HomeMy WebLinkAbout23 - Professional Services Agreements - Think 2 Perform - Services Agreement Professional Services Agreement for Think 2 Perform Page 1 of 11
PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this 19th day of May, 2023 (“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, Dave Meldhal, Think 2 Perform, 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.
3. Scope of Services: Contractor will perform employee coaching and provide the
services in accordance with the requirements of the Scope of Services. The final scope of services is
located with the Human Resources Department. For conflicts between this Agreement and the Scope
of Services, unless specifically provided otherwise, the Agreement governs.
4. Payment: City agrees to pay Contractor the amount specified in the Scope of Services
(Option1: $7,500). 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.
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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.
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.
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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]
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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.
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:
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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.
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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 Cassandra Tozer, Human Resources Director, 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 Dave Meldhal, Senior Vice President, 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
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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.
If Contractor’s Scope of Services includes the production of digital content or documents for
the City, Contractor must use both the City style guide when creating a design, and as per
recommendations found in Section 508 of the Rehabilitation Act, the content must also adhere to level A and AA Success Criteria and Conformance Requirements as defined by the current Web Content Accessibility Guidelines (WCAG).
The City will not accept digital content that does not comply with WCAG A and AA
guidelines. If the City refuses digital content because it is non-compliant with the City style guide,
Section 508 of the Rehabilitation Act, and/or WCAG, Contractor will be required to make the digital content compliant and redelivered at no additional cost to the City.
15. 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,
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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.
16. 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.
17. 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.
18. 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
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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.
19. 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.
20. 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.
21. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all
appropriate employee withholdings.
22. 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.
23. Survival: Contractor’s indemnification shall survive the termination or expiration of
this Agreement for the maximum period allowed under applicable law.
24. 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.
25. Severability: If any portion of this Agreement is held to be void or unenforceable, the
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APPROVED AS TO FORM:
By_______________________________
Greg Sullivan, Bozeman City Attorney
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