City of Rio Grande City, Texas, and Joel Villarreal, Herman R. Garza III, Arcadio J. Salinas III, Rey Ramirez, and Dave Jones in Their Official Capacities v. BFI Waste Services of Texas, LP D/B/A Allied Waste Services of Rio Grande Valley ( 2015 )

Filed: 11/17/2015 4:35:15 PM
Eloy R. Garcia, District Clerk
Starr County, Texas
Ana Martinez
Cause No. DC-15-604
BFI WASTE SERVICES OF TEXAS, LP § IN THE DISTRICT COURT
FILED IN
D/B/A ALLIED WASTE SERVICES OF § 4th COURT OF APPEALS
RIO GRANDE VALLEY, § SAN ANTONIO, TEXAS
Plaintiff § 11/18/2015 10:42:56 AM
§ KEITH E. HOTTLE
v. § Clerk
§
CITY OF RIO GRANDE, TEXAS AND ITS §
ELECTED OFFICIALS IN THEIR OFFICIAL § 229TH JUDICIAL DISTRICT
CAPACITIES, §
§
Defendants, §
§
v. §
§
GRANDE GARBAGE COLLECTION CO., §
Intervenor/Plaintiff. § STARR COUNTY, TEXAS
INTERVENER/PLAINTIFF GRANDE GARBAGE COLLECTION CO. AND
DEFENDANTS CITY OF RIO GRANDE, TEXAS AND ITS ELECTED OFFICIALS IN
THEIR INDIVIDUAL CAPACITIES’ JOINT NOTICE OF INTERLOCUTORY APPEAL
Intervener/Plaintiff Grande Garbage Collection Co.1 and Defendants City of Rio Grande,
Texas and Its Elected Officials in Their Official Capacities2 desire to appeal from the “temporary
injunction order” signed by the Court in the above-referenced matter on November 10, 2015.3
This appeal is taken to the Fourth Court of Appeals at San Antonio, Texas. This is an
accelerated appeal, but it is not a parental termination or child protection case, as defined in
Texas Rule of Appellate Procedure 28.4.
1
Intervener/Plaintiff Grande Garbage Collection Co. intervened in this case while pending in federal court
after removal by Defendants City of Rio Grande City, Texas and Its Elected Officials in Their Official Capacities.
See attached Ex. A, B, C.
2
The Elected Officials of the City of Rio Grande, Texas are Mayor Joel Villarreal, Herman R. Garza III,
Arcadio Salinas III, Rey Ramirez, and Dave Jones, and they join in this appeal.
3
See attached Ex. D; TEX. CIV. PRAC. & REM. CODE § 51.014(a)(4); TEX. R. APP. P. 26.1(b).
INTERVENER/PLAINTIFF GRANDE GARBAGE COLLECTION CO. AND DEFENDANTS CITY OF RIO 1
GRANDE, TEXAS AND ITS ELECTED OFFICIALS IN THEIR INDIVIDUAL CAPACITIES’ JOINT NOTICE
OF INTERLOCUTORY APPEAL
Respectfully submitted,
/s/ Brandy Wingate Voss
Brandy Wingate Voss
State Bar No. 24037046
Smith Law Group LLLP
820 E. Hackberry Ave.
McAllen, TX 78501
(956) 683-6330
(956) 225-0406 (fax)
brandy@appealsplus.com
Appellate Counsel for Intervener/Plaintiff
Grande Garbage Collection Co.
Eloy R. Garcia, Jr.
Law Office of Eloy R. Garcia, Jr.
State Bar No. 24043671
118 E. Cano
Edinburg, Texas 78539
(956) 287-0416
(956) 287-3716 (fax)
eloygarciajr@gmail.com
Trial Counsel for Intervener/Plaintiff Grande
Garbage Collection Co.
/s/ Jacqueline Lefevre Salinas with permission
by Brandy Wingate Voss
Jacqueline Lefevre Salinas
State Bar No. 24027947
Salinas Law Firm
507 N. Briton Ave.
Rio Grande City, Texas 78582
(956) 488-1000
(956) 317-1269 (fax)
salinaslawfirm@gmail.com
Counsel for Defendants City of Rio Grande
City, Texas And Its Elected Officials in Their
Official Capacities
INTERVENER/PLAINTIFF GRANDE GARBAGE COLLECTION CO. AND DEFENDANTS CITY OF RIO 2
GRANDE, TEXAS AND ITS ELECTED OFFICIALS IN THEIR INDIVIDUAL CAPACITIES’ JOINT NOTICE
OF INTERLOCUTORY APPEAL
Antonio Martinez
State Bar No. 13139000
Martinez, Barrera, y Martinez L.L.P.
1206 E. Van Buren St.
Brownsville, Texas 78520
(956) 546-7159
(956) 544-0602 (fax)
Tony@mbymlaw.com
Counsel for Defendants City of Rio Grande
City, Texas And Its Elected Officials in Their
Official Capacities
CERTIFICATE OF SERVICE
By my signature above, I certify that on the 17th day of November 2015, a true and
correct copy of the foregoing document was served on the following parties by electronic mail
and/or facsimile as follows:
John David Franz
Law Office of John David Franz
400 N. McColl Rd. Ste. B
McAllen, Texas 78501
(956) 686-3578 (fax)
jdf@johndavidfranz.com
Counsel for Plaintiff BFI Waste Services of Texas, LP, d/b/a
Allied Waste Services of Rio Grande Valley
Gilberto Hinojosa
Hinojosa Law Firm
622 E. St. Charles
Brownsville, Texas 78520
ghinojosa@ghinojosalaw.net
(956) 544-1335 (fax)
Counsel for Plaintiff BFI Waste Services of Texas, LP, d/b/a
Allied Waste Services of Rio Grande Valley
/s/ Brandy Wingate Voss
Brandy Wingate Voss
INTERVENER/PLAINTIFF GRANDE GARBAGE COLLECTION CO. AND DEFENDANTS CITY OF RIO 3
GRANDE, TEXAS AND ITS ELECTED OFFICIALS IN THEIR INDIVIDUAL CAPACITIES’ JOINT NOTICE
OF INTERLOCUTORY APPEAL
EXHIBIT A
INTERVENER/PLAINTIFF GRANDE GARBAGE COLLECTION CO. AND DEFENDANTS CITY OF
RIO GRANDE, TEXAS AND ITS ELECTED OFFICIALS IN THEIR INDIVIDUAL CAPACITIES’
JOINT NOTICE OF INTERLOCUTORY APPEAL EXHIBIT A
Case 7:15-cv-00459 Document 1 Filed in TXSD on 10/31/15 Page 1of8
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION
BFI WASTE SERVICES OF TEXAS, §
LP, D/B/A ALLIED WASTE §
SERVICES OF RIO GRANDE §
VALLEY. §
Plaintiff §
§
vs. § CASE NO. 7:15-cv-459
§
CITY OF RIO GRANDE CITY, TEXAS §
AND IT'S ELECTED OFFICIALS IN §
THEIR OFFICIAL CAPACITIES §
Defendants/Counter Plaintiffs §
ORIGINAL PETITION IN INTERVENTION
TO THE HONORABLE JUDGE OF SAID COURT:
Pursuant to Rule 24 of the Federal Rules of Civil Procedure and Rule 60 of the Texas Rules of Civil
Procedure, NOW COMES Grande Garbage Collection Company, hereinafter called Intervenor, and files
this Original Petition in Intervention and in support hereof, shows the Court the following:
I. PARTIES
1. Intervenor GRANDE GARBAGE COLLECTION COMPANY ("GRANDE GARBAGE") is a Texas
corporation with its principal office located at 505 E. Main St., Rio Grande City, Starr County, Texas.
2. Plaintiff/Counter Defendant BFI WASTE SERVICES OF TEXAS, LP, D/B/A ALLIED WASTE
SERVICES OF RIO GRANDE VALLEY ("ALLIED WASTE") a Delaware Limited Partnership, with its principal
place of business and headquarters in Phoenix, Arizona, may be served with process at 18500 North
Allied Way, Phoenix, Arizona 85054.
Case 7:15-cv-00459 Document 1 Filed in TXSD on 10/31/15 Page 2 of 8
3. Defendant/Counter Plaintiff CITY OF RIO GRANDE, TEXAS and its Mayor Joel Villarreal,
Mayor Pro-Tern Hernan R. Garza Ill, Arcadio Salinas Ill, Rey Ramirez and Dave Jones ("CITY") is a home
rule formed under the laws of and incorporated in the state of Texas. All may be served at 5332
II. ORIGINAL LAWSUIT
4. Allied Waste initiated this action for the purpose of seeking declaratory judgment,
injunctive relief and damages. The City has asserted a general denial and affirmative defenses along
with a counterclaim for breach of contract, etc., against Allied Waste.
Ill. VENUE AND JURISDICTION
5. This Court has subject matter jurisdiction and diversity jurisdiction over this case
because the amount in controversy exceeds the minimum jurisdictional requirements and diversity
exists between the parties.
IV. FACTUAL ALLEGATIONS
6. On September 9, 2015, the City Council of Rio Grande City, Texas ("City") at a duly called
meeting of the council voted to terminate the services of Allied Waste effective 30 days from the day of
this vote. The City also approved the City Administration to negotiate a contract with a third party solid
waste provider. A true and correct copy of the City agenda and the Minutes for the City meeting are
attached as "Exhibit A and Exhibit B."
7. After the September 9, 2015 Council vote, negotiations between the City Manager and
Grande Garbage began. On September 14, 2015, Allied Waste was notified and had actual knowledge
that their contract with the City was terminated and to cease operations on October 9, 2015. On
September 18, 2015, Allied Waste sent Grande Garbage a "Notice to Cease and Desist Solid Waste
Collection In Violation of Exclusive License possessed by Allied Waste." A copy of this notice is attached
as "Exhibit c." Grande Garbage did not respond to Allied Waste's Notice. Grande Garbage at the time
of the notice and to this day, provides solid waste collection services to the County of Starr and to the
Rio Grande City CISD under Grande Garbage's own exclusive franchise collection contract. Collection for
those entities takes place within and outside of the corporate city limits of Rio Grande City. A true and
correct copy of the contract between Grande Garbage and Rio Grande City CISD is attached as "Exhibit
D."
8. On September 28, 2015, the City Council held a meeting in which the discussion and
possible action to approve an agreement with Grande Garbage for solid waste services was on the
agenda. A true and correct copy of the City agenda is attached as "Exhibit E.11 The City approved the
Case 7:15-cv-00459 Document 1 Filed in TXSD on 10/31/15 Page 3 of 8
awarding of the solid waste collection and disposal service contract to Grande Garbage. A true and
correct copy of the City minutes is attached as "Exhibit F. n The Contract for Solid Waste Collection and
Disposal Service ("Contract") was entered lnto and executed by all parties on September 28, 2015. The
effective date for services to begin was on October 10, 2015. A true and correct copy of the Contract Is
attached as "Exhibit G."
9. On October 8, 2015, Allied Waste instituted a lawsuit against the City for declaratory
judgment, injunctive relief and damages ("Lawsuit"). A copy of the Lawsuit is attached as "Exhibit H." In
the Lawsuit, Allled Waste applied for and was granted a Temporary Restraining Order("TRO") that
allowed Allied Waste to continue operating and usurped Grande Garbage's ability to perform under Its
contract with the City. The City filed its answer and counter claim against Allied Waste for breach of
contract, fraud and other causes of action. A copy of the City's Original Answer and Counterclaim is
attached as "Exhibit I."
10. On October 22, 2015, a hearing on the TRO was held in the 229th District Court. During
this hearing, counsel for Allied Waste Introduced as Exhibit 19 a misleading, false, and potentially
fraudulent City Agenda ('FALSE AGENDA") that omitted section 3 of "Exhibit E" entitled City Manager's
Report. A copy of the FALSE AGENDA is attached as "Exhibit J."
11. At the end of the hearing on October 22, 2015, the court extended the TRO. The
proceedings were terminated in favor of Allied Waste and once again stopping Grande Garbage from
being able to perform under their contract which was in effect on October 10, 2015
12. On October 31, 2015, the City filed their Notice of Removal to Federal Court.
V. INTERVENOR'S INTEREST IN THIS ACTION
13. Intervenor has a justiciable interest in the matters in controversy In this litigation in that
Allied Waste seeks to have the Contract between Grande Garbage and the City declared void and to
assert its own contract valid, even though it has been terminated. Allied Waste's actions to this point
have interfered with Grande Garbage's Contract with the City.
14. A party holds a justiciable Interest in a lawsuit when her Interests will be affected by the
litigation. In Re Union Carbide Corp., 273 S.W.3d 152, 155 (Texas 2008); Law Office of Windle Turley, P.C.
v. Ghlaslnefad, 109 S.W.3d 68, 70 {Tex. App.-Fort Worth 2003, no pet.). A party may Intervene In a suit
if she could have brought all or part of the same suit In her own name. In Re Union Carbide Corp., 273
S.W.3d at 155; Guar. Fed. Sav. Bank v. Horseshoe Operating Co, 793 S.W.2d 652, 657 (Tex.1990); E & B
Carpet Mills v. State, 776 S.W.3d 286, 290 (Tex. App.-Austln 1989, writ dism'd).
15. Intervention will not complicate the case by excessively multiplying the issues
underlying this suit.
Case 7:15-cv-00459 Document 1 Filed in TXSD on 10/31/15 Page 4 of 8
16. Intervenor's Intervention in this action is essential to effectively protect the Intervenor's
interest, as their claims involve the same facts and allegations as set forth by the City.
V. CAUSES OF ACTION
a. FIRST CAUSE OF ACTION: VIOLATION OF CONTRACT CLAUSE-U.S.
15. The actions of Allied Waste as set forth above substantially Impair the contractual rights
of Grande Garbage to be the exclusive provider of solid waste and disposal services in the corporate
limits of the City.
16. The actions of Allied Waste do not advance a legitimate public goal, much less a
significant and legitimate public goal.
17. Even If the actions of Allied Waste were to advance a legitimate public goal, its actions
were neither reasonable nor necessary to advance such a goal.
18. Therefore, Allied Waste's actions violate the "Contract Clause" of the United States
Constitution, Article 1, Section 10.
b. SECOND CAUSE OF ACTION: VIOLATION OF CONTRACT CLAUSE-TEXAS
19. The actions of Allied Waste are specifically directed at and directly repudiate Grande
Garbage's contractual rights to provide exclusive solid waste and disposal services in the corporate limits
of the City.
20. The actions of Allied Waste do not represent an exercise of the police powers.
21. Therefore, Allied Waste's actions violate the "Contract Clause" of the Texas
Constitution, Article 1, Sections 16 and 29.
c. THIRD CAUSE OF ACTION: VIOLATION OF DUE COURSE OF LAW CLAUSE-TEXAS
22. The actions by Allied Waste Improperly impair Grande Garbage's vested rights under the
Contract between the City and Grande Garbage.
23. The "due course of law" clause of the Texas Constitution prevents any person, entity, or
city from depriving a citizen of the state of vested rights unless its acts according to its police powers
and by due course of law.
24. Allied Waste's actions do not represent an exercise of the police powers. Because Allied
Waste's actions will impair Grande Garbage's vested rights under the contract between the City and
Grande Garbage, Allied Waste's actions violate the "due course of law" clause of the Texas Constitution,
Article 1, Section 19.
d. FOURTH CAUSE OF ACTION: VIOLATION OF THE 14™ AMENDMENT-U.S.
Case 7:15-cv-00459 Document 1 Filed in TXSD on 10/31/15 Page 5 of a
25. Allied Waste's action will deprive Grande Garbage of its vested right under the Contract.
26. Allied Waste did not afford Grande Garbage any due process of law before taking the
actions which will deprive Grande Garbage of its vested rights.
27. Allied Waste's actions are not an exercise of its police power.
28. The Due Process Clause, U.S. Const. Amend. 14, protects citizens from being subject to
actions by Allied Waste which Allied Waste does not have the power to take.
29. Allied Waste's actions will deprive Grande Garbage of those rights without due process
of law in violation of U.S. Const. Amend. 14. Section 1.
e. FIFTH CAUSE OF ACTION: TORTIOUS INTERFERENCE WITH A CONTRACT
30. On September 28, 2015, the City and Grande Garbage entered into a contractual
agreement, as set forth in "Exhibit G," that gave Grande Garbage the exclusive right to perform all solid
waste collection and disposal services throughout the city limits of Rio Grande City.
31. Allied Waste was given notice on September 14, 2015 that its own contract was
terminated and service to the City was ending on October 9, 2015. Allied Waste was on notice that
Grande Garbage was awarded the new contract to be the sole provider of solid waste collection and
disposal services in the City. Additionally, Allied Waste had knowledge of the fact and was aware of
circumstances that Grande Garbage was commencing to begin service on October 10, 2015.
32. Allied Waste willfully and intentionally brought forth its Lawsuit along with the TRO on
October 8, 2015 solely to cause damage to Grande Garbage in their lawful business. Allied Waste had
substantial time to assert its claims prior to the commencement of Grande Garbage's contract. Allied
Waste failed to assert Its claims in a timely manner and did so with the intent to damage Grande
Garbage, knowing that such action would interfere and disrupt Grande Garbage from operating under
the Contract. Allied Waste's actions were the proximate cause of harm to Grande Garbage.
33. Allied Waste's actions at the October 22, 2015 TRO hearing, where a misleading and
potentially fraudulent document was Introduced as an exhibit constitute malicious and fraudulent
intentions on the part of Allied Waste. The intent to introduce such a document with the purpose to
void Grande Garbage's Contract would deprive Grande Garbage of its vested right to be the exclusive
provider of solid waste collection and disposal services In the City.
VI. DAMAGES
34. As a result of Allied Waste's actions, Intervenor has suffered loss and actual damages
and seeks unliquidated damages within excess of the jurisdictional limits of this court.
VII. EXEMPLARY DAMAGES
Case 7:15-cv-00459 Document 1 Filed in TXSD on 10/31/15 Page 6 of 8
35. Intervenor, Grande Garbage's injury resulted from Allied Waste's malice and actual
fraud which entitles Grande Garbage to exemplary damages under Texas Civil Practice and Remedies
Code Section 41.003(a).
VIII. ATTORNEY'S FEES
36. Intervenor, Grande Garbage is entitled to and requests judgment against Allied Waste
for Grande Garbage's reasonable and necessary attorney's fees incurred in bringing and prosecuting this
action. Grande Garbage Is entitled to attorney's fees pursuant to the Texas Civil Practice and Remedies
Code Section 38.000 et. seq.
IX. JURY DEMAND
37. Grande Garbage hereby requests a trial by jury.
X. PRAYER
WHEREFORE PREMISES CONSIDERED, Intervenor Grande Garbage prays the Court order the following
relief:
1. Judgment against Allied waste for an amount within the jurisdiction of the court.
2. Judgment against Allied Waste for exemplary damages as determined by the trier of
fact, together with interest at the highest allowed by law per year from the date of the judgment until
paid.
3. All reasonable attorney's fees in bringing this action.
4. Award Grande Garbage Its reasonable costs In bringing this action.
5. Costs of the court and pre-judgment and post-Judgment interest allowed by law.
6. Provide for such other and further relief at law and in equity to which Grande Garbage
may be justly entitled.
Respectfully submitted,
LAW OFFICE OF ELOY R. GARCIA, JR.
118 E. Cano
Edinburg, Texas 78539
Phone: (956)287-0416
Facsimile: (956) 287-3716
Email: eloygarciajr@gmail.com
Case 7:15-cv-00459 Document 1 Filed in TXSD on 10/31/15 Page 7 of a
Federal Bar No. 847118
ATTORNEY FOR INTERVENOR
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served electronically and through facsimile
on this 31st day of October, 2015 to the following:
Salinas Law Firm
507 N. Briton Ave
Rio Grande City, Texas 78582
Office: (956) 488-1000
Fax: (956) 317-1269
Email: salinaslawfirm@gmail.com
Attorney for Rio Grande City
Law Office of John David Franz
400 N. McColl Rd.
Ste. B
McAllen, Texas 78501
Office: (956) 686-3300
Fax: (956) 686-3578
Email: jdf@johndavidfranz.com
Attorney for Allied Waste
Case 7:15-cv-00459 Document 1 Filed in TXSD on 10/31/15 Page 8 of a
THE SfATE OF TEXAS §
§
COUNTY OF STARR §
VERIFICATION
BEFORE ME, the undersigned authority, on this day personally appeared PATRICIO Hernandez,
who swore upon his oath that the followins facts are true and correct:
"My name is PATRICIO HERNANDEZ. I am the Plaintiff in the above styled and numbered cause."
"I hereby verify that I have read the foregoing PLAINTIFF'S ORIGNAL PETITION and that the facts
set forth in said Petition are true and correct.
BY: /~~~- T"""{- - -
Pa!riclo Hern'andez
SWORN AND SUBSCRIBED TO BEFORE ME by the said PATRICIO HERNANDEZ, on this
the 31 day of October, 2015.
NANCY L GAR2A
,.., l\Qtc
nATE OF 1EXAS
My Carrrn. &o. .kn. %2. 2019
Case 7:15-cv-00459 Document 1-1 Filed in TXSD on 10/31/15 Page 1of 4
RIO GRANDE CITY
STATE OF TEXAS *
* CERTIFICATE OF PUBLIC RECORD
COUNTY OF STARR *
I, Holly D. Guerrero, hereby certify, in the performance of the functions of
my office, that the following is a true and correct copy of the agenda
posted for the Rio Grande City Commission Meeting held on September 9,
2015 and the same appears of record in my office; and that sa id copy is an
official record from the public office of the City Secretary of Rio Grande
City, Starr County, Texas , and is kept in said office.
In witness whereof I have hereunto set my hand and affixed the official seal
of said office this 28th day of October, 2015.
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Holly o ; Guerrero
City se cz:e~
City Hall at 5332 E. U.S. Higl1way 83 / mo Grande City, lcxas 78582
956-487-0672 / Fax 956-7 16-8899
vvww.ci tyofrgc.com
Case 7:15-cv-00459 Document 1-1 Filed in. TXSD on i0/31/15 Page·2.of fl .......
. :.lly D. Guerrero - TML Annual Conference - San Antonio -
September 22-25
Case 7:15-cv-00459 Document 1-2 Filed in TXS D on 10/31/15 Page !~~~Si10N
9-9-2015
ii
JU O G R A N DE CITY
ECON OM I C DEV E L O P l'vl ENT C OH l' O ll AT I ON
M E MORANDU M
" " H i i 001. S'UUW
T O: CITY COUNC ii . Ml·:M131·:1lS
FllOM: D1\LINDt\ ClJJl.l.EN. Jl(;(:Jo:J)C l~XECU TIVE DllU~CTOlt
SU BJ ECT: SU/\ll\11\RY OF ,\ CTIONS T.\1-:I~:\ t\T RGCEDC: BOARIJ .\11-:E I INt, 01' SEJYJ'E/\IBER I, 2015
DATE: S l ~JY f'l·:/\11\l ·:R 9, WIS
C l.: l·:l.ISt\ HEi\S, HCC DF.l'l JTY CITY fll :\Nt\GER
During the regulai: m ceLing of the Rio Grande City Economic Development Corporation on
SC'p tember 1, 20·1s, the bo:ird took the act ions summarized below.
1. i\c1jon: i'\pprovcd 111.inULcs from previous Rio Gra ndt.: City f·:DC meetings.
2. Action: Approved ratifying the existing Rio Grande City EDC bylaws with a condition
LO regain Lhe ~pirit of rhe bylaws and have a staggered board, by having Lori Perez, Rey
Ramirez, and Dave .Jones serving an initial 1->•ear term. i\frer th:u, they may bc
reappoimcd every 2 years.
3. Action: r\pprovcd EDC grant and committee guidelines. Co111miLLee will have its first
meeting on Friday, Sept. 11, 2015.
·l05 E. MmASOl.l:S ST. RIO GRA>IDE CITY, TEXAS 78582 (956) 487-3·176
Case 7:15-cv-00459 Document 1-2 Filed in TXSD on 10/31/15 Page 12 of 35
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DISANNEXATION EXHIBIT 1tg~I! II" rn nii :T [ ~ RIO DELTA ENGINEERING
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RIO GRANDE CITY, TEXAS
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9-8-2015
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TO:
INTEROFFICE MEMORANDUM
Mayor, Mayor Pro-Temp and Commissioners
I
FROM: Gilbert Millan, Planning Directo~/
CC: Elisa Beas, Deputy City Administrator
SUBJECT: Final Plat Approval of Laredo Estates Phase 1
DATE: September 4, 2015
OVERVIEW: Cayetano Interests LLC represented by Rio Delta Engineering is requesting
Preliminary Approval for Laredo Estates Subdivision Phase 1, being 26.86 acres situated out of Share
5-E and Share 5-F, in Porcion No. 82 Ancient Jurisdiction of Camargo, Mexico, and now Starr County,
Texas.
The area is divided into thirty-nine (39) lots averaging .50 acres each. The proposed development is
within the 1 mile ETJ.
Sewer: The owner is proposing to service the area with septic tanks (OSSF)
Water: The area is within the CCN of El Tanque WS. The owner is proposing to service the area
with an 8" water line.
Drainage: Drainage will be provided on-site.
CONDITIONS:
1. Park fee as required by the City's adopted park fee ordinance shall be provided at the time of
building construction or at the time a letter of compliance is issued by the City.
2. Water rights shall be provided to the City in the appropriate amount; one (1) acre of Municipal
Water for each acre of land developed, or $2,500 per acre of land developed.
3. Development/construction shall comply with all of the require~ents of Chapter 13 Subdivision
Regulations.
4. Must confirm with all the requirements previously approved at preliminary stage including but
not limited to annexation.
*****This item was approved by the Planning and Zoning Commission in their
regular meeting agenda of September 3, 2015*****
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Case 7:15-cv-00459 Document 1-2 Filed in TXSD on 10/31/15 Page 23 of 35
Case 7:15-cv-00459 Document 1-2 Filed in TXSD on 10/31/15 Page 24 of 35
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Case 7:15-cv-00459 Document 1-2 Filed in TXSD on 10/31/15 Page 28 of 35
r\eLDen &nunr inc
CO NSULTANTS 6 ENGINEERS SURV EYORS
FRED l. KURTH • ALLAN F. BOOE • KELLEY A. HELLER·VELA • AOBERTTAMEZ
TOPE Firm# F-1435
TBPLS ii 10096900
Mr. Gilbert Millan August 28, 2015
Plann ing Direct or - City of Ri o Grande Cit y
5332 E. Highway 83
Rio Grande City, Texas 78582
RE: Divino Descanso Subdivision
Dea r M r. Millan:
We have re ceived and reviewed the Plat Hequirement Checklist and have responded and/or corrected
each item as needed. Attached is all the information required as request ed.
In regards to Items:
Plat :
2. Utility and Drainage easem ents have been (flipped)/adjusted as requested and drainage
considerations have been revised.
3. Note 1111 has been revised.
4. Note 1113 has been added to include the fire hyd rant sta temen t.
Utiliti es:
2. The nearest fi re hydra nt is shown across Eise nhower Rd. All others are distant fro m t his
deve lopment. See Note 114 in "Plat" above.
3. /\ sanitary sewer service has been proposed al th e so uthwest corner of the
development.
Drainage:
1. See Note 114 in "Pla t" above. A 15" PVC pipe wi th a headwa ll has been proposed to
connect the proposed drainage swa le to the existing inlet along Old El Sa uz Road.
Shou ld you have any ques tions, please do not hesitate to call me.
Sincerely,
115 W. MclNTYRE EDINBURG, TX 78541 OFF: (956) 381 ·098 1 FAX: (956) 381· 1839 www. meldenandhunt.com
227 N. FM 3167 RIO GRANDE CITY. TX 78582 OFF: (956) 487-8256 FAX: (956) 488-859 1
Case 7:15-cv-00459 Document 1-2 Filed in TXSD on 10/31/15 Page 29 of 35
/\
R
CIVIL ENGINEERING• PROJECT MANAGEMENT• LAND DEVELOPMENT
TEXAS REGISTERED ENGINEERING FIRM F-7628
L
ENGINEERING TEXAS LICENSED SURVEYING FIRM #10194027
August 26, 2015
Mr. Gilbert Milan
Planning Dept.
Rio Grande City
101 S. Washington
· Rio Grande City, Texas 78582
Re Divino Descanso Subdivision
Melden and Hunt
Dear Mr. Milan,
After reviewing the submitted plans for the above-named subdivision we have the following
comments and observations for your consideration:
SubdivisiQn
Plat:
1. This commercial development lies within the Cotporate limits of the City of Rio
Grande City and is subject to their subdivision regulations and requirements.
2. The drainage easement and the utility easement need to be "flipped'' so that the
drainage easement is along the southern boundary of the lot.
3. Note #11 may need to be modified to remove "drainage report and" from the note.
4. A note needs to be added stating that additional fire hydrants may be required upon
site plan review.
Utilities:
1. This development will be provided potable water service and sanitary sewer service
by the City. A site utility layout will be required at time of building permit and site
plan review along with a full set of construction plans for the site development.
2. The plat utility plan needs to indicate the location of the nearest existing fire hydrants
in all directions.
3. The plat utility plans needs to indicate if the proposed sanitary sewer service will be
installed now, or at time of site development.
Drainage:
1. As noted on the Plat comments, the drainage easement needs to be located along the
boundary of the lot. The proposed swale should be "bled" off into the existing storm
inlet along the west side of Old El Sauz. The bleeder line can be PVC, at least 12'
dia., no more that 1S" dia., and will require a headwall at the swale.
Case 7:15-cv-00459 Document 1-2 Filed in TXSD on 10/31/15 Page 30 of 35
All of these comments can be addressed prior to the pre-construction meeting. Please accept my
recommendation for Preliminary Plat Approval.
Please call me at (956) 380-5152 if you have any questions regarding any of the above.
Thank You,
p
Gilbert J. Guerra, P.B.
Case 7:15-cv-00459 Document 1-2 Filed in TXSD on 10/31/15 P~lLs~5
8-9-2015
ITO:
INTEROFFICE MEMORANDUM
Mayor, Mayor Pro-Temp and Commissioners
FROM: Gilbert Millan, Planning Director,h
CC: Elisa Y Beas, Deputy City Administrator
SUBJECT: Preliminary and Final Plat Approval for Jesus Garcia Commercial Subdivision
DATE: September 4, 2015
OVERVIEW: Jesus and Patricia Garcia represented by MAS Engineering are requesting
Preliminary and Final Approval for Jesus Garcia Commercial Subdivision. Being a 0.717 Acres out of
Share 75, Porcion 82, Ancient jurisdiction of Camargo, Mexico now Starr County, Texas.
The area is to be divided into one commercial (1) lot. The proposed development is located along Highway
83 next to the Guns Unlimited Store.
Sewer: The owner is proposing to service the area with Sanitary Sewer.
· Water: The area is within the CCN of Rio Grande City. The owner is proposing to seivice the area
with an 8" water line.
Drainage: Drainage will be provided on-site.
The following conditions are addressed:
1. Park fee as required by the City's adopted park fee ordinance shall be provided at the time of
building construction or at the time a letter of compliance is issued by the City.
2. Development/construction shall comply with a.II of the requirements of Chapter 13 Subdivision
Regulations.
3. A preconstruction conference will be required before any subdivision construction is started.
4. Provide a street lighting plan prior to subdivision construction.
5. Provide complete drainage report.
6. Further review and corrections maybe required from staff whether stated here or not
*****This item was approved by the Planning and Zoning Commission in their
regular meeting agenda of September 3, 2015*****
Case 7:15-cv-00459 Document 1-2 Filed in TXSD on 10/31/15 Page 32 of 35
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Case 7:15-cv-00459 Document 1-2 Filed in TXSD on 10/31/15 Page 33 of 35
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Case 7:15-cv-00459 Document 1-2 Filed in TXSD on 10/31/15 Page 34 of 35
' .
.,
ruo DELTA ENGINEERING
CIVIL ENGINEERING • PROJECT MANAGEMENT • LAND DEVELOPMENT
TEXAS REGISTERED ENGINEERING FIRM F-7628
TEXAS LICENSED SURVEYING FIRM #10194027
August 11, 2015
Mr. Gilbert Milan
Planning Dept.
Rio Grande City
I 01 S. Washington
Rio Grande City, Texas 78582
Re: Jesus Garcia Commercial Subdivision
MAS Engineering, LLC
Dear Mr. Milan,
After reviewing the ·submitted plans for the above-named subdivision we have the following
comments and observations for your consideration:
Subdivision:
Plat:
1. This commercial development lies within the Corporate limits of the City of Rio
Grande City and is subject to their subdivision regulations and requirements.
2. A 20 foot Front Setback line needs to be indicated on the plat
3. Note #3 needs to be corrected to read: "10 feet, easement width if greater, or as the
City may require at time of building pennit and site review." frttaN ~~"-)
4. Add a note stating that: " A TxDOT permit authorizing the improvement of the
existing drive will be required at the time of building permit and site plan review."
5. Add a note stating: " The site developer may be required to provide additional
municipal water rights or the appropriate fees for the acquisition of additional
municipal water rights, based on projected building occupancy at full development, at
the time of building permit and site plan review."
6. The engineer submitted a drainage report and statement but did not include the
calculations. Please have him re-submit the report with the calculations, or provide
the calculations.
Utilities:
1. This development will be provided potable water service by the City via an existing
8" water line. The existing water meter needs to be indicated on the Plat.
2. This development will be provided sanitary sewer service by the City via an existing
8" sanitary sewer line that runs along the front of the property. The sewer service will
be provided at the time of site development.
Case 7:15-cv-00459 Document 1-2 Filed in TXSD on 10/31/15 Page 35 of 35
Preliminary Site Plan:
1. The proposed site plan will need to be adjusted to accommodate the 20 foot front
setback.
2. The proposed site plan will need to be adjusted to ensure that there is a minimum 24'
aisle between parking spaces.
3. The proposed site plan will need to be adjusted in order to accommodate the location
of the detention area someplace other than in the utility easement and over the sewer
and water lines.
4. The proposed site plan needs to be adjusted to include a dumpster location accessible
by the local trash collection service.
5. The proposed fire hydrant shall be Mueller.
6. The site developer will need to construct a 6" concrete sidewalk along HWY 83, the
full width of the property, and include ramps and warning strips at the proposed
entrance as required to meet ADA requirements.
7. The site developer will need to provide the City with a copy of a TxDOT permit
authorizing the improvement to the existing drive and the connection of the detention
bleeder line to the TxDOT drainage system.
8. The site developer will need to provide a full set of construction drawings, signed and
sealed by the appropriate Engineer and/or Architect, as may be required, to include;
site grading plan, site dimension plan, site utility plan, site lighting plan, structural,
mechanical, electrical, plumbing plans, a revised drainage report if necessary, and
the appropriate standard construction details.
9. The site developer will need to coordinate with the Planning Dept. and Code
Enforcement in order to determine the correct number of parking spaces required,
based on projected type of businesses which will occupy the proposed spaces, and the
number of occupants projected to be on-site at any given time.
Please call me at (956) 380-5152 if you have any questions regarding any of the above.
;22;9~~
Gilbert J. Guerra, P .E.
Case 7:15-cv-00459 Document 1-3 Filed in TXSD on 10/31/15 Page 1of2
03118/2015 14:46 9566863578 JCJiU DAVID FRAMZ PAGE 02/20
LAW OFFICES OF
JOHN DAVID FRANZ
400 N. McCOU.. SUITE B
McALU!N, TX 78501
BOAAD CERTIFIED
Pl!ASONAL INJURY TRIAL LAW
TEXAS BOARD Oil' L&GAL SPECIALIZATION
September 18, 201 S
Patricio Hernandez.
Grande Garbage Collecdon Co •• L.L.C. CMRRR 7008 1140 OGOl 8027 3038
SOS B. Main St. & Fax (9.56) 488-1 SOS
Rio Grande City, Texas 78582-4546
Grande Garbage Collection Co., L.LC. CMRRR 7008 1140 0002 8027 3045
SOS E. Main St.
Rio Grande City. Texas 78582-4546
RE: Notice to Cease and Desist Solid Waste Collection in
Violation of Exclusive License possessed by Allied Waste
Dear Mr. Hernandez:
Please be advised that I repre$ent Allied Waste Services of Rio Grande Valley
("Allied''). On February 6t 2013, Allied Waste entered into a an "exclusive'' contract to
collect and dispose of rcsidentialt commercial, industrial, consrructlon. demolition and
brush/bulky solid waste in the corporate limits of the City of Rio Grande. The exclusive
contract tenninates on September 30, 2018. A copy of the col\tract ~~ al\ached as Exhibit
I. The contract contains very specific language regarding Allied Waste's exclusive right
to provide collection and disposal services in the City of Rio Grande during the contract
term. Specifically. Section 14.00 on Page 12 of the contract contains the following:
14.00 EXCLUSIJ.'E CO.'VTR.A.CT
1'he .Contractor /Allied/ 1l1a/I have the sole and exclusive franchise, license, and
prMleRe to provide brusMJr1lky waste, residential commtrcia4 ind"strial and
construction/demolitinn refuse collection, removal and disposal .tervle~ 19/thin
the corporate lhnits ofthe Cit_p.
. Jon Deicta, Allied"s General Manager in the Rfo Grande Valley:- has advised me
that Grande Oarbage Collection Co., LLC ("Grande.,) has been providing solid waste
collection containers to locations within the coJ'l)Orate limits ofR.io Grande City and
further that Grande is collecting solid waste within the corporate limits of the Chy.
Allied hereby places you and Orandc Garbage on notic:e that this action violates the
exclusivity provision found in Section 14 of Allied's existing and enforceable contract
with the City of Rio Grande. You are not authorized to provide any type of solid waste
6873-28.0rande Oarbage (Notice to C.ea."e and Desist 9. 18.15).doc
......----------·-· ···-· .............
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Case 7:15-cv-00459 Document 1-3 Filed in TXSD on 10/31/15 Page 2 of 2
09/18/2015 14:46 9566S&3G78 JCH~ I•AVID FPJ.U-~ PAGE 03/20
collection services in IUo Grande Ci.ty as the City has granted that exclusive right to
A11ied Waste through September 30, 2018. As such, demand is hereby made that you.
Grande Garbage's repre$etllatives, agents and employees cease and desist from any
actiCln that violates Al!ied's e: basis. The total proposal as a whole.
including all items listed. providing the best value to the district, will be recommended for
approval.
3. INSURANCE: Workman's compensation is required for this proposal Insurance Certificate.~
must be submitted witb the proposal. The Rio Grande City C.l.S.D. reserves the right to 'review
all insurance policies pertaining. to the proposal item(s) to guarantee that the proper coverage is
obtained by the controctor.
Contractor will be required to maintain in full force :md in cffoct the folJowing 1ypes of insurance:
a) Worker's Compensation ....... : ..................................... $100K/$500K/$100k
b) Comprehensive General Liability............................................ $1,000, 000.00 per occurrence
c) Bodily Injury Liability (CSL)• .................................... $300.000.00
d) Property Damage Liabilily (CSL)• ................................ $300,000.00
e) Automobile Bodily Injury liabili1y ................................$300,000.00
t) Automobile Property Damage Liability........................... $100,000.00
•combined Single Limit
Each insurance policy to be fumished by successful contractor shall include, by endorsement to
the policy, a statement Umt a notice shall be given to District by certified mail thirty (30) days
prior to cancellation or upon any materials change in coverage. Any non·complionce with this
section will result in termination of contract.
4. FIRM PRICES: Proposal prices must be finn from January 1, 2015 through the end of the
thiny-six month (36) contract tcnn. This will be awarded as a multi-year proposal: The District
will award a multi-year contract to the selected proposer, subject to availability of funds beyond
the current fiscal year. All proposers are required to sub1nit firm proposal prices for the
proposal terms as specified in the proposal sheets (Line Items). The selected proposer's
obi igation to honor proposal prices in all years shall be unconditional. However, the district shall
have no obligation to make payments or purchases if, for whatever reason. it does not appropriate
any mo.nies to a special fund designated spedficalJy for the purpose of making payments under
the awarded proposal Proposals arc subject to School Board approval and are contingent upon
actual need, funding and favorable service. The District is interested in es1.ablishing the best value
I
through locked-in pricing for thirty-six (36) month contract with two (2) additional twelve {12)
l month contracts if agreed to by both parties.
5. MODIFICATION OF RATES: Rates will be fixed for a minimum of nine months (September
t
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through May and pa11 of August) June and July and part or August will be adjusted to 112 the
r full monthly rate. PLEASE SUBMIT PROPOSAL PRICING ON THE RESPECTIVE
! PROPOSAL SHEETS, PER MONTH AND THEN PROVIDE A MONTHLY TOTAL PER
CATEGORY. INVOICES FOR AUGUST MUST REFLECT THE "Light & Heavy"
Portions.
Case 7:15-cv-00459 Document 1-4 Filed in TXSD on 10/31/15 Page 4 of 6
6. UCENSE .AGREEMENT: The successful afferor and the Rio Orande City C.l.S~O. School
District will enter a License Agreemen1 (form attached).
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Case 7:15-cv-00459 Document 1-4 Filed in TXSD on 10/31/15 Page 5 of 6
ATTACHMENT 11
SOLID WASTE SERVICES
REQUffiEMENTS/SPECIFICATIONS
The Rio Grande City C.1.S.D., is soliciting proposals for daily collection (every business day as shown on
the enclosed school calendar), transportation and disposal services of lorge commercial solid waste.
Proposals. at a minimum. should respond to the following specifications:
Responsibility of Collections: The contractor must cany out responsibilities in a sate and efllcient
monner with consideration to truffic and students. If a single collection fails to capture all of the solid
wuste presen~ a second collection must be performed at no additiooal cost to the District.
Upcoming new campuses will be included upnn project completion. Pricing from existing campuses wiH
be utilized respectively. Quantities per campus may increlL~e I decrease at any time throughout the
contract term. Deviations from the pricing structure are prohibited unless they are less than the
proposed amount. ·
PLEASE NOTE: The District will not enter into n "new" service contract or ugreemen! Rt the time
or an addition or subtraction or container. The License Agreement developed by the Rio Grande
City C.I.S.D. and subscouent Purchase Orders will serve os notice.
Service Requirements:
a) DUMPSTER SIZE: Provide large commercial-trash receptacles per campus _listed by the
quantities on the attached Proposal Sheets. Other receptacle sizes ntay be used ff total cubic
l yards matches stated si7.e. Please state on bid sheets of any deviations.
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b) RA TES: Provide rates per location .for solid waste collection and disposal for the campuses listed
on the Proposal Sheet and the List of Waste Receptacle Sites & Quantities Needed, as per the
instructions on the Special Tenns and Conditions.
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f c) INVOICING REQUIREMENTS: The awarded vendor must provide separate invoices for Child
I' Nutrition Program and for Maintenance Department on a monthly basis.
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d) CONTACT PERSONS: Inquiries shall be directed as follows:
f Child Nutrition Program - Patricia Ramirez, Director at (956)716-6793
Maintenance Department-Arcadia Salinas Jr., Director at (956)716-4600
1.
i e) TRASH COLLECTION: The district reserves the right to call the awarded vendor for extra trips
i of overflow trash collection as the need may arise at no additional cost to Rio Grande City
J. C.I.S.D.
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I I) OVERFLOW TRASH: All lra.'\b must be collected. including any trash outside the receptacles at
l no additional cost to Rio Grande City C.l.S.D.
f.
f
t Solid Wa.fte Services Require111e11ts!Spec/flc .·.
Case 7:15-cv-00459 Document 1-5 Filed in TXSD on 10/31/15 Page 1of3
Rio GRANDE CITY
STATE OF TEXAS *
* CERTIFICATE OF PUBLIC RECORD
COUNTY OF STARR *
I, Holly D. Guerrero, hereby certify, in the performance of the functions of
my office, that the following is a true and correct copy of the agenda
posted for the Rio Grande City Commission Meeting held on September 28,
2015 and the same appears of record in my office; and that said copy is an
official record from the public office of the City Secretary of Rio Grande
City, Starr County, Texas, and is kept in said office.
In witness whereof I have hereunto set my hand and affixed the official seal
of said office this 28th day of October, 2015.
City Hall at 5332 E. U.S. Highway 83 / Rio Grande City. Texas 78582
956-487-0672 / Fax 956-7 16-8899
www.ciryofrg c.com
Case 7:15-cv:-00459 Document 1-5 Filed in TXSD on 10/31/15 Page ·2. of 3"': . .:.
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Case 7:15-cv-00459 Document 1-5 Filed in TXSD on 10/31/15 Page 3 of 3
AGENDA OF A MEETING OF THE
CITY COMMISSION OF RIO GRANDE CITY
MONDAY, SEPTEMBER 28, 2015 6:00 PM
COMMISSION CHAMBERS, CITY HALL
5332 E. Highway 83 Rio Grande City, Texas
1. GENERAL:
A) Call to order, invocation and Pledge of Allegiance.
B) Roll call and finding of quoru m.
C) Public Forum.
D) Reading of proclamation designating October 4 to October 10 as Fire Prevention Week.
2. ORDINANCES
A) Second Reading and adoption of Ordinance No. 2015-9 adopting the General, Special and
Enterprise Funds Budget for fiscal year 2015-2016.
B) Second Reading and adoption of Ordinance No. 2015-10 establishing an ad valorem tax
and levying a maintenance and operation tax rate and an interest and sinking tax rate for
the tax year ending 2015.
3. CITY MANAGER'S REPORT
A) Discussion and possible action to approve an agreement with Grande Garbage Collection
for emergency solid waste residential and commercial services.\
B) Discussion and possible action to designate a name for the 61 acres of land purchased
from Plains Capital Bank.
4. EXECUTIVE SESSION , CHAPTER 551, TEXAS GOVERNMENT CODE SECTION 551.071
(Consultation with Attorney) and SECTION 551.072 (Deliberations regarding Real
Property)
A) Discussion and possible action - Consultation with attorney regarding Cause No. DC-1 4-
182 Jose De La Fuente f/d/b/a Del Sol Homes and Del Sol Homes, LLC vs. Rio Grande
City, Texas, 229111 District Court of Starr County, Texas.
B) Discussion and possible action - Consultation with attorney regarding Cause No. DC-10-
279 Remedios Herrera v. City of Rio Grande City, 38 1 ~ 1 District Court of Starr County,
Texas.
C) Discussion and possible action - Consultation with attorney regarding Cause No. DC-1 5-
471 , Maria Julissa Pena , et al v. Rio Grande City, Texas , 381 51 District Court of Starr
County, Texas .
D) Discussion and possible action regarding notice to Allied Waste through Resolution No.
2015-9 and response from Allied Waste.
E) Discussion and possible action regarding Prospect No. 2015-6.
5. ADJOURNMENT
W ith regard to nny Item, the City Commission may l nkc v;irious nctlons Including bu t not llmllcd to rescheduling an item Jn Us entire ty for n ruturo dilto or
l imo. Tho Clry Cormnlsfl.lon mny otoc1 to go Into Exocutlvo Session on nny item fisted nbnvc :is nulf1orb;od by lho Texas Govc:mmont Code Sections
551.071(Consullollon with Attomoy), 551.072 (De liberation• rcoordlng Rcol Property), 551.072 (Ocliborotlono rcgording Gifts nnd Oonollons). 551.074
(Pon:onnol M.JUors), 55 1.076 (Dclibcrntlon:i regarding Secu ri ty Oovlcos) and 551 .08 7 (Deliberations regarding Economic Dovclopmcnt NogotinUons).
CERTIFICATION
This is to certify that I, Holly D. Guerrero, posted this Notice on the alcove wall adjacent to the front
door entrance of City Hall, visible and accessible to the general public during and after regular
working hours. This Notice was posted on the 25th day of September 2015 on or before 5:00 pm
and will remain so posted for at least 72 hours preceding the scheduled time of said meeting in
accordance with Chapter 55 1 of the Texas Government Code .
.! lfll~. /J--~~ 4 J!~~c) ~
~~6uerrero, City Secretary
City Commission
9-28-2015
Case 7:15-cv-00459 Document 1-6 Filed in TXS D on 10/31/15 Page 1 of 5
Rio GRANDE C1Tv
STATE OF TEXAS *
* CERTIFICATE OF PUBLIC RECORD
COUNTY OF STARR *
I, Holly D. Guerrero, hereby certify, in the performance of the functions of
my office, that the following is a true and correct copy of the approved
minutes of the City of Rio Grande City Commission Meeting held on
September 28, 2015 and the same appears of record in my office; and that
said copy is an official record from the public office of the City Secretary of
Rio Grande City, Starr County, Texas, and is kept in said office.
In witness whereof I have hereunto set my hand and affixed the official s eal
of said office this 28th day of October, 2015. ,/ . ~)
/.f; j/) J . )
~«_qt~~~µ-rt
Holly D. Guerrero ·..
City Sec~~ ;
City Hall at 5332 E. U.S. Highway 83 / Rio Grande City. Texas 78582
956-487-0672 / Fax 956-7 16-8899
www.cityofrgc.com
,_ .:.•-;.
Case 7:15-cv-00459 Document 1-6 Filed in TXSD .on 10/31/15 Page 2 of 5
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Case 7: 15-cv-00459 Document 1-6 Filed in TXSD on 10/31/15 Page 3 of 5
MINUTES OF A MEETING OF THE
CITY COMM ISS ION OF RIO GRANDE CITY
MONDAY, SEPTEMBER 28, 2015 6:00 PM
COMM ISSION CHAMBERS
5332 E. U.S. Highway 83 Rio Grande City, Texas 78582
Officials Prese nt:
Mayor Joel Villarrea l
Mayor Pro-Tern Hern an R. Garza, Ill
Commissioner Arcadia J . Salinas, Ill
Commiss ioner Rey Ramirez
Commissioner Dave Jones
Deputy City Manager Elisa Y. Beas
City Attorney Ja cqueline R. Salinas
City Secretary Holly D. Guerrero
CALL TO ORDER (Item 1 Al
Mayor Villarreal called the meeting to order at 6:04 pm; the invocation was given and th e
assembly recited the U.S and Texas Pledge of All egiance.
ROLL CALL (Item 1Bl
Th e roll was called and a quorum was declared.
PUBLIC FORUM (Item 1C)
No one requ ested to address the Commiss io n on the Public Forum.
READING OF PROCLAMATION FOR FIRE PREVENTION WEEK (Item 1D)
Mayor Villarreal read th e Proclamation into the record designating October 4 to October 10
as Fire Prevention W eek.
WHEREAS, th e City of Rio Grande City is comm itted to ensuring the safety and security of all
those living in and visiting Rio Grande Ci ty; and
WHEREAS, fire is a serious public safety concern both locally and nationally, and homes are the
locations where people are at greatest risk from fire; and
WHEREAS, home fires killed 2,755 people in the United States in 2013, according to the National
Fire Protection Association (NFPA), and fire departments in the United States responded to
369,500 home fires; and
WHEREAS, working smoke alarms cut the risk of dying in reported home fires in half; and
WHEREAS, three out of five home fire deaths resu lt from fires in properties w ithout working
smoke alarms; and
WHEREAS, in one-fifth of all homes w it h smoke alarms, none were wor king; and
WHEREAS, w hen smoke alarms sho uld have operated but did no t do so it was usually because
batteries were missing, disconnected, or dead; and
WHEREAS, ha lf of home fire deaths resu lt from fires repo rted at night between 11 p.m. and 7
a.m. when most people are asleep; and
WHEREAS, Rio Grande City's residents should install smoke alarms in every sleeping room,
o utside each sepa rate sleeping area, and on every level of the home; and
WHEREAS, Rio Grande City's residents should install smoke alarms and alert devices that meet
the needs of people who are deaf or hard of hearing; and
WHEREAS, Rio Grande City's residents who have planned and practiced a home fire escape plan
are more prepared and w ill t herefore be more likely to survive a fire; and
WHEREAS, Rio Grande City's first respo nders are dedicated to reducing the occurrence of home
fires and home fi re injuries through preven tion and protection education; and
City Commission
9-28-20 15
Case 7:15-cv-00459 Document 1-6 Filed in TXSD on 10/31/15 Page 4 of 5
WHEREAS, Rio Grande City's residents are responsive to public education measures and are able
to take personal steps to Increase their safety from fire, especially in their homes; and
WHEREAS, the 2015 Fire Prevention Week theme, "Hear the Beep Where You Sleep. Every
Bedroom Needs a Working Smoke Alarm I" effectively serves to remind us that we need working
smoke alarms to give us the time to get out safely.
NOW, THEREFORE, I, Joel Villarreal, Mayor of Rio Grande City do hereby proclaim October 4-10,
2015, as Fire Prevention Week throughout this city, and I urge all the people of Rio Grande City to
install smoke alarms in every bedroom, outside each sleeping area, and on every level of the
home, Including the basement and to support the many public safety activities and efforts of Rio
Grande City's fire and emergency services during Fire Prevention Week 2015.
The full discussion of this Item is on flle at the City Secretary's office; City Commission
9-28-2015 audio rec~rdlng.
ORDINANCE NO. 2015-9, GENERAL. SPECIAL AND ENTERPRISE FUNDS BUDGET FOR
FISCAL YEAR 2015-2016 (Item 2A)
The Budget for Fiscal Year 2015-2016 Is a balanced budget prepared with a modest 4%
increase in revenue to support the maintenance and operation of the City. The budget
allows for an Increase In personnel to keep up with the City's growth in terms of health
and safety services. It also provides for overtime pay for a majority of the deparbnent
heads under the proposed new labor regulations. There are also provisions for the
upcoming May 2016 election and the costs associated with new debt payments from the
purchase of communication and road equipment ·
The first reading of this ordinance was at the meeting of Sept. 9, 2015. A few changes
were made from the first reading approval due to errors In the computation of benefits and
formula anomalies. Staff recommends ado'ption of Ordinance No. 2015-9. Cmr. Salinas
moved to adopt Ordinance No. 2015-9 with changes made by the Deputy City Manager
and Cmr. Ramirez seconded the motion. A record vote was called and the Commission
voted ·as follows: Mayor Villarreal - In Favor; Mayor Pro-Tern Garza - In Favor; Cmr.
Salinas - In Favor: Cmr. Ramirez - In Favor: Cmr. Jones - In Favor.
The motion passed unanimously.
The full discussion of this Item Is on flle at the City Secretary's office; Cify Commission
9-28-2015 audio recording.
ORDINANCE NO. 2015 10. AD VALOREM TAX RATE FOR TAX YEAR 2015 (Item 281
00
The first reading of this ordinance was at the City Commission meeting of Sept. 9, 2015.
No changes were made to the ordinance from the first approval. The proposed Jax rate for
tax year 2015 Is as follows:
Maintenance and Operations rate .412128 per $100 valuation
Interest and Sinking rate .102621 per $100 valuation
Total Tax Rate .514749 per $100 v~luation
This is the same rate as last year and the year before; however the proposed ad valorem
rate is 3.69% higher than the effective rate which was calculated by the Tax Assessor-
Collector to be .496427 per $100 valuation. This difference required the City to hold public
hearings which were held on August 24 and August 31. Mayor Pro-Tem Garza moved that
the property tax rate be Increased by the adoption of a tax rate of 0.514749, which Is
effectively a 3.69 percent Increase in the tax rate. Cmr. Ramirez seconded the motion and
a record vote was called. The Commission voted as follows: : Mayor VIiiarreai - In Favor;
Mayor Pro-Tem Garza - Jn Favor; Cmr. Salinas - In Favor; Cmr. Ramirez - In Favor; Cmr.
Jones - In Favor.
The motion passed unanimously.
Ci~ Conunission 2
9-28-2015
Case 7:15-cv-00459 Document 1-6 Filed in TXSD on 10/31/15 Page 5 of 5
' .
The full discussion of this Item Is on file at the City Secretary's office; City Commission
9-28-2015 audio recording.
DESIGNATION OF NAME FOR THE 61 ACRES OF LAND PURCHASED FROM PLAINS
CAPITAL BANK by lhc parties
hereto.
l .10 CON'J'RACTOU "-Grande Gnrbugc Collection Company that is the corporation
performing retiase CL>llcctfon mid disposal u11dc1· contract with the City.
l.11 l>l~AI> ANIMALS - Animals or portions thereof equal to or less than 20 pounds
in weight that have expired from nny cause, except those slaughtered or killed for
human use.
1.12 DISPOSAL SITE - A refuse dcpositot'y not limited to sunitnry landfills, transfer
Case 7:15-cv-00459 Document 1-7 Filed in TXSD on 10/31/15 Page 3 of 14
stations, incinerators, and waste processing/separation centers licensed, permitted
or approved to receive for processing or final disposal of refuse and dead animals
by all governmental bodies and agencies having jurisdiction und requiring such
licenses, permits or approvnls.
J.13 GARBAGE- Any and all dead animals of less than 10 powids in weight, except
those slaughtered for humun consumption; every accumuJation of waste (animal,
vegetable and/or other matter) that results from the preparation, processing,
consumption dealing in, handling, packing, canning, storage: transportation, decay
or decomposition of meats, fish, fowl, birds, fruit-;, but not by way of limhation,
used tin cans and other decomposable waste animal or vegetable matter which is
likely lo attract flies or rodents); except (in all cases) any matter included in the
definition of bulky wasce, construction debris, dead animals, hazardous waste,
rubbish or stable matter.
l.14 HAZARDOUS WASTE ··· :wustc, in any amount, which is defined, characterized
or designated as ha?.ardou~ by d1e United States Environmental Protection Agency
or appropriate State Agency by or pursuant to Federal or State Jaw, or waste, in
any amow1t, which is rcguhtted under Federal or State luw. For purposes of this
contract, the tenn hazardous waste shall also include motor bil, gasoline, painl
and paint cans.
1.15 LANDFil..L-A lawfully pcmlittcd sanitary landfill of the Contractor·s selection.
1.16 PRODUCl~R - An occupru1t of a commerciw wtd industrial unit, construction
site, or a residenLial unit who generates refuse.
1.17 REFUSE -· Residential refuse~ commercial and industrial refuse, brush/bulky
items, construction debris, demolition debris, and stable matter generated by a
producer or contrcictor.
1. t 8 Rl~SIDENTIAL REFUSE - All garbage and rubbish generated by a producer at
n r~sidcntiul unit c•r n smalJ business receiving residential service.
1.19 RESJJ)ENTIAL UNIT -· A dwelling within the corporate limits of the City
occupied by a person or group of persons comprising not more than four families.
A residential unit shall be deemed occupied when water services are being
supplied to thereto. A condominitun dwe11ing, whether of single or mulita-lcvel
construction, consisting of four or less contiguous or separate single-family
dwelling within any such residential unit shall be treated ns a residential unit,
except lhut each single-funlily dwelling within any such r~sidc:ntiul unit.
1.20 RUBHISH - Sec BlJJ.KY WASTE.
1.21 STAHLE MATTER·- All munure nnd other waste muller normally accumulated
in or about a stable, or nay animal, livestock or poultry enclosure, and resulting
Case 7:15-cv-00459 Document 1-7 Filed in TXSD on 10/31115 Page 4of14
from the keeping of animals, poultry or livestock.
2.00 SCOPE OF WORK
The work under this Contn1ct shall consist of commercial, industrial, construction,
demolition. brush/hulky, and residential solid waste collection and disposal,
including all the supervision, material, equipment, labol' and all oth~r items
necessary to complete said work in accordance with the contract documents.
3.00 COLLECTION OJ>ERATIONS
3.01 SERVICE PROVIDED
(a) Contractor shall pmvidc automated curbside cart collection service for the
collection of residential refuse to each residential unit and commercial Wlit
receiving residen1ial serviced one (1) time per week.
(b) Contractor shall provide dumpster bin collection services for the collection of
refuse to commercial units. industrial units, and muliti-family residential
complexes of five (5) or more dwellings, or w1y units under construction
according to individual agreement
(c) During the tcnn of this contmct the Contractor shall make available or provide
for the speciaJ collection from residential units, conunercial units, and
construction I demolition sites for consbllction I demolition material, debris,
w1d stable matter upon terms and conditions as contractor sludl specify. Also,
the ContTactor may from time to time provide fol' the special collection of
Dead Animals and Hazardous Waste at commercial and Industrial Units and
lksidcntial Units ut its soJc discretion and upon such terms wtd conditions as
agreed to by City and Contractor.
(d) Contractor shall provide the following services to City owned properties at no
additional cost.
• Fumish !'ix 30-cubic yard roll-off hauls pcl' year for annual events of
the City and Economic Development cummittcc.
o Up to seven (7) 4-yard dumpsters (or 96 gallon carts) serviced once
per week at various City Jocalions including City Hall, Fire
Department. Public Works Facility, Library, Public Utiliiy
Department, nncl other municipal buildings.
• Assistance in up to four {4) city wide clean-ups per year. Contractor
will assist with City wide clean-ups four (4) times per yew· with brush
truck collection. llcms collected will be of the swne natw:e of waste
collected during the monthly brush/bulky item collection.
Case 7:15-cv-00459 Document 1-7 Filed in TXSD on 10/31/15 Page 5 of 14
3.02 LOCATION OF BINS, CONTAINERS, BRUSH/BULKY WASTE FOR
COLLECTION
(a) Containers and brush/bulky items shall be placed at curbside for collection as
required by City ordinance. Curbside refers to that portion of right-of-way
adjacent to paved or traveled City roadways. Containers, hmsh/bulky items
shall be placed as close lo the roadway as practicable without interfering with
or endangering the movement of vehicles or pedestrians. When construction
work is being pcrfonned in the right-of-way, containers, brush/bulky items
shall b~ places as close as pructicable to an access point for the collection
vehicle. Co11tractor may decline to collect any residential refuse not properly
placed inn Contractors issued container.
(b) Contractor shall provide bins for commercinJ Wld industrial units and
construction sites whenever customers request their use. Each bin shall be
placed in an accessible, unobstructed location on a hard surface according to
individual ugrccment subject to city ordinance. Conlrdctor may decline to
1
collect refus~ in binds no so placed to permit a collection vehicle unobstructed
acccs~. Contractor will not be held responsible for wear and tear or surface
damage on customer's private property caused by normal collection
operations.
3.03 ITEMS NOT COLLECTED
Items not collected under the terms of this contract include batteries, liquids of
any kind, medical waste, hazardous wa.stc, oshescos. junk vehicles, Jirt, rocks,
asphalt, items containing Freon: corrugated metal, or any materials not included
under the definitions of garbage, rubbish.
4.00 COLLECTION OPERATIONS
4.01 HOURS OF OPERATION
{a) C:ollcction of residential refuse shall not start before 7:00 a.m. or continue
alter 7:00 p.m. on the same ns, 1egnl proceedings, claims, demands, damages,
costs, expenses and attorney's fees arising out of the nwnrd of this Contract or a
wiJJful or negligent act or omission of the City, its officers, agents, servants and
employees.
9.00 LICENSES AND TAXES
The Contractor shall obtain oil licenses and pennits (other 1han the license and
permit granted by the contract) and promptly pay all taxes required by the State.
10.00 TERM
(a) -il:Je term of the contract with the City of Rio Grande City and the
Contractor will be cflcctivc beginning October 10, 2015 through October 11,
2018 (EXPlRATJON DATE). The Contract shall be for a three (3) year period
beginning upon the execution of Contract. The initial three (3) year term of this
i
C01~tract can be extended for successive additional two (2) year terms provided
!. both pm1ies at'e in mutual agreement. Should a mutual agreement nol be reached,
I
j either party shall notily the other party in writing not less than ninety (90) days
I·
t prior lo the expiration date of the initial three (3) year lcnn or of any successive
I.
term, if its intention is to terminate this contract. Any such written notice shall be
r served by ccrtiliccl or registered mail, return receipt requested.
~
I: 11.0 INSURANCE
I Contractor shull at ull limes during 1he Contract maintain in full force and eftect
I
Employer·s HubHhy, Worker's Compensation (or equivalent), Public Liability,
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Case 7:15-cv-00459 Document 1-7 Filed in TXSD on 10/31/15 Page 9 of 14
and Property Damage insurance, including contractual liability coverage for the
provision of Section VIII.
Before comrnencecnent of work hereunder, Contractor agrees to furnish to City
certificate of insurance or other evidence satisfactory to City to the affect that
such insurance has been procured and is in full force.
For th~ purpose of this Contract, Contractor shall carry the following types of
insurance in at least the limits specified below:
Coverage: Limits of Liability:
Worker's Compensation Statutory
(or equivalent)
Employer's Liability $500,000.00
Bodily Injury Liability $500,000.00 each occurrence
Except Automobile $1,000,000.00 aggregate
Property Damage Liability $500,000.00 each occurrence
Except Automobile $1,000,000.00 aggregate
Automobile Bodily Injury Liability $500,000.00 each occun·cnce
$1,000,000.00 aggregate
Automobile Prop~ny Damage Liability $500,000.00 each occurrence
Excess Umbrella Liability $500,000.00 each occurrence
Commercial General Liability $500,000.00
12.00 TRANSFERABILITY OF CONTRACT
Other than by operation of law and assignment to atliliatcs of Contractor, no
assigmnent of the Contracl or any right accruing under this Contract shall be
made in whole or in part by the Contractor without the express writtc11 consent of
the City, which consent will not be wtreasonabJy withheld. Upon the assigrunent,
the assignee sha11 assume the liability of the Contractor. Notwithstanding
anything contained herein to the contrary, Contractor shall be penniltcd to assign
this Agreement to an affiliate nf the Contntctor without lhc Cily's consent. This
provision is not intended to preclude the Contractor or other company from
acquiring or merging with another authorized Contractor providing collection
services under u conn-net with the City at the time of such acc1uisition or merger.
f.
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Case 7:15-cv-00459 Document 1-7 Filed in TXSD on 10/31/15 Page 10 of 14
13.00 BASIS AND METHOD OF PAYMENT
13.01 COLLECTION
(a) For collection service required to be performed pursuant to Section 3.01 (a)-
(c), the charges shall not exceed the rates as fixed by lhc contract documents
as adjusted jn nccordnnce with Section 13.02.
(b) For special collection provided by the Contractor pursuant lo Section 3.01 (d),
the charges are to be negotiated between the Contractor and the producer prior
to collection. Fees charges shall be in compliance with a schedule of fees.
(c) Invoices sent to City by Contractor should reflect the rates shown on the
attached rate quotations sheet. Rates shall be charged in accordance with the
attached schedule ofralcs from AJlied Waste letter dated September 1, 2014.
13.02 MODIFICATION TO RATES
(a) Modifications to rates shall be approved by both parties mutually every twelve
(12) month period, if ncccssal'y. As soon as possible before a Rate
Modification Date, Contractor shall send to City a comparative statement
setting out for both lhc Water and Sewer and Trash Collection Services index
and the Diesel Prices Index: (i) the twelve month average index values as of
the month of June from the current and previous year; (ii) the net percentage
change;(iii) the composite percentage change equal to ninety percent (90%) of
the net percentage in the \Vate1· wtd Sewer and Tmsh Collection Services
l index, plus ten percent (10%) of the percentage change in the Diesel Prices
Index; and (iv) the increase in the fees which may be charged by Contractor.
ii Increases enacted under this section shall not exceed 4% per contract year and
must be mutually agreed to by both parties.
t
fi 13.03 CITY TO ACT AS COLLECTOR. The City shall submit statements to and
collect from all customers for residential, commercial receiving residential, and
i commercial bin S\!rvices provided by the Contractor pursuant lo Section 3.01 (a)
t a.nd·3.01 (b), including those such accounts that arc delinquent.
f 13.04 CONTRACTOH TO ACT AS COLLECTOR. The Conlractor shall submit
statements t<> and collect from all construc..1ion (roll-oft) bin services provided by
I· the Contractor pursuant to Section 3.01 (c), including those accounts that are
t delinquent.
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13.05 DELINQUENT AND CLOSED ACCOUNTS. The Contractor sbaJI discontinue
refuse collection services to all customers as set forth in a written notice sent to it
by the City. Upon further notification by the City. the Contractor shall resume
refuse collecti(ln on the next regularly scheduled collection dny.
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Case 7:15-cv-00459 Document 1-7 Filed in TXSD on 10/31/15 Page 11of14
13.06 CONTRACTOR BILLING TO CITY. Within three (3) clays following the end
of each month, the City shall submit to Contractor the number of active residential
units, commercial units receiving residential service, and commercial bin units
during the preceding month. The Contractor shall bill the City for services
rendered to residcntinl units: commercial units receiving residential service, and
commercial bin units witllin five (5) days foJlowing the end of the month of
service and the City shall pay the Contractor on or before the twentieth (20~ day
following the end of such month. Should Payment not be received on or before
the twentieth (201h) day following the end of such month, a late fee of 1.5% will
be charged on the delinquent amoWlt. Such billing and payments sha11 be based
on the price rates and schedules set fo1th in the contract documents. Subsequent lo
said billing, the Contractor shall be entitled to payment for services rendered to all
residential units a11d commercial units and lndustriaJ units irrespective of whether
or not the City collects from the producer for such services.
13.07 FHA"fCIDSE FEES. City shall receive 5% of all revenues as a franchise fee.
14.00 EXLUSIVE CONTRACT
The Contractor shall have the sole and exclusive franchise, license, aud privilege
to provide bmsh/bulky waste, residential, commercial, industrial, and construction
I demolition refuse collection. removal and disposal services withln the corporate
limits of the City (11ot including Starr County or RGCCISD properties). The
Contractor shall at all times have the right of first refusal to the collectiou of dead
animals and hazardous waste from residential units and from commercial 1111d
~
I.
industrial units.
r JS.00 OWN}~RSHfP
i} Title to refuse of any dead animals shall pass to the Contractor when placed in
I
I
Contractor's collection vehicle, removed by the Contractor from a bin or
I Container, or rcrnoved by Contractor from the cuslom.er's premises.• whichever
I
I last occurs.
i
16.00 RECORDS AVAILABLE FOR INSPECTION
i All records maintained by the Contractor regarding performance of tl1is Contract
t shull be uvail.ablc for inspection, audit or photocopying by the City during regular
business hours.
17.00 JURS.O)JCTJON
I.
Any controversy between the pnrtics to this agreement involving the construction
or application of any of the terms, covenants, or conditions of lhis Agreement
shall, on the written request of one party s~rved on the other, be s~bmitted to
arbitration, and such arbitration shall comply wilh and be govemcd by the
Case 7:15-cv-00459 Document 1-7 Filed in TXSD on 10/31/15 Page 12 of 14
provisions of the Texas General Arbitration Act and/or shalJ b~ litigated in Starr
County, Texas.
18.00 ENTmE AGREEMENT
'l11is Contract together wilh any attachments hereto represents the entire
agrcemenl between the parties hereto ltnd any other representatives or
inducements which may have been made between the parties and which are not
included herein w-c void.
19.00 TERMINATION
Notice of Breach - In the event of material breach of any term of this agreement,
the City Manager shall give the contractor formal nc.1ticc or the material breach of
the agreement, and specif)· the particuJar deficiencies that the CiLy has ohserved in
the Contractor's performance. Additionally, the notice shall state Contractor's
failure to cure such stated cause within (60) days upon receipt of said notice. A
copy of the notice shall be promptly delivered to the contractor via certified mail
at the address provided herein. The contractor shall have no more than (60)
calendar days from the date of delivery of the resolution to correct or relieve the
'. material breach of the agreement and notify the City Munnger, in writing of the
i action for remediation taken by contractor to correct or relieve the material breach
of the agreement. Should the Board of Councilmen at its reasonable discretion
detennine that Contractor failed to correct or relieve the material breach of the
.
:
i
agreement, the Board of Councilmen, by resolution may tenninatc this agreement.
Such termination shall be effec1ive at the reasonable discretion of lhe Board of
I Councilmen the best interest to the community and to protect the health and safety
~ of the residents.
i
I
20.00 CLEAN-UPS
1
I In the event of u natural disaster for which the City is declared a disaster area by
the State or Federal Government, it shall be the City•s responsibility to dispose of
I·
! brush and bulky waste caused by such disaster; and wiJl attempt in good faith to
use .ConLmclor s services and facilities if they can be used at a completive cost as
1
other methods a\'aiJable to the City; nnd can be mutually agr~ed upon by the
Contmctor and the City. This provision shall not apply to the disposal any bmsh
and bulky waste not caused by the natural disaster.
21.00 INDEMNl.lt'ICATJON
Indemnification. To the fullest extent permitted by applicable law, the Conlractor
and its agents, pW1ner, subcontractors, 1md consultants (collectively
"Indemnitors") shall and do agree to indemnify, pmtcct, detend and hold hannless
the Owner, the Owner's respective directors, elected officials, emp~oyees and
agcnLc; (coJlcctivcly nlndem.nitecs'')from and against all claims, dumages, losses,
Case 7:15-cv-00459 Document 1-7 Filed in TXSD on 10/31/15 Page 13 of 14
liens1 causes of action, suite;, judgments and expenses, including attorney fees, of
any nature, kind of description (collectively ·~Liabilities") of any person or entity
whomsoever arising out of, caused by or resulting from the perfom1ance of the
Contractor~s services through activities of the Contractor, its agents, partners,
subcontractors and/or consultants performed under this Agreement, and which are
caused by or result tbnn error, omission, or negligent net of the Contractor or of
wiy person emp1oyed or contracted by the Contractor provided that any sd'ch
Liabilities (I) are attributable to bodily injury, personal iltjury, sickness, disease
or death of any person~ or to the injury to or destruction of tangible resulting
therefrom and (2) are caused in whole or in part by any negligent act or omission
of the Contractor, anyone directly or indirectly employed by the Contractor or
anyone for whose acts the Contractor mny be legally liable. The Contractor shall
also save hamtlcss the Owner from any and all expense, including, but not limited
l<>, attotncy foes which muy be incurred by the Ownet· in litigation or otherwise
resisting said claim or liabilities which may be imposed on the Owner ac; a result
of such activities by the Contractor its agents~ partners: subcontractors and/or
consu1tants. 111 this connection, it is agreed and understood thal the Contractor
shall not be responsible fo.- any portion of the liability proximately caused by the
Owner's negligence.
22.00 CONDITIONS OF CONTRACT
This Contract is cnt~rccl into subject to the following conditions:
(a) Neither the Contr'1ctor nor the City shall be liable for the failure to perfonn
their duties if such failure is caused by a catastrophe, riot, war, governmental
order or regulation, strike, fire, inclement weather, accident, act of God or
other similar or different contingency beyond the reasonable control of the
Contractor or City.
(b) In the C\'Cnt that any provision or portion thereof or any Contract Document
shall be found to be invalid or unenforceable, then such provision or portion
thereof shall be reformed in accordance with the applicable laws. The
t
I invn1idity or unenforceability of any provision or portion of any Contract
i J)ocument shall not affect the validity or enforceability of any other provision
or portion of the Contract Document.
t
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t
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. --
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t
Case 7:15-cv-00459 Document 1-7 Filed in TXSD on 10/31/15 Page 14 of 14
IN WITNESS WHEREOF, WE, lhe contracting parties,, by our duly authorized agents,
.hereto affix our signotnres and s.eals at Rio Grcmde City, Texas, as of the 28dt day of
$eptcri)be,: 201 s.
CITY OF RIO GRANDE CITY, T,P:XAS
A MunicipRl Cowornlion of
Sutrr Corinty, Texas
SEAL of the City of Rio Oraude, Texas and: .: .:H=o;i;:.: 11.._v=D.:...O=ue::.rr:=c=ro==---------
. City Secretary
,
..
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i. .
CONTRACTOR:
Grande Garbage Collection Company
Case 7:15-cv-00459 Document 1-fPCJ!rr~~ in TXSD on 10/31/15 Flliil(Jeot81a'1i9se:s4 PM
Starr County - District Clerk Eloy R. Garcia, District Clerk
Starr County, Texas
Litxzary Benavides
DC-15-604
Cause No.
-------
BFI WASTE SERVICES OF TEXAS, LP, § IN THE DISTRICT COURT
D/B/A ALLIED WASTE SERVICES OF §
RIO GRANDE VALLEY §
§
Plaintiff §
§ 229th
v. § JUDICIAL DISTRICT
§
§
§
CITY OF RIO GRANDE, TEXAS §
AND IT'S ELECTED OFFICIALS IN §
THEIR OFFICIAL CAPACITIES §
Defendants § STARR COUNTY, TEXAS
ORIGINAL PETITION FOR DECLARATORY JUDGEMENT,
INJUNCTIVE RELIEF AND DAMAGES
Plaintiff BFI WASTE SERVICES OF TEXAS, LP, D/B/A ALLIED WASTE
SERVICES OF RIO GRANDE VALLEY, a Delaware Limited Partnership ("Allied") files this
Original Petition for Declaratory Judgment, Injunctive Relief and Damages against Defendants
CITY OF RIO GRANDE, TEXAS and its Mayor Joe Villarreal, Mayor Pro Tern Heman R.
Garza, III, Arcadia Salinas, Ill, Rey Ramirez and David Jones, as elected officials, (collectively,
the "City") and requests a Temporary Restraining Order (in the event the City does not
participate in a hearing on this request) or a Temporary Injunction (in the event the City does
participate in a hearing on this request) be issued.
I. DISCOVERY CONTROL PLAN
1. For purposes of Rule 190. l, Allied alleges that the nature of this case may involve
extensive discovery, making a Level 2 discovery plan appropriate. However, Allied reserves the
right to request entry of an order establishing a Level 3 discovery control plan.
Case 7:15-cv-00459 Document 1-8 Filed in TXSD on 10/31/15 Page 2 of 19
II. PARTIES
2. Allied is a Delaware limited partnership, with its principal place of business at 18500
North Allied Way, Phoenix Arizona, 85054. Allied is a full service provider of solid waste
collection and disposal services, providing solid waste collection services to municipalities in the
Rio Grande Valley
3. Defendant City is a home rule city formed under the laws of and incorporated in the State
of Texas. It may be served by serving its Mayor, Joe Villarreal, at 5332 E. Highway 83, Rio
Grande City, Texas 78582. The individually named defendants comprise the City Commission
and are sued in their official capacity. The City Commissioners are:
4. Joel Villarreal - Mayor
5. Heman R. Garza, III- Mayor Pro Tempore and Commissioner Place 3
6. Arcadia Salinas, III - Commissioner Place 1
7. Rey Ramirez - Commissioner Place 2
8. Dave Jones - Commissioner Place 4
Each and every member of the Defendant City Commission can be served with process at
5332 E. Highway 83, Rio Grande City, Texas 78582.
III. JURISDICTION AND VENUE
9. This Court has jurisdiction over the subject matter of this case because the amount in
controversy exceeds this Court's minimum jurisdictional requirements and the Plaintiff seeks
both declaratory and injunctive relief.
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Case 7:15-cv-00459 Document 1-8 Filed in TXSD on 10/31/15 Page 3of19
l 0. This Court has jurisdiction over the Defendants pursuant to Chapter 17 of the Texas Civil
Practice and Remedies Code or otherwise as the City is incorporated in the State of Texas and
the actions complained of have all occurred in whole or in part in the State of Texas.
11. Venue for this case is proper in StatT County, Texas pursuant to Chapter 15 of the Texas
Civil Practice and Remedies Code or otherwise because all or a substantial part of the events or
omissions giving rise to the claims occurred in Starr County.
IV. NATURE OF ACTION
12. Since 2007, Allied has provided residential, commercial, industrial and construction solid
waste collection, removal and disposal services within the corporate limits of the City under an
exclusive franchise agreement (the "Agreement") between Allied and the City. A true and
correct copy of the current written agreement is attached as Exhibit "A". The Agreement is
effective from October 1, 2011 through September 30, 2018. The agreement is exclusive to
Allied and the City may not contract with another entity to perform the solid waste collection
services covered by the Agreement during the term of the Agreement.
13. The City has waived sovereign immunity to both liability and suit by contracting for solid
waste collection services with Allied. Section 271.152 of the Texas Local Government Code
provides:
A local governmental entity that is authorized by statute or the constitution to enter into a
contract and that enters into a contract subject to this subchapter waives sovereign
immunity to suit for the purpose of adjudicating a claim for breach of the contract,
subject to the tenns and conditions of this subchapter. Tex. Loe. Gov't.Code Ann. §
271.152 (Vernon 2005).
The City and Allied entered into a written contract stating the essential terms of the
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Case 7:15-cv-00459 Document 1-8 Filed in TXSD on 10/31/15 Page 4of19
agreement for providing solid waste collection services and this agreement was approved by the
City's governing body at a lawfully held meeting. As such, the City has waived immunity to this
suit and the damages claimed.
14. On April 14, 2015 the City presented a resolution expressing concerns described as
"defaults and/or deficiencies of contract services" related to refuse collection, city wide cleanups
and a claim by Starr County. A copy of the Notice Letter and Resolution is attached as Exhibit
"B". The resolution made reference to adoption of a Resolution to serve as notice regarding
defaults and/or deficiencies in contractual services in accordance with Section 19.00 of the
Contract. Allied responded by requesting and attending a May 1, 2015 meeting with City
officials at the Rio Grande City Commissioners Meeting Room and by presenting the City with a
letter attached as Exhibit "C" on May 14, 2015.
15. There is no provision in the Agreement permitting termination for "defaults and/or
deficiencies" as presented in the aforementioned City Resolution No. 2015-9. The Agreement
clearly provides that if the City believes it has cause to tenninate the Agreement prior to the
expiration date of the Agreement, Allied must be provided with a Resolution giving Allied
formal notice of a "material breach" of the Agreement and an opportunity to cure. See Page 13
of Exhibit "A". 19 .00 Termination.
16. At no time has the City provided Allied with any Resolution or claim that Allied has
committed a "material breach" of the Agreement and therefore, the City may not invoke Section
19.00 of the Agreement to terminate the Agreement with Allied. Further, the City has at no time
provided Allied with an opportunity to cure any such alleged breach, as is also required by
Section 19.00 of the Agreement.
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Case 7:15-cv-00459 Document 1-8 Filed in TXSD on 10/31/15 Page 5 of 19
17. Even though the concerns expressed were not described by the City as "material
breaches" of the Agreement, Allied responded as evidenced by Exhibit "C". Allied asserted
that the matters cited by the City did not rise to the level of material breaches as contemplated in
the contract and that nonetheless, Allied had either clarified that the defaults or deficiencies
claimed by the City had been or were being resolved to the City's satisfaction. With respect to
the three concerns addressed, Allied asked for the City to notify Allied immediately if the City
was not satisfied with Allied's response.
18. As of the filing of the Petition, the City has not expressed any dissatisfaction with
Allied's May 1, 2015 and May 14, 2015 responses regarding matters that did not rise to the level
of material breaches of the Agreement.
19. On September 11, 2015 Allied sent the City a letter expressing concern over proposed
City Ordinance 2015-8 which would violate the exclusivity provisions in Allied's Agreement
with the City. The letter is attached as Exhibit "D". The letter also provided an analysis of
legal authority contradicting terms proposed in Ordinance 2015-8. Unbeknownst to Allied, the
City had already decided to take action to terminate the Agreement.
20. On September 14, 2015 the City sent Allied a letter notifying it that the City "has
tenninated your solid waste services" and instructing Allied to cease any and all solid waste
collection activity in the City on October 9, 2015. The letter is attached as Exhibit "E". The
letter further demanded that Allied remove all of its trash bins in the City on or before October
23, 2015. The letter threatened that the City would charge Allied for removal and storage of
Allied's trash bins if Allied failed to remove them. Neither this letter nor any other notice or, to
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Case 7:15-cv-00459 Document 1-8 Filed in TXSD on 10/31/15 Page 6of19
Allied's knowledge, resolution, provide details of any alleged material breach or opportunity to
cure as required by the City's contract with Allied. Further, nothing in the Agreement allows the
City to remove Allied's property and impose charges for removal and storage of property that is
placed in the City pursuant to a lawful Agreement.
21. At about the time Allied received notice that it should cease waste collection activity in
the City, Allied noticed that a competitor was placing commercial trash bins alongside Allied's
receptacles in the City. Such conduct (which has continued since that time), if pennitted by the
City, constitutes an additional breach of the City's Agreement with Allied, namely, a violation of
the exclusivity provision found in Section 14. Exclusive Contract, Page 12 of Exhibit "A".
22. On September 17, 2015 Allied wrote to the City informing the City that the City could
not lawfully tenninate the Agreement. See the attached Exhibit "F". Allied once again pointed
out that the City had not provided Allied with any notice of material breach of the Agreement or
an opportunity to cure.
23. The City has taken actions which, if allowed, will tenninate the Agreement without cause
on October 9, 2015, almost 36 months prior to the agreed upon tennination date. The City will
deprive Allied of its rights under the Agreement thereby impairing Allied's contract rights,
severely affecting and disrupting Allied's business operations, pennanently damaging Allied's
business operations and damaging Allied's business reputation and goodwill in Rio Grande City
and Starr County, Texas. Additionally, this breach of Agreement will cause Allied significant
damages through the remainder of the tenn of the Agreement in the fonn of losses resulting from
the loss of use of receptacles acquired specifically for the City and lost profits. In addition, the
City is violating constitutional rights afforded to Allied as will be shown below and Allied will
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Case 7:15-cv-00459 Document 1-8 Filed in TXSD on 10/31/15 Page 7of19
suffer irreparable hann if the City is allowed to tenninate the Agreement without cause.
24. Allied challenges those actions of the City, showing that those actions are in violation of
the "Contract'' Clause of the United States Constitution and the Texas Constitution, the "Due
Process" clause of the United States Constitution and the "Due Process of Law" Clause of the
Texas Constitution. The City has taken its actions for no identifiable public purpose as the City
has alleged no material breach of the Agreement by Allied.
25. The City's actions should be immediately and permanently enjoined during the remainder
of Allied's contract tenn.
V. FACTS
26. On February 6, 2013, Allied entered into an agreement with the City to provide solid
waste collection and disposal services within the jurisdiction of the City of Rio Grande. The
agreement is attached as Exhibit "A." The agreement included the following terms:
A) A tenn ending on September 30, 2018. TERM. Page 1 of Exhibit "A".
B) A scope of work obligating and giving Allied the right to provide commercial,
industrial, construction and residential solid waste collection and disposal, within the
corporate limits of the City. 2.00 SCOPE OF WORK. Page 4 of Exhibit "A".
C) A requirement that the City pay Allied the rates as outlined in the Rate Schedule,
as modified in accordance with the Agreement. 13.02 MODIFICATION TO RATES
Page 10 of Exhibit "A".
D) An exclusivity provision, granting Allied the sole and exclusive franchise, license
and privilege to provide the services within the corporate limits of the City. 14.00
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Case 7:15-cv-00459 Document 1-8 Filed in TXSD on 10/31/15 Page a of 19
EXCLUSIVE CONTRACT Page 12 of Exhibit "A".
E) A termination provision requiring the City to notify Allied of any material breach
and a thirty (30) day opportunity to cure any such breach. 19.00 TERMINATION. Page
13 of Exhibit "A".
F) A provision that should the Board of Councilmen at its reasonable discretion
determine that the contractor [Allied] failed to correct or relieve the material breach of
the agreement, the Board of Councilmen, by resolution may tenninate this agreement.
19.00 TERMINATION. Page 13 of Exhibit "A".
G) On September 11, 2015, the City sent a notice of termination of the Agreement to
Allied, notifying Allied of the City's decision to not continue services under the
agreement, effective October 9, 2015. A copy of the notice and resolution is attached as
Exhibit "D".
27. None of the alleged breaches were material or gave rise to any ability to terminate.
Nevertheless, Allied promptly responded to the notices and there can be no claim that the alleged
defaults were not cured.
28. As of the filing of the Petition, the City has not presented Allied with a resolution as
required by the agreement notifying Allied of the City's determination that Allied has failed to
correct or relieve any material of the agreement.
29. Pursuant to the Agreement, City pays Allied approximately $142,000 per month for a
combination of residential, commercial and industrial solid waste collections. If the City is
allowed to continue with this violation of Allied's rights, Allied will lose the full value of its
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Case 7:15-cv-00459 Document 1-8 Filed in TXSD on 10/31/15 Page 9of19
agreement for the remainder of the contract term.
30. Separately or in combination, the City's action to terminate the Agreement and decision
to retain the services of a competitor constitute action by the City that operates as a substantial
impairment to the Agreement, for no legitimate public purpose, much less a significant and
legitimate public purpose. Such conduct is also a breach of the Agreement. The hann faced by
Allied is real and immediate.
VI. FIRST CAUSE OF ACTION- VIOLATION OF CONTRACT CLAUSE-U.S.
31. The actions of the City as set forth above substantially impair the contractual right of
Allied to be the exclusive provider of solid waste services in the corporate limits of the City.
32. The actions of the City do not advance any legitimate public purpose, much less a
significant and legitimate public purpose.
33. Even if the actions of the City were to advance a legitimate public goal, its actions were
neither reasonable nor necessary to advance such a goal.
34. Therefore, the City's actions violate the "Contract Clause" of the United States
Constitution, Article I, Section 10.
VII. SECOND CAUSE OF ACTION-VIOLATION OF CONTRACT CLAUSE-TEXAS
35. The actions of the City are specifically directed at and directly abrogate Allied's
contractual rights to provide exclusive solid waste services in the corporate limits of the City.
36. The actions of the City do not represent an exercise of the police power.
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Case 7:15-cv-00459 Document 1-8 Filed in TXSD on 10/31/15 Page 10 of 19
37. Therefore, the City's actions violate the "Contract Clause" of the Texas Constitution, art.
1, Sections 16 and 29.
VIII. THIRD CAUSE OF ACTION-VIOLATION OF DUE COURSE OF LAW
CLAUSE-TEXAS
38. The actions by the City improperly impair Allied's vested rights under the Agreement.
39. The "due course oflaw" clause of the Texas Constitution prevents a City from depriving
a citizen of the state of vested rights unless it acts according to its police powers and by due
course oflaw.
40. Because the City's actions do not represent an exercise of the police power, and will
impair Allied's vested rights under the Agreement, the City's actions violate the "due course of
law" clause of the Texas Constitution, Art. 1, Section 19.
VIII. FOURTH CAUSE OF ACTION-VIOLATION OF 14TH AMENDMENT-U.S.
41. The City's actions will deprive Allied of its vested right under the Agreement.
42. The City did not afford Allied any due process of law before taking the actions which
will deprive Allied of its vested rights.
43. The City's actions are not an exercise of its police power.
44. The Due Process Clause, U.S. Const. Amend. 14, protects citizens from being subject to
actions by the City which the City does not have the power to take.
45. The City's actions will deprive Allied of those rights without due process oflaw in
violation of U.S. Const. Amend. 14. Section 1.
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Case 7:15-cv-00459 Document 1-8 Filed in TXSD on 10/31/15 Page 11 of 19
IX. FIFTH CAUSE OF ACTION-BREACH OF AGREEMENT
46. The City's termination of its Agreement with Allied and its intent to contract with
another solid waste collection provider to begin solid waste collection services in the City is a
breach of the valid and enforceable contract possessed by Allied to provide those services
through September 30, 20 I 8. The breach of the existing contract has been made clear by
presence in the City of trash containers/dumpsters belonging to a competitor in violation of
Allied's exclusive contract with the City.
47. City, by express language and conduct is repudiating its contractual obligation to use
Allied through September 30, 2018 for its solid waste collection and disposal services. As
such, Allied's contractual right to collect and dispose of solid waste in the City will be violated
and Allied will suffer damages over the term of the contract, exclusive of interest and costs.
48. Allied has written to City and has declared that it has a valid and enforceable agreement
and has specifically requested that the City withdraw its notice of termination dated September
11, 2015 or alternatively, that City abate the termination process for a period of at least sixty
days to allow for the parties to attempt a resolution of this matter. Allied's request is attached as
Exhibit "E". At the time of the filing this complaint, the City Attorney has communicated that
the City will be considering whether to abate the termination process at a meeting of the Board
of Councilmen scheduled for October 8, 2015 at 5:30 p.m. Allied has not been infonned that the
City intends to withdraw its tennination letter dated September 14, 2014 or abate the termination
process.
49. City, by and through its elected and appointed officials refuses to acknowledge the
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Case 7:15-cv-00459 Document 1-8 Filed in TXSD on 10/31/15 Page 12 of 19
existence of a lawful, valid and enforceable obligation to use Allied as City's exclusive solid
waste collection and disposal provider through September 30, 2018. City's conduct is a breach
of Allied's sole and exclusive right to provide those services through September 30, 2018.
X. ATTORNEY'S FEES
50. Allied is entitled to and requests judgment against the City for Allied's reasonable and
necessary attorney's fees incurred in bringing and prosecuting this action. Allied is entitled to
attorney's fees pursuant to the Declaratory Judgment Act and Section 38.000 et. seq. of the
Texas Civil Practice and Remedies Code.
XI. DAMAGES
51. Plaintiff incorporates by reference the factual allegations contained in the preceding
paragraphs.
52. As a result of Defendants' breach of contract, Plaintiff will suffer actual damages in the
fonn of loss of goodwill, loss of reputation, business disruption, lost revenues, lost profits, out-
of-pocket expenses and other damages which are collectively unliquidated and incapable of
being easily calculated. The damages claimed are in an amount in excess of the minimum
amount necessary for jurisdiction in this court, exclusive of court costs and attorney fees.
53. Plaintiff is entitled to recover its reasonable and necessary attorneys' fees and costs
associated with prosecuting this action. Plaintiff seeks an award of attorneys' fees and costs
against Defendants.
54. Plaintiff is entitled to recover pre-and post-judgment interest, at the statutory rate or at
such other rate as is set by this Court.
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XII. REQUEST FOR DECLARATORY JUDGMENT
55. Plaintiff incorporates by reference the factual allegations contained in the preceding
paragraphs.
56. Plaintiff brings this action under the Uniform Declaratory Judgments Act. Sections
37.001 et seq. of the Texas Civil Practice and Remedies Code, seeking an interpretation and
construction by this court of clauses in an agreement entered into between Allied and the City
and attached as Exhibit "A".
57. Because of City's conduct in permitting a competitor to place waste disposal containers
in the City of Rio Grande in violation of City's contract with Allied, and because of the
disagreement between Allied and City over City's obligation to protect Allied and enforce
Allied's right to exclusivity until September 18, 2018, Plaintiff is entitled to a declaratory
judgment that City owes Allied for the value of services contracted pursuant to the agreement
identified as Exhibit "A".
58. Furthennore, because of Defendant's failure to honor Plaintiffs timely written demand to
cease actions in breach of the agreement, which necessitated Plaintiff preparing and filing this
lawsuit, Plaintiff is entitled, pursuant to Tex. Civ. Prac. & Rem. Code§ 37.009, to recover its
costs and reasonable and necessary attorneys' fees incurred in compelling Defendant to perfonn
its contractual obligations.
59. Pursuant to the Uniform Declaratory Judgments Act, Sections 37.001 et seq. of the Texas
Civil Practice and Remedies Code, Plaintiff requests that this Court issue a declaratory judgment
declaring:
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Case 7:15-cv-00459 Document 1-8 Filed in TXSD on 10/31/15 Page 14 of 19
1) That City entered into an agreement with Allied on February 6, 2013;
2) That pursuant to that agreement, Allied possesses the sole and exclusive right to provide solid
waste collection and disposal services in the City of Rio Grande, Texas during the tenn of the
agreement;
3) That the end date of the current contract tenn between the City of Rio Grande and Allied is
September 30, 2018.
60. By granting the declaratory relief sought by Allied, this Court will clarify an ongoing and
continuing dispute as to validity and enforceability of the Agreement through the tenn of the
Agreement which ends on September 30, 2018.
61. Allied further asks the court to exercise its power of supplemental relief to carry the
declaratory judgment into effect.
62. Allied has incurred costs and reasonable and necessary attorneys' fees in seeking this
declaratory judgment.
XIII. PRELIMINARY INJUNCTIVE RELIEF
63. Plaintiff incorporates by reference the factual allegations contained in the preceding
paragraphs.
64. There is a substantial likelihood that Allied will succeed on the merits of its claims.
65. The relief sought is essential to prevent interference with Allied's constitutional,
contractual and statutory rights. Unless the relief sought is granted, Allied will suffer irreparable
injury, in that on October 10, 2015, Allied will lose its vested right to provide solid waste
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Case 7:15-cv-00459 Document 1-8 Filed in TXSD on 10/31/15 Page 15 of 19
collection and disposal service in the City of Rio Grande and receive payments due therefrom,
and will be required to remove all of its solid waste collection containers throughout the City.
Further, Allied has no adequate remedy at law, because Texas law likely prevents Allied from
recovering damages against the City for these actions and even if the law afforded such relief, it
is likely that the City does not possess the resources to make Allied whole.
66. Allied' s injury outweighs any harm that will result if a preliminary injunction is granted.
In fact, the status quo will be preserved and no harm will result.
67. Allied will suffer damages actual damages in the form of loss of goodwill, loss of
reputation, business disruption, lost revenues, lost profits, out-of-pocket expenses and other
damages which are collectively unliquidated and incapable of being easily calculated and more
significantly, incapable of being assessed against the City based on sovereign immunity. The
Texas Local Government Code Section 271.153 does not permit Allied to recover consequential
damages such as those shown above as the Texas Legislature has not waived a local
government's sovereign immunity to these types of claims. Therefore, Allied has no adequate
remedy at law and will suffer irreparable harm unless the conduct is enjoined.
68. Granting a preliminary injunction will not disserve the public interest.
69. The affidavit of Jon Deicla. attached as Exhibit "G" is offered in support of Allied's
claims for relief at law or in equity.
XIV. TEMPORARY RESTRAINING ORDER
70. Plaintiff incorporates by reference the factual allegations contained in the preceding
paragraphs.
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71. Allied has notified the City of its intent to file this request, and by copy of this petition
emailed to the City Attorney, Jacqueline Salinas, has notified the City of this request. However,
because the loss of Allied's rights is imminent and given this Court's busy docket and difficulties
of coordinating schedules, Allied cannot afford to wait to insure the City's participation going
forward.
XV. JURY DEMAND
72. Allied hereby requests a trial by jury of issues raised by this complaint that are triable to a
jury.
XVI. PRAYER
WHEREFORE PREMISES CONSIDERED, Allied prays that the City be cited to appear and
answer and after appropriate proceedings, the Court order the following relief:
1) Find and declare that the City's termination of the Agreement with Allied and award of
the Agreement to a competitor violates the "Due Process" and "Contracts" clauses of the United
States Constitution and as such, such actions terminating the Agreement are void.
2) Find and declare that the City's termination of the Agreement and award of the contract
to a competitor violates the "Due Course of Law" and "Contracts" clauses of the Texas
Constitution and as such, such actions terminating the Agreement are void.
3) Find and declare that pursuant to the Agreement, Allied is entitled to be sole provider of
the solid waste services described in the Agreement within the corporate limits of the City until
September 30, 2018. Allied requests supplemental relief as necessary for the Court to carry out
16
Case 7:15-cv-00459 Document 1-8 Filed in TXSD on 10/31/15 Page 17 of 19
this declaration.
4) Find and declare that the City's actions constitute breach of the agreement and/or
repudiation of the Agreement.
5) Exercise supplemental relief to carry its declarations into effect.
6) Grant a Temporary Injunction or Temporary Restraining Order to Allied, restraining the
City and all of its officers and employees from taking any action that is inconsistent with Allied's
contract rights as the exclusive franchisee for solid waste and disposal services, including but not
limited to allowing another party to provide those same services.
7) Grant a Temporary Injunction or Temporary Restraining Order the City and all of its
officers and employees from taking any action or inaction interfering with Allied 's right to
exclusively provide solid waste collection services in the City and receive payment therefor
during the tenn of the Agreement.
8) Award Allied its damages for breach of contract, loss of goodwill and disruption of
business in an amount exceeding the minimum jurisdictional amount for this court;
9) Award Allied its reasonable attorney's fees in bringing this action;
10) Award Allied its reasonable costs in bringing this action;
11) Award Allied pre-judgement and post-judgment interest as allowed by law.
12) Award Allied its costs of court.
13) Provide for such other and further relief at law and in equity to which Allied may be
17
Case 7:15-cv-00459 Document 1-8 Filed in TXSD on 10/31/15 Page 18of19
justly entitled.
Respectfully submitted,
Law fice of John Da....·~...... ..,
By:......c..:..._ __.::~~-~---­
John David ranz
tate Bar N . 07389200
4 oll, Suite B
McAllen, TX 78501
E-mail: jdf@johndavidfranz.com
Tel. (956) 686-3300
Fax. (956) 686-3578
ATTORNEY IN CHARGE FOR
BFI WASTE SERVICES OF TEXAS, LP,
d/b/a ALLIED WASTE SERVICES OF RIO
GRANDE VALLEY
18
Case 7:15-cv-00459 Document 1-8 Filed in TXSD on 10/31/15 Page 19 of 19
VERIFICATION
STATE OF TEXAS §
§
COUNTY OF HIDALGO §
I, Jon Deicla, state that I have read the foregoing Petition d the factual statements
contained therein are true and correct based on my knowledge and lief.
Subscribed and Sworn to before me on this~ day of October, 2015.
~'' ~4;,
1111
MELBA MARTINEZ Notary Public, State of
P.~~\
..
Notary Public, State of Texas
\~!~l-'1 MV Commission Expires My Commission Expires:
~~_..••• ~, June 04 2016
"'''II~\~ I
19
Case 7:15-cv-00459 Document 1-9 Filed in TXSD on 10/31/15 Page 1 of 9
CAUSE NO. DC-15-604
BFI WASTE SERVICES OF TEXAS, LP, § IN THE DISTRICT COURT
D/B/A ALLIED WASTE SERVICES OF §
RIO GRANDE VALLEY §
§
PLAINTIFF §
§
v. § 229th JUDICIAL DISTRICT
§
CITY OF RIO GRANDE CITY, TEXAS §
AND IT'S ELECTED OFFICIALS IN §
THEIR OFFICIAL CAPACITIES §
§
DEFENDANTS/COUNTER PLAINTIFFS § STARR COUNTY, TEXAS
DEFENDANTS, THE CITY OF RIO GRANDE CITY, TEXAS AND IT'S ELECTED
OFFICIALS' ORIGINAL ANSWER AND COUNTERCLAIM
TO THE HONORABLE DISTRICT COURT JUDGE:
NOW COME Defendants, the City of Rio Grande City, Texas and it's
Electe_d Officials: Mayor Joel Villarreat Mayor Pro-Tempore Hernan R.
Garza, III, Commissioner Arcadio J. Salinas, III, Commissioner Rey Ramirez,
and Commissioner Dave Jones, and files this, Defendants' Original Answer
and Counterclaim to Plaintiffs Original Petition, Verified Request for
Temporary and for Permanent Injunction, and respectfully shows the
following:
1
Case 7:15-cv-00459 Document 1-9 Filed in TXSD on 10/31/15 Page 2 of 9
I.
GENERAL
DENIAL
Defendants exercise its right under Texas Rule of Civil Procedure
92 to deny each and every, all and singular the allegations and the causes
of actions alleged in Plaintiff's Original Complaint, and demand strict
proof thereof.
II.
AFFIRMATIVE DEFENSES
Pleading further. and in addition to its General Denial, Defendants assert the
following affirmative defenses:
A. Defendants plead the affirmative defense of independent discovery.
B. Defendants plead the affirmative defense of unclean hands and fraud.
C. Defendants plead the affirmative defense of estoppel.
D. Defendants plead the affirmative defense of superior title and right to
possess.
E. Defendants plead the affirmative defense of abandoned opportunity.
f. Defendants plead the affirmative defense of plaintiffs fault.
G. Defendants plead the affirmative defense of pre-emption, that this suit
is intended as a restraint of trade. which is governed exclusively by TEX. Bus. &
COM. CODE § 15.05.
2
Case 7:15-cv-00459 Document 1-9 Filed in TXSD on 10/31/15 Page 3 of 9
III.
COUNTERCLAIM: BREACH OF CONTRACT
1. Plaintiffs entered into a contract with Defendant, the City of Rio
Grande City, a Texas municipality, hereinafter, the "City" on October 1, 2011 to
provide sol id waste service.
2. Defendants performed its contractual obligations.
3. Plaintiff breached the contract by (I) failing to provide brush/bulky
items pick-up constituting a material breach pursuant to Section 3.02 (a)(b) of the
contract; (2) failing to provide four annual city-wide clean-ups constituting a
material breach under Section 3.0I(d) of the contract.; and (3) by fraudulent billing the
City of Rio Grande City for services not rendered and such fraudulent biHings
totaling approximately $200,000.00. More specifically, services for collection of solid
waste for the County of Starr facilities were billed to the City and such services were not
rendered, never performed and outside the scope of this contract since Plaintiff, BFI Waste
Services of Texas, LP, D/B/A Allied Waste Services of Rio Grande Valley,
hereinafter "Allied Waste," billed for service collections which were never performed at
Starr County facilities. Rio Grande City was monthly billed an estimated $200,000.00 since
2009- fraudulently and knowingly by Plaintiff. Allied Waste- these alleged collection
services which were not rendered, yet billed; and constituting a material breach violating
Section 13 .06 of the contract. Section 13 .06 of the contract states: "The Contractor shall bill
the City for services rendered to residential units, commercial units receiving residential
3
Case 7:15-cv-00459 Document 1-9 Filed in TXSD on 10/31/15 Page 4 of 9
service, and commercial bin units .... " Plaintiff, Allied Waste fraudulently billed the City
approximately $200,000.00 for services not performed.
4. Plaintiff, Allied Waste's breaches caused Defondants, the City of Rio Grande
City, el al. injury and substantial monetary loss to its taxpayers, and even worse, unsanitary
conditions throughout the City.
IV.
COUNTERCLAIM: QUANTUM MERUJT
5. Plaintiff, Allied Waste failed to provide services in picking up
brush/bulky waste, failing to provide four annual city wide clean-ups, and
fraudulently billed the City for services not rendered or performed approximately
totaling $200,000.00.
6. Defendant, the City relied on these services for sanitary,
cleanliness of its community.
7. Plaintiff, Allied Waste had reasonable notice given by Resolution 2015-9
on April 14. 2015, passed at a public City meeting specifying ongoing
material breaches to the City and its community, See Exhibit A.
8. Plaintiff, Allied Waste had reasonable notice that Defendants expected
compensation reimbursement of the $200,000.00 billed fraudulently.
9. Plaintiff, Allied Waste's breaches caused Defendants, the City of Rio Grande
City, et al. injury and substantial monetary loss to its taxpayers, and even
worse, unsanitary conditions throughout the City.
4
Case 7:15-cv-00459 Document 1-9 Filed in TXSD on 10/31/15 Page 5 of 9
v.
COUNTERCLAIM: PROMISSORY ESTOPPEL
10. Plaintifl: Allied Waste made a promise to Defendants, the City for
specific performance of brush/bulky items pick-up; four city-wide
clean-ups annually and to "bill for services rendered," not to
fraudulently bill the City, its taxpayers, for services not provided and
not rendered.
11. Defendants, the City reasonably and substantially relied on these
promise to its detriment by having an unsanitary unclean City and
having approximately $200,00.00 taken from its taxpayers in
fraudulent bills submitted to the City by Allied Waste.
12. Defendants' reliance was foreseeable by Plaintiff.
13. Due to the Defendants, City's reliance on the contractual provisions,
the City detrimentally suffered loss monetarily and even worse,
unsanitary conditions throughout the City. Injustice can only be avoided
by the City continuing service with another provider, and Allied
Waste paying back tlie estimated $200,000.00 fraudulently billed
to tlie City and dishonestly taken from its taxpayers.
5
Case 7:15-cv-00459 Document 1-9 Filed in TXSD on 10/31/15 Page 6 of 9
VI.
FRAUD
14. Defendants, the City incorporate by reference the allegations
contained in paragraphs 1- 13 as if fully rewritten herein.
15. By their own actions, Plaintift: Allied Waste are liable for their
misrepresentations in fraudulently billing Rio Grande City for services not
rendered. In 2014, Starr County conducted an internal audit and discovered that
the City had been billing for Allied Waste trash pickup at Starr County facilities-
when in reality Allied Waste was never picking up the trash at County facilities
because the County had another solid waste contractor. (Allied Waste did not
even have bins at these County facilities yet they charged for trash pick-up.) See
Exhibit B. After receiving notice from the County, Rio Grande City looked into
the matter and discovered that Allied Waste had been submitting invoices falsely
charging for trash pick-up at Starr County Facilities since 2009. The City further
discovered that, more recently, Allied Waste was doing the same and charging for
trash pick-up at Rio Grande City Consolidated School District facilities, a well,
when they were no longer picking up trash at the school district facilities. The
City sent a Resolution to Allied Waste on April 14, 2015 putting them on notice
and mandating reimbursement of approximately $200,000.00 for the fraudulent
billings. See Exhibit A. To date, Plaintiff, Allied Waste has failed to pay back
the monies taken for services not rendered or performed. The City is currently
conducting its own internal audit to determine the exact amount of fraudulent
6
Case 7:15-cv-00459 Document 1-9 Filed in TXSD on 10/31/15 Page 7 of 9
billings submitted by Allied Waste and will forward such evidence to local law
enforcement upon completion.
16. Moreover, Plaintiff~ Allied Waste made material misrepresentations
in fraudulent billings/invoices which were false.
17. Plaintiff, Allied Waste either knew their material
misrepresentations or recklessly billed material misrepresentations as positive
assertions without knowledge of their truth.
18. Plaintiff, Allied Waste intended the City of Rio Grande City to act
on those false misrepresentations, fraudulent billings.
19. Defendants, the City took action in reliance upon Allied Waste's
misrepresentations and thereby suffered injury as a result. As a result of Plaintiff,
Allied Waste's fraud the City of Rio Grande City has suffered pecuniary harm and
requests compensatory and punitive damages in an amount to be determined at
trial.
VII.
DAMAGES
20. Plaintiff: Allied Waste's material breaches as described above
caused injury to Defondants, the City, which resulted in the following damages:
a. Loss of approximately $200,000.00 in fraudulent billing
submitted monthly to the City from 2009 through the present.
b. Unclean, unsanitary conditions throughout the City and gross
injustice to Rio Grande City and its taxpayers.
7
Case 7:15-cv-00459 Document 1-9 Filed in TXSD on 10/31/15 Page 8 of 9
21. The City of Rio Grande City, Defendant/Counter-Plaintiff, seeks
unliquidated damages within the jurisdictional limits of this Court.
VIII.
EXEMPLARY DAMAGES
22. Defendants, the City's injury resulted from Plaintiff, Allied Waste's
malice and actual fraud which entitles the City of Rio Grande City, Texas to
exemplary damages under Texas Civil Practice and Remedies Code Section
4 l.003{a).
IX.
PRAYER
23. For these reasons, the City of Rio Grande City and its elected
officials ask that justice be deemed and that it be awarded a judgment against
Allied Waste for the following:
a. Actual damages.
b. Exemplary damages.
c. Prejudgment and postjudgment interest.
d. Court costs and attorneys' fees.
WHEREFORE, premises considered, Defendants respectfully pray that
Plaintiff take nothing by this action, that all claims be dismissed with prejudice,
that the Court award Defendants its reasonable and necessary attorneys' fees and
costs of Court, that Defendants receive such other and further relief at law or in
8
Case 7:15-cv-00459 Document 1-9 Filed in TXSD on 10/31/15 Page 9 of 9
equity to which it may be justly entitled, and that Defendants be awarded actual
damages including pre- and post-judgment interest at the maximwn rate allowed by
law.
Respectfully submitted,
J q ine Lefevre Salinas
io Grande City Attorney
SOB: 24027947
507 N. Britton A venue
Rio Grande City, Texas 78582
email: salinaslawfinn@gmail.com
Phone: (956)488-1000
Facsimile: (956) 317-1269
CERTIFICATE OF SERVICE
certify that a true and correct copy of Defendants, Rio Grande City's
Response and Counter Petition have been sent via email and facsimile to Attorney of Record,
John David Franz on October 20, 2015.
9
Case 7:15-cv-00459 Document 1-10 Filed in TXSD on 10/31/15 Page 1 of 1
AGENDA OF A MEETING:GF THE
CITY COMNl°lsSION OF RID" GRANDI; CITY
MONQAY, S.EtPTE.MB~R ~a; 2o15 6:09 PM
C9 MMf$SlON C.Ji AMBE$S, CITY HALL
5332 E. Hlgbway 83 Rio. Grande city, Te~s
1. GfiNE~.AL~
A) Call to otdet! ihvoccition and Pleclge of Allegiance.
B) .Rbil tall anq flnplr19 qf qu.oruin.
C) Pul;>llc Fqh.im.
D) Reading of proclatnEJtion designating Octob.erA to October 10-as Fir!3 Prevention Week.
2. ORDlNANC.ES
A) Sec611d R.eqding .and adoption of Ordin,anc!3 No. 2015-~ ad.opting the (3eneral, Special and
Enterptise Fµnds Bud.get mr
fl&oal yeai' 20l S-2016. . .
o
B) S~c6_r.id R~adir\g anci actoptiQn of Ordh:iarics No. 2015-1 e.stabifshlng ah ad valorei'n tax
aria l~vy!i)g a malritelianbe ant! operatlolT t~ rate Elfld an Jntare·st and Sinking tl:iX tate for
tfl~ tax year enaihg 20"15.
3. EX!;CUTIVE $ .ESSJO.N, CHAPTER 5~ 1 , T.EXAS GOVERNMENT CO.DE SEGT~N 551.Q71
(C9 hs11It Git.i.or:i w ith Attorney) and SE~TION 551.072 (Deiltwrati ons regarding Roal
Prbp'erfY)
A) Dtscusslpn and possible action - Consultation with attorney regarding cause No. DC-14-
1~2 Jose De I-a Fuente "f/d/b/a Del Sol Hoines arid Del Sol Homes, LLC vs. Rio Grande
1
· Gity, Te;Id. On October 22, 2015, the district court called the temporary
injunction hearing and recessed it to continue on November 5, 2015. See Order dated October
26, 2015, attached hereto as Exhibit 3. In doing so, the district court extended the TRO until
that time. Id. The Court also ordered that the parties were to attend mediation prior to the
continuation of the temporary injunction hearing on November 5, 2015. Id.
As noted, the City purported to enter into a contract for solid waste services with Grande
Garbage. The City did not have legal grounds to tenninate the Allied contract or to enter into a
new contract with this competitor. Moreover, the City violated numerous open meeting and
notice laws and purported to enter into a new agreement with Grande Garbage behind closed
doors. Now, the City and Grande Garbage are violating the TRO by having Grande Garbage
provide service within the City limits. On October 29, 2015, Allied took photos of Grande
Garbage providing services within the City limits. See Affidavit of Jesse Sanchez, attached
hereto as Exhibit 4.
On October 31, 2015, the City removed the Starr County case to this Court. Dkt. 2.
Subsequently, Grande Garbage improperly attempted to intervene in the action. Dkt. 1. Allied
has demanded that the City stipulate to remand the case back to state court, but the City refuses
to do so. See Letter dated November 2, 2015, attached hereto as Exhibit 5.
II. THE CITY'S REMOVAL WAS INAPPROPRIATE AND THE COURT SHOULD
REMAND THE CASE.
The Contract gives Allied "the sole and exclusive franchise, license, and privilege to
provide brush/bulky waste, residential, commercial, industrial, and construction/demolition
refuse collection, removal and disposal services within the corporate limits of the City" (not
3
Case 7:15-cv-00459 Document 4 Filed in TXSD on 11/03/15 Page 4 of 8
including Starr County ofRGCCISD properties). Exhibit l, § 14.00. Despite granting this
exclusive franchise, the City has attempted to contrive reasons to terminate the Contract and
instead allow the Mayor, who also is a defendant, to repay political favors and award it to a
friend.
The Contract also contains a Section 17.00 entitled "Jurisdiction." This section provides
that disputes "shall rest in Starr County, Texas." Exhibit 1, § 17.00 (emphasis added).
No federal court sits in Starr County, Texas and the venue provision constituted a waiver
by both parties of federal jurisdiction that otherwise might exist. Several courts, including one in
this district, have addressed this precise situation and held that federal court jurisdiction does not
exist. In Collin Cnty. v. Siemens Bus. Servs., Inc., 250 F. App'x 45 (5th Cir. 2007)
(unpublished), the court affirmed remand of a diversity case where the parties' contract stated
that "venue for all actions in connection with this Agreement shall lie exclusively in Collin
County, Texas." The district court ruled that the clause "constitutes a valid waiver of federal
removal rights because there currently is no federal district courthouse within Collin County ...
." Id. at 47. The Fifth Circuit agreed and affirmed, stating that "the venue clause constituted a
waiver of federal removal rights" and further that "Collin County's lack of a federal courthouse
renders the clause at issue such a waiver." Id. at 52; see Alliance Health Grp., LLC v. Bridging
Health Options, LLC, 553 F.3d 394, 400 (Sth Cir. 2008) (holding that federal jurisdiction existed
under contract provision like the one at issue here, but only because there was a federal court
sitting in the county at issue and distinguishing Collin County as dispositive in light of that
factor).
No federal court sits in Starr County, Texas and the parties agreed that any disputes
"shall" be litigated in Starr County. As the above cases illustrate, the parties waived federal
4
Case 7:15-cv-00459 Document 4 Filed in TXSD on 11/03/15 Page 5 of B
jurisdiction and this case must be litigated in state court. The City's removal was improper and
Allied respectfully urges the Court to remand the action.
III. THE TRO SHOULD BE EXTENDED.
A court may extend a temporary restraining order for an additional 14 days " for good
cause shown" and for longer periods upon the consent of the parties. Fed. R. Civ. P. 65(b)(2).
Good cause exists when the grounds on which the court originally granted the TRO continue to
exist and the court has not yet had an opportunity to pass on the merits of a demand for a
temporary injunction and/or any pending motions. See Jones v. Belhaven Coll., 98 F. App'x
283, 284 (5th Cir. 2004) (unpublished); Flying Cross Check, L.L. C. v. Cent. Hockey League,
Inc., 153 F. Supp. 2d 1253, 1260 (D. Kan. 2001), modified (Mar. 8, 2001) (explaining that there
is little case law on "what constitutes 'good cause' for purposes of extending a Rule 65(b)
order," however, "a showing that the grounds for originally granting the temporary restraining
order continue to exist should be sufficient."); S.E.C. v. Comcoa Ltd., 887 F. Supp. 1521, 1526
(S.D. Fla.) afl'd sub nom. Levine v. Comcoa Ltd., 10 F.3d 1191 (11th Cir. 1995) ("While TRO's
cannot be extended indefinitely, they can be extended pending a ruling on a motion for a
preliminary injunction.''); see also In re Davidson, 908 F.2d 1249, 1250 (5th Cir. 1990)
(extending a temporary restraining order after hearing motions for preliminary injunction and to
dissolve the temporary restraining order presumably to decide those motions).
Jones v. Belhaven Coll., 98 F. App'x 283, 284 (5th Cir. 2004) (unpublished) is directly
on point here. In Jones, the district court extended a temporary restraining order without holding
an evidentiary hearing until it could hold a hearing on whether the court had subject matter
jurisdiction over the case following removal. Id. The Fifth Circuit affirmed the district court's
extension of the temporary restraining order explaining, "The district court did not abuse its
discretion extending the TRO as the court had the inherent authority to preserve the status quo
5
Case 7:15-cv-00459 Document 4 Filed in TXSD on 11/03/15 Page 6 of 8
until the question of its jurisdiction could be resolved." Id. (citing United States v. United Mine
Workers ofAmerica, 330 U.S. 258, 292-93, 67 S. Ct. 677, 91 L. Ed. 884 ( 1947); United States v.
Hall, 472 F.2d 261, 265 (5th Cir.1972)).
Good cause exists here. The grounds on which the court originally granted the TRO
continue to exist. The TRO intends to preserve the status quo-of Allied providing the
services-and prevent immediate and irreparable harm until the court has the opportunity to pass
on the merits of a demand for a temporary injunction. Allied has sought a temporary injunction.
The parties attended a hearing on the temporary injunction while the TRO was in effect, but the
Starr County district court recessed and continued the hearing. Because the Starr County district
court continued the temporary injunction hearing, no court has had an opportunity to pass on the
merits of the temporary injunction. As a result, the TRO must be extended.
What is worse, even more grounds now exist warranting the TRO. The TRO restrained
the City from acting in concert or participation from (i) taking any action that is inconsistent with
Allied's rights under the Contract, which includes allowing another party to provide the solid
waste services, and (ii) preventing Allied from providing the solid waste services. The City and
Grande Garbage, however, are now violating the TRO despite the fact that they know of the
TRO and that their actions are subject to it. Allied has taken photos as of October 29, 2015 of
Grande Garbage making pick-ups from Grande Garbage containers within the City, which is a
clear violation of the TRO. See Exhibit 4. In fact, in its October 31, 2015 Original Petition in
Intervention, Grande Garbage stated that "Grande Garbage at the time of [Allied's September 18,
2015 cease and desist] notice and to this day, provides solid waste collection services" to the
City and Starr County. Dkt. l, iJ 7 (emphasis added). Simply, Grande Garbage has admitted that
it is aware of the TRO, yet it continues to service the City. Id. at~~ 7, 9-10.
6
Case 7:15-cv-00459 Document 4 Filed in TXSD on 11/03/15 Page 7 of 8
IV. CONCLUSION
The City and Grande Garbage are clearly violating the TRO. Instead of complying with
the TRO, the City improperly removed this action, and Grande Garbage continues to service the
City despite knowing of the TRO. Because removal is improper, this Court should remand the
case to state court. This Court should also immediately extend the TRO pending this Court,s
decision of this motion to remand and until a court has an opportunity to consider the merits of
Allied's request for a temporary injunction.
Respectfully submitted,
Law office of John David Franz
By:~-~--=-----.;;..__ __
John Dav
Bar o. 07389200
400 N. McColl, Suite B
McAllen, TX 78501
Email: jdf@jolmdavidfranz.com
Telephone: (956) 686-3300
Facsimile: (956) 686-3578
Attorney-in-Charge for BF! Waste Services of
Texas, LP, d/b/a Allied waste Services of Rio
Grande Valley
7
Case 7:15-cv-00459 Document 4 Filed in TXSD on 11/03/15 Page 8 of 8
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on November 3, 2015, the foregoing Motion to
Remand was electronically transmitted to the Clerk's Office using the CM/ECF system for
filing and service via transmittal of a Notice of Electronic Filing to the following CM/ECF
registrants. All non-registered parties will be served by regular U.S. mail. Parties may access
this filing through the Court's electronic filing system.
Jacqueline Ruth Lefevre
612 E. Nolana, Suite 350
McAllen, TX 78504
Kennedy Felix Salinas
Salinas Law Firm
501 N. Britton Ave.
Rio Grande City, TX 78582
Email: kennedyfsalinas@gmail.com
Eloy R Garcia, Jr
118 E. Cano Street
Edinburg, TX 78539
Email: eloygarciajr@gmail.com
11007203
8
Case 7:15-cv-00459 Document 4-1 Filed in TXSD on 11/03/15 Page 1of17
I
I
THl1 srA Tll 0/1 TBXAS §
CITY OP RIO GRANDS §
COUNTY.OF STARR §
CONTRACT FOR SOLID WASTS' COLLllCTION AND DISPOSAL SIJRVICB
This Contract for SoHd Waste Collect/on snd Disposal Service tor ths City of Filo
Grande, T9xas (herelnaft8r referred to as the ''Contract") ts m11de on the '1"' day
of Dscembsr, 2011 between the City of Rio Orande, Texas (hereinafter rsforred to
as "CNy'? 101 South Washington StrHt Rio Grand~, Texas 78683 and BFI Wasttl
Ssrvfo9.s of Texas, 1.P, s D«tfaware llmltt1d partnership dlble Allied Wasl9
Servloss of Filo Grande Vsllsy (hereinafter r1fsrrsd to as ''Contraotorn) 9402 W.
Expresaway 83, Harlingen, Texas 7860.
TBRM
The term of th9 oontraot with tht1 Cfty of Rio Grands and the Contractor wllJ btl
G'ffeatlw bsglnn/ng October 1, 3011 through S11ptember 30, R018 (Contract
!
\
orlglna/ly ended Sept.ember 30, ao1s however a 3 ysar sxtenston waa approved
on February-1£., 2013)
of
The provisions this Contr.aot shall be strlotfy oomplled with Etfid conformed ta
by the Contraotor and the City, and no amendment to this Contraot shall 111
made except upon the written oansent of the City and the Contraotor. ·
No amendment to this Contract shall b6 construed to rtfeass either party from i
any obllgatlon of this Contract except as especially provld6d for In suoh iI
smendmt1nt
The Contractor shall not ba lislJ/e for thf failure to perform Its duties, In whole or
In part, If such failure Is cau1ed by catastrophe, rlotr war, gov.rnmentsl otd!r or I
regulaUon, strike, flre, sot ol Gadt lnclsm6nt weather, ohanges to city, state, or
fsderal 1119ulatlons Impacting the Confrs4tor or any similar or dffterent
aontlngenoles beyond the r1ssonsble oontror Di the Contractor.
In the event that sny provision or portion of this Contraot shall be found Invalid,
unoonstlfutlonsl, or unsnforoesble, by a oaurt of competent /urlsdlotlon, Its
lnvalldffJ{J unconstlMionaJJty, or unenforoesblllty shall not affsat remaining
provisions ol this Cantraot and the remaining provisions 5hsll oontfntlfJ In full
forc:e and effeot as If such Invalidity, unoon.stltutlcnamy or unGmtorceab/ltty
nsvsr exfstsd.
EXHIBIT
I 1
Case 7:15-cv-00459 Document 4-1 Filed in TXSD on 11/03/15 Page 2 of 17
1,00 DEFINITIONS
1.01 BIN - Mets! rsosptacle dsslqnBd to be l/fted and emptied mechsnlca/Jy for use
only at commsrolal snd lndustrltJI units.
1.02 BRUSH - TnJe trimmings, grass outtlngs, d1111.d trees or branches ther1Jof,
shrubs, ohJps shavings produced at an ooouplsd MIJ/dantlsl lot. Sl'llah generated
from lot affstlng optrsUons la not covered und'Jr the defln/1/on of brush,
1.03 BVLKY WASTE -Appllancoe such as washers, dry9r11, stoves, air oondltlonfrs
and refrigerators (provided Frson has bHn removed by s Jlaensed fao"1ty and Is
labeled ss suoh), water tanks, turnltu1s, and matfrss•uJ generated at an
ocoupfsd rt1ld1mtlal, or 1mafl oommerr::Ja/ lot
1.04 CITY· City of Rio Granda, Texss.
1.06 COMMERCIAL ANO INDUSTRIAL REFUSI! ... All bulky WAlte, oonstruotlon dabrls,
garbs~, and rubbish and stablo matter gensrated by a produoot or contraotDr st
a oammerclsl and Industrial unit.
1.06 COMMERCIAL AND INDUSTRIAi. IJNIT ... All pr1mlsH loostlont or antltles,
public or private reqwrlng rsfu• colleotron within the corporation llmlts or the
City not a rssldtmtlal unit
1.0i CONSTRUCTION DEBRIS - Waste building materfale resllltlng from oammorotat
Industrial, or rssldential oonstruQt/Ont NJmodflllng, r"psir or dsmolltlon
operations.
1.08 CONTAINERS - 96-Galfon whesl oarts tor l'Bsldentlal un, to be provldsd by
contraato1, to be used In oan}unotlon with a fully authorized plokup plan.
1.os CONTRACT DOCUMENTS - Contraotor'a propoa111, gansrsl spsclflostlons, the
oontlsiJt ond any addenda or changes to the to1agolng documents agreed to by
ths City ot Rio Grf>nt/s and th1 Conr1actor. ~ontrsct documents shall Include tho
following dooumants, and this Contraat does hereby expressly Incorporate sanh1
hel'tlln as fully as ls set forth vsrbstlm In this contmot:
(a} The Conuactor's Rate Quotations;
(b) Tho General SPfolllcatlons;
(c) The rf1solutlon of tht City of Rio t1rand9 ordsr/ng or author~lng the work and
servfo9s oontsmplated herein;
(d) Thi• Instrument; and,
(e) Any sdclends or r1hange to the foregoing documents agreed to by the parties
heteto..
1.10 CONTRACTOR - BR Wa&te Servtces of TeKas, LP, s Oelaware llmlt8d
partnership d/bla Allied Waste Servlcss of Rio Grande Valley that Is th~
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Case 7:15-cv-00459 Document 4-1 Filed in TXSD on 11/03/15 Page 3of17
oorporatlon performing refuss oollectJon and disposal undar oontraot with tl1e
City.
1.11 DEAD ANIMALS -Animals or portions thereof equal to or /sss than 20 pound• In
weight that have eJtplred from any cause, 9X119pt thosa slaughlered or kl/fed for
human use.
1.1 a DISPOSAL SITE - A rsfuse depository not limited to sanitary landfills, transfer
stat/,ms, lnolnerstora, and waste processing/separation oeintars llcsnssd,
p9rmlttsd or approvsd to rscelvo for proossslng or fins/ disposal of refuse and
dead animals by Elli governm,mtal bodies and ageno/es having /urlsdlctlon and
rsqulrfng suoh lloenses, psrmlts or approvals.
1, 13 GARBAGS ... Any and all dead animals ol /1Ssa thsn 20 pounds In weigh~ uaept
thoat slsughter9d tor human aansumpttom ev1ry s""umulstlon of wa8te
(snlmal, veget11ble and/or other matter) that results from the prepsratlon,
proaesstng, aonaumptlon dasllng In, handlll'flP packing, osnnlng, storag11i
tr11nsportauon, decay or decomposition of mfats, fish, fow~ blrda, fruits, but not
by wsy ol JlmltatJon, used tin oans and. other d1eompotabfs waste animal or
vegetable matter which ls likely to 11ttror:t fJ/tJS or rodents)/ exo9pt (In all 011se1)
any matter lnc/1,1dad In the d•llnJtJon of buJky waste, oonstructlon debrlfl, dad
animals, hazal'd0u11 wast6', rubbish or st.able matter,
1.14 HAZARDOUS WASTE - Was&a, In 1tny amount, wh/e::ll 11 daflned, character/zed or
dflg/gnatsd as hazardous by Ute Unltad States Environmental ProtaoUon Agsnoy
'"appropriate State AgomC'y by or pursuant to Alderal or Stat• law, or wasts, In
any amount, whloh Is regulated under Federal or State law. For purposes ot this
oot1trac;t, the /$rm hazardous waste shall also lnolud9 motor all, 9ssollne, paint
and paint t;ans.
1.15 LANDFILl..-A lswfuJly permfttsd sanitary lsndflll al the Contractclr'a 111Jleotlon.
1.tB PRODUCER - An occupant of a comm.erolaf and lnduwtsl 1mlt, aonstruotlon
e/ts, ~r s re11/dfmtlal unit who generates refuse.
1.17 REFUSE - Resfdentlal refuse, oomme1clsl snd Industrial refuse, brush/bulky
ltemlJ, construction debris, dlitnOlltton debris, and stable matter generafld by o
producer or oontraotor,
1.18 RESID8NTIA/.. REFUSE -All garbage and rubbish generated by a producer at 'If
rssldtmUaJ unit or 4 smsll business receiving residential service.
1.1s RESIDENTIAL UNIT-A dwelllng within the oorporate limits of the City ooouplsd
by a person or group of persona aomprlslng not more thsn four families. A
resident/al unit shell bs deemed oooupled wh•n Wtlter servloos are being
supplied therero.. A condominium dweUlng, WhtJther ot single or mu/U-level
aonstruotion, r:onslsting of four or less oontlguous or separate s/ngle4smlly
dwe11/ng within any suoh resldBntis.I unit shall be trest11d ss. a resident/al unit,
t1xaept t/Jat eeoh slngls·fam/Jy dwetllns within any such resident/al unit.
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1.20 RUBBISH .. Sse BULKY WASTE.
1.21 STABLE MATTER,, All msnure snd other wssteJ matter normally aoaumulsted Jn
or about a stable, or any animal, /Jwstook or poultry enolosure, and resulting
from tha keeping of anfmals, po111t1y or llvsgtook,
21100 SCOPS OF WORK
The work under this Contract shall consist of oommsrgfaJ, lndustrlat
oonstructlon, dtJmolltlon, brush/bulky, and refld9ntlsl solid waste oolleotlon and
disposal, lno/udlng all ll16 supervision, mat9'Jat, equipment, labor and afl other
Items nsosssary to OQl11p/et9 ssfd work In aoaordanao with the Qontract
dorJuments.
3.00 COLLSCTION OPERA TIONll
3,,01 SERVICE PROVIDED
(a) Contractor shsll provfds automated curbside oart oollt10Uon service for
ths collect/on of residential refuse to each resldentlsl unit and aommerala/
unJt rsoslvfng resident/al ssrvlcr1 one (1) time per wssk~ Ths Oontraotor shall
prov/ds spproprlat1 oontstners to eaol1 1esldantlsl aoarJcmt. Oonfratnol' shsll
pick up and remove all brush/bulky WHt.1 once evt1y month under a
schedule with the City (limit of 10 oublo yt1fda per housB per month). City
shall require by crdlnanoe that oontalne1s snd brl.l8hlbulky wasts shall bo
pla~ed st ourbsfdt1 by 7:00 s.m. on the deslgnatt1d oollsotlon day.
(b) Contractor aha.II provide dumpstar bin ooltsotlon servlaes fol' the
collection of refuse to oommerolal units, Industrial units, and multi-family
resident/al complexes of flva (6) or more dwellln9$, or any units undt1r
aons'fr"otlon acoordlng to Individual agreement.
(t:) Ourlng th paf!J.ag& unless b1ns "" located
In the alfeyway.
4.03 HOLIDAYS
T/76 foflowlng shall bt11 holldsya fot the purpoaa of 'this oontraot:
New Year's Dq
Memorial Day
Independence Day
L.sbor Day
Thanksgiving Day
Christmas Day
Contractor msy dsa#dfJ to observe any or allot the above mentlomtd holidays by
1uspsns/on of oolleotlon servlcedt on fhg holiday, but such doolsltm In no
manner rel/eve$ Contractor of Its obllgatlon to provld9 co1'11otlon ssrvloss st
residential units once per week and oommerolaJ, tndustrlsl, and construction
oustomers as per agroament with customer, Contraator wllJ furnish sdvsm16
notlos to City of whloh holldays wlfl be obaQrvsd and what th11 alternate schedulo
wlll be, Altornste sohedulea wfll be sub/eat to approval by tlis City.
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Case 7:15-cv-00459 Document 4-1 Filed in TXSD on 11/03/15 Page 7of17
4,04 COMPLAINTS
All complaints from a produoer, the publlo or thf) City shall b6 mad9 dlNJot/y to
the Contraotor and shall be glvtn prompt and aourt~ous stt4mtlon. In the oass of
alleged mlss~d sohsdu/fld ool/eatlons, the Co11trsotor fhtl/I lnvsstlgltte, antJ If
auoh allegations ara verlflect Bha/J sl'nmgt lot ths ool/er;t/on of refuse not
ool/eotfJd within 24 hours a'ftar the comp/11/nt I• reaelved.
4,011 COLLECTION IQUIPMl!Nr
The Contraotor shall provide an ectsquate numbflr of Yethlclea for rogular
aol/ocllon HrV/cSIJ, All vehf.olss, bins and other equfpm9nt shall be kept In good
rspslr, appesranoo, and In a ssn/tary oondlt/on at all tlmas, Each vehlo/e shall
have olearly visible, on each side, the ldant/flQat/on and telephone numbor of the
Contrsotor, The Contractor shall also provldt reOabla baok up veh/oles for
regulsr oolleat/on serv/Qe ~eh/cl~
4.06 DJIP/CB
Thd Corrtraotor shall maintain an oUJc;e or othsr fao/lltles through which l1a oan
bs 0011t11cted. It shall bs equipped with sufflr:l•nt telsphonss and a looal
telephone number or s toll free number, and shall have s re•ponslble peraon In
charge from 8:00 11.m. to 5:00 p.m. from Monasy through Friday, except for
holidays,
4.01 HAULING
All refu#e hauled by tfle- Contraotor shall be so contained ot enoloadd that
leaklng, spilling ar blowing sre reasonably prevented.
4.08 DISPOSAL
All refuse collected for dfsposal by the Contractors shall be hauled to a disposal
slter The chargs for dlspossl shall be Included In th6 rates set forth In the
proposal lor each oammerolal and lndustr/sl unit and l't1Sidentlal unit sfflloed by
the contractor.
4.09 NOTIFICATION
The Contreotor l}hall Initially notify alt produr:ers et oommerclal and residential
tll'tlts sbout regt1/atlons and days for scheduled refuse ooJfsctlon,
4110 POINT OF CONTACT
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Case 7:15-cv-00459 Document 4-1 Filed in TXSD on 11103/15 Page 8 of 17
All des/lngs betwesn the Oontractor and the City shall be d/reotad by the
Cantraotor to the City Manager or hlslh6r des/gna fed sppolnte91 snd by ths Gity
to the appropriate person to be dssJgnated by the Gontraotor,
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5.00 COMPMANCB WITH LAW I !
The Contractor shall r:onduot opflratlons under this Contract In ~ompllance with Il
s!J appllasble 18ws; provtdsd, hcwever, that ths a"neral 8pec/f/catlons shall
govern the obligations of the Contraotar where there exists conflloflng
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ordinances of the City on tile subject.
8.00 IJFl'l!CT/VS DA TB
This Contract shall be effective upon lh• exsoutlan of the Conttact and
performsnOB of suoh CQntrsot shall begin on the dsts as Jointly agreed upon by
the psrtfes Involved whloh wlll ensure a smooth transition of responalbllltles
between the out•golng and /n..oomlng contractor and avoid tho Interruption of
nrvlces to the i;ustotm1rs. For ths purpcae of this agresment tho err.otlve date
will be OototJer 11 a011.
7.00 NONDISCRIMINATION
Ths Qontraotor aha/I not dlsortmlnate against any persan because of race, sex,
age, crssd, color, religion or national origin.
8,,00 INDl!MN/TY
The Contraotor wlll lndemnffy and nva harml0$0 the City, /ta offlot1rs, 1tgents,
servants, and employees from end against sny snd all sult11.t sotlons, JsgaJ
procHdlng1, olslms, demands, damages, costs, e-xpenseB, and sttomeys' fess
atl1'1ng out o.f ff willful or ntJg//gent sot or omission of the Contractor, Its offloers,
agents, servants, and employees; provlried, however, that the Contraator shall
not be llsb/s for sny suits, ectlons, legal proceedings, claims, d'mand$,
damages, costs, expenses snd attorney's tees arising aui of ·ths award of this
Contraot or a wllffu/ or negligent act or omission of the City, Jts of/leers, agetJts,
servants ~nd employees,
9.00 L/CENCBS AND TAXllS
The Contractor shsll obtain all /lo~n.sss snd pormrts (other ?han the llosnse and
p~rmft grantsdby the contract} and prompUy pay all taxes required by ths State.
10~00 TERM
The Contraot .shall b9 for a tour (4) year porlod beginning upan the &xsoutlon of
Contract. The /nit/al four (4) yqar term of thla Contract csn be extended for
auoco11slvt1 addltlr:mal three (3) year terms provided both parties are In mutual
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Case 7:15-cv-00459 Document 4-1 Filed in TXSD on 11/03/15 Page 9 of 17
sgroement, Should 11 mutual agreement nol bs rtJach6d, either patty shsll notify
the other party In writing not Iese than one.,hundred slghty (180) days prior to the
expiration of the In/tis/ three (3) year tsrm or of any suooess/ve term, If /ta
lntsntton Is to terminate th/a contract. Ally such wrltt11n notice 11ht11l be servfld by
csttlfled or registered mall, return receipt raqut1sted.
11.0 INSllRANCE
Oontraotor sha11 ·at all t/m(i)S during the Contraot maintain Jn fU/l lorcs and
effect Employer's Uabt/lty, Worket~ Compensar/on {or equivalent), Publfo
Llab/Jlly, and Property Damsg1 Insurance, lnoludlng contractual I/ability
aovsragtJ far ths provision of Ssotlon VIII.
Ssfors commencement of work hereundt1r, Contractor agrHs to furnish ta
City osrtlfloate of Insurance or otl1er evidence satlsf11atory to City to the
afleeJt that suoh lnsuranc1 has bnn procured and ls In full for~.
Per the purpose ol thle Oontrac#, Contractor aha/I cs"y tha foUowlng typss of
Insurance In at least the limits speolfled b61ow:
carnsge: J,,tm1t1 ot Llabllltv;
Worker's Compensation Statutory
(or equivalent)
EmpToysr's Llablllty $500,000.00
BoclHy Jn/ury Uabillty $500,-000~00 eaoh ocavmmaa
Except Alltomobf/e $1.000,000~00 aggregate
Property Damage Llablllty $500,000.00 each occurren~e
E;caept Automobile $1, ()()0,000,fJO agg1·11gat9
Autamoblle Bodily Injury L/ablllty $600,00D.OO each oooummoe
$1,000,000,00 aggregate
Automobile Property Damag1 L/sbl/lty $500,000.00 anoh ocourrenoe i
Exoess IJmbrella Llablllty $500,000.00 each oooummo- I
Commerolal General Liability $6,000,0oo.oo
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Case 7:15-cv-00459 Document 4-1 Filed in TXSD on 11/03/15 Page 10of17
12,QO TRANSFBRABILITY OP CONTRACT
Othsr than by opsratlon of law and assignment to affiliates of Co11traotor, no
ssstgnment of thl Oontraot or any right soorulng cmder this Contrsot shall be
made In whole or In part by the Contractor without the fl;q,rsss written
consent of the Olty. In the 6>Vtmt of any a.sslgnmsnl, ths assignees shall
assume the liability al ths Contractor.
13~00 BASIS AND METHOD OF PAYMENT II
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13.01 COLLECTION
{a) For Golft1otl"n sfrvlce rsqUll'$d to be parfarmsd pursuant to Soot/on 3.01 (a}'
(c), the chargas shslf not IJXDBSd the ratss atJ fixed by the oantraot dooumsnts
as adjusted In ar:cordanoe With SsaUon 1S.Oa,
(b) Far speolal oo/lsctJon provldt1d by th1 Contraator pursuant to Saotlon :Ji01
(d), ths cl1argts sre to be nogotlatsd batwtsn ths Contrsotor and the
producer prior to co//ecllon. FOttd Sewer and Trash Collectlon Servlcss tnd'1x -s published by the U.S.
Department of Lsbo-r, and ths Gutt coast Weskly RefSll On-Highway Diesel
Prices Index es published by the Department of tEnetgy. As ot Ootober 1, 2014
and on October 1 of each subsequent twslve (12) month period thsreaftsr (the
"Rills Modfflcstlon Date'~, fees shall be lncrtased the ensuing twslv.month
period In s psn:antage amQunt equal to nlnsty psroant (90%) or ths net
psrcentsge change of the Water and Sewar and Trash Co/leot/on Serv/oes
Index, plus ten percQnt (10%) of the nst percsntege change of the Dless/
Prloss Index. All percentags ohanges sre to be aomputsd ss thl twelve
month average, ytJar over year dllferenoo between ths lndsx valufs as of tl11
month of Jun&. Annus/ly modffled rates shalt not b9 lowtr thsn prscedtng
year's rates.
(b) As soon as possible before a Flate Mod/ncstltm Date, Contractor shall send to
City a comparative statement setting out tor both the Water and Sewer and
Trash Colltotlon Services Index and the Diesel Prices Index: (I) the twalvs
month average lnd&x values ea of the month of June from the ourrent and
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Case 7:15-cv-00459 Document 4-1 Filed in TXSD on 11/03/15 Page 11of17
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prsvloua year; (II) the net percentage change; (Ill) the oomposlts peroentage
chsnge squal to ninety pero.,nt (90%) of the nst percentage In the Watc11 and
Sewsr and Tra1h Co//~otlon Servloss Index, plus ten percent (10%) of thJJ net
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psrcsntage ahange In the Dlesal Pr/ass Index: trnd {Iv) the lnor1ss9 /n the frlss I I
which may bs charged by Contractor. Jnorssses 011soted under this seotlon
shall not exceed 4% per oontract year.
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(c) In Bddltlon, to the ad/ustment desorlbed In 1s.Oa(a) and 1S.02(b), the I
Gontr111;tor may from Ume-to·tlme pet/Uon the City for unit prlr:o ad/utllmtnts
on thtJ ~as/6 of lnoreaaed d/spos11/ c:osts, ohange In disposal site, addltlonsl
dutlH and rssponslbllltles fmp"-S61d upon Oontractcr t:>y ohsngss or additions
to laws, ordlnsnoes, rulea or regulations aurranUy In effsot or additional
duties and responslbllltles lmposad by new /awe, ordinances, rulils and
regulatlona not In 9ff1at on th1 e~otlve date of th/8 Contrsot,
13,03 CITY TO ACT AS COLLECTOR. The City shall submit atatements to and
9Qfffot !ram all custamt1rf tor rasldential, oommerofaJ racslvlng reakltnUa~
and oommsro/aJ bin 1s1Vlon provldsd by the CQntraotor pursuant to Seotlon
3.01 (a) and 3.01 (b)1 Including those suoh aor:ounts that sre delinquent.
13.04 CONTRACTOR TO ACT AS COLLECTOR, The Contractor shall .submit
statements to and 0111/ect from all oonstruotlon (rOll·oH) bln servlcn provided
by the Contractor pursuant lo Ssctlon 3.01 {c), Including those accountst that
ar9 delinquent.
13.05 DELfNQUENT AND CL08HD ACCOUNTS,, The Contractor shall
dJscantlnw refuse coltaotlon se;vloes to all customers as BSC forth fn a
wrJtton notlcfl sent fp It by the City. Upon further notlflostton by the City, lhs
Contfaotar 11hall rnume refuse r:ollf.lotlon on the mrit regularly sohedulsd
collection day. The City shall Indemnify end hold the Contractor harmless
from any claims, suits, damages, llabllltles or tJXPtnsss (lnoludlng, but not
limited to expenses ol JnvutlgatJon and attorneys• fess) resulting from the
Oontlector's discontinuing ssrv/ae at any location at ths dlreetlon of ths City.
13.06 CONTRACTOR Bil.LINGS ro c1rn Within three {3) deys fol/owing the
end of each month, the City shall submit to Contractor tns numbdt of active
res/derttlal units, oommerclal units receiving ttsldentlal service, and
oommerclal bln units during the preceding montl1. The Contractor shall bit/
the City tor ssrvtcss rendered to residential units, commercial unit& receiving
resident/at service, and commercial bin units within nve (5) days following the
end of ths month of s1rv#o9 and the City shall pay the Contraator on or bffore
tha twantloth (20th) day lo/lowing the end of suoh month. Shauld Payment
not be ffl09/ved 011 or before tho twtmtfeth (20th) day followlng the end of
suoh month, a fste f6B of 1.B% Will bs chsrged cm fhfl ddflnquent amount.
Suoh bl/Jing and payments sl1all be based on th$ prlot tst8S and schedules
set forth fn the contract dooum,nts. Subsequent ta said bllllng, ths
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Case 7:15-cv-00459 Document 4-1 Filed in TXSD on 11/03/15 Page 12of17
Contraotor shall bs entltlsd to psymtmt for ssrvif.r'9S rsnderad to all l'esidsnttal
units and comme.rr:lal units snd lndustr/sl units lrraspsctlve al whetht1r or not
the City cof/ect11 from the produoer far suoh services.
13.01 FRANCH/SS FEES. City shall race/vs 6% of all revenues as s tranohlss fee.
14.00 EXCLIJSIVIJ CONTRACT
Th• Contractor shall have the soil snd exc/ufilve- frsnchlsa, llcsnsr1, and
prlv/leg• to provide brush/bulky wasta, residential, commercla4 Industrial,
and oonstru"tl"n I demolition rsfuse oo/lsotlPn, removal and disposal
services within the 4'orpo1'8le limits of the City. Tlls Conttaotor shall st 11/ l
tlmas hsvs tht rlgh1 of first refusal to thd co/ltJDl.lon of ddSd anlma/$ and 1
hoardous waste from resldsntlaf units and from aoinmerolal and Industrial I
units, i
15.00 OWNERSHIP 1I
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Title to refuse ot any dsad animals shall pails to ths Contraator when placed i
In Contractor's oolleotlon ·vehlole, removed by ths Contractor from a bin or
Contalner, or remavsd by Contractor from the customer's prem/$ea,
whlcheV9t last ocours.
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16.00 RECORDS A VAILABLI! FOR INSPIJCTION
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All l'fJcor@ mslntal11sd by the Contractor rsgstdlng p1rfonnimoe of this I
Contrsct shall be avs/lable for lm;poatlon, audit or photoaopylng by the City
during regular buslnesa hours,
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11'.00 JUll/SD/CT/ON
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Any disputes arising under this Contract shall os decided pursuant to the :!
laws of the Ststs of raxas and venue shall rest In Starr County, Taxss.
18,00 SNTIRS AGREEMENT
This Oontraot tog«her with any attachments hsrsto rspre1ents the entire
agreement between the pert/H h9Mo and sny other reptesentat/ves or
Inducements whlah mey haVEJ beten mads bstweQn the partl• and whloh are
not Included herein are void.
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19.00 TERMINATION
Not/cs of Breach - In the event of matsrlal b1·each ol any term of this
agreement, the Board of Alderman shalt by resolution adopted st a Beard of
Counollmcin me11tlng g/v11 tht oontraolot formal not/o, of the material breach
ol lhe agreement, and oantraotor'8 lalluNI to OUl'f1 suoh sta/6d oause within
(30) days upon receipt of said notice. A OQPY of the resoluUon shall be
prompUy eM/lv1rsd to tho oonflllotor via osrUlltd mall at thf1 address provided
herein. The conttaotor qhaJI hava no more than (30) oalonttar days from tha
date of de/Ivery of the resolution to oorrsot or rslleve ths matsrl11f breaoh of
the agl'9emsnt and notify the City Msnsger, In writing af the aotlon for
remGdlatlon taken by cantraotcr to aorreot or re/love ths matsrlal brsaoh of
the agreement. Should the Board of Councilmen at Its tlNQnsbls d/11ort1tlon i
detilrmlns thst Contractor fsllsd to oortect ar ml/five tho m11tsrlal braaah of
the agroemsn~ tho Soard ol Counallmen, by resolution may terminate this
agreement SuCJh tt1rmlnatlon ahafl be effeotlvo at the nesonable dlsorfiltlon or I I
the Bosrd of Counolfmen ihs best lntemt of the community and to proteot
tho health and safety al ths ,-esld6nt~. I:
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20,00 CLEAN·UPS
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In the event of a natural disaster for which the City ls deolared a disaster ares
by th$ Stattl or Federal Govemment, It shall be the City's responslblllty ID
dispose of brush and bulky wasts osused by suoh disaster; and wlll aftsmpt
In good faith to US9 C~ntraotor's asrvloss and faollltls11· if they oan btJ ussd at
a oompet/tlva oost as othsr methods available . to the City; and oan be
mutually agrt"d upon by the Contraotor and the City. This provlslort shall nol
apply to the disposal of any brush and bulky waste not caused by the natural
dlsastai ·
21.00 JND/!MNIFICATIDN
lndsmn/flcstion. To the fullest" extent p4rmltted by applicable law, th1
Contractor and Its agsnts, pa.rtn$t, 1ubcontraoto1s, and consultants
(oolleotfvG/y "lndemnltors 1') aha.JI and do agrea to Indemnify, protect, de'fend
snd hotd harmless tlUJ Owner, t11e owner's raspeo'tlvs dlrootote, sltcted
offfolnls, employees snd agsnts (col/eattvety "lndemnlteett') from and against
all els/ms. damages, lasses, liens. osuses of aotlon, suits, /udgmen'l$ snd
expenses, lncludlng attomsy less, of any nature, kind of desorlptton
(ool/Qotlvaly "Llabllllles) ol sny person or entity whomsoever arising out QI,
caused by or resulting fram the pertormsnoe of the Contraotor's services
through activities of the Contractor, Its agents, partners, auboanlraotors
and/or consuttsnts performed ucJder this Agreement, and whlolt are oaueed
by or result form frror, omission, or negligent aQt of the Contractor or of a11y
pf!Jrsan emp/oy9d or "ontraotfld by tlis Contractor provided that any suoh
Llabllltlea (1) Sl9 attrlbuhtbfe to bodily Injury. personal Injury, tlokness,
dlssase or death of any parson, or to the lnfury to or destruatlon of tangtble
rssultlng ther9from and (a) a1·s caused In whole or In part by sny negllgsnt act
13
.
1
!
I
Case 7:15-cv-00459 Document 4-1 Filed in TXSD on 11/03/15 Page 14 of 17
I I
I I .
or omission of th• Contractor, snyano dlr11otly or lndlreotly employsd by the ! I I
Contractor or anyone for whose aots the Oontrsotor may be legally liable. Ths
Contraotor shall also saw harmlass the Owner from any snd sll sxptms~
Including, but not limited to, attorney fee.s which may be lnourred by ths
I II
: ! i
Ow"er In litigation or otherwise rssfstlng said otafm or /labll/Uos which may I i I
~ i
bs lmpos1d on the Ownflr ss a result ol such act/vlt/as by the Contraator, Its '
sgemts, partners, s'Uboontreotors sndlor consultarrts. In this oonnsotlon, It Is
agJ'etJd snd understood that the Oontrsctor $hall not b• ''•ponslble for any
I
portion of the I/ability proximately causfJd by the Owner's neg/lgenos• 1
.1.2.. DO CONDITIONS OF CONTRACT
Thl.s Contract Is entered Into subjeot to the following oandltlona:
fa) Nelth1r the Contractor nor the City shall lw llsblG for t11• failure to psrlorm
their duties If such la/I'"' Is csuasd by a Cllfastrophe, riot, wsr, govemmental
order or rtJgulatlon, strike, fire, /nclemant weather, sco/dent aot of God or
ather slmllar or dlffsront oontlng"ncy beyond ths reasonable oontrol of tl1e
Oontra~tcr or City.
(b) In the event that any provision or portldn thersot of any Contract
Document shall bfl found to bs Invalid or unenloroeable, then auoh provision
or portion th11rflof ehall llfl reformed In scaordanoe with ·the sppllosble laws.
The lnvslldlf'/ or untJnforceablllty of any provision "r portion of sny Contract
Document shall not affeot the validity or anloroeablllty of any other provision
or portion of ths Contraot Documents.
14
Case 7:15-cv-00459 Document 4-1 Filed in TXSD on 11/03/15 Page 15of17
IN WITNess WHEREOF, WE, th9 oontrsctfng parties, by our duly authorized
agents, hereto sfflx our signatures and sss/s at Rio GrandfJ, Texas, as "' the
(a -1/, day of February 2013. ·
CONTRACTOR:
ATTEST:
BFJ Waste Services of T6Xss, LP, a Delswsrs
limited partnership d/b/a Allied Wasts
Servloes Qf Rio rande Valley
15
Case 7:15-cv-00459 Document 4-1 Filed in TXSD on 11/03/15 Page 16 of 17
Rate Schedule
• Prlolng Information oontalned herein fncludes a 6% franchise fee payable to the City of Aro
Grande City on a quarterly basis.
gs..Ga/1011. Qact e.rl9Jaa
• Once per week residential 9a. ganon oart: 811.81" per month
• Onoe per week second residential ga .. gaflon cart: $6.20 per month (lrmlt of one per
resfdence at this prfce}.
• Once per weel< sman commerolal 96·gaffon cart: $14.06* per month
• Once per week second small commerolal 95..galton cart: $7.30 per mon1h {llmH of on& per
unit at this price).
• Onoe per month brush/bulky waste ootlectlon: $4.64 per month.
Alo Grande City Commeroral Rates aa of Octob~ 1. 2012
...
·corrtalnel' Size t xwk 2 X \Vk 3xwk 4xwtc .- f XWk Gxwk
2cublcyard $ 61.59 $ 97,91 $ 144.38 $ · 190.73 $ 237.11 I 283.49-
~IC.m!. s 65.94 $ 127.18 $ 18S.82. ·s 246.78 s aos.so t 366.03
4 oubro y_eird 8 87,13 • 188.00 $ 248.80 $ 329.n ' 410.64 $ 4BUG
e cubtc_ v.ard $ 120.90 $ 233.4'8 $ 346.02 $ 41JS.&'3 9 671.16 • 683.71 ·--
8 cubtc_yard $ 142.53 :I 271J.e7 $ 408,83 • 041.86 s 678.11 $ 884.69
30 oublo yard f 224.08/Haul, $2B.2B/Ton Otspoear and $4.1 'tfDay Rancaa
• •Rental waived ff hauled at least twice per month.
• Rates Quoted above do not Include $1.00 per account b1111ng fee.
16
Case 7:15-cv-00459 Document 4-1 Filed in TXSD on 11/03/15 Page 17of17
January so, 2013
,u.,tt. WllSU fflflCU
re:-. 1111'111&11: i#rtli;# llbl,.,,
Ruben 0. VIiiareai • Mayor
The Cfly of Rio Grande City
101 South Washfngton St.
Flio Grande. City, Te>/di ~.,,~l~l
Jon M. oarora
General Manager
Cc: Mayor Ruben o. Villareal
Mayor Pro·teni Hernan Garza Ill
C<>mmlsslonsr Dave Jones
Commissioner Arcardlo Salinas m
Commissioner Rey Ramirez
Pf.i Dtf.l\\fel 1217
···------·---- ·----·--- ··-·· ·-····.
!.Q;...?till. '!X 78559
:>56.:!'l3 1316 / i::AX q51> "12l\.20llf1
www.dlsrinac;il com
Case 7: 15-cv-00459 Document 4-2 Filed in- TXSD on 11/03/15 Page 1 of 2
Cause No. DC-15~604
BFJ WASTESERVICES OFTBXAS, LP, § IN THB DISTRICT COURT
D/B/A ALLIED WASTE SERVICES OF §
RIO ORANDB VALLEY §
§
Plaintiff §
§
v.. § 2291h JUDICIAL DISTRICT
§
§
§
CITY OF RIO ORANDE1 TEXAS §
AND JT'S ELECTED OPPlCIALS l'N §
THEIR OFFICIAL CAPACITIES §
Defendants § STARR COUNTY, TEXAS
TEMPORARY RESTRAINING ORDER
This Court, having considered BFI WASTE SERVICES OF TEXAS, LP, D/B/A ALLJED
WASTE SBRVICES OP RIO ORANDB VALLEY's C'AIUed,,) Petition for a Temporary Restraining
Order 8Jld all evidence and arguments of counsel with/without notice to CITY OF RIO GRANDE and
its ELECTED OFPICIALS ("Chy") is of the opinion that immediato and irrepa~bl~ injury, loss, or
damage wIJI result to Allled before dle City of Rio Orande catt be served with notice end a hearing held
on the application unless the City of Rio Grande and its elected officials are restralned because Allied
has presented evidence of an exclusive contract to collect and dispose of solid waste in the City until
September 30~ 2018 as well as evidence of:
1) The City's actions deprf vfng Allled of State and Federal Constitutlonal Rights without due
process of law;
2) The City's actions depriving AlUcd of protections afforded by the Contraets Clauses of the
State and Federal ConstitUtlons in that Allied baa a vested right in a contract and the City b
attempting to violate AJlied's right by conduct that does not advance any legitimate public
purpose;
3} The City's actions depriving Allied of due course of law as afforded by the Texas
Constitution wberein oitizeDB such as Allied are protected from government actions taken
without due course of law;
4) The City's actions depriving Allled of due process of law as afforded by the 14th Amendment
to the U.S. Constitution which protects A!lied fro111 actions taken to deprive Alllod of its
rights without duo process of lnw; and
EXHIBIT
2
case 7:15-cv-00459 Document 4-2 Filed in TXSD on 11/03/15 Page 2 of 2
. "
. '"
S) The City's actions breaching an agreement which wm oause AllJed bTeparabie hann ln that
Allied will be Jeft with n0 adequate remedy at law if the City Is not enjoined from breaching
Its agreement wfth Allied; JT JS THEREFORE,
~~._ORDERED tbat the Clerk of this Court issue a Temporary Reatraining Order, operative until tho
-~-Q\~°"- day of October, 2015, arj.d pending the hearing ordered beJow, restraining the City of Rio
Grande or any of its officers. agents, servants, employees. attomeys, rcpresontaUves, or any persons In
active concort or participation with them who receive actual notice of thls Order from
A. Taking any aotion that is inconsistent with AllJed's contract rights as the exclusive
franchisee for solid waste and disposal services, including but not limited to allowing another
party to provide those same services;
B. Preventing Allied from providing those services and from talcing atly other action ()l'
inaction lntotfering with Alli~d's rlghtto exclusively provide solid waste colJectlon servlces in
the City and receive payment:therefor during th" tenn of the Agreement. Allied shaJI, prior to
the issuance::f~traJnjng order, tiJe with the Clerk a bond executed by PJaintJff Jn the sum
of$ \Q ~ .·,payable to City of Rio Grande, approved and conditioned as the
law requhs. Jt is, further, . ·
ORDERED that AIJied's Pt!tltlOA,[o.r Llemporary Injunction, as contained In .!t.~ verified
Original Petition.. will .be heard in t:he MC\:U\ Judielal mstrict Court on the ..Al~ day of
October, 2015, at .:2 1.00o'.olock _ fi ...m.
SIGNED this~ day of Octotjer, 20 l S.
Judge Presiding
Cc: Law Office of John David Franz Jdf@lohndavfdfranz,~m
400 N. McColl, Suite B
McAllen, TX 76601
Case 7:15-cv-00459 Document 4-3 Filed in TXSD on 11/03/15 Page 1of1
Causo No. DC.1$-604
BPI WASTB SBRVICBS OF TBXAS, LP, § lNTHBDJSTlUC? COUllT
DIS/A.ALLIED WASTB SBRVICBS OP I
RIO ORANDI VALLBY §
f
Plafntlft' I
I
v. I 229cJa JUDICIAL DISTRicr
I
I
§
cnY OPR.IO ORANDB. TBXAS I
AND IT,S BLBCTSD OFFICIALS IN I
TRBIJl OFFICIAL CAPAClTIBS §
Defendanll I STARR COUNTY. TEXAS
gRDER
1'he Court, having called Plaint1ft'BFl WASTE S!RVIOBS OF TBXAS, LP, DIB/A ALLIED
WASTB S.BRVICBS OP RIO GRAND! VALLBY'a ("A1Uod'9) Application for Temporary lojunctlou,
and tha Court havtns recessed the heerlu1 untll l 1:00 A.M. on November 5, 2015, fs of the opinion that
the Temporary Rmb'alnfns Otdet in cdfaot in this oae should ba extended. It ts. theroforo,
OlDBRBD that tho headog on Allled's Appllcatloa fot Temponuy Injunction ls ncessed and
nat to continue on tho $11 day ofNovember, 2015 at 11:00 A.M. in tho~ J'udlo!al Dlatrld Court of
Stmr Count)', Texas, Biid tbat t1le Temponry B.estndnioa Order iuued in this cue be continued lo tbll •
tlnao,~~tlm..~ ~~"'° ~~
SIONBDthla ~.day of October, 'At>\5 .at_w..Jl_.m. 'J1
')\\. ~~ ~ -"~"
~~1!1'7111Jud1clal
District Court of'Camerou County, Texas
EXHIBIT
I ----- 3
Case 7:15-cv-00459 Document 4-4 Filed in TXSD on 11/03/15 Page 1 of 3
STATE OF TEXAS §
§
COUNTY OF HIDALGO §
AFFIDAVIT of JESSE SANCHEZ
BEFORE ME, the undersigned authority, personally appeared JESSE SANCHEZ, who
being by me duly sworn deposed as follows:
My name is JESSE SANCHEZ. I am the Operations Supervisor for BFI Waste Services
Of Texas, LP, D/B/A Allied Waste Services of Rio Grande Valley. I am of sound mind, capable
of making this affidavit, and personally acquainted with the facts herein stated.
I am an Operations Supervisor for BFI Waste Services OfTexas, LP, D/B/A Allied Waste
Services of Rio Grande Valley ("Allied"). Part of my responsibility is to supervise solid waste
collection and disposal in the City of Rio Grande. Attached to this affidavit which is part of
Allied's Motion to Remand and Request to Extend Temporary Restraining Order hereto are
Exhibits A and 8. These exhibits are each copies of photographs I took in the City of Rio
Grande on October 29, 2015 at a time when it was my understanding that the City of Rio Grande
was prohibited by a State District Court Judge's Order from allowing any solid waste collection
company other than Allied from collecting solid waste in the City of Rio Grande. Each of the
photographs clearly and accurately depict a Grande Garbage Collection Company truck
collecting solid waste at SDI Operating, 5270 East U.S. Highway 83, a commercial location
within the corporate limits of the City of Rio Grande on October 29, 2015.
Operations Supervisor
SUBSCRIBED AND SWORN TO before~ the ?i J day ofNovember, 2015.
. ~~
(I)
~~ MELBA MARTINEZ Notary Public in and for State of Texas
~ Notary Publlc, State of Texas \ · ., o 'A
~· } MvCommlaston Expires t My Commission Expires: 0 -{)&.\· LJV \ ~
Of., June 04, 2016
EXHIBIT
Jesse Sanchez Affidavit I 4
Case 7:15-cv-00459 Document 4-5 Filed in TXSD on 11/03/15 Page 1of4
LAW OFFICES OF
JOHN 0AVID FRANZ
400 N. McCOLL. SUIT5 B
MoAU.EN, TX 78601
BOARD CERTIFfED
PERSONAL INJURY TRIAL LAW (966) B8&3SCO
TS190 F.3d 881, 885 (8th Cir.1999) (quoting Granny.Goose Food$, Inc. v. Teamsters,
415 U.S. 423, 437, 94 S. Ct. 1113, 39 L.Ed.2d 435,19.74)). In other words, "after
removal, the federal court merely takes up where ttio state. oourt left off." Alpert v.
Resolution Trust Corp., 142 F.R.D. 486, 487 (D.Cbto.1992). The court "must apply the
Federal Rules of Civil Procedure and treat the case: as tliough it were originally
commenced here." Bruley v. Lincoln Property Co., Inc., 140 F.R.D. 452, 453
(D.Colo.1991). Consequently "[a]n ex. parte temp'omry restraining order issued by a state
court prior to removal remains in force after remo-Ml·na:.Jonger than"it would have
remained in effect under state law, but in no eventlitieB the order remain in force longer
than the time limitations imposed by Rule 65(b), measured froni the date of removal.''
Granny Goose Foods, 415 U.S. at 439-40, 94 S. Ct. 1113: Rothner v. City of Chicago,
879 F.2d 1402, 1418 (7th Cir.1989); Carrabus v. Schneider, 1t1.F.Supp.2d204, 210-11
(E.D.N.Y.2000).
• .~ • ••• • I I •
Therefore, Allied will be present at Mediator Gil Peralez' office at noon on November 4,
2015 to mediate the case as or4ered by Ju4ge Lopez. · I trust that Rio Grande City and. each of tbe
defendants will be pi;esellt for the -rnediation: ordered by JU;dge Lopez aqd 11gre0d to by Ms.
Salinas as attomey for Rio Grande City and its ~looted ofl;i9~a,Js•. ·· . . : ~·
•. ~ ·: . .. ·. . . .• . =~
. ;.· .. . ' ..
.. ...
JDF/mm ~;....
. . ... . .
.~.· ::
Encl. Orcler Extending .TRO and Orderh.ig Me4iation ... : .· .. ·
.. .\ ..... , ,. ; ... : • :•... ·~ •• • ••• • • -s. • •• • • : ~
Cc: Gilberto Hinojosa ·:Vla·Etnail .. -. : . : .. .. ·. .... ~ .
Gil Peralez . Via Email ••••• : • •• f~· •• •, •• ~· .::..:··. • • • • • :
. ........ ·~ ·:. ·: . . :'•\ '"'' . . ~ .··
.·~ .. . .:•... . .~·; . ~ .. .
.·.• .- . . .. t .· ; <~. .... ~ .
.... : : . .. . . ~ ;· . : ... ~ ..
•, o' • ,':.' ';: I ': • ,•\' : •
. ·).:... ~ : I • .
Case 7:15-cv-00459 Document 4-5 Filed in TXSD on 11/03/15 Page 3 of 4
Causo No. D~1$.604
BPI WASTS SBR.VICBS OF TBXAS, J:..P, f IN THB DlSTllCf COURT
DIBIAAtLDm WASTB SBR.VICBS OP f
RIO ORANDB VAWY I
t
PlalaUff f
f
v. I ~ IUDlOIAL DISTRicr
f
I
I
crrY OP 1lIO ORANDB, TBXAS I
AND lT,S BLBCl'BD OFPIOLWJ lN I
mBIR OPPICIALCAPACmBS f
Defeadama I STARR COUNTY, TBXA8
ORDXB
Case 7:15-cv-00459 Document 4-5 Filed in TXSD on 11/03/15 Page 4 of 4
John David Franz
From: John David Franz
Sent: Wednesday, October 28, 2015 6;22 PM
To: 'gpp@peralezfranzlaw.com•; 'Jacqueline Sallnas•; Gilberto Hinojosa
(ghl nojosa@ghlnojosalaw.net}
Subject: Mediation Date: November 4, 2015 Noon
Counselors: Mr. GU Peralez has agreed to mediate our case starting at noon on November 4, 2015 at his McAllen office
on Dove Street. I trust we wlll have representatives from each of the parties with authority to settle. Mr. Peralez will
have his office send out the necessary documents to each of us. Ms.Salinas has agreed to the date as has Mr.
Hinojosa. We are moving forward with mediaton on that date. JD
1
Case 7:15-cv-00459 Document 4-6 Filed in TXSD on 11/03/15 Page 1 of 1
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION
BFI WASTE SERVICES OF TEXAS. LP, §
d/b/e ALLIED WASTE SERVICES OF §
RIO GRANDE VALLEY, § Case No. 7: 15-cv-00459
§
Pie inti ff, §
§ Judge Micaela A1varez
v. §
§
CITY OF RIO GRANDE CITY, TEXAS §
AND IT'S ELECTED OFFICIALS IN §
THEIR OFFICIAL CAPACITIES, §
§
Defendants. §
ORDER
Pie inti ff has asked th is Court to expedite consideration of Plaintifrs Motion to Remand
end Request to Extend Temporary Restraining Order. Af'ter consideration of the Motion, and
good cause shown, there appearing no just reason for delay,
IT IS HEREBY ORDERED that Plaintifrs Motion to Remand and Request to Extend
Temporary Restra In Ing Order be set for hearing on an expedited basis.
The Court hereby sets th is matter for consideration on the __ day of November, 2015
at _ _ o'clock __ . m. in the LJ .S. District Court, Bentsen Tow er, gtn Floor, 1701 W. Business
Highway 83, McAllen, Texes.
Signed th is _ _ day of' November, 2015.
Hon. Micaela Alvarez
1
Case 7:15-cv-00459 Document 4-7 Filed in TXSD on 11/03/15 Page 1of1
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION
BFI WASTE SERVICES OF TEXAS, LP, §
d/b/a ALLIED WASTE SERVICES OF §
RIO GRANDE VALLEY, § Case No. 7:15-cv-00459
§
Pia intiff, §
§ Judge Micaela A1varez
v. §
§
CITY OF RIO GRANDE CITY, TEXAS §
AND ITS ELECTED OFFICIALS IN §
THEIR OFFICIAL CAPACITIES, §
§
Defendants. §
ORDER
Having considered Plaintiffs Motion to Remand and Request to Extend Temporary
Restra In ing Order, and good cause appearing,
IT IS HEREBY ORDERED that Pia in tiff's Request to Extend Temporary Restraining
Order is granted, and that the Temporary Restraining Order Issued by the Starr County District
Court in this case be continued in full force and effect until the merits of Allied's Application for
Temporary Injunction have been decided.
IT IS FURTHER ORDERED that Plaintiffs Motion to Remand is set for hearing on the
__ day ofNovember, 2015 at _ _ o'clock __.m. in the U.S. District Court, Bentsen
Tow er, g•n Floor, 1701 W. Business Highway 83, McAllen, Texes.
Signed th is _ _ day of November, 2015.
Hon. Micaela Alvarez
1
EXHIBIT C
INTERVENER/PLAINTIFF GRANDE GARBAGE COLLECTION CO. AND DEFENDANTS CITY OF
RIO GRANDE, TEXAS AND ITS ELECTED OFFICIALS IN THEIR INDIVIDUAL CAPACITIES’
JOINT NOTICE OF INTERLOCUTORY APPEAL EXHIBIT C
Case 7:15-cv-00459 Document 9 Filed in TXSD on 11/09/15 Page 1of3
United States District Court
Southam District of Texas
ENTERED
UNITED STATES DISTRICT COURT November 10, 2015
David J. Bradley, Clerk
SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION
BFI WASTE SERVICES OF TEXAS, L.P., §
§
Plaintiff, §
VS. § CIVIL ACTION NO. 7:15-CV-459
§
CITY OF RIO GRANDE CITY, TEXAS, §
~~ §
§
Defendants.
ORDER
Pending before the Court is BPI Waste Services of Texas, L.P. 's ("Plaintiff") motion to
remand. 1 After considering the motion and relevant authorities, the Court GRANTS the motion.
I. Background
On October 8, 2015 Allied Waste Services ("Plaintiff') filed a petition for declaratory
judgment in state court against City of Rio Grande ("RGC") and certain elected officials of Rio
Grande City (collectively "Defendants"). 2 According to Plaintiff, October 1, 2011 is the effective
date of an agreement entered into by Plaintiff and RGC in which Plaintiff alleges it was granted
the exclusive license to perform solid waste collection services within the corporate limits of
RGC through 2018. 3 Plaintiff made various allegations in its original petition, including that
RGC breached the agreement by terminating it, violated the contract clause of the U.S.
Constitution, and violated of the 14th Amendment.4
1
Dkt No. 4 ("Motion").
2
Dkt. No. 5, Exh. 1 (Original Petition).
3
Id.
4
Id.
1/3
Case 7:15-cv-00459 Document 9 Filed in TXSD on 11/09/15 Page 2 of 3
On October 31, 2015, the case was removed to this Court by Defendants. As basis for the
removal, Defendants assert that jurisdiction is proper based on diversity and because Plaintiff
alleges that RGC violated the contract clause of the U.S. Constitution and the 14th Amendment. 5
The Court now addresses the merits of Plaintiff's motion.
II. Discussion
As basis for the requested relief, Plaintiff points to a venue clause provision in Plaintiff
and RGC's agreement which states "venue shall rest in Starr County, Texas."6 The Fifth Circuit
has held that in order "[f]or a contractual clause to prevent a party from exercising its right to
removal, the clause must give a clear and unequivocal waiver of that right. A party may waive its
rights by ... establishing an exclusive venue within the contract."7 Additionally, "contractual
clauses purporting to waive federal jurisdiction must be mandatory .... [And such clauses] will
be enforced only if enforcement is reasonable." 8
In the instant case, the Court is convinced that remand is proper. The plain text of the
clause at issue clearly establishes that the clause is mandatory. Additionally, in Collin County,
the Fifth Circuit found that a clause in the parties' agreement stipulating that venue for all actions
between the parties shall lie in Collin County, Texas, constituted an effective waiver of federal
removal rights because there was no federal courthouse in Collin County. 9 Here, similar to the
facts in Collin County, Starr County is also without a federal courthouse. Lastly, there is nothing
before the Court indicating that enforcement of the clause would be unreasonable. Plaintiff is
merely asking the Court to enforce a provision which would in effect send the parties back to the
state court in the county where RGC is located. Thus, the Court believes that the venue clause at
s Dkt. No. 2 at ~ 3-4.
6
Dkt. No. 5, Exh. 1p.12.
7
City ofNew Orleans v. Mun. Admin. Servs., Inc., 376 F.3d 501, 504 (5th Cir.2004).
8
Collin County v. Siemens Bus. Servs., Inc., 250 Fed.Appx. 45, 51 (5th Cir.2007).
9
Id. at 52.
2/3
Case 7:15-cv-00459 Document 9 Filed in TXSD on 11/09/15 Page 3 of 3
issue in the instant case constitutes an effective waiver of removal rights. Accordingly, the Court
GRANTS Plaintiff's motion.
ill.Holding
For the foregoing reasons, the Court GRANTS Plaintiff's motion to remand and
REMANDS this case to the 229th Judicial District Court of Starr County, Texas.
IT IS SO ORDERED.
DONE at McAllen, Texas, this 9th day o
3/3
EXHIBIT D
INTERVENER/PLAINTIFF GRANDE GARBAGE COLLECTION CO. AND DEFENDANTS CITY OF
RIO GRANDE, TEXAS AND ITS ELECTED OFFICIALS IN THEIR INDIVIDUAL CAPACITIES’
JOINT NOTICE OF INTERLOCUTORY APPEAL EXHIBIT D
CAUSE NO. DC-15-604
BFI WASTE SERVICES OF TEXAS, LP, § IN THE DISTRICT COURT
DIBIA ALLIED WASTE SERVICES OF §
RIO GRANDE VALLEY §
§
Plaintiff §
§
v. § 229th JUDICIAL DISTRICT
§
§
§
CITY OF RIO GRANDE, TEXAS §
AND IT'S ELECTED OFFICIALS IN §
THEIR OFFICIAL CAP A CITIES §
Defendants § ST ARR COUNTY, TEXAS
TEMPORARY INJUNCTION ORDER
On October 22, 2015 the Honorable Migdalia Lopez, Judge of the 197'11 Judicial District
Court of Cameron County, Texas, having been assigned to preside over this cause by Order of
Texas Supreme Court Justice Nathan Hecht, considered the Plaintiffs application for a temporary
injunction. PlaintiffBFI Waste Services of Texas, LP D/B/A Allied Waste Services of Rio Grande
Valley ("Allied") appeared through its representative, Jon Deicla and by and through its attorneys
of record and Defendants, City of Rio Grande, Joel Villarreal, Hernan Garza, III, Arcadia Salinas,
Rey Ramirez and Dave Jones in their official capacities as elected officials of the City of Rio
Grande appeared by and through their attorneys ofrecord.
The court, after reviewing the pleadings on file, having considered the witness testimony
of Juan Zuniga, Maria Becerra and Rey Alegria, having admitted in evidence nineteen (19) exhibits
offered by Allied and considered same, as well as the evidence submitted by the City at the
temporary injunction hearing; and furthermore, considering that the City has not had an
opportunity to conclude its presentation in opposition to Allied' s application, the Court
conditionally grants Allied's request for Temporary Injunction pending the conclusion of the
Temporary Injunction Hearing. The Court is of the opinion that Plaintiff has presented sufficient
evidence that it will suffer an immediate and irreparable harm and injury if a temporary injunction
is not granted against Defendants and that Plaintiff has no other adequate remedy at law. It also
appears from the facts set forth in Plaintiffs verified original petition as well as the evidence
presented by the witnesses at the Temporary Injm1ction hearing that Plaintiff will likely be
successful on the merits as to its claims against Defendants, and that unless the court issues a
temporary injunction order, subject to the City's right to present evidence at a later date, Allied is
entitled to a temporary injunction enjoining Defendants, their agents, servants, employees,
representatives, attorneys and those persons in active concert or participation with them from
committing any of the acts described below:
A. Taking any action that is inconsistent with Allied's contract rights as the exclusive
franchisee for solid waste and disposal services, including but not limited to allowing
another party to provide those same services;
B. Preventing Allied from providing those services and from taking any other action
or inaction interfering with Allied's right to exclusively provide solid waste collection
services in the City of Rio Grande and receive payment therefor during the term of the
Agreement.
Unless enjoined, such acts may, and probably will, be committed by Defendants. Injunctive
relief is sought for the purpose of maintaining the status quo and preventing the destruction and/or
dissipation of Plaintiffs vested property right. If conm1ission of the acts described above is not
restrained m1d enjoined immediately, Plaintiff will suffer immediate irreparable injury because
without such relief Plaintiff probably will be deprived of a property interest by the City and its
officials without due process of law and will probably be disfranchised of a property right without
due course oflaw. If Defendants are not enjoined, there is a substantial likelihood that Defendants
will engage in actions that will cause irreparable harm to Plaintiff The Court does find that
Plaintiff will likely suffer irreparable harm if Defendants are not enjoined in that Plainiffwill face
logistical challenges of an interruption of Allied's service to over 5,000 residential accounts and
over 430 commercial accounts in Rio Grande City and the likely loss of goodwill and
disparagement of Allied's business resulting from Defendants arbitrary and unreasonable actions,
loss of goodwill and reputation as a result of a public campaign by Defendants to disparage Allied
and further, Allied likely has no adequate remedy at law for losses such as consequential damages
or damages for disparagement resulting from actions of Defendants. The court finds that no other
remedy will fully and adequately preserve Plaintiffs rights and property. For all of the foregoing
reasons, the court is of the opinion that Plaintiff is entitled to a Temporary Injunction Order as
stated he~n · ,. .
~ocke Co~onference is ordered to be held at // ·30 o'clock fl_.
m. on the \ S\tl
day of 9.-CO ~ , 2015 to schedule the conclusion of the Temporary Injunction
hearing.
The Court hereby orders that Allied's $1,000 bond currently on file in relation to the
previously granted Temporary Restraining Order remain on file as bond for this Temporary
Injunction.
The Court further orders that the parties be allowed to conduct discovery on an expedited
basis between the date of this order and the date the the hearing for Temporary Injunction is
ultimately concluded.
SIGNED this~ day of November, 2015.
Hon. dalia Lopez, Judge
197111 Judicial District Court of Texas