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HomeMy WebLinkAbout21- Professional Services Agreement - Quest CDN - Bid Services PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this day of February ,2021, 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 QuestCDN , hereinafter referred to as "Consultant", collectively referred to as "Parties". In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree as follows: 1. Purpose: City agrees to enter this Agreement with Consultant to perform for City services described in the Scope of Services attached hereto as "Exhibit A" and by this reference made a part hereof for the Project: We have attached our Services Guide that explains our Scope of Services. 2. Term/Effective Date: This Agreement is effective upon the date of its execution and will terminate upon satisfactory completion of the agreed Scope of Services, which may be amended from time to time by the mutual agreement of the Parties pursuant to terms of this agreement, as determined by the City. 3. Scope of Services: Consultant will perform the work and provide the services in accordance with the requirements of the Scope of Services. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. Consultant may, at its own risk, use or rely upon design elements and information ordinarily or customarily furnished by others, including, but not limited to, specialty contractors, Sub- consultants, manufacturers, suppliers, and publishers of technical standards. 6. Additional Services: If the City requests Consultant to perform any Additional Services not otherwise provided for in this Agreement, City shall so instruct the Consultant in writing, and the Consultant shall perform, or direct its Sub-consultants to perform, such services necessary to complete the Additional Services requested. The City and Consultant shall mutually agree upon a basis of payment for the Additional Services requested prior to the Consultant proceeding with such Additional Services. 7. Times of Payments: The Consultant may submit monthly statements for the Scope of Services and approved Additional Services rendered and for Reimbursable Expenses incurred. The statements shall be based upon Consultant's estimate of the proportion of the total Scope of Services actually completed for each task at the time of billing. 8. Meaning of Terms: a. Additional Services: Additional Services means services resulting from significant changes in the general scope, extent or character of the Project or major changes in documentation previously accepted by the City where changes are due to causes beyond the Consultant's control. Additional Services can also mean providing other services not otherwise provided for in the Agreement that are substantially similar to and generally consistent with the nature of services contained in the Scope of Services. b. Agreement: As used herein the term "this Agreement" refers to the contents of this document and its Attachments and Exhibits attached hereto and referred to as if they were part of one and the same document. C. Direct Labor Costs: Direct Labor Costs used as a basis for payment mean the actual salaries and wages paid to all of the Consultant's personnel engaged directly on the Scope of Services but does not included indirect payroll related costs or fringe benefits. d. Reimbursable Expenses: Reimbursable expenses mean the actual expenses incurred by the Consultant or its Sub-consultants directly in connection with the Project, such as expenses for: transportation and subsistence incidental thereto; toll telephone calls; specialized technology or software subscription charges; reproduction of reports, technical memoranda, drawings, renderings and similar Project-related items. e. Sub-consultants: Sub-consultants means any independent professional associates working on the Project that are not directly employed by the Consultant and have rather been hired by the Consultant to serve a particular role or offer a particular service for the Project. 9. Consultant's Representations: To induce City to enter into this Agreement, Consultant makes the following representations: a. Consultant has familiarized itself with the nature and extent of this Agreement, the Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules, and regulations that in any manner may affect cost, progress or performance of the Scope of Services. b. Consultant represents and warrants to City that it has the experience and ability to perform the services required by this Agreement; that it will perform said services in a professional, competent and timely manner and with diligence and skill; that it has the power to enter into and perform this Agreement and grant the rights granted in it;and that its performance of this Agreement shall not infringe upon or violate the rights of any third party, whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal, state and municipal laws. The City will not determine or exercise control as to general procedures or formats necessary to have these services meet this warranty. 10. Independent Consultant Status/Labor Relations:The parties agree that Consultant is an independent Consultant for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Consultant is not subject to the terms and provisions of the City's personnel policies handbook and may not be considered a City employee for workers' compensation or any other purpose. Consultant is not authorized to represent the City or otherwise bind the City in any dealings between Consultant and any third parties. Consultant shall comply with the applicable requirements of the Workers' Compensation Act, Title 39, Chapter 71, MCA, and the Occupational Disease Act of Montana, Title 39, Chapter 71, MCA. Consultant shall maintain workers' compensation coverage for all members and employees of Consultant's business, except for those members who are exempted by law. 11. Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the fullest extent permitted by law, Consultant agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney's fees and the costs and fees of expert witness and consultants), losses, expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional misconduct of the Consultant; or (ii) any negligent, reckless, or intentional misconduct of any of the Consultant's agents. For the professional services rendered, to the fullest extent permitted by law, Consultant agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees,to the extent caused by the negligence or willful misconduct of the Consultant or Consultant's agents or employees. Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the indemnitee(s) which would otherwise exist as to such indemnitee(s). Consultant's indemnity underthis Section shall be without regard to and without any right to contribution from any insurance maintained by City. Should any indemnitee described herein be required to bring an action against the Consultant to assert its right to defense or indemnification under this Agreement or under the Consultant's applicable insurance policies required below the indemnitee shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines the Consultant was obligated to defend the claim(s) or was obligated to indemnify the indemnitee for a claim(s) or any portion(s) thereof. In the event of an action filed against City resulting from the City's performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. Consultant also waives any and all claims and recourse against the City or its officers, agents or employees, 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 his own fraud,for willful injury to the person or property of another, or for violation of law, whether willful or negligent" as per 28-2-702, MCA. These obligations shall survive termination of this Agreement and the services performed hereunder. In addition to and independent from the above, Consultant shall at Consultant's expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the Consultant in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Consultant in subsection (a)of 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 and Consultant shall furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows: • Workers' Compensation—statutory; • Employers' Liability-$1,000,000 per occurrence; $2,000,000 annual aggregate; • Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Professional Liability- $1,000,000 per claim; $2,000,000 annual aggregate. The above amounts shall be exclusive of defense costs. The City of Bozeman, its officers, agents, and employees, 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 sixty (60) day notice of cancellation or non-renewal. The City must approve all insurance coverage and endorsements prior to the Consultant commencing work. Consultant shall notify City within two (2) business days of Consultant's receipt of notice that any required insurance coverage will be terminated or Consultant's decision to terminate any required insurance coverage for any reason. 12. Termination for Consultant's Fault: a. If Consultant refuses or fails to timely do the work, or any part thereof, or fails to perform any of its obligations under this Agreement, or otherwise breaches any terms or conditions of this Agreement,the City may, by written notice,terminate this Agreement and the Consultant's right to proceed with all or any part of the work ("Termination Notice Due to Consultant's Fault"). The City may then take over the work and complete it, either with its own resources or by re-letting the contract to any other third party. b. In the event of a termination pursuant to this Section 8, Consultant shall be entitled to payment only for those services Consultant 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, Consultant shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 13. Termination for City's Convenience: a. Should conditions arise which, in the sole opinion and discretion of the City, make it advisable to the City to cease performance under this Agreement City may terminate this Agreement by written notice to Consultant ("Notice of Termination for City's Convenience").The termination shall be effective in the manner specified in the Notice of Termination for City's Convenience and shall be without prejudice to any claims that the City may otherwise have against Consultant. b. Upon receipt of the Notice of Termination for City's Convenience, unless otherwise directed in the Notice,the Consultant shall immediately cease performance under this Agreement and make every reasonable effort to refrain from continuing work, incurring additional expenses or costs under this Agreement and shall immediately cancel all existing orders or contracts upon terms satisfactory to the City. Consultant shall do only such work as may be necessary to preserve, protect, and maintain work already completed or immediately in progress. C. In the event of a termination pursuant to this Section 9, Consultant is entitled to payment only for those services Consultant actually rendered on or before the receipt of the Notice of Termination for City's Convenience. d. The compensation described in Section 9(c) is the sole compensation due to Consultant for its performance of this Agreement. Consultant shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity,field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 14. Limitation on Consultant's Damages; Time for Asserting Claim: a. In the event of a claim for damages by Consultant under this Agreement, Consultant's damages shall be limited to contract damages and Consultant hereby expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b. In the event Consultant wants to assert a claim for damages of any kind or nature, Consultant shall provide City with written notice of its claim, the facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, within thirty (30) days of the Consultant becoming aware of the facts and circumstances giving rise to the claim. In the event Consultant fails to provide such notice, Consultant shall waive all rights to assert such claim. 15. Representatives: a. City's Representative:The City's Representative for the purpose of this Agreement shall be Shawn Kohtz or such other individual as City shall designate in writing. Whenever approval or authorization from or communication or submission to City is required by this Agreement, such communication or submission shall be directed to the City's Representative and approvals or authorizations shall be issued only by such Representative; provided, however,that in exigent circumstances when City's Representative is not available, Consultant may direct its communication or submission to other designated City personnel or agents as listed above and may receive approvals or authorization from such persons. b. Consultant's Representative: The Consultant's Representative for the purpose of this Agreement shall be Sam Stull or such other individual as Consultant shall designate in writing. Whenever direction to or communication with Consultant is required by this Agreement, such direction or communication shall be directed to Consultant's Representative; provided, however, that in exigent circumstances when Consultant's Representative is not available, City may direct its direction or communication to other designated Consultant personnel or agents. 16. Permits: Consultant shall provide all notices, comply with all applicable laws, ordinances, rules,and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. 17. Laws and Regulations: Consultant shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers' compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non- discrimination, affirmative action, and utilization of minority and small business statutes and regulations. 18. Nondiscrimination: The Consultant agrees that all hiring by Consultant of persons performing this Agreement shall be on the basis of merit and qualifications. The Consultant will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Consultant 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 Consultant 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. The Consultant shall require these nondiscrimination terms of its Sub-consultants providing services under this agreement. 19. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Consultant shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent engaged in services to the City under this Agreement while on City property or in the performance of any activities under this Agreement. Consultant acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such compliance and Consultant shall be obligated to furnish such proof. The Consultant shall be responsible for instructing and training the Consultant's employees and agents in proper and specified work methods and procedures. The Consultant shall provide continuous inspection and supervision of the work performed. The Consultant is responsible for instructing his employees and agents in safe work practices. 20. Modification and Assignability: This Agreement may not be enlarged, modified, amended or altered except by written agreement signed by both parties hereto. The Consultant may not subcontract or assign Consultant's rights, including the right to compensation or duties arising hereunder, without the prior written consent of City. Any Sub-consultant or assignee will be bound by all of the terms and conditions of this Agreement. 21. Reports/Accountability/Public Information: Consultant agrees to develop and/or provide documentation as requested by the City demonstrating Consultant's compliance with the requirements of this Agreement. Consultant shall allow the City, its auditors, and other persons authorized by the City to inspect and copy its books and records for the purpose of verifying that the reimbursement of monies distributed to Consultant pursuant to this Agreement was used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The Consultant shall not issue any statements, releases or information for public dissemination without prior approval of the City. 22. Non-Waiver: A waiver by either party any default or breach by the other party of any terms or conditions of this Agreement does not limit the other party's right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 23. Attorney's Fees and Costs: In the event it becomes necessary for either Party to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein,then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel to include City Attorney. 24. Taxes: Consultant is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. 25. Dispute Resolution: a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties,the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the Parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised,then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 26. Survival: Consultant's indemnification shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 27. Headings: The headings used in this Agreement are for convenience only and are not be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. 28. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 29. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 30. Binding Effect:This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 31. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. 32. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 33. Integration: This Agreement and all Exhibits attached hereto constitute the entire agreement of the parties. Covenants or representations not contained therein or made a part thereof by reference, are not binding upon the parties. There are no understandings between the parties other than as set forth in this Agreement. All communications, either verbal or written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by reference. 34. Standard of Care: In providing services under this Agreement, Consultant will perform in a manner consistent with the degree of care and skill ordinarily exercised by members of the same profession currently practicing under similar circumstances. If any service should be found to be not in conformance with this standard, the Consultant shall, at the City's request, re- perform the service at its own expense. Consultant shall also, at its own expense, make such changes, modifications or additions to the project which are made necessary as a result of the initial non-performance or the re-performance of services. The City's rights herein are in addition to any other remedies the City may have under the law 35. Ownership and Reuse of Documents: Upon payment in full by City to Consultant for all monies due Consultant under this Agreement, Consultant's work products produced under this Agreement shall become the sole property of the City. The City's use, reuse, alteration, or modification of the work products will be at City's sole risk and without liability or legal exposure to Consultant or to its officers, directors, members, partners, agents, employees, and consultants. In witness whereof, the Parties hereto do make and execute this Agreement. CITY OF BOZEMAN, MONTANA CONSULTANT BY: Q727LBY: 4 k (C y anager) (Vice Pre ident of Sales) DATE: 2 - J 26 -I DATE: 2/1/2021 ATTEST: BY: (City Clerk) r .0 APPROVED AS O M: BY- Co.C' y Attorney) RM;&IL"M Construction Data Network Description of Service The QuestCDN service is a SAAS (Software as a Service)model which allows businesses to access the internet and use the software without actually owning it or downloading it. All functions are used while on-line. The purpose of the QuestCDN service is to provide a facility for QuestCDN Alliance Partners (QAP's)to advertise their construction projects, distribute their specifications and plans in a digital format, online bidding platform, and provide all administrative support functionality associated with this process,including on-line plan holder lists, distribution of digital addenda and distribution of project results. QAP's are provided their own username and password that allows access to the web site to perform these functions all on their own. Also included to QAP is an optional link for their own website which displays their projects (filtered from the QuestCDN.com database)right on their own web site through a facility called the QuestCDN Custom Private Interface (QCPI). QuestCDN provides to the QAP the following functionality: 1. Secure access to the website through their own username and password. 2. Ability to place their own Construction Project Advertisement for Bid. 3. Uploading of their project bid documents in digital format. The QAP sets the download cost for each of their own projects. The minimum cost is $15. (see costs below for additional information.) 4. An on-line Plan Holder list that is automatically updated when a prospective bidder downloads the bidding document and the ability to add additional plan holders to the on-line list for those who acquire paper bidding documents. 5. An addenda uploading function that automatically notifies,via e-mail,the bidders that have acquired digital bidding documents,that an addenda is available for download. 6. A Project Bid Results posting ability. 7. Ability to secure downloads of documents through our protected and hidden project categories. 8. A secure online bid platform. 9. A customized private interface that allows the QAP to place a simple link on their own web site that brings only their projects and project bid results to their own web site. The interface brings the QuestCDN.com functionality and their projects using the colors and logos from the QAP for a true custom interface. 10. Free customer support. 1 u J i 952-233-1632 infa&questcdn.com i 'I [film Construction Data Network QuestCDN provides to the QAP's bidders: 1. The ability to look at the advertisement for bid. 2. The ability to view the bid documents for no charge. 3. The ability to view&print the on-line Plan Holder list. 4. The ability to download the complete (and only complete) digital bidding documents. 5. The ability to acquire any addenda issued for the project. 6. The ability to view the Project Bid Results. 7. The ability to submit their sealed bids electronically. 8. Free support to the bidders helping them learn how to download the files and any basic information for viewing and printing the digital documents. QuestCDN costs: 1. There is no cost to the QAP for any of the above services 2. There is no cost to the QAP for the support, consulting, and training involved in implementing this service. Should it become necessary to charge for any of our consulting services we will advise you and get your consent before proceeding. 3. The cost is charged to the bidders who choose to download the project bidding documents. a. The download cost is set by the QAP for each project. The minimum fee is $15 for the download of bid documents of Construction Projects. The minimum fee is $0 for the download of bid documents of RFPs/RFQs. b. If a QAP chooses to go greater than$15,then QuestCDN shares the revenue with the QAP—first$15 to QuestCDN.com, all the next$15 to QAP and anything greater than $30 is split 50% each. c. If a QAP chooses to go lower than$15,then QuestCDN will bill the QAP for the difference. d. The QAP can offer free downloads,if they choose to. QuestCDN can invoice the QAP for the cost of the downloads. The QAP can choose to be invoiced per download or a flat fee per project. QuestCDN will provide a quote to the QAP if they would like to be billed a flat fee per project or a flat fee per year. 4. There is no charge for viewing the bid documents. 5. There is no charge for viewing or printing the Plan Holder list. 6. There is no additional charge for downloading addenda. 7. There is no charge for viewing the bid results. 952-233-1632 info(c,questcdn.com row ;PA A[a] 01 z I Construction Data Network QuestCDN Online Bidding Fees 1. Plan Holder Pays Option: This option is for construction projects. Using this option,the bidder would pay$30 per download for construction projects ($15 for the bid documents and$15 to submit an online bid).All the Plan Holders would pay this download fee up front and it would cover them for everything involved in the project including online bidding. 2. Bidder Pays Option for Construction Projects: This option is for construction projects. Using this option,it would be$30 for bidders that would like to submit a bid online through QuestCDN. For this option,all the Plan Holders would still pay$15 per download for construction bid documents,but only the bidders that submit a bid online through QuestCDN would pay an additional $30 at the time they submit their bid. 3. Bidder Pays Option for RFPs/RFQs: This option is for RFPs/RFQs.The bidder is charged$15 when they submit an online bid. The bidder is only charged this fee if they submit an online bid. 4. Owner Pays Option: QuestCDN can also set the fee to$0 for the bidders and invoice the QAP for the Online Bidding Fees. 5. Solicitor Pays Option: QuestCDN can also set the fee to $0 for the bidders and invoice the Soliciting Agent for the Online Bidding Fees. i i