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HomeMy WebLinkAboutContract 43437 (2)STATE OF TEXAS KNOW ALL MEN BY THESE PRESENTS COUNTY OF TARRANT CITY SECRETARY 4/°q3 CONTRACT Na THIS AGREEMENT is made and entered by and between the City of Fort Worth, Texas, a municipal corporation situated in Tarrant County, Texas, hereinafter called "CITY", acting herein by and through its duly authorized Assistant City Manager, and Kinsman and Associates, hereinafter called "ENGINEER" for the purpose of providing professional services for the third -party independent review of guaranteed savings from previous performance contracts between the City of Fort Worth and Johnson Controls, Inc. (JCI) for Phases I, II, III, IV, and VIb. WITNESSETH That for and in consideration of the mutual covenants and agreements herein contained, the parties hereto do hereby covenant and agree as follows: SECTION I: SERVICES OF THE ENGINEER 1. CITY hereby contracts with ENGINEER as an independent contractor, and ENGINEER hereby agrees to perform, within the professional standards normally accepted in the State of Texas, the following professional services: 1.1. Review of contract documents for each specified phase identifying the Measurement and Verification Plan used for each project, meters read, and calculation methods for determining savings. 1.2. Verification of methods used, data sources, and calculations performed. 1.3. Comparisons of calculated versus guaranteed savings. 1.4. Verification of reports submitted by Johnson Controls, Inc. to the City of Fort Worth in each phase. 1.5. Report of findings. 2. Project scope of work for the above professional services, is defined by Phases I, II, III, IV, and VIb of JCls Energy Savings Performance Contract (ESPC) with CITY, dated between 25th September 2003 and 15th February 2011. 3. CITY facilities count and department distribution for the above professional services, as defined by Phases I, II, III, IV, and VIb ofJCIs ESPC, is as follows: 3.1. ESPC Phase I (4-facilities) 3.1.1. Three (3) — Transportation & Public Works 3.1.2. One (1) — Aviation 3.2. ESPC Phase II (4-facilities) 3.2.1. One (1) — Transportation & Public Works 3.2.2. Two (2) — Public Events 3.2.3. One (1) — Library 3.3. ESPC Phase III (3-facilities) 3.3.1. Two (2) — Public Events 3.3.2. One (1) — Library FACIAL RECO WIT SECRETARY I '© "O sl99TN 7/13/2012 y Page 1 of 8 3.4. ESPC Phase IV (91-facilities) 3.4.1. One (1) — IT Solutions 3 4 2 Three (3) — Transportation & Public Works 3.4.3. Two (2) — Code Compliance 3.4.4. Five (5) — Police 3.4.5. Forty (40) — Fire 3.4.6. Twenty -Nine (29) — Parks & Community Services 3.4.7. Eleven (11) — Library 3.5. ESPC Phase VI-b (97-facilities) 3.5.1. One (1) — IT Solutions 3 5 2 Four (4) — Transportation & Public Works 3.5.3. Two (2) — Code Compliance 3.5.4. Two (2) — Public Events 3.5.5. Five (5) — Police 3.5.6. Forty (40) — Fire 3.5.7. One (1) — Aviation 3.5.8. Thirty (30) — Parks & Community Services 3.5.9. Twelve (12) — Library SECTION IP PERSONNEL 1. The following personnel will be assigned to this Project: 1.1. Samuel Gunderson, Conservation Specialist, City of Fort Worth 1.2. Sam Steele, Administrator of Sustainability Programs, City of Fort Worth 1.3. Frank Kinsman, President, Kinsman & Associates 1.4. Charles Clark, Vice President, Kinsman & Associates 1.5. Thomas Congdon, Engineer in Training, Kinsman & Associates 2. Neither party may change key personnel without agreement by the other party. SECTION III• CHARACTER & EXTENT OF ENGINEERS SERVICES 1. Perform services as outlmed in ENGINEER's letter dated 12 July 2012, which is attached to and made a part of this Agreement. ENGINEER shall consult with CITY to clarify and define CITY's requirements relative to the assignments and review available data. 2. The schedule for the Project is: 2.1. Complete all services within 30-calendar days of receipt of the referenced contract documents, JCI reports, and other supporting documentation ENGINEER with contact the CITY if project is inactive for more than three business days because of delayed response from third party. 3. ENGINEER agrees to commit the personnel to each assignment as necessary in order to complete the assignment in an expeditious manner. 4. ENGINEER shall advise CITY as to the necessity of CITY's providing or obtaining from others services and data required in connection with the Assignment at CITY's cost and expense (which services and data ENGINEER is not to provide hereunder but on which ENGINEER may rely in performing services hereunder), and act as CITY's representative in connection with any such services of others. 5. ENGINEER shall pay for the printing of documents as a part of the proposed fee. 7/19/2012 Page 2 of 8 SECTION IV: SPECIAL SERVICES OF ENGINEER 1. If authorized in writing by CITY, ENGINEER shall furnish or obtain from others Special Services necessary to complete the assignments at a cost stated by the Facility Manager by letter. SECTION V: COMPENSATION TO ENGINEER 1. The total compensation for all of the assignments to be performed by ENGINEER as described in SECTION III, CHARACTER & EXTENT of ENGINEER S SERVICES hereof shall be a NTE amount of $16,000 00 based on billing rates shown in Attachment A dated 12 July 2012. SECTION VI. METHOD OF PAYMENT 1. ENGINEER shall be paid not more frequently than once per month on the basis of statements prepared from the books and records of account of ENGINEER, such statements to be verified as to accuracy and compliance with the terms of this Agreement by an officer of ENGINEER. Payment according to statements will be subject to certification by the Director Transportation and Public Works Department or his duly authorized representative that such work has been performed. The above charges are on the basis of prompt payment of bills rendered and continuous progress of the work on the Assignment until completion If CITY fails to make any agreed to payment due ENGINEER for services and out-of-pocket expenses within sixty -days after approval of ENGINEER's statement thereof, ENGINEER may after giving seven -days' written notice to CITY suspend services under this Agreement until ENGINEER has been paid in full all amounts due for services actually performed and out-of-pocket expenses actually incurred SECTION VII: CITY RESPONSIBILITIES 1. Provide criteria and information as to CITY's requirements and designate a person with authority to act on CITY's behalf on all matters concerning the Assignment. 2. Assist ENGINEER in obtaining existing studies reports and other available data and services of others pertinent to the Assignment and in obtaining additional reports and data as required. 3. Upon reasonable notice arrange for access to and make all provisions for ENGINEER to enter upon public and private property as may be required for ENGINEER to perform services hereunder. 4. Designate in writing qualified persons who will act as CITY's representatives with respect to the Assignment for the purposes of transmitting instructions receiving information, interpreting and defming CITY's policies and decisions with respect to ENGINEER's services. 5. Review all reports, recommendations and other documents and provide written decisions pertaining thereto within a reasonable time 6. Upon reasonable notice provide labor and safety equipment to expose structural elements, to make temporary repairs, and to operate mechanical and electrical systems as required by ENGINEER in the services. 7. Provide such legal, accounting, insurance and other counseling services to CITY as may be required for the Assignment. 8. Bear all costs incident to compliance with this Section. 7/13/2012 Page 3 of 8 SECTION VIII: TERMINATION 1. CITY may terminate this Agreement at any time for convenience or for any cause by notice in writing to ENGINEER. Upon receipt of such notice, ENGINEER shall immediately discontinue all services and work and the placing of all orders or the entering into Contracts for supplies, assistance, facilities and materials in connection with the performance of this Agreement and shall proceed to cancel promptly all existing contracts insofar as they are chargeable to this Agreement. 2. If CITY terminates this Agreement under the foregoing paragraph, CITY shall pay ENGINEER for services performed in accordance herewith prior to such termination, less such payments having been previously made. Such payment shall be based upon the work completed up to the date of termination of the Agreement in accordance with the method of compensation prescribed in Sections V and VI hereof. ENGINEER shall also be compensated for all termination -related expenses such as meeting attendance, document reproduction, transfer of records 3. Upon early termination or conclusion of this Agreement, ENGINEER shall provide CITY reproducible copies of all completed or partially completed engineering documents prepared under this Agreement that shall become the property of CITY and may be used by CITY in any manner it desires. ENGINEER shall not be liable for the use of such materials for any project other than the project described in this Agreement. SECTION IX: INDEMNITY AND INSURANCE 1. Approval by CITY of contract documents shall not constitute or be deemed to be a release of the responsibility and liability of ENGINEER, its officers, agents, employees and Subconsultants, for the accuracy and competency of the services performed under this Agreement, including but not limited to surveys, location of subsurface investigations, designs, working drawings and specifications and other engineering documents. 2. Such approval shall not be deemed to be an assumption of such responsibility and liability by CITY for any negligent act, error or omission in the conduct or preparation of the subsurface investigations, surveys, designs, working drawings and specifications and other documents by ENGINEER, its officers, agents, employees and Subconsultants, it being the intent of the parties that approval by CITY signifies CITY's approval of only the general design concept of the improvements to be constructed. 3. In this connection ENGINEER shall indemnify and hold CITY and all its officers agents, servants and employees harmless from any loss damage, liability or expenses on account of damage to property and injuries including death to all persons including but not limited to officers, agents, or employees of ENGINEER or Subcontractor, and all other persons performing any part of the work and improvements which may arise out of any negligent act, error or omission in the performance of ENGINEER's professional services In no event shall ENGINEER be liable for consequential damages. 4. ENGINEER shall defend at its own expense any suits or other proceedings brought against CITY, its officers agents, servants and employees, or any of them on account thereof, and shall pay all expenses and satisfy all judgments which may be incurred by or rendered against them arising out or the indemnification provided and except, however, that this indemnification provision shall not be construed as requiring ENGINEER to indemnify or hold CITY or any of its officers, agents servants or employees harmless from any loss, damages, liability or expense, on account of damage to property or injuries to person caused by defects or deficiencies in design criteria and information furnished ENGINEER by CITY, or any deviation in construction from ENGINEER's designs working drawings specifications or other documents. 7/13/2012 Page 4 of 8 5. Without limiting the above indemnity, ENGINEER shall maintain a policy of comprehensive general liability insurance coverage with carriers acceptable to CITY in at least the following amounts: Commercial General Liability: $1,000,000 Per Occurrence $2,000,000 Aggregate Limit Workers Compensation: Coverage A: Coverage B: Automobile Liability: Professional Liability Insurance Errors and Omissions: Statutory limits Employers Liability Insurance $100,000 Each Accident/Each Occurrence $100,000 Disease — per each employee $500,000 Bodily Injury/Disease — Policy Limit $1,000,000 each accident on a combined single basis OR $250,000 Property Damage $500,000 Bodily Injury per person per occurrence $1,000,000 $2,000,000 Per occurrence Project aggregate 6. ENGINEER shall furnish CITY a Certificate of Insurance in at least the above amounts. Certificate shall contain a provision that such insurance cannot be canceled without 30-days prior written notice to CITY. CITY reserves the right to revise insurance requirements specified in this agreement to the best interests of CITY. 7. General Insurance Requirements 7.1. Commercial General Liability coverage shall be endorsed to name CITY an Additional Insured thereon, as its interests may appear. The term CITY shall include its employees, officers, officials agents, and volunteers as respects the contracted services. 7 2 Certificate(s) of insurance shall document that insurance coverage specified are provided under applicable policies documented thereon. 7 3 Any failure on part of CITY to request required insurance documentation shall not constitute a waiver of the insurance requirements 7.4. A minimum of forty-five days notice of cancellation, non -renewal or material change in coverage shall be provided to CITY. A ten (10) days notice shall be acceptable in the event of non-payment of premium. Such terms shall be endorsed onto ENGINEER's msurance policies Notice shall be sent to the Facilities Manager Transportation and Public Works Department 1000 Throckmorton, Fort Worth, TX 76102. 7.5. CITY shall not be responsible for the direct payment of any insurance premiums required by this agreement. It is understood that insurance cost is an allowable component of ENGINEER's general overhead. 7.6. CITY reserves the right to revise insurance requirements specified in this agreement according to the best interests of CITY. 7.7. Insurers for all policies must be authorized to do business in the state of Texas or be otherwise approved by CITY; and, such insurers shall be acceptable to CITY in terms of their financial strength and solvency. 7/13/2012 Page 5 of 8 7.8. Deductible limits, or self -insured retentions, affecting insurance required herein may be acceptable to CITY at its sole discretion; and, in lieu of traditional insurance, any alternative coverage maintained through insurance pools or risk retention groups must be also approved. Dedicated financial resources or letters of credit may also be acceptable to CITY. 7.9. CITY shall be entitled, upon its request and without incurring expense, to review ENGINEER's insurance policies including endorsements thereto and, at CITY's discretion, ENGINEER may be required to provide proof of insurance premium payments. 7.10. CITY shall not be responsible for the direct payment of any insurance premiums required by this agreement. It is understood that insurance cost is an allowable component of ENGINEER's indirect overhead. 7.11. All insurance, except for the Professional Liability insurance policy, shall be written on an occurrence basis. 7.12. The Professional Liability Policy shall be written on a "claims made' and shall be in effect for the duration of this agreement and for 12 months following ENGINEER's issuance of the of a Final Report. ENGINEER'S current insurer shall list CITY as a certificate holder for a period of two (2) years following the delivery of a Final Report to the CITY by the ENGINEER (see SECTION III above for defined deliverables). CITY shall be notified at least 30-days prior to cancellation or substantial change in coverage. 7.13. Subconsultants to ENGINEER shall be required by ENGINEER to maintain the same or reasonably equivalent insurance coverage, except for Professional Liability Insurance, as required for ENGINEER. ENGINEER shall provide CITY with documentation thereof on certificates of insurance The ENGINEER shall assure that Subconsultants provide acceptable and appropriate levels of Professional Liability coverage or that ENGINEER's coverage provides coverage for the work of the Subconsultant. Notwithstanding anything to the contrary contained herein, in the event a subconsultant's insurance coverage is canceled or terminated, such cancellation or termination shall not constitute a breach by ENGINEER of the Agreement SECTION X: INDEMNITY PERTAINING TO HAZARDOUS MATERIALS 1. CITY acknowledges ENGINEER will perform part of the work at CITY's facilities that may contain hazardous materials, including asbestos containing materials, or conditions and that ENGINEER had no prior role m the generation, treatment, storage, or disposition of such materials. In consideration of the associated risks that may give rise to claims by third parties or employees of CITY, CITY agrees in so far as permitted by law, to indemnify ENGINEER from any and all losses, damages, claims, or actions brought by third party or employees of CITY against ENGINEER or ENGINEER's employees, agents, officers or directors, in any way arising out of the presence of hazardous materials or conditions at CITY s facilities, except for claims shown by final judgment to arise out of the sole negligence of ENGINEER. CITY shall defend at its own expense any suits of other proceedings brought against ENGINEER and its officers, agents, servants and employees or any of them on account thereof Nothing herein shall be construed so as to require CITY to levy or assess any tax. 2 In connection with hazardous waste including petroleum products CITY agrees to the maximum extent permitted by law to defend, hold harmless and indemnify ENGINEER from and against any and all claims and liabilities resulting from CITY's violation of any federal state or local statute, regulation or ordinance relating to the disposal of hazardous substances or constituents. Nothing herein shall be construed so as to require CITY to levy or assess any tax. 3. The requirements contained in this Section shall not apply if ENGINEER introduces the hazardous materials or conditions. 7/13/2012 Page 6 of 8 SECTION XI: RIGHT TO AUDIT 1. ENGINEER 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 ENGINEER involving transactions relating to this Agreement ENGINEER agrees that CITY shall have access during normal working hours to all necessary ENGINEER facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. CITY shall give ENGINEER reasonable advance notice of intended audits. 2. ENGINEER further agrees to include in all its subcontracts hereunder a provision to the effect that the subconsultant agrees that CITY shall, until the expiration of three (3) years after final payment under the subcontract, have access to and the right to examine any directly pertinent books, documents, papers and records of such subconsultant, involving transactions to the subcontract, and further, that CITY shall have access during normal working hours to all subconsultant facilities, and shall be provided adequate and appropriate work space, in order to conduct audits in compliance with the provisions of this article. CITY shall give subconsultant reasonable advance notice of intended audits. 3. ENGINEER and Subconsultants agree to photocopy such project -related documents as may be requested by CITY. CITY agrees to reimburse ENGINEER and Subconsultant for the costs of copies at the rate published in the Texas Administrative Code SECTION XII: SUCCESSORS AND ASSIGNS 1. CITY and ENGINEER each bind themselves, their successors and assigns, to the other party to this Agreement and to the successors and assigns of each other party in respect to all covenants of this Agreement. SECTION XIII: ASSIGNMENT 1. Neither party hereto shall assign, sublet or transfer its interest herein without prior written consent of the other party, and any attempted assignment, sublease or transfer of all or any part hereof without such prior written consent shall be void. SECTION XIV• INDEPENDENT ENGINEER 1. ENGINEER shall perform all work and services hereunder as an independent Engineer, and not as an officer, agent, servant or employee of CITY. ENGINEER shall have exclusive control of, and the exclusive right to control the details of the work performed hereunder, and all persons performing same, and shall be solely responsible for the acts and omissions of its officers, agents, employees and Subconsultants Nothing herein shall be construed as creating a partnership or joint venture between CITY and ENGINEER, its officers, agents, employees and Subconsultants, and doctrine of respondent superior has no application as between CITY and ENGINEER. SECTION XVI: OBSERVE AND COMPLY 1. If permitting authorities require design changes so as to comply with published design criteria and/or current engineering practice standards which ENGINEER should have been aware of at the time this Agreement was executed, ENGINEER shall revise plans and specifications, as required, at its own cost and expense. However if design changes are required due to the changes in the permitting authorities published design criteria and/or practice standards criteria which are published after the date of this Agreement which ENGINEER could not have been reasonably aware of, ENGINEER shall notify CITY of such changes and an adjustment in compensation will be made through an amendment to this Agreement. 7/13/2012 Page 7 of 8 SECTION XVII: VENUE 1. Venue of any suit or cause of action under this Agreement shall lie in Tarrant County, Texas. IN TESTIMONY THEREOF, CITY has caused this instrument to be signed in triplicate in its name and on its behalf, by its City Manager and attested by its City Secretary, with the Corporate Seal affixed; and ENGINEER has also properly executed this instrument in triplicate copies, each of which is deemed an original. EXECUTED IN THE CITY OF FORT WORTH, TEXAS, THISe7M?lay o9k� . C.E., By: cZttmJ APPROVED: Frank E. Kinsman Principal's Name Kinsman & Associates, Consulting Engineers Company President Office (President or Vice -President) APPROVAL RECOMMENDED: By: tti Directo ransportation and Publi'Vorks ov APPROVED AS O FORM LEGALITY: By: bii*9 Attorney By: 4-71ainenera- Colu—sat Assistant City Manager vCosh RECORDED: By: Date: City Secretary OFFICIAL RECORD CITY SECRETARY FT. WORTH, TN 7/13/2012 NO M&C REQUIRE Page 8 of 8 ATTACHMENT A K&A Proposal Letter K&A Rate Schedule Certificate of Insurance KINSMAN & ASSOCIATES, Consulting Engineers Systems Analysis and Design July 12, 2012 Mr. Sam Steele, CEM, LEED Conservation Specialist City of Fort Worth 1000 Throckmorton Street, T/PW Fort Worth, TX 76102-6311 Dear Mr Steele: We are hereby proposing to perform a third -party review of guaranteed savings from previous performance contracts between the City of Fort Worth and Johnson Controls, Inc. This will include Phases I, II, III, IV, and VIb. Our third -party review of savings generated in Phases I, II, III, IV, and VIb will include the following steps: 1. Review of contract documents for each specified phase identifying the Measurement and Verification Plan used for each project, meters read, and calculation methods for determining savings. 2. Verification of methods used, data sources, and calculations performed. 3. Comparisons of calculated versus guaranteed savings. 4. Verification of reports submitted by Johnson Controls, Inc. to the City of Fort Worth in each phase. 5. Report of findings. Our proposed fee for this work is a NTE cost of $16,000.00 based on our attached Rate Schedule. If there are any questions regarding this proposal, we will be pleased to respond. Thank you for this opportunity to be of service. Sincerely, Ste Frank E Kinsman President /pt Attachment cc: Mr Sam Gunderson 8533 Ferndale Road • Suite 102 • Dallas, Texas 75238 • Ph. (972) 644-7876 • Fax: (972) 644-3355 www.kinsmanengineering.com KINSMAN & ASSOCIATES, Consulting Engineers Systems Analysis and Design CONFIDENTIAL STANDARD RATE SCHEDULE CLASSIFICATION HOURLY RATE Principal $130 Senior Engineer $115 Engineer $90 Junior Engineer $75 Senior Technician/Senior Draftsman/Program Coordinator/ $60 Ft,xecutive Assistant Technician/Draftsman/Technical Administrator $5 0 Administrative Assistant/Sr. Secretary/Junior Technician $40 Secretary $30 Clerk/Receptionist $23 Rates Effective: July 2011 8533 Ferndale Road • Suite 102 • Dallas, Texas 75238 • Ph. (972) 644-7876 • Fax: (972) 644-3355