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HomeMy WebLinkAboutResolution - 2021-R0178 - Contract 15878 with James Padgett Painting 5.11.2021Resolution No. 2021-R0178 Item No. 8.19 May 11, 2021 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock, Professional Services Agreement No. 15878 for installation of a Public Art Project in the Broadway Tunnel, generally located between Avenue E and Avenue A in Downtown Lubbock, by and between the City of Lubbock and James Padgett Painting, Inc., and 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 City Council. Passed by the City Council on May 11, 2021 DANIEL M. POPE, MAYOR ATTEST: Rebe Garza, City Secrets APPROVED AS TO CONTENT: Jesica c {achern, Assistant City Manager APPROVED AS TO FORM: ccdocs/RES.PSA-No.15878 Installation of a Public Art Project in the Broadway Tunnel April 22, 2021 Resolution No. 2021-R0178 PROFESSIONAL SERVICES AGREEMENT STATE OF TEXAS § COUNTY OF LUBBOCK § This Professional Service Agreement ("Agreement") Contract No. 15878 is entered into this 11 th day of MaY , 2021, is by and between the City of Lubbock (the "City"), a Texas home rule municipal corporation, and James Padgett Painting, Inc., (the "Contractor"), a Texas corporation. WITNESSETH WHEREAS, The City desires to contract with the Contractor to provide professional services for installation of a Public Art Project in the Broadway Tunnel, generally located between Avenue E and Avenue A in Downtown Lubbock, (the "Activities"); and WHEREAS, the Contractor has a professional staff experienced and is qualified to provide professional painting services related to Activities, and will provide the services, as defined below, for the price provided herein, said price stipulated by the City and the Engineer to be a fair and reasonable price; and WHEREAS, the City desires to contract with the Contractor to provide professional services related to the Activities, and Contractor desires to provide the Services related to same. NOW THEREFORE, for and in consideration of the terms, covenants and conditions set forth in this Agreement, the City and the Contractor hereby agree as follows: ARTICLE I. TERM The term of this Agreement commences on the Effective Date and continues without interruption for a term of 90 days. If the Contractor determines that additional time is required to complete the Services, the Business Development Director may, but is not obligated to, in his or her discretion, execute an agreement to grant up to an additional six (6) months of time so long as the amount of the consideration does not increase. An amendment to this Agreement resulting in an increase in the amount of the consideration must be approved by the City acting through its governing body. Page 1 of 11 ARTICLE II. SERVICES AND COMPENSATION A. The Contractor shall conduct all activities, and within such timeframes, as set forth on Exhibit "A", attached hereto (the "Services"). B. The Contractor shall receive as consideration to be paid for the performance of the Services, in an amount not to exceed $73,341, as set forth in Exhibit "A". ARTICLE III. TERMINATION A. General. The City may terminate this Agreement, for any reason or convenience, upon thirty (30) days written notice to the Contractor. In the event this Agreement is so terminated, the City shall only pay the Contractor for services actually performed by the Contractor up to the date the Contractor is deemed to have received notice of termination, as provided herein. B. Termination and Remedies. In the event the Contractor breaches any term and/or provision of this Agreement, the City shall be entitled to exercise any right or remedy available to it by this Agreement, at law, equity, or otherwise, including without limitation, termination of this Agreement and assertion of an action for damages and/or injunctive relief. The exercise of any right or remedy shall not preclude the concurrent or subsequent exercise of any right or remedy and all rights and remedies shall be cumulative. ARTICLE IV. NON - ARBITRATION The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, this provision shall control. ARTICLE V. REPRESENTATIONS AND WARRANTIES A. Existence. The Contractor 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. B. Corporate Power. The Contractor has the corporate power to enter into and perform this Agreement and all other activities contemplated hereby. Page 2 of 11 C. Authorization. Execution, delivery, and performance of this Agreement and the activities contemplated hereby have been duly and validly authorized by all the requisite corporate action on the part of the Contractor. This Agreement constitutes legal, valid, and binding obligations of the Contractor and is enforceable in accordance with the terms thereof. D. Contractor. The Contractor maintains a professional staff and employs, as needed, other qualified specialists experienced in providing the Services, and is familiar with all laws, rules, and regulations, both state and federal, including, without limitation the applicable laws, regarding the Activities contemplated hereby. E. Performance. The Contractor will and shall conduct all activities contemplated by this Agreement in accordance with the standard of care, skill and diligence normally provided by a professional person in performance of similar professional services, and comply with all applicable laws, rules, and regulations, both state and federal, relating to professional services, as contemplated hereby. F. Use of Copyrighted Material. The Contractor warrants that any materials provided by the Contractor for use by City pursuant to this Agreement shall not contain any proprietary material owned by any other party that is protected under the Copyright Act or any other law, statute, rule, order, regulation, ordinance or contractual obligation relating to the use or reproduction of materials. The Contractor shall be solely responsible for ensuring that any materials provided by the Contractor pursuant to this Agreement satisfy this requirement and the Contractor agrees to indemnify and hold City harmless from all liability or loss caused to City or to which City is exposed on account of the Contractor's failure to perform this duty. ARTICLE VI. SCOPE OF WORK The Contractor shall accomplish the following: Professional Services related to the Services, as provided in Exhibit "A", attached hereto and made a part hereof. ARTICLE VII. INDEPENDENT CONTRACTOR STATUS The Contractor and the City agree that the Contractor shall perform the duties under this Agreement as an independent contractor and shall be considered as independent contractor under this Agreement and/or in its activities hereunder for all purposes. The Contractor has the sole discretion to determine the manner in which the Services are to be performed. During the performance of the Services under this Agreement, the Contractor and the Contractor's employees and/or sub -consultants, will not be considered, for any purpose, employees or agents of the City within the meaning or the application of any federal, state or local law or regulation, including without limitation, laws, rules or regulations regarding Page 3 of 11 or related to unemployment insurance, old age benefits, workers compensation, labor, personal injury or taxes of any kind. ARTICLE VIII. INSURANCE The Contactor shall procure and carry, at its sole cost and expense through the life of this Agreement, except as otherwise provided herein, insurance protection as hereinafter specified, in form and substance satisfactory to the City, carried with an insurance company authorized to transact business in the state of Texas, covering all aspects and risks of loss of all operations in connection with this Agreement, including without limitation, the indemnity obligations set forth herein. The Contractor shall obtain and maintain in full force and effect during the term of this Agreement, and shall cause each approved subcontractor or sub -consultant of the Contractor to obtain and maintain in full force and effect during the term of this Agreement, commercial general liability, professional liability and automobile liability coverage for non -owned and hired vehicles with insurance carriers admitted to do business in the state of Texas. The insurance companies must carry a Best's Rating of A-VII or better. Except for Professional Liability, the policies will be written on an occurrence basis, subject to the following minimum limits of liability: Commercial General Liability: Per Occurrence Single Limit: $1,000,000 General Aggregate Limit: $2,000,000 Professional Liability: Combined Single Limit: $2,000,000 Automobile Liability: Combined Single Limit for any auto: $1,000,000 Per Occurrence Employer's Liability: Per Occurrence Single Limit: $1,000,000 Worker's Compensation Per Occurrence Single Limit: $500,000 The Contractor shall further cause any approved subcontractor or sub -consultant to procure and carry, during the term of this Agreement, the insurance coverage required of Contractor herein, including without limitation, Professional Liability coverage, protecting the City against losses caused by the professional negligence of the approved subcontractor or sub -consultant. The City shall be listed as a primary and noncontributory additional insured with respect to the Automobile Liability and Commercial General Liability and shall be granted a waiver of subrogation under those policies. The Contractor shall provide a Certificate of Insurance to the City as evidence of coverage. Page 4 of 11 The Certificate shall provide 30 days' notice of cancellation. A copy of the additional insured endorsement and waiver of subrogation attached to the policy shall be included in the Certificate. The Contractor shall elect to obtain worker's compensation coverage pursuant to Section 406.002 of the Texas Labor Code. Further, the Contractor shall maintain said coverage throughout the term of this Agreement and shall comply with all provisions of Title 5 of the Texas Labor Code to ensure that the Contractor maintains said coverage. The Contractor may maintain Occupational Accident and Disability Insurance in lieu of Worker's Compensation. In either event, the policy must be endorsed to include a waiver of subrogation in favor of the City. If at any time during the life of the Agreement or any extension hereof, the Contractor fails to maintain the required insurance in full force and effect, the Contractor shall be in breach hereof and all work under the Agreement shall be discontinued immediately. Notwithstanding anything contained herein to the contrary, the professional liability policy shall be maintained at the Contractor's sole cost and expense. The retroactive date shall be no later than the commencement of the performance of this Agreement and the discovery period (possibly through tail coverage) shall be no less than 10 years after the completion of the Services provided for in this Agreement. The provisions of this Article VIII shall survive the termination or expiration of this Agreement. ARTICLE IX. EMPLOYMENT OF AGENTS/RETAINING OF CONSULTANTS The Contractor may employ or retain consultants, contractors, or third parties (any of which are referred to herein as "Sub -consultant"), to perform certain duties of Contractor, as set forth on Exhibit "A", attached hereto, under this Agreement, provided that the City approves the retaining of Sub - consultants. The Contractor is at all times responsible to the City to perform the Services as provided in this Agreement and the Contractor is in no event relieved of any obligation under this Agreement upon retainage of any approved Sub -consultant. Any agent and/or Sub -consultant retained and/or employed by the Contractor shall be required by the Contractor to carry, for the protection and benefit of the City and the Contractor and naming said third parties as additional insureds, insurance as described above required to be carried by the Contractor in this Agreement. The Contractor represents that such services are either under applicable value thresholds or are otherwise exempt from notice and/or bid requirements under Texas Law. ARTICLE X. CONFIDENTIALITY The Contractor 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. Page 5 of 11 ARTICLE XI. INDEMNITY THE CONTRACTOR SHALL INDEMNIFY AND SAVE HARMLESS THE CITY OF LUBBOCK AND ITS ELECTED OFFICIALS, OFFICERS, AGENTS, AND EMPLOYEES FROM ALL SUITS, ACTIONS, LOSSES, DAMAGES, CLAIMS, OR LIABILITY OF ANY KIND, 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, TO THE EXTENT ARISING OUT OF, RELATED TO OR OCCASIONED BY, THE NEGLIGENT ACTS OF THE CONTRACTOR, ITS AGENTS, EMPLOYEES, AND/OR SUBCONSULTANTS, RELATED TO THE PERFORMANCE, OPERATIONS OR OMISSIONS UNDER THIS AGREEMENT AND/OR THE USE OR OCCUPATION OF CITY OWNED PROPERTY. THE INDEMNITY OBLIGATION PROVIDED HEREIN SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT. ARTICLE XII. COMPLIANCE WITH APPLICABLE LAWS The Contractor 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 Agreement, and any amendments thereto. ARTICLE XIII. NOTICE A. General. Whenever notice from the Contractor to the City or the City to the Contractor is required or permitted by this Agreement 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 (in which case such notice shall be effective upon delivery); (2) facsimile (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. B. Contractor's Address. The Contractor's address and numbers for the purposes of notice are: James Padgett Painting, Inc. James Padgett 7204 Joliet, Suite 5 Lubbock, TX 79423 Page 6 of 11 Telephone: 806.549.2366 Email: james@jamespadgett.com C. City's Address. The City's address and numbers for the purposes of notice are: Brianna Gerardi, Business Development Director City of Lubbock P.O. Box 2000 1314 Avenue K Lubbock, Texas 79457 Email: bgerardi@mylubbock.us Telephone: 806.775.3082 D. Change of Address. Either party may change its address or numbers for purposes of notice by giving written notice to the other party as provided herein, referring specifically to this Agreement, 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 XIV. CITY -PROVIDED DATA AND RESPONSIBILITIES Provision of Data. The City shall furnish the Contractor non -confidential studies, reports and other available data in the possession of the City pertinent to the Contractor's Services, so long as the City is entitled to rely on such studies, reports and other data for the performance of the Contractor's Services under this Agreement (the "Provided Data"). The Contractor shall be entitled to use and rely, so long as such reliance is reasonable, upon all such Provided Data. ARTICLE XV. MISCELLANEOUS A. Captions. The captions for the articles and sections in this Agreement are inserted in this Agreement strictly for the parties' convenience in identifying the provisions to this Agreement and shall not be given any effect in construing this Agreement. B. Audit. The Contractor shall provide access to its corporate books and records to the City. The City may audit, at its expense and during normal business hours, the Contractor's books and records with respect to this Agreement between the Contractor and the City. C. Records. The Contractor shall maintain records that are necessary to substantiate the services provided by the Contractor. D. Assignability. The Contractor may not assign this Agreement without the prior written approval of the City. Page 7 of 11 E. Successor and Assigns. This Agreement binds and inures to the benefit of the City and the Contractor, and in the case of the City, its respective successors, legal representatives, and assigns, and in the case of the Contractor, its permitted successors and assigns. F. Construction and Venue. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. THIS AGREEMENT IS PERFORMABLE IN LUBBOCK COUNTY, TEXAS. THE PARTIES HERETO HEREBY IRREVOCABLY CONSENT TO THE SOLE AND EXCLUSIVE JURISDICTION AND VENUE OF THE COURTS OF COMPETENT JURISDICTION OF THE STATE OF TEXAS, COUNTY OF LUBBOCK, FOR THE PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS THAT ARE CONTEMPLATED HEREBY. G. Severability. If any provision of this Agreement is ever held to be invalid or ineffective by any court of competent jurisdiction with respect to any person or circumstance, the remainder of this Agreement 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 Agreement shall be binding unless such amendment, modification, or alteration is in writing, dated subsequent to this Agreement, and duly authorized and executed by the Contractor and the City. I. Entire Agreement. This Agreement, including Exhibit "A" attached hereto, contains the entire agreement between the City and the Contractor, and there are no other written or oral promises, conditions, warranties, or representations relating to or affecting the matters contemplated herein. J. No Joint Enterprise. Nothing contained herein shall be construed to imply a joint venture, joint enterprise, partnership or principal — agent relationship between the Contractor and the City. K. Documents Owned by City. Any and all documents, drawings and specifications prepared by Contractor as part of the Services hereunder, shall become the property of the City when the Contractor has been compensated as set forth in Article II, above. The Contractor shall make copies of any and all work products for its files. L. Notice of Waiver. A waiver by either the City or the Contractor of a breach of this Agreement must be in writing and duly authorized to be effective. In the event either party shall execute and deliver such waiver, such waiver shall not affect the waiving party's rights with respect to any other or subsequent breach. Page 8 of 11 M. Third Party Activities. Nothing in this Agreement shall be construed to provide any rights or benefits whatsoever to any party other than the City and the Contractor. N. Non -Appropriation. All funds for payment by the City under this Agreement are subject to the availability of an annual appropriation for this purpose by the City. In the event of non -appropriation of funds by the City Council of the City of Lubbock for the services provided under the Agreement, the City will terminate the Agreement, without termination charge or other liability, on the last day of the then - current fiscal year or when the appropriation made for the then -current year for the services covered by this Agreement is spent, whichever event occurs first (the "Non -Appropriation Date"). If at any time funds are not appropriated for the continuance of this Agreement, cancellation shall be accepted by the Contractor on thirty (30) days prior written notice, but failure to give such notice shall be of no effect and the City shall not be obligated under this Agreement beyond the Non -Appropriation Date. O. Contracts with Companies Engaged in Business with Iran, Sudan, or Foreign Terrorist Organization Prohibited. Pursuant to Section 2252.152 of the Texas Government Code, prohibits the City from entering into a contract with a vendor that is identified by The Comptroller as a company known to have contracts with or provide supplies or service with Iran, Sudan or a foreign terrorist organization P. No Boycott of Israel. Pursuant to Section 2271.002 of the Texas Government Code, a) This section applies only to a contract that: (1) is between a governmental entity and a company with 10 or more full-time employees; and (2) has a value of $100,000 or more that is to be paid wholly or partly from public funds of the governmental entity. (b) A governmental entity may not enter into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. Q. Texas Public Information Act. The requirements of Subchapter J, Chapter 552, Government Code, may apply to this contract and the contractor or vendor agrees that the contract can be terminated if the contractor or vendor knowingly or intentionally fails to comply with a requirement of that subchapter. To the extent Subchapter J, Chapter 552, Government Code applies to this agreement, Contractor agrees to: (1) preserve all contracting information related to the contract as provided by the records retention requirements applicable to the governmental body for the duration of the contract; (2) promptly provide to the governmental body any contracting information related to the contract that is in the custody or possession of the entity on request of the governmental body; and (3) on completion of the contract, either: (A) provide at no cost to the governmental body all contracting information related to the contract that is in the custody or possession of the entity; or (B) preserve the contracting information related to the contract as provided by the records retention requirements applicable to the governmental body. Page 9 of 11 REMAINDER OF PAGE LEFT BLANK INTENTIONALLY EXECUTED as of the Effective Date hereof. CITY OF LUBBOCK ATTEST: It Qg.4 1, j � Reb a Garza, City Secret t APPROVED AS TO CON T: Jesica McEachern, Assistant City Manager APPROVED AS TO FORM: K lli Leisure, Assistant City Attorney LIOV DANIEL M. POPE, MAYOR Firm James Padgett Painting, Inc. By: J adgett Page 10 of 11 Texas Government Code Subtitle F, Title 10, Chapter 2271 (Person name), the undersigned representative of James Padgett Painting, Inc. thereafter referred to as company) Pursuant to Section 2271.002, applies only to a contract that: (1) is between a governmental entity and a company with 10 or more full-time employees; and (2) has a value of $100,000 or more that is to be paid wholly or partly from public funds of the governmental entity. Verify that the company named -above, under the provisions of Subtitle F, Title 10, Government Code Chapter 2271: 1. Does not boycott Israel currently; and 2. Will not boycott Israel during the term of the contract the above -named Company, business or individual with the City of Lubbock acting by and through City of Lubbock. L�- 2p - 21 Date Authorized Signature Page 11 of 11 James Padgett Painting, Inc 7204 Joliet, Suite 5 Lubbock, Texas 79423 Name / Address City of Lubbock 1208 14th Street Lubbock, TX 79423 Estimate Date Estimate # 4i12/2021 5545 P.O. No. james@jamespadgett.com 806-549-2366 Total $73,341.00