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HomeMy WebLinkAboutResolution - 2006-R0536 - Contract - Ferguson Enterprises Inc. - Water Inventory Items - 11/09/2006Resolution No. 2006 80536 November 9, 2006 Item No. 5.16 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 Ferguson Enterprises, Inc., of Lubbock, Texas, for water inventory items—annual pricing per ITB 06 -053 -MA, 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 9th day of ,ATTEST: City Secretary APPROVED AS TO CONTENT: vi G� Victor Kilian, Director of Purchasing and Contract Management APPROVED AIMO FORM: Don Vandiver; Attorney of DDres/FergusonEnterptises06ConRes October 20, 2006 November , 2006. DAVIDMILLER, MAYOR Resolution No. 2006-RO536 CONTRACT FOR SERVICES FOR WATER INVENTORY ITEMS - ANNUAL PRICING Bid No. 06 -053 -MA CONTRACT #7262 THIS CONTRACT, (the "Contract"), effective as of November 9, 2006, (the "Effective Date"), is by and between the City of Lubbock, (the "City"), a Texas Home Rule Municipal Corporation, and Ferguson Enterprises, Inc., a Texas corporation, whose principal place of business is located at Lubbock, Lubbock County, Texas (the "Contractor"). WITNESSETH: WHEREAS, the City requires a contractor to procure, warehouse, and deliver, on request, repair parts for the City Water Department, and WHEREAS, the Contractor is qualified and willing to procure, warehouse, and deliver, on request, repair parts for the City Water Department, and WHEREAS, the City desires to contract with Contractor to provide the service, 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 ITEM The tern of this Contract commences on the Effective Date and continues without interruption for a term of one year from and after the Effective Date. The contract may be extended for an additional one-year term, upon mutual agreement between the City of Lubbock and the supplier at the end of the initial contract term. ARTICLE II COMPENSATION Contractor shall be paid in accordance with their bid submitted on August 10, 2006 for ITB #06 -053 -MA. ARTICLE III TERMINATION A. General. City may terminate contract, for any reason, upon ninety- (94) days written notice to Contractor. B. Termination and remedies. In the event the 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, immediate 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. 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 the Contractor. This Contract constitutes legal, valid, and binding obligations of the Contractor and is enforceable in accordance with the terms thereof. D. Contractor. Contractor maintains a professional staff and employs, as needed, other qualified specialists experienced in procuring, warehousing, and delivering repair parts, 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 procuring, warehousing, and delivering repair parts, as contemplated hereby. If any of the activities of the 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 the Contractor did not perform said activities (or omitted the performance of said activities) in a good and workmanlike manner. ARTICLE V SCOPE OF WORD A. General. Contractor shall procure, warehouse, and deliver to the City of Lubbock Central Warehouse all items listed in BID FORM attached hereto, on an as needed basis all repair parts for the City's Water Department on request. B. Out of stock items. In the event the Contractor cannot supply the City regularly stocked products within twenty-four (24) hours, Contractor shall give immediate notice to the City of Lubbock Purchasing Manager and City may obtain the product from another source. The Contractor will be charged the difference in price between the price paid by the City and the Contract price, plus freight, if any. The City will not charge the Contractor for items purchased from other sources when the outage is caused by nationwide outages or manufacturer recalls. C. Quantities. The Contractor shall maintain all items listed in BID FORM at a minimum fill rate of 99%. Acceptance of alternate items or products by City will not constitute compliance with the minimum fill rate requirement, with the exception of the product manufacturer's inability to fill an order. D. Minimum quantities requested by City. The Contractor agrees that the City has made no representation, guaranty, or commitment that the City will purchase any minimum quantity of products under this Contract. The Contractor further agrees that any inventories, residual or otherwise, which the Contractor may establish or which may otherwise arise from the Contractor's performance under this Contract, shall be at the sole risk and responsibility of the Contractor. E. The City Purchasing Manager as needed shall schedule periodic performance meetings. The intent of the meetings will be to review day-to-day performance of the Contractor's services. The meeting shall include City personnel and Contractor's account representative. F. Time. It is agreed and understood that time is of the essence for the performance of this Contract, and failure by Contractor to meet the time specifications of this Contract will cause Contractor to be in default of this Contract. G. Delivery. Deliveries will be made directly to the City of Lubbock Central Warehouse, 302 Municipal Drive, Lubbock, Texas, and to other locations as required from time to time. Contractor shall fill routine requests within six (6) hours of City's request. Emergency orders, defined as disruption related to an essential service when supplies/services are needed for immediate use in work which may vitally affect the public health, welfare, or safety, placed during standard business hours within two (2) hours after receipt of order. Delivery of emergency items outside of standard business hours shall be accomplished as mutually agreed upon by the Contractor and the City's Representative. H. Account representative. Contractor shall assign an Account Representative whose function shall be to facilitate all day-to-day business transactions. The Account Representative shall conduct a service visit to the City each Monday, Wednesday, and Friday at 8:00 a.m. or as required by the City. An alternative Account Representative shall provide the same service when the primary is unavailable for any reason. At no time shall the visitation schedule be disrupted. I. Reports. Contractor shall provide a monthly report of the inventory listing all items: on -hand, ordered by City, delivered by Contractor, and ordered. J. Material Safety Data Sheets. Contractor shall provide Material Safety Data Sheets (MSDS) for all chemicals to comply with provisions of the Texas Hazard Communication Act, Title 6, Subchapter D, Chapter 502, Texas Health and Safety Code Ann. (This Act is corollary to OSHA Standard 29 CRF 1910.1200, which is generally known as the Right to Know Law.). K. Product Guarantee. Contractor guarantees equipment or product offered will meet or exceed specifications identified in this bid invitation. The Contractor shall, upon request, replace any equipment or product proved to be defective and make any and all adjustments necessary without any expense to the City. If at any time, the equipment or product cannot satisfactorily meet the requirements of the specifications, the Contractor shall upon written request from the City, promptly remove such equipment or product without any further expense to the City. L. Right of Inspection. City shall have the right to inspect the goods at delivery before accepting them. M. Invoices. Contractor shall submit separate invoices, in duplicate, on 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, shall be attached to the invoice. Mail to Accounts Payable, City of Lubbock, P.O. Box 2000, Lubbock, Texas 79457. Payment shall not be due unless and until the Seller shall not be in default under the terms of this Contract, and until the above instruments are submitted after delivery. ARTICLE VI INDEPENDENT CONTRACTOR STATUS Contractor and City agree that Contractor shall perform the duties under this Contract as an independent contractor. The Contractor has the sole discretion to determine the manner in which the services are to be performed. 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 insured, insurance as described in Article VI of 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 City of Lubbock shall not be liable or responsible for, and shall be saved and held harmless by Contractor from and against any and all suits, actions, losses, damages, claims, or liability of any character, type, or description, including 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, directly or indirectly, in whole or in part, the performance of Contractor under this agreement, including claims and damages arising in whole or in part from the negligence of City of Lubbock. It is the expressed intent of the parties to this Agreement that the indemnity provided for in this section is an indemnity extended by Contractor to indemnify and protect City of Lubbock from the consequences of City's own negligence, whether that negli2ence is the sole or contributory cause of the resultant in'u death, or damage. ARTICLE XI COMPLIANCE WITH APPLICABLE LAW 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. 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. B. Contractor's Address. Contractor's address and numbers for the purposes of notice are: Attn: Mike Wolfe Ferguson Enterprises, Inc. 600242 nd Street Lubbock, Texas 79407 Telephone: (806) 784-3140 Facsimile: (806) 788-0516 City's Address. The City's address and numbers for the purposes of notice are: City of Lubbock Attn: Marta Alvarez, Purchasing Manager P. d. Box 2000 1625 13th Street Lubbock, Texas 79457 Telephone: (806) 775-2572 Facsimile: (806) 775-2164 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. 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 the Contractor and City. C. Records. Contractor shall maintain records that are necessary to substantiate the services provided by the 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 the Contractor and City. I. Entire Agreement. This Contract, including Exhibit A hereto, 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 CITY OF LUBBOCK DAVID A.MILLER, MAYOR ATTEST: Rebecca G4fza City Secretary APPROVED AS TO CONTENT: V,�!& Victor Kilm Director of Purchasing and Contract Management APPROVED AS TO FORM: orney By: Gr� 14 - Title: C M