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HomeMy WebLinkAboutResolution - 2006-R0457 - Contract - Basic Industries Inc.- Minor Construction, Repair, Rehabilitation - 09/28/2006Resolution No. 2006-RO457 September 28, 2006 Item No. 5.14 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the City Council of the City of Lubbock hereby authorizes and directs the Mayor of the City of Lubbock to execute a Contract by and between the City of Lubbock and Basic Industries, Inc., of Midland, Texas for minor construction, repair, rehabilitation and alteration of City facilities, which Contract and any associated documents, are attached hereto and made a part of this Resolution for all intents and purposes. Passed by the City Council this 28th day of ATTEST: Rebe ca Garza, City Secretary September , 2006. r DAVID A. MILLER, MAYOR APPROVED A TO CONTENT: Marq Ye d, Chief Information Officer/Assistant City Manager APPROVED AS T.© FORM: Vandiver, AMorney of Counsel Mres/Basidndustries06ConRes September 21, 2006 Resolution No. 2006-RO457 September 28, 2006 Item No. 5.14 CONTRACT # 7086 STATE OF TEXAS COUNTY OF LUBBOCK § This contract, (the "Contract"), effective as of the 28th day of September, 2006, (the "Effective Date"), is by and between the City of Lubbock, (the "City"), a Texas municipal corporation, and Basic Industries, Inc. ("CONTRACTOR"). WITNESSETH WHEREAS, the City desires to obtain a Job Order Contract (JOC) to provide indefinite delivery and indefinite quantity of minor construction, repair, rehabilitation, and alteration of the City facilities located in Lubbock, Texas. The work will be of recurring nature, but the delivery times are indefinite and there are indefinite quantities. The work will be priced based on a coefficient (multiplier e.g., 0.95 or 1.10) applied to pre -described and pre -priced tasks contained in the Unit Price Book.; and WHEREAS, CONTRACTOR has a professional staff experienced and is qualified to provide the Job Order Contracting System for minor construction, repair, rehabilitation, or alteration of a facility initiated by the City; and WHEREAS, the City desires to contract with CONTRACTOR to provide the Job Order Contracting System for minor construction, repair, rehabilitation, or alteration of a facility initiated by the City. NOW THEREFORK 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. DEFINITIONS. "Coefficient" means a numerical factor which represents costs not considered as included in Unit Price Book unit prices, including general and administrative and other overhead costs, insurance costs, equipment rental, protective gear and clothing, contingencies such as changes in wage rates and inflation, contractor's profit, and indirect costs. Separate coefficients may be used for normal working hours and non -normal working hours. "Non-prepriced item" means a necessary, but incidental, part of a job or project ordered under a Job Order Contract that is not susceptible to unit pricing using the prepriced tasks in the Unit Price Book. The Coefficient applied to a prepriced item shall not be applied to a non-prepriced item. "Statement of Work" means a description of a project to be ordered under a Job Order Contract which contains sufficient detail to detennine quantities and quality, and the time for performance. "Unit Price Book" means a compilation of real property repair, rehabilitation, alteration, maintenance, and minor construction tasks, along with associated units of measure and unit prices published by R.S. Means to be used in administration of this Contract. Unit prices include direct material, labor and equipment cost, but not indirect costs or profit. The R.S. Means Unit Price Book(s) for this Contract appropriate for the scope of the work for each specific Job Order are to be used and are hereby incorporated by reference. ARTICLE H. SCOPE OF WORK CONTRACTOR shall accomplish the following: The Contractor shall fumish all of the materials and perform all of the work shown on the drawings and described in the specifications associated with any Statement of Work provided by the Owner for a Job Order hereunder. The Project Architect for each Job Order shall be as specified in the individual Job Order. The Contractor shall do everything required by this Agreement, the General, Supplementary, and Additional General Conditions of the Contract, the Special Conditions, the Addenda, the Specifications and the Drawings for each Job Order, the Statement of Work and Job Order (as specified in RFP#06-705-BM which is incorporated and made a part hereof by reference), (collectively, the "Contract Documents" which form the "Contract"). The Owner shall provide a Notice to Proceed in which a date for commencement of the work under a Job Order shall be stated. The Contractor shall complete the work within the number of calendar days specified in the Job Order after such commencement date; as such completion date may be extended by approved Change Orders. The time set forth for completion of the work for each Job Order is an essential element of the Contract. ARTICLE III. 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 three (3) additional one (1) year terms with the written consent of both parties. No Job Orders may be issued after the expiration date, except that the terms of the Contract shall survive as to any work in progress, unfinished work, defective work, and warranty and indemnification obligations of the Contractor on or after such expiration date. 2 ARTICLE IV, COMPENSATION The Owner shall pay the Contractor for performance of the Contract on a Job Order basis based on the associated Statement of Work, subject to additions and deductions provided therein, and make payment on account as hereinafter provided. The price for a job or project ordered by the Owner under this Contract (the" Job Order Sum") shall be based on the Unit Price Book and the Contractor's Coefficient, and any non-prepriced items. Non-prepriced items shall not exceed ten percent (10%) of the value of the Job Order. The Owner shall have the unconditional right to withdraw its Job Order at any time before or after the Contractor has submitted its proposal for the Job Order. For a Job Order or project under this Contract to become effective, it must be (a) signed by the Owner and the Contractor, (b) a fixed price, lump sum contract, and (c) based on a Statement of Work which may be negotiated between the Owner and the Contractor. MINIMUM CONTRACT VALUE: As an inducement for Contractor to offer a lower Coefficient, Owner has agreed that it shall use its best efforts to issue Job Orders to Contractor totaling at least Five hundred and Thousand Dollars ($500,000.00) during the term of this Contract (the "Minimum Value"). If, at the Expiration Date, the Minimum Value has not been attained, the Expiration Date shall be extended until Job Orders have been issued causing the Minimum Value to be attained, provided that Contractor is not in default hereunder, and Owner has been reasonably satisfied with Contractor's performance. Notwithstanding the foregoing, Owner shall have no obligation to issue Job Orders, the value of which total the Minimum Value, if Contractor is in default or breach under this Contract; the Texas Legislature fails to appropriate or allot the necessary funds, the City Council of the City of Lubbock fails to allocate the necessary funds; or Owner is prevented from so doing by reason of unusually inclement weather, strikes, labor disputes, fire, war and acts of war, riots and acts of the public enemy, acts of God, or any other reason reasonably beyond the control of Owner, regardless of whether such cause was reasonably anticipatable; or if Contractor fails, declines, or is unable to perform any the work described by any Job Order or Statement of Work proposed by Owner during the term of this Contract. ARTICLE V. 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. 3 ARTICLE VI. 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 Job Order Contracting, 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. 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 VII. LIQUIDATED DAMAGES AND CERTIFICATIONS LIQUIDATED _DAMAGES.: For each consecutive calendar day after the completion period set forth in any Job Order issued hereunder that any work, including the correction of deficiencies found during the final testing and inspection, is not completed, the amount of Twenty Five Dollars ($25.00), unless a different amount is specified in the particular Job Order, will be deducted from the money due or which becomes due the Contractor for the Job Order, not as a penalty but as liquidated damages representing the parties' estimate at the time of contract execution of the damages which the Owner will sustain for late completion. 4 CERTIFICATIONS: Family Code Child Support Certification. By signing this Agreement, the undersigned certifies as follows: "Under Section 231.006, Texas Family Code, the vendor or applicant certifies that the individual or business entity named in this contract, bid, or application is not ineligible 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." Sales and Use Tax Certification. By signing this Agreement, the undersigned certifies as follows: "Under Section 2155.004, Texas Government Code, the vendor or applicant certifies that the individual or business entity named in this bid or contract is not ineligible to receive the specified contract and acknowledges that this contract may be terminated and payment withheld if this certification is inaccurate." ARTICLE VIII. 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 IX. INSURANCE A. General. The insurance requirements listed herein are MINIMUM requirements. The City must approve all policies prior to the commencement of any activities whether performed by CONTRACTOR, subcontractor, agents, or third parties The City reserves the right to review the insurance requirements of this section during the effective period of the contract and to require adjustment of insurance coverages and their limits when deemed necessary and prudent by the City based upon changes in statutory law, court decisions, or the claims history of the industry as well as the Contractor. The insurance carrier must be an insurance company authorized to transact business in the State of Texas. A Certificate of Insurance specifying each and all coverages 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 as a primary 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. Subject to the Contractor's right to maintain reasonable deductibles in such amounts: as are approved by the City; the Contractor shall obtain and maintain in full force and effect for the duration of this contract, and any extension hereof at Contractor's scale expense, insurance coverage written by conaanies approved by the State of Texas, having a Best's Financial rating of A or better, and acceptable to the City, in the Mowing type(s) and amounts: 5 B. Required Coverage. CONTRACTOR shall obtain and maintain policies of insurance throughout the Contract term in limits specified below. Workers' Compensation - The Contractor shall elect to obtain workers' compensation coverage pursuant to Section 406.002 of the Texas Labor Code. Further, Contractor shall maintain said coverage throughout the term of this Contract and shall comply with all provision of Title 5 of the Texas Labor Code to ensure that the Contractor maintains said coverage. Any termination of workers' compensation insurance coverage by Contractor or any cancellation or non -renewal of workers' compensation insurance coverage for the Contractor shall be a material breach of this contract. The policy must be endorsed to include a waiver of subrogation in favor of the City of Lubbock. In the event of sole proprietor, a signed waiver advising same will be acceptable. The Contractor shall also provide to the City of Lubbock Proof of Employers' Liability in an amount no less than $100,000. Commercial General (public) Liability insurance including Products/Completed Operations coverage and, WHEN APPLICABLE, an endorsement for Heavy Equipment for the following: General Aggregate of $300,000 Comprehensive Automobile Liability insurance, including: a. All Owned vehicles Combined Single Limit for bodily injury and b. Non -owned vehicles property damage of $ 100,000 per occurrence c. Hired vehicles Coverage for loading and unloading of $1 00,000per occurrence hazards, or its equivalent. Builder's Risk: on Job Orders greater than $25,000 ADDITIONAL POLICY ENDORSEMENTS The following endorsements will be required upon award of projects. The City shall be entitled, upon request, and without expense, to receive copies of the policies and all endorsements thereto and may make any reasonable request for deletion, revision, or modification of particular policy terms, conditions, limitations, or exclusions (except where policy provisions are established by law or regulation binding upon either of the parties hereto or the underwriter of any of such policies). Upon such request by the City, the Contractor shall exercise reasonable efforts to accomplish such changes in policy coverages, and shall pay the cost thereof. 6 REQUIRED PROVISIONS The Contractor agrees that with respect to the above required insurance, all insurance contracts and certificate(s) of insurance will contain and state, in writing, on the certificate or its attachment, the following required provisions: a. Name the City and its officers, employees, and elected representatives as primary additional insureds, (as the interest of each insured may appear) as to all applicable coverage; b. Provide for 30 days written notice to the City for cancellation, nonrenewal, or material change; c. Provide for notice to the City at the address shown below by registered mail; d. The Contractor agrees to waive subrogation against the City, its officers, employees, and elected representatives for injuries, including death, property damage, or any other loss to the extent same may be covered by the proceeds of insurance; e. Provide that all provisions of this contract concerning liability, duty, and standard of care together with the indemnification provision, shall be underwritten by contractual liability coverage sufficient to include such obligations within applicable policies. f. All copies of the Certificates of Insurance shall reference the project name or bid number for which the insurance is being supplied. NOTICES The Contractor shall notify the City in the event of any change in coverage and shall give such notices not less than 30 days prior the change, which notice must be accompanied by a replacement CERTIFICATE OF INSURANCE. All notices shall be given to the City at the following address: Bruce MacNair Interim Public Works Contracting Officer City of Lubbock 1625 13`h Street, Suite, 102 Lubbock, Texas 79401 Approval, disapproval, or failure to act by the City regarding any insurance supplied by the Contractor shall not relieve the Contractor of full responsibility or liability for damages and accidents as set forth in the contract documents. Neither shall the bankruptcy, insolvency, or denial of liability by the insurance company exonerate the Contractor from liability. 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 forth herein, and to provide to CONTRACTOR, prior to such person performing any such activities, a Certificate of Insurance establishing such coverage. 7 ARTICLE X. 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 M. 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 XII. 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 XIII. COMPLIANCE WITH APPLICABLE LAWS CONTRACTOR shall comply with all applicable federal, state and local laws, statutes, ordinances, rales and regulations relating, in any way, manner or form, to the activities under this Contract, and any amendments thereto. ARTICLE XIV. 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. B. CONTRACTOR's Address. CONTRACTOR's address and numbers for the purposes of notice are: 8 Basic Industries, Inc. Telephone: (432) 281-7697 Attn: Debra Lindsey, Program Manager Facsimile: (432) 281-7723 4500 West Illinois, Ste. 303 Midland, Texas 79703 C. City's Address. The City's address and numbers for the purposes of notice are: City of Lubbock Attn: Facilities Management P. 0. Box 2000 1625 13th Street Lubbock, Texas 79457 Telephone: (806) 775 - 2275 Facsimile: (806) 775 - 3267 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 XV. 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. 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. 9 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. EXECUTED as of the Effective Date hereof. CONTRACTOR: Basic Industries, Inc. r By: PRINTED NAME: Debra Lindsey TITLE: Program Manager COMPLETE ADDRESS Company Basic Industries, Inc. Address -4500 West Illinois, Ste. 303 City, State, Zip Midland, Texas 79703 M CITY OF LUBBO T {AS (OWNER): MAYOR ATTEST: City Secretary APPROVED AS TO CONT NT: ',�tOwner's Represe e MAW— Director APPROVED AS TO FORM: Secretary A0 - Attorney /Attorney 10 rr.mm� � L15A Imp tcacrWafn swik Suge 30M i*Kiowt. 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