Ordinance No. 10,925ORDINANCE NO. 10,925
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, REJECTING THE BIDS FOR THE ANNUAL CLEANUP AND
MOWING CONTRACT OPENED MAY 22, 2008; ACCEPTING THE BID OF
MCLEMORE BUILDING MAINTENANCE, INC., AND THE BID OF
NIEDERHOFER ENTERPRISES, INC., FOR THE CLEANUP AND MOWING
CONTRACT AND AUTHORIZING PAYMENT BY THE CITY OF
BAYTOWN, IN AN AMOUNT NOT TO EXCEED ONE HUNDRED FIFTY
THOUSAND AND NO/100 DOLLARS ($150,000.00); MAKING OTHER
PROVISIONS RELATED THERETO; AND PROVIDING FOR THE
EFFECTIVE DATE THEREOF.
WHEREAS, the City of Baytown advertised for bids for the Annual Cleanup and
Mowing Contract to be received on May 22, 2008; and
WHEREAS, notice to bidders as to the time and place, when and where the bids would
be publicly opened and read aloud was published pursuant to provisions of Texas Local
Government Code Annotated § 252.041; and
WHEREAS, all bids were opened and publicly read at City Hall at 2:00 o'clock a.m.,
Thursday, May 22,2008, as per published notice to bidders; and
WHEREAS, only two bids were received and the responses were unsatisfactory; and
WHEREAS the City of Baytown advertised again for bids for the Annual Cleanup and
Mowing Contract to be received on July 8,2008; and
WHEREAS, for this second request for bids, notice to bidders as to the time and place,
when and where the bids would be publicly opened and read aloud was published pursuant to
provisions of Texas Local Government Code Annotated § 252.041; and
WHEREAS, all bids received in response to this second request for bids were opened and
publicly read at City Hall at 2:00 o'clock p.m., Tuesday, July 8, 2008, as per published notice to
bidders; NOW THEREFORE
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS:
Section 1: That the City Council of the City of Baytown hereby rejects all bids for
the Annual Cleanup and Mowing Contract that were received at 2:00 o'clock a.m., Thursday,
May 22, 2008, as per the published notice to bidders.
Section 2: That the City Council of the City of Baytown hereby accepts the bid of
McLemore Building Maintenance, Inc., and the bid of Niederhofer Enterprises, Inc. for the
Annual Cleanup and Mowing Contract for an amount not to exceed ONE HUNDRED FIFTY
THOUSAND AND NO/100 DOLLARS ($150,000.00) 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
ANeTnO/100 DOLLARS ($25,000.00) or less, subject to the provision that the original contract
price may not be increased by more than twenty-five percent (25%) or decreased by more than
twenty-five percent (25%) without the consent of the contractor to such decrease.
Section 4: This ordinance shall take effect immediately from and after its passage by
the City Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote
City of Baytown this the 24th day of July, 2008.
CitV Council of the
ATTEST:
J
DARNELL, City CIcr
APPROVED AS TO FORM:
STE/HENH. DONCARLOS.Iviayoi
RAMIREZ, SR., (tlfo Attorney
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ANNUAL CLEAN-UP AND MOWING CONTRACT
CONTRACT NO. 038-08
STATE OF TEXAS §
§
COUNTY OF HARRIS §
THIS AGREEMENT r Annual Clean-U and Mowing Contract (the "Contract") made and entered
into at Baytown, Texas, this /j/ /
day of l , 2008, by and between the CITY OF
BAYTOWN, TEXAS, a home-rule municipality ocatA in Harris and Chambers Counties, Texas,hereinafter
called the "City",and NIEDERHOFER ENTERPRISES, INC.,hereinafter called the "Contractor";
WITNESSETH:
WHEREAS, the City desires to have clean-up and mowing services provided for designated lots and
tracts in the City; and
WHEREAS, the City desires such services be safe, economical, and effective and result in a
coordinated and responsive maintenance program; and
WHEREAS, the Contractor desires to provide such services in accordance with the terms of the
Contractor's bid,the bid documents and this Contract; and
In consideration of the mutual covenants and agreements herein recited, by each to be performed, it is
hereby agreed by and between the parties hereto as follows:
1.0 DEFINITIONS
The following words shall, unless the context otherwise requires, have the meanings ascribed to
them below:
Acreage shall mean and refer to a parcel of land of'A acre or more on which virtually no structure is
situated,as determined by the Director.
City Manager shall mean the City Manager of the City of Baytown or his designated representative.
Clean-Up Services shall mean all Cleaning Activities and/or Clearing Activities.
Cleaning Activities shall include, but not be limited to,the removal of litter, rubbish,junk, tires (3 or
more), scrap metal, debris, building/remodeling materials, discarded appliances, items and materials, as well
as all items and materials identified by the Director as illegally dumped materials.
Clearing Activities shall include, but not be limited to, bush trimming, tree trimming, weed eating,
brush clearing, removal of dead trees and tree limbs larger than 3" in diameter, and other similar activities.
Clean-up Work Order shall mean a Work Order issued by the Director requesting the Contractor to
perform Clean-Up Services on an assigned Property. Clean-Up Work Orders do not include mowing; if
mowing services are required a separate Mowing Work Order will be issued.
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Director shall mean the Director of Health or his duly authorized representative, who shall monitor
the Contractor's progress within the maintenance project areas to which he/she is assigned.
Edging shall refer to the vertical removal of grass, weeds, and foreign growth that encroaches over
or onto sidewalks (both sides), curbs, streets, driveways, slabs, pavements, and steps with a string line
trimmer or metal blade.
Foreign growth shall include all weeds,thickets and noxious plants.
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 Director.
Invoke Date shall mean the date that the Contractor is required to complete the services requested in
the Work Order and to submit billing/invoice for said Work Order. Such date shall be no more than seven
(7) calendar days after the Pick-Up Date.
Issuance Date shall mean the date a Work Order has been prepared, dated, and Contractor is called.
Work order will be put in Contractor's pick-up box in the Health Department Office on the issuance date. Such
date shall be listed on the Work Order.
Litter and Miscellaneous Debris shall mean (a) any light trash, garbage, miscellaneous. debris, and
tires (less than three); (b) small fragments, remains, ruins, rubble or loose materials of any nature which are
not intended to be present as part of the landscape and may distract from the appearance of the Property; and
(c) tree limbs 3" or smaller in diameter. Such term shall include, but not be limited to, paper, cans, bottles,
broken glass,masonry rubble, and dead animals.
Lot with No Structure shall mean and refer to a parcel of land of less than '/2 acre on which virtually
no structure or slab is situated, as determined by the Director.
Lot with Structure shall mean and refer to a parcel of land of less than Y2 acre on which a structure
or slab is situated.
Mowing Services shall refer to all mowing, edging, and trimming activities.
Mowing Work Order shall refer to a Work Order issued by the Director requesting Contractor
mowing services to be performed on an assigned Property. Mowing Work Orders do not include clean-ups;
if clean-up services are required a separate Clean-Up Work Order will be issued.
Pick-Up Date shall mean (i) the date that the Contractor picks up a Work Order issued by the
Director from the Health Department Office or three (3) business days after the Issuance Date, whichever
occurs first, or(ii)the date as specified in Section 2.14.2, if applicable.
Property means the properties, whether singular or plural, to be identified by the Director as
requiring Contractor's services in accordance with this Contract.
Scalping shall refer to any action, which results in the mowing of any turf area below two (2")
inches in height down to and including the soil.
Sucker growth shall mean the incidental vegetative growth arising from the base and lower trunk
areas, which are not essential to the overall well being of the plant.
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Trimming shall refer to the cutting or removal (most likely with a weed eater) of all high grass,
weeds, and foreign growth found adjacent to or under structures, trees, poles, culverts, tables, signs, and
fences, as well as those found growing out of expansion joints and/or cracks in curbs, sidewalks (both
sides), driveways,parking lots and any other foundational surfaces on the Property.
Work order shall refer to both Mowing Work Orders and Clean-Up Work Orders.
2.0 CONTRACTOR'S RESPONSIBILITIES
2.1 Scope: The Contractor shall furnish all the material, labor and equipment to perform all Work
Orders in a timely and worker like manner as required herein. Furthermore,the Contractor shall
cleanup adjacent roads and properties to prevent blocking drainage ways and the littering of
adjacent properties with cuttings after performing the Work Order on each Property.
2.2 Work Orders: The Contractor shall perform only those services which are specified in the Work
Order issued by the Director. All Work Orders shall require Contractor to pick-up and
remove litter and miscellaneous debris from the assigned Property and shall require the
sweeping of hard surface areas such as sidewalks and driveways. Each Work Order shall
specify in writing and provide photographic documentation to describe services required.
There are no set days or times when Work Orders are issued. The issuance of Work Orders is
dictated on a case by case basis with some days producing larger numbers of Work Orders and
other days resulting in none. During the height of the mowing seasons there are times when ten
(10) to twenty (20) Work Orders a day might be issued. The Contractor shall pick-up Work
Orders from the Health Department Office, located at 220 W. Defee Street,at least twice a week
on or before the Pick-Up-Date.
2.3 Equipment: The Contractor shall have clean-up and mowing equipment necessary to perform
and complete all aspects of the services described herein. The Contractor shall have sufficient
clean-up and mowing equipment and workforce to complete Work Orders in a timely manner.
All tractors shall also be equipped with the appropriate mowing attachments (rotary cutting
mowers). The mowing equipment shall be equipped with sharp blades so as not to tear but
cleanly cut the blades of grass. All clean-up and mowing equipment shall be in good repair
and qualified operators shall be responsible for the care and handling of the equipment to carry
out the requirements of this Contract. Additionally, the Contractor shall have hand mowers,
weed eaters, and other related clean-up and mowing equipment available to complete the Work
Orders assigned. The City reserves the right to prohibit the Contractor from working with a
piece of equipment the Director deems to be a danger to the Contractor or the general public.
The Contractor warrants that all equipment used in satisfying the Contractor's obligations
under this Contract are sufficient for the services required herein. Additionally, the
Contractor shall maintain or have immediate access to adequate backup clean-up and
mowing 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 Director, shall be deemed a breach of this Contract.
2.4 Litter Removal: The Contractor shall pick-up and remove all litter and miscellaneous debris
throughout the Property prior to mowing or performing any assigned Work Order. The
Contractor shall remove all litter from the gutters, sidewalks, and rights-of-way and place the
same in plastic trash bags. Removal and disposal of litter and debris shall be the sole
responsibility of the Contractor, and the Contractor agrees that he shall be responsible for all
landfill fees, if any, associated with the disposal of the litter and debris. Any litter, cut or
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broken, during maintenance operations, shall be completely removed from the Property
immediately and prior to proceeding with any additional Work Order assigned.
2.5 Clean-ups: The nature, extent, and type of clean-up required on an assigned Property will be
provided in the clean-up work order and vary from property to property. CONTRACTOR
SHALL UTILIZE A MINIMUM TWO (2) PERSON CREW FOR EACH CLEAN-UP
WORK ORDER Clean-up services include cleaning and/or clearing activities. Cleaning
activities shall include, but not be limited to, the removal of rubbish,junk, tires (3 or more),
scrap metal, debris, building/remodeling materials, discarded appliances, etc.; as well as all
items and materials identified by the Director as illegally dumped materials. Clearing
activities shall include, but not be limited to, bush trimming, tree trimming, weed eating,
brush clearing, removal of dead trees and tree limbs larger than 3" in diameter, etc. All
clean-up services shall require the Contractor to pick-up and remove all litter and
miscellaneous debris from the assigned Property prior to exiting Property to start another
Work Order. Upon completion, the assigned Property shall be free of litter, tire tracks, or
ruts from the clean-up equipment. All loose debris that falls or is thrown by equipment or
personnel upon the pavement streets, sidewalks, driveways, or adjacent properties through
the actions of the Contractor or his work crew shall be removed from the area. Special care
should be given to all items removed from the assigned Property so as not to remove items or
materials not authorized by the clean-up work order. Contractor should resolve all
uncertainties of questionable items and materials with Director prior to removal of said items
or materials.
2.6 Mowing: All Mowing Work Orders shall require the Contractor to provide the services of
mowing, edging, and trimming on the assigned Property; as well as picking up and removing
all litter and miscellaneous debris from the Property prior to mowing. The grass shall be
maintained/mowed to an approximate height of three (3") inches maximum. 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 a Work Order 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 assigned Property.
2.7 Trimming: All assigned Properties requiring mowing services shall be trimmed of all
high grass, weeds, and foreign growth found adjacent to or under structures, trees, poles,
culverts,tables, signs, fences, etc.; in addition to those found growing out of expansion joints
and/or cracks in curbs, sidewalks (both sides), driveways, parking lots, and other
foundational surfaces on the Property.. Special care shall be given to trimming around small
trees so as not to inflict damage to the bark of the trees. NO HERBICIDES SHALL BE
USED WITHOUT THE PRIOR EXPRESS WRITTEN APPROVAL OF THE
DIRECTOR.
2.8 Edging: Edging is required to be performed on all assigned Properties requiring mowing
services. Edges shall be vertical, minimum depth of one inch (1") and minimum width of
one-fourth inch (1/4") where they exist. Edging may be accomplished with a string line
trimmer or metal blade. All materials dislodged by edging must be picked up and removed
from the Property.
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2.9 Incapacitated Mowers: The Contractor shall have access to a dozer or winch truck to free
mowers that have become incapacitated. The City of Baytown is not responsible for freeing
incapacitated mowers.
2.10 Personnel: The Contractor shall provide supervision of all work crews at all times while
performing Work Orders under this Contract. Personal supervision is not required provided
that equipment or other means are provided that enable the work crew to communicate with
the Contractor at all times. Each work crew shall have a designated person on the assigned
Property who has the authority to respond to inquiries about work details or priorities. Such
designated person shall have the authority to receive instructions from the Director as well as
to bind the Contractor. Such person will be the main contact person for contact during the term
of this Contract.
2.11 Survey/Job Assessment: The Contractor shall be prepared to perform contractual services upon
receiving notification in writing through the issuance of a Work Order on an assigned Property
by the Director. The Contractor shall be responsible for identifying and performing the services
requested in the work order on the correct Property.
2.12 Records Keeping: The Contractor shall keep records of all Work performed. Such records shall
include a breakdown of all equipment used, hours worked, dumping fees, mileage and other
related records required or requested by the Director. 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 Contract 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 Contract.
2.13 Photographic Documentation: Contractor shall be required to provide photographic
documentation of services rendered. A minimum of two (2) pictures shall be attached to each
work order submitted for payment, documenting the condition of the assigned Property
immediately prior to and immediately after completion of the work order. Some work orders
may require additional pictures to fully document services rendered. Photographic
documentation may be provided by 35mm film prints (3x5 or 4x6), Polaroid-type instant
pictures, or printed digital images (preferred). Pictures shall provide the name of the
company, time taken, and date taken on each picture or on each page submitted (preferred).
Contractor shall be responsible for all costs associated with the taking and printing of pictures.
Photographic documentation shall be attached to the work order and shall be turned in to the
Health Department after completion of work order to confirm inspection and payment for
services rendered. Before and after photographs must coincide with the same direction,
distance, and angle taken as the work order original photograph taken and all photos must be
from the same prospective and must clearly reflect the property location and finished product.
Each photograph must clearly identify the location and withstand any dispute as to whether the
property was cleaned up and mowed"before and after"as described in the work order.
2.14 Completion Time:
2.14.1 Contractor shall have the responsibility to pick-up Work Orders within three (3)
business days of being issued when called. Services requested must be completed within
ten (10) working days. Billing/invoice shall be submitted seven (7) working days after
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completion date or work order; provided however, that reasonable extensions may be
granted at the sole discretion of the Director for delays caused by inclement weather.
2.14.2 Notwithstanding anything to the contrary in Section 2.15.1, if the Director verbally
notifies the Contractor that Work Orders are available in the Health Department Office,
the Contractor shall have the responsibility to pick up such Work Orders and the time
period during which the Work Orders are required to be performed shall commence.
Contractor shall have ten(10) working days to complete work order from initial date of
call..
2.15 Inspection: All work performed must be satisfactory to the City of Baytown and comply with
all requirements of the ordinance of the City, including, but not limited to, Chapter 42 "Health
and Sanitation,"Article II "Public Health Hazards." The Director shall have the right to inspect
any or all of the 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 Orders or conditions, safety, damages, or operational interests.
2.16 Availability: Due to the need of the City of Baytown to be in contact with the Contractor on
a daily basis, the Contractor shall be available between the hours of 8:00 a.m. to 5:00 p.m.,
weekdays.
2.17 Damages: Any damages to property that are the fault of the Contractor, such as rutting
property and/or fence damage, shall be the responsibility of the Contractor to make whole
again by the Contractor at Contractor's expense.
3.0 COMPENSATION
3.1 Invoice for Mowing Work Orders: An invoice for a Mowing Work Order performed and
completed shall be submitted to the City as specified herein,along with the required photographic
documentation,on or before the Invoice Date.
The Contractor shall be paid a maximum of$100.00 for each lot with no structure (less than '/2
acre mowed); and the Contractor shall be paid a maximum of$100.00 for each lot with structure
(less than %2 acre mowed); and the Contractor shall be paid a maximum of$100.00 per each acre
for acreage(1/2 acre or more mowed)and invoiced in half-acre increments after the first acre.
The determination of whether a Property constitutes less than V2 acre or more,and with or without
a structure, shall be made by the Director, whose determination is final and binding on the
Contractor. The rate paid for Mowing Services, as specified herein, shall include all pick-up,
removal, disposal, landfill, labor, materials, equipment usage, and travel costs and fees, if any,
required to complete the Work Order. All wages, taxes, workers' compensation of all of the
Contractor's employees and all other expenses incurred in performing mowing services under this
Contract are to be paid by the Contractor.
3.2 Invoice for Clean-Up Work Orders: An invoice for a Clean-Up Work Order performed and
completed shall be submitted to the City as specified herein, along with the required
photographic documentation, on or by the Invoice Date. The Contractor shall be paid a
maximum of $100.00 per hour for each hour of work provided.
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ALL CLEAN-UP WORK ORDERS ARE LIMITED TO A TWO (2) HOUR MAXIMUM
UNLESS PRE-AUTHORIZED IN WRITING BY THE DIRECTOR WITH A MAXIMUM
NUMBER OF WORK HOURS ESTABLISHED BY AGREEMENT WITH THE
CONTRACTOR
ALL WORK HOURS AFTER THE TWO(2)HOUR MAXIMUM SHALL BE INVOICED
IN HALF-HOUR INCREMENTS, UP TO THE MAXIMUM NUMBER OF WORK
HOURS PRE-AUTHORIZED,NOT TO EXCEED THE ACTUAL NUMBER OF HOURS
WORKED.
For billing purposes,the hourly rate begins at the time Contractor's work crew starts work on the
assigned Property, continues as long as Contractor's work crew actually performs required work
on the assigned Property, and ends when Contractor's work crew completes work on assigned
Property. The rate paid for clean-up services, as specified herein, shall include all pick-up,
removal, disposal, landfill, labor, materials, equipment usage, and travel costs and fees, if any,
required to complete the work order.
The Contractor may receive additional compensation for utilization of special and/or unusual
equipment, disposal fees, and/or man-hours to meet the Director's requirements requested in a
Clean-Up Work Order; provided, however, (a)the Director in his sole discretion, determines that
said Work Order requirement qualifies for additional compensation; (b) the additional
compensation is approved in writing by Director prior to commencement of services on the
assigned Property; (c) said special and/or unusual services are necessary to complete Director's
requirements in the Clean-Up Work Order; and (d) the additional compensation does not exceed
Contractor's actual cost. Such additional compensation shall be determined by mutual agreement
of the Director and the Contractor.
In addition, every hour more than two (2) hours maximum as described above will be
charged at $50.00 per hour as agreed upon by the Director. Contractor shall contact
Director if any questions regarding the work order. Contractor shall call Director if time
involved is insufficient, or unforeseen additional work causes time allotted to not be
sufficient.
In addition, disposal costs for cleanup will be reimbursed as agreed upon by the Director.
Contractor will be reimbursed for initial disposal costs with receipt verification of actual
cost. Any further disposal costs incurred by Contractor must be approved in advance by
Director. ALL DISPOSAL RATES REOUIRE RECEIPT VERIFICATION TO BE
ELIGIBLE FOR REIMBURSEMENT. Communication is key to the operation of disposal
reimbursement by Contractor.
3.3 Payment: Any payment required herein to be made by the City shall be paid within thirty (30)
days after receipt of an invoice or thirty (30) days after receipt of the services, whichever is
later. All invoices must specifically indicate the properties for which the City is being charged,
the Work Order number, the type of work performed, pictures documenting work performed,
and details and documentation of any pre-authorized additional compensation requests.
4.0 INDEPENDENT CONTRACTOR
It is expressly agreed and understood by both parties hereto that the Contractor is an independent
contractor in its relationship to the City of Baytown. Nothing herein contained at any time or in any
manner shall be construed to effect an agreement of partnership or joint venture or render any party
hereto the employer or master of the other party and/or its employees,agents,or representatives.
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5.0 INSURANCE REQUIREMENTS: CONTRACTOR SHALL INCLUDE CERTIFICATE OF
INSURANCE PRIOR TO AWARD OF BID. CONTRACTOR OR CONTRACTOR'S
INSURANCE AGENT SHALL INCLUDE BID NUMBER AND DESCRIPTION OF BID ON
THE CERTIFICATE OF INSURANCE. THE COMPANIES AFFORDING COVERAGE OF
THE CERTIFICATE OF INSURANCE SHALL BE LICENSED WITH THE STATE BOARD OF
INSURANCE TO DO BUSINESS IN THE STATE OF TEXAS.
Contractor shall procure and maintain at its sole cost and expense for the duration of the Agreement,
insurance against claims for injures to person or damages to property which may arise from or in
connection with the performance of the Work hereunder by Contractor, its agents, representatives,
volunteers, employees or subconsultants.
a. Contractor's insurance coverage shall be primary insurance with respect to the City, its
officials, employees and agents. Any insurance or self-insurance maintained by the City, its
officials, employees or agents shall be considered in excess of Contractor's insurance and shall
not contribute to it. Further, Contractor shall include all subconsultants, agents and assigns as
additional insureds under its policy or shall furnish separate certificates and endorsements for
each such person or entity. All coverages for subcontractors, subconsultants and assigns shall
be subject to all of the requirements stated herein.
The following is a list of standard insurance policies along with their respective minimum
coverage amounts required in this Agreement:
1. Commercial General Liability
• General Aggregate: $1,000,000
• Products&Completed Operations Aggregate: $1,000,000
• Personal&Advertising Injury: $1,000,000
• Per Occurrence: $500,000
• Fire Damage: $50,000
• 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: $500,000
• Coverage for"Any Auto"
3. Errors and Omissions, if applicable
• Limit: $500,000 for this project.
• For all architects, engineers, and/or design companies
• Claims-made form is acceptable
4. Workers' Compensation
• Statutory Limits
• Employer's Liability: $500,000
• Waiver of Subrogation required.
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b. The following shall be applicable to all policies of insurance required herein.
1. Insurance carrier must have an A.M. Best Rating of B+:VIII or better.
2. Only insurance carriers licensed and admitted to do business in the State of Texas will be
accepted.
3. Liability policies must be on occurrence form. Errors and Omissions can be on claims-
made form, if applicable.
4. 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.
5. The City, its officers, agents and employees are to be added as Additional Insureds to all
liability policies, with the exception of the Errors and Omissions Policy required herein.
6. 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.
7. Upon request and without cost to the City, loss runs (claims listing) of any and/or all
insurance coverages shall be furnished to the City.
8. All insurance required herein shall be secured and maintained in a company or companies
satisfactory to the City, and shall be carried in the name of Contractor. Contractor shall
provide copies of insurance certificates required hereunder to the City on or before the
effective date of this Agreement.
Please include on Certificate of Insurance under Description of Operations exact verbiage as
follows:
Certificate Holder, its officers, agents & employees are included as Additional Insured
(except as respects all coverage afforded by the Workers Compensation Policy) and Waiver
of Subrogation is in favor of Certificate Holder as written contract and as their interests may
appear.
INDEMNITY AGREEMENT:
The Contractor hereby 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, demands, 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, for loss of use or revenue, or for damage to any property
arising out of or in connection with the actual or alleged malfunction, design or
workmanship in the manufacture of equipment, the fulfillment of contract, or the
breach of any express or implied warranties under this contract. Such indemnity
shall apply where the claims, losses, damages, causes of action, suits or liability
arise in part from (i) the joint negligence of the City and the Contractor, and/or
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their respective officers, agents and/or employees or (ii) the sole negligence of the
Contractor, its officers, agents and employees. It is the expressed intention of the
parties hereto, both Contractor and the City, that the indemnity provided for in
this paragraph is indemnity by Contractor to indemnify and protect the City
from the consequence of (i) the City's own negligence where that negligence is a
concurring cause with that of the Contractor of the injury, death or damage
and/or (ii) the Contractor's own negligence where that negligence is the sole
cause of the injury, death, or damage. Furthermore, the indemnity provided for
in this paragraph shall have no application to any claim, loss, damage, cause of
action, suit and liability where in 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 any action or proceeding is brought against the City by reason of any of
the above, the Contractor agrees and covenants to defend the action or
proceeding by counsel acceptable to the City. The indemnity provided for herein
shall survive the termination or expiration of this agreement. (revised 4-29-08)
8.0 ENTIRE AGREEMENT
This Contract 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 Contract 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 expressly 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 Contract, 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.
9.0 TERM
This is an annual contract for the period of one (1)year, from AUGUST 1,2008, through JULY 31,
2009. This contract may be renewed under the same terms and conditions for successive one-year
periods, upon the agreement of both parties. Each such renewal must be evidenced in writing and
approved by the appropriate authorities of each party. The first year prices shall be fixed, and each
renewal thereafter, prices may be adjusted to reflect the Consumer Price Index (Urban) sixty-four(64)
days prior to the effective date of the renewed contract. The Consumer Price Index for all Urban
Areas (CPIU) is an economic indicator most widely used to measure inflation for prices of goods
and services purchased for consumption by urban households. The CPIU is the percentage of
change from the current month to the same month 12 months previously.
Additionally, the Contractor 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 Contractor 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 Contractor for such goods and/or services. The City of Baytown may terminate
extension at any time for any reason without prior notice.
to
10. NOTICES
All notices required to be given hereunder shall be given in writing by telecopy, 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.
7502 E. Wallisville Road
Baytown, Texas 77521
Attn: Ron Niederhofer/Carolian Moore
Tel: 281-421-4577
Fax: 281-421-1279
Caro.moore@verizon.net
CITY
City of Baytown
Attn: City Manager
P.O. Box 424
Baytown, TX 77522
11. 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.
12. 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.
13. 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.
14. VENUE
This Contract 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.
15. NO RIGHT TO ARBITRATION
Notwithstanding anything to the contrary contained in this Contract, the City and the Contractor
hereby agree that no claim or dispute between the City and the Contractor arising out of or relating
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to this Contract 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, the
Contractor consents to be joined in the arbitration proceeding if the Contractor's presence is required
or requested by the City of complete relief to be recorded in the arbitration proceeding.
16. SEVERABILITY
All parties agree that should any provision of this Contract be determined to be invalid or
unenforceable, such determination shall not affect any other term of this Contract, which shall
continue in full force and effect.
17. AUTHORITY
The officers executing this Contract on behalf of the parties hereby confirm that such officers have
full authority to execute this Contract and to bind the party he/she represents.
IN WITNESS WHEREOF, the parties hereto have executed this Contract in multiple copies, each of
which shall be deemed to be 'ginal but all of which shall constitute but one and the same
Contract on the.3 day of , 2008, the date of execution by the City
Manager of the City of Baytown.
CITY OF BA WN
BY
GARRISON C. B ACK, City Manager
ATTEST:
S AY
DARNS , City Clerk
H
APPRO D AS TO FORM:
ACIO RAMIREZ, SR., Attorney
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CONTRACTOR
NIEDERHOFER ENTERPRISES,INC.
BY C_ -..„.�.. % l}-0_- e3
(signature)
e4'i OO d,y M 0 vk e
(printed name)
si 0 -e ✓7
(title)
STATE OF TEXAS §
§
COUNTY OF HARRIS §
Before me,e14\;,,\ f,may) , the undersigned notary public, on this daay�p�errsonally appeared
e �i '(Y\DD In a_ , in his/her capacity as � �.s c . :
of \:4A - mS .- CC__I—*..0 r+Q O., •¢5 , on behalf of such company, known to me; proved to me
through his/her current driver's license {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 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 \ ay of uA,L.., 2008.
No Public in and for the State of Texas
st.':, CYNTHIA LYNN WARREN My commission e pires: �e � a�\
Ff 1p y
'*:(1,� Notary Public,State of Texas
, l,, My Commission Expires
4��w,;;,`,.`.��r October 30,2011
S1h/legalcontract038-08c1eanup&mowing
7-11-08
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