HomeMy WebLinkAbout17- Construction Agreement - Armitage Electric - City Hall Parking Lot Lighting CONSTRUCTION AGREEMENT
This Construction Agreement is made this CIS}day of August, 2017, by and between
the CITY OF BOZEMAN, MONTANA, a municipal corporation organized and existing under
the laws of the State of Montana, P.O. Box 1231, Bozeman, Montana 59771-1231 ("City"), and
Armitage Electric, 5555 Gooch Hill Road, Bozeman MT 59718, ("Contractor").
In consideration of the covenants, agreements, representations, and warranties contained
herein, the parties agree as follows:
1. Work to be Performed:
a. A description of the work to be performed to install new parking lot
lighting in the City Hall East parking lot (the "Construction Project") and Contractor's
duties is set forth in the drawings, plans, and specifications provided by the City, which
are incorporated herein by this reference, and in the attached Scope of Services (Drawing
Set ESI.l, ES2.1, ES 3.1, ES3.2 -Attachment A).
b. Prior to the commencement of any work on the Construction Project,
Contractor's representatives and City's representatives shall hold a meeting to establish a
working understanding among the parties as to the scope of the Construction Project and
duties of the Contractor. At this meeting, Contractor and City shall resolve any
outstanding issues related to the plans, designs, drawings, and specifications. If the
parties are unable to resolve these issues and the City fails, refuses, or is unable to
approve the same, no work shall commence on the Construction Project until such issues
are resolved and the City approves the related plans, designs, drawings, and
specifications.
C. Except as provided elsewhere in this Agreement, Contractor shall furnish
all the labor, materials, equipment, tools, and services necessary to perform and complete
the Construction Project.
d. During work on the Construction Project, and as part of the final
completion of the Construction Project, Contractor shall clean up the Project site,
including the removal and satisfactory disposal of all waste, garbage, excess materials,
and equipment, and the performance of any other work necessary to restore the site to at
least as good order and condition as at the commencement of the Construction Project.
2. City-Supplied Materials: The City may supply materials from time to time in
furtherance of the Construction Project. Such materials will be noted as an addendum to this
Agreement.
3. Time of Performance: Contractor shall begin the Construction Project after
receiving a Notice to Proceed from City and shall complete the Construction Project no later than
December 31 st, 2017. Time is of the essence of completion of all work and each phase of the
Construction Project.
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4. Liquidated Damages: If the Construction Project is not completed within the
time provided by this Agreement, the City may deduct for each day the Construction Project
remains uncompleted the sum of Five Hundred Dollars ($500.00) from the compensation
hereinafter specified and retain that sum as payment for liquidated damages sustained by reason
of the Contractor's failure to complete the Construction Project on time.
5. Compensation:
a. City shall pay to Contractor, and Contractor shall accept as full payment
for the performance of this Agreement and the Construction Project, the amount of
Twenty Five Thousand Four Hundred Fifty Dollars ($25,450).
b. If work not included within the original Construction Documents is
requested by City, such additional work and the related compensation shall be agreed to
in writing by both parties prior to commencement of the additional work ("Change
Order").
C. City shall retain five percent (5%) of the total amount of compensation to
be paid to the Contractor to ensure compliance with the terms and conditions of this
Agreement and the timely completion of the Construction Project and any and all "punch
list" items ("Retainage Amount"). The Retainage Amount shall be paid to Contractor
thirty (30) days after the City's final acceptance of the portion of work for which a
separate price is stated in the specifications for the Construction Project.
e. Upon acceptance of final payment and for other good and valuable
consideration, Contractor shall and hereby does release and forever discharge City, its
officers, agents, and employees of and from any and all claims, demands, actions, causes
of action, obligations, and liabilities of every kind and character whatsoever, in law and
in equity, whether now known or in the future discovered, arising from or related to this
Agreement or the Construction Project that Contractor may have or assert against City, its
officers, agents, and employees.
6. Inspection and Testing:
a. City has the right to inspect and test any and all work performed by
Contractor on the.Construction Project. Contractor shall allow City and its agents access
to the Construction Project at all times and shall provide every reasonable facility for the
purpose of such inspection and testing, including temporarily discontinuing portions of
the work or uncovering or taking down portions of the finished work. Any inspection
and testing performed by the City and its agents is for the sole benefit of the City and
shall not relieve the Contractor of its duty, responsibility, and obligation to ensure that the
work strictly complies with the Agreement terms and conditions and all applicable laws
and building and safety codes. City's inspection and testing shall not be deemed or
considered acceptance by the City of any portion of the Construction Project. City's
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inspection and testing shall not serve to nullify, amend, or waive any warranties provided
by the Contractor under this Agreement.
b. Contractor shall, without charge, replace any material or correct any work
found by the City or its agents to be defective or otherwise not in compliance with the
terms and conditions of this Agreement. In the event Contractor fails to replace or
correct any defective work or materials after reasonable written notice by the City to do
so, the City may take such corrective action, either with its own materials and employees
or by retailing any third party to do so, and deduct the cost and expense of such
corrective action from the Contractor's compensation.
7. Partial Utilization of Construction Project: City shall have the right to use or
occupy any portion of the Construction Project that City and Contractor mutually agree is
substantially completed and constitutes a separately functioning and usable part of the
Construction Project for its intended purpose without significant interference with Contractor's
performance of the remaining portions of the Construction Project. In the event City takes
possession of any portion of the Construction Project, such possession shall not be deemed an
acceptance of the Construction Project, in whole or in part. City's use of any portion of the
Construction Project shall not be grounds for extensions of any construction deadlines or a
change in the Contractor's compensation. Contractor's warranties shall run from the completion
of the total Construction Project and not from the date the City may take possession of selected
portions of the Construction Project.
8. Related Work at the Site: Nothing in this Agreement shall prevent or preclude
City, through its own employees or by contract with any third party, from performing other work
related to the Construction Project at the construction site; provided such related work is not
otherwise addressed in this Agreement and provided such related work does not otherwise
interfere with Contractor's performance of this Agreement or the completion of the Construction
Project. Contractor shall afford any City employee, agent or representative, or any third party
under contract with the City to perform the related work, proper and safe access to the
construction site, a reasonable opportunity for the introduction and storage of materials and
equipment, the opportunity to perform the related work, and shall properly coordinate the
Contractor's work on the Construction Project with the related work.
9. Contractor's Warranties: Contractor represents and warrants as follows:
a. Unless otherwise specified by the terms of this Agreement, all materials
and equipment used by Contractor on the Construction Project shall be new and where
not otherwise specified, of the most suitable grade for their intended uses.
b. All workmanship and materials shall be of a kind and nature acceptable to
the City.
C. All equipment, materials, and labor provided to, on, or for the
Construction Project must be free of defects and nonconformities in design, materials,
and workmanship for a minimum period beginning with the commencement of the work
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on the Construction Project and ending one (1) year from the final completion and
acceptance by the City of the Construction Project, regardless of whether such
equipment, materials, or labor were supplied directly by Contractor or indirectly by
Contractor's subcontractors or suppliers. Other express warranties on materials that
provide for a warranty period longer than one year apply for the period of that express
warranty and are not reduced by this provision. Upon receipt of City's written notice of a
defective or nonconforming condition during the warranty period, Contractor shall take
all actions, including redesign and replacement, to correct the defective or
nonconforming condition within a time frame acceptable to the City and at no additional
cost to the City. Contractor shall also, at its sole cost, perform any tests required by City
to verify that such defective or nonconforming condition has been corrected. Contractor
warrants the corrective action taken against defective and nonconforming conditions for a
period of an additional one (1) year from the date of City's acceptance of the corrective
action.
d. Contractor and its sureties are liable for the satisfaction and full
performance of all warranties.
e. Contractor shall give its personal attention to the faithful prosecution of
the completion of the Construction Project and Contractor, or its duly authorized
representative assigned to serve as the Construction Project Manager, shall be personally
present at the site of the Construction Project during working hours for the term of this
Agreement until the completion of the Construction Project.
f. Contractor shall have a complete, accurate, and up-to-date set of
construction plans, drawings, and specifications on site at all times.
g. Contractor has examined all available records and made field
examinations of the site of the Construction Project. Contractor has knowledge of the
field conditions to be encountered during the Construction Project. Contractor has
knowledge of the types and character of equipment necessary for the work, the types of
materials needed and the sources of such materials, and the condition of the local labor
market.
h. Contractor is responsible for the safety of the work and shall maintain all
lights, guards, signs, temporary passages, or other protections necessary for that purpose
at all times.
i. All work must be performed at Contractor's risk, and Contractor shall
promptly repair or replace all damage and loss at its sole cost and expense regardless of
the reason or cause of the damage or loss; provided, however, should the damage or loss
be caused by an intentional or negligent act of the City, the risk of such loss shall be
placed on the City.
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j. Contractor is responsible for any loss or damage to materials, tools, or
other articles used or held for use in the completion of performance of the Construction
Project.
k. Contractor's performance must be without damage or disruption to any
other work or property of the City or of others and without interference with the
operation of existing machinery or equipment.
1. Title to all work, materials, and equipment covered by any payment of
Contractor's compensation by City, whether directly incorporated into the Construction
Project or not, passes to City at the time of payment, free and clear of all liens and
encumbrances.
10. Delays and Extensions of Time: If Contractor's performance of this Agreement
is prevented or delayed by any unforeseen cause beyond the control of the Contractor, including
acts or omissions of the City, Contractor shall, within ten (10) days of the commencement of any
such delay, give the City written notice thereof. Further, Contractor shall, within ten(10) days of
the termination of such delay, give the City written notice of the total actual duration of the
delay. If the City is provided with these required notices and if the City determines that the
cause of the delay was not foreseeable, was beyond the control of the Contractor, and was not a
result of the fault or negligence of the Contractor, then the City will determine the total duration
of the delay and extend the time for performance of the Agreement accordingly. Unless the
delay is caused by the intentional interference of the City with the Contractor's performance,
Contractor shall make no claim for damages or any other claim other than for an extension of
time as herein provided by reason of any delays.
11. Suspension:
a. The City may, by written notice to the Contractor and at its convenience
for any reason, suspend the performance of all or any portion of the work to be performed
on the Construction Project ("Notice of Suspension"). The Notice of Suspension shall set
forth the time of suspension, if then known to the City. During the period of suspension,
Contractor shall use its best efforts to minimize costs associated with the suspension.
b. Upon Contractor's receipt of any Notice of Suspension, unless the notice
requires otherwise, Contractor shall: (1) immediately discontinue work on the date and to
the extent specified in the Notice of Suspension; (2) place no further orders or
subcontracts for materials, services, or equipment; (3) promptly make every reasonable
effort to obtain suspension upon terms satisfactory to City of all orders, subcontracts, and
rental agreements to the extent that they relate to the performance of the work suspended;
and (4) continue to protect and maintain the Project, including those portions on which
work has been suspended.
C. As compensation for the suspended work, Contractor will be reimbursed
for the following costs, reasonably incurred, without duplication of any item, and to the
extent that such costs directly resulted from the suspension: (1) a standby charge paid
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during the period of suspension which will be sufficient to compensate Contractor for
keeping, to the extent required in the Notice of Suspension, Contractor's organization and
equipment committed to the Project in standby status; (2) all reasonably incurred costs
for the demobilization of Contractor's and subcontractor's crews and equipment; (3) an
equitable amount to reimburse Contractor for the cost to protect and maintain the Project
during the period of suspension; and (4) an equitable adjustment in the cost of performing
the remaining portion of the work post-suspension if, as a direct result of the suspension,
the cost to Contractor of subsequently performing the remaining work on the
Construction Project has increased or decreased.
d. Upon receipt of written notice by the City to resume the suspended work
("Notice to Resume Work"), Contractor shall immediately resume performance of the
suspended work as to the extent required in the Notice to Resume Work. Any claim by
Contractor for time or compensation described in Section 11(e) shall be made within
fifteen (15) days after receipt of the Notice to Resume Work and Contractor shall submit
a revised Construction Schedule for the City's review and approval. Contractor's failure
to timely make such a claim shall result in a waiver of the claim.
e. No compensation described in Section 11(c) shall be paid and no
extension of time to complete the Construction Project shall be granted if the suspension
results from Contractor's non-compliance with or breach of the terms or requirements of
this Agreement.
12. 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 Construction
Project ("Termination Notice Due to Contractor's Fault"). The City may then take over
the Construction Project and complete it, either with its own resources or by re-letting the
contract to any other third party, and may immediately take possession of and use such
materials, appliances, tools, and equipment as may be on the site and which may be
necessary for the completion of the Construction Project.
b. In the event of a termination pursuant to this Section 12, Contractor shall
be entitled to payment only for those services Contractor actually rendered. In the case of
a lump sum or unit price contract, Contractor shall not be entitled to any further payment
until the Construction Project has been completed. Upon completion of the Construction
Project, if the unpaid balance of the Contractor's compensation exceeds the cost to the
City of completing the work, including all costs paid to any subcontractors or third
parties retained by the City to complete the Construction Project and all administrative
costs resulting from the termination ("City's Cost for Completion"), such excess shall be
paid to the Contractor. if the City's Cost for Completion exceeds the unpaid balance of
the Contractor's compensation, then Contractor and its sureties shall be liable for and
shall pay the difference, plus interest at the rate applicable to court judgments, to the City.
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C. Any termination provided for by this Section 12 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 12, 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.
13. 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 work on the Construction Project, 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 work on the
Construction Project, discontinue placing orders for materials, supplies, and equipment
for the Construction Project, and make every reasonable effort to 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, in
progress, or in transit to the construction site.
C. In the event of a termination pursuant to this Section 13, Contractor is
entitled to payment only for those services Contractor actually rendered and materials
actually purchased or which Contractor has made obligations to purchase on or before the
receipt of the Notice of Termination for City's Convenience, and reasonably incurred
costs for demobilization of Contractor's and any subcontractor's crews. It is agreed that
any materials that City is obligated to purchase from Contractor will remain the City's
sole property.
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.
14. 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
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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 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.
15. Representatives:
a. City's Representative: The City's Representative for the purpose of this
Agreement shall be Mike Gray, Facilities Superintendent 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 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 Robert Cok 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.
16. Locating Underground Facilities: Contractor shall be responsible for obtaining
and determining the location of any underground facilities, including but not limited to, the
location of any pipelines or utility supply, delivery, or service lines in accordance with the
provisions of§69-4-501, et seq., MCA. Contractor shall make every effort to avoid damage to
underground facilities and shall be solely responsible for any damage that may occur. If City
personnel assume responsibility for locating any underground facilities, this fact shall be noted in
writing prior to commencement of such location work.
17. 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, pay all fees
and charges in connection therewith, and perform all surveys and locations necessary for the
timely completion of the Construction Project.
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18. Ownership of Documents; Indemnification: All plans, designs, drawings,
specifications, documents, sample results and data, in whatever medium or format, originated or
prepared by or for Contractor in contemplation of, or in the course of, or as a result of this
Agreement or work on the Construction Project, shall be promptly furnished to the City ("City
Documents and Information"). All City Documents and Information shall be the exclusive
property of the City and shall be deemed to be works-for-hire. Contractor hereby assigns all
right, title, and interest in and to the City Documents and Information, including but not limited
to, all copyright and patent rights in and to the City Documents and Information. Neither party
grants to the other any express or implied licenses under any patents, copyrights, trademarks, or
other intellectual property rights, except to the extent necessary to complete its obligations to the
other under this Agreement.
19. 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.
20. Nondiscrimination: The Contractor shall have a policy to provide equal
employment opportunity in accordance with all applicable state and federal anti-discrimination
laws, regulations, and contracts. The Contractor shall 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.
21. Intoxicants; DOT Drug and Alcohol Regulations: Contractor shall not permit
or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, upon the
site of the Construction Project. 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.
22. Labor Relations:
a. In the event that, during the term of this Agreement and throughout the
course of Contractor's performance of the Construction Project. any labor problems or
disputes of any type arise or materialize which in turn cause any xvork on the
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Construction Project 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 resume work on the Construction Project 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 work on the Construction Project to resume and be completed within the time frames
set forth in the Construction Schedule at no additional cost to City.
b. 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.
23. Subcontractors:
a. Contractor may employ subcontractors for any work on the Construction
Project. Contractor shall provide City with a list of all subcontractors employed.
b. Contractor remains fully responsible for the acts and omissions of any
subcontractor, just as Contractor is for its own acts and omissions, and Contractor shall
remain frilly responsible and liable for the timely completion of the Construction Project.
C. Contractor is solely liable for any and all payments to subcontractors.
Contractor shall hold all payments received from the City in trust for the benefit of
subcontractors, and all such payments shall be used to satisfy obligations of the
Construction Project before being used for any other purpose. Contractor shall make any
payments due to any subcontractor within seven (7) days of Contractor's receipt of
payment, including a proportional part of the retainage Contractor has received from the
City. In the event of a dispute regarding any subcontractor's invoice, Contractor shall
promptly pay the undisputed amount to the subcontractor and notify the subcontractor in
writing of the amount in dispute and the reasons for the dispute. Any withholding of
payment must comply with the requirements of §28-2-2103, MCA. In the event
Contractor is unwilling or unable to make timely and proper payment to any
subcontractor, City may elect to withhold any payment otherwise due to Contractor and
upon seven (7) days' written notice to Contractor, may pay subcontractor by direct or
joint payment.
24. Indebtedness and Liens: Before City may make any final payment to
Contractor, Contractor shall furnish City with satisfactory proof that there are no outstanding
debts or liens in connection with the Construction Project. If the Contractor allows any
indebtedness to accrue to subcontractors or others during the progress of the work, and fails to
pay or discharge the same within five (5) days after demand, then City may either withhold any
money due to Contractor until such indebtedness is paid or apply the same towards the discharge
of the indebtedness. If any lien or claim is filed or made by any subcontractor, material supplier.
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or any other person, the Contractor shall immediately notify the City and shall cause the same to
be discharged of record within thirty (30) days after its filing.
25. Hazard Communication: Contractor shall comply with all hazard
communication requirements dictated by the Envirormental Protection Agency, the Montana
Department of Agriculture, OSHA, Hazard Communications Standard, 29 CFR 1910.1200, and
applicable City ordinances. Contractor shall supply a chemical list, the associated material
safety data sheets (MSDS), and other pertinent health exposure data for chemicals that the
Contractor's, subcontractor's or the City's employees may be exposed to while working on City
property during the course of the Construction Project. One copy of this documentation must be
delivered to City to the attention of the City's Representative. This documentation must be
delivered before work involving these chemicals may commence.
26. Accounts and Records: During the term of this Agreement and for two (2) years
following the City's final acceptance of the Construction Project, Contractor shall maintain
accounts and records related to the Construction Project. Upon reasonable notice, City shall
have the right to inspect all such accounts and records, including but not limited to, Contractor's
records, books, correspondence, instructions, drawings, specifications, field and site notes,
receipts, invoices, bills, contracts, or other documents relating to the Construction Project.
27. Indemnification; Insurance; Bonds:
a. 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; or
(ii) any negligent, reckless, or intentional misconduct of any of the Contractor's agents.
b. 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 indemnitee(s) which would otherwise exist as to
such indemnitee(s).
C. Contractor's indemnity under this Section shall be without regard to and
without any right to contribution from any insurance maintained by City.
d. Should any indemnitee described herein be required to bring an action
against the Contractor to assert its right to defense or indemnification under this
Ao reement or under the Contractor's applicable insurance policies required below the
indemnitee shall be entitled to recover reasonable costs and attorney fees incurred in
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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 indemnitee for a claim(s) or any portion(s)thereof.
e. 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.
f. 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.
g. These obligations shall survive termination of this Agreement and the
services performed hereunder.
h. 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 shown below:
• Workers' Compensation—not less than statutory limits;
• Employers' Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate;
• Commercial General Liability - $1,000,000 per occurrence; $2,000,000 amlual
aggregate;
• Products and Completed Operations—$1,000,000;
• Automobile Liability - $1,000,000 property damage/bodily injury; $2,000,000
annual aggregate (all owned,hired, non-owned vehicles);
• Builder's Risk/Property Insurance at least as broad as that provided by the ISO
special causes of loss form (CP10 30)naming at a minimum the City in an
amount equal to greater of Contractor's compensation or full replacement value of
the work (covering at a minimum all work, buildings, materials and equipment,
whether on site or in transit, loss due to fire, lightening, theft, vandalism,
malicious mischief, earthquake, collapse, debris removal, demolition occasioned
by enforcement of laws. water damage, flood if site within a flood plain, repair or
replacement costs, testing and start-up costs) on an all risk coverage basis. This
insurance must include waivers of subrogation between the City and Contractor to
Page 12 of 15
the extent that damage to the Construction Project or City Hall is covered by other
insurance;
• Owner's and Contractor's Protective Liability: one policy designating the City
(including its agents, representatives, employees, and officers) as the insured and
another independent policy designated the City's Representative (including its
consultants, consultants, agents and employees) as the insured on the declarations
with both policies covering: (i) operations performed by the Contractor under this
Agreement for the City; and (ii) the City's and City's Representatives acts or
omissions, including negligent acts, in connection with its general supervision of
the work of the Contractor's and its subcontractors - $1,000,000 per occurrence;
$2,000,000 aggregate;
• Contractual Liability Insurance (covering the Contractor's indemnity
obligations described in this Agreement) - $1,000,000 per occurrence $2,000,000
aggregate
The amounts of insurance provided shall be exclusive of defense costs. 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 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 Cite must approve all insurance coveral4e and endorsements prior to the
Contractor commencinL,work.
i. Pursuant to the City's authority provided for in 18-2-201(4), the
Contractor shall not be required to provide bonds as required by 18-2-201(1) under this
Agreement.
28. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all
appropriate employee withholdings. Contractor understands that all contractors or
subcontractors working on a publicly funded project are required to pay or have withheld from
earnings a license fee of one percent (1%) of the gross contract price if the gross contract price is
Five Thousand Dollars ($5,000) or more. This license fee is paid to the Montana Department of
Revenue.
29. 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.
Page 13 of 15
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 shall be resolved in a court of
competent jurisdiction in compliance with the Applicable Law provisions of this
Agreement.
30. Survival: Contractor's indemnification and warranty obligations shall survive the
termination or expiration of this Agreement for the maximum period allowed under applicable
law.
31. Headinus: 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.
32. Waiver: A waiver by City of any default or breach by Contractor of any
covenants, terms, or conditions of this Agreement does not limit City's right to enforce such
covenants, terms, or conditions or to pursue City's rights in the event of any subsequent default
or breach.
33. Severability: If any portion of this Agreement is held to be void or
unenforceable, the balance thereof shall continue in effect.
34. Applicable Law: The parties agree that this Agreement is governed in all
respects by the laws of the State of Montana.
35. Binding Effect: This Agreement is binding upon and inures to the benefit of the
heirs, legal representatives, successors, and assigns of the parties.
36. Amendments: This Agreement may not be modified, amended, or changed in
any respect except by a written document signed by all parties.
37. 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.
38. Counterparts: This Agreement may be executed in counterparts, which together
constitute one instrument.
39. Assignment: Contractor may not assign this Agreement in whole or in part
without the prior written consent of the City. No assignment will relieve Contractor of its
responsibility for the performance of the Agreement and the completion of the Construction
Project. Contractor may not assign to any third party other than Contractor's subcontractors on
the Construction Project, the right to receive monies due from City without the prior written
consent of City.
Page 14 of 15
40. Authority: Each party represents that it has full power and authority to enter into
and perform this Agreement and the person signing this Agreement on behalf of each party has
been properly authorized and empowered to sign this Agreement.
41. Independent Contractor: The parties agree and acknowledge that in the
performance of this Agreement and the completion of the Construction Project, Contractor shall
render services as an independent contractor and not as the agent, representative, subcontractor,
or employee of the City. The parties further agree that all individuals and companies retained by
Contractor at all times will be considered the agents, employees, or independent contractors of
Contractor and at no time will they be the employees, agents, or representatives of the City.
42. 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.
IN WITNESS WHEREOF, Contactor and City have caused this Agreement to be
executed, effective on the date written above, and intend to be legally bound thereby.
CITY OF BOZEMAN, MONTANA CONTRACTOR
By: By/Naine:
�
DennisCity Manager C
CV\LA(,L Wirvh f'tC l� Pri �` QIYII C�
r
Title:
APPROVE AS TO F (§18-2-406, MCA):
By:
eg S an, City ttorney
Page 15 of 15
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