HomeMy WebLinkAbout18- Professional Services Agreement, Parking Commission - Downtown Bozeman Business Improvement District - Parking Garage Cleaning Bozo
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PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this 104, day of k , 2018, by
and between the BOZEMAN PARKING COMMISSION (BPC), BOZEMAN, MONTANA, an
entity of the City of Bozeman, 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 "BPC," and
Downtown 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 and
sufficiency whereof being hereby acknowledged, the parties hereto agree as follows:
1. Purpose: BPC agrees to enter this Agreement with Contractor to perform for BPC
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, immediately, and will terminate
on the 30th day of June 2019.
3. Scope of Work: Contractor will perform the work and provide the services in
accordance with the requirements of the Scope of Services (Attachment A). For conflicts between
this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement
governs.
4. Payment: BPC agrees to pay Contractor the amount specified in the Scope of
Services. The parties may amend the Scope of Services from time to time by mutual agreement in
writing.
5. Contractor's Representations: To induce BPC to enter into this Agreement,
Contractor makes the following representations:
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FY 2019
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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,
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 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 BPC 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 BPC for any purpose. Contractor is not subject to the terms and provisions of the BPC's
personnel policies handbook and may not be considered a BPC employee for workers' compensation
or any other purpose. Contractor is not authorized to represent the BPC or otherwise bind the BPC
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 BPC 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 indemnify, defend, and hold the BPC 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.
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FY 2019
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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 BPC, to alleviate or resolve all such labor problems or disputes. The specific
steps 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 immediate
relief to the BPC so as to permit the services to continue at no additional cost to BPC.
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 BPC, its agents, representatives, employees, and officers (collectively referred to
for purposes of this Section as the BPC) 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 BPC occasioned by, growing or arising out of or resulting from or
in any way related to: (i)the negligent, reckless, or intentional misconduct of the Contractor; (ii) any
negligent, 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, Contractor
agrees to indemnify and hold the BPC 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 BPC.
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
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FY 2019
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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 BPC resulting from the BPC's performance under this
Agreement, 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, 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 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 BPC without
limit and without regard to the cause therefore and which is acceptable to the BPC and Contractor
shall furnish to the BPC 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.
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FY 2019
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The BPC 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 BPC and shall include no less than a sixty(60)day notice of cancellation or non-renewal. The BPC
must 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 any
required insurance coverage will be terminated or Contractor's decision to terminate any required
insurance coverage for any reason.
The BPC must approve all insurance coverage and endorsements prior to the Contractor
commencing work.
8. 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 BPC 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 BPC 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, 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 BPC 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 BPC's Convenience:
a. 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 terminate
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FY 2019
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this Agreement by written notice to Contractor ("Notice of Termination for BPC's
Convenience"). The termination shall be effective in the manner specified in the Notice of
Termination for BPC's Convenience and shall be without prejudice to any claims that the BPC
may otherwise have against Contractor.
b. Upon receipt of the Notice of Termination for BPC'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 BPC. 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 13, Contractor is entitled
to payment only for those services Contractor actually rendered on or before the receipt of the
Notice of Termination for BPC's Convenience.
d. The compensation described in Section 13(c) is the sole compensation due to
Contractor for its performance of this Agreement. Contractor shall, under no circumstances,
be entitled to claim or recover consequential, special,punitive, lost business opportunity, lost
productivity, field office overhead, general conditions costs, or lost profits damages of any
nature arising, or claimed to have arisen, as a result of the termination.
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 BPC with written notice of its claim, the facts and
circumstances surrounding and giving rise to the claim, and the total amount of damages
sought by the claim, within ten (10) days of the facts and circumstances giving rise to the
claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights
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FY 2019
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to assert such claim.
11. Representatives:
a. BPC's Representative: The BPC's Representative for the purpose of this
Agreement shall be Ed Meece (Parking Manager) or such other individual as BPC shall
designate in writing. Whenever approval or authorization from or communication or
submission to BPC is required by this Agreement, such communication or submission shall
be directed to Ed Meece as the BPC's Representative and approvals or authorizations shall be
issued only by such Representative; provided, however, that in exigent circumstances when
BPC's Representative is not available,Contractor may direct its communication or submission
to other designated BPC 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 Chris Naumann,BID Director, 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, BPC 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 BPC of Bozeman
business license, and inspections from applicable governmental authorities, and pay all 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 BPC, 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.
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FY 2019
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14. Nondiscrimination: 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 BPC 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. BPC 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.
16. Modification and Assignability: This document contains the entire agreement
between the parties and no statements, promises or inducements made by either party or agents of
either 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 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 BPC. 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 BPC demonstrating Contractor's compliance with the
requirements of this Agreement. Contractor shall allow the BPC, its auditors, and other persons
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FY 2019
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authorized by the BPC 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 BPC.
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
the 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
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
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FY 2019
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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 and the parties expressly agree that venue will be in Gallatin County,
Montana, and no other venue.
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.
30. Extensions: this Agreement may,upon mutual agreement,be extended for a period
of one(1)year by written agreement of the Parties. In no case,however,may this Agreement run longer
than June 30, 2019.
x*** END OF AGREEMENT EXCEPT FOR SIGNATURES *X*x
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FY 2019
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IN WITNESS WHEREOF,the parties hereto have executed this instrument the day and year
first above written.
BOZEMAN PARKING COMMISSION DO T WN BOZEMAN BID
By By
Ed Meece, Parking Manager Chris Naumann, Director
l
APPROV S TO FORM:
By
Gr d9ullivan, City Attorney
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FY 2019
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ATTACHMENT A
BRIDGER PARK GARAGE CLEANING
SCOPE OF SERVICES AND FEES for FY2019
(EXCLUDES THE PUBLIC RESTROOMS AND BUS STOP WAITING AREA)
The Bozeman Parking Division (BPD), at its option, may review the techniques
employed by the Contractor, and require alternative methods if determined necessary. All
tools and equipment used by the Contractor will be regularly cleaned and maintained in good
operating 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 to
Contractor. Contractor will be expected to respond to the notice of deficiency as soon as
possible. In the event a dispute arises between what is expected by the BPD and what is
expected 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 shall
prevail.
BPD requires that any Contractor-acquired chemicals or products stored in the
building being serviced under this contract maintain materials safety data sheets on site at all
times. All work required under these specifications shall be in compliance with and meet
industry standards. Product manufacturers' instructions shall be followed, and only the
proper product will be used for the task.
The Contractor will notify the BPD of any maintenance or safety related issues
beyond the scope of the contract. Such things as burned out lamps, vandalism, broken
entry/exit gates or arms, plumbing related problems or leaks, safety hazards, and any other
building related problems that Contractor observes or becomes aware of.
The work frequencies shown are minimum criteria. Additional work in some areas
may be required in order to maintain the generally agreed upon standards.
WEEKLY
1. Emptying and Cleaning Waste Receptacles: Empty the main waste receptacles and
deposit bags in collection containers (i.e. dumpsters) provided for that purpose. All
waste receptacles will be lined with trash bags. Receptacles will be kept free of
deposits, dirt streaks, and odors.
2. Stairwell and Landing Floors, Walls, Doors, Rails, and Handles: Inspect these areas
weekly, and clean when necessary to remove small or spotted areas of dirt, grease
stains, or other marks. Care will be taken to perform spot cleaning without damage to
the surface finish and to provide an overall uniform appearance substantially free of
cleaning marks.
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FY 2019
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3. Sweeping: Sweep all stairwells and landing areas and deposit debris in trash
receptacles. Care must be taken to ensure that all floor areas are cleaned and that the
dirt is simply not transferred to corners. Any items moved to accommodate these
processes will be returned to their original locations.
4. Windows/Glass surfaces and Ledges/Sills: All glass surfaces (doors and windows -
both interior and exterior) and the ledges/Sills in stairwells will be inspected weekly and
dusted or spot cleaned as necessary.
5. Elevators: Wipe down all walls (including interior and exterior of door), rails and
buttons; and sweep/mop floor. Contractor shall notify BPD if any elevator appears to
not be functioning properly, or if Contractors notices anything unusual about elevator
condition. Contractor will clean light panels if dirty, or return them to the proper location
if removed and present.
6. Entryway and Vestibules: Remove all trash and other debris for a minimum of 10 feet
from around all exterior entryway doors, and drive lane entrances and exits, in order to
minimize the amount of material tracked into the building. The Contractor will not be
responsible for the removal of snow or ice.
7. Graffiti: Remove all graffiti in stairwells, or on garage walls, signs or fixtures using
provided products. If graffiti is not removable using products provided, or needs to be
painted over, Contractor will notify BPD with specifics including location.
8. Low Dusting: Includes surfaces less than six feet from the floor, which may include, but
may not be limited to, ledges, support braces, window sills, doors, stair rails, and base
boards. 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 scattered
around.
9. Ash Trays/Receptacles: Empty all ash trays/receptacles on a weekly basis or more
often as need. Spot cleaning may also be required to keep receptacles clean.
10. Lights: Notify BPD if overhead lighting (including stairwells) is noticeably dimmed or
does not appear to be functioning properly, if bulbs/fixtures are burned out, or if light
panel covers (elevators) are missing. Contractor will not be responsible for changing
of bulbs or fixtures.
11. Other: Contractor will notify BPD of any and all safety issues observed, or reported to
them, in or around the garage.
MONTHLY
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FY 2019
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1. General parking areas/ramp: Walk all levels of the garage in addition to stairwells,
including the basement level, and remove all loose papers, bottles, cigarette butts, and
other trash visible and reasonably accessible, depositing such in trash receptacles.
Contractor is expected to look between vehicles and in all open areas of garage.
2. Dustinq Ventilation Equipment: All accessible portions of unit grills, diffusers, fans and
vents will be dusted or vacuumed. If the grills cannot be cleaned by dusting or
vacuuming, they shall be removed and/or washed.
FEES
The Contractor will invoice the BPD monthly for One Thousand Four Hundred Sixteen Dollars
and sixty Six Cents ($1,416.66). The BPD agrees to pay said amount upon receipt of each
monthly invoice. The annual total value of the contract shall not exceed $17,000.00.
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FY 2019
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