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HomeMy WebLinkAboutContract 45382 (2)CITYSECRETARY' CONTRACT NO. �..__. PROFESSIONAL SERVICES AGREEMENT WASTE CHARACTERIZATION AUDIT This PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into by and between the CITY OF FORT WORTH (the "City"), a home rule municipal corporation situated in portions of Tarrant, Denton and Wise Counties, Texas, acting by and through Charles Daniels, its duly authorized Assistant City Manager, and Gershman, Brickner & Bratton Inc. ("Contractor"), a Maryland Corporation and acting by and through Harvey William Gershman, its duly authorized President, each individually referred to as a "party" and collectively referred to as the "pa rties." CONTRACT DOCUMENTS: The Contract documents shall include the following: 1. This Agreement for Professional Services 2. Exhibit A — Statement of Work 3. Exhibit B — Payment Schedule All Exhibits attached hereto are incorporated herein and made a part of this Agreement for all purposes. In the event of any conflict between the documents, the terms and conditions of this Professional Services Agreement shall control. 1. SCOPE OF SERVICES. Consultant hereby agrees to provide the City with professional services for the purpose of a Waste Characterization Audit Study. Attached hereto and incorporated for all purposes incident to this Agreement is Exhibit "A," Statement of Work, more specifically describing the services to be provided hereunder. 2. TERM. This Agreement shall commence upon February 24, 2014 ("Effective Date") and shall expire upon completion of the work and receipt of all deliverables as specified in Exhibit "A" Statement of Work (except for Articles 6 and 8, which shall survive) unless terminated earlier in accordance with the provisions of this Agreement. 3. COMPENSATION. The City shall pay Consultant an amount not to exceed $37,500.00 in accordance with the provisions of this Agreement and the Payment Schedule attached as Exhibit "B" which is incorporated for all purposes herein. Consultant shall not perform any additional services for the City not specified by this Agreement unless the City requests and approves in writing the additional costs for such services. The City shall not be liable for any additional expenses of Consultant not specified by this Agreement unless the City first approves such expenses in writing. OFFICIAL RECORD CITY SECRETARY ' RECEIVED FEB 261014 4. TERMINATION. 4.1. Written Notice. The City or Consultant may terminate this Agreement at any time and for any reason by providing the other party with 30 days written notice of termination. 4.2 Non -appropriation of Funds. In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any payments due hereunder, City will notify Consultant of such occurrence and this Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to the City of any kind whatsoever except as to the portions of the payments herein agreed upon for which funds shall have been appropriated. 4.3 Duties and Obligations of the Parties. In the event that this Agreement is terminated prior to the Expiration Date, the City shall pay Consultant for services actually rendered up to the effective date of termination and Consultant shall continue to provide the City with services requested by the City and in accordance with this Agreement up to the effective date of termination. 5. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION. Consultant hereby warrants to the City that Consultant has made full disclosure in writing of any existing or potential conflicts of interest related to Consultant's services under this Agreement In the event that any conflicts of interest arise after the Effective Date of this Agreement, Consultant hereby agrees immediately to make full disclosure to the City in writing Consultant, for itself and its officers, agents and employees, further agrees that it shall treat all information provided to it by the City as confidential and shall not disclose any such information to a third party without the prior written approval of the City. Consultant shall store and maintain City Information in a secure manner and shall not allow unauthorized users to access modify, delete or otherwise corrupt City Information in any way Consultant shall notify the City immediately if the security or integrity of any City information has been compromised or is believed to have been compromised. 6. RIGHT TO AUDIT. Consultant agrees that the City shall, until the expiration of three (3) years after final payment under this contract, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of the Consultant involving transactions relating to this Contract at no additional cost to the City. Consultant agrees that the City shall have access during normal working hours to all necessary Consultant facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. The City shall give Consultant reasonable advance notice of intended audits. Consultant further agrees to include in all its subcontractor agreements hereunder a provision to the effect that the subcontractor agrees that the City shall, until expiration of three (3) years after final payment of the subcontract, have access to and the right to examine at reasonable times any directly pertinent books, documents papers and records of such subcontractor involving transactions related 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 Professional Sei vices Agreement — Waste Characterization Audit Gershman, Brickner & Bratton Inc. Page 2 of 12 compliance with the provisions of this paragraph. City shall give subcontractor reasonable notice of intended audits 7. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Consultant shall operate as an independent contractor as to all rights and privileges granted herein and not as agent representative or employee of the City. Subject to and in accordance with the conditions and provisions of this Agreement Consultant shall have the exclusive right to control the details of its operations and activities and be solely responsible for the acts and omissions of its officers, agents, servants, employees contractors and subcontractors. Consultant acknowledges that the doctrine of respondeat supe' for shall not apply as between the City, its officers, agents, servants and employees, and Consultant, its officers, agents, employees, servants, contractors and subcontractors. Consultant further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Consultant. 8. LIABILITY AND INDEMNIFICATION. CONSULTANT SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF CONSULTANT, ITS OFFICERS, AGENTS SERVANTS OR EMPLOYEES. CONSULTANT COVENANTS AND AGREES TO, AND DOES HEREBY, INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS FOR EITHER PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO CONSULTANT'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OR MALFEASANCE OF CONSULTANT, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. 9. ASSIGNMENT AND SUBCONTRACTING. Consultant shall not assign or subcontract any of its duties, obligations or rights under this Agreement without the prior written consent of the City If the City grants consent to an assignment, the assignee shall execute a written agreement with the City and the Consultant under which the assignee agrees to be bound by the duties and obligations of Consultant under this Agreement. The Consultant and Assignee shall be jointly liable for all obligations under this Agreement prior to the assignment If the City giants consent to a subcontract, the subcontractor shall execute a written agreement with the Consultant referencing this Agreement under which the subcontractor shall agree to be bound by the duties and obligations of the Consultant under this Agreement as such duties and obligations may apply. The Consultant shall provide the City with a fully executed copy of any such subcontract. 10. INSURANCE. Consultant shall provide the City with certificate(s) of insurance documenting policies of the following minimum coverage limits that are to be in effect prior to commencement of any work pursuant to this Agreement: Professional Services Agreement — Waste Characterization Audit Gershman, Brickner & Bratton Inc. Page 3 of 12 10.1 Coverage and Limits (a) Commercial General Liability $1,000,000 Each Occurrence $2,000,000 Aggregate (b) Automobile Liability $1,000,000 $250,000 $500,000 $100,000 Each accident on a combined single limit basis or Bodily injury per person Bodily injury per occurrence Property damage Coverage shall be on any vehicle used by the Consultant, its employees, agents, representatives in the course of the providing services under this Agreement. "Any vehicle" shall be any vehicle owned, hired and non -owned (c) Worker's Compensation Statutory limits Employer s liability $100,000 Each accident/occurrence $100,000 Disease - per each employee $500,000 Disease - policy limit This coverage may be written as follows: Workers' Compensation and Employers' Liability coverage with limits consistent with statutory benefits outlined in the Texas workers Compensation Act (Art. 8308 — 1 01 et seq. Tex. Rev. Civ. Stat.) and minimum policy limits for Employers' Liability of $100,000 each accident/occurrence, $500,000 bodily injury disease policy limit and $100,000 per disease per employee (d) Professional Liability (Errors & Omissions) $1,000,000 Each Claim Limit $1,000,000 Aggregate Limit Professional Liability coverage may be provided through an endorsement to the Commercial General Liability (CGL) policy or a separate policy specific to Professional E&O. Either is acceptable if coverage meets all other requirements. Coverage shall be claims -made and maintained for the duration of the contractual agreement and for two (2) years following completion of services provided. An annual certificate of insurance shall be submitted to the City to evidence coverage. 10.2 Certificates. Certificates of Insurance evidencing that the Consultant has obtained all required insurance shall be delivered to the City prior to Consultant proceeding with any work pursuant to this Agreement. All policies except Workers' Compensation and Professional Liability shall be endorsed to name the City as an additional insured thereon, as its interests may appear. All policies shall contain a Waiver of Subrogation Professional Services Agreement — Waste Characterization Audit Gershman, Brickner & Bratton Inc. Page 4 of 12 for the benefit of the City of Fort Worth. The term City shall include its employees, officers, officials, agent, and volunteers in respect to the contracted services Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement. A minimum of thirty (30) days' notice of cancellation or reduction in limits of coverage shall be provided to the City. Ten (10) days' notice shall be acceptable in the event of non-payment of premium. Such terms shall be endorsed onto Consultant's insurance policies. Notice shall be sent to the Risk Manager, City of Fort Worth, 1000 Throckmorton, Fort Worth, Texas 76102, with copies to the City Attorney at the same address. 11. COMPLIANCE WITH LAWS. ORDINANCES. RULES AND REGULATIONS. Consultant agrees to comply with all applicable federal, state and local laws, ordinances rules and regulations. If the City notifies Consultant of any violation of such laws, ordinances, rules or regulations, Consultant shall immediately desist from and correct the violation. 12. NON-DISCRIMINATION COVENANT. Consultant, for itself, its personal representatives, assigns, subcontractors and successors in interest, as part of the consideration herein, agrees that in the performance of Consultant's duties and obligations hereunder, it shall not discriminate in the treatment or employment of any individual or group of individuals on any basis prohibited by law including Chapter 17, Article III of the Code of the City of Fort Worth. If any claim arises from an alleged violation of this non-discrimination covenant by Consultant, its personal representatives, assigns, subcontractors or successors in interest, Consultant agrees to assume such liability and to indemnify and defend the City and hold the City harmless from such claim. 13. NOTICES. Notices required pursuant to the provisions of this Agreement shall be conclusively determined to have been delivered when (1) hand -delivered to the other party, its agents employees, seivants or representatives, (2) delivered by facsimile with electronic confirmation of the transmission, or (3) received by the other party by United States Mail registered, return receipt requested, addressed as follows: To The CITY: City of Fort Worth Attn Charles Daniels 1000 Throckmorton Street Fort Worth TX 76102-6311 Facsimile (817) 392-8654 14. SOLICITATION OF EMPLOYEES. To CONSULTANT: Gershman Brickner & Bratton, Inc Harvey Gershman 8550 Arlington Boulevard, Suite 304 Fairfax, VA 22031 Facsimile: (703) 698-1306 Neither the City nor Consultant shall, during the term of this agreement and additionally for a period of one year after its termination, solicit for employment or employ, whether as employee or independent contractor, any person who is or has been employed by the other during the term of this agreement, without the prior written consent of the person's employer. Professional Services Agreement — Waste Characterization Audit Gershman, Brickner & Bratton Inc. Page 5 of 12 15. GOVERNMENTAL POWERS. It is understood and agreed that by execution of this Agreement, the City does not waive or surrender any of its governmental powers. 16. NO WAIVER. The failure of the City or Consultant to insist upon the performance of any term or provision of this Agreement or to exercise any right granted herein shall not constitute a waiver of the City's or Consultant's respective right to insist upon appropriate performance or to assert any such right on any future occasion 17. GOVERNING LAW / VENUE. This Agreement shall be construed in accordance with the internal laws of the State of Texas. If any action, whether real or asserted, at law or in equity, is brought on the basis 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 18. SEVERABILITY. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 19. FORCE MAJEURE. The City and Consultant shall exercise their best efforts to meet their respective duties and obligations as set forth in this Agreement, but shall not be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control (force majeure), including but not limited to, compliance with any government law, ordinance or regulation, acts of God, acts of the public enemy, fires, strikes, lockouts, natural disasters, wars, riots, material or labor restrictions by any governmental authority, transportation problems and/or any other similar causes. 20. HEADINGS NOT CONTROLLING. Headings and titles used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 21. REVIEW OF COUNSEL. The parties acknowledge that each party and its counsel have reviewed and revised this Agreement and that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or exhibits hereto. 22. AMENDMENTS / MODIFICATIONS / EXTENSIONS. No extension, modification or amendment of this Agreement shall be binding upon a party hereto unless such extension, modification, or amendment is set forth in a written instrument, which is executed by an authorized representative and delivered on behalf of such party. Professional Services Agreement — Waste Characterization Audit Gershman, Brickner & Bratton Inc. Page 6 of 12 23. ENTIRETY OF AGREEMENT. This Agreement including the schedule of exhibits attached hereto and any documents incorporated herein by reference contains the entire understanding and agreement between the City and Consultant, their assigns and successors in interest as to the matters contained herein Any prior or contemporaneous oral or wntten agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. 24. SIGNATURE AUTHORITY. The person signing this agreement hereby warrants that he/she has the legal authority to execute this agreement on behalf of the respective party, and that such binding authority has been granted by proper order, resolution, ordinance or other authorization of the entity. The other party is fully entitled to rely on this warranty and representation in entering into this Agreement. Remainder of Page Intentionally Blank Professional Services Agreement — Waste Characterization Audit Gershman, Brickner & Bratton Inc Page 7 of 12 EXHIBIT A STATEMENT OF WORK 1. Audit and characterize waste and recycling by cart type, waste category and weight for each residential address. Sampling and sorting will occur in a 50' x 50' space, under a covered area at the City s Southeast Landfill. Residential municipal solid waste (MSW) and recyclables from the study communities will be physically sorted into the sort categories as designated, with possible additional or substitute categories identified in the field by the Field Supervisor. The City is responsible to provide the covered space i.e. a tent. 2. Audit 80 homes in each of the five sectors of City of Fort Worth, i.e. 80 recycle carts and 80 garbage carts for each week day (Monday -Friday). The sort will take place from Monday through Friday 80 waste carts and 80 recycling carts will be sorted each day Monday through Friday, for 400 total waste carts (-20,720 lbs) and 400 total recycling carts (-04,7921bs). The group will work from 7AM to 5PM, and have a break for lunch on -site. When work begins each day, the City will have delivered 20 carts of each type and will work out a schedule to ensure GBB is not delayed due to lack of cart deliveries. Loads (the contents of one cart is identified as a load) will be tipped in the designated area. The load sample will be deposited on a sorting table designated to receive incoming materials (one location will be identified for incoming waste, and one for incoming recyclables Once the sample has been acquired and placed on a sorting table the material will be manually sorted into the prescribed component categories All bags and other containers in the sample will be opened and the contents sorted. 3. Prepare detailed report of audit in Excel spreadsheet for presentation to Code Compliance. GBB will provide detailed audit data to the City in Excel following each day's audit activities. The results of the Friday sort will be provided on the following Monday. 4. Consultant will provide the supplies and equipment necessary to conduct the audit, including but not limited to the following: Plastic garbage cans and laundry basket to hold sorted materials Permanent markers and pencils Heavy duty scale Duct tape and plastic sheeting Handmade waste sorting tables Clipboards and data sheets Large magnets Rakes shovels, brooms Digital camera Cell phone Professional Services Agreement — Waste Characterization Audit Gershman, Brickner & Bratton Inc. Page 8 of 12 Fire extinguisher Igloo containers for liquids Traffic cones and caution tape Site -specific health and safety plan for Fort Worth Work boots Eye goggles Eyewash and First Aid Station Particulate masks Sanitary wipes/Hand sanitizers Sheildtech microporous film coveralls with hood and non-skid boots Head protection as appropriate for site Cut resistant gloves The City will provide two rolloff containers — one for the recycling material and one for the waste to dispose of the sorted material 5. Set aside any identified household hazardous waste for proper disposal. The City will handle the disposal of this material. WASTE CHARACTERIZATION CATEGORIES Waste Categories for City of Fort Worth Waste and Recycling Audit (400 Garbage Carts and 400 Recycling Carts) Sorted and categorized by address and cart type in Excel Spreadsheet Categories* Compostable (food and food contaminated paper) Food Food Contaminated Paper Paper OCC Mixed Paper ONP Chip Board Yard Waste Grass clippings Small brush Glass Beverage Containers Other glass Bath & Diapers Plastic Plastic - PET Professional Services Agreement — Waste Characterization Audit Gershman, Brickner & Bratton Inc. Page 9 of 12 Plastic - HDPE Plastic - Mixed Other rigid plastic items (includes plastic toys) Textiles and other clothing items Remodel/C&D Electronics (anything with a plug) Plastic Bags and other film Aluminum Beverage Containers Aluminum Containers Aluminum Foil Ferrous Metals Steel Cans Other Ferrous Metal items Hangers Plastic Metal Cartons Paper Cups Putrescible waste Household Hazardous Waste (batteries, pesticide, paint, etc.) Other residue *Audit Categones to be mutually agreed upon between City and Selected Consultant. Professional Services Agreement — Waste Characterization Audit Gershman, Brickner & Bratton Inc. Page 10 of 12 EXHIBIT B PAYMENT SCHEDULE GBB's revised pricing, for the waste audit only (waste sampling and sorting) is $37,500.00. GBB will complete the Scope of Work on a time and expenses basis not to exceed the above amount. For additional tasks requested and agreed upon beyond this original scope, GBB will bill on a time and expenses basis according to the following rate schedule. POSITION IS PER HOUR) Executive Vice President Sr. Vice President Vice President Project Engineer/Sr. Consultant/Support Director Consultant II/Engineer II/Contract Administrator Consultant I/Engineer I Administrative Support (hi EXPENSES Personal Car/Company Car Local Travel Expenses (tolls, parking) Roam and Board Airfare Car Rental Duplicating (black and white) Duplicating (color) Long Distance Telephone Graphics and Art Messenger and Delivery Service Subcontractors Facsimile Communications Outbound 222.50 207.00 176.00 114.00 93.50 72.50 55.50 CHARGE Current IRS Rates per mile" (or $84.75/day + fuel -whichever is Tess) As Incurred As Incurred Coach Class, Discount Fares When Available Discount Rate $.15 per Copy $.25 per Copy As Incurred As Incurred As Incurred As Incurred $0.50 per page r" Effective January 1, 2014 through December 31, 2014. Subject to January 1" annual increase based on CPI. r2' For payments not received within 30 days of invoking date, interest charge of 1.00 % per month will be applied :': A Fee of 10 percent applied to expenses, including subcontractors, {": Subject to adjustment per IRS guidelines (or $84,75%day + fuel -whichever is less), GBB's timeline for the waste audit only (waste sampling and sorting) is as follows: Activity Kick -Off Meeting Waste Sort All Final Data Submitted to City (data from final day of sort and any other pertinent information) Date February 24, 2014 March 18 — March 22, 2014 March 24, 2014 GBB will submit a single invoice for these services upon completion of the work. Professional Sei vices Agreement — Waste Characterization Audit Gershman, Brickner & Bratton Inc. Page 11 of 12 SIGNATURE PAGE PROFESSIONAL SERVICES AGREEMENT WASTE CHARACTERIZATION AUDIT IN WITNESS THEREOF, the parties hereto have made and executed this Agreement in multiple originals on the dates written below, in Fort Worth, Tarrant County, Texas. CITY OF FORT WORTH: By: Date: Charles W. Daniels ssistant City Manager ,02. 24. /4- ATTES By: Mary J. Ka . er City Secre r. ry APPROVED AS TO FORM AND LEGALITY: By: Arthur N. Bashor Assistant City Attorney GERSIIMAN, BRICKNER & BRATTON, INC. B Qt-l•-•---t _age-t 11 , "Harve9s Villiam Gershrnati President WITNESS: $ OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX • Professional Services Agreement — Waste Characterization Audit Gershman, Brickner & Bratton Inc. Page 12 of 12