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HomeMy WebLinkAboutResolution - 6285 - Contract - TTU - Economic Development Assistance, TTWSRC - 04_22_1999Resolution No. 6285 Item No. 34 April 22, 1999 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 by and between the City of Lubbock and Texas Tech University to provide economic development assistance to the Texas Tech Wind Science and Research Center. 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 22Ad day of ATTEST: KaythUctary arnell City S APPROVED AS TO CONTENT: Kevin Walker Business Itiaison Officer APPROVED AS TO FORM: April 1999. W Y SIT , MAYOR William de Haas Competition and Contracts Manager/Attomey Cedoes/DEAAG Contract with TTU.Res April 22, 1999 Resolution No. 6285 Item No. 34 April 22, 1999 CITY OF LUBBOCK DEFENSE ECONOMIC ADJUSTMENT ASSISTANCE GRANT STATE OF TEXAS COUNTY OF LUBBOCK SECTION 1. PARTIES TO CONTRACT This contract and agreement (hereinafter referred to as "Contract") is made and entered into by and between the City of Lubbock, a municipal corporation of the State of Texas, (hereinafter referred to as "City"), and Texas Tech University, an agency of the State of Texas (hereinafter referred to as "Contractor). The parties hereto have severally and collectively agreed and by the execution hereof are bound to the mutual obligations and to the performance and accomplishment of the tasks described herein. SECTION 2. CONTRACT PURPOSE Contractor shall conduct, in a manner satisfactory as determined by City, an economic development project (hereafter referred to as the "Project") to purchase capital equipment necessary to properly utilize the integrated Texas Tech Wind Science and Research Center (hereafter referred to as the "Center") at Reese Center in Lubbock, Texas (formerly known as Reese Air Force Base) to meet the needs of the Center. The City shall provide support for the Project through a Defense Economic Adjustment Assistance Grant (DEAAG), created by the 75th Texas Legislature to provide state funding for the purpose of acquiring federal grant assistance or sharing the cost of redevelopment of communities that have been adversely affected by defense downsizing. Senate Bill 227 of the 75th Texas Legislature, which adds Chapter 486 to the Texas Government Code, authorizes the grant program. Section 174 of the Texas Administrative Code contains the rules under which the program is implemented. SECTION 3. CONTRACT PERIOD This Contract shall commence upon execution of this Contract, and shall terminate twenty-four (24) months thereafter, upon completion of the Project as defined by Section 16 of this Contract. SECTION 4. CONTRACTOR PERFORMANCE A. Contractor shall conduct and complete the Project in a satisfactory manner as determined by City. B. Contractor shall comply with all applicable laws and regulations, and shall perform all activities in accordance with the terms of the Special Conditions specified in Section 16 of this Contract, and with all other terms, provisions, and requirements set forth in this Contract. C. No more than ten percent (10%) of contract funds disbursed pursuant to this Contract may be applied towards administrative costs. The acceptability of costs incurred for performances rendered hereunder shall be determined in accordance with this Contract. SECTION 5. CITY OBLIGATIONS A. Measure of Liability In consideration of full and satisfactory performance of activities required by Section 4 of this Contract, City will disburse DEAAG funds to Contractor in the amounts and at the times specified by the Special Conditions detailed in Section 16 of this Contract, and subject to the limitations set forth in this Section 5. It is expressly understood and agreed by the parties hereto that City's obligations under this Section are contingent upon the actual receipt of adequate state funds to meet City's liabilities under this Contract. If adequate funds are not available to make payments under this Contract, City will notify Contractor in writing within a reasonable time after such fact is determined. 2. In the event the Texas Department of Economic Development terminates this Contract City may terminate this Contract at any time and will not be liable for failure to make payments to Contractor under this Contract after such termination. City will not be liable to Contractor for any costs incurred by Contractor or for any performances rendered by Contractor which are not strictly in accordance with the terms of this Contract. 4. City will not be liable for costs incurred or performances rendered by Contractor before commencement of this Contract or after termination of this Contract, except as may be specifically set forth in this Contract. B. Excess Payments Contractor shall refund to City any sum of money paid to Contractor by City, which City determines is an overpayment to Contractor, or which City determines was not spent by Contractor strictly in accordance with the terms of this Contract. No refund payment(s) may be made from local, state, or federal grant funds unless statute or regulation specifically permits repayment with grant funds. Contractor shall make such refund to City within thirty (30) calendar days after City requests such refund. C. Limit of Liability Notwithstanding any other provision of this Contract, the total of all payments and other obligations incurred by City under this Contract will not exceed the sum of two million and no/100 dollars ($2,000,000.00). SECTION 6. RETENTION AND ACCESSIBILITY OF RECORDS A. Contractor shall maintain fiscal records and supporting documentation for all expenditures of funds made under this Contract in a manner that conforms to this Contract. Such records shall include data on the racial, ethnic, and gender characteristics of persons who are applicants for, participants in, or beneficiaries of the funds provided under this Contract. Contractor shall retain such records, and any supporting documentation, for the greater of four years from the end of the Contract period, or the period required by other applicable laws and regulations. B. Contractor shall give the City, its designee, or any of its duly authorized representatives, access to and the right to examine all books, accounts, records, audit reports, reports, files, documents, written or photographic material, videotape and other papers, things, or property belonging to or in use by Contractor pertaining to this Contract, including records concerning the past use of DEAAG funds. Such rights to access shall continue as long as Contractor retains the records. Failure to provide reasonable access to authorized City representatives shall give the City the right to terminate the Contract or any portion thereof for reason of default. All records and other information shall be retained for audit purposes until such audits or other administrative, civil or criminal matters, including but not limited to investigations, lawsuits, administrative inquires and open record requests are completed. Contractor agrees to maintain such records in an accessible location and to provide citizens reasonable access to such records consistent with the Texas Public Information Act. C. Access to records under this Section 6 are subject to the Family Educational Rights and Privacy Act of 1974 (FERPA). Where made necessary by operation of FERPA, Contractor shall provide requested information from an alternative source or from appropriately redacted sources. D. Contractor shall include the substance of this Section 6 in all subcontracts. SECTION 7. MONITORING City reserves the right to perform periodic on -site monitoring of Contractor's compliance with the terms and conditions of this Contract, and of the adequacy and timeliness of Contractor's performances under this Contract. After each monitoring visit, City will provide Contractor with a written report of the monitor's findings. If the monitoring report notes deficiencies in Contractors performances under the terms of this Contract, the monitoring report shall include requirements for the timely correction of such deficiencies by Contractor. Failure by Contractor to take action specified in the monitoring report may be cause for suspension or termination of this Contract, as provided in Sections 14 and 15 of this Contract. SECTION 8. INDEPENDENT CONTRACTOR It is expressly understood and agreed by the parties hereto that City is contracting with Contractor as an Independent Contractor, and that Contractor, its employees and subcontractors are not employees of the City. SECTION 9. CONFLICT OF INTEREST A. Contractor shall ensure that no employee, officer, or agent of Contractor shall participate in the selection, award or administration of a subcontract supported by funds provided hereunder if a conflict of interest, real or apparent, would be involved. Such conflict of interest would arise when: (1) the employee, officer, or agent; (2) any member of his or her immediate family; (3) his or her partner; or, (4) any organization which employs, or is about to employ any of the above, has a financial or other interest in the firm or person selected to perform the subcontract. B. Except for eligible administrative or personnel costs, no employee, agent, consultant, officer, or elected or appointed official, of either Contractor or of a subcontractor, who exercises or has exercised any functions or responsibilities or is in a position to participate in decision -making or gain inside information in regard to the activities involved in the Project, shall be permitted to have or obtain a financial interest in or benefit from the Project or any contract, subcontract or agreement with respect thereto, or the proceeds thereunder, either for themselves or those with whom they have family or business ties. This prohibition shall remain in effect for the duration of the prohibited relationship plus one calendar year thereafter. C. Contractor shall include the substance of this Section 9 in all subcontracts. SECTION 10. NONDISCRIMINATION AND SECTARIAN ACTIVITY A. Contractor shall ensure that no person shall on the ground of race, color, national origin, religion, sex, age, or handicap be excluded from participation in, be denied the benefits of be subjected to discrimination under or be denied access to any program or activity funded in whole or in part with funds made available under this Contract. B. None of the performances rendered by Contractor under this Contract shall involve, and no portion of the funds received by Contractor under this Contract, shall be used in support of any sectarian or religious activity, nor shall any facilities used in or resulting from the performance of this Contract be used for sectarian instruction or as a place of religious worship. C. Contractor shall include the substance of this Section 10 in all subcontracts. SECTION 11. LEGAL AUTHORITY A. Contractor assures and guarantees that Contractor possesses the legal authority to enter into this Contract, receive funds authorized by this Contract, and to perform the services Contractor has obligated itself to perform hereunder. B. The person or persons signing and executing this Contract on behalf of Contractor, or representing themselves as signing and executing this Contract on behalf of Contractor, do hereby warrant and guarantee that he, she or they have been duly authorized by Contractor to execute this Contract on behalf of Contractor and to validly and legally bind Contractor to all terms, performances. and provisions herein set forth. C. City will have the right to suspend or terminate this Contract if there is a dispute as to the legal authority of either Contractor or the person signing this Contract to enter into this Contract, any amendments hereto or to render performances hereunder. Contractor is liable to City for any money it has received from City for performance of the provisions of this Contract, if City has suspended or terminated this Contract for reasons enumerated in this Section 11. SECTION 12. LITIGATION AND CLAIMS A. Contractor shall give City immediate notice in writing of any action, including any proceeding before an administrative agency, filed against Contractor arising out the performance of any subcontract hereunder. Except as otherwise directed by City, Contractor shall furnish immediately to City copies of all pertinent papers received by Contractor with respect to such action or claim. Contractor shall notify the City immediately of any legal action filed against the Contractor or any subcontractor, or of any proceeding filed under the federal bankruptcy code. Contractor shall submit a copy of such notice to City within 30 calendar days after receipt. No funds provided under this Contract may be used in the payment of any costs incurred from violations or settlements of or failure to comply with federal and state regulations. B. Contractor hereby agrees, to the extent permitted by law, to indemnify and hold harmless City of Lubbock, its City Council members, officers, agents and employees from any and all losses, costs, damages, expenses, and liabilities of whatsoever nature (including, but not limited to, attorney's fees, litigation and court costs, amounts paid in settlement, and amounts paid to discharge judgments) directly or indirectly resulting from, arising out of or related to the performance of this Contract by Contractor, or the design, construction, installation, operation, use, occupancy, maintenance, or ownership of the Center or the equipment to be purchased under this Contract. SECTION 13. CHANGES AND AMENDMENTS A. Except as specifically provided otherwise in this Contract, any alterations, additions, or deletions to the terms of this Contract shall be by amendment hereto in writing and executed by both parties to this Contract. B. It is understood and agreed by the parties hereto that performances under this Contract shall be rendered in accordance with the laws and rules governing Defense Economic Adjustment Assistance Grants, and the terms and conditions of this Contract. City may, during the Contract period, issue policy directives that serve to establish, interpret, or clarify performance requirements under this Contract. Such policy directives promulgated by City, shall have the effect of qualifying the terms of this Contract and shall be binding upon Contractor, as if written herein, provided however that said policy directives and any amendments shall not alter the terms of this Contract so as to release City from any obligation specified in Section 5 of this Contract to reimburse costs incurred by Contractor prior to the effective date of said amendments or policy directives. C. Any alterations, additions, or deletions to the terms of this Contract required by changes in state law or regulations are automatically incorporated into this Contract without written amendment hereto, and shall become effective on the date designated by such law or regulation. SECTION 14. SUSPENSION A. Notwithstanding the provisions of Chapter 2251 of the Texas Government Code, in the event Contractor fails to comply with any term of this Contract, City may, after written notice to Contractor of noncompliance with the terms of this Contract and Contractor's failure to cure such noncompliance within forty-five (45) days, suspend this Contract in whole or in part, withhold further payments to Contractor, and prohibit Contractor from incurring additional obligations of funds under this Contract. B. A suspension under this Section 14 may be lifted only at the sole discretion of the City upon a showing of compliance with or written waiver by City of the term(s) in question. C. City will not be liable to Contractor or to Contractor's creditors for costs incurred during any term of suspension of this Contract. SECTION 15. TERMINATION A. City will have the right, after written notice to Contractor of noncompliance with any term of this Contract and Contractor's failure to cure such noncompliance within forty- five (45) days, to terminate this Contract, in whole or in part, at any time before the date of completion specified in Section 3 of this Contract. In the case of partial termination, the written notice shall identify the portion of the Contract to be terminated. B. Upon termination or receipt of notice to terminate, whichever occurs first, Contractor shall cancel, withdraw, or otherwise terminate any outstanding orders or subcontracts related to the performance of this Contract or the part of this Contract to be terminated, and shall cease to incur costs thereunder. City will not be liable to Contractor or to Contractor's creditors for costs incurred after the effective date of termination of this Contract. C. Notwithstanding any exercise by City of its right of suspension under Section 14 of this Contract, or of early termination pursuant to this Section 15, Contractor shall not be relieved of any liability to City for damages due to City by virtue of any breach of this Contract by Contractor. City may withhold payments to Contractor until such time as the exact amount of damages due to City from Contractor is agreed upon or is otherwise determined. SECTION 16. SPECIAL CONDITIONS A. Contractor shall submit the following to City prior to the initial disbursement of contract funds, which shall equal fifty percent (50%) of the total amount of funds provided by City under this Contract (hereinafter "Contract Funds"), and within nine (9) months of the effective date of this Contract: 1. A complete itemized list with descriptions of and specifications (including cost) for all capital equipment to be purchased and installed in the Center to meet its operating needs, with equipment to be purchased using the first disbursement of Contract Funds indicated. On receipt and approval by the City, this list shall be attached and incorporated into this Contract as Exhibit A. 2. Copies of the final local funding commitments or loan agreements from all sources supporting this Project, as identified in Section 17 of this Contract. 3. A letter identifying a person authorized by Contractor for the purpose of requesting and receiving funds from the City. 4. A copy of the administration contract, if one is contracted. B. In addition to satisfying the foregoing Special Conditions, and prior to the second disbursement of Contract Funds, which shall equal forty percent (40%) of the total Contract Funds, Contractor shall provide receipts to City indicating that the initial disbursement of Contract Funds has been spent on capital equipment identified in Section 16A(1) of this Contract. C. Contractor shall satisfy the following Special Conditions, in addition to satisfying the foregoing Special Conditions, prior to the final disbursement of the remaining ten - percent (10%) of Contract Funds: 1. Contractor shall have completed installation of all capital equipment as described in the plans and specifications originally submitted to the City pursuant to Section 16A(1). 2. Contractor shall submit a Certificate of Completion to City no later than sixty (60) calendar days after the conclusion of installation of all capital equipment described in the plans and specifications originally submitted to the City pursuant to Section 16A(1). The Certificate of completion shall include a final Project Completion Report of all activities performed under this Contract. D. Contractor shall ensure that City is provided with reports on the progress of the Project on a semi-annual basis, or when otherwise requested, prior to completion of the Project (as marked by the release of the final ten- percent (10%) installment of Contract Funds by the City). In addition: 1. Contractor shall be prepared to provide on request base line and semi-annual data on the impact of the Project on the local economy over a four-year period beginning with the completion of the Project. City shall assist Contractor gather the data. 2. The Contractor shall be prepared to provide on request base line and semi-annual data on full-time jobs generated by the Project and data on the employment of dislocated defense and economically disadvantaged workers. The Contractor shall provide on request semi-annually, copies of payroll documents verifying the number of employees during the construction/installation phase of the Project. Upon completion of the Project, the Contractor shall provide on request payroll documents indicating the number of full-time jobs created over the course of the construction/installation phase of the Project. 4. In addition to the limitations on liability otherwise specified in this Contract, it is expressly understood and agreed by the parties hereto that if Contractor fails to submit to City in a timely and satisfactory manner any report required by this Contract, City may, at its sole option and in its sole discretion, withhold any or all payments otherwise due or requested by Contractor hereunder. If City withholds such payments; it will notify Contractor in writing of its decision and the reasons therefor. Payments withheld pursuant to this paragraph may be held by City until such time as the delinquent obligations for which funds are withheld are fulfilled by Contractor. E. In the event the Contractor fails to complete the Project or comply with any provision as specified in this Contract, the Contractor may be liable to the City for an amount not to exceed the maximum obligation under this Contract, and may be barred from applying for or receiving additional funding under the DEAAG program until repayment is made and any other compliance or audit findings are resolved and/or the job generation requirements of this Section 16 are fulfilled. F. Job Generation Requirements 1. Within two years of the completion of the Project, as marked by the release of the final ten percent (10%) installment of Contract Funds by the City, Contractor shall ensure and demonstrate to the City that the completed Project shall generate a minimum of one hundred and thirty-two (132) new, direct, permanent full-time jobs 2. In the event the Contractor fails to ensure the creation and retention of new jobs as required by this Section 16, City shall receive a recoupment of funds from Contractor equal to the lesser of: a. A prorated share of the total Contract Fund amount of two million and no/100 dollars ($2,000,000.00) for each of the minimum number of new, direct, permanent full-time jobs required in this Contract (132) not created and in existence on the second anniversary of the completion of the Project; or b. Fifty percent (50%) of the total Contract Fund amount of two million and no/100 dollars ($2,000,000.00). 3. For purposes of this Contract, job creation and retention rates must be evidenced by satisfactory documentation, such as copies of payroll documents, as required by the City. SECTION 17. FUNDING SOURCES: A. Contractor has represented that funding will be provided in the following amounts from the following sources: Funding Type Specific Source Name Amount of Funding Federal Funding Assistance National Institute of Standards and Technology Grant $2,040,000 Texas Defense Economic Adjustment Assistance Grant Texas Department of Economic Development $2,000,000 Local Community Funding Texas Tech University $660,000 Assistance from other sources Department of Defense in- kind contribution $1,000,000 B. If the Contractor's proposal for funding from any of the other sources named in Section 17A is rejected, the commitment of funds under this Contract will be withdrawn. Contractor shall have thirty (30) days to renegotiate financial arrangements prior to withdrawal of the commitment of funds under this Contract. C Encumbrance of all funds from sources other than the City named in Section 17A must be evidenced to the City prior to the disbursement of any funds under this Contract, either from the sources named, or from alternative sources. SECTION 18. SUBCONTRACTS A. Contractor shall ensure that the performance rendered under all subcontracts complies with all terms and provisions of this Contract as if Contractor rendered such performance. Contractor shall bear full responsibility for performance by all subcontractors. B. Contractor, in subcontracting any of the performances hereunder, expressly understands that in entering into such subcontracts, City is in no way liable to Contractor's subcontractor(s). C. Contractor assures and shall obtain assurances from all of its subcontractors where applicable, that no person shall, on the grounds of race, creed, color, disability, national origin, sex or religion, be excluded from, be denied the benefit of, or be subjected to discrimination under any program or activity funded in whole or in part under this Contract. D. As subcontracts and supplier contracts become necessary to carry out the requirements of this Contract, Contractor covenants to make a good faith effort to contract with historically underutilized (disadvantaged) businesses so certified by the State of Texas, as that term is identified by Section 481.101, Texas Government Code. Contractor shall make a good faith effort to let at least thirty percent (30%) of the total value of all subcontracts and supplier contracts for the performance of this Contract to historically underutilized (disadvantaged) businesses. SECTION 19. DEBARMENT By signing this Contract, Contractor certifies that it will not award any funds provided under this Contract to any party which is debarred, suspended or otherwise excluded from or ineligible for participation in assistance programs. Contractor further certifies that it is not ineligible under Section 231.006 of the Texas Family Code to receive the specified grant, loan, or payment and acknowledges that this Contract may be terminated and payment may be withheld if this certification is inaccurate. SECTION 20. WAIVER It is expressly understood and agreed by the parties hereto that any right or remedy provided for in this Contract shall not preclude the exercise of any other right or remedy under this Contract or under any provision of law, nor shall any action taken in the exercise of any right or remedy be deemed a waiver of any other rights or remedies. Failure to exercise any right or remedy hereunder shall not constitute a waiver of the right to exercise that or any other right or remedy at any time. SECTION 21. NON -ASSIGNMENT This Contract is not assignable. Notwithstanding any attempt to assign the Contract, Contractor shall remain fully liable on this Contract and shall not be released from performing any of the terms, covenants, and conditions of this Contract. Contractor shall be held responsible for all funds received under this Contract. SECTION 22. ORAL AND WRITTEN AGREEMENTS All oral and written agreements between the parties to this Contract relating to the subject matter of this Contract that were made prior to the execution of this Contract have been reduced to writing and are contained in this Contract. SECTION 23. AUTHORIZED RELIEF FROM PERFORMANCE (Force majeure) City may grant relief from performance of the Contract if the Contractor is prevented from compliance and performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributed to the fault or negligence of the Contractor. The burden of proof for the need for such relief shall rest upon the Contractor. To obtain release based upon force majeure, the Contractor must file a written request with the City. SECTION 24. VENUE For purposes of litigation pursuant to this Contract, venue shall lie in Lubbock County, Texas. WITNESS OUR HANDS, EFFECTIVE APRIL 22, 1999: CITY OF LUBBOCK WINDY SITTON MAYOR ATTEST: (OL Ntvfyut,,' Ka lie Darnell, City S retary AS TO CONTENT: Kevin G. tialson alker, Business Officer APPROVED AS TO FORM: William de Haas, Competition and Contracts Manager TEXAS TECH UNIVERSITY ATTEST: r- H