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AGREEMENT FOR PROFESSIONAL SERVICES FOR RIGHT-OF-WAY ACQUISITION FOR THE LOWER MILLER CREEK ROAD IMPROVEMENTS PROJECT MT PLD 2002(1) CITY PROJECT 09-039 E ~ This Agreement made and entered into this /6 day of ,2010, in the City of Missoula, County of Missoula, State of Montana, by and between the City of Missoula, a municipal organization under the law of the State of Montana, hereinafter referred to as "OWNER" and DJ&A, p.e., hereinafter referred to as "ENGINEER". WHEREAS, Lower Miller Creek Road has been identified as a priority street improvements project by the Owner; WHEREAS, the OWNER desires to engage the ENGINEER to render professional surveying, and right of way acquisition services related to the acquisition of permanent public right of way easements for the above described project; and WHEREAS, the OWNER has complied with city procurement requirements regarding the selection of a professional ENGINEER; and WHEREAS, the OWNER desires to enter into an agreement with the ENGINEER as hereinafter provided for the acquisition of permanent public right of way easements; NOW THEREFORE, for and in consideration of the mutual promises and agreements set forth herein, the OWNER and ENGINEER mutually stipulate and agree to the following provisions: I. Employment of ENGINEER The OWNER hereby agrees to retain the professional services of the ENGINEER pursuant to the terms and provisions of this Agreement, and the ENGINEER agrees to perform the professional services identified pursuant to the terms and provisions of this Agreement in a competent, professional, and acceptable manner. II. Independent Engineering Contractor It is understood by the parties hereto that the ENGINEER is an independent engineering contractor and that neither its principals nor its employees are employees of the OWNER for purposes of tax, retirement system, or social security (FICA) withholding. It is further understood that pursuant to Section 39-71-401 MCA, the ENGINEER has obtained and will maintain at its expense for the duration of the Contract, coverage in a Workers' Compensation Insurance program with Page 1 of 12 ---PAGE BREAK--- either the State of Montana, a private insurance carrier, or an approved self- insurance plan in accordance with Montana State law for its principals and employees for the services to be performed hereunder and that the OWNER has no liability for vendor's workers' compensation insurance claims. The ENGINEER shall provide evidence of such coverage to the City Clerk prior to the city Clerk's validation of this Agreement. III. Contract Pricing Engineering services shall be at cost plus a negotiated fixed fee as the basis for compensation with a not to exceed amount of $18,147.50. The approved scope of work and cost breakdown is shown in Attachment A. IV. Liaison The OWNER'S designated liaison with the ENGINEER is Monte Sipe, Construction Projects Coordinator, 435 Ryman, Missoula, Montana, 59802-4928. The ENGINEER'S designated liaison with the OWNER is Christopher Anderson, Project Manager, DJ&A, P.C., 3203 Russell Street, Missoula, Montana, 59801. Any and all notices shall be sent to the project liaison. V. Effective Date and Time of Performance This Agreement takes effect as of the date entered into listed above. The project engineering services performed by the ENGINEER will be completed according to a schedule that is mutually agreed upon between the OWNER and the ENGINEER. VI. Scope and Fees of Professional Services A. The ENGINEER shall conform to the requirements of 18-2-121 and 18-2-122 MCA and all other codes of the State of Montana applicable to providing professional engineering services. B. the ENGINEER agrees to perform professional services in connection with the project and will serve as the OWNER'S representative in those phases of the project to which this agreement applies. C. The ENGINEER shail not be responsibie or iiabie for project safety, efficiency and/or adequacy ofthe OWNER'S, Contractor's plant, appliances, and methods or for any damage or injuries which may result from their failure and/or improper construction, maintenance or operations. This indemnification includes damage to public and/or private property improvements and/or injuries to any employees of the OWNER, the Contractors and/or the general public that may be caused or contributed to Page 2 of 12 ---PAGE BREAK--- by the activities related to the OWNER'S project. Project safety shall be the sole responsibility of the OWNER'S Contractor, the contractor's construction superintendents, designated safety officers, or a project safety officer designated and employed by the OWNER. D. Extra services of the ENGINEER when authorized by the OWNER shall be as follows and will imply additional cost as negotiated between the OWNER and the ENGINEER: 1. Revisions in project scope, boundary, contract packages, and associated added meetings due to amendments in project scope. 2. Additional field and laboratory tests for the project to assure general compliance with project specifications. 3. Reset monuments lost or destroyed by construction of this project when restoration of such monuments is not the liability of the Contractor. 4. Prepare change orders which require additional engineering design or construction staking. 5. Payments to governing bodies for project review fees if required. 6. Services associated with excavations required to locate buried utility conflicts. 7. Additional printing and disbursement of plans and documents as requested by the OWNER, over and above the (10) sets provided for in the base contract. 8. Additional services authorized by the OWNER which are not part of the defined scope of work. 9. Additional meetings held with property owners authorized by the OWNER which are not part of the defined scope of work. VII. Payment for Services A. The OWNER shall pay the ENGINEER on a percent complete basis for services related to all phases of the Lower Miller Creek Road Improvements Project. The total cost of services is summarized in Attachment A and by Page 3 of 12 ---PAGE BREAK--- this reference made a part of this Agreement. The OWNER shall pay the ENGINEER within 45 days of submitting invoices. VIII. The OWNER agrees to provide ENGINEER with all available information pertinent to the project and to perform the following services: A. Give thorough consideration to all reports, estimates, drawings, specifications, proposals, change orders, payment claims, and other documents presented by the ENGINEER and shall inform the ENGINEER of all decisions within a reasonable time. B. Hold all required special meetings, serve all required public and private notices and advertisements, receive and act upon all protests and requirements in the development of the Project and pay all costs incident thereto. C. Advertise for construction proposals and construction bond proposals from Bidders, open proposals at the appointed time and place and pay all costs incident thereto. D. Furnish the ENGINEER with a copy of any design and construction standards he shall require the ENGINEER to follow in the preparation of Contract Documents. E. Furnish the format and required content for the contract administrative documents (i.e. Notice Inviting Proposals, Information to Bidders, Performance Bond, Payment Bond, Proposal, General Conditions, Special Conditions, etc.). IX. The OWNER and the ENGINEER further agree to the following conditions: A. Conflict of Interest The ENGINEER covenants that it presently has no interest and will not acquire any interest, direct or indirect, in the project which would conflict in any manner or degree with the performance of its services hereunder. The ENGINEER further covenants that, in performing this Agreement, it will employ no person who has any such interest. B. Modification and Waiver This Agreement may not be modified, altered, or changed except pursuant to a written agreement signed by the parties hereto. A waiver of any term or condition of this Agreement or of any breach of this Agreement shall not be Page 4 of 12 ---PAGE BREAK--- deemed a waiver of any other term or condition of this Agreement or any part hereof or of any later breach of the Agreement. Any waiver must be in writing. C. Termination of Agreement This Agreement may be terminated as follows: 1. If, at any time before the date of completion, one of the parties determines that the other party has failed to comply with any of the terms and conditions of this Agreement, the aggrieved party may give notice, in writing, to the defaulting party of any deficiencies claimed. The notice will be sufficient for all purposes if it describes the default in general terms. If the defaulting party fails to cure and correct all defaults claimed within a reasonable period to be specified in the notice, the aggrieved may, with no further notice, declare this Agreement to be terminated in whole or in part. 2. If the ENGINEER is the defaulting party, it will thereafter be entitled to receive payment for those services satisfactorily performed to the date of termination less the amount of reasonable damages suffered by the OWNER by reason of the ENGINEER'S failure to comply with the Agreement's terms and conditions. 3. If the OWNER is the defaulting party it will pay the ENGINEER for those services satisfactorily performed to the date of the termination by the ENGINEER by reason of the OWNER'S failure to comply with the Agreement's terms and conditions. 4. Notwithstanding the above, the defaulting party is not relieved of liability to the aggrieved party for damaged sustained by the aggrieved party by virtue of any breach of this Agreement. 5. If the ENGINEER is the defaulting party, the OWNER roay withhold any payments to the Contractor for purposes of setoff until the exact amount of damages due the OWNER from ENGINEER is determined. D. Civil Rights Act of 1964 ENGINEER will abide by the provisions of the Civil Rights Act of 1964 which states that under Title VI, no person may, on the grounds of race, color, or national origin, be excluded from participation in, be denied, the benefits of, or be subjected to discrimination under any program or activity receiving Page 5 of 12 ---PAGE BREAK--- federal financial assistance. E. Section 109 of the Housing and Community Development Act of 1974 The ENGINEER will comply with the following provision: No person in the United States may on the grounds of race, color, national origin, or sex be excluded from participation in, be denied the benefits of or be subjected to discrimination under any program or activity funded in whole or in part with the funds made available under this title. any prohibition against discrimination on the basis of age under the Age Discrimination Act of 1975 or with respect to any otherwise qualified handicapped individual as provided in Section 504 of the Rehabilitation Act of 1973 will also apply to any such program or activity. F. Non-Discrimination The ENGINEER agrees that any and all hiring by them related to this Agreement shall be on the basis of merit and qualifications and there shall be no discrimination in employment on the basis race, ancestry, color, handicap, religion, national origin, sex, age, marital status, creed, ex-offender status, physical condition, political belief, public assistance status or sexual preference except where these criteria are reasonable bona fide occupational qualifications.. Qualifications mean such abilities as are genuinely related to competent performance of the particular occupational task. G. Ownership and Publication of Materials All reports, information, data and other materials prepared by the ENGINEER pursuant to this Agreement are the property of the OWNER, which has the exclusive and unrestricted authority to release, publish or otherwise use, in whole or part, information relating hereto. Any reuse without written verification or adaptation by the ENGINEER for the specific purpose intended will be at the OWNER'S sale risk and without liability or legal exposure to the ENGINEER. No material produced in whole or in part under this Agreement may be copyrighted or patented in the United States or in any other county without the prior written approvai of the OWNER and the above departments. H. Reports and Information The ENGINEER will maintain accounts and records, including personnel, property and financial records, adequate to identify and account for all costs pertaining to this Agreement and such other records as may be deemed Page 6 of 12 ---PAGE BREAK--- necessary by the OWNER to assure proper accounting for all project funds, both federal and non-federal shares. these records will be made available for audit purposes to the OWNER and its authorized representative and will be retained for three years after receipt of final payment for the services rendered under this Agreement unless permission to destroy them is granted by the OWNER. I. Access to Records It is expressly understood that the ENGINEER'S records relating to this Agreement will be available during normal business hours for inspection by the OWNER. J. Construction and Venue This Agreement will be construed under and governed by the laws of the State of Montana. In the event of litigation concerning it, venue is the Fourth Judicial District in and for the County of Missoula, State of Montana. K. Affirmative Action Policy Contractors, subcontractors, subgrantees, and other firms doing business with the OWNER or any agency connected with the OWNER must be in compliance with the City of Missoula's Affirmative Action Plan and Title 49, M.C.A., or forfeit the right to continue such business dealings. See AttachmentS. L. Insurance ENGINEER hereby certifies that it has and shall maintain during the time period of this Agreement, liability insurance in the minimum amount of $750,000 per claimant and $1,500,000 per occurrence that includes liability for accidents occurring during delivery or at the delivery sites that are attributable to the ENGINEER or it s agents' conduct. ENGINEER shall maintain, during the term of this contract, Professional Errors and Omissions Insurance in the minimum amount of $1 ,000,000.00. M. Previous Agreements This Agreement constitutes the entire understanding of the parties and is intended as a final expression of their agreement and a complete statement of the terms thereof. There are no promises, terms, conditions, or obligations, other than contained herein. This Agreement shall supersede all Page 7 of 12 ---PAGE BREAK--- previous communications, representations, or agreements, either oral or written, between the parties. N. Binding Effect This Agreement and all of the covenants hereof shall insure to the benefit of and be binding upon the OWNER and the ENGINEER respectively and his partners, successors, assigns and legal representatives. Neither the OWNER nor the ENGINEER shall have the right to assign, transfer or sublet his interest or obligations hereunder without written consent of the other party. O. Service Rates The service costs and hourly fee schedules contained in this Agreement are based on the ENGINEER's current 2010 service rates. Any extra work agreed upon and completed after December 31, 2010 shall reflect the current ENGINEER's fiscal year service rates. P. Indemnification The ENGINEER agrees to indemnify and hold harmless the OWNER, its officials, agents and employees, while acting within the scope of their duties, from and against all claims, demands and causes of action of any kind or character (including reasonable attorneys fees and costs of defense), to the extent caused by the ENGINEER'S negligent acts, errors or omissions arising out of services performed or in any way resulting from a negligent act, error or omission of the ENGINEER and/or its agents, employees, subcontractors or representatives under this Agreement. The OWNER agrees to indemnify and hold harmless the ENGINEER from and against all claims, demands and causes of action of any kind or character (including reasonable attorneys fees and costs of defense), to the extent caused by the OWNER'S negligent acts, errors or omissions arising out of services performed or in any way resulting from a negligent act, error or omission of the OWNER and/or its agents or employees under this Agreement. Q. Severability If a part of this Agreement is valid, all valid parts that are severable from the invalid part remain in effect. If a part of this Agreement is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications. Page 8 of 12 ---PAGE BREAK--- IN WITNESS WHEREOF, the parties have hereunto set their hands and seals on the day and year in this certificate first herein above written. ENGINEER: DJ&A, P.C 3203 S. Russell Street Missoula, MT 59801 OWNER: CITY OF MISSOULA Missoula City Hall Missoula, Montana 59802 John Engen, Mayor Date Martha L. Rehbein, City Clerk C.M.C Approved as to form: Date Jim Nugent, City Attorney Date Page 9 of 12 ---PAGE BREAK--- ATTACHMENT A TOTALS 1.1 Project setup and administration $ 463.50 1.2 Coordination with the City of Missoula $ 515.00 1.3 Coordination with $ 360.50 1.4 Quiet title coordination $ 594.00 Total Hours 19.0 Total Labor Cost $1,933.00 2.1 Order title commitments (4 parcels) $ 148.50 2.2 Order waiver valuations and reviews (2 parcels) $ 99.00 2.3 Draft right of way contracts (3 parcels) $ 731.00 2.4 Research water rights (3 parcels) $ 158.00 2.5 Prepare RTC documents (3 parcels) $ 148.50 2.6 Prepare claim for payment form (3 parcels) $ 79.00 2.7 Prepare easement documents (3 parcels) $ 297.00 2.8 Prepare legal descriptions (3 parcels) $ 354.00 2.9 Prepare easement exhibits (3 parcels) $ 776.00 2.10 Prepare exhibit for quiet title (1 parcel) $ 320.00 2.11 City of Missoula review $ 396.00 Total Hours 41.0 Total Labor Cost $3,507.00 3.1 Initial contact via telephone $ 198.00 3.2 Send draft ROW packet to owners (3 parcels) $ 286.50 3.3 Preparation for meeting with landowners (3 parcels) $ 336.00 3.4 Meet with land owners (3 parcels) $ 632.00 3.5 Make changes to ROW documents as necessary $ 514.00 3.6 Review ROW packets $ 385.50 3.7 Meet with land owners for signatures (3 parcels) $ 355.50 3.8 Partial release of trust indenture (3 parcels) $ 395.00 3.9 Final packet preparation for submittal to City (4 packets) $ 830.00 Total Hours 47.5 Total Labor Cost $3,932.50 Page 10 of 12 ---PAGE BREAK--- Pired Expenses Mileage Title commitments Waiver valuations Waiver valuation reviews Quiet title attorney fees Materials, postage, etc. $9,372.50 $9,372.50 $9,372.50 $25.00 $800.00 $4,600.00 $1,000.00 $2,250.00 $100.00 $8,775.00 Page 11 of 12 Total $18,147.50 ---PAGE BREAK--- ATTACHMENT B NON-DISCRIMINATION. All hiring shall be on the basis of merit and qualification and there shall be no discrimination in employment on the basis race, ancestry, color, handicap, religion, national origin, sex, age, marital status, creed, ex-offender status, physical condition, political belief, public assistance status or sexual preference except where these criteria are reasonable bona fide occupational qualifications. AFFIRMATIVE ACTION POLICY. Contractors, subcontractors, sub grantees, and other firms doing business with the City of Missoula must be in compliance with the City of Missoula's Affirmative Action Plan, and Title 49 Montana Codes Annotated, entitled "Human Rights" or forfeit the right to continue such business dealings. The City's Affirmative Action Policy Statement is: The Mayor of the City of Missoula is committed to implement affirmative action to provide all persons equal opportunity for employment without regard to race, ancestry, color, handicap, religion, national origin, sex, age, marital status, creed, ex-offender status, physical condition, political beliefs, public assistance status or sexual preference. In keeping with this commitment, we are assigning to all department heads and their staff the responsibility of actively facilitating equal opportunity for present employees, applicants, and trainees. This responsibility shall include assurance that employment decisions are based on furthering the principle of equal employment opportunity by imposing only valid requirements for employment and assuring that all personnel actions are administered on the basis of job necessity. Specific responsibility for development, implementation, monitoring and reporting will be assigned to the City Personnel staff under the supervision of the Mayor's Administrative Assistant. It is the policy of the City of Missoula to take affirmative action to eliminate discrimination in personnel policies and procedures that have adverse impact on the "affected class" unless sex, ex-offenders status, and/or physical or mental handicap relates to a bona fide occupational qualification. Equal opportunities shall be provided for all City employees during their terms of employment. All applicants for City employment shall be recruited from the available labor market, and employed on the basis of their qualifications and abilities. The City of Missouia, where practical, shall utilize minority owned enterprises and shall ensure that subcontractors and vendors comply with this policy. Failure of subcontractors and vendors to comply with this policy statement shall jeopardize initial, continued, or renewed funds. Our commitment is intended to promote equal opportunity in all employment practices and provide a positive program of affirmative action for the City of Missoula, its employees, program participants, trainees and applicants. Page 12 of 12