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