HomeMy WebLinkAbout11-24-20 City Commission Packet Materials - C4. PSA w Cityworks Support w GIS Inc Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Zac Collins, Asset Systems Program Manager Jon Henderson, Strategic Services Director
SUBJECT: Professional Services Agreement for Cityworks Support with GIS
Inc. MEETING DATE: November 24, 2020
MEETING TYPE Consent
RECOMMENDATION: Approve Professional Services Agreement for Cityworks Support with GIS Inc.
BACKGROUND: On August 3, 2020 the City Commission approved a Cityworks License and Maintenance Agreement Renewal for the City’s Work Order Management platform. Since 2008, Cityworks has provided a system for recording all time, materials, and equipment associated with 11 Divisions and a total of 117 users throughout the organization. On June 15, 2020 the City
Commission approved an Agreement with the Avolve Software Corporation to expand the City’s electronic development review system to streamline the overall process across multiple Divisions involved in the current workflow. The attached Professional Services Agreement and Support Quote will provide a vehicle for
accessing support necessary to successfully implement and integrate Avolve with our existing Cityworks Permits, Land, and Licensing (PLL) environment. This agreement has been reviewed by the Legal Department and found to be acceptable in meeting the City’s specifications and standards.
UNRESOLVED ISSUES: None. FISCAL EFFECTS: $20,000 is currently allocated for this work within the FY21 approved budget for the GIS Division of the Strategic Services Department. ALTERNATIVES: As suggested by the City Commission.
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Report Compiled on: 11/13/2020
Attachments:
Professional Services Agreement - GIS Inc Exhibit A - GIS Inc Remote Support Quote
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Professional Services Agreement for Cityworks Support with GIS Inc. FY 2020 – FY 2021
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PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this 24th day of November, 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 GIS Inc., hereinafter referred to as “Contractor.” The City 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: City agrees to enter this Agreement with Contractor to perform for City
services described in the Scope of Services attached hereto as Exhibit A and by this reference made
a part hereof.
2. Term/Effective Date: This Agreement is effective upon the Effective Date and will
expire on the 30th day of June, 2021, unless earlier terminated in accordance with this Agreement.
3. Scope of Services: Contractor will perform the work and provide the services in
accordance with the requirements of the Scope of Services. For conflicts between this Agreement and
the Scope of Services, unless specifically provided otherwise, the Agreement governs.
4. Payment: City agrees to pay Contractor the amount specified in the Scope of
Services. Any alteration or deviation from the described services that involves additional costs above
the Agreement amount will be performed by Contractor after written request by the City, and will
become an additional charge over and above the amount listed in the Scope of Services. The City
must agree in writing upon any additional charges.
5. Contractor’s Representations: To induce City to enter into this Agreement,
Contractor makes the following representations:
a. Contractor has familiarized itself with the nature and extent of this Agreement, the
Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules,
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and regulations that in any manner may affect cost, progress or performance of the Scope of Services.
b. Contractor represents and warrants to City that it has the experience and ability to
perform the services required by this Agreement; that it will perform 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.
6. Independent Contractor Status/Labor Relations: The parties agree that Contractor
is an independent contractor for purposes of this Agreement and is not to be considered an employee
of the City for any purpose. Contractor is not subject to the terms and provisions of the City’s
personnel policies handbook and may not be considered a City employee for workers’ compensation
or any other purpose. Contractor is not authorized to represent the City or otherwise bind the City in
any dealings between Contractor and any third parties.
Contractor shall comply with the applicable requirements of the Workers’ Compensation Act,
Title 39, Chapter 71, 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 business, except for those members who are exempted
by law.
Contractor shall furnish the City with copies showing one of the following: (1) a binder for
workers’ compensation coverage by an insurer licensed and authorized to provide workers’
compensation insurance in the State of Montana; or (2) proof of exemption from workers’
compensation granted by law for independent contractors.
In the event that, during the term of this Agreement, any labor problems or disputes of any
type arise or materialize which in turn cause any services to cease for any period of time, Contractor
specifically agrees to take immediate steps, at its own expense and without expectation of
reimbursement from City, to alleviate or resolve all such labor problems or disputes. The specific
steps Contractor shall take shall be left to the discretion of Contractor; provided, however, that
Contractor shall bear all costs of any related legal action. Contractor shall provide immediate relief
to the City so as to permit the services to continue at no additional cost to City.
Contractor shall indemnify, defend, and hold the City harmless from any and all claims,
demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in
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connection with any labor problems or disputes or any delays or stoppages of work associated with
such problems or disputes.
7. Indemnity/Waiver of Claims/Insurance: For other than professional services
rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and
hold harmless the City, its agents, representatives, employees, and officers (collectively referred to
for purposes of this Section as the City) from and against any and all claims, demands, actions, fees
and costs (including attorney’s fees and the costs and fees of expert witness and consultants), losses,
expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or
damages of whatever kind or nature connected therewith and without limit and without regard to the
cause or causes thereof or the negligence of any party or parties that may be asserted against,
recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or
in any way related to: (i) the negligent, reckless, or intentional misconduct of the Contractor; or (ii)
any negligent, reckless, or intentional misconduct of any of the Contractor’s agents.
For the professional services rendered, to the fullest extent permitted by law, Contractor
agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and
expenses, including reasonable defense attorney fees, to the extent caused by the negligence or
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 City 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 City.
Should the City 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 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 Contractor 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 the 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.
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Contractor 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, Contractor shall at Contractor’s expense secure
insurance coverage through an insurance company or companies duly licensed and authorized to
conduct insurance business in Montana which insures the liabilities and obligations specifically
assumed by the Contractor in this Section. The insurance coverage shall not contain any exclusion
for liabilities specifically assumed by the Contractor in 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. Contractor shall
furnish to the City an accompanying certificate of insurance and accompanying endorsements in
amounts not less than as follows:
• Workers’ Compensation – statutory;
• Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate;
• Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual
aggregate;
• Automobile Liability - $1,000,000 property damage/bodily injury per accident; and
• Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate.
The above amounts shall be exclusive of defense costs. The City 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.
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.
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8. Termination for Contractor’s Fault:
a. If Contractor refuses or fails to timely do the work, or any part thereof, or fails
to perform any of its obligations under this Agreement, or otherwise breaches any terms or
conditions of this Agreement, the City may, by written notice, terminate this Agreement and
the Contractor’s right to proceed with all or any part of the work (“Termination Notice Due
to Contractor’s Fault”). The City may then take over the work and complete it, either with its
own resources or by re-letting the contract to any other third party.
b. In the event of a termination pursuant to this Section 8, Contractor shall be
entitled to payment only for those services Contractor actually rendered.
c. Any termination provided for by this Section 8 shall be in addition to any other
remedies to which the City may be entitled under the law or at equity.
d. In the event of termination under this Section 8, Contractor shall, under no
circumstances, be entitled to claim or recover consequential, special, punitive, lost business
opportunity, lost productivity, field office overhead, general conditions costs, or lost profits
damages of any nature arising, or claimed to have arisen, as a result of the termination.
9. Termination for City’s Convenience:
a. Should conditions arise which, in the sole opinion and discretion of the City,
make it advisable to the City to cease performance under this Agreement, the City may
terminate this Agreement by written notice to Contractor (“Notice of Termination for City’s
Convenience”). The termination shall be effective in the manner specified in the Notice of
Termination for City’s Convenience and shall be without prejudice to any claims that the City
may otherwise have against Contractor.
b. Upon receipt of the Notice of Termination for City’s Convenience, unless
otherwise directed in the Notice, the Contractor shall immediately cease performance under
this Agreement and make every reasonable effort to refrain from continuing work, incurring
additional expenses or costs under this Agreement and shall immediately cancel all existing
orders or contracts upon terms satisfactory to the City. Contractor shall do only such work as
may be necessary to preserve, protect, and maintain work already completed or immediately
in progress.
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c. In the event of a termination pursuant to this Section 9, Contractor is entitled
to payment only for those services Contractor actually rendered on or before the receipt of the
Notice of Termination for City’s Convenience.
d. The compensation described in Section 9(c) is the sole compensation due to
Contractor for its performance of this Agreement. Contractor shall, under no circumstances,
be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost
productivity, field office overhead, general conditions costs, or lost profits damages of any
nature arising, or claimed to have arisen, as a result of the termination.
10. Limitation on Contractor’s Damages; Time for Asserting Claim:
a. In the event of a claim for damages by Contractor under this Agreement,
Contractor’s damages shall be limited to contract damages and Contractor hereby expressly
waives any right to claim or recover consequential, special, punitive, lost business
opportunity, lost productivity, field office overhead, general conditions costs, or lost profits
damages of any nature or kind.
b. In the event Contractor wants to assert a claim for damages of any kind or
nature, Contractor shall provide City with written notice of its claim, the facts and
circumstances surrounding and giving rise to the claim, and the total amount of damages
sought by the claim, within thirty (30) days of the facts and circumstances giving rise to the
claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights
to assert such claim.
11. Representatives and Notices:
a. City’s Representative: The City’s Representative for the purpose of this
Agreement shall be Zac Collins, Asset Systems 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 circumstances when City’s
Representative is not available, Contractor 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. Contractor’s Representative: The Contractor’s Representative for the
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purpose of this Agreement shall be Dawn Siegel 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.
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.
12. Permits: Contractor shall provide all notices, comply with all applicable laws,
ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman
business license, and inspections from applicable governmental authorities, and pay all fees and
charges in connection therewith.
13 Laws and Regulations: Contractor shall comply fully with all applicable state and
federal laws, regulations, and municipal ordinances including, but not limited to, all workers’
compensation laws, all environmental laws including, but not limited to, the generation and disposal
of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and
provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and
State building and electrical codes, the Americans with Disabilities Act, and all non-discrimination,
affirmative action, and utilization of minority and small business statutes and regulations.
14. Nondiscrimination 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
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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.
15. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor
shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs,
by any employee or agent engaged in services to the City under this Agreement while on City property
or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of
and shall comply with its responsibilities and obligations under the U.S. Department of Transportation
(DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City
shall have the right to request proof of such compliance and Contractor shall be obligated to furnish
such proof.
The Contractor shall be responsible for instructing and training the Contractor's employees
and agents in proper and specified work methods and procedures. The Contractor shall provide
continuous inspection and supervision of the work performed. The Contractor is responsible for
instructing its employees and agents in safe work practices.
16. Modification and Assignability: This Agreement may not be enlarged, modified or
altered except by written agreement signed by both parties hereto. The Contractor may not
subcontract or assign Contractor’s rights, including the right to compensation or duties arising
hereunder, without the prior written consent of the City. Any subcontractor or assignee will be bound
by all of the terms and conditions of this Agreement.
17. Reports/Accountability/Public Information: Contractor agrees to develop and/or
provide documentation as requested by the City demonstrating Contractor’s compliance with the
requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons
authorized by the City to inspect and copy its books and records for the purpose of verifying that the
reimbursement of monies distributed to Contractor pursuant to this Agreement was used in
compliance with this Agreement and all applicable provisions of federal, state, and local law. The
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Contractor shall not issue any statements, releases or information for public dissemination without
prior approval of the City.
18. Non-Waiver: A waiver by either party 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.
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
attorney's fees and costs, including fees, salary, and costs of in-house counsel including the City
Attorney’s Office staff.
20. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all
appropriate employee withholdings.
21. Dispute Resolution:
a. Any claim, controversy, or dispute between the parties, their agents,
employees, or representatives shall be resolved first by negotiation between senior-level
personnel from each party duly authorized to execute settlement agreements. Upon mutual
agreement of the parties, the parties may invite an independent, disinterested mediator to assist
in the negotiated settlement discussions.
b. If the parties are unable to resolve the dispute within thirty (30) days from the
date the dispute was first raised, then such dispute may only be resolved in a court of
competent jurisdiction in compliance with the Applicable Law provisions of this Agreement.
22. Survival: Contractor’s indemnification shall survive the termination or expiration of
this Agreement for the maximum period allowed under applicable law.
23. Headings: The headings used in this Agreement are for convenience only and are not
be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to
which they refer.
24. Severability: If any portion of this Agreement is held to be void or unenforceable, the
balance thereof shall continue in effect.
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25. Applicable Law: The parties agree that this Agreement is governed in all respects by
the laws of the State of Montana.
26. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs,
legal representatives, successors, and assigns of the parties.
27. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the
parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or
enforced by a third party.
28. Counterparts: This Agreement may be executed in counterparts, which together
constitute one instrument.
29. Integration: This Agreement and all Exhibits attached hereto constitute the entire
agreement of the parties. Covenants or representations not contained 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.
**** END OF AGREEMENT EXCEPT FOR SIGNATURES ****
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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 ____________________________________
CONTRACTOR (Type Name Above)
By________________________________ By__________________________________
Jeff Mihelich, City Manager
Print Name: ___________________________
Print Title: ____________________________
APPROVED AS TO FORM:
By_______________________________
Greg Sullivan, Bozeman City Attorney
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City of Bozeman, MT: GIS Support Block – Pay As You Go | www.gisinc.com | 1
October 12, 2020
Zac Collins
Asset Systems Program Manager
City of Bozeman, MT
20 E. Olive St
PO Box 1230
Bozeman, Montana 59771-1230
Dear Zac,
Thank you for your interest in our GIS Support Block. Included in the following pages are GISinc’s labor
categories and labor rates.
GIS Support Blocks will provide a vehicle for accessing GIS support/Cityworks support on-demand to
City of Bozeman, MT. I hope you find this information helpful. If I can provide further assistance, please
do not hesitate to contact me.
Thank you again for your interest. We look forward to working with you.
Sincerely,
Dawn N. Siegel
Director of Sales
Geographic Information Services, Inc.
2100 Riverchase Center, Suite 105 | Birmingham, AL 35244
p: (205) 725-5831 | c: (248) 343-1024 | e: dawn.siegel@gisinc.com
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City of Bozeman, MT: GIS Support Block – Pay As You Go | www.gisinc.com | 2
I.GIS Support Blocks
GIS Support Blocks provide a vehicle for accessing GIS support on-demand. Once a GIS Support Block is
put in place, GISinc will provide professional services to assist City of Bozeman, MT with GIS support. All
services provided as part of the GIS Support Blocks will be conducted by the most effective and cost-
efficient method, including: virtually through remote network access, telephone conference calls, Internet
(WebEx) demonstrations, or on-site consultants.
How do GIS Support Blocks work?
Once the GIS Support Block vehicle is in place, GISinc will provide City of Bozeman, MT with a single point
of contact. GISinc will identify the support tasks and establish a communication plan for coordinating the
activities of the task as well as status reporting. We will match the support task with the correct GISinc
resource and their corresponding labor category.
If a support task becomes large, GISinc may require using a management team. This function includes
people, processes, and technology that are designed to make sure that City of Bozeman, MT receives
outstanding value. Milestones and completion dates will be established for the Planning and Analysis,
Client review, Design, Client review, Development, Testing, and Installation/Implementation phases of a
large task or project. There are many tasks and risks that have the potential to derail a project. To manage
this effort, larger tasks or projects that we execute are assigned a Project Coordinator or Technical
Architect from GISinc.
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City of Bozeman, MT: GIS Support Block – Pay As You Go | www.gisinc.com | 3
II. Pricing & Acceptance
GISinc is proposing our time and materials Support Block with a not-to-exceed price of $20,000. We
have provided our Commercial List rates below:
Category Commercial Block Rate
Staff Geospatial Analyst $123.05
Sr. Geospatial Analyst $159.60
Staff Solutions Engineer $162.75
Sr. Solutions Engineer $201.40
Staff Geospatial Developer $154.50
Sr. Geospatial Developer $199.50
Technical Architect $206.85
Sr. Technical Architect $256.15
You may indicate your acceptance of the above proposal with a signature from authorized
personnel from City of Bozeman, MT.
City of Bozeman, MT
Support Block Amount (Not to Exceed):
Signature:
Name:
Title:
Date:
Quotation Terms and Conditions
This confidential quotation is valid for thirty (30) days unless otherwise stated and does not include shipping or tax
unless otherwise stated. This contract will expire one year after signature. This quotation information is proprietary
and may not be copied or released other than for the express purpose of system and service selection and
purchase. This information may not be given to outside parties or used for any other purpose without written consent
from Geographic Information Services, Inc. (GISinc).
Time and Materials Payment Terms: Client will be billed monthly for all travel expenses and labor costs based on
hours worked. Client agrees to NET 30 terms after receipt of invoice on this GIS support block. Supporting details
will be provided in the monthly status report to detail the hours, rates, and deliverable(s) performed during the
preceding month.
$20,000
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Version 1.0 08Jan2019
Standard Terms and Conditions
These standard terms and conditions (“Terms and Conditions”) apply to any proposal, quotation and the resultant
agreement relating to products and services sold by Geographic Information Services, Inc (“GISinc”) to a customer
(“Customer”). These Terms and Conditions, together with the proposal, quotation and contract, including any statement
of work, herein SOW, shall constitute the entire agreement (“Agreement”) between the parties.
These Terms and Conditions are governed by the terms of the applicable License Agreement for any incorporated
software (“License Agreement”). Capitalized terms used and not otherwise defined herein shall have the respective
meaning set forth in the License Agreement.
1.GENERAL PROVISIONS.
This proposal including the SOW and all Terms and
Conditions set forth herein, constitutes the entire
agreement between GISinc and Customer. The Terms
and Conditions of the proposal shall govern and
control the terms of any purchase order or purchase
confirmation form from the Customer. Customer
acknowledges that GISinc has not authorized any of its
sales agents or representatives to make any
representations, warranties or agreements on behalf of,
or to bind GISinc in any way. This confidential proposal
is valid for thirty (30) days and unless otherwise stated.
2.SCOPE OF SERVICES.
During the term of the Agreement, GISinc shall furnish
the services in accordance with the SOW set forth in
the proposal.
3.WORK PERFORMANCE.
GISinc agrees that all work performed hereunder shall
be performed on a best effort basis by GISinc’s staff
having an appropriate experience and skill level, and
in compliance with the SOW.
4.TAXES.
Unless this Agreement specifies otherwise, the price
included in the proposal does not include, and
Customer is liable for and shall pay, all taxes,
impositions, charges, and exactions imposed on or
measured by this Agreement. Prices shall not include
any taxes, impositions, charges, or exactions for which
Customer has furnished a valid exemption certificate or
evidence of exemption.
5.CHANGES.
No changes, modification, amendment shall be
binding upon GISinc unless otherwise agreed to in
writing. Customer’s authorized representative may in
writing, direct changes within the general scope of the
Agreement. If such change increases or decreases the
cost or time required to perform this Agreement,
Customer and GISinc shall negotiate an equitable
adjustment in the price and schedule to reflect the
appropriate change. GISinc shall adjust the proposal to
reflect the change. Customer shall modify any purchase
order or confirmation form and reissue to GISinc accordingly.
6.INVOICE AND PAYMENT.
Customer shall pay GISinc within thirty (30) days after
receipt of invoice or as per the terms indicated in the
proposal. GISinc will bill Customer monthly for all travel
expenses and labor costs based on hours worked.
7. CANCELLATION.
Customer shall provide thirty (30) days written notice to
GISinc prior to canceling an order. Customer will
compensate GISinc for all authorized services
satisfactorily performed through the cancellation date
under the payment terms in section 6 of these Terms
and Conditions.
8. ASSIGNMENT.
Neither party shall assign any of its rights or interest in
this Agreement or subcontract all or substantially all of
its performance of this Agreement without the other
party’s prior written consent.
9.INDEMNITY.
The parties shall indemnify and hold harmless the other,
its officers and employees from and against damages,
claims liabilities, fines, penalties and expenses (to
include reasonable attorney’s fees) due to its negligent
acts, willful misconduct, errors or omissions of any GISinc
employee during the performance of its obligations
hereunder that arise out of (1) injuries or death to
persons or damage to property, (2) services and/or
deliverables agreed to under this order (3) violation of
any federal, state, county or municipal laws. GISinc’s
total liability to Customer for any reason shall not
exceed the total amount paid to GISinc by Customer
for the services provided under this Agreement.
GISinc’s duty to defend and hold harmless Customer
shall not apply to any liability claim for damages or
injuries arising from or as a result of the negligence of
Customer or employees / agents of Customer.
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GISinc shall have no liability for any claim of
infringement to the extent based on (1) the use of a
superseded or altered version of any GISinc provided
product or framework or (2) the combination,
operation or use of the GISinc provided product with
software, hardware or other materials not furnished or
authorized to be used by GISinc.
To the extent permitted by law, in no event shall either
party be liable to the other for any lost revenues, lost
profits, incidental, indirect, consequential, special or
punitive damages of any kind.
10. WARRANTY.
GISinc warrants that it will perform the services in good
faith and in conformance with professional industry
standards. All GISinc employees, that work on the
project, shall have the knowledge, education, training,
skills and experience of the subject matter to which
they will be performing services.
GISinc warrants the completed application against
bugs and defects for a period of 30 days after
acceptance. Ongoing support, functional
enhancements, or performance issues caused by a
change in the customer’s IT environment are not
included in the warranty. Coverage for these items will
require a separate agreement.
11.LIMITATION OF LIABILITY.
NOTWITHSTANDING ANY OTHER PROVISION HEREOF,
GISINC SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL,
SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR
EXEMPLARY LOSS, DAMAGE, COST OR EXPENSE
(INCLUDING, WITHOUT LIMITATION, LOST PROFITS AND
OPPORTUNITY COSTS), EVEN IF THE CUSTOMER HAS BEEN
ADVISED, OR SHOULD HAVE KNOWN OF THE POSSIBILITY
OF SUCH DAMAGES. GISINC’S AGGREGATE LIABILITY
FOR DAMAGES ARISING OUT OF, RELATING TO OR IN
ANY WAY CONNECTED WITH THE RELATIONSHIP OF THE
PARTIES, THIS AGREEMENT, ITS NEGOTIATION OR
TERMINATION, OR PURSUANT TO ANY SOW (WHETHER IN
CONTRACT OR TORT) SHALL IN NO EVENT EXCEED THE
AMOUNT OF FEES RECEIVED BY GISINC FROM
CUSTOMER PURSUANT TO THE APPLICABLE SOW UNDER
WHICH THE ALLEGED LIABILITY AROSE.
12.FORCE MAJEURE.
Neither party will be liable to the other for delays in
performing any obligations under the Agreement due
to circumstances beyond its reasonable control,
including but not limited to revolts, insurrections, riots,
wars, acts of enemies, national emergency, strikes,
floods, earthquake, embargo, inability to secure
materials or transportation, and acts of God, and other
events beyond the reasonable control of the parties
caused by nature or governmental authorities.
13.SERVERABILITY.
If any provision of the Agreement is found to be invalid,
illegal or unenforceable, then, notwithstanding such
invalidity, illegality or unenforceability, the Agreement
and the remaining provisions shall continue in full force
and effect. In this event the parties will agree upon a
valid, binding and enforceable substitute provision
which shall be as close as possible to the commercial
interests of the invalid or unenforceable provision.
14.GENERAL SERVICES ADMINISTRATION SCHEDULE
As indicated in the proposal, if applicable, this
Agreement incorporates and shall be governed by the
terms of a General Services Administration (“GSA”)
Schedule entered by GISinc and the United States
Government. GISinc’s GSA Schedule number: GS-35F-
0682R.
15.GOVERNING LAW.
This Agreement and any disputes arising out of, or
relating to, this Agreement shall be governed by the
laws of the State of Alabama without regard to the
conflict of law rules thereof, provided that (i) contract
provisions that have been incorporated directly from or
by express reference to the Federal Acquisition
Regulations (“FAR”), FAR supplements or GSA schedule
terms, (ii) contract provisions that have been flowed
down from a contract with the U.S. Government, and
(iii)the Changes and Termination for Convenience
articles, shall be construed and interpreted according
to the federal common law of government contracts,
as enunciated and applied by federal judicial bodies,
boards of contract appeals, and quasi-judicial
agencies of the federal government.
16.DISPUTE RESOLUTION.
Customer and GISinc shall endeavor to resolve any
controversy, claim or dispute arising out of or relating to
the Agreement, or the performance or breach thereof,
by negotiation. Any claim that is not resolved by
negotiation within thirty (30) days of notification shall be
settled by arbitration administered by the American
Arbitration Association under its Commercial Arbitration
Rules, and judgment on the award rendered by the
arbitrator(s) may be entered in any court having
jurisdiction thereof. The hearing locale will be held in
the AAA office closest to GISinc corporate
headquarters.
17.OTHER.
This Agreement shall be governed by and constructed
in accordance with the laws of the State of Alabama
without regard to conflicts of laws provisions thereof.
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Both GISinc and Customer will comply with all laws
applicable to the Agreement.
All notices given under the Agreement will be effective
wen received in writing. Notices to the Customer and
GISinc will be sent to the address provided in the
proposal.
Changes to the Agreement must be in writing and must
be signed by both parties.
18.COMPLETE AGREEMENT.
Customer acknowledges that it has read the
Agreement, understands it and agrees to be bound by
its Terms and Conditions. This contract contains the
entire agreement of the parties and supersedes any
and all prior agreements, understandings and
communications between Customer and GISinc
related to the subject matter of this contract. No
amendment or modification of this contract shall bind
either party unless it is in writing and is signed by
Customer’s authorized representative and an
authorized representative of GISinc.
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