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HomeMy WebLinkAbout18- RFQ - REPLACED - Planning Services for Economic Development and Downtown Bozeman PartnershipPage 1 of 23 CITY OF BOZEMAN, MONTANA Request for Qualifications ARCHITECTURAL, ENGINEERING, LAND SURVEYING AND LAND USE PLANNING PROFESSIONAL SERVICES TO SUPPORT THE ECONOMIC DEVELOPMENT DEPARTMENT AND THE DOWNTOWN BOZEMAN PARTNERSHIP, LLC. Proposals must be received no later than: Tuesday, September 25, 2018 at 4:00 pm MST Deliver hard copies of the proposal to: Robin Crough, City Clerk PO Box 1230 121 North Rouse Ave, Suite 200 Bozeman, MT 59771 Page 2 of 23 NOTICE IS HEREBY given that the City of Bozeman (City) is seeking proposals from firms qualified to provide architectural, engineering, land-surveying and land use planning professional services for providing scalable and responsive assistance to the Economic Development Department (EDD) and the Downtown Bozeman Partnership, LLC. These services will support of the implementation of the 2016 Economic Development Plan and adopted urban renewal plans. The Scope of Services for the proposed contract is for any project that may be initiated by the Economic Development Department, or Downtown Bozeman Partnership, LLC, or within any City urban renewal district (URD) or any district utilizing a tax increment financing (TIF) provision. The City intends to develop a four (4) fiscal year term contract (FY 2019 – FY 2022) with the selected firm to provide professional services as requested by the EDD, including those described in the Scope of Services document. Projects initiated during the initial term of the contract may allow the extension of the contract through their completion. The work may be broken into several projects over multiple fiscal years and may require the submission of proposed scopes of work as requested by staff. At the City’s discretion, the consultant appointment may also lead into potential medium to large-scale projects of yet-to-be-determined scope of work, cost, and schedule. The project scope may include renovation of existing facilities, and/or an addition to an existing facility, or new construction projects. The scope of the projects will be determined based on multiple factors including private partner identification, obtainable priority needs as identified by the URD boards/ workplans and the Bozeman City Commission, and the City’s desire to continue with the selected consultant. This term contract does not obligate the City to utilize the selected firm for any of the services listed in the scope of services. Copies of the proposed Scope of Services, Qualifications Evaluation Criteria and the City's Consultant Selection Procedure are available at the City’s Economic Development Department, 121 North Rouse Avenue, P.O. Box 1230, Bozeman, Montana 59771-1230, or by calling 406-551-0209 during normal business hours. All proposals must be in the format specified, enclosed in a sealed envelope and clearly identified with RFQ title, company name and due date and transmitted via hard copy. Deliver proposals to the City Clerk by Tuesday, September 25, 2018 at 4:00 p.m. MST. It is the sole responsibility of the proposing firm to ensure that proposals are received prior to the closing time as late submittals will not be accepted and will be returned unopened. The physical address is: City Clerk’s Office, Suite 200, (upstairs) City Hall, 121 N. Rouse Avenue, Bozeman, Montana. Page 3 of 23 The mailing address is: City Clerk’s Office, City Hall, P.O. Box 1230, Bozeman, Montana, 59771 (USPS only, shipping companies should be sent to the physical address) NON-DISCRIMINATION The City of Bozeman is an Equal Opportunity Employer. Discrimination in the performance of any agreement awarded under this RFP on the basis of race, color, religion, creed, sex, age, marital status, national origin, or actual or perceived sexual orientation, gender identity or disability is prohibited. This prohibition shall apply to the hiring and treatment of the awarded entity’s employees and to all subcontracts. As such, each entity submitting under this notice shall include a provision wherein the submitting entity, or entities, affirms in writing it will not discriminate on the basis of race, color, religion, creed, sex, age, marital status, national origin, or because of actual or perceived sexual orientation, gender identity or disability and which also recognizes the eventual contract will contain a provision prohibiting discrimination as described above and that this prohibition on discrimination shall apply to the hiring and treatment of the submitting entity’s employees and to all subcontracts. Failure to comply with the above may be cause for the City to deem the submittal non- responsive. For additional information on this RFQ, contact David Fine, Urban Renewal Manager, Economic Development Department, 406-582-2973, dfine@bozeman.net. DATED at Bozeman, Montana, this 29th day of August, 2018. Robin Crough City Clerk For publication on: Sunday, September 2, 2018 Sunday, September 9, 2018 Sunday, September 16, 2018 Page 4 of 23 1. BACKGROUND The City of Bozeman, with an incorporated population of 43,000, is one of the fastest growing micropolitan areas in the country. There are high rates of development in both infill and edge locations in the City, and outside of the City limits as well, and high rates of employment growth in both. Bozeman has a multi-county trade service area. It is the home of Montana State University and a major gateway to Yellowstone National Park. It is the fourth largest city in the state. Bozeman is served by Bozeman Yellowstone International Airport which has the highest annual boardings in the state. At the same time, the City has identified five areas where statutory conditions of blight are present and where stagnation and decline in the tax base requires infrastructure led redevelopment. The EDD employs a tax increment financing provision to facilitate private sector investment in these geographical areas. 2. SCOPE OF SERVICES The Economic Development Department seeks a collaborator in implementing the 2016 Economic Development Plan and the adopted urban renewal and technology district plans. The selected Prime firm, and/ or its assembled team, must possess a breadth and depth of experience in architecture, engineering, land surveying, land use planning, and broadband deployment that supports thoughtful and context sensitive infill redevelopment. They must bring an understanding of how placemaking is essential to urban redevelopment as demonstrated in their previous work. The firm must understand infill development and be able to collaborate on projects with selected private sector partners. Most importantly, the firm must demonstrate an interdisciplinary approach that fuses engineering and architecture with land use planning and public policy to comprehensively support the Economic Development Department and Urban Renewal Districts’ strategic goals. A. Civil Engineering and Land Surveying (1 principal, 1 case study) The scope of services contemplated by the City includes, but is not necessarily limited to: a. Assistance in the planning and financing of improvements to and construction of City infrastructure projects initiated by the EDD, including but not necessarily limited to parks, roads, streetscapes, trails, water distribution, waste water and storm water collection and treatment systems. b. Professional design and permitting of improvements to and expansions of roads, streetscapes, trails, parks, water distribution, waste water and storm water collection and treatment systems. Page 5 of 23 c. Modeling and analysis of water, waste water, stormwater, and transporation options and systems. d. Create site plans for proposed urban renewal and economic development projects. e. Create and propose creative and compelling streetscapes and landscape architecture to complement and enhance the built environment. f. Design and advise the City on improvement projects on Montana Department of Transportation (MDT) controlled National Highway System (NHS) and urban routes. g. Assist the City with right of way and real property negotiation and acquisition. B. Architecture, Structural Engineering, Landscape Architecture, and Land Use Planning (2 principals, 2 case studies) a. The Economic Development Department (EDD) seeks a firm to help it expand and refine its vision for economic development projects. The EDD expects that this vision will start with architectural renderings of prospective project ideas and evolve to fully designed projects. The EDD seeks a creative partner that can articulate, conceptualize and provide compelling visual renderings for the built environment in a revitalized urban context. i. Create compelling visual renderings of proposed design concepts ii. Evaluate applications for rehabilitation grants and provide suggested architectural changes to further enhance projects receiving grant funds. iii. Create site plans for proposed urban renewal projects. iv. Create and propose creative and compelling streetscapes and landscape architecture to complement and enhance the built environment. v. Estimate the costs of demolishing existing structures and preparing land for redevelopment. vi. Design of public parking facilities including parking lots, structured parking garages, underground parking, and liner buildings that screen these facilities from view. vii. Assist staff with researching and preparing amendments to the Municipal Code, including but not limited to zone text amendments, zone map amendments, growth policy amendments and other code amendments to further economic development goals. viii. Perform development build out modeling to support utility planning efforts including water, waste water, and parking. Page 6 of 23 C. Structured Parking Facilities and Parking (1 principal, 1 case study) a. Parking Facility Architecture, Structural Engineering and Civil Engineering i. Design, Plan Review, Bid period and post-bid period activities coordination including construction project management, administration, inspection and closeout. b. Perform site assessment analysis for future parking facilities including surface lots and structured parking facilities. Such analysis must rely, among other criteria, on the potential of the proposed site for generating new adjacent private sector investment in redevelopment. D. Community Broadband Engineering and Business Planning (1 principal, 1 case study) The scope of services contemplated by the City includes, but is not necessarily limited to: a. Fiber optic engineering services and conduit utility business planning services to the support the implementation of the adopted Bozeman Fiber Master Plan to support conduit pathways that facilitate open-access and competitive infrastructure deployment. b. Demonstrated experience with assisting the public sector with broadband conduit utility engineering, master planning and business planning, and facilitating public private partnerships. c. Facilitate the process to create a conduit utility master plan and strategies for facilitating deployment of next-generation broadband by the private sector. The above-referenced general scope may be applied to several projects within the City and may require additional approvals and subsequent task orders which may be negotiated over a period of time. Detailed project schedules will be established during task order negotiations. Proposals must clearly demonstrate the firm's ability to provide the services detailed above given their current staffing. 3. PROJECT DELIVERABLES Deliverables must comply with the Americans with Disabilities Act. To comply with the ADA, documents posted online, including, but not limited to, Adobe PDF files, Microsoft Word documents, Microsoft PowerPoint presentations, and online flipbooks, must be Page 7 of 23 screen-reader friendly. Accessible documents are often part of web-based information or used for support documents. Therefore, under Section 508 standards and WCAG accessibility guidelines, it is critical to ensure all support documents made available to end users can be accessed by people with disabilities. Therefore, any digital material created for the City of Bozeman and its websites will maintain the requirements outline in WCAG 2.0 AA Convention guidelines, Section 508 "Electronic & Accessibility Standards" of the U.S. Rehabilitation Act, the Usability.gov accessibility Guidelines, and ADA Title II State & Local Government nondiscrimination requirements. 4. MANDATORY CONTENT AND SEQUENCE OF SUBMITTAL I. Submission Requirements and Instructions All requirements in this section are mandatory. The City reserves the right to waive any non-material variation. a. Submit one (1) original proposal package and five (5) copies, under sealed envelope, by mail or hand-delivery to the address shown on the front. b. Each submission must be marked on the outside with the Company’s name and the name of the project. c. Any proposal received after the deadline will be returned to the bidder unopened. d. Proposals and required attachments shall be submitted as specified and must be signed by officials authorized to bind the bidder to provide the services. II. Proposal Outline and Content Assemble and submit each proposal in the order below and address the required content/questions. The order in which items are presented is important, as proposal evaluators will follow this order: 1. Cover Sheet (not to exceed one page) a. This sheet will serve as the cover of your proposal. 2. Table of Contents (not to exceed one page) 3. Project Summary and Approach (not to exceed two pages) a. This summary should concisely describe the proposed term contract, its goals, and the how the proposed team will approach the scope of services. 4. Qualifications of the Prime Firm a. Limit 1 page 5. Qualifications of the five (5) Principal Personnel assigned to the scope of work a. Descriptions should be limited to one page per principal and their team Page 8 of 23 b. Descriptions should include a professional profile, credentials, and relevant experience c. Describe your experience and capacity to manage projects of the size and scope proposed. 6. Related Experience with projects similar to the Scope of Services a. Provide case studies featuring prior work for each core area of professional services as delineated in the Scope of Services. The case studies should demonstrate the depth experience of the proposing prime firm and their team. (5 total case studies, not to exceed 2 pages per case study.) b. The case studies must demonstrate an innovative, interdisciplinary, and community-oriented approach to the case study project. Proposing firms should consider the relevance of their selected case studies to the 2009 Downtown Improvement Plan and the 2017 Midtown Action Plan. 7. Location of the Prime Firm a. Describe the ability of the firm and its team to provide on-demand, in- person, and cost-effective support to the EDD staff 8. Present and Projected Workloads a. Affirm, if possible, that the firm can accommodate the projects anticipated by the Scope of Work. 9. Recent and current work for the City of Bozeman shows good attention to detail a. List projects completed for the City of Bozeman over the last 4 years. 10. Recent and current work for the City of Bozeman in Urban Renewal Districts a. List projects completed in Urban Renewal Districts over the last 4 years. 11. References (not to exceed two pages) Provide a minimum of five (5) references one (1) for each case study. References from municipal or county governments are preferred. References help us verify qualifications as it relates to client experiences and the quality of your work. a. Name of agency b. Contact name to include: title, phone number and email c. Population of jurisdiction d. Number of employees e. Project start and completion date f. Brief summary of project 12. Affirmation of nondiscrimination (see Attachment 1) a. Non-completion of the Affirmation of non-discrimination is cause for disqualification of firms. Cost and Expenses Selection is based upon qualifications. Upon selection, a cost for the work will be negotiated. Time for performance and scope of services may be modified during cost Page 9 of 23 negotiations. If a satisfactory price cannot be reached the City reserves the right to terminate negotiations and work with the next most qualified firm. The City reserves the right to require the submittal of additional information that supplements or explains proposal materials. 6. REQUEST FOR QUALIFICATIONS SCHEDULE EVENT DATE/TIME Publication dates of RFP Sunday, September 2, 2018 Sunday, September 9, 2018 Sunday, September 16, 2018 Last day for questions/clarifications Monday, September 17, 2018 Deadline for receipt of proposals Tuesday, September 25, 2018 Evaluation of proposals Anticipated on or about September 27, 2018 Interviews (if necessary) and Selection of consultants Anticipated on or about October 5, 2018 7. CONTACTS Any administrative questions regarding proposal procedures should be directed to: Robin Crough, City Clerk (406) 582-2321, agenda@bozeman.net Questions relating to scope of services and project management may be directed to: David Fine, Urban Renewal Program Manager, (406) 582-2973, dfine@bozeman.net 8. SELECTION PROCESS AND RANKING CRITERIA A review committee will evaluate all responses to the RFQ that meet the submittal requirements and deadline. Submittals that do not meet the requirement or deadline will not be considered. The review committee will rank the proposals and may arrange interviews with the finalist(s) prior to selection. Selection may be made directly based on the written RFQ submission. If interviews occur, the selection of finalists to be interviewed will be made by a selection committee representing the City of Bozeman (City) and potentially members of City urban Page 10 of 23 renewal boards or their staff. The selection of interview candidates will be based on an evaluation of the written responses to the RFQs. Award will be made following contract negotiations to the most qualified firm at a price which the City determines to be fair and reasonable taking into account the qualifications of the team as related to the services to be rendered, as well as the scope, complexity, and professional nature thereof. If the City is unable to negotiate a satisfactory contract with the firm initially selected at a price the agency deems to be fair and reasonable, negotiations with that firm will be formally terminated and the agency shall select another firm in accordance with 18-8-204 MCA, and continue until an agreement is reached or the process is terminated. All submitted proposals must be complete and contain the information required as stated in the "Request for Qualifications.” 9. SELECTION CRITERIA Proposals will be evaluated based on the following criteria:  [5 points] Project Summary and Approach (not to exceed two pages)  [5 points] Qualifications of the Prime Firm  [25 points] Qualifications of the five (5) Principal Personnel  [25 points] Case Studies  [5 points] Location of the Firm o Describe the ability of the firm and its team to provide on-demand, in- person, and cost-effective support to the EDD staff  [5 points] Present and Projected Workloads o Affirm, if possible, that the firm can accommodate the projects anticipated by the Scope of Work.  [5 points] Recent and current work for the City of Bozeman shows good attention to detail o List projects completed for the City of Bozeman over the last 4 years.  [5 points] Recent and current work for the City of Bozeman in Urban Renewal Districts o List projects completed in Urban Renewal Districts over the last 4 years. Page 11 of 23 10. RESERVATION OF RIGHTS; LIABILITY WAIVER All proposals submitted in response to this RFQ become the property of the City and public records and, as such, may be subject to public review. The City reserves the right to accept or reject any and all proposals; to add or delete items and/or quantities; to amend the RFQ; to waive any minor irregularities, informalities, or failure to conform to the RFQ; to extend the deadline for submitting proposals; to postpone award for up to 30 days; to award one or more contracts, by item or task, or groups of items or tasks, if so provided in the RFQ and if multiple awards or phases are determined by the City to be in the public interest; and to reject, without liability therefore, any and all proposals upon finding that doing so is in the public interest. The City of Bozeman reserves the right to reject the proposal of any person/firm who previously failed to perform properly to the satisfaction of the City of Bozeman, or complete on time agreements of similar nature, or to reject the proposal of any person/firm who is not in a position to perform such an agreement satisfactorily as determined by the City of Bozeman. The City of Bozeman reserves the right to determine the best qualified Contractor and negotiate a final scope of service and cost, negotiate a contract with another Contractor if an agreement cannot be reached with the first selected Contractor, or reject all proposals. The professional services contract between the City of Bozeman and the successful Contractor will incorporate the Contractor's scope of service and work schedule as part of the agreement (see Attachment 2 for form of professional services agreement). This RFQ does not commit the City to award a contract. The City assumes no liability or responsibility for costs incurred by firms in responding to this request for proposals or request for interviews, additional data, or other information with respect to the selection process, prior to the issuance of an agreement, contract or purchase order. The Contractor, by submitting a response to this RFQ, waives all right to protest or seek any legal remedies whatsoever regarding any aspect of this RFQ. The City reserves the right to cancel, in part or in its entirety, this RFQ including, but not limited to: selection procedures, submittal date, and submittal requirements. If the City cancels or revises this RFQ, all Contractors who submitted proposals will be notified using email. Projects under any contract are subject to the availability of funds. Page 12 of 23 11. CONFIDENTIALITY AND DISCLOSURE OF INFORMATION Upon completion of negotiations or a determination that no proposals will be pursued, one copy of each submitted proposal shall be retained for the official files of the City and will be considered a public record. 12. NO PARTNERSHIP/BUSINESS ORGANIZATION Nothing in this RFQ or in any subsequent agreement, or any other contract entered into as a result of this RFQ, shall constitute, create, give rise to or otherwise be recognized as a partnership or formal business organization of any kind between or among the City and respondent. 13. EMPLOYMENT RESTRICTION AND INDEMNITY No person who is an owner, officer, employee, contractor, or consultant of a respondent shall be an officer or employee of the City. No rights of the City’s retirement or personnel rules accrue to a respondent, its officers, employees, contractors, or consultants. Respondents shall have the responsibility of all salaries, wages, bonuses, retirement, withholdings, worker’s compensation and occupational disease compensation, insurance, unemployment compensation other benefits and taxes and premiums appurtenant thereto concerning its officers, employees, contractors, and consultants. Each respondent shall save and hold the City harmless with respect to any and all claims for payment, compensation, salary, wages, bonuses, retirement, withholdings, worker’s compensation and occupational disease compensation, insurance, unemployment compensation other benefits and taxes and premiums in any way related to each respondent’s officers, employees, contractors and consultants. 14. ACCESSIBILITY Upon reasonable notice, the City will provide assistance for those persons with sensory impairments. For further information please contact the ADA Coordinator Mike Gray at 406-582-3232 or the City’s TTY line at 406-582-2301. Page 13 of 23 15. GOVERNING LAW This RFQ and any disputes arising hereunder or under any future agreement for the sale and purchase of shares, interests, or rights shall be governed hereafter and construed and enforced in accordance with the laws of the State of Montana, without reference to principles of choice or conflicts of laws. 16. MISCELLANEOUS No conversations or agreements with any officer, employee, or agent of the City shall affect or modify any term of this RFQ. Oral communications or any written/email communication between any person and the designated contact City staff shall not be considered binding. Page 14 of 23 Statement of Non-Discrimination – Attachment 1 ____________________________________(name of entity submitting) hereby affirms it will not discriminate on the basis of race, color, religion, creed, sex, age, marital status, national origin, or because of actual or perceived sexual orientation, gender identity or disability and acknowledges and understands the eventual contract will contain a provision prohibiting discrimination as described above and this prohibition on discrimination shall apply to the hiring and treatments or proposer’s employees and to all subcontracts. ______________________________________ Name and title of person authorized to sign on behalf of submitter Page 15 of 23 FORM OF PROFESSIONAL SERVICES AGREEMENT – Attachment 2 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, ____________, _______________, 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 _____ day of ______________, 201_. 3. Scope of Work: Contractor 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 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 Page 16 of 23 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 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 Page 17 of 23 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; 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 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. 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. Page 18 of 23 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; 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 Page 19 of 23 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. 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 Page 20 of 23 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 _________________ 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 _____________ 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. b. Contractor’s Representative: The Contractor’s Representative for the purpose of this Agreement shall be _____________________ 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 Page 21 of 23 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. 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. Page 22 of 23 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. Page 23 of 23 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 __________________________. [END OF AGREEMENT EXCEPT SIGNATURE PAGE]