HomeMy WebLinkAbout16- HDR Engineering PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this 29th day of February, 2016, 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, HDR Engineering, Inc., 1001 SW 5tn Avenue, Suite 1800 Portland, OR
97204-1134 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:
L 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.
f
g
2. Term/Effective Date: This Agreement is effective upon the date of its execution
and will terminate on the 15t day of November, 2016.
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 II
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. I
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 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 for similar services on similar
projects at the same time and in the same locale; that it has the power to enter into and
perform this Agreement and grant the rights granted in it; and that its performance of this
1
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
standard of care.
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.
7. IndemnitV/Waiver of Claims/Insurance: For other than professional services
rendered, to the fullest extent permitted by law, Contractor agrees to release, defend,
indemnify, and hold harmless the City, its agents, representatives, employees, and officers
(collectively referred to for purposes of this Section as the City) from and against any and all
claims, demands, actions, fees and costs (including attorney's fees and the costs and fees of an
expert witness and consultants), losses, expenses, liabilities (including liability where activity is
inherently or intrinsically dangerous) or damages of whatever kind or nature connected
therewith and without limit and without regard to the cause or causes thereof or the
negligence of any party or parties that may be asserted against, recovered from or suffered by
the City occasioned by, growing or arising out of or resulting from or in any way related to: (i)
2
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,
f
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. j
These obligations shall survive termination of this Agreement and the services
performed hereunder. j
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
i
I
3
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 thirty (30) 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
materially breaches any terms or conditions of this Agreement, the City
may, by written notice provide a reasonable opportunity for the
Contractor to cure and the failure of the Contractor to so cure 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
4
may then take over the work and complete it, either with its own
resources or by re-letting the contract to any other third party.
b. In the event of a termination pursuant to this Section 8, Contractor shall
be entitled to payment only for those services Contractor actually rendered.
C. Any termination provided for by this Section 8 shall be in addition to any
other remedies to which the City may be entitled underthe 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
I
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 I
termination.
f
10. Limitation on Contractor's Damages; Time for Asserting Claim:
5
�,
a. In the event of a claim for damages by Contractor under this Agreement,
Contractor's damages shall be limited to contract damages and Contractor hereby
expressly waives any right to claim or recover consequential, special, punitive, lost
business opportunity, lost productivity, field office overhead, general conditions costs,
or lost profits damages of any nature or kind.
b. In the event Contractor wants to assert a claim for damages of any kind
or nature, Contractor shall provide City with written notice of its claim, the facts and
circumstances surrounding and giving rise to the claim, and the total amount of
damages sought by the claim, within ten (10) days of the facts and circumstances giving
rise to the claim. In the event Contractor fails to provide such notice, Contractor shall
waive all rights to assert such claim.
11. Representatives:
a. City's Representative: The City's Representative for the purpose of this
Agreement shall be (insert job title) or such other individual as City
shall designate in writing. Whenever approval or authorization from or communication
or submission to City is required by this Agreement, such communication or submission
shall be directed to James Goehrung as the City's Representative and approvals or
authorizations shall be issued only by such Representative; provided, however, that in
exigent circumstances when City's Representative is not available, Contractor may direct
its communication or submission to other designated City personnel or agents as listed
above and may receive approvals or authorization from such persons.
b. Contractor's Representative: The Contractor's Representative for the
purpose of this Agreement shall be or such other individual as
Contractor shall designate in writing. Whenever direction to or communication with
Contractor is required by this Agreement, such direction or communication shall be
directed to Contractor's Representative; provided, however, that in exigent
circumstances when Contractor's Representative is not available, City may direct its
direction or communication to other designated Contractor personnel or agents.
12. Permits: Contractor shall provide all notices, comply with all applicable laws,
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.
6
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
s
prevention plans and related testing. City shall have the right to request proof of such l
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
i
shall provide continuous inspection and supervision of the work performed. The Contractor is
responsible for instructing his employees and agents in safe work practices.
I
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.
lj
7
I
17. Reports/AccountabilitV/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. Attorne `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 attorneys 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
8
paragraphs to which they refer.
24. Severability: If any portion of this Agreement is held to be void or
unenforceable, the balance thereof shall continue in effect.
25. Applicable Law: The parties agree that this Agreement is governed in all
respects by the laws of the State of Montana.
26. Binding Effect: This Agreement is binding upon and inures to the benefit of the
heirs, legal representatives, successors, and assigns of the parties.
27. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the
parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or
enforced by a third party.
28. Counterparts: This Agreement may be executed in counterparts, which together
constitute one instrument.
29. Integration: This Agreement and all Exhibits attached hereto constitute the
entire agreement of the parties. Covenants or representations not contained therein or made a
part thereof by reference, are not binding upon the parties. There are no understandings
between the parties other than as set forth in this Agreement. All communications, either
verbal or written, made prior to the date of this Agreement are hereby abrogated and
withdrawn unless specifically made a part of this Agreement by reference.
**** END OF AGREEMENT EXCEPT FOR SIGNATURES ****
i
i
i
I�
I�
;I
1
9
F
I
I
IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and
year first above written.
CITY OF BOZEMAN, MONTANA HDR ENGINEERING, INC.
CONTRACTOR(Type Name Above)
By -QA
Chris Kukulski, City Manager
Print Name: 1
Print itle:
APPROVED AS TO FORM:
By "
G� g Sullivan, Bozeman City Attorney
10
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.
MD� > � , (name of entity submitting) hereby affirms
it will not discriminate n the basi 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.
Cpa nd titl f person thou ed to sign on behalf of submitter
t
i
s
)
s
11
f