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Ordinance No. 7,642960222 -9 ORDINANCE NO. 7642 ® AN ORDINANCE ACCEPTING THE BID OF NIEDERHOFER ENTERPRISES, INC., FOR THE ANNUAL MOWING, EDGING, AND TRIMMING SERVICES CONTRACT AND AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN, THE SUM OF THIRTY THOUSAND AND N01100 DOLLARS ($30,000.00); MAKING OTHER PROVISIONS RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. WHEREAS, the City Council of the City of Baytown did authorize the Purchasing Department for the City of Baytown to advertise for bids for the annual mowing, edging, and trimming services contract to be received February 14, 1996; and WHEREAS, notice to bidders as to the time and place, when and where the contract would be let was published pursuant to the provisions of Section 74 of the Charter of the City of Baytown; and WHEREAS, all bids were opened and publicly read at City Hall at 2:00 p.m., Wednesday, February 14, 1996, as per published notice to bidders; NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That the City Council of the City of Baytown hereby accepts the bid of Niederhofer Enterprises, Inc., for the annual mowing, edging, and trimming services contract for the sum of THIRTY THOUSAND AND NO /100 DOLLARS ($30,000.00), and authorizes payment thereof. Section 2: That pursuant to the provisions of Texas Local Government Code Annotated § 252.048, the City Manager is hereby granted general authority to approve any change order involving a decrease or an increase in costs of FIFTEEN THOUSAND AND NO /100 DOLLARS ($15,000.00) or less, subject to the provision that the original contract price may not be increased by more than twenty -five (25 %) or decreased by more than twenty -five (25 %) percent without the consent of the contractor to such decrease. Section 3: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of Baytown this the 22nd day of February, 1996. &. cr • PETE C. ALFAR , Mayor ® ATTEST: ,P C- EILEEN P. HALL, City Clerk APPROVED AS TO FORM: ACID RAMIREZ, SR., Wty Attorney cA counciRmeetings lfebruarylmowing.22 r� 960222 -9a • CITY OF BAYTOWN PARKS AND RECREATION DEPARTMENT ANNUAL MOWING, EDGING AND TRIMMING SERVICES CONTRACT STATE OF TEXAS § COUNTY OF HARRIS § WHEREAS, the City of Baytown desires to obtain services for municipal grounds and facilities maintenance at various locations within the City; and WHEREAS, safe, economical, and effective services are desired, along with a pleasant appearance and provisions for a coordinated and responsive maintenance program; NOW, THEREFORE,KNOW ALL MEN BY THESE PRESENTS: I. SCOPE This service agreement, hereinafter known as "Agreement," is made and entered into this 23rd day of February, 1996, by and between the City of Baytown, as owner, hereinafter known as the "City," and Niederhofer Enterprises, Inc.,hereinafter known as the "Contractor." Contractor agrees to furnish all the material and do all work and services in a timely and workerlike manner necessary to complete the said landscaping and maintenance services as required herein. Such work shall include the provision of grounds maintenance of the designated areas including mowing,trimming, trash removal and any other related services as specified. In return, the City agrees to pay the Contractor the price shown in the Contractor's bid documents for each successfully completed work cycle which documents form a part of this contract and are incorporated • herein for all intents and purposes. All payments, however, shall be subject to the terms and conditions herein. II. DEFINITIONS The following definitions of terms are hereby agreed upon: City Manager shall mean the City Manager of the City of Baytown or his designated representative. Debrisshall mean litter,trash,garbage,tree limbs,fragments,remains,ruins,rubble,or loose materials of any nature which may detract from the appearance, safety, or use of municipal grounds and/or facilities. Edging shall refer to the vertical removal of any and all plant material which encroaches over or onto sidewalks (both sides), curbs, steps, driveways, and pavements. Edges shall be vertical, minimum depth of one inch(1") and minimum width of one-fourth inch(1/4"). Foreign growth shall include all weeds,thickets and noxious plants. Herbicide requirements shall refer to the use of a herbicide (such as Roundup and/or an approved equal containing a pre-emergent such as Surflan or an approved equal) as an alternative to the physical removal or cutting of plant material from areas to be trimmed. Written approval for the application of herbicides at any location shall be obtained from the Superintendent prior to the use of the same. Application shall be in compliance with the Texas Department of Agriculture or Structural Pest Control Board. Inclement weather shall mean rainy weather when the condition of the soil is such that the rutting of property shall not allow cutting of grass to be accomplished satisfactorily. 2 i 110 Landscaping shall mean material such as, but not limited to, grass, ground covers, shrubs, vines,hedges,trees or palms, and nonliving durable material commonly used in landscaping, such as,but not limited to, rocks, pebbles, sand, walls, or fences, but excluding paving. Landscaping Schedule shall mean the time periods established for the project year within all prescribed maintenance activities for each area shall be completed. Litter removal shall mean the removal of trash and debris from the assigned landscaping maintenance project area as determined by the Superintendent. The issuance of a work order for Litter Removal only, does not require mowing, trimming, edging, etc. Maintenance cycle shall refer to each time period in the landscaping schedule for the project year. Each time period is prescribed by a beginning and ending date, in which all prescribed maintenance activities for each area shall be completed. Mulch areas shall refer to those areas adjacent to trees, shrub beds, and other purposefully planted landscape areas in which all plant growth shall be removed. Scalpingshall refer to any action which results in the mowing of any turf area below three and one-half inches (3'/2") in height down to and including the soil. Shrub bed shall mean any purposefully planted domestic, ornamental plant growth. Sucker growth shall mean the incidental vegetative growth arising from the base and lower truck areas which are not essential to the overall well being of the plant. Superintendent shall mean the Superintendent of Parks of the City of Baytown, or his designated representative. Trashshall mean any debris within the landscaping maintenance project areas such as paper, cans, bottles, limbs (three inches (3") or smaller in diameter), rocks, etc., which is not intended to 3 • • be present as a part of the landscape or which is present in the project area, including all streets, sidewalks, curbs, hillsides, ditches, etc. Removal of debris shall require sweeping of hard surface areas such as sidewalks and driveways. Trimming shall refer to the cutting or removal of all plant material immediately adjacent to or under the park structures, trees,poles,tables, signs, fences, shrub beds, etc. Shall also, include removal of all plant material from expansion joints and any other cracks in curbs, sidewalks (both sides) driveways and any other concrete surface within the right-of-way. III. CONTRACTOR'S RESPONSIBILITIES Equipment: Contractor shall use the equipment which is included in his bid documents or equipment of a comparable or higher quality for the performance of his obligations under this contract. Contractor warrants that all such equipment listed in the bid documents is adequate for the work contemplated herein. Mowing equipment shall be equipped with sharp blades so as not to tear but cleanly cut the blades of grass. Additionally,Contractor shall maintain or have immediate access to adequate backup equipment in order to sustain continuous operations in the event of equipment failure. The use of insufficient and/or inadequate machinery or equipment as determined by the City Manager or the Superintendent shall be deemed a breach of this agreement. Personnel: Contractor shall provide supervision of all work crews at all times while performing work under this contract. Personal supervision is not required provided that equipment or other means are provided that enable the work crew to communicate with the Contractor at all times. Each work crew shall have a designated person on the work site who has the authority to respond to inquiries about work details or priorities. 4 • Litter Removal: Contractor shall pick up trash and debris throughout each park and rights-of-way prior to mowing or performing any maintenance work in the respective parks. Contractor shall remove all litter from the gutters, sidewalks, and rights-of-way and place the same in plastic trash bags. Removal and disposal of trash and debris shall be the sole responsibility of the Contractor, and the Contractor agrees that he shall be responsible for all landfill fees, if any, associated with the disposal of the trash and debris. Any trash and litter, cut or broken during maintenance operations, shall be completely removed from park and boulevard areas immediately prior to proceeding with the maintenance of other areas. Landscaping: All landscaped areas as indicated on the map identified as Exhibit "A,"which is attached hereto and incorporated herein for all intents and purposes, shall be maintained in a neat and pleasant appearance. Shrub hedges, ground covers, and vines shall be kept pruned according to the recommended National Recreational Park Association and Horticultural Practices. Beds and landscaped areas are to be kept free of weeds and grass. Weed and grass control in beds shall include hand pulling and cultivating to maintain a loose aerated top layer. Bed edges are to be kept clean and well defined. The City reserves the right to install additional landscaping at its own expense, with maintenance being the responsibility of the Contractor. Mowing: The grass shall be maintained/mowed to an approximate height of one and one-half inch(1%2")to two inches (2") at least once every ten(10) working days during the growing season. Upon completion, a mowed area shall be free of clumped grass and tire tracks or ruts from the mowing equipment. Turf shall be cut in a professional manner so as not to scalp turf or leave areas of clippings on any paved surface such as streets,parking lots, sidewalks or driveways or on adjacent properties. Any material so discharged shall be removed immediately prior to proceeding 5 • with mowing of other areas. Removal of cut grass from the ground areas where growth occurred will not be required. Cut grass and debris which falls or is thrown by equipment upon the pavement streets, sidewalks, driveways or adjacent properties through the action of the Contractor or his work crew shall be removed from the area prior to the exit of the Contractor or his work crew from the immediate work site. Trimming: All park structures,trees,poles,tables, signs, fences and shrub beds are to be trimmed closely. Special care shall be given to trimming around small trees so as not to inflict damage to the bark of the trees. No pruning of any shrub or tree shall be permitted without prior approval of the Superintendent. Removal of weeds and unwanted plant growth: All plant growth in cracks,seams and/or joints of paved areas such as tennis courts, basketball courts,jogging trails, sidewalks, curbs and driveways shall be cut down to the pavement surface during the completion of each maintenance cycle. All vines must be removed where they exist as a result of natural growth and not planted by intent as part of landscaping material, i.e.,poison ivy, wild grape, Virginia creeper, etc. All are to be pruned removed and the stump treated with herbicide to prevent regrowth. Contractor will be responsible throughout the contract period to manually remove all weeds and foreign plant growth from shrub beds, mulched areas, and interior play areas during each cycle. Weeds and foreign growth in the shrub beds may be controlled with selective herbicides if Contractor has sought and obtained prior written approval of the Superintendent prior to the herbicide application. Trash and mulch areas shall be reshaped within twenty-four(24)hours when dislodged by mowing equipment or any other equipment or instrumentalities of the Contractor. Contractor will remove all sucker 6 - - J 110 • growth from the bases and lower trucks of trees within the project area. Damages to trees will result in a breach of this contract and the Contractor shall be assessed for liquidated damages for the same. Edging: All sidewalks,curbs and steps must be mechanically edged to a one inch(1") depth and one-fourth inch (1/4") width where they exist using a metal blade exposing the concrete surface,the initial edging shall be completed by the end of the first maintenance cycle and all edges must be maintained through duration of contract. Edging may be accomplished with a string line trimmer after the first initial mechanically edge cut. The Contractor when edging shall use a vertical cut approach. All material dislodged by edging must be removed from the site prior to the Contractor or his work crew exiting such site. Sidewalks must be edged on both sides. Herbicides: Contractor shall keep all curbs, gutters, sidewalks and paved areas free of grass and weeds, including curbs and gutterlines and joints in the sidewalks. This may be accomplished by the use of an approved herbicide. Prior to using a herbicide, the Contractor shall obtain written permission to use of the herbicides from the Parks Superintendent and shall provide all material safety data sheets and Proof of Certification of each person licensed by the Texas Department of Agriculture or Structural Pest Control Board to administer pesticides and herbicides in the State of Texas to the City prior to the herbicide being applied. All herbicides shall be applied according to the manufacture's specifications. Pesticides shall only be administered by persons certified by the Texas Department of Agriculture of Structural Pest Control Board to administer the same. 7 • • IV. LANDSCAPING SCHEDULE Both the Contractor and the City acknowledge that time is of the essence in this Agreement. As such, Contractor shall perform all of the maintenance services required herein on all assigned properties every two (2) weeks as more definitively described below. Such two week cycles shall run from March 4, 1996, to September 27, 1996. The maintenance schedule for the 1996 year shall be as follows: 1. March 4, 1996 to March 15, 1996 2. March 18, 1996 to March 29, 1996 3. April 1, 1996 to April 12, 1996 4. April 15, 1996 to April 26, 1996 5. April 29, 1996 to May 10, 1996 6. May 13, 1996 to May 24, 1996 7. May 27, 1996 to June 7, 1996 8. June 10, 1996 to June 21, 1996 9. June 24, 1996 to July 5, 1996 10. July 8, 1996 to July 19, 1996 11. July 22, 1996 to August 2, 1996 12. August 5, 1996 to August 16, 1996 13. August 19, 1996 to August 30, 1996 14. September 2, 1996 to September 13, 1996 15. September 16, 1996 to September 27, 1996 8 �i i The Superintendent has the authority to cancel scheduled maintenance cycles at any time. Such cancellation shall be based upon need,prevailing weather conditions, and available funding. The Contractor shall be notified of any cancellation at such time that the work order is requested for any maintenance cycle. V. INSPECTION BY THE CONTRACTOR The Contractor acknowledges its responsibility for inspecting of the property prior to bidding and to inform itself regarding local conditions. After the City awards the bid, the Contractor in the presence of the Superintendent must make an additional inspection of each of the park areas on which he will be performing maintenance and landscaping services pursuant to this contract prior to beginning the first maintenance cycle. The purpose of such additional inspection shall be to provide the Contractor an opportunity to inspect and document any damage to any structure or tree which could have occurred from prior maintenance and/or landscaping work. The documentation of any tree or facility damage must be submitted to the Superintendent prior to any work being performed under this Agreement. The failure to so submit a written list of damages observed by the Contractor shall result in the presumption that no damages were found. Contractor understands and agrees that the Superintendent shall inspect all trees and facilities intermittently throughout the contract period and again at the end of the same and that the Contractor shall be solely liable for any damages to said trees and facilities which are found and not documented and submitted as required by this paragraph. Such damages shall be computed as described in Article XII. 9 • • VI. WORK ORDERS AND ASSIGNMENTS Contractor shall obtain from the Superintendent a work order for each cycle before initiating any work on such cycle. Each work order shall enumerate the municipal properties designated for grounds maintenance, which shall include at a minimum Briarwood Park, Central Heights Park, Busch Terrace Park, Carver Park, Dale Street Park, Thomas Plaza, Sheppard Park, Walker Park, Pelley Triangle, Defee Triangle,Murdock Park,Police Station,Fire Administration,Bergeron Park, mall medians and Jo Roosa Pavillion. Unless otherwise denoted on such work order,the Contractor must provide full landscaping and maintenance service on each property specified therein. Upon receipt of written notice from the Contractor that the work for a particular cycle is ready for final inspection and acceptance,the Superintendent shall promptly make such inspection. The work assigned in the work order shall be considered complete when the same has been inspected and approved by the Superintendent in writing on the appropriate work order. When the maintenance activities are performed to the satisfaction of the Superintendent,the Superintendent will submit monthly to the Director of Parks and Recreation all approved work orders. The Contractor will be entitled to payment within thirty (30) days after the submission of the approved work order to the Director of Parks and Recreation. Before a work order may be issued for the next work cycle, all terms and conditions of the prior work order must be fully satisfied and approved by the Superintendent. Failure to obtain a work order prior to beginning a maintenance cycle will result in non-payment for work performed for such maintenance cycle. Upon issuance of a work order, Contractor shall begin work and shall proceed with all reasonable diligence to completion. The Contractor will be required to maintain 10 1110 • all project areas assigned to him in the time allotted for each maintenance cycle. Work within a project area must be completed in consecutive days. Inclement weather may result in the cancellation of a mowing cycle only if the Superintendent determines that there was an insufficient time period during the entire mowing cycle available for the services described to be performed. Final assessment of each shall be made by the Superintendent on the morning following the end of each maintenance cycle. VII. INDEMNITY Contractor agrees to and shall indemnify, hold harmless, and defend the City, its officers agents and employees, from and against any and all claims, losses, damages, causes of action, suits and liability of every kind, including all expenses of litigation, court costs, and attorneys' fees, for injury to or death of any person, or for any and all damages arising out of or in connection with the work done by the Contractor pursuant to this Agreement,the conduct or management of Contractor's business or activities, or from any act or omission by Contractor, his agents, servants, employees, subcontractors, guests, or invitee, on or about the premises subject to this Agreement, where such injuries, death or damages are caused by the joint negligence of the City and any other person or entity. It is the expressed intention of the parties hereto, both the Contractor and the City,that the indemnity provided for in this paragraph is indemnity by the Contractor to indemnify and protect the City from the consequences of the City's own negligence, where that negligence is a concurring cause of the resulting injury, death or damage. Furthermore, the indemnity provided for in this paragraph shall have no application to any claim, loss, damage, cause of action, suit and liability where the injury, death, or damage results from the sole negligence of the City unmixed with the 11 • fault of any other person or entity. In the event that any action or proceeding is brought against the City by reason of any of the above, Contractor further agrees and covenants to defend the action or proceeding by legal counsel acceptable to the City. VIII. INSURANCE The Contractor shall at all times during this Agreement maintain in full force and effect insurance as provided herein and which meets the minimum amounts listed below. A certificate of insurance, or a copy of the insurance policies, shall be furnished to the City and shall provide that the City shall receive thirty(30) days prior written notice before any change or cancellation of any policy. (1) Commercial general liability: This coverage must have a general aggregate of $500,000 and a minimum of$250,000 per occurrence. (2) Statutory workers' compensation: This coverage must comply with all statutory amounts as required by Texas law and shall include a Waiver of Subrogation on behalf of the City. (3) Automobile Liability: This coverage shall have combined single limits of$500,000 or limits of$100,000/$300,000/$100,000 are acceptable. All automotive coverage is to include all owned and hired autos , if applicable. (4) All policies are to be of the occurrence form. (5) Should any insurance required by this Agreement lapse, the Contractor shall immediately cease all operations as of the time and date of such lapse, and shall not resume any operations until authorized in writing by the City. If the lapse period extends fifteen(15) days,this 12 • Agreement shall automatically terminate with no notice to the Contractor required and the Contractor shall be in breach of this Agreement. (6) The City of Baytown shall be named as an ADDITIONAL INSURED on said policies of insurance. Contractor shall provide the City with a certificate evidencing the City of Baytown as ADDITIONAL INSURED for coverage after award of bid and prior to receiving an order for purchase of equipment, the beginning of the demonstration period for equipment, or initiation of contracted services. (7) All insurance carriers providing coverage should have an AM Best rating of A or higher and be licensed to do business in the State of Texas. IX. BONDS REQUIRED Both the Contractor and the City agree, that when required by law, the Contractor will execute separate performance and payment bonds, each in the sum of one hundred percent(100%) of the total contract price, in standard forms for this purpose, guaranteeing faithful payment to all persons supplying labor and materials or furnishing the Contractor any equipment in the execution of the Contract, and it is agreed that this Contract shall not be in effect until such performance and payment bonds are furnished and approved by the City. The cost of the premium for the performance and payment bonds shall be included in the Contractor's bid. Pursuant to the Texas Government Code, a performance bond is required if the Contract is in excess of$100,000 and a payment bond is required if the Contract is in excess of$25,000. 13 • Should no performance bond be required by law, the Contractor shall provide a cashier's check, certified check or performance bond for the total amount of one complete maintenance cycle. The check or performance bond shall be made payable to the City of Baytown. If a bond is submitted, it shall be executed by the bidder and by a corporate surety,the qualifications of which shall be as required below. Such performance bond shall expressly provide that the principal and surety shall be liable to the City for the full amount of such performance bond,thereby agreed upon and admitted as the amount of the damages to be suffered by the City on account of the failure of the bidder to so comply with the terms of his bid. If the bidder furnishes a deposit instead of a performance bond, such deposit shall secure the City to the same purpose and effect, as the nature of the security which would have been provided had a performance bond been furnished. The performance bond must be issued by a reliable surety company authorized to do business in the State of Texas. X. INSPECTION OF WORK AND FACILITIES The City shall have the full right to inspect any and all facilities, areas, or equipment owned leased or otherwise used by or in the care, custody, or control of the Contractor. Such inspections may be related to, but are not limited to,verification of work or conditions, safety, damages, or operational interests. XI. AUDIT AND FINANCIAL REGULATIONS The City shall have the right through its agents and employees to audit and examine at all reasonable times, the Contractor's books and financial and operational records which may be 14 • reasonably required by the City in order to enforce the terms of this Agreement or to evaluate the Contractor's performance thereof. Financial records will be maintained with such adequacy so as to allow identification of the source of all revenue and expenditures related to this Agreement. XII. LIQUIDATED DAMAGES Trees in the maintenance project area shall be checked by the Parks Superintendent before contract work begins,and random checks shall be carried out during the contract period at the option of the Superintendent. Additionally,the Superintendent will perform a fmal inspection of all trees and facilities located on the properties where Contractor performed his services at the end of the contract period. The Contractor and the City understand and agree that injury to any tree or damage facility will cause damage to the City and further agree that such damages cannot be accurately measured and that ascertainment of the same will be difficult. Therefore the parties agree that for each and every tree or facility damaged,the City may withhold permanently from the Contractor's total compensation as follows: 1. $75.00 for any slight damage to trees, which is damage that may heal. 2. $150.00 for badly damaged trees which in the opinion of the Superintendent may eventually contribute to the death of the tree. Additionally, in lieu of withholding the specified liquidated damages from the Contractor, the Contractor may pay the City directly for such damages or the City may make a claim under the Contractor's public liability, property damage insurance policy in effect. However, the foregoing agreement as to liquidated damages constitutes only an agreement by the City and the Contractor as 15 • • to the minimum amount of damages which the City will sustain in any event by reason of damage or injury to any tree or facility. Should the City suffer damages over and above the minimum amount specified,the City shall recover such additional amount. The City will have the right to deduct and withhold the amount of any and all such damages, whether it be the minimum amount stipulated above or otherwise from any monies owing by the City to said Contractor, or the City may recover such amount for the Contractor or the sureties on his bond;all such remedies shall be cumulative and the City shall not be required to elect any nor deemed to have an election by proceeding to enforce any one remedy. XIII. CONSTRUCTION OR ALTERATION OF PREMISES The Contractor may not erect, place, alter or remove any buildings, covers, signs, slabs, driveways, roads or facilities of any nature without the prior written consent of the Supervisor, except as necessary for the fulfillment of normal obligations of this Agreement. Such facilities shall become the property of the City of Baytown upon termination or expiration of this Agreement. XIV. TERM All work performed pursuant to this Agreement shall be performed on days not including Saturdays, Sundays, or any legal holidays unless the Contractor has obtained prior written approval to perform work on such prohibited days. The term of this Agreement shall commence on March 4, 1996, and shall remain in force for a period of time not to extend beyond September 27, 1996, unless terminated sooner by the City Manager or his designee. Pricing shall be firm for the initial contract period and all renewal periods thereof. After completion of the initial contract term, 16 • the Agreement may be renewed on an annual basis, when done so at least one (1) month prior to termination of the existing agreement. Such extension must be in writing, signed by both parties and may not extend more than three(3)years beyond the initial contract term. Approval on behalf of the City to renew this Agreement shall be made by the City Manager. XV. TERMINATION (1) The City, besides all other rights or remedies it may have, shall have the right to terminate this Agreement without cause upon ten(10) days written notice from the Supervisor or City Manager to Contractor of the City's election to do so. Furthermore,the City may immediately and without notice terminate this contract if the Contractor breaches this Agreement, which shall include, but not be limited to, the following: (a) By failing to pay insurance premiums, liens, claims or other charges. (b) By failing to pay any payments due the City, State or Federal Government from the Contractor or its principals, including, but not limited to, payments identified in this Agreement any taxes, fees, assessments, or liens. (c) On the institution of voluntary or involuntary bankruptcy proceeding against the Contractor. (d) By death of the Contractor,or dissolution of the Contracting firm or business. (e) By violation of any provision of this Agreement. (f) By the abandonment of the premises or any portion thereof and discontinuance of the Contractor's operations, or any portion thereof Should this occur, the City shall not be responsible for the custodial protection of merchandise, fixtures or equipment abandoned, even though it is necessary for the City to remove the same for storage or disposal. 17 J • • (2) Should the City, in its sole discretion, elect not to terminate this contract for failure to complete an entire maintenance cycle, the Contractor,recognizing that time is of the essence in this contract,hereby expressly agrees that his first failure to complete an entire landscaping cycle in accordance with article IV will result in the forfeiture of a portion of the performance bond in an amount equal to that which was bid for the work cycle and that his second such failure results in automatic termination of this contract. Both the Contractor and the City hereby agree that the Contractor is entitled to no payment for an incomplete cycle unless the direct and sole proximate cause of the Contractor's failure to complete the cycle is the City's termination of this agreement without cause. If the City terminates the Agreement without cause,the Contractor shall be entitled to payment for work satisfactorily performed as of the date of the termination. XVI. ENTIRE AGREEMENT This Agreement along with the Contractor's bid documents shall constitute the entire understanding of the parties hereto with respect to the subject matter hereof, and no amendment, modifications, or alteration of the terms shall be binding unless the same be in writing, dated subsequent to the date hereof, and duly executed by all parties hereto. Furthermore,this Agreement shall not bestow any rights upon any third party,but rather, shall bind and benefit the Contractor and the City only. Should any of the provisions contained in any of the contract documents be in conflict or inconsistent with each other, such conflict or inconsistency shall be construed in favor of the City. Furthermore, both parties express agree that the Director of Parks and Recreation shall be the sole and fmal decision-maker should any conflict arise hereunder. 18 • • XVII. NOTICES All notices required to be given hereunder shall be given in writing by telecopier, overnight, or facsimile transmission, certified or registered mail or by hand delivery at the respective addresses of the parties set forth herein or at such other address as may be designated in writing by either party. Notice given by mail shall be deemed given three (3) days after the date of mailing thereof to the following addresses: CONTRACTOR Niederhofer Enterprises, Inc. P.O. Box 1279 Baytown, TX 77522 CITY City of Baytown Attn: City Manager P.O. Box 424 Baytown, TX 77522 XVIII. COMPLIANCE WITH RULES AND REGULATIONS The Contractor shall comply with all rules, regulations, and laws of the United States of America,the State of Texas,and all laws,regulations, and ordinances of the City of Baytown as they now exist or may hereafter be enacted or amended. XIX. SALE OF INTEREST The Contractor may not sell or assign all or part interest in activities to another party or parties without written approval of the City Manager of such sale or assignment. The City may 19 J • • require any records or financial statements necessary in its opinion to ensure such sale or assignment will be in the best interest of the City. XX. WAIVERS Failure of either party hereto to insist on the strict performance of any of the agreements contained herein or to exercise any rights or remedies accruing thereunder upon default or failure of performance shall not be considered a waiver of the right to insist on and to enforce by an appropriate remedy, strict compliance with any other obligation hereunder to exercise any right or remedy occurring as a result of any future default or failure of performance. XXI. CO-PARTNERSHIP DISCLAIMER It is mutually understood and agreed that nothing in this Agreement is intended or shall be construed as in any way creating or establishing the relationship of partners or co-partners between the parties hereto, or as constituting the Contractor as an agent or representative of the City for any purposes or in any manner whatsoever. XXII. MODIFICATIONS Where changes to activities or areas included in this Agreement are made, payments shall be adjusted in a pro rata manner. All modifications must be made in writing. The City shall have the right to require modification in scope of work. 20 • • XXIII. CONTRACTOR PROVISIONS OF LABOR, ETC. Unless otherwise specifically indicated,the Contractor shall furnish all services, supplies and equipment necessary to perform all activities and covenants of this Agreement. XXIV. CONDITIONS BEYOND CONTROL Neither the City nor the Contractor shall be required to perform any term, condition or covenant of this Agreement so long as performance is delayed or prevented by force majeure,which shall mean acts of God,drought,floods,material or labor restrictions by any governmental authority, and any other cause not reasonably within the control of either party in which,by the exercise of due diligence,the City or Contractor is unable to prevent or overcome. XXV. VENUE This Agreement shall in all respects be interpreted and construed in accordance with and governed by the laws of the State of Texas and the City,regardless of the place of its execution or performance. The place of making and the place of performance for all purposes shall be Baytown, Harris County, Texas. XXVI. NO RIGHT TO ARBITRATION Notwithstanding anything to the contrary contained in this Agreement, the City and Contractor hereby agree that no claim or dispute between the City and Contractor arising out of or relating to this Agreement shall be decided by any arbitration proceeding including, without limitation any proceeding under the Federal Arbitration Act (9 U.S.C. Sections 1-14), or any 21 • • applicable State arbitration statute, including but not limited to the Texas General Arbitration Act, provided that in the event that the City is subjected to an arbitration proceeding notwithstanding this provision, Contractor consents to be joined in the arbitration proceeding if Contractor's presence is required or requested by the City of complete relief to be recorded in the arbitration proceeding. XXVII. SEVERABILITY All parties agree that should any provision of this Agreement be determined to be invalid or unenforceable, such determination shall not affect any other term of this Agreement, which shall continue in full force and effect. XXVIII. AUTHORITY The officers executing this Agreement on behalf of the parties hereby confirm that such officers have full authority to execute this Agreement and to bind the party he/she represents. IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiple copies, each of which shall be deemed to be original,but all of which shall constitute but one and the same Agreement on the a� day of , 19q lam,the date of execution by the City Manager of the City of Baytown. CONTRACTOR: CITY OF BAYTOWN: ak BOBBY RO REE, City Manager 22 _ -1 40 • ATTEST: - — ? EILEEN P. HALL, City Clerk APPROVED AS TO FORM: Z ACID RAMIREZ, ., City Attorney STATE OF TEXAS § § COUNTY OF HARRIS § Before me on 's day personally a eared 1 c\ �)e�Q c-�p`Pr in his capacity as Q 1 C Qk sQ of \ec\erlA0A er t',\�° r ,,e i s on behalf of such corporation,known 1 to me to be the person w ose name is subscribe. e ,he foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed. SUBSCRIBED AND SWORN before me thisa'S day of SI 19klp. ) 9; (1_1/4 a , �t,„����Nl.,.,„,iii ('Not Publi in and for the e of T / as :~` \ PllYR& O& <C/�;'?� -,-,�1, -: �7r ems= 6- O F (� A ""1��2 r ig'lll" c:Udh 13\parks\landscap.wpd 23