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04-30-1987 (City Council) Agenda Packet Date Posted 4-27-87 Time Posted 5:00 P.M. AGENDA CALLED MEETING CITY COUNCIL CITY OF WYLIE, TEXAS THURSDAY, APRIL 30, 1987 7:00 P. M. COMMUNITY ROOM 800 THOMAS STREET CALL TO ORDER INVOCATION ORDER OF PAGE BUSINESS REFERENCE BUSINESS 1 1 - 2 Notification of rate increase for Communication Services, Inc. 2 3 - 7 Consider approval of Poistion Schedule Bond (Amount $711 .00) 3 8 - 28 Consider approval of change to Browning-Ferris, Inc. (BFI) Contract and Compromise Settlement Agreement. 4 Adjourn regular Business meeting . 5 Convene workshop with North Texas Municipal Water District, First Southwest Company and CH2M Hill . 6 Adjourn TO: Mayor and City Council FROM: James Johnson, City Manage_ 9 DATE: April 17 , 1987 RE: Rate Increase for Communications Services, Inc. Communications Services, Inc. which is the Franchise Cable Company for Wylie has give notice that basic cable service will increase from $8 .00 to $9 .00 per month effective June 1 , 1987. This is a 12 1/2% increase. it is their first basic cable increase since taking over the franchise in Wylie. Under the Cable Communications Act of 1984 which deregulated cable service the City of Wylie no longer sets these rates. This is a notification by Communications Services Inc. on the rate increase which is required under this franchise agreement. These rates are subject to market conditions and are not under City authority. COMMUNICATIONS SERVICES, INC. North Texas Regional Office 121 N. Greenville Ave.,Allen,Texas 75002 (214) 727-5723 March 26 , 1987 Mayor and City council City Of Wylie Wylie Tx. 75031 Dear Mayor and City Council , Communications services acquired the cable television system serving Wylie in July 1983 . Since that time we have been very busy rebuilding much of the cable plant as well as providing service to newly constructed homes in the community. The monthly rate for basic service was not changed when CSI purchased the system nor has this rate been adjusted in the 32 years we have operated in Wylie . Our cost for programming, electronic equipment , and other operating expenses have continued to increase while our rates have remained at the present level . This letter is to notify the City Council that the monthly rate for basic cable will increase from $8 . 00 to $9 . 00 on June 1 , 1987 . Our cable customers will be made aware of this adjustment by written notification . Regards , • Ed Musser Regional Manager TO: Mayor and City Council FROM: James Johnson, City Manag DATE: April 27 , 1987 RE: Position Schedule Bond In accordance with Article III (City Council) , Section 16 (Bond) of the City Charter, I am submitting for approval a position schedule bond as required. The positions covered and the amount of bond is as follows : City Manager $50 ,000. Director of Finance $50,000 . City Secretary $50 ,000 . Two (2) Cashiers $25,000 . each Court Clerk $25 ,000 . Umbrella coverage (all other employees) $ 5 ,000 . Charges are $711 .00 , monies re budgeted in the appropriate departments for this expense. INVOICE WYLIE INSURANCE AGENCY, INC. ALL TYPES OF INSURANCE JOHN A. YEAGER 201 CALLOWAY P. O. BOX 4b PHONE 442-3505 WYLIE, TEXAS 75098 ' —I CUSTOMER NO. City of Wylie P.O. Box 428 ed the Company) Wylie, Texas 75098 -you Independent krona *ENT smtwurirm NAMED INSURED PLEASE DETACH AND AMOUNT INVOKE DATE 4-2 O-8 7 1 _ (RETURNWIT_H PAYMENT REMITTED f _ ._).00) CO. POLICY PERIOD CL& TR 1 POLICY NUMBER AND DESCRIPTION t PREMIUM BALANCE N_0� CHARGE CREDIT 813 5-3-87/88 70-2I I $711. 00 • ition sche: -..and •i anager, :. ity secretar• 4 � le covenants and �ourt �l-er • 111 nc?a i e _ or AG t1 i er said Bond and Y '. L. FIRST and its corporate A Fowr CC{ 'OS 19. 87 PREMIUMS DUE AND PAYABLE ON EFFECTIVE DATE OF POLICY THANK YOU WYLIE INSURANCE AGENCY, INC. ANY By Betty Hahn, ttorney-in-Fact �.lkv - cD/C C S - co & Ril2oan.114(7-e5) pi 11-D4C - 3-4-87/th I �c • ❑ UNRSD STNTES FIRE INSURANCE COMPANY ❑ THE NORTH RIVER INSURANCE COMPANY SI WESTCHESTER FIRE INSURANCE COMPANY ❑ INTERNATIONAL INSURANCE COMPANY ♦0. Crum and Forster insurance organizations CONTINUATIONNERIFICATION CERTIFICATE Westchester Fire Insurance Company (hereinafter called the Company) hereby certifies continuance of coverage for. Bond No. 610 129970 1 in the sum of Two hundred twenty five thousand and no/100 Dollars - ($225,000.00) on behalf of City of Wylie in favor of City of Wylie, TX for the term beginning May 3, 1987 and ending on the May 3, 1988 ,subject,however,to all the covenants and conditions of said bond. This ContinuationNerification Certificate is executed upon the express condition that the Company's liability under said Bond and this and all such certificates shall not be cumulative and shall in no event exceed the sum of $225,000.00 IN WITNESS WHEREOF,the Company has caused this instrument to be signed by its officers proper for the purpose and its corporate seal to be hereto affixed this 3rd day of May 19. 87 . WESTCHESTE FIRE INSURANCE COMPANY By Betty Hahn, ttorney-in-Fact ;'.lkv - SO/C Cin - svE CS •- Sow . RA zoao.i i+p-est k _ ,6 .444, 3-4-87/th Cou d CQZ Z-d2SX. -SW 5 Phis Nower of A orney as. granted pursuant to Article IV of the By-Laws of the WESTCHESTER FIRE.!N, L/RANCE .= COMPANY as,no'w in full force and effect. - ARTICLE IV Execution of Instruments. "The Chairman of the Board, Vice-Chairman of the Board,President,or any Vice- President, in conjunction with the Secretary, or any Secretary, if more than one shall be appointed by the Board, or an 'Assistant Secretary,shall have power on behalf of the Corporation: . (a) to execute, affix the corporate seal manually or by facsimile to, acknowledge, verify and deliver any contracts, obligations, instruments and documents whatsoever in connection with its business including,without limiting the foregoing, any bonds,guarantees,undertakings,recognizances,powers of attorney or revocations of any powers of attorney,stipulations, policies of insurance,deeds,leases,mortgages,releases,satisfactions and agency agreements; (b) to appoint, in writing, one or more persons for any or all of the purposes mentioned in the preceding paragraph (a),including affixing the seal of the Corporation." • This Power of Attorney is signed and sealed under and by the authority of Article III, Section 9 of the By-Laws of the WESTCHESTER FIRE INSURANCE COMPANY as now in full force and effect. ARTICLE III Section 9 Facsimile Signatures. "The signature of any officer authorized by the Corporation to sign any bonds,guarantees,undertakings,recognizances,stipulations,powers of attorney or revocations of any powers of attorney and policies of insurance issued by the Corporation may be printed facsimile, lithographed, or otherwise produced . . The Corporation may continue to use for the purposes herein stated the facsimile signature of any person or persons who shall have been such officer or officers of the Corporation,notwithstanding the fact that he may have ceased to be such at the time when such instruments shall be issued." • CERTIFICATE - • State of New Jersey County of Morris I,the undersigned,Assistant Secretary of the WESTCHESTER FIRE INSURANCE COMPANY,DO HEREBY CERTIFY that the foregoing POWER OF ATTORNEY remains in full force and effect and has not been revoked and furthermore that the above quoted abstracts of Article IV and Article III, Section 9 of the By-Laws of the Corporation are now in full force and effect. Signed and sealed at the Township of Morris,New Jersey dated 3rd day of Ma , 19 87 • By istant Secretary John R. Stewart FM. 203.0.131 (12-73) POWER OF ATTORNEY .. . . WESTCHESTER FIRE INSURANCE COMPANY PRINCIPAL OFFICE, NEW YORK, N.Y. i'.1.. • \` KNOW ALL MEN BY THESE PRESENTS: That the WESTCHESTER FIRE INSURANCE COMPANYaCor- ti poration duly organized and existing under the laws of the State of New York, and having its administrative offices in the Township of•Morris, New Jersey, has made, constituted and appointed, and does by these presents make, constitute and appoint J. D. Hamlet, L. D. Beck, Tommie Abshier, J. B. LeFlore, L. M. Satterwhite, Pat Tijerina, R. *Perez and Betty Hahn of Dallas, Texas, each its true and lawful Agent(s) and Attorney(s)-in-Fact, with full power and authority hereby conferred in its name, place and stead, to execute, seal, acknowledge and deliver: Any and all bonds and undertakings -- • • • and to bind the Corporation thereby as fully and to the same extent as if such bonds had been duly executed and acknowledged by the regularly elected officers of the Corporation at its offices in Morris Township, - New Jersey in their own proper persons. - This Power of Attorney limits the act of those named therein to the bonds and undertakings specifically named therein, and they have no authority to bind the Company except in the manner and to the extent therein stated. This Power of Attorney revokes all previous powers issued-in behalf of the attorney(s)-in-fact named above. IN WITNESS WHEREOF the Westchester Fire Insurance Company has caused these presents to be signed and attested by its appropriate officers and its corporate seal hereunto affixed this 14th day of .TanuAry , 19_B.Z. .� ��N�gif9. : 711A • Attest: WESTCHESTER FIRE INSURANCE COMPANY 1 P A. , /La`�s'/' / '/ / ' ''� 41,1 �y��Rnet€A� �� t"N� / Assistant Secretary Vice President Richard A. Annese Jam- - . Zachowski STATE OF NEW JERSEY) ss.: COUNTY OF MORRIS ) On this 14th dayof January 87, , 19before the subscriber, a duly , qualified Notary Public of the State of New Jersey, came the above-mentioned Vice President and Assistant Secretary of the Westchester Fire Insurance Company, to me personally known to be the officers described • in, and who executed the preceding instrument, and they acknowledged the execution of the same, and being b • sworn, deposed and said, that they are the officers of said Company aforesaid, and that the seal' , c$o receding instrument is the Corporate Seal of said Company, and the said Corporate Seal and °. itir•sign. s officers were duly affixed and subscribed to the said instrument by the authority and z difief f t' . • Company. = IN1ONY HEREOF, I have hereunto set my hand and affixed my seal at the Township of Morris, the * dare reir fi ove written. A. ' HERBERT H. UNDER 7'g ik$ relTtr: CT- 7; y ,I RSEY ♦a, ►•� 1...en. swn Expires April 25, 1988 Notary Public / SALLINGER, NICHOLS, JACKSON, KIRK & DILLARD (Formerly Saner, Jack, Sallinger & Nichols) ALFRED SALLINGER Attorneys & Counselors at Law PRESTON CENTER OFFICE N.LOUIS NICHOLS 1800 Lincoln Plaza 8222 Douglas Ave.Suite 707 LAWRENCE W.JACKSON 500 N. Akard Dallas,Texas 75226 TIM KIRK Dallas, Texas 75201 12141 692-1218 ROBERT L DILLARD III (214) 954-3333 ROBERT D.HEMPHILL ROBERT E.HAGER PETER G.SMITH ROY L ARMSTRONG April 16, 1987 ROMERT L.DILLARD.JR. DAVID M.MERMAN JOHN F.ROENM III OF COUNSEL BRUCE A.STOCKARD PAM GANDAL EUDARIC Mr. James Johnson Acting City Manager City of Wylie P. O. Box 428 Wylie, Texas 75098 Re: City of Wylie - Browning-Farris, Inc. Garbage Disposal Contract Dear Mr. Johnson: Under cover of my letter of April 10 to Mr. Hill of Browning-Farris Industries, I sent to the City a proposed Contract and Release and Compromise Settlement Agreement. I have just spoken with Mr. Hill, and they have countered with a change to the last sentence of the first paragraph on page 11 of the Contract. They would like to have this sentence read as follows: If, after said public hearing, the City Council makes a finding, reasonably based upon the evidence, that Contractor has substantially breached the terms of this Contract, the City Council may by two-thirds vote terminate this Contract. I am enclosing a new page 11 containing this new language so that if the Council wishes to accept this change, the new page may be substituted in the copies sent to the City. Please let me know by letter if the Council does not accept this requested revision. I am also enclosing a new copy of the Release and Compromise Settlement Agreement concerning the old landfill site. The Contractor has suggested that the words "lease of landfill site" in paragraphs 3 and 4 of the first page be put in caps. I do not feel it necessary to even consult the Council concerning this change, since it does not substantially affect the terms of the Settlement Agreement. If you have any question, please give me a call. Very truly yours, SALLINGER, NICHOLS, JACKSON, KIRK & DILLARD By4irrince Jac son LWJ/sb Enclosures cc: Mr. Darryl S. Hill (w/Encls.) Browning-Farris Industries 19.00 TERMINATION FOR CAUSE If at any time the Contractor shall fail to substantially perform terms, covenants or conditions herein set forth, the City, after a hearing described herein, may terminate this Contract and the rights and privileges granted to Contractor herein. The aforesaid hearing shall not be held until notice of same has been given to the Contractor by registered or certified mail addressed to the Contractor at the address set forth herein, and a period of at least ten (10) days has elapsed since the receipt of such notice by Contractor. The notice shall specify the time and place of the hearing and shall include the specific reasons in support of the City's claim that the Contractor has substantially breached the terms and provisions of this Contract. The hearing shall be conducted in public by the City Council of the City and the Contractor shall be allowed to be present and shall be given full oportunity to answer such claims as are set out against it in the aforesaid notice. If, after said public hearing, the City Council makes a finding, reasonably based upon the evidence, that Contractor has substantially breached the terms of this Contract, the City Council may by two-thirds vote terminate this Contract. 20.00 NOTICES Any notice required or permitted to be delivered hereunder shall be in writing and shall be deemed to be delivered when deposited in the United States mail, postage prepaid, certified mail, return receipt requested, addressed to the respective party of the address set forth below: if to the City, at: P.O. Box 428 Wiley, Texas 75098 Attn: City Secretary if to the Contractor, at: P.O. Drawer M East Cleveland Road Hutchins, Texas 75141 Attn: District Manager or such other addresses as the parties may hereafter specify by written notice delivered in accordance herewith. 21.00 APPROVAL This Contract shall not be considered fully executed nor binding on the City or the Contractor until the same shall have been executed by the Contractor, the Mayor and the City Secretary of the City. 22.00 AMENDMENT All provisions of this Contract shall be strictly complied with and conformed to by the Contractor, and no amendment to this Contract shall be made except upon the written consent of the parties. No amendment shall be construed to release either party from any obligation under this Contract except as specifically provided for in such amendment. -11- RELEASE AND COMPROMISE SETTLEMENT AGREEMENT THIS RELEASE BY AND BETWEEN the City of Wylie, Texas, hereinafter referred to as "City", Moore Industrial Disposal, Inc., hereinafter referred to as "Moore", and BFI Waste Systems (Browning-Ferris, Inc., a Delaware corporation), hereinafter referred to as 'BFI". WHEREAS, City heretofore granted Moore a franchise for the collection and disposing of residential and commercial solid waste within the City, and by lease dated February 26, 1985, a copy of which is attached hereto as Exhibit "A" and made a part hereof for all purposes, leased to Moore that a certain tract of land described in Exhibit "A" and commonly known as the Wylie Land Fill; and WHEREAS, BFI has purchased and has taken over the operation of Moore; and WHEREAS, bona fide disputes and controversies exist between the Parties concerning the obligation of Moore and BFI to pay the rentals due under said lease and their obligation to make certain repairs to the premises; and WHEREAS, the Parties hereto desire to compromise and settle all claims and causes of action of any kind whatsoever which the Parties have arising out of the matters mentioned herein and intend that the terms and conditions of their compromise settlement be set forth in this Release and Compromise Settlement Agreement; THEREFORE, for and in consideration of the recitals set forth above, the mutual covenants herein expressed and the receipt by the City of Wylie, Texas, of the sum of Twenty-Five Thousand ($25,000.00) Dollars in cash, the receipt and sufficiency of said consideration being hereby acknowledged, all Parties hereby agree as follows: 1. The "Lease of Landfill Site", Exhibit "A", is hereby terminated and all rights and obligations thereunder between City and Moore (including BFI by virtue of its acquisition of Moore) are terminated; 2. Moore and BFI agree to pay to City the sum of Twenty-Five Thousand ($25,000.00) Dollars, in cash, as mentioned above; 3. City does hereby release, acquit and forever discharge Moore and BFI, their agents, servants and employees from any and all claims or causes of action which City might have or that might arise hereafter, directly or indirectly attributable to said LEASE OF LANDFILL SITE; 4. Moore and BFI do hereby release, acquit and forever discharge City, its agents, servants and employees from any and all claims or causes of action which Moore and BFI might have or that might arise hereafter, directly or indirectly attributable to said LEASE OF LANDFILL SITE. / 9 All Parties warrant that they have read this Release and Compromise Settlement Agreement and fully understand it to be a compromise and settlement and release of all claims, known or unknown, present or future, that the Parties may have against each other, arising out of the matters described. Executed this day of , 1987. CITY OF WYLIE, TEXAS Attest: BY CITY SECRETARY MAYOR MOORE INDUSTRIAL DISPOSAL, INC. Attest: BY SECRETARY PRESIDENT BFI WASTE SYSTEMS BROWNING-FERRIS, INC. Attest: By • /7 JAN3IE jLEASE OF LANDFILL SITE \\I STATE OF TEXAS COUNTY OF COLLIN KNOW ALL MEN BY THESE PRESENTS: The City of Wylie, 'Texas, Lessor, a municipal corporation of Collin County, Texas, herein also called "City," acting by and through John W. Akin, its duly elected Mayor, and Moore Industrial Disposal, Inc., Lessee, of Dallas County, Texas, herein also called "Contractor," acting by and through Stephen L. Moore, its duly authorized representative, do hereby covenant, lease and agree as follows: 1. GRANT OF LEASE. That City of Wylie, Texas, in consideration of the mutual covenants and agreements to be performed by Lessee and upon terms and conditions herein stated, does hereby lease, demise and let unto Lessee, Moore Industrial Disposal, Inc., and Lessee does hereby lease form Lessor, that certain tract of land commonly known as the Wylie landfill, more particularly described .in Exhibit A, which is attached hereto and made a part hereof for all purposes. 2. PURPOSE. This Lease is for the sole purpose of permitting Lessee to operate on said property a landfill for the purpose of disposing of solid waste. 3. _ TERM OF LEASE. Unless otherwise terminated or modified pursuant to the terms of this agreement, this Lease shall be for a term of three (3) years commencing on the i{S/- day of //Ql , 19(5. At the end of the third year such Lease may be continued on a year to year basis by mutual agreement between the parties up to a maximum of six (6) years. 4. TERMINATION OF LEASE. Upon a finding by the City Council of the City of Wylie that good cause exists to terminate the Lease, the Lease may be terminated by the City upon one (1) year advance. notice to Contractor. Provided, however, in the event the City Council's finding is that Contractor's operation of the landfill is in violation of this agreement or jeopardizes the City's state permit, the one (1) year advance notice shall not be required prior to termination of the Lease. Further, Moore Industrial Disposal, Inc. may terminate the contract EXHIBIT "A" 4 7 (. a`� with one (1) year advance notice at any time following the completion of the initial five (5) year contract period. 5. STATE AND GOVERNMENTAL REGULATIONS. Contractor agrees to operate said landfill in accordance with all State, County and City regulations and in the event Contractor if prevented or 'dered to cease operations because of violation of such regulations, Contractor's obligation for rental payments shall not terminate and shall continue during any shutdown period. In any case where violations of state, county and City regulations are noted, said violations will be forwarded to Moore Industrial Disposal, Inc. whereupon they shall be allowed thirty (30) days to come into compliance prior to final action by the City Council. Moore Industrial Disposal, Inc. will be copied on all correspondence from regulatory agencies. - 6. RENT. Contractor agrees and shall pay to the City as rent the sum of Two Thousand Five Hundred Dollars ($2,500.00) per month, payable within fifteen (15) days after the end of each preceding month during the term of this Lease. 7. OTHER CHARGES PAYABLE BY CONTRACTOR. Contractor agrees to pay the City of Wylie a street improvement fund fee of Four Thousand Five Hundred Dollars ($4,500.00) per year expressly for the purpose of maintenance of Martinez Lane and Alanis Street. Such charges shall be paid by Contractor in installments of One Thousand One Hundred Twenty-five Dollars ($1,125.80) per quarter and shall be the limit of Contractor's liability for damages to said streets. 8. LANDFILL RATES. It is contemplated that Contractor will be depositing in said landfill refuse collected outside the corporate limits of the City as well as refuse and solid waste collected from residences and businesses of the City of Wylie. Landfill rates to be charged by Contractor for refuse and solid waste collected outside the corporate limits of the City of Wylie shall be at the sole discretion of the Contractor. It is also contemplated that Contractor will be the City's refuse collector for solid waste generated within the corporate limits of the City. Any increase in rates charged for solid waste collected within the corporate limits of the City of Wylie may be reviewed by the City Council of the City of Wylie, and at their discretion, the Lease rental provided for herein -9- / may be adjusted upward to a percentage equal to that requested by Moore Industrial Disposal, Inc. 9. FREE USE OF LANDFILL BY CITY RESIDENTS. Any resident of the City cesiring to dispose of any residential refuse in the landfill may do so, free of charge, by presenting the Contractor with a current water utility bill receipt from the City of Wylie and producing his or her driver's license for identification purposes. Any commercial establishment within the City desiring to transport solid waste to the landfill shall pay a posted charge to be determined by Contractor and approved by the City Council of the City of Wylie. 10. CONDITIONS AND OBLIGATIONS OF CITY. The following conditions and requirements shall be the obligation of the City of Wylie. a. The City shall be responsible for all legal fees and costs, if any, in any actions brought by third parties that shall be related to the operation of the landfill by the City prior to the start of Contractor's landfill operation. b. The City shall use its best efforts to require all non-hazardous solid waste generated within the City of Wylie to be disposed of in said landfill during the term of this Lease. 11. The Contractor shall be responsible for legal fees, damages and other actions brought about by Contractor's operation .of the landfill. 12. INDEMNIFICATION AND INSURANCE. The Contractor assumes all risk of loss or injury to property or persons arising from any of its operations under the agreement with the exception of damages to street surfaces to be trafficked by Contractor's vehicles in the normal course of Contractor's business, and agrees to indemnify and hold harmless the City from all claims, demands, suits, judgments, costs or expenses, including expenses of litigation and attorney's fees, arising from any such loss or injury. It is expressly understood that the foregoing provisions shall not in any way limit the liability of Contractor. The Contractor agrees to carry insurance during the entire term of this agreement as follows: a. Workmans Compensation Insurance covering all employees of Contractor engaged in any operation covered by this agreement. / • b. Automobile and Public Liability Insurance in amounts not less than those established as the maximum recovery limits under the Texas Tort Claims Act. . c. Contractor shall furnish the City of Wylie current copies of the above mentioned insurance policies. 13. BUILDING ON PROPERTY. No building or permanent structure shall be constructed on the landfill site without prior written approval of the City Council of the City of Wylie. 14. COMPLETED AREAS. The landfill property includes 7.4 acres in the northeast corner of said tract which has been previously used by the City. This area is not covered by this contract and will be used by the City, who shall be responsible for the final ground cover. It is also agreed that Contractor will properly cover all other filled areas as they are filled so as to reclaim the land as it is fully filled on an acre by acre basis. It is agreed that the City shall have the right to use such reclaimed land as soon as fill has been completed and the land is covered with the final ground cover. 15. DAYS OF OPERATION. Landfill hours will be Monday through Friday from 8:00 a.m. to 5:00 p.m. and on Saturday from 8:00 a.m. to 12:00 noon. Said landfill may be closed on the legal holidays recognized by the City. Said_.hours may be changed with prior approval of the City. • 16. ASSIGNMENT. This Lease and agreement and any right occurring under it shall not be assigned by Contractor to any other party without the written consent of the City Council of the City. 17. BANKRUPTCY. This Lease shall terminate in the case of voluntary or involuntary bankruptcy on the part of Contractor. 18. VENUE. This agreement is made in Collin County, Texas, and all actions brought under this agreement shall be brought in Collin County, Texas. 19. MODIFICATION. This agreement constitutes the entire agreement and understanding between the parties and shall not be altered, changed or amended except by written agreement between the parties. 20. WAIVER OF DEFAULT. No waiver by the parties hereto of any default or breach of any term, condition or covenant of this Lease shall be deemed to be -4- a waiver of any subsequent default or breach of the same or any other term, condition or covenant contained herein. 21. SEVERABILITY CLAUSE. Any provision of this Lease that shall be declared illegal, void or unenforceable, shall not affect the remaining provisions which shall remain in full force and effect. 22. NOTICES. Any notice or document required or permitted to be delivered hereunder may be delivered in person or shall be deemed to be delivered, whether actually received or not, when deposited in the United States mail, postage prepaid, registered or certified mail, return receipt requested, addressed to the parties at the addresses indicated below, or at such other addresses as may have theretofore been specified by written notice delivered in accordance herewith: City of Wylie, Texas Post Office Box 428 Wylie, Texas 75098 Attention: City Secretary Moore Industrial Disposal, Inc. 2128 Hawes Avenue Dallas, Texas 75235-4696 23. APPROVAL BY CITY COUNCIL. This agreement shall not be considered fully executed nor binding on the City until the same shall have been executed by Contractor and the Mayor of the City of Wylie and attested by the City Secretary of the City of Wylie. 24. EFFECTIVE DATE. This agreement shall become effective on the ;614 day of , 19 AT ST: CITY OF WYLIE ( g&E4 764 O'l2-A City Seerary ohn W. Akin (2 .) //7 Date / � MOORE INDUSTRIAL DISPOSAL, INC. By .222/c/r Z(0 1/71=21-, Michael W. Moore, President Date W K85-0130 -5- CONTRACT THIS CONTRACT, made and entered into this day of , 1987, by and between the City of Wylie, Texas, a Municipal Corporation of Collin County, Texas. (hereinafter called the "City") and Moore Industrial Disposal, Incorporated, a wholely owned subsidiary of Browning-Ferris, Inc., (said corporations hereinafter called "Contractor"). WITNESSETH: WHEREAS, the parties hereto desire for Contractor to provide Refuse collection within the City and to perform such work as may be incidental thereto in accordance with the terms of this Contract. NOW, THEREFORE, in consideration of the following mutual agreements and covenants, it is understood and agreed by and between the parties hereto as follows: 1.00 GRANT The Contractor is hereby granted a franchise, license and privilege within the territorial jurisdiction of the City and shall furnish all personnel, labor, equipment, trucks, and all other items necessary to provide Refuse collection, removal and disposal services as specified and to perform all of the work called for and described in the Contract. 2.00 DEFINITIONS 2.01 Bags - Plastic sacks designed to store Refuse with sufficient wall strenth to maintain physical integrity when lifted by the top. Total weight of a bag and its contents shall not exceed 35 lbs. 2.02 Bin - Metal receptacle designed to be lifted and emptied mechanically for use only at Commercial and Industrial Units. 2.03 Bulky Waste - Stoves, refrigerators, water tanks, washing machines, furniture and other waste materials other than Construction Debris, Dead Animals, Hazardous Waste or Stable Matter with weights or volumes greater than those allowed for Bins or Containers, as the case may be. 2.04 Bundle - Tree, shrub and brush trimmings or newspapers and magazines securely tied together forming an easily handled package not exceeding three feet in length or 35 lbs. in weight. 2.05 City - City of Wylie, Texas. 2.06 Commercial and Industrial Refuse - All Bulky Waste, Construction Debris, Garbage, Rubbish and Stable Matter generated by a Producer at a Commercial and Industrial Unit. 2.07 Commercial and Industrial Unit - All premises, locations or entities, public or private, requiring Refuse collection within the corporate limits of the City not a Residential Unit. / 7 2.08 Construction Debris - Waste building materials resulting from construction, remodeling, repair or demolition operations. 2.09 Container - A receptacle with a capacity of greater than 20 gallons but less than 35 gallons constructed of plastic, metal or fiberglass, having handles of adequate strength for lifting, and having a tight fitting lid capable of preventing entrance into the container by vectors. The mouth of a container shall have a diameter greater than or equal to that of the base. The weight of a Container and its contents shall not exceed 60 lbs. 2.10 Contractor - Moore Industrial Disposal Incorporated. 2.11 Dead Animals - Animals or portions thereof equal to or greater than 10 lbs. in weight that have expired from any cause, except those slaughtered or killed for human use. 2.12 Disposal Site - A Refuse depository, physically located in the City or in close proximity thereto, including but not limited to sanitary landfills, transfer stations, incinerators, and waste processing/separation centers licensed, permitted or approved by all governmental bodies and agencies having jurisdiction and requiring such licenses, permits or approvals to receive for processing or final disposal of Refuse and Dead Animals. 2.13 Garbage - Any and all dead animals of less than 10 lbs. in weight, except those slaughtered for human consumption; every accumulation of waste (animal, vegetable and/or other matter) that results from the preparation, processing, consumption, dealing in, handling, packing, canning, storage, transportation, decay or decomposition of meats, fish, fowl, birds, fruits, grains or other animal or vegetable matter (including, but not by way of limitation, used tin cans and other food containers; and all putrescible or easily decomposable waste animal or vegetable matter which is likely to attract flies or rodents); except (in all cases) any matter included in the definition of Bulky Waste, Construction Debris, Dead Animals, Hazardous Waste, Rubbish or Stable Matter. 2.14 Hazardous Waste - Waste, in any amount, which is defined, characterized or designated as hazardous by the United States Environmental Protection Agency or appropriate State agency by or pursuant to Federal or State law, or waste, in any amount, which is regulated under Federal or State law. For purposes of this Contract, the term Hazardous Waste shall also include motor oil, gasoline, paint and paint cans. 2.15 Producer - An occupant of a Commercial and Industrial Unit or a Residential Unit who generates Refuse. 2.16 Refuse - This term shall refer to Residential Refuse and Bulky Waste, Construction Debris and Stable Matter generated at a Residential Unit, unless the context otherwise requires, and Commercial and Industrial Refuse. 2.17 Residential Refuse - All Garbage and Rubbish generated by a Producer at a Residential Unit. -2 /17 - 2.18 Residential Unit - A dwelling within the corporate limits of the City occupied by a person or group of persons comprising not more than four families. A Residential Unit shall be deemed occupied when either water or domestic light and power services are being supplied thereto. A condominium dwelling, whether of single or multi-level construction, consisting of four units, shall be treated as a Residential Unit, except that each single-family dwelling within any such Residential Unit shall be billed separately as a Residential Unit. 2.19 Rubbish - All waste wood, wood products, tree trimmings, grass cuttings, dead plants, weeds, leaves, dead trees or branches thereof, chips, shavings, sawdust, printed matter, paper, pasteboard, rags, straw, used and discarded mattresses, used and discarded clothing, used and discarded shoes and boots, combustible waste pulp and other products such as are used for packaging, or wrapping crockery and glass, ashes, cinders, floor sweeping, glass, mineral or metallic substances, and any and all other waste materials not included in the definition of Bulky Waste, Construction Debris, Dead Animals, Garbage, Hazardous Waste or Stable Matter. 2.20 Stable Matter - All manure and other waste matter normally accumulated in or about a stable, or any animal, livestock or poultry enclosure, and resulting from the keeping of animals, poultry or livestock. 3.00 SCOPE OF WORK The work under this Contract shall consist of the items contained in the performance standards, including all the supervision, materials, equipment, labor and all other items necessary to complete said work in accordance with the Contract. A copy of said performance standards is attached hereto as Exhibit 'B" and made a part hereof for all purposes. 4.00 COLLECTION OPERATION 4.01 Service Provided (a) Contractor shall provide curbside collection service for the collection of Residential Refuse to each Residential Unit 2 times per week. Containers, Bags and Bundles shall be placed at curbside by 7:00 a.m. on the designated collection day. (b) Contractor shall provide Bin Collection service for the collection of Commercial and Industrial Refuse to Commercial and Industrial Units according to individual agreement. (c) The Contractor shall provide for the special collection from Residential Units of Bulky Waste, Construction Debris and Stable Matter. Also, the Contractor may from time to time provide for the special collection of Dead Animals at Commercial and Industrial Units and Residential Units at its sole discretion and upon such terms and conditions as Contractor shall specify. (d) The work under this Contract does not include the collection and disposal of any increased volume resulting from a flood, tornado or similar or different Act of God over which the Contract has no -3- , control. In the event of such a flood, tornado, or other Act of God, the Contractor and the City will negotiate the payment to be made to the Contractor, if the Contractor and the City agree that such increased volume is to be handled by the Contractor. Further, if the City and the Contractor reach such an agreement, then the City shall grant the Contractor variances in routes and schedules as deemed necessary by the City Manager. 4.02 Location of Bins, Containers, Bags and Bundles for Collection (a) Each Container, Bag and Bundle shall be placed at curbside for collection. Curbside refers to that portion of right-of-way adjacent to paved or traveled City Roadways (including alleys). Containers, Bags and Bundles shall be placed as close to the roadway as practicable without interfering with or endangering the movement of vehicles or pedestrians. When construction work is being performed in the right-of-way, Containers, Bags and Bundles shall be placed as close as practicable to an access point for the collection vehicle. Contractor may decline to collect any Container, Bag and Bundle not so placed or any Residential Refuse not in a Bag. (b) Contractor shall provide Bins for Commercial and Industrial Units whenever customers request their use. Each Bin shall be placed in an accessible, outside location on a hard surface according to individual agreement. Contractor may decline to collect Refuse in Bins not so placed. 5.00 COLLECTION OPERATION 5.01 Hours of Operation (a) Collection of Residential Refuse shall not start before 7:00 a.m. or continue after 6:00 p.m. on the same day. Exceptions to collection hours shall be effected only upon the mutual agreement of the City and Contractor, or when Contractor reasonably determines that an exception is necessary in order to complete collection on an existing collection route due to unusual circumstances. 5.02 Routes of Collection (a) Residential Unit collection routes shall be established by the Contractor. Contractor shall submit a map designating the Residential Unit collection routes to the City for their approval, which approval shall not be unreasonably withheld. City shall publish at its expense at least once during each calendar year a map of such Residential Unit collection routes in the newspapers published in the immediate area. The published map shall be of such size to clearly show all pertinent information. The Contractor may from time to time propose to City for approval changes in routes or days of collection affecting Residential Units, which approval shall not be unreasonably withheld. Upon City's approval of the proposed changes, City shall promptly give written or published notice to the affected Residential Units. -4- ��O (b) Commercial and Industrial Unit collection routes shall be established by the Contractor at its sole discretion. (c) Commercial and Industrial Unit collection routes shall be established by the Contractor at its sole discretion. 5.03 Holidays - The following shall be holidays for purposes of this Contract: New Year's Day Memorial Day Independence Day Labor Day Thanksgiving Day Christmas Day Contractor may decide to observe any or all of the above mentioned holidays by suspension of collection service on the holiday, but such decision in no manner relieves Contractor of his obligation to provide collection service at Residential Units at least once per week. 5.04 Complaints - All complaints shall be made directly to the Contractor and shall be given prompt and courteous attention. In the case of alleged missed scheduled collections, the Contractor shall investigate and, if such allegations are verified, shall arrange for the collection of the Refuse not collected within 48 hours after the complaint is received. 5.05 Collection Equipment - The Contractor shall provide an adequate number of vehicles for regular collection services. All vehicles, Bins and other equipment shall be kept in good repair, appearance, and in a sanitary condition at all times. Each vehicle shall have clearly visible on each side the identity and telephone number of the Contractor. 5.06 Office - The Contractor shall maintain an office or such other facilities within close proximity to the City through which he can be contacted. It shall be equipped with sufficient telephones and shall have a responsible person in charge from 8:00 a.m. to 4:30 p.m. on regular collection days. 5.07 Hauling - All Refuse hauled by the Contractor shall be contained, tied or enclosed so that leaking, spilling or blowing are prevented. 5.08 Disposal - All Refuse collected for disposal by the Contractor shall be hauled to a Disposal Site. Contractor shall be responsible for furnishing or providing for an adequate disposal site sufficient to receive all Refuse or other waste generated by the City and required to be collected and disposed of by this Contract and all Refuse required to be collected under this Contract shall be disposed of by Contractor at such disposal site. The charge for disposal shall be included in the rates set forth in the Proposal for each Commercial and Industrial Unit and Residential Unit serviced by the Contractor. 5.09 Notification - The City shall notify all Producers at Residential Units about complaint procedures, rates, regulations, and day(s) for scheduled Refuse collection. -5- 5.10 Point of Contract - All dealings, contacts, etc., between the Contractor and the City shall be directed by the Contractor to The City Manager and by the City to Contractor's District Manager. 6.00 COMPLIANCE WITH LAW The Contractor shall conduct operations under this Contract in compliance with all applicable laws; provided, however, the General Specifications of this Contract shall govern the obligations of the Contractor where there exists conflicting regulations of the City on the subject. 7.00 EFFECTIVE DATE This Contract shall be effective upon the execution of the Contract and performance of such Contract shall begin on 8.00 NONDISCRIMINATION The Contractor shall not discriminate against any person because of race, sex, age, creed, color, religion or national origin. 9.00 INDEMNITY The Contractor will indemnify and save harmless the City, its officers, agents, servants, and employees from and against any and all suits, actions, legal proceedings, claims, demands, damages, costs, expenses, and attorneys' fees arising out of a willful or negligent act or omission of the Contractor, its officers, agents, servants and employees; provided, however, that the Contractor shall not be liable for any suits, actions, legal proceedings, claims, demands, damages, costs, expenses and attorneys' fees arising out of a willful or negligent act or omission of the City, its officers, agents, servants and employees or arising out of a claim that the City was not authorized to award this Contract or such was in conflict with the terms of a prior Contract executed by the City. 10.00 LICENSES AND TAXES The Contractor shall obtain all licenses and permits (other than the license and permit granted by the Contract) and promptly pay all taxes required by the City and by the State. 11.00 TERM The Contract shall be for a five (5) year period beginning upon the execution of the Contract and ending five (5) years thereafter. The initial five (5) year term of this Contract shall automatically be extended for successive additional five (5) year terms, unless either party notifies the other party in writing, not less than sixty (60) days prior to the expiration of the initial five (5) year term or of any successive five (5) year term, of its intentions to terminate this Contract. Any such written notice shall be served by certified or registered mail, return receipt requested. 12.00 INSURANCE The Contractor shall at all times during the Contract maintain in full force and effect Employer's liability, Workmen's Compensation, Public Liability and Property Damage Insurance, including contractual liability coverage for the provisions of Section 9.00. All insurance shall be by insurers and for policy limits acceptable to the City and before commencement of work hereunder the Contractor agrees to furnish the City certificates of insurance or other evidence satisfactory to the City to the effect that such insurance has been procured and is in force. The certificates shall contain the following express obligations: "This is to certify that the policies of insurance described herein have been issued to the insured for whom this certificate is executed and are in force at this time. In the event of cancellation or material change in a policy affecting the certificate holder, thirty (30) days prior written notice will be given the certificate holder." For the purpose of the Contract, the Contractor shall carry the following types of insurance in at least the limits specified below: Coverages Workmen's Compensation Statutory Employer's Liability $500,000 Bodily Injury Liability $500,000 each occurrence Except Automobile $1,000,000 aggregate Automobile Bodily Injury $500,000 each person Liability $1,000,000 each occurrence Automobile Property Damage $500,000 each occurrence Liability Excess Umbrella Liability $5,000,000 each occurrence As an alternative to the above, Contractor may insure the above public liability and property coverages under a plan of self-insurance. The coverages may be provided by the Contractor's parent corporation. Contractor agrees to furnish the City with certificates satisfactory to the City evidencing such plan of self-insurance. 13.00 BASIS AND METHOD OF PAYMENT 13.01 Collection and Disposal Rates (a) The rate for collection services required to be performed pursuant to Section 4.01 (a) shall be the rate set forth in Exhibit "A", attached hereto and made a part hereof, subject to adjustment in accordance with Section 13.02. (b) For collection services required to be performed pursuant to Section 4.01 (b), the charges shall not exceed the rates set forth in Exhibit -7- ) "A", attached hereto and made a part hereof, subject to adjustment in accordance with Section 13.02. (c) For special collection provided by the Contractor pursuant to Section 4.01 (c), the charges are to be negotiated between the Contractor and Producer prior to collection. If agreement cannot be reached, the matter may be submitted to the City for determination of a reasonable fee. (d) The Refuse collection charges provided by Sections 13.01 (a)-(b) shall include all disposal costs. (e) Contractor may, at its option, elect to acquire Bags from a supplier of its choice and attempt to market such Bags to Residential Units; however, this option in no way interferes with the right of each owner or occupant of a Residential Unit to obtain Bags from another source. 13.02 Modification to Rates (a) The fees which may be charged by the Contractor for the second and subsequent years of the term hereof shall be adjusted upward or downward to reflect changes in the cost of operations, as reflected • by fluctuations in the Consumer Price Index for Urban Wage Earners and Clerical Workers (All Items) and the Consumer Price Index for Urban Wage Earners and Clerical Workers, Expenditures Category "Gasoline," both as published by the U.S. Department of Labor, Bureau of Labor Statistics. As of the last month of the first year of the Contract and every twelve (12) months thereafter (the "Rate Modification Date") the fees shall be increased or decreased for the ensuing twelve (12) month period in a percentage amount equal to the net percentage change of the All Items Index plus the net percentage change of the Gasoline Index. All percentage changes are to be computed as the difference between the Index value for the first full month prior to the commencement of the Contract and the index value for the Rate Modification Date divided by the index value for the first full month prior to the commencement of the Contract. (b) As scon as possible after a Rate Modification Date, Contractor shall send to City a comparative statement setting out for both the All Items Index and the Gasoline Index. (i) the index value on the first full month prior to the commencement of the Contract; (ii) the index value on the Rate Modification Date preceding the date of the statement; (iii) the net percentage change; (iv) the composite percentage change equal to the net percentage change in the All Items Index plus the net percentage change in the Gasoline Index; and -8 (7?/7/ - (v) the increase or decrease in the fees which may be charged by the Contractor. On the next billing date after the receipt of the comparative statement, the City shall pay to the Contractor or the Contractor shall credit to the City, as the case may be, a lump sum equal to any increase or decrease applicable to that portion of the current period which has elapsed and, thereafter, the fees charged by the Contractor shall be modified to reflect any change until a different comparative statement is received by the City. (c) Notwithstanding the above, if the increase in fees for any twelve (12) month period exceeds eight percent (8%), then the City may within ninety (90) days after Contractor's Provision of the aforesaid comparative statement showing such increase terminate this Contract; provided, however, the City may so terminate this Contract effective only upon not less than forty-five (45) days prior written notice to Contractor and the provisions sections of 13.02 (a) and (b) shall apply until the effective date of termination. (d) In addition to the above, the fees which may be charged by the Contractor hereunder shall be increased to cover increases in disposal costs at the Disposal Site. Provided, however, the City shall have the right to terminate this Contract if, after hearing, the City Council determines that disposal site fees have become excessive. (e) In addition to the above, the Contractor may petition the City at any time for additional rate and price adjustments at reasonable times on the basis of unusual changes in its cost of operations, such as revised laws, ordinances or regulations, changes in location of disposal sites, an increase in the number of Residentail Units and for other reasons. 13.03 Contractor to Act as Collector - The Contractor shall submit statements to and collect from all Bin Type Commercial and Industrial Units and Residential Units for services provided pursuant to Sections 4.01 (b)-(c). 13.04 Delinquent and Closed Accounts (a) The Contractor shall discontinue Refuse collection service at any Residential or Hand Commercial Unit as set forth in a written notice sent to it by the City. Upon further notification by the City, the Contractor shall resume Refuse collection on the next regularly scheduled collection day. The City shall indemnify and hold the Contractor harmless from any claims, suits, damages, liabilities or expenses (including but not limited to expenses of investigation and attorney's fees) resulting from the Contractor's discontinuing service at any location at the direction of the City. (b) The Contractor shall have the right to discontinue Refuse collection service at any Commercial and Industrial Unit delinquent in its payments. -9 45 - 13.05 Contractor Billings to City - The Contractor shall bill the City for service rendered to Residential and Hand Commercial Units within ten (10) days following the end of the month and the City shall pay the Contractor on or before the 15th day following the end of such month. Such billing and payment shall be based on the price rates and schedules set forth in the Contract Documents. The Contractor shall be entitled to payment for services rendered to Residential Units irrespective of whether or not the City collects from the customer for such service. 14.00 TRANSFERABILITY OF CONTRACT Other than by operation of law, no assignment of the Contract or any right accruing under this Contract shall be made in whole or in part by the Contractor without the express written consent of the City, which consent shall not be unreasonably withheld; in the event of any assignment, the assignee shall assume the liability of the Contractor. 15.00 CONTRACT The Contractor, having been granted a franchise, license and privilege to provide Refuse collection, removal and disposal services within the corporate limits of the City, shall at all times have the right of first refusal for the collection of Dead Animals from Residential Units and from Commercial and Industrial Units. 16.00 OWNERSHIP Title to Refuse and Dead Animals shall pass to the Contractor when placed in Contractor's collection vehicle, removed by Contractor from a Bin or Container, or removed by Contractor from the customer's premises, whichever last occurs. 17.00 FRANCHISE FEE The Contractor shall pay to the City fifteen percent (15%) of all amounts received by the Contractor for Bin Type Commercial and Industrial Refuse collection and disposal services provided pursuant to this Contract. Such payment shall be made to the City on or before the 25th day of each month for amounts received by the Contractor for the performance of services during the immediately preceding month. 18.00 BOOKS AND RECORDS The City and the Contractor agree to maintain at their respective places of business adequate books and records relating to the performance of their respective duties under the provisions of this Contract and such books and records shall be made available at any time during business hours for inspection by the other party, at the inspecting party's expense, upon reasonable advance notice; provided, however, the City may not inspect or audit any books and records pertaining to the cost of Contractor's operations, except to the extent pertaining to increases in the fees which may be charged by Contractor under Section 13.02 (d) and (e). -10- 19.00 TERMINATION FOR CAUSE If at any time the Contractor shall fail to substantially perform terms, covenants or conditions herein set forth, the City, after a hearing described herein, may terminate this Contract and the rights and privileges granted to Contractor herein. The aforesaid hearing shall not be held until notice of same has been given to the Contractor by registered or certified mail addressed to the Contractor at the address set forth herein, and a period of at least ten (10) days has elapsed since the receipt of such notice by Contractor. The notice shall specify the time and place of the hearing and shall include the specific reasons in support of the City's claim that the Contractor has substantially breached the terms and provisions of this Contract. The hearing shall be conducted in public by the City Council of the City and the Contractor shall be allowed to be present and shall be given full oportunity to answer such claims as are set out against it in the aforesaid notice. If, after said public hearing, the City Council makes a finding that Contractor has failed to provide adequate Refuse collection service for the City, the City Council may by two-thirds vote terminate this Contract. 20.00 NOTICES Any notice required or permitted to be delivered hereunder shall be in writing and shall be deemed to be delivered when deposited in the United States mail, postage prepaid, certified mail, return receipt requested, addressed to the respective party of the address set forth below: if to the City, at: P.O. Box 428 Wiley, Texas 75098 Attn: City Secretary if to the Contractor, at: P.O. Drawer M East Cleveland Road Hutchins, Texas 75141 Attn: District Manager or such other addresses as the parties may hereafter specify by written notice delivered in accordance herewith. 21.00 APPROVAL This Contract shall not be considered fully executed nor binding on the City or the Contractor until the same shall have been executed by the Contractor, the Mayor and the City Secretary of the City. 22.00 AM ENDM ENT All provisions of this Contract shall be strictly complied with and conformed to by the Contractor, and no amendment to this Contract shall be made except upon the written consent of the parties. No amendment shall be construed to release either party from any obligation under this Contract except as specifically provided for in such amendment. -11- 23.00 FORCE MAJEURE Notwithstanding anything herein to the contrary, the Contractor shall not be liable for the failure to perform its duties if such failure is caused by a catastrophe, riot, war, governmental order or regulation, strike, fire, accident, Act of God or other similar or different contingency beyond the reasonable control of the Contractor. 24.00 SEVERABILITY In the event that any provision or portion thereof of any Contract Document shall be found to be invalid or unenforceable, then such provision or portion thereof shall be performed in accordance with the applicable laws. The invalidity or unenforceability of any provision or portion of this Contract shall not affect the validity or enforceability of any other provision or portion of this Contract. 25.00 ENTIRE CONTRACT This Contract constitutes the entire understanding between the parties hereto and cancels and supersedes all prior negotiations, representations, understandings and agreements, either written or oral, with respect to the subject matter hereof. IN WITNESS WHEREOF, We, the contracting parties, by our duly authorized agent, hereto affix our signatures and seals at as of this day of , 1987. CITY OF WYLIE, TEXAS A Municipal Corporation of Collin County, Texas SEAL of the City of By Wylie, Texas Mayor and City Secretary MOORE INDUSTRIAL DISPOSAL, ATTEST: INCORPORATED and BROWNING-FERRIS, INC. By -12- e,