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HomeMy WebLinkAboutContract 51738 CITY SECRETARY CONTRACT N0._ I7 �J STATE OF TEXAS § § KNOWN ALL BY THESE PRESENTS COUNTY OF TARRANT § *� CONTRACT FOR EMERGENCY RESPONSE SERVICES FOR ENVIRONMENTAL HAZARDS 1�°est` LEBOW CHANNEL ROADWAY CROSSING REPLACEMENT °<F°���tPe� PHASE 3 c�c��vs�c BRENNAN AVENUE This Contract is entered into by and between the City of Fort Worth, Texas, a home-rule municipality located within Tarrant County Texas, ("City") acting through its duly authorized Assistant City Manager, and Progressive Environmental Services, Inc. dba SWS Environmental Services ("Contractor"), acting through Brian Turner, its duly authorized Chief Financial Officer. In consideration of the mutual promises and benefits of this Contract, the City and the Contractor agree as follows: ARTICLE 1. DEFINITIONS In this contract, the following words and phrases shall be defined as follows; Contract Documents means this contract and any contract amendments, change orders, task orders or other documents related to the substance of this contract. Hazardous materials means those materials defined as hazardous by the Hazardous Materials Transportation Act, 49 U.S.C. § 1801 et seq. Hazardous substance means any substance designated pursuant to 33 U.S.C. § 1321 (b)(21)(A); any element, compound, mixture, solution, or substance designated pursuant to 42 U.S.C. § 6921, the Solid Waste Disposal Act (but not including any waste the regulation of which under the Solid Waste Disposal Act has been suspended by Act of Congress; any toxic pollutant listed under 33 U.S.C. § 1317(a); any hazardous air pollutant listed under 42 U.S.C. § 7412, the Clean Air Act; and any imminently hazardous chemical substance or mixture with respect to which the Administrator has taken action pursuant to 15 U.S.C. § 2606. The term does not include petroleum, PM including crude oil substance under any of the above references, and the term does not lude natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for 4 fu e (ter mixtures of natural gas and such synthetic gas). n� r�A' Q �n ^� RVICES _#MERG CY RESPONSE ERVICES 1POG SIVE ENVIRONMENTAL SERVICES, CHANNEL ROADWAY OCROSSING NMENTAL REPLACEMENT- jQF%!�►0�PR® Itf'"ISEtRETARY FT. WORTH,TX A � Hazardous Waste means any solid waste identified or listed as a hazardous waste by the administrator of the United States Environmental Protection Agency pursuant to the federal Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, 42 U.S.C. §§6901 et seq., as amended. Notice to Proceed means written notice by an authorized representative of the TPW Capital Delivery Division that directs the Contractor to mobilize to the work site. Oil means any kind of oil in any form, including, but not limited to, petroleum, fuel oil, crude oil, or any fraction thereof which is liquid at standard conditions of temperature and pressure, sludge, oil refuse, and oil mixed with waste. Order of Cessation means notice, either oral or written, from the City's Representative to immediately halt further work under this Contract. Pollutant means dredged spoil; solid waste; incinerator residue; filter backwash; sewage (including sewage from boats); garbage; sewage sludge; munitions; medical wastes; chemical wastes; biological materials; toxic materials; radioactive materials; heat, wrecked or discarded equipment; rock; sand; cellar dirt; industrial, municipal, recreational, agricultural and other waste; and certain characteristics of wastewater (e.g., pH, temperature, TSS, turbidity, color, BOD, COD, toxicity, or odor). Responsible Party means the owner or operator of a vehicle, pipeline, or facility from which there has been a release or a threatened release of toxic or hazardous substances, materials, or wastes; oil or petroleum substance; pollutants; or contaminants. The Contractor shall not hold the City as a Responsible Party, nor shall the Contractor refer to the City as a Responsible Party to any third party. Subcontract means a contract between the Contractor for this project and another person or company for any task defined in the scope of work. A purchase order is also considered a subcontract. ARTICLE 2. SCOPE OF CONTRACTOR'S SERVICES Contractor hereby agrees to perform as an independent contractor the services set forth in the Scope of Work attached hereto as Attachment "A". PROGRESSIVE ENVIRONMENTAL SERVICES, INC.DBA SWS ENVIRONMENTAL SERVICES EMERGENCY RESPONSE SER VICES;LEBOW CHANNEL ROADWAY CROSSING REPLACEMENT—PH 3—BEENNAN AVE Page 2 of 21 ARTICLE 3. COMPENSATION Section 1. Fee Schedule. City and Contractor agree to the unit prices, labor rates, and other costs as specified in this contract. Contractor shall be compensated in accordance with the Fee Schedule shown in Attachment "B". Payment shall be considered full compensation for all labor, materials, supplies, and equipment necessary to complete the services described in Attachment "A". The total fee paid by the City shall not exceed a total of one hundred and seventy-five thousand dollars ($175,000) and the City will not be liable for any Contractor fees, costs, or other remuneration in excess of this amount unless the City has signed and issued a formal duly authorized amendment or modification to this contract. Section 2. Invoice and Payment. The Contractor shall provide monthly invoices to the City. All invoices must reflect the City Purchase Order number. Invoices shall contain a detailed breakdown to include: labor including employee name, functional title, date and hours of work performed; internal supplies, equipment, and services provided; and external supplies, equipment, and services provided. Payment for services rendered shall be due within thirty (30) days of the uncontested performance of the particular services so ordered and receipt by City of Contractor's invoice for payment of same. In the event of a disputed or contested billing, only that portion so contested may be withheld from payment, and the undisputed portion will be paid. No interest will accrue on any contested portion of the billing until mutually resolved. City will exercise reasonableness in contesting any billing or portion thereof. N/A Contractor shall receive no additional compensation for work delays or hindrances except when direct and unavoidable extra costs to the Contractor are caused by the City's gross negligence. PROGRESSIVE ENVIRONMENTAL SERVICES, INC.DBA SWS ENVIRONMENTAL SERVICES EMERGENCY RESPONSE SERVICES;LEBOW CHANNEL ROADWAY CROSSING REPLACEMENT—PH 3—BEENNAN AVE Page 3 of 21 ARTICLE 4. TERM This term of this contract shall be for the period necessary to remove and dispose the contaminated soil and groundwater at the site. The City shall have final determination that the scope of work has been completed and no other remediation is necessary. ARTICLE 5. INDEPENDENT CONTRACTOR The City agrees to hire Contractor as an independent contractor, and not as an officer, servant, or employee of the City. Contractor shall have 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 subcontractors. Nothing herewith shall be construed as creating a partnership or joint venture between the City and Contractor, its officers, agents, employees, and subcontractors; and the doctrine of respondent superior has no application as between the City and Contractor. ARTICLE 6. INDEMNIFICATION Section 1. Definitions. In this Article, the following words and phrases shall be defined as follows: Environmental Damages shall mean damages which are incurred as a result of negligence, an intentional tort, failure to meet the standard of care exercised by companies providing similar services in the state of Texas, or a violation of environmental requirements pertaining to work performed under this contract by the Contractor and/or Subcontractors, and including without limitation: a. Damages (both direct and indirect damages including consequential and punitive damages) for personal injury and death, or injury or impairment to property or natural resources; and b. Fees incurred for the services of attorneys, consultants, contractors, experts, laboratories and other reasonable costs required by any federal, state or local governmental agency or otherwise expended to investigate and remedy the environmental damages including any consultant's and attorney's fees, costs and expenses incurred in enforcing this contract or collecting any sums due hereunder. PROGRESSIVE ENVIRONMENTAL SERVICES, INC.DBA SWS ENVIRONMENTAL SERVICES EMERGENCY RESPONSE SERVICES;LEBOW CHANNEL ROADWAY CROSSING REPLACEMENT—PH 3—BEENNAN AVE Page 4 of 21 Environmental requirements shall mean all applicable to the work performed under this agreement (or which may become applicable during the term of this agreement) statutes, regulations, rules, plans, authorizations, concessions, franchises, and similar items, of all governmental agencies, departments, commissions, boards, bureaus, or instrumentalities of the United States, states, and political subdivisions thereof and all applicable judicial, administrative, and regulatory decrees, judgments, and orders relating to the protection of human health or the environment, including without limitation: a. All requirements, including, but not limited to, those pertaining to reporting, licensing, emissions, discharges, releases, or threatened releases of hazardous materials, pollutants, contaminants or hazardous or toxic substances, materials, or wastes whether solid, liquid, or gaseous in nature, into the air, surface water, groundwater, stormwater, or land, or relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport, or handling of pollutants, contaminants, or hazardous or toxic substances, materials, or wastes, whether solid, liquid, or gaseous in nature; and b. All requirements pertaining to the protection of the environment and the health and safety of employees or the public. Section 2. General Indemnification. CONTRACTOR SHALL INDEMNIFY, HOLD HARMLESS, RELEASE, REIMBURSE, AND DEFEND THE CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES AGAINST ANY AND ALL CLAIMS, ACTIONS, SUITS, DEMANDS, PREEDINGS, COSTS, DAMAGES, AND LIABILITIES, INCLUDING ATTORNEYS FEES AND COSTS OF INVESTIGATION AND LITIGATION ARISING OUT OF OR RESULTING FROM ANY ACTS OR OMISSIONS OF CONTRACTOR, ITS AGENTS, EMPLOYEES, SUBCONTRACTORS, VENDORS, AND SUPPLIERS IN THE EXECUTION OR PERFORMANCE OF THIS CONTRACT. THIS INDEMNIFICATION INCLUDES BUT IS NOT LIMITED TO THE FOLLOWING: a. SOLE OR JOINT NEGLIGENCE b. ANY INTENTIONAL TORT, FRAUD, MALACE, MALFEASANCE, OR CRIME c. VIOLATION OF A LAW OR REGULATION d. ANY CONDITION OR EVENT TRIGGERING STRICT LIABILITY e. THE INFRINGEMENT OF ANY TANGIBLE, INTANGIBLE, OR INTELLECTUAL PROPERTY INTEREST PROGRESSIVE ENVIRONMENTAL SERVICES, INC.DBA SWS ENVIRONMENTAL SERVICES EMERGENCY RESPONSE SERVICES;LEBOW CHANNEL ROADWAY CROSSING REPLACEMENT—PH 3—BEENNAN AVE Page 5 of 21 f. FAILURE TO PAY A DEBT INCURRED PARTIALLY OR WHOLLY IN PERFORMANCE OF THIS CONTRACT g. ANY CLAIM FOR DAMAGE TO A PERSON'S REAL OR PERSONAL PROPERTY INTEREST, OR PERSONAL INJURY, AND/OR DEATH. FOR THE PURPOSES OF THIS ARTICLE, DAMAGES SHALL BE CONSTRUED BROADLY TO INCLUDE CURRENT AND FUTURE DAMAGES, AND DIRECT AND INDIRECT DAMAGES SUCH AS PUNATIVE, EXEMPLARY, AND CONSEQUENTIAL DAMAGES. Section 3. Environmental Indemnification. CONTRACTOR DOES HEREBY RELEASE, INDEMNIFY, DEFEND, REIMBURSE, AND HOLD HARMLESS THE CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES, AGAINST ANY AND ALL ENVIRONMENTAL DAMAGES AND THE VIOLATION OF ANY AND ALL ENVIRONMENTAL REQUIREMENTS RESULTING FROM CONTRACTOR'S OPERATIONS UNDER THIS AGREEMENT WHEN SUCH ENVIRONMENTAL DAMAGES OR VIOLATION OF ENVIRONMENTAL REQUIREMENTS ARE CAUSED BY THE ACT OR OMISSION OF CONTRACTOR, ITS OFFICERS, AGENTS, EMPLOYEES, OR CONTRACTORS, OR THE JOINT ACT OR OMISSION OF CONTRACTOR, ITS OFFICERS, AGENTS, EMPLOYEES, OR CONTRACTORS AND ANY OTHER PERSON OR ENTITY AND WHICH ARE DIRECTLY RELATED TO EITHER (i) NEGLIGENCE; (ii) INTENTIONAL OR WILLFUL MISCONDUCT; (iii) RELATED TO A VIOLATION OF A LAW, REGULATION, OR PERMIT; OR (iv) A BREACH OF A DUTY OF CARE OR PROFESSIONAL STANDARD. Section 4. The obligations of the Contractor under this Article shall include, but not be limited to, the burden and expense of defending all claims, suits and administrative proceedings (with counsel reasonably approved by the City), even if such claims, suits or proceedings are groundless, false, or fraudulent, and conducting all negotiations of any description, and paying and discharging, when and as the same become due, any and all judgments, penalties or other sums due against such indemnified persons. Upon learning of a claim, lawsuit, or other liability which Contractor is required hereunder to indemnify, City shall provide Contractor with reasonable timely notice of same. All Contractors under this contract agree that they assume joint and several liability for any claim by the City or for a third party claim against the City for general or environmental damages caused by any of the Contractors herein. PROGRESSIVE ENVIRONMENTAL SERVICES, INC.DBA SWS ENVIRONMENTAL SERVICES EMERGENCY RESPONSE SERVICES;LEBOW CHANNEL ROADWAY CROSSING REPLACEMENT—PH 3—BEENNAN AVE Page 6 of 21 The obligations of the Contractor under this Article shall survive the expiration or termination of this Agreement and the discharge of all other obligations owed by the parties to each other hereunder. ARTICLE i. INSURANCE The Contractor certifies it has, at a minimum, current insurance coverage as detailed below and will maintain it throughout the term of this Contract. Prior to commencing work, the Contractor shall deliver to City, certificates documenting this coverage. The City may elect to have the Contractor submit its entire policy for inspection. A. Insurance coverage and limits: 1. Commercial General Liability Insurance $1,000,000 each occurrence; $2,000,000 aggregate 2. Professional Liability Insurance Not Applicable for this Contract 3. Automobile Liability Insurance Coverage on vehicles involved in the work performed under this contract.. $1,000,000 per accident on a combined single limit basis or: $500,000 bodily injury each person; $1,000,000 bodily injury each accident; and $250,000 property damage The named insured and employees of Contractor shall be covered under this policy. The City of Fort Worth shall be named an Additional Insured, as its interests may appear. Liability for damage occurring while loading, unloading and transporting materials collected under the Contract shall be included under this policy. 4. Worker's Compensation Coverage A: statutory limits Coverage B: $100,000 each accident $500,000 disease -policy limit $100,000 disease -each employee 5. Environmental Impairment Liability (EIL) and/or Pollution Liability $4,000,000 per occurrence. EIL coverage(s) must be included in policies listed in subsections 1 and 2 above; or, such insurance shall be provided under separate PROGRESSIVE ENVIRONMENTAL SERVICES, INC.DBA SWS ENVIRONMENTAL SERVICES EMERGENCY RESPONSE SERVICES;LEBOW CHANNEL ROADWAY CROSSING REPLACEMENT—PH 3—BEENNAN AVE Page 7 of 21 policy(s). Liability for damage occurring while loading, unloading and transporting materials collected under the contract shall be included under the Automobile Liability insurance or other policy(s). B. Certificates of Insurance evidencing that the Contractor has obtained all required insurance shall be delivered to the City prior to Contractor proceeding with the Contract. 1. Applicable policies shall be endorsed to name the 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. 2. Certificate(s) of Insurance shall document that insurance coverage specified herein are provided under applicable policies documented thereon. 3. Any failure on part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirements. 4. A minimum of thirty (30) days notice of cancellation or material change in coverage shall be provided to the City. A ten (10) days notice shall be acceptable in the event of non-payment of premium. Such terms shall be endorsed onto Contractor's insurance policies. Notice shall be sent to Department of Risk Management, City of Fort Worth, 1000 Throckmorton Street, Fort Worth, Texas 76102. 6. Insurers for all policies must be authorized to do business in the state of Texas or be otherwise approved by the City; and, such insurers shall be acceptable to the City in terms of their financial strength and solvency. 7. Deductible limits, or self-insured retentions, affecting insurance required herein shall be acceptable to the City in 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 the City. 8. Applicable policies shall each be endorsed with a waiver of subrogation in favor of the City as respects the Contract. 9. The City shall be entitled, upon its request and without incurring expense, to review the Contractor's insurance policies including endorsements thereto and, at the City's discretion; the Contractor may be required to provide proof of insurance premium payments. 10. The Commercial General Liability insurance policy shall have no exclusions by endorsements unless the City approves such exclusions. PROGRESSIVE ENVIRONMENTAL SERVICES, INC.DBA SWS ENVIRONMENTAL SERVICES EMERGENCY RESPONSE SERVICES;LEBOW CHANNEL ROADWAY CROSSING REPLACEMENT—PH 3—BEENNAN AVE Page 8 of 21 11. The City shall not be responsible for the direct payment of any insurance premiums required by the contract. It is understood that insurance cost is an allowable component of Contractor's overhead. 12. All insurance required above shall be written on an occurrence basis in order to be approved by the City. 13. Subcontractors to the Contractor shall be required by the Contractor to maintain the same or reasonably equivalent insurance coverage as required for the Contractor. When subcontractors maintain insurance coverage, Contractor shall provide City with documentation thereof on a certificate of insurance. Notwithstanding anything to the contrary contained herein, in the event a subcontractor's insurance coverage is canceled or terminated, such cancellation or termination shall not constitute a breach by Contractor of the contract. ARTICLE 8. BONDS A. Payment and Performance Bonds. Before beginning the work, the Contractor shall be required to execute to the City of Fort Worth, a payment bond if the contract is in excess of $25,000, and a performance bond if the contract is in excess of $100,000. The payment bond is solely for the protection and use of payment bond beneficiaries who have a direct contractual relationship with the Contractor or subcontractor to supply labor or material; and in 100% the amount of the Contract. The performance bond is solely for the protection of the City of Fort Worth; in 100% the amount of the Contract; and conditioned on the faithful performance by Contractor of the work in accordance with the plans, specifications, and contract documents. Contractor must provide the payment and performance bonds, in the amounts and on the conditions required, within 14 calendar days after Notice of Award. B. Requirements for Sureties. The bonds shall be issued by a corporate surety duly authorized and permitted to do business in the State of Texas that is of sufficient financial strength and solvency to the satisfaction of the City. The surety must meet all requirements of Article 7.19-1 of the Texas Insurance Code. All bonds furnished hereunder shall meet the requirements of Chapter 2253 of the Texas Government Code, as amended. In addition, the surety must (1) hold a certificate of authority from the United States Secretary of the Treasury to qualify as a surety on obligations permitted or required under federal law; or (2) have obtained reinsurance for any liability in excess of $100,000 from a reinsurer that is authorized and admitted as a reinsurer in the state of Texas and is the holder of a certificate of authority from the United States Secretary of the Treasury to qualify as a surety on obligations permitted or required under federal law. Satisfactory proof of any such PROGRESSIVE ENVIRONMENTAL SERVICES, INC.DBA SWS ENVIRONMENTAL SERVICES EMERGENCY RESPONSE SERVICES;LEBOW CHANNEL ROADWAY CROSSING REPLACEMENT—PH 3—BEENNAN AVE Page 9 of 21 reinsurance shall be provided to the City upon request. The City, in its sole discretion, will determine the adequacy of the proof required herein. No sureties will be accepted by the City that are at the time in default or delinquent on any bonds or which are interested in any litigation against the City. Should any surety on the Contract be determined unsatisfactory at any time by the City, notice will be given to the Contractor to that effect and the Contractor shall immediately provide a new surety satisfactory to the City. ARTICLE 9. WARRANTY Contractor warrants that it understands the actual and potential hazards which are presented to persons, property and the environment by the type of work to be performed under this contract. Contractor further warrants that it will perform all services under this Contract in a safe, efficient and lawful manner using industry accepted practices, and in full compliance with all applicable state and federal laws governing its activities and is under no restraint or order which would prohibit performance of services under this Contract. ARTICLE 10. DEFAULT AND TERMINATION A. Contractor shall not be deemed to be in default because of any failure to perform in a timely manner under this contract, if the failure arises from acts of God, acts of the public enemy, fires, epidemics, quarantine restrictions, labor strikes, freight embargoes, and unusually severe weather, except however that Contractor shall take all reasonable measures to mitigate any delays and costs. The City in all circumstances reserves the right to obtain performance of the services anticipated by this contract from another Contractor at its sole discretion for any reason and such an act will not be deemed to be a breach by the City. B. If the failure to perform is caused by the failure of a subcontractor of Contractor's to perform, and if such failure was beyond the control of both the Contractor and the subcontractor, without their fault or negligence, Contractor shall not be deemed to be in default unless the subcontracted supplies or services were reasonably obtainable from other sources. C. If Contractor fails to begin work herein provided for within the time specified above, or to complete such work within the time specified above, within the true meaning of this contract, City shall have the right to take charge of and complete the work in such a manner as it may deem appropriate. If City exceeds the costs detailed in the attached documents, City may deliver to Contractor a written itemized statement of the total excess costs, and Contractor shall reimburse City for such excess costs without delay. PROGRESSIVE ENVIRONMENTAL SERVICES, INC.DBA SWS ENVIRONMENTAL SERVICES EMERGENCY RESPONSE SERVICES;LEBOW CHANNEL ROADWAY CROSSING REPLACEMENT—PH 3—BEENNAN AVE Page 10 of 21 D. Alternatively, if at any time during the term of this contract the work of Contractor fails to meet the specifications of the contract documents, City may notify Contractor of the deficiency in writing. Failure of Contractor to correct such deficiency and complete the work required under this contract to the satisfaction of City within ten days after written notification shall result in termination of this contract. All costs and attorneys fees incurred by City in the enforcement of any provision of this contract shall be paid by Contractor. E. City may terminate this Contract with or without cause upon written notice to Contractor, provided that such termination shall be without prejudice to any other remedy the City may have. In the event of termination, any work in progress will continue to completion unless specified otherwise in the notice of termination. The City shall pay for any such work in progress that is completed by Contractor and accepted by the City. F. The remedies provided for herein are in addition to any other remedies available to City elsewhere in this contract. ARTICLE 11. LICENSES AND PERMITS Contractor certifies and warrants that on the day any work is to commence under this contract and during the duration of the contract it shall have and maintain all of the current, valid, and appropriate federal, state, and local licenses and permits necessary for the provision of services under this contract. Contractor also certifies that if it uses any subcontractor in the performance of this contract, that such subcontractor shall have and maintain all of the current, valid, and appropriate federal, state, and local licenses and permits necessary for the provision of services under this contract. ARTICLE 12. OBSERVE AND COMPLY Contractor shall at all times observe and comply with all federal, state, and local laws and regulations and with all City ordinances and regulations which in any way affect this Agreement and the work hereunder, and shall observe and comply with all orders, laws ordinances and regulations which may exist or may be enacted later by governing bodies having jurisdiction or authority for such enactment. No plea of misunderstanding or ignorance thereof shall be considered. Contractor agrees to defend, indemnify and hold harmless City and all of its officers, agents and employees from and against all claims or liability arising out of the violation of any such order, law, ordinance, or regulation, whether it be by itself or its employees. PROGRESSIVE ENVIRONMENTAL SERVICES, INC. DBA SWS ENVIRONMENTAL SERVICES EMERGENCY RESPONSE SERVICES;LEBOW CHANNEL ROADWAY CROSSING REPLACEMENT—PH 3—BEENNAN AVE Page 11 of 21 ARTICLE 13. MODIFICATION No amendment or modification of this Contract shall be binding on the Contractor or the City unless set out in writing and signed by both parties. No amendment or modification shall be binding upon the City unless signed by the City Manager or an Assistant City Manager of the City of Fort Worth. Any changes to the scope of work or compensation must be in the form of a written, formal, authorized modification of this contract that is in accordance with all applicable state and city laws, regulations, and ordinances. In no event shall any verbal authorization changing the scope of work or verbal agreements for additional compensation be binding upon the City. Contractor expressly agrees a) not to make changes to its legal, financial, or logistical position on any matter based on any oral representation by an employee, contractor, or agent of the City prior to obtaining a written modification to this contract; b) that it waives any claim based upon reliance or estoppel as a result of acting or not acting due to an alleged oral change to a material term of this contract from the City, its employees, contractors, or agents; and c) that it waives any claim for compensation for work performed based upon an alleged oral change to a material term of this contract from the City, its employees, or agents. ARTICLE 14. RIGHT TO AUDIT City and Contractor agree that, until the expiration of three (3) years after the final payment under this Contract, the City shall have access to and the right to examine any directly pertinent books, documents, papers and records of the Contractor involving transactions relating to this Contract. Contractor further agrees to include in all its subcontracts hereunder a provision to the effect that the subcontractor agrees that the City shall, until the expiration of three (3) years after final payment under the subcontract, have access to papers and records of such subcontractor involving transactions relating to the subcontract. The term "subcontract" as used herein includes purchase orders. ARTICLE 15. MINORITY AND WOMAN BUSINESS ENTERPRISE (M/WBE) PARTICIPATION The M/WBE goal has been waived for this effort. ARTICLE 16. NON-DISCRIMINATION PROGRESSIVE ENVIRONMENTAL SERVICES, INC. DBA SWS ENVIRONMENTAL SERVICES EMERGENCY RESPONSE SERVICES;LEBOW CHANNEL ROADWAY CROSSING REPLACEMENT—PH 3—BEENNAN AVE Page 12 of 21 During the performance of this contract, Contractor shall not discriminate in its employment practices and shall comply with all applicable provisions of Chapter 17, Article III of the Code of the City of Fort Worth. Contractor agrees not to discriminate against any employee or applicant for employment because of because of age, race, color, religion, sex, disability, national origin, sexual orientation, transgender, gender identity or gender expression in any manner involving employment, including the recruitment of applicants for employment, advertising, hiring, layoff, recall, termination of employment, promotion, demotion, transfer, compensation, employment classification, training and selection for training or any other terms, conditions or privileges of employment. Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of the non-discrimination clause. Contractor also agrees that in all solicitations or advertisements for employees placed by or on behalf of this contract, that Contractor is an equal opportunity employer. Notices, advertisements, and solicitations placed in accordance with federal law, rule or regulation shall be deemed sufficient for the purpose of meeting the requirements of this section. ARTICLE 17. GOVERNING LAW The City and Contractor agree that the validity and construction of this contract shall be governed by the laws of the State of Texas, except where preempted by federal law. ARTICLE 18. SEVERABILITY The provisions of this contract are severable; and if for any reason any one or more of the provisions contained herein are held to be invalid, illegal or unenforceable in any respect, the invalidity, illegality or unenforceability shall not affect any other provision of this contract, and this contract shall remain in effect and be construed as if the invalid, illegal or unenforceable provision had never been contained in the contract. ARTICLE 19. RIGHTS AND REMEDIES NOT WAIVED In no event shall the making by the City of any payment to Contractor constitute or be construed as a waiver by the City of any breach of covenant, or any default which may then exist, on the part of Contractor, and the making of any such payment by the City while any such breach or default exists shall in no way impair or prejudice any right or remedy available to the City with respect to such breach or default. Any waiver by either party of any provision or condition of the contract shall not be construed or decreed to PROGRESSIVE ENVIRONMENTAL SERVICES, INC. DBA SWS ENVIRONMENTAL SERVICES EMERGENCY RESPONSE SERVICES;LEBOW CHANNEL ROADWAY CROSSING REPLACEMENT-PH 3-BEENNAN AVE Page 13 of 21 be a waiver of any other provision or condition of this Contract, nor a waiver of a subsequent breach of the same provision or condition, unless such waiver be expressed in writing by the party to be bound. ARTICLE 20. VENUE AND JURISDICTION If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of 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. Contractor affirms that it is subject to the jurisdiction of said Courts. ARTICLE 21. NOTICES Any notices, bills, invoices or reports required by this contract shall be sufficient if sent by the parties in the United States mail, postage paid, to the address noted below: If to the City: Steve Cooke, Interim Director —TPW Department 200 Texas Street Fort Worth, TX 76102 Christa Lopez-Reynolds, Sr. Assistant City Attorney 200 Texas Street Fort Worth, TX 76107 If to the Contractor: Brian Turner, Vice President Progressive Environmental Services, Inc. dba SWS Environmental Services 9204 HWY 287 NW Fort Worth, Texas 76131 Phone: 817-847-1333 ARTICLE 22. ASSIGNMENT The City and Contractor bind themselves and any successors and assigns to this contract. Contractor shall not assign, sublet, or transfer its interest in this contract without written consent of the City. Nothing herein shall be construed as creating any personal liability on the part of any officer or agent of the City, nor shall it be construed as giving any rights or benefits hereunder to anyone other than the City and Contractor. PROGRESSIVE ENVIRONMENTAL SERVICES, INC.DBA SWS ENVIRONMENTAL SERVICES EMERGENCY RESPONSE SERVICES;LEBOW CHANNEL ROADWAY CROSSING REPLACEMENT—PH 3—BEENNAN AVE Page 14 of 21 ' f If Contractor desires to subcontract any service(s) to be performed under this contract, Contractor agrees to obtain the City's written acceptance of such subcontractor(s) before allowing any subcontractor(s) to perform designated service or services. Failure of the Contractor to obtain the City's written acceptance of any and all of the Contractor's subcontractors used in the performance of this agreement shall be grounds for automatic termination. In addition, Contractor acknowledges that City may, at City's own discretion, perform on-site audits of all proposed subcontractors' facilities in order to determine acceptability of the Subcontractor(s). ARTICLE 23. NO THIRD-PARTY BENEFICIARIES This Agreement shall inure only to the benefit of the parties hereto and third persons not privy hereto shall not, in any form or manner, be considered a third party beneficiary of this Agreement. Each party hereto shall be solely responsible for the fulfillment of its own contracts or commitments. ARTICLE 24. CONTRACT CONSTRUCTION The parties acknowledge that each party and, if it so chooses, its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party must not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. 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. ARTICLE 25. ENTIRETY This contract, the contract documents and any other documents incorporated by reference herein are binding upon the parties and contain all the terms and conditions agreed to by the City and Contractor, and no other contracts, oral or otherwise, regarding the subject matter of this contract or any part thereof shall have any validity or bind any of the parties hereto. In the event of any conflict between this contract and any other contract documents, then the terms of this contract shall govern. ARTICLE 26. AUTHORITY AND EXECUTION By signing this contract Contractor warrants that it has had the opportunity 1) to examine this contract in its entirety, 2) to have its legal counsel examine and explain the PROGRESSIVE ENVIRONMENTAL SERVICES, INC. DBA SWS ENVIRONMENTAL SERVICES EMERGENCY RESPONSE SERVICES;LEBOW CHANNEL ROADWAY CROSSING REPLACEMENT-PH 3-BEENNAN AVE Page 15 of 21 content, terms, requirements, and benefits of this contract if Contractor so chooses, and 3) to negotiate the terms of this contract within the bounds of applicable law. Having had the opportunity to submit its bid and also to specifically negotiate the terms of this contract, Contractor agrees to be bound by this contract and expressly agrees to the terms of this contract, including terms that may vary from those of the Invitation to Bid or the Contractor's proposal. The signatory to this contract represents that he or she is legally authorized by the Contractor to enter into a binding agreement on behalf of the Contractor. PROGRESSIVE ENVIRONMENTAL SERVICES, INC.DBA SWS ENVIRONMENTAL SERVICES EMERGENCY RESPONSE SERVICES;LEBOW CHANNEL ROADWAY CROSSING REPLACEMENT—PH 3—BEENNAN AVE Page 16 of 21 r ATTACHMENT A ADDITIONAL CONDITIONS AND SCOPE OF WORK SCOPE OF CONTRACTOR'S SERVICES Scope of work applies to the site of the Lebow Channel Roadway Crossing Replacement — Phase 3 — Brennan Avenue project. Contractor shall furnish all labor, materials, and equipment necessary for and have the responsibility to: • SWSES will mobilize appropriate personnel and equipment to the site upon client issuance of purchase Order. • Assist the City in disposal of solid and liquid waste. However, Contractor shall not make any discharge into the City's storm or sanitary sewer system without express written consent from City.lf requested by the City, collect samples and have analytical testing performed to assist in the characterization and profiling of waste for disposal. All analytical testing shall be performed at a Laboratory designated by the City. • Obtain approval with the City for profiled waste and make arrangements for disposal if the waste is Class I or Class II Non-Hazardous Waste, including applicable fees and permits. • SWSES will provide trucks for transportation of up to 3000 tons of Class I Nonhazardous Soil to Turkey Creek Landfill for final disposition. • If the waste is Hazardous, the Contractor shall contact the City to make arrangements for disposal. SWSES Will Profile Soil and Provide Manifests and dispose of the soil material as a Class I Nonhazardous Soil with authorization and approval from the Landfill Facility. Testing of the soil and water has been completed under a separate agreement with Klutz Construction. Excavation and Loading of soil will be conducted by personnel with Klutz Construction. Note; soil transportation and disposal assumed Class I Nonhazardous and pricing does not include transportation or disposal of any hazardous soil that may be encountered during the project. If hazardous soils are encountered a change order will be provided to the city for review and acceptance. • Provide transportation of non-hazardous solid and liquid wastes to the appropriate disposal facility. • Provide sorbent products to the City on an as-needed basis. • Provide other services as needed to dispose the solid and liquid wastes as expressly requested by the City. • Contractor shall immediately and prior to its response, notify the City of any and all direct communication or inquiry it receives from the Texas Commission on Environmental Quality, the United States Environmental Protection Agency or PROGRESSIVE ENVIRONMENTAL SERVICES, INC.DBA SWS ENVIRONMENTAL SERVICES EMERGENCY RESPONSE SERVICES;LEBOW CHANNEL ROADWAY CROSSING REPLACEMENT—PH 3—BEENNAN AVE Page 17 of 21 any other state or federal agency. Contractor shall provide advance notice of any of its communication to the Texas Commission on Environmental Quality, the United States Environmental Protection Agency or any other state or federal agency. Response Action Report Following an Order of Cessation or completion of response action, Contractor shall provide a comprehensive report of the actions taken on behalf of the City of Fort Worth within five (5) days. The written report shall include a summary of all actions including final cleanup and the name of the City employee who initially contacted the Contractor for response. This report shall accompany the invoice submitted for the work. Waste Disposal Documentation Contractor shall further provide City with fully executed copies of Waste Manifests within 30 calendar days of waste shipments. No payment shall become due and payable until all pertinent Waste Manifests have been delivered to the City. Contractor shall provide all paperwork and documentation needed to complete waste shipments. Contractor certifies that it has and will maintain during the term of this Contract, current and appropriate federal, state, and local licenses and permits to perform the work described in the Contract Documents. In addition, Contractor agrees to require any of its subcontractors used to perform this Contract to have and maintain current and appropriate federal, state and local licenses and permits to perform this contract; and SCOPE OF CITY SERVICES The City agrees to-perform the following services: • Designate a City representative to provide timely direction to the Contractor, render City decisions and to accompany Contractor to the work site. • Coordinate with City facilities, City departments, and any tenants. •Arrange, coordinate, and take any and all actions reasonably necessary to obtain and secure ingress and egress to emergency response sites. Contractor herein agrees that it will attempt entrance to an emergency response site only upon authorization by the City. • Provide excavation of contaminated soil and pumping of groundwater by others. ORDER OF CESSATION PROGRESSIVE ENVIRONMENTAL SERVICES, INC.DBA SWS ENVIRONMENTAL SERVICES EMERGENCY RESPONSE SERVICES;LEBOW CHANNEL ROADWAY CROSSING REPLACEMENT—PH 3—BEENNAN AVE Page 18 of 21 City may issue an Order of Cessation under the following circumstances: 1. Contractor has entered into an agreement with the Responsible Party for remediation services at the work site. In such event, City shall have no further responsibility to the Contractor after the agreement with the Responsible Party has been executed and the City has been provided a copy of such agreement; 2. The Responsible Party has entered into an agreement with another contractor to perform remediation services at the work site, and that contractor has arrived on scene. In such event, Contractor shall cancel its response if in route or take all appropriate steps to turn control of the remediation over to the Responsible Party's contractor. 3. At any time City determines that the work is being carried out in a hazardous or unlawful manner. In such event, Contract shall immediately turn control of in-use containment or sorbent products to the City, and perform appropriate demobilization activities. The remainder of this page is left intentionally blank PROGRESSIVE ENVIRONMENTAL SERVICES, INC.DBA SWS ENVIRONMENTAL SERVICES EMERGENCY RESPONSE SERVICES;LEBOW CHANNEL ROADWAY CROSSING REPLACEMENT—PH 3—BEENNAN AVE Page 19 of 21 ATTACHMENT B COMPENSATION Compensation shall be in accordance with the compensation schedule below. The labor prices therein are per hour are for services provided between the hours of 7:00 AM and 5:00 PM Central Standard Time (or Central Daylight Time, as applicable) and shall be considered the base compensation rate. Item Unit Cost Units Supervisor/PM $ 110.00 hour Technician $ 60.00 hour Dump Truck $ 240.00 load Class I Non-hazardous soil $ 35.00 ton Discharge permit for Cit $ 2,500.00 LD PROGRESSIVE ENVIRONMENTAL SERVICES, INC.DBA SWS ENVIRONMENTAL SERVICES EMERGENCY RESPONSE SERVICES;LEBOW CHANNEL ROADWAY CROSSING REPLACEMENT—PH 3—BEENNAN AVE Page 20 of 21 SIGNATURE PAGE IN WITNESS THEREOF, the parties have executed this contract in triplicate in Fort Worth, Texas, on the dates written below. CITY OF FORT WORTH CONTRACTOR Progressive Environmental Services, Inc. dba SWS Environmental Services X/1-1k Tgywet- BY. BY. Brian Turner(Jan 4,2019) Sus4n Alnis Brian Turner Assis C y Mpnager Vice President Dated: 1 RE-GPMMENDED: l Katherine Cutts(Jan 4,2019) St ve C oke Interim Director, TPW Witness APPROVED AS TO FORM AND LEGALITY: 4ae--- CORPORATE SEAL: eo—Christa Reynolds Sr. Assistant City Attorney a A ^ F FORT := OFFICIAL RECORD' Mdy J. Kayser *'• * CITY SECRETARY City Secretary rEXAs.. FT. WORTH,TX PROGRESSIVE ENVIRONMENTAL SERVICES,INC.DBA SWS ENVIRONMENTAL SERVICES EMERGENCY RESPONSE SERVICES;LEBOW CHANNEL ROADWAY CROSSING REPLACEMENT—PH 3—BEENNAN AVE Page 21 of 21 SWS Spill Response Contract Lebow Brennancr I(dwb)-final_010419final Final Audit Report 2019-01-04 Created: 2019-01-04 By: Katherine Cutts(katherine.cutts@swsenvironmental.com) Status: Signed Transaction ID: CBJCHBCAABAAgy02npFglc-D_sbs0e4XLwJROXTgNaO4 "SWS Spill Response Contract Lebow Brennancrl(dwb)-final_01 0419final" History Document created by Katherine Cutts (katherine.cuffs@swsenvironmental.com) 2019-01-04-7:51:01 PM GMT-IP address:12.181.21.10 Document emailed to Brian Turner(bturner@nrcc.com)for signature 2019-01-04-7:51:10 PM GMT Document viewed by Brian Turner(btumer@nrcc.com) 2019-01-04-7:53:49 PM GMT-IP address:107.77.199.114 Document e-signed by Brian Turner(bturner@nrcc.com) Signature Date:2019-01-04-7:54:18 PM GMT-Time Source:server-IP address: 107.77.199.114 Document emailed to Katherine Cutts(kcutts@nrcc.com)for signature 2019-01-04-7:54:19 PM GMT Document viewed by Katherine Cutts(kcutts@nrcc.com) 2019-01-04-7:54:40 PM GMT-IP address:12.181.21.10 Document e-signed by Katherine Cutts(kcutts@nrcc.com) Signature Date:2019-01-04-7:54:58 PM GMT-Time Source:server-IP address:12.181.21.10 0 Signed document emailed to Katherine Cutts(kcutts@nrcc.com), Brian Turner(bturner@nrcc.com) and Katherine Cutts(katherine.cuffs@swsenvironmental.com) 2019-01-04-7:54:58 PM GMT Adobe Sign Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. ff 11 � Name of Employee/Signatu�, 7(_1Dved- Title ❑ This form is N/A as No City Funds are associated with this Contract Printed Name Signature } OFFICIAL RECORD CITY SECRETARY FT. WORTH,TX