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18-R-23 - Landscape Maintenance of Medians, Parkways, and Public GroundsRESOLUTION NO. 18 -R -23 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING EXPENDITURES TOTALING NO MORE THAN $131,500 FOR ONE FISCAL YEAR, AND $263,000 CUMULATIVELY OVER THE TWO YEAR CONTRACT TERM, FOR LANDSCAPE MAINTENANCE OF MEDIANS, PARKWAYS, AND PUBLIC GROUNDS. WHEREAS, the City staff of the City of Schertz (the "City ") has determined that the City requires landscape maintenance of medians, parkways, and public grounds; and WHEREAS, City staff performed an extensive Request for Proposals process that ranked companies based on experience and references, equipment and resources, cost proposal, and operational plans; and WHEREAS, City staff has determined that Maldonado Nursery and Landscaping and ACE CO. are qualified to provide such services for the City ; and WHEREAS, the City of Schertz will enter into a two (2) year agreement with three (3) one -year extensions available attached hereto as Exhibit A and Exhibit B (the "Agreement "). BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS lI" Section 1. The City Council hereby authorizes the City Manager to execute and deliver the Agreement with Maldonado Nursery and Landscaping, in substantially the form set forth on Exhibit A, totaling no more than $83,500 for one fiscal year, and $167,000 cumulatively over the two year term, for landscape maintenance of medians, parkways, and public grounds. Section 2. The City Council hereby authorizes the City Manager to execute and deliver the Agreement with ACE CO., in substantially the form set forth on Exhibit B, totaling no more than $48,000 for one fiscal year, and $96,000 cumulatively over the two year term, for landscape maintenance of medians, parkways, and public grounds. Section 3. The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a part of the judgment and findings of the City Council. Section 4. All resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution shall be and remain controlling as to the matters resolved herein. Section 5. This Resolution shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. Section 6. If any provision of this Resolution or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Resolution and the application of such provision to other persons and circumstances shall nevertheless be valid, and the City Council hereby declares that this Resolution would have been enacted without such invalid provision. Section 7. It is officially found, determined, and declared that the meeting at which this Resolution is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Resolution, was given, all as required by Chapter 551, Texas Government Code, as amended. Section 8. This Resolution shall be in force and effect from and after its final passage, and it is so resolved. PASSED AND ADOPTED, this 27th day of February, 2018. CITY OF SH;IR%I Z, TEXAS Mfehael R. Carpenter, Mayor ATTEST- Brenda Dennis, City Secretary (CITY SEAL) EXHIBIT A CONTRACT WITH MALDONADO NURSERY AND LANDSCAPING 50234811.1 A -1 EXHIBIT B CONTRACT WITH ACE CO. 50234811.1 A -2 CITY OF SC HERTZ THE STATE OF TEXAS GUADALUPE COUNTY This Service Agreement ( "Agreement ") is made and entered by and between the City of Schertz, Texas, (the "City ") a Texas municipality, and Maldonado Nursery and Landscaping( "Contractor "). Section 1. Duration This Agreement shall become effective upon the date of the final signature affixed hereto and shall remain in effect until satisfactory completion of the Scope of Work unless terminated as provided for in this Agreement. Section 2. Scope of Work (A) Contractor shall perform the Work as more particularly described in the Scope of Work attached hereto as Exhibit "A ". The work as described in the Scope of Work constitutes the "Project ". (B) The Quality of Work provided under this Agreement shall be of the level of quality performed by Contractors regularly rendering this type of service. (C) The Contractor shall perform its Work for the Project in compliance with all statutory, regulatory and contractual requirements now or hereafter in effect as may be applicable to the rights and obligations set forth in the Agreement. (D) The Contractor may rely upon the accuracy of reports and surveys provided to it by the City except when defects should have been apparent to a reasonably competent Contractor or when it has actual notice of any defects in the reports and surveys. Section 3. Compensation (A) The Contractor shall be paid in the manner set forth in Exhibit "A" and as provided herein. (B) Billing Period. The Contractor may submit an invoice for payment upon completion of the described tasks. Subject to Chapter 2251, Texas Government Code (the "Prompt Payment Act "), payment is due within thirty (30) days of the City's receipt of the Contractor's invoice. Interest on overdue payments shall be calculated in accordance with the Prompt Payment Act. (C) Reimbursable Expenses. Any and all reimbursable expenses, if any, related to the Project shall be included in the scope of Work (Exhibit A) and accounted for in the total contract amount. CITY OF SCHERTZ PAGE 1 Maldonado Nursery and Landscaping Service Agreement (D) Not to Exceed Contract Amount. Expenditures for this contract shall not exceed EIGHTY - THREE THOUSAND FIVE HUNDRED AND NO /100 DOLLARS ($83,500.00) per fiscal year. (E) Payments Subject to Future Appropriation. This Agreement shall not be construed as a commitment, issue, pledge or obligation of any specific taxes or tax revenues for payment to Contractor. (1) All payments or expenditures made by the City under this Agreement are subject to the City's appropriation of funds for such payments or expenditures to be paid in the budget year for which they are made. (2) The payments to be made to Contractor, or other expenditures under this Agreement, if paid, shall be made solely from annual appropriations of the City as may be legally set aside for the implementation of Article III, Section 52 -a of the Texas Constitution or Chapter 3 80 of the Texas Local Government Code or any other economic development or financing program authorized by statute or home rule powers of the City under applicable Texas law, subject to any applicable limitations or procedural requirements. (3) In the event the City does not appropriate funds in any fiscal year for payments due or expenditures under this Agreement, the City shall not be liable to Contractor for such payments or expenditures unless and until appropriation of said funds is made; provided, however, that Contractor, in its sole discretion, shall have the right but not the obligation to terminate this Agreement and shall have no obligations under this Agreement for the year in respect to which said unappropriated funds relate. (4) To the extent there is a conflict of this Section and any other language or covenants in this Agreement, this Section 3 shall control. Section 4. Time of Completion The prompt completion of the Work under the Scope of Work relates is critical to the City. Unnecessary delays in providing Work under a Scope of Work shall be grounds for dismissal of the Contractor and termination of this Agreement without any or further liability to the City other than a prorated payment for necessary, timely, and conforming work done by Contractor prior to the time of termination. Section 5. Insurance Before commencing work under this Agreement, Contractor shall obtain and maintain the liability insurance provided for below throughout the term of the Project plus an additional two years. Contractor shall provide evidence of such insurance to the City. Such documentation shall meet the requirements noted in Exhibit B. Contractor shall maintain the following limits and types of insurance: Workers Compensation Insurance: Contractor shall carry and maintain during the term of this Agreement, workers compensation and employers liability insurance meeting the requirements of the State of Texas on all the Contractor's employees carrying out the work involved in this contract. CITY OF SCHERTZ PAGE 2 Maldonado Nursery and Landscaping Service Agreement General Liability Insurance: Contractor shall carry and maintain during the term of this Agreement, general liability insurance on a per occurrence basis with limits of liability not less than $1,000,000 for each occurrence and for fire damage. For Bodily Injury and Property Damage, coverage shall be no less than $1,000,000. As a minimum, coverage for Premises, Operations, Products and Completed Operations shall be $2,000,000. This coverage shall protect the public or any person from injury or property damages sustained by reason of the Contractor or its employees carrying out the work involved in this Agreement. The general aggregate shall be no less than $2,000,000. Automobile Liability Insurance: Contractor shall carry and maintain during the term of this Agreement, automobile liability insurance with either a combined limit of at least $1,000,000 per occurrence for bodily injury and property damage or split limits of at least $1,000,000 for bodily injury per person per occurrence and $1,000,000 for property damage per occurrence. Coverage shall include all owned, hired, and non -owned motor vehicles used in the performance of this contract by the Contractor or its employees. Subcontractor: In the case of any work sublet, the Contractor shall require subcontractor and independent contractors working under the direction of either the Contractor or a subcontractor to carry and maintain the same workers compensation and liability insurance required of the Contractor. Qualifying Insurance: The insurance required by this Agreement shall be written by non - assessable insurance company licensed to do business in the State of Texas and currently rated "B +" or better by the A.M. Best Companies. All policies shall be written on a "per occurrence basis" and not a "claims made" form. Evidence of such insurance shall be attached as Exhibit "C ". Failure of Certificate Holder to demand a certificate or other evidence of full compliance with these insurance requirements or failure of Certificate Holder to identify a deficiency from evidence that is provided will not be construed as a waiver of Insured's obligation to maintain such insurance. Section 6. Miscellaneous Provisions (A) Subletting. The Contractor shall not sublet or transfer any portion of the work under this Agreement or any Scope of Work issued pursuant to this Agreement unless specifically approved in writing by the City, which approval shall not be unreasonably withheld. Subcontractors shall comply with all provisions of this Agreement and the applicable Scope of Work. The approval or acquiescence of the City in the subletting of any work shall not relieve the Contractor of any responsibility for work done by such subcontractor. (B) Compliance with Laws. The Contractor shall comply with all federal, state and local laws, statutes, ordinances, rules and regulations, and the orders and decrees of any courts, administrative, or regulatory bodies in any matter affecting the performance of this Agreement, including, without limitation, worker's compensation laws, minimum and maximum salary and wage statutes and regulations, and licensing laws and regulations. When required, the Contractor shall furnish the City with satisfactory proof of compliance. (C) Independent Contractor. Contractor acknowledges that Contractor is an independent contractor of the City and is not an employee, agent, official or representative of the City. CITY OF SCHERTZ PAGE 3 Maldonado Nursery and Landscaping Service Agreement Contractor shall not represent, either expressly or through implication, that Contractor is an employee, agent, official or representative of the City. Income taxes, self - employment taxes, social security taxes and the like are the sole responsibility of the Contractor. (D) Non - Collusion. Contractor represents and warrants that Contractor has not given, made, promised or paid, nor offered to give, make, promise or pay any gift, bonus, commission, money or other consideration to any person as an inducement to or in order to obtain the work to be provided to the City under this Agreement. Contractor further agrees that Contractor shall not accept any gift, bonus, commission, money, or other consideration from any person (other than from the City pursuant to this Agreement) for any of the Work performed by Contractor under or related to this Agreement. If any such gift, bonus, commission, money, or other consideration is received by or offered to Contractor, Contractor shall immediately report that fact to the City and, at the sole option of the City, the City may elect to accept the consideration for itself or to take the value of such consideration as a credit against the compensation otherwise owing to Contractor under or pursuant to this Agreement. (E) Force Majeure. If the performance of any covenant or obligation to be performed hereunder by any party is delayed as a result of circumstances which are beyond the reasonable control of such party (which circumstances may include, without limitation, pending litigation, acts of God, war, acts of civil disobedience, fire or other casualty, shortage of materials, adverse weather conditions [such as, by way of illustration and not of limitation, severe rain storms or below freezing temperatures, or tornados] labor action, strikes or similar acts, moratoriums or regulations or actions by governmental authorities), the time for such performance shall be extended by the amount of time of such delay, but no longer than the amount of time reasonably occasioned by the delay. The party claiming delay of performance as a result of any of the foregoing force majeure events shall deliver written notice of the commencement of any such delay resulting from such force majeure event not later than seven (7) days after the claiming party becomes aware of the same, and if the claiming party fails to so notify the other party of the occurrence of a force majeure event causing such delay and the other party shall not otherwise be aware of such force majeure event, the claiming parry shall not be entitled to avail itself of the provisions for the extension of performance contained in this subsection. (F) Conflict of Terms. Scope of work: In the case of any conflicts between the terms of this Agreement within the Scope of Work, this Agreement shall govern. The Scope of Work is intended to detail the technical scope of Work, fee schedule, and contract time only and shall not dictate Agreement terms. Other Agreements between parties: In the case of any conflicts between the terms of this Agreement and wording contained within any other attachment, amendment, and agreement executed between the parties in conjunction with this Agreement, this Agreement shall govern. CITY OF SCHERTZ PAGE 4 Maldonado Nursery and Landscaping Service Agreement (G) Non - Boycott of Israel. The City of Schertz may not enter into a contract with a company for goods and services unless the contract contains a written verification from the company that; (i) it does not Boycott Israel; and (ii) will not Boycott Israel during the term of the contract. (Texas Government Code chapter 2270) by accepting this purchase order, the vendor (Professional or other applicable term defining the contracting party) verifies that it does not Boycott Israel, and agrees that during the term of this agreement (contract as applicable) will not Boycott Israel as that term is defined in the Texas Government Code Section 808.001, as amended. Relevant definitions from the bill: "Company" means a for - profit sole proprietorship, organization, association, corporation, partnership, joint venture, limited partnership, limited liability partnership, or limited liability company, including a wholly owned subsidiary, majority -owned subsidiary, parent company, or affiliate of those entities or business associations that exists to make a profit. "Boycott Israel" means refusing to deal with, terminating business activities with, or otherwise taking any action that is intended to penalize, inflict economic harm on, or limit commercial relations specifically with Israel, or with a person or entity doing business in Israel or in an Israeli - controlled territory, but does not include an action made for ordinary business purposes. Section 7. Termination (A) This Agreement may be terminated: (1) By the mutual agreement and consent of both Contractor and City; (2) By either party, upon the failure of the other party to fulfill its obligations as set forth in either this Agreement or a Scope of Work issued under this Agreement; (3) By the City, immediately upon notice in writing to the Contractor, as consequence of the failure of Contractor to perform the Work contemplated by this Agreement in a timely or satisfactory manner; (4) By the City, at will and without cause upon not less than five (5) days written notice to the Contractor. (B) If the City terminates this Agreement pursuant to subsection 7(A)(2) or (3), above, the Contractor shall not be entitled to any fees or reimbursable expenses other than the fees and reimbursable expenses then due and payable as of the time of termination and only then for those Work that have been timely and adequately performed by the Contractor considering the actual costs incurred by the Contractor in performing work to date of termination, the value of the work that is nonetheless usable to the City, the cost to the City of employing another Contractor to complete the work required and the time required to do so, and other factors that affect the value to the City of the work performed at time of termination. In the CITY OF SCHERTZ PAGE 5 Maldonado Nursery and Landscaping Service Agreement event of termination not the fault of the Contractor, the Contractor shall be compensated for all basic, special, and additional Work actually performed prior to termination, together with any reimbursable expenses then due. Section 8. Indemnification CONTRACTOR AGREES TO INDEMNIFY AND HOLD THE CITY OF SCHERTZ, TEXAS AND ALL OF ITS PRESENT, FUTURE AND FORMER AGENTS, EMPLOYEES, OFFICIALS AND REPRESENTATIVES HARMLESS IN THEIR OFFICIAL, INDIVIDUAL AND REPRESENTATIVE CAPACITIES FROM ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, JUDGME NTS, LIENS AND EXPENSES (INCLUDING ATTORNEY'S FEES, WHETHER CONTRACTUAL OR STATUTORY), COSTS AND DAMAGES (WHETHER COMMON LAW OR STATUTORY), COSTS AND DAMAGES (WHETHER COMMON LAW OR STATUTORY, AND WHETHER ACTUAL, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL), OF ANY CONCEIVABLE CHARACTER, FOR INJURIES TO PERSONS (INCLUDING DEATH) OR TO PROPERTY (BOTH REAL AND PERSONAL) CREATED BY, ARISING FROM OR IN ANY MANNER RELATING TO THE WORK OR GOODS PERFORMED OR PROVIDED BY CONTRACTOR — EXPRESSLY INCLUDING THOSE ARISING THROUGH STRICT LIABILITY OR UNDER THE CONSTITUTIONS OF THE UNITED STATES. Section 9. Notices Any notice required or desired to be given from one party to the other party to this Agreement shall be in writing and shall be given and shall be deemed to have been served and received (whether actually received or not) if (i) delivered in person to the address set forth below; (ii) deposited in an official depository under the regular care and custody of the United States Postal Service located within the confines of the United States of America and sent by certified mail, return receipt requested, and addressed to such party at the address hereinafter specified; or (iii) delivered to such party by courier receipted delivery. Either party may designate another address within the confines of the continental United States of America for notice, but until written notice of such change is actually received by the other party, the last address of such party designated for notice shall remain such party's address for notice. Section 10. No Assignment Neither party shall have the right to assign that party's interest in this Agreement without the prior written consent of the other party. Section 11. Severability If any term or provision of this Agreement is held to be illegal, invalid or unenforceable, the legality, validity or enforceability of the remaining terms or provisions of this Agreement shall not be affected thereby, and in lieu of each such illegal, invalid or unenforceable term or provision, there shall be added automatically to this Agreement a legal, valid or enforceable term or provision as similar as possible to the term or provision declared illegal, invalid or unenforceable. Section 12. Waiver Either City or the Contractor shall have the right to waive any requirement contained in this Agreement that is intended for the waiving party's benefit, but, except as otherwise provided herein, such waiver shall be effective only if in writing executed by the party for whose benefit such requirement is intended. No waiver of any breach or violation of any term of this Agreement shall be deemed or construed to constitute a waiver of any other breach or violation, whether concurrent or subsequent, and whether of the same or of a different type of breach or violation. CITY OF SCHERTZ PAGE 6 Maldonado Nursery and Landscaping Service Agreement Section 13. Governing Law; Venue This Agreement and all of the transactions contemplated herein shall be governed by and construed in accordance with the laws of the State of Texas. The provisions and obligations of this Agreement are performable in Guadalupe County, Texas such that exclusive venue for any action arising out of this Agreement shall be in Guadalupe County, Texas. Section 14. Paragraph Headings, Construction The paragraph headings contained in this Agreement are for convenience only and shall in no way enlarge or limit the scope or meaning of the various and several paragraphs hereof. Both parties have participated in the negotiation and preparation of this Agreement and this Agreement shall not be construed either more or less strongly against or for either party. Section 15. Binding Effect Except as limited herein, the terms and provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, devisees, personal and legal representatives, successors and assigns. Section 16. Gender Within this Agreement, words of any gender shall be held and construed to include any other gender, and words in the singular number shall be held and construed to include the plural, unless the context otherwise requires. Section 17. Counterparts This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all of which shall constitute but one and the same instrument. Section 18. Exhibits & Attachments All exhibits and attachments to this Agreement are incorporated herein by reference for all purposes wherever reference is made to the same. Section 19. Entire Agreement It is understood and agreed that this Agreement contains the entire agreement between the parties and supersedes any and all prior agreements, arrangements or understandings between the parties relating to the subject matter. No oral understandings, statements, promises or inducements contrary to the terms of this Agreement exist. This Agreement cannot be changed or terminated orally. Section 20. Relationship of Parties Nothing contained in this Agreement shall be deemed or construed by the parties hereto or by any third party to create the relationship of principal and agent or of partnership or of joint venture or of any association whatsoever between the parties, it being expressly understood and agreed that no provision contained in this Agreement nor any act or acts of the parties hereto shall be deemed to create any relationship between the parties other than the relationship of independent parties contracting with each other solely for the purpose of effecting the provisions of this Agreement. CITY OF SCHERTZ PAGE 7 Maldonado Nursery and Landscaping Service Agreement Section 21. Right To Audit City shall have the right to examine and audit the books and records of Contractor with regards to the work described in Exhibit A, or any subsequent changes, at any reasonable time. Such books and records will be maintained in accordance with generally accepted principles of accounting and will be adequate to enable determination o£ (1) the substantiation and accuracy of any payments required to be made under this Agreement; and (2) compliance with the provisions of this Agreement. Section 22. Dispute Resolution In accordance with the provisions of Subchapter I, Chapter 271, TEx. LOCAL GOV'T CODE, the parties agree that, prior to instituting any lawsuit or other proceeding arising from a dispute under this agreement, the parties will first attempt to resolve the dispute by taking the following steps: (1) A written notice substantially describing the nature of the dispute shall be delivered by the dissatisfied party to the other party, which notice shall request a written response to be delivered to the dissatisfied party not less than 5 days after receipt of the notice of dispute. (2) If the response does not reasonably resolve the dispute, in the opinion of the dissatisfied party, the dissatisfied party shall give notice to that effect to the other parry whereupon each party shall appoint a person having authority over the activities of the respective parties who shall promptly meet, in person, in an effort to resolve the dispute. (3) If those persons cannot or do not resolve the dispute, then the parties shall each appoint a person from the highest tier of managerial responsibility within each respective party, who shall then promptly meet, in person, in an effort to resolve the dispute. Section 23. Disclosure of Business Relationships /Affiliations; Conflict of Interest Questionnaire Contractor represents that it is in compliance with the applicable filing and disclosure requirements of Chapter 176 of the Texas Local Government Code. Certificate of Interested Parties Effective January 1, 2016, pursuant to House Bill 1295 passed by the 84th Texas Legislature (Section 2252.908, Texas Government Code, as amended) and formal rules released by the Texas Ethics Commission (TEC), all contracts with private business entities requiring approval by the Schertz City Council will require the on -line completion of Form 1295 "Certificate of Interested Parties." Form 1295 is also required for any and all contract amendments, extensions or renewals. Contractors are required to complete and file electronically with the Texas Ethics Commission using the online filing application. Please visit the State of Texas Ethics Commission website, https:// www.ethics.state.tx.us /whatsnew /elf info form1295.htm and https://www.ethics.state.tx.us/tec/1295- Info.htm for more information. IF YOU HAVE ANY QUESTIONS ABOUT COMPLIANCE, PLEASE CONSULT YOUR OWN LEGAL COUNSEL. COMPLIANCE IS THE INDIVIDUAL RESPONSIBILITY OF EACH PERSON OR AGENT OF A PERSON WHO IS SUBJECT TO THE FILING REQUIREMENT. AN OFFENSE UNDER CHAPTER 176 IS A CLASS C MISDEMEANOR. [The remainder of this page is intentionally left blank.] CITY OF SCHERTZ PAGE 8 Maldonado Nursery and Landscaping Service Agreement EXECUTED on this the day of CITY: By: Name: Brian James Title: Acting City Manager ADDRESS FOR NOTICE: CITY: City of Schertz Attn: Brian James, Acting City Manager 1400 Schertz Parkway Schertz, Texas 78154 CITY OF SCHERTZ Maldonado Nursery and Landscaping Service Agreement , 2018. CONTRACTOR: By: Name: Title: CONTRACTOR: Maldonado Nursery and Landscaping 16348 Nacogdoches Rd. San Antonio, Texas 78247 210 -599 -1219 PAGE Exhibit "A" SCOPE OF WORK Proiect• Landscape Maintenance of Medians, Parkways and Public Grounds. Location Various City of Schertz owned properties as required. Scope of Work Includes but is not limited to the maintenance and grounds keeping Scope of Work detailed in RFP 17- PK -50 -A- 02 attached as Exhibit "D ". Initial Schedule and Work Requests City staff will issue a mowing season's initial schedule at the beginning of each contract period selecting locations and frequency of service. There are three scope of service groupings for this Agreement labeled within the RFP as 1, 2 and 3. Contractor agrees that City may issue any combination of the groupings with each initial schedule order. During the season, the City may request in writing additional services as required. This additional work shall be priced in accordance with the Compensation Schedule detailed in this Exhibit "A ". Additional work shall be performed by Contractor within two working days of the written request. Term of Service Agreement This Service Agreement shall automatically terminate September 30, 2019 unless extended by City Council Approval. Notwithstanding the foregoing, this contract shall be terminated if funds allocated for expenditure under this agreement are not available as provided for in sections 3 and 7. of this agreement. Extensions If agreed by the City and Contractor, this Agreement may be extended if approved by the City Council for a period of one year. A maximum of three (3) extensions may be made. Maximum Contract Expenditure Cumulative expenditures under this agreement shall not exceed $167,000.00 during its first two -year term. Maximum expenditures during each of the Schertz fiscal years shall not exceed $83,500.00 unless otherwise negotiated and approved by City Council. Fiscal year one is defined as October 1, 2017 through September 30, 2018. Fiscal year two is defined as October 1, 2018 through September 30, 2019. Fiscal year for the optional term period three is defined as October 1, 2019 through September 30, 2020. Fiscal year for the optional term period four is defined as October 1, 2020 through September 30, 2021. Fiscal year for the optional term period five is defined as October 1, 2021 through September 30, 2022. Order of Precedence in Agreement Documents Order of Precedence. In the case a specific deliverable or service is not clearly defined within this agreement or any documents relating to the Scope of Work of the Product and Services shall be resolved by giving precedence in the following order: (i) the terms and conditions of this Agreement (ii) a documented negotiated Scope of Work CITY OF SCHERTZ PAGE 10 Maldonado Nursery and Landscaping Service Agreement (iii) Exhibits and Attachments to this Agreement including but not limited to: a. This Exhibit "A ". b. Exhibit "B" REQUIREMENTS FOR ALL INSURANCE DOCUMENTS. c. Exhibit "C" Evidence of Insurance. d. Exhibit "D" The detailed Scope of Services from RFP 17- PK- 50 -A -02. (iv) Any documented Best and Final Offers from Contractor. (v) the Contractor's Proposal dated December 27th 2017. (vi) the Request for Proposals 17- PK- 50 -A -02. Compensation Schedule: (Price) Mowing, String Trimming, Curb Edging, Blowing & Litter Control per Cycle for Properties Shown in Attachment Al of RFP #17- PK- 50 -A -02: Location Compensation per Cycle Ashley Park $228.00 Cove Trail Drainage Lot $75.00 Cypress Point Park $472.00 Forest Ridge Park $850.00 Gutierrez Xerisca e Park $94.00 Heritage Oaks Park $589.00 Lone Oak Park $75.00 No Name Park $88.00 North Center $93.00 Oak Forest Park $116.00 Old Animal Control Building $78.00 Palm Park $107.00 Rhine Valley Park $225.00 The Park at Woodland Oaks $87.00 Wendy Swan Memorial Park $128.00 Cost per Acre for non - listed locations $44.95 Mowing, String Trimming, Curb Edging, Blowing, Litter Control, & Planting Bed Maintenance for Properties Shown in Attachment A2 of REP #17- PK- 50 -A -02: Hal Baldwin Municipal Complex $1,986.00 Schertz Public Library Complex $1,010.00 Fire Station #2 $114.00 Cost per Acre for non - listed locations $44.95 Mowing, String Trimming, Curb Edging, Blowing, Litter Control, & Planting Bed Maintenance for Properties Shown in Attachment A3 of RFP #17- PK- 50 -A -02: Location Compensation per Cycle Schertz Parkway (welcome sign, medians, sidewalks $485.00 Legacy Oaks Parkway $120.00 Country Club Drive $185.00 Per Mile Cost for non - listed locations $225.71 END EXHIBIT "A" CITY OF SCHERTZ PAGE 11 Maldonado Nursery and Landscaping Service Agreement Exhibit "B" REQUIREMENTS FOR ALL INSURANCE DOCUMENTS The Contractor shall comply with each and every condition contained herein. The Contractor shall provide and maintain the minimum insurance coverage set forth below during the term of its agreement with the City. Any Subcontractor(s) hired by the Contractor shall maintain insurance coverage equal to that required of the Contractor. It is the responsibility of the Contractor to assure compliance with this provision. The City of Schertz accepts no responsibility arising from the conduct, or lack of conduct, of the Subcontractor. INSTRUCTIONS FOR COMPLETION OF INSURANCE DOCUMENT With reference to the foregoing insurance requirements, Contractor shall specifically endorse applicable insurance policies as follows: 1. The City of Schertz shall be named as an additional insured with respect to General Liability and Automobile Liability on a separate endorsement. 2. A waiver of subrogation in favor of The City of Schertz shall be contained in the Workers Compensation and all liability policies and must be provided on a separate endorsement. 3. All insurance policies shall be endorsed to the effect that The City of Schertz will receive at least thirty (30) days written notice prior to cancellation or non - renewal of the insurance. 4. All insurance policies, which name The City of Schertz as an additional insured, must be endorsed to read as primary and non - contributory coverage regardless of the application of other insurance. 5. Chapter 1811 of the Texas Insurance Code, Senate Bill 425 82(R) of 2011, states that the above endorsements cannot be on the certificate of insurance. Separate endorsements must be provided for each of the above. 6. All insurance policies shall be endorsed to require the insurer to immediately notify The City of Schertz of any material change in the insurance coverage. 7. All liability policies shall contain no cross liability exclusions or insured versus insured restrictions. 8. Required limits may be satisfied by any combination of primary and umbrella liability insurances. 9. Contractor may maintain reasonable and customary deductibles, subject to approval by The City of Schertz. 10. Insurance must be purchased from insurers having a minimum AmBest rating of B +. 11. All insurance must be written on forms filed with and approved by the Texas Department of Insurance. (ACORD 25 2010/05). Coverage must be written on an occurrence form. 12. Contractual Liability must be maintained covering the Contractors obligations contained in the contract. Certificates of Insurance shall be prepared and executed by the insurance company or its authorized agent and shall contain provisions representing and warranting all endorsements and insurance coverages according to requirements and instructions contained herein. 13. Upon request, Contractor shall furnish The City of Schertz with certified copies of all insurance policies. 14. A valid certificate of insurance verifying each of the coverages required above shall be issued directly to the City of Schertz within ten (10) business days after contract award and prior to starting any work by the successful Contractor's insurance agent of record or insurance company. Also, prior to the start of any work and at the same time that the Certificate of Insurance is issued and sent to the City of Schertz, all required endorsements identified in sections A, B, C and D, above shall be sent to the City of Schertz. The certificate of insurance and endorsements shall be sent to: City of Schertz emailed to: purchasing(i�schertz.com Purchasing Department Faxed to: 210 - 619 -1169 1400 Schertz Parkway Schertz, TX 78154 CITY OF SCIIERTZ PAGE 12 Maldonado Nursery and Landscaping Service Agreement ,I, ` fIFICA T ', Ohs, LIABILITV INSURANCE '� � I�A� lftiilil]ttD f virs r:utif1'lomr, IU 18W6, A fdteVEHI OV 111VOI MATIMI DULY Atilt ColiVE119 no ftr1 RTV Wofl T119 CORYIpl003 1111LOUrL illy CJ= t1T111VATO BONG NOT AI FIRMA'tiI` ULY OR NU+3MWKY Aft m) LIi17F =1t10q ALTNr1 'FIIII 0siVlt0011' AFr=(fRDIIJl BY TIM POLIC111ll OHLOW, '11110 Ot'MIl'IOA7i3 ITI' INOUIIAIJCIi 11t�0 f1UT' ttt71191110Yt1 A GONJSi�R,'4OB BFsT%'VVtll 1110 I410VIRI(I (11SURUftt'&I, AI)TIIi?I IED I1111FRIMUtiTAUVIIl1ft PRODUCHR, 40711111 OURTIFIOATI! HOLDER. tofflis And toodfodlls of Itto ollc , coflaln Iw1IgIo? Wray fol olre on oodotnTolo I, A �1�letiloat 01) iltlo cerlilrtalo dos not oo fo 1101ool to 1110 IMPORTAtIi. 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MIGULI- M ON R rg WOULD ARY Of Tlrtt A 130Vtt Dlr"MD110 - Us I0$11t Ao@LF D Donne T1411 II}AT GAS T14BRIl F; Iioii9r, 8%LjF 01' DUL rAD Ill City f Schutz G) 1400 8-chgitz, f'w4 way C31�ANt Ut�Fil7Ii7 {Ufr Yl itRY1d�I1�� ohoita, U 70154 Autrordtoote°temselerAxrvo A'tttn' Porch'asi" 06pt S Atf Ifftlxi_raalalar�rflril3IEt 0108¢•201DAGoRtsWIlPtaAVIOW doh4a town od Mono 20 poiJttdt) Yho A001I13 rf imo and lop nto rEratatorad toniltrf of ACORD CITY OF SCHERTZ PAGE 13 Maldonado Nursery and Landscaping Service Agreement (Instructions for completing and submitting a certificate to the City of Schertz) Complete the certificate of insurance with the information listed below: A) Certificate of Insurance date B) Producer (Insurance Agency) Information — complete name, address, telephone information, & email address. C) Insured's (Insurance Policy Holder) Information — complete name & address information D) Insurer (name /names of insurance company) * *(Remember the city requires all insurance companies to be Authorized to do business in the State of Texas be rated by A.M. Best with a rating of B+ (or better) Class VI (or higher) or otherwise be acceptable to the City if not rated by A.M. Best) E) NAIC # (National Association of Insurance Commissioners, a # that is assigned by the State to all insurance companies) F) Insurer letter represents which insurance company provides which type of coverage from D G) General Liability Insurance Policy — must have an (x) in box. Also, "Occurrence" type policy — must have an (x) in the box (occurrence policy preferred but claims made policy can be accepted with special approval) H) This section shall be filled in with "Y" for yes under Additional Insured for all coverages, except for Contractor Liability and Workers' Compensation. There shall also be a "Y" for yes under all coverages for subrogation waived. I) Automobile Liability Insurance — must be checked for Any Auto, All Owned Autos, Hired Autos J) Umbrella Coverage — must be checked in this section and by occurrence whenever it is required by written contract and in accordance with the contract value. K) Worker's Compensation and Employers Liability Insurance — information must be completed in this section of the certificate of insurance form (if applicable). L) Builder's Risk Policy — for construction projects as designated by the City of Schertz. Professional Liability Coverage — for professional services if required by the City of Schertz. M) Insurance Policy #'s N) Insurance policy effective dates (always check for current dates) O) Insurance Policy limits (See Insurance Requirements Checklist) P) This section is to list projects, dates of projects, or location of project. Endorsements to the insurance policy(ies) must be provided separately and not in this section. The following endorsements are required by the City of Schertz. (1) Adding the City of Schertz as an additional insured. The "additional insured" endorsement is not required for professional liability and workers compensation insurance; and (2) Waiver of Subrogation (3) Primary and Non - Contributory (4) Cancellation Notice Q) City of Schertz's name and address information must be listed in this section R) Notice of cancellation, non - renewal, or material change to the insurance policy(ies) must be provided to the City of Schertz in accordance with a cancellation notice endorsement to the policy and /or per the policy provisions based on the endorsement adding the city as an additional insured. (Sec. 1811.155, Tex. Ins. Code) S) The certificate must be signed by the Authorized Agent in this section of the certificate form. CITY OF SCHERTZ PAGE 14 Maldonado Nursery and Landscaping Service Agreement Exhibit "C" EVIDENCE OF INSURANCE CITY OF SCHERTZ PAGE 15 Maldonado Nursery and Landscaping Service Agreement TY� D" M SERVICE AGREEMENT THE STATE OF TEXAS § GUADALUPE COUNTY § This Service Agreement ( "Agreement ") is made and entered by and between the City of Schertz, Texas, (the "City ") a Texas municipality, and ACE CO ( "Contractor "). Section 1. Duration This Agreement shall become effective upon the date of the final signature affixed hereto and shall remain in effect until satisfactory completion of the Scope of Work unless terminated as provided for in this Agreement. Section 2. Scope of Work (A) Contractor shall perform the Work as more particularly described in the Scope of Work attached hereto as Exhibit "A ". The work as described in the Scope of Work constitutes the "Project ". (B) The Quality of Work provided under this Agreement shall be of the level of quality performed by Contractors regularly rendering this type of service. (C) The Contractor shall perform its Work for the Project in compliance with all statutory, regulatory and contractual requirements now or hereafter in effect as may be applicable to the rights and obligations set forth in the Agreement. (D) The Contractor may rely upon the accuracy of reports and surveys provided to it by the City except when defects should have been apparent to a reasonably competent Contractor or when it has actual notice of any defects in the reports and surveys. Section 3. Compensation (A) The Contractor shall be paid in the manner set forth in Exhibit "A" and as provided herein. (B) Billing Period. The Contractor may submit an invoice for payment upon completion of the described tasks. Subject to Chapter 2251, Texas Government Code (the "Prompt Payment Act "), payment is due within thirty (30) days of the City's receipt of the Contractor's invoice. Interest on overdue payments shall be calculated in accordance with the Prompt Payment Act. (C) Reimbursable Expenses. Any and all reimbursable expenses, if any, related to the Project shall be included in the scope of Work (Exhibit A) and accounted for in the total contract amount. (D) Not to Exceed Contract Amount. Expenditures for this contract shall not exceed FORTY - EIGHT THOUSAND AND NO /100 DOLLARS ($48,000.00) per fiscal year. CITY OF SCHERTZ PAGE 1 ACE CO Service Agreement (E) Payments Subject to Future Appropriation. This Agreement shall not be construed as a commitment, issue, pledge or obligation of any specific taxes or tax revenues for payment to Contractor. (1) All payments or expenditures made by the City under this Agreement are subject to the City's appropriation of funds for such payments or expenditures to be paid in the budget year for which they are made. (2) The payments to be made to Contractor, or other expenditures under this Agreement, if paid, shall be made solely from annual appropriations of the City as may be legally set aside for the implementation of Article III, Section 52 -a of the Texas Constitution or Chapter 380 of the Texas Local Government Code or any other economic development or financing program authorized by statute or home rule powers of the City under applicable Texas law, subject to any applicable limitations or procedural requirements. (3) In the event the City does not appropriate funds in any fiscal year for payments due or expenditures under this Agreement, the City shall not be liable to Contractor for such payments or expenditures unless and until appropriation of said funds is made; provided, however, that Contractor, in its sole discretion, shall have the right but not the obligation to terminate this Agreement and shall have no obligations under this Agreement for the year in respect to which said unappropriated funds relate. (4) To the extent there is a conflict of this Section and any other language or covenants in this Agreement, this Section 3 shall control. Section 4. Time of Completion The prompt completion of the Work under the Scope of Work relates is critical to the City. Unnecessary delays in providing Work under a Scope of Work shall be grounds for dismissal of the Contractor and termination of this Agreement without any or further liability to the City other than a prorated payment for necessary, timely, and conforming work done by Contractor prior to the time of termination. Section 5. Insurance Before commencing work under this Agreement, Contractor shall obtain and maintain the liability insurance provided for below throughout the term of the Project plus an additional two years. Contractor shall provide evidence of such insurance to the City. Such documentation shall meet the requirements noted in Exhibit B. Contractor shall maintain the following limits and types of insurance: Workers Compensation Insurance: Contractor shall carry and maintain during the term of this Agreement, workers compensation and employers liability insurance meeting the requirements of the State of Texas on all the Contractor's employees carrying out the work involved in this contract. General Liability Insurance: Contractor shall carry and maintain during the term of this Agreement, general liability insurance on a per occurrence basis with limits of liability not less than $1,000,000 for each occurrence and for fire damage. For Bodily Injury and Property Damage, coverage shall be no less than $1,000,000. As a minimum, coverage for Premises, Operations, CITY OF SCHERTZ PAGE 2 ACE CO Service Agreement Products and Completed Operations shall be $2,000,000. This coverage shall protect the public or any person from injury or property damages sustained by reason of the Contractor or its employees carrying out the work involved in this Agreement. The general aggregate shall be no less than $2,000,000. Automobile Liability Insurance: Contractor shall carry and maintain during the term of this Agreement, automobile liability insurance with either a combined limit of at least $1,000,000 per occurrence for bodily injury and property damage or split limits of at least $1,000,000 for bodily injury per person per occurrence and $1,000,000 for property damage per occurrence. Coverage shall include all owned, hired, and non -owned motor vehicles used in the performance of this contract by the Contractor or its employees. Subcontractor: In the case of any work sublet, the Contractor shall require subcontractor and independent contractors working under the direction of either the Contractor or a subcontractor to carry and maintain the same workers compensation and liability insurance required of the Contractor. Qualifying Insurance: The insurance required by this Agreement shall be written by non - assessable insurance company licensed to do business in the State of Texas and currently rated "B +" or better by the A.M. Best Companies. All policies shall be written on a "per occurrence basis" and not a "claims made" form. Evidence of such insurance shall be attached as Exhibit "C ". Failure of Certificate Holder to demand a certificate or other evidence of full compliance with these insurance requirements or failure of Certificate Holder to identify a deficiency from evidence that is provided will not be construed as a waiver of Insured's obligation to maintain such insurance. Section 6. Miscellaneous Provisions (A) Subletting. The Contractor shall not sublet or transfer any portion of the work under this Agreement or any Scope of Work issued pursuant to this Agreement unless specifically approved in writing by the City, which approval shall not be unreasonably withheld. Subcontractors shall comply with all provisions of this Agreement and the applicable Scope of Work. The approval or acquiescence of the City in the subletting of any work shall not relieve the Contractor of any responsibility for work done by such subcontractor. (B) Compliance with Laws. The Contractor shall comply with all federal, state and local laws, statutes, ordinances, rules and regulations, and the orders and decrees of any courts, administrative, or regulatory bodies in any matter affecting the performance of this Agreement, including, without limitation, worker's compensation laws, minimum and maximum salary and wage statutes and regulations, and licensing laws and regulations. When required, the Contractor shall furnish the City with satisfactory proof of compliance. (C) Independent Contractor. Contractor acknowledges that Contractor is an independent contractor of the City and is not an employee, agent, official or representative of the City. Contractor shall not represent, either expressly or through implication, that Contractor is an employee, agent, official or representative of the City. Income taxes, self - employment taxes, social security taxes and the like are the sole responsibility of the Contractor. CrrY OF SCHERTZ PAGE 3 ACE CO Service Agreement (D) Non - Collusion. Contractor represents and warrants that Contractor has not given, made, promised or paid, nor offered to give, make, promise or pay any gift, bonus, commission, money or other consideration to any person as an inducement to or in order to obtain the work to be provided to the City under this Agreement. Contractor further agrees that Contractor shall not accept any gift, bonus, commission, money, or other consideration from any person (other than from the City pursuant to this Agreement) for any of the Work performed by Contractor under or related to this Agreement. If any such gift, bonus, commission, money, or other consideration is received by or offered to Contractor, Contractor shall immediately report that fact to the City and, at the sole option of the City, the City may elect to accept the consideration for itself or to take the value of such consideration as a credit against the compensation otherwise owing to Contractor under or pursuant to this Agreement. (E) Force Majeure. If the performance of any covenant or obligation to be performed hereunder by any party is delayed as a result of circumstances which are beyond the reasonable control of such party (which circumstances may include, without limitation, pending litigation, acts of God, war, acts of civil disobedience, fire or other casualty, shortage of materials, adverse weather conditions [such as, by way of illustration and not of limitation, severe rain storms or below freezing temperatures, or tornados] labor action, strikes or similar acts, moratoriums or regulations or actions by governmental authorities), the time for such performance shall be extended by the amount of time of such delay, but no longer than the amount of time reasonably occasioned by the delay. The party claiming delay of performance as a result of any of the foregoing force majeure events shall deliver written notice of the commencement of any such delay resulting from such force majeure event not later than seven (7) days after the claiming party becomes aware of the same, and if the claiming party fails to so notify the other party of the occurrence of a force majeure event causing such delay and the other party shall not otherwise be aware of such force majeure event, the claiming party shall not be entitled to avail itself of the provisions for the extension of performance contained in this subsection. (F) Conflict of Terms. Scope of work: In the case of any conflicts between the terms of this Agreement within the Scope of Work, this Agreement shall govern. The Scope of Work is intended to detail the technical scope of Work, fee schedule, and contract time only and shall not dictate Agreement terms. Other Agreements between parties: In the case of any conflicts between the terms of this Agreement and wording contained within any other attachment, amendment, and agreement executed between the parties in conjunction with this Agreement, this Agreement shall govern. (G) Non - Boycott of Israel. The City of Schertz may not enter into a contract with a company for goods and services unless the contract contains a written verification from the company that; (i) it does not Boycott Israel; and (ii) will not Boycott Israel during the term of the contract. (Texas Government Code chapter 2270) by accepting this purchase order, the vendor (Professional or other applicable term defining the contracting party) verifies that it does not Boycott Israel, and agrees that during the term of this agreement (contract as applicable) will not Boycott Israel as that term is defined in the Texas Government Code Section 808.001, as amended. CITY OF SCHERTZ PAGE 4 ACE CO Service Agreement Relevant definitions from the bill: "Company" means a for - profit sole proprietorship, organization, association, corporation, partnership, joint venture, limited partnership, limited liability partnership, or limited liability company, including a wholly owned subsidiary, majority -owned subsidiary, parent company, or affiliate of those entities or business associations that exists to make a profit. "Boycott Israel" means refusing to deal with, terminating business activities with, or otherwise taking any action that is intended to penalize, inflict economic harm on, or limit commercial relations specifically with Israel, or with a person or entity doing business in Israel or in an Israeli - controlled territory, but does not include an action made for ordinary business purposes. Section 7. Termination (A) This Agreement may be terminated: (1) By the mutual agreement and consent of both Contractor and City; (2) By either party, upon the failure of the other party to fulfill its obligations as set forth in either this Agreement or a Scope of Work issued under this Agreement; (3) By the City, immediately upon notice in writing to the Contractor, as consequence of the failure of Contractor to perform the Work contemplated by this Agreement in a timely or satisfactory manner; (4) By the City, at will and without cause upon not less than five (5) days written notice to the Contractor. (B) If the City terminates this Agreement pursuant to subsection 7(A)(2) or (3), above, the Contractor shall not be entitled to any fees or reimbursable expenses other than the fees and reimbursable expenses then due and payable as of the time of termination and only then for those Work that have been timely and adequately performed by the Contractor considering the actual costs incurred by the Contractor in performing work to date of termination, the value of the work that is nonetheless usable to the City, the cost to the City of employing another Contractor to complete the work required and the time required to do so, and other factors that affect the value to the City of the work performed at time of termination. In the event of termination not the fault of the Contractor, the Contractor shall be compensated for all basic, special, and additional Work actually performed prior to termination, together with any reimbursable expenses then due. Section 8. Indemnification CONTRACTOR AGREES TO INDEMNIFY AND HOLD THE CITY OF SCHERTZ, TEXAS AND ALL OF ITS PRESENT, FUTURE AND FORMER AGENTS, EMPLOYEES, OFFICIALS AND REPRESENTATIVES HARMLESS IN THEIR OFFICIAL, INDIVIDUAL AND REPRESENTATIVE CAPACITIES FROM ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, JUDGMENTS, LIENS AND EXPENSES (INCLUDING CITY OF SCHERTZ PAGE 5 ACE CO Service Agreement ATTORNEYS FEES, WHETHER CONTRACTUAL OR STATUTORY), COSTS AND DAMAGES (WHETHER COMMON LAW OR STATUTORY), COSTS AND DAMAGES (WHETHER COMMON LAW OR STATUTORY, AND WHETHER ACTUAL, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL), OF ANY CONCEIVABLE CHARACTER, FOR INJURIES TO PERSONS (INCLUDING DEATH) OR TO PROPERTY (BOTH REAL AND PERSONAL) CREATED BY, ARISING FROM OR IN ANY MANNER RELATING TO THE WORK OR GOODS PERFORMED OR PROVIDED BY CONTRACTOR — EXPRESSLY INCLUDING THOSE ARISING THROUGH STRICT LIABILITY OR UNDER THE CONSTITUTIONS OF THE UNITED STATES. Section 9. Notices Any notice required or desired to be given from one party to the other party to this Agreement shall be in writing and shall be given and shall be deemed to have been served and received (whether actually received or not) if (i) delivered in person to the address set forth below; (ii) deposited in an official depository under the regular care and custody of the United States Postal Service located within the confines of the United States of America and sent by certified mail, return receipt requested, and addressed to such party at the address hereinafter specified; or (iii) delivered to such party by courier receipted delivery. Either party may designate another address within the confines of the continental United States of America for notice, but until written notice of such change is actually received by the other party, the last address of such party designated for notice shall remain such party's address for notice. Section 10. No Assignment Neither parry shall have the right to assign that party's interest in this Agreement without the prior written consent of the other party. Section 11. Severability If any term or provision of this Agreement is held to be illegal, invalid or unenforceable, the legality, validity or enforceability of the remaining terms or provisions of this Agreement shall not be affected thereby, and in lieu of each such illegal, invalid or unenforceable term or provision, there shall be added automatically to this Agreement a legal, valid or enforceable term or provision as similar as possible to the term or provision declared illegal, invalid or unenforceable. Section 12. Waiver Either City or the Contractor shall have the right to waive any requirement contained in this Agreement that is intended for the waiving parry's benefit, but, except as otherwise provided herein, such waiver shall be effective only if in writing executed by the party for whose benefit such requirement is intended. No waiver of any breach or violation of any term of this Agreement shall be deemed or construed to constitute a waiver of any other breach or violation, whether concurrent or subsequent, and whether of the same or of a different type of breach or violation. Section 13. Governing Law; Venue This Agreement and all of the transactions contemplated herein shall be governed by and construed in accordance with the laws of the State of Texas. The provisions and obligations of this Agreement are performable in Guadalupe County, Texas such that exclusive venue for any action arising out of this Agreement shall be in Guadalupe County, Texas. Section 14. Paragraph Headings; Construction The paragraph headings contained in this Agreement are for convenience only and shall in no way CITY OF SCHERTZ PAGE 6 ACE CO Service Agreement enlarge or limit the scope or meaning of the various and several paragraphs hereof Both parties have participated in the negotiation and preparation of this Agreement and this Agreement shall not be construed either more or less strongly against or for either party. Section 15. Binding Effect Except as limited herein, the terms and provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, devisees, personal and legal representatives, successors and assigns. Section 16. Gender Within this Agreement, words of any gender shall be held and construed to include any other gender, and words in the singular number shall be held and construed to include the plural, unless the context otherwise requires. Section 17. Counterparts This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all of which shall constitute but one and the same instrument. Section 18. Exhibits & Attachments All exhibits and attachments to this Agreement are incorporated herein by reference for all purposes wherever reference is made to the same. Section 19. Entire Agreement It is understood and agreed that this Agreement contains the entire agreement between the parties and supersedes any and all prior agreements, arrangements or understandings between the parties relating to the subject matter. No oral understandings, statements, promises or inducements contrary to the terms of this Agreement exist. This Agreement cannot be changed or terminated orally. Section 20. Relationship of Parties Nothing contained in this Agreement shall be deemed or construed by the parties hereto or by any third party to create the relationship of principal and agent or of partnership or of joint venture or of any association whatsoever between the parties, it being expressly understood and agreed that no provision contained in this Agreement nor any act or acts of the parties hereto shall be deemed to create any relationship between the parties other than the relationship of independent parties contracting with each other solely for the purpose of effecting the provisions of this Agreement. CITY OF SCHERTZ PAGE 7 ACE CO Service Agreement, Section 21. Right To Audit City shall have the right to examine and audit the books and records of Contractor with regards to the work described in Exhibit A, or any subsequent changes, at any reasonable time. Such books and records will be maintained in accordance with generally accepted principles of accounting and will be adequate to enable determination o£ (1) the substantiation and accuracy of any payments required to be made under this Agreement; and (2) compliance with the provisions of this Agreement. Section 22. Dispute Resolution In accordance with the provisions of Subchapter I, Chapter 271, TEx. LOCAL Gov'T CODE, the parties agree that, prior to instituting any lawsuit or other proceeding arising from a dispute under this agreement, the parties will first attempt to resolve the dispute by taking the following steps: (1) A written notice substantially describing the nature of the dispute shall be delivered by the dissatisfied party to the other party, which notice shall request a written response to be delivered to the dissatisfied party not less than 5 days after receipt of the notice of dispute. (2) If the response does not reasonably resolve the dispute, in the opinion of the dissatisfied party, the dissatisfied parry shall give notice to that effect to the other parry whereupon each party shall appoint a person having authority over the activities of the respective parties who shall promptly meet, in person, in an effort to resolve the dispute. (3) If those persons cannot or do not resolve the dispute, then the parties shall each appoint a person from the highest tier of managerial responsibility within each respective party, who shall then promptly meet, in person, in an effort to resolve the dispute. Section 23. Disclosure of Business Relationships /Affiliations; Conflict of Interest Questionnaire Contractor represents that it is in compliance with the applicable filing and disclosure requirements of Chapter 176 of the Texas Local Government Code. Certificate of Interested Parties Effective January 1, 2016, pursuant to House Bill 1295 passed by the 84th Texas Legislature (Section 2252.908, Texas Government Code, as amended) and formal rules released by the Texas Ethics Commission (TEC), all contracts with private business entities requiring approval by the Schertz City Council will require the on -line completion of Form 1295 "Certificate of Interested Parties." Form 1295 is also required for any and all contract amendments, extensions or renewals. Contractors are required to complete and file electronically with the Texas Ethics Commission using the online filing application. Please visit the State of Texas Ethics Commission website, https://www.ethics.state.tx .us/whatsnew/elf info form1295.htm and https://www.ethics.state.tx.us/tee/1295- Info.htm for more information. IF YOU HAVE ANY QUESTIONS ABOUT COMPLIANCE, PLEASE CONSULT YOUR OWN LEGAL COUNSEL. COMPLIANCE IS THE INDIVIDUAL RESPONSIBILITY OF EACH PERSON OR AGENT OF A PERSON WHO IS SUBJECT TO THE FILING REQUIREMENT. AN OFFENSE UNDER CHAPTER 176 IS A CLASS C MISDEMEANOR. [The remainder of this page is intentionally left blank.] CITY OF SCIIERTZ PAGE 8 ACE CO Service Agreement EXECUTED on this the CITY: day of )2018. CONTRACTOR: By: By: Name: Brian James Name: Title: Acting City Manager Title: ADDRESS FOR NOTICE: CITY: City of Schertz Attn: Brian James, Acting City Manager 1400 Schertz Parkway Schertz, Texas 78154 CONTRACTOR: ACE CO 2571 MacArthur View San Antonio, Texas 78217 210 - 494 -2338 MY OF SCHFRTZ PAGE 9 ACE CO Service Agreement Exhibit "A" SCOPE OF WORK Proiect• Landscape Maintenance of Medians, Parkways and Public Grounds. Location Various City of Schertz owned properties as required. Scone of Work Includes but is not limited to the maintenance and grounds keeping Scope of Work detailed in RFP 17- PK -50 -A- 02 attached as Exhibit "D ". Initial Schedule and Work Requests City staff will issue a mowing season's initial schedule at the beginning of each contract period selecting locations and frequency of service. There are three scope of service groupings for this Agreement labeled within the RFP as 1, 2 and 3. Contractor agrees that City may issue any combination of the groupings with each initial schedule order. During the season, the City may request in writing additional services as required. This additional work shall be priced in accordance with the Compensation Schedule detailed in this Exhibit "A ". Additional work shall be performed by Contractor within two working days of the written request. Term of Service Agreement This Service Agreement shall automatically terminate September 30, 2019 unless extended by City Council Approval. Notwithstanding the foregoing, this contract shall be terminated if funds allocated for expenditure under this agreement are not available as provided for in sections 3 and 7. of this agreement. Extensions If agreed by the City and Contractor, this Agreement may be extended if approved by the City Council for a period of one year. A maximum of three (3) extensions may be made. Maximum Contract Expenditure Cumulative expenditures under this agreement shall not exceed $96,000.00 during its first two -year term. Maximum expenditures during each of the Schertz fiscal years shall not exceed $48,000.00 unless otherwise negotiated and approved by City Council. Fiscal year one is defined as October 1, 2017 through September 30, 2018. Fiscal year two is defined as October 1, 2018 through September 30, 2019. Fiscal year for the optional term period three is defined as October 1, 2019 through September 30, 2020. Fiscal year for the optional term period four is defined as October 1, 2020 through September 30, 2021. Fiscal year for the optional term period five is defined as October 1, 2021 through September 30, 2022. Order of Precedence in Agreement Documents Order of Precedence. In the case a specific deliverable or service is not clearly defined within this agreement or any documents relating to the Scope of Work of the Product and Services shall be resolved by giving precedence in the following order: (i) the terms and conditions of this Agreement (ii) a documented negotiated Scope of Work CITY OF SCHERTZ PAGE 10 ACE CO Service Agreement (iii) Exhibits and Attachments to this Agreement including but not limited to: a. This Exhibit "A ". b. Exhibit `B" REQUIREMENTS FOR ALL INSURANCE DOCUMENTS. c. Exhibit "C" Evidence of Insurance. d. Exhibit "D" The detailed Scope of Services from RFP 17- PK- 50 -A -02. (iv) Any documented Best and Final Offers from Contractor. (v) the Contractor's Proposal dated January 7th 2018. (vi) the Request for Proposals 17- PK- 50 -A -02. Compensation Schedule: (Price) Mowing, String Trimming, Curb Edging, Blowing & Litter Control per Cycle for Properties Shown in Attachment Al of RFP #17- PK- 50 -A -02: Location Compensation per Cycle Ashley Park $398.65 Cove Trail Drainage Lot $41.12 Cypress Point Park $881.23 Forest Ridge Park $587.49 Gutierrez Xerisca e Park $167.85 Heritage Oaks Park $125.89 Lone Oak Park $28.54 No Name Park $164.50 North Center $173.73 Oak Forest Park $167.85 Old Animal Control Building $125.89 Palm Park $198.91 Rhine Valley Park $419.63 The Park at Woodland Oaks $151.07 Wendy Swan Memorial Park $209.82 Cost per Acre for non - listed locations $80.00 Mowing, String Trimming, Curb Edging, Blowing, Litter Control, & Planting Bed Maintenance for Properties Shown in Attachment A2 of RFP #17- PK- 50 -A -02: Hal Baldwin Municipal Complex $393.41 Schertz Public Library Complex $393.41 Fire Station #2 $118.02 Cost per Acre for non - listed locations $80.00 Mowing, String Trimming, Curb Edging, Blowing, Litter Control, & Planting Bed Maintenance for Properties Shown in Attachment A3 of RFP #17- PK- 50 -A -02: Location Compensation per Cycle Schertz Parkway (welcome sign, medians, sidewalks $668.79 Legacy Oaks Parkway $78.68 Country Club Drive $39.34 Per Mile Cost for non - listed locations $225.00 END EXIIIBIT "A" MY OF SCHERTZ PAGE 11 ACE CO Service Agreement Exhibit "B" REQUIREMENTS FOR ALL INSURANCE DOCUMENTS The Contractor shall comply with each and every condition contained herein. The Contractor shall provide and maintain the minimum insurance coverage set forth below during the term of its agreement with the City. Any Subcontractor(s) hired by the Contractor shall maintain insurance coverage equal to that required of the Contractor. It is the responsibility of the Contractor to assure compliance with this provision. The City of Schertz accepts no responsibility arising from the conduct, or lack of conduct, of the Subcontractor. INSTRUCTIONS FOR COMPLETION OF INSURANCE DOCUMENT With reference to the foregoing insurance requirements, Contractor shall specifically endorse applicable insurance policies as follows: 1. The City of Schertz shall be named as an additional insured with respect to General Liability and Automobile Liability on a separate endorsement. 2. A waiver of subrogation in favor of The City of Schertz shall be contained in the Workers Compensation and all liability policies and must be provided on a separate endorsement. 3. All insurance policies shall be endorsed to the effect that The City of Schertz will receive at least thirty (30) days written notice prior to cancellation or non - renewal of the insurance. 4. All insurance policies, which name The City of Schertz as an additional insured, must be endorsed to read as primary and non - contributory coverage regardless of the application of other insurance. 5. Chapter 1811 of the Texas Insurance Code, Senate Bill 425 82(R) of 2011, states that the above endorsements cannot be on the certificate of insurance. Separate endorsements must be provided for each of the above. 6. All insurance policies shall be endorsed to require the insurer to immediately notify The City of Schertz of any material change in the insurance coverage. 7. All liability policies shall contain no cross liability exclusions or insured versus insured restrictions. 8. Required limits may be satisfied by any combination of primary and umbrella liability insurances. 9. Contractor may maintain reasonable and customary deductibles, subject to approval by The City of Schertz. 10. Insurance must be purchased from insurers having a minimum AmBest rating of B +. 11. All insurance must be written on forms filed with and approved by the Texas Department of Insurance. (ACORD 25 2010/05). Coverage must be written on an occurrence form. 12. Contractual Liability must be maintained covering the Contractors obligations contained in the contract. Certificates of Insurance shall be prepared and executed by the insurance company or its authorized agent and shall contain provisions representing and warranting all endorsements and insurance coverages according to requirements and instructions contained herein. 13. Upon request, Contractor shall furnish The City of Schertz with certified copies of all insurance policies. 14. A valid certificate of insurance verifying each of the coverages required above shall be issued directly to the City of Schertz within ten (10) business days after contract award and prior to starting any work by the successful Contractor's insurance agent of record or insurance company. Also, prior to the start of any work and at the same time that the Certificate of Insurance is issued and sent to the City of Schertz, all required endorsements identified in sections A, B, C and D, above shall be sent to the City of Schertz. The certificate of insurance and endorsements shall be sent to: City of Schertz Purchasing Department 1400 Schertz Parkway Schertz, TX 78154 CITY OF SCBERTZ ACE CO Service Agreement emailed to: purchasina(i schertz.com Faxed to: 210 - 619 -1169 PAGE 12 GE RWIFICs T OF LIABILITY INS A l ran i I1113 CE111111°1VATI If3 18410 i0 M A Mwanli URA trtFoli},IAvion 0ULY Atli] 00141'NIt9 140 111011TH UPoll TIM 01IRTIMATIsp HI 01111TiPWAT11 r101119 NOT Al"PI1gVA'11VULY OR MIGAIMIN alMMKI, IJKTORIEI <At 1t 1119 00VriRACE aAl„I'ORD111I BY 11 Noy roqWro tin oil 01a coriillaalo clogs not conrdr 11norrrancoA pty f U 11 _ hi$�3�r4aj Fr��� ipp,1.1. 33333- 816114 Mat nouRE£t A I l0uranco co(Ai LIED Immo nlc _-- IIaSsME:I{rlrsutnrlrtoGarrlure _ �1' XV Corr arty C 1Street kr rS1 Ir11. 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A00110 29 (2 01015) M11&IRLI -AVOM N11411itt 1a11Y i�1a f }!a At1t14`t11�11t1•cltitsisa I�a�llristt IsN ��Ilo�Ltuf> Q�RT�n 17411 N;ilaalEr'eW14 VA '"113111101', U0110E NM I, PU OVILI�l UD Ili il�114ki�A}I�� k�d1t }I t1ltl I�i�ta7Y la411)'4'18�1 }I�F- rn�tiateDtcTrTanSCITrA'�4u TboACOt113 it nitl anal In»ar nT%t raTg lat ri 11 !11lia � �t rk tSEit CITY OF SCHERTZ PAGE 13 ACE CO Service Agreement V v X Pre ,wr� uiaatx�ar�oatilsarri« � -- 43 +dL h to �ar h & ¢ICED 4 0 123%1i�141 (0)lhlldl DO 0`110111000 OWIL? 110AK' ivy t4awi) m d - 1[tlllK?RifY{}5 F AUTOS cati4ia4 Ukan°EELEfs th4§ tC41�i 5-� Y Eisild 0 P *01153 PAK CUM hP®nEra a TIED 6 EIlPD46 K t - - — 1Ntini4�n8ti_abaPRIdBA21[ .. _.•, 1) ,ilt£1P-w37FE ARts°EI2,LkJj`/ n kafY�ia^,1i;aard;T�hn1r�T; acscvarvrr ilraEaat tt iiiA Y ' 114 3 01,N)IFI000 ovollicoJ F I-er >1+ 43psiT # t t — 0WAIIi#tsaORRKC j�f444t#q rat K11{j — E L rd E,SS'` he+ iriY� L �fl'' -Q.,. Vir §Gaar�#a a Za - F L Vo r' ME s�lGYn511r 1 &t)i7.1 1 MilwahlWait ( - Y 1 34 1 i1it131�1?1410 t1laYatdl l�+ai lr,�Iro4l VnlelD,ti� n m nt aEla�lla 1"riiltlA�&v1lnf oevt s -_ - 5i,C4Q+5,t}01T ao 1€lnlnt � It,i?5 'Wo ft now Tafi�`CiiIFI�J!I18r� i'fPEnd41i{airT! (.'4SS`- I�FI ®rtlf r'g'E71lCLUl 1hlli9hfi�i7�14{I i4P., h1�iY*ftlll�tlh'Iti{w5 E�IrSd�9'.�, li f+'«)Ib 9�if la ed%i1} [r�dtlly^o a}gr�uTlty 1.241? tii+.lstbo ttrt'�alftlr1ltiz,l?101�nry1�ix 1111 1, Tor, ira�, �o�in (}:u �I�s cnDCteill�y'€daatrs t.d{il�l;!1irTO 41�1;f�j aN�lar� In 11,1. �s i1y of Schram 1400 $chAriz Po-At; Ay G) C 8cftoatz Tx 78154 Akin Purchasing Dept. A00110 29 (2 01015) M11&IRLI -AVOM N11411itt 1a11Y i�1a f }!a At1t14`t11�11t1•cltitsisa I�a�llristt IsN ��Ilo�Ltuf> Q�RT�n 17411 N;ilaalEr'eW14 VA '"113111101', U0110E NM I, PU OVILI�l UD Ili il�114ki�A}I�� k�d1t }I t1ltl I�i�ta7Y la411)'4'18�1 }I�F- rn�tiateDtcTrTanSCITrA'�4u TboACOt113 it nitl anal In»ar nT%t raTg lat ri 11 !11lia � �t rk tSEit CITY OF SCHERTZ PAGE 13 ACE CO Service Agreement (Instructions for completing and submitting a certificate to the City of Schertz) Complete the certificate of insurance with the information listed below: A) Certificate of Insurance date B) Producer (Insurance Agency) Information — complete name, address, telephone information, & email address. C) Insured's (Insurance Policy Holder) Information — complete name & address information D) Insurer (name /names of insurance company) * *(Remember the city requires all insurance companies to be Authorized to do business in the State of Texas be rated by A.M. Best with a rating of B+ (or better) Class VI (or higher) or otherwise be acceptable to the City if not rated by A.M. Best) E) NAIC # (National Association of Insurance Commissioners, a # that is assigned by the State to all insurance companies) F) Insurer letter represents which insurance company provides which type of coverage from D G) General Liability Insurance Policy — must have an (x) in box. Also, "Occurrence" type policy — must have an (x) in the box (occurrence policy preferred but claims made policy can be accepted with special approval) H) This section shall be filled in with "Y" for yes under Additional Insured for all coverages, except for Contractor Liability and Workers' Compensation. There shall also be a "Y" for yes under all coverages for subrogation waived. I) Automobile Liability Insurance — must be checked for Any Auto, All Owned Autos, Hired Autos .l) Umbrella Coverage — must be checked in this section and by occurrence whenever it is required by written contract and in accordance with the contract value. K) Worker's Compensation and Employers Liability Insurance — information must be completed in this section of the certificate of insurance form (if applicable). L) Builder's Risk Policy — for construction projects as designated by the City of Schertz. Professional Liability Coverage — for professional services if required by the City of Schertz. M) Insurance Policy #'s N) Insurance policy effective dates (always check for current dates) O) Insurance Policy limits (See Insurance Requirements Checklist) P) This section is to list projects, dates of projects, or location of project. Endorsements to the insurance policy(ies) must be provided separately and not in this section. The following endorsements are required by the City of Schertz. (1) Adding the City of Schertz as an additional insured. The "additional insured" endorsement is not required for professional liability and workers compensation insurance; and (2) Waiver of Subrogation (3) Primary and Non - Contributory (4) Cancellation Notice Q) City of Schertz's name and address information must be listed in this section R) Notice of cancellation, non - renewal, or material change to the insurance policy(ies) must be provided to the City of Schertz in accordance with a cancellation notice endorsement to the policy and /or per the policy provisions based on the endorsement adding the city as an additional insured. (Sec. 1811.155, Tex. Ins. Code) S) The certificate must be signed by the Authorized Agent in this section of the certificate form. CITY OF SCHERTZ PAGE 14 ACE CO Service Agreement Exhibit "C" EVIDENCE OF INSURANCE CITY OF SCHERTZ PAGE 15 ACE CO Service Agreement