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Ordinance No. 6,782930923 -9 ORDINANCE NO. 6782 AN ORDINANCE AUTHORIZING AND DIRECTING THE MAYOR TO • EXECUTE AND THE CITY CLERK TO ATTEST TO A CONTRACT WITH BAYTOWN RECYCLING WORKS, INC., AND AUTHORIZING PAYMENT OF THE SUM OF EIGHTEEN THOUSAND AND N01100 DOLLARS ($18,000.00) FOR THE PURPOSE OF CONTINUING RECYCLING OPERATIONS IN THE CITY OF BAYTOWN; REPEALING INCONSISTENT ORDINANCES; CONTAINING A SAVINGS CLAUSE AND SEVERABILITY CLAUSE; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. WHEREAS, the City of Baytown desires to improve the quality of life of the citizens of Baytown and promote responsible and practical ecological management through the promotion of the practice of waste materials recycling; and WHEREAS, Baytown Recycling Works, Inc. was formed for the purposes, among others, of promoting and encouraging, or causing to be promoted and encouraged, and facilitating the recycling of waste materials; and WHEREAS, the City of Baytown desires to contract with Baytown Recycling Works, Inc. to facilitate said recycling; and WHEREAS, Baytown Recycling Works, Inc., requires EIGHTEEN THOUSAND AND N01100 DOLLARS ($18,000.00) in funds for the purpose of continuing said recycling services; and WHEREAS, the City Council of the City of Baytown finds that the expenditure of such funds would substantially enhance the quality of life in the City of Baytown; and WHEREAS, any revenues of Baytown Recycling Works, Inc. in excess of expenses will be used for beautification programs within the City of Baytown, such as the Clean City Commission; NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes and directs the Mayor and City Clerk of the City of Baytown to execute and attest to a contract with Baytown Recycling Works, Inc., and authorizes payment of the sum of EIGHTEEN THOUSAND AND N01100 DOLLARS ($18,000.00) to be used for the purpose of continuing a recycling program which shall be available to the citizens of the City of Baytown, and under which any excess of revenues over expenses will be used for beautification programs within the corporate limits of the City of Baytown. A copy of said agreement is attached hereto, marked Exhibit "A," and made a part hereof for all intents and purposes. • Section 2: All ordinances or parts of ordinances inconsistent with the terms of this ordinance are hereby repealed; provided 930923 -9a however, that such repeal shall be only to the extent of such inconsistency and in all other respects this ordinance shall be cumulative of other ordinances regulating and governing the subject matter covered by this ordinance. Section 3: If any provisions, section, exception, subsection, paragraph, sentence, clause or phrase of this ordinance or the application of same to any person or set of circumstances, shall for any reason be held unconstitutional, void or invalid, such invalidity shall not affect the validity of the remaining provisions of this ordinance or their application to other persons or sets of circumstances and to this end all provisions of this ordinance are declared to be severable. Section 4: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of Baytown this 23rd day of September, 1993. .Cif e, PETE C. AL O, Mayor ATTEST: LYNDA-KILfORE, Deputy City Clerk 4 ACIO RAMIREZ, S City Attorney 1adnY-- cW9- 23- 93.x7cHnC0 Tl'RACr 0 2 • RECYCLING SERVICES CON'T'RACT STATE OF TEXAS $ $ COUNTY OF HARRIS $ THIS CONTRACT is made as of the day of , 1993, by and between the CITY OF BAYTOWN, (hereinafter referred to as City) and BAYTOWN RECYCLING WORKS, INC., (hereinafter referred to as Corporation). W I T N E S S E T H: WHEREAS, the City desires to improve the quality of life of the citizens of Baytown and promote responsible and practical ecological management through the promotion of the practice of waste materials recycling; and WHEREAS, the Corporation was formed for the purposes, among others, of promoting and encouraging, or causing to be promoted and encouraged, and facilitating the recycling of waste materials; and WHEREAS, the City desires to contract with the Corporation to facilitate said recycling; and WHEREAS, the Corporation requires EIGHTEEN THOUSAND AND N01100 DOLLARS ($18,000.00) in funds for the purpose of continuing said recycling services; and WHEREAS, the City Council of the City of Baytown finds that the expenditure of such funds would substantially enhance the quality of life in the City of Baytown, and WHEREAS, any revenues of Baytown Recycling Works, Inc. in excess of expenses will be used for beautification programs within 0 the City of Baytown, such as the Clean City Commission; MpBIT A NOW THEREFORE, for and in consideration of the premises and • mutual covenants herein contained, it is agreed as follows: C� section 1. services to be provided. The Corporation will open and manage a collection center for recyclables. Materials will be donated. Recycled materials will then be sold by the Corporation and funds used to cover expenses. Any excess of revenue over expenses will be used for beautification programs, such as the Clean City Commission. No monies will be paid for donated items. The Corporation will collect a range of recyclable materials including but not limited to aluminum cans, cardboard, newsprint, plastic, glass, and computer printout paper. Section 2. Committee. The Corporation shall prepare and submit to the City as soon as practicable after the end of the Corporation's fiscal year a written report describing in detail the services performed by the Corporation pursuant to this contract during the preceding fiscal year. Section 3. Funding. For and in consideration of the services to be performed by the Corporation and compliance with the terms of this contract and subject to the other provisions of this contract, the City agrees to pay to the Corporation the total sum of EIGHTEEN THOUSAND AND N01100 DOLLARS ($18,000.00). The City has no other obligation or responsibility to the Corporation other than tendering the above funds. 2 Section 4. Allocated funds. • Payments by the City to the Corporation are subject to funds being appropriated by the City Council of the City of Baytown for the purpose of facilitating the services provided in this contract. Section S. Term. This contract shall! be effective for a period of one year beginning on the date on which the contract is executed by the Mayor and City Clerk of the City of Baytown, Texas. It is specifically agreed that the Corporation shall not be obligated to perform any services under or pursuant to this contract and the City shall not be obligated to make any payments for services performed after the expiration of that period. Section 6. Termination for cause. A party may terminate its performance under this contract only upon default by the other party. Default by a party shall occur if the party fails to perform or observe any of the terms and conditions of this contract required to be performed or observed by that party. Should such a default occur, the party against whom the default has occurred shall have the right to terminate all or part of its duties under this contract as of the 30th day following the receipt by the defaulting party of a notice describing such default and intended termination, provided: (1) such termination shall be ineffective if within said 30 -day period the defaulting party cures the default, or (2) such termination may be stayed, at the sole option of the party against whom the default has occurred, pending cure of the default. 3 Section 7. independent contractor. The relationship of the Corporation to the City shall be that of an independent contractor. The City shall have no authority to direct the day -to -day activities of the Corporation, and shall have no other rights to internal working papers or other information or data than the City would have to any other independent contractor providing specific services. Section S. Parties in interest. This contract shall bind and benefit the City and the Corporation and shall not bestow any rights upon any third parties. section 9. Sion - waiver. Failure of either party hereto to insist on the strict performance of any of the agreements herein or to exercise any rights or remedies accruing thereunder upon default or failure of performance shall not be considered a waiver of the right to insist on and to enforce by an appropriate remedy strict compliance with any other obligation hereunder or to exercise any right or remedy occurring as a result of any future default or failure of performance. Section 10. Termination. All terms and conditions of this contract are considered material, and failure to perform any of the terms and conditions on the part of the Corporation shall be considered a breach of this contract. Should the Corporation fail to perform any of the terms or conditions, the City shall have the right to terminate the contract. � 0 4 Section 11. Applicable laws. This contract is subject to and shall be construed in accordance with the laws of the -State of Texas, the laws of the federal government of the United States of America and all rules and regulations of any regulatory body or officer having jurisdiction. This contract is performable in Harris and Chambers Counties, Texas. Section 12. Notices. All notices required or permitted hereunder shall be in writing and shall be deemed delivered when actually received or, if earlier, on the third day following deposit in a United States Postal Service post office or receptacle with proper postage affixed (certified mail, return receipt requested) addressed to the respective other party at the address described below or at such other address as the receiving party may have theretofore prescribed by notice to the sending Party: Marty Hochberg Baytown Recycling Works, Inc. 4314 Hugh Echols Blvd. Baytown, Texas 77521 Herb Thomas City of Baytown P. O. Box 424 Baytown, Texas 77522 -0424 Section 13. Audits and reports. The Corporation shall provide to the City, within 90 days of the close of the Corporation's fiscal year, its annual financial statements. The Corporation agrees that the City may review and 41 • audit the Corporation's records at any time to insure compliance with this Contract. The Corporation will provide the City with quarterly progress and accounting reports which shall state the amount of funds provided by the City which have been spent, the items or services on which those funds were spent, the quantities and types of materials which have been received for recycling, the amounts and types of recycled materials that have been generated, the total amounts of expenditures and revenues for that quarter, the sources of any revenues for that quarter, and the specific purposes for which any excess of revenues over expenses have been spent. Section 14. Ambiguities. In the event of any ambiguity in any of the terms of this contract, it shall not be construed for or against any party hereto on the basis that such party did or did not author the same. section 15. Entire agreement. This contract contains all the agreements of the parties relating to the subject matter hereof and is the full and final expression of the agreement between the parties. section 16. Insurance. The Corporation shall maintain policies providing the following insurance protection, each liability policy naming the City of Baytown as an additional insured and containing a requirement that, in the event of change or cancellation, ten (10) days prior written notice be sent by mail to the City. In each case a Certificate of Insurance describing the coverage shall be 6 • furnished by the Corporation and shall contain appropriate wording to the effect that the policies described cover the Corporation's lie operation under this contract. (a) Worker's Compensation. Statutory coverage. (b) Commercial General Liability. Insurance with limits of $250,000 per person and any one claim and subject to that limit for each person; $500,000 for two or more persons and any one accident for bodily injury liability on the comprehensive form. (c) Commercial Automobile Liability. Insurance with limits of $250,000 per person in any one claim and subject to that limit for each person; $500,000 for two or more persons and any one accident for bodily injury liability; and $500,000 for property damage liability on the comprehensive form covering all owned, non - owned, and hired automobiles which will be used in connection with the work to be done under this contract, and which are or are not for use exclusively on the premises that which the work under such contract is to be performed. The Corporation may purchase at its own expense additional or other insurance protection as it may deem necessary. Maintenance of the required minimum insurance protection does not relieve the Corporation of responsibility for any losses not covered by the above required policies. Section 17. Permits and licenses. The Corporation shall obtain, at its own expense, all permits and licenses required by law or ordinance and maintain them in full force and effect. 7 section is. supervision. The Corporation shall provide personnel acting on its behalf on site at all times that the facility is opened and shall give its personal supervision to the work or provide a competent superintendent, satisfactory to the City, with authority to act for the Corporation, on the site at all times during all activities other than collection of recyclables. section 19. Inspection. All services shall be subject to the inspection, examination, and test by an inspector designated by the City at any and all times during the term of this contract. The City shall have the right to reject defective services and' to require their correction. g 7 q n. Rejected services shall be satisfactorily corrected without charge. If the Corporation fails to proceed to correct the defective services, the City may proceed with corrective work and the Corporation shall reimburse the City for all direct costs occasioned in performing the corrected work. The Corporation shall at all times keep the storage area and the premises used by it free from accumulations of waste materials and rubbish, and prior to completion of the work shall remove any waste materials and rubbish from and about the premises. Upon completion of the work, the Corporation shall leave the storage areas and premises in a condition satisfactory to the City. Section 20. Equipment required by the Corporation. (a) The Corporation shall maintain all equipment used in performance of this contract or maintained upon the . premises in a clean condition at all times, in accordance with the instructions of the Health Department of the 8 City of Baytown. Each piece of collection equipment shall be well painted at all times and repainted as needed. (b) The Corporation shall maintain all of its equipment in good working condition at all times. The Corporation shall withdraw from service and promptly repair any piece of equipment which, in the opinion of the City Health Department or City Inspection Department, is unsafe, fails to operate properly or otherwise does not meet other provisions of this contract. (c) All recyclables or recycled materials hauled by the Corporation over public streets in the City of Baytown in open type containers or vehicles shall be securely tied and covered during hauling to prevent leakage, spillage or blowing. Section 21. Indemnification by Corporation. The Corporation agrees to protect, indemnify and save harmless the City against all loss, expense, damage, charges and costs (including court costs and fees) for injury to or death of persons and injury to or destruction of property suffered or alleged to have been suffered as a result of any act or omission on the part of the Corporation or others whose services are engaged by the Corporation or anyone directly or indirectly employed or controlled by either of them in the course and performance of the work provided for in this contract, except such injury, destruction or death as may be caused solely by the negligence or fault of the • City. P1 Section 22. Subcontracting and Assignment. • The Corporation shall not make any assignment of or pertaining to this waste materials collection and recycling contract, or any interest or right here, either voluntarily or by operation of law, without prior written approval of an official of the City of Baytown duly designated by the City Manger of the City of Baytown. Seation 23. Administration. (a) The administration and enforcement of this contract shall be the responsibility of the City Manager or his designated representative or representatives. (b) The City Manager shall recommend for adoption by the City Council, in resolution form, any rules or regulations required to enforce or carry out the terms and conditions of this contract. Section 24. Contract amendments. It is the intentions and agreement of the parties of this contract that all provisions which are required by law to be inserted here, shall be and are inserted here. However, if by mistake or otherwise some such provision is not inserted here, or is not inserted in proper form, upon the application of either party, the contract shall be amended so as to strictly comply with the law without prejudice to the right or either party. Section 25. contract not a Franchise. It is the understanding and intention of the parties that this agreement shall constitute a contract for the collection, recycling and marketing of recyclable materials; that it shall not constitute • a franchise; nor shall it be deemed or construed as such. 10 0 IN WITNESS WHEREOF, the parties have made and executed this contract in multiple copies, each of which shall be an original. CITY OF BAYTOWN: By: /,C.�` e LK� PETE C. AL O, Mayor ATTEST: By: EILEEN P. HALL, City Clerk k9AV—t UMAY WN—'yeft 11 BAYTOWN RECYCLING WORRB, INC. By. • MARTY HOCHBERG, President ATTEST: By: