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HomeMy WebLinkAbout15- RFQ UDC draft complete Apr 29 2015 Professional Services Agreement FY 2014 – FY 2015 Page 1 of 26 Request for Qualifications For PROFESSIONAL SERVICES TO UPDATE AND AMEND CHAPTER 38, BOZEMAN MUNICIPAL CODE, UNIFIED DEVELOPMENT CODE Proposals must be received no later than: Email OR Deliver proposal to: Stacy Ulmen, City Clerk PO Box 1230 121 North Rouse Ave Suite 202 Bozeman, MT 59771 agenda@bozeman.net NOTICE IS HEREBY given that the City of Bozeman is requesting statement of qualifications with proposed schedules and preliminary cost estimates to amend the City of Bozeman Unified Development Code proposing new or revised regulations and creating a user friendly code incorporating graphics and tables to effectively convey code information. All statements of qualifications must be in the format specified, enclosed in a sealed envelope and clearly identified with RFQ title, company name and due date. Friday, May 22, 2015 @ 5:00 pm Professional Services Agreement FY 2014 – FY 2015 Page 2 of 26 Deliver proposals via email at agenda@bozeman.net or to the City Clerk at the following address PO Box 1230, 121 North Rouse Ave, Suite 202, Bozeman, MT 59771 by Friday, May 22, 2015 @ 5:00 p.m. It is the sole responsibility of the proposing firm to ensure that proposals are received prior to the closing time as late submittals will not be accepted and will be returned unopened. DISCRIMINATION Discrimination in the performance of any agreement awarded under this RFQ on the basis of race, color, religion, creed, sex, age, marital status, national origin, or actual or perceived sexual orientation, gender identity or disability is prohibited. This prohibition shall apply to the hiring and treatment of the awarded entity’s employees and to all subcontracts. As such, each entity submitting under this notice shall include a provision wherein the submitting entity, or entities, affirms in writing it will not discriminate on the basis of race, color, religion, creed, sex, age, marital status, national origin, or because of actual or perceived sexual orientation, gender identity or disability and which also recognizes the eventual contract will contain a provision prohibiting discrimination as described above and that this prohibition on discrimination shall apply to the hiring and treatment of the submitting entity’s employees and to all subcontracts. Failure to comply with the above shall be cause for the City to deem the submittal non- responsive. The City of Bozeman is required to be an Equal Opportunity Employer DATED at Bozeman, Montana, this 1st day of May, 2015 Stacy Ulmen, CMC City Clerk For publication on: Sunday, May 10th Sunday, May 17th Professional Services Agreement FY 2014 – FY 2015 Page 3 of 26 I. PROJECT DESCRIPTION A. Introduction The City of Bozeman is Montana’s fourth largest municipality with a population of approximately 39,860 persons (July 1, 2013). The City includes approximately 12,477 acres in size with a planning area of 42,463 acres. Bozeman sits in Gallatin County and is the county seat for the County. The City of Bozeman continues to be the fastest growing community in Montana and is home to Montana State University. Between 2000 and 2013, the city’s population increased from 27,590 to 39,860 persons, an increase of 12,270 persons or 44.5 percent. In 2013 the Bozeman Yellowstone International Airport became Montana’s busiest airport with 812,093 passengers flying into and out of the facility. The City of Bozeman Community Development 2014 Annual Report can be read here. Bozeman is renowned for its natural beauty, world class fishing, skiing, abundant recreational opportunities, and a gateway to Yellowstone National Park. Bozeman is the regional commercial center for much of south central Montana with regional shopping mall, numerous national retailers, and a vibrant main street. Bozeman Deaconess Hospital, Montana State University, along with city, county and federal governmental agencies are the major employers. The state’s unadjusted unemployment rate is approximately 4.2 percent while Gallatin County is approximately 3.7 percent. The City of Bozeman seeks a professional consulting firm (“Consultant”) to evaluate and make recommendations on the development regulations to continue implementation of the Bozeman Community Plan (Community Plan). The Community Plan was adopted in 2009 replacing the previous Plan which was adopted in 2001. The Community Plan is implemented by the Bozeman Municipal Code (BMC). A variety of strategic and tactical changes in the BMC have been made but a holistic review has not occurred. B. Project Overview The purpose of this project is to review and update as needed the Unified Development Code (UDC) for the City of Bozeman in two related steps. With the adoption of the City’s Community Plan in 2009, the existence of numerous adopted neighborhood and special area plans, and rapid growth (infill and edge), the City recognizes the need to update its land development regulations and standards. Bozeman initially adopted zoning in 1934. Bozeman’s current UDC structure which includes zoning, subdivision, and infrastructure standards was established in 2004. Many older elements and standards were carried forward in 2004. The present text therefore does not always reflect best zoning, planning and infrastructure practices. Incremental modifications and updates Professional Services Agreement FY 2014 – FY 2015 Page 4 of 26 are ongoing resulting in a less efficient code to administer, unnecessary complexity, leading to questionable effectiveness in implementing the land use and design recommendations in Bozeman’s adopted plans. Large areas of Bozeman’s older neighborhoods are nonconforming. This has led to frequent variance requests and incremental amendments to the UDC. The older areas of town have experienced substantial reinvestment in the past 20 years and there is a growing interest in increased development in the historic core of the community. The additional intensity of use has created conflicts between new and existing users. Phased Update The City seeks to revise the development code in a two-step process. Step one is focused on the North Seventh Avenue corridor and urban renewal/tax increment district (TIF). Consultant will propose a redevelopment plan that focuses on mixed use infill that fulfills the goals of the urban renewal district. As the TIF matures, broader design guidelines are needed in order to address the goal of district revitalization. The key to altering the suburban development patterns of the area that seem to be devaluing property – large, barren and numerous parking lots, wasted space, and outdated site design – is to create a design plan that can guide the Board and the Commission in the allocation of limited funds to create the greatest impact to revitalize the district. Developing a vision and plan for the district will assist property owners in seeing the unrealized value in their property. Retrofitting is incremental and adaptive, but needs to be guided by an overall vision for the district. A new design plan with implementing zone district will help the NSURB to create implementing policies for funding infrastructure, façade and site improvements that maximize market forces to encourage diversification and redevelopment. Recommendations to address key design challenges to altering the suburban development pattern to create internal and external integration of the parts over time and over multiple parcels is a critical policy that is needed to move the district to the next stage. Innovative ideas to address zoning and subdivision regulations to overcome the existing fragmentation are needed. It is anticipated that this will be a mixed use corridor rehabilitation oriented district. Phase Two: Although the North 7th revisions are a part of the overall development code replacement and will run concurrently, the initial primary focus will be to complete step one prior to full implementation of step two. Step two will be to continue the evaluation of the Unified Development Code, Chapter 38, BMC make recommendations on the organization, presentation and create revised code for adoption. Professional Services Agreement FY 2014 – FY 2015 Page 5 of 26 It is requested that each proposal provide cost estimates for step one and step two anticipating independent but concurrent processes and a proposal including both steps as a complete package. The process will include public outreach efforts during the process. Step one is funded and can begin immediately. Funding for step two is being sought for the fiscal year beginning on July 1, 2015. The City of Bozeman, Montana (the City) is located in Gallatin County and is known as the “Treasure State” because of its rich mineral reserves. The mountains of Montana have yielded fortunes in gold and silver since the first substantial deposits were discovered in the mid 1800's. Another nickname for Montana is "Big Sky Country," made popular by a Montana State Highway Department promotion in the 1960's (originating from a book by Alfred Bertram Guthrie Jr. titled Big Sky). Currently, it is estimated that there are 38,695 residents of the City of Bozeman with the City growing by approximately two percent between 2011 and 2012. The City is governed by a City Commission/City Manager form of government. The City Commission is made up of four members plus a mayor that serves as the head of the City Commission. The City Commission appoints a City Manager to oversee the City’s eight departments. Additional information regarding the City of Bozeman may be obtained at: http://www.bozeman.net SCHEDULE Event Date/Time Publication Dates of RFQ Sunday, May 10 & 17 2015 Last Day for Questions/Clarifications Thursday , May 15, 2015 Deadline for Receipt of Proposals Friday, May 22, 2015 @ 5 pm Evaluation of Qualifications Tues. - Fri., May 26-29, 2015 Finalist interviews Mon. – Fri., June 1-5, 2015 Negotiation of Scope and Fee Tuesday, June 9, 2015 COMPLETION: Project to begin June 15, 2015 and be completed no later than December 19, 2016. CONTACTS Any administrative questions regarding bidding procedures should be directed to: Stacy Ulmen, City Clerk (406) 582-2321; agenda@bozeman.net Questions relating to scope of services and project management may be directed to: Professional Services Agreement FY 2014 – FY 2015 Page 6 of 26 Tom Rogers, Senior Planner (406) 582-2260; trogers@bozeman.net or Wendy Thomas, Director of Community Development, wthomas@bozeman.net LAST DAY FOR QUESTIONS The last day to submit questions to the Department of Community Development is Thursday, May 15, 2015 @ 5 pm. This will allow sufficient time for any addenda to be issued by the City to all bidders. All questions must be submitted in writing via email to the Department of Community Development at trogers@bozeman.net All RFQ questions and related answers will be posted to the City’s website for review by potential consultants interested in the project. AWARD OF CONTRACT The City reserves the right to reject any and all proposals, to contract work with whomever and in whatever manner the City decides, to abandon the work entirely and to waive any informality or non substantive irregularity as the interest of the City may require and to be the sole judge of selection process. The City also reserves the right to negotiate separately in any manner to serve the best interest of the City. The City retains the right at its sole discretion to select a successful vendor. SELECTION PROCESS AND RANKING CRITERIA A review committee will evaluate all responses to the RFQ that meet the submittal requirements and deadline. Submittals that do not meet the requirement or deadline will not be considered. The review committee will rank the proposals and arrange interviews with the finalist prior to selection. SELECTION CRITERIA Proposals will be evaluated based on the following criteria: • Thoroughness and understanding of the tasks to be completed • Background and experience in the analysis of regulations and development codes • Firm’s expertise and overall experience of personnel assigned to the work • Time required to accomplish the requested services • Responsiveness to requirements of the project • Public sector experience in municipal setting conducting similar tasks for the drafting of new development codes Professional Services Agreement FY 2014 – FY 2015 Page 7 of 26 DISCRETION AND LIABILITY WAIVER The City reserves the right to exercise discretion and apply its judgment with respect to all proposals submitted. The City reserves the right to reject all proposals, either in part or in its entirety, or to requests and obtain, from one or more of the consulting firms submitting proposals, supplementary information as may be necessary for City staff to analyze the proposals. The City may elect to award a contract in multiple phases, as is deemed to be in the City’s best interest. Should the City award projects in phases, the City reserves the right to award the phases to the same firm. The consultant, by submitting a response to this RFQ, waives all right to protest or seek any legal remedies whatsoever regarding any aspect of this RFQ. Although, it is the City’s intent to choose only a small number of most qualified consulting teams to interview with the City, the City reserves the right to choose any number of qualified finalists. This RFQ does not commit the City to award a contract, to defray any costs incurred in the preparation of a proposal pursuant to this RFQ or to procure or contract for work. All proposals submitted in response to this RFQ become the property of the City and public records and, as such, may be subject to public review. The City reserves the right to cancel, in part or in its entirety, this RFQ including, but not limited to: selection procedures, submittal date, and submittal requirements. If the City cancels or revises the RFQ, all interested firms will be notified using email. MANDATORY CONTENT AND SEQUENCE OF SUBMITTAL I. Submission Requirements and Instructions All requirements in this section are mandatory. The City reserves the right to waive any non-material variation. a) Proposers may submit response via email ONLY to this address: agenda@bozeman.net OR Submit one (1) original proposal package AND four (4) complete copies for each statement of qualifications, under sealed envelope, by mail or hand-delivery to the address shown on the front. Each submission must be marked on the outside with the Company’s name and the name of the project. Postmarks are NOT acceptable. Any documents or submittals received after the schedule closing time for receipt of submittals will be returned unopened. Professional Services Agreement FY 2014 – FY 2015 Page 8 of 26 b) Statements of qualifications and required attachments shall be submitted as specified and must be signed by officials authorized to submitter to the provisions. II. Submittal Outline and Content Assemble and submit each submittal in the order below and address the required content/questions. The order in which items are presented is important, as evaluators will follow this order: a) Table of Contents b) Cover Sheet. This sheet will serve as the cover of your proposal. c) One-Page Project Summary. Begin with a brief summary of the proposal. This summary should concisely describe the project, its goals, and the proposed plan of implementation. d) Company Description/Capability (not to exceed 3 pages) • Brief history of the company that includes the date of establishment and examples of relevant prior RFQ and current customers of similar attributes to the City of Bozeman. • Describe your experience and capacity to manage projects of the size and scope proposed. e) Informational content • A list of project team and their professional profile/credentials/experience. • Specific assignment of project team f) References (minimum 3) specifically in local/municipal/county/state agencies a) Name of agency b) Contact name to include: title, phone number and email c) Population of jurisdiction d) Number of employees e) Project start and completion date f) Brief summary of project g) Cost • Provided in a separate sealed envelope. Present a specific “not to exceed” fixed fee, including associated fees (i.e. printing costs, attendance at meetings, travel). • Estimates of cost will not be used for selection and will not be seen by the selection committee. h) Outline of Services (refer to Scope of Services) The City reserves the right to require the submittal of additional information that Professional Services Agreement FY 2014 – FY 2015 Page 9 of 26 supplements or explains proposal materials. PROJECT OBJECTIVES A. Create a Development Code that: a. Implements the recommendations of the City’s adopted Comprehensive Plan (2009) and its detailed neighborhood and special area plans. b. Integrates with and cross-references other land use related ordinances including the Montana Subdivision and Platting Act, Neighborhood Conservation Overlay District (NCOD), Bozeman Design Objectives Plan, Historic Preservation Design Guidelines, Parks, Recreation, Open Space, and Trails (PROST) Plan, long range transportation plan, water, sewer, and stormwater facility plans, Climate Action Plan, and other sub-area plans. c. User friendly and easy to understand with graphics that illustrate regulations. d. Incorporates land use-based (Euclidean) and form-based zoning provisions, where appropriate. e. Mixed-use zoning districts and attendant regulations for both built-up areas (in fill) of the city as well as greenfield development. f. Traditional neighborhood development zoning district for the Neighborhood Conservation Overlay District (NCOD). g. Provisions that will help the City achieve high-quality infill and redevelopment. h. Link land use and transportation (auto, transit, biking and pedestrian) i. Promotes and supports sustainability including BMPs for stormwater, water usage and lighting. j. Complies with state and federal requirements for environmental permits, telecommunications, etc. k. Promotes and supports a safe, diverse, healthy stock and affordable housing. A. Scope of Services and Work The selected consultant or team of consultants (collectively “Consultant”) shall work closely with staff to provide the following services as part of the Development Code Update: a. Develop a detailed timeline schedule with milestones leading toward the adoption part A and B of the Development Code Update. Timing or hierarchy of changes, i.e. what should be done first and why? b. Develop an appropriate broad-based public participation process that specifies how and when the public (including neighborhoods, businesses, the development community and other interested parties) will be engaged throughout the UDC rewrite process. The Consultant shall specify the methods it will use to achieve meaningful public participation in the project. The Consultant shall provide a public participation timeline that identifies Professional Services Agreement FY 2014 – FY 2015 Page 10 of 26 key points at which the public will be involved, and how that involvement will occur, how and when materials will be available and presented to the public. The Consultant shall provide technical capabilities for graphically communicating needed information. The Consultant shall also consider multiple means of obtaining input both during and outside of identified meetings. c. Develop and manage a system to track public input throughout the development, revision process, and adoption of the revised code. d. Prepare a draft and final memorandum that summarizes the input gathered during the issue identification process. e. Complete a technical analysis and evaluation of Bozeman’s current UDC. This analysis and evaluation shall be made based on the Consultant’s knowledge of innovative, proven, and effective zoning, land use and development practices such as BMPS, hybrid zoning codes (i.e. codes that incorporate form-based and conventional land use-based provisions) and form-based codes, including traditional neighborhood development ordinances. The analysis and evaluation shall include the Consultant’s findings regarding how well the current UDC is integrated with the City’s guidelines listed above. f. Prepare a draft UDC that is based on the final technical analysis. Consultant shall describe its approach to incorporating the project objectives into the discussion draft. The proposal shall include the projected number of meetings/presentations/workshops, etc. the Consultant will conduct in order to gather input and complete reviews and revisions of the discussion draft. These meetings/presentations, etc. are anticipated to be part of the development of a public hearing draft UDC document and not part of the public hearing review and adoption process. g. Attend, present and participate in community outreach meetings with staff to introduce changes/updates to the UDC, highlighting the proposed format, summarizing proposed regulations and development incentives, presenting proposed land use processes, explaining what factors shaped the changes and identifying alternative strategies considered in their development. This includes the development of electronic outreach data summary tools to distribute via web presence, social media, and local government television channel. h. Concurrently, as appropriate, with the community outreach meetings the Consultant shall, attend, present and participate in additional outreach study sessions with the Planning Board, Zoning Commission, North Seventh Urban Renewal Board, Historic Preservation Board, Parks and Recreation Board, Community Affordable Housing Advisory Board, and Chamber of Commerce. These meetings would focus on the specific interests of each group regarding the proposed regulations. i. Public Hearings with Planning Board and Zoning Commission. Professional Services Agreement FY 2014 – FY 2015 Page 11 of 26 j. Revise the Draft UDC integrating comments from the public outreach for presentation. k. Work sessions and public hearings with City Commission (two work sessions and two public hearings) l. Upon adoption of the Final UDC Update for both step A and B by the City Commission, the consultant will prepare a final adopted version with the date of adoption prominently displayed on the front cover and throughout the document to distinguish it as the official document from other versions. II. BACKGROUND, ISSUES AND PRIMARY QUESTIONS A. Primary Questions 1) Make recommendations on organization of development regulations. 2) Recommendations on format 3) How much public outreach 4) How much internal staff support will be allocated to the project 5) Create new and/or different overlay or zoning districts for infill, existing development, green-field, or hybrid. 6) Administrative Policy: Which items presently incorporated in the municipal code should be moved to a location outside of ordinance and then placed in administrative policies to enable more effective updates and management? B. Known Issues 1. Changing community character from rural town to small city, many of the base standards were established in the 1970’s with some updates since – need standards updated for changed conditions. 2. Infill supportive provisions which respect community character of existing development, e.g. transitions between differing intensities such as edge conditions of B-3 and R districts. Consideration of how transitions happen within districts. 3. Accessory buildings 4. Accessory dwelling units – general applicability of standards 5. Differentiating zoning districts for long standing developed area and new areas. 6. Solar and other sustainability features including water conservation, stormwater best management practices and LED lighting Professional Services Agreement FY 2014 – FY 2015 Page 12 of 26 7. Arterials setback standards 8. Update of design standards and integration into districts rather than as overlays 9. Consider adjustments for site planning thresholds 10. PUD – Overlay, separate district or use 11. Open Space and park land clarity for code users 12. Affordable Housing incentives 13. No infill development regulations 14. No mixed use infill zone district or infrastructure standards 15. Interface between B-3 zone district and historic residential neighborhoods. C. Required Tasks  Review and clarify distinctions between standards relevant to Uses versus standards relevant to Structures  Review for compliance re federal mandates such as telecom, water quality, etc.  Draft distinct districts for existing vs. new development where character is still evolving  New districts to absorb design standards  Formatting to facilitate illustrations and annotations within the text  Incorporating affordable housing regulations into UDC  Provide clarity for all users D. Background The current Zoning Ordinance can be reviewed on the Municode web site: https://www.municode.com/library/mt/bozeman/codes/code_of_ordinances Bozeman’s plans and policies can be found at the link below and include the following documents. http://www.bozeman.net/Departments-(1)/Planning/Plans-and-Planning Bozeman Community Plan Sub Area Plans Currently under review Bozeman Design Objectives Plan Historic Preservation Guidelines North 19 Avenue/Oak Street Corridor Plan North 7th Avenue Plan Downtown Bozeman Improvement Plan Professional Services Agreement FY 2014 – FY 2015 Page 13 of 26 Facilities Plans Currently under review Economic Development Plan Parks and Recreation Plan Water Facilities Plan Yes Storm Water Plan Fire Protection Plan Greater Bozeman Area Transportation Plan, 2007 Plan Update Yes Wastewater Plan Yes Staff participation and support 1. Review existing documents and provide these materials to the consultant at the time of notice to proceed. a. Staff evaluation of successes and deficiencies of existing UDC. b. Staff identification of comprehensive plan text, goals, objectives, and policies applicable to UDC. c. Suggested revisions and updates to regulatory elements in zoning reviews and standards relative to the design objectives plan. d. Identify any specific attributes desired for the final document. 2. Drafts a. Coordination and outreach in Bozeman for public access to and review of documents b. Identification of staff suggestions for necessary elements of good design and which elements may be mandatory and which are desired c. Suggestions of staff for more objective process and how it might be integrated with proposed design standards d. Receive and organize all comments for forwarding to consultant and City Commission. May include responses to comment when appropriate 3. Meetings and site visits a. Coordinate scheduling of consultant visits with staff and officials b. Provide materials to meeting participants in advance for review c. Arrange for materials such as meeting room reservations and resources necessary for site investigation d. Meet with consultant for discussion e. Conduct solicitation of public input and coordinate all public hearings Professional Services Agreement FY 2014 – FY 2015 Page 14 of 26 4. Work Product a. Review initial draft and make necessary duplications and distribution for review by others b. Review public hearing draft, ensure public distribution of draft, prepare staff reports as needed c. Receive final draft and process for adoption followed by necessary duplication and distribution in printed and electronic form, and d. Support for Sharepoint content management tool Deliverables must comply with the Americans with Disabilities Act. To comply with the ADA, documents posted online, including, but not limited to, Adobe PDF files, Microsoft Word documents, Microsoft PowerPoint presentations, and online flipbooks, must be screen-reader friendly. Accessible documents are often part of web-based information or used for support documents. Therefore, under Section 508 standards and WCAG accessibility guidelines, it is critical to ensure all support documents made available to end users can be accessed by people with disabilities. Therefore, any digital material created for the City of Bozeman and its websites will maintain the requirements outline in WCAG 2.0 AA Convention guidelines, Section 508 "Electronic & Accessibility Standards" of the U.S. Rehabilitation Act, the Usability.gov accessibility Guidelines, and ADA Title II State & Local Government nondiscrimination requirements. Professional Services Agreement FY 2014 – FY 2015 Page 15 of 26 *THIS DOCUMENT MUST BE COMPLETED, EXECUTED AND SUBMITTED WITH THE PROPOSAL FORM* THE REPRESENTATIVES MADE HEREIN ARE MADE UNDER PENALTY OF PERJURY NO PROPOSAL IS VALID UNLESS SUBMITTED ON THIS FORM AND SIGNED BY AUTHORIZED AGENT FOR YOUR COMPANY. SUBMITTED BY: COMPANY NAME: ADDRESS: CITY: STATE: ZIP: TELEPHONE: EMAIL: SIGNATURE: (Authorized Agent) NAME: (Please Print) TITLE: DATE: NOTE: If proposer is a corporation, the legal name of the corporation shall be set forth above, together with the signature of authorized officers or agents; if bidder is a partnership, the true name of the firm shall be set forth above, together with the signature of the partnership; and if bidder is an individual, his signature shall be placed above. Professional Services Agreement FY 2014 – FY 2015 Page 16 of 26 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this _____ day of ____________, 2015, by and between the CITY OF BOZEMAN, MONTANA, a self governing municipal corporation organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as “City,” and, ____________, _______________, hereinafter referred to as “Contractor.” In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree as follows: 1. Purpose: City agrees to enter this Agreement with Contractor to perform for City services described in the Scope of Services attached hereto as Attachment “A” and by this reference made a part hereof. 2. Term/Effective Date: This Agreement is effective upon the date of its execution [and will terminate on the _____ day of ______________, 201__. 3. Scope of Work: Contractor will perform the work and provide the services in accordance with the requirements of the Scope of Services. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. 4. Payment: City agrees to pay Contractor the amount specified in a Scope of Services. Any alteration or deviation from the described services that involves additional costs above the Agreement amount will be performed by Contractor after written request by the City, and will become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing upon any additional charges. 5. Contractor’s Representations: To induce City to enter into this Agreement, Contractor makes the following representations: a. Contractor has familiarized itself with the nature and extent of this Agreement, the Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules, and regulations that in any manner may affect cost, progress or performance of the Scope of Services. 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 Professional Services Agreement FY 2014 – FY 2015 Page 17 of 26 enter into and perform this Agreement and grant the rights granted in it; and that its performance of this Agreement shall not infringe upon or violate the rights of any third party, whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal, state and municipal laws. The City will not determine or exercise control as to general procedures or formats necessary to have these services meet this warranty. 6. Independent Contractor Status/Labor Relations: The parties agree that Contractor is an independent contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Contractor is not subject to the terms and provisions of the City’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. Contractor is not authorized to represent the City or otherwise bind the City in any dealings between Contractor and any third parties. Contractor shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39, Chapter 71, MCA, and the Occupational Disease Act of Montana, Title 39, Chapter 71, MCA. Contractor shall maintain workers’ compensation coverage for all members and employees of Contractor’s business, except for those members who are exempted by law. Contractor shall furnish the City with copies showing one of the following: (1) a binder for workers’ compensation coverage by an insurer licensed and authorized to provide workers’ compensation insurance in the State of Montana; or (2) proof of exemption from workers’ compensation granted by law for independent contractors. Contractor shall indemnify, defend, and hold the City harmless from any and all claims, demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in connection with any labor problems or disputes or any delays or stoppages of work associated with such problems or disputes. Contractor shall post a legible statement of all wages and fringe benefits to be paid to the Contractor’s employees and the frequency of such payments (i.e., hourly wage employees shall be paid weekly). Such posting shall be made in a prominent and accessible location at the Contractor’s normal place of business and shall be made no later than the first day of services provided under this Agreement. Such posting shall be removed only upon expiration or termination of this Agreement. 7. Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of an expert witness and Professional Services Agreement FY 2014 – FY 2015 Page 18 of 26 consultants), losses, expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional misconduct of the Contractor; (ii) any negligent, reckless, or intentional misconduct of any of the Contractor’s agents; or (iii) the negligent, reckless, or intentional misconduct of any other third party. For the professional services rendered, to the fullest extent permitted by law, Contractor agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees, to the extent caused by the negligence or willful misconduct of the Contractor or Contractor’s agents or employees. Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the indemnities’ which would otherwise exist as to such indemnities’. Contractor’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. Should any indemnity described herein be required to bring an action against the Contractor to assert its right to defense or indemnification under this Agreement or under the Contractor’s applicable insurance policies required below the indemnity shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines the Contractor was obligated to defend the claim(s) or was obligated to indemnify the indemnity for a claim(s) or any portion(s) thereof. In the event of an action filed against City resulting from the City’s performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. Contractor also waives any and all claims and recourse against the City or its officers, 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. Professional Services Agreement FY 2014 – FY 2015 Page 19 of 26 In addition to and independent from the above, Contractor shall at Contractor’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the Contractor in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Contractor in subsection (a) of this Section. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the City without limit and without regard to the cause therefore and which is acceptable to the City and Contractor shall furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows: • Workers’ Compensation – statutory; • Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Automobile Liability - $1,000,000 property damage/bodily injury; $2,000,000 annual aggregate; and • Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate. The above amounts shall be exclusive of defense costs. The City of Bozeman, its officers, agents, and employees, shall be endorsed as an additional or named insured on a primary non- contributory basis on both the Commercial General and Automobile Liability policies. The insurance and required endorsements must be in a form suitable to City and shall include no less than a sixty (60) day notice of cancellation or non-renewal. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. Contractor shall notify City within two (2) business days of Contractor’s receipt of notice that any required insurance coverage will be terminated or Contractor’s decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. 8. Termination for Contractor’s Fault: a. If Contractor refuses or fails to timely do the work, or any part thereof, or fails to perform any of its obligations under this Agreement, or otherwise breaches any terms or conditions of this Agreement, the City may, by written notice, terminate this Agreement and the Contractor’s right to proceed with all or any part of the work (“Termination Notice Due to Contractor’s Fault”). The City may then take over the work and complete it, either with its own resources or by re-letting the contract to any other third party. Professional Services Agreement FY 2014 – FY 2015 Page 20 of 26 b. In the event of a termination pursuant to this Section 8, Contractor shall be entitled to payment only for those services Contractor actually rendered. c. Any termination provided for by this Section 8 shall be in addition to any other remedies to which the City may be entitled under the law or at equity. d. In the event of termination under this Section 8, Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 9. Termination for City’s Convenience: a. Should conditions arise which, in the sole opinion and discretion of the City, make it advisable to the City to cease performance under this Agreement City may terminate this Agreement by written notice to Contractor (“Notice of Termination for City’s Convenience”). The termination shall be effective in the manner specified in the Notice of Termination for City’s Convenience and shall be without prejudice to any claims that the City may otherwise have against Contractor. b. Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise directed in the Notice, the Contractor shall immediately cease performance under this Agreement and make every reasonable effort to refrain from continuing work, incurring additional expenses or costs under this Agreement and shall immediately cancel all existing orders or contracts upon terms satisfactory to the City. Contractor shall do only such work as may be necessary to preserve, protect, and maintain work already completed or immediately in progress. c. In the event of a termination pursuant to this Section 13, Contractor is entitled to payment only for those services Contractor actually rendered on or before the receipt of the Notice of Termination for City’s Convenience. d. The compensation described in Section 13(c) is the sole compensation due to Contractor for its performance of this Agreement. Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost 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 Professional Services Agreement FY 2014 – FY 2015 Page 21 of 26 expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b. In the event Contractor wants to assert a claim for damages of any kind or nature, Contractor shall provide City with written notice of its claim, the facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, within ten (10) days of the facts and circumstances giving rise to the claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights to assert such claim. 11. Representatives: a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be _________________ (insert job title) or such other individual as City shall designate in writing. Whenever approval or authorization from or communication or submission to City is required by this Agreement, such communication or submission shall be directed to James Goehrung as the City’s Representative and approvals or authorizations shall be issued only by such Representative; provided, however, that in exigent circumstances when City’s Representative is not available, Contractor may direct its communication or submission to other designated City personnel or agents as listed above and may receive approvals or authorization from such persons. b. Contractor’s Representative: The Contractor’s Representative for the purpose of this Agreement shall be _____________________ or such other individual as Contractor shall designate in writing. Whenever direction to or communication with Contractor is required by this Agreement, such direction or communication shall be directed to Contractor’s Representative; provided, however, that in exigent circumstances when Contractor’s Representative is not available, City may direct its direction or communication to other designated Contractor personnel or agents. 12. Permits: Contractor shall provide all notices, comply with all applicable laws, 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. Professional Services Agreement FY 2014 – FY 2015 Page 22 of 26 13 Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non- discrimination, affirmative action, and utilization of minority and small business statutes and regulations. 14. Nondiscrimination: The Contractor will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. The Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. The Contractor shall require these nondiscrimination terms of its sub- Contractors providing services under this agreement. 15. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent engaged in services to the City under this Agreement while on City property or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. The Contractor shall be responsible for instructing and training the Contractor's employees and agents in proper and specified work methods and procedures. The Contractor shall provide continuous inspection and supervision of the work performed. The Contractor is responsible for instructing his employees and agents in safe work practices. 16. Modification and Assignability: This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Contractor may not 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. Professional Services Agreement FY 2014 – FY 2015 Page 23 of 26 17. Reports/Accountability/Public Information: Contractor agrees to develop and/or provide documentation as requested by the City demonstrating Contractor’s compliance with the requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons authorized by the City to inspect and copy its books and records for the purpose of verifying that the reimbursement of monies distributed to Contractor pursuant to this Agreement was used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The Contractor shall not issue any statements, releases or information for public dissemination without prior approval of the City. 18. Non-Waiver: A waiver by either party any default or breach by the other party of any terms or conditions of this Agreement does not limit the other party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 19. Attorney’s Fees and Costs: That in the event it becomes necessary for either Party of this Agreement to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel to include City Attorney. 20. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. 21. Dispute Resolution: a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 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. Professional Services Agreement FY 2014 – FY 2015 Page 24 of 26 24. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 25. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 26. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 27. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. 28. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 29. Integration: This Agreement and all Exhibits attached hereto constitute the entire agreement of the parties. Covenants or representations not contained therein or made a part thereof by reference, are not binding upon the parties. There are no understandings between the parties other than as set forth in this Agreement. All communications, either verbal or written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by reference. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** Professional Services Agreement FY 2014 – FY 2015 Page 25 of 26 IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first above written. CITY OF BOZEMAN, MONTANA ____________________________________ CONTRACTOR (Type Name Above) By________________________________ By__________________________________ Chris Kukulski, City Manager Print Name: Print Title: ____________________________ APPROVED AS TO FORM: By_______________________________ Greg Sullivan, Bozeman City Attorney Professional Services Agreement FY 2014 – FY 2015 Page 26 of 26 Statement of Non-discrimination – Attachment A Each entity shall include a provision requiring submitting entity to affirm in writing it will not discriminate on the basis of race, color, religion, creed, sex, age, marital status, national origin, or because of actual or perceived sexual orientation, gender identity or disability and recognizing the eventual contract will contain a provision prohibiting discrimination as described above and this prohibition on discrimination shall apply to the hiring and treatment or proposer’s employees and to all subcontracts. (name of entity submitting) hereby affirms it will not discriminate on the basis of race, color, religion, creed, sex, age, marital status, national origin, or because of actual or perceived sexual orientation, gender identity or disability and recognizing the eventual contract will contain a provision prohibiting discrimination as described above and this prohibition on discrimination shall apply to the hiring and treatment or bidder’s employees and to all subcontracts. Name and title of person authorized to sign on behalf of submitter