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HomeMy WebLinkAbout05-20-19 City Commission Packet Materials - C6. PSA with Stahly Engineering for Front Street Interceptor Sewer Replacement Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Bob Murray, Project Engineer Shawn Kohtz, City Engineer SUBJECT: Front Street Interceptor Sewer Main Replacement Project – Professional Services Agreement. MEETING DATE: May 20th, 2019 AGENDA ITEM TYPE: Consent RECOMMENDATION: Approve and authorize City Manager to sign the Professional Services Agreement with Stahly Engineering and Associates, Inc. BACKGROUND: Attached is a copy of the partially executed Professional Services Agreement with Stahly Engineering and Associates, Inc. for the Front Street Interceptor Sewer Main Replacement Project. The document is in the City’s standard format. Bozeman Health agreed to hire an engineer to complete the design of the Front Street Interceptor Sewer Main Replacement Project. The increase in capacity provided by the larger pipe is necessary for continued development of their property. The agreement with Bozeman Health stipulated that the City would take over the project during the bidding and construction phases. The project design is nearing completion. A Request for Proposals for the construction engineering services was published in the Bozeman Daily Chronicle on January 13th and 20th, with the proposals being due on February 1st. Proposals were received from 3 firms on the project which were distributed to a selection committee of 3 city employees. The written proposals were scored and Stahly Engineering and Associates, Inc. was selected the most qualified to complete the project. Bidding and construction phases are paid on a time and materials basis, so only those hours needed to complete the project will be compensated. UNRESOLVED ISSUES: None ALTERNATIVES: As suggested by the City Commission FISCAL EFFECTS: $185,879.00 from the Wastewater Impact Fee Fund (WWIF11). Attachments: Professional Services Agreement Report compiled on: 5/7/19 50 ^ssg&9*'ux0*'v<,v^!553^^0co.«PROFESSIONAL SERVICES AGREEMENTTHIS AGREEMENT is made and entered into thisday of_,201_,byand between the CITY OF BOZEMAN, MONTANA, a self governing municipal corporationorganized 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, hereinafterreferred to as "City," and, Stahly Engineering and Associates, Inc, 851 Bridger Drive, Suite 1,Bozeman, MT 59715, hereinafter referred to as "Contractor.""In consideration of the mutual covenants and agreements herein contained, the receipt andsufficiency whereof being hereby acknowledged, the parties hereto agree as follows:1. Purpose: City agrees to enter this Agreement with Contractor to perform for Cityservices described in the Scope of Services attached hereto as Exhibit "A" and by this reference madea part hereof.2.Term/Effective Date: This Agreement is effective upon the date of its execution.3. Scope of Services: Contractor will perform the work and provide the services in theScope 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 theAgreement amount will be performed by Contractor after written request by the City, and willbecome an additional charge over and above the amount listed in the Scope of Services. The Citymust agree in writing upon any additional charges. Compensation for these services shall be basedon the ENGDsTEER's Direct Labor Cost times a factor of 3.136 for services rendered which shallcover Direct Labor, Direct Labor Overhead, General & Administrative Overhead andProfit. Reimbursable Expenses for Basic Services and Approved Additional Services shall be paidto the ENGINEER by the OWNER in the actual amount of the costs incurred.5. Contractor's Representations: To induce City to enter into this Agreement,Contractor makes the following representations:Professional Services Agreement for Front Street InterceptorFY 2017-FY 2018Page 1 of 1051 a. Contractor has familiarized itself with the nature and extent of this Agreement, theScope 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 toperform the services required by this Agreement; that it will perform said services in a professional,competent and timely manner and with diligence and skill; that it has the power to enter into andperform this Agreement and grant the rights granted in it; and that its performance of this Agreementshall 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 orformats necessary to have these services meet this warranty.6. Independent Contractor Status/Labor Relations: The parties agree that Contractoris an independent contractor for purposes of this Agreement and is not to be considered an employeeof the City for any purpose. Contractor is not subject to the terms and provisions of the City'spersonnel policies handbook and may not be considered a City employee for workers' compensationor any other purpose. Contractor is not authorized to represent the City or otherwise bind the City inany 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 ofContractor'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 forworkers' 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.In the event that, during the term of this Agreement, any labor problems or disputes of anytype arise or materialize which in turn cause any services to cease for any period of time. Contractorspecifically agrees to take immediate steps, at its own expense and without expectation ofreimbursement from City, to alleviate or resolve all such labor problems or disputes. The specificsteps Contractor shall take shall be left to the discretion of Contractor; provided, however, thatContractor shall bear all costs of any related legal action. Contractor shall provide immediate reliefto the City so as to permit the services to continue at no additional cost to City.Professional Services Agreement for Front Street InterceptorFY 2017-FY 2018Page 2 of 1052 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 inconnection with any labor problems or disputes or any delays or stoppages of work associated withsuch problems or disputes.7. IndemnityAVaiver of Claims/Insurance: For other than professional servicesrendered, to the fullest extent permitted by law. Contractor agrees to release, defend, indemnify, andhold harmless the City, its agents, representatives, employees, and officers (collectively referred tofor purposes of this Section as the City) from and against any and all claims, demands, actions, feesand costs (including attorney's fees and the costs and fees of expert witness and consultants), losses,expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) ordamages of whatever kind or nature connected therewith and without limit and without regard to thecause 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 orin 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.For the professional services rendered, to the fullest extent permitted by law. Contractoragrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, andexpenses, including reasonable defense attorney fees, to the extent caused by the negligence or willfulmisconduct of the Contractor or Contractor's agents or employees.Such obligations shall not be constmed to negate, abridge, or reduce other rights or obligationsof indemnity that would otherwise exist. The indemnification obligations of this Section must not beconstmed 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 tocontribution from any insurance maintained by City.Should any indemnitee described herein be required to bring an action against the Contractorto assert its right to defense or indemnification under this Agreement or under the Contractor'sapplicable insurance policies required below the indemnitee shall be entitled to recover reasonablecosts and attorney fees incurred in asserting its right to indemnification or defense but only if a courtof competent jurisdiction determines the Contractor was obligated to defend the claim(s) or wasobligated 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 thisProfessional Services Agreement for Front Street InterceptorFY 2017-FY 2018Page 3 of 1053 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, agentsor employees, including the right of contribution for loss or damage to person or property arisingfrom, growing out of, or in any way connected with or incident to the performance of this Agreementexcept "responsibility for his own fraud, for willful injury to the person or property of another, or forviolation of law, whether willful or negligent" as per 28-2-702, MCA.These obligations shall survive termination of this Agreement and the services performedhereunder.In addition to and independent from the above. Contractor shall at Contractor's expense secureinsurance coverage through an insurance company or companies duly licensed and authorized toconduct insurance business in Montana which insures the liabilities and obligations specificallyassumed by the Contractor in this Section. The insurance coverage shall not contain any exclusionfor 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, andexpenses that may be asserted or claimed against, recovered from, or suffered by the City withoutlimit and without regard to the cause therefore and which is acceptable to the City and Contractorshall furnish to the City an accompanying certificate of insurance and accompanying endorsementsin 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 annualaggregate;Automobile Liability - $1,000,000 property damage/bodily injury per accident; andProfessional Liability - $1,000,000 per claim; $2,000,000 annual aggregate.The above amoimts 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 insuranceand 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 andendorsements 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 terminatedor Contractor's decision to terminate any required insurance coverage for any reason.Professional Services Agreement for Front Street InterceptorFY 2017-FY 2018Page 4 of 1054 The City must approve all insurance coverage and endorsements prior to the Contractorcommencins work.8.Termination for Contractor's Fault:a. If Contractor refuses or fails to timely do the work, or any part thereof, or failsto perform any of its obligations under this Agreement, or otherwise breaches any terms orconditions of this Agreement, the City may, by written notice, terminate this Agreement andthe Contractor's right to proceed with all or any part of the work ("Termination Notice Dueto Contractor's Fault"). The City may then take over the work and complete it, either with itsown resources or by re-letting the contract to any other third party.b. In the event of a termination pursuant to this Section 8, Contractor shall beentitled to payment only for those services Contractor actually rendered.c. Any termination provided for by this Section 8 shall be in addition to any otherremedies to which the City may be entitled under the law or at equity.d. In the event of termination under this Section 8, Contractor shall, under nocircumstances, be entitled to claim or recover consequential, special, punitive, lost businessopportunity, lost productivity, field office overhead, general conditions costs, or lost profitsdamages 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 tenninatethis Agreement by written notice to Contractor ("Notice of Termination for City'sConvenience"). The termination shall be effective in the manner specified in the Notice ofTermination for City's Convenience and shall be without prejudice to any claims that the Citymay otherwise have against Contractor.b. Upon receipt of the Notice of Termination for City's Convenience, unlessotherwise directed in the Notice, the Contractor shall immediately cease performance underthis Agreement and make every reasonable effort to refrain from continuing work, incurringadditional expenses or costs under this Agreement and shall immediately cancel all existingorders or contracts upon terms satisfactory to the City. Contractor shall do only such work asProfessional Services Agreement for Front Street InterceptorFY 2017-FY 2018Page 5 of 1055 may be necessary to preserve, protect, and maintain work already completed or immediatelyin progress.c. In the event of a termination pursuant to this Section 9, Contractor is entitledto payment only for those services Contractor actually rendered on or before the receipt of theNotice of Termination for City's Convenience.d. The compensation described in Section 9(c) is the sole compensation due toContractor for its performance of this Agreement. Contractor shall, under no circumstances,be entitled to claim or recover consequential, special, punitive, lost business opportunity, lostproductivity, field office overhead, general conditions costs, or lost profits damages of anynature arising, or claimed to have arisen, as a result of the termination.10.Limitation on Contractor's Damages; Time^fpr 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 expresslywaives any right to claim or recover consequential, special, punitive, lost businessopportunity, lost productivity, field office overhead, general conditions costs, or lost profitsdamages of any nature or kind.b. In the event Contractor wants to assert a claim for damages of any kind ornature, Contractor shall provide City with written notice of its claim, the facts andcircumstances surrounding and giving rise to the claim, and the total amount of damagessought by the claim, within thirty (30) days of the facts and circumstances giving rise to theclaim. In the event Contractor fails to provide such notice, Contractor shall waive all rightsto assert such claim.11. Representatives:a. City's Representative: The City's Representative for the purpose of thisAgreement shall be Robert Murray Jr., PE- Project Engineer or such other individual as Cityshall designate in writing. Whenever approval or authorization from or communication orsubmission to City is required by this Agreement, such communication or submission shall bedirected to James Goehnmg as the City's Representative and approvals or authorizations shallbe issued only by such Representative; provided, however, that in exigent circumstances whenCity's Representative is not available, Contractor may direct its communication or submissionto other designated City personnel or agents as listed above and may receive approvals orProfessional Services Agreement for Front Street InterceptorFY 2017-FY 2018Page 6 of 1056 authorization from such persons.b. Contractor's Representative: The Contractor's Representative for thepurpose of this Agreement shall be Ryan Rittal, PE or such other individual as Contractorshall designate in writing. Whenever direction to or communication with Contractor isrequired by this Agreement, such direction or communication shall be directed to Contractor'sRepresentative; provided, however, that in exigent circumstances when Contractor'sRepresentative is not available, City may direct its direction or communication to otherdesignated 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 ofBozemanbusiness license, and inspections from applicable governmental authorities, and pay all fees andcharges in connection therewith.13 Laws and Resulations: Contractor shall comply fully with all applicable state andfederal 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 disposalof hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, andprovisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, andState 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 personsperforming this Agreement shall be on the basis of merit and qualifications. The Contractor will havea policy to provide equal employment opportunity in accordance with all applicable state and federalanti-discrimination laws, regulations, and contracts. The Contractor will not refuse employment to aperson, bar a person from employment, or discriminate against a person in compensation or in a tenn,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 ormental disability, except when the reasonable demands of the position require an age, physical ormental disability, marital status or sex distinction. The Contractor shall be subject to and complywith Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and allregulations promulgated thereunder. The Contractor shall require these nondiscrimination terms ofits sub-Contractors providing services under this agreement.15. Intoxicants; DOT Drug and Alcohol Reeulations/Safetv and Training: Contractorshall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs,Professional Services Agreement for Front Street InterceptorFY 2017-FY 2018Page 7 of 1057 by any employee or agent engaged in services to the City under this Agreement while on City propertyor in the performance of any activities under this Agreement. Contractor acknowledges it is aware ofand 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. Cityshall have the right to request proof of such compliance and Contractor shall be obligated to furnishsuch proof.The Contractor shall be responsible for instructing and training the Contractor's employeesand agents in proper and specified work methods and procedures. The Contractor shall providecontinuous inspection and supervision of the work performed. The Contractor is responsible forinstructing his employees and agents in safe work practices.16. Modification and Assignabilifry: This Agreement may not be enlarged, modified oraltered except by written agreement signed by both parties hereto. The Contractor may notsubcontract or assign Contractor's rights, including the right to compensation or duties arisinghereunder, without the prior written consent of City. Any subcontractor or assignee will be bound byall of the terms and conditions of this Agreement.17. Reports/Accountability/Public Information: Contractor agrees to develop and/orprovide documentation as requested by the City demonstrating Contractor's compliance with therequirements of this Agreement. Contractor shall allow the City, its auditors, and other personsauthorized by the City to inspect and copy its books and records for the purpose of verifying that thereimbursement of monies distributed to Contractor pursuant to this Agreement was used incompliance with this Agreement and all applicable provisions of federal, state, and local law. TheContractor shall not issue any statements, releases or information for public dissemination withoutprior approval of the City.18. Non-Waiver: A waiver by either party any default or breach by the other party of anyterms or conditions of this Agreement does not limit the other party's right to enforce such term orconditions or to pursue any available legal or equitable rights in the event of any subsequent defaultor breach.19. Attorney's Fees and Costs: That in the event it becomes necessary for either Party ofthis Agreement to retain an attorney to enforce any of the terms or conditions of this Agreement or togive any notice required herein, then the prevailing Party or the Party giving notice shall be entitledto reasonable attorney's fees and costs, including fees, salary, and costs ofin-house counsel to includeCity Attorney.Professional Services Agreement for Front Street InterceptorFY 2017-FY 2018Page 8 of 1058 20. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make allappropriate 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-levelpersonnel from each party duly authorized to execute settlement agreements. Upon mutualagreement of the parties, the parties may invite an independent, disinterested mediator to assistin the negotiated settlement discussions.b. If the parties are unable to resolve the dispute within thirty (30) days from thedate the dispute was first raised, then such dispute may only be resolved in a court ofcompetent jurisdiction in compliance with the Applicable Law provisions of this Agreement.22. Survival: Contractor's indemnification shall survive the termination or expiration ofthis Agreement for the maximum period allowed under applicable law.23. Headings: The headings used in this Agreement are for convenience only and are notbe construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs towhich they refer.24. Severability: If any portion of this Agreement is held to be void or unenforceable, thebalance thereof shall continue in effect.25. Applicable Law: The parties agree that this Agreement is governed in all respects bythe 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 theparties, does not constitute a third-party beneficiary agreement, and may not be relied upon orenforced by a third party.28. Counterparts: This Agreement may be executed in counterparts, which togetherconstitute one instrument.Professional Services Agreement for Front Street InterceptorFY 2017-FY 2018Page 9 of 1059 29. Intesration: This Agreement and all Exhibits attached hereto constitute the entireagreement of the parties. Covenants or representations not contained therein or made a part thereofby reference, are not binding upon the parties. There are no understandings between the parties otherthan as set forth in this Agreement. All communications, either verbal or written, made prior to thedate of this Agreement are hereby abrogated and withdrawn unless specifically made a part of thisAgreement by reference.**** END OF AGREEMENT EXCEPT FOR SIGNATURES****IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and yearfirst above written.CITY OF BOZEMAN, MONTANABy_Andrea Surratt, City ManagerAPPROVED AS TO FORM:By_Greg Sullivan, Bozeman City AttorneySTAHLY ENGINEERINGASSOCIATES, INCCONTRACTOR (Type Name Above)ANDByPrint Name: Dan StahlyPrint Title: Vice PresidentProfessional Services Agreement for Front Street InterceptorFY 2017-FY 2018Page 10 of 1060 Exhibit "A"Construction Administration and Inspection Scope of ServicesFront Street Interceptor Sanitary Sewer Main Replacement Project|Task #Task NameStaffHoursRateTotalScope includedCommentsBidding ServicesPE540$140.00$5,600.001El 420$95.00Total for Task 1$1,900.00Bid Preparation, pre-bid meeting, contractor contract assistance, contractor qualification review, scheduling, submittalreview, pre-construction preparation and meeting$7,500.002Funding AssistancePE5140[ $140.00Total for Task 2$5,600.00$5,600.00Assistance with application and requirements to gain SRF fundingAssumes approx. 4 weeks to gatherinformation and meet requirements3Construction AdministrationPE5360 [ $140.00Total for Task 3$50,400.00$50,400.00Day to day project management during construction, weekly meetings, correspondence with contractor and City staff,weekly updates.18 weeks at estimated 20 hours/week4Construction InspectionPE5El 454| $140.00630$95.00$7,560.00$59,850.00Total for Task 4| $67,410.00Full time inspection by El 4 staff and 3 hours/week PE 5 inspection (site visits). Daily inspection report generation anddistribution, as-built recording. Does not include services beyond 120 calendar day contract time.PE 5 at 3 hours/week. El 4 at 35 hours/weekfor 18 weeksConstruction TestingProject ManagementPE5El 42460$140.00$95.00$3,360.00Testing management, review ofsubmittals and reportsApprox 0.5 hr/day for reports$5,700.00Compaction TestingEl 4160| $95.00| $15,200.00|Trench/manholes, jack and bore pits, road subgrade, sub-base, base course, in-place asphalt, proctor deliveryApprox 2 hr/dayConcrete TestingEl 49$95.00$855.00|Curb and Gutter testing-up to 3 pours3 hours per pourQuality ControlPE520$140.00$2,800.00|Quality Control for testing services5Equipment and ExpensesConcrete Testing Equipment (per day)Asphalt Mix Verification (each)3 days |$40/day2$750/ea$120.00$1,500.00Cylinder Breaks (each)Proctors(each)Nuclear Gauge Equipment (per day)121075 days [$60/day$22/ea$230/ea$264.00$2,300.00Total for Task 5$4,500.00$36,599.00Construction Staking6Survey ControlLSI 3Tech28| $90.0062$75.00$720.00Complete a level loop across the project length, establish bench marks, control diagram, prepare stake out points$4,650.00TechlPLS4258$70.00$115.00$1,750.00$920.00Field StakingTech2Techl6666$75.00$70.00$4,950.00$4,620.00Jack and bore, all-weather access, manhole and sewer main staking per construction plans. No re-staking of any pointsis included in the scope.Post Processing/DeliverablesTech2PLS444$75.00$115.00$300.00$460.00Total for Task 6| $18,370.00Production of as-staked exhibits and quality controlTotal for all Tasks $185,879.0061