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HomeMy WebLinkAboutResolution - 6625 - Contract - Wesco Distributions Inc.- Electric Utility Inventory Items - 12/09/1999Resolution No. 6625 Dec. 9, 1999 Item No. 29 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 Electric Utility Inventory Items, by and between the City of Lubbock and Wesco Distribution, Inc. Secondary Vendor of Amarillo, 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 9th day of December 1999. WINDY sitroi4, MAYOR ATTEST: Kaythi8 Darnell, City Secretary APPROVED AS TO CONTENT: ye-�n Victor Kihn , Purchasing Manager APPROVED AS TO FORM: William de Haas Competition and Contracts Manager/Attorney gs:ccdocs/Elec Util Inven Items -Wesco Secondary December 2, 1999 k Resolution No. 6625 Dec. 9, 1999 Item No. 29 SECONDARY VENDOR CONTRACT STATE OF TEXAS § COUNTY OF LUBBOCK § This contract, (the "Contract"), effective as of January 1, 2000, (the "Effective Date"), is by and between the City of Lubbock, (the "City"), a Texas Home Rule Municipal Corporation, and WESCO Distribution, Incorporated, a Texas corporation, whose principal place of business is located at 1400 Northeast 3`d Avenue, Amarillo, Potter County, Texas (the "Contractor"). WITNESSETH WHEREAS, the City requires a contractor to procure, warehouse, and deliver, on request, Electrical Inventory Items, and WHEREAS, the Contractor is qualified and willing to procure, warehouse, and deliver, on request, Electrical Inventory Items, 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 TERM The term of this Contract commences on the Effective Date and continues without interruption for a term of two (2) years from and after the Effective Date. The term may be extended for three (3) additional one (1) year terms with the written consent of both parties. ARTICLE H COMPENSATION Contractor shall be paid in accordance with their bid submitted on July 13, 1999 for ITB #99017. ARTICLE III TERMINATION 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 WORK A. General. Contractor shall procure, warehouse, and deliver to the City of Lubbock Central Warehouse all items listed in Exhibit A, attached hereto, on an as needed basis Electrical Inventory Items. B. Account representative. Contractor shall assign an Account Representative whose function shall be to facilitate all day -today business transactions. The Account Representative shall conduct a service visit to the City on days and at times mutually agreeable to both parties or as required by the City. An alternative Account Representative shall provide the same service when the primary is unavailable for any reason. The Contractor shall provide name(s), phone number(s), and resume(s) of Account Representative and alternate Account Representative. At no time shall the visitation schedule be disrupted. C. Quantities. 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. D. Periodic performance meetings. A weekly general performance meeting shall be scheduled during the first ninety- (90) days of the contract and shall include City personnel and Contractor's account representative. The intent of the meeting will be to review day to day performance of the Contractor's service. After ninety (90) days, the meetings will be held monthly, and as required by City. E. 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. Delivery of emergency items outside of standard business hours shall be accomplished as mutually agreed upon by the Contractor and the City's Representative. F. Reports. For items covered under this contract, Contractor shall provide a monthly report of the inventory listing all on -hand quantities, items and quantities ordered by the City, items and quantities delivered by Contractor to the City, and items and quantities ordered for the City by the Contractor. G. 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.). H. 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. Contractor further represents and warrants to the City that the occurrence in or use by the equipment or product containing computer code of dates on or after January 1, 2000 ("Millennial Dates"), will not adversely affect the performance of such equipment or product with respect to date -dependent data, computations, output, or other functions (including, without limitation, calculating, comparing, and sequencing) and that such equipment or product will create, store, process, and output information related to or including Millennial Dates without error or omissions and at no additional cost to the City. At the City's request, Contractor will provide evidence sufficient to demonstrate such equipment or product meets the foregoing. I. Right of Inspection. City shall have the right to inspect the goods at delivery before accepting them. J. 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 Purchasing Department, 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. K. Prices and Price Adjustment. 1. All prices shown on Exhibit A shall be F.O.B. Destination and shall include all charges that may be imposed in fulfilling the terms of this contract. 2. The Contractor warrants that the unit price stated herein shall remain firm for a period of not less than 180 calendar days from the first day of the contract period. If the Contractor's unit price is increased after 180 days, the contract unit price may be increased upon approval of the Contractor's written request to the City of Lubbock Purchasing Manager. Such request shall include as a minimum, (1) the cause for adjustment; (2) proposed effective date of increase; (3) the amount of the change requested with documentation to support the requested adjustment (i.e., appropriate Bureau of Labor Statistics, Consumer Price Index (CPI -in change in manufacturer's price, etc.) Such price adjustment shall be by the same percentage as documented and the contract shall be modified accordingly provided that: a. The total of the increase in a contract unit price made under this clause during the initial contract period .shall not exceed a total of five percent (5%) of the original contract unit price. If the contract is renewed, the percentage increase shall not exceed five percent (5%) per contract period on the price(s) prevailing at the time of renewal; b. The increased contract unit price may be effective after 180 calendar days provided that the Contractor submits a written request, with supporting documentation, for an increase at least thirty (30) calendar days prior to the proposed effective date of the price increase; c. The increased contract unit price shall not apply to orders received by the Contractor prior to the effective date of the increased contract unit price. Orders placed, via City of Lubbock Purchase Order, shall be considered to have been received by the Contractor after the fifth (50) calendar day following the date of signature by the City of Lubbock Purchasing Manager or his authorized representative; d. Such requested contract unit price increase shall become effective only upon approval by the City of Lubbock Purchasing Manager, e. Within thirty (30) calendar days after receipt of a Contractor's written request, the City of Lubbock Purchasing Manager may cancel, without liability to either party, any portion of the contract affected by the requested increase and undelivered at the time of such cancellation. - 3. Price Reduction. If at any time after the effective date of the contract, the Contractor makes a general price reduction in the comparable price of any material covered by the contract to customers generally, an equivalent price reduction based on similar quantities and/or considerations shall apply to this contract for the duration of the contract period (or until the price is further reduced). Such price reduction shall be effective at the same time and in the same manner as the reduction in the price to customers generally. For purpose of this provision, a "general price reduction" shall mean any horizontal reduction in the price of an article or service offered (1) to Contractor's customers generally, or (2) in the Contractor's price schedule for the class of customers, i.e., wholesalers, jobbers, retailers, etc., which was used as the basis for bidding on this solicitation. An occasional sale ata lower price, or sale of distressed merchandise at a Iower price would be considered a "general price reduction" under this provision. The Contractor shall submit his or her invoice at such reduced prices indicating on the invoice that the reduction is pursuant to the "Price Reduction" provision of the contract documents. The Contractor in addition, will within ten days of any general price reduction notify the Purchasing Manager of such reduction by letter. FAILURE TO DO SO MAY RESULT IN TERMINATION OF THE CONTRACT. Upon receipt of any such notice of a general price reduction, all ordering offices will be duly notified by the Purchasing Manager. The Contractor, if requested, shall furnish, within ten days after the end of the contract period, a statement certifying either (1) that no general price reduction ,as defined above, was made after the date of the bid, or (2) if any such general price reductions were made, that as provided above, they were reported to the Purchasing Manager within ten (10) days and ordering offices were billed at the reduced prices. Where one or more such general price reductions were made, the statement furnished by the Contractor shall include with respect to each price reduction (1) the date when notice of any such reduction was issued, (2) the effective date of the reduction, and (3) the date when the Purchasing Manager was notified of any such reduction. 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 VII INSURANCE A. General. Contractor shall procure and carry, at its sole cost and expense through the life of this Contract insurance protection hereinafter specified, in form and substance satisfactory to the City. City must approve all policies prior to the commencement of any activities whether performed by the Contractor, subcontractor, agents, or third parties. The insurance carrier must be an insurance company authorized to transact business in the State of Texas and have a Best's Financial rating of A:VII. A Certificate of Insurance specifying each and all coverage 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 an 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. B. Required Coverage. Contractor shall obtain and maintain policies of insurance throughout the Contract term in limits specified below. 1. Worker's Compensation. The Contractor shall maintain Workers' Compensation and Employer's Liability insurance coverage as required by statute or coverage approved by the City Risk Management Coordinator. 2. Commercial General Liability. The Contractor shall maintain Commercial General Liability coverage endorsed to include premises/operations, contractual liability, and independent contractors' and completed operations. The policy shall have a minimum of One Million and no/100 Dollars ($1,000,000) combined single limit in the aggregate and per occurrence. 3. Commercial Automobile Liability. The Contractor shall maintain Commercial Automobile Liability coverage with a minimum of One Million and no/100 Dollars ($1,000,000) combined single for Bodily Injury and Property Damage and shall include any auto or in the alternative, owned autos, non -owned autos and hired autos. 4. Umbrella Liability Insurance. The Contractor shall maintain Umbrella Liability Insurance coverage in the amount of Two Million and no/100 Dollars ($2,000,000) with coverage corresponding to the Commercial General Liability, Commercial Automobile Liability and Professional Liability policies. C. Subcontractors. The 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. 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 insureds, 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 Contractor shall indemnify, defend, keep and save harmless the City, its agents, officials and employees, against all injuries, deaths, loss, damages, claims, patent claims, suits, liabilities, judgments, costs and expenses, which may in anywise arise or accrue against the City in consequence of the granting of this Contract or which may anywise result therefrom, whether or not it shall be alleged or determined that the act was caused through negligence or omission of the Contractor or its employees, or of the subcontractor or assignee or its employees, if any, and the Contractor shall, at his own expense, appear, defend and pay all charges of attorneys and all costs and other expenses arising therefrom or incurred in connection therewith, and, if any judgment shall be rendered against the City in any such action, the Contractor shall, at its own expenses, satisfy discharge the same. Contractor expressly understands and agrees that any bond required by this Contract, or otherwise provided by Contractor, shall in no way limit the responsibility to indemnify, keep and save harmless and defend the City as herein provided. 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 MISCELLANEOUS 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. are: B. Contractor's Address. Contractor's address and numbers for the purposes of notice Attn: Johnny Andrews 1400 Northeast 3'd Avenue Amarillo, TX 79107 Telephone: 800/888-7062 Facsimile: 800/276-1303 C. City's Address. The City's address and numbers for the purposes of notice are: City of Lubbock Attn: Helen Bums P. O. Box 2000 1625 13th Street Lubbock, Texas 79457 Telephone: (806) 775-2168 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. 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. Records. Contractor shall maintain records that are necessary to substantiate the services provided by the Contractor. C. Assignability. Contractor may not assign this Contract without the prior written approval of the City. D. Successor and Assigns. This Contract binds and inures to the benefit of the City, Contractor, and their respective successors, legal representatives, and assigns. E. 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. F. 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. G. 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. H. 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. ATTEST Kaythi4 Darnell City Secretary O APPROVED AS TO CONTENT: V`W4" - Victor Kihn Purchasing Manager APPROVED AS TO FORM: �,�-- /,& William de Haas Competition and Contracts Manager