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Contract No. EM21-NT02
Page 1 of 10
CITY OF EL MIRAGE
PROFESSIONAL SERVICES CONTRACT
THIS PROFESSIONAL SERVICES CONTRACT is made and entered into this 5th day of October
2021, by and between the City of El Mirage, an Arizona municipal corporation (“City”), and Kimley-
Horn and Associates, Inc. an Arizona corporation (“Consultant”).
RECITALS
A. The City of El Mirage is authorized and empowered by provisions of the City Code to execute
contracts for professional services by and through its City Manager;
B. The City desires to contract for Consultant to provide professional engineering services for the
installation of speed cushions along 119th Avenue between Cactus Road and Myer Lane
(“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-NT02
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1.3
DOCUMENTATION AND DATA
All documents, including but not limited to, data compilations, studies, and reports which are
prepared in the performance of this Contract are to be, and remain the property of, the City and are
to be delivered to the Contract Administrator before final payment is made to the Consultant.
2.1
FEE SCHEDULE, RECORDS, AUDIT RIGHTS
The fee Consultant shall be paid for all Services provided pursuant to the terms of this Contract,
inclusive of all expenses under this Contract, shall not exceed Five Thousand Seven Hundred
Dollars ($5,700.00).
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-NT02
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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 November 4, 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-NT02
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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-NT02
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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-NT02
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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:
Kimley-Horn and Associates, Inc.
Attn: Kimberly Carroll, P.E., PTOE
7740 N. 16th Street, Suite 300
Phoenix, AZ 85020
In the case of City
City of El Mirage
Attn: City Manager
10000 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-NT02
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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
whatsoever for the other party’s own negligence or for the negligence of others.
Contract No. EM21-NT02
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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
notwithstanding such illegality or unenforceability, this Contract shall remain in full force and
Contract No. EM21-NT02
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effect and such term or provision shall be deemed to be deleted.
CITY OF EL MIRAGE
CONSULTANT:
By: ______________________________
_______________________________
Print Name
By: J. Crystal Dyches
Its: City Manager
By: ______________________________
Signature
Its _______________________________
Title
ATTEST:
____________________________
Sharon Antes, City Clerk
APPROVED AS TO FORM:
___________________________
Justin Pierce, City Attorney
Page 10 of 10
EXHIBIT “A”
September 1, 2021
Mr. Bryce Christo, P.E.
Assistant City Engineer
City of El Mirage
10000 N. El Mirage Road
El Mirage, Arizona 85335
Re:
COEM Speed Cushion Evaluation
119th Avenue – Myer Lane to Cactus Road
Dear Bryce:
Kimley-Horn and Associates, Inc. (Kimley-Horn) is pleased to submit this letter agreement to the City
of El Mirage (COEM) for providing professional traffic engineering services in El Mirage, Arizona. The
scope of work has been defined as 119th Avenue from Myer Lane to Cactus Road (approximately 3,300
LF). Based on discussion with City staff and research of the area we understand the following:
1. 119th Avenue is classified as a collector roadway within COEM and has a posted speed limit of 30
miles per hour.
2. COEM previously collected speed and volume counts along the 119th Avenue street segment. Per
the COEM Policy for Speed Cushion Installation, the segment was found to meet criteria for
further evaluation.
Scope of Services
Kimley-Horn will provide the services specifically set forth below.
Task 1: Project Administration and Management
Kimley-Horn administration work consists of the tracking and coordinating project budget, schedule and
billing with COEM for the duration of the project. Kimley-Horn is estimating 4 weeks for completion of
the work following written notice to proceed.
Task 2: Field Review
Kimley-Horn will conduct a field investigation to record existing traffic control devices, geometric
conditions, utility, driveway locations, and sight distance constraints. These details will play a role in
the establishing a location that will minimize impacts to private properties.
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7740 N. 16th Street, Suite 300, Phoenix, Arizona 85020
602-944-5500
Task 3: Speed Cushion Evaluation
Kimley-Horn will review and evaluate the study segment and document results from the speed and
volume counts provided by COEM. The evaluation will consist of utilizing COEM and other agency
Traffic Calming Polices to assist in the placement of speed cushions along each segment. Other traffic
calming devices (i.e. speed humps, speed tables, chicanes, bulb-outs) will not be explored. The results
of the research, field review, and evaluation will be used to determine preliminary recommended
locations of speed cushions to be submitted to COEM.
Task 4: Exhibit
Kimley-Horn will provide one (1) exhibit for the study segment. The exhibit will include the
recommended locations of the speed cushions and signage per COEM standard details. Parcel R/W
will be based on Maricopa Assessor’s map information.
Kimley-Horn will utilize Nearmaps to obtain scalable aerial and AutoCAD to develop the exhibit. The
exhibit will be prepared on an 11 x 17 sheet.
Task 5: Documentation of Recommendations
Kimley-Horn will summarize the process and results in an illustrated technical memorandum. Two
submittals (draft and final) will be made to COEM.
Kimley-Horn will respond to and incorporate COEM comments into the final technical memorandums
and exhibits prepared. A PDF copy will be submitted electronically.
Services Not Included
Any other services, including but not limited to the following, are not included in this Agreement:
•
Meetings
•
Detailed Design and Construction Documents
•
Cost Estimating
•
Topographic survey
•
Public Involvement or outreach (By City)
•
Other department approval and coordination (By City)
•
Traffic Data Collection
Any services not specifically provided for in the above scope will be billed as additional services and
performed at our then current hourly rates.
Schedule
Kimley-Horn will begin work upon receipt of notice to proceed. The draft technical memorandum will
be completed within three weeks following written notice to proceed. The final technical memorandums
will be completed within one week of receipt of the comments. This time includes resolution of
comments received, revising the document, and resubmittal electronically.
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7740 N. 16th Street, Suite 300, Phoenix, Arizona 85020
602-944-5500
Fee and Expenses
Kimley-Horn will perform the services in Tasks 1 - 5 for the total lump sum fee of $5,700, which includes
mileage expenses associated with the field review. Lump sum fees will be invoiced monthly based upon
the overall percentage of services performed.
We appreciate the opportunity to provide these services to you. Please contact me if you have any
questions at 602-906-1191 or zack.handy@kimley-horn.com
Very truly yours,
KIMLEY-HORN AND ASSOCIATES, INC.
By: Zack Handy, P.E
Project Manager
CITY OF EL MIRAGE
Signature
Date
Title
Rev 10/20
KIMLEY-HORN AND ASSOCIATES, INC.
STANDARD PROVISIONS
(1) Consultant's Scope of Services and Additional Services. The Consultant will perform only the services
specifically described in this Agreement. If requested by the Client and agreed to by the Consultant, the Consultant
will perform Additional Services, which shall be governed by these provisions. Unless otherwise agreed to in
writing, the Client shall pay the Consultant for any Additional Services an amount based upon the Consultant’s
then-current hourly rates plus an amount to cover certain direct expenses including telecommunications, in-house
reproduction, postage, supplies, project related computer time, and local mileage. Other direct expenses will be
billed at 1.15 times cost.
(2) Client's Responsibilities. In addition to other responsibilities herein or imposed by law, the Client shall:
(a) Designate in writing a person to act as its representative, such person having complete authority to transmit
instructions, receive information, and make or interpret the Client's decisions.
(b) Provide all information and criteria as to the Client's requirements, objectives, and expectations for the project
and all standards of development, design, or construction.
(c) Provide the Consultant all available studies, plans, or other documents pertaining to the project, such as
surveys, engineering data, environmental information, etc., all of which the Consultant may rely upon.
(d) Arrange for access to the site and other property as required for the Consultant to provide its services.
(e) Review all documents or reports presented by the Consultant and communicate decisions pertaining thereto
within a reasonable time so as not to delay the Consultant.
(f) Furnish approvals and permits from governmental authorities having jurisdiction over the project and approvals
and consents from other parties as may be necessary.
(g) Obtain any independent accounting, legal, insurance, cost estimating and feasibility services required by Client.
(h) Give prompt written notice to the Consultant whenever the Client becomes aware of any development that
affects the Consultant's services or any defect or noncompliance in any aspect of the project.
(3) Period of Services. Unless otherwise stated herein, the Consultant will begin work after receipt of a properly
executed copy of this Agreement. This Agreement assumes conditions permitting continuous and orderly progress
through completion of the services. Times for performance shall be extended as necessary for delays or
suspensions due to circumstances that the Consultant does not control. If such delay or suspension extends for
more than six months, Consultant’s compensation shall be renegotiated.
(4) Method of Payment. Client shall pay Consultant as follows:
(a) Invoices will be submitted periodically for services performed and expenses incurred. Payment of each invoice
will be due within 25 days of receipt. The Client shall also pay any applicable sales tax. All retainers will be held
by the Consultant and applied against the final invoice. Interest will be added to accounts not paid within 25 days
at the maximum rate allowed by law. If the Client fails to make any payment due under this or any other agreement
within 30 days after the Consultant's transmittal of its invoice, the Consultant may, after giving notice to the Client,
suspend services and withhold deliverables until all amounts due are paid.
(b) If the Client relies on payment or proceeds from a third party to pay Consultant and Client does not pay
Consultant’s invoice within 60 days of receipt, Consultant may communicate directly with such third party to secure
payment.
(c) If the Client objects to an invoice, it must advise the Consultant in writing giving its reasons within 14 days of
receipt of the invoice or the Client’s objections will be waived, and the invoice shall conclusively be deemed due
and owing. If the Client objects to only a portion of the invoice, payment for all other portions remains due.
(d) If the Consultant initiates legal proceedings to collect payment, it may recover, in addition to all amounts due,
its reasonable attorneys' fees, reasonable experts' fees, and other expenses related to the proceedings. Such
expenses shall include the cost, at the Consultant's normal hourly billing rates, of the time devoted to such
proceedings by its employees.
(e) The Client agrees that the payment to the Consultant is not subject to any contingency or condition. The
Consultant may negotiate payment of any check tendered by the Client, even if the words “in full satisfaction” or
words intended to have similar effect appear on the check without such negotiation being an accord and
satisfaction of any disputed debt and without prejudicing any right of the Consultant to collect additional amounts
from the Client.
(5) Use of Documents. All documents and data prepared by the Consultant are related exclusively to the services
described in this Agreement, and may be used only if the Client has satisfied all of its obligations under this
Agreement. They are not intended or represented to be suitable for use or reuse by the Client or others on
extensions of this project or on any other project. Any modifications by the Client to any of the Consultant’s
documents, or any reuse of the documents without written authorization by the Consultant will be at the Client's
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sole risk and without liability to the Consultant, and the Client shall indemnify, defend and hold the Consultant
harmless from all claims, damages, losses and expenses, including but not limited to attorneys' fees, resulting
therefrom. The Consultant’s electronic files and source code remain the property of the Consultant and shall be
provided to the Client only if expressly provided for in this Agreement. Any electronic files not containing an
electronic seal are provided only for the convenience of the Client, and use of them is at the Client’s sole risk. In
the case of any defects in the electronic files or any discrepancies between them and the hardcopy of the
documents prepared by the Consultant, the hardcopy shall govern.
(6) Opinions of Cost. Because the Consultant does not control the cost of labor, materials, equipment or services
furnished by others, methods of determining prices, or competitive bidding or market conditions, any opinions
rendered as to costs, including but not limited to the costs of construction and materials, are made solely based
on its judgment as a professional familiar with the industry. The Consultant cannot and does not guarantee that
proposals, bids or actual costs will not vary from its opinions of cost. If the Client wishes greater assurance as to
the amount of any cost, it shall employ an independent cost estimator. Consultant's services required to bring costs
within any limitation established by the Client will be paid for as Additional Services.
(7) Termination. The obligation to provide further services under this Agreement may be terminated by either
party upon seven days' written notice in the event of substantial failure by the other party to perform in accordance
with the terms hereof, or upon thirty days’ written notice for the convenience of the terminating party. The
Consultant shall be paid for all services rendered and expenses incurred to the effective date of termination, and
other reasonable expenses incurred by the Consultant as a result of such termination.
(8) Standard of Care. The standard of care applicable to Consultant’s services will be the degree of care and
skill ordinarily exercised by consultants performing the same or similar services in the same locality at the time the
services are provided. No warranty, express or implied, is made or intended by the Consultant's performance of
services, and it is agreed that the Consultant is not a fiduciary with respect to the Client.
(9) LIMITATION OF LIABILITY. In recognition of the relative risks and benefits of the Project to the Client and
the Consultant, the risks are allocated such that, to the fullest extent allowed by law, and notwithstanding any other
provisions of this Agreement or the existence of applicable insurance coverage, that the total liability, in the
aggregate, of the Consultant and the Consultant's officers, directors, employees, agents, and subconsultants to
the Client or to anyone claiming by, through or under the Client, for any and all claims, losses, costs or damages
whatsoever arising out of or in any way related to the services under this Agreement from any causes, including
but not limited to, the negligence, professional errors or omissions, strict liability or breach of contract or any
warranty, express or implied, of the Consultant or the Consultant's officers, directors, employees, agents, and
subconsultants, shall not exceed twice the total compensation received by the Consultant under this Agreement
or $50,000, whichever is greater. Higher limits of liability may be negotiated for additional fee. This Section 9 is
intended solely to limit the remedies available to the Client or those claiming by or through the Client, and nothing
in this Section 9 shall require the Client to indemnify the Consultant.
(10) Mutual Waiver of Consequential Damages. In no event shall either party be liable to the other for any
consequential, incidental, punitive, or indirect damages including but not limited to loss of income or loss of profits.
(11) Construction Costs. Under no circumstances shall the Consultant be liable for extra costs or other
consequences due to unknown conditions or related to the failure of contractors to perform work in accordance
with the plans and specifications. Consultant shall have no liability whatsoever for any costs arising out of the
Client’s decision to obtain bids or proceed with construction before the Consultant has issued final, fully-approved
plans and specifications. The Client acknowledges that all preliminary plans are subject to substantial revision
until plans are fully approved and all permits obtained.
(12) Certifications. All requests for the Consultant to execute certificates, lender consents, or other third-party
reliance letters must be submitted to the Consultant at least 14 days prior to the requested date of execution. The
Consultant shall not be required to execute certificates, consents, or third-party reliance letters that are inaccurate,
that relate to facts of which the Consultant does not have actual knowledge, or that would cause the Consultant to
violate applicable rules of professional responsibility.
(13) Dispute Resolution. All claims by the Client arising out of this Agreement or its breach shall be submitted
first to mediation in accordance with the American Arbitration Association as a condition precedent to litigation.
Any mediation or civil action by Client must be commenced within one year of the accrual of the cause of action
asserted but in no event later than allowed by applicable statutes.
(14) Hazardous Substances and Conditions. Consultant shall not be a custodian, transporter, handler,
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arranger, contractor, or remediator with respect to hazardous substances and conditions. Consultant's services
will be limited to analysis, recommendations, and reporting, including, when agreed to, plans and specifications for
isolation, removal, or remediation. The Consultant will notify the Client of unanticipated hazardous substances or
conditions of which the Consultant actually becomes aware. The Consultant may stop affected portions of its
services until the hazardous substance or condition is eliminated.
(15) Construction Phase Services.
(a) If the Consultant prepares construction documents and the Consultant is not retained to make periodic site
visits, the Client assumes all responsibility for interpretation of the documents and for construction observation,
and the Client waives any claims against the Consultant in any way connected thereto.
(b) The Consultant shall have no responsibility for any contractor's means, methods, techniques, equipment choice
and usage, sequence, schedule, safety programs, or safety practices, nor shall Consultant have any authority or
responsibility to stop or direct the work of any contractor. The Consultant's visits will be for the purpose of
endeavoring to provide the Client a greater degree of confidence that the completed work of its contractors will
generally conform to the construction documents prepared by the Consultant. Consultant neither guarantees the
performance of contractors, nor assumes responsibility for any contractor’s failure to perform its work in
accordance with the contract documents.
(c) The Consultant is not responsible for any duties assigned to it in the construction contract that are not expressly
provided for in this Agreement. The Client agrees that each contract with any contractor shall state that the
contractor shall be solely responsible for job site safety and its means and methods; that the contractor shall
indemnify the Client and the Consultant for all claims and liability arising out of job site accidents; and that the
Client and the Consultant shall be made additional insureds under the contractor’s general liability insurance policy.
(16) No Third-Party Beneficiaries; Assignment and Subcontracting. This Agreement gives no rights or
benefits to anyone other than the Client and the Consultant, and all duties and responsibilities undertaken pursuant
to this Agreement will be for the sole benefit of the Client and the Consultant. The Client shall not assign or transfer
any rights under or interest in this Agreement, or any claim arising out of the performance of services by Consultant,
without the written consent of the Consultant. The Consultant reserves the right to augment its staff with
subconsultants as it deems appropriate due to project logistics, schedules, or market conditions. If the Consultant
exercises this right, the Consultant will maintain the agreed-upon billing rates for services identified in the contract,
regardless of whether the services are provided by in-house employees, contract employees, or independent
subconsultants.
(17) Confidentiality. The Client consents to the use and dissemination by the Consultant of photographs of the
project and to the use by the Consultant of facts, data and information obtained by the Consultant in the
performance of its services. If, however, any facts, data or information are specifically identified in writing by the
Client as confidential, the Consultant shall use reasonable care to maintain the confidentiality of that material.
(18) Miscellaneous Provisions. This Agreement is to be governed by the law of the State where the Project is
located. This Agreement contains the entire and fully integrated agreement between the parties and supersedes
all prior and contemporaneous negotiations, representations, agreements or understandings, whether written or
oral. Except as provided in Section 1, this Agreement can be supplemented or amended only by a written
document executed by both parties. Any conflicting or additional terms on any purchase order issued by the Client
shall be void and are hereby expressly rejected by the Consultant. Any provision in this Agreement that is
unenforceable shall be ineffective to the extent of such unenforceability without invalidating the remaining
provisions. The non-enforcement of any provision by either party shall not constitute a waiver of that provision nor
shall it affect the enforceability of that provision or of the remainder of this Agreement.