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HomeMy WebLinkAboutFull Re-Bid Packet for Bogert Pool Restoration.pdfCITY OF BOZEMAN, MONTANA INVITATION TO BID NOTICE IS HEREBY GIVEN that the City of Bozeman, Montana, is accepting sealed bids for the: CITY OF BOZEMAN BOGERT POOL SANDBLASTING, PAINTING AND MAIN DRAIN REPLACEMENTPROJECT\ Sealed bids for structural and component improvements to the City of Bozeman’s BOGERT SWIMMING POOL will be received by the City Clerk, City Hall, 121 N. Rouse Avenue, P.O. Box 1230, Bozeman, Montana 59771-1230 until 2:00 p.m., mountain standard time, Tuesday, November 26th, 2013, and then publicly opened and read aloud. Please write the name of the project: BOGERT POOL SANDBLASTING, PAINTING AND MAIN DRAIN REPLACEMENT on the front of the sealed bid. The physical address is: City Clerk’s Office, Suite 202, City Hall, 121 N. Rouse Avenue, Bozeman, Montana. The mailing address is: City Clerk’s Office, Suite 202, City Hall, P.O. Box 1230, Bozeman, Montana, 59771. Bids must be received before 2:00 p.m. Tuesday, November 26th, 2013. Original copies must be submitted – no faxed of electronic bids will be accepted. Bids will be opened and read following the close of bids. The project is detailed in the Instructions to Bidders, Bid Specifications, Bid Form, and Construction Agreement. This project is for sandblasting the interior pool surface to remove multiple layers of paint, repairing any pool lining that is torn loose during the sandblasting, repainting the interior pool surface, and replacing the main pool drain. Pursuant to 7-1-4127, Montana Code Annotated (MCA), Further requirements for this project including the Instructions to Bidders, Bid Specifications, Bid Form, and Construction Agreement may be obtained at the office of the City Clerk, City Hall, 121 North Rouse, Suite 202, Bozeman, Montana 59771, telephone number (406) 582-2320, by e-mail at agenda@bozeman.net, or interest parties may download the project requirements at www.bozeman.net under the “Business” tab, and the RFP/BID drop down menu. For further questions pertaining to this invitation to bid, please contact Aquatics Director Dan McCarthy at (406) 582-2906. As required by the Instructions to Bidders, any entity submitting a bid under this invitation must sign and return the required affirmation stating that they 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 the work under this invitation should it be awarded to that entity. Each entity submitting under this invitation shall also recognize in writing the eventual Construction Agreement will contain a provision prohibiting discrimination as described above and this prohibition on discrimination shall apply to the hiring and treatment of the Contractor’s employees and to all subcontracts. Also as required by the Instructions to Bidders, each bid or proposal must be accompanied by a Certified Check, Cashier's Check, or Bid Bond payable to the City of Bozeman, Montana, in an amount not less than ten percent (10%) of the total amount of the bid. No bid may be withdrawn after the scheduled time for the public opening of bids, which is 2:00 p.m. local time, Tuesday, November 26th, 2013. The City reserves the right to reject any or all bids received, to waive informalities, to postpone the award for a period of not to exceed Sixty (60) days, and to accept the bid which is in the best interests of the City. Dated at Bozeman, Montana, this 6th day of November, 2013 Stacy Ulmen, CMC City Clerk, City of Bozeman Published Bozeman, Montana Sunday, November 10, 2013 Sunday, November 17, 2013 1 INSTRUCTIONS TO BIDDERS (City of Bozeman Bogert Pool Sand Blasting, Painting, and Main Drain Replacement) BID DOCUMENTS: The bid documents for the City of Bozeman Bogert Pool Sand Blasting, Painting, and Main Drain Replacement (the “Project”) include the Invitation to Bid, this Instruction to Bidders, the Bid Specifications, the Construction Agreement and the Bid Form. BIDS: All bids must be legibly written in ink. No alterations by erasures or interlineations will be permitted in bids or in the printed forms. Each bid shall be enclosed in a sealed envelope addressed to: Bozeman City Clerk, PO Box 1231 Bozeman, Montana 59715, or physically delivered to the address on the Invitation to Bid and endorsed on the outside of the envelope with the words: Bogert Pool Sand Blasting, Painting, and Main Drain Replacement. Bids shall be strictly in accordance with the prescribed Bid Form. Any modifications thereof or deviations there from may be considered as sufficient cause for rejection. Bids carrying riders or qualifications to the bid being submitted may be rejected as irregular. Each bid shall indicate the total bid price. The price quoted in a bid shall include all items of labor, materials, tools, equipment and other costs necessary to fully complete the Project to the Bid Specifications. Any items omitted from the Bid Specifications which are clearly necessary for the completion of the Project shall be considered a portion of the Project although not directly specified or called for in the Bid Specifications. All parts and materials shall be new. In all cases, materials must be furnished as specified. The City reserves the right and shall be at liberty to inspect all materials and workmanship at any time during the Project and shall have the right to reject all materials and workmanship which do not conform to the Bid Specifications. However, the City is under no duty to make inspection, and if no inspection is made, the chosen contractor shall not be relieved of any obligation to furnish materials and workmanship strictly in accordance with the Bid Specifications. BID SECURITY: To be considered, the bid must be accompanied by a bid security unconditionally payable to the City of Bozeman for ten percent (10%) of the total amount of the bid and attached as Exhibit 1 on the Bid Form. Each Bidder shall expressly covenant in the bid that if the Bidder is awarded the bid, the Bidder will, within thirty (30) days after the bid is awarded, enter into the Construction Agreement with the City of Bozeman in substantially the same form as shown on the Construction Agreement. Bid security must be provided in a form specified in §18-1-203, MCA, which includes, but is not limited to, certified check, cashier’s check, bank draft, bid bond, guaranty bond, or surety bond. Bid security through a bid, guaranty or surety bond must be issued by a surety company authorized to do business in the State of Montana. The bid security protects and indemnifies the City against the failure or refusal of the successful Bidder to timely enter into the Construction Agreement. SIGNATURE OF BIDDERS: Each bid must be signed in ink by the Bidder with the Bidder’s full name and business address or place of residence. If the Bidder is a firm or partnership, the name and residence of each member must be inserted. If the bid is submitted by or in behalf of a corporation, it must be signed in the name of the corporation by a corporate official authorized to bind the corporation and who shall also affix the corporate seal of the corporation to the bid. Any bid by a corporation signed by a 2 person other than a corporate officer must be accompanied by a power of attorney showing that person’s authority to sign for the corporation. ONLY ONE PROPOSAL: No Bidder may submit more than one bid. Two bids under different names will not be received from one firm, partnership, association, or corporation. RESPONSIBILITY OF AGENT: Any person signing a bid as the agent of another, or of others, may be required to submit satisfactory evidence of authority to so sign. TITLE: The position title of any person executing the bid or Agreement shall be clearly indicated beneath the signature. RESPONSIBLE BIDDER: Bidder is not deemed a responsible bidder if Bidder is delinquent in payment of property taxes or special improvement district assessments within the City of Bozeman for at least six (6) months. Any Bidder required by the Bozeman Municipal Code to have a general business license in the City of Bozeman must obtain such license before a bid can be awarded to a bidder. EXAMINATION OF DOCUMENTS/SPECIFICATIONS: Before submitting a bid, each Bidder should examine the Bid Specifications, these Instructions to Bidders, the Bid Form, and the Construction Agreement thoroughly and become familiar with federal, state, and local laws, ordinances, rules, and regulations that may, in any manner, affect the cost or delivery of the goods. INTERPRETATION OF CONTRACT DOCUMENTS: If any person contemplating submission of a bid is in doubt as to the true meaning of any part of the specifications or the Construction Agreement, that person may submit a written request to the City for an interpretation thereof. The person submitting the request will be responsible for its prompt delivery. Any interpretation of the proposed Construction Agreement will be made only by an addendum duly issued and a copy of any such addendum will be mailed or delivered to each person receiving the specifications. TIME OF COMPLETION: The time of performance of the Project delivery of the goods to be purchased is a basic consideration of the award of bid. It is necessary that each Bidder satisfy the City of the Bidder’s ability to deliver the Project within the stipulated time. ADDENDA: If applicable, any addenda issued during the time of bidding, or forming a part of the specifications provided to Bidder for the preparation of Bidder’s proposal, shall be covered in the bid and shall be made a part of the Construction Agreement. Receipt of each addendum shall be acknowledged in the bid. Any bid in which all issued addenda are not acknowledged will be considered incomplete and will not be read. WITHDRAWAL OF BID: No Bidder may withdraw any bid for a period as specified in the Invitation to Bid after the date and hour set for the opening declared herein. Prior to that time, Bidder may withdraw a bid by written request. The request to withdraw a bid must be signed in the same manner and by the same person or persons who signed the bid. ACCEPTANCE AND REJECTION OF BIDS: The City reserves the right to accept or reject the bids in the best interest of the City. The City reserves the right to waive informalities and irregularities in any bid submitted, to reject non-conforming, non-responsive or conditional bids, to correct arithmetic errors without changing unit price, and postpone awarding of the Construction Agreement for a period not exceeding sixty (60) days. AWARD OF BID: If the bid is to be awarded, City will award the bid to a responsible Bidder whose bid is most responsive as determined solely by the City and which conforms to all material terms and 3 conditions of the bidding documents and proposed Construction Agreement, is lowest in price, is in the best interest of the project, and other factors considered. The award may be based on the lowest responsive cumulative base bid plus any added alternate schedules the City determines to include with the project. The successful Bidder will be notified by letter mailed to the address shown on the bid that the bid has been accepted and that Bidder has been awarded the bid. CANCELLATION OF AWARD: The City reserves the right to cancel the award of any bid at any time before the complete execution of the Construction Agreement by all parties without any liability against the City. EXECUTION AND APPROVAL OF AGREEMENT: The Construction Agreement is available for review with the Bozeman City Clerk shall be signed by the successful Bidder and returned within the time shown on the bid. If the Construction Agreement is not executed by the City within fifteen (15) days following receipt from Bidder of the signed Agreement, Bidder has the right to withdraw the bid without penalty. The Construction Agreement is not effective until it has been fully executed by all of the parties thereto. FAILURE TO EXECUTE AGREEMENT: Failure to execute the Construction Agreement shall be just cause for annulment of the award. In the event of such annulment, the bid guarantee shall be forfeited to the City, not as a penalty, but as liquidation of damages sustained. Award may then be made to the next lowest responsible and qualified Bidder, or the project may be re-advertised as the City may decide. PAYMENT: Payment for all goods purchased under the Construction Agreement will be made by the City within the time period specified in and in accordance with the procedures outlined therein. NON-DISCRIMINATION: In accordance with law, each entity submitting a bid shall affirm on the form provided by the City that the Bidder shall not discriminate in the performance of the work called for in the Bid Specifications 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 as specified in the Construction Agreement. It is further understood that any person who is in violation of this clause shall be barred forthwith from receiving awards of any purchase from the City of Bozeman unless a satisfactory showing is made that discriminatory practices have ceased, and the recurrence of such acts is unlikely. BID FORM 1 BID FORM BOGERT POOL SAND BLASTING, PAINTING, AND MAIN DRAIN REPLACEMENT PROJECT P.O. BOX 1230 CITY OF BOZEMAN BOZEMAN, MONTANA 59771 TO: City Clerk 121 North Rouse Ave. P.O. Box 1230 Bozeman, Montana 59771-1230 THE UNDERSIGNED BIDDER, having familiarized themselves with the Work required by the Contract Documents, the site(s) where the work is to be performed, local labor conditions and all laws, regulations, municipal ordinances and other factors which may affect the performance of the Work, and having satisfied himself of the expense and difficulties attending performance of the work: HEREBY PROPOSES and agrees, if this bid is accepted, to enter into an Agreement, in the form attached, to perform all work for the restoration of the BOGERT POOL, including the assumption of all obligations, duties, and responsibilities necessary for the successful completion of the contract and the furnishing of all materials and equipment required to be incorporated in, and form a permanent part of, the work; tools, equipment, supplies, transportation, facilities, labor, superintendence, and services required to perform the Work; Bonds, Insurance and Submittals; all as indicated or specified in the Contract Documents to be performed or furnished by Contractor within the time and for the prices set forth in the following schedules. Sealed Bids are due in the office of the City Clerk, second floor of City Hall by 2:00p.m., Tuesday, November 26, 2013. At which time the bids will be opened, read, and reviewed by city staff and then will contact the selected contractor to schedule the work. Please turn in this full page package for your bid. No electronic versions will be accepted. Mailed bids must be received by the date and time specified. Please submit the bid in a sealed envelope with the title – Bogert Pool Sand Blasting, Painting, and Main Drain Replacement and list the name of your firm on the outside of the sealed bid envelope. The physical address is: City Clerk’s Office, Suite 202, City Hall, 121 North Rouse Ave., Bozeman, MT. The mailing address is: City Clerk’s Office, Suite 202, City Hall, P.O. Box 1230, Bozeman, MT., 59771. The City reserves the right to reject any and all Responses to Bids received or to waive bid informalities. The City of Bozeman is an Equal Opportunity Employer. BID FORM 2 The undersigned bidder agrees to be bound by this Bid for a period not to exceed 60 days. The undersigned Bidder agrees to furnish the required Bonds and to enter into a contract within fifteen (15) calendar days after Owner's acceptance of this Bid, and further agrees to complete all Work within the time specified per schedule after commencement of the contract time as defined in the General Conditions. The contract specifies that Contractor shall begin the Construction Project in the spring of 2014, after receiving a notice to proceed from City and the weather has provided the proper environmental conditions as required by the paint manufacturer. The contractor shall have all work completed within 30 days after beginning. Where multiple schedules are awarded under a single Contract, the contract times shall run concurrently unless separate notices to proceed are issued for the awarded schedules. Liquidated Damages shall be as specified in the attached Scope of Work of the Agreement Form. The undersigned Bidder agrees that the unit prices shall govern in checking the Bid, and should a discrepancy exist in the total prices and total amount of Bid as listed above, after extensions are checked and corrections made, if any, the total amount of the Bid as corrected shall be used in awarding the contract. The undersigned Bidder agrees that he has been afforded access to the construction site and has performed those independent site investigations as he deemed necessary. The undersigned Bidder hereby certifies the following: A) That this Bid is genuine and is not made in the interest of, or on behalf of, any undisclosed person, firm, or corporation, and is not submitted in conformity with any agreement or rules of any group, association, organization, or corporation; B) That he has not directly or indirectly solicited any other Bidder to put in a false or sham Bid; C) That he has not solicited or induced any person, firm, or corporation to refrain from bidding; D) That he has not sought by collusion to obtain for himself any advantage over any other Bidder or over the Owner. E) That he is not currently operating beyond the contract time on any previously awarded public works contract as defined and required by Article 15-50-203, MCA, as amended. The undersigned Bidder(s) either singularly or as a joint venture hereby certifies (certify) pursuant to Article 37-71-203, MCA, that he (they) is (are) duly and regularly licensed. BID FORM 3 Following is a summary of the proposed scope of work identified at the pre-construction walk through conducted on Tuesday, October 8, 2013. The purpose of the project is to renovate the pool lining at Bogert Pool and to modify the existing pool drains to meet current safety codes for swimming pools. In addition to the bid number provided, the contractor is asked to provide a construction time line outlining the critical steps and stages of the project and a calendar showing how the work will be completed. Upon award, the contractor will complete the contract document that was provided during the walk through, an electronic version can be provided. The contractor will also need to provide proof of insurance at the rates specified and a performance bond for the project. The job will be subject to both state and local rules including: state prevailing wage rates; 1% Mt. Dept. of Revenue Withholding; and City of Bozeman non-discrimination resolution. The identified work components include: This project is for a renovation of the pool lining at Bogert Pool and replacement of the existing pool drains to meet current safety codes for swimming pools. Work will include the following: Sand blast all interior surfaces of the existing pool surface materials to remove existing layers of inefficient multiple painting coats in order to prepare the pool for a clean painted surface using techniques and equipment customary for the work. Repair any pool lining material damaged during the sand blasting, any cracks on the pool lining, and cover any exposed rebar prior to painting. Replace the existing pool drains with a duel drain opening configuration in order to meet current safety standards for pools. The drain replacement specifications are included as an attachment developed by Morrison-Maierle Inc. Prepare the surface for painting by, at a minimum triple rinsing the pool and using an acid etching technique. Paint the interior of the pool with Paralon 2 rubber chlorinated based paint or similar. The work will need to meet the required health standards and the Gallatin County Health Department will inspect the work prior to final approval. BID FORM 4 BIDDER agrees to perform all the work described in the CONTRACT DOCUMENTS for the following lump sum: TOTAL CONTRACT BID PRICE $_________________________ (Written Bid Price Number) ESTIMATED COSTS OF PROJECT COMPONENTS: Sand Blasting $________________ Estimated Cost Per Square Foot For Blown Out Lining $________________ Estimated Cost Per Lineal Foot for Crack Repairs $________________ Pool Drain Replacement $________________ Surface Preparation Prior to Painting $________________ Painting The Pool Liner $________________ The undersigned Bidder acknowledged receipt of the following Addenda, which have been considered in preparation of this Bid: No._____________________________ Dated____________________ No._____________________________ Dated____________________ No._____________________________ Dated____________________ No._____________________________ Dated___________________ Submitted this _____ day of _____________________, 2013. SIGNATURE OF BIDDER:__________________________________________ Montana Contractor Registration Number______________________________ If an individual:_____________________________________________ BID FORM 5 doing business as_____________________________________________ If a Partnership: by ________________________________________________ Partner _____________________________________________ If a Corporation:_____________________________________________ (a) ____________________________________________ by ____________________________________________ (Seal & Title___________________________________________ Attest) Business Address of Bidder: __________________________________ ____________________________________________________________ If Bidder is a joint venture, other party must sign below: Montana License Number and Class______________________________ If an Individual:_______________________________________ doing business as _________________________________________________. If a Partnership: __________________________________________ by ________________________________Partner __________________________________________ If a Corporation:____________________________________________ (a)______________________________Corporation by _________________________________________ (Seal & Title________________________________________ Attest) Construction Agreement for Bogert Pool Sand Blasting, Painting and Main Drain Replacement Page 1 of 25 CONSTRUCTION AGREEMENT This Construction Agreement is made this ____ day of______, 2013, by and between the CITY OF BOZEMAN, MONTANA, a municipal self-governing Charter government organized and existing under the laws of the State of Montana, P.O. Box 1231, Bozeman, Montana 59771-1231 (“City”), and_______, a_______, of (ADDRESS), MT. (ZIP), (“Contractor”). Recitals A. The City issued a request for bids for the construction project known as Bogert Pool Sand Blasting, Painting, and Main Drain Replacement (the “Construction Project”) pursuant to the requirements of all applicable statutes, rules, regulations, and ordinances. B. The City analyzed all responses to the request received pursuant to its standard practices and the requirements of all applicable statutes, rules, regulations, and ordinances. C. The City determined the Contractor was the lowest most responsible bidder on________, 2013 and desires now to enter into this Agreement. NOW THEREFORE, in consideration of the covenants, agreements, representations, and warranties contained herein, the parties agree as follows: Agreement 1. Work to be Performed: a. A description of the Construction Project and Contractor’s duties is set forth in the Invitation to Bid, Instruction to Bidders, Bid Specifications and this Agreement which are attached hereto and incorporated herein by this reference, and the specifications provided by the City as included in the Scope of Work as attached herein as Exhibit A. b. Prior to the commencement of any work on the Construction Project, Contractor’s representatives and City’s representatives shall hold a meeting to establish a working understanding among the parties as to the scope of the Construction Project and duties of the Contractor. At this meeting, Contractor and City shall resolve any outstanding issues related to the Specifications and Scope of Work. If the parties are unable to resolve these issues and the City fails, refuses, or is unable to approve the same, no work shall commence on the Construction Project until such issues are resolved and the City approves the changes to the Specifications and Scope of Work. c. Except as provided elsewhere in this Agreement, Contractor shall furnish all the labor, materials, equipment, tools, and services necessary to perform and complete the Construction Project. Construction Agreement for Bogert Pool Sand Blasting, Painting and Main Drain Replacement Page 2 of 25 d. During work on the Construction Project, and as part of the final completion of the Construction Project, Contractor shall clean up the site of the Construction Project, including the removal and satisfactory disposal of all waste, garbage, excess materials, equipment, temporary buildings, the removal or grading of all embankments made for construction purposes, the filling in of all excavations, and the performance of any other work necessary to restore the site to at least as good order and condition as at the commencement of the Construction Project. 2. City-Supplied Materials: There will be no City supplied materials for this Construction Project. 3. Time of Performance: a. Contractor shall begin the Construction Project in the spring of 2014, after receiving a notice to proceed from City and the weather has provided the proper environmental conditions as required by the paint manufacturer. The contractor shall have all work completed within 30 days after beginning. The Contractor shall comply with the Construction Schedule, as shown in Exhibit B. Time is of the essence of completion of all work and each phase of the Construction Project. b. The Construction Schedule is subject to the City’s approval. Contractor’s construction plan, methods of operation, materials used, and individuals and subcontractors employed (collectively “Contractor’s Resources”) are subject to the City’s approval at all times during the term of this Agreement, and must be such as to ensure the completion of the work in compliance with the deadlines set in the Construction Schedule during the term of this Agreement. In the event the City determines the Contractor’s Resources are inadequate to meet the approved Construction Schedule, the City may order the Contractor to accelerate its performance to give reasonable assurances of timely completion and quality results. Acceleration under this section shall not be deemed a Change Order as defined in Section 5b below and the Contractor shall receive no equitable adjustment for such acceleration. Nothing in this section shall be interpreted to relieve the Contractor of its duties and responsibilities to plan for and complete the Construction Project in a timely manner according to the Construction Schedule. 4. Liquidated Damages: If the Construction Project is not completed within the time provided by this Agreement, the City may deduct for each day the Construction Project remains uncompleted the sum of Five Hundred Dollars ($500.00) from the compensation hereinafter specified and retain that sum as payment for liquidated damages sustained by reason of the Contractor’s failure to complete the Construction Project on time. 5. Compensation: a. City shall pay to Contractor, and Contractor shall accept as full payment for the performance of this Agreement and the Construction Project, the amount of ___________Dollars ($______) referred to as the Total Compensation, as paid in accordance with Exhibit C, Compensation Schedule, attached hereto. Construction Agreement for Bogert Pool Sand Blasting, Painting and Main Drain Replacement Page 3 of 25 b. If work not included within the original Specifications and Scope of Work documents is requested by City, such additional work and the related compensation shall be agreed to in writing by both parties prior to commencement of the additional work and shall be subject to a “Change Order” pursuant to the Change of Work Specifications set forth in Exhibit D. c. Monthly progress payments and final payment will be made only in accordance with the terms of a completed Compensation Schedule to be approved by the City’s Representative. All invoices must be submitted to the City’s Representative. d. City shall retain five percent (5%) of the total amount of Total Compensation to be paid to the Contractor to ensure compliance with the terms and conditions of this Agreement and the timely completion of the Construction Project and any and all “punch list” items (“Retainage Amount”). The Retainage Amount shall be paid to Contractor thirty (30) days after the City’s final acceptance of the portion of work for which a separate price is stated in the specifications for the Construction Project. e. Upon acceptance of final payment and for other good and valuable consideration, Contractor shall and hereby does release and forever discharge City, its officers, agents, and employees of and from any and all claims, demands, actions, causes of action, obligations, and liabilities of every kind and character whatsoever, in law and in equity, whether now known or in the future discovered, arising from or related to this Agreement or the Construction Project that Contractor may have or assert against City, its officers, agents, and employees. 6. Inspection and Testing: a. City has the right to inspect and test any and all work performed by Contractor or any of its subcontractors on the Construction Project. Contractor shall allow City and its agents access to the Construction Project at all times and shall provide every reasonable facility for the purpose of such inspection and testing, including temporarily discontinuing portions of the work or uncovering or taking down portions of the finished work. Any inspection and testing performed by the City and its agents is for the sole benefit of the City and shall not relieve the Contractor of its duty, responsibility, and obligation to ensure that the work strictly complies with the terms and conditions of this Agreement and all applicable laws including building and safety codes. City’s inspection and testing shall not be deemed or considered acceptance by the City of any portion of the Construction Project. City’s inspection and testing shall not serve to nullify, amend, or waive any warranties provided by the Contractor under this Agreement. b. Contractor shall, without charge, replace any material or correct any work found by the City or its agents to be defective or otherwise not in compliance with the terms and conditions of this Agreement. In the event Contractor fails to replace or correct any defective work or materials after reasonable written notice by the City to do Construction Agreement for Bogert Pool Sand Blasting, Painting and Main Drain Replacement Page 4 of 25 so, the City may take such corrective action, either with its own materials and employees or by retaining any third party to do so, and deduct the cost and expense of such corrective action from the Contractor’s compensation. 7. Partial Utilization of Construction Project: City shall have the right to use or occupy any portion of the Construction Project that City and Contractor mutually agree is substantially completed and constitutes a separately functioning and usable part of the Construction Project for its intended purpose without significant interference with Contractor’s performance of the remaining portions of the Construction Project. In the event City takes possession of any portion of the Construction Project, such possession shall not be deemed an acceptance of the Construction Project, in whole or in part. Contractor shall still be required to conduct any final testing of the portions in the possession of the City. City’s use of any portion of the Construction Project shall not be grounds for extensions of any construction deadlines or a change in the Contractor’s compensation. Contractor’s warranties shall run from the completion of the total Construction Project and not from the date the City may take possession of selected portions of the Construction Project. 8. Related Work at the Site: Nothing in this Agreement shall prevent or preclude City, through its own employees or by contract with any third party, from performing other work related to the Construction Project at the construction site; provided such related work is not otherwise addressed in this Agreement and provided such related work does not otherwise interfere with Contractor’s performance of this Agreement or the completion of the Construction Project. Contractor shall afford any City employee, agent or representative, or any third party under contract with the City to perform the related work, proper and safe access to the site of the Construction Project, a reasonable opportunity for the introduction and storage of materials and equipment, the opportunity to perform the related work, and shall properly coordinate the Contractor’s work on the Construction Project with the related work. 9. Contractor’s Warranties: Contractor represents and warrants as follows: a. Unless otherwise specified by the terms of this Agreement, all materials and equipment used by Contractor on the Construction Project shall be new and where not otherwise specified, of the most suitable grade for their intended uses. b. All workmanship and materials shall be of a kind and nature acceptable to the City. c. All equipment, materials, and labor provided to, on, or for the Construction Project must be free of defects and nonconformities in design, materials, and workmanship. d. Contractor and its sureties are liable for the satisfaction and full performance of all warranties. e. Contractor shall give its personal attention to the faithful prosecution of the completion of the Construction Project and Contractor, or its duly authorized Construction Agreement for Bogert Pool Sand Blasting, Painting and Main Drain Replacement Page 5 of 25 representative assigned to serve as the Construction Project Manager, shall be personally present at the site of the Construction Project during working hours for the term of this Agreement until the completion of the Construction Project. f. Contractor shall have a copy of this Agreement including the Scope of Work on the site of the Construction Project at all times. g. Contractor has examined all available records and made field examinations of the site of the Construction Project. Contractor has knowledge of the field conditions to be encountered during the Construction Project. Contractor has knowledge of the types and character of equipment necessary for the work, the types of materials needed and the sources of such materials, and the condition of the local labor market. h. Contractor is responsible for the safety of the work and shall maintain all lights, guards, signs, temporary passages, or other protections necessary for that purpose at all times. i. All work must be performed at Contractor’s risk, and Contractor shall promptly repair or replace all damage and loss to City property at its sole cost and expense regardless of the reason or cause of the damage or loss; provided, however, should the damage or loss be caused by an intentional or negligent act of the City, the risk of such loss shall be placed on the City. j. Contractor is responsible for any loss or damage to materials, tools, or other articles used or held for use in the completion of performance of the Construction Project. k. Contractor’s performance must be without damage or disruption to any other work or property of the City or of others and without interference with the operation of existing machinery or equipment. l. Title to all work, materials, and equipment covered by any payment of Contractor’s compensation by City, whether directly incorporated into the Construction Project or not, passes to City at the time of payment, free and clear of all liens and encumbrances. m. Contractor represents that the Contractor has reviewed and understands the Specifications and the Scope of Work, has visited the site of the Construction Project and is familiar with local conditions under which the Construction Project is to be performed, has correlated personal observations with the requirements of the Specification and the Scope of Work, and has notified the City’s Representative of and obtained clarification of any discrepancies which have become apparent prior to commencement of activities on the Construction Project. Construction Agreement for Bogert Pool Sand Blasting, Painting and Main Drain Replacement Page 6 of 25 n. The Contractor further warrants that the work performed by the Contractor and its sub-contractors will conform to the requirements of the Specification and the Scope of Work and will be free from defects. Work, materials, or equipment not conforming to these requirements may be considered defective. The Contractor’s warranty excludes remedy for damage or defect caused by abuse, alterations to the work not executed by the Contractor, improper or insufficient maintenance, improper operation, or normal wear and tear and normal usage. If required by the City’s Representative, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment 10. Delays and Extensions of Time: If Contractor’s performance of this Agreement is prevented or delayed by any unforeseen cause beyond the control of the Contractor, including acts or omissions of the City, Contractor shall, within ten (10) days of the commencement of any such delay, give the City written notice thereof. Further, Contractor shall, within ten (10) days of the termination of such delay, give the City written notice of the total actual duration of the delay. If the City is provided with these required notices and if the City, in its sole discretion, determines that the cause of the delay was not foreseeable, was beyond the control of the Contractor, and was not a result of the fault or negligence of the Contractor, then the City will determine the total duration of the delay and extend the time for performance of the Agreement accordingly. Unless the delay is caused by the intentional interference of the City with the Contractor’s performance, Contractor shall make no claim for damages or any other claim other than for an extension of time as herein provided by reason of any delays. 11. Suspension: a. The City may, by written notice to the Contractor and at its convenience for any reason, suspend the performance of all or any portion of the work to be performed on the Construction Project (“Notice of Suspension”). The Notice of Suspension shall set forth the time of suspension, if then known to the City. During the period of suspension, Contractor shall use its best efforts to minimize costs associated with the suspension. b. Upon Contractor’s receipt of any Notice of Suspension, unless the notice requires otherwise, Contractor shall: (1) immediately discontinue work on the date and to the extent specified in the Notice of Suspension; (2) place no further orders or subcontracts for materials, services, or equipment; (3) promptly make every reasonable effort to obtain suspension upon terms satisfactory to City of all orders, subcontracts, and rental agreements to the extent that they relate to the performance of the work suspended; and (4) continue to protect and maintain the Project, including those portions on which work has been suspended. c. As compensation for the suspended work, Contractor will be reimbursed for the following costs, reasonably incurred, without duplication of any item, and to the extent that such costs directly resulted from the suspension: (1) a standby charge paid during the period of suspension which will be sufficient to compensate Contractor for keeping, to the extent required in the Notice of Suspension, Contractor’s organization and equipment committed to the Project in standby status; (2) all reasonably incurred costs Construction Agreement for Bogert Pool Sand Blasting, Painting and Main Drain Replacement Page 7 of 25 for the demobilization of Contractor’s and subcontractor’s crews and equipment; (3) an equitable amount to reimburse Contractor for the cost to protect and maintain the Project during the period of suspension; and (4) an equitable adjustment in the cost of performing the remaining portion of the work post-suspension if, as a direct result of the suspension, the cost to Contractor of subsequently performing the remaining work on the Construction Project has increased or decreased. d. Upon receipt of written notice by the City to resume the suspended work (“Notice to Resume Work”), Contractor shall immediately resume performance of the suspended work as to the extent required in the Notice to Resume Work. Any claim by Contractor for time or compensation described in Section 11(c) shall be made within fifteen (15) days after receipt of the Notice to Resume Work and Contractor shall submit a revised Construction Schedule for the City’s review and approval. Contractor’s failure to timely make such a claim shall result in a waiver of the claim. e. No compensation described in Section 11(c) shall be paid and no extension of time to complete the Construction Project shall be granted if the suspension results from Contractor’s non-compliance with or breach of the terms or requirements of this Agreement. 12. Termination for Contractor’s Fault: a. If Contractor refuses or fails to timely do the work, or any part thereof, or fails to perform any of its obligations under this Agreement, or otherwise breaches any terms or conditions of this Agreement, the City may, by written notice, terminate this Agreement and the Contractor’s right to proceed with all or any part of the Construction Project (“Termination Notice Due to Contractor’s Fault”). The City may then take over the Construction Project and complete it, either with its own resources or by re-letting the contract to any other third party, and may immediately take possession of and use such materials, appliances, tools, and equipment as may be on the site and which may be necessary for the completion of the Construction Project. b. In the event of a termination pursuant to this Section 12, Contractor shall be entitled to payment only for those services Contractor actually rendered. In the case of a lump sum or unit price contract, Contractor shall not be entitled to any further payment until the Construction Project has been completed. Upon completion of the Construction Project, if the unpaid balance of the Contractor’s compensation exceeds the cost to the City of completing the work, including all costs paid to any subcontractors or third parties retained by the City to complete the Construction Project and all administrative costs resulting from the termination (“City’s Cost for Completion”), such excess shall be paid to the Contractor. If the City’s Cost for Completion exceeds the unpaid balance of the Contractor’s compensation, then Contractor and its sureties shall be liable for and shall pay the difference, plus interest at the rate applicable to court judgments, to the City. c. Any termination provided for by this Section 12 shall be in addition to any other remedies to which the City may be entitled under the law or at equity. Construction Agreement for Bogert Pool Sand Blasting, Painting and Main Drain Replacement Page 8 of 25 d. In the event of termination under this Section 12, Contractor shall, under no circumstances, be 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. Termination for City’s Convenience: a. Should conditions arise which, in the sole opinion and discretion of the City, make it advisable to the City to cease work on the Construction Project, City may terminate this Agreement by written notice to Contractor (“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 Contractor. b. Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise directed in the Notice, the Contractor shall immediately cease work on the Construction Project, discontinue placing orders for materials, supplies, and equipment for the Construction Project, and make every reasonable effort to cancel all existing orders or contracts upon terms satisfactory to the City. Contractor shall do only such work as may be necessary to preserve, protect, and maintain work already completed, in progress, or in transit to the construction site. c. In the event of a termination pursuant to this Section 13, Contractor is entitled to payment only for those services Contractor actually rendered and materials actually purchased or which Contractor has made obligations to purchase on or before the receipt of the Notice of Termination for City’s Convenience, and reasonably incurred costs for demobilization of Contractor’s and any subcontractor’s crews. It is agreed that any materials that City is obligated to purchase from Contractor will remain the City’s sole property. d. The compensation described in Section 13(c) is the sole compensation due to Contractor for its performance of this Agreement. Contractor shall, under no circumstances, be 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. 14. Limitation on Contractor’s Damages; Time for Asserting Claim: a. In the event of a claim for damages by Contractor under this Agreement, Contractor’s damages shall be limited to contract damages and Contractor 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. Construction Agreement for Bogert Pool Sand Blasting, Painting and Main Drain Replacement Page 9 of 25 b. In the event Contractor wants to assert a claim for damages of any kind or nature, Contractor 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 Contractor fails to provide such notice, Contractor shall waive all rights to assert such claim. 15. Representatives: a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be James Goehrung (Facilities Superintendant) or such other individual as City shall designate in writing which may include Dan McCarthy (Aquatics Manager). Whenever approval or authorization from or communication or submission to City is required by this Agreement, such communication or submission shall be directed to James Goehrung 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. Contractor’s Representative: The Contractor’s Representative for the purpose of this Agreement shall be __________ or such other individual as Contractor shall designate in writing. Whenever direction to or communication with Contractor is required by this Agreement, such direction or communication shall be directed to Contractor’s Representative; provided, however, that in exigent circumstances when Contractor’s Representative is not available, City may direct its direction or communication to other designated Contractor personnel or agents. 16. Locating Underground Facilities: Contractor shall be responsible for obtaining and determining the location of any underground facilities, including but not limited to, the location of any pipelines or utility supply, delivery, or service lines in accordance with the provisions of §69-4-501, et seq., MCA. Contractor shall make every effort to avoid damage to underground facilities and shall be solely responsible for any damage that may occur. If City personnel assume responsibility for locating any underground facilities, this fact shall be noted in writing prior to commencement of such location work. 17. Permits: Contractor shall provide all notices, comply with all applicable laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and inspections from applicable governmental authorities, pay all fees and charges in connection therewith, and perform all surveys and locations necessary for the timely completion of the Construction Project. 18. Ownership of Documents; Indemnification: All plans, designs, drawings, specifications, documents, sample results and data, in whatever medium or format, originated or prepared by or for Contractor in contemplation of, or in the course of, or as a result of this Construction Agreement for Bogert Pool Sand Blasting, Painting and Main Drain Replacement Page 10 of 25 Agreement or work on the Construction Project, shall be promptly furnished to the City (“City Documents and Information”). All City Documents and Information shall be the exclusive property of the City and shall be deemed to be works-for-hire. Contractor hereby assigns all right, title, and interest in and to the City Documents and Information, including but not limited to, all copyright and patent rights in and to the City Documents and Information. Neither party grants to the other any express or implied licenses under any patents, copyrights, trademarks, or other intellectual property rights, except to the extent necessary to complete its obligations to the other under this Agreement. 19. Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non-discrimination, affirmative action, and utilization of minority and small business statutes and regulations. 20. Non-discrimination: The Contractor shall have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor shall 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 Contractor 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 Contractor shall require these nondiscrimination terms of its sub-contractors providing services under this agreement. 21. Intoxicants; DOT Drug and Alcohol Regulations: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, upon the site of the Construction Project. Contractor acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. 22. Labor Relations: a. Contractor shall post a legible statement of all wages and fringe benefits to be paid to the Contractor’s employees and the frequency of such payments (i.e., hourly wage employees shall be paid weekly). Such posting shall be made in a prominent and accessible location at the site of the Construction Project and shall be made no later than the first day of work. Such posting shall be removed only upon the final completion of the Construction Project and the termination of this Agreement. Construction Agreement for Bogert Pool Sand Blasting, Painting and Main Drain Replacement Page 11 of 25 b. In performing the terms and conditions of this Agreement and the work on the Construction Project, Contractor shall give preference to the employment of bona fide residents of Montana, as required by §18-2-403, MCA, and as such, term is defined by §18-2-401(1), MCA. When making assignments of work, Contractor shall use workers both skilled in their trade and specialized in their field of work for all work to which they are assigned. c. Pursuant to §§18-2-403 and 18-2-422, MCA, Contractor shall pay wages, benefits, and expenses as set forth in the Montana Prevailing Wage Rage for Building Construction Services, effective February 1, 2013 and applicable to Gallatin County, Montana which schedule is incorporated herein. Contractor shall pay all hourly wage employees on a weekly basis. Violation of the requirements set forth in the above State of Montana schedule of prevailing wage rates may subject the Contractor to the penalties set forth in §18-2-407, MCA. Contractor shall maintain payroll records and provide certified copies to the City. Contractor shall maintain such payroll records during the term of this Agreement, the course of the work on the Construction Project, and for a period of three (3) years following the date of final completion of the Construction Project and termination of this Agreement. d. In the event that, during the term of this Agreement and throughout the course of Contractor’s performance of the Construction Project, any labor problems or disputes of any type arise or materialize which in turn cause any work on the Construction Project to cease for any period of time, Contractor specifically agrees to take immediate steps, at its own expense and without expectation of reimbursement from City, to alleviate or resolve all such labor problems or disputes. The specific steps Contractor shall take to resume work on the Construction Project shall be left to the discretion of Contractor; provided, however, that Contractor shall bear all costs of any related legal action. Contractor shall provide immediate relief to the City so as to permit the work on the Construction Project to resume and be completed within the time frames set forth in the Construction Schedule at no additional cost to City. e. Contractor shall indemnify, defend, and hold the City harmless from any and all claims, demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in connection with any labor problems or disputes or any delays or stoppages of work associated with such problems or disputes. 23. Subcontractors: a. Contractor may employ subcontractors for any work on the Construction Project. Contractor shall provide City with a list of all subcontractors employed. b. Contractor remains fully responsible for the acts and omissions of any subcontractor, just as Contractor is for its own acts and omissions, and Contractor shall remain fully responsible and liable for the timely completion of the Construction Project. Construction Agreement for Bogert Pool Sand Blasting, Painting and Main Drain Replacement Page 12 of 25 c. Contractor is solely liable for any and all payments to subcontractors. Contractor shall hold all payments received from the City in trust for the benefit of subcontractors, and all such payments shall be used to satisfy obligations of the Construction Project before being used for any other purpose. Contractor shall make any payments due to any subcontractor within seven (7) days of Contractor’s receipt of payment, including a proportional part of the retainage Contractor has received from the City. In the event of a dispute regarding any subcontractor’s invoice, Contractor shall promptly pay the undisputed amount to the subcontractor and notify the subcontractor in writing of the amount in dispute and the reasons for the dispute. Any withholding of payment must comply with the requirements of §28-2-2103, MCA. In the event Contractor is unwilling or unable to make timely and proper payment to any subcontractor, City may elect to withhold any payment otherwise due to Contractor and upon seven (7) days’ written notice to Contractor, may pay subcontractor by direct or joint payment. 24. Indebtedness and Liens: Before City may make any final payment to Contractor, Contractor shall furnish City with satisfactory proof that there are no outstanding debts or liens in connection with the Construction Project. If the Contractor allows any indebtedness to accrue to subcontractors or others during the progress of the work, and fails to pay or discharge the same within five (5) days after demand, then City may either withhold any money due to Contractor until such indebtedness is paid or apply the same towards the discharge of the indebtedness. If any lien or claim is filed or made by any subcontractor, material supplier, or any other person, the Contractor shall immediately notify the City and shall cause the same to be discharged of record within thirty (30) days after its filing. 25. Hazard Communication: Contractor shall comply with all hazard communication requirements dictated by the Environmental Protection Agency, the Montana Department of Agriculture, OSHA, Hazard Communications Standard, 29 CFR 1910.1200, and applicable City ordinances. Contractor shall supply a chemical list, the associated material safety data sheets (MSDS), and other pertinent health exposure data for chemicals that the Contractor’s, subcontractor’s or the City’s employees may be exposed to while working on City property during the course of the Construction Project. One copy of this documentation must be delivered to City to the attention of the City’s Representative. This documentation must be delivered before work involving these chemicals may commence. 26. Accounts and Records: During the term of this Agreement and for two (2) years following the City’s final acceptance of the Construction Project, Contractor shall maintain accounts and records related to the Construction Project. Upon reasonable notice, City shall have the right to inspect all such accounts and records, including but not limited to, Contractor’s records, books, correspondence, instructions, drawings, specifications, field and site notes, receipts, invoices, bills, contracts, or other documents relating to the Construction Project. 27. Indemnification; Insurance; Bonds: a. To the fullest extent permitted by law, Contractor shall release, and shall protect, defend, indemnify, and hold harmless the City, its agents, representatives, Construction Agreement for Bogert Pool Sand Blasting, Painting and Main Drain Replacement Page 13 of 25 employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of and expert witness and consultants), losses, expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional misconduct of the Contractor; (ii) any negligent, reckless, or intentional misconduct of any of the Contractor’s subcontractors or suppliers; or (iii) the negligent, reckless, or intentional misconduct of any other third party. Such obligation shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist as to an indemnitee described in this Section. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the indemnitee(s) which would otherwise exist as to such indemnitee(s). Contractor’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. Should any indemnitee described herein be required to bring an action against the Contractor to assert its right to defense or indemnification under this Agreement or under the Contractor’s applicable insurance policies required below the indemnitee 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 Contractor was obligated to defend the claim(s) or was obligated to indemnify the indemnitee for a claim(s) or any portion(s) thereof. In the event of an action filed against City resulting from the City’s performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. These obligations shall survive termination of this Agreement and completion of the Construction Project. b. In addition to and independent from the above, during the life of this Agreement and for a minimum of one (1) year following the date of expiration of Contractor’s warranties as provided Section 9 of this Agreement, Contractor shall at Contractor’s expense maintain those insurances as may be required by City as set forth in Exhibit E through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the Contractor in subsection (a) of this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Contractor in subsection (a) of this Section. Construction Agreement for Bogert Pool Sand Blasting, Painting and Main Drain Replacement Page 14 of 25 Within ten (10) days following execution of this Agreement, Contractor shall provide City with proof of such insurance in the form of a certificate of insurance indicating that such insurance is in full force and effect and shall provide such additional proof including copies of policies and applicable endorsements when requested by City thereafter during the term of the Construction Project. Contractor shall notify City sixty (60) days prior to the expiration of any such required insurance coverage and shall ensure such required insurance coverage is timely renewed so that there is no lapse in coverage during the time such insurance must remain in place. Contractor shall notify City within two (2) business days of Contractor’s receipt of notice that any required insurance coverage will be terminated or Contractor’s decision to terminate any required insurance coverage for any reason. The insurance and required endorsements must be in a form suitable to City. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. For liabilities assumed hereunder, 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. c. Contractor shall maintain those security guarantees set forth on the attached Exhibit F, Required Bonds. 28. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. Contractor understands that all contractors or subcontractors working on a publicly funded project are required to pay or have withheld from earnings a license fee of one percent (1%) of the gross contract price if the gross contract price is Five Thousand Dollars ($5,000) or more. This license fee is paid to the Montana Department of Revenue. 29. Dispute Resolution: a. 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. b. 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. Construction Agreement for Bogert Pool Sand Blasting, Painting and Main Drain Replacement Page 15 of 25 30. Survival: Contractor’s indemnification and warranty obligations shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 31. 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. 32. Waiver: A waiver by City of any default or breach by Contractor 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. 33. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 34. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana and the parties expressly agree that venue will be in Gallatin County, Montana, and no other venue. 35. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 36. Amendments: This Agreement may not be modified, amended, or changed in any respect except by a written document signed by all parties. 37. 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. 38. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 39. Assignment: Contractor may not assign this Agreement in whole or in part without the prior written consent of the City. No assignment will relieve Contractor of its responsibility for the performance of the Agreement and the completion of the Construction Project. Contractor may not assign to any third party other than Contractor’s subcontractors on the Construction Project, the right to receive monies due from City without the prior written consent of City. 40. 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. 41. Independent Contractor: The parties agree and acknowledge that in the performance of this Agreement and the completion of the Construction Project, Contractor shall Construction Agreement for Bogert Pool Sand Blasting, Painting and Main Drain Replacement Page 16 of 25 render services as an independent contractor and not as the agent, representative, subcontractor, or employee of the City. The parties further agree that all individuals and companies retained by Contractor at all times will be considered the agents, employees, or independent contractors of Contractor and at no time will they be the employees, agents, or representatives of the City. 42. Agreement Documents: All work on the Construction Project shall be performed by Contractor in accordance with all of the terms and conditions of this Agreement and the Project Manual which are incorporated herein by this reference: Exhibit A: Scope of Work Exhibit B: Construction Schedule Exhibit C: Compensation Schedule Exhibit D: Change of Work Specifications Exhibit E: Required Insurance Coverage Exhibit F: Required Bonds 43. 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. IN WITNESS WHEREOF, Contractor and City have caused this Agreement to be executed, effective on the date written above, and intend to be legally bound thereby. CITY OF BOZEMAN, MONTANA ____________, CONTRACTOR By: _______________________________ By: Chris A. Kukulski, City Manager Print Name: Title: APPROVED AS TO FORM (§18-2-406, MCA): By: _______________________________ Greg Sullivan, City Attorney Construction Agreement for Bogert Pool Sand Blasting, Painting and Main Drain Replacement Page 17 of 25 Exhibit A Scope of Work 1. For replacement of the main pool drain, all work as shown on the drawings, sheet P-1 through P-3, prepared by Morrison-Maierle, entitled City of Bozeman Bogert Pool Main Drain Replacement. 2. For sandblasting and painting the interior pool surface, the Contractor shall take all steps necessary to create a pool surface that complies with Admin. R. Mont. Sect. 37.115.504 (2013). The pool surface includes all interior surfaces below deck level including the gutter rim and all other interior surfaces. The Contractor shall take all steps necessary to protect all inlets and drains from damage. The surface shall be constructed of materials that are nontoxic to humans and the environment, are impervious and enduring, will provide a smooth and easily cleanable surface without cracks or open joints (excluding structural joints) and which is free of any slip, trip, or other injury hazard. In addition, the surface must be slip-resistant and shall not cause injury to feet during normal use. Moreover, the colors, patterns, or finishes of the pool interior shall not obscure objects or surfaces within the pool. The walls and floor shall be white or light pastel in color. Earth floors are not permitted for pools, spas, or other water features. To complete the above, the Contractor shall: (i) sandblast all interior surfaces of the pool using techniques and equipment customary for the work; (ii) prepare the surface for painting by, at a minimum, triple rinsing the pool and using an acid etching technique; and (iii) paint the interior of Bogert Pool with Paralon 2 rubber chlorinated based paint or similar. Work shall stop immediately if excess damage to pool walls is caused by the sandblasting. Contractor and City Representatives will develop and agree on a scope of work and compensation schedule to complete repairs. 3. The Gallatin City-County Health Department (Health Department) shall inspect the final work of the Contractor and approve the completed work. Should the Health Department determine any work is deficient or does not comply with applicable rules or laws the Contractor shall correct such deficiencies. Construction Agreement for Bogert Pool Sand Blasting, Painting and Main Drain Replacement Page 18 of 25 Exhibit B Construction Schedule The Construction Project shall begin in the spring of 2014 immediately after the weather has provided the proper environmental conditions as required by the paint manufacturer. The contractor shall have all work completed within 30 days after beginning. Construction Agreement for Bogert Pool Sand Blasting, Painting and Main Drain Replacement Page 19 of 25 Exhibit C Compensation Schedule Contractor shall not demand or be entitled to receive payment for any work on the Construction Project, in whole or in part, except in the manner set forth herein. Pursuant to Section 5.a, above, the City shall, upon invoice from the Contractor, make the Initial Payment. The City will not withhold a Retainage Amount from the Initial Payment; however, the amount of the Initial Payment shall be included in the Total Compensation to which the Retainage Amount applies. Monthly Progress Payments A. After the commencement of work on the Construction Project, the Contractor may request monthly progress payments by submitting an Application for Payment to the City’s Representative during each successive calendar month. The Application for Payment must be based upon the actual or estimated percentage of work completed and materials supplied on the Construction Project prior to the date of the Application and shall be filled out and signed by the Contractor shall attach all supporting documentation to the Application, including certified payroll records and receipts, to verify that the work claimed in the Application has been completed. Only one Application for Payment may be submitted within a calendar month. B. Beginning with the second Application for Payment, each Application shall also include the Contractor’s Affidavit of Payment of Debts and Claims provided by the City’s Representative and signed by the Contractor stating that all previous monthly progress payments received have been applied on account to discharge Contractor’s obligations associated with the prior Applications for Payment. C. City shall promptly review all Applications for Payment and, within twenty-one (21) days after receipt of each Application, determine whether a progress payment should be disapproved in whole or in part. An Application for Payment is considered to have been received when it is submitted to City’s Representative and is considered approved unless prior to the expiration of the 21-day period the City provides the Contractor with a written statement containing specific items that are being disapproved. A progress payment or any portion may be disapproved upon a claim of: (1) unsatisfactory job progress; (2) failure to remedy defective construction work or materials; (3) disputed work or materials; (4) failure to comply with material provisions of this Agreement, drawings, plans, specifications for the Construction Project, or other required documents, including but not limited to, payroll certifications, insurance coverage, bonding, lien releases, warranties, material certifications, and test data; (5) failure of Contractor to make timely payment for claims including, but not limited to claims for labor, equipment, materials, subcontracts, taxes, fees, professional services, rent, and royalties; (6) damages to the City; (7) the existence of reasonable evidence that the Agreement cannot be completed for the unpaid balance of the Agreement’s Compensation; and (8) Contractor’s non- compliance with applicable federal, state, and local laws, rules, and ordinances. D. The City will furnish Contractor a written statement specifying a reason for disapproval that is listed in Section C above for which approval of the Application for Payment Construction Agreement for Bogert Pool Sand Blasting, Painting and Main Drain Replacement Page 20 of 25 or a portion thereof is being withheld. If the City disapproves only a portion of an Application for Payment, the remainder of the Application for Payment is considered approved. E. If the City approves a monthly progress payment, the City shall withhold the five percent (5%) Retainage Amount from the total payment requested in the Application for Payment and may withhold an amount that is sufficient to pay the direct expenses that the City may reasonably expect will be necessary to correct any claim based on the eight (8) items set out in Section C above. City shall tender the balance of the approved monthly progress payment to Contractor within seven (7) days following the approval. F. Contractor understands that the Montana Public Contractors’ Gross Receipts Tax requires all contractors or subcontractors working on a publicly funded project to pay or have withheld from earnings one percent (1%) of the gross contract price if the public contract price, including subcontracts attached thereto, is Five Thousand Dollars ($5,000) or more. If required, the City will withhold this tax from any payment made to Contractor and will remit the amount withheld to the Montana Department of Revenue. Contractor must withhold the tax from payments made to subcontractors by Contractor. G. City’s approval of any progress payment shall not operate as City’s acceptance of any portion of the Construction Project as complete or free of defects or nonconformities, nor shall it operate as a waiver of Contractor’s obligations under the Agreement including, but not limited to, Contractor’s testing and warranty obligations. Final Payment A. Upon completion of the Construction Project, Contractor shall submit a final Application for Payment to the City’s Representative seeking payment of the remaining balance of Contractor’s compensation, including all retainage amounts. Contractor shall attach all supporting documentation and receipts to the final Application for Payment to verify that the Construction Project has been fully and finally completed in compliance with all terms and conditions of the Agreement, including complete and legally effective releases or waivers of all liens or encumbrances that have been filed against the Construction Project, and a consent from all of Contractor’s sureties to final payment. In addition, Contractor shall include an Affidavit of Payment of Debts and Claims as provided by the City’s Representative and signed by the Contractor stating that all previous monthly progress payments received have been applied on account to discharge Contractor’s obligations associated with the Construction Project and that the prior Applications for Payment and all claims asserted by any person arising from or related to the Construction Project have been settled or satisfied. In the event any claims have not been settled or satisfied, the Affidavit shall contain a complete listing of such claims, the name and address of each person making a claim, the facts and circumstances surrounding each claim, the amount of each claim, and the efforts made to date by Contractor to resolve, settle or satisfy each claim. B. City shall promptly review the final Application for Payment and, within twenty-one (21) days after receipt of the request, determine whether it should be disapproved in whole or in part. The final Application for Payment is considered to have been received when it is Construction Agreement for Bogert Pool Sand Blasting, Painting and Main Drain Replacement Page 21 of 25 submitted to City’s Representative and is considered approved unless the City’s Representative provides the Contractor with a written statement containing specific items that are being disapproved prior to the expiration of the 21-day period. A final payment or any portion may be disapproved upon a claim of: (1) unsatisfactory job progress; (2) after City’s final inspection of the Construction Project, Contractor has not completed all punch list items and failed to remedy defective construction work or materials; (3) disputed work or materials; (4) failure to comply with material provisions of this Agreement, drawings, plans, specifications for the Construction Project, or other required documents including, but not limited to, payroll certifications, insurance coverage, bonding, lien releases, warranties, material certifications, and test data; (5) failure of Contractor to make timely payment for claims including, but not limited to, claims for labor, equipment, materials, subcontracts, taxes, fees, professional services, rent, and royalties; (6) claims have been brought or liens have been filed against Contractor or the City related to the Construction Project, or any such claims have not been properly documented in Contractor’s Affidavit; (7) damage to the City; (8) Contractor has not delivered all maintenance and operating instructions, marked-up record documents, and any other documents relating to the Construction Project as required by City; and (9) the Contractor is not in compliance with applicable federal, state, and local laws, rules, and ordinances and has not remedied the noncompliance. C. The City’s Representative will furnish Contractor a written statement specifying a reason for disapproval that is listed in Section B above for which approval of the final Application for Payment or a portion thereof is being withheld. If the City disapproves only a portion of an Application for Payment, the remainder of the Application for Payment is considered approved. D. Final payment is due and payable within fourteen (14) days of the City’s Representative’s approval, but City may withhold an amount that is sufficient to pay the direct expenses that the City may reasonably expect will be necessary to correct any claim based on the nine (9) items set out in Section B above and any tax withholding required by law. Construction Agreement for Bogert Pool Sand Blasting, Painting and Main Drain Replacement Page 22 of 25 Exhibit D Change of Work Specifications A. City may, at any time or from time to time, order changes, additions, deletions, or revisions to the work on the Construction Project by submitting a written Change Order to Contractor on a form as provided by the City. Upon receipt of any Change Order, Contractor shall comply with the terms of the changed work as reflected in the Change Order. B. City and Contractor shall negotiate in good faith for an agreement as to any increase or decrease in the Contractor’s compensation that results from any Change Order. The increased or decreased Contractor’s compensation shall be set forth in the Change Order and both the City and the Contractor shall sign the Change Order as an indication of their respective acceptance of the changes and modifications to the Agreement. In the event the City and Contractor are unable to agree upon the increase or decrease in Contractor’s compensation resulting from any Change Order, such increase or decrease shall be determined as follows: 1. Increases to Contractor’s compensation shall be calculated as follows and shall be evidenced by Contractor’s submission to the City of its actual supporting documentation including time slips/cards, invoices, and receipts: a. by unit prices otherwise set forth in the Agreement or subsequently agreed upon; b. by an agreed upon lump sum; or c. by the cost of the work and an agreed upon mark-up for Contractor’s overhead and profit, with the costs of the work determined as follows: (i) Contractor’s actual, direct payroll expenses for the cost of labor. Payroll expenses shall only include actual gross wages paid, without any deductions, withholding, or overhead. The agreed upon mark-up fee shall cover Contractor’s liability insurance, workers’ compensation, and Social Security taxes applicable to said wages, Contractor’s reasonable profit, the costs for the use of small tools and equipment not otherwise classified under heavy equipment use, and Contractor’s general overhead expenses. (ii) Contractor’s actual cost of materials, including actual transportation costs, for all materials supplied by Contractor. (iii) Costs for the use of heavy equipment and the transportation of the same. Such costs shall be the actual rental fees incurred for the use of the heavy equipment and the actual costs of transporting such heavy equipment to and from the site of the Construction Project. Construction Agreement for Bogert Pool Sand Blasting, Painting and Main Drain Replacement Page 23 of 25 2. Decreases to Contractor’s compensation shall be determined by the City’s good faith estimate. If Contractor disagrees with such good faith estimate, Contractor can avail itself of the Dispute Resolution provisions set forth in the Agreement. C. Except for minor modifications in the work not involving an increase of costs or Contractor’s compensation and not inconsistent with the purposes of the work required by the Agreement, and except in an emergency situation which endangers life or property, no change to the work requirements shall be made unless pursuant to a written Change Order duly executed. D. Contractor shall not be entitled to any increase in the Contractor’s compensation or the extension of any deadlines set forth in Construction Schedule with respect to any work performed by Contractor that is not required by the terms and conditions of the Agreement and is not contained in a duly executed Change Order. Construction Agreement for Bogert Pool Sand Blasting, Painting and Main Drain Replacement Page 24 of 25 Exhibit E Required Insurance Coverage Contractor shall purchase and maintain insurance coverage as required by Section 27(b) and as set forth below. Required Insurance Coverage: 1. Commercial General Liability $1,000,000 per occurrence (bodily injury and property damage) $2,000,000 aggregate 2. Products and Completed Operations $2,000,000 3. Automobile Liability (all owned, hired, non-owned) $1,000,000 property damage/bodily injury; $2,000,000 annual aggregate - $1,000,000 Combined Single Limit 4. Workers’ Compensation Not less than statutory limits 5. Employers’ Liability $1,000,000 per occurrence; $2,000,000 annual aggregate; $1,000,000 Each Accident $1,000,000 Disease per Employee $1,000,000 Disease Policy Limit 6. Professional Liability (E&O) $1,000,000 per claim; $2,000,000 annual aggregate Commercial General Liability includes Design and Installation Errors and Omissions Liability coverage per form HS0445. 7. Contractual Liability Insurance $1,000,000 per occurrence (covering indemnity obligations) $2,000,000 aggregate Construction Agreement for Bogert Pool Sand Blasting, Painting and Main Drain Replacement Page 25 of 25 Exhibit F Required Bonds Contractor shall make, execute, purchase, maintain and deliver to City performance and payment bonds in an amount at least equal to the Contractor’s compensation under this Agreement, conditioned that the Contractor shall faithfully perform of all of Contractor’s obligations under this Agreement and pay all laborers, mechanics, subcontractors, material suppliers and all persons who supply the Contractor or Contractor’s subcontractors with provisions, provender, material, or supplies for performing work on the Construction Project. All bonds must be obtained with a surety company that is duly licensed and authorized to transact business within the state of Montana and to issue bonds for the limits so required. The surety company must have a Best’s Financial Strength Rating of A, as rated by the A. M. Best Co., or an equivalent rating from a similar rating service. All bonds must remain in effect throughout the life of this Agreement and for a minimum of one (1) year following the date of expiration of Contractor’s warranties. A certified copy of the agent’s authority to act must accompany all bonds signed by an agent. If the surety on any bond furnished by Contractor is declared bankrupt or becomes insolvent or its right to do business within the state of Montana is terminated, Contractor shall promptly notify City and shall within twenty (20) days after the event giving rise to such notification, provide another bond with another surety company, both of which shall comply with all requirements set forth herein. Bond Types and Amounts: 1. Performance Bond Equal to Contractor’s Total Compensation 2. Labor and Materials Bond Equal to Contractor’s Total Compensation NON-DISCRIMINATION AFFIRMATION FORM _________________________ [name of entity submitting] hereby affirms it will not discriminate on the basis of race, color, religion, creed, sex, age, marital status, national origin, or because of actual or perceived sexual orientation, gender identity or disability in the performance of work performed for the city of Bozeman, if a contract is awarded to it, and also recognizes the eventual contract, if awarded, will contain a provision prohibiting discrimination as described above and that this prohibition shall apply to the hiring and treatment of the _________________________ [name of entity submitting] employees and to all subcontracts it enters into in performance of the agreement with the city of Bozeman. Signature of Bidder: ______________________________ Person authorized to sign on behalf of the bidder