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HomeMy WebLinkAboutContract 52429 C7Y PECRETARY COJT� CTNO._ 59ga9 PROFESSIONAL SERVICES AGREEMENT 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, Parker, Denton, and Wise Counties, Texas, as executed by Jesus "Jay" Chapa, its duly authorized Assistant City Manager,and Skalar Incorporated("Vendor"),a Corporation,as executed by Leo Struycken, its duly authorized President, each individually referred to as a "party" and collectively referred to as the "parties." CONTRACT DOCUMENTS: The Contract documents shall include the following: 1. This Agreement for Professional Services 2. Exhibit A—Scope of Services and Payment Schedule 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. Vendor hereby agrees to provide the City with preventative maintenance service for the SP-2000 BOD Analyzer. Attached hereto and incorporated for all purposes incident to this Agreement is Exhibit"A,"Scope of Services, more specifically describing the services to be provided hereunder. Vendor warrants that it will exercise reasonable skill, care and diligence in the performance of its services and will carry out its responsibilities in accordance with customarily accepted professional practices and applicable laws. 2. TERM. This Agreement shall begin on August 09, 2019 ("Effective Date") and shall expire on August 08, 2024,unless terminated earlier in accordance with this Agreement("Initial Term"). City shall have the option, in its sole discretion,to renew this Agreement under the same terms and conditions,for up to four(4)one-year renewal options, at City's sole discretion. 3. COMPENSATION. The City shall pay Vendor in accordance with the fee schedule of Vendor personnel who perform services under this Agreement in accordance with the provisions of this Agreement and Exhibit "A,"— Price Schedule. Total payment made under this Agreement shall be in the amount of Twenty-Seven Thousand One Hundred Dollars ($27,100.00). Vendor shall not perform any additional services or bill for expenses incurred for City not specified by this Agreement unless City requests and approves in writing the additional costs for such services. City shall not be liable for any additional expenses of Vendor not specified by this Agreement unless City first approves such expense in writing. OFFICIAL RE�ORD SoNl CITY SECRETARY FT. WORTH,TI 4. TERMINATION. 4.1. Written Notice. The City or Vendor 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 Vendor 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 of the payments herein agreed upon for which funds shall 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 Vendor for services actually rendered up to the effective date of termination and Vendor 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. 5. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION. Vendor hereby warrants to the City that Vendor has made full disclosure in writing of any existing conflicts of interest related to Vendor's services under this Agreement.In the event that any conflicts of interest arise after the Effective Date of this Agreement,Vendor hereby agrees promptly to make full disclosure to the City in writing upon its first knowledge of such conflict. Vendor, for itself and its officers, agents and employees, further agrees that it shall treat all information provided to it by the City as confidential and shall not disclose any such information to a third party without the prior written approval of the City, except to the extent that such disclosure is required by applicable law or court order and then only after prior notice to and consultation with the City. Vendor 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. Vendor shall notify the City promptly if the security or integrity of any City information has been compromised or is believed to have been compromised. 6. RIGHT TO AUDIT. Vendor agrees that the City shall, until the expiration of three(3)years after final payment under this Agreement, have access to and the right to examine at reasonable times any directly pertinent books, documents,papers and records of the Vendor involving transactions relating to this Agreement at no additional cost to the City. Vendor agrees that the City shall have access during normal working hours to all necessary Vendor 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 Vendor at least five (5) business days' advance notice of intended audits. Vendor 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, 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. The audit rights conferred by this section shall not permit the City to access records related to the pricing of fixed-price or lump sum amounts, the build-up of agreed rates or unit prices, or Vendor's estimating records. 7. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Vendor shall operate as an independent contractor as to all rights and privileges granted herein, and not as agent, representative or employee of the City. Subject to and in accordance with the conditions and provisions of this Agreement, Vendor 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. Vendor acknowledges that the doctrine of respondeat superior shall not apply as between the City, its officers, agents, servants and employees, and Vendor, its officers, agents, employees, servants, contractors and subcontractors. Vendor further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Vendor. 8. LIABILITY AND INDEMNIFICATION. VENDOR SHALL RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS CITY AND ITS OFFICERS, AGENTS AND EMPLOYEES FROM AND AGAINST ALL DAMAGES, CLAIMS, LOSSES, DEMANDS, SUITS, JUDGMENTS AND COSTS, INCLUDING REASONABLE ATTORNEY'S FEES AND EXPENSES, FOR PERSONAL INJURIES (INCLUDING DEATH) AND THIRD-PARTY PROPERTY DAMAGE TO THE EXTENT CAUSED BY THE NEGLIGENT ACT OR OMISSION OF VENDOR,ITS OFFICERS,AGENTS,EMPLOYEES,OR SUBCONTRACTORS IN THE PERFORMANCE OF SERVICES UNDER THIS AGREEMENT. THE VENDOR SHALL NOT BE OBLIGATED OR LIABLE TO THE CITY FOR ANY CLAIM ARISING IN CONNECTION WITH THIS AGREEMENT EXCEPT ITS OWN NEGLIGENCE THAT IS THE FAULT OF THE VENDOR, AND/OR ITS AGENTS, EMPLOYEES, OR SUBCONTRACTORS, OR OTHERS FOR WHOM VENDOR IS LEGALLY RESPONSIBLE. NOTWITHSTANDING THE FOREGOING, VENDOR AGREES, TO THE FULLEST EXTENT PERMITTED BY LAW, TO INDEMNIFY AND HOLD HARMLESS CITY AND ITS OFFICERS, AGENTS AND EMPLOYEES AGAINST COSTS, DAMAGES, OR LOSSES, INCLUDING REASONABLE ATTORNEYS'FEES AND EXPENSES,RESULTING FROM CLAIMS BY THIRD PARTIES FOR PERSONAL INJURIES (INCLUDING DEATH) OR PROPERTY DAMAGE TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OF VENDOR, ITS OFFICERS, AGENTS, EMPLOYEES, OR SUBCONTRACTORS IN THE PERFORMANCE OF PROFESSIONAL DESIGN AND ENGINEERING SERVICES UNDER THIS AGREEMENT. VENDOR SHALL NOT BE OBLIGATED TO DEFEND OR INDEMNIFY CITY AND ITS OFFICERS,AGENTS AND EMPLOYEES FOR THEIR RESPECTIVE NEGLIGENCE OR WILLFUL MISCONDUCT. 9. ASSIGNMENT AND SUBCONTRACTING. Vendor 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 Vendor under which the assignee agrees to be bound by the duties and obligations of Vendor under this Agreement,and Vendor shall have no further liability or obligations under the assigned portion of the Agreement. If the City grants consent to a subcontract, the Vendor shall require such subcontractor to execute a written agreement with the Vendor referencing this Agreement and requiring subcontractor to be bound by duties and obligations substantially similar to those of the Vendor under this Agreement as such duties and obligations may apply to the subcontractor's scope of services.The Vendor shall provide the City with a fully executed copy of any such subcontract upon request,with any financial and proprietary information redacted. 10. INSURANCE. Vendor shall provide the City with certificate(s) of insurance documenting policies of the following coverage limits that are to be in effect prior to commencement of any services pursuant to this Agreement: 10.1 Coverage and Limits (a) Commercial General Liability $1,000,000 Each Occurrence $2,000,000 Aggregate (b) Automobile Liability $1,000,000 Each accident on a combined single limit basis or $250,000 Bodily injury per person $500,000 Bodily injury per occurrence $100,000 Property damage Coverage shall be on any vehicle used by the Vendor, 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 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 Certificates. Certificates of Insurance evidencing that the Vendor has obtained all required insurance shall be delivered to the City prior to Vendor proceeding with any services pursuant to this Agreement.All policies except Workers'Compensation and Professional Liability shall be endorsed to name the City as an additional insured thereon, as its interests may appear. All policies except Professional Liability and Employer's Liability shall contain a Waiver of Subrogation for the benefit of the City of Fort Worth.The term City shall include its employees, officers, officials, agent, and volunteers in respect to the contracted services. Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement. A minimum of thirty (30) days' notice of cancellation of coverage shall be provided to the City. Ten (10) days' notice shall be acceptable in the event of non-payment of premium. Such terms shall be endorsed onto Vendor's insurance policies. 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. 10.3 Waiver of Subrogation for Property Insurance. The City and Vendor waive all rights against each other and their officers, officials, directors, agents, or employees for damage covered by builder's risk insurance during and after the completion of Vendor's services. If the services result in a construction phase related to the project, a provision similar to this shall be incorporated into all construction contracts entered into by the City, and all construction contractors shall be required to provide waivers of subrogation in favor of the City and Vendor for damage or liability covered by any construction contractor's policy of property insurance, including builder's risk provided by such contractor, if applicable. 11. COMPLIANCE WITH LAWS,ORDINANCES,RULES AND REGULATIONS. Vendor agrees to comply with all applicable federal, state and local laws, ordinances, rules and regulations. If the City notifies Vendor of any violation of such laws, ordinances, rules or regulations,Vendor shall promptly desist from and correct the violation. 12. NON-DISCRIMINATION COVENANT. Vendor, for itself, its personal representatives, assigns, subcontractors and successors in interest, as part of the consideration herein, agrees that in the performance of Vendor'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. 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 VENDOR: City of Fort Worth Skalar Incorporated Attn: Chris Harder, Water Director Attn: Leo Struycken, President 200 Texas Street 3100 Smith Farm Road Fort Worth TX 76 1 02-63 1 1 Matthews,NC 28104 Facsimile: (817) 392-8654 Facsimile: (704)973-2499 14. GOVERNMENTAL POWERS. It is understood and agreed that by execution of this Agreement,the City does not waive or surrender any of its governmental powers. 15. NO WAIVER. The failure of the City or Vendor 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 Vendor's respective right to insist upon appropriate performance or to assert any such right on any future occasion. 16. GOVERNING LAW/VENUE. This Agreement shall be construed in accordance with the internal laws of the State of Texas. If any action, whether real or asserted, at law or in equity, is brought on the basis 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. 17. SEVERABILITY. If any provision of this Agreement is held to be invalid, illegal or unenforceable,the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 18. FORCE MAJEURE. The City and Vendor 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 (force majeure), 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. 19. HEADINGS NOT CONTROLLING. Headings and titles used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 20. 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. 21. AMENDMENTS/MODIFICATIONS/EXTENSIONS. No extension, modification or amendment of this Agreement shall be binding upon a party hereto unless such extension, modification, or amendment is set forth in a written instrument, which is executed by an authorized representative and delivered on behalf of such party. 22. ENTIRETY OF AGREEMENT. This Agreement contains all of the covenants, statements, representations and promises agreed to by the parties. To the extent of any conflict,this Agreement supersedes the terms,conditions,and representations set forth in the City's Request for Proposals,Vendor's Proposal and revised cost. No agent of either party has authority to make,and the parties shall not be bound by,nor liable for,any covenant, statement,representation or promise not set forth herein. The parties may amend this Agreement only by a written amendment executed by both parties. 23. 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. The other party is fully entitled to rely on this warranty and representation in entering into this Agreement. 24. PROHIBITION ON CONTRACTING WITH COMPANIES THAT BOYCOTT ISRAEL Contractor acknowledges that in accordance with Chapter 2270 of the Texas Government Code, the City is prohibited from entering into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1)does not boycott Israel;and(2)will not boycott Israel during the term of the contract. The terms"boycott Israel"and"company"shall have the meanings ascribed to those terms in Section 808.001 of the Texas Government Code. By signing this contract, Contractor certifies that Contractor's signature provides written verification to the City that Contractor: (1)does not boycott Israel;and(2)will not boycott Israel during the term of the contract. IN W ESS WHEREOF,the parties hereto have executed this Agreement in multiples this*-day of ` 19. CIT_ F FORT WO TH 0— By: • Jesus"J Ch a Assistant City Manag Date: 114 FO.... •....... ..� ATTEST: ;_ By:_ Mary K r ' City Secretary y `` .............. r_FT. OFFICIAL RECORD,SECRETARY ORTH, TX APPROVED AS TO FORM AND LEGALITY: By: . PA A Christa op z Reynolds Sr. Assistant City Attorney APPROVAL RRECOO MM LADED: By: Ce l.1/' Chris Harder Director, Water No M&C Required Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, in dig ensurin all or nee and reporting requirements. Name of Emplo a [Patricia tanley] Management Anaylst 11 Title SKALA('R�INCORPORATED By:— Date:. ;.M.. r��� �_ )C'G WI---E�SS: By Print: rune .._l►_'�.r-on e-Y1 OFFICIAL RECORD CITY SECRETARY FT. WORTH,TX EXHIBIT A SKALAR, Inc. February 8, 2019 Ms. Jamie Dilday Quotation City of Fort Worth 2600 SE Loop 820 Q-DIJACI-SC2 Fort Worth, TX 76140 Yearly Skalar Service Contract for the SP-2000 BOD Analyzer: No. Part Number Description Unit Price Qty Amount(US$ Skalar Service Contract: fixed price yearly service contract for the Skalar BOD Analyzer. Valid 8/9/19 through 8/8/20. 1 SA SERV 1-01 D Includes one annual PM(see details/guidelines enclosed)and one $ 4855.00 1 $ 4,855.00 emergency visit. Does include all labor and travel expenses. Does not include parts and consumables. Skalar Service Contract: fixed price yearly service contract for the Skalar BOD Analyzer. Valid 8/9/20 through 8/8/21. 2 SA SERV2-01 D Includes one annual PM(see details/guidelines enclosed)and one $ 4995.00 1 $ 4,995.00 emergency visit. Does include all labor and travel expenses. Does not include parts and consumables. Skalar Service Contract: fixed price yearly service contract for the Skalar BOD Analyzer. Valid 8/9/21 through 8/8/22. 3 SA SERV3-01 D Includes one annual PM(see details/guidelines enclosed)and one $ 5495.00 1 $ 5,495.00 emergency visit. Does include all labor and travel expenses. Does not include parts and consumables. Skalar Service Contract: fixed price yearly service contract for the Skalar BOD Analyzer. Valid 8/9/22 through 8/8/23. 4 SA SERV4-01 D Includes one annual PM(see details/guidelines enclosed)and one $ 5800.00 1 $ 5,800.00 emergency visit. Does include all labor and travel expenses. Does not include parts and consumables. Skalar Service Contract: fixed price yearly service contract for the Skalar BOD Analyzer. Valid 8/9/23 through 8/8/24. 5 SA SERV5-01 D Includes one annual PM(see details/guidelines enclosed)and one $ 5995.00 1 $ 5,955.00 emergency visit. Does include all labor and travel expenses. Does not include parts and consumables. Skalar Customer Sugnort Maintenance Agreement Under this plan,you purchase emergency trips, as required,to maintain your system according to published performance specifications. All field work done under this fixed-price option carries a 30-day warranty. if the specific repair or correction fails, Skalar will absorb theentire rework cost, including parts, field labor, and transportation. Specific Terms And Conditions: This service agreement Includes labor,travel and living expenses. Parts and consumables are not included. Accessories and third party items are not covered unless specified. The agreement includes emergency visits during regularbusiness hours to meet published performance specifications for service other than operator function, damage by third party, acts of nature, etc. This agreement applies only to standard configurations. All Service Agreement rates are based on providing service during hours of coverage as stated in this contract program. Customer is invoiced for the agreement upon receipt by Skalar of a purchase order. Accessories: Accessories may by covered on service agreement only if primary system is enrolled. Accessories must be covered under same type of service contract as the main instrument. Third Party Equipment Maintenance: Certain systems contain sub-systems or accessories such as, computers that are not manufactured by Skalar. We are committed to providing total customer supportand service contracts for third party items will be quoted upon request. Consumables• Consumable parts used in everyday operation of equipment such as sample holders,pump tubes, dialysis membranes, digestion tubes, photometer lamps, flowcells,coils, chart paper, printer paper, manuals,tools, etc. are not covered. System Moves: Movement of a system is not covered under this Maintenance Agreement. Parts: All parts are charged at list price and are warranted for a period of 30 days. Loaner equipment: All loaner equipment will be provided to the customer free of charge, excluding shipping charges. Skalar may reserve the right to request a purchase order for the loaner unit if it is not returned to Skalar in a reasonable timely manner. Period of Coveraze: 8:00 a.m. to 5:00 p.m., Monday through Friday, local time, excluding Skalar holidays. The plan is offered as an extension of the original manufacturer's warranty and begins immediately upon expiration of same. It will be in effect for a period of one year. Responsibilities of Customer: A. Adverse Environments: Products operated in corrosive environments and in conditions outside Skalar's environmental site specifications(as defined in the Product Manual)may have their performance adversely affected and are therefore not guaranteed by Skalar.Skalar will charge customer on a time and material basis to repair product if it should malfunction as a result of operation outside prescribed site specifications. B. Adverse Environments: Customer will provide Skalar with the following: 1.Access to the products covered. 2.Adequate work space and facilities within a reasonable distance of the products. 3.Access to,and use of, all information and facilities determined necessary by Skalar to service the products(including telephone). C. Data Reconstruction: Customer is responsible for maintaining a procedure to reconstruct any lost or altered files,data, or programs. D. Operating and Maintenance Procedures: Customer will follow routine operator and maintenance procedures as specified inthe Skalar product operator manuals. Customer routine maintenance includes,but is not limited to,functions such as changing pumptubing, and other routine maintenance functions normally associated with the operation of the instrument. E. Operating Supplies: Customer is responsible for providing operating supplies, consumables,and usage dependent items (for example; recorder paper and pens). F. Customer Representative: A Customer representative will be present at the site at all times when service is being performed by Skalar,on-site or by telephone. Skalar personnel will not enter or remain at the facility in the absence of a customer representative. G. Data Security: Customer is responsible for the security of its confidential,proprietary,and classified information. H. Usage of Toxic Substances: The Customer shall notify Skalar in writing if any product covered by this agreement is used for analysis of toxic substances(LDL of I00mg/kg of body weight,or less). Skalar equipment used for analysis of toxic substances should be decontaminated before Skalar is called for service.When instruments cannot be decontaminated,the customer will perform the repair under the supervision of a Skalar representative. L Service Calls: Prior to placing a service request,Customer may be required to run diagnostic tests as determined by Skalar(i.e.,Skalar-supplied self-test or operator-induced performance test). If services are rendered for a malfunction which is caused by an application contamination,non-Skalar detectors/devices, defective gases/samples;or if service efforts to isolate the cause of a malfunction are increased as a result of the afore mentioned, Skalar will invoice the Customer on a time and material basis for the additional service.