Loading...
HomeMy WebLinkAbout23 - Professional Services Agreements - Richard Brown - Fred Willson Multiple Property Documentation DocuSign Envelope ID:A4AEF7A9-4B77-491C-AFDA-FB990E593241 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this 25 day of July 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, Richard Brown, 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 and Schedule 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 31, May 2024, 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. 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, Professional Services Agreement for Fred Willson Multiple Property Documentation Historical Research Page 1 of 13 DocuSign Envelope ID:A4AEF7A9-4B77-491C-AFDA-FB990E593241 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. 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. 7. indemnity/Waiver of Claims/Insurance: For other than professional services Professional Services Agreement for Fred Willson Multiple Property Documentation Historical Research Page 2 of 13 DocuSign Envelope ID:A4AEF7A9-4B77-491C-AFDA-FB990E593241 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 Professional Services Agreement for Fred Willson Multiple Property Documentation Historical Research Page 3 of 13 DocuSign Envelope ID:A4AEF7A9-4B77-491C-AFDA-FB990E593241 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. 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 Professional Services Agreement for Fred Willson Multiple Property Documentation Historical Research Page 4 of 13 DocuSign Envelope ID:A4AEF7A9-4B77-491C-AFDA-FB990E593241 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 Sarah Rosenberg, Historic Preservation Officer, 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 Professional Services Agreement for Fred Willson Multiple Property Documentation Historical Research Page 5 of 13 DocuSign Envelope ID:A4AEF7A9-4B77-491C-AFDA-FB990E593241 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 Richard Brown, 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, 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 PaV: The Contractor agrees that all hiring by Contractor of persons performing this Agreement shall be on the basis of merit and qualifications. Professional Services Agreement for Fred Willson Multiple Property Documentation Historical Research Page 6 of 13 DocuSign Envelope ID:A4AEF7A9-4B77-491C-AFDA-FB990E593241 As affirmed in Attachment B 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 Professional Services Agreement for Fred Willson Multiple Property Documentation Historical Research Page 7 of 13 DocuSign Envelope ID:A4AEF7A9-4B77-491C-AFDA-FB990E593241 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. Attorneys 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 Professional Services Agreement for Fred Willson Multiple Property Documentation Historical Research Page 8 of 13 DocuSign Envelope ID:A4AEF7A9-4B77-491C-AFDA-FB990E593241 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. Professional Services Agreement for Fred Willson Multiple Property Documentation Historical Research Page 9 of 13 DocuSign Envelope ID:A4AEF7A9-4B77-491C-AFDA-FB990E593241 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 May 31, 2024. **** 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, MOIVTANADocuSigned by: Richard Brown yy so2g� CONTRACTOR cDJocuSigned by: �'I I ���lN �o G s�9 H oa+ -0 By 251607FD8A824A6_. Jeff Mihelich, City Man Print Name: Print Title: k4 -Ai— Professional Services Agreement for Fred Willson Multiple Property Documentation Historical Research Page 10 of 13 DocuSign Envelope ID:A4AEF7A9-4B77-491C-AFDA-FB990E593241 APPROVED AS TO FORM: ocuSigned by: By_ 14s�-C)Ar-AAAP �aaa Greg Sullivan, Bozeman City Attorney Professional Services Agreement for Fred Willson Multiple Property Documentation Historical Research Page 11 of 13 DocuSign Envelope ID:A4AEF7A9-4B77-491C-AFDA-FB990E593241 Attachment A-SCOPE OF SERVICES AND SCHEDULE Background The City of Bozeman received a grant for$6000 from the Foundation for Montana History.This grant is to assist in documenting buildings designed by Fred Willson as a National Register Multiple Properties Submission to record written statements of historic context associated with Fred Willson (the Project). There are eight properties that are being researched for the Project by the Historic Preservation Advisory Board (HPAB) members. HPAB board members will be conducting some of the research and$3000 of this grant award is dedicated to hire Richard Brown,a local expert on Fred Willson, to compensate him for his time,findings and written work. Goals& Deliverables: Brown will assist as follows: - Contribute historical knowledge of Willson's personal and professional history; - Contribute historical knowlege of each property; - Collaborate with HPAB members to compile findings based on board member research and Brown's research - Any additional information or work as provided by Brown to complete the project - Deliverables will include documents of findings sent to Sarah Rosenberg to be used for the final grant submittal and the Multiple Properties Submission form Budget&Timeline - The City will pay Brown $360 per property. The total amount paid to Brown will not to exceed $3000 - Summer 2023: Brown to work with HPAB and Sarah Rosenberg, Historic Preservation Officer for the City of Bozeman, to compile findings and meet with individual board members to compare notes that will be used for final grant submission. - Fall 2023 —Winter 2024: If needed and if budget allows, provide additional information or edits to research findings. License Agreement: Richard Brown grants to the City an irrevocable right to use images or written word product he takes or creates during the scope of this project and/or for work previously done that he provides to the HPAB to use for this project. This right applies to all media now known or later developed, including, but not limited to print, digital, television, radio, video, and internet format. This license includes the right for the City to reproduce, distribute, and publicly display the project in all forms and for any purpose.The City's license does not invalidate or nullify any rights Richard Brown retains under U.S. Copyright law. The City's license is nonexclusive and Richard Brown retains control of images and work product should he wish to further publish or share with other entities. Richard Brown agrees to indemnify, defend,and hold harmless the City against any and all claims, liability,damage, loss,or expense, including reasonable attorneys'fees and expenses of litigation, incurred by the City for its use of this license. All reproductions by the City shall contain a credit Richard Brown. Professional Services Agreement for Fred Willson Multiple Property Documentation Historical Research Page 12 of 13 DocuSign Envelope ID:A4AEF7A9-4B77-491C-AFDA-FB990E593241 Attachment B—Nondiscrimination and Equal Pay Affirmation G�Y�lz+7 (r—, iQt fir/ (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, jQ l G AX 6�r,( &Q (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, baps: /egLialpay.rr-t ovJBestPracticc-/i rn lovers, or equivalent "best practices publication and has read the material. ram. Ag Name d title of person authorized to sign on behalf of submitter Professional Services Agreement for Fred Willson Multiple Property Documentation Historical Research Page 13 of 13