HomeMy WebLinkAboutRFQ - General Contractor - Swim Center RenovationPage 1 of 39
REQUEST FOR QUALIFICATIONS (RFQ)
BOZEMAN SWIM CENTER RENOVATION
GENERAL CONTRACTOR / CONSTRUCTION MANAGER
SERVICES
CITY OF BOZEMAN
Bozeman, MT
City of Bozeman
PO Box 1230
Bozeman, MT 59771-1230
December 2022
Page 2 of 39
NOTICE IS HEREBY given that the City of Bozeman (City) is seeking qualifications from General Contractor
/ Construction Manager (GC/CM) firms to undertake Preconstruction and Construction services for the
renovation of the Bozeman Swim Center.
Copies of the Request for Qualifications are available on the City’s website at
https://www.bozeman.net/government/city-clerk/bids-rfps-rfqs.
All proposals must be provided as a single, searchable PDF document file and be submitted digitally as an
email attachment to the RFP Recipient email address below. Respondents are advised that Recipient’s
email attachment size limit is 25MB and that only one PDF file will be allowed per response. The subject
line of the transmittal email shall clearly identify the RFP title, company name and due date/time. File
sizes greater than 25MB in size may be uploaded to bzncloud.bozeman.net upon special arrangement of
the Recipient; however, it is the respondent’s sole responsibility to ensure the file upload is completed,
and that the Recipient is separately notified via email of same, prior to the given deadline.
Deliver RFPs via email to the City Clerk by January 13, 2022 at 2:00 PM MST. It is the sole responsibility of
the proposing party to ensure that proposals are received prior to the closing time as late submittals will
not be accepted and will be returned unopened.
The email address for submission is: agenda@bozeman.net
NON-DISCRIMINATION AND EQUAL PAY
The City of Bozeman is an Equal Opportunity Employer.
Discrimination in the performance of any agreement awarded under this RFQ on the basis of race, color,
religion, creed, sex, age, marital status, national origin, or actual or perceived sexual orientation, gender
identity or disability is prohibited. This prohibition shall apply to the hiring and treatment of the awarded
entity’s employees and to all subcontracts.
As such, each entity submitting under this notice shall include a provision wherein the submitting entity,
or entities, affirms in writing it will not discriminate on the basis of race, color, religion, creed, sex, age,
marital status, national origin, or because of actual or perceived sexual orientation, gender identity or
disability and which also recognizes the eventual contract will contain a provision prohibiting
discrimination as described above and that this prohibition on discrimination shall apply to the hiring and
treatment of the submitting entity’s employees and to all subcontracts.
In addition, pursuant to City Commission Resolution 5169, the entity awarded a contract under this RFQ
and any subcontractors must abide by the Equal Pay Act of 1963 and Section 39-3-104, MCA (the
Montana Equal Pay Act), and affirm it will abide by the above and that it has visited the State of
Montana Equal Pay for Equal Work “best practices” website,
https://equalpay.mt.gov/BestPractices/Employers, or equivalent “best practices publication and has
read the material.
Failure to comply with the above may be cause for the City to deem the submittal non-responsive.
Any administrative questions regarding proposal procedures should be directed to: Mike Maas, City Clerk
(406) 582-2321, agenda@bozeman.net.
Questions relating to the RFQ should be directed to: Max Ziegler, Facilities Project Coordinator, (406) 582-
2439, wziegler@bozeman.net.
DATED at Bozeman, Montana, this December 4, 2022.
Mike Maas
City Clerk
City of Bozeman
For publication on:
Sunday, December 4, 2022
Sunday, December 18, 2022
Sunday, January 8, 2022
I. INTRODUCTION
The City of Bozeman (Owner), is seeking qualifications from General Contractor / Construction Manager
(GC/CM) firms to undertake Preconstruction and Construction services for the renovation of the Bozeman Swim
Center (the “Project”).
The Owner intends to enter into a GC/CM contract with the selected GC/CM firm that will include
preconstruction services and construction services through completion of the Project. When selected, the
GC/CM will function as part of a team composed of the Owner, its architect (Cushing Terrell), and others
as determined by the Owner.
This RFQ shall not commit the Owner to enter into an agreement, to pay any expenses incurred in
preparation of any response to this request, or to procure or contract for any supplies, goods or services.
The Owner reserves the right to accept or reject all responses received as a result of this RFQ if it is in the
Owner’s best interest to do so.
This procurement is governed by the laws of the State of Montana and venue for all legal proceedings
shall be in the 18th Judicial District Court, Gallatin County. By offering to perform services under this RFQ,
all Submitters agree to be bound by the laws of the State of Montana and of the Owner, including, but not
limited to, applicable wage rates, payments, gross receipts taxes, building codes, equal opportunity
employment practices, safety, non-discrimination, etc.
II. SCOPE OF PROJECT - PROJECT BACKGROUND AND DESCRIPTION
Introduction
In November 2021, voters of the City of Bozeman approved funding for the renovation of several aging
recreation facilities, including the Bozeman Swim Center. The Swim Center is a public natatorium
situated on the Bozeman High School campus and featuring Montana’s only 50M indoor pool. One of
the City’s most used recreation facilities, the Swim Center provides lap swimming to the public, a
training and competition venue for high school and independent athletic teams, and aquatics classes
providing a variety of training opportunities, such as SCUBA and kayaking.
Constructed in 1974, the Swim Center has not seen significant improvements since its last renovation in
1987. As a result many of the building’s systems and finishes have become deficient over the years. The
renovation of the Swim Center is intended to extend the useful life of the structure by 25 years while
improving the user experience for swimmers. The City is seeking a General Contractor / Construction
Manager to bring this project to completion, including providing preconstruction services and general
contractor services.
The planned renovation of the Swim Center is to include the following:
• Full replacement and redesign of HVAC system
• Replacement or refurbishment of ceramic tile pool deck
• Replacement of suspended ceiling tiles and repair to ceiling grid
• Redesign and replacement of lighting system with LED fixtures
• Restoration of the swimming pool’s plaster shell and perimeter drain gutters
Early in the planning process for this renovation project structural deficiencies in the roof truss and CMU
wall systems were identified and emergency repairs were conducted in the summer of 2022, with
additional envelope repair work scheduled for the spring of 2023. Once the emergency repair work is
completed in the summer of 2023, the originaly planned renovation is to be carried out in the summer
of 2024.
The City seeks to minimize construction related closures of the facility to the greatest extent possible
throughout this project. When feasible, work is to be done while the facility is operating. Idealy facility
closures will be limited to the operating season of the City’s outdoor pool (June-September) to avoid
impacting user groups.
The project scope is to undertake all preconstruction and construction services for the renovation of the
Bozeman Swim Center in coordination with the Project Architect.
For architectural and engineering services on the Project, the Owner has selected:
Cushing Terrell
411 E. Main St. Ste. 101
Bozeman, MT 59715
(406) 556-7100
III. SCOPE OF SERVICES
Preconstruction Services:
Preconstruction services will be provided on a cost reimbursement basis up to a stated maximum. The
specific scope of preconstruction services will be negotiated prior to signing the GC/CM contract. In
general, preconstruction services are anticipated to include the following:
1. Participation in all design, coordination, and building committee meetings;
2. Review of all designs for constructability;
3. Work with the Owner and design team on phasing, scheduling, and other strategies to complete
construction of the Project on or before the stated date;
4. Coordination and gathering of input from subcontractors regarding constructability;
5. Review and cost evaluation at each phase of design taking into consideration schedule, phasing
and market conditions;
6. Consult with, advise, assist, and provide recommendations to the Owner and design team on all
aspects of the planning and design of the work;
7. Provide information, estimates, schemes, and participate in decisions regarding construction
materials, methods, systems, phasing, sustainability and costs to assist in determinations which
are aimed at providing the highest quality building, constructed using the most sustainable
construction materials and practices, within the budget and schedule;
8. Actively participate in a value engineering process anticipated to be held at the end of design
development;
9. Review the programming/planning and site selection documents and provide input and advice
regarding scope and cost of the Project;
10. Review in-progress design and construction documents and provide input and advice on
construction feasibility, alternative materials, costs and availability;
11. Review completed design and construction documents prior to subcontractor/supplier
bidding/selection and suggest modifications to improve completeness and clarity and to
eliminate construction change requests due to inconsistencies or omissions in the construction
documents;
12. Provide input to the Owner and the design team regarding construction market bidding climate,
status of key subcontract markets, and other relevant economic conditions;
13. Recommend and actively source labor and material resources necessary to complete the project
construction;
14. Provide input to the Owner and the design team regarding long lead time materials and
equipment, impact on the construction schedule and strategies for mitigating the impact;
15. Prepare construction cost estimates for the Project at the schematic, design development and
construction document design phases and, if appropriate, at other times throughout of the work;
16. Notify the Owner and design team immediately if construction cost estimates appear to be
exceeding the construction budget, and reconcile each cost estimate with the Architect’s cost
estimate, if required;
17. Furnish a final construction cost estimate for the Owner’s review and approval;
18. Develop a preliminary construction schedule;
19. Develop all subcontractor/supplier bid packages and perform all advertising and receipt of
subcontractor/supplier bids;
20. Obtain bids per trade for the Owner’s review, unless otherwise approved by Owner in order to
meet resourcing requirements, per GC/CM Contract. Self-performed work must be bid against at
least two subcontractors, if readily available;
21. Undertake early material procurement, site preparation, and advance construction work.
Construction Services:
1. Provision and purchasing of all materials, equipment, labor, and professional and non-
professional services.
2. Prepare necessary bidding information and pre-qualification criteria for bidders
3. Develop subcontractor interest in the Project
4. Receive and award subcontractor bids
5. Define any self-performed work
6. Create and manage the construction schedule, phasing, and site logistics.
7. Oversee quality control of work in progress.
8. Management of the construction budget and monthly reporting of budget and work in progress
status.
9. Overall project construction management.
10. Perform all other acts and supply all other things necessary to fully and properly perform and
complete the work as required by the contract documents.
IV. TIMELINES, DELIVERY DEADLINE, AND INSTRUCTIONS
As the initial submittal to the Owners, RFQs MUST BE DELIVERED NO LATER THAN 2:00 PM,
MOUNTAIN TIME, January 13, 2022, by email in PDF format addressed to:
Bozeman Swim Center General Contractor / Construction Manager
Bozeman City Clerk
The email address for submission is: agenda@bozeman.net
RESPONSES THAT ARE UNSIGNED OR SUBMITTED BEYOND THE DEADLINE SHALL NOT BE
CONSIDERED AND SHALL BE REJECTED.
A. Contact Information
ALL QUESTIONS AND CONTACTS REGARDING THIS RFQ MUST BE SUBMITTED IN WRITING TO:
Max Ziegler – Facilities Project Coordinator
(406) 582-2439
wziegler@bozeman.net
Amendments to Solicitation
Any interpretation or correction of this request will be published on the City’s webpage. The deadline for
questions related to this document is 12:00 PM MST on Tuesday, January 10, 2022.
B. Selection Timeline
Advertising dates: December 4, 18 and January 1, 2022
Receipt of RFQs: No later than 2:00 p.m. MST January 13, 2022
RFQ Review Complete by Committee: January 19, 2022
Interviews: January 25, 2022
Selection: January 27, 2022
With the exception of the advertising dates and advertised due date, the City reserves the right to
modify the above timeline.
V. SELECTION PROCEDURE
A. STATEMENT OF QUALIFICATIONS
Respondents must comply with the mandatory requirements provided in this solicitation.
The selection process shall be conducted pursuant to all applicable Montana law including
those criteria set forth in §18-8-204, MCA and applicable City policy.
1. Evaluation of RFQs. The selection committee shall consist of no less than
three persons representing the City. The selection committee will review
conforming RFQ responses using the criteria listed above. RFQ responses that do
not contain the required documentation will be deemed nonresponsive to this
solicitation and may be rejected.
2. Revisions. Responses will be accorded fair and equal treatment with
respect to opportunity for discussion and revision of responses, and such revisions
may be permitted, after submissions and prior to award for the purpose of
obtaining best and final responses.
3. Evaluation & Elimination. After evaluating all conforming responses based
on the criteria herein the selection committee may eliminate one or more or all
Respondents from further review if they do not meet the qualification criteria
specified herein. Any Respondents eliminated by the selection committee, at any
time, or for any reason, shall have no opportunity to make revisions or participate
further in the selection process.
4. Interviews. After reviewing conforming RFQ responses, the selection
committee may decide to schedule interviews with qualified respondents.
Interviews will be held on January 20, 2022 at the Professional Building, 20 East
Olive Street, Bozeman MT 59715. Each firm selected for interview will be notified
of the specific time for their interview. The format of the interview will be left up
to the proposing firm; however, interviews will be [45] minutes inclusive of
questions from the selection committee, with 15 minutes between interviews for
transitions and set up between Respondents.
5. Selection and Final Recommendation. The selection committee will tally
the scores for the RFQ. At that time contract negotiations will take place between
the City and successful Respondent. The City may negotiate a contract with the
next highest ranked Respondent if a contract cannot be made.
B. RFQ – FORM AND CONTENTS
Deliver one (1) original digital copy (PDF via email), prepared as follows:
i. General Instructions:
a. RFQ responses must be signed by an officer or principal of your firm.
b. RFQ responses must be contained in a single searchable PDF document not to
exceed 20 pages total including whatever pictures, charts, graphs, tables, and
text the firm deems appropriate to be part of the review of the firm's
qualifications. A separate transmittal letter, cover page, cover sheets, and
dividers are exempted from the page limit.
c. Schedules may be submitted in addition to the page limit.
ii. Firm Information:
a. Experience. Respondent must demonstrate successful experience and capacity
to act as a contractor on projects of similar size, type and complexity. Provide
the name and location of each project, the client, and the contact person and
phone number. Describe experience and qualifications of the professional
personnel to be assigned to this project. Describe your recent and current work
for the City of Bozeman, if any.
b. Firm Background. Provide information about the firm, including location.
Describe the firm’s history. Include information identifying the firm’s annual
volume of business, financial/bonding capacities, and speak to the firm’s
stability in the marketplace. Information identifying the firm’s strengths and
weaknesses along with special capabilities that may be appropriate to the
Project will assist in the evaluation.
c. Firm Workload. Provide the status of current and anticipated work within the
firm in terms of time and magnitude for the anticipated Project schedule as it
relates to availability of key personnel and your firm. Describe the firm’s
capability to meet time and project budget requirements.
d. Claims. At any time in the last ten (10) years has your firm been assessed and
paid liquidated damages after completion of a project under a contract with a
public owner?
e. References. Provide detailed contact information for the Owner for at least five
(5) project undertaken by your firm within the past five years.
C. Bonding:
The GC/CM must be able to provide a Performace and Payment bond(s) in the amount
of the total construction budget (to be determined), including GC/CM fees.
VI.
A. EVALUATION CRITERIA – Statement of Qualifications
Qualifications will be evaluated by the Selection Committee who will individually score
them out of a total of 100 possible points based on the criteria below.The scoring criteria
and possible point values are:
1. Respondent’s experience with projects of similar size and design:
Possible Points: 50
2. Firm’s Qualifications:
Possible Points: 20
3. Capabilities to meet time schedule and project budget requirements.
Possible Points: 15
4. Present and projected workloads:
Possible Points: 5
5. Past projects/experience working with the City of Bozeman:
Possible Points: 5
6. Office(s) location:
Possible Points: 5
VII. FORM OF AGREEMENT
The Contractor will be required to enter into a contract with the City in substantially the same form as
the Professional Services Agreement attached as Appendix B for Preconstruction Services. The
Contractor will be required to enter into a contract with the City in substantially the same form as the
Construction Agreement attached as Appendix C for Preconstruction Services.
VIII. CITY RESERVATION OF RIGHTS
All proposals submitted in response to this RFQ become the property of the City and public records
and, as such, may be subject to public review.
A SUBMISSION IN RESPONSE TO THIS REQUEST FOR QUALIFICATIONS CONFERS NO RIGHTS UPON ANY
RESPONDENTS AND SHALL NOT OBLIGATE THE CITY IN ANY MANNER WHATSOEVER. THE CITY
RESERVES THE RIGHT TO MAKE NO AWARD AND TO SOLICIT ADDITIONAL REQUEST FOR
QUALIFICATIONS AT A LATER DATE.
A. This RFQ may be canceled or any or all responses may be rejected in whole or in part, as
specified herein, when it is in the best interests of the City. If the City cancels or revises
this RFQ, all Respondents who submitted will be notified using email.
B. The City reserves the right to accept or reject any and all submissions; to add or delete
items and/or quantities; to amend the RFQ; to waive any minor irregularities,
informalities, or failure to conform to the RFQ; to extend the deadline for submitting
proposals; to postpone award for up to 60 days; to award one or more contracts, by item
or task, or groups of items or tasks, if so provided in the RFQ and if multiple awards are
determined by the City to be in the public interest.
C. The City reserves the right to reject the submission of any person/firm who previously
failed to perform properly to the satisfaction of the City, or complete on time agreements
of similar nature, or to reject the submission of any person/firm who is not in a position
to perform such an agreement satisfactorily as determined by the City.
D. The City reserves the right to determine the best qualified Respondents and negotiate
a final scope of service and cost, negotiate a contract with another Respondents if an
agreement cannot be reached with the first selected Respondents, or reject all
proposals.
E. The successful Respondents will be required to enter into a contract with the City,
which will incorporate the Respondents' scope of service and work schedule as part of
the agreement.
F. This RFQ does not commit the City to award a contract. The City assumes no liability or
responsibility for costs incurred by Respondents in responding to this request for
qualifications or request for interviews, additional data, or other information with
respect to the selection process, prior to the issuance of an agreement, contract or
purchase order. The Respondents, by submitting a response to this RFQ, waives all
right to protest or seek any legal remedies whatsoever regarding any aspect of this
RFQ.
G. This project is subject to the availability of funds.
IX. NONDISCRIMINATION AND EQUAL PAY POLICY
The City of Bozeman requires each entity submitting under this notice shall affirm, on a separate form
provided, that it will not discriminate on the basis of race, color, religion, creed, sex, age, marital status,
national origin, or because of actual or perceived sexual orientation, sexual preference, gender
identity, or disability in fulfillment of a contract entered into for the services identified herein and that
this prohibition on discrimination shall apply to the hiring and treatment of the submitting entity’s
employees and to all subcontracts it enters into in the fulfillment of the services identified herein.
Failure to comply with this requirement shall be cause for the submittal to be deemed nonresponsive.
The City also requires each entity submitting under this notice shall affirm it will abide by the Equal Pay
Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act), and has visited the State of
Montana Equal Pay for Equal Work “best practices” website,
https://equalpay.mt.gov/BestPractices/Employers, or equivalent “best practices publication and has
read the material.
X. MISCELLANEOUS
A. No Oral Agreements. No conversations or oral agreements with any officer, employee, or agent of
the City shall affect or modify any term of this solicitation. Oral communications or any
written/email communication between any person and City officer, employee or agent shall not be
considered binding.
B. No Partnership/Business Organization. Nothing in this solicitation or in any subsequent
agreement, or any other contract entered into as a result of this solicitation, shall constitute, create,
give rise to or otherwise be recognized as a partnership or formal business organization of any kind
between or among the respondent and the City.
C. Employment Restriction and Indemnity. No person who is an owner, officer, employee,
contractor, or consultant of a respondent shall be an officer or employee of the City. No rights
of the City’s retirement or personnel rules accrue to a respondent, its officers, employees,
contractors, or consultants. Respondents shall have the responsibility of all salaries, wages,
bonuses, retirement, withholdings, worker’s compensation and occupational disease
compensation, insurance, unemployment compensation other benefits and taxes and
premiums appurtenant thereto concerning its officers, employees, contractors, and consultants.
Each Respondent shall save and hold the City harmless with respect to any and all claims for
payment, compensation, salary, wages, bonuses, retirement, withholdings, worker’s
compensation and occupational disease compensation, insurance, unemployment
compensation other benefits and taxes and premiums in any way related to each respondent’s
officers, employees, contractors and consultants.
D. Accessibility. Upon reasonable notice, the City will provide assistance for those persons with
sensory impairments. For further information please contact the ADA Coordinator Mike Gray at
406-582-3232 or the City’s TTY line at 406-582-2301.
E. Procurement. When discrepancies occur between words and figures in this solicitation, the
words shall govern. No responsibility shall attach to a City employee for the premature opening
of an SOQ not properly addressed and identified in accordance with these documents.
F. Governing Law. This solicitation and any disputes arising hereunder or under any future
agreement shall be governed and construed and enforced in accordance with the laws of the
State of Montana, without reference to principles of choice or conflicts of laws.
XI. ATTACHMENTS
The following exhibits are incorporated in this RFQ:
Appendix A: Non-Discrimination Affirmation
Appendix B: Sample form of Public Services Agreement
Appendix C: Sample form of Construction Agreement
END OF RFQ
Attachment A
NONDISCRIMINATION AND EQUAL PAY AFFIRMATION
____________________________________(name of entity submitting) hereby affirms it will not
discriminate on the basis of race, color, religion, creed, sex, age, marital status, national origin, or
because of actual or perceived sexual orientation, gender identity or disability and acknowledges and
understands the eventual contract will contain a provision prohibiting discrimination as described above
and this prohibition on discrimination shall apply to the hiring and treatments or proposer’s employees
and to all subcontracts.
In addition, ____________________________________(name of entity submitting) hereby affirms it will
abide by the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act), and has
visited the State of Montana Equal Pay for Equal Work “best practices” website,
https://equalpay.mt.gov/BestPractices/Employers, or equivalent “best practices publication and has
read the material.
______________________________________
Name and title of person authorized to sign on behalf of submitter
Attachment B
PROFESSIONAL SERVICES 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, ____________, _______________, hereinafter referred to as “Contractor.” The City and
Contractor may be referred to individually as “Party” and collectively 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 Contractor to perform for City services
described in the Scope of Services attached hereto as Exhibit A and by this reference made a part hereof.
2. Term/Effective Date: This Agreement is effective upon the Effective Date and will expire
on the _____ day of ______________, 2022, unless earlier terminated in accordance with this Agreement.
3. Scope of Services: Contractor will perform the work and provide the services in accordance
with the requirements of the Scope of Services. For conflicts between this Agreement and the Scope of
Services, unless specifically provided otherwise, the Agreement governs. Contractor agrees to be bound
by its responses to the City’s Cloud Questions, attached to this Agreement as Exhibit B and made part of
this Agreement. Such responses constitute material consideration for the City to enter into this Agreement
and the responses are material representations regarding the Contractor’s performance.
4. Payment: City agrees to pay Contractor the amount specified in the Scope of Services. Any
alteration or deviation from the described services that involves additional costs above the Agreement
amount will be performed by Contractor 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. Contractor’s Representations: To induce City to enter into this Agreement, Contractor
makes the following representations:
a. Contractor 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. Contractor represents and warrants to City that it has the experience and ability to perform
the services required by this Agreement; that it will perform the 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.
6. Independent Contractor Status/Labor Relations: The parties agree that Contractor is an
independent contractor for purposes of this Agreement and is not to be considered an employee of the City
for any purpose. Contractor 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.
Contractor is not authorized to represent the City or otherwise bind the City in any dealings between
Contractor and any third parties.
Contractor shall comply with the applicable requirements of the Workers’ Compensation Act, Title
39, Chapter 71, Montana Code Annotated (MCA), and the Occupational Disease Act of Montana, Title 39,
Chapter 71, MCA. Contractor shall maintain workers’ compensation coverage for all members and
employees of Contractor’s business, except for those members who are exempted by law.
Contractor 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 contractors.
Contractor shall post a legible statement of all wages and fringe benefits to be paid to the
Contractor’s employees and the frequency of such payments (i.e., hourly wage employees shall be paid
weekly). Such posting shall be made in a prominent and accessible location at the Contractor’s normal
place of business and shall be made no later than the first day of services provided under this Agreement.
Such posting shall be removed only upon expiration or termination of this Agreement.
In performing the services under this Agreement, Contractor shall give preference to the
employment of bona fide residents of Montana, as required by §18-2-403, MCA, as such term is defined
by §18-2-401(1), MCA. When making assignments of work, Contractor shall use workers both skilled in
their trade and specialized in their field of work for all work to which they are assigned.
Pursuant to §§18-2-403 and 18-2-422, MCA, Contractor shall pay wages, fringe benefits, and
expenses, including travel allowances as set forth in the current Montana Prevailing Wage Rate for Non
Construction Services in effect and applicable to Gallatin County, Montana, which schedule is incorporated
herein. Contractor shall pay all hourly wage employees on a weekly basis. Violation of the requirements
set forth in the above State of Montana schedule of prevailing wage rates may subject the Contractor to the
penalties set forth in §18-2-407, MCA. Contractor shall maintain payroll records during the term of this
Agreement and for a period of three (3) years following termination of this Agreement.
The Contractor shall ensure that any person, firm or entity performing any portion of the services
under this Agreement for which the contractor, subcontractor or employer is responsible, is paid the
applicable standard prevailing rate of wages.
In the event that, during the term of this Agreement, any labor problems or disputes of any type arise
or materialize which in turn cause any services 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 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 services to continue
at no additional cost to City.
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
and for any claims regarding underpaid prevailing wages.
7. Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to
the fullest extent permitted by law, 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 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.
For the professional services rendered, to the fullest extent permitted by law, Contractor 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 intentional misconduct
of the Contractor or Contractor’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 City as indemnitee(s) which would
otherwise exist as to such indemnitee(s).
Contractor’s indemnity under this Section shall be without regard to and without any right to
contribution from any insurance maintained by City.
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 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.
In the event of an action filed against the 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.
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.
These obligations shall survive termination of this Agreement and the services performed hereunder.
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. Contractor shall furnish to the City an
accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows:
• Workers’ Compensation – statutory;
• Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate;
• Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate;
• 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 shall be endorsed as an additional
or named insured on a primary non-contributory basis on the Commercial General, Employer’s Liability,
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.
8. 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.
b. In the event of a termination pursuant to this Section 8, Contractor shall be entitled
to payment only for those services Contractor 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, 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.
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 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 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. Contractor 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, Contractor is entitled to
payment only for those services Contractor 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
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.
10. 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 thirty (30) 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.
11. Representatives and Notices:
a. City’s Representative: The City’s Representative for the purpose of this Agreement
shall be _________________ or such other individual as City shall designate in writing. Whenever
approval or authorization from or communication or submission to City is required by this
Agreement, such communication or submission shall be directed to the City’s Representative and
approvals or authorizations shall be issued only by such Representative; provided, however, that in
exigent circumstances when City’s Representative is not available, Contractor may direct its
communication or submission to other designated City personnel or agents as designated by the City
in writing and may receive approvals or authorization from such persons.
b. Contractor’s Representative: The Contractor’s Representative for the purpose of
this Agreement shall be _____________________ 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.
12. 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, and pay all fees and charges in connection
therewith.
13 Laws and Regulations: Contractor 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 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.
15. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor 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. 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 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.
16. Modification and Assignability: This Agreement may not be enlarged, modified or altered
except by written agreement signed by both parties hereto. The Contractor may not subcontract or assign
Contractor’s rights, including the right to compensation or duties arising hereunder, without the prior
written consent of the City. Any subcontractor or assignee will be bound by all of the terms and conditions
of this Agreement.
17. Reports/Accountability/Public Information: Contractor agrees to develop and/or provide
documentation as requested by the City demonstrating Contractor’s compliance with the requirements of
this Agreement. Contractor 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 Contractor pursuant to this Agreement was used in compliance with this Agreement and all
applicable provisions of federal, state, and local law. The Contractor 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 of any default or breach by the other party of any
terms or conditions of this Agreement does not limit the other party’s right to enforce such term or
conditions or to pursue any available legal or equitable rights in the event of any subsequent default or
breach.
19. Attorney’s Fees and Costs: In the event it becomes necessary for either Party to retain an
attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein,
then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs,
including fees, salary, and costs of in-house counsel including the City Attorney’s Office staff.
20. Taxes: Contractor 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: Contractor’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 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 constitute
one instrument.
29. Integration: This Agreement and all Exhibits attached hereto constitute the entire
agreement of the parties. Covenants or representations not contained herein or made a part thereof by
reference, are not binding upon the parties. There are no understandings between the parties other than as
set forth in this Agreement. All communications, either verbal or written, made prior to the date of this
Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by
reference.
30. 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.
31. Extensions: this Agreement may, upon mutual agreement, be extended for a period of one
year by written agreement of the Parties. In no case, however, may this Agreement run longer than -
__________________________.
**** END OF AGREEMENT EXCEPT FOR SIGNATURES ****
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first
above written or as recorded in an electronic signature.
CITY OF BOZEMAN, MONTANA ____________________________________
CONTRACTOR (Type Name Above)
By________________________________ By__________________________________
Jeff Mihelich, City Manager
Print Name: ___________________________
Print Title: ____________________________
APPROVED AS TO FORM:
By_______________________________
Greg Sullivan, Bozeman City Attorney
Attachment C
CONSTRUCTION AGREEMENT
This Construction 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, ____________, _______________, 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:
a. A description of the work to be performed to _____________________ (the
“Construction Project”) and Contractor’s duties is set forth in the Scope of Services attached hereto
as Exhibit A and by this reference made a part hereof, and in the drawings, plans, and specifications
provided by the City, which are included in the Scope of Services attached hereto as Exhibit A.
b. Prior to the commencement of any work on the Construction Project, Contractor’s
representatives and City’s representatives shall hold a meeting to establish a working understanding
among the parties as to the scope of the Construction Project and duties of the Contractor. At this
meeting, Contractor and City shall resolve any outstanding issues related to the plans, designs,
drawings, and specifications. If the parties are unable to resolve these issues and the City fails,
refuses, or is unable to approve the same, no work shall commence on the Construction Project until
such issues are resolved and the City approves the related plans, designs, drawings, and
specifications.
c. Except as provided elsewhere in this Agreement, Contractor shall furnish all the
labor, materials, equipment, tools, and services necessary to perform and complete the Construction
Project.
d. During work on the Construction Project, and as part of the final completion of the
Construction Project, Contractor shall clean up the Project 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 Construction Project.
2. City-Supplied Materials: The City may supply materials from time to time in furtherance
of the Construction Project. Such materials will be noted as an addendum to this Agreement.
3. Time of Performance: Contractor shall begin the Construction Project after receiving a
Notice to Proceed from City and shall complete the Construction Project no later than
______________________. Time is of the essence of completion of all work and each phase of the
Construction Project.
4. Liquidated Damages: If the Construction Project is not completed within the time provided
by this Agreement, the City may deduct for each day the Construction Project remains uncompleted the
sum of Five Hundred Dollars ($500.00) from the compensation hereinafter specified and retain that sum as
payment for liquidated damages sustained by reason of the Contractor’s failure to complete the Construction
Project on time.
5. Compensation:
a. City shall pay to Contractor, and Contractor shall accept as full payment for the
performance of this Agreement and the Construction Project, the amount of
_____________________________ Dollars ($_____________).
b. If work not included within the original Construction Documents 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. City shall retain five percent (5%) of the total amount of compensation to be paid to
the Contractor to ensure compliance with the terms and conditions of this Agreement and the timely
completion of the Construction Project and any and all “punch list” items (“Retainage Amount”).
The Retainage Amount shall be paid to Contractor thirty (30) days after the City’s final acceptance
of the portion of work for which a separate price is stated in the specifications for the Construction
Project.
e. 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 Construction Project that
Contractor may have or assert against City, its officers, agents, and employees.
6. Inspection and Testing:
a. City has the right to inspect and test any and all work performed by Contractor on
the Construction Project. Contractor shall allow City and its agents access to the Construction
Project 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 Construction Project. 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 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.
7. Partial Utilization of Construction Project: City shall have the right to use or occupy any
portion of the Construction Project that City and Contractor mutually agree is substantially completed and
constitutes a separately functioning and usable part of the Construction Project for its intended purpose
without significant interference with Contractor’s performance of the remaining portions of the
Construction Project. In the event City takes possession of any portion of the Construction Project, such
possession shall not be deemed an acceptance of the Construction Project, in whole or in part. City’s use
of any portion of the Construction Project shall not be grounds for extensions of any construction deadlines
or a change in the Contractor’s compensation. Contractor’s warranties shall run from the completion of the
total Construction Project and not from the date the City may take possession of selected portions of the
Construction Project.
8. Related Work at the Site: Nothing in this Agreement shall prevent or preclude City,
through its own employees or by contract with any third party, from performing other work related to the
Construction Project at the construction site; provided such related work is not otherwise addressed in this
Agreement and provided such related work does not otherwise interfere with Contractor’s performance of
this Agreement or the completion of the Construction Project. Contractor shall afford any City employee,
agent or representative, or any third party under contract with the City to perform the related work, proper
and safe access to the construction site, a reasonable opportunity for the introduction and storage of
materials and equipment, the opportunity to perform the related work, and shall properly coordinate the
Contractor’s work on the Construction Project with the related work.
9. Contractor’s Warranties: Contractor represents and warrants as follows:
a. Unless otherwise specified by the terms of this Agreement, all materials and
equipment used by Contractor on the Construction Project shall be new and where not otherwise
specified, of the most suitable grade for their intended uses.
b. All workmanship and materials shall be of a kind and nature acceptable to the City.
c. All equipment, materials, and labor provided to, on, or for the Construction Project
must be free of defects and nonconformities in design, materials, and workmanship for a minimum
period beginning with the commencement of the work on the Construction Project and ending one
(1) year from the final completion and acceptance by the City of the Construction Project, regardless
of whether such equipment, materials, or labor were supplied directly by Contractor or indirectly by
Contractor’s subcontractors or suppliers. Other express warranties on materials that provide for a
warranty period longer than one year apply for the period of that express warranty and are not
reduced by this provision. Upon receipt of City’s written notice of a defective or nonconforming
condition during the warranty period, Contractor shall take all actions, including redesign and
replacement, to correct the defective or nonconforming condition within a time frame acceptable to
the City and at no additional cost to the City. Contractor shall also, at its sole cost, perform any tests
required by City to verify that such defective or nonconforming condition has been corrected.
Contractor warrants the corrective action taken against defective and nonconforming conditions for
a period of an additional one (1) year from the date of City’s acceptance of the corrective action.
d. Contractor and its sureties are liable for the satisfaction and full performance of all
warranties.
e. Contractor shall give its personal attention to the faithful prosecution of the
completion of the Construction Project and Contractor, or its duly authorized representative
assigned to serve as the Construction Project Manager, shall be personally present at the site of the
Construction Project during working hours for the term of this Agreement until the completion of
the Construction Project.
f. Contractor shall have a complete, accurate, and up-to-date set of construction plans,
drawings, and specifications on site at all times.
g. Contractor has examined all available records and made field examinations of the
site of the Construction Project. Contractor has knowledge of the field conditions to be encountered
during the Construction Project. Contractor has knowledge of the types and character of equipment
necessary for the work, the types of materials needed and the sources of such materials, and the
condition of the local labor market.
h. Contractor is responsible for the safety of the work and shall maintain all lights,
guards, signs, temporary passages, or other protections necessary for that purpose at all times.
i. All work must be performed at Contractor’s risk, and Contractor shall promptly
repair or replace all damage and loss at its sole cost and expense regardless of the reason or cause
of the damage or loss; provided, however, should the damage or loss be caused by an intentional or
negligent act of the City, the risk of such loss shall be placed on the City.
j. Contractor is responsible for any loss or damage to materials, tools, or other articles
used or held for use in the completion of performance of the Construction Project.
k. Contractor’s performance must be without damage or disruption to any other work
or property of the City or of others and without interference with the operation of existing machinery
or equipment.
l. Title to all work, materials, and equipment covered by any payment of Contractor’s
compensation by City, whether directly incorporated into the Construction Project or not, passes to
City at the time of payment, free and clear of all liens and encumbrances.
10. 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 no claim for damages or any other claim other than for an extension of time as herein
provided by reason of any delays.
11. 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
Construction Project (“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 Project, 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) a standby charge paid during the period of suspension
which will be sufficient to compensate Contractor for keeping, to the extent required in the Notice
of Suspension, Contractor’s organization and equipment committed to the Project in standby status;
(2) all reasonably incurred costs for the demobilization of Contractor’s and subcontractor’s crews
and equipment; (3) an equitable amount to reimburse Contractor for the cost to protect and maintain
the Project during the period of suspension; and (4) 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 Construction Project 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 11(c) shall be made within fifteen (15) days after receipt of the Notice to
Resume Work and Contractor shall submit a revised Construction 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 11(c) shall be paid and no extension of time
to complete the Construction Project shall be granted if the suspension results from Contractor’s
non-compliance with or breach of the terms or requirements of this Agreement.
12. 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 Construction Project (“Termination Notice Due to
Contractor’s Fault”). The City may then take over the Construction Project 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 Construction Project.
b. In the event of a termination pursuant to this Section 12, 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 Construction Project
has been completed. Upon completion of the Construction Project, 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 Construction Project
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 12 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 12, 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.
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 work on the Construction Project, 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 Construction Project,
discontinue placing orders for materials, supplies, and equipment for the Construction Project, 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 13, 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 13(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.
14. 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.
15. Representatives and Notices:
a. City’s Representative: The City’s Representative for the purpose of this Agreement
shall be _____________________or such other individual as City shall designate in writing.
Whenever approval or authorization from or communication or submission to City is required by
this Agreement, such communication or submission shall be directed to the City’s Representative
and approvals or authorizations shall be issued only by such Representative; provided, however,
that in exigent circumstances when City’s Representative is not available, Contractor may direct its
communication or submission to other designated City personnel or agents 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 ________________ 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.
16. 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.
17. 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 Construction Project.
18. 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
Construction Project, 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 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.
19. Laws and Regulations: Contractor 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.
20. 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.
21. 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
Construction Project. 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 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.
22. Labor Relations:
a. In the event that, during the term of this Agreement and throughout the course of
Contractor’s performance of the Construction Project, any labor problems or disputes of any type
arise or materialize which in turn cause any work on the Construction Project 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 Construction Project 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
Construction Project 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.
23. Subcontractors:
a. Contractor may employ subcontractors for any work on the Construction Project.
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 Construction Project.
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 Construction Project 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 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 Construction Project. 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. Hazard Communication: Contractor shall comply with all hazard communication
requirements dictated by the Environmental Protection Agency, the Montana Department of Agriculture,
OSHA, Hazard Communications Standard, 29 CFR 1910.1200, and applicable City ordinances. Contractor
shall supply a chemical list, the associated material safety data sheets (MSDS), and other pertinent health
exposure data for chemicals that the Contractor’s, subcontractor’s or the City’s employees may be exposed
to while working on City property during the course of the Construction Project. One copy of this
documentation must be delivered to City to the attention of the City’s Representative. This documentation
must be delivered before work involving these chemicals may commence.
26. Accounts and Records: During the term of this Agreement and for two (2) years following
the City’s final acceptance of the Construction Project, Contractor shall maintain accounts and records
related to the Construction Project. Upon reasonable notice, City shall have the right to inspect all such
accounts and records, including but not limited to, Contractor’s records, books, correspondence,
instructions, drawings, specifications, field and site notes, receipts, invoices, bills, contracts, or other
documents relating to the Construction Project.
27. 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
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 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 the 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 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. 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 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 Construction Project 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.
i. Pursuant to the City’s authority provided for in 18-2-201(4), the Contractor shall not
be required to provide bonds as required by 18-2-201(1) under this Agreement.
28. 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.
29. 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 shall be resolved in a court of competent jurisdiction
in compliance with the Applicable Law provisions of this Agreement.
30. Survival: Contractor’s indemnification and warranty obligations shall survive the
termination or expiration of this Agreement for the maximum period allowed under applicable law.
31. 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.
32. 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.
33. Attorney’s Fees and Costs: In the event it becomes necessary for either Party to retain an
attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein,
then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs,
including fees, salary, and costs of in-house counsel including the City Attorney’s Office staff.
34. Severability: If any portion of this Agreement is held to be void or unenforceable, the
balance thereof shall continue in effect.
35. Applicable Law : The parties agree that this Agreement is governed in all respects by the
laws of the State of Montana.
36. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal
representatives, successors, and assigns of the parties.
37. Amendments: This Agreement may not be modified, amended, or changed in any respect
except by a written document signed by all parties.
38. 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.
38. Counterparts: This Agreement may be executed in counterparts, which together constitute
one instrument.
39. 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 Construction Project. Contractor may not assign to any third
party other than Contractor’s subcontractors on the Construction Project, the right to receive monies due
from City without the prior written consent of City.
40. 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.
41. Independent Contractor: The parties agree and acknowledge that in the performance of
this Agreement and the completion of the Construction Project, 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.
42. 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.
43. 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 ****
IN WITNESS WHEREOF, Contractor and City have caused this Agreement to be executed,
effective on the date written above, and intend to be legally bound thereby.
CITY OF BOZEMAN, MONTANA CONTRACTOR
By: _______________________________ By:
Jeff Mihelich, City Manager
Print Name:
Title:
APPROVED AS TO FORM:
By: _______________________________
Greg Sullivan, City Attorney