Ordinance No. 8,170VbV1Vd /
ORDINANCE NO. 8170
® AN ORDINANCE ACCEPTING THE BID OF NIEDERHOFER ENTERPRISES,
INC., FOR SECTIONS I AND R OF THE ANNUAL MOWING, EDGING AND
TRIMMING SERVICES CONTRACT AND AUTHORIZING PAYMENT BY THE
CITY OF BAYTOWN, THE SUM OF FORTY -ONE THOUSAND FIVE
HUNDRED TWENTY -FIVE AND NO /100 DOLLARS ($41,525.00); 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 December 18, 1997; 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., Thursday,
December 18, 1997, 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 Section I, Contract Mowing Sites, of the annual mowing, edging
and trimming services contract for the sum of THIRTY -TWO THOUSAND THREE HUNDRED
TWENTY -FIVE AND NO /100 DOLLARS ($32,325.00), and authorizes payment thereof.
Section 2: That the City Council of the City of Baytown hereby accepts the bid of
Niederhofer Enterprises, Inc., for Section II, Bayland Park Mowing Cycles, of the annual mowing,
edging and trimming services contract for the sum of NINE THOUSAND TWO HUNDRED AND
NO / 100 DOLLARS ($9,200.00), and authorizes payment thereof.
Section 3: 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 percent (25 %) or decreased by more than twenty-five percent (25 %)
without the consent of the contractor to such decrease.
Section 4: This ordinance shall take effect immediately from and after its passage by the
City Council of the City of Baytown.
980108 -7a
40 INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City
of Baytown this the 8h day of January, 1998.
PETE C. ALFAR , Mayor
ATTEST:
EILEEN P. HALL, City Clerk
APPROVED AS TO FORM:
. ! RANUREZ,
,� Attorney
c:W yDocuments\CouncillMeetingsV anuarylAnnual MowEdgeTrimContractSecti onsI &rlNiederhofer.8. doc
® 2
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CITY OF BAYTOWN
ANNUAL MOWING, EDGING AND TRIMMING SERVICES CONTRACT
STATE OF TEXAS §
COUNTY OF HARRIS §
WHEREAS, the City of Baytown desires to obtain services for grounds and facilities
maintenance at Property; and
WHEREAS, the City desires such services be safe, economical, and effective and result
in a coordinated and responsive maintenance program for the Property; and
WHEREAS, the Contractor desires to provide such services in accordance with the terms
of the Contractor's bid, the bid documents and this Agreement;
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS:
I.
SCOPE
This service agreement, hereinafter known as "Agreement" is made and entered into this
16' day of January, 1998, by and between the City of Baytown, a municipal corporation located
in Harris and Chambers Counties, Texas, hereinafter known as the "City," and Ronald
Niederhofer,Neiderhofer Enterprises, Inc., hereinafter known as the "Contractor."
Contractor agrees to furnish all the material and perform all Work in a timely and
workerlike manner as required herein. In return, the City agrees to pay the Contractor the price
per Property as shown in the Contractor's bid documents for each successfully completed
maintenance cycle which bid documents form a part of this Agreement and are incorporated
herein by this reference for all intents and purposes. All payments, however, shall be subject to
the terms and conditions herein. Furthermore, should there be a conflict between the terms of the
bid documents and the terms of this Agreement, the terms of this Agreement shall control.
II.
Annual Mowing,Edging and Trimming Services Contract,Page 1
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DEFINITIONS
The following words shall, unless the context otherwise requires, have the meanings
ascribed to them below:
Area Inspector shall mean the duly authorized representative of the Director of Parks and
Recreation who shall monitor the Contractor's progress within the maintenance project areas to
which he/she is assigned.
City Manager shall mean the City Manager of the City of Baytown or his designated
representative.
Debris shall 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 the
Property.
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 of any approved herbicide 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, as
determined by the Superintendent.
Landscaping shall mean the use of materials 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 specifically established for the
Property for the project year within which all prescribed Work for the Property shall be
completed.
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Litter shall mean any debris, trash, garbage, tree limbs, fragments, remains, ruins, rubble
of loose materials of any nature which may distract from the appearance of the landscaping
maintenance project areas. Such term shall include, but not be limited to, paper, cans, bottles,
limbs 3" or smaller in diameter, rocks, etc., which are not intended to be present as part of the
landscape.
Litter removal shall mean the removal of litter and debris from the assigned landscaping
maintenance project area as determined by the Area Inspector. Litter removal shall require
sweeping of hard surface areas such as sidewalks and driveways, as well as the removal of dead
animals. The issuance of a work order for Litter Removal only, does not require mowing,
trimming, landscaping or edging.
Maintenance cycle shall refer to each time period in the landscaping schedule, which is
further detailed in Exhibit "A," which is attached hereto and incorporated herein for all intents
and purposes. Each maintenance cycle is defined by a beginning and ending date, during which
all prescribed Work 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.
Property means the properties, whether singular or plural, more specifically depicted in
Exhibit"B"which is attached hereto and incorporated herein for all intents and purposes.
Scalping shall refer to any action which results in the mowing of any turf area below
three and one-half inches (31/2") 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.
Trimming shall refer to the cutting or removal of all plant material immediately adjacent
to orr under the park structures, trees, poles, culverts, tables, signs, fences, shrub beds, etc., and
shall also include removal of all plant material from expansion joints and any other cracks in
curbs, sidewalks (both sides), driveways, parking lots and any other concrete surface within the
right-of-way.
Work shall refer to those certain landscaping and maintenance services required in this
Agreement, including, but not limited to, mowing, trimming, edging, landscaping, watering the
Annual Mowing,Edging and Trimming Services Contract,Page 3
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Property and litter removal as well as any other related services for the Property as specified in
this Agreement, the bid documents and in Exhibit"C," which is attached hereto and incorporated
herein for all intents and purposes.
III.
CONTRACTORS RESPONSIBILITIES
Equipment: Contractor shall use the equipment which is specified in the Contractor's
bid documents or equipment of a comparable or higher quality for the performance of his
obligations under this Agreement. Such list of equipment is attached hereto and incorporated
herein as Exhibit"D." Contractor warrants that all such equipment listed in the bid documents is
adequate for the Work. 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 Agreement. 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.
Litter Removal: Contractor shall pick up litter and debris throughout the Property
prior to mowing or performing any Work. 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
litter 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 litter and
debris. Any litter, cut or broken during maintenance operations, shall be completely removed
from the Property immediately and prior to proceeding with the maintenance of other areas.
Landscaping: All of the Property's landscaped areas 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.
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Mowing: The grass shall be maintained/mowed to an approximate height of one and
one-half inch (11/2") 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 with Work on another Property. 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 Property of the immediate work site.
Trimming: All 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 sidewalks, curbs, parking areas 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 Agreement 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. Litter 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 growth from the bases and lower trunks of trees within the
project area. Damages to trees will result in a breach of this Agreement 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 the Agreement. 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.
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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 the herbicides from the 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 manufacturer's specifications. Pesticides shall only be
administered by persons certified by the Texas Depai linent of Agriculture of Structural Pest
Control Board to administer the same.
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 Work required herein on the Property
each maintenance cycle.
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 or at any other time thereafter as may be deemed
appropriate by the Superintendent.
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 the
Property on which the Contractor will be Work pursuant to this Agreement 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 prior to the 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 term of this
Agreement and again at the end of the same. The Contractor shall be solely liable for any
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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 MI.
VI.
WORK ORDERS AND ASSIGNMENTS
Contractor shall obtain from the Superintendent a work order for each maintenance cycle
before initiating any Work on such cycle. Unless otherwise denoted on such work order, the
Contractor must provide full landscaping and maintenance service on the Property.
Upon receipt of written notice from the Contractor that the Work for a particular
maintenance 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 maintenance 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 perform all of the Work on the Property assigned to him in the work order 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
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OR IN CONNECTION WITH THE WORK PERFORMED OR REQUIRED TO BE
PERFORMED BY THE CONTRACTOR, HIS AGENTS, SERVANTS, EMPLOYEES,
AND/OR SUBCONTRACTORS 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, AND/OR SUBCONTRACTORS ON OR ABOUT THE PROPERTY,
WHERE SUCH INJURIES, DEATH OR DAMAGES ARE CAUSED BY THE JOINT
NEGLIGENCE OF THE CITY, ITS OFFICERS, AGENTS AND ANY OTHER PERSON
OR ENTITY AND/OR BY THE JOINT OR SOLE NEGLIGENCE OF CONTRACTOR,
HIS OFFICERS, AGENTS, EMPLOYEES, AND/OR SUBCONTRACTORS. 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 (I) THE NEGLIGENCE OF THE CITY, ITS
OFFICERS, AGENTS AND/OR EMPLOYEES, WHERE THAT NEGLIGENCE IS A
CONCURRING CAUSE OF THE RESULTING INJURY, DEATH OR DAMAGE
AND/OR (II) CONTRACTOR'S, HIS AGENTS', SERVANTS', EMPLOYEES', AND/OR
SUBCONTRACTORS' JOINT AND/OR SOLE NEGLIGENCE. 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, ITS OFFICERS AGENTS AND/OR
EMPLOYEES UNMIXED WITH THE 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 or exceeds the following minimum limits:
1) Commercial general liability: This coverage must have a general aggregate of
$500,000 and a minimum of$250,000 per occurrence.
a) Coverage shall be at least as broad as ISO CG 00 01 10 93.
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b) No coverage shall be excluded from standard policy without notification of
individual exclusions being attached for review and acceptance.
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) Business 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) Upon execution of this Agreement, the Contractor shall file with the City valid
certificates of insurance and endorsements acceptable to the City. Such certificates
shall contain a provision that coverage afforded under the policies will not be
canceled, suspended, voided, or reduced until at least thirty (30) days' prior written
notice has been given to the City via certified mail, return receipt requested.
5) The Contractor shall also file with the City valid certificates of insurance covering all
of its subcontractors.
6) The following are general requirements which are applicable to all policies:
a. AM Best Rating of A:VII or better.
b. Insurance carriers must be licensed and admitted to do business in the State of
Texas.
c. Liability policies will be on occurrence form.
d. City, its officials and employees are to be added as Additional Insured to
liability policies.
e. Upon request of and without cost to the City, certified copies of all insurance
policies and/or certificates of insurance shall be furnished to City of
Baytown's representative. Certificates of insurance showing evidence of
insurance coverage shall be provided to the City's representative prior to
execution of this Agreement.
f. Upon request of and without cost to the City, loss runs (claims listing) of any
and/or all insurance coverages shall be furnished to the City's representative.
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7) 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 Agreement shall automatically terminate with no notice
to the Contractor required and the Contractor shall be in breach of this Agreement.
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 Agreement price, in standard forms for this purpose, guaranteeing faithful
performance of the Work required herein as well as payment to all persons supplying labor and
materials or furnishing the Contractor any equipment in furtherance of this Agreement. It is
expressly agreed that this Agreement 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.
If the Contractor is not required pursuant to the preceding paragraph to provide a
performance bond, Contractor shall provide a cashier's check, certified check or bond in a form
satisfactory to the City Attorney for the total amount of one complete maintenance cycle. The
check or bond shall be made payable to the City of Baytown. If a bond is submitted, it shall be
executed by the Contractor and by a corporate surety, the qualifications of which shall be as
required below. Such bond shall expressly provide that the principal and surety shall be liable to
the City for the full amount of such 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 Contractor to so comply with
the terms of this Agreement. If the Contractor furnishes a check instead of a bond, such check
shall secure the City to the same purpose and effect, as the nature of the security which would
have been provided had a bond been furnished. The bond must be issued by a reliable surety
company admitted and 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.
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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
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 Work begins, and random checks shall be carried out during the term of the Agreement 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 Agreement 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 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;
Annual Mowing,Edging and Trimming Services Contract,Page 11
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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 ON OR AL l'ERATION OF THE PROPERTY
The Contractor may not erect, place, alter or remove any buildings, covers, signs, slabs,
driveways, roads or facilities of any nature on the Property 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.
PERM
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 from the Superintendent to perform Work on such prohibited days. The term of this
Agreement shall commence on January 8, 1998, and shall remain in force for a period of time not
to extend beyond December 31, 1998, unless terminated sooner by the City Manager or his
designee. Pricing shall be firm for the initial Agreement period and all renewal periods thereof.
After completion of the initial Agreement term, 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 Agreement 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
teiniinate this Agreement without cause upon ten (10) days' written notice from the Supervisor
or City Manager to the Contractor of the City's election to do so. Furthermore, the City may
immediately and without notice terminate this Agreement 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;
Annual Mowing,Edging and Trimming Services Contract,Page 12
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b) By failing to complete an entire maintenance cycle as and when required in
this Agreement;
c) 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;
d) On the institution of voluntary or involuntary bankruptcy proceeding against
the Contractor;
e) By death of the Contractor, or dissolution of the Contracting firm or business;
f) By violation of any provision of this Agreement; and/or
g) By the abandonment or discontinuance of the Contractor's operations for a
period of thirty (30) days. Should this occur, the City shall not be responsible
for the custodial protection of merchandise, fixtures or equipment abandoned,
even though it may be necessary for the City to remove the same for storage
or disposal in its sole discretion.
(2) Should the City, in its sole discretion, elect not to terminate this Agreement for
failure to complete an entire maintenance cycle, the Contractor, recognizing that time is of the
essence in this Agreement, hereby expressly agrees that his first failure to complete an entire
landscaping cycle in accordance with Article IV hereof will result in the forfeiture of a portion of
the check or bond in an amount equal to that which was bid for the maintenance cycle and that
his second such failure results in termination of this Agreement, at the election of the City. 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 and all exhibits incorporated
herein, shall constitute the entire understanding of the parties hereto with respect to the subject
matter hereof, and no amendment, modification, 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
Annual Mowing,Edging and Trimming Services Contract,Page 13
• •
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 City Manager shall be the sole and final decision-maker should any conflict arise
hereunder. In the event of any such conflict or any ambiguity in any of the terms of this
Agreement, such conflict or ambiguity shall not be construed for or against any party hereto on
the basis that such party did or did not author the same.
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
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
Annual Mowing,Edging and Trimming Services Contract,Page 14
• •
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
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, which may entail adding maintenance
cycles for the Property.
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.
Annual Mowing,Edging and Trimming Services Contract,Page 15
•
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
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
Annual Mowing,Edging and Trimming Services Contract,Page 16
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 an original, but all of which shall constitute but one
and the same Agreement on the 16th day of January, 1998, the date of execution by the City
Manager of the City of Baytown.
CONTRACTOR:
CITY OF BAYTOWN:
BOBBY ROUN E, City Manager
ATTEST:
EILEEN-P HALL, City Clerk
APPROVED AS TO FORM:
411/
CIO RAMIREZ`, SR., Ci A orney
STATE OF TEXAS §
Annual Mowing,Edging and Trimming Services Contract,Page 17
• •
COUNTY OF HARRIS §
Before me on thi a ers narly ape e \�
12 C V� I ep in his capacity
as/C���� of� Q %.k ktA on behalf of such corporation,
known to me to be the person wh name > ►bscribed to the foregoing instrument and
acknowledged to me that he executed the same for the purposes and consideration therein
expressed.
SUBSCRIBED AND SWORN before me this day of U, ,
1998.
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`.�1Q••"0ARY,o&.'• ''• f Not ublic ' and for the State o exas,
j c� ,OP '•.• *
42.
��i C� .��'�RES .•••
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