HomeMy WebLinkAbout17- Professional Services Agreement - Sanderson Stewart - Downtown Stormwater Treatment DO
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PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this 14j"'day of kjNJEM��, 2017, 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, _Sanderson Stewart„ 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 Exhibit "A" and by this reference
made a part hereof.
2 per-m/7:f f ti Date Datel This Agreement nt ff� five upon the date of its exeeution
and will termina4e on the day of 201 -N/A
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
Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules,
Professional Services Agreement for[Downtown Stormwater Treatment]
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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 terms and provisions of
the City's personnel policies handbook and may not be considered a City employee for workers'
compensation or any other propose. 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, 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, and as such, term
is defined by §18-2-401(1), MCA. When making assignments of work, Contractor shall use
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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 effective 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
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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
willful 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
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 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.
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 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
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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:
• 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 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 terminated or Contractor's decision to terminate any required insurance coverage for any
reason.
The City must approve all insurance coveraLle and endorsements prior to the
Contractor commencing work.
S. 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.
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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.
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 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.
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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:
a. City's Representative: The City's Representative for the purpose of this
Agreement shall be Kellen Gamradt 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 James
Goehrung 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 _Danielle Scharff 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.
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
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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: 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. 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 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 his employees and agents in safe work practices.
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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 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 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: That in the event it becomes necessary for either Party
of this Agreement 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 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 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
Professional Services Agreement for[Downtown Stormwater Treatment]
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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.
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.
**** END OF AGREEMENT EXCEPT FOR SIGNATURES
Professional Services Agreement for[Downtown Stormwater Treatment]
FY 2017—FY 2018
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IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and
year first above written.
CITY OF BOZEMAN,MONTANA Sanderson Stewart
C TRACTOR(Type Name Above)
By CBy �+
Andrea Surratt, City M nager
Print Name: l4 Le
Print Title: r
"PR D AS TO FORM:
B
Gre llivan, Bozeman City Attorney
Professional Services Agreement for[Downtown Stormwater Treatment]
FY 2017—FY 2018
Page 11 of 11
Vl�fle'
STEWART
November 3, 2017
Mr. Kellen Gamradt, PE
City of Bozeman
20 E. Olive Street
Bozeman,MT 59715
Via email: kgamradt@bozeman.net
Reference: Proposal for Surveying Services—Downtown Stormwater Treatment
Dear Kellen:
The following is a proposal for Sanderson Stewart to provide surveying services in connection with
your project described as follows:
Topographic survey for various locations in Downtown Bozeman for stormwater treatment
design by the City of Bozeman.
If this proposal is acceptable to you, please execute this agreement where noted. This agreement,
along with the attached Terms and Conditions sets forth the terms of the contract between the City
of Bozeman (hereinafter "Client") and Sanderson Stewart. The attached Terms and Conditions are
expressly incorporated into and made part of the contract between Client and Sanderson Stewart.
Overview
Provide topographic surveying services in the following locations in Downtown Bozeman:
1. Black and Alleyway (between Main and Mendenhall)
2. Bozeman and Alleyway (between Main and Mendenhall)
3. Rouse and Alleyway (between Main and Mendenhall)
The areas to be surveyed are shown in detail on the attached figures.A minimum of two control
points will be set in each area. Measure downs will be provided for all existing storm and sanitary
sewer manholes and water valves. We will search for property pins within the topographic areas
provided by the City,but a complete boundary survey is not anticipated to be needed. Drafting
services will be provided for preparation of a base drawing in AutoCAD format.
Initial _ FHOTFIRM I To Plan and Design
Enduring Communities...
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www.sandersonstewart. com
Mr. Kellen Gamradt,PE
November 3, 2017
Page 2
Services not set forth above as basic services are specifically excluded from the scope of Sanderson
Stewart's services. Sanderson Stewart assumes no responsibility to perform any services not
specifically listed as basic services. If the Client and Sanderson Stewart agree in writing via an
amendment to this agreement, Sanderson Stewart will provide additional services as requested by the
Client.
Notwithstanding the foregoing, Sanderson Stewart shall have the right,but not the obligation, to
provide,without advance authorization from the Client, other services made necessary by the default
of the contractor or Client, or by deficiencies, delays, or defects in the work provided by the
contractor. Sanderson Stewart shall provide written notice of the provision of such services as soon
as reasonably possible.
Project Staff
The following Sanderson Stewart staff will be assigned to the project:
Project Manager: Danielle Scharf,Bozeman Regional Director
Survey Staff: Keith Springer, Staff Land Surveyor
Drafting/Design: Curtis Kramer,Designer
Project Schedule
We can begin work on this project within three (3) working days of client authorization. Once we
have received your authorization to proceed,we can schedule this work.
Fee and Billing Arrangements
Invoice and Billing: Sanderson Stewart will bill for its services on a lump sum basis in the amount
of 4 5$ , 00.00. Sanderson Stewart shall submit invoices to the Client for work accomplished during
each calendar month. For services provided on a lump sum basis, the amount of each monthly
invoice shall be determined on the "percentage of completion method"whereby Sanderson Stewart
will estimate the percentage of the total work (provided on a lump sum basis) accomplished during
the invoicing period. Monthly invoices shall include, separately listed, any charges for services for
which time charges and/or unit costs shall apply. Such invoices shall also include, separately listed,
any charges for consultants retained by Sanderson Stewart, and reimbursable costs. Such invoices
shall be submitted by Sanderson Stewart as soon as possible after the end of the month in which the
work was accomplished and shall be due and payable by the Client upon receipt. The Client agrees
that the monthly invoice from Sanderson Stewart is correct, conclusive,and binding on the Client
unless the Client,within 20 working days from the date of receipt of such invoice,notifies
Sanderson Stewart in writing of alleged inaccuracies, discrepancies, errors in the invoice, or the need
for additional backup.
Initial
Mr. Kellen Gamradt,PE
November 3, 2017
Page 3
Entire Agreement: This agreement,including the attached Terms and Conditions incorporated into
and made part of this contract, constitutes the entire agreement between Sanderson Stewart and
Client. It supersedes all prior communications,understandings and agreements,whether oral or
written. It shall become effective after being signed and dated by both parties; and,upon each page
being initialed by Sanderson Stewart.Any amendment or modification to this contract must be
written and executed by both Sanderson Stewart and Client.
Conclusion
Kellen,we look forward to working with you on this project. Please call me at 406/922-4325 if you
have any questions regarding this proposal. Otherwise,if it meets your approval, simply return a
signed copy of this agreement. Thank you.
incerely,
anielle It. Scharf PE P OE EED A,L P
Associate Principal/Bozeman Regional Director
I hereby authorize SANDERSON STEWART to proceed as described above and,by my signature,
acknowledge and agree to the Terms and Conditions attached to and made part of this contract.
Moreover, an electronic or faxed copy of my signature shall be as effective as any original:
By 74>t r
Client Title faate
B /14 /
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Sanderson Stewart Aide ate
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O:Boz_DT_Stormwater_Topo_Prpsl_110317_SC
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Downtown Treatment Phase 2 (10/24/2017)
1. Black and Alleyway(between Main and Mendenhall)
a. Drainage Basin-35 Acres
b. Inlet Pipe Size—12" (Stormwater Plat N-15 is unclear, need to verify)
c. Notes: Add inlets on east and west side of Black before unit.
d. Map:
t
2. Black and Alleyway(between Main and Mendenhall)
a. Drainage Basin-30 Acres
b. Inlet Pipe Size—12" (Stormwater Plat N-15 is unclear, need to verify)
c. Notes: Add inlets on east and west side of Bozeman before unit.
d. Map:
AMON
i
3. Rouse and Alleyway(between Main and Mendenhall)
a. Drainage Basin-55 Acres
b. Inlet Pipe Sizes—South 12" and East 12" (Stormwater Plat K-15, need to verify)
c. Notes: Keep out of MDT right-of-way and Rouse reconstruction extent
d. Map:
1
SANDERSON VVIe
STEWART
TERMS AND CONDITIONS
INTEREST,SUSPENSION,AND COLLECTION COSTS: Any invoice not paid within 30 days of date of invoice shall bear interest at 1.5 percent
per month on the unpaid balance. If CLIENT fails to make payment within 45 days of the date of any invoice,SANDERSON STEWART shall have the
right,but not the obligation,to suspend work and withhold deliverables until payment in full,including interest,is received.SANDERSON SIEWART shall
have no liability whatsoever to the CLIENT for any costs or damages as a result of such suspension. If SANDERSON STEWART resumes services after
payment by CLIENT,the time schedule and compensation shall be equitably adjusted to compensate for the period of suspension plus any other reasonable
time and expense necessary for SANDERSON STEWART to resume performance.
If an invoice remains unpaid for more than 90 days,SANDERSON STEWART shall have the right,but not the obligation,to initiate collection procedures.
If the CLIENT fails to make payment when due and SANDERSON STEWART incurs any costs in order to collect sums from the CLIENT,the CLIENT
agrees that all such collection costs incurred shall immediately become due and payable to SANDERSON STEWART. Collection costs shall include,but
are not limited to,legal fees,collection agency fees and expenses,court costs,collection bonds,and reasonable staff costs for SANDERSON STEWART's
staff for time spent in efforts to collect. This obligation of CLIENT to pay SANDERSON STEWART's collection costs shall survive the term of this
Agreement or any termination by either party.
It is understood and agreed that SANDERSON STEWART's services under this Agreement do not include participation,whatsoever,in any litigation.
Should such services be required, a Supplemental Agreement may be negotiated between the CLIENT and SANDERSON STEWART describing the
services desired and providing a basis for compensation to SANDERSON STEWART.
TERMINATION OF SERVICES FOR NON-PAYMENT: If the CLIENT fails to make payment to SANDERSON STEWART in accordance with
this Agreement, this shall constitute a material breach of this Agreement and shall be cause for termination of this Agreement by SANDERSON
STEWART.
SET-OFFS, BACI{CHARGES,AND DISCOUNTS: Payment of invoices shall not be subject to any discounts or set-offs by the CLIENT unless
agreed to in writing by SANDERSON STEWAItI'. Payment to SANDERSON STEWART for services rendered and expenses incurred shall be due and
payable regardless of any subsequent suspension or termination of this Agreement by either party.
INFORMATION PROVIDED BY CLIENT OR OTHERS: CLIENT agrees to provide to SANDERSON STEWART all available information
necessary to perform duties as outlined in the attached scope of services. The CLIENT shall furnish,at CLIENT'S expense,all information,requirements,
reports,data,surveys,and instructions required. SANDERSON STEWART is entitled to rely on the accuracy and completeness of all such information
provided.
CLIENT shall furnish right-of-way entry onto the project site for SANDERSON STEWART'to perform necessary field measurements or studies.
OWNERSHIP OF INSTRUMENTS OF SERVICE: All reports,drawings,specifications,computer files, field data,notes,and other documents and
instruments prepared by SANDERSON STEWART as instruments of service shall remain the property of SANDERSON STEWART. SANDERSON
SIEWART retains all common law,statutory and other reserved rights,including the copyright to all instruments of service. If any instruments of service
must be filed with governmental agencies,SANDERSON STEWART will furnish copies to the CLIENT upon request. The CLIENT will not reuse or
modify the instruments of service without SANDERSON STEWART's prior written authorization. The CLIENT agrees,to the fullest extent permitted by
law, to defend, indemnify, and hold harmless SANDERSON STEWART, its officers, directors, employees, and agents, from and against any and all
damages,claims,liabilities,costs,or suits,including reasonable attorney's fees and defense costs,arising from,allegedly arising from,or in any way connected
with,the unauthorized reuse or modification of any instrument of service by any person or entity other than SANDERSON STEWART.
ELECTRONIC FILES: SANDERSON STEWART may furnish drawings, reports, or data on electronic media generated and furnished by
SANDERSON STEWART The CLIENT understands and agrees that all such electronic files are instruments of service of SANDERSON STEWART,
that SANDERSON STEWART shall be deemed the author,and shall retain all common law,statutory law,and other rights,including copyrights. The
CLIENT agrees not to reuse these electronic files,in whole or in part,for any other purpose other than for the project. The CLIENT agrees not to transfer
these electronic files to others without the prior written consent of SANDERSON STEWART The CLIENT further agrees to waive all claims against
SANDERSON STEWART resulting in any way from any unauthorized changes to or reuse of the electronic files for any other project by anyone other than
SANDERSON STEWART.
The CLIENT is aware that differences may exist between the electronic files delivered and the printed hard-copy construction documents. In the event of a
conflict between the signed construction documents prepared by SANDERSON STEWART and electronic files, the signed or sealed hard-copy
construction documents shall govern.
Additionally,the CLIENT agrees,to the fullest extent permitted by law,to defend,indemnify,and hold harmless SANDERSON STEWART,its officers,
directors, employees,and agents,against all damages,liabilities, claims,or suits,including reasonable attorney's fees and defense costs,arising from any
changes made by anyone other than SANDERSON STEWART, or from any reuse of the electronic files without the prior written consent of
SANDERSON STE:WAIt'I'.
Under no circumstances shall delivery of electronic files for use by the CLIENT be deemed a sale by SANDERSON STEWART;and SANDERSON
STEWART makes no warrantees,either express or implied,of merchantability or fitness for any particular purpose. SANDERSON STEWART shall not
be liable for indirect or consequential damages as a result of the CLIENT's use or reuse of electronic files.
OPINIONS OF PROBABLE COST: CLIENT hereby acknowledges that SANDERSON STEWART cannot warrant that any opinions of probable cost
provided by SANDERSON STEWART will not vary from actual costs incurred by the CLIENT. The CLIENT understands that SANDERSON
91T,WARl'has no control over the cost or availability of labor,equipment,materials,or over market conditions or the Contractor's method of pricing.
SANDERSON STEWART makes no warranty, express or implied,that the bids or the negotiated cost of the work will not vary from SANDERSON
S'IEWARl"s opinion of probable cost.
LIMIT OF LIABILITY: In recognition of the relative risks and benefits of the project to both the CLIENT and SANDERSON SIEWART,the risks
have been allocated such that the CLIENT agrees to limit the liability of SANDERSON STEWART to the CLIENT for any and all claims, cause or
combination of causes,including attorney'-; fees,costs,and expert witness fees so that that the total aggregate liability of SANDERSON STEWART to
CLIENT shall not exceed $50,000.00 or SANDERSON STEWART's total fees for services on this project,whichever is greater. It is intended that this
limitation apply to any and all claims,liability or causes of action,however alleged or arising.
CONSTRUCTION SERVICES; If, under this Agreement, professional services are provided during the construction phase of the project,
SANDERSON STEWART shall not be responsible for or have control over means, methods, techniques, sequences, or procedures, or for safety
precautions and programs in connection with the Work;nor shall SANDERSON STEWART be responsible for the Contractor's failure to carry out the
Work in accordance with the Contract Documents or for the Contractor's failure to comply with the applicable laws,ordinances,rules,or regulations. These
rights and responsibilities are solely those of the Contractor.
SANDERSON STEWART shall not be responsible for any acts or omissions of the Contractor, subcontractor,or any person or entity performing any
portion of the work. SANDERSON STEWART does not guarantee or warrant the performance of any Contractor and shall not be responsible for the
Contractor's failure to perform its work in accordance with the Contract Documents or any applicable codes,laws,rules or regulations.
JOB SITE SAFETY: Neither the professional activities of SANDERSON STEWART, nor the presence of SANDERSON STEWART at the
construction/project site, shall relieve the general contractor and all subcontractors of any of their responsibilities and duties to perform the work in
accordance with the contract documents and to comply with any health or safety precautions required by any regulatory agencies, SANDERSON
91TWART does not have authority to control any construction contractor or its employees in connection with their work or any health or safety programs
or procedures, The CLIENT agrees that the contractor and subcontractors are solely responsible for job site safety and warrants that this intent shall be
carried out in the CLIENT's contract with the general contractor. The CLIENT also agrees that CLIENT and SANDERSON STEWART shall be
indemnified by the general contractor for any such claims,and shall be made additionally insured under the general contractor's insurance policies.
RECOMMENDATIONS BY SANDERSON STEWART: Sanderson Stewart may provide advice and/or recommendations to the CLIENT during
Sanderson Stewart's provision of services for the CLIENT's project. If the CLIENT declines to follow the advice and/or recommendations provided by
Sanderson Stewart, the CLIENT agrees that Sanderson Stewart shall not have any liability for adverse consequences or damages resulting from the
CLIENT's failure to follow the advice and/or recommendations of Sanderson Stewart.Additionally,the parties agree that the CLIENT's failure to follow
advice and/or recommendations of Sanderson Stewart may be cause for Sanderson Stewart to immediately terminate this Agreement at Sanderson Stewart's
sole discretion.
PERMITTING: SANDERSON STEWART shall assist the CLIENT in applying for permits and approvals where required by law. In cases where the
scope of services requires SANDERSON S'IEWAI(r to submit,on behalf of the CLIENT,a permit application and/or approval by a third party to this
contract,SANDERSON ST'1 RWAIrr does not make any warranties,guarantees,or representations as to the success of SANDERSON S'1`EWART's effort
on behalf of the CLIENT, Payment for services rendered by SANDERSON S'TRWATI'is not contingent upon the successful acquisition of these permits.
NO ASSIGNMENT WITHOUT CONSENT: Neither party may assign this Agreement without the written agreement of the other party,
TERMINATION: In the event of termination of this Agreement by either party,the CLIENT'shall,within 15 days of termination,pay SANDERSON
STEWART for all services rendered and reimbursable costs incurred by SANDERSON STIRWART up to the date of termination,
The CLIENT may terminate this Agreement for convenience and without cause upon 21 calendar days'written notice.
Either party may terminate this Agreement for cause upon 10 calendar days'written notice for the following reasons:
1, Substantial failure by either party to perform in accordance with this Agreement;
2. Assignment of this agreement without the written consent of the other party;
3. Suspension of the project or SANDERSON S'TEWAR's services for more than 60 calendar days,consecutive or aggregate;
4. Material changes in the conditions under which this Agreement was executed,the Scope of Services,the nature of the project,or the
failure of the parties to reach an agreement on compensation and/or schedule adjustments necessitated by such changes.
In the event of a termination not the fault of SANDERSON STEWART, the Client shall pay SANDERSON STEWART, in addition to payment for
services rendered and reimbursable expenses incurred,all expenses incurred by SANDERSON STEWART in connection with the orderly termination of
this Agreement,including,but not limited to,demobilization,reassignment of personnel,associated overhead costs,and all other expenses resulting from the
termination.
CONSEQUENTIAL DAMAGES: Notwithstanding any other provision in this Agreement,neither the CLIENT nor SANDERSON STEWART,their
respective officers,directors,shareholders,partners,employees,agents,members,subconsuhtants,or employees shall be liable to the other or shall make any
claim for any incidental,indirect or consequential damages arising out of or in any way connected to the project or this Agreement. This mutual waiver of
consequential damages shall include, but is not limited to,loss of use, loss of profit, loss of business, loss of income, loss of reputation, or any other
consequential damages that either party may have incurred from any cause of action.
DISPUTE RESOLUTION, VENUE, AND CHOICE OF LAW: Any claim arising out of or related to this Agreement (except for Collection
Procedures employed by SANDERSON STEWART and those waived or barred as provided elsewhere in this Agreement),shall be subject to mediation as
a condition precedent to arbitration or to the institution of legal or equitable proceedings by either party. The parties shall endeavor to resolve their claims
by mediation. Either party may file a request for mediation, Mediation shall proceed in advance of legal or equitable proceedings,which shall be stayed
pending mediation for a period of sixty(60)days from the date of filing,unless stayed for a longer period by agreement of the parties or by court order. The
parties shalt share the mediator's fee and any filing fees equally. The mediation shall be held in Billings,Montana. Any agreements reached in mediation
shall be enforceable as settlement agreements by any court having jurisdiction.
Venue for any arbitration or litigation arising out of this Contract shall be in the Thirteenth Judicial District,Yellowstone County,Montana. This Agreement
shall be governed by,and interpreted under,the law of the State of Montana.
ENTIRE AGREEMENT: This Agreement is the entire agreement between SANDERSON STEWART and CLIENT. It supersedes all prior
communications, understandings, and agreements, whether oral or written. Any amendment or modification to this Agreement must be written and
executed by both SANDERSON STEWART and CLIENT.
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