HomeMy WebLinkAbout21- Contract Agreement - Precision Concrete Cutting - Sidewalk Grinding ServicesPage 1 of 17
CONTRACT AGREEMENT
THIS AGREEMENT is made and entered into this _____ day of ____________, 202__
(“Effective Date”), by and between the CITY OF BOZEMAN, MONTANA, a self-governing
municipal corporation organized and existing under its Charter and the laws of the State of
Montana, 121 North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230,
Bozeman, MT 59771, hereinafter referred to as “City,” and, PRECISION CONCRETE
CUTTING hereinafter referred to as “Contractor.” The City and Contractor may be referred to
individually as “Party” and collectively as “Parties.”
In consideration of the covenants, agreements, representations, and warranties contained
herein, the parties agree as follows:
1.Work to be Performed: Removing trip hazards on public sidewalk caused by
boulevard tree roots. Contractor shall furnish all the labor, materials, equipment, tools, and services
necessary to perform and complete the Work.
2.Contract Documents: The Contract Documents which comprise the entire
agreement between the City and Contractor as attached to or referenced in this Agreement, are
made a part hereof by this reference and consist of the following:
a.This Agreement.
b.Proof of Insurance and Performance and Payment Bonds.
c.Montana Public Works Standard Specifications, 6th Edition (MPWSS), and as
further amended by the City of Bozeman Modifications to MPWSS.
d.Notice to Proceed.
There are no Contract Documents other than those listed above in this Section 2. The Contract
Documents may not be altered, amended or repealed except by a modification (as defined in the
MPWSS, General Conditions).
3.Time of Performance: Contractor shall begin the Work after receiving a Notice to
Proceed from City and shall complete the Work no later than September 30th 2021. Time is of the
essence of completion of all work and each phase of the Work.
4. Payment:
10th August 1
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a. Upon satisfactory final completion and acceptance of the Work, City shall pay to
Contractor, and Contractor shall accept as full payment for the performance of this
Agreement and the Work, the amount of $40.55 per inch-foot of sidewalk satisfactorily
cut not to exceed [thirty thousand dollars] ($30,000).
b. If work not included within the Scope of Services, Attachment A is requested by
City, such additional work and the related compensation shall be agreed to in writing by
both parties prior to commencement of the additional work (“Change Order”).
c. Contractor shall submit applications for payment in accordance with the Montana
Public Works Standard Specification, _6th_ Edition General Conditions. Applications for
payment will be processed as provided in the General Conditions.
d. Upon acceptance of final payment and for other good and valuable consideration,
Contractor shall and hereby does release and forever discharge City, its officers, agents,
and employees of and from any and all claims, demands, actions, causes of action,
obligations, and liabilities of every kind and character whatsoever, in law and in equity,
whether now known or in the future discovered, arising from or related to this Agreement
or the Work that Contractor may have or assert against City, its officers, agents, and
employees.
e. Contractor warrants and guarantees to City that all Work will be in accordance with
the Contract Documents and will not be defective. Prompt notice of all defects shall be
given to Contractor. All defective Work, whether or not in place, may be rejected,
corrected or accepted as provided in the MPWSS.
5. Inspection and Testing:
a. City has the right to inspect and test any and all Work performed by Contractor.
Contractor shall allow City and its agents access to the Work at all times and shall provide
every reasonable facility for the purpose of such inspection and testing, including
temporarily discontinuing portions of the Work or uncovering or taking down portions of
the finished Work. Any inspection and testing performed by the City and its agents is for
the sole benefit of the City and shall not relieve the Contractor of its duty, responsibility,
and obligation to ensure that the Work strictly complies with the Agreement terms and
conditions and all applicable laws and building and safety codes. City’s inspection and
testing shall not be deemed or considered acceptance by the City of any portion of the
Work. City’s inspection and testing shall not serve to nullify, amend, or waive any
warranties provided by the Contractor under this Agreement.
b. Contractor shall, without charge, replace any material or correct any Work found
by the City or its agents to be defective or otherwise not in compliance with the terms and
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conditions of this Agreement. In the event Contractor fails to replace or correct any
defective work or materials after reasonable written notice by the City to do so, the City
may take such corrective action, either with its own materials and employees or by
retaining any third party to do so, and deduct the cost and expense of such corrective action
from the Contractor’s compensation.
6. Contractor’s Representations and Warranties: In order to induce the City to
enter into this Agreement, Contractor represents and warrants as follows:
a. Contractor has familiarized himself with the nature and extent of the Contract
Documents, Work, the Work site, 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 Work.
b. Contractor has studied carefully all reports of investigations and tests of subsurface
and latent physical conditions at the site or otherwise affecting cost, progress or
performance of the Work.
c. Contractor has made or caused to be made examinations, and investigations as he
deems necessary for the performance of the Work at the contract price, within the contract
time and in accordance with the other terms and conditions of the Contract Documents,
and no additional examinations, investigations, tests, reports or similar data are or will be
required by Contractor for such purposes.
d. Contractor has correlated the results of all such observations, examinations,
investigations, tests, reports and data with the terms and conditions of the Contract
Documents.
e. Contractor and its sureties are liable for the satisfaction and full performance of all
warranties.
7. General Requirements:
a. Contractor Use of Premises. The Contractor shall confine his operations at site of
the proposed work to within the right-of-way or construction easements provided.
b. Safekeeping of Equipment and Materials on Work Site. It shall be understood
that the responsibility for protection and safekeeping of equipment and materials on or
near the site will be entirely that of Contractor and that no claim shall be made against the
City by reason of any act of an employee or trespasser. It shall be further understood that
should any occasion arise necessitating access by the City to the sites occupied by these
stored materials and equipment, the Contractor owning or responsible for the stored
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materials or equipment shall immediately remove same. No materials or equipment may
be placed upon any private property until the property owner has agreed in writing to the
location contemplated by the Contractor to be used for storage.
c. Excavation. Where excavation will be required adjacent to existing structures, the
Contractor shall be solely responsible to maintain the structural integrity of the existing
structures. The Contractor shall take whatever means necessary to insure that the existing
structure is not damaged and if necessary shall install sheet piling. The Contractor shall
repair all damage to the existing structures at his own expense. Any fences destroyed
during construction shall be repaired to the satisfaction of the property owner. Any
delay, additional work, or extra cost to the Contractor caused by existing underground
installations shall not constitute a claim for extra work, additional payment or damages.
d. Protection of Existing Mailboxes, Curbs and Gutters and Driveways. The
Contractor shall take whatever means necessary to insure that the existing mailboxes,
curbs and gutters and driveways are not damaged during construction. If it is necessary
to remove or disturb mailboxes during construction, the Contractor shall repair and
restore the mailboxes at his own expense to the satisfaction of the property owner. Any
curb, gutter, or driveways damaged during construction, not noted to be replaced on the
drawings, shall be replaced by the Contractor at his own expense.
e. Surface Drainage. Water from such sources as surface runoff, dewatering and
flushing of water lines during project construction shall not be allowed to enter into
drainage ways or open areas that will cause flooding of existing structures, street
intersections, or lawn areas.
f. Debris; Restoration. While performing the Work, and as part of the final
completion of the Work, Contractor shall clean up the Work site, including the removal
and satisfactory disposal of all waste, garbage, excess materials, and equipment, and the
performance of any other work necessary to restore the site to at least as good order and
condition as at the commencement of the Work. Any disturbed landscaped areas shall be
properly restored.
g. Work Sequence. The Contractor shall schedule the work to minimize
inconvenience to the City and to adjacent property owners and to minimize interruptions
to utility service. This shall include minimizing obstruction to local traffic especially on
dead end streets. Work shall be scheduled so as to minimize disruptions to local mail
delivery.
h. Traffic Control. The Contractor shall conduct his work so as to interfere as little
as possible with public travel, whether vehicular or pedestrian. Whenever it is necessary
to cross, obstruct, or close roads and walks, the Contractor shall obtain approval of such
actions from the County or Montana Department of Transportation and shall provide and
maintain suitable and safe lighted detours or other temporary expedients for the
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accommodation of public and private travel in accordance with the current edition of the
Manual on Uniform Control Devices for Streets and Highways (MUTCD). The
Contractor shall not occupy the work site or initiate construction until all traffic control
provisions are in place and the City has been so notified. The Contractor shall cooperate
and coordinate his methods with the City’s traffic control plans prior to the disruption of
the normal flow of any traffic.
i. Safety. Safety provisions must be entirely adequate and meet with City, County,
State and Federal regulations to protect the public on affected streets and roads.
1) Barricades and Lights. Prior to the start of construction across roads or walks,
all construction permits shall be obtained, utility companies notified, and
traffic patterns, signing, location of flagmen, barricades and other safety
measures arranged. Providing and maintaining safety barricades, and other
work site safety measures shall be the responsibility of the Contractor and
shall be included in the contract price.
2) All open trenches and other excavations shall be provided with suitable
barriers, signs, and lights to the extent that adequate protection is provided to
the public. Obstructions, such as material piles and equipment, shall be
provided with similar warning signs and lights.
3) All barricades and obstructions shall be illuminated by means of warning
lights from sunset to sunrise. Materials stored upon or alongside public streets
and highways shall be provided with similar warning signs and lights.
4) All barricades, signs, lights and other protective devices shall be installed and
maintained in conformity with applicable statutory requirements and, where
within railroad and highway right-of-way, as required by the authority having
jurisdiction thereover.
5) Work performed within property under the City’s jurisdiction shall have all
barricades, signs, lights and protective devices installed and maintained.
8. Delays and Extensions of Time: If Contractor’s performance of this Agreement
is prevented or delayed by any unforeseen cause beyond the control of the Contractor, including
acts or omissions of the City, Contractor shall, within ten (10) days of the commencement of any
such delay, give the City written notice thereof. Further, Contractor shall, within ten (10) days of
the termination of such delay, give the City written notice of the total actual duration of the delay.
If the City is provided with these required notices and if the City determines that the cause of the
delay was not foreseeable, was beyond the control of the Contractor, and was not a result of the
fault or negligence of the Contractor, then the City will determine the total duration of the delay
and extend the time for performance of the Agreement accordingly. Unless the delay is caused by
the intentional interference of the City with the Contractor’s performance, Contractor shall make
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no claim for damages or any other claim other than for an extension of time as herein provided by
reason of any delays.
9. Suspension:
a. The City may, by written notice to the Contractor and at its convenience for any
reason, suspend the performance of all or any portion of the work to be performed on the
Work (“Notice of Suspension”). The Notice of Suspension shall set forth the time of
suspension, if then known to the City. During the period of suspension, Contractor shall
use its best efforts to minimize costs associated with the suspension.
b. Upon Contractor’s receipt of any Notice of Suspension, unless the notice requires
otherwise, Contractor shall: (1) immediately discontinue work on the date and to the extent
specified in the Notice of Suspension; (2) place no further orders or subcontracts for
materials, services, or equipment; (3) promptly make every reasonable effort to obtain
suspension upon terms satisfactory to City of all orders, subcontracts, and rental
agreements to the extent that they relate to the performance of the work suspended; and (4)
continue to protect and maintain the Work, including those portions on which work has
been suspended.
c. As compensation for the suspended Work, Contractor will be reimbursed for the
following costs, reasonably incurred, without duplication of any item, and to the extent that
such costs directly resulted from the suspension: (1) all reasonably incurred costs for the
demobilization of Contractor’s and subcontractor’s crews and equipment; (2) an equitable
amount to reimburse Contractor for the cost to protect and maintain the Work during the
period of suspension; and (3) an equitable adjustment in the cost of performing the
remaining portion of the work post-suspension if, as a direct result of the suspension, the
cost to Contractor of subsequently performing the remaining work on the Work has
increased or decreased.
d. Upon receipt of written notice by the City to resume the suspended work (“Notice
to Resume Work”), Contractor shall immediately resume performance of the suspended
work as to the extent required in the Notice to Resume Work. Any claim by Contractor for
time or compensation described in Section 9(c) shall be made within fifteen (15) days after
receipt of the Notice to Resume Work and Contractor shall submit a revised Work Schedule
for the City’s review and approval. Contractor’s failure to timely make such a claim shall
result in a waiver of the claim.
e. No compensation described in Section 9(c) shall be paid and no extension of time
to complete the Work shall be granted if the suspension results from Contractor’s non-
compliance with or breach of the terms or requirements of this Agreement.
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10. Termination for Contractor’s Fault:
a. If Contractor refuses or fails to timely do the work, or any part thereof, or fails to
perform any of its obligations under this Agreement, or otherwise breaches any terms or
conditions of this Agreement, the City may, by written notice, terminate this Agreement
and the Contractor’s right to proceed with all or any part of the Work (“Termination Notice
Due to Contractor’s Fault”). The City may then take over the Work and complete it, either
with its own resources or by re-letting the contract to any other third party, and may
immediately take possession of and use such materials, appliances, tools, and equipment
as may be on the site and which may be necessary for the completion of the Work.
b. In the event of a termination pursuant to this Section 10, Contractor shall be entitled
to payment only for those services Contractor actually rendered. In the case of a lump sum
or unit price contract, Contractor shall not be entitled to any further payment until the Work
has been completed. Upon completion of the Work, if the unpaid balance of the
Contractor’s compensation exceeds the cost to the City of completing the work, including
all costs paid to any subcontractors or third parties retained by the City to complete the
Work and all administrative costs resulting from the termination (“City’s Cost for
Completion”), such excess shall be paid to the Contractor. If the City’s Cost for
Completion exceeds the unpaid balance of the Contractor’s compensation, then Contractor
and its sureties shall be liable for and shall pay the difference, plus interest at the rate
applicable to court judgments, to the City.
c. Any termination provided for by this Section 10 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 10, Contractor shall, under no
circumstances, be entitled to claim or recover consequential, special, punitive, lost business
opportunity, lost productivity, field office overhead, general conditions costs, or lost profits
damages of any nature arising, or claimed to have arisen, as a result of the termination.
11. 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 work on the Work, the City may terminate this Agreement
by written notice to Contractor (“Notice of Termination for City’s Convenience”). The
termination shall be effective in the manner specified in the Notice of Termination for
City’s Convenience and shall be without prejudice to any claims that the City may
otherwise have against Contractor.
b. Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise
directed in the Notice, the Contractor shall immediately cease work on the Work,
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discontinue placing orders for materials, supplies, and equipment for the Work, and make
every reasonable effort to cancel all existing orders or contracts upon terms satisfactory to
the City. Contractor shall do only such work as may be necessary to preserve, protect, and
maintain work already completed, in progress, or in transit to the construction site.
c. In the event of a termination pursuant to this Section 11, Contractor is entitled to
payment only for those services Contractor actually rendered and materials actually
purchased or which Contractor has made obligations to purchase on or before the receipt
of the Notice of Termination for City’s Convenience, and reasonably incurred costs for
demobilization of Contractor’s and any subcontractor’s crews. It is agreed that any
materials that City is obligated to purchase from Contractor will remain the City’s sole
property.
d. The compensation described in Section 11(c) is the sole compensation due to
Contractor for its performance of this Agreement. Contractor shall, under no
circumstances, be entitled to claim or recover consequential, special, punitive, lost business
opportunity, lost productivity, field office overhead, general conditions costs, or lost profits
damages of any nature arising, or claimed to have arisen, as a result of the termination.
12. Limitation on Contractor’s Damages; Time for Asserting Claim:
a. In the event of a claim for damages by Contractor under this Agreement,
Contractor’s damages shall be limited to contract damages and Contractor hereby expressly
waives any right to claim or recover consequential, special, punitive, lost business
opportunity, lost productivity, field office overhead, general conditions costs, or lost profits
damages of any nature or kind.
b. In the event Contractor wants to assert a claim for damages of any kind or nature,
Contractor shall provide City with written notice of its claim, the facts and circumstances
surrounding and giving rise to the claim, and the total amount of damages sought by the
claim, within ten (10) days of the facts and circumstances giving rise to the claim. In the
event Contractor fails to provide such notice, Contractor shall waive all rights to assert
such claim.
13. Representatives and Notices:
a. City’s Representative: The City’s Representative for the purpose of this
Agreement shall be __Kellen Gamradt__ 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
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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 and may receive approvals or authorization from
such persons.
b. Contractor’s Representative: The Contractor’s Representative for the purpose of
this Agreement shall be __Aleshea McDonald___ or such other individual as Contractor
shall designate in writing. Whenever direction to or communication with Contractor is
required by this Agreement, such direction or communication shall be directed to
Contractor’s Representative; provided, however, that in exigent circumstances when
Contractor’s Representative is not available, City may direct its direction or
communication to other designated Contractor personnel or agents.
c. Notices: All notices required by this Agreement shall be in writing and shall
be provided to the Representatives named in this Section. Notices shall be deemed given
when delivered, if delivered by courier to Party’s address shown above during normal
business hours of the recipient; or when sent, if sent by email or fax (with a successful
transmission report) to the email address or fax number provided by the Party’s
Representative; or on the fifth business day following mailing, if mailed by ordinary mail
to the address shown above, postage prepaid.
14. Locating Underground Facilities: Contractor shall be responsible for obtaining
and determining the location of any underground facilities, including but not limited to, the
location of any pipelines or utility supply, delivery, or service lines in accordance with the
provisions of §69-4-501, et seq., Montana Code Annotated (MCA). Contractor shall make every
effort to avoid damage to underground facilities and shall be solely responsible for any damage
that may occur. If City personnel assume responsibility for locating any underground facilities,
this fact shall be noted in writing prior to commencement of such location work.
15. Permits: Contractor shall provide all notices, comply with all applicable laws,
ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of
Bozeman business license, and inspections from applicable governmental authorities, pay all fees
and charges in connection therewith, and perform all surveys and locations necessary for the timely
completion of the Work.
16. Ownership of Documents; Indemnification: All plans, designs, drawings,
specifications, documents, sample results and data, in whatever medium or format, originated or
prepared by or for Contractor in contemplation of, or in the course of, or as a result of this
Agreement or work on the Work, shall be promptly furnished to the City (“City Documents and
Information”). All City Documents and Information shall be the exclusive property of the City
and shall be deemed to be works-for-hire. Contractor hereby assigns all right, title, and interest in
and to the City Documents and Information, including but not limited to, all copyright and patent
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rights in and to the City Documents and Information. Neither party grants to the other any express
or implied licenses under any patents, copyrights, trademarks, or other intellectual property rights,
except to the extent necessary to complete its obligations to the other under this Agreement.
17. Laws and Regulations: Contractor shall comply fully with all applicable state and
federal laws, regulations, and municipal ordinances including, but not limited to, Montana
Contractor Registration requirements, Montana Contractors Gross Receipts Tax (Title 15, Chapter
50, MCA), 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 and Equal Pay: The Contractor agrees that all hiring by
Contractor of persons performing this Agreement shall be on the basis of merit and qualifications.
The Contractor will have a policy to provide equal employment opportunity in accordance with all
applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor
will not refuse employment to a person, bar a person from employment, or discriminate against a
person in compensation or in a term, condition, or privilege of employment because of race, color,
religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual
orientation, gender identity, physical or mental disability, except when the reasonable demands of
the position require an age, physical or mental disability, marital status or sex distinction. The
Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section
140, Title 2, United States Code, and all regulations promulgated thereunder.
Contractor represents it is, and for the term of this Agreement will be, in compliance with
the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal
Pay Act). Contractor must report to the City any violations of the Montana Equal Pay Act that
Contractor has been found guilty of within 60 days of such finding for violations occurring during
the term of this Agreement.
Contractor shall require these nondiscrimination terms of its subcontractors providing
services under this Agreement.
19. Intoxicants; DOT Drug and Alcohol Regulations: Contractor shall not permit or
suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, upon the site
of the Work. Contractor acknowledges it is aware of and shall comply with its responsibilities and
obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug
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and alcohol misuse prevention plans and related testing. City shall have the right to request proof
of such compliance and Contractor shall be obligated to furnish such proof.
The Contractor shall be responsible for instructing and training the Contractor's employees
and agents in proper and specified work methods and procedures. The Contractor shall provide
continuous inspection and supervision of the work performed. The Contractor is responsible for
instructing its employees and agents in safe work practices.
20. Labor Relations:
a. In the event that, during the term of this Agreement and throughout the course of
Contractor’s performance of the Work, any labor problems or disputes of any type arise or
materialize which in turn cause any work on the Work to cease for any period of time,
Contractor specifically agrees to take immediate steps, at its own expense and without
expectation of reimbursement from City, to alleviate or resolve all such labor problems or
disputes. The specific steps Contractor shall take to resume work on the Work shall be left
to the discretion of Contractor; provided, however, that Contractor shall bear all costs of
any related legal action. Contractor shall provide immediate relief to the City so as to
permit the work on the Work to resume and be completed within the time frames set forth
in the Construction Schedule at no additional cost to City.
b. Contractor shall indemnify, defend, and hold the City harmless from any and all
claims, demands, costs, expenses, damages, and liabilities arising out of, resulting from, or
occurring in connection with any labor problems or disputes or any delays or stoppages of
work associated with such problems or disputes.
21. Subcontractors:
a. Contractor may employ subcontractors for any part of the Work. Contractor shall
provide City with a list of all subcontractors employed.
b. Contractor remains fully responsible for the acts and omissions of any
subcontractor, just as Contractor is for its own acts and omissions, and Contractor shall
remain fully responsible and liable for the timely completion of the Work.
c. Contractor is solely liable for any and all payments to subcontractors. Contractor
shall hold all payments received from the City in trust for the benefit of subcontractors,
and all such payments shall be used to satisfy obligations of the Work before being used
for any other purpose. Contractor shall make any payments due to any subcontractor within
seven (7) days of Contractor’s receipt of payment, including a proportional part of the
retainage Contractor has received from the City. In the event of a dispute regarding any
subcontractor’s invoice, Contractor shall promptly pay the undisputed amount to the
subcontractor and notify the subcontractor in writing of the amount in dispute and the
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reasons for the dispute. Any withholding of payment must comply with the requirements
of §28-2-2103, MCA. In the event Contractor is unwilling or unable to make timely and
proper payment to any subcontractor, City may elect to withhold any payment otherwise
due to Contractor and upon seven (7) days’ written notice to Contractor, may pay
subcontractor by direct or joint payment.
24. Indebtedness and Liens: Before City may make any final payment to Contractor,
Contractor shall furnish City with satisfactory proof that there are no outstanding debts or liens in
connection with the Work. If the Contractor allows any indebtedness to accrue to subcontractors
or others during the progress of the work, and fails to pay or discharge the same within five (5)
days after demand, then City may either withhold any money due to Contractor until such
indebtedness is paid or apply the same towards the discharge of the indebtedness. If any lien or
claim is filed or made by any subcontractor, material supplier, or any other person, the Contractor
shall immediately notify the City and shall cause the same to be discharged of record within thirty
(30) days after its filing.
25. Indemnification; Insurance; Bonds:
a. Contractor agrees to release, defend, indemnify, and hold harmless the City, its
agents, representatives, employees, and officers (collectively referred to for purposes of
this Section as the City) from and against any and all claims, demands, actions, fees and
costs (including attorney’s fees and the costs and fees of 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 Contractor; or (ii) any negligent,
reckless, or intentional misconduct of any of the Contractor’s agents.
b. Such obligations shall not be construed to negate, abridge, or reduce other rights or
obligations of indemnity that would otherwise exist. The indemnification obligations of
this Section must not be construed to negate, abridge, or reduce any common-law or
statutory rights of the City as indemnitee(s) which would otherwise exist as to such
indemnitee(s).
c. Contractor’s indemnity under this Section shall be without regard to and without
any right to contribution from any insurance maintained by City.
d. Should the City be required to bring an action against the Contractor to assert its
right to defense or indemnification under this Agreement or under the Contractor’s
applicable insurance policies required below the City shall be entitled to recover reasonable
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costs and attorney fees incurred in asserting its right to indemnification or defense but only
if a court of competent jurisdiction determines the Contractor was obligated to defend the
claim(s) or was obligated to indemnify the City for a claim(s) or any portion(s) thereof.
e. 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.
f. Contractor also waives any and all claims and recourse against the City, including
the right of contribution for loss or damage to person or property arising from, growing out
of, or in any way connected with or incident to the performance of this Agreement except
“responsibility for [City’s] own fraud, for willful injury to the person or property of
another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA.
g. These obligations shall survive termination of this Agreement and the services
performed hereunder.
h. In addition to and independent from the above, Contractor shall at Contractor’s
expense secure insurance coverage through an insurance company or companies duly
licensed and authorized to conduct insurance business in Montana which insures the
liabilities and obligations specifically assumed by the Contractor in this Section. The
insurance coverage shall not contain any exclusion for liabilities specifically assumed by
the Contractor in this Section. The insurance shall cover and apply to all claims, demands,
suits, damages, losses, and expenses that may be asserted or claimed against, recovered
from, or suffered by the City without limit and without regard to the cause therefore and
which is acceptable to the City and Contractor shall furnish to the City an accompanying
certificate of insurance and accompanying endorsements in amounts not less than as shown
below:
Workers’ Compensation – not less than statutory limits;
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;
Products and Completed Operations – $1,000,000;
Automobile Liability - $1,000,000 property damage/bodily injury; $2,000,000
annual aggregate (all owned, hired, non-owned vehicles);
Builder’s Risk/Property Insurance at least as broad as that provided by the ISO
special causes of loss form (CP10 30) naming at a minimum the City in an
amount equal to greater of Contractor’s compensation or full replacement value of
the work (covering at a minimum all work, buildings, materials and equipment,
whether on site or in transit, loss due to fire, lightening, theft, vandalism,
malicious mischief, earthquake, collapse, debris removal, demolition occasioned
by enforcement of laws, water damage, flood if site within a flood plain, repair or
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replacement costs, testing and start-up costs) on an all risk coverage basis. This
insurance must include waivers of subrogation between the City and Contractor to
the extent that damage to the Work or City Hall is covered by other insurance;
Owner’s and Contractor’s Protective Liability: one policy designating the City
(including its agents, representatives, employees, and officers) as the insured and
another independent policy designated the City’s Representative (including its
consultants, consultants, agents and employees) as the insured on the declarations
with both policies covering: (i) operations performed by the Contractor under this
Agreement for the City; and (ii) the City’s and City’s Representatives acts or
omissions, including negligent acts, in connection with its general supervision of
the work of the Contractor’s and its subcontractors - $1,000,000 per occurrence;
$2,000,000 aggregate;
Contractual Liability Insurance (covering the Contractor’s indemnity
obligations described in this Agreement) - $1,000,000 per occurrence $2,000,000
aggregate
The amounts of insurance provided shall be exclusive of defense costs. The City of
Bozeman shall be endorsed as an additional or named insured on a primary non-
contributory basis on both the Commercial General and Automobile Liability policies. The
insurance and required endorsements must be in a form suitable to City and shall include
no less than a thirty (30) day notice of cancellation or non-renewal. Contractor shall notify
City within two (2) business days of Contractor’s receipt of notice that any required
insurance coverage will be terminated or Contractor’s decision to terminate any required
insurance coverage for any reason.
The City must approve all insurance coverage and endorsements prior to the
Contractor commencing work.
26. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all
appropriate employee withholdings. Contractor understands that all contractors or subcontractors
working on a publicly funded project are required to pay or have withheld from earnings a license
fee of one percent (1%) of the gross contract price if the gross contract price is Five Thousand
Dollars ($5,000) or more. This license fee is paid to the Montana Department of Revenue.
27. 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
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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 shall be resolved in a court of
competent jurisdiction in compliance with the Applicable Law provisions of this
Agreement.
28. Attorney 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..
29. Survival: Contractor’s indemnification and warranty obligations shall survive the
termination or expiration of this Agreement for the maximum period allowed under applicable
law.
30. 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.
31. Waiver: A waiver by City of any default or breach by Contractor of any covenants,
terms, or conditions of this Agreement does not limit City’s right to enforce such covenants, terms,
or conditions or to pursue City’s rights in the event of any subsequent default or breach.
32. Severability: If any portion of this Agreement is held to be void or unenforceable,
the balance thereof shall continue in effect.
33. Applicable Law: The parties agree that this Agreement is governed in all respects
by the laws of the State of Montana.
34. Binding Effect: This Agreement is binding upon and inures to the benefit of the
heirs, legal representatives, successors, and assigns of the parties.
35. Amendments: This Agreement may not be modified, amended, or changed in any
respect except by a written document signed by all parties.
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36. 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.
37. Counterparts: This Agreement may be executed in counterparts, which together
constitute one instrument.
38. Assignment: Contractor may not assign this Agreement in whole or in part without
the prior written consent of the City. No assignment will relieve Contractor of its responsibility
for the performance of the Agreement and the completion of the Work. Contractor may not assign
to any third party other than Contractor’s subcontractors on the Work, the right to receive monies
due from City without the prior written consent of City.
39. Authority: Each party represents that it has full power and authority to enter into
and perform this Agreement and the person signing this Agreement on behalf of each party has
been properly authorized and empowered to sign this Agreement.
40. Independent Contractor: The parties agree and acknowledge that in the
performance of this Agreement and the completion of the Work, Contractor shall render services
as an independent contractor and not as the agent, representative, subcontractor, or employee of
the City. The parties further agree that all individuals and companies retained by Contractor at all
times will be considered the agents, employees, or independent contractors of Contractor and at
no time will they be the employees, agents, or representatives of the City.
41. 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.
42. 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: 412958DE-600A-432A-BCA2-CFDD3C7166A4
DocuSign Envelope ID: 412958DE-600A-432A-BCA2-CFDD3C7166A4