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HomeMy WebLinkAbout20- RFP - Review and Amendments to the City of Bozeman UDC to Support Affordable Housing Development and Preservation, and Revise Affordable Housing OrdinancePage 1 of 27 REQUEST FOR PROPOSALS (RFP) REVIEW AND AMENDMENTS TO THE CITY OF BOZEMAN UNIFIED DEVELOPMENT CODE TO SUPPORT AFFORDABLE HOUSING DEVELOPMENT AND PRESERVATION, AND REVISE SECTION 38.380, AFFORDABLE HOUSING ORDINANCE CITY OF BOZEMAN Bozeman, MT City of Bozeman PO Box 1230 Bozeman, MT 59771-1230 December, 2020 NOTICE IS HEREBY given that the City of Bozeman (City) is seeking proposals from firms to 1.) provide a review of and recommended amendments to its Affordable Housing Ordinance, Bozeman Municipal Code Section 38.380, and 2.) analyze the broader City of Bozeman Unified Development Code, Bozeman Municipal Code Chapter 38, to identify barriers to affordable home development and preservation and recommend amendments to decrease identified barriers and encourage affordable home development and preservation. Copies of the Request for Proposals are available on the City’s website at: http://weblink.bozeman.net/WebLink8/0/doc/229091/Electronic.aspx. All proposals must be provided as a single, searchable PDF document file and be submitted digitally as an email attachment to the RFP 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 RFP 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. Deliver RFPs to the City Clerk by January 14, 2021 at 12:00 PM MST. It is the sole responsibility of the proposing party to ensure that proposals are received prior to the closing time as late submittals will not be accepted and will be returned unopened. The email address for submission is: agenda@bozeman.net NON-DISCRIMINATION AND EQUAL PAY The City of Bozeman is an Equal Opportunity Employer. Discrimination in the performance of any agreement awarded under this RFP on the basis of race, color, religion, creed, sex, age, marital status, national origin, or actual or perceived sexual orientation, gender identity or disability is prohibited. This prohibition shall apply to the hiring and treatment of the awarded entity’s employees and to all subcontracts. As such, each entity submitting under this notice shall include a provision wherein the submitting entity, or entities, affirms in writing it will not discriminate on the basis of race, color, religion, creed, sex, age, marital status, national origin, or because of actual or perceived sexual orientation, gender identity or disability and which also recognizes the eventual contract will contain a provision prohibiting discrimination as described above and that this prohibition on discrimination shall apply to the hiring and treatment of the submitting entity’s employees and to all subcontracts. In addition, pursuant to City Commission Resolution 5169, the entity awarded a contract under this RFP and any subcontractors must abide by the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act), and affirm it will abide by the above and that it has visited the State of Montana Equal Pay for Equal Work “best practices” website, https://equalpay.mt.gov/BestPractices/Employers, or equivalent “best practices publication and has read the material. Any administrative questions regarding proposal procedures should be directed to: Mike Maas, City Clerk (406) 582-2321, agenda@bozeman.net. Questions relating to the RFP should be directed to: Tanya Andreasen, Community Housing Program Manager, (406)582-2953, tandreasen@bozeman.net. DATED at Bozeman, Montana, this 20th Day of December, 2020. Mike Maas City Clerk City of Bozeman For publication on: Sunday, December 20th, 2020 Sunday, December 27th, 2020 Sunday, January 3rd, 2021 I. INTRODUCTION The City of Bozeman (City), is seeking proposals from consulting firms (Respondents) to provide a review of its Affordable Housing Ordinance, Bozeman Municipal Code Section 38.380 (AHO), and propose amendments that meet the City’s identified goals in the Community Housing Action Plan. Further, and in a second phase of work, the City seeks a larger code analysis and recommendations for changes to the City of Bozeman’s Unified Development Code (UDC) that will ensure that the City of Bozeman’s land use policies encourage, promote, and expedite affordable housing construction and preservation, thereby increasing housing stock across the continuum of housing need while remaining in balance with other community priorities. The City of Bozeman is undertaking this code analysis in order to identify potential amendments to the AHO and UDC to make the building of all dwelling units more feasible and to emphasize the creation of a range of housing typesfrom small affordable rental units to stand alone single family housing. This housing spectrum should include both market rate and below-market rate units. The final recommendations may include revisions to the existing code and/or the creation of new sections of code. It is intended, to the extent possible, that the resulting code amendments to be proposed to the City Commission will encourage and incentivize affordable housing, focusing on code changes that foster flexibility and creativity that will directly reduce the cost of developing and building in Bozeman, including a reduction in the time it takes for City approval from concept to occupancy of built housing units. The selected firms will work with the City of Bozeman Community Housing Program Manager as well as the City of Bozeman Community Development Department throughout the project. This RFP shall not commit the City to enter into an 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. The City reserves the right to accept or reject all responses received as a result of this RFP if it is in the City’s best interest to do so. This procurement is governed by the laws of the State of Montana and venue for all legal proceedings shall be in the 18th Judicial District Court, Gallatin County. By offering to perform services under this RFP, all Submitters agree to be bound by the laws of the State of Montana and of the City, including, but not limited to, applicable wage rates, payments, gross receipts taxes, building codes, equal opportunity employment practices, safety, non-discrimination, etc. II. PROJECT BACKGROUND AND DESCRIPTION The City of Bozeman’s Community Housing Needs Assessment (Needs Assessment) was completed in early 2019, and the Community Housing Action Plan (Action Plan) accepted early in 2020. The Needs Assessment estimated that between 5,400 to 6,340 housing units are needed by 2025 to address the current housing shortfall for residents and to keep up with population and job growth. About 60% of these units need to be priced below-market to meet the full range of community housing needs. The Action Plan is structured as a community partnership framework that advances collaborations across agencies and organizations to address housing issues in Bozeman. The City of Bozeman’s Community Housing Program is a convenor of these diverse partners, and takes the lead on researching and implementing many of the strategies of the Action Plan. The Action Plan identifies 19 Strategies and 78 associated Action Items to address the faceted aspects of affordable housing production in our community. One of those strategies is called Removal of Regulatory Barriers. There are 6 action items associated with that strategy, including the code analysis described in this RFP. The City seeks to enter into a contract with the selected firm that will first analyze and propose revisions to its Affordable Housing Ordinance (AHO). The AHO was first adopted in 2015 by the City Commission with voluntary provisions which later became mandatory. Since then, fourteen (14) homes have been constructed as a result of the AHO, and $448,028 collected in cash paid in lieu of constructed affordable homes. By putting the AHO into action in our community, it has become apparent that its initial iteration lacks clarity in some sections, or is missing language that can cause misinterpretation and confusion. Further, the City seeks to increase the effectiveness of the AHO, meaning to increase the number of affordable homes built per year, across dwelling type, size, and geography. The City also seeks to explore how publicly subsidized homes built or preserved can remain affordable upon resale to future qualified home buyers. Building upon its analysis of the AHO in phase 1, the selected firm will proceed to phase 2 and review the larger Unified Development Code, with the intention of eliminating or reducing barriers to affordable housing development or preservation, and recommend policy changes that encourage and incentivize it when possible while retaining compliance with all state laws and correlating with other municipal priorities. Submitting firms must be able to demonstrate experience with municipal code analysis, with particular experience with affordable housing construction and preservation, and familiarity with Montana law applicable to land development, and ability to rapidly understand local conditions relevant to this RFP. As housing affordability is of critical importance across many stakeholder groups in our community, the selected firm will demonstrate experience with public engagement and communication (graphical, oral, written, digital). The complex nature of the issues related to housing affordability creates a need for careful, transparent, and regular communication and engagement with a variety of stakeholder groups during the analysis process, and when forming recommendations. Submitting firms must be able to demonstrate an ability to present complicated financial and housing development concepts, as well as impacts of potential policy changes, in relation to community indicators and needs by using graphical presentations and materials (digital and print). It will be crucial that the selected firm develop a public engagement process that will not only gather ideas from diverse community experts, but also includes their perspectives and needs in the recommendations presented to the Bozeman City Commission. III. SCOPE OF SERVICES The City seeks proposals that prove capabilities for the project areas below; describing strategies to be used. Sufficient detail must be given and should include examples of past projects, ability to meet deadlines, public engagement experience, and modes of communication with staff, and capacity for conveying complicated concepts to diverse stakeholders. Consultant responsibilities Phase 1. An analysis of the City of Bozeman’s Affordable Housing Ordinance (AHO) Task 1.1 Project Initiation Review the scope of work, timeline for completion, identify major issues to be addressed in the project, identify which previous efforts and studies contain information relevant to this project, and identify points of City staff contact, as well as work with City staff contacts to begin to list out stakeholders, individuals and organizations, that should be engaged throughout the process, and at what level of engagement according to the City’s Community Engagement approach. Task 1.2 Background Research a. Understanding of the Montana Subdivision and Platting Act (76-3-101 MCA), annexation statutes (7-2-4201 through 4761 MCA), and municipal zoning enabling act (76-2-301 MCA). b. Understanding of the Bozeman Community Plan 2020 c. Understanding of the City Commission Stratigic Plan and priorities d. Understanding of the water, wastewater, transportation, park, and climate plans of the City of Bozeman e. Understanding of the City’s charter form of government and self-governing authority, including the City of Bozeman Charter, State enabling act (7-3-701 MCA), and Constitution of the State of Montana, Art. II f. Understanding census data establishing the relationship of residential development in Bozeman to the larger multi-county regional context. Task 1.3 Stakeholder Engagement This process will include engaging in community meetings, presentations, or working with existing groups, including but not limited to: a. Community Development, Public Works, and other City staff b. Community Affordable Housing Advisory Board (CAHAB) c. Local expert groups like lenders, home builders, designers, real estate agents d. City Commission e. Persons income qualified for participation in the Affordable Housing Ordinance. Task 1.4 Analyze the AHO a. Review the AHO for consistency internally and to the rest of the Unified Development Code and enabling legislation. b. Evaluate if and how the identified purpose of the AHO has been achieved by examining past development projects that included affordable housing, as well as programmatic outcomes of the Community Housing Program. What has worked? What has not? c. Evaluate how the AHO has influenced key stakeholder decisions about affordable home development, including home builders, developers, investors, end users, and community partners. d. Identify actions already taken by the City to support creation of a diverse housing stock and correlation to AHO and community housing action plan. e. Identify areas where changes are needed to support implementation of the Community Housing Action Plan and other adopted plans of the community. Task 1.5 Draft Final Report Draft a preliminary report early in the process documenting findings of data, case studies, proposed recommendations and present the report to City staff and key stakeholder groups. The final report with final recommendations will include methodology, framework, and record of public engagement methods and results. All recommendations must be legally achievable without changes at the state level. It is crucial that implications of policy changes are presented with each recommendation by using modeling, infographics, narrative, life cycle cost analysis, and case study examples. All recommendations must identify the beneficiary of the proposed change, degree of difficulty to implement the recommendation, degree of benefit over the regulations presently in place, and identify sources of funding to adopt and carry out the proposal over the next 20 years. Task 1.6 Draft Affordable Housing Ordinance It is expected that the recommendations described in Task 1.5 may lead to the repeal and replacement, or amendment, of the current AHO. Therefore, this task may include revisions to the current AHO or drafting anew ordinance for City Commission consideration. Phase 2. Audit of the current City of Bozeman land-based use code, the Unified Development Code (UDC), to identify barriers to affordable housing development and preservation; and recommend code changes that encourage, incentivize, and expedite affordable housing development and preservation. Task 2.1 Project Initiation Review the scope of work, timeline for completion, identify major issues to be addressed in the project, identify which previous efforts and studies contain information relevant to this project, and identify points of City staff contact, as well as work with City staff contacts to begin to list stakeholders, individuals and organizations, that should be engaged throughout the process, and at what level of engagement according to the City’s Community Engagement approach. Task 2.2 Background Research Please refer to the Background Research section in Phase 1. Task 2.3 Stakeholder Engagment This process will include engaging in community meetings, presentations, or working with existing groups to include but not limited to: f. Community Development Staff g. The Planning Board/Zoning Commission/Historic Preservation Advisory Board/Interneighborhood Council h. Community Affordable Housing Advisory Board (CAHAB) i. Local expert groups like lenders, home builders, designers, real estate agents j. City Commission Task 2.4 Analyze the UDC and associated standards Specific code sections may include but not be limited to: a. Zones & Allowed Housing Types b. Density & Minimum Lot Sizes c. Parking Requirements d. Building Heights e. Setbacks f. Accessory Dwelling Units & Cottage Cluster Housing g. Utility connections and Engineering Design Standards h. Park dedication and Park Design standards i. Public engagement processes j. Review processes for discretionary and of-right review (subdivision, zoning, planned unit developments) k. Design Standards l. Fees associated with the development and construction of housing m. Ensuring ongoing affordability (CLT, Deed restriction) n. Procedural adjustments and subsidies o. Private covenants and impact on regulatory compliance Task 2.5: Draft Final Report Draft a preliminary report early in the process documenting findings of data, case studies, proposed recommendations and present the report to City staff and key stakeholder groups. The final report with final recommendations will include methodology, framework, and record of public engagement methods and results. All recommendations must be legally achievable without changes at the state level. It is crucial that implications of policy changes are presented with each recommendation by using modeling, infographics, narrative, life cycle cost analysis, and case study examples. All recommendations must identify the beneficiary of the proposed change, degree of difficulty to implement the recommendation, degree of benefit over the regulations presently in place, identify any detrimental effects on other community priorities, and identify sources of funding to adopt and carry out the proposal over the next 20 years. Recommendations applicable to engineering standards must consider costs through the life cycle of the infrastructure up to and including replacement. For both phases of work, consultant responsibilities could include: • Goal and objective development • Collect case studies from other communities that provide understanding of policy change implications • Document layout and assembly, including drafting, editing, formatting, and finalizing reports and print or digital materials • Public outreach and communication materials – print and digital • Policy change recommendations • Implementation recommendations • Metrics for producing desired outcomes of recommended policy changes • Demonstration of alignment with other City of Bozeman plans and policies Project Deliverables 1. Final Report(s) summarizing findings of data, results of analysis (including methodology), case study comparisons, and record of public engagement methods and results. 2. Draft of all recommended code updates and amendments with an explanation of the effects of the amendments to be presented to Community Development staff, the City Commission, and applicable City advisory boards. 3. Upon completion of the project, the consultants will provide all documentation from the process as well as a final report including recommendations for code changes and recommended new code language consistent with City’s code format and numbering for review and potential approval by the City of Bozeman City Commission. The final scope of work for each phase will be negotiated with the successful Respondent. IV. PROPOSAL REQUIREMENTS Firms interested in providing the services described above must submit the following information. Responses to each item should appear in the same order as in this RFP and should identify the item to which the responses applies. a) Title Page The title page shall include the firm/individual name, address, contact, telephone number and email address to contact for information regarding the proposal. The title page must bear the signature of authorized representative of the Respondent and designates, by name, of not more than two individuals authorized to sign agreements with the City on behalf of the Respondent. b) Executive Summary This section shall provide an overview of the proposal and the Respondent’s understanding of the City’s needs. The summary should also include any experience the Respondent wishes to highlight, as well as any relevant conditions or restrictions. c) Firm Profile & Project Personnel Provide information about the firm, including: 1. Location, number of employees, and ownership. 2. Describe the firm’s history. Include information on how many years the firm has worked in this topic area. Identify the firm’s annual volume of business, and speak to the firm’s current workload. 3. Brief resumes shall be provided for each key project individual (no longer than one page). Any proposed subcontractors should be clearly identified and their profiles described. 4. Primary contact information for the company including contact name(s) and title(s), mailing address(s), phone number(s), and email address(s). d) Scope of Proposal 1. Provide a description of how the Respondent will achieve each task outlined in the Scope of Services above. 2. Provide an outline of the schedule for completing tasks. Include deliverable milestones. 3. Identify what portion of work, if any, may be subcontracted. e) Budget The budget for this proposal is limited to a maximum of $100,000 for FY21, therefore proposals should provide the following: 1. Estimated Hours by Task: Provide estimated hours for each proposed task by job title and employee name, including the time required for meetings, conference calls, etc. 2. Cost by Task: Provide the cost of each task identified in the Scope of Services section above, detailed by employee/job position and number of hours. Provide a total not to exceed figure for the Scope of Services. Price all additional services/deliverables separately. 3. Schedule of Rates: Provide a schedule of billing rates by category of employee and job title to be used during the term of the Agreement. This fee schedule will be firm for at least one (1) year from the date of the Agreement. The fee schedule will be used as a basis for determining fees should additional services be necessary. Include a per meeting rate in the event additional meetings are needed. A fee schedule for sub-consultants, if used, shall be included. 4. All direct costs (i.e., travel, printing, postage, etc.) specifically attributed to the project and not included in the billing rates must be identified. f) Description of recent or current work performed for the City of Bozeman (past 2 years) g) References Please provide name and contact information for at least three references for similar projects completed in the last two years. h) Affirmation of Nondiscrimination and Equal Pay (see Attachment A) Non-completion of the Affirmation of Nondiscrimination and Equal Pay is cause for disqualification of firms. V. TIMELINES, DELIVERY DEADLINE, AND INSTRUCTIONS EVENT DATE/TIME Publication dates of RFP Sunday, December 20th, 2020 Sunday, December 27th, 2020 Sunday, January 3rd, 2021 Deadline for receipt of proposals 12:00 PM MST, January 14th, 2021 Evaluation of proposals TBD Interviews (if necessary) and Selection of consultant TBD With the exception of the advertising dates and advertised due date, the City reserves the right to modify the above timeline. VI. AMENDMENTS TO SOLICITATION Any interpretation or correction of this request will be published on the City’s webpage. The deadline for questions related to this document is 4:00 PM MST on January 13th, 2021. VII. CONTACT INFORMATION Any administrative questions regarding proposal procedures should be directed to: Mike Maas, City Clerk, (406) 582-2321, agenda@bozeman.net Questions relating to scope of services should be directed to: Tanya Andreasen, Community Housing Program Manager, (406)582-2953, tandreasen@bozeman.net. VIII. SELECTION PROCEDURE A review committee will evaluate all responses to the RFP that meet the submittal requirements and deadline. Submittals that do not meet the requirement or deadline will not be considered. The review committee will rank the proposals and may arrange interviews with the finalist(s) prior to selection. Selection may be made directly based on the written RFP submission. If interviews occur, the selection of finalists to be interviewed will be made by a selection committee representing the City of Bozeman. The selection of interview candidates will be based on an evaluation of the written responses to the RFPs. All submitted proposals must be complete and contain the information required as stated in the "Request for Proposals.” IX. SELECTION CRITERIA Proposals will be evaluated based on the following criteria: • [5 points] Executive Summary • [30 points] Proposal Requirements • [20 points] Capability of the Firm • [10 points] Assigned Personnel • [20 points] Cost and Work Hours • [15 points] Related Experience with Similar Projects X. FORM OF AGREEMENT The Contractor will be required to enter into a contract with the City in substantially the same form as the professional services agreement attached as Attachment B. Options for two (2) fiscal year extensions beyond the intial contract term may be included in the agreement if agreed upon by both parties. XI. CITY RESERVATION OF RIGHTS / LIABILITY WAIVER All proposals submitted in response to this RFP become the property of the City and public records and, as such, may be subject to public review. A SUBMISSION IN RESPONSE TO THIS REQUEST FOR PROPOSALS CONFERS NO RIGHTS UPON ANY RESPONDENTS AND SHALL NOT OBLIGATE THE CITY IN ANY MANNER WHATSOEVER. THE CITY RESERVES THE RIGHT TO MAKE NO AWARD AND TO SOLICIT ADDITIONAL REQUESTS FOR PROPOSALS AT A LATER DATE. A. This RFP may be canceled or any or all responses may be rejected in whole or in part, as specified herein, when it is in the best interests of the City. If the City cancels or revises this RFP, all Respondents who submitted will be notified using email. B. The City reserves the right to accept or reject any and all proposals; to add or delete items and/or quantities; to amend the RFP; to waive any minor irregularities, informalities, or failure to conform to the RFP; to extend the deadline for submitting proposals; to postpone award for up to 60 days; to award one or more contracts, by item or task, or groups of items or tasks, if so provided in the RFP and if multiple awards or phases are determined by the City to be in the public interest. C. The City of Bozeman reserves the right to reject the proposal of any person/firm who previously failed to perform properly to the satisfaction of the City of Bozeman, or complete on time agreements of similar nature, or to reject the proposal of any person/firm who is not in a position to perform such an agreement satisfactorily as determined by the City of Bozeman. D. The City of Bozeman reserves the right to determine the best qualified Contractor and negotiate a final scope of service and cost, negotiate a contract with another Contractor if an agreement cannot be reached with the first selected Contractor, or reject all proposals. E. The professional services contract between the City of Bozeman and the successful Contractor will incorporate the Contractor's scope of service and work schedule as part of the agreement (see Appendix B for form of professional services agreement. The professional services agreement presented to the Contractor may differ from this form as appropriate for the scope of services). F. This RFP does not commit the City to award a contract. The City assumes no liability or responsibility for costs incurred by firms in responding to this request for proposals or request for interviews, additional data, or other information with respect to the selection process, prior to the issuance of an agreement, contract or purchase order. The Contractor, by submitting a response to this RFP, waives all right to protest or seek any legal remedies whatsoever regarding any aspect of this RFP. G. The City reserves the right to cancel, in part or in its entirety, this RFP including, but not limited to: selection procedures, submittal date, and submittal requirements. If the City cancels or revises this RFP, all Contractors who submitted proposals will be notified using email. H. Projects under any contract are subject to the availability of funds. XII. NONDISCRIMINATION AND EQUAL PAY POLICY The City of Bozeman requires each entity submitting under this notice shall affirm, on a separate form provided, that it will not discriminate on the basis of race, color, religion, creed, sex, age, marital status, national origin, or because of actual or perceived sexual orientation, sexual preference, gender identity, or disability in fulfillment of a contract entered into for the services identified herein and that this prohibition on discrimination shall apply to the hiring and treatment of the submitting entity’s employees and to all subcontracts it enters into in the fulfillment of the services identified herein. Failure to comply with this requirement shall be cause for the submittal to be deemed nonresponsive. The City also requires each entity submitting under this notice shall affirm it will abide by the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act), and has visited the State of Montana Equal Pay for Equal Work “best practices” website, https://equalpay.mt.gov/BestPractices/Employers, or equivalent “best practices publication and has read the material. XIII. MISCELLANEOUS A. No Oral Agreements. No conversations or oral agreements with any officer, employee, or agent of the City shall affect or modify any term of this solicitation. Oral communications or any written/email communication between any person and City officer, employee or agent shall not be considered binding. B. No Partnership/Business Organization. Nothing in this solicitation or in any subsequent agreement, or any other contract entered into as a result of this solicitation, shall constitute, create, give rise to or otherwise be recognized as a partnership or formal business organization of any kind between or among the respondent and the City. C. Employment Restriction and Indemnity. No person who is an owner, officer, employee, contractor, or consultant of a respondent shall be an officer or employee of the City. No rights of the City’s retirement or personnel rules accrue to a respondent, its officers, employees, contractors, or consultants. Respondents shall have the responsibility of all salaries, wages, bonuses, retirement, withholdings, worker’s compensation and occupational disease compensation, insurance, unemployment compensation other benefits and taxes and premiums appurtenant thereto concerning its officers, employees, contractors, and consultants. Each Respondent shall save and hold the City harmless with respect to any and all claims for payment, compensation, salary, wages, bonuses, retirement, withholdings, worker’s compensation and occupational disease compensation, insurance, unemployment compensation other benefits and taxes and premiums in any way related to each respondent’s officers, employees, contractors and consultants. D. Accessibility. Upon reasonable notice, the City will provide assistance for those persons with sensory impairments. For further information please contact the ADA Coordinator Mike Gray at 406-582-3232 or the City’s TTY line at 406-582-2301. E. Procurement. When discrepancies occur between words and figures in this solicitation, the words shall govern. No responsibility shall attach to a City employee for the premature opening of an RFP not properly addressed and identified in accordance with these documents. F. Governing Law. This solicitation and any disputes arising hereunder or under any future agreement shall be governed and construed and enforced in accordance with the laws of the State of Montana, without reference to principles of choice or conflicts of laws. XIV. ATTACHMENTS The following exhibits are incorporated in this RFP: Attachment A: Non-Discrimination Affirmation Attachment B: Form of City Professional Services Agreement END OF RFP Attachment A NONDISCRIMINATION AND EQUAL PAY AFFIRMATION ____________________________________(name of entity submitting) hereby affirms it will not discriminate on the basis of race, color, religion, creed, sex, age, marital status, national origin, or because of actual or perceived sexual orientation, gender identity or disability and acknowledges and understands the eventual contract will contain a provision prohibiting discrimination as described above and this prohibition on discrimination shall apply to the hiring and treatments or proposer’s employees and to all subcontracts. In addition, ____________________________________(name of entity submitting) hereby affirms it will abide by the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act), and has visited the State of Montana Equal Pay for Equal Work “best practices” website, https://equalpay.mt.gov/BestPractices/Employers, or equivalent “best practices publication and has read the material. ______________________________________ Name and title of person authorized to sign on behalf of submitter ATTACHMENT B FORM OF PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this _____ day of ____________, 202__ (“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, ____________, _______________, 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/produce the Deliverables 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 _____ day of ______________, 202_, 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, 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. 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 term is defined by §18-2-401(1), MCA. When making assignments of work, Contractor shall use workers both skilled in their trade and specialized in their field of work for all work to which they are assigned. Pursuant to §§18-2-403 and 18-2-422, MCA, Contractor shall pay wages, fringe benefits, and expenses, including travel allowances as set forth in the current Montana Prevailing Wage Rate for Non Construction Services in 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 City, to alleviate or resolve all such labor problems or disputes. The specific steps Contractor shall take shall be left to the discretion of Contractor; provided, however, that Contractor shall bear all costs of any related legal action. Contractor shall provide immediate relief to the City so as to permit the services to continue at no additional cost to City. Contractor shall indemnify, defend, and hold the City harmless from any and all claims, demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in connection with any labor problems or disputes or any delays or stoppages of work associated with such problems or disputes and for any claims regarding underpaid prevailing wages. 7. Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of expert witness and consultants), losses, expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional misconduct of the Contractor; or (ii) any negligent, reckless, or intentional misconduct of any of the Contractor’s agents. For the professional services rendered, to the fullest extent permitted by law, Contractor agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees, to the extent caused by the negligence or 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. 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. 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. 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 _________________ 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 purpose of this Agreement shall be _____________________ or such other individual as Contractor shall designate in writing. Whenever direction to or communication with Contractor is required by this Agreement, such direction or communication shall be directed to Contractor’s Representative; provided, however, that in exigent circumstances when Contractor’s Representative is not available, City may direct its direction or communication to other designated Contractor personnel or agents. 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 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 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. 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. 31. Extensions: this Agreement may, upon mutual agreement, be extended for a period of one year by written agreement of the Parties. In no case, however, may this Agreement run longer than __________________________. 32. Ownership and Reuse of Documents: Upon payment in full by City to Contractor for all monies due Contractor under this Agreement, the Deliverables produced under this Agreement shall become the sole property of the City. The City’s use, reuse, alteration, or modification of the Deliverables will be at City’s sole risk and without liability or legal exposure to Contractor or to its officers, directors, members, partners, agents, employees, and consultants. **** 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 ____________________________________ CONTRACTOR (Type Name Above) By________________________________ By__________________________________ Jeff Mihelich, City Manager Print Name:___________________________ Print Title:____________________________ APPROVED AS TO FORM: By_______________________________ Greg Sullivan, Bozeman City Attorney