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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. Page 1 of 7 Professional Engineering Agreement December 28, 2017 PROFESSIONAL ENGINEERING SERVICES TERM AGREEMENT 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 Page 2 of 7 Professional Engineering Agreement December 28, 2017 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. Page 3 of 7 Professional Engineering Agreement December 28, 2017 PROFESSIONAL ENGINEERING SERVICES TERM AGREEMENT 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. Page4of7 Professional Engineering Agreement December 28, 2017 PROFESSIONAL ENGINEERING SERVICES TERM AGREEMENT 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. Page 5 of 7 Professional Engineering Agreement December 28, 2017 PROFESSIONAL ENGINEERING SERVICES TERM AGREEMENT 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. Page 6 of 7 Professional Engineering Agreement December 28, 2017 PROFESSIONAL ENGINEERING SERVICES TERM AGREEMENT 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: /*/&) Nathan Stewart, P.E. Public Works Director Professional Engineering Agreement December 28, 2017 i/z41 t D to Page7of7