HomeMy WebLinkAbout15- Scope Fiber engineering RFQ 2-5-2015 FINALCity of Bozeman, Montana Request for Qualifications for [Bozeman Fiber Master Plan Implementation, Phases 1-3] Page 1 of 21
City of Bozeman
Request for Qualifications for Professional Services
Bozeman Fiber Master Plan Implementation, Phases 1 - 3
1 - GENERAL INFORMATION
1.1 The City of Bozeman seeks to procure one or more qualified professional service
providers to provide specialized fiber optic engineering, project management, business
process development, financial modeling, network equipment installation and testing, and
service provider attraction services for implementation of the Bozeman Fiber Master Plan.
1.2 The Statement of Qualifications (SOQ) must be received by the City Clerk at 121
North Rouse Ave., Bozeman, Montana, Suite 202 or by mail at PO Box 1230, Bozeman,
Montana, 59771-1230, no later than 12:00 p.m. (noon) local time on Tuesday, February 24, 2015.
1.3 Questions pertaining to the selection process should be directed to David Fine at
406-582-2973 or dfine@bozeman.net.
1.4 The City of Bozeman shall not be held responsible for any oral instructions. Any
changes to this Request for Qualifications (RFQ) will be in the form of an addendum, which
will be published on the City’s website and furnished to all firms having already submitted a
SOQ. All submissions under this notice are considered public records of the City.
1.5 The service provider(s) will be selected on the basis of demonstrated competence and
qualification for the type of services required and thereafter the City will negotiate the services
agreement with what it deems to be the most qualified firm for the particular project. All city
standard insurance and indemnification requirements will be included in any eventual contract.
(See sample City Professional Services Agreement, Exhibit B, for details.)
City of Bozeman, Montana Request for Qualifications for [Bozeman Fiber Master Plan Implementation, Phases 1-3] Page 2 of 21
2 ‐ PRELIMINARY SCOPE OF SERVICES
After being selected, the service provider(s) will execute a professional services agreement
with the City to provide services based on the preliminarily scope of services set forth in Exhibit
A. The service provider and the City shall negotiate a final scope of services after selection.
The City may, in its sole discretion, select more than one service provider to provide the services
set forth in Exhibit A, depending on that firm’s relevant expertise. For example, the City may
award a contract for parts (a) – (c) to one service provider, and award a separate contract for part
(d) to a different firm, or any other combination thereof.
3 ‐ QUALIFICATIONS EVALUATION CRITERIA
3.1 The service provider will be selected through a qualification‐based selection process.
Firms interested in providing the requested scope of services (or any part thereof) to the City of
Bozeman must submit a SOQ that includes the submittal requirements and addresses the
following evaluation criteria. Information included within the SOQ may be used to evaluate
your firm as part of any criteria regardless of where that information is found within the SOQ.
Information obtained from the SOQ and from any other relevant source may be used in the
evaluation and selection process.
3.2 Qualifications Criteria.
Respondents to this RFQ shall be evaluated on the following criteria and the requirements of
§18-8-201 et seq., MCA, with the selection committee choosing, in its opinion, the most
qualified firm to provide the services required for the proposed project:
a. The qualifications of professional personnel to be assigned to the project. b. Successful related experience on similar projects involving open access networks owned by cities, or economic development and community benefit entities.
c. Capability to meet time and budget requirements d. Present and projected workloads e. Demonstrated knowledge of the Bozeman Fiber Initiative and Bozeman Fiber Master Plan
f. Location of the firm in relation to the project g. Recent and current work for the City of Bozeman
City of Bozeman, Montana Request for Qualifications for [Bozeman Fiber Master Plan Implementation, Phases 1-3] Page 3 of 21
4 ‐ SUBMITTAL REQUIREMENTS
4.1 All SOQs must contain the following information:
a. A one-page cover letter;
b. Standard Federal Form 330 completed in full (all work, not just federal agencies);
c. Project management chart;
d. Example project schedule depicting all tasks typical for projects of this type;
e. At least 5 case studies (no more than 2 pages each) to demonstrate the firm’s
qualifications and experience on projects similar to the preliminary scope of
services and the Bozeman Fiber Master Plan;
f. At the discretion of the firm, no more than five (5) typewritten, single-spaced
pages more fully describing the firm's qualifications for the specific project and
including all information required by this section;
g. Description of: (i) any litigation, arbitration, or claims filed by the submitting firm
against any other client as a result of a contract dispute within the past ten (10 years);
(ii) a list of any contract or negligence claims filed against the submitting firm within
the past ten (10 years); and (iii) a list of similar service agreements wherein termination
occurred prior to final completion of the project within the past ten (10) years; and
h. Any other information necessary to address the criteria included in Section 3,
above and the scope of services but subject to the page limitation stated above;
i. A list of references from similar projects; and
j. At the discretion of the firm, a company brochure.
4.2 The SOQ must be submitted to the City Clerk at 121 North Rouse Ave., PO Box 1230,
Bozeman, Montana 59771-1230, by Noon local time, February 24, 2015. If documents are
delivered in person or by regular mail five copies must be submitted. Submissions may be made
electronically by email to agenda@bozeman.net with the project name in the subject line.
4.3 Failure to comply with the following criteria may be grounds for disqualifications:
• Delivery of submission after the specified cut‐off date and time.
• Failure to provide the required number of originals and/or copies of the
submittal specified.
• Adherence to maximum page requirements.
• Failure to submit required nondiscrimination affirmation statement.
4.4 Adherence to the maximum page criteria is critical; each page side (maximum 8 1/2” x
11”) with criteria information will be counted. Pages that have photos, charts and graphs will be
counted towards the maximum number of pages.
City of Bozeman, Montana Request for Qualifications for [Bozeman Fiber Master Plan Implementation, Phases 1-3] Page 4 of 21
5 ‐ SELECTION PROCEDURE AND SCHEDULE
5.1 Up to a five‐member Project Evaluation Committee will evaluate each SOQ according
to the above criteria. Each respondent will be ranked and, if necessary, the Committee may
select up to three respondents for interviews. The purpose of the interview will be to expand on
the information provided in the SOQ, not to repeat information already provided. Respondents
selected for interviews will be provided additional instruction by the City. Respondents not
selected for further consideration will be notified. The final selection will be based on an
evaluation of the written responses to the RFQ and, if conducted, interviews. Award of the
project will be made following contract negotiations to the most qualified respondent at a price
which the City determines to be fair and reasonable taking into account the estimated value of
services to be rendered, as well as the scope, complexity, and professional nature thereof.
5.2 The following tentative schedule has been prepared for this project. Firms interested in
this project must be available on the interview meeting date(s) (if conducted).
SOQs due: [February 24, 2015 at Noon]
Firms notified for interview: [March 4, 2015 at 12 p.m.]
Interviews: [March 5, 2015]
5.3 Following the interviews the Project Evaluation Committee will determine a ranking for
each firm based on the published criteria in Section 3. Consideration will be given to both the
written SOQ and interview.
5.4 Requests for briefings or selection decisions shall be made in writing to the City. All
information submitted by firms and related Project Evaluation Committee evaluations and
rankings shall be considered confidential until after contract execution and approval by the
City.
5.5 The City will enter into negotiations with the selected respondent and execute an
agreement for professional services upon completion of negotiations for City Commission
approval. If the City is unsuccessful in negotiating a contract with the highest ranked team, the
City may then negotiate with the second or third highest ranked team until a contract is
executed, or may decide to terminate the selection process.
City of Bozeman, Montana Request for Qualifications for [Bozeman Fiber Master Plan Implementation, Phases 1-3] Page 5 of 21
6 – RESERVATION OF RIGHTS BY CITY OF BOZEMAN
The issuance of this RFQ and the acceptance of a submittal do not constitute an agreement by the
City that any contract will actually be entered into by the City. Any costs incurred by
respondents in preparation of a response to this RFQ are the sole responsibility of the
respondents. Any or all disputes arising under this RFQ and any contract negotiated as a result of
this RFQ shall be governed by the laws of the State of Montana. The City reserves the right to
issue written notices of any change in the submittal process should the City determine, in
its sole and absolute discretion that such changes are necessary or desirable.
In addition and notwithstanding any other provision of the RFQ, the City reserves the right to:
1. Waive any immaterial defect or informality in a submittal;
2. Extend or otherwise revise the submittal due date;
3. Reject any or all submissions or portions thereof;
4. Cancel this RFQ at any time;
5. Reissue a new or revised RFQ; and
6. Request additional information or require one or more teams to submit a more detailed
submittal.
This solicitation does not require the City to award a contract, to pay any cost incurred with the
preparation of a qualifications statement, or to procure or contract for services. The City may
divide the preliminary scope of services into separate sub-projects, and award contracts on that
basis. The City reserves the right to accept or reject any submittals received in response to this
request, to negotiate with any qualified source, or cancel in whole or part this process if it is in
the best interest of the City. Prior to negotiations, prospective entities may be required to submit
revisions to their qualifications statements. All submitters should note that the award of any
contract pursuant to this solicitation may be dependent upon the recommendation of the City
staff and the approval of the Bozeman City Commission.
7 – SUBMITTAL REJECTION/RIGHT TO DISQUALIFY
Submittal of terms, conditions and/or agreements may result in rejection if such terms,
conditions, or agreements are deemed unacceptable by the City in its sole discretion. The City
reserves the right to disqualify any entity who fails to provide information or data specifically
requested herein or who provides materially inaccurate or misleading information or data or who
attempts to influence the selection process outside the procedures established herein. The City
reserves the right to disqualify any entity on the basis of any real or apparent conflict of interest.
This disqualification is at the sole discretion of the City.
City of Bozeman, Montana Request for Qualifications for [Bozeman Fiber Master Plan Implementation, Phases 1-3] Page 6 of 21
8 – CITY OF BOZEMAN’S NONDISCRIMINATION POLICY
Each entity submitting under this notice shall affirm, on a separate form provided by the City,
that 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, sexual preference, gender
identity, or disability in fulfillment of a contract entered into for the services identified herein
and that this prohibition on discrimination shall apply to the hiring and treatment of the
submitting entity’s employees and to all subcontracts it enters into related to fulfillment of the
services identified in this RFQ.
Failure to comply with the above shall be cause for the City to deem the submittal non-
responsive.
City of Bozeman, Montana Request for Qualifications for [Bozeman Fiber Master Plan Implementation, Phases 1-3] Page 7 of 21
EXHIBIT A
PRELIMINARY SCOPE OF SERVICES
Background:
A coalition of key stakeholders, including the City of Bozeman, support the development of an
integrated, open access (Layer 2), community fiber optic network. This new network will support
the public sector, bridge service gaps, enhance redundancy, and provide access to high capacity
fiber to enable private vendors to better deliver network services, and promote economic
development. The network will aggregate demand and create financial incentives for increased
private sector investment in regional and interstate connectivity.
In July 2014, the City of Bozeman and Prospera Business Network engaged consultants to
develop a Bozeman Fiber Master Plan to create a phased build plan for an open access network
connecting community anchor institutions and central business districts. The plan details a
ringed active Ethernet architecture to promote redundancy. The plan integrates a number of areas
where the City had already planned or engineered a fiber and/or conduit system for City
purposes into the larger network.
The plan divides work into three phases, which may proceed in order, together, or in some
combination thereof.
• Phase 1. Fiber to Central Business Districts. Approximately 7 miles of core fiber and 463
buildings passed.
• Phase 2. Fiber to the Schools. Approximately 11 miles of core fiber and 1141 buildings
passed.
• Phase 3. Fiber Loop Closure and Fiber to additional Business Districts. Approximately
10.5 miles and 650 buildings passed.
A link to the Bozeman Fiber Master Plan and Feasibility Study is available at
http://weblink.bozeman.net/WebLink8/0/doc/78575/Electronic.aspx
City of Bozeman, Montana Request for Qualifications for [Bozeman Fiber Master Plan Implementation, Phases 1-3] Page 8 of 21
Preliminary Scope of Services
Fiber Optic Engineering, Project Management, Business Process Development,
financial modeling, and network equipment installation and testing for a Community
Open Access (Layer 2) Fiber Optic Network
a. Fiber Optic Engineering and Project Management Services for an open access (Layer 2) active Ethernet network constructed in phases
i. Pre-design services including: project scope definition, preparation of design
alternatives and preliminary cost estimates, preliminary layouts, and utility
conflict and encroachment analysis. a. Familiarity with Federal, State, and Local design standards and applicable
specifications.
b. Design and construction surveys, including coordination with surveying firms. c. Design report preparation.
d. Preparation of preliminary and final plans and specifications, contract
documents, and construction cost estimates in accordance with applicable City standards.
e. Plan review and approval coordination with State, County, and other local agencies. f. Bid period and post-bid period activities coordination
g. Construction project management, administration and inspection
b. Network Equipment Installation and Testing
i. Select appropriate network equipment for an open access (Layer 2) active Ethernet fiber optic network. Install, connect, and test network equipment.
c. Business Process Development and Financial Modeling i. In coordination with relevant stakeholders, provide ongoing financial modeling
to adapt to the on the ground realities of operating an open access (Layer 2) fiber
optic network. ii. Develop business processes to guide the day-to-day operations of the open access
(Layer 2) fiber optic network.
iii. Provide advice regarding outsourcing network functions. iv. Collaborate on the development of relevant business documents for operating an
open access (Layer 2) fiber optic network. d. Service Provider Attraction i. Assist in recruiting service providers to the open access network. Help service providers understand the unique business opportunities presented by open access
(Layer 2) fiber optic networks.
The above-referenced preliminary scope of work may be divided into several sub-projects and
separate contracts may be negotiated over a period of time with a number of the qualified firms
responding to this RFQ based on the firms’ respective qualifications. The City's intent is to develop
a ranked list of prequalified firms; subsequent technical proposals and/or interviews may be
requested prior to actual consultant selection and contract negotiation.
City of Bozeman, Montana Request for Qualifications for [Bozeman Fiber Master Plan Implementation, Phases 1-3] Page 9 of 21
EXHIBIT B – ***Sample*** Standard City Contract
PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this _____ day of ____________, 2013,
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 1st day of September, 2014.
3. Scope of Work: Contractor will perform the work and provide the services in
accordance with the requirements of the Scope of Services (the frequency and work schedule).
For conflicts between this Agreement and the Scope of Services, unless specifically provided
otherwise, the Agreement governs.
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4. Payment: City agrees to pay Contractor the amount specified in the Scope of
Services for each location where services are provided. Any alteration or deviation from the
described services that involves additional costs above the Agreement amount will be performed
by 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.
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.
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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.
In performing the services under this Agreement, Contractor shall give preference to the
employment of bona fide residents of Montana, as required by §18-2-403, MCA, and as such,
term is defined by §18-2-401(1), MCA. When making assignments of work, Contractor shall
use workers both skilled in their trade and specialized in their field of work for all work to which
they are assigned.
Pursuant to §§18-2-403 and 18-2-422, MCA, Contractor shall pay wages, fringe benefits,
and expenses including travel allowances as set forth in the Montana Prevailing Wage Rage for
Non Construction Services, effective February 1, 2013 and applicable to Gallatin County,
Montana which schedule is incorporated herein. Contractor shall pay all hourly wage employees
on a weekly basis. Violation of the requirements set forth in the above State of Montana
schedule of prevailing wage rates may subject the Contractor to the penalties set forth in §18-2-
407, MCA. Contractor shall maintain payroll records during the term of this Agreement and for
a period of three (3) years following termination of this Agreement.
The Contractor shall ensure that any person, firm or entity performing any portion of the
services under this Agreement for which the contractor, subcontractor or employer is
responsible, is paid the applicable standard prevailing rate of wages.
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In the event that, during the term of this Agreement, any labor problems or disputes of
any type arise or materialize which in turn cause any services to cease for any period of time,
Contractor specifically agrees to take immediate steps, at its own expense and without
expectation of reimbursement from City, to alleviate or resolve all such labor problems or
disputes. The specific steps Contractor shall take to services shall be left to the discretion of
Contractor; provided, however, that Contractor shall bear all costs of any related legal action.
Contractor shall provide immediate relief to the City so as to permit the services to continue at
no additional cost to City.
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.
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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.
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
City of Bozeman, Montana Request for Qualifications for [Bozeman Fiber Master Plan Implementation, Phases 1-3] Page 14 of 21
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 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
City of Bozeman, Montana Request for Qualifications for [Bozeman Fiber Master Plan Implementation, Phases 1-3] Page 15 of 21
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.
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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 Representative: The City’s Representative for the purpose of this
Agreement shall be James Goehrung (Facilities Superintendant) or such other individual
as City shall designate in writing. Whenever approval or authorization from or
communication or submission to City is required by this Agreement, such communication
or submission shall be directed to James Goehrung as the City’s Representative and
approvals or authorizations shall be issued only by such Representative; provided,
however, that in exigent circumstances when City’s Representative is not available,
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.
City of Bozeman, Montana Request for Qualifications for [Bozeman Fiber Master Plan Implementation, Phases 1-3] Page 17 of 21
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,
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.
City of Bozeman, Montana Request for Qualifications for [Bozeman Fiber Master Plan Implementation, Phases 1-3] Page 18 of 21
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.
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 document contains the entire agreement
between the parties and no statements, promises or inducements made by either party or agents
of either party, which are not contained in this written Agreement, may be considered valid or
binding. This Agreement may not be enlarged, modified or altered except by written agreement
signed by both parties hereto. The 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.
City of Bozeman, Montana Request for Qualifications for [Bozeman Fiber Master Plan Implementation, Phases 1-3] Page 19 of 21
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.
City of Bozeman, Montana Request for Qualifications for [Bozeman Fiber Master Plan Implementation, Phases 1-3] Page 20 of 21
25. Applicable Law: The parties agree that this Agreement is governed in all
respects by the laws of the State of Montana and the parties expressly agree that venue will be in
Gallatin County, Montana, and no other venue.
26. Binding Effect: This Agreement is binding upon and inures to the benefit of the
heirs, legal representatives, successors, and assigns of the parties.
27. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the
parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or
enforced by a third party.
28. Counterparts: This Agreement may be executed in counterparts, which together
constitute one instrument.
29. Integration: This Agreement and all Exhibits attached hereto constitute the
entire agreement of the parties. Covenants or representations not contained therein or made a
part thereof by reference, are not binding upon the parties. There are no understandings between
the parties other than as set forth in this Agreement. All communications, either verbal or
written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless
specifically made a part of this Agreement by reference.
30. 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 September 1, 2015.
**** END OF AGREEMENT EXCEPT FOR SIGNATURES ****
City of Bozeman, Montana Request for Qualifications for [Bozeman Fiber Master Plan Implementation, Phases 1-3] Page 21 of 21
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