HomeMy WebLinkAbout20- Professional Services Agreement - Missouri River Contractors, LLC. - Rouse Avenue Downtown Streetscape F�
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PROFESSIONAL SERVICES AGREEMENT
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THIS AGREEMENT is made and entered into this ff day of-'LA4 202 L)
("Effective Date"), by and between the BOZEMAN DOWNTOWN URBAN RENEWAL
DISTRICT, an agency of the City of Bozeman, which is a self-governing municipal corporation
organized and existing under the laws of the state of Montana, a mailing address of 222 E Main St
#302, Bozeman MT 59715, hereinafter referred to as "URD," and. MISSO RI RIVER
CONTRACTORS LLC, 3384 E US Highway 12, Helena MT 59641, hereinafter referred to as
::Contractor."The URD and Contractor 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: URD agrees to enter this Agreement with Contractor to perform for the
services described in the Scope of Services attached hereto as Exhibit A and by this reference made
a part hereof.
2. Term/Effertive Date: This Agreement is effective upon the date of its execution.
3. Scone of Services: Contractor will perform the work and provide the services in
accordance with the requirements of the Scope of Services.For conflicts between this Agreement and
the Scope of Services, unless specifically provided otherwise,the Agreement governs.
4. Paymc_nt: URD agrees to pay Contractor the amount specified in the Scope of
Services. Any alteration or deviation from the described services that involves additional costs above
the Agreement amount will be performed by Contractor after written request by the UPD, and will
become an additional charge over and above the ainount listed in the Scope of Services. The URD
must agree in writing upon any additional charges.
5. Contractor's Representations: To induce URD to enter into this Agreement,
Contractor makes the fallowing representations:
a. Contractor has familiarized itself with the nature and extent of this Agreement, the
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Scope of Services, and with all local conditions and federal, state and Iocal laws, ordinances, rules.
and regulations that in any manner may affect cost, progress or performance of the Scope of Services,
b. Contractor represents and warrants to URD 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 URD will not determine or exercise control as to general procedures or
formats necessary to have these services meet this warranty.
+6. Independent Contractor Status/Labor Relations; The parties agree that Contractor
is an independent contractor for purposes of this Agreement and is not to be considered an employee
of the URD for any purpose. Contractor is not subject to the terms and previsions of the URD's
personnel policies handbook and may not be considered a URD employee for workers' compensation
or any other purpose. Contractor is not authorized to represent the URD or otherwise bind the URD
in any dealings between Contractor and any third parties.
Contractor shall comply with the applicable requirements of the Workers' Compensation Act,
Title 39, Chapter 71, Montana Code Annotated (MCA), and the Occupational Disease Act of
Montana,Title 39,Chapter 71,MCA, Contractor shall maintain workers' compensation coverage for
all members and employees of Contractor's lousiness, except for those members who are exempted
by law.
{Contractor shall furnish the URD with copies showing one of the following: (1) a binder for
workers' compensation coverage by an insurer licensed and authorized to provide workers'
compensation insurance in the State of Montana; or (2) proof of exemption from workers'
compensation granted by law for independent contractors.
Contractor shall post a legible statement of all wages and fringe benefits to be paid to the
Contractor's employees and the frequency of such payments (i.e., hourly wage employees shall be
paid weekly). Such posting shall be made in a prominent and accessible location at the Contractor's
normal place of business and shall be made no later than the first day of services provided under this
Agreement. Such posting shall be removed only upon expiration or termination of this Agreement.
In performing the services under this Agreement, Contractor shall give preference to the
employment of bona fide residents of Montana, as required by §18-2-403, MCA, as such terra is
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defined by §18.2-401(1), MCA. When making assigtnnents of work, Contractor shall use workers
both skilled in their trade and specialized in their field of work for all work to which they are assigned.
Pursuant to §§18-2-443 and 18-2-422, MCA, Contractor shall pay wages,fringe benefits,and
expenses, including travel allowances as set forth in the current Montana Prevailing Wage Rate for
Non Construction Services in effect and applicable to Gallatin County, Montana, which schedule is
incorporated herein. Contractor shall pay all hourly wage employees on a weekly basis. Violation of
the requirements set forth in the above State of Montana schedule of prevailing wage rates may
subject the Contractor to the penalties set forth in§18-2-407,MCA.. Contractor shall maintain payroll
records during the term of this Agreement and for a period of three (3) years following termination
of this Agreement.
The Contractor shall ensure that any person, firm or entity performing any portion of the
services under this Agreement for which the contractor, subcontractor or employer is responsible, is
paid the applicable standard prevailing rate of wages.
In the event that, during the term of this Agreement, any labor problems or disputes of any
type arise or materialize which in turn cause any services to cease for any period of time, Contractor
specifically agrees to take immediate steps. at its own expense and without expectation of
reimbursement from URD, to alleviate or resolve all such labor problems or disputes. The specific
steps Contractor shall take shall be left to the discretion of Contractor, provided, however, that
Contractor shall bear all costs of any relatipd legal action. Contractor shall provide immediate relief
to the URD so as to permit the services to continue at no additional cost to URD.
Contractor shall indemnify, defend, and hold the URD harmless from any and all claims,
demands, costs, expenses, damages, and liabilities arising out of resulting from, or occurring in
connection with any labor problems or disputes or any delays or stoppages of work associated with
such problems or disputes and for any claims regarding underpaid prevailing wages.
7. IndemnitylWaiver of Clai7msfInsurance: For other than professional services
rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and
hold harmless the URD, its agents, representatives, employees, and officers (collectively referred to
for purposes of this Section as the URD) 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 URD occasioned by,growing or arising out of or resulting from or
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in any way related to: (i) the negligent, reckless, or intentional misconduct of the Contractor; or(ii)
any negligent, reckless, or intentional misconduct of any of the Contractor's agents.
For the professional services rendered, to the fullest extent permitted by law, Contractor
agrees to indemnify and hold the URD 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 Contractor or Contractor's agents or employees.
Such obligations shall not be construed to negate,abridge,or reduce other rights or obligations
of indemnity that would otherwise exist.The indemnification obligations of this Section must not be
construed to negate, abridge, or reduce any common-law or statutory rights of the URD as
indemnitee(s) which would otherwise exist as to such indemnitee(s).
Contractor's indemnity under this Section shall be without regard to and without any right to
contribution from any insurance maintained by URD.
Should the URD 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 URD shall �e 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 URD for a claim(s) or any portion(s)thereof.
In the event of an action filed against the URD resulting from the URD's performance under
this Agreement, the URD may elect to represent itself and incur all costs and expenses of suit.
Contractor also waives any and all claims and recourse against the URD, 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 [URD's]
own fraud, for willful injury to the person or property of another, or for violation of law, whether
willfiil or negligent"as per 28-2-702, MCA.
These obligations shall survive termination of this Agreement and the services performed
hereunder.
In addition to and independent from the above,Contractor shall at Contractor's expense secure
insurance coverage through an insurance company or companies duly licensed and authorized to
conduct insurance business in Montana which insures the liabilities and obligations specifically
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assumed by the Contractor in this Section. The insurance coverage shall not contain any exclusion
for liabilities specifically assumed by the Contractor 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 URD without
limit and without regard to the cause therefore and which is acceptable to the URD. Contractor shall
furnish to the URD 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 atunual 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 URD 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 URD and shall include no less than a thirty(30)day notice of cancellation or non-renewal.
Contractor shall notify URD within two (?) 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 URD roust approve all insurance coverage and endorsements prior to the
Contractor commencing work.
8. Termination for Contractor's Fault:
a. If Contractor refuses or fails to timely do the work, or any part thereof, or fails
to perform any of its obligations under this Agreement, or otherwise breaches any terms or
conditions of this Agreement, the URD 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 URD may then take over the work and complete it, either with
its awn resources or by re-letting the contract to any other third party.
b. In the event of a termination pursuant to this Section 8, Contractor shall be
entitled to payment only for those services Contractor actually rendered.
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C. Any termination provided for by this Section 8 shall be in addition to any other
remedies to which the URD may be entitled under the law or at equity.
d. In the event of termination under this Section 8, Contractor shall, under no
circumstances, be entitled to clairrl or recover consequential, special, punitive, lost business
opportunity, last productivity, field office overhead, general conditions costs, or lost profits
damages of any nature arising,or claimed to have arisen, as a result of the termination.
9. Termination for URD's Convenience:
a. Should conditions arise which, in the sole opinion and discretion of the URD,
make it advisable to the URD to cease performance under this Agreement, the URD may
terminate this Agreement by written notice to Contractor("Notice of Termination for URD's
Convenience"). The termination shall be effective in the manner specified in the Notice of
Termination for URD's Convenience and shall be without prejudice to any claims that the
URD may otherwise have against Contractor.
b. Upon receipt of the Notice of Termination for URD's Convenience, unless
otherwise directed in the Notice, the Contractor shall immediately cease performance under
this Agreement and make every reasonable effort to refrain from continuing work, incurring
additional expenses or costs under this Agreement and shall immediately cancel all existing
orders or contracts upon terms satisfactory to the URD. Contractor shall do only such wort:
as may be necessary to preserve, protect, and maintain work already completed or
immediately in progress.
C. In the event of a termination pursuant to this Section 9, Contractor, is entitled
to payment only for those services Contractor actually rendered on or before the receipt of the
Notice of Termination for URD's Convenience.
d. The compensation described in Section 9(c) is the sole compensation due to
Contractor for its performance of this Agreement. Contractor shall, under no circumstances,
be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost
productivity, field office overhead, general conditions costs, or last profits damages of any
nature arising, or claimed to have arisen, as a result of the termination.
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10. Limitation on Contractor's Damages, Time for Asserting{Claim:
a. In the event of a claim for damages by Contractor under this Agreement,
Contractor's damages shall be limited to contract damages and Contractor hereby expressly
waives any right to claim or recover consequential, special, punitive, lost business
opportunity, lost productivity, field office overhead, general conditions costs, or lost profits
damages of any nature or hind.
b. In the event Contractor wants to assert a claim for damages of any kind or
nature, Contractor shall provide URD with written notice of its claim, the facts and
circumstances surrounding and giving rise to the claim, and the total amount of damages
sought by the claim, within thirty (30) days of the facts and circumstances giving rise to the
claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights
to assert such claim.
11. Representatives and Notices:
a. URD's Representative: The URD's Representative for the purpose of this
Agreement shall be CHRIS NAUMANN or such other individual as URD shall designate in
writing. Whenever approval or authorization from or communication or submission to URD
is required by this Agreement, such communication or submission shall be directed to the
URD's Representative and approvals or authorizations shall be issued only by such
Representative: provided, however, that in exigent circumstances when URD's
Representative is not available, Contractor may direct its communication or submission to
other designated URD personnel or agents as designated by the URD in writing 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 NICK MILLER 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, URD may direct its direction or communication to other
designated Contractor 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
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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 mailipg, if mailed by ordinary mail to the address shown above,
postage prepaid.
12. Permits. Contractor shall provide all notices, comply with all applicable laws,
ordinances,rules,and regulations,obtain all necessary permits,licenses,including a City of Bozeman
business license, and inspections from applicable governmental authorities, and pay all fees and
charges in connection therewith.
13 Laws and Regulations: Contractor shall comply fully with all applicable state and
federal laws, regulations, and municipal ordinances including, but not limited to, all workers'
compensation laws, all environmental laws including, but not limited to, the generation and disposal
of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and
provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, Comity, and
State building and electrical codes, the Arliericans with Disabilities Act, and all non-discrimination,
affirmative action, and utilization of minority and small business statutes and regulations.
14. Nondiscrimination and E ual 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 sea 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 URD 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.
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15. Intoxicants; DOT Drug and Alcohol Rezulations/Safety and Training: Contractor
shall not permit or suffer the introduction or use of any intoxicants,including alcohol or illegal drugs,
by any employee or agent engaged in services to the URD under this Agreement while on URD
property or in the performance of any activities Linder this Agreement. Contractor acknowledges it is
aware of and shall comply with its responsibilities and obligations under the U.S. Department of
Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and
related testing. URD shall have the right to request proof of such compliance and Contractor shall be
obligated to furnish such proof
The Contractor shall be responsible for instructing and training the Contractor's employees
and agents in proper and specified work methods and procedures. The Contractor shall provide
continuous inspection and supervision of the work performed. The Contractor is responsible for
instructing its employees and agents in safe work practices.
16. Modification and Ass mhili : This Agreement may not be enlarged, modified or
altered except by written agreement signed by bath parties hereto. The Contractor may not
subcontract or assign Contractor's rights, including the right to compensation or duties arising
hereunder,without the prior written consent of the URD. Any subcontractor or assignee will be bound
by all of the terms and conditions of this Agreement.
17. Reports/Accountability/Public Information: Contractor agrees to develop and/or
provide documentation as requested by the URD demonstrating Contractor's compliance with the
requirements of this Agreement. Contractor shall allow the URD, its auditors, and other persons
authorized by the URD to inspect and copy its books and records for the purpose of verifying that the
reimbursement of monies distributed to Contractor pursuant to this Agreement was used in
compliance with this Agreement and all applicable provisions of federal, state, and local law. The
Contractor shall not issue any statements, releases or information for public dissemination without
prior approval of the URD.
18. 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 lit-nit the other party's right to enforce such term
or conditions or to pursue any available legal or equitable rights in the event of any subsequent default
or breach.
19. Attorney's Fees and Costs: 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
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attorney's fees and oasts, including fees, salary, and casts of in-house counsel including the URD
Attorney's Office star.
20. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all
appropriate employee withholdings.
21. Dispute Resolution:
a. Any claim, controversy, or dispute between the parties, their agents,
employees, or representatives shall be resolved first by negotiation between senior-level
personnel from each party duly authorized to execute settlement agreements. Upon mutual
agreement of the parties,the parties may invite an independent,disinterested mediator to assist
in the negotiated settlement discussions.
b. If the parties are unable to resolve the dispute within thirty (30) days from the
date the dispute was first raised, then such dispute may only be resolved in a court of
competent jurisdiction in compliance with the Applicable Law provisions of this Agreement.
22. Sun ival: Contractor's indemnification shall survive the termination or expiration of
this Agreement for the maximum period allowed under applicable law.
23. Headinngs: The headings used in this Agreement are for convenience only and are not
be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to
which they refer.
24. Severability: If any portion of this Agreement is held to be void or unenforceable,the
balance thereof shall continue in effect.
25. Applicable Law: The parties agree that this Agreement is governed in all respects by
the laws of the State of Montana.
26, Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs,
legal representatives, successors, and assigns of the parties.
27. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the
parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or
enforced by a third party.
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28, Counterparts: This Agreement may executed in counterparts, which together
constitute one instrument.
29. Integration: This Agreement and all Exhibits attached hereto constitute the entire
agreement of the parties. Covenants or representations not contained 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.
30. 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.
31. Extensions: this Agreement may,upon mutual agreement,be extended fora period
of one year by written agreement of the Parties.
****END OF AGREEMENT EXCEPT FOR SIGNATURES ****
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year first above written or as recorded in an electronic signature.
CITY OF BOZEMAN,MONTANA MISSOURI RIVER CONTRACTORS LLC
DOWNTOWN URD CONTRACTOR
By By
Chris Naumann,Executive Director �
Print Name: / /lLlC ,7, �lCGft
/� Print Title:
APP VED AS FORM:
By
Bozeman City Attorney
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M7Z Missouri River Contractors LLC
3384 E U5 Highway 12
MISSOURI RIVER Helena, I IT 59601
CONTRACTORS Office (406)443-2S24
To: Downtown Bozeman Partnership Contact:
Address: 222 E.Main Street, #302 Phone: 406-568-4008
Bozeman,MT 59715 UNITED STATES Fax:
Project Name: Rouse Ave.Electrical And Concrete Improvements Bid Number:
Project Location: weld Date:
item 4 item Description Estimated Quantity Unit Unit Price Total Price
I Mobilization 1.00 LS $3,449,65 $3,449,65
2 Conduit-Plastic 2"With#14 Locate Wire 1,000.N LF $12,65 $12,650,00
3 Condul-Plastic 3"With#14 Locate Wire 140.00 LF $14,099 $1,972.60
4 Pull Box-Composite Type 1 4.0 EACH $672.75 $2,691.00
5 Concrete Tooling 1,540.00 SF $1.75 $2,695.00
Total Bid Price: $23,458.25
Notes:
"EXCLUSIONS"
-Surveying
ACCEPTED: CONFIRMED:
The above prices,specifications and conditions are satisfactory Missouri River Contractors
and hereby accepted.
1G/C ,Tr
Buyer: Ch ' Nau ann, Downtown URD
Signature: Authorized Signature:
Date of Accep nce: 717120 Estimator:
6129/2020 11:54:09 AM Page i of i
D'W t water V atric, Inc. 11A ato tion
155 Round Stone Drive Kalispell, MT 59901 3/23/2020
406-257-3817
f r"ect Reuse 5treetscape
�rzglYs yn:
d'trj Nscri rtiusx Uptit Gast IroW
1.00 ivlobiLotion 3,000,00 3,000.00
1,000.00 Conduit-Plastic T with#14 locate wire 11.00 11,000.00
140.00 Condull-Plastic 3"with#14 locate wire 12.25 1,715.00
4.00 Pull Box-Composite Type 1 565.00 2,340.00
Exclusions:Surveying
Banding is an additiond 2.5%,
$18,C)55m