HomeMy WebLinkAbout12- Confluence Inc. Professional Services Agreement for colleciton of water samples PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this day of ; by
and between the CITY OF BOZEMAN, MONTANA, a municipal corporation organized and
existing under the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana 59771,
hereinafter referred to as "City," and, Confluence Inc., 1115 forth 7th. Avenue Bozeman, MT
59715, 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:
L Purpos : The Consultant will collect samples fxom the Vast Gallatin River and
tributary system for multiple water quality parameters at 5 locations using Montana Department of
Environmental Quality approved methods to support stream modeling and analysis and Bozeman
Water Reclamation Facility discharge permit application. 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. Scone 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 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 and produce the specified project deliverables
for a total, fixed cost of$3,800.00. This figure includes all labor, equipment, and materials.
Deliverables and deadlines are specified in Attachment A.
Consultant shall be paid a maximum of$3,800.00 upon completion and approval of the
deliverables.
Payment for additional work under this contract is to be determined.
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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 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 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
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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
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
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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 1964; 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.
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.
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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. Rep orts/Acco untabijj�/Pub lie 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, liaison with Consultant is Dustin Johnson and
Consultant's designated liaison with City is P..i wo _J Cif�n�,cn .
16. ApplicabilLg: This Agreement and any extensions hereof shall be governed and
construed in accordance with the laws of the State of Montana.
IT 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
entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel
to include City Attorney,
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TN WITNESS WHEREOF, the parties hereto have executed this instrument the day and
year first above written.
CITY OF BOZE AN, MONTANA
B By;
ris ukulski, City Manager C N U TA 9T
Pri Name: LoyA
Print Title,
By:
Craig . oolard, Public Works Director
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NON-DISCRIMINATION AFFIRMATION FORM
Confluence Inc., 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 Confluence Inc. employees and to
all subcontracts it enters into in performance of the agreement with the city of Bozeman.
P(rs n Authorized to sign on behalf of Confluence Inc.
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Attachment A
Scope of Work
1) There is to be one sampling event, at each of five locations on the East Gallatin river and
tributary streams. Confluence will contact landowners for access to sampling locations.
2) At each site, five sample bottles are to be collected and preserved for laboratory analysis of
surface water chemistry:
a. One for Total Phosphorus, Nitrate and Nitrite as Nitrogen, and Total Ammonia as
Nitrogen
b. One for Total Nitrogen
c. One for Total Suspended Solids
d. One for Carbonaceous Biological Oxygen Demand
e. One for dissolved parameters. Inorganic Carbon, Organic Carbon, Organic Nitrogen,
Reactive Phosphorus, Organic Phosphorus
One field blank sample, and one field duplicate sample will be prepared in addition to the
five natural samples for a total of seven sample sets submitted to the laboratory for surface
water chemistry,
3) At each site, the following field parameters .are to be recorded:
a. Water temperature
b. Dissolved Oxygen
c. Water pH
d. Water conductivity
e. Stream flow
A YSI 556 and a Marsh McBirney Flowmate 2000 will be the instrumentation used for these
measurements.
4) At each site, administrative and site location data will be recorded on a field data form, to
include:
a, Site ID
b. Site coordinates (resource grade GPS, NIT StatePlane meters,NAD,83) —Note: the
SAP requires reporting these coordinates to 4 decimal places,which is silly if the
coordinate system is State Plane. We aren't going to be locating to the nearest
micrometer J Appears to be a holdover from a spec for lat/long in decimal degrees,
where four decimal places is a reasonable requirement, being+/- several feet.
c. Date/Time
d. Weather
e. Misc relevant observations
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5) At each site, field photographs will be taken to document general site conditions. For each
photo, the following will be recorded:
a. Picture number
b. Date/time
c. Stream name
d. Site ID
e. Direction
6) At each site, Chlorophyll-a sampling will be conducted, per MT DEQ Sample Collection
and Laboratory,4nalysis of Chlorophyll-a Standard Operating Procedure published Dec 21,
2011. Per this protocol:
a. At each site, a DEQ Site Visit Form will be completed.
b. At each site, a DEQ Aquatic Plant Visual Assessment Form will be completed.
c. At each site where the apparent Chlais above 50 mg/m2 , 11-16periphyton samples
will be collected according to a transect scheme that depends on stream width.
i. For each sample, one of three methods (hoop, template, core) will be used to
collect the sample, as determined by stream substrate and algal growth form.
ii. No field duplicate samples will be collected.
iii. A total of 55-80 algal samples will be collected from the five sites, assuming
they all meet the 50 mg/m criterion.
d. At each site where the apparent ChIa is below 50 Mg/M2 at all transects, algal
samples will not be collected. Instead, photo documentation of the low algal
concentration will be performed, with a minimum of one stream substrate photo per
each transect.
This protocol has an optional component of Ash Free Dry Weight quantification. This
component will not be performed.
The 11-16 algae samples collected at each site will be submitted to the laboratory with
instruction that the lab composite the samples based on sampling methodology prior to
analysis. As there are three sampling methodologies that may be used at each site, a
minimum of one and a maximum of three composite samples will be analyzed by the lab for
each site.
7) Confluence will submit the samples collected pursuant to the above to Energy Labs of
Billings MT via overnight shipping (necessary to meet the 48 hour hold time for the
requested Soluble Organic Phosphorus and Ortho Phosporus analyses), The City will be
responsible for contracting with the lab for the analyses and for associated laboratory
charges.
8) Project deliverables will be:
a. Copies of field data forms (DEQ Site Visit Form, Aquatic Plant Visual Assessment
Form, Stream Flow Data Sheet.)
b. Digital photographs
c. Stream Flow Calculation worksheet
d. Laboratory results for the above analyses, as received from the laboratory.
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