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HomeMy WebLinkAboutContract 41762 l CITY SECRETARY l CONTRACT NO CONTRACT 1 1 1 ] Between CITY OF FORT WORTH and i ENERCON SERVICES, INC. 1 For Professional Services Contract for Asbestos, Mold, and Industrial Hygiene Consulting Services Yg g j ENV 11-02: AIHS I Transportation & Public Works Environmental Services Division May 2011 OEFICiAL (RECORD CITY SECRETARY FT. W09114, TX M&C Review Page 1 of 2 Official site of the(ity of Fort Worth, Texas CITY COUNCIL AGENDA FORT�TH COUNCIL ACTION: Approved on 4/12/2011 DATE: 4/12/2011 REFERENCE NO.: **C-24850 LOG NAME: 20AIHS2011 CODE: C TYPE: CONSENT PUBLIC HEARING: NO SUBJECT: Authorize Execution of a Professional Services Contract with Enercon Services, Inc., for Industrial Hygiene, Asbestos and Mold Assessment 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 with Enercon Services, Inc., for industrial hygiene, asbestos and mold assessment services not to exceed $100,000.00 per contract year. ' DISCUSSION: The Transportation and Public Works Department and Environmental Services Division requires a professional services contract for the provision of industrial hygiene, asbestos and mold consultant services on an as-needed basis. The Environmental Services Division requested qualifications from industrial hygiene, asbestos and mold assessment service providers on December 9, 2010. Statements of Qualifications were received on January 13, 2011 from the following firms: Enercon Services, Inc. ERC Environmental Consultants, Inc. Professional Service Industries, Inc. Strategic Environmental Health & Safety Solutions, Inc. SWG Consultants, Inc. dba Southwest Geoscience ITerracon Consultants, Inc. Staff first reviewed the Statements of Qualifications received and selected Enercon Services, Inc. based on demonstrated competence and qualifications to perform the services. Staff then reviewed the sealed cost proposal and determined the prices submitted to be fair and reasonable. Staff recommends award of the contract to Enercon Services, Inc. The contract term will be one year, with three one-year options to renew. Renewal may be affected by mutual agreement in writing 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 that the City Council has appropriated sufficient funds to satisfy the City's obligation during the renewal term. This contract will span two fiscal years, with approximately 40 percent of the expenditures expected in Fiscal Year 2011 and the remaining 60 percent occurring in Fiscal Year 2012. Enercon Services, Inc., is in compliance with the City's M/WBE Ordinance by committing to five percent M/WBE participation. The City's goal on this project is five percent. FISCAL INFORMATION/CERTIFICATION: The Financial Management Services Director certifies that funds are available in the current operating budget, as appropriated, of the Environmental Protection Operating Fund (R103). http://apps.cfwnet.org/council_packet/mc review.asp?ID=14915&councildate=4/12/2011 4/15/2011 M&C Review Page 2 of 2 TO Fund/Account/Centers FROM Fund/Account/Centers R103 539120 0204106 $100000.00 Submitted for City Manager's Office by: Fernando Costa (6122) Originating Department Head: Greg Simmons (Acting) (7862) Additional Information Contact: Michael A. Gange (6569) _._..._... .. - ._... _.. ......... ATTACHMENTS f http://apps.cfwnet.org/council_packet/mc_review.asp?ID=14915&councildate=4/12/2011 4/15/2011 I STATE OF TEXAS § § KNOWN ALL BY THESE PRESENTS: COUNTY OF TARRANT § I This Contract is entered into by and between the City of Fort Worth ("City"), a home-rule municipality located within Tarrant, Denton, Parker, and Wise Counties, Texas, acting through Fernando Costa, its duly authorized Assistant City Manager, and Enercon Services, Inc., an Oklahoma corporation I ("Contractor"), acting through John R. Corn, its duly authorized Vice President. City and Contractor may be referred to herein individually as a Party, or Icollectively as the Parties. WITNESSETH: IThat for and in consideration of mutual covenants and agreements herein contained, the Parties hereto mutually agree as follows: IARTICLE 1. DEFINITIONS Air Monitoring means the collection of airborne samples for analysis of asbestos fibers. AIHA means the American Industrial Hygiene Association. Asbestos means the asbestiform varieties of chrysotile, amosite, crocidolite, tremolite, anthophyllite, and actinolite and all materials containing one (1%) percent or more of any of those substances. Asbestos abatement means the removal, the encapsulation or the enclosure of asbestos for the purpose of, that has the effect of, reducing or eliminating airborne concentrations of asbestos fibers or amounts of ACM. Asbestos abatement activity means asbestos abatement and any on-site preparations or clean-up related to the abatement. Asbestos-containing material (ACM) means materials or products that contain more than one percent (1 .O%) of any kind or combination of asbestos, as determined by Environmental Protection Agency (EPA) recommended methods as listed in Section 40 of the Code of Federal Regulations, (CFR) Part 763, Subpart F and 40 CFR 763 Subpart El Appendix A. This means component of a structure. OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Contract—Asbestos, Mold, and Industrial Hygiene Consultant Services I Pa Enercon Services, Inc. Asbestos exposure means airborne asbestos fiber concentrations resulting from disturbance or deterioration of asbestos or asbestos containing material (ACM). Asbestos-related activity means the disturbance (whether intentional or unintentional), removal, encapsulation, or enclosure of asbestos, including preparations or final clearance, the performance of asbestos surveys, the development of management plans and response actions, asbestos project design, the collection or analysis of asbestos samples, monitoring for airborne asbestos, bidding for a contract for any of these activities, or any other activity required to be licensed under the Texas Asbestos Health Protection Act. Asbestos removal means any action that dislodges, strips, or otherwise takes away asbestos containing material (ACM). City 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. Containment means a portion of the regulated area that has been sealed and placed under negative air pressure with high efficiency particulate air-filter (HEPA) filtered negative air machines. 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 Enercon Services, Inc. ' Deliverable Document means a report, photograph, or an invoice that shows the completion of one of the work tasks and/or subtasks. Encapsulation means a method of control of asbestos fibers in which the surface of asbestos containing material (ACM) is penetrated by or covered with a liquid coating prepared for that purpose. Enclosure means the construction of an airtight, impermeable, semi-permanent barrier surrounding asbestos to prevent the release of asbestos fibers into the air. Friable material means materials that when dry can be crumbled, pulverized, or reduced to powder by hand pressure, and includes previously non-friable Contract—Asbestos, Mold, and Industrial Hygiene Consultant Services Page 2 of 23 Enercon Services, Inc. Imaterial after such previously non-friable material becomes damaged to the extent that, when dry, it may be crumbled, pulverized, or reduced to powder by Ihand pressure. HEPA means a high-efficiency particulate air filter, capable of trapping and I retaining 99.97% of mono-dispersed airborne particles 0.3 micron or larger in diameter. INESHAP means the United States Environmental Protection Agency National Emissions Standards for Hazardous Air Pollutants, as described in Title 40 CFR Part 61. NIOSH means the National Institute of Occupational Safety and Health. P Y INotice 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. NVLAP means the National Voluntary Laboratory Accreditation Program. IOperations and Maintenance (O&M) means operations and maintenance activities that are restricted to small-scale, short-duration work practices and I engineering controls for tasks that result in the disturbance, dislodgment, or removal of asbestos in the course of performing repairs, maintenance, renovation, installation, replacement, or cleanup operations (Title 29 CFR, Sec. 1926.58, Appendix G titled 'Work Practices and Engineering Controls for Small- Scale, Short-Duration Asbestos Renovation and Maintenance Activities"). OSHA means the Occupational Safety and Health Administration of the United I States Department of Labor. I OSHA regulations means those regulations found in 29 Code of Federal Regulations. Regulated area means the demarcated area in which asbestos abatement activity takes place, and in which the possibility of exceeding the permissible exposure limits (PEL) for the concentrations of airborne asbestos exists. iTask 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. OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Contract—Asbestos, Mold, and Industrial Hygiene Consultant Services Page 3 of 23 Enercon Services, Inc. 7 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 P Y 9 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—Asbestos, Mold, and Industrial Hygiene Consultant Services Page 4 of 23 Enercon Services, Inc. i Section 3. IInvoice and Payment. The Contractor shall provide monthly invoices to the City. All invoices must I 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 Iand services provided. Payment for services rendered shall be due within thirty (30) days of the Iuncontested 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, Iand 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 Icontesting any billing or portion thereof. The Contractor shall also provide the City with quarterly updates showing the I 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 contract shall commence on the date the contract is fully executed by all parties unless otherwise stipulated in the Notice of Award Letter, and contingent upon the completion and submittal of all required pre-award documents; and shall continue for a period of twelve (12) months. However the term of this contract may be extended by the duly authorized written agreement for up to three (3) additional twelve (12) month periods for a total of forty-eight (48) months. The contract prices resultant from this solicitation shall prevail for the full duration of the initial contract term. For subsequent renewals all conditions, terms, and pricing shall remain the same as stated in the original contract unless otherwise agreed upon in writing by both parties. 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 OFFICIAL RECORD Contract—Asbestos, Mold, and Industrial Hygiene Consultant Services CITFfa&Xf KWRY Enercon Services, Inc. F-T, wnRTH, TX control of and the exclusive right to control the details of its work to be performed hereunder and all persons performing same, and shall be solely responsible for the acts and omissions of its officers, agents, employees, contractors and subcontractors. The doctrine of respondeat superior shall not apply as between City and Contractor, its officers, agents, employees, contractors, and subcontractors, and nothing herein shall be construed as creating a partnership or joint venture between City and Contractor. ARTICLE 6. PROFESSIONAL COMPETENCE AND INDEMNIFICATION Work performed by Contractor shall comply in all aspects with all applicable local, state and federal laws and with all applicable rules and regulations promulgated by the local, state and national boards, bureaus and agencies. ' Approvals issued by the City or another entity shall not constitute or be deemed to be a release of the responsibility and liability of Contractor or its officers, agents, employees, contractors and subcontractors for the accuracy and competency of its services performed hereunder, which shall be performed in accordance with the applicable professional standard of care. 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 Contract—Asbestos, Mold, and Industrial Hygiene Consultant Services Page 6 of 23 Enercon Services, Inc. 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 IState'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 I 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. IARTICLE 8. INDEMNIFICATION ISection 1. IDefinitions. In this paragraph, the following words and phrases shall be defined as follows: IEnvironmental Damages shall mean all costs, expenses, claims, judgments, damages, losses, penalties, fines, liabilities (including strict liability), I 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 Ii i any attorney's fees, costs and expenses incurred in enforcing I W16ECORD or collecting any sums due hereunder; and CITY SECRETARY FTo WORTH, TX Contract—Asbestos, Mold, and Industrial Hygiene Consultant Services Page 7 of 23 Enercon Services, Inc. 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 political 1 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 1 individual engaged in the provision of services contemplated by this contract. 1 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. Contract—Asbestos, Mold, and Industrial Hygiene Consultant Services Page 8 of 23 Enercon Services, Inc. Section 3. I General Indemnification. CONTRACTOR DOES HEREBY RELEASE, I 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 IWHICH 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 IAGREEMENT, WHEN SUCH INJURIES, DEATH, OR DAMAGES ARE CAUSED BY THE SOLE NEGLIGENCE OF CONTRACTOR, ITS OFFICERS, AGENTS, EMPLOYEES, OR CONTRACTORS, OR THE JOINT NEGLIGENCE IOF CONTRACTOR, ITS OFFICERS, AGENTS, EMPLOYEES, OR CONTRACTORS AND ANY OTHER PERSON OR ENTITY. ISection 4. I Environmental Indemnification. CONTRACTOR DOES HEREBY RELEASE, INDEMNIFY, DEFEND, REIMBURSE, AND HOLD HARMLESS THE CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES, AGAINST ANY AND ALL I 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. OFFICIAL RECORD Contract—Asbestos, Mold, and Industrial Hygiene Consultant Services CITYP89011W"Y Enercon Services, Inc. FT WOIR M 'Its 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 subcontractor has been so obtained 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 $5,000,000 each occurrence; $5,000,000 aggregate 2. Professional Liability Insurance $1,000,000 each claim; $2,000,000 aggregate Professional Liability Insurance shall be written on a project specific basis. The retroactive date shall be coincident with or prior to the date of this contract and the certificate of insurance shall state that the coverage is ' claims-made and the retroactive date. The insurance coverage shall be maintained for the duration of this contract and for five (5) years following completion of the contract(Tail Coverage). An annual certificate of insurance ' shall be submitted to the City for each year following completion of this contract. 3. Automobile Liability 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, Contract—Asbestos, Mold, and Industrial Hygiene Consultant Services Page 10 of 23 Enercon Services, Inc. r unloading and transporting materials collected under the Contract shall be included under this policy. I4. Worker's Compensation Coverage A: statutory limits I Coverage B: $100,000 each accident $500,000 disease - policy limit $100,000 disease - each employee I5. Environmental Impairment Liability (EIL) and/or Pollution Liability $4,000,000 per occurrence. EIL coverage(s) must be included in policies Ilisted 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 Iincluded under the Automobile Liability insurance or other policy(s). I 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. I1. 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. I 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. I4. 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 I 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; OFFICIAL RECORD Contract—Asbestos, Mold, and Industrial Hygiene Consultant Services +� 'ARY Enercon Services, Inc. FT, WrW7H. TX 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 required by the Contractor to maintain the same or reasonably equivalent insurance coverage as required for the Contractor. When subcontractors maintain insurance coverage, Contractor shall provide City with documentation thereof on a certificate of insurance. Notwithstanding anything to the contrary contained herein, in the event a subcontractor's insurance coverage is , canceled or terminated, such cancellation or termination shall not constitute a breach by Contractor of the contract. ARTICLE 10. LICENSES AND PERMITS Contractor certifies and warrants that on the day any work is to commence under this contract and during the duration of the contract it shall have and maintain all of the current, valid, and appropriate federal, state, and local licenses and permits necessary for the provision of services under this contract. Contractor also certifies that if it uses any subcontractor in the performance of this contract, that such subcontractor shall have and maintain all of the current, valid, and appropriate federal, state, and local licenses and permits necessary for the provision of services under this contract. Contract—Asbestos, Mold, and Industrial Hygiene Consultant Services Page 12 of 23 Enercon Services, Inc. ARTICLE 11. TRANSFER OR ASSIGNMENT ICity 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 Iafter final payment under this Agreement, have access to and the right to examine any directly pertinent books, documents, papers and records of I 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 I workspace in order to conduct audits in compliance with the provisions of this section. City shall give Contractor reasonable advance notice of intended audits. I (b) Contractor further agrees to include in all its subcontracts hereunder, a provision to the effect that the subcontracting contractor agrees that the City I shall, until the expiration of three (3) years after final payment under the subcontract, have access to and the right to examine any directly pertinent books, documents, papers and records of such subcontractor, involving I 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, the City has goals for the participation of minority business enterprises and woman business enterprises ("M/WBE") in City contracts. Contractor agrees to a minimum M/WBE ®F%IAL RECORD Contract—Asbestos, Mold, and Industrial Hygiene Consultant Services a e 1 23 Enercon Services, Inc. CITYTk RE] CORD W�RY�' `'X participation of 5% in accordance with its proposal and the aforementioned ordinance. Contractor acknowledges the M/WBE goal established for this Agreement and its commitment to meet that goal. Any misrepresentation of facts (other than a negligent misrepresentation) and/or the commission of fraud by the Contractor may result in the termination of this Agreement and debarment from participating in City contracts for a period of time of not less than three (3) years. ARTICLE 14. NON-DISCRIMINATION During the performance of this contract, Contractor shall not discriminate in its employment practices and shall comply with all applicable provisions of Chapter 17, Article III of the Code of the City of Fort Worth. ' Contractor agrees not to discriminate against any employee or applicant for employment because of because of age, race, color, religion, sex, disability, national origin, sexual orientation, transgender, gender identity or gender expression in any manner involving employment, including the recruitment of applicants for employment, advertising, hiring, layoff, recall, termination of employment, promotion, demotion, transfer, compensation, employment classification, training and selection for training or any other terms, conditions or privileges of employment. Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of the non- discrimination clause. Contractor also agrees that in all solicitations or advertisements for employees ' placed by or on behalf of this contract, that Contractor is an equal opportunity employer. Notices, advertisements, and solicitations placed in accordance with federal law, ' rule or regulation shall be deemed sufficient for the purpose of meeting the requirements of this section. ARTICLE 15. OBSERVE AND COMPLY Contractor shall at all times observe and comply with all federal, state, and local laws and regulations and with all City ordinances and regulations which in any way affect this Agreement and the work hereunder, and shall observe and comply with all orders, laws ordinances and regulations which may exist or may be enacted later by governing bodies having jurisdiction or authority for such enactment. No plea of misunderstanding or ignorance thereof shall be considered. Contractor agrees to defend, indemnify and hold harmless City and all of its officers, agents Contract—Asbestos, Mold, and Industrial Hygiene Consultant Services Page 14 of 23 Enercon Services, Inc. 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. I ARTICLE 16. DEFAULT I 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 I 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 Ithe satisfaction of the City within ten (10) days after written notice shall constitute default, and shall result in termination of this contract. IContractor 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 I 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 Isevere weather. ARTICLE 17. TERMINATION City may terminate this contract without cause by giving thirty (30) days written notice to Contractor. In the event of termination, any work in progress will continue to completion unless otherwise specified in the notice of termination. If the City terminates this contract under this provision, City shall pay Contractor for all services performed prior to the termination. Termination shall be without prejudice to any other remedy the City may have. All data and completed or partially completed documents prepared under this contract shall be promptly turned over to the City upon termination of this contract. I OFFICIAL RECORD CITY SECRETARY FT WORTH, TX Contract—Asbestos, Mold, and Industrial Hygiene Consultant Services P-gop 15 of 23 Enercon Services, Inc. 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 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. Contract-Asbestos, Mold, and Industrial Hygiene Consultant Services Page 16 of 23 Enercon Services, Inc. ARTICLE 23. RIGHTS AND REMEDIES NOT WAIVED In no event shall the making by the City of any payment to Contractor constitute or be construed as a waiver by the City of any breach of covenant, or any default which may then exist, on the part of Contractor, and the making of any such payment by the City while any such breach or default exists shall in no way Iimpair 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 Ior 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. I All costs and attorneys fees incurred b the City in the enforcement of an provision Y Y tY Y P of this contract shall be paid by the Contractor. The remedies provided for herein are in addition to an other remedies available p y e to Ithe City elsewhere in this contract and by law. ARTICLE 24. NOTICES Notices to be provided hereunder shall be sufficient if forwarded to the other I 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: IIf to the City: City of Fort Worth TPW — Environmental Services Division I Attn: Michael Gange 1000 Throckmorton Street Fort Worth, Texas 76102-6311 If to the Contractor: Enercon Services, Inc. Attn: Charles Harlan, P.G. 12100 Ford Road, Suite 200 Dallas, TX 75234 ARTICLE 25. WARRANTY Contractor warrants that it understands the currently known hazards and suspected hazards which are presented to persons, property and the EOFFICIAL REGARD Contract—Asbestos, Mold, and Industrial Hygiene Consultant Services � $1�.R1( Enercon Services, Inc. ` TX 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 This contract, the contract documents, and any other documents incorporated by reference herein are binding upon the parties and contain all the terms and conditions agreed to by the City and Contractor, and no other contracts, oral or otherwise, 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. ' Contract—Asbestos, Mold, and Industrial Hygiene Consultant Services Page 18 of 23 Enercon Services, Inc. 1 ATTACHMENT A. SCOPE OF WORK Contractor will furnish all labor, materials and equipment necessary perform asbestos, mold, and industrial hygiene consultant services which include, but are I 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 I City owned facilities for the presence of indoor air contaminants and other duties as assigned. These professional services for industrial hygiene and asbestos Iconsultant 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: I ■ Assessment of public facilities for the presence of asbestos-containing material I ■ Development of removal specifications for asbestos-containing and contaminated material ■ Development of asbestos management plans IManagement and monitoring of asbestos abatement jobs ■ Air Monitoring for asbestos abatement I OSHA Air Monitoring for asbestos abatement contractor ■ Training ■ Asbestos Sample Analysis IIndustrial Hygiene Consultant Services including but not limited to: ■ Assessment of city facilities for the presence of indoor environmental I issues ■ OSHA type assessments for potential worker exposure issues ■ Noise level assessments of city facilities ITraining Mold Consulting Services including but no limited to: I ■ Assessment of public facilities for the presence of mold ■ Development of removal specifications for mold and mold contaminated material I ■ Development of mold management plans ■ Management and monitoring of mold abatement jobs ■ Training OFFICIAL RECORD IOther related duties as requested. CITY SECRETARY FT,WORTH, TX I Contract—Asbestos, Mold, and Industrial Hygiene Consultant Services Page 19 of 23 IEnercon Services, Inc. ATTACHMENT B. FEE SCHEDULE Compensation to be paid shall be in accordance with the tables below. The total fee paid by the City shall not exceed a total of one hundred thousand dollars ($100,000). There is no guarantee of any minimum amount of work to be authorized by the city under this contract. Personnel Charges Enercon Services, Inc. will perform services pursuant to this agreement on a time and materials basis. The hourly fee for personnel is shown in the table below. The indicated hourly rates are fully inclusive of all labor costs allowable under this contract and include direct and indirect employee costs including but not limited to ' insurance, vacation, holidays, worker compensation, taxes, other employee costs, and profit and overhead. Project Assignment/Title Straight Time Overtime Rate ($/Hr) Factor Certified Industrial Hygienist 115.00 1.0 Licensed Individual Asbestos Consultant 90.00 1.0 Licensed Mold Assessment Consultant 78.00 1.0 Licensed Asbestos Management Planner 72.00 1.0 ' Licensed Asbestos Inspector 60.00 1.0 Licensed Air Monitoring Technician 55.00 1.0 Licensed Asbestos Project Manager 55.00 1.0 Technician 50.00 1.25 AutoCad Technician 45.00 1.25 Administrative Assistant 35.00 1.25 Contract—Asbestos, Mold, and Industrial Hygiene Consultant Services Page 20 of 23 Enercon Services, Inc. Engineering positions require experience or education in the engineering field or disciplines. Technicians include hygienists providing support to other designated professionals and environmental specialists. The overtime rate is the straight time billing rate times the overtime factor for the position. For technicians and clerical positions, the overtime rate 1.25 times the straight time rate. Equipment Charges tOn some projects, specialized equipment must be used to complete the job effectively, efficiently, and safely. The table below gives the unit rates specified equipment will be at on time and materials. Equipment Rate ($) Low volume air sampling pumps (0.5 to 4 Ipm) 25.00/day/pump High volume air sampling pumps 0.5 to 4 Ipm 25.00/day/pump I Photo-ionization device 45.00/day Borescope 25.00/day TSI Calc Temp/RH Meter 40.00/day GE Protimeter moisture meter(or equivalent 15.00/day Thermal-imaging device FLIR camera 225.00/da X-Ray Fluorescence XRF device 550.00/da iPhase contrast microscope 75.00/day PPE (includes tyvek, boots, gloves, hard hat, 50.00/man/day safety glasses) Generator 100.00/da Company Vehicles (Passenger Cars and Light Trucks) 0.56/mile Subcontractor fees Cost + 10% Laboratory fees (asbestos, mold, other analytical) Note: These costs apply to PLM, TEM, mold Cost + 10% (cultured and non-cultured), bacterial, SUMA canisters, etc. I Other Direct Costs The City will be invoiced for other direct costs (ODCs) accrued in connection with authorized work assignments at actual cost plus ten (10) percent. These costs shall include, but not be limited to transportation and living expenses, communication I 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. OFFICIAL RECORD CITY SECRETARY FT WORTH, TX Contract—Asbestos, Mold, and Industrial Hygiene Consultant Services Page 21 of 23 Enercon Services, Inc. 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 within thirty (30) days of receipt. ENERCON invoices list total hours, billing rate, total personnel charges, travel and living expenses, and other applicable costs. Amounts outstanding after thirty(30) days from the date of receipt of the invoice will be subject to a late charge of one and one-half(1'/2) percent per month. 1 Contract—Asbestos, Mold, and Industrial Hygiene Consultant Services Page 22 of 23 Enercon Services, Inc. SIGNATURE PAGE IN WITNESS THEREOF, by executing this Agreement, CONTRACTOR and CITY indicate their acceptance with its terms and conditions that govern the Iperformance of the Services and rights and obligations of the parties. City of Fort Worth: Enercon Services, Inc. I Fernando Costa jJ R. Corn Assistant City an ger President Dated: ;� S // REC MM ND : I )W ,ness I ichael Gan a Seal: Asst. Direct —TP I APPROVED AS TO FORM AND LEGALITY: r /� /L Arthur N. Bashor Assistant City Attorney pow on spa � `o°0000poo o Y ATTEST: r; o ��� 0 0 Marty Hendrix a °°°°oo0 City Secretary vXo OFFICIAL M&c: C�.�� 5 o 41�a� u Contract—Asbestos, Mold, and Industrial Hygiene Consultant Services Page 23 of 23 Enercon Services, Inc.