R-13-12-05-H11 - 12/5/2013RESOLUTION NO. R -13-12-05-H11
WHEREAS, the City of Round Rock desires to contract with Roundtable Recycling, LLC
d/b/a WILCO Recycling ("WILCO Recycling"), a recyclable material facility, for the processing of its
recyclable material; and
WHEREAS, WILCO Recycling has submitted an Agreement for the Processing and
Marketing of Recyclable Materials; and
WHEREAS, the City Council desires to enter into said Agreement with WILCO Recycling,
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 The Processing and Marketing of Recyclable Materials by and Between the City of
Round Rock and Roundtable Recycling, LLC d/b/a WILCO Recycling, 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 5th day of December, 2013.
ALAN MCGRAW, Mayor
City of Round Rock, Texas
ATTEST:
SARA L. WHITE, City Clerk
0112.1304; 00287463
EXHIBIT
„A„
AGREEMENT
FOR THE PROCESSING AND MARKETING OF RECYCLABLE MATERIALS BY
AND BETWEEN THE CITY OF ROUND ROCK AND
ROUNDTABLE RECYCLING, LLC d/b/a WILCO RECYCLING
THE STATE OF TEXAS
CITY OF ROUND ROCK
COUNTY OF WILLIAMSON
COUNTY OF TRAVIS
KNOW ALL BY THESE PRESENTS:
That this Agreement for the Processing and Marketing of Recyclable Materials, (referred
to herein as the "Agreement") is made and entered into on this the day of the month of
December, 2013, 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 "City"), and Roundtable Recycling, LLC dba Wilco Recycling, a Texas limited liability
company whose address is 9801 Chandler Road, Taylor, Texas 76574 ("Contractor"). 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 entered into an Amended and Restated Refuse Collection Agreement
with Round Rock Refuse, Inc. on October 22, 2010 for the collection of garbage, rubbish, refuse
and the collection of Recyclable Material for residential customers within the City; and,
WHEREAS, Round Rock Refuse, Inc. currently transports the City's collected
Recyclable Material to WILCO Recycling for processing of the Recyclable Material; and
WHEREAS, City wishes to contract with WILCO Recycling (referred to hereafter as the
"Contractor"), a Recyclable Material Facility for the processing of its Recyclable Material; and
WHEREAS, Contractor agrees to process, package and market City's Recyclable
Material for conversion into useful products on a contractual basis; 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, the parties
00287375/ss2
mutually agree as follows:
1.01 DEFINITIONS
A. Agreement shall mean this Agreement for Processing and Marketing Recyclable
Materials.
B. Aluminum and Steel Recyclable Material shall mean any beverage container,
food can, bi-metal container, or lid with or without paper labels, rings, and lids composed
primarily of whole iron, aluminum, steel or other Recyclable Material of a similar nature.
C. City shall mean the City of Round Rock, located in Williamson and Travis
Counties, Texas.
D. Contractor shall mean Roundtable Recycling LLC dba Wilco Recycling, a
limited liability company authorized to do business in the State, and Contractor's assignees and
Contractor's subcontractors.
E. Effective Date means January 1, 2014.
F. 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.
G. Glass Recyclable Material shall mean any glass food and beverage bottles,
containers, or jars with or without paper labels, rings, and lids. Glass Recyclable Material shall
not mean window glass, porcelain, or china.
H. Paper Recyclable Material shall mean any:
(A) Kraft paper,
(B) Corrugated containers that have liners of Kraft, jute, or test liner including
dry food boxes, beer and soda carriers, shoe boxes,
(C) Old newspaper including slick paper inserts,
(D) Chipboard, and
(E) Other mixed paper including but not limited to junk mail, junk mail
inserts, residential mixed paper, bagged shredded paper, high-grade paper,
white and color ledger, copier paper, office paper, laser printer paper,
computer paper including continuous -formed perforated white bond or
green bar paper, book paper, cotton fiber content paper, duplicator paper,
form bond, manifold business forms, mimeo paper, note pad paper (no
backing), loose leaf fillers, stationery, writing paper, paper envelopes
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without plastic windows, carbonless (NCR) paper, tabulating cards,
facsimile paper, manila folders, magazines, paperback books, small
catalogs, telephone books and Yellow Pages.
I. Plastic Recyclable Material shall mean any #1 through #7 rigid plastic bottle,
container, jug or jar.
J. Recyclable Material shall mean Paper Recyclable Material, Plastic Recyclable
Material, Glass Recyclable Material, Aluminum and Steel Recyclable Material that has been
diverted from the nonhazardous Solid Waste stream for purposes of reuse, recycling, or
reclamation, a substantial portion of which is consistently used in the manufacture of products
that may otherwise be produced using raw or virgin materials. Recyclable Material is not Solid
Waste. However, Recyclable Material may become Solid Waste at such time, if any, as it is
abandoned or disposed of rather than recycled, whereupon it will be Solid Waste with respect
only to the party actually abandoning or disposing of the material. Notwithstanding, neither
Contractor nor the recyclables processor shall discard any portion of the collected single stream
recyclables unless they make up a de minimus amount included within the nonrecyclable
residual remaining after being sorted through recyclables sorting and packaging system.
K. Recyclable Material Facility shall mean the facility owned and operated by
WILCO Recycling.
M. State shall mean the State of Texas.
2.01 EFFECTIVE DATE, DURATION, AND TERM
A. This Agreement shall be effective on January 1, 2014, 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 initial term of this Agreement shall commence on January 1, 2014 and shall
continue in effect until December 31, 2018. Thereafter, this Agreement may be renewed only
upon the express written agreement of both parties and only provided Contractor has performed
each and every contractual obligation specified in this Agreement.
C. City reserves the right to terminate this Agreement as set forth in Section 13.01.
3.01 CONTRACTOR'S OBLIGATION TO PROVIDE SERVICES
As a continuing obligation, Contractor agrees to process, package and market the
Recyclable Material for conversion into useful products and to remit to City agreed payment as
set forth in Section 9.01.
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4.01 CONTRACTOR'S RESPONSIBILITIES
A. Contractor hereby affirms that it is duly organized and existing in good standing
under the laws of the State and is duly qualified and authorized to carry on the functions and
operations as contemplated by this Contract.
B. Contractor hereby affirms that it has the necessary processing capacity and
equipment to thoroughly process the quantity and type of Recyclable Material subject of this
Agreement for the term of this Contract as set forth in Section 2.01.
D. Contractor agrees to be solely responsible for ensuring the Recyclable Material
Facility is equipped with adequately sized truck scales and computerized record-keeping systems
for weighing and recording all incoming vehicles transporting Recyclable Material subject of this
Agreement. Contractor agrees to separately weigh, record and tabulated each load from City.
E. Contractor agrees to document that each scale has been annually certified with the
State no later than December 1 of each Contract Year and shall provide proof of certification to
City.
F. Contractor shall use best efforts to supervise and direct its agents or employees
competently, efficiently, and safely. Contractor shall adhere and conform to all legal
responsibilities related to such processing of Recyclable Material subject of this Agreement.
G. Contractor agrees to furnish and assume full responsibility for all services,
facilities, equipment, materials and incidentals necessary for the proper recycling of the
Recyclable Material subject of this Agreement.
H. Contractor agrees to obtain all permits and licenses, if any, and pay all fees
necessary for the proper handling, processing, conversion and marketing of the designated
Recyclable Material subject of this Agreement.
I. Contractor agrees to procure and maintain, during the life of this Contract the
following insurance coverage:
(i)
Worker's Compensation Insurance — on behalf of itself, its partners, and all
employees directly or indirectly employed by Contractor who are to provide a
service under this Contract of limits no less than as required by law.
(ii) Comprehensive/Commercial General Liability:
1. Bodily Injury Liability $1,000,000.00 per occurrence
2. Property Damage Liability $1,000,000.00 per occurrence
3. Total Aggregate $2,000,000.00
If Federal, State or local law requires a higher insurance limit, Contractor shall procure and
maintain the policy limit as specified by the applicable law. The policies of insurance shall be
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primary and written on forms acceptable to the City and placed with insurance carriers approved
and licensed by the State of Texas and meet a minimum financial A.M. Best & Company rating
of no less than "Excellent": VII.
Contractor shall file certificates of insurance meeting the requirements as set forth herein with
City prior to execution of this Contract. In addition, Contractor shall be solely responsible to
maintain that all certificates of insurance are up to date as filed at the City. Failure of Contractor
to fully comply with the requirements set forth herein regarding insurance may be considered a
material breach of this Contract and may be cause for termination of this Contract.
J. Contractor agrees that within ten (10) day after the execution of this Contract,
Contractor shall make, execute and deliver to the City a good and sufficient Performance Bond
in a form approved by the City, to secure the full, complete and faithful performance of the terms
and conditions herein. Such Performance Bond shall be in the amount of fifty thousand dollars
($50,000.00), and shall be renewed each year thereafter throughout the term of this Contract.
The Performance Bond shall be signed by the President or General Officer of the Contractor,
together with the signature of the corporate secretary and the corporate seal. The surety shall be
a surety company duly authorized to do business in the State of Texas; having an "A" or better
rating by A.M. Best or Standard and Poors; included on the list of surety companies approved by
the Treasurer of the United States of America; and acceptable to the City.
K. Contractor hereby affirms that to the best of Contractor's knowledge, there is no
action, suit or proceeding, at law or equity, before or by any court or government authority,
pending or threatened against Contractor, wherein an unfavorable decision, ruling, or finding
would materially adversely affect the performance by Contractor of its obligation hereunder or
the other transactions contemplated hereby, or which, in any way, would adversely affect the
validity or enforceability of this Contract, or any other contract or instrument entered into by
Contractor in connection with the transactions contemplated hereby.
5.01 RECORDKEEPING, REPORTING, AUDITED FINANCIAL STATEMENTS,
AND REPORT FORMAT
A. Contractor shall create, maintain and make available records that are reasonably
necessary to:
(i)
Document Recyclable Material deliveries by time delivered to the
Recyclable Material Facility; the Recyclable Material Facility processing
cost per ton; weight tickets showing tonnage of material delivered to the
Recyclable Material Facility; unaccepted loads by date collected; net
revenue received from the sale of Recyclable Material and other
information as requested by the City's Designated Representative in
Section 10.01.
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(ii) Document and submit to the City a monthly summary of Recyclable
Material processed and sold by the Recyclable Material Facility.
(iii) Such other documents and reports as City may reasonably require to verify
compliance with the Contract or to meet City's reporting requirements
with the State of Texas.
B. Contractor shall submit all monthly reports, to the Contract Administrator within
seven (7) calendar days following the end of each calendar month.
C. Contractor shall submit all annual reports to the Contract Administrator on or
before February 1 of each contract year. In addition, Contractor shall provide the Contract
Administrator with a copy of any annual financial audit performed for Contractor.
6.01 CITY INSPECTION RIGHTS
A. Upon twenty-four hours notification to Contractor, City or any of its duly
authorized representatives shall have access to all books, records, data and documents of the
Contractor that pertain to the contract for inspection, and audit, at City's expense.
B. The City or any of its duly authorized representatives shall have access to inspect
the Recyclable Material Facility and equipment to perform such inspections as City deems
reasonably necessary, to determine whether the services required to be provided by Contractor
under this Contract conform to the terms hereof. City shall conduct the inspection of facilities
and equipment during regular hours of operation. Contractor shall make available to City the
Recyclable Material Facility and assist to facilitate the performance of inspections by City's
representatives.
7.01 COLLECTION AND DELIVERY OF RECYCLABLE MATERIALS
The City will contract with one or more refuse collection companies ("Refuse Collection
Company") to collect and deliver the City's Recyclable Materials to the Recyclable Material
Facility. The City shall designate in writing each approved Refuse Collection Company.
Contractor agrees to accept and process all Recyclable Materials delivered to Contractor by the
Refuse Collection Company. Contractor understands and agrees that it will bill all tipping fees to
the Refuse Collection Company and that the City shall have no obligation whatsoever for
payment of such tipping fees.
8.01 TIPPING FEE
During the term of this Agreement and any renewals, Contractor agrees that the tipping
fee for all City's Recyclable Material delivered to the Recyclable Material Facility shall be
$25.36 per ton, or the tipping fee charged by the Williamson County Landfill, whichever is less.
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9.01 REVENUE SHARE PAYMENT
In the event Contractor recovers an average amount in excess of Ninety -Five Dollars
($95.00) per ton from the sale of City's processed Recyclable Material during a calendar month,
Contractor shall pay City fifty percent (50%) of the revenues so recovered in excess of Ninety -
Five Dollars ($95.00).
Contractor shall have the absolute obligation to pay City each month for any and all
processed Recyclable Material, in accordance with this Section 9.01. All payments by
Contractor to City shall be made payable to the City of Round Rock, Texas, shall be tendered to
City's representative designated in Section 10.01, and shall accompany corresponding statements
from City and/or City's representative.
10.01 CITY'S DESIGNATED REPRESENTATIVE
City hereby designates the following representative authorized to act in its behalf with
regard to this Agreement:
Michael D. Thane, P.E.
City of Round Rock, Director of Utilities
2008 Enterprise Drive
Round Rock, Texas 78664
Telephone: (512) 218-3236
mthane(airoundrocktexas.gov
11.01 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 thirty
(30) days after such demand is made, then and in that event the demanding party may treat such
failure as an anticipatory repudiation of this Agreement.
12.01 DEFAULT
Contractor shall be declared in default of this Agreement if it does any of the following:
A. Fails to make any payment in full when due;
B. Fails to fully, timely and faithfully perform any of its material obligations under
this Agreement;
C. Fails to provide adequate assurance of performance under the "Right to
Assurance" section herein; or
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D. Becomes insolvent or seeks relief under United States bankruptcy laws.
13.01 TERMINATION AND SUSPENSION
A. City has the right to terminate this Agreement for cause, that being in the event of
a material and substantial breach by Contractor, or by mutual agreement to terminate evidenced
in writing by and between the parties.
B. Contractor has the right to terminate this Agreement 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.
C. Should Contractor fail to make any payment in full when due, then, in addition to
any other rights and remedies available to City, City may immediately and without notice
suspend any further relationship with Contractor until the amount due has been paid in full.
14.01 INDEMNIFICATION
Contractor 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 fault of
Contractor, or Contractor's agents, employees or subcontractors, in the negligent performance of
Contractor'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 Contractor (including, but not
limited to the right to seek contribution) against any third party who may be liable for an
indemnified claim.
15.01 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES
Contractor, 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.
16.01 ASSIGNMENT AND DELEGATION
The parties each hereby bind themselves, their successors, assigns and legal
representatives to each other with respect to the terms hereof. Neither party shall assign, sublet
or transfer any interest in this Agreement without prior written authorization of the other party.
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17.01 NOTICES
All notices and other communications in connection with this Agreement shall be in
writing and shall be considered given as follows:
A. When delivered personally to recipient's address as stated in this Agreement; or
B. 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 Contractor:
WILCO Recycling
John Rabon 9801
Chandler Road
Taylor, TX 76574
Notice to City:
Steve Norwood, City Manager
221 East Main Street AND TO:
Round Rock, TX 78664
Stephan L. Sheets, City Attorney
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.
18.01 APPLICABLE LAW; ENFORCEMENT AND VENUE
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.
19.01 EXCLUSIVE AGREEMENT
This document and all appended documents constitute the entire Agreement between City
and Contractor. This Agreement may only be amended or supplemented by mutual agreement of
the parties hereto in writing.
20.01 SUPPLEMENTAL AGREEMENTS
The terms of this Agreement may be modified by written Supplemental Agreement
hereto, duly authorized by City Council or City Manager action, if City determines that there has
been a significant change in (1) the scope, complexity, or character of the services to be
9
performed; or (2) the duration of the work. Any such Supplemental Agreement must be
executed by both parties within the period specified as the term of this Agreement. Contractor
shall not perform any work or incur any additional costs prior to the execution, by both parties,
of such Supplemental Agreement. Contractor shall make no claim for extra work done or
materials furnished unless and until there is full execution of any Supplemental Agreement, and
City shall not be responsible for actions by Contractor nor for any costs incurred by Contractor
relating to additional work not directly authorized by Supplemental Agreement.
21.01 DISPUTE RESOLUTION
City and Contractor 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.
22.01 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 void.
23.01 INDEPENDENT CONTRACTOR STATUS
Contractor is an independent contractor, not City's employee. Contractor's employees or
subcontractors are not City's employees. This Agreement does not create a partnership
relationship. Neither party has authority to enter into contracts as agent for the other party.
Contractor and City agree to the following rights consistent with an independent contractor
relationship:
A. Contractor has the right to perform services for others during the term of this
Agreement;
B. Contractor has the sole right to control and direct the means, manner and method
by which services required by this Agreement will be performed;
C. Contractor has the right to hire assistants as subcontractors, or to use employees to
provide the services required by this Agreement;
D. Contractor or its employees or subcontractors shall perform the services required
l0
hereunder. City shall not hire, supervise, or pay any assistants to help Contractor;
E. Neither Contractor nor its employees or subcontractors shall receive any training
from City in the skills necessary to perform the services required by this
Agreement;
F. City shall not require Contractor or its employees or subcontractors to devote full
time to performing the services required by this Agreement; and
G. Neither Contractor nor its employees or subcontractors are eligible to participate
in any employee pension, health, vacation pay, sick pay, or other fringe benefit
plan of City.
24.01 MISCELLANEOUS PROVISIONS
Standard of Care. Contractor 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 and with all applicable laws.
Time is of the Essence. Contractor understands and agrees that time is of the essence and
that any failure of Contractor to fulfill obligations for each portion of this Agreement within the
agreed timeframes will constitute a material breach of this Agreement. Contractor 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 Contractor'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 Contractor 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.
Waiver. No delay or omission by either party in exercising any right or power shall
impair such right or power or be construed to be a waiver. A waiver by either party of any of the
covenants to be performed by the other or any breach thereof shall not be construed to be a
waiver of any succeeding breach or of any other covenant. No waiver of discharge shall be valid
unless in writing and signed by an authorized representative of the party against whom such
waiver or discharge is sought to be enforced.
Confidentiality. The parties recognize and understand that City is subject to the
Texas Public Information Act and its duties run in accordance therewith.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement.
CITY OF ROUND ROCK, TEXAS
By:
Printed Name:
Title:
Date Signed:
FOR CITY, ATTEST:
By:
Sara L. White, City Clerk
FOR CITY, APPROVED AS TO FORM:
By:
Stephan L. Sheets, City Attorney
WILCO RECYCLING
By:
Printed Name:
Title:
Date Signed:
*CKTDAS
PURPOSE PASSION PROSPERITY
City of Round Rock
Agenda Item Summary
Agenda Number: H.11
Title: Consider a resolution authorizing the Mayor to execute an Agreement for
the Processing and Marketing of Recyclable Materials with WILCO
Recycling.
Type: Resolution
Governing Body: City Council
Agenda Date: 12/5/2013
Dept Director: Michael Thane, Director of Utilities and Environmental Services
Cost:
Indexes: General Fund
Attachments: Resolution, Exhibit A
Department: Utilities and Environmental Services
Text of Legislative File 13-954
On August 26, 2010, the City Council approved an amendment to the City Ordinance
regarding the implementation of a comprehensive solid waste management and recycling
program for the citizens of Round Rock. The new service, which commenced on January 1,
2011, provides residents with two 96 -gallon containers, one for garbage and one for
recycling. The garbage is collected once per week and the recycling collected every other
week.
Round Rock Refuse has been transporting the City's collected Recyclable Material to
WILCO Recycling for processing of the Recyclable Materials since the new program
commenced in 2011. The tipping fee and cost sharing of revenues was included in the
Round Rock Refuse contract. The City wishes to remove that language from the Round
Rock Refuse contract and establish the tipping fee and revenue sharing procedure in a
separate contract with WILCO Recycling. Round Rock Refuse will continue to collect and
transport the recyclable materials to the WILCO Recycling Facility.
During the term of the Agreement and any renewals, the tipping fee for all of the City's
Recyclable Material delivered to WILCO Recycling shall be $25.36 per ton, or the tipping
fee charged by the Williamson County Landfill, whichever is less.
In the event that WILCO Recycling recovers an average amount in excess of $95 per ton
from the sale of City's processed Recyclable Material during a calendar month , WILCO
Recycling shall pay the City 50% of the revenues recovered in excess of $95.
City of Round Rock Page 1 Printed on 12/3/2013
Agenda Item Summary Continued (13-954)
This Agreement shall be effective January 1, 2014 and remain in effect for five years.
SOURCE OF FUNDS: GENERAL FUND
Staff recommends approval.
City of Round Rock Page 2 Printed on 12/3/2013
EXECUTED
ORIGINAL
DOCUMENT
FOLLOW
AGREEMENT
FOR THE PROCESSING AND MARKETING OF RECYCLABLE MATERIALS BY
AND BETWEEN THE CITY OF ROUND ROCK AND
ROUNDTABLE RECYCLING, LLC d/b/a WILCO RECYCLING
THE STATE OF TEXAS §
§
CITY OF ROUND ROCK § KNOW ALL BY THESE PRESENTS:
§
COUNTY OF WILLIAMSON §
COUNTY OF TRAVIS §
That this Agreement for the Processing and Marketing of Recyclable Materials, (referred
to herein as the "Agreement") is made and entered into on this the' day of the month of
December, 2013, 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 "City"), and Roundtable Recycling, LLC dba Wilco Recycling, a Texas limited liability
company whose address is 9801 Chandler Road, Taylor, Texas 76574 ("Contractor"). 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 entered into an Amended and Restated Refuse Collection Agreement
with Round Rock Refuse, Inc. on October 22, 2010 for the collection of garbage, rubbish, refuse
and the collection of Recyclable Material for residential customers within the City; and,
WHEREAS, Round Rock Refuse, Inc. currently transports the City's collected
Recyclable Material to WILCO Recycling for processing of the Recyclable Material; and
WHEREAS, City wishes to contract with WILCO Recycling (referred to hereafter as the
"Contractor"), a Recyclable Material Facility for the processing of its Recyclable Material; and
WHEREAS, Contractor agrees to process, package and market City's Recyclable
Material for conversion into useful products on a contractual basis; 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, the parties
00287375/ss2
R --0-t2 (i9-klI
mutually agree as follows:
1.01 DEFINITIONS
A. Agreement shall mean this Agreement for Processing and Marketing Recyclable
Materials.
B. Aluminum and Steel Recyclable Material shall mean any beverage container,
food can, bi-metal container, or lid with or without paper labels, rings, and lids composed
primarily of whole iron, aluminum, steel or other Recyclable Material of a similar nature.
C. City shall mean the City of Round Rock, located in Williamson and Travis
Counties, Texas.
D. Contractor shall mean Roundtable Recycling LLC dba Wilco Recycling, a
limited liability company authorized to do business in the State, and Contractor's assignees and
Contractor's subcontractors.
E. Effective Date means January 1, 2014.
F. 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.
G. Glass Recyclable Material shall mean any glass food and beverage bottles,
containers, or jars with or without paper labels, rings, and lids. Glass Recyclable Material shall
not mean window glass, porcelain, or china.
H. Paper Recyclable Material shall mean any:
(A) Kraft paper,
(B) Corrugated containers that have liners of Kraft, jute, or test liner including
dry food boxes, beer and soda carriers, shoe boxes,
(C) Old newspaper including slick paper inserts,
(D) Chipboard, and
(E) Other mixed paper including but not limited to junk mail, junk mail
inserts, residential mixed paper, bagged shredded paper, high-grade paper,
white and color ledger, copier paper, office paper, laser printer paper,
computer paper including continuous -formed perforated white bond or
green bar paper, book paper, cotton fiber content paper, duplicator paper,
form bond, manifold business forms, mimeo paper, note pad paper (no
backing), loose leaf fillers, stationery, writing paper, paper envelopes
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without plastic windows, carbonless (NCR) paper, tabulating cards,
facsimile paper, manila folders, magazines, paperback books, small
catalogs, telephone books and Yellow Pages.
I. Plastic Recyclable Material shall mean any #1 through #7 rigid plastic bottle,
container, jug or jar.
J. Recyclable Material shall mean Paper Recyclable Material, Plastic Recyclable
Material, Glass Recyclable Material, Aluminum and Steel Recyclable Material that has been
diverted from the nonhazardous Solid Waste stream for purposes of reuse, recycling, or
reclamation, a substantial portion of which is consistently used in the manufacture of products
that may otherwise be produced using raw or virgin materials. Recyclable Material is not Solid
Waste. However, Recyclable Material may become Solid Waste at such time, if any, as it is
abandoned or disposed of rather than recycled, whereupon it will be Solid Waste with respect
only to the party actually abandoning or disposing of the material. Notwithstanding, neither
Contractor nor the recyclables processor shall discard any portion of the collected single stream
recyclables unless they make up a de minimus amount included within the nonrecyclable
residual remaining after being sorted through recyclables sorting and packaging system.
K. Recyclable Material Facility shall mean the facility owned and operated by
WILCO Recycling.
M. State shall mean the State of Texas.
2.01 EFFECTIVE DATE, DURATION, AND TERM
A. This Agreement shall be effective on January 1, 2014, 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 initial term of this Agreement shall commence on January 1, 2014 and shall
continue in effect until December 31, 2018. Thereafter, this Agreement may be renewed only
upon the express written agreement of both parties and only provided Contractor has performed
each and every contractual obligation specified in this Agreement.
C. City reserves the right to terminate this Agreement as set forth in Section 13.01.
3.01 CONTRACTOR'S OBLIGATION TO PROVIDE SERVICES
As a continuing obligation, Contractor agrees to process, package and market the
Recyclable Material for conversion into useful products and to remit to City agreed payment as
set forth in Section 9.01.
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4.01 CONTRACTOR'S RESPONSIBILITIES
A. Contractor hereby affirms that it is duly organized and existing in good standing
under the laws of the State and is duly qualified and authorized to carry on the functions and
operations as contemplated by this Contract.
B. Contractor hereby affirms that it has the necessary processing capacity and
equipment to thoroughly process the quantity and type of Recyclable Material subject of this
Agreement for the term of this Contract as set forth in Section 2.01.
D. Contractor agrees to be solely responsible for ensuring the Recyclable Material
Facility is equipped with adequately sized truck scales and computerized record-keeping systems
for weighing and recording all incoming vehicles transporting Recyclable Material subject of this
Agreement. Contractor agrees to separately weigh, record and tabulated each load from City.
E. Contractor agrees to document that each scale has been annually certified with the
State no later than December 1 of each Contract Year and shall provide proof of certification to
City.
F. Contractor shall use best efforts to supervise and direct its agents or employees
competently, efficiently, and safely. Contractor shall adhere and conform to all legal
responsibilities related to such processing of Recyclable Material subject of this Agreement.
G. Contractor agrees to furnish and assume full responsibility for all services,
facilities, equipment, materials and incidentals necessary for the proper recycling of the
Recyclable Material subject of this Agreement.
H. Contractor agrees to obtain all permits and licenses, if any, and pay all fees
necessary for the proper handling, processing, conversion and marketing of the designated
Recyclable Material subject of this Agreement.
I. Contractor agrees to procure and maintain, during the life of this Contract the
following insurance coverage:
(i)
Worker's Compensation Insurance — on behalf of itself, its partners, and all
employees directly or indirectly employed by Contractor who are to provide a
service under this Contract of limits no less than as required by law.
(ii) Comprehensive/Commercial General Liability:
1. Bodily Injury Liability $1,000,000.00 per occurrence
2. Property Damage Liability $1,000,000.00 per occurrence
3. Total Aggregate $2,000,000.00
If Federal, State or local law requires a higher insurance limit, Contractor shall procure and
maintain the policy limit as specified by the applicable law. The policies of insurance shall be
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primary and written on forms acceptable to the City and placed with insurance carriers approved
and licensed by the State of Texas and meet a minimum financial A.M. Best & Company rating
of no less than "Excellent": VII.
Contractor shall file certificates of insurance meeting the requirements as set forth herein with
City prior to execution of this Contract. In addition, Contractor shall be solely responsible to
maintain that all certificates of insurance are up to date as filed at the City. Failure of Contractor
to fully comply with the requirements set forth herein regarding insurance may be considered a
material breach of this Contract and may be cause for termination of this Contract.
J. Contractor agrees that within ten (10) day after the execution of this Contract,
Contractor shall make, execute and deliver to the City a good and sufficient Performance Bond
in a form approved by the City, to secure the full, complete and faithful performance of the terms
and conditions herein. Such Performance Bond shall be in the amount of fifty thousand dollars
($50,000.00), and shall be renewed each year thereafter throughout the term of this Contract.
The Performance Bond shall be signed by the President or General Officer of the Contractor,
together with the signature of the corporate secretary and the corporate seal. The surety shall be
a surety company duly authorized to do business in the State of Texas; having an "A" or better
rating by A.M. Best or Standard and Poors; included on the list of surety companies approved by
the Treasurer of the United States of America; and acceptable to the City.
K. Contractor hereby affirms that to the best of Contractor's knowledge, there is no
action, suit or proceeding, at law or equity, before or by any court or government authority,
pending or threatened against Contractor, wherein an unfavorable decision, ruling, or finding
would materially adversely affect the performance by Contractor of its obligation hereunder or
the other transactions contemplated hereby, or which, in any way, would adversely affect the
validity or enforceability of this Contract, or any other contract or instrument entered into by
Contractor in connection with the transactions contemplated hereby.
5.01 RECORDKEEPING, REPORTING, AUDITED FINANCIAL STATEMENTS,
AND REPORT FORMAT
A. Contractor shall create, maintain and make available records that are reasonably
necessary to:
(i) Document Recyclable Material deliveries by time delivered to the
Recyclable Material Facility; the Recyclable Material Facility processing
cost per ton; weight tickets showing tonnage of material delivered to the
Recyclable Material Facility; unaccepted loads by date collected; net
revenue received from the sale of Recyclable Material and other
information as requested by the City's Designated Representative in
Section 10.01.
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(ii) Document and submit to the City a monthly summary of Recyclable
Material processed and sold by the Recyclable Material Facility.
(iii) Such other documents and reports as City may reasonably require to verify
compliance with the Contract or to meet City's reporting requirements
with the State of Texas.
B. Contractor shall submit all monthly reports, to the Contract Administrator within
seven (7) calendar days following the end of each calendar month.
C. Contractor shall submit all annual reports to the Contract Administrator on or
before February 1 of each contract year. In addition, Contractor shall provide the Contract
Administrator with a copy of any annual financial audit performed for Contractor.
6.01 CITY INSPECTION RIGHTS
A. Upon twenty-four hours notification to Contractor, City or any of its duly
authorized representatives shall have access to all books, records, data and documents of the
Contractor that pertain to the contract for inspection, and audit, at City's expense.
B. The City or any of its duly authorized representatives shall have access to inspect
the Recyclable Material Facility and equipment to perform such inspections as City deems
reasonably necessary, to determine whether the services required to be provided by Contractor
under this Contract conform to the terms hereof. City shall conduct the inspection of facilities
and equipment during regular hours of operation. Contractor shall make available to City the
Recyclable Material Facility and assist to facilitate the performance of inspections by City's
representatives.
7.01 COLLECTION AND DELIVERY OF RECYCLABLE MATERIALS
The City will contract with one or more refuse collection companies ("Refuse Collection
Company") to collect and deliver the City's Recyclable Materials to the Recyclable Material
Facility. The City shall designate in writing each approved Refuse Collection Company.
Contractor agrees to accept and process all Recyclable Materials delivered to Contractor by the
Refuse Collection Company. Contractor understands and agrees that it will bill all tipping fees to
the Refuse Collection Company and that the City shall have no obligation whatsoever for
payment of such tipping fees.
8.01 TIPPING FEE
During the term of this Agreement and any renewals, Contractor agrees that the tipping
fee for all City's Recyclable Material delivered to the Recyclable Material Facility shall be
$25.36 per ton, or the tipping fee charged by the Williamson County Landfill, whichever is less.
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9.01 REVENUE SHARE PAYMENT
In the event Contractor recovers an average amount in excess of Ninety -Five Dollars
($95.00) per ton from the sale of City's processed Recyclable Material during a calendar month,
Contractor shall pay City fifty percent (50%) of the revenues so recovered in excess of Ninety -
Five Dollars ($95.00).
Contractor shall have the absolute obligation to pay City each month for any and all
processed Recyclable Material, in accordance with this Section 9.01. All payments by
Contractor to City shall be made payable to the City of Round Rock, Texas, shall be tendered to
City's representative designated in Section 10.01, and shall accompany corresponding statements
from City and/or City's representative.
10.01 CITY'S DESIGNATED REPRESENTATIVE
City hereby designates the following representative authorized to act in its behalf with
regard to this Agreement:
Michael D. Thane, P.E.
City of Round Rock, Director of Utilities
2008 Enterprise Drive
Round Rock, Texas 78664
Telephone: (512) 218-3236
mthane@roundrocktexas.gov
11.01 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 thirty
(30) days after such demand is made, then and in that event the demanding party may treat such
failure as an anticipatory repudiation of this Agreement.
12.01 DEFAULT
Contractor shall be declared in default of this Agreement if it does any of the following:
A. Fails to make any payment in full when due;
B. Fails to fully, timely and faithfully perform any of its material obligations under
this Agreement;
C. Fails to provide adequate assurance of performance under the "Right to
Assurance" section herein; or
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D. Becomes insolvent or seeks relief under United States bankruptcy laws.
13.01 TERMINATION AND SUSPENSION
A. City has the right to terminate this Agreement for cause, that being in the event of
a material and substantial breach by Contractor, or by mutual agreement to terminate evidenced
in writing by and between the parties.
B. Contractor has the right to terminate this Agreement 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.
C. Should Contractor fail to make any payment in full when due, then, in addition to
any other rights and remedies available to City, City may immediately and without notice
suspend any further relationship with Contractor until the amount due has been paid in full.
14.01 INDEMNIFICATION
Contractor 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 fault of
Contractor, or Contractor's agents, employees or subcontractors, in the negligent performance of
Contractor'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 Contractor (including, but not
limited to the right to seek contribution) against any third party who may be liable for an
indemnified claim.
15.01 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES
Contractor, 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.
16.01 ASSIGNMENT AND DELEGATION
The parties each hereby bind themselves, their successors, assigns and legal
representatives to each other with respect to the terms hereof. Neither party shall assign, sublet
or transfer any interest in this Agreement without prior written authorization of the other party.
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17.01 NOTICES
All notices and other communications in connection with this Agreement shall be in
writing and shall be considered given as follows:
A. When delivered personally to recipient's address as stated in this Agreement; or
B. 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 Contractor:
WILCO Recycling
John Rabon 9801
Chandler Road
Taylor, TX 76574
Notice to City:
Steve Norwood, City Manager
221 East Main Street AND TO:
Round Rock, TX 78664
Stephan L. Sheets, City Attorney
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.
18.01 APPLICABLE LAW; ENFORCEMENT AND VENUE
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.
19.01 EXCLUSIVE AGREEMENT
This document and all appended documents constitute the entire Agreement between City
and Contractor. This Agreement may only be amended or supplemented by mutual agreement of
the parties hereto in writing.
20.01 SUPPLEMENTAL AGREEMENTS
The terms of this Agreement may be modified by written Supplemental Agreement
hereto, duly authorized by City Council or City Manager action, if City determines that there has
been a significant change in (1) the scope, complexity, or character of the services to be
9
performed; or (2) the duration of the work. Any such Supplemental Agreement must be
executed by both parties within the period specified as the term of this Agreement. Contractor
shall not perform any work or incur any additional costs prior to the execution, by both parties,
of such Supplemental Agreement. Contractor shall make no claim for extra work done or
materials furnished unless and until there is full execution of any Supplemental Agreement, and
City shall not be responsible for actions by Contractor nor for any costs incurred by Contractor
relating to additional work not directly authorized by Supplemental Agreement.
21.01 DISPUTE RESOLUTION
City and Contractor 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.
22.01 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 void.
23.01 INDEPENDENT CONTRACTOR STATUS
Contractor is an independent contractor, not City's employee. Contractor's employees or
subcontractors are not City's employees. This Agreement does not create a partnership
relationship. Neither party has authority to enter into contracts as agent for the other party.
Contractor and City agree to the following rights consistent with an independent contractor
relationship:
A. Contractor has the right to perform services for others during the term of this
Agreement;
B. Contractor has the sole right to control and direct the means, manner and method
by which services required by this Agreement will be performed;
C. Contractor has the right to hire assistants as subcontractors, or to use employees to
provide the services required by this Agreement;
D. Contractor or its employees or subcontractors shall perform the services required
10
hereunder. City shall not hire, supervise, or pay any assistants to help Contractor;
E. Neither Contractor nor its employees or subcontractors shall receive any training
from City in the skills necessary to perform the services required by this
Agreement;
F. City shall not require Contractor or its employees or subcontractors to devote full
time to performing the services required by this Agreement; and
G. Neither Contractor nor its employees or subcontractors are eligible to participate
in any employee pension, health, vacation pay, sick pay, or other fringe benefit
plan of City.
24.01 MISCELLANEOUS PROVISIONS
Standard of Care. Contractor 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 and with all applicable laws.
Time is of the Essence. Contractor understands and agrees that time is of the essence and
that any failure of Contractor to fulfill obligations for each portion of this Agreement within the
agreed timeframes will constitute a material breach of this Agreement. Contractor 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 Contractor'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 Contractor 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.
Waiver. No delay or omission by either party in exercising any right or power shall
impair such right or power or be construed to be a waiver. A waiver by either party of any of the
covenants to be performed by the other or any breach thereof shall not be construed to be a
waiver of any succeeding breach or of any other covenant. No waiver of discharge shall be valid
unless in writing and signed by an authorized representative of the party against whom such
waiver or discharge is sought to be enforced.
Confidentiality. The parties recognize and understand that City is subject to the
Texas Public Information Act and its duties run in accordance therewith.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement.
CITY OF ROUND ROCK, TEXAS
By:
Printed Name: him mc./?rim
Title: WI QY'
Date Signed: Z* 5
FOR CITY, ATTEST:
By:
Sara L. White, City Clerk
FOR CITY, PPROVED AS TO FORM:
By:
Stephan L.
heets, City Attorney
WILCO RECYCLIN
By: �.. .1 K«�r�
Printed Nance: ZFo k ►�
Title: 6-ewver4 Ma Ko rr
Date Signed: kW 40 -tot- 2 S12913