HomeMy WebLinkAbout21- Professional Services Agreement - Advanced Engineering & Enviornmental Services - Lyman Resevoir & Tramission Main - ARPA Grant ApplicationPROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this day of , 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 a mailing
address of 1288 N 14th Ave #103, Bozeman, MT 59715, 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
contained in Section 3 for the Project: Lyman Reservoir & Transmission Main – ARPA
Competitive Grant Application.
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 shall prepare and provide to the City all required materials
set forth by the State of Montana necessary for the City to submit an ARPA competitive grant
application for the project titled in Section 1. Consultant will prepare any needed support
materials that in the professional opinion and judgment of the Consultant bolster the grant
application. Consultant will coordinate with the City in preparing said materials to the degree
needed to develop the scope and financial plan of the overall project for which the ARPA grant is
sought.
Consultant will perform the work and provide the services in accordance with 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.
4.Payment for Scope of Services: City agrees to pay Consultant for the completion of the
Scope of Services a lump sum cost of $10,000. Additional charges for completion of the Scope
of Services in excess of the agreed amount must be authorized by the City in writing prior to the
Consultant incurring any additional charges.
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5. Reimbursable Expenses: As defined in Section 8 of this Agreement, for completion of the
Scope of Services and approved Additional Services, reimbursable expenses are included within
the lump sum cost provided for in Section 4 of this Agreement.
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 in
writing upon the scope and fee basis of Additional Services prior to their commencement.
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 Rates: Direct Labor Rates used as a basis for payment mean the
actual salaries and wages paid to all of the Consultant’s personnel engaged directly on any agreed
Additional Services, but does not include rates for indirect fringe benefits, indirect overhead
expenses, and profit.
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.
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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.
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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 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 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;
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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 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.
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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 Brian Heaston, PE 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 Scott Buecker, PE or such other individual as Consultant shall designate
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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 & 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.
Consultant shall require these nondiscrimination and equal pay 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
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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
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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
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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: BY:
(City Manager) (insert title of signatory)
DATE: DATE:
ATTEST:
BY:
(City Clerk)
APPROVED AS TO FORM:
BY:
(City Attorney)
Operations Manager
July 27, 2021
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8/11/2021