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HomeMy WebLinkAbout15- FULL RFP Evaluation of Districts Request for Proposals for Professional Services FY 2014 – FY 2015 1 of 19 Request for Proposals For PROFESSIONAL SERVICES TO CONDUCT AN EVALUATION OF BOZEMAN’S NEIGHBORHOOD CONSERVATION OVERLAY DISTRICT AND ITS EFFECT ON AFFORDABLE HOUSING, URBAN RENEWAL HISTORIC PRESREVATION AND RESIDENTIAL INFILL Proposals must be received no later than: Monday, January 12, 2015 @ 5:00 pm Email OR Deliver proposal to: Stacy Ulmen, City Clerk PO Box 1230 121 North Rouse Ave Suite 202 Bozeman, MT 59771 agenda@bozeman.net Request for Proposals for Professional Services FY 2014 – FY 2015 2 of 19 NOTICE IS HEREBY given that the City of Bozeman is requesting proposals from qualified consultants to conduct an evaluation of the City’s Neighborhood Conservation Overlay District (NCOD), to determine the impacts and long term viability of the district with regard to affordable housing, urban renewal, historic preservation and residential infill; and provide alternatives to existing and potentially new or revised regulations and policies. All proposals must be in the format specified, enclosed in a sealed envelope and clearly identified with RFP title, company name and due date. Deliver proposals via email at agenda@bozeman.net or to the City Clerk at the following address PO Box 1230, 121 North Rouse Ave, Suite 202, Bozeman, MT 59771 by Monday, January 12, 2015 @ 5:00p.m. It is the sole responsibility of the proposing firm to ensure that proposals are received prior to the closing time as late submittals will not be accepted and will be returned unopened. DISCRIMINATION Discrimination in the performance of any agreement awarded under this RFP on the basis of race, color, religion, creed, sex, age, marital status, national origin, or actual or perceived sexual orientation, gender identity or disability is prohibited. This prohibition shall apply to the hiring and treatment of the awarded entity’s employees and to all subcontracts. As such, each entity submitting under this notice shall include a provision wherein the submitting entity, or entities, affirms in writing it will not discriminate on the basis of race, color, religion, creed, sex, age, marital status, national origin, or because of actual or perceived sexual orientation, gender identity or disability and which also recognizes the eventual contract will contain a provision prohibiting discrimination as described above and that this prohibition on discrimination shall apply to the hiring and treatment of the submitting entity’s employees and to all subcontracts. Failure to comply with the above shall be cause for the City to deem the submittal non- responsive. The City of Bozeman is required to be an Equal Opportunity Employer DATED at Bozeman, Montana, this 10TH day of December, 2014 Stacy Ulmen, CMC City Clerk Request for Proposals for Professional Services FY 2014 – FY 2015 3 of 19 INTRODUCTION The City of Bozeman is requesting proposals from qualified consultants to conduct an evaluation of the City’s Neighborhood Conservation Overlay District (NCOD), to determine the impacts and long term viability of the district with regard to affordable housing, urban renewal, historic preservation and residential infill; and provide alternatives to existing and potentially new or revised regulations and policies. BACKGROUND INFORMATION The City of Bozeman is looking to undertake a holistic review of the Neighborhood Conservation Overlay District, (NCOD), to determine the impacts and long term viability of the district with regard to affordable housing, urban renewal, historic preservation and residential infill. Implemented in 1991, the Neighborhood Conservation Overlay District (NCOD) was a proactive planning measure. The NCOD is a mixed use and mixed income area spanning historic worker housing, commercial properties, homes for many university students and staff, and gentrified areas of substantial homes. The NCOD takes a singular approach to dual objectives; the conservation of neighborhood character and protection of cultural resource. Both efforts are enacted through the Certificate of Appropriateness (COA) process, which applies the same criteria and guidelines unilaterally to regulate private property development. This project seeks to objectively evaluate the NCOD’s effectiveness and continued necessity in light of the increasing disappearance, through demolition, subdivision or wholesale alteration of housing within the district. Changes in the character of housing within the northern portion of the NCOD in what has historically been a housing stock that is affordable to households earning 100% or less of area median income is impacting the character of all or parts of the district. Please see attached map of the NCOD. The NCOD has successfully stabilized the commercial and residential neighborhoods around Bozeman’s core area, which has in turn encouraged privately funded reinvestment and rehabilitation of properties. The COA process enables the appropriate replacement of dilapidated structures beyond repair. However, the real estate value in these areas is creating an environment where the land is more valuable than many of the small historic homes. Some of the homes have been allowed to deteriorate in order to facilitate demolition. The NCOD has two Tax Increment Finance Districts within its boundary, which have further stabilized the tax base and facilitated reinvestment in public infrastructure previously absent in the area. Though initiated to protect potential historic districts, a new historic district nomination has Request for Proposals for Professional Services FY 2014 – FY 2015 4 of 19 not been generated within the NCOD since 1995, when the Northern Pacific/ Story Mill District was added. Staff’s efforts to implement the requirements of the COA review process have precluded the staff from working with the community to identify new historic properties for recognition. However, by requiring the application of rehabilitation standards the NCOD has effectively had the regulatory effect of a historic district but not the clearly defined commonalities of character usually associated with a formally recognized district. Historic districts often have the effect of increasing property values. Success in increasing property value has resulted in the historic neighborhoods becoming exclusive and largely unaffordable areas. The NCOD requires the City to make quasi-judicial land-use decisions based on the Montana Historical and Architectural Inventory. Completed in the mid 1980's, the Inventory evaluated each property's eligibility for consideration as historic. Where it exists, this data set is now outdated. In many cases, an Inventory was not created for areas now included in the NCOD, leaving private property owners uncertain as to how the City will review COA applications. Please see, Image: “dots” project showing which areas of the NCOD do not have an Inventory created. Before investing substantial public funds in a revised cultural resources survey, the City of Bozeman wants to consider the public’s return on investment by evaluating the program's effectiveness and to determine if continuing the program will enhance the neighborhoods or result in the unintended consequence of pushing affordable housing to the further reaches of the city. It is proper to investigate whether more efficient methods of protecting cultural resources and conserving neighborhood character exist. Neighborhood character is about more than the built environment, and consideration of the effect of the NCOD has not been assessed. The City will begin updating the Community Growth Policy in 2014/2015 and can include findings of this project in the recommendation to the City Commission. The City of Bozeman, Montana (the City) is located in Gallatin County and is known as the “Treasure State” because of its rich mineral reserves. The mountains of Montana have yielded fortunes in gold and silver since the first substantial deposits were discovered in the mid 1800's. Another nickname for Montana is "Big Sky Country," made popular by a Montana State Highway Department promotion in the 1960's (originating from a book by Alfred Bertram Guthrie Jr. titled Big Sky). Currently, it is estimated that there are 38,695 residents of the City of Bozeman with the City growing by approximately two percent between 2011 and 2012. The City is governed by a City Commission/City Manager form of government. The City Commission is made up of four members plus a mayor that serves as the head of the City Commission. The City Commission appoints a City Manager to oversee the City’s eight departments. Request for Proposals for Professional Services FY 2014 – FY 2015 5 of 19 Additional information regarding the City of Bozeman may be obtained at: http://www.bozeman.net SCHEDULE Event Date/Time Publication Dates of RFP Wednesday, December 10, 2014 Last Day for Questions/Clarifications Thursday, January 8, 2015 Deadline for Receipt of Proposals Mon., Jan. 12, 2015 @ 5PM Evaluation of Proposals Mon. - Fri., Feb. 2-6, 2015 Finalist interviews Mon. – Fri., Feb. 17-19, 2015 Contract award and execution Tues., Feb. 24- Tues. Mar. 17, 2015 Public input process and draft report Mar.- May 2015 Report due to City for review and edits Tuesday, June 16, 2015 Final report due Mon. Aug. 3, 2015 Commission Presentation Mon., Sept. 7, 2015 Close out of contract Tues., Sept. 8, 2015 COMPLETION: Project to begin February 24, 2015 and be completed no later than October 1, 2015. CONTACTS Any administrative questions regarding bidding procedures should be directed to: Stacy Ulmen, City Clerk (406) 582-2321; agenda@bozeman.net Questions relating to scope of services and project management may be directed to: Wendy Thomas, Director of Community Development (406)582-2260; wthomas@bozeman.net or Courtney Kramer, Historic Preservation Officer (406) 582- 2289 or ckramer@bozeman.net LAST DAY FOR QUESTIONS The last day to submit questions to the Department of Community Development is Thursday, January 8, 2015 @ 5 pm. This will allow sufficient time for any addenda to be issued by the City to all bidders. All questions must be submitted in writing via email to the Department of Community Development at wthomas@bozeman.net All RFP questions and related answers will be posted to the City’s website for review by potential consultants interested in the project. Request for Proposals for Professional Services FY 2014 – FY 2015 6 of 19 AWARD OF CONTRACT The City reserves the right to reject any and all proposals, to contract work with whomever and in whatever manner the City decides, to abandon the work entirely and to waive any informality or non substantive irregularity as the interest of the City may require and to be the sole judge of selection process. The City also reserves the right to negotiate separately in any manner to serve the best interest of the City. The City retains the right at its sole discretion to select a successful vendor. SELECTION PROCESS AND RANKING CRITERIA A review committee will evaluate all responses to the RFP that meet the submittal requirements and deadline. Submittals that do not meet the requirement or deadline will not be considered. The review committee will rank the proposals and arrange interviews with the finalist prior to selection. SELECTION CRITERIA Proposals will be evaluated based on the following criteria:  Thoroughness and understanding of the tasks to be completed  Background and experience in analysis of regulations and policies related to provision of affordable/workforce housing, historic preservation, architectural history, neighborhood character, design guidelines/review, residential infill development  Firm’s expertise and overall experience of personnel assigned to the work  Time required to accomplish the requested services  Responsiveness to requirements of the project  Public sector experience in municipal setting conducting similar studies  Knowledge of Montana and City of Bozeman Development Regulations  Local office/representative  Costs DISCRETION AND LIABILITY WAIVER The City reserves the right to exercise discretion and apply its judgment with respect to all proposals submitted. The City reserves the right to reject all proposals, either in part or in its entirety, or to requests and obtain, from one or more of the consulting firms submitting proposals, supplementary information as may be necessary for City staff to analyze the proposals. The City may elect to award a contract in multiple phases, as is deemed to be in the City’s Request for Proposals for Professional Services FY 2014 – FY 2015 7 of 19 best interest. Should the City award projects in phases, the City reserves the right to award the phases to the same firm. The consultant, by submitting a response to this RFP, waives all right to protest or seek any legal remedies whatsoever regarding any aspect of this RFP. Although, it is the City’s intent to choose only a small number of most qualified consulting teams to interview with the City, the City reserves the right to choose any number of qualified finalists. This RFP does not commit the City to award a contract, to defray any costs incurred in the preparation of a proposal pursuant to this RFP or to procure or contract for work. All proposals submitted in response to this RFP become the property of the City and public records and, as such, may be subject to public review. The City reserves the right to cancel, in part or in its entirety, this RFP including, but not limited to: selection procedures, submittal date, and submittal requirements. If the City cancels or revises the RFP, all interested firms will be notified using email. MANDATORY CONTENT AND SEQUENCE OF SUBMITTAL I. Submission Requirements and Instructions All bidder requirements in this section are mandatory. The City reserves the right to waive any non-material variation. a) Proposers may submit response via email ONLY to this address: agenda@bozeman.net OR Submit one (1) original proposal package AND four (4) complete copies for each proposal, under sealed envelope, by mail or hand-delivery to the address shown on the front. Each submission must be marked on the outside with the Company’s name and the name of the project. Postmarks are NOT acceptable. Any proposal received after the schedule closing time for receipt of proposals will be returned to the bidder unopened. b) Proposals and required attachments shall be submitted as specified and must be signed by officials authorized to bind the bidder to the provisions. II. Proposal Outline and Content Assemble and submit each proposal in the order below and address the required content/questions. The order in which items are presented is important, as proposal evaluators will follow this order: a) Table of Contents Request for Proposals for Professional Services FY 2014 – FY 2015 8 of 19 b) Cover Sheet. This sheet will serve as the cover of your proposal. c) One-Page Project Summary. Begin with a brief summary of the proposal. This summary should concisely describe the project, its goals, and the proposed plan of implementation. d) Company Description/Capability (not to exceed 3 pages)  Brief history of the company that includes the date of establishment and examples of relevant prior RFP/bids and current customers of similar attributes to the City of Bozeman.  Describe your experience and capacity to manage projects of the size and scope proposed. e) Informational content  A list of the project team and their professional profile/credentials/experience.  Specific assignment of project team members f) References (minimum 3) specifically in local/municipal/county/state agencies a) Name of agency b) Contact name to include: title, phone number and email c) Population of jurisdiction d) Number of employees e) Project start and completion date f) Brief summary of project g) Cost  Present a specific “not to exceed” fixed fee, including associated fees (i.e. printing costs, attendance at meetings, travel). A requested payment schedule should accompany the work schedule. h) Outline of Services (refer to Scope of Services) The City reserves the right to require the submittal of additional information that supplements or explains proposal materials. SCOPE OF SERVICES 1. Review existing documents, to be provided after notice to proceed a. Review existing residential districts and standards (Chapter 38 and Design Guidelines, staff will provide listing of relevant articles in Chapter 38) b. Review staff’s sample files of infill projects and Accessory Dwelling Units (Estimated 20 files, staff will provide electronic copies) Request for Proposals for Professional Services FY 2014 – FY 2015 9 of 19 c. On-site evaluation of Bozeman neighborhoods (walking/driving tour with staff estimated time is 1 day) d. Identify best practices for attached and detached accessory dwellings and primary residential dwellings. (Staff will provide a list of projects we felt were successful) e. Identify code revisions needed for more predictable and relevant massing standards, e.g. FAR, revised lot coverage definition and standard, standards for changes in setback and heights with averages of surrounding structures f. Illustrated examples of applied best practices g. Review results of rental housing survey, completed August 2014 by others h. Review Census data for trends in NCOD i. Evaluate historic inventory data j. Example guidelines and code text formatted to match our documents k. The consultant will provide a written update documenting progress on the project prior to payment of any project invoices. At least one project update is required per calendar month. 2. Drafts a. Work with staff to create identify and revise Design Guidelines as necessary for residential infill and ADUs b. Work with staff to identify and revise review procedures for residential infill and ADUs depending on zoning district, size of property, etc. (e.g., by right, Conditional Use Permit, other process) c. Work with staff to revise development standards (e.g. minimum setbacks, massing, access, parking, etc.) d. Work with staff to create updated historic inventory 3. Meetings and site visits– Additional may be scheduled if needed a. Meet with Zoning Commission 2 times b. Meet with City Commission 2 times c. Site visits at least 2 times Request for Proposals for Professional Services FY 2014 – FY 2015 10 of 19 d. Meet with staff at least 3 times – Conference calls are also available e. Meet with Community Affordable Housing Advisory Board 2 times f. Meet with Historic Preservation Advisory Board 1 time 4. Work Product (City will make reproductions, Consultant to provide two printed copies and one electronic copy in Microsoft Word, Adobe PageMaker or Adobe PDF. All materials in black and white) a. Initial working review draft for staff b. Public review drafts of code updates c. Final approval draft of code language d. Content of work product – Text and photos or drawings describing and illustrating successful implementation of design principles. Priority for photos is given for local or regional locations e. Historic building inventory forms 5. Time Frame Project must conclude within 12 months after notice to proceed is given Staff participation 1. Review existing documents and provide these materials to the consultant at the time of notice to proceed. a. Staff evaluation of successes and deficiencies of existing UDC b. Staff identification of Comprehensive Plan text, goals, objectives, and policies applicable to ADUs, residential infill development, and provision of affordable housing c. Suggested revisions and updates to regulatory elements in zoning reviews and standards relative to the ADUs and residential infill development d. Identify any specific attributes desired for the final document e. Identify buildings that should be inventoried for historic relevance. 2. Drafts a. Coordination and outreach in Bozeman for public access to and review of documents Request for Proposals for Professional Services FY 2014 – FY 2015 11 of 19 b. Suggestions for updated review procedures c. Suggestions for revised development standards d. Receive and organize all comments for forwarding to consultant and City Commission. May include responses to comment when appropriate. 3. Meetings and site visits a. Coordinate scheduling of consultant visits with staff and officials b. Provide materials to meeting participants in advance for review c. Arrange for materials such as meeting room reservations and resources necessary for site investigation d. Meet with consultant for discussion e. Conduct solicitation of public input and coordinate all public hearings 4. Work Product a. Review and edit initial draft and make necessary duplications and distribution for review by others b. Review and edit public hearing draft, ensure public distribution of draft, prepare staff reports as needed c. Receive final draft and process for adoption followed by necessary copies and distribution in printed and electronic form If the consultant/firm feels that additional tasks are warranted, they must be clearly identified in the proposal. Public Participation It is expected that the proposer will work closely with the Community Affordable Housing Advisory Board (CAHAB), Bozeman Historic Preservation Advisory Board (BHPAB), City Commission, Zoning Commission, City Staff, interested organizations, and the public to complete the proposed work. The proposer should be prepared to commit to a meaningful public process that is transparent and understandable to the community. Reports and Meetings The following meetings and draft documents are expected as part of this process. Multiple meetings may be held on a single date. Proposer will be expected to work closely with engaged stakeholders. Proposer will be expected to check in with City Staff on a weekly Request for Proposals for Professional Services FY 2014 – FY 2015 12 of 19 basis to review progress. A final presentation to the City Commission will be required. Deliverables Two hard copies and 1 PDF version of all preliminary and final drafts shall be provided to City planning staff. All documents shall be provided at least 14 working days prior to any public hearing or meetings with the City Commission in an electronic format approved upon by the City. All work submitted shall become property of the City of Bozeman. Deliverables must comply with the Americans with Disabilities Act. To comply with the ADA, documents posted online, including, but not limited to, Adobe PDF files, Microsoft Word documents, Microsoft PowerPoint presentations, and online flipbooks, must be screen-reader friendly. Accessible documents are often part of web-based information or used for support documents. Therefore, under Section 508 standards and WCAG accessibility guidelines, it is critical to ensure all support documents made available to end users can be accessed by people with disabilities. Therefore, any digital material created for the City of Bozeman and it's websites will maintain the requirements outline in WCAG 2.0 AA Convention guidelines, Section 508 "Electronic & Accessibility Standards" of the U.S. Rehabilitation Act, the Usability.gov accessibility Guidelines, and ADA Title II State & Local Government nondiscrimination requirements. Request for Proposals for Professional Services FY 2014 – FY 2015 13 of 19 *THIS DOCUMENT MUST BE COMPLETED, EXECUTED AND SUBMITTED WITH THE PROPOSAL FORM* THE REPRESENTATIVES MADE HEREIN ARE MADE UNDER PENALTY OF PERJURY NO PROPOSAL IS VALID UNLESS SUBMITTED ON THIS FORM AND SIGNED BY AUTHORIZED AGENT FOR YOUR COMPANY. SUBMITTED BY: COMPANY NAME: ADDRESS: CITY: STATE: ZIP: _ TELEPHONE: EMAIL: SIGNATURE: (Authorized Agent) NAME: (Please Print) TITLE: DATE: NOTE: If proposer is a corporation, the legal name of the corporation shall be set forth above, together with the signature of authorized officers or agents; if bidder is a partnership, the true name of the firm shall be set forth above, together with the signature of the partnership; and if bidder is an individual, his signature shall be placed above. Professional Services Agreement FY 2014 – FY 2015 Page 14 of 24 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this _____ day of ____________, 2014, by and between the CITY OF BOZEMAN, MONTANA, a self governing municipal corporation organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as “City,” and, ____________, _______________, 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 _____ day of ______________, 201_]. 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 a Scope of Services. Any alteration or deviation from the described services that involves additional costs above the Agreement amount will be performed by Contractor after written request by the City, and will become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing upon any additional charges. 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. Professional Services Agreement FY 2014 – FY 2015 Page 15 of 24 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. 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. Professional Services Agreement FY 2014 – FY 2015 Page 16 of 24 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 an 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 indemnities’ which would otherwise exist as to such indemnities’. 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 indemnity 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 indemnity 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 indemnity 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, Professional Services Agreement FY 2014 – FY 2015 Page 17 of 24 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;  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. Professional Services Agreement FY 2014 – FY 2015 Page 18 of 24 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 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 Professional Services Agreement FY 2014 – FY 2015 Page 19 of 24 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 Representative: The City’s Representative for the purpose of this Agreement shall be _________________ (insert job title) or such other individual as City shall designate in writing. Whenever approval or authorization from or communication or submission to City is required by this Agreement, such communication or submission shall be directed to James Goehrung as the City’s Representative and approvals or authorizations shall be issued only by such Representative; provided, however, that in exigent circumstances when City’s Representative is not available, Contractor may direct its communication or submission to other designated City personnel or agents as listed above and may receive approvals or authorization from such persons. b. Contractor’s Representative: The Contractor’s Representative for the purpose of this Agreement shall be _____________________ 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, Professional Services Agreement FY 2014 – FY 2015 Page 20 of 24 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 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. Professional Services Agreement FY 2014 – FY 2015 Page 21 of 24 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: 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. 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. Professional Services Agreement FY 2014 – FY 2015 Page 22 of 24 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. Professional Services Agreement FY 2014 – FY 2015 Page 23 of 24 **** 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 Professional Services Agreement FY 2014 – FY 2015 Page 24 of 24 Statement of Non-discrimination – Attachment B Each entity shall include a provision requiring submitting entity to affirm in writing it will not discriminate on the basis of race, color, religion, creed, sex, age, marital status, national origin, or because of actual or perceived sexual orientation, gender identity or disability and recognizing the eventual contract will contain a provision prohibiting discrimination as described above and this prohibition on discrimination shall apply to the hiring and treatment or proposer’s employees and to all subcontracts. (name of entity submitting) hereby affirms it will not discriminate on the basis of race, color, religion, creed, sex, age, marital status, national origin, or because of actual or perceived sexual orientation, gender identity or disability and recognizing the eventual contract will contain a provision prohibiting discrimination as described above and this prohibition on discrimination shall apply to the hiring and treatment or bidder’s employees and to all subcontracts. Name and title of person authorized to sign on behalf of submitter