HomeMy WebLinkAbout21- Professional Services Master Task Order Agreement - Advanced Engineering and Enviornmental Services, LLC - SCADA On-Call Services
Professional Services Master Task Order Agreement for SCADA On-Call Engineering Services
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PROFESSIONAL SERVICES MASTER TASK ORDER AGREEMENT
THIS AGREEMENT is made and entered into this ________________________, 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, ADVANCED ENGINEERING AND ENVIRONMENTAL SERVICES, LLC with
mailing address 1288 North 14th Ave. Unit 103 Bozeman, MT 59715 hereinafter referred to as
“Consultant.”
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 into this agreement with Consultant to provide a range
of professional and technical services related to operations and maintenance of the City of Bozeman’s
Supervisory Control and Data Acquisition (SCADA) system, including but not necessarily limited to
design, equipment selection, bidding, construction administration, process troubleshooting and
optimization, industrial automation and controls, and Safe Drinking Water Act compliance to the
extent the SCADA system applies to said Act, as requested by the City through issuance of individual
Task Orders on an as needed and requested basis. The services assigned will generally be referred to
as Bozeman SCADA On-Call Services or as otherwise specified in each specific Task Order.
2. Term/Effective Date: This Agreement is effective upon the date of its execution
(Effective Date) and will expire three (3) years from the Effective Date unless extended or terminated
as specifically provided for within the agreement.
3. Scope of Work: Consultant will perform the work and provide the services in
accordance with the specific services and corresponding cost and schedule as mutually agreed upon by
City and Consultant and included in each individual Task Order executed under the authority of this
Agreement. Task Orders shall be in a format similar to EXHIBIT A, attached and made part of this
Agreement. For conflicts between this Agreement and the Scope of Services, unless specifically
provided otherwise, the Agreement governs. Consultant may use or rely upon design elements and
information ordinarily or customarily furnished by others, including, but not limited to, specialty
contractors, manufacturers, suppliers, and the publishers of technical standards.
4. Payment: The terms of compensation to Consultant shall be agreed upon and included
in each Task Order. City agrees to pay Consultant the amount specified in the individual Task Orders.
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Any alteration or deviation from the described services that involves additional costs above the
Agreement amount will be performed by Consultant 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. Consultant’s Representations: To induce City to enter into this Agreement,
Consultant makes the following representations:
a. For each individual Task Order, Consultant will familiarized itself with the nature and
extent of the assignment, 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 and will provide a mutually agreeable Scope of Services for each Task Order.
b. Consultant represents 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 ordinarily used by member in the same profession
practicing at the same time and in the same locality; 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 standard of care.
6. 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.
Consultant 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 Consultants.
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Consultant shall indemnify, 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.
7. 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 and 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; (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. Defense obligation under this
indemnity paragraph means only the reimbursement of reasonable defense costs to the proportionate
extent of the Consultant’s actual liability obligation hereunder.
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 under this 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
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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 or caused by the “negligence,
recklessness, or intentional misconduct” of the City or the City’s officers, employees, or agents as per
28-2-2111 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 and annual aggregate;
· Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual
aggregate;
· Automobile Liability - $1,000,000 property damage/bodily injury; $1,000,000 annual
aggregate; and
· Professional Liability - $2,000,000 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 thirty
(30) 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)
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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.
The City must approve all insurance coverage and endorsements prior to the Consultant
commencing work.
8. Termination for Consultant’s Fault:
a. If Consultant refuses or fails to do the work in a timely manner, 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 or any individual Task Order under 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.
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 or any Task Order under 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 or any Task Order under this Agreement and make every reasonable effort to
refrain from continuing work, incurring additional expenses or costs under this Agreement or
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any Task Order 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.
10. 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 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.
11. Representatives:
a. City’s Representative: The City’s Representative for the purpose of this
Agreement shall be Zeb Breuckman, PE, SCADA Manager or such other individual as City
shall designate in writing. Whenever approval or authorization from or communication or
submission to City is required by this Agreement, such communication or submission shall be
directed to Zeb Breuckman, PE, SCADA Manager as 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
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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 James Sletten, I&C Senior Technician 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.
12. 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.
13 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.
14. Nondiscrimination & Equal Pay: 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.
Consultant 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).
Consultant must report to the City any violations of the Montana Equal Pay Act that Consultant has
been found guilty of within 60 days of such finding for violations occurring during the term of this
Agreement.
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Consultant shall require these nondiscrimination and equal pay terms of its Sub-consultants
providing services under this agreement.
15. 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 their 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 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.
17. 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.
18. 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.
19. Attorney’s Fees and Costs: That in the event it becomes necessary for either Party of
this Agreement 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
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to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel to include
City Attorney.
20. Taxes: Consultant 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: Consultant’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
to 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
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constitute one instrument.
29. 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.
30. Extensions: this Agreement may, upon mutual agreement, be extended for a period
of one fiscal year by written agreement of the Parties. In no case, however, may this Agreement run
longer than April 9, 2026.
**** END OF AGREEMENT EXCEPT FOR SIGNATURES ****
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IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year
first above written.
CITY OF BOZEMAN, MONTANA CONSULTANT
BY: BY:
(City Manager) (Operations Manager)
DATE: DATE:
ATTEST:
BY:
(City Clerk)
APPROVED AS TO FORM:
BY:
(City Attorney)
May 7, 2021
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