HomeMy Public PortalAbout2011.07.15 Horrocks Proffessional Engineering Services Term AgreementPROFESSIONAL ENGINEERING SERVICES TERM AGREEMENT
This Agreement, made this 5 day of July, 2011, by and between the City of McCall,
Valley County, Idaho, hereinafter referred to as the CITY, and Horrocks Engineers, Inc., a
Utah corporation, hereinafter referred to as the CONSULTANT.
WHEREAS, the CITY, desires to obtain professional services for miscellaneous City
projects, herein referred to as the PROJECT; the CONSULTANT agrees to perform the
various professional services delineated by Task Order for said PROJECT. Each of the
miscellaneous CITY PROJECTS will be negotiated by individual Task Order.
The CONSULTANT acknowledges that they have reviewed the scope of work to be
performed under this Agreement and agrees to perform the work in accordance with the
terms of payment in this Agreement. The CONSULTANT agrees to complete the services
delineated and within the specified days, as specified in each Task Order.
It is understood and agreed that the CONSULTANT is skilled in the professions required to
perform the work under this Agreement and that the CITY relies upon the skill of the
CONSULTANT to perform its work in a professional manner, and the CONSULTANT thus
agrees to so perform its work and the acceptance by the CITY does not release the
CONSULTANT from professional responsibility.
It is mutually agreed by the parties that:
SECTION 1
DATA AND SERVICES TO BE PROVIDED BY CITY
1.1 The following data and/or services are to be provided by the CITY without cost to the
CONSULTANT.
A. Provide ongoing review of the CONSULTANT work and timely consideration of
policy issues at a time acceptable to both the CITY and CONSULTANT.
B. Provide access to relevant record drawings, master plans, and other relevant design
information of record.
C. Provide word processing discs of standard contract documents and standard
specification special provisions in Microsoft Word format.
D. Unless otherwise specified in a specific Task Order, provide construction contract
administration and daily construction inspection.
SECTION 2
ADDITIONAL PROVISIONS
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2.1 Billing
The CONSULTANT shall bill for the various services as completed no more frequently than
once per month. The amount of the bill shall be in accordance with the actual services
completed, not to exceed a total amount as outlined in the specific Task Order and the CITY
shall timely reimburse the CONSULTANT for said completed services.
2.2 Indemnification
CONSULTANT shall indemnify CITY, its agents, officials, and employees, against all suits
or claims that may be based on any injury to persons or property and losses and expenses that
are the result of an error, omission, or negligent act of CONSULTANT or any person
employed by CONSULTANT.
2.3 Insurance Requirements
The CONSULTANT, certifying that they are an independent contractor shall acquire and
maintain throughout the term of this contract the following insurance coverage:
a) General Liability Certificate of Insurance at $1,000,000
b) Professional Liability Insurance (Errors and Omission) with a minimum limit
of $1,000,000
c) Workers Compensation and Employers Liability Insurance of $500,000
The limits of said insurance shall not be deemed a limitation of the covenants to indemnify
and save and hold harmless the CITY; and if the CITY becomes liable for an amount in
excess of the insurance limits, herein provided, CONSULTANT covenants and agrees to
indemnify and save and hold harmless CITY from and for all such losses, claims, actions, or
judgments for damages or liability to persons or property. The General Liability Certificate
of Insurance shall name the CITY as an additional insured and shall be provided to the
City of McCall Public Works Department, prior to proceeding with the PROJECT.
2.4 Independent Contractor
In all matters pertaining to this Agreement, CONSULTANT shall be acting as an
independent contractor, and neither CONSULTANT, any officer, employee nor agent of
CONSULTANT will be deemed an employee of CITY. The selection and designation of the
personnel of the CITY in the performance of this Agreement shall be made by the CITY.
2.5 CITY -Provided Services and Information
The CITY shall furnish the CONSULTANT available studies, reports, and other data
pertinent to CONSULTANT'S services; obtain or authorize CONSULTANT to obtain or
provide additional reports and data as required; furnish to CONSULTANT services of others
as required for the performance of CONSULTANT'S services hereunder, and
CONSULTANT shall be entitled to use and rely upon all information and services provided
by CITY or others in performing CONSULTANT's services under this Agreement.
2.6 CITY -Provided Access
The CITY shall arrange for access to and make all provisions for CONSULTANT to enter
upon public and private property as required for CONSULTANT to perform services under
this Agreement.
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PROFESSIONAL ENGINEERING SERVICES TERM AGREEMENT
2.7 Notices
Any and all notices required to be given by either of the parties hereto, unless otherwise
stated in this Agreement, shall be in writing and be deemed communicated when mailed in
the United States mail, certified, return receipt requested, addressed as follows:
CITY
City of McCall
Public Works Department
216 E. Park Street
McCall, ID 83638
CONSULTANT
Horrocks Engineers, Inc.
5700 E. Franklin Road, Suite 160
Nampa, Idaho 83687
Either party may change their address for the purpose of this paragraph by giving written
notice of such change to the other in the manner herein provided.
2.8 Time is of the Essence
The parties hereto acknowledge and agree that time is strictly of the essence with respect to
each and every term, condition and provision hereof, and that the failure to timely perform
any of the obligations hereunder shall constitute a breach of and a default under this
Agreement by the party so failing to perform.
2.9 Assignment
It is expressly agreed and understood by the parties hereto, that CONSULTANT shall not
have the right to assign, transfer, hypothecate or sell any of its rights under this Agreement
except upon the prior express written consent of CITY.
2.10 Reports and Information
At such times and in such forms as the CITY may require, there shall be furnished to the
CITY such statements, records, reports, data and information as the CITY may request
pertaining to matters covered by this Agreement.
2.11 Publication, Reproduction and Use of Material
No material produced in whole or in part under this Agreement shall be subject to copyright
in the United States or in any other country. The CITY shall have unrestricted authority to
publish, disclose and otherwise use, in whole or in part, any reports, data or other materials
prepared under this Agreement. The CITY agrees to limit its use of the materials to the
PROJECT.
2.12 Compliance with Laws
In performing the scope of services required hereunder, CONSULTANT shall comply with
all applicable laws, ordinances, and codes of Federal, State, and Local governments.
2.13 Changes
The CITY may, from time to time, request changes in the scope of services to be performed
hereunder. Such changes, including any increase or decrease in the amount of
CONSULTANT compensation, and any changes in the time of completion, which are
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PROFESSIONAL ENGINEERING SERVICES TERM AGREEMENT
mutually agreed upon by and between the CITY and CONSULTANT, shall be incorporated
in written Task Order Amendments to this Agreement.
2.14 Termination for Cause
If, through any cause, CONSULTANT shall fail to fulfill in a timely and proper manner its
obligations under this Agreement, or if CONSULTANT shall violate any of the covenants,
agreements, or stipulations of this Agreement, the CITY shall thereupon have the right to
terminate this Agreement by giving written notice to CONSULTANT of such termination and
specifying the effective date thereof at least fifteen (15) days before the effective date of such
termination. In such event, all finished or unfinished documents, data, maps, studies, surveys,
drawings, models, photographs and reports prepared by CONSULTANT under this Agreement
shall, at the option of the CITY, become its property, and CONSULTANT shall be entitled to
receive just and equitable compensation for any work satisfactorily complete hereunder.
Notwithstanding the above, CONSULTANT shall not be relieved of liability to the CITY for
damages sustained by the CITY by virtue of any breach of this Agreement by CONSULTANT,
and the CITY may withhold any payments to CONSULTANT for the purposes of setoff until
such time as the exact amount of damages due the CITY from CONSULTANT is determined.
This provision shall survive the termination of this Agreement and shall not relieve
CONSULTANT of its liability to the CITY for damages, provided that the amount of such
damages shall not exceed the total compensation provided for in Section 3 of this
Agreement.
2.15 Termination for Convenience of CITY
The CITY may terminate this Agreement at any time by giving at least ninety (90) days
notice in writing to the CONSULTANT. If the Agreement is terminated by the CITY as
provided herein, CONSULTANT will be paid an amount which bears the same ratio to the
total compensation as the services actually performed bear to the total services of
CONSULTANT covered by this Agreement, less payments of compensation previously
made. If this Agreement is terminated due to the fault of CONSULTANT, Section 2.12
hereof relative to termination shall apply.
2.16 Losing Party Responsible for Reasonable Costs
In the event of any action brought by either party against the other to enforce any of the
obligations hereunder or arising out of any dispute concerning the terms and conditions
hereby created, the losing party shall pay the prevailing party such reasonable amounts of
fees, costs and expenses, including attorneys' fees, as may be set by the Court.
2.17 Binding of Successors
The CITY and the CONSULTANT each binds himself, his partners, successors, assigns and
legal representatives to the other party to this Agreement and to the partners, successors,
assigns and legal representatives of such other party with respect to all covenants of this
Agreement. Neither the CITY nor the CONSULTANT shall assign, sublet or transfer his
interest in this Agreement.
2.18 Authorization to Proceed
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PROFESSIONAL ENGINEERING SERVICES TERM AGREEMENT
Execution of this Agreement by the CITY and CONSULTANT, and execution of specific
PROJECT Task Order, shall constitute authorization for the CONSULTANT to proceed with
the work.
2.19 Renewal
This Agreement may be renewed, by written agreement, for an additional term as may be
agreed, upon mutual agreement by both parties. The terms of the renewal may include a
change in key personnel listed.
2.20 Term
The term for this Agreement shall be approximately one and one-half (1-1/2) years,
commencing upon execution of the contract and continuing through December 31, 2012,
unless sooner terminated as provided herein.
Non -Appropriation: The continuation of the terms, conditions, and provisions of this
contract beyond the calendar year is subject to approval of and ratification by the City
Council.
2.21 Key Personnel
Unless otherwise agreed to by the CITY, the CONSULTANT agrees to utilize the key
personnel for PROJECTS involving this contract as indicated in the proposal. Any change in
personnel shall be approved by the City of McCall Public Works Director or assigned
representative.
2.22 Extent of Agreement
This Agreement represents the entire and integrated Agreement between the CITY and the
CONSULTANT and supersedes all prior negotiations, representations or agreements, either
written or oral.
This Agreement may be amended only by written instrument signed by both CITY and
CONSULTANT. Unless otherwise specified, this Agreement shall be governed by the law
of the principal place of business of the CITY.
2.23 Severability
If any provision of this Agreement is held invalid or unenforceable, the remaining provisions
shall be valid and binding upon the parties. One or more waivers by either party of any
provisions, term, or condition shall not be construed by the other party as a waiver of any
subsequent breach of the same provision, term, or condition.
2.24 Dispute Resolution
All disputes between CONSULTANT and CITY, with the exception of non-payment issues,
shall first be subject to non -binding mediation. Either party may demand mediation by
serving a written notice stating the essential nature of the dispute and demanding that the
mediation proceed within sixty (60) days of service of notice. The mediation shall be
administered by a mediator approved for mediation of civil disputes in Idaho, or by such
other person or organization as the parties may agree upon. No action or suit may be
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PROFESSIONAL ENGINEERING SERVICES TERM AGREEMENT
commenced unless (1 the mediation does not occur within ninety (90) days after service of
notice, (2) the mediation occurs within ninety (90) days after service of notice but does not
resolve the dispute, or (3) a statute of limitation would elapse if suit was not filed prior to
ninety (90) days after service of notice.
2.25 Entire Agreement
This Miscellaneous Professional Services Term Agreement shall remain in effect throughout
the duration of the Project. This Agreement, including attachments incorporated herein by
reference, represents the entire Agreement and understanding between the parties, and any
negotiations, proposals, or oral agreements are intended to be integrated herein and to be
superseded by this written Agreement. Any supplement or amendment to this Agreement, to
be effective, shall be in writing and signed by the CITY and CONSULTANT.
2.26 Governing Law
This Agreement is to be governed by and construed in accordance with the laws of the State
of Idaho.
2.27 Non -Exclusive
Nothing in this Agreement shall be construed to limit the ability of the CITY to contract with
other engineering firms for specific projects, or services, including the types of services
rendered by CONSULTANT.
SECTION 3
PAYMENT TO CONSULTANT
NOTE: This section will be negotiated with the CONSULTANT. The hourly rates (which
are based on actual current employee pay rates multiplied by 2.70) and reimbursables agreed
to by the CONSULTANT and the CITY are included herewith. Rates charged for services
are based on the CONSULTANT'S current employee pay list which is modified annually on
March 1. All services rendered after the end of February of each year shall be billed to the
CITY at the new rates. Rates may also be modified at any time during the year due to pay
rate adjustments for employee promotions, professional licensure, or other factors. A "not to
exceed" reimbursable amount shall also be established under each Task Order which will not
be changed except by mutual written agreement of the parties.
3.1 Hourly Rates and Reimbursable Costs
The billable hourly rate includes direct labor, general and administrative overhead, profit
margin, ordinary and CAD computer time, ordinary software costs, office supplies, check
plots, routine reproduction costs, local and long distance communication charges, facsimile
charges and travel costs within Valley County.
Billable hourly rates DO NOT include project related costs such as: extensive reproductions
costs, i.e., reproduction of final bidding documents (plans and specifications), studies, etc., travel
outside of Valley County, per diem, specialized equipment or software unless otherwise agreed
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PROFESSIONAL ENGINEERING SERVICES TERM AGREEMENT
to as a part of a specific project Task Order negotiation. These negotiated project related costs
are to be invoiced to the City at the consultant's cost and sub -consultants costs, without
additional markup. Rates for sub -consultants will be based on rate tables included in attachment
to each Task Order.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of
the date so indicated.
City of McCall
APPROVED BY:
20
Donald C. Bailey, Mayor D. gna ure
Consultant Name & Address:
ATTEST:
BessieJo Wa '- r, City Clergy Date
APPROVED BY:
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Peter Borner, P.E. Dat
Public Works Director
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