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Contract No. EM21-SV01
Page 1 of 10
CITY OF EL MIRAGE
PROFESSIONAL SERVICES CONTRACT
THIS PROFESSIONAL SERVICES CONTRACT is made and entered into this 17th day of August
2021, by and between the City of El Mirage, an Arizona municipal corporation (“City”), and Rick
Engineering Company, 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 provide professional land surveying services to
expand a previously prepared topographic survey for the Cheryl Drive from El Mirage Road to
121st Avenue project (“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. EM21-SV01
Page 2 of 10
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 Two Thousand Eight Hundred and
Fifty Dollars ($2,850.00).
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. EM21-SV01
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2.3
OWNERSHIP
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.
Consultant warrants, and agrees to indemnify, hold harmless and defend City for, from and against
any claim that any Work Product infringes on third-party proprietary interests. City may reuse the
Work Product at its sole discretion. In the event the Work Product is used for another project
without further consultations with Consultant, the City agrees to indemnify and hold Consultant
harmless from any claim arising out of the Work Product. In such case, City will also remove any
title block from the Work Product.
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 September 17, 2021.
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.
In the event of termination for cause, Consultant shall only be compensated a portion of
the agreed upon fee for such portion of the work that City agrees, in its sole discretion to
accept. City shall have no obligation to accept any portion of Consultant’s work if the
contract is terminated for cause, and shall have no obligation to pay Consultant for any
portion of the work, if any, not accepted by City.
Contract No. EM21-SV01
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If the Consultant materially fails to fulfill in a timely and proper manner its obligations
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 for Convenience
The City has the right to terminate this Contract for convenience or to abandon any portion
of the work for which Services have not been performed by the Consultant. In the event
the City terminates this Contract or any part of the Services as herein provided pursuant to
this Section 3.2.2, 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 such termination for convenience or abandonment, the 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
and accepted by the City. This fee shall be in an amount to be mutually agreed upon by the
Consultant and the City, based upon the scope of work set forth in Exhibit “A’ and the
payment schedule set forth in Article 2, hereof. If mutual agreement cannot be reached
after reasonable negotiation, the Contract Administrator shall determine the percentage of
satisfactory completion of each task set forth in the scope of work contained in Exhibit “A”
and the amount of compensation Consultant is entitled to for such work and the Contract
Administrator’s determination in this regard shall be final. The City shall make such final
payment within sixty (60) days after the Consultant has delivered the last of the partially
completed items.
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.
Contract No. EM21-SV01
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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.
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
Contract No. EM21-SV01
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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).
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:
Rick Engineering Company
Attn: Jason Segneri
22425 N. 16th Street, Suite #1
Phoenix, AZ 85024
In the case of City
City of El Mirage
Attn: City Manager
10000 N. El Mirage Road
El Mirage, Arizona 85335
With a copy to:
City of El Mirage
Attn: City Attorney
10000 N. 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.
Contract No. EM21-SV01
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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.
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
Contract No. EM21-SV01
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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
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
SEVERABILITY
If any term or provision of this Contract shall be found to be illegal or unenforceable, then
Contract No. EM21-SV01
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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.
CITY OF EL MIRAGE
CONSULTANT:
By: __Jason Segneri_________________
_______________________________
Print Name
By: J. Crystal Dyches
Its: City Manager
By: ______________________________
Signature
Its ___Principal____________________
Title
ATTEST:
____________________________
Sharon Antes, City Clerk
APPROVED AS TO FORM:
___________________________
Justin Pierce, City Attorney
Page 10 of 10
EXHIBIT “A”
July 27, 2021
Bryce Christo, PE
City of El Mirage
10000 N. El Mirage Road,
El Mirage AZ 85355
623.876.2974
bchirsto@elmirageaz.com
SUBJECT: Cheryl Drive Additional Topo, El Mirage AZ
Dear Bryce:
Rick Engineering Company is pleased to submit this proposal to provide professional surveying services
for the above referenced property.
SCOPE OF WORK
Figure 1 – Subject Property
Topographic location for Design
Location and elevation of existing surface utilities and improvements onsite including pavement,
curbs, sidewalks and drainage patterns/basins.
Obtain flow line invert elevations of any existing sanitary sewer and storm sewer manholes adjacent
to the site as shown above.
Plot locations of underground utility lines per the record agency maps available at the time of the
survey.
Collect elevations and pipe inverts near the swc of the property shown above.
Full width cross sections of streets at 50-foot intervals adjacent to the site as identified above and
including overlap with the previous work done on Cheryl Ave to the West.
All elevations will be on the municipal Vertical Elevation Datum.
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Place temporary markers along the property line at the 3 locations identified above (yellow circles).
Provide topographic base map in electronic format to be used for Civil Engineering Design.
FEES
Topographic Survey:
$2,350.00
In addition to the fees stated above, a budget of $500 should be anticipated for direct expenses that
include deliveries, plotting, reproduction services, and recording fees.
TIMELINE
It is anticipated that this work will take approximately 15-20 business days after authorization to proceed
to complete the Survey.
Sincerely,
Jason Segneri, RLS
Land Surveyor
Principal
ACCEPTED THIS DAY OF , 2021
BY: ________________________________________________________________
CLIENT
Invoices for this project to be mailed to:
Company: _______________________________________________________________________
Address: ________________________________________________________________________
City/State/Zip: __________________________________________________________________
Telephone: ___________________________________ Email: ________________ ____________
Contact person: __________________________________________________________________
Please complete, sign and return a copy to RICK ENGINEERING COMPANY
Maricopa County GIO, Maricopa County
O
6/23/2021 10:04:08 AM
Map
Locate 36" HDPE
outlet and provide
invert elevation.
Confirm pipe size.
Cross section at
50' intervals,
including top and
bottom of slopes
and maintenance
roads. Critical
component is the
basin.
Provide additional shots on
headwall and surrounding
depressed area. Confirm
pipe is 28" x 20" CMPA.
Drainage improvements are
planned in this area.
Locate and shoot elevations on pipe
inverts, headwalls and surrounding area
within this depressed area, including
fence lines.
Confirm pipe is 33" CMP.
Cross section 121st
25' and 50' north of
existing pipe (fence
to fence).
and monitoring well
Stake shared
property line at the
three locations
circled in yellow
Shoot area around
outfall pipe
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STANDARD PROVISIONS: ARIZONA 2021
The Client and Consultant agree that the following provisions shall be a part of their Agreement:
1. This Agreement shall be binding upon the heirs, partners, successors, executors, administrators and assigns of the Client and Consultant.
2. In the event of any increase of costs due to the granting of wage increases and/or other employee benefits to field or office employees due to
the terms of any labor agreement, rise in the cost of living, or increase in any applicable prevailing wage during the lifetime of this Agreement,
such increase shall be applied to all remaining compensation. For services provided on a time and materials or hourly rate basis, increases in the
applicable rates will be reflected in the billing statement or invoice for the month following the increase.
3. Should litigation at law or equity arising out of this Agreement, including but not limited to an action for declaratory relief, be brought to
enforce or interpret any term or provision of this Agreement, or to collect any portion of the amount payable under this Agreement or litigation
commenced either directly or by way of a cross-complaint whether arising out of contract or tort, including a cross-complaint for indemnity, for
failure or alleged failure to perform or for errors, omissions, or negligence, the prevailing party shall be entitled, in addition to any other award, to
all litigation and collection expenses, any and all costs of defense, including attorney's fees, expert witness fees, witness fees and court costs and
any and all other expenses incurred.
4. Neither the Client nor Consultant shall assign his interest in this Agreement without the written consent of the other.
5. This Agreement shall be governed by and construed in accordance with the laws of the State of Arizona. This Agreement contains the entire
agreement between Client and Consultant relating to the project and the provision of services by Consultant to the project. Any agreements,
promises, negotiations or representations not expressly set forth herein, are of no force or effect. Subsequent modifications to this Agreement
shall be in writing and signed by both Client and Consultant.
6. Conditions or representations, alterations, detractions from or to the terms hereof, including delineations hereon, shall not be valid unless they
are in writing and signed by both Client and Consultant.
7. Client agrees that the Consultant is not responsible for damages arising directly or indirectly from any delays for causes beyond the
Consultant's control. For purposes of this Agreement, such causes include, but are not limited to, strikes or other labor disputes; severe weather
disruptions or other natural disasters; fires, riots, war or other emergencies or acts of God; failure of any government agency to act in timely
manner; failure of performance by the Client or the Client's contractors or consultants; issuance of regulations, orders or other governmental
actions that limit, restrict or delay the ability of Consultant or Consultant’s workforce to perform; or discovery of any hazardous substances or
differing site conditions. In addition, if the delays resulting from any such causes increase the cost or time required by the Consultant to perform
its services in an orderly and efficient manner, the Consultant shall be entitled to an equitable adjustment in schedule and/or compensation.
8. In the event litigation is instituted under the terms and conditions of this Agreement, such litigation is to be brought and tried in the
appropriate court in the state and county in which the project is located and the parties waive the right to have brought, tried in, or removed to any
other county or judicial jurisdiction.
9. Client acknowledges that Consultant is not responsible for the performance of work by third parties, including, but not limited to, the
construction contractor(s), subcontractors, governmental agencies, construction managers, architects, or other consultants.
10. Consultant shall only act as an advisor in all governmental relations. Consultant shall not be liable for damages resulting from the actions or
inactions of governmental agencies including, but not limited to, permit processing, environmental impact reports, dedications, general plans and
amendments thereto, zoning matters, annexations or consolidations, use or conditional use permits, project or plan approvals and building
permits.
11. Consultant makes no warranty, either express or implied, as to the findings, recommendations, plans, specifications, or professional advice.
Consultant shall perform in accordance with generally accepted engineering and/or surveying practices or standards in effect at the time of
performance in the locale where the services are rendered.
12. Consultant makes no representation, guarantee, warranty, express or implied concerning estimated cost figures made in connection with
maps, plans, specifications, or drawings, other than that all such figures are estimates only. Consultant shall not be responsible for fluctuations in
cost factors.
13. Consultant makes no representations concerning estimates of areas. Estimates of areas are estimates only and are not to be considered
precise unless Consultant specifically agrees to provide the precise determination of such areas.
14. Client and Consultant agree to cooperate in any and every way or manner on project.
15. Consultant makes no representation, either express or implied, concerning soils or geological surveys or subsurface soil tests or general soils
testing and reporting.
16. Upon written request, each of the parties hereto shall execute and deliver, or cause to be executed and delivered, such additional instruments
and documents which may be necessary and proper to carry out the terms of this Agreement.
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17. The terms and provisions of this Agreement shall not be construed to alter, waive, or affect any lien or stop notice rights which the
Consultant may have for the performance of services under this Agreement.
18. One or more waivers of any term, condition or covenant by a party shall not be construed as a waiver of subsequent breach of the same or
any other term, condition, or covenant.
19. In the event Client fails to pay Consultant promptly or within sixty (60) days after invoices are rendered, then Client agrees that Consultant
shall have the right to consider said default a total breach of this Agreement and, upon written notice, the duties, obligations and responsibilities
of the Consultant under this Agreement are terminated. In such event, Client shall then promptly pay the Consultant for all the fees, charges, and
services performed to date by Consultant.
20. In the event any term, condition, covenant or provision of this Agreement shall be held to be invalid, void or unenforceable, the remaining
terms, conditions, covenants and provisions of this Agreement shall be valid and binding on the parties hereto.
21. The Client agrees it will require that the Contractor hold harmless, indemnify and defend the Client, the Architect, the Consultant and its
subconsultants, and each of their officers, directors, principals, employees and agents, from any and all liability claims, losses or damages arising
or alleged to arise from the performance of the work described herein, but not including the sole negligence or willful misconduct of the Client,
the Architect or the Consultant or their respective subconsultants, officers directors, principals, employees and agents.
22. The Client shall indemnify and hold Consultant harmless with regard to all liability or claims of any kind, including all investigation and
defense costs, connected directly or indirectly with this project, which liabilities or claims do not result from the sole negligence or willful
misconduct of the Consultant.
23. Consultant has a right to complete all services agreed to be rendered pursuant to this Agreement. In the event this Agreement is terminated
before the completion of all services, unless Consultant is responsible for such early termination, Client agrees to release Consultant from all
liability for services performed.
24. In the event work prepared or partially prepared by the Consultant be suspended, abandoned, or terminated, the Client shall pay the
Consultant for all work, fees, deposits, charges and services provided, not to exceed any maximum amount specified herein. Client
acknowledges if project work is suspended and restarts, there may be additional charges due to suspension which shall be paid by Client as extra
work.
25. Client agrees that if Client requests services not specified pursuant to the scope of services described within this Agreement, Client agrees to
pay all such additional services as extra work if authorized in writing.
26. Consultant shall be entitled to immediately, and without notice, suspend the performance of any and all of its obligations pursuant to this
Agreement if Client files a voluntary petition seeking relief under the United States Bankruptcy Code or if there is an involuntary bankruptcy
petition filed against Client in the United States Bankruptcy Court, and that petition is not dismissed fifteen (15) days after its filing. Any
suspension of services made pursuant to the provisions of this Paragraph shall continue until such time as this Agreement has been fully and
properly assumed or adequate assurance provided in accordance with the applicable provisions of the United States Bankruptcy Court and in
compliance with the final order or judgments issued by the Bankruptcy Court.
27. If payment for Consultant's services is to be made on behalf of Client by a third party, Client agrees that Consultant shall not be required to
indemnify the third party, in the form of an endorsement or otherwise, as a condition of receiving payment for services.
28. Client agrees to purchase and maintain, during construction, builder's liability special peril or other similar insurance which will name
Consultant as an additional insured. Client also agrees to require the contractor or contractors to purchase and maintain liability insurance,
including broad form general liability coverage, comprehensive bodily injury, broad form property damage, independent contractors insurance,
completed operations and contractual liability coverage, and the exclusions for explosion, collapse or underground coverage shall be deleted;
automobile including bodily injury, property damage, owned, non-owned and hired vehicles; and worker's compensation insurance including
employers liability coverage, all of which shall name the Client and Consultant as additional insureds. Certificates of such insurance shall be
provided to Consultant and the certificate(s) shall include provisions that the above policies are primary and non-contributory with Consultant's
insurance and that coverage will not be canceled unless at least thirty days prior written notice has been given to Consultant.
29. In the event that the plans, specifications, and/or field work covered by this Agreement are those required by various governmental agencies
and one or more such governmental agency changes its policies, ordinances, procedures or requirements after the date of this Agreement, any
additional office or field work required, shall be paid by Client as extra work.
30. Services provided within the Agreement are for the exclusive use of the Client. Nothing contained in this Agreement shall be construed to be
for the benefit of any person not a party to this Agreement and no third-party beneficiary rights are created.
31. All original papers, drawings, notes, documents and other work product of Consultant, and copies thereof, produced as a result of the
Agreement represent professional services, shall remain the property of the Consultant, and Consultant shall retain all copyright and other
ownership interests. Client shall have a nonexclusive license to use Consultant’s work product and any items in which Consultant maintains
ownership and/or copyright interest so long as all fees to be paid under this Agreement have been paid. Any nonexclusive license Client obtains
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under this Agreement terminates upon the termination of this Agreement. Consultants work product may be used by Consultant without consent
of the Client.
32. In the event that any changes are made in the plans and/or specifications by the Client or persons other than the Consultant, and such changes
are not consented to in writing by Consultant, Client acknowledges that the changes and their effects are not the responsibility of Consultant and
Client agrees to release Consultant from all liability arising from the use of such changes and agrees to defend, indemnify and hold Consultant, its
officers, directors, principals, agents and employees harmless from and against all claims, demands, damages or costs arising from the changes.
33. Client agrees not to use or permit any other person to use plans, drawings or other work product prepared by Consultant, which plans,
drawings or other work product are not signed and stamped or sealed by Consultant and/or are not final. Client agrees to be liable and
responsible for any use of non-final plans, drawings or work product or plans, drawings or work product not signed, and stamped or sealed by
Consultant and waives liability against Consultant for their use. Client further agrees that final plans, drawings, and other work products are for
the exclusive use of Client and may be used by Client only for the project described in this Agreement.
34. In the event that any staking is destroyed, damaged, or disturbed by an act of God or parties other than Consultant, the cost of re-staking shall
be paid for by the Client as extra work. If the scope of services provided for pursuant to this Agreement does not include construction staking by
Consultant, Client acknowledges that changes, clarifications, adjustments, and modifications may be necessary because of changed field or other
conditions. Client will indemnify and defend Consultant for construction staking by others and from claims arising from changes, clarifications,
adjustments and modifications which may be necessary to reflect changed field or other conditions, except claims caused by the sole negligence
or willful misconduct of Consultant.
35. Questions concerning location or changes in construction stakes or questions concerning information on plans and specifications must be
called to the attention of the Consultant upon discovery and before corrective remedy.
36. The Consultant shall be notified 24 hours in advance, so that he may check forms, for grade and alignment only, prior to the pouring of
concrete for cast-in-place concrete structures, thrust blocks, electrical boxes, bridge abutments or piers, or any similar structures staked by
Consultant. Consultant can assure compliance to proper grade and alignment only when it has been advised to check in advance.
37.(a) If the scope of services to be provided by Consultant pursuant to the terms of this Agreement include the preparation of engineering
drawings but exclude construction staking services, Client acknowledges that such services normally include coordinating civil engineering
services and the preparation of as-built drawings pursuant to Uniform Building Code Chapter 70 and/or other statutes, ordinances or laws, and
Client will be required to retain such services from another consultant or pay Consultant pursuant to this Agreement for such services as extra
work.
(b) If the scope of services to be provided by Consultant pursuant to the terms of the Agreement, include construction staking services, but
exclude the preparation of the engineering drawings to be used for construction and construction staking, Client acknowledges the coordination of
civil engineering services and the preparation of as-built drawings as required by statute, ordinance or law may require the retention by Client of
another consultant or the original consultant responsible for the design, or pay Consultant pursuant to this Agreement for such services as extra
work. Client acknowledges that if Consultant is retained to prepare as-built drawings of plans prepared by others, Client will indemnify, defend
and hold Consultant harmless from any and all liability in connection with the plans and specifications prepared by others, and the performance
of work by Consultant on this project as set forth in Paragraph 44.
38. In the event Client discovers or becomes aware of apparent errors or omissions, field conditions or discrepancies during the construction
phase of the project, which apparent errors or omissions, field conditions or discrepancies are resolvable by Consultant, Client agrees to notify
Consultant and engage Consultant to resolve the problem before construction activities commence or further construction activity proceeds.
Further, Client agrees to have a provision in its construction contracts for the project which require the contractor to notify Client of any such
apparent errors or omissions, field conditions or discrepancies so that Client may, in turn, notify Consultant pursuant to the provisions of this
Paragraph.
39. Client shall pay the costs of checking and inspection fees, zoning and annexation application fees, assessment fees, soils engineering fees,
soil testing fees, aerial topography fees, and other fees and deposits, permits, bond premiums, title company charges, blueprints and
reproductions, and all other charges not specifically covered by the terms of this Agreement.
40. All fees and other charges will be billed monthly as the work progresses and the net amount shall be due at the time of billing.
41. A late payment CHARGE will be computed by the Consultant at the periodic rate of 1.5% per month, not to exceed the maximum legal rate,
which will be applied to any unpaid balance commencing thirty (30) days after the date of the original billing.
42. Client agrees that the balance as stated on the billings from Consultant to Client are correct, conclusive and binding on the Client unless
Client within forty-five (45) days from the date of receipt of such billing, notifies Consultant in writing of the particular items that are alleged to
be incorrect.
43. In consideration of the Consultant's fee for services, the Client agrees that the Consultant will perform no onsite construction review,
construction management, supervision of construction of engineering structures or other construction supervision for this project unless
specifically contracted for; that such services will be provided by others; and that the Client shall defend, indemnify and hold the Consultant, its
officers, directors, principals, agents and employees harmless from any and all liability, real or alleged, arising or resulting from the performance
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of construction review, construction management, supervision of construction of engineering structures or supervision by others. Further, Client
acknowledges that Consultant will be unable to correct errors or omissions in the plans which customarily become apparent and resolvable during
construction review.
44. Client agrees that, in accordance with generally accepted construction practices, the construction contractor will be required to assume sole
and complete responsibility for job site conditions during the course of construction of the project, including safety of all persons and property;
that this requirement shall be made to apply continuously and not be limited to normal working hours. The Client further agrees to defend,
indemnify, and hold the Consultant harmless from any and all liability in connection with the performance of work on this project, excepting
liability arising from the sole negligence or willful misconduct of the Consultant.
45. Client agrees to limit the liability of Consultant, its principals and employees to the Client, all contractors and subcontractors on the project,
due to professional negligent acts, errors or omissions of the Consultant, breach of contract or any other cause of action however pled to the
sum of $50,000 or the Consultant's fee, whichever is greater; except that if the contract amount, including any addenda or other contracts
pertaining to or covering services related to the project, exceeds $150,000, the liability of Consultant shall not exceed $150,000. Client further
agrees to notify any contractor and subcontractor who may perform work in connection with any design, report or study prepared by Consultant
of such limitation of liability, and to require as a condition precedent to their performing their work, a like indemnity of liability on their part as
against the Consultant.
46. The Client hereby agrees to bring no claim for negligence, breach of contract, indemnity or otherwise against the Consultant, its principals,
employees and agents if such claim, in any way, would involve the Consultant's services for the investigation, detection, abatement, replacement,
use or specification, or removal of products, materials or processes containing asbestos, asbestos cement pipe, and/or hazardous materials (as
defined by state, federal and/or local laws or ordinances). Client further agrees to defend, indemnify and hold harmless Consultant, its officers,
directors, principals, employees and agents from any asbestos, asbestos cement pipe, and/or hazardous waste material related claims that may be
brought by third parties as a result of the services provided by the Consultant pursuant to this Agreement except claims caused by the sole
negligence or willful misconduct of the Consultant.
47. Client acknowledges that Consultant's scope of services for this project does not include any services related, in any way, to asbestos and/or
hazardous waste. Should Consultant or any other party encounter such materials on the job site, or should it in any way become known that such
materials are present or may be present on the job site or any adjacent or nearby areas which may affect Consultant's services, Consultant may, at
its option, terminate work on the project until such time as Client retains a specialist contractor to abate and/or remove the asbestos and/or
hazardous waste materials and warrant that the job site is free from any hazard which may result from the existence of such materials.
48. Digital data files shall be provided to Client only if such delivery has been specified in the scope of services set forth in this Agreement. If
the scope of services does not specify that digital data files shall be delivered, all costs associated with delivery of digital data files shall be paid
by Client. Client agrees that all digital data files delivered by Consultant are to be used exclusively to fulfill the scope of this Agreement. Client
agrees to hold Consultant harmless for any use by client of this data outside or beyond the scope of this Agreement.
49. Consultant makes the following representations as to the compatibility of digital data files:
(a) All data files are to be used with compatible hardware and software versions as used by Consultant at the time file copies were created.
(b) Consultant makes no representation as to the compatibility of any data files other than for the hardware and software versions used by
Consultant to create the data files.
(c) Client agrees to hold Consultant harmless for any use of data files on any hardware or software versions other than those which were used
by Consultant to create them.
(d) If Client requires or requests any special or specific file structure, format or software that is different from those used by Consultant at the
time Consultant is performing the services set forth in this Agreement, unless otherwise specified in this Agreement, all costs associated with
creating the file structure or format, and/or acquiring necessary software and/or hardware, shall be the responsibility of Client.
50. After the time final data files have been delivered per terms of this Agreement, Consultant will not be held responsible for maintaining copies
of any digital data related to this Agreement.
51. Client agrees that if formats for deliverables of digital files are not specified in this Agreement, they will be delivered using the standards and
versions of Consultant at the time of creation.
52. Client agrees not to use any digital files (drawing or data file), in whole or in part, for any purpose or project other than the project which is
the subject of this Agreement. Client waives any and all claims against Consultant resulting in any way from any changes not authorized and/or
authored by Consultant and/or reuse of the drawings or data for any other project without the express written consent by Consultant. The transfer
of drawings or data in electronic media or format shall not be deemed a sale, and Consultant makes no warranties, either express or implied, of
merchantability or fitness for a particular purpose.
53. Because data stored on electronic media can deteriorate undetected or be modified without the Consultant’s knowledge, the Client agrees that
it will accept responsibility for the completeness, correctness, or readability of the electronic media after an acceptance period of 30 days after
delivery of the electronic files, and that upon the expiration of this acceptance period, client will indemnify and save harmless the Consultant for
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any and all claims, losses, costs, damages, awards or judgments arising from use of the electronic media files or output generated from them. The
Consultant agrees that it is responsible for the accuracy of the sealed drawings that accompany the submittal, and that such accuracy is defined as
the care and skill ordinarily used by members of the Consultants profession practicing under similar conditions at the same time and in the same
locality. Consultant makes no warranties, express or implied, under this Agreement or otherwise, in connection with the Consultant’s services.
54. Prior to the commencement of any legal action, in an effort to resolve any conflicts that arise during the design or construction of the project
which is the subject of this Agreement, or following completion of the project, Client and Consultant agree that all disputes between them arising
out of or relating to this Agreement, the services performed pursuant to this Agreement, or relating in any way to the project, shall be submitted to
nonbinding mediation unless the parties mutually agree otherwise. Each party shall be represented at the mediation by a person or persons with
the authority to bind the party to any agreement, obligation or resolution resulting from the mediation. Each of the parties agrees to include a
similar mediation provision in all agreements with any other contractors and consultants retained for the project and to require such contractors
and consultants to include a similar provision in all agreements with subcontractors, sub-consultants, suppliers or fabricators, thereby providing
mediation as the primary method for dispute resolution between the parties to those agreements.
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