HomeMy WebLinkAbout18- Professional Services Agreement - Morrison-Maierle, Inc. - 2018 to 2021 Materials Testing PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this day ofQ�L. , 2018, 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, MORRISON MAIERLE, INC., hereinafter referred to as
"Engineer."
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 Engineer 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 terminate on the 30'h day of June,2021.
3. Scope of Work: Engineer 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 Engineer 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 Engineer 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. Engineer's Representations: To induce City to enter into this Agreement, Engineer
makes the following representations:
a. Engineer 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,
and regulations that in any manner may affect cost, progress or performance of the Scope of
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I
Services.
b. Engineer 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 Engineer Status/Labor Relations: The parties agree that Engineer is
an independent Engineer for purposes of this Agreement and is not to be considered an employee of
the City for any purpose. Engineer is not subject to the terms and provisions of the City's personnel
policies handbook and may not be considered a City employee for workers' compensation or any
other purpose. Engineer is not authorized to represent the City or otherwise bind the City in any
dealings between Engineer and any third parties.
Engineer 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. Engineer shall maintain workers' compensation coverage for all members and employees of
Engineer's business, except for those members who are exempted by law.
Engineer 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 Engineers.
Engineer 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.
Engineer shall post a legible statement of all wages and fringe benefits to be paid to the
Engineer'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 Engineer'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 tennination of this
Agreement.
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Engineer 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 perinitted by law, Engineer 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
Engineer; (ii) any negligent, reckless, or intentional misconduct of any of the Engineer's agents.
For the professional services rendered, to the fullest extent permitted by law, Engineer
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 Engineer or Engineer'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).
Engineer'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 Engineer
to assert its right to defense or indemnification under this Agreement or under the Engineer'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 Engineer 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
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Agreement, the City may elect to represent itself and incur all costs and expenses of suit.
Engineer 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 tennination of this Agreement and the services performed
hereunder.
In addition to and independent from the above, Engineer shall at Engineer'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 Engineer in this Section. The insurance coverage shall not contain any exclusion for
liabilities specifically assumed by the Engineer 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 Engineer
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; $2,000,000
annual aggregate; 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 Commmercial 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 Engineer commencing work. Engineer shall notify City
within two (2) business days of Engineer's receipt of notice that any required insurance coverage
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will be tenninated or Engineer's decision to terminate any required insurance coverage for any
reason.
The City must approve all insurance coverage and endorsements prior to the Engineer
commencing work.
8. Termination for Engineer's Fault:
a. If Engineer refuses or fails to timely do the work, or any part thereof, or fails
to perfonn 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 Engineer's right to proceed with all or any part of the work ("Tenmination Notice Due to
Engineer'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, Engineer shall be
entitled to payment only for those services Engineer 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, Engineer 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 Citv'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 Engineer ("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 Engineer.
b. Upon receipt of the Notice of Termination for City's Convenience, unless
otherwise directed in the Notice, the Engineer 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
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orders or contracts upon terms satisfactory to the City. Engineer 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, Engineer is entitled
to payment only for those services Engineer 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
Engineer for its performance of this Agreement. Engineer 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.
10. Limitation on Engineer's Damages; Time for Asserting Claim:
a. In the event of a claim for damages by Engineer under this Agreement,
Engineer's damages shall be limited to contract damages and Engineer 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 Engineer wants to assert a claim for damages of any kind or
nature, Engineer 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 Engineer fails to provide such notice, Engineer 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 Gainradt, P.E. (Engineering Inspector) 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 Craig Woolard 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, Engineer may direct its
communication or submission to other designated City personnel or agents as listed above
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and may receive approvals or authorization from such persons.
b. Engineer's Representative: The Engineer's Representative for the purpose
of this Agreement shall be James Nickelson, PE (Project Manager) or such other individual
as Engineer shall designate in writing. Whenever direction to or communication with
Engineer is required by this Agreement, such direction or communication shall be directed
to Engineer's Representative; provided, however, that in exigent circumstances when
Engineer's Representative is not available, City may direct its direction or communication to
other designated Engineer personnel or agents.
12. Permits: Engineer 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 govermnental authorities, and pay all
fees and charges in connection therewith.
13 Laws and Regulations: Engineer 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 Engineer will have a policy to provide equal employment
opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations,
and contracts. The Engineer 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 Engineer 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 Engineer shall require these nondiscrimination terms of its sub-Engineers
providing services under this agreement.
15. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Engineer
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
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City property or in the performance of any activities under this Agreement. Engineer 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 Engineer shall be
obligated to furnish such proof.
The Engineer shall be responsible for instructing and training the Engineer's employees and
agents in proper and specified work methods and procedures. The Engineer shall provide
continuous inspection and supervision of the work performed. The Engineer is responsible for
instructing his employees and agents in safe work practices.
16. Modification and Assignability: This Agreement may not be enlarged, modified or
altered except by written agreement signed by both parties hereto. The Engineer may not
subcontract or assign Engineer's rights, including the right to compensation or duties arising
hereunder, without the prior written consent of City. Any subEngineer or assignee will be bound by
all of the terms and conditions of this Agreement.
17. Reports/Accountability/Public Information: Engineer agrees to develop and/or
provide documentation as requested by the City demonstrating Engineer's compliance with the
requirements of this Agreement. Engineer 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 Engineer pursuant to this Agreement was used in
compliance with this Agreement and all applicable provisions of federal, state, and local law. The
Engineer 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 terns
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: Engineer is obligated to pay all taxes of any kind or nature and make all
appropriate employee withholdings.
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21. Dispute Resolution:
a. Any claim, controversy, or dispute between the parties, their agents,
employees, or representatives shall be resolved first by negotiation between senior-level
personnel from each party duly authorized to execute settlement agreements. Upon mutual
agreement of the parties, the parties may invite an independent, disinterested mediator to
assist in the negotiated settlement discussions.
b. If the parties are unable to resolve the dispute within thirty(30) days from the
date the dispute was first raised, then such dispute may only be resolved in a court of
competent jurisdiction in compliance with the Applicable Law provisions of this Agreement.
22. Survival: Engineer'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
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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 agreement, be extended for a
period of one year by written agreement of the Parties. In no case, however, may this Agreement run
longer than June 30 2022
**** END OF AGREEMENT EXCEPT FOR SIGNATURES **YY
IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and
year first above written.
CITY OF BOZEMAN, MONTANA Morrison Maierle,Inc.
ENGINEER(Type Name ove^)
B U7 By
Andrea Surratt, City Manager
Print Name:
Print Title:
APPROVED AS TO ORM:
By
Greg SWivan, Bozeman�C4 Attorney
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Attachment A
Scope of Services
2018-2020 Materials Testing
Material testing is to be performed in compliance with the City of Bozeman's Design Standards
and Specification Policy for soils, aggregates, concrete, and asphalt. Material testing is to be
provided based on an on-call basis for the projects listed below plus other projects that may be
identified over the course of the construction season.
Anticipated 2018 Projects
• Baxter Lane (7th to 191h)
• Baxter Lane (19th to Davis)
• Durston/Ferguson Roundabout
• Cottonwood (Babcock to Durston)
• Oak Street (71h to 19th)
• South Tracy (Olive to Harrison)
• Sourdough Water Transmission Main — Phase 1
• Annual Street Improvements
• Annual Sidewalk and Curb Improvements
• Sunset Hills Cemetery/Lindley Park Irrigation Project
The City or City's consultant will be providing a Resident Project Representative (RPR)that will
be responsible for contacting Morrison Maierle to schedule testing for the various projects and
to outline testing locations and frequencies. Morrison Maierle will provide a contact person and
backup contact person for the RPRs to contact.
Results of failed tests will be provided to the RPR upon the conclusion of the test. All testing
results will be summarized in a weekly report specific to each project and will be provided to the
RPR and the City.
Testing is to be provided at the rates listed on the Laboratory Rate Schedule, Labor Rate
Schedule and Expense Rate Schedule provided below:
Laboratory Rate Schedule
Test Rate er Test
Proctor—AASHTO T180— Material less than 3" $420
Sieve Analysis—AASHTO T27 (ASTM C136)— $185
Materials less than 3" less than #4 washed
Sieve Analysis —AASHTO T27 (ASTM C136)— $450
Materials 3" to 4" less than #4 washed
Atterber Limits - AASHTO T89, T90 ASTM D4318 $180
Concrete Cylinders — Strength Test—4" Cylinders $150 per set of 4
Bituminous Field Marshall —AASHTO T1559 (ASTM $550
245
Asphalt Core -Thickness and Density $80 per set of 3
Laboratory rate includes labor and expenses for testing and reporting once the sample is
delivered and cataloged into the lab for processing.
Labor Rate Schedule
Classification Rate ger Hour
Technical Intern ** $70
Administrative Coordinator 1 ** $73
Project Coordinator II ** $84
Engineer Intern 1 $102
Resident Project Representative 1 $104
Engineer Intern II $114
Resident Project Representative II $120
Senior Engineer 1 $146
Senior Engineer II $165
Supervising Engineer III $196
** Rate subject to time and one half for overtime.
Expense Rate Schedule
Expense Rate
Nuclear Density Meter $10/hour or$35/da
Vehicle $0.699/mile
Asphalt Coring Cost plus 5%
Miscellaneous Expenses Cost plus 5%
Budget
The total budget for testing in 2018 is $165,000 for this professional services agreement. The
overall project budget for the various projects that testing is planned for in 2018 is approximately
$18,000,000. Actual effort will be billed per the rate schedules and will be dependent on the
amount of testing requested.
END
Morrison
ON mom Mailerle 2880 TECHNOLOGY BLVD.W. • P.O.BOX 1113 • BOZEMAN,MT 59771
engineers surveyors planners scientists 406.587.0721 • www.nm.net
March 30, 2018
City of Bozeman Engineering Department
Attn: Kellen Gamradt, PE
20 East Olive Street
PO Box 1230
Bozeman, MT 59771-1230
Re: Materials Testing
Dear Kellen:
Based on our discussions and your expectations we have revised the budget for the project.
Enclosed is three signed contracts with the scope of work attached.
Also enclosed is a revised spreadsheet that shows how the overall effort was estimated. The
estimate is based on the estimated number of tests and the estimated cost of each test, hours for
compaction testing, hours for reporting, coordination between the numerous RPRs and
technicians, and project management. The budget assigned to each project is based on the
estimated testing effort, prorating the effort for reporting etc., and by reviewing the project budgets
for the individual projects to gauge the magnitude of the effort. A detailed review of final plans for
the individual projects would allow us to potentially estimate a more precise cost for each project
but actual effort will vary significantly based on the RPR and contractor. It is not intended that
this spreadsheet be utilized as an attachment to the contract.
If you have any questions in regards to the scope, budget or contract, please contact me.
Sincerely,
Morrison-Maierle, Inc.
ames Nickelson, PE
Project Manager
NA0417\081 Material Testing\Contracts\Contract Transmittal 3 30 2018.docx
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