HomeMy WebLinkAbout19- Professional Services Agreement - DOWL, LLC - Stormwater On-Call Services so
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PROFESSIONAL SERVICES AGREE�M,,EENN,T'�
THIS AGREEMENT is made and entered into this �(� of Sty, `01�y and between the CITY OF
BOZEMAN, MONTANA, a self-governing municipal corporation organized and existing under its Charter and the
laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana,with a mailing address of PO Box 1230,
Bozeman, MT 59771, hereinafter referred to as "City," and, DOWL, LLC, 2090 Stadium Dr., Bozeman, MT 59715,
hereinafter referred to as "Contractor."
In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency
whereof being hereby acknowledged,the parties hereto agree as follows:
1. Purpose: City agrees to enter into this agreement with Contractor to provide a range of
professional and technical services, including but not necessarily limited to engineering design, preparation of
construction documents, project bidding, and construction administration services for various stormwater
improvement projects, as requested by the City through issuance of individual, consecutively numbered Task
Orders on an as needed and requested basis.
2. Term/Effective Date: This Agreement is effective upon the date of its execution and shall
terminate three years from the date made and entered.
3. Scope of Services: Contractor will perform the work and provide the services in accordance with
the specific services and corresponding schedule as mutually agreed upon by City and Contractor and included in
each individual Task Order executed under the authority of this Agreement. Task Orders shall be in a format similar
to EXHIBIT A, attached and made part of this Agreement. For conflicts between this Agreement and the Scope of
Services, unless specifically provided otherwise,the Agreement governs.
4. Payment: The terms of compensation to Contractor shall be agreed upon and included in each Task
Order. City agrees to pay Contractor the amount specified in the individual Task Orders. Any alteration or
deviation from the described services that involves additional costs above the Agreement amount will be
performed by Contractor after written request by the City, and will become an additional charge over and above
the amount listed in the Scope of Services. The City must agree in writing upon any additional charges.
5. Contractor's Representations:To induce City to enter into this Agreement,Contractor makes the
following representations:
a. Contractor has familiarized itself with the nature and extent of this Agreement, the Scope of
Services, and with all local conditions and federal, state and local laws, ordinances, rules, and regulations that in
any manner may affect cost, progress or performance of the Scope of Services.
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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 the degree of care and skill ordinarily exercised under the same conditions by professionals
practicing in the same field at the same time in the same or similar locality;that it has the power to enter into and
perform this Agreement and grant the rights granted in it; and that its performance of this Agreement shall not
infringe upon or violate the rights of any third party, whether rights of copyright, trademark, privacy, publicity,
libel, slander or any other rights of any nature whatsoever, or violate any federal, state and municipal laws. The
City will not determine or exercise control as to general procedures or formats necessary to have these services
meet this warranty.
6. Independent Contractor Status/Labor Relations: The parties agree that Contractor is an
independent contractor for purposes of this Agreement and is not to be considered an employee of the City for
any purpose. Contractor is not subject to the terms and provisions of the City's personnel policies handbook and
may not be considered a City employee for workers' compensation or any other purpose. Contractor is not
authorized to represent the City or otherwise bind the City in any dealings between Contractor and any third
parties.
Contractor shall comply with the applicable requirements of the Workers' Compensation Act, Title 39,
Chapter 71, MCA, and the Occupational Disease Act of Montana, Title 39, Chapter 71, MCA. Contractor shall
maintain workers' compensation coverage for all members and employees of Contractor's business, except for
those members who are exempted by law.
Contractor shall furnish the City with copies showing one of the following: (1) a binder for workers'
compensation coverage by an insurer licensed and authorized to provide workers'compensation insurance in the
State of Montana; or (2) proof of exemption from workers' compensation granted by law for independent
contractors.
Contractor shall post a legible statement of all wages and fringe benefits to be paid to the Contractor's
employees and the frequency of such payments (i.e., hourly wage employees shall be paid weekly). Such posting
shall be made in a prominent and accessible location at the Contractor's normal place of business and shall be
made no later than the first day of services provided under this Agreement. Such posting shall be removed only
upon expiration or termination of this Agreement.
In performing the services under this Agreement, Contractor shall give preference to the employment of
bona fide residents of Montana, as required by §18-2-403, MCA, and as such, term is defined by §18-2-401(1),
MCA. When making assignments of work, Contractor shall use workers both skilled in their trade and specialized
in their field of work for all work to which they are assigned.
Pursuant to §§18-2-403 and 18-2-422, MCA, Contractor shall pay wages, fringe benefits, and expenses
including travel allowances as set forth in the current Montana Prevailing Wage Rate for Non Construction Services
in effective and applicable to Gallatin County, Montana which schedule is incorporated herein. Contractor shall
pay all hourly wage employees on a weekly basis. Violation of the requirements set forth in the above State of
Montana schedule of prevailing wage rates may subject the Contractor to the penalties set forth in §18-2-407,
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MCA. Contractor shall maintain payroll records during the term of this Agreement and for a period of three (3)
years following termination of this Agreement.
The Contractor shall ensure that any person, firm or entity performing any portion of the services under
this Agreement for which the contractor,subcontractor or employer is responsible,is paid the applicable standard
prevailing rate of wages.
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 and for any
claims regarding underpaid prevailing wages.
7. Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the
fullest extent permitted by law, Contractor agrees to 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)to the extent caused by the
negligent, reckless, or intentional misconduct of the Contractor; or 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.
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
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Contractor was obligated to defend the claim(s) or was obligated to indemnify the indemnitee for a claim(s) or
any portion(s)thereof.
In the event of an action filed against City resulting from the City's performance under this Agreement,
the City may elect to represent itself and incur all costs and expenses of suit.
Contractor also waives any and all claims and recourse against the City or its officers,agents or employees,
including the right of contribution for loss or damage to person or property arising from,growing out of,or in any
way connected with or incident to the performance of this Agreement except "responsibility for his own fraud,
for willful injury to the person or property of another, or for violation of law,whether willful or negligent" as per
28-2-702, MCA.
These obligations shall survive termination of this Agreement and the services performed hereunder.
In addition to and independent from the above,Contractor shall at Contractor's expense secure insurance
coverage through an insurance company or companies duly licensed and authorized to conduct insurance business
in Montana which insures the liabilities and obligations specifically assumed by the Contractor in this Section.The
insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Contractor in
subsection (a) of this Section.
The insurance shall cover and apply to all claims,demands,suits,damages,losses,and expenses that may
be asserted or claimed against, recovered from, or suffered by the City without limit and without regard to the
cause therefore and which is acceptable to the City and Contractor shall furnish to the City an accompanying
certificate of insurance and accompanying endorsements in amounts not less than as follows:
• Workers'Compensation—statutory;
• Employers' Liability-$1,000,000 per occurrence;$2,000,000 annual aggregate;
• Commercial General Liability-$1,000,000 per occurrence; $2,000,000 annual aggregate;
• Automobile Liability-$1,000,000 property damage/bodily injury per accident; 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 thirty(30)day notice of cancellation or non-renewal.The City
must approve all insurance coverage and endorsements prior to the Contractor commencing work. Contractor
shall notify City within two(2)business days of Contractor's receipt of notice that any required insurance coverage
will be terminated or Contractor's decision to terminate any required insurance coverage for any reason.
The City must approve all insurance coverage and endorsements prior to the Contractor commencing
work.
8. Termination for Contractor's Fault:
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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 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.
b. In the event of a termination pursuant to this Section 8, Contractor shall be entitled to
payment only for those services Contractor actually rendered.
C. 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.
d. In the event of termination under this Section 8,Contractor shall,under no circumstances,
be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost
productivity,field office overhead,general conditions costs,or lost profits damages of any nature arising,
or claimed to have arisen, as a result of the termination.
9. Termination for City's Convenience:
a. Should conditions arise which, in the sole opinion and discretion of the City, make it
advisable to the City to cease performance under this Agreement City may terminate this Agreement by
written notice to Contractor ("Notice of Termination for City's Convenience"). The termination shall be
effective in the manner specified in the Notice of Termination for City's Convenience and shall be without
prejudice to any claims that the City may otherwise have against Contractor.
b. Upon receipt of the Notice of Termination for City's Convenience, unless otherwise
directed in the Notice, the Contractor shall immediately cease performance under this Agreement and
make every reasonable effort to refrain from continuing work, incurring additional expenses or costs
under this Agreement and shall immediately cancel all existing orders or contracts upon terms satisfactory
to the City. Contractor shall do only such work as may be necessary to preserve, protect, and maintain
work already completed or immediately in progress.
C. In the event of a termination pursuant to this Section 9,Contractor is entitled to payment
only for those services Contractor actually rendered on or before the receipt of the Notice of Termination
for City's Convenience.
d. The compensation described in Section 9(c) is the sole compensation due to Contractor
for its performance of this Agreement. Contractor shall, under no circumstances, be entitled to claim or
recover consequential,special,punitive,lost business opportunity,lost productivity,field office overhead,
general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a
result of the termination.
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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 Kyle Mehrens, Stormwater Program Coordinator 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 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 Wad Irion, Water Practice Lead or such other individual as Contractor shall designate
in writing. Whenever direction to or communication with Contractor is required by this Agreement,such
direction or communication shall be directed to Contractor's Representative; provided, however,that in
exigent circumstances when Contractor's Representative is not available, City may direct its direction or
communication to other designated Contractor personnel or agents.
12. Permits: Contractor shall provide all notices, comply with all applicable laws, ordinances, rules,
and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and
inspections from applicable governmental authorities, and pay all fees and charges in connection therewith.
13 Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws,
regulations, and municipal ordinances including, but not limited to, all workers' compensation laws, all
environmental laws including, but not limited to, the generation and disposal of hazardous waste, the
Occupational Safety and Health Act (OSHA),the safety rules, codes, and provisions of the Montana Safety Act in
Title 50, Chapter 71, MCA, all applicable City, County,and State building and electrical codes,the Americans with
Disabilities Act, and all non-discrimination, affirmative action, and utilization of minority and small business
statutes and regulations.
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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 subcontractors providing services
under this agreement.
15. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor shall not permit
or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent
engaged in services to the City under this Agreement while on City property or in the performance of any activities
under this Agreement. Contractor acknowledges it is aware of and shall comply with its responsibilities and
obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol
misuse prevention plans and related testing. City shall have the right to request proof of such compliance and
Contractor shall be obligated to furnish such proof.
The Contractor shall be responsible for instructing and training the Contractor's employees and agents in
proper and specified work methods and procedures. The Contractor shall provide continuous inspection and
supervision of the work performed. 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.
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19. Attorneys Fees and Costs: In the event it becomes necessary for either Party to retain an attorney
to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the
prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including fees,
salary, and costs of in-house counsel to include City Attorney.
20. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate
employee withholdings.
21. Dispute Resolution:
a. Any claim, controversy, or dispute between the parties, their agents, employees, or
representatives shall be resolved first by negotiation between senior-level personnel from each party duly
authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may
invite an independent, disinterested mediator to assist in the negotiated settlement discussions.
b. If the parties are unable to resolve the dispute within thirty(30) days from the date the
dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in
compliance with the Applicable Law provisions of this Agreement.
22. Survival: Contractor's indemnification shall survive the termination or expiration of this
Agreement for the maximum period allowed under applicable law.
23. Headings: The headings used in this Agreement are for convenience only and are not be
construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they
refer.
24. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance
thereof shall continue in effect.
25. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of
the State of Montana.
26. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal
representatives, successors, and assigns of the parties.
27. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the parties, does not
constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party.
28. Counterparts: This Agreement may be executed in counterparts,which together constitute one
instrument.
29. Integration: This Agreement and all Exhibits attached hereto constitute the entire agreement of
the parties. Covenants or representations not contained therein or made a part thereof by reference, are not
binding upon the parties. There are no understandings between the parties other than as set forth in this
Agreement. All communications, either verbal or written, made prior to the date of this Agreement are hereby
abrogated and withdrawn unless specifically made a part of this Agreement by reference.
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30. Extensions: This Agreement may, upon mutual agreement, be extended by written
agreement of the Parties. In no case, however, may this Agreement run longer than four years.
**** END OF AGREEMENT EXCEPT FOR SIGNATURES****
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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 DOWL, LLC
CITY CONTRACTOR
By: Andrea Surratt By: [nJ e- In an
Title: City ana er Title:
Signature. Signature:
APPROVED AS TO FORM:
By: Greg Sullivan
Title: City Attorney
Signature:
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EXHIBIT A TO PROFESSIONAL SERVICES AGREEMENT
TASK ORDER NUMBER
Issued under the authority of Professional Services Agreement between the City of Bozeman and
[INSERT CONTRACTOR NAME] for:A range of professional and technical services, including but not necessarily
limited to engineering design, preparation of construction documents, project bidding, and construction
administration services for various stormwater improvement projects, as requested by the City through issuance
of individual, consecutively numbered Task Orders on an as needed and requested basis.
This Task Order is dated 20_between City of Bozeman (City) and DOWL,
LLC (Contractor).
The following representatives have been designated for the work performed under this Task Order:
City:
Contractor:
SCOPE OF WORK: (attach additional sheet(s) as required)
(insert scope or reference EXHIBIT A—Scope of Services)
COMPENSATION: (revise the following as necessary)
Contractor shall be reimbursed on a (Time& Materials, Lump Sum, Percent of Completion, etc.) basis.
Contractor shall invoice no more often than monthly for services provided in the prior month.
The provisions of the Professional Services Master Task Order Agreement and any Special Terms and Conditions
and/or Exhibits or Attachments to this Task Order shall govern the Work.
**** END OF AGREEMENT EXCEPT FOR SIGNATURES ****
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IN WITNESS WHEREOF,the parties authorized to commit resources of the companies have executed this Task Order:
CITY OF BOZEMAN, MONTANA DOWL, LLC
CITY CONTRACTOR
By: By:
Title: Title:
Signature: Signature:
APPROVED AS TO FORM:
By:
Title:
Signature:
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