R-09-12-17-8H2 - 12/17/2009RESOLUTION NO. R -09-12-17-8H2
WHEREAS, the City of Round Rock desires to retain professional
services for household hazardous waste collection and disposal, and
WHEREAS, Envirosolve has submitted an Agreement for Household
Hazardous Waste Collection Activities/Waste Disposal Service, and
WHEREAS, the City Council desires to enter into said Agreement
and with Envirosolve, Now Therefore
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK,
TEXAS,
That the Mayor is hereby authorized and directed to execute on
behalf of the City an Agreement for Household Hazardous Waste
Collection Activities/Waste Disposal Service with Envirosolve, a
copy of same being attached hereto as Exhibit "A" and incorporated
herein for all purposes.
The City Council hereby finds and declares that written notice
of the date, hour, place and subject of the meeting at which this
Resolution was adopted was posted and that such meeting was open to
the public as required by law at all times during which this
Resolution and the subject matter hereof were discussed, considered
and formally acted upon, all as required by the Open Meetings Act,
Chapter 551, Texas Government Code, as amended.
RESOLVED this 17th day of December, 2009.
)-1,t4
ALAN MCGRAW, Mayor
City of Round Rock, Texas
ATTEST:
(Abikt
SARA L. WHITE, City Secretary
0:\wdox\SCC1nts\0112\0905\MUNICIPAL\R91217H2.DOC/rmc
CITY OF ROUND ROCK
AGREEMENT FOR HOUSEHOLD HAZARDOUS WASTE COLLECTION
ACTIVITIES/WASTE DISPOSAL SERVICE WITH ENVIROSOLVE
THE STATE OF TEXAS
CITY OF ROUND ROCK
COUNTY OF WILLIAMSON
KNOW ALL BY THESE PRESENTS:
EXHIBIT
nAn
That this Agreement for services for Household Hazardous Waste Collection
Activities/Waste Disposal Service (referred to herein as the "Agreement") is made and entered
into on this the day of the month of , 2009, by and between the CITY OF
ROUND ROCK, TEXAS, a home -rule municipality whose offices are located at 221 East Main
Street, Round Rock, Texas 78664 (referred to herein as the "City"), and Envirosolve, whose
offices are located at 2120 Southwest Boulevard, Tulsa, Oklahoma 74107 (referred to herein as
the "Vendor"). This Agreement supersedes and replaces any previous agreement between the
named parties, whether oral or written, and whether or not established by custom and practice.
RECITALS:
WHEREAS, City desires to have Vendor provide services related to Household
Hazardous Waste Collection Activities and Waste Disposal; and
WHEREAS, City has issued its "Request for Quotations" for City to provide said goods,
and City has selected the Quote submitted by Vendor; and
WHEREAS, the parties desire to enter into this Agreement to set forth in writing their
respective rights, duties, and obligations;
NOW, THEREFORE, WITNESSETH:
That for and in consideration of the mutual promises contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
mutually agree as follows:
1.01 DEFINITIONS
A. Agreement means the binding legal contract between City and Vendor setting
forth the terms and conditions for the performance of the services by Vendor for City. The
Agreement includes the following: (a) City's Request for Quotation designated as RFQ No. 09-
035, Specification Number 04-926-45-02 revised September 2009, attached hereto in binder
form and made a part hereof as Exhibit "A"; (b) Vendor's Response to RFQ, attached hereto in
binder form and made a part hereof as Exhibit "A"; (c) the contract award; and (d) any exhibits,
addenda, and/or amendments thereto. Any inconsistencies or conflicts in the contract documents
shall be resolved by giving preference in the following order:
00176207/jkg/m]
(3)
This Agreement;
Vendor's Response to RFQ;
City's Request for Quotation, exhibits, and attachments.
B. City means the City of Round Rock, Williamson and Travis Counties, Texas.
C. Force Majeure means acts of God, strikes, lockouts, or other industrial
disturbances, acts of the public enemy, orders of any kind from the government of the United
States or the State of Texas or any civil or military authority, insurrections, riots, epidemics,
landslides, lightning, earthquakes, fires, hurricanes, storms, floods, restraint of the government
and the people, civil disturbances, explosions, or other causes not reasonably within the control
of the party claiming such inability.
D. Services mean the service identified in the RFQ, and any and all materials,
equipment and labor required to perform such service.
F. Vendor means Envirosolve, or any successors, assigns, subsidiaries or affiliates.
2.01 EFFECTIVE DATE, DURATION, AND TERM
A. This Agreement shall be effective on the date it has been signed by both parties
hereto and approved by the City Council, and shall remain in full force and effect unless and
until it expires by operation of the term stated herein, or until terminated or extended as provided
herein.
B. The term of this Agreement shall be for five (5) consecutive twelve-month
periods from the effective date hereof. After that term, this Agreement may be renewed for
successive terms of twelve (12) months each, not to exceed in the aggregate two (2) such
renewals, with such renewals to occur on or before the expiration date of the preceding term, and
with such renewals being absolutely predicated upon the express written agreement of both
parties. Such renewals are permitted only provided Vendor has performed each and every
contractual obligation specified in this original Agreement.
C. Prices shall be firm for the duration of this Agreement and for any renewal
periods. No separate line item charges shall be permitted for invoicing purposes, including but
not limited to equipment rental, demurrage, costs associated with obtaining permits, or any other
extraneous charges. City may permit "unit price" adjustments upwards only as a result of a cost
increase in goods or services in accordance with the Producers Price Index located at
http://stats.b1s.gov/ppi/home.htrn. Any price increase shall be requested by Vendor in writing
and accompanied by the appropriate documentation to justify the requested increase. Vendor
may offer price decreases in excess of the allowable percentage change.
D. City reserves the right to review the Vendor's performance at any time, and may
elect to terminate this Agreement with or without cause or may elect to continue.
2
3.01 TRANSFER OF WASTE AND TITLE
Vendor shall inspect, and where desired, sample, the waste collected from City and
prepare an inventory form that indicates the contents of each container of waste. Vendor shall be
considered the Legal Generator of all waste removed from any site in the City pursuant to this
Agreement. Vendor to prepare the Generator's Waste Material Profile Sheet and any required
manifests. Vendor shall sign as Generator and shall not delegate this responsibility to any
subcontractor. Any storage, transportation or disposal of waste undertaken pursuant to this
Agreement shall comply with all applicable local, state or federal regulations and laws. No
transporter or disposal facility shall be utilized if said transporter or facility is not in compliance
with any permit, rule or regulation of the EPA, U.S. Department of Transportation, the Texas
Railroad Commission, the Texas Commission on Environmental Quality or any other regulatory
authority or agency. All wastes collected, transported and disposed of shall be in accordance
with the terms and schedules set forth in Exhibit "A".
4.01 ITEMS AWARDED
All items on Exhibit "A" are awarded to Vendor. All quantities on Exhibit "A" are
estimates only and no guarantee of a minimum or maximum purchase is made or implied.
5.01 COSTS
Quote costs listed on Exhibit "A" shall be the basis of any charges collected by Vendor.
Costs shall be firm for the duration of this Agreement and any optional extension periods.
6.01 INVOICES
All invoices shall include, at a minimum, the following information:
A. Name and address of Vendor;
13. Purchase Order Number;
C. Description and quantity of items received; and
D. Delivery dates.
7.01 INTERLOCAL COOPERATIVE CONTRACTING / PURCHASING
Authority for Local governments to contract with one another to perform certain
governmental functions and services, including but not limited to purchasing functions, is
granted under Government Code, Title 7, Chapter 791, Interlocal Cooperation Contracts,
Subchapter B and Subchapter C, and Local Government Code, Title 8, Chapter 271, Subchapter
F, Section 271.101 and Section 271.102.
Other governmental entities within the State of Texas may be extended the opportunity to
purchase off of the City of Round Rock's bid, with the consent and agreement of the successful
3
vendor(s) and Round Rock. Such agreement shall be conclusively inferred for the vendor from
lack of exception to this clause in the vendor's response. However, all parties hereby expressly
agree that the City of Round Rock is not an agent of, partner to, or representative of those outside
agencies or entities and that the City of Round Rock is not obligated or liable for any action or
debts that may arise out of such independently -negotiated "piggyback" procurements.
8.01 NON -APPROPRIATION AND FISCAL FUNDING
This Agreement is a commitment of City's current revenues only. It is understood and
agreed that City shall have the right to terminate this Agreement at the end of any City fiscal year
if the governing body of City does not appropriate funds sufficient to purchase the services as
determined by City's budget for the fiscal year in question. City may effect such termination by
giving Vendor a written notice of termination at the end of its then current fiscal year.
9.01 PROMPT PAYMENT POLICY
In accordance with Chapter 2251, V.T.C.A., Texas Government Code, any payment to be
made by City to Vendor will be made within thirty (30) days of the date City receives goods
under this Agreement, the date the performance of the services under this Agreement are
completed, or the date City receives a correct invoice for the goods or services, whichever is
later. Vendor may charge interest on an overdue payment at the "rate in effect" on September I
of the fiscal year in which the payment becomes overdue, in accordance with V.T.C.A., Texas
Government Code, Section 2251.025(b). This Prompt Payment Policy does not apply to
payments made by City in the event:
A. There is a bona fide dispute between City and Vendor, a contractor,
subcontractor, or supplier about the goods delivered or the service performed that
causes the payment to be late; or
B. There is a bona fide dispute between Vendor and a subcontractor or between a
subcontractor and its supplier about the goods delivered or the service performed
that causes the payment to be late; or
C. The terms of a federal contract, grant, regulation, or statute prevent City from
making a timely payment with federal funds; or
D. The invoice is not mailed to City in strict accordance with any instruction on the
purchase order relating to the payment.
10.01 GRATUITIES AND BRIBES
City may, by written notice to Vendor, cancel this Agreement without incurring any
liability to Vendor if it is determined by City that gratuities or bribes in the form of
entertainment, gifts, or otherwise were offered or given by Vendor or its agents or
4
representatives to any City officer, employee or elected representative with respect to the
performance of this Agreement. In addition, Vendor may be subject to penalties stated in Title 8
of the Texas Penal Code.
11.01 TAXES
City is exempt from Federal Excise and State Sales Tax; therefore, tax shall not be
included in Vendor's charges.
12.01 ORDERS PLACED WITH ALTERNATE VENDORS
If Vendor cannot provide the Services as specified, City reserves the right and option to
obtain the products and services from another supplier or suppliers.
13.01 INSURANCE
Vendor shall meet all requirements as stated in the attached Request for Proposals
(including all attachments and exhibits), and its Response.
14.01 CITY'S REPRESENTATIVE
City hereby designates the following representative authorized to act in its behalf with
regard to this Agreement:
Tracy Herring
City of Round Rock, Environmental Services Division
2008 Enterprise Drive
Round Rock, Texas 78664
Telephone: 512-218-5559
Facsimile: 512-341-3316
15.01 RIGHT TO ASSURANCE
Whenever either party to this Agreement, in good faith, has reason to question the other
party's intent to perform hereunder, then demand may be made to the other party for written
assurance of the intent to perform. In the event that no written assurance is given within the
reasonable time specified when demand is made, then and in that event the demanding party may
treat such failure as an anticipatory repudiation of this Agreement.
16.01 DEFAULT
If Vendor abandons or defaults under this Agreement and is a cause of City purchasing
the specified goods and services elsewhere, Vendor agrees that it may be charged the difference
in cost, if any, and that it will not be considered in the re -advertisement of the service and that it
5
may not be considered in future bids for the same type of work unless the scope of work is
significantly changed.
Vendor shall be declared in default of this Agreement if it does any of the following:
A. Fails to fully, timely and faithfully perform any of its material obligations
under this Agreement;
B. Fails to provide adequate assurance of performance under the "Right to
Assurance" section herein; or
C. Becomes insolvent or seeks relief under the bankruptcy laws of the United
States.
17.01 TERMINATION AND SUSPENSION
A. Either party has the right to terminate this Agreement, in whole or in part, for
convenience and without cause, at any time upon thirty (30) days' written notice to the other
party.
B. In the event of any default by Vendor, City has the right to terminate this
Agreement for cause, upon ten (10) days' written notice to Vendor.
C. Vendor has the right to terminate this Agreement only for cause, that being in the
event of a material and substantial breach by City, or by mutual agreement to terminate
evidenced in writing by and between the parties.
D. In the event City terminates under subsections (A) or (B) of this section, the
following shall apply: Upon City's delivery of the referenced notice to Vendor, Vendor shall
discontinue all Services in connection with the performance of this Agreement and shall proceed
to cancel promptly all existing orders and contracts insofar as such orders and contracts are
chargeable to this Agreement. Within thirty (30) days after such notice of termination, Vendor
shall submit a statement showing in detail the Services satisfactorily performed under this
Agreement to the date of termination. City shall then pay Vendor that portion of the charges, if
undisputed. The parties agree that Vendor is not entitled to compensation for Services it would
have performed under the remaining term of the Agreement except as provided herein.
18.01 INDEMNIFICATION
Vendor shall defend (at the option of City), indemnify, and hold City, its successors,
assigns, officers, employees and elected officials harmless from and against all suits, actions,
legal proceedings, claims, demands, damages, costs, expenses, attorney's fees, and any and all
other costs or fees arising out of, or incident to, concerning or resulting from the negligent or
willful acts or omissions of Vendor, or Vendor's agents, employees or subcontractors, in the
performance of Vendor's obligations under this Agreement, no matter how, or to whom, such
loss may occur. Nothing herein shall be deemed to limit the rights of City or Vendor (including,
but not limited to the right to seek contribution) against any third party who may be liable for an
indemnified claim.
19.01 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES
Vendor, its agents, employees and subcontractors shall use best efforts to comply with all
applicable federal and state laws, the Charter and Ordinances of the City of Round Rock, as
amended, and with all applicable rules and regulations promulgated by local, state and national
boards, bureaus and agencies.
20.01 ASSIGNMENT AND DELEGATION
The parties each hereby bind themselves, their successors, assigns and legal
representatives to each other with respect to the terms of this Agreement. Neither party shall
assign, sublet or transfer any interest in this Agreement without prior written authorization of the
other party.
21.01 NOTICES
All notices and other communications in connection with this Agreement shall be in
writing and shall be considered given as follows:
1. When delivered personally to the recipient's address as stated in this Agreement;
or
2. Three (3) days after being deposited in the United States mail, with postage
prepaid to the recipient's address as stated in this Agreement.
Notice to Vendor:
Envirosolve
2120 Southwest Boulevard
Tulsa, OK 74107,
_........ _. _.
Notice to City:
James Nuse, City Manager
221 East Main Street
Round Rock, TX 78664
Stephan L. Sheets, City Attorney
AND TO: 309 East Main Street
Round Rock, TX 78664
Nothing contained herein shall be construed to restrict the transmission of routine
communications between representatives of City and Vendor.
22.01 APPLICABLE LAW; ENFORCEMENT AND VENUE
{ Deleted: 1
This Agreement shall be enforceable in Round Rock, Texas, and if legal action is
necessary by either party with respect to the enforcement of any or all of the terms or conditions
herein, exclusive venue for same shall lie in Williamson County, Texas. This Agreement shall be
governed by and construed in accordance with the laws and court decisions of the State of Texas.
23.01 EXCLUSIVE AGREEMENT
This document, and all appended documents, constitutes the entire Agreement between
Vendor and City. This Agreement may only be amended or supplemented by mutual agreement
of the parties hereto in writing, duly authorized by action of the City Manager or City Council.
24.01 DISPUTE RESOLUTION
If a dispute or claim arises under this Agreement, the parties agree to first try to resolve
the dispute or claim by appropriate internal means, including referral to each party's senior
management. If the parties cannot reach a mutually satisfactory resolution, then and in that event
any such dispute or claim will be sought to be resolved with the help of a mutually selected
mediator. If the parties cannot agree on a mediator, City and Vendor shall each select a mediator
and the two mediators shall agree upon a third mediator. Any costs and fees, other than attorney
fees, associated with the mediation shall be shared equally by the parties.
City and Vendor hereby expressly agree that no claims or disputes between the parties
arising out of or relating to this Agreement or a breach thereof shall be decided by any arbitration
proceeding, including without limitation, any proceeding under the Federal Arbitration Act (9
USC Section 1-14) or any applicable state arbitration statute.
25.01 SEVERABILITY
The invalidity, illegality, or unenforceability of any provision of this Agreement or the
occurrence of any event rendering any portion or provision of this Agreement void shall in no
way affect the validity or enforceability of any other portion or provision of this Agreement. Any
void provision shall be deemed severed from this Agreement, and the balance of this Agreement
shall be construed and enforced as if this Agreement did not contain the particular portion or
provision held to be void. The parties further agree to amend this Agreement to replace any
stricken provision with a valid provision that comes as close as possible to the intent of the
stricken provision. The provisions of this section shall not prevent this entire Agreement from
being void should a provision which is of the essence of this Agreement be determined to be
void.
26.01 MISCELLANEOUS PROVISIONS
Standard of Care. Vendor represents that it employs trained, experienced and
competent persons to perform all of the Services, responsibilities and duties specified herein and
that such Services, responsibilities and duties shall be performed in a manner according to
generally accepted industry practices.
Time is of the Essence. Vendor understands and agrees that time is of the essence and
that any failure of Vendor to fulfill obligations for each portion of this Agreement within the
agreed timeframes will constitute a material breach of this Agreement. Vendor shall be fully
responsible for its delays or for failures to use best efforts in accordance with the terms of this
Agreement. Where damage is caused to City due to Vendor's failure to perform in these
circumstances, City may pursue any remedy available without waiver of any of City's additional
legal rights or remedies.
Force Majeure. Neither City nor Vendor shall be deemed in violation of this Agreement
if it is prevented from performing any of its obligations hereunder by reasons for which it is not
responsible as defined herein. However, notice of such impediment or delay in performance must
be timely given, and all reasonable efforts undertaken to mitigate its effects.
Multiple Counterparts. This Agreement may be executed in multiple counterparts, any
one of which shall be considered an original of this document; and all of which, when taken
together, shall constitute one and the same instrument.
IN WITNESS WHEREOF, City and Vendor have executed this Agreement on the dates
indicated.
CITY OF ROUND ROCK, TEXAS
By:
Printed Name:
Title:
Date Signed:
ATTEST:
Sara L. White, City Secretary
FOR CITY, APPROVED AS TO FORM:
Stephan L. Sheets, City Attorney
ENVIROSOLVE
By:
Printed Name: ,5,,1etAy
Title:Drvrs:,/ a Alciver
Date Signed: er.
Aeovem.6er 1/, 200?
DATE: December 8, 2009
SUBJECT: City Council Meeting — December 17, 2009
ITEM: 8H2. Consider a resolution authorizing the Mayor to execute the agreement for
Household Hazardous Waste Collection Activities/Waste Disposal Service with
Envirosolve, Inc.
Department: Water and Wastewater Utilities
Staff Person: Michael Thane, P.E., Director of Utilities
Justification:
This agreement will provide City staff with packaging, segregating and identification training of
Household Hazardous Waste (HHW). The contractor will assume generator status and will provide
ultimate disposal of materials collected through the City's HHW Collection Program. The training
provided will allow for more efficient waste management in order to reduce the amount of waste to be
disposed of and obtain more options for recycling of the waste.
This program is necessary for the proper and safe disposal of household wastes such as paints, thinners,
pesticides, cleaners, fertilizers, herbicides, solvents, acids and a variety of other chemicals. Without
proper disposal options, these types of material are either thrown in the trash or poured down the
drain, all of which can affect our waterways and water supply. The cost of this agreement is $11,594.16
each year for five years with the option to renew for an additional two years.
Strategic Plan Relevance:
Public Health and Safety Strategic Initiative
Goal 27 — "Ensure there is an adequate, affordable and safe water supply"
Goal 28 — "Protect public health and protect the environment through proper waste disposal"
Funding:
Cost:
Source of funds:
Outside Resources:
Public Comment:
$81,159.12
Utility Fund
Envirosolve, Inc.
N/A
EXECUTED
DOCUMENT
FOLLOWS
CITY OF ROUND ROCK
AGREEMENT FOR HOUSEHOLD HAZARDOUS WASTE COLLECTION
ACTIVITIES/WASTE DISPOSAL SERVICE WITH ENVIROSOLVE
THE STATE OF TEXAS
CITY OF ROUND ROCK
COUNTY OF WILLIAMSON
KNOW ALL BY THESE PRESENTS:
That this Agreement for services for Household Hazardous Waste Collection
Activities/Waste Disposal Service (referred to herein as the "Agreement") is made and entered
into on this the t'41- day of the month of 1)10.441.J2 -r, 2009, by and between the CITY OF
ROUND ROCK, TEXAS, a home -rule municipality whose offices are located at 221 East Main
Street, Round Rock, Texas 78664 (referred to herein as the "City"), and Envirosolve, whose
offices are located at 2120 Southwest Boulevard, Tulsa, Oklahoma 74107 (referred to herein as
the "Vendor"). This Agreement supersedes and replaces any previous agreement between the
named parties, whether oral or written, and whether or not established by custom and practice.
RECITALS:
WHEREAS, City desires to have Vendor provide services related to Household
Hazardous Waste Collection Activities and Waste Disposal; and
WHEREAS, City has issued its "Request for Quotations" for City to provide said goods,
and City has selected the Quote submitted by Vendor; and
WHEREAS, the parties desire to enter into this Agreement to set forth in writing their
respective rights, duties, and obligations;
NOW, THEREFORE, WITNESSETH:
That for and in consideration of the mutual promises contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
mutually agree as follows:
1.01 DEFINITIONS
A. Agreement means the binding legal contract between City and Vendor setting
forth the terms and conditions for the performance of the services by Vendor for City. The
Agreement includes the following: (a) City's Request for Quotation designated as RFQ No. 09-
035, Specification Number 04-926-45-02 revised September 2009, attached hereto in binder
form and made a part hereof as Exhibit "A"; (b) Vendor's Response to RFQ, attached hereto in
binder form and made a part hereof as Exhibit "A"; (c) the contract award; and (d) any exhibits,
addenda, and/or amendments thereto. Any inconsistencies or conflicts in the contract documents
shall be resolved by giving preference in the following order:
00176207/jkg/ml
IL- 171 -rte« 431V 2--
-
(1) This Agreement;
(2) Vendor's Response to RFQ;
(3) City's Request for Quotation, exhibits, and attachments.
B. City means the City of Round Rock, Williamson and Travis Counties, Texas.
C. Force Majeure means acts of God, strikes, lockouts, or other industrial
disturbances, acts of the public enemy, orders of any kind from the government of the United
States or the State of Texas or any civil or military authority, insurrections, riots, epidemics,
landslides, lightning, earthquakes, fires, hurricanes, storms, floods, restraint of the government
and the people, civil disturbances, explosions, or other causes not reasonably within the control
of the party claiming such inability.
D. Services mean the service identified in the RFQ, and any and all materials,
equipment and labor required to perform such service.
F. Vendor means Envirosolve, or any successors, assigns, subsidiaries or affiliates.
2.01 EFFECTIVE DATE, DURATION, AND TERM
A. This Agreement shall be effective on the date it has been signed by both parties
hereto and approved by the City Council, and shall remain in full force and effect unless and
until it expires by operation of the term stated herein, or until terminated or extended as provided
herein.
B. The term of this Agreement shall be for five (5) consecutive twelve-month
periods from the effective date hereof. After that term, this Agreement may be renewed for
successive terms of twelve (12) months each, not to exceed in the aggregate two (2) such
renewals, with such renewals to occur on or before the expiration date of the preceding term, and
with such renewals being absolutely predicated upon the express written agreement of both
parties. Such renewals are permitted only provided Vendor has performed each and every
contractual obligation specified in this original Agreement.
C. Prices shall be firm for the duration of this Agreement and for any renewal
periods. No separate line item charges shall be permitted for invoicing purposes, including but
not limited to equipment rental, demurrage, costs associated with obtaining permits, or any other
extraneous charges. City may permit "unit price" adjustments upwards only as a result of a cost
increase in goods or services in accordance with the Producers Price Index located at
http:!/stats.bls.gov!ppi/home.htm. Any price increase shall be requested by Vendor in writing
and accompanied by the appropriate documentation to justify the requested increase. Vendor
may offer price decreases in excess of the allowable percentage change.
D. City reserves the right to review the Vendor's performance at any time, and may
elect to terminate this Agreement with or without cause or may elect to continue.
2
3.01 TRANSFER OF WASTE AND TITLE
Vendor shall inspect, and where desired, sample, the waste collected from City and
prepare an inventory form that indicates the contents of each container of waste. Vendor shall be
considered the Legal Generator of all waste removed from any site in the City pursuant to this
Agreement. Vendor to prepare the Generator's Waste Material Profile Sheet and any required
manifests. Vendor shall sign as Generator and shall not delegate this responsibility to any
subcontractor. Any storage, transportation or disposal of waste undertaken pursuant to this
Agreement shall comply with all applicable local, state or federal regulations and laws. No
transporter or disposal facility shall be utilized if said transporter or facility is not in compliance
with any permit, rule or regulation of the EPA, U.S. Department of Transportation, the Texas
Railroad Commission, the Texas Commission on Environmental Quality or any other regulatory
authority or agency. All wastes collected, transported and disposed of shall be in accordance
with the terms and schedules set forth in Exhibit "A".
4.01 ITEMS AWARDED
All items on Exhibit "A" are awarded to Vendor. All quantities on Exhibit "A" are
estimates only and no guarantee of a minimum or maximum purchase is made or implied.
5.01 COSTS
Quote costs listed on Exhibit "A" shall be the basis of any charges collected by Vendor.
Costs shall be firm for the duration of this Agreement and any optional extension periods.
6.01 INVOICES
All invoices shall include, at a minimum, the following information:
A. Name and address of Vendor;
B. Purchase Order Number;
C. Description and quantity of items received; and
D. Delivery dates.
7.01 INTERLOCAL COOPERATIVE CONTRACTING / PURCHASING
Authority for local governments to contract with one another to perform certain
governmental functions and services, including but not limited to purchasing functions, is
granted under Government Code, Title 7, Chapter 791, Interlocal Cooperation Contracts,
Subchapter B and Subchapter C, and Local Government Code, Title 8, Chapter 271, Subchapter
F, Section 271.101 and Section 271.102.
Other governmental entities within the State of Texas may be extended the opportunity to
purchase off of the City of Round Rock's bid, with the consent and agreement of the successful
3
vendor(s) and Round Rock. Such agreement shall be conclusively inferred for the vendor from
lack of exception to this clause in the vendor's response. However, all parties hereby expressly
agree that the City of Round Rock is not an agent of, partner to, or representative of those outside
agencies or entities and that the City of Round Rock is not obligated or liable for any action or
debts that may arise out of such independently -negotiated "piggyback" procurements.
8.01 NON -APPROPRIATION AND FISCAL FUNDING
This Agreement is a commitment of City's current revenues only. It is understood and
agreed that City shall have the right to terminate this Agreement at the end of any City fiscal year
if the governing body of City does not appropriate funds sufficient to purchase the services as
determined by City's budget for the fiscal year in question. City may effect such termination by
giving Vendor a written notice of termination at the end of its then current fiscal year.
9.01 PROMPT PAYMENT POLICY
In accordance with Chapter 2251, V.T.C.A., Texas Government Code, any payment to be
made by City to Vendor will be made within thirty (30) days of the date City receives goods
under this Agreement, the date the performance of the services under this Agreement are
completed, or the date City receives a correct invoice for the goods or services, whichever is
later. Vendor may charge interest on an overdue payment at the "rate in effect" on September 1
of the fiscal year in which the payment becomes overdue, in accordance with V.T.C.A., Texas
Government Code, Section 2251.025(b). This Prompt Payment Policy does not apply to
payments made by City in the event:
A. There is a bona fide dispute between City and Vendor, a contractor,
subcontractor, or supplier about the goods delivered or the service performed that
causes the payment to be late; or
B. There is a bona fide dispute between Vendor and a subcontractor or between a
subcontractor and its supplier about the goods delivered or the service performed
that causes the payment to be late; or
C. The terms of a federal contract, grant, regulation, or statute prevent City from
making a timely payment with federal funds; or
D. The invoice is not mailed to City in strict accordance with any instruction on the
purchase order relating to the payment.
10.01 GRATUITIES AND BRIBES
City may, by written notice to Vendor, cancel this Agreement without incurring any
liability to Vendor if it is determined by City that gratuities or bribes in the form of
entertainment, gifts, or otherwise were offered or given by Vendor or its agents or
4
representatives to any City officer, employee or elected representative with respect to the
performance of this Agreement. In addition, Vendor may be subject to penalties stated in Title 8
of the Texas Penal Code.
11.01 TAXES
City is exempt from Federal Excise and State Sales Tax; therefore, tax shall not be
included in Vendor's charges.
12.01 ORDERS PLACED WITH ALTERNATE VENDORS
If Vendor cannot provide the Services as specified, City reserves the right and option to
obtain the products and services from another supplier or suppliers.
13.01 INSURANCE
Vendor shall meet all requirements as stated in the attached Request for Proposals
(including all attachments and exhibits), and its Response.
14.01 CITY'S REPRESENTATIVE
City hereby designates the following representative authorized to act in its behalf with
regard to this Agreement:
Tracy Herring
City of Round Rock, Environmental Services Division
2008 Enterprise Drive
Round Rock, Texas 78664
Telephone: 512-218-5559
Facsimile: 512-341-3316
15.01 RIGHT TO ASSURANCE
Whenever either party to this Agreement, in good faith, has reason to question the other
party's intent to perform hereunder, then demand may be made to the other party for written
assurance of the intent to perform. In the event that no written assurance is given within the
reasonable time specified when demand is made, then and in that event the demanding party may
treat such failure as an anticipatory repudiation of this Agreement.
16.01 DEFAULT
If Vendor abandons or defaults under this Agreement and is a cause of City purchasing
the specified goods and services elsewhere, Vendor agrees that it may be charged the difference
in cost, if any, and that it will not be considered in the re -advertisement of the service and that it
5
may not be considered in future bids for the same type of work unless the scope of work is
significantly changed.
Vendor shall be declared in default of this Agreement if it does any of the following:
A. Fails to fully, timely and faithfully perform any of its material obligations
under this Agreement;
B. Fails to provide adequate assurance of performance under the "Right to
Assurance" section herein; or
C. Becomes insolvent or seeks relief under the bankruptcy laws of the United
States.
17.01 TERMINATION AND SUSPENSION
A. Either party has the right to terminate this Agreement, in whole or in part, for
convenience and without cause, at any time upon thirty (30) days' written notice to the other
party.
B. In the event of any default by Vendor, City has the right to terminate this
Agreement for cause, upon ten (10) days' written notice to Vendor.
C. Vendor has the right to terminate this Agreement only for cause, that being in the
event of a material and substantial breach by City, or by mutual agreement to terminate
evidenced in writing by and between the parties.
D. In the event City terminates under subsections (A) or (B) of this section, the
following shall apply: Upon City's delivery of the referenced notice to Vendor, Vendor shall
discontinue all Services in connection with the performance of this Agreement and shall proceed
to cancel promptly all existing orders and contracts insofar as such orders and contracts are
chargeable to this Agreement. Within thirty (30) days after such notice of termination, Vendor
shall submit a statement showing in detail the Services satisfactorily performed under this
Agreement to the date of termination. City shall then pay Vendor that portion of the charges, if
undisputed. The parties agree that Vendor is not entitled to compensation for Services it would
have performed under the remaining term of the Agreement except as provided herein.
18.01 INDEMNIFICATION
Vendor shall defend (at the option of City), indemnify, and hold City, its successors,
assigns, officers, employees and elected officials harmless from and against all suits, actions,
legal proceedings, claims, demands, damages, costs, expenses, attorney's fees, and any and all
other costs or fees arising out of, or incident to, concerning or resulting from the negligent or
willful acts or omissions of Vendor, or Vendor's agents, employees or subcontractors, in the
performance of Vendor's obligations under this Agreement, no matter how, or to whom, such
loss may occur. Nothing herein shall be deemed to limit the rights of City or Vendor (including,
but not limited to the right to seek contribution) against any third party who may be liable for an
indemnified claim.
19.01 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES
Vendor, its agents, employees and subcontractors shall use best efforts to comply with all
applicable federal and state laws, the Charter and Ordinances of the City of Round Rock, as
amended, and with all applicable rules and regulations promulgated by local, state and national
boards, bureaus and agencies.
20.01 ASSIGNMENT AND DELEGATION
The parties each hereby bind themselves, their successors, assigns and legal
representatives to each other with respect to the terms of this Agreement. Neither party shall
assign, sublet or transfer any interest in this Agreement without prior written authorization of the
other party.
21.01 NOTICES
All notices and other communications in connection with this Agreement shall be in
writing and shall be considered given as follows:
1. When delivered personally to the recipient's address as stated in this Agreement;
or
2. Three (3) days after being deposited in the United States mail, with postage
prepaid to the recipient's address as stated in this Agreement.
Notice to Vendor:
Envirosolve
2120 Southwest Boulevard
Tulsa, OK 74107,
Notice to City:
James Nuse, City Manager
221 East Main Street
Round Rock, TX 78664
Stephan L. Sheets, City Attorney
AND TO: 309 East Main Street
Round Rock, TX 78664
Nothing contained herein shall be construed to restrict the transmission of routine
communications between representatives of City and Vendor.
22.01 APPLICABLE LAW; ENFORCEMENT AND VENUE
rDeleted:
This Agreement shall be enforceable in Round Rock, Texas, and if legal action is
necessary by either party with respect to the enforcement of any or all of the terms or conditions
herein, exclusive venue for same shall lie in Williamson County, Texas. This Agreement shall be
governed by and construed in accordance with the laws and court decisions of the State of Texas.
23.01 EXCLUSIVE AGREEMENT
This document, and all appended documents, constitutes the entire Agreement between
Vendor and City. This Agreement may only be amended or supplemented by mutual agreement
of the parties hereto in writing, duly authorized by action of the City Manager or City Council.
24.01 DISPUTE RESOLUTION
If a dispute or claim arises under this Agreement, the parties agree to first try to resolve
the dispute or claim by appropriate internal means, including referral to each party's senior
management. If the parties cannot reach a mutually satisfactory resolution, then and in that event
any such dispute or claim will be sought to be resolved with the help of a mutually selected
mediator. If the parties cannot agree on a mediator, City and Vendor shall each select a mediator
and the two mediators shall agree upon a third mediator. Any costs and fees, other than attorney
fees, associated with the mediation shall be shared equally by the parties.
City and Vendor hereby expressly agree that no claims or disputes between the parties
arising out of or relating to this Agreement or a breach thereof shall be decided by any arbitration
proceeding, including without limitation, any proceeding under the Federal Arbitration Act (9
USC Section 1-14) or any applicable state arbitration statute.
25.01 SEVERABILITY
The invalidity, illegality, or unenforceability of any provision of this Agreement or the
occurrence of any event rendering any portion or provision of this Agreement void shall in no
way affect the validity or enforceability of any other portion or provision of this Agreement. Any
void provision shall be deemed severed from this Agreement, and the balance of this Agreement
shall be construed and enforced as if this Agreement did not contain the particular portion or
provision held to be void. The parties further agree to amend this Agreement to replace any
stricken provision with a valid provision that comes as close as possible to the intent of the
stricken provision. The provisions of this section shall not prevent this entire Agreement from
being void should a provision which is of the essence of this Agreement be determined to be
void.
26.01 MISCELLANEOUS PROVISIONS
Standard of Care. Vendor represents that it employs trained, experienced and
competent persons to perform all of the Services, responsibilities and duties specified herein and
that such Services, responsibilities and duties shall be performed in a manner according to
generally accepted industry practices.
Time is of the Essence. Vendor understands and agrees that time is of the essence and
that any failure of Vendor to fulfill obligations for each portion of this Agreement within the
agreed timeframes will constitute a material breach of this Agreement. Vendor shall be fully
responsible for its delays or for failures to use best efforts in accordance with the terms of this
Agreement. Where damage is caused to City due to Vendor's failure to perform in these
circumstances, City may pursue any remedy available without waiver of any of City's additional
legal rights or remedies.
Force Majeure. Neither City nor Vendor shall be deemed in violation of this Agreement
if it is prevented from performing any of its obligations hereunder by reasons for which it is not
responsible as defined herein. However, notice of such impediment or delay in performance must
be timely given, and all reasonable efforts undertaken to mitigate its effects.
Multiple Counterparts. This Agreement may be executed in multiple counterparts, any
one of which shall be considered an original of this document; and all of which, when taken
together, shall constitute one and the same instrument.
IN WITNESS WHEREOF, City and Vendor have executed this Agreement on the dates
indicated.
CITY OF ROUND ROCK, TEXAS
By:
Printed Name: NAV% M'GIraw
Title: VYnr
Date Signed: 12'L1' 01
ATTEST:
Ciattit .mghikt
Sara L. White, City Secretary
FO ' TY, APPRO ` ED AS TO FORM:
Stepha 'Vi . Sheets, City Atto e
ENVIROSOLVE
/-
By • eT(cv—
Printed Name: j;i1Le M ?y/vim
Title: D,'u: y rON 4,67A.,d9er
Date Signed: AlevOe,,t Ler 11, 2 o0 y