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HomeMy WebLinkAboutCity Commission Meeting 5.18.2020 C6 Contract Agrmt Rocky Mountain Contractors. City Conduit System Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: David Fine, Urban Renewal Program Manager SUBJECT: Authorize the Interim City Manager to Sign Contract Agreement with Rocky Mountain Contractors, Inc. for Extension of the City Conduit System MEETING DATE: May 18, 2020 AGENDA ITEM TYPE: Consent RECOMMENDATION: Authorize the Interim City Manager to sign the Contract Agreement with Rocky Mountain Contractors, Inc. BACKGROUND: The City of Bozeman owns a multiple duct fiber optic conduit system, which it licenses to competitive providers of differentiated broadband services. The system lowers the cost of providing broadband services and protects and preserves investments in public assets by reducing the need to bore and trench in the public right of way to deploy next generation broadband infrastructure. The proposed Agreement extends the City conduit system to serve the Monarch mixed-use project on W. Peach St. The project did not apply for an extension of the City conduit system to their project, since the District Board had planned to independently extend the system several blocks of Peach St. The project was delayed indefinitely due to cost. The Monarch, however, is immediately across the street from an existing City access vault. To meet the District goal of connecting new projects to essential infrastructure, it is appropriate to make this extension of the City conduit system. FISCAL EFFECTS: The directional boring and vault placement services in the Contract Agreement cost $6,850. Funding for making connections to the conduit system is 66 appropriated in the Fiscal Year 2020 Midtown Urban Renewal District Work Plan and Budget. ATTACHMENT: Contract Agreement with Rocky Mountain Contractors. 67 Page 1 of 16 CONTRACT AGREEMENT This Agreement is made this ____ day of May, 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, P.O. Box 1230, Bozeman, Montana 59771-1230 (“City”), and Rocky Mountain Contractors, Inc., 281 Arden Drive, Belgrade, Montana, 59714 (“Contractor”). In consideration of the covenants, agreements, representations, and warranties contained herein, the parties agree as follows: 1. Work to be Performed: Extension of the City-owned 7-way conduit system from the vault at the corner of N. 6th Ave. and W. Peach St. to the Monarch mixed-use building. The City shall provide the service vault and conduit for the project. Unless otherwise provided in the Scope of Services attached hereto, Contractor shall furnish all the labor, materials, equipment, tools, and services necessary to perform and complete the Work. 2. Contract Documents: The Contract Documents which comprise the entire agreement between the City and Contractor as attached to or referenced in this Agreement, are made a part hereof by this reference and consist of the following: a. This Agreement. b. Proof of Insurance and Performance and Payment Bonds. c. Montana Public Works Standard Specifications, 6th Edition (MPWSS), and as further amended by the City of Bozeman Modifications to MPWSS. d. Notice to Proceed. There are no Contract Documents other than those listed above in this Section 2. The Contract Documents may not be altered, amended or repealed except by a modification (as defined in the MPWSS, General Conditions). 3. Time of Performance: Contractor shall begin the Work after receiving a Notice to Proceed from City and shall complete the Work no later than June 30, 2020. Time is of the essence of completion of all work and each phase of the Work. 4. Payment: a. Upon satisfactory final completion and acceptance of the Work, City shall pay to Contractor, and Contractor shall accept as full payment for the performance of this Agreement and the Work, the amount of six thousand, eight hundred fifty dollars ($6,850). 68 Page 2 of 16 b. If work not included within the Scope of Services, Attachment A is requested by City, such additional work and the related compensation shall be agreed to in writing by both parties prior to commencement of the additional work (“Change Order”). c. Contractor shall submit applications for payment in accordance with the Montana Public Works Standard Specification, 6th Edition General Conditions. Applications for payment will be processed as provided in the General Conditions. d. Upon acceptance of final payment and for other good and valuable consideration, Contractor shall and hereby does release and forever discharge City, its officers, agents, and employees of and from any and all claims, demands, actions, causes of action, obligations, and liabilities of every kind and character whatsoever, in law and in equity, whether now known or in the future discovered, arising from or related to this Agreement or the Work that Contractor may have or assert against City, its officers, agents, and employees. e. Contractor warrants and guarantees to City that all Work will be in accordance with the Contract Documents and will not be defective. Prompt notice of all defects shall be given to Contractor. All defective Work, whether or not in place, may be rejected, corrected or accepted as provided in the MPWSS. 5. Inspection and Testing: a. City has the right to inspect and test any and all Work performed by Contractor. Contractor shall allow City and its agents access to the Work at all times and shall provide every reasonable facility for the purpose of such inspection and testing, including temporarily discontinuing portions of the Work or uncovering or taking down portions of the finished Work. Any inspection and testing performed by the City and its agents is for the sole benefit of the City and shall not relieve the Contractor of its duty, responsibility, and obligation to ensure that the Work strictly complies with the Agreement terms and conditions and all applicable laws and building and safety codes. City’s inspection and testing shall not be deemed or considered acceptance by the City of any portion of the Work. City’s inspection and testing shall not serve to nullify, amend, or waive any warranties provided by the Contractor under this Agreement. b. Contractor shall, without charge, replace any material or correct any Work found by the City or its agents to be defective or otherwise not in compliance with the terms and conditions of this Agreement. In the event Contractor fails to replace or correct any defective work or materials after reasonable written notice by the City to do so, the City may take such corrective action, either with its own materials and employees or by retaining any third party to do so, and deduct the cost and expense of such corrective action from the Contractor’s compensation. 69 Page 3 of 16 6. Contractor’s Representations and Warranties: In order to induce the City to enter into this Agreement, Contractor represents and warrants as follows: a. Contractor has familiarized himself with the nature and extent of the Contract Documents, Work, the Work site, 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 Work. b. Contractor has studied carefully all reports of investigations and tests of subsurface and latent physical conditions at the site or otherwise affecting cost, progress or performance of the Work. c. Contractor has made or caused to be made examinations, and investigations as he deems necessary for the performance of the Work at the contract price, within the contract time and in accordance with the other terms and conditions of the Contract Documents, and no additional examinations, investigations, tests, reports or similar data are or will be required by Contractor for such purposes. d. Contractor has correlated the results of all such observations, examinations, investigations, tests, reports and data with the terms and conditions of the Contract Documents. e. Contractor and its sureties are liable for the satisfaction and full performance of all warranties. 7. General Requirements: a. Contractor Use of Premises. The Contractor shall confine his operations at site of the proposed work to within the right-of-way or construction easements provided. b. Safekeeping of Equipment and Materials on Work Site. It shall be understood that the responsibility for protection and safekeeping of equipment and materials on or near the site will be entirely that of Contractor and that no claim shall be made against the City by reason of any act of an employee or trespasser. It shall be further understood that should any occasion arise necessitating access by the City to the sites occupied by these stored materials and equipment, the Contractor owning or responsible for the stored materials or equipment shall immediately remove same. No materials or equipment may be placed upon any private property until the property owner has agreed in writing to the location contemplated by the Contractor to be used for storage. c. Excavation. Where excavation will be required adjacent to existing structures, the Contractor shall be solely responsible to maintain the structural integrity of the existing 70 Page 4 of 16 structures. The Contractor shall take whatever means necessary to insure that the existing structure is not damaged and if necessary shall install sheet piling. The Contractor shall repair all damage to the existing structures at his own expense. Any fences destroyed during construction shall be repaired to the satisfaction of the property owner. Any delay, additional work, or extra cost to the Contractor caused by existing underground installations shall not constitute a claim for extra work, additional payment or damages. d. Protection of Existing Mailboxes, Curbs and Gutters and Driveways. The Contractor shall take whatever means necessary to insure that the existing mailboxes, curbs and gutters and driveways are not damaged during construction. If it is necessary to remove or disturb mailboxes during construction, the Contractor shall repair and restore the mailboxes at his own expense to the satisfaction of the property owner. Any curb, gutter, or driveways damaged during construction, not noted to be replaced on the drawings, shall be replaced by the Contractor at his own expense. e. Surface Drainage. Water from such sources as surface runoff, dewatering and flushing of water lines during project construction shall not be allowed to enter into drainage ways or open areas that will cause flooding of existing structures, street intersections, or lawn areas. f. Debris; Restoration. While performing the Work, and as part of the final completion of the Work, Contractor shall clean up the Work site, including the removal and satisfactory disposal of all waste, garbage, excess materials, and equipment, and the performance of any other work necessary to restore the site to at least as good order and condition as at the commencement of the Work. Any disturbed landscaped areas shall be properly restored. g. Work Sequence. The Contractor shall schedule the work to minimize inconvenience to the City and to adjacent property owners and to minimize interruptions to utility service. This shall include minimizing obstruction to local traffic especially on dead end streets. Work shall be scheduled so as to minimize disruptions to local mail delivery. h. Traffic Control. The Contractor shall conduct his work so as to interfere as little as possible with public travel, whether vehicular or pedestrian. Whenever it is necessary to cross, obstruct, or close roads and walks, the Contractor shall obtain approval of such actions from the County or Montana Department of Transportation and shall provide and maintain suitable and safe lighted detours or other temporary expedients for the accommodation of public and private travel in accordance with the current edition of the Manual on Uniform Control Devices for Streets and Highways (MUTCD). The Contractor shall not occupy the work site or initiate construction until all traffic control provisions are in place and the City has been so notified. The Contractor shall cooperate and coordinate his methods with the City’s traffic control plans prior to the disruption of the normal flow of any traffic. 71 Page 5 of 16 i. Safety. Safety provisions must be entirely adequate and meet with City, County, State and Federal regulations to protect the public on affected streets and roads. 1) Barricades and Lights. Prior to the start of construction across roads or walks, all construction permits shall be obtained, utility companies notified, and traffic patterns, signing, location of flagmen, barricades and other safety measures arranged. Providing and maintaining safety barricades, and other work site safety measures shall be the responsibility of the Contractor and shall be included in the contract price. 2) All open trenches and other excavations shall be provided with suitable barriers, signs, and lights to the extent that adequate protection is provided to the public. Obstructions, such as material piles and equipment, shall be provided with similar warning signs and lights. 3) All barricades and obstructions shall be illuminated by means of warning lights from sunset to sunrise. Materials stored upon or alongside public streets and highways shall be provided with similar warning signs and lights. 4) All barricades, signs, lights and other protective devices shall be installed and maintained in conformity with applicable statutory requirements and, where within railroad and highway right-of-way, as required by the authority having jurisdiction thereover. 5) Work performed within property under the City’s jurisdiction shall have all barricades, signs, lights and protective devices installed and maintained. 8. Delays and Extensions of Time: If Contractor’s performance of this Agreement is prevented or delayed by any unforeseen cause beyond the control of the Contractor, including acts or omissions of the City, Contractor shall, within ten (10) days of the commencement of any such delay, give the City written notice thereof. Further, Contractor shall, within ten (10) days of the termination of such delay, give the City written notice of the total actual duration of the delay. If the City is provided with these required notices and if the City determines that the cause of the delay was not foreseeable, was beyond the control of the Contractor, and was not a result of the fault or negligence of the Contractor, then the City will determine the total duration of the delay and extend the time for performance of the Agreement accordingly. Unless the delay is caused by the intentional interference of the City with the Contractor’s performance, Contractor shall make no claim for damages or any other claim other than for an extension of time as herein provided by reason of any delays. 72 Page 6 of 16 9. Suspension: a. The City may, by written notice to the Contractor and at its convenience for any reason, suspend the performance of all or any portion of the work to be performed on the Work (“Notice of Suspension”). The Notice of Suspension shall set forth the time of suspension, if then known to the City. During the period of suspension, Contractor shall use its best efforts to minimize costs associated with the suspension. b. Upon Contractor’s receipt of any Notice of Suspension, unless the notice requires otherwise, Contractor shall: (1) immediately discontinue work on the date and to the extent specified in the Notice of Suspension; (2) place no further orders or subcontracts for materials, services, or equipment; (3) promptly make every reasonable effort to obtain suspension upon terms satisfactory to City of all orders, subcontracts, and rental agreements to the extent that they relate to the performance of the work suspended; and (4) continue to protect and maintain the Work, including those portions on which work has been suspended. c. As compensation for the suspended Work, Contractor will be reimbursed for the following costs, reasonably incurred, without duplication of any item, and to the extent that such costs directly resulted from the suspension: (1) all reasonably incurred costs for the demobilization of Contractor’s and subcontractor’s crews and equipment; (2) an equitable amount to reimburse Contractor for the cost to protect and maintain the Work during the period of suspension; and (3) an equitable adjustment in the cost of performing the remaining portion of the work post-suspension if, as a direct result of the suspension, the cost to Contractor of subsequently performing the remaining work on the Work has increased or decreased. d. Upon receipt of written notice by the City to resume the suspended work (“Notice to Resume Work”), Contractor shall immediately resume performance of the suspended work as to the extent required in the Notice to Resume Work. Any claim by Contractor for time or compensation described in Section 9(c) shall be made within fifteen (15) days after receipt of the Notice to Resume Work and Contractor shall submit a revised Work Schedule for the City’s review and approval. Contractor’s failure to timely make such a claim shall result in a waiver of the claim. e. No compensation described in Section 9(c) shall be paid and no extension of time to complete the Work shall be granted if the suspension results from Contractor’s non- compliance with or breach of the terms or requirements of this Agreement. 73 Page 7 of 16 10. 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, and may immediately take possession of and use such materials, appliances, tools, and equipment as may be on the site and which may be necessary for the completion of the Work. b. In the event of a termination pursuant to this Section 10, Contractor shall be entitled to payment only for those services Contractor actually rendered. In the case of a lump sum or unit price contract, Contractor shall not be entitled to any further payment until the Work has been completed. Upon completion of the Work, if the unpaid balance of the Contractor’s compensation exceeds the cost to the City of completing the work, including all costs paid to any subcontractors or third parties retained by the City to complete the Work and all administrative costs resulting from the termination (“City’s Cost for Completion”), such excess shall be paid to the Contractor. If the City’s Cost for Completion exceeds the unpaid balance of the Contractor’s compensation, then Contractor and its sureties shall be liable for and shall pay the difference, plus interest at the rate applicable to court judgments, to the City. c. Any termination provided for by this Section 10 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 10, 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. 11. 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 work on the Work, 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 work on the Work, discontinue placing orders for materials, supplies, and equipment for the Work, and make 74 Page 8 of 16 every reasonable effort to 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, in progress, or in transit to the construction site. c. In the event of a termination pursuant to this Section 11, Contractor is entitled to payment only for those services Contractor actually rendered and materials actually purchased or which Contractor has made obligations to purchase on or before the receipt of the Notice of Termination for City’s Convenience, and reasonably incurred costs for demobilization of Contractor’s and any subcontractor’s crews. It is agreed that any materials that City is obligated to purchase from Contractor will remain the City’s sole property. d. The compensation described in Section 11(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. 12. 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 ten (10) 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. 13. Representatives: a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be David Fine, Urban Renewal Program Manager, 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 75 Page 9 of 16 circumstances when City’s Representative is not available, Contractor may direct its communication or submission to other designated City personnel or agents 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 Jeremy Maus, Eastern Telecom Manager, 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. 14. Locating Underground Facilities: Contractor shall be responsible for obtaining and determining the location of any underground facilities, including but not limited to, the location of any pipelines or utility supply, delivery, or service lines in accordance with the provisions of §69-4-501, et seq., MCA. Contractor shall make every effort to avoid damage to underground facilities and shall be solely responsible for any damage that may occur. If City personnel assume responsibility for locating any underground facilities, this fact shall be noted in writing prior to commencement of such location work. 15. 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, pay all fees and charges in connection therewith, and perform all surveys and locations necessary for the timely completion of the Work. 16. Ownership of Documents; Indemnification: All plans, designs, drawings, specifications, documents, sample results and data, in whatever medium or format, originated or prepared by or for Contractor in contemplation of, or in the course of, or as a result of this Agreement or work on the Work, shall be promptly furnished to the City (“City Documents and Information”). All City Documents and Information shall be the exclusive property of the City and shall be deemed to be works-for-hire. Contractor hereby assigns all right, title, and interest in and to the City Documents and Information, including but not limited to, all copyright and patent rights in and to the City Documents and Information. Neither party grants to the other any express or implied licenses under any patents, copyrights, trademarks, or other intellectual property rights, except to the extent necessary to complete its obligations to the other under this Agreement. 76 Page 10 of 16 17. Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, Montana Contractor Registration requirements, Montana Contractors Gross Receipts Tax (Title 15, Chapter 50, MCA), 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. 18. Nondiscrimination: The Contractor shall have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor shall 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 require these nondiscrimination terms of its subcontractors providing services under this Agreement. 19. Intoxicants; DOT Drug and Alcohol Regulations: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, upon the site of the Work. 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. 20. Labor Relations: a. In the event that, during the term of this Agreement and throughout the course of Contractor’s performance of the Work, any labor problems or disputes of any type arise or materialize which in turn cause any work on the Work 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 to resume work on the Work 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 work on the Work to resume and be completed within the time frames set forth in the Construction Schedule at no additional cost to City. 77 Page 11 of 16 b. 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. 21. Subcontractors: a. Contractor may employ subcontractors for any part of the Work. Contractor shall provide City with a list of all subcontractors employed. b. Contractor remains fully responsible for the acts and omissions of any subcontractor, just as Contractor is for its own acts and omissions, and Contractor shall remain fully responsible and liable for the timely completion of the Work. c. Contractor is solely liable for any and all payments to subcontractors. Contractor shall hold all payments received from the City in trust for the benefit of subcontractors, and all such payments shall be used to satisfy obligations of the Work before being used for any other purpose. Contractor shall make any payments due to any subcontractor within seven (7) days of Contractor’s receipt of payment, including a proportional part of the retainage Contractor has received from the City. In the event of a dispute regarding any subcontractor’s invoice, Contractor shall promptly pay the undisputed amount to the subcontractor and notify the subcontractor in writing of the amount in dispute and the reasons for the dispute. Any withholding of payment must comply with the requirements of §28-2-2103, MCA. In the event Contractor is unwilling or unable to make timely and proper payment to any subcontractor, City may elect to withhold any payment otherwise due to Contractor and upon seven (7) days’ written notice to Contractor, may pay subcontractor by direct or joint payment. 24. Indebtedness and Liens: Before City may make any final payment to Contractor, Contractor shall furnish City with satisfactory proof that there are no outstanding debts or liens in connection with the Work. If the Contractor allows any indebtedness to accrue to subcontractors or others during the progress of the work, and fails to pay or discharge the same within five (5) days after demand, then City may either withhold any money due to Contractor until such indebtedness is paid or apply the same towards the discharge of the indebtedness. If any lien or claim is filed or made by any subcontractor, material supplier, or any other person, the Contractor shall immediately notify the City and shall cause the same to be discharged of record within thirty (30) days after its filing. 25. Indemnification; Insurance; Bonds: a. Contractor agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of 78 Page 12 of 16 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; or (ii) any negligent, reckless, or intentional misconduct of any of the Contractor’s agents. b. 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). c. Contractor’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. d. 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. e. 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. f. 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. g. These obligations shall survive termination of this Agreement and the services performed hereunder. h. 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 79 Page 13 of 16 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 shown below:  Workers’ Compensation – not less than statutory limits;  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;  Products and Completed Operations – $1,000,000;  Automobile Liability - $1,000,000 property damage/bodily injury; $2,000,000 annual aggregate (all owned, hired, non-owned vehicles);  Builder’s Risk/Property Insurance at least as broad as that provided by the ISO special causes of loss form (CP10 30) naming at a minimum the City in an amount equal to greater of Contractor’s compensation or full replacement value of the work (covering at a minimum all work, buildings, materials and equipment, whether on site or in transit, loss due to fire, lightening, theft, vandalism, malicious mischief, earthquake, collapse, debris removal, demolition occasioned by enforcement of laws, water damage, flood if site within a flood plain, repair or replacement costs, testing and start-up costs) on an all risk coverage basis. This insurance must include waivers of subrogation between the City and Contractor to the extent that damage to the Work or City Hall is covered by other insurance;  Owner’s and Contractor’s Protective Liability: one policy designating the City (including its agents, representatives, employees, and officers) as the insured and another independent policy designated the City’s Representative (including its consultants, consultants, agents and employees) as the insured on the declarations with both policies covering: (i) operations performed by the Contractor under this Agreement for the City; and (ii) the City’s and City’s Representatives acts or omissions, including negligent acts, in connection with its general supervision of the work of the Contractor’s and its subcontractors - $1,000,000 per occurrence; $2,000,000 aggregate;  Contractual Liability Insurance (covering the Contractor’s indemnity obligations described in this Agreement) - $1,000,000 per occurrence $2,000,000 aggregate The amounts of insurance provided 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 80 Page 14 of 16 suitable to City and shall include no less than a thirty (30) day notice of cancellation or non-renewal. Contractor shall notify City within two (2) business days of Contractor’s receipt of notice that any required insurance coverage will be terminated or Contractor’s decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. 26. Performance and Payment Bonds: The Contractor shall furnish a Performance Bond and a Payment Bond in favor of the City each in an amount equal to one-hundred Percent (100%) of the Agreement amount. 27. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. Contractor understands that all contractors or subcontractors working on a publicly funded project are required to pay or have withheld from earnings a license fee of one percent (1%) of the gross contract price if the gross contract price is Five Thousand Dollars ($5,000) or more. This license fee is paid to the Montana Department of Revenue. 28. 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 shall be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 29. Attorney Fees: In the event it becomes necessary for either party to 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 given notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel (to include the City Attorney’s Office). 30. Survival: Contractor’s indemnification and warranty obligations shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 81 Page 15 of 16 31. 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. 32. Waiver: A waiver by City of any default or breach by Contractor of any covenants, terms, or conditions of this Agreement does not limit City’s right to enforce such covenants, terms, or conditions or to pursue City’s rights in the event of any subsequent default or breach. 33. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 34. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 35. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 36. Amendments: This Agreement may not be modified, amended, or changed in any respect except by a written document signed by all parties. 37. 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. 38. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 39. Assignment: Contractor may not assign this Agreement in whole or in part without the prior written consent of the City. No assignment will relieve Contractor of its responsibility for the performance of the Agreement and the completion of the Work. Contractor may not assign to any third party other than Contractor’s subcontractors on the Work, the right to receive monies due from City without the prior written consent of City. 40. Authority: Each party represents that it has full power and authority to enter into and perform this Agreement and the person signing this Agreement on behalf of each party has been properly authorized and empowered to sign this Agreement. 41. Independent Contractor: The parties agree and acknowledge that in the performance of this Agreement and the completion of the Work, Contractor shall render services 82 Page 16 of 16 as an independent contractor and not as the agent, representative, subcontractor, or employee of the City. The parties further agree that all individuals and companies retained by Contractor at all times will be considered the agents, employees, or independent contractors of Contractor and at no time will they be the employees, agents, or representatives of the City. 42. 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. IN WITNESS WHEREOF, Contractor and City have caused this Agreement to be executed, effective on the date written above, and intend to be legally bound thereby. CITY OF BOZEMAN, MONTANA CONTRACTOR By: _______________________________ By: Dennis Taylor, Interim City Manager Print Name: Title: APPROVED AS TO FORM: By: _______________________________ Greg Sullivan, City Attorney 83 Quote Date Town Job Name P.O. Box 8688, Kalispell, MT 59904 Job Location Phone Description Quantity Price 60.00 1,725.00$ 25.00 750.00$ 3.00 1,500.00$ 1.00 2,000.00$ 1.00 150.00$ 1.00 625.00$ 1.00 100.00$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ 6,850.00$ Authorized We Propose hereby to furnish services - Complete in accordance with above specifications, for the sum of: 28.75 30.00 500.00 2,000.00 Materials supplied by RMC will be cost plus 20% Soil Condition Enter existing HH Set Vault 150.00 Bore 7way Concrete R&R Hard surface potholes Bond Traffic Control 100.00 Price each 4/29/20 Peach and 6th Bozeman 625.00 Date of Acceptance__________________________________________ Signature___________________________________________________________________ Penetrating building and routing fiber through building will be HRLY Signature___________________________________________________________________ _ City, State, Zip All work is guaranteed to be as specified. All work to be completed in a workmanlike manner according to standard practices. Any alteration or deviation from above specifications involving extra costs will be executed only upon written orders, and will become an extra charge over and above the estimate. Miscellaneous: Customer Responsible for all permits unless stated otherwise. RMC will provide Customer with itemized bore log. successful and customer would like us to continue, an additional daily rate will be charged for crew and equipment of $3,500.00 per day (above and beyond the footage obtained if successful) until either the bore is completed or we are instructed to pull off by customer. Signature___________________________________________________________________ _ Payment Terms: Net 10 Proposal Submitted To City Of Bozeman Street Note: This proposal may withdrawn by us if not accepted within 30 days. Acceptance of Proposal - The above prices, specifications, and conditions are satisfactory and are hereby accepted. You are authorized to do work as specified. Payment will be made as outlined above. In extreme conditions RMC will make three attempts, if RMC has not yet been 84