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

• Court: Court of Appeals of Texas
• Decided: November 18, 2015
• Docket: 04-15-00729-CV
• Status: Published

Opinion

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.

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

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. ,....-- I /~ ',. J# ,

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Holly o ; Guerrero City se cz:e~

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... Case 7:15-cv-00459 Document 1-1 Filed in TXSD on 10/31/15 Page 3 of 4

AGENDA OF A REGULAR MEETING OF THE CITY COM MISSION OF RIO GRAND E CITY WEDNESDAY, SEPTEMBER 9, 2015 6:00 PM COMM ISS ION CHAMBERS , CITY HALL 5332 E. Highway 83 Rio Grande Cit y, Texas

1. GEN ERA L: A) Call to order, invocation and Pledge of Allegiance. B) Roll call and finding of quorum. C) Public Forum. D) Departmental Reports.

2. CONSENT AGEND A: (Alf matters /isled under Consent Agenda arc considered to be routine by t/1e Commission and will bo onacted by one motion. There will be no separate discussion of t/iese items; however, if discussion is desired, I/wt itom{s) will be removed from the Consent Agenda and will be considered soparalcly.) A) Approval of Departmental Travel Requests. B) Approval of EDC action from meeting of September 1, 2015.

3. ORDINANCES A) Second Reading and adoption of Ordinance No. 2015-8 amending Ordinance 2007-12 Municipal Solid Waste. B) First Reading and approval of Ordinance No. 2015-9 adopting the General, Special and Enterprise Funds Budget for fiscal year 20 15-2016. C) First Reading and approval of Ordinance No. 2015- 10 establishing an ad valorern tax and levying a maintenance and operation tax rate and an interest and sinking tax rate for the tax year ending 2015.

4. RESOLUTIONS A) Discussion and possible action to approve Resolution No. 2015-28 authorizing the submission of a grant application for the 2016 Local Border Security Program {LBSP), Office of the Governor, Criminal Justice Division. B) Discussion and possible action to approve Resolution No. 2015-29 authorizing the submission of an application for funding assistance to the Texas Water Development Board for the planning, design and construction of an eleva ted water tank to re place the existing tank on Garcia Street.

5. CONTRACTS AND AGREEMENTS A) Discussion and possible action to approve a Professional Services Agreement with Hollis Rutledge & Associates, Inc. to begin November 20, 2015 with a one year option to renew. B) Discussion and possible action to approve a Lease Agreement wi th the RGC EDC for premises at 406 E. Main Street for the Main Street Coordinator office. C) Discussion and possible action to approve a Lease Agreement with Behavioral Health Solutions of South Texas for premises at 405 E. Mirasoles, Suite A., Lopez-Tijerina- Complex. D) Discussion and possible action to approve a Memorandum of Understanding with the U.S. Fish and Wildlife Service for the use of Fire Station #2. E) Discussion and possible action to approve the Engagement of Bond Counsel agreement with The J. Ramirez Law Firm.

6. PLANNING A) Discussion and possible action on setback and parking variance request by Verdad Real Estate for a proposed Carl's Jr Restaurant to be located at 4011 E Hwy 83. B) Discussion and possible action on request by Rio Delta Engineering for final approval of the Laredo Estates Subdivision Phase 1. C) Discussion and possible action on request by Melden and Hunt for preliminary and fi nal approval of the Divina Descanso Subdivision. D) Discussion and possible action on req uest by Mas Engineering for preliminary and final approval of the Jesus Garcia Commercial Subdivision.

City Commission 9-9-2015 Case 7:15-cv-00459 Document 1-1 Filed in TXSD on 10/31/15 Page 4 of 4 ...

7. 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-14- 182 Jose De La Fuente f/d/b/a Del Sol Homes and Del Sol Homes, LLC vs. Rio Grande City, Texas, 229th 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, 381'1 District Court of Starr County, Texas. C) Discussion and possible action - Consultation with attorney regarding Cause No. DC-15- 471, Maria Julissa Pena, et al v. Rio Grande City, Texas, 381 81 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.

8. ADJOURNMENT

With regard to any ltom. Cha City Commission may taku various actions lncludlng but not limited to ruachoduUng an Item In Its cnUntty for a future data or tlma. The City Commission may elect to go Into Executive Se$Glon on any Item listed llbova cs authorized by tho Texas Govammant Coda Scc:Uons 551.071(Consultatlon with Attomay). 551.072 (Dcllboratlons ragardfng Real Property). 551.072 (DcllbonsUons ragardtng Gifts' and Donations), 651,074 (Poraonnal Mattora}. 551.076 (Dellbonstfons regarding Security Dovtcos} and 651.087 (Dellberatlcna regarding Economic Development NegaUatlcns).

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 4th 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 s91 of tbe:e)(Ss Government C~de.

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City Commission 9-9-2015 Case 7:15-cv-00459 Document 1-2 Filed in TXS D on 10/31/15 Page 1 of 35

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 9, 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 s et my hand and affixed the official seal of said office this 28th day of October, 2015. I I 1 c::/!.;f!cz,,fj,'U._r~ / i1ll Holly D. p uerrero \ City Sec ~etary .' _/

City Hall at 5332 E. U.S. Highway 83 / Rio Grande City. Texas 78582 956-487-0672 / Fax 956-7 16-8899 www.ci tyofrgc.com Case 7:15-cv-00459 Document 1-2 Filed in TXSD on 10/31/15 Pag~ 2 ·o~ 35 .

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Officials Present: Mayor Joel Villarreal Mayor Pro-Tern Hernan R. Garza, Ill Commissioner Arcadia J. Salinas, Ill Comm issione r Rey Ramirez Commissioner Dave Jones Deputy City Manager Elisa Y. Beas City Attorney Kennedy Salinas City Secretary Holly D. Guerrero

CALL TO ORDER (Item 1 Al Mayor Vi ll arrea l called the meeting to o rd er at 6:00 pm; t he invocation was given and the assemb ly recited the U.S and Texas Pledg e of Allegiance.

ROLL CALL (Item 1 Bl The roll was ca lled and a quorum was declared.

PUBLIC FORUM (Item 1Cl No one requested to address the Commission on the Public Forum.

DEPARTMENTAL REPORTS (Item 10) Departm ents submitting reports in th e Agend a Packet were: Police Dept.; Fire Dept.; Municipal Court; Public Works; Planning I Code Enforcement and Animal Control; Parks and Recreation; Finance; Municipal Library; Personnel; and Tourism and Heritage. The Public Utility Department distributed a report at the meeting. The following items were highlighted by department: • Public Works - Mr. Guerra, Director, is plannin g the installation of 22 new streetlights, mostly in the Los Trevinos area. Please see Exhibit A detailing the location of the proposed new streetlights. 111 o Municipal Library - The library will be cele brating its' 25 year anniversary this month. 0 Tourism & Heritage - The Viva Mexico event w ill be held on Sept. 12 at Britton Ave. Planning is ongoing for the Halloween in the Park event. • Parks & Rec - Registration for Pee Wee football has increased. The re- surfacing of the basketball court at Villarreal Park has begun. 0 Public Utility - Delinqu ent accounts are being reduced. o Police Dept. - Ten new body cameras hav e bee n ordered. • Fire Dept. - Working with FEM A on the disaster relief funding from the May flooding . Fire Preventio n Week c oming up in October. • EDC - Ms. Guillen and Ms. Beas are worldng with Lewis Zwick and Larry Gonzalez of Plains Capita l Bani< on a development pl an for the area. 0 Animal Control - Had a surprise v isit from the state to inspect the kennel; no demerits were assessed . • Municipal Court - Recommended favorable on item SC of this agenda. Announced that Mr. R.C. Salinas wi ll be worl

The fu ll discussion of this item is on file at the City Secretary's office; City Commission 9-9-2015 audio recording.

City Commission 9-9-201 5 Case 7:15-cv-00459 Document 1-2 Filed in TXSD on 10/31/15 Page 4 of 35

CONSENT AGENDA lltems 2A. 28) All matters on the Consent Agenda were considered to be routine by the Commission and were enacted by one motion. There was no separate discussion of the items. Cmr. Salinas moved to approve the Consent Agenda items and Cmr. Ramirez seconded the motion. The motion passed unanimously. The items approved were as follows: 2A) Departmental Travel requests as per fist attached as Exhibit B. 28) EDC action taken at meeting of 9-1-2015; copy of memo from EDC Executive Director attached as Exhibit c.

The full discussion of this item is on file at the City Secretary's office; City Commission 9-9-2015 audio recording. ·

ORDINANCE NO. 2015-8. MUNICIPAL SOLID WASTE (Item 3A) The first reading of this ordinance was at the meeting of August 12, 2015. This ordinance amends previous Ordinance No. 2007-12 which stated that the solld waste collection contractor for the city shall have the sole and exclusive franchise to collect within the city limits. This amendment continues the solid waste franchise but excludes governmental entitles within the city boundaries such as a county or school district entity which are considered sovereign governmental entities. Cmr. Ramirez moved to adopt Ordinance No. 2015-8 and Mayor Pro-Tern Garza seconded the motion. The motion passed unanimously.

The full discussion of this Item Is on file at the City Secretary's office; City Commission 9-9-2015 audio recor~ing. ·

ORDINANCE NO. 2015-9. GENERAL. SPECIAL AND ENTERPRISE FUNDS BUDGET FOR FISCAL YEAR 2015-2016 (Item 38) 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 department 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. Staff recommends approval of the first reading of Ordinance No. 2015-9. Mayor Pro-Tem Garza moved to approve the first reading of the ordinance 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 file at the City Secretary's office; City Commission 9-9-2015 audio recording.

ORDINANCE NO. 2015-10. AD VALOREM TAX RATE FOR TAX YEAR 2015 (Item 3Cl The proposed tax 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 valuation

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;

City Commission 9-9-lOJS 2

I Case 7:15-cv-00459 Document 1-2 Filed in TXSD on 10/31115 Page 5 of 35

Mayor Pro-Tem 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 file at the City Secretary's office; City Commission 9-9-2015 audio recording.

RESOLUTION NO. 2015-28. LOCAL BORDER SECURITY PROGRAM 2016 GRANT APPLICATION (Item 4Al Chief Castillo was present to address the Commission on this item. This resolution authorizes the submission of a grant application for the 2016 Local Border Security Program (LBSP) funding In the amount of approximately $130,000.00. The resolution also designates Elisa Y. Beas, Deputy City Manager, as the City's authorized official. Chief Castillo informed the Commission that the funds would be used for overtime for police officers. Mayor Pro-Tern Garza moved to approve Resolution No. 2015-28 and Cmr. Jones seconded the motion. The motion passed unanimously.

The full discussion of this Item is on file at the City Secretary's office; City Commission 9-9-2015 audio recording.

RESOLUTION NO. 2015-29 AUTHORIZING A GRANT APPLICATION TO THE TEXAS WATER DEVELOPMENT BOARD. GARCIA STREET WATER TANK PROJECT

The full discussion of this Item Is on file at the City Secretary's office; City Commission 9-9-2015 audio recording.

HOLLIS RUTLEDGE & ASSOCIATES. INC. PROFESSIONAL SERVICES AGREEMENT (Item Ml Mr. Hollis Rutledge was present to address the Commission on this Item. Ms. Beas informed the Commission that Mr. Rutledge was instrumental in assisting the City in securing funding for the Garcia Street Water Tank project from TWDB, the Skate Ramp facility from TX Parks and Wildlife and the Los Olmos Drainage Improvement project from the EDA and his services will be needed for future projects. The professional services agreement provides for grant application preparation, agency representation and legislative liaison services and begins on November 20, 2015 for one year with a one year option to renew. Cmr. Ramirez moved to approve the agreement and Mayor Pro-Tern Garza seconded the motion. The motion passed unanimously.

The full discussion of this Item Is on file at the City Secretary's office; City Commission 9-9-2015 audio recording.

LEASE AGREEMENT WITH RGC EDC. 406 E. MAIN ST.. LOPEZ-TIJERINA COMPLEX (Item §Ill The RGC EDC is interested in leasing the space at 406 E. Main Street at the Lopez-Tijerina Complex as the office for the Main Street Program. As discussed at the EDC Workshop In July, the rent would be waived In lieu of the maintenance costs associated with the upkeep of the grounds and the buildings. Staff recommends approval of the lease with the EDC. Cmr. Salinas moved to approve the lease agreement and Cmr. Jones seconded the motion. The motion passed unanimously.

The full discussion of this item Is on file at the City Secretary's office; City Commission 9-9-2015 audio recording. City Commission 3 9-9-2015 Case 7:15-cv-00459 Document 1-2 Filed in TXSD on 10/31/15 Page 6 of 35

LEASE AGREEMENT WITH BEHAVIORAL HEALTH SOLUTIONS OF SOUTH TEXAS. 405 E. MIRASOLES. SUITE A. LOPEZ..TIERINA COMPLEX (Item 5Cl Behavioral Health Solutions of South Texas Is requesting office space at 405 E. Mirasoles St., Suite A to offer free counseling services to our community. They would also coordinate with the Municipal Court on court referrals. The organization has requested that rent be waived In lieu of the free services to the community. Staff recommends approval of the lease with the Behavioral Health Solutions of South Texas. Cmr. Ramirez moved to approve the lease agreement and Cmr. Salinas seconded the motion. The motion passed unanimously.

The full discussion of this item Is on file at the City Secretary's office; City Commission 9-9-2015 audio recording.

MEMO OF UNDERSTANDING WITH U.S. FISH AND WILDLIFE FOR USE OF STATION '1#2 lltem SD) Chief Reyes was present to address the Commission on this issue. The U.S. Fish and Wiidiife personnel have been using Station '1#2 for approximately 6 years and have assisted our Fire Department and area fire departments in fighting grass and wlldland fires on private or government held lands. The proposed agreement Is for a period of four (4) years from the date of execution. Staff recommends approval of the MOU with the Department of the Interior, U.S. Fish and Wiidiife Service. Cmr. Ramirez moved to approve the lease agreement and Mayor Pro-Tem Garza seconded the motion. Th·e motion passed unanimously.

The full discussion of this Hem is on file at the City Secretary's office; City Commission 9..9..2015 audio recording.

BOND COUNSEL AGREEMENT WITH THE J. RAMIREZ LAW FIRM lltem 5El Attorney Jesus Ramirez has acted as the City's Bond Counsel for some time through the firm of Ramirez and Guerrero. Mr. Ramirez recently informed the City he is no longer In association with Mr. Guerrero, thus necessitating a new Bond Counsel Agreement. The agreement before the Commission has been forwarded to the City Attorney for review. Cmr. Ramirez moved to approve the Bond Counsel Agreement and Mayor Pro-Tem Garza seconded the motion. The motion passed unanimously.

The full discussion of this item is on file at the City Secretary's office; City Commission 9-9-2015 audio recording.

SETBACK AND PARKING VARIANCE REQUESTS FROM VERDAD REAL ESTATE AT 4011 E. U.S. HIGHWAY 83 (Item &Al Verdad Real Estate has requested a setback and parking variance at 4011 E. U.S. Highway 83 for a proposed Carl's Jr. Restaurant; this site is the old Economy Gas Station/convenience store location next to IBC Bank. The improvement to the prope.rty had been proposed to consist of a single story 2,999 square foot restaurant which would result In only 22 parking spaces; the minimum parking ratio required by ordinance being 40 spaces. However, the developer has subsequently proposed to downsize the building. This would result In a minimum parking requirement of 34 spaces vs. the new available parking 28 spaces. The developer would still need a variance on 6 parking spaces but would no longer need a setback variance. Staff recommends approval of the variance for 6 parking spaces. Cmr. Salinas moved to approve the variance and Cmr. Ramirez seconded the motion. The motion passed unanimously.

The full discussion of this Item is on file at the City Secretary's office; City Commission 9-9-2015 audio recording.

City Commission 4 9-9-2015 Case 7:15-cv-00459 Document 1-2 Filed in TXSD on 10/31/15 Page 7 of 35

FINAL APPROVAL OF PLAT OF LAREDO ESTATES SUBDIVISION. PHASE I (Item 681 Mr. Gilbert Guerra, Rio Delta Engineering, was present to represent the developer, Cayetano Interests, LLC. This Is a 26.86 acre tract of land divided out of Share 5..E and Share 5-F, Porclon 82, Camargo Jurisdiction. The subdivision consists of 39 lots averaging .50 acres each; the proposed development lies within the City's one mile ETJ. Preliminary approval for the subdivision was approved at the City Commission meeting of May 13, 2015, which included the condition to request annexation. Mr. Guerra Informed the Commission that the developer does not want to pursue annexation of the subdivision into the City and furthermore, he stated that the owners of an adjoining 421 remaining acres of a tract that had been annexed Into the City some time ago would soon be requesting de-annexation from the City; a Dfsannexation Exhibit was distributed and Is attached as Exhibit D. Mayor Pro-Tem Garza moved to grant final approval to the plat of the Laredo Estates Subdivision Phase I, subject to the terms and conditions Included In the Interoffice Memorandum dated Sept. 4, 2015, except that the owner retains the option to not annex the property Into the City. Cmr. Ramirez seconded the motion and It passed unanimously. A copy of the Interoffice Memorandum is attached as Exhibit E.

The full discussion of this Item Is on file at the City Secretary's office; City Commission 9-9-2015 audio recording.

PRELIMINARY AND FINAL APPROVAL OF THE DIVINO DESCANO SUBDIVISION (Item 6Cl Ruben Chapa, Melden and Hunt Engineering, was present to represent the developers, Luis and Rebecca T. Falcon. The subdivision Is comprised of 2.967 acres out of Share 31- A, Porcion 77, Camargo Jurisdiction and Is a one lot commercial subdivision which will be developed into a funeral home business. Mayor Pro-Tern Garza moved to grant preliminary and final approval to the plat of the Divina Descanso Subdivision, subject to the terms and conditions Included in the Interoffice Memorandum dated Sept. 4, 2015, a copy of which Is attached as Exhibit F. Cmr. Salinas seconded the motion and It passed unanimously.

The full discussion of this Item is on file at the City Secretary's office; City Commission 9-9-2015 audio recording.

PRELIMINARY AND FINAL APPROVAL OF THE PLAT OF THE JESUS GARCIA COMMERCIAL SUBDIVISION (Item 6Dl Jesus and Patricia Garcia, represented by MAS Engineering, are requesting preliminary and final approval for the Jesus Garcia Commercial Subdivision being a 0.717 acre tract of land out of Share 75, Porcion 82, Camargo Jurisdiction. The subdivision is a one lot commercial subdivision located on U.S. Highway 83. Mayor Pro-Tem Garza moved to grant preliminary and final approval to the plat of the Jesus Garcia Commercial Subdivision, subject to the terms and conditions Included in the Interoffice Memorandum dated Sept. 4, 2015, a copy of which is attached as Exhibit G. Cmr. Jones seconded the motion and it passed unanimously.

The full discussion of this Item Is on file at the City Secretary's office; City Commission 9-9-2015 audio recording.

EXECUTIVE SESSION (Item 7A-E) The Mayor convened the Executive Session at 7:17 pm In accordance with the Open Meetings Act authorized by Texas Government Code Section 551.071 (Consultation with Attorney), Section 551.072 (Deliberation Regarding Real Estate) as regards Items 7A·E of this agenda. The Mayor re-opened the public meeting at 7:50 pm.

City Commission 5 9-9-lOlS Case 7:15-cv-00459 Document 1-2 Filed in TXSD on 10/31/15 Page 8 of 35

NOTICE TO ALLIED WASTE REGARDING RESOLUTION NO. 2015-9 AND THEIR RESPONSE fltem 7Dl Cmr. Jones moved to terminate services with Allied Waste effective in 30 days and to allow the City Administration to negotiate an emergency contract with a third party solid waste provider. Mayor. Pro-Tem Garza seconded the motion and it passed unanimously.

PROSPECT NO. 2015-6 (Item 7E) Mayor Pro-Tem Garza moved to proceed on this item as discussed in Executive Session. Cmr. Ramirez seconded the motion and it passed unanimously.

NOTE: No action was taken by the Commission on Items 7A-C of this agenda.

ADJOURNMENT (Item 8) . Mayor Pro-Tem Garza moved to adjourn and Cmr. Ramirez seconded the motion. After the affirmative vote, the Mayor adjourned the meeting at 7:51 pm.

A0-<.,__.,--~ ~- ------- /joel Villarreal, Mayor

City Commission 6 9-9-2015 Case 7: 15-cv-00459

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TRAVEL REQUESTS FOR APPROVAL COMMISSION MEETING 9-9-2015

ADMINISTRATION

Elisa Beas and Hc;>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

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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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I 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.

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I II I i III 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 llNClO:> aaVJ.s s.. SVDJ. •m:> :a:NLLHf>rI TIVDAO in

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& TYPICAL DETAILS f LAREDO ESTATES SUBD . PH. I flllll 1n:GISTRATI01; No. f'- 7020 ~ ~: ?' RIO GRANDE CI'l'Y, TEXAS O::? I s. SUllYP.Y Flflll Jin, 101 04027 IOTH AVf.N llE r.oumunc. TR."CAS 705:J9 "' STARR COUNTY (TEL) o_sG-300-5152 (fAX) 950-300-5003 Case 7:15-cv-00459 Document 1-2 Filed in TXSD on 10/31/15 Pag~ D-6-2015

,. INTEROFFICE MEMORANDUM I TO: Mayor, Mayor Pro-Temp and Commissioners

FROM: Gilbert Millan, Planning Director ~ CC: Elisa Y Beas, Deputy City Administrator

SUBJECT: Preliminary and Final Plat Approval for Divino Descanso Subdivision

OVERVIEW: Luis and Rebecca T. Falcon represented by Melden and Hunt are requesting Preliminary and Final Approval for Divino Descanso Subdivision. Being a 2.967 Acres out of Share 31- A, Porcion 77, 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 on the comer of Eisenhower Rd and Old El Sauz Rd for the purposes of building a funeral home.

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 service 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 all 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..o.n.10/31/15.--.Rage.2-1-0f.J5-·-·--·

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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

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.

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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I Case 7:15-cv-00459 Document 1-2 Filed in TXSD on 10/31/15 Page 33 of 35

I 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

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

......----------·-· ···-· ............. [:. ! I j I 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:

Please stop all soli.d waste collection activity in the City of Rio Grande. Finally, please remove any and all Grande Oarbage trash collC(:tion containers at businesses, government locatio~ and residences within the city limits of Rio Grande City on or before September 25, 201 S.

If )'QU l1ave any questions, please do not hesitate to call. I remain,

Very Truly Yo\1ts,

£J:::~ Encl.: Con~raot between Cameron County and Allied Waste

6873~28.Grande Garbage (Notice to Cease and Desist 9. J8.1 S).doc

rt Case 7:15-cv-00459 Document 1-4 Filed in TXSD on 10/31/15 Page 1of6

AGREEMENT The RIO GRANDE CITY CONSOLIDATED INDEPENDENT SCHOOL DISTRICT (hereinafter the District) hereby engages the services of GRANQE GARBAGE COLLECTION CO. hereinafter the Company) and agree as follows:

1. Term. This agreemcn1 shall be become effective on lhe 1st day of Januarv, 2015 and shall tcnninatc on th~ 3 lst day of December. 2017.

2. Scopl' orScn•ices. The Company is engaged to provide the following product and services:

SOLID WASTE SERVICES COMPETITIVE SEALED PROPOSAL #lS-15

in accordance with Company's quotation sheet and the Special Tenns and Conditions of the quotation solicitation package which is attached hereto (Attachment I).

3. Fee. For services to be rendered under this agreement, the Company shall be entitled to the following fees stated in the proposal sheet which is attached hcreto(Attach1ncmt II), and incorporated for all purposes. Company shall submit u monthly invoice to District which is payable upon the expiration of forty-five (45) days from receipt by the District

4. Use or Employees. 1l1e Company shall perfonn the duties and s~rvices under this agreement using only the Company's employees. The Company's employees shall not he, nor be considered, the employees of the District. District does not intend to control or direct in any manner the conduct of Company's work, but is interested solely in the results obtained and production of Company. The manner and means by which the Company carries out the terms of this Agreement arc within the Company's sole discretion, and Company has complete and total authority to control and direct the perfonpance of the work, subject only to Districfs right of inspection, supervision, and control of the site, to secure satisfactory completion of the project pursuant to the tcnns of this Agreement without the ex.press written consent of District. Company and Company,s employees and agents :iholl have no right or authority, ii actual or apparent. tn make any correct in the name of District or otherwise bind District or transact any business in District's name. Company will hove an affinnative duty to prevent any employee or agent of ! the Company from making representations to anyone as having such right llr authority. i S. Devotion of Time and Effort. Tite Company shall devote such time and effort a.~ is reasonably f. necessary for a satisfactory performance of the services contracted. iI I 6. Criminal History Record. The Bidder 1tgrees to comply with Section 22.0834 Criminal I History Record Information R~view of Cenain Contract Employees, Texas Education Code if awarded a

I contract through this solicitation. "me undersigned vendor. if awarded a contract, shall obtain criminal history record infonnation through the criminal history clearinghouse as provided by Section 411.0845,

i Government Code relating to an employee or upplicant of Bidder who has or will hovi! continuing duties related to the contracted services; and the employee or applicant of Bidder has or will perform said duties on District property or a location where students are present. TI1e Bidder agrees to certify of the receipt of criminal history record information before or immediately after employing or securing the services of the ~. employee or applicant that ha.~ or will have continuing duties related to the contracted services if the employee or applicant has or will pcrfonn said dutk.-s on District property or a locution where students are

Ii present. The Bidder further agrees that if awarded a contract, Bidder shall 11s.caume all expenses associated with the criminal background check and shalJ immediately remove any employee or agent who was

il I ht'. f:., j:,_ _ _ __ E

f· Case 7:15-cv-00459 Document 1-4 Filed in TXSD on 10/31/15 Page 2 of 6

convicted of any felony, or n misdemeanor involving moral turpitude, as defined by Texas low, from District property or a location where students arc present.

7. Hold-Harmless and Indemnification. The Company agrees to hold harmless and indemnify the District from any liability, damages, costs and expenses which may directly or indirectly arise from or occur in connection \\ith the Company's performance under this Contract including but not limited to the collection of solid waste, or any action, activity or omission incident thereto. Such indemnification shall include but not be limited to all District's attorneys fees and costs incurred in defending or responding to any action brought or threatened against District for any action or omission arising from or incident to Company's perfomance under th is Contract.

8. Assignment. The duties and services of the Company are noo·delegable. The Company may not assign its duties, responsibilities, obligations, and services under this agreement without the prior written consent from the District.

9. Attorney's Fees. If auy action at law or in equity is brought by any party hereto to enforce or interpret the provisions of this agreement, the prevailing party shall be entitled to recover from the other party its reasonable atton1ey's fees in addition to any other relief to which it may be entitled.

I0. Governing Law. This agreement is made in Starr County, Texas, and is to be performed in Starr County, Texas. This agreement sholl be governed in all respects by the laws of State of Texas. .

11. Termination. Eitber party to this agreement may tenninate this agreement with or without cause, upon 30 days written notice of such tcnnination.

12. Entire Agreement. This agreement and the attached documents constitutes the sole and only agreemenl of the parties and supersedes any prior understandings or written or oral agr~ments between the parties respecting this subject matter.

,. !. f ; By: Sign~ Typed/ Typed/ /:} Printed Name: Roel Gonzalez Printed Name: J"ih,..·,;".1 i i t· Title: Superintendent t i Date: __1_2._//_/_'-.....A_I'_~_____ Date: /~ -h.- ·.Ii.JI~

I: .

.. L______________ )"·

L k t Case 7:15-cv-00459 Document 1-4 Filed in TXSD on 10/31/15 Page 3 of 6

ATTACHMENT I SPECIAL TERMS AND CONDITIONS:

l. PENALTY: Fail11re to perfonn in keeping with the terms of this agreement may result in immediate: terminal ion and service may be awarded to the next responsible proposer.

2. This proposal will be awarded on an all or nothing grou1> 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 I 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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~~1;; r ·.· ·. . ~~-: 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. t r [' 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. r f f c) INVOICING REQUIREMENTS: The awarded vendor must provide separate invoices for Child I' Nutrition Program and for Maintenance Department on a monthly basis. I i I 1.• 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. ' i 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

g) DUMPSTER INSPECTION: The awarded vendor must comply with a dumpster inspection and evaluation during the months of June and December and subsequently provide respective maintenance of trash dumpsters. The maintenance inspections shall be for the purpose of identifying those dumpsters that may hnve holes on dumpster base, damaged lids, bent side doors and for corrosion control. Dumpsters requiring maintenance shall be 1·eplaced promptly due to corrosion or wear and tettr nt no additional cost to Rio Grande City C.l.S.D. These inspections must be coordinated through both the Child Nutrition Program Director and the Maintenance Department and an inspection schedule must be forwarded to both the Child Nutrition Program Director and the Maintenance Dcpartm~nt.

h) DUMPSTER PRESSURE WASHING REQUIREMENTS: At a minimum, the awarded vendor must pressure wash all Child Nutrition Program dumpsters once a month and Mnintenance Depanment during the months of June and December, at the awarded vendor's expense. This service must be coordinated through both the Child Nutrition Program Director and the Maintenance Department Director and subsequently. a dumpster pressure washing schedule must be forwarded to both the Child Nutrition Program and the Maintenance Department prior to pressure washing of dumpscers.

i) SCHOOL DISTRICT HOURS OF OPERATION FOR TRASH COLLECTION SERVICES. August thn."lugh May: every business day as reflected in school calendar from 6:00 a.m. to 6 p.m.; June nnd July: e\'cry business day as reflected in sc:hool calendar from 7:00 a.m. through 3:00 p.m. The awarded vendor mnst verify summer schedule with both the Child Nutrition Services Director and the Maintenance Depnrtment.

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f l[ I:> .·. Case 7:15-cv-00459 Document 1-5 Filed in TXSD on 10/31/15 Page 1of3

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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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

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 ,.:.·t .

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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

The full discussion of this Item Is on file at the City Secretary's office; City Commission 9-28-2015 audio recording.

EMERGENCY CONTRACT FOR SOLID WASTE COLLECTION AND DISPOSAL SERVICE WITH GRANDE GARBAGE COLLECTION CO. (Item 3A) The Mayor recused himself from discussion and voting in this Item as Mr. Patricio Hernandez, owner of Grande Garbage Collection Co., was his Campaign Treasurer for the . June 27, 2015 Special Election. The Mayor left the Commission Chambers and he did not return to the public meeting.

Mayor Pro-Tem Garza took charge of the meeting and moved to take this item Into Executive Session. The motion was seconded by Cmr. Ramirez and passed unanimously.

EXECUTIVE SESSION (Items 3A and 4A-El Mayor Pro-Tem Garza convened the Executive Session at 6:25 pm In accordance with the Open Meetings Act authorized by Texas Government Code Section 551.071 (Consultation with Attorney), Section 551.072 (Deliberation Regarding Real Estate) as regards items 3A and 7A-E of this agenda. The Mayor Pro-Tem re-opened the public meeting at 7:13 pm.

EMERGENCY CONTRACT FOR SOLID WASTE COLLECTION AND DISPOSAL SERVICE WITH GRANDE GARBAGE COLLECTION CO. (Item 3Al Cmr. Ramirez moved to approve as discussed In Executive Session. Cmr. Jones seconded the motion and It passed unanimously.

NOTE: No action was taken by the Commission on Items 4A-E of this agenda.

ADJOURNMENT (Item 5) Cmr. Ramirez moved to adjourn and Cmr. Salinas seconded the motion. After the affirmative vote, Mayor Pro-Tem Garza adjourned the meeting at 7:14 pm.

--·--:._ <- Joel Villarreal, Mayor

City Commission 3 9·28·2015 Case 7:15-cv-00459 Document 1-7 Filed in TXSD on 10/31/15 Page 1of14

THE STATE OF TEXAS §

CITY OF RJO GRANDE CITY §

COUNTY OF ST ARR §

CONTRACT FOR SOLID WASTE COLLECTION AND DISPOSAL SERVICE

This Contracl for Solid Waste Collection and Disposal Service for the City of lUo Grande, Texas (hereinafter referred to as the "Conlmct'') is made on lhe 28th day of September, 2015 between the City of Rio Grande, Texus {hereinafter rct~rred to as ("City") 5332 Ea~1 Highway 83. Rio Grande, Texas 78582 and Grw1de Garbage Collection C:o. tncreinafler referred to as Contractor:') 201 Brinon Avenue, Rio (Jmnde City, Texas 78582.

TERM

The t\:ml of the comract with the City of Rio Grande City and the Contractor will be cficctive beginning October 10, 2015 through October 11, 2018~ a three-year tenn. An option to renew this contn1cl for an additional two-year term.

The provisions oJ' this Contract shall be strictly complied with and confonncd to by the Contractor and the City, and no amendment lo this Contract shall be mode except upon the written consent of the City and the Contractot'.

No amendment to this Contract shall be construed to release either party from tmy obligation of this Conrract except as especially provided for in such amendment.

The Contractor shall not be liable for the fuilure to perfonn its duties, in whole or in part, if such failure is caused by catastrophe, riot, war, govenunental order or regulation, strike~ fire, uct of god, inclement weather, changes to city, state or federal regulations impacting the Contractor.

In lhc event that any provision or portion of this Contract shall be found invalid, unconstitutionnl1 or unenforceable, by a court of competent jurisdictio11, its invalidity, unconstitutionally, or uncnforcenbilily, o.r unenforceability shall not affect remaining provisions of this Contract and the rcmuining provisions shalJ continue in full force and effect us if such invalidity~ unconstitutionality or unenforccability never existed.

1.00 DE14'1NITJONS

1.01 BIN-· Mental receptacle designed to be lifted and emptied mcchnnicnlly for use only at commcrciaJ and industrial units.

1.02 HRUSH - Tree trimmings, grass cutting, dead trees or brtll'lchcs thereof, shrubs, chip~ shavings produced at an occupied residential lot. Brush generated fmm lot

l

r I I. ! I -,--------- i Case 7:15-cv-00459 Document 1-7 Filed in TXSD on 10/31/15 Page 2 of 14

clearing operations is not covered under the definition of brush.

J.03 BUI~KY WASTE - Appliances such as washers, dryers, stoves. air conditioners and refrigercltors (provided Freon has been removed by a licensed facility nnd is lahclcd as such)~ water tanks, furniture, and mattresses generated nt an occupied n:sidcntial, or small commercial lot.

1.04 CITY - City of Rio Grande City, Texas.

1.05 COMMERCIAL AND INDUSTRIAL REFUSE - All bulky waste, construction debris, garbage, and rubbish and stable rnalter generated by n producer or contractor ttl a commercial and industrial unit.

1.06 COMMERCIAL ANll INDUSTRIAL UNIT -· All premises locations or entities, public or private requiring refuse collection within the corporation limits or the City not a residential unit. 1.07 CONSTRUCTION DEBRIS ·- Waste building matedals resulting from commercial, industrial, or residential construction. remodeling, repair or demolition operations.

1.08 CONTAINERS - 96 Gallon wheel carts fur residential use, to be pro~ided by contrnctor, to be used in conjunction with a fully authorized pickup plan.

1.09 CONTRACT DOCUMENTS -· Contntctor's proposal. general specifications, the contract and any addenda m changes to the foregoing documents agreed to by the City of Rio Grande City and the Contractor. Contract documents shall include the following documents, and this Contract docs hereby expressly incorporate same he.rein as fully as is set forth verbatim in this contract:

a. ·me Contrnclor·s Rate Quotations; b. The Gencml Specifications; c. The resolution of the City of Rio Grande City ordering or authorizing the work and services contemplated herein; cl. This instrument; and; c. Any addenda or change lo the foregoing documents agreed h> 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

4.02 ROUTl.!~S 0)., <~OLLECTION

(a) Rcsidcntiul collection routes shall be established by th~ Contracror and provided tu Rio Grande City. Contractor shall submit a schedule designating Case 7:15-cv-00459 Document 1-7 Filed in TXSD on 10/31/15 Page 6 of 14

the residential unit collection routes to the City for its approval, which approval shall not be unreasonably v.ithheld. The Contractor may from time to time propose changes in routes or schedule, contingent on approvaJ of City, which approvnJ shnJI not be unreasonably withheld. Upon City's approval of the collection mutes or any subsequcna proposed changes, Contractor shall promptly give written or published notice to the allectcd residential units.

(b) Conunercial and industrial unit collection routes shall be established by the Contractor and provided to Rio Grande City. All routing must comply with City and State traffic laws. Contractor is not to use alleyways for traffic passage unless bins arc located in the alleyway. ConU'llctor shall submit a schedule designating the commercial and industl'iaJ unit collection routes to the City for its approval, which approval shall not he unrca..cionably withheld. The Contractor mny from time to time propose changes in routes or schedule, contingent on approval of City,

4.03 HOLIDAYS

The following shall he holidays for the _purpose of this conu·acl:

New Year's Day Memorial Day Independence Day Labor Day Thanksgiving Day Christmas Day

Contractor may decide to observe any or an of the above mentioned holidays by suspension of coJlcction services on the holiday, but such decision in no manner relieves Contractor of its obligation to provide collection services at residential units once per week and commercial, industrial, and construction customers as per agreement with customer. Contractor will furnish advance notice to City of which holidays will be observed and what the alternate schedule will be. Alternate schedult!s will be subject to approval by the City.

4.04 COMPLAINTS

All complainlc; from a produc~r: the public or lhc City shall be made directly to the Contractor and shull be given 11rompt and courteous attention. In the case of all"'gcd missed scheduled colleclions, the Contractor slmll investigate, and if such aJlcgnlions are vcri lied, ~hull mTunge from the collection of refuse not collected within 24 hours after 1hc complaiut is received.

4.05 COLLECTION EQUIPMENT

The contractor shall provide ~m ndequate number of vehicles for regular collection Case 7:15-cv-00459 Document 1-7 Filed in TXSD on 10/31/15 Page 7 of 14

services. All vehicles, bins and other equipment shall be kept in good repair, appearance, and in a sanitary condition at all times. Each vehicle shall have clearly visible, on each side, the identification and telephone number of the Contractor. The Contractor shall also provide reliable back up vehicles for regular collection service vehicles.

4.06 OFFICE

The Contractor shall maintain an office or other facilities through which he can be contacted. It shall be equipped with sufficient telephones and a local telephone number or a toll free number, and shall have a responsible person in charge from 8:00 n.m. to 5:00 p.m. from Monday through Friday, except for holidays.

4.07 HAULING

All refuse hauled by the Contractor shall be so contained or enclosed that leaking, spilling or blowing arc reasonably prevented.

4.08 DISPOSAL

All refuse collected for disposal by the Contractor shalJ be hauled lo disposal site. The charge for disposal shall be included in the rates scl 1Cnth in the proposal for each commercial and industrial unit and residential unit serviced by the contractor.

4.09 NOTU'JCATION i l r The Contractor shall initially notify all producers at commercial and residential units about regulations and days for scheduled refuse collection. l I 4.10 POINT O.F CONT.ACT

All dealings between th~ Contractor aud the City shall be directed by the Cont.Juctor lo lhe City Mnnager or his/her designated appointee, and by the City to upp~priate person lo be c.Jcsignatcd by the Contractor.

5.00 COMP.LIANCE WITH LAW

The Contractor shall conduct operations under this Contract in compliance with all applicable laws; provided, howevet·, that the General Specifications shalJ govem the obligalions of the Contractor where there cxisL conflicting ordinsmces of the City 011 the subject.

6.00 EFFECTIVE DATE

This Contract shall be effective upon the execution of the Contract and Case 7:15-cv-00459 Document 1-7 Filed in TXSD on 10/31/15 Page 8 of 14

perfonnancc of such contract shall begin on the date as jointly agreed upon by the parties involved which will ensure a smooth transition of responsibilities between the out-going and in-coming contractor and avoid the interruption of services to lhe customers. Por lhe purpose of this agreement the effecti\'c date will be October 10, 2015.

7.00 NONDISCRll'VllNATION

The Contractor shall not discriminate against any person becuuse of race: sex, age, creed, color, religion or national origin.

8.00 INDEMNITY

Tbe Contractor will indemnify and save hannless the City, its o.fficers, agents, servants, and employees from and against any and all suits, actions, legal proceedings, claims, demands, damages, costs, expenses, and attorneys' fees arising out of a willful or negligent act or omission of the Contractor, its officers, agents, servants, and employees; provided, however, that the Contn1ctor shall not be liable for any suits. acti<>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,

~· t

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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. 1. r r.t. ..... ·--·--·--·----------------- f: [: 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.

I t. ~ 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. l

!.

Ir .

.. 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 ~ I 1·

I t

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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 , ..

r 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.

2 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 3 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.

4 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

5 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

6 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 7 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 8 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.

9 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.

10 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

11 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.

12 Case 7:15-cv-00459 Document 1-8 Filed in TXSD on 10/31/15 Page 13of19

XII. REQUEST FOR DECLARATORY JUDGMENT

55. Plaintiff incorporates by reference the factual allegations contained in the preceding

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:

13 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

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 14 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. 15 Case 7:15-cv-00459 Document 1-8 Filed in TXSD on 10/31/15 Page 16 of 19

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

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.

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

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;

4. ADJ OUR:NMENT

CERTIFicA'fJON This "is to certify that I, Holly D. Guerrero, postt?d -lhll:! NolJc.e on the qi.lc.qy~ W?P. adJC!oent lo tP.e frorit door .entrance of Cify Han, vislble and accessib!6 h? the geQ~ .: bric cjuring 9r:itj ~~r l't;l9l!!~r warklf!~ hours. 'This Notice was P.osted on the 25th day f Se ~m ~01 5 qn ~r before 5;00 P.~ and will remain so posted. for at least 72 hours pr · -the f:h led Urne of ~ rnee~l.ng m accordance with Chapter 551 of the iexas Go11em EXHIBIT B

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 B Case 7:15-cv-00459 Docum ent 4 Filed in TXSD on 11103/15 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, § Case No. 7: 15-cv-00459 § Plaintiff, § § Judge Micaela Alvarez v. § § CITY OF RIO GRANDE CITY, TEXAS § AND ITS ELECTED OFFICIALS IN § THEIR OFFICIAL CAPACITIES, § § Defendants. §

MOTION TO REMAND AND REQUEST TO EXTEND TEMPORARY RESTRAINING ORDER

This case arises from a contract for solid waste services between Plaintiff BFI Waste

Services of Texas, LP, d/b/a Allied Waste Services of Rio Grande Valley ("Allied") and

Defendant the City of Rio Grande (the "City"). The parties clearly waived federal jurisdiction in

that contract by specifying in the dispute resolution provision that "venue shall rest in Starr

County, Texas." The courts in the Fifth Circuit have uni formly held that such a clause waives

federal jurisdiction when, as here, no federal court sits in the specified county. The City's

removal of this case was improper, and the Court should remand it back to state court.

Before the City's improper removal, the Starr County district court entered a temporary

restraining order ("TRO") against the City precluding it from utilizing a new company to pick up

and haul solid waste in violation of the Allied/City contract. The City's attempted removal

appears to be motivated by a desire to get out from under that TRO and to avoid a hearing on the TRUE COPY I CERTIFY AT~ DA:TST: B By~ Case 7:15-cv-00459 Document 4 Filed in TXSD on 11/03/15 Page 2 of 8

TRO that was scheduled for November 5, 2015. To prevent Allied from being further harmed by

the City's improper actions, Allied respectfully requests this Court to continue the TRO, which is

entirely appropriate under federal law, pending a ruling on Allied's motion to remand. Allied

supports this motion with the following memorandum of points and authorities.

MEMORANDUM OF POINTS AND AUTHORITIES

I. FACTUAL BACKGROUND.

On December 7, 2011, the City granted Allied the exclusive right to provide certain

services within the City through September 30, 2018 (the "Contract"). The Contract is attached

hereto as Exhibit 1. The City, however, breached the Contract by terminating Allied without

cause and in contravention of the Contract's termination procedures. The City then immediately

purported to award a new exclusive contract to Allied's competitor-Grande Garbage Collection

Company ("Grande Garbage"). See Dkt. 1-7. Grande Garbage is owned by the Mayor's

Campaign Treasurer, Pat Hernandez, who is also the Mayor's largest campaign donor. Simply,

the City improperly tenninated and replaced Allied to reward a friend of the Mayor.

More specifically, Allied challenges the City's termination of the Contract because:

( l) Allied committed no material breaches for which the termination procedure of Section 19.00

of the Contract would apply to allow the City to terminate Allied; (2) even if the three service

issues for which the City notified Allied constitute material breaches, Allied cured these

breaches, and the City failed to present Allied with a resolution notifying Allied of any failure to

cure these breaches as required by Section 19.00 of the Contract~ and (3) the City violated the

Texas Open Meetings Act rendering the decisions to terminate the Contract and purport to award

a contract to Grande Garbage void.

On October 8, 2015, Allied sued the City in Starr County, Texas District Court, alleging

various claims arising from the City's improper actions. The Starr County district court granted

2 Case 7:15-cv-00459 Document 4 Filed in TXSD on 11/03/15 Page 3 of 8

a TRO against the City on October 12, 2015. TRO, attached hereto as Exhibit 2. The TRO was

to operate until October 22, 2015 and pending a hearing on Allied 's Petition for a Temporary

Injunction set for that date. 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.

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

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

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~

2 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. 3 Case 7:15-cv-00459 Document 4-1 Filed in TXSD on 11/03/15 Page 4 of 17

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

Furnish six SO·oublc yard roll·off htwls per yesr for annual elltlnts of the City and Eoonomfc fJevelopmrmt Commlttes.

• Up to seven (1) 4·ysrd dumpsters (or 96 gallon osrts) servlc•d onca per wtek at various City looatlons lno/udlng City Hall, FIN Departmsnt Pub/lo Works faolllty1 /.Jbrary, Public Utility Department, and other munto/pal buildings.

• A•slm~mot In up to four (4) olty wide olean·ups per year. Contraotor wlR aasfet with City wlcN o/ean..upa four (4) times psr year with brush truok col/sot/on. Items ocl/ecled will b9 of tho sams nature of waste cCJllected during rhs monthly brush/bulky /tr1m (:Q//eotlan.

3.,02 LOCATION OF BINS, OONTAJNSRS, BRUSH/BULKY WASTB FOR t:OLLl!OT/ON {a) Containers and brush/bulky Items shsll be placed at ourbsldea for oottsotlon as rsqulrod by City arrilnence, CUrb•lds refers to that portion of tight-at-way ad/sosnt to paved or traveled City roadways. Containers, brus/'t/buJJcy lt11ms shall bs placed as close to tho roadway as prsotlatlb'e Without Jnterfsrlng with or endang6rlng the movement of vohlofes or ped1strl1ms. Whsn canstnJotlon work Is being pSrlormed In thG right-of.way, containers, brush/bulky Items 9hall be p/11cad as close as ptaottoable to an scoess point fot the colfeotJon Vfhlt:/e. Contractor may docllne to col/stJt any residential refuse not proporly plaaed In a Oontraotor Issued Dontalner. (b) Contractor sltall prot1lde bins for ot1mmorr:lsl and lndust!lal units and construction sites whenevar customers rsqueat their use. Eaoh bin $hall be placed In sn aacssslble, unobstructed location on e hard aurfai;e eccordlng to lndMdua/ ll(Jresment, subject to city ordinance. Contraotot may d•ollne to co/leot refuse fn bins nOl ~o placed to permit a coll•otfcm vehlcls unobstructsd access. Oontraotor wlll not be held respon1Jlbl1 for wtar and tsar or surtaoe damage on cuatcmer'1 prlVBts propfrty aaused by normal c:ollectlon operations,

3.03 ITEMS NOT COLL8CTED

Items not oolleatsd under the terms at this c:ontfaot lnolude batteries, Ifquids of any kind, medl

4..00 COLLECTION OPERATIONS

s Case 7:15-cv-00459 Document 4-1 Filed in TXSD on 11/03/15 Page 6 of 17

4,,01 HOURS OPOPSRATION

(a) Collect/on of r91/d,ntla/ reluseJ shall not start before 1:00 a.m. or continue after 7:00 p.m. on the same day urrloss by the mutual agrtement of City and Contraotor du~ to unusual clroumstsnofjs.

b) Collsotlon of oommaralsl and lndu8trlal refuse and oonstruotlon debris shall take plsoe socordlng to agreement betw1Jem Contraotor and Its r;ustomero but suoh sgraement shall conform to the tsrm.t of City ord/n11noe.

4,02 ROUTSS OF COLLECTION

(a} Residential colleollon routes shall be established by the Contractor. Contra,,tor shall sUbm/t a schedule designating the re1ld1ntlsl unit oollsctfon routes to tile City for Its approval, which approval shall not be unreasonably withheld, The Contractor may from tlm' to tfme prop0$t ohanges In rout11 or sohedult, whlah approval shall not be unre19onably wlthhq/d, Vpan Cftys approval ot the ooll6ctl~n rout1'1 or any subssqusnt proposed ohango11, Contrllctor shall promptly gfv6 written or publlahsd noth:d lo tha sffeotsd resident/al unlts.

(b) Oommsrr:lal and lnduatrlsl unit col/sot/on roulu sh,all be established by th• .Contraatt:Jr, All routing must comply with City snd State trsrnc laws. Contract"' Is nor to use alleyways for trofflr> paf!J.ag& unless b1ns "" located In the alfeyway.

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.

6 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.

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

7 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, I 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 I I 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 8 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 I

I i I I 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 I

{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. FO

(c) lnvoloes aent to City by Contractor al1ould rel/set the rateo shown an ths attached rats quo tat/on sheet. See Oontractor'a propos11/ attached.

13.0.3 MODJFICATION TO RA rss

(a) The fees Which may be charged by Oontrsotor effsotlve October 1, 201 z shall be adjusted upward to ref/eat olmngn In the oost of operations, as reflectsd by f/uotuntlons In the Consumer Prlae lnddr for All Urban aonsumert Water l>ttd 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 lO Case 7:15-cv-00459 Document 4-1 Filed in TXSD on 11/03/15 Page 11of17

I I 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 I I 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. II I . I : I I (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 ll 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 I j 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. I r i l

16.00 RECORDS A VAILABLI! FOR INSPIJCTION I 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, I.I ! 11'.00 JUll/SD/CT/ON I I 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.

12 Case 7:15-cv-00459 Document 4-1 Filed in TXSD on 11/03/15 Page 13of17

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: I i

20,00 CLEAN·UPS I i 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>

Re: Contract E:xtenafotl

Dear Mayor,

We at Allled Waste have enjoyed our relationship with the re.sldent.D, business owners, and City staff of Rfo Grande Cfty since we began providing solfd waste sarvtoea In October, 2007.

Since the service began, fhe City has taken on an Improved appearance due to the monthly brushfOulky oollecHon. complaints have been mfnrmal, and rates have rema1ned reasonable. As you are aware, our current contract term ends on September so, 2016, SecUon 10.00 (Term) arrows fQr 36 month contract extensions. At thle time, f would like to request that the contract be axtended for an addJtlonaf 36 month period (new term ends September so, 2018}. This would allow the residents and business owners of Rio Grande City ·to oonUnue to raoelve the excellent servloe they have become accustomed to. All other terms ot th~ contract would remain unchanged.

r·f accepted, AJlled Waste would waive the 2012 and 2013 CPI Increases. It not acceptadr the 2012 CPI Increase wourd remain in effeot.

Thank you for your consideration of this matter and please do not hesitate ta oontaot me at (800) 423--731 eoffice. or (966) 495·4236 moblle if you should have ques11ons.

Sincere!\ .-::::>/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

Jesse Sanchez Affidavit I 4 Case 7:15-cv-00459 Document 4-5 Filed in TXSD on 11/03/15 Page 1of4

JOHN 0AVID FRANZ 400 N. McCOLL. SUIT5 B MoAU.EN, TX 78601

BOARD CERTIFfED PERSONAL INJURY TRIAL LAW (966) B8&3SCO TS

Jacqueline R. Salinas City Attorney Via Fax: (956} 317-1269 City of Rio Grande &Email 507 N. Britton Ave. Rio Grande City, Texas 78582

Tony Martinez Martinez, Barrera & Martinez, LLP Via Fax (956) 544-3559 1201 East Van Buren &Email Brownsville, Texas 78520

Re: :MEDIATION

Dear Ms. Salinas and Mr. Martinez:

As you are both a~e, Judge Lopez of the-19Th Judicial District Court sitting in Starr · County pmsuant to an assignment by Justice Hecht, issued a Temporary Restraining Order .... . ·e~joining the City of Rio Grande from interfering. with Allied's contractual right to collect and r~ :4:· ·.• : •. dispose of solid waste within the corporate. limits of Rio Grande City. The Temporary Restraining Order was extended on October 22, 2015 pending completion of the Temporary Injunction Hearing. The extension of the Temporary Restraining Order included an order to ~ . : :... : . '- ~ mediate this case. :Attached is a copy of the Court Order requiring us to mediate before the next setting (November 5j 2015).

Last week, in an effort to comply with Judge Lopez' order, I communicated extensively : . · = •. · .. with Ms. Salinas, Mr. Hinojosa and potential mediators regarding an agreeable mediation date ·~ ~:. . .. and time. I advised Ms. Salinas that Scott McLain was available on November 2, 2015 and she ': .. :.. ,. ,_: .., . rejected the date because co ..counsel Martinez would not be available. Ms. Salinas did say Gil Peralez was available on November 3, 201 S and she would like mediation in the afternoon so :·..:. ·,·. that Mr. Martinez could attend. After contacting the mediator Ms. Salinas suggested the _:, afternoon of November 4, 2015 was proposed as an acceptable mediation date. Ms. Salinas • I• stated that the afternoon ofNovember 4, 2015 was acceptable and Mr. Peralez was advised that the pa:rties would present themselves for mediation at his office at noon on Noyember 4, 2015. Ms. Salinas was copied on an email to Mr. Peralez which con.finned the mediation date and time. : ... See attached copy of email. At no time has anyone representin8 the City indicated anything that would indicate an unwillingness to mediate this case as ordered by Judge Lopez.

I 5 Case 7:15-cv-00459 Document 4-5 Fjled in TXSD on 11/03/15 Page 2 of 4

On Saturday October 31, 2015, Defendant Rio Grande City removed the case to federal court. Please be advised that although Judge Lopez no longer has jurisdiction over this case, her orders remain in effect. Case law, including some U.S. Supreme Court holdings make it clear that "after removal, state court orders remain in effect"

"[A]fter removal, such state court orders remain in effect blrt 'federal rather than state law governs the future course of proceedings.' ,, Palmisano v. Allina Health Sy3tema, Inc., 190 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. §

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.

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.

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