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HomeMy WebLinkAboutContract 55646CSC No. 55646 BIOMONITORING SERVICES AGREEMENT This BIOMONITORING 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 Dana Burghdoff, its duly authorized Assistant City Manager, and Bio-Aquatic Testing, Inc. ("Provider "), a Corporation, as executed by Andy Solomon, its duly authorized Director of Business Development, 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 Biomonitoring Services 2. Exhibit A— Scope of Services 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 Agreement shall control. 1. SCOPE OF SERVICES. Provider hereby agrees to provide the City with Bio-Monitoring Services for the City of Fort Worth. 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. Provider 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 October O1, 2020 ("Effective Date") and shall expire on September 30, 2021, 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 Provider in accordance with the fee schedule of Provider 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 Fifty-Thousand Dollars ($50,000.00). Provider 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 Provider not specified by this Agreement unless City first approves such expense in writing. 4. TERMINATION. 4.1. Written Notice. OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX The City or Provider 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-a�propriation 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 Provider 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 Provider for services actually rendered up to the effective date of termination and Provider 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. Provider hereby warrants to the City that Provider has made full disclosure in writing of any existing conflicts of interest related to Provider's services under this Agreement. In the event that any conflicts of interest arise after the Effective Date of this Agreement, Provider hereby agrees promptly to make full disclosure to the City in writing upon its first knowledge of such conflict. Provider, 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. Provider 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. Provider 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. Provider 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 Provider involving transactions relating to this Agreement at no additional cost to the City. Provider agrees that the City shall ha�e access duririg normal working hours to all necessary Provider 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 Provider at least five (5) business days' advance notice of intended audits. Provider further agrees to include in all its subcontractor agreements hereunder a provision to the effect that the subcontractor agrees that the City shall, untit expiration of three (3) years after iinal 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 Provider's estimating records. 7. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Provider 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, Provider 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, einployees, contractors and subcontractors. Provider acknowledges that the doctrine of respondeat superior shall not apply as between the City, its officers, agents, servants and employees, and Provider, its officers, agents, employees, servants, contractors and subcontractors. Provider further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Provider. 8. LIABILITY AND INDEMNIFICATION. A. Provider shall comply with all applicable Environmental Requirements. Environmental Requirements shall mean all applicable statutes, regulations, rules, plans, authorizations, concessions, franchises, and similar items, as they are now or as they may later be amended, 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: 1. 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, storm water, 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 2. All requirements pertaining to the protection of the health and safety of employees or the public. B. PROVIDER SHALL RELEASE, INDEMNIFY, REIMBURSE, DEFEND, AND HOLD HARMLESS, CITY, 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, ARISING OUT OF THE WORK AND SERVICES TO BE PERFORMED HEREUNDER BY PROVIDER, ITS OFFICERS, AGENTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, OR INVITEES, INCLUDING DAMAGES, LOSS, INJURY OR DEATH TO THE EXTENT CAUSED BY ANY NEGLIGENT ERROR, OMISSION, DEFECT, OR DEFICIENCY IN THE PERFORMANCE OF PROVIDER'S SERVICES WITH THIS AGREEMENT. PROVIDER 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 NOTWITHSTANDING THE FOREGOING, PROVIDER AGREES, TO THE FULLEST EXTENT PERMITTED BY LAW, TO INDEMNIFY AND HOLD HARMLESS CITY AND ITS OFFICERS, AGENTS AND EMPLOYEES AGAINST COSTS, DAMAGES, OR LOS5ES, INCLUDING REASONABLE ATTORNEYS' FEES AND EXPENSES, RESULTING FROM CLAIMS BY THIRD PARTIES FOR PERSONAL INJ[TRIES (INCLUDING DEATH) OR PROPERTY DAMAGE TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OF PROVIDER , ITS OFFICERS, AGENTS, EMPLOYEES, OR SUBCONTRACTORS IN THE PERFORMANCE OF BIOMONITROING SERVICES UNDER TffiS AGREEMENT. PROVIDER SHALL NOT BE OBLIGAT�D TO DEFEND OR INDEMNIFY CITY AND ITS OFFICERS, AGENTS AND EMPLOYEES FOR THEIR RESPECTIVE NEGLIGENCE OR WILLFUL MISCONDUCT. C. Environmental Indemnification. PROVIDER DOES HEREBY RELEASE, INDEMNIFY, REIMBURSE, DEFEND, AND HOLD HARMLESS THE CITY, ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL ENVIRONMENTAL DAMAGES AND THE VIOLATION OF ANY AND ALL ENVIRONMENTAL REQUIREMENTS RESULTING FROM THE HANDLING, COLLECTION, TRANSPORTATION, STORAGE, DISPOSAL, TREATMENT, RECOVERY, AND/OR REUSE, BY ANY PERSON, OF THE MATERIAL UNDER THIS AGREEMENT, TO THE EXTENT SAID ENVIRONMENTAL DAMAGES OR THE VIOLATION OF SAID ENVIRONMENTAL REQUIREMENTS WERE THE RESULT OF ANY ACT OR OMISSION.OF PROVIDER, TTS OFFICERS, AGENTS, EMPLQYEES, OR SUBCONTRACTORS, OR THE JOINT ACT OR OMISSION OF PROVIDER, ITS OFFICERS, AGENTS, EMPLOYEES, OR SUBCONTRACTORS AND ANY OTHER PERSON OR ENTITY EXCLUDING ALL PARTIES INDEMNIFIED HEREUNDER. 9. WARRANTY Provider warrants that it understands the currently known hazards and suspected hazards which are presented to persons, property and the environment by providing the services as referred to in the Provider's Scope of Services. Provider further warrants that it will perform all services under this Agreement 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 Agreement. 10. LICENSES, PERMITS AND FEES Provider agrees to obtain, pay for, and maintain all licenses, permits, certificates, inspections and all other approvals and fees required by law or otherwise necessary to perform the services prescribed hereunder. 11. ASSIGNMENT AND SUBCONTRACTING. Provider 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 Provider under which the assignee agrees to be bound by the duties and obligations of Provider under this Agreement, and Provider shall ha�e no further liability or obligations under the assigned portion of the Agreement If the City grants consent to a subcontract, the Provider shall require such subcontractor to execute a written agreement with the Provider referencing this Agreement and requiring subcontractor to be bound by duties and obligations substantially similar to those of the Provider under this Agreement as such duties and obligations may apply to the subcontractor's scope of services. The Provider shall provide the City with a fully executed copy of any such subcontract upon request, with any financial and proprietary information redacted. 12. INSURANCE. Provider 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: 12.1 Covera�e 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 injuryper person $500,000 Bodily injury per occurrence $100,000 Property damage Coverage shall be on any vehicle used by the Provider, its employees, agents, representatives in tfie course of the providing services under this Agreement. "Any vehicle" shall be any vehicle owned, hired and non-owned. (c) Worker's Compensation Statutary 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. 12.2 Certificates. Certificates of Insurance evidencing that the Provider has obtained all required insurance shall be delivered to the City prior to Provider 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 Provider's insurance policies. Notice shall be sent to the Risk Manager, City of Fort Worth, 200 Texas, Fort Worth, Texas 76102, with copies to the City Attorney at the same address. 13. COMPLIANCE WITH LAWS, ORDINANCES, RULES AND REGULATIONS. Provider agrees to comply with all applicable federal, state and local laws, ordinances, rules and regulations. If the City notifies Provider of any violation of such laws, ordinances, rules or regulations, Provider shall promptly desist from and correct the violation. 14. NON-DISCRIMINATION COVENANT. Provider, for itself, its personal representatives, assigns, subcontractors and successors in interest, as part of the consideration herein, agrees tliat in the performance of Provider'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. 15. NOTICES. Notices required pursuant to the provisions of this Agreement shall be conclusively determined to have been delivered when (1) hand-delivered to tfie 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 PROVIDER : City of Fort Worth Bio-Aquatics Testing, Inc. Attn: Chris Harder, Water Director Attn: Andy Solomon; Director of Business Develp 200 Texas Street 2501 Mayes Road, Suite 100 Fort Worth TX 76102-63ll Carrollton, TX 95006 Facsimile: (817) 392-8654 Facsimile: (972) 242-7749 16. 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. 17. NO WAIVER. The failure of the City or Provider to insist upon the performance of any term or provision of this Agreetnent or to exercise any right granted herein shall not constitute a waiver of the City's or Provider 's respective right to insist upon appropriate performance or to assert any such right on any future occasion. 18. 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. 19. 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. 20. FORCE MAJEURE. The City and Provider 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. 21. 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. 22. REVIEW OF COUNSEL: The parties acknowledge that each party and its counsel ha�e 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. 23. AMENDMENTS / MODIF'ICATIONS / 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. 24. 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, Provider's Proposal and revised cost. No agent of either party has authority to make, and the p�rties 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. 25. 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. 26. 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 ha�e 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 veri�cation to the City that Contractor: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiples this day of , 2020: CITY OF FORT WORTH B� (�R416! gGL{"AlZ//(i{%� . Id �� Dana Burghdoff Assistant City Manager Date: Apr 27, 2021 �4���� ATTEST: �A.O� F OR TQ��a By:���` � � o � ����1 � Mary Kayser P o o� � °=d City Secretary �� o0 0° � d� �00000000000 �� ���� �EXA`'�aa�O'p : OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX A.PPROV�D AS TO FORM By;�hr�sr�� ���P�-�Pv����<,����S.�o�� �x� Christa R. Lopez- Sr. Assistaut City APPROVAL R�C�DMM�Nli1 ���� ;���. �nds�opn��n��d inp��a�oziis�.s�or. By: Cl�ris Harder, P.�. Water Department Director No M&C Reqaired Co��tract Compliance Manager: By signing I acknowledge that I am including ensuring all performance f' r����:Apr2�1i�.31CUl�i Patricia E. Stanley Management Analyst fi BIO—AQUATIC T�STING, By. � �-•. - � N(1'f S n � o nt o•✓ LEGALITY: the person responslble for the monitoring and administration of this contract, ind reporting requirements. ` 4; L �C. /�'" � - , � Y►1 �; ; � � \ ..I . � l� � �_ OFFICIAL RECORD CITY SECRETARY _ - , FT. WORTH, TX . , EXHIBIT A 1.0B10-MONITORING SERVICES 1.1. The Provider shall perform whole-effluent toxicity tests on the Wastewater Treatmenf Plant effluent (Village Creek Water Reclamation Facility Outfall 001) in accordance with the US Environmental Protection Agency (USEPA), and the Texas Commission on Environmental Quality (TCEQ) wastewater discharge permits. The test species and methods shall be conducted in accordance with 40 CFR Part 136 and/or pursuant to the subject discharge permits. 1.2. The Provider shall conduct the following whole-effluent toxicity tests: 1.2.1. Ceriodaphnia dubia chronic:static renewal survival and reproduction test, Environmental Protection Agency (EPA) Method 1002:0 or the most recent update thereof. 1.2.2. Pimephales prometas_(Fathead minnow) chronic static renewal seven (7) day larval survival and growth test, "Short-Term Methods for Estimating the Chronic Toxicity of Effluents and Receiving Waters to Freshwater Organisms", Method 1000.0 EPA/600/4-91/002, or the most recent updatethereof. 1.2.3. Daphnia pulex acute static renewal 24-hour test, "Method for Measuring the Acute Toxicity of Effluents and Receiving Waters to Freshwater and Marine Organisms", EPA/600/4-90/027F, or the most recent update thereof. 1.2.4. Pimephales promelas_(Fathead minnow) acute static renewal 24-hour tests, "Methods for Measuring the Acute Toxicity of Effluents and Receiving Waters to Freshwater and Marine Organisms", EPA/600/4-90/027F, or the most recent update thereof. 1.2.5. Dilution water test indicating the suitability or toxicity of receiving water. 1.3. Toxicity Identification Evaluation (TIE) Requirements: 1.3.1. The Provider shall provide a cost for performing toxicity testing and analyses on the physical and chemical characteristics of a toxic effluent to identify the constituents causing effluenttoxicity. 1.3.2. The Provider shall base the analyses cost on the coneurrent toxicify testing and chemical analysis required to determine if Diazinon isthe suspected pollutantthat caused effluent toxicity. 1.3.3. The Provider shall perform multiple characterizations and follow the procedures specified in "Methods for Aquatic Toxicity Identification Evaluations: 1.3.3.1. Phase I Toxicity Characterization Procedures", EPA/600/6-94/003; for multiple identifications and confirmations the methods specified in "Methods for Aquatic Toxicity Identification Evaluations. 1.3.3.2. Phase II Toxicity Identification Procedures for Samples Exhibiting Acute and Chronic Toxicity", EPA/600/R-92/080; and "Methods for Aquatic Toxicity Identification Evaluations. 1.3.3.3. Phase III Toxicity Confirmation Procedures for Samples Exhibiting Acute and Chronic Toxicity", EPA/600/R-92/08, as appropriate. 1.4. Proficiency Testing (Performance Evaluation) Requirements: 1.4.1. The Provider shall provide results from the US Environmental Protection Agency (USEPA) National Pollutant Discharge Elimination System (NPDES) Discharge Monitoring Report - Quality Assurance (DMR-QA) studies for whole-effluent toxicity self-monitoring analyses for the past five (5) years (DMR-QA Study 31 through DMR-QA Study 35). 1.4.2. The Provider shall demonstrate successful performance on periodic perFormance evaluation (PE) studies. Results for these PE programs shall be forwarded to the City of Fort Worth no less than annually along with an explanation and corrective action response for all outlying results. 1.5. Report Format and Requirements: 1.5.1. The Provider shall provide a copy of the full report format used for reporting test results. ' 1.5.2. The Provider shall prepare a full report of the results of all tests conducted in accordance with the report preparation section of EPA/.600/4- 91/002; or the most current publication, for every valid or invalid toxicity initiated whether carried to completion or not. 1.6. Provider References: The Provider shall provide three (3) references showing how the Provider routinely performs whole-effluent toxicity test and/or Toxicity Identification Evaluation services. 1.7.Additional Information and Audits: The City may also require submission of additional documentation and/or perform on-site audits during the bid process and Agreementterm. 1.8. Sample Containers: The Provider shall provide all sampling containers for sample collection and transportation to the Provider's facility.