HomeMy WebLinkAboutAmendment #1 to PSA TDH Engineering Sports Park 4 10 141
Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Jeff Graff, Trails, Open Space and Parks Program Manager
Mitch Overton, Parks and Recreation Director
SUBJECT: Authorize City Manager to Sign Amendment to Professional Services Agreement with
TD&H Engineering Regarding the Bozeman Sports Park.
MEETING DATE: April 14, 2014
AGENDA ITEM TYPE: Consent
RECOMMENDATION: Authorize City Manager to sign amendment to Professional Services Agreement with TD&H Engineering.
SUGGESTED MOTION: I hereby move to authorize the City Manager to sign an amendment to
the Professional Services Agreement with TD&H Engineering for engineering services to conduct a water demand evaluation and soils analysis of the Bozeman Sports Park property utilizing TOPs funds not to exceed $9,999.
BACKGROUND: On February 24, 2014, the City Commission approved a motion authorizing
the City Manager to sign a Professional Services Agreement (PSA) with TD&H Engineering for engineering services to determine the cost of municipal infrastructure for the proposed Sports Park project utilizing TOPs funds not to exceed $10,000.TD&H provided City staff with a final report
titled “ Concept-Level Infrastructure Cost Estimates at Potential TOP Sports Complex” on March
6, 2014 that estimated the cost of municipal improvements for the proposed site to be $4,328,602.
On April 7, 2014 the City Commission authorized the purchase of the Sport Park property, contingent upon a water demand evaluation and soils analysis study to ensure that the water resources and soils associated with the property are sufficient for the property’s proposed uses.
UNRESOLVED ISSUES: The City cannot close on the Sports Park property until it has
determined that the water resources and soils on the property are sufficient to meet the proposed uses of the property as a Sports Complex.
2
ALTERNATIVES: As directed by the City Commission
FISCAL EFFECTS: The proposed amendment to the PSA would utilize no more than $9,999 in TOPs funding to obtain an engineering report to determine the suitability of water resources and
soils for the Sports Park property.
Attachments: Amendment #1 to Professional Services Agreement Original Professional Services Agreement with TD&H Report compiled on:4/1/14
3
Amendment No. 1 to Professional Services Agreement
For Engineering Services
THIS AGREEMENT is made as of this ____________________________, 2013, between
THE CITY OF BOZEMAN, a Municipal Corporation, P.O. Box 1230 Bozeman, Montana,
59771-1230 (OWNER) and Thomas, Dean and Hoskins (TD&H) Engineering, 234 East
Babcock , Suite 3, Bozeman, Montana (ENGINEER).
WHEREAS, the parties have entered into a Professional Services Agreement dated February 24,
2014 , herein referred to as Original Agreement for Engineering Services for concept-level cost
estimates for required public water, sewer, street, and storm infrastructure improvements adjacent
to, and in proximity of, the proposed TOP Sports Fields Complex [hereafter Site]; and
WHEREAS, Article 5, the “Additional Services” clause of the Original Agreement contained a
provision (5.1.) that ,”if OWNER wishes ENGINEER to perform any of the following Additional
Services, OWNER shall so instruct ENGINEER in writing, and ENGINEER shall perform or
obtain from others such services and will be paid therefor as provided in the Agreement, and a
provision (5.1.6.) , that allowed “Providing other services not otherwise provided for in the
Agreement, including services normally furnished by the OWNER as elsewhere herein described.
WHEREAS, the parties desire to further amend the provisions of this Agreement.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS
CONTAINED HEREIN, the parties agree as follows:
4
The conditions and provisions set forth in the attached Professional Services Agreement are hereby
incorporated in and made part of this agreement. The Scope of Services and Consulting Fees are
increased per this exhibit.
Article 1 Engineering Services
Article 1 of the original agreement is modified to include the following:
1.3 Perform sufficient pre-design engineering investigations to support development of a
Projected Annual Water Demand Evaluation for the northern portion of tract 1A on
Certificate of Survey # 2554 A (attachment “A” to original Professional Services Agreement)
for use as Sports Complex with approximately 70 acres of multi use sports fields.
• Projected irrigation rate and annual volume requirements of the sports fields complex.
• Projected annual indoor/domestic water demand for the sports fields complex.
1.4 Perform sufficient pre-design engineering investigations to support development of
concept-level report that provides a Soil Suitability Evaluation of the northern portion of tract
1A on Certificate of Survey # 2554 A (attachment “A” to original Professional Services
Agreement) for use as Sports Complex with approximately 70 acres of multi use sports fields.
• Excavate up to five test pits on site
• Log soil profiles and groundwater encountered
• Sample for physical properties of soil horizons
• Sample for nutrients, organics and salts in topsoil
• Lab testing: gradations, Atterburg limits, nutrients, organics and salts
• Perform analysis of soil classification versus standards for play fields (fraction of sand, clay, etc)
• Recommend possible amendments to soils as well as drainage, aeration and watering
strategies, with input from licensed landscape architect for proposed uses as sports field.
ARTICLE 6 - COMPENSATION FOR ENGINEERING SERVICE
Article 6 of the original agreement is modified to include the following:
•6.1.1.2 The OWNER shall pay for Basic Engineering Services an amount not to exceed
$19,999 except as provided under 6.2.1.2 and 6.2.3.
5
Except as specifically amended herein, the original agreement shall remain in full force and effect
and the Parties shall be bound by all terms and conditions therein.
IN WITNESS WHEREOF, the parties hereto do make and execute this Agreement.
CITY OF BOZEMAN TD&H Engineering
BY: __________________________________ BY:___________________________________
(City Manager)
DATE:________________________________ DATE:_________________________________
ATTEST:
BY:____________________________________
(City Clerk)
6
PROFESSIONAL SERVICES AGREEMENT
THIS IS AN AGREEMENT made as of , between THE CITY OF BOZEMAN, a Municipal Corporation, Bozeman, Montana, 59715 (OWNER) and TDH Engineering, 234 E. Babcock, Suite 3,
Bozeman , Montana, 59715 (ENGINEER). Whereas the accomplishment of the work and services described in this Agreement is essential to the
OWNER'S public works improvement program. Whereas the OWNER intends to and has selected the ENGINEER to provide necessary and professional engineering services for the project. Whereas the ENGINEER represents that it is willing and qualified to perform the professional engineering services for this project described in this Agreement.
Therefore, in consideration of the foregoing recitals and the mutual covenants and conditions contained herein, the parties agree as follows: The conditions and provisions set forth in the attached Certificate of Survey 2554 A.
ARTICLE 1 - ENGINEERING SERVICES
1.1. The detailed description of the specific project components is described as follows:
Perform sufficient pre-design engineering investigations to support development of concept-level cost estimates
for required public water, sewer, street, and storm infrastructure improvements adjacent to, and in proximity of, the proposed TOP Sports Fields Complex [hereafter site]. The site occupies an aliquot part of land being the W1/2 NW1/4 Section 3, T2S, R5E, Gallatin County, MT. A legal parcel does not presently exist, although it can be generally described as the northern 80 acres of Tract 1A, COS 2554A on file and of record with the Gallatin County Clerk and Recorder (attached Certificate of Survey 2554A). Cost estimates for public streets shall reflect all required elements for construction of bounding roadways, including required public stormwater facilities, in accordance with the adopted Greater Bozeman Area Transportation Plan (2007 Update), Unified Development Code, and City Design Standards. This shall include
construction estimates for:
- Flanders Mill Road to a full Local street standard, including provision of maintaining conveyance
capacity of Maynard Border Ditch if it resides within the existing 60’ right-of-way
- West Oak Street to ½ of a Principal Arterial street standard - Cottonwood Road to ½ of a Principal Arterial street standard - Baxter Lane to ½ of a Minor Arterial street standard
7
Cost estimates for intersection improvements shall be prepared to provide adequate traffic service to the parcel in
accordance with the Greater Bozeman Area Transportation Plan (2007 Update), and recent existing traffic studies prepared by developers of nearby subdivisions. No new traffic studies or “level of service” calculations are expected with this analysis. Cost estimates for public sewer infrastructure shall be prepared to provide sewer service to the parcel in accordance with the adopted Wastewater Facility Plan, Unified Development Code, and City Design Standards unless special provisions have been afforded the parcel through existing sewer service agreements Cost estimates for public water infrastructure shall be prepared to provide water service to the parcel in
8
accordance with the adopted Water Facility Plan, Unified Development Code, and City Design Standards. 1.2. The scope of services under this contract is set forth in this agreement and the attached EXHIBITS.
ARTICLE 2 - ENGINEER'S RESPONSIBILITIES
2.1. ENGINEER shall perform for OWNER professional engineering services in all phases of the Project to which this Agreement applies as hereinafter provided. These services will include, but not be limited to, serving as OWNER's professional engineering representative for the Project, providing professional engineering consultation and advice and furnishing customary civil and structural engineering services incidental thereto. 2.2. The ENGINEER shall furnish all labor, materials, equipment, supplies, and incidentals necessary to conduct and complete the ENGINEER'S portions of the Project and to prepare and deliver to the OWNER all data, reports, plans, specifications, and recommendations as designated herein.
2.3. The ENGINEER shall ascertain such information as may have a bearing on the work from local units of
government, public, and private organizations and shall be authorized to procure information from other authorities as to
the extent of these contacts and the results thereof.
2.4. The ENGINEER'S work shall be in accordance with the standards of sound engineering practices. 2.5. The ENGINEER shall name a Principal-In-Charge for the duration of the project. The Principal-In-Charge shall be David Crawford, PE . 2.6. The ENGINEER shall name a Project Manager who shall be the liaison between the ENGINEER and the OWNER. The Project Manager shall be (TBD) . The OWNER may name a Task
Director who would be the liaison between the ENGINEER and the OWNER during the design segment of the Project.
ARTICLE 3 - OWNER'S RESPONSIBILITIES
3.1 The OWNER shall name a Task Director who shall be the liaison between the ENGINEER and the OWNER during DESIGN segment of the Project. The Task Director designated shall be Jeff Graff. 3.2 The OWNER shall have the right of review and examination of the ENGINEER'S work at all times. 3.3 The OWNER shall make available all records (record drawings, construction records, etc.) indicating the existing
configuration of the city utilities.
ARTICLE 4 - BASIC ENGINEERING SERVICES
The ENGINEER shall render professional Engineering Services as follows:
4.1 PRE-DESIGN INVESTIGATION PHASE After written authorization to proceed, ENGINEER shall: 4.1.1 Consult with OWNER to clarify and define OWNER's requirements for the Project and review
available data.
9
4.1.2 Advise OWNER as to the necessity of OWNER's providing or obtaining from others, data or services and assist OWNER in obtaining such data or services. 4.1.3 Identify and analyze requirements of governmental authorities having jurisdiction to approve the design of the Project and participate in consultations with such authorities. 4.1.4. Provide analyses of OWNER's needs, planning surveys, site evaluations and comparative studies of
prospective sites and solutions.
4.1.5. Provide a general economic analysis of OWNER's requirements applicable to various alternatives.
4.1.6. Prepare a Report containing schematic layouts, sketches and conceptual design criteria with appropriate exhibits to indicate clearly the considerations involved (including applicable requirements of
governmental authorities having jurisdiction as aforesaid) and the alternative solutions available to OWNER and setting forth ENGINEER's findings and recommendations. This Report will be accompanied
by ENGINEER's opinion of probable costs for the Project, including the following which will be separately itemized: Construction Cost, allowance for engineering costs and contingencies, and (on the basis of
information furnished by OWNER) allowances for such other items as charges of all other professionals and consultants, for the cost of land and rights-of-way, for compensation for or damages to properties, for
interest and financing charges and for other services to be provided by others for Owner. The total of all such costs, allowance, etc. are hereinafter called "Total Project Costs". 4.1.7. Furnish 5 copies and an electronic copy of the Study and Report documents and review them in
person with OWNER.
The Pre-design Investigation Phase will be completed and submitted by March 10, 2014 following written authorization (no later than February 25, 2014) from OWNER to ENGINEER to proceed with that phase of services. There are no additional design phases, bidding , negotiation or construction phases, required under this agreement. ARTICLE 5 - ADDITIONAL SERVICES
5.1. If OWNER wishes ENGINEER to perform any of the following Additional Services, OWNER shall so instruct
ENGINEER in writing, and ENGINEER shall perform or obtain from others such services and will be paid therefor as
provided in the Agreement:
5.1.1. Legal land surveys performed to obtain data for preparing easements and rights-of-way descriptions.
5.1.2. Preparation of applications and supporting documents for governmental agencies in addition to those required under Basic Services; preparation or review of environmental studies and related services; and assistance in obtaining environmental approvals. 5.1.3. Services resulting from significant changes in the general scope, extent or character of the Project or major changes in documentation previously accepted by OWNER where changes are due to causes beyond ENGINEER's control. 5.1.4. Providing renderings or models.
5.1.5. Preparing documents for alternate bids requested by OWNER for work not executed or for out-of-
sequence work.
5.1.6. Providing other services not otherwise provided for in the Agreement, including services normally
furnished by the OWNER as elsewhere herein described. 5.1.7. Furnishing the services of independent professional associates or consultants for other than Basic Services.
ARTICLE 6 - COMPENSATION FOR ENGINEERING SERVICE
6.1 DIRECT LABOR COST PAYMENT FOR BASIC SERVICES AND EXPENSES OF ENGINEER.
Basic Engineering Services under section 4.1 shall be compensated in accordance with the following:
6.1.1 The OWNER shall pay for Basic Engineering Services an amount not to exceed $10,000 except as provided under 6.2.1.2 and 6.2.3.
6.2.1.1 Costs Compensation. Compensation for these services shall be based on the ENGINEER's Direct Labor Cost times a factor of 3.15 for services rendered which shall cover Direct Labor, Direct Labor Overhead, General & Administrative Overhead and Profit. 6.2.1.2 Notification. At any time it becomes apparent that the services rendered under this
Agreement will exceed the negotiated compensation for these services, and prior to performing services
in excess of the contract ceiling, the ENGINEER shall give OWNER written notice thereof. Promptly
thereafter OWNER and ENGINEER shall review the scope and progress of the project work.
ENGINEER shall obtain written authorization from OWNER, prior to any additional costs being incurred under paragraph 6.2.1.3. The amount and terms of any additional compensation under 6.2.1.1 or 6.2.1.3 shall be negotiated and agreed in writing pursuant to 9.16. 6.2.1.3 Costs Exceeding Estimated Compensation. When the total cost of the original scope of services exceeds the negotiated compensation for these services, the OWNER shall pay only for the direct costs incurred in excess of the estimated compensation. These costs consist of an amount equal to the ENGINEER'S Direct Labor Cost times a factor of 2.752 for services rendered which shall include Direct Labor, the federally audited payroll Direct Labor Overhead, and General &
Administrative Overhead costs, but shall not include any allowance for profit.
6.1.2. Reimbursable Expenses, as defined in section 7.4 of this Agreement, for Basic Services and Approved
Additional Services shall be paid to the ENGINEER by the OWNER in the actual amount of the costs incurred up to an amount not to exceed $ 2,000 which includes $ 0 for consultants employed by the Engineer and $ 2,000 for all other reimbursable expenses. 6.1.3. The OWNER shall pay an amount for Additional Services rendered by the ENGINEER and approved in writing by the OWNER on the basis of the ENGINEER'S Direct Labor Costs times a factor of 3.15 , or an amount otherwise negotiated at the time such services are requested and approved by the OWNER.
ARTICLE 7 - MEANING OF TERMS
7.1 AGREEMENT
As used herein the term "this Agreement" refers to the contents of this document and its Exhibits attached hereto and referred to as if they were part of one and the same document. 7.2 DIRECT LABOR COSTS
3
Direct Labor Costs used as a basis for payment mean the actual salaries and wages paid to all ENGINEER's personnel
4
engaged directly on the Project, including, but not limited to, engineers, architects, surveyors, designers, drafters, specification writers, estimators, other technical and business personnel; but does not include indirect payroll related cost s or fringe benefits. For the purposes of this Agreement the principals and employees of the ENGINEER maximum billable Direct Labor Costs are: Principal $ 53.66 /hour Project Manager $ 44.24 /hour Senior Engineer $ 35.19 /hour
Staff Engineer $ 27.31 /hour
Senior Technician $ 27.31 /hour
CADD Drafter $ 27.31 /hour
Technicians $ 21.90 /hour Clerical $ 15.88 /hour
7.3 REIMBURSABLE EXPENSES
Reimbursable Expenses mean the actual expenses incurred by ENGINEER or ENGINEER's independent professional
associates or consultants directly in connection with the Project, such as expenses for: transportation and subsistence
incidental thereto; obtaining bids or proposals from Contractor(s); subsistence and transportation of Resident Project
Representatives and their assistants; toll telephone calls and telegrams; reproduction of reports, Drawings, Specifications,
Bidding Documents and similar Project-related items; and if authorized in advance by OWNER, overtime work requiring
higher than regular rates. In addition, when compensation for Basic Services is on the basis of Direct Labor Costs method
of payment, Reimbursable Expenses will also include the amount billed to ENGINEER by special consultants employed by ENGINEER and authorized by OWNER (other than as an authorized Additional Services) and will also include expenses incurred for computer time and other specialized equipment, including an appropriate charge for previously established programs and expenses of photographic production techniques.
ARTICLE 8 - PAYMENT PROVISIONS
8.1 TIMES OF PAYMENTS. ENGINEER may submit monthly statements for Basic Services and approved Additional Services rendered and for Reimbursable Expenses incurred; however, payments shall not exceed the ceilings provided in 6.1 and 6.2. Final payment shall be made only after acceptance of the project by the OWNER. If OWNER disputes the amount of the billing, OWNER will notify the ENGINEER in writing within ten (10) calendar days of the
receipt of bill of the dispute.
8.2 REQUESTS FOR PAYMENT. Each request for payment shall include a documentation summary of the period
incremental man hours incurred, direct labor rates and billed rates, detail of reimbursable costs, total period billing, and
total cumulative billing. When requested by OWNER services for distinct project segments shall be accounted and billed separately. 8.3 PAYMENT UNDER TERMINATION. In the event of termination by the OWNER upon the completion of any phase of the Basic Services, progress payments due ENGINEER for services rendered through such phase shall constitute total payment for such services. In the event of such termination by OWNER during any phase of the Basic Services, ENGINEER also will be reimbursed for the charges of pre-approved independent professional associates and consultants employed by ENGINEER to render Basic Services, and paid for services rendered during that phase on the basis of the
5
payment provisions of the Agreement. In the event of any such termination, ENGINEER will be paid for unpaid pre - approved Additional Services and unpaid Reimbursable Expenses which are authorized under this agreement. ARTICLE 9 - GENERAL CONSIDERATIONS
9.1 TERMINATION OF AGREEMENT
9.1.1 The sole right is hereby reserved to the OWNER to terminate this Engineering Agreement for any and
all causes or for its convenience at any time upon fifteen (15) days written notice to the ENGINEER.
9.1.2 If termination for default is effected by the OWNER, an equitable adjustment in the price provided for in this Agreement shall be made, but (1) no amount shall be allowed for anticipated profit on unperformed services or other work, and (2) any payment due to the ENGINEER at the time of termination may be adjusted to cover any additional costs to the OWNER because of the ENGINEER's default. If termination for convenience is effected by the OWNER, the equitable adjustment shall include a reasonable profit, as determined by owner, for services or other work performed. The equitable adjustment for any termination shall provide for payment to the ENGINEER for services rendered and expenses incurred prior to the termination, in addition to termination
settlement costs reasonably incurred by the ENGINEER relating to commitments which had become firm prior to
the termination.
9.1.3 Upon receipt of a termination action under paragraph 9.1.2, the ENGINEER shall (1) promptly discontinue all affected work (unless the notice directs otherwise), and (2) deliver or otherwise make available to the OWNER within ten (10) days copies of all data, design drawings, specifications, reports, estimates, summaries and such other information and materials as may have been accumulated by the ENGINEER in performing this Agreement, whether completed or in process. 9.1.4 In the event this Contract is terminated prior to completion, the original copies of the ENGINEER'S data, recommendations, plans, specifications, analysis and other related documents prepared by the ENGINEER prior to said termination shall be delivered to and become the property of the OWNER.
9.1.5 Upon termination, the OWNER may take over the work and may award another party an Agreement to
complete the work under this Agreement.
9.1.6 OWNER'S right to terminate is in addition to any other remedies OWNER may have under the law. 9.2 INSPECTION AND AUDIT All books, papers, records, payrolls, vouchers and invoices relating to costs and expenditures incurred as to the performance of the services by the ENGINEER hereunder shall be made available to the OWNER, or their authorized representatives for audit and review, at the ENGINEER'S respective offices at all reasonable times during the contract period and for three years from the date of final payment.
9.3 EMPLOYMENT
The ENGINEER warrants that he has not employed or retained any company or persons, other than a bona fide employee,
working solely for the ENGINEER, to solicit to secure this contract, and that he has not paid or agreed to pay any company or person, other than bona fide employees working solely for the ENGINEER, an y fee, commission, percentage, brokerage fee, gifts or any other considerations contingent upon or resulting from the award or making of this Contract. For breach or violation of this warranty, the OWNER shall have the right to annul the Contract without liability or in its discretion to deduct from the price or consideration or otherwise recover the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee.
6
All employees of the ENGINEER or other persons while engaged in the performance of work or services required by the ENGINEER shall be considered employees of the ENGINEER only and not of the OWNER. 9.4 NONDISCRIMINATION
The ENGINEER will have a policy to provide equal employment opportunity in accordance with all applicable state and
federal anti-discrimination laws, regulations, and contracts.
The ENGINEER will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. The ENGINEER shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. The ENGINEER shall require these nondiscrimination terms of its sub-consultants providing services under this
agreement. 9.5 SUBLETTING OR ASSIGNING OF WORK
The ENGINEER shall not sublet or assign any of the work covered herein without prior written approval of the OWNER. 9.6 STANDARD OF CARE In providing services under this agreement, the ENGINEER will perform in a manner consistent with the degree of care and skill ordinarily exercised by members of the same profession currently practicing under similar circumstances. If any service should be found to be not in conformance with this standard, the ENGINEER shall, at the OWNER’s request, re -
perform the service at its own expense. Engineer shall also, at its own expense, make such changes, modifications or
additions to the project which are made necessary as a result of the initial non-performance or the re-performance of
services. The OWNER’s rights herein are in addition to any other remedies the OWNER may have under the law.
9.7 LEGAL RELATIONS:
9.7.1 The ENGINEER shall, consistent with the standard care, comply with those Federal, State, and Local laws and ordinances applicable to the work to be done. 9.7.2 The ENGINEER agrees to defend, indemnify and hold harmless the OWNER, its officers, directors, agents and employees from and against any suit, cause of action, claim, cost, expenses, obligation and liability of any character, including attorney’s fees, which is brought or asserted for any bodily injury, death, or physical
damage to property received or sustained by any person, persons, property, business or any other entity, arising
out of or resulting from, or in connection with the ENGINEER’S negligent performance of the work specified in
this agreement.
9.7.3. The ENGINEER agrees to defend, indemnify and hold harmless the OWNER, its officers, directors, agents and employees, should OWNER, its officers, directors, agents or employees be named as a defendant in
7
any action where the OWNER’S alleged liability arises from the negligent performance of the ENGINEER’S work herein described. The obligations of the ENGINEER to defend, indemnify and hold harmless the OWNER will apply to any suit, cause of action, claim, cost or obligation including, without limitation, th use alleged under the common law or pursuant to a federal or state statute or regulation including those arising in tort, trespass, nuisance, and strict liability. 9.7.4 In the event the OWNER is found proportionately responsible for any damages ultimately awarded to a
plaintiff or plaintiffs in any lawsuit, the ENGINEER will be responsible for only those damages, costs, or
liabilities as are attributable to the ENGINEER’S percent of fault as compared with 100% of the fault giving rise
to the damages. Should the OWNER be found responsible for negligence by its own officers, directors, agents or
employees, then in that event the OWNER agrees to reimburse the ENGINEER for the reasonable attorney’s fees and costs incurred in any defense of the OWNER in an amount proportional to the fault attributed to the OWNER. The indemnity required herein shall not be limited by reason of the specification of any particular insurance coverage in this Agreement. 9.7.5 Should either OWNER or ENGINEER be held responsible, for any damages, costs or liabilities resulting from intentional misconduct by any officer, director, agent or employee in connection with the work specified in this Agreement, then in that event, that party shall defend, indemnify and hold harmless the oth er as to any damages, costs or liabilities that result from or arise out of that intentional misconduct, including reasonable attorney’s fees and costs which shall include costs and salary of the city attorney or other in -house
counsel. Further, notwithstanding the obligations set forth in paragraphs 9.7.2 and 9.7.3 above, the ENGINEER
agrees to defend OWNER where the OWNER’S alleged liability arises from intentional misconduct by the
ENGINEER. Should the OWNER be found responsible for intentional misconduct by its own officer, director,
agent or employee, then OWNER agrees to reimburse ENGINEER for the reasonable attorney’s fees and costs
incurred in any defense of the OWNER.
9.7.6 The ENGINEER shall perform this agreement as an independent contractor, and as such, is responsible to the OWNER only as to the results to be obtained in the work herein specified, and to the extent that the work shall be done in accordance with the terms, plans and specifications. The ENGINEER shall have and maintain complete control over all of its employees, subcontractors, agents and operations, being responsible for any required payroll deductions and providing required benefits, such as, but not limited to worker’s compensation with statutory limits, and unemployment insurance. 9.8 INSURANCE
The ENGINEER shall secure and furnish to the OWNER certificate of insurance, therein, naming the OWNER as an
additional insured, to include thirty (30) days notice of cancellation or non-renewal.
Without limiting any of ENGINEER's obligations hereunder, ENGINEER shall secure and maintain, until the work is completed and accepted by the OWNER, insurance coverage naming the OWNER as additional insured with minimum insurance coverage as follows:
8
Type of Coverage Limits
Employers' Liability: $ 100,000. per accident
General Liability:
Bodily Injury & Property Damage
Single and combined $ 1,000,000. per accident
General Aggregate: $ 2,000,000.
Excess Liability Coverage (umbrella) $1,000,000. each occurrence Automobile: Bodily Injury covering all $ 1,000,000 each person automobiles, trucks, tractors, trailers, or $ 1,000,000 each occurrence other automotive equip-
ment whether owned or
rented by Engineer or
owned by employees of
Engineer.
Property Damage covering $ 100,000 each occurrence all automobiles, trucks, tractors, trailers or other automotive equipment whether owned or rented by Engineer or owned by employees of Engineer
OR
Bodily Injury & Property $1,000,000 each occurrence
Damage Single and combined
In addition to the above insurance coverage, the ENGINEER shall secure and maintain, until the work is completed and accepted by the OWNER, and without naming OWNER as an additional insured, professional errors and omissions coverage as follows: Professional Errors & Omissions: $ 1,000,000 per claim and
aggregate each occurrence
9.9 ENDORSEMENT
The ENGINEER shall place his endorsement on all drawings and other data furnished by him.
9
9.10 OWNERSHIP OF DOCUMENTS
The parties admit and agree the documents produced under this agreement are not intended or represented to be suitable for reuse by OWNER or any other individual on any other project. Any reuse without written verification or adaptation by ENGINEER will be at OWNER’s sole risk and without liability or legal exposure to ENGINEER, or to ENGINEER’s independent professional associates or consultants. Files in electronic media format of text, data, graphics, or of other types that are furnished by ENGINEER to OWNER are only for convenience of owner. Any conclusion or information
obtained or derived from such electronic files will be at the user's sole risk.
9.11 PUBLIC INFORMATION
The ENGINEER shall not issue any statements, releases or information for public dissemination without prior approval of the OWNER. 9.12 PROPRIETARY RIGHTS If patentable discoveries or inventions should result from work required herein, all rights accruing from such discoveries or inventions shall be joint property of the ENGINEER and the OWNER. Provided that the OWNER, state agencies or political subdivisions and the United States Government shall have the irrevocable, nonexclusive, nontransferable and royalty-free license to use each invention in the manufacture, use and disposition, according to law, of any article or
material, and in the use of any method that may be developed as part of the work described and contemplated herein.
9.13 RECORDS
The ENGINEER shall maintain accounting records and other evidence pertaining to the cost incurred and to make the records available at all reasonable times during the Contract term and for one (1) year from the date of final payment. Such accounting records and other evidence pertaining to the cost incurred will be made available for inspections by OWNER. 9.14 SUCCESSORS IN INTEREST
The covenants, agreements and all statements in this Contract apply to and shall be binding on the heirs, personal
representatives, successors and assigns of the respective parties.
10
9.15 ATTORNEY'S FEES AND COSTS
That in the event it becomes necessary for either Party of this Contract to retain an attorney to enforce any of the terms or conditions of this Contract or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in -house counsel to include City Attorney.
9.16 MODIFICATIONS AND AMENDMENTS
That any amendment or modification of this Contract or any provisions herein shall be made in writing or executed in the same manner as this original document and shall after execution become a part of this Contract.
In witness Whereof, the Parties hereto do make and execute this Agreement.
CITY OF BOZEMAN, MONTANA ENGINEER
BY: BY: (City Manager) (Vice President)
DATE: DATE:
ATTEST:
BY:
(City Clerk)
L()
.-.----..- .. N
Attachment "A"
P\lf!POSE: fORTHEOMIERSOfmcts 1 112:-.utArERN (50:()1111Ul'Eit RAHCH Ut>.( TO R£l.OCATt.\COIAIONI!IOtHWI'I'l.H.
1HE CCMIISSICitO Of NS SliMY IS BOlOWi PUil.J::" SCHOOLS.
!I£NIING M S;WCS&I DOtR:IoiN[OIYSI.JMYGf>,,,,EQPS ll:ECf:M.RSwrTII THE COITR#II.. TlltOU(;:HL.Al 4$3$'40.4.H, lONG. 111"02"42.0" w.
nt: TOTN.I<ii£AI5 1 .7001CA£S.
<( "L"('")
N
(j) 0 0
".:I.
JOO' 600' 900'
SC A LE
!!
1