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HomeMy WebLinkAbout26 - Professional Services Agreements - CUSHING TERRELL - Federal Building Historic Preservation Professional Services Agreement for Architectural Services Page 1 of 10 PROFESSIONAL ARCHITECTURAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this 4 day of August, 2026 (“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, CUSHING TERRELL, with a mailing address of 411 East Main Street Suite 101, hereinafter referred to as “Architect.” 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 Architect as an independent 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. Effective Date: This Agreement is effective upon the Effective Date and will expire on the 4 day of August, 2026, unless earlier terminated in accordance with this Agreement. 3. Scope of Work/ Contract Documents: Architect will perform the work and provide architecture and historic preservation architectural services in support of the City’s application to acquire the Bozeman Federal Building through the Historic Surplus Property Program administered by the National Park Service on a time and materials basis. 4. Payment: City agrees to pay Architect on a time and materials basis not to exceed fifty thousand Dollars ($50,000) for services performed pursuant to the Scope of Services. 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 City and will become an additional Docusign Envelope ID: 5DFE0048-B311-8EF0-8308-3B88D7755BAB Professional Services Agreement for Architectural Services Page 2 of 10 charge over and above the contract amount. The parties must agree in writing upon any additional charges. 5. Architect’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 City plans , ordinances, rules, and regulations that in any manner may affect cost, progress or performance of the Scope of Services. b. Architect 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 must 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. 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 independent contractor for purposes of this Agreement and is not to be considered an employee or agent of City for any purpose. Architect is not subject to the terms and provisions of 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 City or otherwise bind City in any dealings between Architect and any third parties. Architect must 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 must maintain workers’ compensation coverage for all members and employees of Architect’s business, except for those members who are exempted by law. Architect must provide City with: (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. Docusign Envelope ID: 5DFE0048-B311-8EF0-8308-3B88D7755BAB Professional Services Agreement for Architectural Services Page 3 of 10 7. Indemnity: For other than professional services rendered, to the fullest extent permitted by law, Architect 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 Architect; or (ii) any negligent, reckless, or intentional misconduct of any of Architect’s agents. 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 Architect or Architect’s agents or employees. For 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, Architect must 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. Architect’s obligations in this Section must 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). Architect’s indemnity under this Section must 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 Architect to assert its right to defense or indemnification under this Agreement or under Architect’s applicable insurance policies required below, the City must 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 Architect was obligated to defend the claim(s) or was obligated to indemnify the City for a claim(s) Docusign Envelope ID: 5DFE0048-B311-8EF0-8308-3B88D7755BAB Professional Services Agreement for Architectural Services Page 4 of 10 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. These obligations shall survive termination of this Agreement, and the services performed hereunder. 8. Insurance: In addition to and independent from Architect’s indemnity obligations under Section 8, Architect must, at Architect’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 Architect in this Section. The insurance coverage must not contain any exclusion for liabilities specifically assumed by Architect in Section 7. The insurance must be occurrence-based, and cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by City without limit and without regard to the cause. Architect must furnish to 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 per annual aggregate; • Commercial General Liability - $1,000,000 per occurrence; $2,000,000 per annual aggregate; • Automobile Liability - $1,000,000 property damage/bodily injury per accident; and • Professional Liability - $1,000,000 per claim; $2,000,000annual aggregate. The above amounts shall be exclusive of defense costs. City must be endorsed as an additional 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 approved by City and must include no less than a thirty (30) day notice of cancellation or non- renewal. Architect must notify City within two (2) business days of Architect’s receipt of notice that any required insurance coverage will be terminated or Architect’s decision to terminate any required insurance coverage for any reason. Docusign Envelope ID: 5DFE0048-B311-8EF0-8308-3B88D7755BAB Professional Services Agreement for Architectural Services Page 5 of 10 City must approve all insurance coverage and endorsements prior to Architect commencing work. Alternative: Architect must provide City a certificate of insurance prior to commencing work. City must approve the limits shown on the certificate prior to commencing work. City’s approval of the limits does not relieve Architect of Architect’s obligation to ensure the insurance meets the requirements. 9. Waiver of Claims: Architect also waives any and all claims and recourse against 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. 10. Professional Service: Architect agrees that all services and work performed hereunder will be accomplished in a professional manner. Architect must perform its services consistent with the professional skill and care ordinarily provided by architects practicing in the same or similar locality under the same or similar circumstances. Architect must perform its services as expeditiously as is consistent with such professional skill and care and the orderly progress of the Project. 11. Compliance with Laws: Architect agrees to comply with all federal, state and local laws, ordinances, rules and regulations, including the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA. Architect agrees to purchase a City business license. 12. Nondiscrimination and Equal Pay: Architect agrees that all hiring by Architect of persons performing this Agreement must be on the basis of merit and qualifications. Architect will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. 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. Architect must 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. Docusign Envelope ID: 5DFE0048-B311-8EF0-8308-3B88D7755BAB Professional Services Agreement for Architectural Services Page 6 of 10 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 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 must require these nondiscrimination terms of its subcontractors providing services under this Agreement. 13. 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 must 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 must be provided in writing and hand- delivered or mailed to the Parties at the addresses set forth in the first paragraph of this Agreement. This Agreement may be terminated by the City, in whole or in part, upon written notice to the Architect, when, in the sole opinion and discretion of the City, the City determines this to be in its best interest. The termination for convenience is effective on the date specified in the Owner’s written notice. Termination for convenience may entitle the Architect to payment for reasonable costs allocable to the contract for work or costs incurred by the Architect up to the date of termination. The Architect must not be paid compensation as a result of a termination for convenience that exceeds the amount encumbered to pay for work to be performed under the Agreement. 14. Modification and Assignability: This document contains the entire agreement between 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 City. Any subcontractor or assignee will be bound by the terms and conditions of this Agreement. Docusign Envelope ID: 5DFE0048-B311-8EF0-8308-3B88D7755BAB Professional Services Agreement for Architectural Services Page 7 of 10 15. Ownership and Publication of Materials: Provided all payments have been made to Architect in accordance with this Agreement, all reports, information, data, and other materials prepared by Architect pursuant to this Agreement are City’s exclusive property. City will own all copyrights in and to any reports, information, data and other materials prepared by Architect. 16. Generative Artificial Intelligence (AI): City’s representative may, in their discretion, permit or deny Contractor’s use of Generative AI. If Contractor is permitted to use Generative AI, Contractor agrees to review any work created by Generative AI for accuracy, bias, and copyright infringement. Contractor agrees it will never submit any confidential or personal identifiable information acquired through this Agreement into a Generative AI system. For the purposes of this section, Generative AI is defined as a deep learning model that can generate high quality content such as stories or writings, images, voice replication and music. 17. Representatives and Notices: a. City’s Representative: City’s Representative for the purpose of this Agreement will be David Fine, Economic Development Manager, or such other individual as City designates in writing. Whenever approval or authorization from or communication or submission to City is required by this Agreement, such communication or submission must be directed to the City’s Representative and approvals or authorizations must 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 City in writing and may receive approvals or authorization from such persons. b. Architect’s Representative: Architect’s Representative for the purpose of this Agreement will be Alex Russell, Principal, or such other individual as Architect designates in writing. Whenever direction to or communication with Architect is required by this Agreement, such direction or communication must 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 must be in writing and must be provided to the Representatives named in this Section. Notices are 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 Docusign Envelope ID: 5DFE0048-B311-8EF0-8308-3B88D7755BAB Professional Services Agreement for Architectural Services Page 8 of 10 mailed by ordinary mail to the address shown above, postage prepaid. 18. Applicable Law: This Agreement and any extensions hereof must be governed and construed in accordance with the laws of the State of Montana. 19. Reports/Accountability/Public Information: Architect agrees to develop and/or provide documentation as requested by City demonstrating Architect’s compliance with the requirements of this Agreement. Architect must allow City, its auditors, and other persons authorized by 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. Architect must not issue any statements, releases or information for public dissemination without prior approval of City. 20. 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. 21. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 22. Taxes: Architect is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. 23. Dispute Resolution: a. Any claim, controversy, or dispute between the Parties, their agents, employees, or representatives must 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. Docusign Envelope ID: 5DFE0048-B311-8EF0-8308-3B88D7755BAB Professional Services Agreement for Architectural Services Page 9 of 10 24. Survival: Architect’s indemnification must survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 25. Headings: The headings used in this Agreement are for convenience only and are not to be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. 26. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 27. Applicable Law: The Parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 28. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the Parties. 29. 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. 30. 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 must 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. 31. Consent to Electronic Signatures: The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** Docusign Envelope ID: 5DFE0048-B311-8EF0-8308-3B88D7755BAB Professional Services Agreement for Architectural Services Page 10 of 10 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 ____________________________________ ARCHITECT (Type Name Above) By________________________________ By__________________________________ Chuck Winn, City Manager Print Name: Print Title: ____________________________ APPROVED AS TO FORM: By_______________________________ Greg Sullivan, Bozeman City Attorney Docusign Envelope ID: 5DFE0048-B311-8EF0-8308-3B88D7755BAB Alex Russell Cushing Terrell Principal