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PROFESSIONAL SERVICES AGREEMENT FOR THE SOUTH FORK PALOUSE RIVER FEMA MODEL ASSESSMENT BETWEEN CITY OF MOSCOW, IDAHO AND TERRAGRAPHICS THIS PROFESSIONAL SERVICES AGREEMENT FOR THE SOUTH FORK PALOUSE RIVER FEMA MODEL ASSESSMENT (hereinafter "AGREEMENT") is entered into as of the day of A p 6 \ , 2009 between the City of Moscow, Idaho, a municipal corporation of the State of Idaho, 206 East Third Street, Moscow, Idaho, 83843 (hereinafter "CITY"), and TerraGraphics Environmental Engineering, Inc., an Idaho corporation, 121 S. Jackson, Moscow, Idaho, 83843 (hereinafter "CONSULTANT"). W I T N E S S E T H: WHEREAS, CITY has reason to believe that the current designatĶd 1 00-year event floodplain boundary for the South Fork of the Palouse River within, and adjacent to, the CITY may not reflect the true 1 00-year event floodplain boundary; and WHEREAS, CITY wishes to retain a competent professional consultant who can assess the accuracy of the current FEMA hydraulic model on the South Fork of the Palouse River; and WHEREAS, CONSULT ANT has the demonstrated skills and expertise to assist CITY in this effort; NOW, THEREFORE, in consideration of the foregoing, of the mutual promises of the parties hereto and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, hereby agree as follows: A. SCOPE OF WORK: SECTION I CONSULTANT staff shall: Provide an assessment of the current FEMA hydraulic model on the South Fork of the Palouse River (hereinafter "Project"). The study area shall include that portion of the South Fork of the Palouse River beginning three-hundred (300) feet upstream of the current South Mountain View Road crossing and continuing west to a point one-hundred (1 00) feet of the current Highway 95 crossing. This assessment shall include compilation of the current FEMA floodplain model, updated hydrology (as determined by the Idaho Transportation Departments (lTD) hydrologic study conducted in conjunction with the South Highway 95 Bridge reconstruction project), recomputed hydraulic model, and a results memo stating outcomes of floodplain delineation changes, if any, including a plan view drawing of the study area and the PSA- CITY AND TERRAGRAPHICS PAGE 1 OF6 2J::x)q. 1'6 ---PAGE BREAK--- recomputed floodplain boundaries. CITY shall provide CONSULT ANT a copy of the lTD study for the purposes of this study. B. DELIVERABLES: CONSULTANT's proposed time frame for accomplishing the tasks described in Section LA, Scope Of Work, will depend on the availability of model data from FEMA and the lTD study from CITY. Upon receipt of this data and STUDY, CONSULTANT shall complete the PROJECT within a three week period. C. PAYMENT SCHEDULE: The total cost for the services outlined in the Scope Of Work described in Section LA. of this AGREEMENT, is a not to exceed amount of two thousand seven hundred sixty dollars ($2,760) and includes all costs incurred by CONSULTANT in completing such Scope Of Work. SECTION II GENERAL PROVISIONS A. Insurance: CONSULT ANT shall have General Liability insurance covering errors and omissions with coverage of One Million Dollars ,000,000) combined single limit per occurrence and not less than Two Million Dollars ($2,000,000) in the aggregate. B. Duration and Termination, or Default: CITY and CONSULTANT shall each have the right to terminate this Agreement upon the occurrence of any "Event of Default" by the other party upon written notice to the defaulting party specifying the nature of such default. An Event of Default shall be defined as the occurrence of any one or more of the following: 1. Either party shall file a voluntary petition in bankruptcy, or shall be adjudicated bankrupt or insolvent or shall file any petition or answer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute or law relating to bankruptcy, insolvency, or other relief from debts, whether federal or state, or shall seek, consent to, or acquiesce in the appointment of any trustee, receiver, conservator or liquidator of either party or of all or any substantial part of its properties; 2. Either party fails to perform any of its services in the manner or within the time required herein or commits or permits a breach of or default in any of its duties, liabilities or obligations hereunder and fails to fully cure or remedy such failure, breach or default within thirty (30) days after written notice specifying the nature of such failure, breach or default by either party to the other, or if such failure, breach or default cannot reasonably be cured within thirty (30) days, fails to commence such cure or remedy within said thirty (30) day period or at any time thereafter fails to diligently prosecute such cure or remedy to completion; PSA- CITY AND TERRA GRAPHICS PAGE20F6 ---PAGE BREAK--- 3. If either party breaches applicable law with respect to performance of any aspect of its obligations under this Agreement or acts in any other way that the other party hereto reasonably believes is incompatible with the completion of the Project in a timely manner, consistent with the approved budget, and consistent with all applicable governmental and funding and financing laws and requirements. C. Upon the occurrence of any one of the Events of Default specified in Section II. the non defaulting party shall have the immediate right to terminate this Agreement. If either party elects to terminate this Agreement, it shall provide written notice of termination to the defaulting party and this Agreement immediately shall terminate. If a party elects to terminate this Agreement, all parties hereto shall be entitled to compensation relative to the work performed to the date of termination. In no event shall the compensation payable in the event of termination exceed the amount of compensation specified in this Agreement. D. The Parties Remedies Cumulative: Remedies of the parties under this Agreement shall be in addition to all other remedies the Parties may have at law or in equity. E. Jurisdiction and Venue: Each party shall bring any action against the other in connection with this Agreement in a federal or state court located in the Second Judicial District of the State of Idaho, consents to the jurisdiction of such courts, and waives any right to have any proceeding transferred from such courts on the grounds of improper venue or inconvenient forum. F. Mediation/ Arbitration: Prior to commencing any legal action the parties agree to mediate the disputes. A third party mediator shall be selected and approved by both parties. In the event CONSULTANT and CITY cannot agree upon a mediator, or should the mediation be unsuccessful, such dispute shall, prior to commencing any legal action be submitted to arbitration through the American Arbitration Society. Costs of mediation/arbitration will be shared equally between CONSULTANT and CITY. G. Indemnification: Both parties shall indemnify, defend, and hold each other, their affiliated companies, if any, and each of their respective agents, successors, assigns, and any and all officers, directors, shareholders, employees or representatives of any of the foregoing ("Indemnified Parties"), harmless from and against any and all causes of action, loss, claim, liability, penalty, fine, cost (including also reasonable attorneys fees) or expense, claimed by third parties for property damage and/or personal injury, including death ("Damages"), to the extent such Damages are caused by the negligent act, error or omission or willful misconduct of the other party, its agents, employees or affiliates in connection with the services. H. Notices: All notices or other written communications required or permitted hereunder shall be in writing and shall be deemed received upon receipted delivery if sent by personal messenger, three business days after being deposited in the U.S. Mail, registered or certified, return receipt requested, one Business Day after being deposited with a nationally recognized overnight courier service, or upon confirmation of transmission if PSA- CITY AND TERRA GRAPHICS PAGE3 OF6 ---PAGE BREAK--- sent by facsimile, in each case with postage/delivery prepaid or billed to the sender and addressed as follows: City of Moscow Bill Belknap Community Development Director City of Moscow P 0 Box 9203 Moscow, ID 83843 Telephone: (208) 883-7011 Facsimile: (208) 883-7033 TerraGraphics Susan Firor, P.E. 121 S. Jackson Moscow, ID 83843 Telephone: (208) 882-7858 Facsimile: (208) 883-3785 I. Independent Contractor: CONSULTANT shall be an independent contractor and not an employee or agent of CITY. J. Owner of Information and Materials: CONSULTANT shall, upon completion or any sooner termination of this Agreement, and upon payment of all fees then due CONSULTANT, deliver to CITY all written data and information generated by or for CONSULTANT in connection with the Project or supplied to CONSULTANT by CITY or its agents, and drawings, plans, books, records, contracts, agreements and all other documents and writings in its possession relating to its services hereunder or the Project, and CITY shall have the right to use the same without further compensation to CONSULT ANT. Such data and information and all such documents shall at all times be the property of CITY. CONSULTANT may make and retain copies of any document or other material or information it turns over to CONSULTANT shall retain the right to utilize such data and information without compensation to CITY. K. Authority of CONSULTANT: CONSULTANT shall have no right or authority, express or implied, to commit or otherwise obligate CITY in any manner whatsoever, except to the extent specifically provided herein or specifically authorized in writing by CITY. CONSULTANT shall have no right or interest in the Project arising out of this Agreement or the performance of its service except for any lien CONSULTANT may be entitled to by reason of its work on the Project. L. Taxes and Contributions: CONSULTANT and CITY assume full and exclusive responsibility and liability for withholding and paying, as may be required by law all federal, state and local taxes and contributions with respect to, assessed against, or measured by each party's respective earnings hereunder, or salaries or other contributions or benefits paid or made available to employees of the respective parties, and any and all other taxes and contributions applicable to each party for the respective services for which each party may be responsible under any laws or regulations, and shall make all returns and/or reports required in connection with any and all such laws, regulations, taxes, contributions and benefits. M. Burden and Benefit: The covenants and agreements contained herein shall be binding upon and inure to the benefit of the successors and assigns of the respective parties hereto. PSA- CITY AND TERRA GRAPHICS PAGE40F6 ---PAGE BREAK--- N. 0. P. Q. R. S. T. U. Neither party may assign this Agreement without the consent of the other party. No consent granted by either party shall be deemed to be consent to any subsequent assignment or transfer. Severability of Provisions: Each prov1s10n of this Agreement shall be considered severable, and if for any reason any provision that is not essential to the effectuation of the basic purposes of the Agreement is determined to be invalid and contrary to any existing or future law, such invalidity shall not impair the operation of or affect those provisions of this Agreement that are valid. No Continuing Waiver: The waiver of either party of any breach of this Agreement shall be effective only if it is in writing and s4C!-H operate or be construed to be a waiver of , - any subsequent breach. I · . ' · . 6 · ' ' . • R' . • t . . . . • v . . • : . . . . Trme of the Essence: Tlme ts oft··İssende for each pr