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HomeMy WebLinkAboutResolution - 2007-R0169 - Contract - Mcdougal Construction Ltd.- Pave Slide Road - 04/26/2007Resolution No. 2007-80169 April 26, 2007 Item No. 5.15 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock, a Contract between the City of Lubbock and McDougal Construction, Ltd. of Lubbock, Texas, for the City's participation in the cost to pave Slide Road from approximately 1,500 feet north of Erskine Street north 1,200 feet to the alley north of Marshall Street (related to the North Pointe Addition), and any other related documents. Said Contract is attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of the Council. Passed by the City Council this 26th day of Aril 2007. DAVID A. ELLER, MAYOR ATTEST: � ZX -Z� S. Rebe ca Garza, City Secretary TO C APPROVED AS TO FORM: roUccdocs/McDougal Construction -res March 26, 2007 CONTRACT STATE OF TEXAS COUNTY OF LUBBOCK Resolution No. 2007-RO169 This contract, (the "Contract'), effective as of the 26th day of Aprfl , 2007, (the "Effective Date"), is by and between the City of Lubbock, (the "City"), a Texas municipal corporation and McDougal Construction, Ltd. ("McDougal"). WITNESSETH WHEREAS, the City Council has determined that the city would contribute a portion of the cost of street paving improvements, as hereinafter described, to be constructed in accordance with the standard City of Lubbock plans and specifications as approved by the City Engineer, and McDougal, the developer of property abutting a portion of Slide Road, from approximately 1,500 feet north of Erskine Street north 1,200 feet to the alley north of Marshall Street, related to the proposed platting of a subdivison named North Pointe Addition, and said portion of Slide Road is a designated thoroughfare street on the City's Master Thoroughfare Plan; WHEREAS, McDougal, the developer of the property abutting on the herein described street has contracted separately for the above street improvements, and said improvements will be constructed in accordance with the above mentioned plans and specifications under the supervision of the City Engineer, and the developer desires that City contribute its share towards such paving in accordance with Subchapter C, Chapter 212 of the Texas Local Government Code; and WHEREAS, the contract cost of the paving improvements will not exceed $2,301,787.25, and the City's share in connection therewith will not exceed $129,225.46, such cost being well within the current prices for paving obtained by competitive bidding, and that such payment to be made by the City is reasonable, fair and just to McDougal, the abutting property developers, the City and all other persons affected thereby; THEREFORE, Section 1. THAT, the City Engineer shall review plans and specifications for paving on the street herein described, provided that such plans and specifications meet the usual requirements for paving within the corporate limits of the City of Lubbock; said street being as follows, to -wit: Slide Road from approximately 1, 500 feet north of Erskine Street north 1,200 feet to the alley north of Marshall Street. The City Engineer shall duly inspect said paving construction on said street and to require strict compliance with the approved plans and specification, and upon completion of said paving, and upon final approval by the City Engineer and acceptance of such improvements by the City Council, The City Engineer shall pay McDougal in full and final payment of the City's share of the cost of the above-mentioned improvements a sum not to exceed $129,225.46 which is the City's normal extra width participation in the cost of thoroughfare paving. Section 2. McDougal, the developer of abutting property will pay for all material and labor and costs incidental to such construction, indemnify the City of Lubbock against any costs, claims, or damages of every nature pertaining thereto, and shall require that any contractor performing work pursuant to this Contract shall furnish the City Engineer with acceptable evidence that any such contractor and his sub -contractors, if any, are adequately covered by public liability and property damage insurance policies, that McDougal will cause such paving to continue to be done according to the approved plans and specifications, and that upon completion thereof and final approval of the City Engineer all improvements designated herein shall be a permanent part of said street and the property of the City of Lubbock, without any liability whatsoever. NOW THEREFORE, for and in consideration of the terms, covenants and conditions set forth in this Contract, the City and McDougal hereby agree as follows: ARTICLE I. TERMINATION A. General. City may terminate this Contract, for any reason, upon thirty (30) days written notice to McDougal. B, Termination and Remedies. In the event McDougal breaches any term and/or provision of this Contract the City shall be entitled to exercise any right or remedy available to it at law or equity, including without limitation, termination of this Contract and assertion of action for damages and/or injunctive relief. The exercise of any right or remedy shall not preclude the concurrent or subsequent exercise of any other right or remedy and all other rights and remedies shall be cumulative. City or McDougal, in their sole discretion, terminate this Agreement at any time, with or without cause upon thirty (30) days written notice. ARTICLE II. REPRESENTATIONS AND WARRANTIES A. Authority. McDougal has authority to enter into this contract. B. Existence. McDougal is a corporation duly organized, validly existing, and in good standing under the laws of the State of Texas and is qualified to carry on its business in the State of Texas. McDougal Contract Page 2 of 8 C. Corporate Power. McDougal has the corporate power to enter into and perform this Contract and all other activities contemplated hereby. D. Authorization. Execution, delivery, and performance of this Contract and the activities contemplated hereby have been duly and validly authorized by all the requisite corporate action on the part of McDougal. This Contract constitutes legal, valid, and binding obligations of McDougal and is enforceable in accordance with the terms thereof. E. Contractor. McDougal maintains a professional staff and employs, as needed, other qualified specialists experienced in designing and constructing street paving projects, and arc familiar with all laws, rules, and regulations, both state and federal, including, without limitation the applicable laws, regarding the activities contemplated hereby. F. Performance. McDougal will and shall conduct and shall require that any contractor and/or subcontractor shall conduct all activities contemplated by this Contract in a good and workmanlike manner, and comply with all laws, rules, and regulations, both state and fcderal, relating to predictive maintenance services, as contemplated hereby. If any of the activities of McDougal, or omissions of the activities required herein, shall cause, in whole or in part, liability or loss on the part of the City, it shall be deemed that McDougal did not perform said activities (or omitted the performance of said activities) in a good and workmanlike manner. G. Use of Copyrighted Material. McDougal warrants that any materials provided by McDougal for use by City pursuant to this Contract shall not contain any proprietary material owned by any other party that is protected under the Copyright Act or any other similar law. McDougal shall be solely responsible for ensuring that any materials provided by McDougal pursuant to this Contract satisfy this requirement and McDougal agrees to hold City harmless from all liability or loss to which City is exposed on account of McDougal's failure to perform this duty. ARTICLE III. INDEPENDENT CONTRACTOR STATUS McDougal and City agree that McDougal shall perform the duties under this Contract as an independent contractor. McDougal has the sole discretion to determine the manner in which the services are to be performed. ARTICLE IV. INSURANCE A. General. McDougal shall procure and carry, at its sole cost and expense through the life of this Contract, insurance protection hereinafter specified, in form and substance satisfactory to the City. City must approve all policies prior to the commencement of any activities whether performed by McDougal, subcontractor, agents, or third parties. The insurance McDougal Contract Page 3 of 8 carrier must be an insurance company authorized to transact business in the State of Texas and have a Best's Financial rating of A:Vll. A Certificate of Insurance specifying each and all coverage shall be submitted to City prior to the execution of this Contract. All insurance shall be prepared and executed by the insurance company or it's authorized agents and shall contain an endorsement naming the City of Lubbock an additional insured. Written notice of cancellation or any material change will be provided thirty (30) days in advance of cancellation or change. All insurance, other than Workers' Compensation, shall provide a waiver of subrogation in favor of the City of Lubbock, and shall contain cross liability and severability clauses. B. Required Coverage. McDougal shall obtain and maintain policies of insurance throughout the Contract term in limits specified below. Said policies shall contain a Waiver of Subrogation in favor of the City and shall name said parties as additional insureds on same. 1. Worker's Compensation. The Contractor shall elect to obtain worker's compensation coverage pursuant to Section 406.002 of the Texas Labor Code. Further, Contractor shall maintain said coverage throughout the term of this Contract and shall comply with all provisions of Title 5 of the Texas Labor Code to ensure that the Contractor maintains said coverage. Any termination of worker's compensation insurance coverage by Contractor or any cancellation or non -renewal of worker's compensation insurance coverage for the Contractor shall be a material breach of this Contract. 2. Commercial General Liability. McDougal shall maintain Commercial General Liability coverage endorsed to include premises/operations, contractual liability, independent contractors' and completed operations. The policy shall have a minimum of One Million and no/100 Dollars ($1,000,000.00) combined single limit in the aggregate and per occurrence. 3. Commercial Automobile Liability. McDougal shall maintain Commercial Automobile Liability coverage with a minimum of One Million and no/100 Dollars ($1,000,000.00) combined single for Bodily injury and Property Damage and shall include any auto or in the alternative, owned autos, non -owned autos and hired autos. 4. Umbrella. McDougal shall maintain Umbrella coverage with a minimum of One Million and no/100 Dollars ($1,000,000.00). C. Subcontractors. McDougal shall require each subcontractor with whom it contracts to provide activities as contemplated by this Contract, to obtain proof of insurance coverage as set forth herein, and to provide to McDougal, prior to such person performing any such activities, a Certificate of Insurance establishing such coverage. D. McDougal shall construct paving improvements for North Pointe Addition, or provide allowable bond in lieu of actual construction, as required by the Subdivision Regulations of the City of Lubbock. McDougal Contract Page 4 of 8 ARTICLE V. EMPLOYMENT OF AGENTS McDougal may employ or retain agents, consultants, contractors, or third parties, to perform certain duties of McDougal under this Contract provided that McDougal is in no event relieved of any obligation under this Contract. Any such agents, contractors, or third parties retained and/or employed by McDougal shall be required to carry, for the protection and benefit of the City and McDougal and naming said third parties as additional insureds, insurance as described above in this Contract. ARTICLE VI. CONFIDENTIALITY McDougal shall retain all information received from or concerning the City and the City's business in strictest confidence and shall not reveal such information to third parties without prior written consent of the City, unless otherwise required by law. ARTICLE VII. INDEMNITY McDougal shall indemnify and save harmless the City of Lubbock and its officers, agents, and employees from all suits, actions, losses, damages, claims, or liability of any character, type, or description, including without limiting the generality of the foregoing all expenses of litigation, court costs, and attorney's fees for injury or death to any person, or injury to any property, received or sustained by any person or persons or property, arising out of, or occasioned by, the acts of McDougal, its agents or employees, in the execution of this Contract. ARTICLE VIII. COMPLIANCE WITH APPLICABLE LAWS McDougal shall comply with all applicable federal, state and local laws, statutes, ordinances, rules and regulations relating, in any way, manner or form, to the activities under this Contract, and any amendments thereto. McDougal Contract Page 5 of 8 ARTICLE IX. NOTICE A. General. Whenever notice from McDougal to City or City to McDougal is required or permitted by this Contract and no other method of notice is provided, such notice shall be given by (1) actual delivery of the written notice to the other party by hand. (2) facsimile, or other reasonable means (in which case such notice shall be effective upon delivery). or (3) by depositing the written notice in the United States mail, properly addressed to the other party at the address provided in this article, registered or certified mail, return receipt requested, in which case such notice shall be effective on the third business day after such notice is so deposited. are: B. Developer's Address. McDougal's address and numbers for the purposes of notice McDougal Construction, Ltd. 7008 Salem Avenue Lubbock, Texas 79424 Telephone: (806) 797-3162 Facsimile: (806) 797-5731 C. City's Address. The City's address and numbers for the purposes of notice are: City of Lubbock Attn: Larry D. Hertel P. 0. Box 2000 1625 13th Street Lubbock, Texas 79457 Telephone: (806) 775 - 2329 Facsimile: (806) 775 - 3074 D. Change of Address. Either party may change its address or numbers for purposes of notice by giving written notice to the other party, referring specifically to this Contract, and setting forth such new address or numbers. The address or numbers shall become effective on the 15th day after such notice is effective. ARTICLE X. MISCELLANEOUS A. Captions. The captions for the articles and sections in this Contract are inserted in this Contract strictly for the parties' convenience in identifying the provisions to this Contract and shall not be given any effect in construing this Contract. McDougal Contract Page 6 of 8 B. Audit. McDougal shall provide access to its corporate books and records to the City. The City may audit, at its expense and during normal business hours, McDougal's books and records with respect to this Contract between McDougal and City. C. Records. McDougal shall maintain records that are necessary to substantiate the services provided by McDougal. D. Assignability. McDougal may not assign this Contract without the prior written approval of the City. E. Successor and Assigns. This Contract binds and inures to the benefit of the City, McDougal, and their respective successors, legal representatives, and assigns. F. Construction and Venue. THIS CONTRACT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. THE PARTIES HERETO HEREBY IRREVOCABLY CONSENT TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE COURTS OF THE STATE OF TEXAS, COUNTY OF LUBBOCK, FOR THE PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS CONTRACT OR THE ACTIONS THAT ARE CONTEMPLATED HEREBY. G. Severability. If any provision of this Contract is ever held to be invalid or ineffective by any court of competent Jurisdiction with respect to any person or circumstances, the remainder of this Contract and the application of such provision to persons and/or circumstances other than those with respect to which it is held invalid or ineffective shall not be affected thereby. H. Amendment. No amendment, modification, or alteration of the terms of this Contract shall be binding unless such amendment, modification, or alteration is in writing, dated subsequent to this Contract, and duly executed by McDougal and City. I. Entire Agreement, This Contract, contains the Entire Contract between the City and McDougal, and there are no other written or oral promises, conditions, warranties, or representations relating to or affecting the matters contemplated herein. McDougal Contract Page 7 of 8 EXECUTED as of the Effective Date hereof. CITY OF LUBBOCK Y." 0111I 1 ATTEST: Rebe ca Garza, City Secretary APPROVED AS TO CONTENT: :f ��;ADHeAel, City Engineer APPROVED AS TO FORM: A A f \Q I 36ifaldiver, AttorrOy DEVELOPER: McDougal Construction, Ltd. avid Miller, President ml/Don/McDougal Construction Contract March 26, 2007 McDougal Contract Page 8 of 8