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HomeMy WebLinkAboutRexburg-Keller, Professional Services Agmt, 2025-08-14225091 AGREEMENT v3.8.2024 Page 1 of 3 AGREEMENT FOR PROFESSIONAL SERVICES This Agreement between the City of Rexburg ("Owner", “City”) and Keller Associates, Inc. (“Consultant”, “Keller”) is effective as of the date of the last signature to the Agreement (Effective Date). WHEREAS, from time-to-time Owner may request that Consultant provide professional services for specific projects. Each engagement will be documented by a Task Order. This agreement sets forth the general terms and conditions which shall apply to all Task Orders duly executed under this Agreement. Each Task Order will indicate the specific services to be performed and deliverables to be provided. COMPENSATION: Basic Services. As compensation for services to be performed by Consultant, Consultant may be compensated for its services either on a time-and-materials or lump sum basis as mutually agreed upon and as specified in each Task Order. If a Task Order is to be performed on a time-and-materials basis, Consultant shall be reimbursed for all hours worked and other costs incurred at the rates and terms set forth in its current fee schedule, updated semi- annually in January and July. Additional Services. Compensation for performing Additional Services will be pursuant to a mutually agreed upon amendment to the Task Order. In Witness Whereof, the parties hereto have executed this Agreement as of the date of the last signature below. The Terms and Conditions attached are included and incorporated in this agreement by this reference. Owner and Consultant further acknowledge that they have reviewed and accepted the attached Terms and Conditions. OWNER: CITY OF REXBURG, IDAHO CONSULTANT: KELLER ASSOCIATES, INC. Signature: Signature: Name: Jerry Merrill Name: Nathan Cleaver Title: Mayor Title: Principal Address: 35 N 1st East Rexburg, Idaho 83440 Address: 305 N 3rd Ave., Ste A Pocatello, ID 83201 Telephone: (208) 359-3020 Telephone: (208) 238-2146 Date: Date: Attest: Title: 225091 AGREEMENT v3.8.2024 Page 2 of 3 TERMS AND CONDITIONS 1. CONTRACT – This document constitutes the full and complete Agreement between the parties and supersedes all prior negotiations, representations or agreements, whether written or oral. The Agreement may be amended only if both parties specifically agree in writing to such amendment of the Agreement. 2. INVOICES AND PAYMENT – Owner will make payment within 30 calendar days of the invoice date. Consultant shall keep accurate records of expenses. If Owner contests an invoice, Owner shall advise the Consultant within 15 days of receipt of invoice of the specific basis for doing so, may withhold only that portion so contested, and shall pay the undisputed portion. Interest. If payment is not received by the Consultant within 45 calendar days of the invoice date, Owner shall pay interest at a rate of 1½% per month (or the maximum allowable by law, whichever is lower) of the past due amount. Payments will be credited first to interest and then to principal. Suspension. If the Owner fails to make payments when due, the Consultant may suspend performance of services upon five (5) calendar days’ notice to the Owner. Owner agrees to indemnify and hold Consultant harmless from any claim or liability resulting from such suspension. 3. DOCUMENTS – All documents prepared or furnished by Consultant are instruments of service, and Consultant retains ownership and property interest (including the copyright and the right of reuse) in such documents. Owner shall have a limited license to use the documents in and for the Project subject to full payment for all services relating to preparation of the documents. The Owner agrees to obtain prior written agreement for any reuse or modifications of the instruments of service, and understands that any unauthorized use of the instruments of service shall be at the Owner’s sole risk and without liability to the Consultant. 4. STANDARD OF CARE – The standard of care for all professional engineering and related services performed or furnished by the Consultant under this Agreement will be the care and skill ordinarily used by members of the subject profession practicing under similar circumstances at the same time and in the same locality. The Consultant makes no warranties, expressed or implied, under this Agreement or otherwise, in connection with the Consultant’s services. Consultant shall exercise usual and customary professional care in its efforts to comply with applicable codes, regulations, laws, rules, ordinances, and such other requirements in effect as of the date of execution of this Agreement. 5. ACCEPTANCE OF WORK – Pursuant to the scope of services described in each Task Order, Consultant shall perform the services which will be subject to the Owner’s review and approval, which will not be unreasonably withheld. The Consultant shall make Owner’s requested revisions to the services and/or deliverables (consistent with the scope of work), correcting any negligent errors or omissions within the deliverables without additional compensation to the Consultant. Consultant will be compensated for additional services for Owner-requested out of scope items and for rework triggered by Owner-requested changes to previously agreed upon design criteria and concepts. 6. CHANGES OR DELAYS – The proposed scope of services, compensation, schedule, and allocation of risks reflect Consultant’s understanding of the Project at the date of this Agreement and respective Task Orders. Costs and schedule commitments shall be subject to renegotiation for changed conditions, unreasonable delays caused by the Owner’s failure, independent government agencies, Force Majeure events (i.e. acts of God, riots, wars, sabotage, strikes, civil disturbances, pandemics, government declared emergencies, etc.), or causes beyond the reasonable control of Consultant. Where this occurs, changes in the Agreement and task orders shall be negotiated and an equitable adjustment in compensation and schedule shall be made. 7. TERMINATION OR REDUCTION OF SERVICES – The Owner and Consultant may terminate this Agreement in whole or in part at any time by giving 30 days written notice thereof. The Owner shall promptly pay Consultant for all services rendered to the effective date of suspension of services, plus suspension charges, which shall include the cost of assembling documents, personnel and equipment, rescheduling or reassignment, and commitments made to others on the Owner’s behalf. If Owner elects to terminate, modify, or reduce any portion of Consultant’s services under this Agreement, Owner shall indemnify Consultant from any damages related to the services or activities Consultant did not provide. 8. SUSPENSION OF SERVICES – If the Owner suspends services of the Consultant for any reason for more than thirty days, the Consultant shall be reimbursed for expenses incurred due to suspension of services, including costs associated with rescheduling or reassigning personnel, and commitments made to others on Owner’s behalf. 9. INDEMNITY AND LIMITATION OF LIABILITY – Owner and Consultant each agree to indemnify and hold the other (including their respective officers, directors, employees, agents, owners, shareholders, members, partners, sub-consultants, subcontractors, and representatives) harmless from and against liability for all claims, losses, damages and expenses, to the extent such claims, losses, damages, or expenses are caused by the indemnifying party’s negligent acts, errors or omissions. In the event claims, losses, damages, or expenses are caused by the joint or concurrent negligence of Owner and Consultant, they shall be borne by each party in proportion to its negligence. Neither the Owner nor Consultant shall be liable for incidental, indirect or consequential damages. The Consultant’s liability to the Owner and to all construction contractors and subcontractors on the Project, due to the Consultant’s negligent acts, errors omissions, or breach of contractual obligations relating to or arising out of the Project shall not exceed the Consultant’s total fee of the respective Task Order. 225091 AGREEMENT v3.8.2024 Page 3 of 3 10. OPINIONS OF COST – Consultant’s opinions of probable cost represent Consultant’s judgment as an experienced and qualified design professional. Since Consultant has no control over the cost of labor, materials, equipment, or services furnished by others, or over the Owner’s and other contractor’s methods of determining prices, or over competitive bidding or market conditions, the Consultant cannot and does not guarantee that proposals, bids, or actual construction cost will not vary from opinions of probable cost prepared by the Consultant. 11. CONSTRUCTION PHASE SERVICES – If Consultant performs any services during the construction phase of the Project, Consultant shall not supervise, direct, or have control over Owner’s contractor’s work. Consultant shall not have authority over or responsibility for the construction means, methods, techniques, sequences or procedures or for safety precautions and programs in connection with the work of the contractor. Consultant does not guarantee the performance of the construction contract by the contractor and does not assume responsibility for the contractor’s failure to furnish and perform its work in accordance with the Contract Documents. Consultant will not direct or alter payment methodology between Owner and Contractor. Owner agrees to indemnify and hold harmless Consultant from any liability for fraudulent electronic transfers. If the Owner decides not to include construction phase services (such as submittal reviews, responses to requests for information, project coordination meetings, and full-time construction observation) in the Task Order, the Owner acknowledges the decision may increase the risk of errors, omissions, and failure to realize the design intent during the construction phase. The Owner assumes responsibility for such risks and agrees to indemnify and hold the design Consultant harmless from claims, damages, or costs arising from such risks. 12. MISCELLANEOUS Right of Entry: Unless otherwise noted in the scope of work, the Owner shall provide for Consultant’s right to enter the property owned by the Owner and others in order to fulfill the services to be performed hereunder. Dispute Resolution: Owner or its Contractor agree to notify Consultant of any claims against the Consultant within 10 days of discovery of any allegations, errors or omissions. Should a dispute arise, Owner and Consultant agree to negotiate disputes between them in good faith for a period of 30 calendar days from the date the dispute is raised in writing by either the Owner or Consultant. If the parties fail to resolve the dispute through negotiation, then the dispute shall be decided through non-binding mediation or other mutually agreed alternative dispute resolution technique. Fees and expenses for mediation shall be split equally between the parties. The Owner and Consultant agree non-binding mediation or other mutually acceptable dispute resolution technique shall precede litigation. This Agreement shall be governed by the laws of the State where the Project is located. Hazardous Environmental Conditions: The scope of Consultant’s services does not include any responsibility for detection, remediation, accidental release, or services relating to waste, oil, asbestos, lead or other hazardous materials, as defined by Federal, State, and local laws or regulations. Consultant is not required to be become an arranger, operator, generator, or transporter of hazardous substances, and shall have no responsibility for the discovery, handling, removal, disposal or exposure of persons to hazardous substances of any form. Subsurface Investigations: In soils, foundation, groundwater, and other subsurface investigations, the actual characteristics may vary significantly between successive test points and sample intervals and at locations other than where observations, exploration, and investigations have been made. Because of the inherent uncertainties in subsurface evaluations, changed or unanticipated underground conditions may occur that could affect total project cost and/or execution. These conditions and cost/execution effects are not the responsibility of Consultant. Consultant Reliance: Owner shall make available to Consultant all relevant information pertinent to the Project. Consultant shall be entitled to rely, without liability or the need for independent verification, on the accuracy and completeness of any and all information provided by Owner, Owner’s consultants and contractors, information from public records, and information ordinarily or customarily furnished by others, including, but not limited to specialty contractors, manufacturers, suppliers, and publishers of technical standards. Certifications: Consultant shall not be required to sign any documents that result in Consultant having to certify, warrant, or guarantee the existence of conditions whose existence Consultant cannot ascertain within its services for the Project. Third Parties: Nothing contained in this Agreement shall create a contractual relationship with, or a cause of action in favor of, a third party against either the Owner or Consultant. Consultant’s services hereunder are being performed solely for the benefit of the Owner, and no other entity shall have any claim against Consultant because of this Agreement or Consultant’s performance of services hereunder. Severability and Waiver: In the event any of these contract provisions are found to be illegal or otherwise unenforceable, the unenforceable contract provisions will be stricken, and those remaining contract provisions shall continue in full force and effect. The failure of either party of this Agreement to insist, in any one or more instances, upon the performance of any of the terms, covenants or conditions of this Agreement, shall not be construed as a waiver of such term, covenant or right. Joint Drafting: The Parties expressly agree that this Agreement was jointly drafted, and that they both had opportunity to negotiate its terms and to obtain the assistance of counsel in reviewing its terms prior to execution. Therefore, this Agreement shall be construed neither against nor in favor of either Party, but shall be construed in a neutral manner.