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HomeMy WebLinkAbout14- Bureau Veritas Building Inspection Services Professional Services Agreement PROFESSIONAL SERVICES AGREEMENT FOR BUILDING INSPECTION SERVICES This PROFESSIONAL SERVICES AGREEMENT("Agreement") is made and entered into this L7 day of June,2014,by and between Bureau Veritas North America,Inc.,(herein called"BVNA"),and the City of Bozeman,Montana(herein called the "City"). WHEREAS, the City desires that BVNA provide independent building inspection services for the City under the terms of a Professional Services Agreement in order to supplement the City's workforce of building inspectors for a finite period of time; WHEREAS, BVNA represents that it is a professional independent consulting firm and is willing and able to perform such services upon terms and conditions hereinafter set forth; WHEREAS, all services will be conducted in accordance with these terms and conditions and the agreed upon Statement of Work and Fee Schedule the forms of which are attached as Attachments"A"and"B"respectively. NOW,THEREFORE,in consideration of the foregoing and of the benefits to each of the parties accruing,the parties hereto do mutually agree as follows: AGREEMENT I. Scope of Services: BVNA shall provide building inspection services(the"Services")as described in the Statement of Work attached as Attachment A,which is incorporated by reference and made a part of this Agreement. 2. Condition Precedent. Performance under this Agreement is expressly conditioned on consent to this Agreement by the Bozeman City Commission. 3. Term. The term of this Agreement shall commence on the effective date of this Agreement,and terminate on September 30, 2014,unless earlier terminated per the termination provisions of this Agreement. This Agreement may be renewed for additional term(s)by written agreement of both parties. 4. Time for Completion of Performance: BVNA shall not be responsible for failure to perform its services if i)there is a failure or delay by the City or its contractors in providing BVNA with the necessary access to properties, documentation, information, or materials; ii)the City or its contractors fail to approve or disapprove BVNA's work;or iii)if the City causes delays in any way whatsoever. In any of these events, BVNA's time for completion of its service shall be extended accordingly. BVNA shall not be responsible for failure to perform if such failure is due to any act of God, labor trouble,fire, inclement weather, act of governmental authority, failure of transportation, accident, power failure or interruption, or any other cause reasonably beyond BVNA's control. In any of these events,BVNA's time for completion of the Services shall be extended accordingly. 5. Payment: The City will make payment for Services to BVNA in accordance with the Schedule of Fees set forth in Attachment B,which is incorporated by reference and made a part of this Agreement. 6. Method of Payment: BVNA shall submit monthly billings to the City describing the work performed during the preceding month. The City shall pay BVNA no later than thirty(30) days after receipt of the monthly invoice by the City's staff. If the invoice is not paid within such period, the City shall be liable to BVNA for a late charge accruing from the date of such invoice to the date of payment at the lower of eighteen(18)percent per annum or the maximum rate allowed by law. Further, if the invoice is not paid within such period, BVNA may,at any time,and without waiving any other rights or claims against the City and without thereby incurring any liability to the City, elect to terminate performance of services immediately following written notice from BVNA to the City. Notwithstanding any such termination of services,the City shall pay BVNA for all services rendered by BVNA up to the date of termination of services. The City shall reimburse BVNA for all costs and expenses of collection,including reasonable attorney's fees. 7. Ownership of Documents: All reports,data,documents and other writings prepared by BVNA,its officers,employees and agents and subcontractors in the course of providing Services under this Agreement shall be the property of the City. The City acknowledges that the names, service marks, trademarks, logos and copyrights of BVNA and its affiliates, (collectively,the Professional Services Agreement For Building Inspection Services Page 1 of 7 "Rights")are and shall remain the sole property of BVNA or its affiliates and shall not be used by the City, except solely to the extent that the City obtains the prior written approval of BVNA and then only in the manner prescribed by BVNA. If BVNA terminates the Agreement in accordance with the provisions of Article 29 below, any such license granted by BVNA to the City shall automatically terminate. 8. Use of Data or Services: BVNA shall not be responsible for any loss,liability,damage,expense or cost arising from any use of BVNA's analyses, reports, certifications, advice or reliance upon BVNA's services, which is contrary to, or inconsistent with,or beyond the provisions and purposes set forth therein or included in this Agreement. 9. Independent Contractor: It is understood that BVNA,in the performance of the work and services agreed to be performed, shall act as and be an independent contractor and shall not act as an agent or employee of the City. BVNA shall obtain no rights to retirement benefits or other benefits which accrue to the City's employees, and BVNA hereby expressly waives any claim it may have to any such rights. BVNA Building Inspector(s)placed with the City are not employees of the City,and BVNA and not the City will be solely and exclusively responsible for(i)the payment of wages,salaries,pensions, overtime, holiday, sick and vacation pay; (ii) any applicable federal, state and local withholding and/or payment of unemployment and any other employment-related taxes including but not limited to FICA, Social Security,and Medicare;(iii)any payments that may be due under state workers' compensation laws;and(iv)any other claim,obligation,demand,tax,benefit,wage or other payroll-related expense or penalty that may occur under local, state or federal law. BVNA shall indemnify and hold the City harmless for any and all claims,demands,judgments and awards for such items and any other employment obligations with respect to the Services provided pursuant to this Agreement. 10. Representations and Warranties: a. BVNA represents and warrants that is a"temporary service contractor"as that term is defined in Montana Code section 39-71-116. b. BVNA represents and warrants that the Building Inspector(s) it provides pursuant to this Agreement will perform the Services in a professional,competent and timely manner and with diligence and skill. c. BVNA has the power and authority to enter into and perform its obligations under this Agreement. d. BVNA's performance under this Agreement will not infringe upon or violate the rights of any third party, whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever,or violate any federal state and municipal laws. 11. Indemnity:BVNA shall defend, indemnify and hold harmless the City from and against losses,liabilities,and reasonable costs and expenses (for property damage and bodily injury, including reasonable attorney's fees), to the extent directly and proximately caused by BVNA's or BVNA's agents', subcontractors', or employees' negligent performance of services, willful misconduct,or breach of warranty under this Agreement,without regard to and without any right to contribution from any insurance maintained by the City. BVNA will at BVNA's expense secure insurance coverage sufficient to insure BVNA's obligations under this Section. The obligations of this Section will survive termination of this Agreement and the services performed hereunder. 12. Limitation of Liability: In any dispute between BVNA and the City, neither party shall be liable under any circumstances for loss of profits, loss of product, consequential damages of any kind, indirect damages of any kind, special damages of any kind,or punitive damages to the other party. 13. Insurance: BVNA, at BVNA's own cost and expense, shall procure and maintain, for the duration of the contract, the following insurance policies with insurers possessing a Best's rating of no less than A:VII: a. Workers' Compensation Coverage:BVNA shall maintain Workers'Compensation and Employer's Liability Insurance for any and all BVNA personnel providing Services to the City of Bozeman in accordance with the Workers' Compensation Act, Title, 39, Chapter 71, MCA. Prior to commencement of Services under this Agreement, BVNA will provide the City with a binder for workers' compensation coverage by an insurer licensed and authorized to provide workers' compensation insurance in the State of Montana, demonstrating that BVNA provides extraterritorial coverage insuring BVNA personnel while working in Montana. Professional Services Agreement For Building Inspection Services Page 2 of 7 b. General Liability Coverage:BVNA shall maintain Commercial General Liability insurance in an amount not less than two million dollars ($2,000,000) per occurrence for bodily injury, personal injury and property damage. c. Automobile Liability Coverage:BVNA shall maintain Automobile Liability insurance covering bodily injury and property damage for activities of BVNA personnel arising out of or in connection with the work to be performed under this Agreement, including coverage for owned,hired and non-owned vehicles, in an amount not less than two million dollars($2,000,000)combined single limit for each occurrence. d. Professional Liability Coverage: BVNA shall maintain Professional Errors and Omissions Liability for protection against claims alleging negligent acts, errors or omissions which may arise from BVNA's services under this Agreement. The amount of this insurance shall not be less than two million dollars($2,000,000)on a claims-made annual aggregate basis. BVNA will notify the City within two(2)business days of BVNA's receipt of notice that any of the above insurance coverage will be cancelled or not renewed. BVNA shall name the City as additional insured and other parties that it deems appropriate to be additionally insured under BVNA's Commercial General Liability policy,Professional Liability policy,and Automobile Liability policy. 14. Notice of Claim: In the event BVNA wants to assert a claim for damages against the City,BVNA shall provide the 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 BVNA fails to provide such notice,BVNA shall waive all rights to assert such claim. 15. Compliance with Laws: BVNA shall comply with all applicable federal, state and local laws, codes, ordinance and regulations in effect as of the date services are provided. 16. Nondiscrimination: BVNA will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws,regulations,and contracts. BVNA 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. BVNA shall be subject to and comply with Title VI of the Civil Rights Act of 1967, Section 140, Title 2, United States Code, and all regulations promulgated thereunder. BVNA shall require these nondiscrimination terms of any of its sub-Contractors and employees providing services under this Agreement. 17. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: BVNA 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. BVNA 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. The City shall have the right to request proof of such compliance and BVNA shall be obligated to furnish such proof. BVNA shall be responsible for instructing and training BVNA's employees and agents in proper work methods and procedures. BVNA is responsible for instructing its employees and agents in safe work practices. 18. Resolution of Disputes: All claims, disputes, controversies or matters in question arising out of, or relating to,this Agreement or any breach thereof, including but not limited to disputes arising out of alleged design defects, breaches of contract, errors, omissions, or acts of professional negligence, (collectively "Disputes") shall be submitted to mediation before and as a condition precedent to pursuing any other remedy. Upon written request by either party to this Agreement for mediation of any dispute, the City and BVNA shall select a neutral mediator by mutual agreement. Such selection shall be made within ten(10)calendar days of the date of receipt by the other party of the written request for mediation. In the event of failure to reach such agreement or in any instance when the selected mediator is unable or unwilling to serve and a Professional Services Agreement For Building Inspection Services Page 3 of 7 replacement mediator cannot be agreed upon by the City and BVNA within ten(10)calendar days,a mediator shall be chosen as specified in the Mediation Rules of the American Arbitration Association then in effect,or any other appropriate rules upon which the parties may agree. Should either party to this Agreement commence any legal action against the other party arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable litigation expenses, including court costs, expert witness fees, discovery expenses,and attorney's fees. 19. Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the State of Montana. 20. Releases: All lien releases will be limited to payment issues; no additional terms and conditions may be added to a release of lien. 22. Third Party Beneficiary: It is expressly understood and agreed that the enforcement of these terms and conditions shall be reserved to the City and BVNA. Nothing contained in the Agreement shall give or allow any claim or right of action whatsoever by any third person. It is the express intent of the City and BVNA that any such person or entity,other than City or BVNA,receiving services or benefits under this Agreement shall be deemed an incidental beneficiary. 23. Written Notification: Any notice, demand, request, consent, approval or communication that either party desires or is required to give to the other party shall be in writing and either served personally,sent by e-mail,or sent prepaid,first class mail. Any such notice, demand, etc., shall be addressed to the other party at the address set forth in the proposal. Either party may change its address by notifying the other party of the change of address.Notice shall be deemed communicated within 48 hours from the time of mailing if mailed as provided in this section. Notices to the City shall be sent to: Wendy Thomas,Director of Community Development wthomas@bozeman.net City of Bozeman P.O.Box 1230 Bozeman,MT 59771-1230 Notices to BVNA shall be sent to: Michael Vieira 24. Confidential Information: Neither party shall disclose information identified as confidential to anyone except those individuals who need such information to perform the Services; nor should either party use such confidential information, except in connection with the Work, the performance of the Services or as authorized by the other party in writing. Regardless of the term of this Agreement, each party shall be bound by this obligation until such time as the confidential information shall become part of the public domain. Confidential information shall not include information which is either: (i)known to the public;(ii)was known to the receiving party prior to its disclosure;or(iii)received in good faith from a third party. If either party is required to produce information by valid subpoena or Court order, parties agree to first provide prompt notice to other party in order to allow the party to seek a protective order or other appropriate remedy. This shall not prevent either party from disclosing information to the extent reasonably necessary to substantiate a claim or defense in any adjudicatory proceeding. The City agrees that BVNA may not use the City's name and logos in BVNA's marketing materials without the City's prior written consent.The technical and pricing information contained in any proposal or other documents submitted to the City by BVNA shall be considered confidential and proprietary and shall not be released or disclosed to a third party without BVNA's written consent. 25. Assignment: Neither party may assign this Agreement or any right or obligation hereunder without the prior written consent of the other party,which shall not be unreasonably withheld or delayed;provided,however,that no consent shall be necessary in the event of an assignment to a successor entity resulting from a merger, acquisition or consolidation by either party or an assignment to an Affiliate of either party if such successor or Affiliate assumes all obligations under this Agreement. Any Professional Services Agreement For Building Inspection Services Page 4 of 7 attempted assignment,which requires consent hereunder, shall be void and shall constitute a material breach of this Agreement if such consent is not obtained. 26. Waiver: No failure on the part of either party to exercise any right or remedy hereunder shall operate as a waiver of any other right or remedy that party may have hereunder. 27. Amendments: This Agreement may be modified or amended only by a written document executed by both BVNA and the City. 28. Entire Agreement: This Agreement constitutes the complete and exclusive statement of Agreement between the City and BVNA. All prior written and oral communications, including correspondence, drafts, memoranda, and representations, are superseded in total by this Agreement. 29. Termination: Upon termination,BVNA shall be entitled to compensation for Services performed up to the effective date of termination. BVNA will deliver to the City all data,work product,reports and documents produced under this Agreement within ten(10)days after the effective date of termination. (a) Termination by the City: Should the performance of Services under this Agreement be unacceptable to the City,for any reason and in the City's sole discretion,the City may terminate this Agreement effective immediately on written notice to BVNA. Alternatively,the City may request that BVNA propose a replacement Building Inspector to complete the Services described in the Statement of Work. (b) Termination by BVNA: BVNA may terminate this Agreement for cause effective immediately upon written notice to the City. If BVNA terminates without cause, BVNA will provide the City with a thirty(30)day transition period from the date of notice of termination to allow the City sufficient time to secure a new service provider. During this transition period, BVNA and City's responsibilities under this Agreement will remain in full force and effect. At the end of the thirty(30)day transition period BVNA will cease all activities. In the event the City shall request BVNA to continue to provide any Services beyond the expiration of the transition period, including any extensions,then BVNA and the City may negotiate in good faith terms of any such extension,including the pricing of Services. 30. Interpretation of Agreement: This Agreement shall be interpreted as though prepared by all parties and shall not be construed unfavorably against either party. 31. Severability of Agreement: If any provision or provisions of this Agreement shall be held to be invalid, illegal, unenforceable or in conflict with the laws of any jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be effected and shall remain in full force and effect. In witness whereof the City of Bozeman and BVNA have executed this Agreement effective on the date set forth above. FOR BVNA: FOR CITY OF BOZEMAN: k� Signature:, Signature: �, t / ` > Printed: Michael Vieira Printed: Title: Operations Manager Title: ���_ C�\ CoYlml Date: 6/23/2014 Date: (Z. 2714' 1 Professional Services Agreement For Building Inspection Services Page 5 of 7 ATTACHMENT A STATEMENT OF WORK NO.1 This Statement of Work is entered into by and between Bureau Veritas North America, Inc.,(herein called"BVNA"),and the City of Bozeman,Montana(herein called"City")pursuant to the Professional Services Agreement dated the of June,2014 (the"Agreement"),and is incorporated in the Agreement by reference. Inspection Services BVNA shall provide a Building Inspector to perform building inspection services to verify substantial compliance with approved plans and jurisdiction adopted codes and regulations. Building inspection services will be provided in accordance with accepted standards of practice for governmental inspection and in conformance with the policies, procedures, interpretations,and practices of the City. The Building Inspector will be placed with the City on a full-time,temporary basis in accordance with the requirements of the City. BVNA will provide background information regarding the proposed Building Inspector's experience and professional capabilities to the City prior to commencement of Services and the City retains the right to approve or reject the proposed Building Inspector for any reason. The Building Inspector provided by BVNA shall perform the following services: Become familiar with approved project plans and documents prior to inspection. Conduct site inspection using safe work practices. Identify areas of non-compliance. Prepare correction notice and/or discuss non-complying items and solutions with jobsite superintendent. For serious violations, notify Building Official and issue stop work notice in accordance with City policies and procedures. Provide reinspections as necessary to address non-complying items. Provide inspection records in accordance with jurisdiction policies and procedures. When requested by the City, coordinate inspections with fire,health, and other government agencies,as applicable to the project. Professional Services Agreement For Building Inspection Services Page 6 of 7 ATTACHMENT B SCHEDULE OF FEES Our pricing reflects our commitment to the success of your project by helping you maintain significant quality and cost saving benefits moving forward. These include: Quick inspection response time Commitment to maintain a proposed rate structure for the life of the initial contract period Highly qualified staff Confidence of working with a well-established consultant in business for 185+years Next day inspections Same day inspections for urgent matters Option for percentage of fee for plan review services Hourly rates for project personnel are outlined below: Staff level Clascificationc Hourly Billing Rate* Senior Building Inspector $80 Building Inspector $70 Permit Technician $65 Additional Services Available Upon Request *Overtime will be an additional 25%of the fees shown above Professional Services Agreement For Building Inspection Services Page 7 of 7