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HomeMy WebLinkAbout14- Alsco Supplier for Area Rug Supplier , ; •:•:-_:t$8 - t{ 4t+ PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this 15th day of July, 2014, by and between the CITY OF BOZEMAN, MONTANA, a self-governing municipal corporation organized and existing under its Charter the laws of the State of Montana, 121 North Rouse Street, Bozeman Montana, with a Mailing Address, P.O. Box 1230, Bozeman, Montana 59771, hereinafter referred to as "City," and, Alsco, P.O. Box 30496, Billings, MT 59107, Physical Address, 348 Calhoun Lane,Billings,MT 59107, hereinafter referred to as"Supplier." 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: City agrees to enter this Agreement with Supplier to perform for'City services described in the Service Agreement for each municipal building attached hereto as Schedule "A" and by this reference made a part hereof. A 2. Effective Date: This Agreement is effective upon the date of its execution and will terminate on the 31 day of March, 2019. 3: Scone of Work: Supplier will perform the work and provide the services-in accordance with the requirements of this Contract and the schedule of work that may c, , ge often the rugs in each of the buildingare changed out. (The fre- `;•1'4: c throughout the year on how g g $,;,,.. Y and work schedule). 4.. Payment: City agrees to pay Supplier the amount specified in the Service Agreement for each location where services are provided. Any alteration or deviation from the described services that involves additional costs above the Agreement amount will be performed by Supplier after, only after, written request by the City, and will become an additional charge over and above the amount listed in the Service Agreement. The City must agree in writing upon any additional charges. 5. Supplier's Representations: To induce City to enter into this Agreement, Supplier makes the following representations: a. Supplier has familiarized itself with the nature and extent of this Agreement, the Professional Services Agreement for Area Rug Supply Contract Page 1 of 13 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. Supplier represents and warrants to City 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 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 City will not determine or exercise control as to general procedures or formats necessary to have these services meet this warranty. 6. Independent Contractor Status/Labor Relations: The parties agree that Supplier is an independent contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Supplier is not subject to the terms and provisions of the City's personnel policies handbook and may not be considered a City employee for workers' compensation or any other purpose. Supplier is not authorized to represent the City or otherwise bind the City in any dealings between Supplier and any third parties. Supplier 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. Supplier shall maintain workers' compensation coverage for all members and employees of Supplier's business, except for those members who are exempted by law. Supplier shall furnish the City 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. Supplier 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. In performing the services under this Agreement, Supplier shall give preference to the employment of bona fide residents of Montana, as required by §18-2-403, MCA, and as such, term is defined by §18-2-401(1), MCA. When making assignments of work, Supplier shall use workers both skilled in their trade and specialized in their field of work for all work to which they are assigned. Professional Services Agreement for Area Rug Supply Contract Page 2 of 13 Pursuant to §§18-2-403 and 18-2-422, MCA, Supplier shall pay wages, benefits, and expenses as set forth in the Montana Prevailing Wage Rage for Non Construction Services, effective February 1, 2013 and applicable to Gallatin County, Montana which schedule is incorporated herein. Supplier shall pay all hourly wage employees on a weekly basis. Violation of the requirements set forth in the above State of Montana schedule of prevailing wage rates may subject the Supplier to the penalties set forth in §18-2-407, MCA. Supplier shall maintain such payroll records during the term of this Agreement, the course of the work on the Area Rug Project, and for a period of three (3) years following the date of final completion of the Area Rug Project and termination of this Agreement. In the event that, during the term of this Agreement, any labor problems or disputes of any type arise or materialize which in turn cause any services to cease for any period of time, Supplier 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 Supplier shall take to services shall be left to the discretion of Supplier; provided, however, that Supplier shall bear all costs of any related legal action. Supplier shall provide immediate relief to the City so as to permit the services to continue at no additional cost to City. Supplier 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. 7. Indemnity/Waiver of CIaims/Insurance: For other than professional services rendered, to the fullest extent permitted by law, Supplier agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney's fees and the costs and fees of and expert witness and consultants), losses, expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional misconduct of the Supplier; (ii) any negligent, reckless, or intentional misconduct of any of the Supplier's agents; or (iii) the negligent, reckless, or intentional misconduct of any other third party. Professional Services Agreement for Area Rug Supply Contract Page 3 of 13 For the professional services rendered, to the fullest extent permitted by law, Supplier agrees to indemnify and hold the City 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 Supplier or Supplier'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). Supplier'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 Supplier to assert its right to defense or indemnification under this Agreement or under the Supplier'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 Supplier 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. Supplier also waives any and all claims and recourse against the City 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. In addition to and independent from the above, Supplier shall at Supplier's expense secure insurance coverage 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 Supplier in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Supplier in subsection(a) of this Section. Professional Services Agreement for Area Rug Supply Contract Page 4 of 13 The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the City without limit and without regard to the cause therefore and which is acceptable to the City and Supplier shall furnish the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows: • Workers' Compensation—statutory; • 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; and • Automobile Liability - $1,000,000 property damage/bodily injury; $2,000,000 annual aggregate. The City of Bozeman, its officers, agents, and employees, shall be endorsed as an additional or named insured on a primary non-contributory basis on both the Commercial General and Automobile Liability policies. The insurance and required endorsements must be in a form suitable to City and shall include no less than a ten (10) day notice of cancellation or non-renewal. The City must approve all insurance coverage and endorsements prior to the Supplier commencing work. Supplier shall notify City within two (2) business days of Supplier's receipt of notice that any required insurance coverage will be terminated or Supplier's decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to the Supplier commencing work. 8. Termination for Supplier's Fault: a. If Supplier 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 Supplier's right to proceed with all or any part of the work ("Termination Notice Due to Supplier's Fault"). The City may then take over the work and complete it, either with its own resources or by re-letting the contract to any other third party. b. In the event of a termination pursuant to this Section 8, Supplier shall be entitled to payment only for those services Supplier actually rendered. Professional Services Agreement for Area Rug Supply Contract Page 5 of 13 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, Supplier 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. 9. 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 under this Agreement. The City may terminate this Agreement by written notice to Supplier ("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 Supplier. b. Upon receipt of the Notice of Termination for City's Convenience, unless otherwise directed in the Notice, the Supplier shall immediately cease work 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 City. Supplier shall do only such work as may be necessary to preserve, protect, and maintain work already completed, in progress, or in transit to the various municipal sites. c. In the event of a termination pursuant to this Section 13, Supplier is entitled to payment only for those services Supplier actually rendered on or before the receipt of the Notice of Termination for City's Convenience. d. The compensation described in Section 13(c) is the sole compensation due to Supplier for its performance of this Agreement. Supplier 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. Professional Services Agreement for Area Rug Supply Contract Page 6 of 13 10. Limitation on Supplier's Damages; Time for Asserting Claim: a. In the event of a claim for damages by Supplier under this Agreement, Supplier's damages shall be limited to contract damages and Supplier 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 Supplier wants to assert a claim for damages of any kind or nature, Supplier 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 Supplier fails to provide such notice, Supplier shall waive all rights to assert such claim. 11. Representatives: a. City's Representative: The City's Representative for the purpose of this Agreement shall be James Goehrung (Facilities Superintendant) or such other individual as City shall designate in writing. 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, Supplier 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. Supplier's Representative: The Supplier's Representative for the purpose of this Agreement shall be or such other individual as Supplier shall designate in writing. Whenever direction to or communication with Supplier is required by this Agreement, such direction or communication shall be directed to Supplier's Representative; provided, however, that in exigent circumstances when Supplier's Representative is not available, City may direct its direction or communication to other designated Supplier personnel or agents. Professional Services Agreement for Area Rug Supply Contract Page 7 of 13 12. Permits: Supplier shall provide all notices, comply with all applicable laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and inspections from applicable governmental authorities, pay all fees and charges in connection therewith, and perform all surveys and locations necessary for the timely completion of the Area Rug Project. 13 Laws and Regulations: Supplier 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. 14. Nondiscrimination: The Supplier will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Supplier 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 Supplier 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 Supplier shall require these nondiscrimination terms of its sub- Suppliers providing services under this agreement. 15. Intoxicants; DOT Drug and AIcohol Regulations/Safety and Training: Supplier 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. Supplier 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 Supplier shall be responsible for instructing and training the Supplier's employees and agents in proper and specified work methods and procedures. The Supplier shall provide continuous inspection and supervision of the work performed. The Supplier is responsible for instructing his employees and agents in safe work practices. Professional Services Agreement for Area Rug Supply Contract Page 8 of 13 16. Modification and Assignability: This document contains the entire agreement between the parties and no statements, promises or inducements made by either party or agents of either party, which are not contained in this written Agreement,may be considered valid or binding. This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Supplier may not subcontract or assign Supplier'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. 17. Reports/Accountability/Public Information: Supplier agrees to develop and/or provide documentation as requested by the City demonstrating Supplier's compliance with the requirements of this Agreement. Supplier shall allow the City, its auditors, and other persons authorized by the City to inspect and copy its books and records for the purpose of verifying that the reimbursement of monies distributed to Supplier pursuant to this Agreement was used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The Supplier shall not issue any statements, releases or information for public dissemination without prior approval of the City. 18. 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. 19. 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. 20. Taxes: Supplier is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. 21. 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. Professional Services Agreement for Area Rug Supply Contract Page 9 of 13 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. 22. Survival: Supplier's indemnification shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 23. 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. 24. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 25. 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. 26. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 27. 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. 28. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 29. 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. 30. Hours During Which Work is to be Performed: The work under this Agreement is to be performed at times that are not excessively disruptive to the department in the various municipal buildings. The hours will be established by the Supplier and conveyed to the City's Representative. Hours will reflect the limitation of work hours established by Chapter 16, Article 6, Bozeman Professional Services Agreement for Area Rug Supply Contract Page 10 of 13 Municipal Code. Where possible, consideration will be given for adjoining property owners so as not to disrupt their activities. Specific hours will be agreed to prior to the commencement of services and any deviation from this schedule will be approved by the City's Representative. 31. EmerEencv Call Out: In the event of an emergency,the Supplier will be notified by the City's Representative and may be requested to provide immediate service. For emergency services, payment shall be performed at a cost not greater than one and one-half times the standard hourly rate. 32. ChanEes in Sauare Foota6es of Buildings Served: Any changes in square footages in any of the buildings served under this Agreement shall be forwarded by the City to the Supplier at least thirty days prior to any change in services to be provided. The addition or deletion of square footages shall be accommodated by adjusting the cost per facility on a cost-per-square-foot basis, per the amounts bid for each building. Buildings that are closed or sold by the City will be in the same category as a change in square footage. 33. Supervision,Inspection, and Complaints: Any supervision, inspection, or complaints received by the Supplier during the term of the contract should be directed from or through the City's Representative, and is required to be in writing. Services found to be incomplete, defective or not accomplished as scheduled will be reported to the Supplier for appropriate corrective action. If the existing problem constitutes a hazard or unsafe condition, corrective action shall be immediate, at no additional expense to the City. Otherwise the Supplier shall take corrective action during the next work period. A written report of the problem shall be filed and a copy given to the Supplier for his/her record and response. Supplier's written and signed response will then be attached to file copy. Repetitive nonconformity in any one area or consistent overall nonconformance to workmanship and standards may result in termination of the contract and/or other action as deemed necessary by the City. The Owner shall retain the right to determine whether an adequate level of service and workmanship is being maintained. 34. Supplies and Eauipment. The Supplier shall furnish all supplies and equipment necessary for accomplishment of all services. 35. Maintenance of Eauipment. All Supplier supplies, equipment, and machines shall be kept out of traffic lanes, (except when moving material), or other areas where they might pose a hazard and shall be secured or removed from the premises at the end of each work period. Professional Services Agreement for Area Rug Supply Contract Page 11 of 13 36. Maintaining of Supplier's Log. The Supplier shall maintain a daily log for each facility,for each day of service showing the following information: • Names of authorized Supplier's employees. • Time of entry and departure. • Note any safety or security problems that arise. The Supplier's daily log shall be assembled on a monthly basis and provided to the City upon request if concerns or issues come up for corrective action. 37. Owner's Log. The City shall compile a written log of the deficiencies in the Supplier's service. Supplier shall file a written response no later than ten (10) days after observing the deficiencies. Daily services found to be incomplete, defective, or not accomplished as scheduled will be reported to the Supplier, to ensure non-recurrence. Services other than everyday services reported incomplete, defective or not accomplished as scheduled will be reported to the Supplier for prompt corrective action by the Supplier and will be acceptably completed or corrected within the time schedule as determined by the City. Upon failure to accomplish the corrective action in a timely manner the owner reserves the right to schedule the work and charge the Supplier for the costs incurred. 38. Equipment. The Supplier shall furnish all supplies and equipment necessary for accomplishment of all work as specified and all equipment shall be kept out of traffic lanes, (except when moving material), or other areas where they might pose a hazard and shall be secured or removed from the premises at the end of each work period. *** END OF AGREEMENT EXCEPT FOR SIGNATURES k*** Professional Services Agreement for Area Rug Supply Contract Page 12 of 13 IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first above written. CITY OF BOZEMAN, MONTANA � (� S PPLI ype Name Above) By C4I By i /7 ,//7- Chris Kukulski, City Manager Print Name: Print Title: ` C© APPROVED AS TO FORM: By i 116 Greg S van, Bozeman City Attorney Professional Services Agreement for Area Rug Supply Contract Page 13 of 13