Document Moscow_doc_07a0434041

PROFESSIONAL SERVICE CONTRACT AGREEMENT BETWEEN THE CITY OF MOSCOW, IDAHO AND TERRAGRAPHICS ENVIRONMENTAL ENGINEERING, INC. FOR ENVIRONMENTAL CONSULTING SERVICES IN SUPPORT OF THE GREATER MOSCOW AREA COALITION EPA BROWNFIELD ASSSESSMENT GRANT. This Agreement is made and entered into between the City of M oscow, Idaho (hereinafter "CITY"), and TerraGraphics Environmental Engineering, Inc. (hereinafter "CONSULTANT"). RECITALS CITY wishes to retain the services of a professional consulting firm to provide assistance with environmental services; (hereinafter "Professional Services"), to CITY on an as-needed basis and presented ro CONSULT ANT as an individual Task. CONSULTANT represents that it has the expe11ise, experience and personnel necessary to provide the Professional Services on an as-needed Task Order /project basis. CONSULTANT shall perform all services, and comply in all respects, as specified in CITY'S RFQ/P Environmental Consulting Services for EPA Brownfields Assessment, Greater Moscow Area Coalition dated May 31, 2011 and CONSULTANT'S Proposal, City of Moscow EPA Brownfields Assessment Greater Moscow Area Coalition dated June 16, 20 1 1 which are incorporated herein by this reference, together with any amendments that may be agreed to in \.vriting by the parties herein referred to as the PROJECT. CITY and CONSULTANT agree that the scope of work and payment for each task will be negotiated and authorized by individual Task Orders. The CONSULTANT agrees to perform the various professional services delineated in the Task Orders for said PROJECT. The Task Order form is shown in Exhibit A. In consideration of the above recitals and the mutual covenants and conditions set forth herein and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby set forth their mutual covenants and understandings as follows: ARTICLE I CONSULTANT SERVICES The above-listed recitals are true and correct and are hereby incorporated by reference. ---PAGE BREAK--- I . I Professional Services which will be determined by CITY on an as-needed basis and presented to CONSULTANT as an individual Task. CONSULTANT shall perform each Task at the direction of CITY and as more specifically described in each Task Order. 1 . 1 . 1 Task Order. Prior to beginning performance in response to a Task Order, CONSULTANT shall execute the Task Order and acknowledge receipt and acceptance of the Task Order. Each Task Order shall include a description of the services to be provided, a cost estimate, and the time for completion. The Task Order shall include all activities or work reasonably anticipated as necessary for successful completion of each Task requested by CITY. 1 . 1 .2 Non-Exclusivity. CONSULTANT agrees that this Agreement is non-exclusive ancl that CITY may enter into agreements with other consulting firms to perform substantially the ->ame or similar professional services during the term of this Agreement. 1 .2 Unique Professional Services. It is understood that this Agreement is for unique Professional Services. CONSULTANT represents and warrants that it has the qualifications, experience and facilities necessary to properly perform the services required under this Agreement, in a thorough, competent and professional manner. Retention of the CONSULTANT's Professional Services is based on the particular professional expertise of the individuals rendering the services set forth in the Scope of Services. Accordingly, portions of the described services may not be delegated to other members of the team or SUBCONSULTANT(S) without prior written consent by CITY. 1 .3 CITY Designated Representative and CONSULTANT Contact. CONSULTANT shall provide the Professional Services under the direction of a representative of CITY, designated by CITY Supervisor (Designated Representative is Jeffrey B. Jones, AICP). CITY's Designated Representative shall communicate with CONSULT ANT on all matters related to the administration of this Agreement and CONSULTANT's performance of the Professional Services rendered hereunder. When this Agreement refers to communications to or with CITY, those communications will be with the Designated Representative, unless the Designated Representative or this Agreement specifies otherwise. Further, when this Agreement refers to an act or approval to be performed by CITY, that act or approval shall be peti'ormed by CITY Supervisor or designee, unless the Agreement specifies otherwise. Mr. Jerry Lee, President of Operations is the principal person responsible for delivery of all Professional Services and may not be removed from that role without CITY's prior written approval. In the event that CONSULTANT's designated representative becomes unavailable for any reason, CITY must be consulted as to any replacement CONSULTANT's contact. Further, CITY reserves the right, after consultation with CONSULTANT, to require removal of CONSULTANT's employees or agents from CITY matters. 1 .4 Modification of Scope of Services. CITY may, without invalidating this Agreement, order changes in any Task or the Scope of Services by altering, adding to or deducting from the services to be performed. All such changes shall be in writing and shall be performed in accordance with the provisions of this Agreement. If any such changes cause an increase or decrease in CONSULTANT's cost of, or the time required for, the performance of any of the Professional Services, CONSULTANT shall immediately notify CITY. 2 ---PAGE BREAK--- 1.5 Written Authorization. Throughout the term of this Agreement, CONSULTANT shall immediately advise CITY in writing of any anticipated changes to any Task, including any changes to the time for completion, and shall obtain CITY's written consent to the change prior to making any changes. In no event shall CITY's consent be construed to relieve CONSULTANT from its duty to render all Professional Services in accordance with applicable laws and accepted industry standards. 1.6 Confidentiality of Services. All Professional Services performed by CONSULTANT, inc! udi ng but not limited to all drafts, data, correspondence, proposals, reports, and estimates compiled or composed by CONSULTANT, pursuant to this Agreement, are for the sole use of CITY, its agents and employees. Neither the documents nor their contents shall be released to any third party without the prior written consent of CITY. This provision does not apply to information that was publicly known, or otherwise known to CONSULTANT, at the time that it was disclosed to CONSULTANT by CITY, subsequently becomes publicly known through no act or omission of CONSULTANT, or otherwise becomes known to CONSULTANT other than through disclosure by CITY. Except for SUBCONSULTANT(S) covered by Section 4.6, neither the documents nor their contents shall be released to any third party without the prior written consent of CITY. ARTICLE II DURATION OF AGREEMENT 2.1 Term of Agreement. This Agreement shall be effective on the date it is executed by the last Party to sign the Agreement. Unless otherwise terminated, this Agreement shall be effective for issuing new Task Orders and it shall be effective until completion of the Scope of Services with CONSULTANT through July 31, 2012. Active Task Orders which are not complete at the time the Agreement terminates, shall continue or shall be amended as required, so the Task Order may be completed. 2.2 Timely Performance The work will be performed in a timely manner for each provision of this Agreement, unless otherwise specified in this Agreement. The time for performance of any Task shall be set forth in the Task Order. 2.3 Notification of Delay. CONSULTANT shall immediately notify CITY in if CONSULTANT experiences or anticipates experiencing a delay in performing the Professional Services within the time frames set forth in the Task Order. The written notice shall include an explanation of the cause for, and a reasonable estimate of the length of, the delay. If in the opinion of CITY, the delay affects a material part of the Task, CITY may exercise its rights under Sections 2.5 and 2.6 of this Agreement. 2.4 Delay. If delays in the performance of the Professional Services are caused by unforeseen events beyond the control of the Parties, such delay may entitle CONSULTANT to a reasonable extension of time, but such delay shall not entitle CONSULTANT to damages or additional compensation. Any such extension of time must be approved in writing by CITY. 3 ---PAGE BREAK--- The following conditions may constitute such a delay: war; changes in law or government regulation; labor disputes; strikes; fires, floods, adverse weather or other similar condition of the elements necessitating cessation of CONSULTANT's work; inability to obtain materials, equipment or labor; required additional Professional Services; or other specific reasons agreed to between CITY and CONSULTANT; provided, however, that: this provision shall not apply to, and CONSULTANT shall not be entitled to an extension of time for a delay caused by the acts or omissions of CONSULTANT; and a delay caused by the inability to obtain materials, equipment, or labor shall not entitle CONSULTANT to an extension of time unless CONSULTANT furnishes CITY, in a timely manner, documentary proof satisfactory to CITY of CONSULTANT's inability to obtain materials, equipment, or labor. 2.5 CITY's Right to Terminate for Convenience. CITY may, at its sole option and for its convenience, terminate rill or any portion of the Professional Services agreed to pursuant to this Agreement by giving written notice of such termination to CONSULTANT. Such notice shall be delivered by certified mail with return receipt for delivery to CITY. The termination of the Professional Services shall be effective upon receipt of the notice by CONSULTANT. After termination of this Agreement, CONSULTANT shall complete any and all additional work necessary for the orderly filing of documents and closing of CONSULTANT's Professional Services under this Agreement. For services rendered in completing the work, CONSULTANT shall be entitled to fair and reasonable compensation for the Professional Services performed by CONSULTANT before the effective date of termination. After filing of documents and completion of performance, CONSULTANT shall deliver to CITY all reports, letters, calculations, and other documents or records related to CONSULTANT's Professional Services on all Tasks. By accepting payment for completion, filing and delivering documents as called ror in this paragraph, CONSULTANT discharges CITY of all of CITY's payment obligations and liabilities under this Agreement. 2.6 CITY's Right to Terminate for Default. If CONSULTANT fails to petform or adequately perform any obligation required by this Agreement, CONSULTANT's failure constitutes a default. A default includes CONSULTANT's failure to complete the Professional Services within the time for completion as set forth in the Task Order. If CONSULTANT fails to satisfactorily cure a default within ten (10) calendar days of receiving written notice from CITY specifying the nature of the default, CITY may immediately cancel and/or terminate this Agreement, and terminate each and every right of CONSULTANT, and any person claiming any rights by or through CONSULTANT under this Agreement. The rights and remedies of CITY enumerated in this Section are cumulative and shall not limit, waive, or deny any of CITY's rights under any other provision of this Agreement. Nor does this Section otherwise waive or deny any right or remedy, at law or in equity, existing as of the date of this Agreement or hereinafter enacted or established, that may be available to CITY against CONSULTANT. ARTICLE III COM PEN SA TION 3.1 Amount of Compensation. CITY shall pay to CONSULTANT on an hourly basis with an established not-to-exceed cost for each individual assignment, a lump sum fee or an agreed 4 ---PAGE BREAK--- upon fee arrangement via a Task Order. The proposed staff, estimated hours, and any additional costs shall be established through mutual agreement between CONSULT ANT and CITY via a Task Order. Work shall not sta11 until all appropriate signatures are obtained on the Task Order for each assignment. 3.2 Manner of Payment. CONSULTANT shall submit to CITY one original invoice per calendar month for Professional Services performed and expenses incurred in accordance with this Agreement. CONSULTANT shall include with each invoice a description of completed work. Invoices shall provide detailed billing information including, but not limited to, a detailed description of the service rendered, date of service, CONSULTANT time devoted to service, CONSULTANT name, billing rate, and total amount billed per each service. A receipt for each category of expense must accompany the invoice to qualify for reimbursement by CITY. Invoices to CITY must be in accordance with the Scope of Services and the Fee Schedule and will be payable, if approved, within thi11y (30) calendar days of receipt. A charge of one percent per month will be added by CONSULTANT to all past due accounts; however, this provision shall not apply to any amounts in dispute. In the event any charges or expenses are disputed by CITY, the original invoice shall be returned by CITY to CONSULTANT for correction and resubmission. ARTICLE IV CONSULTANT'S OBLIGATIONS 4.1 Industry Standards. CONSULT ANT agrees that the Professional Services rendered under this Agreement shall be performed in accordance with the standards customarily adhered to by an experienced and competent professional practicing in the same field of service in the State or Idaho. Where approval by CITY is required, it is understood to be general approval only and does not relieve CONSULTANT of responsibility for complying with all applicable laws, codes, and good consulting practices. 4.2 Compliance with Controlling Law. CONSULTANT shall comply with all laws, ordinances, regulations, and policies of the federal, state, and local governments applicable to this Agreement. In addition, CONSULTANT shall comply immediately with all directives issued by CITY or its authorized representatives under authority of any laws, statutes, ordinances, rules, or regulations. The laws of the State of Idaho shall govern and control the terms and conditions of this Agreement. 4.3 Maintenance of Records. CONSULTANT shall maintain books, records, logs, documents and other evidence sufficient to record all actions taken with respect to the rendering or the Professional Services, throughout the performance of the Professional Services and for a period of five years following completion of the Professional Services for the Project. CONSULTANT further agrees to allow CITY to inspect, copy, and audit such books, records, documents and other evidence at all reasonable times. 4.4 Right to Audit. 5 ---PAGE BREAK--- 4.4.1 Access. CITY retains the right to review and audit, and the reasonable right of access to CONSULTANT's and any SUBCONSULTANT(S)' premises to review and audit CONSULTANT's or SUBCONSULTANT(S)' compliance with the provisions of this Agreement (CITY's Right). CITY's Right includes the right to inspect and photocopy same, and to retain copies, outside of the CONSULTANT's premises, of any and all Project related records with appropriate safeguards, if such retention is deemed necessary by CITY in its sole discretion. This information shall be kept by CITY in the strictest confidence allowed by law. 4.4.2 Audit. CITY's Right includes the right to examine any and all books, records, documents and any other evidence of procedures and practices that CITY determines are necessary to discover and verify that CONSULTANT or SUBCONSULTANT(S) is in compliance with all requirements under this Agreement. 4.4.2. I Cost Audit. If there is a claim for additional compensation, CITY's Right includes the right to examine books, records, documents, and any and all other evidence and accounting procedures and practices that CITY determines are necessary to discover and verify all direct and indirect costs, of whatever nature, which are claimed to have been incurred, or anticipated to be incurred. 4.4.2.2 Accounting and Other Records. CONSULTANT and all SUBCONSULTANT(S) shall maintain complete and accurate records in accordance with Generally Accepted Accounting Practices in the industry. CONSULTANT and SUBCONSULTANT(S) shall make available to CITY for review and audit all Agreement related accounting records and documents, and any other financial data. Upon CITY's request, CONSULTANT and SUBCONSULTANT(S) shall submit exact duplicates of originals of all requested records to CITY. In addition, CONSULTANT shall maintain books, records, logs, documents, and other evidence sufficient to record all actions taken with respect to the rendering of the Professional Services, throughout the term of this Agreement and for a period of five years following the expiration or termination of this Agreement, as the case may be. CONSULTANT further agrees to allow CITY to inspect, copy, and audit such books, records, documents and other evidence at all reasonable times. 4.4.3 City's Right Binding on SUBCONSULTANT(S). CONSULTANT shall include CITY's Right as described in Section 4.4, in any and all of their subcontracts, and shall ensure that these sections are binding upon all SUBCONSULT ANT(S). 4.5 Insurance. CONSULTANT shall not begin the Professional Services under this Agreement until it has: obtained and provided to CITY insurance certificates and endorsements retlecting evidence of all insurance required in Section 4.5. 1 ; however, CITY reserves the right to request, and CONSULTANT shall submit, copies of any policy upon reasonable request by CITY; and confirmed that all policies contain the specific provisions required in Section 4.5.4. CONSULTANT's liabilities, including but not limited to CONSULTANT' indemnity obligations, under this Agreement, shall not be deemed limited in any way to the insurance coverage required herein. Except as provided for under Idaho law, all policies of insurance required hereunder must provide that CITY is entitled to thirty (30) days 6 ---PAGE BREAK--- prior written notice (ten [!OJ days for cancellation due to non-payment of premium) of cancellation or non-renewal of the policy or policies. Maintenance of specified insurance coverage is a material element of this Agreement and CONSULTANT's failure to maintain or renew coverage or to provide evidence of renewal during the term of this Agreement may be treated as a material breach of contract by CITY. Further, CONSULTANT shall not modify any policy or endorsement thereto which increases CITY's exposure to loss for the duration of this Agreement. 4.5.1 Types of Insurance. At all times during the term of this Agreement, CONSULT ANT shall maintain insurance coverage in the amounts required by CITY as follows: 7 4.5. I .1 Commercial General Liability. Commercial General Liability (CGL) Insurance written on an ISO Occurrence form CG 00 01 or an equivalent form providing coverage at least as broad which shall cover liability arising from any and all personal injury or property damage in the amount of one million dollars ($1,000,000) per occurrence and subject to an annual aggregate of two million dollars ($2,000,000). There shall be no endorsement or modification of the CGL which limits the scope of coverage for either insured vs. insured claims or contractual liability. All defense costs shall be outside the limits of the policy. 4.5. 1 .2 Automobile Liability. For all of CONSULTANT's automobiles including owned, hired and non-owned automobiles, CONSULTANT shall keep in fvll force and effect, automobile insurance written on an ISO form CA 00 01 or a later version of this form or an equivalent form providing coverage at least as broad for bodily injury and property damage for a combined single limit of one million dollars ,000,000) per occurrence. The Insurance certificate shall reflect coverage for any automobile. 4.5.1 .3 Workers' Compensation. For all of CONSULTANT's employees who are subject to this Agreement and to the extent required by the applicable state or federal law, CONSULTANT shall keep in full force and effect, a Workers' Compensation policy. This policy shall provide a minimum of one million dollars ($1,000,000) of employers' liability coverage, and CONSULTANT shall provide an endorsement that the insurer waives the right of subrogation against CITY and its respective officials, officers, employees, agents and representatives. 4.5.1 .4 Professional Liability. For all of CONSULTANT's employees who are subject to this Agreement and to the extent required by applicable State or federal law, CONSULTANT shall keep in full force and effect, Professional Liability (Errors and Omissions) coverage with a limit of one million dollars ,000,000) per claim and two million dollars ($2,000,000) annual aggregate. CONSULTANT shall ensure both that: ( 1 ) the policy retroactive date is on or before the date of commencement of the Agreement; and coverage for claims arising from events during the Scope of Services will be maintained in force for a period of three years after completion of the Professional Services performed under this Agreement or termination ---PAGE BREAK--- of this Agreement whichever occurs last. CONSULTANT agrees that for the time period defined above, there will be no changes or endorsements to the policy that increase CITY's exposure to loss. 4.5.2 Deductibles. All deductibles on any policy shall be the responsibility of CONSULTANT and shall be disclosed to CITY at the time the evidence of insurance is provided. 4.5.3 Acceptability of Insurers. 4.5.3.1 Except for the State Insurance Fund, all insurance required by this Agreement or in the Special General Conditions shall only be carried by insurance companies with a rating of at least VI" by A.M. Best Company, that are authorized by the Idaho Department of Insurance to do business in the State of Idaho. 4.5.3.2 CITY will accept insurance provided by non-admitted, "surplus lines" carriers only if the carrier is authorized to do business in the State of Idaho and is included on the List of Eligible Surplus Lines Insurers (LESLI list). All policies of insurance carried by non-admitted carriers are subject to all of the requirements for policies of insurance provided by admitted carriers described herein. 4.5.4 Required Endorsements. The following endorsements to the policies of insurance are required to be provided to CITY before any work is initiated under this Agreement. 8 4.5.4.1 Commercial General Liability Insurance Endorsements Additional Insured. To the fullest extent allowed by law, the policy or policies must be endorsed to include as insured CITY and their respective officers, employees, agents, elected officials, and representatives with respect to liability arising out of ongoing operations performed by CONSULTANT or on CONSULTANT's behalf, CONSULTANT's products, CONSULTANT's work, including but not limited to completed operations performed by CONSULTANT or on CONSULTANT's behalf, or premises owned, leased, controlled or used by CONSULTANT. Primary and Non-Contributory Coverage. The policy or policies must be endorsed to provide that the insurance afforded by the Commercial General Liability policy or policies is primary to any insurance or self-insurance of CITY and their respective officers, employees, agents, elected officials, and representatives of the named insured. Any insurance maintained by CITY and their respective officers, employees, agents, elected officials and representatives shall be in excess of CONSULTANT's insurance and shall not contribute to it. 4.5.4.2 Automobile Liability Insurance Endorsements Additional Insured. To the fullest extent allowed by law, the policy or policies must be endorsed to include as an insured CITY and their respective officers, employees, ---PAGE BREAK--- agents, elected officials, and representatives with respect to liability ansmg out of automobiles owned, leased, hired or borrowed by or on behalf of CONSULTANT. 4.5.4.3 Endorsements Worker's Compensation and Employer's Liability Insurance Waiver Of Subrogation. The Worker's Compensation policy or policies must be endorsed to provide that the insurer will waive all rights of subrogation against CITY and their respective officers, employees, agents, elected officials, and representatives for losses paid under the terms of the policy or policies which arise from work performed by the named insured for CITY. 4.5.5 Reservation of Rights. CITY reserves the right, from time to time, to review CONSULTANT's insurance coverage, limits, deductible, and self-insured retentions to determine if they are acceptable to CITY. CITY may reimburse CONSULTANT for the cost of the additional premium for any coverage requested by CITY in excess of that required by this Agreement without overhead, profit, or any other markup. 4.5.6 Excess Insurance. All policies providing excess coverage to CITY shall follow the form of the primary policy or policies including, but not limited, to all endorsements. 4.6 SUBCONSULTANT(S) 4.6.1 City Approval of SUBCONSULTANT(S) Required. CONSULTANT's hiring or retaining of any third parties [SUBCONSULTANT(S)] to perform services related to the Professional Services (SUBCONSULTANT(S) Services) is subject to prior approval by CITY. CONSULTANT shall list on the SUBCONSULTANT(S) List (Attachment IV) all SUBCONSULTANT(S) known to CONSULTANT at the time this Agreement is executed. If, at any time after this Agreement is entered into, CONSULTANT identifies a need for additional SUBCONSULTANT(S) Services, CONSULTANT shall give written notice to CITY of the need, at least forty-five (45) working days before entering into an agreement for such SUBCONSULTANT(S) Services. CONSULTANT's notice shall include a justification, a description of the scope of work, and an estimate of all costs for the SUBCONSULTANT(S) Services. CONSULTANT may request that CITY reduce the fo1ty-five (45) day notice period. CITY agrees to consider such requests in good faith. 4.6.2 SUBCONSULTANT(S) Insurance Requirement. Each SUBCONSULTANT(S) shall obtain insurance policies which shall be kept in full force and effect during any and all work related to the Professional Services and for the duration of this Agreement. Each SUBCONSULTANT(S) shall obtain, and CONSULTANT shall require the SUBCONSULTANT(S) to obtain, all policies described in Section 4.5.1 . 4.6.3 SUBCONSULTANT(S) Contracts. A copy of all contracts between CONSULTANT and SUBCONSULTANT(S) shall be submitted to CITY for approval prior to commencing work related to the Professional Services. Thereafter, CONSULTANT shall submit to CITY for approval, any proposed change in a contract between CONSULTANT and any 9 ---PAGE BREAK--- SUBCONSULTANT(S) that reduces or mcreases the scope of the SUBCONSULTANT(S) Services. 4.6.4 Payment of SUBCONSULTANT(S). CONSULTANT is obligated to pay the SUBCONSULTANT(S) out of amounts paid by CITY to CONSULTANT, no later than fourteen ( 14) working days from CONSULTANT's receipt of payment from CITY. Nothing in this paragraph shall be construed to impair the right of CONSULTANT and any SUBCONSULTANT(S) to negotiate fair and reasonable pricing and payment provisions among themselves. In the case of a deficiency in the performance of SUBCONSULTANT(S) Services, CONSULTANT shall notify CITY in writing of any withholding of payment to the SUBCONSULTANT(S), specifying: the amount withheld; the specific cause under the terms of the Agreement for withholding payment; the connection between the cause for withholding payment and the amount withheld; and the remedial action the SUBCONSULTANT(S) must take in order to receive the amount withheld. Once the SUBCONSULTANT(S) corrects the deficiency, CONSULTANT shall pay the SUBCONSULTANT(S) the amount withheld within fourteen (14) working days of CONSULTANT's receipt of CITY's next payment. 4.6.5 Dispute between CONSULTANT and SUBCONSULTANT(S). In any dispute between CONSULTANT and SUBCONSULTANT(S), CITY shall not be made a party to any judicial or administrative proceeding to resolve the dispute. CONSULTANT agrees to defend and indemnify CITY. 4.6.6 Disadvantage Business Enterprise (DBE). The SUBCONSULTANT(S) is bound tu CITY's Disadvantage Business Enterprise (DBE) contracting policies. 4.6.7 Beneficiary. CITY is an intended beneficiary of any work performed by the SUBCONSULTANT(S) for purposes of establishing a duty of care between the SUBCONSULTANT(S) and CITY. 4.7 Drug-Free Workplace. CONSULTANT agrees to comply with CITY's Drug-Free Workplace requirements. CONSULTANT shall certify to CITY that it will provide a drug-free workplace by submitting a CONSULTANT Certification for a Drug-Free Workplace form (Attachment VIII). 4.7.1 SUBCONSULTANT(S)' Agreements. CONSULTANT further certifies that each contract for SUBCONSULTANT(S) Services performed under this Agreement shall contain language that binds the SUBCONSULTANT(S) to comply with the provisions of Section 4.8 of this Agreement. CONSULTANT and SUBCONSULTANT(S) shall be individually responsible for their own drug-free work place program. 4.8 Product Endorsement. CONSULTANT acknowledges and agrees to comply with CITY policieʠ. concerning product or service endorsement. Any advet1isement identifying or referring to C lTY as the user of a product or service requires the prior wri tlen approval of CITY. In connection with the Professional Services performed under this Agreement, CONSULTANT shall not recommend or specify any product, supplier, or CONSULTANT with whom 10 ---PAGE BREAK--- CONSULTANT has a direct or indirect financial or organizational interest or relationship that would violate conflict of interest laws, regulations, or policies. 4.9 Cont1ict of Interest. CONSULTANT is subject to all federal, state and local conflict of interest laws, regulations, and policies applicable to public contracts and procurement practices. 4.9.1 CONSULTANT shall establish and make known to its employees and agents appropriate safeguards to prohibit employees from using their positions for a purpose that is, or that gives the appearance of being, motivated by the desire for private gain for themselves or others, particularly those with whom they have family, business, or other relationships. 4.9.2 If CONSULTANT violates any conflict of interest law, the violation shall be grounds for immediate termination of this Agreement. Further, the violation subjects CONSULTANT to liability to CITY for attorney's fees and all damages sustained as a result of the violation. 4.10 Mandatory Assistance. If a third party dispute or litigation, or both, arises out of, or relates in any way to the Professional Services provided under this Agreement, upon CITY's request, CONSULTANT, its agents, officers, and employees agree to assist in resolving the dispute or litigation. CONSULTANT's assistance includes, but is not limited to, providing professional consultations, attending mediations, arbitrations, depositions, trials or any event related to the dispute resolution and/or litigation. 4.1 0.1 Compensation for Mandatory Assistance. CITY will compensate CONSULTANT for fees incurred for providing mandatory assistance. If, however, the fees incurred for the mandatory assistance are determined, through resolution of the third party dispute or litigation, or both, to be attributable in whole or in part to the acts or omissions of CONSULT ANT, its agents, officers, and employees, CONSULTANT shall reimburse CITY. CITY is then entitled to reimbursement of all fees paid to CONSULTANT, its agents, officers, and employees for mandatory assistance. 4. I 0.2 Attorney Fees related to mandatory assistance. In providing CITY with dispute or litigation assistance, CONSULTANT or its agents, officers, and employees may incur expenses and/or costs. CONSULTANT agrees that any attorney fees it may incur as a result of assistance provided under Section 4.10 are not reimbursable. ARTICLE V CITY'S OBLIGATIONS 5.1 Ownership of Documents. Once the CONSULTANT(S) has received any compensation for the Professional Services performed, all original documents, including but not limited to, maps, models, designs, photographs, surveys, reports, notes, letters, profiles, original plans, studies, sketches, drawings, computer printouts and disk files, specifications, and other documents prepared, developed or discovered in connection with or related to the Scope of Services or Professional Services, with the exception of CONSULT ANT's proprietary computer 1 1 ---PAGE BREAK--- models, shall become the sole use of CITY. CITY's ownership of these documents includes use of, reproduction or reuse of, and all incidental rights, whether or not the work for which they were prepared has been performed. CITY's ownership entitlement arises upon payment or any partial payment for work performed and includes ownership of any and all work product completed prior to that payment. This section shall apply whether CONSULTANT's Professional Services are terminated: by the completion of the Scope of Services, or in accordance with other provisions of this Agreement. Notwithstanding any other provision of this paragraph or Agreement, CONSULTANT shall have the right to make copies of all such maps, models, designs, photographs, surveys, reports, notes, letters, protlles, original plans, studies, sketches, drawings, computer printouts and disk files, specifications, and other documents. 5.2 Additional CONSULTANTS. CITY reserves the right to employ, at its own expense, such additional CONSULTANTS as CITY deems necessary to provide the Professional Services it requires. ARTICLE VI INDEMNIFICA TJON 6.1 Indemnification. To the fullest extent permitted by law, CONSULTANT shall defend (with legal counsel reasonably acceptable to CITY), indemnify and hold harmless CITY and its officers, agents, departments, officials, and employees (Indemnified Parties) from and against all claims, losses, costs, damages, injuries (including, without limitation, injury to or death of an employee of CONSULTANT or its SUBCONSULTANT(S)), expense and liability of every kind, nature and description (including, without limitation, court costs, reasonable attorney's fees, litigation expenses and fees of expe1t consultants or expert witnesses incurred in connection therewith and costs of investigation) that arise out of, pertain to, or relate to, directly or indirectly, in whole or in part, any services performed in an allegedly negligent or otherwise legally unlawful manner under this Agreement by CONSULTANT, any SUBCONSULTANT(S), anyone directly or indirectly employed by them, or anyone that they control. CONSULTANT's duty to defend, indemnify, protect and hold harmless shall not include any claims or liabilities arising from the sole negligence or willful misconduct of the Indemnified Parties. CONSULTANT'S aggregate liability for the afore said matters shall be the proceeds recovered from and within the limits of the insurance required. 6.2 Defense. The Parties will work in good faith to procure applicable insurance coverage for the cost of any defense that arises out of, pertains to, or relates to, directly or indirectly, in whole or in part, any services performed under this Agreement by CONSULTANT, any SUBCONSULTANT(S), anyone directly or indirectly employed by them, or anyone that they control. 6.3 Disclaimer of Consequential Damages. Consultants will not be liable for any special incidental, indirect or consequential damages, whether bassed on contract tort (including negligence), strict liability or otherwise. 12 ---PAGE BREAK--- 6.4 Enforcement Costs. CONSULTANT agrees to pay any and all costs CITY mcurs enforcing the indemnity and defense provisions set fmth in this Article. ARTICLE VII MISCELLANEOUS 7 .l Notices. In all cases where written notice is required under this Agreement, service shall be deemed sufficient if the notice is deposited in the United States mail, postage paid. Proper notice shall be effective on the date it is mailed, unless provided otherwise in this Agreement. For the purpose of this Agreement, unless otherwise agreed in writing, Notice to CITY shall be addressed to: Economic Development Specialist City of Moscow PO Box 9203 Moscow, ID 83843 With a copy to: City Attorney City of Moscow P 0 Box 9203 Moscow, ID 83843 Notice to CONSULTANT shall be addressed to: Jerry Lee, President of Operations TerraGraphics Environmental Engineering, Inc. 121 South Jackson Street Moscow, Idaho 83843 7.2 Headings. All article headings are for convenience only and shall not affect the interpretation of this Agreement. 7.3 Non-Assignment. CONSULTANT shall not assign the obligations under this Agreement, whether by express assignment or by sale of the company, nor any monies due or to become due, without CITY's prior written approval. Any assignment in violation of this paragraph shall constitute a default and is grounds for immediate termination of this Agreement, at the sole discretion of CITY. In no event shall any putative assignment create a contractual relationship between CITY and any putative assignee. CITY acknowledges, however, that CONSULTANT, in the performance of Professional Services pursuant to this Agreement, may utilize SUBCONSULTANT(S). 7.4 Independent CONSULTANT. CONSULTANT and any SUBCONSULTANT(S) employed by CONSULTANT shall be independent CONSULTANT($) and not agents of CITY. 13 ---PAGE BREAK--- Any provisions of this Agreement that may appear to give CITY any right to direct CONSULT ANT(S) concerning the details of pe1forming the Professional Services, or to exercise any control over such performance, shall mean only that CONSULTANT(S) shall follow the direction of CITY concerning the end results of the performance. 7.5 Employment of Staff. This Agreement may be unilaterally and immediately terminated by CITY, at its sole discretion, if CONSULTANT employs an individual who, within the last twelve ( 12) months immediately preceding such employment did, in the individual's capacity as an officer or employee of CITY, participate in, negotiate with, or otherwise have an influence on the recommendation made in connection with the selection of CONSULTANT. 7.6 Covenants and Conditions. All provisions of this Agreement expressed as either covenants or conditions on the part of CITY or CONSULTANT shall be deemed to be both covenants and conditions. 7.7 Amendments to Agreement. All modifications to this Agreement that affect the total compensation or term of the Agreement shall be in writing and approved by CITY in the same manner as the original Agreement. All other modifications shall be agreed to by both Parties in writing. 7.8 Jurisdiction and Attorney Fees. The jurisdiction and applicable laws for any suit or proceeding concerning this Agreement, the interpretation or application of any of its terms, or any related disputes shall be in accordance with the laws of the State of Idaho. The prevailing Party in any such suit or proceeding shall be entitled to a reasonable award of attorney fees in addition tu any other award made in such suit or proceeding. 7.9. lt is agreed that this Agreement shall be construed under and governed by the laws of the State of Idaho. In the event of litigation concerning it, it is agreed that proper venue shall be the District Court of the Second Judicial District of the State of Idaho, in and for the County of Latah. 7 . I 0 Successors in Interest. This Agreement and all rights and obligations created by this Agreement shall be in force and effect whether or not any Pmties to the Agreement have been succeeded by another entity, and all rights and obligations created by this Agreement shall be vested and binding on any Party's successor in interest. 7. 1 1 integration. This Agreement and the Exhibits and references incorporated into this Agreement fully express all understandings of the Parties concerning the matters covered in this Agreement. No change, alteration, amendment, or modification of the terms or conditions of this Agreement, and no verbal understanding of the Parties, their officers, agents, or employees shall be valid unless made in the form of a change agreed to in writing by both Parties or an amendment to this Agreement pursuant to Section 7. 7. All prior negotiations and agreements are merged into this Agreement. 1 4 ---PAGE BREAK--- 7.1 2 Counterparts. This Agreement may be executed in counterparts, which when taken together shall constitute a single signed original as though all Parties had executed the same page. 7.1 3 No Waiver. No failure of either CITY or CONSULTANT to insist upon the strict performance by the other of any covenant, term or condition of this Agreement, nor any failure to exercise any right or remedy consequent upon a breach of any covenant, term, or condition of this Agreement, shall constitute a waiver of any such breach of such covenant, term or condition. No waiver of any breach shall affect or alter this Agreement, and each and every covenant, condition, and term hereof shall continue in full force and effect without respect to any existing or subsequent breach. 7.14 Severability. The unenforceability, invalidity, or illegality of any provisiOn of this Agreement shall not render any other provision of this Agreement unenforceable, invalid, or illegal. 7.1 5 Municipal Powers. Nothing contained 111 this Agreement shall be construed as a limitation upon the powers of CITY. 7.1 6 Drafting Ambiguities. The Parties agree that they are aware that they have the right to be advised by counsel with respect to the negotiations, terms and conditions of this Agreement, and the decision of whether or not to seek advice of counsel with respect to this Agreement is a decision which is the sole responsibility of each Party. This Agreement shall not be construed in favor of or against either Party by reason of the extent to which each Party participated in the drafting of the Agreement. 7. 1 7 Conflicts Between Terms. If an apparent conflict or inconsistency exists between the main body of this Agreement and the Exhibits, the main body of this Agreement shall control. If a conflict exists between an applicable federal, state, or local law, rule, regulation, order, or code and this Agreement, the law, rule, regulation, order, or code shall control. Varying degrees of stringency among the main body of this Agreement, the Exhibits, and laws, rules, regulations, orders, or codes are not deemed conflicts, and the most stringent requirement shall control. Each Party shall notify the other immediately upon the identification of any apparent conflict or inconsistency concerning this Agreement. 7.1 8 Attachments Incorporated. All Attachments referenced 111 this Agreement are incorporated into the Agreement by this reference. 7.19 Survival of Obligations. All representations, indemnifications, warranties and guarantees made in, required by, or given i n accordance with this Agreement, as well as all continuing obligations indicated in this Agreement, shall survive, completion and acceptance of the Professional Services and termination or completion of the Agreement. 1 5 ---PAGE BREAK--- IN WITNESS WHEREOF, this Agreement is executed by CITY, acting by and through its Mayor, and by CONSULTANT to be executed in triplicate as of the date so indicated. Dated this  day of .AvllA.S't , 201 1 . TERRAGRAPHICS ENVIRON ENGINEERING, INC. CITY ACKNOWLEDGMENT STATE OF IDAHO ) ss. COUNTY OF LATAH ) STATE OF IJ, /o COUNTY OF Lu L 16 ) ) ss. ) ---PAGE BREAK--- 17 ---PAGE BREAK--- Exhibit A. SAMPLE CITY TASK ORDER This Task Order, entered into this day of , 20 , between the City æf Moscow, Idaho (hereinafter referred to as "CITY")and Company name (hereinafter referred to as the "CONSULTANT(S)"), is subject to the provisions of the RFQ/P Environmental Consulting Services, RFQ/P XX-XXX, dated Month Day, Year (hereinafter referred to as the "Agreement"). W I T N E S S E T H : WHEREAS, CITY intends to , hereinafter referred to as the Project; NOW, THEREFORE, CITY and CONSULTANT(S) in consideration of their mutual covenants herein agree in respect as set forth below. Client Information And Responsibilities: The CITY will provide CONSULTANT(S) the data and/or serv1ces as specified in the Agreement. I n addition. the CITY will furnish to CONSU LTANT(S) _ _ _ _ _ Services to be Performed by CONSULTANT(S): CONSULTANT(S) will _ _ _ Schedule of Services to be Performed: CONSULTANT(S) will pe1t'orm said services within calendar days of the date of this Task Order. Basis Of Fee And Billing Schedule: The CITY will pay CONS ULTANT(S) for its services and reimbursable expenses as follows: , with a not-to-exceed cost for each Project assignment or a lump sum fee. IN WITNESS W HEREOF, the Parties hereto have executed this Task Order Agreement as of the day and year first above written. City of Moscow Recommended for approval: Yes o No o Approved by (Signature): Print Name: Title: Date: 1 8 Consultant I hereby acknowledge receipt and acceptance of this Task Order for: Approved by (Signature): Print Name: Title: Date: ---PAGE BREAK--- STATE INSURANCE FUND CERTIFICATE HOLDER: 1366945 CITY OF MOSCOW 206 E THIRD ST MOSCOW ID 83843 AGENT: 92 TROY INSURANCE AGENCY INC PO BOX 796 LEWISTON ID 83501 208/743-3541 JOB REFERENCE: WAIVER OF SUBROGATION FOR CITY OF MOSCOW EFF 8/16/11 CERTIFICATE OF WORKERS COMPENSATION INSURANCE The State Insurance Fund hereby certifies that the insurance policy hereunder described is in full force and effect on the date of this certificate and that it remains in full force and effect until canceled. POLICY NUMBER: 524994 INSURED: TERRAGRAPHICS ENVIRONMENTAL INC 121 S JACKSON MOSCOW ID 83843 ORIGINAL EFFECTIVE DATE : 03/29/1988 Policy in force from 03/29/1988 12:01 a.m. at the mailing address of the insured shown above or the job site in Idaho. PART TWO: EMPLOYERS LIABILITY INSURANCE LIMITS Bodily Injury by Accident $500,000 each accident Bodily Injury by Disease $500,000 policy limit Bodily Injury by Disease $500,000 each accident The insurance coverage applies to employees of the above-mentioned company anywhere in the state of Idaho and also to any employees living in Idaho but working temporarily in a neighboring state. In addition to the required coverage, the following elected coverage also applies: This certificate is valid for one year from date of certificate. In the event of cancellation of said policy, the State Insurance fund will endeavor to notify the party to whom this certificate is issued by providing thirty (30) days advance notice, but the State Insurance Fund shall not be liable in any way for failure to give notice. Dated at Boise, Idaho on August 17, 2011 Marcy Pauls Underwriting Department 208/332-2313 1215 W. STATE STREET • P.O. Box 83720 • BOISE, IDAHO 83720-0044 PHONE (208) 332-2100 • (800) 334-2370 • www.IDAHOSIF.org ---PAGE BREAK--- FIRST AMENDED PROFESSIONAL SERVICE CONTRACT AGREEMENT BETWEEN THE CITY OF MOSCOW, IDAHO AND TERRAGRAPHICS ENVIRONMENTAL ENGINEERING, INC. PROVIDING CONSULTING SERVICES IN SUPPORT OF THE GREATER MOSCOW AREA COALITION EPA BROWN FIELD ASSESSMENT GRANT This First Amended Agreement is made and entered into between the City of Moscow, Idaho (hereinafter ''CITY''), and TERRAGRAPHICS ENVIRONMENTAL ENGINEERING, INC. (hereinafter "CONSULT ANT''). I . The following paragraph, ARTICLE II, DURATION OF AGREEMENT, 2. 1 , Term of Agreement, extends the te1m of the original AGREEMENT executed on 81h day of August, 201 1, until September 30, 201 3, as follows: ARTICLE II DURATION OF AGREEMENT 2. 1 Tenn of Agreement. This Agreement shall be effective on August l , 2012. Unless otherwise terminated, this Agreement shall be effective for issuing new Task Orders and it shall be effective until completion of the Scope of Services with CONSULTANT, through September 30, 2013, whichever comes first. Active Task Orders which are not complete at the time that the Agreement tenninates, shall continue or shall be amended as required, so such Task Order(s) may be completed. 2. All other tetms and conditions of the original Agreement remain the same. IN WITNESS WHEREOF, this Agreement is executed by CITY, acting by and through its Mayor, and by CONSULTANT. Dated this 1 1'JN-. day of ___£41fcV1 A , 201 2. CITY OF MOSCOW, IDAHO By
Dan Carscallen, Acting f\1a or First Amended Professional Services Contract - Brownfield Grant ---PAGE BREAK--- CONSULTANT - TERRAGRAPHICS ENVIRONMENTAL ENGINEERING, INC. CITY ACKNOWLEDGMENT STATE OF IDAHO ) ) ss. COUNTY OF LATAH ) On this day of . 2012, before me, a Notary Public in and for said State, appeared , known to me to be the person named above and acknowledged that he/she executed the foregoing document as the duly authorized representative for . Notary Public for the State of Idaho Residing My commission expires _ _ _ _ _ _ _ CONSULTANT ACKNOWLEDGMENT STATE OF IDAHO ) ) ss. COUNTY OF LATAH ) On this 9 day of US'SIt'l. Notary Public JQr the · e of lqal}P/7 ? Residing a . UJ(, #J iA.J My exp1res 3 7\}-i 5 First Amended Professional Services Contract - Brownfield Grant Page 2 of 2