MR Tanner - JOC Terms

PW23-RFQ-JOCO]

JOB ORDER CONTRACT FOR ASPHALT, CONCRETE, AND
GRADING PROJECTS

City of El Mirage
10000 N El Mirage Rd
El Mirage, AZ 85335

City of
~# EL MIRAGE

Arizona

GRAND HERITAGE, BRIGHT FUTURE!

Request For Proposal #PW23-RFQ-JOCO1
Title: Job Order Contract for Asphalt, Concrete, and Grading Projects

City of El Mirage
REQUEST FOR PROPOSAL
Job Order Contract for Asphalt, Concrete, and Grading Projects

I: PROFESSIONAL SERVICES CONTRACT...
Il. AGREEMENT

Request For Proposal #PW23-RFQ-JOCO1
Title: Job Order Contract for Asphalt, Concrete, and Grading Projects

1. PROFESSIONAL SERVICES CONTRACT

CITY OF EL MIRAGE
THIS PROFESSIONAL SERVICES CONTRACT, is made and entered into this day of
, 20. , by and between the City of El Mirage, an Arizona municipal corporation

(“City”), and M. R. Tanner Development & Construction, LLC a(n)TBD(“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 Job Order Contract for Asphalt, Concrete, and
Grading Projects (“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.

Request For Proposal #PW23-RFQ-JOCOL
Title: Job Order Contract for Asphalt, Concrete, and Grading Projects

2. AGREEMENT

NOW, THEREFORE, in consideration of the mutual promises and obligations set for herein, the parties
hereto agree as follows:

2.1. 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 Cason
Chambers, (Title) Operations Superintendent, 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.

2.2. 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.

2.3. 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.

2.4. 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 TBD.

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

4

Request For Proposal #PW23-RFQ-JOCO1
Title: Job Order Contract for Asphalt, Concrete, and Grading Projects

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.

2.5. 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.

2.6. 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.

2.7, TERM AND EXTENSION

e 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 and continues
for TBD to TBD, with an option to extend for an additional TBD.

Request For Proposal #PW23-RFQ-JOCO1
Title: Job Order Contract for Asphalt, Concrete, and Grading Projects

2.8. TERMINATION

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 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.

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.

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

Request For Proposal #PW23-RFQ-JOCO1
Title: Job Order Contract for Asphalt, Concrete, and Grading Projects

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.

2.9. 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.

2.10. 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.

2.11. 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.

2.12. 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.

13. 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.

2.14. 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.

Request For Proposal #PW23-RFQ-JOCO1
Title: Job Order Contract for Asphalt, Concrete, and Grading Projects

2.15. 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.

2.16. INDEPENDENT CONTRACTOR

The Services Consultant provides under the terms of this Contract to the City are that of an Independent
Contractor, not an employee or agent of the City. The City will report the value paid for these Services
each year to the Internal Revenue Service (I.R.S.) using Form 1099.

City shall not withhold income tax as a deduction from contractual payments. As a result of this,
Consultant may be subject to |.R.S. provisions for payment of estimated income tax. Consultant is
responsible for consulting the local |.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.

2.17. 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).

2.18. 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: M. R. Tanner Development & Construction, LLC
Attn: TBD

TBD

In the case of City City of El Mirage
Attn: City Manager
10000 North El Mirage Road

Request For Proposal #PW23-RFQ-JOCO1
Title: Job Order Contract for Asphalt, Concrete, and Grading Projects

El Mirage, Arizona 85335

With a copy to: City of El Mirage
City Attorney

10000 North El Mirage Road

El Mirage, Arizona 85335

Notices shall be deemed received on date delivered, if delivered by hand, and on the delivery date
indicated on receipt if delivered by certified or registered mail.

2.19, 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.

2.20. 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.

2.21. 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.

2.22. 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.

2.23, 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.

2.24. 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.

Request For Proposal #PW23-RFQ-JOCO1
Title: Job Order Contract for Asphalt, Concrete, and Grading Projects

In the event of subcontracting, the sole responsibility for fulfillment of all terms and conditions of this
Contract rests with the Consultant.

2.25. 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.

2.26, 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.

10

Request For Proposal #PW23-RFQ-JOCO1
Title: Job Order Contract for Asphalt, Concrete, and Grading Projects

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.

2.27. 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.

2.28. 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:

ra CA VU StL Lucha

Cscerystal Dyches, City Mana,

din REF Ce, Gy Attorney

id