HomeMy WebLinkAbout15- GovHR USA for Police Chief RecruitmentPROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this 30th day of January, 2015, by and
between the CITY OF BOZE_MAN, MONTANA, a self governing nlunieipal corporation
organized and existing under its Charter and the laws of the State of Morrtana, 121 North Rouse
Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771,
hereinafter referred to as "City," and GovHR USA 650 Dundee Road, Suite 270, Norfolk, IL 60062,
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. Pur ose: City agrees to enter this Agreement with Contractor to perform for City
services described in the Scone of Services attached hereto as Attachment "A" and by this reference
made a part hereof.
2. Terni/Effective Date. This Agrcclnent is effective upon the date stated above and
will terminate pursuant to Sections 8 or 9, upon the City's successful hieing of a Chief of Police and
a Fire Chief. In no case shall this agreement be effective beyond the 1st day of July, 2015.unless
agreed to by the parties pursuant to Section 16,
3. Scope of Work: Contractor will perform the work and provide the services .in
accordance with the letters dated December 2, 2014 and January 18, 2015, to Bethany Jorgenson
from Heidi Voorhees, President of Contactor (the "Scope of -Services"). For conflicts between this
Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement
governs.
4. Payment: City agrees to pay Contractor the amount specified in the Scope of
Services. Any alteration or deviation from the described ,services that involves additional costs
above the Agreement amount will be performed by Contractor after written request by the City, and
will become an additional charge over and above the amount listed in the Scope of Services. The
City must agree in writing upon any additional charges.
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S. Contractor's Renresentations: 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
perforin 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
pertbrm 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
mind the City in any dealings between Contractor and any third parties,
Contractor shall comply with the applicable requirements of the Workers' Compensatiorl
Act, Title 3.9, 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 indernnif�,, defend, and hold the City harmless from any and all claims,
demands, costs, expenses, damages, and liabilities arising out of, resulting Fiona, or occurring in
connection with any labor problerns or disputes or any delays or stoppages of work associated with
such problems or disputes and for any claims regarding underpaid prevailing wages.
7. Indlerurnit iWaiverof 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) frons 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
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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 liom or in any way related to: (i) the negligent, reckless, or intentional misconduct of the
Contractor; (ii) or the any negligent, reckless, or :intentional misconduct of any of the Contractor's
agents,
For the professional services rendered, to the fullest extent permitted by law, Conl:ractor
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 riot 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 elle
indeninitee(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 indenurification under this Agreement or haler 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 claims) or
was obligated to indenuffy the indemnitee for a claini(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 convected 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 oflaw, 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
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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 suff'er'ed 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 ainoLults not less than as follows:
• Workers' Compensmion -- statutory;
• Cominercial 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 Drior to the
Coritt`actor 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, terininate this Agreement
and the Contractor's right. to proceed with all or any part of the work ("'Ferixtination Notice
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Duc to Contractor's Fault"), The City may thele 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 S, 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 rernedies 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,
remake 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 ininiediately 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 inunediately 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 I3(c) is the sole compensation clue to
Contractor for its performance of this Agreement. Contractor shall, wider 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
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any mature arising, or claimed to have arisen, as a result of the termination.
10. Limitation on Contracto.r'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 consequentiat, special, punitive, lost business
opportunity, lost productivity., field office overhead, general conditions costs, or lost profits
damages of any nature or kind.
1). In the event Contractor wants to assert a claire for damages of any kind or
nature, Contractor shall provide City with written notice of its claim, the facts and
circumstances stun•ounding and giving rise to the claim, and the total amount of damages
sought by the claim, within ten (30) days of Contractor's becoming aware 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 f.`or the purpose of this
Agreement shall be Bethany Jorgenson, Hinman Resources Manager, 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 Goe_hrung 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 play receive approvals or authorization froiv such persons.
b. Contractor's Representative: The Contractor's Representative for the
purpose of this Agreement shall be Paul .Harlow or such other individual as Contractor shall
designate in writing. Whenever direction to or conununication 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 conuxtunication to Heidi J.
Voorhees, Owner of GovHR USA, LLC.
12, Permits: Contractor shall provide all notices, comply with all applicable laws,
ordinances, rules, and regulations, obtain all necessary permits, licenses, inchlding a City of
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Bozeman business license, and inspections ftom 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 limitedd to, all workers'
compensation laws, allenvironmental laws including, but not limited to, the generation and disposal
of hazardous waste, the Occupational Safety and Health. Act (OSTIA), 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, of irmative action, and utilization of minority and small business statutes and
regulations.
1.4. Nondiscrimination: The Contractor agrees that all hiring by Contractor of persons
performing this Agreement shall be on the basis of merit and qualifications. 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 it) 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, Ui7ited
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 Drue 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 perlbrmance 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 'I"ransportation (DOT) regulations governing anti-drug and alcohol misuse
prevention plants and related testing. City shall have the right to request proof of such compliance
and Contractor shall be obligated to f irinish 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. Tlne Contractor is responsible for
instructing his employees and agents in safe work practices.
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16. Modification and AssiVability: 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. R+ ports/Accountabilit /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
reirnbursernent 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 Feer 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 gave 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 negotiations *between senior -level
personnel fronn each party drily autliorized to execute settlement agreements. Upon mutual
agreement of the parties, tlne 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 (a0) days from the
date the dispute was first raised, then such dispute may only be resolved in a court of
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competent jurisdiction in compliance with the Applicable C,awprovisions of this Agreement.
22. Survival: Contractor's indemnification shall survive the tennination 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. o2 unenforceable,
the balance thereof shall continue in effect.
25. Applicable .L,ajv: 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 Beuefieiary: 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 past of
this Agreement by reference.
**** END OF AG:REEMENT .EXCEPTFOR SIGNAT LIRE, * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this instrument the clay and
year fust above written,
CITY OF BOZEMAN, MONTANA
CONTRACTOR (Gov14R USA)
Chris Kukulski, City Manager
Print Name.
Print Title: v' -'e S i- o
APPROVED AS TO FORM:
By-' I
Greg �Iivn, Bozeina`nCity�Attor`ney
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