R2004-087 06-14-04RESOLUTION NO. R2004-87
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO
ENTER INTO AN INTERLOCAL AGREEMENT WITH CITY OF BAYTOWN
FOR COOPERATION IN THE PURCHASE OF WATER METERS.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That certain interlocal agreement by and between the City of Pearland
and the City of Baytown, a copy of which is attached hereto as Exhibit "A" and made a part
hereof for all purposes, is hereby authorized and approved.
Section 2. That the City Manager or his designee is hereby authorized to execute
and the City Secretary to attest an interlocal agreement with the City of Baytown, for
cooperation in the purchase of water meters.
PASSED, APPROVED and ADOPTED this the 14th day of June
A.D., 2004.
TOM REID
MAYOR
ATTEST:
APPROVED AS TO FORM:
au_L_ ad_
DARRIN M. COKER
CITY ATTORNEY
Exhibit "A"
Resolution No. R2004-87
INTERLOCAL AGREEMENT
FOR THE WATER METER CHANGE -OUT AND RETROFIT PROGRAM AND A
WATER METER SUPPLY CONTRACT
STATE OF TEXAS
COUNTY OF HARRIS
This Agreement made this the 14th day of June , 2004, between the City of Baytown,
Texas, a home -rule municipal corporation located in Harris and Chambers Counties, Texas, and the City of
Pearland, Texas, a municipal corporation located in Brazoria County, Texas.
WITNESSETH
Pursuant to the authority granted by the Texas Interlocal Cooperation Act (Tex. Gov't Code Ann.
§§791.001, et seq.) providing for the cooperation between local governmental bodies, and pursuant to
Subchapter F entitled "Cooperative Purchasing Program" containing Sections 271.101 and 271.102 of the
Texas Local Government Code, the parties hereto, in consideration of the premises and mutual promises
contained herein agree to as follows:
I.
The City of Baytown ("Baytown") hereby designates its Purchasing Manager to act under the direction
of and on behalf of Baytown for the water meter change -out and retrofit program and a water meter supply
contract, pursuant to Pearland's Agreement with Southwest Stainless, L.P.; d/b/a Hughes Supply ("HSI"),
which was let in accordance with Chapter 252 of the Texas Local Government Code and all other applicable
laws and which agreement is attached hereto as Exhibit "A" and incorporated herein for all intents and
purposes.
II.
Baytown, by execution of this Agreement, agrees to directly pay HSI after completion and acceptance
of the work specified in each work order for Baytown's water meter change -out and retrofit program and/or
the supply of water meters, and after receipt of a proper invoice therefor an amount based upon the unit pricing
detailed in the attached agreement.
Neither Pearland nor Baytown shall assume any responsibility or liability to pay for materials
purchased or services performed for the benefit of the other entity. Baytown's payment required by this article
shall be made from current, available revenues. Furthermore, both parties agree that the payment required
herein fairly compensates Pearland for any services or functions required to be performed under this
Agreement. In obtaining the services of HSI through Pearland, Baytown has relied solely on its own
inspections, investigations and due diligence regarding the services and Baytown acknowledges that Pearland
has made no representations or warranties expressed or implied with respect to the services to be rendered.
This Agreement shall take effect upon execution by the signatories contingent to the sale of series
2004 Certificates of Obligation and shall serve as each governmental body's commitment pertaining to
Baytown's purchase of the services referenced in Article I hereof. This Agreement has been authorized by the
governing bodies of the parties hereto.
Interlocal Agreement, Page 1
IV.
This Agreement shall be in effect from and after the 14thday of June , 2004, the date of
execution by Baytown.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
authorized officers the day and year specified in Article IV.
CITY OF BAYTOWN
d
GARY JACKN, City Manager
APPROVED AS TO FORM:
CITY OF PEARLAND
Bill Eisen
(Printed Name)
(Title)
ATTEST:
City Manager
Young Lorfing, TRMC
(Printed Name)
City Secretary
(Title)
APPROVED AS TO FORM:
GT ACIO RAMIREZ, SR., Attorney (Signature)
Darrin Coker
(Printed Name)
(Title)
City Attorney
F:\ICaren\files\Contracts\Interlocal Agreement\PearlandWaterMeterChangeOut.doc
Interlocal Agreement, Page 2
SUPPLEMENTAL AGREEMENT
CONCERNING THE
WATER METER CHANGE -OUT AND RETROFIT PROGRAM AND NEW
METER SUPPLY CONTRACT
STATE OF TEXAS
KNOWN BY THESE PRESENTS:
COUNTY OF HARRIS
This Supplemental Agreement concerning the Water Meter Change -out and Retrofit
Program and new meter supply contract is made this 1 day of p ec , 2004, by and
between the City of Baytown, Texas, acting by and through its City Council of the City of
Baytown, Texas hereinafter referred to as the "City," and Southwest Stainless, L.P., d/b/a
Hughes Supply, a Delaware corporation authorized to do business in Texas, hereinafter referred
to as the "Contractor"; and the Parties do hereby make and enter into the following agreement:
I.
In General
1.01 Agreement. Both the contract with Pearland and this Supplemental Agreement shall
herein be referred to collectively as the "Agreement." Should any term or condition in
this document conflict with the contract with Pearland, this document shall control.
1.02 Award of Contract. Upon the execution of this Agreement and prior to performing any
work hereunder, the Contractor shall deliver to the City all documents, bonds, and
certificates of insurance required in this Agreement. The Contractor shall be prepared to
perform the work in the most expedient manner possible due to the commencement of the
time for final completion, which shall be'acalendar days after the City issues a notice to
proceed. The work shall be commenced within ten (10) calendar days of the date
specified in the notice to proceed or work order. In the event of any dispute, the records
of the City shall be conclusive evidence as to the commencement date. Time is of the
essence in this Agreement.
1.03 City's Representative. The project shall be administered by the City's Representative,
who shall periodically review and shall inspect the work of the Contractor and inspect the
work performed under this Agreement to ensure that said work is performed in
accordance with this Agreement. The Contractor shall regard and obey the directions and
instructions of City's Representative, provided such directions and instructions are
consistent with the obligations of this Agreement. Should the Contractor object to any
orders by the City's Representative, the Contractor may within two (2) calendar days
from receipt of such order make written appeal to the City Manager for his decision.
1.04 Work. The Contractor shall complete and be responsible for all work as specified,
indicated, or described in this Agreement. All work done and all materials furnished
shall be in strict conformity with this Agreement. In the event that the Contractor fails to
perform the work as required for final completion, the Owner may contract with a third
party to complete the work and the Contractor shall assume and pay the costs of the
performance of the work specified or contemplated by the Agreement. The Contractor
shall provide and pay for all materials, supplies, machinery, equipment, tools,
superintendents, laborers, insurance, fuel, transportation, and all other facilities and
utilities necessary for the execution and completion of the work specified or
contemplated in the Agreement. All work shall be done and all materials furnished in
strict conformity with the Agreement and recognized industry standards.
1.05 Materials. Materials and supplies utilized shall be new and of good quality. No
refurbished, reconditioned or other previously utilized materials or supplies will be used
without the signed authorization of City.
1.06 Progress of Work. The Contractor shall coordinate its activities and work with the City.
If requested by the City's Representative, the Contractor shall provide schedules of
planned activities, which may be reviewed on a daily basis. The Contractor shall submit,
at such time as may reasonably be requested by OWNER, further schedules that shall list
the order in which the Contractor proposes to carry on the work with dates at which the
Contractor will start the several parts of the work and the estimated dates of completion
of the several parts. The Contractor shall attend additional meetings called by the City or
the City's Representative upon twenty-four (24) hours' notice unless otherwise agreed by
the parties. Throughout the progress of the work, the Contractor shall keep the working
area free from debris of all types and remove from premises all rubbish resulting from
any work being done by it. At the completion of the work, the Contractor shall leave the
premises in a clean and finished condition. Any failure to do so may be remedied by the
City or its designee and charged back to and permanently withheld from the Contractor.
1.07 Inspections. The City reserves the right to enter the property by such employee(s) or
agent(s) as it may elect for the purpose of inspecting the work or to perform collateral
work as the City deems necessary. Additionally, the City shall have the right, at any
reasonable time, to observe and test the work. The City's Representative or the City may
reject any work found to be defective or not in accordance with the Agreement,
regardless of the state of its completion or the time or place of its discovery and
regardless of whether the City had previously accepted the work through oversight or
otherwise. Neither observations by the City or the City's Representative nor inspections,
tests, or approvals made by the City or the City's Representative, or persons authorized
under this Agreement to make such inspections, tests, or approvals, shall relieve the
Contractor from its obligation to perform the work in accordance with the requirements
of the Agreement.
1.08 Work Stoppage. The City or the City's Representative shall have the right to order the
work of the Contractor or any subcontractor wholly or partially stopped immediately (i) if
in the judgment of the City or the City's Representative, any of the materials furnished or
the work being done is not in strict accordance with this Agreement; (ii) until
objectionable materials are removed; or (iii) if any portion of the work is being performed
so as to create a hazardous condition. Such stoppage or suspension shall neither
invalidate any of the Contractor's performance obligations under this Agreement,
including time of performance and deadlines therefor, nor will extra charge be allowed
the Contractor by reason of such stoppage or suspension.
1.09 Rejected Work. The City or the City's Representative, in its discretion, may reject any
and all work that is found to be defective or deemed not in conformity with this
Agreement. The City or the City's Representative may reject said work or any portion
thereof regardless of the stage of its completion or time or place of discovery of such
errors and regardless of whether the City or the City's Representative has previously
accepted the work through oversight or otherwise. In the event that any work or any part
thereof is rejected by the City or the City's Representative, the Contractor shall, at its sole
expense and after receipt of written notice thereof from the City or the City's
Representative remove the rejected work or otherwise remedy such work within the time
specified in the notice so that it shall be in full compliance with this Agreement If such
rejected work is not remedied within the time period established in the notice, the City
may have the work removed, replaced or repaired at the Contractor's expense.
1.010 Time. The Contractor agrees that it shall not be entitled to, nor will it request an
extension of time for final completion under this Agreement, except if the work has been
delayed by changes ordered in the work, or reductions thereto in writing. Within seven
(7) calendar days of any act or incident that the Contractor reasonably believes may
justify an extension of time for final completion, the Contractor may apply in writing for
an extension of such time, submitting therewith all written justification as may be
required by the City. Thereafter, the City's Representative, within seven (7) calendar
days after receipt of a written request for an extension of time from the Contractor, which
is supported by all requested documentation, shall then grant or deny such written
request. The Contractor, in undertaking to complete the work within the time herein
fixed, has taken into consideration and made allowance for all hindrances and delays
incident to such work, whether growing out of delays in securing material or workmen or
weather or otherwise.
1.011 Extensions of Time. No charge whatsoever shall be made by the Contractor for
hindrances or delays from any cause whatever, except where the work is stopped by order
of the City, during the progress of any portion of the work contemplated by the
specifications, but the City's Representative may grant an extension of time for the
completion of the work, provided the City is satisfied that such delays or hindrances were
due to the extraordinary causes or to the acts of omission or commission by the City. It is
agreed that the granting of such extensions of time shall in no instance exceed the time
actually lost by the Contractor for reason of such causes, provided that the Contractor
shall give the City immediate notice in writing of the cause of the detention or delay.
1.012 Independent Contractor. The Contractor as an independent contractor covenants and
agrees to supply all materials and equipment and perform services as detailed in the
contract with the City of Pearland in accordance with this Supplemental Agreement for
the City of Baytown. The Contractor represents that it has or will secure at its own
expense, all personnel required in performing the services under this Agreement. Such
personnel shall not be employees of or have any contractual relationship with the City.
The Contractor shall have ultimate control over the execution of the work under this
Agreement. It shall be the responsibility of the Contractor to furnish a completed work
product that meets the requirements of the City. The Contractor may contract with
subcontractors for portions of the work or services under this Agreement with the prior
written approval of the City.
1.013 Communications. The Contractor shall forward all communications, written or oral, to
the City through the City's Representative.
1.014 Payment. The Contractor agrees to perform the work for all of the work under this
Agreement and the City agrees to pay the Contractor based upon the unit prices
enumerated in the Agreement for the actual amount of accepted work done and materials
furnished on the project. Reduction in the scope or quantity of work on unit price items
shall merely reduce the number of units. The Contractor shall never be entitled to
anticipated or lost profits on the deleted or reduced portion of the work.
The City's Representative shall review Contractor's applications for payment and
supporting data, determine the amount owed to the Contractor and approve the
appropriate payment to Contractor in such amounts. The Contractor shall submit
applications to the City's Representative for progress payments no more often than once
a month, unless otherwise agreed by the City. Whenever the Contractor's application for
payment includes payment for work that is determined to be either (1) not in accordance
with this Agreement, or (2) defective, the City may, in its sole discretion, withhold
progress payments. Progress payments will be made, less the five percent (5%) retainage
and additional amounts that may be withheld in accordance with this Agreement. The
City may suspend at any time suspend progress payments if, in the sole discretion of the
City's Representative, it believes that the Contractor will not complete the work due to
actual default or that the Contractor has represented or done some act that indicates that
the Contractor will not complete the work in accordance with this Agreement. Each
undisputed application for payment is due and payable by the City within thirty days
following the date of its receipt by the City or withinthirty days of receipt of the invoiced
services, whichever is later.
After final completion and acceptance of the work, the City shall pay the Contractor the
remainder of the price due under this Agreement less any sums withheld under other
terms of this Agreement.
1.015 Payments Withheld. The City may, on account of subsequently discovered evidence,
withhold payment or nullify the whole or part of any acceptance or certificate to such
extent as may be necessary to protect the City from loss on account of (i) defective work
or work that is not in strict accordance with the terms of this Agreement, (ii) claims filed
or reasonable evidence indicating probable filing of claims, as determined at the sole
discretion of the City; (iii) failure of the Contractor to make prompt payments to
subcontractors or for material or labor or materialmen; (iv) claims filed or reasonable
evidence, as determined at the sole discretion of the City, of damage to another contractor
or a third party, including adjacent property owners; (v) reasonable doubt, as determined
at the sole discretion of the City, that the work can be completed for the unpaid balance
of the contract amount; (vi) charges made for repairs to the Contractor's defective work
or repairs made by the City to correct damage to other property; (vii) claims filed or
reasonable evidence as determined at the sole discretion of the City indicating
unremedied damage to property owned by the City; or (viii) Other amounts authorized
under this Agreement.
1.016 Contract Contingency. The terms of this Agreement are contingent upon sufficient
appropriations and authorization being made by the City for the performance of this
Agreement. If at any time during the period of performance under this Agreement, the
City does not make sufficient appropriations and authorizations, this Agreement shall
terminate upon written notice being given by the City to the Contractor. The City's
decision as to whether sufficient appropriations are available shall be accepted by the
Contractor and shall be final.
1.017 Legal Compliance. The Contractor shall secure and pay all permits, fees, licenses, and
inspections necessary for the proper execution and completion of the work. Additionally,
the Contractor shall have the sole obligation to pay any and all charges and fees and give
all notices necessary to and incidental to the lawful prosecution of the work hereunder.
The Contractor will not, however, be required to pay for any permit fees for permits to be
issued by the City of Baytown, which will be waived in conjunction with this Agreement.
The Contractor shall give all notices required by law or that may be otherwise required
by the City and comply with all laws, ordinances, regulations, codes, rules and lawful
orders of all public authorities bearing on the performance of the work.
1.018 Modification. This Agreement may not be altered, changed or amended except by
instrument in writing executed by the parties hereto.
1.019 Abandonment. In case the Contractor should abandon, fail or refuse to resume work
within ten (10) days after written notification from the City or the City's Representative
or if the Contractor fails to comply withthe orders of the. City or the City' s
Representative, when such orders are consistent with the Agreement, then, the sureties on
the performance bond shall be notified in writing and directed to complete the work, and
a copy of said notice shall be delivered to the Contractor. After receiving said notice of
abandonment, the Contractor shall not remove from the work any machinery, equipment,
tools, materials, or supplies then on the job, but the same, together with any materials and
equipment under contract for the work, may be held for use on the work by the OWNER
or the surety on the performance bond, or another contractor in completion of the work;
and the Contractor shall not receive any rental or credit therefor, it being understood that
the use of such equipment and materials will ultimately reduce the cost to complete the
work and be reflected in the final settlement.
1.020 Termination. This Agreement, with the exception of Section 2.02 may be terminated
before the expiration date by any of the following conditions.
a. Right of either party to terminate for cause. This Agreement may be terminated
by either of the parties hereto for failure by the other party to perform in a timely
and proper manner its obligation under this Agreement. A signed written notice
of such termination shall be delivered to the other party by registered or certified
mail and such termination shall take effect twenty days after the notice is
deposited in the mail provided that the failure to perform has not been remedied in
full prior to the expiration of the twenty -day period. By such termination, either
party may nullify obligations already incurred for the performances or failure to
perform before the termination date.
Right of the City to terminate for convenience. This Agreement may also be
terminated by the City for reasons other than failure by the Contractor to perform
in a timely and proper manner its obligations under this Agreement. A signed,
written notice of such termination shall be delivered to Contractor by registered or
certified mail and such termination shall take effect not less than seven days
following the date that the notice is deposited in the mail or at 5:00 p.m. on the
date the notice is received by the Contractor, whichever is sooner.
Upon receipt of a notice of termination by the Contractor, the Contractor shall, unless the
notice otherwise directs, immediately discontinue all work in connection with this
Agreement. Within thirty (30) days after the Contractor submits a statement of the actual
work performed and an invoice therefor, the City shall pay the Contractor allowable costs
incurred, less previous payments. The City will only be obligated to compensate the
Contractor in a just and equitable manner for those services actually performed prior to
the effective date of termination.
Nothing contained herein shall relieve Contractor of liability to the City for damages
sustained by the City by virtue of any negligent act or omission or any breach of the
Agreement.
1.021 Warranty. The Contractor shall warrant for a period of one calendar year after
acceptance of the Work that all work and materials provided be of good quality, free from
faults and defects, and in conformance with this Agreement. This warranty is in addition
to any rights or warranties expressed or implied by law and consumer protection claims
arising from misrepresentations by the Contractor. Where more than a one (1) year
warranty is specified for individual products, work or materials, the longer warranty shall
govern. This warranty shall not constitute the exclusive remedy of the City.
If within the warranty period, any of the work is found or determined to be defective or
otherwise not in accordance with this Agreement, the Contractor shall correct it promptly.
If the Contractor fails to commence making the necessary corrections or adjustments
before the time specified in the notice given by the City to the Contractor, the City is
hereby authorized to make the corrections or adjustments, or to order the work to be done
by a third party. The cost of the work shall be paid by the Contractor.
H.
Insurance, Indemnity, Bonds
2.01 Insurance. Throughout the term of this Agreement, the Contractor at its own expense
shall purchase, maintain and keep in force and effect insurance against claims for injuries
to or death of persons or damages to property which may arise out of or result from the
Contractor's services, whether such services be by the Contractor, its agents,
representatives, volunteers, employees or subcontractors or by anyone directly or
indirectly employed by any of them, or by anyone for whose acts any of them may be
liable.
The Contractor's insurance coverage shall be primary insurance with respect to the City,
its officers, agents and employees. Any insurance or self-insurance maintained by the
City, its officials, agents and employees shall be considered in excess of the Contractor's
insurance and shall not contribute to it. All coverage for subcontractors shall be subject
to all of the requirements stated herein.
The following insurance shall be required under this Agreement and. shall meet or exceed
the minimum requirements set forth herein:
1. Commercial General Liability
• General Aggregate: $1,000,000
• Per Occurrence: $500,000
• Coverage shall be at least as broad as ISO CG 00 01 10 93
• No coverage shall be deleted from standard policy without notification of
individual exclusions being attached for review and acceptance.
2. Business Automobile Policy
• Combined Single Limits: $1,000,000
• Coverage for "Any Auto"
3. Workers' Compensation
• Statutory Limits
• Employer's Liability $500,000
• Waiver of Subrogation required.
Prior to any work being performed on the site, the Contractor shall file with the City valid
Certificates of Insurance and endorsements acceptable to the City. Such Certificates shall
contain a provision that coverage afforded under the policies will not be canceled,
suspended, voided, or reduced until at least thirty (30) days' prior written notice has been
given to the City via certified mail, return receipt requested.
The Contractor shall also file with the City valid Certificates of Insurance covering all
subcontractors.
The following are general requirements applicable to all policies:
> AM Best Rating of A; VII or better.
> Insurance carriers licensed and admitted to do business in State of Texas will be
accepted.
2.02
> Upon request of and without cost to City of Baytown, certified copies of all insurance
policies and/or certificates of insurance shall be furnished to City of Baytown's
representative. Certificates of insurance showing evidence of insurance coverage
shall be provided to City of Baytown's representative prior to any work being
performed at the site.
> Liability policies must be on occurrence form.
> Each insurance policy shall be endorsed to state that coverage shall not be suspended,
voided, canceled or reduced in coverage or in limits except after thirty (30) days'
prior written notice by certified mail, return receipt requested, has been given to the
City.
> The City, its officers, agents and employees are to be added as Additional Insureds to
all liability policies.
> 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.
> Upon request of and without cost to City of Baytown, loss runs (claims listing) of any
and/or all insurance coverage shall be furnished to City of Baytown's representative.
THE CONTRACTOR AGREES TO AND SHALL INDEMNIFY,
HOLD HARMLESS, AND DEFEND THE CITY, ITS OFFICERS,
AGENTS AND EMPLOYEES (HEREINAFTER COLLECTIVELY
REFERRED TO AS THE "CITY"), FROM AND AGAINST ANY
AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION,
SUITS AND LIABILITY OF EVERY KIND, INCLUDING, BUT NOT
LIMITED TO, ALL EXPENSES OF LITIGATION, COURT COSTS,
AND ATTORNEYS' FEES, FOR INJURY TO OR DEATH OF ANY
PERSON, OR FOR ANY AND ALL DAMAGES ARISING OUT OF
OR IN CONNECTION WITH THE WORK PROVIDED BY THE
CONTRACTOR PURSUANT TO THIS AGREEMENT, THE
CONDUCT OR MANAGEMENT OF THE CONTRACTOR'S
BUSINESS OR ACTIVITIES, OR FROM ANY OTHER ACT OR
OMISSION BY THE CONTRACTOR, ITS AGENTS, AND
EMPLOYEES, WHEN PERFORMING WORK IN ACCORDANCE
WITH THIS AGREEMENT, WHERE SUCH INJURIES, DEATH OR
DAMAGES ARE CAUSED BY THE JOINT NEGLIGENCE OF THE
CITY AND ANY OTHER PERSON OR ENTITY AND/OR BY THE
JOINT OR SOLE NEGLIGENCE OF THE CONTRACTOR. IT IS
THE EXPRESSED INTENTION OF THE PARTIES HERETO,
BOTH THE CONTRACTOR AND THE CITY, THAT THE
INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS
INDEMNITY BY THE CONTRACTOR TO INDEMNIFY AND
PROTECT THE CITY, ITS OFFICERS, AGENTS AND
EMPLOYEES FROM THE CONSEQUENCES OF (I) THE CITY'S
OWN NEGLIGENCE, WHERE THAT NEGLIGENCE IS A
CONCURRING CAUSE OF THE RESULTING INJURY, DEATH
OR DAMAGE AND/OR (11) THE CONTRACTOR'S JOINT AND/OR
SOLE NEGLIGENCE. FURTHERMORE, THE INDEMNITY
PROVIDED FOR IN THIS PARAGRAPH SHALL HAVE NO
APPLICATION TO THE CITY FOR ANY CLAIM, LOSS,
DAMAGE, CAUSE OF ACTION, SUIT AND LIABILITY WHERE
THE INJURY, DEATH OR DAMAGE RESULTS FROM THE SOLE
NEGLIGENCE OF THE CITY, UNMIXED WITH THE FAULT OF
ANY OTHER PERSON OR ENTITY. IN THE EVENT THAT ANY
ACTION OR PROCEEDING IS BROUGHT AGAINST THE CITY
BY REASON OF ANY OF THE ABOVE, THE CONTRACTOR
FURTHER AGREES AND COVENANTS TO DEFEND THE
ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE
TO THE CITY.
The indemnity provided hereinabove shall survive the termination and/or expiration of
this Agreement.
By this Agreement, the City does not consent to litigation or suit, and the City
hereby expressly revokes any consent to litigation that it may have granted by the
terms of this Agreement or any other contract or agreement, any charter, or
applicable state law. Nothing herein shall be construed so as to limit or waive the
City's sovereign immunity. The. Contractor assumes_full. responsibility for .its -work
performed hereunder and hereby releases, relinquishes and discharges the City, its
officers, agents, and employees from all claims, demands, and causes' of actionof
every kind and character, including the cost of defense thereof, for any injury to or
death of any person (whether they be either of the parties hereto, their employees,
or other third parties) and any loss of or damage to property (whether the property
be that of either of the parties hereto, their employees, or other third parties) that is
caused by or alleged to be caused by, arising out of, or in connection with the
Contractor's work to be performed hereunder. This release shall apply with respect
to the Contractor's work regardless of whether said claims, demands, and causes of
action are covered in whole or in part by insurance.
2.03 Performance and Payment Bonds. The Contractor shall furnish separate performance and
payment bonds, each in the sum of one hundred percent (100%) of the total contract
price, in such forms as the City may approve and with sureties as the City may approve,
for this purpose, guaranteeing faithful payment to all persons supplying labor and
materials or furnishing any equipment in the execution of the Agreement. The cost of
such a bond shall be included in the Contractor's proposed price. The performance and
payment bonds shall remain in effect throughout the term of this Agreement and for a
period of one (1) year after the completion of the work and shall be extended for any
warranty work to cover the warranty period. If at any time during the execution of this
Agreement or in the required period thereafter, the bond or bonds become invalid or
ineffective for any reason, the Contractor shall promptly supply within ten (10) days such
other bond or bonds, which bond or bonds shall assure performance or payment as
required. Such replacement bond(s) shall be issued by a surety acceptable to the City.
ARTICLE III.
Miscellaneous Provisions
3.01 Force Majeure. Neither the City nor Contractor shall be required to perform any term,
condition or covenant of this Agreement while such performance is delayed or
interrupted by acts of God, material or labor restrictions by any governmental authority,
civil riot, flood, hurricanes or other natural disasters, any other cause not within the
control of the City or Contractor that by the exercise of due diligence the City or
Contractor is unable wholly or in part, to prevent or overcome and supersedes all prior
agreements and understandings between City and Contractor concerning the subject
matter of this Agreement. Any such delay in performance shall be excused only for the
same amount of time as the occurrence giving rise to the delay shall have lasted or such
period of time as is reasonably necessary after such occurrence abates for the effects
thereof to have dissipated as determined in the sole discretion of the City.
3.02 Entire Agreement. This Agreement constitutes the entire agreement between the City
and Contractor. No agreements, amendments, modifications, implied or otherwise, shall
be binding on any of the parties unless set forth in writing and signed by both parties.
3.03 Severability. If one or more of the provisions of this Agreement or the application of any
provision to any party or circumstance, is held invalid, unenforceable or illegal in any
respect, the remainder of this Agreement and the application : of the provision: to other
parties or circumstances shall remain valid and in full force and effect.
3.04 Notice. Any notice required to be given pursuant to the terms and provisions of this
Agreement shall be in writing and shall be mailed by certified or registered mail
addressed as set forth below or at such other address as may be specified by written
notice:
CONTRACTOR
Southwest Stainless, L.P., d/b/a/ Hughes Supply, Inc.
7022 Easthaven
Houston, TX 77017
FAX: 713-378-0429
CITY
City of Baytown
Attn: City Manager
P.O. Box 424
Baytown, TX 77522
FAX: 281-420-6586
3.05 Waiver. The waiver by either party of a breach of any provision of this Agreement shall
not constitute a waiver of any subsequent breach of this Agreement.
3.06 No Assignment. The Contractor shall not assign any interest in this Agreement and shall
not transfer any interest in the same without the prior written consent of the City thereto.
3.07 Binding Agreement. The City and Contractor each bind itself and its successors,
executors and administrators and assigns of such other parties, in respect to all covenants
of this Agreement. Nothing herein shall be construed as creating any personal liability on
the part of any officer, board member, commissioner, employee or agent of the City.
3.08 Progress Reports. The Contractor at such times and in such forms as the City may
require, shall furnish the City such periodic reports as it may request pertaining to the
work or services undertaken pursuant to this Agreement.
3.09 Venue and Choice of Law. This Agreement is performed in Harris County, Texas, and is
subject to all applicable Federal and State laws, statutes, codes, and any applicable
permits, ordinances, rules, orders and regulations of any local, state or federal
government authority having or asserting jurisdiction.
3.10 Authority. The officers executing this Agreement on behalf of theparties_ hereby confirm
that such officers have full authority to execute this Agreement and to bind the party
he/she represents.
IN WITNESS HEREOF, the parties have executed this agreement in duplicate originals
at Baytown, Harris County, Texas.
CITY OF BAYTOWN
GARY JAC ON, City Manager
ATTEST:
CirutultSChnaL
GARY W. SMITH, City Clerk
APPROVED AS TO FORM:
ACIO RAMIREZ, City Attorney
SOUTHWEST STAINLESS, L.P.,
D/B/A HUGHES SUPPLY
Signature
Vl' OP
Printed Name
Mere e-M, Mi A-lc2
Title
STATE OF TEXAS §
COUNTY OF HARRIS §
Before me, -tea. the undersigned notary public, on this day
personally appeared �[_c _. iNV_a.c(e.ayi , the c ..e `^ of Southwest
Stainless, L.P., d/b/a Hughes Supply on behalf of such company
known to me;
proved to me on the oath of ; or
proved to me through his/her current eacaS 1ZiYuOA I ka.wes_--
{description of identification card or other document issued by the federal
government or any state government that contains the photograph and signature of
the acknowledging person}
(check one)
to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me
that he/she executed that instrument for the purposes and consideration therein expressed.
Given under my hand and seal of office this ,2.9-461 day of )q- e o , 2004.
4te
Notary Pub is in and for the State of
Texas
My commission expires:
ZOOM
ALPANA V. PATEL
Nd1AlI NECK STATE OF TEXAS
COU/1SitOE :EXPIRES:
AUGUST 20, 2007
\\BdcZlitigation\Karen\Files\Contracts\Water Meter Change -Out & Supply Agreement\SUPPLEMENTAL AGREEMENTAmended.doc
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ACORD,,, CERTIFICATE OF LIABILITY INSURANCE page 1 of 3
PRODUCER
INSURED
Willie North America, Inc.
26 Century Blvd.
E. O. Boa 30519
Nashville, TN 37230-5191
Hughes Supply, Inc.
Corporate O£fiee
One Hughes Way
Orlando, FL 32805-2232
877-945-7378
DATE
02/08/2005
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR
ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
NAIL#
INSURERS AFFORDING COVERAGE
INSIIRFRA Zurich American Insurance Company
INSURER B:National Union Fire Insurance Company of
INSURER C:
INSURER D:
INSURER E
COVERAGES
THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FORTHE POLI
ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHI
POLICIES AGGREGINSURANCE
E LIMITS SHOWON MAY HAVE BEEN REDUCDESCRIBEDPAIHEREIN ppS��UB77J��ECT TO ALL THE TERN
D LI EfMFF D1YYE
INS
LTR
A
A
A
3
IN L
S
4
TYPE OF INS URANCE
GENERAL LIABILITY
X COMMERCIAL GENERALUABILffY
CLAIMSMADE OCCUR
GENt AGGREGATE LIMIT APPLIES PER:
wuarI LIR I 1LT:
AUTOMOBILE UABI UTY
X ANY AUTO
_ ALLOWNEDAUTOS
_ SCHEDULEDAUTDS
X HIRED AUTOS
X NON -OWNED AUTOS
X Comp/Collision
X Self —Insured
GARAGE LIABILITY
ANYAUTO
EXCESS LIABILITY
1,7 OCCUR CLAIMS MADE
DEDUCTIBLE
X RETENTION 3 10,000
POLICY NUMBER
GL0293887201
All Other BAp29388680
VA SAP293886901
TX TAP293887001
A
WORKERS COMPENSATION AND
EMPLOYERS' LIABILTIY
OFFFFIR/MEMBERXLDED? PROPRIETOR/PARTNER/EXECUTIVE
Ilyyes Jesurit,uteer
SPECIAL PROVISIONS :wlwu
OTHER
2860 691
WC29388 6701
5/31/2004
3/31/2004
5/31/2004
5/31/2004
5/31/2004
5/31/2004
POLICY
(MM/DDnY1N
5/31/2005
5/31/2005
5/31/2005
5/31/2005
5/31/2005
5/31/2005
DESCRIPTION OF OPERATIONSILOCATIONSNEHICLESIEXCLUSIONS ADDED BY ENDORS EMENT SPECIAL PROVISIONS
THIS VOIDS AND REPLACES PREVIOUSLY ISSUED CERTIFICATE DATED: 1/25/200
Branch #7735, Easthaven W & S.
City of a Baits ytown, contract
ts and ployeee are an additional
liability ererequiredby written
CERTIFICATE HOLDER
City of Baytown
Attn: Travis Doughty A RREOREPRESENTAI
Bayt Baytown,
Market P1752- 1! )(
Baytown, TX 77520 aYr.J�i
ACORD 25 (2001/05) Co11:1213100 Tp1:264757 Cart:5450163
® ACO RD CO RPORATION 1988
27E55-001
19445-001
CY PERIOD INDICATED. NOTWITHSTANDING
CH THIS CERTIFICATE MAY BE ISSUED OR
IS, EXCLUSIONS AND CONDITIONS OF SUCH
LIMITS
EAAqCCMHOCCURRENGE
$ 1,500,000
PREA1ISESOIEEoNci nce)
$ 250,000
MED EXP (Any um person)
$ 5,000 .
PERSONALSADVINJURY
$ 1, 500, 000
GENERAL AGGREGATE
PRODUCTS - COMP/OP AGO
$ 1,500,000
$ 1,500, 000
COMBINED SINGLE LIMIT
(Ea nccidontl
$ 1,000,000
BODILYINJun/
(Perporaon)
$
BODILY INJURY
(Persoidenl)
S
PROPERTY DAMAGE
(Per awidenI)
$
AUTOONLY - EA ACCIDENT
$
EA ACC
$
OTHER THAN
AUTOONLY: AGG
$
EACHOCCURRENCE
AGGREGATE
$ 5,000,000
$ 5,000,000
$
$
$
WC STATU- OTH-
X TORY LIMITS_I ER
EL EACH ACCIDENT
$ 1,000,000
ELDISEASE- EA EMPLOYEE
$ 1, 000,000
E.LDISEASE- POLICYLIMIT
__ $ 1.000.000
5 WITH ID: 5388888
insured with respects
CANCELLATION
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BECANCELLED BEFORETHEEXPIRATION
DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN
NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO D0 SO SHALL
IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR
REPRESENTATIVES.
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2/8/2005 1;41 PAGE 3/4 RightFax
111ft(1
PRODUCER
INSURED
15
CERTIFICATE OF LIABILITY INSURANCE Page 2 of 3
Willie North America, Inc.
26 Century Blvd.
P. O. Box 3051937230-5191
Nashville, TN
Hughes Supply, Inc.
Corporate office
One Hughes Way
Orlando, FL 32805-2232
277-945-7378
DATE
02/08/2005
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
OR
ALLTERRT. THIS CERTIFICATE DOES NOT HE COVERAGE AFFORDED BY THE POLICIES BEDLOW.
INSURERS AFFORDING COVERAGE NAIC#
21855-001
INSIIRFRA• Zurich American Insurance Co"` of 19445-001
INSURER B: National Onion Fire Insurance Cam
INSURER C:
INSURER D:
INSURER E:
DESCRIPTION OF OP ERAT7 DNS/LOCATION6NEHICLEEIEXCLU6I ONE A DDED BY ENDORS EMFNI/SPECIAL PROVISIONS
Such insurance shall be primary and non contributory to any other insurance that may be -available
to the additional insured.
It is understood and agreed that the eompanyafeclits under ofeht of subrogasion oomagainst City of
Baytown which may arise by reason of a payment
Co11:1213100 Tp1:264757 Cert:5450163
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r
2/8/2005 1;41 PAGE 4/4 RightF'ax
Page 3 of 3
IMPORTANT
If the certificate holder is an ADDITIONAL_ INSURED, the policy(ies) must be endorsed. A statement
on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).
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).
DISCLAIMER
n
The Certificate of Insurance on the reverse or of this forrn does not constitute a contract and the certificate holder, nordoesit
the issuing insurer(s), authorized representativeproducer,policies listed thereon.
affirmatively or negatively amend, extend or alter the coverage afforded by the
ACORD25(2001/00) Co11:1213100 Tp1:264757 Cert:5450163
BAYTOWN
City of Baytown
February 15, 2005
Southwest Stainless, L.P.
Dba Hughes Supply, Inc.
Attn: Ian Macleod
7022 Easthaven
Houston, Texas 77017
Ref City of Baytown Ordinance No. 9977
Dear Mssrs. Macleod and Eisen:
City of Pearland
attn: Mr. Bill Eisen
3519 Liberty Drive
Pearland, Texas 77581
Please find enclosed Certification on the above noted Ordinance, which was passed and
adopted by City Council for the City of Baytown on January 13, 2005. Further, note that
this ordinance pertains to the Interlocal Agreement for the Water Meter Change -Out and
Retrofit Program, new Water Meter Supply Contract, and Supplemental Agreement
concerning the Water Meter Change -Out and Retrofit Program and New Meter Supply
Contract.
Thanking you in advance for this
Southwest Stainless, L.P. and the
continued working relationship between City of Pearland,
City of Baytown
If our offices can be of assistance
not hesitate in giving us a call.
Sincerely,
Sylvia Aguilar, Admin. Asst.
City Clerk's Office
Enclosures
xc: Legal Dept.w/enc.
Finance Director w/enc.
Utility Billing w/enc.
to you during the working phase of this Agreement, do
2401Market Street P.O. Box 424 Baytown, Texas 77522-0424 (281)422-8281 Fax (281)420-6586 baytown@baytown.org
CERTIFICATION
I, GARY W. SMITH, the duly appointed and acting City Clerk of the City of Baytown,
Harris County, Texas, do hereby certify and attest that as part of my duties, I do supervise
and act as lawful custodian of the records of the City of Baytown; that the attached document
is a true and correct copy of Ordinance No. 9977
ORDINANCE NO. 9977
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, AUTHORIZING AN INTERLOCAL AGREEMENT WITH THE CITY OF
PEARLAND, TEXAS, FOR A UNIT PRICE SERVICE CONTRACT FOR A
WATER METER CHANGE -OUT AND RETROFIT PROGRAM AND NEW
METER SUPPLY CONTRACT; AUTHORIZING A SUPPLEMENTAL
AGREEMENT WITH SOUTHWEST STAINLESS, L.P., D/B/A HUGHES
SUPPLY CONCERNING THE SAME; AUTHORIZING PAYMENT BY THE
CITY OF BAYTOWN OF AN AMOUNT OF FIVE MILLION ONE HUNDRED
THOUSAND AND NO/100 DOLLARS ($5,100,000.00); MAKING OTHER
PROVISIONS RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE
DATE THEREOF.
Adopted by the City Council at its meeting held on January 13, 2005.
WITNESS MY HAND AND SEAL of the City on February 15, 2005.
ttehnitu
G�1M. Smith, CityClerk'
rY
ORDINANCE NO. 9977
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, AUTHORIZING AN INTERLOCAL AGREEMENT WITH THE CITY
OF PEARLAND, TEXAS, FOR A UNIT PRICE SERVICE CONTRACT FOR A
WATER METER CHANGE -OUT AND RETROFIT PROGRAM AND NEW
METER SUPPLY CONTRACT; AUTHORIZING A SUPPLEMENTAL
AGREEMENT WITH SOUTHWEST STAINLESS, L.P., D/B/A HUGHES
SUPPLY CONCERNING THE SAME; AUTHORIZING PAYMENT BY THE
CITY OF BAYTOWN OF AN AMOUNT OF FIVE MILLION ONE HUNDRED
THOUSAND AND NO/100 DOLLARS ($5,100,000.00); MAKING OTHER
PROVISIONS RELATED THERETO;AND PROVIDING FOR THE
EFFECTIVE DATE THEREOF.
******************************************************************************
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes
and directs the City Manager to execute and the City Clerk to attest to an interlocal agreement
with the City of Pearland, Texas, for a unit price service contract for a water meter. change -out
and retrofit program and new meter supply contract. A copy of the agreement is attached hereto
as Exhibit "A" and made a part hereof for all intents and purposes.
Section 2: That the City Council of the City of Baytown, Texas, hereby authorizes
and directs the City Manager to execute and the City Clerk to attest to a Supplemental
Agreement with Southwest Stainless, L.P., d/b/a Hughes Supply for a unit price service contract
for a water meter change -out and retrofit program and new meter supply contract. A copy of the
agreement is attached hereto as Exhibit "B" and made a part hereof for all intents and purposes.
Section 3: That the City Council of the City of Baytown authorizes payment to
Southwest Stainless, L.P., d/b/a Hughes Supply in an amount of FIVE MILLION ONE
HUNDRED THOUSAND AND NO/100 DOLLARS ($5,100,000.00) in accordance with the
Interlocal Agreement and Supplemental Agreement authorized herein.
Section 4: That in addition to the amount specified in Section 3 hereof, the City
Manager is hereby granted general authority to approve a decrease or an increase in costs by
TWENTY-FIVE THOUSAND AND NO/100 DOLLARS ($25,000.00) or less, provided that the
amount authorized in Section 3 hereof may not be increased by more than twenty-five percent
(25%).
Section 5: This ordinance shall take effect immediately from and after its passage by
the City Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the
City of Baytown this the 13th day of January, 2005.
CALVIN MUNDINGER, May
ATTEST:
idliiVeci
G Y: J. SMITH, City Clerk
APPROVED AS TO FORM:
GNACIO RAMIREZ, SR ity Attorney
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