HomeMy Public PortalAbout2024.01.02_Master Agreement_6c_Horrocks
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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.
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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.
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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,
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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.
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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.
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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.
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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
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February 12, 2024 | 11:25 AM MST