HomeMy WebLinkAbout01-23-17 CC Mtg - C8. Amendment 1 with Community Development Services for TIF DistrictsCommission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Brit Fontenot, Director of Economic Development
SUBJECT: Ratify the City Manager’s Signature on Amendment 1 to
Professional Services Agreement with Community
Development Services of Montana for Consulting Services in
the City’s TIF Districts.
MEETING DATE: January 23, 2017
AGENDA ITEM TYPE: Consent
RECOMMENDATION: Ratify the City Manager’s Signature on Amendment 1 to
Professional Services Agreement with Community Development Services of
Montana for Consulting Services in the City’s TIF Districts.
BACKGROUND:
The following link is to the January 11, 2016 City Commission Packet
Material Packet Material where the original Professional Services Agreement
(“PSA”) with Community Development Services of Montana (“CDS”) for consulting
services in the City’s TIF Districts was approved.
As provided for in the original PSA, Section 30 of the agreement allows an
extension up to June 31, 2017. (Attachment 1) Both parties have provided the
required “mutual written agreement by the parties” notice. (Attachments 2 and 3).
Amendment 1 extends the PSA deadline to June 31, 2017. (Attachment 4)
UNRESOLVED ISSUES: None at this time.
FISCAL EFFECTS: Costs associated with consulting work in each TIF district
allocated to each TIF district as appropriate.
ATTACHMENTS:
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1) Executed Professional Services Agreement with Community Development
Services of Montana for consulting services in the City’s TIF districts;
2) January 3, 2017 letter to CDS from City staff;
3) January 3, 2017 letter to City staff from CDS; and
4) Amendment 1 to the to the original Professional Services Agreement with
Community Development Services of Montana for consulting services in the
City’s TIF districts.
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PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this 11th day of January, 2016, 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, Community Development Services of
Montana, with a mailing address of 954 West Caledonia St., Butte, MT 59701 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 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 Attachment " A" and by this
reference made a part hereof.
2. Term/Effective Date: This Agreement is effective upon the date of its execution and
will teu ninate one year from the effective date.
3. Scope of Work: Contractor will perform the work and provide the services in
accordance with the requirements of the Scope of Services( the frequency and work schedule),
described in Attachment " A". For conflicts between this Agreement and the Scope of
Services, unless specifically provided otherwise, the Agreement governs.
4. Payment: City agrees to pay Contractor for services provided based on the hourly
rates( s) 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.
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5. Contractor' s Representations: To induce City to enter into this Agreement,
Contractor makes the following representations:
a. Contractor has familiarized itselfwiththenature and extent of this Agreement,
the 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 said 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 twins 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 oftheWorkers' Compensation Act,
Title 39, Chapter 71, 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 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.
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In the event that, during the term of this Agreement, any Iabor 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 to services 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
and 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 in any way related to:
i) the negligent, reckless, or intentional misconduct of the Contractor; ( ii) any negligent,
reckless, or intentional misconduct of any of the Contractor' s agents; or ( iii) the negligent,
reckless, or intentional misconduct of any other third party.
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 willful misconduct ofthe 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
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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 any indemnitee described herein 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 indemnitee shall be entitled to recover
reasonable costs and attorney fees incurred in asserting its right to indemnification or defense
but only ifacourtofcompetentjurisdictiondetermines the Contractor was obligated to defend
the claim( s) or was obligated to indemnify the indemnitee for a claim( s) or any portion( s)
thereof.
In the event of an action filed against 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 or its officers, agents
or employees, 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 his 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 perfonued
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 assumed by the Contractor in this Section. The insurance coverage shall not
contain any exclusion for liabilities specifically assumed by the Contractor in subsection ( a)
of 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 and
Contractor shall furnish to the City an accompanying certificate of insurance and
accompanying endorsements in amounts not less than as follows:
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Workers' Compensation— statutory;
Commercial General Liability - $1, 000,000 per occurrence; $ 2, 000, 000 annual
aggregate; and
Automobile Liability - $ 100,000 property damage/ bodily injury; $ 500, 000 annual
aggregate.
The City of Bozeman, its officers, agents, and employees, 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 sixty (60) day notice of cancellation or non-
renewal. The City must approve all insurance coverage and endorsements prior to the
Contractor commencing work. Contractor shall notify City within two ( 2) business days of
Contractor' s receipt of notice that any required insurance coverage will be tel ninated 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.
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.
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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 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 Tethiination 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-Willis 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 13, 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 13( 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.
e. Contractor may terminate this Professional Services Agreement in whole or in
part for any reason at any time upon giving written notice. Such termination shall be effective
in the manner specified in said notice. The TIF will compensate Contractor for services
perfoirned up to the date of termination. If Contractor terminates pursuant to this subsection,
Contractor shall immediately provide TIF with all Contractor' s work product.
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
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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 ten ( 10) 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:
a. City' s Representative: The City' s Representative for the purpose of this
Agreement shall be Brit Fontenot( Economic Development 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 Brit Fontenot as 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 listed above 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 Janet Cornish 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.
IF
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.
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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 ofminority and
small business statutes and regulations.
14. Nondiscrimination: 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. The Contractor shall require
these nondiscrimination terms of its sub- Contractors providing services under this agreement.
15. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor
shall not permit or suffer the introduction or use ofanyintoxicants,including alcohol or illegal
drugs, by any employee or agent engaged in services to the City 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 his employees and agents in safe work practices.
16. Modification and Assignability: This document contains the entire agreement
between the parties and no statements, promises or inducements made by either party or agents
of either party, which are not contained in this written Agreement, may be considered valid or
binding. This Agreement may not be enlarged, modified or altered except by written
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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 City. Any subcontractor or assignee will be bound by all of the
tert,is 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 inforination for public dissemination without prior approval of the City.
18. Non-Waiver: A waiver by either party 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
teiiii 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: That in the event it becomes necessary for either Party of
this Agreement to retain an attorney to enforce any oftheterms 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 attorney' s fees and costs, including fees, salary, and costs of in-house
counsel to include City Attorney.
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 oftheparties, 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
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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: IfanyportionofthisAgreementisheld 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 and the parties expressly agree that venue will be in Gallatin
County, Montana, and no other venue.
26. Binding Effect: This Agreement is binding upon and inures to the benefit oftheheirs,
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.
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 therein 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. Extensions: this Agreement may, upon mutual written agreement by the parties,
may be extended. In no case, however, may this Agreement run longer than June 31, 2017.
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END OF AGREEMENT EXCEPT FOR SIGNATURES ****
IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year
first above written.
CITY OF BOZEMAN, MONTANA Community Development Services of Montana
CONTRACTOR( Type Name Above)
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Chris Kukulski, City Manager
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APPROVED AS TO FORM:
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Greg ultivan, Bozeman City Attorney
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Attachment A
SCOPE OF SERVICES
The City requests technical assistance in support of its various tax increment financing
TIF) programs and activities associated with its urban renewal, technology and industrial districts
and potential targeted economic development district(s) ( TEDD).
Community Development Services ofMontana( CDS) is responsible for advising the City
on maximizing the economic development potential of the City' s TIF districts, as appropriate,
within the City of Bozeman. This may include, but not be limited to, support for program review,
modification and development, project review modification and development, bonding assistance,
District creation, utilization, sun-setting and/or modification, urban renewal and TED districts,
workshops, presentations and other support within the City' s five Tax Increment Financing
Districts including, the Northeast Urban Renewal District, the South Bozeman Technology
District, the Bozeman Midtown Urban Renewal District, the Downtown Urban Renewal District
and the North Park Industrial District.
Specific services within the Districts may include, among other tasks, assisting the City
and associated advisory boards in:
Support in setting District(s) goals and objectives;
Preparing and submitting documents related to bonding a District or Districts;
Preparing and submitting documents related to sun-setting, establishing or
modifying a District or Districts;
Making presentations to various advisory boards, community groups, city staff and
the Bozeman City Commission; and
Providing on-going programmatic and technical assistance and referrals.
CDS Principal and Subcontractor(s) and their respective hourly rates:
Janet Cornish, Principal 80. 00/hr.
Lanette Windemaker, AICP
Community Planner and Subcontractor 80. 00/hr.
In addition, the CDS will be reimbursed for expenses, i.e. travel and misc. expenses,
associated with the fulfillment of the agreement.
The above- referenced general scope may be applied to several projects within the
City' s TIF districts and may require additional approvals and subsequent task orders
which may be negotiated over a period of time. Task orders will be used to establish
individual project budgets and scopes. The contract terms are for one year from the
effective date of the executed contract.
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January 3rd, 2017
Brit Fontenot,
Director of Economic Development
City of Bozeman
121 N. Rouse Avenue
Bozeman, MT 59715
Dear Brit,
Community Development Services (CDS) of Montana is pleased to extend the contract
with the City of Bozeman to provide technical assistance in connection the City’s tax
increment financing program through June 30th, 2017. I understand, per Section 30 of
our original agreement, dated January 11th, 2016, that this contract cannot be extended
beyond that date.
Thank you so much for this opportunity to continue to serve the City.
Best Wishes,
Janet A. Cornish
Janet Cornish, Principal
CDS
Community Development Services of Montana
954 Caledonia Street Butte, Montana 59701
janet@cdsofmontana.com
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January 3, 2017
Janet Cornish VIA E-MAIL ONLY
Community Development Services of Montana
954 West Caledonia Street
Butte, MT 59701
Re: Contract Extension
Dear Janet,
Per the agreement executed on January 11, 2016 between the City of Bozeman
and Community Development Services of Montana for technical assistance in the City’s
TIF and TEDD districts, the City requests that the contract be extended until June 31,
2017. Section 30 of the Professional Services Agreement states that “this Agreement,
upon written mutual agreement by the parties, may be extended. In no case however,
may this Agreement run longer than June 31, 2017”.
Please consider this letter the City’s formal written request to extend the
Agreement as set forth in Section 30 of the document. If desirous of the same
extension, please provide your written agreement to extend the contract at your
earliest convenience but not later than January 11, 2017 or the Professional Services
Agreement will terminate. Call me with any questions at 406-579-1302.
Kind regards,
Brit Fontenot
Director of Economic Development
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