ON-CALL CONTRACT BOD 2023C009.PDF
Extracted text (via pymupdf)
46528 characters
Page | 1
CONTRACT
FCD 2023C009
On-Call Quality Assurance Management and Material
Testing Services
C-69-
Page | 2
CONTRACT FCD 2023C009
On-Call Quality Assurance Management and Material Testing Services
TABLE OF CONTENTS
SECTION I – SERVICES OF THE CONSULTANT……………………………………….….. 3
SECTION II – WORK ASSIGNMENTS AND PERIOD OF SERVICES……………………. 3
SECTION III – PAYMENTS TO THE CONSULTANT…………………………………….…. 4
SECTION IV – THE DISTRICT’S RESPONSIBILITIES……………………………………… 5
SECTION V – ALTERATIONS IN THE SCOPE OF WORK ………………………………… 6
SECTION VI – RECORDS………………………………………………………………………. 6
SECTION VII – CONTRACT/WORK ASSIGNMENT COMPLETION……………………… 7
SECTION VIII – TERMINATION………………………………………………………………... 7
SECTION IX – OWNERSHIP OF DOCUMENTS…………………………………………….. 8
SECTION X – COMPLIANCE WITH LAWS…………………………………………………... 8
SECTION XI – GENERAL CONSIDERATION……………………………………………….. 10
SECTION XII – SUCCESSORS AND ASSIGNS……………………………………………... 11
SECTION XIII – NO KICK-BACK CERTIFICATION …………………………………………. 12
SECTION XIV – INFLUENCE…………………………………………………………………... 12
SECTION XV – CERTIFICATION REGARDING DEBARMENT AND SUSPENSION…… 12
SECTION XVI – CERTIFICATION REGARDING LOBBYING……………………………....13
SECTION XVII – ANTI-DISCRIMINATION PROVISION…………………………………… 14
SECTION XVIII – SMALL BUSINESS ENTERPRISE (SBE) PROGRAM…………...……. 14
SECTION XIX – FORCED LABOR…………………………………………………..……....... 15
SECTION XX – INDEMNIFICATION…………………………………………………..…….. 15
SECTION XXX – INSURANCE REQUIREMENTS……………………..…………………….. 16
SIGNATURE PAGE……………………………………………………………………………… 20
ATTACHMENTS AND EXHIBITS……..……………………………………………………….. 21
Attachment 1 – Certificate of Performance & Payments of Claims
Attachment 2 – Certificate of Insurance
Attachment 3 – Maricopa County SBE Reporting Form
Exhibit A – General Scope of Work
Exhibit B – Fee Schedules
Page | 3
CONTRACT FCD 2023C009
On-Call Quality Assurance Management and Material Testing Services
Pursuant to the provisions of the Arizona Revised Statutes (A.R.S.) § 48-3603, the Board of
Directors of the Flood Control District of Maricopa County has the authority to enter into
contracts.
The Flood Control District of Maricopa County, Arizona, hereinafter the “District”, is desirous of
having On-Call Services performed more fully described in Exhibit A, General Scope of Work,
and Exhibit B, Fee Schedule, attached; Ninyo & Moore, hereinafter called “Consultant”, with its
principal offices located at 3202 East Harbour Drive, Phoenix, AZ 85034 is desirous of
performing said services.
THEREFORE, the parties hereto mutually agree as follows:
The District’s authorized representative shall be the Project Manager or his/her duly authorized
representative, hereinafter the “Agent”.
SECTION I—SERVICES OF THE CONSULTANT
The Consultant, under the general supervision of the Agent, shall perform On-Call Services as
necessary for a QA contract according to the directions and designated standards of the
District, in accordance with Exhibit A, General Scope of Work and Exhibit B, Fee Schedule, and
only as authorized and directed through Contract Work Assignments.
The Consultant shall meet periodically with the Agent so as to keep the District informed of the
progress of the work in accordance with each Work Assignment.
SECTION II— WORK ASSIGNMENTS AND PERIOD OF SERVICE
Within the guidelines set forth in Exhibit A, General Scope of Work, a detailed scope of work will
be developed for each Work Assignment and incorporated herein by reference.
The amount of work requested during the life of the contract is unknown; the least amount being
zero and the maximum amount being limited to the "not-to-exceed" amount of the contract.
A Not to Exceed fee will be negotiated for each Work Assignment consistent with Exhibit B, Fee
Schedule.
Page | 4
The Consultant shall complete all work in accordance with the provisions of Exhibit A, General
Scope of Work and the detailed Scope of Work as negotiated for each specific Work
Assignment. Performance of a Work Assignment shall commence only upon receipt of the
Agent’s written Notice to Proceed; any work or materials furnished by the Consultant without
such written authorization first being given shall be at Consultant’s own risk, cost, and expense,
and Consultant hereby agrees to make no claim for compensation for such work or materials
furnished.
Work Assignments under this Contract may include “Optional Tasks”, which will be explicitly
identified as such in the Work Assignment Detailed Scope of Work. The Consultant must obtain
the Agent’s written authorization prior to initiating any Optional Task.
All work initiated under this Contract must be completed on or before the expiration date of the
Contract, and on or before the expiration date of the subject Work Assignment. The DISTRICT
shall have the authority to extend the term of this Contract for such period of time as deemed
necessary for the Project.
This Contract shall be effective for seven hundred thirty (730) calendar days from the date of its
execution with the option to renew at the Districts discretion or until the Contract amount of five
million dollars and zero cents ($5,000,000.00) is expended, whichever occurs first.
SECTION III—PAYMENTS TO THE CONSULTANT
The Consultant shall be paid a fee not to exceed five million dollars and zero cents
($5,000,000.00) for work under this Contract in accordance with the General Scope of Work.
The District shall make final payment to the Consultant for each Work Assignment upon
satisfactory completion and acceptance by the District, provided the Consultant returns the
executed Work Assignment Certificate of Performance furnished by the Agent. Should an
assignment require more than thirty (30) days to complete, the Consultant may invoice progress
payments based on District approved monthly progress reports and subject to the limitations set
forth in the Detailed Scope of Work negotiated for the Work Assignment.
Not-to-exceed Work Assignments will be paid on the basis of actual hours worked and actual
costs incurred, per schedules attached under the Work Assignment. The negotiated hourly rate
shall be paid for all labor performed on the Contract that meets the labor classification specified
in the Contract. Should an employee perform work associated with a labor classification above
Page | 5
or below that of the employee’s actual classification, whichever rate is lower will be used for
payment. Should a labor classification’s rate represented on a Work Assignment schedule differ
from that rate represented on the Contract Exhibit B Fee Schedule, the lowest rate will apply.
With each request for payment, the Consultant shall complete and provide the “Maricopa
County Small Business Enterprise Program Participation Reporting Form” which is included with
this Contract document.
A Certificate of Performance will be provided with each Work Assignment. Upon Completion of
each Work Assignment, the Consultant will furnish to the District that Certificate of Performance,
fully executed. Upon completion of all Work Assignments under this Contract, the Consultant
will furnish to the District an executed Contract Certificate of Performance (Attachment 1).
SECTION IV—THE DISTRICT’S RESPONSIBILITIES
The District shall furnish the Consultant, at no cost to the Consultant, the following information
or services for each Work Assignment:
A. One copy of on-hand maps, records, survey ties, benchmarks, or other data pertinent to
the Work Assignment. This does not, however, relieve the Consultant of the
responsibility of searching records for additional information, for requesting specific
information, or for verification of the information provided. The District does not warrant
the accuracy or comprehensiveness of any such information.
B. All available information and data relative to policies, standards, criteria, studies, etc.,
impacting the Work Assignment as identified by the Consultant.
C. Available staff for consultation with the Consultant during the performance of studies and
plan development in order to identify the problems, needs, and other functional aspects
of the Work Assignment.
D. Prompt examination of documents submitted by the Consultant and rendering of
decisions pertaining thereto in order to avoid unreasonable delay in the progress of the
Page | 6
work by the Consultant. The District will keep the Consultant advised concerning the
progress of the District’s review of work.
SECTION V—ALTERATION IN SCOPE OF WORK
This Contract and Work Assignments issued under this Contract may be amended by mutual
written agreement of the District and the Consultant.
Any alteration in the General Scope of Work that will result in a substantial change in the nature
of the Contract so as to materially increase or decrease the Contract fee will require negotiation
of an amendment to the Contract to be executed by the District and the Consultant; no work
shall commence on the change until the Contract amendment has been approved by the District
and the Consultant has been notified to proceed by the Agent. Any alteration in a Work
Assignment Detailed Scope of Work that will result in a substantial change in the nature of the
Work Assignment so as to materially increase or decrease the Work Assignment fee will require
negotiation of an amendment to the Work Assignment to be executed by the District; no work
shall commence on the change until the Work Assignment amendment has been approved by
the District and the Consultant has been notified to proceed by the Agent. Redistributions of
resources, between negotiated Work Assignment tasks, that do not materially impact the total
Work Assignment fee shall require the Agent’s authorization.
It is distinctly understood and agreed that no claim for extra work done or materials furnished by
the Consultant will be allowed by the District except as provided herein, nor shall the Consultant
do any work or furnish any materials not covered by this agreement unless such work is first
authorized in writing by the District and in accordance with the Maricopa County Procurement
Code. Any such work or materials furnished by the Consultant without such written authorization
first being given shall be at Consultant’s own risk, cost, and expense, and Consultant hereby
agrees to make no claim for compensation for such work or materials furnished.
SECTION VI—RECORDS
Records of the Consultant’s expenses pertaining to this Contract and records of accounts
between the District and the Consultant shall be kept by the Consultant on a generally
recognized accounting basis for six (6) years following final payment and shall be available
upon request to the District or its authorized representative for audit during normal business
Page | 7
hours. In the event that the Consultant’s records do not support a charge incurred by the
District, the Consultant shall reimburse the District for the unsupported charge or provide
supporting documentation within thirty (30) days of notification.
SECTION VII—CONTRACT/WORK ASSIGNMENT COMPLETION
If, during the course of this Contract and/or a Contract Work Assignment, situations arise which
prevent completion within the allotted time for the Contract/Work Assignment, the Agent may
grant an extension. Any work or materials furnished by the Consultant outside the allotted
Contract/Work Assignment completion time (as extended, if applicable) shall be at the
Consultant’s own risk, cost, and expense, and Consultant hereby agrees to make no claim for
compensation for such work or materials furnished.
SECTION VIII—TERMINATION
The District may terminate this Contract at any time upon reimbursement to the Consultant of
expenses that include reasonable charges for time and material for the percentage of work
satisfactorily completed and turned over to the District.
The District reserves the right to postpone, terminate, or abandon this Contract for the
Consultant’s failure to complete any Work Assignment on time, or failure to comply with the
provisions of the Contract. The District also reserves the right to terminate any or all parts of this
Contract for its own convenience as the District may determine at its sole discretion.
The District hereby gives notice that pursuant to A.R.S. § 38-511 “A” this Contract may be
canceled without penalty or further obligation within three (3) years after execution if any person
significantly involved in initiating, negotiating, securing, drafting, or creating a contract on behalf
of the District is, at any time while the contract or any extension of the contract is in effect, an
employee or agent of any other party to the contract in any capacity or a consultant to any other
party of the contract with respect to the subject matter of the contract. Cancellation under this
section shall be effective when written notice from the District Director is received by all of the
parties of the contract. In addition, the District may recoup any fee or commission paid or due to
any person significantly involved in initiating, negotiating, securing, drafting, or creating the
contract on behalf of the District from any other party to the contract arising as a result of the
contract.
Page | 8
The Consultant may terminate this Contract in the event of nonpayment of fees as specified in
Section III, Payments to the Consultant.
SECTION IX—OWNERSHIP OF DOCUMENTS
A. All original documents including, but not limited to studies, reports, tracings, drawings,
physical and computer models, estimates, field notes, investigations, design analysis,
calculations, computer software, and specifications, prepared in the performance of this
Contract are to be and remain the property of the District and are to be delivered to the
Agent before final payment is made to the Consultant. The District will not reuse, alter or
modify these documents without noting such modifications, alterations, or intent of their
reuse, and will hold the Consultant harmless from any claims arising from such reuse,
modifications, or alterations of the documents. The Consultant may retain reproducible
copies of all such documents delivered to the District.
B. If the Consultant retains reproducible copies of all such documents delivered to the District,
the Consultant may not use those documents in regard to current or future claims or
litigation against the District brought by another party or parties unless the documents are
independently produced in accordance with a court order or procedural rules and notice of
such production is given to the District immediately and prior to their production.
C. Copies retained by the Consultant, sub-consultant(s), or any related entities are governed
by Arizona Law regarding the use of public records and may not be used for commercial
purpose without additional written permission from the District and the payment of all
applicable fees.
D. The District reserves the right to reuse, reproduce and distribute the documents as it sees
fit.
SECTION X—COMPLIANCE WITH LAWS
A. The Consultant is required to comply with all Federal, State, and local laws, local ordinances
and regulations. The Consultant’s signature on this Contract certifies compliance with the
provisions of the I-9 requirements of the Immigration Reform and Control Act of 1986 for all
personnel that the Consultant and any sub-consultants employ to complete any Work
Page | 9
Assignment. It is understood that the District shall conduct itself in accordance with the
provisions of the Maricopa County Procurement Code.
The Consultant warrants that it is in compliance with A.R.S. § 41-4401 and further
acknowledges:
(1) That the Consultant and its sub-consultants, if any, warrant their compliance with all
federal immigration laws and regulations that relate to their employees and their
compliance with A.R.S. § 23-214, subsection A; After December 31, 2007, every
employer, after hiring an employee, shall verify the employment eligibility of the
employee through the e-verify program and shall keep a record of the verification for the
duration of the employee's employment or at least three years, whichever is longer.
(2) That a breach of a warranty under Subsection (1) above, shall be deemed a material
breach of the Contract that is subject to penalties up to and including termination of the
Contracts;
(3) That the contracting government entity retains the legal right to inspect the papers of any
Consultant or sub-consultant employee who works on the Contract to ensure that the
Consultant or sub-consultant is complying with the warranty provided under Subsection
(1) above and that the Consultant agrees to make all papers and employment records of
said employee(s) available during normal working hours in order to facilitate such an
inspection.
(4) That nothing herein shall make any consultant or sub-consultant an agent or employee
of the contracting government entity.
(5) The District may request verification of compliance for any Consultant or sub-consultant
performing work under the Contract. Should the District suspect or find that the
Consultant or any of its subcontractors are not in compliance, the District may pursue
any and all remedies allowed by law, including, but not limited to: suspension of work,
termination of the Contract for default, and suspension and/or debarment of the
Consultant. All costs necessary to verify compliance are the responsibility of the
Consultant.
Page | 10
SECTION XI—GENERAL CONSIDERATION
A. The Consultant shall furnish to the District for approval, the names of its key employees, and
of its sub-consultants and their key employees, to be used on the Work Assignment prior to
beginning the work under this Contract. Any subsequent changes are subject to the written
approval of the District.
B. The Consultant shall perform, with its own firm, work amounting to fifty percent (50%) or
more of the total amount of the Contract value. Any deviation may be approved, in writing, at
the discretion of the Agent.
C. The failure of either party to enforce any of the provisions of this Contract or to require
performance of the other party of any of the provisions hereof shall not be construed to be a
waiver of such provisions, nor shall it affect the validity of this Contract or any part thereof, or
the right of either party to thereafter enforce each and every provision.
D. The Consultant shall be responsible for the cost of any additional design, field layout,
testing, construction and supervision necessary to correct those errors or omissions
attributable to the Consultant, and for any damage incurred by the District as a result of
additional construction costs caused by such Consultant errors or omissions.
E. The fact that the District has accepted or approved the Consultant’s work shall in no way
relieve the Consultant’s responsibility.
F. It is mutually understood and agreed that this Contract shall be governed by the laws of the
State of Arizona, both as to interpretation and performance. Any action at law, suit in equity,
or judicial proceeding for the enforcement of this Contract, or any provision thereof, shall be
instituted only in the courts of the State of Arizona.
G. When this Contract requires the Consultant to study specific geographic areas of Maricopa
County (including, but not limited to, floodplain delineations, watercourse master plans, area
drainage master studies, or any other site specific assignment), the Consultant agrees
during the term of this Contract and any extensions thereof that Consultant will not perform
similar services for any clients other than the District within that specific geographic area
without the written authorization and approval of the Director of the District.
Page | 11
H. The Consultant shall incorporate stormwater quality best management practices (BMPs) in
the design of the project and comply with the Maricopa County Stormwater Quality
Management and Discharge Control Regulation, the Maricopa County Drainage Policies
and Standards, and the Maricopa County Drainage Regulations, using guidance from the
Maricopa County Drainage Design Manual, Vol. III, Erosion Control.
I. The Consultant agrees that it, its principals, employees, sub-consultants, agents and
assigns, shall not accept employment as consultants, expert witnesses or otherwise in any
pending or contemplated litigation against the District during the term of this Contract and
any extensions thereof without the written authorization and approval of the Director of the
District.
J. The Consultant agrees that it, its principals, employees, sub-consultants, agents and
assigns, shall not accept employment as consultants, expert witnesses or otherwise in any
future litigation against the District in regard to the subject matter of this Contract without the
written authorization and approval of the Director of the District.
K. It is understood that the District shall have the right to seek and obtain in any court of
competent jurisdiction an injunction to restrain a violation or alleged violation by the
Consultant, its principals, employees, sub-consultants, agents or assigns, of the provisions
of G., I., and J. of this section or of the provisions of B. of Section IX, and the right of action
for full damages at law, in addition to any other remedies provided by this Contract. In no
case shall a waiver by the District of the right to seek relief under this provision constitute a
waiver of any other or further violation.
SECTION XII—SUCCESSORS AND ASSIGNS
This Contract shall not be assigned by either party without prior written approval of the other
except that the Consultant may use in the performance of this Contract without prior approval of
the District, personnel or services of its related entities and affiliated companies as if they were
an integral part of the Consultant; and it shall extend to and be binding upon the heirs,
executors, administrators, successors and assigns of the parties hereto.
Page | 12
SECTION XIII—NO KICK-BACK CERTIFICATION
The Consultant warrants that no person has been employed or retained to solicit or secure this
Contract upon any agreement or understanding for a commission, percentage, brokerage, or
contingent fee; and that no member of the District’s Board of Directors or any employee of the
District has any interest, financially or otherwise, in the Consultant’s firm.
For breach or violation of this warranty, the District shall have the right to annul this Contract
without liability or at its discretion to deduct from the Contract price or consideration, the full
amount of such commission, percentage, brokerage, or contingent fee.
SECTION XIV—INFLUENCE
As prescribed in MC1-1202 of the Maricopa County Procurement Code, any effort to influence
an employee or agent to breach the Maricopa County Ethical Code of Conduct or breach any
ethical conduct, may be grounds for Debarment or Suspension under MC1-902.
An attempt to influence includes, but is not limited to:
1. A Person offering or providing a gratuity, gift, tip, present, donation, money, entertainment or
educational passes or tickets, or any type valuable contribution or subsidy;
2. That is offered or given with the intent to influence a decision, obtain a contract, garner
favorable treatment, or gain favorable consideration of any kind.
If a Person attempts to influence any employee or agent of the District or Maricopa County, the
Maricopa County Chief Procurement Officer, or his designee, reserves the right to seek any
remedy provided by the Maricopa County Procurement Code, any remedy in equity or in the
law, or any remedy provided by this Contract.
SECTION XV—CERTIFICATION REGARDING DEBARMENT AND SUSPENSION
The undersigned (authorized official signing for the Consultant) certifies to the best of his or her
knowledge and belief, that the Consultant, defined as the primary participant in accordance with
45 CFR Part 76, and its principals:
1. Are not presently debarred, suspended, proposed for debarment, declared ineligible, or
voluntarily excluded from covered transactions by any Federal Department or agency;
Page | 13
2. Have not within 3-year period preceding this Contract been convicted of or had a civil
judgment rendered against them for commission of fraud or a criminal offense in connection
with obtaining, attempting to obtain, or performing a public (Federal, State or local)
transaction or contract under a public transaction; violation of Federal or State antitrust
statues or commission of embezzlement, theft, forgery, bribery, falsification or destruction of
records, making false statements, or receiving stolen property;
3. Are not presently indicted or otherwise criminally or civilly charged by a government entity
(Federal, State or local) with commission of any of the offenses enumerated in paragraph
(2) of this certification; and
4. Have not within a 3-year period preceding this Contract had one or more public transaction
(Federal, State or local) terminated for cause of default.
Should the Consultant not be able to provide this certification, an explanation as to why should
be attached to the Contract.
The Consultant agrees to include, without modification, this clause in all lower tier covered
transactions (i.e. transactions with subcontractors) and in all solicitations for lower tier covered
transactions related to this Contract.
5. Written Certification Pursuant to A.R.S. § 35-393.01: If vendor engages in for-profit activity
And has 10 or more employees, and if this Agreement has a value of $100,000 or more,
VENDOR certifies it is not currently engaged in, and agrees for the duration of this
Agreement to not engage in, a boycott of goods or services from Israel. This certification does
not apply to a boycott prohibited by 50 U.S.C. § 4842 or a regulation issued pursuant to 50
U.S.C. § 4842.
SECTION XVI—CERTIFICATION REGARDING LOBBYING
The undersigned (authorized official signing for the Consultant) certifies, to the best of his or her
knowledge and belief, that:
1. No Federal appropriated funds have been paid or will be paid, by or on behalf of the
undersigned, to any person for influencing or attempting to influence an office or employee
Page | 14
of an agency, a Member of Congress, or an employee of a Member of Congress in
connection with the awarding of any Federal contract, the making of any Federal grant, the
making of any Federal loan, the entering into of any cooperation agreement, and the
extension, continuation, renewal, amendment, or modification of any Federal contract, grant,
loan or cooperative agreement.
2. If any funds other than Federal appropriated funds have been paid or will be paid to any
person for influencing or attempting to influence an officer or employee of any agency,
Member of Congress, an officer or employee of Congress, or an employee of a Member of
Congress in connection with this Federal contract, grant, loan, or cooperative agreement,
the undersigned shall complete and submit Standard Form-LLL, “Disclosure of Lobbying
Activities,” in accordance with it instructions.
3. The undersigned shall require that the language of this certification be included in the award
documents for all subawards at all tiers (including subcontracts, subgrants, and contracts
under grants, loans, and cooperative agreements) and that all subrecipients shall certify and
disclose accordingly. This certification is a material representation of fact upon which
reliance was placed when this transaction was made or entered into. Submission of this
certification is a prerequisite for making or entering into this transaction imposed by section
1352, title 31, U.S. Code. Any person who fails to file the required certification shall be
subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such
failure.
SECTION XVII—ANTI-DISCRIMINATION PROVISION
The Consultant agrees not to discriminate against any employee or applicant for employment
because of race, religion, gender, age, disability, or national origin, and further agrees not to
engage in any unlawful employment practices. The Consultant further agrees to insert the
foregoing provisions in all subcontracts hereunder.
SECTION XVIII – SMALL BUSINESS ENTERPRISE (SBE) PROGRAM
The Maricopa County Small Business Enterprise (SBE) Program is incorporated by reference. It
is Maricopa County’s policy to provide small businesses the opportunity to participate in the
District’s solicitation process and to be considered to fulfill the requirement for various
Page | 15
commodities and services. No specific SBE participation percentage goal or dollar amount has
been established for this Contract.
SECTION XIX - FORCED LABOR
By submitting a bid for this solicitation and/or entering into a contract as a result of this
solicitation, contractor agrees to comply with all applicable portions of Arizona Revised Statutes
Section 35-394. Contracting; procurement; prohibition; written certification; remedy; termination;
exception; definitions. Contractor certifies that it does not currently, and agrees for the duration
of the contract, that it will not use:
1. The forced labor of ethnic Uyghurs in the People’s Republic of China.
Any goods or services produced by the forced labor of ethnic Uyghurs in the People’s
Republic of China.
2. Any contractors, subcontractors or suppliers that use the forced labor or any good or
services produced by the forced labor of ethnic Uyghurs in the People’s Republic of
China.
3. If contractor becomes aware during the term of the agreement that contractor is not in
compliance with this paragraph, the contractor shall notify the County within five
business days after becoming aware of the noncompliance. If the contractor fails to
provide a written certification to the County that the contractor has remedied the
noncompliance within 180 days after notifying the County of its noncompliance, then the
agreement terminates, except that if the agreement termination date occurs before the
end the 180 day period, the agreement terminates on the agreement termination date.
SECTION XX—INDEMNIFICATION
To the fullest extent permitted by law, the Consultant shall defend, indemnify, and hold harmless
the District, Maricopa County and their agents, representatives, officers, directors, officials, and
employees from and against all claims, damages, losses, and expenses including, but not
limited to, attorney fees, court costs, expert witness fees, and the cost of appellate proceedings,
relating to, arising out of, or alleged to have resulted from the negligent acts, errors, omissions
or mistakes relating to the performance of this Contract. The Consultant’s duty to defend,
Page | 16
indemnify, and hold harmless the District, Maricopa County, and their agents, representatives,
officers, directors, officials, and employees shall arise in connection with any claim, damage,
loss or expense that is attributable to bodily injury, sickness, disease, death, or injury to,
impairment, or destruction of property, including loss of use resulting there from, caused by any
negligent acts, errors, omissions, or mistakes in the performance of this Contract including any
person for whose negligent acts, errors, omissions, or mistakes the Consultant may be legally
liable.
The amount and type of insurance coverage requirements set forth herein will in no way be
construed as limiting the scope of the indemnity in this paragraph.
The scope of this indemnification does not extend to the sole negligence of the District.
SECTION XXX—INSURANCE REQUIREMENTS
The Consultant, at the Consultant’s own expense, shall purchase and maintain the herein
stipulated minimum insurance from a company or companies duly licensed by the State of
Arizona and possessing a current A.M. Best, Inc. rating of B++. In lieu of State of Arizona
licensing, the stipulated insurance may be purchased from a company or companies, which are
authorized to do business in the State of Arizona, provided that said insurance companies meet
the approval of the District. The form of any insurance policies and forms must be acceptable to
the District.
All insurance required herein shall be maintained in full force and effect until all work or service
required to be performed under the terms of the Contract is satisfactorily completed and formally
accepted. Failure to do so may, at the sole discretion of the District, constitute a material breach
of this Contract.
The Consultant’s insurance shall be primary insurance as respects the District and Maricopa
County, and any insurance or self-insurance maintained by the District or Maricopa County shall
not contribute to it.
Any failure to comply with the claim reporting provisions of the insurance policies or any breach
of an insurance policy warranty shall not affect the District’s right to coverage afforded under the
insurance policies.
Page | 17
The insurance policies may provide coverage that contains deductibles or self-insured
retentions. Such deductible and/or self-insured retentions shall not be applicable with respect to
the coverage provided to the District under such policies. The Consultant shall be solely
responsible for the deductible and/or self-insured retention and the District, at its option, may
require the Consultant to secure payment of such deductibles or self-insured retentions by a
surety bond or an irrevocable and unconditional letter of credit.
The District reserves the right to request and to receive, within ten (10) working days, certified
copies of any or all of the herein required insurance policies and/or endorsements. The District
shall not be obligated, however, to review such policies and/or endorsements or to advise the
Consultant of any deficiencies in such policies and endorsements, and such receipt shall not
relieve the Consultant from, or be deemed a waiver of the District’s right to insist on strict
fulfillment of the Consultant’s obligations under this Contract.
The insurance policies required by this Contract, except Workers’ Compensation and Errors and
Omissions, shall name the District, Maricopa County, and their agents, representatives, officers,
directors, officials, and employees as Additional Insureds.
The policies required hereunder, except Workers’ Compensation and Errors and Omissions,
shall contain a waiver of transfer of rights of recovery (subrogation) against the District,
Maricopa County and their agents, representatives, officers, directors, officials, and employees
for any claims arising out of the Consultant’s work or service.
REQUIRED INSURANCE COVERAGES
Commercial General Liability
Commercial General Liability insurance and, when necessary, Commercial Umbrella insurance
with a limit of not less than $2,000,000 for each occurrence, $2,000,000 Products/Completed
Operations Aggregate, and $4,000,000 General Aggregate Limit. The policy shall include
coverage for bodily injury, broad form property damage, personal injury, products, and
completed operations and blanket contractual coverage, and shall not contain any provision that
would serve to limit third party action over claims.
There shall be no endorsement or modification of the CGL limiting the scope of coverage for
liability arising from explosion, collapse, or underground property damage.
Page | 18
Automobile Liability
Commercial/Business Automobile Liability insurance and, if necessary, Commercial Umbrella
insurance with a combined single limit for bodily injury and property damage of not less than
$2,000,000 each occurrence with respect to any of the Consultant’s owned, hired, and non-
owned vehicles assigned to or used in performance of the Consultant’s work or services under
this Contract.
Workers’ Compensation
Workers’ Compensation insurance to cover obligations imposed by federal and state statutes
having jurisdiction of the Consultant’s employees engaged in the performance of the work or
services under this Contract; and Employer’s Liability insurance of not less than $1,000,000 for
each accident, $1,000,000 disease for each employee, and $1,000,000 disease policy limit. The
Consultant waives all rights against the District, Maricopa County, and their agents, officers,
directors, and employees for recovery of damages to the extent these damages are covered by
the Workers’ Compensation and Employer’s Liability or commercial umbrella liability insurance
obtained by the Consultant pursuant to this Contract.
Errors and Omissions Insurance
Errors and Omissions insurance and, when necessary, Commercial Umbrella insurance, which
will insure and provide coverage for errors or omissions of the Consultant, with limits of no less
than $2,000,000 for each claim.
Certificates of Insurance
Prior to commencing work or services under this Contract, the Consultant shall furnish the
District with Certificates of Insurance in a form acceptable to the District, or formal
endorsements as required by the Contract in the form provided by the District, issued by the
Consultant’s insurer(s), as evidence that policies providing the required coverage’s, conditions,
and limits required by this Contract are in full force and effect. Such certificates shall identify this
Contract number and Contract title.
In the event any insurance policy(ies) required by this Contract is(are) written on a “claims
made” basis, coverage shall extend for two (2) years past completion and acceptance of the
Consultant’s work or services and as evidenced by annual Certificates of Insurance.
If a policy does expire during the life of the Contract, a renewal certificate must be sent to the
District fifteen (15) days prior to the expiration date.
Page | 19
Cancellation and Expiration Notice
Insurance required herein shall not expire, be canceled, or materially changed without thirty (30)
days prior written notice to the District.
……………………………………………………………………………………………………………….
Page | 20
CONTRACT FCD 2023C009
On-Call Quality Assurance Management and Material Testing Services
IN WITNESS WHEREOF, the parties herein have executed this Contract.
Ninyo & Moore
Principal (Signature)
Printed Name
Title
Date
Federal Tax Identification Number
FLOOD CONTROL DISTRICT OF MARICOPA COUNTY
RECOMMENDED BY:
ACCEPTED AND APPROVED:
Scott Vogel Date
Chairman, Board of Directors
Date
Chief Engineer and General Manager
ATTEST:
Clerk of the Board
Date
LEGAL REVIEW
Approved as to form and within the powers and authority granted under the laws of the State of
Arizona to the Flood Control District of Maricopa County.
Flood Control District General Counsel
Date
Page | 21
CONTRACT FCD 2023C009
On-Call Quality Assurance Management and Material Testing Services
ATTACHMENTS
1. Certificate of Performance
2. Certificate of Insurance
3. Maricopa County Small Business Enterprise Program Participation Reporting Form
Exhibit A – General Scope of Work
Exhibit B – Fee Schedules
Page | 22
ATTACHMENT 1
CERTIFICATE OF PERFORMANCE AND PAYMENT OF ALL CLAIMS
The undersigned hereby certifies to the Flood Control District of Maricopa County (District) that
all lawful claims for labor, rental of equipment, material used, and any other claims by Ninyo &
Moore. and its subcontractors in connection with the project described in District contract FCD
2023C009 for the On-Call – Quality Assurance Management and Material Testing Services
have been paid.
Ninyo & Moore understands that with receipt of payment for previously invoiced amounts plus
any retained monies, that this is a settlement of all claims of every nature and kind against the
District arising out of the performance of the District’s contract FCD 2023C009, relating to the
material, equipment, and work covered in and required by the contract.
The undersigned hereby certifies that to his/her knowledge, no contractual disputes exist in
regard to this contract and that he/she has no knowledge of any pending or potential claims in
regard to this contract. Upon submission of this document and a separate invoice for any
retained funds to the District, invoice processing will be completed within forty-five (45) calendar
days.
State of Arizona
)
) §
County of Maricopa )
Signed this _______day of ____________ 202___.
_________________________________
Signature
_________________________________
Printed Name and Title
SUBSCRIBED AND SWORN TO before me this _______day of ____________ 202___.
_________________________________
Notary Public
My Commission Expires: _________________
Contract 2023C009
Page 23
ATTACHMENT 2
CERTIFICATE OF INSURANCE
Contract 2022C009 Project Title: On-Call Quality Assurance Management and Material Testing Services
NAME AND ADDRESS OF INSURANCE AGENCY:
*COMPANIES AFFORDING COVERAGES:
Company
Letter
A
Company
Letter
B
Company
Letter
C
NAME AND ADDRESS OF INSURED:
Company
Letter
D
Company
Letter
E
Company
Letter
F
This certificate of insurance certifies that policies of insurance listed below have been issued to the insured named above and are in full force at this time.
*CO.
LTR.
TYPE OF INSURANCE
POLICY
NUMBER
EFFECTIVE
DATE
(MM/DD/YY)
EXPIRATION
DATE
(MM/DD/YY)
LIMITS
GENERAL LIABILITY:
COMMERCIAL GENERAL LIABILITY
: Claims Made : Occur
: PREMISES OPERATIONS
: BLANKET CONTRACTUAL
: BROAD FORM PROPERTY
DAMAGE
: PERSONAL INJURY
: PRODUCTS AND COMPLETED
OPERATIONS HAZARD
: XCU Hazards
: INDEPENDENT CONTRACTORS
GENERAL AGGREGATE
PRODUCTS/COMPLETED
OPERATIONS AGGREGATE
EACH OCCURRENCE
$4,000,000
$2,000,000
$2,000,000
AUTOMOBILE LIABILITY:
: ANY AUTO
: ALL OWNED AND NON-
OWNED AUTOS
COMBINED SINGLE LIMIT
BODILY INJURY
PROPERTY DAMAGE
PER PERSON/PER ACCIDENT
$2,000,000
$2,000,000
$2,000,000
$2,000,000
: EXCESS LIABILITY
: Umbrella Form
: Other than Umbrella Form
EACH OCCURRENCE
AGGREGATE
$
$
: WORKERS’ COMPENSATION
AND EMPLOYERS’ LIABILITY
STATUTORY LIMITS AND
EMPLOYER’S LIABILITY:
EACH ACCIDENT
DISEASE: EACH EMPLOYEE
DISEASE: POLICY LIMIT
$1,000,000
$1,000,000
$1,000,000
: PROFESSIONAL LIABILITY
EACH CLAIM
AGGREGATE
$2,000.000
$2,000,000
: OTHER:
Except for Workers’ Compensation and Professional Liability Insurance, the Flood Control District
of Maricopa County, Maricopa County, and their agents, representatives, officers, Directors,
Officials, and employees are named as Additional Insureds.
Except for Workers’ Compensation and Professional Liability Insurance, the Flood Control District of Maricopa County (District), Maricopa County, and
their agents, representatives, officers, Directors, Officials, and employees are named as Additional Insured’s on those types of policies
described herein which are required to be furnished by this contract entered into between the insured and the District. To the extent provided in this
Contract, insured shall hold harmless the District from liability arising out of any services provided or duty performed by insured as required by statute,
law, purchase order or otherwise required, with the exception of liability for loss or damage resulting from the sole negligence of the District, its agents,
employees, or indemnities. It is agreed that any insurance available to the named insured shall be primary of other sources that may be
available. It is further agreed that no policy shall expire, be cancelled, or materially changed to affect the coverage available to the District without
thirty (30) days written notice to the District. THIS CERTIFICATE IS NOT VALID UNLESS COUNTERSIGNED BY AN AUTHORIZED
REPRESENTATIVE OF THE INSURANCE COMPANY.
FLOOD CONTROL DISTRICT OF MARICOPA COUNTY
2801 WEST DURANGO STREET
PHOENIX, ARIZONA 85009
DATE ISSUED:
AUTHORIZED REPRESENTATIVE
Contract 2023C009 P a g e 2 4
ATTACHMENT 3
MARICOPA COUNTY SBE PROGRAM PARTICIPATION REPORTING FORM
PAY APPLICATION/INVOICE ATTACHMENT
This form is to be submitted with each pay application or invoice. Any pay application or invoice
without this form attached is subject to rejection as not being a completed pay application or
invoice pursuant to the terms of the contract.
FCD 2023C009
Name of Prime Consultant/Contractor
Contract Number
Contact Person
Project Number
$
Street Address
Amount of this Pay Application/Invoice
City, State ZIP
Complete below with information on the SBE firms utilized as sub-consultants/sub-contractors
for this pay application/invoice. If work was self-performed and your firm, as the prime, is an
SBE firm pursuant to A.R.S. § 41-1001, et seq., then you may list your firm as the SBE firm.
SBE Firm Name
SBE Firm Address
Type of Work Performed
$ Paid to SBE this Inv
$
$
$
$
$
$
$
$
$
$
□ A mark in this box certifies that no SBE firms were utilized as the prime, sub-consultant
or sub-contractor with respect to this pay application/invoice.
Date
Signature