HomeMy WebLinkAbout22- Professional Services Agreement - WSB & Associates, Inc - Design of the Southwest Montana Veteran's Cemetary at Sunset HillsProfessional Services Agreement for WSB & Associates Inc. Architectural Services
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PROFESSIONAL ARCHITECTURAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this _____ day of ____________, 2022
(“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, WSB & Associates, Inc. dba WSB, 701 Xenia Avenue S., Ste. 300, Minneapolis, MN 55416, hereinafter referred to as “Consultant” or “Architect.” The City
and Architect 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 hire Consultant as an independent contractor to perform for
City services described in the Scope of Services attached hereto as Exhibit B and by this reference made a part hereof.
2.Effective Date: This Agreement is effective upon the Effective Date unless earlier
terminated in accordance with this Agreement.
3.Scope of Work: Consultant will perform the work and provide the services inaccordance with the requirements of the Scope of Services attached hereto as Exhibit B. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the
Agreement governs.
4.Payment: City agrees to pay Architect $45,184 for services performed pursuant tothe Scope of Services attached hereto as Exhibit B. Any alteration or deviation from the described work that involves additional costs above the Agreement amount will be performed by Architect after
written request by the City, and will become an additional charge over and above the contract amount.
The parties must agree in writing upon any additional charges.
5.Consultant’s Representations:
To induce City to enter into this Agreement, Architect makes the following representations:
a. Architect 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, growth policies, adopted plans of the City, ordinances, rules, and regulations that in any manner may affect cost, progress or performance of the Scope of Services.
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b.Architect represents and warrants to City that it has the experience and ability toperform the services required by this Agreement; that it will perform the services in a professional, competent and timely manner and with the diligence and skill; exercised by members of the same profession practicing at the same time in the same location 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: The parties agree that Architect is an independentcontractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Architect 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.
Architect is not authorized to represent the City or otherwise bind the City in any dealings between
Architect and any third parties.
Architect 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. Architect shall maintain workers’ compensation coverage for
all members and employees of Architect’s business, except for those members who are exempted by law.
Architect 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.
7.Indemnity/Waiver of Claims/Insurance: For other than professional services
rendered, to the fullest extent permitted by law, Architect agrees to defend, indemnify, and hold the
City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) harmless against claims, demands, suits, damages, losses, and expenses connected therewith that may be asserted or claimed against, recovered from or suffered by the City by reason of any injury or loss, including but not limited to, personal injury, including bodily injury or death,
property damage, occasioned by, growing out of, or in any way arising or resulting from any
intentional or negligent act on the part of Architect or Architect’s agents or employees.
For the professional services rendered, to the fullest extent permitted by law, Architect 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 Architect or Architect’s agents or employees.
Architect 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]
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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.
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 City be required to bring an action against the Architect to assert its right to defense or indemnification under this Agreement or under
the Architect’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 Architect was obligated to defend the claim(s) or was obligated to indemnify the City for a claim(s) or any portion(s) thereof.
The obligations of this Section shall survive termination of this Agreement and the services performed hereunder.
In addition to and independent from the above, Architect shall secure insurance coverage acceptable to the City and furnish to the City an accompanying certificate of insurance issued by a
company authorized to do business in the State of Montana 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 annualaggregate
•Automobile Liability - $1,000,000 property damage/bodily injury; $2,000,000 annual
aggregate
•Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate
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. The City must approve all insurance coverage andendorsements prior to the Architect commencing work.
8.Professional Service: Architect agrees that all services and work performed
hereunder will be accomplished in a professional manner.
9.Compliance with Laws: Architect agrees to comply with all federal, state and locallaws, ordinances, rules and regulations, including the safety rules, codes, and provisions of the
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Montana Safety Act in Title 50, Chapter 71, MCA. Architect agrees to purchase a City business license.
10.Nondiscrimination and Equal Pay: The Architect agrees that all hiring by Architect
of persons performing this Agreement shall be on the basis of merit and qualifications. The Architect
will have a policy to provide equal employment opportunity in accordance with all applicable state
and federal anti-discrimination laws, regulations, and contracts. The Architect 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 Architect 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.
Architect 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).
Architect must report to the City any violations of the Montana Equal Pay Act that Architect has been
found guilty of within 60 days of such finding for violations occurring during the term of this
Agreement.
Architect shall require these nondiscrimination terms of its subcontractors providing services under this Agreement.
11.Default and Termination: If either Party fails to comply with any condition of this
Agreement at the time or in the manner provided for, the other Party, at its option, may terminate this
Agreement and be released from all obligations if the default is not cured within ten (10) days after written notice is provided to the defaulting Party. Said notice shall set forth the items to be cured. Additionally, the non-defaulting Party may bring suit for damages, specific performance, and any other remedy provided by law. These remedies are cumulative and not exclusive. Use of one remedy
does not preclude use of the others. Notices shall be provided in writing and hand-delivered or mailed
to the Parties at the addresses set forth in the first paragraph of this Agreement.
12.Modification and Assignability: This document contains the entire agreementbetween the parties and no statements, promises or inducements made by either party or agents of
either party, which are not contained in this written Agreement, may be considered valid or binding.
This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Architect may not subcontract or assign Architect’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.
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13.Ownership and Publication of Materials: All reports, information, data, and othermaterials prepared by the Architect pursuant to this Agreement, except those separately identified in the Scope of Services or in other written agreements between the parties, are jointly owned by the Architect and the City. The City has authority to release, publish or otherwise use, in whole or part,
reports, information, data and other materials prepared by Architect pursuant to this Agreement,
except those separately identified in the Scope of Services or in other written agreements between the parties. Any re-use without written verification or adaptation by the Architect for the specific purpose intended will be at the City’s sole risk and without liability or legal exposure to the Architect. No material produced in whole or in part under this Agreement may be copyrighted or patented in the
United States or in any other country without the prior written approval of the City.
14.Representatives and Notices:
a.City’s Representative: The City’s Representative for the purpose of this
Agreement shall be Thom White, Parks Superintendent 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, Architect 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.Architect’s Representative: The Architect’s Representative for the purpose
of this Agreement shall be Jolene Rieck, WSB & Associates Inc. Director of Landscape
Architecture or such other individual as Architect shall designate in writing. Whenever
direction to or communication with Architect is required by this Agreement, such direction or
communication shall be directed to Architect’s Representative; provided, however, that in
exigent circumstances when Architect’s Representative is not available, City may direct its
direction or communication to other designated Architect 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.
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15.Applicability: This Agreement and any extensions hereof shall be governed andconstrued in accordance with the laws of the State of Montana.
16.Reports/Accountability/Public Information: Architect agrees to develop and/or
provide documentation as requested by the City demonstrating Architect’s compliance with the
requirements of this Agreement. Architect 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 Architect pursuant to this Agreement was used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The Architect shall
not issue any statements, releases or information for public dissemination without prior approval of
the City.
17.Non-Waiver: A waiver by either Party of any default or breach by the other party ofany 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.
18.Counterparts: This Agreement may be executed in counterparts, which togetherconstitute one instrument.
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.
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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.Attorney’s Fees and Costs: In the event it becomes necessary for either Party toretain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel including the City
Attorney’s Office staff.
29.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.
30.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 three years.
**** END OF AGREEMENT EXCEPT FOR SIGNATURES ****
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IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first above written or as recorded in an electronic signature.
CITY OF BOZEMAN, MONTANA
By________________________________ Jeff Mihelich, City Manager
____________________________________
WSB & Associates, Inc. dba WSB
By__________________________________
Print Name:
Print Title: ____________________________
APPROVED AS TO FORM:
By_______________________________ Greg Sullivan, Bozeman City Attorney
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WSB & Associates, Inc.
Jolene Rieck
Director of Landscape Arch. West Region
EXHIBIT B
WSB & ASSOCIATES, INC.
EXHIBIT B SCOPE OF WORK SOUTHWEST MONTANA (“SWMT”) VETERANS CEMETERY – BOZEMAN, MONTANA
The Client intends to retain Consultant to provide professional services for the design of the columbaria
plaza and columbarium walls for the Southwest Montana (“SWMT”) Veterans Cemetery project, located in
Sunset Hills Cemetery, Bozeman, Montana. The Scope of Services is outlined below.
ARTICLE B.1 – SCOPE OF SERVICES
B.1.1 SURVEY & GEOTECHNICAL SERVICES.
(1)Engineering Survey. An engineering survey of the upper plaza area, encompassing the
gravel roads and the upper retaining wall, will be conducted to provide accurate existing
conditions information of the project site.
(2)Geotechnical Investigation. A subsurface of investigation and soils testing will be
conducted to provide information on base materials, slab foundations, wall footings, and
pavements.
(3) Deliverables:
A.One (1) engineering survey and one (1) geotechnical investigation report.
B.1.2 CONSTRUCTION DOCUMENTS. Consultant will develop the construction documents
necessary to bid and construct the project.
(1) Deliverables:
A.100% stamped construction documents provided to Client, electronically, in a PDF
format.
(1)Construction Documents will provide a phased implementation approach and
include all the necessary layout, grading, drainage, site furnishings, and
associated construction details. Locations of sleeves / conduit for future utility
development will be included.
B.100% Budgetary Opinion of Probable Cost for project budgeting purposes.
ARTICLE B.2 – ASSUMPTIONS
Consultant has based the scope of work and fee upon the following assumptions.
B.2.1 Specifications will utilize the Montana Public Works Standard Specifications, Bozeman
Modifications (current edition).
B.2.2 Documents will be prepared to provide a “phase” implementation approach.
B.2.3 Electrical services will be designed and installed as a future phase. WSB will indicate
sleeves/conduits to accommodate this future work.
B.2.4 Committal shelter will be designed and installed as a future phase. WSB will provide
placement information on drawings.
ARTICLE B.3 – EXCLUSIONS
B.3.1 The following items are excluded from this Agreement; however, Consultant can provide
these professional services for additional compensation by amendment to this Agreement. (1)Planting Design/Plan
(2)Irrigation Design/Plan
(3)Electrical Utility Design/Plan
(4)Committal Shelter Design
(5)Pre-construction Activities & Bidding Services
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EXHIBIT B
(6)Construction Contract Administration
ARTICLE B.4 – ADDITIONAL SERVICES
Additional services may be added upon approval by both Client and Consultant via amendment to this
Agreement.
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