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HomeMy WebLinkAbout13- PSA between City and Morrison-Maierle Services for Bogert Pool Boiler Professional Engineering Services Agreement RECEIVED SEP 2 5 2013 d¢SO2L�+,� CO. PROFESSIONAL ENGINEERING SERVICES AGREEMENT THIS AGREEMENT is made and entered into this 17th day of September, 2013, 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, Morrison-Maierle, Corporation, Bozeman, MT 59771, hereinafter referred to as "Engineer." In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree as follows: 1. Purpose: City agrees to hire Engineer as an independent contractor to perform for City services described in the Scope of Services attached hereto as Exhibit "A" and by this reference made a part hereof. 2. Effective Date: This Agreement is effective upon the date of its execution and will terminate on the 301h day of October, 2013. 3. Scope of Work: Engineer will perform the work and provide the services in accordance with the requirements of the Scope of Services attached hereto. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. 4. Payment: City agrees to pay Engineer Five Thousand Eighty Dollars ($5,080.00) for services performed pursuant to the Scope of Services. In addition, production of reproducible record drawings will be billed at the hourly rate, not to exceed five hundred Dollars ($ 500 ). Any alteration or deviation from the described work that involves extra costs will be performed by Engineer after written request by the City, and will become an extra charge over and above the contract amount. The parties must agree in writing upon any extra charges. 5. Engineer's Representations: To induce City to enter into this Agreement, Engineer makes the following representations: a. Engineer has familiarized itself with the nature and extent of this Agreement, the Scope of Services, 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 Professional Services Agreement for ENGINEERING Services for Bogert Pool Boiler Pagel of 7 performance of the Scope of Services. b. Engineer 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 Engineer is an independent contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Engineer 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. Engineer is not authorized to represent the City or otherwise bind the City in any dealings between Engineer and any third parties. Engineer 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. Engineer shall maintain workers' compensation coverage for all members and employees of Engineer's business, except for those members who are exempted by law. Engineer 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, Engineer 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 o� or in any way arising or resulting from any intentional or negligent act on the part of Engineer or Engineer's agents or employees. For the professional services rendered, to the fullest extent permitted by law, Engineer agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and expenses, Professional Services Agreement for ENGINEERING Services for Bogert Pool Boiler Page 2 of 7 including reasonable defense attorney fees, to the extent caused by the negligence or willful misconduct of the Engineer or Engineer's agents or employees. 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. Should City be required to bring an action against the Engineer to assert its right to defense or indemnification under this Agreement or under the 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 Engineer 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, 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 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 Engineer commencing work. Professional Services Agreement for ENGINEERING Services for Bogert Pool Boiler Page 3 of 7 8. Professional Service/Endorsement: Engineer agrees that all services and work performed hereunder will be accomplished in a professional manner. Engineer shall place his/her endorsement on all drawings and other data furnished to the City. 9. Compliance with Laws: Engineer agrees to comply with all federal, state and local laws, ordinances, rules and regulations, including the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA. Engineer agrees to purchase a City business license. 10. Nondiscrimination: The Engineer will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Engineer 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 Engineer 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 there under. The Engineer shall require these nondiscrimination terms of its sub-consultants providing services under this agreement. 11. Default and Termination: 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 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 Engineer may not subcontract or assign Engineer'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 Engineer pursuant to this Agreement, except those separately identified in the Professional Services Agreement for ENGINEERING Services for Bogert Pool Boiler Page 4 of 7 Scope of Services or in other written agreements between the parties, are jointly owned by the Engineer and the City. The City has the exclusive and unrestricted authority to release, publish or otherwise use, in whole or part, information relating thereto. Any re-use without written verification or adaptation by the Engineer for the specific purpose intended will be at the City's sole risk and without liability or Iegal exposure to the Engineer. 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. Liaison: City's designated liaison with Engineer is James Goehrung and Engineer's designated liaison with City is David Weiel, PE . 15. Applicability: This Agreement and any extensions hereof shall be governed and construed in accordance with the laws of the State of Montana. 16. Reports/Accountability/Public Information: Engineer agrees to develop and/or provide documentation as requested by the City demonstrating Engineer's compliance with the requirements of this Agreement. Engineer 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 Engineer pursuant to this Agreement was used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The Engineer shall not issue any statements, releases or information for public dissemination without prior approval of the City. 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. 19. Dispute Resolution: Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute shall be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 20. Survival: Engineer's indemnification obligations shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. Professional Services Agreement for ENGINEERING Services for Bogert Pool Boiler Page 5 of 7 21. Headings: The headings used in this Agreement are for convenience only and are not be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. 22. Waiver: A waiver by City of any default or breach by Engineer of any covenants, terms, or conditions of this Agreement does not limit City's right to enforce such covenants, terms, or conditions or to pursue City's rights in the event of any subsequent default or breach. 23. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 24. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 25. Bindinp- Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 26. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. 27. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 28. Authority: Each party represents that it has full power and authority to enter into and perform this Agreement and the person signing this Agreement on behalf of each party has been properly authorized and empowered to sign this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first above written. CITY OF BOZEMAN, MONTANA Morrison-Maierle, Inc_. ENG EER (Type Na Above) BY By Chris Kukulski, City Manager Print Name: Jack Schunke, PE Print Title: Vice President Professional Services Agreement for ENGINEERING Services for Bogert Pool Boiler Page 6 of 7 Exhibit A SCOPE OF SERVICES • Site and Existing Facilities Evaluation • Boiler sizing based on actual pool volume, recovery time, and surface heat loss • Hydronic distribution system connection to pool piping • Alternatives Evaluation, Code Research • Preparation of Project Cost Estimate • Preparation of Technical Specifications • Permit and Construction Drawing Preparation Professional Services Agreement for ENGINEERING Services for Bogert Pool Boiler Page 7 of 7