HomeMy WebLinkAbout05-21-18 City Commission Packet Materials - C16. PSA with Allied Engineering for Library Site Improvements
Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Mike Gray, Facilities Superintendent SUBJECT: Professional Services Agreement for Design and Construction Administration of the 2018 Library Site Improvements Project
MEETING DATE: May 21, 2018
AGENDA ITEM TYPE: Consent
RECOMMENDATION: Authorize the City Manager to sign a Professional Services
Agreement for engineering services for the 2018 Library Site Improvements Project.
BACKGROUND:
Library and Facilities Staff have identified a need for several site improvements to the Bozeman Library parking lot to improve pedestrian safety, storm drainage, parking lot striping, and parking lot surfacing maintenance. The proposed PSA will include designing a plan set to
address these issues, bidding the project in accordance with city standards, and administering the project throughout construction.
City staff obtained proposals for design and construction administration of this project from Allied Engineering and Sanderson Stewart. After reviewing the proposals, a panel of three city staff agreed that Allied Engineering is the most qualified firm to complete the work. A copy of
Allied’s proposal and a professional services agreement is attached for review and approval.
UNRESOLVED ISSUES: None
ALTERNATIVES: Disapprove
FISCAL EFFECTS: A fixed fee of $15,000 will be paid for with approved funding from the Library Depreciation Fund
Attachments: Professional Services Agreement, Allied Proposal
Report compiled on: 05/03/2018
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PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this _____ day of ____________, 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, Allied Engineering Services Inc., 32 Discovery Drive, Bozeman, MT
59718 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 upon completion of the work.
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,
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and regulations that in any manner may affect cost, progress or performance of the Scope of 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 termination 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 permitted 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.
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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.
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 termination 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 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 Engineer commencing work. Engineer shall notify City within two (2)
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business days of Engineer’s receipt of notice that any required insurance coverage will be terminated
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 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 Engineer’s right to proceed with all or any part of the work (“Termination 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 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 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
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additional expenses or costs under this Agreement and shall immediately cancel all existing
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 __Mike Gray (Facilities Superintendent) or such other individual as City
shall designate in writing. Whenever approval or authorization from or communication or
submission to City is required by this Agreement, such communication or submission shall be
directed to Shawn Kohtz 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
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to other designated City personnel or agents as listed above 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 __Lee Evans___ 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 governmental 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,
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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. 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 sub-Engineer 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 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.
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20. Taxes: Engineer 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
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.
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29. Integration: This Agreement and all Exhibits attached hereto constitute the entire
agreement of the parties. Covenants or representations not contained therein or made a part thereof
by reference, are not binding upon the parties. There are no understandings between the parties other
than as set forth in this Agreement. All communications, either verbal or written, made prior to the
date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this
Agreement by reference.
30. Extensions: this Agreement may, upon mutual 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 ****
IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year
first above written.
CITY OF BOZEMAN, MONTANA ____________________________________
ENGINEER (Type Name Above)
By________________________________ By__________________________________
Andrea Surratt, City Manager
Print Name:
Print Title: ____________________________
APPROVED AS TO FORM:
By_______________________________
Greg Sullivan, Bozeman City Attorney
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