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Contract No. EM23-TS01
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CITY OF EL MIRAGE
PROFESSIONAL SERVICES CONTRACT
THIS PROFESSIONAL SERVICES CONTRACT, is made and entered into this 7th day of March,
2023, by and between the City of El Mirage, an Arizona municipal corporation (“City”), and Lee
Engineering, LLC 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 to prepare
a Traffic Signal Needs Study for the Thunderbird Road & Luna Street intersection (“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, Development Services 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. EM23-TS01
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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 Nine Thousand One Hundred Dollars
($9,100.00).
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. EM23-TS01
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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 June 30, 2023.
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. EM23-TS01
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If the Consultant materially fails to fulfill in a timely and proper manner its obligations
under this Contract, or 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. EM23-TS01
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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. EM23-TS01
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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:
Lee Engineering, LLC
Attn: Randy Dittberner, P.E., PTOE
3610 North 44th Street, Suite 100
Phoenix, Arizona 85018
In the case of City
City of El Mirage
Attn: City Manager
10000 North El Mirage Road
El Mirage, Arizona 85335
With a copy to:
City of El Mirage
Attn: City Attorney
10000 North El Mirage Road
El Mirage, Arizona 85335
Notices shall be deemed received on date delivered, if delivered by hand, and on the delivery date
indicated on receipt if delivered by certified or registered mail.
4.11
FORCE MAJEURE
Neither party shall be responsible for delays or failures in performance resulting from acts beyond
their control. Such acts shall include, but not be limited to, acts of God, riots, acts of war, epidemics,
governmental regulations imposed after the fact, fire, communication line failures, power failures,
or earthquakes.
Contract No. EM23-TS01
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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. EM23-TS01
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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.
Consultant shall also submit to the City a copy of Consultant’s insurance policy endorsements
indicating that the City is an additional insured under Consultant’s insurance policies as required
herein.
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.
Contract No. EM23-TS01
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4.20
BOYCOTT OF ISRAEL
Consultant certifies that it is not currently engaged in and agrees for the duration of this Agreement
that it will not engage in a boycott of Israel as set forth in ARIZ. REV. STAT. § 35-393 and § 35-
393.01
4.21
SEVERABILITY
If any term or provision of this Contract shall be found to be illegal or unenforceable, then
notwithstanding such illegality or unenforceability, this Contract shall remain in full force and
effect and such term or provision shall be deemed to be deleted.
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
Randy Dittberner
Senior Project Manager
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EXHIBIT “A”
ARIZONA
TEXAS
NEW MEXICO
OKLAHOMA
3610 N 44th Street, Suite 100, Phoenix, AZ 85018
(602) 955-7206 | www.leeengineering.com
January 17, 2023
Tessa Wessel, EIT
Civil Engineer
City of El Mirage
10000 N. El Mirage Rd.
El Mirage, AZ 85335
Re: Proposal for Traffic Signal Needs Study – Thunderbird Road & Luna Street
Dear Ms. Wessel:
Lee Engineering is pleased to submit this proposal to perform a traffic signal needs study at the above-
referenced intersection. This study will consist of the following tasks:
•
Traffic Data Collection. Lee Engineering will engage a subconsultant, Field Data Services (FDS), to
conduct a turning-movement count for a 24-hour period on a typical midweek day. Data will be
collected in 15-minute intervals and vehicles will be counted by direction and turning movement. The
count will also include pedestrians and bicyclists crossing all legs of the intersection. Considering
that Luna Street is offset at the intersection with Thunderbird Road, we have reviewed the
intersection with FDS to ensure that our data collection plan can accurately account for all
movements at the intersection.
•
Crash Review. We will review tabular crash data provided by the Arizona Department of
Transportation (ADOT) from 2017 through 2021, the most recent 5-year period for which ADOT
crash data is available. In particular, we will determine the number of crashes expected to be
preventable by signalizing the intersection.
•
Field Review. Lee Engineering will visit the subject intersection on a typical midweek day to observe
typical traffic patterns, traffic control devices, and other field characteristics.
•
Traffic Control Evaluation. Lee Engineering will use the traffic volume, crash data, and field review
observations to evaluate the intersection according to the signal warrants in the 2009 (most recent)
edition of the Manual on Uniform Traffic Control Devices (MUTCD), Part 4. The warrants include both
vehicular and pedestrian volume components. We will also consider the alternative Crash
Experience Warrant authorized by the Federal Highway Administration in its Interim Approval 19,
dated February 24, 2017. In addition to evaluating the MUTCD signal warrants, Lee Engineering will
use our expertise to consider whether a traffic signal is the most appropriate control at the subject
intersection, considering that an agency is not required to install a signal merely because an
intersection satisfies one or more signal warrants. The evaluation will consider the effects of changing
the intersection’s existing traffic control from a pedestrian hybrid beacon (PHB), and it will consider
the proximity of the intersection to adjacent traffic signals along Thunderbird Road (at the Grand
Avenue Frontage Road to the east and El Mirage Road to the west).
•
Report. We will prepare a letter report to you outlining the results of our evaluation that includes
the data collected along with the results of each traffic signal warrant. The letter report will also
include our recommended traffic control. Furthermore, we will suggest recommended changes to
traffic control devices or other traffic engineering components at the intersection identified during
our analysis and field review.
Page 2 of 2
A complete draft letter report will be prepared and ready for your review within 30 working days after
collection of traffic data. Any comments on the draft memorandum will be incorporated into the document
and the final signed and sealed letter report delivered to you in electronic format.
The cost to conduct this work will be a lump sum fee of $9,100.
If you have questions or comments concerning this proposal, please contact me at rdittberner@lee-eng.com
or 602-443-8479. We appreciate the opportunity to submit this proposal and look forward to working with
you on this study. We are available to begin work immediately upon receipt of Notice to Proceed.
Sincerely,
Randy Dittberner, P.E., PTOE
Senior Project Manager