HomeMy WebLinkAbout20 CITY OF BOZEMAN and NWX LLC 9 30 20CITY OF BOZEMAN
INFRASTRUCTURE REIMBURSEMENT AGREEMENT
THIS AGREEMENT is made and effective this 1st day of October, 2020, 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, NWX, LLC with a mailing address of PO Box 11890,
Bozeman, MT, 59719 hereinafter referred to as “Developer.”
WHEREAS, the Developer desires to complete certain public wastewater system
improvements to benefit its development project, Master Site Plan Development Application
#19440, Northwest Crossing (the “Development”) and the City consents to accommodate the
Developer’s request and in doing so the City agrees to augment an ongoing wastewater system
improvement project, Norton East Ranch Sewer Outfall of the Davis Lane Lift Station & Norton
Sewer, Project Number 19012 (the “Project”) for the benefit of the Developer;
WHEREAS, the Developer will pay for all costs of the changes and improvements to the
Project desired by the Developer which will provide a benefit to the Development;
WHEREAS, the improvements include the design and construction of modifications to
the Project based on approved plans from Manhole #4 (intersection of Arabian Ave. and
Equestrian Lane) south to Manhole #1A (Baxter Lane) of the Project and other related
wastewater system improvements; and
WHEREAS, the City and the Developer desire to set forth the terms of their agreement in
writing; and
WHEREAS, part of this Agreement is contingent upon approval by the Bozeman City
Commission of a change order resolution as described herein.
Page 1 of 9
DocuSign Envelope ID: 3A176207-40A4-4300-9481-3958C2FEB486
Page 2 of 9
NOW THEREFORE, 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. Incorporation: The foregoing recitals of this Agreement are contractual and are hereby
incorporated by reference.
2. Improvements: The design and construction of improvements to the Project (the
“Improvements”) are generally shown in the attached conceptual modifications to the
Project (Exhibit 1).
3.Contracts for Design and Construction of Project: The City intends for the design,
engineering and construction of the Improvements to be conducted under current contracts
let by the City and intends to include the work of the Improvements by change order by
the City. To add the construction of the Improvements to the existing City contracts the
City Commission must approve one or more change order resolutions. As such, Developer
understands inclusion of the construction of the Improvements in the Project is contingent
upon approval of one or more change order resolutions by the Bozeman City Commission.
Developer also agrees that timing of construction of the Improvements is in the sole
discretion of the City. Developer will only be obligated to pay the City if the required
change orders resolutions are approved.
This Agreement does not give the Developer any interest or control in how the City
completes the Improvements nor does the Developer have an interest in or becomes a
beneficiary of the City’s design, engineering, or construction contracts.
4.Preliminary Project Costs and Schedule: The preliminary project costs for construction of
the Improvements is $148,672.47 and the preliminary projects costs for design and
engineering of the Improvements is $6,395.00 (the preliminary projects costs for
construction and engineering and design are collectively referred to as the “Preliminary
Project Costs”). The Preliminary Project Costs are based on estimates from City’s
contractor and engineer for the Project as shown in Exhibit 2. Exhibit 2 additionally shows
the “Preliminary Schedule” for the Improvements.
Developer acknowledges the City has no control over final change order pricing and
contract time from the City’s contractor, and as such understands and agrees the
Preliminary Project Costs are estimations and preliminary in nature. City will provide
Developer the final change order pricing and contract time amendments from the City’s
contractor and engineer before it is submitted to the City Commission. If the Developer
agrees to the change order pricing and time, based on the same being reasonably similar to
DocuSign Envelope ID: 3A176207-40A4-4300-9481-3958C2FEB486
Page 3 of 9
the Preliminary Project Costs and Preliminary Schedule, prior to the City Commission
adopting the necessary change order resolutions approving the inclusion of the
Improvements in the Project, the Developer will pay such costs prior to the City issuing
the change order to the contractor. Developer specifically recognizes and agrees the
ultimate financial obligation of the Developer for the Improvements will not be based on
the Preliminary Project Costs or Schedule but rather will be based on the actual costs and
time of construction of the Improvements as determined by the change order.
The City recognizes and agrees the Developer has, as of the date of this Agreement, already
paid the City for Preliminary Project Costs totaling $8,658 related to design and
engineering of the Improvements. The actual design cost is $6,395, and the Developer will
be reimbursed the difference between $8,658 and $6,395, but the actual design costs related
to engineering and design paid by the Developer are not refundable.
5. Payment: the Developer must pay the preliminary project costs for construction of the
improvements prior to approval of the change order and any additional amount for the
actual work for the completed Improvements.
6. Waiver of Claims/ Limitation of Liability/Indemnity. To the fullest extent permitted by
law, Developer waives all claims against the City, its officers and employees, agents,
insurers, and consultants any and all claims for or entitlement to special, incidental,
indirect, or consequential damages arising out of, resulting from, or in any way related to
the City’s construction of the Improvements, including delay of completion of the Project
that may affect the Development. Furthermore, the Developer recognizes that if the City
does not complete the construction of the Improvements as part of the Project the
Developer’s sole and exclusive remedy against the City is for the City to return the
Construction portion of Preliminary Project Costs provided by the Developer at the time
of change order resolution; however, as noted above City will not reimburse the design
portion of Preliminary Project Costs.
In addition to the above, Developer shall defend and indemnify the City from any claims
brought against the City by any of the Developer’s partners, investors, creditors, lenders,
agents, or any other entity associated with the Developer or the Development for claims
related to delay of or failure to complete the Improvements.
7. City Not Bound In Its Regulatory Authority. Developer recognizes the City enters this
Agreement in its capacity as a municipality constructing public infrastructure and not in its
regulatory role. As such, Developer agrees that nothing herein binds the City to make
certain approvals in its regulatory authority in review of subdivision, zoning, building or
other regulatory applications.
DocuSign Envelope ID: 3A176207-40A4-4300-9481-3958C2FEB486
Page 4 of 9
8. Representations and Warranties: Each party represents and warrants to the other that:
a. Execution of this Agreement does not violate any agreement, bylaw, statute or
ordinance binding on or applicable to such party; and
b. The individual executing this Agreement on behalf of the party is duly
authorized and empowered to execute this Agreement for the party and
following execution and delivery by both parties this Agreement will be a
legally binding obligation of the party, enforceable against the party in
accordance with its terms.
9. Representatives and Notices:
a. City’s Representative: The City’s Representative for the purpose of this
Agreement shall be Shawn Kohtz, City Engineer, 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 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 designated by the City in writing and
may receive approvals or authorization from such persons.
b. Developer’s Representative: The Developer’s Representative for the purpose
of this Agreement shall be Bryan Klein or such other individual as Developer
shall designate in writing. Whenever direction to or communication with
Developer is required by this Agreement, such direction or communication
shall be directed to Developer’s Representative; provided, however, that in
exigent circumstances when Developer’s Representative is not available, City
may direct its direction or communication to other designated Developer
personnel or agents.
c. Notices: All notices required by this Agreement shall be in writing and shall
be provided to the Representatives named in this Section. Notices shall be
deemed given when delivered, if delivered by courier to Party’s address shown
above during normal business hours of the recipient; or when sent, if sent by
email or fax (with a successful transmission report) to the email address or fax
number provided by the Party’s Representative; or on the fifth business day
DocuSign Envelope ID: 3A176207-40A4-4300-9481-3958C2FEB486
Page 5 of 9
following mailing, if mailed by ordinary mail to the address shown above,
postage prepaid.
10. Modification and Assignability: This Agreement may not be enlarged, modified or altered
except by written agreement signed by both parties hereto. The Developer may not
subcontract or assign Developer’s rights, including duties and obligations arising
hereunder, without the prior written consent of the City.
11. Non-Waiver: A waiver by either party of 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.
12. Attorney’s Fees and Costs: In the event it becomes necessary for either party 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
including the City Attorney’s Office staff.
13. 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.
14. Survival: Developer’s indemnification shall survive the termination or expiration of this
Agreement for the maximum period allowed under applicable law.
15. 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.
DocuSign Envelope ID: 3A176207-40A4-4300-9481-3958C2FEB486
Page 6 of 9
16. Severability: If any portion of this Agreement is held to be void or unenforceable, the
balance thereof shall continue in effect.
17. Applicable Law: The parties agree that this Agreement is governed in all respects by the
laws of the State of Montana.
18. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal
representatives, successors, and assigns of the parties.
19. 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.
20. Counterparts: This Agreement may be executed in counterparts, which together constitute
one instrument.
21. Integration: This Agreement and all Exhibits attached hereto constitute the entire
agreement of the parties. Covenants or representations not contained herein 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.
22. Consent to Electronic Signatures: The parties have consented to execute this Agreement
electronically in conformance with the Montana Uniform Electronic Transactions Act,
Title 30, Chapter 18, Part 1, MCA.
**** END OF AGREEMENT EXCEPT FOR SIGNATURES ****
DocuSign Envelope ID: 3A176207-40A4-4300-9481-3958C2FEB486
Page 7 of 9
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year first above written or as recorded in an electronic signature.
Dated this ____ day of _______________, 2020
NWX, LLC
_________________________________________
By: Bryan Klein, Manager
Dated this ____ day of _______________, 2020
CITY OF BOZEMAN
_________________________________________
By: City Manager
DocuSign Envelope ID: 3A176207-40A4-4300-9481-3958C2FEB486
10/1/2020
10/2/2020
Page 8 of 9
Exhibit 1
Improvement Conceptual Plans
(attached)
DocuSign Envelope ID: 3A176207-40A4-4300-9481-3958C2FEB486
Page 9 of 9
Exhibit 2
Preliminary Project Costs
Design = $6,395.00 (see attachment)
Construction = $148,672.47
Preliminary Schedule
Improvements commence on or about October 19, 2020 and conclude December 2, 2020
DocuSign Envelope ID: 3A176207-40A4-4300-9481-3958C2FEB486
W
L
W
L
W
L
W
L
N
O
R
T
H
FINAL PLANS - FOR BIDDING
2
5
0
2
5
5
0
V
E
R
T
I
C
A
L
S
C
A
L
E
:
1
"
=
1
0
'
H
O
R
I
Z
O
N
T
A
L
S
C
A
L
E
:
1
"
=
5
0
'
FILE:
PROJECT NO:
CAD:
QUALITY ASSURANCE:
DRAWING HISTORY
DATE DESCRIPTION
C
4
.
0
BOZEMAN, MONTANA
SANITARY SEWER MAIN EXTENSION
DAVIS LN LIFT STATION & NORTON SEWER
SS PLAN AND PROFILE ARABIAN AVENUE STA. 0+00 TO 5+00
19012
- -
-
-
-
-
-
BAXTER RE-DESIGN
-
-
-
-
-
09/04/20
BIDDING DOCUMENTS03/13/20
CMK/BMB/SEP/TT
19012_PNP_A_NORTON_PROD.DWG
-
25 0 25 50VERTICAL SCALE: 1"=10'HORIZONTAL SCALE: 1" = 50'NORTHP:\19012_Davis_Lane_Lift_Station_&_Norton_Sewer\CADD_C3D\PRODUCTION_DWG\19012_PNP_A_NORTON_PROD.dwg, C4.0, 9/4/2020 7:23:57 AM, tpirtz, 1:1EXHIBIT 1 DocuSign Envelope ID: 3A176207-40A4-4300-9481-3958C2FEB486
W
L
WL
W
L
NORTH
FINAL PLANS - FOR BIDDING
2502550VERTICAL SCALE: 1"=10'HORIZONTAL SCALE: 1"=50'
FILE:
PROJECT NO:
CAD:
QUALITY ASSURANCE:
DRAWING HISTORY
DATE DESCRIPTION
C
4
.
1
BOZEMAN, MONTANA
SANITARY SEWER MAIN EXTENSION
DAVIS LN LIFT STATION & NORTON SEWER
SS PLAN AND PROFILE ARABIAN AVENUE STA. 5+00 TO 11+00
19012
--
-
-
-
-
-
BAXTER RE-DESIGN
-
-
-
-
-
09/04/20
BIDDING DOCUMENTS03/13/20
CMK/BMB/SEP/TT
19012_PNP_A_NORTON_PROD.DWG
-
P:\19012_Davis_Lane_Lift_Station_&_Norton_Sewer\CADD_C3D\PRODUCTION_DWG\19012_PNP_A_NORTON_PROD.dwg, C4.1, 9/4/2020 7:21:06 AM, tpirtz, 1:1 DocuSign Envelope ID: 3A176207-40A4-4300-9481-3958C2FEB486
Copyright 2015 HDR Engineering, Inc.
Change Proposal Request No. _5___
Project Name: Davis Lane Lift Station and Norton East Ranch Outfall Sewer Project
Owner’s Project No. (if applicable):
Project Owner: City of Bozeman Regulatory Agency Project No. (if applicable):
HDR Project No. 10156423 Initiated by: X Engineer Contractor
Contractor: COP Construction Date: 9/4/20
Attention: The following change in the contract on this project is proposed. Please provide your proposed price for the cost of this change.
•A breakdown of cost shall be provided upon request by the Owner or Engineer.
•Work shall not commence until authorized by the Owner.
Description of the Proposed Change:
Modify the sewer alignment in Baxter Lane and deepen the sewer from MH1to MH3 in accordance to the attached revised Sheets C4.0 and
C4.1 dated 9/4/20. Provide pricing as a lump sum bid item titled “Additional Works Associated the Baxter Re-design” which will cover the
additional work associated with the proposed change to include upsizing the manhole from a 60-inch to an 84-inch drop manhole, deepening
the manhole, additional excavation depth, additional flowable fill, additional dewatering, additional surface restoration, additional backfill and
compaction and all other incidental work related to this change. Final payment will be made using the original design items and quantities
plus the “Additional Works Associated the Baxter Re-design” unit price bid.
By Tim Pirtz (Sanderson Stewart
All work shall be in accordance with the terms, stipulations, and conditions of the original Contract Documents. If the work herein provided for is Approved by Change Order, the time of completion will be:
HDR Recommendation:
Recommend Acceptance
Do Not Recommend Acceptance
Increased Decreased X Unchanged
By: HDR Engineering, Inc.
by calendar days.
Date
This change will: X Add Deduct No Change
Owner’s Action:
$ Accepted Not Accepted
General Contractor By: Owner
Date Date
148,672.47
x
7
09/29/2020
x
)
Sanderson Stewart
09/29/2020
EXHIBIT 2DocuSign Envelope ID: 3A176207-40A4-4300-9481-3958C2FEB486
Job No.
Date:
40 Hr Week 45 Hr Week 50 Hr Week 55 Hr Week 60 Hr Week
Hours Rate Hours
47 $60.40 $2,838.80 $0.00
47 $50.90 $2,392.30 $0.00
47 $58.10 $2,730.70 $0.00
47 $76.40 $3,590.80 $0.00
47 $58.10 $2,730.70 $0.00
47 $58.10 $2,730.70 $0.00
47 $50.90 $2,392.30 $0.00
47 $56.10 $2,636.70 $0.00
10 $88.40 $884.00 $0.00
$0.00 $0.00
$0.00 $0.00
$0.00 $0.00
$0.00 $0.00
$0.00 $0.00
$0.00 $0.00
$0.00 $0.00
$0.00 $0.00
$0.00 $0.00
$0.00 $0.00
$22,927.00 $0.00 $22,927.00
Hrs Wkd Cost / Rate Total Hrs Wkd Cost / Rate Total
47.0 $43.14 $2,027.58
47.0 $166.81 $7,840.07
47.0 $30.33 $1,425.51
47.0 $30.33 $1,425.51
47.0 $218.09 $10,250.23
47.0 $78.45 $3,687.15
47.0 $78.00 $3,666.00
5.0 $225.00 $1,125.00
5.0 $225.00 $1,125.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$32,572.05
%$0.00 %
$32,572.05
Sales Tax if Applicable
Subtotal Prior to Sales Tax Subtotal Prior to Sales Tax
Subtotal Rental Equipment
TOTAL EQUIPMENT
Sales Tax if Applicable
Subtotal COP Equipment
Skid Steer
335 Excavator
Pickup
Pickup
470 Excavator
380 Loader
Page 1/2
DAILY FORCE ACCOUNT/BACKCHARGE/EXTRA WORK REPORT
20106 Job Name/Location: Davis Lift Station
9/9/2020
EQUAL OPPORTUNITY EMPLOYER
Describe Work Perfomed: Baxter Lane
The information contained here-in shall represent the work performed on the date noted. COP Construction LLC reserves the
right to include overlooked expenses before final invoice. Labor rates based on composite week hours as marked:
LABOR USED - MARKUP INCLUDED
Name Classification Straight or Blended Total St. Time Overtime Total
Overtime TOTAL
Rate
Colton Jansma Foreman $2,838.80
Sidney Rains Pipelayer $2,392.30
Chris Wientjes Head Operator $2,730.70
Jon Berens Superintendent $3,590.80
Jason Rhoades Operator $2,730.70
DJ Lindenthal Operator $2,730.70
Laboer $2,392.30
Teamster $2,636.70
Eric Smith Project Manager $884.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
COP EQUIPMENT - MARKUP INCLUDED RENTAL EQUIPMENT - MARKUP INCLUDED
$0.00
Description
$0.00
Subtotal Labor Subtotal Labor Total Labor
Description
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
Dump Truck
Generator
Generator
$0.00
$0.00
$0.00
$0.00
$32,572.05
COPFORM OM10-10 - Daily Force Account/Back Charge/Extra Work Report, Rev. 03/02/2011
DocuSign Envelope ID: 3A176207-40A4-4300-9481-3958C2FEB486
U of M Cost / Rate
LS $17,525.00
LS $7,000.00
CY $115.00
%
U of M Cost / Rate
HR $125.00
Units U of M Cost / Rate Total U of M Cost / Rate Total
6 days $100.00 $600.00
5 Days $700.00 $3,500.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$4,100.00
15 %
15 %
3 %
$134,344.05
Add Markup - Material
Add Markup - Subcontractor
Add Gross Receipts Tax, Bonds & Insurance
$145,555.80
$4,366.67
Subtotal
**Gross Receipts Tax is included if applicable in your State.
Subtotal
Total Materials / Expenses
$22,927.00
$32,572.05
MATERIALS USED / EXPENSES - WITHOUT MARKUP
Itemize Completely
Page 2/2
DAILY FORCE ACCOUNT/BACKCHARGE/EXTRA WORK REPORT
Phone Service
Units
Pipe Fitings
Additional Flowable Fill
Per Diem - Salary
Per Diem - Hourly
Safety Training
Employment Expenses
Safety Equip. & Supplies
Total Subcontractors
$9,336.75
$1,875.00
$12,500.00
Itemize Completely
Manholes
$62,245.00
$12,500.00
$4,100.00
Total
$12,500.00
Units
100.0 Trucking
Itemize Completely
$62,245.00
Sales Tax if Applicable
Subtotal Prior to Sales Tax
$0.00
$62,245.00
$0.00
Units
1.0
1.0
328.0
$0.00
$0.00
Total
$17,525.00
$7,000.00
$37,720.00
$0.00
$0.00
GENERAL CONDITIONS (Markup Included When Contract Allows)
$0.00
$0.00
$0.00
$0.00
$0.00
SUBCONTRACTORS - WITHOUT MARKUP
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
Itemize Completely
Small Tools
Fuel Storage
Sanitary Facillities
Dumpster Units
Total General Conditions $4,100.00
SUMMARY
Labor
$0.00
$0.00
$0.00
Subtotal General Conditions Subtotal General Conditions $0.00
Bonus (if applies)
Office Rent
Site Security
Equipment
Signature of Project Representative Signature of COP Construction Representative
Grand Total $149,922.47
$0.00
$0.00
$0.00
Materials
Subcontractor
General Conditions
Construction Time Affected : Yes No
Notes on Contract Time:
COPFORM OM10-10 - Daily Force Account/Back Charge/Extra Work Report, Rev. 03/02/2011
5% max $625
$148,672.47
DocuSign Envelope ID: 3A176207-40A4-4300-9481-3958C2FEB486