HomeMy WebLinkAboutPR 22769: CONTRACT FOR GENERATOR MAINTENANCE AT THE PRESS BUILDING WITH PANAMA EQUIPMENT O t *AR IxUp , , R
INTEROFFICE MEMORANDUAM
Date: September 27,2022
To: Port Arthur City Council
Through: Ron Burton, City Manager
From: Krystle Muller, Interim CEO
RE: PR 22769-Approval of a contract for generator maintenance at The Press Building
with Panama Equipment.
Introduction:
There is a need for generator maintenance at 549 4th Street(The Press Building).
Background:
The Port Arthur Economic Development Corporation desires to contract with Panama
Equipment for generator maintenance at The Press Building. The technician that worked
on the refurbishment and installation of said generator is an employee of Panama
Equipment and is therefore the most knowledgeable about the generator. Bids were
requested from the following companies:Panama Equipment,Cat 5,A&A Electric,Bennet
Electric and Clifford Power. Panama Equipment was the only company to assess the
equipment and provide a bid.
The bids are as follows:
VENDOR ANNUAL MO QTR TOTAL
Panama Equipment $5,476.92 $261.54 $653.85 $9,530.77
Budget Impact:
The budget impact for this item is $9,530.77 per year to include the annual,quarterly,and monthly checks
of the generator. Cost of fuel is additional and will be provided as listed on the quote. The quote is
attached hereto. Funds are available in EDC Account No. 120-80-625-5318-00-00-000.
Recommendation:
It is recommended that the PAEDC Board of Directors approve a contract between the PAEDC and
Panama Equipment for generator maintenance at The Press Building.
P.R. No. 22769
09/27/2022 JB
RESOLUTION NO.
A RESOLUTION AUTHORIZING THE EXPENDITURE OF FUNDS IN AN
AMOUNT NOT TO EXCEED$9,530.77 TO PROVIDE MAINTENANCE OF
THE GENERATOR SERVICING 549 4TH STREET (THE PRESS
BUILDING);FUNDING AVAILABLE IN EDC ACCOUNT NO. 120-80-625-
5318-00-00-000.
WHEREAS,the City Council deems it is the public interest to authorize the City of Port
Arthur Section 4A Economic Development Corporation (the "PAEDC") to retrofit the property
located at 549 4th Street in downtown Port Arthur for co-working, office rental space and
entrepreneurship endeavors; and
WHEREAS, Panama Equipment responded to a request for bids for maintenance of the
generator at 549 4th Street(The Press Building); and
WHEREAS,the service contract and related expenditures were approved by the PAEDC
Board; and
WHEREAS, pursuant to Tex. Loc. Gov't Code Ann. § 501.073 the City Council will
approve all expenditures of the PAEDC; and
WHEREAS,the proposed expenditures are available and properly budgeted.
NOW,THEREFORE,BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF PORT ARTHUR:
Section 1. That the facts and opinions in the preamble are true and correct.
Section 2. That the City Council approves the expenditures of the Port Arthur Economic
Development Corporation to be paid to Panama Equipment for maintenance of the generator at
549 4th Street (The Press Building) in an amount not to exceed nine thousand five hundred thirty
dollars and seventy-seven cents($9,530.77).
Section 3. That a copy of the caption of this Resolution be spread upon the Minutes of the
City Council.
READ,ADOPTED AND APPROVED on this day of A.D., 2022,
at a Meeting of the City Council of the City of Port Arthur. Texas. by the following vote:
AYES:
Mayor
Councilmembers
NOES:
Thurman Bartie, Mayor
ATTEST:
Sherri Bellard, City Secretary
APPROVED:
r>Vti 4\4-6,
KrystlMuller,Interim CEO
APPROVED AS TO FORM:
1
Charles Zech, PAEDC Attorney
APPROVED AS TO FORM:
Page 2
1/4/ (
Valecia R. Tizeno, ttorne
y
APPROVED AS TO AVAILABILITY OF FUNDS:
Kandy Daniel, Interim Finance Director
Page 3
Exhibit "A"
SERVICES AGREEMENT
STATE OF TEXAS §
COUNTY OF JEFFERSON §
This Agreement is entered into by and between the Port Arthur Economic Development
Corporation, a Texas Type A Economic Development Corporation ("EDC"), acting by and
through its EDC Executive Director,and Panama Equipment ("Service Provider"),both of which
may be referred to herein singularly as"Party"or collectively as the "Parties."
The Parties hereto severally and collectively agree, and by the execution hereof are bound,to the
mutual obligations herein contained and to the performance and accomplishment of the tasks
hereinafter described.
I. TERM
This Agreement shall become effective upon the later of either execution by the EDC or the
approval by the City of Port Arthur of all expenditures contemplated under this Agreement (the
"Effective Date"). This Agreement shall remain in effect for a period of one year unless terminated
earlier as provided for in this Agreement.
II. SCOPE OF SERVICES
2.1 Service Provider agrees to provide the services described in this Article II entitled Scope of
Services in exchange for the compensation described in Article III. Compensation. Scope of
Services are detailed in Exhibit "A"which are incorporated by reference as if written and copied
herein.
2.2 All services performed by Service Provider hereunder shall be performed to the satisfaction
of the EDC Executive Director. The determination made by EDC Executive Director shall be
final, binding, and conclusive on all Parties hereto. EDC shall be under no obligation to pay for
any services performed by Service Provider, which is not satisfactory to EDC Executive
Director. EDC shall have the right to terminate this Agreement, in accordance with Article VI.
Termination, in whole or in part, should Service Provider's services not be satisfactory to
EDC Executive Director;however,EDC shall have no obligation to terminate and may withhold
payment for any unsatisfactory services,as stated herein,even should EDC elect not to terminate.
III. COMPENSATION TO SERVICE PROVIDER
3.1 In consideration of Service Provider's performance in a satisfactory and efficient manner, as
determined solely by EDC Executive Director, of all services and activities set forth in this
Agreement, EDC agrees to pay Service Provider the amounts as provided for in Exhibit "B"
upon completion of said services to be billed monthly to EDC.
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3.2 No additional fees or expenses of Service Provider shall be charged by Service Provider nor
be payable by EDC. The parties hereby agree that all compensable expenses of Service Provider
have been provided for in the total payment to Service Provider as specified in section 3.1 above.
Total payments to Service Provider cannot exceed that amount set forth in section 3.1 above,
without prior approval and agreement of all parties, evidenced in writing and approved by the
EDC.
IV. OWNERSHIP OF DOCUMENTS
4.1 All writings, documents or information in whatsoever form and character produced by
Service Provider pursuant to the provisions of this Agreement is the exclusive property of EDC;
and no such writing,document or information shall be the subject of any copyright or proprietary
claim by Service Provider.
4.2 Service Provider understands and acknowledges that as the exclusive owner of all such
writings,documents and information,EDC has the right to use all such writings,documents, and
information as EDC desires, without restriction. Any use of such writings, documents, and
information on extensions of this project or on any other project without specific adaptation by
Service Provider shall be at the EDC's sole risk and without liability to the Service Provider.
V. RECORDS RETENTION
5.1 Service Provider and its subcontractors, if any, shall properly, accurately and completely
maintain all documents, papers, and records, and other evidence pertaining to the services
renderedhereunder(hereafter referred to as"documents"),and shall make such materials available
to the EDC at their respective offices, at all reasonable times and as often as EDC may deem
necessary.during the Agreement period, including any extension or renewal hereof, and the
record retention period established herein, for purposes of audit, inspection, examination, and
making excerpts or copies ofsame by EDC and any of its authorized representatives.
5.2 Service Provider shall retain all documents produced because of services provided hereunder
for a period of four (4) years (hereafter referred to as "retention period") from the date of
termination of the Agreement. If, at the end of the retention period, there is litigation or other
questions arising from, involving, or concerning this documentation or the services provided
hereunder, Service Provider shall retain the records until the resolution of such litigation or other
such questions. Service Provider acknowledges and agrees that EDC shall always have access
to all such documents,as deemed necessary by EDC,during said retention period.EDC may,at its
election, require Service Provider to return said documents to EDC prior to or at the conclusion
of said retention.
5.3 Service Provider shall notify EDC, immediately, in the event Service Provider receives any
requests for information from a third party, which pertain to the documentation and records
referenced herein. Service Provider understands and agrees that EDC will process and handle all
such requests.
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VI. TERMINATION
6.1 For purposes of this Agreement, "termination" of this Agreement shall mean termination by
expiration of the Agreement term as stated in Article II. Term, or earlier terminationpursuant to
any of the provisions hereof
6.2 Termination Without Cause. This Agreement may be terminated by either Party upon 15
calendar days' written notice, which notice shall be provided in accordance with Article VI.
Notice.
6.3 Termination For Cause. Upon written notice, which notice shall be provided in accordance
with Article VII.Notice,EDC may terminate this Agreement as of the date provided in the notice,
in whole or in part,upon the occurrence of one(1)or more of the following events,eachof which
shall constitute an Event for Cause under this Agreement: The sale, transfer, pledge,
conveyance or assignment of this Agreement without prior approval, as provided in for in this
Agreement.
6.4 Defaults With Opportunity for Cure. Should Service Provider default in the performance of
this Agreement in a manner stated in this section 6.4 below, same shall be considered an event of
default. EDC shall deliver written notice of said default specifying such matter(s) in default.
Service Provider shall have fifteen (15) calendar days after receipt of the written notice, in
accordance with Article VII. Notice, to cure such default. If Service Provider fails to cure the
default within such fifteen-day cure period, EDC shall have the right, without further notice, to
terminate this Agreementin whole or in part as EDC deems appropriate, and to contract with
another Service Provider to complete the work required in this Agreement. EDC shall also have
the right to offset the cost of said new Agreement with a new Service Provider against Service
Provider's future or unpaid invoice(s), subject to the duty on the part of EDC to mitigate its
losses to the extent required by law.
6.4.1 Bankruptcy or selling substantially all of company's assets
6.4.2 Failing to perform or failing to comply with any covenant
herein required
6.4.3 Performing unsatisfactorily
6.5 Termination By Law. If any state or federal law or regulation is enacted or promulgated
which prohibits the performance of any of the duties herein,or,if any law is interpretedto prohibit
such performance, this Agreement shall automatically terminate as of the effective date of such
prohibition.
6.6 Regardless of how this Agreement is terminated, Service Provider shall affect an orderly
transfer to EDC or to such person(s) or firm(s) as the EDC may designate, at no additional cost
to EDC,all completed or partially completed documents,papers,records,charts,reports,and any
othermaterials or information produced as a result of or pertaining to the services rendered by
Service Provider,or provided to Service Provider,hereunder,regardless of storage medium,if so
requested by EDC,or shallotherwise be retained by Service Provider in accordance with Article
VI. Records Retention. Any record transfer shall be completed within thirty(30)calendar days
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of a written request by EDC and shall becompleted at Service Provider's sole cost and expense.
Payment of compensation due or to become due to Service Provider is conditioned upon delivery
of all such documents, if requested.
6.7 Within forty-five (45) calendar days of the effective date of completion, or termination or
expiration of this Agreement, Service Provider shall submit to EDC its claims, in detail, forthe
monies owed by EDC for services performed under this Agreement through the effective date of
termination. Failure by Service Provider to submit its claims within said forty-five(45)calendar
days shallnegate any liability on the part of EDC and constitute a Waiver by Service Provider of
any and all right orclaims to collect monies that Service Provider may rightfully be otherwise
entitled to for services performed pursuant to this Agreement.
6.8 Upon the effective date of expiration or termination of this Agreement, Service Provider shall
cease all operations of work being performed by Service Provider or any of its subcontractors
pursuant to this Agreement.
6.9 Termination not sole remedy. In no event shall EDC's action of terminating this Agreement,
whether for cause or otherwise, be deemed an election of EDC's remedies, nor shall such
termination limit,in any way,at law or at equity,EDC's right to seek damages from or otherwise
pursue Service Provider for any default hereunder or other action.
VII. NOTICE
Except where the terms of this Agreement expressly provide otherwise, any election, noticeor
communication required or permitted to be given under this Agreement shall be in writing and
deemed to have been duly given if and when delivered personally (with receipt acknowledged),
or three(3)days after depositing same in the U.S.mail,first class,with proper postage prepaid,or
uponreceipt if sending the same by certified mail,return receipt requested, or upon receipt when
sent bya commercial courier service (such as Federal Express or DHL Worldwide Express) for
expedited delivery to be confirmed in writing by such courier,at the addresses set forth below or
to such otheraddress as either Party may from time to time designate in writing.
If intended for EDC, to:
Port Arthur Economic Development Corporation
If intended for Service Provider, to:
Panama Equipment, Attn: Rene Trevino
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VIII. INDEMNIFICATION
SERVICE PROVIDER agrees to INDEMNIFY and HOLD HARMLESS,the EDC and the
elected officials, employees, officers, directors,volunteers and representatives of the EDC,
individually and collectively, from and against any and all costs,claims, liens, damages,
losses, expenses, fees, fines, penalties, proceedings, actions, demands, causes of action, or
liability for damages caused by or resulting from an act of negligence, intentional tort,
intellectual property infringement,or failure to pay a subcontractor or supplier committed
by the SERVICE PROVIDER or the SERVICE PROVIDER's agent, SERVICE
PROVIDER under contract, or another entity over which the SERVICE PROVIDER
exercises control. Such acts may include personal or bodily injury, death and property
damage, made upon the EDC directly or indirectly arising out of,resulting from or related
to SERVICE PROVIDER'S activities under this Agreement, including any negligent or
intentional acts or omissions of SERVICE PROVIDER, any agent, officer, director,
representative, employee, Service Provider or subcontractor of SERVICE PROVIDER,
and their respective officers, agents employees, directors and representatives while in the
exercise of the rights or performance of the duties under thisAgreement. The indemnity
provided for in this paragraph shall not apply to any liability resulting from the negligence
of EDC, its elected officials, employees, officers, directors, volunteers and representatives,
in instances where such negligence causes personal injury, death, or property damage. In
no event shall the indemnification obligation extend beyond the date with when the
institution of legal or equitable proceedings for the Service Provider negligence would be
barred by any applicable statute of repose or statute of limitations.
The provisions of this INDEMNITY are solely for the benefit of the Parties hereto andnot
intended to create or grant any rights, contractual or otherwise, to any other person or
entity. SERVICE PROVIDER shall advise the EDC in writing within 24 hours of any claim
or demand against the EDC or SERVICE PROVIDER known to SERVICE PROVIDER
related to or arising out of SERVICE PROVIDER's activities under this AGREEMENT.
Duty to Defend— Service Provider agrees to hold a DUTY TO DEFEND the EDC and the
elected officials, employees, officers, directors, volunteers and representatives of the EDC,
individually and collectively,from and against any and all claims,liens,proceedings,actions
or causes of action, other than claims based wholly or partly on thenegligence of, fault of,
or breach of contract by the EDC, the EDC'S agent, the EDC'S employee or other entity,
excluding the SERVICE PROVIDER or the SERVICE PROVIDER'S agent, employee or
sub-Service Provider, over which the EDC exercises control. SERVICE PROVIDER is
required under this provision and fully satisfies this provision by naming the EDC and
thoserepresentatives listed above as additional insured under the SERVICE PROVIDER'S
general liability insurance policy and providing any defense provided by the policy upon
demand by EDC.
Employee Litigation — In any and all claims against any Party indemnified hereunder by any
employee of Service Provider, any subcontractor, anyone directly or indirectly employed byany
of them or anyone for whose acts any of them may be liable, the indemnification obligation
herein provided shall not be limited in any way by any limitation on the amount or type of
damages,compensation or benefits payable by or for Service Provider or any subcontractor under
worker's compensation or other employee benefit acts.
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Force Majeure - EDC agrees that the Service Provider is not responsible for damages arising
from any circumstances such as strikes or other labor disputes; severe weather disruptions,
natural disasters,fire or other acts of God;riots,war or other emergencies;or failure of any third-
party governmental agency to act in timely manner not caused or contributed to by Service
Provider.
IX. ASSIGNMENT AND SUBCONTRACTING
9.1 Service Provider shall supply qualified personnel as may be necessary to complete the work
to be performed under this Agreement. Persons retained to perform work pursuant to this
Agreementshall be the employees or subcontractors of Service Provider. Service Provider, its
employees or its subcontractors shall perform all necessary work.
9.2 It is EDC's understanding, and this Agreement is made in reliance thereon, that Service
Provider [intends] [does not intend] to use subcontractors in the performance of this
Agreement. Contractors: . Any deviation from this subcontractor list, whether
in the form of deletions, additions or substitutions shall be approved by EDC prior to the
provision of any services by said subcontractor.
9.3 Any work or services approved for subcontracting hereunder shall be subcontracted only by
written contract and, unless specific waiver is granted in writing by the EDC, shall be subjectby
its terms to each provision of this Agreement.Compliance by subcontractors with thisAgreement
shall be the responsibility of Service Provider. EDC shall in no event be obligated to any third
party, including any subcontractor of Service Provider, for performance of services or payment
of fees. Any references in this Agreement to an assignee, transferee, or subcontractor, indicate
only such anentity as has been approved by the EDC.
9.4 Except as otherwise stated herein, Service Provider may not sell, assign, pledge, transfer or
convey any interest in this Agreement,nor delegate the performance of any duties hereunder,by
transfer, by subcontracting or any other means, without the consent of the EDC Board, as
evidenced by passage of an resolution.As a condition of such consent,if such consent is granted,
Service Provider shall remain liable for completion of the services outlined in this Agreement in
the event of defaultby the successor Service Provider, assignee,transferee or subcontractor.
9.5 Any attempt to transfer, pledge or otherwise assign this Agreement without said written
approval, shall be void ab initio and shall confer no rights upon any third person. Should Service
Providerassign,transfer, convey, delegate, or otherwise dispose of any part of all or any part of
its right,titleor interest in this Agreement,EDC may,at its option,cancel this Agreement and all
rights, titles andinterest of Service Provider shall thereupon cease and terminate, in accordance
with Article VII. Termination, notwithstanding any other remedy available to EDC under this
Agreement. Theviolation of this provision by Service Provider shall in no event release Service
Provider from any obligation under the terms of this Agreement, nor shall it relieve or release
Service Provider from the payment of any damages to EDC, which EDC sustains as a result of
such violation.
X. INDEPENDENT CONTRACTOR
Service Provider covenants and agrees that he or she is an independent contractor and not an
officer,agent,servant or employee of EDC;that Service Provider shall have exclusive control of
and exclusive right to control the details of the work performed hereunder and all persons
performing same, and shall be responsible for the acts and omissions of its officers, agents,
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employees, contractors, subcontractorsand Service Providers; that the doctrine of respondent
superior shall not apply as between EDC and Service Provider, its officers, agents, employees,
contractors, subcontractors and Service Providers, and nothing herein shall be construed as
creating the relationship of employer-employee, principal-agent, partners or joint ventures
between EDC and Service Provider. The Parties hereto understand and agree thatthe EDC shall
not be liable for any claims which may be asserted by any third party occurring in connection
with the services to be performed by the Service Provider under this Agreement and that the
Service Provider has no authority to bind the EDC.
XI. AMENDMENTS
Except where the terms of this Agreement expressly provide otherwise, any alterations,
additions, or deletions to the terms hereof, shall be affected by amendment, in writing, executed
by both EDC and Service Provider, and, if applicable, subject to formal approval by the EDC
Board.
XII. SEVERABILITY
If any clause or provision of this Agreement is held invalid, illegal or unenforceable under
present or future federal, state or local laws, including but not limited to the EDC Charter, EDC
Code, or resolutions of the Port Arthur Economic Development Corporation, Texas,then and in
that event it is the intention of the Partieshereto that such invalidity,illegality or unenforceability
shall not affect any other clause or provisionhereof and that the remainder of this Agreement shall
be construed as if such invalid, illegal or unenforceable clause or provision was never contained
herein; it is also the intention of the Parties hereto that in lieu of each clause or provision of this
Agreement that is invalid, illegal, orunenforceable, there be added as a part of the Agreement a
clause or provision as similar in terms tosuch invalid,illegal or unenforceable clause or provision
as may be possible, legal, valid and enforceable.
XIII. LICENSES/CERTIFICATIONS
Service Provider warrants and certifies that Service Provider and any other person designated to
provide serviceshereunder has the requisite training, license and/or certification to provide said
services, and meetsall competence standards promulgated by all other authoritative bodies, as
applicable to the servicesprovided herein.
XIV. COMPLIANCE
Service Provider shall provide and perform all services required under this Agreement in
compliance withall applicable federal, state and local laws, rules and regulations.
XV. NONWAIVER OF PERFORMANCE
Unless otherwise specifically provided for in this Agreement,a waiver by either Party of a breach
of any of the terms,conditions,covenants,or guarantees of this Agreement shall not be construed
orheld to be a waiver of any succeeding or preceding breach of the same or any other term,
condition,covenant or guarantee herein contained. Further, any failure of either Party to insist in
any one or more cases upon the strict performance of any of the covenants of this Agreement, or
to exercise any option herein contained, shall in no event be construed as a waiver or
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relinquishment for the future of such covenant or option. In fact, no waiver, change,
modification, or discharge by either Party hereto of any provision of this Agreement shall be
deemed to have been made or shall be effective unless expressed in writing and signed by the
Party to be charged. In case of EDC, such changes must be approved by the EDC Board, as
described in Article XVI. Amendments.No act or omission by a Party shall in any manner impair
or prejudice any right,power,privilege,or remedyavailable to that Party hereunder or by law or
in equity, such rights,powers,privileges,or remediesto be always specifically preserved hereby.
XVI. LAW APPLICABLE
This Agreement shall be construed under and in accordance with the laws of the state of Texas
and all obligation of the Parties created are performable in Jefferson County, Texas.
Venue for any legal action or proceeding brought or maintained, directly or indirectly,as a result
of this Agreement shall be heard and determined in a court of competent jurisdiction in Jefferson
County, Texas.
XVII. LEGAL AUTHORITY
The signer of this Agreement for Service Provider represents, warrants, assures and guarantees
that he hasfull legal authority to execute this Agreement on behalf of Service Provider and to
bind Service Provider to allof the terms,conditions,provisions and obligations herein contained.
XVIII.PARTIES BOUND
This Agreement shall be binding on and inure to the benefit of the Parties hereto and their
respectiveheirs, executors, administrators, legal representatives, and successors and assigns,
except as otherwise expressly provided for herein.
XIX. CAPTIONS
The captions contained in this Agreement are for convenience of reference only, and in no way
limitor enlarge the terms and/or conditions of this Agreement.
XX. INCORPORATION OF EXHIBITS
Each of the Exhibits listed below is an essential part of the Agreement, which governs the rights
and duties of the Parties, and shall be incorporated herein for all purposes:
Exhibit"A"-Scope of Services,including Project Description/Scope of Services;
Exhibit"B"-Fee Summary for Service Provider Services and Proposed Project Schedule
XXI. ENTIRE AGREEMENT
This Agreement, together with its authorizing resolution and its exhibits, if any, constitute the
finaland entire agreement between the Parties hereto and contain all of the terms and conditions
agreed upon. No other agreements, oral or otherwise, regarding the subject matter of this
Agreement shallbe deemed to exist or to bind the Parties hereto,unless same be in writing,dated
after the date hereto, and duly executed by the Parties, in accordance with Article XI.
Amendments.
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EXECUTED and AGREED to as of the dates indicated below.
PORT ARTHUR EDC SERVICE PROVIDER
(Signature) (Signature)
Printed Name: Printed Name:
Title: EDC Executive Title:
Director
Date: Date:
EFFECTIVE DATE:
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EXHIBIT A
SCOPE OF WORK:
• One Annual Major PM
Change 18 gallons oil
3 Oil filters
2 Fuel Filters
2 Coolant Filters
2 Air Filters
Check Coolant level
Check Battery voltage
Check Output voltage
Run Generator for and hour and transfer power
• Three Minor PM's
Check Fluid levels
Check Battery voltage
Check Output voltage
Run Generator for and hour and transfer power
• Eight Monthly Cranks
Run Generator for 30 Minutes every Month
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EXHIBIT B
QUANTITY DESCRIPTION UNIT PRICE LINE TOTAL
1.00 Major PM $5,476.92 $5,476.92
3.00 Minor PM $ 653.85 $1,961.54
8.00 Monthly Cranks $ 261.54 $2,092.31
TOTAL: $9,530.77
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