HomeMy WebLinkAbout19- Professional Services Agreement - Metcalf Archaeological Consultants - Historic Architecture Inventory Project �<
PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this 2:2N4 day of 2019
(the "Effective Date") by and between the CITY OF BOZEMAN, MONTANA, 8 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, Metcalf Archaeological Consultants,
Inc, with an address of 11495 W. 8th Suite 104, Lakewood, Colorado 80215.
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 Exhibit A and by this reference
made a part hereof.
2. Term/Effective Date: This Agreement is effective upon the date first written above and
will terminate one year after the Effective Date.
3. Scope of Work: Contractor will perform the work and provide the services in accordance
with the requirements of the Scope of Services, Exhibit A (the "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 amounts 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.
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Contractor will invoice the City monthly for Services completed, but not to exceed
$70,000 prior to June 30, 2020. Contractor understands and agrees that City's payments for
Services rendered during the term of any extensions to this Agreement is contingent on the City
Commission's appropriation of sufficient funds in the applicable Fiscal Year budget for the
Services. Should funds not be appropriated, this Agreement will terminate effective
immediately, and such termination will be considered a Termination for City's Convenience
pursuant to Section 9 herein.
5. Contractor's Representations: To induce City to enter into this Agreement, Contractor
makes the following representations:
a. Contractor has familiarized itself with the nature and extent of this Agreement,
the Scope of Services, and with all local conditions and federal, state and local laws,
ordinances, rules, and regulations that in any manner may affect cost, progress or performance
of the Scope of Services.
b. Contractor represents and warrants to City that it has the experience and ability
to perform the services required by this Agreement; that it will perform said services in a
professional, competent and timely manner and with diligence and skill; that it has the power to
enter into and perform this Agreement and grant the rights granted in it; and that its
performance of this Agreement shall not infringe upon or violate the rights of any third party,
whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any
nature whatsoever, or violate any federal, state 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.
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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.
In the event that, during the term of this Agreement, any labor problems or disputes of any type
arise or materialize which in turn cause any services to cease for any period of time, Contractor
specifically agrees to take immediate steps, at its own expense and without expectation of
reimbursement from City, to alleviate or resolve all such labor problems or disputes. The specific
steps Contractor shall take 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 services to continue at no additional cost to City.
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.
7. Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to
the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and hold
harmless the City, its agents, representatives, employees, and officers (collectively referred to
for purposes of this Section as the City) from and against any and all claims, demands, actions,
fees and costs (including attorney's fees and the costs and fees of and expert witness and
consultants), losses, expenses, liabilities (including liability where activity is inherently or
intrinsically dangerous) or damages of whatever kind or nature connected therewith and without
limit and without regard to the cause or causes thereof or the negligence of any party or parties
that may be asserted against, recovered from or suffered by the City occasioned by, growing or
arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional
misconduct of the Contractor; (ii) any negligent, reckless, or intentional misconduct of any of the
Contractor's agents.
For the professional services rendered, to the fullest extent permitted by law, Contractor agrees
to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and
expenses, including reasonable defense attorney fees, to the extent caused by the negligence
or willful misconduct of the Contractor or Contractor's agents or employees.
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FY 2020
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Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations
of indemnity that would otherwise exist. The indemnification obligations of this Section must not
be construed to negate, abridge, or reduce any common-law or statutory rights of the
indemnitee(s) which would otherwise exist as to such indemnitee(s).
Contractor's indemnity under this Section shall be without regard to and without any right to
contribution from any insurance maintained by City.
Should any indemnitee described herein be required to bring an action against the Contractor to
assert its right to defense or indemnification under this Agreement or under the Contractor's
applicable insurance policies required below the indemnitee shall be entitled to recover
reasonable costs and attorney fees incurred in asserting its right to indemnification or defense
but only if a court of competent jurisdiction determines the Contractor was obligated to defend
the claim(s) or was obligated to indemnify the indemnitee for a claim(s) or any portion(s) thereof.
In the event of an action filed against City resulting from the City's performance under this
Agreement, the City may elect to represent itself and incur all costs and expenses of suit.
Contractor also waives any and all claims and recourse against the City or its officers, agents or
employees, including the right of contribution for loss or damage to person or property arising
from, growing out of, or in any way connected with or incident to the performance of this
Agreement except"responsibility for his own fraud, for willful injury to the person or property of
another, or for violation of law, whether willful or negligent" as per 28-2-702, MCA.
These obligations shall survive termination of this Agreement and the services performed
hereunder.
In addition to and independent from the above, Contractor shall at Contractor's expense secure
insurance coverage through an insurance company or companies duly licensed and authorized
to conduct insurance business in Montana which insures the liabilities and obligations
specifically assumed by the Contractor in this Section. The insurance coverage shall not contain
any exclusion for liabilities specifically assumed by the Contractor in subsection (a) of this
Section.
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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. 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.
& Termination for Contractor's Fault:
If Contractor refuses or fails to timely do the work, or any part thereof, or fails to perform any of
its obligations under this Agreement, or otherwise breaches any terms or conditions of this
Agreement, the City may, by written notice, terminate this Agreement and the Contractor's right
to proceed with all or any part of the work ("Termination Notice Due to Contractor's Fault"). The
City may then take over the work and complete it, either with its own resources or by re-letting
the contract to any other third party.
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FY 2020
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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
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entitled to claim or recover consequential, special, punitive, lost business opportunity, lost
productivity, field office overhead, general conditions costs, or lost profits damages of any
nature arising, or claimed to have arisen, as a result of the termination.
10. Limitation on Contractor's Damages; Time for Asserting Claim:
a. In the event of a claim for damages by Contractor under this Agreement,
Contractor's damages shall be limited to contract damages and Contractor hereby expressly
waives any right to claim or recover consequential, special, punitive, lost business opportunity,
lost productivity, field office overhead, general conditions costs, or lost profits damages of any
nature or kind.
b. In the event Contractor wants to assert a claim for damages of any kind or
nature, Contractor shall provide City with written notice of its claim, the facts and circumstances
surrounding and giving rise to the claim, and the total amount of damages sought by the claim,
within thirty (30) days of the facts and circumstances giving rise to the claim. In the event
Contractor fails to provide such notice, Contractor shall waive all rights to assert such claim.
11. Representatives:
a. City's Representative: The City's Representative for the purpose of this
Agreement shall be Loren Olsen 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 Loren Olsen 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 Jennifer B. Lee 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,
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FY 2020
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however, that in exigent circumstances when Contractor's Representative is not available, City
may direct its direction or communication to other designated Contractor personnel or agents.
12. Permits: Contractor shall provide all notices, comply with all applicable laws,
ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of
Bozeman business license, and inspections from applicable governmental authorities, and pay
all fees and charges in connection therewith.
13 Laws and Regulations: Contractor shall comply fully with all applicable state and federal
laws, regulations, and municipal ordinances including, but not limited to, all workers'
compensation laws, all environmental laws including, but not limited to, the generation and
disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules,
codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable
City, County, and State building and electrical codes, the Americans with Disabilities Act, and all
non-discrimination, affirmative action, and utilization of minority and small business statutes and
regulations.
14. Nondiscrimination: The Contractor agrees that all hiring by Contractor of persons
performing this Agreement shall be on the basis of merit and qualifications. The Contractor will
have a policy to provide equal employment opportunity in accordance with all applicable state
and federal anti-discrimination laws, regulations, and contracts. The Contractor will not refuse
employment to a person, bar a person from employment, or discriminate against a person in
compensation or in a term, condition, or privilege of employment because of race, color,
religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived
sexual orientation, gender identity, physical or mental disability, except when the reasonable
demands of the position require an age, physical or mental disability, marital status or sex
distinction. The Contractor shall be subject to and comply with Title VI of the Civil Rights Act of
1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder.
The Contractor shall require these nondiscrimination terms of its sub-Contractors providing
services under this agreement.
15. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor shall
not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs,
by any employee or agent engaged in services to the City under this Agreement while on City
property or in the performance of any activities under this Agreement. Contractor acknowledges
it is aware of and shall comply with its responsibilities and obligations under the U.S.
Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse
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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. 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.
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20. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all
appropriate employee withholdings.
21. ._Dispute Resolution:
a. Any claim, controversy, or dispute between the parties, their agents, employees,
or representatives shall be resolved first by negotiation between senior-level personnel
from each party duly authorized to execute settlement agreements. Upon mutual
agreement of the parties, the parties may invite an independent, disinterested mediator
to assist in the negotiated settlement discussions.
b. If the parties are unable to resolve the dispute within thirty (30) days from the
date the dispute was first raised, then such dispute may only be resolved in a court of
competent jurisdiction in compliance with the Applicable Law provisions of this
Agreement.
22. Survival: Contractor's indemnification shall survive the termination or expiration of this
Agreement for the maximum period allowed under applicable law.
23. Headings: The headings used in this Agreement are for convenience only and are not
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.
2& Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs,
legal representatives, successors, and assigns of the parties.
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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 up to four (4)
additional one-year terms by written agreement of the Parties.
31. Section 3 of the Housing and Urban Development Act of 1968: The contractor will ensure
that to the greatest extent feasible opportunities for training and employment arising in connection
with this CDBG-assisted project will be extended to lower income project area residents. Further,
the contractor will, to the greatest extent feasible, utilize business concerns located in or
substantially owned by residents of the project area, in the award of contracts and purchase of
services and supplies.
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IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and
year first above written.
CITY OF BOZEMAN, MONTANA Metcalf Archaeology
By B
Andrea Surratt, City Manag r Je fifer B. Lee, Project Manager
APPROVED AS TO FORM:
By
Bozeman City Attorney
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FY 2020
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Exhibit A—SCOPE OF SERVICES
Project Overview
The Architecture Inventory Project purpose is to survey and collect architectural, historic and
neighborhood character data in order to continue supporting the City of Bozeman's Historic
Preservation and Neighborhood Conservation Overlay District programs. This project seeks to
continue the efforts of previous city architectural inventory surveys dating back to the early
1980s.
Information generated from this architectural inventory survey will enable the City of Bozeman
Historic Preservation staff make informed land use decisions in accordance with the City's
Strategic Plan, Historic Preservation and Neighborhood Conservation Overlay District
ordinances.
The consultant shall employ at a minimum the services of an Architectural Historian qualified in
accordance with the National Park Service Professional Qualification Standards as well as any
and all other specialty disciplines necessary to complete the project as described.
Architectural Inventory Services not to exceed $70,000 for Fiscal Year 2020. Architectural
Inventory Survey services will be as requested on an individual project by project basis as
requested by the City of Bozeman.
Initiation of Work
In implementing this "multi-order" contract the City of Bozeman will request Metcalf
Archaeological Consultants, Inc. (Metcalf) to perform an architectural inventory survey on a
project by project basis. The consultant will be provided with a detailed list of particular
properties that will undergo an architectural survey, consultant will be provided with property list
at time of project initiation.
The consultant will be expected to provide the City of Bozeman with the property owner contact
information prior to initiating survey work, after property owners have been notified by the City of
Bozeman staff, staff will give the approval to perform architectural inventory survey services of
listed properties.
Architectural Inventory Survey Services
The City of Bozeman's Architecture Inventory project requires 3 intensities of architecture
survey work to be completed by a consultant. These intensities are intended to inform a variety
of planning initiatives relating to the City's well established Neighborhood Conservation Overlay
District and Historic Preservation program. Both of these programs utilize a mixture of historic
eligibility data and neighborhood defining characteristics that inform the in-house plan review
within the districts. It is staff's goal to make informed decisions regarding the long term
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application of these two programs and have updated data for plan review, as well as inform long
term planning decisions.
The completion of all 3 levels of survey are to be documented with the Montana Historic
Property Record form, available from the Montana State Historic Preservation Office, and
remain in an editable format to allow updates and future intensities of survey to occur. All survey
intensities will have a base of information that will be consistent such as Address, Legal
Locations, photographs and maps. Additionally, the consultant will provide all property owner
contact information for all properties surveyed regardless of survey level.
Level I — Reconnaissance & Neighborhood Character Elements
The Level I survey is intended to record and review architectural character elements and
propose a "Field" recommendation regarding the potential for eligibility. The Field
recommendation for potential eligibility is to be written under the Architectural Description
section of the MHPR form. Field recommendation can result in an "unevaluated" determination
to warrant further investigation.
Level I survey will contain in a detailed description of elements that relate to the overall general
development patterns of the property. These elements should include but are not limited to:
structure stories, materials, fenestration patterns, roof types, architectural style and form,
porches, chimney, landscaping patterns etc.
Level 11 — Full Level Survey
Level II is a more intensive survey that will require historic research and a more detailed
architectural description. This survey level will result in a formal determination of"Eligible"vs.
"Non-Eligible"that will be recorded on the Montana History Property Record form.
Level III —Additional Survey Work
The Level III survey category will be utilized for a variety of architectural survey services,
including but not limited to architectural documentation, National Register Nomination writing or
in-depth architectural survey work. All Level III services, if needed, will be determined and
costed at a later date, in agreement, in writing with consultant.
Suggested Architectural Survey- Survey Level Detail:
I II III
1. Property Address Information X X X
2. Historic Address (if applicable) / Property Owner Information X X X
3. Legal Location X X X
4. UTM Reference X X X
5. County X X X
& Historic Name & Use X X X
7. Contact Information X X X
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8. Architectural Description and Character Elements: X X X
9. History of Property X X
10. Information Sources/ Bibliography X X
11. Eligibility X X
12. Statement of Significance X X
13. Integrity Description X X
14. Photos & Maps X X X
D. Schedule of Deliverables. The consultant will complete the services required under this Schedule
of Deliverables and submit the required forms and related documentation in accordance with the
following schedule:
1. Project Schedule, Within 5 days after the notice to proceed and a staff provided list of
properties to be surveyed, submit a copy of the project schedule for review by city staff, this
can be accomplished via email.
2. Preliminary Submission. Within 30 days after notice to proceed, submit a sample of completed
survey forms and related documentation for approval by the staff. The purpose of this
preliminary submission is to identify any potential problems and allow time for
correction/clarification of the work to be completed.
3. Final Submission. Within a reasonable time frame after the project concludes work submit to
staff completed Montana Historic Property Record forms in a digital and editable electronic and
hard copy for review. Project will not be complete until staff has evaluated submitted MHPR for
completeness and accuracy.
Length of Services
The scheduling for completion of the architectural survey work will proceed on a project by
project basis. All projects will be complete in a timely and efficient manner. It is to be understood
that the consultants will respond to individual project requests as indicated in this scope.
The duration of services may be extended by a "Contract Extension" if mutually agreed to in
writing. This contract may be renewed on a yearly basis depending on available funds and need
of contracted work, whichever comes first.
Budget
This professional Services Agreement is an indefinite quantity agreement whereby the
consultants agrees to furnish services during a prescribed period of times. The specific period of
times completes such a contract. The City of Bozeman has established an estimated budgetary
ceiling of$70,000 for this agreement.
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