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HomeMy WebLinkAbout22- Amendment 1 - PSA with Burns & McDonnell - Rate Study of the Solid Waste Operations First Amendment to Professional Services Agreement for Solid Waste Cost of Service and Rate Design FY 2023 – FY 2024 Page 1 of 2 FIRST AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT THIS FIRST AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT FOR solid waste cost of service and rate study dated October 12, 2021 (the “Agreement”) is made and entered into this _____ day of ____________, 202__, by and between the CITY OF BOZEMAN, MONTANA, a self governing municipal corporation organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as “City,” and Burns & McDonnell Engineering Company, Inc, hereinafter referred to as “Contractor.” In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree to amend the Agreement as follows: 1. Extension of Term. Section 31 of the Agreement is extended and will terminate upon completion of the scope of services of Exhibit A. 2. Agreement still valid. All remaining terms and provisions of the agreement remain valid. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** DocuSign Envelope ID: 2ABD3810-3FB6-4A30-BD84-FBB88EE29A1A 220December First Amendment to Professional Services Agreement for Solid Waste Cost of Service and Rate Design FY 2023 – FY 2024 Page 2 of 2 IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first above written. CITY OF BOZEMAN, MONTANA Burns & McDonnell Engineering Company, Inc By________________________________ By_____________________________ Jeff Mihelich, City Manager Print Name: Title: APPROVED AS TO FORM By_______________________________ Greg Sullivan, Bozeman City Attorney DocuSign Envelope ID: 2ABD3810-3FB6-4A30-BD84-FBB88EE29A1A Scott Pasternak Department Manager 8911 Capital of Texas Highway \ Building 3, Suite 3100 \ Austin, TX 78759 O 512-872-7130 \ F 512-872-7127 \ burnsmcd.com November 29, 2022 Mr. Kevin Handelin Solid Waste Division Superintendent City of Bozeman, MT Re: Policy Memo & Updated Financial Study - Proposal Dear Mr. Handelin, Burns & McDonnell is pleased to present the following Scope of Work, Schedule, and Fee to continue providing solid waste, recycling, and composting consulting services for the City of Bozeman (City). These additional services are based on discussions between Burns & McDonnell and the City following the completion of the 2022 Cost of Service and Organics Feasibility Study Update (2022 Update). SCOPE OF WORK The following Scope of Work is divided into four tasks with Task 1 focusing on evaluating key topics and developing a Policy Memo that will assist the City in implementing an accessible and financially solvent automated organics collection program. Task 2 focuses on updating the 2022 Update’s financial analysis based on scenarios determined in Task 1, and Task 3 focuses on meeting with City staff and City Commission to review and present key findings and recommendations. Task 4 represents Burns & McDonnell’s additional efforts completed for the 2022 Update. Task 1 – Develop Policy Memo TASK 1A: KEY TOPIC ASSESSMENT Burns & McDonnell will assist the City in implementing an accessible and financially solvent automated organics and recycling collection program by developing a Policy Memo, in which the following key topics will be evaluated: ► Service bundling ► Opt-in versus opt-out collection programs ► Mandatory services for collection providers For each of these topics, the Policy Memo will include: ► Description of the topic ► Tables describing advantages versus disadvantages ► Brief case studies DocuSign Envelope ID: 2ABD3810-3FB6-4A30-BD84-FBB88EE29A1A Mr. Kevin Handelin November 10, 2022 Page 2 In addition, Burns & McDonnell will provide discussion and recommendations related to options to increase subscription recycling participation and provide pilot organics customers with finished compost product. TASK 1B – DRAFTING POLICY MEMO Burns & McDonnell will deliver a draft Policy Memo in Microsoft Word for the City’s review based on the evaluation of key topics described in Task 1A. Based on discussion with City staff, all policy recommendations described within the Policy Memo will be assessed by the City Attorney’s Office to determine their legality for the City. Upon receipt of City staff feedback on the draft Policy Memo, Burns & McDonnell will make appropriate changes and provide the City with a Final Memo. We will issue the Final Memo within two weeks of receiving feedback from the City on the draft. TASK 1 DELIVERABLES ► Draft Policy Memo ► Final Policy Memo Task 2 – Update Financial Analysis TASK 2A – UPDATE FINANCIAL ANALYSIS Based on scenarios described in the Policy Memo, Burns & McDonnell will correspondingly update the financial model and Executive Report that were provided as part of the 2022 Update. Burns & McDonnell will provide the City with a draft form of the financial model for review and feedback prior to updating the Executive Report and associated financial schedules. Proposed rates will be provided based on an evaluation of up to two financial scenarios determined in Task 1. Proposed rates will be assumed to be effective beginning at the start of FY 2024 (July 1st, 2023). TASK 2 DELIVERABLES ► Revised Draft of the Executive Report ► Draft of financial model for City’s review ► Updated Financial Schedules ► Updated Client Model with Corresponding Changes Task 3 – Meetings with City Staff and City Commission TASK 3A: MEETINGS WITH CITY STAFF Burns & McDonnell will meet with City Staff for up to three (3) virtual conference calls during key parts of the project to discuss feedback and results. DocuSign Envelope ID: 2ABD3810-3FB6-4A30-BD84-FBB88EE29A1A Mr. Kevin Handelin November 10, 2022 Page 3 TASK 3B: MEETING WITH CITY COMMISSION Burns & McDonnell will present key findings and recommendations during one (1) in-person City Commission meeting. For this meeting, Burns & McDonnell will provide a PowerPoint presentation in advance of the meeting for one (1) round of feedback. TASK 3 DELVIERABLES ► Virtual conference calls with City staff ► PowerPoint presentation for City Commission Meeting ► In-person presentation at City Commission Meeting Task 4 – Additional Analysis Completed for Updated Study TASK 4A: ADDITIONAL RATE ANALYSIS COMPLETED In October 2022, Burns & McDonnell completed additional rate analysis for the 2022 Update beyond the original scope. The Fee provided below represents Burns & McDonnell’s cost for the additional analysis is represented in this Task. TASK 4 DELIVERABLES ► Deliverables related to this Task were provided to the City during the completion of the 2022 Update in October 2022. Task 5 – Grant Writing Assistance TASK 5A: GRANT WRITING ASSISTANCE Burns & McDonnell will provide the City support in the development of up to two grant applications as a part of the U. S. EPA Solid Waste Infrastructure for Recycling Grant Program, which have a deadline of January 16. The two opportunities identified by Burns & McDonnell for this grant-writing assistance are as follows: ► Solid Waste Infrastructure For Recycling (SWIFR) Grant Program for Political Subdivisions of States and Territories (EPA-I-OLEM-ORCR-23-03) ► Consumer Recycling Education and Outreach (REO) Grant Program (EPA-I-OLEM-ORCR-23-02) The Fee provided below is based on completing the following Scope of Work for Task 5 for either one or two grant applications. We will conduct a thorough review of the grant notification to specifically key in on the funding opportunity description, goals, eligibility requirements, and application requirements. Burns & McDonnell will attend any required or recommended pre-application meetings. We will utilize this information to identify the most appropriate project and project components for the pursuit. In a meeting with the City, we will present the findings of our review and recommended project direction to collaboratively define the application project description. DocuSign Envelope ID: 2ABD3810-3FB6-4A30-BD84-FBB88EE29A1A Mr. Kevin Handelin November 10, 2022 Page 4 Burns & McDonnell will draft a project narrative in accordance with the established guidelines of the grant opportunity. We will format the grant application in a visually compelling presentation including the development of supporting graphics, within the specified grant formatting parameters. We will provide the City with a draft narrative to review and incorporate the comments into a final draft for submittal. Burns & McDonnell will assist in the development of a high-level budget and schedule in coordination with the City and format to be consistent with the narrative. Supporting documentation may include letters of support and staff resumes. Burn & McDonnell will draft a letter of support as a template for the City to share with partners as identified. Staff resumes will be drafted by the City. TASK 5 ASSUMPTIONS ► Grant application is a one-step application (opposed to a multi-phase application) ► The project narrative will not exceed the maximum length (number of pages) as described in the application instructions (not including the cover letter, budget, or schedule) ► The City will provide all data and information requests within the appropriate timeframe for developing the grant narrative ► The City will complete any standard grant application forms ► The City will obtain an account through grants.gov and be responsible for the submission of all forms and documents TASK 5 DELIVERABLES ► Draft grant application ► Supporting documentation (as applicable) SCHEDULE Burns & McDonnell will complete Task 1 by the end of January 2023, with Task 2 completed by the end of February 2023, assuming a notice to proceed by December 2, 2022. Meetings with the City (Task 3A) will be scheduled and completed on an as-needed basis. The City Commission meeting (Task 3B) will be tentatively scheduled for March, April or May 2023, with a specific date determined in collaboration between Burns & McDonnell and City staff. DocuSign Envelope ID: 2ABD3810-3FB6-4A30-BD84-FBB88EE29A1A Mr. Kevin Handelin November 10, 2022 Page 5 FEE Provided below are the proposed fee by task. We will invoice the City for each task on a percent complete basis. Task Fee Task 1: Develop Policy Memo TASK 1A: KEY TOPIC ASSESSMENT $14,130 TASK 1B: DRAFTING POLICY MEMO $2,870 Task 2: Update Financial Analysis TASK 2A: UPDATE FINANCIAL ANALYSIS $4,360 Task 3: Meetings with City Staff and City Commission TASK 3A: MEETINGS WITH CITY STAFF $1,850 TASK 3B: MEETING WITH CITY COMMISSION $5,190 Task 4: Additional Rate Analysis Completed TASK 4A: ADDITIONAL RATE ANALYSIS COMPLETED $1,570 Task 5: Grant-Writing Assistance TASK 5A: GRANT WRITING ASSISTANCE (ASSISTANCE WITH ONE GRANT APPLICATION) $12,500 TASK 5A: GRANT WRITING ASSISTANCE (ASSISTANCE WITH TWO GRANT APPLICATIONS) (OPTIONAL) $7,000 Total (Assistance with One Grant Application) $42,470 Total (Assistance with Two Grant Applications) $49,470 Thank you for the opportunity to submit this proposal. Please let us know if you would like to discuss the proposal or provide comments. Sincerely, Scott Pasternak Department Manager Mark Knaack Environmental Services Manager DocuSign Envelope ID: 2ABD3810-3FB6-4A30-BD84-FBB88EE29A1A Professional Services Agreement for Recycling & Organics Feasibility Study FY 2022 Page 1 of 11 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this 12th day of October, 2021 (“Effective Date”), by and between the CITY OF BOZEMAN, MONTANA, a self-governing municipal corporation organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as “City,” and, Burns & McDonnell Engineering Company, Inc., hereinafter referred to as “Contractor.” The City and Contractor may be referred to individually as “Party” and collectively as “Parties.” In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree as follows: 1. Purpose: City agrees to enter this Agreement with Contractor to perform for City services described in the Scope of Services attached hereto as Exhibit A and by this reference made a part hereof. 2. Term/Effective Date: This Agreement is effective upon the Effective Date and will expire on the 12th day of June, 2022, unless earlier terminated in accordance with this Agreement. 3. Scope of Services: Contractor will perform the work and provide the services in accordance with the requirements of the Scope of Services. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. 4. Payment: City agrees to pay Contractor the amount specified in the Scope of Services. Any alteration or deviation from the described services that involves additional costs above the Agreement amount will be performed by Contractor after written request by the City, and will become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing upon any additional charges. 5. Contractor’s Representations: To induce City to enter into this Agreement, Contractor makes the following representations: a. Contractor has familiarized itself with the nature and extent of this Agreement, the DocuSign Envelope ID: F997364D-0D3F-4C7F-A60A-3F7CF3D0631FDocuSign Envelope ID: 2ABD3810-3FB6-4A30-BD84-FBB88EE29A1A Professional Services Agreement for Recycling & Organics Feasibility Study FY 2022 Page 2 of 11 Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules, and regulations that in any manner may affect cost, progress or performance of the Scope of Services. b. Contractor represents and warrants to City that it has the experience and ability to perform the services required by this Agreement; that it will perform the services in a professional, competent and timely manner and with diligence and skill; that it has the power to enter into and perform this Agreement and grant the rights granted in it; and that its performance of this Agreement shall not infringe upon or violate the rights of any third party, whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal, state and municipal laws. The City will not determine or exercise control as to general procedures or formats necessary to have these services meet this warranty. 6. Independent Contractor Status/Labor Relations: The parties agree that Contractor is an independent contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Contractor is not subject to the terms and provisions of the City’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. Contractor is not authorized to represent the City or otherwise bind the City in any dealings between Contractor and any third parties. Contractor shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39, Chapter 71, Montana Code Annotated (MCA), and the Occupational Disease Act of Montana, Title 39, Chapter 71, MCA. Contractor shall maintain workers’ compensation coverage for all members and employees of Contractor’s business, except for those members who are exempted by law. Contractor shall furnish the City with copies showing one of the following: (1) a binder for workers’ compensation coverage by an insurer licensed and authorized to provide workers’ compensation insurance in the State of Montana; or (2) proof of exemption from workers’ compensation granted by law for independent contractors. Contractor shall post a legible statement of all wages and fringe benefits to be paid to the Contractor’s employees and the frequency of such payments (i.e., hourly wage employees shall be paid weekly). Such posting shall be made in a prominent and accessible location at the Contractor’s normal place of business and shall be made no later than the first day of services provided under this Agreement. Such posting shall be removed only upon expiration or termination of this Agreement. In performing the services under this Agreement, Contractor shall give preference to the employment of bona fide residents of Montana, as required by §18-2-403, MCA, as such term is DocuSign Envelope ID: F997364D-0D3F-4C7F-A60A-3F7CF3D0631FDocuSign Envelope ID: 2ABD3810-3FB6-4A30-BD84-FBB88EE29A1A Professional Services Agreement for Recycling & Organics Feasibility Study FY 2022 Page 3 of 11 defined by §18-2-401(1), MCA. When making assignments of work, Contractor shall use workers both skilled in their trade and specialized in their field of work for all work to which they are assigned. Pursuant to §§18-2-403 and 18-2-422, MCA, Contractor shall pay wages, fringe benefits, and expenses, including travel allowances as set forth in the current Montana Prevailing Wage Rate for Non Construction Services in effect and applicable to Gallatin County, Montana, which schedule is incorporated herein. Contractor shall pay all hourly wage employees on a weekly basis. Violation of the requirements set forth in the above State of Montana schedule of prevailing wage rates may subject the Contractor to the penalties set forth in §18-2-407, MCA. Contractor shall maintain payroll records during the term of this Agreement and for a period of three (3) years following termination of this Agreement. The Contractor shall ensure that any person, firm or entity performing any portion of the services under this Agreement for which the contractor, subcontractor or employer is responsible, is paid the applicable standard prevailing rate of wages. In the event that, during the term of this Agreement, any labor problems or disputes of any type arise or materialize which in turn cause any services to cease for any period of time, Contractor specifically agrees to take immediate steps, at its own expense and without expectation of reimbursement from City, to alleviate or resolve all such labor problems or disputes. The specific steps Contractor shall take shall be left to the discretion of Contractor; provided, however, that Contractor shall bear all costs of any related legal action. Contractor shall provide immediate relief to the City so as to permit the services to continue at no additional cost to City. Contractor shall indemnify, defend, and hold the City harmless from any and all claims, demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in connection with any labor problems or disputes or any delays or stoppages of work associated with such problems or disputes and for any claims regarding underpaid prevailing wages. 7. Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of expert witness and consultants), losses, expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or DocuSign Envelope ID: F997364D-0D3F-4C7F-A60A-3F7CF3D0631FDocuSign Envelope ID: 2ABD3810-3FB6-4A30-BD84-FBB88EE29A1A Professional Services Agreement for Recycling & Organics Feasibility Study FY 2022 Page 4 of 11 in any way related to: (i) the negligent, reckless, or intentional misconduct of the Contractor; or (ii) any negligent, reckless, or intentional misconduct of any of the Contractor’s agents. For the professional services rendered, to the fullest extent permitted by law, Contractor agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees, to the extent caused by the negligence or intentional misconduct of the Contractor or Contractor’s agents or employees. Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the City as indemnitee(s) which would otherwise exist as to such indemnitee(s). Contractor’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. Should the City be required to bring an action against the Contractor to assert its right to defense or indemnification under this Agreement or under the Contractor’s applicable insurance policies required below, the City shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines the Contractor was obligated to defend the claim(s) or was obligated to indemnify the City for a claim(s) or any portion(s) thereof. In the event of an action filed against the City resulting from the City’s performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. Contractor also waives any and all claims and recourse against the City, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for [City’s] own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. These obligations shall survive termination of this Agreement and the services performed hereunder. In addition to and independent from the above, Contractor shall at Contractor’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically DocuSign Envelope ID: F997364D-0D3F-4C7F-A60A-3F7CF3D0631FDocuSign Envelope ID: 2ABD3810-3FB6-4A30-BD84-FBB88EE29A1A Professional Services Agreement for Recycling & Organics Feasibility Study FY 2022 Page 5 of 11 assumed by the Contractor in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Contractor in this Section. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the City without limit and without regard to the cause therefore and which is acceptable to the City. Contractor shall furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows: • Workers’ Compensation – statutory; • Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Automobile Liability - $1,000,000 property damage/bodily injury per accident; and • Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate. The above amounts shall be exclusive of defense costs. The City shall be endorsed as an additional or named insured on a primary non-contributory basis on both the Commercial General and Automobile Liability policies. The insurance and required endorsements must be in a form suitable to City and shall include no less than a thirty (30) day notice of cancellation or non-renewal. Contractor shall notify City within two (2) business days of Contractor’s receipt of notice that any required insurance coverage will be terminated or Contractor’s decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. 8. Termination for Contractor’s Fault: a. If Contractor refuses or fails to timely do the work, or any part thereof, or fails to perform any of its obligations under this Agreement, or otherwise breaches any terms or conditions of this Agreement, the City may, by written notice, terminate this Agreement and the Contractor’s right to proceed with all or any part of the work (“Termination Notice Due to Contractor’s Fault”). The City may then take over the work and complete it, either with its own resources or by re-letting the contract to any other third party. b. In the event of a termination pursuant to this Section 8, Contractor shall be entitled to payment only for those services Contractor actually rendered. DocuSign Envelope ID: F997364D-0D3F-4C7F-A60A-3F7CF3D0631FDocuSign Envelope ID: 2ABD3810-3FB6-4A30-BD84-FBB88EE29A1A Professional Services Agreement for Recycling & Organics Feasibility Study FY 2022 Page 6 of 11 c. Any termination provided for by this Section 8 shall be in addition to any other remedies to which the City may be entitled under the law or at equity. d. In the event of termination under this Section 8, Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 9. Termination for City’s Convenience: a. Should conditions arise which, in the sole opinion and discretion of the City, make it advisable to the City to cease performance under this Agreement, the City may terminate this Agreement by written notice to Contractor (“Notice of Termination for City’s Convenience”). The termination shall be effective in the manner specified in the Notice of Termination for City’s Convenience and shall be without prejudice to any claims that the City may otherwise have against Contractor. b. Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise directed in the Notice, the Contractor shall immediately cease performance under this Agreement and make every reasonable effort to refrain from continuing work, incurring additional expenses or costs under this Agreement and shall immediately cancel all existing orders or contracts upon terms satisfactory to the City. Contractor shall do only such work as may be necessary to preserve, protect, and maintain work already completed or immediately in progress. c. In the event of a termination pursuant to this Section 9, Contractor is entitled to payment only for those services Contractor actually rendered on or before the receipt of the Notice of Termination for City’s Convenience. d. The compensation described in Section 9(c) is the sole compensation due to Contractor for its performance of this Agreement. Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. DocuSign Envelope ID: F997364D-0D3F-4C7F-A60A-3F7CF3D0631FDocuSign Envelope ID: 2ABD3810-3FB6-4A30-BD84-FBB88EE29A1A Professional Services Agreement for Recycling & Organics Feasibility Study FY 2022 Page 7 of 11 10. Limitation on Contractor’s Damages; Time for Asserting Claim: a. In the event of a claim for damages by Contractor under this Agreement, Contractor’s damages shall be limited to contract damages and Contractor hereby expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b. In the event Contractor wants to assert a claim for damages of any kind or nature, Contractor shall provide City with written notice of its claim, the facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, within thirty (30) days of the facts and circumstances giving rise to the claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights to assert such claim. 11. Representatives and Notices: a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be Kristin Donald, Finance Director or such other individual as City shall designate in writing. Whenever approval or authorization from or communication or submission to City is required by this Agreement, such communication or submission shall be directed to the City’s Representative and approvals or authorizations shall be issued only by such Representative; provided, however, that in exigent circumstances when City’s Representative is not available, Contractor may direct its communication or submission to other designated City personnel or agents as designated by the City in writing and may receive approvals or authorization from such persons. b. Contractor’s Representative: The Contractor’s Representative for the purpose of this Agreement shall be Scott Pasternak or such other individual as Contractor shall designate in writing. Whenever direction to or communication with Contractor is required by this Agreement, such direction or communication shall be directed to Contractor’s Representative; provided, however, that in exigent circumstances when Contractor’s Representative is not available, City may direct its direction or communication to other designated Contractor personnel or agents. c. Notices: All notices required by this Agreement shall be in writing and shall be provided to the Representatives named in this Section. Notices shall be deemed given when delivered, if delivered by courier to Party’s address shown above during normal business DocuSign Envelope ID: F997364D-0D3F-4C7F-A60A-3F7CF3D0631FDocuSign Envelope ID: 2ABD3810-3FB6-4A30-BD84-FBB88EE29A1A Professional Services Agreement for Recycling & Organics Feasibility Study FY 2022 Page 8 of 11 hours of the recipient; or when sent, if sent by email or fax (with a successful transmission report) to the email address or fax number provided by the Party’s Representative; or on the fifth business day following mailing, if mailed by ordinary mail to the address shown above, postage prepaid. 12. Permits: Contractor shall provide all notices, comply with all applicable laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. 13 Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non-discrimination, affirmative action, and utilization of minority and small business statutes and regulations. 14. Nondiscrimination and Equal Pay: The Contractor agrees that all hiring by Contractor of persons performing this Agreement shall be on the basis of merit and qualifications. The Contractor will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. The Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. Contractor represents it is, and for the term of this Agreement will be, in compliance with the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act). Contractor must report to the City any violations of the Montana Equal Pay Act that Contractor has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. Contractor shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. DocuSign Envelope ID: F997364D-0D3F-4C7F-A60A-3F7CF3D0631FDocuSign Envelope ID: 2ABD3810-3FB6-4A30-BD84-FBB88EE29A1A Professional Services Agreement for Recycling & Organics Feasibility Study FY 2022 Page 9 of 11 15. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent engaged in services to the City under this Agreement while on City property or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. The Contractor shall be responsible for instructing and training the Contractor's employees and agents in proper and specified work methods and procedures. The Contractor shall provide continuous inspection and supervision of the work performed. The Contractor is responsible for instructing its employees and agents in safe work practices. 16. Modification and Assignability: This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Contractor may not subcontract or assign Contractor’s rights, including the right to compensation or duties arising hereunder, without the prior written consent of the City. Any subcontractor or assignee will be bound by all of the terms and conditions of this Agreement. 17. Reports/Accountability/Public Information: Contractor agrees to develop and/or provide documentation as requested by the City demonstrating Contractor’s compliance with the requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons authorized by the City to inspect and copy its books and records for the purpose of verifying that the reimbursement of monies distributed to Contractor pursuant to this Agreement was used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The Contractor shall not issue any statements, releases or information for public dissemination without prior approval of the City. 18. Non-Waiver: A waiver by either party of any default or breach by the other party of any terms or conditions of this Agreement does not limit the other party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 19. Attorney’s Fees and Costs: In the event it becomes necessary for either Party to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable DocuSign Envelope ID: F997364D-0D3F-4C7F-A60A-3F7CF3D0631FDocuSign Envelope ID: 2ABD3810-3FB6-4A30-BD84-FBB88EE29A1A Professional Services Agreement for Recycling & Organics Feasibility Study FY 2022 Page 10 of 11 attorney's fees and costs, including fees, salary, and costs of in-house counsel including the City Attorney’s Office staff. 20. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. 21. Dispute Resolution: a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 22. Survival: Contractor’s indemnification shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 23. Headings: The headings used in this Agreement are for convenience only and are not be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. 24. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 25. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 26. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 27. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. DocuSign Envelope ID: F997364D-0D3F-4C7F-A60A-3F7CF3D0631FDocuSign Envelope ID: 2ABD3810-3FB6-4A30-BD84-FBB88EE29A1A Professional Services Agreement for Recycling & Organics Feasibility Study FY 2022 Page 11 of 11 28. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 29. Integration: This Agreement and all Exhibits attached hereto constitute the entire agreement of the parties. Covenants or representations not contained herein or made a part thereof by reference, are not binding upon the parties. There are no understandings between the parties other than as set forth in this Agreement. All communications, either verbal or written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by reference. 30. Consent to Electronic Signatures: The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. 31. Extensions: this Agreement may, upon mutual agreement, be extended for a period of one year by written agreement of the Parties. In no case, however, may this Agreement run longer than eight months. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written or as recorded in an electronic signature. CITY OF BOZEMAN, MONTANA Burns & McDonnell Engineering Company, Inc. By________________________________ By__________________________________ Jeff Mihelich, City Manager Print Name: ___________________________ Print Title: ____________________________ APPROVED AS TO FORM: By_______________________________ Greg Sullivan, Bozeman City Attorney DocuSign Envelope ID: F997364D-0D3F-4C7F-A60A-3F7CF3D0631F Scott Pasternak Department Manager DocuSign Envelope ID: 2ABD3810-3FB6-4A30-BD84-FBB88EE29A1A City of Bozeman: City-wide Recycling and Pilot Organics Collection Feasibility and Cost of Service Study Update 1 CITY OF BOZEMAN: CITY-WIDE RECYCLING AND PILOT ORGANICS COLLECTION FEASIBILITY AND COST OF SERVICE STUDY UPDATE This proposal is for Burns & McDonnell to assist the City of Bozeman (City) in updating the 2019 cost of service study and 2021 feasibility study for providing curbside recycling collection City-wide and initiating a pilot automated organics collection program. We have organized this scope of services by describing four phases to the Scope of Work and to include: (1) Project Initiation and Management; (2) Cost Service Study Update; (3) City-wide Recycling and Pilot Organics Collection Feasibility Update; and (4) Report Preparation and Presentation. This proposal includes our scope of work, schedule, and fee. SCOPE OF WORK Phase 1 Project Initiation & Management TASK 1A: INITIAL DATA REQUEST & REVIEW Following receipt of the Notice to Proceed, Burns & McDonnell will provide the City with a detailed preliminary data request that will encompass data needs for completing the study update. The data request will itemize our needs for understanding the operational, contractual, and financial considerations that must be addressed. For the cost of service study, Burns & McDonnell will also provide updated copies of all worksheets from the model that the City will need to review and update, including the equipment and personnel allocation worksheets, billing units, and capital improvement plan. Burns & McDonnell assumes any billing unit updates will be provided in summary form similar to the cost of service model worksheets. This task also includes organization and preliminary analysis of all data received. We recognize that the City may not be able to, or already have provided certain items for this effort as part of the previous study. In these cases, we will work with the appointed project manager to request updated information or determine reasonable substitutes for the key data, if needed. TASK 1B: VIRTUAL KICK-OFF MEETING & PROJECT MANAGEMENT Prior to commencing the study, members of the project team will conduct a kick-off conference call with key City staff. During this kick-off conference call, we will discuss the project work plan, key issues to be addressed, key findings from previous engagements as well as confirm the timing associated with the various project tasks. We will discuss our initial data request that we will have provided to the City staff 7 to 14 days prior to the kick-off meeting. Burns & McDonnell will provide the agenda and any handout materials at least two days in advance. During the meeting, we will also identify primary contacts for our project team and the City and establish protocol for the exchange of information and the resolution of issues that arise in the normal course of this engagement. To facilitate effective communication between project team members and the City throughout the course of this project, Burns & McDonnell will: ► Schedule and participate in periodic conference calls as needed to discuss project matters ► Provide periodic status updates via electronic format ► Be available for other communication(s) as needed DocuSign Envelope ID: F997364D-0D3F-4C7F-A60A-3F7CF3D0631FDocuSign Envelope ID: 2ABD3810-3FB6-4A30-BD84-FBB88EE29A1A City of Bozeman: City-wide Recycling and Pilot Organics Collection Feasibility and Cost of Service Study Update 2 PHASE 1 DELIVERABLES ► Preliminary data request ► Electronic copies of the kick-off meeting agenda handouts, and follow-up summary ► Participation of Burns & McDonnell project manager and key staff in kick-off conference call and other requested meetings Phase 2: Cost of Service Study Update Burns & McDonnell will assist the City in updating the cost of service analysis completed for the City in 2019. This effort will provide the City with an updated five-year forecast. TASK 2A: BASELINE COST OF SERVICE MODEL UPDATE Tasks 2B and 2C contemplate alternative rate structures and the impact of those changes. Task 2A includes an update of the cost of service model before those rate structure changes. Specifically, Burns & McDonnell will update: ► Test year ► Five-year forecast ► Cost of service by customer class ► Rate increases under existing rate structures ► Revenue under existing rate structures ► Net revenue under existing rate structures Task 2A will also take into consideration challenges associated with labor shortages, vehicle availability, inflation forecasting and the open market for solid waste services. TASK 2B: EVALUATE NEW RATES Burns & McDonnell will schedule a conference call with key City operations and finance staff. During the call, we will discuss options and scenarios for the City’s solid waste and recycling rates, with a specific understanding of the competitive nature of the solid waste market. We understand that City staff will be able to provide details on the rates being charged by private haulers in the City. We will provide the City with rate recommendations. TASK 2C: REVENUE SCENARIO FORECAST Using the rate structure discussed in Task 2B and updated model from Task 2A, Burns & McDonnell will develop a revenue scenario that shows the impact of the updated rate structure. Task 2C also includes working with the City to establish the time frame for implementation of the rate structure. TASK 2D: DEVELOP CLIENT MODEL AND CONDUCT TRAINING Burns & McDonnell will provide the City with a client rate model, which will allow the City to update model inputs and adjust assumptions to reflect changes to the City’s solid waste and recycling system. We will provide the City with a user manual document, and we will conduct a virtual training with City staff on the use of the model. PHASE 2 DELIVERABLES ► Updated schedules and worksheets ► Conference call to discuss revenue scenario findings ► Client model with user guide and training DocuSign Envelope ID: F997364D-0D3F-4C7F-A60A-3F7CF3D0631FDocuSign Envelope ID: 2ABD3810-3FB6-4A30-BD84-FBB88EE29A1A City of Bozeman: City-wide Recycling and Pilot Organics Collection Feasibility and Cost of Service Study Update 3 Phase 3: City-wide Recycling and Pilot Organics Collection Feasibility Update Burns & McDonnell will assist the City in updating the City-wide Recycling and Pilot Organics Collection Feasibility Study that begun in 2020 and was completed for the City in 2021. Our analysis will address changes that have occurred due to COVID-19 and associated impacts in society and the economy. We will review the assumptions, modeling, and analyses with the City to determine key changes and updates that will need to be made. PHASE 3 DELIVERABLES ► Updated modeling and analyses ► Conference call to discuss findings Phase 4: Report Preparation and Presentation TASK 4A: UPDATED COST OF SERVICE POWERPOINT As a part of the City-wide Recycling and Pilot Organics Collection Feasibility Study, Burns & McDonnell still needs to provide the City with a Final Report, PowerPoint presentation and meeting with the City Commission. We will complete these efforts as a part of the City-wide Recycling and Pilot Organics Collection Feasibility Study. Phase 4 will include efforts associated with developing an updated PowerPoint for the cost of service study update. We will not be developing an updated cost of service study report. When we present to the City Commission on the City-wide Recycling and Pilot Organics Collection Feasibility Study, the presentation will also include the cost of service study findings and recommendations PHASE 4 DELIVERABLES ► PowerPoint slides for the cost of service update DocuSign Envelope ID: F997364D-0D3F-4C7F-A60A-3F7CF3D0631FDocuSign Envelope ID: 2ABD3810-3FB6-4A30-BD84-FBB88EE29A1A City of Bozeman: City-wide Recycling and Pilot Organics Collection Feasibility and Cost of Service Study Update 4 FEE The following table provides an outline of the services to be provided and includes the fee, inclusive of professional fees and out-of-pocket expenses. Services for Phases 1, 2, 3 and 4 will be invoiced on a percent complete basis. Task Fee Phase 1: Project Initiation & Management TASK 1A: INITIAL DATA REQUEST & REVIEW $1,790 TASK 1B: VIRTUAL KICK-OFF MEETING & PROJECT MANAGEMENT $1,800 Phase 2: Cost of Service Study Update TASK 2A: BASELINE COST OF SERVICE MODEL UPDATE $4,060 TASK 2B: EVALUATE NEW RATES $3,930 TASK 2C: REVENUE SCENARIO FORECAST $2,140 TASK 2D: DEVELOP CLIENT MODEL AND CONDUCT TRAINING $4,480 Phase 3: City-wide Recycling and Pilot Organics Collection Feasibility Update TASK 3A: CITYWIDE RECYCLING AND AUTOMATED ORGANICS COLLECTION $5,010 Phase 4: Report Preparation and Presentation TASK 4A: UPDATED COST OF SERVICE POWERPOINT $4,260 Total $27,270 DocuSign Envelope ID: F997364D-0D3F-4C7F-A60A-3F7CF3D0631FDocuSign Envelope ID: 2ABD3810-3FB6-4A30-BD84-FBB88EE29A1A