HomeMy WebLinkAboutAGREEMENT FOR THE DESIGN AND CONCEPT FOR WHITEWATER/SAVANNAH RIVER WITH MCLAUGHLIN WHITEWATER DESIGN GROUP R R MERRICK*
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CLIENT
MASTER AGREEMENT
FOR
PROFESSIONAL SERVICES
Between
Merrick & Company
and
Augusta , Georgia
Table of Contents
Article 1 Merrick's Services 2
Article 2 Changes to Scope of Services,Suspension 3
Article 3 Client Responsibilities 3
Article 4 Records,Audit and Documents 4
Article 5 Confidential&Proprietary Information 5
Article 6 Indemnification&Risk Allocation 5
Article 7 Termination 6
Article 8 Dispute Resolution 6
Article 9 General 6
A-Form of Work Order&Additional Services
B-Insurance
C-Compensation
D-Additional Client Responsibilities
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Client Master Agreement for Professional Services
This Client Master Agreement for Professional Services("Agreement")is made by and between Merrick&Company,
a Colorado corporation("Merrick")and Augusta,Georgia,a political subdivision of the State of Georgia("Client"),
effective as of ,201 .
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 those services.
NOW THEREFORE, for and in consideration of the mutual promises herein, and for other good and valuable
consideration,the receipt and sufficiency of which are hereby acknowledged,the parties agree as follows:
Article 1 - Merrick ' s Services
1.1 Services and Compensation. Merrick agrees to perform the services described in Attachment A("Form of
Work Order&Additional Services"). Individual tasks will be authorized by written Work Orders issued from time to
time by Client and accepted in writing by Merrick. Upon receipt of an executed Work Order, Merrick shall promptly
commence and diligently continue the services to completion in compliance with Attachment A,subject to the other terms
and conditions of this Agreement.
1.2 Each Work Order hereunder shall refer to this Agreement,shall be governed by the terms and provisions hereof,
and shall indicate the scope of and include any required data or specifications for the Work to be performed pursuant
thereto. The Work Order shall also include the schedule,budget and any other pertinent information required to perform
the Work. Merrick shall not proceed with any phase of any work prior to the receipt of a written Work Order describing
such work and its written acceptance of such order.
1.3 Standard of Care.Merrick's services shall be performed in a manner consistent with the care and skill ordinarily
exercised by professionals practicing in the same locality and specialty under the same or similar conditions. Merrick
makes no warranties or guaranties,either express or implied,of any kind,nature or type whatsoever(including those of
condition,merchantability,suitability and fitness for a particular purpose or use)regarding the services. Merrick expressly
disclaims all such warranties or guaranties. The foregoing is collectively referred to as the"Standard of Care."
1.4 Insurance.Merrick shall maintain during the term of this Agreement and,if Client is not in default hereunder,
for a period of two(2)years after Merrick's services,insurance as set forth in Attachment B.
1.5 Compliance with Laws,Errors. Merrick shall endeavor to follow and comply with applicable law. Merrick
shall be responsible for completeness and accuracy of its services and shall correct its errors or omissions at its own
expense. Should Client become aware of errors or omissions in the services or should Client otherwise become dissatisfied
with the services, Client shall give prompt written notice to Merrick so that Merrick may take measures to minimize the
consequences of such condition, and thereafter allow a reasonable time for correction by Merrick. Proceeding with a
construction phase without such notice constitutes a representation by Client that it is unaware of errors or omissions in,
and is satisfied with the services at that time.
1.6 Warranties.Warranties for machinery,equipment,and the like procured or furnished by Merrick are limited to
those provided by the suppliers or manufacturers.
1.7 Taxes, Licenses. Merrick shall promptly pay, when due, taxes, excises, license fees directly applicable and
chargeable to the services it performs under this Agreement. Merrick shall take out and keep current applicable licenses
required to perform the services.
1.8 Project Execution. Client and Merrick agree to work together,and with other members of the project team,on
the basis of trust,good faith and fair dealing,and shall take actions reasonably necessary to enable each other to perform
this Agreement in a timely,efficient and economical manner. Client shall endeavor to promote harmony and cooperation
among Client,Merrick,and other members of the project team.
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1.9 Compensation. Client shall pay Merrick for its basic services as provided in Attachment C. If changes to the
scope of services or additional services cause an increase or decrease in Merrick's services,an equitable adjustment shall
be made to Merrick's compensation under Article 2 before proceeding with such services, and this Agreement shall be
modified in writing accordingly.
1.10 Equal opportunity.The parties hereby incorporate the requirements of 41 C.F.R. § 60-1.4(a)and 29 C.F.R. §
471,Appendix A to Subpart A,if applicable. Client and Merrick shall abide by the requirements of 41 CFR 60-300.5(a)
and 41 CFR 60-741.5(a),if applicable. These regulations prohibit discrimination against qualified protected veterans and
qualified individuals with disabilities, and require affirmative action by covered prime contractors and subcontractors to
employ and advance in employment qualified protected veterans and qualified individuals with disabilities.
Article 2 - Changes to Scope , Suspension
2.1 Changes to Scope.A partial itemization of additional services available is set forth in Attachment A. Client may
request that Merrick perform these and other additional services or make changes to the scope of services. Such changes
or additions may include the work required to evaluate such a request. Except where time is of the essence(in which case
changes or additions may be authorized verbally and later confirmed in writing),Merrick and Client shall agree in writing
to the exact nature of the change or addition prior to its implementation. This writing,when signed by both parties,shall
constitute an authorization for changes or additions and shall contain a description of the services,the commencement date
and expected completion date for the services,and shall address costs and any special conditions applicable to the services.
2.2 Adjustment to Compensation. The parties shall in good faith attempt to reach a written agreement adjusting
Merrick's compensation in an equitable manner if changes or additions cause an increase or decrease in Merrick's services
including,without limitation,field changes,delays due to no fault of Merrick that cause Merrick to incur additional costs,
changes in Client's ownership or personnel. If such an equitable adjustment cannot be reached, Merrick shall perform
such services on a cost plus basis. In this event,Merrick shall keep an accurate record of its services,supported by time
sheets,invoices and other documentation reasonably requested by Client. Merrick shall accurately substantiate costs in a
clear and precise manner. If Client is current in its obligations under this Agreement,Merrick's profit mark-up shall be
limited to ten percent(10%)for services performed on a cost plus basis.
2.3 Suspension. Client may at any time, by written notice to Merrick, suspend further performance of Merrick's
services. Upon receiving notice of suspension,Merrick shall promptly suspend performance of the services to the extent
specified. During the period of a suspension,Merrick shall care for and protect its services in progress. For a period of
ninety(90)days,consecutive or in the aggregate,Client may withdraw the suspension of performance of the services as
to all or part of the suspended services by written notice to Merrick specifying the effective date and scope of withdrawal.
Merrick shall then resume performance of the services for which the suspension was withdrawn. If suspension or delays
last longer than ninety (90) days, Merrick may terminate this Agreement upon written notice to Client. An equitable
adjustment shall be made to Merrick's compensation under Attachment C and to any scheduling or deliverable dates
justified by the suspension or withdrawal of suspension,and this Agreement shall be modified in writing accordingly. In
calculating any equitable adjustment when a suspension is withdrawn, Merrick is entitled to the start-up costs and fees
associated with resuming services.
2.4 Disputed Services.If Merrick disagrees with a request by Client for a non-compensable correction of defects or
errors or omissions in the services,then in addition to or in lieu of the other provisions of this Agreement,Merrick may
request that Client pay additional compensation in performing the services.
Article 3 - Client Responsibilities
3.1 Representatives.Upon the express approval of the Augusta,Georgia Commission,the representative identified
in Article 9 may have, respectively, authority to act for the designated party in all things pertaining to this Agreement
including,without limitation,authority to make changes to the scope of services or request additional services or suspend
services,authority to transmit instructions,receive information,interpret and define policies and decisions with respect to
the services,and to make decisions on that party's behalf when requested to do so by the other party.
3.2 Project Requirements. Client shall cooperate with Merrick in all aspects of the Project and shall provide
information and criteria of Client's requirements for the Project including,without limitation, objectives and constraints,
space,capacity and performance requirements,flexibility and expendability,and any time or budgetary limitations.Client
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shall provide access to the project site,furnish copies of specifications and standards which it will require to be included
in the services,and shall examine and 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 promptly furnish to Merrick written notice of any noncompliance therewith. Client agrees to properly
and adequately scope,insure and allocate risk on the Project.
3.3 Work of Others.Merrick shall not be responsible for taking precautions for protection of the work or safety of
the public through or around the Project operations and Merrick shall not be responsible for the means, methods,
techniques, sequencing or procedures of the work of others. Additional responsibilities of Client may be specified in
Attachment D("Additional Client Responsibilities").
Article 4 - Records , Audit & Documents
4.1 Records,Audit.Merrick shall maintain records of performance and make them available for inspection and audit
(if payment terms are the type capable of audit)by Client at all reasonable times during the course of services and,if Client
is not in default of this Agreement,for a period of two(2)years after performance of services. Audits shall be conducted
in accordance with generally accepted auditing principles consistently applied. Merrick acknowledges that all records
relating to this Agreement and the services to be provided under this Agreement may be a public record subject to Georgia's
Open Records Act.(O.C.G.A.§50-18-70,et seq.). Merrick shall cooperate fully in responding to such request and making
all records,not exempt,available for in section and copying as provided by law. Merrick shall notify Client immediately
of any request made under the Open Records Act and shall furnish Client with a copy of the request and the response to
such request.
4.2 Instruments of Service.Designs,drawings,calculations,specifications,Electronic Data(defined in Attachment
A) and similar services, in either electronic or hard copy form, prepared by Merrick and its lower-tier contractors are
instruments of service,not products or goods,for use solely on the Project("Instruments of Service"). Merrick and its
lower-tier contractors,as authors and owners of their respective Instruments of Service,retain all common law, statutory
and other reserved rights, including copyrights. Distribution of Instruments of Service for regulatory or other Project
purposes is not a publication in derogation of the reserved rights.
4.3 License.Upon execution of this Agreement and so long as Client is not in default of its obligations to Merrick,
Merrick grants Client a nonexclusive license to reproduce all finished Instruments of Service solely for use on the Project
(the"License"),subject to the following: (a)if Client is in default of this Agreement,including instances where Merrick
terminates the Agreement for nonpayment,the License is terminated without the necessity of further action on the part of
the parties; (b)if Client terminates this Agreement for Merrick's default(or for Client's convenience and Client is not in
default of its obligations to Merrick), the License is terminated without the necessity of further action on the part of the
parties and is replaced by a nonexclusive license permitting Client, subject to the other provisions of this Agreement,to
authorize properly credentialed design professionals to reproduce and, where permitted by law, to make changes,
corrections or additions to the Instruments of Service solely for purposes of completing,using and maintaining the Project.
Merrick retains the right to use,sell,and/or modify any databases developed and/or modified in performing its services.
4.4 Reuse of Instruments of Service. The licenses granted are not assignable without Merrick's prior written
consent,and no license or right is granted or implied under this Agreement,except as provided above.The Instruments of
Service and other documents prepared by Merrick and its lower-tier contractors under this Agreement are not intended or
represented to be suitable for reuse by Client or others on extension(s)of the work or any other project.Any such reuse or
unauthorized use by Client without the express written consent of Merrick shall be at Client's sole risk and without liability
or loss exposure to Merrick,and Client shall indemnify,defend and hold Merrick and its lower-tier contractors harmless
from any and all claims,damages,losses and expenses,including reasonable attorney fees,arising out of or resulting from
such unauthorized use or reuse.
4.5 Publicity.Client,its officers and its employees shall not use Merrick's name,publish articles,give press releases,
or make speeches about,or otherwise publicize in any way the results achieved or the services performed by Merrick under
this Agreement,without first obtaining Merrick's written consent,which consent shall not be unreasonably withheld.
4.6 Proprietary Property.At Merrick's expense,Merrick shall defend any suits brought against Client based on a
claim that the use of any design,process,apparatus,or any part,methodology,software,publication,or other proprietary
right ("Proprietary Property") furnished by Merrick under this Agreement constitutes an infringement of any patent,
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trademark, or copyright of the United States;provided that Merrick is notified promptly in writing by Client of such a
claim or contention and given the authority, information, and assistance for the defense (at Merrick's expense) thereof.
Notwithstanding the foregoing,Merrick shall not be liable to Client for claims under this Article resulting from the use of
Proprietary Property that is suggested for use by or on behalf of Client,or that is not developed or proposed by Merrick.
Article 5 - Confidential & Proprietary Information
5.1 Confidential Information.Merrick and Client,to the extent of their rights and abilities to do so,may exchange
technical data and information reasonably required of each to perform this Agreement. It is anticipated these exchanges
will include technical methods,design details,techniques and pricing data of Merrick,together with trade secrets and other
confidential and proprietary information of the parties which, when marked or designated as such in writing, will be
"Confidential Information." To the extent permitted by law, each party will treat as confidential all Confidential
Information and except as necessary for the Project,each party agrees that under no circumstance will it make use of or
disclose Confidential Information to any third party or use Confidential Information to the detriment or competitive
disadvantage of the other party. To the extent permitted by law,each party agrees to limit disclosure of the Confidential
Information to its officers, directors,members,managers, employees and agents and then only to the extent reasonably
necessary to effectuate the purposes of the Project. The party receiving Confidential Information shall take diligent
precautions to see to it that those persons to whom disclosures are made keep the Confidential Information confidential.
5.2 When Restrictions Do Not Apply.These restrictions shall not apply to the extent Confidential Information was
in the public domain at the time of the disclosure or subsequently becomes a part of the public domain through no fault of
the party receiving the Confidential Information;was known to the receiving party at the time of the disclosure;was readily
ascertainable from public or trade sources at the time of its disclosure;was independently developed by the receiving party
without violating the terms of this Agreement; or is the subject of demand by subpoena,court or governmental order or
other similar mandatory legal process in which case the party against whom the demand or request is made shall forthwith
give written notice to the other party to preserve the opportunity to resist and/or respond to such process. Confidential
Information retained in the unaided memories(e.g.no intentional memorization)of the receiving party's employees who
have had access to Confidential Information is not subject to the foregoing.
5.3 Duration.The provisions of this Article shall survive expiration or termination of this Agreement and shall apply
for a period of two(2)years thereafter. In addition to and without prejudice to its other rights and remedies,a party shall
be entitled to injunctive relief upon proof of a breach or threatened breach of this Article.
Article 6 - Indemnification & Risk Allocation
6.1 Indemnification.Merrick agrees to indemnify Client and hold harmless from and against damages, losses and
judgments, including reasonable attorney fees, claimed by third parties for property damage or bodily injury, including
death,caused by the negligence of Merrick in connection with Merrick's professional services. Client agrees to indemnify
Merrick and hold harmless from and against damages,losses and judgments,including reasonable attorney fees,claimed
by third parties for property damage or bodily injury,including death,caused by Client in connection with the Project. If
the negligence or fault 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 responsibility and the right of indemnity shall
apply for such proportion.
6.2 Personnel. It is intended that performance of Merrick's services shall not subject the personnel of either party,
including employees,officers,directors,members,managers and shareholders(collectively,"Personnel"),to any personal
legal exposure for any risk associated with the Project. Each party agrees that any claim, demand or suit shall be made
only against a party and not against any of its Personnel.
6.3 Risk Allocation. Client and Merrick agree that notwithstanding any other provision in this Agreement to the
contrary(including any other provision with the same or similar limiting language),to the fullest extent permitted by law:
(a) the total liability in the aggregate of Merrick and its Personnel and independent professional associates, and any of
them, to Client and anyone claiming by, through or under Client, for any and all injuries, claims, losses, expenses, or
damages whatsoever(including,without limitation,indemnity obligations,contract damages,attorney's fees and expert-
witness fees)arising out of or in any way related to Merrick's services,the Project,or this Agreement,from any cause or
causes whatsoever and regardless of the legal theory asserted,shall not exceed the total compensation received by Merrick
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under this Agreement(or if separate task orders are issued,then the total compensation received by Merrick for services
under each applicable task order); (b) Client and Merrick waive claims against each other: (i) for incidental, special,
indirect,punitive or consequential damages arising out of or relating to this Agreement,and Merrick shall not be liable for
any cost or expense that provides betterment,upgrade or enhancement of the Project;and(ii)and against the contractors,
consultants and employees of the other for damages to the extent that the damages sustained by either Merrick or Client
are covered by property insurance.
6.4 Survival.The provisions of this Article shall survive expiration or termination of this Agreement and shall apply
to all services provided to Client by Merrick,whether within or not within the scope of services of this Agreement,except
as the parties may otherwise provide in a signed writing making specific reference to this Article.
Article 7 - Termination
7.1 Termination for Default.Subject to the other provisions of this Agreement,this Agreement may be terminated
in whole or in part in writing by either party in the event of a substantial failure by the other party to fulfill its obligations
under this Agreement. No such termination shall be effective until the other party is given not less than ten (10) days
written notice of intent to terminate and an opportunity for consultation with the terminating party prior to termination.
7.2 Termination for Convenience.This Agreement may be terminated in whole or in part in writing by Client for
its convenience. No such termination shall be effective until Merrick is given not less than ten(10)days written notice of
intent to terminate and an opportunity for consultation with Client prior to termination.
7.3 Document Turnover.Upon receipt of a notice of termination,Merrick shall promptly discontinue all services
affected(unless the notice directs otherwise and Client is not in default). If Client is not in default of this Agreement,
Merrick shall deliver or otherwise make available to Client all finished services, subject to the terms and conditions of
Article 4;provided,however,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.
7.4 Payment on Termination. Subject to the provisions of Attachment C,following termination of this agreement,
Merrick shall be paid for its costs and services performed,less allowances for negligent services which must be corrected.
Article 8 - Dispute Resolution
8.1 Mediation. The parties agree to engage in good faith efforts to resolve disputes through alternative dispute
resolution such as mediation and arbitration.
8.2 Litigation.Any claim,dispute,or other matter in question arising out of or related to this Agreement subject to,
but not resolved by,alternative dispute resolution may be subject to litigation.
Article 9 - General
9.1 Conflict of Interest,No Contingent Fees.Merrick represents it has no known direct or indirect interest,which
would conflict with the performance of its services under this Agreement.Except as disclosed to Client and except for the
compensation to be paid hereunder,Merrick represents it has not directly or indirectly paid or agreed to pay any person or
company any fee,commission,contribution,donation,gift,or any other type of consideration to solicit or secure an award
of this Agreement.
9.2 Subcontracts.Except as provided in the Attachments,Merrick shall not subcontract any part of its services under
this Agreement without first providing notice to Client. Merrick shall obligate each subcontractor of every tier to consent
to compliance with all applicable provisions of this Agreement. Nothing contained in any subcontract of any tier shall
create a contractual relationship between Client and any such subcontractor.
9.3 Governing Law&Costs. This Agreement shall be governed by the laws of Georgia without reference to conflict
of law principles,if any. In the event of an action to enforce the terms and conditions of this Agreement or of any of
the rights or obligations arising from this Agreement,the prevailing party shall be awarded the costs of such action,
including reasonable attorney fees and expert witness and consulting fees. All claims,disputes and other matters in
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question between the Client and Merrick arising out of or relating to the Agreement,or the breach thereof,shall be
decided in the Superior Court of Richmond County,Georgia. Merrick,by executing this Agreement,specifically
consents to venue in Richmond County and waives any right to contest the venue in the Superior Court of
Richmond County,Georgia.
9.4 Entire Agreement,Amendments. This Agreement sets forth the entire agreement of the parties,supersedes all
prior negotiations and understandings,and governs any services by Merrick prior to execution of this Agreement. Except
as otherwise expressly provided in this Agreement, this Agreement may be modified or amended only upon the signed
written agreement of both parties. Merrick shall not be required to execute any documents subsequent to the signing of
this Agreement that increase Merrick's contractual or legal obligations or risks,or jeopardize the availability of or increase
the cost of its insurance, and Client shall make no request of Merrick that would be contrary to Merrick's professional
responsibilities. Merrick and Client have each read and fully understand the terms of this Agreement, each has had the
opportunity to have it reviewed by counsel,and this Agreement shall be construed evenly and not against or in favor of a
party in the event of an ambiguity.
9.5 Severability. If any provision of this Agreement is held to be invalid or unenforceable by an authority with
competent jurisdiction,the remainder of this Agreement shall be unaffected and enforceable, and there shall be deemed
substituted for the affected provision a valid and enforceable provision as similar as possible to the affected provision.
9.6 Assignment. This Agreement is for personal services and,except for subcontracting contemplated to perform
the services; neither party may assign its rights nor delegate the performance of its duties hereunder without the prior
written approval of the other party. Any assignment, voluntary or involuntary, in violation of the foregoing shall be
voidable.
9.7 Third Party Beneficiaries.Nothing in this Agreement,express or implied, shall confer any rights or remedies
upon, or create any contractual relationship with or cause of action in favor of any third party. This Agreement is not
intended to benefit any third party,except as expressly provided.
9.8 Successors and Approved Assigns. This Agreement shall inure to the benefit of and shall be binding upon the
parties and their respective legal representatives,successors,and approved assigns.
9.9 Non-Waiver. No delay or failure by either party to exercise any right under this Agreement,and no partial or
single exercise of that right shall constitute a waiver of that or any other right.
9.10 Independent Contractor. Merrick shall perform its services as an independent contractor and not as an agent,
employee,fiduciary,representative,joint venturer or partner of Client.
9.11 Force Majeure. Merrick shall not be in default of its obligations if performance is prevented or delayed by an
existing or future force majeure condition or any other cause beyond the reasonable control of a party to this Agreement
including, without limitation, act of government, act of God, act of Client or Client's contractor, meteorological
phenomenon, power failures or blackouts, strike, shortage of labor or materials, insurrection, embargo, fire, flood,
earthquake,electromagnetic interference,explosion,riot,wars or armed conflicts,rebellion,civil disobedience,sabotage,
epidemic,emergencies or natural disasters.
9.12 Notices&Authorized Representatives.
Authorized representatives of Client and Merrick are:
Client: Augusta,Georgia Administrator Merrick:
Technical:Director of Engineering Technical: Richard McLaughlin
Contractual: Augusta,Georgia Administrator Contractual: Carter E.Boardman
Modifications or amendments required or permitted under this Agreement should be made by the Contractual
Representatives, and technical directions and communications concerning the services should be made by the Technical
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Representatives. Change of an authorized representative should be made in writing but may be effected by course of
conduct without writing.
Notice required or permitted hereunder shall be in email format or 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(1)
email,(2)hand delivery,or(3)certified mail(postage prepaid&return receipt requested),delivered as follows:
Merrick: Client:'I U
5970 Greenwood Plaza Blvd. / $ Ct
Greenwood Village,Colorado 80111 5 l ^`'S ' ')1 Quik 9/D
Attn:Richard McLaughlin Attn: fDm�n S
Telephone No.:(303)751-0741 Telephone No.: 1 00 2)r 2,900
Facsimile No.:(303)751-2581 Facsimile No.: 7DI0 2 i 2 i'.;1) J
Email:rick.mclaughlin@merrick.com Email: ��,tJ LI 11 l�) "�'�,,,(�'�
' vbn�v
ee
or at such other address as a party hereto may designate by written notice. Notice shall be e e e ive the date of
delivery if hand delivered or faxed(to be an effective notice by fax,there must be a written confirmation of the date and
time of the transmission,generated contemporaneously by the transmission device in the ordinary course),or on the third
day after mailing if sent by certified mail.
9.13 Headings. The captions and headings of this Agreement are for convenience and reference only, and do not
affect the construction or interpretation of any of its provisions.
9.14 Pronouns&Terms. In this Agreement the singular includes the plural,the plural the singular, and the use of
any gender is applicable to all genders.
9.15 Continuing Anti-Corruption Covenant. Client covenants and agrees throughout the duration of this agreement
that it shall,and shall cause each of its affiliates and any other person or firm working on behalf of Client,as well as each
of their respective directors, officers, managers, members, employees, subcontractors, and agents, to: (a) at all times,
strictly comply with all applicable anti-corruption laws including, without limitation,the U.S.Foreign Corrupt Practices
Act(the"FCPA")and the U.K.Bribery Act(the"U.K.Bribery Act");(b)not directly or indirectly offer or accept anything
of value to improperly obtain or retain business;(c)provide training on applicable anti-corruption laws,including but not
limited to the FCPA and the U.K. Bribery Act; and (d) promptly and thoroughly investigate any indication of non-
compliance with applicable anti-corruption laws and to timely report and remediate same,including cooperation with any
governmental investigation in respect thereof.
9.16 Counterparts. This Agreement may be executed in multiple original,facsimile or electronic counterparts,each
of which shall be deemed an original but all of which together shall constitute one and the same instrument.
Incorporation of Attachments
The following Attachments are incorporated into and made a part of this Agreement:
A-Form of Work Order&Additional Services
B-Insurance
C-Compensation
D-Additional Client Responsibilities
E—Proposal of April 30,2018
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IN WITNESS WHEREOF,the parties execute this Agreement as of the effective date first written above.
Augusta,Georgia Merrick&Company
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Attachments
A—Form of Work Order&Additional Services
B--Insurance
C--Compensation
D—Client Responsibilities
E- Proposal of April 30,2018
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Attachment A
Form of Work Order & Additional Services
A.1 Form of Work Order
Form of Work Order
BETWEEN
CLIENT
AND
MERRICK&COMPANY
MERRICK PROJECT NO.:
WORK ORDER NO.: #1
DATE OF WORK ORDER:
WORK ORDER TITLE:Whitewater Reconnaissance and Concept Development Savannah River
SCOPE OF SERVICES: All services included in the proposal,attached hereto as Attachment E.
SCHEDULE: All work to be performed on or before June 15, 2018, unless otherwise agreed upon in writing by
Augusta,Georgia.
FEE:As identified in Attachment E.
CLIENT MERRICK&COMPANY
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A.2 Additional Services
The following services,and any other services not specifically described in Statement of Services,are not included in
Merrick's basic services. An undertaking for Additional Services shall not be presumed by course of conduct or
custom in the industry. Additional Services may be provided if authorized by Client in writing and approved by the
Augusta,Georgia Commission. Additional Services shall be paid by Client as provided in the Agreement,in addition
to the compensation for Merrick's basic services.
A.2.1.Providing financial feasibility or other special studies.
A.2.2.Providing planning surveys,site evaluations,environmental studies or comparative studies of prospective sites,
and preparing special surveys, studies and submissions required for approval of governmental authorities or others
having jurisdiction over the Project.
A.2.3.Providing services relative to future facilities,systems and equipment,which are not intended to be constructed
during the Construction Phase.
A.2.4. Preparing documents of alternate, separate or sequential bids or extra services in connection with bidding,
negotiation or construction prior to the completion of the Construction Documents Phase,when requested by Client.
A.2.5.Providing coordination of Work performed by separate contractors or by Client's own forces.
A.2.6. Providing services in connection with the work of a construction manager or separate consultants retained by
Client except as provided elsewhere in this agreement.
A.2.7.Providing Detailed Estimates of Construction Cost,analyses of owning and operating costs,or detailed quantity
surveys or inventories of materials,equipment and labor.
A.2.8. Providing interior design and other similar services required for or in connection with the selection,
procurement or installation of furniture,furnishings and related equipment other than permanently installed laboratory
case work and equipment,if beyond the scope of this Project.
A.2.9. Making revisions in Drawings, Specifications or other documents when such revisions are inconsistent with
written approvals or instructions previously given, are required by the enactment or revision of codes laws or
regulations subsequent to the preparation of such documents or are due to other causes not solely within the control
of Merrick.
A.2.10. Preparing as-built drawings, or preparing drawings, specifications and supporting data and providing other
services in connection with Change Orders to the extent that the adjustment in the basic Compensation resulting from
the adjusted Construction Cost is not commensurate with the services required of Merrick, provided such Change
Orders are required by causes not solely within the control of Merrick.
A.2.11.Making investigations,surveys,valuations,inventories or detailed appraisals of existing facilities,and services
required in connection with construction performed by Client or others.
A.2.12. Providing consultation concerning replacement of any Work damaged by fire or other cause during
construction,and furnishing services as may be required in connection with the replacement of such Work.
A.2.13. Providing services made necessary by the default of the Contractor or others, or by major defects or
deficiencies in the Work of the Contractor or others, or by failure of performance of either the Client or Prime
Contractor under the Contract for Construction.
A.2.14. Preparing a set of reproducible record drawings showing significant changes in the Work made during
construction based on marked-up prints,drawings and other data furnished to Merrick.
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A.2.15.Providing extensive assistance in the utilization of any equipment or system such as initial start-up or testing,
adjusting and balancing, preparation of operation and maintenance manuals, training personnel for operation and
maintenance,and consultation during operation.
A.2.16.Providing services after issuance to the Client of the final Certificate of Occupancy.
A.2.17.Preparing to serve or serving as an expert witness in connection with any public hearing,arbitration proceeding
or legal proceeding.
A.2.18.Providing services of consultants for other than the normal architectural,structural,mechanical and electrical
engineering services of the Project.
A.2.19.Providing any other services not otherwise specifically included in this Agreement.
A.2.20 Claims arbiter service,including interpretation and decisions on matters concerning performance of Client and
any contractor.
A.3 Provisions Applicable to all Services
A.3.1. RFI's. When it is within its scope to make written responses to requests from a contractor for clarification
and interpretation of the requirements of the contract documents("RFI"),Merrick shall provide written responses to
such RFI's with reasonable promptness, anticipated to be an average of five (5) business days. If an RFI seeks
information readily apparent from reasonable observation of field conditions or a review of the contract documents
(or reasonably inferable therefrom), Merrick shall be entitled to additional compensation for the time spent in
responding to such an RFI.
A.3.2. Shop Drawings. When it is within its scope to review and approve or take other appropriate action on the
contractor submittals, such as shop drawings,product data, samples and other data,which a contractor is required to
submit,Merrick shall do so but only for the limited purpose of checking for conformance with the design concept and
the information shown in the construction documents. Such review shall be provided with reasonable promptness,
anticipated to be an average of fifteen (15) business days. This review shall not include review of the accuracy or
completeness of details,such as quantities,dimensions,weights or gauges,fabrication processes,construction means
or methods, coordination of the work with other trades or construction safety precautions, all of which are the sole
responsibility of the contractor or others. Review of a specific item shall not indicate that Merrick has reviewed the
entire assembly of which the item is a component. Merrick shall not be responsible for any deviations from the
construction documents not brought to the attention of Merrick in writing by the contractor. Merrick shall not be
required to review partial submissions or those for which submissions of correlated items have not been received.
A.3.3. Work Rejection of Contractors.Merrick shall have the authority to reject any work that is not,in the judgment
of Merrick, in conformance with the construction documents or work plans. Neither this authority nor Merrick's
good-faith judgment to reject or not reject any work shall subject Merrick to any liability or cause of action to the
contractor, subcontractor or any other suppliers or persons performing work on the project, and Client agrees to
indemnify, defend and hold Merrick harmless from any and all damages, losses, liabilities and expenses, including
attorney fees and expert and consulting fees,arising out of or resulting from such claim.
A.3.4. Certifications. Merrick shall be under no duty or obligation to execute any instruments, no matter by who
requested, that would result in Merrick having to certify, guarantee or warrant the existence or nonexistence of
conditions that Merrick cannot ascertain,or that were not within the scope of services.When a certification by Merrick
is within the scope of its services or otherwise made,such certification means an expression of Merrick's professional
opinion based on its information, knowledge and belief. It does not constitute a warranty or guarantee or have any
meaning expanded beyond the foregoing definition.
A.3.5. Accurate Data. Unless the scope of services in Attachment A includes an explicit undertaking by Merrick to
confirm the accuracy of plans, drawings, specifications, criteria, maps, surveys or other documents or information
furnished by or on behalf of Client("Client Data"),Merrick shall be entitled to rely upon Client Data as accurate and
correct without investigation. If subsequent errors are discovered in Client Data which necessitate re-performance of
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services,Merrick shall be compensated for such extra services. Merrick shall not be liable for errors or omissions in
Client Data.
A.3.6. Cost Estimates. Since Merrick has no control over such things as the cost or availability of labor,materials,
equipment or services furnished by others, nor over any contractors' method of determining prices, nor over
competitive bidding or market conditions,any cost estimate provided for under this Agreement or otherwise made by
Merrick shall be on the basis of Merrick's professional experience and judgment; but Merrick cannot and does not
guarantee or warrant that the bids or negotiated costs will not vary from estimates prepared by Merrick. If Client
wishes greater assurance as to cost estimates,Client shall employ an independent cost estimator.
A.3.7. Extra Services. Extra services by Merrick to modify its services or deliverables to meet any Client imposed
cost limitation shall entitle Merrick to additional compensation.
A.3.8. Contractors' Work. Design review, construction observation, or quality assurance services performed by
Merrick shall not guarantee the performance of and Merrick shall not have responsibility or liability for damages
arising from the acts or omissions of any contractor, subcontractor, supplier or any other entity or person furnishing
materials or performing any work on the Project.
A.3.9 Construction Observation.The following applies in the event Client requests that Merrick evaluate,monitor or
observe construction,regardless of the name given to such services.Merrick will visit the site at intervals appropriate
to the stage of construction,or as otherwise agreed to in writing by Client and Merrick,in order to observe the progress
and quality of the work completed by the contractor. Such visits and observation are not intended to be an exhaustive
check or a detailed inspection of the contractor's work but rather are to allow Merrick to become generally familiar
with the work in progress and to determine,in general, if the work is proceeding in accordance with the construction
documents. Based on this general observation,Merrick will inform Client about the progress of the work and advise
Client about observed deficiencies in the work.If Client desires more extensive project observation or full-time project
representation,Client will request that such services be provided by Merrick as additional services in accordance with
the terms of this Agreement. Merrick will not supervise, direct or have control over contractors' work nor have any
responsibility for the construction means,methods,techniques,sequences or procedures selected by a contractor,nor
for a contractor's safety precautions or programs in connection with the work. Client agrees to assign these
responsibilities to an appropriate party.Merrick will not be responsible for any acts or omissions of a contractor,any
subcontractor, any entity performing any portions of the work or any agents or employees of any of them. Merrick
does not guarantee the performance of any contractor and will not be responsible for a contractor's failure to perform
its work in accordance with the applicable documents or law.
A.3.10. Design without Construction Administration.The following is applicable if Merrick's services do not include
Project observation or review of contractor's performance or any other construction phase services,and such services
are provided by Client or by a third-party on its behalf: (a) Client assumes full responsibility for interpretation of the
contract documents and for construction observation;(b)Client waives claims against Merrick in any way connected
thereto;(c)Client agrees,to the fullest extent permitted by law,to indemnify,defend and hold Merrick harmless from
any and all claims, damages, losses, liabilities and expenses, including attorney fees and expert and consulting fees,
arising out of or resulting from claims arising from modifications, clarifications, interpretations, adjustments or
changes made to the contract documents to reflect changed field or other conditions, except for claims caused by the
sole negligence or willful misconduct of Merrick.
A.3.11. Hazardous Materials. In the event Merrick or any other party encounters hazardous materials at the jobsite,
or should it become known in any way that hazardous materials may be present at the jobsite or any adjacent areas
that may affect the performance of Merrick's services,Merrick may,at its option and without liability for consequential
or any other damages, suspend performance of its services until Client retains an appropriate specialist to identify,
abate and/or remove the hazardous materials, and warrant that the jobsite is in compliance with applicable laws and
regulations. Since Merrick's scope of services does not include services related to the presence of hazardous materials,
hazardous materials encountered in the performance of Merrick's services shall be the responsibility of Client, and
Client waives all claims and causes of action against Merrick in connection with hazardous materials. As used in this
section, "hazardous materials"is defined in its broadest sense.
A.3.12 ADA. Since the Americans with Disabilities Act contains general provisions subject to differing
interpretations on a case-by-case basis,services in connection therewith shall be on the basis of Merrick's professional
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experience and judgment but Merrick cannot and does not guarantee or warrant its services will be in compliance
therewith.
A.3.13 BIM. The following is applicable if the Project will be designed using Building Information Modeling
("BIM"). BIM's intent is to assist the Client's and the design teams' understanding and coordination of the design,
but it may not necessarily result in savings for Client or reduce or eliminate change orders or construction coordination
issues. Merrick recommends that Client maintain a reasonable contingency in the estimate and budget for design
errors or omissions and design coordination change orders. In the event of an error or omission in the services,Client
agrees to give prompt written notice to Merrick,and Merrick agrees at no additional cost to Client to design,document
and process corrective measures. There are no representations or expectations regarding BIM, except as provided in
this Agreement.
A.3.13.1 BIM produced by Merrick and any Merrick Consultants are for design intent only and are not
intended to be used for construction coordination, fabrication, estimating, quantity takeoffs, sequencing or
other construction purposes. BIM models may be developed to various levels of detail(e.g. LOD 100,200,
or 300). The level of development of the model shall be defined between the parties. BIM also allows"clash
detection"to show interferences with the design. If clash detection is provided specific parameters for clash
detection shall be defined by Merrick which may include interference distances,materials or systems between
which clash detection is to be performed,frequency and level of design completion at which clash detection
will be performed.
A.3.14 Electronic Data. The following is applicable if Merrick provides Client with electronic data created by
Merrick for the Project,including,as applicable,CAD files and BIM data(collectively,"Electronic Data"). Electronic
Data does not include vendor,fabricator,contractor or any third party supplied electronic data.
A.3.14.1 Subject to the scope of services,Merrick will make Electronic Data in an original format produced
by Merrick available to Client at the end of Schematic Design Phase,the end of Design Development Phase,
the end of the Construction Document Phase, and at the time Construction Bid Packages are issued, as
applicable. When distributing Electronic Data, Client agrees to make its use by third parties subject to the
following conditions(the"Disclaimer"):
A.3.14.2,see below:
Recipient acknowledges and agrees to the following by its acceptance or
utilization of the Data(defined below)and to the additional terms and conditions
of the Agreement between Merrick and its Client on the Project:
Designs, drawings, calculations, specifications, Electronic Data, CAD files and
similar services, in either electronic or hard copy form,prepared by Merrick are
instruments of service for use solely on the Project(collectively, "Data"). Data
does not constitute the sale or delivery of products or goods. Merrick, owner of
the Data,retains all reserved rights,including copyrights.Client's non-assignable
license to use Data is subject to termination for violation of the terms of use or if
Client is in default of its Agreement with Merrick. Improper use or any reuse of
Data after termination of the Merrick/Client Agreement or upon suspension or
completion of the Project are at recipient's sole risk and without liability to
Merrick, and each recipient waives all claims against (regardless of the legal
theory)and agrees to indemnify,defend and hold Merrick harmless from any and
all claims, damages, losses, liabilities and expenses, including attorney fees and
expert and consulting fees, arising out of or resulting from such use or reuse.No
privity of contract with Merrick is created by access to Data, and no independent
right of action against Merrick or its personnel is created thereby including,
without limitation, third-party beneficiary or fiduciary status. There are no
warranties or guaranties, either express or implied, of any kind, nature or type
whatsoever(including those of condition, merchantability, suitability and fitness
for a particular purpose or use) regarding the Data, and all such warranties and
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guaranties are expressly disclaimed. Electronic transfer from one system to
another can generate errors in Data,thereby making it unreliable;consequently in
the event of a difference between Data and hard-copy Construction Documents,
the later controls.
A.3.14.3 Merrick will transfer Electronic Data in accordance with its customary practice under the
circumstances which may include electronic mail, File Transfer Protocol sites, secure project websites, or
disc copies.Because the current state of technology does not allow for transfer from one system or format to
another without the possibility of generating errors: (1) no representation or warranty, express or implied,
can be or is made regarding the reliability or accuracy of Electronic Data; (2) in the event of a difference
between Electronic Data and hard-copy Construction Documents,the later controls;(3)Client agrees Merrick
is not liable for,and Client waives claims against,and agrees to indemnify,defend and hold Merrick harmless
from any and all claims, damages, losses, liabilities and expenses, including attorney fees and expert and
consulting fees, arising out of: (a) Client's failure to make use of Electronic Data by third parties subject to
the Disclaimer; (b)Client's transfer of Electronic Data by any means; (c)use,modification or misuse of the
Electronic Data by parties other than Merrick; (d) the limited life expectancy and decline of accuracy or
readability of the Electronic Data over time; (e) use of electronic Data by third parties receiving it; (0 the
incompatibility of software or hardware used by Merrick. Client agrees to include language similar to the
foregoing in its agreements with other firms working on the Project who will have access to Electronic Data.
A.3.15 LEED® The following is applicable if the LEED® or any Green Building Rating System or other similar
environmental guidelines(collectively"LEED®")is used on the Project. LEED®utilizes certain design and usability
recommendations to promote an environmentally friendly and energy efficient facility.In addressing these guidelines,
Merrick shall perform its services consistent with the Standard of Care. Because LEED® is subject to various and
possibly contradictory interpretations and certification or decisions by third parties, compliance may involve factors
beyond the control of Merrick including, but not limited to, the Client's use and operation of the completed Project.
Therefore,Merrick cannot and does not warrant or represent that the Project will achieve LEED®certification.
A.3.15.1 Merrick shall not be responsible for contractors' failure to adhere to the contract documents and
applicable law,nor for any changes to the design made by Client without Merrick's direct participation and
written approval. Likewise,Merrick shall not be responsible for any environmental or energy issues arising
out of Client's use and operation of the completed Project.
A.3.15.2 Client acknowledges that the achievement of LEED®certification is subject to third parties over
whom Merrick has no control,and may require the cooperation of Client,the contractors and others.Utilizing
LEED®may impact the available design and product options and may impact the overall cost,schedule and
performance of the completed project, and may involve the use of untested, experimental green products.
Client accepts these potential impacts in recognition of the importance it has placed on the values of a LEED®
building. As applicable, Client agrees to execute Merrick's standard form "Client Waiver and Informed
Consent to use Experimental Green Products."
A.3.15.3 If Client's program includes goals or requirements for Project energy usage, energy related tax
credits, deductions, incentives, etc., Client agrees to timely confirm such goals and usage in writing to
Merrick. Client agrees it will review and execute all agreements that are a part of the LEED®certification
process and be responsible for the LEED® application. Client waives any and all claims and damages,
including consequential damages,against Merrick if LEED®certification for the Project is discontinued.If
Energy Modeling is included in the scope, Client acknowledges that, per ASHRAE 90.1: "Neither the
proposed building performance nor the baseline building performance are predictions of actual energy
consumption or costs for the proposed design after construction. Actual experience will differ from these
calculations due to variations such as occupancy, building operation and maintenance, weather, energy use
not covered by this procedure, changes in energy rates between design of the building and occupancy, and
the precision of the calculation tool." If an Energy Audit is included in the scope, any cost or savings
estimates provided by Merrick are strictly estimates and not guarantees of performance.
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A.3.16 Procurement Agent The following is applicable if Merrick performs procurement services as agent for Client.
Client will provide either through itself or through others the schedule, budget and all other necessary information to
perform the services including, without limitation, plans, drawings, sketches, schematics, studies, reports, calculations,
specifications,drawdown schedules,payment requisitions,construction schedules.Except as limited in Merrick's scope,
Merrick is authorized to perform all applicable procurement services including,without limitation,negotiating and entering
into contracts,purchase orders or other arrangements with third parties (collectively, "Vendor Agreements"), including
change or cancellation orders, in Client's name. Client agrees to promptly and timely review and execute Vendor
Agreements, and pay vendors according to their terms and conditions. Merrick agrees to take reasonable steps, in
accordance with the Standard of Care,to minimize delays and demand that vendors comply with their Vendor Agreements,
but Merrick cannot and does not warrant or guarantee performance by these firms.Procurement services are professional
services,not the sale of goods. Merrick makes no warranties,representations or guaranties,either express or implied,of
any kind, nature or type whatsoever(including those of condition, merchantability, suitability or fitness for a particular
purpose or use,or abilities of vendors),and expressly disclaims them regarding the materials and services. Client waives
all such claims against Merrick and agrees to look solely to the warranties,representations or guaranties given or made by
vendors, if any. When it is within Merrick's scope to negotiate terms of Vendor Agreements,Merrick will endeavor to
secure favorable commercial terms,but there can be no assurance Merrick will be successful in doing so. Consequently,
Client's signature on a Vendor Agreement, or Merrick's submission of a Vendor Agreement to Client for approval, as
applicable,shall constitute Client's acceptance and ratification of its terms and conditions. Client agrees to promptly and
timely examine and respond to Merrick's submissions. Men-ick agrees at all times to contract with vendors in Client's
name,with Merrick as agent for Client,and for title to be issued in Client's name.Each Vendor Agreement shall identify
Client as the principal,and Merrick as agent authorized to act on behalf of Client and language to the effect that"Vendor
covenants and agrees that any claim under the Vendor Agreement shall be made against Client only,Vendor waiving any
and all claims against Merrick regardless of the legal theory."
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Attachment B
Schedule of Insurance
Merrick shall maintain during the term of this Agreement and,if Client is not in default hereunder,for a period of two
(2)years after performance of Merrick's services,insurance of the kinds and with the limits indicated below:
Worker's Compensation Insurance as required by statute,including Employers Liability,with limits of$1,000,000
each accident; $1,000,000 disease-policy limit; $1,000,000 disease-each employee.
Commercial General Liability Insurance with limits of$1,000,000 per occurrence and$2,000,000 aggregate.
Business Automobile Liability Insurance with limits of$1,000,000 per occurrence,combined single limits(owned,
hired&non-owned).
Umbrella/Excess Liability Insurance with limits of$3,000,000 per occurrence.
Professional Liability Practice Policy with limits of$1,000,000 per claim and$2,000,000 annual aggregate.
Certificates of insurance evidencing these coverages shall be submitted to Client at the commencement of Merrick's
services. The coverages are subject to the terms,exclusions and conditions of the policies with the insurer's liability
equivalent to Merrick's under this Agreement when a covered claim has limits in excess of Merrick's liability. Merrick
will provide the Client a 30-day advance written notice of cancellation. Failure to submit the certificates or
endorsements or failure of Client to insist upon submission shall not relieve Merrick of its duty to maintain the required
insurance.
Unless otherwise provided, Client shall maintain insurance upon the entire work at the site to the full insurable value
thereof. This insurance shall include the interests of Client, the owner, Merrick, any other beneficially interested
person or entity,and shall insure against the perils of fire and extended coverage and shall include"all risk"insurance
for loss or damage. If Client does not intend to maintain such insurance,Client shall inform Merrick in writing prior
to commencement of Merrick's services in which case, at the option of Merrick, Merrick may then obtain insurance
to protect its interests. If Merrick is damaged by failure of Client to maintain such insurance and to so notify Merrick,
then Client shall bear all costs properly attributable thereto. Client shall require that all contractors of any tier on this
project obtain and maintain insurance, with appropriate limits, to cover the perils of their undertakings and the
allocation of risk on the Project.
To the extent damages are covered by property insurance whether within a deductible, self-insured layer, Client and
Merrick and their insurers waive all rights against each other and against the contractors, consultants, agents, and
employees of the other for damages,except such rights as they may have to the proceeds of such insurance. Client or
Merrick, as appropriate, shall require of the contractors, consultants, agents, and employees of any of them similar
waivers in favor of the other parties enumerated herein.
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Attachment C
Compensation
C.1.Payment Provisions
C.1.1 The amount to be paid to Merrick for the services provided for in this agreement is$$39,977.
C.2.Provisions Applicable to all forms of Payment
C.2.1. Client shall make an initial payment of$0.00 as a retainer upon execution of this Agreement.Upon receipt
of the retainer Merrick shall commence services. The retainer shall be held by Merrick and applied against the final
invoice. If the amount of the retainer exceeds the final invoice,Merrick shall refund the balance with the final invoice.
If the final invoice exceeds the retainer, Client shall promptly remit the amount due. Interest earned on the retainer
shall in all instances be for the account of Merrick and shall not be included in any refund or remittance calculation.
C.2.2. Except where the payment provisions above provide or require otherwise,Merrick shall submit invoices to
Client on a periodic basis with a summary of services performed in accordance with Merrick's standard invoicing
practices. Client shall notify Merrick of any objection within sixty(60)calendar days of the invoice date,identifying
the reasons there for in writing and timely paying that portion of the invoice not in dispute. Invoices will be considered
acceptable to Client if no such objections are made.
C.2.3. Unless otherwise provided in this Agreement,payment is due upon presentment of an invoice. Invoices not
paid within thirty(30)days of presentment(except any portion of an invoiced amount in dispute and resolved in favor
of Client)shall accrue interest at the rate of 1.5 percent per month,compounded annually. Interest shall be calculated
from the date of an invoice, with payments credited first to interest and then to principal. If Merrick and Client are
unable to resolve any invoice dispute within sixty(60) days of the invoice, Client agrees on the sixtieth(60th)day to
pay the disputed amount into the Escrow Account and thereafter be subject to the dispute resolution procedures in
Article 8. The Escrow Account shall be established by a nationally recognized institution, who shall administer the
Escrow Account as Escrow Agent. The Escrow Agent has instructions to pay disputed funds placed in the Escrow
Account to the winner of the dispute resolution,or upon agreement of Merrick and Client,whichever is first to occur.
Any interest accrued shall be given to the prevailing party or as otherwise agreed between the parties.
C.2.4. Payment to Merrick shall not be withheld,postponed or made contingent on the construction,completion or
success of the project or upon receipt by Client of offsetting reimbursement or credit from other parties who may have
caused additional services or expenses. No withholdings, deductions or offsets shall be made from Merrick's
compensation for any reason except upon compliance with the certification requirements of Article 8.
C.2.5. Timely payment by Client to Merrick is a material part of the consideration of this Agreement.
Notwithstanding any other provision of this Agreement to the contrary,including any other provision with the same
or similar limiting language,if timely payment is not made Merrick may,without limiting any other rights or
remedies it may have and without incurring liability to Client or others for damages,including special,indirect,or
consequential damages: (a)suspend services or terminate this Agreement;and/or(b)terminate Client's ownership
rights in the Instruments of Service;and/or(c)exercise any and all other remedies available at law or in equity,in
conjunction with or separately from the foregoing.
C.2.6. If during the term of this Agreement circumstances or conditions that were not originally contemplated by or
known to Merrick are revealed,to the extent that they affect the scope of services,compensation,schedule,allocation
of risks or other material terms of this Agreement,Merrick may call for renegotiation of appropriate portions of this
Agreement. Merrick shall notify Client of the changed conditions necessitating renegotiation,and Merrick and Client
shall promptly and in good faith enter into renegotiation of this Agreement. If terms cannot be agreed to,either party
may then terminate this Agreement.
C.2.7. In the event of an action to enforce the payment terms and conditions of this Agreement, Merrick shall be
awarded the costs and expenses of such action, including attorney fees, expert witness and consulting fees, and the
value of Merrick's time and expenses spent in connection with such collection action, computed according to
Merrick's prevailing fee schedule and expense policy.
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Attachment D
Additional Client Responsibilities
As identified in Attachment E including:
The following tasks we expect to be performed by the City staff:
1. Provide background and base information.
2. Coordinate stakeholder meeting including identifying attendings, invitations, logistics, and location.
3. City Forester or Arborist to identify trees that must be preserved or trees that need to be removed.
Provide mapping to Wenk Associates.
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Attachment E
Work Plan
Based upon our site visit and the RFP,we have developed a proposed work plan for this initial assessment.
Our proposed plan is outlined below and includes:
Review of readily available plans and data - presumably provided by the USACE,
A one-day site assessment with interested parties followed by a meeting with stakeholder groups,
Commission Members, City Staff, etc.; and
Cursory-level concept development.
The concept development will be for integration of whitewater features into two options proposed by the
USACE. This will be based on our observations, and experience and knowledge of similar projects.
Task 1—Information Gathering and Review
Prior to visiting the site
1. Our team will review and summarize selected literature and data, including:
a. Hydrology from USGS Streamstats(available online)
2. We will also review available Information/data to be provided by Client and the USACE, including:
a. Prior reports and studies (e.g. zoning and masterplans)
b. Proposed development drawings and concepts
c. Base map with topography, buildings, public utilities property lines, streets and geo-rectified,
high-resolution aerial photo background.AutoCAD dwg file format.
3. We will follow up by conducting a phone meeting with the USACE, then arrange a site visit.
Our team will provide the following deliverables for Task 1:
Provide notes from phone call with the USACE
Develop a list of information to be acquired or requiring assistance in attaining by the client. This will be
determined during the information gathering stage but would likely include park plans, utility plans,
plans of the dam, and all documentation and studies available from the USACE. It is not certain how
long this will take, however an estimate of 10 to 30 hours seems appropriate if the requested
information is readily organized and available
Set a date for a site visit
Milestones
Our team will set the site visit and meeting date
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Task 2—Site Visit
Gathering and reviewing the information from Task 1, our team will conduct a one-day visit (2 days +
including travel) to Augusta to assess potential locations; meet with the client and with key stakeholders
on an as-available basis. (Invites and meeting arrangements by client.)
The following are suggested stakeholders to invite, at the client's option:
Augusta Commission,
Augusta Recreation and Parks personnel,
Augusta Regional Airport Commission,
Augusta Utilities Department,
Savannah Riverkeeper, the Sports Council and Augusta Convention and Visitors Bureau, local fishing
community,
Representatives from local neighborhood associations and any other stakeholders invited by Augusta.
Discussions with these stakeholders will include whitewater ideas and potential at site visit, identifying
goals/objectives and constraints, options for whitewater features, public access, safety, and viewing
areas. We will prepare an informational PowerPoint presentation for client to support discussions. The
client will provide a meeting space and coordinate with the stakeholders in advance of meetings.
Task 3—Concept Development Memorandum
Our team will prepare up to three schematic concepts for the in-river amenities. The schemes will be
based on options proposed by the USACE, along with our experience of what is appropriate for the
potential of the site, client objectives, and with consideration of likely permitting issues and other
constraints. We will conduct a follow-up phone meeting with the USACE to discuss and outline general
requirements related to fish passage and other likely permitting issues. The client would be invited to
participate, and results will be summarized in the memorandum. It is noted that the permitting process
and subsequent approvals cannot be conducted until a subsequent detailed preliminary or final design
effort. These concepts will be based on available aerial imagery and topographic information provided to
MWDG by the client. The goal of this effort is to develop a schematic that shows approximate locations
and gross sizing of the major components of proposed in-river features. The schematic will also include
ideas for upland areas and potential amenities — viewing areas, seating areas, and access - all to be
investigated in a separate, subsequent Preliminary Design Phase.
The MWDG team will prepare a memorandum regarding whitewater feasibility for those three potential
concepts. The memorandum will describe general project objectives, and major constraints, hydrology,
whitewater recreation potential, typical project schedule information, and recommended next steps. A
planning level project cost estimate will be provided for the three concepts. This level project cost
estimate will be based on experience with other projects, but no design or quantity take-off will be
conducted. (Note: a detailed preliminary design effort (30%) is usually required to determine reliable
project costs- typically within 20%-30%). Determination of adequacy of concepts to pass fish cannot be
determined without significant investigation and design. This is typically at a 30%design level and would
likely include computer modeling and/or physical modeling as required by the USACE. After meeting with
the USACE during Task 1, along with the development of concepts, MWDG will supply an opinion on the
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steps needed to make this determination. This will be based upon previously designed projects and
experience with integrated recreational/roughened channel passage structures.
Our team will provide the following deliverables for Task 3:
Schematics for the three developed concepts.
A memorandum presenting narratives of the three concepts, with respective schematics, delivered in
electronic(PDF) format.
MWDG will conduct a second trip to present the results of the Task 3 effort.
Milestones
We will deliver draft schematics to Augusta.
Subsequently,we will deliver final schematics and the memorandum to Augusta.
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Task 4-River Programming
Scope of Work
Develop river activation concepts for the Savannah River as part of the dam removal project and
integration of whitewater features. Tasks include:
Project Start-up
1. Our team will review available background information, including proposed development drawings
and concepts, base maps, city planning documents.
2. Our team will conduct kick off meeting via conference call with Client to develop a preliminary
understanding of the goals and objectives for the future river corridor and the various entertainment
features, such as a boat for light shows on the water, options for fireworks, and other river related
entertainment.
Site Visit
3. Our team will conduct a one-day visit(2 days including travel)to Augusta to review existing conditions
and identify potential opportunities for river and riverfront activation. Meet with the client and
stakeholder group,including City Parks and Planning Departments and local stakeholder and advocate
groups. Coordination of meetings will be arranged by the Client.
4. Our team will prepare presentation of precedent river activation projects to facilitate discussion of
the potentials for the Savannah River and project site, including entertainment options.
Programming Concept Diagram
5. Our team will review programming concepts for entertainment and activation that integrate with the
future river potentials.
6. Our team will develop preliminary concept diagram plan. Plan will identify potential programming
and feasibility for in-river activation such as a water taxi for boat tours, river transportation, and river
entertainment options; a ropes course and zipline that crosses the river, and river front activation
including outdoor adventure, public gathering, river access and viewing areas, and civic events.
Supporting precedent images will illustrate the programming potentials.
7. Our team will research feasibility of in-river entertainment options,such as a water taxi for boat tours,
event boat for fireworks, and in-river boating routes(kayak,tubing,water taxi).
Deliverables
Overall river vision programming plan
Precedent imagery for NSBLDP site
NSBLDP site programming diagram plan
Schematic Plan and rough cost estimate for zipline and/or ropes course
Milestones
Kick off call with Parks Department
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Site Visit&Stakeholder Workshop
Overall river vision concept plan (by June 31)
NSBLDP site programming diagram plan (by Sept—developed based on WW concepts)
Coordination of a schematic plan and rough cost estimate for zipline or ropes course (by Sept)
The following tasks we expect to be performed by the City staff:
4. Provide background and base information.
5. Coordinate stakeholder meeting including identifying attendings, invitations, logistics, and location.
6. City Forester or Arborist to identify trees that must be preserved or trees that need to be removed.
Provide mapping to Wenk Associates.
Additional services, if requested
1. Presentation of draft vision and programming plan to the City and stakeholder group. An additional
trip would be required.
2. Analysis(hydraulic modeling,etc.) into integration of fish passage with a particular USACE alternative.
Project Schedule and Milestones
A draft project schedule with milestones is presented below. This schedule was developed in MS Project
and it is intended to be updated and refined based upon the Client needs and as the project develops. It
is based upon a contract start date of 7/29/2018.
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Draft Project Schedule
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Fee and Scope
Compensation for the services as described above with a level of effort as shown in the following project
budge worksheet will be a lump sum of$39,977. Partial payments shall be made on a monthly basis.
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Attachment D
Additional Client Responsibilities
As identified in Attachment E including:
The following tasks we expect to be performed by the City staff:
1. Provide background and base information.
2. Coordinate stakeholder meeting including identifying attendings, invitations, logistics, and location.
3. City Forester or Arborist to identify trees that must be preserved or trees that need to be removed.
Provide mapping to Wenk Associates.
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