HomeMy WebLinkAboutProfessional Services Agreement with Design Nine for BroadbandCommission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Brit Fontenot, Economic Development Director David Fine, Economic Development Specialist
SUBJECT: Authorize the City Manager to sign a professional services contract with
Design Nine, Inc. for a broadband master plan, pending final legal review. MEETING DATE: June 16, 2014
AGENDA ITEM TYPE: Consent
RECOMMENDATION:
Authorize the City Manager to sign a contract with Design Nine, Inc. for providing broadband
master planning services, pending final legal review.
SUGGESTED MOTION: I move to authorize the City Manager to sign the professional services contract with Design Nine, Inc., pending final legal review.
BACKGROUND:
The Economic Development Department is seeking technical assistance in its effort to increase access to affordable, high-speed, fiber optic delivered broadband services throughout the City. A
broadband master plan will assess the feasibility of various courses of action to address the cost
and availability of broadband services in Bozeman. The plan will explore strategies for
facilitating the construction of broadband infrastructure by the private sector. Additionally, the plan will assess whether there is a sustainable business case for stimulating private sector broadband service delivery through public infrastructure investment. The recommendations of
the master plan will be based on an assessment of community needs and will seek the input of
community stakeholders.
UNRESOLVED ISSUES: None at this time.
ALTERNATIVES: As suggested by the City Commission.
Commission Memorandum
FISCAL EFFECTS: The total cost of the broadband master plan is $69,775, with an additional
$5,000 for the administration of a likely U.S. Economic Development Administration (EDA)
grant by the Northern Rocky Mountain Economic Development District (NRMEDD). The City
received $25,000 in grant funding from the Big Sky Economic Development Trust Fund (BSTF) and is hopeful for $30,000 from EDA. The remaining funds will allocated from financial commitments from a stakeholder group that includes the City of Bozeman, Bozeman School
District #7, Downtown Bozeman Tax Increment Finance (TIF) District, Bozeman Deaconess
Hospital, Northwestern Energy, and the Bozeman Chamber of Commerce.
Pending the final collection of funding commitments, the City of Bozeman’s general fund financial commitment to the master plan, as proposed, is not expected to exceed $20,000. The
Administration’s recommended budget for FY15 includes funding for the master plan and some
funding for anticipated costs related to implementing the plan’s recommendations.
Attachments: Professional Services Contract with Design Nine, Inc. and Prospera Business Network
Report compiled on: June 12, 2014
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PROFESSIONAL SERVICES AGREEMENT
BSTF Grant #2-14-20
Between:
City of Bozeman, Prospera Business Network and Design Nine, Inc.
THIS AGREEMENT is made and entered into this _____ day of ____________, 2014, by and
between the CITY OF BOZEMAN, MONTANA, a self governing municipal corporation
organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse
Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771,
hereinafter referred to as “City” and PROSPERA BUSINESS NETWORK, 2015 Charlotte
Street, Suite 1, Bozeman, Montana 59718, herein referred to as the “CRDC” and jointly referred
to here as “Contracting Entities” and DESIGN NINE, INC. of 2000 Kraft Drive, Suite 2180,
Blacksburg, Virginia 24060, a Virginia corporation, hereinafter referred to as “Contractor.”
WHEREAS, the Montana Department of Commerce, herein referred to as "the Department," has
awarded the CRDC grant funds under the Big Sky Economic Development Trust Fund (BSTF)
for up to a sum not to exceed $25,000.00 of the cost of providing the services defined in the
Scope of Work herein; and
WHEREAS, the City is responsible for a sum not to exceed $44,775.00 of the cost of providing
the services defined in the Scope of Work herein; and
WHEREAS, the Contracting Entities desire to engage the Contractor to render certain services
related to the administration of the above described project; and
WHEREAS, the Contracting Entities desire to enter into an agreement with the Contractor as
hereinafter provided to assure the effective management of the project;
In consideration of the mutual covenants and agreements herein contained, the receipt and
sufficiency whereof being hereby acknowledged, the parties hereto agree as follows:
1. Purpose: The Contracting Entities agree to enter this Agreement with Contractor to
perform for the Contracting Entities services described in the Scope of Services attached
hereto as Attachment “A” and by this reference made a part hereof.
2. Effective Date: This Agreement is effective upon the date of its execution. The services to
be performed by the Contractor will be completed no later than December 31st, 2015.
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3. Scope of Work: Contractor will perform the work and provide the services in
accordance with the requirements of the Scope of Services. For conflicts between this
Agreement and the Scope of Services, unless specifically provided otherwise, the
Agreement governs. The CRDC’s application to the Department for funding, dated May
6th, 2013 and all applicable federal and state statutes and regulations are incorporated
into this Contract by this reference and are binding upon the Contractor.
4. Payment: The Contracting Entities agree to pay Contractor the amount specified in the
Scope of Services. Any alteration or deviation from the described services that involves
additional costs above the Agreement amount will be performed by Contractor after
written request by the City, and will become an additional charge over and above the
amount listed in the Scope of Services. The Contracting Entities and the Department
must agree in writing upon any additional charges, prior to any work being performed.
Any additional charges beyond the original approved scope of work, would be the sole
responsibility of the City. For the satisfactory completion of the services to be provided
under this Contract, the Contractor will be paid a sum not to exceed $69,775.00 as in the
manner approved and set forth as agreed upon. Monthly billings may be submitted to the
Contracting Entities. The CRDC will pay the Contractor up to one half of the project
costs of the total eligible project costs submitted up to a sum not to exceed $25,000.00, of
the eligible expenses, in the manner approved and set forth herein. The City will pay the
Contractor one half, plus any remaining balance after the first $25,000 in eligible costs
submitted for a sum not to exceed $44,775.00. Disbursement of funds will be made by
CRDC upon approval and receipt of funds by the Department of all documentation
submitted through the CRDC. Disbursement of funds will be made by City upon
approval by City of all documents submitted through City. Each specific service the
Contractor will provide under this contract, and the maximum amount that the
Contracting Entities will pay the Contractor for each of these services is set forth in the
Scope of Work. The Contractor may submit monthly requests for payment, based on
actual work performed, which must be accompanied by an itemized invoice describing
the services furnished, the number of hours worked to accomplish each item, the amount
being billed for each item, a description of any other eligible expenses incurred during
the billing period, and the total amount being billed.
5. Contractor’s Representations: To induce Contracting Entities to enter into this
Agreement, Contractor makes the following representations:
a. Contractor has familiarized itself with the nature and extent of this Agreement, the
Scope of Services, and with all local conditions and federal, state and local laws,
ordinances, rules, and regulations that in any manner may affect cost, progress or
performance of the Scope of Services.
b. Contractor represents and warrants to Contracting Entities that it has the experience
and ability to perform the services required by this Agreement; that it will perform
said services in a professional, competent and timely manner and with diligence and
skill; that it has the power to enter into and perform this Agreement and grant the
rights granted in it; and that its performance of this Agreement shall not infringe upon
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or violate the rights of any third party, whether rights of copyright, trademark,
privacy, publicity, libel, slander or any other rights of any nature whatsoever, or
violate any federal, state and municipal laws. The Contracting Entities will not
determine or exercise control as to general procedures or formats necessary to have
these services meet this warranty.
The Contractor certifies that the Contractor's firm and the firm's principals are not
debarred, suspended, voluntarily excluded, or otherwise ineligible for participation in
State of Montana assisted contracts.
6. Independent Contractor Status/Labor Relations: The parties agree that Contractor is
an independent contractor for purposes of this Agreement and is not to be considered an
employee of the Contracting Entities for any purpose. Contractor is not subject to the
terms and provisions of the Contracting Entities’ personnel policies handbook and may
not be considered an employee of the Contracting Entities for workers’ compensation or
any other purpose. Contractor is not authorized to represent the Contracting Entities or
otherwise bind the Contracting Entities in any dealings between Contractor and any third
parties.
Contractor shall comply with the applicable requirements of the Workers’ Compensation
Act, Title 39, Chapter 71, MCA, and the Occupational Disease Act of Montana, Title 39,
Chapter 71, MCA. Contractor shall maintain workers’ compensation coverage for all
members and employees of Contractor’s business, except for those members who are
exempted by law.
Contractor shall furnish the Contracting Entities with copies showing one of the
following: (1) a binder for workers’ compensation coverage by an insurer licensed and
authorized to provide workers’ compensation insurance in the State of Montana; or (2)
proof of exemption from workers’ compensation granted by law for independent
contractors.
Contractor shall indemnify, defend, and hold the Contracting Entities 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.
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 and for any claims regarding
underpaid prevailing wages.
7. Indemnity/Waiver of Claims/Insurance: For other than professional services rendered,
to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify,
and hold harmless the Contracting Entities, their agents, representatives, employees, and
officers (collectively referred to for purposes of this Section as the Contracting Entities)
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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 Contracting Entities
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; or (ii) any negligent,
reckless, or intentional misconduct of any of the Contractor’s agents.
For the professional services rendered, to the fullest extent permitted by law, Contractor
agrees to indemnify and hold the Contracting Entities harmless against claims, demands,
suits, damages, losses, and expenses, including reasonable defense attorney fees, to the
extent caused by the negligence or willful misconduct of the Contractor or Contractor’s
agents or employees.
Such obligations shall not be construed to negate, abridge, or reduce other rights or
obligations of indemnity that would otherwise exist. 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 Contracting Entities.
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 Contracting Entities resulting from the Contracting
Entities’ performance under this Agreement, the Contracting Entities may elect to
represent itself and incur all costs and expenses of suit.
Contractor also waives any and all claims and recourse against the Contracting Entities or
its officers, agents or employees, including the right of contribution for loss or damage to
person or property arising from, growing out of, or in any way connected with or incident
to the performance of this Agreement except “responsibility for his own fraud, for willful
injury to the person or property of another, or for violation of law, whether willful or
negligent” as per 28-2-702, MCA.
These obligations shall survive termination of this Agreement and the services performed
hereunder.
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In addition to and independent from the above, the Contractor shall comply with the
following insurance requirements:
a. General Requirements. The Contractor shall maintain for the duration of the
contract, at its cost and expense, insurance against claims for injuries to persons or
damages to property, including contractual liability, which may arise from or in
connection with the performance of the work by the Contractor, agents, employees,
representatives, assigns, or subcontractors. This insurance shall cover such claims as
may be caused by any negligent act or omission.
b. Primary Insurance. The Contractor ‘s insurance coverage shall be primary
insurance with respect to the Contracting Entities, as well as the State of Montana, its
officers, officials, employees, and volunteers and shall apply separately to each
project or location. Any insurance or self-insurance maintained by the Contracting
Entities, State of Montana, its officers, officials, employees or volunteers shall be
excess of the Contractor’s insurance and shall not contribute with it.
c. Specific Requirements for Commercial General Liability Insurance. The
Contractor shall purchase and maintain occurrence coverage with combined single
limits for bodily injury, personal injury, and property damage of $1,000,000 per
occurrence and $2,000,000 aggregate per year to cover such claims as may be caused
by any act, omission, or negligence of the Contractor or its officers, agents,
representatives, assigns, or subcontractors.
d. The Contracting Entities, and the State of Montana, its officers, officials, employees,
and volunteers are to be covered and listed as additional insureds; for liability arising
out of activities performed by or on behalf of the Contractor, including the insured's
general supervision of the Contractor; products, and completed operations; premises
owned, leased, occupied, or used.
e. Specific Requirements for Professional Liability Insurance. The Contractor shall
purchase and maintain occurrence coverage with combined single limits for each
wrongful act of $1,000,000 per occurrence and $2,000,000 aggregate per year to
cover such claims as may be caused by any act, omission, negligence of the
Contractor or its officers, agents, representatives, assigns, or subcontractors. Note: if
"occurrence" coverage is unavailable or cost prohibitive, the Contractor may provide
"claims made" coverage provided the following conditions are met: (1) the
commencement date of the contract must not fall outside the effective date of
insurance coverage and it will be the retroactive date for insurance coverage in future
years; and (2) the claims made policy must have a three-year tail for claims that are
made (filed) after the cancellation or expiration date of the policy.
f. Specific Requirements for Automobile Liability. The Contractor shall purchase
and maintain coverage with split limits of $500,000 per person (personal injury),
$1,000,000 per accident occurrence (personal injury), and $100,000 per accident
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occurrence (property damage), OR combined single limits of $1,000,000 per
occurrence to cover such claims as may be caused by any act, omission, or negligence
of the contractor or its officers, agents, representatives, assigns, or subcontractors.
The Contracting Entities, the State of Montana, its officers, officials, employees, and
volunteers are to be covered and listed as additional insureds for automobiles leased,
hired, or borrowed by the Contractor.
g. Deductibles and Self-Insured Retentions. Any deductible or self-insured retention
must be declared to and approved by the Contracting Entities. At the request of the
Contracting Entities, either: (1) the insurer shall reduce or eliminate such deductibles
or self-insured retentions as respects the Contracting Entities, the State of Montana,
its officers, officials, employees, or volunteers; or (2) at the expense of the
Contractor, the Contractor shall procure a bond guaranteeing payment of losses and
related investigations, claims administration, and defense expenses.
h. Certificate of Insurance/Endorsements. A certificate of insurance from an insurer
with a Best's rating of no less than A- indicating compliance with the required
coverages, are to be received by the Contracting Entities, prior to beginning any
activity provided for under the Contract.. The Contractor must notify the Contracting
Entities, immediately, of any material change in insurance coverage, such as changes
in limits, coverages, change in status of policy, etc. The Contracting Entities reserve
the right to require complete copies of insurance policies at all times.
8. 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 work
(“Termination Notice Due to Contractor’s Fault”). The City may then elect to take
over the work and complete it with its own resources, without the use of BSTF
matching funds, or by re-letting the contract to any other third party. In the event the
City re-lets the contract, they may do so with written notice to the Department of
Commerce and Prospera Business Network. Upon approval of a new Professional
Services Agreement by the Department and Prospera, BSTF funds will be allowed to
be used as stipulated in this agreement.
b. In the event of a termination pursuant to this Section 8, Contractor shall be entitled to
payment only for those services Contractor actually rendered.
c. Any termination provided for by this Section 8 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 8, Contractor shall, under no
circumstances, be entitled to claim or recover consequential, special, punitive, lost
business opportunity, lost productivity, field office overhead, general conditions
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costs, or lost profits damages of any nature arising, or claimed to have arisen, as a
result of the termination.
9. Termination for Contracting Entities’ Convenience:
a. Should conditions arise which, in the sole opinion and discretion of the Contracting
Entities, make it advisable to the Contracting Entities to cease performance under this
Agreement the Contracting Entities may terminate this Agreement by written notice
to Contractor (“Notice of Termination for Contracting Entities’ Convenience”). The
termination shall be effective in the manner specified in the Notice of Termination for
Contracting Entities’ Convenience and shall be without prejudice to any claims that
the Contracting Entities may otherwise have against Contractor.
b. Upon receipt of the Notice of Termination for Contracting Entities’ Convenience,
unless otherwise directed in the Notice, the Contractor shall immediately cease
performance under this Agreement and make every reasonable effort to refrain from
continuing work, incurring additional expenses or costs under this Agreement and
shall immediately cancel all existing orders or contracts upon terms satisfactory to the
Contracting Entities. Contractor shall do only such work as may be necessary to
preserve, protect, and maintain work already completed or immediately in progress.
c. In the event of a termination pursuant to this Section 13, Contractor is entitled to
payment only for those services Contractor actually rendered on or before the receipt
of the Notice of Termination for Contracting Entities’ Convenience.
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.
10. 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 Contracting Entities 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.
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11. Representatives:
a. City’s Representative: The City’s Representative for the purpose of this
Agreement shall be Brit Fontenot (Economic Development Director) 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 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. CRDC’s Representative: The CRDC’s Representative for the purpose of this
Agreement shall be Stuart R. Leidner (Executive Director, Prospera Business
Network) Whenever approval or authorization from or communication or
submission to CRDC is required by this Agreement, such communication or
submission shall be directed to Stuart R. Leidner as the CRDC’s Representative
and approvals or authorizations shall be issued only by such Representative.
c. Contractor’s Representative: The Contractor’s Representative for the purpose
of this Agreement shall be Andrew Cohill 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, the Contracting
Entities may direct its direction or communication to other designated Contractor
personnel or agents.
12. 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,
and pay all fees and charges in connection therewith.
13. 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. The Contractor shall
promptly refer to the Contracting Entities any credible evidence that a principal,
employee, agent, contractor, sub-grantee, subcontractor, or other person has submitted
any false claim or has committed any criminal or civil violation of laws pertaining to
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fraud, conflict of interest, bribery, gratuity, or similar misconduct involving funds
provided under this Contract.
14. Conflict of Interest: The Contractor covenants that it presently has no interest and will
not acquire any interest, direct or indirect, in the BSTF/Partner project which would
conflict in any manner or degree with the performance of its services hereunder. The
Contractor further covenants that, in performing this Contract, it will employ no person
who has any such interest.
15. Conditional Agreement: It is expressly understood by the parties hereto that CRDC’s
performance under this Contract is dependent and conditioned upon the receipt of the
funds from the Department and that in the event that said funds are not provided, the
CRDC incurs no responsibilities or liabilities under this Contract.
16. Nondiscrimination: The Contractor will have a policy to provide equal employment
opportunity in accordance with all applicable state and federal anti-discrimination laws,
regulations, and contracts. The Contractor 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 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. As used herein, "qualifications"
means qualifications that are generally related to competent performance of the particular
occupational task.
17. Intoxicants: DOT Drug and Alcohol Regulations/Safety and Training: Contractor shall
not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal
drugs, by any employee or agent engaged in services to the City under this Agreement
while on City property or in the performance of any activities under this Agreement.
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.
18. The Contractor shall be responsible for instructing and training the Contractor's
employees and agents in proper and specified work methods and procedures. The
Contractor shall provide continuous inspection and supervision of the work performed.
The Contractor is responsible for instructing his employees and agents in safe work
practices.
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19. Modification and Assignability: This Agreement may not be enlarged, modified or
altered except by written agreement signed by both parties hereto. The Contractor may
not subcontract or assign Contractor’s rights, including the right to compensation or
duties arising hereunder, without the prior written consent of City. Any subcontractor or
assignee will be bound by all of the terms and conditions of this Agreement.
20. Reports/Accountability/Public Information: Contractor agrees to develop and/or
provide documentation as requested by the Contracting Entities, and the Department
demonstrating Contractor’s compliance with the requirements of this Agreement.
Contractor shall allow the Contracting Entities, and the Department, its auditors, and
other persons authorized by the Contracting Entities, and the Department to inspect and
copy its books and records for the purpose of verifying that the reimbursement of monies
distributed to Contractor pursuant to this Agreement was used in compliance with this
Agreement and all applicable provisions of federal, state, and local law. The Contractor
shall not issue any statements, releases or information for public dissemination without
prior approval of the Contracting Entities, and the Department. It is expressly understood
that the Contractor's records relating to this Contract will be available during normal
business hours for inspection by the Contracting Entities, the Department, and when
required by law, the Montana Legislative Auditor and Legislative Fiscal Analyst.
21. Ownership and Publication of Materials: All reports, information, data, and other
materials prepared by the Contractor pursuant to this Contract are the property of the
Contracting Entities, and the Department, which have the nonexclusive and unrestricted
authority to release, publish or otherwise use, in whole or part, information relating
thereto. Any reuse without written verification or adaptation by the Contractor for the
specific purpose intended will be at the Contracting Entities’ sole risk and without
liability or legal exposure to the Contractor. No material produced in whole or in part
under this Contract may be copyrighted or patented in the United States or in any other
country without the prior written approval of the Contracting Entities and the
Department.
22. Non-Waiver: A waiver by either party any default or breach by the other party of any
terms or conditions of this Agreement does not limit the other party’s right to enforce
such term or conditions or to pursue any available legal or equitable rights in the event of
any subsequent default or breach.
23. Attorney’s Fees and Costs: That in the event it becomes necessary for either Party of
this Agreement to retain an attorney to enforce any of the terms or conditions of this
Agreement or to give any notice required herein, then the prevailing Party or the Party
giving notice shall be entitled to reasonable attorney's fees and costs, including fees,
salary, and costs of in-house counsel to include City Attorney, and attorneys for
Contracting Entities, and the Department.
24. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all
appropriate employee withholdings.
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25. 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 may only be resolved in a court
of competent jurisdiction in compliance with the Applicable Law provisions of
this Agreement.
26. Survival: Contractor’s indemnification shall survive the termination or expiration of this
Agreement for the maximum period allowed under applicable law.
27. 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.
28. Severability: If any portion of this Agreement is held to be void or unenforceable, the
balance thereof shall continue in effect.
29. Applicable Law: The parties agree that this Agreement is governed in all respects by the
laws of the State of Montana.
30. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs,
legal representatives, successors, and assigns of the parties.
31. 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.
32. Counterparts: This Agreement may be executed in counterparts, which together
constitute one instrument.
33. 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 ****
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IN WITNESS WHEREOF, the parties hereto have execute this instrument the day and
year first above written.
CITY OF BOZEMAN, MONTANA Design Nine, Inc.
CONTRACTOR
By By
Chris Kukulski, City Manager Andrew Cohill
President, Design Nine, Inc
PROSPERA BUSINESS NETWORK
By
Stuart Leidner, Executive Director
APPROVED AS TO FORM:
By
Greg Sullivan, City Attorney
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Attachment A
Scope of Services
Primary Services:
1. Facilitate Onsite Assessment Meetings with Key Stakeholders
a. The proposal should specify agendas for onsite meetings for the firm to meet
with stakeholders to discuss the stakeholders’ project vision, motivations, goals,
and objectives.
b. The agendas for the proposed meetings should include, at minimum, the
following discussion topics. The proposed agendas may not be limited to these
topics.
Review the project schedule, key milestones and deliverables
Review economic development and other benefits of enhanced
connectivity
Identify growth areas and emerging companies in the region
Identify potential service gaps and markets
Review the range of potential business models
Discuss potential product development, market positioning, and
customer segments
Develop a comprehensive list of stakeholders for inclusion in the
planning process
2.
a. The agenda should demonstrate that the firm understands the importance of
stakeholder engagement in gathering relevant data to meet the service and
financial needs of stakeholders and the community at large.
3. Assess the existing market for regional connectivity
a. Discuss how the proposed master plan will assess existing community
connectivity resources. This analysis should include how the assessment will
identify particular market needs and how a community broadband network will
fill a niche that meets those needs.
4. Develop Construction Standards for City Streets and Right-of-Way to Facilitate
Public and Private Fiber Construction.
a. Review the City of Bozeman’s engineering and development processes and
standards and make recommendations on how to implement fiber optic
construction.
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b. Develop a formal “dig-once policy” and construction specifications to facilitate
placement of conduit throughout the community as part of City construction
standards.
c. Develop a formal building standards policy and construction specifications to
facilitate in-building access for wireline infrastructure in new construction and
major remodels.
5. Analyze Service Models, Ownership, and Operations
a. The proposal should discuss how various potential service models will allow the
community to meet its objectives. The proposal should delineate the approach of
the master plan for addressing the strengths, weaknesses, opportunities and
threats posed by potential service models. Private-public partnerships and open-
access models must be included. The proposal should include a business case
analysis for each of its recommended models. The report should recommend a
particular service model that the firm believes best meets community goals.
6. Develop a Build Plan
a. Build Plan for the Fiber Ring: Based on a thorough analysis of community needs
propose methods for determining a high-level design for network infrastructure
to meet the region’s goals. The proposed Build Plan for the Fiber Ring section
should include, at minimum, the following attributes:
Fiber Ring Characteristics Development
Fiber Ring Path Planning for Initial Sites including City Offices, County
Offices, Bozeman School District No. 7, Downtown Bozeman Tax
Increment Financing District, and Bozeman Deaconess Hospital
Planning for Future Expansion
Discuss how open access considerations affect the proposed build plan
b. Build Plan for a Network Facility: Discuss the process for locating and planning
a network facility. The proposed Build Plan for the Network Facility section
should include, at minimum, the following attributes:
Location Characteristics
Power Considerations
Carrier Access
Physical Security
Explore potential partnerships with existing and developing network
facilities
c. Propose a timeline for the various components of the proposed build plan.
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7. Financial Sustainability Plan
a. The proposer should articulate the full scope of its proposed comprehensive
business planning process. The proposal should present strategies for addressing,
at minimum, the following financial considerations within a comprehensive
business plan:
Revenue targets, resources required to meet those targets, and return on
investment analysis
Cost/benefit analysis that follows accounting standards
Pricing and tiered revenue structures
Financing the Fiber Ring and Network Facility
Outline Operational Considerations:
1. Maintenance
2. Operation
3. Administration
Outline Service Considerations:
1. Discuss how the characteristics of the service levels provided
will affect operating costs.
Partnership Opportunities for Funding
Outline how E-Rate funding can be used to support the cost of network
construction.
Outline potential grant opportunities and other sources of funding.
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8. Benefits Analysis
a. Discuss benefits of the proposed network for the following stakeholders:
Public Education Sector
Research Activities
Technology Sector
New Business Startup Activities
Enhancing Government and Civic Engagement
Economic Development
9. Outline Next Steps for Implementation of the Master Plan
a. Outline the next steps for implementing the Master Plan upon its adoption by the
City Commission.
Estimate the cost for each of the proposed implementation steps.
Final Deliverable
b. The final deliverable will include all elements of a traditional business plan, and
will encompass the strategic plan and all other data and insights developed in the
previous deliverables.
c. Maps and specific location data provided in the Master Plan should be GIS
compatible, so that construction can be coordinated with other City infrastructure
and projects.
d. The final deliverable should be presented at a public meeting.
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Additional Services Upon Request by City:
The City may (refer to Section 4 Payments), at its discretion, request the Contractor to
perform additional services upon completion of the above describe primary services. If so,
the City will issue an addendum to this contract, which additional services may include but
not be limited to, the following:
1. Attend meetings, if requested, with employees and officials to refine and clarify
components of the master plan.
2. Assist the City, if requested, in implementing any part of the proposed master plan.
3. Assist in the development, if requested, of City-wide policies, regulations, procedures,
and engineering standards needed to implement the master plan or facilitate the building
of broadband infrastructure.
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Attachment B
Fee Schedule
For the satisfactory completion of the services to be provided under this Contract, the Contractor
will be paid a sum not to exceed $69,775.00 as in the manner approved and set forth as agreed
upon. Monthly billings may be submitted to the Contracting Entities. The CRDC will pay the
Contractor up to one half of the project costs of the total eligible project costs submitted up to a
sum not to exceed $25,000.00, of the eligible expenses, in the manner approved and set forth
herein. The City will pay the Contractor one half, plus any remaining balance after the first
$25,000 in eligible costs submitted for a sum not to exceed $44,775.00. Disbursement of funds
will be made by CRDC upon approval and receipt of funds by the Department of all
documentation submitted through the CRDC. Disbursement of funds will be made by City upon
approval by City of all documents submitted through City.
Each specific service the Contractor will provide under this contract, and the maximum amount
that the Contracting Entities will pay the Contractor for each of these services is set forth in the
Scope of Work. The Contractor may submit monthly requests for payment, based on actual
work performed, which must be accompanied by an itemized invoice describing the services
furnished, the number of hours worked to accomplish each item, the amount being billed for
each item, a description of any other eligible expenses incurred during the billing period, and the
total amount being billed.
All normal and ordinary travel expenses are included as part of our fee. Contractor estimates that
it will make five to six on-site visits to Bozeman, including a final visit that could include a
presentation to City Commission.
Hourly Rates
Work requested outside of the Scope of Work will be billed at the rates below, per written
change orders.
Rate Schedule for Staff Hourly Rate
Broadband Architect (Project Manager) $125.00
Network Engineer $125.00
Senior Broadband Planner $110.00
Legal counsel (billed as straight pass thru cost with no markup) $240.00
Financial engineering $115.00
GIS/CAD design and mapping work $80.00
Technical support and Web development $65.00