HomeMy WebLinkAbout13 PSA Design 9Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Scott McMahan, Information Technology Manager David Fine, Economic Development Specialist
SUBJECT: Authorize the City Manager to sign a professional services agreement with
Design Nine, Inc. for specialized fiber optic engineering services, not to exceed $5,000, for a planned and budgeted (FY15) conduit, vault, and fiber project to connect City facilities along North Montana Street.
MEETING DATE: December 8, 2014
AGENDA ITEM TYPE: Consent
RECOMMENDATION:
Authorize the City Manager to sign a professional services agreement with Design Nine, Inc. SUGGESTED MOTION: I move to authorize the City Manager to sign a professional services
agreement with Design Nine, Inc.
BACKGROUND: The Public Works Department and Information Technology (IT) Division planned to connect
City Hall, City Water Shops, and County Emergency Operations Center (EOC) facility with
dedicated fiber connections prior to the mill and overlay of Montana Street in spring 2015. This
project was included in the FY 2015 budget. Engineering of the project was to be done internally. The IT department would like to connect the EOC to the shops complex prior to completion of the Montana Street project to facilitate a more robust connection for the SCADA
wireless radio network.
The Economic Development Department is concurrently working with Design Nine on a Bozeman Fiber Master Plan that contemplates dedicated fiber connections to City facilities. The thoughtful stewardship of City resources necessitates the coordination of these projects,
specifically, that planned City conduit and fiber installations meet the build standards that will be
recommended by the draft Bozeman Fiber Master Plan. This contract allows Design Nine to
consult on an hourly basis, not to exceed $5,000, as necessary to ensure that proposed conduit and fiber projects can complement future projects.
UNRESOLVED ISSUES: None at this time.
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ALTERNATIVES: As suggested by the City Commission.
FISCAL EFFECTS: $125,000 in funding for the North Montana Street fiber project was included in the FY 2015 budget within the Water Fund. This contract is for work performed on an hourly basis, not to exceed $5,000.
Attachments: Professional Services Agreement with Design Nine, Inc.
Report compiled on: November 21, 2014
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Professional Services Agreement for Specialized Fiber Optic Consulting Services
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PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this 8th day of December, 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, Design Nine, Inc., with a mailing address of 2000 Kraft
Drive, Suite 2180, Blacksburg, VA 24060, 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 30 day of June 2014.
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 hourly rates for consulting services
specified in the Scope of Services not to exceed $5000. 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.
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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.
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
connection with any labor problems or disputes or any delays or stoppages of work associated with
such problems or disputes.
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Contractor shall post a legible statement of all wages and fringe benefits to be paid to the
Contractor’s employees and the frequency of such payments (i.e., hourly wage employees shall be
paid weekly). Such posting shall be made in a prominent and accessible location at the Contractor’s
normal place of business and shall be made no later than the first day of services provided under
this Agreement. Such posting shall be removed only upon expiration or termination of this
Agreement.
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 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.
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Should any indemnitee described herein be required to bring an action against the Contractor
to assert its right to defense or indemnification under this Agreement or under the Contractor’s
applicable insurance policies required below the indemnitee shall be entitled to recover reasonable
costs and attorney fees incurred in asserting its right to indemnification or defense but only if a
court of competent jurisdiction determines the Contractor was obligated to defend the claim(s) or
was obligated to indemnify the indemnitee for a claim(s) or any portion(s) thereof.
In the event of an action filed against City resulting from the City’s performance under this
Agreement, the City may elect to represent itself and incur all costs and expenses of suit.
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; $2,000,000 annual aggregate;
Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual
aggregate;
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Automobile Liability - $1,000,000 property damage/bodily injury; $2,000,000
annual aggregate; and
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
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.
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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 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
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 13, 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
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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 Representative: The City’s Representative for the purpose of this
Agreement shall be David Fine, (Economic Development Specialist), or 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 David
Fine as the City’s Representatives 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 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, 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.
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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
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
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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: 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.
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.
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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.
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. Extensions: this Agreement may, upon mutual agreement, be extended for a
period of one year by written agreement of the Parties. In no case, however, may this Agreement run
longer than June 30, 2016.
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**** END OF AGREEMENT EXCEPT FOR SIGNATURES ****
IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and
year first above written.
CITY OF BOZEMAN, MONTANA ____________________________________
CONTRACTOR (Type Name Above)
By________________________________ By__________________________________
Chris Kukulski, City Manager
Print Name:
Print Title: ____________________________
APPROVED AS TO FORM:
By_______________________________
Greg Sullivan, Bozeman City Attorney
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ATTACHMENT A:
SCOPE OF SERVICES
Contractor will provide the City with specialized fiber optic engineering consulting services and
other specialized services on an hourly basis, as directed by written task order, to ensure that
ongoing fiber optic conduit, vault, and fiber projects being contemplated by the City meet the
engineering standards and specifications that will be recommended by the Bozeman Community Fiber Master Plan.
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 $5000.00 as in the manner approved and set forth as agreed upon.
Each specific service the Contractor will provide under this contract, and the maximum amount that
the City will pay the Contractor for each of these services is set forth in the following Fee Schedule.
Normal and ordinary travel expenses may also be billed as part of this contract with appropriate documentation. 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.
Hourly Rates
Work will be billed at the rates below, as directed per written task 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
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