22-2023ORDINANCE NO. 22-2023
AN ORDINANCE OF THE CITY OF DENTON, A TEXAS HOME-RULE MUNICIPAL
CORPORATION, AUTHORIZING THE CITY MANAGER TO EXECUTE AN INTERLOCAL
COOPERATION AGREEMENT WITH WISE COUNTY, PROVIDING FOR A VOLUMEAGREEMENT FOR THE LANDFILL FOR A TERM OF TWO (2) YEARS BEGINNINGOCTOBER 1, 2022, WITH NO RENEWALS OR EXTENSIONS; AND PROVIDING ANEFFECTIVE DATE.
WHEREAS, the City Council of the City of Denton desires that the City of Denton Landfill
receive predictable tonnages of solid waste for both revenue and management purposes; and
WHEREAS, the Contactor is willing to deliver a specified annual tonnage of solid waste
in consideration of a discounted disposal change and make payment based on the tonnage; and
WHEREAS, the City of Denton has determined that this contract is in the public interest:
NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The findings and recitations contained in the preamble of this Ordinance
are incorporated herein by reference.
SECTION 2. The City Council of the City of Denton hereby approves the Interlocal
Agreement with Wise County attached hereto for a volume agreement for the Landfill for a term
of two (2) years effective October 1, 2022, with no renewals or extensions.
SECTION 3. The City Manager, or their designee, is hereby authorized to execute the
contract and carry out the duties and responsibilities of the City as provided in the Contract.
SECTION 4. This Ordinance shall become effective immediately upon its passage and
approval.
Th, m,a,„ to app„*, thi, „di„,„„ w,s made by -bsB boIS
by the ordinance was pas-sem approved by the following vote[b 01
Aye
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Nay Abstain Absent
Mayor Gerard Hudspeth:
Vicki Byrd, District 1 :
Brian Beck. District 2 :
Jesse Davis. District 3 :
Vacant. District 4:
Brandon Chase McGee,
At Large Place 5 :
Chris Watts, At Large Place 6:
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PASSED AND APPROVED this the Gm d,y ,f t)e(]Z47ubz y-. 2022.
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GERARD HUDSPETH, MAYOR
ATTEST:
ROSA RIOS. CITY SECRETARY
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APPROVED AS TO LEGAL FORM:
MACK REINWAND. CITY ATTORNEY
INTERLOCAL AGREEMENT
FOR
MODIFIED LANDFILL DISPOSAL RATE
This Interlocal Agreement for Modified Landfill Disposal Rate (“Contract”) is made by and between the
City of Denton, a Texas home-rule municipality (the “City” ), and Wise County, a political subdivision of
the State of Texas, with its principal address at 101 N. Trinity, Decatur, Texas 76234 (“Contractor"). The
City and Wise County are collectively referred to hereafter as the “Parties” or individually as a “Party" .
RECITALS:
WHEREAS, City desires that the City of Denton Landfill (“Landfill") receive predictable tonnages of
solid waste for both revenue and management purposes; and
WHEREAS, Contractor is willing to guarantee delivery of a specified annual tonnage of solid waste
in consideration of a discounted disposal charge; and
WHEREAS, this Contract has been authorized by the governing bodies of the City of Denton and
Wise County; and
WHEREAS, the Interlocal Cooperation Act, contained in the Texas Government Code Chapter 791
authorizes units of local government to contract with one or more units of local government to perform
governmental functions and services; and
WHEREAS, both parties have agreed that this Contract is in the public interest and is mutually
advantageous to both parties to enter this Contract.
NOW, THEREFORE, in consideration of the mutual promises, covenants, and conditions contained
in this contract, City and Contractor agree to the following terms and conditions:
1. Administration. This Contract shall be administered on behalf of City of Denton by its Director of
Solid Waste or the Director’s designee (hereinafter called the “Director"), and on behalf of
Contractor by its duly authorized officer or employee.
2. Delivery of Acceptable Solid Waste. Contractor agrees that it will pay to deliver to the Landfill
Acceptable Solid Waste in the following tonnage (“Annual Tonnage”) for each year of the Contract
and City agrees to accept all such Acceptable Solid Waste at the Landfill:
Contract Year
2022-2023
2023-2024
Annual Tonnage
4,CX>0 tons
4,tX)0 tons
3. Additional Delivery of Acceptable Solid Waste. Contractor understands and agrees that any
volume of delivered acceptable solid waste in excess of the Annual Tonnage will be paid at the
Non-Denton Residents/Businesses rate in the Utilities Rate Ordinance, as amended. A rate
ordinance is approved annually by the Denton City Council.
4.Reporting of Material Diversion. Contractor understands that City requires quarterly information
from Contractor detailing diversion activities conducted by Contractor. This would include
tonnages of materials delivered to a Materials Recovery Facility (“MRF"}, compost facility, or any
other type of re-use or recycling facility. Contractor shall provide to the City on a quarterly basis,
(with quarter 1 being October – December, 2022 with quarters 2, 3 and 4 being the following 3
months respectively) information detailing the gross and net recycling tonnages delivered, and a
list of material diverted with tonnages.
5. Contract Year means any period during the contract beginning on October 1 and ending on
September 30 of the following year.
6.Acceptable Solid Waste means Acceptable Solid Waste means all wet or dry Solid Waste that is
authorized under State permit MSW 1590B to be disposed of at the Landfill under applicable
federal, state, and local laws, regulations, ordinances, rules, permits, licenses, and governmental
orders or directives, and that is not Unacceptable Solid Waste (as defined in Section 11 below).
Acceptable Solid Waste does not include sludge, special waste, or material of citizens served by
other municipalities or corporations. “Solid Waste" as used herein shall have the same meaning
as Municipal Solid Waste set forth in Subchapter A, Section 361.003(20) of the Texas Health and
Safety Code (also known as the Texas Solid Waste Disposal Act).
7 Delivery Procedures; Operation of the Landfill.
a. Operation of the Landfill; Procedures. The delivery of Acceptable Solid Waste to the
Landfill, which shall occur only during the Landfill’s posted hours, shall be governed by
the procedures applicable to haulers utilizing the Landfill. Contractor shall comply with all
Landfill procedures established by City ordinance and promulgated by the Director in the
disposal of Acceptable Solid Waste, as same may be amended from time to time.
Notwithstanding anything in this Contract to the contrary, City shall have the right, in its
sole discretion, to close its Landfill, in whole or in part, either temporarily or permanently,
at any time for any reason. Upon any such permanent closure, this Contract shall be
terminated by City as described in Section 18. Notwithstanding anything contained
herein to the contrary, any unscheduled closure of the Landfill of more than two (2) days
by City shall result in an equitable reduction in the Guaranteed Annual Tonnage owed by
Contractor if requested in writing by Contractor. In addition, if City closes the Landfill for
more than thirty (30) days during any three (3) month period, Contractor shall be entitled
to terminate this Contract by delivering such termination in writing to the Director of Solid
Waste with a copy to the City Manager. If Contractor chooses to terminate due to such
closure, the obligations of both parties to deliver and to accept Acceptable Solid Waste
shall terminate (including, without limitation, Contractor’s obligation to provide the
Guaranteed Annual Tonnage and the City’s obligation to accept the tonnage at the
Discount Disposal Fee rate).
Compliance with Applicable Laws. This Contract is entered subject to and controlled by
the Charter and ordinances of the City of Denton and all applicable laws, rules, and
regulations of the State of Texas and the United States of America. Contractor and City
shall, during the performance of this Contract, comply with all applicable City codes,
ordinances, and regulations, as amended, and all applicable State and Federal laws, rules,
and regulations, as amended.
Title to Waste. Title to and risk of loss and responsibility for Acceptable Solid Waste
delivered to the Landfill shall pass at the time such Acceptable Solid Waste is removed
from the delivery vehicle at the landfill. Title to Unacceptable Solid Waste shall remain
with Contractor or its customer and shall never be deemed to pass to the City. City shall
have the right to reject Solid Waste determined to be Unacceptable Solid Waste at any
time, and Contractor shall be required to immediately pick up and properly dispose at its
own expense, in accordance with Subsection 11(c) of this contract, Solid Waste
determined by the Director to be Unacceptable Solid Waste.
b.
C.
8.Term. Unless sooner terminated pursuant to Section 17, this Contract shall be for a term of two
(2) years, commencing on October 1, 2022 (the “Contract Start Date") and terminating on
September 30, 2024. Upon termination of this Contract, the obligations of both parties to deliver
and accept Acceptable Solid Waste shall terminate; provided, however, that all other rights and
obligation of the parties under this Contract which by their nature are intended to survive
(including those with respect to payment and indemnification) shall survive termination.
9.Disposal Fees and Payments.
Fees. In consideration of City’s permission of Acceptable Solid Waste under this Contract,
Contractor shall pay thirty-five dollars ($35.00) per ton. Contractor agrees that the
Discount Disposal Fee may be increased on October 1 of each calendar year beginning on
October 1, 2023. The percentage increase will be determined by the Director using the
Consumer Price Index for All Urban Consumers (CPI-U) for the South Region for All Items,
published by the United States Department of Labor, Bureau of Labor Statistics. Any
increase in the Discount Disposal Fee shall not exceed five percent (5%) in any single
calendar year. Any Additional Acceptable Tonnage delivered to the Landfill will be
charged the Non-Denton Resident/Business rate, as established by the Utility Rate
Ordinance, in effect at the time of disposal.
a
b. Payment. Contractor shall pay the Discount Disposal Fee on a monthly basis for
Acceptable Solid Waste delivered to Landfill. The monthly bill shall be paid no later than
thirty (30) days after receipt of a monthly invoice from the Director during the term of the
Contract. If Contractor delivers its Annual Tonnage before the end of the one-year period,
additional Acceptable Solid Waste delivered to the landfill shall be charged the Non-
Resident/Business Gate Rate set by the then current City of Denton Solid Waste Rate
Ordinance.
c. Taxes and Other Charges. In addition to the Discount Disposal Fee, Contractor shall pay
all other federal, state, local, or other taxes, fees, surcharges, or similar charges related
to the acceptance or disposal of Acceptable Solid Waste or related to the operations or
activities of the Landfill that imposed by law, ordinance, regulation, agreement with a
governmental authority, governmental audit, or otherwise.
Security Deposit. Upon execution of this Contract, Contractor shall provide a security
deposit in an amount equal to one-sixth (1/6) of the annual amount under this Contract.
The Director may approve a lesser deposit if Contractor receives an acceptable credit
rating from a credit source available to the City. The cost to obtain the credit rating will
be charged to the Contractor and will not exceed one hundred dollars ($100.(X)). The
security deposit may also be waived or reduced based on recent payment history of the
Contractor. The security deposit may take the form of cash, a performance bond issued
by a corporate suretyorsureties licensed to issue bonds in the State of Texas or otherwise
acceptable to City, or an unconditional, irrevocable standby letter of credit issued by and
drawable at a financial institution located in Denton County, Texas. If other than cash, the
form of the security deposit shall be approved by the Director and approved as to legal
form. For rnulti-year contract, the security deposit will be reviewed annually to reflect an
increase or decrease in the full Disposal Rate, and the amount of the security deposit will
be increased or decreased to reflect the change.
d
e. Remedies in the Event of Default. If Contractor, after thirty (30) days advance written
notice and opportunity to cure from City, fails to make payment of amounts due under
this Contract or breaches any term, condition, or covenant of this Contract, the Director
may exercise any or all of the following remedies, without waiving any other remedies
available to City at law or in equity: (1) suspend delivery of solid waste to the Landfill by
Contractor; (2) terminate this Contract for default as provided in Section 15; or (3) draw
upon the security deposit and require Contractor to furnish a replacement security
deposit as provided in Subsection (d) above, except that the Director may require a
greater amount of security than provided for in Subsection (d) in order to provide City
with adequate assurance of performance by Contractor.
10. Liability and Insurance; Force Majeure.
a.During the term of this Contract, Contractor shall procure, pay for, and maintain at least
the minimum insurance coverages described in Exhibit A, attached to and made part of
this Contact. Approval, disapproval, or failure to act by City regarding any insurance
supplied by Contractor or its subcontractors shall not relieve Contractor of full
responsibility or liability for damages, errors, omissions, or accidents as set forth in this
Contract. The bankruptcY or insolvency of Contractor’s insurer or any denial of liability by
Contractor’s insurer shall not exonerate Contractor from the liability or responsibility of
Contractor set forth in this Contract.
b.No party shall be liable or responsible to the other party, nor be deemed to have
defaulted under or breached this Contract, for any failure or delay in fulfilling or
performing any term of this Contract, except for any obligations to make
payments to the other party hereunder, when and to the extent such party's (the
"Impacted Party") failure or delay is caused by or results from the following force
majeure events ("Force Majeure Events"): (a) acts of God; (b) flood, fire,
earthquake, other potential disasters or catastrophes, such as epidemics,
pandemics, or quarantines, or explosion; (c) war, invasion, hostilities (whether war
is declared or not), terrorist threats or acts, riot, or other civil unrest; (d)
government order, law, or action; (e) embargoes, or blockades in effect on or after
the date of this Contract; and (D national or regional emergency; and (g) strikes,
labor stoppages or slowdowns, or other industrial disturbances; and (h) shortage
of adequate power or transportation facilities; and (i) any other similar events or
circumstances beyond the reasonable control of the Impacted Party. (b) The
Impacted Party shall give notice within 10 days of the Force Majeure Event to the
other party, stating the period of time the Force Majeure Event is expected to
continue. The Impacted Party shall use diligent efforts to end the failure or delay
and ensure the effects of such Force Majeure Event are minimized. The Impacted
Party shall resume the performance of its obligations as soon as reasonably
practicable after the removal of the cause. In the event that the Impacted Party's
failure or delay remains uncured for a period of 30 consecutive days following
written notice given by it under this Section 10, either party/the other party may
thereafter terminate this Contract upon 45 days' written notice.
11. Unacceptable Solid Waste.
a. For the purposes of this Contract, “Unacceptable Solid Waste" means: (i) any material
that is not Acceptable Solid Waste; (ii) any material that by reason of its composition,
characteristics, or quality is defined as a "hazardous waste," “hazardous substance,”
“extremely hazardous waste," “restricted hazardous waste," “toxic substance,” “toxic
waste,” “toxic pollutant," “contaminant,” “pollutant,” “infectious waste,” “medical
waste,“ “radioactive waste," or “sewage sludge” under any Applicable Law; (iii) any
material that requires other than normal handling, storage, management, transfer, or
disposal; or (iv) any other materials that may present a substantial endangerment to
public health or safety, may cause applicable air quality or water effluent standards to be
violated by the normal operation of the Landfill, or because of its size, durability, or
composition cannot be disposed of at the Landfill or has a reasonable possibility of
otherwise adversely affecting the operation or useful life of the Landfill.
Contractor agrees that it shall not deliver any Unacceptable Solid Waste to the City’s
Landfill. If Contractor delivers waste that contains both Acceptable Solid Waste and
Unacceptable Solid Waste, the entire delivery shall constitute Unacceptable Solid Waste
if the Unacceptable Solid Waste cannot be separated from the Acceptable Solid Waste
through the reasonable efforts of City, with the cost of such separation to be paid by
Contractor. City shall have the right, but not the obligation, to inspect any of Contractor’s
trucks to determine whether the waste delivered is Acceptable Solid Waste or
Unacceptable Solid Waste. Any failure by City to perform any such inspection or to detect
Unacceptable Solid Waste despite such inspection shall in no way relieve Contractor from
its obligation to deliver only Acceptable Solid Waste or from its other obligations under
this Section, or to retrieve such Unacceptable Solid Waste as required under Subsection
7(c)
If Contractor delivers Unacceptable Solid Waste to City’s Landfill, City may, in its sole
discretion: (i) reject such Unacceptable Solid Waste at Contractor/s sole expense; or (ii) if
City does not discover such Unacceptable Solid Waste in time to reject and reload such
Unacceptable Solid Waste, inform Contractor by telephone or the problem and require
pickup of the Unacceptable Solid Waste within twenty-four (24) hours, unless the
Unacceptable Solid Waste is deemed by City to be a threat to the health and safety of its
employees or the general public, in which case Contractor shall respond and remove the
Unacceptable Solid Waste immediately. If Contractor fails or refuses to timely remove or
properly dispose of such Unacceptable Solid Waste at a location authorized to accept such
Unacceptable Solid Waste in accordance with all applicable laws, ordinances, and
regulations and to charge Contractor all direct and indirect costs incurred due to the
removing, handling, transporting, and disposing of such Unacceptable Solid Waste.
Notwithstanding the foregoing, no notice to Contractor shall be required for City to
dispose of Unacceptable Solid Waste at the Contractor’s sole expense in emergency
situations where, in the Director’s judgement, a delay in such disposal could constitute a
hazard to the landfill or any person on, about, or near the Landfill premises.
b.
C.
12. Environmental Compliance. Contractor and City shall comply with all federal, state, and local
environmental laws and regulations, including, but not limited to, the Resource Conservation and
Recovery Act (RCRA), the Safe Drinking Water Act (SDWA), the Clean Water Act (CWA), and theClean Air Act (CAA) in their performance under this Contract. Contractor shall ensure that its
agents, subcontractors, and employees have received training or information appropriate to the
environmental aspects and impacts of their activities in connection with performance of this
Contract. Contractor and City shall ensure that any spills or other releases of materials into the
environment that may result from performance under this Contract are responded to and
reported adequately and in compliance with applicable environmental laws.
13. Notices. Except as otherwise provided in Section 14, any notice, payment, statement, or demand
required or permitted to be given under this Contract by either party to the other may be affected
by personal delivery in writing or by mail, postage prepaid. Mailed notices shall be addressed to
the parties at the addresses appearing below, but each party may change its address by written
notice in accordance with this section. Mailed notices shall be deemed communicated as of three
(3) days after mailing.
If intended for City, to:
Brian Boerner
Director of Solid Waste
City of Denton
1527 S. Mayhill Rd.
Denton TX 76208
If intended for Contractor, to:
Joey Highfill
P.O. Box 899
2901 S. FM 51 Bldg. 100
Decatur, Texas 76234
14. Assignment. Contractor shall not sell, assign, transfer, or convey this Contract, in whole or in
part
15. Independent Contractor. Contractor’s status shall be that of an independent contractor and not
an agent, servant, employee, or representative of City in the performance of the Services.
Contractor shall exercise independent judgement in performing its obligations under this
Contract and is solely responsible for setting working hours, scheduling, or prioritizing and
determining how its obligations under this Contract are to be performed. No term or provision
of this Contract or act of Contractor in the performance of this Contract shall be construed as
making Contractor the agent, servant or employee of City, or making Contractor or any of its
employees eligible for the fringe benefits, such as retirement, insurance, and worker’s
compensation, which City provides its employees.
16. Indemnity; Liability.
a. TO THE EXTENT AUTHORIZED BY THE CONSTITUTION AND THE LAWS OF THE STATE OF
TEXAS, CONTRACrOR AGREES TO DEFEND, INDEMNIFY, AND HOLD CITY, ITS OFFICERS,
AGENTS, AND EMPLOYEES, HARMLESS AGAiNSr ANY AND ALL CLAIMS, LAWSUITS,
JUDGEMENTS, COSTS, FINES, PENALTIES, AND EXPENSES FOR PERSONAL INJURY (INCLUDING
DEATH), PROPERTY DAMAGE, VIOLATIONS OF grATE OR FEDERAL ENVIRONMENTAL LAWS OR
REGULATIONS, OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES IS SOUGHT, SUFFERED
BY ANY PERSON OR PERSONS, THAT MAY ARISE OUT OF OR BE OCCASIONED BY
coNTRAcroR’s BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS CONTRACT, OR BY
ANY NEGLIGENT, WRONGFUL, OR STRICILY LIABLE Acr OR OMISSION OF CONTRACrOR, Frs
OFFICERS, AGENTS, EMPLOYEES, OR suBCONTRAcroRS, IN THE PERFORMANCE OF THIS
coNTRAcr; EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT
APPLY TO ANY LIABILITY RESULTING SOLELY FROM NEGLIGENCE, WRONGFUL Acr, OR FAULT
OF CITY, ITS OFFICERS, AGENTS, EMPLOYEES, OR SEPARATE coNTRAcroRS, AND IN THE
EVENT OF JOINT AND CONCURRING NEGLIGENCE OR FAULT OF CONTRACrOR AND CITY,
RESPONSiBiLrrY AND INDEMNITY, IF ANY, SHALL BE APPORTIONED IN ACCORDANCE WITH
THE LAW OF THE grATE OF TEXAS, WITHOUT WAIVING ANY GOVERNMENTAL IMMUNrrY
AVAILABLE TO CITY UNDER TEXAS LAW AND wrrHOUT WAIVING ANY DEFENSES OR THE
PARTIES UNDER TEXAS LAW. THE PROVISIONS OF THIS PARAGRAPH ARE SOLELY FOR THE
BENEFIT OF THE PARTIES TO THIS CONTRACr AND ARE NOT INTENDED TO CREATE OR GRANT
ANY RIGHTS, COMRACrUAL OR OTHERWISE, TO ANY OTHER PERSON OR ENTITY.
b. Wise County agrees to be responsible for the liabilities arising out of Wise County’s conduct,
and the conduct of Mse County’s officers, employeu and agents.
17. Termination. This agreement may be terminated in whole, or in part, by the City or the Contractor
upon thirty (30) days written notice to the other party. In the event of termination, Contractor
shall pay all contract fees for Solid Waste delivered to City's landfill up to and Including the date
of termination.
18. Venue. The obligations of the parties to this Contract shaH be performable in Denton County,
Texas, and if legal action is necessary in connection with or to enforce rights under this Contract,
exclusive venue shall lie in Denton County, Texas.
19. Governing Law. This Contract shall be governed by and construed in accordance with the laws
and court decisions of the State of Texas, without regard to conflict of law or choice of law
principles of Texas or of any other state.
20. Legal Construction. In case any one or more of the provisions contained in this Contract shall for
any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, Illegality,
or unenforceability shall not affect any other provision of this Contract, and this Contract shall be
considered as if such invalid, illegal, or unenforceable provision had never been contained in thisContract
21. Counterparts. This Contract may be executed in any number of counterparts, each of which shall
be deemed an original and constitute one and the same instrument. If this Contract is executed
in counterparts, then it shall become fully executed only as of the execution of the last such
counterpart called for by the terms of this Contract to be executed.
22. Captions. The captions to the various clauses of this Contract are for informational purposes only
and shall not alter the substance of the terms and conditions of this Contract.
23. Successors and Assigns. This Contract shall be binding upon and inure to the benefit of the parties
and their respective successors and, except as otherwise provided in this Contract, their assigns.
24. Entire Agreement: No Oral Modifications. This Contract (with all referenced Exhibits,
attachments, and provisions incorporated by reference) embodies the entire agreement of both
parties, superseding all oral or written previous and contemporary agreements between the
parties relating to matters set forth in this Contract. Except as otherwise provided elsewhere in
this Contract, this Contract cannot be modified without written supplemental agreement
executed by both parties.
25. Non-appropriation. The Contractor's performance and obligation to pay under this Contract is
contingent upon an annual appropriation by the Wise County Commissioners Court. Should the
funds not be appropriated for Contract Year 2023-2024, Contractor may terminate this Contract
with respect to those payments for which such funds are not appropriated. Wise County will give
City thirty (30) days’ written notice of such termination. All obligations of Wise County to make
payments after the termination date will cease.
Executed this the ]Xday of btw&b , 20%by City, signing by and through its City Managerduly authorized to execute same by Ordinance gP, ao 23 approved or! I>cz„da L 204.
CITY OF DENTON, TEXAS bTEXAS
J.D. CLARK, coJNTY JUDGE
aBY
SARA HENSLEY, CITY MANAG
ArrEST:ArrEST:
ROSA RIOS, CITY SECRETARY SHERRY LEMON, COUNTY CLERK
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