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HomeMy WebLinkAboutContract 32420 r' T Y c`'-r%r,% RY ,Ic r NO. STATE OF TEXAS KNOW ALL MEN BY THESE PRESENTS COUNTY OF TARRANT THIS AGREEMENT is made and entered by and between the City of Fort Worth, Texas, a municipal corporation situated in Tarrant County, Texas, hereinafter called "CITY", acting herein by and through its duly authorized Assistant City Manager, and Kinsman and Associates, hereinafter called "ENGINEER" for the purpose of providing professional services for the third-party independent review of the Phase II Energy Savings Performance Contract(ESPC)proposal of Johnson Controls Inc(JCI). WITNESSETH That for and in consideration of the mutual covenants and agreements herein contained, the parties hereto do hereby covenant and agree as follows: SECTION I: SERVICES OF THE ENGINEER 1. CITY hereby contracts with ENGINEER as an independent contractor, and ENGINEER hereby agrees to perform, within the professional standards normally accepted in the State of Texas, the following professional services: l.1. Proposed project descriptions are accurate and correlate with on-site observations 1.2. Proposed projects are appropriate solutions to existing conditions 1.3. Methods of calculating savings are reasonable and accurate to accepted standards 1.4. Project savings estimates are obtainable 1.5. Project costs are reasonable and cost/benefits are in balance 1.6. The measurement and verification method proposed is applicable and adequate 1.7. The technical interest of CITY is protected in the contract documents 2. The preliminary scope of work and CITY facilities for the above professional services, as defined by JCls Preliminary Report dated 29 March 2005 and in accordance with potentially available $2.4M Texas State Energy Conservation Office(SECO)LoanSTAR funding, is as follows: 2.1. HVAC Plant Upgrades(WRMC, Central Library) 2.2. HVAC System Upgrades(WRMC,Central Library) 2.3. HVAC Control Upgrades (WRMC, Central Library) 2.4. Power Factor Correction(WRMC, FWCC,Central Library,City Hall) SECTION 1I: PERSONNEL 1. The following personnel will be assigned to this Project: 1.1. Sam Steele,Conservation Specialist,City of Fort Worth 1.2. Patrick Sullivan, President, Kinsman& Associates 2. Neither party may change key personnel without agreement by the other party. r jr 9/6/2005 9 e SECTION III: CHARACTER&EXTENT OF ENGINEER'S SERVICES 1. Perform services as outlined in ENGINEER's letter dated 26 August 2005, which is attached to and made a part of this Agreement. ENGINEER shall consult with CITY to clarify and define CITY's requirements relative to the assignments and review available data. 2. The schedule for the Project is: 2.1. Complete all services within 21-calendar days of receipt of the JCI proposal. 3. ENGINEER agrees to commit the personnel to each assignment as necessary in order to complete the assignment in an expeditious manner. 4. ENGINEER shall advise CITY as to the necessity of CITY's providing or obtaining from others services and data required in connection with the Assignment at CITY's cost and expense (which services and data ENGINEER is not to provide hereunder but on which ENGINEER may rely in performing services hereunder), and act as CITY's representative in connection with any such services of others. 5. ENGINEER shall pay for the printing of documents as apart of the proposed fee. SECTION IV: SPECIAL SERVICES OF ENGINEER 1. If authorized in writing by CITY, ENGINEER shall furnish or obtain from others Special Services necessary to complete the assignments at a cost stated by the Facility Manager by letter. SECTION V: COMPENSATION TO ENGINEER 1. The total compensation for all of the assignments to be performed by ENGINEER as described in SECTION III, CHARACTER&EXTENT of ENGINEER'S SERVICES hereof shall be$9,500. SECTION VI: METHOD OF PAYMENT 1. ENGINEER shall be paid not more frequently than once per month on the basis of statements prepared from the books and records of account of ENGINEER, such statements to be verified as to accuracy and compliance with the terms of this Agreement by an officer of ENGINEER. Payment according to statements will be subject to certification by the Director,Transportation and Public Works Department or his duly authorized representative that such work has been performed. 2. The above charges are on the basis of prompt payment of bills rendered and continuous progress of the work on the Assignment until completion. If CITY fails to make any agreed to payment due ENGINEER for services and out-of-pocket expenses within sixty-days after approval of ENGINEER's statement thereof, ENGINEER may, after giving seven-days' written notice to CITY, suspend services under this Agreement until ENGINEER has been paid in full all amounts due for services actually performed and out-of-pocket expenses actually incurred. SECTION VII: CITY RESPONSIBILITIES 1. Provide criteria and information as to CITY's requirements and designate a person with authority to act on CITY's behalf on all matters concerning the Assignment. 2. Assist ENGINEER in obtaining existing studies, reports and other available data and services of others pertinent to the Assignment and in obtaining additional reports and data as required. 3. Upon reasonable notice arrange for access to and make all provisions for ENGINEER to enter upon public and private property as may be required for ENGINEER to perform services hereund i 9/6/2005 Page 2 of 7 4. Designate in writing qualified persons who will act as CITY's representatives with respect to the Assignment for the purposes of transmitting instructions, receiving information, interpreting and defining CITY's policies and decisions with respect to ENGINEER's services. 5. Review all reports, recommendations and other documents and provide written decisions pertaining thereto within a reasonable time. 6. Upon reasonable notice provide labor and safety equipment to expose structural elements, to make temporary repairs, and to operate mechanical and electrical systems as required by ENGINEER in the services. 7. Provide such legal, accounting, insurance and other counseling services to CITY as may be required for the Assignment. 8. Bear all costs incident to compliance with this Section. SECTION VIII: TERMINATION 1. CITY may terminate this Agreement at any time for convenience or for any cause by notice in writing to ENGINEER. Upon receipt of such notice, ENGINEER shall immediately discontinue all services and work and the placing of all orders or the entering into Contracts for supplies, assistance, facilities and materials in connection with the performance of this Agreement and shall proceed to cancel promptly all existing contracts insofar as they are chargeable to this Agreement. 2. If CITY terminates this Agreement under the foregoing paragraph, CITY shall pay ENGINEER for services performed in accordance herewith prior to such termination, less such payments having been previously made. Such payment shall be based upon the work completed up to the date of termination of the Agreement in accordance with the method of compensation prescribed in Sections V and VI hereof. ENGINEER shall also be compensated for all termination-related expenses such as meeting attendance, document reproduction, transfer of records. 3. Upon early termination or conclusion of this Agreement, ENGINEER shall provide CITY reproducible copies of all completed or partially completed engineering documents prepared under this Agreement that shall become the property of CITY and may be used by CITY in any manner it desires. ENGINEER shall not be liable for the use of such materials for any project other than the project described in this Agreement. SECTION IX: INDEMNITY AND INSURANCE 1. Approval by CITY of contract documents shall not constitute or be deemed to be a release of the responsibility and liability of ENGINEER, its officers, agents, employees and Subconsultants, for the accuracy and competency of the services performed under this Agreement, including but not limited to surveys, location of subsurface investigations, designs, working drawings and specifications and other engineering documents. 2. Such approval shall not be deemed to be an assumption of such responsibility and liability by CITY for any negligent act, error or omission in the conduct or preparation of the subsurface investigations, surveys, designs, working drawings and specifications and other documents by ENGINEER, its officers, agents, employees and Subconsultants, it being the intent of the parties that approval by CITY signifies CITY's approval of only the general design concept of the improvements to be constructed. 3. In this connection ENGINEER shall indemnify and hold CITY and all its officers, agents, servants and employees harmless from any loss,damage, liability or expenses, on account of damage to property and injuries, including death, to all persons, including but not limited to officers, agents, or employees of ENGINEER or Subcontractor, and all other persons performing any part of the work and improvements, which may arise out of any negligent act, error or omission in the performance of 9/6/2005 Page 3 of 7" ' " ENGINEER's professional services. In no event shall ENGINEER be liable for consequential damages. 4. ENGINEER shall defend at its own expense any suits or other proceedings brought against CITY, its officers, agents, servants and employees, or any of them on account thereof, and shall pay all expenses and satisfy all judgments which may be incurred by or rendered against them arising out or the indemnification; provided and except, however, that this indemnification provision shall not be construed as requiring ENGINEER to indemnify or hold CITY or any of its officers, agents, servants or employees harmless from any loss, damages, liability or expense, on account of damage to property or injuries to person caused by defects or deficiencies in design criteria and information furnished ENGINEER by CITY, or any deviation in construction from ENGINEER's designs, working drawings, specifications or other documents. 5. Without limiting the above indemnity, ENGINEER shall maintain a policy of comprehensive general liability insurance coverage with carriers acceptable to CITY in at least the following amounts: Commercial General Liability: $1,000,000 Per Occurrence $2,000,000 Aggregate Limit Workers Compensation: Coverage A: Statutory limits Coverage B: Employers Liability Insurance $100,000 Each Accident/Each Occurrence $100,000 Disease—per each employee $500,000 Bodily Injury/Disease—Policy Limit Automobile Liability: $1,000,000 each accident on a combined single basis OR $250,000 Property Damage $500,000 Bodily Injury per person per occurrence Professional Liability Insurance Errors and Omissions: $1,000,000 Per occurrence $2,000,000 Project aggregate 6. ENGINEER shall furnish CITY a Certificate of Insurance in at least the above amounts. Certificate shaIl contain a provision that such insurance cannot be canceled without 30 days prior written notice to CITY. CITY reserves the right to revise insurance requirements specified in this agreement to the best interests of CITY. 7. General Insurance Requirements 7.1. Commercial General Liability coverage shall be endorsed to name 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. 7.2. Certificate(s) of insurance shall document that insurance coverage specified are provided under applicable policies documented thereon. 7.3. Any failure on part of CITY to request required insurance documentation shall not constitute a waiver of the insurance requirements. 9/6/2005 Page 4 of 7 7.4. A minimum of forty-five days notice of cancellation, non-renewal or material change in coverage shall be provided to CITY. A ten(10)days notice shall be acceptable in the event of non-payment of premium. Such terms shall be endorsed onto ENGINEER's insurance policies. Notice shall be sent to the Facilities Manager, Transportation and Public Works Department, 1000 Throckmorton, Fort Worth,TX 76102. 7.5. CITY shall not be responsible for the direct payment of any insurance premiums required by this agreement. It is understood that insurance cost is an allowable component of ENGINEER's general overhead. 7.6. CITY reserves the right to revise insurance requirements specified in this agreement according to the best interests of CITY. 7.7. Insurers for all policies must be authorized to do business in the state of Texas or be otherwise approved by CITY;and,such insurers shall be acceptable to CITY in terms of their financial strength and solvency. 7.8. Deductible limits,or self-insured retentions,affecting insurance required herein may be acceptable to CITY at its sole discretion;and, in lieu of traditional insurance, any alternative coverage maintained through insurance pools or risk retention groups must be also approved. Dedicated financial resources or letters of credit may also be acceptable to CITY. 7.9. CITY shall be entitled, upon its request and without incurring expense, to review ENGINEER's insurance policies including endorsements thereto and, at CITY's discretion, ENGINEER may be required to provide proof of insurance premium payments. 7.10.CITY shall not be responsible for the direct payment of any insurance premiums required by this agreement. It is understood that insurance cost is an allowable component of ENGINEER's indirect overhead. 7.11.All insurance, except for the Professional Liability insurance policy, shall be written on an occurrence basis. 7.12.The Professional Liability Policy shall be written on a"claims made" and shall be in effect for the duration of this agreement and for 12 months following ENGINEER's issuance of the Certificate of Substantial Completion. ENGINEER's current insurer shall list CITY as a certificate holder for a period of ten (I0) years following the issuance of the Certificate of Substantial Completion by ENGINEER. CITY shall be notified at least 30 days prior to cancellation or substantial change in coverage. 7.13.Subconsultants to ENGINEER shall be required by ENGINEER to maintain the same or reasonably equivalent insurance coverage, except for Professional Liability Insurance, as required for ENGINEER. ENGINEER shall provide CITY with documentation thereof on certificates of insurance. The ENGINEER shall assure that Subconsultants provide acceptable and appropriate levels of Professional Liability coverage or that ENGINEER's coverage provides coverage for the work of the Subconsultant. Notwithstanding anything to the contrary contained herein, in the event a subconsultant's insurance coverage is canceled or terminated, such cancellation or termination shall not constitute a breach by ENGINEER of the Agreement. SECTION X: INDEMNITY PERTAINING TO HAZARDOUS MATERIALS I. CITY acknowledges ENGINEER will perform part of the work at CITY's facilities that may contain hazardous materials, including asbestos containing materials, or conditions, and that ENGINEER had no prior role in the generation, treatment, storage, or disposition of such materials. In consideration of the associated risks that may give rise to claims by third parties or employees of CITY,CITY agrees in so far as permitted by law, to indemnify ENGINEER from any and all losses, damages, claims, or actions brought by third party or employees of CITY against ENGINEER or ENGINEER's employees, agents, officers, or directors, in any way arising out of the presence of hazardous materials or 9/6/2005 Page 5 of 7 conditions at CITY's facilities, except for claims shown by final judgment to arise out of the sole negligence of ENGINEER. CITY shall defend at its own expense any suits of other proceedings brought against ENGINEER and its officers, agents, servants, and employees or any of them on account thereof. Nothing herein shall be construed so as to require CITY to levy or assess any tax. 2. In connection with hazardous waste, including petroleum products, CITY agrees to the maximum extent permitted by law to defend, hold harmless and indemnify ENGINEER from and against any and all claims and liabilities resulting from CITY's violation of any federal, state or local statute, regulation or ordinance relating to the disposal of hazardous substances or constituents. Nothing herein shall be construed so as to require CITY to levy or assess any tax. 3. The requirements contained in this Section shall not apply if ENGINEER introduces the hazardous materials or conditions. SECTION XI: RIGHT TO AUDIT I. ENGINEER agrees that 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 ENGINEER involving transactions relating to this Agreement. ENGINEER agrees that CITY shall have access during normal working hours to all necessary ENGINEER facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. CITY shall give ENGINEER reasonable advance notice of intended audits. 2. ENGINEER further agrees to include in all its subcontracts hereunder a provision to the effect that the subconsultant agrees that CITY shall, until the expiration of three (3) years after final payment under the subcontract, have access to and the right to examine any directly pertinent books, documents, papers and records of such subconsultant, involving transactions to the subcontract, and further, that CITY shall have access during normal working hours to all subconsultant 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 subconsultant reasonable advance notice of intended audits. 3. ENGINEER and Subconsultants agree to photocopy such project-related documents as may be requested by CITY. CITY agrees to reimburse ENGINEER and Subconsultant for the costs of copies at the rate published in the Texas Administrative Code. SECTION XII: SUCCESSORS AND ASSIGNS 1. CITY and ENGINEER each bind themselves, their successors and assigns, to the other party to this Agreement and to the successors and assigns of each other party in respect to all covenants of this Agreement. SECTION XIII: ASSIGNMENT I. Neither party hereto shall assign, sublet or transfer its interest herein without prior written consent of the other party, and any attempted assigriment, sublease or transfer of all or any part hereof without such prior written consent shall be void. SECTION XIV: INDEPENDENT ENGINEER I. ENGINEER shall perform all work and services hereunder as an independent Engineer, and not as an officer, agent, servant or employee of CITY. ENGINEER shall have exclusive control of, and the exclusive right to control the details of the work performed hereunder, and__all_persons performing 9/6/2005 Page 6 of 7 same, and shall be solely responsible for the acts and omissions of its officers, agents, employees and Subconsultants. Nothing herein shall be construed as creating a partnership or joint venture between CITY and ENGINEER, its officers, agents, employees and Subconsultants, and doctrine of respondent superior has no application as between CITY and ENGINEER. SECTION XVI: OBSERVE AND COMPLY 1. If permitting authorities require design changes so as to comply with published design criteria and/or current engineering practice standards which ENGINEER should have been aware of at the time this Agreement was executed, ENGINEER shall revise plans and specifications, as required, at its own cost and expense. However, if design changes are required due to the changes in the permitting authorities' published design criteria and/or practice standards criteria which are published after the date of this Agreement which ENGINEER could not have been reasonably aware of, ENGINEER shall notify CITY of such changes and an adjustment in compensation will be made through an amendment to this Agreement. SECTION XVII: VENUE 1. Venue of any suit or cause of action under this Agreement shall lie in Tarrant County, Texas. IN TESTIMONY THEREOF, CITY has caused this instrument to be signed in triplicate in its name and on its behalf, by its City Manager and attested by its City Secretary, with the Corporate Seal affixed; and ENGINEER has also properly executed this instrument in triplicate copies, each of which is deemed an original. EXECUTED E TY 0T TEXAS,THIS day of C.E.,r By: APPROVED: Principal's Name, trick P.Sullivan Kinsman&Associates, Consulting Engineers President Office(President or Vice-President) By: 4Assista anager APPROVAL RECOMMENDED: RECO ED: By: /��� By: Director,Transportation and Public Works City Secretary APPROVED T FO A D LE ITY: By: Date: CiVAtto e 9/6/2005 Page 7 of 7 KINSMAN &ASSOCIATES, Consulting Engineers Systems Analysis and Design August 26, 2005 Mr. Greg Simmons Facilities Manager City of Fort Worth Transportation and Public Works Department 909 Taylor Street Fort Worth, Texas 76102 Dear Mr. Simmons: We are hereby proposing to perform a third-party independent review of the Energy Savings Performance Proposal (Phase II) you will be receiving from Johnson Controls. Our proposed review meets the requirements of the State for third-party reviews, as well as the requirements to participate in the State LoanSTAR Program. Our proposal review will include verification of the following: 1. Proposed project descriptions are accurate and correlate with on-site observation. 2. Proposed projects are appropriate solutions to existing conditions. 3. Methods of calculating savings are reasonable and accurate to acceptable standards. 4. Project savings estimates are obtainable. 5. Project costs are reasonable and cost benefits are in balance. 6. The measurement and verification method proposed is applicable and adequate. 7. The technical interest of the owner is protected in the contract documents. We will perform an on-site visit of your facilities, and we will review procedures, documents, and backup data Johnson Controls is using to develop their proposal for the City. We will also review applicable technical aspects of their proposal. However, we do not provide any legal review. Our proposed fixed price for this work is nine thousand five hundred dollars ($9,500.00) payable monthly on a percent completion basis. If you have any questions regarding this proposal, please give us a call. Thank you for your consideration. Sincerely, 41V/V Patrick P. Sullivan, P.E. President 1701 N.Greenville Ave.A Suite 600 A Richardson,Texas 75081 A Ph.(972)644-7876 Fax:(972)644-3355 DATE MM DD YYYY AW-R4 CERTIFICATE OF LIABILITY INSURANCE 09/06/2 0' PRODUCER (972)581-4800 FAX (972)980-1813 THIS CERTIFICATE IS ISSUED AS AMATTER OF INFORMATION Bell Insurance Group ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE 16980 Dallas Parkway HOLDER.THIS CERTIFICATE DOES NOT AMEND,EXTEND OR Y ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Dallas, TX 75248 Stacy McKinney INSURERS AFFORDING COVERAGE NAIC# INSURED Kinsman & Associates, INSURERA: Zurich American Ins. Group 1701 N. Greenville Avenue, 600 INSURERB: The Hartford Companies 22357 Richardson, TX 75081 INSURER C: CNA INSURER D: INSURER E: COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED.NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR ADDT TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION LIMITS GENERAL LIABILITY PASO42635384 09/26/2004 09/26/2005 EACH OCCURRENCE $ 11000,000 X COMMERCIAL GENERAL LIABILITY DAMAGE TO RENTED $ 1,000,000 CLAIMS MADE T OCCUR MED EXP(Anyone person) $ 10,000 A PERSONAL&ADV INJURY $ 1,000,000 GENERAL AGGREGATE $ 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMP/OP AGG $ 2,000,000 POLICY JET LOC AUTOMOBILE LIABILITY SBSO42659574 09/26/2004 09/26/2005 COMBINED SINGLE LIMIT X ANY AUTO (Ea accident) $ 1,000,000 ALL OWNED AUTOS BODILY INJURY SCHEDULED AUTOS (Per person) $ A HIRED AUTOS BODILY INJURY $ NON-0W NED AUTOS (Per accident) PROPERTY DAMAGE $ (Per accident) GARAGE LIABILITY AUTO ONLY-EA ACCIDENT $ ANY AUTO OTHER THAN EA ACC $ AUTO ONLY: AGG $ EXCESSIUMBRELLA LIABILITY EACH OCCURRENCE $ OCCUR ❑ CLAIMS MADE AGGREGATE $ $ DEDUCTIBLE $ RETENTION $ $ WORKERS COMPENSATION AND 46 WEC DW7796 10/18/2004 10/18/2005 X I WC STATU- OTH- TORY LIMITS ER EMPLOYERS'LIABILITY E.L.EACH ACCIDENT $ 500,000 B ANY PROPRIETOR/PARTNER/EXECUTNE OFFICERIMEMBER EXCLUDED? E.L.DISEASE-EA EMPLOYEE $ 500,000 H yes,describe under SPECIAL rPROVISIONS below E.L.DISEASE-POLICY LIMIT $ S00,000 ro�essional Liability SFA114025986 03/13/2005 03/13/2006 $1,000,000 Per Occurrence C $2,000,000 Aggregate DESCRIP ION OF OPERAiION S I LgCAT NS I VEH CLES I EXG 4USIONS AD�E D BY ENDORSEMENT I SPECIAL P OVIgIONS, erti icate Holder is istec� as Additional Insured on Genera Liability. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE City Of Fort Worth EXPIRATION DATE THEREOF,THE ISSUING INSURER WILL ENDEAVOR TO MAIL Transportation & Public Works Dept _ 45__DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, Facilities Manager BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY 1000 Th rockmorton OF ANY KIND UPON THE INSURER,ITS AGENTS OR REPRESENTATIVES. Fort Worth, TX 76102 AUTHORIZED REPRESENTATIVE Byron Johnson/STACY ACORD 25(2001/08) ©ACORD CORPORATION 1988