HomeMy WebLinkAboutRES 12-225 RESOLUTION NO. 12-225
BE IT RESOLVED BY THE CITY COUNCIL
OF THE CITY OF BEAUMONT:
THAT the City Manager is hereby authorized to execute a Performance Contract with
Johnson Controls, Inc. for installation and implementation of an Automated Metering and
Leak Detection Infrastructure for the Water Utilities Department. The agreement is
substantially in the form attached hereto as Exhibit "A" and made a part hereof for all
purposes.
PASSED BY THE CITY COUNCIL of the City of Beaumont this the 25th day of
September, 2012. .r �,`
()Aayor Becky Ames -
I
11
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Johnson Controls, Inc. -- Solutions Group
Johnson 460 Performance Contract
Controls
DRAFT: September 20,2012
PERFORMANCE CONTRACT
This Performance Contract(this"Agreement") is made this,_day of September, 2012 between:
PARTIES
JOHNSON CONTROLS, INC. ("JCI")
3021 West Bend Drive
Irving, TX 75063
and
CITY OF BEAUMONT("Customer")
801 Main Street, Suite 100
Beaumont, TX 77701-3548
RECITALS
ITALS
WHEREAS, Customer desires to retain JCI to perform the work specified in Schedule 1 (Scope of Work)hereto
(the"Work") relating to the installation of the improvement measures(the"Improvement Measures")described
therein; and
WHEREAS,Customer is authorized and empowered under applicable Laws(as defined below)to enter into this
Agreement,and has taken all necessary action under applicable Laws to enter into this Agreement; and
WHEREAS, Customer selected JCI to perform the Work after it determined JCI's proposal was the most
advantageous to Customer in accordance with all applicable procurement and other Laws.
NOW,THEREFORE, in consideration of the mutual promises set forth herein, the parties agree as follows:
AGREEMENT
1. SCOPE OF THE AGREEMENT. JCl shall perform the Work set forth in Schedule 1. After the Work is
Substantially Complete(as defined below) and the Certificate of Substantial Completion is executed by
Customer and JCI, JCI shall provide the assured performance guarantee(the"Assured Performance
Guarantee")and the measurement and verification services(the"M&V Services")set forth in Schedule 2
(Assured Performance Guarantee—Utility Meters), as applicable. Customer shall make payments to JCI for the
Work and the M&V Services in accordance with Schedule 4(Price and Payment Terms).
2. AGREEMENT DOCUMENTS: In addition to the terms and conditions of this Agreement, the following
Schedules are incorporated into and shall be deemed an integral part of this Agreement:
Schedule 1 —Scope of Work
Schedule 2—Assured Performance Guarantee—Utility Meters
Performance Contract(Rev 15)
Jolt'"Controls,Inc.—Proprietary
®2008 Johnson Controls,Inc.
EXHIBIT "A"
Schedule 3—Customer Responsibilities
Schedule 4 Price and Payment Terms
3. NOTICE TO PROCEED;SUBSTANTIAL COMPLETION;M&V SERVICES. This Agreement shall become
effective on the date of the last signature on the signature page below. JCI shall commence performance of
the Work within ten (10) business days of receipt of Customer's Notice to Proceed, a form of which is attached
hereto as Attachment 1. The M&V Services shall commence on the first day of the month following the month
in which Customer executes a Certificate of Substantial Completion and shall continue throughout the
Guarantee Term,subject to earlier termination of the Assured Performance Guarantee as provided herein. For
purposes of this Agreement, "Substantial Completion"means that JCI has provided sufficient materials and
services to permit Customer to operate the Improvement Measures in accordance with their intended purpose.
Customer acknowledges and agrees that if,for any reason, it(i)cancels, or terminates receipt of M&V
Services, (ii)fails to pay for M&V Services in accordance with Schedule 4, (iii)fails to fulfill any of Customer's
responsibilities necessary to enable JCI to complete the Work and provide the M&V Services,or(iv)otherwise
cancels,terminates or materially breaches this Agreement, the Assured Performance Guarantee shall
automatically terminate and JCI shall have no liability thereunder.
4. DELAYS AND IMPACTS. If JCI is delayed in the commencement, performance,or completion of the Work
and/or M&V Services by causes beyond its control and without its fault, including but not limited to inability to
access property; concealed or unknown conditions encountered at the project,differing from the conditions
represented by Customer in the bid documents or otherwise disclosed by Customer to JCI prior to the
commencement of the Work; a Force Majeure(as defined below)condition; failure by Customer to perform its
obligations under this Agreement; or failure by Customer to cooperate with JCI in the timely completion of the
Work, JCI shall provide written notice to Customer of the existence, extent of,and reason for such delays and
impacts. Under such circumstances, an equitable adjustment in the time for performance, price and payment
terms, and the Assured Performance Guarantee shall be made.
5. ACCESS. Customer shall provide JCI, its subcontractors, and its agents cress to all
facilities and properties in Customer's control that are subject to the Work and M&V Services. Customer further
agrees to assist provide reasonable assistance to JCI, its subcontractors, and its agents to gain access to
facilities and properties that are not controlled by Customer and are necessary for JCI to complete the Work
and provide the M&V Services. An equitable adjustment in the time for performance, price and payment
Terms, and Assured Performance Guarantee shall be made as a result of any failure to grant such access.
IL PERMITS,TAXES,AND FEES. unless otherwise specified in Schedule 3(Customer Responsibilities), JCI
shall be responsible for obtaining all building permits required for it to perform the Work. Unless oth&A.A
, , ' , all Zoning aAd land use shaAw
JCI shall not be obligated to provide any changes to or improvement of the facilities or any portion thereof
required under any applicable building, fire, safety, sprinkler or other applicable code, standard, law, regulation,
ordinance or other requirement unless the same expressly regulates the installation of the Improvement
Measures. Without limiting the foregoing, JCI's obligation with respect to the Work is not intended to
encompass any changes or improvements that relate to any compliance matters(whether known or unknown)
that are not directly related to the installation of the Improvement Measures or which have been imposed or
enforced because of the occasion or opportunity of review by any governmental authority. G ust-a—mer shall be
F96PORSible fQF and shall pay wheA due all assessments, GhaF9es and sales, use, ,exGise, OF othe
real GF pemaAal lompeFty taxes relatiAg tQ equipment ar matarial *inoh Wad in the Impl:Gvement Measures. Any
C1-AtArner to jG1.
7. WARRANTY. JCI will perform the Work in a professional, workman-like manner. JCI will promptly re-perform
any non-conforming Work for no charge, as long as Customer provides written notice to JCI within one(1)year
following Substantial Completion or such other period identified in Schedule 1. If JCI installs or furnishes goods
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or equipment under this Agreement, and such goods or equipment is covered by an end-user warranty from
their manufacturer, JCI will transfer the benefits of such warranty to Customer. The foregoing remedy with
respect to the Work, together with any remedy provided by goods or equipment manufacturers, shall be
Customer's sole and exclusive remedies for warranty claims. Customer agrees that the one(1) year period
following Substantial Completion, or such other period identified in Schedule 1, shall be a reasonable time for
purposes of submitting valid warranty claims with respect to the Work. These exclusive remedies shall not
have failed of their essential purpose so long as JCI transfers the benefits of any goods or equipment end-user
warranty to Customer and remains willing to re-perform any non-conforming Work for no charge within the one
(1)year period described above or such other period identified in Schedule 1. NO OTHER EXPRESS OR
IMPLIED WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, ARE PROVIDED BY JCI. This warranty does not extend to any Work that has been
abused, altered, or misused,or repaired by Customer or third parties without the supervision or prior written
approval of JCI. Except with respect to goods or equipment manufactured by JCI and fumished to Customer
hereunder, for which JCI shall provide its express written manufacturer's warranty,JCI shall not be considered
a merchant or vendor of goods or equipment.
8. CLEANUP. JCI shall keep the premises and the surrounding area free from accumulation of waste materials
or rubbish caused by the Work and, upon completion of the Work, JCI shall remove all waste materials,
rubbish, tools, construction equipment, machinery, and surplus materials. Grounds must be restored to their
original condition or better upon completion of the Work.
9. SAFETY;COMPLIANCE WITH LAWS. JCI shall be responsible for initiating, maintaining, and supervising all
( safety precautions and programs in connection with the performance of the Work and M&V Services. liar}n
JCI aedQ,stQm& shall comply with all applicable laws, ordinances, rules, regulations, and lawful orders of
public authorities(collectively, "Laws") in connection with its performance hereunder.
10. ASBESTOS-CONTAINING MATERIALS AND OTHER HAZARDOUS MATERIALS.
Asbestos-Containing Materials: Neither party desires to or is licensed to undertake direct obligations relating to
the identification, abatement, cleanup, control, removal or disposal of asbestos-containing materials("ACM').
Consistent with applicable Laws, Customer shall supply JCI with any information in its possession relating to
the presence of ACM in areas where JCI undertakes any Work or M&V Services that may result in the
disturbance of ACM. It is JCI's policy to seek certification for facilities constructed prior to 1982 that no ACM is
present,and Customer shall provide such certification for buildings it owns, or aid JCI in obtaining such
certification from facility owners in the case of buildings that Customer does not own, if JCI will undertake Work
or M&V Services in the facility that could disturb ACM. If either Customer or JCI becomes aware of or suspects
the presence of ACM that may be disturbed by JCI's Work or M&V Services, it shall promptly stop the Work or
M&V Services in the affected area and notify the other. As between Customer and JCI, Customer shall be
responsible at its sole expense for addressing the potential for or the presence of ACM in conformance with all
applicable Laws and addressing the impact of its disturbance before JCI continues with its Work or M&V
Services, unless JCI had actual knowledge that ACM was present and acted with intentional disregard of that
knowledge in which case(i)JCI shall be responsible at is sole expense for remediating areas impacted by the
disturbance of the ACM, and (ii)Customer shall resume its responsibilities for the ACM after JCI's remediation
has been completed.
Other Hazardous Materials: JCI shall be responsible for removing or disposing of any Hazardous Materials(as
defined below)that it uses in providing Work or M&V Services("JCI Hazardous Materials")and for the
remediation of any areas impacted by the release of JCI Hazardous Materials. For other hazardous materials
that may be otherwise present at Customer's facilities("Non-JCI Hazardous Materials"), Customer shall supply
JCI with any information in its possession relating to the presence of such materials if their presence may affect
JCI's performance of the Work or M&V Services. If either Customer or JCI becomes aware of or suspects the
presence of Non-JCI Hazardous Materials that may interfere with JCI's Work or M&V Services, it shall promptly
stop the Work or M&V Services in the affected area and notify the other. As between Customer and JCI,
Customer shall be responsible at its sole expense for removing and disposing of Non-JCI Hazardous Materials
from its facilities and the remediation of any areas impacted by the release of Non-JCI Hazardous Materials,
unless JCI had actual knowledge that Non-JCI Hazardous Materials were present and acted with intentional
disregard of that knowledge, in which case(i)JCI shall be responsible at its sole expense for the remediation of
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any areas impacted by its release of such Non-JCI Hazardous Materials,and(ii)Customer shall remain
responsible at its sole expense for the removal of Non-JCI Hazardous Materials that have not been released
and for releases not resulting from JCI's performance of the Work or M&V Services. For purposes of this
Agreement,"Hazardous Materials"means any material or substance that, whether by its nature or use, is now
or hereafter defined or regulated as a hazardous waste, hazardous substance, pollutant or contaminant under
applicable Law relating to or addressing public and employee health and safety and protection of the
environment, or which is toxic, explosive, corrosive,flammable, radioactive, carcinogenic, mutagenic or
otherwise hazardous or which is or contains petroleum, gasoline,diesel,fuel, another petroleum hydrocarbon
product, or polychlorinated biphenyls. Hazardous Materials specifically includes mold and lead-based paint
and specifically excludes ACM. JCI shall have no obligations relating to the identification, abatement, cleanup,
control, removal, or disposal of mold, regardless of the cause of the mold.
Env#enmeAtal4ndegy�ity. To the fullest wdeAt peFm*#ed by Law, Gustemef shall iAdemnify and hold harmlerse
,
, Felease, dIsGhaFge, handling OF
11. CHANGE ORDERS. The parties,without invalidating this Agreement, may request changes in the Work to be
performed under this Agreement,consisting of additions, deletions, or other revisions to the Work("Change
Orders"). The price and payment terms, time for performance and, if necessary, the Assured Performance
Guarantee, shall be equitably adjusted in accordance with the Change Order. Such adjustments shall be
determined by mutual agreement of the parties. JCI may delay performance until adjustments arising out of the
Change Order are clarified and agreed upon. Any Change Order must be signed by an authorized
representative of each party. If concealed or unknown conditions are encountered at the project, differing from
the conditions represented by Customer in the bid documents or otherwise disclosed by Customer to JCI prior
to the commencement of the Work, price and payment terms, time for performance and, if necessary,the
Assured Performance Guarantee shall be equitably adjusted. Claims for equitable adjustment may be asserted
in writing within a reasonable time from the date a party becomes aware of a change to the Work by written
notification. Failure to promptly assert a request for equitable adjustment, however, shall not constitute a
waiver of any rights to seek any equitable adjustment with respect to such change.
12. CUSTOMER FINANCING; TREATMENT;TAXES. The parties acknowledge and agree that JCI is not making
any representation or warranty to Customer with respect to matters not expressly addressed in this Agreement,
including, but not limited to:
(a) Customer's ability to obtain or make payments on any financing associated with paying for the
Improvement Measures, related services, or otherwise;
(b) Customer's proper legal, tax, accounting, or credit rating agency treatment relating to this
Agreement; and
(c) the necessity of Customer to raise taxes-water and wastewater rates or seek additional funding for
any purpose.
Customer is solely responsible for its obligations and determinations with respect to the foregoing matters. In
addition, the parties acknowledge and agree that Customer shall be responsible to comply, at its cost and
expense, with all Laws that may be applicable to it relating to performance contracting, including, without
limitation, any requirements relating to the procurement of goods and/or services and any legal, accounting, or
engineering opinions or reviews required or obtained in connection with this Agreement.
Performance Contract(Rev 15)
Johnson Controls,Inc.—Proprietary
®2008 Johnson Controls,Inc.
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13. INSURANCE. JCI shall maintain insurance in amounts no less than those set forth below in full force and
effect at all times until the Work has been completed, and shall provide a certificate evidencing such coverage
promptly following Customer's request therefor.
COVERAGES LIMITS OF LIABILITY
Workmen's Compensation Insurance or self insurance, Statutory
including Employer's Liability
Commercial General Liability Insurance $5,000,000 Per Occurrence
$5,000,000 Aggregate
Comprehensive Automobile Liability Insurance $5,000,000 Combined Single Limit
The above limits may be obtained through primary and excess policies,and may be subject to self-insured retentions.
Customer shall be responsible for obtaining builder's risk insurance coverage for the Improvement Measures
and shall at all times be responsible for any loss or casualty to the Improvement Measures. Customer shall
also maintain insurance coverage,of the types and in the amounts customary for the conduct of its business,
throughout the term of this Agreement.
14. INDEMNIFICATION.
ind-emnified paFty to prGmptly advise the iAdemnifying paFty Gf the Glaim pursuant to the AefiGe provision of this
AgFeementjCl shall save harmless Customer from all claims and liability due to activities of JCI its amnts or
employees performed under this Agreement and which result from an error,omission or negligent act of JCI or
any person employed by JCI JCI shall also save harmless Customer from any and all reasonable and
documented attomevs'fees which Customer incurs in litigation resisting such claims or liability which might
imposed on Customer as a result'of such activities byt JCI, its agents or employees.
15. LIMITATION OF LIABILITY. NEITHER JCI NOR CUSTOMER WILL BE RESPONSIBLE TO THE OTHER
FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, REMOTE, PUNITIVE, EXEMPLARY, LOSS OF
PROFITS OR REVENUE, LOSS OF USE, OR SIMILAR DAMAGES, REGARDLESS OF HOW
CHARACTERIZED AND REGARDLESS OF A PARTY HAVING BEEN ADVISED OF THE POSSIBILITY OF
SUCH POTENTIAL LOSSES OR RELIEF,ARISING IN ANY MANNER FROM THIS AGREEMENT, THE
WORK,THE IMPROVEMENT MEASURES,THE PREMISES, THE M&V SERVICES, OR OTHERWISE.
WITHOUT LIMITING JCI'S EXPRESS OBLIGATIONS UNDER THE ASSURED PERFORMANCE
GUARANTEE, JCI'S LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION,
SHALL IN NO EVENT EXCEED THE AMOUNT OF THE PAYMENTS ACTUALLY RECEIVED BY JCI UNDER
SCHEDULE 4. If this Agreement covers fire safety or security equipment, Customer understands that JCI is
not an insurer regarding those services, and that JCI shall not be responsible for any damage or loss that may
result from fire safety or security equipment that fails to prevent a casualty loss. The foregoing waivers and
limitations are fundamental elements of the basis for this Agreement between JCI and Customer, and each
party acknowledges that JCI would not be able to provide the work and services contemplated by this
Agreement on an economic basis in the absence of such waivers and limitations, and would not have entered
into this Agreement without such waivers and limitations.
16. FORCE MAJEURE. Neither party will be responsible to the other for damages, loss, injury, or delay caused by
conditions that are beyond the reasonable control, and without the intentional misconduct or negligence of that
party. Such conditions(each, a"Force Majeure") include, but are not limited to: acts of God; acts of
Government agencies; strikes; labor disputes; fires; explosions or other casualties; thefts; vandalism; riots or
war; acts of terrorism; electrical power outages; interruptions or degradations in telecommunications,computer,
or electronic communications systems; changes in Laws; or unavailability of parts, materials or supplies.
17. JCI'S PROPERTY. All materials#arf►ished caused by JCI personnel and/or JCI authorized subcontractors or
agents at the ingtallat for installation purposes, including documentation, schematics, test equipment,
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software and associated media remain the exclusive property of JCI or such other third party. Customer
agrees not to use such materials for any purpose at any time without the express authorization of JCI.
Customer agrees to allow JCI personnel and/or JCI authorized subcontractors or agents to retrieve and to
remove all such materials remaining after installation or maintenance operations have been completed.
Customer acknowledges that any software furnished in connection with the Work and/or M&V Services is
proprietary and subject to the provisions of any software license agreement associated with such software.
18. DISPUTES. JCI and Customer will attempt to settle any controversy, dispute, difference, or claim between
them concerning the performance, enforcement, or interpretation of this Agreement(collectively,"Dispute")
through direct discussion in good faith, but if unsuccessful,will submit any Dispute to non-binding mediation in
efferson County. If the parties
are unable to agree on a mediator or a date for mediation, either party may request JAMS,4R the Jefferson
County Bar Association Mediation Center to appoint a mediator and designate the time and procedure for
mediation. Such mediator shall be knowledgeable, to each party's reasonable satisfaction, with respect to
matters concerning construction law. Neither JCI nor Customer will file a lawsuit against the other until not less
than sixty(60)days after the mediation referred to herein has occurred, unless one or both parties is genuinely
and reasonably concerned that any applicable statute of limitations is on the verge of expiring. dCt-AND
GU=MER WEREBY%AIA VE THEIR RESPECTIVE RIGHTS TQ A jUR-Y TRIAL AS TO ANY GLAIM OR
NT-, INGLUDING GONTRAGT-,TORT-AND STATUTORY.GLAIMS.AND EACH OF THE PARTIES
HERETO AGKNQ46EDGra8 TWAT-TWIS WAIVER 19 A MATERIAL INPUGEMENT TO ENT614 INTO
NT,AND T-14 GONTINUE TO RELY ON THIS WAIVER IN T14EIR RELAXED
FUTURE DEALINGS UNDER TWIS AGREEMENT.
19. GOVERNING LAW. This Agreement and the construction and enforceability thereof shall be interpreted in
accordance with the laws of the state where the Work is conducted.
20. CONSENTS;APPROVALS; COOPERATION. Whenever Customer's consent, approval, satisfaction or
determination shall be required or permitted under this Agreement, and this Agreement does not expressly
state that Customer may act in its sole discretion, such consent, approval, satisfaction or determination shall
not be unreasonably withheld, qualified, conditioned or delayed,whether or not such a"reasonableness"
standard is expressly stated in this Agreement. Whenever Customer's cooperation is required by JCI in order
to cant'out JCI's obligations hereunder, Customer agrees that it shall act in good faith and reasonably in so
cooperating with JCI and/or JCI's designated representatives or assignees or subcontractors. Customer shall
furnish decisions, information, and approvals required by this Agreement in a timely manner so as not to delay
the performance of the Worts or M&V Services.
21. FURTHER ASSURANCES. The parties shall execute and deliver all documents and perform all further acts
that may be reasonably necessary to effectuate the provisions of this Agreement.
22. INDEPENDENT CONTRACTOR. The relationship of the parties hereunder shall be that of independent
contractors. Nothing in this Agreement shall be deemed to create a partnership,joint venture, fiduciary, or
similar relationship between the parties.
23. POWER AND AUTHORITY. Each party represents and warrants to the other that(a) it has all requisite power
and authority to execute and deliver this Agreement and perform its obligations hereunder,(b)all corporate,
board, body politic, or other approvals necessary for its execution, delivery, and performance of this Agreement
have been or will be obtained, and(c)this Agreement constitutes its legal, valid,and binding obligation.
23. SEVERABILITY. In the event that any clause, provision, or portion of this Agreement or any part thereof shall
be declared invalid, void, or unenforceable by any court having jurisdiction, such invalidity shall not affect the
validity or enforceability of the remaining portions of this Agreement unless the result would be manifestly
inequitable or materially impair the benefits intended to inure to either party under this Agreement.
24. COMPLETE AGREEMENT. It is understood and agreed that this Agreement contains the entire agreement
between the parties relating to all issues involving the subject matter of this Agreement. No binding
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understandings, statements, promises or inducements contrary to this Agreement exist. This Agreement
supersedes and cancels all previous agreements, negotiations,communications, commitments and
understandings with respect to the subject matter hereof,whether made orally or in writing. Each of the parties
to this Agreement expressly warrants and represents to the other that no promise or agreement which is not
herein expressed has been made to the other, and that neither party is relying upon any statement or
representation of the other that is not expressly set forth in this Agreement. Each party hereto is relying
exclusively on the terms of this Agreement, its own judgment, and the advice of its own legal counsel and/or
other advisors in entering into this Agreement. Customer acknowledges and agrees that any purchase order
issued by Customer, in accordance with this Agreement, is intended only to establish payment authority for
Customer's internal accounting purposes. No purchase order shall be considered a counteroffer, amendment,
modification, or other revision to the terms of this Agreement. No term or condition included in Customer's
purchase order will have any force or effect.
25. HEADINGS. The captions and titles in this Agreement are for convenience only and shall not affect the
interpretation or meaning of this Agreement.
26. COUNTERPARTS. This Agreement may be executed in any number of counterparts, all of which when taken
together shall constitute one single agreement between the parties.
27. NOTICES. All notices or communications related to this Agreement shall be in writing and shall be deemed
served if and when sent by facsimile or mailed by certified or registered mail: to Johnson Controls, Inc. at the
address listed on the first page of this Agreement, ATTN: Regional Solutions Manager,with a copy to Johnson
Controls, Inc., ATTN: General Counsel—Building Efficiency Americas, 507 East Michigan Street, Milwaukee,
Wisconsin, 53202:and to Customer at the address listed on the first page of this Agreement.
CITY OF BEAUMONT JOHNSON CONTROLS, INC.
Signature: Signature:
Printed Name: Printed Name:
Title: Title:
Date: Date:
Performance Contract(Rev 15)
Johnson Controls,Inc.-Proprietary
®2008 Johnson Controls,Im
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