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HomeMy WebLinkAboutContract 58830CSC No. 58830 CITY OF FORT WORTH, TEXAS STANDARD AGREEMENT FOR GENERAL PROFESSIONAL SERVICES This agreement ("Agreement") is between the City of Fort Worth, a Texas home -rule municipality ("City"), and Floodbreak, LLC, authorized to do business in Texas ("Consultant"), for a project generally described as: Fort Worth Zoo Drainage Improvements — Project No. CO2447. Article I Scope of Services (1) Consultant hereby agrees to perform professional services as set forth in this Agreement and the Scope of Services, attached hereto as Attachment "A" ("Services"). These Services shall be performed in connection with the Project. (2) Additional services, if any, will be memorialized by an amendment to this Agreement. (3) All reports, whether partial or complete, prepared under this Agreement, including any original drawings or documents, whether furnished by City, its officers, agents, employees, consultants, or contractors, or prepared by Consultant, shall be or become the property of City, and shall be furnished to the City, prior to or at the time such services are completed, or upon termination or expiration of Agreement. Article II Compensation Consultant shall be compensated an amount up to $10,620.00 in accordance with the Fee Schedule shown in Attachment "B". Payment shall be considered full compensation for all labor (including all benefits, overhead and markups), materials, supplies, and equipment necessary to complete the Services. Consultant shall provide monthly invoices to City. Payments for services rendered shall be made in accordance with the Texas Prompt Payment Act (Texas Government Code Ch. 2251). Acceptance by Consultant of said payment shall release City from all claims or liabilities under this Agreement for anything related to, performed, or furnished in connection with the Services for which payment is made, including any act or omission of City in connection with such Services. OFFICIAL RECORD Article III CITY SECRETARY Term FT. WORTH, TX Time is of the essence. The term of this Agreement shall commence on the Effective Date and shall continue until the expiration of the funds or completion of the subject matter pursuant to City of Fort Worth, Texas Fort Worth Zoo Drainage Improvements Standard Agreement for Professional Services CPN: CO2447 Revision Date: November 23, 2021 Page 1 of 9 the schedule, whichever occurs first, unless terminated in accordance with the terms of this Agreement. Unless specifically otherwise amended, the original term shall not exceed five years from the original effective date. Article IV Independent Contractor Consultant shall operate hereunder as an independent contractor and not as an officer, agent, servant, or employee of City. Consultant shall have exclusive control of and the exclusive right to control the details of the work to be performed hereunder and of 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 City and Consultant, its officers, agents, employees, contractors, and subcontractors, and nothing herein shall be construed as creating a partnership or joint venture between City and Consultant. Article V Professional Competence Work performed by Consultant shall comply in all aspects with all applicable local, state and federal laws and with all applicable, standards, codes, rules and/or regulations promulgated by local, state and national boards, bureaus and agencies. Approval to proceed by City of Consultant's work or work product 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 performance of the Services. Article VI Indemnification CONSULTANT, AT NO COST TO THE CITY, AGREES TO INDEMNIFYAND HOLD CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, HARMLESS AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO CONSULTANT'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCLUDING DEATH, THAT MAY RELATE TO, ARISE OUT OF OR BE OCCASIONED BY CONSULTANT'S BREACH OF (i) ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (ii) ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL MISCONDUCT OF CONSULTANT, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY) OR SUBCONTRACTORS RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT. THIS SECTION SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT. City of Fort Worth, Texas Fort Worth Zoo Drainage Improvements Standard Agreement for Professional Services CPN: CO2447 Revision Date: November 23, 2021 Page 2 of 9 Article VII Insurance Consultant shall not commence work under this Agreement until it has obtained all insurance required under Attachment F and City has approved such insurance. Article VIII Force Majeure City and Consultant 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, including, but not limited to: acts of the public enemy, fires, strikes, lockouts, natural disasters, epidemics/pandemics, wars, riots, material or labor restrictions by any governmental authority and/or any other similar causes. Article IX Transfer or Assignment Consultant, its lawful successors and assigns, shall not assign, sublet or transfer any interest in this Agreement without prior written consent of City. Article X Termination of Contract (1) City may terminate this Agreement for convenience by providing written notice to Consultant at least 30-days prior to the date of termination, unless Consultant agrees in writing to an earlier termination date. (2) Either City or Consultant may terminate this Agreement for cause if either party fails to substantially perform, through no fault of the other and the nonperforming party does not commence correction of such nonperformance within 5 days after receipt of written notice or thereafter fails to diligently pursue the correction to completion. (3) If City chooses to terminate this Agreement, upon receipt of notice of termination by Consultant, Consultant shall discontinue Services on the date such termination is effective. City shall compensate Consultant for such services rendered based upon Article 11 of this Agreement and in accordance with Exhibit "B". Article XI Right to Audit (1) Consultant agrees that City shall, until the expiration of three (3) years after final payment under Agreement, have access to and the right to examine any directly pertinent books, documents, papers and records of Consultant involving transactions relating to Agreement. Consultant agrees that City shall have access during normal City of Fort Worth, Texas Fort Worth Zoo Drainage Improvements Standard Agreement for Professional Services CPN: CO2447 Revision Date: November 23, 2021 Page 3 of 9 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. (2) Consultant further agrees to include in all its subcontracts hereunder, a provision to the effect that the subcontractor agrees that 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 subcontractor(s), involving transactions 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 article. City shall give Consultant and any subcontractor reasonable advance notice of intended audit. (3) Consultant and subcontractor(s) agree to photocopy such documents as may be requested by City. 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 XII Business Equity Participation City has goals for the full and equitable participation of minority business and/or women business enterprises in City contracts greater than $100,000. In accordance with City's Business Equity Ordinance No. 25165-10-2021 (replacing Ordinance No. 24534-11-2020, as codified in Chapter 20, Article X of the City's Code of Ordinances, as amended, and any relevant policy or guidance documents), Consultant acknowledges the MBE and WBE goals established for Agreement and its execution of this Agreement is Consultant's written commitment to meet the prescribed MBE and WBE participation goals. Any misrepresentation of facts (other than a negligent misrepresentation) and/or the commission of fraud by Consultant may result in the termination of Agreement and debarment from participating in City contracts for a period of time of not less than three (3) years. Article XIII 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 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 or its subcontractor(s). City of Fort Worth, Texas Fort Worth Zoo Drainage Improvements Standard Agreement for Professional Services CPN: CO2447 Revision Date: November 23, 2021 Page 4 of 9 Article XIV Immigration Nationality Act Consultant shall verify the identity and employment eligibility of its employees and employees of all subcontractor(s) who perform work under Agreement, including completing the Employment Eligibility Verification Form (1-9). Upon request by City, Consultant shall provide City with copies of all 1-9 forms and supporting eligibility documentation for each employee who performs work under Agreement. Consultant shall adhere to all Federal and State laws as well as establish appropriate procedures and controls so that no services will be performed by any Consultant employee who is not legally eligible to perform such services. CONSULTANT SHALL INDEMNIFY CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY CONSULTANT, CONSULTANT'S EMPLOYEES, SUBCONTRACTORS, AGENTS, OR LICENSEES. City, upon written notice to Consultant, shall have the right to immediately terminate Agreement for violations of this provision by Consultant. Article XV Venue and Jurisdiction If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of 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. Agreement shall be construed in accordance with the laws of the State of Texas. Article XVI Contract Construction/No Waiver The parties acknowledge that each Party and, if it so chooses, its counsel, have reviewed and revised Agreement and that the normal rule of contract construction, to the effect that any ambiguities are to be resolved against the drafting party, must not be employed in the interpretation of Agreement or any amendments or exhibits hereto. The failure of City or Consultant to insist upon the performance of any term or provision of this Agreement or to exercise any right granted herein shall not constitute a waiver of City's or Consultant's respective right to insist upon appropriate performance or to assert any such right on any future occasion. Article XVII Severability The provisions of Agreement are severable, and if any word, phrase, clause, sentence, paragraph, section or other part of Agreement or the application thereof to any person or circumstance shall ever be held by any court of competent jurisdiction to be invalid or City of Fort Worth, Texas Fort Worth Zoo Drainage Improvements Standard Agreement for Professional Services CPN: CO2447 Revision Date: November 23, 2021 Page 5 of 9 unconstitutional for any reason, the remainder of Agreement and the application of such word, phrase, clause, sentence, paragraph, section, or other part of Agreement to other persons or circumstances shall not be affected thereby and Agreement shall be construed as if such invalid or unconstitutional portion had never been contained therein. Article XVIII Notices Notices regarding Articles IX or X are to be provided 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: Helen D. Florez Park & Recreation 4200 South Freeway, Suite 2200 Fort Worth, Texas 76115 Consultant: Floodbreak, LLC Attn: Patrick T. Conroy, Controller 5909 West Loop South, Suite 200 Bellair, TX 77401 All other notices may be provided as described above or via electronic means. Article XIX Prohibition On Contracts With Companies Boycotting Israel Consultant, unless a sole proprietor, acknowledges that in accordance with Chapter 2271 of the Texas Government Code, if Consultant has 10 or more full time -employees and the contract value is $100,000 or more, the City is prohibited from entering into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. The terms "boycott Israel" and "company" shall have the meanings ascribed to those terms in Section 808.001 of the Texas Government Code. By signing this contract, Consultant certifies that Consultant's signature provides written verification to the City that if Chapter 2271, Texas Government Code applies, Consultant: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. City of Fort Worth, Texas Fort Worth Zoo Drainage Improvements Standard Agreement for Professional Services CPN: CO2447 Revision Date: November 23, 2021 Page 6 of 9 Article XX Prohibition on Boycotting Energy Companies Consultant acknowledges that in accordance with Chapter 2274 of the Texas Government Code -(as added by Acts 2021, 87th Leg., R.S., S.B. 13, § 2), the City is prohibited from entering into a contract for goods or services that has a value of $100,000 or more, which will be paid wholly or partly from public funds of the City, with a company (with 10 or more full-time employees) unless the contract contains a written verification from the company that it: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of the contract. The terms "boycott energy company" and "company" have the meaning ascribed to those terms by Chapter 2274 of the Texas Government Code (as added by Acts 2021, 87th Leg., R.S., S.B. 13, § 2). To the extent that Chapter 2274 of the Government Code is applicable to this Agreement, by signing this Agreement, Consultant certifies that Consultant's signature provides written verification to the City that Consultant: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of this Agreement. Article XXI Prohibition on Discrimination Against Firearm and Ammunition Industries Consultant acknowledges that except as otherwise provided by Chapter 2274 of the Texas Government Code (as added by Acts 2021, 87th Leg., R.S., S.B. 19, § 1), the City is prohibited from entering into a contract for goods or services that has a value of $100,000 or more which will be paid wholly or partly from public funds of the City, with a company (with 10 or more full-time employees) unless the contract contains a written verification from the company that it: (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate during the term of the contract against a firearm entity or firearm trade association. The terms "discriminate," "firearm entity" and "firearm trade association" have the meaning ascribed to those terms by Chapter 2274 of the Texas Government Code (as added by Acts 2021, 87th Leg., R.S., S.B. 19, § 1). To the extent that Chapter 2274 of the Government Code is applicable to this Agreement, by signing this Agreement, Consultant certifies that Consultant's signature provides written verification to the City that Consultant: (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate against a firearm entity or firearm trade association during the term of this Agreement. Article XXII 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 Agreement. City of Fort Worth, Texas Fort Worth Zoo Drainage Improvements Standard Agreement for Professional Services CPN: CO2447 Revision Date: November 23, 2021 Page 7 of 9 Article XXIII Attachments, Schedules and 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. The following attachments and schedules are hereby made a part of Agreement: Attachment A - Scope of Services Attachment B — Compensation Attachment C - Changes to Agreement Attachment D - Project Schedule Attachment E - Location Map Attachment F — Insurance Requirements Duly executed by each party's designated representative to be effective on the date subscribed by the City's designated Assistant City Manager. BY: CITY OF FORT WORTH Jesica McEachern Assistant City Manager Date: Jan 25, 2023 ATTEST: BY: CONSULTANT Floodbreak, LLC Patrick T Conroy Patrick T Conroy (Nov 21, 2022 12:39 CST) Patrick T. Conroy Controller g494angn� Date: Nov 21, 2022 a FORT a O��"t 11 �Q Pvo 8=0 °o*° °°� Ik a� nEXA5o4�. Jannette Goodall City Secretary APPROVAL RECOMMENDED: Jy Jy By-J OP? ff'-- AK — Dave Lewis INI Acting Director, Park & Recreation Department City of Fort Worth, Texas Standard Agreement for Professional Services Revision Date: November 23, 2021 Page 8 of 9 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Fort Worth Zoo Drainage Improvements CPN:CO2447 APPROVED AS TO FORM AND LEGALITY Form 1295 No. included By: Jeremy Anato-Mensah Assistant City Attorney Contract Compliance Manager: M&C No.: n/a M&C Date: n/a By signing, I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. Helen D. Florez Park Planner OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX City of Fort Worth, Texas Fort Worth Zoo Drainage Improvements Standard Agreement for Professional Services CPN: CO2447 Revision Date: November 23, 2021 Page 9 of 9 Attachment A Flood wreak REVOLUTIONARY FLOOD CONTROL November 16, 2022 Cannon Henry Stormwater Infrastructure Manager City of Fort Worth 1000 Thrickmorton St Fort Worth TX 76102 Sent via email: Cannon.Henry@fortworthtexas.gov Proposal # S-2219-2, Project: Zoo Creek Float Test Dear Cannon, 5909 West Loop South. Suite 200 Bellaire, TX 77401 (713) 980-6610 Fax (713) 629-9936 info@floodbreak.com Thank you for contacting FloodBreak about performing a float test on your flood gate at Zoo Creek in Fort Worth TX. The following cost will be for FloodBreak and team to travel onsite and construct a containment wall that will hold in water on the wet -side of the flood gate to simulate a flood. The cost will include labor, equipment, and material to construct the wall and perform the test excluding water. Total Cost - $10,620. Please feel free to give me a call should you have any questions. FloodBreak is fast becoming the standard of the industry, and we look forward to protecting your assets and ensuring a long service life for your flood barrier system. Best regards, Gary Stanizeski Field Service Manager FloodBreak Automatic Floodgates 203-856-8783 gstanizeskiC@floodbreak.com Attachment B Compensation The services described in Attachment A Scope of Services shall be provided for a total lump sum fee of $10,620.00. The overall fee total shown shall be exceeded without prior written authorization from the CITY. Payment for services described in Attachment A Scope of Services shall be invoiced to the CITY. Attachment C Amendments to Standard Agreement for Professional Services (No amendments are required.) Attachment D Schedule The project is anticipated to be completed within 2 calendar days. Shown below is the anticipated time duration breakdown by task: Task 1. Preparation and construction of coffer dam Duration 1 day 2. Test of flood gate 1 day Botanic Garden II = Location Map 2850 Park Place Avenue, Fort Worth, TX 76110 Forest Park Park Cabin location of proposed project I% u 1 ` 1 J I � Forest, Park Forest Park r r 15318'•�•• �ItE i Fort Worth Zoo, i Fores G T ��1 Dr. Ui i N i ••♦ W � # n Li s POLICY NUMBER: GLO-087125 COMMERCIAL GENERAL LIABILITY CG 20 10 04 13 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS - SCHEDULED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organization(s) Location(s) Of Covered Operations Any person or organization you have agreed in a written Locations and operations covered under this policy contract to add as an additional insured on your policy when required by written contract signed prior to the provided the written contract is signed prior to the "bodily "bodily injury', "property damage" or "personal and injury", "property damage" or "personal and advertising advertising injury' injury" Information required to complete this Schedule, if not shown above, will be shown in the Declarations. A. Section II - Who Is An Insured is amended to B. With respect to the insurance afforded to these include as an additional insured the person(s) or additional insureds, the following additional organization(s) shown in the Schedule, but only exclusions apply: with respect to liability for "bodily injury', "property This insurance does not apply to "bodily injury' or damage" or "personal and advertising injury "property damage" occurring after: caused, in whole or in part, by: 1. All work, including materials, parts or 1. Your acts or omissions; or equipment furnished in connection with such 2. The acts or omissions of those acting on your work, on the project (other than service, behalf; maintenance or repairs) to be performed by or on behalf of the additional insured(s) at the in the performance of your ongoing operations for location of the covered operations has been the additional insured(s) at the location(s) completed; or designated above. 2. That portion of "your work" out of which the However: injury or damage arises has been put to its 1. The insurance afforded to such additional intended use by any person or organization insured only applies to the extent permitted by other than another contractor or subcontractor law; and engaged in performing operations for a principal as a part of the same project. 2. If coverage provided to the additional insured is required by a contract or agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to provide for such additional insured. CG 20 10 04 13 © Insurance Services Office, Inc., 2012 Page 1 of 2 CERTIFICATE OF INTERESTED PARTIES FORM 1295 1 of 1 Complete Nos. 1- 4 and 6 if there are interested parties. OFFICE USE ONLY Complete Nos.1, 2, 3, 5, and 6 if there are no interested parties. CERTIFICATION OF FILING Certificate Number: 1 Name of business entity filing form, and the city, state and country of the business entity's place of business. 2022-959153 FLOODBREAK LLC Bellaire, TX United States Date Filed: 11/29/2022 2 Name of governmental entity or state agency that Is a party to the contract for which the form Is being filed. City of Fort Worth Date Acknowledged: 3 Provide the identification number used by the governmental entity or state agency to track or identify the contract, and provide a description of the services, goods, or other property to be provided under the contract. CO2447 Float Test at Fort Worth Zoo Creek 4 Name of Interested Parry City, State, Country (place of business) Nature of interest (check applicable) Controlling Intermediary 5 Check only if there is NO Interested Party. X 6 UNSWORN DECLARATION L o r My name is and my date of birth is Z r a My address is cl L�j . (.s"' 5��• (-, 2dc� �jC l t?�Y� r� , t ��� u� %q'- (street) (city) (state) (zip code) (country) I declare under penalty of perjury that the foregoing is true and correct. Executed in +�"'r County, State of � 2� on the2R day of AL r .20 7- —. (nmth) (year) r Signature of authorized age f contracting business entity (Deda nt) Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V3.5.1.eb87042 Signature: „p,, om Signature: Email: melissa.brunner@fortworthtexas.gov Email: