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2003-146ORD CE NO. CONSIDER ADOPTION OF AN ORDINANCE AWARDING A CONTRACT FOR THE PURCHASE OF PESTICIDE SERVICES FOR SPRAYING OF MOSQUITOES; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (BID 3007-PESTICIDE SERVICES FOR SPRAYING OF MOSQUITOES AWARDED TO ADAMS EXTERMINATING CO., INC. IN THE AMOUNT OF $16.50 PER LINEAR MILE). WHEREAS, the City has solicited, received and tabulated competitive bids for the purchase of necessary materials, equipment; supplies or services in accordance with the procedures of STATE law and City ordinances; and WHEREAS, the City Manager or a designated employee has reviewed and recommended that the herein described bids are the lowest responsible bids for the materials, equipment, supplies or services as shown in the "Bid Proposals" submitted therefore; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the numbered items in the following numbered bids for materials, equipment, supplies, or services, shown in the "Bid Proposals" on file in the office of the City Purchasing Agent, are hereby accepted and approved as being the lowest responsible bids for such items: BID NUMBER VENDOR AMOUNT 3OO7 Adams Exterminating Co., Inc. $16.50/linear mile SECTION 2. That by the acceptance and approval of the above numbered items of the submitted bids, the City accepts the offer of the persons submitting the bids for such items and agrees to purchase the materials, equipment, supplies or services in accordance with the terms, specifications, standards, quantities and for the specified sums contained in the Bid Invitations, Bid Proposals, and related documents. SECTION 3. That should the City and persons submitting approved and accepted items and of the submitted bids wish to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the bids, the City Manager or his designated representative is hereby authorized to execute the written contract which shall be attached hereto; provided that the written contract is in accordance with the terms, conditions, specifications, standards, quantities and specified sums contained in the Bid Proposal and related documents herein approved and accepted. SECTION 4. That by the acceptance and approval of the above numbered items of the submitted bids, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved bids or pursuant to a written contract made pursuant thereto as authorized herein. SECTION 5. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this ~'~t'day of ,2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY SERVICE AGREEMENT THIS AGREEMENT is made and entered into as of the effective date as set forth below, by and between t he City of Denton, Texas, a Texas municipal c orporation, with i ts principal office at 215 East McKinney Street, Denton, Texas 76201, "CITY"; and Adams Exterminating Co., Inc., with its offices at 1201 E. Mckinney, Denton, Texas 76202 "CONTRACTOR"; CITY and CONTRACTOR are acting herein, by and through their duly-authorized officials and representatives. WITNESSETH, that in consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows: ARTICLE I EMPLOYMENT OF CONTRACTOR The CITY hereby contracts with the CONTRACTOR, as an independent contractor, and the CONTRACTOR hereby agrees to perform the services herein in connection with the project as stated below, with diligence and in accordance with the highest standards customarily obtained for such services in the State of Texas. The project shall include without limitation, all pesticide services for the spraying of mosquitoes as described in Exhibit "A" attached hereto and made a part hereof by reference ("Project"). ARTICLE II SCOPE OF SERVICES The CONTRACTOR shall perform all those services for the Project as described in Exhibit "A" and as further described in CONTRACTOR'S Proposal ("Proposal") a copy of which is attached hereto and made a part hereof as Exhibit "B" ("Basic Services"). ARTICLE III PERIOD OF SERVICE This Agreement shall become effective upon execution of this Agreement by the CITY and the CONTRACTOR and upon the issuance of a notice to proceed by the CITY, and shall remain in force for the period which may reasonably be required for the completion of the Project, including Additional Services, if any, and any required extensions approved by the CITY. This Agreement may be sooner terminated in accordance with the provisions hereof. Time is of the essence in this Agreement. The CONTRACTOR shall make all reasonable efforts to complete the services set forth herein as expeditiously as possible and to meet the schedule established by the CITY, acting through its City Manager or his designee. ARTICLE IV COMPENSATION For and in consideration of the Basic Services to be performed by the CONTRACTOR herein, the CITY agrees to pay a fee based on $16.50 per linear mile of area sprayed with insecticides for the Project ("Fee"). The Fee will be paid after completion of the Basic Services and within 30 days following billing. Nothing contained in this Article shall require the CITY to pay for any work which is unsatisfactory, as reasonably determined by the City Manager or his designee, or which is not submitted in compliance with the terms of this Agreement. The CITY shall not be required to make any payments to the CONTRACTOR when the CONTRACTOR is in default under this Agreement. It is specifically understood and agreed that the CONTRACTOR shall not be authorized to undertake any work pursuant to this Agreement which would require additional payments by the CITY for any charge, expense, or reimbursement above the Fee, without first having obtained written authorization from the CITY to proceed with such additional services. ARTICLE V. OBSERVATION AND REVIEW OF THE WORK The CONTRACTOR will exercise reasonable care and due diligence in discovering and promptly reporting to the CITY any defects or deficiencies in the work of the CONTRACTOR or any subcontractors. ARTICLE VI INDEPENDENT CONTRACTOR CONTRACTOR shall provide services to CITY as an independent contractor, not as an employee of the CITY. CONTRACTOR shall not have or claim any right arising fi.om employee status. ARTICLE VII INDEMNITY AGREEMENT The CONTRACTOR shall indemnify, defend and hold harmless the CITY and its officials, o ~cers, a gents, and employees from a nd against any and a 111 iability, claims, 1 iens, suits, demands, damages, losses, and expenses, including, but not limited to court costs and reasonable attorney's fees incurred by the CITY, and including, without limitation, damages for bodily and personal injury, death and property damage, arising out of performance under this Agreement or resulting from the negligent acts or omissions of the CONTRACTOR or its officers, a gents, employees, subcontractors and s ubconsultants, i n t he execution, operation, o r performance of this Agreement. Page 2 of 9 Nothing in this Agreement shall be construed to create a liability to any person who is not a party to this Agreement, and nothing herein shall waive any of the parties' defenses, both at law or equity, to any claim, cause of action, or litigation filed by anyone not a party to this Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved. Further, the CONTRACTOR shall at all times exercise reasonable precautions to protect the CITY'S mosquito spraying equipment and shall be responsible for any and all damage, loss, thetl or destruction that may occur to said equipment, normal and reasonable wear and tear excluded. ARTICLE VIII INSURANCE During the performance of the services under this Agreement, CONTRACTOR shall maintain the following insurance with an insurance company licensed to do business in the State of Texas and has a rating with A. M. Best Rate Carriers of at least an A- or above: Comprehensive General Liability Insurance with bodily injury limits of not less than $500,000 for each occurrence and not less than $1,000,000 in the aggregate, and with property damage limits of not less than $250,000 for each occurrence and not less than $500,000 in the aggregate. Bo Automobile Liability Insurance with bodily injury limits of not less than $500,000 for each person and not less than $500,000 for each accident, and with property damage limits of not less than $100,000 for each accident. Coverage shall also be provided for Environmental Impah'ment/Pollution Liability either through the above referenced Comprehensive General Liability coverage or through a separate policy. The required mounts of coverage shall be the same as for the Comprehensive General Liability Insurance. The CONTRACTOR shall furnish insurance certificates or insurance policies at the CITY's request to evidence such coverages. The insurance policies shall name the CITY as an additional insured on all such policies to the extent possible, and shall contain a provision that such insurance shall not be cancelled or modified without thirty (30) days prior written notice to CITY and CONTRACTOR. In such event, the CONTRACTOR shall, prior to the effective date of the change or cancellation, deliver to CITY substitute policies or certificates furnishing the same coverage. Such insurance policies shall also contain a waiver of subrogafion against the CITY. Page 3 of 9 ARTICLE I~. TERMINATION OF AGREEMENT Notwithstanding any other provision of this Agreement, the CITY may terminate this Agreement at any time by giving CONTRACTOR 30 days written notice of termination. This Agreement may be terminated in whole or in part in the event of either party substantially failing to fulfill its obligations under this Agreement. No such termination will be affected unless the other party is given (1) written notice (delivered by certified mail, return receipt requested) of intent to terminate and setting forth the reasons specifying the non-performance, and not less than thirty (30) calendar days to cure the failure; and (2) an opportunity for consultation with the terminating party prior to termination. If the Agreement is terminated prior to completion of the services to be provided hereunder, CONTRACTOR shall immediately cease all services and shall render a final bill for services to the CITY within thirty (30) days after the date of termination. If the CONTRACTOR is not in default, the CITY shall pay CONTRACTOR for all services properly rendered and satisfactorily performed prior to the date of termination. Should the CITY subsequently contract with a new contractor for the continuation of services on the Project, CONTRACTOR shall cooperate in providing information. The CONTRACTOR s hall tum over a 11 materials a nd documents prepared or furnished b y CONTRACTOR pursuant to this Agreement to the CITY on or before the date of texmination. ARTICLE X RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the CITY shall not constitute, nor be deemed a release of the responsibility and liability of the CONTRACTOR, its employees, associates, agents, subcontractors, and subconsultants for the accuracy and competency of their work; nor shall such approval be deemed to be an assumption of such responsibility by the CITY for any defect in the work prepared by the CONTRACTOR, its employees, associates, agents, subcontractors and subconsultants. ARTICLE XI NOTICES All notices, communications, and reports required or permitted under this Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail to the addresses shown below, certified mail, return receipt requested, or to the fax numbers listed below, unless otherwise specified herein: Page 4 of 9 To CONTRACTOR: To CITY: City Manager City of Denton City Hall 215 E. McKinney Denton, Texas 76201 Fax No. 940.349.8596 All notices shall be deemed effective upon receipt by the party to whom such notice is given, or within three (3) days after the date of mailing. Page 5 of 9 ARTICLE XII ENTIRE AGREEMENT This Agreement including the exhibits attached hereto, constitutes the complete and final expression of the agreement of the parties, and is intended as a complete and exclusive statement of the terms of their agreements, and supersedes all prior contemporaneous offers, promises, representations, negotiations, discussions, communications, understandings, and agreements which may have been made in connection with the subject matter of this Agreement. ARTICLE XIII SEVERABILITY If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of this Agreement and shall not cause the remainder to be invalid or unenforceable. In such event, the parties shall reform this Agreement to replace such stricken provision with a valid and enfomeable provision which comes as close as possible to expressing the intention of the stricken provision. ARTICLE XIV COMPLIANCE WITH LAWS The CONTRACTOR shall comply with all federal, state, and local laws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereinafter be amended. ARTICLE XV DISCRIMINATION PROHIBITED In performing the services required hereunder, the CONTRACTOR shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. ARTICLE XVI PERSONNEL The CONTRACTOR represents that it has or will secure, at its own expense, all personnel required to perform all the services required under this Agreement. Such personnel shall not be employees or officers of, nor have any contractual relations with the CITY. CONTRACTOR shall inform the CITY of any conflict of interest or potential conflict of interest that may arise during the term of this Agreement. All services required hereunder will be performed by the CONTRACTOR or under its supervision. All personnel engaged in work shall be qualified, and shall be authorized and permitted under state and local laws to perform such services. Page 6 of 9 ARTICLE XVII ASSIGNABILITY The CONTRACTOR shall not assign any interest in this Agreement, and shall not transfer any interest in this Agreement (whether by assignment, novation, or otherwise) without the prior written consent of the CITY. ARTICLE XVIII MODIFICATION No waiver or modification of this Agreement or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith, and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, and unless such waiver or modification is in writing and duly executed by the parties. The parties further agree that the provisions of this Article will not be waived unless as set forth herein. ARTICLE XIX MISCELLANEOUS CONTRACTOR agrees that CITY shall, until the expiration of three (3) years after the final payment under this Agreement, have access to and the right to examine any directly pertinent books, documents, papers, and records of the CONTRACTOR involving transactions relating to this Agreement. CONTRACTOR agrees that CITY shall have access during normal working hours to all necessary CONTRACTOR'S facilities and shall be provided adequate and appropriate working space in order to conduct audits in compliance with this section. CITY shall give CONTRACTOR reasonable advance notice of intended audits. This Agreement is fully performable in Denton County, Texas. Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County, Texas. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas. For the purpose of this Agreement, the key persons who will perform most of the work hereunder shall be ,~,4/q' ~-55 } ~ . However, nothing herein shall limit CONTRACTOR from usin~other quahfied and competent members of its firm to perform the services required herein. CONTRACTOR shall commence, carry on, and complete the Project with all applicable dispatch, in a sound, economical, and efficient manner and in accordance with the provisions hereof. In accomplishing the Project, CONTRACTOR shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being carded on by the CITY. Page7of9 Eo The CITY shall assist the CONTRACTOR by placing at the CONTRACTOR'S disposal all available information pertinent to the Project, including previous reports, any other data relative to the Project, and arranging for the access thereto, and make all provisions for the CONTRACTOR to enter in or upon pubhc and private property as required for the CONTRACTOR to perform services under this Agreement. The captions of this Agreement are for informational purposes only, and shall not in any way affect the substantive terms or conditions of this Agreement. Signed to be effective the ~]~l~ay of ~ ,2003. Michael A. Conc[uff City Manager ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: HERBERTBy: '~CITY ATTORNEY "CONTRACTOR" Title: Page 8 of 9 EXHIBIT A 1. This is an annual contract with options to extend for two additional one-year periods upon written agreement by both parties. 2. All work will be done at the direction of the City of Denton Water/Wastewater Division assigned representative. 3. Application will be determined by City of Denton staff and authorized by action of the Denton City Council. 4. The City of Denton reserves the full right to determine if any related services are required. No commitment is made or implied as to minimal use of this service. 5. Notification of area residents as to pesticide spraying activities will be the responsibility of the City of Denton. 6. The service provider agrees to activate pesticide spraying activities within 48-60 hours of notification, however, the City of Denton reserves the right to expedite service requirements. 7. Pesticide spaying service will be performed normally between 12:00 midnight and 5:00 a.m. 8. Awarded service provider agrees to supply an appropriate vehicle and driver under the direction of a certified licensed pesticide applicator approved by the Texas Department of Health or other applicable agency. 9. Service provider will utilize spraying equipment supplied by the City of Denton, a Promist/Bcecomist M15 with radar/flow control, and further agrees to purchase pesticide from a supplier chosen by the City. 10. Service provider agrees to accept full responsibility for storage and proper disposal of all leftover or unused pesticide. 11. City of Denton owned equipment will be properly maintained and returned cleaned and fully operational at thc end of the service schedule. Service provider further agrees to attend training offered by the equipment representative, conducted in the Dallas/Ft. Worth metroplex area. Page 9 of 9