Extracted text (via pymupdf)
46612 characters
November 17, 2017
Maher Osman, PE
Consultant Engineering, Inc.
2855 S. 4th Avenue, Suite 111
Yuma, AZ 85364
Purchasing Division
One City Plaza
Yuma, AZ 85364
(928) 373-5116 PHONE
(928) 373-5117 FAX
(928) 373-5149 TTY
www.YumaAz.gov
RE: RFQ #2017-20000133 - Professional Engineering & Other Related Consultant Services
Dear Maher Osman:
Attached you will find the fully executed contract for the above referenced subject, which Yuma City Council
awarded the contract on June 21, 2017, with the effective date of November 15, 2017.
Any projects relating to this contract, please indicate the RFQ number as shown above that it appears on the
document, dated and signed on company letterhead.
Thank you for your interest in doing business with the City of Yuma. We look forward to a mutually beneficial
contract and appreciate you continuing to bid with us. If you have questions concerning the contract, please feel
free to contact me.
Sincerely,
Robin R. Wilson, CPPB
Purchasing & Contracts Manager
Enclosed: Contract Documents
c:
File #2017-20000133
•
!,~
November 7, 2017
Maher Osman, PE
Consultant Engineering, Inc.
2855 S. 4th Avenue, Suite 111
Yuma, AZ 85364
Vendor
Purchasing Division
One City Plaza
Yuma, AZ 85364-1436
(928) 373-5116 VOICE
(928) 373-5117 FAX
(928) 373-5149 TTY
www.YumaAz.gov
Via e-mail: mosman@cei-az.com
RE: RFQ #2017-20000133- Professional Engineering & Other Related Consultant Services
Dear Maher Osman:
The Yuma City Council authorized the award of the above referenced project on June 21 , 2017 and staff has accepted the
fee schedule rates.
Attached you will find the approved services agreement ("Agreement"). Please print, sign two (2) complete originals of the
Agreement and return both to me at the above address with your Certificates of Insurance and formal endorsements, as
stated in the Agreement, no later than November 15, 2017.
By signing and returning the Agreement, you acknowledge that you have previously received copies of the following
documents relating to RFP #2017-20000133 - Professional Engineering & Other Related Consultant Services:
1.
Request for Qualifications
2.
Addenda 1-2
3. Sample Contract
4.
Contract
5.
Proposal Response to the Solicitation dated May 1, 2017
6.
Fee Proposal dated November 3, 2017
If there are any of the aforementioned items which you have not received, please contact me at once to receive a copy.
Please remember that the Agreement requires you to provide and maintain current certificates of insurance and formal
endorsements referencing RFP #2017-20000133 - Professional Engineering & Other Related Consultant Services
f~~;~;oa::::•ment
~ t/wJ. 'j_~~ ~1r
Printed Name of Signer
Signature
Date
Sincerely,
Robin R. Wilson, CPPB
Purchasing & Contracts Manager
Copy: Bid File 2017-20000133
Return This Page to my attention with two signed contracts and the required insurance certificates.
PROFESSIONAL SERVICES AGREEMENT
BETWEEN
THE CITY OF YUMA
AND
CONSUL TANT ENGINEERING, INC.
Vendor
THIS PROFESSIONAL SERVICES AGREEMENT (this "Agreement") is entered into as of the
Effective Date set forth below between the City of Yuma, an Arizona municipal corporation (the
"City"), and Consultant Engineering, Inc. an Arizona Corporation (the "Consultant"). The City and
the Consultant are sometimes referred to individually as the "Party" and collectively as the
"Parties".
RECITALS
A.
The City issued a Request for Qualifications, RFQ #2017-20000133 "Professional
Engineering & Other Related Consultant Services" (the "RFQ"), a copy of which is on file in the
City Clerk's Office and incorporated herein by reference, seeking proposals from Consultants for
Professional Engineering & Other Related Consultant Services (the "Services").
B.
The Consultant responded to the RFQ by submitting a proposal (the "Proposal"), attached
hereto as Exhibit A and incorporated herein by reference, and the City desires to enter into an
Agreement with the Consultant for the Services.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated herein by
reference, the following mutual covenants and conditions, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the City and the
Consultant hereby agree as follows:
1.
Term of Agreement. This Agreement shall be effective as of the Effective Date set forth
below and shall remain in full force and effect for one (1) year from the Effective Date (the "Initial
Term"), unless terminated as otherwise provided in this Agreement. After the expiration of the
Initial Term, this Agreement shall automatically renew for up to four (4) successive one-year terms
(each, a "Renewal Term") unless terminated as otherwise provided in this Agreement. The Initial
Term and any Renewal Term(s) are collectively referred to herein as the "Term." Upon renewal,
the terms and conditions of this Agreement shall remain in full force and effect.
2.
Scope of Work.
This is an indefinite quantity and indefinite delivery order Agreement for Services, which shall only
be provided when the City chooses to move forward with a pending project and proper
authorization and documentation have been approved. For project(s) determined by the City to
be appropriate for this Agreement, the Consultant shall provide the specific Services to the City
as may be agreed upon between the Parties, in the form of a written invoice, quote, purchase
order or other form of written acknowledgment describing the Services to be provided (each, a
"Delivery Order"). Each Delivery Order shall (i) contain a reference to this Agreement and (ii) be
attached hereto as Exhibit B and incorporated herein by reference. Delivery Orders submitted
without referencing this Agreement will be subject to rejection. Consultant acknowledges and
agrees that Delivery Order(s) containing unauthorized exceptions, conditions, limitations, or
provisions in conflict with the terms of this Agreement, other than City's project-specific
requirements, are hereby expressly declared void and shall be of no force and effect. The City
does not guarantee any minimum or maximum amount of Services will be requested under this
Agreement.
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RFQ #2017-20000133
Professional Engineering Services &
Other Related Services
3.
Compensation. The City shall pay Consultant an amount not to exceed $250,000.00 for
each individual Delivery Order, and an annual aggregate amount not to exceed $500,000.00 for
Professional Engineering & Other Related Consultant Services (as described in the Scope of
Work resulting in a Delivery Order) at the rates for Professional Engineering & Other Related
Consultant Services, as set forth in the Fee Proposal, attached hereto as Exhibit C and
incorporated herein by reference.
4.
Payments. The City shall pay the Consultant monthly, based upon work performed and
completed to date, and upon submission and approval of invoices. All invoices shall document
and itemize all work completed to date. Each invoice statement shall include a record of time
expended and work performed in sufficient detail to justify payment.
5.
Documents. All documents, including any intellectual property rights thereto, prepared
and submitted to the City pursuant to this Agreement shall be the property of the City.
6.
Consultant Personnel.
Consultant shall provide adequate, experienced personnel,
capable of and devoted to the successful performance of the Services under this Agreement.
Consultant agrees to assign specific individuals to key positions.
If deemed qualified, the
Consultant is encouraged to hire City residents to fill vacant positions at all levels. Consultant
agrees that, upon commencement of the Services to be performed under this Agreement, key
personnel shall not be removed or replaced without prior written notice to the City.
If key
personnel are not available to perform the Services for a continuous period exceeding thirty (30)
calendar days, or are expected to devote substantially less effort to the Services than initially
anticipated, Consultant shall immediately notify the City of same and shall, subject to the
concurrence of the City, replace such personnel with personnel possessing substantially equal
ability and qualifications.
7.
Inspection: Acceptance. All work shall be subject to inspection and acceptance by the
City at reasonable times during Consultant's performance. The Consultant shall provide and
maintain a self-inspection system that is acceptable to the City.
8.
Licenses; Materials. Consultant shall maintain in current status all federal, state and local
licenses and permits required for the operation of the business conducted by the Consultant. The
City has no obligation to provide Consultant, its employees or subcontractors any business
registrations or licenses required to perform the specific services set forth in this Agreement. The
City has no obligation to provide tools, equipment or material to Consultant.
9.
Performance Warranty. Consultant warrants that the Services rendered will conform to
the requirements of this Agreement and to the highest professional standards in the field.
10.
Indemnification. To the fullest extent permitted by law, the Consultant shall indemnify,
defend, and hold harmless the City and each council member, officer, director, employee or agent
thereof (the City and any such person being herein called an "Indemnified Party"), for, from and
against any and all losses, claims, damages, liabilities, fines, penalties, judgments, costs and
expenses (including, but not limited to, reasonable attorneys' fees, court costs and the costs of
appellate proceedings) to which any such Indemnified Party may become subject, under any
theory of liability whatsoever (collectively "Claims") to the extent that such Claims (or actions in
respect thereof) are caused, in whole or in part, by the negligent acts, mistakes, errors, omissions,
or recklessness or intentional misconduct of the Consultant, its officers, employees, agents, or
any tier of subcontractor or person for which Consultant may be legally liable in connection with
Consultant's work or services in the performance of this Agreement.
The amount and type of insurance coverage requirements set forth below will in no way be
construed as limiting the scope of the indemnity in this Section 10.
Page 2 of 15
Consultant Engineering, Inc.
Revised: 0212017
11 .
Insurance.
11.1
General.
RFQ #2017-20000133
Professional Engineering Services &
Other Related Services
A.
Insurer Qualifications. Without limiting any obligations or liabilities of Consultant,
Consultant shall purchase and maintain, at its own expense, hereinafter stipulated
minimum insurance with insurance companies authorized to do business in the State of
Arizona pursuant to Arizona Revised Statutes ("A.RS.") § 20-206, as amended, with an
AM Best, Inc. rating of A- or above with policies and forms satisfactory to the City. Failure
to maintain insurance as specified herein may result in termination of this Agreement at
the City's option.
B.
No Representation of Coverage Adequacy. The City reserves the right to review
any and all of the insurance policies and/or endorsements cited in this Agreement, but has
no obligation to do so. Failure to demand such evidence of full compliance with the
insurance requirements set forth in this Agreement or failure to identify any insurance
deficiency shall not relieve Consultant from, nor be construed or deemed a waiver of, its
obligation to maintain the required insurance at all times during the performance of this
Agreement.
C.
Additional Insured. All insurance coverage and self-insured retention or deductible
portions, except Workers' Compensation insurance and Professional Liability insurance,
if applicable, shall name and endorse, to the fullest extent permitted by law for claims
arising out of the performance of this Agreement, the City, its agents, representatives,
officers, directors, officials and employees as Additional Insured as specified under the
respective coverage sections of this Agreement.
D.
Coverage Term. All insurance required herein shall be maintained in full force and
effect until all work or services required to be performed under the terms of this Agreement
are satisfactorily performed, completed and formally accepted by the City, unless specified
otherwise in this Agreement.
E.
Primary Insurance.
Consultant's insurance shall be endorsed to indicate its
primary, non-contributory insurance with respect to performance of this Agreement and in
the protection of the City as an Additional Insured. Such coverage shall be at least as
broad as ISO CG 20 01 04 13.
F.
Claims Made. In the event any insurance policies required by this Agreement are
written on a "claims made" basis, coverage shall extend, either by keeping coverage in
force or purchasing an extended reporting option, for three (3) years past completion and
acceptance of the services. Such continuing coverage shall be evidenced by submission
of annual Certificates of Insurance citing applicable coverage is in force and contains the
provisions as required herein for the three-year period.
G.
Waiver.
All policies, except for Professional Liability, including Workers'
Compensation insurance, shall contain a waiver of rights of recovery (subrogation) against
the City, its agents, representatives, officials, officers and employees for any claims arising
out of the work or services of Consultant.
Consultant shall arrange to have such
subrogation waivers incorporated into each policy via formal written endorsement.
Page 3 of 15
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RFQ #2017-200001 33
Professional Engineering Services &
Other Related Services
H.
Policy Deductibles and/or Self-Insured Retentions. The policies set forth in these
requirements may provide coverage that contains deductibles or self-insured retention
amounts. Such deductibles or self-insured retention shall not be applicable with respect
to the policy limits provided to the City. Consultant shall be solely responsible for any such
deductible or self-insured retention amount.
I.
Use of Subcontractors. If any work under this Agreement is subcontracted in any
way, Consultant shall execute written agreements with its subcontractors containing the
indemnification provisions set forth in this Section and insurance requirements set forth
herein protecting the City and Consultant. Consultant shall be responsible for executing
any agreements with its subcontractors and obtaining certificates of insurance verifying
the insurance requirements.
J.
Evidence of Insurance. Prior to commencing any work or services under this
Agreement, Consultant will provide the City with suitable evidence of insurance in the form
of certificates of insurance and a copy of the declaration page(s) of the insurance policies
as required by this Agreement, issued by Consultant's insurance insurer(s) as evidence
that policies are placed with acceptable insurers as specified herein and provide the
required coverages, conditions and limits of coverage specified in this Agreement and that
such coverage and provisions are in full force and effect. The City may reasonably rely
upon the certificates of insurance and declaration page(s) of the insurance policies as
evidence of coverage but such acceptance and reliance shall not waive or alter in any way
the insurance requirements or obligations of this Agreement. If any of the policies required
by this Agreement expire during the life of this Agreement, Consultant shall forward
renewal certificates and declaration page(s) to the City thirty (30) days prior to the
expiration date. All certificates of insurance and declarations required by this Agreement
shall be identified by referencing the RFQ number and title of this Agreement. Additionally,
certificates of insurance and declaration page(s) of the insurance policies submitted
without referencing the appropriate RFQ number and title or a reference to this
Agreement, as applicable, will be subject to rejection and may be returned or discarded.
Certificates of insurance and declaration page{s) shall specifically include the following
provisions:
(1)
The City, its agents, representatives, officers, directors, officials and
employees are Additional Insureds as follows:
(a)
Commercial General Liability - Under Insurance Services Office,
Inc., {"ISO") Form CG 20 10 03 97 or equivalent.
(b)
Auto Liability - Under ISO Form CA 20 48 or equivalent.
(c)
Excess Liability - Follow Form to underlying insurance.
(2)
Consultant's insurance shall be primary, non-contributory insurance with
respect to performance of the Agreement.
(3)
All
policies,
except for Professional
Liability,
including Workers'
Compensation, waive rights of recovery (subrogation) against City, its agents,
representatives, officers, officials and employees for any claims arising out of work
or services performed by Consultant under this Agreement.
(4)
ACORD certificate of insurance form 25 (2014/01) is preferred. If ACORD
certificate of insurance form 25 (2001/08) is used, the phrases in the cancellation
provision "endeavor to" and "but failure to mail such notice shall impose no
obligation or liability of any kind upon the company, its agents or representatives"
shall be deleted. Certificate forms other than ACORD form shall have similar
restrictive language deleted.
Page 4 of 15
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Revised: 02/2017
11.2
Required Insurance Coverage.
RFQ #2017-20000133
Professional Engineering Services &
Other Related Services
A.
Commercial General Liability.
Consultant shall maintain "occurrence" form
Commercial General Liability insurance with an unimpaired limit of not less than
$1,000,000 for each occurrence, $2,000,000 Products and Completed Operations Annual
Aggregate and a $2,000,000 General Aggregate Limit. The policy shall cover liability
arising from
premises, operations, independent contractors, products-completed
operations, personal injury and advertising injury. Coverage under the policy will be at
least as broad as ISO policy form CG 00 010 93 or equivalent thereof, including but not
limited to, separation of insured's clause. To the fullest extent allowed by law, for claims
arising out of the performance of this Agreement, the City, its agents, representatives,
officers, officials and employees shall be endorsed as an Additional Insured under ISO,
Commercial General Liability Additional Insured Endorsement form CG 20 10 03 97, or
equivalent, which shall read "Who is an Insured (Section II) is amended to include as an
insured the person or organization shown in the Schedule, but only with respect to liability
arising out of "your work" for that insured by or for you." If any Excess insurance is utilized
to fulfill the requirements of this subsection, such Excess insurance shall be "follow form"
equal or broader in coverage scope than underlying insurance.
B.
Vehicle Liability.
Consultant shall maintain Business Automobile Liability
insurance with a limit of $1,000,000 each occurrence on Consultant's owned, hired and
non-owned vehicles assigned to or used in the performance of the Consultant's work or
services under this Agreement. Coverage will be at least as broad as ISO coverage code
"1" "any auto" policy form CA 00 01 12 93 or equivalent thereof. To the fullest extent
allowed by law, for claims arising out of the performance of this Agreement, the City, its
agents, representatives, officers, directors, officials and employees shall be endorsed as
an Additional Insured under ISO Business Auto policy Designated Insured Endorsement
form CA 20 48 or equivalent. If any Excess insurance is utilized to fulfill the requirements
of this subsection, such Excess insurance shall be "follow form" equal or broader in
coverage scope than underlying insurance.
C.
Professional Liability. If this Agreement is the subject of any professional services
or work, or if the Consultant engages in any professional services or work adjunct or
residual to performing the work under this Agreement, the Consultant shall maintain
Professional Liability insurance covering negligent errors and omissions arising out of the
Services performed by the Consultant, or anyone employed by the Consultant, or anyone
for whose negligent acts, mistakes, errors and omissions the Consultant is legally liable,
with an unimpaired liability insurance limit of $2,000,000 each claim and $2,000,000
annual aggregate.
D.
Workers' Compensation Insurance.
Consultant shall maintain Workers'
Compensation insurance to cover obligations imposed by federal and state statutes
having jurisdiction over Consultant's employees engaged in the performance of work or
services under this Agreement and shall also maintain Employers Liability Insurance of
not less than $500,000 for each accident, $500,000 disease for each employee and
$1,000,000 disease policy limit.
E.
Umbrella/Excess Liability. Consultant must carry Umbrella/Excess Liability
insurance with an unimpaired limit of not less than $2,000,000.00 per occurrence
combined limit bodily injury and property damage, and applies in excess of the Commercial
General Liability, Automobile Liability and Employer's Liability, as required above.
Page 5 of 15
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RFQ #2017-20000133
Professional Engineering Services &
Other Related Services
F.
Additional Coverage. To the fullest extent permitted by law, if the Consultant
maintains higher insurance limits than the minimums shown above, the City requires and
shall be entitled to coverage for the higher limit maintained.
11.3
Cancellation and Expiration Notice.
Insurance required herein shall not expire, be
canceled, or be materially changed without thirty (30) days' prior written notice to the City.
12.
Termination; Cancellation.
12.1
For City's Convenience. This Agreement is for the convenience of the City and, as such,
may be terminated without cause after receipt by Consultant of written notice by the City. Upon
termination for convenience, Consultant shall be paid for all undisputed services performed to the
termination date.
12.2
For Cause. If either Party fails to perform any obligation pursuant to this Agreement and
such Party fails to cure its nonperformance within thirty (30) days after notice of nonperformance
is given by the non-defaulting Party, such Party will be in default. In the event of such default, the
non-defaulting Party may terminate this Agreement immediately for cause and will have all
remedies that are available to it at law or in equity including, without limitation, the remedy of
specific performance. If the nature of the defaulting Party's nonperformance is such that it cannot
reasonably be cured within thirty (30) days, then the defaulting Party will have such additional
periods of time as may be reasonably necessary under the circumstances, provided the defaulting
Party immediately (A) provides written notice to the non-defaulting Party and (B) commences to
cure its nonperformance and thereafter diligently continues to completion the cure of its
nonperformance. In no event shall any such cure period exceed ninety (90) days. In the event
of such termination for cause, payment shall be made by the City to the Consultant for the
undisputed portion of its fee due as of the termination date.
12.3
Due to Work Stoppage. This Agreement may be terminated by the City upon thirty (30)
days' written notice to Consultant in the event that the Services are permanently abandoned. In
the event of such termination due to work stoppage, payment shall be made by the City to the
Consultant for the undisputed portion of its fee due as of the termination date.
12.4
Conflict of Interest. This Agreement is subject to the provisions of A.R.S. § 38-511. The
City may cancel this Agreement without penalty or further obligations by the City or any of its
departments or agencies if any person significantly involved in initiating, negotiating, securing,
drafting or creating this Agreement on behalf of the City or any of its departments or agencies is,
at any time while the Agreement or any extension of the Agreement is in effect, an employee of
any other Party to the Agreement in any capacity or a consultant to any other Party of the
Agreement with respect to the subject matter of the Agreement.
12.5
Gratuities. The City may, by written notice to the Consultant, cancel this Agreement if it
is found by the City that gratuities, in the form of economic opportunity, future employment,
entertainment, gifts or otherwise, were offered or given by the Consultant or any agent or
representative of the Consultant to any officer, agent or employee of the City for the purpose of
securing this Agreement. In the event this Agreement is canceled by the City pursuant to this
provision, the City shall be entitled, in addition to any other rights and remedies, to recover and
withhold from the Consultant an amount equal to 150% of the gratuity.
12.6
Agreement Subject to Appropriation. The City is obligated only to pay its obligations set
forth in the Agreement as may lawfully be made from funds appropriated and budgeted for that
purpose during the City's then current fiscal year. The City's obligations under this Agreement
are current expenses subject to the "budget law" and the unfettered legislative discretion of the
City concerning budgeted purposes and appropriation of funds. Should the City elect not to
appropriate and budget funds to pay its Agreement obligations, this Agreement shall be deemed
terminated at the end of the then-current fiscal year term for which such funds were appropriated
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RFQ #2017-20000133
Professional Engineering Services &
Other Related Services
and budgeted for such purpose and the City shall be relieved of any subsequent obligation under
this Agreement. The Parties agree that the City has no obligation or duty of good faith to budget
or appropriate the payment of the City's obligations set forth in this Agreement in any budget in
any fiscal year other than the fiscal year in which the Agreement is executed and delivered. The
City shall be the sole judge and authority in determining the availability of funds for its obligations
under this Agreement. The City shall keep Consultant informed as to the availability of funds for
this Agreement. The obligation of the City to make any payment pursuant to this Agreement is
not a general obligation or indebtedness of the City. Consultant hereby waives any and all rights
to bring any claim against the City from or relating in any way to the City's termination of this
Agreement pursuant to this section.
13.
Miscellaneous.
13.1
Independent Contractor. It is clearly understood that each Party will act in its individual
capacity and not as an agent, employee, partner, joint venturer, or associate of the other. An
employee or agent of one Party shall not be deemed or construed to be the employee or agent of
the other for any purpose whatsoever.
The Consultant acknowledges and agrees that the
Services provided under this Agreement are being provided as an independent contractor, not as
an employee or agent of the City. Consultant, its employees and subcontractors are not entitled
to workers' compensation benefits from the City. The City does not have the authority to supervise
or control the actual work of Consultant, its employees or subcontractors. The Consultant, and
not the City, shall determine the time of its performance of the services provided under this
Agreement so long as Consultant meets the requirements of its agreed Scope of Work as set
forth in Section 2 above and Exhibit 8. Consultant is neither prohibited from entering into other
contracts nor prohibited from practicing its profession elsewhere. City and Consultant do not
intend to nor will they combine business operations under this Agreement.
13.2
Applicable Law: Venue. Any action to enforce any provision of this Agreement or to obtain
any remedy with respect this Agreement shall be brought exclusively in the Superior Court, Yuma
County, Arizona (or, as may be appropriate, in the Justice Courts of Yuma County, Arizona or in
the United States District Court for the District of Arizona, if, and only if, the Superior Court lacks
jurisdiction over such action). The Parties expressly and irrevocably consent to the exclusive
jurisdiction and venue of such courts and expressly waive the right to transfer or remove any such
action.
13.3
Laws and Regulations. Consultant shall comply with the Americans with Disabilities Act
(ADA) and shall indemnify City for any costs, including but not limited to, damages, attorney's
fees, and staff time in any action or proceeding brought alleging violation of the ADA. Consultant
shall not discriminate against any person on the basis of race, religion, color, age, sex, or national
origin in the performance of this Agreement, and must comply with the terms and intent of Title
VI I of the Civil Rights Act of 1964, P.L. 88-354 (1964) and State Executive Order No. 2009-09.
The Consultant shall not to participate in or cooperate with an international boycott, as defined in
Section 999(b)(3) and (4) of the Internal Revenue Code of 1954, as amended, or engage in
conduct declared to be unlawful by Arizona state law. The Consultant shall include similar
requirements of all sub-Consultants in Agreements entered for performance of Consultant's
obligations under this Agreement. Consultant shall keep fully informed and shall at all times
during the performance of its duties under this Agreement ensure that it and any person for whom
the Consultant is responsible abides by, and remains in compliance with, all rules, regulations,
ordinances, statutes or laws affecting the Services, including, but not limited to, the following: (A)
existing and future City and County ordinances and regulations; (8) existing and future State and
Federal laws; and (C) existing and future Occupational Safety and Health Administration
standards. Consultant shall comply with all federal, state, and local laws, regulations, and
ordinances applicable to its performance under this Agreement.
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RFQ #2017-20000133
Professional Engineering Services &
Other Related Services
13.4
Amendments. This Agreement may be modified only by a written amendment signed by
persons duly authorized to enter into contracts on behalf of the City and the Consultant.
13.5
Provisions Required by Law. Each and every provision of law and any clause required by
law to be in the Agreement will be read and enforced as though it were included herein and, if
through mistake or otherwise any such provision is not inserted, or is not correctly inserted, then
upon the application of either Party, the Agreement will promptly be physically amended to make
such insertion or correction.
13.6
Severability. The provisions of this Agreement are severable to the extent that any
provision or application held to be invalid by a Court of competent jurisdiction shall not affect any
other provision or application of the Agreement which may remain in effect without the invalid
provision or application.
13.7
Entire Agreement: Interpretation: Parol Evidence. This Agreement represents the entire
agreement of the Parties with respect to its subject matter, and all previous agreements, whether
oral or written, entered into prior to this Agreement are hereby revoked and superseded by this
Agreement. No representations, warranties, inducements or oral agreements have been made
by any of the Parties except as expressly set forth herein, or in any other contemporaneous written
agreement executed for the purposes of carrying out the provisions of this Agreement. This
Agreement shall be construed and interpreted according to its plain meaning, and no presumption
shall be deemed to apply in favor of, or against the Party drafting the Agreement. The Parties
acknowledge and agree that each has had the opportunity to seek and utilize legal counsel in the
drafting of, review of, and entry into this Agreement.
13.8
Assignment: Delegation. No right or interest in this Agreement shall be assigned or
delegated by Consultant without prior, written permission of the City, signed by the City
Administrator. Any attempted assignment or delegation by Consultant in violation of this provision
shall be a breach of this Agreement by Consultant. The requirements of this Agreement are
binding upon the heirs, executors, administrators, successors, and assigns of both Parties.
13.9
Subcontracts. No subcontract shall be entered into by the Consultant with any other Party
to furnish any of the material or services specified herein without the prior written and signed
approval of the City.
The Consultant is responsible for performance under this Agreement
whether or not subcontractors are used.
Failure to pay subcontractors in a timely manner
pursuant to any subcontract shall be a material breach of this Agreement by Consultant.
13.10 Rights and Remedies. No provision in this Agreement shall be construed, expressly or by
implication, as waiver by the City of any existing or future right and/or remedy available by law in
the event of any claim of default or breach of this Agreement. The failure of the City to insist upon
the strict performance of any term or condition of this Agreement or to exercise or delay the
exercise of any right or remedy provided in this Agreement, or by law, or the City's acceptance of
and payment for services, shall not release the Consultant from any responsibilities or obligations
imposed by this Agreement or by law, and shall not be deemed a waiver of any right of the City
to insist upon the strict performance of this Agreement.
13.11 Attorneys' Fees. In the event either Party brings any action for any relief, declaratory or
otherwise, arising out of this Agreement or on account of any breach or default hereof, the
prevailing Party shall be entitled to receive from the other Party reasonable attorneys' fees and
reasonable costs and expenses, determined by the court sitting without a jury, which shall be
deemed to have accrued on the commencement of such action and shall be enforced whether or
not such action is prosecuted through judgment.
13.12 Liens. All materials or services shall be free of all liens and, if the City requests, a formal
release of all liens shall be delivered to the City.
Page 8 of 15
Consultant Engineering, Inc.
Revised: 02/2017
13.13 Offset.
RFQ #2017-20000133
Professional Engineering Services &
Other Related Services
A.
Offset for Damages. In addition to all other remedies at law or equity, the City may
offset from any money due to the Consultant any amounts Consultant owes to the City for
damages resulting from breach or deficiencies in performance or breach of any obligation
under this Agreement.
B.
Offset for Delinquent Fees or Taxes. The City may offset from any money due to
the Consultant any amounts Consultant owes to the City for delinquent fees, transaction
privilege taxes and property taxes, including any interest or penalties.
13.14 Notices and Requests. Any notice or other communication required or permitted to be
given under this Agreement shall be in writing and shall be deemed to have been duly given if (A)
delivered to the Party at the address set forth below, (B) deposited in the U.S. Mail, registered or
certified, return receipt requested, to the address set forth below or (C) given to a recognized and
reputable overnight delivery service, to the address set forth below:
If to the City: City of Yuma
If to Consultant:
Attn: City Administrator
Consultant Engineering, Inc.
One City Plaza
2855 S. 4th Avenue, Suite 111
Yuma, Arizona 85364
Yuma, AZ 85364
928-373-5011
480-258-4829
or at such other address, and to the attention of such other person or officer, as any Party may
designate in writing by notice duly given pursuant to this subsection. Notices shall be deemed
received (A) when delivered to the Party, (B) three (3) business days after being placed in the
U.S. Mail, properly addressed, with sufficient postage or (C) the following business day after being
given to a recognized overnight delivery service, with the person giving the notice paying all
required charges and instructing the delivery service to deliver on the following business day. If
a copy of a notice is also given to a Party's counsel or other recipient, the provisions above
governing the date on which a notice is deemed to have been received by a Party shall mean and
refer to the date on which the Party, and not its counsel or other recipient to which a copy of the
notice may be sent, is deemed to have received the notice.
13.15 Force Majeure. The Parties shall be excused from performance during the time and to
the extent that they are prevented from obtaining, delivering, or performing by act of God, fire,
strike, loss or shortage of transportation facilities, lock-out, commandeering of materials, products,
plants or facilities by the government, when satisfactory evidence is presented to the City,
provided that it is satisfactorily established that the non-performance is not due to the fault or
neglect of the Party not performing.
13.16 Confidentiality of Records. The Consultant shall establish and maintain procedures and
controls that are acceptable to the City for the purpose of ensuring that information contained in
its records or obtained from the City or from others in carrying out its obligations under this
Agreement shall not be used or disclosed by it, its agents, officers, or employees, except as
required to perform Consultant's duties under this Agreement.
Persons requesting such
information should be referred to the City. Consultant also agrees that any information pertaining
to individual persons shall not be divulged other than to employees or officers of Consultant as
needed for the performance of duties under this Agreement.
13.17 E-verify Requirements.
To the extent applicable under Arizona Revised Statutes
("A.R.S.") § 41- 4401, the Consultant and its subcontractors warrant compliance, and are
contractually obligated to comply, with all federal immigration laws and regulations that relate to
their employees and their compliance with the E-verify requirements under A.R.S. § 23-214(A)
("Immigration Warranty"). Consultant's or its subcontractor's failure to comply with Immigration
Page 9 of 15
Consultant Engineering, Inc.
Revised: 0212017
RFQ #2017-20000133
Professional Engineering Services &
Other Related Services
Warranty shall be deemed a material breach of this Agreement and may subject Consultant to
penalties up to and including termination of this Agreement at the sole discretion of the City.
The City retains the legal right to inspect the papers of all Consultant personnel who provide
services under this Agreement to ensure that Consultant or its subcontractors are complying with
the Immigration Warranty. Consultant agrees to assist the City in regard to any such inspections.
The City may, at its sole discretion, conduct random verification of the employment records of
Consultant and any subcontractor to ensure compliance with the Immigration Warranty.
Consultant agrees to assist the City in regard to any random verification performed.
Neither Consultant nor any subcontractor will be deemed to have materially breached the
Consultant Immigration Warranty if Contractor or subcontractor establishes that it has complied
with the employment verification provisions prescribed by Sections 27 4A and 27 4B of the Federal
Immigration and Nationality Act and the E-Verify requirements prescribed by A.R.S. § 23-214 (A).
13.18 Conflicting Terms. In the event of any inconsistency, conflict or ambiguity among the
terms of this Agreement, the Scope of Work, any City-approved Purchase Order, the Fee
Proposal, the RFQ and the Consultant's Proposal, the documents shall govern in the order listed
herein.
13.19 Non-Exclusive Agreement. This Agreement is entered into with the understanding and
agreement that it is for the sole convenience of the City. The City reserves the right to obtain like
goods and services from another source when necessary.
13.20 Cooperative Purchasing. Specific eligible political subdivisions and nonprofit educational
or public health institutions ("Eligible Procurement Unit(s)") are permitted to utilize procurement
agreements developed by the City, at their discretion and with the agreement of the awarded
Consultant.
Consultant may, at its sole discretion, accept orders from Eligible Procurement
Unit(s) for the purchase of the Materials and/or Services at the prices and under the terms and
conditions of this Agreement, in such quantities and configurations as may be agreed upon
between the Parties. All cooperative procurements under this Agreement shall be transacted
solely between the requesting Eligible Procurement Unit and Consultant. Payment for such
purchases will be the sole responsibility of the Eligible Procurement Unit. The exercise of any
rights, responsibilities or remedies by the Eligible Procurement Unit shall be the exclusive
obligation of such unit. The City assumes no responsibility for payment, performance or any
liability or obligation associated with any cooperative procurement under this Agreement. The
City shall not be responsible for any disputes arising out of transactions made by others.
13.21 Time of the Essence. Time is of the essence in this Agreement.
Unless otherwise
specifically provided, any consent to delay in Consultant's performance of its obligation is
applicable only to the particular transaction to which it relates, and is not applicable to any other
obligation or transaction.
13.22 Signatory Authority. Each person signing this Agreement represents that such person has
the requisite authority to execute this Agreement on behalf of the entity the person represents
and that all necessary formalities have been met.
13.23 Boycott of Israel. Pursuant to A.R.S. § 35-393.01, Consultant certifies that Consultant is
not engaged in a boycott of Israel as of the effective date of this Agreement, and agrees for the
duration of this Agreement to not engage in a boycott of Israel.
[SIGNATURES ON FOLLOWING PAGES]
Page 10 of 15
Consultant Engineering, Inc.
Revised: 0212017
RFQ #2017-20000133
Professional Engineering Services &
Other Related Services
IN ! j TNl=SS !HER.g OF, the Parties hereto have executed this Agreement as of this l'Sll+ day
of JA_Q~~O,Jj}ld( , 2017 ("Effective Date").
CITY OF Y
L
AS TO FORM:
-
£ &-2~
(f.r)
RichardW.Files, City Attorney
NT ENGINEERING, INC.
By ____ ,...._...._+------+----------
Print Name
31YI
Title s:J'. v,
Q;e Pres I de ~ +-
Date
fl /1/ u,q
CONSULTANT'S ACKNOWLEDGMENT
STATEOF AV< \...-Z..Or"\ 4.,_
)
'
) ss.
COUNTY OF 1'f\ a.I( l U!tf A__ )
On \\ 0 WV\h.u< 9 , 20J1, ~
~
05r" ~
[insert name] as the
Sg, V1 c.t.. f ~t ~ ~ ~ t
[person's title] of C{)ns1&.IHnf t ., :/:J~~!J;ll,. rname
of company] an
S · ~4j:j "O
[type of company] personally appeared before
me whose identity was proven to me on the basis of satisfactory evidence to be the person who
he/she claims to be, and acknowledged that he/she signed the above document on behalf of the
Cof\<JA.J,Ja,d: &i.7;b:«1C~,i,,1name of company] ~
}
• ~
Notary Public
(Affix notary seal here)
Consultant Engineering, Inc.
ALISSA J CONNELLY
..
Notary Public - Arizona
M1ricop1 County
MyCdmm, Expires May 12, 2020
Page 11 of 15
Revised: 02/2017
CITY OF YUMA
CERTIFICATE OF VOTE
(to be completed, signed and returned only if Consultant is a Corporation)
I,
Steve L. Bruflat
hereby certify that I am the duly qualified and acting Secretary of
Consultant Engineering, Inc. and I further certify that a meeting of the Directors of said
Company, duly called and held
June 25, 2014
, at which all Directors were
present and voting, the following vote was unanimously passed:
VOTED: To authorize and empower _____ M_a_h_e_r_O_s_m_a_n _________ to execute
Forms of General Bid, Contracts or Bonds on behalf of the Corporation.
I further certify that the above vote is still in effect and has not been changed or modified in any
respect.
A True Copy: ~
. ~ ·
----(N~o~t-ary~ P-u-b-li~- ~ ~ ~~-~~ -.
____________ _
My Commission Expires:
(Date)
Consultant Engineering, Inc.
®
ALISSA J CONNELLY
~
•
Notary Public - Arizona
•
i
Maricopa County
t
1
My Comm. Expires May 12, 2020 t
---- ------------------
Consultant Engineering, Inc.
EXHIBIT A
TO
PROFESSIONAL SERVICES AGREEMENT
BETWEEN
THE CITY OF YUMA
AND
CONSUL TANT ENGINEERING, INC.
Consultant's Proposal
Consultant Engineering, Inc.
EXHIBIT B
TO
PROFESSIONAL SERVICES AGREEMENT
BETWEEN
THE CITY OF YUMA
AND
CONSUL TANT ENGINEERING, INC.
Delivery Orders
Consultant Engineering, Inc.
EXHIBIT C
TO
PROFESSIONAL SERVICES AGREEMENT
BETWEEN
THE CITY OF YUMA
AND
CONSUL TANT ENGINEERING, INC.
Fee Proposal
Prime: Consultant Engineering, Inc.
RFQ: 2017-20000133
* HOURLY BILLING RATE
$205.00
$175.00
$125.00
$117.00
$110.00
$120.00
$135.00
$110.00
$95.00
$85.00
$150.00
$150.00
$130.00
* Hourly billing rates include: overhead, profit and applicable vehicle, laptop, equipment, mileage and per diem
November 3, 2017
Maher N. Osman, Sr. Vice President
Electrical / Landscape Inspector
Construction Inspector
CITY OF YUMA
PROFESSIONAL ENGINEERING AND OTHER RELATED CONSULTANT SERVICES
Resident Engineer, PE
CLASSIFICATION
Senior Construction Manager / Resident Engineer, PE
Construction Office Technician
Scheduler
Estimator
Description: Construction Management and Inspection
Registered Land Surveyor
Field Testing Technician
Field Office Manager
Registered Construction Landscape Architect
Project Supervisor/Chief Inspector
Sr. Construction Inspector