HomeMy WebLinkAbout13- PSA between City and Flying Horse Communication for strategic communication plan 7
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PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this 16 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, Flying Horse Communication, Inc,, a Montana corporation
with its principal place of business at 347 S. Ferguson Avenue, Studio 1, Bozeman, NIT 59718
("Consultant"), 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:
I. Purpose/Scope of Work: City agrees to hire Consultant 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. For conflicts between this Agreement and the Scope
of Services, unless specifically provided otherwise, the Agreement governs.
2. Effective Date/Term: The Effective Date of this Agreement is the 16 day of
September, 2013. The term of this Agreement shall commence as of the Effective Date and expire,
unless earlier terminated as set forth herein, no later than two (2) years after the Effective Date.
4. Payment: City agrees to pay Consultant an amount as indicated in the Scope of
Services. For work. under Scope of Services I.a (Communication Plan) such payment shall not
exceed twelve thousand five hundred Dollars ($12,500.00). For work under Scope of Services Lb
(Communication Services) all work must be pre-approved by the City's Representative. Payment
for Communication Services shall be in addition to the payment -for the Communication Plan.
Consultant shall receive payment through the standard City accounts payable procedures and only
upon itemized invoice from Consultant. Any alteration or deviation from the described work that
involves additional costs above the Agreement amount will be performed by Consultant only after
written request by the City.
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 Services, and with all local conditions and federal, state and local laws, ordinances, rules,
and regulations that in any manner may affect cost, progress or performance of the Scope of
Services.
Professioiial Services Agreeiricilt for Commuiiicatioii Services
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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 and in accordance with generally
accepted industry standards and practices; 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 and its employees and agents are not subject to the terrns 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 fumish 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 grossly 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
expenses, including reasonable defense attorney fees, to the extent caused by the gross 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
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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
for all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed
against, recovered from, or suffered by the City without limit and without regard to the cause
therefore and which is acceptable to the City and Contractor shall furnish the City an accompanying
certificate of insurance and accompanying endorsements issued by a company authorized to do
business in the State of Montana in amounts not less than as follows:
• Workers' Compensation - statutory
• 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 no later than (10) days after the
Consultant commencing work.
8. Confidentiality: By virtue of this Agreement, Consultant will have access to
confidential information ("Confidential Information"). If City provides Consultant with any
Confidential Information, Consultant agrees that it will not, at any time or in any manner, use any
Confidential Information for Consultant's own benefit or divulge or communicate any Confidential
Information without the prior consent of the City. For purposes of this section, the City shall
include City agents including Tetra Tech, Inc. Consultant will take all necessary steps to protect
such Confidential Information and treat it as strictly confidential. Confidential Information does not
include information that is already in the public domain prior to disclosure hereunder, is or becomes
publicly known through no wrongful act of either party or any of its employees, has been approved
for release by written authorization of the originating party, or has been disclosed pursuant to a
requirement of a government agency or of law. This section shall survive termination or expiration
of this Agreement for a period of three (3) years from the Effective Date.
Professional Services AgreemerIt far COITI III U11i catioil Services
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9. Ownership of Deliverables: , All deliverables and work product created or
delivered hereunder, shall become the sole and exclusive property of City, is so far as it is the
Consultants original work or the Consultant or City has acquired the License to use intellectual
property owned by third parties. Consultant shall have no rights or interests in such deliverables
and work product, and expressly disclaims any such rights or interests in such deliverables and
work product.
10. Compliance with Laws: Consultant agrees to comply with all federal, state and
local laws, ordinances, rules and regulations. Consultant agrees to purchase a City business license.
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 as allowed pursuant to
this Agreement, 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, mailed to the parties at the addresses set forth in the first
paragraph of this Agreement, or emailed to an email address customarily used by each party.
12. Termination for Citv's Convenience:
Notwithstanding the provisions of Section 12, above:
a. Should conditions arise which, in the sole opinion and discretion of the City, make it
advisable to the City to cease work under this Agreement, City may terminate this
Agreement by written notice to Consultant ("'Notice of Termination for City's
Convenience"). The termination shall be effective in the manner specified in the
Notice of Termination for City's Convenience and shall be without prejudice to any
claims that the City may otherwise have against Consultant.
b. Upon receipt of the Notice of Termination for City's Convenience, unless otherwise
directed in the Notice, the Consultant shall immediately cease work under this
Agreement. Consultant shall do only such work as may be necessary to preserve,
protect, and maintain work already completed, in progress, or under delivery to the
City.
c. In the event of a termination pursuant to this Section 13, Consultant is entitled to
payment only for those services Consultant actually rendered on or before the receipt
of the Notice of Termination for City's Convenience.
d. The compensation described in Exhibit A is the sole compensation due to Contractor
for its performance of this Agreement. Contractor shall, under no circumstances, be
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entitled to claim or recover consequential, special, punitive, lost business
opportunity, lost productivity, field office overhead, general conditions costs, or lost
profits damages of any nature arising, or claimed to have arisen, as a result of the
termination.
13. Modification and AssignabifiL: 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. No
subcontract or assignment will relieve Consultant of its responsibility for the performance of the
Agreement.
14. Reports/Accountability/Public information: Consultant agrees to develop and/or
provide documentation as requested by the City demonstrating Consultant's compliance with the
requirements of 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 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. Limitation on Consultant's Damages; Time for Asserting Claim:
a. In the event of a claim for damages by Consultant under this Agreement,
Consultant's damages shall be limited to contract damages and Consultant hereby
expressly waives any right to claim or recover consequential, special, punitive, lost
business opportunity, lost productivity, field office overhead, general conditions
costs, or lost profits damages of any nature or kind,
b. In the event Consultant wants to assert a claim for damages of any kind or nature,
Consultant shall provide City with written notice of its claim, the facts and
circumstances surrounding and giving rise to the claim., and the total amount of
damages sought by the claim, within ten (10) days of the facts and circumstances
giving rise to the claim. In the event Consultant fails to provide such notice,
Consultant shall waive all rights to assert such claim.
16. Representatives:
a. City's Representative: The City's Representative for the purpose of this Agreement
shall be Chris Kukulski (City Manager) or such other individual as City shall
designate in writing which includes Craig Woolard (Public Works Director).
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Whenever approval or authorization from or communication or submission to City is
required by this Agreement, such communication or submission shall be directed to
Chris Kukulski as the City's Representative and approvals or authorizations shall be
issued only by such Representative; provided, however, that in exigent
circumstances when City's Representative is not available, Contractor may direct its
communication or submission to other designated City personnel or agents as listed
above and may receive approvals or authorization from such persons.
b. Consultant's Representative: The Consultant' Representative for the purpose of this
Agreement shall be Murray Steinman or such other individual as Consultant shall
designate in writing. Whenever direction to or communication with Consultant is
required by this Agreement, such direction or communication shall be directed to
Murray Steinman; provided, however, that in exigent circumstances when
Consultant's Representative is not available, City may direct its direction or
communication to other designated Consultant's personnel or agents.
17. Integration: This Agreement and all Exhibits attached hereto constitute the entire
agreement of the parties. Covenants or representations not contained therein or made a part thereof
by reference, are not binding upon the parties. There are no understandings between the parties
other than as set forth in this Agreement. All communications, either verbal or written, made prior
to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of
this Agreement by reference.
18. Survival: Consultant's indemnification obligations shall survive the termination or
expiration of this Agreement for the maximum period allowed under applicable law.
19. 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,
20, Waiver. A waiver by City of any default or breach by Consultant 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.
21. Severabili : If any portion of this Agreement, is held to be void or unenforceable,
the balance thereof shall continue in effect,
22. Applicable Law: The parties agree that this Agreement is governed in all respects
by the laws of the State of Montana.
23. Binding Effect: This Agreement is binding upon and inures to the benefit of the
heirs, legal representatives, successors, and assigns of the parties.
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24. 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.
25. Counterparts: This Agreement may be executed in counterparts, which together
constitute one instrument.
26. 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 CONSULTANT
Flying Horse Communication, Inc
By Ar By
Chris Kukulski, City Manager Murray StIT man, r sident
APPR07VED A&T FORM:
B
Greg"A", Bozeman C-ity Attorney
Professional Services Agreement for Communication Services
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Exhibit A
Scope of Services
1. Deliverables.
a, Consultant shall develop a strategic communication plan (the "Communication
Plan")to assist the City to effectively communicate information relevant to the
assumed migration of volatile organic compounds from City land at the Story Mill
landfill to nearby real property. The plan shall address 12 — 18 months of
communication strategy.
b. Consultant shall provide, at City's request, communication services
("Communication Services") relevant to the assumed migration of volatile organic
compounds from City land at the Story Mill landfill to nearby real property. Such
services may include public relations assistance, media and presentation training,
graphic design, and any other services requested by the City.
2. Work Schedule (including commencement and completion dates)
a. Work under this Agreement shall begin on September 16, 2013 and work pursuant to
I.a, herein, shall be completed within one (1) month of the Effective Date. Work
completed under I b, herein, shall commence on the Effective Date and continue
until services are no longer required by the City. Time is of the essence.
3. Schedule of Costs/Additional Costs, The cost for preparing the Communication Plan under
La, herein, shall be $250/hour not to exceed $12,500. The costs for services under Lb,
herein, shall be $200.00/hour.
Professional Services Aueement for Commuriication Services
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Client#: 75824 22FLYHORS
ACDATE(MWDPIYYYY)
ACORD,- CERTIFICATE OF LIABILITY INSURA
NCE - 1 9113/2013
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HGLDER,THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES
BELOW.THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S),AUTHORIZED
REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER.
IMPORTANT-.if the certificate holder is an ADDITIONAL INSURED,the policy(les)must be—endorsed.If SUBROGATION IS V4fA1VER,subject to
the terms and conditions of the policy,certain policies may require an endorsement.A statement on this certificate does not confer rights to the
certificate holder in lieu of such endorsement(s).
PRODUCER CONTACT
NAME: Blaine Martin
Hub Int'l. Mountain States Ltd PHONE FAX
JAIC NO,E.1);,406 582-8868— (A/C,Nola _8878
2002 North 22nd Ave.,Suite 1 E-MAIL
Bozeman, MT 59718
ADDREss: jamie.roe@hubinternational.com
INSURER(S)AFFORDING COVERAGE NAIC#
406 582-8868
INSURERA;Ohio Security Insurance Company
------_--_................................. ..............
INSURED INsuRERB;Ohio Casualty Insurance Company �24074
Flying Horse Communication,Inc.
:
M&M Research, LLC INSURERC ........
INSURER D:
347 South Ferguson Ave, Studio 1 _INSU_R_FR E: -..............
Bozeman, MIT 59718 ......INSURER F: .. ..........
COVERAGES CERTIFICATE NUMBER: REVISION NUMBER:
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,
EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS-
INSR POICY-EFF POLI C U EXP
LTR TYPE OF INSURANCE Po LICY R MIDD�= MM IO YYYY
LIMITS
I
A GENERAL LIABILITY BZS55242344 1012312012 1012312013 1 EACH OCCURRENCE
51,000,000
X COMMERCIAL GENERAL LIABILITY PAPMAV
I j?ERENTED
CLAIMS-MADE I X-1 OCCUR R S
MED EXP(Any one person' $10,000
'PERSONAL&ACV INJYRY 51,000,000
LGENERAL AGGREGATE s2,OOO,OOO
GENT AGGREGATE LIMIT APPLIES PER PRODUCTS-COMPIOP AGO s2,000,000
. ...........
POLICY PRco7 F-1 ILOC F $
7 ...........
A AUTOMOBILE LIABILITY BAS55242344 1012312012 10/2312W COMBINED SINGLE LIMIT $1,000,000
ANY AUTO BODILY INJURY(Per person) $
ALL OWNED SCHEDULED
AUTOS AUTOS BODILY INJURY(Per ziortjent) S
X HIRED AUTOS x NON-OWNED FPROPERTY DAMAGE
AUTOS '_(Per accident)_
$
X UMBRELLA LIAR B OCCUR US055242344 10/23/2012 1012312013 EACH CCCURRENCE s6 040 000
............
EXCESS LIAB
CLAIMS-MADE AGGREGATE $6,000,000
DED ; X� RETENTION S1 0,000
WORKERS COMPENSATION VVC STAT U OTH-
AND EMPLOYERS'LIABILITY YIN
ANY PROPRIETORIPARTNPR1F-XFCUTNF
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(Mandatory in NH) E__L DISEASE-EAFMPLCYEE S
If yes describe under
DESCRIPTYON OF OPERATIONS below
E DISEASE-POLICY LIMIT $
DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES(Attach ACORD 101,Additional Remarks Schedule,if more space is required)
City of Bozeman, its officers,agents and employees are included as additional insured with regards
to General Liability and Automobile Liability if required by written contract.
CERTIFICATE HOLDER CANCELLATION
City of Bozeman,its officers, SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN
agents and employees ACCORDANCE WITH THE POLICY PROVISIONS.
121 North Rouse St
Bozeman, MT 59771 AUTHORIZED REPRESENTATIVE
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@ 1988-2010 ACORD CORPORATION,All rights reserved.
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