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HomeMy WebLinkAbout20- Infastructure Reimbursement Agreement - NWX - Davis Lift StationCITY OF BOZEMAN INFRASTRUCTURE REIMBURSEMENT AGREEMENT THIS AGREEMENT is made and effective this 1st day of October, 2020, by and between the CITY OF BOZEMAN, MONTANA, a self-governing municipal corporation organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as “City,” and, NWX, LLC with a mailing address of PO Box 11890, Bozeman, MT, 59719 hereinafter referred to as “Developer.” WHEREAS, the Developer desires to complete certain public wastewater system improvements to benefit its development project, Master Site Plan Development Application #19440, Northwest Crossing (the “Development”) and the City consents to accommodate the Developer’s request and in doing so the City agrees to augment an ongoing wastewater system improvement project, Norton East Ranch Sewer Outfall of the Davis Lane Lift Station & Norton Sewer, Project Number 19012 (the “Project”) for the benefit of the Developer; WHEREAS, the Developer will pay for all costs of the changes and improvements to the Project desired by the Developer which will provide a benefit to the Development; WHEREAS, the improvements include the design and construction of modifications to the Project based on approved plans from Manhole #4 (intersection of Arabian Ave. and Equestrian Lane) south to Manhole #1A (Baxter Lane) of the Project and other related wastewater system improvements; and WHEREAS, the City and the Developer desire to set forth the terms of their agreement in writing; and WHEREAS, part of this Agreement is contingent upon approval by the Bozeman City Commission of a change order resolution as described herein. Page 1 of 9 DocuSign Envelope ID: 3A176207-40A4-4300-9481-3958C2FEB486 Page 2 of 9 NOW THEREFORE, 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. Incorporation: The foregoing recitals of this Agreement are contractual and are hereby incorporated by reference. 2. Improvements: The design and construction of improvements to the Project (the “Improvements”) are generally shown in the attached conceptual modifications to the Project (Exhibit 1). 3.Contracts for Design and Construction of Project: The City intends for the design, engineering and construction of the Improvements to be conducted under current contracts let by the City and intends to include the work of the Improvements by change order by the City. To add the construction of the Improvements to the existing City contracts the City Commission must approve one or more change order resolutions. As such, Developer understands inclusion of the construction of the Improvements in the Project is contingent upon approval of one or more change order resolutions by the Bozeman City Commission. Developer also agrees that timing of construction of the Improvements is in the sole discretion of the City. Developer will only be obligated to pay the City if the required change orders resolutions are approved. This Agreement does not give the Developer any interest or control in how the City completes the Improvements nor does the Developer have an interest in or becomes a beneficiary of the City’s design, engineering, or construction contracts. 4.Preliminary Project Costs and Schedule: The preliminary project costs for construction of the Improvements is $148,672.47 and the preliminary projects costs for design and engineering of the Improvements is $6,395.00 (the preliminary projects costs for construction and engineering and design are collectively referred to as the “Preliminary Project Costs”). The Preliminary Project Costs are based on estimates from City’s contractor and engineer for the Project as shown in Exhibit 2. Exhibit 2 additionally shows the “Preliminary Schedule” for the Improvements. Developer acknowledges the City has no control over final change order pricing and contract time from the City’s contractor, and as such understands and agrees the Preliminary Project Costs are estimations and preliminary in nature. City will provide Developer the final change order pricing and contract time amendments from the City’s contractor and engineer before it is submitted to the City Commission. If the Developer agrees to the change order pricing and time, based on the same being reasonably similar to DocuSign Envelope ID: 3A176207-40A4-4300-9481-3958C2FEB486 Page 3 of 9 the Preliminary Project Costs and Preliminary Schedule, prior to the City Commission adopting the necessary change order resolutions approving the inclusion of the Improvements in the Project, the Developer will pay such costs prior to the City issuing the change order to the contractor. Developer specifically recognizes and agrees the ultimate financial obligation of the Developer for the Improvements will not be based on the Preliminary Project Costs or Schedule but rather will be based on the actual costs and time of construction of the Improvements as determined by the change order. The City recognizes and agrees the Developer has, as of the date of this Agreement, already paid the City for Preliminary Project Costs totaling $8,658 related to design and engineering of the Improvements. The actual design cost is $6,395, and the Developer will be reimbursed the difference between $8,658 and $6,395, but the actual design costs related to engineering and design paid by the Developer are not refundable. 5. Payment: the Developer must pay the preliminary project costs for construction of the improvements prior to approval of the change order and any additional amount for the actual work for the completed Improvements. 6. Waiver of Claims/ Limitation of Liability/Indemnity. To the fullest extent permitted by law, Developer waives all claims against the City, its officers and employees, agents, insurers, and consultants any and all claims for or entitlement to special, incidental, indirect, or consequential damages arising out of, resulting from, or in any way related to the City’s construction of the Improvements, including delay of completion of the Project that may affect the Development. Furthermore, the Developer recognizes that if the City does not complete the construction of the Improvements as part of the Project the Developer’s sole and exclusive remedy against the City is for the City to return the Construction portion of Preliminary Project Costs provided by the Developer at the time of change order resolution; however, as noted above City will not reimburse the design portion of Preliminary Project Costs. In addition to the above, Developer shall defend and indemnify the City from any claims brought against the City by any of the Developer’s partners, investors, creditors, lenders, agents, or any other entity associated with the Developer or the Development for claims related to delay of or failure to complete the Improvements. 7. City Not Bound In Its Regulatory Authority. Developer recognizes the City enters this Agreement in its capacity as a municipality constructing public infrastructure and not in its regulatory role. As such, Developer agrees that nothing herein binds the City to make certain approvals in its regulatory authority in review of subdivision, zoning, building or other regulatory applications. DocuSign Envelope ID: 3A176207-40A4-4300-9481-3958C2FEB486 Page 4 of 9 8. Representations and Warranties: Each party represents and warrants to the other that: a. Execution of this Agreement does not violate any agreement, bylaw, statute or ordinance binding on or applicable to such party; and b. The individual executing this Agreement on behalf of the party is duly authorized and empowered to execute this Agreement for the party and following execution and delivery by both parties this Agreement will be a legally binding obligation of the party, enforceable against the party in accordance with its terms. 9. Representatives and Notices: a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be Shawn Kohtz, City Engineer, 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. Developer’s Representative: The Developer’s Representative for the purpose of this Agreement shall be Bryan Klein or such other individual as Developer shall designate in writing. Whenever direction to or communication with Developer is required by this Agreement, such direction or communication shall be directed to Developer’s Representative; provided, however, that in exigent circumstances when Developer’s Representative is not available, City may direct its direction or communication to other designated Developer 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 DocuSign Envelope ID: 3A176207-40A4-4300-9481-3958C2FEB486 Page 5 of 9 following mailing, if mailed by ordinary mail to the address shown above, postage prepaid. 10. Modification and Assignability: This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Developer may not subcontract or assign Developer’s rights, including duties and obligations arising hereunder, without the prior written consent of the City. 11. 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. 12. 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. 13. 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. 14. Survival: Developer’s indemnification shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 15. 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. DocuSign Envelope ID: 3A176207-40A4-4300-9481-3958C2FEB486 Page 6 of 9 16. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 17. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 18. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 19. 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. 20. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 21. 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. 22. 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 **** DocuSign Envelope ID: 3A176207-40A4-4300-9481-3958C2FEB486 Page 7 of 9 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written or as recorded in an electronic signature. Dated this ____ day of _______________, 2020 NWX, LLC _________________________________________ By: Bryan Klein, Manager Dated this ____ day of _______________, 2020 CITY OF BOZEMAN _________________________________________ By: City Manager DocuSign Envelope ID: 3A176207-40A4-4300-9481-3958C2FEB486 10/1/2020 10/2/2020 Page 8 of 9 Exhibit 1 Improvement Conceptual Plans (attached) DocuSign Envelope ID: 3A176207-40A4-4300-9481-3958C2FEB486 Page 9 of 9 Exhibit 2 Preliminary Project Costs Design = $6,395.00 (see attachment) Construction = $148,672.47 Preliminary Schedule Improvements commence on or about October 19, 2020 and conclude December 2, 2020 DocuSign Envelope ID: 3A176207-40A4-4300-9481-3958C2FEB486 W L W L W L W L N O R T H FINAL PLANS - FOR BIDDING 2 5 0 2 5 5 0 V E R T I C A L S C A L E : 1 " = 1 0 ' H O R I Z O N T A L S C A L E : 1 " = 5 0 ' FILE: PROJECT NO: CAD: QUALITY ASSURANCE: DRAWING HISTORY DATE DESCRIPTION C 4 . 0 BOZEMAN, MONTANA SANITARY SEWER MAIN EXTENSION DAVIS LN LIFT STATION & NORTON SEWER SS PLAN AND PROFILE ARABIAN AVENUE STA. 0+00 TO 5+00 19012 - - - - - - - BAXTER RE-DESIGN - - - - - 09/04/20 BIDDING DOCUMENTS03/13/20 CMK/BMB/SEP/TT 19012_PNP_A_NORTON_PROD.DWG - 25 0 25 50VERTICAL SCALE: 1"=10'HORIZONTAL SCALE: 1" = 50'NORTHP:\19012_Davis_Lane_Lift_Station_&_Norton_Sewer\CADD_C3D\PRODUCTION_DWG\19012_PNP_A_NORTON_PROD.dwg, C4.0, 9/4/2020 7:23:57 AM, tpirtz, 1:1EXHIBIT 1 DocuSign Envelope ID: 3A176207-40A4-4300-9481-3958C2FEB486 W L WL W L NORTH FINAL PLANS - FOR BIDDING 2502550VERTICAL SCALE: 1"=10'HORIZONTAL SCALE: 1"=50' FILE: PROJECT NO: CAD: QUALITY ASSURANCE: DRAWING HISTORY DATE DESCRIPTION C 4 . 1 BOZEMAN, MONTANA SANITARY SEWER MAIN EXTENSION DAVIS LN LIFT STATION & NORTON SEWER SS PLAN AND PROFILE ARABIAN AVENUE STA. 5+00 TO 11+00 19012 -- - - - - - BAXTER RE-DESIGN - - - - - 09/04/20 BIDDING DOCUMENTS03/13/20 CMK/BMB/SEP/TT 19012_PNP_A_NORTON_PROD.DWG - P:\19012_Davis_Lane_Lift_Station_&_Norton_Sewer\CADD_C3D\PRODUCTION_DWG\19012_PNP_A_NORTON_PROD.dwg, C4.1, 9/4/2020 7:21:06 AM, tpirtz, 1:1 DocuSign Envelope ID: 3A176207-40A4-4300-9481-3958C2FEB486 Copyright 2015 HDR Engineering, Inc. Change Proposal Request No. _5___ Project Name: Davis Lane Lift Station and Norton East Ranch Outfall Sewer Project Owner’s Project No. (if applicable): Project Owner: City of Bozeman Regulatory Agency Project No. (if applicable): HDR Project No. 10156423 Initiated by: X Engineer Contractor Contractor: COP Construction Date: 9/4/20 Attention: The following change in the contract on this project is proposed. Please provide your proposed price for the cost of this change. •A breakdown of cost shall be provided upon request by the Owner or Engineer. •Work shall not commence until authorized by the Owner. Description of the Proposed Change: Modify the sewer alignment in Baxter Lane and deepen the sewer from MH1to MH3 in accordance to the attached revised Sheets C4.0 and C4.1 dated 9/4/20. Provide pricing as a lump sum bid item titled “Additional Works Associated the Baxter Re-design” which will cover the additional work associated with the proposed change to include upsizing the manhole from a 60-inch to an 84-inch drop manhole, deepening the manhole, additional excavation depth, additional flowable fill, additional dewatering, additional surface restoration, additional backfill and compaction and all other incidental work related to this change. Final payment will be made using the original design items and quantities plus the “Additional Works Associated the Baxter Re-design” unit price bid. By Tim Pirtz (Sanderson Stewart All work shall be in accordance with the terms, stipulations, and conditions of the original Contract Documents. If the work herein provided for is Approved by Change Order, the time of completion will be: HDR Recommendation: Recommend Acceptance Do Not Recommend Acceptance Increased Decreased X Unchanged By: HDR Engineering, Inc. by calendar days. Date This change will: X Add Deduct No Change Owner’s Action: $ Accepted Not Accepted General Contractor By: Owner Date Date 148,672.47 x 7 09/29/2020 x ) Sanderson Stewart 09/29/2020 EXHIBIT 2DocuSign Envelope ID: 3A176207-40A4-4300-9481-3958C2FEB486 Job No. Date: 40 Hr Week 45 Hr Week 50 Hr Week 55 Hr Week 60 Hr Week Hours Rate Hours 47 $60.40 $2,838.80 $0.00 47 $50.90 $2,392.30 $0.00 47 $58.10 $2,730.70 $0.00 47 $76.40 $3,590.80 $0.00 47 $58.10 $2,730.70 $0.00 47 $58.10 $2,730.70 $0.00 47 $50.90 $2,392.30 $0.00 47 $56.10 $2,636.70 $0.00 10 $88.40 $884.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $22,927.00 $0.00 $22,927.00 Hrs Wkd Cost / Rate Total Hrs Wkd Cost / Rate Total 47.0 $43.14 $2,027.58 47.0 $166.81 $7,840.07 47.0 $30.33 $1,425.51 47.0 $30.33 $1,425.51 47.0 $218.09 $10,250.23 47.0 $78.45 $3,687.15 47.0 $78.00 $3,666.00 5.0 $225.00 $1,125.00 5.0 $225.00 $1,125.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $32,572.05 %$0.00 % $32,572.05 Sales Tax if Applicable Subtotal Prior to Sales Tax Subtotal Prior to Sales Tax Subtotal Rental Equipment TOTAL EQUIPMENT Sales Tax if Applicable Subtotal COP Equipment Skid Steer 335 Excavator Pickup Pickup 470 Excavator 380 Loader Page 1/2 DAILY FORCE ACCOUNT/BACKCHARGE/EXTRA WORK REPORT 20106 Job Name/Location: Davis Lift Station 9/9/2020 EQUAL OPPORTUNITY EMPLOYER Describe Work Perfomed: Baxter Lane The information contained here-in shall represent the work performed on the date noted. COP Construction LLC reserves the right to include overlooked expenses before final invoice. Labor rates based on composite week hours as marked: LABOR USED - MARKUP INCLUDED Name Classification Straight or Blended Total St. Time Overtime Total Overtime TOTAL Rate Colton Jansma Foreman $2,838.80 Sidney Rains Pipelayer $2,392.30 Chris Wientjes Head Operator $2,730.70 Jon Berens Superintendent $3,590.80 Jason Rhoades Operator $2,730.70 DJ Lindenthal Operator $2,730.70 Laboer $2,392.30 Teamster $2,636.70 Eric Smith Project Manager $884.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 COP EQUIPMENT - MARKUP INCLUDED RENTAL EQUIPMENT - MARKUP INCLUDED $0.00 Description $0.00 Subtotal Labor Subtotal Labor Total Labor Description $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 Dump Truck Generator Generator $0.00 $0.00 $0.00 $0.00 $32,572.05 COPFORM OM10-10 - Daily Force Account/Back Charge/Extra Work Report, Rev. 03/02/2011 DocuSign Envelope ID: 3A176207-40A4-4300-9481-3958C2FEB486 U of M Cost / Rate LS $17,525.00 LS $7,000.00 CY $115.00 % U of M Cost / Rate HR $125.00 Units U of M Cost / Rate Total U of M Cost / Rate Total 6 days $100.00 $600.00 5 Days $700.00 $3,500.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $4,100.00 15 % 15 % 3 % $134,344.05 Add Markup - Material Add Markup - Subcontractor Add Gross Receipts Tax, Bonds & Insurance $145,555.80 $4,366.67 Subtotal **Gross Receipts Tax is included if applicable in your State. Subtotal Total Materials / Expenses $22,927.00 $32,572.05 MATERIALS USED / EXPENSES - WITHOUT MARKUP Itemize Completely Page 2/2 DAILY FORCE ACCOUNT/BACKCHARGE/EXTRA WORK REPORT Phone Service Units Pipe Fitings Additional Flowable Fill Per Diem - Salary Per Diem - Hourly Safety Training Employment Expenses Safety Equip. & Supplies Total Subcontractors $9,336.75 $1,875.00 $12,500.00 Itemize Completely Manholes $62,245.00 $12,500.00 $4,100.00 Total $12,500.00 Units 100.0 Trucking Itemize Completely $62,245.00 Sales Tax if Applicable Subtotal Prior to Sales Tax $0.00 $62,245.00 $0.00 Units 1.0 1.0 328.0 $0.00 $0.00 Total $17,525.00 $7,000.00 $37,720.00 $0.00 $0.00 GENERAL CONDITIONS (Markup Included When Contract Allows) $0.00 $0.00 $0.00 $0.00 $0.00 SUBCONTRACTORS - WITHOUT MARKUP $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 Itemize Completely Small Tools Fuel Storage Sanitary Facillities Dumpster Units Total General Conditions $4,100.00 SUMMARY Labor $0.00 $0.00 $0.00 Subtotal General Conditions Subtotal General Conditions $0.00 Bonus (if applies) Office Rent Site Security Equipment Signature of Project Representative Signature of COP Construction Representative Grand Total $149,922.47 $0.00 $0.00 $0.00 Materials Subcontractor General Conditions Construction Time Affected : Yes No Notes on Contract Time: COPFORM OM10-10 - Daily Force Account/Back Charge/Extra Work Report, Rev. 03/02/2011 5% max $625 $148,672.47 DocuSign Envelope ID: 3A176207-40A4-4300-9481-3958C2FEB486