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HomeMy WebLinkAboutResolution - 6339 - Agreement - Berryhill Sewer Service Inc - Rental & Servicing Of Chemical Toilets - 06_10_1999Resolution No. 6339 June 10, 1999 Item No. 20 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 an Agreement between the City of Lubbock and Berryhill Sewer Service, Inc. of Lubbock, Texas to obtain the rental and servicing of chemical toilets, and any other related documents. Said Agreement 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 10th day of June 1999. Y SITT MAYOR APPROVED AS TO CONTENT: Recreation Supervisor II APPROVED AS TO FORM: Assistant City Attorney cp CcdocsBerryWI Res May 5, 1999 Resolution No. 6339 June 10, 1999 Item No. 20 CHEMICAL TOILET RENTAL CONTRACT STATE OF TEXAS § COUNTY OF LUBBOCK § This contract, (the "Contract"), effective as of the 10' day of June. 1999, (the "Effective Date"), is by and between the City of Lubbock, (the "City"), a Texas municipal corporation, and BeMhill Sewer Service. Inc. ("Contractor"). WITNESSETH WHEREAS, the City desires to obtain the rental and servicing of chemical toilets; and WHEREAS, Contractor has a professional staff experienced and is qualified to provide rental and servicing of chemical toilets; and NOW THEREFORE, for and in consideration of the terms, covenants and conditions set forth in this Contract, the City and Contractor hereby agree as follows: ARTICLE I. TERM The term of this Contract commences on the Effective Date and continues without interruption for a term of one (1) year from and after the Effective Date. The term may be extended for up to two (2) additional one (1) year terms with the written consent of both parties. ARTICLE II. COMPENSATION Compensation shall be based upon the number of chemical toilets rented and period of said rental and shall be in accordance with Bid No. 99093 dated April 13, 1999. 1 Contract, City of Lubbock & Berryhill Sewer Service, Inc. Chemical Toilet Rental Contract ARTICLE III. TERMINATION a. General. City may terminate this Contract, for any reason, upon thirty (30) days written notice to Contractor. b. Termination and Remedies. In the event Contractor 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 Contractor may, in its sole discretion, terminate this Agreement at any time, with or without cause upon thirty (30) days written notice. ARTICLE IV. REPRESENTATIONS AND WARRANTIES A. Existence. 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. Contractor has the corporate power to enter into and perform this Contract and all other activities contemplated hereby. C. 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 Contractor. This Contract constitutes legal, valid, and binding obligations of the Contractor and is enforceable in accordance with the terms therof. D. Contractor. Contractor maintains a professional staff and employs, as needed, other qualified specialists experienced in providing chemical toilet rental and servicing, and are familiar with all laws, rules, and regulations, both state and federal, including, without limitation the applicable laws, regarding the activities contemplated hereby. E. Performance. Contractor will and 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 federal, relating to predictive maintenance services, as contemplated hereby. If any of the activities of Contractor, 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 Contractor did not perform said activities (or omitted the performance of said activities) in a good and workmanlike manner. 2 Contract, City of Lubbock & Berryhill Sewer Service, Inc. Chemical Toilet Rental Contract F. Use of Copyrighted Material. Contractor warrants that any materials provided by Contractor 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. Contractor shall be solely responsible for ensuring that any materials provided by Contractor pursuant to this Contract satisfy this requirement and Contractor agrees to hold City harmless from all liability or loss to which City is exposed on account of Contractor's failure to perform this duty. ARTICLE V. SCOPE OF WORK Contractor shall provide chemical toilet rental and related services as specified in Bid No. 99093 (hereinafter called the "Work"). The Work shall be performed at various locations within the City of Lubbock. Contractor shall deliver chemical toilets within twenty-four hours after receipt of order. Contractor shall provide all chemicals, water and supplies necessary. For trailer units with electricity requirements for lights, air-conditioning, and heating, the City shall provide the electrical connection point and electricity. Chemical toilets shall be cleaned as often as requested, generally either weekly or twice per week. Cleaning consists of removing wastes, mopping with soap based chemicals, and re- furnishing the unit with the following: five gallons of fresh chemical for the tank, two rolls of toilet paper, and one deodorant block. Chemical toilets shall be scheduled for cleaning on the same day or days of each week for consistent cleaning. Additional cleanings due to natural problems are to be free of charge. Contractor shall move chemical toilets to another job site location free of charge on the day it is cleaned providing Contractor is notified a minimum of twenty-four hours in advance. Contractor shall empty holding tanks once per week, or as needed. The City shall provide Contractor with name(s) of City representative(s) authorized to initiate orders and provide locations for toilet placement. Placement shall be at a City facility, project site, or other location within the City of Lubbock. At the City's option, the City may designate locations for portable toilets to handle emergencies or natural disasters and Contractor shall be provided with a list of such locations as ,it is made available. Contractor shall provide the City with the name and emergency phone number of Contractor's representative responsible for handling service requests during and after normal business hours. 3 Contract, City of Lubbock & Berryhill Sewer Service, Inc. Chemical Toilet Rental Contract ARTICLE VI. INDEPENDENT CONTRACTOR STATUS Contractor and City agree that Contractor shall perform the duties under this Contract as an independent contractor. Contractor has the sole discretion to determine the manner in which the services are to be performed. ARTICLE VII. INSURANCE A. General. Contractor 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 Contractor, subcontractor, agents, or third parties. The insurance 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. Contractor shall obtain and maintain policies of insurance throughout the Contract term in limits specified below. 1. Worker's Compensation. Contractor shall maintain Workers' Compensation and Employer's Liability insurance coverage as required by statute or coverage approved by the City Risk Management Coordinator. 2. Commercial General Liability. Contractor 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 Five Hundred Thousand and no/100 Dollars ($500,000.00) combined single limit in the aggregate and per occurrence. 3. Commercial Automobile Liability. Contractor shall maintain Commercial Automobile Liability coverage with a minimum of Five Hundred Thousand and no/100 Dollars ($500,000) 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. C. Subcontractors. Contractor shall require each subcontractor with whom it contracts to provide activities as contemplated by this Contract, to obtain proof of insurance coverage as set 4 Contract, City of Lubbock & Berryhill Sewer Service, Inc. Chemical Toilet Rental Contract forth herein, and to provide to Contractor, prior to such person performing any such activities, a Certificate of Insurance establishing such coverage. ARTICLE VIII. EMPLOYMENT OF AGENTS Contractor may employ or retain agents, consultants, contractors, or third parties, to perform certain duties of Contractor under this Contract provided that Contractor is in no event relieved of any obligation under this Contract. Any such agents, contractors, or third parties retained and/or employed by Contractor shall be required to carry, for the protection and benefit of the City and Contractor and naming said third parties as additional insureds, insurance as described above in this Contract. ARTICLE IX. CONFIDENTIALITY 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. ARTICLE X. INDEMNITY Contractor 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 Contractor, its agents or employees, in the execution of this Contract. ARTICLE XI. COMIPLIANCE WITH APPLICABLE LAWS 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 Contract, and any amendments thereto. 5 Contract, City of Lubbock & Berryhill Sewer Service, Inc. Chemical Toilet Rental Contract ARTICLE XII. NOTICE A. General. Whenever notice from Contractor to City or City to Contractor 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. Contractor's Address. Contractor's address and numbers for the purposes of notice Berryhill Sewer Service, Inc. Attn: Chris K. Berryhill, Operations Supervisor PO Box 5009 Lubbock, TX 79408 Telephone: (806) 762-1066 Facsimile: (806) 762-1176 C. City's Address. The City's address and numbers for the purposes of notice are: City of Lubbock Attn: Ivette Eads, Outdoor Recreation Supervisor P. 0. Box 2000 1625 13th Street Lubbock, Texas 79457 Telephone: (806) 775 - 2690 Facsimile: (806) 775 - 2686 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 XIII. 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. 6 Contract, City of Lubbock & Berryhill Sewer Service, Inc. Chemical Toilet Rental Contract B. Audit. 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, Contractor's books and records with respect to this Contract between Contractor and City. C. Records. Contractor shall maintain records that are necessary to substantiate the services provided by Contractor D. Assignability. Contractor 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, Contractor, 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 Contractor and City. I. Entire Agreement. This Contract, contains the Entire Contract between the City and Contractor, and there are no other written or oral promises, conditions, warranties, or representations relating to or affecting the matters contemplated herein. 7 Contract, City of Lubbock & Berryhill Sewer Service, Inc. Chemical Toilet Rental Contract EXECUTED as of the Effective Date hereof. LUBBOCKCITY OF AT ST: Kaythi arnell, City Secretary APPROVED AS TO CONTENT: �S Ivette Eads Outdoor Recreation Supervisor JMK:cp Cityatt/JohnBerryhillSewerSvc-City.Contract June 8, 1999 BERRYHILL SEWER SERVICE, INC. By: CHRIS K. BERRYHILL OPERATIONS SUPERVISOR APPROVED AS TO FORM: " Z- ohn M. Knight Assistant City Attorney 8 Contract, City of Lubbock & Berryhill Sewer Service, Inc. Chemical Toilet Rental Contract