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HomeMy WebLinkAboutContract 41383 CITY SECRETARY r_ CONTRACT NO. 3 CONTRACT I l l t rr Between Li CITY OF FORT WORTH and ACCUTEST LABORATORIES C GULF COAST, INC., CFor LABORATORY ANALYTICAL SERVICES Transportation and Public Works Department C Environmental Services Division tNcorr� December 2010 Co. OFFICIAL RECCRO IMMMUy -- CITY SECRETARY i --rT--..CIfYrAMMI!'i FT. WORTH, TX TAw•FU CORY STATE OF TEXAS § § KNOWN ALL BY THESE PRESENTS: COUNTY OF TARRANT § 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 Accutest Laboratories Gulf Coast, Inc., a Texas corporation ("Contractor"), acting through Vincent Pugliese, its duly authorized 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 Cam[ 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 this Contract; Invitation to Bid; Request for Proposals; Request for Qualifications; the Contractor's response to the Request for Proposal/Qualifications or Invitation to Bid; Bid Documents; attachments, pre- bid amendments, and appendices to the Request for Proposal/Qualifications or Invitation to Bid; Contract Attachments, Amendments, and Modifications, and all ancillary documents submitted with the Contractor's response to the Request for Proposal/Qualifications or to the Invitation to Bid or to the Contract. Contractor means Accutest Laboratories Gulf Coast, 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. —, Contract—Analytical Lab Services . :Pagei,1 b'23 Accutest Laboratories Gulf Coast, 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 services 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 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 contractors, 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 one hundred thousand dollars ($100,000) 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. Contract—Analytical Lab Services Page 2 of 23 Accutest Laboratories Gulf Coast, 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. 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. ARTICLE 4. TERM Unless terminated pursuant to the terms herein, this Agreement shall be for a term of one year, beginning upon the date of its execution. 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 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. Contract—Analytical Lab Services -page 3 bf'23 Accutest Laboratories Gulf Coast, Inc. ARTICLE 6. PROFESSIONAL COMPETENCE AND INDEMNIFICATION Work performed by Contracto r shall comply in all aspects with all a pp licable 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. 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. ' 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. Contract—Analytical Lab Services Page 4 of 23 Accutest Laboratories Gulf Coast, Inc. ARTICLE 8. INDEMNIFICATION Section 1. Definitions. In this paragraph, the following words and phrases shall be defined as follows: Environmental Damages shall mean all costs, expenses, 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 negligence, an intentional tort, or the violation of any environmental requirements as defined herein 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, investigation, or remediation for any violation of environmental requirements as defined herein 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 violations of 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: a. 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 po44pal Contract—Analytical Lab Services 1 Bg 5vJ 23 Accutest Laboratories Gulf Coast, Inc. 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: b. 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 c. All requirements pertaining to the protection of the health and safety of ' employees or the public; and d. The standard of care exercised by a reasonably prudent company or , individual engaged in the provision of services contemplated by this contract. Section 2. THE CONTRACTOR SHALL INDEMNIFY, HOLD HARMLESS, AND DEFEND THE CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES, AGAINST ANY AND ALL LIABILITY FOR ANY DAMAGE CAUSED BY OR RESULTING FROM ANY ACT OF NEGLIGENCE, INTENTIONAL TORT, INTELLECTUAL PROPERTY INFRINGEMENT, OR FAILURE TO PAY A SUBCONTRACTOR OR SUPPLIER, WHICH IS COMMITTED BY THE CONTRACTOR OR CONTRACTOR'S AGENT, EMPLOYEE, SUBCONTRACTOR, OR ANY OTHER INDIVIDUAL OR ENTITY OVER WHICH THE CONTRACTOR EXERCISES CONTROL. Section 3. General Indemnification. CONTRACTOR DOES HEREBY RELEASE, INDEMNIFY, REIMBURSE, DEFEND, AND HOLD HARMLESS THE CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES, FROM AND AGAINST ANY AND ALL LIABILITY, CLAIMS, SUITS, DEMANDS, OR CAUSES OF ACTIONS WHICH MAY ARISE DUE TO ANY LOSS OR DAMAGE TO PERSONAL PROPERTY, OR PERSONAL INJURY, AND/OR DEATH, OCCURRING AS A CONSEQUENCE OF THE CONTRACTOR'S OPERATIONS UNDER THIS 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 Contract—Analytical Lab Services Page 6 of 23 Accutest Laboratories Gulf Coast, Inc. OF CONTRACTOR, ITS OFFICERS, AGENTS EMPLOYEES OR CONTRACTORS AND ANY OTHER PERSON OR ENTITY. Section 4. Environmental Indemnification. CONTRACTOR DOES HEREBY RELEASE, INDEMNIFY, DEFEND, REIMBURSE, AND HOLD HARMLESS THE CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES, AGAINST ANY AND ALL ENVIRONMENTAL DAMAGES RESULTING FROM CONTRACTOR'S OPERATIONS UNDER THIS AGREEMENT WHEN SUCH DAMAGES ARE CAUSED BY ANY 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 5. ' 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 AND BONDS Section 1. Contractor shall not commence work under this Agreement until it has obtained all insurance required under this Article and the City has approved such insurance, nor shall Contractor allow any subcontractor to commence work on its subcontract until all similar insurance of the subcontractolr has—beeh so Obtained Contract—Analytical Lab Services Pa e 1 Of 23 Accutest Laboratories Gulf Coast, Inc. and approval given by the City; provided, however, Contractor may elect to add any subcontractor as an additional insured under its liability policies. A. Insurance coverage and limits: 1. Commercial General Liability Insurance $1,000,000 each occurrence; $2,000,000 aggregate 2. Professional Liability Insurance Not applicable. 3. Automobile Liability Insurance Coverage on vehicles involved in the work performed under this contract: ' $1,000,000 per accident on a combined single limit basis or $500,000 bodily injury each person; $1,000,000 bodily injury each accident; and $250,000 property damage. 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). B. Certificates of Insurance evidencing that the Contractor has obtained all required insurance shall be delivered to the City prior to Contractor proceeding with the Contract. 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. Contract—Analytical Lab Services Page 8 of 23 Accutest Laboratories Gulf Coast, Inc. 2. Certificate(s) of Insurance shall document that insurance coverage specified herein are provided under applicable policies documented thereon. 3. Any failure on part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirements. 4. A minimum of thirty (30) days notice of cancellation or material change in coverage shall be provided to the City. A ten (10) days notice shall be acceptable in the event of non-payment of premium. Such terms shall be endorsed onto Contractor's insurance policies. Notice shall be sent to Department of Risk Management, City of Fort Worth, 1000 Throckmorton Street, Fort Worth, Texas 76102. ' a. 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. b. 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. c. Applicable policies shall each be endorsed with a waiver of subrogation in favor of the City as respects the Contract. d. 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. ' e. The Commercial General Liability insurance policy shall have no exclusions by endorsements unless the City approves such exclusions. f. 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. g. All insurance required above shall be written on an occurrence basis in order to be approved by the City. h. Subcontractors to the Contractor shall be re uire EQntraMf q d-bY�the -Oo maintain the same or reasonably equivalent iniwance 1poveraggaAs Contract—Analytical Lab Services 'P2ige"f 23 Accutest Laboratories Gulf Coast, Inc. ---------- 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. F� ARTICLE 11. TRANSFER OR ASSIGNMENT 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 (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 I section. City shall give Contractor reasonable advance notice of intended audits. b Contractor further agrees to include in all its subcontracts hereunder, a I ( ) g 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 Contract—Analytical Lab Services Page 10 of 23 Accutest Laboratories Gulf Coast, Inc. 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. MINORITY AND WOMAN BUSINESS ENTERPRISE (M/WBE) PARTICIPATION ' In accordance with City Ordinance No. 15530, there is no pre-established M/WBE goal for this contract subject to the applicable M/WBE waiver. 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. 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 purplese- of meetin,g_Itup, requirements of this section. Contract—Analytical Lab Services Pae� ff Accutest Laboratories Gulf Coast, Inc. 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. 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 Contract—Analytical Lab Services Page 12 of 23 Accutest Laboratories Gulf Coast, Inc. 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. ARTICLE 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 This contract incorporates by reference all contract documents, which shall be binding upon the parties as if included herein. In the event of a discrepancy, this contract shall control over the other contract documents. 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. ' ARTICLE 20. HEADINGS ' The headings contained herein are for the convenience in reference and are not intended to define or limit the scope of any provision of 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 Contract—Analytical Lab Services 1-34-24, Accutest Laboratories Gulf Coast, Inc. 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 I 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. 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 TPW — Environmental Services Division Attn: Michael Gange 1000 Throckmorton Street Fort Worth, Texas 76102-6311 If to the Contractor: Accutest Labs Gulf Coast, Inc. Attn: Harry Behzadi, PhD 10165 Harwin Drive, Suite 150 Houston, TX 77036 Contract—Analytical Lab Services Page 14 of 23 Accutest Laboratories Gulf Coast, Inc. 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 iThis contract, the contract documents, and any other documents incorporated by reference herein are binding upon the parties and contain all the terms and conditions agreed to by the City and Contractor, and no other contracts, oral or otherwise, regarding the subject matter of this contract or any part thereof shall have any validity or bind any of the parties hereto. In the event of any conflict ' between this contract and any other contract documents, then the terms of this contract shall govern. Remainder of page is left blank intentionally. 1 Contract—Analytical Lab Services ipw'A"f 23 Accutest Laboratories Gulf Coast, Inc. This page is left blank intentionally. Contract—Analytical Lab Services Page 16 of 23 Accutest Laboratories Gulf Coast, Inc. ATTACHMENT A. SCOPE OF WORK Contractor shall provide laboratory analytical services of air, soil, water, sludge, sediment, tissue, and various other types of materials and media and will provide all labor, materials and equipment necessary for such analysis. The types of analytical services to be performed by the Contractor, upon the request of the City, shall include at a minimum those listed in the Request for Proposals (DEM 10-09: LAB) and the Contractor's submitted proposal. Contractor shall provide each type of test and each type of test method specified in Attachment B. Work performed under this contract may be subcontracted only as specified in the contract documents. Contractor or support laboratory shall ' provide alternate or additional procedures as requested by the City if such request is reasonably available. ' All work performed by the Contractor shall be in accordance with the specifications described in the Request for Proposals and the Contractor's proposal (which are incorporated herein as enforceable conditions of this contract) including but not limited to sample handling, analysis, quality assurance/quality control, chain of custody, documentation, and reporting. 1 Contractor will provide all sample containers, preservatives, chain of custody forms and seals, and returnable shipping containers, in addition to providing pick- up and delivery services for the containers/samples at no additional charge to the City. All handling instructions and chain-of-custody protocols shall be in accordance with all federal and state regulatory requirements for laboratory methods and quality assurance. Disposal of samples shall be the responsibility of the laboratory and shall be in accordance with all federal and state regulatory requirements. Analytical results requested at a Standard Turn-Around-Time (TAT) must be returned to the city within seven (7) calendar days after receipt of sample(s). Analytical results requested at a Rush TAT must be returned to the city within three (3) calendar days after receipt of sample(s). Analytical results requested at an Emergency TAT must be returned to the city within twenty-four (24) hours after receipt of sample(s). Provider shall procure all permits and licenses, pay all charges, costs, and fees, ' and give all notices necessary and incident to the due and lawful prosecution of the work. The analysis and reporting of data will be done in a manner following the TRRP-13 Guidance document, including the Laboratory Review Checklist (LRC). R� I t Contractor agrees that it has and will maintain during the term of this Contract, current and appropriate federal, state, and local licenses and permits to perform Contract—Analytical Lab Services Page 17 of 23 Accutest Laboratories Gulf Coast, Inc. the services contained in this Contract. In addition, Contractor agrees to require any of its subcontractors used to perform this Contract to have and maintain current and appropriate federal, state and local licenses and permits to perform this Contract. Contractor shall be responsible for legal and proper disposal of all samples and wastes, shall assume all liability for all damages resulting from any accident, negligence, or intentional act or tort by the contractor, its employees, its subcontractors, agents, and assigns and shall indemnify the City in accordance with the terms of the contract. Remainder of page is left blank intentionally. 6 Contract—Analytical Lab Services Page 18 of 23 Accutest Laboratories Gulf Coast, Inc. ATTACHMENT B. FEE SCHEDULE Prices for professional services rendered under this contract will be as specified in Table 1 below and are the total price agreed for the tests and services enumerated including all labor, equipment, and materials necessary to perform the service. The total fee for services under this contract shall not exceed one hundred thousand dollars ($100,000). All TCLP/SPLP extraction charges are included in the TCLP/SPLP line items. Laboratory will provide pickup and delivery service as well as all sample ' containers, preservatives, labels, forms, and shipping containers at no additional charge to the City. ' Table 1. Agreed prices for services performed. Item Test and Method dt9estton Unit Prins Number Ftitration 7 day 3 dry 24 Hour' ' 1 BTEX EPA 8021 B 29 c 41 $ $ $51 2 BTEX EPA 8260 $29 $41 $51 3 BTEX& MTBE EPA 8021 B $33 $46 $58 4 BTEX&MTBE EPA 8260 $33 $46 $58 5 Ethylene Glycol $75 $105 $131 6 MTBE 8021 B $25 $35 $44 7 MTBE 8260 $25 $35 $44 ' 8 TPH TX 1005 $35 $49 $61 9 TPH TX 1006 $150 $210 $263 10 TPH EPA 8015 DRO/GRO $50 $70 $88 11 PAH EPA 8310 $90 $126 $158 12 PAH EPA 8270 $90 $126 $158 ' 13 TCLP/SPLP PAH $115 $161 $201 14 Oil &Grease EPA1664 $40 $56 $70 ' 15 PCBs in oil EPA 8082 $40 $56 $70 16 PCBs in soil/water EPA 8082 $40 $56 $70 17 TCLP/SPLP Benzene EPA 1311/1312/8020 $55 $77 $96 ' 18 TCLP/SPLP Benzene EPA 1311/1312/8260 $55 $77 $96 ' 19 Pesticides, Chlorinated EPA 8081 $90 $126, $158 20 TCLP/SPLP Pesticides EPA 1311/1312/8081 95 01 21 Pesticides, Or ano hos horus EPA 8141 .1A $.'175 Contract—Analytical Lab Services Page 19 of 23 Accutest Laboratories Gulf Coast, Inc. Di stio Unit Price NuItem mber Test and Method Filtration --7d—a—yT3 day 24 Hour 22 Herbicides EPA 8151 $100 $140 $175 23 Volatiles, VOCs EPA 82606 $65 $91 $114 24 TCLP/SPLP VOCs EPA 1311/1312/8260B) $90 $126 $158 25 Semi Volatiles, SVOCs EPA 8270 $145 $203 $254 26 TCLP/SPLP SVOCs EPA 1311/1312/8270 $170 $238 $298 TCLP/SPLP Full (pesticides, herbicides, VOC, SVOC, 27 & Metals) $515 $721 $901 28 Acid Extractable EPA 625/8270C $90 $126 $158 29 Base/Neutral Extractable EPA 625/8270C $90 $126 $158 X On le, mg On : TCLP/SPLP 8 RCRA Metals , 30 EPA 1 31 1/1 31 2/601 0 6/6020 $90 $126 $158 TCLP/SPLP 13 PP Metals (EPA 31 1311/1312/60106/6020) $110 1 $154 $193 ' 32 TCLP/SPLP, one metal EPA 1 31 1/1 31 2/601 06/6020 $37 $52 $65 33 Total 8 RCRA Metals EPA 601013/6020 $65 $91 $114 34 Total 13 PP Metals EPA6010/6020 $85 $119 $149 35 Aluminum EPA 6010/6020 D $6 $8 $11 36 Antimony EPA 6010/6020 D $6 $8 $11 37 Arsenic EPA 6010/6020 D $6 $8 $11 38 Barium EPA 6010/6020 D $6 $8 $11 39 Beryllium EPA 6010/6020 D $6 $8 $11 40 Boron EPA 6010/6020 D $6 $8 $11 41 Cadmium EPA 6010/6020 D $6 $8 $11 42 Calcium EPA 6010/6020 D $6 $8 $11 43 Chromium EPA 6010/6020 D $6 $8 $11 44 Chromium VI EPA 6010/6020 D $6 $8 $11 45 Cobalt EPA 6010/6020 D $6 $8 $11 ' 46 Copper EPA 6010/6020 D $6 $8 $11 47 Iron EPA 6010/6020 D $6 $8 $11 48 Lead EPA 6010/6020 D $6 $8 $11 49 Magnesium EPA 6010/6020 D $6 $8 $11 50 Manganese EPA 6010/6020 D $6 $8 $11 51 Mercury EPA 7470/7471 $20 $28 $35 52 Molybdenum EPA 6010/6020 D $6 $8 $11 53 Nickel EPA 6010/6020 D $6 $8 $11 54 Potassium EPA 6010/6020 D $6 $8 $11 55 Selenium EPA 6010/6020 D $6 $8 $11 Contract—Analytical Lab Services Page 20 of 23 Accutest Laboratories Gulf Coast, Inc. Item Digmti Unit Price Test and Method' Number Filtratl°n 7 day 3 day 24 Hour ' 56 Silver EPA 6010/6020 D $6 $8 $11 57 Sodium EPA 6010/6020 D $6 $8 $11 58 Thallium EPA 6010/6020 D $6 $8 $11 59 Tin EPA 6010/6020 D $6 $8 $11 ' 60 Titanium EPA 6010/6020 D $6 $8 $11 61 Vanadium EPA 6010/6020 D $6 $8 $11 62 Zinc EPA 6010/6020 D $6 $8 $11 Metal Digestion per required digestion (EPA 3010, 63 1050) 1 $6 $8 $11 ' 64 TOX SW 846: 9020B or 9022 $100 $140 $175 65 RCI (SW846 Various Methods $70 $98 $123 ' 66 Corrosive, Steel EPA 1110 $20 $28 $35 67 Corrosive, pH EPA 9045 $5 $7 $9 ' 68 Reactivity, Cyanide EPA 9010 $25 $35 $44 69 Reactivity, Sulfide EPA 9030 $20 $28 $35 70 pH EPA 90406 $5 $7 $9 ' 71 I nitabili Flash Point by SW 1010 $15 $21 $26 72 Paint Filter EPA 9095 $15 $21 $26 73 BTU $15 $21 $26 ' 74 Total Organic Carbon EPA 413.1 $20 $28 $35 75 Alkalinity,Total EPA 305.1 $20 $28 $35 76 BOD EPA 405/Std Meth 52106 $20 $28 $35 77 Chloride EPA 300.0 or Std Method 4500CI6 $15 $21 $26 78 COD EPA 410.4 $20 $28 $35 ' 79 Corrosivi , pH EPA 150.1 $5 $7 $9 80 Carba I EPA 531.1/553/632) $222 $388 $444 ' 81 Diazinon EPA 1657 $217 $380 $434 82 E coli, MPN $35 $49 $61 83 Fecal Coliform Std Method 9221E $35 $49 $61 ' 84 Fecal Streptococcus Std Method 9230 C $35 $49 $61 85 Hardness, Total as CaCO3 Std Method 2340 B or C $15 $21 $26 ' 86 Nitrogen, Ammonia EPA 350.2 $20 $28 $35 87 Nitrogen, Nitrate + Nitrite EPA 353.3 $35 88 Nitrogen, Total K'eldahl EPA 351.3 f a7T. tree,,_- A TX Contract—Analytical Lab Services Page 21 of 23 ' Accutest Laboratories Gulf Coast, Inc. Item Test and Method Digestioni Unit Price Number Filtration 7 day 3 day 24 Hour 89 Nitrogen, Total EPA 300 $20 $28 $35 90 Phosphorus, Total EPA 365.3 $25 $35 $44 91 Phosphorus, Dissolved EPA 365.2 $30 $42 $53 92 Solids, Total Dissolved -TDS EPA 160.1 $10 $14 $18 93 Solids, Total Suspended -TSS EPA 160.2 $10 $14 $18 94 Solids,Total EPA 160.3 $10 $14 $18 95 Sulfate EPA 375.2 or 300.0 $20 $28 $35 96 Trihalomethanes, Total EPA 501 EPA 524 $102 $178 $204 97 Turbidity EPA 180.1 $10 $14 $18 98 Aluminum EPA 200.7/200.8 D $6 $8 $11 ' 99 Arsenic EPA 200.7/200.8 D $6 $8 $11 100 Cadmium EPA 200.7/200.8 D $6 $8 $11 101 Chromium EPA 200.7/200.8 D $6 $8 $11 102 Copper EPA 200.7/200.8 D $6 $8 $11 103 Iron EPA 200.7/200.8 D $6 $8 $11 104 Lead EPA 200.7/200.8 D $6 $8 $11 105 Manganese EPA 200.7/200.8 D $6 $8 $11 106 Mercury EPA 245.1 $20 $28 $35 107 Silver EPA 200.7/200.8 D $6 $8 $11 108 Zinc EPA 200.7/200.8 D $6 $8 $11 j 109 Filtration, Aqueous Sam le D $6 $8 $11 110 Total 8 RCRA Metals EPA 6010C/7471 $144 $187 N/A 111 Chlorinated Pesticides EPA 8081 B $126 $164 N/A 112 PCB Aroclors EPA 8082 $126 $164 N/A 113 PCB Congeners EPA 1668A NC $894 $1788 N/A 114 Volatiles, VOCs EPA 8260 NC $80 $112 N/A 115 Semi Volatiles, SVOCs EPA 8270 $290 $377 N/A ■ 116 % Lipid NC $45 $63 N/A 117 Sample homogenate preparation charge $25 $35 N/A 118 Other sample digestion/extraction charge $25 $35 N/A Notes: • One digestion per sample for metals(Total). • Filtration charge will apply only to dissolved metals,if requested. • 24 Hr TAT not possible on biological tissue due to preparation of sample. • A"D"in the Digestion/Filtration column next to each analysis for which a digestion or extraction charge will apply. The additional digestion cost is specified in Line 63 (Line 118 for biological tissue). Contract—Analytical Lab Services Page 22 of 23 Accutest Laboratories Gulf Coast, Inc. r SIGNATURE PAGE IN WITNESS THEREOF, the parties hereto have made and executed this Agreement in multiple originals this —L9 day of Z'A Nvw'�j 2011 in Fort Worth, Tarrant County, Texas. p 1 i CITY OF FORT WORTH: ACCUTEST LABORATORIES GU F COAST, INC. Fernando Costa i cent es Assistant City Manager esident RECgW,FN D Witness Michael A. �-- ange Seal: Assistant D ctor ta rviEnvironmen eces Division APPROVED AS TO FORM AND LEGALITY: Arthur N. Bashor Assistant City Attorney ATTEST: Marty Hendrix ��4b a City Secretary ,p. Rr�4ii� hI, O�00o0000c, _ u 0000 � 0 0 M&C d�S �0 �o ozd o* �d °°U000 0o0 Date �d� V Contract—Analytical Lab Services Page 23 of 23 Accutest Laboratories Gulf Coast, Inc. Page 1 of 2 City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 11116/2010 DATE: Tuesday, November 16, 2010 REFERENCE NO.: **C-24592 LOG NAME: 20ACCUTEST SUBJECT: Authorize the Execution of a Professional Services Contract with Accutest Laboratories Gulf Coast, Inc., for Laboratory Analytical Services, Not to Exceed $100,000.00 Per Contract Year RECOMMENDATION: It is recommended that the City Council authorize the City Manager to execute a professional services contract not to exceed $100,000.00 per contact year with Accutest Laboratories Gulf Coast, Inc., for laboratory analytical services. DISCUSSION: The Transportation and Public Works Department, Environmental Services Division requires a professional services contract for the furnishing of all labor, materials and equipment necessary for performing environmental laboratory analyses of air, soil, water and asbestos samples collected for various projects and inspections. The cost for the laboratory analytical services will not exceed $100,000.00 per contract year. The proposed agreement will commence on the date the contract is fully executed and continue for a period of one-year with three one-year options to renew. Renewal may be effected by written notification by the City Manager or his designated representative to the contractor within 30 days of the expiration of the prior term and does not require specific City Council approval, provided the City Council has appropriated sufficient funds to satisfy the City's obligations during the renewal term. The Environmental Services Division requested proposals for environmental laboratory analysis on July 22, 2010. Proposal packages were received on August 12, 2010 from the following firms: Accutest Laboratories Gulf Coast, Inc. Ana-Lab Corporation ERMI Environmental Laboratories, Inc. Oxidor Laboratories, LLC Southern Petroleum Laboratories, Inc. TestAmerica Laboratories, Inc. TraceAnalysis, Inc. Xenco Laboratories The proposals were evaluated and scored based on a pre-determined list of factors including cost, performance on EPA proficiency tests, experience, qualifications of personnel, testing capabilities, and subcontractors. Based on the above described evaluation, staff is recommending the contract be awarded to Accutest Laboratories Gulf Coast, Inc. A waiver of the M/WBE requirements was requested by the department and approved by the M/WBE office because the purchase of services is from sources where subcontracting or supplier opportunities are negligible. FISCAL INFORMATION /CERTIFICATION: 1 .. 11 1 1 •// n- 1 1 A•1^ 0 ____'__` i_ __ O_Tl_ _T______T_____a 11 /n11/nil in Page 2 of 2 The Fir;ancial Management Services Director certifies that funds are available in the current operating budget, as appropriated, of the Environmental Protection Operating Fund. FUND CENTERS: TO Fund/Account/Centers FROM Fund/Account/Centers R103 531060,_0204106 $89 —550.00 8103 531060 0204104 $10,450.00 CERTIFICATIONS: Submitted for City-Manager's Office by Fernando Costa (6122) Originating_Department Head: William Verkest (7801) Additional Information Contact: Michael Gange (6569) ATTACHMENTS 1. 20AccutestR1035310600204106.doc (CFW[ntemal) 2. 20AccutestR1035310600204104.doc (Public) 3. MWBE Waiver Approved DEM10-09LAB.pdf (CFWIntemal) 4. R103 531060 (2).pdf (CFW[ntemal)