3-Agreement for Engineering Services Main Street Waterline draft.pdf

AGREEMENT FOR ENGINEERING SERVICES

Main Street

WATERLINE REPLACEMENT PROJECT

(Grant Avenue to 200 West) (Draft)

This Engineering Services Agreement (hereinafter referred to as “Agreement”) is entered into this ____ day of ___________________, 20____ by and between __________________________________________, with its principal place of business at ______________________________________ (hereinafter referred to as “Engineer”), and American Fork City, a municipal corporation with its principal place of business at 51 East Main Street, American Fork, Utah 84003 (hereinafter referred to as “City”) (collectively referred to herein as the “Parties”).

RECITALS

WHEREAS, Engineer is engaged in the business and profession of engineering services; and

WHEREAS, City desires to contract with Engineer for certain professional engineering services for this project scope of services and payment of services being identified and agreed to in the Main Street Waterline Replacement Project Request for Proposals (the “Project RFP”) attached hereto as Exhibit A and as more specifically outlined in this Agreement; and

WHEREAS Engineer has submitted to the City and the City has reviewed Engineer’s Scope of Services response to the Project RFP a copy of which is attached hereto as Exhibit B (the “Engineer’s Proposal”); and

WHEREAS, Engineer has the necessary expertise and experience to perform the said engineering services for City and Engineer and is properly qualified and licensed in the State of Utah; and

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:

AGREEMENT

1. Term; Termination.

a. The term of this Agreement shall be from the Effective Date of this Agreement through Project Completion. “Project Completion” occurs when all deliverables outlined in the Engineer’s Proposal are completed to the satisfaction of the City. The “Effective Date” shall be the date upon which all parties sign the Agreement.

b. Notwithstanding anything contrary contained herein, City may immediately terminate this Agreement for cause including material breach, ethical violations, or licensing issues. City may terminate this Agreement at any time, not constituting cause by giving Engineer thirty (30) days’ written notice in accordance with the notice provisions set forth herein. Upon receipt of such notice, Engineer shall cease all Services undertaken hereunder, except as may be necessary to provide for an orderly transition of such Services.

c. Engineer may terminate this Agreement at any time with thirty (30) days’ written notice to City in accordance with the notice provisions set forth herein. Upon termination by Engineer, City shall not be obligated to make payment for any Services not completed, in full, by Engineer.

d. Upon termination of this Agreement, Engineer shall provide a final invoice to City, showing all costs incurred but unpaid, and the City shall pay within 30 days such costs, as shown therein unless disputed. Before City pays the final invoice, the Engineer shall deliver all files reports, and other materials concerning services provided, maintained or controlled by Engineer, subject to all applicable federal and state law.

2. Scope of Services. The scope of services pursuant to this Agreement shall be limited to professional and technical engineering services. Specific services shall be as set forth in the Request for Proposals attached hereto as Exhibit A.

a. All Services shall be performed in accordance with City standards, ordinances and all applicable federal and state law.

b. If the terms of this Agreement conflict or are contrary to the terms outlined in the Project RFP or Engineer’s Proposal, this Agreement shall control.

3. Compensation. In consideration of the services provided to City by Engineer, City shall pay Engineer for Services rendered in accordance with this Agreement in an amount not to exceed $TBD as set forth in the Fee Scheduled attached hereto as Exhibit C.

4. Invoice; Payment.

a. For Services rendered hereunder, Engineer shall invoice City monthly for Services provided in accordance with this Agreement. Engineer shall submit monthly invoices to City showing the Services completed and the amount of compensation due.

Engineer shall submit invoices for Services done in a timely manner. City shall not be required to pay for Services that are invoiced more than 120 days after it was performed.

b. City shall pay Engineer through Automated Clearing House (ACH) payments. Engineer shall complete the ACH request form furnished by the City to authorize payment. Any other method of payment must be approved by the City and negotiated before payment is requested.

c. Payment of undisputed amounts shall be due and payable thirty (30) days after the City’s receipt of the invoice.

d. In the event amounts are not paid in full within thirty (30) days of City’s receipt of the invoice, City agrees to pay interest at the rate of one percent (1.0%) per month on any and all unpaid balance of services, costs, and expenses.

e. In the event an amount is disputed, City shall notify Engineer in writing of its dispute within thirty (30) days. The Parties shall make a good faith effort to resolve the disputed amount. If correspondence does not resolve the dispute, the Parties or their respective representatives shall meet in person on at least one occasion and attempt to resolve the matter prior to pursuing litigation.

5. Relationship of Parties.

Engineer, its agents, and employees shall be an independent contractor performing professional and technical engineering services for the City. Nothing contained in this Agreement shall be construed to create a relationship of employer and employee, master and servant, principal and agent, or partners or co-venturers between City and Engineer.

As independent contractors, Engineer, its agents, and employees shall not qualify for or receive any employee benefits from the City, including but not limited to, leave, retirement, insurance, bonding, use of City vehicles, or any other benefits afforded to City employees.

6. Employees and Subcontractors.

Engineer shall be solely responsible for the payment of wages, salary or benefits to any and all employees or contractors retained by Engineer in the performance of the Services under this Agreement. Engineer agrees to indemnify, defend and hold harmless City from any and all claims that may arise from the Engineer’s relationship to its employees and subcontractors.

7. Standard of Performance; Licenses.

Engineer agrees and represents that it has the personnel, experience, and knowledge necessary to qualify it for the particular duties to be performed under this Agreement.

Engineer shall perform the Services described herein in accordance with the standard of care required for the performance of engineering services. Further, Engineer shall maintain all required licenses, including without limitation, all necessary professional and business licenses, throughout the term of this Agreement. Engineer shall require and ensure that all of Engineer’s employees and subcontractors maintain all required licenses, including without limitation, all necessary professional and business licenses.

8. Professional Liability Insurance.

Engineer shall maintain, at its sole expense, professional liability insurance (errors and omissions) with limits of not less than $2,000,000 per claim and $2,000,000 in the aggregate, covering any negligent acts, errors, or omissions arising out of or related to the performance of this Agreement. Such coverage shall be maintained for the duration of the Agreement and for a period of not less than one (1) year after final completion of the services.

9. Other Insurance.

Without limiting any indemnity or other obligations of Engineer hereunder, Engineer shall, prior to providing Engineering Services, secure and continuously thereafter (throughout the term of this Agreement) carry with insurers the following insurance coverage in policies and shall furnish proof thereof satisfactory to City promptly when requested:

Worker’s Compensation Insurance and Employer’s liability Statutory amount

General Liability $1,000,000/$2,000,000 Umbrella Liability $1,000,000 Automobile Liability $1,000,000

The general liability, umbrella, and automobile liability policies shall include provisions or endorsements naming City as an additional insured.

10. Indemnification.

Engineer specifically and expressly agrees to indemnify and save and hold harmless the City (including, without limitation, its elected and appointed officers, employees, successors, and assigns) from and against any and all demands, liabilities, claims, damages, actions, attorney fees or other cost incurred by the City and/or proceedings in law or equity (including reasonable attorneys’ fees and costs of suit), to the extent caused by or resulting from any negligence, gross negligence, intentional misconduct, or under any other actionable fault of Engineer (including, without limitation, its employees, agents, subcontractors, or consultants) in the performance or failure of performance of the Services provided, or to be provided, hereunder. Nothing herein shall, however, require Engineer to indemnify, and/or save or hold harmless City or its elected or appointed officers, employees, successors, or assigns with respect to (a) the negligence, intentional misconduct, or other actionable fault of City or its elected or appointed officers, employees, successors, or assigns, or of the agents or consultants of City other than Engineer; or (b) any demand, liability, claim, damage, action, and/or proceeding not related to the Services provided, or to be provided, by Engineer hereunder.

11. Time is of the Essence; Liquidated Damages.

City and Engineer agree that time is of the essences and that, in the case of Engineer’s failure to complete this Agreement within the time specified and agreed upon, City will be damaged thereby; and because it is difficult to definitely ascertain and prove the amount of such damages, it is hereby agreed that the amount of such damages shall be the liquidated sum of One Hundred Dollars ($100.00) per calendar day for each day’s delay in completing this Agreement in excess of the number of working days prescribed; and Engineer hereby agrees that said sum shall be deducted from amounts due the Engineer under the Agreement or, if no amount is due, Engineer hereby agrees to pay to City as liquidated damages such total sum as shall be due for such delay, computed as aforesaid.

12 Notice.

All notices under this Agreement will be in writing and will be deemed to have been duly given if delivered personally or by a nationally recognized courier service or mailed by registered or certified national mail service, return receipt requested, postage prepaid, to the Parties at the addresses set forth below. All notices under this Agreement that are addressed as provided in this Section. If delivered personally or by nationally recognized courier service, notice will be deemed given upon delivery. If delivered by mail in the manner described above, notice will be deemed given on the date received by the recipient as reflected in the return receipt. All notices shall be directed to the Parties hereto as follows:

CITY:

American Fork City Attn: City Administrator 51 East Main Street American Fork, Utah 84003 Phone: (801) 763-3000

With a copy to (which shall not constitute notice):

American Fork City Public Works Attn: Public Works Director 275 East 200 North American Fork, Utah 84003 Phone: (801) 763-3060

ENGINEER:

13. Ownership.

All Services, work product and deliverables produced under this Agreement shall remain the exclusive property and shall inure to the benefit of City as work for hire. Engineer shall not use, sell, disclose or obtain any other compensation for such work for hire. In addition, Engineer may not, with regard to all Services, work, work product, deliverables or work for hire required by this Agreement, apply for in its name or otherwise, any copyright, patent or other property right and acknowledges that any such property right created or developed remains the exclusive right of City.

14. Waiver.

Unless otherwise indicated herein, failure by any party to insist upon the strict performance of any covenant, duty, agreement, or condition of this Agreement, or to exercise any right or remedy consequent upon a breach thereof, shall not constitute a waiver of any such breach of any other covenant, agreement, term, or condition. Any party, by notice delivered in the manner provided in this Agreement, may, but shall be under no obligation to waive any of its rights and any conditions to its obligation hereunder, or any duty, obligation, or covenant of any other party. No waiver shall affect or alter the remainder of this Agreement, but each and every covenant, agreement, term, and condition shall continue in full force with respect to any other then existing or subsequently occurring breach. To be effective a waiver must be signed by both Parties hereto.

15. Compliance with Laws and Policies.

In the performance of their obligations hereunder, the Parties shall obey and abide by all applicable laws, rules and regulations, and with all applicable ordinances, policies and procedures. Both Parties shall abide by all applicable federal and state laws, rules, regulations, and executive orders pertaining to equal employment opportunity; pursuant thereto, shall assure that no person shall, on the grounds of race, color, national origin, sex, age, or disability, be excluded from employment with, participation in, be denied the benefits of or be otherwise subjected to discrimination under, any program or activity performed under this Agreement; and to promptly take appropriate steps to correct any deficiency that may be found to occur in compliance with such laws and rules.

16. Rights and Remedies.

The rights and remedies of any of the Parties hereto shall not be exclusive. In general, the respective rights and obligations hereunder shall be enforceable by specific performance, injunction, or other equitable remedy, but nothing herein contained is intended to or shall limit or affect any rights at law or by statute or otherwise of any party aggrieved as against the other party for a breach or threatened breach of any provisions hereof, it being the intention of this Section to make clear the agreement of the Parties that the respective rights and obligations of the Parties hereunder shall be enforceable in equity as well as to law or otherwise.

17. Entire Agreement.

This Agreement and the exhibits attached hereto constitute the entire agreement between the Parties on the subject matter covered herein and this Agreement supersedes any and all prior agreements between the Parties related to the services. The Parties represent and acknowledge that they have not relied on any statements or promises of any kind other than those specifically set forth in this Agreement.

18. Amendments.

This Agreement may only be amended in writing signed by each of the Parties hereto. If, as the result of legislative action or rule-making, any of the provisions of this Agreement becomes inconsistent with Utah law, the Parties will promptly meet to negotiate in good faith such amendments as may be necessary to comply with Utah law.

19. Force Majeure.

Neither City nor Engineer shall be liable for any delay in the performance of this Agreement, nor for any other breach, nor for any loss or damage arising from uncontrollable forces such as fire, theft, storm, war, or any other force majeure that could not have been reasonably avoided by exercise of due diligence.

20. Section Headings.

The headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.

21. Severability.

In any provision of this Agreement shall be held or deemed to be, or shall in fact be, invalid, inoperative or unenforceable to any extent, the remainder of this Agreement shall not be impaired and shall be enforced to the fullest extent permitted by law.

22. Counterparts.

This Agreement may be executed in one or more counterparts, each of which when so executed shall be deemed an original, but all of which together shall constitute one instrument.

23. Choice of Law.

The interpretation of this Agreement and any claim or controversy arising out of or related to this Agreement shall be governed by the laws of the State of Utah. Jurisdiction and venue for the enforcement of this Agreement shall be found exclusively in the courts of Utah County, State of Utah. Each of the Parties irrevocably submits to the exclusive jurisdiction of such courts in any proceeding, waives any objection it may now or hereafter have to venue or to convenience of forum, agrees that all claims in respect of any proceeding shall be heard and determined only in any such court and agrees not to bring any proceeding arising out of or relating to this Agreement in any other court.

24. Confidentiality and Data Privacy.

Any confidential information provided to or developed by the Engineer in the performance of this Agreement shall be kept confidential and shall not be revealed or made available to any person by the Consultant without the prior written approval of the City. This provision shall survive any termination of this Agreement. Engineer agrees to abide by and comply with any applicable federal, state or local laws, rules, regulations of policies requiring data security and privacy.

If applicable, Engineer is required to comply with the requirements of Utah Code § 63A- 19-101 et seq. Government Data Privacy Act including but not limited to Utah Code § 63A-19-401.4 requiring the Engineer to handle any personal data processed or accessed by Engineer to the same extent as the City.

Engineer also understands and agrees City is subject to the Government Records Access and Management Act, Title 63G, Chapter 2 of the Utah Code (“GRAMA”), and City cannot guarantee that any information or any document or record provided to City by Engineer will not be subject to disclosure unless it is properly classified as a “protected record” under GRAMA based upon a written claim of business confidentiality under Utah Code Ann. §§ 63G-2-305 and -309 and other provisions of GRAMA. For any record provided by Engineer to City to be classified as a “protected record”, Engineer must provide a written claim of business confidentiality and a concise statement of reasons and justifications supporting the claim of business confidentiality with the record when it is first submitted by Engineer to City and, if not so provided, any claim to protected record status may be deemed to have been waived and relinquished by Engineer.

25. Assignment.

This Agreement may not be assigned by either party without the written consent of the other party. If consent to an assignment is obtained, this Agreement is binding on the successors and assigns of the Parties to this Agreement.

26. Attorney Fees; Costs.

In the event either party seeks to enforce the terms hereof in a lawsuit or other proceeding, the prevailing party shall be entitled to an award of the costs incurred, including reasonable attorney fees.

27. Authority.

The individual(s) executing this Agreement on behalf of, or as a representative for a corporation or other person, firm, partnership or government entity, represents and warrants that he or she is duly authorized to execute and deliver this Agreement on behalf of the corporation, person, firm, partnership or government entity and that this Agreement is binding upon the entity in accordance with its terms.

IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the Effective Date.

ENGINEER

By:_______________________

Its:________________________ Date:______________________

AMERICAN FORK CITY

Bradley J. Frost, Mayor

Date:__________________________

ATTEST:

City Recorder

EXHIBIT A

RFP

Exhibit B Engineer’s Proposal

Exhibit C Fee Schedule