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SUPPLY AGREEMENT NO. 2008
Emulsified Polymerized Asphalt(HFRS-2P)
1852
THIS Emulsified Polymerized Asphalt (HFRS-2P) Supply Agreement ("Agreement") is
entered into by and between the City of Corpus Christi, a Texas home-rule municipal
corporation ("City") and Ergon Asphalt & Emulsions, Inc. ("Supplier"), effective upon
execution by the City Manager or the City Manager's designee ("City Manager").
WHEREAS, Supplier has bid to provide Emulsified Polymerized Asphalt (HFRS-2P) in
response to Request for Bid No. 2008 ("RFB"), which RFB includes the required scope
of work and all specifications and which RFB and the Supplier's bid response
are incorporated by reference in this Agreement as Exhibits 1 and 2, respectively, as if
each were fully set out here in its entirety.
NOW, THEREFORE, City and Supplier agree as follows:
1. Scope. Supplier will provide Emulsified Polymerized Asphalt (HFRS-2P) in
accordance with the attached Scope of Work, as shown in Attachment A, the
content of which is incorporated by reference into this Agreement as if fully set
out here in its entirety. "Goods," "products", and "supplies", as used in this
Agreement, refer to and have the same meaning.
2. Term. This Agreement is for 36 months. The parties may mutually extend the term
of this Agreement for up to zero additional zero-month periods ("Option
Period(s)"), provided, the parties do so in writing and prior to the expiration of the
original term or the then-current Option Period. The City's extension authorization
must be executed by the City Manager or designee.
3. Compensation and Payment. This Agreement is for an amount not to exceed
$2,250,000.00, subject to approved extensions and changes. Payment will be
made for goods delivered and accepted by the City within 30 days of
acceptance, subject to receipt of an acceptable invoice. All pricing must be in
accordance with the attached Bid/Pricing Schedule, as shown in Attachment B,
the content of which is incorporated by reference into this Agreement as if fully
set out here in its entirety. Any amount not expended during the initial term or
any option period may, at the City's discretion, be allocated for use in the next
option period.
C2019-067
2/19/19 Page 1 of 7
M2019-027 n" 1, 2018
Ergon Asphalt& Emulsions
SCANNED
Invoices will be mailed to the following address with a copy provided to the
Contract Administrator:
City of Corpus Christi
Attn: Accounts Payable
P.O. Box 9277
Corpus Christi, Texas 78469-9277
4. Contract Administrator. The Contract Administrator designated by the City is
responsible for approval of all phases of performance and operations under this
Agreement, including deductions for non-performance and authorizations for
payment. The City's Contract Administrator for this Agreement is as follows:
Name: Peter Muniz
Department: Street Operations
Phone: (361) 826-1951
Email: petermu@cctexas.com
5. Insurance. Before performance can begin under this Agreement, the Supplier
must deliver a certificate of insurance ("COI"), as proof of the required insurance
coverages, to the City's Risk Manager and the Contract Administrator.
Additionally, the COI must state that the City will be given at least 30 days'
advance written notice of cancellation, material change in coverage, or intent
not to renew any of the policies. The City must be named as an additional insured.
The City Attorney must be given copies of all insurance policies within 10 days of
the City Manager's written request. Insurance requirements are as stated in
Attachment C, the content of which is incorporated by reference into this
Agreement as if fully set out here in its entirety.
6. Purchase Release Order. For multiple-release purchases of products to be
provided by the Supplier over a period of time, the City will exercise its right to
specify time, place and quantity of products to be delivered in the following
manner: any City department or division may send to Supplier a purchase release
order signed by an authorized agent of the department or division. The purchase
release order must refer to this Agreement, and products will remain with the
Supplier until such time as the products are delivered and accepted by the City.
7. Inspection and Acceptance. City may inspect all products supplied before
acceptance. Any products that are delivered but not accepted by the City must
be corrected or replaced immediately at no charge to the City. If immediate
correction or replacement at no charge cannot be made by the Supplier, a
replacement product may be bought by the City on the open market and any
costs incurred, including additional costs over the item's bid price, must be paid
by the Supplier within 30 days of receipt of City's invoice.
Supply Agreement Standard Form Page 2 of 7
Approved as to Legal Form October 1, 2018
8. Warranty.
(A) The Supplier warrants that all products supplied under this Agreement are
new, quality items that are free from defects, fit for their intended purpose, and of
good material and workmanship. The Supplier warrants that it has clear title to
the products and that the products are free of liens or encumbrances.
(B) In addition, the products purchased under this Agreement shall be
warranted by the Supplier or, if indicated in Attachment D by the manufacturer,
for the period stated in Attachment D. Attachment D is attached to this
Agreement and is incorporated by reference into this Agreement as if fully set
out here in its entirety.
9. Quality/Quantity Adjustments. Any quantities indicated on the Bid/Pricing
Schedule are estimates only and do not obligate the City to order or accept more
than the City's actual requirements nor do the estimates restrict the City from
ordering less than its actual needs during the term of the Agreement and including
any Option Period. Substitutions and deviations from the City's product
requirements or specifications are prohibited without the prior written approval of
the Contract Administrator
10. Non-Appropriation. The continuation of this Agreement after the close of any
fiscal year of the City, which fiscal year ends on September 30th annually, is subject
to appropriations and budget approval specifically covering this Agreement as
an expenditure in said budget, and it is within the sole discretion of the City's City
Council to determine whether or not to fund this Agreement. The City does not
represent that this budget item will be adopted, as said determination is within the
City Council's sole discretion when adopting each budget.
11. Independent Contractor. Supplier will perform the work required by this
Agreement as an independent contractor and will furnish such products in its own
manner and method, and under no circumstances or conditions will any agent,
servant or employee of the Supplier be considered an employee of the City.
12. Subcontractors. Supplier may use subcontractors in connection with the work
performed under this Agreement. When using subcontractors, however, the
Supplier must obtain prior written approval from the Contract Administrator unless
the subcontractors were named in the bid or in an attachment to this Agreement.
In using subcontractors, the Supplier is responsible for all their acts and omissions
to the same extent as if the subcontractor and its employees were employees of
the Supplier. All requirements set forth as part of this Agreement, including the
necessity of providing a COI in advance to the City, are applicable to all
subcontractors and their employees to the same extent as if the Supplier and its
employees had performed the work.
Supply Agreement Standard Form Page 3 of 7
Approved as to Legal Form October 1, 2018
13. Amendments. This Agreement may be amended or modified only in writing
executed by authorized representatives of both parties.
14. Waiver. No waiver by either party of any breach of any term or condition of this
Agreement waives any subsequent breach of the same.
15. Taxes. The Supplier covenants to pay payroll taxes, Medicare taxes, HCA taxes,
unemployment taxes and all other applicable taxes. Upon request, the City
Manager shall be provided proof of payment of these taxes within 15 days of such
request.
16. Notice. Any notice required under this Agreement must be given by fax, hand
delivery, or certified mail, postage prepaid, and is deemed received on the day
faxed or hand-delivered or on the third day after postmark if sent by certified mail.
Notice must be sent as follows:
IF TO CITY:
City of Corpus Christi
Attn: Peter Muniz
Title: Finance & Resource Managerr
Address: 2525 Hygeia St., Corpus Christi, Texas 78415
Phone: (361) 826-1951
Fax: (361) 826-1627
IF TO SUPPLIER:
Ergon Asphalt & Emulsions, Inc.
Attn: Ernesto Santillan
Title: Area Sales Manager
Address: 11612 RM 2244, Building I, Suite 250, Austin, Texas 78738
Phone: (512) 469-9292
Fax: (512) 469-0391
17. SUPPLIER SHALL FULLY INDEMNIFY, HOLD HARMLESS AND DEFEND THE
CITY OF CORPUS CHRISTI AND ITS OFFICERS, EMPLOYEES AND AGENTS
("INDEMNITEES") FROM AND AGAINST ANY AND ALL LIABILITY, LOSS,
CLAIMS, DEMANDS, SUITS, AND CAUSES OF ACTION OF WHATEVER
NATURE, CHARACTER, OR DESCRIPTION ON ACCOUNT OF PERSONAL
INJURIES, PROPERTY LOSS, OR DAMAGE, OR ANY OTHER KIND OF
INJURY, LOSS, OR DAMAGE, INCLUDING ALL EXPENSES OF LITIGATION,
COURT COSTS, ATTORNEYS' FEES AND EXPERT WITNESS FEES, WHICH
ARISE OR ARE CLAIMED TO ARISE OUT OF OR IN CONNECTION WITH A
BREACH OF THIS AGREEMENT OR THE PERFORMANCE OF THIS
Supply Agreement Standard Form Page 4 of 7
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AGREEMENT BY THE SUPPLIER OR RESULTS FROM THE NEGLIGENT ACT,
OMISSION, MISCONDUCT, OR FAULT OF THE SUPPLIER OR ITS EMPLOYEES
OR AGENTS. SUPPLIER MUST, AT ITS OWN EXPENSE, INVESTIGATE ALL
CLAIMS AND DEMANDS, ATTEND TO THEIR SETTLEMENT OR OTHER
DISPOSITION, DEFEND ALL ACTIONS BASED THEREON WITH COUNSEL
SATISFACTORY TO THE CITY ATTORNEY, AND PAY ALL CHARGES OF
ATTORNEYS AND ALL OTHER COSTS AND EXPENSES OF ANY KIND
ARISING OR RESULTING FROM ANY SAID LIABILITY, DAMAGE, LOSS,
CLAIMS, DEMANDS, SUITS, OR ACTIONS. THE INDEMNIFICATION
OBLIGATIONS OF SUPPLIER UNDER THIS SECTION SHALL SURVIVE THE
EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT.
18. Termination.
(A) The City Manager may terminate this Agreement for Supplier's failure to
perform the work specified in this Agreement or to keep any required insurance
policies in force during the entire term of this Agreement. The Contract
Administrator must give the Supplier written notice of the breach and set out a
reasonable opportunity to cure. If the Supplier has not cured within the cure
period, the City Manager may terminate this Agreement immediately thereafter.
(B) Alternatively, the City Manager may terminate this Agreement for
convenience upon 30 days advance written notice to the Supplier. The City
Manager may also terminate this Agreement upon 24 hours written notice to the
Supplier for failure to pay or provide proof of payment of taxes as set out in this
Agreement.
19. Assignment. No assignment of this Agreement by the Supplier, or of any right or
interest contained herein, is effective unless the City Manager first gives written
consent to such assignment. The performance of this Agreement by the Supplier
is of the essence of this Agreement, and the City Manager's right to withhold
consent to such assignment is within the sole discretion of the City Manager on
any ground whatsoever.
20. Severability. Each provision of this Agreement is considered to be severable and,
if, for any reason, any provision or part of this Agreement is determined to be
invalid and contrary to applicable law, such invalidity shall not impair the
operation of nor affect those portions of this Agreement that are valid, but this
Agreement shall be construed and enforced in all respects as if the invalid or
unenforceable provision or part had been omitted.
Supply Agreement Standard Form Page 5 of 7
Approved as to Legal Form October 1, 2018
21. Order of Precedence. In the event of any conflicts or inconsistencies between this
Agreement, its attachments, and exhibits, such conflicts and inconsistencies will
be resolved by reference to the documents in the following order of priority:
A. this Agreement (excluding attachments and exhibits);
B. its attachments;
C. the bid solicitation document including any addenda (Exhibit 1); then,
D. the Supplier's bid response (Exhibit 2).
22. Certificate of Interested Parties. Supplier agrees to comply with Texas Government
Code Section 2252.908, as it may be amended, and to complete Form 1295
"Certificate of Interested Parties" as part of this Agreement if required by said
statute.
23. Verification Regarding Israel. In accordance with Chapter 2270, Texas
Government Code, the City may not enter into a contract with a company for
goods or services unless the contract contains a written verification from the
company that it: (1) does not boycott Israel; and (2) will not boycott Israel during
the term of the contract. The signatory executing this Agreement on behalf of the
Supplier verifies that the company does not boycott Israel and will not boycott
Israel during the term of this Agreement.
24. Governing Law. This Agreement is subject to all federal, State, and local laws, rules,
and regulations. The applicable law for any legal disputes arising out of this
Agreement is the law of the State of Texas, and such form and venue for such
disputes is the appropriate district, county, or justice court in and for Nueces
County, Texas.
25. Entire Agreement. This Agreement constitutes the entire agreement between the
parties concerning the subject matter of this Agreement and supersedes all prior
negotiations, arrangements, agreements and understandings, either oral or
written, between the parties.
(SIGNATURE PAGE FOLLOWS)
Supply Agreement Standard Form Page 6 of 7
Approved as to Legal Form October 1, 2018
SUPPLIER
Signature:
Printed Name: ERNESTO SANT'1LLAN,
•
Title: AREA SALES MANAGE
Date: JANUARY 15, 2019
CITY OF CORPUS CHRISTI
Kim aker
Assistant Director of Finance—Purchasing Division
Date: 2 . 20 . V1Z�Q�r[-��
---
ATTEST:
RES'ECCA HUERTA
CITY SECRETARY
Attached and Incorporated by Reference:
Attachment A: Scope of Work
Attachment 8: Bid/Pricing Schedule
Attachment C: insurance Requirements
Attachment D: Warranty Requirements (�
Incorporated by Reference Only: M \-I-0z i,UTHOKI to
Exhibit 1: RFB No. 2008 a
Exhibit 2: Supplier's Bid Response 0 COUNCIL 2 .�9.. J
` •V
SECRETARY
•Supply Agreement Standard Form Page 7 of 7
Approved as io Legal Form October i,2018
Attachment A -Scope of Work
1.1 General Requirements/Background Information
The Contractor shall provide emulsified polymerized asphalt (HFRS-2P) to be
used in the chip seal program throughout the City as outlined in this Scope
of Work.
1.2 Scope of Work
The emulsified polymerized asphalt shall be a homogeneous mix meeting
the TXDOT Specifications Item 300.2 of 2014 Standard Specifications for
Construction and Maintenance of Highway, Streets and Bridges.
1.3 Special Instructions
A. The Supplier shall provide a high float rapid set (HFRS-2P)
anionic emulsified asphalt with a polymer additive that meets the
City's expectations for performance. The blended asphalt material
hereafter referenced as an emulsified polymerized asphalt shall consist
of virgin asphalt, an emulsifier agent, and a polymer additive. Issues
of concern to the City regarding the emulsified polymerized asphalt
are stability (breaking time), aggregate chip retention, resistance to
premature aging (that is, long-term elasticity), and field performance.
B. In addition to meeting the method requirements, the City requires the
emulsified polymerized asphalt to perform favorably with respect to the
issues listed above. Evaluation of field performance will be based on
field observations by City personnel of chip seal applications with
specific observations relative to chip retention, chip "rolling", clogging
or stringing of distributor spray heads, uneven spray distribution,
"running" of asphalt along application surface, and visual observation
of changes in color and consistency relative to time elapsed after
application.
C. The polymer additive shall be styrene-butadiene-styrene (SBS), styrene-
butadiene rubber (SBR) or equivalent. The additive may be a
combination of one or more of these materials.
D. The emulsified polymerized asphalt shall meet the storage stability,
viscosity, and sieve tests requirements at any time within 14 days of
delivery. Samples shall be stored in clean, airtight, sealed containers at
a temperature of not less than 40 deg. F until tested.
1.4 Pickup/Delivery Instructions
A. Standard Service picked up at Supplier's location and loaded into
City Trucks.
B. Material delivered and loaded into City Trucks and/or Supplier's tanker
is to be delivered to the Street Department Service Center, 2525 Hygeia,
Corpus Christi,Texas.
C. Shipping temperatures shall be in accordance with the heating and
storage maximum temperature ranges shown in the Texas State
Department of Highways and Public Transportation, 2014 Standard
Specifications for Construction of Highways, Streets, and Bridges.
Supplier must be able to pump material into City distributor tanker.
Minimum delivery will be 3,000 gallons.
1.5 Contractor Quality Control and Superintendence
The Contractor shall establish and maintain a complete Quality Control
Program that is acceptable to the Contract Administrator to assure that
the requirements of the Contract are provided as specified. The
Contractor will also provide supervision of the work to insure it complies
with the contract requirements.
1.6 Samples
A. Suppliers are required to submit third party lab test reports which indicate
that the emulsion asphalt mix meets all requirements in accordance with
2014 TX DOT Standard Specification Item 300.2
B. The City may obtain samples of the emulsified polymerized asphalt at any
time during the Contract period. Sampling is to be performed by the
Director of Street Services in accordance with TX DOT test method Tex-
500-C. The Suppliers' representative will be given the opportunity to
witness sampling of the emulsified polymerized asphalt.
C. At the City's discretion, samples shall be obtained on every 50,000 gallons
of emulsified polymerized asphalt sold to the City or at least once every
two weeks whichever results in more samples. In lieu of the foregoing
sampling requirements, the City may elect to accept third party lab test
reports which indicate that the emulsion asphalt mix meets all the
requirements listed on the 2014 TX DOT Standard Material Specifications
Item 300. The third-party test reports must be for every new batch of
material formulated that was picked up or delivered to the City. The City
will test at its discretion or when the emulsified polymerized asphalt field
performance indicates the need. The sampling will be at the point of
manufacturer or at the point where the City takes possession of the
emulsified polymerized asphalt. The City reserves the right to determine
the place and time of sampling.
D. The City also reserves the right to sample and test at any time. All costs
associated with sampling and testing shall be paid by the City except the
Supplier will pay for all costs associated with the testing of samples which
fail to meet requirements. The costs for samples that fail to meet
requirements will be deducted from the vendor's payment from the City.
E. The City requires a copy of the material test report for every pickup or
delivery of material.
Attachment B - Bid/Pricing Schedule
os
CITY OF CORPUS CHRISTI
PURCHASING DIVISION
BID FORM
RFB No. 2008
184:2 Emulsified Polymerized Asphalt (HFRS-2P)
PAGE 1 OF 1
Date: DECEMBER 28. 2018
Authorized
Bidder: ERGON ASPHALT & EMULSIONS, INC. Signature:
ERNESTO SANTILLAN
AREA SALES MANAGER
1. Refer to "Instructions to Bidders" and Contract Terms and Conditions before
completing bid.
2. Quote your best price for each item.
3. In submitting this bid, Bidder certifies that:
a. the prices in this bid have been arrived at independently, without consultation,
communication, or agreement with any other Bidder or competitor, for the
purpose of restricting competition with regard to prices.
b. Bidder is an Equal Opportunity Employer, and the Disclosure of Interest information
on file with City's Purchasing office, pursuant to the Code of Ordinances, is current
and true.
c. Bidder is current with all taxes due and company is in good standing with all
applicable governmental agencies.
d. Bidder acknowledges receipt and review of all addenda for this RFB.
4. Bidders must not write over or revise the bid form. Do not write notes on the bottom of
this page. Bidder will be considered Non-Responsive if the bid form is modified.
Item Description UNIT 1 - Year Unit Price Total
Quantity Price
1. Emulsified Polymerized Gallons 250,000 $ 3.00 $ 750,000.00
Asphalt (HFRS-2P)
Total $750,000.00
Grand Total for 36 Months$2,250,000.00
Attachment C - Insurance Requirements
I. CONTRACTOR'S LIABILITY INSURANCE
A. Contractor must not commence work under this contract until all insurance
required has been obtained_and such insurance has been approved by the City.
Contractor must not allow any subcontractor, to commence work until all similar
insurance required of any subcontractor has been obtained.
B. Contractor must furnish to the City's Risk Manager and Contract Administrator
one (1) copy of Certificates of Insurance with applicable policy endorsements
showing the following minimum coverage by an insurance company(s)
acceptable to the City's Risk Manager. The City must be listed as an additional
insured on the General liability and Auto Liability policies by endorsement, and a
waiver of subrogation endorsement is required on GL, AL and WC if applicable.
Endorsements must be provided with Certificate of Insurance. Project name
and/or number must be listed in Description Box of Certificate of Insurance.
TYPE OF INSURANCE MINIMUM INSURANCE COVERAGE
30-day advance written notice of Bodily Injury and Property Damage
cancellation, non-renewal, material
change or termination required on all Per occurrence aggregate
certificates and policies.
COMMERCIAL GENERAL LIABILITY $1,000,000 Per Occurrence
including: $1,000,000 Aggregate
1. Commercial Broad Form
2. Premises- Operations
3. Products/Completed Operations
4. Contractual Liability
5. Independent Contractors
6. Personal Injury- Advertising Injury
AUTO LIABILITY (including) $1,000,000 Combined Single Limit
1. Owned
2. Hired and Non-Owned
3. Rented/Leased
WORKERS'S COMPENSATION Statutory and complies with Part II of
(All States Endorsement if Company is not this Exhibit.
domiciled in Texas)
Employers Liability $500,000/$500,000/$500,000
POLLUTION LIABILITY $1,000,000 Per Occurrence
C. In the event of accidents of any kind related to this contract, Contractor must
furnish the Risk Manager with copies of all reports of any accidents within 10 days
of the accident.
II. ADDITIONAL REQUIREMENTS
A. Applicable for paid employees, Contractor must obtain workers' compensation
coverage through a licensed insurance company.The coverage must be written
on a policy and endorsements approved by the Texas Department of Insurance.
The workers' compensation coverage provided must be in statutory amounts
according to the Texas Department of Insurance, Division of Workers'
Compensation. An All States Endorsement shall be required if Contractor is not
domiciled in the State of Texas.
B. Contractor shall obtain and maintain in full force and effect for the
duration of this Contract, and any extension hereof, at Contractor's sole
expense, insurance coverage written on an occurrence basis by
companies authorized and admitted to do business in the State of Texas
and with an A.M. Best's rating of no less than A- VII.
C. Contractor shall be required to submit renewal certificates of insurance
throughout the term of this contract and any extensions within 10 days of
the policy expiration dates. All notices under this Exhibit shall be given to
City at the following address:
City of Corpus Christi
Attn: Risk Manager
P.O. Box 9277
Corpus Christi, TX 78469-9277
D. Contractor agrees that, with respect to the above required insurance, all
insurance policies are to contain or be endorsed to contain the following
required provisions:
• List the City and its officers, officials, employees, and volunteers, as additional
insureds by endorsement with regard to operations, completed operations, and
activities of or on behalf of the named insured performed under contract with
the City, with the exception of the workers' compensation policy;
• Provide for an endorsement that the "other insurance" clause shall not apply to
the City of Corpus Christi where the City is an additional insured shown on the
policy;
• Workers' compensation and employers' liability policies will provide a waiver of
subrogation in favor of the City; and
• Provide thirty (30) calendar days advance written notice directly to City of any,
cancellation, non-renewal, material change or termination in coverage and not
less than ten (10) calendar days advance written notice for nonpayment of
premium.
E. Within five (5) calendar days of a cancellation, non-renewal, material change or
termination of coverage, Contractor shall provide a replacement Certificate of
Insurance and applicable endorsements to City. City shall have the option to
suspend Contractor's performance should there be a lapse in coverage at any
time during this contract. Failure to provide and to maintain the required
insurance shall constitute a material breach of this contract.
F. In addition to any other remedies the City may have upon Contractor's failure to
provide and maintain any insurance or policy endorsements to the extent and
within the time herein required, the City shall have the right to order Contractor
to stop work hereunder, and/or withhold any payment(s) which become due to
Contractor hereunder until Contractor demonstrates compliance with the
requirements hereof.
G. Nothing herein contained shall be construed as limiting in any way the extent to
which Contractor may be held responsible for payments of damages to persons
or property resulting from Contractor's or its subcontractor's performance of the
work covered under this contract.
H. It is agreed that Contractor's insurance shall be deemed primary and non-
contributory with respect to any insurance or self-insurance carried by the City of
Corpus Christi for liability arising out of operations under this contract.
I. It is understood and agreed that the insurance required is in addition to and
separate from any other obligation contained in this contract.
2018 Insurance Requirements
Purchasing
Supply and Delivery of Emulsified Polymerized Asphalt (HFRS-2P)
10/22/18 sw Risk Management
Valid Through 12/31/2018
Attachment D - Warranty Requirements
Section 8 Warranty Sub Section (b) is null and void for this Supply Agreement.