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PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF MOSCOW, IDAHO AND WELCH COMER AND ASSOCIATES INC. FOR CONSULTING SERVICES (MOSCOW BEAUTIFICATION PROJECT) This Professional Services Agreement (hereinafter "Agreement") is made and entered into between the City of Moscow, Idaho, a municipal corporation of the State of Idaho, 206 East Third Street, Moscow, Idaho, 83843 (hereinafter "CITY"), and Welch Comer and Associates Inc., a Corporation of the State of Idaho, 350 E. Kathleen Ave., Coeur d'Alene, Idaho, 83815, (hereinafter "CONSUL TANT"), to provide landscape architect and civil engineering consulting services to CITY on the Moscow Beautification Project (hereinafter "Project"). WITNESSETH: WHEREAS, CITY wishes to retain the services of a professional firm to provide landscape architectural and civil engineering design services (hereinafter "Professional Services"), to CITY on an as-needed, hourly and/or task-order basis; and WHEREAS, CONSUL TANT represents that it has the expertise, experience and personnel necessary to provide the Professional Services on an as-needed, hourly and/or task-order fee basis; and WHEREAS, CITY and CONSULTANT (together, the Parties) wish to enter into an Agreement whereby CITY will retain CONSUL TANT to provide the Professional Services for the Moscow Beautification Project on an as-needed, hourly and/or task-order fee basis. NOW, THEREFORE, be it agreed, for and in consideration of the mutual covenants and promises between the parties hereto, as follows: ARTICLE I CONSULTANT SERVICES The above-listed recitals are true and correct and are hereby incorporated by reference. 1.1 Scope of Services. CONSUL TANT shall perform the Professional Services as set forth in the Request for Proposals City Entry Beautification Project, which is incorporated herein by reference. Professional Services will be determined by CITY on an as-needed basis and presented to CONSULT ANT as individual tasks. CONSULT ANT shall perform each task at the direction of CITY and as more specifically described in each Task Order Authorization. Task Orders shall be prepared on a form similar to the example provided as Exhibit to this Agreement. PROFESSIONAL SERVICES - CONSULTING; CITY ENTRY BEAUTIFICATION PROJECT PAGE 1OF8 ---PAGE BREAK--- 1.1.1 Task Order. Prior to beginning performance in response to a Task Order, CONSUL TANT 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. 1.2 Unique Professional Services. It is understood that this Agreement is for unique Professional Services. CONSULT ANT 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 CONSULT ANT'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 CONSULT ANT Contact. CONSULT ANT shall provide the Professional Services under the direction of a representative of CITY, designated by the CITY Supervisor (Designated Representative). CITY's Designated Representative shall communicate with CONSULT ANT on all matters related to the administration of this Agreement and CONSUL TANT'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 performed by CITY Supervisor or designee, unless the Agreement specifies otherwise. Dell Hatch 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 CONSUL TANT' 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 CONSUL TANT, 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 CONSUL TANT's cost of, or the time required for, the performance of any of the Professional Services, CONSULTANT shall immediately notify CITY. 1.5 Written Authorization. Throughout the term of this Agreement, CONSUL TANT 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 CONSUL TANT from its duty to render all Professional Services in accordance with applicable laws and accepted industry standards. PROFESSIONAL SERVICES - CITY ENTRY BEAUTIFICATION PROJECT PAGE2 OF 8 ---PAGE BREAK--- 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. 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 Time of Essence. Time is of the essence 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 writing if CONSUL TANT 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 CONSUL TANT to a reasonable extension of time, but such delay shall not entitle CONSUL TANT to damages or additional compensation. Any such extension of time must be approved in writing by CITY. CONSULT ANT shall not be entitled to an extension of time for a delay caused by the acts or omissions of CONSUL TANT. 2.5 CITY's Right to Terminate for Convenience. CITY may, at its sole option and for its convenience, terminate all or any portion of the Professional Services agreed to pursuant to this Agreement by giving written notice of such termination to CONSULTANT. After termination of this Agreement, CONSUL TANT shall complete any and all additional work necessary for the orderly filing of documents and closing of CONSUL TANT'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 CONSULT ANT before the effective date of termination. After filing of documents and completion of performance, CONSUL TANT shall deliver to CITY all reports, letters, calculations, and other documents or records related to CONSUL TANT's Professional Services on all Tasks. By accepting payment for completion, filing and delivering documents as called for in this paragraph, CONSUL TANT discharges CITY of all of CITY's payment obligations and liabilities under this Agreement. 2.6 CITY's Right to Terminate for Default. If CONSUL TANT fails to perform or adequately perform any obligation required by this Agreement, CONSUL TANT's failure constitutes a default. A default includes CONSUL TANT's failure to complete the Professional Services within the time for completion as set forth in the Task Order. If CONSUL TANT fails to PROFESSIONAL SERVICES - CONSULTING; CITY ENTRY BEAUTIFICATION PROJECT PAGE3 OF 8 ---PAGE BREAK--- satisfactorily cure a default within ten (10) calendar days ofreceiving written notice from CITY specifying the nature of the default, CITY may immediately cancel and/or terminate 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 CONSULT ANT. ARTICLE III COMPENSATION 3.1 Amount of Compensation. CITY shall pay CONSULTANT on an hourly basis in accordance with the Hourly Rate Sheet, attached as Exhibit and incorporated herein by reference, with an established not-to-exceed cost for each individual assignment, a lump sum fee or an agreed 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 commence 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. CONSUL TANT 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 thirty (30) calendar days of receipt. 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 of Idaho. Where approval by CITY is required, it is understood to be general approval only and does not relieve CONSUL TANT 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, CONSULT ANT shall comply immediately with all directives issued by CITY or its authorized representatives under authority of any laws, statutes, ordinances, rules, or regulations. PROFESSIONAL SERVICES - CONSULTING; CITY ENTRY BEAUTIFICATION PROJECT PAGE40F 8 ---PAGE BREAK--- 4.3 CONSULTANT's Errors and Omissions Insurance. In performance of professional services, CONSUL TANT will use that degree of care and skill ordinarily exercised under similar circumstances by members of the consulting profession; and no other warranty, either expressed or implied, is made in connection with rendering CONSULTANT's services. Should CONSULTANT or any of CONSULTANT's agents or employees be found to have been negligent in the performance of professional services from which CITY sustains damage, CONSULTANT has obtained Errors and Omissions Insurance in the amount of One Million Dollars ($1,000,000), and said insurance shall be held active for a two year (minimum) period from the date of completion of the PROJECT. CITY shall receive notice of any pending termination of said insurance within five days of first notice to CONSUL TANT. 4.3.1 CONSULTANT's Additional Insurance. CONSULTANT shall maintain automobile insurance and statutory workers' compensation insurance coverage, employer's liability, and comprehensive general liability insurance coverage. The comprehensive general liability insurance shall have a minimum limit of Five Hundred Thousand Dollars ($500,000) per claim and One Million Dollars ($1,000,000) aggregate, and CONSUL TANT shall cause CITY to be named as an additional insured under said policy. 4.4 Conflict oflnterest. CONSULTANT covenants that it presently has no interest and will not acquire any interest, direct or indirect, in the PROJECT which would conflict in any manner or degree with the performance of services hereunder. CONS ULT ANT further covenants that, in performing this Agreement, it will employ no person who has any such interest. ARTICLEV CITY'S OBLIGATIONS 5 .1 Ownership of Documents. Once the CONSULT ANT(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 models, shall become the sole property 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 CONSUL TANT'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, CONSUL TANT shall have the right to make copies of all such maps, models, designs, photographs, surveys, reports, notes, letters, profiles, original plans, studies, sketches, drawings, computer printouts and disk files, specifications, and other documents. PROFESSIONAL SERVICES - CONSULTING; CITY ENTRY BEAUTIFICATION PROJECT PAGE 5 OF 8 ---PAGE BREAK--- ARTICLE VI INDEMNIFICATION 6.1 Indemnification. In regard to CONSULTANT's Additional Insurance, paragraph 4.3.1., CONSULTANT shall indemnify, defend and hold harmless CITY and its officers, directors, employees and agents against any claim by any third party for injury to any person or damage to or loss of any property from any act, omission or negligence of CONSULTANT or any of CONSULTANT' employees or agents. CONSULTANT obligations under this Section shall survive the completion or termination of this Agreement. 6.1.1 CITY shall indemnify, defend and hold harmless CONSULTANT and its officers, directors, employees and agents against any claim by any third party for injury to any person or damage to or loss of any property from any act, omission, or negligence of CITY or any CITY employees or agents. CITY obligations under this Section shall survive the completion or termination of this Agreement. ARTICLE VII MISCELLANEOUS 7.1 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: Community Development Director 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 CONSUL TANT shall be addressed to: Dell Hatch, Project Manager Welch Comer and Associates Inc. 350 E. Kathleen Ave. Coeur d'Alene, ID 83815 PROFESSIONAL SERVICES - CONSULTING; CITY ENTRY BEAUTIFICATION PROJECT PAGE6 OF 8 ---PAGE BREAK--- 7.2 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 .3 Amendments to Agreement. This Agreement may be amended only by written instrument signed by both parties hereto. 7.4 Jurisdiction and Venue It 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. 7.5 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. 7.6 Severability. The unenforceability, invalidity, or illegality of any prov1s1on of this Agreement shall not render any other provision of this Agreement unenforceable, invalid, or illegal. IN WITNESS WHEREOF, this Agreement is executed by CITY, acting by and through its Mayor and City Council, and by CONSULTANT. Dated this ~ day of ~ vtJ7f' , 2013. CONSULTANT CITY OF MOSCOW, IDAHO PROFESSIONAL SERVICES - CONSULTING; CITY ENTRY BEAUTIFICATION PROJECT PAGE 7 OF 8 ---PAGE BREAK--- ACKNOWLEDGMENT STA TE OF ~l~d~ Cl.h ) ) SS. COUNTY OF t)odf ru L ) On this 20th day .orSepit;m , 2013, before me, a Notary Public in and for said State, appeared }hU ~d , known to me to be the person named above and acknowledged that he/she executed the foregoing document as the duly authorized representative for ¥Wr.b Conw ~tne4's Pw.n:if;; hfJ_aA~ . EVAMELIMA SWEAIUNIEN Nalary Pubtlc State of Idaho PROFESSIONAL SERVICES - CONSULTING; CITY ENTRY BEAUTIFICATION PROJECT N•yPdU,x~ofldah~ Residing at lDruYd;...tteng, 1 D My commission expires '1117 /J (p ' PAGE 8 OF 8 ---PAGE BREAK--- ATTACHMENT A Billing Rates Billing Classification Billing Rate Principal Enoineer $ 165.00 Principal Enoineer $ 150.00 Sr. Proiect Manaaer $ 130.00 Proiect Manager $ 125.00 Sr. Landscape Architect $ 160.00 Enqineer IV $ 120.00 EnQineer Ill $ 105.00 Enoineer II $ 105.00 Enaineer I $ 90.00 Engineer Assistant $ 60.00 Sr. Engr Tech II $ 90.00 Sr. Enqr Tech I $ 85.00 Professional Land Survevor II $ 140.00 Professional Land Survevor I $ 125.00 Crew Chief I $ 95.00 Crew Chief II $ 100.00 Crew Member $ 80.00 Survey Technician II $ 100.00 Survey Technician I $ 95.00 Cad Technician Ill $ 85.00 Cad Technician II $ 80.00 . Cad Technician I $ 70.00 Sr. Project Administrator $ 75.00 Project Administrator $ 65.00 Sr. Administrative Assistant $ 55.00 Administrative Assistant $ 45.00 No Charge Services $ - ---PAGE BREAK--- EXHIBIT SAMPLE CITY TASK ORDER This Task Order, entered into this day of , 20 , between the City of Moscow, Idaho (hereinafter referred to as "CITY")and Company name (hereinafter referred to as the "CONSULTANT"), is subject to the provisions of the Professional Services Agreement, dated Month Day, Year (hereinafter referred to as the "Agreement"). WITNESSETH: WHEREAS, CITY intends to hereinafter referred to as the Project; NOW, THEREFORE, CITY and CONSULTANT) in consideration of their mutual covenants herein agree in respect as set forth below. Client Information And Responsibilities: The CITY will provide CONSULTANT the data and/or services as specified in the Agreement. In addition, the CITY will furnish to CONSULTANT Services to be Performed by CONSUL TANT: CONSULTANT will Schedule of Services to be Performed: CONSULTANT will perform said services within calendar days of the date of this Task Order. Basis Of Fee And Billing Schedule: The CITY will pay CONSULTANT 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 WHEREOF, 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: Consultant I hereby acknowledge receipt and acceptance of this Task Order for: Approved by (Signature): Print Name: Title: Date: