HomeMy WebLinkAboutEx 2 BPC 05102018 PSA Janitorial Bridger Park GaragePROFESSIONCES AGREEMENTTHIS AGREEMENT is made and entered into this day of2018, byand between the BOZEMAN PARKING COMMISSION (BPC), BOZEMAII' MONTANA' anentity of the City of Bozeman, a self-goveming municipal corporation organized and existing underits Charter and the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana, with amailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as "BPC," aÍrdDowntown Bozeman Business Improvement District, 222 East Main Street, Bozeman, Montana,hereinafter referred to as "Contractor."In consideration of the mutual covenants and agreements herein contained, the receipt andsufficiency whereof being hereby acknowledged, the parties hereto agree as follows:1. Purpose: BPC agrees to enter this Agreement with Contractor to perfonri for BPCservices described in the Scope of Services attached hereto as Attachment "4" and by this referencemade aparthereof.2. TermÆffective Date: This Agreement is effective, immediately, and will terminateon the 30th day of June 2019.3. Scope of Work Contractor willperform the work and provide the services inaccordance with the requirements of the Scope of Services (Attachment A). For conflicts betweenthis Agreement and the Scope of Services, unless specifically provided otherwise, the Agreementgovems.4. Payment: BPC agrees to pay Contractor the amount specified in the Scope ofServices. The parties may amend the Scope of Services from time to time by mutual agreement inwriting.5. Contractorts ReDTo induce BPC to enter into this Agreement,Contractor makes the following representations :Professional Services Agreement for Garage CleaningFY 2019Page I of14
a. Contractor has familiarized itself with the nature and extent of this Agreement, theScope of Services, and with all local conditions and federal, state and local laws, ordinances, rules,and regulations that in any manner may affect cost, progress or performance of the Scope of Services.b. Contractor represents and warrants to BPC that it has the experience and ability toperform 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 andperform this Agreement and grant the rights granted in it; and that its performance of this Agteementshall 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 BPC will not determine or exercise control as to general procedures orformats necessary to have these services meet this warranty.6. Independênt Contractor Statusllabor Relations: The parties agree that Contractoris an independent contractor for purposes of this Agreement and is not to be considered an employeeof the BPC for any pu{pose. Contractor is not subject to the terms and provisions of the BPC'spersonnel policies handbook and may not be considered a BPC employee for workers' compensationor any other purpose. Contractor is not authorized to iepresent the BPC or otherwise bind the BPCin any dealings between Contractor and any third parties.Contractor shall comply with the applicable requirements of the Vy'orkers' 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 ofContractor's business, except for those members who are exempted by law.Contractor shall furnish the BPC with copies showing one of the following: (1) a binder forworkers' 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 läw for independent contractors.Contractor shall indemnifu, defend, and hold the BPC harmless from any and all claims,demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring inconnection with any labor problems or disputes or any delays or stoppages of work associated withsuch problems or disputes.Professional Services Agreement for Garage CleaningFY 2019Page 2 of 14
In the event that, during the term of this Agreement, any labor problems or disputes of anytype arise or materialize which in tum cause any services to cease for any period of time, Contractorspecifically agrees to take immediate steps, at its own expense and without expectation ofreimbursement from BPC, to alleviate or resolve all such labor problems or disputes. The specificsteps Contractor shall take to services shall be left to the discretion of Contractor; provided, however,that Contractor shall bear all costs of any related legal action. Contractor shall provide immediaterelief to the BPC so as to permit the services to continue at no additional cost to BPC.7. IndemnityAüaiver of Claims/Insurance: For other than professional servicesrendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnifr, andhold harmless the BPC, its agents, representatives, employees, and offrcers (collectively referred tofor purposes of this Section as the BPC) from and against any and all claims, demands, actions, feesand 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 tothe cause or causes thereof or the negligence of any party or parties that may be asserted against,recovered from or suffered by the BPC occasioned by, growing or arising out of or resulting from orin any way related to: (i) the negligent, reckless, or intentional misconduct of the Contractor; (ii) anynegligent, reckless, or intentional misconduct of any of the Contractor's agents; or (iii) the negligent,reckless, or intentional misconduct of any other third party.For the professional services rendered, to the fullest extent permitted by law, Contractoragrees to indemnify and hold the BPC harmless against claims, demands, suits, damages, losses, andexpenses, including reasonable defense attomey fees, to the extent caused by the negligence or willfulmisconduct of the Contractor or Contractor's agents or employees.Such obligations shall not be construed to negate, abridge, or reduce other rights or obligationsof indemnity that would otherwise exist. The indemnification obligations of this Section must not beconstrued 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 tocontribution from any insurance maintained by BPC.Should any indemnitee described herein be required to bring an action against the Contractorto assert its right to defense or indemnification under this Agreement or under the Contractor'sProfessional Services Agreement for Garage CleaningFY 2019Page 3 ofl4
applicable insurance policies required below the indemnitee shall be entitled to recover reasonablecosts and attorney fees incurred in asserting its right to indemnification or defense but only if a courtof competent jurisdiction determines the Contractor was obligated to defend the claim(s) or wasobligated to indemniS'the indemnitee for a claim(s) or any portion(s) thereof.In the event of an action filed against BPC resulting from the BPC's performance under thisAgreement, the BPC may elect to represent itself and incur all costs and expenses of suit.Contractor also waives any and all claims and recourse against the BPC or its officers, agentsor employees, including the right of contribution for loss or damage to person or property arisingfrom, growing out of, or in any \¡/ay connected with or incident to the performance of this Agreementexcept "responsibility for his own fraud, for willful injury to the person or property of another, or forviolation of law, whether willful or negligent" as per 28-2-702, MCA.These obligations shall survive termination of this Agreement and the services performedhereunder.In addition to and independent from the above, Contractor shall at Contractor's expense secureinsurance coverage through an insurance company or companies duly licensed and authorized toconduct insurance business in Montana which insures the liabilities and obligations specificallyassumed by the Contractor in this Section. The insurance coverage shall not contain any exclusionfor 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, andexpenses that may be asserted or claimed against, recovered from, or suffered by the BPC withoutlimit and without regard to the cause therefore and which is acceptable to the BPC and Contractorshall furnish to the BPC an accompanying certificate of insurance and accompanying endorsementsin amounts not less than as follows:o Workers' Compensation - statutory;. Employers' Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate;o Commercial General Liability - $1,000,000 per occrurence; $2,000,000 annualaggregate;o Automobile Liability - S1,000,000 property damage/bodily injury; $2,000,000 annualaggregate; ando Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate.Professional Services Agreement for Garage CleaningFY 2019Page 4 of 14
The BPC of Bozeman, its officers, agents, and employees, shall be endorsed as an additionalor named insured on a primary non-contributory basis on both the Commercial General andAutomobile Liability policies. The insurance and required endorsements must be in a form suitableto BPC and shall include no less than a sixty (60) day notice of cancellation or non-renewal. The BPCmust approve all insurance coverage and endorsements prior to the Contractor commencing work.Contractor shall notify BPC within two (2) business days of Contractor's receipt of notice that anyrequired insurance coverage will be terminated or Contractor's decision to terminate any requiredinsurance coverage for any reason.commencing work8. Terminations Fault:a. If Contractor refuses or fails to timely do the work, or any part thereof, or failsto perform any of its obligations under this Agreement, or otherwise breaches any terms orconditions of this Agreement, the BPC may, by written notice, terminate this Agreement andthe Contractor's right to proceed with all or any part of the work ("Termination Notice Dueto Contractor's Fault"). The BPC may then take over the work and complete it, either withits own resources or by re-letting the contract to any other third party.b. In the event of a termination pursuant to this Section 8, Contractor shall beentitled to payment only for those services Contractor actually rendered.c. Any termination provided for by this Section 8 shall be in addition to any otherremedies to which the BPC may be entitled under the law or at equity'd. In the event of termination under this Section 8, Contractor shall, under nocircumstances, be entitled to claim or recover consequential, special, punitive, lost businessopportunity, lost productivity, field office overhead, general conditions costs, or lost profitsdamages of any nature arising, or claimed to have arisen, as a result of the termination.9. Termination for BPC's Conveniencea. Should conditions arise which, in the sole opinion and discretion of the BPC,make it advisable to the BPC to cease performance under this Agreement BPC may terminateProfessional Services Agreement for Garage CleaningFY 2019Page 5 of 14
this Agreement by written notice to Contractor ("Notice of Termination for BPC'sConvenience"). The termination shall be effective in the manner specified in the Notice ofTermination for BPC's Convenience and shall be without prejudice to any claims that the BPCmay otherwise have against Contractor.b. Upon receipt of the Notice of Termination for BPC's Convenience, unlessotherwise directed in the Notice, the Contractor shall immediately cease performance underthis Agreement and make every reasonable eflort to refrain from continuing work, incurringadditional expenses or costs under this Agreement and shall immediately cancel all existingorders or contracts upon terms satisfactory to the BPC. Contractor shall do only such work asmay be necessary to preserve, protect, and maintain work already completed or immediatelyin progress.c. In the event of a termination pursuant to this Section 13, Contractor is entitledto payment only for those services Contractor actually rendered on or before the receipt of theNotice of Termination for BPC's Convenience.d. The compensation described in Section l3(c) is the sole compensation due toContractor for its performance of this Agreement. Contractor shall, under no circumstances,be entitled to claim or recover consequential, special, punitive, lost business opportunity, lostproductivity, field office overhead, general conditions costs, or lost profits damages of anynature arising, or claimed to have arisen, as a result of the termination.10. Limitation on Contractor's Damages; Time for Assertins Claima. 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 expresslywaives any right to claim or recover consequential, special, punitive, lost businessopportunity, lost productivity, field office overhead, general conditions costs, or lost profitsdamages of any nature or kind.b. In the event Contractor wants to assert a claim for damages of any kind ornature, Contractor shall provide BPC with written notice of its claim, the facts andcircumstances srrrounding and giving rise to the claim, and the total amount of damagessought by the claim, within ten (10) days of the facts and circumstances giving rise to theclaim. In the event Contractor fails to provide such notice, Contractor shall waive all rightsProfessional Services Agreement for Garage CleaningFY 2019Page 6 ofl4
to assert such claim.11. Representatives:a. BPC's Representative: The BPC's Representative for the purpose of thisAgreement shall be Ed Meece (Parking Manager) or such other individual as BPC shalldesignate in writing. Whenever approval or authorization from or communication orsubmission to BPC is required by this Agreement, such communication or submission shallbe directed to Ed Meece as the BPC's Representative and approvals or authorizations shall beissued only by such Representative; provided, however, that in exigent circumstances whenBPC's Representative is not available, Contractor may direct its cominunication or submissionto other designated BPC personnel or agents as listed above and may receive approvals orauthorization from such persons.b. Contractor's Representative: The Contractor's Representative for thepurpose of this Agreement shall be Chris Naumann, BID Director, or such other individual asContractor shall designate in writing. 'Whenever direction to or communication withContractor is required by this Agreement, such direction or communication shall be directedto Contractor's Representative; provided, however, that in exigent circumstances whenContractor's Representative is not available, BPC may direct its direction or communicationto 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 BPC of Bozemanbusiness license, and inspections from applicable governmental authorities, and pay all fees andcharges in connection therewith.13 Laws and Resulations: Contractor shall comply fully with all applicable state andfederal 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 disposalof hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, andprovisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable BPC, County, andState building and electrical codes, the Americans with Disabilities Act, and all non-discrimination,affrrmative action, and utilization of minority and small business statutes and regulations.Professional Services Agreement for Garage CleaningFY 2019PageT o114
14. Nondiscrimination: The Contractor will have a policy to provide equal employmentopportunity 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 employmentbecause of race, color, religion, creed, political ideas, sex, age, marital stafus, national origin, actualor perceived sexual orientation, gender identity, physical or mental disability, except when thereasonable demands of the position require anage, physical or mental disability, marital status or sexdistinction. The Contractor shall be subject to and comply with Title VI of the Civil Rights Act of1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. TheContractor shall require these nondiscrimination terms of its sub-Contractors providing services underthis agreement.15.Contractorshall 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 BPC under this Agreement. Contractoracknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S.Department of Transportation (DOT) regulations goveming anti-drug and alcohol misuse preventionplans and related testing. BPC shall have the right to request proof of such compliance and Contractorshall be obligated to fumish such proof.The Contractor shall be responsible for instructing and training the Contractor's employees andagents in proper and specified work methods and procedures. The Contractor shall provide continuousinspection and supervision of the work performed. The Contractor is responsible for instructing hisemployees and agents in safe work practices.16.This document contains the entire agreementbetween the parties and no statements, promises or inducements made by either party or agents ofeither party, which are not contained in this written Agreement, may be considered valid or binding.This Agreement may not be enlarged, modified or altered except by written agreement signed by bothparties hereto. The Contractor may not subcontract or assign Contractor's rights, including the rigltto compensation or duties arising hereunder, without the prior written consent of BPC. Anysubcontractor or assignee will be bound by all of the terms and conditions of this Agreement.17. Reports/AccountabilitvÆublic Information: Contractor agrees to develop and./orprovide documentation as requested by the BPC demonstrating Contractor's compliance with therequirements of this Agreement. Contractor shall allow the BPC, its auditors, and other personsProfessional Services Agreement for Garage CleaningFY 2019Page 8 of 14
authorized by the BPC to inspect and copy its books and records for the purpose of verifying that thereimbursement of monies distributed to Contractor pursuant to this Agreement was used incompliance with this Agreement and all applicable provisions of federal, state, and local law. TheContractor shall not issue any statements, releases or information for public dissemination withoutprior approval of the BPC.f8. Non-Waiver: A waiver by either party any default or breach by the other party of anyterms or conditions of this Agreement does not limit the other party's right to enforce such term orconditions or to pursue any available legal or equitable rights in the event of any subsequent defaultor breach.lg. Attorney's Fees and Costs: That in the event it becomes necessary for either Party ofthis Agreement to retain an attomey to enforce any of the terms or conditions of this Agreement or togive any notice required herein, then the prevailing Party or the Party giving notice shall be entitledto reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel to includethe City Attorney.20. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make allappropriate employee withholdings.21. Dispute Resolutiona. Any claim, controversy, or dispute between the parties, their agents,employees, or representatives shall be resolved first by negotiation between senior-levelpersonnel from each party duly authorized to execute settlement agreements. Upon mutualagreement ofthe parties, the parties may invite an independent, disinterested mediator to assistin the negotiated settlement discussions.b. If the parties are unable to resolve the dispute within thirty (30) days from thedate the dispute was first raised, then such dispute may only be resolved in a court ofcompetent jurisdiction in compliance with the Applicable Law provisions of this Agreement'22. Survival: Contractor's indemnification shall survive the termination or expiration ofthis Agreement for the maximum period allowed under applicable law.23. Headinss: The headings used in this Agreement are for convenience only and are notProfessional Services Agreement for Garage CleaningFY 2019Page 9 ofl4
be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs towhich they refer.24. Severabilþ: If any portion of this Agreement is held to be void or unenforceable, thebalance thereofshall continue in effect.25. Applicable Law: The parties agree that this Agreement is governed in all respects bythe laws of the State of Montana and the parties expressly agree that venue will be in Gallatin County,Montana, and no other venue.26. Bindine Effect: This Agreement is binding upon and inures to the benefit of the heirs,legal representatives, successors, and assigns ofthe parties.27. No Third-Partv Beneficiarv: This Agreement is for the exclusive benefit of theparties, does not constitute a third-party beneficiary agreement, and may not be relied upon orenforced by a third party.28. Counterparts: This Agreement may be executed in counterparts, which togetherconstitute one instrument.29. Intesration: This Agreement and all Exhibits attached hereto constitute the entireagreement of the parties. Covenants or representations not contained therein or made apart thereofby reference, are not binding upon the parties. There are no understandings between the parties otherthan as set fonh in this Agreement. All communications, either verbal or written, made prior to thedate of this Agreement are hereby abrogated and withdrawn unless specifically made a part of thisAgreement by reference.30. Extensions: this Agreement may, upon mutual agreement, be extended for a periodof one (l ) year by written agreement ofthe Parties. ln no case, however, may this Agreement run longerthan June 30,2019.**** END OF AGREEMENT EXCEPT FOR SIGNATURÍ',$ 't*.**Professional Services Agreement for Garage CleaningFY 2019Page 10 of14
IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and yearfirst above written.BOZEMAN PARI(NG COMMISSIONDO}VIITOWI\ BOZEMAN BIDEd Meece, Parking ManagerChris Naumann, DirectorAPPROVED AS TO FORM:Greg Sullivan, City AttorneyProfessional Services Agreement for Garage CleaningFY 2019Page 11 ofl4
ATTACHMENT ABRIDGER PARK GARAGE CLEANINGSCOPE OF SERVICES AND FEES for FY20l9(EXCLUDES THE pUBLtC RESTROOMS AND BUS STOP WAIT|NG AREA)The Bozeman Parking Division (BPD), at its option, may review the techniquesemployed by the Contractor, and require alternative methods if determined necessary. Alltools and equipment used by the Contractor will be regularly cleaned and maintained in goodoperating condition and kept in an orderly fashion if stored on site.BPD will be responsible for providing any notice of deficiency in a timely manner toContractor. Contractor will be expected to respond to the notice of deficiency as soon aspossible. ln the event a dispute arises between what is expected by the BPD and what isexpected by the Contractor, representatives of both entities shall meet to resolve the issue.In instances where an acceptable resolution cannot be attained, the BPD's position shallprevail.BPD requires that any Contractor-acquired chemicals or products stored in thebuilding being serviced under this contract maintain materials safety data sheets on site at alltimes. All work required under these specifications shall be in compliance with and meetindustry standards. Product manufacturers' instructions shall be followed, and only theproper product will be used for the task.The Contractor will notiff the BPD of any maintenance or safety related issuesbeyond the scope of the contract. Such things as burned out lamps, vandalism, brokenentry/exit gates or arms, plumbing related problems or leaks, safety hazards, and any otherbuilding related problems that Contractor observes or becomes aware of.The work frequencies shown are minimum criteria. Additionalwork in some areasmay be required in order to maintain the generally agreed upon standards.WEEKLYEmptvino and Cleanino Waste Receptacles: Empty the main waste receptacles anddeposit bags in collection containers (i.e. dumpsters) provided for that purpose. Allwaste receptacles will be lined with trash bags. Receptacles will be kept free ofdeposits, dirt streaks, and odors.Stairwell and Landinq Floors, Walls, Doors. Rails. and Handles: lnspect these areasweekly, and clean when necessary to remove small or spotted areas of dirt, greasestains, or other marks. Care will be taken to perform spot cleaning without damage tothe surface finish and to provide an overall uniform appearance substantially free ofcleaning marks.Professional Services Agreement for Garage CleaningFY 2019Page 12 of 1412.
3.4.5.6.7.8.Sweepinq: Sweep all stainruells and landing areas and deposit debris in trashreceptacles. Care must be taken to ensure that allfloor areas are cleaned and that thedirt is simply not transferred to corners. Any items moved to accommodate theseprocesses will be returned to their original locations.Windows/Glass surfaces and Ledges/Sills: Allglass surfaces (doors and windows -both interior and exterior) and the ledges/Sills in stairwells will be inspected weekly anddusted or spot cleaned as necessary.Elevators: Wipe down all walls (including interior and exterior of door), rails andbuttons; and sweep/mop floor. Contractor shall notify BPD if any elevator appears tonot be functioning properly, or if Contractors notices anything unusual about elevatorcondition. Contractor will clean light panels if dirty, or retum them to the proper locationif removed and present. :Efrom aroumtntmtzeresponsible for the removal of snow or ice.Graffiti: Remove all graffiti in stairwells, or on garage walls, signs or fixtures usingprovided products. lf graffiti is not'removable using products provided, or needs to bepainted over; Contractorwill notify BPD,with specífies including location.Low Dusting: lncludes surfaces less than six feet from the floor, which may include, butma¡l not be limited to, ledges, support braces, window sills, doors, stair rails, and baseboards. A satisfactory or acceptably'dusted surface is free of all dust, dust streaks, lint,cobwebs, dirt, or oily streaks. The dust must be removed completely, not scatteredaround.Ash Trays/ReceptacleS: Empty all ash trays/receptacles on a weekly basis or moreoften as need. Spot ;cleaning may also be required to keep receptacles clean.Liqhts: Notify BPD ¡f overhead lighting (including stairwells) is noticeably dimmed ordoes not appear to be functioning properly, if bulbs/fixtures are burned out, or if lightpanel covers (elevators) are missing. Contractor will not be responsible for changingof bulbs or fixtures.Other: Contractor will notify BPD of any and all safety issues observed, or reported tothem, in or around the garage.9.10.11Professional Services Agreement for Garage CleaningFY 2019Page 13 of14MONTHLY
1.2.General parkins areas/ramp: Walk all levels of the garage in addition to stairwells,including the basement level, and remove all loose papers, bottles, cigarette butts, andother trash visible and reasonably accessible, depositing such in trash receptacles.Contractor is expected to look between vehicles and in all open areas of garage.Dustino Ventilation EoAll accessibleofunit grills, diffusers, fans andbe cleaned by dusting orvents will be dusted or vacuumed. lf the grillsvacuuming, they shall be removed and/orFEESTheContractorWIIIinvoicetheBPDmonthThousandundred Sixteen Dollarsand sixty Six Cents ($1,416.66). The BPDto pay saidpon receipt of eachmonthly invoice. The annual total value of the000.00.Professional Services Agreement for Garage CleaningFY 2019Page 14 of14