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HomeMy WebLinkAbout025130 - General - Contract - Linda LarkinsCITY SECRETARY 'T')NT'r< 1CT NO. CITY OF FORT WORTH, TEXAS STANDARD AGREEMENT FOR CONSULTING SERVICES This AGREEMENT is between the City of Fort Worth (the "CITY"), and Linda Larkins, individually and doing business as Quality Counts (the "CONSULTANT"), for a PROJECT generally described as: Consulting Services for the collection of traffic counts for the Southeast Fort Worth Solid Waste Transfer Station Traffic Study. Article I Scope of Services A. The Scope of Services is set forth in Attachment A. Article II Compensation A. The CONSULTANT's compensation is set forth in Attachment B. Article III Terms of Payment Payments to the CONSULTANT will be made as follows: A. Invoice and Payment (1) The CONSULTANT shall provide the CITY sufficient documentation to reasonably substantiate the invoices. (2) Monthly invoices will be issued by the CONSULTANT for all work performed under this AGREEMENT. Invoices are due and payable within 30 days of receipt. (3) Upon completion of services enumerated in Article I, the final payment of any balance will be due within 30 days of receipt of the final invoice. (4) In the event of a disputed or contested billing, only that portion so contested will be withheld from payment, and the undisputed portion will be paid. The CITY will exercise reasonableness in contesting any bill or portion thereof. No interest will accrue on any contested portion of the billing until mutually resolved. (5) If the CITY fails to make payment in full to the CONSULTANT for billings contested in good faith within 60 days of the amount due, the CONSULTANT may, after giving seven (7) days' written notice to CITY, suspend services under this AGREEMENT until paid in full, including interest. In the event of suspension of services, the CONSULTANT shall have no liability to CITY for delays or damages caused the CITY because of such suspension of services. UAL RECORD CORY CRERR Y -1-F10 �GG:flo S. Article IV Obligations of the CONSULTANT Amendments to Article IV, if any, are included in Attachment C. A. General The CONSULTANT will serve as the CITY's professional representative under this Agreement, providing professional engineering consultation and advice and furnishing customary services incidental thereto. B. Standard of Care The standard of care applicable to the CONSULTANT's services will be the degree of skill and diligence normally employed in the State of Texas by professional engineers or consultants performing the same or similar services at the time such services are performed. C. Right to Audit (1) CONSULTANT agrees that the CITY shall, until the expiration of three (3) years after final payment under this contract, have access to and the right to examine and photocopy any directly pertinent books, documents, papers and records of the CONSULTANT involving transactions relating to this contract. CONSULTANT agrees that the CITY shall have access during normal working hours to all necessary CONSULTANT facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. The CITY shall give CONSULTANT reasonable advance notice of intended audits. (2) CONSULTANT further agrees to include in all its subconsultant agreements hereunder a provision to the effect that the subconsultant 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 and photocopy any directly pertinent books, documents, papers and records of such subconsultant, involving transactions to the subcontract, and further, that the CITY shall have access during normal working hours to all necessary subconsultant facilities, and shall be provided adequate and appropriate work space, in order to conduct audits in compliance with the provisions of this article together with subsection (3) hereof. CITY shall give subconsultant reasonable advance notice of intended audits. (3) CONSULTANT and subconsultant agree to photocopy such documents as may be requested by the CITY. The CITY agrees to reimburse CONSULTANT for the cost of copies at the rate published in the Texas Administrative Code in effect as of the time copying is performed. -2- D. CONSULTANT'S Insurance (1) Insurance coverage and limits: CONSULTANT shall provide to the CITY certificate(s) of insurance documenting policies of the following coverage at minimum limits which are to be in effect prior to commencement of work on the PROJECT: Commercial General Liability $1,000,000 each occurrence $1,000,000 aggregate Automobile Liability $1,000,000 each accident (or reasonably equivalent limits of coverage if written on a split limits basis). Coverage shall be on any vehicle used in the course of the PROJECT. Worker's Compensation Coverage A: statutory limits Coverage B: $100,000 each accident $500,000 disease — policy limit $100,000 disease — each employee Professional Liability $1,000,000 each claim/annual aggregate (2) Certificates of insurance evidencing that the CONSULTANT has obtained all required insurance shall be delivered to the CITY prior to CONSULTANT proceeding with the PROJECT. (a) Applicable policies shall be enforced 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. (b) Certificate(s) of insurance shall document that insurance coverages specified according to Section D.(1) and D.(2) of this AGREEMENT are provided under applicable policies documented thereon. (c) Any failure on part of the CITY to request required insurance documentation shall not constitute a waiver of the insurance requirements. (d) A minimum of thirty (30) days notice of cancellation, non -renewal 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 CONSULTANT's Insurance policies. Notice shall be sent to the respective Department Director (by name), City of Fort Worth, 1000 Throckmorton, Fort Worth, Texas 76102. -3- (e) 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. (f) Deductible limits, or self insured retentions, affecting insurance required herein may be acceptable to the CITY at 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. (g) Applicable policies shall each be endorsed with a waiver of subrogation in favor of the CITY as respects the PROJECT. (h) The CITY shall be entitled, upon its request and without incurring expense, to review the CONSULTANT's insurance policies including endorsements thereto and, at the CITY's discretion, the CONSULTANT may be required to provide proof of insurance premium payments. (i) The Commercial General Liability insurance policy shall have no exclusions by endorsements unless such are approved by the CITY. (j) The Professional Liability insurance policy, if written on a claims made basis shall be maintained by the CONSULTANT for a minimum two (2) year period subsequent to the term of the respective PROJECT contract with the CITY unless such coverage is provided the CONSULTANT on an occurrence basis. (k) The CITY shall not be responsible for the direct payment of any insurance premiums required by this agreement. It is understood that insurance cost is an allowable component of CONSULTANT's overhead. (I) All insurance required in Section D., except for the Professional Liability insurance policy, shall be written on an occurrence basis in order to be approved by the CITY. (m) Subconsultants to the CONSULTANT shall be required by the CONSULTANT to maintain the same or reasonably equivalent insurance coverage as required for the CONSULTANT. When insurance coverage is maintained by subconsultants, CONSULTANT shall provide CITY with documentation thereof on a certificate of insurance. Notwithstanding anything to the contrary contained herein, in the event a subconsultant's insurance coverage is canceled or terminated, such cancellation or termination shall not constitute a breach by CONSULTANT of the Agreement. -4- E. Independent Consultant The CONSULTANT agrees to perform all services as an independent consultant and not as a subcontractor, agent, or employee of the CITY. F. Disclosure The CONSULTANT acknowledges to the CITY that it has made full disclosure in writing of any existing conflicts of interest or potential conflicts of interest, including personal financial interest, direct or indirect, in property abutting the proposed PROJECT and business relationships with abutting property owners. The CONSULTANT further acknowledges that it will make disclosure in writing of any conflicts of interest which develop subsequent to the signing of this contract and prior to final payment under the contract. G. Asbestos or Hazardous Substances (1) If asbestos or hazardous substances in any form are encountered or suspected, the CONSULTANT will stop its own work in the affected portions of the PROJECT to permit testing and evaluation. (2) If asbestos or other hazardous substances are suspected, the CONSULTANT will, if requested, assist the CITY in obtaining the services of a qualified subcontractor to manage the remediation activities of the PROJECT. H. Permitting Authorities — Design Changes If permitting authorities require design changes so as to comply with published design criteria and/or current engineering practice standards which the CONSULTANT should have been aware of at the time this Agreement was executed, the CONSULTANT shall revise plans and specifications, as required, at its own cost and expense. However, if design changes are required due to the changes in the permitting authorities' published design criteria and/or practice standards criteria which are published after the date of this Agreement which the CONSULTANT could not have been reasonable aware of, the CONSULTANT shall notify the CITY of such changes and an adjustment in compensation will be made through an amendment to this AGREEMENT. Article V Obligations of the City Amendments to Article V, if any, are included in Attachment C. A. City -Furnished Data The CITY will make available to the CONSULTANT all technical data in the CITY's possession relating to the CONSULTANT's services on the PROJECT. -5- The CONSULTANT may rely upon the accuracy, timeliness, and completeness of the information provided by the CITY. B. Access to Facilities and Property The CITY will make its facilities accessible to the CONSULTANT as required for the CONSULTANT's performance of its services and will provide labor and safety equipment as required by the CONSULTANT for such access. The CITY will perform, at no cost to the CONSULTANT, such tests of equipment, machinery, pipelines, and other components of the CITY's facilities as may be required in connection with the CONSULTANT's services. The CITY will be responsible for all acts of the CITY's personnel. C. Advertisements, Permits, and Access Unless otherwise agreed to in the Scope of Services, the CITY will obtain, arrange, and pay for all advertisements for bids; permits and licenses required by local, state, or federal authorities; and land, easements, rights -of -way, and access necessary for the CONSULTANT's services or PROJECT construction. D. Timely Review The CITY will examine the CONSULTANT's studies, reports, sketches, drawings, specifications, proposals, and other documents; obtain advice of an attorney, insurance counselor, accountant, auditor, bond and financial advisors, and other consultants as the CITY deems appropriate; and render in writing decisions required by the CITY in a timely manner in accordance with the project schedule in Attachment D. E. Prompt Notice The CITY will give, prompt notice to the CONSULTANT whenever CITY observes or becomes aware of any development that affects the scope or timing of the CONSULTANT's services or of any defect in the work of the CONSULTANT or construction contractors. F. Asbestos or Hazardous Substances and Indemnification (1) To the maximum extent permitted by law, the CITY will indemnify and release CONSULTANT and its officers, employees, and subcontractors from all claims, damages, losses, and costs, including, but not limited to, attorney's fees and litigation expenses arising out of or relating to the presence, discharge, release, or escape of hazardous substances, contaminants, or asbestos on or from the PROJECT. Nothing contained herein shall be construed to require the CITY to levy, assess or collect any tax to fund this indemnification. (2) The indemnification and release required above shall not apply in the event the discharge, release or escape of hazardous substances, contaminants, or asbestos is a result of CONSULTANT's negligence or if -6- such hazardous substance, contaminant or asbestos is brought onto the PROJECT by CONSULTANT. G. Contractor Claims and Third -Party Beneficiaries (1) The CITY agrees to include the following clause in all contracts with construction contractors and equipment or materials suppliers: "Contractors, subcontractors and equipment and materials suppliers on the PROJECT, or their sureties, shall maintain no direct action against the CONSULTANT, its officers, employees, and subcontractors, for any claim arising out of, in connection with, or resulting from the consulting services performed. Only the CITY will be the beneficiary of any undertaking by the CONSULTANT." (2) This AGREEMENT gives no right or benefits to anyone other than the CITY and the CONSULTANT and there are no third -party beneficiaries. (3) The CITY will include in each agreement it enters into with any other entity or person regarding the PROJECT a provision that such entity or person shall have no third -party beneficiary rights under this AGREEMENT. (4) Nothing contained in this section V.H. shall be construed as a waiver of any right the CITY has to bring a claim against CONSULTANT. H. CITY's Insurance (1) The CITY may maintain property insurance on certain pre-existing structures associated with the PROJECT. (2) The CITY will ensure that Builders Risk/Installation insurance is maintained at the replacemept cost value of the PROJECT. The CITY may provide CONSULTANT a copy of the policy or documentation of such on a certificate of insurance. (3) The CITY will specify that the Builders Risk/Installation insurance shall be comprehensive in coverage appropriate to the PROJECT risks. Litigation Assistance The Scope of Services does not include costs of the CONSULTANT for required or requested assistance to support, prepare, document, bring, defend, or assist in litigation undertaken or defended by the CITY. In the event CITY requests such services of the CONSULTANT, this AGREEMENT shall be amended or a separate agreement will be negotiated between the parties. J. Changes The CITY may make or approve changes within the general Scope of Services in this AGREEMENT. If such changes affect the CONSULTANT's cost of or time ere required for performance of the services, an equitable adjustment will be made through an amendment to this AGREEMENT with appropriate CITY approval. Article VI General Legal Provisions Amendments to Article VI, if any, are included in Attachment C. A. Authorization to Proceed CONSULTANT shall be authorized to proceed with this AGREEMENT upon receipt of a written Notice to Proceed from the CITY. B. Reuse of Project Documents All designs, drawings, specifications, documents, and other work products of the CONSULTANT, whether in hard copy or in electronic form, are instruments of service for this PROJECT, whether the PROJECT is completed or not. Reuse, change, or alteration by the CITY or by others acting through or on behalf of the CITY of any such instruments of service without the written permission of the CONSULTANT will be at the CITY's sole risk. The final designs, drawings, specifications and documents shall be owned by the CITY. C. Force Majeure The CONSULTANT is not responsible for damages or delay in performance caused by acts of God, strikes, lockouts, accidents, or other events beyond the control of the CONSULTANT. D. Termination (1) This AGREEMENT may be terminated only by the City for convenience on 30 days' written notice. This AGREEMENT may be terminated by either the CITY or the CONSULTANT for cause if either party fails substantially to perform through no fault of the other and does not commence correction of such nonperformance within five (5) days of written notice and diligently complete the correction thereafter. (2) If this AGREEMENT is terminated for the convenience of the CITY, the CONSULTANT will be paid for termination expenses as follows: (a) Cost of reproduction of partial or complete studies, plans, specifications or other forms of CONSULTANT's work product; (b) Out-of-pocket expenses for purchasing storage containers, microfilm, electronic data files, and other data storage supplies or services; -8- (c) The time requirements for the CONSULTANT's personnel to document the work underway at the time the CITY's termination for convenience so that the work effort is suitable for long time storage. (3) Prior to proceeding with termination services, the CONSULTANT will submit to the CITY an itemized statement of all termination expenses. The CITY's approval will be obtained in writing prior to proceeding with termination services. E. F. Suspension, Delay, or Interruption to Work The CITY may suspend, delay, or interrupt the services of the CONSULTANT for the convenience of the CITY. In the event of such suspension, delay, or interruption, an equitable adjustment in the PROJECT's schedule, commitment and cost of the CONSULTANT's personnel and subcontractors, and CONSULTANT's compensation will be made. Indemnification (1) The CONSULTANT agrees to indemnify and defend the CITY from any loss, cost, or expense claimed by third parties for property damage and bodily injury, including death, caused solely by the negligence or willful misconduct of the CONSULTANT, its employees, officers, and subcontractors in connection with the PROJECT. (2) If the negligence or willful misconduct of both the CONSULTANT and the CITY (or a person identified above for whom each is liable) is a cause of such damage or injury, the loss, cost, or expense shall be shared between the CONSULTANT and the CITY in proportion to their relative degrees of negligence or willful misconduct as determined pursuant to T.C.P. & R. Code, section 33.011(4) (Vernon Supplement 1996). G. Assignment Neither party will assign all or any part of this AGREEMENT without the prior written consent of the other party. H. Interpretation Limitations on liability and indemnities in this AGREEMENT are business understandings between the parties and shall apply to all the different theories of recovery, including breach of contract or warranty, tort including negligence, strict or statutory liability, or any other cause of action, except for willful misconduct or gross negligence for limitations of liability and sole negligence for indemnification. Parties means the CITY and the CONSULTANT, and their officers, employees, agents, and subcontractors. I. Jurisdiction The law of the State of Texas shall govern the validity of this AGREEMENT, its interpretation and performance, and any other claims related to it. The venue for any litigation related to this AGREEMENT shall be Tarrant County, Texas. J. Alternate Dispute Resolution (1) All claims, disputes, and other matters in question between the CITY and CONSULTANT arising out of, or in connection with this AGREEMENT or the PROJECT, or any breach of any obligation or duty of CITY or CONSULTANT hereunder, will be submitted to mediation. If mediation is unsuccessful, the claim, dispute or other matter in questions shall be submitted to arbitration if both parties acting reasonably agree that the amount of the dispute is likely to be less than $50,000, exclusive of attorney's fees, costs and expenses. Arbitration shall be in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association or other applicable rules of the Association then in effect. Any award rendered by the arbitrators less than $50,000, exclusive of attorney's fees, costs and expenses, will be final, judgement may be entered thereon in any court having jurisdiction, and will not be subject to appeal or modification except to the extent permitted by Sections 10 and 11 of the Federal Arbitration Act (9 U.S.C. Sections 10 and 11) (2) Any award greater than $50,000, exclusive of attorney's fees, costs and expenses, may be litigated by either party on a de novo basis. The award shall become final ninety (90) days from the date same is issued. If litigation is filed by either party within said ninety (90) day period, the award shall become null and void and shall not be used by either party for any purpose in the litigation. K. Severability and Survival If any of the provisions contained in this AGREEMENT are held for any reason to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability will not affect any other provision, and this AGREEMENT shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. Articles V.F., VI.B, VI.D, VI.H, and VI.J shall survive termination of this AGREEMENT for any cause. L. Observe and Comply CONSULTANT shall at all time observe and comply with all federal and State 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. CONSULTANT agrees to defend, indemnify and hold harmless CITY and all of its officers, agents and employees from and against all claims or liability arising out of the violation of any such order, law, ordinance, or regulation, whether it be by itself or its employees. Article VII Attachments, Schedules, and Signatures This AGREEMENT, including its attachments and schedules, constitutes the entire AGREEMENT, supersedes all prior written or oral understandings, and may only be changed by a written amendment executed by both parties. The following attachments and schedules are hereby made a part of this AGREEMENT. Attachment A — Scope of Services Attachment B — Compensation ATTEST: G(oria Pearson City Secretary Mike Groomer Assistant City Manager APPROVED AS TO FORM APPROVAL RECOMMENDED AND LEGALITY Gary Steinberger g A. Malanga, P.E., Director Assistant City Attorney T sportation and Public Works ATTEST: 'rvc. Peiu I �ED Contract Authorization Date QUALITY COUNTS Lin Larkins Owner -11- Attachment A SCOPE OF SERVICES Provide 2 -hour A.M. and P.M. peak turning movement counts for trucks and vehicles at the following 15 intersections: Berry St./Miller Ave. Berry St.Nillage Creek Rd. Berry St./East Loop 820 Service Rd. (SB) Miller Ave./Wilbarger St. Village Creek Rd./Wilbarger St. Carey Rd./Wilbarger St Wilbarger St./East Loop 820 Service Rd. (SB) Martin St./Miller Ave. Martin St.Nillage Creek Rd. Martin St./Carey Rd. Martin St./East Loop 820 Service Rd. (SB) Village Creek Rd./U.S. Hwy. 287 Service Rd. (EB) Village Creek Rd./U.S. Hwy. 287 Service Rd. (WB) Carey Rd./U.S. Hwy. 287 Service Rd. (EB) Carey Rd./U.S. Hwy. 287 Service Rd. (WB) CONSULTANT shall also perform technical services in support of CITY's traffic engineering services. CONSULTANT's work will be provided to CITY on a work authorization basis. Prior to beginning work and as needed during the progress of each work authorization, a clear understanding of CONSULTANT's services to be provided and period of performance will be established by CONSULTANT in discussion with CITY. The Scope of Services will also include the following: 1. Collecting 24 -hour counts and peak hour turning movement counts at ten (10) intersections; and preparing a summary of collected counts by 15 -minute increments for signal studies. The notice to proceed for each work authorization issued by CITY will define locations and services to be provided by CONSULTANT. Work schedule will be determined for each individual Work Authorization. -1- Attachment B COMPENSATION The CONSULTANT shall be compensated on a work authorization basis. Compensation for Traffic Counts within City of Fort Worth will be at fixed rates as follows: Turning Movement Counts: $250 for two, 2 -hour peaks 24 -Hour Machine Counts: $50 per tube The total fee for this contract is $8,250.00. Payment of the fee shall be considered full compensation for the services described in Attachment A for all labor, materials, supplies, and equipment necessary to complete the services. The CONSULTANT shall submit monthly invoices to the City for all work performed under this agreement set forth in Article III, Terms of Payment. The monthly invoices will contain a description of the tasks performed for that particular month, percent complete for each task, amount budgeted for each task, portion of budget amount expended, previous billing totals, and totals for invoice. -1-