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Ordinance No. 9,977ORDINANCE NO. 9977 • AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING AN INTERLOCAL AGREEMENT WITH THE CITY OF PEARLAND, TEXAS, FOR A UNIT PRICE SERVICE CONTRACT FOR A WATER METER CHANGE -OUT AND RETROFIT PROGRAM AND NEW METER SUPPLY CONTRACT; AUTHORIZING A SUPPLEMENTAL AGREEMENT ,WITH SOUTHWEST STAINLESS, L.P., D/B /A HUGHES SUPPLY CONCERNING THE SAME; AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN OF AN AMOUNT OF FIVE MILLION ONE HUNDRED THOUSAND AND NO /100 DOLLARS ($5,100,000.00); MAKING OTHER PROVISIONS RELATED THERETO;AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section l: That the City Council of the City of Baytown, Texas, hereby authorizes and directs the City Manager -to execute and the City Clerk to attest to an interlocal agreement with the City of Pearland, Texas, for a unit price service contract for a water meter; change -out and retrofit program and new meter supply contract. A copy of the agreement is attached hereto as Exhibit "A" and made a part hereof for all intents and purposes. Section 2: That the City Council of the City of Baytown, Texas, hereby authorizes and directs the City Manager to execute and the City Clerk to attest to a Supplemental Agreement with Southwest Stainless, L.P., d/b /a Hughes Supply for a unit price service contract for a water meter change -out and retrofit program and new meter supply contract. A copy of the agreement is attached hereto as Exhibit "B" and made a part hereof for all intents and purposes. Section 3: That the City Council of the City of Baytown authorizes payment to Southwest Stainless, L.P., d/b /a Hughes Supply in an amount of FIVE MILLION ONE HUNDRED THOUSAND AND NO /100 DOLLARS ($5,100,000.00) in accordance with the Interlocal Agreement and Supplemental Agreement authorized herein. Section 4: That in addition to the amount specified in Section 3 hereof, the City Manager is hereby granted general authority to approve a decrease or an increase in costs by TWENTY -FIVE THOUSAND AND NO /100 DOLLARS ($25,000.00) or less, provided that the amount authorized in Section 3 hereof may not be increased by more than twenty -five percent (25 %). Section 5: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. u INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of Baytown this the 13th day of January, 2005. CALVIN MUNDINGER, May ATTEST: G v -q 7 . SN1ITH, City Clerk APPROVED AS TO FORM: 41G- ACIO RAMIREZ, SR ity Attorney • R:\ Karen \Fi1es \Ci1y Counci1\0rdinances\2005Uanuary 13\ PcarlandlnterlocalOrdinancc.doc 2 Exhibit "A" Resolution No. R2004 -87 INTERLOCAL AGREEMENT FOR THE WATER METER CHANGE -OUT AND RETROFIT PROGRAM AND A WATER METER SUPPLY CONTRACT STATE OF TEXAS § COUNTY OF HARRIS § This Agreement made this the 14th day of June , 2004, between the City of Baytown, Texas, a home -rule municipal corporation located in Harris and Chambers Counties, Texas, and the City of Pearland, Texas, a municipal corporation located in Brazoria County, Texas. WITNESSETH Pursuant to the authority granted by the Texas Interlocal Cooperation Act (Tex. Gov't Code Ann. § §791.001, et seq.) providing for the cooperation between local governmental bodies, and pursuant to Subchapter F entitled "Cooperative Purchasing Program" containing Sections 27 1. 101 and 271.102 of the Texas Local Government Code, the parties hereto, in consideration of the premises and mutual promises contained herein agree to as follows: The City of Baytown ( "Baytown ") hereby designates its Purchasing Manager to act under the direction of and on behalf of Baytown for the water meter change- out.and retrofit program and a water meter supply contract, pursuant to Pearland's Agreement with Southwest Stainless, L.P., d/b /a Hughes Supply ( "HSI "), which was let in accordance with Chapter 252 of the Texas Local Government Code and all other applicable laws and which agreement is attached hereto as Exhibit "A" and incorporated herein for all intents and purposes. II. Baytown, by execution of this Agreement, agrees to directly pay HSI after completion and acceptance of the work specified in each work order for Baytown's water meter change -out and retrofit program and /or the supply of water meters, and after receipt of a proper invoice therefor an amount based upon the unit pricing detailed in the attached agreement. Neither Pearland nor Baytown shall assume any responsibility or liability to pay for materials purchased or services performed for the benefit of the other entity. Baytown's payment required by this article shall be made from current, available revenues. Furthermore, both parties agree that the payment required herein fairly compensates Pearland for any services or functions required to be performed under this Agreement. In obtaining the services of HSI through Pearland, Baytown has relied solely on its own inspections, investigations and due diligence regarding the services and Baytown acknowledges that Pearland has made no representations or warranties expressed or implied with respect to the services to be rendered. III. This Agreement shall take effect upon execution by the signatories contingent to the sale of series 2004 Certificates of Obligation and shall serve as each governmental body's commitment pertaining to Baytown's purchase of the services referenced to Article I.hereo£ This Agreement has been authorized by the governing bodies of the parties hereto. , lnterlocal Agreement, Page l `j A C IV. This Agreement shall be in effect from and after the 14thday of June , 2004, the date of execution by Baytown. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their authorized officers the day and year specified in Article IV. CITY OF BAYTOWN GARY JACKSON, City Manager ATTEST: GARY W. SMITH, City Clerk APPROVED AS TO FORM: IGNACIO RAMIREZ, SR., City Attorney F: \Karen\fdes \ContractsUnterlocal AgreementU 'eartandWaterMeterChan- cOut.doe Interlocal Agreement, Page 2 CITY OF PEARLAND t (Signature) Bill Eisen (Printed Name) City Manager (Title) A TTF CT (Printed Name) City Secretary (Title) APPROVED AS TO FORM: (Signature) Darrin Coker (Printed Name) City Attorney (Title) • Exhibit "A" • Resolution No. R2004-87 INTERLOCAL AGREEMENT FOR THE WATER METER CHANGE-OUT AND RETROFIT PROGRAM AND A WATER METER SUPPLY CONTRACT STATE OF TEXAS § COUNTY OF HARRIS § This Agreement made this the 14th day of June , 2004, between the City of Baytown, Texas, a home-rule municipal corporation located in Harris and Chambers Counties, Texas, and the City of Pearland, Texas, a municipal corporation located in Brazoria County, Texas. • WITNESSETH Pursuant to the authority granted by the Texas Interlocal Cooperation Act (Tex. Gov't Code Ann. §§791.001, et seq.) providing for the cooperation between local governmental bodies, and pursuant to Subchapter F entitled "Cooperative Purchasing Program" containing Sections 271.101 and 271.102 of the Texas Local Government Code, the parties hereto, in consideration of the premises and mutual promises contained herein agree to as follows: I. The City of Baytown ("Baytown") hereby designates its Purchasing Manager to act under the direction of and on behalf of Baytown for the water meter change-out.and retrofit program and a water meter supply contract, pursuant to Pearland's Agreement with Southwest Stainless, L.P., d/b/a Hughes Supply ("HSI"), which was let in accordance with Chapter 252 of the Texas Local Government Code and all other applicable ' laws and which agreement is attached hereto as Exhibit "A" and incorporated herein for all intents and purposes. II. Baytown, by execution of this Agreement, agrees to directly pay HSI after completion and acceptance of the work specified in each work order for Baytown's water meter change-out and retrofit program and/or the supply of water meters, and after receipt of a proper invoice therefor an amount based upon the unit pricing detailed in the attached agreement. • Neither Pearland nor Baytown shall assume any responsibility or liability to pay for materials purchased or services performed for the benefit of the other entity. Baytown's payment required by this article shall be made from current, available revenues. Furthermore, both parties agree that the payment required herein fairly compensates Pearland for any services or functions required to be performed under this Agreement. In obtaining the services of HSI through Pearland, Baytown has relied solely on its own inspections, investigations and due diligence regarding the services and Baytown acknowledges that Pearland • has made no representations or warranties expressed or implied with respect to the services to be rendered. III. This Agreement shall take effect upon execution by the signatories contingent to the sale of series 2004 Certificates of Obligation and shall serve as each governmental body's commitment pertaining to Baytown's purchase of the services referenced in Article I hereof. This Agreement has been authorized by the governing bodies of the parties hereto. Interlocal Agreement,Page I V r • IV. This Agreement shall be in effect from. and after the 14thday of June , 2004, the date of execution by Baytown. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their • authorized officers the day and year specified in Article IV. . CITY OF BAYTOWN CITY OF PEARLAND A/5- GARY JACKS , City Manager (Signature) Bi11 Eisen (Printed Name) City Manager (Title) ATTEST: ATTEST: GARY W. SMITH, City Clerk 1 ature) Young Lorfinq, TRMC (Printed Name) City Secretary (Title) APPROVED AS TO FORM: APPROVED AS TO FORM: IZiNACIO RAMIREZ, S ity Attorney (Signature) Darrin Coker (Printed Name) City Attorney (Title) F:\Karen\files\Contracts\Interlocal Agreement\PearlandWaterMeterChangeout.doc Interlocal Aereement,Page 2 SUPPLEMENTAL AGREEMENT CONCERNING THE WATER METER CHANGE -OUT AND RETROFIT PROGRAM AND NEW METER SUPPLY CONTRACT STATE OF TEXAS § § KNOWN BY THESE PRESENTS: COUNTY OF HARRIS § This Supplemental Agreement concerning the Water Meter Change -out and Retrofit Program and new meter supply contract is made this I day of 2004, by and between the City of Baytown, Texas, acting by and through its City Council of the City of Baytown, Texas hereinafter referred to as the "City," and Southwest Stainless, L.P., d/b /a Hughes Supply, a Delaware corporation authorized to do business in Texas, hereinafter referred to as the "Contractor "; and the Parties do hereby make and enter into the following agreement: In General 1.01 Agreement. Both the contract with Pearland and this Supplemental Agreement shall herein be referred to collectively as the "Agreement." Should any term or condition in this document conflict with the contract with Pearland, this document shall control. 1.02 Award of Contract. Upon the execution of this Agreement and prior to performing any work hereunder, the Contractor shall deliver to the City all documents, bonds, and certificates of insurance required in this Agreement. The Contractor shall be prepared to perform the work in the most expedient manner possible due to the commencement of the time for final completion, which shall be — calendar days after the City issues a notice to proceed. The work shall be commenced within ten (10) calendar days of the date specified in the notice to proceed or work order. In the event of any dispute, the records of the City shall be conclusive evidence as to the commencement date. Time is of the essence in this Agreement. 1-03 City's Representative. The project shall be administered by the City's Representative, who shall periodically review and shall inspect the work of the Contractor and inspect the work performed under this Agreement to ensure that said work is performed in accordance with this Agreement. The Contractor shall regard and obey the directions and instructions of City's Representative, provided such directions and instructions are consistent with the obligations of this Agreement. Should the Contractor object to any orders by the City's Representative, the Contractor may within two (2) calendar days from receipt of such order make written appeal to the City Manager for his decision. 1.04 Work. The Contractor shall complete and be responsible for all work as specified, indicated, or described in this Agreement. All work done and all materials furnished shall be in strict conformity with this Agreement. In the event that the Contractor fails to perform the work as required for final completion, the Owner may contract with a third party to complete the work and the Contractor shall assume and pay the costs of the performance of the work specified or contemplated by the Agreement. The Contractor 733. �It� • shall provide and pay for all materials, supplies, machinery, equipment, tools, superintendents, laborers, insurance, fuel, transportation, and all other facilities and utilities necessary for the execution and completion of the work specified or contemplated in the Agreement. All work shall be done and all materials furnished in strict conformity with the Agreement and recognized industry standards. 1.05 Materials. Materials and supplies utilized shall be new and of good quality. No refurbished, reconditioned or other previously utilized materials or supplies will be used without the signed authorization of City. 1.06 Progress of Work. The Contractor shall coordinate its activities and work with the City. If requested by the City's Representative, the Contractor shall provide schedules of planned activities, which may be reviewed on a daily basis. The Contractor shall submit, at such time as may reasonably be requested by OWNER, further schedules that shall list the order in which the Contractor proposes to carry on the work with dates at which the Contractor will start the several parts of the work and the estimated dates of completion of the several parts. The Contractor shall attend additional meetings called by the City or the City's Representative upon twenty-four (24) hours' notice unless otherwise agreed by the parties. Throughout the progress of the work, the Contractor shall keep the working area free from debris of all types and remove from premises all rubbish resulting from any work being done by it. At the completion of the work, the Contractor shall leave the premises in a clean and finished condition. Any failure to do so may be remedied by the City or its designee and charged back to and permanently withheld from the Contractor. 1.07 Inspections. The City reserves the right to enter the property by such employee(s) or agent(s) as it may elect for the purpose of inspecting the work or to perform collateral work as the City deems necessary. Additionally, the City shall have the right, at any reasonable time, to observe and test the work. The City's Representative or the City may reject any work found to be defective or not in accordance with the Agreement, regardless of the state of its completion or the time or place of its discovery and regardless of whether the City had previously accepted the work through oversight or otherwise. Neither observations by the City or the City's Representative nor inspections, tests, or approvals made by the City or the City's Representative, or persons authorized under this Agreement to make such inspections, tests, or approvals, shall relieve the Contractor from its obligation to perform the work in accordance with the requirements of the Agreement. 1.08 Work Stoppage. The City or the City's Representative shall have the right to order the work of the Contractor or any subcontractor wholly or partially stopped immediately (i) if in the judgment of the City or the City's Representative, any of the materials furnished or the work being done is not in strict accordance with this Agreement; (ii) until objectionable materials are removed; or (iii) if any portion of the work is being performed so as to create a hazardous condition. Such stoppage or suspension shall neither invalidate any of the Contractor's performance obligations under this Agreement, including time of performance and deadlines therefor, nor will extra charge be allowed the Contractor by reason of such stoppage or suspension. 1.09 Rejected Work. The City or the City's Representative, in its discretion, may reject any and all work that is found to be defective or deemed not in conformity with this Agreement. The City or the City's Representative may reject said work or any portion thereof regardless of the stage of its completion or time or place of discovery of such errors and regardless of whether the City or the City's Representative has previously accepted the work through oversight or otherwise. In the event that any work or any part thereof is rejected by the City or the City's Representative, the Contractor shall, at its sole expense and after receipt of written notice thereof from the City or the City's Representative remove the rejected work or otherwise remedy such work within the time specified in the notice so that it shall be in full compliance with this Agreement If such rejected work is not remedied within the time period established in the notice, the City may have the work removed, replaced or repaired at the Contractor's expense. 1.010 Time. The Contractor agrees that it shall not be entitled to, nor will it request an extension of time for final completion under this Agreement, except if the work has been delayed by changes ordered in the work, or reductions thereto in writing. Within seven (7) calendar days of any act or incident that the Contractor reasonably believes may justify an extension of time for final completion, the Contractor may apply in writing for an extension of such time, submitting therewith all written justification as may be required by the City. Thereafter, the City's Representative, within seven (7) calendar days after receipt of a written request for an extension of time from the Contractor, which is supported by all requested documentation, shall then grant or deny such written request. The Contractor, in undertaking to complete the work within the time herein fixed, has taken into consideration and made allowance for all hindrances and delays incident to such work, whether growing out of delays in securing material or workmen or weather or otherwise. 1.011 Extensions of Time. No charge whatsoever shall be made by the Contractor for hindrances or delays from any cause whatever, except where the work is stopped by order of the City, during the progress of any portion of the work contemplated by the specifications, but the City's Representative may grant an extension of time for the completion of the work, provided the City is satisfied that such delays or hindrances were due to the extraordinary causes or to the acts of omission or commission by the City. It is agreed that the granting of such extensions of time shall in no instance exceed the time actually Iost by the Contractor for reason of such causes, provided that the Contractor shall give the City immediate notice in writing of the cause of the detention or delay. 1.012 Independent Contractor. The Contractor as an independent contractor covenants and agrees to supply all materials and equipment and perform services as detailed in the contract with the City of Pearland in accordance with this Supplemental Agreement for the City of Baytown. The Contractor represents that it has or will secure at its own expense, all personnel required in performing the services under this Agreement. Such personnel shall not be employees of or have any contractual relationship with the City. The Contractor shall have ultimate control over the execution of the work under this Agreement. It shall be the responsibility of the Contractor to furnish a completed work product that meets the requirements of the City. The Contractor may contract with subcontractors for portions of the work or services under this Agreement with the prior written approval of the City. 1.013 Communications. The Contractor shall forNvard all communications, written or oral, to the City through the City's Representative. 1.014 Payment. The Contractor agrees to perform the work for all of the work under this Agreement and the City agrees to pay the Contractor based upon the unit prices enumerated in the Agreement for the actual amount of accepted work done and materials furnished on the project. Reduction in the scope or quantity of work on unit price items shall merely reduce the number of units. The Contractor shall never be entitled to anticipated or lost profits on the deleted or reduced portion of the work. The City's Representative shall review Contractor's applications for payment and supporting data, determine the amount owed to the Contractor and approve the appropriate payment to Contractor in such amounts. The Contractor shall submit applications to the City's Representative for progress payments no more often than once a month, unless otherwise agreed by the City. Whenever the Contractor's application for payment includes payment for work that is determined to be either (1) not in accordance with this Agreement, or (2) defective, the City may, in its sole discretion, withhold progress payments. Progress payments will be made, less the five percent (5 %) retainage and additional amounts that may be withheld in accordance with this Agreement. The City may suspend at any time suspend progress payments if, in the sole discretion of the City's Representative, it believes that the Contractor will not complete the work due to actual default or that the Contractor has represented or done some act that indicates that the Contractor will not complete the work in accordance with this Agreement. Each undisputed application for payment is due and payable by the City within thirty days following the date of its receipt by the City or within thirty days of receipt of the invoiced services, whichever is later. After final completion and acceptance of the work, the City shall pay the Contractor the remainder of the price due under this Agreement less any sums withheld under other terms of this Agreement. 1.015 Payments Withheld. The City may, on account of subsequently discovered evidence, withhold payment or nullify the whole or part of any acceptance or certificate to such extent as may be necessary to protect the City from loss on account of (i) defective work or work that is not in strict accordance with the terms of this Agreement, (ii) claims filed or reasonable evidence indicating probable filing of claims, as determined at the sole discretion of the City; (iii) failure of the Contractor to make prompt payments to subcontractors or for material or labor or materialmen; (iv) claims filed or reasonable evidence, as determined at the sole discretion of the City, of damage to another contractor or a third party, including adjacent property owners; (v) reasonable doubt, as determined at the sole discretion of the City, that the work can be completed for the unpaid balance of the contract amount; (vi) charges made for repairs to the Contractor's defective work ® or repairs made by the City to correct damage to other property; (vii) claims fled or reasonable evidence as determined at the sole discretion of the City indicating unremedied damage to property owned by the City; or (viii) Other amounts authorized under this Agreement. 1.016 Contract Contin eric . The terms of this Agreement are contingent upon sufficient appropriations and authorization being made by the City for the performance of this Agreement. If at any time during the period of performance, under this Agreement, the City does not make sufficient appropriations and authorizations, this Agreement shall terminate upon written notice being given by the City to the Contractor. The City's decision as to whether sufficient appropriations are available shall be accepted by the Contractor and shall be final. 1.017 Legal Compliance. The Contractor shall secure and pay all permits, fees, licenses, and inspections necessary for the proper execution and completion of the work. Additionally, the Contractor shall have the sole obligation to pay any and all charges and fees and give all notices necessary to and incidental to the lawful prosecution of the work hereunder. The Contractor will not, however, be required to pay for any permit fees for permits to be issued by the City of Baytown, which will be waived in conjunction with this Agreement. The Contractor shall give all notices required by Iaw or that may be otherwise required by the City and comply with all laws, ordinances, regulations, codes, rules and lawful orders of all public authorities bearing on the performance of the work. 1.018 Modification. This Agreement may not be altered, changed or amended except by instrument in writing executed by the parties hereto. 1.019 Abandonment. In case the Contractor should abandon, fail or refuse to resume work within ten (10) days after written notification from the City or the City's Representative or if the Contractor fails to comply with the orders of the City or the City's Representative, when such orders are consistent with the Agreement, then, the sureties on the performance bond shall be notified in writing and directed to complete the work, and a copy of said notice shall be delivered to the Contractor. After receiving said notice of abandonment, the Contractor shall not remove from the work any machinery, equipment, tools, materials, or supplies then on the job, but the same, together with any materials and equipment under contract for the work, may be held for use on the work by the OWNER or the surety on the performance bond, or another contractor in completion of the work; and the Contractor shall not receive any rental or credit therefor, it being understood that the use of such equipment and materials will ultimately reduce the cost to complete the work and be reflected in the final settlement. 1.020 Termination. This Agreement, with the exception of Section 2.02 may be terminated before the expiration date by any of the following conditions. a. Rifzht of either party to terminate for cause. This Agreement may be terminated by either of the parties hereto for failure by the other party to perform in a timely and proper manner its obligation under this Agreement. A signed written notice is of such termination shall be delivered to the other party by registered or certified • 9 Upon request of and without cost to City of Baytown, 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 City of Baytown's representative prior to any work being performed at the site. ➢ Liability policies must be on occurrence form. ➢ Each insurance policy shall be endorsed to state that coverage shall not be suspended, voided, canceled or reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. The City, its officers, agents and employees are to be added as Additional Insureds to A liability policies. 9 Upon request and without cost to the City, certified copies of all insurance polices and/or certificates of insurance shall be furnished to the City. 9 Upon request of and without cost to City of Baytown, loss runs (claims listing) of any and/or all insurance coverage shall be furnished to City of Baytown's representative. 2.02 • THE CONTRACTOR AGREES TO AND SHALL INDEMNIFY, HOLD HARMLESS, AND DEFEND THE CITY, ITS OFFICERS, AGENTS AND EMPLOYEES (HEREINAFTER COLLECTIVELY REFERRED TO AS THE "CITY "), FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY KIND, INCLUDING, BUT NOT LIMITED TO, 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 PROVIDED BY THE CONTRACTOR PURSUANT TO THIS AGREEMENT, THE CONDUCT OR MANAGEMENT OF THE CONTRACTOR'S BUSINESS OR ACTIVITIES, OR FROM ANY OTHER ACT OR OMISSION BY THE CONTRACTOR, ITS AGENTS, AND EMPLOYEES, WHEN PERFORMING WORK IN ACCORDANCE WITH THIS AGREEMENT, WHERE SUCH INJURIES, DEATH OR DAMAGES ARE CAUSED BY THE JOINT NEGLIGENCE OF THE CITY AND ANY OTHER PERSON OR ENTITY AND /OR BY THE JOINT OR SOLE NEGLIGENCE OF THE CONTRACTOR. 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, ITS OFFICERS, AGENTS AND EMPLOYEES FROM THE CONSEQUENCES OF (I) THE CITY'S OWN NEGLIGENCE, WHERE THAT NEGLIGENCE IS A CONCURRING CAUSE OF THE RESULTING INJURY, DEATH OR DAMAGE AND /OR (II) THE CONTRACTOR'S JOINT AND /OR SOLE NEGLIGENCE. FURTHERMORE, THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL HAVE NO APPLICATION TO THE CITY FOR ANY CLAIM, LOSS, DAMAGE, CAUSE OF ACTION, SUIT AND LIABILITY WHERE THE INJURY, DEATH OR DAMAGE RESULTS FROM THE SOLE NEGLIGENCE OF THE CITY, UNMIXED WITH THE 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, THE CONTRACTOR FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE CITY. The indemnity provided hereinabove shall survive the termination and/or expiration of this Agreement. By this Agreement, the City does not consent to litigation or suit, and the City hereby expressly revokes any consent to litigation that it may have granted by the terms of this Agreement or any other contract or agreement, any charter, or applicable state law. Nothing herein shall be construed so as to limit or waive the City's sovereign immunity.. The Contractor assumes full. responsibility. for its-work performed hereunder and hereby releases, relinquishes and discharges the City, its officers, agents, and employees from all claims, demands,-and: causes of action. of every kind and character, including the cost of defense thereof, for any injury to or death of any person (whether they be either of the parties hereto, their employees, or other third parties) and any loss of or damage to property (whether the property be that of either of the parties hereto, their employees, or other third parties) that is caused by or alleged to be caused by, arising out of, or in connection with the Contractor's work to be performed hereunder. This release shall apply with respect to the Contractor's work regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance. 2.03 Performance and_ Payment_Bonds. The Contractor shall furnish separate performance and payment bonds, each in the sum of one hundred percent (100 %) of the total contract price, in such forms as the City may approve and with sureties as the City may approve, for this purpose, guaranteeing faithful payment to all persons supplying labor and materials or furnishing any equipment in the execution of the Agreement. The cost of such a bond shall be included in the Contractor's proposed price. The performance and ® payment bonds shall remain in effect throughout the term of this Agreement and for a period of one (1) year after the completion of the work and shall be extended for any ® warranty work to cover the warranty period. If at any time during the execution of this Agreement or in the required period thereafter, the bond or bonds become invalid or ineffective for any reason, the Contractor shall promptly supply within ten (10) days such other bond or bonds, which bond or bonds shall assure performance or payment as required. Such replacement bond(s) shall be issued by a surety acceptable to the City. ARTICLE III.. Miscellaneous Provisions 3.01 Force Majeure. Neither the City nor Contractor shall be required to perform any term, condition or covenant of this Agreement while such performance is delayed or interrupted by acts of God, material or labor restrictions by any governmental authority, civil riot, flood, hurricanes or other natural disasters, any other cause not within the control of the City or Contractor that by the exercise of due diligence the City or Contractor is unable wholly or in part, to prevent or overcome and supersedes all prior agreements and understandings between City and Contractor concerning the subject matter of this Agreement. Any such delay in performance shall be excused only for the same amount of time as the occurrence giving rise to the delay shall have lasted or such period of time as is reasonably necessary after such occurrence abates for the effects thereof to have dissipated as determined in the sole discretion of the City. 3.02 Entire Agreement. This Agreement constitutes the entire agreement between the City and Contractor. No agreements, amendments, modifications, implied or otherwise, shall be binding on any of the parties unless set forth in writing and signed by both parties. 3.03 Severability. If one or more of the provisions of this Agreement or the application of any provision to any party or circumstance, is held invalid, unenforceable or illegal in any respect, the remainder of this Agreement and the application of the provision to other parties or circumstances shall remain valid and in full force and effect. 3.04 Notice. Any notice required to be given pursuant to the terms and provisions of this Agreement shall be in writing and shall be mailed by certified or registered mail addressed as set forth below or at such other address as may be specified by written notice: CONTRACTOR Southwest Stainless, L.P., d/b /a/ Hughes Supply, Inc. 7022 Easthaven Houston, TX 77017 FAX: 713 - 378 -0429 CITY City of Baytown Attn: City Manager P.O. Box 424 Baytown, TX 77522 FAX: 281- 420 -6586 3.05 Waiver. The waiver by either party of a breach of any provision of this Agreement shall not constitute a waiver of any subsequent breach of this Agreement. 3.06 No Assi nment. The Contractor shall not assign any interest in this Agreement and shall not transfer any interest in the same without the prior written consent of the City thereto. 3.07 Binding A reg emen_t. The City and Contractor each bind itself and its successors, executors and administrators and assigns of such other parties, in respect to all covenants of this Agreement. Nothing herein shall be construed as creating any personal liability on the part of any officer, board member, commissioner, employee or agent of the City. 3.08 Progress Reports. The Contractor at such times and in such forms as the City may require, shall furnish the City such periodic reports as it may request pertaining to the work or services undertaken pursuant to this Agreement. 3.09 Venue and Choice of Law. This Agreement is performed in Harris County, Texas, and is subject to all applicable Federal and State laws, statutes, codes, and any applicable permits, ordinances, rules, orders and regulations of any local, state or federal government authority having or asserting jurisdiction. 3.10 Autborily. 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 HEREOF, the parties have executed this agreement in duplicate originals at Bayto'%vn, Harris County, Texas. ATTEST: GARY W. SMITH, City Clerk CITY OF BAYTOWN GARY JACKSON, City Manager • APPROVED AS TO FORM: IGNACIO RAMIREZ, SR., City Attorney SOUTHWEST STAINLESS, L.P., D/B /A HUGHES SUPPLY � � � Y�j ►fie. Lc_Di� Printed Name Mer-2 P-10(. 5YS7 -'eM nn�4�C2 Title STATE OF TEXAS § COUNTY OF HARRIS § Odl i Before me, �� the undersigned notary public, on this day personally appeared �a�- rV�a c ,the Zcr�v., NMo� �i�% of Southwest Stainless, L.P., d/b /a Hughes Supply on behalf of such company known to me; proved to me on the oath of ; or _Lz"Proved to me through his/her current —10 as TGy"1'k' .o •`�. {description of identification card or other document issued by the federal government or any state government that contains the photograph and signature of the acknowledging person) (check one) to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he /she executed that instrument for the purposes and consideration therein expressed. 1 0 Given under my hand and seal of office this -dam day of Q 2004. Notary Pub is in and for the State of Texas My commission expires: v � 2-0 zoa ,7 ALPANA V. PATEL �ARI1{ 1C VA T t, 1ElIAb co�etsjf+o� .,tcrt�Et; UPU8T 20, 2007 \U3dc2 \litigation\Karen\Files \Contracts \Water Meter Change -Out & Supply Agreement\SUPPLEMENTAL AGREEMENTAmended.doc • SUPPLEMENTAL AGREEMENT CONCERNING THE WATER METER CHANGE-OUT AND RETROFIT PROGRAM AND NEW METER SUPPLY CONTRACT STATE OF TEXAS § § KNOWN BY THESE PRESENTS: COUNTY OF HARRIS § This Supplemental Agreement concerning the Water Meter Change-out and Retrofit Program and new meter supply contract is made this I day of p cc L% ,2004,by and between the City of Baytown, Texas, acting by and through its City Council of the City of Baytown, Texas hereinafter referred to as the "City," and Southwest Stainless, L.P., d/b/a Hughes Supply, a Delaware corporation authorized to do business in Texas, hereinafter referred to as the"Contractor"; and the Parties do hereby make and enter into the following agreement: I. In General 1.01 Agreement. Both the contract with Pearland and this Supplemental Agreement shall herein be referred to collectively as the "Agreement." Should any term or condition in this document conflict with the contract with Pearland,this document shall control. 1.02 Award of Contract. Upon the execution of this Agreement and prior to performing any work hereunder, the Contractor shall deliver to the City all documents, bonds, and certificates of insurance required in this Agreement. The Contractor shall be prepared to perform the work in the most expedient manner possible due to the commencement of the time for fmal completion,which shall be'acalendar days after the City issues a notice to proceed. The work shall be commenced within ten (10) calendar days of the date specified in the notice to proceed or work order. In the event of any dispute, the records of the City shall be conclusive evidence as to the commencement date. Time is of the essence in this Agreement. 1.03 City's Representative. The project shall be administered by the City's Representative, who shall periodically review and shall inspect the work of the Contractor and inspect the work performed under this Agreement to ensure that said work is performed in accordance with this Agreement. The Contractor shall regard and obey the directions and instructions of City's Representative, provided such directions and instructions are consistent with the obligations of this Agreement. Should the Contractor object to any orders by the City's Representative, the Contractor may within two (2) calendar days from receipt of such order make written appeal to the City Manager for his decision. 1.04 Work. The Contractor shall complete and be responsible for all work as specified, indicated, or described in this Agreement. All work done and all materials furnished shall be in strict conformity with this Agreement. In the event that the Contractor fails to perform the work as required for fmal completion, the Owner may contract with a third party to complete the work and the Contractor shall assume and pay the costs of the performance of the work specified or contemplated by the Agreement. The Contractor shall provide and pay for all materials, supplies, machinery, equipment, tools, superintendents, laborers, insurance, fuel, transportation, and all other facilities and utilities necessary for the execution and completion of the work specified or contemplated in the Agreement. All work shall be done and all materials furnished in strict conformity with the Agreement and recognized industry standards. new and ofgood quality. No 'e utilized shall bety Materials and supplies s q 1.05 Materials. pp refurbished, reconditioned or other previously utilized materials or supplies will be used without the signed authorization of City. 1.06 Progress of Work. The Contractor shall coordinate its activities and work with the City. If requested by the City's Representative, the Contractor shall provide schedules of planned activities, which may be reviewed on a daily basis. The Contractor shall submit, at such time as may reasonably be requested by OWNER, further schedules that shall list the order in which the Contractor proposes to carry on the work with dates at which the Contractor will start the several parts of the work and the estimated dates of completion of the several parts. The Contractor shall attend additional meetings called by the City or the City's Representative upon twenty-four(24)hours' notice unless otherwise agreed by the parties. Throughout the progress of the work, the Contractor shall keep the working area free from debris of all types and remove from premises all rubbish resulting from any work being done by it. At the completion of the work, the Contractor shall leave the premises in a clean and finished condition. Any failure to do so may be remedied by the City or its designee and charged back to and permanently withheld from the Contractor. 1.07 Inspections. The City reserves the right to enter the property by such employee(s) or agent(s) as it may elect for the purpose of inspecting the work or to perform collateral work as the City deems necessary. Additionally, the City shall have the right, at any reasonable time, to observe and test the work. The City's Representative or the City may reject any work found to be defective or not in accordance with the Agreement, regardless of the state of its completion or the time or place of its discovery and regardless of whether the City had previously accepted the work through oversight or otherwise. Neither observations by the City or the City's Representative nor inspections, tests, or approvals made by the City or the City's Representative, or persons authorized under this Agreement to make such inspections, tests, or approvals, shall relieve the Contractor from its obligation to perform the work in accordance with the requirements of the Agreement. 1.08 Work Stoppage. The City or the City's Representative shall have the right to order the work of the Contractor or any subcontractor wholly or partially stopped immediately (i) if in the judgment of the City or the City's Representative, any of the materials furnished or the work being done is not in strict accordance with this Agreement; (ii) until objectionable materials are removed; or(iii)if any portion of the work is being performed so as to create a hazardous condition. Such stoppage or suspension shall neither invalidate any of the Contractor's performance obligations under this Agreement, including time of performance and deadlines therefor, nor will extra charge be allowed the Contractor by reason of such stoppage or suspension. 1.09 Rejected Work. The City or the City's Representative, in its discretion, may reject any and all work that is found to be defective or deemed not in conformity with this Agreement. The City or the City's Representative may reject said work or any portion thereof regardless of the stage of its completion or time or place of discovery of such errors and regardless of whether the City or the City's Representative has previously accepted the work through oversight or otherwise. In the event that any work or any part thereof is rejected by the City or the City's Representative,the Contractor shall, at its sole expense and after receipt of written notice thereof from the City or the City's Representative remove the rejected work or otherwise remedy such work within the time specified in the notice so that it shall be in full compliance with this Agreement If such rejected work is not remedied within the time period established in the notice, the City may have the work removed,replaced or repaired at the Contractor's expense. 1.010 Time. The Contractor agrees that it shall not be entitled to, nor will it request an extension of time for final completion under this Agreement, except if the work has been delayed by changes ordered in the work, or reductions thereto in writing. Within seven (7) calendar days of any act or incident that the Contractor reasonably believes may justify an extension of time for final completion, the Contractor may apply in writing for an extension of such time, submitting therewith all written justification as may be required by the City. Thereafter, the City's Representative, within seven (7) calendar days after receipt of a written request for an extension of time from the Contractor, which is supported by all requested documentation, shall then grant or deny such written request. The Contractor, in undertaking to complete the work within the time herein fixed, has taken into consideration and made allowance for all hindrances and delays incident to such work, whether growing out of delays in securing material or workmen or weather or otherwise. 1.011 Extensions of Time. No charge whatsoever shall be made by the Contractor for hindrances or delays from any cause whatever, except where the work is stopped by order of the City, during the progress of any portion of the work contemplated by the specifications, but the City's Representative may grant an extension of time for the completion of the work,provided the City is satisfied that such delays or hindrances were due to the extraordinary causes or to the acts of omission or commission by the City. It is agreed that the granting of such extensions of time shall in no instance exceed the time actually lost by the Contractor for reason of such causes, provided that the Contractor shall give the City immediate notice in writing of the cause of the detention or delay. 1.012 Independent Contractor. The Contractor as an independent contractor covenants and agrees to supply all materials and equipment and perform services as detailed in the contract with the City of Pearland in accordance with this Supplemental Agreement for the City of Baytown. The Contractor represents that it has or will secure at its own expense, all personnel required in performing the services under this Agreement. Such personnel shall not be employees of or have any contractual relationship with the City. The Contractor shall have ultimate control over the execution of the work under this Agreement. It shall be the responsibility of the Contractor to furnish a completed work product that meets the requirements of the City. The Contractor may contract with subcontractors for portions of the work or services under this Agreement with the prior written approval of the City. 1.013 Communications. The Contractor shall forward all communications, written or oral, to the City through the City's Representative. 1.014 Payment. The Contractor agrees to perform the work for all of the work under this Agreement and the City agrees to pay the Contractor based upon the unit prices enumerated in the Agreement for the actual amount of accepted work done and materials furnished on the project. Reduction in the scope or quantity of work on unit price items shall merely reduce the number of units. The Contractor shall never be entitled to anticipated or lost profits on the deleted or reduced portion of the work. The City's Representative shall review Contractor's applications for payment and supporting data, determine the amount owed to the Contractor and approve the appropriate payment to Contractor in such amounts. The Contractor shall submit applications to the City's Representative for progress payments no more often than once a month, unless otherwise agreed by the City. Whenever the Contractor's application for payment includes payment for work that is determined to be either (1) not in accordance with this Agreement, or (2) defective, the City may, in its sole discretion, withhold progress payments. Progress payments will be made, less the five percent(5%)retainage and additional amounts that may be withheld in accordance with this Agreement. The City may suspend at any time suspend progress payments if, in the sole discretion of the City's Representative, it believes that the Contractor will not complete the work due to actual default or that the Contractor has represented or done some act that indicates that the Contractor will not complete the work in accordance with this Agreement. Each undisputed application for payment is due and payable by the City within thirty days following the date of its receipt by the City or within thirty days of receipt of the invoiced services,whichever is later. After final completion and acceptance of the work, the City shall pay the Contractor the remainder of the price due under this Agreement less any sums withheld under other terms of this Agreement. 1.015 Payments Withheld. The City may, on account of subsequently discovered evidence, withhold payment or nullify the whole or part of any acceptance or certificate to such extent as may be necessary to protect the City from loss on account of(i) defective work or work that is not in strict accordance with the terms of this Agreement, (ii) claims filed or reasonable evidence indicating probable filing of claims, as determined at the sole discretion of the City; (iii) failure of the Contractor to make prompt payments to subcontractors or for material or labor or materialmen; (iv) claims filed or reasonable evidence, as determined at the sole discretion of the City, of damage to another contractor or a third party, including adjacent property owners; (v) reasonable doubt, as determined at the sole discretion of the City, that the work can be completed for the unpaid balance of the contract amount; (vi) charges made for repairs to the Contractor's defective work or repairs made by the City to correct damage to other property; (vii) claims filed or reasonable evidence as determined at the sole discretion of the City indicating unremedied damage to property owned by the City; or (viii) Other amounts authorized under this Agreement. 1.016 Contract Contingency. The terms of this Agreement are contingent upon sufficient appropriations and authorization being made by the City for the performance of this Agreement. If at any time during the period of performance under this Agreement, the City does not make sufficient appropriations and authorizations, this Agreement shall terminate upon written notice being given by the City to the Contractor. The City's decision as to whether sufficient appropriations are available shall be accepted by the Contractor and shall be final. 1.017 Legal Compliance. The Contractor shall secure and pay all permits, fees, licenses, and inspections necessary for the proper execution and completion of the work. Additionally, the Contractor shall have the sole obligation to pay any and all charges and fees and give all notices necessary to and incidental to the lawful prosecution of the work hereunder. The Contractor will not,however, be required to pay for any permit fees for permits to be issued by the City of Baytown, which will be waived in conjunction with this Agreement. The Contractor shall give all notices required by law or that may be otherwise required by the City and comply with all laws, ordinances, regulations, codes, rules and lawful orders of all public authorities bearing on the performance of the work. 1.018 Modification. This Agreement may not be altered, changed or amended except by instrument in writing executed by the parties hereto. 1.019 Abandonment. In case the Contractor should abandon, fail or refuse to resume work within ten (10) days after written notification from the City or the City's Representative or if the Contractor fails to comply with the orders of the City or the City's Representative,when such orders are consistent with the Agreement,then,the sureties on the performance bond shall be notified in writing and directed to complete the work, and a copy of said notice shall be delivered to the Contractor. After receiving said notice of abandonment, the Contractor shall not remove from the work any machinery, equipment, tools,materials, or supplies then on the job,but the same,together with any materials and equipment under contract for the work, may be held for use on the work by the OWNER or the surety on the performance bond, or another contractor in completion of the work; and the Contractor shall not receive any rental or credit therefor, it being understood that the use of such equipment and materials will ultimately reduce the cost to complete the work and be reflected in the final settlement. 1.020 Termination. This Agreement, with the exception of Section 2.02 may be terminated before the expiration date by any of the following conditions. a. Right of either party to terminate for cause. This Agreement may be terminated by either of the parties hereto for failure by the other party to perform in a timely and proper manner its obligation under this Agreement. A signed written notice of such termination shall be delivered to the other party by registered or certified • • • mail and such termination shall take effect twenty days after the notice is deposited in the mail provided that the failure to perform has not been remedied in full prior to the expiration of the twenty-day period. By such termination, either party may nullify obligations already incurred for the performances or failure to perform before the termination date. b. Right of the City to terminate for convenience. This Agreement may also be terminated by the City for reasons other than failure by the Contractor to perform in a timely and proper manner its obligations under this Agreement. A signed, written notice of such termination shall be delivered to Contractor by registered or certified mail and such termination shall take effect not less than seven days following the date that the notice is deposited in the mail or at 5:00 p.m. on the date the notice is received by the Contractor,whichever is sooner. Upon receipt of a notice of termination by the Contractor,the Contractor shall, unless the notice otherwise directs, immediately discontinue all work in connection with this Agreement. Within thirty (30) days after the Contractor submits a statement of the actual work performed and an invoice therefor,the City shall pay the Contractor allowable costs incurred, less previous payments. The City will only be obligated to compensate the Contractor in a just and equitable manner for those services actually performed prior to the effective date of termination. Nothing contained herein shall relieve Contractor of liability to the City for damages sustained by the City by virtue of any negligent act or omission or any breach of the Agreement. 1.021 Warranty. The Contractor shall warrant for a period of one calendar year after acceptance of the Work that all work and materials provided be of good-quality, free from faults and defects, and in conformance with this Agreement. This warranty is in addition to any rights or warranties expressed or implied by law and consumer protection claims arising from misrepresentations by the Contractor. Where more than a one (1) year warranty is specified for individual products,work or materials,the longer warranty shall govern. This warranty shall not constitute the exclusive remedy of the City. If within the warranty period, any of the work is found or determined to be defective or otherwise not in accordance with this Agreement, the Contractor shall correct it promptly. If the Contractor fails to commence making the necessary corrections or adjustments before the time specified in the notice given by the City to the Contractor, the City is hereby authorized to make the corrections or adjustments, or to order the work to be done by a third party. The cost of the work shall be paid by the Contractor. II. Insurance,Indemnity,Bonds 2.01 Insurance. Throughout the term of this Agreement, the Contractor at its own expense shall purchase,maintain and keep in force and effect insurance against claims for injuries to or death of persons or damages to property which may arise out of or result from the Contractor's services, whether such services be by the Contractor, its agents, representatives, volunteers, employees or subcontractors or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable. The Contractor's insurance coverage shall be primary insurance with respect to the City, its officers, agents and employees. Any insurance or self-insurance maintained by the City, its officials, agents and employees shall be considered in excess of the Contractor's insurance and shall not contribute to it. All coverage for subcontractors shall be subject to all of the requirements stated herein. The following insurance shall be required under this Agreement and shall meet or exceed the minimum requirements set forth herein: 1. Commercial General Liability • General Aggregate: $1,000,000 ■ Per Occurrence: $500,000 • Coverage shall be at least as broad as ISO CG 00 01 10 93 • No coverage shall be deleted from standard policy without notification of individual exclusions being attached for review and acceptance. 2. Business Automobile Policy ■ Combined Single Limits: $1,000,000 ■ Coverage for"Any Auto" 3. Workers' Compensation ■ Statutory Limits • Employer's Liability $500,000 ■ Waiver of Subrogation required. Prior to any work being performed on the site,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. The Contractor shall also file with the City valid Certificates of Insurance covering all subcontractors. The following are general requirements applicable to all policies: > AM Best Rating of A;VII or better. > Insurance carriers licensed and admitted to do business in State of Texas will be accepted. > Upon request of and without cost to City of Baytown, 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 City of Baytown's representative prior to any work being performed at the site. > Liability policies must be on occurrence form. > Each insurance policy shall be endorsed to state that coverage shall not be suspended, voided, canceled or reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. > The City, its officers, agents and employees are to be added as Additional Insureds to all liability policies. i cert ified copies of all insurance polices cost to the C > Upon request and withoutCity, p and/or certificates of insurance shall be furnished to the City. > Upon request of and without cost to City of Baytown,loss runs (claims listing) of any and/or all insurance coverage shall be furnished to City of Baytown's representative. 2.02 THE CONTRACTOR AGREES TO AND SHALL INDEMNIFY, HOLD HARMLESS, AND DEFEND THE CITY, ITS OFFICERS, AGENTS AND EMPLOYEES (HEREINAFTER COLLECTIVELY REFERRED TO AS THE "CITY"), FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY KIND, INCLUDING, BUT NOT LIMITED TO, 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. PROVIDED BY THE CONTRACTOR PURSUANT TO THIS AGREEMENT, THE CONDUCT OR MANAGEMENT OF THE CONTRACTOR'S BUSINESS OR ACTIVITIES, OR FROM ANY OTHER ACT OR OMISSION BY THE CONTRACTOR, ITS AGENTS, AND EMPLOYEES, WHEN PERFORMING WORK IN ACCORDANCE WITH THIS AGREEMENT, WHERE SUCH INJURIES, DEATH OR DAMAGES ARE CAUSED BY THE JOINT NEGLIGENCE OF THE CITY AND ANY OTHER PERSON OR ENTITY AND/OR BY THE JOINT OR SOLE NEGLIGENCE OF THE CONTRACTOR. 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, ITS OFFICERS, AGENTS AND • EMPLOYEES FROM THE CONSEQUENCES OF (I) THE CITY'S OWN NEGLIGENCE, WHERE THAT NEGLIGENCE IS A CONCURRING CAUSE OF THE RESULTING INJURY, DEATH OR DAMAGE AND/OR (II) THE CONTRACTOR'S JOINT AND/OR SOLE NEGLIGENCE. FURTHERMORE, THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL HAVE NO APPLICATION TO THE CITY FOR ANY CLAIM, LOSS, DAMAGE, CAUSE OF ACTION, SUIT AND LIABILITY WHERE. THE INJURY, DEATH OR DAMAGE RESULTS FROM THE SOLE NEGLIGENCE OF THE CITY, UNMIXED WITH THE 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, THE CONTRACTOR FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE CITY. The indemnity provided hereinabove shall survive the termination and/or expiration of this Agreement. By this Agreement, the City does not consent to litigation or suit, and the City hereby expressly revokes any consent to litigation that it may have granted by the terms of this Agreement or any other contract or agreement, any charter, or applicable state law. Nothing herein shall be construed so as to limit or waive the City's sovereign immunity.. The.Contractor assumes_full.responsibility-for--its-work performed hereunder and hereby releases, relinquishes and discharges the City, its officers, agents, and employees from all claims, demands, and causes.of action of every kind and character, including the cost of defense thereof, for any injury to or death of any person (whether they be either of the parties hereto, their employees, or other third parties) and any loss of or damage to property (whether the property be that of either of the parties hereto,their employees, or other third parties) that is caused by or alleged to be caused by, arising out of, or in connection with the Contractor's work to be performed hereunder. This release shall apply with respect to the Contractor's work regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance. 2.03 Performance and Payment Bonds. The Contractor shall furnish separate performance and payment bonds, each in the sum of one hundred percent (100%) of the total contract price, in such forms as the City may approve and with sureties as the City may approve, for this purpose, guaranteeing faithful payment to all persons supplying labor and materials or furnishing any equipment in the execution of the Agreement. The cost of such a bond shall be included in the Contractor's proposed price. The performance and payment bonds shall remain in effect throughout the term of this Agreement and for a period of one (1) year after the completion of the work and shall be extended for any warranty work to cover the warranty period. If at any time during the execution of this Agreement or in the required period thereafter, the bond or bonds become invalid or ineffective for any reason,the Contractor shall promptly supply within ten (10) days such other bond or bonds, which bond or bonds shall assure performance or payment as required. Such replacement bond(s) shall be issued by a surety acceptable to the City. ARTICLE III. Miscellaneous Provisions 3.01 Force Majeure. Neither the City nor Contractor shall be required to perform any term, condition or covenant of this Agreement while such performance is delayed or interrupted by acts of God, material or labor restrictions by any governmental authority, civil riot, flood, hurricanes or other natural disasters, any other cause not within the control of the City or Contractor that by the exercise of due diligence the City or Contractor is unable wholly or in part, to prevent or overcome and supersedes all prior agreements and understandings between City and Contractor concerning the subject matter of this Agreement. Any such delay in performance shall be excused only for the same amount of time as the occurrence giving rise to the delay shall have lasted or such period of time as is reasonably necessary after such occurrence abates for the effects thereof to have dissipated as determined in the sole discretion of the City. 3.02 Entire Agreement. This Agreement constitutes the entire agreement between the City and Contractor. No agreements, amendments, modifications, implied or otherwise, shall be binding on any of the parties unless set forth in writing and signed by both parties. 3.03 Severability. If one or more of the provisions of this.Agreement or the application of any provision to any party or circumstance, is held invalid, unenforceable or illegal in any respect, the remainder of this Agreement and the application of the provision to other parties or circumstances shall remain valid and in full force and effect. 3.04 Notice. Any notice required to be given pursuant to the terms and provisions of this Agreement shall be in writing and shall be mailed by certified or registered mail addressed as set forth below or at such other address as may be specified by written notice: CONTRACTOR Southwest Stainless,L.P., d/b/a/Hughes Supply,Inc. 7022 Easthaven Houston, TX 77017 FAX: 713-378-0429 • • • f • CITY City of Baytown Attn: City Manager P.O. Box 424 Baytown,TX 77522 FAX: 281-420-6586 3.05 Waiver. The waiver by either party of a breach of any provision of this Agreement shall not constitute a waiver of any subsequent breach of this Agreement. 3.06 No Assignment. The Contractor shall not assign any interest in this Agreement and shall not transfer any interest in the same without the prior written consent of the City thereto. 3.07 Binding Agreement. The City and Contractor each bind itself and its successors, executors and administrators and assigns of such other parties, in respect to all covenants of this Agreement. Nothing herein shall be construed as creating any personal liability on the part of any officer,board member, commissioner, employee or agent of the City. 3.08 Progress Reports. The Contractor at such times and in such forms as the City may require, shall furnish the City such periodic reports as it may request pertaining to the work or services undertaken pursuant to this Agreement. 3.09 Venue and Choice of Law. This Agreement is performed in Harris County, Texas, and is subject to all applicable Federal and State laws, statutes, codes, and any applicable permits, ordinances, rules, orders and regulations of any local, state or federal government authority having or asserting jurisdiction. 3.10 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 HEREOF, the parties have executed this agreement in duplicate originals at Baytown,Harris County, Texas. CITY OF BAYTOWN GARY JAC ON, City Manager ATTEST: GARY W. SMITH, City Clerk APPROVED AS TO FORM: ACID RAMIREZ, S . City Attorney SOUTHWEST STAINLESS, L.P., DB/A HUGHES SUPPLY Signature Printed Name Mer'2 iOG SgsrfiiS ►t��livflL (t Title STATE OF TEXAS § COUNTY OF HARRIS § ��1 NIP S f Before me, , the undersigned notary public, on this day personally appeared Loves i1V_a.c(gnd , the -it t^^, BioL ck of Southwest Stainless,L.P., d/b/a Hughes Supply on behalf of such company known to me; proved to me on the oath of ; or proved to me through his/her current I e xas `Uo A.10 i ram. {description of identification card or other document issued by the federal government or any state government that contains the photograph and signature of the acknowledging person} (check one) to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he/she executed that instrument for the purposes and consideration therein expressed. Given under my hand and seal of office this --9-"d day of))g.e...e d c4r- ,2004. Notary Pub is in and for the State of Texas My commission expires: -��., , 7 2_641 ALPANA V.PATEL M01A1YM LL'. ITATEOF 1UAS c ij CO.nIItor:ExnRE1: AUGUST 20,2007 \\Bdc2Uitigation\Karen\Files\Contracts\Water Meter Change-Out&Supply Agreement\SUPPLEMENTAL AGREEMENTAmended.doc