HomeMy WebLinkAbout15- Comma-Q Architecture City Hall Legal Office Window Install9� CITY OF BOZEMAN
__ A NIUNICII'AL CORPORATION
�e 121 N Rouse Avenue • P.O. Box 1230 • Bozeman NIT 59771-1330
cov�°Phone: 406 582-2309 • Fax: 406 582-2302
STANDARD FORM OF AGREEMENT BETWEEN
OWNER AND ARCHITECT/ENGINEER
This AGREEMENT is made as of:
September 23, 2014
BETWEEN the City of Bozeman, acting through its Superintendent of Facility Services, hereinafter identified as
the "OWNER":
And the ARCHITECTIENGINEER:
For the following Project:
1 PART 1
1.1 COMPENSATION
Facilities Department, City of Bozeman
P.O. Box 1230, 20 East Olive Street
Bozeman, MT 59771-1230
COMMA -Q ARCHITECTURE, INC.
109 NORTH ROUSE AVENUE
BOZEMAN, MT 59715
p(406) 585-1112; f(406) 585-5518
CITY HALL LEGAL OFFICE WINDOW INSTALL
CITY HALL 121 NORTH ROUSE AVENUE
1.1.1 The Owner shall compensate the Architect/Engineer in accordance with the full Terms and
Conditions of this Agreement as follows:
Design Fee Type 1: Time Based, Hourly not -to -exceed - Phase 1: $1,100.00
Phase 2: $1,000.00
Phase 3: $400.00
Phase 1 Tasks include — Site visits to photograph exterior elevations; Create exterior elevation drawing showing new
window, specific floor plan and site plan identifying location of new window, add material and color descriptions.
Phase 2 Tasks include — Draw detail section through new window and existing masonry wall; Create a scope set of
construction drawings with outline specifications on the drawings for Owner to solicit proposals for the project; Deliver
hard copy sets of drawings as well as digital pdf files to the Owner.
Phase 3 Tasks include — Make construction site visit to review and report in -progress demolition and installation; Make
final construction site visit to review and report final installation.
To be determined are any of the required compliance issues with any LEED criteria.
1.1.2 The compensation in this Agreement is a Lump -Sum, Fixed Fee amount for all Services,
Responsibilities, and Duties of the Architect/Engineer required to complete the Scope of Work. If
additional services are desired or become necessary, the Owner and Architect will execute an
amendment to this Agreement. If there are services required beyond the scope of this Agreement,
such services shall be negotiated with the Owner. Services beyond the scope of this Agreement
must be authorized by the Owner prior to performance of such services or they shall be at the
Architect/Engineer's expense.
1.1.3 The Owner will make progress payments to the Architect/Engineer on account of services rendered.
Should the Project proceed through construction, any remaining amounts due after Substantial
Completion will be paid to the Architect/Engineer upon completion of particular service items
delineated in this Agreement or upon Final Acceptance of the Project, whichever is later.
1.1.4 Each request for payment submitted by the Architect/Engineer shall be submitted to the Owner on
not more than a monthly basis. The Owner has thirty (30) calendar days from the date of receipt to
process payment to the Architect/Engineer of all undisputed amounts.
1.1.5 If the Owner determines that any representations on pay requests submitted by the
Architect/Engineer are wholly or partially inaccurate, the Owner may withhold payment of amounts
in dispute until the inaccuracy and its cause have been corrected to the Owner's satisfaction.
1.1.6 The Owner may make deductions or withhold payment of amounts in dispute.
1.1.7 By submission of the final pay request the Architect/Engineer certifies to the Owner that all bills for
materials, supplies, utilities and for all other items or services furnished or caused to be furnished
and used in the execution of this Agreement have been fully paid to date and that there are no
unpaid claims or demands of State or Federal Agencies, consultants, employees, or any others
resulting from or arising out of any work done under this Agreement.
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1.1.8 Reimbursable Expenses.
1.1.8.1 Reimbursable expenses for services as part of this Agreement are not included in the Total
Sum. Estimated reimbursable expenses: are not expected to exceed $600.
1.1.8.2 For Reimbursable Expenses the compensation shall be the expenses incurred by the
Architect and the Architect's consultants plus fifteen percent (15%) of the expenses
incurred.
1.1.8.3 Reimbursable Expenses are defined as:
1.1.8.3.1 transportation in connection with the Project, out-of-town travel and
subsistence, and electronic communications;
1.1.8.3.2 document reproductions for bidding purposes, plots, standard form documents,
telephone/cell phone, postage, handling and delivery;
1.1.8.3.3 expense of professional liability insurance dedicated exclusively to this Project
or the expense of additional insurance coverage or limits requested by the
Owner in excess of that normally carried by the Architect/Engineer and the
Architect/Engineer's consultants; and,
1.1.8.3.4 other similar direct Project -related expenditures.
1.1.9 Records of expenses for all services performed, changes in service, reimbursable expenses, and
other expenses shall be available to the Owner or the Owner's authorized representative at mutually
convenient times.
1.1.10 Other expenses incurred by the Architect/Engineer may be compensated if authorized in advance
by the Owner. All Other expenses shall be negotiated with and approved by the Owner prior to the
Architect/Engineer incurring such expenses.
1.2 ENUMERATION OF AGREEMENT
1.2.1 This Agreement represents the entire and integrated agreement between the Owner and the
Architect/Engineer and supersedes all prior negotiations, representations or agreements, either
written or oral. This Agreement may be amended only by written instrument signed by both Owner
and Architect/Engineer. This Agreement is for the following scope of work:
Provide architectural services to address the installation of an office window on the
north side exterior of the building for the Legal Department.
Building elements to be addressed under this contract include:
• Removal of exterior bricks for window area; replacement of masonry sills
and face brick immediately below sills
• Frame and install the window.
1.2.2 By executing this Agreement the Architect/ Engineer represents, acknowledges, and agrees that the
Agreement incorporates all of the requirements of the documents and items enumerated above and
agrees to be bound by the same.
1.3 PROJECT TEAM
1.3.1 The Owner's project manager(s) and Department representative(s) shall be as defined in the Initial
Information document.
1.3.2 The Owner's Project Manager (respective to the phase of the Project) is authorized to act on the
Owner's behalf. The Owner or the Owner's Project Manager shall render decisions in a timely
manner in order to avoid unreasonable delay in the orderly and sequential progress of the
Arch itect/Engineer's services.
1.3.3 The Department may be comprised of multiple groups or individuals. The Architect/Engineer shall
be aware that the Department is not able to bind the Owner and shall communicate and coordinate
with the Owner's Project Manager in all instances regarding the Project, Initial Information, Project
Program, Project Schedule, Project Budget, transfers of information, scheduling meetings, and any
Departmental requests.
1.3.4 The Architect/Engineer shall communicate with the Department through the Owner's Project
Manager unless given permission by the Project Manager to communicate and coordinate directly
with the Department.
1.3.5 The Architect/Engineer's representative shall be as defined in the Initial Information document. The
Arch itect/Engineer's Designated Representative shall be authorized to act on the
Architect/Engineer's behalf with respect to the Project and to bind the Architect/Engineer and the
Architect/Engineer's consultants.
1.4 GENERAL TERMS AND CONDITIONS
1.4.1 The Owner and Architect/Engineer shall cooperate with one another to fulfill their respective
obligations under this Agreement. Both parties shall endeavor to maintain professional working
relationships among all members of the Project Team.
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1.4.2 Licensing Requirements. By signature on this Agreement, the declaration is made that the
Architect/Engineer is professionally qualified, registered, and licensed to practice in the State of
Montana. In accordance with Montana law, the Architect/Engineer shall stamp and sign any
Contract Documents (drawings and specifications) prepared under this Agreement.
1.4.3 The Architect/Engineer shall be responsible for the professional quality, technical accuracy, and
coordination of all concepts, programming, reports, designs, drawings, specifications, and other
services furnished under this Agreement. The Architect/Engineer shall, without additional
compensation, correct or revise any errors, deficiencies, or omissions in concepts, programming,
reports, designs, drawings, specifications, estimates, and other services.
1.4.4 Neither the Owner's review, approval or acceptance of, nor payment for, the services required
under this Agreement shall be construed to operate as a waiver of any rights under this Agreement
or of any cause of action arising out of the performance of services under this Agreement, and the
Architect/Engineer shall be and remain liable to the Owner in accordance with applicable law for all
costs and damages to the Owner caused by the Arch itect/Engineer's negligent performance of any
of the services furnished under this Agreement.
1.4.5 Rights & Remedies. The rights and remedies of the Owner allowed by law are in addition to any
rights and remedies provided in this Agreement.
1.4.6 Relationship. The relationship of the Architect/Engineer to the Owner under this Agreement is that
of an Independent Contractor. The parties agree that Consultant is an independent contractor for
purposes of this Agreement and is not to be considered an employee of the City for any purpose.
Consultant 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.
Consultant is not authorized to represent the City or otherwise bind the City in any dealings between
Consultant and any third parties.
Consultant 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.
Consultant shall maintain workers' compensation coverage for all members and employees of
Consultant's business, except for those members who are exempted by law.
Consultant 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.
1.4.7 Successors and Assigns. The Owner and the Architect/Engineer each bind themselves, their
partners, successors, legal representatives, and assigns to the other party to this Agreement and to
the partners, successors, legal representatives and assigns of such other party in respect to all
covenants of this Agreement. Neither the Owner nor the Architect/Engineer shall assign or transfer
its interest in this Agreement without written consent of the other. Consent shall not be
unreasonably withheld. Notwithstanding the provisions of this Paragraph 1.4.7, the parties
recognize and agree that the Architect/Engineer will retain sub -consultants to perform certain
services under this Agreement, and the Architect/Engineer shall be responsible for executing
contracts with those sub -consultants.
1.4.8 Records and Documentation:
1.4.8.1 The Architect/Engineer and the Architect/Engineer's consultants shall be aware that all
documentation, including electronic correspondence, in the Owner's possession are public
records and the Owner is obligated to make all such records available upon request to any
party or individual unless such records meet statutory requirements or Montana
Administrative Rules for confidentiality and non -disclosure.
1.4.8.2 The Owner shall have access to all records, documents, correspondence, and files of the
Architect/Engineer, its employees, engineers, and consultants pertaining to the Project. This
access shall be continuing and survive Final Acceptance of the Project or the termination of
this Agreement for either cause or convenience. Such records shall be kept in a generally
recognized format for a period of three (3) years from the effective date of termination of
this Agreement or Final Acceptance of the Project by the Owner. All records shall be
available to the Owner or their authorized representatives. The Owner does not consider
documents, files, and records in the Architect/Engineer's possession or the
Arch itect/Engineer's consultants' possession to be public records unless determined to be
so by law or unless they come into the Owner's possession. Access and review does not
constitute possession by the Owner.
1.4.9 The Architect/Engineer warrants that he has not employed or retained any person, partnership, or
corporation, other than a bona fide employee or principal owner working for the Architect/Engineer
to solicit or acquire the Project described in this Agreement.
1.4.10 Nothing contained in this Agreement shall create a contractual relationship with or a cause of action
in favor of a third party against either the Owner or Architect/Engineer except as provided in the
"Dispute Resolution" article of this Agreement.
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1.5 RESPONSIBILITIES OF THE PARTIES
1.5.1 Owner's Responsibilities:
1.5.1.1 Unless otherwise provided under this Agreement, the Owner shall provide information in a
timely manner regarding requirements and parameters of the Project. The Owner shall
furnish information, in conjunction with the Architect/Engineer's services, setting forth the
Owner's objectives, schedule, constraints and criteria, including space requirements and
relationships, special equipment, systems and site requirements as applicable to the
Project.
1.5.1.2 The Owner shall examine documents submitted by the Architect/Engineer and shall render
decisions pertaining thereto in a timely fashion so as not to unduly delay the performance of
the Arch itect/Engineer.
1.5.1.3 The Owner shall furnish the services of consultants other than those designated as part of
the Architect/Engineer's responsibility or authorize the Architect/Engineer to furnish them as
a change in service or scope.
1.5.1.4 The Owner shall furnish testing, inspections, and reports as necessary for the Project such
as special inspections, structural, mechanical, chemical, hazardous materials, and other
laboratory tests, inspections, and reports not incorporated into this Agreement or shall
authorize the Architect/Engineer to furnish them as a change in service or scope_
1.5.1.5 The Owner shall furnish accounting and auditing services as may be necessary for the
Project as the Owner may require to ascertain how or for what purposes the
Architect/Engineer has used the funds paid under the terms of this Agreement.
1.5.1.6 If the Owner observes or otherwise becomes aware of any error, fault, omission, or defect
in the Project or non-conformance with the documentation or Plans and Specifications, the
Owner shall give prompt written notice thereof to the Architect/Engineer.
1.5.1.7 Upon request, the Owner shall prepare for the Architect/Engineer the necessary bidding
information, wage rates, and the General and any Supplementary General Conditions of the
Construction Contract, commonly called the "Boiler Plate", and other specifications deemed
necessary by the Owner, for inclusion into the Contract Documents. Boiler plate and
bidding information provided by the Owner shall be included in the bidding documents
without modification by the Architect/Engineer unless changes are requested and/or
approved by the Owner. Any changes made by the Architect/Engineer without consent of
the Owner shall be the Architect/Engineer's responsibility.
1.5.2 Architect/Engineer's Responsibilities:
1.5.2.1 The Architect/Engineer's services shall be performed as expeditiously as is consistent with
professional skill and care ordinarily exercised by members of the same profession
currently practicing under similar circumstances at the same time and in the same or similar
locality, the essential orderly progress of the Project, and in accordance with the Project
Schedule. The Architect/Engineer recognizes and agrees that time is of the essence of this
Agreement in the performance of its services.
1.5.2.2 The Architect/Engineer shall maintain the confidentiality of information specifically
designated as confidential by the Owner, unless withholding such information would violate
the law or create the risk of significant harm to the public. The Architect/Engineer shall
require similar agreements of the Architect/Engineer's consultants to maintain the
confidentiality of information specifically designated as confidential by the Owner.
1.5.2.3 Except with the Owner's knowledge and express written consent, the Architect/Engineer
shall not engage in any activity, or accept any employment, other agreement, interest, or
contribution that would reasonably appear to compromise the Architect/Engineer's
professional judgment with respect to this Project.
1.5.2.4 The Architect/Engineer is expressly prohibited from participating in or bidding on any part of
the Contract for Construction or multiple construction contracts, if any, let by the Owner.
1.5.2.5 The Architect/Engineer shall review laws, codes, and regulations applicable to the
Arch itect/Engineer's services. The Architect/Engineer shall respond in the design of the
Project to requirements imposed by governmental authorities having jurisdiction over the
Project.
1.5.2.6 The Architect/Engineer shall be entitled to rely on the accuracy and completeness of
services and information furnished by the Owner and/or the Department. The
Architect/Engineer shall provide prompt written notice to the Owner if the Architect/Engineer
becomes aware of any errors, omissions, or inconsistencies in such services or information.
1.6 PROJECT BUDGET
1.6.1 The Owner shall provide information regarding the Owner's Project Budget. While the Owner and
Architect/Engineer shall endeavor to work cooperatively to establish the parameters and individual
aspects of the Budget, the Architect/Engineer agrees that the Owner, at its sole discretion, retains
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the right to establish all parameters and aspects of the Project Budget. The Architect/Engineer shall
perform its services in a manner consistent with the Project Budget.
1.6.2 The Architect/Engineer shall review the Initial Information document and Project Budget furnished
by the Owner and make recommendations for the requirements of the Project. The
Architect/Engineer shall establish the requirements and all design parameters in cooperation with
the Owner that shall then become the Project Program and the basis of design of the Project. If
Programming is part of the Architect/Engineer's services under this Agreement, the completed and
approved Programming Documents shall become the Project Program and the basis of design of
the Project.
1.6.3 The Owner's increase to any part of the Project Budget during the design process based upon the
Architect/Engineer's Estimate is not prima facie evidence that the Architect/Engineer is due
additional fees nor does such an increase necessarily indicate a change in services to the
Architect/Engineer as negotiated and agreed upon at the time of execution of this Agreement.
1.7 PROJECT SCHEDULE
1.7.1 The Owner and Architect/Engineer shall cooperatively develop an Initial Project Schedule consistent
and compliant with the Initial Information document and the Owner's needs for timely delivery of
services under this Agreement.
1.7.2 The Architect/Engineer shall submit a complete Initial Project Schedule which shall be consistent
with the time periods in the Initial Information document.
1.7.3 Adjustments to the Initial Project Schedule shall be made only as agreed upon by both parties and
then documented as part of meeting minutes, in the Programming/Planning documents, or other
separate, schedule alteration documentation. The Architect/Engineer shall provide copies of all
revised schedules to the Owner and Department.
1.7.4 Time limits established by the Initial Project Schedule approved by the Owner shall not be exceeded
by the Architect/Engineer or Owner except as adjusted by the agreement of both parties and as
documented.
1.8 CHANGE IN SERVICES
1.8.1 Change in services of the Architect/Engineer, including services required of the Architect/Engineer's
consultants, may be accomplished after execution of this Agreement without invalidating the
Agreement.
1.8.2 A change in the project scope or program is not prima facie evidence that the Architect/Engineer
shall be due additional fees nor does such a change necessarily indicate a change in services.
1.8.3 The parties shall negotiate and enumerate changes in services by signed, written addendum to this
Agreement except for Supplemental Services agreed to by the Owner. A supplemental service
agreed to by the Owner may be billed directly as part of the Architect/Engineer's pay requests
without addendum. Such supplemental services do not invalidate any portion of this Agreement.
1.8.4 The Architect/Engineer shall promptly notify the Owner prior to providing any services it considers to
be a change from those enumerated in this Agreement.
1.8.4.1 If the Owner deems that all or a part of such services are not required, the Owner shall give
prompt notice to the Architect/Engineer, and the Architect/Engineer shall have no obligation
to provide those services.
1.8.4.2 If the Owner deems that all or a part of such services are required, the Owner shall give
prompt notice to the Arch itect/Engineer, and the two parties shall negotiate an appropriate
change in services addendum to this agreement.
1.8.4.3 The Owner may determine that all or part of such services are required but is not obligated
to agree that such services are a change in the services of the Architect/Engineer. All such
instances shall be subject to the "Dispute Resolution" article of this Agreement. The
Architect/Engineer shall continue faithful performance of services, including matters in
dispute.
1.8.5 None of the following circumstances are prima facie evidence that the Architect/Engineer is
experiencing a change in services for the Project, due adjustment to the schedule, or due additional
compensation:
1.8.5.1 change in the instructions or approvals given by the Owner that necessitate revisions in
Initial Information document, Project Program, Project Budget, Project Schedule, design, or
Contract Documents unless such changes are extensive, significantly alter the basic
concepts of the Project, or are done so before completion of Design Development (or
Preliminary Design);
1.8.5.2 unless there is significant change in the Project size and complexity as a result of changes
to the Project Program;
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1.8.5.3 performance or failure of performance on the part of the Owner or the Owner's consultants
or contractors unless such performance or failure are demonstrated to have damaged the
Architect/Engineer;
1.8.5.4 a dispute resolution proceeding or a legal proceeding related to the Project either during
design, construction, warranty, or prior to the expiration of any applicable statute of
limitations; or,
1.8.5.5 the Owner's increasing the Project Budget or the Estimated Construction Cost to
adequately fund the Project Program or at any phase of design or bidding, or extension of
the Project Schedule.
1.9 OWNERSHIP OF DOCUMENTS
1.9.1 All reports, information, data, and other materials prepared by the Consultant pursuant to this
Agreement, except those separately identified in the Scope of ServicesNVork Plan or in other written
agreements between the parties, are jointly owned by the Consultant and the City. The City has
authority to release, publish or otherwise use, in whole or part, reports, information, data, and other
materials prepared by the Consultant pursuant to this Agreement, unless otherwise agreed to in
writing by the parties. Any re -use without written verification or adaptation by the Consultant for the
specific purpose intended will be at the City's sole risk and without liability or legal exposure to the
Consultant. No material produced in whole or in part under this Agreement may be copyrighted or
patented in the United States or in any other country without the prior written approval of the City.
1.9.2 The Owner agrees to indemnify and hold harmless the Architect/Engineer from any and all claims,
demands and causes of action of any kind or character arising separate from this Project as a result
of reuse of the documents developed under this Agreement.
1.9.3 The Owner is restricted from using the Arch itect/Engineer's license seal/stamp/signature in any form
or manner as part of any reuse of documents developed under this Agreement. The
Architect/Engineer may not remove its license seal/stamp/signature from the Contract Documents
used to construct the Project but may do so from electronic and hard copy Record Drawings
delivered to the Owner.
1.9.4 The Architect/Engineer shall have the right to include photographic or artistic representations of the
design and construction of the Project among the Arch itect/Engineer's promotional and professional
materials. The Architect/Engineer shall be given reasonable access to the completed Project to
make such representations. However, the Architect/Engineer's materials shall not include the
Owner's confidential or proprietary information regardless of whether or not the Owner has
previously advised the Architect/Engineer in writing of the specific information considered by the
Owner to be confidential or proprietary.
1.10 DISPUTE RESOLUTION
1.10.1 The Owner and Architect/Engineer shall endeavor to resolve controversies, claims, disputes, and
other matters in question between them through good faith debate, discussion, and negotiation prior
to submitting them to mediation, arbitration, or other legal proceeding.
1.10.2 During all debate, discussion, negotiation, mediation, and arbitration proceedings, the
Architect/Engineer shall continue with performance of services in accordance with this Agreement,
including matters in dispute. The Owner shall continue to make payment for services not in dispute
in accordance with this Agreement.
1.10.3 Any and all controversies, disputes, claims, or other matters between the parties arising out of or
related to this Agreement shall be decided and settled in accordance with this Agreement and with
the Uniform Arbitration Act, Title 27, Chapter 5 of Montana Code Annotated.
1.10.4 City of Bozeman, Gallatin County, State of Montana, shall be the venue for all litigation or court
proceedings. Any mediation and/or arbitration proceedings shall be in the place where the Project
is located unless otherwise agreed upon in writing by both parties. State of Montana law shall
govern this Agreement and all dispute resolution and legal proceedings.
1.10.5 In no event shall any claim or dispute be made after the date when institution of legal or equitable
proceedings based on such claim, dispute, or other matter in question would be barred by the
applicable statute of limitations.
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1.10.6 Mediation:
1.10.6.1 Any claim, dispute or other matter in question arising out of or related to this
Agreement shall be subject to mediation as a condition precedent to arbitration.
However, the parties may mutually agree in writing to waive mediation and proceed
directly to arbitration.
1.10.6.2
1.10.6.3 Request for mediation shall be filed in writing with the other party to the Agreement
and the parties shall endeavor to agree upon a mediator and a location for the
proceedings. Unless otherwise mutually agreed upon, mediation shall be in
accordance with the Construction Industry Mediation Rules of the American
Arbitration Association, except Rule M-2 (filing with AAA). Requests for mediation
1.10.6.4 shall not be filed with AAA unless agreed upon by both parties to do so.
1.10.6.5 A demand for arbitration shall not be made and no arbitration proceedings may
occur until attempt at mediation has failed unless both parties have mutually waived
mediation.
1.10.6.6
1.10.6.7 The parties shall share the mediator's fee and any filing fees equally. The
mediation shall be held in the place where the Project is located, unless another
location is mutually agreed upon. Agreements reached in mediation shall be
enforceable as settlement agreements in the venue specified in this Agreement.
1.10.7 Arbitration:
1.10.7.1 Controversies, claims, disputes, or other matters in question between the parties
that are not resolved by mediation shall be decided by arbitration. Unless otherwise
mutually agreed upon, arbitration shall be in accordance with the Construction
Industry Arbitration Rules of the American Arbitration Association, except Rule A-3
(filing with AAA). Demands for arbitration shall not be filed with AAA unless agreed
upon by both parties to do so.
1.10.7.2
A demand for arbitration may only be made upon conclusion of mediation unless
mediation is waived by mutual written agreement of the parties.
1.10.7.3
No arbitration arising out of or relating to this Agreement shall include, by
consolidation or joinder or in any other manner, an additional person or entity not a
party to this Agreement, except by written consent containing a specific reference to
this Agreement and signed by the Owner, Arch itect/Engineer, and any other person
or entity sought to be joined. Consent to arbitration involving an additional person
or entity shall not constitute consent to arbitration of any claim, dispute or other
matter in question not described in the written consent or with a person or entity not
named or described therein. The foregoing agreement to arbitrate and other
agreements to arbitrate with an additional person or entity duly consented to by
parties to this Agreement shall be specifically enforceable in accordance with
applicable law in any court having jurisdiction thereof.
1.10.7.4
The ruling or award rendered by the arbitrator or arbitrators shall be final, and
judgment may be entered upon it in accordance with applicable law in the venue
specified herein.
1.10.8 Dispute
Between Owner and Contractor (the term "Contractor" includes any General
Contractor/Construction Manager or Construction Manager at Risk):
1.10.8.1
In the event a dispute arises between the Owner and Contractor, or any other party,
whether before, during, or after construction, the Architect/Engineer shall advise
and consult with the Owner in attempting to resolve the dispute, whether informally
or by mediation, arbitration, or other legal proceeding.
1.10.8.2 The Architect/Engineer will make himself and/or his consultants, agents, and
employees available and shall permit inspection of his records by the Owner. In the
event that it is ultimately determined that the Architect/Engineer did not cause or
contribute to the dispute, damages, or expenses alleged, the Architect/Engineer
shall be reimbursed by the Owner for all costs reasonably incurred upon final
resolution of the dispute with the Contractor.
1.10.8.3 The Owner, at its sole discretion, may also enjoin the Architect/Engineer and/or
consolidate any claim or dispute with the Architect/Engineer to any dispute between
the Owner and Contractor. This condition is the singular and sole exemption to
needing written consent of the Owner, Architect/Engineer, and any other party
seeking to be joined in a dispute or claim between the Owner and the Contractor,
as defined in the Contract for Construction.
1.10.8.4
If there is no formal determination or finding of fault, the Architect/Engineer and
Owner may negotiate terms for payment unless the Owner suffered loss as a result
of the dispute and believes the Architect/Engineer was responsible for or
contributed to the loss or cause of the dispute. In such event, any such dispute
between the Owner and the Architect/Engineer shall be subject to resolution per the
"Dispute Resolution" article of this Agreement. Notwithstanding the foregoing, the
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Architect/Engineer shall not be bound by any finding or allocation in any proceeding
to which the Architect/Engineer is not a party.
1.10.8.5 The Owner will not be required to reimburse the Architect/Engineer for matters in
dispute at any time prior to a final determination or resolution of any claim or
dispute. In the event the Architect/Engineer caused, in whole or in part, the dispute
or controversy, the Architect/Engineer shall bear his costs for participating in the
resolution.
1.11 WAIVER OF CONSEQUENTIAL DAMAGES
1.11.1 The Arch itecf/Engineer and the Owner waive all consequential damages against each other that
arise as a result any claims, disputes, or other matters in question arising out of or relating to
this Agreement. This mutual waiver is applicable, without limitation, to all consequential
damages as a result of either party's termination in accordance with this Agreement.
1.12 MISCELLANEOUS PROVISIONS
1.12.1 This Agreement shall be governed by the laws of the State of Montana and venue for all
proceedings shall be City of Bozeman, Gallatin County.
1.12.2 Causes of action between the parties to this Agreement pertaining to acts or failures to act shall
be deemed to have accrued and the applicable statutes of limitations shall commence to run not
later than the effective date of termination or of Final Acceptance of the Project per the General
Conditions of the Contract for Construction.
1.12.3 To the extent damages are covered by either's insurance, the Owner and the Architect/Engineer
waive all rights against each other and against contractors, consultants, agents, and employees
of the other for damages, except such rights as they may have to the proceeds of such
insurance current as of the date of this Agreement.
1.12.4 Insurance. Consultant shall secure insurance coverage acceptable to the City and furnish to the
City an accompanying certificate of insurance issued by a company authorized to do business
in the State of Montana 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
Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate This policy is an
"expense within limits" policy and the applicable policy limit is reduced by attorney's fees or costs
incurred in defense of a claim, and by any judgment or settlement payments
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 thirty (30) day notice of cancellation or non-
renewal. The City must approve all insurance coverage and endorsements prior to the
Consultant commencing work.
The Architect/Engineer shall protect, defend, and save the Owner, its elected and appointed
officials, agents, agencies, and employees, while acting within the scope of their duties as such,
harmless from and against all claims, liabilities, demands, causes of action, and judgments
whatsoever (including the cost of defense and reasonable attorney fees) arising in favor of or
asserted by third parties on account of damage to property, personal injury, or death which
injury, death, or damage, arises out of services performed or omissions of services or in any
way results from the negligent acts or omissions of the Architect/Engineer, its agents, or sub -
consultants.
The Owner shall protect, defend, and save the Arch itect/Engineer, its agents and employees,
while acting within the scope of their duties as such, harmless from and against all claims,
liabilities, demands, causes of action, and judgments whatsoever (including the cost of defense
and reasonable attorney fees) arising in favor of or asserted by third parties on account of
damage to property, personal injury, or death which injury, death, or damage, arising out of or in
any way results from the negligent acts or omissions of the Owner, its elected and appointed
officials, agents, and employees.
1.12.5 Indemnification and Hold Harmless. For other than professional services rendered, to the fullest
extent permitted by law, Consultant agrees to defend, indemnify, and hold the City harmless
against claims, demands, suits, damages, losses, and expenses connected therewith that may
be asserted or claimed against, recovered from or suffered by the City by reason of any injury or
loss, including but not limited to, personal injury, including bodily injury or death, property
damage, occasioned by, growing out of, or in any way arising or resulting from any intentional or
negligent act on the part of Consultant or Consultant's agents or employees.
For the professional services rendered, to the fullest extent permitted by law, Consultant 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 Consultant or Consultant's agents or employees.
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Consultant 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.
Should City be required to bring an action against the Consultant to assert its right to defense or
indemnification under this Agreement or under the Consultant's applicable insurance policies
required below the City 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 Consultant was obligated to defend the claim(s) or was obligated to indemnify
the City for a claim(s) or any portion(s) thereof.
The above obligations shall survive termination of this agreement
1.12.6 Equal Opportunity Employment. The Architect/Engineer shall be familiar with and be
responsible for and adhere to all Federal and State requirements regarding employment
practices. All hiring and other employment practices of the Architect/Engineer shall be in
accordance with Federal Equal Employment Opportunity laws, requirements and regulations
and shall be nondiscriminatory, based on merit and qualifications without regard to race, color,
religion, creed, political ideas, sex, age, marital status, physical or mental handicap, or national
origin.
1.13 TERMINATION OR SUSPENSION OF THIS AGREEMENT
1.13.1 If either party fails to comply with any condition of this Agreement at the time or in the manner
provided for, the other party, at its option, may terminate this Agreement and be released from
all obligations if the default is not cured within ten (10) days after written notice is provided to
the defaulting party. Said notice shall set forth the items to be cured. Additionally, the non -
defaulting party may bring suit for damages, specific performance, and any other remedy
provided by law. These remedies are cumulative and not exclusive. Use of one remedy does
not preclude use of the others. Notices shall be provided in writing and hand -delivered or
mailed to the parties at the addresses set forth on the cover sheet of this Agreement.
1.13.2 If the Architect/Engineer fails to fulfill his obligations and the Agreement is terminated, the
Owner may prosecute the Project to completion by contract or other means available. The
Architect/Engineer shall be liable to the Owner for any and all additional costs incurred due to
the Architect/Engineer's failure to perform. The rights and remedies available to the Owner
provided herein are in addition to any and all other rights and remedies provided by law or
equity.
1.13.3 If the Owner fails to make payments to the Architect/Engineer in accordance with this
Agreement, such failure shall be considered substantial non-performance and cause for
termination subject to the written notice provision above or, at the Architect/Engineer's option,
cause for suspension of performance of services under this Agreement. If the
Architect/Engineer elects to suspend services, prior to suspension of services the
Architect/Engineer shall also give ten (10) days written notice to the Owner. In the event of a
suspension of services, the Architect/Engineer shall have no liability to the Owner for delay or
damage caused the Owner because of such suspension of services. The Architect/Engineer
shall resume services upon corrective action or submission of a corrective action plan by the
Owner.
1.13.4 The Architect/Engineer cannot terminate this Agreement or suspend services if the Project is
suspended or delayed by the Owner. The Owner shall notify the Architect/Engineer concerning
any suspension or delay and may direct the Architect/Engineer to suspend services accordingly.
If the Owner suspends or delays the Project for 12 months or more, the Owner agrees to
negotiate compensation with the Architect/Engineer for reasonable expenses incurred for re-
starting work, and agrees to compensate the Architect/Engineer for any increases in costs or
expenses resulting from the suspension or delay.
1.13.5 Any and all expenses, termination costs, anticipated overhead and profit, and consequential
costs as a result of any delay, suspension, or termination of this Agreement are specifically
excluded and shall not be due the Architect/Engineer.
2 PART 2
2.1 PROJECT ADMINISTRATION AND MANAGEMENT (FOR PART 2)
2.1.1 The Architect/Engineer shall be responsible for managing all the ArchitectlEngineer's services and
administration of the Scope of Work under this Agreement in accordance with this Agreement. The
Architect/Engineer shall consult with the Owner, research applicable design criteria, attend Project
meetings, maintain a Project contact list, communicate with members of the Project team, issue
progress reports and meeting minutes via email to the Owner and Department unless another
manner of distribution is agreed upon.
2.1.2 The Architect/Engineer shall establish the requirements and all design parameters in cooperation
with the Owner. If Programming is part of the Architect/Engineer's services under this Agreement,
the completed and approved Programming Documents shall become the Project Program and the
basis of design of the Project
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2.1.3 The Architect/Engineer shall coordinate the services provided by the Architect/Engineer and the
Architect/Engineer's consultants with those services provided by the Owner and the Owner's
consultants.
2.1.4 Upon request of the Owner, the Architect/Engineer shall make presentations to explain the Project
Program, concepts, and design of the Project to other interested parties as coordinated by the
Owner.
2.1.5 The Architect/Engineer shall submit documents to the Owner at intervals appropriate to the
programming and concept process for purposes of evaluation and approval by the Owner. The
Architect/Engineer shall be entitled to rely on approvals received from the Owner in the further
development of the design.
2.1.6 The Architect/Engineer shall assist the Owner in connection with the Owner's responsibility for filing
documents required for the approval of governmental authorities having jurisdiction over the Project.
2.2 EVALUATION, DATA GATHERING. ANALYSIS STUDIES AND REPORTS
2.2.1 The Architect/Engineer shall provide a preliminary evaluation of the Initial Information furnished by
the Owner under this Agreement. The Architect/ Engineer shall review such information to ascertain
that it is consistent with the requirements of the Project and shall notify the Owner of any other
information or consultant services that may be reasonably needed for the Project.
2.2.2 The Architect/Engineer shall provide a preliminary evaluation of the Owner's site for the Project
based on the information provided by the Owner regarding site conditions, and the Owner's Initial
Information, schedule, and budget.
2.2.3 The Architect/Engineer shall perform a data gathering effort regarding the Owner's initial conditions
for the Project. Such data gathering effort shall involve, but not be limited to, an initial meeting to
define data gathering parameters, proposed site locations, potential utilities, traffic patterns,
pedestrian flow, aesthetic and architectural aspects of other facilities in the area in order to provide
essential input to the Project Program and the Owner's decision-making process.
2.2.4 For existing facilities to be renovated, demolished, or rehabilitated, data gathering shall consist of.
initial meeting to define data gathering parameters; preparation of site drawings and complete as -
built CAD drawings of the existing facility (or area affected by the work) of architectural, mechanical,
electrical and structural conditions if none are provided by the Owner; establishment of project
boundaries; code evaluation of the existing facility; determination of all utility connections;
hazardous materials investigation and report; prepare and analyze existing data pertaining to the
facility's function, location, and operation.
2.2.5 The Architect/Engineer shall prepare and maintain the information obtained in data gathering for
presentation to the Owner and inclusion into the Project Program.
2.2.6 If feasibility studies are requested by the Owner, the Architect/Engineer shall perform a detailed
investigation and analysis to determine the technical, financial, and functional viability of the
proposed Project. Fees for feasibility studies shall be incorporated into the costs of Programming or
indicated separately in the Architect/Engineer's compensation.
2.3 EVALUATION OF THE BUDGET AND ESTIMATE OF CONSTRUCTION COST
2.3.1 When the Project Program requirements have been sufficiently identified, the Architect/Engineer
shall prepare an Estimate of Construction Cost. This estimate may be based on current area,
volume, similar conceptual or recent construction history estimating techniques. If Programming is
included in the Architect/Engineer's services under this Agreement, the Architect/Engineer shall
update and refine the Estimate of Construction Cost throughout the programming process. The
Architect/ Engineer shall advise the Owner of any adjustments to previous Estimates indicated by
changes in Project requirements or general market conditions. If at any time the
Architect/Engineer's Estimate of Construction Cost exceeds the Owner's budgeted construction
cost, the Architect/Engineer shall make appropriate recommendations to the Owner to adjust the
Project's size, quality, or budget.
2.3.2 Evaluations of the Owner's budget for the Project, the Estimate of Construction Cost, and updated
Estimates of Construction Cost prepared by the Architect/ Engineer, are to represent the
Architect/Engineer's best judgment as a design professional familiar with the construction industry.
It is recognized, however, that neither the Architect/Engineer nor the Owner has control over the
cost of labor, materials or equipment, the Contractor's methods of determining bid prices, or over
competitive bidding, market or negotiating conditions. Accordingly, the Architect/Engineer cannot
and does not warrant or present that bids or negotiated prices will not vary from the Owner's budget
for the Project or from any Estimate of Construction Cost or evaluations prepared by the
Architect/Engineer.
2.3.3 The Construction Cost is part of the Project Budget and shall be the total "Hard" costs or, to the
extent the Project is not completed, the estimated cost to the Owner of all elements of the Project
programmed, designed, or specified by the Architect/Engineer. Estimates of Construction Cost
shall include the cost at projected market rates of labor and materials and equipment designed,
specified, selected or specially provided for by the Architect/Engineer, including the costs of
management or supervision of construction or installation provided by a separate construction
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manager or contractor, plus a reasonable allowance for their overhead and profit. The Estimate of
Construction Cost does not include "Soft" costs as defined in the Agreement
EXECUTION OF THIS AGREEMENT
This Agreement entered into as of the day and year first written above:
Architect/Engineer:
Sig1nature
Ben Lloyd
Print
Architect/President
Title
Is this company incorporated? Yes X No
Person signing for the AnhitectlEngineer shall be a principal owner
in the firm or a corporate officer and be legally able to bind the
Architect/Engineer to all provisions of this Agreement
Owner: CITY OF BOZEMAN
cvvvj-)� 5 �-
CHRIS KUKULSKI
City Manager
for the CITY OF BOZEMAN
�2 2 -1
Date
APPROVED AS TO FORM:
LIX GREG SULLIVAN
City Attorney
for the CITY OF BOZEMAN
Attest:
BY:
t a(Cler of orRntis46h)
�ao b J 0 i�
0.
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