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WGM Professional Services AgreementPROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this 15' day of May, 2017, by and between the CITY OF KALISPELL, MONTANA, a municipal corporation organized and existing under the laws of the State of Montana, 201 First Avenue East, Kalispell, Montana 59901, hereinafter referred to as "City," and WGM Group, 1111 East Broadway, Missoula, Montana 59802, hereinafter referred to as "Consultant." 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 hire Consultant as an independent contractor to perform for City services described in the Scope of Work attached hereto as Exhibit `B" and by this reference made a part hereof. 2. Effective Date: This Agreement is effective upon the date of its execution and will terminate upon the scheduled completion of the Scope of Work. 3. Scope of Work: Consultant will perform the work and provide the services in accordance with the requirements of the Scope of Work attached hereto as Exhibit `B". 4. Payment: City agrees to pay Consultant pursuant to the Schedule of Costs attached hereto as Exhibit "A" and by this reference made a part hereof, for services performed pursuant to the Scope of Work. Any alteration or deviation from the described work that involves extra costs will be performed by Consultant after written request by the City, and will become an extra charge over and above the contract amount. The parties must agree upon any extra charges in writing. 5. Independent Contractor Status: The parties agree that Consultant is an independent contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Consultant 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. Consultant is not authorized to represent the City or otherwise bind the City in any dealings between Consultant and any third parties. Consultant 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. Consultant shall maintain workers' compensation coverage for all members and employees of Consultant's business, except for those members who are exempted by law. Consultant 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' Professional Services Agreement compensation insurance in the State of Montana; or (2) proof of exemption from workers' compensation granted by law for independent contractors. 6. Indemnity and Insurance: For other than professional services rendered, to the fullest extent permitted by law, Consultant agrees to defend, indemnify, and hold the City harmless against claims, demands, suits, damages, losses, and expenses connected therewith that may be asserted or claimed against, recovered from or suffered by the City by reason of any injury or loss, including but not limited to, personal injury, including bodily injury or death, property damage, occasioned by, growing out of, or in any way arising or resulting from any intentional or negligent act on the part of Consultant or Consultant's agents or employees. For the professional services rendered, to the fullest extent permitted by law, Consultant 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 Consultant or Consultant's agents or employees. For this purpose, Consultant shall provide City with proof of Consultant's liability insurance issued by a reliable company or companies for personal injury and property damage 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 • Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate The City shall be included or named as an additional or named insured on the Commercial General and Automobile Liability policies. The insurance must be in a form suitable to City. 7. Professional Service: Consultant agrees that all services and work performed hereunder will be accomplished in a professional manner. 8. Compliance with Laws: Consultant agrees to comply with all federal, state and local laws, ordinances, rules and regulations, including the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA. 9. Contract Provisions for Non -Federal Entity Contracts Under Federal Awards: In addition to other provisions required by the Federal agency or non -Federal entity, all contracts made by the non -Federal entity under the Federal award must contain provisions covering the following, as applicable. y Professional Services Agreement (A) Contracts for more than the simplified acquisition threshold currently set at $150,000, which is the inflation adjusted amount determined by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) as authorized by 41 U.S.C. 1908, must address administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms, and provide for such sanctions and penalties as appropriate. (B) All contracts in excess of $10,000 must address termination for cause and for convenience by the non -Federal entity including the manner by which it will be effected and the basis for settlement. (C) Equal Employment Opportunity. Except as otherwise provided under 41 CFR Part 60, all contracts that meet the definition of "federally assisted construction contract" in 41 CFR Part 60-1.3 must include the equal opportunity clause provided under 41 CFR 60-1.4(b), in accordance with Executive Order l 1246, "Equal Employment Opportunity" (30 FR 12319, 12935, 3 CFR Part, 1964-1965 Comp., p. 339), as amended by Executive Order 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," and implementing regulations at 41 CFR part 60, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor." (D)Davis-Bacon Act, as amended (40 U.S.C. 3141-3148). When required by Federal program legislation, all prime construction contracts in excess of $2,000 awarded by non -Federal entities must include a provision for compliance with the Davis -Bacon Act (40 U.S.C. 3141-3144, and 3146-3148) as supplemented by Department of Labor regulations (29 CFR Part 5, "Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction"). In accordance with the statute, contractors must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. The non -Federal entity must place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The non -Federal entity must report all suspected or reported violations to the Federal awarding agency. The contracts must also include a provision for compliance with the Copeland "Anti -Kickback" Act (40 U.S.C. 3145), as supplemented by Department of Labor regulations (29 CFR Part 3, "Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States"). The Act provides that each contractor or subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public Professi'onal Services Agree ment work, to give up any part of the compensation to which he or she is otherwise entitled. The non -Federal entity must report all suspected or reported violations to the Federal awarding agency. (E) Contract Work Hours and Safety Standards Act (40 U.S.C. 3701-3708). Where applicable, all contracts awarded by the non -Federal entity in excess of $100,000 that involve the employment of mechanics or laborers must include a provision for compliance with 40 U.S.C. 3702 and 3704, as supplemented by Department of Labor regulations (29 CFR Part 5). Under 40 U.S.C. 3702 of the Act, each contractor must be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. 3704 are applicable to construction work and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence. (F) Rights to Inventions Made Under a Contract or Agreement. If the Federal award meets the definition of "funding agreement" under 37 CFR §401.2 (a) and the recipient or subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that "funding agreement," the recipient or subrecipient must comply with the requirements of 37 CFR Part 401, "Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements," and any implementing regulations issued by the awarding agency. (G)Clean Air Act (42 U.S.C. 7401-7671q.) and the Federal Water Pollution Control Act (33 U.S.C. 1251-1387), as amended —Contracts and subgrants of amounts in excess of $150,000 must contain a provision that requires the non - Federal award to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671 q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251-1387). Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA). (H) Debarment and Suspension (Executive Orders 12549 and 12689)—A contract award (see 2 CFR 180.220) must not be made to parties listed on the Professional Services Agreement governmentwide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 CFR part 1986 Comp., p. 189) and 12689 (3 CFR part 1989 Comp., p. 235), "Debarment and Suspension." SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549. (I) Byrd Anti -Lobbying Amendment (31 U.S.C. 1352)—Contractors that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier must also disclose any lobbying with non -Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the non - Federal award. (J) See §200.322 Procurement of recovered materials. 10. Comprehensive Environmental Response, Compensation and Liability Act: Work done under the Brownfields grant must comply with the requirements of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) 104(k), the Uniform Relocation Act; National Historic Preservation Act; Endangered Species Act; and Permits required by Section 404 of the Clean Water Act; Executive Order 11246, Equal Employment Opportunity, and implementing regulations at 41 CFR 60-4; Contract Work Hours and Safety Standards Act, as amended (40 USC 327-333) the Anti Kickback Act (40 USC 276c) and Section 504 of the Rehabilitation Act of 1973 as implemented by Executive Orders 11914 and 11250. 11. Participation by Disadvantaged Business Enterprises in United States Environmental Protection Agency Prozrams: The contractor shall carry out applicable requirements of 40 CFR part 33 in the award and administration of contracts awarded under EPA financial assistance agreements. Failure by the contractor to carry out these requirements is a material breach of this contract which may result in the termination of this contract or other legally available remedies. 12. Nondiscrimination: Consultant agrees that all hiring by Consultant of persons performing this Agreement will be on the basis of merit and qualification and will not discriminate on the basis of race, color, religion, creed, political ideas, sex, age, marital status, physical or mental disability, or national origin. Professional Services A reement 13. Default and Termination: If either party fails to comply with any condition of this Agreement at the time or in the manner provided for, the other party, at its option, may terminate this Agreement and be released from all obligations if the default is not cured within ten (10) days after written notice is provided to the defaulting party. Said notice shall set forth the items to be cured. Additionally, the non -defaulting party may bring suit for damages, specific performance, and any other remedy provided by law. These remedies are cumulative and not exclusive. Use of one remedy does not preclude use of the others. Notices shall be provided in writing and hand -delivered or mailed to the parties at the addresses set forth in the first paragraph of this Agreement. 14. Modification and Assignability: This document contains the entire agreement between the parties and no statements, promises or inducements made by either party or agents of either party, which are not contained in this written Agreement, may be considered valid or binding. This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Consultant may not subcontract or assign Consultant'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. 15. 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 City. The City has the exclusive and unrestricted authority to release, publish or otherwise use, in whole or part, information relating thereto. Any re -use without written verification or adaptation by the Consultant for the specific purpose intended will be at the City'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 City. 16. Liaison: City's designated liaison with Consultant is Katharine Thompson, Assistant Director of Community and Economic Development and Consultant's designated liaison with City is Melissa Matassa-Stone, Project Manager and Stephanie Reynolds, Environmental Engineer. 17. Applicability: This Agreement and any extensions hereof shall be governed and construed in accordance with the laws of the State of Montana. Professional Services Agreement U IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first above written. CITY OF KALISPELL, MONTANA By Doug Russell, City Manager WGM GROUP &WAjd By X�7 Miranda Ming, Treasurer & Chief Operating Officer , w,,. n,A�; ,.1-11 ,�"— —��"�,� ... . . .... . . . ....Professional Services Agreement � ����� Exhibit A WGM Group Schedule of Costs Qualified Environmental Professional Kalispell Brownfields Assessment Grant Projects P. ...ionalServices Agreement� RESPEC Schedule of Costs WGM Group Subcontractor Kalispell Brownfields Assessment Grant Projects RESPEC SCOPE OF SERVICES City of Kalispell Brownfieid revitalization Project WGM Group, Inc. ECOPE OF SERVICES liroject. The seMces may include, but not be limited to: • Project management and coordination • Environmental sampling • Preparation of reports • Negotiate access agreements • Preparation of site specific project plans • Support at public meetings PiCio;(#11111 RESPEC Staff 2017 Rates Vandarn, Charlie K. Sir, ErMrorwnental SC lenwt MerrItt, Brent E. EnWronrnentM Scientist POW, Mxhefle S. Sr, 0S Analyst Naughton, Joe Enwrionmental SdenUsl M Sc�-woeder, KeVni BiologNt/Weflarwd Scenbst Rosenbaum hidith C, CAD Techr*.Jan Rotar, Wichael A. (MOce) Sr. Water Resources Engineer "Water Johnson, Matthew W. Resources Engineer 11 Benn, Troy Water Resource Erq�mrer Mgman, Gary Sr. Water Resources 'WentNt Weber, Erich E. Water Resources Scientist M TraAer, Mark. A. ... . ...... ST. BlologNt/Wedand Sidenfist ........... Dunn, Jeffrey W. Sr. Watershed ScienUst Wflbanks, Juh R IT Sr. Program Assistant I Coffins, Zachary GM Anaiyst Hil 9 Professional Services Agreement office Rate Kssouia $175.00 KS'Aula $75.00 Msouial Sins* Missoula, $110XV miftso0a $105'CK) m6souia $85.00 Ooze nr a n . . ...... .......... . Bozeman $110.M Bozeman $100.00 HOena $130.M) HOena $95.00 Bozeman $120.00 Bozerrmn $65.0n Bozeman $95,00 Exhibit B Scope of Work for the CHS Country Store Located at 150 First Avenue West North, Kalispell, Montana 59901 Qualified Environmental Professional Kalispell Brownfields Assessment Grant Projects WGM Group agrees to will work closely with the City of Kalispell's Community Development Department to establish communications, expectations, and protocols appropriate to the work being performed. Through a random drawing held on February 21, 2017, with all three Qualified Environmental Professionals (QEPs) selected by the City of Kalispell, WGM Group was assigned the CHS Country Store, located at 150 First Avenue West North, Kalispell, Montana 59901. Phase II Environmental Site Assessments Phase II ESA will be conducted in accordance with Montana Department of Environmental Quality (MDEQ) requirements and written in accordance with ASTM E1903-11 Standard Practice for Environmental Site Assessments, Phase II Environmental Site Assessment Process. As part of the planning phase to implement the Phase II ESAs, Consultant will consider the historical characteristics of each property as appropriate and will consider local (City -County) health department concerns and issues. Consultant will prepare a HASP and SAP for these sites, as required. Any investigative derived wastes will be profiled and disposed of in accordance with applicable local, state, and federal regulations. The Phase II ESA report will outline the nature of the investigation: analytical results and evaluation of the data quality; and will provide recommendations for additional investigation and/or remediation. These reports will also be prepared in a standard and consistent format and provided to the City in both hard copy and electronic format. Asbestos and lead -based paint surveys may be conducted as part of Phase II ESA scopes of work. Consultant must have an Asbestos Hazard Emergency Response Act (AHERA)-certified asbestos inspector and a Certified Industrial Hygienist (CIH) experienced in asbestos issues on staff, or be willing to subcontract this work to a party holding such certifications. Consultant will evaluate each scope of work individually and will determine if performing these services in-house is more cost-effective to the City than procuring a subcontractor. The intent of each Phase II ESA will be to develop a scope of work that meets the needs of the property's redevelopment future and to implement a scope of work in a manner that most efficiently expends the City's financial resources and conforms to all applicable city, state and federal regulations and requirements. Based upon the findings of the Phase II Assessment, the Professional Services Agreement City of Kalispell, in concert with the appropriate Federal and State agencies, will determine if site -specific cleanup activities are necessary. If cleanup is determined to be necessary, WGM Group will develop a site -specific cleanup plan consistent with the envisioned site re -use. This site -specific cleanup plan should include all of those items required within a United States Environmental Protection Agency analysis of brownfields cleanup alternatives (ABCA), which will include information about the site and contamination issues (i.e. exposure pathways, identification of contaminant sources, etc.); cleanup standards; applicable laws; alternatives considered; and the proposed cleanup. Additionally, the proposed site -specific cleanup plan should meet all requirements necessary to fulfill the State's Recommended Alternatives Analysis requirements. A cost estimate should be included for all cleanup alternatives proposed. All proposed clean-up actions will be developed to ensure that the cleanup is protective of human health and the environment and will ensure compliance with all applicable Federal and State laws. p Professional Services Agreement