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HomeMy WebLinkAboutContract 47311 Z CITY SECRETARY COWRACT NO, PROFESSIONAL SERVICES AGREEMENT I..V.�V�rr,l,tal i4 j i1f This PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into by and between the CITY OF FORT WORTH (the "City"), a home rule municipal corporation situated in portions of Tarrant, Denton and Wise Counties, Texas, acting by and through Fernando Costa, its duly authorized Assistant City Manager, and BLACK & VEATCH CORPORATION ("Consultant"), a Texas Corporation and acting by and through John Chevrette, its duly authorized President, each individually referred to as a "party" and collectively referred to as the"parties." All Exhibits attached hereto are incorporated herein and made a part of this Agreement for all purposes. In the event of any conflict between the documents, the terms and conditions of this Professional Services Agreement shall control. 1. SCOPE OF SERVICES. Consultant hereby agrees to provide the City with professional consulting services for the purpose of laboratory benchmarking and pricing review. Benchmarking of Laboratory Services which will consist of the following: Confirmation with City of comparison facilities to be used in benchmarking; Contact and compilation of various comparison rates against the Water Department's Lab Fees; and provide a report, acceptable to the City, of the results of the benchmarking. 2. TERM. This Agreement shall commence on the date it is fully executed ("Effective Date") and shall expire on June 30, 2016, unless terminated earlier in accordance with the provisions of this Agreement. 3. COMPENSATION. The City shall pay Consultant in accordance with the hourly rate of Consultant personnel who perform services under this Agreement in accordance with the provisions of this Agreement and the Payment Schedule attached as Exhibit "A," which is incorporated for all purposes herein; however, total payment made under this Agreement by the City for all services shall not exceed $10,000. Consultant shall not perform any additional services for the City not specified by this Agreement unless the City requests and approves in writing the additional costs for such services. The City shall not be liable for any additional expenses of Consultant not specified by this Agreement unless the City first approves such expenses in writing. 4. TERMINATION. 4.1. Convenience. The City or Consultant may terminate this Agreement at any time and for any reason by providing the other party with 30 days'written notice of termination. 4.2 Non-appropriation of Funds. In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any payments due hereunder, City will notify Consultant 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 the City of any kind whatsoever, except as to the portions Professional Services Agreement Revised August 2015 Black and Veatch Corporation CWFICIAI. RECORD, of the payments herein agreed upon for which funds have been appropriated. 4.3 Duties and Obligations of the Parties. In the event that this Agreement is terminated prior to the Expiration Date, the City shall pay Consultant for services actually rendered up to the effective date of termination and Consultant shall continue to provide the City with services requested by the City and in accordance with this Agreement up to the effective date of termination. Upon termination of this Agreement for any reason, Consultant shall provide the City with copies of all completed or partially completed documents prepared under this Agreement. In the event Consultant has received access to City information or data as a requirement to perform services hereunder, Consultant shall return all City provided data to the City in a machine readable format or other format deemed acceptable to the City. 5. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION. 5.1 Disclosure of Conflicts. Consultant hereby warrants to the City that Consultant has made full disclosure in writing of any existing or potential conflicts of interest related to Consultant's services under this Agreement. In the event that any conflicts of interest arise after the Effective Date of this Agreement, Consultant hereby agrees immediately to make full disclosure to the City in writing. 5.2 Confidential Information. Consultant, for itself and its officers, agents and employees, agrees that it shall treat all information provided to it by the City as confidential and shall not disclose any such information to a third party without the prior written approval of the City. 5.3 Unauthorized Access. Consultant shall store and maintain City Information in a secure manner and shall not allow unauthorized users to access, modify, delete or otherwise corrupt City Information in any way. Consultant shall notify the City immediately if the security or integrity of any City information has been compromised or is believed to have been compromised, in which event, Consultant shall, in good faith, use all commercially reasonable efforts to cooperate with the City in identifying what information has been accessed by unauthorized means and shall fully cooperate with the City to protect such information from further unauthorized disclosure. 6. RIGHT TO AUDIT. Consultant agrees that the City shall, until the expiration of three (3) years after final payment under this contract, or the final conclusion of any audit commenced during the said three years, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of the Consultant involving transactions relating to this Contract at no additional cost to the City. Consultant agrees that the City shall have access during normal working hours to all necessary Consultant facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. The City shall give Consultant reasonable advance notice of intended audits. Consultant further agrees to include in all its subcontractor agreements hereunder a provision to the effect that the subcontractor agrees that the City shall, until expiration of three (3)years after final payment of the subcontract, or the final conclusion of any audit commenced during the said three years have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of such subcontractor involving transactions related to the subcontract, and further that City shall have access during normal working hours to all subcontractor facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this paragraph. City shall give subcontractor reasonable notice of intended audits. 7. INDEPENDENT CONTRACTOR. Professional Services Agreement Revised August 2015 Black and Veatch Corporation 2 It is expressly understood and agreed that Consultant shall operate as an independent contractor as to all rights and privileges and work performed under this agreement, and not as agent, representative or employee of the City. Subject to and in accordance with the conditions and provisions of this Agreement, Consultant shall have the exclusive right to control the details of its operations and activities and be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors and subcontractors. Consultant acknowledges that the doctrine of respondeat superior shall not apply as between the City, its officers, agents, servants and employees, and Consultant, its officers, agents, employees, servants, contractors and subcontractors. Consultant further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Consultant. It is further understood that the City shall in no way be considered a Co- employer or a Joint employer of Consultant or any officers, agents, servants, employees or subcontractors of Consultant. Neither Consultant, nor any officers, agents, servants, employees or subcontractors of Consultant shall be entitled to any employment benefits from the City. Consultant shall be responsible and liable for any and all payment and reporting of taxes on behalf of itself, and any of its officers, agents, servants, employees or subcontractors. 8. LIABILITY AND INDEMNIFICATION. A. LIABILITY - CONSULTANT SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE ANDIOR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF CONSULTANT, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. B. INDEMNIFICATION - CONSULTANT HEREBY COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, FOR EITHER PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO CONSULTANT'S BUSINESS AND ANY RESULTING LOST PROFITS) ANDIOR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OR MALFEASANCE OF CONSULTANT, ITS OFFICERS,AGENTS,SERVANTS OR EMPLOYEES. 9. ASSIGNMENT AND SUBCONTRACTING. Consultant shall not assign or subcontract any of its duties, obligations or rights under this Agreement without the prior written consent of the City. If the City grants consent to an assignment, the assignee shall execute a written agreement with the City and the Consultant under which the assignee agrees to be bound by the duties and obligations of Consultant under this Agreement. The Consultant and Assignee shall be jointly liable for all obligations of the Consultant under this Agreement prior to the effective date of the assignment. If the City grants consent to a subcontract, the subcontractor shall execute a written agreement with the Consultant referencing this Agreement under which the subcontractor shall agree to be bound by the duties and obligations of the Consultant under this Agreement as such duties and obligations may apply. The Consultant shall provide the City with a fully executed copy of any such subcontract. 10. INSURANCE. Consultant shall provide the City with certificate(s) of insurance documenting policies of the following minimum coverage limits that are to be in effect prior to commencement of any work pursuant Professional Services Agreement Revised August 2015 Black and Veatch Corporation 3 to this Agreement: 10.1 Coverage and Limits (a) Commercial General Liability $1,000,000 Each Occurrence $1,000,000 Aggregate (b) Automobile Liability $1,000,000 Each occurrence on a combined single limit basis Coverage shall be on any vehicle used by the Consultant, its employees, agents, representatives in the course of the providing services under this Agreement. "Any vehicle" shall be any vehicle owned, hired and non-owned (c) Worker's Compensation-Statutory limits Employer's liability $100,000 Each accident/occurrence $100,000 Disease-per each employee $500,000 Disease-policy limit This coverage may be written as follows: 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 (d) Professional Liability(Errors& Omissions) $1,000,000 Each Claim Limit $1,000,000 Aggregate Limit Professional Liability coverage may be provided through an endorsement to the Commercial General Liability (CGL) policy, or a separate policy specific to Professional E&O. Either is acceptable if coverage meets all other requirements. Coverage shall be claims-made, and maintained for the duration of the contractual agreement and for two (2) years following completion of services provided. An annual certificate of insurance shall be submitted to the City to evidence coverage. 10.2 General Requirements (a) The commercial general liability and automobile liability policies shall name the City as an additional insured thereon, as its interests may appear. The term City shall include its employees, officers, officials, agents, and volunteers in respect to the contracted services. (b) The workers' compensation policy shall include a Waiver of Subrogation (Right of Recovery) in favor of the City of Fort Worth. (c) A minimum of Thirty (30) days notice of cancellation or reduction in limits of coverage shall be provided to the City. Ten (10) days notice shall be acceptable in the event of non-payment of premium. Notice shall be sent to the Risk Manager, City of Fort Worth, 1000 Throckmorton, Fort Worth, Texas 76102,with copies to the City Attorney at the same address. Professional Services Agreement Revised August 2015 Black and Veatch Corporation 4 (d) The insurers for all policies must be licensed and/or approved to do business in the State of Texas. All insurers must have a minimum rating of A- VII in the current A.M. Best Key Rating Guide, or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below that required, written approval of Risk Management is required. (e) Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement. (f) Certificates of Insurance evidencing that the Consultant has obtained all required insurance shall be delivered to the City prior to Consultant proceeding with any work pursuant to this Agreement. 11. COMPLIANCE WITH LAWS ORDINANCES RULES AND REGULATIONS. Consultant agrees that in the performance of its obligations hereunder, it will comply with all applicable federal, state and local laws, ordinances, rules and regulations and that any work it produces in connection with this agreement will also comply with all applicable federal, state and local laws, ordinances, rules and regulations. If the City notifies Consultant of any violation of such laws, ordinances, rules or regulations, Consultant shall immediately desist from and correct the violation. 12. NON-DISCRIMINATION COVENANT. Consultant, for itself, its personal representatives, assigns, subcontractors and successors in interest, as part of the consideration herein, agrees that in the performance of Consultant's duties and obligations hereunder, it shall not discriminate in the treatment or employment of any individual or group of individuals on any basis prohibited by law. If any claim arises from an alleged violation of this non- discrimination covenant by Consultant, its personal representatives, assigns, subcontractors or successors in interest, Consultant agrees to assume such liability and to indemnify and defend the City and hold the City harmless from such claim. 13. NOTICES. Notices required pursuant to the provisions of this Agreement shall be conclusively determined to have been delivered when (1) hand-delivered to the other party, its agents, employees, servants or representatives, (2) delivered by facsimile with electronic confirmation of the transmission, or (3) received by the other party by United States Mail, registered, return receipt requested, addressed as follows: To the CITY: To Consultant: City of Fort Worth Black&Veatch Corporation Attn: Jesus J. Chapa,Assistant City Manager Attn: John M. Chevette 1000 Throckmorton 8400 Ward Parkway Fort Worth TX 76102-6311 Kansas City, MO 64114 Facsimile: (817) 392-8654 E-mail: ChevretteJM @bv.com With Copy to the City Attorney 1000 Throckmorton Fort Worth TX 76102-6311 14. SOLICITATION OF EMPLOYEES. Neither the City nor Consultant shall, during the term of this agreement and additionally for a period of one year after its termination, solicit for employment or employ, whether as employee or independent Consultant, any person who is or has been employed by the other during the term of this Professional Services Agreement Revised August 2015 Black and Veatch Corporation 5 agreement, without the prior written consent of the person's employer. Notwithstanding the foregoing, this provision shall not apply to an employee of either party who responds to a general solicitation of advertisement of employment by either party. 15. GOVERNMENTAL POWERS/IMMUNITIES It is understood and agreed that by execution of this Agreement, the City does not waive or surrender any of its governmental powers or immunities. 16. NO WAIVER. The failure of the City or Consultant to insist upon the performance of any term or provision of this Agreement or to exercise any right granted herein shall not constitute a waiver of the City's or Consultant's respective right to insist upon appropriate performance or to assert any such right on any future occasion. 17. GOVERNING LAW/VENUE. This Agreement shall be construed in accordance with the laws of the State of Texas. If any action, whether real or asserted, at law or in equity, is brought pursuant to this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. 18. 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. 19. FORCE MAJEURE. The City and Consultant shall exercise their best efforts to meet their respective duties and obligations as set forth in this Agreement, but shall not be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control, including, but not limited to, compliance with any government law, ordinance or regulation, acts of God, acts of the public enemy, fires, strikes, lockouts, natural disasters, wars, riots, material or labor restrictions by any governmental authority, transportation problems and/or any other similar causes. 20. HEADINGS NOT CONTROLLING. Headings and titles used in this Agreement are for reference purposes only, shall not be deemed a part of this Agreement, and are not intended to define or limit the scope of any provision of this Agreement. 21. REVIEW OF COUNSEL. 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. 22. AMENDMENTS. No amendment of this Agreement shall be binding upon a party hereto unless such amendment Professional Services Agreement Revised August 2015 Black and Veatch Corporation 6 is set forth in a written instrument, which is executed by an authorized representative of each party. 23. ENTIRETY OF AGREEMENT. This Agreement, including the schedule of exhibits attached hereto and any documents incorporated herein by reference, contains the entire understanding and agreement between the City and Consultant, their assigns and successors in interest, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. 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 one and the same instrument. 25. WARRANTY OF SERVICES. Consultant warrants that its services will be of a professional quality and conform to generally prevailing industry standards. City must give written notice of any breach of this warranty within thirty (30) days from the date that the services are completed. In such event, at Consultant's option, Consultant shall either (a) use commercially reasonable efforts to re-perform the services in a manner that conforms with the warranty, or (b) refund the fees paid by the City to Consultant for the nonconforming services. 26. 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 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 "D" and incorporate herein by reference. Each party is fully entitled to rely on these warranties and representations in entering into this Agreement or any amendment hereto. 27. OWNERSHIP OF WORK PRODUCT. City shall be the sole and exclusive owner of all reports, work papers, procedures, guides, and documentation, created, published, displayed, and/or produced in conjunction with the services provided under this Agreement, collectively, "Work Product" Further, City shall be the sole and exclusive owner of all copyright, patent, trademark, trade secret and other proprietary rights in and to the Work Product. Ownership of the Work Product shall inure to the benefit of the City from the date of conception, creation or fixation of the Work Product in a tangible medium of expression (whichever occurs first). Each copyrightable aspect of the Work Product shall be considered a "work-made-for-hire" within the meaning of the Copyright Act of 1976, as amended. If and to the extent such Work Product, or any part thereof, is not considered a "work-made-for-hire" within the meaning of the Copyright Act of 1976, as amended, Consultant hereby expressly assigns to City all exclusive right, title and interest in and to the Work Product, and all copies thereof, and in and to the copyright, patent, trademark, trade secret, and all other proprietary rights therein, that the City may have or obtain, without further consideration, free from any claim, lien for balance due, or rights of retention thereto on the part of the City. IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiples this day of , 2015. Professional Services Agreement Revised August 2015 Black and Veatch Corporation 7 ACCEPTED AND AGREED: CITY OF FORT WORTH: BLACK&VEATCH COPORATION By: LZ By: Jesus J. Chapa 4ohn Chevrette Assistant City Manager 'President Date: Date: August 13, 2015 WIT ATTE By: po By: M I M :e uk "ma Name: Michelle D. D C V k C Y4, e etary- V Reviewed by Legal(Grimaldi)August 6,2015. M Reviewed by PM(R.Campbell)e-mail August 4, 5 APPROVED AS TO FORM AND LEGALITY: Chri!§fa R. Lopez-Rey Ids Senior Assistant City Attorney FNO M&C REQ�ULIREDJ OFFICIAL.RE(,",',ORD CITY SECRE"I(AXItY FT. TT,,xY Professional Services Agreement Revised August 2015 Black and Veatch Corporation 8 Exhibit A REQUEST FOR SERVICES CONSULTING SERVICES AGREEMENT Between The City of Fort Worth, TX ("Client") And Black& Veatch Corporation ("Consultant") This Exhibit is attached to and made a part of that certain Agreement dated August 4, 2015 by and between the City of Fort Worth, Texas, a municipal corporation situated in Tarrant, Denton and Wise counties, Texas (hereinafter referred to as "Fort Worth"" and Black & Veatch Corporation, a Delaware Corporation, (hereinafter referred to as 'Black & Veatch. The Fort Worth Water Department (Fort Worth) has requested that Black & Veatch provide benchmarking for the Laboratory Services Division. Scope of Work Black&Veatch's Benchmarking Scope of Work will consist of the following: 1. Confirmation with the Client of comparison facilities to be used in benchmarking; 2. Contact and compilation of various comparison rates against the Department's Lab Fees; and 3. Provide letter report of the results of the benchmarking. Project Schedule The Black& Veatch team shall complete this work in ninety (90) days. The duration of these tasks is dependent upon the timeliness in receiving needed data. Project Cost Black&Veatch shall perform the Task as described above for a cost described below: Benchmarking Process: 66.67 hours @$150/hr=$ 10,000 9