HomeMy WebLinkAbout12- Solstice Landscaping Work and Services Agreement RECEIVED JU 6 2012
WORK & SERVICES AGREEMENT
This agreement made this day of 20_LL, upon all the mutual, good and valuable
consideration together with all the terms, conditions, covenants, representations, requirements, recitals,
obligations, promises, and performance herein or attached and incorporated and agreed by the parties:
I- CITY; City of Bozeman, P.O. Box 1230, Bozeman, MT 59771. Telephone: 406-582-3200, and, has authority
to contract for such work and services, and desires to have the CONTRACTOR perform the work and
services specified in Scope of Work, and
2. CONTRACTOR: I S i rill Telephone:
(406) S� -�Z`�U Email: co that represents, warrants, promises and
guarantees CONTRACTOR: (a) is an independent contractor engaged in an independently established
business or profession, and renders work and services in the course of such business or profession as an
independent contractor; (b) is and will be free from control or direction over the performance of its work and
services; (c) is and shall at all times be qualified, skilled and licensed to perform such work and services; (d) is
and shall be in full compliance with all federal, state, and local rules, laws, regulations or ordinances
whatsoever regarding, concerning, or relating to the scope of work and CONTRACTORS's business or
profession; (e) agrees to provide and perform such work and services specified in the scope of work; (f) is in
good standing and authorized to do business in the State of Montana; (g) the undersigned has authority to
execute and enter into this agreement and bind the CONTRACTOR to all the terms, conditions, covenants,
representations, requirements, obligations, promises and performance herein or attached and incorporated.
3. COMMENCEMENT DATE. CONTRACTOR shall commence work no later than , 20_LL,
4. COMPLETION DATE. CONTRACTOR shall have all work and services and the SCOPE OF WORK complete
to the CITY"s full satisfaction no later than 2UI sP_ r,
5. CONSIDERATION.The"contract price'"or"agreed amount" is a total amount of
($ .00). CONTRACTOR agrees that all
work and services specified in the Scope of Work shall be rendered, delivered, installed or performed for the
contract price or agreed amount. Under no circumstances whatsoever shall the amount charged or paid under
this agreement exceed the contract price or agreed amount, except for change of work orders that shall be
considered additional work and shall be in writing, fully negotiated, agreed to and executed by the parties
upon additional fair and reasonable terms, conditions and consideration.
6.SCOPE OF WORK. CONTRACTOR shall provide all materials and perform all labor to complete the project
described as follows or services as described in the SCOPE OF WORK attached as Exhibit"A."
7. PAYMENT SCHEDULE. Payment shall be made as per Exhibit B"Payment Schedule" attached and
incorporated, or if no payment schedule is attached, then the CONTRACTOR agrees to be paid in partial
payments in amounts indicative of the actual percentage of work and services delivered or performed. The
CITY shall make payment within 30 days of receipt of CONTRACTOR'S invoice provided that work and
services have been performed in accordance with this agreement. In the event that COUNTY's funding is
unavailable or limited, then the CITY may reduce the amount of consideration upon consent of the
CONTRACTOR, or without consent terminate this agreement.
8. CONTRACT REPRESENTATIVES. CONTRACTOR names &e4 tkzn as contact
person, who shall receive and examine the documents or informeffin supplied by the COUNTY, act as Project
liaison between the COUNTY and the CONTRACTOR and respond to requests from the COUNTY in writing
promptly to prevent unreasonable delay in the progress of the project. CONTRACTOR will not release
information to any third party without prior written approval from the COUNTY'S contact person. The CITY
names ( ' { -MA , as contact person.
9. TIME IS OF THE ESSENCE. CONTRACTOR shall perform all work and services, obligations, and
requirements without delay TIME BEING OF THE ESSENCE. CONTRACTOR assumes all risks whatsoever
for performance within the time allowed, and shall have no defense whatsoever for failure to complete all work
and services in the SCOPE OF WORK whether due to labor shortage; strike; lockout; lack of available goods;
lack of subcontractors; breakdown, repair or maintenance of machinery, vehicles or equipment; force majeure;
power failure; act of God; or otherwise.
10. ADDITIONAL WORK. No claims for extra, additional, or changes in the work or services will be made by
CONTRACTOR without written agreement with the CITY prier to the performance of such services.
11. PROPRIETARY INFORMATION. Both parties agree to use reasonable care not to disclose proprietary
information to any third party, and will not use information developed during this project for the benefit of
others except as may be authorized in writing. All documents, records, maps, drawings, or other papers
acquired by CONTRACTOR during this project shall remain the property of the CITY.
12. RELEASE OF INFORMATION. CONTRACTOR will not release information to any third party without prior
written approval from the CITY`s contact person. However, CONTRACTOR will be available, with the CITY's
approval,to respond to public and media questions and information inquiries. A log of such inquiries and
responses will be kept and made available to the CITY, if requested.
13. TERMINATION FOR DEFAULT. The performance of Work under this Agreement may be terminated by the
CITY, in accordance with this clause, in whole or in part, in writing, whenever the CITY shall determine that
the CONTRACTOR has failed to perform as agreed or is in default of any part of this agreement. Without
limitation, the CITY has the right to terminate for default, if the CONTRACTOR: fails to deliver supplies,
materials, goods, service, labor or work;fails to perform within the time specified; or if the CONTRACTOR
fails to perform or breaches any representation, promise, warranty, guarantee, provision, term or condition of
this agreement.
14. TERMINATION FOR CONVENIENCE.The CITY may without cause terminate this contract in whole or in part
at any time for its convenience upon reasonable written notice to the CONTRACTOR..
15. CONTRACTOR LIMITATION OF CLAIMS FOR BREACH AND DAMAGES.The CONTRACTOR agrees that
CONTRACTOR' damages, rights and remedies in any case or controversy arising under this agreement are
limited and shall not exceed the reasonable costs of the work performed and materials installed through to the
date of termination less any consideration received CONTRACTOR waives claim to any damages based on
lost profits, consequential, incidental,special, punitive, interest, or delay. Failure of the CONTRACTOR or its
contractors or subcontractors to include similar clauses into its subcontracts and purchase orders shall not
expose the CITY to any liability. The foregoing shall not constitute an exemption from responsibility, and shall
not exempt the CITY or anyone"from 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 MCA 28-2-702.
16. CONTRACTOR ADDITIONAL OBLIGATIONS. The CONTRACTOR'S obligations, duties and responsibilities
include at all times the following: (a) provide all labor, materials, equipment,supplies and incidentals
necessary to perform and complete the scope of work; (b) prepare and present such information as may be
pertinent and necessary, in order for the CITY to pass critical judgment on the quality of the scope of work; (c)
perform work and services in accordance with generally accepted commercial or accepted industry standards
regarding similar type projects, work or services; (d) all work and services must be performed and completed
in a manner that is satisfactory to the CITY; (e) Perform all professional services in connection with the scope
of work at a standard of similarly situated professionals in the United States, and to the full satisfaction of the
CITY; (f)maintain appropriate safety standards and keep all areas of work and adjacent areas free from
foreseeable risks of harm and dangers; (g) allow the CITY upon reasonable notice and at reasonable times
the right of review, inspect and examine the CONTRACTOR'S place of work and records pertaining to this
agreement; (h) maintain compliance with all not for profit rules, laws and regulations.
17. LAWS AND REGULATIONS. CONTRACTOR has an affirmative duty to take notice of, observe, and strictly
comply with all existing laws, rules and regulations and any all laws, rules and regulations that may be
adopted after the date of this agreement.Whether or not the same are expressly stated in the agreement, the
CONTRACTOR shall strictly comply with all applicable state, federal and local laws and regulations, including,
but not limited to,:
(a) Montana Labor Preference. CONTRACTOR shall give preference to the employment of bona fide Montana
residents in the performance of the work. Section 18-2-403, MCA.
(b) Equal Opportunity. Pursuant to Sections 49-2-303 and 49-3-207, MCA, and City of Bozeman Resolution 4250, no
part of this contract may be performed in a manner which discriminates against any person on the basis of race,
color, religion, creed, sex, age, marital status, national origin, or actual or perceived sexual orientation, gender
identity, or physical or mental disability, or political ideas by person performing the contract. Any hiring must be on
the basis of merit and qualifications directly related to the requirements of the particular position being filled.
(c) Prevailing Waqe Rates_ CONTRACTOR must pay the standard prevailing wage rates, including fringe benefits for
health and welfare and pension contributions and travel allowance provisions in effect and applicable to Gallatin
COUNTY, Montana.Any questions concerning prevailing wages should be directed to the Montana Department of
Labor and Industry, Labor Standards Bureau, Capitol Station, Helena, Montana, 59620, Phone: 406-444-5600.
CONTRACTOR shall post in a prominent and accessible site on the project or work area, not later than the first
day of work and continuing for the entire duration of the project, a legible statement of all wages and fringe
benefits to be paid to the employees employed on the site or work area. Section 18-2-406, MCA.The current
standard prevailing wage rates published by the Montana Department of Labor and Industry for each relevant job
classification necessary to complete the scope of work are incorporated by reference into this agreement.
(d) Safety. CONTRACTOR on behalf of itself and the CITY assumes sole responsibility for initiating, maintaining and
supervising all health and safety precautions and programs for all employees, subcontractors, agents, and
consultants in connection with the performance of this Agreement. CONTRACTOR shall ensure that its
employees, consultants, subcontractors, agents are adequately and appropriately trained pursuant to the Montana
Safety Culture Act, Title 39, Chapter 71, Part 15 of the Montana Code Annotated. CONTRACTOR shall also
comply with the safety rules, codes, and provisions for occupational safety under Title 50, Chapter 71 of the
Montana Code Annotated_
(e) Registration and Withholding. CONTRACTOR shall register with the Montana Department of Labor and industry in
accordance with Title 39, Chapter 9, Montana Code Annotated. CONTRACTOR acknowledges the requirements
of Title 15, Chapter 50, Montana Code Annotated and it, not the CITY,will withhold and forward certain portions of
gross contract receipts where necessary.
(f) Professions and Occupations. CONTRACTOR shall ensure all work and services undertaken for the CITY shall
meet the requirements of Title 37, Montana Code Annotated.Work and services undertaken by licensed
professionals, such as surveyors, architects and engineers, shall be completed, signed, and stamped by a such
professionals licensed_
(g) New taws and Regulations. If during the term of-this Agreement new laws or regulations become applicable,
CONTRACTOR shall also comply with them without notice from the CITY.
18. LIEN. Provided that the CITY has first made all payments as required herein, CONTRACTOR shall pay all
valid bills and charges for material and labor incurred by it and arising out of the SCOPE OF WORK and will
hold the CITY free and harmless against all liens and claims of liens or services, labor and materials filed
against the property upon which the scope of work is commenced. As evidence of payment of service
CONTRACTORs, material men and subcontractors, CONTRACTOR shall file lien waivers_ CONTRACTOR
will also file the same for its services_ CONTRACTOR shall provide the necessary information on to identify all
CONTRACTORS of services, material men and subcontractors.
19. WAIVER AND INDEMNIFICATION. CONTRACTOR 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 MCA 28-2-702.
(a) CONTRACTOR will indemnify, hold harmless, and defend the CiTY and its agents, principals, and employees from
and against any and all liability(including liability where activity is inherently or intrinsically dangerous), damages,
losses or costs, , including but not limited to reasonable attorney's fees (including fees of the CITY Attorney)
arising out of or resulting from CONTRACTOR'S or third party's negligence, recklessness, or intentional
misconduct, or from CONTRACTOR'S or a third party's failure to comply with the requirements of this agreement
or with all federal, state and local law applicable to the performance of this agreement but only to the extent that
the liability, damages, losses, or costs are caused by the negligence, recklessness, or intentional misconduct of
the CONTRACTOR or a third party or the CONTRACTOR'officers, employees or agents. In the event of an
action filed against the CITY resulting from CONTRACTOR'S performance under this agreement, the CITY may
elect to represent itself and incur all costs and expenses of suit.
(b)These obligations shall survive termination of this agreement,
20. INSURANCE. The CONTRACTOR shall carry comprehensive general liability insurance in the amount no less
than $1,500,000.00 for each occurrence;Automobile liability in the amount of$1,500,000.00 combined single
limit; Professional Liability or Errors and Omissions coverage in the amount of$1,500,000.00. All insurance
policies shall be primary and noncontributory and shall name The City of Bozeman, CITY, as additional insured.
(a) Such certificate shall require no less than 15 days notice of cancellation to COUNTY. CONTRACTOR shall put
the CITY on immediate notice of any changes or cancellatiion in covera g e_
(b) CONTRACTOR shall require all consultants, and subcontractors to meet the same insurance coverage.
21. INDEPENDENT CONTRACTOR. The CONTRACTOR, and its consultants, contractors, and subcontractors,
shall at all times be considered independent contractors_ Notwithstanding its obligation to fulfill the scope of
work, CONTRACTOR and its consultants and subcontractors have been and will continue to be free from
control or discretion over their performance under this agreement and in fact. The CITY will not be responsible
for withholding any state or federal taxes or social security, nor will the CITY extend any of the benefits to the
CONTRACTOR that it extends to its employees. The CONTRACTOR is required to maintain necessary
records and withholding.
22. WORKERS COMPENSATION.As an independent contractor, CONTRACTOR must provide Workers
Compensation for all employees in the amount required by Montana law.
23. ATTORNEY'S FEES. If it is necessary for either party to bring an action to enforce the terms, covenants, or
conditions of this Agreement, the prevailing party shall be entitled to reasonable attorney fees to be set by the
appropriate court, including fees of the City of Bozeman, CITY, Attorney.
24. CITY's DAMAGES. The CITY's damages in the event of the CONTRACTOR's default, breach or failure to
perform shall include without limitation. damages for the cost of materials and labor to complete the work and
services, and/or fix, repair, remedy, reconstruct, rebuild, remove or replace the materials, work and services;
the difference in contract price between this agreement and any other agreements that the CITY might enter
to complete the work and services; consequential, incidental, compensatory, administrative costs, punitive
and foreseeable damages; and such other and further damages, claims, or remedies that might be allowed at
law.
25. NO PRESUMPTION. Payment by the CITY to the CONTRACTOR for goods, work, services, materials, claims
or performance shall create no presumption that the CONTRACTOR's goods, work, service, materials, claims
or performance is satisfactory or meets the terms, conditions, representations, promises, warranty or
CONTRACTOR's obligations whatsoever.
26. HOLD BACK.The CITY may hold back payment or refuse payment whenever in the CITY's sole discretion it
is required to assure, obtain or compel CONTRACTOR's compliance or performance with this agreement.
27. PAYMENT AND PERFORMANCE BONDS. If the CITY, in its sole discretion, requires the CONTRACTOR
shall post payment and performance bonds in an amount no less than the sum of the contract price. Bond
documents must be delivered to the CITY within 3 days of the contract award and prior to the commencement
of work.
28_ VENUE. An action to enforce this Agreement shall be brought in the District Court of the Eighteenth Judicial
District, Gallatin County Montana.
29. NOTICE. All notices and certifications made pursuant to this agreement shall be delivered to the addresses
above by certified mail or personal delivery in care of the parties representative named at%8 of this
Agreement. A party shall give the other prompt notice of any change in address_
30. INTERPRETATION I ENTIRE AGREEMENT.This Agreement shall be governed and interpreted according to the
laws of the State of Montana. Section headings are for convenience only and are not intended to define or limit
any provisions of this Agreement The provisions of this Agreement are independent and severable, and the
invalidity, partial invalidity, or unenforceability of any one provision or portion thereof shall not affect the validity or
enforceability of any other provision. Both parties having been given an opportunity to have this Agreement
reviewed by others, the Rule of Construction providing that the Agreement shall be construed against the drafter
will not be used in the interpretation of this Agreement. Words shall be given plain meaning and effect, the parties
acknowledge and agree that there is no ambiguity_ No extrinsic evidence. This document represents the entire
and integrated agreement between the CITY and CONTRACTOR and supersedes all prior negotiations,
agreements or representations, either written or oral. This agreement may be amended only by written instrument
signed by both the CITY and the CONTRACTOR.
31. NON WAIVER. Delay, waiver or failure to enforce or assert any claim, defense or provision of this agreement
shell not operate as a waiver of any of the CITY's rights and remedies at law or equity that are expressly
reserved without limitation.
32. NON-ASSIGNMENT- No assignment without the other parties written consent which shall not be
unreasonably withheld.
33. EXECUTION OF AGREEMENT.The Bozeman CITY Clerk will Keep the original agreement. An exact
unaltered copy of the original agreement has the same force and effect as the original.
34. CONDITION PRECEDENT DELIVERY OF DOCUMENTS; CERTIFICATE OF INSURANCE f WORKERS
COMPENSATION 1 INDEPENDENT CONTRACTOR STATUS_As a condition precedent to this agreement
binding the parties,on or before execution of this agreement CONTRACTOR shall deliver to the CITY original
or certified copies of the Certificate of Insurance, Certificate of Workers Compensation Coverage,
Independent Contractors License, and any other documents required- CONTRACTOR shall cooperate in
good faith and shall deliver, upon request, such other and further documents as may be reasonably required
to determine CONTRACTOR's strict compliance with the required insurance,workers compensation coverage
and independent CONTRACTOR status and the terms and conditions of this agreement.
35. NO OFFER EXPRESS OR IMPLIED.Transmittal, delivery or publication of this AGREEMENT FOR WORK
AND SERVICES shall NOT BE CONSTRUED AS AN OFFER EXPRESS OR IMPLIED. The CITY shall not be
bound to the terms and conditions, unless and until this agreement has been fully executed, approved in
writing by the CITY Attorney, adopted and by Resolution of the CITY Commission and returned to the
contractor.
36. NO DISTRIBUTION,COPYING OR PUBLICATION.This form of agreement is the property of the CITY of
Bozeman and shall not be copied, distributed, published, altered, modified, amended or used in any manner
without the express written authority of the CITY Attorney-
37. IN WITNESS WHEREOF the parties have signed this agreement-
Date: Date: '
RESPONSIBLE CITY OFFICIAL CONTRACTOR
(sign above this line) (sign above this line) /
(print or type:name,title&department above this line) (print or type:name,title&department above this line)
NOTARY rd NOTARY
Signed and acknowledged before me on-3"day of Signed and acknowledged before me on day of
20[2- by Ck4is kkko-EZ _ 20 by
(n a of person signing document) who did (name of person signing document) who did
acknowledge full lawful consent, authority and acknowledge full lawful consent, authority and
capacity to en r the contra D capacity to enter the contract.
NCK R T
N t o ��th �8 Notary Public of the State of dame:
R n at: Residing at:
*� SEAL; M �np My Commission expires.
N... aY y ommtsst n x ires
A "' December 04, 2012 AFFIX STAMP
(tsolstice
landscaping,,c
523 W.Babcock 5t. Bozeman,MT 59715
406.587.2250
• City Hall - 75.00 per time
• 214 E. Lamme - 20.00 per time
• Black and Mendenhall - 20.00 per time
• Rouse and Babcock - 20.00 per time
• City Library - 250.00 (to include all irrigated area from Main St. south to edge
of park area at Pete's Hill parking lot)
City Library Native Area 45.00 per time - (to include non-irrigated areas
from Main St. south to edge of park area at Pete's Hill parking lot)
• Depot Pocket Park - 60.00 per time
• Aspen Street Trail - $0.00 per time
TT.CU>C.4 W[:..0 JUL U U LU!P,
NON-DISCRIMINATION AFFIRMATION FORM
S �` i;
b7 s�l a LLjg6CQ_0 i Mj[mine of entity submitting]hereby affirms it will not discriminate
on the basis of race, color,religion,creed, sex,age,marital status,national origin,or because
of actual or perceived sexual orientation, gender identity or disability in the performance of
work performed for the city of Bozeman,if a contract is awarded to it,and also recognizes the
eventual contract,if awarded,will contain a provision prohibiting discrimination as described
above and that this prohibition shall apply to the hiring and treatment of the
2 [name of entity submitting] employees and to all subcontracts it
enters into in performarice of the agreement with the city of Bozeman.
Signature of Bidder:
Person authorized to sign on behalf of the bidder