HomeMy Public PortalAbout2017.12.28 Professional engineering services term agreementPROFESSIONAL ENGINEERING SERVICES TERM AGREEMENT
This Agreement, made this 28th day of December, 2017, 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.
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SECTION 2
ADDITIONAL PROVISIONS
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 CONSULTANT, any officer, employee, or agent of CONSULTANT will not 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
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PROFESSIONAL ENGINEERING SERVICES TERM AGREEMENT
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.
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 CONSULTANT
City of McCall Horrocks Engineers, Inc.
Public Works Department 5700 E. Franklin Road, Suite 160
216 E. Park Street Nampa, Idaho 83687
McCall, ID 83638
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.
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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 mutually agreed upon by
and between. the CITY and CONSULTANT, shall be incorporated in written Task Order
Amendmentsto 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.
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 2.14 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.
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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
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 three (3) years, commencing upon January
15, 2018 and continuing through January 14, 2021, 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.
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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 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. A11
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.
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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
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
216 E. Park Street
McCall, Idaho 83638
APPROVED BY:
ATTEST:
Horrocks Engineers
5700 E. Franklin Rd, Suite 160
Nampa, Idaho 83687
Print Name & Title
la i�
BessieJo agner, Cit! Clerk at
APPROVED BY:
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Nathan Stewart, P.E.
Public Works Director
Professional Engineering Agreement
December 28, 2017
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