HomeMy WebLinkAbout02- Merrick and Co. Client Agreement for Prof. Services
Contract No.
Client
Agreement for Professional Services
Short Form
Agreement made between The City of Bozeman, Montana ("Client") and Merrick &
Company ("Merrick"), a Colorado corporation.
Client desires to obtain professional services for the "Project" described on Attachment A and the
parties wish to set forth the terms and conditions for performance of these services.
NOW THEREFORE, for and in consideration of the mutual promises and covenants herein, and tor
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as tollows:
1. Services.
1.1 Merrick agrees to perform the services described in Attachment A ("Statement of
Services & Project Schedule"). Upon notitication to proceed, Merrick shall promptly
commence and diligently continue the services to completion in compliance with
Attachment A, except as may be otherwise provided herein.
1.2 Merrick agrees to pertorm its services in a manner consistent with the care and skill
exercised by professionals practicing in the same locality and specialty under similar
conditions. Merrick shall be responsible for completeness and accuracy of its services and
shall correct errors or omissions at its own expense. Should Client become aware of errors
or omissions in or otherwise become dissatisfied with the services, Client shall give prompt
written notice to Merrick and allow a reasonable time for correction by Merrick. There are
no warranties, express or implied, including, without limitation and to the extent they may
be applicable, the implied warranty of "merchantability " and "fitness for a particular
purpose", which extend beyond the description in this Agreement.
2. Compensation. Client shall pay Merrick for basic services, in accordance with
Attachment B ("Merrick's Compensation"), upon presentment of an invoice and shall notify
Merrick of any objection within fourteen (14) calendar days ofihe invoice date, identifying the
reasons therefore in writing and timely paying that portion not in dispute. Invoices will be
considered acceptable to Client ifno such objections are made. Invoices not paid within thirty (30)
days of presentment (excepting any portion of an invoiced amount in dispute and resolved in favor
of Client) shall accrue interest at 1.5 percent per month, compounded annually. If payment is
withheld, Merrick may suspend services or terminate this Agreement without incurring liability to
Client or others tor damages, including incidental, special, indirect, or consequential damages.
Merrick shall not be required to perform additional services or make changes to the scope of
services until an authorization specifying such services and the compensation therefore is signed
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by both parties. An equitable adjustment shall be made to Merrick's compensation tor any increase
or decrease in services.
3. Client Responsibilities. Client shall designate a representative with authority to act tor
Client in all things pertaining to this Agreement. Client shall cooperate with Merrick and provide
intormation and criteria of Client's requirements tor the Project, including any time or budgetary
limitations. Client shall turnish specifications and standards it will require and shall respond
promptly to Merrick's submissions. Client shall consult with Merrick on a regular basis concerning
the timeliness, cost and adequacy of services during the phases of scheduled work and the work
progress dates and turnish to Merrick written notice of any noncompliance therewith. Merrick
shall not be responsible for protection of the work and safety of the public on the Project nor for
the means, methods, techniques and sequencing of the work of others. Site visits by Merrick, if
any, shall be tor observation and not for detailed inspection or supervision. Merrick shall be
entitled to rely upon as accurate any plans, drawings, specitications, maps, surveys and other data
turnished by Client or others and Merrick shall not be liable for errors or omissions in such data.
Any cost estimate made by Merrick relating to the work of others shall be on the basis of Merrick's
protessional experience and judgment but Merrick cannot and does not guarantee or warrant that
costs will not vary from such estimates. Documents prepared by Merrick are instruments of
service, Merrick shall retain ownership and property interests therein, and reuse without the prior
express written consent of Merrick shall be at Client's sole risk.
4. Confidential Information. The parties may exchange trade secrets or confidential and
proprietary information ("Confidential Information") which each agrees to keep confidential and
not use to the detriment or competitive disadvantage of the other. These restrictions do not apply if
Confidential Information is in the public domain; was known to the receiving party at the time of
disclosure; was readily ascertainable from public sources at the time of disclosure; was
independently developed by the recipient without recourse to Confidential Information; or is the
subject of demand by subpoena, court order or other similar mandatory legal process. These
covenants survive expiration or termination of this Agreement and apply for a period of two (2)
years thereafteL Not withstanding the foregoing, Merrick acknowledges and agrees that the
products ofthe services performed under this contract, including but not limited to all aerial
photographs in either hard or soft copy, shall be considered public information under the laws of
the state of Montana and not confidential information as defined herein. The City of Bozeman
shall have the right to use said photographs in any manner it deems necessary and proper.
5. Termination. This Agreement may be terminated for Client's convenience or by either
party for failure of the other to tultill a substantial obligation hereunder. Twenty (20) days advance
written notice shall be given for termination. Upon termination and if Client is not in breach of this
Agreement, Merrick shall deliver to Client all finished services. Merrick shall not be responsible
for the accuracy, completeness or workability of documents prepared by Merrick if changed or
completed by Client or by another party. Merrick shall be paid for its costs and services performed
through the date of termination. If termination is for Client's convenience, in addition to payment
for costs and services performed, Client shall pay Merrick as a termination expense ten (10)
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percent of the total amount invoiced or to be invoiced by Men'ick through the etfective date of
termination.
6. Insurance. Merrick shall maintain the following insurance during the term of this
Agreement: Worker's Compensation Insurance - statutory including Employers Liability, with
limits of $100,000 each accident; $500,000 disease - policy limit; $100,000 disease - each
employee; Professional Liability Practice Policy - $1,000,000 per claim and $2,000,000 annual
aggregate; Commercial General Liability Insurance - $1,000,000 per occurrence and
$2,000,000 aggregate; Business Auto Liability Insurance - $1,000,000 per occurrence, combined
single limits (owned, hired & non-owned); and UmbrellalExcess Liahility Insurance -
$3,000,000 per occurrence, annual aggregate.
7. Indemnification & Risk Allocation. Merrick agrees to indemnify and save Client
harmless from any loss, cost, or expense, including attorney fees, claimed by third parties tor
property damage or bodily injury, including death, caused by the negligence of Merrick in
connection with Merrick's protessional services. Client agrees to indemnify and save Merrick
harmless {Tom any loss, cost, or expense, including attorney fees, claimed by third parties tor
property damage or bodily injury, including death, caused by the negligence of Client in connection
with the operations of Client. If the negligence of both Merrick and Client is the cause of such
damage or injury, the loss, cost, or expense shall be shared between Merrick and Client in
proportion to their relative degrees of negligence and the right of indemnity shall apply for such
proportion. Merrick's maximum liability to Client, in the aggregate, for claims, liabilities, losses,
or damages of any nature arising out of or resulting from this Agreement (including, without
limitation, indemnity obligations, contract damages, attorney's fees and expert-witness fees),
arising trom any cause(s) and regardless of the legal theory asserted (including, without
limitation, negligence, indemnity, breach of contract or warranty, strict liability, or tort), shall in
no event exceed the greater of (a) $ , or (b) the total compensation received by Merrick
for services rendered under this Agreement (or if separate task orders are issued for each project,
then the total compensation received by Merrick for services under the applicable task order).
Neither party hereto shall be liable to the other tor incidental; special, indirect or consequential
damages and Merrick shall not be liable for any cost or expense that provides betterment, upgrade
or enhancement of the Project.
8. Applicable Law. Montana law governs this Agreement, without reference to conflict of
law principles, if any, and the prevailing party will be entitled to an award of costs (including
reasonable attorney fees including salary of the City Attorney or other in-house counsel and expcrt
witncss and consulting fees) in any dispute resolution forum. The entire agreement of the parties is
set forth herein which supercedes all prior understandings, governs any services heretotore, and
may be amended only in a writing signed by both parties. This Agreement shall not be construed
against either party in the event of an ambiguity. Ifany provision hereof is held unenforceable by a
court or like authority, the remainder shall be unaffected and there shall be deemed substituted a
valid and enforceable provision as similar as possible to the affected provision.
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9. Notices. Notice required or permitted hereunder shall be in writing and delivered in a
manner most efficient under the circumstances. Subject to the foregoing and unless otherwise
specifically provided, notice shall be given by hand delivery, facsimile, or certified mail (postage
prepaid & return receipt requested), delivered as follows:
Merrick:
Merrick & Company
2450 S. Peoria Street
Aurora, Colorado 80014
Attn: Brian W. Holzworth
Telephone No.: (303) 751-0741
Facsimile No.: (303) 751-2581
E-mail:
Client:
City of Bozeman
20 East Olive Street
P.O. Box 1230
Bozeman, MT
Attn: Jon Henderson
Telephone No.: (406) 582-2250
Facsimile No.: (406) 582-2263
E-mail: jhenderson@bozeman.net
or at such other address as a party hereto may designate by written notice. Notice shall be deemed
effective on the date of delivery if hand delivered or sent by fax. (if evidenced by the generation of a
contemporaneous confirm of transmission) or three days after mailing if sent by certified mail.
10. General. This Agreement is tor personal services and may not be assigned without the
prior written approval of the parties. There are no third party beneficiaries hereto and this
Agreement shall inure to the benetit of and shall be binding upon the parties and their respective
legal representatives, successors, and approved assigns. Merrick shall perform its services as an
independent contractor and not as an agent, employee, representative, fiduciary, joint venturer or
partner of Client. Merrick shall not be in default of its obligations if its performance is prevented
or delayed by afhrce mqjeure condition or any other cause beyond the reasonable control of a
party hereto.
IN WITNESS WHEREOF, the parties execute this Agreement on the date last written below.
City Qt]30zeman
Merrick & Company, a
Colorado corporation
(See. ~t\co..... ')
Signature
jj.JJWt~~
Signature
r~~4
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Name
Title
Date
C:ST ~
~J 0./
Robin Sullivan, Clerk of Commission
Contract No.
Name
Title
Date
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Contract No.
ATTACHMENT A
Statement of Services & Project Schedule
In accordance with the provisions of Article 1, Merrick agrees to perform the services specifically
described below (dcscribc scrviccs in dctail, scrvices not described arc not included in the scope of serviccs
and will not be implied by course of conduct or custom in the industry, or otherwise).
Merrick is proposing the use of conventional 1 "=600' (1 :7,200) black and white aerial
photography coupled with softcopy photogrammetric practices. The mission has been planned
such that tuture topographic data could meet FEMA specifications. The photography will also
support the requested 0.5' digital black & white OItho photography. Merrick will rectify imagery
to an ortho only DEM such that it meets NMAS 1 "=1 00' specifications. Merrick proposes to
control the photography with airborne GPS techniques. This process does require supplemental
ground control. Merrick will provide the City with coordinates for any paneled ground control
established for the project.
Merrick can complete the mapping within 210 days of photography acquisition. The proposed
cost tollows:
Expanded City of Bozeman Aerial of Interest
~39 square miles
~ 156 1/4 section tiles (PLSS 1;4 sections to be provided to Merrick by the City of Bozeman)
0.5' black and white ortho imagery, GeoTIFF format
Total: $44,015*
*Costs are additional to FEMA work already contracted by ICON Engineering.
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Contract No.
ATTACHMENT 8
MERRICK'S COMPENSATION
I. Direct Labor
Merrick's compensation for time actually spent by Merrick's employees in the
performance of the Work shall be in accordance with the following table of composite
hourly rates:
CLASSIFICATION
GRADE
HOURLY RATE
The above rates provide tull compensation to Merrick for actual salaries and wages,
payroll burden (payroll taxes, sick leave, vacation, holiday pay, pension, savings plans,
health and life insurance), departmental overhead, general & administrative expenses and
tor profit.
Approved overtime shall also be compensated in accordance with the above rates except
for non-exempt personnel, tor which the rate shall be one and one-half times the rate
shown above.
2. Other Direct Costs
In addition to the Direct Labor compensation as provided in 1., above, Client will
reimburse Merrick tor its actual and reasonable cost incurred in the performance of the
Work including the tollowing items:
a. The cost of transportation and living expense of Merrick's managers or employees
traveling from home office or project site incurred in discharge of duties connected with
the Work. Reimbursement for air travel shall not exceed Coach fare, without prior written
approval of Client.
b. The cost incurred tor premium handling of document transmittals in excess of the
cost to transmit such documents via First Class U.S. Mail, such as express airfreight or
private courier; and long-distance telephone, telegraphic, and telecopier services.
c. Reproduction of reports and documents required for submission to Client.
d. The cost of subcontracts, consultants and other procured services necessary tor the
Work, with the prior approval of Client's representative.
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e. Any other costs not described above which are proper charges to the Work and
approved in advance by Client's representative.
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