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HomeMy WebLinkAbout20- RFP - Fowler Ave ConnectionPage 1 of 25 Request for Proposals (RFP) Fowler Avenue Connection Main Street to Oak Street CITY OF BOZEMAN Bozeman, MT City of Bozeman PO Box 1230 Bozeman, MT 59771-1230 March 2020 NOTICE IS HEREBY given that the City of Bozeman (City) is seeking proposals from qualified engineering firms to provide professional services for the design and construction of Fowler Avenue between Main Street and Oak Street. Copies of the Request for Proposals are available on the City’s website at https://www.bozeman.net/government/city-clerk/bids-rfps-rfqs. All proposals must be in the format specified, enclosed in a sealed envelope and clearly identified with RFP title, company name and due date, and transmitted via hard copy together with an electronic searchable PDF version. Deliver RFPs to the City Clerk by Wednesday, April 8th at 3:00 p.m. MST. It is the sole responsibility of the proposing party to ensure that proposals are received prior to the closing time as late submittals will not be accepted and will be returned unopened. The physical address is: City Clerk’s Office, Suite 200, (upstairs) City Hall, 121 N. Rouse Avenue, Bozeman, Montana. The mailing address is: City Clerk’s Office, City Hall, P.O. Box 1230, Bozeman, Montana, 59771 (USPS only, shipping companies should be sent to the physical address) NON-DISCRIMINATION The City of Bozeman is an Equal Opportunity Employer. Discrimination in the performance of any agreement awarded under this RFP on the basis of race, color, religion, creed, sex, age, marital status, national origin, or actual or perceived sexual orientation, gender identity or disability is prohibited. This prohibition shall apply to the hiring and treatment of the awarded entity’s employees and to all subcontracts. As such, each entity submitting under this notice shall include a provision wherein the submitting entity, or entities, affirms in writing it will not discriminate on the basis of race, color, religion, creed, sex, age, marital status, national origin, or because of actual or perceived sexual orientation, gender identity or disability and which also recognizes the eventual contract will contain a provision prohibiting discrimination as described above and that this prohibition on discrimination shall apply to the hiring and treatment of the submitting entity’s employees and to all subcontracts. Failure to comply with the above may be cause for the City to deem the submittal non-responsive. Any administrative questions regarding proposal procedures should be directed to: Mike Maas, City Clerk (406) 582-2321, agenda@bozeman.net. Any technical questions relating to the RFP scope of services shall be directed in writing to: Taylor Lonsdale, Engineer III, (406) 582-2286, tlonsdale@bozeman.net. DATED at Bozeman, Montana, this 8th day of March 2020. Mike Maas City Clerk City of Bozeman For publication on: Sunday, March 8, 2020 Sunday, March 15, 2020 Sunday, March 29, 2020 I. INTRODUCTION The City of Bozeman is seeking project specific proposals from qualified firms for professional engineering services for the construction of Fowler Avenue from Huffine Lane to Oak Street. The initial professional services contract will be for design phase services only, but respondents will be ranked based on their abilities to provide complete design and construction phase services for the project. The release of this RFP alone shall not commit the City to enter into a Professional Services Agreement, to pay any expenses incurred in preparation of any response to this request, or to procure or contract for any supplies, goods or services. This procurement is governed by the laws of the State of Montana and venue for all legal proceedings shall be in the 18th Judicial District Court, Gallatin County. By offering to perform services under this RFP, all Submitters agree to be bound by the laws of the State of Montana and of the City. II. PROJECT BACKGROUND AND DESCRIPTION Fowler Avenue is identified as a minor arterial in the Bozeman Transportation Master Plan (TMP). The Fowler Avenue Connection project will connect Huffine Lane to Oak Street and Davis Lane creating a significant north-south connection in Bozeman’s transportation network. The corridor for this project passes along and between existing City subdivisions as well as properties that are currently in Gallatin County. Fowler Avenue will connect neighborhoods to schools, parks, and commercial centers for employment as well as shopping. Due to the potential impact this project will have on adjacent neighborhoods and its importance to the transportation system, the design will be informed by a coordinated public input process. Even though construction of the Fowler Avenue Connection is not scheduled until FY23, the City of Bozeman plans to begin the public input and Right of Way acquisition process well in advance of construction. III. SCOPE OF SERVICES The preliminary scope of work involved for this project is outlined below. Additional tasks and work elements may be added during contract negotiations. It is also possible that tasks or elements could be deleted through negotiation. In its proposal, the consultant may recommend addition/deletion of tasks or modification of tasks in describing its particular understanding and approach for the project. Proposals must clearly identify any elements of the proposed scope of work that would not be provided by the prime consultant. Any sub-consultants which comprise the overall consultant team must be identified along with a description of past working history between the firms. The City desires to complete the proposed work in a diligent manner. Proposals must clearly indicate the consultant’s anticipated schedule given their staffing and current and projected work load commitments. • Develop and implement a communication plan for the project. o Organize, promote, and lead the public input process to engage a broad range of stakeholders in discussion of priorities and design concepts for the corridor. This will likely include working with the City’s Neighborhood Coordinator to engage specific neighborhoods, as well as the Bozeman Area Bicycle Advisory Board, the Pedestrian and Traffic Safety Committee, Streamline, other City boards, and the community at large. Given the scope and potential impact of this project creative solutions to engaging stakeholders should be considered. The public engagement task is viewed as a distinct and critical phase for a project of this importance. Proposals should clearly outline the proposed approach to this task. o Provide communication and public engagement through the design and construction phases of the project. In addition to public engagement surrounding concept design, continued communication will be important through final design, right of way acquisition, and leading up to and through construction. A project of this type will be disruptive and well organized communication will help to reduce frustration. • Provide pre-design services. o Provide environmental analysis including wetland delineation and mitigation alternatives as necessary. o Provide surveying services to include topographic survey as well as any boundary survey required for right of way evaluation. o Identify design alternatives, prepare preliminary cost estimates, preliminary layouts, utility conflict identification, and preliminary right-of-way analysis. o Confirm traffic projections and recommended improvements to meet the corridor needs for a 20 year design period. Provide a predesign analysis comparing the installation of roundabouts versus traffic signals as the means of traffic control at the intersections. o Perform soils and pavement design evaluations. o Evaluate design alternatives for street storm drainage systems, including hydrology and hydraulic analysis. • Design water and sewer improvements as outlined in the City CIP and included in initial scoping. • Complete the final design for the selected roadway and storm drainage options. • Coordinate with the City’s right of way acquisition consultant to acquire all necessary rights of way to complete the selected improvements. • Design report preparation. • Provide complete design and construction management services for the completion of the improvements. Services shall include but not be limited to surveying, geotechnical, structural, electrical and transportation to complete all geometric improvements, lighting, signing, striping, storm drainage, sanitary sewer, utility extensions or relocations and all other improvements necessary to complete the corridor. • Provide project bidding and award assistance. IV. PROPOSAL REQUIREMENTS Firms interested in providing the services described above are requested to submit the following information. Responses to each item should appear in the same order as in this RFP and should identify the item to which the responses applies. • Firm Background • Project Overview • Project Approach • Management Approach • Staff Qualifications • Related Experience with Projects Similar to the Scope of Services • Proposed Schedule a) Affirmation of Nondiscrimination (see Appendix A) Non-completion of the Affirmation of Nondiscrimination is cause for disqualification of firms. V. TIMELINES, DELIVERY DEADLINE, AND INSTRUCTIONS EVENT DATE/TIME Publication dates of RFP Sunday, March 8, 2020 Sunday, March 15, 2020 Sunday, March 22, 2020 Deadline for receipt of proposals Wednesday, April 8th at 3:00 p.m. MST Evaluation of proposals TBD Interviews (if necessary) and Selection of consultants TBD With the exception of the advertising dates and advertised due date, the City reserves the right to modify the above timeline. VI. AMENDMENTS TO SOLICITATION Any interpretation or correction of this request will be published on the City’s webpage. The deadline for questions related to this document is 12:00 PM MST on March 25, 2020. VII. CONTACT INFORMATION Any administrative questions regarding proposal procedures should be directed to: Mike Maas, City Clerk, (406) 582-2321, agenda@bozeman.net Technical questions related to the scope of services or requests for additional information relating to this project of RFP requirements should be directed in writing to: Taylor Lonsdale, Engineer III, tlonsdale@bozeman.net VIII. RFP – FORM AND CONTENTS Deliver one (1) original, five (5) copies, and one searchable PDF digital copy (via flash drive), prepared as follows: i. General Instructions: a. RFP responses must be bound and signed by an officer or principal of your firm. b. RFP responses must be contained in a document not to exceed 20 pages total (20 single-sided or 10 double-sided pages) including whatever pictures, charts, graphs, tables, and text the firm deems appropriate to be part of the review of the firm's qualifications. A separate transmittal letter, cover page, cover sheets, dividers, and resumes are exempted from the page limit. Page size is limited to 8-l/2 x 11 inches, with no smaller than 0.75” margins, with basic text information no smaller than 11-point type. c. Schedules may be submitted in addition to the page limit. ii. Proposal Contents a. Section 1 – Firm Background: The Proposal shall include the names, offices, addresses, email addresses and phone numbers for Consultant and subconsultant staff that are proposed to be involved in the project. The Proposal shall identify in which office(s) the majority of production will occur. b. Section 2 – Project Overview: The Proposal shall include a description of the Consultant’s understanding of the Project. The Proposal shall include a statement acknowledging the Scope of Services. At a minimum, this should include a description of proposed technical memoranda, data, and report deliverables. c. Section 3 – Project Approach: The Proposal shall provide a detailed description of the proposed approach to the Project. The description shall include details to implement the tasks described in the Scope of Services. The Consultant is encouraged to provide comments and enhancements to the scope provided in the RFP. The Proposal shall include a discussion regarding the Project’s technical issues and the Consultant’s approach to handling these issues. The Consultant shall also explain how technical memos, workshops, and review meetings will be used, working with the framework of the Scope of Services, to achieve consensus. Emphasis should be placed on how the Consultant’s technical approach will promote the Project’s success. d. Section 4 – Management Approach: The Proposal shall include a discussion regarding the Consultant’s management approach, including coordination and monitoring of project schedule, cost, scope, communications, quality, resources, and other management issues that the Consultant feels should be addressed. Emphasis should be placed on how the Consultant’s management approach will promote the Project’s success. The Consultant’s approach to quality control in the preparation of documents and other deliverable shall be clearly described in this section as well. e. Section 5 – Staff Qualifications: The Proposal shall include a team member organizational chart and a listing and biography of key individuals proposed to be assigned to the project. Each individual’s proposed position, responsibility, present and projected workloads shall be indicated. Special emphasis shall be provided on the individual’s backgrounds, qualifications, certifications, experience on related and similar projects, and the location from where their work will be performed. The Proposal shall clearly indicate who will be in charge of the project. At least three client references, including name, description of past working relationship, and current contact information, shall be listed for key individuals. Consultant/Subconsultant affiliation, and professional engineering licenses, including discipline and state of licensure, shall be designated for each individual. Full resumes may be included as an appendix to the Proposal (resumes are exempted from the page limit). f. Section 6 – Related Experience: The Proposal shall include profiles of similar projects that the firm(s) and proposed team members have completed in the last ten (10) years including project name, date, description and capacity of project, location, cost, and client reference including phone number. The firm's role in the project should also be described (planning, preliminary design, design, construction management, etc., and prime Consultant, subconsultant, etc.). For each project, indicate which proposed team members worked on the project and describe the role/work they performed and their levels of involvement. This section shall be limited to four (4) pages. g. Section 7 – Proposed Schedule: The Consultant shall develop draft schedule, using the resources proposed by the Consultant, and describe how the proposed staff will meet the resource requirements of the project. The Consultant shall prepare a schedule showing all major project tasks, milestones, and deliverables required to complete all work. The consultant shall assume a notice to proceed date of May 1, 2020. As the initial submittal to the City, PROPOSALS IN RESPONSE TO THIS RFP MUST BE DELIVERED NO LATER THAN 3:00 PM, MOUNTAIN TIME, April 8, 2020, in a sealed box or envelope with company name shown clearly on the outside, addressed to: Fowler Ave: Main St to Oak St Bozeman City Clerk City Hall 121 North Rouse Avenue Bozeman, MT 59715 RESPONSES THAT ARE UNSIGNED OR SUBMITTED BEYOND THE DEADLINE SHALL NOT BE CONSIDERED AND SHALL BE REJECTED. IX. SELECTION PROCEDURE A review committee will evaluate all responses to the RFP that meet the submittal requirements and deadline. The review committee, in its opinion, will chose the most qualified consultant to provide services required for the project. Submittals that do not meet the deadline will not be considered. A determination of finalists will be made by the selection committee based on review and evaluation of the written proposals received. The City reserves the right to interview finalists to aid in its consultant selection but does not guarantee that interviews will occur. The selection committee will choose, in its sole determination, the most-qualified consultant to perform professional services for the project. Contract negotiations will proceed after selection and will take into account the estimated value of services to be rendered, as well as the scope, complexity and professional nature thereof, in order to arrive at a contract which the City determines to be fair and reasonable. If the City is unable to negotiate a satisfactory contract with the consultant initially selected at a price the City determines to be fair and reasonable, negotiations with that consultant will be formally terminated and the City will select another consultant in accordance with MCA 18-8-204 and continue until an agreement is reached or the process is terminated. All submitted proposals must be complete and contain the information required as stated in the "Request for Proposals”. X. SELECTION CRITERIA Proposals will be evaluated on the following criteria and the requirements of MCA 18-8- 201 et seq; which includes the following criteria: • The consultant’s specific project approach and understanding; • Qualifications of professional personnel to be assigned to the project; • Capability to meet project time and budget requirements; • Location of the consultant in relation to project; • Present and projected workloads; • Related experience on similar projects; • Recent and current work for the City. XI. FORM OF AGREEMENT The consultant will be required to enter into a Professional Services Agreement contract with the City in substantially the same form as the professional services agreement attached as Attachment B. The consultant shall within its proposal identify any revisions, using MSWord track changes feature, to the standard contract language that it would desire if selected to perform services. If no revisions are desired, then a statement to this effect shall be provided. XII. CITY RESERVATION OF RIGHTS / LIABILITY WAIVER A. All proposals submitted in response to this RFP become the property of the City and public records and, as such, may be subject to public review. B. The City reserves the right to accept or reject any and all proposals; to add or delete items and/or quantities; to amend the RFP; to waive any minor irregularities, informalities, or failure to conform to the RFP; to extend the deadline for submitting proposals; to postpone award for up to 30 days; to award one or more contracts, by item or task, or groups of items or tasks, if so provided in the RFP and if multiple awards or phases are determined by the City to be in the public interest; and to reject, without liability therefore, any and all proposals upon finding that doing so is in the public interest. C. The City of Bozeman reserves the right to reject the proposal of any person/firm who previously failed to perform properly to the satisfaction of the City of Bozeman, or complete on time agreements of similar nature, or to reject the proposal of any person/firm who is not in a position to perform such an agreement satisfactorily as determined by the City of Bozeman. D. The City of Bozeman reserves the right to determine the best qualified Contractor and negotiate a final scope of service and cost, negotiate a contract with another Contractor if an agreement cannot be reached with the first selected Contractor, or reject all proposals. The professional services contract between the City of Bozeman and the successful Contractor will incorporate the Contractor's scope of service and work schedule as part of the agreement (see Appendix B for form of professional services agreement. The professional services agreement presented to the Contractor may differ from this form as appropriate for the scope of services). E. This RFP does not commit the City to award a contract. The City assumes no liability or responsibility for costs incurred by firms in responding to this request for proposals or request for interviews, additional data, or other information with respect to the selection process, prior to the issuance of an agreement, contract or purchase order. The Contractor, by submitting a response to this RFP, waives all right to protest or seek any legal remedies whatsoever regarding any aspect of this RFP. F. The City reserves the right to cancel, in part or in its entirety, this RFP including, but not limited to: selection procedures, submittal date, and submittal requirements. If the City cancels or revises this RFP, all Contractors who submitted proposals will be notified using email. G. Projects under any contract are subject to the availability of funds. XIII. NONDISCRIMINATION POLICY The City of Bozeman requires each entity submitting under this notice shall affirm, on a separate form provided, that it will not discriminate on the basis of race, color, religion, creed, sex, age, marital status, national origin, or because of actual or perceived sexual orientation, sexual preference, gender identity, or disability in fulfillment of a contract entered into for the services identified herein and that this prohibition on discrimination shall apply to the hiring and treatment of the submitting entity’s employees and to all subcontracts it enters into in the fulfillment of the services identified herein. Failure to comply with this requirement shall be cause for the submittal to be deemed nonresponsive. XIV. MISCELLANEOUS A. No Oral Agreements. No conversations or oral agreements with any officer, employee, or agent of the City shall affect or modify any term of this solicitation. Oral communications or any written/email communication between any person and City officer, employee or agent shall not be considered binding. B. No Partnership/Business Organization. Nothing in this solicitation or in any subsequent agreement, or any other contract entered into as a result of this solicitation, shall constitute, create, give rise to or otherwise be recognized as a partnership or formal business organization of any kind between or among the respondent and the City. C. Employment Restriction and Indemnity. No person who is an owner, officer, employee, contractor, or consultant of a respondent shall be an officer or employee of the City. No rights of the City’s retirement or personnel rules accrue to a respondent, its officers, employees, contractors, or consultants. Respondents shall have the responsibility of all salaries, wages, bonuses, retirement, withholdings, worker’s compensation and occupational disease compensation, insurance, unemployment compensation other benefits and taxes and premiums appurtenant thereto concerning its officers, employees, contractors, and consultants. Each Respondent shall save and hold the City harmless with respect to any and all claims for payment, compensation, salary, wages, bonuses, retirement, withholdings, worker’s compensation and occupational disease compensation, insurance, unemployment compensation other benefits and taxes and premiums in any way related to each respondent’s officers, employees, contractors and consultants. D. Accessibility. Upon reasonable notice, the City will provide assistance for those persons with sensory impairments. For further information please contact the ADA Coordinator Mike Gray at 406-582-3232 or the City’s TTY line at 406-582-2301. E. Procurement. When discrepancies occur between words and figures in this solicitation, the words shall govern. No responsibility shall attach to a City employee for the premature opening of an RFP not properly addressed and identified in accordance with these documents. F. Governing Law. This solicitation and any disputes arising hereunder or under any future agreement shall be governed and construed and enforced in accordance with the laws of the State of Montana, without reference to principles of choice or conflicts of laws. XV. ATTACHMENTS The following exhibits are incorporated in this RFP: Appendix A: Non-Discrimination Affirmation Appendix B: Form of Professional Services Agreement END OF RFP APPENDIX A NONDISCRIMINATION AFFIRMATION ____________________________________(name of entity submitting) hereby affirms it will not discriminate on the basis of race, color, religion, creed, sex, age, marital status, national origin, or because of actual or perceived sexual orientation, gender identity or disability and acknowledges and understands the eventual contract will contain a provision prohibiting discrimination as described above and this prohibition on discrimination shall apply to the hiring and treatments or proposer’s employees and to all subcontracts. ______________________________________ Name and title of person authorized to sign on behalf of submitter PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this _____ day of ____________, 2020, 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, ____________, _______________, 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 Exhibit “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 _____ day of ______________, 2020. 3. Scope of Services: Contractor will perform the work and provide the services in accordance with the requirements of the Scope of 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 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 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, 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 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 expert witness and consultants), losses, expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional misconduct of the Contractor; or (ii) any negligent, reckless, or intentional misconduct of any of the Contractor’s agents. 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 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 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: 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. 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 Taylor Lonsdale, Project Engineer 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 _____________________ 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, 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. 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. 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 __________________________. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first above written. CITY OF BOZEMAN, MONTANA ____________________________________ CONTRACTOR (Type Name Above) By________________________________ By_________________________________ Dennis Taylor, Interim City Manager Print Name: Print Title: ____________________________ APPROVED AS TO FORM: By_______________________________ Greg Sullivan, Bozeman City Attorney