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PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this 6°i day of October, 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, Project WET (Water Education for Teachers) Foundation,
1001 Oak St#210, Bozeman, Mt 59715, hereinafter referred to as "Contractor."
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 Contractor to perform for City
services described in the Scope of Services attached hereto as Attachment "A" and by this reference
made a part hereof.
2. Term/Effective Date: This Agreement is effective upon the date of its execution
and will terminate on the 15°i day of May, 2015. All partner engagement and activities development
shall be completed prior to December 31, 2014, All metrics development, teacher workshops, and
distribution of digital modules shall be completed prior to March 31, 2015. All distribution of
booklets and classroom implementation shall be completed prior to May 15, 2015.
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.
4. Payment: City agrees to pay Contractor the amount specified in the Scope of
Services set forth in Attachment A incorporated herein by this reference. 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 City must agree in writing
upon any additional charges.
Professional Services Agreement for Project WET Foundation Bozeman Water Education Pilot Project for the City of
Bozeman, Department of Public Works
FY 2015
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5. Contractor's Representations: To induce City 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 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.
C. Contractor represents and warrants it has the organizational capacity to keep
information regarding the City's water customers confidential as required by Section 17.
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 City for any purpose. Contractor 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. Contractor is not authorized to represent the City or otherwise
bind the City 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 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.
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
Professional Services Agreement for Project WET Foundation Bozeman Water Education Pilot Project for the City of
Bozeman, Department of Public Works
FY 2015
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connection with any labor problems or disputes or any delays or stoppages of work associated with
such problems or disputes.
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 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
Contractor; (ii) any negligent, reckless, or intentional misconduct of any of the Contractor's agents;
or(iii)the negligent, reckless, or intentional misconduct of any other third party.
For the professional services rendered, to the fullest extent permitted by law, Contractor
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 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 City.
Should any indemnitee described herein be required to bring an action against the Contractor
to assert its right to defense or indemnification under this Agreement or under the Contractor's
applicable insurance policies required below the indemnitee shall be entitled to recover reasonable
costs and attorney fees incurred in asserting its right to indemnification or defense but only if a
court of competent jurisdiction determines the Contractor was obligated to defend the claim(s) or
was obligated to indemnify the indemnitee for a claim(s) or any portion(s)thereof.
Professional Services Agreement for Project WET Foundation Bozeman Water Education Pilot Project for the City of
Bozeman, Department of Public Works
FY 2015
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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.
Contractor 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, Contractor shall at Contractor'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 Contractor in this Section. The insurance coverage shall not contain any
exclusion for liabilities specifically assumed by the Contractor in subsection (a) of this Section.
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 Contractor
shall furnish to 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;
• Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual
aggregate;
• Automobile Liability- $1,000,000 property damage/bodily injury;
• Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate.
The above amounts shall be exclusive of defense costs. 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 sixty (60) day notice of cancellation or non-renewal. The City must approve all insurance
coverage and endorsements prior to the Contractor commencing work. Contractor shall notify City
Professional Services Agreement for Project WET Foundation Bozeman Water Education Pilot Project for the City of
Bozeman,Department of Public Works
FY 2015
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within two (2) business days of Contractor's receipt of notice that any required insurance coverage
will be terminated or Contractor's decision to terminate any required insurance coverage for any
reason.
The City must approve all insurance coverage and endorsements prior to the
Contractor commencing work.
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 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, 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 costs, or lost profits
damages of any nature arising, or claimed to have arisen, as a result of the termination.
9. Termination for Citv's Convenience:
a. Should conditions arise which, in the sole opinion and discretion of the City,
make it advisable to the City to cease performance under this Agreement City may terminate
this Agreement by written notice to Contractor ("Notice of Termination for City's
Convenience"). The termination shall be effective in the manner specified in the Notice of
Termination for City's Convenience and shall be without prejudice to any claims that the
City may otherwise have against Contractor.
b. Upon receipt of the Notice of Termination for City's Convenience, unless
otherwise directed in the Notice, the Contractor shall immediately cease performance under
Professional Services Agreement for Project WET Foundation Bozeman Water Education Pilot Project for the City of
Bozeman,Department of Public Works
FY 2015
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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. 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 1.3, Contractor is
entitled to payment only for those services Contractor 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
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 City with written notice of its claim, the facts and
circumstances surrounding and giving rise to the claim, and the total amount of damages
sought by the claim, within ten (10) days of the facts and circumstances giving rise to the
claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights
to assert such claim.
11. Representatives:
a. City's Represcntative: The City's Representative for the purpose of this
Agreement shall be Lain Leoniak, (Water Conservation Specialist) 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
Professional Services Agreement for Project WET Foundation Bozeman Water Education Pilot Project for the City of
Bozeman, Department of Public Works
FY 2015
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submission shall be directed to Lain Leoniak 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. Contractor's Representative: The Contractor's Representative for the
purpose of this Agreement shall be John Etgen (Senior Vice President) or such other
individual as Contractor shall designate in writing. Whenever direction to or
communication with Contractor is required by this Agreement, such direction or
communication shall be directed to Contractor's Representative; provided, however, that in
exigent circumstances when Contractor's Representative is not available, City may direct its
direction or communication to other designated Contractor personnel or agents.
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.
14. 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
Professional Services Agreement for Project WET Foundation Bozeman Water Education Pilot Project for the City of
Bozeman. Department of Public Works
FY 2015
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promulgated thereunder. The Contractor shall require these nondiscrimination terms of its sub-
Contractors providing services under this agreement.
15. 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.
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.
16. 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.
17. Reports/Accountability/Public Information/Confidentiality: Contractor agrees to
develop and/or provide documentation as requested by the City demonstrating Contractor's
compliance with the requirements of this Agreement. Contractor 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 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 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.
Professional Services Agreement for Project WET Foundation Bozeman Water Education Pilot Project for the City of
Bozeman. Department of Public Works
FY 2015
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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: Contractor 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.
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: Contractor'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.
26. Binding Effect: This Agreement is binding upon and inures to the benefit of the
heirs, legal representatives, successors, and assigns of the parties.
Professional Services Agreement for Project WET Foundation Bozeman Water Education Pilot Project for the City of
Bozeman, Department of Public Works
FY 2015
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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.
IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and
year first above written.
CITY OF BOZEMAN, MONTANA Project WET Foundation
CONTRACTOR
ByQ�� By
Chris Kukulski, City Manager Pint ame: Dennis qclson
Print Title: President and CEO
APPROVED AS TO FORM:
By
Greg ullivan, Bozeman City Attorney
Professional Services Agreement for Project WET Foundation Bozeman Water Education Pilot Project for the City of
Bozeman,Department of Public Works
FY 2015
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ATTACHMENT A
Scope of Services
Project WET Foundation Bozeman Water Education Pilot Project
I. Introduction
This document outlines the tasks to be completed by Project WET(Water Education
for Teachers) Foundation, (hereinafter"Contractor")for the Bozeman Water
Education and Outreach Pilot Project for the City of Bozeman, Department of Public
Works (hereinafter"City"), 20 East Olive Street Bozeman, Montana 59715 between
September 15, 2014 and May 15, 2015.
II. Description
The City requires an organization with the skills and expertise to develop a pilot
project that provides training workshops to educators on water topics so that those
educators can reach children with objective, experiential, science-based water
education (hereinafter"project").
The project will focus on the development and implementation of activities and
booklets that present complex concepts related to watersheds, water conservation and
stormwater to educators via lessons plans that are relevant, accessible and positive
experiences for young learners.
Goals: The City will use the project to start a critical conversation with local teachers
and students about:
(a) Where Bozeman's water comes from, how it is used and where it goes;
(b) Impacts to water quantity and quality as a result of those uses and
precipitation events;
And
(c) The power each of us has to insure that there is water in sufficient quantity
and quality for us and all of the other species who depend on these water
supplies.
Objectives: To enable the City to accomplish its goals, the project should achieve the
following objectives:
(a) Establish and develop partnerships with local public education institutions;
(b) Provide customized watershed,water conservation and stormwater education
workshops for local teachers;
(c) Facilitate implementation of classroom units pertaining to the aforementioned focus
areas in local classrooms,
(d) Measure program effectiveness;
(e) Share results and highlight successes for future expansion.
Topics to be covered in the project include but are not limited to:
(i) Bozeman Watersheds:
a. Description-Water Cycle
b. Habitats
c. Protection
d. Restoration
(ii) Water Conservation
a. Value of Water
b. Water Uses/Conservation Practices
c. Environmental Benefits
d. Positive impacts to water quality
(iii)Stormwater
a. Detailed Description
b. Sources of Pollution
c. Environmental Impacts
d. Preventative Practices
The Tasks outlined below represent a complete proposed Scope of Work.At its discretion,
City will authorize individual tasks and/or sub-tasks.The Contractor shall prepare a Work
Plan and schedule for each task or sub-task which will be submitted to City.
III. Proposed Scope of Work
The proposed scope of work is intended to provide a means in which to develop and
introduce customized, science-based activities related to watersheds, water
conservation and stormwater in three area classrooms on or before May 15, 2015.
The project is to be of such a quality that it can serve as the basis for implementation
in subsequent years in other area classrooms and to expand City's student education
and outreach campaigns relating to watersheds,water conservation and stormwater.
Contractor will work with City to develop metrics for key stakeholders in order to
measure the project's effectiveness and determine form and substance for future
projects.
All work product generated as a result of the project shall be provided to City and in a
format that allows for City's future use and distribution.
Task One: Activities Development
Contractor shall customize four to five existing Project WET activities that directly
relate to Bozeman's watersheds, water conservation and stormwater focus areas. This
will occur with guidance from City and shall be completed on or before December
31, 2014.
Task Two: Partnership Development and Enga eg_ment
Contractor shall engage in outreach and engagement to area elementary/middle
school administrators and teachers and other key stakeholders in coordination with
City and select three appropriate classrooms for project implementation. This task
shall be completed on or before December 31, 2014.
Task Three: Metrics Development
In consultation with City, Contractor shall develop a series of metrics in which to
evaluate key stakeholders at various stages of the process to determine the
effectiveness of project development, teacher training, classroom implementation and
changes within stakeholder groups in knowledge, beliefs and attitudes about local
watersheds, water conservation and stormwater impacts and management. This task
shall be completed on or before March 31, 2015.
Task Four: Teacher Workshops
In coordination with City, Contractor shall develop and conduct teacher workshops
that cover the subject areas. This task shall be completed on or before March 31,
2015.
Task Five: Digital Module
Contractor shall provide to teachers and City, a digital module containing all
activities and relevant materials. This module shall be made available for review and
distribution to the City on or before December 31, 2014 and distributed to key
stakeholders on or before March 31, 2015.
Task Six: KIDS Activities Booklets
Contractor shall provide and distribute sufficient quantities of existing KIDS activity
booklets in appropriate titles including but not limited to Watershed Protection,
Conserve Water and Stormwater to selected pilot classrooms. Task Six shall be
completed on or before May 15, 2015.
Task Seven: Classroom Implementation
Contractor and City shall facilitate the implementation of the activities in the pilot
classrooms to observe and document teachers' and students' levels of engagement
with the activities. This task shall be completed on or before May 15, 2015.
Total project costs shall not exceed: $10,000.00