HomeMy WebLinkAboutContract 60652Professional Services Agreement – Burns & McDonnell Page 1 of 24
PROFESSIONALSERVICESAGREEMENT
_____________________________________________________________________________
This PROFESSIONAL SERVICES AGREEMENT (“Agreement”) is made and entered into by
and between the CITY OF FORT WORTH (“City”), a Texas home rule municipal corporation, acting by
and through its duly authorized Assistant City Manager, and Burns & McDonnell Engineering Company,
Inc. (“Vendor or Consultant”), a Missouri Corporation and acting by and through its duly authorized
representative, each individually referred to as a “party” and collectively referred to as the “parties.”
AGREEMENT DOCUMENTS:
The Agreement documents shall include the following:
1.This Professional Services Agreement;
2.Exhibit A – Scope of Services or Goods;
3.Exhibit B – Price Schedule;
4.Exhibit C – Chapter 252 Exemption
5.Exhibit D – Verification of Signature Authority Form.
6.Exhibit E – Conflict of Interest Questionnaire.
Exhibits A, B, C, D, and E which are attached hereto and incorporated herein, are made a part of this
Agreement for all purposes. In the event of any conflict between the terms and conditions of Exhibits A, B,
C, D, or E and the terms and conditions set forth in the body of this Agreement, the terms and conditions
of this Agreement shall control.
1.Scope of Services. Consultant will evaluate the following: City’s solid waste contracts,
cost of service model, landfill environmental fee, long term disposal strategy, landfill gas project, diversion
programs, and recycling programs. Burns & McDonnell will also provide ad hoc financial and operational
reviews in support of the Environmental Department and the FW Lab. Consultant’s scope of services
(“Services”), are set forth in more detail in Exhibit “A,” and attached hereto and incorporated herein for all
purposes.
2.Term. This Agreement begins on the date the agreement is signed by City of Fort Worth
Assistant City Manager (“Effective Date”) and expires on December 31, 2025 (“Expiration Date”), unless
terminated earlier in accordance with this Agreement (“Initial Term”). City will have the option, in its sole
discretion, to renew this Agreement under the same terms and conditions, for up to four (4) one-year
renewal option(s) (each a “Renewal Term”).
3.Compensation. City will pay Consultant in accordance with the provisions of this
Agreement, including Exhibit “B,” which is attached hereto and incorporated herein for all purposes. Total
compensation under this Agreement will not exceed Six Hundred Thousand Dollars ($600,000.00) unless
otherwise mutually agreed in writing by the Parties. Consultant will not perform any additional services
or bill for expenses incurred for City not specified by this Agreement unless City requests and approves in
writing the additional costs for such services. City will not be liable for any additional expenses of
Professional Services Agreement – Burns & McDonnell Page 2 of 24
Consultant not specified by this Agreement unless City first approves such expenses in writing.
4. Termination.
4.1. Written Notice. 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 City in any fiscal period for any payments due hereunder, City will notify
Consultant of such occurrence and this Agreement will terminate on the last day of the fiscal period
for which appropriations were received without penalty or expense to City of any kind whatsoever,
except as to the portions of the payments herein agreed upon for which funds have been
appropriated.
4.3 Duties and Obligations of the Parties. In the event that this Agreement is
terminated prior to the Expiration Date, City will pay Consultant for services actually rendered up
to the effective date of termination and Consultant will continue to provide City with services
requested by City and in accordance with this Agreement up to the effective date of termination
which, unless otherwise agreed to by the parties, will be thirty (30) days following the written
notice of termination.
Upon termination of this Agreement for any reason, and upon payment in full for services
performed, Consultant shall deliver to City all data, documents, drawings, reports, estimates,
summaries and such other information and materials, (a) that Consultant was obligated to supply
to City under the terms of this Agreement, whether completed or in process, and (b) that Consultant
received from City before or during the performance of the services, except that Consultant may
retain one record copy of such deliverables and information for archival purposes (“Project
Information”). In the event of termination prior to completion of any documents, City releases
Consultant from any liability for such incomplete documents and waives all claims against
Consultant on account of City’s reliance upon such incomplete documents.
5. Disclosure of Conflicts and Confidential Information.
5.1 Disclosure of Conflicts. Consultant hereby represents to 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 to immediately make full disclosure to
City in writing.
5.2 Confidential Information. Consultant, for itself and its officers, agents and
employees, agrees that it will treat all information provided to it by City (“City Information”) as
confidential and will not disclose any such information to a third party without the prior written
approval of City, except to the extent that such disclosure is required by applicable law or court
order and then only after prior notice to and consultation with the City.
5.3 Public Information Act. City is a government entity under the laws of the State of
Texas and all documents held or maintained by City are subject to disclosure under the Texas Public
Information Act. In the event there is a request for information marked Confidential or Proprietary,
City will promptly notify Consultant. It will be the responsibility of Consultant to submit reasons
objecting to disclosure. A determination on whether such reasons are sufficient will not be decided
Professional Services Agreement – Burns & McDonnell Page 3 of 24
by City, but by the Office of the Attorney General of the State of Texas or by a court of competent
jurisdiction.
5.4 Unauthorized Access. Consultant must store and maintain City Information in a
secure manner and will not allow unauthorized users to access, modify, delete or otherwise corrupt
City Information in any way. Consultant must notify City immediately if the security or integrity
of any City Information has been compromised or is believed to have been compromised, in which
event, Consultant will, in good faith, use all commercially reasonable efforts to cooperate with City
in identifying what information has been accessed by unauthorized means and will fully cooperate
with City to protect such City Information from further unauthorized disclosure.
6.Right to Audit. Consultant agrees that City will, until the expiration of three (3) years
after final payment under this Agreement, or the final conclusion of any audit commenced during the said
three years, have access to and the right to examine at reasonable times any directly pertinent books,
documents, papers and records, including, but not limited to, all electronic records, of Consultant involving
transactions relating to this Agreement at no additional cost to City. Consultant agrees that City will have
access during normal working hours to all necessary Consultant facilities and will be provided adequate
and appropriate work space in order to conduct audits in compliance with the provisions of this section.
City will give Consultant no less than seven days’ advance notice of intended audits.
7.Independent Contractor. It is expressly understood and agreed that Consultant will
operate as an independent contractor as to all rights and privileges and work performed under this
Agreement, and not as agent, representative or employee of City. Subject to and in accordance with the
conditions and provisions of this Agreement, Consultant will 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, Consultants, and subcontractors. Consultant acknowledges that the doctrine of
respondeat superior will not apply as between City, its officers, agents, servants and employees, and
Consultant, its officers, agents, employees, servants, contractors, and subcontractors. Consultant further
agrees that nothing herein will be construed as the creation of a partnership or joint enterprise between City
and Consultant. It is further understood that City will in no way be considered a Co-employer or a Joint
employer of Consultant or any officers, agents, servants, employees, contractors, or subcontractors. Neither
Consultant, nor any officers, agents, servants, employees, contractors, or subcontractors of Consultant will
be entitled to any employment benefits from City. Consultant will be responsible and liable for any and all
payment and reporting of income taxes on behalf of itself, and any of its officers, agents, servants,
employees, contractors, or contractors.
8.Liability and Indemnification.
8.1 GENERAL - CONSULTANT SHALL RELEASE, DEFEND,
INDEMNIFY AND HOLD HARMLESS CITY AND ITS OFFICERS, AGENTS AND
EMPLOYEES FROM AND AGAINST ALL DAMAGES, CLAIMS, LOSSES,
DEMANDS, SUITS, JUDGMENTS AND COSTS, INCLUDING REASONABLE
ATTORNEY'S FEES AND EXPENSES, FOR PERSONAL INJURIES (INCLUDING
DEATH) AND THIRD-PARTY PROPERTY DAMAGE TO THE EXTENT CAUSED
BY THE NEGLIGENT ACT OR OMISSION OF CONSULTANT, ITS OFFICERS,
AGENTS, EMPLOYEES, OR SUBCONTRACTORS IN THE PERFORMANCE OF
SERVICES PROVIDED UNDER THIS AGREEMENT. THE CONSULTANT SHALL
NOT BE OBLIGATED OR LIABLE TO THE CITY FOR ANY CLAIM ARISING IN
CONNECTION WITH THIS AGREEMENT EXCEPT ITS OWN NEGLIGENCE
Professional Services Agreement – Burns & McDonnell Page 4 of 24
THAT IS THE FAULT OF THE CONSULTANT, AND/OR ITS AGENTS,
EMPLOYEES, OR SUBCONTRACTORS, OR OTHERS FOR WHOM CONSULTANT
IS LEGALLY RESPONSIBLE.
NOTWITHSTANDING THE FOREGOING, CONSULTANT AGREES, TO
THE FULLEST EXTENT PERMITTED BY LAW, TO INDEMNIFY AND HOLD
HARMLESS CITY AND ITS OFFICERS, AGENTS AND EMPLOYEES AGAINST
COSTS, DAMAGES, OR LOSSES, INCLUDING REASONABLE ATTORNEYS’
FEES AND EXPENSES, RESULTING FROM CLAIMS BY THIRD PARTIES FOR
PERSONAL INJURIES (INCLUDING DEATH) OR PROPERTY DAMAGE TO THE
EXTENT CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OF
CONSULTANT, ITS OFFICERS, AGENTS, EMPLOYEES, OR SUBCONTRACTORS
IN THE PERFORMANCE OF PROFESSIONAL SERVICES UNDER THIS
AGREEMENT. CONSULTANT SHALL NOT BE OBLIGATED TO DEFEND OR
INDEMNIFY CITY AND ITS OFFICERS, AGENTS AND EMPLOYEES FOR THEIR
RESPECTIVE NEGLIGENCE OR WILLFUL MISCONDUCT.
8.2 INTELLECTUAL PROPERTY INDEMNIFICATION – CONSULTANT
AGREES TO DEFEND, SETTLE, OR PAY, AT ITS OWN COST AND EXPENSE,
ANY CLAIM OR ACTION AGAINST CITY FOR INFRINGEMENT OF ANY
PATENT, COPYRIGHT, TRADE MARK, TRADE SECRET, OR SIMILAR
PROPERTY RIGHT ARISING FROM CITY’S USE OF THE SOFTWARE AND/OR
DOCUMENTATION IN ACCORDANCE WITH THIS AGREEMENT, IT BEING
UNDERSTOOD THAT THIS AGREEMENT TO DEFEND, SETTLE OR PAY WILL
NOT APPLY IF CITY MODIFIES OR MISUSES THE SOFTWARE AND/OR
DOCUMENTATION. SO LONG AS CONSULTANT BEARS THE COST AND
EXPENSE OF PAYMENT FOR CLAIMS OR ACTIONS AGAINST CITY PURSUANT
TO THIS SECTION, CONSULTANT WILL HAVE THE RIGHT TO CONDUCT THE
DEFENSE OF ANY SUCH CLAIM OR ACTION AND ALL NEGOTIATIONS FOR
ITS SETTLEMENT OR COMPROMISE AND TO SETTLE OR COMPROMISE ANY
SUCH CLAIM; HOWEVER, CITY WILL HAVE THE RIGHT TO FULLY
PARTICIPATE IN ANY AND ALL SUCH SETTLEMENT, NEGOTIATIONS, OR
LAWSUIT AS NECESSARY TO PROTECT CITY’S INTEREST, AND CITY AGREES
TO COOPERATE WITH CONSULTANT IN DOING SO. IN THE EVENT CITY, FOR
WHATEVER REASON, ASSUMES THE RESPONSIBILITY FOR PAYMENT OF
COSTS AND EXPENSES FOR ANY CLAIM OR ACTION BROUGHT AGAINST
CITY FOR INFRINGEMENT ARISING UNDER THIS AGREEMENT, CITY WILL
HAVE THE SOLE RIGHT TO CONDUCT THE DEFENSE OF ANY SUCH CLAIM
OR ACTION AND ALL NEGOTIATIONS FOR ITS SETTLEMENT OR
COMPROMISE AND TO SETTLE OR COMPROMISE ANY SUCH CLAIM;
HOWEVER, CONSULTANT WILL FULLY PARTICIPATE AND COOPERATE
WITH CITY IN DEFENSE OF SUCH CLAIM OR ACTION. CITY AGREES TO GIVE
CONSULTANT TIMELY WRITTEN NOTICE OF ANY SUCH CLAIM OR ACTION,
WITH COPIES OF ALL PAPERS CITY MAY RECEIVE RELATING THERETO.
NOTWITHSTANDING THE FOREGOING, CITY’S ASSUMPTION OF PAYMENT
OF COSTS OR EXPENSES WILL NOT ELIMINATE CONSULTANT’S DUTY TO
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INDEMNIFY CITY UNDER THIS AGREEMENT. IF THE SOFTWARE AND/OR
DOCUMENTATION OR ANY PART THEREOF IS HELD TO INFRINGE AND THE
USE THEREOF IS ENJOINED OR RESTRAINED OR, IF AS A RESULT OF A
SETTLEMENT OR COMPROMISE, SUCH USE IS MATERIALLY ADVERSELY
RESTRICTED, CONSULTANT WILL, AT ITS OWN EXPENSE AND AS CITY'S
SOLE REMEDY, EITHER: (A) PROCURE FOR CITY THE RIGHT TO CONTINUE
TO USE THE SOFTWARE AND/OR DOCUMENTATION; OR (B) MODIFY THE
SOFTWARE AND/OR DOCUMENTATION TO MAKE IT NON-INFRINGING,
PROVIDED THAT SUCH MODIFICATION DOES NOT MATERIALLY
ADVERSELY AFFECT CITY'S AUTHORIZED USE OF THE SOFTWARE AND/OR
DOCUMENTATION; OR (C) REPLACE THE SOFTWARE AND/OR
DOCUMENTATION WITH EQUALLY SUITABLE, COMPATIBLE, AND
FUNCTIONALLY EQUIVALENT NON-INFRINGING SOFTWARE AND/OR
DOCUMENTATION AT NO ADDITIONAL CHARGE TO CITY; OR (D) IF NONE
OF THE FOREGOING ALTERNATIVES IS REASONABLY AVAILABLE TO
CONSULTANT TERMINATE THIS AGREEMENT, AND REFUND ALL AMOUNTS
PAID TO CONSULTANT BY CITY, SUBSEQUENT TO WHICH TERMINATION
CITY MAY SEEK ANY AND ALL REMEDIES AVAILABLE TO CITY UNDER LAW.
8.3 LIMITATION OF LIABILITY. NEITHER THE CITY NOR
CONSULTANT SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT,
SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING,
WITHOUT LIMITATION, LOSS OF PROFITS OR REVENUE, LOSS OF
PRODUCTION, COSTS OF CAPITAL NON-OPERATION OR INCREASED
EXPENSE OF OPERATION OF OTHER EQUIPMENT OR SYSTEMS, INJURED
REPUTATION, COSTS OF SUBSTITUTE EQUIPMENT, FACILITIES OR
SERVICES, DOWNTIME COSTS, OR CLAIMS BY CUSTOMERS, WHETHER
LIABILITY IS BASED ON CONTRACT, WARRANTY, NEGLIGENCE, STRICT
LIABILITY OR OTHERWISE. SUCH WAIVER SHALL NOT INCLUDE PENALTIES
ENFORCED BY GOVERNMENTAL OR REGULATORY AGENCIES WITH
JURISDICTION OVER THESE PARTIES AND THIS CONTRACT, SUCH AS THE
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY (TCEQ), TO THE
EXTENT CAUSED BY CONSULTANT’S NEGLIGENT PERFORMANCE OF
SERVICES UNDER THIS AGREEMENT.
TO THE FULLEST EXTENT PERMITTED BY LAW, AND
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE
TOTAL LIABILITY, IN THE AGGREGATE, OF CONSULTANT, ITS OFFICERS,
DIRECTORS, EMPLOYEES, AGENTS, AND SUBCONTRACTORS, OR ANY OF
THEM, TO THE CITY AND ANYONE CLAIMING BY, THROUGH OR UNDER THE
CITY, FOR ANY AND ALL CLAIMS, LOSSES, LIABILITIES, COSTS OR DAMAGES
WHATSOEVER ARISING OUT OF, RESULTING FROM, OR IN ANY WAY
RELATED TO THE SERVICES OR THIS AGREEMENT FROM ANY CAUSE
INCLUDING, BUT NOT LIMITED TO, THE NEGLIGENCE, PROFESSIONAL
ERRORS OR OMISSIONS, STRICT LIABILITY, BREACH OF CONTRACT, OR
WARRANTY (EXPRESS OR IMPLIED) OF CONSULTANT, ITS OFFICERS,
Professional Services Agreement – Burns & McDonnell Page 6 of 24
DIRECTORS, EMPLOYEES, AGENTS OR SUBCONTRACTORS, OR ANY OF
THEM, SHALL NOT EXCEED ONE MILLION DOLLARS ($1,000,000). THE
PARTIES AGREE THAT SPECIFIC CONSIDERATION HAS BEEN GIVEN BY THE
CONSULTANT FOR THIS LIMITATION AND THAT IT IS DEEMED ADEQUATE.
9.Assignment and Subcontracting.
9.1 Assignment. Consultant will not assign or subcontract any of its duties, obligations
or rights under this Agreement without the prior written consent of City. If City grants consent to
an assignment, the assignee will execute a written agreement with City and Consultant under which
the assignee agrees to be bound by the duties and obligations of Consultant under this Agreement.
Consultant will be liable for all obligations of Consultant under this Agreement prior to the effective
date of the assignment and Consultant shall have no further liability or obligations under the
assigned portion of the Agreement.
9.2 Subcontract. If City grants consent to a subcontract, the subcontractor will execute
a written agreement with Consultant referencing this Agreement under which subcontractor agrees
to be bound by the duties and obligations of Consultant under this Agreement as such duties and
obligations may apply. Consultant must provide City with a fully executed copy of any such
subcontract.
10.Insurance. Consultant must provide City with certificate(s) of insurance documenting
policies of the following types and minimum coverage limits that are to be in effect prior to commencement
of any Services pursuant to this Agreement:
10.1 Coverage and Limits
(a)Commercial General Liability:
$1,000,000 - Each Occurrence
$2,000,000 - Aggregate
(b) Automobile Liability:
$1,000,000 - Each occurrence on a combined single limit basis
Coverage will be on any vehicle used by Consultant, or its employees, agents, or
representatives in the course of providing Services under this Agreement. “Any
vehicle” will be any vehicle owned, hired and non-owned.
(c) Worker’s Compensation:
Statutory limits according to the Texas Workers’ Compensation Act or any other
state workers’ compensation laws where the Services are being performed.
Employers’ liability
$100,000 - Bodily Injury by accident; each accident/occurrence
$100,000 - Bodily Injury by disease; each employee
$500,000 - Bodily Injury by disease; policy limit
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(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 must be claims-made, and maintained for the duration of the contractual
agreement and for two (2) years following completion of Consultants Services
provided. An annual certificate of insurance must be submitted to City to evidence
coverage.
10.2 General Requirements
(a) The commercial general liability and automobile liability policies must
name City as an additional insured thereon, as its interests may appear. The term
City includes its employees, officers, officials, agents, and volunteers in respect to
the contracted services.
(b) The workers’ compensation policy must include a Waiver of Subrogation
(Right of Recovery) in favor of City.
(c) A minimum of Thirty (30) days’ notice of cancellation or reduction in
limits of coverage must be provided to City. Ten (10) days’ notice will be
acceptable in the event of non-payment of premium. Notice must be sent to the
Risk Manager, City of Fort Worth, 200 Texas Street, Fort Worth, Texas 76102,
with copies to the Fort Worth City Attorney at the same address.
(d) The insurers for all policies must be licensed and/or approved to do
business in the State of Texas. All insurers must have a minimum rating of A- VII
in the current A.M. Best Key Rating Guide, or have reasonably equivalent financial
strength and solvency to the satisfaction of Risk Management. If the rating is
below that required, written approval of Risk Management is required.
(e) Any failure on the part of City to request required insurance
documentation will not constitute a waiver of the insurance requirement.
(f) Certificates of Insurance evidencing that Consultant has obtained all
required insurance will be delivered to the City prior to Consultant proceeding with
any work pursuant to this Agreement.
11. Compliance with Laws, Ordinances, Rules and Regulations. Consultant agrees that in
the performance of its obligations hereunder, it will comply with all applicable federal, state and local laws,
ordinances, rules and regulations, and that any work Consultant produces in connection with this
Agreement will also comply with all applicable federal, state and local laws, ordinances, rules and
regulations having jurisdiction over these Parties or the services provided under this Agreement. If City
notifies Consultant of any violation of such laws, ordinances, rules or regulations, Consultant must
immediately desist from and correct the violation.
Professional Services Agreement – Burns & McDonnell Page 8 of 24
12.Non-Discrimination Covenant. Consultant, for itself, its personal representatives,
assigns, contractors, subcontractors, and successors in interest, as part of the consideration herein, agrees
that in the performance of Consultant’s duties and obligations hereunder, it will not discriminate in the
treatment or employment of any individual or group of individuals on any basis prohibited by law. IF ANY
CLAIM ARISES FROM AN ALLEGED VIOLATION OF THIS NON-DISCRIMINATION
COVENANT BY CONSULTANT, ITS PERSONAL REPRESENTATIVES, ASSIGNS,
CONTRACTORS, SUBCONTRACTORS, OR SUCCESSORS IN INTEREST, CONSULTANT
AGREES TO ASSUME SUCH LIABILITY AND TO INDEMNIFY AND DEFEND CITY AND
HOLD CITY HARMLESSTO THE EXTENT CAUSED BY CONSULTANT’S VIOLATION OF
THIS SECTION 12.
13.Notices. Notices required pursuant to the provisions of this Agreement will be
conclusively determined to have been delivered when (1) hand-delivered to the other party, its agents,
employees, servants 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 CITY:
City of Fort Worth
Attn: Assistant City Manager
200 Texas Street
Fort Worth, TX 76102-6314
Facsimile: (817) 392-8654
With copy to Fort Worth City Attorney’s Office at
same address
To CONSULTANT:
Burns & McDonnell Engineering Company, Inc.
Attn: Scott Pasternak
6200 Bridge Point Parkway
Suite 400 Austin, TX 78730
Facsimile: (512) 329-2707
14.Solicitation of Employees. Neither City nor Consultant will, 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.
Notwithstanding the foregoing, this provision will not apply to an employee of either party who responds
to a general solicitation of advertisement of employment by either party.
15.Governmental Powers. It is understood and agreed that by execution of this Agreement,
City does not waive or surrender any of its governmental powers or immunities.
16.No Waiver. The failure of City or Consultant to insist upon the performance of any term
or provision of this Agreement or to exercise any right granted herein does not constitute a waiver of 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 will be construed in accordance with the laws
of the State of Texas. If any action, whether real or asserted, at law or in equity, is brought pursuant to this
Agreement, venue for such action will lie in state courts located in Tarrant County, Texas or the United
States District Court for the Northern District of Texas, Fort Worth Division.
Professional Services Agreement – Burns & McDonnell Page 9 of 24
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 will not in any way be
affected or impaired.
19. Force Majeure. City and Consultant will exercise their best efforts to meet their respective
duties and obligations as set forth in this Agreement, but will not be held liable for any delay or omission
in performance due to force majeure or other causes beyond their reasonable control, including, but not
limited to, compliance with any government law, ordinance, or regulation; acts of God or nature; severe
weather events; earthquake; flood; unavoidable casualty; acts of the public enemy; rebellion; fires; strikes;
labor disputes and disturbances; boycotts; picketing; lockouts; natural disasters; wars (declared or
undeclared); riots; epidemics or pandemics; government action or inaction; orders of government (local,
state, federal) agencies or authorities; material or labor restrictions; transportation problems; restraints or
prohibitions by any court, board, department, commission, or agency of the United States or of any States;
civil disturbances; other national or regional emergencies; or any other similar cause not enumerated herein
but which is beyond the reasonable control of the Party whose performance is affected (collectively, “Force
Majeure Event”). The performance of any such obligation is suspended during the period of, and only to
the extent of, such prevention or hindrance, provided the affected Party provides notice of the Force Majeure
Event, and an explanation as to how it prevents or hinders the Party’s performance, as soon as reasonably
possible after the occurrence of the Force Majeure Event. The notice required by this section must be
addressed and delivered in accordance with Section 13 of this Agreement. Nothing in this Article shall be
construed to relieve either Party of its obligation to pay monies due or to fulfill any unaffected obligations
required under the Contract.
20. Headings not Controlling. Headings and titles used in this Agreement are for reference
purposes only, will not be deemed a part of this Agreement, and are not intended to define or limit the scope
of any provision 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 will not be employed in the interpretation of this
Agreement or Exhibits A, B, and C.
22. Amendments / Modifications / Extensions. No amendment, modification, or extension
of this Agreement will be binding upon a party hereto unless set forth in a written instrument, which is
executed by an authorized representative of each party.
23. Counterparts. This Agreement may be executed in one or more counterparts and each
counterpart will, for all purposes, be deemed an original, but all such counterparts will together constitute
one and the same instrument.
24. Warranty of Services. Consultant warrants that it will exercise reasonable skill, care and
diligence in the performance of its services and will carry out its responsibilities in accordance with
customarily accepted professional practices and applicable laws. If Consultant fails to meet the foregoing
standard, Consultant will perform at its own cost, the professional services necessary to correct errors and
omissions reported to Consultant in writing within one year from the completion of Consultant’s services.
Consultant does not make any other express or implied warranties or representations of any kind whatsoever
relating to this Agreement or the Services, including any implied warranty of merchantability or fitness for
a particular purpose. THE REMEDIES OUTLINED IN THIS SECTION 24 INCLUDE
CONSULTANT’S SOLE AND EXLUSIVE OBLIGATIONS FOR CONSULTANT’S DEFECTIVE
SERVICES.
Professional Services Agreement – Burns & McDonnell Page 10 of 24
25.Immigration Nationality Act. Consultant must verify the identity and employment
eligibility of its employees who perform work under this Agreement, including completing the Employment
Eligibility Verification Form (I-9). Upon request by City, Consultant will provide City with electronic
copies of all I-9 forms and supporting eligibility documentation for each employee who performs work
under this Agreement. Consultant must adhere to all Federal and State laws as well as establish appropriate
procedures and controls so that no services will be performed by any Consultant employee who is not
legally eligible to perform such services. CONSULTANT WILL INDEMNIFY CITY AND HOLD
CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO
VIOLATIONS OF THIS PARAGRAPH BY CONSULTANT, CONSULTANT’S EMPLOYEES,
CONTRACTORS, SUBCONTRACTORS, OR AGENTS. Unless Contractor immediately rectifies any
identified violation of this Article 25 through compliance, City, upon written notice to Consultant, will have
the right to immediately terminate this Agreement for violations of this provision by Consultant.
26.Ownership of Work Product. City will be the sole and exclusive owner of all reports,
work papers, procedures, guides, and documentation that are created, published, displayed, or produced in
conjunction with the services provided under this Agreement (collectively, “Work Product”). Further, City
will be the sole and exclusive owner of all copyright, patent, trademark, trade secret and other proprietary
rights in and to the Work Product. Ownership of the Work Product will inure to the benefit of City from
the date of conception, creation or fixation of the Work Product in a tangible medium of expression
(whichever occurs first). Each copyrightable aspect of the Work Product will be considered a "work-made-
for-hire" within the meaning of the Copyright Act of 1976, as amended. If and to the extent such Work
Product, or any part thereof, is not considered a "work-made-for-hire" within the meaning of the Copyright
Act of 1976, as amended, Consultant hereby expressly assigns to City all exclusive right, title and interest
in and to the Work Product, and all copies thereof, and in and to the copyright, patent, trademark, trade
secret, and all other proprietary rights therein, that City may have or obtain, without further consideration,
free from any claim, lien for balance due, or rights of retention thereto on the part of City.
27.Signature Authority. The persons signing this Agreement hereby represent that they have
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. This
Agreement and any amendment hereto, may be executed by any authorized representative of Consultant.
Each party is fully entitled to rely on these representations in entering into this Agreement or any
amendment hereto.
28.Change in Company Name or Ownership. Consultant must notify City’s Purchasing
Manager, in writing, of a company name, ownership, or address change for the purpose of maintaining
updated City records. The president of Consultant or an authorized official must sign the letter. A letter
indicating changes in a company name or ownership must be accompanied with supporting legal
documentation such as an updated W-9, documents filed with the state indicating such change, copy of the
board of director’s resolution approving the action, or an executed merger or acquisition agreement. Failure
to provide the specified documentation so may adversely impact future invoice payments.
29.No Boycott of Israel. If Consultant has fewer than 10 employees or this Agreement is
for less than $100,000, this section does not apply. Consultant acknowledges that in accordance with
Chapter 2271 of the Texas Government Code, the City is prohibited from entering into a contract with a
company for goods or services unless the contract contains a written verification from the company that it:
(1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. The terms
“boycott Israel” and “company” has the meanings ascribed to those terms in Section 2271 of the Texas
Government Code. By signing this Agreement, Consultant certifies that Consultant’s signature
Professional Services Agreement – Burns & McDonnell Page 11 of 24
provides written verification to the City that Consultant: (1) does not boycott Israel; and (2) will not
boycott Israel during the term of the Agreement.
30.Prohibition on Boycotting Energy Companies. Consultant acknowledges that in
accordance with Chapter 2276 of the Texas Government Code, the City is prohibited from entering into a
contract for goods or services that has a value of $100,000 or more that is to be paid wholly or partly from
public funds of the City with a company with 10 or more full-time employees unless the contract contains
a written verification from the company that it: (1) does not boycott energy companies; and (2) will not
boycott energy companies during the term of the contract. To the extent that Chapter 2276 of the
Government Code is applicable to this Agreement, by signing this Agreement, Consultant certifies that
Consultant’s signature provides written verification to the City that Consultant: (1) does not boycott energy
companies; and (2) will not boycott energy companies during the term of this Agreement.
31.Prohibition on Discrimination Against Firearm and Ammunition Industries.
Consultant acknowledges that except as otherwise provided by Chapter 2274 of the Texas Government
Code, the City is prohibited from entering into a contract for goods or services that has a value of $100,000
or more that is to be paid wholly or partly from public funds of the City with a company with 10 or more
full-time employees unless the contract contains a written verification from the company that it: (1) does
not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade
association; and (2) will not discriminate during the term of the contract against a firearm entity or firearm
trade association. To the extent that Chapter 2274 of the Government Code is applicable to this Agreement,
by signing this Agreement, Consultant certifies that Consultant’s signature provides written verification to
the City that Consultant: (1) does not have a practice, policy, guidance, or directive that discriminates
against a firearm entity or firearm trade association; and (2) will not discriminate against a firearm entity
or firearm trade association during the term of this Agreement.
32.Electronic Signatures. This Agreement may be executed by electronic signature, which
will be considered as an original signature for all purposes and have the same force and effect as an original
signature. For these purposes, “electronic signature” means electronically scanned and transmitted versions
(e.g. via pdf file or facsimile transmission) of an original signature, or signatures electronically inserted via
software such as Adobe Sign.
33.Entirety of Agreement. This Agreement, including all attachments and exhibits, contains
the entire understanding and agreement between City and Consultant, their assigns and successors in
interest, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is
hereby declared null and void to the extent in conflict with any provision of this Agreement.
[SIGNATURE PAGE TO FOLLOW]
Professional Services Agreement – Burns & McDonnell Page 12 of 24
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiples.
CITY OF FORT WORTH:
By: ___________________________
Name: Valerie Washington
Title: Assistant City Manager
Date: _____________, 20__
APPROVAL RECOMMENDED:
By: ______________________________
Name: James Keezell
Title: Assistant Director Solid Waste
ATTEST:
By: ______________________________
Name: Jannette Goodall
Title: City Secretary
CONTRACT COMPLIANCE MANAGER:
By signing I acknowledge that I am the person
responsible for the monitoring and administration of
this contract, including ensuring all performance and
reporting requirements.
By: ______________________________
Name: Christian Harper
Title: Contract Service Administrator
APPROVED AS TO FORM AND LEGALITY:
By: ______________________________
Name: Christopher Austria
Title: Assistant City Attorney
CONTRACT AUTHORIZATION:
M&C: 23-0926
Form 1295: 2023-1059959
CONSULTANT:
Burns & McDonnell Engineering Company, Inc.
By:
Name: Mark Knaack
Title: Regional Global Practice Manager
Date: _____________, 20__ 23December 15
City Secretary Contract No. _____________
Professional Services Agreement Page 13 of 24
EXHIBIT A
SCOPE OF SERVICES
Scope of Services and Schedule:
Burns & McDonnell will provide the following services for the City of Fort Worth (City) with a range of
operational, contractual, financial, planning and engineering solid waste and resource recovery consulting
services. This proposal includes our scope of work and fee.
SCOPE OF WORK
The City may request consulting services from Burns & McDonnell, which may include but not be
limited to the following:
Updating cost of service and financial analysis
Long-term disposal planning
Landfill gas to energy project analysis, strategy and planning
Financial fee structures and market analysis (e.g. residential, commercial, landfill, landfill gas)
Solid waste and resource recovery planning
Solid waste and recycling characterization and auditing
Public involvement and stakeholder engagement services
On-site meetings with the City and/or contractor(s)
City manager and City Council meetings and/or presentations
Assistance with contractual issues, including financial analysis, operational analysis, terms,
duration and reporting
Assistance with procurement including RFP development, proposal evaluations and negotiations
Ad hoc reporting
City Secretary Contract No. _____________
Professional Services Agreement Page 14 of 24
EXHIBIT B
PAYMENT SCHEDULE
Compensation:
The basis of compensation for the above Services shall be:
Hourly Rate per CONSULTANT's Rate Sheet, attached hereto, and based on estimates included in the
following tables. Hours billed in calendar year 2023 to be billed in accordance with 2023 rate sheet, hours
billed in calendar year 2024 to be billed in accordance with 2024 rate sheet.
Professional Services Agreement Page 15 of 24
Professional Services Agreement Page 16 of 24
EXHIBIT C
CHAPTER 252 EXEMPTION FORM
(Form has 6 pages)
Professional Services Agreement Page 17 of 24
Professional Services Agreement Page 18 of 24
Professional Services Agreement Page 19 of 24
Professional Services Agreement Page 20 of 24
Professional Services Agreement Page 21 of 24
Professional Services Agreement Page 22 of 24
Professional Services Agreement Page 23 of 24
Professional Services Agreement Page 24 of 24
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