Agreement - Kimley-Horn

, ® CHANDLER
et arizona

Community of Innovation

PROFESSIONAL SERVICES AGREEMENT
Post-Design Services
CHANDLER HEIGHTS ROAD IMPROVEMENTS (MCQUEEN ROAD TO GILBERT ROAD)

Project No. S11614.271
Council Date: March 24, 2022 Item No.

THIS AGREEMENT (“Agreement”) is made and entered into on the day of. ,
2022 (‘Effective Date’), by and between City of Chandler, an Arizona municipal corporation,
("City"), and Kimley-Horn and Associates, Inc., a North Carolina corporation, ("Consultant")
(City and Consultant may individually be referred to as “Party” and collectively referred to as
“Parties”).

RECITALS

A. City proposes to engage Consultant to provide Post-Design Services for CHANDLER HEIGHTS
ROAD IMPROVEMENTS (MCQUEEN ROAD TO GILBERT ROAD) project as more fully described
in Exhibit "A", which is attached to and made a part of this Agreement by this reference.

B. Consultant is ready, willing, and able to provide the services described in Exhibit “A” for
the compensation and fees set forth and as described in Exhibit "B”, which is attached to
and made a part of this Agreement by this reference.

C. City desires to contract with Consultant to provide these services under the terms and
conditions set forth in this Agreement.

AGREEMENT

NOW, THEREFORE, in consideration of the premises and the mutual promises contained in this
Agreement, City and Consultant agree as follows:

SECTION I--CONSULTANT'S SERVICES

Consultant must perform the services described in Exhibit “A” to City’s satisfaction within the
terms and conditions of this Agreement and within the care and skill that a person who
provides similar services in Chandler, Arizona exercises under similar conditions. All work or
services furnished by Consultant under this Agreement must be performed in a skilled and
workmanlike manner. All fixtures, furnishings, and equipment furnished by Consultant as
part of the work or services under this Agreement must be new, or the latest model, and of
the most suitable grade and quality for the intended purpose of the work or service.

City of Chandler Professional Services Agreement Page 1
Public Works & Utilities Department, Capital Projects Division

Project Name: CHANDLER HEIGHTS ROAD IMPROVEMENTS (MCQUEEN ROAD TO GILBERT ROAD)

Project No.: ST1614.271

Rev. 10/28/2021

SECTION II--PERIOD OF SERVICE

Consultant must perform the services described in Exhibit “A” for the term of this
Agreement. Unless amended in writing by the Parties, the Agreement term expires 600
calendar days after the Notice to Proceed (NTP) Date.

SECTION IIl--PAYMENT OF COMPENSATION AND FEES

Unless amended in writing by the Parties, Consultant's compensation and fees as more fully
described in Exhibit “B” for performance of the services approved and accepted by City
under this Agreement must not exceed $92,340 for the full term of the Agreement. Consultant
may not increase any compensation or fees under this Agreement without the City’s prior
written consent. Consultant must submit monthly requests for payment of services approved
and accepted during the previous billing period and must include, as applicable, detailed
invoices and receipts, a narrative description of the tasks accomplished during the billing
period, a list of any deliverables submitted, and any subconsultant’s or supplier's actual
requests for payment plus similar narrative and listing of their work. Consultant must submit
an Application and Certification for Payment Sheet with the monthly request for payment to:
CapitalProjects.Payables@chandleraz.gov. Payment for those services negotiated as a lump
sum will be made in accordance with the percentage of the work completed during the
preceding billing period. Services negotiated as a not-to-exceed fee will be paid in accordance
with the work effort expended on the service during the preceding month. All requests for
payment must be submitted to City for review and approval. City will make payment for
approved and accepted services within 30 calendar days of City’s receipt of the request for
payment. Consultant bears all responsibility and liability for any and all tax obligations that
result from Consultant's performance under this Agreement.

SECTION IV--CITY'S OBLIGATIONS

As part of Consultant’s services under this Agreement, City will provide furnished items,
services, or obligations as detailed in Exhibit “D”.

SECTION V--GENERAL CONDITIONS

5.1 Notices. Unless otherwise provided herein, demands under this Agreement must be in
writing and will be deemed to have been duly given and received either (a) on the date of
service if personally served on the party to whom notice is to be given, or (b) on the third day
after the date of the postmark of deposit by first class United States mail, registered or
certified, postage prepaid and properly addressed as follows:

City of Chandler Professional Services Agreement Page 2
Public Works & Utilities Department, Capital Projects Division

Project Name: CHANDLER HEIGHTS ROAD IMPROVEMENTS (MCQUEEN ROAD TO GILBERT ROAD)

Project No.: ST1614.271

Rev. 10/28/2021

To City: City of Chandler

Public Works & Utilities Department
Attn: CIP City Engineer

P.O. Box 4008, Mail Stop 407
Chandler, AZ 85244-4008

Phone: 480-782-3343

Email: andrew.goh@chandleraz.gov

With a Copyto: | City of Chandler

Public Works & Utilities Department
Attn: Project Manager

P.O. Box 4008, Mail Stop 407,
Chandler, AZ 85244-4008

To Consultant: Kimley-Horn and Associates, Inc.

Mailing Address: 421 Fayetteville St Ste 600 Raleigh NC 27601

Statutory Agent Name: CT Corporation System

Statutory Agent Mailing Address: 3800 N Central Ave Ste 460 Phoenix AZ|
85012

CONSULTANT'S AUTHORIZED PROJECT REPRESENTATIVE

Name: Chris Woolery

Title: Senior Associate

Phone: 602-216-1224

Email: chris.woolery@kimley-horn.com

5.2 Records/Audit. Records of Consultant's direct personnel payroll, reimbursable expenses
pertaining to this Agreement and records of accounts between City and Consultant must be
kept on the basis of generally accepted accounting principles and must be made available to
City and its auditors for up to three years following City's final acceptance of the services
under this Agreement (this requirement is increased to five years if construction of this
project is federally funded). City, its authorized representative, or any federal agency,
reserves the right to audit Consultant's records to verify the accuracy and appropriateness of
all cost and pricing data, including data used to negotiate this Agreement and any
amendments. City reserves the right to decrease the total amount of Agreement price or
payments made under this Agreement or request reimbursement from Consultant following
final contract payment on this Agreement if, upon audit of Consultant's records, the audit
discloses Consultant has provided false, misleading, or inaccurate cost and pricing data.
Consultant will include a similar provision in all of its contracts with subconsultants who
provide services under the Agreement to ensure that City, its authorized representative, or
the appropriate federal agency, has access to the subconsultants’ records to verify the
accuracy of all cost and pricing data. City reserves the right to decrease Contract price or
payments made on this Agreement or request reimbursement from Consultant following
final payment on this Agreement if the above provision is not included in subconsultant
agreements, and one or more subconsultants refuse to allow City to audit their records to
verify the accuracy and appropriateness of all cost and pricing data. If, following an audit of
this Agreement, the audit discloses Consultant has provided false, misleading, or inaccurate

City of Chandler Professional Services Agreement Page 3
Public Works & Utilities Department, Capital Projects Division

Project Name: CHANDLER HEIGHTS ROAD IMPROVEMENTS (MCQUEEN ROAD TO GILBERT ROAD)

Project No.: ST1614.271

Rev. 10/28/2021

cost and pricing data, and the cost discrepancies exceed 1% of the total Agreement billings,
Consultant will be liable for reimbursement of the reasonable, actual cost of the audit.

5.3 Alteration in Character of Work. Whenever an alteration in the character of work results
in a substantial change in this Agreement, thereby materially increasing or decreasing the
scope of services, cost of performance, or Project schedule, the work will be performed as
directed by City. However, before any modified work is started, a written amendment must
be approved and executed by City and Consultant. Such amendment must not be effective
until approved by City. Additions to, modifications, or deletions from this Agreement as
provided herein may be made, and the compensation to be paid to Consultant may
accordingly be adjusted by mutual agreement of the Parties. It is distinctly understood and
agreed that no claim for extra services or materials furnished by Consultant will be allowed
by City except as provided herein, nor must Consultant do any work or furnish any materials
not covered by this Agreement unless such work is first authorized in writing. Any such work
or materials furnished by Consultant without prior written authorization will be at
Consultant’s own risk, cost, and expense, and Consultant hereby agrees that without written
authorization Consultant will make no claim for compensation for such work or materials
furnished.

5.4 Termination. City and Consultant hereby agree to the full performance of the covenants
contained herein, except that City reserves the right, at its discretion and without cause, to
terminate or abandon any service provided for in this Agreement, or abandon any portion of
the Project for which services have been performed by Consultant. In the event City abandons
or suspends the services, or any part of the services as provided in this Agreement, City will
notify Consultant in writing and immediately after receiving such notice, Consultant must
discontinue advancing the work specified under this Agreement. Upon such termination,
abandonment, or suspension, Consultant must deliver to City all drawings, plans,
specifications, special provisions, estimates and other work entirely or partially completed,
together with all unused materials supplied by City. Consultant must appraise the work
Consultant has completed and submit Consultant's appraisal to City for evaluation. City may
inspect Consultant's work to appraise the work completed. Consultant will receive
compensation in full for services performed to the date of such termination. The fee will be
paid in accordance with Section Ill of this Agreement, and as mutually agreed upon by
Consultant and City. If there is no mutual agreement on payment, the final determination will
be made in accordance with the "Disputes" provision in this Agreement. However, in no event
may the fee exceed the fee set forth in Section Ill of this Agreement nor as amended in
accordance with Section "Alteration in Character of Work." City will make the final payment
within 60 days after Consultant has delivered the last of the partially completed items and
the Parties agree on the final fee. If City is found to have improperly terminated the
Agreement for cause or default, the termination will be converted to a termination for
convenience in accordance with the provisions of this Agreement.

5.5 Indemnification. To the extent permitted by law, the Consultant ("Indemnitor") must
indemnify, save and hold harmless City and its officers, officials, agents and employees
("Indemnitee") from any and all claims, actions, liabilities, damages, losses or expenses
(including court costs, attorneys' fees and costs of claim processing, investigation and
litigation) ("Claims") caused or alleged to be caused, in whole or in part, by the wrongful,

City of Chandler Professional Services Agreement Page 4
Public Works & Utilities Department, Capital Projects Division

Project Name: CHANDLER HEIGHTS ROAD IMPROVEMENTS (MCQUEEN ROAD TO GILBERT ROAD)

Project No.: ST1614.271

Rev. 10/28/2021

negligent or willful acts, or errors or omissions of Consultant or any of its owners, officers,
directors, agents, employees, or subconsultants in connection with this Agreement. This
indemnity includes any claim or amount arising out of or recovered under workers'
compensation law or on account of the failure of Consultant to conform to any federal, state
or local law, statute, ordinance, rule, regulation or court decree. Consultant must indemnify
Indemnitee from and against any and all Claims, except those arising solely from
Indemnitee's own negligent or willful acts or omissions. Consultant is responsible for primary
loss investigation, defense and judgment costs where this indemnification applies. In
consideration of the award of this Agreement, Consultant agrees to waive all rights of
subrogation against Indemnitee for losses arising from or related to this Agreement. The
obligations of Consultant under this provision survive the termination or expiration of this
Agreement.

5.6 Insurance Requirements. Consultant must procure insurance under the terms and
conditions and for the amounts of coverage set forth in Exhibit “C” against claims that may
arise from or relate to performance of the work under this Agreement by Consultant and its
agents, representatives, employees, and subconsultants. Consultant and any subconsultant
must maintain this insurance until all of their obligations have been discharged, including any
warranty periods under this Agreement. These insurance requirements are minimum
requirements for this Agreement and in no way limit the indemnity covenants contained in
this Agreement. City in no way warrants that the minimum limits stated in Exhibit “C” are
sufficient to protect Consultant from liabilities that might arise out of the performance of the
work under this Agreement by Consultant, Consultant's agents, representatives, employees,
or subconsultants. Consultant is free to purchase such additional insurance as may be
determined necessary.

5.7 Cooperation and Further Documentation. Consultant agrees to provide City such other
duly executed documents as may be reasonably requested by City to implement the intent
of this Agreement.

5.8 Successors and Assigns. City and Consultant each bind itself, its partners, successors,
assigns, and legal representatives to the other party to this Agreement and to the partners,
successors, assigns, and legal representatives of such other party in respect to all covenants
of this Agreement. Neither City nor Consultant may assign, sublet, or transfer its interest in
this Agreement without the written consent of the other party. In no event may any
contractual relation be created between any third party and City.

5.9 Disputes. In any dispute arising out of an interpretation of this Agreement or the duties
required not disposed of by agreement between Consultant and City, the final determination
at the administrative level will be made by City Engineer.

5.10 Completeness and Accuracy of Consultant's Work. Consultant must be responsible for
the completeness and accuracy of Consultant's services, data, and other work prepared or
compiled under Consultant's obligation under this Agreement and must correct, at
Consultant's expense, all willful or negligent errors, omissions, or acts that may be discovered.
Correction of errors disclosed and determined to exist during any construction of the project on
architectural or engineering drawings and specifications must be accomplished by Consultant.

City of Chandler Professional Services Agreement Page 5
Public Works & Utilities Department, Capital Projects Division

Project Name: CHANDLER HEIGHTS ROAD IMPROVEMENTS (MCQUEEN ROAD TO GILBERT ROAD)

Project No.: ST1614.271

Rev. 10/28/2021

The cost of the design necessary to correct those errors attributable to Consultant and any
damage incurred by City as a result of additional construction costs caused by such engineering
or architectural errors will be chargeable to Consultant and will not be considered a cost of the
Work. The fact that City has accepted or approved Consultant's work will in no way relieve
Consultant of any of Consultant's responsibilities.

5.11 Reporting. Written monthly reports, along with updated work schedules, will be made by
Consultant in the format prescribed by City. These reports will be delivered to City per schedule.
When requested by City, Consultant will attend Council meetings and provide finished documents
including correspondence for Council action, supporting charts, graphs, drawings and colored
slides of same.

5.12 Withholding Payment. City reserves the right to withhold funds from Consultant's
payments up to the amount equal to the claims City may have against Consultant until such
time that a settlement on those claims has been reached.

5.13 City's Right of Cancellation. The Parties acknowledge that this Agreement is subject to
cancellation by City under the provisions of Section 38-511, Arizona Revised Statutes (A.R.S.).

5.14 Independent Consultant. For this Agreement Consultant constitutes an independent
contractor. Any provisions in this Agreement that may appear to give City the right to direct
Consultant as to the details of accomplishing the work or to exercise a measure of control
over the work means that Consultant must follow the wishes of City as to the results of the
work only. These results must comply with all applicable laws and ordinances.

5.15 Project Staffing. Prior to the start of any work under this Agreement, Consultant must
submit to City detailed resumes of key personnel that will be involved in performing services
prescribed in the Agreement. City hereby acknowledges its acceptance of such personnel to
perform services under this Agreement. At any time hereafter that Consultant desires to
change key personnel while performing under the Agreement, Consultant must submit the
qualifications of the new personnel to City for prior approval. Key personnel include, but are
not limited to, principals-in-charge, project manager, and project Consultant. Consultant will
maintain an adequate and competent staff of qualified persons, as may be determined by
City, throughout the performance of this Agreement to ensure acceptable and timely
completion of the Scope of Services. If City objects, with reasonable cause, to any of
Consultant's staff, Consultant must take prompt corrective action acceptable to City and, if
required, remove such personnel from the Project and replace with new personnel agreed to
by City.

5.16 Consultants or Subconsultants. Prior to beginning the work, Consultant must furnish City
for approval the names of consultants or subconsultants to be used under this Agreement.
Any subsequent changes are subject to City’s written prior approval.

5.17 Force Majeure. If either party is delayed or prevented from the performance of any act
required under this Agreement by reason of acts of God or other cause beyond the control
and without fault of the Party (financial inability excepted), performance of that act may be
excused, but only for the period of the delay, if the Party provides written notice to the other

City of Chandler Professional Services Agreement Page 6
Public Works & Utilities Department, Capital Projects Division

Project Name: CHANDLER HEIGHTS ROAD IMPROVEMENTS (MCQUEEN ROAD TO GILBERT ROAD)

Project No.: ST1614.271

Rev. 10/28/2021

Party within ten days of such act. The time for performance of the act may be extended for a
period equivalent to the period of delay from the date written notice is received by the other
Party.

5.18 Compliance with Federal Laws. Consultant understands and acknowledges the
applicability of the Americans with Disabilities Act, the Immigration Reform and Control Act
of 1986 and the Drug Free Workplace Act of 1989 to it. Consultant agrees to comply with these
laws in performing this Agreement and to permit City to verify such compliance.

5.19 No Israel Boycott. By entering into this Agreement, Consultant certifies that Consultant
is not currently engaged in, and agrees for the duration of the Agreement, not to engage ina
boycott of Israel as defined by state statute.

5.20 Legal Worker Requirements. A.R.S. 8 41-4401 prohibits City from awarding a contract to
any consultant who fails, or whose subconsultants fail, to comply with A.R.S. 8 23-214(A).
Therefore, Consultant agrees Consultant and each subconsultant it uses warrants their
compliance with all federal immigration laws and regulations that relate to their employees
and their compliance with 8 23-214, subsection A. A breach of this warranty will be deemed a
material breach of the Agreement and may be subject to penalties up to and including
termination of the Agreement. City retains the legal right to inspect the papers of any
Consultant's or subconsultant’s employee who provides services under this Agreement to
ensure that Consultant and subconsultants comply with the warranty under this provision.

5.21 Lawful Presence Requirement. A.R.S. 88 1-501 and 1-502 prohibit City from awarding a
contract to any natural person who cannot establish that such person is lawfully present in
the United States. To establish lawful presence, a person must produce qualifying
identification and sign a City-provided affidavit affirming that the identification provided is
genuine. This requirement will be imposed at the time of contract award. This requirement
does not apply to business organizations such as corporations, partnerships, or limited
liability companies.

5.22 Covenant Against Contingent Fees. Consultant warrants that no person has been
employed or retained to solicit or secure this Agreement upon an agreement or
understanding for a commission, percentage, brokerage, or contingent fee, and that no
member of the Chandler City Council, or any City employee has any interest, financially, or
otherwise, in Consultant's firm. For breach or violation of this warrant, City may annul this
Agreement without liability or, at its discretion, to deduct from the Agreement price or
consideration, the full amount of such commission, percentage, brokerage, or contingent fee.

5.23 Non-Waiver Provision. The failure of either Party to enforce any of the provisions of this
Agreement or to require performance of the other Party of any of the provisions hereof must
not be construed to be a waiver of such provisions, nor must it affect the validity of this
Agreement or any part thereof, or the right of either Party to thereafter enforce each and
every provision.

5.24 Disclosure of Information Adverse to City's Interests. To evaluate and avoid potential
conflicts of interest, Consultant must provide written notice to City, as set forth in this Section,

City of Chandler Professional Services Agreement Page 7
Public Works & Utilities Department, Capital Projects Division

Project Name: CHANDLER HEIGHTS ROAD IMPROVEMENTS (MCQUEEN ROAD TO GILBERT ROAD)

Project No.: ST1614.271

Rev. 10/28/2021

of any work or services performed by Consultant for third parties that may involve or be
associated with any real property or personal property owned or leased by City. Such notice
must be given 7 business days prior to commencement of the services by Consultant for a
third party, or 7 business days prior to an adverse action as defined below. Written notice
and disclosure must be sent in accordance with Section 6.7 above. An adverse action under
this Agreement includes, but is not limited to: (a) using data as defined in the Agreement
acquired in connection with this Agreement to assist a third party in pursuing administrative
or judicial action against City; or (b) testifying or providing evidence on behalf of any person
in connection with an administrative or judicial action against City; or (c) using data to produce
income for Consultant or its employees independently of performing the services under this
Agreement, without the prior written consent of City. Consultant represents that except for
those persons, entities, and projects identified to City, the services performed by Consultant
under this Agreement are not expected to create an interest with any person, entity, or third
party project that is or may be adverse to City’s interests. Consultant's failure to provide a
written notice and disclosure of the information as set forth in this Section constitute a
material breach of this Agreement.

5.25 Data Confidentiality and Data Security. As used in the Agreement, "data" means all
information, whether written or verbal, including plans, photographs, studies, investigations,
audits, analyses, samples, reports, calculations, internal memos, meeting minutes, data field
notes, work product, proposals, correspondence and any other similar documents or
information prepared by, obtained by, or transmitted to Consultant or its subconsultants in
the performance of this Agreement. The Parties agree that all data, regardless of form,
including originals, images, and reproductions, prepared by, obtained by, or transmitted to
Consultant or its subconsultants in connection with Consultant's or its subconsultant’s
performance of this Agreement is confidential and proprietary information belonging to City.
Except as specifically provided in this Agreement, Consultant or its subconsultants must not
divulge data to any third party without City's prior written consent. Consultant or its
subconsultants must not use the data for any purposes except to perform the services
required under this Agreement. These prohibitions do not apply to the following data
provided to Consultant or its subconsultants have first given the required notice to City: (a)
data which was known to Consultant or its subconsultants prior to its performance under this
Consultant or its subconsultants by a third party, who to the best of Consultant's or its
subconsultants’ knowledge and belief, had the legal right to make such disclosure and
Consultant or its subconsultants are not otherwise required to hold such data in confidence;
or (c) data which is required to be disclosed by virtue of law, regulation, or court order, to
which Consultant or its subconsultants are subject. In the event Consultant or its
subconsultants are required or requested to disclose data to a third party, or any other
information to which Consultant or its subconsultants became privy as a result of any other
contract with City, Consultant must first notify City as set forth in this Section of the request
or demand for the data. Consultant or its subconsultants must give City sufficient facts so
that City can be given an opportunity to first give its consent or take such action that City may
deem appropriate to protect such data or other information from disclosure. All data must
continue to be subject to the confidentiality agreements of this Agreement. Consultant or its
subconsultants assume all liability to maintain the confidentiality of the data in its possession
and agrees to compensate City if any of the provisions of this Section are violated by
Consultant, its employees, agents or subconsultants. Solely for the purposes of seeking

City of Chandler Professional Services Agreement Page 8
Public Works & Utilities Department, Capital Projects Division

Project Name: CHANDLER HEIGHTS ROAD IMPROVEMENTS (MCQUEEN ROAD TO GILBERT ROAD)

Project No.: ST1614.271

Rev. 10/28/2021

injunctive relief, it is agreed that a breach of this Section must be deemed to cause irreparable
harm that justifies injunctive relief in court. Consultant agrees that the requirements of this
Section must be incorporated into all subagreements entered into by Consultant. A violation
of this Section may result in immediate termination of this Agreement without notice.

5.26 Personal Identifying Information-Data_ Security. Personal identifying information,
financial account information, or restricted City information, whether electronic format or
hard copy, must be secured and protected at all times by Consultant or its subconsultants. At
a minimum, Consultant or its subconsultants must encrypt or password-protect electronic
files. This includes data saved to laptop computers, computerized devices, or removable
storage devices. When personal identifying information, financial account information, or
restricted City information, regardless of its format, is no longer necessary, the information
must be redacted or destroyed through appropriate and secure methods that ensure the
information cannot be viewed, accessed, or reconstructed. In the event that data collected or
obtained by Consultant or its subconsultants in connection with this Agreement is believed
to have been compromised, Consultant or its subconsultants must immediately notify City
contact. Consultant agrees to reimburse City for any costs incurred by City to investigate
potential breaches of this data and, where applicable, the cost of notifying individuals who
may be impacted by the breach. Consultant agrees that the requirements of this Section must
be incorporated into all subcontracts entered into by Consultant. It is further agreed that a
violation of this Section must be deemed to cause irreparable harm that justifies injunctive
relief in court. A violation of this Section may result in immediate termination of this
Agreement without notice. The obligations of Consultant or its subconsultants under this
Section must survive the termination of this Agreement.

5.27 Jurisdiction and Venue. This Agreement is made under, and must be construed in
accordance with and governed by the laws of the State of Arizona without regard to the
conflicts or choice of law provisions thereof. Any action to enforce any provision of this
Agreement or to obtain any remedy with respect hereto must be brought in the courts
located in Maricopa County, Arizona, and for this purpose, each Party hereby expressly and
irrevocably consents to the jurisdiction and venue of such court.

5.28 Survival. All warranties, representations, and indemnifications by Consultant must
survive the completion or termination of this Agreement.

5.29 Modification. Except as expressly provided herein to the contrary, no supplement,
modification, or amendment of any term of this Agreement will be deemed binding or
effective unless in writing and signed by the Parties.

5.30 Severability. If any provision of this Agreement or the application to any person or
circumstance may be invalid, illegal or unenforceable to any extent, the remainder of this
Agreement and the application will not be affected and will be enforceable to the fullest
extent permitted by law.

5.31 Integration. This Agreement contains the full agreement of the Parties. Any prior or
contemporaneous written or oral agreement between the Parties regarding the subject
matter is merged and superseded.

City of Chandler Professional Services Agreement Page 9
Public Works & Utilities Department, Capital Projects Division

Project Name: CHANDLER HEIGHTS ROAD IMPROVEMENTS (MCQUEEN ROAD TO GILBERT ROAD)

Project No.: ST1614.271

Rev. 10/28/2021

5.32 Time is of the Essence. Time of each of the terms, covenants, and conditions of this
Agreement is hereby expressly made of the essence.

5.33 Date of Performance. If the date of performance of any obligation or the last day of any
time period provided for should fall on a Saturday, Sunday, or holiday for City, the obligation
will be due and owing, and the time period will expire, on the first day after which is not a
Saturday, Sunday or legal City holiday. Except as may otherwise be set forth in this
Agreement, any performance provided for herein will be timely made if completed no later
than 5:00 p.m. (Chandler time) on the day of performance.

5.34 Third Party Beneficiary. Nothing under this Agreement will be construed to give any
rights or benefits in the Agreement to anyone other than City and Consultant, and all duties
and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive
benefit of City and Consultant and not for the benefit of any other party.

5.35 Conflict in Language. All work performed must conform to all applicable City of Chandler
codes, ordinances, and requirements as outlined in this Agreement. If there is a conflict in
interpretation between provisions in this Agreement and those in Exhibit "A", the provisions
in this Agreement prevail.

5.36 Document/Information Release. Documents and materials released to Consultant,
which are identified by City as sensitive and confidential, are City’s property. The
document/material must be issued by and returned to City upon completion of the services
under this Agreement. Consultant secondary distribution, disclosure, copying, or duplication
in any manner is prohibited without City’s prior written approval. The document/material
must be kept secure at all times. This directive applies to all City documents, whether in
photographic, printed, or electronic data format.

5.37 Exhibits. The following exhibits are made a part of this Agreement and are incorporated
by reference:

Exhibit A - Scope of Services / Schedule

Exhibit B - Compensation and Fees

Exhibit C - Insurance Requirements

Exhibit D - Special Conditions

Exhibit E - Federal Requirements (if applicable)

5.38 Special Conditions. As part of the services Consultant provides under this Agreement,
Consultant agrees to comply with and fully perform the special terms and conditions set forth
in Exhibit “D”, which is attached to and made a part of this Agreement.

5.39 Non-Discrimination and Anti-Harassment Laws. Consultant must comply with all
applicable City, state, and federal non-discrimination and anti-harassment laws, rules, and
regulations.

5.40 Licenses and Permits. Beginning with the Effective Date and for the full term of this

City of Chandler Professional Services Agreement Page 10
Public Works & Utilities Department, Capital Projects Division

Project Name: CHANDLER HEIGHTS ROAD IMPROVEMENTS (MCQUEEN ROAD TO GILBERT ROAD)

Project No.: ST1614.271

Rev. 10/28/2021

Agreement, Consultant must maintain all applicable City, state, and federal licenses and
permits required to fully perform Consultant's services under this Agreement.

5.41 Warranties. Consultant must furnish a one-year warranty on all work and services
performed under this Agreement. Consultant must furnish, or cause to be furnished, a two-
year warranty on all fixtures, furnishings, and equipment furnished by Consultant,
subconsultants or suppliers under this Agreement. Any defects in design, workmanship, or
materials that do not comply with this Agreement must be corrected by Consultant (including,
but not limited to, all parts and labor) at Consultant's sole cost and expense. All written
warranties and redlines for as-built conditions must be delivered to City on or before City’s
final acceptance of Consultant's services under this Agreement.

5.42 Cooperative Purchasing Agreement (S.A.V.E. - Strategic Alliance for Volume
Expenditures), In addition to City of Chandler and with the approval of Consultant, this
Agreement may be extended for use by other municipalities, school districts, and government
agencies of the State. Any such usage by other entities must be in accordance with the
ordinance, charter, or procurement rules and regulations of the respective political entity.

5.43 Budget Approval into Next Fiscal Year. This Agreement will commence on the Effective
Date and continue in full force and effect until it is terminated or expires in accordance with
the provisions of this Agreement. The Parties recognize that the continuation of this
Agreement after the close of the City's fiscal year, which ends on June 30 of each year, is
subject to the City Council's approval of a budget that includes an appropriation for this item
as an expenditure. The City does not represent that this budget item will be actually adopted.
This determination is solely made by the City Council.

SIGNATURE PAGE TO FOLLOW

City of Chandler Professional Services Agreement Page 11
Public Works & Utilities Department, Capital Projects Division

Project Name: CHANDLER HEIGHTS ROAD IMPROVEMENTS (MCQUEEN ROAD TO GILBERT ROAD)

Project No.: ST1614.271

Rev. 10/28/2021

This Agreement will be in full force and effect only when it has been approved and executed
by the duly authorized City officials.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.

“CITY”
CITY OF CHANDLER

MAYOR

Recommended By:

Andrew Goh, P.E.
CIP City Engineer

APPROVED AS TO FORM:

City Attorney WW
ATTEST:

City Clerk Seal

Kimley-Horn and Associates, Inc.

Quod Kurls 02/28/2022

Signature ) Date

David J. Leistiko MIT
Print Name

Sr. Vice President
Title

dave.leistiko@kimley-horn.com
Signer Email Address

City of Chandler Professional Services Agreement
Public Works & Utilities Department, Capital Projects Division

Project Name: CHANDLER HEIGHTS ROAD IMPROVEMENTS (MCQUEEN ROAD TO GILBERT ROAD)
Project No.: ST1614.271

Rev. 10/28/2021

Page 12

EXHIBIT “A”
SCOPE OF SERVICES/SCHEDULE

City of Chandler Professional Services Agreement - Exhibit “A”

Public Works & Utilities Department, Capital Projects Division

Project Name: CHANDLER HEIGHTS ROAD IMPROVEMENTS (MCQUEEN ROAD TO GILBERT ROAD)
Project No.: ST1614.271

Rev. 10/28/2021

Page A-1

Kimley»Horn

EXHIBIT “A”

POST DESIGN
SCOPE OF SERVICES
OCTOBER 5, 2021

Project Description

Post Design services for Chandler Heights Road Improvements, McQueen Road to Gilbert Road.
Services include pre-construction assistance and Engineering or Architectural Design Services during
Construction to address issues and/or specialized technical products regarding the designer of
record; and preparation of as-built record drawings.

Project Tasks

1. PRE-CONSTRUCTION ASSISTANCE
A. Task 1.1 Preconstruction Assistance
i. Consultant must attend the pre-construction meeting (IF REQUIRED).
2. Engineering or Architectural Design Services During Construction
A. Task 2.1 Attend Construction Meetings, as needed

i. Consultant must attend construction meetings, as needed. Consultant
assumes attendance of twelve (12) weekly construction meetings.

B. Task 2.2 Respond to Requests for Information (RFI’s), as needed

i. Consultant must review, evaluate, and respond to any contractor Requests for
Information (RFI's) forwarded by the CM Firm for design review. Consultant
assumes a maximum of forty (40) RFI responses.

C. Task 2.3 Respond to Shop Drawing Submittals, as needed

i. Consultant must review, evaluate, and respond to any Contractor Shop
Drawing submittals forwarded by the CM Firm for design review. Consultant
assumes a maximum of twenty (20) reviews.

3. RECORD DRAWINGS
A. Task 3.1 Record Drawings

i. Transfer red-line comments to City’s construction plans to create record
drawings.

ii. Provide resident engineer and/or architect and/or landscape architect
stamp/certification on record drawings cover sheet. Ensure all required
signatures on the cover sheet.

iii. Provide and deliver record drawings in mylar, paper and digital pdf format to
the City as required for as-built sub mittal process at city permit counter.

Kimley»Horn

ASSUMPTIONS, CLARIFICATIONS, AND EXCLUSIONS

1. Application fees for City reviews and permits will be paid by CITY.

2. The Owner's Allowance will only be utilized with prior written approval from the City
representative.

By Contract work must be performed in accordance with Exhibit D Title VI Assurances Appendix
A and Exhibit E Title VI Assurances Appendix E.

EXHIBIT “B”
COMPENSATION AND FEES

City of Chandler Professional Services Agreement — Exhibit “B”

Public Works & Utilities Department, Capital Projects Division

Project Name: CHANDLER HEIGHTS ROAD IMPROVEMENTS (MCQUEEN ROAD TO GILBERT ROAD)
Project No.: ST1614.271

Rev. 10/28/2021

Page B-1

Kimley»Horn

EXHIBIT "B"
POST DESIGN
SCOPE OF SERVICES
FEE SCHEDULE

Task |Description I Cost |

1__|PRE-CONSTRUCTION ASSISTANCE

1.1 {Pre-Construction Assistance $ 1,960.00
SUBTOTAL TASK 1:]] $ 1,960.00

2  |CONSTRUCTION MANAGEMENT

2.1. |Weekly Construction Meetings $ 5,730.00

2.2 |Requests for Information (RFI) $ 19,800.00

2.3 |Shop Drawing Submittals $ 10,200.00

SUBTOTAL TASK 2:] $ 35,730.00

3. RECORD DRAWINGS

3.1 |Record Drawings $ 9,650.00
SUBTOTAL TASK 3:} $ 9,650.00
SSUBCONSULTANTS
$
$
$
SUBTOTAL SUBCONSULTANTS:} $ -

ALLOWANCES
Direct Expense Allowance
Owner's Allowance

$ 5,000.00
$ 40,000.00

SUBTOTAL ALLOWANCES:} $ 45,000.00
$

PROJECT TOTAL:

92,340.00

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1.1

1.2

13

1.4

1.5

1.6

2.1

EXHIBIT “C”
INSURANCE REQUIREMENTS

General.

At the same time as execution of this Agreement, Consultant must furnish City a certificate
of insurance on a standard insurance industry ACORD form. The ACORD form must be
issued by an insurance company authorized to transact business in the State of Arizona
possessing a current A.M. Best, Inc. rating of A-7, or better and legally authorized to do
business in the State of Arizona with policies and forms satisfactory to City. Provided,
however, the A.M. Best rating requirement will not be deemed to apply to required Workers’
Compensation coverage.

Consultant and any of its subconsultants must procure and maintain, until all of their
obligations have been discharged, including any warranty periods under this Agreement are
satisfied, the insurances set forth below.

The insurance requirements set forth below are minimum requirements for this Agreement
and in no way limit the indemnity covenants contained in this Agreement.

City in no way warrants that the minimum insurance limits contained in this Agreement are
sufficient to protect Consultant from liabilities that might arise out of the performance of
the Agreement services under this Agreement by Consultant, its agents, representatives,
employees, subconsultants, and Consultant is free to purchase any additional insurance as
may be determined necessary.

Failure to demand evidence of full compliance with the insurance requirements in this
Agreement or failure to identify any insurance deficiency will not relieve Consultant from,
nor will it be considered a waiver of its obligation to maintain the required insurance at all
times during the performance of this Agreement.

Use of subconsultants: If any work is subcontracted in any way, Consultant must execute a
written contract with subconsultant containing the same Indemnification Clause and
Insurance Requirements as City requires of Consultant in this Agreement. Consultant is
responsible for executing the Agreement with the subconsultant and obtaining Certificates
of Insurance and verifying the insurance requirements.

Minimum Scope and Limits of Insurance. Consultant must provide coverage with limits of
liability not less than those stated below.

Professional Liability. \f the Agreement is the subject of any professional services or work
performed by Consultant, or if Consultant engages in any professional services or work
adjunct or residual to performing the work under this Agreement, Consultant must maintain
Professional Liability insurance covering errors and omissions arising out of the work or
services performed by Consultant, or anyone employed by Consultant, or anyone whose
acts, mistakes, errors and omissions Consultant is legally liable, with a liability limit of
$1,000,000 each claim and $2,000,000 all claims. In the event the Professional Liability

City of Chandler Professional Services Agreement - Exhibit “C” Page C-1
Public Works & Utilities Department, Capital Projects Division

Project Name: CHANDLER HEIGHTS ROAD IMPROVEMENTS (MCQUEEN ROAD TO GILBERT ROAD)

Project No.: ST1614.271

Rev 10/28/2021

2.2

2.3

24

3.1

insurance policy is written on a “claims made” basis, coverage must extend for 3 years past
completion and acceptance of the work or services, and Consultant, or its selected Design
Professional will submit Certificates of Insurance as evidence the required coverage is in
effect. The Design Professional must annually submit Certificates of Insurance citing that the
applicable coverage is in force and contains the required provisions for a 3 year period.

Commercial General Liability-Occurrence Form. Consultant must maintain “occurrence” form
Commercial General Liability insurance with a limit of not less than $2,000,000 for each
occurrence, $4,000,000 aggregate. Said insurance must also include coverage for products
and completed operations, independent contractors, personal injury and advertising injury.
If any Excess insurance is utilized to fulfill the requirements of this paragraph, the Excess
insurance must be “follow form” equal or broader in coverage scope than underlying
insurance.

Automobile Liability-Any Auto or Owned, Hired and Non-Owned Vehicles

Vehicle Liability: Consultant must maintain Business/Automobile Liability insurance with a
limit of $1,000,000 each accident on Consultant owned, hired, and non-owned vehicles
assigned to or used in the performance of Consultant's work or services under this
Agreement. If any Excess or Umbrella insurance is utilized to fulfill the requirements of this
paragraph, the Excess or Umbrella insurance must be “follow form” equal or broader in
coverage scope than underlying insurance.

Workers Compensation and Employers Liability Insurance: Consultant must maintain Workers
Compensation insurance to cover obligations imposed by federal and state statutes having
jurisdiction of Consultant employees engaged in the performance of work or services under
this Agreement and must also maintain Employers’ Liability insurance of not less than
$1,000,000 for each accident and $1,000,000 disease for each employee.

Additional Policy Provisions Required.

Self-Insured Retentions or Deductibles. Any self-insured retentions and deductibles must be
declared and approved by City. If not approved, City may require that the insurer reduce or
eliminate any deductible or self-insured retentions with respect to City, its officers, officials,
agents, employees, and volunteers.

3.1.1. Consultant's insurance must contain broad form contractual liability coverage.

3.1.2. Consultant's insurance coverage must be primary insurance with respect to City, its
officers, officials, agents, and employees. Any insurance or self-insurance maintained
by City, its officers, officials, agents, and employees will be in excess of the coverage
provided by Consultant and must not contribute to it.

3.1.3. Consultant's insurance must apply separately to each insured against whom claim is
made or suit is brought, except with respect to the limits of the insurer's liability.

City of Chandler Professional Services Agreement - Exhibit “C” Page C-2
Public Works & Utilities Department, Capital Projects Division

Project Name: CHANDLER HEIGHTS ROAD IMPROVEMENTS (MCQUEEN ROAD TO GILBERT ROAD)

Project No.: $T1614.271

Rev 10/28/2021