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HomeMy WebLinkAboutContract 60146CSC No. 60146 FORT WORTH, ASBESTOS, MOLD, AND INDUSTRIAL HYGIENE PROFESSIONAL SERVICES AGREEMENT This ASBESTOS, MOLD, AND INDUSTRIAL HYGIENE PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into by and between the CITY OF FORT WORTH ("City"), a Texas home rule municipal corporation, acting by and through its duly authorized Assistant City Manager, and INDUSTRIAL HYGIENE AND SAFETY TECHNOLGY, INC. ("Contractor"), a Texas corporation, acting by and through its duly authorized representative, each individually referred to as a "party" and collectively referred to as the "parties." Definitions. Purchase Order means an officially authorized and executed written description and specification directing the Contractor to perform specific services within the scope of this Agreement, issued by the City. 1. Scope of Services. Services under this Agreement include labor, materials, and equipment necessary to provide professional asbestos, mold, and industrial hygiene services ("Services"), which are set forth in more detail in Exhibit "A," attached hereto and incorporated herein for all purposes. 2. Term. This Agreement begins on September 6, 2023 ("Effective Date") and expires on October 31, 2023 ("Expiration Date"), unless terminated earlier in accordance with this Agreement ("Initial Term"). 3. Comuensation. City will pay Contractor in accordance with the provisions of this Agreement, including Exhibit `B," which is attached hereto and incorporated herein for all purposes. Total compensation under this Agreement will not exceed Twenty Thousand Dollars and 00/100 ($20,000.00). Contractor will not perform any additional services or bill for expenses incurred for City not specified by this Agreement unless City requests and approves in writing the additional costs for such services. Individual projects will be authorized on a case -by -case basis when the City or City -approved environmental contractor elects to proceed with each specific effort by submitting samples and associated Chain of Custody documentation. City shall not pay for any work performed by Contractor or its contractors, subcontractors, or suppliers that has not been specifically ordered by the City in writing on a duly executed Task Order. Contractor shall not be compensated for any work that is verbally ordered by any person and shall rely only upon written Task Orders. City will not be liable for any additional expenses of Contractor not specified by this Agreement unless City first approves such expenses in writing. THERE IS NO MINIMUM GUARANTEE OF ANY WORK UNDER THIS AGREEMENT. 4. Invoice and Pavment. City will issue a Purchase Order to Contractor that details the work to be performed by the Contractor. The Contractor shall provide monthly invoices to the City. All invoices must reflect the Purchase Order number. Invoices shall contain a detailed breakdown to include: labor Asbestos, Mold, and Industrial Hygiene Professional Services Industrial Hygiene and Safety Technology, Inc. OFFICIAL RECORD Page 1 of 17 CITY SECRETARY FT. WORTH, TX including employee name, functional title, date and hours of work performed; internal supplies and services provided; and external supplies and services provided. 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. 5. Termination. 5.1. Written Notice. City may terminate this Agreement at any time and for any reason by providing the Contractor with written notice of termination. Contractor may terminate this Agreement at any time for any reason by providing the City with thirty (30) days' written notice of termination. 5.2 Non -appropriation of Funds. In the event no funds or insufficient funds are appropriated by City in any fiscal period for any payments due hereunder, City will notify Contractor of such occurrence and this Agreement will terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds have been appropriated. 5.3 Duties and Obligations of the Parties. In the event that this Agreement is terminated prior to the Expiration Date, City will pay Contractor for services actually rendered up to the effective date of termination and Contractor will continue to provide City with services requested by City and in accordance with this Agreement up to the effective date of termination. Upon termination of this Agreement for any reason, Contractor will provide City with copies of all completed or partially completed documents prepared under this Agreement. In the event Contractor has received access to City Information or data as a requirement to perform services hereunder, Contractor will return all City provided data to City in a machine-readable format or other format deemed acceptable to City. 6. Disclosure of Conflicts and Confidential Information. 6.1 Disclosure of Conflicts. Contractor hereby warrants to City that Contractor has made full disclosure in writing of any existing or potential conflicts of interest related to Contractor's services under this Agreement. In the event that any conflicts of interest arise after the Effective Date of this Agreement, Contractor hereby agrees immediately to make full disclosure to City in writing. 6.2 Confidential Information. Contractor, for itself and its officers, agents and employees, agrees that it will treat all information provided to it by City ("City Information") as confidential and will not disclose any such information to a third party without the prior written approval of City. Asbestos, Mold, and Industrial Hygiene Professional Services Industrial Hygiene and Safety Technology, Inc. Page 2 of 17 6.3 Public Information Act. City is a government entity under the laws of the State of Texas and all documents held or maintained by City are subject to disclosure under the Texas Public Information Act. In the event there is a request for information marked Confidential or Proprietary, City will promptly notify Contractor. It will be the responsibility of Contractor to submit reasons objecting to disclosure. A determination on whether such reasons are sufficient will not be decided by City, but by the Office of the Attorney General of the State of Texas or by a court of competent jurisdiction. 6.4 Unauthorized Access. Contractor must store and maintain City Information in a secure manner and will not allow unauthorized users to access, modify, delete or otherwise corrupt City Information in any way. Contractor must notify City immediately if the security or integrity of any City Information has been compromised or is believed to have been compromised, in which event, Contractor will, in good faith, use all commercially reasonable efforts to cooperate with City in identifying what information has been accessed by unauthorized means and will fully cooperate with City to protect such City Information from further unauthorized disclosure. 7. RiLFht to Audit. Contractor agrees that City will, until the expiration of three (3) years after final payment under this Agreement, or the final conclusion of any audit commenced during the said three years, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records, including, but not limited to, all electronic records, of Contractor involving transactions relating to this Agreement at no additional cost to City. Contractor agrees that City will have access during normal working hours to all necessary Contractor facilities and will be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. City will give Contractor reasonable advance notice of intended audits. 8. Reserved. 9. Indenendent Contractor. It is expressly understood and agreed that Contractor will operate as an independent contractor as to all rights and privileges and work performed under this Agreement, and not as agent, representative or employee of City. Subject to and in accordance with the conditions and provisions of this Agreement, Contractor will have the exclusive right to control the details of its operations and activities and be solely responsible for the acts and omissions of its officers, agents, servants, employees, Contractors, and subcontractors. Contractor acknowledges that the doctrine of respondeat superior will not apply as between City, its officers, agents, servants and employees, and Contractor, its officers, agents, employees, servants, contractors, and subcontractors. Contractor further agrees that nothing herein will be construed as the creation of a partnership or joint enterprise between City and Contractor. It is further understood that City will in no way be considered a Co -employer or a Joint employer of Contractor or any officers, agents, servants, employees, contractors, or subcontractors. Neither Contractor, nor any officers, agents, servants, employees, contractors, or subcontractors of Contractor will be entitled to any employment benefits from City. Contractor will be responsible and liable for any and all payment and reporting of taxes on behalf of itself, and any of its officers, agents, servants, employees, contractors, or contractors. 10. Liability and Indemnification. 10.1 LIABILITY- CONTRACTOR WILLBELIABLEANDRESPONSIBLEFORANYANDALL PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR Asbestos, Mold, and Industrial Hygiene Professional Services Industrial Hygiene and Safety Technology, Inc. Page 3 of 17 OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF CONTRACTOR, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, OR SUBCONTRACTORS. 10.2 GENERAL INDEMNIFICATION- CONTRACTOR HEREBY COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, FOR EITHER PROPERTYDAMAGE OR LOSS (INCL UDING ALLEGED DAMAGE OR LOSS TO CONTRACTOR'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CA USED BY THE NEGLIGENT ACTS OR OMISSIONS OR MALFEASANCE OF CONTRACTOR, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, OR SUBCONTRACTORS. 10.3 INTELLECTUAL PROPERTY INDEMNIFICATION —Contractor agrees to defend, settle, or pay, at its own cost and expense, any claim or action against City for infringement of any patent, copyright, trade mark, trade secret, or similar property right arising from City's use of the software and/or documentation in accordance with this Agreement, it being understood that this agreement to defend, settle or pay will not apply if City modifies or misuses the software and/or documentation. So long as Contractor bears the cost and expense of payment for claims or actions against City pursuant to this section, Contractor will have the right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise and to settle or compromise any such claim; however, City will have the right to fully participate in any and all such settlement, negotiations, or lawsuit as necessary to protect City's interest, and City agrees to cooperate with Contractor in doing so. In the event City, for whatever reason, assumes the responsibility for payment of costs and expenses for any claim or action brought against City for infringement arising under this Agreement, City will have the sole right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise and to settle or compromise any such claim; however, Contractor will fully participate and cooperate with City in defense of such claim or action. City agrees to give Contractor timely written notice of any such claim or action, with copies of all papers City may receive relating thereto. Notwithstanding the foregoing, City's assumption of payment of costs or expenses will not eliminate Contractor's duty to indemnify City under this Agreement. If the software and/or documentation or any part thereof is held to infringe and the use thereof is enjoined or restrained or, if as a result of a settlement or compromise, such use is materially adversely restricted, Contractor will, at its own expense and as City's sole remedy, either: (a) procure for City the right to continue to use the software and/or documentation; or (b) modify the software and/or documentation to make it non -infringing, provided that such modification does not materially adversely affect City's authorized use of the software and/or documentation; or (c) replace the software and/or documentation with equally suitable, compatible, and functionally equivalent non -infringing software and/or documentation at no additional charge to City; or (d) if none of the foregoing alternatives is reasonably available to Contractor terminate this Agreement, and refund all amounts paid to Contractor by City, subsequent to which termination City may seek any and all remedies available to City under law. Asbestos, Mold, and Industrial Hygiene Professional Services Industrial Hygiene and Safety Technology, Inc. Page 4 of 17 10.4 ENVIRONMENTAL INDEMNIFICATION. CONTRACTOR AGREES TO INDEMNIFY, HOLD HARMLESS, RELEASE, REIMBURSE, AND DEFEND, THE CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES AGAINST ANY AND ALL: (A) ENVIRONMENTAL DAMAGES, AS DEFINED HEREIN, THAT ARE RELATED TO ANY ENVIRONMENTAL REQUIREMENTS AS DEFINED HEREIN, INCLUDING ANY ACTS, OMISSIONS, OR LIABILITIES (INCLUDING STRICT LIABILITY) BY ANY PERSONS, AND (B) VIOLATIONS, ALLEGED VIOLATIONS, SUITS, OR CLAIMS RELATED TO ANY ENVIRONMENTAL REQUIREMENTS AS DEFINED HEREIN, INCLUDING ANY ACTS, OMISSIONS, OR LIABILITIES (INCL UDING STRICT LIABILITY) BY ANY PERSONS. 10.5 Definitions. The following words and phrases in this Section 10 shall be defined as follows: "Environmental Damages" shall mean all damages, losses, diminished values, claims, judgments, penalties, fines, liabilities, encumbrances, liens, costs, expenses of investigation, and the defense of any claim, whether or not such claim is ultimately defeated, results in a judgment or order of any kind, or is resolved by any good faith settlement, and of whatever kind or nature, direct or indirect, tangible or intangible, compensatory, exemplary, or punitive, economic or non -economic, contingent or otherwise, matured or unmatured, foreseeable or unforeseeable, to the City and any third parties, including without limitation reasonable attorney and consultant fees, any of the foregoing which are incurred as a result the Contractor's work, or due to negligence, or arising from a violation of any Environmental Requirements, or arising from strict liability, or an intentional tort, and whether any of the foregoing are attributable to the Contractor, a subcontractor, a vendor, employee, agent, successor, or assignee and including by way of example but not limited to: Damages for personal injury or death, pain and suffering, mental or emotional distress, injury to property of any kind or to natural resources, environmental contamination, or the loss of use or value of property; Fees incurred for the services of attorneys, consultants, engineers, contractors, experts, laboratories, and investigators related to any studies, cleanup, remediation, removal, response, abatement, containment, closure, restoration, monitoring work, civil or criminal defense, or the recovery of any other costs; Liability, claims, or judgments to any third persons or governmental agencies in connection with the items referenced herein; and Fines, penalties, costs, agreed orders, or settlements to any federal, state, or local government for violations of environmental laws, permits, standards, or regulations. "Environmental Requirements" shall mean the allowable or permissible levels, concentrations, or amounts of materials; all applicable present and future statutes, regulations, rules, permits, plans, or authorizations 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; and all common law causes of action; all of the above relating to the protection of human health or the environment and being inclusive of, but not limited to: Asbestos, Mold, and Industrial Hygiene Professional Services Industrial Hygiene and Safety Technology, Inc. Page 5 of 17 All requirements, including, but not limited to, those pertaining to reporting, licensing, permitting, facilities, sites, operations, emissions, discharges, releases, or threatened releases of wastes, substances, materials, pollutants, contaminants, hazardous wastes, petroleum products, toxic substances, materials, or other any other regulated or harmful substances whether solid, liquid, or gaseous into the air, surface water, groundwater, stormwater, or land, or relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport, or handling of elements, compounds, materials, substances, pollutants, contaminants, or hazardous or toxic materials, substances, or wastes, whether solid, liquid, or gaseous in nature; All requirements, including, but not limited to, those pertaining to reporting, licensing, permitting, facilities, sites, operations, emissions, discharges, releases, or threatened releases of radioactive materials or radiation or electromagnetic fields; All requirements pertaining to the protection of the environment, natural resources, the health and safety of employees or the public; Citizen suits authorized by any federal or state law; and All common law causes of action related to health, safety, natural resources, and the environment. II. Assignment and Subcontracting. 11.1 Assignment. Contractor will not assign or subcontract any of its duties, obligations or rights under this Agreement without the prior written consent of City. If City grants consent to an assignment, the assignee will execute a written agreement with City and Contractor under which the assignee agrees to be bound by the duties and obligations of Contractor under this Agreement. Contractor will be liable for all obligations of Contractor under this Agreement prior to the effective date of the assignment. 11.2 Subcontract. If City grants consent to a subcontract, the subcontractor will execute a written agreement with Contractor referencing this Agreement under which subcontractor agrees to be bound by the duties and obligations of Contractor under this Agreement as such duties and obligations may apply. Contractor must provide City with a fully executed copy of any such subcontract. 12. Insurance. Contractor must provide City with certificate(s) of insurance documenting policies of the following types and minimum coverage limits that are to be in effect prior to commencement of any Services pursuant to this Agreement: 12.1 Coverage and Limits (a) Commercial General Liability: $1,000,000 - Each Occurrence $2,000,000 - Aggregate (b) Automobile Liability: $1,000,000 - Each occurrence on a combined single limit basis Asbestos, Mold, and Industrial Hygiene Professional Services Industrial Hygiene and Safety Technology, Inc. Page 6 of 17 Coverage will be on any vehicle used by Contractor, or its employees, agents, or representatives in the course of providing Services under this Agreement. "Any vehicle" will be any vehicle owned, hired and non -owned. (c) Worker's Compensation: Statutory limits according to the Texas Workers' Compensation Act or any other state workers' compensation laws where the Services are being performed Employers' liability $100,000 - Bodily Injury by accident; each accident/occurrence $100,000 - Bodily Injury by disease; each employee $500,000 - Bodily Injury by disease; policy limit (d) Environmental Impairment Liability (" BIL") and Pollution Liability: $4,000,000 - Each Claim Limit $4,000,000 - Aggregate Limit EIL coverage must be included in policies listed in subsection (a) above; or, such insurance shall be provided under separate policies. Liability for damage occurring while loading, unloading and transporting materials collected under the Agreement shall be included under the Automobile Liability insurance or other policies. ANY POLLUTION EXPOSURE, INCLUDING ENVIRONMENTAL IMPAIRMENT LIABILITY, ASSOCIATED WITH THE SERVICES AND OPERATIONS PERFORMED UNDER THIS AGREEMENT SHALL BE COVERED; IN ADDITION TO SUDDEN AND ACCIDENTAL CONTAMINATION OR POLLUTION, LIABILITY FOR GRADUAL RELEASES, SPILLS, OR EMISSIONS AND ALL CLEAN-UP COSTS SHALL BE COVERED. (e) Professional Liability (Errors & Omissions): ❑ Applicable ❑ N/A $1,000,000 - Each Claim Limit $1,000,000 - Aggregate Limit Professional Liability coverage may be provided through an endorsement to the Commercial General Liability (CGL) policy, or a separate policy specific to Professional E&O. Either is acceptable if coverage meets all other requirements. Coverage must be claims -made, and maintained for the duration of the contractual agreement and for two (2) years following completion of services provided. An annual certificate of insurance must be submitted to City to evidence coverage. Asbestos, Mold, and Industrial Hygiene Professional Services Industrial Hygiene and Safety Technology, Inc. Page 7 of 17 12.2 General Reauirements (a) The commercial general liability and automobile liability policies must name City as an additional insured thereon, as its interests may appear. The term City includes its employees, officers, officials, agents, and volunteers in respect to the contracted services. (b) The workers' compensation policy must include a Waiver of Subrogation (Right of Recovery) in favor of City. (c) A minimum of Thirty (30) days' notice of cancellation or reduction in limits of coverage must be provided to City. Ten (10) days' notice will be acceptable in the event of non-payment of premium. Notice must be sent to the Risk Manager, City of Fort Worth, 200 Texas Street, Fort Worth, Texas 76102, with copies to the Fort Worth City Attorney at the same address. (d) The insurers for all policies must be licensed and/or approved to do business in the State of Texas. All insurers must have a minimum rating of A- VII in the current A.M. Best Key Rating Guide, or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below that required, written approval of Risk Management is required. (e) Any failure on the part of City to request required insurance documentation will not constitute a waiver of the insurance requirement. (f) Certificates of Insurance evidencing that Contractor has obtained all required insurance will be delivered to the City prior to Contractor proceeding with any work pursuant to this Agreement. 13. Compliance with Laws, Ordinances, Rules and Regulations. Contractor agrees that in the performance of its obligations hereunder, it will comply with all applicable federal, state and local laws, ordinances, rules and regulations and that any work it produces in connection with this Agreement will also comply with all applicable federal, state and local laws, ordinances, rules and regulations. If City notifies Contractor of any violation of such laws, ordinances, rules or regulations, Contractor must immediately desist from and correct the violation. 14. Licenses and Permits. Contractor certifies and warrants that on the day any work is to commence under this Agreement and during the duration of the Agreement 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 Agreement. Contractor also certifies that if it uses any subcontractor in the performance of this Agreement, 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 Agreement. 15. Non -Discrimination Covenant. Contractor, for itself, its personal representatives, assigns, contractors, subcontractors, and successors in interest, as part of the consideration herein, agrees that in the performance of Contractor's duties and obligations hereunder, it will not discriminate in the treatment or employment of any individual or group of individuals on any basis prohibited by law. IF ANY CLAIM ARISES FROM AN ALLEGED VIOLATION OF THIS NON-DISCRIMINATION Asbestos, Mold, and Industrial Hygiene Professional Services Industrial Hygiene and Safety Technology, Inc. Page 8 of 17 COVENANT BY CONTRACTOR, ITS PERSONAL REPRESENTATIVES, ASSIGNS, CONTRACTORS, SUBCONTRACTORS, OR SUCCESSORS IN INTEREST, CONTRACTOR AGREES TO ASSUME SUCH LIABILITY AND TO INDEMNIFY AND DEFEND CITY AND HOLD CITY HARMLESS FROM SUCH CLAIM. 16. Notices. Notices required pursuant to the provisions of this Agreement will be conclusively determined to have been delivered when (1) hand -delivered to the other party, its agents, employees, servants or representatives, or (2) received by the other party by United States Mail, registered, return receipt requested, addressed as follows: To CITY: City of Fort Worth Attn: Julianne Ragland, Environmental Manager 200 Texas Street Fort Worth, TX 76102-6314 With copy to Fort Worth City Attorney's Office at same address To CONTRACTOR: Industrial Hygiene and Safety Technology, Inc Attn: Dana Bramlett 2235 Keller Way Carrollton, Texas 75006 17. Solicitation of Emnlovees. Neither City nor Contractor will, during the term of this Agreement and additionally for a period of one year after its termination, solicit for employment or employ, whether as employee or independent contractor, any person who is or has been employed by the other during the term of this Agreement, without the prior written consent of the person's employer. Notwithstanding the foregoing, this provision will not apply to an employee of either party who responds to a general solicitation of advertisement of employment by either party. 18. Governmental Powers. It is understood and agreed that by execution of this Agreement, City does not waive or surrender any of its governmental powers or immunities. 19. No Waiver. The failure of City or Contractor to insist upon the performance of any term or provision of this Agreement or to exercise any right granted herein does not constitute a waiver of City's or Contractor's respective right to insist upon appropriate performance or to assert any such right on any future occasion. 20. Governing Law / Venue. This Agreement will be construed in accordance with the laws of the State of Texas. If any action, whether real or asserted, at law or in equity, is brought pursuant to this Agreement, venue for such action will lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. 21. Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired. 22. Force Maieure. City and Contractor will exercise their best efforts to meet their respective duties and obligations as set forth in this Agreement, but will 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, compliance with any government law, ordinance, or regulation; acts of God; acts of the public Asbestos, Mold, and Industrial Hygiene Professional Services Industrial Hygiene and Safety Technology, Inc. Page 9 of 17 enemy; fires; strikes; lockouts; natural disasters; wars; riots; epidemics or pandemics; government action or inaction; orders of government; material or labor restrictions by any governmental authority; transportation problems; restraints or prohibitions by any court, board, department, commission, or agency of the United States or of any States; civil disturbances; other national or regional emergencies; or any other similar cause not enumerated herein but which is beyond the reasonable control of the Party whose performance is affected (collectively, "Force Majeure Event"). The performance of any such obligation is suspended during the period of, and only to the extent of, such prevention or hindrance, provided the affected Party provides notice of the Force Majeure Event, and an explanation as to how it prevents or hinders the Party's performance, as soon as reasonably possible after the occurrence of the Force Majeure Event, with the reasonableness of such notice to be determined by the City in its sole discretion. The notice required by this section must be addressed and delivered in accordance with Section 13 of this Agreement. 23. Headings not Controlling. Headings and titles used in this Agreement are for reference purposes only, will not be deemed a part of this Agreement, and are not intended to define or limit the scope of any provision of this Agreement. 24. Review of Counsel. The parties acknowledge that each party and its counsel have reviewed and revised this Agreement and that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party will not be employed in the interpretation of this Agreement or Exhibits A and B. 25. Amendments / Modifications / Extensions. No amendment, modification, or extension of this Agreement will be binding upon a party hereto unless set forth in a written instrument, which is executed by an authorized representative of each party. 26. Counterparts. This Agreement may be executed in one or more counterparts and each counterpart will, for all purposes, be deemed an original, but all such counterparts will together constitute one and the same instrument. 27. Warranty of Services. Contractor warrants that its services will be of a high quality and conform to generally prevailing industry standards. City must give written notice of any breach of this warranty within thirty (30) days from the date that the services are completed. In such event, at Contractor's option, Contractor will either (a) use commercially reasonable efforts to re -perform the services in a manner that conforms with the warranty, or (b) refund the fees paid by City to Contractor for the nonconforming services. 28. Immigration Nationalitv Act. Contractor must verify the identity and employment eligibility of its employees who perform work under this Agreement, including completing the Employment Eligibility Verification Form (I-9). Upon request by City, Contractor will provide City with copies of all 1-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Contractor must adhere to all Federal and State laws as well as establish appropriate procedures and controls so that no services will be performed by any Contractor employee who is not legally eligible to perform such services. CONTRACTOR WILL INDEMNIFY CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY CONTRACTOR, CONTRACTOR'S EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, OR AGENTS. City, upon written notice to Contractor, will have the right to immediately terminate this Agreement for violations of this provision by Contractor. Asbestos, Mold, and Industrial Hygiene Professional Services Industrial Hygiene and Safety Technology, Inc. Page 10 of 17 29. Ownership of Work Product. City will be the sole and exclusive owner of all reports, work papers, procedures, guides, and documentation that are created, published, displayed, or produced in conjunction with the services provided under this Agreement (collectively, "Work Product"). Further, City will be the sole and exclusive owner of all copyright, patent, trademark, trade secret and other proprietary rights in and to the Work Product. Ownership of the Work Product will inure to the benefit of City from the date of conception, creation or fixation of the Work Product in a tangible medium of expression (whichever occurs first). Each copyrightable aspect of the Work Product will be considered a "work -made - for -hire" within the meaning of the Copyright Act of 1976, as amended. If and to the extent such Work Product, or any part thereof, is not considered a "work -made -for -hire" within the meaning of the Copyright Act of 1976, as amended, Contractor hereby expressly assigns to City all exclusive right, title and interest in and to the Work Product, and all copies thereof, and in and to the copyright, patent, trademark, trade secret, and all other proprietary rights therein, that City may have or obtain, without further consideration, free from any claim, lien for balance due, or rights of retention thereto on the part of City. 30. Signature Authoritv. The person signing this Agreement hereby warrants that they have the legal authority to execute this Agreement on behalf of the respective party, and that such binding authority has been granted by proper order, resolution, ordinance or other authorization of the entity. This Agreement and any amendment hereto, may be executed by any authorized representative of Contractor. Each party is fully entitled to rely on these warranties and representations in entering into this Agreement or any amendment hereto. 31. Change in Comvanv Name or Ownership. Contractor must notify City's Purchasing Manager, in writing, of a company name, ownership, or address change for the purpose of maintaining updated City records. The president of Contractor or authorized official must sign the letter. A letter indicating changes in a company name or ownership must be accompanied with supporting legal documentation such as an updated W-9, documents filed with the state indicating such change, copy of the board of director's resolution approving the action, or an executed merger or acquisition agreement. Failure to provide the specified documentation so may adversely impact future invoice payments. 32. No Bovcott of Israel. If Contractor has fewer than 10 employees or this Agreement is for less than $100,000, this section does not apply. Contractor acknowledges that in accordance with Chapter 2271 of the Texas Government Code, the City is prohibited from entering into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. The terms "boycott Israel" and "company" has the meanings ascribed to those terms in Section 2271 of the Texas Government Code. By signing this Agreement, Contractor certifies that Contractor's signature provides written verification to the City that Contractor: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the Agreement. 33. Prohibition on Bovcotting Energv Companies. Contractor 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 that is to 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 Asbestos, Mold, and Industrial Hygiene Professional Services Industrial Hygiene and Safety Technology, Inc. Page 11 of 17 Agreement, Contractor certifies that Contractor's signature provides written verification to the City that Contractor: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of this Agreement. 34. Prohibition on Discrimination Against Firearm and Ammunition Industries. Contractor 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 that is to 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, Contractor certifies that Contractor's signature provides written verification to the City that Contractor: (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. 35. Electronic Signatures. This Agreement may be executed by electronic signature, which will be considered as an original signature for all purposes and have the same force and effect as an original signature. For these purposes, "electronic signature" means electronically scanned and transmitted versions (e.g. via pdf file or facsimile transmission) of an original signature, or signatures electronically inserted via software such as Adobe Sign. 36. Entirety of Agreement. This Agreement contains the entire understanding and agreement between City and Contractor, their assigns and successors in interest, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. 37. 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. If at any time during the terms of this Agreement, the work of the Contractor fails to meet the specifications of this Agreement 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 Agreement 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 Agreement. 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. (signature page follows) Asbestos, Mold, and Industrial Hygiene Professional Services Industrial Hygiene and Safety Technology, Inc. Page 12 of 17 IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiples. CITY OF FORT WORTH: By: Valerie Washington (Sep 20,202316:24 CDT) Name: Valerie Washington Title: Assistant City Manager Date: September 20 , 2023 APPROVAL RECOMMENDED: By: Juli Ragland (Sep 20, 202316:19 CDT) Name: Julianne Ragland Title: Environmental Program Manager 4.d4000n�� ATTEST: A�� *oRTo �oo Pvo osd Pp * *� � U Ada p ,U.Ic �Lt �'A?o4p By: BX000 // �nuaaa Name: Jannette S. Goodall Title: City Secretary CONTRACTOR: CONTRACT COMPLIANCE MANAGER: 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. By: 4,�ra# Name: Roger Grantham Title: Environmental Supervisor APPROVED AS TO FORM AND LEGALITY: By: Name: Matthew A. Murray Title: Assistant City Attorney CONTRACT AUTHORIZATION: M&C: Not required Form 1295: Not required INDUSTRIAL HYGIENE AND SAFETY TECHNOLOGY, INC. Name: Dana Bramlett Title: Chief Executive Officer Date: September 20 , 2023 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Asbestos, Mold, and Industrial Hygiene Professional Services Industrial Hygiene and Safety Technology, Inc. Page 13 of 17 EXHIBIT A SCOPE OF SERVICES Contractor will furnish all labor, materials and equipment necessary perform asbestos, mold, and industrial hygiene consulting services which include, but are not limited to, the assessment of public facilities for the presence of asbestos -containing material, the development of removal specifications for asbestos containing and contaminated material, development of asbestos management plans, the management and monitoring of asbestos abatement jobs, the review of City owned facilities for the presence of indoor air contaminants and other duties as assigned. These professional services for industrial hygiene and asbestos consultant services shall be performed on an as -needed basis. There is no minimum guarantee of any work under this Contract. Specifically, Provider shall perform the following services including: Asbestos Consultant Services including but not limited to: ■ Assessment of public facilities for the presence of asbestos -containing material ■ Development of removal specifications for asbestos -containing and contaminated material ■ Development of asbestos management plans ■ Management and monitoring of asbestos abatement jobs ■ Air Monitoring for asbestos abatement ■ OSHA Air Monitoring for asbestos abatement contractor ■ Training ■ Asbestos Sample Analysis Industrial Hygiene Consultant Services including but not limited to: ■ Assessment of city facilities for the presence of indoor environmental issues ■ OSHA type assessments for potential worker exposure issues ■ Noise level assessments of city facilities ■ Training Mold Consulting Services including but not limited to: ■ Assessment of public facilities for the presence of mold ■ Development of removal specifications for mold and mold contaminated material ■ Development of mold management plans ■ Management and monitoring of mold abatement jobs ■ Training Other related duties as ordered by the City. Asbestos, Mold, and Industrial Hygiene Consulting Services Agreement Industrial Hygiene and Safety Technology, Inc. Page 14 of 17 EXHIBIT B FEESCHEDULE Compensation to be paid shall be in accordance with the tables below. The total fee paid by the City shall not exceed a total Twenty Thousand Dollars and 00/100 ($20,000.00). There is no guarantee of any minimum amount of work to be authorized by the city under this contract. Personnel Charges Industrial Hygiene and Safety Technology, Inc. will perform services pursuant to this agreement on a time and materials basis. The hourly fee for personnel is shown in the table below. The indicated hourly rates are fully inclusive of all labor costs allowable under this contract and include direct and indirect employee costs including but not limited to insurance, vacation, holidays, worker compensation, taxes, other employee costs, and profit and overhead. Other Direct Costs Labor Gates Job Des€ription Rate * Certified Industrial Hygienist (CIH) 5120.00 / H R • Licensed Asbestos Consultant $120.00 / HR * Senior Industrial Hygienist $115.00/ HR • Licensed Mold Assessment Consultant $100.00/HR • Industrial Hygienist $105.00/HR • Licensed Asbestos inspector' $65.00/ HR • Licensed Air ManitoringTech nicfanand Project Manager' $65.00/HR * Auto Cad Technician $55.00/HR • Administrative Assistant 45.00 / HR Notes: All Rates are portal to portal. 1 Hourly Rate includes cost for all PPE, sampling media, sampling equipment and other standard job materials and supplies. Hourly rates do not include cost of off -site laboratory analysis of samples. Asbestos, Mold, and Industrial Hygiene Professional Services Industrial Hygiene and Safety Technology, Inc. Page 15 of 17 The City will be invoiced for other direct costs (ODCs) accrued in connection with authorized work assignments at actual incurred cost plus ten (10) percent. These costs shall include, but not be limited to transportation and living expenses, communication expense (telephone, postage, express delivery services, etc.), and printing and reproduction expenses. Invoices and receipts for ODCs shall be retained and copies provided upon the request of the City. Laboratory Analysis Fees and Other Miscellaneous and Direct Costs are listed in the table below. Laboratory Analysis Fees Air Samples Mold Analysis; Standard Spore Trap[li Mold Analysis; Expanded Spore Trapai] Asbestos; PCM NIOSK 7400:1) Asbestos; TEMI1� Other Air Samples ([li / IAQ) Asbestos Bulk Samples Asbestos Bulk Samples; PLMII1 Asbestos Bulk Samples; TEM{1) 3-6 hr 24 hr 3 day $71.50 $27.50 $ 25.30 $82.50 $38.50 $35.20 $38.50 $16.50 $13.20 $143.00 $93.50 N/A Costs vary with analyte, lab, turnaround tune; Cost + 10 3-6 hr 24 hr 3 day $22.00 $11.00 $8.80 I11 Sample analysis cost includes markup of 10 N/A $77.00 $49.50 Other Miscellaneous and Direct Casts Description Equipment rented from a third party. Shipping / Delivery Fees Training Materials Report Package Reproduction Costs Vehicle Mileage Charge Travel Expenses outside DFW Metropiex Per Diem Asbestos, Mold, and Industrial Hygiene Professional Services Industrial Hygiene and Safety Technology, Inc. Rate Cast + 10% Cost +10% Cost + 10°% Cost + 10°% 0.55 / mile Cost +10% $35.00 / day Page 16 of 17 Travel Costs Travel costs will not be performed or compensated with project -specific prior written authorization of the City. Subcontractors Subcontractors will be invoiced at cost plus ten (10) percent. These costs include laboratory analyses and other specialty service companies. Subcontractor invoices shall be retained and copies provided upon the request of the City. Invoicing Invoices are issued monthly and payable in accordance with the terms of this contract. Industrial Hygiene and Safety Technology, Inc. invoices list total hours, billing rate, total personnel charges, travel and living expenses, and other applicable costs as specified in this contract. Remainder of page is left blank intentionally. Asbestos, Mold, and Industrial Hygiene Professional Services Industrial Hygiene and Safety Technology, Inc. Page 17 of 17