City Council

SPECIAL MEETING CITY OF ROSWELL COUNCIL - AGENDA MONDAY, APRIL 17, 2023 at 5 p.m. Roswell City Hall - Large Conference Room 425 N. Richardson Ave Roswell, New Mexico 88201 Notice of this meeting has been given to the public in compliance with Sections 10-15-1 through 10-15-4 NMSA 1978 and Resolution 23-01. Except for emergency matters, the City Council shall take action only on the specific items listed on the Agenda. _____________________________________________________________________________________________ APRIL 17, 2023 5:00 p.m. MAYOR – Timothy Z. Jennings Ward l Ward II Ward III Ward IV Ward V Juan Oropesa Jason Perry Jeanine Best Savino Sanchez Jr. Angela G. Moore Cristina A. Arnold Juliana Halvorson Edward L. Heldenbrand Robert B. Corn Barry Foster _____________________________________________________________________________________________ WELCOME! We are very glad you have joined us for the Roswell Special City Council meeting. If you wish to speak, please sign up at the podium prior to 5:00 p.m. In compliance with Resolution 23-01, all matters listed under Consent Items/Consent Agenda are considered routine by the City Council and will be approved by one motion. There will be no separate discussion on these items. If any member of the council desires to discuss the matter, that item will be removed from the consent agenda and will be considered separately. Any item approved as part of the consent agenda is not an agenda item for the purpose of the public participating. The Council is pleased to hear relevant comments; however, a 3-minut limit is set in accordance with Resolution 17-65 (Governing Body Rules of Order). Large groups are asked to name a spokesperson. Robert’s Rules of Order govern the conduct of the meeting. “THANK YOU” for participating in your City Government. _____________________________________________________________________________________________ CALL TO ORDER ROLL CALL APPROVAL OF THE AGENDA 1. Consider approval of the agenda for the April 17,2023, Special City Council meeting. (Arnold/Martinez) ACTION ITEMS 2. Consider approval of award to Custom Construction and expenditure in the total amount of $149,555.37 for the remediation of the mold found in and around the indoor pool area of the Roswell Recreation & Aquatic Center. (Arnold/Holcombe) ADJOURN If you are an individual with a disability who is in need of a reader, amplifier, qualified sign language interpreter, or any other form of auxiliary aid or service to attend or participate in the hearing or meeting, please contact Human Resources at 575-624-6700 at least one week prior to the meeting or as soon as possible. Public documents including the agenda and minutes can be provided in various accessible formats. Please contact the City Clerk at 575-624-6700 if a summary of other type of accessible format is needed. Printed and posted: Friday, April 14, 2023. THE PUBLIC IS ENCOURAGED TO PARTICIPATE ELECTRONICALLY THROUGH THE GO-TO-MEETING APPLICATION AND NOT PHYSICALLY ATTEND DURING THE PANDEMIC. City Council Meeting. Please join my meeting from your computer, tablet or smartphone. https://global.gotomeeting.com/join/815060573 You can also dial in using your phone. United States: +1 (669) 224-3412 Access Code: 815-060-573 New to GoToMeeting? Get the app now and be ready when your first meeting starts: https://global.gotomeeting.com/install/815060573  ASBESTOS, LEAD OR MOLD REMEDIATION SERVICE AGREEMENT This ASBESTOS, LEAD OR MOLD REMEDIATION SERVICE AGREEMENT (“Agreement”) is hereby entered into on this April ___, 2023 (the “Effective Date”), by and between the CITY OF ROSWELL, NEW MEXICO (“City”), a political subdivision of the State of New Mexico, located at 425 N. Richardson, Roswell, NM 88201, and CUSTOM CONSTRUCTION II, LLC, a(n) New Mexico Corporation, whose principal address is #4 Wool Bowl Circle, Roswell, NM 88201 (“CUSTOM CONSTRUCTION”), collectively referred to herein as the Parties. RECITALS WHEREAS, on March ___, 2023, City issued ITB-23-20: CUSTOM CONSTRUCTION (“ITB-23-20”) which ITB is attached hereto as Exhibit 1 and incorporated by reference; WHEREAS, ITB-23-20 sought for a BIDDER to furnish the commodities and/or services as described in more detail in the Summary Scope of Service/Specifications; WHEREAS, ITB-23-20 contemplates that, over the course of the Term, as defined in ITB- 23-20, contractors whose Bid is accepted by City shall have the opportunity to be awarded project for furnishing the commodities and/or services defined in the Scope of Services/Specifications;; WHEREAS, ITB-23-20 further contemplates that City may award any project under ITB- 23-20 to the superior Bid for the project, as determined by City in its own discretion to be in its best interest; WHEREAS, Contractors submitted a Bid in response to ITB-23-20 that accepted by City on April ___, 2023, which Bid is attached hereto as Exhibit 2 and incorporated by reference; and WHEREAS, the Parties wish hereby to set forth and agree to the terms and procedures under which City may award, and Contractors may accept and perform, projects pursuant to ITB- 23-20. NOW THEREFORE, in consideration for the mutual covenants contained herein, CUSTOM CONSTRUCTION and the City agree as follows: 1. TERM The term of this Agreement shall commence on the Effective Date and shall continue for a period of 1 year (the “Term”). This Agreement may thereafter be renewed for up to 3 additional ASBESTOS, LEAD OR MOLD REMEDIATION Page 1 of 9 SERVICE AGREEMENT periods of 1 year each (the “Renewal Terms”), upon mutual written agreement of the Parties. Each renewal period shall be governed by the same terms and conditions hereof, except as may be otherwise agreed in writing by the Parties. 2. SCOPE OF WORK a. In consideration for the Compensation, as that term is elsewhere defined herein, and for the other warranties, covenants and obligations of the City provided for herein, CUSTOM CONSTRUCTION hereby agrees to provide the goods and perform the services described in and according to the terms set forth below in Exhibit A: Scope of Work, which Exhibit is attached hereto and incorporated by reference as if set forth fully herein. CUSTOM CONSTRUCTION’s requirements under this Section shall be referred to herein as the “Work.” b. The Work shall be performed in a proficient and skillful manner. Unless otherwise specifically provided in this Agreement, all equipment, materials and articles incorporated in the Work are to be new and of the most suitable grade for the purpose intended. 3. COMPENSATION In consideration for the Work, as that term is elsewhere defined herein, and for the other warranties, covenants and obligations of CUSTOM CONSTRUCTION set forth herein, the City hereby agrees to pay to CUSTOM CONSTRUCTION the compensation described in and according to the terms set forth below in Exhibit B: Compensation, which Exhibit is attached hereto and incorporated by reference as if set forth fully herein. The City’s requirements under this Section shall be referred to herein as the “Compensation.” 4. COMPLIANCE WITH LAW a. CUSTOM CONSTRUCTION shall keep fully informed of all state and national laws and municipal ordinances and regulations in any manner affecting those engaged or employed in connection with the Work, or the materials or equipment used in the Work, or in any way affecting the conduct of the Work, and of all orders and decrees of bodies or tribunals having any jurisdiction or authority over the Work. b. CUSTOM CONSTRUCTION hereby warrants that it currently observes and complies with all such applicable laws, ordinances, regulations, orders and decrees, and that it shall remain in full such compliance, and shall cause all of its employees, agents, and subcontractors to so remain, throughout the Term, and all Renewal Terms. ASBESTOS, LEAD OR MOLD REMEDIATION Page 2 of 9 SERVICE AGREEMENT  c. CUSTOM CONSTRUCTION shall further protect, defend and indemnify the City and its councilors, officials, officers and agents against any claim or liability arising from or based on the violation of any such law, ordinance, regulation, order, or decree, whether by CUSTOM CONSTRUCTION or CUSTOM CONSTRUCTION's employees. 5. LICENSES AND PERMITS CUSTOM CONSTRUCTION shall pay for and obtain, and maintain in full force during the Term, and any Renewal Term, any and every permit or license necessary and appropriate for performance of the Work. CUSTOM CONSTRUCTION shall provide copies of any permit or license required under this Section upon demand of the City. 6. RECORD KEEPING AND INSPECTION a. CUSTOM CONSTRUCTION shall keep and maintain its books, records, documents and other evidence in connection with the Work (and require its subcontractors to keep the same) and adopt accounting procedures and practices sufficient to reflect properly all charges and payments of whatever nature relating to the Work or otherwise chargeable or owing to the City in connection with the performance of the Work. This system of accounting must be in accordance with generally accepted accounting principles and practices, consistently applied throughout. CUSTOM CONSTRUCTION’s recordkeeping and accounting system must properly reflect all such fees, charges and payments as they are incurred or made, and must demonstrate support that all amounts charged or payed to the City are properly chargeable or paid in full in accordance with the terms of the Agreement. b. CUSTOM CONSTRUCTION shall maintain all records required under this Section for a period that is the longer of 3 years after termination or expiration of this Agreement, or the period required under applicable law. CUSTOM CONSTRUCTION must not dispose of such documents prior to the expiration of this period without prior written approval from the City. At the City's request, CUSTOM CONSTRUCTION and its subcontractors must furnish the City with all such records that may be requested. 7. INDEPENDENT CONTRACTOR a. The relationship of CUSTOM CONSTRUCTION to the City shall be that of an independent contractor. CUSTOM CONSTRUCTION is not and shall not be considered an employee of the City. CUSTOM CONSTRUCTION and its employees shall not accrue leave, ASBESTOS, LEAD OR MOLD REMEDIATION Page 3 of 9 SERVICE AGREEMENT retirement, insurance, or any other benefits afforded to employees of the City. CUSTOM CONSTRUCTION’s employees, servants, agents, or representatives are not and shall not be deemed employees of the City. b. This Agreement shall further not constitute the formation of a partnership or joint venture. CUSTOM CONSTRUCTION is without authority to act as the agent or representative of the City and shall not purport to agree to or approve on behalf of the City any contract or obligation of the City or obligate or pledge the credit or funds of the City without written approval from the City. 8. TERMINATION Either Party may terminate this Agreement at any time during the Term or any Renewal Term hereof by giving 30 days written notice in advance. Termination under this Section shall not terminate, prejudice or otherwise effect any right or obligation accruing hereunder prior to the termination. 9. INSURANCE a. CUSTOM CONSTRUCTION agrees to have and maintain the polices of insurance set forth in Exhibit C: Insurance, which Exhibit is attached hereto and incorporated by reference as if set forth fully herein. All policies, endorsements, certificates, and/or binders shall be subject to approval by the City as to form and content. These requirements are subject to amendment or waiver only if so approved in writing by the City. A lapse in any required insurance coverage during this Agreement shall be a breach of this Agreement. b. CUSTOM CONSTRUCTION’s insurance obligations under this Agreement shall be: i. all insurance coverage and/or limits by or available to CUSTOM CONSTRUCTION; or ii. the minimum coverage requirements and/or limits set forth in Exhibit C, whichever is greater. c. Any insurance proceeds in excess of or broader than the minimum required coverage and/or minimum required limits set forth in Exhibit C, which are applicable to a given loss, shall be available to the City. No representation is made that the minimum insurance requirements set forth in Exhibit C are sufficient to cover the obligations of CUSTOM ASBESTOS, LEAD OR MOLD REMEDIATION Page 4 of 9 SERVICE AGREEMENT CONSTRUCTION pursuant to this Agreement. CUSTOM CONSTRUCTION’s requirements under this Section shall be referred to herein as the “Insurance.” d. Maintenance of insurance coverage set forth in this Section during the entire Term, and any Renewal Term, is a material element on of this Agreement and failure to maintain or renew coverage or to provide evidence of the existence or renewal of required insurance may be treated by the City as a material breach of this Agreement. 10. INDEMNIFICATION AND HOLD HARMLESS a. CUSTOM CONSTRUCTION agrees to accept responsibility for loss or damage to any person or property, and to release, defend at its own expense, indemnify, and hold harmless the City, its council members, officials, officers, employees, agents, and volunteers, against any and all liability, actions, claims, losses, damages, disabilities, and expenses, including costs of litigation and reasonable attorneys’ fees, that are asserted by any person or entity, to the extent arising out of any and all acts or omissions of CUSTOM CONSTRUCTION, or its officers, employees or agents, in the performance of this Agreement, excluding, however, such liability, claims, losses, damages, or expenses arising from the City’s sole negligence or willful acts. b. CUSTOM CONSTRUCTION agrees to be responsible for all loss or damage from any cause whatsoever to any of its property or equipment. CUSTOM CONSTRUCTION is responsible for providing its own liability and loss insurance coverage for any of its property or equipment and CUSTOM CONSTRUCTION expressly acknowledges that no part of said property or equipment shall be covered under the City’s insurance policies. c. These indemnifications are independent of and shall not in any way be limited by the insurance requirements of this Agreement. Approval by the City of the insurance requirement by this Agreement shall not in any way relieve CUSTOM CONSTRUCTION from liability under this Section. The City’s right to indemnification hereunder shall survive termination, whether for cause or not, or expiration of this Agreement. 11. FORCE MAJEURE CUSTOM CONSTRUCTION shall not be held liable for failure of or delay in performing its obligations under this Agreement if such failure or delay is the result of an act of God, such as earthquake, hurricane, tornado, flooding, or other natural disaster, or in the case of war, action of foreign enemies, terrorist activities, labor dispute or strike, government sanction, ASBESTOS, LEAD OR MOLD REMEDIATION Page 5 of 9 SERVICE AGREEMENT blockage, embargo, or failure of electrical service, nor for any failure or delay caused by the negligence or omission of the City. CUSTOM CONSTRUCTION must make every reasonable attempt to minimize delay of performance. In the event of a force majeure, CUSTOM CONSTRUCTION shall notify the City thereof within 10 days of its occurrence. If such force majeure continues longer than 120 days, either Party may terminate the Agreement, as otherwise provided for herein. 12. NONDISCRIMINATION CUSTOM CONSTRUCTION shall not discriminate against any otherwise qualified employee, applicant for employment, subcontractor, or other person, in connection with the performance of the Work, unless based on a bona fide occupational qualification or other statutory prohibition, because of race, age, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, physical or mental handicap or serious medical condition, or spousal affiliation. In the event of CUSTOM CONSTRUCTION’s noncompliance with the provisions of this Section, this Agreement may be canceled, terminated or suspended, in whole or in part, and CUSTOM CONSTRUCTION may be declared ineligible for further contracts with the City. 13. CHOICE OF LAW AND FORUM SELECTION This Agreement shall be governed by the laws of the State of New Mexico, exclusive of choice of law provisions, and venue for any judicial proceeding resulting here from shall lie in the Fifth Judicial District, Chaves County, New Mexico. 14. NOTICES Notices and other communications under this Agreement must be in writing and are effective upon the sooner to occur of (i) the business day actually received (or if such date is not a business day, on the next business day thereafter), (ii) on the next business day after placing such written notice or communication with a reputable overnight delivery service for overnight (next morning) delivery, or (iii) on the third (3rd) business day following the date on which such written notice or communication was deposited with the United States Postal Service with postage prepaid and marked as certified or registered mail, return receipt requested, so long as, in each case, such written notice or communication was addressed to the Party to whom it was intended at such Party’s address set forth herein or to such other address as that Party may from time to time provide in a writing pursuant to this Subsection to the other Party: ASBESTOS, LEAD OR MOLD REMEDIATION Page 6 of 9 SERVICE AGREEMENT  City of Roswell Custom Construction II, LLC Attn: Chad Cole Attn: Brandon Arnold City Manager Owner P.O. 1838, Roswell, NM 88202-1838 #4 Wool Bowl Circle Roswell, NM 88201 15. This Agreement may be executed in counterparts, each of which shall be deemed to be an original but all of which, taken together, shall constitute one and the same agreement. 16. ENTIRE AGREEMENT, MODIFICATION This Agreement constitutes the entire agreement of the Parties and supersedes any prior agreements, understandings or negotiations, written or oral. This Agreement may only be modified or amended in writing, signed by the Parties hereto, and any such duly-executed written modification or amendment shall be automatically incorporated into this Agreement as if set forth fully herein. 17. SEVERABILITY If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those to which it is held invalid or unenforceable, shall not be affected thereby and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 18. NON-WAIVER. The Parties agree that no failure to exercise and no delay in exercising any right, power or privilege under this Agreement on the part of either Party shall operate as a waiver of any right, power, or privilege under this Agreement. 19. RIGHTS CUMULATIVE All rights, options, and remedies of the City contained in this Agreement shall be construed and held to be cumulative, and no one of them shall be exclusive of the other, and the City shall have the right to pursue any one or all of such remedies or any other remedy or relief which may be provided by law, whether or not stated in this Agreement. 20. BINDING EFFECT ASBESTOS, LEAD OR MOLD REMEDIATION Page 7 of 9 SERVICE AGREEMENT  This Agreement shall be binding upon and insure to the benefit of the parties hereto and their respective heirs, successors, and assigns. 21. NO ASSIGNMENT CUSTOM CONSTRUCTION shall not assign, sublet or subcontract any obligation, duty, right or covenant hereunder without the express written consent of the City, which the City may withhold in its total discretion. 22. AUTHORITY The individual signing below warrants and represents that he or she is duly authorized to execute this Agreement on behalf of CUSTOM CONSTRUCTION. 23. HEADINGS. The paragraph headings contained herein are for convenience and in reference and are not intended to define or limit the scope of any provision of this Agreement. 24. NO ADDITIONAL REPRESENTATIONS a. CUSTOM CONSTRUCTION expressly acknowledges that in entering into this Agreement, it does not rely on any statement, representation, or warranty other than those expressly set out in this Agreement. b. CUSTOM CONSTRUCTION expressly acknowledges that it has been advised to seek its own separate legal counsel for advice with respect to this Agreement, and has had sufficient opportunity to do so. The Parties further agree that interpretation of this Agreement shall be made without regard to authorship or negotiation. [SIGNATURES FOLLOW ON NEXT PAGE] ASBESTOS, LEAD OR MOLD REMEDIATION Page 8 of 9 SERVICE AGREEMENT  IN WITNESS WHEREOF, CUSTOM CONSTRUCTION and the City of Roswell have caused this Agreement to be executed by their duly authorized officers on this April 28, 2023, the Effective Date hereof. “City” “CUSTOM CONSTRUCTION” CITY OF ROSWELL CUSTOM CONSTRUCTION II, LLC _________________________________ ______________________________ By: Chad Cole By: Brandon Arnold City Manager Owner CITY SEAL _________________________________ Amalia Martinez, City Clerk Approved as to form: _________________________________ Hessel Yntema, City Attorney ASBESTOS, LEAD OR MOLD REMEDIATION Page 9 of 9 SERVICE AGREEMENT  EXHIBIT A: SCOPE OF WORK ASBESTOS, LEAD OR MOLD REMEDIATION Page 1 of 1 SERVICE AGREEMENT Exhibit B: Compensation  EXHIBIT B: COMPENSATION ASBESTOS, LEAD OR MOLD REMEDIATION Page 1 of 1 SERVICE AGREEMENT Exhibit B: Compensation  EXHIBIT C: INSURANCE 1. MINIMUM SCOPE OF INSURANCE a. CUSTOM CONSTRUCTION shall procure and maintain for the duration of the contract the following minimum insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Work herein and the results of the Work by CUSTOM CONSTRUCTION, its agents, representatives, employees or subcontractors (check all that apply): ☐ I. Commercial General Liability (“CGL”): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $2,000,000.00 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 05 09 or 25 04 05 09) or the general aggregate limit shall be twice the required occurrence limit. ☐ II. Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if CUSTOM CONSTRUCTION has no owned autos, covering hired (Code 8) and non-owned autos (Code 9), with limits no less than $1,000,000.00 per accident for bodily injury and property damage. ☐ III. Worker’s Compensation: as required by the State of New Mexico, with Statutory Limits and Employer’s Liability Insurance with limit of no less than $1,000,000.00 per accident for bodily injury or disease. ☐ IV. Professional Liability (Errors and Omissions): Insurance appropriate to CUSTOM CONSTRUCTION’s profession, with limit no less than $1,000,000.00 per occurrence or claim, $2,000,000.00 aggregate. ☐ V. Property Insurance: against all risks of loss to any and all improvements, betterments, and fixtures on or to real property made the subject of this Agreement, at full replacement cost with no coinsurance penalty provisions. b. If CUSTOM CONSTRUCTION maintains broader coverage and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or higher limits maintained by CUSTOM CONSTRUCTION. ASBESTOS, LEAD OR MOLD REMEDIATION SERVICE AGREEMENT 2. ADDITIONAL INSURED STATUS The City, its council members, officials, officers, employees, agents, and volunteers are to be covered as additional insured on the CGL policy with respect to liability arising out of the Work performed by or on behalf of CUSTOM CONSTRUCTION, including materials, parts or equipment furnished in connection with the Work. General Liability coverage can be provided in the form of an endorsement to CUSTOM CONSTRUCTION’s insurance (at least as broad as ISO Form 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38, or CG 20 38; and CG 20 37 form is later revisions used). 3. PRIMARY COVERAGE For any claims related to this Agreement, CUSTOM CONSTRUCTION’s insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 01 04 13 as respects the City, its council members, officials, officers, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City, its council members, officials, officers, employees, agents, and volunteers shall be excess of CUSTOM CONSTRUCTION’s insurance and shall not contribute to it. 4. NOTICE OF CANCELLATION Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the City. 5. WAIVER OF SUBROGATION CUSTOM CONSTRUCTION hereby grants to the City a waiver of any right to subrogation which any of CUSTOM CONSTRUCTION’s insurers may acquire against the City by virtue of the payment of any loss under such insurance. CUSTOM CONSTRUCTION agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. 6. SELF INSURED RETENTIONS Self-insured retentions must be declared to and approved by the City. The City may require CUSTOM CONSTRUCTION to purchase coverage with a lower retention or provide proof of ASBESTOS, LEAD OR MOLD REMEDIATION SERVICE AGREEMENT ability to pay losses and related investigations, claim administrations, and defense expenses within the retention. 7. ACCEPTABILITY OF INSURERS Insurance is to be placed with insurers authorized to conduct business in the State of New Mexico with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City. 8. CLAIMS MADE POLICIES If any of the required policies provide claims-made coverage: i. The Retroactive Date must be shown, and must be before the Effective Date of this Agreement or the beginning of Work hereunder. ii. Insurance must be maintained and evidence of insurance must be provided for at least five years after completion of the Work. iii. If coverage is canceled or not renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the Effective Date, CUSTOM CONSTRUCTION must purchase “extended reporting” coverage for a minimum of five years after completion of the Work. 9. VERIFICATION OF COVERAGE CUSTOM CONSTRUCTION shall furnish the City with original certificates and amendatory endorsements or copies of the applicable policy language affecting coverage required by this Section. All certificates and endorsements are to be received and approved by the City before the Work commences. Failure to obtain the required documents prior to commencement of the Work, however, shall not waive CUSTOM CONSTRUCTION’s obligations to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications at any time. 10. SPECIAL RISKS OR CIRCUMSTANCES The City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances. ASBESTOS, LEAD OR MOLD REMEDIATION SERVICE AGREEMENT  EXHIBIT 1: ITB ASBESTOS, LEAD OR MOLD REMEDIATION SERVICE AGREEMENT  EXHIBIT 2: BID ASBESTOS, LEAD OR MOLD REMEDIATION SERVICE AGREEMENT