SAMPLE
MASTER AGREEMENT FOR PROFESSIONAL SERVICES
WITH ______________(CONSULTANT) FOR
EMERGENCY GROUNDWATER SUPPLY INVESTIGATION
This Master Agreement is made this
day of
, 20___ between
the City of Santa Rosa, a charter city ("CITY"), and ____________ ("CONSULTANT") a
______________________________ (type of business entity).
RECITALS
A.
CITY desires to obtain professional engineering services on an ongoing basis for
a variety of different projects to be undertaken by CITY throughout the Term of this Master
Agreement for geotechnical groundwater program related services only.
B.
CITY desires to retain a qualified firm to conduct the services described above in
accordance with the Scope of Service as more particularly set forth in Section one below.
C.
CONSULTANT represents to CITY that it is a firm composed of highly trained
professionals and is fully qualified to conduct the services described above and render advice to
CITY in connection with said services.
D.
The parties have negotiated upon the terms pursuant to which CONSULTANT
will provide such services and have reduced such terms to writing.
AGREEMENT
NOW, THEREFORE, CITY and CONSULTANT agree:
1.
SCOPE OF SERVICE
a.
CONSULTANT shall provide geotechnical groundwater program related
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services for CITY.
b.
Under this Master Agreement, CITY shall have the right, at its sole and
absolute discretion, to issue project specific Project Work Orders to CONSULTANT, in the form
attached as Exhibit B (“Project Work Order”), requesting project specific services from
CONSULTANT under the general terms and provisions of this Master Agreement, and including
a specific scope of services for each such project, each of which Project Work Order, upon
mutual agreement and execution by the parties hereto, shall incorporate the terms and provisions
of this Master Agreement and in conjunction therewith shall be deemed a separate contract for
services.
c.
In case of any conflict between the terms of these documents, the order of
precedent and control shall be as follows: (i) completed and executed Project Work Order, with
respect to the project to which it applies; and (ii) this Master Agreement.
2.
COMPENSATION
a.
As compensation for all services of CONSULTANT in performance of
this Master Agreement, CITY shall pay CONSULTANT on a cost reimbursement basis at the
hourly rates or in the amounts set forth in the current fee schedule attached with a not-to-exceed
amount as designated in the Project Work Order.
CONSULTANT shall submit monthly statements to CITY, which statements shall
itemize the work and services performed to the date of the statement and set forth a progress
report, including work accomplished during the period, percent of each task completed, and
planned effort for the next period. Each invoice shall identify:
▪
▪
▪
Exact title of Project Work Order
Project Work Order Number
Original Project Work Order amount
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▪
▪
▪
▪
▪
▪
▪
▪
▪
Subsequent Project Work Order Amendment amount(s)
Previously billed amount
Total amount paid
Outstanding invoice numbers/amounts
Percent of the total project completed
Personnel who have worked on the project
Number of hours each worked during the period covered by the invoice
Hourly charges using the same staff and professional classifications as
used in applicable fee schedule for each such project
Amount remaining allocated but unpaid under this Master Agreement
b.
Payments prescribed herein shall constitute all compensation to
CONSULTANT for all costs of service, including, but not limited to, direct costs of labor of
employees engaged by CONSULTANT, travel expenses, telephone charges, typing duplication,
computer time, and any and all other costs, expenses and charges of CONSULTANT, its agents
and employees.
c.
Notwithstanding any other provision in this Master Agreement to the
contrary, the total cumulative maximum compensation to be paid for the satisfactory
accomplishment and completion of aggregate of tasks performed by CONSULTANT under this
Master Agreement, which includes the cumulative amount of all Project Work Order amounts,
shall in no event exceed the sum of $____________. The Finance Director is authorized to pay
all proper claims from various accounts as identified at the time of provision of service under
specific completed and executed Project Work Orders. The CITY is under no obligation to issue
any Project Work Orders under this Master Agreement.
d.
Billing: Due to the amount of staff time required to process invoices and
the number of invoices received for a typical project, invoices less than $500 will not be
processed unless the invoice clearly states that it is the final invoice for a project or requires
payment due to project dormancy. Invoices are reviewed by several members of CITY Staff and
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result in notable processing costs which we would like to avoid where possible and appropriate.
3.
DOCUMENTATION: RETENTION OF MATERIALS
a.
CONSULTANT shall maintain adequate documentation to substantiate all
charges for hours and materials as required by Section 2 of this Master Agreement.
b.
CONSULTANT shall keep and maintain full and complete documentation
and accounting records concerning all extra or special services performed by it that are
compensable by other than a flat rate and shall make such documents and records available to
authorized representatives of CITY for inspection at any reasonable time.
c.
CONSULTANT shall maintain the records and any other records related
to the performance of this Master Agreement, and shall allow CITY access to such records, for a
period of four (4) years.
4.
INDEMNITY; LIABILITY AWARENESS
a.
CONSULTANT shall, to the fullest extent permitted by law, indemnify,
protect, defend and hold harmless CITY, and its employees, officials and agents (“Indemnified
Parties”) for all claims, demands, costs or liability (including liability for claims, suits, actions,
arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or
costs of any kind, interest, defense costs, and expert witness fees), that arise out of, pertain to, or
relate to the negligence, recklessness, or willful misconduct of CONSULTANT, its officers,
employees, agents, in said performance of professional services under this Agreement, excepting
only liability arising from the sole negligence, active negligence or intentional misconduct of
CITY. If there is a possible obligation to indemnify, CONSULTANT’S duty to defend exists
regardless of whether it is ultimately determined that there is no obligation to indemnify.
b.
CONSULTANT agrees to identify and comply with all relevant aspects of
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multi-employer worksite regulations, including maintaining awareness of their role(s) as (a)
controlling, exposing, creating, and/or correcting employer. Neither the professional activities of
the CONSULTANT, nor the presence of the CONSULTANT or its employees and subconsultants at a construction/project site, shall impose any additional duty on the
CONSULTANT, nor relieve the General Contractor of its obligations, duties and responsibilities
including, but not limited to, construction means, methods, sequence, techniques or procedures
necessary for performing, superintending and coordinating the work in accordance with the
Contract Documents and any health or safety precautions required by any regulatory agencies.
The CONSULTANT and its personnel have no authority to exercise control over any
construction contractor or its employees in connection with safety programs or procedures. The
CITY agrees that the General Contractor shall be solely responsible for jobsite and worker
safety. However, CONSULTANT shall promptly notify the General Contractor and CITY if
CONSULTANT observes an imminent and flagrant threat to life or safety at the jobsite,
consistent with normal standards of professional care specifically applicable to
CONSULTANT’s employees or its sub-consultants present at the jobsite.
5.
INSURANCE
CONSULTANT shall maintain in full force and effect all of the insurance coverage
described in, and in accordance with, Attachment One, “Insurance Requirements”, which is
attached hereto and hereby incorporated and made part of this Master Agreement by this
reference. Maintenance of the insurance coverage as set forth in Attachment One is a material
element of this Master Agreement and a material part of the consideration provided by
CONSULTANT in exchange for CITY’s agreement to make the payments prescribed hereunder.
Failure by CONSULTANT to (i) maintain or renew coverage, (ii) provide CITY notice of any
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changes, modifications, or reductions in coverage, or (iii) provide evidence of renewal, may be
treated by CITY as a material breach of this Master Agreement by CONSULTANT, whereas
CITY shall be entitled to all rights and remedies at law or in equity, including but not limited to
immediate termination of this Master Agreement. Notwithstanding the foregoing, any failure by
CONSULTANT to maintain required insurance coverage shall not excuse or alleviate
CONSULTANT from any of its other duties or obligations under this Master Agreement. In the
event CONSULTANT, with approval of CITY pursuant to Section 6 below, retains or utilizes
any subcontractors or sub-consultants in the provision of any services to CITY under this Master
Agreement, CONSULTANT shall assure that any such subcontractor has first obtained, and shall
maintain, all of the insurance coverage requirements set forth in the Insurance Requirements at
Attachment One.
6.
ASSIGNMENT
CONSULTANT shall not assign any rights or duties under this Master Agreement
to a third party without the express prior written consent of CITY, in CITY’s sole and absolute
discretion. CONSULTANT agrees that prior to contracting for or otherwise engaging
consultants or engineers for use or assistance in performance under this Master Agreement, the
names shall be submitted to and approved by CITY.
7.
TERMINATION
a.
This Master Agreement or any specific Project Work Order may be
terminated by either party by giving ten (10) days notice to the other in writing of its intent to
terminate the Master Agreement or Project Work Order, as the case may be. A notice of
termination terminating the Master Agreement shall effect a termination of any and all
outstanding Project Work Orders, unless otherwise specified in such notice. A notice of
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termination with respect to a Project Work Order only, shall not effect a termination of this
Mater Agreement, nor any other outstanding Project Work Order.
b.
Upon receipt of a notice of termination, CONSULTANT shall submit to
CITY an itemized statement of services performed to the date of termination in accordance with
Section 2 of this Master Agreement, including all outstanding Project Work Orders, or with
respect to the terminated Project Work Order only, as applicable. Said services may include both
completed work and work in progress at the time of termination. CITY shall pay
CONSULTANT for any such work for which compensation has not previously been made by
CITY. CITY may require CONSULTANT to complete the incomplete documents and
CONSULTANT shall deliver to CITY all documents in its possession. All documents shall be
the property of CITY without additional compensation to CONSULTANT.
c.
This Master Agreement, unless otherwise terminated as hereinabove set
forth, shall expire and be of no further force or effect for issuance or execution of new Project
Work Orders effective January 1, 2015, but shall continue in effect with respect to all
outstanding Project Work Orders until such projects are completed.
8.
NOTICES
Except as otherwise specifically provided in this Master Agreement, any notice,
submittal or communication required or permitted to be served on a party, shall be in writing and
may be served by personal delivery to the person or the office of the person identified below.
Service may also be made by mail, by placing first-class postage, and addressed as indicated
below, and depositing in the United States mail to:
CITY:
CONSULTANT:
City of Santa Rosa
Name
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Public Works – Engineering Services
CIP Division
Mike Prinz, Supervising Engineer
69 Stony Circle
Santa Rosa, CA 95401
Phone: 707-543-4288
Fax:
707-543-4281
9.
Contract Manager
Address
Phone:
Fax:
INDEPENDENT CONTRACTOR
The parties intend that CONSULTANT, in performing the services specified,
shall act as an independent contractor and shall have control of its work and the manner in which
it is performed. It shall be free to contract for similar services to be performed for other
employers while it is under contract with CITY. CONSULTANT shall not be considered an
agent or employee of CITY and is not entitled to participate in any pension plan, medical, or
dental plans, or any other benefit provided by CITY for its employees.
10.
ADDITIONAL SERVICES
If CITY makes a decision to change the scope of services, as delineated in Section
1 above or in any executed Project Work Order, all such changes shall be by written amendment
to this Master Agreement or such Project Work Order, as the case may be, and shall be paid for
on the hourly charge basis set forth the then current and applicable fee schedule, if made part
hereof, or as mutually agreed by CONSULTANT and CITY prior to the provision of any such
additional services.
11.
SUCCESSORS AND ASSIGNS
CITY and CONSULTANT each binds itself, its partners, successors, legal
representatives and assigns to the other party to this Master Agreement and to the partners,
successors, legal representatives and assigns of such other party in respect of all promises and
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agreements contained herein.
12.
TIME OF PERFORMANCE
CONSULTANT shall not begin work under this Master Agreement until the
receipt and full execution of a written Project Work Order and a notice to proceed from CITY,
but in no event prior to delivering a fully executed agreement to CITY and obtaining and
delivering the required insurance coverage, and satisfactory evidence thereof, to CITY.
CONSULTANT shall thereafter work diligently and continuously to provide all the required
services and activities described therein. CONSULTANT shall complete all the required
services and tasks and complete and tender all deliverables to the reasonable satisfaction of
CITY.
13.
MISCELLANEOUS
(A) Entire Agreement. This Master Agreement, in conjunction with a completed
and executed Project Work Order, shall be deemed to contain the entire agreement between the
Parties with respect to the identified projects. Any and all verbal or written agreements
respecting the terms and provisions herein and made prior to the date of this Master Agreement
are superseded by this Master Agreement and shall have no further effect.
(B) Modification. No modification or change to the terms of this Master
Agreement, including any completed Project Work Order, will be binding on a Party unless in
writing and signed by an authorized representative of that Party.
(C) Compliance with Laws. CONSULTANT shall perform all services described
herein in compliance with all applicable federal, state and local laws, rules, regulations, and
ordinances, including but not limited to, (i) the Americans With Disabilities Act (ADA) of 1990,
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(42 U.S.C. 12101, et seq.), and any regulations and guidelines issued pursuant to the ADA,
which prohibits discrimination against individuals with disabilities and may require reasonable
accommodations; and (ii) and Labor Code Sections 1700-1775, which require prevailing wages
(in accordance with DIR schedule at www.dir.ca.gov) be paid to any employee performing work
covered by Labor Code Section 1720 et seq..
(D) Governing Law; Venue. This Master Agreement shall be construed, and its
performance enforced, under California law. Because this Master Agreement is to be performed
in the County of Sonoma, the parties hereto agree that the forum for the adjudication of any
dispute regarding the Master Agreement or enforcement shall be brought exclusively and solely
in Sonoma County, California.
(E) Conflict of Interest. In the event that CITY determines, in its discretion, that
CONSULANT is required to comply the requirements of the Political Reform Act, specifically
Cal. Govt. Code Section 87200, as well as CITY’s Conflict of Interest Code, CONSULTANT
shall promptly file a Form 700 – Statement of Economic Interest in accordance with the
applicable disclosure category and any other documents reasonable required by CITY in
compliance with the foregoing provisions.
(F) Waiver of Rights. It is the intent of the parties hereto that from time to time
either party may waive any of their rights under this Master Agreement, unless contrary to law.
Any waiver by either party hereto of rights arising in connection with this Master Agreement,
shall not be deemed a waiver with respect to any other rights or matters, whether under this
Master Agreement or otherwise.
(G) Ownership and Use of Property Rights. Unless otherwise expressly provide
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herein, all original works created by CONSULTANT for CITY hereunder shall be and remain
the property of CITY. CONSULTANT agrees that any patentable or copyrightable property
rights, to the extent created for CITY as part of the services provided hereunder, shall be in the
public domain and may be used by anyone for any lawful purpose.
(H) Incorporation of attachments and exhibits. The following attachments and
exhibits are intended to, and shall, be incorporated and made part of this Master Agreement,
subject to terms and provisions herein contained:
Attachment One - Insurance Requirements
Exhibit A
- Request for Proposals for Emergency Groundwater
Supply Investigation Services
Exhibit A-1
- Consultant Proposal for Emergency Groundwater
Supply Investigation Services
Exhibit B
- Sample Project Work Order and attachments
14. AUTHORITY; SIGNATURES REQUIRED FOR CORPORATIONS.
CONSULTANT hereby represents and warrants to CITY that it is (a) is a duly organized
and validly existing sole proprietorship, formed and in good standing under the laws of the State
of California, (b) has the power and authority and the legal right to conduct the business in
which it is currently engaged, and (c) has all requisite power and authority and the legal right to
consummate the transactions contemplated in this Master Agreement. CONSULTANT hereby
further represents and warrants that this Master Agreement, and any Project Work Order, has, or
will have, been duly authorized, and when executed by the signatory or signatories listed below,
shall constitute a valid agreement binding on CONSULTANT in accordance with the terms
hereof.
If this Master Agreement (and subsequently each Project Work Order) is entered
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into by a corporation, it shall be signed by two corporate officers, one from each of the following
two groups: a) the chairman of the board, president or any vice-president; b) the secretary, any
assistant secretary, chief financial officer, or any assistant treasurer. The title of the corporate
officer shall be listed under the signature.
IN WITNESS WHEREOF, the parties have executed this Master Agreement as of the day
and year first above written.
CONSULTANT
Type of Business Entity
CITY OF SANTA ROSA,
a charter city
By: ____________________________
By: ___________________________
Name:__________________________
Title:__________________________
Title:___________________________
Social Security Number:
ATTEST:______________________
City Clerk
#______________________________
APPROVED AS TO FORM:
By: ___________________________
City Attorney’s Office
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ATTACHMENT 1
INSURANCE REQUIREMENTS FOR CONSULTANTS
Consultant shall, at all times during the terms of this Agreement, maintain and keep in full force and effect, the
following policies of insurance with minimum coverage as indicated below and issued by insurers with AM Best
ratings of no less than A-:VI or otherwise acceptable to the City.
A
Commercial general liability at least as broad as ISO CG 0001
(Must include operations and completed operations coverage)
(per occurrence)
(aggregate)1
$1,000,000
$2,000,000
B
Business auto coverage at least as broad as ISO CA 00012
(per accident)
$1,000,000
C
Errors and Omissions liability 3
(per claim & agg)
$1,000,000
D
Workers Compensation
Employer’s Liability
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Statutory
$1,000,000
1
If insurance applies separately to this project/location, aggregate may be equal to per occurrence amount.
Coverage may be met by a combination of primary and excess insurance but excess shall provide coverage at
least as broad as specified for underlying coverage.
2
Auto liability insurance shall cover owned, nonowned and hired autos. If Consultant owns no vehicles,
auto liability coverage may be provided by means of a nonowned and hired auto coverage. If Consultant will
use personal autos in any way on this project, Consultant shall provide evidence of personal auto liability
coverage.
3
Consultant shall provide on a policy form appropriate to profession. If on a claims made basis, Insurance
must show coverage date prior to start of work and it must be maintained for three years after completion of
work.
4
Sole Proprietors must provide representation of their exempt status. The Worker’s Compensation policy
shall be endorsed with a waiver of subrogation in favor of the CITY for all work performed by the Consultant,
its employees, agents and subcontractors.
Endorsements:
All policies shall contain or be endorsed to contain the following provisions:
Coverage shall not be canceled by either party, except after thirty (30) days prior written notice has been
provided to the entity unless canceled for non-payment, then ten (10) days notice shall be given.
Liability policies are to contain, or be endorsed to contain the following provisions:
For any claims related to this project, the Consultant’s insurance coverage shall be primary and any
insurance or self-insurance maintained by the CITY shall be excess of the Consultant’s insurance and shall not
contribute with it.
The City of Santa Rosa, its officers, agents, employees and volunteers are to be named as additional insured
on a form equivalent to CG20 10 with an edition date prior to 2004.
Other Insurance Provisions
No policy required by this section shall prohibit Consultant from waiving any right of recovery prior to loss.
Consultant hereby waives such right with regard to the indemnities.
All insurance coverage amounts provided by Consultant and available or applicable to this agreement are intended
to apply to the full extent of the policies. Nothing contained in this Agreement limits the application of such
insurance coverage. Defense costs must be paid in addition to coverage amounts.
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Self-insured retentions and/or deductibles above $10,000 must be approved by the CITY. At the CITY’s option, the
Consultant may be required to provide financial guarantees.
Verification of Coverage and Certificates of Insurance
Consultant shall furnish the CITY with original certificates and endorsements effecting coverage required above.
Certificates and endorsements shall make reference to policy numbers. All certificates and endorsements are to be
received and approve by the CITY before work commences and must be in effect for the duration of the contract.
The CITY reserves the right to require complete copies of all required policies and endorsements.
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EXHIBIT B
CITY OF SANTA ROSA PUBLIC WORKS DEPARTMENT
PROJECT WORK ORDER NO. 00XXXX-2009-XX
PROJECT NAME:
CITY PROJECT MANAGER:
CONSULTANT DESIGNATED TEAM MEMBERS:
INSPECTOR:
SCOPE OF SERVICE: See Scope of Services/Proposal for Services dated MONTH XX, 20XX and Fee Schedule
attached as Exhibit B-1. Exhibit B-2 is attached for scope clarification. In the event of a discrepancy, the details of
Exhibit B-2 shall prevail. (CHOOSE EITHER DESIGN SERVICES OR CONTRACT MANAGEMENT DOCUMENT
FOR B-2)
START DATE: MONTH XX, 20XX
COMPLETION DATE: MONTH XX, 20XX
NOT-TO-EXCEED AMOUNT FOR THIS PROJECT: $X,XXX
CHARGE NUMBER FOR PAYMENT: XXXX
TERMS AND CONDITIONS: This Project Work Order is issued and entered into as of the last date written below in
accordance with the terms and conditions set forth in the “Master Agreement for Professional Services with
(CONSULTANT) dated MONTH XX, 20XX, which is hereby incorporated and made part of this Project Work Order.
The Master Agreement was approved by City Council Resolution No. XXXXX on MONTH XX, 20XX.
CITY OF SANTA ROSA,
A California charter city
By:_______________________________
Supervising Engineer, Deputy Director or Director
Date: _______________
(CONSULTANT)
By:________________________________
Date: _______________
Print Name:
Title: Chairman of the Board, President or any Vice-President
Tax ID:
By:________________________________
Date: _______________
Print Name
Title: Secretary, any Assistant Secretary, Chief Financial Officer, or any Assistant Treasurer
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APPROVED AS TO FORM:
By:________________________
Santa Rosa City Attorney’s Office
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