HomeMy WebLinkAbout14- The Craftsman, Inc Construction Agreement for Legal Office RemodelCONSTRUCTION AGREEMENT
This Construction Agreement is made this 25`h day of April, 2014, by and between the CITY
OF BOZEMAN, MONTANA, a municipal corporation organized and existing under the laws
of the State of Montana, P.O. Box 1231, Bozeman, Montana 59771-1231 ("City"), and
Lutey Construction, a Corporation, of —The Craftsman Inc., 420 S. 13`h Ave., Bozeman,
Montana 59715, ("Contractor").
Recitals
A. The City issued a Request for Bid for the construction project known as Legal
Office Remodel at City Hall Project (the "Construction Project") pursuant to the requirements of
all applicable statutes, rules, regulations, and ordinances.
B. The City analyzed all responses to the Request For Bid received pursuant to its
standard practices and the requirements of all applicable statutes, rules, regulations, and
ordinances.
C. The City awarded the bid to Contractor on April 11, 2014, pursuant to the terms
and conditions of 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 Request For Bid and Bid Form as awarded and accepted by City and the
Project Manual for the Legal Office Remodel Project, which are attached hereto and
incorporated herein by this reference, and the drawings, plans, and specifications
provided by the City and its architects and engineers. The City's Award is attached here
as Exhibit A. Where a provision of the Project Manual conflicts with this Agreement the
terms and conditions of this shall Agreement control.
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 plans, designs, drawings, and specifications. If the
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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 related plans, designs, drawings, and
specifications.
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.
d. During work on the Construction Project, and as part of the final
completion of the Construction Project, Contractor shall clean up the Project site,
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: The City may supply materials from time to time in
furtherance of the Construction Project. Such materials will be noted as an addendum to
this Agreement.
3. Time of Performance:
a. Contractor shall begin the Construction Project after receiving a Notice to
Proceed from City and shall complete the Construction Project within twenty (20) days of
the starting date stated in the Notice to Proceed. After receiving the Notice to Proceed
from the City and prior to commencing work Contractor shall develop a Construction
Schedule for approval by the City which shall become part of this Agreement and be
attached as Exhibit B. The schedule shall be developed within five (5) days of execution
of this Agreement. 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 work
in a timely manner according to the Construction Schedule.
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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
Two Thousand Five Hundred Dollars ($2,500.00), as paid in accordance with Exhibit C,
Compensation Schedule, attached hereto.
b. If work not included within the Project Manual 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 ("Change Order") pursuant to
the Change of Work Specifications set forth in the Project Manual attached hereto.
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 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 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
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shall not relieve the Contractor of its duty, responsibility, and obligation to ensure that the
work strictly complies with the Agreement terms and conditions and all applicable laws
and 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
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 Proiect: 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 construction site, 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.
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b. All workmanship and materials shall be of a kind and nature acceptable to
the City and all work shall conform to the Project Manual.
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 for a minimum period beginning with the commencement of the work
on the Construction Project and ending one (1) year from the final completion and
acceptance by the City of the Construction Project, regardless of whether such
equipment, materials, or labor were supplied directly by Contractor or indirectly by
Contractor's subcontractors or suppliers. Other express warranties on materials that
provide for a warranty period longer than one year apply for the period of that express
warranty and are not reduced by this provision. Upon receipt of City's written notice of a
defective or nonconforming condition during the warranty period, Contractor shall take
all actions, including redesign and replacement, to correct the defective or
nonconforming condition within a time frame acceptable to the City and at no additional
cost to the City. Contractor shall also, at its sole cost, perform any tests required by City
to verify that such defective or nonconforming condition has been corrected. Contractor
warrants the corrective action taken against defective and nonconforming conditions for a
period of an additional one (1) year from the date of City's acceptance of the corrective
action.
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
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.
E Contractor shall have a complete, accurate, and up-to-date set of
construction plans, drawings, and specifications on site 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.
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i. All work must be performed at Contractor's risk, and Contractor shall
promptly repair or replace all damage and loss 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.
1. 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.
In. Contractor represents that the Contractor has reviewed and understands
the Project Manual and all associated documents, 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 Project
Manual, and has notified the City's Representative of and obtained clarification of any
discrepancies which have become apparent during the bidding period.
n. The Contractor further warrants that the Work will conform to the
requirements of the Contract Documents and will be free from defects, except for those
inherent in the quality of the Work the Contract Documents require or permit. 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 Architect, 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 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
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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
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.
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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.
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
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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.
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. For the City, the primary contact shall be James Goehrung
(Superintendant of Facilities) or such other individual as City shall designate in writing.
Whenever approval or authorization from or communication or submission to City is
required by this Agreement, such communication or submission shall be directed to
Comma -Q Architecture 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
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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 Shane Lutey (Project Manager) 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 federal,
state, and local 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 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.
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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 Occupational Safety and
Health Act (Title 50, Chapter 71, MCA), the Montana Safety Culture Act (Title 37, Chpt.
71, Part 15, MCA), all applicable City, County, and State building and electrical codes,
the Americans with Disabilities Act and its amendments, 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. City may order removal from the
Construction Project of any employee or agent of Contractor or any of its subcontractors
for use of controlled substances and alcohol on the site of the Construction Project.
22. Labor Relations
a. 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.
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b. 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.
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
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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 in accordance with
generally accepted accounting principles. Upon reasonable notice, City and its agents
including its auditors shall have the right to inspect and copy 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 for the purpose of
verifying that the reimbursement of monies distributed to Contractor pursuant to this
Agreement were used in compliance with this Agreement and all applicable provisions of
federal, state, and local law. In addition, the Consultant shall not issue any statements,
releases or information for public dissemination regarding the Construction Project
without prior approval of the City.
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,
employees, and officers (collectively referred to for purposes of this Section as the City)
and the City's Representative and its consultants, agents and employees (collectively
referred to for purposes of this Section as the City's Representative) 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 or the City's Representative, 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).
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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
below in subsection (c) of this Section 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.
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 proof when requested by
City thereafter during the term of the 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.
C. Contractor shall obtain the following type of insurance in the amount
indicated:
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• Workers' Compensation — not less than statutory limits;
• Employers' Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate
• Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual
aggregate;
• Products and Completed Operations — $1,000,000;
• Automobile Liability - $1,000,000 property damage/bodily injury; $2,000,000
annual aggregate (all owned, hired, non -owned vehicles);
• Builder's Risk/Property Insurance at least as broad as that provided by the ISO
special causes of loss form (CP 10 30) naming at a minimum the City in an
amount equal to greater of Contractor's compensation or full replacement value of
the work (covering at a minimum all work, buildings, materials and equipment,
whether on site or in transit, loss due to fire, lightening, theft, vandalism,
malicious mischief, earthquake, collapse, debris removal, demolition occasioned
by enforcement of laws, water damage, flood if site within a flood plain, repair or
replacement costs, testing and start-up costs) on an all risk coverage basis. This
insurance must include waivers of subrogation between the City and Contractor to
the extent that damage to the Construction Project or City Hall is covered by other
insurance;
• Owner's and Contractor's Protective Liability: one policy designating the City
(including its agents, representatives, employees, and officers) as the insured and
another independent policy designated the City's Representative (including its
consultants, consultants, agents and employees) as the insured on the declarations
with both policies covering: (i) operations performed by the Contractor under this
Agreement for the City; and (ii) the City's and City's Representatives acts or
omissions, including negligent acts, in connection with its general supervision of
the work of the Contractor's and its subcontractors - $1,000,000 per occurrence;
$2,000,000 aggregate;
• Contractual Liability Insurance (covering the Contractor's indemnity
obligations described in this Agreement) - $1,000,000 per occurrence $2,000,000
aggregate; and
For liabilities assumed hereunder, the City of Bozeman, its officers, agents, and
employees, and the City's Representatives and its consultants, 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. Pursuant to the City's authority provided for in 18-2-201(4), the
Contractor shall not be required to provide ponds as required by 18-2-201(1) under this
Agreement.
28. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all
appropriate employee withholdings including for unemployment compensation.
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
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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.
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 except as provided herein related to the City's Representative.
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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 (including its duty to defend,
indemnify and hold harmless) 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 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:
Notice of Award of Bid
Exhibit B:
Construction Schedule
Exhibit B:
Compensation Schedule
Exhibit C:
Change of Work Specifications
Exhibit D:
Required Insurance Coverage
Exhibit E:
Required Bonds
In the event of conflict among the various provisions of the above documents, the terms
shall be interpreted in the following order of priority:
1. Modifications to this Agreement
2. This Agreement
3. Project Manual
Drawings shall control over Specifications, and details in drawings shall control over
large-scale drawings.
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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.
****End of Agreement Except for Signatures****
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
By: � 9L —
Chris A. Kuku ski, City Manager
APPROVED AS TO FORM (§18-2-406, MCA):
Greg S ivan, City Attorney
18 Legal Office Remodel
Lutey Construction, CONTRACTOR
By: ��4
Print Name: 5 k�n 8 L,,.4 e
Title: Vice