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HomeMy WebLinkAbout06-04-18 City Commission Packet Materials - C6. PSA with BendonAdams for NCOD and Historic Preservation Program1 REPORT TO: Mayor and City Commission FROM: Phillipe Gonzalez, Historic Preservation Specialist Chris Saunders, Policy and Planning Manager Martin Matsen, Director of Community Development SUBJECT: Approval of professional services agreement in the amount of $66,525 with BendonAdams for a comprehensive review of the NCOD and Historic Preservation Program and authorization for the City Manager to sign the agreement on behalf of the City. MEETING DATE: June 4, 2018 AGENDA ITEM TYPE: Consent RECOMMENDATION: That the City Commission approve the professional services agreement with BendonAdams and authorize the City Manager to sign the agreement on behalf of the City. BACKGROUND: The City Commission funded an evaluation of the NCOD to search for recommendations to the NCOD and Historic Preservation Program. A standard professional services agreement was executed by the contractor. The signed document and required insurance certificate are provided. UNRESOLVED ISSUES: None determined at this time. ALTERNATIVES: As determined by the Commission. FISCAL EFFECTS: Contract cost of $66,525 is within the amount funded in the 2019 fiscal year budget. Attachment: Professional Services Agreement Report compiled on May 21, 2018 Commission Memorandum 78 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this _____ day of ____________, 201__, 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, BendonAdams LLC; 300 So. Springs St. hereinafter referred to as “Contractor.” In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree as follows: 1. Purpose: City agrees to enter this Agreement with Contractor to perform for City services described in the Scope of Services attached hereto as 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 28th day of February, 2019. 3. Scope of Work: Contractor will perform the work and provide the services in accordance with the requirements of the Scope of Services, Exhibit A. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. 4. Payment: City agrees to pay Contractor the amount specified in the Scope of Services. Any alteration or deviation from the described services that involves additional costs above the Agreement amount will be performed by Contractor after written request by the City, and will become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing upon any additional charges. 5. Contractor’s Representations: To induce City to enter into this Agreement, Contractor makes the following representations: a. Contractor has familiarized itself with the nature and extent of this Agreement, the Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules, and regulations that in any manner may affect cost, progress or performance of the Scope of Services. b. Contractor represents and warrants to City that it has the experience and ability to perform the services required by this Agreement; that it will perform said services in a professional, competent and timely manner and with diligence and skill; that it has the power to enter into and perform this Agreement and grant the rights granted in it; and that its performance of this Agreement shall not infringe upon or violate the rights of any third party, whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal, state 79 and municipal laws. The City will not determine or exercise control as to general procedures or formats necessary to have these services meet this warranty. 6. Independent Contractor Status/Labor Relations: The parties agree that Contractor is an independent contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Contractor is not subject to the terms and provisions of the City’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. Contractor is not authorized to represent the City or otherwise bind the City in any dealings between Contractor and any third parties. Contractor shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39, Chapter 71, MCA, and the Occupational Disease Act of Montana, Title 39, Chapter 71, MCA. Contractor shall maintain workers’ compensation coverage for all members and employees of Contractor’s business, except for those members who are exempted by law. Contractor shall furnish the City with copies showing one of the following: (1) a binder for workers’ compensation coverage by an insurer licensed and authorized to provide workers’ compensation insurance in the State of Montana; or (2) proof of exemption from workers’ compensation granted by law for independent contractors. Contractor shall indemnify, defend, and hold the City harmless from any and all claims, demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in connection with any labor problems or disputes or any delays or stoppages of work associated with such problems or disputes and for any claims regarding underpaid prevailing wages. 7. Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of 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 Contractor; (ii) any negligent, reckless, or intentional misconduct of any of the Contractor’s agents. For the professional services rendered, to the fullest extent permitted by law, Contractor agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees, to the extent caused by the negligence or willful misconduct of the Contractor or Contractor’s agents or employees. 80 Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the indemnitee(s) which would otherwise exist as to such indemnitee(s). Contractor’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. Should any indemnitee described herein be required to bring an action against the Contractor to assert its right to defense or indemnification under this Agreement or under the Contractor’s applicable insurance policies required below the indemnitee shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines the Contractor was obligated to defend the claim(s) or was obligated to indemnify the indemnitee for a claim(s) or any portion(s) thereof. In the event of an action filed against City resulting from the City’s performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. Contractor also waives any and all claims and recourse against the City or its officers, agents or employees, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for his own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. These obligations shall survive termination of this Agreement and the services performed hereunder. In addition to and independent from the above, Contractor shall at Contractor’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the Contractor in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Contractor in subsection (a) of this Section. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the City without limit and without regard to the cause therefore and which is acceptable to the City and Contractor shall furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows: Workers’ Compensation – statutory; Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; 81 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 Contractor commencing work. Contractor shall notify City within two (2) business days of Contractor’s receipt of notice that any required insurance coverage will be terminated or Contractor’s decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. 8. Termination for Contractor’s Fault: If Contractor refuses or fails to timely do the work, or any part thereof, or fails to perform any of its obligations under this Agreement, or otherwise breaches any terms or conditions of this Agreement, the City may, by written notice, terminate this Agreement and the Contractor’s right to proceed with all or any part of the work (“Termination Notice Due to Contractor’s Fault”). The City may then take over the work and complete it, either with its own resources or by re-letting the contract to any other third party. In the event of a termination pursuant to this Section 8, Contractor shall be entitled to payment only for those services Contractor actually rendered. 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. In the event of termination under this Section 8, Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 9. Termination for City’s Convenience: a. Should conditions arise which, in the sole opinion and discretion of the City, make it advisable to the City to cease performance under this Agreement City may terminate this Agreement by written notice to Contractor (“Notice of Termination for City’s Convenience”). The termination shall be effective in the manner specified in the Notice of Termination for City’s Convenience and shall be without prejudice to any claims that the City may otherwise have against Contractor. 82 b. Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise directed in the Notice, the Contractor shall immediately cease performance under this Agreement and make every reasonable effort to refrain from continuing work, incurring additional expenses or costs under this Agreement and shall immediately cancel all existing orders or contracts upon terms satisfactory to the City. Contractor shall do only such work as may be necessary to preserve, protect, and maintain work already completed or immediately in progress. c. In the event of a termination pursuant to this Section 9, Contractor is entitled to payment only for those services Contractor actually rendered on or before the receipt of the Notice of Termination for City’s Convenience. d. The compensation described in Section 9(c) is the sole compensation due to Contractor for its performance of this Agreement. Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 10. Limitation on Contractor’s Damages; Time for Asserting Claim: a. In the event of a claim for damages by Contractor under this Agreement, Contractor’s damages shall be limited to contract damages and Contractor hereby expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b. In the event Contractor wants to assert a claim for damages of any kind or nature, Contractor shall provide City with written notice of its claim, the facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, within thirty (30) days of the facts and circumstances giving rise to the claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights to assert such claim. 11. Representatives: a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be Chris Saunders 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 Chris Saunders as the City’s Representative and approvals or authorizations shall be issued only by such Representative; provided, however, that in exigent circumstances when City’s Representative is not available, Contractor may direct its communication or submission to other designated City personnel or agents as listed above and may receive approvals or authorization from such persons. 83 b. Contractor’s Representative: The Contractor’s Representative for the purpose of this Agreement shall be Sara Adams or such other individual as Contractor shall designate in writing. Whenever direction to or communication with Contractor is required by this Agreement, such direction or communication shall be directed to Contractor’s Representative; provided, however, that in exigent circumstances when Contractor’s Representative is not available, City may direct its direction or communication to other designated Contractor personnel or agents. 12. Permits: Contractor shall provide all notices, comply with all applicable laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. 13 Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non-discrimination, affirmative action, and utilization of minority and small business statutes and regulations. 14. Nondiscrimination: The Contractor agrees that all hiring by Contractor of persons performing this Agreement shall be on the basis of merit and qualifications. The Contractor will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. The Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. The Contractor shall require these nondiscrimination terms of its sub-Contractors providing services under this agreement. 15. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent engaged in services to the City under this Agreement while on City property or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. 84 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 Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Contractor may not subcontract or assign Contractor’s rights, including the right to compensation or duties arising hereunder, without the prior written consent of City. Any subcontractor or assignee will be bound by all of the terms and conditions of this Agreement. 17. Reports/Accountability/Public Information: Contractor agrees to develop and/or provide documentation as requested by the City demonstrating Contractor’s compliance with the requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons authorized by the City to inspect and copy its books and records for the purpose of verifying that the reimbursement of monies distributed to Contractor pursuant to this Agreement was used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The Contractor shall not issue any statements, releases or information for public dissemination without prior approval of the City. 18. Non-Waiver: A waiver by either party any default or breach by the other party of any terms or conditions of this Agreement does not limit the other party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 19. Attorney’s Fees and Costs: That in the event it becomes necessary for either Party of this Agreement to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel to include City Attorney. 20. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. 21. Dispute Resolution: a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. 85 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 be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. 24. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 25. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 26. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 27. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. 28. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 29. Integration: This Agreement and all Exhibits attached hereto constitute the entire agreement of the parties. Covenants or representations not contained therein or made a part thereof by reference, are not binding upon the parties. There are no understandings between the parties other than as set forth in this Agreement. All communications, either verbal or written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by reference. 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 March 31, 2019. 86 EXHIBIT A – SCOPE OF SERVICES The purpose of the NCOD Update project is to evaluate the need for alternatives to the current Neighborhood Conservation Overlay District based on previous studies of the overlay districts as well as review alternatives to the current Historic Preservation program. These recommendations will be clearly defined and specific as to be implemented by staff. Additional work will include metrics for defining the success of the recommendations if they are implemented and will be based on “best practices”. Tasks Below is the anticipated list of tasks with detailed descriptions, assumptions, and expected work products. As the project proceeds, adjustments to the order and/ or details of tasks and products may be necessary. Such changes shall be agreed upon by both parties in writing. Over the course of the project, we would schedule project management check-in calls every two weeks with the City’s project manager. This will help the consultant team and the City stay abreast of any current issues and facilitate the flow of information. Task 1 – Project Initiation & Management 1.1: Project Kick-Off Meeting with Staff (June) To begin the project, BendonAdams and Orion Planning & Design will meet with City of Bozeman Community Development staff remotely to review and finalize methodology, review and finalize stakeholder groups, review and finalize all relevant documents concerning the NCOD project and develop a comprehensive Outreach Plan with tentative scheduling and all relevant information. 1.2: Background Analysis In addition to providing various contributing documents, GIS data, relevant plans, and previous community feedback concerning the NCOD, staff will provide approximately 20 infill projects, demolition and redevelopment and addition projects within the NCOD, illustrating the perceived successes and failures of the NCOD. Additionally the City of Bozeman will provide surveys of Community Development staff’s opinions regarding the NCOD and its role as a planning tool. 1.3: Outreach & Community Plan Working with staff to complete a Community Outreach Plan (COP), specific items within the COP will include:  Meeting & Event Schedules  Activity Maps 87  Staff Expectations  Projected Materials  Survey Page Development  Brand Tool Kit  Deliverables  Feedback Loops  Windshield Survey Development  Survey Page/ Media Release 1.4: Preliminary Schedule of Events and Due Dates: Event Date/ Time Project Kick-Off: Meeting with Staff Monday, June 4, 2018 Visit #1 Monday, July 9, 2018 Visit #2 Monday, July 23, 2018 Findings and Draft Report Due Monday, August 20, 2018 Visit # 3 Monday, September 17, 2018 Final Report Due Monday, December 3, 2018 Visit #4, City Commission Presentation Monday, October 15, 2018 Final Report Changes Monday, December 3, 2018 Deliverables Due Monday, January 7, 2019 Close Out of Contract Monday, February 4, 2019 *Exact dates and number of site visits are subject to change as agreed to by both parties. Task 2 – Public Engagement The Public Engagement Process will include a total of 3 visits to the City of Bozeman By BendonAdams and Orion Planning & Design to conduct various public engagement events from small stakeholder meetings to large venue open to the general public. The first and second visit will be diagnostic based seeking to inform and receive feedback, completing the initial public engagement process. Visit #1 The initial visit by consultant staff will include meetings with City of Bozeman Community Development staff, a tour of the NCOD and all historic districts, small group meetings with stakeholders groups and neighborhood coordinators. This visit will serve as a pulse check regarding the state of the NCOD and citizens opinions and beliefs surrounding it. 88 Visit #2 The second visit by the consulting staff will include a large scale neighborhood survey comprised of staff and volunteers and one public open house. This visit will be focus on collecting data regarding the NCOD and hosting a large event to publicize the project and receive general feedback. Task 3 – Findings & Draft Report As a result of public and staff input, a draft will be provided with recommendations regarding alternatives to the NCOD (if needed), available metrics to measure success of alternatives and recommendations for a self-sufficient Historic Preservation Program.  Draft report will contain actionable plans that can easily and readily be implemented by staff and city commission.  Draft report will contain a determination whether design guidelines or additional regulation is necessary alongside NCOD alternatives.  Draft will be completed with a feedback Loop from previous phases. Visit #3 Initial draft will be presented to Staff, other stakeholder groups. An additional large meeting will be provided to showcase consultant findings, and receive public feedback. Task 4 – Final Report Visit #4 4.1 Final Report The final report will reflect input received during Task 1-3 and will be presented at one public meeting before the city commission. The public will be notified of the meeting and have access to related documents through the city’s website. Media outlets will be notified well in advance. 4.2 Final Report Changes Any changes made during the final public hearing will be incorporated into the document, and the final report will be delivered to the city prior to the closure of the contract. Deliverables BendonAdams and Orion Planning & Design acknowledge that two hard copies and a PDF version of all preliminary and final drafts will be provided to City planning staff, that all documents will be provided at least 14 working days prior to any public hearing or meeting with the City Commission in an electronic format, ADA accessible, approved by the City; and that all work submitted will become property of the City of Bozeman. 89 EXHIBIT B – COST The budget by task is shown below in Table 1. The total project cost is estimated not to exceed $66,525. Costs include all labor, travel, and additional expenses. BendonAdams invoices monthly with payment due within 30 days unless negotiated otherwise. Table 1 Cost and Expenses 90 91 [END OF AGREEMENT EXCEPT SIGNATURE PAGE] IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first above written. CITY OF BOZEMAN, MONTANA Bendon Adams LLC, a Colorado Limited Liability Co. By________________________________ By __________________________________ Andrea Surratt, City Manager Sara Adams Principal APPROVED AS TO FORM: By_______________________________ Greg Sullivan, Bozeman City Attorney 92 [END OF AGREEMENT EXCEPT SIGNATURE PAGE] IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first above written. CITY OF BOZEMAN, MONTANA Bendon Adams LLC, a Colorado Limited Liability Co. By________________________________ By __________________________________ Andrea Surratt, City Manager Sara Adams Principal APPROVED AS TO FORM: By_______________________________ Greg Sullivan, Bozeman City Attorney 5.17.18 93