HomeMy WebLinkAbout09- Forestry Services AgreementFORESTRY SERVICES AGREEMENT
THIS IS AN AGREEMENT made as of ~2bruprti i'1, 07009 ,between THE CITY OF BOZEMAN, a
Municipal Corporation, P.O. Box 1230, Bozeman, ontana, 59771-1230 (OWNER) and PECK FORESTRY,
INC, P.O. Box 238, Bozeman, Montana 59771 (FORESTER).
Whereas the accomplishment of the work and services described in this Agreement is essential to the OWNER'S
management of forested lands in the Sourdough (aka Bozeman) Creek watershed.
Whereas the OWNER intends to and has selected the FORESTER to provide necessary and forestry services for the
project.
Whereas the FORESTE~ represents that it is willing and qualified to perform the forestry services for this project
described in this Agreement.
Therefore, in consideration of the foregoing recitals and the mutual covenants and conditions contained herein, the
parties agree as follows:
ARTICLE 1 -FORESTRY SERVICES
1.1. The detailed description of the specific project components is described as follows:
FORESTER shall prepare and develop a forest management plan for the timber lands within the OWNER'S
property located in the Sourdough (aka Bozeman) Creek watershed. The management plan will address long term forestry
and silviculture applications of these lands with respect to the OWNER'S overall management goals of the watershed.
The plan will be based upon an extensive field inventory, performed in accordance with standards of the forestry and
silviculture industries. Data collected from the inventory will produce the necessary information for the plan. OWNER'S
timber lands will be divided into logical management units and further divided into timber stands.
1.2. The scope of services under this contract is set forth in this agreement.
ARTICLE 2 -FORESTER'S RESPONSIBILITIES
2.1. FORESTER shall perform for OWNER forestry services in all phases of the Project to which this Agreement
applies as hereinafter provided. These services will include, but not be limited to, serving as OWNER's forestry
representative for the Project, providing forestry consultation and advice and furnishing customary services incidental
thereto.
2.2. The FORESTER shall furnish all labor, materials, equipment, supplies, and incidentals necessary to conduct and
complete the FORESTER'S portions of the Project and to prepare and deliver to the OWNER all data, reports, plans,
specifications, and recommendations as designated herein.
2.3. The FORESTER shall ascertain such information as may have a bearing on the work from local units of
government, public, and private organizations and shall be authorized to procure information from other authorities as to
the extent of these contacts and the results thereof.
2.4. The FORESTER'S work shall be performed in accordance with the standards of the forestry and silviculture
industries.
2.5. The FORESTER shall name aPrincipal-In-Charge for the duration of the project. The Principal-In-Charge shall
be Gary S. Peck .
2.6. The FORESTER shall name a Project Manager who shall be .the liaison between the FORESTER and the
OWNER. The Project Manager shall be Gary S. Peck .The OWNER may name a Task Director who would be the
liaison between the FORESTER and the OWNER during the design segment of the Project.
2.7. The FORESTER shall submit an estimated progress schedule at the beginning of the work, and monthly progress
reports upon initiation of the work thereafter until the project is completed.
ARTICLE 3 -OWNER'S RESPONSIBILITIES
3.1 The OWNER shall name a Task Director who shall be the liaison between the FORESTER and the OWNER
during the Project. The Task Director designated shall be Brian Hesston, P.E. .
3.2 The OWNER shall have the right of review and examination of the FORESTER'S work at all times.
3.3 The OWNER shall make available all documents indicating the existing nature of OWNER'S timber lands.
ARTICLE 4 -BASIC FORESTRY SERVICES
The FORESTER shall render Forestry Services as follows:
4.1 INVENTORY AND DATA COLLECTION PHASE
After written authorization to proceed, FORESTER shall:
4.1.1 Consult with OWNER to clarify and define OWNER's requirements for the Project and review
available data.
4.1.2 Advise OWNER as to the necessity of OWNER's providing or obtaining from others, data or services
and assist OWNER in obtaining such data or services.
4.1.3 Identify and analyze requirements of goven~mental authorities having jurisdiction to approve the design
of the Project and participate in consultations with such authorities.
4.1.4. Perform field inventory in accordance with standard industry practices. Data collection will produce
the necessary information for development of a forest management plan. The inventory will occur on the "stand
basis" with sampling occurring within the respective stands. Primary timber stand components are tree size,
species composition, and stocking levels. Data collected will generate information to define silvicultural
prescriptions, logging methods, potential road location, cutting units, slash disposal, and erosion control.
4.1.5. Adhere to Montana's Forestry Best Management Practices.
4.2 FOREST MANAGEMENT PLAN PREPARATION
Upon completion of the forest inventory and data collection phase, FORESTER shall:
4.2.1 Analyze collected data and prepare a forest management plan (hereafter referred to as "plan") for
the OWNER'S timber lands. The plan shall be completed in accordance with standards of the
forestry and silviculture industries. The plan will, at a minimum, define silvicultural prescriptions,
logging methods, potential road locations, cutting units, slash disposal, and erosion control.
4.2.2 The plan shall keep paramount and principal the long term goals of the watershed, realizing that
the watershed is a critical source component of the OWNER'S municipal water supply.
4.2.3 The plan will work in concert, to the degree practicable, with the findings and mitigation measures
outlined by the United States USDA Forest Service, Gallatin National Forest (Forest Service) in
their Final Environmental Impact Statement prepared for the Bozeman Municipal Watershed
Project. The plan will be provided to the Forest Service for their review and comment upon draft
completion. The final plan will incorporate, to the degree practicable and further based upon the
professional judgment of the FORESTER and OWNER, recommendations of the Forest Service.
4.2.4 The plan will determine and ensure that access, both legal and physical, is, or can be, provided
commensurate with the treatment recommendations of respective timber stand units.
4.2.5 The plan will be sensitive to and incorporate any requirements from government entities having
approval authority and/or jurisdiction over activities performed in the municipal watershed.
4.2.6 Adhere to Montana's Forestry Best Management Practices.
A draft version of the plan will be completed by June 30, 2009, unless the draft deadline is modified at the written
request of the FORESTER and agreed to by OWNER.
ARTICLE 5 -ADDITIONAL SERVICES
5.1. If OWNER wishes FORESTER to perform any of the following Additional Services, OWNER shall so instruct
FORESTER in writing, and FORESTER shall perform or obtain from others such services and will be paid therefore as
provided in the Agreement:
5.1.1. Preparation of applications and supporting documents for governmental agencies in addition to those
required under Basic Services; preparation or review of environmental studies and related services; and
assistance in obtaining environmental approvals.
5.1.2. Services resulting from significant changes in the general scope, extent or character of the Project or
major changes in documentation previously accepted by OWNER where changes are due to causes beyond
FORESTER'S control.
5.1.3 Attending public meetings, as necessary.
5.1.4. Providing other services not otherwise provided for in the Agreement, including services normally
furnished by the OWNER as elsewhere herein described.
ARTICLE 6 -COMPENSATION FOR FORESTRY SERVICES
6.1 LUMP SUM AGREEMENT FOR BASIC SERVICES AND EXPENSES OF FORESTER
6.1.1 Payment. The OWNER shall for the Basic Forestry Services under Article 4 of this agreement pay a
total sum in the amount of $12,000.00 for such services.
6.1.2 Payment Schedule. Total cumulative payments for the basic forestry services (Article 4) shall not
exceed the following ceilings:
$ 10,800.00 (90 % of lump sum total) until the draft version of the plan has been submitted to
the OWNER..
6.1.3 General. FORESTER shall submit monthly statements for services rendered once work has been
initiated. The statements shall be based upon FORESTER'S estimate of the proportion of the total services
actually completed at the time of billing, subject to any limitations on Payments based on completion of tasks or
specific retainage requirements pursuant to the payment provisions of the Agreement.
6.1.4 Reimbursable Expenses. Only those expenses specifically identified for payment under section 7.3 of
this Agreement are reimbursable. All other expenses are included in the Lump Sum Payment for the Basic
services (Article 4) and are not separately reimbursable.
6.1.5 Payment for Additional Services (Article 5), specifically agreed to in writing by the OWNER and
FORESTER, will occur in accordance with the rate schedule under Section 7.2 of this Agreement.
ARTICLE 7 -MEANING OF TERMS
7.1 AGREEMENT
As used herein the term "this Agreement" refers to the contents of this document and its Exhibits attached hereto and
referred to as if they were part of one and the same document.
7.2 DIRECT LABOR COSTS
Direct Labor Costs used as a basis for payment mean the actual salaries and wages paid to all FORESTER'S personnel
engaged directly on the Project, including, but not limited to, engineers, architects, surveyors, designers, drafters,
specification writers, estimators, other technical and business personnel; but does not include indirect payroll related costs
or fringe benefits. For the purposes of this Agreement the principals and employees of the FORESTER maximum billable
Direct Labor Costs are:
Principals $ 72.00 /hour
Project Manager $ 72.00 /hour
Senior Engineer $ 72.00 /hour
Staff Engineer $ 44.00 /hour
Senior Technicians $ 48.00 /hour
CADD Drafter $ 48.00 /hour
Technicians $ 32.00 /hour
Construction Inspector $ 50.00 /hour
Two Person Survey Crew $ 92.00 /hour
Clerical $ 30.00 /hour
7.3 REIMBURSABLE EXPENSES
Reimbursable Expenses mean the actual expenses incurred by FORESTER or FORESTER'S independent professional
associates or consultants directly in connection with the Project, such as expenses for: transportation and subsistence
incidental thereto; obtaining bids or proposals from Contractor(s); subsistence and transportation of Resident Project
Representatives and their assistants; toll telephone calls and telegrams; reproduction of reports, Drawings, Specifications,
Bidding Documents and similar Project-related items; and if authorized in advance by OWNER, overtime work requiring
higher than regular rates. In addition, when compensation for Basic Services is on the basis of Direct Labor Costs method
of payment, Reimbursable Expenses will also include the amount billed to FORESTER by special consultants employed
by FORESTER and authorized by OWNER (other than as an authorized Additional Services) and will also include
expenses incurred for computer time and other specialized equipment, including an appropriate charge for previously
established programs and expenses of photographic production techniques.
ARTICLE 8 -PAYMENT PROVISIONS
8.1 TIMES OF PAYMENTS. FORESTER may submit monthly statements for Basic Services and approved.
Additional Services rendered and for Reimbursable Expenses incun•ed; however, payments shall not exceed the ceilings
provided in 6.1. Final payment shall be made only after acceptance of the plan by the OWNER. If OWNER disputes the
amount of the billing, OWNER will notify the FORESTER in writing within ten (10) calendar days of the receipt of bill of
the dispute.
8.2 REQUESTS FOR PAYMENT. Each request for payment shall include a documentation summary of the
period incremental man hours incurred, direct labor rates and billed rates, detail of reimbursable costs, total period billing,
and total cumulative billing. When requested by OWNER services for distinct project segments shall be accounted and
billed separately. Pay requests shall be accompanied by the OWNER'S Accounts Payable Form, signed by the
FORESTER.
8.3 BUSINESS LICENSE. FORESTER shall obtain a business license from the City of Bozeman prior to entering
into this Agreement.
8.4 PAYMENT UNDER TERMINATION. In the event of termination by the OWNER upon the completion of
any phase of the Basic Services, progress payments due FORESTER for services rendered through such phase shall
constitute total payment for such services. In the event of such termination by OWNER during any phase of the Basic
Services, FORESTER also will be reimbursed for the charges of pre-approved independent professional associates and
consultants employed by FORESTER to render Basic Services, and paid for services rendered during that phase on the
basis of the payment provisions of the Agreement. In the event of any such termination, FORESTER will be paid for
unpaid pre-approved Additional Services and unpaid Reimbursable Expenses which are authorized under this agreement.
ARTICLE 9 -GENERAL CONSIDERATIONS
9.1 TERMINATION OF AGREEMENT
9.1.1 The sole right is hereby reserved to the OWNER to terminate this Forestry Agreement for any and all
causes or for its convenience at any time upon fifteen (15) days written notice to the FORESTER.
9.1.2 If termination for default is effected by the OWNER, an equitable adjustment in the price provided for
in this Agreement shall be made, but (1) no amount shall be allowed for anticipated profit on unperformed
services or other work, and (2) any payment due to the FORESTER at the time of termination may be adjusted to
cover any additional costs to the OWNER because of the FORESTER'S default. If termination for convenience
is effected by the OWNER, the equitable adjustment shall include a reasonable profit, as determined by owner,
for services or other work performed. The equitable adjustment for any termination shall provide for payment to
the FORESTER for services rendered and expenses incurred prior to the termination, in addition to termination
settlement costs reasonably incurred by the FORESTER relating to commitments which had become firm prior to
the termination.
9.1.3 Upon receipt of a termination action under paragraph 9.1.2, the FORESTER shall (1) promptly
discontinue all affected work (unless the notice directs otherwise), and (2) deliver or otherwise make available to
the OWNER within ten (10) days copies of all data, design drawings, specifications, reports, estimates,
summaries and such other information and materials as may have been accumulated by the FORESTER in
performing this Agreement, whether completed or in process.
9.1.4 In the event this Contract is terminated prior to completion, the original copies of the FORESTER'S
data, recommendations, plans, specifications, analysis and other related documents prepared by the FORESTER
prior to said termination shall be delivered to and become the property of the OWNER.
9.1.5 Upon termination, the OWNER may take over the work and may award another party an Agreement to
complete the work under this Agreement.
9.1.6 OWNER'S right to terminate is in addition to any other remedies OWNER may have under the law.
9.2 INSPECTION AND AUDIT
All books, papers, records, payrolls, vouchers and invoices relating to costs and expenditures incurred as to the
performance of the services by the FORESTER hereunder shall be made available to the OWNER, or their authorized
representatives for audit and review, at the FORESTER'S respective offices at all reasonable times during the contract
period and for three years from the date of final payment.
9.3 EMPLOYMENT
The FORESTER warrants that he has not employed or retained any company or persons, other than a bona fide employee,
working solely for the FORESTER, to solicit to secure this contract, and that he has not paid or agreed to pay any
company or person, other than bona fide employees working solely for the FORESTER, any fee, commission, percentage,
brokerage fee, gifts or any other considerations contingent upon or resulting from the award or making of this Contract.
For breach or violation of this warranty, the OWNER shall have the right to annul the Contract without liability or in its
discretion to deduct from the price or consideration or otherwise recover the full amount of such fee, commission,
percentage, brokerage fee, gift or contingent fee.
All employees of the FORESTER or other persons while engaged in the performance of work or services required by the
FORESTER shall be considered employees of the FORESTER only and not of the OWNER.
9.4 NONDISCRIMINATION
The FORESTER will not discriminate on the basis of race, color, religion, creed, political ideas, sex, age, marital status,
national origin or disability in employment or provision of services. The FORESTER 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.
9.5 SUBLETTING OR ASSIGNING OF WORK
The FORESTER shall not sublet or assign any of the work covered herein without prior written approval of the OWNER.
9.6 STANDARD OF CARE
In providing services under this agreement, the FORESTER will perform in a manner consistent with the degree of care
and skill ordinarily exercised by members of the same profession currently practicing under similar circumstances. If any
service should be found to be not in conformance with this standard, the FORESTER shall, at the OWNER's request, re-
perform the service at its own expense. FORESTER shall also, at its own expense, make such changes, modifications or
additions to the project which are made necessary as a result of the initial non-performance or the re-performance of
services. The OWNER's rights herein are in addition to any other remedies the OWNER may have under the law.
9.7 LEGAL RELATIONS
9.7.1 The FORESTER shall comply with all Federal, State, and Local laws and ordinances applicable to the
work to be done.
9.7.2 The FORESTER agrees to indemnify, hold harmless, and defend the OWNER, its officers, directors,
agents, and employees from and against any suits, causes of action, claims, demands, damages, costs,
expenses, obligations, and liability of any character, including attorney's fees, arising out of or resulting
from or in connection with the FORESTER'S negligent performance of the services specified in this
agreement. In the event the OWNER is found proportionately responsible, the FORESTER will be
held responsible only for those damages, costs, attorney's fees, and liabilities as are attributable to the
FORESTER'S percent of fault as compared with 100% of the fault giving rise to the damages.
9.7.3. The FORESTER agrees to indemnify, hold harmless and defend the OWNER, its officers, directors,
agents, and employees from and against any suits, causes of action, claims, demands, damages, costs,
expenses, obligations, and liability of any character, including attorney's fees, arising out of or resulting
from or in connection with the FORESTER'S non-negligent performance of the services specified in
this agreement. In the event the OWNER is found proportionately responsible, the FORESTER will be
held responsible only for those damages, costs, attorney's fees, and liabilities as are attributable to the
FORESTER' S percent of fault as compared with 100% of the fault giving rise to the damages.
9.7.4 In an appropriate case in which attorney's fees are awarded to the OWNER following a wrongful
refusal of a tender of defense, said fees may include fees and salary paid by the OWNER to the City
Attorney or other in-house counsel.
9.7.5 The indemnity required herein shall not be limited by reason of the specification of any particular
insurance coverage in this agreement.
9.7.6 The FORESTER shall perform this agreement as an independent contractor, and as such, is responsible
to the OWNER only as to the results to be obtained in the work herein specified, and to the extent that
the work shall be done in accordance with the terms, plans and specifications. The FORESTER shall
have and maintain complete control over all of its employees, subcontractors, agents and operations,
being responsible for any required payroll deductions and providing required benefits, such as, but not
limited to, worker's compensation with statutory limits, and unemployment insurance.
9.8 INSURANCE
The FORESTER shall secure and furnish to the OWNER certificate of insurance, therein, naming the OWNER as an
additional insured, to include thirty (30) days notice of cancellation ornon-renewal.
Without limiting any of FORESTER'S obligations hereunder, FORESTER shall secure and maintain, until the work is
completed and accepted by the OWNER, insurance coverage naming the OWNER as additional insured with minimum
insurance coverage as follows:
Type of Coverage
Employers' Liability
General Liability:
Bodily Injures Property
Damage Single and combined
Automobile:
Limits
$ 100,000 per accident
$ 1,500,000 per accident
$ 500,000 each person
Bodily Injury covering all
automobiles, trucks,
tractors, trailers, or
other automotive equip-
ment whether owned or
rented by Forester or
owned by employees of Forester.
Propert~ge covering
all automobiles, trucks,
tractors, trailers or other
automotive equipment whether
owned or rented by Forester
or owned by employees of
Forester
OR
$1,000,000 each occurrence
500 000 each occurrence
Bodily Injur~perty $ 500,000 each occurrence
Damage Single and combined
Professional Errors & Omissions: $ 1,000,000 per claim and aggregate each occurrence
9.9 ENDORSEMENT
The FORESTER shall place his endorsement on all drawings and other data furnished by him.
9.10 OWNERSHIP OF DOCUMENTS
The parties admit and agree the documents produced under this agreement are not intended or represented to be suitable
for reuse by OWNER or any other individual on any other project. Any reuse without written verification or adaptation by
FORESTER will be at OWNER's sole risk and without liability or legal exposure to FORESTER, or to FORESTER'S
independent professional associates or consultants. Files in electronic media format of text, data, graphics, or of other
types that are furnished by FORESTER to OWNER are only for convenience of owner. Any conclusion or information
obtained or derived from such electronic files will be at the user's sole risk.
9.11 PUBLIC INFORMATION
The FORESTER shall not issue any statements, releases or information for public dissemination without prior approval of
the OWNER.
9.12 PROPRIETARY RIGHTS
If patentable discoveries or inventions should result from work required herein, all rights accruing from such discoveries
or inventions shall be joint property of the FORESTER and the OWNER. Provided that the OWNER, state agencies or
political subdivisions and the United States Government shall have the irrevocable, nonexclusive, nontransferable and
royalty-free license to use each invention in the manufacture, use and disposition, according to law, of any article or
material, and in the use of any method that maybe developed as part of the work described and contemplated herein.
9.13 RECORDS
The FORESTER shall maintain accounting records and other evidence pertaining to the cost incurred and to make the
records available at all reasonable times during the Contract term and for one (1) year from the date of final payment.
Such accounting records and other evidence pertaining to the cost incurred will be made available for inspections by
OWNER.
9.14 SUCCESSORS IN INTEREST
The covenants, agreements and all statements in this Contract apply to and shall be binding on the heirs, personal
representatives, successors and assigns of the respective parties.
9.15 ATTORNEY'S FEES AND COSTS
That in the event it becomes necessary for either Party of this Contract to retain an attorney to enforce any of the terms or
conditions of this Contract 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 to include City
Attorney.
9.16 MODIFICATIONS AND AMENDMENTS
That any amendment or modification of this Contract or any provisions herein shall be made in writing or executed in the
same manner as this original document and shall after execution become a part of this Contract.
In witness Whereof, the Parties hereto do make and execute this Agreement.
CITY OF BOZEMAN, MONTANA
BY: ~.
(City Manager)
FORESTER
BY: ~/
(President)
DATE: ~ "'~ ~j- ~ I
ATTEST:
BY:
Cler of mmis ion)
DATE: 2- ~~' ~~