Ordinance No. 8,495990114 -19
ORDINANCE NO. 8495
AN ORDINANCE ACCEPTING THE BID OF NIEDERHOFER ENTERPRISES, INC., FOR THE
ANNUAL LIFT STATIONS MOWING CONTRACT AND AUTHORIZING PAYMENT BY
THE CITY OF BAYTOWN, THE SUM OF THIRTEEN THOUSAND AND NO 1100 DOLLARS
($13,000.00); 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 lift stations mowing contract to be received January 4, 1999; 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., Monday, January 4, 1999, 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 lift stations mowing contract for the sum of THIRTEEN THOUSAND AND NO 1100
DOLLARS ($13,000.00) 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 percent (25 %) or decreased by more than
twenty-five percent (25 %) 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 14`h day of January, 1999.
e2A e.
PETE C. ALFARO, Mayor
ATTEST:
EfLEEN P. HikILL; City Clerk
APPROVED AS TO FORM:
ACIO RAMIREZ, SR., WAttomey
c:1M y Documents \Counci]1MeetingsUanuary\Amwa] Li ftStationsMowingContract, doc
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CITY OF BAYTOWN
ANNUAL LIFT STATIONS MOWING 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
s service agreement, hereinafter known as "Agreement," is made and entered into this
2J1 ✓—day of January, 1999, by and between the City of Baytown, a municipal corporation located in
Harris and Chambers Counties, Texas, hereinafter known as the "City," and NIEDERHOFER
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.
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 Wastewater
Treatment 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.
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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.
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 (3-1/2") in height down to and including the soil.
Shrub bed shall mean any purposefully planted domestic, ornamental plant growth.
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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 Wastewater Treatment Department of the City
of Baytown, or his designated representative.
Trimming shall refer to the cutting or removal of all plant material immediately adjacent to or
under the structures, trees, poles, culverts, guardrails, concrete walls, walkways, driveways, manhole lids,
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 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.
CONTRACTOR'S 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
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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 (1-1/2") 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 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.
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
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only be administered by persons certified by the Texas Depaitinent 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 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.
VI.
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 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
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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 (H)
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.
VII.
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.
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.
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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.
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.
VIII.
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 bid guarantee in the form of a cashier's check, or certified check, drawn
on a bank authorized to do business in the State of Texas and acceptable to the City, or a bid bond, in the
amount equal to ten percent (10%) of the total amount bid, as a guarantee that the successful Contractor
will enter into a Contract, and provide the required insurance certificate within one (1) week after
Contractor receives notice that the Contract has been awarded to him. No company checks will be
accepted. The surety on the bid bond must be duly authorized by the State Board of Insurance to do
business in the State of Texas and to execute and issue bid bonds. The bid bond, if provided, must be
executed by the principal of firm submitting the bid and an Attorney-in-Fact of the surety company
residing in the State of Texas and licensed by the Texas State Board of Insurance to write bid bonds on
behalf of the surety. Cashier's checks and bid bonds will be returned to bidder within ten (10) days after
execution of the Contract and the provision of all necessary bonds and insurance.
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IX.
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.
X.
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.
XI.
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 final 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; 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.
XII.
CONSTRUCTION ON OR ALTERATION 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.
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XIII.
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 from the
Superintendent to perform Work on such prohibited days. The term of this Agreement shall commence
on January 1, 1999, and shall remain in force for a period of time not to extend beyond December 31,
1999, 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 for two (2) one-year renewal options, 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 two (2) years beyond the initial Agreement term.
Approval on behalf of the City to renew this Agreement shall be made by the City Manager.
XIV.
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
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;
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
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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.
XV.
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 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.
XVI.
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, TEXAS 77522-1279
CITY
City of Baytown
Attn: City Manager
P.O. Box 424
Baytown, TX 77522
XVII.
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.
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XVIII.
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 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.
XIX.
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.
XX.
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.
XXI.
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 or deleting maintenance cycles for the
Property.
XXII.
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.
XXIII.
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.
XXIV.
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.
.
• •
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.
XXVI.
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.
XXVII.
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 deem to be an original, but all of which shall constitute but one and the same
Agreement on the 0'9 day of January, 1999, the date of execution by the City Manager of
the City of Baytown.
CONTRACTOR:
R NIEDERHOFER, Preside
CITY OF BAYTOWN:
BOBBY ROUNTREE, City Manager
ATTEST~ -�
EILEEN P. JIALI;, City Clerk
APPROVED AS TO FORM:
ACIO RAMIREZ, S City Attorney
• •
STATE OF TEXAS ❑
COUNTY OF HARRIS ❑
Before me on this day personally appeared /64/ rne/ei idet r in his capacity as
o Qi APi' of/!//Pdrjof r-,4k,Artrej',.J c. on behalf of such corporation, known to me
to be the person whose name is subscribed 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,?4,/day of li , 1999.
,,,,.y��oY P aND�Rsoy,�,,' Notary Pu in and for the State of Texas
Slh/066-99 LO r.
1-5-99
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• •
EXHIBIT "A"
MAINTENANCE CYCLES
1. January 4, 1999—January 15, 1999
2. February 1, 1999—February 12, 1999
3. March 8, 1999—March 12, 1999
4. March 22, 1999—March 26, 1999
5. April 5, 1999—April 9, 1999
6. April 19, 1999—April 23, 1999
7. May 3, 1999—May 7, 1999
8. May 17, 1999—May 21, 1999
9. June 1, 1999—June 4, 1999
10. June 21, 1999—June 25,.1999
11. July 3, 1999—July 9, 1999
12. July 19, 1999—July 23, 1999
13. August 2, 1999—August 6, 1999
14. August 23, 1999—August 27, 1999
15. September 6, 1999—September 10, 1999
16. September 20, 1999—September 24, 1999
17. October 4, 1999—October 8, 1999
18. October 18, 1999—October 22, 1999
19. November 15, 1999—November 19, 1999
20.December 13, 1999—December 17, 1999
. • •
EXHIBITS "B"
PROPERTIES
LIFT STATIONS LOCATIONS LINE ITEM
COST
1. Baker Road 3100-1/2 Baker Road
2. Gulf Coast 908 Spur 201
3. Goose Creek— Ginger Creek 3209 W. Cedar Bayou Lynchburg
4. Woodlawn 2205-1/2 Woodlawn Drive
5. James Street 2409 E. James
6. Cedar Landing 5801 Cedar View
7. Allenbrook 4102 Allenbrook
8. Cedar Bayou Lynchburg 403 Cedar Bayou Lynchburg
9. Pinehurst 9510 Bayou Woods
10. Steinman 1712 Steinman
11. #5 (146) 5903-1/2 Hwy. 146
12. #6 (146) 5205-1/2 Hwy. 146
13. Craigmont 3500 Coachman
14. Big Missouri 3312 Missouri Street
15. Cabiniss 128 Cabaniss Street
16. Parkridge Bend 514-1/2 Hillhurst
17. North Main 3701 North Main
18. Julie Anne Villa 10117 Gloria Lane
19. Pinehust#2 7127 Hwy. 146
20. Cedar Bayou Community Center 7703 Hwy. 146
21. Point Royal 333 Natchez
22. Beaumont 1414-1/2 Beaumont Street
• •
1
EXHIBIT "C"
WORK REQUIRED
LIFT STATIONS MOW TRIM EDGE LITTER
Baker Road x x x x
Gulf Coast x x x x
Goose Creek — Ginger x x X x
Creek
Woodlawn x x x X
James Street X X x x
Cedar Landing x x x X
Allenbrook X x x X
Cedar Bayou Lynchburg X x x x
Pinehurst x x X x
Steinman X x X x
#5 (146) x x X x
#6 (146) x X x x
Craigmont X X x X
Big Missouri x X x x
Cabaniss x x x x
Parkridge Bend x x x x
North Main x x x x
Julie Anne Villa x x x x
Pinehurst#2 x x X x
Cedar Bayou x X X x
Community Center
Point Royal x x x x
Beaumont x x x x
• •
•
EXHIBIT "D°'
LIST OF MACHINERY AND EQUIPMENT
The following list of machinery and equipment are available for use on the work covered by this bid. The
machinery and equipment shall be owned and under the control of the Contractor at the time of this bid.
'fin - ' '+c f � y'}r z?t:"`.. }'``o::.`'-z: ": •}` '!(t .. tl=-i•:..,i'' -
"'"' -Og • P OF, QUIPMENT`: ,'. PURCHASE • 'MANUFACTURER �'``�- .;; •`
DATE
i:� :ram. - . � •
-r-
1 36" WALK BEHIND 7/16/91 SNAPPER 25520559
1 60" RIDER MOWER 7/16/97 SNAPPER 93187564
1 BLOWER 3/15/97 ECHO 288400
1 WEEDEATER 6/24/97 ECHO 008002
•
ADD OTHER SHEETS AS NEEDED
NJVIEOFC TR TO : NIEDERHOFER ENT. ,INC.
IGGNA URE: DATE: /.Z v- ! O