HomeMy WebLinkAboutResolution - 2009-R0561 - Change Order To Contract - Siemens Water Technologies Corporation - Filtration - 12/16/2009Resolution No. 2009-80561
December 16, 2009
Item No. 5.9
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, Change Order No. # 1 to that
certain Contract No. 8968 by and between the City of Lubbock and Siemens Water
Technologies Corporation, for the Membrane Filtration System Procurement for Lake
Alan Henry Water Treatment Plan, and related documents. Said Change Order No. #1 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
16th day of December 2009.
4
,-- �X A��
TOM MARTIN, MAYOR
ATTEST:
r
Rebec a Garza, City Secretary
APPROVED AS TO CONTENT:
Chief Water Utilities Director
APPROVED AS TO FORM:
r
Amy L. s, s ity Attorney
vw:ccdocs/RES.ChangeOrd#1-Siemens Water Technologies Corp
December 10, 2009
CITY OF LUBBOCK
CHANGE ORDER
Change Order #: 1 Contractor: Siemens Water Technologies Corporation
Date: November 25, 2009 BID/ITB/RFP #: RFP#09-179-BM
Contract #: 8968 Project Name: LAR Membrane Filtration System
"Change Order" means a written order to a Contractor executed by the Owner in accordance with the contract authorizing an
addition to, deletion from, or adjustment or revision of the requirements of the contract documents, or an adjustment to the
compensation payable to Contractor, or to the time for performance of the contract and completion of the Project, or a
combination thereof, which does not alter the nature of the thing to be constructed and is an integral part of the project objective.
Adjustments to "Estimated Quantities" to a line item in a Unit Price contract do not require a Change Order. Al work that alters
the nature of the thing to be constructed or that is not an integral part of the project objective must be let out for public bid
Description of change (alteration, deviation, addition, or deletion) caused by conditions encountered during construction
not covered by the specifications and drawings of the project (attach additional pages if necessary):
Siemens has proposed deleting the independent maintenance wash system specified as part of the membrane
filtration system being provided for the LAH Water Treatment Plant. This deletion would be a deduct of
$85,200.00 from the original contract. COL Staff and the consulting engineers recommend removal of the
independent system from the design. It is the recommendation of the design engineering firm this independant
system is not required for adequate operation of the Water Treatment Plant. This would be change of negative
0.2% to the contract price. See Exhibits 1-3 attached.
Where the Change Order is negotiated, the Change Order must be fully documented and itemized as to costs, including material
quantities, material costs, taxes, insurance, employee benefits, other related costs, profit and overhead. Where certain unit prices
are contained in the initial contract, no deviations are allowed in computing negotiated change order costs.
ITEMIZED COSTS MUST BE FULLY DOCUMENTED AND ATTACHED TO THIS FORM.
ITEM
DESCRIPTION
AMOUNT
A.
ORIGINAL, CONTRACT VALUE:
X4,251,81?.(}(}
B.
AMOUNT OF THIS CHANGE ORDER: Council approval required if over $25,000
S(85,200.00)
C.
PERCENT OF CONTRACT VALUE THIS CHANGE ORDER (BTA):
-0.2%
D.
AMOUNT OF PREVIOUS CHANGE ORDERS:
$U.40
E.
TOTAL AMOUNT OF ALL CHANGE ORDERS (B+D):
$(85,200.00)
F.
PERCENT OF CONTRACT OF ALL CHANGE ORDERS (EIA): 25% maximum
-0,2 erro"
G.
NEW CONTRACT AMOUNT (A+E):
$4,166,612
It is mutually agreed that the above dollar amount and the time extension, as applicable, as set forth in this Change Order constitutes
full compensation to the Contractor for all costs, expenses and damages to the Contractor, whether direct, consequential or otherwise,
in anyway incident to, or arising out of or resulting directly or indirectly; from the work performed or modified by the Contractor
under this Change Order.
Purchasine and Contract Management Department).
'3 - - 12 l� ay
(1) CO ACTOR Date
Approved as to conte Approved as R`�:
3 OWNE S RE SEN TIV Date (4) CITY A Y Date
k)
(5) CAPITXL PROJECTS MANAGER Date (6) PURCHASING AND CONTRACT MANAGER Date
Change Orders over $25,000 require a Contract Cover Skeet and the following signatures:
CITY OF BBOCK A T:
12/16/09 12/16/09
(7) M YOR Date (8)TnASECRETARY Date
Council Date: December 16, 2009 Agenda ttem #: 5 • Resolution #: 2009-80561
PWG -045 (Rev 01/08)
TERMS AND CONDITIONS
IMPORTANT: READ CAREFULLY
STANDARD TERMS AND CONDITIONS
CITY OF LUBBOCK, TEXAS
Seller and Buyer agree as follows:
1. SELLER TO PACKAGE GOODS. Seller will package goods in accordance with good
commercial practice. Each shipping container shall be clearly and permanently marked as
follows (a) Seller's name and address, (b) Coesiguee's time, address and purchase order or
purchase release number and the supply agreement norther if applicable, (c) Container number
and total number of containers, e.g. boa l of 4 boxes, and (d) the number of the container
bearing the packing slip. Seller shall bear cost of packaging unless otherwise provided. Goods
shall be suitably packed to secure lowest transportation costs and to conform with requirements
of common carriers and any applicable specifications. Buyer's count or weight shall be Final
and conclusive on shipments not accompanied by packing lists.
2. SHIPMENT UNDER RESERVATION PROHIBITED, Seller is not authorized to ship the
goods under reservation and no tender of a bit! of lading will operate as a tender of goods.
3. TiTL£ AND RISK OF LOSS. The title and risk of loss of the goods shall not pass to Buyer
until Buyer actually receives and takes possession of the goods at the point or points of
delivery.
4. NO REPLACEMENT OF DEFECTIVE TENDER Every tender of delivery of goods most
fully comply with all provisions of this contract as to time of delivery, quality and the like. If a
tender is made which does not fully conform, this shall constitute a breach and Seller shall not
have the right to substitute a conforming tender, provided, where the time for performance bas
not yet expired, the Seller may reasonably notify Buyer of his intention to cure and may that
make a cunfomting tender within the contract time but not afterward
S. INVOICES & PAYMENTS.
a. Seller shall submit separate invoices, in duplicate, one each purchase order or purchase
release after each delivery. Invoices shall indicate the purchase order or purchase release
number and the supply agreement number if applicable. Invoices shall be itemized and
transportation charges, if any, shall be listed separately. A copy of the bill of lading, and the
freight waybill when applicable, should be attached to the invoice. Mail To: Accounts
Payable, City of Lubbock, P. O. Box 2000, Lubbock, Texas 79457. Payment shall not be due
unfit the above instruments are submitted after delivery.
6. GRATUITIES. The Buyer may, by written notice to the Seller, cancel this contract without
liability to Seller if it is determined by Buyer that gratuities, in the form of entertainment, gifts
or otherwise, were offered or given by the Seller, or any agent or representative of the Seller, to
any officer or employee of the City of Lubbock with a view to securing a contract or securing
favorable treatment with respect to the awarding or amending, or the making of any
determinations with respect to the performing of such contract. In the event this contract is
canceled by Buyer pursuant to this provision, Buyer shall be entitled, in addition to any other
rights and remedies, to recover or withhold the amount of the cost incurred by Seller in
providing such gratuities.
7. SPECIAL TOOLS & TEST EQUIPMENT. If the price stated on the face hereof includes the
cost of any special tooling or special test equipment fabricated or required by Seller for the
purpose of filling this order, such special tooling equipment and any process sheets related
thereto shall become the property of the Buyer and to the extent feasible shall be identified by
the Seller as such.
& WARRANTY -PRICE.
a. The price to be paid by the Buyer shall be that contained in Seller's bid which Sella
warrants to be no higher than Seller's current process on orders by others for products of the
kind and specification covered by this agreement for similar quantities under similar of like
conditions and methods of purchase. In the event Sella breaches this warranty, the prices of
the items shall be reduced to the Seller's current prices on orders by others, or in the
alternative. Buyer may cancel this contract without liability to Seller for breach or Seller's
actual expense.
It. The Seller warrants that no person or selling agency has beer employed or retained to solicit
or secure this contract upon an agreement or understanding for commission, percentage,
brokerage, or contingent fee excepting bona fide employees of bona fide established
commercial or selling agencies maintained by the Seller for the purpose of seeming. business.
For breach of viciation of this warranty the Buyer shall have the tight in addition to any other
right of rights to cancel this contract without liability and to deduct from the contract price, or
otherwise recover without liability and to deduct from the contract price, or otherwise recover
the full amount of such commission, percentage, brokerage or contingent fee.
9. WARRANTY -PRODUCT. Seller shall not limit or exclude any implied warranties and any
attempt to do so shalt render this contract voidable at the option of the Buyer. Sults warrants
that the goods famished will conform to the specification, drawings, and dcecriptions listed in
the bid invitation, and to the samples) furnished by the Seller, if any. In the event of a conflict
or between the speciftcatiow, drawings, and descriptions, the specifications shall govern.
Notwithstanding any provisions contained in the contractual agreemeat, the Sella represents
and warrants fault -free performance and fault -free result in the processing date and date related
data (including, but not limited to calculating, comparing and sequencing) of all hardware,
software and fiirmwarc products delivered and services provided under this Contract,
individually or in combination, as the case may be from the effective date of this Contract.
Also, the Seller warrants the year2000 calculations will be recognized and accommodated and
will not, in any way, result in hardware, software or firmware failure. The City of Lubbock, at
its sole option, may require the Seller, at any time, to demonstrate the procedom it intends to
follow in order to comply with all the obligations contained haiin. The obligations contained
herein apply to products and services provided by the Sella, its sub -Seller or any third party
involved in the creation or development of the products and services to be delivered in the City
of Lubbock under this Contract. Failure to comply with any of the obligations contained
herein, may result in the City of Lubbock availing itself of any of its rights under the law and
under this Contract including, but not limited to, its right pertaining to termination or default.
The warranties contained herein are separate and discrete from any other warranties specified
in this Contract, and arc not subject to any disclaimer of warranty, implied or expressed, or
limitation of the Seller's liability which may be specified in this Contract, its appendices, its
schedules, its annexes or any document incorporated in this Contract by reference.
10. SAFETY WARRANTY. Seller warrams that the product sold to the Buyer shall conform to
the standards promulgated by the U. S. Department of Labor underthe Occupational Safety and
Health Act of 1970. In the event the product dues cot conform to OSHA standards, Buyer may
return the product for correction or replacement at the Seller's expense. U the event Seller
fails to make the appropriate correction within a reasonable time, correction made by Buyer
will be at the Seller's expense.
11. NO WARRANTY BY BUYER AGAINST INFRINGEMENTS. As part of ibis contract for
sale Seller agrees to ascertain whether goods manufactured in accordance with the
specifications attached to this agreement will give rise to the rightful claim of any third person
by way of infringement of the like. Buyer makes no warranty that the production of goods
according to the specification will not give rise to such a claim, and in no event shall Buyer be
liable to Seller for indemaiftcation in the event that Seller is sued on the grounds of
infringement of the like If Seiler is of the opinion that an infringement or the like will result,
he will notify the Buyer to this effect in writing within two weeks aRa the signing of this
agreement. If Buyer does not receive notice and is subsequently held liable for the
infringement or the like, Seller will save Buyer harmless. if Seller in good faith ascertains the
production of the goods in accordance with the specifications will result in infringement or the
like, the contract shall be null and void.
12. RIGHT OF INSPECTION. Buyer shall have the right to inspect the goods at delivery before
accepting than.
13. CANCELLATION. Buyer shall have the right to cancel for default all or any part of the
undelivered portion of this order if Seller breaches any of the terms hereof including warranties
of Seiler or if the Seller becomes insolvent or commis acts of bankruptcy. Such right of
cancellation is in addition to and not in lieu of any other remedies which Buya may have in
law or equity.
14. TERMINATION. The performance of work under this order may be terminated in whole, or in
part by the Buyer in accordance with this provision. Termination of work hereunder shall be
effected by the delivery of the Seller of a "Notice of Termination" specifying the extent to
which performance of work under the order is terminated and the date upon which such
termination becomes effective. Such right or termination is in addition to and rot in lieu of the
rights or Buyer set forth in Clause 13, herein..
15. FORCE MA3EURE. Neither party shall be held responsible for losses, resulting if the
fulfillment of any terms of provisions of this contract is delayed or prevented by any cause not
within the control of the party whose performance is interfered with, and which by the exercise
of reasonable diligence said party is unable to prevent.
16. ASSIGNMENT -DELEGATION. No right or interest in this contract shall be assigned or
delegation of any obligation made by Seller without the written permission of the Buyer. Any
attempted assignment or delegation by Seiler shall be wholly void and totally ineffective for all
purpose unless made in conformity with this paragraph.
l7. WAIVER. No claim or right arising nut of a breach of this contract can be discharged in whole
or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is
supported by consideration and is in writing signed by the aggrieved party.
18. INTERPRETATION -PAROLE EVIDENCE. This writing, plus any specifications for bids and
performance provided by Buyer in its advertisement for bids, and any other documents
provided by Sella as par of his bid, is intended by the parties as a final expression of their
agreement and intended also as a complete and exclusive statement of the terms of their
agreement Whenever a term defined by the Uniform Commercial Code is used in this
agreement, the definition contained in the Code is to control.
19. APPLICABLE LAW. This agreement shall be governed by the Uniform Commercial Code.
Where ever the term "Uniform Commercial Code" is used, it shall be construed as meaning the
Uniform Commercial Code as adopted in the State of Texas as effective and in force on the
date of this agreement
20. RIGHT TO ASSURANCE. Whenever one party to this contract in good faith has reason to
question the other party's intent to perform he may demand that the other party give written
assurance of his intent to perform. In the event that a demand is made and no assurance is
given within five (5) days, the demanding party may treat this failure as an anticipatory
repudiation of the contract.
21. INDEMNIFICATION. Sella shall indemnify, keep and save harmless the Buyer, its agents,
officials and employees, against all injuries, deaths, loss, damages, claims, pateol claims, suits,
liabilities, judgments, costs and expenses, which may in anywise accrue against the Buyer in
consequence of the granting of this Contract or which may anywise result therefrom, whether
or not it shall be alleged or dacrnined that the act was caused through negligence or omission
of the Seller or its employees, or of the subSclla or assignee or is employees, if any, and the
Seiler shall, at his own expense, appear, defend and pay all chargesof attorneys and all costs
and other expenses arising therefrom of incurred in connection therewith, and, if any judgment
shall be rendered against the Buyer in any such action, the Sella shall, at its own expenses,
satisfy and discharge the same Sella expressly understands and agrees that any bond required
by this contract, or otherwise provided by Seller, shall in no way limit the responsibility to
indemnify, keep and save harmless and defend the Buyer as herein provided.
22. TIME. It is hereby expressly agreed and understood that time is of the esseacc for the
performance of this contract, and failure by contract to meet the time specifications of this
agreement will cause Sella to be in defaultof this agreement
23. MBE. The City of Lubbock hereby notifies all bidders that in regard to any contract entered
into pursuant to this request, minority and women business enterprises will be afforded equal
opportunities to subunit bids in response to this invitation and will not be discriminated against
on the grounds of race,color, sex or natural origin in consideration for an award.
Rev. 08/2005