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HomeMy Public PortalAbout2024.01.02_Master Agreement_6c_Horrocks 1 MASTER AGREEMENT FOR PROFESSIONAL SERVICES (Unlimited) THIS AGREEMENT FOR PROFESSIONAL SERVICES shall become effective January 1, 2024, between the City of McCall, Idaho, a municipal corporation organized under the laws of the State of Idaho, hereinafter referred to as "CITY", whose address is 216 East Park Street, McCall, ID 83638, and Horrocks LLC hereinafter referred to as “ENGINEER”, whose business address is 2775 W. Navigator Dr., Suite 210, Meridian, ID 83642. INTRODUCTION Whereas, the City has a need for 6c – Construction Management to be defined by individual Task Orders which will set forth Specific Services, Time of Performance and Payment; and WHEREAS, the ENGINEER is specially trained, experienced and competent to perform and has agreed to provide such services. NOW, THEREFORE, in consideration of the mutual promises, covenants, terms and conditions hereinafter contained, the parties agree as follows: TERMS AND CONDITIONS 1. Scope of Services: 1.1. Upon execution of this Master Agreement AND any associated Task Order(s) and receipt of the City’s written notice to proceed, Engineer shall comply in all respects and perform and furnish to the City, all services listed in any corresponding task order(s) incorporated herein by this reference, together with any amendments that may be agreed to in writing by the parties. Any Task Order(s) executed by both parties during the term of this Agreement shall be incorporated into and subject to the terms of this agreement by this reference. 1.2. All documents or materials acquired or produced by the ENGINEER in conjunction with the project shall become the property of, and be delivered to, the CITY without any restrictions or limitations with respect to their further use thereof. All documents or materials prepared for the CITY shall not be distributed by the ENGINEER, sub-engineer’s, their agents, representatives, or employees to any third party without the express written consent of the CITY. DocuSign Envelope ID: 409CC68C-F5E9-45A0-AFEF-127C30CE68F3 2 1.3. The ENGINEER shall provide services and work under this Agreement consistent with the requirements and standards established by applicable federal, state and city laws, ordinances, regulations and resolutions. The ENGINEER represents and warrants that it will perform its work in accordance with generally accepted industry standards and practices applied at the same time and locality for the profession or professions that are used in performance of this Agreement and resulting task order(s) in effect at the time of performance of this Agreement and associated task order(s). 1.4. Services and work provided by the ENGINEER at the City’s request under this Agreement will be performed in a timely manner in accordance with a Schedule of Work, which the parties hereto shall agree to. The Schedule of Work may be revised from time to time upon mutual written consent of the parties. 2. Consideration 2.1. The ENGINEER shall perform the services for a Not-To-Exceed total fee as outlined in the corresponding Task Order. 2.2. The ENGINEER shall provide the City with a monthly statement, as services warrant, of fees earned and costs incurred for services provided during the billing period, which the City will pay within 30 days of receipt of a correct invoice and approval by the City. The City will not withhold any Federal or State income taxes or Social Security Tax from any payment made by City to ENGINEER under the terms and conditions of this Agreement. Payment of all taxes and other assessments on such sums is the sole responsibility of ENGINEER. No employer-employee relationship has been formed between ENGINEER and the CITY. 2.3. Except as expressly provided in this Agreement and corresponding Task Orders, ENGINEER shall not be entitled to receive from the City any additional consideration, compensation, salary, wages, or other type of remuneration for services rendered under this Agreement, including, but not limited to, meals, lodging, transportation, drawings, renderings or mockups. Specifically, ENGINEER shall not be entitled, by virtue of this Agreement to consideration in the form of overtime, health insurance benefits, retirement benefits, paid holidays or other paid leaves of absence of any type or kind whatsoever. 2.4. Any out-of-town travel required by individual Task Orders will be reimbursed at cost, per the City’s existing travel policy, however, the same must be approved by the City in writing, in advance of accrual. Any requested travel related/meal reimbursement must be accompanied by itemized receipts. 3. Time of Performance: This agreement shall become effective upon execution by both parties and shall continue for an initial term extending through the next occurring December 31st. After the initial term, this agreement shall continue for additional one-year renewal terms as provided herein commencing on January 1st and terminating on the next occurring December 31st for a series of four additional one-year terms not to exceed the five (5) year maximum limit of the original Consultant Roster. This agreement may be terminated prior to the conclusion of any given term by as identified in Section 16. ENGINEER shall be entitled to annual inflationary fee increases for each renewal year consistent with its annual rate schedule adjustment practices. ENGINEER must provide CITY with at least thirty (30) days’ notice prior to any such inflationary fee increases. DocuSign Envelope ID: 409CC68C-F5E9-45A0-AFEF-127C30CE68F3 3 4. Independent Contractor: 4.1. In all matters pertaining to this agreement, ENGINEER shall be acting as an independent contractor, and neither ENGINEER nor any officer, employee or agent of ENGINEER will be deemed an employee of CITY. Except as expressly directed in writing by the City Engineer, ENGINEER has no authority or responsibility to exercise any rights or power vested in the City. The selection and designation of the personnel of the CITY in the performance of this agreement shall be made by the CITY. 4.2. ENGINEER shall determine the method, details and means of performing the work and services to be provided by ENGINEER under this Agreement. ENGINEER shall be responsible to City only for the requirements and results specified in this Agreement and, except as expressly provided in this Agreement, shall not be subjected to City’s control with respect to the physical action or activities of ENGINEER in fulfillment of this Agreement. 5. Indemnification and Insurance: ENGINEER shall indemnify and save and hold harmless CITY from losses, claims, actions, judgments for damages, or injury to persons or property and losses and expenses and other costs including reasonable litigation costs and reasonable attorney’s fees, to the extent caused or arising from, wrongful conduct or negligent acts or errors or omissions under this Agreement by the ENGINEER, its servants, agents, officers, employees, guests, and business invitees, and not caused by or arising out of the tortious conduct or negligence of CITY or its employees. ENGINEER shall maintain, and specifically agrees that it will maintain, throughout the term of this Agreement, liability insurance in the minimum amounts as follow: General Liability One Million Dollars ($1,000,000) per incident or occurrence and general aggerate, Professional Liability / Professional errors and omissions One Million Dollars ($1,000,000) per claim and aggregate, Automobile Liability Insurance One Million Dollars ($1,000,000) per accident or occurrence and Workers’ Compensation Insurance, in the statutory limits as required by law. The CITY shall be named as an additional insured on both General Liability and Automotive policies. The limits of insurance shall not be deemed a limitation of the covenants to indemnify and save and hold harmless CITY; and if CITY becomes liable for an amount in excess of the insurance limits, herein provided, ENGINEER covenants and agrees to indemnify and save and hold harmless CITY from and for all such losses, claims, actions, or judgments for damages or injury to persons or property and other costs, including litigation costs and attorneys’ fees, to the extent caused by or arising from the wrongful conduct, negligent performance, and/or negligent errors or omission under this Agreement by the ENGINEER or Engineer’s officers, employs, agents, representatives or subcontractors and resulting in or attributable to personal injury, death, or damage or destruction to tangible or intangible property. ENGINEER shall provide CITY with a Certificate of Insurance, or other proof of insurance evidencing ENGINEER'S compliance with the requirements of this paragraph and file such proof of insurance with the CITY at least ten (10) days prior to the date ENGINEER begins performance of its obligations under this Agreement. In the event ENGINEER’S insurance policy limits are changed, ENGINEER shall immediately submit proof of compliance with the limits as provided herein to the CITY. Evidence of all insurance shall be submitted at the address identified for the City in Section 6, herein. Notwithstanding the foregoing and relative to claims of professional liability, ENGINEER has no obligation to defend CITY or pay CITY’S defense costs prior to a final determination of liability or to pay any amount that exceeds the proportionate share of ENGINEER’S finally determined percentage of liability as determined by a court of competent jurisdiction provided, however, DocuSign Envelope ID: 409CC68C-F5E9-45A0-AFEF-127C30CE68F3 4 ENGINEER shall be required to reimburse the City for reasonable legal fees and costs incurred as a result of and caused by ENGINEER’S negligence as determined by a court of competent jurisdiction. 6. 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, or emailed (if applicable) addressed as follows: CITY City of McCall Public Works Department 216 East Park Street McCall, Idaho 83638 ENGINEER: Horrocks LLC 2775 W. Navigator Dr., Suite 210 Meridian, ID 83642 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. 7. Attorney’s Fees: Should any litigation be commenced between the parties hereto concerning this Agreement, the prevailing party shall be entitled, in addition to any other relief as may be granted, to court costs and reasonable attorneys' fees as determined by a Court of competent jurisdiction. This provision shall be deemed to be a separate contract between the parties and shall survive any default, termination or forfeiture of this Agreement. 8. Assignment: It is expressly agreed and understood by the parties hereto, that ENGINEER 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. DocuSign Envelope ID: 409CC68C-F5E9-45A0-AFEF-127C30CE68F3 5 9. Discrimination Prohibited: In performing the Services required herein, ENGINEER shall not unlawfully discriminate in violation of any federal, state or local law, rule or regulation against any person on the basis of race, color, religion, sex, sexual orientation, national origin or ancestry, age or disability. 10. Reports and Information: 10.1. 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. 10.2. ENGINEER shall maintain all writings, documents and records prepared or compiled in connection with the performance of this Agreement for a minimum of four (4) years from the termination or completion of this Agreement. This includes any handwriting, typewriting, printing, photo static, photographic and every other means of recording upon any tangible thing, any form of communication or representation including letters, words, pictures, sounds or symbols or any combination thereof. 11. Audits and Inspections: At any time during normal business hours and as often as the CITY may deem necessary, there shall be made available to the CITY for examination all of ENGINEER’S records with respect to all matters covered by this Agreement. ENGINEER shall permit the CITY to audit, examine, and make excerpts or transcripts from such records, and to make audits of all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and other data relating to all matters covered by this Agreement. 12. 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. 13. Compliance with Laws: In performing the scope of services required hereunder, ENGINEER shall comply with all applicable laws, ordinances, and codes of Federal, State, and local governments. 14. Public Information: Pursuant to Idaho Code Section 74-101, et. seq., information or documents received from the ENGINEER may be open to public inspection and copying unless exempt from disclosure. 15. 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 ENGINEER’S compensation, which are mutually agreed upon by and between the CITY and ENGINEER, shall be incorporated in written amendments to this Agreement. This Agreement may be modified by the consent of both parties expressed in writing. DocuSign Envelope ID: 409CC68C-F5E9-45A0-AFEF-127C30CE68F3 6 16. Termination: The termination clauses listed below (Section 16.1 through 16.3) shall apply to this agreement and any resulting task order written in conjunction with this agreement. 16.1. If, through any cause, ENGINEER, its officers, employees, or agents fails to fulfill in a timely and proper manner its obligations under this Agreement, violates any of the covenants, agreements, or stipulations of this Agreement, falsifies any record or document required to be prepared under this agreement, engages in fraud, dishonesty, or any other act of misconduct in the performance of this contract, or if the City Council determines that termination of this Agreement is in the best interest of CITY, the CITY shall thereupon have the right to terminate this Agreement by giving written notice to ENGINEER of such termination and specifying the effective date thereof at least fifteen (15) days before the effective date of such termination. ENGINEER may terminate this agreement at any time by giving at least sixty (60) days’ notice to CITY. 16.2. In the event of any termination of this Agreement, all finished or unfinished documents, data, and reports prepared by ENGINEER under this Agreement shall, at the option of the CITY, become its property, and ENGINEER shall be entitled to receive just and equitable compensation for any work satisfactorily complete hereunder. 16.3. Notwithstanding the above, ENGINEER shall not be relieved of liability to the CITY for damages sustained by the CITY by virtue of any breach of this Agreement by ENGINEER, and the CITY may withhold any payments to ENGINEER for the purposes of off-set until such time as the exact amount of damages due the CITY from ENGINEER is determined. This provision shall survive the termination of this agreement and shall not relieve ENGINEER of its liability to the CITY for damages. 17. Construction and Severability: If any part of this Agreement is held to be invalid or unenforceable, such holding will not affect the validity or enforceability of any other part of this Agreement so long as the remainder of the Agreement is reasonably capable of completion. 18. Advice of Attorney: The Parties agree that they have been advised, in writing, to consult with legal counsel before signing this Agreement, and acknowledge that they have exercised this right to their satisfaction, and as a result, have nevertheless elected to sign this Agreement and be bound by its terms. 19. Entire Agreement: This Agreement contains the entire agreement of the parties and supersedes any and all other agreements or understandings, oral of written, whether previous to the execution hereof or contemporaneous herewith. 20. Resulting Task Orders and Survival: All Task Orders resulting from this Master Agreement and executed by both parties during the term of this Master Agreement will be bound to the terms and conditions of the Master Agreement until all tasks are completed and accepted by the City whether or not the Master Agreement is terminated or unless tasks are canceled via a change order. DocuSign Envelope ID: 409CC68C-F5E9-45A0-AFEF-127C30CE68F3 7 21. Applicable Law: This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Idaho, and the ordinances of the City of McCall. Any and all litigation arising between the parties must be resolved in the district court for and in Valley, County, Idaho. 22. Approval Required: This Agreement shall not become effective or binding until approved by the City of McCall. 23. FORCE MAJEURE. Any delays in or failure of performance by ENGINEER shall not constitute breach hereunder if and to the extent such delays or failures of performance are caused by unforeseeable occurrences beyond the reasonable control of ENGINEER and are of such severity that timely performance of services hereunder is rendered impossible (“force majeure”). In the event that any event of force majeure, as herein defined occurs, ENGINEER shall be entitled to a reasonable extension of time for performance of its Services. CITY OF McCALL ENGINEER BY:_________________________ BY:____________________________ Robert S. Giles, Mayor Heidi Carter, P.E., Principal Dated:_______________________ Dated: 2/7/2024 Approved as to Form CITY ATTORNEY ATTEST _________________________ ________________________ William L. Punkoney BessieJo Wagner, City Clerk DocuSign Envelope ID: 409CC68C-F5E9-45A0-AFEF-127C30CE68F3 February 12, 2024 | 11:25 AM MST