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HomeMy WebLinkAbout12- Confluence Consulting Professional Services Agreement for Bozeman Creek design so w r Co. 0 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this day of ►+��• , 20 I.? by and between the CITY OF BOZEMAN, MONTANA, a municipal corporation organized and existing under the laws of the State of Montana, 121 North ouse Street, Bozeman, Montana 59771, hereinafter referred to as "City," and, aeoce- &W-9k, /k x1133' Bozeman, MT 59771, hereinafter referred to as "Consultant." 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: The Consultant will develop a detailed stream enhancement design for approximately 800 feet of Bozeman Creek through Bogert Park in order to improve the creek's ecological structure and function and its value to park users and the larger community. The City and Consultant enter into this agreement to: (i) facilitate the completion of project goals; (ii) ensure compliance with City reporting requirements; and (iii) provide timely payment for services provided by Consultant. 2. Effective Date: This Agreement is effective upon the date of its execution and will terminate upon completion of all work described in Attachment A, including the scope of work for design stage 1, completion of design, permitting assistance and construction supervision. 3. Scope of Work: Consultant will perform the work and provide the services in accordance with the requirements of the scope of work attached hereto as Attachment A. The attached scope of work encompasses the first stage of design of this project, which will design the project to approximately the 30% level of completion. The scope of work for additional stages is to be determined. The City shall have the right of review and examination of Consultant's work at all times. For conflicts between this Agreement and the Scope of Work, unless specifically provided otherwise, the Agreement governs. 4. Payment: Consultant is to complete stage 1 of design and produce the specified project deliverables for a total, fixed cost of$20,000. This figure includes all labor, equipment, materials and expenses. Deliverables and deadlines are specified in Attachment A. Work may begin once City so notifies Consultant. Consultant shall be paid a maximum of$20,000 for Design Stage 1 under the under the following payment schedule: Page w of • A maximum of$15,000 upon City receipt of Deliverables 1 and 2. • The balance shall be payable upon City receipt and approval of Deliverables 3 and 4.. Payment for additional work under this contract is to be determined. 5. Consultant's Representations: To induce City to enter into this Agreement, Consultant makes the following representations: a. Consultant has familiarized itself with the nature and extent of this Agreement, the Scope of Work, and with all local conditions and federal, state and local laws, growth policies, adopted plans of the City, ordinances, rules, and regulations that in any manner may affect cost, progress or performance of the Scope of Work. b. Consultant represents and warrants to City that it has the experience and ability to perform the services required by this Agreement; that it will perform said 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: The parties agree that Consultant is an independent contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Consultant 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. Consultant is not authorized to represent the City or otherwise bind the City in any dealings between Consultant and any third parties. Consultant shall comply with the applicable requirements of the Workers' Compensation Act, Title 39, Chapter 71, MCA, and the Occupational Disease Act of Montana, Title 39, Chapter 71, MCA. Consultant shall maintain workers' compensation coverage for all members and employees of Consultant's business, except for those members who are exempted by law. Consultant shall furnish the City with copies showing one of the following: (1) a binder for workers' compensation coverage by an insurer licensed and authorized to provide workers' compensation insurance in the State of Montana; or (2) proof of exemption from workers' compensation granted by law for independent contractors. 7. Indemnity/Waiver of Claims/Insurance. For other than professional services rendered, to the fullest extent permitted by law, Consultant agrees to defend, indemnify, and hold the City hannless against claims, demands, suits, damages, losses, and expenses connected therewith that may be asserted or claimed against, recovered from or suffered by the City by reason of any injury or loss, including but not limited to, personal injury, including bodily injury or death, Page 2 of 6 property damage, occasioned by, growing out of, or in any way arising or resulting from any intentional or negligent act on the part of Consultant or Consultant's agents or employees. For the professional services rendered, to the fullest extent permitted by law, Consultant 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 willful misconduct of the Consultant or Consultant's agents or employees. Consultant also waives any and all claims and recourse against the City or its officers, agents or employees, 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 his 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. Should City be required to bring an action against the Consultant to assert its right to defense or indemnification under this Agreement or under the Consultant'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 Consultant was obligated to defend the claim(s) or was obligated to indemnify the City for a claim(s) or any portion(s)thereof. The above obligations shall survive termination of this agreement. In addition to and independent from the above, Consultant shall secure insurance coverage acceptable to the City and furnish to the City an accompanying certificate of insurance issued by a company authorized to do business in the State of Montana in amounts not less than as follows: • Workers' Compensation - statutory • Employers' Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate • Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate • Automobile Liability - $1,000,000 property damage/bodily injury; $2,000,000 annual aggregate • Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate The City of Bozeman, its officers, agents, and employees, shall be endorsed as an additional or named insured on a primary non-contributory basis on both the Commercial General and Automobile Liability policies. The insurance and required endorsements must be in a form suitable to City and shall include no less than a thirty (30) day notice of cancellation or non-renewal. The City must approve all insurance coverage and endorsements prior to the Consultant commencing work. 8. Professional Service: Consultant agrees that all services and work performed hereunder will be accomplished in a professional manner. For work conducted by a licensed Page 3 of 6 professional engineer, the Consultant shall place his endorsement on all drawings and other data furnished by it. 9. Compliance with Laws: Consultant 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. Consultant agrees to purchase a City business license. 10. Nondiscrimination: The Consultant will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Consultant 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 Consultant shall be subject to and comply with Title VI of the Civil Rights Act of 1464; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. The Consultant shall require these nondiscrimination terms of its sub- consultants providing services under this agreement. 11. Default and Termination: The sole right is hereby reserved to the City to terminate this Agreement for any and all causes or for its convenience at any time upon fifteen (15) days written notice to the Consultant. If termination for default is effected by the City, 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 Consultant at the time of termination may be adjusted to cover any additional costs to the City because of the Consultant's default. If termination for convenience is effected by the City, the equitable adjustment shall include a reasonable profit, as determined by City, for services or other work performed. The equitable adjustment for any termination shall provide for payment to the Consultant for services rendered and expenses incurred prior to the termination, in addition to termination settlement costs reasonably incurred by the Consultant relating to commitments which had become firm prior to the termination. Upon receipt of a termination action under this section, the Consultant shall (1) promptly discontinue all affected work (unless the notice directs otherwise), and (2) deliver or otherwise make available to the City 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 Consultant in performing this Agreement, whether completed or in process. In the event this Agreement is terminated prior to completion, the original copies of the Consultant's data, recommendations, plans, specifications, analysis and other related documents prepared by the Consultant prior to said termination shall be delivered to and become the property of the City. Page 4 of 6 Upon termination, the City may take over the work and may award another party an Agreement to complete the work under this Agreement. City's right to terminate is in addition to any other remedies City may have under the law. The above remedies are cumulative and not exclusive. Use of one remedy does not preclude use of the others. Notices shall be provided in writing and hand-delivered or mailed to the parties at the addresses set forth in the first paragraph of this Agreement. 12. Modification and Assignability: This document contains the entire 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 Consultant may not subcontract or assign Consultant'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 all of the terms and conditions of this Agreement. 13. Ownership and Publication of Materials: All reports, information, data, and other materials prepared by the Consultant pursuant to this Agreement, except those separately identified in the Scope of Work or in other written agreements between the parties, are owned by the City. No material produced in whole or in part under this Agreement may be copyrighted or patented in the United States or in any other country without the prior written approval of the City. 14. Repo rts/Accounta WHOM ublie Information: Consultant agrees to develop and/or provide documentation as requested by the City demonstrating Consultant's compliance with the requirements of the Grant and this Agreement. Consultant 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 Consultant pursuant to this Agreement and the Grant was used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The Consultant shall not issue any statements, releases or information for public dissemination without prior approval of the City. 15. Liaison: City's designated�liZW_n with Consultant is Ron Dingman and Consultant's designated liaison with City is,;4 !� 16. Applicability: This Agreement and any extensions hereof shall be governed and construed in accordance with the laws of the State of Montana. 17. Non-Waiver: A waiver by either party 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. 18. Attorney's Fees and Costs: That in the event it becomes necessary for either Party of this Agreement 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 Page 5 of 6 entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel to include City Attorney. IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first above written. CITY OF BOZEMAN, MONTANA By: By: T _ Chris Kukulski, City Manager CONS TANT�_ / Print Name• Print Title: SCI Pi • © FB n e ATTEST: u. \ • r By: _ Staci nike "SC1 ,-C�t' Jerk APPROVED AS 'I'OI+O �'rI By , (X4L Gre u[l-1van, City Attorney Page 6 of Attachment A: Scope of Work Design for the Bozeman Creek at Bogert Park Enhancement Project will occur in two stages. This Scope of Work addresses only Stage 1, which will design the project approximately to the 30% level. Stage 1 deliverables are as specified below, and will provide the City with sufficient information to negotiate agreements with adjacent landowners, to articulate project and design intentions to stakeholders, to estimate project costs to enable grant applications for Stage 2, and for preliminary consultation with permitting agencies if appropriate. Work may begin once the City notifies the Consultant. Stage 2 of the project includes completion of the design and project construction and is dependent on funding that is not yet secured. Upon acquisition of the necessary funding and at the sole discretion of the City, the Consultant may be selected to complete the design and oversee construction of the project to its completion. The entire design project, including permitting assistance and construction supervision, will include the following elements. 1) Design and preparation of detailed plans and specifications depicting the proposed creek enhancement, including the following elements: channel geometry and alignment; bank and bed configuration, materials and roughness elements; floodplain topography; riparian and streambank planting plans, including vegetation to be removed; and stream access sites. Plans are to be guided by the concept plan developed by the Bozeman Creek Enhancement Committee. 2) Design and preparation of detailed plans and specifications for a new footbridge spanning the re-constructed creek channel and floodplain. 3) Design and preparation of detailed plans and specifications for landscape elements to direct park users to hardened access sites and creek viewing areas while protecting other areas of the restored creek and riparian area from overuse. Design of trails connecting the new footbridge with Koch and Story Streets and other areas of Bogert Park. 4) Design and preparation of detailed plans and specifications for infrastructure relocation, including a 200' overhead electric line, a 700' buried irrigation line, and part of a playground. 5) Preparation of a detailed construction cost estimate, with phasing and sequencing recommendations and appropriate cost breakdowns to allow the project to be constructed in phases, if necessary. 6) Preparation of a concept-level report describing the project to be used in grant applications. 7) Preparation of a final design report. 8) Preparation of a monitoring plan in conjunction with final design report that details attributes to be measured and a monitoring schedule sufficient to measure success of the project relative to stated project goal, objectives, and specific design criteria. 9) Preparation of all required federal, state, and Iocal permits. 10) Preparation of bid documents. 11) Construction oversight of creek enhancement and park amenity elements. 12) Construction oversight of utility relocation. Scope of Work for Stage 1 The Scope of Work for Stage 1 includes the following tasks: Task 1. Analysis Analyses of relevant processes and site characteristics sufficient to inform design. 1. Hydrologic analysis to establish design flows for low flow, bank full flow, and flood flows. 2. HEC-RAS model refinement(a preliminary model exists and will be provided by City of existing conditions and proposed conditions. 3. Assessment of existing bed substrate composition for use in hydraulic modeling and bed substrate design. 4. Assessment of pavilion arch extents using soil probes to determine limits of inset floodplain development adjacent to the pavilion. Task 2. Concept Design Development and Re ort Design development to approximately 30% complete design sufficient to provide the following details in Concept Design Report: 1. Alignment of the proposed stream channel centerline; floodplain estimate of flood inundation at design flows; disturbance limits; riparian areas; and utility relocations; all in relation to adjacent property lines, remaining utilities and other infrastructure, and with sensitivity to preserving existing mature riparian trees to the maximum extent possible. This drawing will be used to negotiate an understanding of intent with adjacent property owners. 2. List and description of all design elements and the specific design criteria that will drive final design of each of these elements. (Reference: Skidmore et al 2011,pp171-174, www.res torationreview.com) 3. Typical concept drawings of the proposed channel planform, profile, and cross-sectional geometry, including intended range of variation within each of these elements. 4. Description of riparian enhancements, including a plan of proposed riparian planting zones planting densities, and species for each zone. 5. Description, conceptual drawings, and approximate locations of all recreational features and other park amenities to be included in the enhancement project, including footbridge, trails and stream access sites. b. Description of the sequence of tasks required to complete the design. Task 3. Final design cost opinion Provide a final design cost opinion for all elements described and listed above, including design, preparation of bid documents, permitting, construction oversight, and final design report and monitoring plan. Task 4. Construction cost estimates Construction cost estimates with phasing and sequencing recommendations. Provide anticipated unit and total cost of labor, materials, and equipment for each task of each phase, to allow the project to be constructed in phases if necessary. Include an estimate of hours and costs necessary to supervise construction. Estimated costs will have a 20% contingency to account for unknowns at this stage of design development. Task 5. Cost of Alternatives Provide approximation of costs to construct alternatives 1, 3, and 4, previously developed for public review, to be used for comparative purposes in submitting a DNRC RRGL grant application. Stage I Deliverables All Deliverables shall be supplied to the City in both digital format and hard copy (3 copies). 1) Draft Plans* provided in 11" x 17" format to the City for review and comment: a. Proposed alignment of stream alignment and utilities, estimated floodplain inundation at flood and design flows, disturbance limits, and riparian areas showing the relationship to adjacent property owners. b. Typical drawings of all design elements, including: • cross-sections of varying geomorphic stream channel and habitat features (riffles, pools, floodplain) • longitudinal profile of stream channel and geomorphic and habitat features • stream bank configuration • riparian planting zones and compositions • limits of disturbance for construction *Plans will be used to negotiate an understanding of intent with adjacent property owners. 2) Draft Concept Design Report submitted to the City for review and comment describing: • design analyses, • project design elements, • design criteria for final design for all design elements, • final design cost proposal, and • construction cost estimate, with phasing and sequencing recommendations, and cost breakdown. 3) Approximate costs to construct alternatives 1, 3, and 4, previously developed for public review, to be used for comparative purposes in submitting a DNRC RRGL grant application 4) Final Concept Plans and Design Report addressing any City comments on Draft Plans and Draft Concept Design Report and including all elements described in the Draft Plans and Draft Concept Design Report. Timeline April 18, 2012 - Submit Deliverables 1 and 2 to City by 2 pm. May 9, 2012 - Submit Deliverables 3 and 4 to City by 2 pm. The following subcontractors will assist in fulfilling the contract: TD&H Engineering, Design 5, Intrinsik, and Nishkian Monks. MONOMER REMEMBER!MIR CITY OF BOZEM N BUSYNESS LICENSE NO. 12-00001145 $ 75.00 GRANTED February 3, 2012 BEGINS Januaryl, 2012 EXPIRf S December 31, 2012 To whom it may concern: THIS LICENSE is granted to CONFLUENCE CONSULTING, INC 1115 N 7TH AVE BOZEMAN MT 59715 406-585-9500 Granted by the City of Bozeman in the County of GaIlati , State of Montana, to carry on the business or occupation of SERVICE - CONSULTING. In said City of Bozeman, the fee of$75.00 having been paid to the Director of Finance in accordance with the provisions of the ordinance of sai City, and the Acts of the Legislative Assembly of the State of Montana. This License is issued subject to all the terms and conditions of the Business License Ordinance of the Bozeman Municipal Code and of Application No. 12-00001145. This license is NOT TRANSFERABLE. WITNESS my hand and seal this February 3, 2012 Signature A4�)Apa�-' LICENSEE Laurae Clark, Treasurer By: Carol A. Nei auer, Business License Clerk DATE ;M -`' C40RQ' CERTIFICATE OF LIABILITY INSURANCE NUOnmYYI 4*.r 0 311 03/1412012 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy,certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsements). PRODUCER Phone, (36C)598-3700 Fax (360)598-3703 CONTACT MICHAEL J.HALL&COMPANY NAME'- MICHAEL J.HALL&COMPANY P"O"E C No HALL&COMPANY (360)598-3703 E-MAIL 19660 10TH AVENUE N.E. ADOgESS: POULSBO WA 98370 INSURER(S) AFFORDING COVERAGE NAIC# INSUIRERA Underwriters at Lloyd's,London INSURED ._ - — Confluence Consulting Inc INSURER 3 The Phoenix Insurance Company 25623 PO Box 1133 INSURER C . Bozeman,MT 59771-1133 INSURER D INSURER E INSURERF - COVERAGES CERTIFICATE NUMBER: 155970 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT VdITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALLTHE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPE OF INSURANCE AOD'L SUER POLICY EFF POLICY EXP LTR INSR MD POLICY NUMBER (MMIDDffyyy' _1ZMQQ1YyYYt__ LIMITS B GENERAL LIABILITY 6802684L762 09/27/11 09/27112 EACH OCCURRENCE $ 1,000,000 DR MI E5(RENTED $ 300,000 C PREMISES(Ea acccrence) CLAIMS-MADE I " OCCUR MED.EXP(Any one person) $ 10,400 �X_ OCR XCU,BFPD PERSONAL&ADV INJURY $ 1,000,000 X Separation of Insureds GENERAL AGGREGATE $ 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMPIOP AGG $ 2,000,000 POLICY X PELT LOC $ B AUTOMOBILE LIA13ILM 68026841-762 09127/11 09/27/12 IE a aaeop SINGLE LIMIT $ 1,000,000 ANY AUTO BODILY INJURY(Per person) $ ALL OWNED AUTOSULED BCDILY INJURY(Per accident) $ AUTOS X HIRED AUTOS X NON-OWN€❑ PROPERTY DAMAGE AUTOS {per accidenq $ UMBRELLA LIAR OCCUR EACH OCCURRENCE $ EXCESS UAB CLAIMS-MADE AGGREGATE $ DED RETENTION S $ WORXERS COMPENSATION WC STATU- OTH AND EMPLOYERS' LIABILITY TORY LIMITS ER 5 ANY PROPRIETORIPARTNERIEXECUTIVE YON E.L.EACH ACCIDENT $ 0FFICEMMEMBER EXCLUDED? NIA (Mandatory in NH) E.L.DISEASE-EA EMPLOYEE 5 It yes,deacdbe under DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT $ A Professional LiabIlily.Claims Made Ferm 11598122231011 09/27/11 09/27112 $7,000,000 Per Claim Retro Date: $2,000,000 Aggregate Mar 27,1997 DESCRIPTION OF OPERATIONS 1 LOCATIONS I VEHICLES(Attach ACORD 101,Additional Remarks Schedule,if more space Is required) CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE City of Bozeman THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN 121 N Rouse Ave ACCORDANCE WITH THE POLICY PROVISIONS. Bozeman,MT 59715-3740 AUTHORIZED REPRESENTATIVE 7 Attention: /! {Ashley L. Hurd ACORD 25(2010105) O 1988-2010 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD