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Ordinance No. 9,334ORDINANCE NO. 9334 ® AN ORDINANCE OF THE CITY COUNCIL, CITY OF BAYTOWN, TEXAS, RENEWING THE CONTRACTS OF NIEDERHOFER ENTERPRISES, INC., AND MIRACLE MAINTENANCE CONCEPTS FOR THE ANNUAL VACANT LOT MOWING CONTRACT AND' AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN, THE SUM OF EIGHTY THOUSAND THREE HUNDRED SEVENTY -FIVE AND NO 1100 DOLLARS ($80,375.00); MAKING OTHER PROVISIONS RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. WHEREAS, Niederhofer Enterprises, Inc., and Miracle Maintenance Concepts were awarded the Annual Vacant Lot Mowing Contract on March 13, 2001, pursuant to competitive bidding procedures, which contract included an option by the parties to renew for four additional one -year periods; and WHEREAS, Niederhofer Enterprises, Inc., and Miracle Maintenance Concepts have indicated their willingness to renew the contract for an additional year under the same terms and conditions; and WHEREAS, the Administration has reviewed the market conditions and recommends renewal as being in the best interest of the City; 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 renews the contract of Niederhofer Enterprises, Inc., for Item No. 1 of the Annual Vacant Lot Mowing Contract for the sum of SIX THOUSAND AND NO /100 DOLLARS ($6,000.00), and authorizes payment thereof Section 2: That the City Council of the City of Baytown hereby renews the contract of Miracle Maintenance Concepts for Item Nos. 2, 3 and 4 of the Annual Vacant Lot Mowing Contract for the sum of SEVENTY -FOUR THOUSAND THREE HUNDRED SEVENTY -FIVE AND NO /100 DOLLARS ($74,375.00), 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 TWENTY -FIVE THOUSAND AND NO /100 DOLLARS ($25,000.00) or less, provided 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. 7c ® INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of Baytown this the 14th day of March, 2002. A, c' � - PETE C. ALFARO, Mayor ATTEST: G W. SMITH, City Clerk APPROVED AS TO FORM: ACIO RAMIREZ, W, City Attorney F:Ueanene\My Documents\Councii\O] -02\ March\ RenewAnnualVacantLotMowingContract .doc 0 • CITY OF BAYTOWN MOWING SERVICES CONTRACT- BID #016 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 5th day of March , 2002, 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 City of Baytown Facility 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 Arsenal (ground barrier or long term chemical) 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 hard surface areas including sidewalks, cracks,pavements, medians, etc. 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. Roundup or approved equal with a pre-emergent may be sprayed in high maintenance areas such as trees, telephone poles, sign poles, playground equipment, etc., to reduce high maintenance cost by contractor. 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. Contractor shall not utilize City of Baytown facilities trash cans or dumpsters for litter removal. Maintenance cycle shall refer to each time period in the landscaping schedule, which is further detailed in Exhibit "C," 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 weed growth shall be removed. Mulch beds shall refer to applying new pine bark mulch, 3 inches thick to all existing beds. Property means the properties, whether singular or plural, more specifically depicted in Exhibit"A"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. 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 specified 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 "B," 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. All fallen tree branches shall be removed before each mowing. Excessive grass clippings shall be removed by the Contractor. 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, mowed over, cut or broken during maintenance operations, shall be completely removed from the Property immediately and prior to proceeding with the maintenance of other areas. Contractor shall not utilize City facilities,trash cans, or dumpsters for litter removal Landscaping: All of the Property's landscaped areas shall be maintained in a neat and pleasant appearance. Shrub hedges, ground covers, vines, and trees 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 (1-1/2") 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. 4111 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. The Contractor will be responsible for replacement or compensation for damaged plant materials. Pruning: All shrub hedges, ground covers, vines, and trees shall be kept pruned according to the recommended National Recreational Park Association and Horticultural Practices. 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. Mulching: Mulching of beds for specified locations as determined in the specifications shall be performed four (4) times per year, during the months of May, August, November, and February. Mulch beds shall refer to applying new pine bark mulch, 3 inches thick to all existing beds. Ems: 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 only be administered by persons certified by the Texas Department 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 during each maintenance cycle as outlined in the attached Exhibits. The Superintendent has the authority to cancel and/or add scheduled maintenance cycles,properties, and/or work required at any time. Such cancellation/additions shall be based upon need, prevailing weather conditions, and available funding. The Contractor shall be notified of any cancellation/addition 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. Any additions shall require Contractor to provide estimates prior to work being performed and approved by Superintendent. The City of Baytown may seek estimates or service elsewhere for any additional work, maintenance cycles, or properties added whereby Contractor's estimate(s) are deemed excessive. 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. WORK ORDERS AND ASSIGNMENTS Contractor shall comply with each department's designated representative as to paperwork required prior to or after completion of mowing cycles. All departments shall require Contractor to provide written confirmation of completion of each cycle and location mowed before payment can be authorized. Parks Superintendent may issue work orders prior • to cycle mowing. Parks Department shall require written notification of each location as completed in order for inspection of each property to be performed. 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 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. • VDT. 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. 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 I • 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. 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. In the event no performance bond be required by law, the City of Baytown shall require the, Contractor to provide a cashier's check, certified check, (no company checks acceptable), or performance bond for the total amount of one complete maintenance cycle. The cashier's check, certified check, or performance 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 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 Contractor to so comply with the terms of his bid. If the Contractor 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. �► 40 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 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. XIII. 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. • • 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 from the Superintendent to perform Work on such prohibited days. All miscellaneous facilities under Exhibit Section V may prefer Contractor to perform related work on weekends. Final decision rests with the individual department's Superintendent and mutual agreement with Contractor. The term of this Agreement shall commence on MARCH 1, 2002, and shall remain in force for a period of time not to extend beyond FEBRUARY 28, 2003, 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 three (3) 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. Additionally, the Bidder understands and agrees that upon the City's written request, this contract may be extended for a period of time,not to exceed two (2)months after the expiration of the initial term or any renewal thereof, for the same compensation as the Bidder was receiving for the goods and/or services during the expired term immediately preceding the extension. Nothing contained herein, however, shall obligate the City during the extension period to renew and/or relet a contract with the Bidder for such goods and/or services. The City of Baytown may terminate extension at any time for any reason without prior notice. 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 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 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 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 NIEDERHOFER ENTERPRISES,INC. ATTN: RON NIEDERHOFER P. O. BOX 1279 BAYTOWN,TEXAS 77522-1279 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 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 or deleting 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. 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 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 5th day of March , 2002, the date of execution by the City Manager of the City of Baytown. NIEDERHOFER ENTERPRISES, INC. N NIEDERHOFER,O R CITY OF BAYTOWN: ONTE MERC , City Manager ATTEST: // G Hity Clerk APPROVED AS TO FORM: ACIO RAMIREZ, '144, City Attorney • • STATE OF TEXAS: COUNTY OF HARRIS: Before me on this day personally appeared Ron Niederhofer in his capacity as Owner of NIEDERHOFER ENTERPRISES, INC., 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 5th day of March 2002. P N q �� NGG Z AP l k .�p_ = Notary blic i d for the a e, • -�TF of • of S1h/016-02 1-24-02 SLH c:Uc1h6TContracts\MowingContract\AnnualMowingContract.AllAreas.doc