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HomeMy WebLinkAboutResolution - 2004-R0363 - Contract For Radio Towers - Western Towers - 07_15_2004Resolution No. 2004-RO363 July 15, 2004 Item No. 50 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 for radio towers, by and between the City of Lubbock and Western Towers of San Angelo, Texas, 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 this 15th day of July '2004. Zo ""/ ARC MCDOUGAL, MAYOR ATTEST: Rebecca Garza, City Secretary APPROVED AS TO CONTENT: 1. Victor Kilnian, Purchasing Manager APPROVED AS TO FORM: Assist4rit,City Attorney gs/ccdocs/Contract-Western Towers.res June 30, 2004 Resolution No. 2004-RO363 July 15, 2004 Item No. 50 FABRICATION AND CONSTRUCTION CONTRACT City of Lubbock 590' Radio Communications Tower Reference: City of Lubbock RFP #057-"RW, Radio Tower This agreement is made this 15th day of July, 2004, between THE CITY OF LUBBOCK ("OWNER") and WILBUR L. ANDERSON, INC. d/b/a WESTERN TOWERS, a Texas corporation ("CONTRACTOR") with respect to the following described Project: Fabrication and construction of one custom-built 590-foot guyed latticework galvanized steel radio communications tower ('Tower") to be erected on Owner's site in Lubbock, Texas according to the Drawings and Specifications set forth in Exhibit "A" attached hereto and incorporated herein. All parties to this contract agree as set forth below. Article 1. EXTENT OF AGREEMENT 1.1 This contract constitutes the entire agreement between the parties and there are no agreements, understandings, restrictions, warranties or representations between the parties other than those set forth herein or provided for herein. Article 2. CONTRACTOR'S RESPONSIBLITIES 2.1 The CONTRACTOR is responsible for designing the Tower, fabricating the Tower, transporting the Tower to the job site in Lubbock, Texas and erecting the Tower on the foundation provided and installed by the CONTRACTOR in accordance with the Drawings and Specifications provided by the City of Lubbock in RFP #057-04/RW (Radio Tower). 2.2 The CONTRACTOR shall provide all construction supervision, inspection, labor, materials, tools construction equipment and subcontracted items as necessary to comply with paragraph 2.1 above. 2.3 At the completion of the erection of the Tower, the CONTRACTOR shall remove all waste and surplus material and rubbish from and around the construction site. 2.4 The CONTRACTOR shall take reasonable precautions for the safety of its employees and subcontractors and shall comply with applicable provisions of federal, state and municipal safety laws. CONTRACTOR shall erect and properly maintain reasonable safeguards for the protection of the public who may come around the work site. It is understood and agreed, however, that the CONTRACTOR shall have no responsibility for the elimination or abatement of safety hazards created or otherwise resulting from work at the job site carried on by other persons or firms not employed by or contracted by CONTRACTOR. OWNER agrees to cause any such separate contractors and workers to abide by and fully adhere to all applicable provisions of federal, state and municipal safety laws and regulations and to comply with all reasonable requests and directions of CONTRACTOR for the elimination or abatement of safety hazards on the job site. 2.5 The CONTRACTOR, with the assistance of OWNER'S personnel, will direct the checkout of utilities and operations of systems and equipment for readiness. 2.6 CONTRACTOR warrants that title to the Tower and all materials and equipment covered by the Drawings and Specifications will pass to OWNER upon receipt of the final payment provided for in Article 5. 2.7 It is the OWNER'S responsibility to make certain that the Tower is in accordance with the applicable laws, statutes, building codes and regulations. If the CONTRACTOR observes that any part of the Tower is at variance therewith in any respect, he shall promptly notify the OWNER in writing and any necessary changes shall be accomplished by appropriate modifications agreed to by the parties. 2.8 CONTRACTOR shall provide insurance for the Project as provided in paragraph 6.3 and 6.4 below. 2.9 All fees, service charges, cost of and expense to obtain permits and/or contractor's license shall be the responsibility of OWNER. CONTRACTOR'S price does not include any federal, state or local sales or use taxes. Article 3.OWNER'S RESPONSIBILITIES 3.1 OWNER represents that it has provided to CONTRACTOR full information regarding OWNER'S requirements for the Tower and that the Drawings and Specifications referenced in RFP #057-04/RW (Radio Tower) completely and accurately set forth the complete work which is to be performed by CONTRACTOR. 3.2 OWNER shall secure all required certificates of inspection, building permits and other necessary permits, testing and approval for (1) erection of the Tower, and (2) operation of the Tower. 3.3 OWNER shall secure and pay for all approvals, easements, assessments and charges required for the construction and use of the Tower. 3.4 OWNER shall: furnish the site; furnish reasonable access to the site; provide one tagline path 25' wide and equal in length to the height of the tower; grade the area immediately surrounding the site so as to permit the moving of trucks, cranes and/or other equipment required or reasonably convenient to handle and erect the tower; clear an area 250' X 250' adjacent to the center of the tower to permit unloading, sorting, assembling and working space; provide all necessary surveys describing the physical characteristics, soils reports and subsurface investigations; provide electrical power sufficient to operate CONTRACTOR'S equipment to the site. 3.5 If OWNER becomes aware of any fault or defect in the Project, the Drawings and Specifications or non- conformance with the Drawings & Specifications, it shall give prompt written notice thereof to CONTRACTOR. 3.6 OWNER shall have no contractual obligation to the CONTRACTOR'S subcontractors and shall 2 communicate with such subcontractors only through CONTRACTOR. 3.7 OWNER shall be responsible for acquiring and installing electrical and other utilities to the Tower. 3.8. OWNER shall be responsible for all sales, use or other similar taxes due with respect to the construction, sale and use of the Tower and shall indemnify and hold CONTRACTOR harmless with respect to the same. 3.9 OWNER shall be responsible for and provide adequate job site security. Article 4. CONTRACT TIME SCHEDULE 4.1 The work to be performed under this contract shall commence on or before July 19, 2004 and shall proceed without delay in a workmanlike fashion until the same is completed. The work shall be substantially completed on or about October 2, 2004 (75 calendar days) subject to the provisions of paragraph 4.2 below. 4.2 If CONTRACTOR is delayed at any time in the progress of the Project by an act of the OWNER, any separate contractor employed by OWNER, failure of OWNER to timely and properly construct the foundation, changes ordered by OWNER, fire, delay in transportation not reasonably controllable by CONTRACTOR, adverse weather conditions not reasonably anticipatable, or other causes beyond CONTRACTOR'S control, then the date for completion shall be extended accordingly. 4.3 If CONTRACTOR is not timely paid any payment due under Article 5, CONTRACTOR may cease work at CONTRACTOR'S discretion until the payment is made and the date for completion shall be extended during such time. Article 5. PAYMENT 5.1 In consideration of the performance of this contract, OWNER agrees to pay to CONTRACTOR in San Angelo, Tom Green County, Texas the sum of $308,219.76, payable 30 days after completion of installation of the Tower ("Final Payment"). All payments shall be made from OWNER to CONTRACTOR by certified check or bank wire transfer. 5.2 Payments that are due but unpaid shall bear interest at the maximum amount of nonusurious interest that may be contracted for, taken, reserved, charged, or received under applicable law. 5.3 Before issuance of the Final Payment, OWNER may request reasonably satisfactory evidence that all payrolls, material bills and other indebtedness connected with the Project have been paid or otherwise satisfied. 5.4 The making of the Final Payment shall constitute a waiver of all claims by the OWNER except those rising from: 3 a. Unsettled liens; b. Improper workmanship or defective materials appearing within fifteen (15) years after the date of Final Payment; c. Failure of the structure to comply with the Drawings and Specifications which failure is reasonably identifiable within one year of Final Payment. Article 6. INSURANCE AND INDEMNITY 6.1 CONTRACTOR agrees to indemnify and hold harmless the OWNER and their agents and employees for bodily injury and property damage, including but not limited to attorneys fees, resulting from the performance of CONTRACTOR under this contract. 6.2 OWNER shall cause any other contractor who may have a contract with OWNER to perform work in and around the job site to agree to indemnify OWNER and CONTRACTOR and hold them harmless from all claims for bodily injury and property damage that may arise from that contractor's operations. 6.3 CONTRACTOR shall purchase and maintain such insurance as will protect it from the claims set forth below which may arise out of or result from CONTRACTOR'S operations under this contract: a. Claims under workers' compensation, disability benefit and other similar employee benefit acts which are applicable to the work to be performed by CONTRACTOR b. Claims for damages because of bodily injury or death of its employees under any applicable employer's liability law; c. Claims for damages, other than to the Tower itself, because of injury to or destruction of tangible property. 6.4 CONTRACTOR shall purchase within 10 days of award of contract valid Payment and Performance Bonds, pursuant to section 2253.021, Texas Government Code, in the amount of 100% of the total cost of this project This policy shall include as named insureds both OWNER and CONTRACTOR 6.5 If OWNER finds it necessary to occupy or use the Tower prior to its completion, such occupancy shall not commence prior to a time mutually agreed to by the OWNER and CONTRACTOR and to which the insurance company providing the property insurance has consented by endorsement to the policy. 6.6 CONTRACTOR shall file a copy of all insurance policies with OWNER before an exposure to loss may occur. OWNER will be given 60 days notice of cancellation, non -renewal or any change in endorsement. 6.7 Any insured loss shall be adjusted between OWNER and CONTRACTOR as their interests may appear. 6.8 Upon notice of the date of completion, OWNER shall have seven (7) days from such date to accept or reject the structure. If no notice or rejection is received by CONTRACTOR within such time, the structure shall be considered OWNER'S property and CONTRACTOR'S Property Damage Insurance, if any, on such structure shall be canceled; or should OWNER commence broadcast operations from the tower before it is accepted then all of CONTRACTOR'S insurance will terminate after the first day of such broadcast operations. 4 6.9 To the fullest extent allowed by the parties' insurance policies, OWNER and CONTRACTOR waive all rights against each other and subcontractors for damages caused by perils covered by insurance provided under paragraphs 6.3 and 6.4, except such rights as they may have to the proceeds of such insurance. 6.10 OWNER and CONTRACTOR waive all rights against each other and subcontractors for loss or damage to any equipment used in connection with the Project which loss is covered by any property insurance. 6.11 OWNER waives subrogation against CONTRACTOR and subcontractors on all property and consequential loss policies carried by OWNER on adjacent properties and under property and consequential loss policies purchased for the Project after its completion. 6.12 If the policies of insurance referred to in this Article 6 require an endorsement to provide for continued coverage where there is a waiver of subrogation, the owners of such policies will cause them to be so endorsed. Article 7. TERMINATION AND OWNER'S RIGHT TO PERFORM 7.1 If the Project is stopped for a period of thirty (30) days under an order of any court or other public authority having jurisdiction, or as a result of an act of government (such as a declaration of a national emergency making materials unavailable) through no act or fault of CONTRACTOR or if the Project is stopped for a period of thirty (30) days by the CONTRACTOR for the OWNER'S failure to make payment as provided for herein, then the CONTRACTOR may, upon seven (7) days written notice to OWNER, terminate this contract and recover from OWNER payment for all work executed and the CONTRACTOR'S fee earned to date, and for any loss sustained with respect to any materials, equipment, tools, construction equipment and machinery, including reasonable profit and damages. 7.2 If CONTRACTOR fails to timely perform any of its obligations under this contract, OWNER may, after seven (7) days written notice to CONTRACTOR, during which CONTRACTOR fails to perform such obligation, make good such deficiencies. In that event, the contract price shall be reduced by the cost to OWNER of making good such deficiencies. Article 8. ASSIGNMENT AND GOVERNING LAW 8.1 Neither OWNER nor CONTRACTOR shall assign its interest in this agreement without the prior written consent of the other except as follows: CONTRACTOR is authorized to subcontract portions of the Project as determined by CONTRACTOR. 8.2 This agreement has been entered into in the State of Texas and shall be governed by the law of the State of Texas with respect to all issues arising during the fabrication of the Tower and the transportation of the same and shall be governed by the law of the State of Texas thereafter. 5 Article 9. RESOLUTIONS APPROVING AGREEMENT 9.1 Each of the signatories below warrant that they have authority to represent and bind their respective corporations and/or legal organizations. EXECUTED this 15th day of July, 2004 OWNER: City of Lubbock 1625 13th St. Room #L04 Lubbock, TX 79401-3830 BY: el( / Mar A cDoug Mayor Attested By: Rebecca Garza, City Secretary Approved as to content: CONTRACTOR: Wilbur L. Anderson dba Western Towers 320 West 26th St. San Angelo, TX 76903-2824 BY: Charles A. Anderson, President eMark Yearwood, Managing Director of Information Technology Appr d as to fo : ' &E)e Don Vandiver, Attorney of Counsel 6