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Home My WebLink AboutContract 44067 r ciTy sEcRETARY� �� -1 CONMACT MOO rL`l.._....1........ Between CITY OF FORT WORTH � and USA ENVIRONMENT, L.P. by USA ENVIRONMENT GP Inc. For � IMPACTED SOIL REMOVAL, TRANSPORTATION, AND DISPOSAL 3101 HARDY STREET � M. Roddy Survey A-1370 Shoe & Leather Company's Addition Block 6: Lots 9 TAD # : 02751089 FORT WORTH, TEXAS { Project No. ENV- 12-14: TPW-SOIL Transportation & Public Works Department Environmental Management Division NOVEMBER 2012 gECEIV OFFICIAL RECORD DEC 12 2012 CITY SECRETARy 01,14-13 PO4:48 I N F"r� WORTH,TX use STATE OF TEXAS § - § KNOWN ALL BY THESE PRESENTS COUNTY OF TARRANT § CONTRACT FOR IMPACTED SOIL REMOVAL, TRANSPORTATION, AND DISPOSAL 3101 HARDY STREET M M. Roddy Survey A-1 370 Shoe & Leather Company's Addition Ift Block 6: Lots 9 TAD # : 02751089 FORT WORTH, TEXAS qft Project No. ENV- 12-14: TPW-SOIL 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 Fernando Costa, its duly authorized Assistant City Manager, and USA Environment, L.P.("Contractor"), by USA Environment, GP, Inc., its General Partner acting through Russell Herrscher, duly authorized (lice-President of USA Environment, GP, Inc. WITNESSETH: NOW, THEREFORE, in consideration of the mutual promises and benefits of this Contract, the City and the Contractor agree as follows: 1. DEFINITIONS In this contract, the following words and phrases shall be defined as follows: City's Representative means the Assistant Director of Transportation and Public Works, Environmental Management Division, or his designee. Contract Documents shall consist of the written, printed, typed and drawn instruments which comprise and govern the performance of the work. Said Contract Documents include, but are not limited to this contract all bid documents, the Request for Proposals, Invitation to Bid, instructions to bidders, special instructions to bidders, addenda to the notice to bidders, proposal, plans, specifications, maps, blueprints, notice of award, general conditions, special conditions, supplementary conditions, general provisions, special provisions, work orders), change orders, any contract amendments and the payment, performance and maintenance bonds, or other such similar documents. The CONTRACT FOR IMPACTED SOIL REMOVAL, TRANSPORTATION,AND DISPOSAL Page 9 of 23 USA ENVIRONMENT,L.P. .�„ 3101 HARDY STREET,M.RODDY SURVEY,A-1370,SHOE&LEATHER COMPANY'S ADDITION BLOCK 8:LOTS 9,TAD#:02751089 ■..• low Contract Documents shall also include any and all supplemental agreements approved by the Owner which may be necessary to complete the work in accordance with the aw intent of the plans and specifications in an acceptable manner, and shall also include the additional instruments bound herewith. 1W Notice to Proceed means the letter issued by the City that authorizes Contractor to begin work. It also authorizes future invoices to be paid. 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. 2. SCOPE OF CONTRACTOR'S SERVICES sow A. The scope of work shall include the furnishing of all labor, materials and equipment necessary to complete the work specified in Attachment A. B. Contractor shall perform, in a good and professional manner, the services contained in this Contract and in accordance with all applicable federal, state, and local laws, directives, and guidelines. 3 SCOPE OF CITY SERVICES The City agrees to perform the following services: A. City shall coordinate with facilities, City departments, and any tenants for access to the site. B. City shall give timely direction to the Contractor. C. City shall render decisions regarding modifications to the Contract and any other issue. CONTRACT FOR IMPACTED SOIL REMOVAL, TRANSPORTATION,AND DISPOSAL Page 2 of 23 USA ENVIRONMENT, L.P. 3101 HARDY STREET,M. RODDY SURVEY,A-1370,SHOE&LEATHER COMPANY'S ADDITION BLOCK 6:LOTS 9,TAD#:02751089 4. TIME TO COMPLETE THE PROJECT Contractor will be responsible for coordinating with the Department of Transportation and Public works - Environmental Management Division, immediately after receipt of notice to proceed, the start date of soil remediation activities. Contractor shall begin substantial soil remediation activities on a specific date as specified in the notice to proceed. Contractor shall complete work specified under this contract within ten (10) working days from the beginning of substantial soil remediation activities or the beginning date as shall be otherwise specified in the Notice to Proceed unless an extension of time is granted (in writing) due to inclement weather, any such determination being made in the sole judgment and discretion of the City of Fort Worth. A working day shall be defined as each and every day beginning on the start date for drainage installation activities ` until the work is completed and accepted by the City. If a stop work order is issued by the City, the number of working days shall be tolled until the day a new Notice to Proceed is issued. Should the Contractor fail to begin the work herein provided for within the time herein fixed or to carry on and complete the same according to the true meaning of the intent ' and terms of the plans, specifications and other Contract Documents, then the Owner shall have the right to either (1) demand that the Contractor's surety take over the work and complete same in accordance with the plans, specifications and other Contract Documents or (2) to take charge of and complete the work in such a manner as it may deem proper, and if in the completion thereof, the cost to Owner shall exceed the contract price or prices set forth in -the Contract Documents, the Contractor and/or its surety shall pay Owner upon its demand in a writing, setting forth and specifying an itemized statement of the total cost thereof, said excess cost. 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 ail 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. wow CONTRACT FOR IMPACTED SOIL REMOVAL, TRANSPORTATION,AND DISPOSAL Page 3 of 23 USA ENVIRONMENT, L.P. .� 310' HARDY STREET,M. RODDY SURVEY,A-1374,SHOE&LEATHER COMPANY'S ADDITION BLOCK 6:LOTS 9,TAD#:02751 089 ..R 6. COMPENSATION Section 1. Fee Schedule. City agrees to pay Contractor for its services according to the schedule in Attachment B. NOW The City will not be liable for any Contractor costs in excess of the not-to-exceed amount unless City has signed and issued a written, duly authorized amendment or modification to the Agreement. o'- City shall not pay for any work performed by Contractor or its subcontractors, and/or suppliers that has not been specifically ordered by the City in writing by Task Order or a. Work Assignment pursuant to the terms of this contract or duly authorized modification. Contractor shall not be compensated for any work that is verbally ordered by any person and shall rely only upon written authorization to conduct work. Section 2. Release Upon Payment Acceptance by Contractor 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. Section 3. Invoice and,Payment. 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 Now resolved. City will exercise reasonableness in contesting any billing or portion thereof. �a The remainder of this page is left blank intentionally. �, CONTRACT FOR IMPACTED SOIL REMOVAL, TRANSPORTATION,AND DISPOSAL Page 4 of 23 USA ENVIRONMENT,L.P. 3101 HARDY STREET,M.RODDY SLIRVEY,A-1370,SHOE&LEATHER COMPANY'S ADDITION am BLOCK 6: LOTS 9,TAD#:02751089 oft 7. LIQUIDATED DAMAGES If Contractor fails to commence and complete work under this Contract within the stipulated time, there shall be deducted from any moneys due or owing Contractor, or which may become due, the sum of $1,000.00 (one thousand dollars) per day for each day after the date the project was to be completed, until the project is completed. Such sum shall be treated as liquidated damages and not as a penalty, and City may withhold from Contractor's compensation such sums as liquidated damages. The amount of damage to City for delay in completion of the work is difficult to ascertain and the amount of the liquidated damages per day as stated above is reasonably anticipated pecuniary damages for such delay, and is not a penalty. �. g INDEMNIFICATION low A. Definitions. In this paragraph, the following words and phrases shall be defined as follows: Im 1. Environmental Damages shall mean all claims, judgments, damages, losses, penalties, fines, liabilities (including strict liability), encumbrances, liens costs, and expenses of investigation and defense of any claim, whether or not such claim is ultimately defeated, and of any good faith settlement of judgment, of whatever kind or nature, contingent or otherwise, matured or unmatured, foreseeable or unforeseeable, including without limitation reasonable attorney's fees and disbursements and consultant's fees, any of which are incurred as a result of the existence of a violation of environmental requirements pertaining to the work, or due to negligence or an intentional tort by the Contractor, a Subcontractor, or a vendor and including without limitation: ' a. Damages for personal injury and death, or injury to property or natural resources; b. Fees incurred for the services of attorneys, consultants, contractors, experts, laboratories and investigation or remediation of the monitoring wells or any violation of environmental requirements including, but not limited to, the preparation of any feasibility studies or reports of the performance of any cleanup, remediation, removal, response, abatement, containment, closure, restoration or monitoring work required by any federal, state or local governmental agency or political subdivision, or otherwise expended in connection with the existence of such monitoring wells or violations or environmental requirements, and including without limitation any attorney's fees, costs and CONTRACT FOR IMPACTED SOIL REMOVAL, TRANSPORTATION,AND DISPOSAL Page 5 of 23 USA ENVIRONMENT,L.P. ,.. 3101 HARDY STREET,M.RODDY SURVEY,A-1370,SHOE&LEATHER COMPANY'S ADDITION BLOCK 6:LOTS 9,TAD#:02751089 r expenses incurred in enforcing this contract or collecting any sums due hereunder; and aw c. Liability to any third person or governmental agency to indemnify such person or agency for costs expended in connection with the .w items referenced in subparagraph (b) herein. 2. Environmental requirements shall mean all applicable present and future dow statutes, regulations, rules, plans, authorizations, concessions, franchises, and similar items, of all governmental agencies, departments, commissions, boards, bureaus, or instrumentalities of the United States, am 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 aw 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, surfacewater, groundwater, stormwater, or land, or relating to the �s 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 health and dim safety of employees or the public. B. General Indemnification. CONTRACTOR DOES HEREBY RELEASE, aw INDEMNIFY, REIMBURSE, DEFEND, AND HOLD HARMLESS THE CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES, FROM AND AGAINST ANY AND ALL LIABILITY, CLAIMS, SUITS, DEMANDS, OR CAUSES OF ACTIONS aw WHICH MAY ARISE DUE TO ANY LOSS OR DAMAGE TO PERSONAL PROPERTY, OR PERSONAL INJURY, AND/OR DEATH, OCCURRING AS A CONSEQUENCE OF THE CONTRACTOR'S OPERATIONS UNDER THIS aw AGREEMENT, WHETHER SUCH INJURIES, DEATH, OR DAMAGES ARE CAUSED BY THE INTENTIONAL TORT OR THE SOLE NEGLIGENCE OF THE CONTRACTOR, ITS OFFICERS, AGENTS, EMPLOYEES, OR mow CONTRACTORS, OR THE JOINT NEGLIGENCE OF CONTRACTOR, ITS OFFICERS, AGENTS, EMPLOYEES, OR CONTRACTORS AND ANY OTHER PERSON OR ENTITY. am C. Environmental Indemnification. CONTRACTOR DOES HEREBY RELEASE, INDEMNIFY, DEFEND, REIMBURSE, AND HOLD HARMLESS THE CITY, ITS CONTRACT FOR IMPACTED SOIL REMOVAL, TRANSPORTATION,AND DISPOSAL Page 6 of 23 USA ENVIRONMENT,L.P. 3101 HARDY STREETA.RODDY SURVEY,A-1370,SHOE&LEATHER COMPANY'S ADDITION BLOCK 6:LOTS 9,TAD#:02751089 yew 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. D. The obligations of the Contractor under this paragraph 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. E. 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. F. 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. G. The obligations of the Contractor under this paragraph shall survive the expiration or termination of this Agreement and the discharge of all other obligations owed by the parties to each other hereunder. The remainder of this page is left blank intentionally. CONTRACT FOR IMPACTED SOIL REMOVAL, TRANSPORTATION,AND DISPOSAL Page 7 of 23 USA ENVIRONMENT,L.P. 3101 HARDY STREET,M. RODDY SURVEY,A-1370,SHOE&LEATHER COMPANY'S ADDiTiON BLOCK 6: LOTS 9,TAD#:02751089 9. 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. 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. amp, 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. Workers Compensation Coverage A: statutory limits Coverage B: $100,000 each accident $500,000 disease policy limit $1 00,000 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 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. .w CONTRACT FOR IMPACTED SOIL REMOVAL, TRANSPORTATION,AND DISPOSAL Page 8 of 23 USA ENVIRONMENT,L.P. 3101 HARDY STREET,M.RODDY SURVEY,A-1370,SHOE&LEATHER COMPANY'S ADDITION BLOCK 6:LOTS 9,TAD#:02751089 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 Financial Management Services - Risk Management Division, City of Fort Worth, 1000 Throckmorton Street, Fort Worth, Texas 76102. 5. 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. 6. 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. 7. Applicable policies shall each be endorsed with a waiver of subrogation in favor of the City as respects the Contract. 8. 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 AM premium payments. 9. The Commercial General Liability insurance policy shall have no exclusions by endorsements unless the City approves such exclusions. 10. 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. 11. All insurance required above shall be written on an occurrence basis in order to , be approved by the City. 12. Subcontractors to the Contractor shall be required by the Contractor to maintain ., the same or reasonably equivalent insurance coverage as required for the CONTRACT FOR IMPACTED SOIL REMOVAL, TRANSPORTATION,AND DISPOSAL Page 9 of 23 USA ENVIRONMENT,L.P. , 3101 HARDY STREET,M.RODDY SURVEY,A-1370,SHOE&LEATHER COMPANY'S ADDITION BLOCK 6: LOTS 9,TAD#:02751089 d Contractor. When subcontractors maintain insurance coverage, Contractor shall provide City with documentation thereof on a certificate of insurance. aw 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. ow 10. BONDING 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 aw contract is in excess of $25,000 and a performance bond if the contract is in excess of $1 00,000. The payment bond is solely for the protection and use of payment bond beneficiaries who have a direct contractual relationship with the ANOW 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 Now 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 Untied States Secretary of the Treasury to qualify as a surety on obligations permitted or required under federal law. Satisfactory proof of any such 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. CONTRACT FOR IMPACTED SOIL REMOVAL, TRANSPORTATION,AND DISPOSAL Page 10 of 23 USA ENVIRONMENT, L.P. 3101 HARDY STREET,M.RODDY SURVEY,A-1370,SHOE&LEATHER COMPANY'S ADDITION BLOCK 6:LOTS 9,TAD#:02751089 11. WARRANTY Contractor warrants that it understands the currently known hazards and the suspected hazards which are presented to persons, property and the environment by the work specified in 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. 12. DEFAULT AND TERMINATION A. Contractor shall not be deemed to be in default because of any failure to perform under this contract if the failure arises solely from: acts of God, acts of the public enemy, fires, flood, epidemics, quarantine restrictions, strikes, freight embargoes, and extreme meteorological events. Contractor affirms a duty to mitigate any delays or damages arising from such causes. B. If Contractor fails to begin work herein provided for within the time specified herein, or to complete such work within -the time specified herein, City shall have the right to take charge of and complete -the work in such a manner as it may deem appropriate. If City's total costs exceeds the costs as agreed in the contract documents, the 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. C. 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 at the discretion of the City. All costs and attorneys fees incurred by City in the enforcement of any provision of this contract shall be paid by Contractor. AM D. City may terminate this Contract at its sole discretion and without cause upon thirty (30) days prior written notice to Contractor, and 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 that is completed by Contractor and accepted by the City. E. The remedies provided for herein are in addition to any other remedies available to City elsewhere in this contract. CONTRACT FOR IMPACTED SOIL REMOVAL., TRANSPORTATION,AND DISPOSAL Page 11 of 23 USA ENVIRONMENT,L.P. 3101 HARDY STREET,M.RODDY SURVEY,A-1370,SHOE&LEATHER COMPANY'S ADDITION BLOCK 6:LOTS 9,TAD#:02751089 13. .w 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 owl 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 am 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. fow 14. MODIFICATION No modification of this Contract sham be binding on the Contractor or the City unless set out in writing and signed by both parties. No 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. 15. RIGHT TO AUDIT City and Contractor agree that, until the expiration of three (3) years after the final saw 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. ow CONTRACT FOR IMPACTED SOIL REMOVAL, TRANSPORTATION,AND DISPOSAL Page 12 of 23 USA ENVIRONMENT,L.P. 3101 HARDY STREET,M.RODDY SURVEY,A-1370,SHOE&LEATHER COMPANY'S ADDITION Mae BLOCK 6:LOTS 9,TAD#:02751089 Am 16. Im MINORITY AND WOMAN BUSINESS ENTERPRISE (M/WBE) PARTICIPATION In accordance with the City's Business Diversity Enterprise (BDE) Ordinance No. 20020-12-2011, the City has established goals for -the participation of BDEs in Cit contracts. Unless a waiver of DBE goals has been authorized by the City, Contracto hereby acknowledges the BDE goals established in the Contract Documents for this project and affirms its contractually enforceable agreement to achieve those goals. Any misrepresentation of facts (other than a negligent misrepresentation) and/or the commission of fraud by the Consultant may result in the termination of this Agreement and debarment from participating in City contracts for a period of time of not less than three (3) years. 17. PREVIALING WAGE RATES Contractor shall comply with TEXAS GOVERNMENT CODE, Chapter 2258, with respect to payment of Prevailing Wage Rates for public works contracts and Contractor shall comply with -the Davis -- Bacon Act for building and construction trades, and shall comply with the prevailing wage requirements as specified in the ITB for the project. A worker employed on a public work by or on behalf of the City of Fort Worth shall be paid not less than the general prevailing rate of per diem wages for work of a similar character in -the locality in which the work is performed; and not less than the general prevailing rate of per diem wages for legal holiday and overtime work. A worker is employed on a public work if the worker is employed by a contractor or subcontractor in the execution of a contract for the public work with the City of Fort Worth. The contractor who is awarded a public work contract, or a subcontractor of the contractor, shall pay not less than the prevailing wage rates to a worker employed by it AM in the execution of the contract. A contractor or subcontractor who violates this requirement shall pay to the City of Fort Worth, $60 for each worker employed for each calendar day or part of the day that the worker is paid less than the wage rates stipulated in the contract. This requirement does not prohibit the contractor or subcontractor from paying an employee an amount greater than the prevailing wage rate. 18. NON-DISCRIMINATION 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. CONTRACT FOR IMPACTED SOIL REMOVAL, TRANSPORTATION,AND DISPOSAL Page 13 of 23 USA ENVIRONMENT,L.P. 3101 HARDY STREET,M.RODDY SURVEY,A-1370,SHOE&LEATHER COMPANY'S ADDITION BLOCK 6:LOTS 9,TAD#:02751089 Im Contractor agrees not to discriminate against any employee or applicant for aw 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, ow 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. MW 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. wow 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. 19. 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. 20. 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. 21. 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 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. . CONTRACT FOR IMPACTED SOIL REMOVAL, TRANSPORTATION,AND DISPOSAL Page 14 of 23 USA ENVIRONMENT, L.P. 3101 HARDY STREET,M.RODDY SURVEY,A-1370,SHOE&LEATHER COMPANY'S ADDITION BLOCK 6:LOTS 9,TAD#:02751089 -mom " 22. JURISDICTION AND VENUE Jurisdiction and venue of any suit or cause of action under this Contract shall lie in Tarrant County, Texas or the federal courts therein. The remainder of this page is left blank intentionally. low CONTRACT FOR IMPACTED SOIL REMOVAL, TRANSPORTATION,AND DISPOSAL Page 15 of 23 USA ENVIRONMENT,L.P. , 3101 HARDY STREET,M.RODDY SURVEY,A-1370,SHOE&LEATHER COMPANY'S ADDITION BLOCK 6:LOTS 9,TAD#:02751089 PWR .� 23. NOTICES ow 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: Michael Gange, Assistant Director Department of Transportation and Public works O 1000 Throckmorton St. Fort Worth, TX 76102 MW If to the Contractor: Russell Herrscher, Vice-President USA Environment, L.P. ow 18745 Goll Street, Suite 103 San Antonio, TX 78266 ow 24. 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. 25. 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 low own contracts or commitments. 26. ow 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. own 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. ow CONTRACT FOR IMPACTED SOIL REMOVAL, TRANSPORTATION,AND DISPOSAL Page 16 of 23 USA ENVIRONMENT,L.P. 3101 HARDY STREET,M.RODDY SURVEY,A-1370,SHOE&LEATHER COMPANY'S ADDITION now BLOCK 6:LOTS 9,TAD#:02751989 27. 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 the specific terms of this contract and any other contract documents, then the terms of this contract shall govern. 28. 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 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 low Bid or the Contractor's proposal. The signatory to this contract represents that he or she is legally authorized by the IMF Contractor to enter into a binding agreement on behalf of the Contractor. 4M The remainder of this page is left blank intentionally. CONTRACT FOR IMPACTED SOIL REMOVAL, TRANSPORTATION,AND DISPOSAL Page 17 of 23 USA ENVIRONMENT,L.P. 3101 HARDY STREET,M.RODDY SURVEY,A-1370,SHOE&LEATHER COMPANY'S ADDITION BLOCK S:LOTS 9,TAD#:02751089 rr ATTACHMENT A SCOPE OF WORK low Contractor will furnish all labor, materials and equipment necessary to perform the removal, transportation, disposal, and backfilling of approximately 183 cubic yards of soil (volume as measured ex-situ), located on the parcels located at the following 4W address in or near Fort Worth, Texas: 3101 HARDY STREET aw M. RODDY SURVEY A-1370 Shoe & Leather Company's Addition AW Block 6: Lots 9 TAD # : 02751089 FORT WORTH, TEXAS owl PROJECT SPECIFICATIONS aw Contractor will be responsible for contacting applicable utility services in order to decide whether or not main lines or routes effectively traverse the project site. It will be determined with the consultation of City staff the best method to address any utility concerns involving the aforementioned utility service issues. .w. Contractor agrees to excavate, load, transport, and dispose of approximately 183 cubic yards (ex-situ) of impacted soil as Class 11 Non-Hazardous waste solids. The area to be NNW excavated will be demarcated with surveying markers, stakes, locating marker paint, survey ribbons, and/or Global Positioning System (GPS) coordinates will be utilized to establish the area of excavation which is approximately sixty (60) feet wide by twelve MNW (12) feet long by five (5) feet deep. See ATTACHMENT C; Figure: Former Trailer Doctor, LeBow Channel Improvement Project, 3101 Hardy Street M Contractor agrees to import approximately 183 cubic yards of verifiable, clean fill material, place, and compact material within the area of excavation. Contractor agrees to provide waste profiling and manifests naming the City of Fort Worth as the Generator of the Class 11 Non-Hazardous waste solids. Contractor agrees to provide the City with copies of the weight tickets and transportation logs for both the waste disposal and the clean fill materials. Contractor agrees to provide analytical results to the City, indicating the material utilized for the backfilling of the excavated area is acceptable in regards to TRRP Residential standards. CONTRACT FOR IMPACTED SOIL REMOVAL, TRANSPORTATION,AND DISPOSAL Page 18 of 23 USA ENVIRONMENT,L.P. 3101 HARDY STREET,1M. RODDY SURVEY,A-1370,SHOE&LEATHER COMPANY'S ADDITION BLOCK 6:LOTS 9,TAD#:02751089 �r Project Coordination Contractor will be responsible for coordinating with the Department of Transportation and Public Works - Environmental Management Division, immediately after receipt of notice to proceed, the start date of soil removal activities. low The remainder of this page is left blank intentionally. low low -�. CONTRACT FOR IMPACTED SOIL REMOVAL, TRANSPORTATION,AND DISPOSAL Page 19 of 23 USA ENVIRONMENT,L.P. 3101 HARDY STREET,M.RODDY SURVEY,A-1370,SHOE&LEATHER COMPANY'S ADDITION BLOCK 6:LOTS 9,TAD#:02751089 or aw ATTACHMENT B o COMPENSATION SCHEDULE ow THIS IS A FIXED-PRICE CONTRACT. MW QUANTITIES IDENTIFIED IN CONTRACT ARE ESTIMATED BY THE CITY AND/OR THE CITY'S CONSULTANT, AGENT, OR DESIGNEE. THE CONTRACTOR IS RESPONSIBLE FOR VERIFYING ALL QUANTITIES. CLAIMS FOR ADDITIONAL COMPENSATION DUE TO VARIATIONS BETWEEN CONDITIONS ACTUALLY ENCOUNTERED IN THE PROJECT AND ww AS INDICATED IN THE CONTRACT DOCUMENTS WILL NOT BE ALLOWED. owl A. In consideration for the work performed by Contractor under this Contract, City shall pay Contractor a total price not to exceed twelve-thousand, six- hundred and eighteen dollars and fifty cents ($12,618.00) for the NAW completion of all work specified in this contract. B. The City shall not compensate Contractor in excess of the Not-to-Exceed 4W Amount unless the City has executed a written, authorized, and formal Modification to the Contract signed by the City Manager or an Assistant City Manager of the City of Fort Worth. It is expressly agreed between the parties MW that there shall be no oral modifications to this contract. C. The parties agree that the soil remediation grand total as specified in the low Contractor's bid (and the Not-to-Exceed amount in this contract) of twelve- thousand, six-hundred and eighteen dollars and fifty cents ($12,618.00) shall be the whole of compensation for all of the services specified in this contract. In the event of a discrepancy between any unit price and the contract grand total or not-to-exceed price, the grand total or not-to-exceed price shall prevail. In no event will compensation be greater than the not-to- .W exceed amount described herein. D. Quantities identified in the Invitation to Bid were estimated quantities only. Prior to submitting a bid, as noted in the Invitation to Bid, the Contractor was responsible for verifying all quantities upon which the Contractor's bid was based. The Contractor was to rely exclusively upon its own estimates, ow investigation, research, tests, and other data necessary to supply the full and complete information upon which the Contractor's bid was based. It is mutually agreed that submission of a bid is prima-facie evidence that the Rpm Contractor has made all of the investigations, examinations, and tests required to make a fully informed offer. E. By executing this contract, the Contractor affirms and agrees that the Contractor has had the opportunity and duty to confirm all quantities prior to CONTRACT FOR IMPACTED SOIL REMOVAL, TRANSPORTATION,AND DISPOSAL Page 20 of 23 USA ENVIRONMENT,L.P. 3101 HARDY STREET,M.RODDY SURVEY,A-1370,SHOE&LEATHER COMPANY'S ADDITION BLOCK 6:LOTS 9,TAD#:02751089 submitting a bid, and Contractor expressly waives any and all right to additional compensation other than the contract grand total as a result of any discrepancy between the quantities encountered and the estimated quantities in the Invitation to Bid and bid documents. F. The parties intend and agree that any change order or modification to this contract will be in the case of only the most extraordinary of circumstances. Any claims for additional compensation based upon variations between conditions actually encountered in this project and conditions as indicated in the Contract Documents will not be allowed. Any claims for additional compensation proposed by Contractor will be examined by the City in consideration of the terms described herein and the Contractors request for additional compensation must clearly show why the variation was not identifiable prior to -the Contractor submitting its bid. As used in this contract, "not identifiable" means that the Contractor a) performed all investigation, research, tests, and other data collection necessary to accurately determine quantities, and b) no reasonably possible investigation, research, tests, or other data collection could have identified the variation. The final determination as to additional compensation will be made at the sole m judgment and discretion of the City. The remainder of this page is left blank intentionally. lo. 1W CONTRACT FOR IMPACTED SOIL REMOVAL, TRANSPORTATION,AND DISPOSAL Page 21 of 23 USA ENVIRONMENT,L.P. 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Shoe&Leather C .A. dtn Block 6 Lot 9 WxlTxT-125 cubic yards Excava� Boundary Par��€t ,. : li -slit EXCAVATION BOUNDARY Area of Excavabon :. LATIT OE LONGITUDE Lot L•)N.; •:fti:{i:{Y;v,:$!•`: .•}:/';.:}$ 1 32 47 9.8841514 097 20 13.9T704W Q Z5 50 ;_ 2 2 47 59-77. 097 70 13.97829W 32 47 59�8753414 097 20 13.2705Z%N ` Feet 4 32 47 59-77231 N 097 20 13-2692TV rh 'i'v`7i. :::(:r'•',:}h( �''4:i i ::`tii:':;:i'fE �tt::.'. ry}: '' •'+1:...r::,v�'c.?:W>rT'•}'ii�f.:R.++:'k:........•r>:�:......:t:.{::an_.. ,:.......:..............]Yr":rs}:L:<:>:>^r;x:'ts� �►Y CONTRACT FOR IMPACTED SOIL REMOVAL, TRANSPORTATION,AND DISPOSAL Page 22 of 23 USA ENVIRONMENT, L.P. 3101 HARDY STREET,M.RODDY SURVEY,A-1370,SHOE&LEATHER COMPANY'S ADDITION 4W� BLOCK 6:LOTS 9,TAD#:02751089 CONTRACT FOR IMPACTED SOIL REMOVAL, TRANSPORTATION, AND Aw DISPOSAL 3101 HARDY STREET, FORT WORTH, TEXAS (M. RODDY SURVEY; A-1370; Shoe & Leather Company's Addition; Block 6: Lots 9) TAD # : 02751089 Project No. ENV- 12-14: TPW-Sol L IN WITNESS THEREOF, the parties have executed this contract in triplicate in Fort Worth, Texas, on the dates written below. CITY OF FORT (NORTH CONTRACTOR USA Environment, L.P. by its General Partner, USA Environment GP, Inc. BY: Fernando Costa Russell Herr er Assistant City Man Vice-President Date Signed: /7er ,3 USA Environment, GP Inc. RECO . l WITN SS: {s. Michael GaragL Assistant Direc oQ Trans ortation ublic Works -' 0 X � mo APPROVED AS TO FORM CORPORATE SEAL: AND LEGALITY: J Arthur N. Bashor Assistant City Attorney f0rilo � 000 0000 ATTES . 0 Q r° , 1 ! r, V M D o OFFICIAL.RECORD Mary J. Kays r a j �ao �o�-�c��, ! � 00 �0 .rte CITY SECRETARY' City Secreta 0000 row' WORTH9 TX i�C�►. 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