HomeMy WebLinkAbout19- Construction Agreement - Ingram-Clevenger, Inc. - Bozeman Public Library Resource Hub CONSTRUCTION AGREEMENT
This Construction Agreement is made this Eleventh Day of February, Two-
Thousand Nineteen, by and between the CITY OF BOZEMAN, MONTANA, a municipal
corporation organized and existing under the laws of the State of Montana, P.O. Box
1230, Bozeman, Montana 59771-1230 ("City"), and Ingram-Clevenger, Inc.,
("Contractor").
In consideration of the covenants, agreements, representations, and warranties
contained herein, the parties agree as follows:
1. Work to be Performed:
a. A description of the work to be performed to Bozeman Public
Library - Resource Hub (the "Construction Project") and Contractor's duties are
set forth in the drawings and specifications prepared by Comma-Q Architecture,
Inc., dated January 4, 2019.
b. Prior to the commencement of any work on the Construction Project,
Contractor's representatives and City's representatives shall hold a meeting to
establish a working understanding among the parties as to the scope of the
Construction Project and duties of the Contractor. At this meeting, Contractor and
City shall resolve any outstanding issues related to the plans, designs, drawings,
and specifications. If the parties are unable to resolve these issues and the City
fails, refuses, or is unable to approve the same, no work shall commence on the
Construction Project until such issues are resolved, and the City approves the
related plans, designs, drawings, and specifications.
C. Except as provided elsewhere in this Agreement, Contractor shall
furnish all the labor, materials, equipment, tools, and services necessary to
perform and complete the Construction Project.
d. During work on the Construction Project, and as part of the final
completion of the Construction Project, Contractor shall clean up the Project site,
including the removal and satisfactory disposal of all waste, garbage, excess
materials, and equipment, and the performance of any other work necessary to
restore the site to at least as good order and condition as at the commencement
of the Construction Project.
2. City-Supplied Materials: The City may supply materials from time to time
in furtherance of the Construction Project. Such materials will be noted as an
addendum to this Agreement.
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3. Time of Performance: Contractor shall begin the Construction Project after
receiving a Notice to Proceed from City and shall complete the Construction
Project no later than March 29, 2019. Time is of the essence of completion of all
work and each phase of the Construction Project.
4. Liquidated Damages: If the Construction Project is not completed within
the time provided by this Agreement, the City may deduct for each day the
Construction Project remains uncompleted the sum of Five Hundred Dollars
($500.00) from the compensation hereinafter specified and retain that sum as
payment for liquidated damages sustained by reason of the Contractor's failure to
complete the Construction Project on time.
5. Compensation:
a. City shall pay to Contractor, and Contractor shall accept as full
payment for the performance of this Agreement and the Construction Project, the
amount of Twenty Thousand Five Hundred dollars ($20,500.00).
b. If work not included within the original Construction Documents is
requested by City, such additional work and the related compensation shall be
agreed to in writing by both parties prior to commencement of the additional work
("Change Order").
C. City shall retain five percent (5%) of the total amount of
compensation to be paid to the Contractor to ensure compliance with the terms
and conditions of this Agreement and the timely completion of the Construction
Project and any and all "punch list" items ("Retainage Amount"). The Retainage
Amount shall be paid to Contractor thirty (30) days after the City's final acceptance
of the portion of work for which a separate price is stated in the specifications for
the Construction Project.
e. Upon acceptance of final payment and for other good and valuable
consideration, Contractor shall and hereby does release and forever discharge
City, its officers, agents, and employees of and from any and all claims, demands,
actions, causes of action, obligations, and liabilities of every kind and character
whatsoever, in law and in equity, whether now known or in the future discovered,
arising from or related to this Agreement or the Construction Project that
Contractor may have or assert against City, its officers, agents, and employees.
6. Inspection and Testing:
a. City has the right to inspect and test any and all work performed by
Contractor on the Construction Project. Contractor shall allow City and its agents
access to the Construction Project at all times and shall provide every reasonable
facility for the purpose of such inspection and testing, including temporarily
discontinuing portions of the work or uncovering or taking down portions of the
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finished work. Any inspection and testing performed by the City and its agents is
for the sole benefit of the City and shall not relieve the Contractor of its duty,
responsibility, and obligation to ensure that the work strictly complies with the
Agreement terms and conditions and all applicable laws and building and safety
codes. City's inspection and testing shall not be deemed or considered
acceptance by the City of any portion of the Construction Project. City's inspection
and testing shall not serve to nullify, amend, or waive any warranties provided by
the Contractor under this Agreement.
b. Contractor shall, without charge, replace any material or correct any
work found by the City or its agents to be defective or otherwise not in compliance
with the terms and conditions of this Agreement. In the event Contractor fails to
replace or correct any defective work or materials after reasonable written notice
by the City to do so, the City may take such corrective action, either with its own
materials and employees or by retaining any third party to do so, and deduct the
cost and expense of such corrective action from the Contractor's compensation.
7. Partial Utilization of Construction Project: City shall have the right to
use or occupy any portion of the Construction Project that City and Contractor
mutually agree is substantially completed and constitutes a separately functioning
and usable part of the Construction Project for its intended purpose without
significant interference with Contractor's performance of the remaining portions of
the Construction Project. In the event City takes possession of any portion of the
Construction Project, such possession shall not be deemed an acceptance of the
Construction Project, in whole or in part. City's use of any portion of the
Construction Project shall not be grounds for extensions of any construction
deadlines or a change in the Contractor's compensation. Contractor's warranties
shall run from the completion of the total Construction Project and not from the
date the City may take possession of selected portions of the Construction Project.
8. Related Work at the Site: Nothing in this Agreement shall prevent or
preclude City, through its own employees or by contract with any third party, from
performing other work related to the Construction Project at the construction site;
provided such related work is not otherwise addressed in this Agreement and
provided such related work does not otherwise interfere with Contractor's
performance of this Agreement or the completion of the Construction Project.
Contractor shall afford any City employee, agent or representative, or any third
party under contract with the City to perform the related work, proper and safe
access to the construction site, a reasonable opportunity for the introduction and
storage of materials and equipment, the opportunity to perform the related work,
and shall properly coordinate the Contractor's work on the Construction Project
with the related work.
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9. Contractor's Warranties: Contractor represents and warrants as follows:
a. Unless otherwise specified by the terms of this Agreement, all
materials and equipment used by Contractor on the Construction Project shall be
new and where not otherwise specified, of the most suitable grade for their
intended uses.
b. All workmanship and materials shall be of a kind and nature
acceptable to the City.
C. All equipment, materials, and labor provided to, on, or for the
Construction Project must be free of defects and nonconformities in design,
materials, and workmanship for a minimum period beginning with the
commencement of the work on the Construction Project and ending one (1) year
from the final completion and acceptance by the City of the Construction Project,
regardless of whether such equipment, materials, or labor were supplied directly
by Contractor or indirectly by Contractor's subcontractors or suppliers. Other
express warranties on materials that provide for a warranty period longer than one
year apply for the period of that express warranty and are not reduced by this
provision. Upon receipt of City's written notice of a defective or nonconforming
condition during the warranty period, Contractor shall take all actions, including
redesign and replacement, to correct the defective or nonconforming condition
within a time frame acceptable to the City and at no additional cost to the City.
Contractor shall also, at its sole cost, perform any tests required by City to verify
that such defective or nonconforming condition has been corrected. Contractor
warrants the corrective action taken against defective and nonconforming
conditions for a period of an additional one (1) year from the date of City's
acceptance of the corrective action.
d. Contractor and its sureties are liable for the satisfaction and full
performance of all warranties.
e. Contractor shall give its personal attention to the faithful prosecution
of the completion of the Construction Project and Contractor, or its duly authorized
representative assigned to serve as the Construction Project Manager, shall be
personally present at the site of the Construction Project during working hours for
the term of this Agreement until the completion of the Construction Project.
f. Contractor shall have a complete, accurate, and up-to-date set of
construction plans, drawings, and specifications on site at all times.
g. Contractor has examined all available records and made field
examinations of the site of the Construction Project. Contractor has knowledge of
the field conditions to be encountered during the Construction Project. Contractor
has knowledge of the types and character of equipment necessary for the work,
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the types of materials needed and the sources of such materials, and the condition
of the local labor market.
h. Contractor is responsible for the safety of the work and shall maintain
all lights, guards, signs, temporary passages, or other protections necessary for
that purpose at all times.
i. All work must be performed at Contractor's risk, and Contractor shall
promptly repair or replace all damage and loss at its sole cost and expense
regardless of the reason or cause of the damage or loss; provided, however,
should the damage or loss be caused by an intentional or negligent act of the City,
the risk of such loss shall be placed on the City.
j. Contractor is responsible for any loss or damage to materials, tools,
or other articles used or held for use in the completion of performance of the
Construction Project.
k. Contractor's performance must be without damage or disruption to
any other work or property of the City or of others and without interference with the
operation of existing machinery or equipment.
I. Title to all work, materials, and equipment covered by any payment
of Contractor's compensation by City, whether directly incorporated into the
Construction Project or not, passes to City at the time of payment, free and clear
of all liens and encumbrances.
10. Delays and Extensions of Time: If Contractor's performance of this
Agreement is prevented or delayed by any unforeseen cause beyond the control
of the Contractor, including acts or omissions of the City, Contractor shall, within
ten (10) days of the commencement of any such delay, give the City written notice
thereof. Further, Contractor shall, within ten (10) days of the termination of such
delay, give the City written notice of the total actual duration of the delay. If the
City is provided with these required notices and if the City determines that the
cause of the delay was not foreseeable, was beyond the control of the Contractor,
and was not a result of the fault or negligence of the Contractor, then the City will
determine the total duration of the delay and extend the time for performance of
the Agreement accordingly. Unless the delay is caused by the intentional
interference of the City with the Contractor's performance, Contractor shall make
no claim for damages or any other claim other than for an extension of time as
herein provided by reason of any delays.
11. Suspension:
a. The City may, by written notice to the Contractor and at its
convenience for any reason, suspend the performance of all or any portion of the
work to be performed on the Construction Project ("Notice of Suspension"). The
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Notice of Suspension shall set forth the time of suspension, if then known to the
City. During the period of suspension, Contractor shall use its best efforts to
minimize costs associated with the suspension.
b. Upon Contractor's receipt of any Notice of Suspension, unless the
notice requires otherwise, Contractor shall: (1) immediately discontinue work on
the date and to the extent specified in the Notice of Suspension; (2) place no further
orders or subcontracts for materials, services, or equipment; (3) promptly make
every reasonable effort to obtain suspension upon terms satisfactory to City of all
orders, subcontracts, and rental agreements to the extent that they relate to the
performance of the work suspended; and (4) continue to protect and maintain the
Project, including those portions on which work has been suspended.
C. As compensation for the suspended work, Contractor will be
reimbursed for the following costs, reasonably incurred, without duplication of any
item, and to the extent that such costs directly resulted from the suspension: (1) a
standby charge paid during the period of suspension which will be sufficient to
compensate Contractor for keeping, to the extent required in the Notice of
Suspension, Contractor's organization and equipment committed to the Project in
standby status; (2) all reasonably incurred costs for the demobilization of
Contractor's and subcontractor's crews and equipment; (3) an equitable amount
to reimburse Contractor for the cost to protect and maintain the Project during the
period of suspension; and (4) an equitable adjustment in the cost of performing the
remaining portion of the work post-suspension if, as a direct result of the
suspension, the cost to Contractor of subsequently performing the remaining work
on the Construction Project has increased or decreased.
d. Upon receipt of written notice by the City to resume the suspended
work ("Notice to Resume Work"), Contractor shall immediately resume
performance of the suspended work as to the extent required in the Notice to
Resume Work. Any claim by Contractor for time or compensation described in
Section 11(c) shall be made within fifteen (15) days after receipt of the Notice to
Resume Work and Contractor shall submit a revised Construction Schedule for the
City's review and approval. Contractor's failure to timely make such a claim shall
result in a waiver of the claim.
e. No compensation described in Section 11(c) shall be paid and no
extension of time to complete the Construction Project shall be granted if the
suspension results from Contractor's non-compliance with or breach of the terms
or requirements of this Agreement.
12. 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 City may, by written
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notice, terminate this Agreement and the Contractor's right to proceed with all or
any part of the Construction Project ("Termination Notice Due to Contractor's
Fault"). The City may then take over the Construction Project and complete it,
either with its own resources or by re-letting the contract to any other third party,
and may immediately take possession of and use such materials, appliances,
tools, and equipment as may be on the site and which may be necessary for the
completion of the Construction Project.
b. In the event of a termination pursuant to this Section 12, Contractor
shall be entitled to payment only for those services Contractor actually rendered.
In the case of a lump sum or unit price contract, Contractor shall not be entitled to
any further payment until the Construction Project has been completed. Upon
completion of the Construction Project, if the unpaid balance of the Contractor's
compensation exceeds the cost to the City of completing the work, including all
costs paid to any subcontractors or third parties retained by the City to complete
the Construction Project and all administrative costs resulting from the termination
("City's Cost for Completion"), such excess shall be paid to the Contractor. If the
City's Cost for Completion exceeds the unpaid balance of the Contractor's
compensation, then Contractor and its sureties shall be liable for and shall pay the
difference, plus interest at the rate applicable to court judgments, to the City.
C. Any termination provided for by this Section 12 shall be in addition to
any other remedies to which the City may be entitled under the law or at equity.
d. In the event of termination under this Section 12, 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.
13. 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 work on the Construction Project,
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
work on the Construction Project, discontinue placing orders for materials,
supplies, and equipment for the Construction Project, and make every reasonable
effort to cancel all existing orders or contracts upon terms satisfactory to the City.
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Contractor shall do only such work as may be necessary to preserve, protect, and
maintain work already completed, in progress, or in transit to the construction site.
C. In the event of a termination pursuant to this Section 13, Contractor
is entitled to payment only for those services Contractor actually rendered and
materials actually purchased or which Contractor has made obligations to
purchase on or before the receipt of the Notice of Termination for City's
Convenience, and reasonably incurred costs for demobilization of Contractor's and
any subcontractor's crews. It is agreed that any materials that City is obligated to
purchase from Contractor will remain the City's sole property.
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.
14. 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 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 to assert such claim.
15. Representatives:
a. City's Representative: The City's Representative for the purpose
of this Agreement shall be "City Representative & Title" 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 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 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"Contractor Representative" 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.
16. Locating Underground Facilities: Contractor shall be responsible for
obtaining and determining the location of any underground facilities, including but
not limited to, the location of any pipelines or utility supply, delivery, or service lines
in accordance with the provisions of §69-4-501, et seq., MCA. Contractor shall
make every effort to avoid damage to underground facilities and shall be solely
responsible for any damage that may occur. If City personnel assume
responsibility for locating any underground facilities, this fact shall be noted in
writing prior to commencement of such location work.
17. 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, pay all fees and charges in connection therewith, and
perform all surveys and locations necessary for the timely completion of the
Construction Project.
18. Ownership of Documents; Indemnification: All plans, designs,
drawings, specifications, documents, sample results and data, in whatever
medium or format, originated or prepared by or for Contractor in contemplation of,
or in the course of, or as a result of this Agreement or work on the Construction
Project, shall be promptly furnished to the City ("City Documents and Information").
All City Documents and Information shall be the exclusive property of the City and
shall be deemed to be works-for-hire. Contractor hereby assigns all right, title, and
interest in and to the City Documents and Information, including but not limited to,
all copyright and patent rights in and to the City Documents and Information.
Neither party grants to the other any express or implied licenses under any patents,
copyrights, trademarks, or other intellectual property rights, except to the extent
necessary to complete its obligations to the other under this Agreement.
19. 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 generajon 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-
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discrimination, affirmative action, and utilization of minority and small business
statutes and regulations.
20. Nondiscrimination: The Contractor shall have a policy to provide equal
employment opportunity in accordance with all applicable state and federal anti-
discrimination laws, regulations, and contracts. The Contractor shall 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.
21. Intoxicants; DOT Drug and Alcohol Regulations: Contractor shall not
permit or suffer the introduction or use of any intoxicants, including alcohol or illegal
drugs, upon the site of the Construction Project. 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.
22. Labor Relations:
a. In the event that, during the term of this Agreement and throughout
the course of Contractor's performance of the Construction Project, any labor
problems or disputes of any type arise or materialize which in turn cause any work
on the Construction Project to cease for any period of time, Contractor specifically
agrees to take immediate steps, at its own expense and without expectation of
reimbursement from City, to alleviate or resolve all such labor problems or
disputes. The specific steps Contractor shall take to resume work on the
Construction Project 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 City so as to permit the work on the Construction
Project to resume and be completed within the time frames set forth in the
Construction Schedule at no additional cost to City.
b. 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.
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23. Subcontractors:
a. Contractor may employ subcontractors for any work on the
Construction Project. Contractor shall provide City with a list of all subcontractors
employed.
b. Contractor remains fully responsible for the acts and omissions of
any subcontractor, just as Contractor is for its own acts and omissions, and
Contractor shall remain fully responsible and liable for the timely completion of the
Construction Project.
C. Contractor is solely liable for any and all payments to subcontractors.
Contractor shall hold all payments received from the City in trust for the benefit of
subcontractors, and all such payments shall be used to satisfy obligations of the
Construction Project before being used for any other purpose. Contractor shall
make any payments due to any subcontractor within seven (7) days of Contractor's
receipt of payment, including a proportional part of the retainage Contractor has
received from the City. In the event of a dispute regarding any subcontractor's
invoice, Contractor shall promptly pay the undisputed amount to the subcontractor
and notify the subcontractor in writing of the amount in dispute and the reasons for
the dispute. Any withholding of payment must comply with the requirements of
§28-2-2103, MCA. In the event Contractor is unwilling or unable to make timely
and proper payment to any subcontractor, City may elect to withhold any payment
otherwise due to Contractor and upon seven (7) days' written notice to Contractor,
may pay subcontractor by direct or joint payment.
24. Indebtedness and Liens: Before City may make any final payment to
Contractor, Contractor shall furnish City with satisfactory proof that there are no
outstanding debts or liens in connection with the Construction Project. If the
Contractor allows any indebtedness to accrue to subcontractors or others during
the progress of the work, and fails to pay or discharge the same within five (5) days
after demand, then City may either withhold any money due to Contractor until
such indebtedness is paid or apply the same towards the discharge of the
indebtedness. If any lien or claim is filed or made by any subcontractor, material
supplier, or any other person, the Contractor shall immediately notify the City and
shall cause the same to be discharged of record within thirty (30) days after its
filing.
25. Hazard Communication: Contractor shall comply with all hazard
communication requirements dictated by the Environmental Protection Agency,
the Montana Department of Agriculture, OSHA, Hazard Communications
Standard, 29 CFR 1910.1200, and applicable City ordinances. Contractor shall
supply a chemical list, the associated material safety data sheets (MSDS), and
other pertinent health exposure data for chemicals that the Contractor's,
subcontractor's or the City's employees may be exposed to while working on City
property during the course of the Construction Project. One copy of this
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documentation must be delivered to City to the attention of the City's
Representative. This documentation must be delivered before work involving
these chemicals may commence.
26. Accounts and Records: During the term of this Agreement and for two (2)
years following the City's final acceptance of the Construction Project, Contractor
shall maintain accounts and records related to the Construction Project. Upon
reasonable notice, City shall have the right to inspect all such accounts and
records, including but not limited to, Contractor's records, books, correspondence,
instructions, drawings, specifications, field and site notes, receipts, invoices, bills,
contracts, or other documents relating to the Construction Project.
27. Indemnification; Insurance; Bonds:
a. 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; or (ii) any negligent, reckless, or
intentional misconduct of any of the Contractor's agents.
b. 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).
C. Contractor's indemnity under this Section shall be without regard to
and without any right to contribution from any insurance maintained by City.
d. 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.
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• Owner's and Contractor's Protective Liability: one policy designating
the City (including its agents, representatives, employees, and officers) as
the insured and another independent policy designated the City's
Representative (including its consultants, consultants, agents and
employees) as the insured on the declarations with both policies covering:
(i) operations performed by the Contractor under this Agreement for the
City; and (ii) the City's and City's Representatives acts or omissions,
including negligent acts, in connection with its general supervision of the
work of the Contractor's and its subcontractors - $1,000,000 per
occurrence; $2,000,000 aggregate;
• Contractual Liability Insurance (covering the Contractor's indemnity
obligations described in this Agreement) - $1,000,000 per occurrence
$2,000,000 aggregate
The amounts of insurance provided 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
thirty (30) day notice of cancellation or non-renewal. 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.
L Pursuant to the City's authority provided for in 18-2-201(4), the
Contractor shall not be required to provide bonds as required by 18-2-201(1) under
this Agreement.
28. Taxes: Contractor is obligated to pay all taxes of any kind or nature and
make all appropriate employee withholdings. Contractor understands that all
contractors or subcontractors working on a publicly funded project are required to
pay or have withheld from earnings a license fee of one percent (1%) of the gross
contract price if the gross contract price is Five Thousand Dollars ($5,000) or more.
This license fee is paid to the Montana Department of Revenue.
29. 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.
Pace 14
C. 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.
f. 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.
g. These obligations shall survive termination of this Agreement and the
services performed hereunder.
h. 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 shown below:
• Workers' Compensation — not less than statutory limits;
• 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;
• Products and Completed Operations — $1,000,000;
• Automobile Liability - $1,000,000 property damage/bodily injury;
$2,000,000 annual aggregate (all owned, hired, non-owned vehicles);
• Builder's Risk/Property Insurance at least as broad as that provided by
the ISO Special Causes of Loss Form (CP10 30) naming the City in an
amount equal to or greater than of Contractor's compensation under this
Agreement, or full replacement value of the work (covering at a minimum
all work, buildings, materials and equipment, whether on site or in transit,
loss due to fire, lightning, theft, vandalism, malicious mischief, earthquake,
collapse, debris removal, demolition occasioned by enforcement of laws,
water damage, flood if site within a flood plain, repair or replacement
costs, testing and start-up costs) on an all risk coverage basis. This
insurance must include waivers of subrogation between the City and
Contractor to the extent that damage to the Construction Project or the
Bozeman Public Library is covered by other insurance;
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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 shall be resolved in a
court of competent jurisdiction in compliance with the Applicable Law provisions of
this Agreement.
30. Survival: Contractor's indemnification and warranty obligations shall
survive the termination or expiration of this Agreement for the maximum period
allowed under applicable law.
31. 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.
32. Waiver: A waiver by City of any default or breach by Contractor of any
covenants, terms, or conditions of this Agreement does not limit City's right to
enforce such covenants, terms, or conditions or to pursue City's rights in the event
of any subsequent default or breach.
33. Severability: If any portion of this Agreement is held to be void or
unenforceable, the balance thereof shall continue in effect.
34. Applicable Law: The parties agree that this Agreement is governed in all
respects by the laws of the State of Montana.
35. Binding Effect: This Agreement is binding upon and inures to the benefit
of the heirs, legal representatives, successors, and assigns of the parties.
36. Amendments: This Agreement may not be modified, amended, or changed
in any respect except by a written document signed by all parties.
37. 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.
38. Counterparts: This Agreement may be executed in counterparts, which
together constitute one instrument.
39. Assignment: Contractor may not assign this Agreement in whole or in part
without the prior written consent of the City. No assignment will relieve Contractor
of its responsibility for the performance of the Agreement and the completion of
the Construction Project. Contractor may not assign to any third party other than
Contractor's subcontractors on the Construction Project, the right to receive
monies due from City without the prior written consent of City.
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40. Authority: Each party represents that it has full power and authority to enter
into and perform this Agreement and the person signing this Agreement on behalf
of each party has been properly authorized and empowered to sign this
Agreement.
41. Independent Contractor: The parties agree and acknowledge that in the
performance of this Agreement and the completion of the Construction Project,
Contractor shall render services as an independent contractor and not as the
agent, representative, subcontractor, or employee of the City. The parties further
agree that all individuals and companies retained by Contractor at all times will be
considered the agents, employees, or independent contractors of Contractor and
at no time will they be the employees, agents, or representatives of the City.
42. 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.
IN WITNESS WHEREOF, Contractor and City have caused this Agreement to be
executed, effective on the date written above, and intend to be legally bound thereby.
CITY OF BOZE_MAN, MONTANA CONTRACTOR
By: -- - By:
Andrea Surratt, City Manager
Print Name:
Title:
APPROVED O FORM (§18-2-406, MCA):
By:
re Sullivan, City Attorney
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