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HomeMy WebLinkAbout12- Mandeville Properties Land Use Planning Professional Services Contract with CTA Architects Co PROFESSIONAL SERVICES CONTRACT FOR MANDEVILLE PROPERTIES LAND USE PLANNING This Contract is entered into this I day of , 201, by and between the City of Bozeman, M herein referre to as the "CITY" and CTA ARCHITECTS ENGINEERS, whose address is 411 East Main Street, Bozeman, Montana 59715, herein referred to as the "CONTRACTOR," Witnesseth: WHEREAS, the Montana Department of Commerce, herein referred to as "the DEPARTMENT," has awarded the CITY grant funds under the Montana Community Development Block Grant (CDBG) Program for purposes of land use planning properties which include an 85.35-acre tract owned by the CITY and a contiguous 190-acre tract owned by the State of Montana and managed by the Department of Natural Resources and Conservation herein referred to as the "DNRC". The Mandeville properties are located within the Bozeman city limits and currently zoned in a combination of M-1 and M-2 (Manufacturing). Both parcels are located north of Interstate 90 between the North 7th Street and North 19th Street interchanges; and -.. WHEREAS, on September 2, 2011 the CITY and the DNRC executed a Memorandum of Agreement, agreeing to equally divide the CDBG planning grant match requirements for the Mandeville Properties Land Use Plan. WHEREAS, the CITY desires to engage the CONTRACTOR to render certain services related to the administration of the above described CDBG land planning project; and WHEREAS, the CITY has complied with state and federal procurement requirements regarding the selection of the CONTRACTORs; and WHEREAS, the CITY desires to enter into a Contract with the CONTRACTOR as hereinafter provided to assure the effective management of the project; NOW, THEREFORE, the parties hereto do mutually agree as follows: 1. EMPLOYMENT OF CONTRACTOR. The CITY agrees to engage the CONTRACTOR, and the CONTRACTOR agrees to provide the following services in order to provide for the administration and management of the CDBG project for the CITY as approved by the DEPARTMENT. 2. INDEPENDENT CONTRACTOR. The parties agree that the CONTRACTOR is an independent contractor for purposes of this Contract and is not to be considered an employee of the CITY for any purpose. The CONTRACTOR is not subject to the terms and provisions of the CITY's personnel policies,handbook and may not be considered a PROFESSIONAL SERVICES CONTRACT FOR MANDEVILL-EPROPERTIES LAND USE PLANNING Page I of 8 y . CITY employee for workers' compensation or any other purpose. The CONTRACTOR is not authorized to represent the CITY or otherwise bind the CITY in any dealings between the CONTRACTOR and any third parties. The CONTRACTOR 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. The CONTRACTOR shall maintain workers' compensation coverage for all members and employees of the CONTRACTOR's business, except for those members who are exempted by law. The CONTRACTOR shall furnish the CITY with copies showing one of the following: a. A binder for workers' compensation coverage by an insurer licensed and authorized to provide workers' compensation insurance in the State of Montana; or b. Proof of exemption from workers' compensation granted by law for independent contractors. 5. CONTRACTOR'S REPRESENTATIONS. To induce CITY to enter into this Contract, CONTRACTOR makes the following representations: a. The CONTRACTOR has familiarized itself with the nature and extent of this Contract, the Scope of Work attached hereto, 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. The CONTRACTOR represents and warrants to CITY that it has the experience and ability to perform the services required by this Contract; 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 Contract and grant the rights granted in it; and that its performance of this Contract 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. LIAISON. The CITY's designated liaison with the CONTRACTOR is the Director of Economic Development or their designee. The CONTRACTOR's designated liaison with the CITY is Wayne Freeman of CTA ARCHITECTS ENGINEERS. 7. EFFECTIVE DATE AND TIME OF PERFORMANCE. This Contract takes effect on the date that the Bozeman City Commission approves the execution of the Contract. The services to be performed by the CONTRACTOR will be completed no later than December 31,2012. S. SCOPE OF SERVICES. The CONTRACTOR will perform the following services: PROFESSIONAL SERVICES CONTRACT FOR MANDEVILLE PROPERTIES LAND USE PLANNING Page 2 of 8 SEE ATTACHMENT A. It is understood and agreed by the parties that the services of the CONTRACTOR do not include any of the following the disbursement or accounting of funds distributed by the CITY's financial officer, legal advice, fiscal audits or assistance with activities not related to the CDBG project. 9. COMPENSATION. Neither the cost of architectural, engineering or grant administration services plus a percentage of that cost method nor the percentage of construction cost method will serve as the basis for compensating the architect, engineer or grant administrator for its services provided under this Contract. For the satisfactory completion of the services to be provided under this Contract, the CITY will pay the CONTRACTOR a sum not to exceed $50,000 as in the manner set forth in ATTACHMENT A. which by this reference is made a part of this Contract. Each specific service the CONTRACTOR will provide under this Contract, and the maximum amount that the CITY will pay the CONTRACTOR for each of these services, is set forth in ATTACHMENT A. The amount to be paid will be calculated according to the hourly billing rates for the various personnel as described in ATTACHMENT A. The CONTRACTOR may submit monthly requests for payment, based on actual work performed, which must be accompanied by an itemized invoice describing the services furnished, the number of hours worked to accomplish each item, the amount being billed for each item, a description of any other eligible expenses incurred during the billing period, and the total amount being billed. 10. CONFLICT OF INTEREST. The CONTRACTOR covenants that it presently has no interest and will not acquire any interest, direct or indirect, in the CDBG project which would conflict in any manner or degree with the performance of its services hereunder. The CONTRACTOR further covenants that, in performing this Contract, it will employ no person who has any such interest. 11. MODIFICATION AND ASSIGNABILITY OF CONTRACT. This Contract 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 the written Contract, are valid or binding. This Contract may not be enlarged, modified or altered except upon written agreement signed by both parties hereto. The CONTRACTOR may not subcontract or assign its rights, including the right to compensation, or duties arising hereunder without the prior written consent of the CITY. Any sub-contractor or assignee will be bound by all of the terms and conditions of this Contract. 12. CONDITIONAL AGREEMENT. It is expressly understood by the parties hereto that this Contract is dependent and conditioned upon the receipt by the CITY of Community Development Block Grant funds from the DEPARTMENT and that in the event that said funds are not provided, the CITY incurs no responsibilities or liabilities under this Contract. 13, TERMINATION OF CONTRACT. This Contract may be terminated as follows: PROFESSIONAL SERVICES CONTRACT FOR MANDEVILLE PROPERTIES LAND USE PLANNING Page 3 of 8 a_ Termination due to loss of funding. This Contract will terminate, in whole or in part, at the discretion of the CITY in the event that the DEPARTMENT reduces or terminates payments under the CDBG Program so as to prevent the CITY from paying the CONTRACTOR with CDBG funds. In this event, the CITY will give the CONTRACTOR advance written notice which sets forth the effective date of the termination and explain that the termination is due to a loss or reduction of the CDBG Program grant. b. Termination for cause. (i) If, at any time before the date of completion, one of the parties determines that the other party has failed to comply with any of the terms and conditions of this Contract, the aggrieved party may give notice, in writing, to the defaulting party of any deficiencies claimed. The notice will be sufficient for all purposes if it describes the default in general terms. If the defaulting party fails to cure and correct all defaults claimed within a reasonable period to be specified in the notice, the aggrieved may, with no further notice, declare this Contract to be terminated in whole or in part. (ii) If the CONTRACTOR is the defaulting party, it will thereafter be entitled to receive payment for those services satisfactorily performed to the date of termination less the amount of reasonable damages suffered by the CITY by reason of the CONTRACTOR's failure to comply with the Contract's terms and conditions. (iii) If the CITY is the defaulting party it will pay the CONTRACTOR for those services satisfactorily performed to the date of termination plus the amount of reasonable damages suffered by the CONTRACTOR by reason of the CITY's failure to comply with the Contract's terms and conditions. (iv) Notwithstanding the above, the defaulting party is not relieved of liability to the aggrieved party for damages sustained by the aggrieved party by virtue of any breach of this Contract. (v) If the CONTRACTOR is the defaulting party, the CITY may withhold any payments to the CONTRACTOR for purposes of setoff until the exact amount of damages due the CITY from the CONTRACTOR is determined. 14. DOCUMENTS INCORPORATED BY REFERENCE. The CITY's application to the DEPARTMENT for CDBG funding, dated September 19, 2011 and all applicable federal and state statutes and regulations are incorporated into this Contract by this reference and are binding upon the CONTRACTOR. 15, CIVIL RIGHTS ACT OF 1964. The CONTRACTOR will abide by the provisions of the Civil Rights Act of 1964 which states that under Title VII, no person may, on the grounds of race, color, or national origin,be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance. PROFESSIONAL SERVICES CONTRACT FOR MANDEVILL9 PROPERTIES LAND USE PLANNING Page 4 of 8 16. SECTION 109 OF THE HOUSING AND COMMUNITY DEVELOPMENT ACT OF 1974. The CONTRACTOR will comply with the following provision: No person in the United States may on the grounds of race, color, national origin, or sex be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity funded in whole or in part with the funds made available under this title. Any prohibition against discrimination on the basis of age under the Age Discrimination Act of 1975 or with respect to an otherwise qualified handicapped individual as provided in Section 504 of the Rehabilitation Act of 1973 will also apply to any such program or activity. 17. SECTION 3 OF THE HOUSING AND URBAN DEVELOPMENT ACT OF 1968. The CONTRACTOR will ensure that to the greatest extent feasible, opportunities for training and employment arising in connection with this CDBG-assisted project will be extended to lower income project area residents. Further, the CONTRACTOR will, to the greatest extent feasible, utilize business concerns located in or substantially owned by residents of the project area, in the award of contracts and purchase of services and supplies. 18. MINORITY BUSINESS ENTERPRISE. Consistent with the provisions of Executive Order 11246, the CONTRACTOR will take affirmative steps to assure that minority businesses are used when possible as sources of supplies, equipment, construction and services. Additionally,the CONTRACTOR will document all affirmative steps taken to solicit minority businesses and will forward this documentation along with the names of the minority sub-contractors and suppliers to the local government CDBG recipient upon request. 19. ANTI-DISCRIMINATION. The CONTRACTOR agrees not to discriminate in the fulfillment of this Contract on the basis of race, color, religion, creed, sex, age, marital status, national origin, or actual or perceived sexual orientation, gender identity or disability. The CONTRACTOR agrees this requirement shall apply to the hiring and treatment of the CONTRACTOR's employees and to all subcontracts. 20. OWNERSHIP AND PUBLICATION OF MATERIALS. All reports, information, data, and other materials prepared by the CONTRACTOR pursuant to this Contract are the property of the CITY and the DEPARTMENT which have the nonexclusive and unrestricted authority to release, publish or otherwise use, in whole or part, information relating thereto. Any reuse without written verification or adaptation by the CONTRACTOR for the specific purpose intended will be at the Owner's sole risk and without liability or legal exposure to the CONTRACTOR. No material produced in whole or in part under this Contract may be copyrighted or patented in the United States or in any other country without the prior written approval of the CITY and the DEPARTMENT. 21. REPORTS AND INFORMATION. The CONTRACTOR will maintain accounts and records, including personnel, property and financial records, adequate to identify and account for all costs pertaining to this Contract and such other records as may be deemed necessary by the CITY to assure proper accounting for all project funds, both federal and non-federal shares. These records will be made available.for audit purposes to the CITY PROFESSIONAL SERVICES CONTRACT FOR MANDEVILLE PROPERTIES LAND USE PLANNING Page 5 of 8 or its authorized representative, and will be retained for three years after receipt of final payment for the services rendered under this Contract unless permission to destroy them is granted by the CITY. 21. ACCESS TO RECORDS. It is expressly understood that the CONTRACTOR's records relating to this Contract will be available during normal business hours for inspection by the CITY, the DEPARTMENT, the U.S. Department of Housing and Urban Development, the U.S. Comptroller General, and, when required by law, the Montana Legislative Auditor and Legislative Fiscal Analyst. 22. PLACE OF PERFORMANCE, CONSTRUCTION, AND VENUE. The parties understand and agree that performance of this Contract is in the City of Bozeman, Montana and that in the event of litigation concerning it, venue is the Eighteenth Judicial District in and for the County of Gallatin, State of Montana. This Contract will be construed under and governed by the laws of the State of Montana. 23, INDEMNIFICATION/iNNSURANCE. The CONTRACTOR waives any and all claims and recourse against the CITY, including the right of contribution for loss and damage to persons or property arising from, growing out of, or in any way connected with or incidental to the CONTRACTOR's performance of this Contract except for liability arising out of concurrent or sole negligence of the CITY or its officers, agents or employees. For other than professional services rendered, to the fullest extent permitted by law, CONTRACTOR agrees to defend, indemnify, and hold the CITY harmless 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, property damage, occasioned by, growing out of, or in any way arising or resulting from any intentional or negligent act on the part of CONTRACTOR or CONTRACTOR's agents or employees. 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 willful misconduct of the CONTRACTOR or CONTRACTOR's agents or employees. CONTRACTOR 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 Contract 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 the CITY be required to bring an action against the CONTRACTOR to assert its right to defense or indemnification under this Contract or under the CONTRACTOR's applicable insurance policies required below the CITY shall be entitled to recover PROFESSIONAL SERVICES CONTRACT FOR MANDEVILLE PROPERTIES LAND USE PLANNING Page 6 of 8 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. The above obligations shall survive termination of this Contract. In addition to and independent from the above, CONTRACTOR 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: a. Workers' Compensation—statutory; b. Employers' Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; C. Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; d. Automobile Liability - $1,000,000 property damagelbodily injury; $2,000,000 annual aggregate; and e. Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate The CITY, 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 CONTRACTOR commencing work. 24. LEGAL FEES. In the event that 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 the City Attorney. 25. ELIGIBILITY. The CONTRACTOR certifies that the CONTRACTOR's firm and the firm's principals are not debarred, suspended, voluntarily excluded, or otherwise ineligible for participation in federally assisted contracts under Executive Order 12549, "Debarment and Suspension". (24 CFR 24.505) 26. NON-WAIVER. A waiver by either Party to this Contract, any default or breach by the other Party of any terms or conditions of this Contract 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. PROFESSIONAL SERVICES CONTRACT FOR MANDEVILLE PROPERTIES LAND USE PLANNING Page 7 of 8 IN WITNESS WHEREOF, the parties hereto have executed this Contract on the day of , CTA ARCH ECTS 1,fNEERS CI'T'Y OF BOZEMAN, MONTANA BY: BY: WAYNE E N CHRIS A. KUKULSKI CTA ARCHITEC S INEERS BOZEMAN CITY MANAGER DATE: %OIL DATE: / 9 /al z APPROVED AS TO FORM: BY: (/�'/ N GREG S L I AN BOZEMAN CITY ATTORNEY DATE: LI Ll�' PROFESSIONAL SERVICES CONTRACT FOR MANDEVILLE PROPERTIES LAND USE PLANNING Page 8 of 8