2-26-008 - Attachment B - Sample - MSA Agreement.pdf

Attachment B - Sample Master Services Agreement

RFQu # 26-008 Engineering (MEP-FP) Consultant for Small Projects

Walworth County Master Services Agreement

Project Number: 26-008

Services to be provided: Engineering (MEP-FP) Consultant for Small Projects

Agreement Period:

Upon Agreement execution through April 30, 2027, with the option to renew the Agreement for four (4) additional one (1) year periods under the same terms and conditions upon mutual agreement

Agreement Amount:

Indefinite quantity, services will be provided as Work Orders are requested and Purchasing Orders are issued as described herein.

County:

Organization Name: Walworth County

Address:

100 West Walworth Street Elkhorn, WI 53121

Walworth County Point of Contact: Name

Telephone: 262-741-XXXX

Cell:

E-mail: XXXX@co.walworth.wi.us

Consultant:

Organization Name: Name

Address:

Street City, State Zip

Consultant Point of Contact:

Name of person responsible for day to day activities of agreement

Telephone:

Cell:

E-mail:

mailto:laldred@co.walworth.wi.us

Custom Master Services Agreement

WALWORTH COUNTY REV. 06/21

MASTER SERVICE AGREEMENTS

Parties This Master Services Agreement (MSA) is between Walworth County whose business address is, 100 West Walworth Street, Elkhorn, WI 53121, hereinafter referred to as the County and Consultant Name whose business address is Consultant Address hereinafter referred to as Consultant.

Article 1 – Services to be Provided

This MSA sets forth the responsibilities, time and cost of services relating to the Engineering (MEP-FP) Consultant for Small Projects by Consultant.

Section 1.1 Services to be Provided The County will request Consultant to perform Engineering (MEP-FP) Consultant for Small Projects.

The County shall not be obligated to request Consultant to perform any services, and Consultant shall not be obligated to accept a request to perform services, but it is expressly understood and agreed that all services requested by the County and accepted by Consultant shall be controlled and governed by the provisions of this MSA. The term “Agreement” means this MSA, which is incorporated into subsequent purchase orders.

The County and Consultant agree that the Consultant will provide Engineering (MEP-FP) Consultant for Small Projects including, but not limited to list services to be performed under this agreement. The County may request any combination of these services through the process identified in Section 1.2, Work Order Contracts / Purchase Orders.

Services shall be provided in accordance with Walworth County’s Request for Qualifications for Engineering (MEP-FP) Consultant for Small Projects and the Statement of Qualifications submitted by the Consultant, which are attached as the following exhibits and made a part of this Agreement.

Exhibit A – Walworth County Request for Statement of Qualifications for Engineering (MEP-FP) Consultant for Small Projects

Exhibit B – Statement of Qualifications from Consultant Name Exhibit C – Fee Rate Structure

Section 1.2 Work Order Contracts / Purchase Orders The County will request services through a Work Request, which the County may initiate verbally, or submit to Consultant as a written Work Request. Consultant shall respond to the request for services within an amount of time specified by the County by providing the County with a written Work Order to include the services discussed or specified. The Work Order shall include all costs including subcontracted services and Reimbursable Expenses. The County shall initiate the acceptance of the Work Order by issuing a purchase order for services. Each such purchase order shall be deemed a two-party agreement between the County and Consultant and shall be deemed incorporate and shall be subject to all the terms and conditions of this Agreement. When issued, such purchase orders are binding.

Article 2 – Term

This Agreement is to be effective upon Agreement execution through April 30, 2027, with the option to renew the Agreement for four (4) additional one (1) year periods under the same terms and conditions upon mutual agreement.

Article 3 – Performance

Section 3.1 Regulations The Consultant agrees to comply with all the requirements of all applicable federal, state and local laws.

Section 3.2 Inability to Provide Services The Consultant shall notify the County immediately in writing and deliver in person or by registered mail whenever it is unable to provide the services agreed to in the Agreement. Upon such notification, the County and Consultant shall determine whether such inability will require a revision or termination of this Agreement. (See Article 15 “Revision or Termination of this Contract.”)

Section 3.3 Remedies In the event the Consultant fails to provide contracted services or creates negligent errors, which results in the County being obliged to perform the required services, the County will be reimbursed the total direct cost of the County employees’ wages including benefits and all other costs directly incurred by the County for corrective actions taken.

Section 3.4 Documentation of Quality of the Services Provided The Consultant shall retain all documentation necessary to demonstrate the time, cost, duration, location, scope, quality and effectiveness of services rendered under the Agreement. The County reserves the right to not pay for services reported by the Consultant that do not meet the provisions of this Agreement.

Section 3.5 Standards for Performance in Delivery of Services The County will monitor the Consultant’s performance and will use the results of this monitoring to evaluate the Consultant’s ability to provide adequate services to the County. If the Consultant fails to meet contract goals and expected results, the County may reduce or terminate the Agreement immediately.

Section 3.6 Force Majeure Neither party shall be in default by reason of any failure in the performance of this Agreement in accordance with reasonable control and without fault or negligence on their part. Such causes may include, but are not restricted to, acts of nature or the public enemy, acts of the government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes and unusually severe weather, but in every case the failure to perform such must be beyond the reasonable control and without the fault or negligence of the party.

Article 4 – Payment and Allowable Costs

Section 4.1 Amount Paid Under Contract For services rendered, the County shall pay the Consultant as mutually agreed upon pursuant to the purchase order and Exhibit A. Actual total payment will be based upon the services authorized by the County and the amount of services performed by the Consultant. It is understood and agreed by all parties that the County assumes no obligation to purchase from the Consultant any minimum amount of services as defined in the terms of this Agreement.

Section 4.2. Invoicing and Payment The Consultant will invoice the County monthly based upon the services actually completed by the Consultant at the time of billing, pursuant to Exhibits A or A and C. All invoices are to be mailed to Walworth County Finance Department – Accounts Payable Division, 100 West Walworth Street, Elkhorn, WI 53121 or emailed to apsupport@co.walworth.wi.us. Unless otherwise agreed, Walworth County will pay properly submitted vendor invoices within forty five (45) days of receipt of services.

Payment will not be made until services are accepted as specified. Invoices presented for payment must be submitted in accordance with instructions contained on the purchase order, if applicable.

Walworth County’s preference is to pay for services on procurement card (P-card). However, if P-card is unacceptable, payment will be made in accordance with the above.

Section 4.3 Reimbursement of Expenses The County is not liable to the Consultant for any expenses paid or incurred by the Consultant unless provided for in the project’s Work Order and agreed to by the County. “Reimbursable Expenses” means the actual, necessary and reasonable expenses incurred directly or indirectly in connection with a project for: travel expenses including transportation, meals, and lodging, reproduction of reports, drawings and specifications, and similar project-related items.

Section 4.4 Taxes The Consultant understands that they are responsible for all applicable taxes. Neither federal, nor state, nor local income tax nor payroll tax of any kind shall be withheld or paid by the County on behalf of the Consultant or any employees of the Consultant. The Consultant shall provide the Walworth County Department of Finance with a federal employer identification or social security number to allow for proper reporting to federal tax authorities.

Section 4.5 Payment in Excess of Earned Amount The Consultant shall return to the County any funds paid in excess of the amount earned under this Agreement within 90 days of the end of the Agreement period. If the Consultant fails to return funds paid in excess of the amount earned, the County may recover the excess payment from subsequent payments made to the Consultant or through other collection means.

Section 4.6 Annual Fee Adjustments Fee Rates shall remain firm for the initial Agreement term. Fee Rate increases shall only be considered at the time optional agreement renewal is issued. The Consultant shall submit any request for Fee Rate increases in writing to the County no later than sixty (60) days before the effective date of the agreement renewal. Any request for a Fee Rate increase shall be accompanied by a detailed justification for the increase. The Fee Rate increase shall be limited to fully documented and justified increases. The County shall determine what constitutes acceptable documentation. All Fee Rates shall remain firm for the period of each agreement renewal term. Approved price changes will be put into effect through an Amendment to the Agreement. Price changes will not be retroactive.

The County reserves the right to negotiate or reject any fee adjustments requested by the Consultant and/or to not exercise any otherwise available option renewal term based on such fee adjustments.

Article 5 – Confidentiality

Section 5.1 Confidentiality The Consultant acknowledges that the information disclosed during the performance of this Agreement is confidential and/or proprietary to the County. Such information shall not be disclosed to third parties without written consent from the County.

The Consultant shall establish and maintain procedures and controls for the purpose of determining that no information in its records or information obtained from the County or from others in carrying out its function is disclosed. The County reserves the right to review such procedures to determine acceptability to the County. Any person(s) requesting information should be referred directly to the County. This provision shall survive the termination, cancellation or expiration of this Agreement.

Section 5.2 Contract Not Confidential Except for documents identified as an exception to Wis. Stats. S. 19.36(3), the Contract and all related documents are not confidential.

Section 5.3 Promotional Advertising Reference to or use of Walworth County, any of its departments, or sub-units or any County official or employee for commercial promotion is prohibited.

Article 6 – Conflict of Interest

The Consultant shall establish to prevent employees, consultants, or members of the board from using their positions for purposes that are, or give the appearance of being, motivated by a desire for private gain for themselves or others, such as those with whom they have family, business, or other ties.

Article 7 – Debarment and Suspension

The Consultant certifies through signing this Agreement that neither the Consultant nor any of its principals are presently on the state or federal government list of debarred or ineligible Consultants. In addition, the Consultant shall notify the County within (5) five business days in writing and send by registered mail if the Consultant or its principals receive a designation from the state or federal government that they are debarred, suspended, proposed for debarment, or declared ineligible by a state or federal agency. The County may consider suspension or debarment to be cause for implementing high risk contract provisions under Article 16 “Special conditions for high risk contract” or for revising or terminating the Agreement under Article 15 “Revision or termination of this Agreement.”

Article 8 – Standard of Care

Section 8.1 Representation The Consultant represents that the services provided shall be performed by qualified and competent personnel consistent with industry practice and the standards of care and practice appropriate to the nature of the services rendered.

Section 8.2 Errors and Omissions Any error or omissions in the designs or specifications furnished by the Consultant will be promptly, upon notice or discovery, corrected by the Consultant at no cost to the County. Payment of any direct damages, if any, caused directly by the errors or omissions, will be negotiated between the Consultant and the County based on the circumstances of the error or omission. In no case will the Consultant be liable for damages from an omission that results in betterment to the County. The County will hold an appropriate project contingency to remedy errors and omissions that result from services performed to the standard of care. The County's approval, acceptance, use of or payment for all or any part of the Consultant's services hereunder or of the Project itself shall in no way alter the Consultant's obligations or the County’s rights herein. This provision shall survive the termination, cancellation or expiration of this Agreement.

Article 9 – Independent Contractor

Section 9.1 Independent Contractor Nothing in this Agreement shall create a partnership or joint venture between the County and the Consultant. The Consultant is at all times acting as an independent contractor and is in no sense an employee, agent or volunteer of the County. The Consultant is not eligible for, and shall not participate in, any employee pension, health, or other fringe benefit plan of the County.

Section 9.2 Contract Not Assignable This Agreement is not assignable, in whole or in part, by the County or Consultant without written consent of Walworth County.

Section 9.3 Sub-Consulting The Consultant agrees that no sub-contract with a third party, for all or any part of the Consultant’s responsibilities identified in this Agreement, may be entered into without prior written approval of the County. The County agrees not to withhold approval for the Consultant to sub-contract, provided the sub-consultant abides by the terms and conditions of this Agreement. Regardless of the participation of an approved sub-consultant, The Consultant agrees to retain primary responsibility for the fulfillment of its obligations under this Agreement. The Consultant shall be fully responsible to the County for the acts, errors and omissions if his sub-consultants and/or persons either directly or indirectly employed by them as he is for the acts, errors and omissions of persons directly employed by the Consultant. This provision shall survive the termination, cancellation or expiration of this Agreement.

Section 9.4 No Authority to Bind County The Consultant has no authority to enter into contracts on behalf of the County. This Agreement does not create a partnership between the parties.

Section 9.5 No Construction All terms and conditions included in this Agreement are understood as NO CONSTRUCTION AGAINST ANY PARTY. This Contract is the product of informed negotiations between the County, the parties, all of whom are acknowledged to have been represented by competent and informed counsel.

If any part of this Agreement is deemed to be unclear or ambiguous, it shall be construed as if it were drafted jointly by all parties.

Article 10 – Indemnity and Insurance

Section 10.1 Indemnity To the proportional extent the Consultant is negligent, Consultant agrees that it will, at all times during the existence of this Agreement, indemnify the County, its officers, agents and employees against any and all liability, including claims, demands, damages, actions or causes of actions; together with any and all losses, costs or expense, including attorney fees, where such liability is founded upon or grows out of the acts, errors or omissions of the Consultant, its employees, agents or sub-consultants.

However, the provisions of this paragraph shall not apply to liabilities, losses, charges, costs or expenses caused by the County. This provision shall survive the termination, cancellation or expiration of this Agreement.

Section 10.2 Insurance The Consultant agrees that, in order to protect itself as well as the County under the indemnity provision set forth in the above paragraph, the Consultant will at all times during the terms of this Agreement keep in force a liability insurance policy issued by a company authorized to do business in the State of Wisconsin and licensed by the Office of the Commissioner of Insurance. Such insurance shall be primary. The types of insurance coverage shall be pursuant to Exhibit A.

The County reserves the right to increase, decrease and/or add additional insurance if necessary.

The Consultant acknowledges that its indemnification liability to the County is not limited by the limits of this insurance coverage.

Upon signing this Agreement, the Consultant will furnish the County with a “Certificate of Insurance” with the County listed as “additional insured” verifying the existence of such insurance. In the event of any action, suit, or proceedings against the County upon any matter indemnified against, the County shall notify the Consultant by registered mail within five business days.

The Consultant shall not allow sub-consultants, if any, to commence work until the aforementioned documents, where applicable, have been obtained from the sub-consultant(s).

Article 11 – License, Certification, and Staffing

Section 11.1 License and Certification The Consultant shall meet local, state and federal service standards and applicable state training, licensure and certification requirements as expressed by local, state and federal rules and regulations applicable to the services covered by this Agreement. The Consultant shall attach copies of its license or certification document and the most recent licensing or certification report concerning the Consultant to this Agreement when returning the signed Agreement to the County. During the Agreement period, if applicable, the Consultant shall also send the County copies of any licensing inspection reports within 5 business days of receipt of such reports.

Section 11.2 Staffing The Consultant shall ensure that staff providing services are properly supervised and trained and that they meet all of the applicable licensing and certification requirements.

Section 11.3 Professional Status The Consultant shall remain licensed to do business in the State of Wisconsin during the term of this Agreement.

Article 12 – Records

Section 12.1 Ownership All deliverables and /or other products of this Agreement (including but not limited to all procedures, solicitation packages, reports, records, summaries and any other matter and materials prepared by the Consultant in performance of this Agreement) will be the sole, absolute and exclusive property of the County, free from any claims or retention of rights, thereto on the part of the Consultant, its agents, subconsultants, officers or employees.

Section 12.2 Maintenance of Records The Consultant shall maintain and retain such records and financial statements as required by state and federal laws, rules, and regulations.

Section 12.3 Examination of Records The County shall at any time during normal business hours, upon reasonable notice, have access to and the right to examine, audit, transcribe, and copy, on the Consultant’s premises, any of the Consultant’s records and computer data storage media involving transactions directly pertinent to this Agreement. If the material is on computer data storage media, the Consultant shall provide copies of the data storage media or a computer printout of such if the County so requests. Any charges for copies of books, documents, papers, records, computer data, storage media or computer printouts provided to the County shall not exceed the actual cost to the Consultant. This provision shall survive the termination, cancellation or expiration of this Agreement.

Article 13 – Reporting

The Consultant shall comply with the reporting requirements of the County. All reports shall be in writing and, when applicable, in the format specified by the County. All reports shall be supported by the Consultant’s records. All reports shall be hand delivered to the County, sent by secure e-mail, or sent to the County via registered mail at the address listed in this Agreement, if required. This provision shall survive the termination, cancellation or expiration of this Agreement.

Article 14 – Resolution of Disputes

Section 14.1 Appeal The Consultant may appeal decisions of the County in accordance with the terms and conditions of the Agreement and Wis. Stats Chapter 68.

Section 14.2 Choice of Law Any dispute under this Agreement or related to this Agreement shall be decided in accordance with the laws of the State of Wisconsin and venue for any legal action between parties shall be in Walworth County Circuit Court. This provision shall survive the termination, cancellation or expiration of this Agreement.

Article 15 – Revision or Termination of this Contract

Section 15.1 Termination for Cause or Revision Failure to comply with any part of this Agreement may be considered cause for revision or termination of this Agreement. The County may terminate this Agreement at any time immediately for good cause.

The County may permit the Consultant a reasonable amount of time to cure a breach of the terms of this Agreement, if the breach is amenable to a cure. The County shall not unreasonably withhold such permission.

Section 15.2 Amendments All changes that are mutually agreed upon by and between the County and the Consultant, including any increase or decrease in the amount of the Consultant’s compensation, shall be in writing and designated as written amendments to this Agreement, which shall be reflected in subsequent work orders.

Section 15.3 Severability If any part of this Agreement shall be held unenforceable, the rest of this Agreement will nevertheless remain in full force and effect.

Section 15.4 Termination for Convenience Either party may terminate this Agreement by a 90-day written notice to the other party. The parties shall deal with each other in good faith during the 90-day period after notice of intent to terminate has been given.

In the event of termination, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs, reports and other materials related to the services prepared by the Consultant under this Agreement shall, at the option of the County, become the property of the County.

Upon termination, the County’s liability shall be limited to the costs incurred by the Consultant up to the date of termination. If the County terminates the Agreement for reasons other than non-performance by the Consultant, the County may compensate the Consultant for its actual allowable costs in an amount determined by mutual agreement of both parties. If the County terminates the Agreement for the Consultant’s breach, the Consultant may be liable for any additional costs the County incurs for replacement services and the County may withhold any payments to the Consultant for the purpose of set-off until such time as the exact amount of damages due to the County from the Consultant is determined.

Section 15.5 Non-Appropriation of Funds County reserves the right to terminate this Agreement in whole or in part without penalty if the County Board fails to appropriate funds for the continuation of the contract for any ensuing fiscal year.

Article 16 – Special Provisions for High Risk Contract

During the course of the Agreement, the County may determine that this Agreement is high risk as a result of evaluating the Consultant’s performance or other factors. Determination of high risk status could result in the County unilaterally implementing the following changes:

a. Modifying the payment method to a cost reimbursement basis;

b. Withholding authority to proceed to the next phase until receipt of evidence of acceptable performance within a given funding period;

c. Requiring additional, more detailed financial reports;

d. Performing additional project monitoring;

e. Requiring the Consultant to obtain technical or management assistance;

f. Establishing additional prior approvals; or

g. Other conditions that the County considers appropriate considering the circumstances.

The Consultant may appeal these changes under Article 14 “Resolution of Disputes,” or it may request renegotiation of the Agreement or give notice of termination of the Contract under Article 15 “Revision or Termination of this Agreement.”

Article 17 – Nondiscrimination/Affirmative Action

In connection with the performance of work under this Agreement, the Consultant agrees not to discriminate against any employee or applicant for employment because of age, race, religion, color, handicap, sex, physical condition, developmental disability as defined in Wis. Stats. S. 51.01 (5), sexual orientation as defined in Wis. Stats., s. 111.32(13m), or national origin. This provision shall include, but not be limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. Except with respect to sexual orientation, the Consultant further agrees to take affirmative action to ensure equal employment opportunities. Failure to comply with the conditions of this clause may result in the Consultant(s) becoming declared an ineligible Consultant, termination of the Agreement, or withholding of payment.

Article 18 – Additional Provisions

Section 18.1 Standard Terms and Conditions The Standard Terms and Conditions of Walworth County are made a part of this Contract by reference. Standard Terms and Conditions are available on the internet, under the Purchasing Division, Doing Business with Walworth County on the Walworth County Website or by clicking on the following link:

http://www.co.walworth.wi.us/DocumentCenter/View/479/05-2017-Standard-Terms-and-Conditions-PDF

Section 18.2 Order of Precedence In the event of conflict with the incorporated elements of the Contract, the following order of precedence shall prevail:

• Master Services Agreement

• Walworth County Standard Terms and Conditions

• Exhibit B – Statement of Qualifications from Consultant Name

Signatures

This Agreement becomes null and void if the time between the County’s authorized representative signature and the Consultant’s authorized representative signature on this Agreement exceeds sixty

(60) days.

For County Walworth County Typed Name: Jessica Conley Title: Finance Director

Signature:

Date:

For Consultant

Typed Name:

Title:

Signature:

Date:

http://www.co.walworth.wi.us/DocumentCenter/View/479/05-2017-Standard-Terms-and-Conditions-PDF

http://www.co.walworth.wi.us/DocumentCenter/View/479/05-2017-Standard-Terms-and-Conditions-PDF