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Contract No. EM20-ST02
Page 1 of 10
CITY OF EL MIRAGE
PROFESSIONAL SERVICES CONTRACT
THIS PROFESSIONAL SERVICES CONTRACT, is made and entered into this 5th day of March,
2020, by and between the City of El Mirage, an Arizona municipal corporation (“City”), and Kimley-
Horn and Associates, Inc. an Arizona corporation (“Consultant”).
RECITALS
A. The City of El Mirage is authorized and empowered by provisions of the City Code to execute
contracts for professional services by and through its City Manager;
B. The City desires to contract for Consultant to perform/provide traffic engineering services to
prepare a multi-way stop sign warrant analysis for the intersection of 127th Avenue and Desert Cove
Road (“Services”) as described in the attached scope of work (Exhibit “A”) in accordance with the
terms of this Contract;
C. Consultant is duly qualified to perform the requested Services.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and obligations set for herein, the parties
hereto agree as follows:
1.1
DESCRIPTION, ACCEPTANCE, DOCUMENTATION
Consultant shall act under the authority and approval of the Contract Administrator for the City to
provide the Services required by this Contract. The Contract Administrator for the City shall be
Jorge Gastelum, Community Development Director/City Engineer, or designee. The Contract
Administrator shall oversee the execution of this Contract, assist the Consultant in accessing the
organization, audit billings, and approve payments. The Consultant shall channel reports and
special requests through the Contract Administrator. City reserves the right to change the Contract
Administrator for the City without prior approval of the Consultant.
1.2
SERVICE DESCRIPTION
Consultant shall provide the Services described in Exhibit “A.” All work will be reviewed,
evaluated, approved, and monitored by the Contract Administrator to determine acceptable
completion. Review and approval by the Contract Administrator shall not relieve Consultant of any
liability for improper, negligent or inadequate services rendered pursuant to this Contract.
Consultant shall provide all work necessary to assure the Services are completed in a timely and
efficient manner consistent with service requirements, including, but not limited to, working in
close interaction with, and interfacing with, City and its designated employees, and working closely
with others, including other consultants or contractors retained by City.
Contract No. EM20-ST01
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1.3
DOCUMENTATION AND DATA
All documents, including but not limited to, data compilations, studies, and reports which are
prepared in the performance of this Contract are to be, and remain the property of, the City and are
to be delivered to the Contract Administrator before final payment is made to the Consultant.
2.1
FEE SCHEDULE, RECORDS, AUDIT RIGHTS
The fee Consultant shall be paid for all Services provided pursuant to the terms of this Contract,
inclusive of all expenses under this Contract, shall not exceed Five Thousand Eight Hundred
Dollars ($5,800.00).
The Contract Administrator reserves the exclusive right to determine the amount of work performed
and payment due the Consultant on a monthly basis. Consultant shall maintain all books, paper
documents, accounting records and other evidence pertaining to such monthly billings and shall
make such materials available at all reasonable times to the Contract Administrator. Monthly
billings shall be accompanied by such documentation as the Contract Administrator may require to
make a determination of work performed and payment due.
Consultant’s records (hard copy, as well as computer readable data) and any other supporting
evidence deemed necessary by the City to substantiate charges and claims related to this Contract
shall be open to inspection and subject to audit and/or reproduction by City’s authorized
representative to the extent necessary to adequately permit evaluation and verification of cost of
the work, and any invoices, change orders, payments or claims submitted by the Consultant or any
of its payees pursuant to the execution of the Contract. The City’s authorized representative shall
be afforded access, at reasonable times and places, to all of the Consultant’s records and personnel
pursuant to the provisions of this article throughout the term of this contract and for a period of
three years after last or final payment.
Consultant shall require all subconsultants, insurance agents, and material suppliers (payees) to
comply with the provisions of this article by insertion of the requirements hereof in a written
contract agreement between Consultant and payee. Such requirements will also apply to any and
all subconsultants.
If any audit in accordance with this article discloses overcharges of any nature by the Consultant
to the City in excess of one percent (1%) of the total contract billings, the actual cost of the City’s
audit shall be reimbursed to the City by the Consultant. Any adjustments and/or payments which
must be made as a result of any such audit or inspection of the Consultant’s invoices and/or records
shall be made within a reasonable amount of time (not to exceed 90 days) from presentation of
City’s findings to Consultant.
2.2
ADDITIONAL SERVICES; PRICE ADJUSTMENT
The total Scope of Work to be performed by Consultant in accordance with this Contract is set forth
herein and in Exhibit “A.” Services not included in this Contract, including Exhibit “A,” will be
considered Additional Services. Consultant shall not perform any Additional Services without
written authorization from the City. It shall be presumed that all Services performed/provided by
Consultant were included in the Contract and contemplated by Consultant as being part of the
original Scope of Work and the fees set forth herein, unless such Services have been separately
approved by the City, in writing, as Additional Services. Consultant shall not be paid for any
Additional Services that are not authorized by the City in writing.
Contract No. EM20-ST01
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2.3
OWNERSHIP
Upon completion of the Services and upon receipt of payment for Services, Consultant grants to
City, and shall cause its subconsultants to grant to City, the exclusive ownership of any and all
copyrights, if any, to evaluations, reports, drawings, specifications, project manuals, surveys,
estimates, reviews, minutes, and other intellectual work product as may be applicable ("Work
Product"). This grant is effective whether the Work Product is on paper (e.g., a "hard copy"), in
electronic format, or in some other form. Any modifications made by the Client to any of the
Consultant’s documents, or any use, partial use or reuse of the documents without written
authorization or adaptation by the Consultant will be at the Client's sole risk and without liability
to the Consultant.
3.1
TERM AND EXTENSION
This Contract shall be in full force and effect only when approved and signed by City’s City
Manager as attested by the City Clerk. This Contract begins on the Effective Date. All work shall
be completed by May 15, 2020.
In the event the work cannot be completed within the time specified, the Contract Administrator
may approve a change order extending the time for completion of the work when Contract
Administrator determines it is in the best interest of the City for such period as the Contract
Administrator deems reasonable. A modification for a time extension for completion of the work
pursuant to this subparagraph shall not entitle Consultant to additional compensation.
3.2
TERMINATION
3.2.1
Termination for Cause
The City has the right to terminate this Contract for cause in the event Consultant materially
breaches any provision of this Contract or portion of the Services and fails to remedy the
breach within five (5) business days of notification of the breach, if the breach is remedial.
If Consultant fails to remedy the breach or if the breach is not remedial, City may terminate
this Contract for cause immediately upon written notice to Consultant. In the event the City
terminates this Contract or any part of the Services as herein provided pursuant to this
Section 3.2.1, the City shall notify the Consultant in writing, and immediately upon receipt
of such notice, the Consultant shall discontinue all work under this Contract.
Upon termination for cause, Consultant shall immediately deliver to the City all drawings,
research, data, studies, reports, estimates and any and all other documents or work product
generated by the Consultant under the Contract, together with all unused material supplied
by the City. Consultant shall be responsible only for such portion of the work which has
been completed and accepted by the City. Use of incomplete data by the City shall be the
City’s sole responsibility.
The Consultant shall receive as compensation in full for Services performed to the date of
such termination or abandonment, a fee for the percentage of Services actually completed.
The City shall make such final payment within sixty (60) days after the Consultant has
delivered the last of the partially completed items.
If the Consultant materially fails to fulfill in a timely and proper manner its obligations
Contract No. EM20-ST01
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under this Contract, of if the Consultant violates any of the covenants, agreements, or
stipulations of this Contract, the City may withhold from payment due to the Consultant
such amounts as are necessary to protect the City’s position for the purpose of set-off until
such time as the exact amount of damages can be determined.
3.2.2. Termination due to Breach
Consultant shall have the right to terminate this agreement upon seven days’ notice to the
Client upon breach by the Client of any of its obligation under this Agreement. In the event
of such termination, the Consultant shall be paid for all services performed up to the
effective date of the termination and all damages, if any, resulting from the Client's breach
of this Agreement.
3.3
FUNDS APPROPRIATION
If the City Council does not appropriate funds to continue this Contract and pay for charges
hereunder, the City may terminate this Contract at the end of the current fiscal period. The City
agrees to give written notice, pursuant to Section 3.2, Termination, of this Contract to the
Consultant at least thirty (30) days prior to the end of its current fiscal period and will pay to the
Consultant all approved charges incurred through the end of such period.
The City's fiscal year begins July 1st and ends June 30th each calendar year. The City may make
payment for Services rendered or costs encumbered only during a fiscal year and for a period of
sixty (60) days immediately following the close of the fiscal year, under the provisions of Arizona
Revised Statutes § 42-17108. Therefore, Consultant must submit billings for Services performed
or costs incurred prior to the close of a fiscal year within forty-five (45) days to allow payment
within this period.
4.1
ENTIRE AGREEMENT
This Contract constitutes the entire understanding of the parties and supersedes all previous
representations, written or oral, with respect to the Services specified herein. This Contract may
not be modified or amended except by a written document, signed by authorized representatives of
each party.
4.2
ARIZONA LAW
This Contract shall be governed and interpreted according to the laws of the State of Arizona. Any
action brought to interpret or enforce any provision of this Contract that cannot be administratively
resolved, or otherwise related to or arising from this Contract, shall be commenced and maintained
in the state or federal courts of the State of Arizona, Maricopa County, and each of the parties, to
the extent permitted by law, consents to jurisdiction and venue in such courts for such purposes.
4.3
COMPLIANCE WITH LAWS
Consultant shall comply with all existing and subsequently enacted federal, state and local laws,
ordinances, codes, and regulations that are, or become applicable to this Contract. If a subsequently
enacted law imposes substantial additional costs on Consultant, a request for an amendment may
be submitted pursuant to this Contract.
Contract No. EM20-ST01
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4.4
MODIFICATIONS
Any amendment, modification or variation from the terms of this Contract shall be in writing and
shall be effective only after approval of all parties signing the original Contract.
4.5
ASSIGNMENT
Services covered under this Contract shall not be assigned or sublet in whole or in part
without the prior written consent of the Finance Director and Contract Administrator.
4.6
SUCCESSORS AND ASSIGNS
This Contract shall extend to and be binding upon Consultant, its successors and assigns, including
any individual, company, partnership or other entity with or into which Consultant shall merge,
consolidate or be liquidated, or any person, corporation, partnership or other entity to which
Consultant shall sell its assets.
4.7
ATTORNEY’S FEES
In the event either party brings any action for any relief, declaratory or otherwise, arising out of
this Contract, or on account of any breach or default hereof, the prevailing party may be entitled to
receive from the other party reasonable attorneys’ fees and reasonable costs and expenses
determined by the court sitting without a jury or arbitration board, which shall be deemed to have
accrued on the commencement of such action and shall be enforceable whether or not such action
is prosecuted to judgment or by arbitration award.
4.8
INDEPENDENT CONTRACTOR
The Services Consultant provides under the terms of this Contract to the City are that of an
Independent Contractor, not an employee or agent of the City. The City will report the value paid
for these Services each year to the Internal Revenue Service (I.R.S.) using Form 1099.
City shall not withhold income tax as a deduction from contractual payments. As a result of this,
Consultant may be subject to I.R.S. provisions for payment of estimated income tax. Consultant is
responsible for consulting the local I.R.S. office for current information on estimated tax
requirements. Consultant will not be entitled to any benefits provided by City to its employees,
including, but not limited to, health benefits, workers’ compensation, unemployment coverage,
deferred compensation, and all other typical employee benefits.
4.9
CONFLICT OF INTEREST
The City may cancel any contract or agreement, without penalty or obligation, if any person
significantly involved in initiating, negotiating, securing, drafting or creating the contract on behalf
of the City’s departments or agencies is, at any time while the contract or any extension of the
contract is in effect, an employee of any other party to the contract in any capacity or a consultant
to any other party to the Contract with respect to the subject matter of the Contract. The cancellation
will be effective when written notice from the City is received by all other parties to the Contract,
unless the notice specifies a later time (A.R.S. §38-511).
Contract No. EM20-ST01
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4.10
NOTICES
All notices or demands required to be given pursuant to the terms of this Contract shall be given
to the other party in writing, delivered by hand or registered or certified mail, at the addresses set
forth below, or to such other address as the parties may substitute by written notice given in the
manner prescribed in this paragraph.
In the case of Consultant:
Kimley-Horn and Associates, Inc.
Attn: Kimberly Carroll, P.E., PTOE
7740 N. 16th Street, Suite 300
Phoenix, AZ 85020
In the case of City
City of El Mirage
Attn: City Manager
10000 North El Mirage Road
El Mirage, Arizona 85335
With a copy to:
City of El Mirage
City Attorney
10000 North El Mirage Road
El Mirage, Arizona 85335
Notices shall be deemed received on date delivered, if delivered by hand, and on the delivery date
indicated on receipt if delivered by certified or registered mail.
4.11
FORCE MAJEURE
Neither party shall be responsible for delays or failures in performance resulting from acts beyond
their control. Such acts shall include, but not be limited to, acts of God, riots, acts of war, epidemics,
governmental regulations imposed after the fact, fire, communication line failures, power failures,
or earthquakes.
4.12
TAXES
Consultant shall be solely responsible for any and all tax obligations which may result out of the
Consultant’s performance of this Contract. The City shall have no obligation to pay any amounts
for taxes of any type incurred by the Consultant.
4.13
ADVERTISING AND PROMOTION
Consultant shall not publish, release, disclose or announce to any member of the public, press,
official body, or any other third party: (1) any information concerning this Contract, the Services,
or any part thereof; or (2) any documentation or the contents thereof, without the prior written
consent of the City, except as required by law or judicial or regulatory process. The name of any
site on which Services are performed shall not be used in any advertising or other promotional
context by Consultant without the prior written consent of the City.
4.14
COUNTERPARTS
This Contract may be executed in one or more counterparts, and each originally executed duplicate
counterpart of this Contract shall be deemed to possess the full force and effect of the original.
Contract No. EM20-ST01
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4.15
CAPTIONS
The captions used in this Contract are solely for the convenience of the parties, do not constitute a
part of this Contract and are not to be used to construe or interpret this Contract.
4.16
SUBCONSULTANTS
During the performance of the Contract, the Consultant may engage such additional subconsultants
as may be required for the timely completion of this Contract. The addition of any subconsultants
shall be subject to the prior approval of the City.
In the event of subcontracting, the sole responsibility for fulfillment of all terms and conditions of
this Contract rests with the Consultant.
4.17
INDEMNIFICATION
The Consultant agrees, to the fullest extent permitted by law, to indemnify and hold harmless the
City, its officers, directors and employees (collectively, City) against all damages, liabilities or
costs, including reasonable attorneys’ fees and defense costs, to the extent caused by the
Consultant’s negligent performance of professional services under this Contract and that of its
subcontractors or anyone for whom the Consultant is legally liable.
The City agrees, to the fullest extent permitted by law, to indemnify and hold harmless the
Consultant, its officers, directors, employees and subcontractors (collectively, Consultant) against
all damages, liabilities or costs, including reasonable attorney’s fees and defense costs, to the extent
caused by the City’s negligent acts in connection with the Services and the acts of its contractors,
subcontractors or consultants or anyone for whom the City is legally liable.
Neither the City nor the Consultant shall be obligated to indemnify the other party in any manner
whatsoever for the other party’s own negligence or for the negligence of others.
4.18
INSURANCE
The Consultant shall secure and maintain at all times that this Contract is in effect, insurance
coverage which shall include statutory workers’ compensation, comprehensive general and
automobile liability, owner’s and Consultant’s protective liability insurance and errors and
omissions professional liability. The comprehensive general and automobile liability limits shall
be no less than one million dollars ($1,000,000) combined single limit. The owner’s and
Consultant’s protective liability limits shall be no less than one million dollars ($1,000,000) for
each occurrence and one million dollars ($1,000,000) policy aggregate naming the City as an
additional insured. The minimum amounts of coverage for Consultant’s professional liability shall
be one million dollars ($1,000,000). In other than errors and omissions professional liability, City’s
and Consultant’s protective liability and worker’s compensation, the City of El Mirage shall be
named as an additional insured.
All insurance coverage shall be written through a carrier licensed in Arizona, or an approved non-
admitted list of carriers published by the Arizona Department of Insurance, and possessing an A.M.
Best rating of at least A- or above with policies and forms satisfactory to the City.
The Consultant shall submit to the City a certificate of insurance evidencing the coverage and limits
Contract No. EM20-ST01
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stated in the foregoing paragraph within ten (10) days of award of this Contract. City shall not issue
a “Notice to Proceed” until after Consultant has submitted the certificate of insurance to City.
Insurance evidenced by the certificate shall not expire or be canceled or materially changed without
thirty (30) days prior written notice to the City, and a statement to that effect must appear on the
face of the certificate and the certificate shall be signed by a person authorized to bind the insurer.
The insurance policies, except Workers’ Compensation required by this Contract, shall name the
City, its agents, representatives, officers, directors, officials and employees as Additional Insureds.
4.19
FEDERAL AND STATE EMPLOYMENT IMMIGRATION LAWS
To the extent applicable under A.R.S. § 41-4401, Consultant warrants its and its subconsultants’
compliance with all federal immigration laws and regulations that relate to their compliance with
the E-verify requirements under A.R.S. § 23-214(A). Consultant’s or its subconsultants’ breach of
the above-mentioned warranty shall be deemed a material breach of the Contract and may result in
the termination of the Contract by the City. The City retains the legal right to randomly inspect the
papers and records of Consultant and its subconsultants to ensure that the Consultant and its
subconsultants are complying with the above-mentioned warranty.
The Consultant warrants to keep the papers and records open for random inspection during normal
business hours by the City. The Consultant shall cooperate with the City’s random inspections
including granting the City entry rights to Consultant’s property to perform the random inspections
and waiving its right to keep such papers and records confidential. The failure of Consultant to
comply with this warranty regarding the keeping of papers and records and cooperating with City’s
random inspections shall constitute a material breach of the Contract and the City will have the
right to immediately terminate the Contract.
4.20
BOYCOTT OF ISRAEL
Consultant certifies that it is not currently engaged in and agrees for the duration of this Agreement
that it will not engage in a boycott of Israel as set forth in ARIZ. REV. STAT. § 35-393 and § 35-
393.01
4.21
SEVERABILITY
If any term or provision of this Contract shall be found to be illegal or unenforceable, then
notwithstanding such illegality or unenforceability, this Contract shall remain in full force and
effect and such term or provision shall be deemed to be deleted.
Contract No. EM20-ST01
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CITY OF EL MIRAGE
CONSULTANT:
By: ______________________________
_______________________________
Print Name
By: J. Crystal Dyches
Its: City Manager
By: ______________________________
Signature
Its _______________________________
Title
ATTEST:
____________________________
Sharon Antes, City Clerk
APPROVED AS TO FORM:
___________________________
Justin Pierce, City Attorney
Page 10 of 10
EXHIBIT “A”
kimley-horn.com
7740 N. 16th Street, Suite 300, Phoenix, AZ 85020
602-944-5500
March 5, 2020
Mr. Bryce Christo, P.E.
Assistance City Engineer
City of El Mirage
10000 N. El Mirage Road
El Mirage, Arizona 85335
Re:
127th Avenue and Desert Cove Road
Multi-way Stop Sign Warrant Analysis
Dear Bryce:
Kimley-Horn and Associates, Inc. (Kimley-Horn) is pleased to submit this letter agreement to the City
of El Mirage (COEM) for providing professional traffic engineering services for the intersection of 127th
Avenue and Desert Cove Road in El Mirage, Arizona. Based on research of the surrounding area we
understand the following:
1. 127th Avenue is classified as a collector roadway within COEM and has a posted speed limit of 25
miles per hour.
2. Desert Cove Road is classified as a local roadway within COEM and has a posted speed limit of
25 miles per hour.
3. The intersection of 127th Avenue and Desert Cove Road is currently unsignalized with stop
control on the eastbound and westbound approaches.
Scope of Services
Kimley-Horn will provide the services specifically set forth below.
Task 1: Project Administration and Management
•
Kimley-Horn administration work consists of the tracking and coordinating project budget, schedule
and billing with COEM.
Task 2: Data collection/Field Review
•
Kimley-Horn subconsultant (Field Data Services (FDS)) will obtain 24-hour turning movement
volumes, including pedestrian and bike, at the intersection of 127th Avenue and Desert Cove Road
during a typical weekday. The work will be conducted using video recording to capture vehicular,
pedestrian, and bike traffic volume. It should be noted that traffic data collection is not
recommended over the school holiday breaks or vacations. Scheduling of the traffic data will be
coordinated with COEM prior to collection.
•
Kimley-Horn will conduct a field investigation to record existing traffic control devices, geometric
conditions, and sight distance constraints.
•
COEM will provide the last five years of crash data for use in evaluating the multi-way stop warrant
analysis.
•
Parcel R/W will be based on Maricopa Assessors map information. Title reports or establishing
parcel boundary is not included.
Task 3: Multi-Way Stop Sign Warrant Analysis
Kimley-Horn will evaluate the intersection for multi-way stop based on the Manual on Uniform Traffic
Control Devices (MUTCD), Section 2B.07 and using the data collected as part of Task 2.
Page 2
kimley-horn.com
7740 N. 16th Street, Suite 300, Phoenix, Arizona 85020
602-944-5500
Task 4: Documentation of Recommendations
Kimley-Horn will summarize the process and results in an illustrated technical memorandum. Two
submittals (draft and final) will be made to COEM. Kimley-Horn will respond to and incorporate COEM
comments into the final technical memorandum. A PDF copy will be submitted electronically.
Services Not Included
Any other services, including but not limited to the following, are not included in this Agreement:
•
Meetings
•
Design and Construction Documents
Any services not specifically provided for in the above scope will be billed as additional services and
performed at our then current hourly rates.
Schedule
Kimley-Horn will being work upon receipt of notice to proceed. The draft technical memorandum will
be completed following written notice to proceed and two weeks following receipt of the traffic data
requested as part of Task 2. The final technical memorandum will be completed within two weeks of
receipt of the comments. This time includes resolution of comments received, revising the document,
and resubmittal electronically.
Fee and Expenses
Kimley-Horn will perform the services in Tasks 1 - 4 for the total lump sum fee of $5,800, which includes
$600.00 for traffic count data collection and mileage expenses associated with the field review. Lump
sum fees will be invoiced monthly based upon the overall percentage of services performed.
We appreciate the opportunity to provide these services to you. Please contact me if you have any
questions at 602-906-1122 or kim.carroll@kimley-horn.com
Very truly yours,
KIMLEY-HORN AND ASSOCIATES, INC.
By: Kimberly Carroll, P.E., PTOE
Sr. Project Manager
CITY OF EL MIRAGE
Signature
Date
Title
03-06-20
Assistant City Engineer