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1 AGREEMENT FOR PROFESSIONAL AND CONSULTANTING SERVICES FOR WOOD RECLAMATION RESEARCH AND COST BENEFIT ANALYSIS PROJECT #09-09dnrc This Agreement, including Attachments A and B and C, made and entered into this 18 day of October, 2009, 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 AMEC GeoMatrix, Inc, (1001 S. Higgins, Suite B-1, Missoula, Montana) hereinafter referred to as "CONSULTANT." WHEREAS, the OWNER desires to engage the CONSULTANT to render professional services related to implementation of the recently awarded DNRC Reclamation and Development Grant for Wood Reclamation and Research, including cost benefit analysis, of wood waste material at Silver Park and Millsite for potential use as a growth medium at Silver Park and Fort Missoula Regional Park (FMRP) per Scope of Services, Attachment and WHEREAS, the OWNER desires to enter into an agreement with the CONSULTANT as hereinafter provided, for the professional Scope of Services, Attachment B; NOW THEREFORE, for and in consideration of the mutual promises and agreements set forth herein, the OWNER and CONSULTANT mutually stipulate and agree to the following provisions: I. Employment of CONSULTANT The OWNER hereby agrees to retain the professional services of the CONSULTANT pursuant to the terms and provisions of this Agreement, and the CONSULTANT 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 CONSULTANT Contractor It is understood by the parties hereto that the CONSULTANT is an independent 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 CONSULTANT has obtained and will maintain at its expense for the duration of this Contract, coverage in a Workers' Compensation insurance program with 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 of claims. The CONSULTANT shall provide evidence of such coverage to the City Clerk prior to the City Clerk's validation of this Agreement. ---PAGE BREAK--- 2 III. Contract Pricing CONSULTANT fees for the all services per Attachment B shall be a “not to exceed” fee of $48,395.00 (forty eight thousand three hundred and eighty dollars) per the fixed scope of services, Attachment B. IV. Pre-construction Conference (this agreement does not include construction services.) V. Liaison The OWNER's designated liaison with the CONSULTANT is Donna Gaukler, Director, Parks and Recreation. The CONSULTANT's designated liaison with the OWNER is (Chris Cerquone), AMEC GeoMatrix, Inc. VI. Effective Date and Time of Performance This Agreement takes effect as of the date entered into listed above. The project services, per Attachment B, performed by the CONSULTANT will be completed no later than June 30, 2010, with preliminary reports due December 30, 2009 and April 30, 2010. VII. Scope and Fees of Professional Services A. The CONSULTANT 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 CONSULTING services. B. The CONSULTANT 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. See Attachment Scope of Services. C. The CONSULTANT shall not be responsible or liable for project safety, efficiency and/or adequacy of the 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 or improvements and/or injuries to any employees of the Owner, the Contractors and/or the general public that may be caused or contributed to 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. Project formation and design period services to be provided by the CONSULTANT shall be as follows: See Attachment B Scope of Services, for detailed services within each TASK as listed below. ---PAGE BREAK--- 3 Task A: Wood Waste Characterization Task B: Data Analysis and Report Task C: Pilot scale composting including variety of nitrogen additives Task D: Cost Benefit Analysis included options for use of waste material if growth medium does not meet cost benefit expections, most effiective and efficient processes for creating growth medium, and alternative explored Task E: Compliance to guidelines and requirements of DNRC grant, including reports. (Attachment C) Task F: Final report to City and DNRC in preparation for follow up implementation grant if if research and cost benefit analysis support development of wood waste as growth medium or alternative use. E. Construction period services shall be as follows: (Not included at this time) F. Extra services of the CONSULTANT when authorized by the OWNER shall be as follows: Per writing and by mutual agreement by CONSULTANT and OWNER. VIII. Payment for Services A. Project Formation and Design Services: The OWNER shall pay the CONSULTANT their project cost, plus approved reimbursable costs, per Attachment B. payment for services will be based on actual work performed and actual costs incurred. Payment requests by the CONSULTANT must be accompanied by a billing backup which adequately describes the work performed during that period relative to the Scope of Services (Attachment B) for the project. The cost of services are summarized on Attachment B and by this reference made a part of this Agreement. B. Construction and Final Period Services: (Construction Services are not included in current Scope of Services.) C. Payment for extra services shall be as follows: Payment for extra services must be authorized in writing by the OWNER and shall be paid for per the CONSULTANT’s current direct labor cost and overhead factor in Attachment B. The OWNER shall pay the CONSULTANT for extra services. IX. The OWNER agrees to provide CONSULTANT 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 CONSULTANT and shall inform the CONSULTANT of all decisions within a reasonable time. ---PAGE BREAK--- 4 B. Hold all required special meetings, serve all required public and private notices, receive and act upon all protests and requirements in the development of the Project and pay all costs incident thereto. C. Furnish the CONSULTANT with a copy of any design and construction standards he shall require the CONSULTANT to follow in the preparation of contract or other documents required by OWNER. X. The OWNER and the CONSULTANT further agree to the following conditions: A. Conflict of Interest The CONSULTANT 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 CONSULTANT 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 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. Termination due to loss of funding. This Agreement may terminate, in whole or in part, at the discretion of the Owner in the event that the Owner experiences loss of funds for the project. In this event, the Owner will give the CONSULTANT advance written notice which sets forth the effective date of the termination and explain that the termination is due to a loss or reduction of funding. 2. Termination for Cause a. 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 ---PAGE BREAK--- 5 notice, the aggrieved may, with no further notice, declare this Agreement to be terminated in whole or in part. b. If the CONSULTANT 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 CONSULTANT's failure to comply with the Agreement's terms and conditions. c. If the OWNER is the defaulting party it will pay the CONSULTANT for those services satisfactorily performed to the date of the termination plus the amount of reasonable damages suffered by the CONSULTANT by reason of the OWNER's failure to comply with the Agreement's terms and conditions. d. If the CONSULTANT is the defaulting party, the OWNER may withhold any payments to the Contractor for purposes of setoff until the exact amount is determined. D. Non-Discrimination The CONSULTANT 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 on the basis of race, color, religious creed, political ideas, gender, age, marital status, physical or mental handicap, national origin or ancestry, by persons performing this Agreement. Qualifications mean such abilities as are genuinely related to competent performance of the particular occupational task. E. Ownership and Publication of Materials All reports, information, data and other materials prepared by the CONSULTANT pursuant to this Agreement are the property of the OWNER, which have 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 CONSULTANT for the specific purpose intended will be at the OWNER's sole risk and without liability or legal exposure to the CONSULTANT. No material produced in whole or in part under this Agreement may be copyrighted or patented in the United States or in any other country without the prior written approval of the OWNER and the above departments. F. Reports and Information The CONSULTANT 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 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 ---PAGE BREAK--- 6 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. G. Access to Records It is expressly understood that the CONSULTANT's records relating to this Agreement will be available during normal business hours for inspection by the OWNER. H. 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. I. Eligibility CONSULTANT certifies that the CONSULTANT's firm and the firms' principals are not debarred, suspended, voluntarily excluded, or other wise ineligible for participation in federally assigned contracts under Executive Order 12549, "Debarment and Suspension." (24 CFS 24.505) J. 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 Attachment A. K. Insurance CONSULTANT 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 occurrence that includes liability for accidents occurring during delivery or at the delivery sites that are attributable to the CONSULTANT or its agents' conduct. CONSULTANT shall maintain, during the term of this contract, Professional Errors and Omissions Insurance in the minimum amount of $1,500,000.00. OWNER agrees that Construction Contractor will be required to name CONSULTANT and CONSULTANT’s as Additional Named Insured under Commercial General Liability, Automobile Liability, Excess and/or Umbrella policies required for the construction contract. L. 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 ---PAGE BREAK--- 7 shall supersede all previous communications, representations, or agreements, either oral or written, between the parties. M. Notices Any and all notices to the OWNER shall be sent to: City of Missoula Parks and Recreation Attn: Donna Gaukler 600 Cregg Lane, Missoula, MT 59801 N. Binding Effect This Agreement and all of the covenants hereof shall inure to the benefit of and be binding upon the OWNER and the CONSULTANT respectively and his partners, successors, assigns and legal representatives. Neither the OWNER nor the CONSULTANT 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 CONSULTANT's current service rates as outlined on Attachment B. P. Indemnification The CONSULTANT shall indemnify and hold the OWNER and their officers and employees harmless from and shall process and defend at its own expense all claims, demands, or suits at law or equity arising in whole or in part from the CONSULTANT’s negligence or breach of any of its obligations under this Agreement; provided that nothing herein shall require the CONSULTANT to indemnify the OWNER against and hold harmless the OWNER from claims, demands or suits based solely upon the conduct of the OWNER, their agents, officers and employees and provided further that if the claims or suits are caused by or result from the concurrent negligence of the CONSULTANT’s agents or employees and the OWNER, their agents, officers and employees, this indemnity provision with respect to claims or suits based upon such negligence, the costs to the OWNER of defending such claims and suits, etc., shall be valid and enforceable only to the extent of the CONSULTANT’s negligence or the negligence of the CONSULTANT’s agents or employees. 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 BREAK--- 8 IN WITNESS WHEREOF, the parties have hereunto set their hands and seals on the day and year in this certificate first hereinabove written. CONSULTANT: Name: AMEC GeoMatrix, Inc Chris Cerquone, Consultant (contact) Address: 1001 S. Higgins, Suite B-1 Missoula, MT Phone: [PHONE REDACTED] Date: Chris Cerquone, Senior Scientist OWNER: CITY OF MISSOULA 435 Ryman Street Missoula, Montana 59802 Date: John Engen, Mayor Date: Martha L. Rehbein, City Clerk Approved as to form and content. Date: Jim Nugent, City Attorney ---PAGE BREAK--- 9 ATTACHMENT A NON-DISCRIMINATION All hiring shall be on the basis of merit and qualifications and there shall be no discrimination on the basis of race, color, religious creed, political ideas, sex, age, marital status, physical or mental handicap, national origin or ancestry, by persons performing this contract. Qualifications mean such abilities as are genuinely related to competent performance of the particular occupational task. AFFIRMATIVE ACTION POLICY Contractors, subcontractors, subgrantees, 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 Code Annotated entitled “Human Rights” or forfeit the right to continue such business dealings. The City’ 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, color, religion, national origin, age, marital status, ancestry, receipt of public assistance, political beliefs, physical or mental handicap, ex-offender status, or sex. 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 Missoula, 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, C.E.T.A. program participants, trainees and applicants.