HomeMy WebLinkAboutStandard Form of Agreement between City of Bozeman and Comma-Q City Hall Masonry Repair so
CITY OF BOZEMAN
A MUNICIPAL CORPORATION
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Phone:.=4 m5u2-s.n ° n".40mro'zsm
STANDARD FORM OF AGREEMENT BETWEEN
OWNER AND ARCHITECT/ENGINEER
This AGREEMENT io made ouof: The A;t' day of August,zo1a
BETWEEN the City of Bozeman,acting through its Superintendent of Facility Services, hereinafter identified as
the"OWNER":
Facilities Department, City vfBozeman
P.O.Box ox0,uo East Olive Street
Bozeman,&fTop,71-/2nu
And the ARCH|TECl7ENGKNEER: coMmA'Q ARCHITECTURE,INC.
1oo NORTH ROUSE AVENUE
aOzE0AN,/NT 59715
p(406)585-1112;n(406)585-5518
For the following Project: CITY HALL MASONRY REPAIR
CITY HALL, 1o/NROUSE AvsmUE
I PART 1i
11 COMPENSATION
1.1.1 The compensation in this Agreement is o Lump-Sum. Fixed Fee amount for all eem|ces,
pmopoosibxmoa, and duties m the Arch|teoxeneineerooenumerated in Section 1.2 as pwquinyu to
complete the Scope of Work for the City Hall Masonry Repair Project(the"Project") as shown on
the bid specifications provided at Exhibit A. |f additional services are desired or become necessary,
the Owner and Architect will execute an amendment to this Agreement. If mo,e are services
required beyond the scope of this Agmement, such services shall he negotiated with the Owner,
Services beyond the scope of this Agreement must be authorized by the Owner prior to
performance of such services or they shall be at the Architect/Engineer's expense.
112 The Owner will make progress payments to the Arch itect/Engineer on account of services rendered.
Should the Project proceed through ovnstrucUvn, any remaining amounts due after Substantial
Completion will be paid to the Architect/Engineer upon completion of particular oem|oe items
delineated in this Agreement or upon Final Acceptance of the Project,whichever is later.
1.1.3 Each request for payment submitted by the Arch|»eouEnQinee,shall be submitted to the Owner on
not more than o monthly basis. The Owner has thirty(3m calendar days from the date o,receipt o,
process payment to the Arch it*owsnn|neerofall undisputed amounts.
11A If the Owner determines that any representations on pay requests submitted by the
Arch mmt/EnQ|nee,are wholly or partially inaccurate, the Owner may withhold payment rxamounts
in dispute until the inaccuracy and its cause have been corrected to the Owner's satisfaction.
1,1,5 The Owner may make deductions or withhold payment of amounts|ndispute,
1 1,6 By submission of the final pay request the Architect/Engineer certifies to the Owner that all bills for
materials, muppmes, um:u*a and for all other items o, services furnished or caused to be furnished
and used in the execution of this Agreement have been fully paid to date and that there are no
unpaid claims or demands ofState or Federal Agencies, umsu|tants, emp|oyoee, or any others
resulting from nr arising out of any work done under this Agreement.
1.1.7 Reimbursable Expenses.
117.1 Reimbursable expenses for services as part of this Agreement are not included in the Total
Sum. Reimbursable expenses shall not exceed$6UOQO
1 1 7.o For Reimbursable Expenses the compensation nxaU be the oxvenoov incurred by the
Architect and the Architect's consultants plus fifteen percent (15Y4) of the expenses
incurred.
1 1r3 Reimbursable Expenses are defined as:
1,1 731 transportation in connection with the Project, out-of-town travel and
subsistence,and electronic communications;
1.1.732 document reproductions for bidding pu/pnaao, p|ots, standard form documents,
te|epxoneme|l honw. postage,handling and delivery
1.1.7.3.3 oxpenwo of professional liability insurance dedicated exclusively to this Project
or the expense of additional insurance oow:nagr or Um|m requested by the
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Owner in of that normally carried by the Arch itervEnVin eer and the
Architect/Engineer's consultants;and,
117.3.4 other similar direct Project-related expenditures.
1.1.8 Records of expenses for all services pedvnneu. changes in oem|*a, reimbursable expenses, and
other expenses shall be available to the Owner or the Owner's authorized representative at mutually
convenient times.
1 i.9 Other expenses incurred by the Arch/oaoVEngineer may becompensated if authorized in advance
by the Owner, All Other expenses shall be negotiated with and approved by the Owner prior to the
Architect/Engineer incurring such expenses,
1.e ENUMERATION OF AGREEMENT
1.2.1 This Agreement represents the onum and integrated agreement between the Owner and the
ArchitevVEnginoer and supersedes all prior mego#adnnu, representations or myn*emwntv, either
written or oral. This Agreement may beamended only by written instrument signed by both Owner
andAohueot/Engineor. This Agreement in for the following Scope ofWork:
Provide architectural services m address limited masonry repairs at existing exterior
building elements. Building elements to be addressed under this contract include.
• replacement of masonry sills and face brick immediately below sills
• removal and repair of potentially damaged insulation and sheathing inbrick
cavity behind areas ofdamage
• removal of the damaged masonry bench at the exterior of the West Entry
The services provided for the Project shall include:
• Act ua the City's representative for the Project wa indicated inthe Construction Agreement
between the City and the selected contractor,
• Prepare a Project Manual to include all required and necessary construction documents;
• Review submitted bids for construction of the Project and provide recommendations to the
City for award ofbid;
• Monitor th o[the Project and the work of the selected contractor and
subcontractors for conformance with the Project Manual;
• Communicate with the City regarding progress vf the Project and any issues related mthe
Project including compliance by the selected contractor and subcontractors of all Project
requirements included in the Construction Agreement between the City and the contractor
for oonmrmctlonof the Project;
• Review the contractor's submitted construction schedule and provide comments to the City;
and
• Review applications for payment,including final payment, submitted uy the selected
contractor in conformance with Exhibit C of the Construction Agreement and verify that the
work has been completed and forward all approved requests for payment to the City for
payment to the contractor;
122 By executing this Agreement the Arch itect/Eng ineer represents,acknowledges,and agrees that the
Agreement incorporates all of the requirements nf the documents and items enumerated above and
agrees tpbe bound uy the same.
1.2.3 Notwithstandling the foregoing,the Owner recognizes that the Arch itect/Engineer is not
responsible for the Contractor's performance and does not guarantee the Contractor's work. The
Contractor remains solely and exclusively responsible for complying with the Contract Documents. The
Arch itect/En gi neer is not responsible for the Contractor's means and/or methods,
1.3 PROJECT TEAM
1.3.1 The Owner's Project Manager is James Goehrung (include contact info) and is authorized to act on
the Owner's behalf. The Owner nrthe Owner's Project Manager shall render decisions in atime|y
manner in order to avoid "ona*vonwh(e delay in the orderly and sequential progress of the
Arcmteot/Enomeer'unemiuoo
1.3.2 The Architect)Engineer shall communicate and coordinate with the Owner's Project Manager inall
instances regarding the Project, |n|ha| information, Project Manual, Construction Schedule,
0omponomdno Schedule po400t budget, transfers of information, noxouu||ng merhnso, and any
other Owner requests,
13.3 The Arch iteot/Engmeer aho|| communicate with other City officials and employee through the
Owner's Project Manager unless given permission by the Project Manager to communicate and
coordinate directly with such other officials and employees; however, only the Project Manager is
authorized to act on behalf of the Owner and no other employee or official of Owner may bind the
Owner. The Owner obu|| |ikmmio* ensure that no offiu|u| or employee other than the Project
Manager shall communicate with or give directions to the Arch itect/Eng in eer.
1.3.4 The xmmteouEnoineoru representative aho|| be The
Arch ioaovEnOimeer^o Designated Representative shall be authoFizeo to am on the
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Architect/Eng i neer's behalf with respect m the Project and m bind the Arch itect/En8ine*r and the
ArcxneouenQinerr'vconaultamts.
1.4 GENERAL TERMS AND COINUTIONS
1AA The Owner and Architect/Engineer shall cooperate with one another to fulfill their respective
obligations under this *Omemom. Both parties shall endeavor to maintain professional wmmipn
relationships among all members m the Project Team.
1.4.2 Licensing Requirements. By signature on this Agreement, the declaration is made that the
Arch ItaouEnginoor is professionally qualified, reo|mmpud. and licensed to practice in the State of
Montana. In accordance with Montana law. the Arch necVEngineer akaU stamp and sign any
Contract Documents(drawings and specifications)prepared under this Agreement,
1.4.3 The Architect/Engineer shall be responsible for the professional quality, technical accuracy, and
coordination of all oonueptn, pmorammina, reports, de,|8ns. Umwingo, specifications, and omo,
services fum|nxod under this Agreement. The Arch teoxsnginee, uxa||, without additional
compensation, correct or revise any errors, uefixienoiea, or omissions in concepts, pmn,ammimo,
reports,designs,drawings,specifications,estimates,and other services.
14.4 Neither the Owner's ,ev|ew, approval or acceptance of, nor payment for, the services required
under this Agreement shall be construed to operate as a waiver of any rights under this Agreement
or of any cause of action arising out of the performance of services under this Agreement, and the
Arch iteouensmee/shall he and remain liable m the Owner|n accordance with applicable law for all
ouam and damages mo the Owner caused uy the Arch iv*ot/Enemeers negligent performance urany
of the services furnished under this Agreement.
1.4.5 Rights a R,mou|es The rights and namou|eo of the Owner allowed by law are in auU0om to any
rights and remedies provided in this Agreement.
1.4.6 Relationship, The | h hi of the Architect/Engineer to th Owner under this is that
or an independent contractor. 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.
Arch|tect/Engineer is not subject to the terms and provisions of the City's personnel policies
handbook and may not be unnamo^*d a City employee for workers' compensation or any other
purpose, Arch ioaouEnginoer.o not authorized u,represent the City o,otherwise bind the City inany
dealings between Arch|teot/EnQnneer and any third parties,
ArohitemKEnginaeruhm|| comply with the applicable requirements of the Workers' Compensation
Act,Title 3S. Chapter 71. MCA,and the Occupational Disease Act of Montana,Title 39,Chapter 71,
MCA. Architect/Engineer shall maintain workers' compensation coverage for all members and
employees of Arch itect/Eng ineer's business,except for those members who are exempted by law.
Arch|tecYEng)naer shall furnish the City with copies showing one of the following: <1> a binder for
workers' compensation coverage by an mxune, licensed and authorized to provide workers'
compensation insurance in the State of Montana; or (z) pmc* of exemption from workers'
compensation granted uy law for independent contractors.
141 Successors and Assigns. The Owner and the xromtevweog|ne*r each bind memsewev, me|,
partners, successors, legal representatives, and assigns to the other party to this Agreement and to
the partners. successors, legal representatives and assigns of such other party in respect to all
covenants of this Agreement. The Arch itectlEngi neer shall not assign or transfer its interest in this
Agreement without written consent of the Owner. Consent ooao not be unreasonably withheld.
Notwithstanding the provisions of this Paragraph 1.4.7, the parties recognize and agree that the
Arch|teovsn | ,w|||etamoub-oonsu|xxntomporformoeuainoemineoundorthioA8,nement. and
the Architect/Engineer shall be responsible for executing contracts with those sub-consultants.
1.48 Records and Documentation:
1.4.8.1 The Arch|V,00Engineer and the Arcma,utlEngimeer's consultants shall be aware that an
dnrumentahvm, including electronic correspondence, in the Owner's possession are public
records and the Owner is obligated to make all such records available upon request to any
party or individual unless such records meet statutory requirements or Montana
Administrative Rules for confidentiality and nnn'disc|onwne.
1.4.8.2 The Owner shall have access to all records, documents, correspondence, and files of the
Architect/Engineer, its employees,engineers, and consultants pertaining to the Project.This
access shall be continuing and survive final acceptance of the Project by the Owner or the
termination of this Agreement for either cause or convenience. Such records shall be kept
in u generally recognized format for a period of thew (3) years from the effective date of
termination of this Agreement or Final Acceptance of the Project by the Owner. All records
shall be available mthe Owner or their authorized representatives. The Owner does not
consider dncum*nta, fi|eo, and records in the Architect/EnV|noe/o povwooelon or the
ArchitecUEnginee/sconnm|tonts' possession tohepublic records unless determined »uuo
so by law or unless they come into the Owner's possession. Access and review does not
constitute possession uv the Owner,
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1.4.9 The Arch warrants that hn has not employed m retained any partnership,
corporation, other than a bona fide employee or principal owner working for the Architect/Engineer
vz solicit or acquire the Project described in this Agreement,
14.10 Nothing contained in this Agreement shall create a contractual relationship with or a cause of action
in favor ofa m|m party against either the Owner urArcmteotJEng|noer except wa provided in the
"Dispute Resolution" article o,this Agreement. There are no intended third-party beneficiaries of
this Agreement.
1.4.11 The Arch itept/Engineer will have a policy to provide equal employment
opportunity in accordance with all applicable state and federal mnn-u|ncr^mination laws, regulations,
and contracts, The Architect/Engineer will not refuse employment to a rerson, bar person from
employment,or discriminate against a person in compensation or in a term, condition,or privilege of
employment because ofrace, oo|ur, renoion, creeo, political ideas, sex, age, marital stsue, national
o,igm, actual or perceived sexual orientation, gender identity, poyowo| or mental disability, except
when the reasonable demands of the position require an age, physical or mental disability, nwnta|
status or sex distinction, The Arch|teooEngineershall be subject d comply with Title VI of the
Civil Rights Act n[1984� Section 140. Title u, United States Code, and all m:Qu|au|ono promulgated
thereunder, The Arch item/Enginear shall mqoin* these nondiscrimination terms of its sub-
consultants providing services under this agreement.
1.1 RESPONSIBILITIES OF THE PARTIES
1.1.1 VwnaraRaepoosimotieoi
1.1.1 1 Unless otherwise provided under this Agreement, the Owner shall provide information in a
timely manner remommo requirements and parameters of the Project. The Owner oxan
fom|nh infn,mmmn, in ion with the Architect/Enoineer'vservices, setting forth the
Owner's objectives, aohedu|e, constraints and ru»s,/o, including space requirements and
relationships, special *nuipmnnt, systems and site requirements as applicable to the
Project-
1.1.1.2 The Owner shall examine documents submitted by the Architect/Engineer and shall render
decisions pertaining thereto in a timely fashion so as not to unduly delay the performance of
thnArchimwKEnginomr.
1.1.1.3 The Owner shall furnish the services of consultants other than those designated as part of
the Architect/Engineer's responsibility or authorize the ArchitecUEngineer to furnish them as
a change in service nrscope.
1.1.1.4 The Owner shall furnish testing, inspections, and reports as necessary for the Project such
as special mspectiono, mmntura|, mocban|ca), chemical, hazardous muvaria|e, and other
laboratory u*om, inepactinno, and reports not incorporated into this Agreement or shall
authorize the Arch'tecxEnOinee,00 furnish them aoo change m service orscope.
1 1 11 o The Owner shall furnish accounting and auditing services as may be necessary for the
Project as the Owner may require to ascertain how or for what purposes the
Arch|m*ot/Engineer has used the funds paid under the terms of this Agreement.
t 1 10 |f the Owner observes nr otherwise becomes aware of any error, fault, omission, or defect
in h P roject or non-conformance with the documentation or plans and specifications
prepared for the Project by the Arch itecusogineer, the Owner shall give prompt written
notice thereof to the ArcmtevoEnomoo/.
1.117 Upon equem, the Owner shall prepare for the Architect/Engineer the necessary bidding
in0zrmot|on, wage rateo, and the Construction Agreement ^ and other op*umoamono
deemed necessary uy the Owner. All contract documents and bidding information provided
by the Owner shall be eumenad to and complied with by the AmmteoUEngineorwithout
modification by the Arch|o:ot/Engineer unless changes are requested and/or approved by
the Owner. Any nxonoea mouo by the Arch uoovE^gineerwithout consent of the u*me,
shall ue the Arch|tevoEn0mme/aresponsibility,
1,1,2 Arch itect/EmOioee(oResponsibilities:
1.1.2.1 TxomnxxevxEngiemr'n services shall be performed as expeditiously as is consistent with
professional skill and oana ordinarily exercised by members of the same profession
currently practicing under similar circumstances at the same time and in the same or similar
|oca|ity, the essential omo,|y progress of the Project, and in accordance with the Project
Schedule, The Arch ueouEngineer recognizes and agrees that time ioor the essence ofthis
Agreement|n the performance nf its services.
1.1.2.2 Except with the Owner's knowledge and express written oonoent, the Arch|teot/cmgineer
shall not engage io any aoto,|ty, or accept any employment, other agreement, |oteeot, or
contribution that would new*unomy appear to compromise the x/o»iteovsnoineer»
professional judgment with respect oz this Project.
11co The Arch movuE ngineer ie expressly prohibited from participating|mor bidding on any part of
the Contract for Construction or multiple construction contracts, if any, let by the Owner,
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112.4 The Arch iteot/Eng|nm* shall review laws, codes, and regulations applicable to the
Architect/Engineer's services, The Arch it*cxengmeershall respond in the design the
Project to requirements imposed by governmental authorities having jurisdiction over the
Project.
1.1.2.5 The Arch|teoVEngineer xhmU be enndou to rely on the accuracy and completeness of
services and information furnished by the Owner and/or other employees nr officials of the
Owner designated by the Project Manager., The Architect/Engineer shall provide prompt
written nudoo to the owner if the Architect/Engineer becomes aware of any ennm,
omissions,o/inconsistencies in such services orinformation.
1.2 PROJECT BUDGET
121 The Owner shall provide information regarding the Owner's project budget. While the Owner and
*mmvaomsnumeershw|| endeavor mwork cooperatively to establish the parameters and individual
aspects of the budget. the Arch ueouEuqmeeragrees that the 0wmor. at its aa|e d|uoremon, retains
the right to establish all parameters and aspects of the budget, The Arch|x*ct/Engmeer shall
perform its services ina manner consistent with the budget,
1.12 The Architect/Engineer shall review the bid specifications and project budget furnished by the
Owner and make recommendations for the requirements of the Project. The Arch itecueoeioee,
ooan establish the requirements and all design parameters in cooperation with the Owner that shall
then become the Project Manual and the basis or design of the Project,
1.2.3 The Owner's increase to any part of the project budget during the design process based upon the
^/cximcuEnginear'n estimate is not prima facie evidence that the Arch itoobEng|maar is due
additional fees no/ does such on increase necessarily indicate a change in services to the
Arch itect/Engineer as negotiated and agreed upon at the time of execution of this Agreement.
1.3 PROJECT SCHEDULE
131 The Owner and Arch itect/E ng ineer shall cooperatively develop an initial Project schedule consistent
and compliant with the bid specifications and the Owners needs for timely delivery of xom|cov
under this Agreement.
1�12 The Arch tecvsmg|ne*rshall submit complete initial Project schedule which shall be consistent
with the time periods in the Initial Information document.
1,33 Adjustments the initial P oe made only msagreed upon uy both parties and
then documented as part ofmeeting minutes nr other separate, schedule alteration documentation.
The Arch itect/Eng in eer shall provide copies of all revised schedules to the Owner and Department.
1.3.4 Time limits established Uy the initial Project schedule approved by the Owner shall not ueexceeded
by moArcmteouEnn|n*er or Owner except as adjusted by the agreement ofboth parties and as
documented,
1.4 CHANGE IN SERVICES
1,4,1 Change in services of the Architect/Engineer, including services required of the Arch itect/Engin eer's
cvnvuuanm, may be accomplished after execution of this Agreement without invalidating the
Agreement.
1A2 Aohongo in the Project scope or program in not prima facie evidence that the Amh|teoxeno|neer
shall be due additional fees nor does such a change necessarily indicate a change in services.
143 The parties shall negotiate and enumerate changes in services by signed, *hman addendum tnthis
Agreement except for supplemental oemioao oQnaed to by the Owner. A Ompp|omonmp Service
agreed to by the Owner may be billed directly a* part nf the Arch tsvmEngmoer'a pay requests
without addendum, Such supplemental services«o not invalidate any portion of this Agreement.
1AA The Arch deoVEngineer shall promptly notify the Owner prior to providing any services itconsiders to
boa change from those enumerated m this Agreement.
1.441 If the Owner deems that all or a part of such services are not required,the Owner shall give
prompt notice to the Arch itect/Engin eer, and the Arch itectlEngineer shall have no obligation
»o provide those services.
1.4.4.2 If the Owner deems that all or a part of such services are required, the Owner shall give
prompt notice to the Arch itecVEnoinee,. and the two parties shall negotiate an appropriate
change m services addendum m this agreement.
1,4,4.3 The Owner may determine that all or part of such services are required but|s not obligated
to agree that such services are a change|n the services o,the Arch|oaruengmeor. All such
instances shall be subject to the "Dispute neno|udon^ amo|v of this Agreement. The
Arco|usouEn0inaar ahuU continue faithful performance of services, including matters in
u|opmto.
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1.4.5 None of the following circumstances are prima facie evidence that the Arch itecUEngineer is
experiencing a change in services for the Project, due adjustment to the schedule,or due additional
compensation:
1.4.5.1 change in the instructions or approvals given by the Owner that necessitate revisions in
Initial Information document, Project Manual, Project budget, Project schedule, design, or
Contract Agreement unless such changes are extensive, significantly alter the basic
concepts of the Project, or are done so before completion of Design Development (or
Preliminary Design);
1.4.5.2 unless there is significant change in the Project size and complexity as a result of changes
to the Project Manual;
1.4.5.3 performance or failure of performance on the part of the Owner or the Owner's consultants
or contractors unless such performance or failure are demonstrated to have damaged the
Architect/Engineer,
1.4.5.4 a dispute resolution proceeding or a legal proceeding related to the Project either during
design„ construction, warranty, or prior to the expiration of any applicable statute of
limitations;or,
1.4.5.5 the Owner's increasing the Project budget OF the Estimated CcnstructlaR Lest to adequately
fund the Project Manaul or at any phase of design or bidding, or extension of the Project
schedule.
1.5 OWNERSHIP OF DOCUMENTS
1.5.1 All reports, information, data, and other materials prepared by the Architect/Engineer pursuant to
this Agreement are jointly owned by the Architect/Engineer and the Owner. The Owner has
authority to release, publish or otherwise use, in whole or part, reports, information, data, and other
materials prepared by the Architect/Engineer pursuant to this Agreement, unless otherwise agreed
to in writing by the parties. Any re-use without written verification or adaptation by the
Architect/Engineer for the specific purpose intended will be at the Owner's sole risk and without
liability to the Arch itectlEngineer. 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 Owner.
1.5.2 The Owner agrees to indemnify and hold harmless the Arch itecUEngineer from any and all claims,
demands and causes of action of any kind or character arising separate from this Project as a result
of reuse of the documents developed under this Agreement.
1.5.3 The Owner is restricted from using the Architect/Engineer's license seal/stamp/signature in any form
or manner as part of any reuse of documents developed under this Agreement. The
Architect/Engineer may not remove its license seal/stamp/signature from the Contract Documents
used to construct the Project but may do so from electronic and hard copy Record Drawings
delivered to the Owner.
1.5.4 The Architect/Engineer shall have the right to include photographic or artistic representations of the
design and construction of the Project among the Arch itectlEngineer's promotional and professional
materials. The Arch itectfEngineer shall be given reasonable access to the completed Project to
make such representations. However, the Architect/Engineer's materials shall not include the
Owner's confidential or proprietary information regardless of whether the Owner has previously
advised the Architect/Engineer in writing of the specific information considered by the Owner to be
confidential or proprietary.
1.6 DISPUTE RESOLUTION
1.61 The Owner and Architect/Engineer shall endeavor to resolve controversies, claims, disputes, and
other matters in question between them through good faith debate, discussion,and negotiation prior
to submitting them to mediation or other legal proceeding.
1.6.2 During all debate, discussion, negotiation, and mediation, proceedings, the ArchitectlEngineer and
the Owner shall continue with performance of services in accordance with this Agreement, including
matters in dispute. The Owner shall continue to make payment for services not in dispute in
accordance with this Agreement.
1.6.3 Any and all controversies, disputes, claims, or other matters between the parties arising out of or
related to this Agreement shall be decided and settled in accordance with this Agreement and
applicable law.
1.6.4 Gallatin County, State of Montana, shall be the venue for all mediation, litigation or court
proceedings unless otherwise agreed upon in writing by both parties. State of Montana law shall
govern this Agreement and all dispute resolution and legal proceedings.
1.6.5 In no event shall any claim or dispute be made after the date when institution of legal or equitable
proceedings based on such claim, dispute, or other matter in question would be barred by the
applicable statute of limitations.
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1.6.6 Mediation:
1.6.6.1 Any claim, dispute or other matter in question arising out of or related to this
Agreement shall be subject to non-binding mediation as a condition precedent to
the initiation of litigation.
1.6.6.2 Request for mediation shall be filed in writing with the other party to the Agreement
and the parties shall endeavor to agree upon a mediator and a location for the
proceedings.
1.6.7 Dispute Between Owner and Contractor (the term "Contractor" includes any General)
Contractor/Construction Manager or Construction Manager at Risk):
1.6.7.1 In the event a dispute arises between the Owner and Contractor, or any other party,
whether before, during, or after construction, the Architect/Engineer shall advise
and consult with the Owner in attempting to resolve the dispute,whether informally
or by mediation,or other legal proceeding.
1.6.7.2 The Architect/Engineer will make himself and/or his consultants, agents, and
employees available and shall permit inspection of his records by the Owner. .
1.6.7.3 The Owner, at its sole discretion, may also enjoin the Architect/Engineer and/or
consolidate any claim or dispute with the Arch itectJEngineer to any dispute between
the Owner and Contractor.
1.6.7.4 The Owner will not be required to reimburse the Architect/Engineer for matters in
dispute at any time prior to a final determination or resolution of any claim or
dispute. In the event the Architect/Engineer caused, in whole or in part,the dispute
or controversy, the Architect/Engineer shall bear his costs for participating in the
resolution.
1.7 WAIVER OF CONSEQUENTIAL DAMAGES
1.7.1 The Architect/Engineer and the Owner waive all consequential damages against each other that
arise as a result any claims, disputes, or other matters in question arising out of or relating to
this Agreement. This mutual waiver is applicable, without limitation, to all consequential
damages as a result of either party's termination in accordance with this Agreement.
1.8 INDEMNIFICATION/INSU RANCE
1.8.1 Insurance. Architect/Engineer 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 This policy is an
',expense within limits"policy and the applicable policy limit is reduced by attorney's fees or costs
incurred in defense of a claim,and by any judgment or settlement payments
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.
The ArchitecUEngineer shall protect, defend, and save the Owner, its elected and appointed
officials, agents, agencies, and employees while acting within the scope of their duties as such
harmless from and against all claims, liabilities, demands, causes of action, and judgments
whatsoever(including the cost of defense and reasonable attorney fees) arising in favor of or
asserted by third parties on account of damage to property, personal injury, or death which
injury, death, or damage, arises out of services performed or omissions of services or in any
way results from the negligent acts or omissions of the Arch itecUEngineer, its agents, or sub-
consultants.
The Owner shall protect, defend, and save the ArchitectfEngineer, its agents and employees,
while acting within the scope of their duties as such, harmless from and against all claims,
liabilities, demands, causes of action,and judgments whatsoever(including the cost of defense
and reasonable attorney fees) arising in favor of or asserted by third parties on account of
damage to property, personal injury,or death which injury, death,or damage,arising out of or in
any way results from the negligent acts or omissions of the Owner, its elected and appointed
officials, agents, and employees but only if the Owner would be liable for the above in the
absence of this subsection.
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1.8.2 Indemnification and Hold Harmless. For other than professional services rendered,to the fullest
extent permitted by law, Architect/Engineer agrees to, indemnify, and hold the City its elected
and appointed officials, agents, agencies, and employees 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 Architect/Engineer or Architect/Engineer's agents or employees.
For the professional services rendered, to the fullest extent permitted by law,Architect/Engineer
agrees to indemnify and hold the City its elected and appointed officials, agents, agencies, and
employees 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 Architect/Engineer or Architect/Engineer's agents or employees.
Architect/Engineer 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, or for claims
for negligence or breach of contract arising out of this Agreement.
Should Owner be required to bring an action against the Architect/Engineer to assert its right to
defense or indemnification under this Agreement or under the Architect/Engineer'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.
1.9 TERMINATION OR SUSPENSION OF THIS AGREEMENT
1.9.1 If either party fails to comply with any condition of this Agreement at the time or in the manner
provided for, the other party, at its option, may terminate this Agreement and be released from
all obligations if the default is not cured within ten (10) days after written notice is provided to
the defaulting party. Said notice shall set forth the items to be cured. Additionally, the non-
defaulting party may bring suit for damages, specific performance, and any other remedy
provided by law. These 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 on the cover sheet of this Agreement.
1.9.2 If the Architect/Engineer fails to fulfill his obligations and the Agreement is terminated, the
Owner may prosecute the Project to completion by contract or other means available. The
Architect/Engineer shall be liable to the Owner for any and all additional costs incurred due to
the Arch itectfEngineer's failure to perform. The rights and remedies available to the Owner
provided herein are in addition to any and all other rights and remedies provided by law or
equity.
1.93 If the Owner fails to make payments to the Architect/Engineer in accordance with this
Agreement, such failure shall be considered substantial non-performance and cause for
termination subject to the written notice provision above or, at the Architect/Engineer's option,
cause for suspension of performance of services under this Agreement. If the
Architect/Engineer elects to suspend services, prior to suspension of services the
Architect/Engineer shall also give ten (10) days written notice to the Owner. In the event of a
suspension of services, the Architect/Engineer shall have no liability to the Owner for delay or
damage caused the Owner because of such suspension of services. The Architect/Engineer
shall resume services upon corrective action or submission of a corrective action plan by the
Owner.
1.9.4 The Architect/Engineer cannot terminate this Agreement or suspend services if the Project is
suspended or delayed by the Owner. The Owner shall notify the Architect/Engineer concerning
any suspension or delay and may direct the Architect/Engineer to suspend services accordingly.
If the Owner suspends or delays the Project for 12 months or more, the Owner agrees to
negotiate compensation with the Architect/Engineer for reasonable expenses incurred for re-
starting work, and agrees to compensate the Architect/Engineer for any increases in costs or
expenses resulting from the suspension or delay.
1.9.5 Any and all expenses, termination costs, anticipated overhead and profit, and consequential
costs as a result of any delay, suspension, or termination of this Agreement are specifically
excluded and shall not be due the Architect/Engineer.
2 PART 2
2.1 PROJECT ADMINISTRATION AND MANAGEMENT(FOR PART 2)
2.1.1 The Architect/Engineer shall be responsible for managing all the Arch itect/EngIneer's services and
administration of the Scope of Work under this Agreement in accordance with this Agreement. The
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Architect/Engineer shall consult with the Owner, research applicable design criteria, attend Project
meetings, maintain a Project contact list, communicate with members of the Project team, issue
progress reports and meeting minutes via email to the Owner and Department unless another
manner of distribution is agreed upon.
2.1.2 The Architect/Engineer shall establish the requirements and all design parameters in cooperation
with the Owner. If Programming is part of the Architect/Engineer's services under this Agreement,
the completed and approved Programming Documents shall become the Project Program and the
basis of design of the Project
2.1.3 The Architect/Engineer shall coordinate the services provided by the Architect/Engineer and the
Architect/Engmeer's consultants with those services provided by the Owner and the Owner's
consultants.
2.1.4 Upon request of the Owner, the Architect/Engineer shall make presentations to explain the Project
Program, concepts, and design of the Project to other interested parties as coordinated by the
Owner.
2.1.5 The Architect/Engineer shall submit documents to the Owner at intervals appropriate to the
programming and concept process for purposes of evaluation and approval by the Owner. The
Architect/Engineer shall be entitled to rely on approvals received from the Owner in the further
development of the design.
21.6 The Architect/Engineer shall assist the Owner in connection with the Owner's responsibility for filing
documents required for the approval of governmental authorities having jurisdiction over the Project.
2.2 EVALUATION DATA GATHERING ANALYSIS STUDIES AND REPORTS
2.2.1 The Architect/Engineer shall provide a preliminary evaluation of the initial information furnished by
the Owner under this Agreement. The Architect/Engineer shall review such information to ascertain
that it is consistent with the requirements of the Project and shall notify the Owner of any other
information or consultant services that may be reasonably needed for the Project.
2.2.2 The Architect/Engineer shall provide a preliminary evaluation of the Owner's site for the Project
based on the information provided by the Owner regarding site conditions, and the Owner's Initial
Information,schedule,and budget.
2.2.3 The Architect/Engineer shall perform a data gathering effort regarding the Owner's initial conditions
for the Project. Such data gathering effort shall involve, but not be limited to, an initial meeting to
define data gathering parameters, proposed site locations, potential utilities, traffic patterns,
pedestrian flow, aesthetic and architectural aspects of other facilities in the area in order to provide
essential input to the Project Program and the Owner's decision-making process.
2.2.4 For existing facilities to be renovated, demolished, or rehabilitated, data gathering shall consist of:
initial meeting to define data gathering parameters; preparation of site drawings and complete as-
built CAD drawings of the existing facility(or area affected by the work)of architectural, mechanical,
electrical and structural conditions if none are provided by the Owner; establishment of project
boundaries; code evaluation of the existing facility; determination of all utility connections;
hazardous materials investigation and report; prepare and analyze existing data pertaining to the
facility's function,location, and operation.
2.2.5 The Architect/Engineer shall prepare and maintain the information obtained in data gathering for
presentation to the Owner and inclusion into the Project Program,
2.2.6 If feasibility studies are requested by the Owner, the Architect/Engineer shall perform a detailed
investigation and analysis to determine the technical, financial, and functional viability of the
proposed Project. Fees for feasibility studies shall be incorporated into the costs of Programming or
indicated separately in the Architect/Engineer's compensation.
2.3 EVALUATION OF THE BUDGET AND ESTIMATE OF CONSTRUCTION COST
2.3.1 When the Project requirements have been sufficiently identified, the Architect/Engineer shall
prepare an estimate of construction cost. This estimate may be based on current area, volume,
similar conceptual or recent construction history estimating techniques. If programming is included
in the Architect/Engineer's services under this Agreement, the Architect/Engineer shall update and
refine the estimate of construction cost throughout the programming process. The
Architect/Engineer shall advise the Owner of any adjustments to previous estimates indicated by
changes in Project requirements or general market conditions. If at any time the
Arch itect/Engineer's estimate of construction cost exceeds the Owner's budgeted construction cost,
the Architect/Engineer shall make appropriate recommendations to the Owner to adjust the
Project's size,quality,or budget.
2.3.2 Evaluations of the Owner's budget for the Project, the estimate of construction cost, and updated
estimates of construction cost prepared by the Architect/Engineer, are to represent the
Arch itect/Engineer's best judgment as a design professional familiar with the construction industry.
It is recognized, however, that neither the Architect/Engineer nor the Owner has control over the
cost of labor, materials or equipment, the selected contractor's methods of determining bid prices,
or over competitive bidding, market or negotiating conditions. Accordingly, the Architect/Engineer
cannot and does not warrant or present that bids or negotiated prices will not vary from the Owner's
Page 9 of 10
budget for the Project or from any estimate of construction cost or evaluations prepared by the
Architect/Engineer.
2.3.3 The Construction Cost is part of the Project Budget and shall be the total "Hard" costs or, to the
extent the Project is not completed„ the estimated cost to the Owner of all elements of the Project
programmed, designed, or specified by the Architect/Engineer. Estimates of Construction Cost
shall include the cost at projected market rates of labor and materials and equipment designed,
specified, selected or specially provided for by the Arch itectfEngineer, including the costs of
management or supervision of construction or installation provided by a separate construction
manager or contractor,plus a reasonable allowance for their overhead and profit.
EXECUTION OF THIS AGREEMENT
This Agreement entered into as of the day and year first written above.
Architect/Engineer:
StgQature
Ben Lloyd'
Print
Architect/President
Title
Is this company incorporated?Yes No
Person signing for the Architect/Engineer shalt be a principal owner
in the firm or a corporate officer and be legally able to bind the
Architect/Engineer to all provisions of this Agreement.
Owner: CITY OF BOZEMAN'
CHRIS KUKULSKI
City Manager
for the CITY OF BOZEMAN
Date
APPROVED AS TO FORM:
GREG SULLIVAN
City Attorney
for the CITY OF BOZEMAN
Attest:
BY: et�,,��
(Clerk of C mmission)
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