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HomeMy WebLinkAboutContract 39179 CITY SECETY FINAL - 6/30/09 CON RACT NO 51"1 STATE OF TEXAS § § KNOWN ALL BY THESE PRESENTS: COUNTY OF TARRANT § THIS AGREEMENT, entered into the ,day of ��P I CM �2009 by and between the City of Fort Worth, a home-rule municipal corporation (hereafter called the "City"), situated in Tarrant, Denton, Parker, and Wise Counties, Texas, acting herein by and through Dale Fisseler, its duly authorized City Manager, and Summit Consultants, Inc., a Texas Corporation, an independent contractor (hereafter called "Consultant"). City and Consultant may be referred to herein individually as a Party, or collectively as the Parties. WITNESSETH That for and in consideration of mutual covenants and agreements herein contained, the Parties hereto mutually agree as follows: ARTICLE 1 SERVICES 1.1 Consultant hereby agrees to perform as an independent contractor the services set forth in the Scope of Services (hereafter called "Services") attached hereto as Attachment "A". These services shall be performed in connection with the Fort Worth Convention Center (hereafter called the"Project"). 1.2 Additional services, if any, will be requested in writing by the City. City shall not pay for any work performed by Consultant or its sub-consultants, subcontractors and/or suppliers that has not been ordered in writing. It is specifically agreed that Consultant shall not be compensated for any alleged additional work resulting from oral orders of any person. 1.3 Consultant agrees to provide all labor, materials, equipment and any other items necessary to timely and fully complete the Services described in Attachment "A" hereto in connection with the Project. ARTICLE 2 COMPENSATION 2.1 Consultant 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". However, the total fee paid by the City shall not exceed a total of$15,000.00 unless the City and the Consultant mutually agree in writing upon a fee amount for additional services and/or expenses. 2.2 The Consultant shall provide monthly invoices to the City. Payment for services rendered shall be due within thirty (30) days of the uncontested performance of the particular services so ordered and receipt by the City of Consultant's invoice for payment of same. 2.3 Acceptance by Consultant of said payment shall operate as and shall release the City from all claims or liabilities under this Agreement for anything related to, done, or furnished in connection with the services for which payment is made, including any act or omission of the City in connection with such services. ARTICLE 3 TERM Unless terminated pursuant to the terms herein, this Agreement shall be for a term of one year beginning upon the date of its execution, or until the completion of the subject matter contemplated herein, whichever occurs first. ARTICLE 4 TIME OF COMMENCEMENT AND COMPLETION The Services shall be commenced on or promptly following the execution of this Agreement and shall be completed no later than �-2 P i 30, 2oa`� ( ) days thereafter. ARTICLE 5 CONSULTANT 5.1 Consultant shall supervise and direct the Services, using Consultant's best skill and attention. Consultant represents, covenants and agrees to furnish efficient business administration and superintendence, and to perform the Services in the best way and in the most expeditious and economical manner consistent with the interests of the City. 5.2 Consultant shall perform the Services under this Agreement in accordance with generally accepted national standards of care, skill, diligence and professional competence applicable to professionals engaged in providing similar services in connection with projects of the size and with the amenities of the Project. 5.3 Consultant shall pay all sales, consumer, use and other similar taxes, and secure and pay for all permits and governmental fees, licenses and inspections necessary for the proper execution and completion of the Services. 5.4 All claims which Consultant has or wishes to assert against the City must be presented in writing to the City not later than ten (10) days after Consultant is aware or should have been aware that a claim will or does exist, or such longer time as may be required by law, even though the exact nature of the claim and the amount of the claim may not be determinable at that time. The nature of the claim and the amount of the claim must be presented to the City in writing as soon thereafter as Consultant has or should have had such information, and Consultant hereby waives all claims not presented as provided herein. 5.5 Upon request of the City, Consultant shall submit for the City's review and approval, a schedule ("Schedule") for the performance of the Services. When the Schedule is approved by City, it shall not be exceeded by Consultant except as may be approved in writing by the City. 2 5.6 In connection with Consultant's performance of the Services, Consultant may have access to information relating to the City and the City's business interests ("Information"). In addition, Consultant will have access to materials, records, data, drawings, specifications, engineering documents and other documents produced by, or coming into possession of Consultants or its subcontractors in connection with the performance of the Services ("Documents"). All Information and Documents shall be maintained in absolute confidence, and Consultant shall not at any time, without the City's prior written consent, duplicate, publicize, or divulge to anyone any portion of such Information and Documents, except for the purpose of carrying out the Services pursuant to this Agreement. The Information and Documents will be and will remain the sole property of the City, and the City owns and retains all common law, statutory and other reserved rights relating thereto, including, but not limited to, all copyrights to the Information and Documents, which are hereby conveyed to the City by Consultant. Consultant shall promptly deliver to the City the originals and all copies of the Information and Documents, whether supplied to it by the City or produced by it or its subcontractors, upon termination of this Agreement for any reason or upon completion of the Services. 5.7 If required by the Agreement, Consultant will furnish General Representation during construction according to the scope defined for these services. Consultant will visit the job site with the frequency and number of trips defined in the Agreement to observe the progress and the quality of work. ARTICLE 6 SUBCONTRACTS Consultant shall not employ any subcontractor and/or sub-consultant unless previously approved in writing by the City. The subcontracting of any of the Services shall not relieve Consultant of any of it liabilities or responsibilities under this Agreement. Consultant shall make prompt payment to its subcontractors for Services performed and/or materials supplied. ARTICLE 7 TIME Time is of the essence in this Agreement. Consultant shall expedite the Services and achieve completion within the time set forth in Articles 3 and 4 hereof and the Schedule, if any. ARTICLE 8 INDEPENDENT CONTRACTOR Consultant shall operate hereunder as an independent contractor, and not as an officer, agent, servant, or employee of the City. Consultant shall have exclusive control of and the exclusive right to control the details of its work to be performed hereunder and all persons performing same, and shall be solely responsible for the acts and omissions of its officers, agents, employees, contractors and subcontractors. The doctrine of respondeat superior shall not apply as between the City and Consultant, its officers, agents, employees, contractors, and subcontractors, and 3 nothing herein shall be construed as creating a partnership or joint venture between the City and Consultant. ARTICLE 9 PROFESSIONAL COMPETENCE AND INDEMNIFICATION 9.1 Work performed by Consultant shall comply in all aspects with all applicable local, state and federal laws and with all applicable rules and regulations promulgated by the local, state and national boards, bureaus and agencies. Approval by the City shall not constitute or be deemed to be a release of the responsibility and liability of Consultant or its officers, agents, employees, contractors and subcontractors for the accuracy and competency of its services performed hereunder. 9.2 In this connection, Consultant shall indemnify, hold harmless and defend the City and its officers, agents, servants and employees from and against any and all claims or suits for property damage or loss and/or personal injury, including death, to any and all persons of whatsoever kind or character, including but not limited to employees of Consultant, Consultant's subcontractors, employees of Consultant's subcontractors, and all other persons performing work incident to this Agreement which may rise out of or be connected directly or indirectly with performance of this Agreement. Consultant shall likewise indemnify, and hold harmless, the City for any and all injury or damage to City property arising out of, or in connection with, any and all acts or omissions of Consultant, its officers, agents, employees or subcontractors. ARTICLE 10 INSURANCE 10.1 Consultant shall not commence work under this Agreement until it has obtained all insurance required under this Article and the City has approved such insurance, nor shall Consultant allow any subcontractor to commence work on its subcontract until all similar insurance of the subcontractor has been so obtained and approval given by the City; provided, however, Consultant may elect to add any sub-consultant as an additional insured under its liability policies. Professional Liability $1,000,000 each occurrence $2,000,000 aggregate (may be provided by endorsement to the Commercial Liability Policy) Commercial General Liability $1,000,000 each occurrence $2,000,000 aggregate Automobile Liability $1,000,000 each accident (or reasonably equivalent limits of coverage if written on a split limits basis). Coverage shall be on any vehicle used in the course of the Project. 4 Worker's Compensation Coverage A: statutory limits Coverage B: $100,000 each accident $500,000 disease—policy limit $100,000 disease—each employee 10.2 Additional Insurance Requirements a. Except for employer's liability insurance coverage under Consultant's worker's compensation insurance policy, the City, its officers, employees and servants shall be endorsed as an additional insured on Consultant's insurance policies. b. Certificates of insurance shall be delivered to: Kirk Slaughter, Director Public Events Department 111 Houston Street Fort Worth, Texas 76102 c. Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirements specified herein. d. Each insurance policy shall be endorsed to provide the City a minimum thirty days notice of cancellation, non-renewal, and/or material change in policy terms or coverage. A ten days notice shall be acceptable in the event of non-payment of premium. e. Insurers must be authorized to do business in the State of Texas and have a current A.M. Best rating of A: VII or equivalent measure of financial strength and solvency. f. Other than worker's compensation insurance, in lieu of traditional insurance, City may consider alternative coverage or risk treatment measures through insurance pools or risk retention groups. The City must approve in writing any alternative coverage. g. Workers' compensation insurance policy(s) covering employees employed on the Project shall be endorsed with a waiver of subrogation providing rights of recovery in favor of the City. h. City shall not be responsible for the direct payment of insurance premium costs for Consultant's insurance. i. Consultant's insurance policies shall each be endorsed to provide that such insurance is primary protection and any self-funded or commercial coverage maintained by City shall not be called upon to contribute to loss recovery. 5 j. In the course of the Agreement, Consultant shall report, in a timely manner, to the City's officially designated contract administrator any known loss occurrence which could give rise to a liability claim or lawsuit or which could result in a property loss. k. Consultant's liability shall not be limited to the specified amounts of insurance required herein. 1. Upon the request of the City, Consultant shall provide complete copies of all insurance policies required by these Agreement documents. ARTICLE 11 TRANSFER OR ASSIGNMENT The City and Consultant each bind themselves, and their lawful successors and assigns, to this Agreement. Consultant, its lawful successors and assigns, shall not assign, sublet or transfer any interest in this Agreement without prior written consent of the City. ARTICLE 12 TERMINATION OF CONTRACT 12.1 The City may terminate this Agreement for its convenience on 30 days' written notice. Either the City or the Consultant for cause may terminate this Agreement if either Party fails substantially to perform through no fault of the other and does not commence correction of such nonperformance with 5 days of written notice and diligently complete the correction thereafter. 12.2 If the City chooses to terminate this Agreement under Article 12, upon receipt of notice of termination, Consultant shall discontinue services rendered up to the date of such termination and the City shall compensate Consultant based upon calculations in Article 2 of this Agreement and Exhibit`B" attached hereto and incorporated herein. 12.3 All reports, whether partial or complete, prepared under this Agreement, including any original drawings or documents, whether furnished by the City, its officers, agents, employees, consultants, or contractors, or prepared by Consultant, shall be or become the property of the City, and shall be furnished to the City prior to or at the time such services are completed, or upon termination or expiration of this Agreement. 12.4 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 or any kind whatsoever, except as to the portions of the payments herein agreed upon which funds shall have been appropriated. 6 ARTICLE 13 RIGHT TO AUDIT 13.1 Consultant 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 any directly pertinent books, documents, papers and records of Consultant involving transactions relating to this Agreement. Consultant agrees that the City shall have access during normal working hours to all necessary facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. City shall give Consultant reasonable advance notice of intended audits. 13.2 Consultant further agrees to include in all its subcontracts hereunder, a provision to the effect that the subcontracting consultant agrees that the City shall, until the expiration of three (3) years after final payment under the subcontract, have access to and the right to examine any directly pertinent books, documents, papers and records of such sub-consultant, involving transactions to the subcontract, and further, that City shall have access during normal working hours to all sub-consultant facilities, and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this article. The City shall give Consultant and any sub-consultant reasonable advance notice of intended audit. 13.3 Consultant and sub-consultants agree to photocopy such documents as may be requested by the City. The City agrees to reimburse Consultant for the cost of copies at the rate published in the Texas Administrative Code in effect as of the time copying is performed. ARTICLE 14 OBSERVE AND COMPLY Consultant 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. Consultant 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. ARTICLE 15 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. This Agreement shall be construed in accordance with the laws of the State of Texas. 7 ARTICLE 16 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. ARTICLE 17 SEVERABILITY The provisions of this Agreement are severable, and if any word, phrase, clause, sentence, paragraph, section or other part of this Agreement or the application thereof to any person or circumstance shall ever be held by any court of competent jurisdiction to be invalid or unconstitutional for any reason, the remainder of this Agreement and the application of such word, phrase, clause, sentence, paragraph, section, or other part of this Agreement to other persons or circumstances shall not be affected thereby and this Agreement shall be construed as if such invalid or unconstitutional portion had never been contained therein. ARTICLE 18 NOTICES Notices to be provided hereunder shall be sufficient if forwarded to the other Party by hand- delivery or via U.S. Postal Service certified mail return receipt requested, postage prepaid, to the address of the other Party shown below: City of Fort Worth Attn: Kirk Slaughter Public Events Department 111 Houston Street Fort Worth, Texas 76102 Consultant: Garrett S. Brown, P.E., CxA Summit Consultants, Inc. 1300 Summit Avenue, Suite 500 Fort Worth, Texas 76102 ARTICLE 19 HEADINGS The headings contained herein are for the convenience in reference and are not intended to define or limit the scope of any provision of this Agreement. 8 ARTICLE 20 COUNTERPARTS This Agreement may be executed in one or more counterparts and each counterpart shall, for all purposes, be deemed an original, but all such counterparts shall together constitute but one and the same instrument. ARTICLE 21 PUBLIC INFORMATION ACT Consultant understands and acknowledges that the City is a public entity under the laws of the State of Texas and as such, all documents held by the City are subject to disclosure under Chapter 552 of the Texas Government Code. Consultant shall clearly indicate to the City what information it deems proprietary. If the City is required to disclose any documents that may reveal any Consultant Proprietary Information to third parties under the Texas Government Code, or by any other legal process, law, rule or judicial order by a court of competent jurisdiction, the City will notify Consultant prior to disclosure of such documents, and give Consultant the opportunity to submit reasons for objections to disclosure. The City agrees to restrict access to Consultant's information to those persons within its organization who have a need to know for purposes of management of this Agreement. The City agrees to inform its employees of the obligations under this paragraph and to enforce rules and procedures that will prevent any un- authorized disclosure or transfer of information. The City will use its best efforts to secure and protect Company's information in the same manner and to the same degree it protects its own proprietary information; however, the City does not guarantee that any information deemed proprietary by Consultant will be protected from public disclosure if release is required by law. The foregoing obligation regarding confidentiality shall remain in effect for a period of three (3) years after the expiration of this Agreement. (Remainder of Page Intentionally Left Blank) 9 IN WITNESS THEREOF,the parties hereto have made and executed this Agreement in multiple originals the day and year first above written, in Fort Worth, Tarrant County, Texas. CITY OF FORT WORTH: CONSULTANT: SUMMIT CONSULTANTS,INC. Tom Higgins LIjeft S.Brown Assistant City Manager Principal Title RECO NAIENDED: a'g- Kirk Slaughter,Director Public Events Department APPROVED AS TO FORM AND LEGALITY: Che K. Byles Assistant City Attorney ATTEST: Marty Hendrix City Secretary Date M&C No. NO M&C RI;QUIREID �• y 10 ATTACHMENT "A" SCOPE OF SERVICES The following is the Scope of Services for the Professional Services Agreement between the City of Fort Worth (the "City") and Summit Consultants, Inc. ("Consultant") for the Fort Worth Convention Center ("FWCC"). The Consultant will provide an engineering assessment of insufficient kitchen hood performance. The proposal will include the provision of mechanical electrical and plumbing engineering services for the referenced project. BASIC SERVICES: Summit will provide a study of options for remedy of an existing kitchen hood at the Fort Worth Convention Center. Consulting engineering services and deliverables will include: 1. Review of all existing conditions, existing kitchen equipment, and existing mechanical ventilation systems. 2. Review with kitchen staff of current and future needs, and options for kitchen equipment (that requiring exhaust) layout. 3. Develop concepts and options with construction cost estimates for review with FWCC personnel. 4. Develop construction documents and specifications suitable for bidding, including preparation of draft and RFP documents. 5. Support the bidding and contractor selection process which will include, but not be limited to, assisting and attending proposers' conference and walk through requirements and coordinating final proposer interviews. 6. Provide construction administration during construction. 11 ATTACHMENT "B" FEE SCHEDULE Fees and Payments Consultant proposes to complete the scope of services on a lump sum basis including reimbursable expenses described in more detail below. The lump sum fee will be $15,000.00. Reimbursable expenses Reimbursable expenses will include: 1. Long distance telephone costs in connection with the project. 2. Travel outside of Tarrant or Dallas counties. 3. Courier, postal or special delivery costs. 4. Hotel, motel, airfare, meals, and transportation costs when outside Tarrant or Dallas counties. Payment for services Consultant will submit invoices for services completed and will be paid according to the scheduled fee distribution listed below. Services will be completed in accordance with the approved City Schedule as referenced in Section 5.5 of the Agreement. Scheduled Fee Distribution of the $15,000.00 Lump Sum 1. 20%for completion of Attachment"A" Items 1-2. 2. 20% for completion of Attachment"A" Item 3. 3. 20% for completion of Attachment"A" Item 4. 4. 20% for completion of Attachment"A" Item 5 5. 20% for completion of Attachment"A" Item 6. Payment for expenses Consultant will submit monthly invoices for reimbursable expenses. Reimbursable expenses will be billed at the actual cost of travel and living expenses, purchase or rental of specialized equipment, photographs and renderings, document reproduction, postage and delivery costs, long distance telephone and facsimile charges, additional service consultants, and other project related expenses. Payment is due upon receipt of invoice. The City reserves the right to require additional information regarding expenses in writing before paying the Consultant. Termination Calculations Consultant agrees that, if the City terminates the Agreement under Article 12, then it will be paid only for work completed under the Scheduled Fee Distribution for the $15,000.00 lump sum as outlined in this fee schedule (Schedule `B"). 12