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HomeMy WebLinkAboutContract 44430 (2)c� sECR��� �i�1 �c� ���� �a ,.�.__.,..� Between CITY OF FORT WORTH and ENERCON SERVICES, INC. For ENVIRONMENTAL AND ENGINEERING CONSULTING SERVICES ENV 13-01: EECS Transportation & Public Works Department Environmental Management Division April 2013 o�F�ciaa. ��co�� ���'v s��R��°�►�t� �% �MC#��'�� �'� ' RECEIVEU MAy � 4 ������ M&C Review CITY COUNCIL AGENDA COUNCIL ACTION: Approved on 4/23/2013 DATE: 4/23/2013 REFERENCE NO.: **C-26209 LOG NAME: PUBLIC CODE: C TYPE: CONSENT HEARING: Page 1 of 2 Official site of the City of Fort Worth, Texas FORT �'�'ORTI1 -_�T'_- 20EECS CONTRACT 2013 NO SUBJECT: Authorize Execution of a Professional Services Contract with Enercon Services, Inc., in the Amount of $400,000.00 for Environmental and Engineering Consulting Services (ALL COUNCIL DISTRICTS) RECOMMENDATION: It is recommended that the City Council authorize the execution of a professional services contract with Enercon Services, Inc., for environmental and engineering consulting services not to exceed $400,000.00 for a period of one year with two one-year renewal options. DISCUSSION: This professional services contract provides resources to enhance Staff regarding State and Federal environmental compliance including the Clean Air Act, Clean Water Act, hazardous waste issues, the City's Petroleum Storage Tank Remediation Program and other environmental projects. Contract services also provide specialized services when required to ensure projects meet stringent regulatory requirements. A Request for Qualifications (RFQ) was advertised on December 12, 2012. Responses were submitted by eleven firms on January 17, 2013. Submittals from each of the 11 firms were reviewed and rated based on the published weighted selection criteria. Enercon Services, Inc., was selected as the most highly qualified provider, based on demonstrated competence and qualifications to perform the services in accordance with Chapter 2254 of the Texas Government Code. RENEWAL OPTIONS — This contract may be renewed for up to two successive one-year terms at the City's option. Renewal may be effected by notice in writing by the City Manager, or his designee, to the contractor within 30 days of the expiration of the prior term. This action does not require specific City Council approval, provided that the City Council has appropriated sufficient funds to satisfy the City's obligations during the renewal term. M/WBE OFFICE: Enercon Services, Inc., is in compliance with the City's Business Diversity Ordinance by committing to 15 percent MBE (African American) participation. The City's goal on this project is 15 percent. This contract serves the entire city. FISCAL INFORMATION/CERTIFICATION: The Financial Management Services Director certifies that funds will be available in the current operating budget, as appropriated, of the Environmental Management Project Fund. TO Fund/Account/Centers FROM Fund/Account/Centers R101 531200 020031000000 $400,000.00 http://apps.cfwnet.org/council�acicet/mc_review.asp?ID=18193&councildate=4/23/2013 5/8/2013 M&C Review Submitted for City Manager's Office b� Originating Department Head: Additional Information Contact: Fernando Costa (6122) Douglas W. Wiersig (7801) Michael Gange (6569) ATTACHMENTS Page 2 of 2 http://apps.cfwnet.org/council�acicet/mc_review.asp?ID=18193&councildate=4/23/2013 5/8/2013 STATE OF TEXAS COUNTY OF TARRANT � �.� KNOWN ALL BY THESE PRESENTS: This Contract is entered into by and between the City of Fort Worth ("City"), a home-rule municipality located within Tarrant, Denton, Parker, and Wise Counties, Texas, acting through Fernando Costa, its duly authorized Assistant City Manager, and Enercon Services, Inc., an Oklahoma corporation ("Contractor"), acting through John R. Corn, its duly authorized Vice President. City and Contractor may be referred to herein individually as a Party, or collectively as the Parties. WITNESSETH: That for and in consideration of mutual covenants and agreements herein contained, the Parties hereto mutually agree as follows: ARTICLE 1. DEFINITIONS C� means the City of Fort Worth. Change Order means an officially authorized and executed written amendment to this contract or to a Task Order, issued by the City. Contract Documents means the Request for Qualifications, attachments, pre-bid amendments, and appendices to the Request for Qualifications, the Contractor's response to the Request for Qualifications, and all ancillary documents submitted with the Contractor's response to the Request for Qualifications. Contractor means Enercon Services, Inc. Notice to Proceed means the official letter issued by the City, pursuant to the Code of the City of Fort Worth and City ordinances and policies that authorizes Contractor to begin work. ; Task Order means an officially authorized and executed written description and specification directing the Contractor to perform specific services within the scope of this contract, issued by the City. Professional Services Contract Page 1 of 21 Enercon Services, Inc. ARTICLE 2. SERVICES Contractor hereby agrees to perform as an independent contractor the services set forth in the Scope of Work attached hereto as Attachment "A". This contract is to provide the City of Fort Worth with professional services for environmental and engineering consulting projects during the term of the agreement. There is no guarantee of work granted by this contract and nothing in this contract is to be construed as an exclusive agreement with the contractor to provide the City with professional services of this type, or as an agreement by the City to guarantee the Contractor any specific projects or quantities of work. THERE IS NO MINIMUM GUARANTEE OF ANY WORK UNDER THIS CONTRACT. Individual projects will be authorized on a Task Order basis when the City elects to proceed with each specific effort. 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 on a duly executed Task Order or Change Order. 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. ARTICLE 3. COMPENSATION Section 1. Fee Schedule. City and Contractor agree to the unit prices, employee labor rates, and other costs as specified in this contract. Contractor shall be compensated in accordance with the Fee Schedule shown in Attachment "B". Payment shall be considered full compensation for all labor, materials, supplies, and equipment necessary to complete the services described in Attachment "A". However the total fee paid by the City shall not exceed a total of four hundred thousand dollars ($400,000) and the City will not be liable for any Contractor fees, costs, or other remuneration in excess of this amount unless the City has signed and issued a formal modification to this contract. Section 2. Task Orders. City will issue a Task Order to Contractor that details the work to be performed by the Contractor. Task Orders will include at a minimum a unique Task Order Number, project address, scope of work, date to commence work, time period to complete work and the not to exceed payment amount for the task. Professional Services Contract Page 2 of 21 Enercon Services, Inc. Section 3. Invoice and Payment. The Contractor shall provide monthly invoices to the City. All invoices must reflect the City Task Order number. Invoices shall contain a detailed breakdown ' to include: labor including employee name, functional title, date and hours of work performed; internal supplies and services provided; and external supplies and services provided. Contractor shall submit a final, comprehensive invoice within 30 days of the ' completion of work performed for each Task Order. The final invoice shall include all charges related to work performed under the Task Order including subcontracted work. The City's preference is that the final invoice be submitted concurrently with the delivery of the final report or other deliverable, as applicable. 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 resolved. City will exercise reasonableness in contesting any billing or portion thereof. The Contractor shall also provide the City with quarterly updates showing the total and itemized costs incurred to the City for each task ordered and the amount remaining in the contract not-to-exceed amount. Contractor shall receive no additional compensation for work delays or hindrances except when direct and unavoidable extra costs to the Contractor are caused by the City's gross negligence. � Unless terminated pursuant to the terms herein, this Agreement shall be for a � term of one year, beginning upon the date of its execution. In addition, the term ; ; may be extended by mutual agreement of the parties, for up to two (2) one-year terms. ARTICLE 5. INDEPENDENT CONTRACTOR Contractor shall operate hereunder as an independent contractor, and not as an officer, agent, servant, or employee of the City. Contractor shall have exclusive Professional Services Contract Page 3 of 21 Enercon Services, Inc. control of and the exclusive right to control the details of its work to be performed hereunder and all persons perForming same, and shall be solely responsible for the acts and omissions of its officers, agents, employees, contractors and subcontractors. The doctrine of respondeat superior shall not apply as between City and Contractor, its officers, agents, employees, contractors, and subcontractors, and nothing herein shall be construed as creating a partnership or joint venture between City and Contractor. ARTICLE 6. PROFESSIONAL COMPETENCE AND INDEMNIFICATION Work perFormed by Contractor shall comply in all aspects with all applicable local, state and federal laws and with all applicable rules and regulations promulgated by the local, state and national boards, bureaus and agencies. Approvals issued by the City or another entity shall not constitute or be deemed to be a release of the responsibility and liability of Contractor or its officers, agents, employees, contractors and subcontractors for the accuracy and competency of its services perFormed hereunder, which shall be perFormed in accordance with the applicable professional standard of care. In accordance with Texas Local Government Code Section 271.904, the Contractor shall indemnify, hold harmless, and defend the City against liability for any damage caused by or resulting from an act of negligence, intentional tort, intellectual property infringement, or failure to pay a subcontractor or supplier committed by the Contractor or Contractor's agent, contractor under contract, or another entity over which the Contractor's exercises control. ARTICLE 7. INTELLECTUAL PROPERTY Section 1. Rights in data. The City shall have unlimited rights in all data delivered under this contract, and in all data first produced in the performance of this contract. Section 2. Intellectual property rights and ownership. All work product developed by Contractor under this contract shall be the sole property of the City and the City shall have unlimited rights in such work product. All work product developed by Contractor under this contract shall be considered "work for hire" and rights, title, and interests to all intellectual property shall vest in the City. Contactor affirmatively, by executing this contract, disclaims all such intellectual property interests in favor of the City. Professional Services Contract Page 4 of 21 Enercon Services, Inc. in the event that any rights, title, or interest shall by operation of law or otherwise fail to vest in the City or become void or voidable, Contractor shall a) transfer all rights, title, and interest to intellectual property to the City; or alternatively and at the discretion of the City the Contractor shall b) grant an unlimited and exclusive license for publication, sale, reproduction, or use by the City and its authorized sublicensees of all intellectual property developed under this contract. Contractor agrees to timely execute any documents or take any other actions as may reasonably be necessary, or as the State may reasonably request, to perfect the State's ownership, license, or other rights to any work product. Contractor shall not use, sell, transfer, or authorize a third party to use any work product, copyrights, trademarks, or other intellectual property (or derivatives thereof) of the work product developed under this contract without the express written consent of the City. ARTICLE 8. INDEMNIFICATION Section 1. Definitions. In this paragraph, the following words and phrases shall be defined as follows: 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 work perFormed under this contract or by the operations of the Contractor and Subcontractors, 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 Professional Services Contract Page 5 of 21 Enercon Services, Inc. such monitoring wells or violations or environmental requirements, and including without limitation any attorney's fees, costs and expenses incurred in enforcing this contract or collecting any sums due hereunder; and c. Liability to any third person or governmental agency to indemnify such person or agency for costs expended in connection with the items referenced in subparagraph (b) herein. Environmental requirements shall mean all applicable present and future statutes, regulations, rules, plans, authorizations, concessions, franchises, and similar items, 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: a. 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, surFacewater, groundwater, stormwater, 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 b. All requirements pertaining to the protection of the health and safety of employees or the public. Section 2. General Indemnification. CONTRACTOR DOES HEREBY RELEASE, INDEMNIFY, REIMBURSE, DEFEND, AND HOLD HARMLESS THE CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES, FROM AND AGAINST ANY AND A�L LIABILITY, C�AIMS, SUITS, DEMANDS, OR CAUSES OF ACTIONS WHICH MAY ARISE DUE TO ANY LOSS OR DAMAGE TO PERSONA� PROPERTY, OR PERSONAL INJURY, AND/OR DEATH, OCCURRING AS A CONSEQUENCE OF THE CONTRACTOR'S OPERATIONS UNDER THIS AGREEMENT, WHEN SUCH INJURIES, DEATH, OR DAMAGES ARE CAUSED BY THE SOLE NEGLIGENCE OF CONTRACTOR, ITS OFFICERS, AGENTS, EMPLOYEES, OR CONTRACTORS, OR THE JOINT NEGLIGENCE OF CONTRACTOR, ITS OFFICERS, AGENTS, EMPLOYEES, OR CONTRACTORS AND ANY OTHER PERSON OR ENTITY. Section 3. Professional Services Contract Page 6 of 21 Enercon Services, Inc. Environmental Indemnification. CONTRACTOR DOES HEREBY RELEASE, INDEMNIFY, DEFEND, REIMBURSE, AND HOLD HARMLESS THE CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES, AGAINST ANY AND A�L 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 ENVIRONMENTA� 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. Section 4. The obligations of the Contractor under this Article 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. 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. 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. 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. ARTICLE 9. INSURANCE Section 1. Insurance coverage and limits 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. Professional Services Contract Page ? of 21 Enercon Services, Inc. 1. Commercial General Liability $5,000,000 each occurrence $5,000,000 aggregate 2. Professional Liability $2,000,000 each claim, or $5,000,000 aggregate Professional Liability Insurance shall be written on a project specific basis. The retroactive date shall be coincident with or prior to the date of this contract and the certificate of insurance shall state that the coverage is claims-made and the retroactive date. The insurance coverage shall be maintained for the duration of this contract and for five (5) years following completion of the contract (Tail Coverage). An annual certificate of insurance shall be submitted to the City for each year following completion of this contract. 3. Automobile Liability $1,000,000 each accident or $250,000 property damage /$500,000 bodily injury per person per accident 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. Worker's Compensation Coverage A: statutory limits Coverage B: $100,000 each accident $500,000 disease - policy limit $100,000 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). Professional Services Contract Page 8 of 21 Enercon Services, Inc. Section 2. Additional Insurance Requirements 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 specified herein. 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 premium payments. Professional Senrices Contract Page 9 of 21 Enercon Services, Inc. 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 Contractor. When subcontractors maintain insurance coverage, Contractor shall provide City with documentation thereof on a certificate of insurance. 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. ARTICLE 10. LICENSES AND PERMITS Contractor certifies and warrants that on the day any work is to commence under this contract and during the duration of the contract it shall have and maintain all of the current, valid, and appropriate federal, state, and local licenses and permits necessary for the provision of services under this contract. Contractor also certifies that if it uses any subcontractor in the performance of this contract, that such subcontractor shall have and maintain all of the current, valid, and appropriate federal, state, and local licenses and permits necessary for the provision of services under this contract. .- ::► : •:: ►u'► 1 City and Contractor each bind themselves, and their lawful successors and assigns, to this Agreement. Contractor has been engaged as a consequence of Contractor's specific and unique skills; Assignment will only be granted under unusual circumstances and at the sole discretion of the City. Contractor, its lawful successors and assigns, shall not assign, sublet or transfer any interest in this Agreement without prior written consent of the City. ARTICLE 12. RIGHT TO AUDIT Professional Services Contract Page 10 of 21 Enercon Services, Inc. (a) Contractor agrees that the City shall, until the expiration of three (3) years after final payment under this Agreement, have access to and the right to examine any directly pertinent books, documents, papers and records of Contractor involving transactions relating to this Agreement. Contractor agrees that the City shall have access during normal working hours to all necessary facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. City shall give Contractor reasonable advance notice of intended audits. (b) Contractor further agrees to include in all its subcontracts hereunder, a provision to the effect that the subcontracting contractor agrees that the City shall, until the expiration of three (3) years after final payment under the subcontract, have access to and the right to examine any directly pertinent books, documents, papers and records of such subcontractor, 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 Contractor and any subcontractor reasonable advance notice of intended audit. (c) Contractor and subcontractors agree to photocopy such documents as may be requested by the City. The City agrees to reimburse Contractor for the cost of copies at the rate published in the Texas Administrative Code in effect as of the time copying is perFormed. ARTICLE 13. DIVERSITY BUSINESS ENTERPRISE (DBE) 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 City contracts. Unless a waiver of DBE goals has been authorized by the City, Contractor 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. ARTICLE 14. 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. Professional Services Contract Page 11 of 21 Enercon Services, Inc. Contractor agrees not to discriminate against any employee or applicant for 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, 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. 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. Notices, advertisements, and solicitations placed in accordance with federal law, rule or regulation shall be deemed sufficient for the purpose of ineeting the requirements of this section. ARTICLE 15. 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 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 harmless City and all of its officers, agents and employees from and against all claims or liability arising out of the violation of any such order, law, ordinance, or regulation, whether it be by itself or its employees. ARTICLE 16. DEFAULT If Contractor fails to begin work or to complete work within the time specified in a Task Order City shall have the right to take charge of and complete the work in such a manner as it deems appropriate. If the City exceeds the costs detailed herein or in the Task Order, City may deliver to Contractor a written itemized statement of the excess costs and Contractor shall reimburse the City for such excess costs without delay. Professional Services Contract Page 12 of 21 Enercon Services, Inc. If at any time during the terms of this contract, the work of the Contractor fails to meet the specifications of the Contract Documents or to meet the standards of duty, care, or proficiency of a reasonable and competent Contractor, City may notify the Contractor of the deficiency in writing. Failure of the Contractor to correct such deficiency and complete the work required under this contract or a Task Order to the satisfaction of the City within ten (10) days after written notice shall constitute default, and shall result in termination of this contract. Contractor shall not be deemed to be in default because of any failure to perform under this contract if the failure arises solely from causes beyond the control of the Contractor and without any fault or negligence by the Contractor. Such causes shall include acts of God, acts of war or terrorism, fires, floods, epidemics, quarantine restrictions, labor strikes, freight embargoes, and events of unusually severe weather. ARTICLE 17. TERMINATION City may terminate this contract without cause by giving thirty (30) days written notice to Contractor. In the event of termination, any work in progress will continue to completion unless otherwise specified in the notice of termination. If the City terminates this contract under this provision, City shall pay Contractor for all services performed prior to the termination. Termination shall be without prejudice to any other remedy the City may have. All data and completed or partially completed documents prepared under this contract shall be promptly turned over to the City upon termination of this contract. ARTIC�E 18. VENUE AND JURISDICTION If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas — Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. ARTICLE 19. 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. Professional Services Contract Page 13 of 21 Enercon Services, Inc. '' 1 ■_ �� \ 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. ARTICLE 21. COUNTERPARTS This Agreement may be executed in one or more counterparts and each counterpart shall, for all purposes, be deemed an original, but all such counterparts shall together constitute but one and the same instrument. ARTICLE 22. SEVERABILITY The provisions of this Agreement are severable, and if any word, phrase, clause, sentence, paragraph, section or other part of this Agreement or the application thereof to any person or circumstance shall ever be held by any court of competent jurisdiction to be invalid or unconstitutional for any reason, the remainder of this Agreement and the application of such word, phrase, clause, sentence, paragraph, section, or other part of this Agreement to other persons or circumstances shall not be affected thereby and this Agreement shall be construed as if such invalid or unconstitutional portion had never been contained therein. ARTICLE 23. 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. All costs and attorneys fees incurred by the City in the enforcement of any provision of this contract shall be paid by the Contractor. The remedies provided for herein are in addition to any other remedies available to the City elsewhere in this contract and by law. Professional Services Contract Page 14 of 21 Enercon Services, Inc. ARTICLE 24. NOTICES Notices to be provided hereunder shall be sufficient if forwarded to the other Party by hand-delivery or via U.S. Postal Service certified mail return receipt requested, postage prepaid, to the address of the other Party shown below: If to the City: City of Fort Worth Michael Gange, Assistant Director Transportation and Public Works Department 1000 Throckmorton Street Fort Worth, Texas 76102-6311 If to the Contractor: John Corn, P. E. Vice-President Enercon Services, Inc. 5100 East Skelly Drive, Suite 450 Tulsa, Oklahoma 74135 ARTICLE 25. WARRANTY Contractor warrants that it understands the currently known hazards and suspected hazards which are presented to persons, property and the environment by contaminated soils, both generally and with specific regard to this project. 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. ARTICLE 26. 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 own contracts or commitments. ARTICLE 27. ENTIRETY Professional Services Contract Page 15 of 21 Enercon Services, Inc. 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, regardi�ng 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 this contract and any other contract documents, then the terms of this contract shall govern. ATTACHMENT A. SCOPE OF WORK THERE IS NO GUARANTEE OF ANY WORK UNDER THIS CONTRACT, however the types of work which the Contractor will perform upon specific written authorization by the Citv shall include the following, and related environmental and engineering consulting services: • Leaking Petroleum Storage Tank (LPST) site investigation, monitoring, remediation, and/or closure including necessary field work, data collection and analysis, reporting, etc. • Oversight of underground storage tank removal, soil and groundwater sampling, and report preparation to achieve site closure, etc. • Phase I Environmental Site Assessments in strict accordance with the All Appropriate Inquiries Final Rule. • Phase II Environmental Site Assessments including potential impacts to soil, groundwater, surface water, and air. • Site remediation, including developing a cleanup strategy under the appropriate TCEQ program and picking the proper cleanup level for a particular site, overseeing the cleanup, providing appropriate documentation to TCEQ during the cleanup process, and seeing the cleanup through to closure. • National Environmental Protection Act (NEPA) associated Categorical Exclusion criteria reports. • Storm water pollutant concentration modeling in municipal waterways, sewers, and storm drains. • Groundwater water flow issues associated with complex subsurface characteristics including natural and man-made features. Design, installation and monitoring of subsurFace systems for groundwater flow control, groundwater treatment, etc. Professional Services Contract Page 16 of 21 Enercon Services, Ina • Air pollution modeling and preparation of reports regarding air toxics, particulate matter and other pollutants. • Design and construction management of structures, systems, and '' components intended to collect and/or prevent pollutants from entering the municipal separate storm sewer system (MS4). • Volatile Organic Compound (VOC) impacts to soil and groundwater including source identification, monitoring/delineation, and active/passive remediation. • Permitting natural gas wells, natural gas compressor stations, and other natural gas related facilities including air, storm water, and waste handling requirements. Experience in conducting point source emission testing and ambient air testing must be included. Additionally, direct experience in perForming health analysis based on direct measurements, ambient air results and modeling results. • Housing and Urban Development (HUD) compliant Noise Assessments in accordance with 24 CFR 51, B. This list is intended to be illustrative and not exhaustive, and similar or related services may be ordered subject to the terms of this contract and as authorized by the City. The Remainder of This Page is Intentionally Left Blank Professional Services Contract Page 17 of 21 Enercon Services, Inc. ATTACHMENT B. FEE SCHEDULE Prices for professional services rendered under this contract will be as specified in the schedule provided by the Contractor, which follows in this attachment. The total fee for services under this contract shall not exceed $400,000. PERSONNEL CHARGES: Enercon Services, Inc. (ENERCON) performs engineering and technical consulting services on a time and materials basis. The hourly fee for personnel is shown in the table below. The indicated hourly rates include direct employee costs such as salary, insurance, vacation, holidays, worker compensation, taxes, other employee costs, and profit and overhead. PROJECT ASSIGNMENT/ STRAIGHT TIME OVERTIME TITLE RATE ($/HR) FACTOR Program QA/QC 110.00 1.0 Program Manager 105.00 1.0 Project Manager* 100.00 1.0 Senior Scientist/Engineer 90.00 1.0 Scientist/Engineer I 80.00 1.0 Scientist/Engineer II 75.00 1.0 Scientist/Engineer III 70.00 1.0 Technical Specialist I 65.00 1.0 Technical Specialist II 55.00 1.0 Clerical 45.00 1.25 * Includes Professional Enaineer (P.E.) and Professional Geoscientist (P.G.) Scientist and engineering positions require experience and education in the engineering, geological science, biological science, and/or related fields. Scientists and Engineers include biologists, hydrogeologists, geologists, environmental specialists, and other science disciplines. The overtime rate is the straight time billing rate times the overtime factor for the position. For levels 2- 10 the overtime rate is the same as the straight time rate Professional Services Contract Page 18 of 21 Enercon Services, Inc. EQUIPMEIVT CHARGES: On some projects, specialized equipment must be used to complete the job effectively, efficiently, and safely. The table below gives the unit rates specified equipment will be billed at on time and materials projects. EQUIPMENT RATE ($) PI D/OVM 85.00/day Oil/VI/ater InterFace Probe 75.00/day LEL/02/H2S/CO Meter 75.00/day Ph, SC, Temp. Meter 100.00/day Turbidity Meter 35.00/day Soil Gas Kit 75.00/day Soil Probe/Auger Kit 75.00/day Generator 100.00/day Opacity Instruments (Clinometer, 15.00/day Compass, Humidity/Temp, Windmeter) 1-liter Disposable Bailers 6.00/each 1050 cc Teflon Bailers 35.00/day 350 cc Teflon Bailers 25.00/day Well Pump and Hoses 60.00/day PPE (includes tyvek, nomex, boots, gloves, hard hat, safety glasses) 50.00/man/day Respirator 20.00/man/day Company Vehicles (passenger cars and �RS Approved Rate light trucks) OTHER DIRECT COSTS: The client will be invoiced for other direct costs accrued in connection with authorized work assignments at actual cost plus ten (10) percent. These costs shall include, but not be limited to, the following: Transportation and Living Expenses Communication Expense (Telephone, Postage, Express Delivery Services, etc.) Printing and Reproduction Expense Professional Services Contract Page 19 of 21 Enercon Services, Inc. SUBCONTRACTORS: Subcontractors will be invoiced at cost plus ten (10) percent. These costs include excavation, drilling, and other specialty service companies. INVOICING: Invoices are issued monthly and payable within thirty (30) days. ENERCON invoices list total hours, billing rate, total personnel charges, travel and living expenses, and other applicable costs. Amounts outstanding after thirty (30) days from the date of the invoice will be subject to a late charge of one and one-half (1'/2) percent per month. The Remainder of This Page is Intentionally Left Blank Professional Services Contract Page 20 of 21 Enercon Services, Inc. i� IN WITNESS THEREOF, the parties hereto have made and executed this Agreement in multiple originals on the dates written below, in Fort Worth, Tarrant County, Texas. CITY OF FORT WORTH: • �j Fernando Costa Assistant City Manag r Date Signed: S" /3 RECOMMENDED: Michael A. Assistant [ APPROVED AS TO FORM AND LEGALITY: � �� �� U�--�� Arthur N. Bashor Assistant City Attorney ATTEST: �, Mary J. Kay�� City Secretary Date Professional Services Contract Enercon Services, Inc. ENERCON SERVICES, INC. ( ��-������1�-��� Seal: �FFI�IA�L �E��►R� !�1'�'Y �����"R'�►R�' �'D'. o0irf.�1�'Hl� '� Page 21 of 21 I��� VENDOR COMPLIANCE TO STATE LAW The 1985 Session of the Texas Legislature passed House Bill 620 relative to the award of contracts to non-resident bidders. This law provides that, in order to be awarded a contract as low bidder, non-resident bidders (out of state contractors whose corporate offices or principal place of business are outside of the State or Texas) bid projects for construction, improvements, supplies or services in Texas at an amount lower than the lowest Texas resident bidder by the same amount that a Texas resident bidder would be required too underbid a non-resident bidder in order to obtain a comparable contract in the State in which the non-resident's principal place of business is located. The appropriate blanks in Section A must be filled out by all out-of-state or non-resident bidders in order for your bid to meet specifications. The failure of out-of-state or non-resident contractors to do so will automatically disqualify that bidder. Resident bidders must check the box in Section B. A. Non-Resident vendors in (give State), our principal place of business, are required to be percent lower than resident bidders by State law. A copy of the Statute is attached. Non-resident vendors in (give State), our principle place of business, are not required to underbid resident bidders. B. Our principle place of business or corporate office(s) is in the State of Texas. � : ..- Enercon Services Inc. 15770 North Dallas Parkwav Dallas, Texas 75248 John R. Corn By: (Please Print) Title (Please Print) Vice President i� � CONTRACTOR COMPLIANCE WITH WORKERS' COMPENSATION LAW Pursuant to V.T.C.A. Labor Code §406.96 (2000), as amended, Contractor certifies that '' it provides workers' compensation insurance coverage for all of its employees employed on City of Fort Worth Department of Transportation and City of Fort Worth Project No. , � '�, ENV 13-01 :EECS. CONTRACTOR Enerco.n Servic By: e: Jc�hn R . Corn V�ce President Date: 5/ 01 / 2 01 3 STATE OF TEXAS COUNTY OF TARRANT . Before me, the undersigned authority, on this day personally appeared ,Tohn R. Corn , known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same as the act and deed of Enercon Services, Inc. for the purposes and consideration therein expressed and in the capacity therein stated. Given Under My Hand and Seal of Office this � day of Ma..�, 20�. 1 � �ir� �K o cau�t �► c«�a.+.� �.Nn. Jw� t�. l8t� ''++E ..+r' �, . aQ�X� Nota y Public in and for the State of Texas CERTIFICATE OF INSURANCE TO: CITY OF FORT WORTH Date: April 23. 2013 NAME OF PROJECT: Environmental En�ineerin� Consultin� Services Annual Contract PROJECT NUMBER: ENV 13:01- EECS CONTRACTOR: Enercon Services, Inc. 15770 North Dallas Parkway Dallas, Texas 75248 Please'staple your Accord insurance farm ta this page: Your insurance form should list the Cify of Fort Worth as the additionaliy insured,