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R-13-09-12-H9 - 9/12/2013RESOLUTION NO. R -13-09-12-H9 WHEREAS, the City of Round Rock has duly advertised for bids to purchase right-of-way mowing services on certain highway rights-of-way within or adjacent to the corporate boundaries of the City, and associated goods and services; and WHEREAS, Red & White Greenery, Inc. has submitted the lowest responsible bid; and WHEREAS, the City Council wishes to accept the bid of Red & White Greenery, Inc., Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, That the Mayor is hereby authorized and directed to execute on behalf of the City an Agreement for Purchase of Right -Of -Way Mowing Services With Red & White Greenery, Inc., a copy of said Agreement being attached hereto as Exhibit "A" and incorporated herein. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended. RESOLVED this 12th day of September, 2013. ALAN MCGRAW, Mayor City of Round Rock, Texas ATTEST: SARA L. WHITE, City Clerk 0112.1304; 00281717 1 EXHIBIT „A„ CITY OF ROUND ROCK AGREEMENT FOR PURCHASE OF RIGHT-OF-WAY MOWING SERVICES WITH RED & WHITE GREENERY, INC. THE STATE OF TEXAS CITY OF ROUND ROCK COUNTY OF WILLIAMSON COUNTY OF TRAVIS KNOW ALL BY THESE PRESENTS: THIS AGREEMENT is for right-of-way mowing services on certain highway rights-of- way within or adjacent to the corporate boundaries of the City of Round Rock (referred to herein as the "Agreement"), and is made and entered into on this the day of the month of , 2013, by and between the CITY OF ROUND ROCK, a Texas home - rule municipality, whose offices are located at 221 East Main Street, Round Rock, Texas 78664- 5299 (referred to herein as the "City"), and RED & WHITE GREENERY, INC., a Texas corporation whose offices are located at 5324 Highway 29 East, Georgetown, Texas 78626 (referred to herein as the "Services Provider"). RECITALS: WHEREAS, City desires to purchase right-of-way mowing services on certain highway rights-of-way within or adjacent to the corporate boundaries of the City, and associated goods and services, and City desires to purchase same from Services Provider; and WHEREAS, City has issued its "Invitation for Bid" for the provision of said goods, and City has selected the bid submitted by Services Provider; and WHEREAS, the parties desire to enter into this Agreement to set forth in writing their respective rights, duties, and obligations; NOW, THEREFORE, WITNESSETH: That for and in consideration of the mutual promises contained herein and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, it is mutually agreed between the parties as follows: 1.01 DEFINITIONS A. Agreement means the binding legal contract between City and Services Provider whereby City is obligated to buy specified services and Services Provider is obligated to sell same. The Agreement includes the following: (a) City's Invitation for Bid designated Solicitation Number 13-046, Specification Number 12-988-36 ("IFB"); (b) Services Provider's Response to IFB; (c) contract award; and (d) any exhibits, addenda, and/or amendments thereto. 00276524.doc/jmr Any inconsistencies or conflicts in the contract documents shall be resolved by giving preference in the following order: (1) This Agreement; (2) Services Provider's Response to IFB; (3) City's Invitation for Bids, exhibits, and attachments. B. City means the City of Round Rock, Williamson and Travis Counties, Texas. C. Effective Date means the date upon which the binding signatures of both parties to this Agreement are affixed. D. Force Majeure means acts of God, strikes, lockouts, or other industrial disturbances, acts of the public enemy, orders of any kind from the government of the United States or the State of Texas or any civil or military authority, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes, storms, floods, restraint of the government and the people, civil disturbances, explosions, or other causes not reasonably within the control of the party claiming such inability. E. Goods and services mean the specified services, supplies, materials, commodities, or equipment. 2.01 EFFECTIVE DATE, TERM, ALLOWABLE RENEWALS, PRICES FIRM A. This Agreement shall be effective on the date this Agreement has been signed by each party hereto, and shall remain in full force and effect unless and until it expires by operation of the term indicated herein, or is terminated or extended as provided herein. B. The term of this Agreement shall be for thirty-six (36). months from the effective date hereof. After that term, this Agreement may be renewed for two (2) successive twelve- month periods, under the same terms and conditions, only upon the express written agreement of both parties, and only provided that the Services Provider has performed each and every contractual obligation specified in this Agreement. C. Prices shall be firm for the duration of this Agreement and for any renewal periods. No separate line item charges shall be permitted for invoicing purposes, including but not limited to equipment rental, demurrage, costs associated with obtaining permits, or any other extraneous charges. City may permit "unit price" adjustments upwards only in accordance with Part 1, Item 10 of City's Invitation for Bid included as a part of Exhibit "A," attached hereto and incorporated herein by reference for all purposes. Any price increase shall be requested by Services Provider in writing and accompanied by the appropriate documentation to justify the 2 requested increase. Services Provider may offer price decreases at any time and in excess of any allowable percentage changes. D. City reserves the right to review the relationship at any time, and may elect to terminate this Agreement with or without cause or may elect to continue. 3.01 CONTRACT DOCUMENTS AND EXHIBITS City selected Services Provider to supply the services as outlined in the IFB; and Response to IFB submitted by Services Provider, all as specified in Exhibit "A." The intent of these documents is to formulate an Agreement listing the responsibilities of both parties as outlined in the IFB and as offered by Services Provider in its Response to the IFB. The services which are the subject matter of this Agreement are described in Exhibit "A" and, together with this Agreement, comprise the total Agreement and they are fully a part of this Agreement as if repeated herein in full. 4.01 ITEMS AWARDED; AND SCOPE OF WORK Items Awarded. Only if, as, and when needed by City, right-of-way mowing services are awarded to Services provider in accordance with the bid item shown on Exhibit "A," as follows: 219 Acres, as described in Exhibit "A" $65.00 per acre Scope of Work: For purposes of this Agreement, City has issued documents delineating the required services (specifically IFB 13-046 and Specification No. 12-988-36 dated April 2013). Services Provider has issued its response agreeing to provide all such required services in all specified particulars. All such referenced documents are included in Exhibit "A" attached hereto and made a part hereof for all purposes. When taken together with the appended exhibits, this Agreement shall evidence the entire understanding and agreement between the parties and shall supersede any prior proposals, correspondence or discussions. Services Provider shall satisfactorily provide all services described under the attached exhibits within the contract term specified in Section 2.01. Services Provider's undertakings shall be limited to performing services. for City and/or advising City concerning those matters on which Services Provider has been specifically engaged. Services Provider shall perform its services in accordance with this Agreement, in accordance with the appended exhibits, in accordance with due care, and in accordance with prevailing industry standards for comparable services. 5.01 COSTS Only if, as, and when needed by City, the bid costs listed on Exhibit "A," which are specifically relevant to the referenced bid items, shall be the basis of any charges collected by Services Provider. 3 6.01 INVOICES All invoices shall include, at a minimum, the following information: A. Name and address of Services Provider; B. Purchase Order Number; C. Description and quantity of items received or services provided; and D. Delivery or performance dates. 7.01 INTERLOCAL COOPERATIVE CONTRACTING / PURCHASING Authority for local governments to contract with one another to perform certain governmental functions and services, including but not limited to purchasing functions, is granted under Government Code, Title 7, Chapter 791, Interlocal Cooperation Contracts, Subchapter B and Subchapter C, and Local Government Code, Title 8, Chapter 271, Subchapter F, Section 27L101 and Section 271.102. Other governmental entities within the State of Texas may be extended the opportunity to purchase off of the City's bid, with the consent and agreement of the successful vendor(s) and the City. Such agreement shall be conclusively inferred for the vendor from lack of exception to this clause in the vendor's response. However, all parties hereby expressly agree that the City is not an agent of, partner to, or representative of those outside agencies or entities and that the City is not obligated or liable for any action or debts that may arise out of such independently -negotiated "piggyback" procurements. 8.01 NON -APPROPRIATION AND FISCAL FUNDING This Agreement is a commitment of City's current revenues only. It is understood and agreed that City shall have the right to terminate this Agreement at the end of any City fiscal year if the governing body of City does not appropriate funds sufficient to purchase the services as determined by City's budget for the fiscal year in question. City may effect such termination by giving Services Provider a written notice of termination at the end of its then current fiscal year. 9.01 PROMPT PAYMENT POLICY In accordance with Chapter 2251, V.T.C.A., Texas Government Code, payment to Services Provider will be made within thirty (30) days of the day on which City receives the performance, supplies, materials, equipment, and/or deliverables, or within thirty (30) days of the dayon which the performance of services was complete, or within thirty (30) days of the day on which City receives a correct invoice for the performance and/or deliverables or services, whichever is later. Services Provider may charge interest on an overdue payment at the "rate in 4 effect" on September 1 of the fiscal year in which the payment becomes overdue, in accordance with V.T.C.A., Texas Government Code, Section 2251.025(b); however, this Policy does not apply to payments made by City in the event: A. There is a bona fide dispute between City and Services Provider, a contractor, subcontractor or supplier about the goods delivered or the service performed that cause the payment to be late; or B. The terms of a federal contract, grant, regulation, or statute prevent City from making a timely payment with federal funds; or C. There is a bona fide dispute between Services Provider and a subcontractor or between a subcontractor and its supplier about the goods delivered or the service performed that causes the payment to be late; or D. Invoices are not mailed to City in strict accordance with instructions, if any, on the purchase order or the Agreement or other such contractual agreement. 10.01 GRATUITIES AND BRIBES City may, by written notice to Services Provider, cancel this Agreement without liability to Services Provider if it is determined by City that gratuities or bribes in the form of entertainment, gifts, or otherwise were offered or given by Services Provider or its agents or representatives to any City officer, employee or elected representative with respect to the performance of this Agreement. In addition, Services Provider may be subject to penalties stated in Title 8 of the Texas Penal Code. 11.01 TAXES City is exempt from Federal Excise and State Sales Tax; therefore, tax shall not be included in Services Provider's charges. 12.01 ORDERS PLACED WITH ALTERNATE SERVICES PROVIDERS If Services Provider cannot provide the goods as specified, City reserves the right and option to obtain the products from another supplier or suppliers. 13.01 INSURANCE Services Provider shall meet all insurance requirements as stated in the attached IFB, including all attachments and exhibits thereto, and Services Provider's bid response. 14.01 CITY'S REPRESENTATIVE City hereby designates the following representative authorized to act in its behalf with regard to this Agreement: Chad McDowell General Services Director 221 East Main Street Round Rock, Texas 78664 512-341-3191 15.01 RIGHT TO ASSURANCE Whenever either party to this Agreement, in good faith, has reason to question the other party's intent to perform hereunder, then demand may be made to the other party for written assurance of the intent to perform. In the event that no written assurance is given within the reasonable time specified when demand is made, then and in that event the demanding party may treat such failure as an anticipatory repudiation of this Agreement. 16.01 DEFAULT If Services Provider abandons or defaults under this Agreement and is a cause of City purchasing the specified goods elsewhere, Services Provider agrees that it may be charged the difference in cost, if any, and that it will not be considered in the re -advertisement of the service and that it may not be considered in future bids for the same type of work unless the scope of work is significantly changed. Services Provider shall be declared in default of this Agreement if it does any of the following: A. Fails to make any payment in full when due; B. Fails to fully, timely and faithfully perform any of its material obligations under this Agreement; C. Fails to provide adequate assurance of performance under the "Right to Assurance" section herein; or D. Becomes insolvent or seeks relief under the bankruptcy laws of the United States. 6 17.01 TERMINATION AND SUSPENSION A. City has the right to terminate this Agreement, in whole or in part, for convenience and without cause, at any time upon thirty (30) days' written notice to Services Provider. B. In the event of any default by Services Provider, City has the right to terminate this Agreement for cause, upon ten (10) days' written notice to Services Provider. C. Services Provider has the right to terminate this Agreement only for cause, that being in the event of a material and substantial breach by City, or by mutual agreement to terminate evidenced in writing by and between the parties. D. In the event City terminates under subsections (A) or (B) of this section, the following shall apply: Upon City's delivery of the referenced notice to Services Provider, Services Provider shall discontinue all services in connection with the performance of this Agreement and shall proceed to cancel promptly all existing orders and contracts insofar as such orders and contracts are chargeable to this Agreement. Within thirty (30) days after such notice of termination, Services Provider shall submit a statement showing in detail the goods and/or services satisfactorily performed under this Agreement to the date of termination. City shall then pay Services Provider that portion of the charges, if undisputed. The parties agree that Services Provider is not entitled to compensation for services it would have performed under the remaining term of the Agreement except as provided herein. 18.01 INDEMNIFICATION Services Provider shall defend (at the option of City), indemnify, and hold City, its successors, assigns, officers, employees and elected officials harmless from and against all suits, actions, legal proceedings, claims, demands, damages, costs, expenses, attorney's fees, and any and all other costs or fees arising out of, or incident to, concerning or resulting from the fault of Services Provider, or Services Provider's agents, employees or subcontractors, in the performance of Services Provider's obligations under this Agreement, no matter how, or to whom, such loss may occur. Nothing herein shall be deemed to limit the rights of City or Services Provider (including, but not limited to the right to seek contribution) against any third party who may be liable for an indemnified claim. 19.01 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES Services Provider, its agents, employees and subcontractors shall use best efforts to comply with all applicable federal and state laws, the Charter and Ordinances of the City of Round Rock, as amended, and with all applicable rules and regulations promulgated by local, state and national boards, bureaus and agencies. 20.01 ASSIGNMENT AND DELEGATION The parties each hereby bind themselves, their successors, assigns and legal representatives to each other with respect to the terms of this Agreement. Neither party shall assign, sublet or transfer any interest in this Agreement without prior written authorization of the other party. 21.01 NOTICES All notices and other communications in connection with this Agreement shall be in writing and shall be considered given as follows: 1. When delivered personally to the recipient's address as stated in this Agreement; or 2. Three (3) days after being deposited in the United States mail, with postage prepaid to the recipient's address as stated in this Agreement. Notice to Services Provider: Red & White Greenery, Inc. P.O. Box •126 Georgetown, TX 78626 Notice to City: Steve Norwood, City Manager 221 East Main Street AND TO: Round Rock, TX 78664 Stephan L. Sheets, City Attorney 309 East Main Street Round Rock, TX 78664 Nothing contained herein shall be construed to restrict the transmission of routine communications between representatives of City and Services Provider. 22.01 APPLICABLE LAW; ENFORCEMENT AND VENUE This Agreement shall be enforceable in Round Rock, Texas, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein, exclusive venue for same shall lie in Williamson County, Texas. This Agreement shall be governed by and construed in accordance with the laws and court decisions of the State of Texas. 8 23.01 EXCLUSIVE AGREEMENT This document, and all appended documents, constitutes the entire Agreement between Services Provider and City. This Agreement may only be amended or supplemented by mutual agreement of the parties hereto in writing, duly authorized by action of the City Manager or City Council. 24.01 DISPUTE RESOLUTION City and Services Provider hereby expressly agree that no claims or disputes between the parties arising out of or relating to this Agreement or a breach thereof shall be decided by any arbitration proceeding, including without limitation, any proceeding under the Federal Arbitration Act (9 USC Section 1-14) or any applicable state arbitration statute. 25.01 SEVERABILITY The invalidity, illegality, or unenforceability of any provision of this Agreement or the occurrence of any event rendering any portion or provision of this Agreement void shall in no way affect the validity or enforceability of any other portion or provision of this Agreement. Any void provision shall be deemed severed from this Agreement, and the balance of this Agreement shall be construed and enforced as if this Agreement did not contain the particular portion or provision held to be void. The parties further agree to amend this Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shall not prevent this entire Agreement from being void should a provision which is of the essence of this Agreement be determined void. 26.01 .MISCELLANEOUS PROVISIONS Standard of Care. Services Provider represents that it employs trained, experienced and competent persons to perform all of the services, responsibilities and duties specified herein and that such services, responsibilities and duties shall be performed in a manner according to generally accepted industry practices. Time is of the Essence. Services Provider understands and agrees that time is of the essence and that any failure of Services Provider to fulfill obligations for each portion of this Agreement within the agreed timeframes will constitute a material breach of this Agreement. Services Provider shall be fully responsible for its delays or for failures to use best efforts in accordance with the terms of this Agreement. Where damage is caused to City due to Services Provider's failure to perform in these circumstances, City may pursue any remedy available without waiver of any of City's additional legal rights or remedies. Force Majeure. Neither City nor Services Provider shall be deemed in violation of this Agreement if it is prevented from performing any of its obligations hereunder by reasons for 9 which it is not responsible as defined herein. However, notice of such impediment or delay in performance must be timely given, and all reasonable efforts undertaken to mitigate its effects. Multiple Counterparts. This Agreement may be executed in multiple counterparts, any one of which shall be considered an original of this document; and all of which, when taken together, shall constitute one and the same instrument. IN WITNESS WHEREOF, City and Services Provider have executed this Agreement on the dates indicated. City of Round Rock, Texas Red & White Greenery, Inc. By: Printed Name: Title: By: P ' , edName: 6v--,c-vi, (A&/ Tle: 1 9-ir,�Lt Date Signed: D . to gned:,%t/in t3 Attest: By:.. Sara L. White, City Secretary For City, s proved as/to Form: By: Stepha L. Sheets, City Attorney 10 ACG ti CERTIFICATE OF LIABILITY INSURANCE DATE(MM/DD/YYYY) 8/12/2013 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Watkins Insurance Group -Austin 3834 Spicewood Springs Rd, St Austin TX 78759 CONTACT NAME: Brittany Decker IA/cC.No.Exu:512-452-8877 FAic, No):512 452 0999 E-MAIL ADDRESS:bdeckerewatkinsinsurancegrDup.com LIMITS INSURER(S) AFFORDING COVERAGE NAIC # INSURER A :Service Lloyds Ins Co. 43389 INSURED REDWH-1 Red & White Greenery, Inc. Jason Fuller PO Box 126 Georgetown TX 78627 INSURER B :State Auto Mutual Ins Co 7/31/2013 INSURER C : EACH OCCURRENCE INSURER D : DAMAGE TO RENTED PREMISES (Ea occurrence) INSURER E : INSURER F : CLAIMS -MADE COVERAGES CERTIFICATE NUMBER: 1465924863 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADDL INSR SUBRPOLICY WVD POLICY NUMBER EFF I LMM/DD/YYYYUMM/ODIYYYYL POLICY EXP LIMITS B GENERAL LIABILITY COMMERCIAL GENERAL LIABILITY Y Y BOP 2693942 7/31/2013 7/31/2014 EACH OCCURRENCE 51,000,000 DAMAGE TO RENTED PREMISES (Ea occurrence) S300,000 CLAIMS -MADE X OCCUR MED EXP (Any one person) S5.000 PERSONAL & ADV INJURY 51,000,000 GENERAL AGGREGATE 52,000,000 GEN_ AGGREGATE LIMIT APPLIES PER: )71 POLICY n EC I" I LOC PRODUCTS - COMP/OP AGG 52,000,000 S B AUTOMOBILE X LIABILITY ANY AUTO ALL OWNED AUTOS HIRED AUTOS _ SCHEDULED AUTOS NON -OWNED AUTOS Y Y BAP 2358921 7/31/2013 7/31/2014 COMBINED SINGLE LIMIT (Ea accident) S1,000,000 BODILY INJURY (Per person) S BODILY INJURY (Per accident) S PROPERTY DAMAGE (Per accident) S S B X UMBRELLA LIAB EXCESS LIAB X OCCUR CLAIMS -MADE CXS 2111139 7/31/2013 7/31/2014 EACH OCCURRENCE 51,000,000 AGGREGATE S1.000,000 DED X RETENTION S10,000 5 A WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVEN OFFICER/MEMBER EXCLUDED? (Mandatory in NH) II yes, describe under DESCRIPTION OF OPERATIONS below Y / N / A y SRZE22556-13 7/31/2013 7/31/2014 X WC STATU- I TORY LIMITS OTH- ER E.L. EACH ACCIDENT S1,000,000 E.L. DISEASE - EA EMPLOYEE 51,000,000 E.L. DISEASE - POLICY LIMIT S1,000,000 8 Inland Marine BOP 2693942 7/31/2013 7/31/2014 Leased/Rented 10,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required) Subject to policy terms and conditions. Project: Right -Of -Way -Mowing City of Roud Rock and its officers, employees, and elected officials are additional insured on the general liability and auto policies with waiver of subrogation on the general liability, auto and workers compensation policies when required by written contract. General Liability is primary and non contributory. CERTIFICATE HOLDER CANCELLATION City of Round Rock 221 East Main Street Round Rock TX 78664 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZEDJ REPRESENTATIVENT ACORD 25 (2010/05) © 1988-2010 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD ROUND ROCK, TEXAS PURPOSE. PASSIOR PROSPERITY City of Round Rock Agenda Item Summary Agenda Number: H.9 Title: Consider a resolution authorizing the Mayor to execute a Right -of -Way Mowing Agreement with Red and White Greenery, Inc. Type: Resolution Governing Body: City Council Agenda Date: 9/12/2013 Dept Director: Rick Atkins, Parks and Recreation Director Cost: $30,400.00 Indexes: General Fund Attachments: Resolution, Exhibit A Text of Legislative File 13-675 Item Summary: This is item is for supplemental mowing to be done in addition to the two mowings a year that TxDOT does within the city limits along IH35 and Highway 79. This will give us an additional two mowings a year and staff has coordinated with TxDOT and they are in support of it. We will be addressing up to 200 acres of mowing in this contract. If we only need to mow a smaller area then we will pay a per acre price (anything Tess than 50 acres is one price). This project was put out to bid twice with the first request for bids receiving no responses and the second time only receiving one bid from Red and White Greenery. TxDOT informed staff that they are also having problems getting bids for mowning . Cost: $30,400.00 Source of Funds: General Fund Action: Staff recommends approval. City of Round Rock Page 1 Printed on 9/10/2013 EXECUTED ORIGINAL DOCUMENT FOLLOW CITY OF ROUND ROCK AGREEMENT FOR PURCHASE OF RIGHT-OF-WAY MOWING SERVICES WITH RED & WHITE GREENERY, INC. THE STATE OF TEXAS CITY OF ROUND ROCK COUNTY OF WILLIAMSON COUNTY OF TRAVIS KNOW ALL BY THESE PRESENTS: THIS AGREEMENT is for right-of-way mowing services on certain highway rights-of- way within or adjacent to the corporate boundaries of the City of Round Rock (referred to herein as the "Agreement"), and is made and entered into on this the 12A- day of the month of ���• , 2013, by and between the CITY OF ROUND ROCK, a Texas home - rule municipality, whose offices are located at 221 East Main Street, Round Rock, Texas 78664- 5299 (referred to herein as the "City"), and RED & WHITE GREENERY, INC., a Texas corporation whose offices are located at 5324 Highway 29 East, Georgetown, Texas 78626 (referred to herein as the "Services Provider"). RECITALS: WHEREAS, City desires to purchase right-of-way mowing services on certain highway rights-of-way within or adjacent to the corporate boundaries of the City, and associated goods and services, and City desires to purchase same from Services Provider; and WHEREAS, City has issued its "Invitation for Bid" for the provision of said goods, and City has selected the bid submitted by Services Provider; and WHEREAS, the parties desire to enter into this Agreement to set forth in writing their respective rights, duties, and obligations; NOW, THEREFORE, WITNESSETH: That for and in consideration of the mutual promises contained herein and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, it is mutually agreed between the parties as follows: 1.01 DEFINITIONS A. Agreement means the binding legal contract between City and Services Provider whereby City is obligated to buy specified services and Services Provider is obligated to sell same. The Agreement includes the following: (a) City's Invitation for Bid designated Solicitation Number 13-046, Specification Number 12-988-36 ("IFB"); (b) Services Provider's Response to IFB; (c) contract award; and (d) any exhibits, addenda, and/or amendments thereto. 00276524.doc/jmr ---r3-09 -12-40 Any inconsistencies or conflicts in the contract documents shall be resolved by giving preference in the following order: (1) This Agreement; (2) Services Provider's Response to IFB; (3) City's Invitation for Bids, exhibits, and attachments. B. City means the City of Round Rock, Williamson and Travis Counties, Texas. C. Effective Date means the date upon which the binding signatures of both parties to this Agreement are affixed. D. Force Majeure means acts of God, strikes, lockouts, or other industrial disturbances, acts of the public enemy, orders of any kind from the government of the United States or the State of Texas or any civil or military authority, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes, storms, floods, restraint of the government and the people, civil disturbances, explosions, or other causes not reasonably within the control of the party claiming such inability. E. Goods and services mean the specified services, supplies, materials, commodities, or equipment. 2.01 EFFECTIVE DATE, TERM, ALLOWABLE RENEWALS, PRICES FIRM A. This Agreement shall be effective on the date this Agreement has been signed by each party hereto, and shall remain in full force and effect unless and until it expires by operation of the term indicated herein, or is terminated or extended as provided herein. B. The term of this Agreement shall be for thirty-six (36) months from the effective date hereof. After that term, this Agreement may be renewed for two (2) successive twelve- month periods, under the same terms and conditions, only upon the express written agreement of both parties, and only provided that the Services Provider has performed each and every contractual obligation specified in this Agreement. C. Prices shall be firm for the duration of this Agreement and for any renewal periods. No separate line item charges shall be permitted for invoicing purposes, including but not limited to equipment rental, demurrage, costs associated with obtaining permits, or any other extraneous charges. City may permit "unit price" adjustments upwards only in accordance with Part 1, Item 10 of City's Invitation for Bid included as a part of Exhibit "A," attached hereto and incorporated herein by reference for all purposes. Any price increase shall be requested by Services Provider in writing and accompanied by the appropriate documentation to justify the 2 requested increase. Services Provider may offer price decreases at any time and in excess of any allowable percentage changes. D. City reserves the right to review the relationship at any time, and may elect to terminate this Agreement with or without cause or may elect to continue. 3.01 CONTRACT DOCUMENTS AND EXHIBITS City selected Services Provider to supply the services as outlined in the IFB; and Response to IFB submitted by Services Provider, all as specified in Exhibit "A." The intent of these documents is to formulate an Agreement listing the responsibilities of both parties as outlined in the IFB and as offered by Services Provider in its Response to the IFB. The services which are the subject matter of this Agreement are described in Exhibit "A" and, together with this Agreement, comprise the total Agreement and they are fully a part of this Agreement as if repeated herein in full. 4.01 ITEMS AWARDED; AND SCOPE OF WORK Items Awarded. Only if, as, and when needed by City, right-of-way mowing services are awarded to Services provider in accordance with the bid item shown on Exhibit "A," as follows: 219 Acres, as described in Exhibit "A" $65.00 per acre Scope of Work: For purposes of this Agreement, City has issued documents delineating the required services (specifically IFB 13-046 and Specification No. 12-988-36 dated April 2013). Services Provider has issued its response agreeing to provide all such required services in all specified particulars. All such referenced documents are included in Exhibit "A" attached hereto and made a part hereof for all purposes. When taken together with the appended exhibits, this Agreement shall evidence the entire understanding and agreement between the parties and shall supersede any prior proposals, correspondence or discussions. Services Provider shall satisfactorily provide all services described under the attached exhibits within the contract term specified in Section 2.01. Services Provider's undertakings shall be limited to performing services for City and/or advising City concerning those matters on which Services Provider has been specifically engaged. Services Provider shall perform its services in accordance with this Agreement, in accordance with the appended exhibits, in accordance with due care, and in accordance with prevailing industry standards for comparable services. 5.01 COSTS Only if, as, and when needed by City, the bid costs listed on Exhibit "A," which are specifically relevant to the referenced bid items, shall be the basis of any charges collected by Services Provider. 3 6.01 INVOICES All invoices shall include, at a minimum, the following information: A. Name and address of Services Provider; B. Purchase Order Number; C. Description and quantity of items received or services provided; and D. Delivery or performance dates. 7.01 INTERLOCAL COOPERATIVE CONTRACTING / PURCHASING Authority for local governments to contract with one another to perform certain governmental functions and services, including but not limited to purchasing functions, is granted under Government Code, Title 7, Chapter 791, Interlocal Cooperation Contracts, Subchapter B and Subchapter C, and Local Government Code, Title 8, Chapter 271, Subchapter F, Section 271.101 and Section 271.102. Other governmental entities within the State of Texas may be extended the opportunity to purchase off of the City's bid, with the consent and agreement of the successful vendor(s) and the City. Such agreement shall be conclusively inferred for the vendor from lack of exception to this clause in the vendor's response. However, all parties hereby expressly agree that the City is not an agent of, partner to, or representative of those outside agencies or entities and that the City is not obligated or liable for any action or debts that may arise out of such independently -negotiated "piggyback" procurements. 8.01 NON -APPROPRIATION AND FISCAL FUNDING This Agreement is a commitment of City's current revenues only. It is understood and agreed that City shall have the right to terminate this Agreement at the end of any City fiscal year if the governing body of City does not appropriate funds sufficient to purchase the services as determined by City's budget for the fiscal year in question. City may effect such termination by giving Services Provider a written notice of termination at the end of its then current fiscal year. 9.01 PROMPT PAYMENT POLICY In accordance with Chapter 2251, V.T.C.A., Texas Government Code, payment to Services Provider will be made within thirty (30) days of the day on which City receives the performance, supplies, materials, equipment, and/or deliverables, or within thirty (30) days of the day on which the performance of services was complete, or within thirty (30) days of the day on which City receives a correct invoice for the performance and/or deliverables or services, whichever is later. Services Provider may charge interest on an overdue payment at the "rate in 4 effect" on September 1 of the fiscal year in which the payment becomes overdue, in accordance with V.T.C.A., Texas Government Code, Section 2251.025(b); however, this Policy does not apply to payments made by City in the event: A. There is a bona fide dispute between City and Services Provider, a contractor, subcontractor or supplier about the goods delivered or the service performed that cause the payment to be late; or B. The terms of a federal contract, grant, regulation, or statute prevent City from making a timely payment with federal funds; or C. There is a bona fide dispute between Services Provider and a subcontractor or between a subcontractor and its supplier about the goods delivered or the service performed that causes the payment to be late; or D. Invoices are not mailed to City in strict accordance with instructions, if any, on the purchase order or the Agreement or other such contractual agreement. 10.01 GRATUITIES AND BRIBES City may, by written notice to Services Provider, cancel this Agreement without liability to Services Provider if it is determined by City that gratuities or bribes in the form of entertainment, gifts, or otherwise were offered or given by Services Provider or its agents or representatives to any City officer, employee or elected representative with respect to the performance of this Agreement. In addition, Services Provider may be subject to penalties stated in Title 8 of the Texas Penal Code. 11.01 TAXES City is exempt from Federal Excise and State Sales Tax; therefore, tax shall not be included in Services Provider's charges. 12.01 ORDERS PLACED WITH ALTERNATE SERVICES PROVIDERS If Services Provider cannot provide the goods as specified, City reserves the right and option to obtain the products from another supplier or suppliers. 13.01 INSURANCE Services Provider shall meet all insurance requirements as stated in the attached IFB, including all attachments and exhibits thereto, and Services Provider's bid response. 5 14.01 CITY'S REPRESENTATIVE City hereby designates the following representative authorized to act in its behalf with regard to this Agreement: Chad McDowell General Services Director 221 East Main Street Round Rock, Texas 78664 512-341-3191 15.01 RIGHT TO ASSURANCE Whenever either party to this Agreement, in good faith, has reason to question the other party's intent to perform hereunder, then demand may be made to the other party for written assurance of the intent to perform. In the event that no written assurance is given within the reasonable time specified when demand is made, then and in that event the demanding party may treat such failure as an anticipatory repudiation of this Agreement. 16.01 DEFAULT If Services Provider abandons or defaults under this Agreement and is a cause of City purchasing the specified goods elsewhere, Services Provider agrees that it may be charged the difference in cost, if any, and that it will not be considered in the re -advertisement of the service and that it may not be considered in future bids for the same type of work unless the scope of work is significantly changed. Services Provider shall be declared in default of this Agreement if it does any of the following: A. Fails to make any payment in full when due; B. Fails to fully, timely and faithfully perform any of its material obligations under this Agreement; C. Fails to provide adequate assurance of performance under the "Right to Assurance" section herein; or D. Becomes insolvent or seeks relief under the bankruptcy laws of the United States. 6 17.01 TERMINATION AND SUSPENSION A. City has the right to terminate this Agreement, in whole or in part, for convenience and without cause, at any time upon thirty (30) days' written notice to Services Provider. B. In the event of any default by Services Provider, City has the right to terminate this Agreement for cause, upon ten (10) days' written notice to Services Provider. C. Services Provider has the right to terminate this Agreement only for cause, that being in the event of a material and substantial breach by City, or by mutual agreement to terminate evidenced in writing by and between the parties. D. In the event City terminates under subsections (A) or (B) of this section, the following shall apply: Upon City's delivery of the referenced notice to Services Provider, Services Provider shall discontinue all services in connection with the performance of this Agreement and shall proceed to cancel promptly all existing orders and contracts insofar as such orders and contracts are chargeable to this Agreement. Within thirty (30) days after such notice of termination, Services Provider shall submit a statement showing in detail the goods and/or services satisfactorily performed under this Agreement to the date of termination. City shall then pay Services Provider that portion of the charges, if undisputed. The parties agree that Services Provider is not entitled to compensation for services it would have performed under the remaining term of the Agreement except as provided herein. 18.01 INDEMNIFICATION Services Provider shall defend (at the option of City), indemnify, and hold City, its successors, assigns, officers, employees and elected officials harmless from and against all suits, actions, legal proceedings, claims, demands, damages, costs, expenses, attorney's fees, and any and all other costs or fees arising out of, or incident to, concerning or resulting from the fault of Services Provider, or Services Provider's agents, employees or subcontractors, in the performance of Services Provider's obligations under this Agreement, no matter how, or to whom, such loss may occur. Nothing herein shall be deemed to limit the rights of City or Services Provider (including, but not limited to the right to seek contribution) against any third party who may be liable for an indemnified claim. 19.01 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES Services Provider, its agents, employees and subcontractors shall use best efforts to comply with all applicable federal and state laws, the Charter and Ordinances of the City of Round Rock, as amended, and with all applicable rules and regulations promulgated by local, state and national boards, bureaus and agencies. 7 20.01 ASSIGNMENT AND DELEGATION The parties each hereby bind themselves, their successors, assigns and legal representatives to each other with respect to the terms of this Agreement. Neither party shall assign, sublet or transfer any interest in this Agreement without prior written authorization of the other party. 21.01 NOTICES All notices and other communications in connection with this Agreement shall be in writing and shall be considered given as follows: 1. When delivered personally to the recipient's address as stated in this Agreement; or 2. Three (3) days after being deposited in the United States mail, with postage prepaid to the recipient's address as stated in this Agreement. Notice to Services Provider: Red & White Greenery, Inc. P.O. Box 126 Georgetown, TX 78626 Notice to City: Steve Norwood, City Manager 221 East Main Street AND TO: Round Rock, TX 78664 Stephan L. Sheets, City Attorney 309 East Main Street Round Rock, TX 78664 Nothing contained herein shall be construed to restrict the transmission of routine communications between representatives of City and Services Provider. 22.01 APPLICABLE LAW; ENFORCEMENT AND VENUE This Agreement shall be enforceable in Round Rock, Texas, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein, exclusive venue for same shall lie in Williamson County, Texas. This Agreement shall be governed by and construed in accordance with the laws and court decisions of the State of Texas. 8 23.01 EXCLUSIVE AGREEMENT This document, and all appended documents, constitutes the entire Agreement between Services Provider and City. This Agreement may only be amended or supplemented by mutual agreement of the parties hereto in writing, duly authorized by action of the City Manager or City Council. 24.01 DISPUTE RESOLUTION City and Services Provider hereby expressly agree that no claims or disputes between the parties arising out of or relating to this Agreement or a breach thereof shall be decided by any arbitration proceeding, including without limitation, any proceeding under the Federal Arbitration Act (9 USC Section 1-14) or any applicable state arbitration statute. 25.01 SEVERABILITY The invalidity, illegality, or unenforceability of any provision of this Agreement or the occurrence of any event rendering any portion or provision of this Agreement void shall in no way affect the validity or enforceability of any other portion or provision of this Agreement. Any void provision shall be deemed severed from this Agreement, and the balance of this Agreement shall be construed and enforced as if this Agreement did not contain the particular portion or provision held to be void. The parties further agree to amend this Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shall not prevent this entire Agreement from being void should a provision which is of the essence of this Agreement be determined void. 26.01 MISCELLANEOUS PROVISIONS Standard of Care. Services Provider represents that it employs trained, experienced and competent persons to perform all of the services, responsibilities and duties specified herein and that such services, responsibilities and duties shall be performed in a manner according to generally accepted industry practices. Time is of the Essence. Services Provider understands and agrees that time is of the essence and that any failure of Services Provider to fulfill obligations for each portion of this Agreement within the agreed timeframes will constitute a material breach of this Agreement. Services Provider shall be fully responsible for its delays or for failures to use best efforts in accordance with the terms of this Agreement. Where damage is caused to City due to Services Provider's failure to perform in these circumstances, City may pursue any remedy available without waiver of any of City's additional legal rights or remedies. Force Majeure. Neither City nor Services Provider shall be deemed in violation of this Agreement if it is prevented from performing any of its obligations hereunder by reasons for 9 which it is not responsible as defined herein. However, notice of such impediment or delay in performance must be timely given, and all reasonable efforts undertaken to mitigate its effects. Multiple Counterparts. This Agreement may be executed in multiple counterparts, any one of which shall be considered an original of this document; and all of which, when taken together, shall constitute one and the same instrument. IN WITNESS WHEREOF, City and Services Provider have executed this Agreement on the dates indicated. City of Round Rock, Texas Red & White Greenery, Inc. By: By: Printed Name: 1-‘401 N► Z/1/ Printe Title: (VIA Very-- Title. Date Signed: 9 .(2•11 Date Attest: By: Sara L. White, City SecretaPiC.k 4' - For City, By: oved as to orm: Steph. L. Sheets, City Attorney 10 ACOR©f CERTIFICATE OF LIABILITY INSURANCE ‘.------- DATE(MM/DDIYYYY) 8/12/2013 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Watkins Insurance Group Austin 3834 Spicewood Springs Rd, St Austin TX 78759 CONT NAMEACT Brittany Decker (a°NN .. Ext1:512-452-8877 (,o/c, Na):512 452 0999 E-MAIL DDSS:bdecker watkinsinsurance rou com @ g p, INSURER(S) AFFORDING COVERAGE NAIC # INSURER A :Service Lloyds Ins. Co. INSURER B State Auto Mutual Ins Co 43389 INSURED REDWH-1 Red & White Greenery, Inc. Jason Fuller PO Box 126 Georgetown TX 78627 INSURER C : BOP 2693942 INSURER D : 7/31/2014 INSURER E : $1,000,000 INSURER F : $300,000 COVERAGES CERTIFICATE NUMBER: 1465924863 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADDL INSR SUBR WVD POLICY NUMBER POLICY EFF (MM/DD/YYYY) POLICY EXP (MM/DD/YYYY) LIMITS B GENERAL LIABILITY COMMERCIAL GENERAL LIABILITY Y Y BOP 2693942 7/31/2013 7/31/2014 EACH OCCURRENCE $1,000,000 DAMAGE TO RENTED PREMISES (Ea occurrence) $300,000 CLAIMS -MADE X OCCUR MED EXP (Any one person) 65,000 PERSONAL & ADV INJURY S1,000,000 GENERAL AGGREGATE $2,000,000 GEN'L X AGGREGATE POLICY X LIMIT APPLIES 77 X PER: LOC PRODUCTS - COMP/OP AGG 52,000,000 S B AUTOMOBILE X LIABILITY ANY AUTO ALL OWNED AUTOS HIRED AUTOS SCHEDULED AUTOS NON -OWNED AUTOS Y Y BAP 2358921 7/31/2013 7/31/2014 COMBINED SINGLE LIMIT (Ea accident) 51,000,000 BODILY INJURY (Per person) $ BODILY INJURY (Per accident) $ PROPERTY DAMAGE (Per accident) $ S B X UMBRELLA LIAB EXCESS LIAB X OCCUR CLAIMS -MADE CXS 2111139 7/31/2013 7/31/2014 EACH OCCURRENCE $1,000,000 AGGREGATE 51,000,000 DED X I RETENTION$10,000 S A WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? (Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS below Y / N N / A Y SRZE22556-13 7/31/2013 7/31/2014 X TWC STATU- ORY LIMITS i• OER E.L. EACH ACCIDENT 51,000,000 E.L. DISEASE - EA EMPLOYEE 51,000,000 E.L. DISEASE - POLICY LIMIT S1,000,000 B Inland Marine BOP 2693942 7/31/2013 7/31/2014 Leased/Rented 10,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required) Subject to policy terms and conditions. Project: Right -Of -Way -Mowing City of Roud Rock and its officers, employees, and elected officials are additional insured on the general liability and auto policies with waiver of subrogation on the general liability, auto and workers compensation policies when required by written contract. General Liability is primary and non contributory. CERTIFICATE HOLDER CANCELLATION City of Round Rock 221 East Main Street Round Rock TX 78664 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE ACORD 25 (2010/05) © 1988-2010 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD