HomeMy WebLinkAbout10-28-19 City Commission Packet Materials - C12. PSA with Groundprint, LLC for Development Review Services1
REPORT TO: Mayor and City Commission
FROM: Chris Saunders, Community Development Manager Martin Matsen, Director of Community Development
SUBJECT: Approval of professional services agreement with Groundprint LLC for
development review services and authorization for the City Manager to sign the
agreement on behalf of the City. MEETING DATE: October 28, 2019
AGENDA ITEM TYPE: Consent
RECOMMENDATION: That the City Commission approve the professional services agreement with
Groundprint LLC and authorize the City Manager to sign the agreement on behalf of the City.
BACKGROUND: The pace of development review has exceeded the ability of internal staff to process
all applications in a timely manner. To resolve this matter, a contract with Groundprint LLC will provide some additional capacity to review specific projects and assist with project tracking for the upcoming
text amendment system.
As applications continue to arrive at a rapid pace, Staff wishes to extend the duration and amount of the
contract so that the additional application review capability is retained. The scope of services is attached.
UNRESOLVED ISSUES: None determined at this time.
ALTERNATIVES: As determined by the Commission.
FISCAL EFFECTS: Contract cost will be charged on an hourly basis within the amount funded in the
2020 fiscal year budget for professional services.
Attachment: Professional Services Agreement
Report compiled on October 14, 2019
Commission Memorandum
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1
PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this _____ day of ____________, 2019, by and between the CITY OF BOZEMAN, MONTANA, a self governing municipal corporation
organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse
Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771,
hereinafter referred to as “City,” and, Groundprint, LLC, 1262 Stoneridge Drive, Bozeman, MT 59718 hereinafter referred to as “Contractor.”
In consideration of the mutual covenants and agreements herein contained, the receipt and
sufficiency whereof being hereby acknowledged, the parties hereto agree as follows:
1. Purpose: City agrees to enter this Agreement with Contractor to perform for City
services described in the Scope of Services attached hereto as Attachment “A” and by this
reference made a part hereof.
2. Term/Effective Date: This Agreement is effective upon the date of its execution and will terminate on the 31st day of December, 2020.
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. For conflicts between this Agreement
and the Scope of Services, unless specifically provided otherwise, the Agreement governs.
4. Payment: City agrees to pay Contractor the amount specified in the Scope of Services.
Any alteration or deviation from the described services that involves additional costs above the
Agreement amount will be performed by Contractor after written request by the City, and will
become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing upon any additional charges.
5. Contractor’s Representations: To induce City to enter into this Agreement, Contractor
makes the following representations:
a. Contractor has familiarized itself with the nature and extent of this Agreement, the Scope of Services, and with all local conditions and federal, state and local laws, ordinances,
rules, and regulations that in any manner may affect cost, progress or performance of the Scope
of Services.
b. Contractor represents and warrants to City that it has the experience and ability to
perform the services required by this Agreement; that it will perform said services in a 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
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of this Agreement shall not infringe upon or violate the rights of any third party, whether rights
of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature
whatsoever, or violate any federal, state and municipal laws. The City will not determine or
exercise control as to general procedures or formats necessary to have these services meet this warranty.
6. Independent Contractor Status/Labor Relations: The parties agree that Contractor is an
independent contractor for purposes of this Agreement and is not to be considered an employee
of the City for any purpose. Contractor is not subject to the terms and provisions of the City’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. Contractor is not authorized to represent the City or
otherwise bind the City in any dealings between Contractor and any third parties.
Contractor shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39, Chapter 71, MCA, and the Occupational Disease Act of Montana, Title 39, Chapter 71,
MCA. Contractor shall maintain workers’ compensation coverage for all members and
employees of Contractor’s business, except for those members who are exempted by law.
Contractor shall furnish the City with copies showing one of the following: (1) a binder for workers’ compensation coverage by an insurer licensed and authorized to provide workers’
compensation insurance in the State of Montana; or (2) proof of exemption from workers’
compensation granted by law for independent contractors.
Contractor shall indemnify, defend, and hold the City harmless from any and all claims, demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in
connection with any labor problems or disputes or any delays or stoppages of work associated
with such problems or disputes and for any claims regarding underpaid prevailing wages.
7. Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and hold
harmless the City, its agents, representatives, employees, and officers (collectively referred to for
purposes of this Section as the City) from and against any and all claims, demands, actions, fees
and costs (including attorney’s fees and the costs and fees of and expert witness and consultants),
losses, expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and
without regard to the 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.
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For the professional services rendered, to the fullest extent permitted by law, Contractor agrees
to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and
expenses, including reasonable defense attorney fees, to the extent caused by the negligence or
willful misconduct of the Contractor or Contractor’s agents or employees.
Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations
of indemnity that would otherwise exist. The indemnification obligations of this Section must not
be construed to negate, abridge, or reduce any common-law or statutory rights of the
indemnitee(s) which would otherwise exist as to such indemnitee(s).
Contractor’s indemnity under this Section shall be without regard to and without any right to
contribution from any insurance maintained by City.
Should any indemnitee described herein be required to bring an action against the Contractor to assert its right to defense or indemnification under this Agreement or under the Contractor’s
applicable insurance policies required below the indemnitee shall be entitled to recover
reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but
only if a court of competent jurisdiction determines the Contractor was obligated to defend the
claim(s) or was obligated to indemnify the indemnitee for a claim(s) or any portion(s) thereof.
In the event of an action filed against City resulting from the City’s performance under this
Agreement, the City may elect to represent itself and incur all costs and expenses of suit.
Contractor also waives any and all claims and recourse against the City or its officers, agents or employees, including the right of contribution for loss or damage to person or property arising
from, growing out of, or in any way connected with or incident to the performance of this
Agreement except “responsibility for his own fraud, for willful injury to the person or property
of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA.
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
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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;
and
Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate.
The above amounts shall be exclusive of defense costs. The City of Bozeman, its officers,
agents, and employees, shall be endorsed as an additional or named insured on a primary non-
contributory basis on both the Commercial General and Automobile Liability policies. The
insurance and required endorsements must be in a form suitable to City and shall include no less
than a sixty (60) day notice of cancellation or non-renewal. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. Contractor shall notify
City within two (2) business days of Contractor’s receipt of notice that any required insurance
coverage will be terminated or Contractor’s decision to terminate any required insurance
coverage for any reason.
The City must approve all insurance coverage and endorsements prior to the Contractor
commencing work.
8. Termination for Contractor’s Fault:
If Contractor refuses or fails to timely do the work, or any part thereof, or fails to perform any of its obligations under this Agreement, or otherwise breaches any terms or conditions of this
Agreement, the City may, by written notice, terminate this Agreement and the Contractor’s right
to proceed with all or any part of the work (“Termination Notice Due to Contractor’s Fault”).
The City may then take over the work and complete it, either with its own resources or by re-letting the contract to any other third party.
In the event of a termination pursuant to this Section 8, Contractor shall be entitled to payment
only for those services Contractor actually rendered.
Any termination provided for by this Section 8 shall be in addition to any other remedies to which the City may be entitled under the law or at equity.
In the event of termination under this Section 8, Contractor shall, under no circumstances, be
entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination.
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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.
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.
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11. Representatives:
a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be Chris Saunders 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 Chris Saunders 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 Dave DeGrandpre 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.
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,
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religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual
orientation, gender identity, physical or mental disability, except when the reasonable demands
of the position require an age, physical or mental disability, marital status or sex distinction. The
Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. The Contractor
shall require these nondiscrimination terms of its sub-Contractors providing services under this
agreement.
15. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs,
by any employee or agent engaged in services to the City under this Agreement while on City
property or in the performance of any activities under this Agreement. Contractor acknowledges
it is aware of and shall comply with its responsibilities and obligations under the U.S.
Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such
compliance and Contractor shall be obligated to furnish such proof.
The Contractor shall be responsible for instructing and training the Contractor's employees and
agents in proper and specified work methods and procedures. The Contractor shall provide continuous inspection and supervision of the work performed. 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. Attorney’s Fees and Costs: That in the event it becomes necessary for either Party of this
Agreement to retain an attorney to enforce any of the terms or conditions of this Agreement or to
give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel to include City Attorney.
20. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all
appropriate employee withholdings.
21. Dispute Resolution:
a. Any claim, controversy, or dispute between the parties, their agents, employees,
or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual
agreement of the parties, the parties may invite an independent, disinterested mediator to
assist in the negotiated settlement discussions.
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.
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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 a period of
one year by written agreement of the Parties. In no case, however, may this Agreement run longer
than December 31, 2020.
[END OF AGREEMENT EXCEPT SIGNATURES]
IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and
year first above written.
CITY OF BOZEMAN, MONTANA GROUNDPRINT, LLC.
By________________________________ By __________________________________
Andrea Surrat, City Manager Susan Riggs, Principal Groundprint, LLC
APPROVED AS TO FORM:
By_______________________________
Greg Sullivan, Bozeman City Attorney
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ATTACHMENT A
To: Marty Matsen, Director of Community Development
From: Susan Riggs
Date: April 12, 2019
RE: Scope of Services
Scope of Services
Groundprint, LLC will assist Planning Staff with development review applications. The Planning
Director will coordinate with Groundprint, LLC directly regarding Groundprint, LLC’s availability
on an individual project basis.
Cost and Terms
Groundprint, LLC charges on a time-and-materials basis, with an hourly rate of $110. Invoices
are sent on a monthly basis and payment is due within 30 days.
Date: April 12, 2019
_________________________________ Susan Riggs, AICP
Principal
Groundprint, LLC
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