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Item 4CCITY OF MEMORANDUM SOUTHLAK (April 15, 2020) To: Shana K. Yelverton, City Manager From: Lauren LaNeave, Assistant to the City Manager Subject: Item 4C: Approve license agreement with Building Recovery Services, LLC for construction debris removal services. Action Requested: City Council consideration of Item 4C: Approve license agreement with Building Recovery Services, LLC for construction debris removal services. Background Information: Building Recovery Services, LLC. engaged the City to enter into a license agreement to allow for the hauling of construction debris in the City of Southlake. The company had been operating in Southlake and hauling their own waste from their development sites as their own crew, but wanted to be able to provide this service to other contractors and developers. The City of Southlake Solid Waste Ordinance requires a franchise or license agreement for all providers of solid waste services within the city limits. This non-exclusive agreement will allow Building Recovery Services permission to collect and dispose of construction debris generated by residential, commercial, industrial, and multi -family construction projects within Southlake. This is a temporary agreement that will expire December 31, 2020. The applicant will be required to reapply for the license annually. This license agreement may be terminated by either party, with or without cause, with thirty (30) days written notice provided to the other party. A copy of this agreement is provided in the Council packet. Due to ambiguity in the Solid Waste Ordinance regarding franchise agreements and license agreements, City staff is engaging TOASE to revise the Solid Waste Ordinance, establish a license agreement process, and appropriate license fee. The updated ordinance is expected to come forward to City Council in Fall 2020.Republic Services is requesting to increase the commercial front -load recycling dumpster rates so that those rates match those for commercial trash front -load dumpster collections. These requested changes are shown below. Financial Considerations: This agreement does not have a license fee for the first year. Staff and TOASE will identify an appropriate license fee to be effective FY 2021. Strategic Link: This contract links to the City's Strategy Map: "B2 Collaborate with select partners to implement service solutions." Citizen Input/ Board Review: N/A Legal Review: The license agreement was drafted and reviewed by the City Attorney. Alternatives: 1. Approve proposed agreement as presented 2. Approve proposed agreement with modifications. 3. Deny proposed agreement, and direct staff to continue negotiations with Building Recovery Services on an acceptable terms to bring forward at a later date. 4. Deny proposed agreement. Supporting Documents: 1. Proposed License Agreement 2. Letter from TOASE to applicant Staff Recommendation: Staff recommends approval of Item 4C: Approve license agreement with Building Recovery Services, LLC for construction debris removal services. Staff Contact: Lauren LaNeave, Assistant to the City Manager LICENSE FOR COLLECTION OF CONSTRUCTION DEBRIS THE STATE OF TEXAS KNOW ALL MEN BY THESE PRESENTS: COUNTY OF TARRANT The CITY OF SOUTHLAKE, a municipal corporation located in Tarrant County, Texas, hereafter called "City", acting by and through its duly authorized City Manager, and BUILDER RECOVER SERVICES LLC, a Texas limited liability company, acting by and through its duly authorized officer, hereinafter called "Licensee", do hereby covenant and agree as follows: I. License City hereby grants to Licensee a non-exclusive License and license to engage in the business of collecting and disposing of Construction Debris located within the corporate limits of the City which is generated by residential, commercial, industrial, and multi -family construction projects. City also hereby grants to Licensee a license to use the public streets, alleys, easements and thoroughfares within the limits of the City for the purpose of collection, disposal and processing of Construction Debris for a period of one year beginning January 1, 2020 and terminating December 31, 2020. This License is required to be re applied for annually. II. Definitions Wherever used herein, the hereinafter listed terms shall have the following meanings: (a) License: This License is made and entered into by the City and a Licensee for the business of collecting and disposing of Construction Debris located within the corporate limits of the City which is generated by residential, commercial, industrial, and multi -family construction projects. (b) City: The City of Southlake. (c) Construction Debris: Waste building materials resulting from construction, remodeling, repair, or demolition operations. (d) Licensee: Builder Recover Services LLC (e) Customer: Owner/Builder operating a site for commercial or residential construction. (f) Hazardous Waste: Solid wastes regulated as hazardous under the Resource Conservation and Recovery Act, 42, U.S.C.A., Section 1002, et seq., or regulated as toxic under the Toxic Substance Control Act, 15 U.S.C.A., Section 2601, et seq., and regulations promulgated hereunder or other applicable Federal or State Law concerning the regulation of hazardous or toxic wastes. (g) Premises: All public and private establishments, including individual residences, all multi -family dwellings, residential care facilities, hospitals, schools, businesses, other buildings, and all vacant lots. (h) Special Waste: Any waste defined as Special Waste by 30 TAC § 330.3(148). (i) Solid Waste: All non -hazardous and non -special (see Special Waste definition) solid waste material, including unwanted or discarded waste material in a solid or semi -solid waste, including, but not limited to: garbage, trash, ashes, rubbish, yard waste (including brush, tree trimmings, Christmas trees), discarded appliances, and home furniture and furnishings, provided that such material must be of the type and consistency to be lawfully accepted at the Landfill under the applicable Federal, State, and Local Laws; Regulations; and Permits governing each. Q) Trash: All Solid Waste (as defined in the Municipal Solid Waste Management Regulations of the Texas Department of Health) other than Garbage, Debris and Brush. III. Fees (a) License Fee: For and in consideration of the City granting Licensee a franchise within the City limits for the business of collecting and disposing of Construction Debris located within the corporate limits of the City which is generated by residential, commercial, industrial, and multi -family construction projects, Licensee hereby agrees to pay the City an annual License Fee as required by Section 16-35(c) of the Southlake City Code. (b) Modification of License Fee: The License Fee is prescribed by resolution adopted by the City Council and may be altered from time to time. Licensee shall only pay the annual License Fee at the time this License is made. Any change to the License Fee will be imposed should the Licensee re -apply after this License has expired. V. Licensee's General Duties and Obligations (a) Damage caused by Licensee's collection equipment such as spillage and broken curbs or sidewalks shall promptly be repaired or replaced at the Licensee's expense. Licensee shall not weave from curb to curb, drive in the middle of the road, or apply severe braking during routes through residential streets to prevent damage to infrastructure and for safety reasons. Licensee will train drivers to protect Southlake streets and not make sudden braking stops that will damage street surfaces. (b) All motor vehicles used in performance of the Licensee operations permitted herein shall be listed with the City and clearly marked as to allow the City to identify such vehicles. Licensee shall provide the list of vehicles to the City and Licensee will be responsible for updating such list it as necessary. (c) Licensee will dispose of in a legal manner, all Construction Debris, and other waste materials collected. (d) Throughout the term of this License, Licensee shall establish and maintain an authorized Managing Agent and shall designate, in writing, to the City Manager the name, telephone number, and address of such agent upon whom all notices shall be served by the City and to whom complaints received from citizens of the City may be directed. VII. Spillage (a) Licensee shall not be responsible for scattered waste unless the same has been caused by its acts or those of any of its employees, in which case, all scattered waste shall be cleaned up immediately by the Licensee. The Licensee shall, if necessary, hand clean all spillage resulting from its collection activities. In the event of spillage of hydraulic fluid, engine oil, fuel, or other liquids that spill from the collection truck which may require power washing ("truck fluids") on City infrastructure or private property, Licensee agrees to power -wash the pavement or concrete to attempt to remove spillage within twenty-four (24) hours of notification of said spillage. In the event of spillage on private property, Licensee shall remove said waste within twenty-four (24) hours of notification to Licensee. (b) Licensee will not be required to clean up or collect loose waste and/or spillage not created by its operations, but shall report the location of such conditions to the City so that proper notice can be given to the customer at such premises to properly contain such waste. Vill. Non -Collection and Complaints (a) The City shall notify Licensee of each complaint reported to the City in order for Licensee to take whatever reasonable steps are necessary to remedy the cause of the complaint. Licensee shall notify the City of its disposition in the monthly report described in the preceding paragraph. (b) Licensee shall provide the City with a full explanation of the disposition of any complaint involving a customer's claim of damage to private property as the result of actions of Licensee's employees, agents and subcontractors. IX. Licensee's Relation to City Inspection of Performance: The City Manager may inspect Licensee's operations, equipment and performance at any reasonable time and Licensee shall furnish the City Manager with every reasonable opportunity to inspect Licensee's operations or equipment or for otherwise ascertaining whether or not the work is being performed in accordance with the requirements of this License. X. Indemnification Indemnification: Licensee covenants and agrees to fully indemnify, hold harmless and defend the City, its officers, agents, servants and employees from and against any and all claims, demands, suits, judgments, costs and expenses (including attorney's fees) for property damage or loss, and/or personal injury, including death, to any and all persons, of whatsoever kind or character, whether real or asserted, arising out of or in connection with the performance, attempted performance or non-performance of the work and services described hereunder including operations of subcontractors, if any, and the acts or omissions of employees or agents of Licensee, or in any way resulting from or arising out of the collection, transportation or disposal of Solid Waste under this License, save and except for the loss or injury due to City's negligence or willful acts or omissions without, however, waiving any governmental immunity available to City under Texas law and without waiving any defense of City or Licensee under Texas Law. The insurance coverage specified below constitutes the minimum requirements and said requirements shall in no way lessen or limit the liability or responsibility of Licensee under the terms of this License. XI. Insurance The Licensee shall obtain and maintain in full force and effect for the duration of this License, at the Licensee's sole expense, insurance coverage in the following types and amounts: Any of the insurance coverage required herein may in part, or in whole, come from self -funded, ERISA, or self-insurance plans: TYPE AMOUNT (a) Commercial General (Public) Combined single limit for bodily injury and Liability insurance including property damage in the amount of coverage for the following: $1,000,000 per occurrence or its a. Premises Operations equivalent. b. Independent Licensees c. Products/Completed Operations d. Personal Injury e. Advertising Injury f. Contractual Liability TYPE AMOUNT (b) Comprehensive Automobile Combined single limit for bodily injury and insurance, including coverage for property damage in the amount of loading and unloading hazards, $1,000,000 per accident or its equivalent. for: a. Owned/Leased Vehicles b. Non -owned Vehicles c. Hired Vehicles (c) Certificates of Insurance: Upon execution of this License, Licensee agrees to provide certificates of insurance evidencing that Licensee has obtained insurance of the type and in the amount required herein. Licensee further agrees to provide thirty (30) days' notice to the City for cancellation, non -renewal, or material change in coverage. In the event of such notice, Licensee agrees to promptly provide Certificates of Insurance evidencing that the Licensee has obtained insurance of the type and in the amount required herein. XII. Noncompliance In the event Licensee breach any of the material provisions (a "Material Breach) of this License, City shall promptly notify Licensee of its noncompliance, stating with particularity the facts relating thereto. Thereafter, if the Material Breach is not corrected or if agreed upon steps are not taken to improve and/or otherwise comply with the terms of this License within a period of time which is reasonable in relation to the nature of the event of noncompliance but in no case more than ten (10) days (hereafter the "Licensee Cure Period") the Material Brach shall constitute an act of noncompliance. XIII. Termination Either party may terminate this License, with or without cause, with thirty (30) days written notice provided to the other party. It XIV. Miscellaneous (a) Compliance with laws. Licensee hereby agrees to comply with all applicable federal, state, and local laws including the Fair Labor Standards Act, and rules, regulations orders and decrees of the Texas Department of Health, the Texas Natural Resource Conservation Commission, and the United States Environmental Protection Agency or their successors. Licensee shall indemnify and hold harmless the City, its officers, representatives, agents, and employees against any claim or liability arising from or based on the violation of any such laws, regulations, ordinances, orders, or decrees, whether such violation was by Licensee, its agents or employees, or any subcontractor or assignee. Licensee shall not be required to collect or dispose of any oil, sludge, fecal material or any radioactive, pathological, toxic, acidic or volatile material, or other hazardous waste or improper waste from any commercial or residential customer. Should Licensee elect to dispose of such materials, Licensee shall receive a fee or charge mutually acceptable to Licensee and to the party requesting disposal of such materials. Should Licensee elect to dispose of such materials, Licensee shall take such steps and precautions as are required by the applicable laws governing disposal of such material and shall indemnify the City from any liability arising from such disposal. Licensee shall at all times observe all City ordinances controlling or limiting those engaged in performing work under this License; provided, however, that nothing contained in any ordinance now in effect or hereafter adopted pertaining to the collection of Construction Debris or other trash shall in any way be construed to affect, change or modify or otherwise alter the duties, responsibilities and operation of Licensee in the performance of the terms of this License. It is the intention hereof that Licensee be required to perform the terms of this License regardless of the effect of interpretation of any municipal ordinance which in any way relates to Construction Debris or other trash. (b) Multiple Originals: This License is executed in multiple originals, each of which shall be deemed for all purposes to be an original, and all of which are identical. (c) Paragraph Headings: The paragraph headings contained herein are for convenience in reference and are not intended to define or limit the scope of any provision of this License. (e) Notices: Notices by either party to the other party shall be sufficient if sent by certified mail, postage paid, return receipt required, addressed to the other party at the addresses designated below each party's signature hereunder. (f) Venue and Choice of Law: The parties acknowledge that this License is fully performable in Tarrant and Denton Counties. Should any action, whether real or asserted, at law or in equity, arise out of terms and conditions of this License, venue for said action shall be in Tarrant County, Texas and this License shall be construed under the substantive laws of the State of Texas excluding its choice of law provisions. (g) Governmental Powers: It is understood and agreed that by execution of this License, the City does not waive or surrender any of its governmental powers. (h) Taxes: Licensee shall pay all federal, state and local taxes including sales tax, social security, worker's compensation, unemployment insurance and any and all other required taxes which may be chargeable against Licensee for its labor, material, equipment, real estate and any other items necessary to and in performance of this License. (i) Licenses, Permits, and Fees: Licensee agrees to obtain and pay for all licenses, permits, certificates, inspections and all other fees required by law or otherwise necessary to perform the services prescribed hereunder. Licensee shall also pay, at Licensee's own expense, all disposal fees associated with the collection, removal and disposal of Construction Debris. 0) Sovereign Immunity: Nothing contained within this License shall be deemed a waiver of City's sovereign immunity. (k) Construction: The parties acknowledge that they are each represented by counsel and have had sufficient opportunity to review this License. Therefore, the parties agree that nothing in this License will be construed against the drafter. (o) Change in Law: If, after the date of this License, additional regulations by a governmental entity or agency result in extra costs to Licensee in providing the services required herein, the Licensee may be entitled to recover those costs during the term of this License in accordance with Section V(b) herein. (p) Force Majeure: The Licensee shall not be liable for the failure to perform, in whole or in part, the Licensee's duties if such failure is caused by catastrophe, riot, war, governmental order or regulation, fire, accident, or other act of God. (q) Severability: In the event that any provision or portion of any License document shall be found to be invalid or unenforceable, then such provision or portion thereof shall be reformed in accordance with the applicable laws. IN WITNESS HEREOF, the parties, by our duly authorized agents, hereby affix our signatures and seals on this day of , 2020. City of Southlake, Texas Builder Recover Services LLC 1400 Main Street P.O. Box 93984 Suite 460 Southlake, Texas 760925 Southlake, Texas 76092 By:_ Name: Title: ATTEST City Secretary APPROVED AS TO FORM City Attorney By: Name: Title: VERIFICATION STATE OF TEXAS COUNTY OF BEFORE ME, the undersigned Notary Public, on this day personally who being by me duly sworn upon his oath deposed and said that he is the of ; that he is authorized to make this affidavit on behalf of ; that he has read the above and foregoing License, and that every material statement contained herein is true and correct, to the best of his knowledge and belief. SUBSCRIBED AND SWORN TO BEFORE ME this day of , 2019. NOTARY PUBLIC, in and for the State of Texas T(FASE 116300 -30 B Y�TIR�ROAD 240 TAYLOR•OLSON•ADKINS•SRALLA•ELAM FORT WORTH, TEXAS 76107 �a r EMAIL:TOASE@TOASE.COM ATTORNEYS & COUNSELORS James Donovan jdowml a com March 2, 2020 via email Arthur J. Anderson aanderson.6 ?wlnstead.com Winstead PC 500 Winstead Building 2728 N. Harwood Street Dallas, Texas 75201 TELEPHONE: (817) 332-2580 TOLL FREE: (800) 318-3400 FACSIMILE: (817) 3324740 WEBSITE: WWW.TOASE.COM Re: City ofSouthlake soil waste collection license for Builder Recover Services LLC Mr. Anderson, I have revised the license agreement with your comments for your January 241' email. Please review and let me know if you have any further suggestions. I did want to mention a few additional items pertaining to the license. First, in revising the agreement, I made more specific deletions than your email suggested as I felt some terms fit more in a franchise agreement than a license. Second, the current agreement outlines the payment of any annual license fee, as is required by the Southlake ordinance. However, it seems through our research that the annual fee for this particular type of license was adopted, and then repealed, and never adopted again. As it currently stands, Southlake does not have a license fee in place. Therefore, the first year of this license will be without charge. The City staff plans to add such a fee to the City's fee schedule and should your client desire a license for next year, most likely a fee will be owed. Third, in that this is a license, your client will not be deemed the "City's Contractor" for construction debris removal should the City be contacted for such services. Should the City be contacted, Staff will direct such requests to their current franchise holder. Finally, as Staff and I have moved through this process, we have determined that there will be an effort at least to amend the ordinances that cover this type of activity, in order to clarify the application process, responsibilities of licensees and franchisees, and other matters. I point this out as the agreement is now a one-year agreement, and next year the process and agreement will more than likely be different. I wanted you and client to be aware of that as to not be caught off guard should he request another license in the future. Please feel free to contact me with any questions. I do appreciate you and your client's patience in this matter. March 2, 2020 Page 2 S' rely, James Donovan JD j kb Enclosures cc: Alison Ortowski aortowski ci.southlake.tx.us Lauren LaNeave l laneave(a-,ci.southlake.tx. us Allen Taylor, Firm Debbie Swath, Firm Deb Pointer, Firm W:15outhlakelAgreements\Waste Collwion\Anderson email letter Garabedian.doex