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HomeMy WebLinkAbout20- RFQ - Bozeman Public Safety Center Special Inspection Material TestingBOZEMAN PUBLIC SAFETY CENTER SPECIAL INSPECTION AND MATERIALS TESTING REQUEST FOR QUALIFICATIONS CITY OF BOZEMAN PO BOX 1230 BOZEMAN, MT 59771-1230 JULY 2020 NOTICE IS HEREBY given that the City of Bozeman (City) is requesting proposals from qualified engineering consulting firms to perform SPECIAL INSPECTION AND MATERIALS TESTING for the Bozeman Public Safety Center (BPSC). The complete Request for Proposals packet is available for download on the City’s website at http://weblink.bozeman.net/WebLink8/0/doc/216810/Electronic.aspx. All proposals must be provided as a single, searchable PDF document file and be submitted digitally as an email attachment to the RFQ Recipient email address below. Respondents are advised that Recipient’s email attachment size limit is 25MB and that only one PDF file will be allowed per response. The subject line of the transmittal email shall clearly identify the RFQ title, company name and due date/time. File sizes greater than 25MB in size may be uploaded to bzncloud.bozeman.net upon special arrangement of the Recipient; however, it is the respondent’s sole responsibility to ensure the file upload is completed, and that the Recipient is separately notified via email of same, prior to the given deadline. The deadline to submit the RFQ response is August 7 at 3:00 p.m. MST. It is the sole responsibility of the responding individual to ensure their email transmittal is digitally timestamped as being sent to the Recipient’s email address prior to the prescribed closing time as late submittals will not be accepted. RFQ Recipient Email Address: cwinn@bozeman.net NON-DISCRIMINATION & GENDER PAY The City of Bozeman is an Equal Opportunity Employer. The Respondent agrees that all hiring by Respondent of persons performing this work shall be on the basis of merit and qualifications. The Respondent will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti- discrimination laws, regulations, and contracts. The Respondent 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 Respondent 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. In addition, on May 18, 2020, the Bozeman City Commission adopted Resolution 5169, which established policies regarding gender pay equity and requiring certain provisions be included in contracts and agreements. Such requirements apply to work to be performed under this RFQ. As such, each entity or person submitting under this notice shall include a provision wherein the submitting entity, or entities, affirms in writing it will not (i) 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 (ii) affirms compliance with the requirements of Resolution 5169. The affirmation statement contains a statement wherein the submitting entity must recognize the eventual contract will contain a provision prohibiting discrimination as described above, require compliance with Resolution 5169, and that this prohibition on discrimination and gender pay equity provisions shall apply to the hiring and treatment of the submitting entity’s employees and to all subcontracts. Failure to comply with these non-discrimination and equal pay requirements is cause for the City to disqualify the firm from selection. Any administrative questions regarding RFQ transmittal procedures or noticing materials shall be directed to: Mike Maas, City Clerk, (406) 582-2321, mmaas@bozeman.net. Any and all questions or clarifications relating to the RFQ scope of services, submittal contents, evaluation criteria, or selection procedures shall be directed solely and exclusively in writing to: Chuck Winn, Assistant City Manager, PO Box 1230 Bozeman, MT 59771-1230 or emailed to cwinn@bozeman.net. The respondent, and any of its associating parties, shall not contact other City staff in the preparation of its response to this RFQ. Emailed questions or clarifications will be accepted until August 5 at 11:59 p.m. MST after which time the questions will be compiled, anonymized and provided with a posted response on the City’s RFP webpage. Further questions will not be entertained after the question period has elapsed. The City reserves the right to amend or modify any element of this RFQ by issuance of an addendum at any time prior to the given submittal deadline. Any addenda that may be issued for this RFQ will be individually noticed on the City’s RFP webpage. It is the respondent’s responsibility to determine if any addenda have been issued. DATED at Bozeman, Montana, this 20th day of July, 2020. Mike Maas City Clerk City of Bozeman For publication on: Sunday, July 26, 2020 Sunday, August 2, 2020 I. INTRODUCTION The City of Bozeman (City) is requesting proposals from qualified engineering consulting firms to perform SPECIAL INSPECTION AND MATERIALS TESTING for the Bozeman Public Safety Center (BPSC). The release of this RFQ 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. II. PROJECT BACKGROUND AND DESCRIPTION The City of Bozeman is beginning construction of a 92,000 sq. ft. public safety center (BPSC) at 901 North Rouse Avenue. The BPSC is being constructed under the essential building requirement of the International Building Code (IBC) and will provide space for the Bozeman Police Department, Bozeman Fire Station #1, Municipal Courts, Prosecution and Victim Services. The project team includes the City of Bozeman (Owner), Thinkone Architects (Architect), Langlas Construction (General Contractor/Construction Manager), and Elkhorn (Commissioning Agent). The Owner is soliciting special inspection and materials testing services from a qualified engineering firm as required by the IBC. The successful firm will work directly for the Owner to insure these elements and work performed at the site meet the applicable code requirements. III. PRELIMINARY SCOPE OF WORK Release of this RFQ with the preliminary scope of services contained herein does not commit the City to contracting with a selected firm for all scope items identified. For purposes of this RFQ the term ‘selected firm’ can mean a single engineering consulting firm, or a prime engineering consulting firm together with sub-consultant engineering firm(s) forming a respondent team. The preliminary scope of work involved for this project is outlined below. The City desires for the scope of work to be completed in a diligent manner. Additional tasks and work elements may be inserted into the scope of work during contract negotiations with the selected firm. It is also possible that tasks or elements could be removed during negotiations or not included in an initial contract because of regulatory uncertainty, budget limitations, contracting strategy or any combination thereof. In its proposal, a firm may recommend addition/deletion of tasks and/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 engineering consulting firm. Any sub-consultants which comprise the respondent team must be identified along with a description of past working history between the firms. A summary of the special inspections and material testing requirements are attached to this request as Attachment A. Full requirements are provided in the Construction Documents Drawings and Project Manuals found HERE or at https://app.box.com/s/exwu6y2cuukmt8kpwxddobedltylp3df IV. PROPOSAL CONTENTS AND FORMAT Proposals must contain the following information and be organized under the headings below. A. Proposal Contents 1. Firm Background 2. Project Overview 3. Project Approach 4. Management Approach 5. Staff Qualifications 6. Related Experience on Similar Projects 7. Proposed Schedule 8. Nondiscrimination Affirmation Form (see Attachment A) i. Failure to provide a signed Nondiscrimination Affirmation is cause to disqualify the firm from selection. B. Proposal Format Respondents shall provide proposals as a single, searchable PDF document file format. 1. RFQ responses shall contain a cover letter, not exceeding one page in length, signed by an officer or principal of the responding prime firm. Digital signatures are allowed. 2. RFQ responses must be contained within 20 total pages or less, including whatever graphics, charts, tables, figures and text narrative the firm deems necessary and appropriate. Page size shall be no larger than 8-l/2 x 11 inches, with margins no smaller than 0.75 inches, and text information no smaller than 11-point type. 3. The following pages are exempted from the maximum 20 page limit: Cover Page, Cover Letter, Table of Contents Page, Divider Pages, and Resumes. Page size for exempted pages remains limited to 8-l/2 x 11 inches, with no smaller than 0.75” margins, and text no smaller than 11-point type. 4. An exception is granted to the otherwise required 8-l/2 x 11 inches page size for a project schedule sheet, which may be provided at a page size of 11 x 17 inches, but the schedule sheet does apply towards to maximum 20 page limit. V. RFQ DEADLINES & SELECTION TIMELINES EVENT DATE/TIME Publication dates of RFQ July 26 and August 2, 2020 Deadline for RFQ questions & clarifications August 5, 2020 at 3:30PM City Response to questions & clarifications August 6, 2020 Deadline for transmittal of proposals August 7, 2020 Evaluation of proposals Week of August 10, 2020 Contract Negotiation Week of August 10, 2020 Contract Authorization & Notice to Proceed Week of August 10, 2020 The timeline of events following deadline for transmittal of proposals is aspirational and is not predetermined. The City endeavors to conduct these post-deadline events diligently in order to arrive at contract authorization and notice to proceed by the date shown. Failure to reach the notice to proceed milestone by the date shown imparts no liability on the part of the City. VI. SUBMITTING THE PROPOSAL By submitting a proposal, the consulting firm makes an incontrovertible and unequivocal representation that it understands, respects, and agrees to be bound by the terms and processes described herein that the City will employ in its review, evaluation, selection and contract negotiations occurring under this RFQ procurement action. The proposal shall be submitted as stated in the notice. VII. SELECTION PROCEDURE Procurement of engineering services under this RFQ is governed by Sec. 18-8-201 MCA et. Seq. and the specific processes contained within this RFQ. Proposals meeting the submittal requirements and deadline will be distributed to a project selection committee for review and evaluation. The selection committee will consist of no fewer than 3 City staff members whose identities will remain anonymous ahead of the submittal deadline. Proposals will be distributed to the selection committee where they will be individually evaluated against the selection criteria below. Upon review, each member will assign an ordered ranking of the proposals from most-qualified to least-qualified. The most-qualified proposal will be assigned a ordinal value of one (1), the second most-qualified an ordinal value of two (2), continuing in this fashion until the least qualified proposal is found and given an ordinal value equaling the total count of proposals received. Ordinals assigned to each proposal by each committee member will then be summed together and sorted from lowest ordinal sum to highest ordinal sum, producing the selection committee’s initial ranking list from most-qualified to least- qualified. The selection committee will review the initial ranking list and determine at its sole discretion whether it will conduct interviews with the top ranking firms of its choosing, or it may determine that it will forego interviews and simply select the most-qualified firm from the initial ranking list to enter contract negotiations. Should the selection committee determine it will conduct interviews, it will select the firm it determines to be most-qualified upon a combined evaluation of the firm’s written proposal and interview performance. The firm determined by the selection committee to be most-qualified will be deemed the ‘selected firm’ for which the City will enter into contract negotiations. The City may choose multiple selected firms for contract negotiations if in its discretion it believes that discrete selected firms are most qualified for particular scope items and that the City will receive superior service and results than if all scope items are completed by a single selected firm. 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 that 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 Sec. 18-8-204 MCA and continue until an agreement is reached or the procurement process is terminated. VIII. SELECTION CRITERIA Proposals will be evaluated on the criteria listed below. These are minimum criteria listed in Sec. 18-8-204 MCA as well as an additional criterion capturing the consultant’s specific project approach and understanding. These criteria are not assigned point values for relative weighting in the evaluation and ranking process. Instead, selection committee members will review and evaluate the proposal as a whole to assign proposal rankings from most- to least-qualified. • 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 consulting firm; • Present and projected workloads; • Related experience on similar projects; • Recent and current work for the City. IX. FORM OF AGREEMENT The selected firm will be required to enter into a Professional Services Agreement contract with the City in substantially the same form as that provided as Attachment B hereto. Should the selected firm demand substantial revisions to this Professional Services Agreement contract, said demands may be considered just and sufficient cause for the City to immediately and unilaterally terminate contract negotiations. To begin contract negotiations, the initial draft of the Professional Services Agreement between the City and the selected firm will incorporate the scope of work and schedule as presented in its RFQ submittal. X. CITY RESERVATION OF RIGHTS / LIABILITY WAIVER A. All proposals submitted in response to this RFQ become the property of the City and are considered 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 preliminary scope items and/or quantities; to amend the RFQ; to waive any minor irregularities, informalities, or failure to conform to the RFQ; to extend the deadline for submitting questions or proposals; to postpone contract authorization and notice to proceed for any length of time it determines necessary; to award one or more contracts, by item or task, or groups of items or tasks, if so provided in the RFQ 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 reserves the right to reject the proposal of any person/firm who previously failed to perform properly to the satisfaction of the City, 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. D. The City reserves the right to determine the most-qualified consultant and negotiate a final scope of service and cost, negotiate a contract with another consultant if an agreement cannot be reached with the first selected consultant, or reject all proposals. E. This RFQ 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 engaging in the selection process, prior to the issuance of a contract. The consultant, by submitting a response to this RFQ, waives all right to protest or seek any legal remedies whatsoever regarding any aspect of this RFQ. F. The City reserves the right to cancel, in part or in its entirety, this RFQ including, but not limited to: selection procedures, submittal date, and submittal requirements. If the City cancels or revises this RFQ, all consultants who submitted proposals will be notified using email. G. Projects under any contract are subject to the availability of funds. XI. ATTACHMENTS The attachments below are incorporated in this RFQ: • Attachment A: Speical Inspection and Material Testing Summary of Requirements • Attachment B: Professional Services Agreement Form • Attachment C: Non-Discrimination Affirmation Form XII. OTHER RESOURCES As described above, full requirements are provided in the Construction Documents Drawings and Project Manuals found https://app.box.com/s/exwu6y2cuukmt8kpwxddobedltylp3df END OF RFQ EXCEPT FOR ATTACHMENTS ATTACHMENT A – Special Inspection and Material Testing Summary of Requirements Listed below is a summary of the Code required Special Inspections and Material Testing required for the Bozeman Public Safety Center in Bozeman, MT. Full requirements and detailed inspection, material testing, and frequency requirements are provided in the Construction Documents Drawings and Project Manuals. SPECIAL INSPECTION AND TESTING – SUMMARY OF REQUIREMENTS STATED ON S-003 and S- 004 • Cast in Place Structural Concrete  Verify mix design and strength testing  Inspection of reinforcing  Inspection of cast in anchors  Inspection of post installed anchors  Inspection of concrete placement  Inspection of formwork • Concrete Masonry Units  Prior to construction, verification of compliance of submittals  Prior to construction, verification of f’m  During construction, verification of f’m thru grout testing  During construction, verification of proportions of materials as delivered to the site. • Structural Steel Construction  Inspection of fabricators  Review material test reports and certifications  Placement of anchor rods and embeds  Verify welding procedures and welder qualifications  Inspection of welds  Inspection of bolts  Testing of steel construction • Structural Steel Construction for Seismic Resistance  Inspection of Reduced beam sections  Inspection of Protection zones  Inspection of Welding  Inspection of Bolts  Testing of steel construction • Steel Other than Structural Steel  Material verification of cold-formed steel deck  Inspection of cold formed steel deck attachment • Cold-Formed Steel Construction  Welding Inspection of elements of the seismic force resisting system  Inspection of screw attachments, bolting, anchoring, and other fastening components. INSPECTION AND TESTING OF SITE/CIVIL ITEMS – GENERAL SUMMARY OF REQUIREMENTS (MPWSS) • Water Distribution system:  Verification of backfill soil material  Compaction testing of trench backfill material  Leak testing and disinfection of Line • Storm Drain System  Verification of backfill soil material  Compaction testing of trench backfill material • Buried Electrical System  Verification of backfill soil material  Compaction testing of trench backfill material • Asphalt Pavement Sections  Compaction testing of in-place Sub Base material  Compaction testing of Base Course material  Compaction testing of Asphalt Pavement • Concrete Pavement Sections  Compaction testing of in-place Sub Base material  Compaction testing of Base Course material  Compaction testing of Concrete Pavement MATERIAL TESTING REQUIREMENTS ASPHALT CONCRETE TESTING Material Test Minimum Required Asphalt Concrete Pavement (Base Course and Surface Course) Compaction of Asphalt Concrete Pavement Mix design Gradation Asphalt Oil Content Marshal Test Rice Specific Gravity (MPWSS 02510) In-Place Density/Thickness (MPWSS 02510) In-Place Density/Compaction (MPWSS 02230) 93% Min. 1 Submittal 1 test/first day or 1/1000 TN 1 test/first day or 1/1000 TN 1 test/day or 1/1500 TN 1 test/day or 1/1500 TN 1 core/day or 1 core/500 TN 1 test/lift/2000SF CONCRETE/GROUT TESTING Material Tests Minimum Frequency Structural Concrete Structural Masonry - Grout Civil Site Work Concrete Air, Slump, temperature at placement, unit weight, 7-Day & 28 – Day Compressive Strength Slump, temperature at placement, 7-Day & 28 – Day Compressive Strength Air, Slump, temperature at placement, unit weight, 7-Day & 28 – Day Compressive Strength One composite sample for each day’s pour of each concrete mixture exceeding 5 cu.yd., but less than 25 cu. Yards, plus one set for each additional 50 cu. Yds. One composite sample for each day’s pour of each grout mixture for each 5,000 s.f., plus one extra set for each additional 5,000 s.f. One sample for each 100 cu. Yds or fraction thereof. SOIL TESTING Material Test Minimum Frequency Trench Backfill Trench Compaction Pipe Bedding Moisture Density and Optimum Moisture (MPWSS 02221) In-Place Density (MPWSS 02221) Pipe Bedding material Quality Tests (MPWSS 02221) 1 for each soil type Avg. 3 tests for every 50 lineal feet of trench, covering both subgrade and backfill compaction. Type 1 Bedding gradation and plasticity index, and Type 2 Bedding gradation Subgrade and Embankment Compaction of subgrade under exterior slabs, sidewalks, curbs, gutters and asphalt Moisture-Density (MPWSS 02230) In-Place Density (MPWSS 02230) 95% Minimum 1 per soil type / 1 per borrow source 1 test/2000 SF of hard surfacing (asphalt or concrete). Sub Base Course Compaction of Sub Base Course Crushed Base Course Crushed base course under curbs, gutters, and sidewalks Compaction of crushed base course under exterior slabs, sidewalks, curbs, gutters and asphalt Building Foundation Interior Building Slabs Gradation - Moisture Density – Fractured Faces (Crushed) - LA Abrasion, LL, PL, and PI (MPWSS 02234) In-Place Density(MPWSS 02234/1.3) 95% Minimum Gradation - Moisture Density – Fractured Faces (Crushed) - LA Abrasion, LL, PL, and PI (MPWSS 02235) In-Place Density (MPWSS 02235/1.3) 95% Minimum In-Place Density (MPWSS 02235) 95% Minimum Table 6 of Geotechnical Report Table 6 of Geotechnical Report 1 Submittal for each material source 1 test/lift/4000 SF 1 Submittal 1 submittal for each material source 1 test/lift/2000 SF 1 test/lift/200 LF 1 test/lift/2000 SF PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this day of , 2020 (“Effective Date”), 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 with a mailing address of , hereinafter referred to as “Consultant.” The City and Consultant may be referred to individually as “Party” and collectively as “Parties.” 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 Consultant to perform for City services described in the Scope of Services attached hereto as “Exhibit A” and by this reference made a part hereof for the Project: [INSERT PROJECT TITLE]. 2. Term/Effective Date: This Agreement is effective upon the date of its execution and will terminate upon satisfactory completion of the agreed Scope of Services, which may be amended from time to time by the mutual agreement of the Parties pursuant to terms of this agreement, as determined by the City. 3. Scope of Services: Consultant 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. Consultant may, at its own risk, use or rely upon design elements and information ordinarily or customarily furnished by others, including, but not limited to, specialty contractors, Sub- consultants, manufacturers, suppliers, and publishers of technical standards. 4. Payment for Scope of Services: City agrees to pay Consultant for the completion of the Scope of Services a lump sum amount of $ , being equal to the Consultant’s Direct Labor Costs times a factor of , which shall cover Direct Labor, the federally audited payroll Direct Labor Overhead, General & Administrative Overhead, and Profit. The Consultant’s Direct Labor Costs in $/hr for its employee classes and a detailed breakdown of personnel hours directly assigned to each task of the Scope of Services is provided herewith as “Attachment 1”. 5. Reimbursable Expenses: As defined in section 8 of this Agreement, for completion of the Scope of Services and approved Additional Services, reimbursable expenses shall be paid to the Consultant by the City in the actual amount of the costs incurred up to an amount not to exceed $ , which includes $ for Sub-consultants hired by the Consultant and $ for all other reimbursable expenses. The estimated reimbursable expenses are provided herewith as “Attachment 2”. The administrative markup factor being applied by the Consultant for any of its Sub-consultants shall be indicated on Attachment 2 and be no higher than 1.05. 6. Additional Services: If the City requests Consultant to perform any Additional Services not otherwise provided for in this Agreement, City shall so instruct the Consultant in writing, and the Consultant shall perform, or direct its Sub-consultants to perform, such services necessary to complete the Additional Services requested. The City and Consultant shall mutually agree upon a basis of payment for the Additional Services requested prior to the Consultant proceeding with such Additional Services. 7. Times of Payments: The Consultant may submit monthly statements for the Scope of Services and approved Additional Services rendered and for Reimbursable Expenses incurred. The statements shall be based upon Consultant’s estimate of the proportion of the total Scope of Services actually completed for each task at the time of billing. 8. Meaning of Terms: a. Additional Services: Additional Services means services resulting from significant changes in the general scope, extent or character of the Project or major changes in documentation previously accepted by the City where changes are due to causes beyond the Consultant’s control. Additional Services can also mean providing other services not otherwise provided for in the Agreement that are substantially similar to and generally consistent with the nature of services contained in the Scope of Services. b. Agreement: As used herein the term “this Agreement” refers to the contents of this document and its Attachments and Exhibits attached hereto and referred to as if they were part of one and the same document. c. Direct Labor Costs: Direct Labor Costs used as a basis for payment mean the actual salaries and wages paid to all of the Consultant’s personnel engaged directly on the Scope of Services but does not included indirect payroll related costs or fringe benefits. d. Reimbursable Expenses: Reimbursable expenses mean the actual expenses incurred by the Consultant or its Sub-consultants directly in connection with the Project, such as expenses for: transportation and subsistence incidental thereto; toll telephone calls; specialized technology or software subscription charges; reproduction of reports, technical memoranda, drawings, renderings and similar Project-related items. e. Sub-consultants: Sub-consultants means any independent professional associates working on the Project that are not directly employed by the Consultant and have rather been hired by the Consultant to serve a particular role or offer a particular service for the Project. 9. Consultant’s Representations: To induce City to enter into this Agreement, Consultant makes the following representations: a. Consultant 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. Consultant represents and warrants to City that it has the experience and ability to perform the services required by this Agreement; that it will perform the 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. 10. Independent Contractor Status/Labor Relations: The parties agree that Consultant is an independent Contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Consultant 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. Consultant is not authorized to represent the City or otherwise bind the City in any dealings between Consultant and any third parties. Consultant shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39, Chapter 71, Montana Code Annotated (MCA), and the Occupational Disease Act of Montana, Title 39, Chapter 71, MCA. Consultant shall maintain workers’ compensation coverage for all members and employees of Consultant’s business, except for those members who are exempted by law. 11. Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the fullest extent permitted by law, Consultant 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 Consultant; or (ii) any negligent, reckless, or intentional misconduct of any of the Consultant’s agents. For the professional services rendered, to the fullest extent permitted by law, Consultant 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 intentional misconduct of the Consultant or Consultant’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 City as indemnitee which would otherwise exist as to such indemnitee(s). Consultant’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. Should the City be required to bring an action against the Consultant to assert its right to defense or indemnification under this Agreement or under the Consultant’s applicable insurance policies required below the City 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 Consultant was obligated to defend the claim(s) or was obligated to indemnify the City 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. Consultant also waives any and all claims and recourse against the City, 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 [City’s] 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, Consultant shall at Consultant’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 Consultant in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Consultant in 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. Consultant 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 shall be endorsed as an additional or named insured on a primary non- contributory basis on both the Commercial General and Automobile Liability policies. The insurance and required endorsements must be in a form suitable to City and shall include no less than a thirty (30) day notice of cancellation or non-renewal. The City must approve all insurance coverage and endorsements prior to the Consultant commencing work. Consultant shall notify City within two (2) business days of Consultant’s receipt of notice that any required insurance coverage will be terminated or Consultant’s decision to terminate any required insurance coverage for any reason. 12. Termination for Consultant’s Fault: a. If Consultant 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 Consultant’s right to proceed with all or any part of the work (“Termination Notice Due to Consultant’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 12, Consultant shall be entitled to payment only for those services Consultant actually rendered. c. Any termination provided for by this Section 12 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 12, Consultant 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. 13. 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, the City may terminate this Agreement by written notice to Consultant (“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 Consultant. b. Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise directed in the Notice, the Consultant 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. Consultant 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 13, Consultant is entitled to payment only for those services Consultant actually rendered on or before the receipt of the Notice of Termination for City’s Convenience. d. The compensation described in Section 13(c) is the sole compensation due to Consultant for its performance of this Agreement. Consultant 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. 14. Limitation on Consultant’s Damages; Time for Asserting Claim: a. In the event of a claim for damages by Consultant under this Agreement, Consultant’s damages shall be limited to contract damages and Consultant 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 Consultant wants to assert a claim for damages of any kind or nature, Consultant 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 Consultant becoming aware of the facts and circumstances giving rise to the claim. In the event Consultant fails to provide such notice, Consultant shall waive all rights to assert such claim. 15. Representatives and Notices: a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be 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, Consultant may direct its communication or submission to other designated City personnel or agents as designated by the City in writing and may receive approvals or authorization from such persons. b. Consultant’s Representative: The Consultant’s Representative for the purpose of this Agreement shall be or such other individual as Consultant shall designate in writing. Whenever direction to or communication with Consultant is required by this Agreement, such direction or communication shall be directed to Consultant’s Representative; provided, however, that in exigent circumstances when Consultant’s Representative is not available, City may direct its direction or communication to other designated Consultant personnel or agents. c. Notices: All notices required by this Agreement shall be in writing and shall be provided to the Representatives named in this Section. Notices shall be deemed given when delivered, if delivered by courier to Party’s address shown above during normal business hours of the recipient; or when sent, if sent by email or fax (with a successful transmission report) to the email address or fax number provided by the Party’s Representative; or on the fifth business day following mailing, if mailed by ordinary mail to the address shown above, postage prepaid. 16. Permits: Consultant 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. 17. Laws and Regulations: Consultant 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. 18. Nondiscrimination and Equal Pay: 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. Contractor represents it is, and for the term of this Agreement will be, in compliance with the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act). Contractor must report to the City any violations of the Montana Equal Pay Act that Contractor has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. Contractor shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. 19. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Consultant 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. Consultant 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 Consultant shall be obligated to furnish such proof. The Consultant shall be responsible for instructing and training the Consultant's employees and agents in proper and specified work methods and procedures. The Consultant shall provide continuous inspection and supervision of the work performed. The Consultant is responsible for instructing its employees and agents in safe work practices. 20. Modification and Assignability: This Agreement may not be enlarged, modified, amended or altered except by written agreement signed by both parties hereto. The Consultant may not subcontract or assign Consultant’s rights, including the right to compensation or duties arising hereunder, without the prior written consent of the City. Any Sub-consultant or assignee will be bound by all of the terms and conditions of this Agreement. 21. Reports/Accountability/Public Information: Consultant agrees to develop and/or provide documentation as requested by the City demonstrating Consultant’s compliance with the requirements of this Agreement. Consultant 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 Consultant pursuant to this Agreement was used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The Consultant shall not issue any statements, releases or information for public dissemination without prior approval of the City. 22. Non-Waiver: A waiver by either party of 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. 23. Attorney’s Fees and Costs: In the event it becomes necessary for either Party to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel including the City Attorney’s Office staff. 24. Taxes: Consultant is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. 25. 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. 26. Survival: Consultant’s indemnification shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 27. 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. 28. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 29. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 30. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 31. 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. 32. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 33. Integration: This Agreement and all Exhibits attached hereto constitute the entire agreement of the parties. Covenants or representations not contained herein 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. 34. Standard of Care: In providing services under this Agreement, Consultant will perform in a manner consistent with the degree of care and skill ordinarily exercised by members of the same profession currently practicing under similar circumstances. If any service should be found to be not in conformance with this standard, the Consultant shall, at the City’s request, re- perform the service at its own expense. Consultant shall also, at its own expense, make such changes, modifications or additions to the project which are made necessary as a result of the initial non-performance or the re-performance of services. The City’s rights herein are in addition to any other remedies the City may have under the law 35. Ownership and Reuse of Documents: Upon payment in full by City to Consultant for all monies due Consultant under this Agreement, Consultant’s work products produced under this Agreement shall become the sole property of the City. The City’s use, reuse, alteration, or modification of the work products will be at City’s sole risk and without liability or legal exposure to Consultant or to its officers, directors, members, partners, agents, employees, and consultants. 36. Consent to Electronic Signatures: The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** In witness whereof, the Parties hereto do make and execute this Agreement. CITY OF BOZEMAN, MONTANA CONSULTANT BY: BY: Jeff Mihelich, City Manager (insert title of signatory) DATE: DATE: ATTEST: BY: Mike Maas, City Clerk APPROVED AS TO FORM: BY: Greg Sullivan, City Attorney Attachment C NONDISCRIMINATION & GENDER PAY AFFIRMATION ____________________________________(name of entity submitting) agrees that all hiring by Respondent of persons performing this Agreement shall be on the basis of merit and qualifications. The Respondent will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Respondent 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 Respondent 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. Respondent represents it is, and for the term of this Agreement will be, in compliance with the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act). Respondent must report to the City any violations of the Montana Equal Pay Act that Respondent has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. Respondent shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. ______________________________________ Name and title of person authorized to sign on behalf of submitter