HomeMy WebLinkAboutC2021-276 - 10/12/2021 - ApprovedService Agreement Standard Form – Consent Decree Page 1 of 8
SERVICE AGREEMENT NO. 3707
Preventative Maintenance and Repairs for Breakpoint
Chlorination System
THIS Preventative Maintenance and Repairs for Breakpoint Chlorination System
Agreement ("Agreement") is entered into by and between the City of Corpus Christi, a
Texas home-rule municipal corporation (“City”) and Grace Water Services, LLC
(“Contractor"), effective upon execution by the City Manager or the City Manager’s
designee (“City Manager”).
WHEREAS, Contractor has bid to provide Preventative Maintenance and Repairs
for Breakpoint Chlorination System in response to Request for Bid/Proposal No. SS-3707
(“RFB/RFP”), which RFB/RFP includes the required scope of work and all specifications
and which RFB/RFP and the Contractor’s bid or proposal response, as applicable, 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 Contractor agree as follows:
1. Scope. Contractor will provide Preventative Maintenance and Repairs for
Breakpoint Chlorination System (“Services”) 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, and in
accordance with Exhibit 2.
2. Term.
(A) This Agreement is for two years. The parties may mutually extend the term
of this Agreement for up to one additional two-year periods (“Option Period(s)”),
provided, the parties do so in writing prior to the expiration of the original term or
the then-current Option Period.
(B) At the end of the Term of this Agreement or the final Option Period, the
Agreement may, at the request of the City prior to expiration of the Term or final
Option Period, continue on a month-to-month basis for up to six months with
compensation set based on the amount listed in Attachment B for the Term or the
final Option Period. The Contractor may opt out of this continuing term by
providing notice to the City at least 30 days prior to the expiration of the Term or
final Option Period. During the month-to-month term, either Party may terminate
the Agreement upon 30 days’ written notice to the other Party.
3.Compensation and Payment. This Agreement is for an amount not to exceed
$433,890.21, subject to approved extensions and changes. Payment will be made
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for Services provided 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. While the pricing may change for the option period based on
changing market conditions, the total compensation for the Option Period, if
exercised, may not exceed $450,000.00. 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.
Invoices must 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: Joanna Moreno
Department: Utilities Department
Phone; (361) 826-1649
Email: JoannaM@cctexas.com
5. Insurance; Bonds.
(A) Before performance can begin under this Agreement, the Contractor 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.
(B) In the event that a payment bond, a performance bond, or both, are
required of the Contractor to be provided to the City under this Agreement before
performance can commence, the terms, conditions, and amounts required in the
bonds and appropriate surety information are as included in the RFB/RFP or as
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may be added to Attachment C, and such content is incorporated here in this
Agreement by reference as if each bond’s terms, conditions, and amounts were
fully set out here in its entirety.
6. Purchase Release Order. For multiple-release purchases of Services to be
provided by the Contractor over a period of time, the City will exercise its right to
specify time, place and quantity of Services to be delivered in the following
manner: any City department or division may send to Contractor a purchase
release order signed by an authorized agent of the department or division. The
purchase release order must refer to this Agreement, and Services will not be
rendered until the Contractor receives the signed purchase release order.
7. Inspection and Acceptance. City may inspect all Services and products supplied
before acceptance. Any Services or products that are provided but not
accepted by the City must be corrected or re-worked immediately at no charge
to the City. If immediate correction or re-working at no charge cannot be made
by the Contractor, a replacement service may be procured by the City on the
open market and any costs incurred, including additional costs over the item’s
bid/proposal price, must be paid by the Contractor within 30 days of receipt of
City’s invoice.
8. Warranty.
(A) The Contractor 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 Contractor 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 Contractor 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.
(C) Contractor warrants that all Services will be performed in accordance
with the standard of care used by similarly situated contractors performing similar
services.
9. Quality/Quantity Adjustments. Any Service 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.
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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. Contractor will perform the work required by this
Agreement as an independent contractor and will furnish such Services in its own
manner and method, and under no circumstances or conditions will any agent,
servant or employee of the Contractor be considered an employee of the City.
12. Subcontractors. In performing the Services, the Contractor will not enter into
subcontracts or utilize the services of subcontractors.
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 Contractor covenants to pay payroll taxes, Medicare taxes, FICA
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: Joanna Moreno
Title: Contracts/Funds Administrator
Address: 2726 Holly Road, Corpus Christi, Texas 78415
Phone: (361) 826-1649
Fax: (361) 826-4495
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IF TO CONTRACTOR:
Grace Water Services, LLC
Attn: Mario Zanelli
Title: Sales Representative
Address: 19406 Little Pine Lane, Katy, Texas 77449
Phone: (281) 851-5544
Fax: N/A
17. CONTRACTOR 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
AGREEMENT BY THE CONTRACTOR OR RESULTS FROM THE NEGLIGENT
ACT, OMISSION, MISCONDUCT, OR FAULT OF THE CONTRACTOR OR ITS
EMPLOYEES OR AGENTS. CONTRACTOR 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 CONTRACTOR UNDER THIS SECTION SHALL SURVIVE
THE EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT.
18. Termination.
(A) The City may terminate this Agreement for Contractor’s failure to comply with
any of the terms of this Agreement. The City must give the Contractor written
notice of the breach and set out a reasonable opportunity to cure. If the
Contractor has not cured within the cure period, the City may terminate this
Agreement immediately thereafter.
(B) Alternatively, the City may terminate this Agreement for convenience upon
30 days advance written notice to the Contractor. The City may also terminate
this Agreement upon 24 hours written notice to the Contractor for failure to pay or
provide proof of payment of taxes as set out in this Agreement.
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19. Owner’s Manual and Preventative Maintenance. Contractor agrees to provide a
copy of the owner’s manual and/or preventative maintenance guidelines or
instructions if available for any equipment purchased by the City pursuant to this
Agreement. Contractor must provide such documentation upon delivery of such
equipment and prior to receipt of the final payment by the City.
20. Limitation of Liability. The City’s maximum liability under this Agreement is limited
to the total amount of compensation listed in Section 3 of this Agreement. In no
event shall the City be liable for incidental, consequential or special damages.
21. Assignment. No assignment of this Agreement by the Contractor, 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
Contractor 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.
22. 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.
23. 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 Contractor’s bid response (Exhibit 2).
24. Certificate of Interested Parties. Contractor 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.
25. Governing Law. Contractor agrees to comply with all federal, Texas, and City laws
in the performance of this Agreement. 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.
26. Public Information Act Requirements. This paragraph applies only to agreements
that have a stated expenditure of at least $1,000,000 or that result in the
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expenditure of at least $1,000,000 by the City. The requirements of Subchapter J,
Chapter 552, Government Code, may apply to this contract and the Contractor
agrees that the contract can be terminated if the Contractor knowingly or
intentionally fails to comply with a requirement of that subchapter.
27.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.
28. Consent Decree Requirements. This Agreement is subject to certain requirements
provided for by the Consent Decree entered into as part of Civil Action No. 2:20-
cv-00235, United States of America and State of Texas v. City of Corpus Christi in
the United States District Court for the Southern District of Texas, Corpus Christi
Division (the “Consent Decree”). A set of Wastewater Consent Decree Special
Conditions has been attached as Attachment E, the content of which is
incorporated by reference into this Agreement as if fully set out here in its entirety.
The Contractor must comply with Attachment E while performing the Services.
[Signature Page Follows]
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CONTRACTOR
Signature:
Printed Name:
Title:
Date:
CITY OF CORPUS CHRISTI
________________________________________________
Josh Chronley
Assistant Director, Contracts and Procurement
Date: _________________________
APPROVED AS TO LEGAL FORM:
______________________________________________________
Assistant City Attorney Date
Attached and Incorporated by Reference:
Attachment A: Scope of Work
Attachment B: Bid/Pricing Schedule
Attachment C: Insurance and Bond Requirements
Attachment D: Warranty Requirements
Attachment E: Wastewater Consent Decree Special Conditions
Incorporated by Reference Only:
Exhibit 1: RFB/RFP No. SS-3707
Exhibit 2: Contractor’s Bid/Proposal Response
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Owner
10/20/2021
Mario Zanelli
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10/21/2021
Res. 032570
10-12-2021
___________________Authorized By
Council ________________________
10/22/2021
ATTEST:
_____________________________
Rebecca Huerta
City Secretary
ATTACHMENT A: SCOPE OF WORK
1.1 General Requirements
A. The Contractor shall provide monthly preventative maintenance service
and repairs for the breakpoint chlorination equipment feed system at the
Oso Wastewater Treatment Plant.
B. In addition to monthly PM service, the Contractor shall provide service and
repairs on an as needed “call out” basis.
C. The Contractor shall provide labor, materials, parts, and transportation
necessary to perform the services.
1.2 Preventative Maintenance/Repairs
A. The Contractor shall perform preventative maintenance and repairs as per
manufacturer recommendation.
B. Preventative maintenance shall include:
1.Addressing issues reported by the operators
2.Inspecting analyzers
3.Cleaning/replacing/calibrating probes
4.Inspecting chemical pumps
5.Lubricating hoses
6.Cleaning historian software program
7.Performing instrument calibrations
C. The Contractor shall repair/replace parts during scheduled preventative
maintenance. Replacement of parts shall be made to extend the useful
life of the equipment feed system.
D. The Contractor shall use Original Equipment Manufacturer (OEM) parts and
lubricants.
E. All preventative maintenance work shall be scheduled between 7:00 AM
and 5:00 PM, Monday through Friday, excluding City holidays.
1.3 Service Personnel
A. The Contractor’s service technician must be trained, experienced, and
qualified to perform the services outlined in this contract.
B. The Contractor’s technician shall check in with the onsite personnel prior to
commencing work and check out after completing the work.
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C. Upon completion of work, the technician shall clean the work area and
secure all equipment in a safe condition.
1.4 Warranty
The Contractor shall provide a one-year warranty on parts and service.
1.5 Invoicing
A. The Contractor shall submit an itemized invoice for payment, which shall
include the following:
1.Service Agreement No. and PO No,
2.Name and address of service location
3.Description of service work
4.Itemized list of parts repaired/replaced
B. The Contractor shall mail the original invoice to the address below and
email a copy to Utilitiesdept@cctexas.com.
City of Corpus Christi
ATTN: AP/Utilities Dept
PO Box 9277
Corpus Christi, TX 78469-9277
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ATTACHMENT B: PRICE SHEET
Quotation #: Q-16465-1
YEAR ONE
ITEM DESCRIPTION QTY UNIT UNIT PRICE PRICE TOTAL
1 Monthly PM Service Visits 12 EA $3,850.00 $46,200.00
2 Emergency Service “Call-out” 4 EA $3,850.00 $15,400.00
3 Total Chlorine Probes 8 EA $3,243.75 $25,950.00
4 Free Chlorine Probes 6 EA $3,243.75 $19,462.50
5 PH Probes 8 EA $2,476.47 $19,811.76
6 ORP Probes 8 EA $2,476.47 $19,811.76
7 DO Probes 1 EA $5,045.00 $5,045.00
8 HA8 Chemtrac Controller 1 EA $11,400.00 $11,400.00
9 HA4 Controller Replacement
for Junction Box 1 EA $8,972.00 $8,972.00
10 Probe Cables, Membrane
Caps 1 EA $9,600.00 $9,600.00
11 S26 Keco Peristaltic
Replacement Hoses 9 EA $1,200.00 $10,800.00
12 M40 Keco Peristaltic
Replacement Hoses 2 EA $2,150.00 $4,300.00
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13 Admin PC Upgrade, includes
GE License 1 EA $18,650.00 $18,650.00
14 GE Fanuc Replacement Part 1 EA $13,500.00 $13,500.00
15 Sodium Bisulfite Chemical
Feed Pump 1 EA $9,250.00 $9,250.00
16 S26 Peristaltic Chemical Feed
Pump 2 EA $9,325.00 $18,650.00
SUBTOTAL – YEAR ONE $256,803.02
YEAR TWO
ITEM DESCRIPTION QTY UNIT UNIT PRICE PRICE TOTAL
1 Monthly PM Service Visits 12 EA $3,850.00 $46,200.00
2 Emergency Service “Call-out” 4 EA $3,850.00 $15,400.00
3 Total Chlorine Probes 8 EA $3,503.25 $28,026.00
4 Free Chlorine Probes 7 EA $3,503.25 $24,522.75
5 PH Probes 8 EA $2,674.59 $21,396.72
6 ORP Probes 8 EA $2,674.59 $21,396.72
7 DO Probes 1 EA $5,045.00 $5,045.00
8 S26 Keco Peristaltic
Replacement Hoses 9 EA $1,200.00 $10,800.00
9 M40 Keco Peristaltic
Replacement Hoses 2 EA $2,150.00 $4,300.00
SUBTOTAL – YEAR TWO $177,087.19
2-YEAR TOTAL $433,890.21
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Attachment C - Insurance Requirements
I. CONTRACTOR’S LIABILITY INSURANCE
A. Contractor must not commence work under this agreement until all insurance required
has been obtained and such insurance has been approved by the City. Contractor
must not allow any subcontractor Agency to commence work until all similar insurance
required of any subcontractor Agency has been obtained.
B. Contractor must furnish to the City’s Risk Manager and Contract Administer one (1) copy
of Certificates of Insurance (COI) 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 is required on all
applicable policies. Endorsements must be provided with COI. Project name and or
number must be listed in Description Box of COI.
TYPE OF INSURANCE MINIMUM INSURANCE COVERAGE
Commercial General Liability Including:
1.Commercial Broad Form
2.Premises – Operations
3.Products/ Completed Operations
4.Contractual Liability
5.Independent Contractors
6.Personal Injury- Advertising Injury
$1,000,000 Per Occurrence
AUTO LIABILITY (including)
1.Owned
2.Hired and Non-Owned
3.Rented/Leased
$500,000 Combined Single Limit
WORKERS’ COMPENSATION
EMPLOYER’S LIABILITY
Statutory
$500,000 /$500,000 /$500,000
POLLUTION LIABILITY
(Including Cleanup and Remediation)
$1,000,000 Per Occurrence
C. In the event of accidents of any kind related to this agreement, Contractor must furnish
the Risk Manager with copies of all reports of any accidents within 10 days of the
accident.
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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 an amount sufficient to assure
that all workers’ compensation obligations incurred by the Contractor will be promptly
met.
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 a copy of the replacement certificate of
insurance to City at the address provided below within 10 days of the requested
change. Contractor shall pay any costs incurred resulting from said changes. All notices
under this Article 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, volunteers, and elected representatives
as additional insured by endorsement, as respects operations, completed operation
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 30 calendar days advance written notice directly to City of any, cancellation,
non-renewal, material change or termination in coverage and not less than 10 calendar
days advance written notice for nonpayment of premium.
E. Within 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.
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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 remove the exhibit
hereunder, and/or withhold any payment(s) if any, 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 agreement.
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 agreement.
I. It is understood and agreed that the insurance required is in addition to and separate
from any other obligation contained in this agreement.
2021 Insurance Requirements
Ins. Req. Exhibit 4-C
Contracts for General Services – Services Performed Onsite - Pollution
03/25/2021 Risk Management – Legal Dept.
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Attachment C – Bond Requirements
“No bonds required for this Agreement.”
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Attachment D - Warranty Requirements
All parts are guaranteed for one year (manufacturer defect) all service to
replace damage units gets done on the monthly visit or gets quoted for work
outside the scope, all service work performed by GWS is guaranteed for one
year.
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ATTACHMENT E
WASTEWATER CONSENT DECREE
Special Conditions
Special Project procedures are required from the CONTRACTOR as specified herein. The
CONTRACTOR shall implement and maintain these procedures at the appropriate time,
prior to and during performance of the work.
The following special conditions and requirements shall apply to the Project:
I. Consent Decree Notice Provision – The City of Corpus Christi (“City”), the United
States of America and the State of Texas have entered into a Consent Decree in Civil
Action No. 2:20-cv-00235, United States of America and State of Texas v. City of Corpus
Christi in the United States District Court for the Southern District of Texas, Corpus
Christi Division (the “Consent Decree”). A copy of the Consent Decree is available at
https://www-cdn.cctexas.com/sites/default/files/CC-Consent-Decree.pdf
By signature of the Contract, CONTRACTOR acknowledges receipt of the Consent Decree.
II. Performance of work. CONTRACTOR agrees that any work under this Contract is
conditioned upon CONTRACTOR’s performance of the Work in conformity with the
terms of the Consent Decree. All Work shall be performed in accordance with the Design
Criteria for Wastewater Systems under Title 30 Chapter 217 of the Texas Administrative
Code, 30 Tex. Admin. Code Ch. 217, and using sound engineering practices to ensure
that construction, management, operation and maintenance of the Sewer Collection
System complies with the Clean Water Act. Work performed pursuant to this contract
is work that the City is required to perform pursuant to the terms of the Consent Decree.
In the event of any conflict between the terms and provisions of this Consent Decree
and any other terms and provisions of this Contract or the Contract Documents, the terms
and provisions of this Consent Decree shall prevail.
III.Retention of documents – CONTRACTOR shall retain and preserve all non-
identical copies of all documents, reports, research, analytical or other data, records or other
information of any kind or character (including documents, records, or other information
in electronic form) in its or its sub-contractors’ or agents’ possession or control, or that
come into its or its sub-contractors’ or agents’ possession or control, and that relate in
any manner to this contract, or the performance of any work described in this contract
(the “Information”). This retention requirement shall apply regardless of any contrary
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city, corporate or institutional policy or procedure. CONTRACTOR, CONTRACTOR’s
sub-contractors and agents shall retain and shall not destroy any of the Information until
five years after the termination of the Consent Decree and with prior written authorization
from the City Attorney. CONTRACTOR shall provide the City with copies of any
documents, reports, analytical data, or other information required to be maintained at any
time upon request from the City.
IV. Liability for stipulated penalties – Article IX of the Consent Decree provides
that the United States of America, the United States Environmental Protection Agency
and the State of Texas may assess stipulated penalties including interest against the City
upon the occurrence of certain events. To the extent that CONTRACTOR or
CONTRACTOR’s agents or sub-contractors cause or contribute to, in whole or in part, the
assessment of any stipulated penalty against the City, CONTRACTOR agrees that it shall
pay to City the full amount of any stipulated penalty assessed against and paid by City that
is caused or contributed to in whole or in part by any action, failure to act, or failure to act
within the time required by any provision of this contract. CONTRACTOR shall also pay
to City all costs, attorney fees, expert witness fees and all other fees and expenses
incurred by City in connection with the assessment or payment of any such stipulated
penalties, or in contesting the assessment or payment of any such stipulated penalties.
In addition to any and all other remedies to which City may be entitled at law or in
equity, CONTRACTOR expressly authorizes City to withhold all amounts assessed
and paid as stipulated penalties, and all associated costs, fees, or expenses from any
amount unpaid to CONTRACTOR under the terms of this contract, or from any retainage
provided in the contract.
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