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HomeMy WebLinkAboutContract 45738 (2)CITYSECRETARV/J CONTRACTNOE. 'i Cl I35i AGREEMENT BETWEEN THE CITY OF FORT WORTH AND NORTH TARRANT INFRASTRUCTURE, LLC THIS AGREEMENT ("Agreement") is made and entered into between THE CITY OF FORT WORTH, a home rule municipal corporation of the State of Texas ("City"), acting by and through Charles W. Daniels, its duly authorized Assistant City Manager, and North Tarrant Infrastructure, LLC, a Limited Liability Company ("Company"), acting by and through Alvaro Gomez-Muro, its duly authorized representative. RECITALS WHEREAS, Company is requesting the City to assist with traffic control during the five year reconstruction of I-3 5 in the downtown area between I-3 0 and I-3 5 W/I-820 interchange to NW Highway 287, (the "Project"); WHEREAS, City will allow off -duty police officers to use City owned marked police vehicles while off -duty for purposes of providing traffic control for this Project; WHEREAS, Company will reimburse City for a portion of the cost of using such vehicles; and WHEREAS, City has found that a public purpose exists to allow the use of marked police vehicles for the purpose of providing traffic control services for this Project. NOW, THEREFORE, in consideration of the mutual covenants herein expressed, the parties agree as follows: AGREEMENT 1. Services. City covenants and agrees to authorize the use of marked police vehicles by off -duty police officers to perform traffic control services for the Project. City will allow the marked police vehicles to be used seven days a week in twelve hour shifts and primarily at night from the hours of 8 p.m. to 5 a.m. with the exception of Friday and Saturday. The hours for Friday and Saturday will be from 8 p.m. to 10 a.m. Actual days and hours will be based on Company's traffic control plan. The use of marked police vehicles by Company shall not interfere with City's ability to provide law enforcement coverage throughout the City. 2. Term. a. The Term of this Agreement shall be effective upon the last date executed and end June 25, 2015 ("Initial Term"). b. In addition to the Initial Term, there shall be four options to renew this Agreement for terms of one year each, unless earlier terminated as provided herein, each a "Renewal Term." Renewal shall occur automatically unless City or Company provides the other party wt_r.30 days Agreement between CFW and North Tarrant Infrastructure, LLC OFFICIA�. ► ., ��'�� For use of police vehicles to provide traffic control services for the I_35Execution;opy Reconstruction Project SECRETARY RECEIVED JUL O82ci4 T WORTHS, TX written notice of its intent not to renew. The Initial Term plus any and all Renewal Terms are collectively herein referred to as the "Term." 3. Fee. Company agrees to pay City $5.00 per hour, per vehicle for use of City's marked police vehicles. The Company is only responsible for paying for services actually received. City does not guarantee a certain amount of services through this Agreement. Payment by Company to City shall be made within thirty (30) days of receipt of invoice or summary of hours from the City, and shall be based upon the number of hours and marked police vehicles used during the month. No payment shall be due until completion by City of all documentation necessary for the Company to process payments. The invoice and documentation shall be submitted to Company no later than the 15th day following the end of the month. 4. Termination. Either party may terminate this Agreement at any time and for any reason by providing the other party with thirty (30) days written notice of termination. In the event this Agreement is terminated prior to expiration of the Term, Company shall only pay the City for services actually rendered as of the effective date of termination. 5. Indenendent Contractor. Company and City shall operate hereunder as independent contractors as to the other party and not as an officer, agent, servant, or employee of either party. Officers working off -duty for Company during the duration of the Agreement shall be considered independent contractors of Company and not employees of City. Company shall be responsible for the acts and omissions of its officers, agents, servants, and employees when acting within the course and scope of their agency/employment and as required by law. The doctrine of respondeat superior shall not apply as between the City and Company, its officers, agents, servants, employees, subcontractors, or off -duty officers, and nothing herein shall be construed as creating a partnership or joint enterprise between City and Company. It is expressly understood and agreed that no officer, agent, employee, subcontractor, or off -duty officer of Company is in the paid service of City while performing traffic control services under this Agreement. 6. Indemnification. COMPANY SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PR OPER T Y LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, TO THE EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF COMPANY, ITS OFFICERS, AGENTS, SERVANTS, OR EMPLOYEES WHEN ACTING WITHIN THE COURSE AND SCOPE OF THEIR A GENCY/EMPL O YMENT AND AS REQUIRED BY LAW. COMPANY HAS AGREED WITH ITS SUBCONTRACTORS AND INDEPENDENT CONTRACTORS THAT EACH RESPECTIVE SUBCONTRACTOR OR INDEPENDENT CONTRACTOR WHO PERFORMS SERVICES UNDER THIS AGREEMENT WILL BE LIABLE AND RESPONSIBLE FOR ANY DAMAGES AND OR LOSS CAUSED BY ITS OWN ACTIONS. IN THE EVENT OF SUCH LOSS OR DAMAGE, COMPANY AGREES TO PROVIDE CITY WITH A COPY OF SUCH AGREEMENT WITH THE RESPECTIVE SUBCONTRACTOR OR INDEPENDENT CONTRACTOR. Agreement between CFW and North Tarrant Infrastructure, LLC For use of police vehicles to provide traffic control services for the 1-35 Reconstruction Project Page 2 of 9 Execution Copy 4 COMPANY AGREES TO DEFEND, INDEMNIFY, AND HOLD THE CITY, ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES HARMLESS AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, REASONABLE COSTS AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO COMPANY'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY (INCLUDING DEATH) THAT MAY RELATE TO, ARISE OUT OF, OR BE OCCASIONED BY (1) COMPANY'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (II) ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL MISCONDUCT OF COMPANY, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, INDEPENDENT CONTRACTORS (EXCEPT OFF -DUTY POLICE OFFICERS), OR SUBCONTRACTORS RELATED TO THE PERFORMANCE OF THIS AGREEMENT. NOTHING HEREIN SHALL OBLIGATE THE COMPANY TO INDEMNIFY THE CITY FOR THE NEGLIGENT ACTS OR OMISSIONS OF THE CITY, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES AND INDEPENDENT CONTRACTORS, NOR SHALL IT BE CONSTRUED AS A WAIVER OF THE CITY'S GOVERNMENTAL IMMUNITY AS FURTHER PROVIDED BY THE LAWS OF TEXAS. FURTHERMORE, NOTHING HEREIN SHALL OBLIGATE THE COMPANY TO DEFEND AND/OR INDEMNIFY ANY OFF -DUTY POLICE OFFICER. 7. Insurance. Unless waived by the City, during the term of this Agreement, Company shall procure and maintain at all times, in full force and effect, a policy or policies of insurance that provide the specific coverage set forth in this Section 7 as well as any and all other public risks related to Company's performance of its obligations under this Agreement. Company shall specifically obtain the following types of insurance at the following limits: • Commercial General Liability (CGL) $1,000,000 each occurrence $2,000,000 aggregate limit Coverage shall include but not be limited to the following: premises/operations, independent contractors, products/completed operations, personal injury, and contractual liability. Insurance shall be provided on an occurrence basis, and as comprehensive as the current Insurance Services Office (ISO) policy. This insurance shall apply as primary insurance with respect to any other insurance or self-insurance programs afforded to the CITY. The Commercial General Liability policy, shall have no exclusions by endorsements that would alter of nullify premises/operations, products/completed operations, contractual, personal injury, or advertising injury, which are normally contained with the policy, unless the CITY approves such exclusions in writing. • Workers' Compensation Statutory limits Employer's liability $100,000 each accident/occurrence $100,000 Disease - each employee $500,000 Disease - policy limit Agreement between CFW and North Tarrant Infrastructure, LLC For use of police vehicles to provide traffic control services for the 1-35 Reconstruction Project Page 3 of 9 Execution Copy Workers' Compensation and Employers' Liability coverage with limits consistent with statutory benefits outlined in the Texas Workers' Compensation Act (Art. 8308 — 1.01 et seq. Tex. Rev. Civ. Stat.), and minimum policy limits for Employers' Liability of $100,000 each accident/occurrence, $500,000 bodily injury disease policy limit and $100,000 per disease per employee. • Automobile Liability - The City hereby agrees to waive any requirement for Automobile Liability coverage under this Agreement. Company shall promptly provide the City with certificates of insurance that verify Company's compliance with the insurance requirements of this Agreement. The City's Risk Manager shall have the right to review and evaluate Company's insurance coverage and to make reasonable requests or revisions pertaining to the types and limits of that coverage. Company shall comply which such requests or revisions as a condition precedent to the effectiveness of this Agreement. 8. Assignment. Company shall not assign or subcontract all or any part of its rights, privileges or duties under this Agreement, and any attempted assignment or subcontract of same shall be void and constitute a breach of this Agreement. 9. Compliance with Law. Company, its officers, agents, employees, independent contractors, and subcontractors, shall abide by and comply with all laws, federal, state and local, including all ordinances, rules and regulations of City. It is agreed and understood that, if City calls to the attention of Company any such violation on the part of Company or any of its officers, agents, employees or subcontractors, then Company shall immediately desist from and correct such violation. 10. Non -Discrimination. Company, in the execution, performance or attempted performance of this Agreement, will not discriminate against any person or persons because of disability, age, familial status, sex, race, religion, color or national origin, nor will Company permit its officers, agents, employees, independent contractors, or subcontractors to engage in such discrimination. 11. Fiscal Funding. In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any services to be provided hereunder, City will notify Company of such occurrence and this Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds shall have been appropriated. 12. Entire Agreement. This written instrument constitutes the entire agreement by the parties hereto concerning the work and services to be performed hereunder, and any prior or contemporaneous, oral or written agreement, which purports to vary from the terms hereof shall be void. 13. Venue and Jurisdiction. Should any action, whether real or asserted, at law or in equity, arise out of the execution, performance, attempted performance of this Agreement, venue for said action shall lie in Tarrant County, Texas. Agreement between CFW and North Tarrant Infrastructure, LLC For use of police vehicles to provide traffic control services for the I-35 Reconstruction Project Page 4 of 9 Execution Copy 14. Notices. Notices to be provided hereunder shall be sufficient if forwarded to the other party by hand -delivery or via U.S. Postal Service certified mail, postage prepaid, to the address of the other party shown below: 1. CITY: Assistant City Manager for the Police Department City Manager's Office City of Fort Worth 1000 Throckmorton Street Fort Worth, TX 76102 Copies To: Contract Administrator Fort Worth Police Department 350 W. Belknap Fort Worth, TX 76102 Police Legal Advisor Law Department 1000 Throckmorton Street Fort Worth, TX 76102 2. COMPANY: North Tarrant Infrastructure, LLC 9303 New Trails Drive, Suite 200, The Woodlands, TX 77381 Copy To: Nathan Graham, Legal Counsel North Tarrant Infrastructure, LLC 4282 North Freeway Fort Worth, Texas 76137 15. Non -Waiver. The failure of City or Company to insist upon the performance of any term or provision of this Agreement or to exercise any right herein conferred shall not be construed as a waiver or relinquishment to any extent of City's or Company's right to assert or rely upon any such term or right on any future occasion. 16. Disclosure of Conflicts. Company hereby warrants to the City that Company has made full disclosure in writing of any existing or potential conflicts of interest related to Company's services and proposed services with respect to the Project. In the event that any conflicts of interest arise after this Agreement becomes effective, Company hereby agrees immediately to make full disclosure to the City in writing. 17. Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. Agreement between CFW and North Tarrant Infrastructure, LLC For use of police vehicles to provide traffic control services for the I-35 Reconstruction Project Page 5 of 9 Execution Copy 18. Force Maieure. If either Party is unable, either in whole or part, to fulfill its obligations under this Agreement due to acts of God; strikes, lockouts, or other industrial disturbances; acts of public enemies; wars; blockades; insurrections; riots; epidemics; public health crises; earthquakes; fires; floods; restraints or prohibitions by any court, board, department, commission, or agency of the United States or of any state; declaration of a state of disaster or of emergency by the federal, state, county, or City government in accordance with applicable law; issuance of a Level Orange or Level Red Alert by the United States Department of Homeland Security; any arrests and restraints; civil disturbances; or explosions; or some other reason beyond the Party's reasonable control (collectively, "Force Majeure Event"), the obligations so affected by such Force Majeure Event will be suspended only during the continuance of such event and neither party shall be held liable for any delay or omission in performance due to such force majeure event. 19. Headings not Controlling. The paragraph headings contained herein are for the convenience in reference and are not intended to define or limit the scope of any provision of this Contract. 20. Contract Construction. The Parties acknowledge that each Party and its counsel have reviewed and revised this Agreement and that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or exhibits hereto. 21. Right to Audit. Company agrees that City shall, until the expiration of three (3) years after final payment under this Agreement, have access to and the right to examine any directly pertinent books, documents, papers and records of Company involving transactions relating to this Agreement. Company agrees that the City shall have access during normal working hours to all necessary Company facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. The City shall give Company reasonable advance notice of intended audits. In the event City requires access to any of Company's subcontractor's or independent contractor's records to determine compliance with this Agreement, Company shall work with its respective subcontractor or independent contractor to provide the necessary records to the City in a reasonable time. 22. No Third -Party Beneficiaries. The provisions and conditions of this Agreement are solely for the benefit of the City and Company and are not intended to create any rights, contractual or otherwise, to any other person or entity. 23. Applicable Law. This Agreement shall be construed under and in accordance with Texas law. 24. Counterparts. This Agreement may be executed in one or more counterparts and each counterpart shall, for all purposes, be deemed an original, but all such counterparts shall together constitute but one and the same instrument. 25. Breach/Termination/Opportunity to Cure. If either Party commits a material breach of this Agreement, the non -breaching Party must give written notice to the breaching Party that describes the breach in reasonable detail. The breaching Party must commence curing such breach within Agreement between CFW and North Tarrant Infrastructure, LLC For use of police vehicles to provide traffic control services for the I-35 Reconstruction Project Page 6 of 9 Execution Copy fourteen (14) calendar days after the time the breaching Party receives such written notice and complete the cure within fourteen (14) calendar days from the date of commencement of the cure. If the breaching Party does not substantially cure such breach within the stated period of time, the non -breaching Party may, in its sole discretion, and without prejudice to any other right under this Agreement, law, or equity, terminate this Agreement by giving written notice to the breaching Party. 26. Amendment. No amendment, modification, or alteration of the terms of this Agreement shall be binding unless the same is in writing, dated subsequent to the date hereof, and duly executed by the parties hereto. 27. Signature Authority. The person signing this agreement hereby warrants that he/she has the legal authority to execute this agreement on behalf of the respective party, and that such binding authority has been granted by proper order, resolution, ordinance or other authorization of the entity. This Agreement, and any amendment(s) hereto, may be executed by any authorized representative of Consultant whose name, title and signature is affixed on the Verification of Signature Authority Form, which is attached hereto as Exhibit "A" and incorporated herein by reference. Each party is fully entitled to rely on these warranties and representations in entering into this Agreement or any amendment hereto. 28. Governmental Powers. Both Parties agree and understand that the City does not waive or surrender any of its governmental powers by execution of this Agreement. 29. Texas Public Information Act. Company understands and agrees that the City is subject to the Texas Public Information Act. Company, for itself, its officers, agents, and employees, further agrees that it shall treat all information provided to it by the City as confidential and shall not disclose any such information to any third party without the prior written approval of the City. Company further agrees that City shall have access to anything that is deemed public information held in the possession of Company that City may be obligated by law to provide to the public. IN WITNESS WHEREOF, the parties hereto have executed this agreement in multiples in Fort Worth, Tarrant County, Texas, on this the day of , 2014. CITY OF FORT WORTH: B Charles W. Danie s sistant City Manager Date: 67! d,3. /4— NORTHTJ • NT INFRAST ' TURE By: Date: Agreement between CFW and North Tarrant Infrastructure, LLC For use of police vehicles to provide traffic control services for the I-35 Reconstruction Project aro Gomez-Muro Chief Executive Officer a (NI 2clY Page 7 of 9 Execution Copy APPROVAL RECOMMENDED: By: _enearsa L4,-Thansi-449-& 4411/4 Jeffrey .Halstead Chief of Police APPROVED AS TO FORM AND LEGALITY: Nak1/2) Maleshia B. Farmer Sr. Assistant City Attorney Date: ATT Mary Ka er, • it� ' e E. 6-tar Contract Authorization: M&C: C-26815 Date Approved: June 3, 2014 Agreement between CFW and North Tarrant Infrastructure, LLC For use of police vehicles to provide traffic control services for the I-35 Reconstruction Project Page 8 of 9 Execution Copy Date: EXHIBIT A VERIFICATION OF SIGNATURE AUTHORITY Full Legal Name of Company: Legal Address: Services to be provided: North Tarrant Infrastructure, LLC 9303 New Trails Drive, Suite 200, The Woodlands, TX 77381 Use of marked police vehicles to provide traffic control services for the I-35 reconstruction project Execution of this Signature Verification Form ("Form") hereby certifies that the following individuals and/or positions have the authority to legally bind the Company and to execute any agreement, amendment or change order on behalf of Company. Such binding authority has been granted by proper order, resolution, ordinance or other authorization of Company. The City is fully entitled to rely on the warranty and representation set forth in this Form in entering into any agreement or amendment with Company. Company will submit an updated Form within ten (10) business days if there are any changes to the signatory authority. The City is entitled to rely on any current executed Form until it receives a revised Form that has been properly executed by the Company. 1. Name: Position: Signature Name: Signature of L ;O Clii100/ Agreement between CFW and North Tarrant Infrastructure, LLC For use of police vehicles to provide traffic control services for the I-35 Reconstruction Project Page 9 of 9 Execution Copy M&C Review Page 1 of 2 DATE CODE: SUBJECT: U CIL Official site of the City of Fort Worth, Texas FORT WORT!! COUNCIL ACTION: Approved on 6/3/2014 - Ordinance No. 21268-06-2014 6/3/2014 REFERENCE NO.: **C-26815 C TYPE: CONSENT LOG NAME: 35TRAFFIC CONTROI SERVICES PUBLIC NO HEARING: Authorize Execution of an Agreement with North Tarrant Infrastructure, LLC, for the Use City of Fort Worth Marked Police Vehicles to be Used by Off -Duty Officers Providing Trafi Control Services for the I-35W Reconstruction Project, Find That Participation in this Project Serves a Public Purpose, Find That Adequate Controls are in Place to Carry Out the Public Purpose and Adopt Appropriation Ordinance (COUNCIL DISTRICTS 2, 4, 7, 8 and 9) RECOMMENDATION: It is recommended that the City Council: 1 Authorize the execution of an Agreement with North Tarrant Infrastructure, LLC, for the use of Cit of Fort Worth marked police vehicles to be used by off -duty officers providing traffic control services for the I-35W Reconstruction Project; 2. Find that the City's participation in this Project by allowing the use of marked police vehicles serves a public purpose; 3. Find that adequate controls are in place to ensure that the public purpose is carried out; and 4 Adopt the attached supplemental appropriation ordinance increasing estimated receipts and appropriations in the Crime Control Prevention District fund in the amount of $115,872.00 and increasing estimated receipts and appropriations in the General Fund in the amount of $47,328.00. DISCUSSION: North Tarrant Infrastructure, LLC (NTI), has requested the assistance of the Fort Worth Police Department (FWPD) to use off -duty police officers in marked police vehicles to provide traffic control services on an as needed basis during the course of the reconstruction of the portion of the I-35W reconstruction project between 1-30 and the I-35W/1-820 interchange. NTI will compensate the off - duty officers directly and will also compensate the City of Fort Worth (City) for a portion of the costs associated with using marked police vehicles. The cost of operating a marked police vehicle is calculated at $11.90 per hour, including all equipment gasoline, maintenance and wear & tear. NTI has offered to reimburse the City at a rate of $5.00 per hour per vehicle. This amount is consistent with the amount NTI reimburses other surrounding jurisdictions for similar services on construction related projects The estimated annual revenue to be generated by providing this service is approximately $163,200.00, which will be split between the General Fund and the Crime Control Prevention District Fund in accordance with the expenditures incurred. The estimated annual cost to the City for non -reimbursed expenses is approximately $182,784 00. NTI will not be providing any insurance on the use of the vehicles; therefore, the City will also be covering any associated costs for damage to the vehicles. Although the reimbursement being offered by NTI does not cover the full operating cost, FWPD recommends that the City Council find there is a public benefit to allowing the use of marked police http://apps.cfwnet.org/council packet/mc review.asp7ID=18896&councildate=6/3/2014 6/27/2014 M&C Review Page 2 of 2 vehicles for this project and that adequate controls are in place to make sure the public purpose is carried out Having off -duty FWPD officers provide traffic control services in marked police vehicles will help keep a major infrastructure project that is a priority to transportation in the City safe and orderly. The Agreement between the City and NTI will serve as the control to make sure the public purpose is carried out. The term of the Agreement shall be for one year beginning upon execution. The Agreement shall have four automatic renewals of one year each, unless either party terminates upon written notice to the other party prior to the renewal term. The Agreement is anticipated to last through project completion, which is estimated to be in 2018. FISCAL INFORMATION/CERTIFICATION: The Financial Management Services Director certifies that upon approval of the above recommendations and adoption of the attached supplemental appropriation ordinances, funds will b available in the current operating budget as appropriated, of the Crime Control and Prevention District Fund and the General Fund The Police Department will be responsible for the collection an( deposit of funds. TO Fund/Account/Centers 21 GR79 481120 0351000 $115.872.00 3) GG01 481120 0357200 $47.328.00 FROM Fund/Account/Centers Submitted for City Manager's Office bv: Charles Daniels (6199) Originating Department Head: Jeffrey W. Halstead (4231) Additional Information Contact: Aya Ealy (4239) ATTACHMENTS 35 TRAFFIC CONTROL SERVICES A014.doc http://apps.cfwnet.org/council_packet/mc_review.asp?ID=1 8 8 96&councildate=6/3/2 0 14 6/27/2014