6-Prof Architectural Svcs Contract.pdf

PROFESSIONAL SERVICES AGREEMENT

RFQ-26-122

Professional Architectural Services (On Call)

This Professional Services Contract (“Agreement”) is entered into as of the Effective Date set forth in the executed Offer and Acceptance Form between the City of Yuma, Arizona, an Arizona municipal corporation, “the City” and “________________________.”, an Arizona Corporation, referred to as the “Consultant.” The City and the Consultant are sometimes referred to individually as a “Party” or collectively as the “Parties.”

RECITALS

WHEREAS, the City is authorized by the City Charter to execute contracts for Professional Services; and, WHEREAS, the City issued a Request for Qualification (“RFQ”) for Professional Architectural Services (On Call), RFQ- 26-122 (the Solicitation”); and, WHEREAS, the Consultant responded to the Solicitation with the proposal and represents that Consultant has the requisite expertise, and is qualified to perform the Services described in this Contract; and, WHEREAS, the City and Consultant desire to memorialize their agreement with this Agreement.

AGREEMENT

NOW, THEREFORE, in consideration of the above recitals, which are incorporated by reference, the following mutual covenants and conditions, and other good and valuable consideration the receipt and sufficiency of which is acknowledged, the Parties agree as follows:

SECTION 1 DEFINITIONS

1.1 “Agreement” means this Professional Services Agreement, including the standard terms and conditions, special terms and conditions, specifications/scope of work, fee schedule/price sheet, the Solicitation documents, instructions to offerors (including documents referenced and included) and any attachments, exhibits and addendum referenced, the offer and any best and final offer as accepted by the City, and any amendments.

1.2 “Consultant” means the individual, partnership, entity, firm, company or corporation who, as a result of the competitive process, is awarded a contract by the City of Yuma.

1.3 “Days” means calendar days unless otherwise specified.

1.4 “Litigation Expense” means any court filing fee and costs, arbitration fees and costs, witness fee, and each other fee and cost of investigating and defending or asserting any claim under this Agreement, including claims for indemnification, and including, without limitation, in each case, attorneys’ fees, professional fees, disbursements and each other fee and cost of investigating and defending, appealing or asserting any claim for indemnification under this Agreement.

1.5 “Loss” means any liability, loss, claim, settlement payment, cost and expense, interest, award, judgment, damages (including punitive damages), diminution in value, fines, fees and penalties or other charge, other than a litigation expense.

RFQ- 26-122

Professional Architectural Services

(On Call)

Awarded Consultant May 2025

1.6 “Services”, “Work” or “Project” means the subject matter of this Agreement as set forth in the Scope of Work.

1.7 “Subcontract” means any Contract, express or implied, between the Consultant and another party or between a Subconsultant and another party delegating or assigning, in whole or in part, the making or furnishing of any goods or services required for the performance of this Agreement.

1.8 “Work Product” means but is not limited to plans, specifications, cost estimates, tracings, studies, design analyses, original Mylar drawings, computer aided drafting and design (CADD) files, computer disks and/or other electronic records and media, and all “architectural work” and “works made for hire” as defined and by the United States Copyright Act, 17 U.S.C.

§ 101, et seq.

SECTION 2 SERVICES PROVIDED BY CONSULTANT

2.1 Scope of Work. Consultant shall provide those “Services” described in the Solicitation for future task delivery orders, which will be referenced in the Delivery Purchase Order.

Additional Services, which are outside the scope of basic Services contained in the Delivery Order shall not be performed by Consultant without prior written consent of the City. Authorized additional Services shall be compensated for by a fee mutually agreed upon between the City and Consultant.

2.2 Professional Practices. All Services shall be provided by personnel experienced in their respective fields and in a manner consistent with the standards of care, diligence and skill ordinarily exercised by professionals in similar fields and circumstances in accordance with sound professional practices. Consultant is responsible for knowing and complying with all applicable laws, rules, and regulations, including all applicable building regulations, license and permit requirements.

2.3 Performance to City’s Satisfaction. Consultant agrees to perform all Services required by this Agreement to the complete satisfaction of the City and as required. If the quality of Work is not satisfactory to the City, in addition to any and all other remedies available by law, the City in City’s discretion has the right to do any or all of the following: (i) Meet with Consultant to review quality of Work and resolve the matters of concern; (ii) Require Consultant to repeat the Work at no additional fee until it is satisfactory to the City; and/or (iii) Terminate this Agreement.

2.4 Investigation. Consultant warrants and agrees familiarity of the Work is required to perform the Services, is satisfied as to the conditions under which it is to be performed, is competent to perform the Services and enters into this Agreement based upon the Consultant’s own investigation and not in reliance upon representations from The City.

2.5 Warranty. Consultant warrants to the City that any and all materials, equipment and furnishings incorporated in the Work will be of good quality and new unless otherwise required or permitted by this Agreement, that the Work will be free from faults and defects not inherent in the quality required or permitted, and that the Work will conform with the requirements of this Agreement. All Work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. If required by the City’s Project Manager, Consultant or Consultant’s Subconsultant shall furnish satisfactory evidence as to the kind and quality of materials and equipment. This warranty is not limited by any other provisions of this Agreement. If, within one year after the date of final acceptance by the City of the Work required by this Agreement or within such longer period of time as may be prescribed by law or by the terms of any applicable special warranty required by this Agreement, any of the Work is found to be defective or not in accordance with this Agreement, Consultant shall correct such defective Work promptly after receipt of written notice from the City to do so unless the City has previously given Consultant a written acceptance of such condition. The City shall give the notice required promptly after discovering the condition.

SECTION 3 CONTRACT TERM

3.1 This Agreement shall be effective as of the Effective Date set forth as executed in the Offer and Acceptance Form and shall remain in full force and effect for one (1) year from the Effective Date (the “Initial Term”), unless terminated as otherwise provided in this Agreement.

After the expiration of the Initial Term, this Agreement shall automatically renew for up to four

(4) successive one-year terms (each, a “Renewal Term”) unless terminated as otherwise provided in this Agreement. The Initial Term and any Renewal Term(s) are collectively referred to as the “Term.” Upon renewal, the terms and conditions of this Agreement shall remain in full force and effect.

3.2 It will be the Consultant’s responsibility to notify the Procurement Manager in writing of any price change 30 days prior to the anniversary date of contract renewal. The City’s Contracts Manager and the Engineering Department will review documented requests for price increases after any contract has been in effect for one year. Any general price increase adjustment will only be made at the time of contract extension and will be a factor in the extension review process. Failure to do so may result in the denial of any increase requested.

The contract will automatically be renewed annually at the same price(s) if no request has been received.

SECTION 4 COMPENSATION AND BILLINGS/PAYMENTS

4.1 Compensation. The City shall pay the Consultant an amount not to exceed $250,000.00 for any individual Delivery Order in total value for the Initial Term and for each subsequent Renewal Term, if any, at the rates for On Call Services, as set forth in the Fee Proposal, attached as Exhibit B and incorporated by reference.

4.2 Method of Billing. Consultant will invoice City by the 10th day of each month through the ProjectMates portal for Services provided during the prior month. Invoices shall contain itemized hourly fees and specifically describe the Services performed, the name of the person(s) performing the Services and supporting documentation.

4.3 Review and Withholding. City’s Project Manager shall review invoices to certify payment requests. If an invoice is rejected, the City Project Manager will issue a notice of the items not approved for payment. If during the course of this Agreement, Services performed do not meet the requirements set forth in this Agreement, Consultant shall correct or modify the work to comply with this Agreement requirements and the City shall have the right to withhold payment for such work until Consultant complies with the requirements of this Agreement to the reasonable satisfaction of the City.

4.4 Payment. City shall pay Consultant within 30 days from the date the City receives a complete, correct and approved invoice. The City encourages all Consultant’s to enroll in the direct deposit electronic payment program. Instead of receiving paper checks, payments will be made electronically via Automated Clearing House (ACH) and deposited directly into an account designated by you at your financial institution. ACH Enrollment Link

4.5 Advance/Late Payments. Advance payments are not authorized. The City will not honor any invoices or claims, which are tendered more than one (1) year after the last item of the account accrues.

4.6 Fund Appropriation Contingency. Funds may not presently be available for performance under this Agreement beyond the City’s current fiscal year starting July 1 and ending on June 30th of the following year. If payment for Services extends into a new fiscal year, the City’s obligation to pay for such performance is contingent upon approval of future appropriations by City Council to fund this Agreement. The City shall have no legal liability to pay funds due for performance under the terms of this Agreement until and unless such funds are appropriated.

4.7 Free on Board (“FOB”) Destination. All prices are FOB final destination, unless otherwise provided.

4.8 Taxes. Consultant is solely responsible for any and all tax obligations that may result from Consultant’s performance of this Agreement.

SECTION 5 PROJECT TEAM/SUBCONSULTANTS/CITY PROJECT MANAGER

5.1 Project Team Selection. Prior to the start of any Services, Consultant shall provide the City detailed resumes of the proposed project manager, team members, and all Subconsultants Consultant wishes to assign or use to perform the Services for review and final approval by the City. Consultant will maintain an adequate and competent staff of qualified persons with sufficient training, knowledge and experience consistent with applicable standards as required by this Agreement. The project manager shall be responsible for and supervise all project team members and any other employees and Subconsultants assigned by the Consultant. Consultant agrees that, once assigned to work under this Agreement, the project manager and team shall not be removed or replaced without prior written consent of the City.

5.2 Discharge, Reassign, Replacement. Consultant will not discharge, reassign, replace or diminish the responsibilities of any team member approved by the City without City’s prior written consent unless that person leaves the employment of Consultant, in which case the substitute team member must be approved by the City. Consultant will promptly remove any project team member at the City’s request if that member’s performance does not equal or exceed the level of competence the City may reasonably expect of a person performing those duties or if the City reasonably believes the acts or omissions of that person are detrimental to the development of the Project.

5.3 Coordination; Interaction. Consultant’s project team are expected to work in close consultation and cooperation with all professionals working on the Project.

5.4 Subcontracts. Consultant shall not enter into any subcontract for the performances of any Service for this Agreement without the prior written approval of the City’s Project Manager.

Consultant shall identify all proposed Subconsultants and the Subconsultant’s proposed responsibilities. All subcontracts shall incorporate by reference all terms and conditions of this Agreement. Consultant is solely responsible for the performance and payment of Consultant’s Subconsultants.

https://www.yumaaz.gov/business/vendor-ach-enrollment

5.5 City Project Manager. The City will designate a City Project Manager to act on behalf of the City during the term of this Agreement. The City Project Manager has the authority to administer this Agreement and shall oversee and monitor compliance with all Agreement terms and conditions. All requests for information or decisions to be made by the City for this Agreement shall be directed to the City Project Manager.

5.6 Request for Scope of Work. When a City Project Manager requests a Scope of Work on a project and requests the Fee based on the Fee Proposal rates established, the Consultant shall include the following information:

a) date;

b) project title;

c) project manager’s name that requested the work;

d) number of days when the work is expected to be completed after a Delivery Order is issued;

e) the Contract Number RFQ- 26-122;

f) email address;

g) signed by the Consultant on company letterhead.

SECTION 6 LICENSING, DEBARMENT AND SUSPENSION

6.1 Licensing/Permits. Consultant warrants and certifies that Consultant and Consultant’s Subconsultants will maintain valid licenses, registrations, permits, and other approvals necessary to perform the Services required under this Agreement (“Approvals”). Consultant shall immediately advise the City in writing of any change in information provided by Consultant or Consultant’s Subconsultants as it relates to any Approvals. Noncompliance with this provision is a material breach this Agreement.

6.2 Debarment/Suspension. Consultant warrants and certifies neither Consultant nor any of Consultant’s Subconsultant:

a. Are presently debarred, suspended, proposed for debarment, declared ineligible or otherwise legally excluded from contracting with any federal, state or local government entity; and,

b. Have not been convicted of a criminal charge or had a civil judgment rendered against them for the commission of fraud or a criminal offense in connection with obtaining, attempting to obtain or in the performance of a public (federal, state or local) transaction or Agreement; violation of federal or state anti-trust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements or receiving stolen property; and,

c. Are not, or have not been, indicted of or otherwise criminally charged by a governmental entity with the commission of fraud or a criminal offense in connection with obtaining, attempting to obtain or performing any public transaction or contract under a public transaction; violation of federal or state anti-trust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements or receiving stolen property, within a three (3) year period preceding this Agreement; and,

d. Have not had one or more public transaction (federal, state or local) terminated for cause or default.

6.3 City has no affirmative duty or obligation to confirm or deny the existence or issuance of any Approvals or Debarments, or to examine Consultant’s contracting ability.

SECTION 7 WORK PRODUCT/CONFIDENTIALITY/ENCRYPTION

7.1 Ownership of Intellectual Property. Any and all intellectual property, including but not limited to copyright, invention, trademark, trade name, service mark, and/or trade secrets created or conceived pursuant to or as a result of this Agreement and/or any related subcontract (“Intellectual Property”) shall be work made for hire and the City shall be considered the creator of such Intellectual Property. The City shall own the entire right, title and interest to the Intellectual Property throughout the world. Consultant shall notify the City, within 30 days of the creation of any Intellectual Property by it or Consultant’s Subconsultant(s).

Consultant, on behalf of Consultant and any Subconsultant(s), agrees to execute any and all document(s) necessary to vest ownership of the Intellectual Property in the City and shall take no affirmative actions that may have the effect of vesting all or part of the Intellectual Property in any entity or person other than the City. If applicable, Consultant shall place the professional seal of Consultant on all plans and documents prepared in the performance of this Agreement.

This section is intended to apply to all original designs, plans and specifications exclusively developed for the City by Consultant and not intended to apply to standard details, systems and specifications developed and used by Consultant, which shall remain the property of Consultant and may be used with other projects without the City’s consent. Consultant warrants, and agrees to indemnify, hold harmless and defend the City for, from and against any claim that any Work Product infringes on third-party propriety rights. It is expressly agreed by Consultant that the covenants in this section are irrevocable and perpetual.

7.2 Confidential/Proprietary. All data, regardless of form, including originals, images and reproductions, prepared by, obtained by, or transmitted to Consultant in connection with this Agreement are confidential, proprietary information owned by the City. Consultant shall not disclose data generated in the performance of the Services to any third person, except an approved Subconsultant, without the prior written consent of the City Administrator.

7.2.1 Consultant covenants that all confidential data, documents, discussion, or other information developed or received by Consultant or provided in performance of this Agreement, whether electronic format or hard copy, are deemed confidential or restricted City information, (“Confidential Data”) and shall be secured and protected to avoid unauthorized access, and not be disclosed by Consultant, Consultant’s employees or Subconsultants without prior written authorization from the City.

7.2.2 At a minimum Consultant shall ensure all electronic transmissions of Confidential Data are encrypted and any cryptographic algorithm implementations used have been validated by the National Institute of Standards and Technology (NIST). The use of proprietary encryption algorithms will not be allowed for any purpose. The export of encryption technologies is restricted by the U.S. Government.

7.2.3 In the event that Consultant reasonably believes that any Confidential Data has been compromised, Consultant shall notify the City Attorney immediately. Consultant agrees to reimburse the City for any costs incurred by the City to investigate potential breaches of this Confidential Data and, where applicable, the cost of notifying individuals who may be impacted by the breach.

7.3 City Use. City may reuse the Work Product provided by Consultant and Consultant’s Subconsultant pursuant to this Agreement at Consultant’s sole discretion. In the event the Work Product is used for another project or modified by the City without further consultation with Consultant, the City agrees to indemnify and hold Consultant harmless from any claim arising out of such use of the Work Product. In such case, City will also remove any seal and title block from the Work Product.

SECTION 8 TERMINATION

8.1 Termination. The City may terminate this Agreement in whole or in part, with or without cause and for any reason, including the City’s convenience, upon thirty (30) days written notice to the Consultant.

8.2 Compensation. In the event of termination, Consultant shall immediately stop all Work and shall immediately cause any of Consultant’s suppliers and Subconsultants to cease such Work. As compensation in full for Services performed to the date of such termination, the Consultant shall receive a fee for the percentage of Services performed to the satisfaction of the City. This fee shall be in the amount mutually agreed upon by the Consultant and City, based on the Scope of Work and fee schedule. If there is no mutual agreement, the City Project Manager shall determine the percentage of Work performed for each task detailed in the Scope of Work, with Consultant’s compensation based on such determination and the fee schedule included.

8.3 Acts of Insolvency/Other. The City may terminate this Agreement immediately by written notice to Consultant if any of the following occurs: Consultant becomes insolvent; makes a general assignment for the benefit of creditors; suffers or permits the appointment of a receiver for Consultant’s business or assets; becomes subject to any proceeding under any bankruptcy or insolvency law, foreign or domestic; is wound up or liquidated, voluntarily or otherwise;

persistently or repeatedly refuses or fails to complete the work required; persistently disregards laws, rules or regulations; or fails to make prompt payment to Subconsultants or suppliers for material or labor.

8.4 Documents/Work Product. In the event of termination of this Agreement, all documents and Work Product prepared by Consultant pursuant to this Agreement including, but not limited to, finished or unfinished design, development and constructions documents, studies, drawings, maps and reports, shall be delivered to the City within ten (10) days of the City’s delivery of the termination notice to Consultant, at no cost to the City. Any use of uncompleted documents without specific written authorization of Consultant shall be at the City’s sole risk and without liability or legal expense to Consultant.

SECTION 9 INSURANCE

9.1 Minimum Scope and Limits of Insurance. Consultant shall obtain and maintain in full force and effect during the life of this Agreement, and any warranty period, all of the following minimum scope of insurance coverages with an insurance company licensed by the State of Arizona with a current A.M. Best Company, Inc. rating of not less than B++ or above and a category rating of not less than “VIII” with policies and forms satisfactory to the City. Use of alternative insurers requires prior written approval from City.

9.1.1 Commercial General Liability. Commercial General Liability insurance with a limit of not less than $1,000,000, for each occurrence and $2,000,000 in the aggregate. The policy shall include coverage for premises-operations, products/completed operations, contractual covering, personal injury/bodily injury, property damage, but not limited to, the liability assumed under the indemnification provisions of this Agreement which coverage will be at least as broad as Insurance Service Office policy form CG 00 01 07 98 or any replacement. The certificate of insurance for the Commercial General Liability insurance policy shall expressly cover the indemnification obligations of indemnification required by this Agreement. A general liability insurance policy may not be written on a “claims made” basis. These limits may be met through a combination of primary and excess liability coverage.

9.1.2 Automobile Liability. Commercial and Business Automobile Liability insurance for owned vehicles, hired, and non-owned vehicles, with a policy limit of not less than $1,000,000, combined single limits, per occurrence for bodily injury and property damage. Coverage will be at least as broad as coverage Code 1 “any auto” Insurance Service Office policy form CA 00 01 10 01 or any replacement.

9.1.3 Workers’ Compensation. Workers’ Compensation as required by State and federal law statutes having jurisdiction over Consultant’s employees engaged in the performance of any Services. Consultant agrees to waive, and to obtain endorsements from Consultant’s workers’ compensation insurer waiving subrogation rights under Consultant’s workers’ compensation insurance policy against the City, City’s officers, agents, employees, and volunteers arising from work performed by Consultant for the City and to require each of Consultant’s Subconsultants, if any, to do likewise under their workers’ compensation insurance policies.

9.1.4 Professional Liability (“Errors & Omissions”). E&O liability insurance with policy limits of not less than $1,000,000 each claim and $2,000,000 annual aggregate limit. Consultant shall obtain and maintain, such E&O liability insurance during the life of this Agreement and for three years after completion of the work.

9.1.5 Umbrella/Excess Liability. Consultant and Subconsultant shall maintain Umbrella and Excess Liability insurance with a limit of not less than $2,000,000 per occurrence combined limit Bodily Injury and Property Damage, that “follows form” and applies in excess of the Commercial General Liability, Automobile Liability, and Employer’s Liability, as required above.

Primary per occurrence coverage may be used to fulfill this requirement.

9.2 Claim Reporting. Any failure to comply with the claim reporting provisions of the policies or any breach of a policy warranty shall not affect coverage afforded under the policy to protect the City.

9.3 Notice of Cancellation. Each certificate for each insurance policy required by the insurance provisions of this Agreement shall provide the required coverage and shall not be suspended, voided, canceled, or reduced in coverage by endorsement to limits lower than those required by this Agreement, except after prior written consent from the City. Notice will be sent as required.

9.4 Endorsements/Certificates of Insurance. The commercial general liability insurance policy, business automobile liability policy and umbrella/excess liability policy shall contain or be endorsed to contain the following provisions:

9.4.1 Additional Insureds. “The City of Yuma and City’s elected and appointed boards, officers, officials, agents, employees, and volunteers are additional insureds with respect to:

liability arising out of, or related to, activities performed by or on behalf of the Consultant pursuant to Consultant’s Agreement with the City; products and completed operations of the Consultant; premises owned, occupied or used by the Consultant; automobiles owned, leased, hired, or borrowed by the Consultant.”

9.4.2 Primacy of Coverage. Consultant’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respects to the limits of insurer’s liability. Consultant’s policy shall be primary and non-contributory.

9.4.3 Certificates of Insurance. Consultant shall provide the City certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by City, prior to performing any Services under this Agreement. The insurance certificates shall be attached and incorporated by this reference.

9.5 No Representation of Coverage Adequacy. The insurance requirements are minimum requirements. The City in no way warrants that the minimum requirements are sufficient to protect Consultant from liabilities that might arise out of the performance of the Work under this Agreement by Consultant, and the Consultant is free to purchase additional insurance.

Any insurance coverage carried by the City or City’s employees is excess coverage and not contributory coverage to that provided by the Consultant. The amount and type of insurance coverage requirements set forth shall in no way be construed as limiting the scope of the indemnification obligations under this Agreement.

9.6 Non-Waiver. The City reserves the right to review any and all insurance policies and/or an endorsement required by this Agreement but has no obligation to do so. Failure to identify any insurance deficiency shall not relieve the Consultant from, nor be construed or deemed a waiver of Consultant’s obligation to maintain the required insurance at all times during the performance of this Agreement. Any failure of Consultant to comply with the reporting provisions of the policies shall not affect coverage provided to the City, City’s officers, officials, agents, employees and volunteers.

9.7 All policies, except for Professional Liability, but including Workers’ Compensation, waive rights of recovery (subrogation) against the City, City’s agents, representatives, officers, officials and employees for any claims arising out of work or Services performed by Consultant under this Agreement.

9.8 Notice of Cancellation. Each certificate for each insurance policy required by this Section shall provide the required coverage and shall not be suspended, voided, canceled, reduced in coverage by endorsement to limits lower than those required by this Agreement except after prior written consent from the City.

9.9 Claim Reporting. Any failure to comply with the claim reporting provisions of the policies or any breach of a policy warranty shall not affect coverage afforded under the policy to protect the City.

9.10 Other Consultants or Vendors. Consultant shall ensure Consultant’s Subconsultants and any vendors that may be contracted with in connection with the Project procure and maintain insurance coverage as is appropriate for their particular contract and properly endorse the City as required in this Section 9.

SECTION 10 INDEMNIFICATION/RISK OF LOSS

10.1 Indemnification.

The Indemnification provided shall extend to claims arising out of, or recovered under, Arizona's Workers' Compensation Law or the failure of Consultant to conform to any applicable and appropriate law, rule, regulation or court decree. It is the specific intention of the Parties that the Indemnitee shall, in all instances, except for claims arising solely from the gross negligent or willful acts or omissions of the Indemnitee, be indemnified by Consultant from and against any and all claims. It is agreed that the Consultant will be responsible for primary loss investigation, defense and judgment costs where this indemnification is applicable. Consultant agrees to waive all rights of subrogation against Indemnitee for claims arising from the work performed by Consultant, Consultant’s directors, officers, employees, agents, representatives, or any tier of Subconsultants pursuant to this Agreement. The provisions of Section 10 are irrevocable and perpetual, and shall survive the expiration or termination of this Agreement.

10.2 Indemnification – Patent, Copyright and Trademark. To the fullest extent permitted by law, Consultant agrees to defend, indemnify, save and hold harmless the City, City’s elected officials, officers, agents, and employees (referred to as "Indemnitee") individually and collectively at Consultant’s own expense, for, from and against any liability, including any and all expenses, losses, royalties, profits, judgments, damages, including all legal costs and expenses, court costs and attorney fees, for infringement of any patent, copyright, trademark and other proprietary rights of any third parties arising out of, related to or resulting from this Agreement or use by the City of materials furnished or Services performed under this Agreement. The City may be represented by, and actively participate through, City’s own counsel in such suit or proceedings, if it is so desires.

10.3 Cooperation. In the event any claim or action is brought against the City relating to Consultant’s Services, Consultant shall provide the City with any and all reasonable assistance and cooperation which the City may require or request.

10.4 Title and Risk of Loss. Title and risk of loss of goods and services shall not pass to the City until the City authorized personnel actually receives and accepts the goods or services at the point of delivery; and such loss, injury or destruction shall not release the Consultant from any obligation. Mere receipt does not constitute final acceptance. The risk of loss for nonconforming goods shall remain with the Consultant regardless of receipt.

10.5 Acceptance. All material and Services are subject to final inspection and acceptance by the City. Material or Services failing to conform to the specifications of this Agreement shall be held at Consultant’s risk and may be rejected by the City. If returned or rejected, all costs are the responsibility of the Consultant.

10.6 Force Majeure. Neither Party shall be in default by reason of any failure in performance of this Agreement if such failure arises out of causes beyond their reasonable control and without the fault or negligence of said Party including, unforeseeable Acts of God; terrorism or other acts of public enemy; war and epidemics or quarantine restrictions. If either Party is delayed at any time in the progress of the Work by force majeure, the delayed Party shall notify the other Party in writing of such delay, as soon as is practical, of the commencement and shall specify the causes of such delay in the notice. The notice shall be hand-delivered or mailed certified-return receipt and shall make a specific reference to this provision. The delayed Party shall cause such delay to cease as soon as practicable and shall notify the other Party in writing when it has done so. The time of completion shall be extended by contract modification for a period of time equal to the time that results or effects of such delay prevent the delayed Party from performing in accordance with this Agreement.

10.7 Insurance provisions set forth in this Agreement are separate and independent from the indemnity provisions of this paragraph and shall not be construed in any way to limit the scope and magnitude of the indemnity provisions. The indemnity provisions of this Section 10 shall not be construed in any way to limit the scope and magnitude and applicability of the insurance provisions.

SECTION 11 REPRESENTATIONS

11.1 Representations. Consultant represents that all Services provided under this Agreement shall fully conform to the specifications of this Agreement and all representations of the Consultant.

11.2 Safety. Consultant shall take all necessary precautions for the safety of employees on the work site and shall comply with all applicable provisions of law, rules, and regulations. If applicable, Consultant shall erect and properly maintain at all times, as required by the conditions and progress of the work, all necessary safeguards for the protection of workers and the public and shall post signs warning against known or unusual hazards.

11.3 Responsibility for Errors. Consultant shall be responsible for Consultant’s work and results under this Agreement. Consultant, when requested, shall furnish clarification and/or explanation as may be required by the City’s Project Manager regarding any Services rendered under this Agreement at no additional cost to the City. In the event that an error or omission attributable to Consultant occurs, Consultant shall, at no cost to the City, provide all necessary design drawings, estimates and other professional services necessary to rectify and correct the matter to the sole satisfaction of the City.

11.4 Noncompliance with Section 11 is a material breach of this Agreement. Section 11 shall survive the termination or expiration of this Agreement.

SECTION 12 CONSULTANT REPRESENTATIONS

12.1 Compliance with Laws. Consultant, Consultant’s employees and Subconsultants shall provide all Services under this Agreement in compliance with all applicable laws, rules, regulations, building codes, life safety codes, and other standards and criteria designated by the City.

12.2 Non-Discrimination. Consultant shall not discriminate against any person on the basis of race, color, religion, age, gender, or national origin in the performance of this Agreement, and shall comply with the terms and intent of Title VI of the Civil Rights Act of 1964, P.L. 88-354 as amended; the Americans with Disabilities Act, the Immigration Reform and Control Act of 1986, the Drug Free Workplace Act of 1989 and Arizona Executive Order 2009-09 as amended, in performing this Agreement and to permit the City to verify such compliance.

12.3 E-Verify. Pursuant to the provisions of the Federal Immigration and Nationalization Act and A.R.S. § 41-4401, as amended, Consultant warrants to the City that the Consultant and each of Consultant’s Subconsultants will comply with all federal immigration laws and regulations that relate to the immigration status of their employees and the requirement to use E-Verify set forth in A.R.S. § 23-214. The City may request verification of compliance from Consultant and any of Consultant’s Subconsultants under this Agreement. The City reserves the right to confirm compliance. Should the City suspect or find that the Consultant or any of Consultant’s Subconsultants are not in compliance, the City may pursue any and all remedies allowed by law, including, but not limited to suspension of Services, termination of the Agreement for breach or default, and suspension and/or debarment of the Consultant. All costs necessary for compliance shall be solely borne by the Consultant. A breach of this warranty shall be deemed a material breach of this Agreement that is subject to penalties up to and including termination of this Agreement. Consultant is subject to a penalty of $100 per day for the first violation, $500 per day for the second violation, and $1,000 per day for the third violation. The City, at City’s option, may terminate this Agreement after the third violation.

Consultant shall not be deemed in material breach of this Agreement if Consultant and/or Subconsultants establish compliance with the employment verification provisions of Sections 274A and 274B of the federal Immigration and Nationality Act and the E-Verify requirements contained in A.R.S. § 23-214(A).

12.4 Evidence of lawful presence in the United States. In accordance with A.R.S. §§ 1-501, 1-502, as amended, and as a condition of entering into this Agreement, a natural person shall execute an affidavit, and present one of the identification documents identified by statute, verifying their lawful presence in the U.S. Failure to execute this affidavit upon submittal of this Agreement documents shall be considered nonresponsive and shall result in rejection of the submitted response and automatic cancellation of this Agreement. Companies, corporations, and limited partnerships (anyone other than an individual) are not required to complete and submit this form prior to receiving a public benefit.

12.5 Liens. Consultant shall hold the City harmless from claimants supplying labor or materials to the Consultant or Consultant’s Subconsultants in the performance of the Services required under this Agreement. Consultant shall provide written certification that all liens against materials and labor have been satisfied before the City will make final payment.

12.6 Notice of Action/Suit. Consultant shall give the City prompt notice in writing of any action or suit filed, and prompt notice of any claim made against Consultant by any entity that may result in litigation related in any way to this Agreement and/or which may affect the Consultant’s performance under this Agreement.

12.7 Advertising. Consultant shall not use, advertise or promote information for commercial benefit concerning this Agreement without the prior written approval of the City Administrator.

12.8 City Logos/Marks. Consultant shall not use any trade name, trademark, service mark, or logo of the City (or any name, mark or logo confusingly similar) in any advertising, promotions, or otherwise, without the City’s express prior written consent.

12.9 Public Records. Consultant acknowledges all Agreement documents provided to the City may be subject to disclosure pursuant to Arizona Public Records laws.

12.10 Conflict of Interest. Offerors shall fully disclose all known and potential conflicts that could influence or appear to influence their judgment or the quality of their Services.

12.11 Continuation of Services - Israel: The Parties shall comply with the applicable requirements of Arizona Revised Statutes § 35-393.01. Consultant certifies that it is not currently engaged in and agrees for the duration of this Agreement that it will not engage in a boycott of Israel, as that term is defined in A.R.S. § 35-393.

12.12 Forced Labor of Ethnic Uyghurs Prohibited: Consultant shall comply with the applicable requirements of Arizona Revised Statutes § 35-394 and certifies and agrees Consultant does not currently use and will not use for the term of this Contract: (i) the forced labor of ethnic Uyghurs in the People’s Republic of China; or (ii) any goods or services produced by the forced labor of ethnic Uyghurs in the People’s Republic of China; or (iii) any Consultants, Subconsultants or suppliers that use the forced labor or any goods or services produced by the forced labor of ethnic Uyghurs in the People’s Republic of China. If the Consultant becomes aware of such a prohibited use of forced labor, Consultant shall notify the City within five days thereafter.

SECTION 13 RIGHTS/REMEDIES

13.1 Right of Assurance. Whenever one Party to this Agreement in good faith has reason to question the other Party’s intent or ability to perform, the Party questioning performance may demand that the other Party give a written assurance of the Party’s intent to perform. In the event that a demand is made and no written assurance is given within five (5) days, the demanding Party may treat this failure as an anticipatory repudiation of this Agreement.

13.2 Stop Work Order. The City may, at any time by written order to the Consultant, require the Consultant to stop all or any part of the work called for by this Agreement for period(s) of days indicated by the City after the order is delivered to the Consultant. The order shall be specifically identified as a Stop Work Order issued under this clause. Upon receipt of the order, the Consultant shall immediately comply with Consultant’s terms and take all reasonable steps to protect the work and minimize the incurrence of costs allocable to the work covered by the order during the period of work stoppage. If a stop work order issued under this clause is canceled or the period of the order or any extension expires, the Consultant shall resume work.

The Procurement Officer shall make an equitable adjustment in the delivery schedule or Agreement price, or both, and this Agreement shall be amended in writing accordingly.

13.3 Non-Exclusive Remedies. The rights and remedies of the City under this Agreement are non-exclusive.

13.4 Right of Offset. The City shall be entitled to offset against any sums due the Consultant, any expenses or costs incurred by the City, or damages assessed by the City concerning the Consultant’s non-conforming performance or failure to perform this Agreement, including expenses, costs and damages described in the Uniform Terms and Conditions.

13.5 Strict Performance. Failure of either Party to insist upon the strict performance of any item or condition of this Agreement or to exercise or delay the exercise of any right or remedy provided in this Agreement, or by law, or the acceptance of goods or services, obligations imposed by this Agreement or by law shall not be deemed a waiver of any right of either Party to insist upon the strict performance of this Agreement.

SECTION 14 GENERAL PROVISIONS

14.1 Modification. 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 with authority to do so.

14.2 Delegation and Assignment. No Party may delegate, assign, sublet or transfer any of Consultant’s rights, or performance under this Agreement, except with the prior written consent of the other Party which shall not be unreasonably withheld. Any purported assignment or delegation in violation of this Section is void.

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

14.4 Disputes, Governing Law, Attorney Fees. This Agreement shall be deemed to be made under, construed in accordance with, and governed by the laws of the State of Arizona, without regard to choice of law or conflicts of laws principles. Any action to enforce any provision of this Agreement or to obtain any remedy with respect to this Agreement shall be brought and maintained exclusively in the Superior Court, Yuma County, Arizona (or, as may be appropriate, in the Justice Courts of Yuma County, Arizona, or in the United States District Court for the District of Arizona, if, but only if, the Superior Court lacks jurisdiction over such action). The Parties expressly and irrevocably consent to the exclusive jurisdiction and venue of such courts and expressly waive the right to transfer or remove any such action commenced in accordance with the terms of this paragraph. The prevailing Party shall be reimbursed by the other Party for all attorney fees and all costs and expenses, including but not limited to all service of process, filing fees, court and court report costs, investigative costs, and expert witness fees which are incurred in any legal proceeding whatsoever arising out of this Agreement, including, bankruptcy, arbitration, declaratory relief or other litigation, including appeals or rehearing.

14.5 Provisions Required by Law. Each and every provision of law and any clause required by law to be in this Agreement shall be read and enforced as though it were included and if through mistake or otherwise any such provision is not inserted, or is not correctly inserted, then upon the application of either Party this Agreement shall forthwith be physically amended to make such insertion or correction.

14.6 Entire Agreement. This Agreement constitutes the entire Agreement of the Parties and supersedes all previous representations, written or oral, with the respect to the subject matter, goods and services specified. Any prior or contemporaneous written or oral agreement between the Parties regarding the subject matter is merged and superseded by this Agreement. This Agreement shall be construed and interpreted according to its plain meaning, and no presumption shall be deemed to apply in favor of, or against the drafting Party. The Parties acknowledge and agree that each has had the opportunity to seek and utilize legal counsel in the drafting of, review of, and entry into this Agreement.

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

14.8 Contract Order of Precedence. In the event of a conflict in the provisions of this Agreement, as accepted by the City and as they may be amended, the following shall prevail in the following order: 1. Standard Terms and Conditions; 2. Statement or Scope of Work; 3.

Solicitation, Instructions to Offerors (including other documents referenced or included); 4.

Offer or Proposal; 5. Fee Schedule/Price Sheet; and 6. Attachments, Addendums and Exhibits.

14.9 Independent Consultant. Each Party will act in its individual capacity and not as an agent, employee, partner, joint venture, or associate of the other. An employee, agent, Subconsultant or Subconsultant of one Party shall not be deemed or construed to be the employee or agent of the other for any purpose whatsoever. Consultant is advised that taxes or Social Security payments will not be withheld from any City payments issued and that the Consultant should make arrangements to directly pay such expenses, if any.

14.10 Ambiguities Not Held Against Drafter. This Agreement having been freely and voluntarily negotiated by all the Parties and the rule of contract construction that ambiguities, if any, in any term or condition of an agreement are held against the drafter of this agreement is not applicable to this Agreement.

14.11 Waiver. The delay or failure of either Party at any time to require performance of compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless in writing and signed by an authorized representative of the Party against whom enforcement of a waiver is sought. The waiver of any right or remedy in respect to any occurrence of event shall not be deemed a waiver of any right a waiver of any right or remedy in respect to any occurrence or event, nor shall any waiver constitute a continuing waiver.

14.12 Survival. The Parties agree that each Party shall remain obligated to the other Party under all provisions of this Agreement that expressly or by their nature extend beyond and survive the expiration or termination of this…