SAMPLE_AGREEMENT.pdf

ROAD SAFETY ACTION PLAN SAFE STREETS AND ROADS FOR ALL FISCAL YEAR 2024 CORRIDOR STUDY PROFESSIONAL SERVICES 2-26

ST89320192

CITY OF PHOENIX, ARIZONA

OFFICE OF THE CITY ENGINEER

DESIGN AND CONSTRUCTION PROCUREMENT

ROAD SAFETY ACTION PLAN SAFE STREETS AND ROADS

FOR ALL FISCAL YEAR 2024 CORRIDOR STUDY

PROFESSIONAL SERVICES

AGREEMENT XXXX

ROAD SAFETY ACTION PLAN SAFE STREETS AND ROADS FOR ALL FISCAL YEAR 2024 CORRIDOR STUDY PROFESSIONAL SERVICES 2-26

TABLE OF CONTENTS

RECITALS

SECTION 1 – PROJECT DESCRIPTION

SECTION 2 – PERIOD OF SERVICE……..…………………..….………………………

SECTION 3 – COMPENSATION AND PAYMENTS

SECTION 4 – CITY’S RESPONSIBILITY

SECTION 5 – CONSULTANT’S RESPONSIBILITIES

SECTION 6 – DEFINITIONS

SECTION 7 – GENERAL CONDITIONS

EXHIBIT A – INSURANCE AND INDEMNIFICATION REQUIREMENTS

EXHIBIT B – BACKGROUND SCREENING

EXHIBIT C – TRAVEL REIMBURSEMENT PROCEDURE

EXHIBIT D – DEPARTMENT SPECIFIC REQUIREMENTS…...………………….…… 53

EXHIBIT E – SBE/DBE REQUIREMENTS………………………...……………………….54

EXHIBIT F – SUPPLEMENTAL TERMS AND CONDITIONS………..…………...……...55

ATTACHMENT 1 - SCOPE OF SERVICES……………………………………………..…56

ATTACHMENT 2 - BILLABLE RATES………………………………………………………57

ATTACHMENT 3 - INSURANCE CERTIFICATES………………………………………...58

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THIS AGREEMENT is entered into by the City of Phoenix, an Arizona municipal corporation (“City”), and ------------FIRM NAME----------, a/an [state where formed] [entity type (Corp., LLC, etc.)] (“Consultant”), effective on the date the City Clerk attests (“Effective Date”). City and Consultant are referred to individually as “Party” and collectively as “Parties.”

RECITALS

The City Manager of the City of Phoenix, Arizona, is authorized and empowered by provisions of the City Charter and Code to execute Agreements for professional services.

The City proposes to (insert very general description), as more fully described in Attachment 1 and referred to as the "Project.”

The City requires professional services for this Project and desires to contract with the Consultant to provide these services.

On ______, 20__, the Phoenix City Council passed Ordinance S-____, authorizing City to enter into this Agreement for XXX day/years and $________.

AGREEMENT

In consideration of the foregoing Recitals incorporated by this reference, and the mutual promises contained in this Agreement, City and Consultant agree as follows:

SECTION 1 – PROJECT DESCRIPTION

[Insert general scope overview – what the City needs for this project]. See ATTACHMENT 1 for detailed scope of services.

SECTION 2 – PERIOD OF SERVICE

2.1. Period of Service

Services in this Agreement will be provided for a term of XXXX days/years.

Consultant’s failure to adhere to the work schedule, attached and incorporated in ATTACHMENT 1 is sufficient grounds for City to terminate this Agreement.

No phase will count the time used for City’s own reviews and approvals against Consultant’s allotted days.

SECTION 3 – COMPENSATION AND PAYMENTS

(Use either Lump Sum OR Not to Exceed, based on Department’s choice)

3.1. Not to Exceed

Consultant’s fee for completion of all work through the bid phase will not exceed $[enter amount].

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Consultant’s fee for basic services is not to exceed $[enter amount].

Additional Services and Allowances not to exceed $[enter amount] Identify services and firm providing services $

Total, not to exceed $[enter amount]

OR

3.1. Lump Sum

Consultant’s fee for completion of all work through the bid phase will not exceed $[enter amount].

Consultant’s fee for basic services is a lump sum of $[enter amount].

Additional Services and Allowances not to exceed $[enter amount] Identify services and firm providing services $

Total, not to exceed $[enter amount]

3.2. Subconsultant fees are included as “Additional Services”.

3.3. The fees for Consultant (and any subconsultant(s)) are based on the agreed hourly rates, attached and incorporated in ATTACHMENT 2.

3.4. *ESCALATION CLAUSE – [Use the following paragraph if the firm would like to have hourly rate increases due to the extended duration of the contract. Rate increase is to be no more than 3% from prior unloaded hourly rate per year/increase.]

The Contract fees for the Consultant are based upon the rates provided in Attachment 2 – Billable Rates. Basic service hourly rates are effective through -- ------ and may be negotiated at the beginning of each contract extension (or other period determined by the Project Manager – indicate specific term/should be minimum two years before rate increase), if exercised by the City. The Consultant will submit rationale and supporting documents for any rate increase request. The City reserves the right to reject rate increases at its sole discretion.

3.5. Consultant must submit monthly requests for payment on City’s payment-request form, which must include a progress report and detailed invoices (with receipts if applicable). Consultant’s submittal must also include: (1) a narrative description of tasks accomplished during the billing period; (2) a listing of any deliverables submitted; and (3) any subconsultant’s request for payment with similar narratives and listings of their work.

3.5.1. City will pay for any services negotiated as a not-to-exceed fee according to the work effort expended on that service during the month.

3.5.2. City will pay for any services negotiated as a lump sum according to the percentage of work completed during the month.

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3.5.3. City will pay for any Additional Services and Allowances as a not-to-exceed fee according to the work effort expended on that service during the month.

3.6. Consultant must submit all payment requests for City’s review and approval.

3.7. Consultant must pay all sums due to subconsultants for services and reimbursable expenses within seven days of Consultant receiving payment for those services from City. Consultant must pay subconsultants in accordance with Arizona Revised Statute § 34-221.

3.8. If authorized by City, Consultant will receive reimbursement at cost for: (1) non-overhead printing expenses incurred in excess of those required for basic services; (2) courier services; or (3) other project-related services requested by City.

3.9. Additional work, when authorized by an executed contract amendment, will be compensated for by a fee mutually agreed upon between the City and the Consultant.

3.10. No compensation to the Consultant will be allowed contrary to Chapter XIX, Section 2, Phoenix City Charter (no payment of more than 90% of the total contract price before completion of the total work).

3.11. [Delete this paragraph if not applicable.] Reasonable charges for travel will be reimbursed. Travel expenses will not exceed $[enter amount] without City’s approval. Consultant is entitled to reimbursement according to City’s travel reimbursement policy, attached and incorporated as EXHIBIT C, and will provide detailed receipts to City as required.

SECTION 4 – CITY’S RESPONSIBILITY

4.1. City will provide the following to Consultant:

4.1.1. Timely examination of Consultant’s submitted documents and prompt decision-making regarding Consultant’s work (and Consultant’s written requests for decisions) to avoid unreasonable delays.

4.1.2. Regular updates concerning City’s progress in reviewing Consultant’s work.

4.1.3. City’s forms required from Consultant.

4.2. (Delete if no design services needed) City is responsible for issuance of plans, specifications, and contract documents to bidders and other consultants and contractors.

4.3. City is also responsible for hiring the construction contractor, if applicable.

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4.4. The City’s authorized representative will be the City Engineer or another duly authorized City representative, who will be the sole contact and authority for administering this Agreement. City approvals or requests to Consultant will originate from the City Engineer or another duly authorized City representative.

4.5. For each specific project, the City will specify the allocated budget available.

SECTION 5 – CONSULTANT’S RESPONSIBILITIES

5.1. The Consultant must perform professional services to the satisfaction of the City

Engineer in accordance with the terms of this Agreement with the degree and with the care and skill that a registered professional in Arizona in Consultant’s industry would exercise under similar conditions. The Consultant may discuss the Project or its requirements with the department that will ultimately use the facility, but all specific project direction or requests must be authorized by the City Engineer.

5.2. Consultant must provide the following to City in their proposal as ATTACHMENT 1:

5.2.1. Scope of Work

5.2.2. Subconsultant Information

5.2.3. Hourly Billable Rates

5.2.4. Project Schedule

5.2.5. DBE Clause and Forms

5.3. Consultant must complete the work under this Agreement in accordance with the project schedule, attached and incorporated in ATTACHMENT 1.

5.4. Consultant must prepare all documents and materials according to the City’s standards, scope, and budget, subject to the City Engineer’s general inspection.

5.5. Within 30 days of receiving City’s review comments, Consultant must submit to

City the final set of plans that incorporates those comments. Consultant will provide bid phase services until City’s contract award to a construction contractor for the Project.

5.6. The documents prepared by the Consultant must not exceed the budget without express written approval from the City. The consultant, at the option of the City and without additional expense to the City, must without delay revise documents in a manner satisfactory to the City in an amount not exceeding the allocated budget.

5.7. Printed and bound - or electronic - copies of Consultant’s final drawings, plans, and specifications.

5.8 City’s Project Management Information System (UNIFIER)

5.8.1 The Consultant is required to maintain all Project records in electronic

ROAD SAFETY ACTION PLAN SAFE STREETS AND ROADS FOR ALL FISCAL YEAR 2024 CORRIDOR STUDY PROFESSIONAL SERVICES 2-26 format. The City provides an Application Service Provider (ASP) web-based project management database which the Consultant shall utilize in the fulfillment of the Contract requirements.

5.8.2 The Consultant shall use this ASP to process all documents related to the Work, including, but not limited to: requests for interpretation/information, change orders, design meeting minutes and submittals.

5.8.3 The Consultant shall process all Project information in electronic digital format. To fulfill this requirement, the Consultant shall provide all necessary equipment to perform the functions necessary to generate, convert, store, maintain, connect to the web-based ASP and transfer electronic data.

5.8.4 The Consultant shall provide a computerized networked office platform with broadband internet connectivity. Either wired or wireless is acceptable. This platform shall function well in a web-based environment utilizing an internet browser compatible with the City’s ASP system.

5.8.5 Training will be provided through the City. Contact information will be provided to the firms under contract, to establish the set up with a log-in and password.

SECTION 6 – DEFINITIONS

AGREEMENT (OR CONTRACT):

The signed written Agreement between the City and the Consultant which is evidence of the agreement and includes any amendments, exhibits or attachments, all of which form the agreement.

AMENDMENT:

See “Contract Amendment” definition.

APPLICABLE LAW:

Any law, rule, codes, standards, regulation, requirement, policy, consent decree, consent order, consent agreement, permit, guideline, action, determination or order of, or legal entitlement issued by, any governmental body having jurisdiction, applicable from time to time to any activities associated with this Agreement, including but not limited to design, construction and permitting or any other transaction or matter contemplated hereby, including any of the foregoing which concern health, safety, fire, environmental protection, labor relations, mitigation monitoring plans, building codes, non-discrimination and the payment of prevailing wages.

A.R.S.:

Arizona Revised Statutes.

CERTIFICATE OF INSURANCE:

A form acceptable to the City, describing and certifying the insurance coverage obtained by the insured Consultant from an insurer acceptable to the City.

CITY:

The City of Phoenix and its agents, employees, and representatives.

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CONSULTANT OR CONTRACTOR:

The individual, partnership, corporation or company who is entering into this Agreement with the City.

CONTRACT (OR AGREEMENT):

The signed written Agreement between the City and the Consultant which is evidence of the agreement and includes any amendments, exhibits or attachments, all of which form the agreement.

CONTRACT AMENDMENT:

A modification to a Contract signed by the Consultant and City that provides for a change in the Contract provisions, including additional work outside the scope of the original Agreement.

DAY(S):

Calendar Days unless otherwise specifically noted.

DEPARTMENT:

Department means the City Department overseeing the Agreement.

EFFECTIVE DATE OF THE AGREEMENT:

The date indicated in the Agreement on which it becomes effective.

NOTICE TO PROCEED:

A written notice given by City to Consultant fixing the date on which the Period of Services begins and the Consultant starts to perform the work; the Effective Date.

PAYMENT REQUEST:

Payment Request is a request from the Consultant for a progress or final payment on the prescribed form and includes all information required to be submitted with the form to substantiate the Consultant’s right to payment, and must be submitted in the format specified by the City.

SUBCONTRACT:

Any agreement entered into by the Consultant and subconsultant for a portion of the Scope of Work in connection with, and under the terms of, the Agreement.

SUBCONSULTANT:

A person or entity who has a direct contract with the Consultant to perform a portion of the Scope of Work.

SECTION 7 – GENERAL CONDITIONS

7.1. INSURANCE AND INDEMNIFICATION REQUIREMENTS:

See the Indemnification and Insurance Section Revenue ＆ Risk Management – Exhibit A.

7.2. INDEPENDENT CONTRACTOR STATUS; EMPLOYMENT DISCLAIMER:

https://cityofphoenix.sharepoint.com/sites/finance/administration/revenue-risk-management

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7.2.1. The parties agree that the Consultant is providing the services under this Agreement on a part-time and/or temporary basis and that the relationship created by this Agreement is that of employer and independent contractor.

Neither the Consultant nor any of the Consultant’s agents, employees or helpers shall be deemed to be the employee, agent, or servant of the City.

The City is interested in only the results obtained under this Contract; the manner, means and mode of completing the same are under the sole control of the Consultant.

7.2.2. This Agreement is not intended to constitute, create, give rise to, or otherwise recognize a joint venture, partnership or formal business association or organization of any kind, and the rights and obligations of the parties shall be only those expressly set forth in this Contract. The parties agree that no individual performing under this Agreement on behalf of the Consultant will be considered a City employee, and that no rights of City Civil Service, City retirement or City personnel rules shall accrue to such individual. The Consultant shall have total responsibility for all salaries, wages, bonuses, retirement, withholdings, worker’s compensation, other employee benefits, and all taxes and premiums appurtenant thereto concerning such individuals, and shall save and hold harmless the City with respect thereto.

7.3. LEGAL WORKER REQUIREMENTS:

7.3.1. The City is prohibited by Arizona Revised Statutes § 41-4401 from awarding an agreement to any Consultant who fails, or whose subconsultants fail, to comply with Arizona Revised Statutes § 23-214(A).

Therefore, Consultant agrees that:

7.3.1.1. Consultant and each subconsultant it uses warrants their compliance with all federal immigration laws and regulations that relate to their employees and their compliance with Arizona Revised Statutes § 23-214, subsection A.

7.3.1.2. A breach of warranty herein will be deemed a material breach of the Agreement and is subject to penalties up to and including termination of the Agreement.

7.3.1.3. The City retains the legal right to inspect the papers of the

Consultant’s or subconsultant’s employee(s) who work(s) on this Agreement to ensure that Consultant or subconsultant is complying with the warranty herein.

7.4. CONFIDENTIALITY AND DATA SECURITY:

For project scopes NOT involving Personal Identifying Information or Procurement Card Information, or financial information, the following applies:

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7.4.1. All data, regardless of form, including originals, images and reproductions, prepared by, obtained by, or transmitted to Consultant in connection with this Agreement is confidential, proprietary information owned by the City, unless otherwise agreed upon within this Agreement. Except as specifically provided in this Agreement, the Consultant shall not disclose data generated in the performance of the service to any third person without the prior written consent of the City Manager or his/her designee.

7.4.2. Consultant agrees to abide by all current applicable legal and industry data security and privacy requirements and to notify the City immediately if the scope of work changes or personal identifying information or information subject to Payment Card Industry Standards becomes part of the Agreement.

7.4.3. Consultant agrees to comply with all City information security and technology policies, standards, and procedures when accessing City networks and computerized systems whether onsite or remotely.

7.4.4. A violation of this Section may result in immediate termination of this Agreement without notice. The obligations of Consultant under this Section shall survive the termination of this Agreement.

For project scopes involving Personal Identifying Information or

Procurement Card Information, or financial information, replace the language above with the language from Law Department. This mostly will not apply to Design and Construction Procurement contracts.

7.5. PROJECT DOCUMENT AND COPYRIGHTS:

7.5.1. City Ownership of Project Documents All work products (electronically or manually generated) including, but not limited to: plans, Specifications, cost estimates, tracings, studies, design analyses, original drawings, Computer Aided Drafting and Design (CADD) file diskettes which reflect all final drawings, and other related documents which are prepared in the performance of this Contract (collectively referred to as “Documents”) are to be and remain the property of the City and are to be delivered to the City Representative before the final payment is made to the Consultant.

In the event these Documents are altered, modified or adapted without the written consent of the Consultant, which consent the Consultant will not unreasonably withhold, the City agrees to hold the Consultant harmless to the extent permitted by law from the legal liability arising out of the City’s alteration, modification or adaptation of the Documents.

7.5.2. Consultant to Retain Copyrights The copyrights, patents, trade secrets or other intellectual property rights associated with the ideas, concepts, techniques, inventions, processes or works of authorship developed or created by the Consultant, its subconsultants or personnel, during the course of performing this Contract or arising out of the Work will belong to the Consultant.

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7.5.3. License to City for Reasonable Use With this Contract, the Consultant and its subconsultants hereby grant a license to the City, its agents, employees, and representatives for an indefinite period of time to reasonably use, make copies, and distribute as appropriate the Documents, works or deliverables developed or created as a result of the Work and this Contract. This license also includes the making of derivative works.

7.5.4. Documents to Bear Seal The Consultant and its subconsultants will endorse by professional seal all plans, works, and deliverables prepared by each for this Contract as required by state law.

7.6. BACKGROUND SCREENING:

See the Background Screening Section – Exhibit B.

7.7. CONTACTS WITH THIRD PARTIES:

7.7.1. Consultant or its subconsultants will not contact third parties to provide any information in connection to the Services provided under this Agreement without the prior written consent of the City. Should Consultant or its subconsultants be contacted by any person requesting information or requiring testimony relative to the Services provided under this Agreement or any other prior or existing Agreement with the City, Consultant or its subconsultants will promptly inform the City giving the particulars of the information sought and will not disclose such information or give such testimony without the written consent of the City or court order. The obligations of Consultant and its subconsultants under this Section will survive the termination of this Agreement.

7.7.2. Consultant agrees that the requirements of this Section will be incorporated into all subconsultant agreements entered into by the Consultant. It is further agreed that a violation of this Section will be deemed to cause irreparable harm that justifies injunctive relief in court. A violation of this Section may result in immediate termination of this Agreement without notice.

7.7.3. The obligations of Consultant under this Section will survive the termination of this Agreement.

7.8. RECORDS / AUDIT:

7.8.1. Under generally accepted accounting principles, Consultant must keep records of: (1) accounts with the City; (2) direct personnel payroll; and (3) reimbursable expenses pertaining to the bond (construction) and insurance expenses for the contract. Consultant must make these records available to City for at least five years following Final Acceptance.

7.8.2. The City, its authorized representative, and/or the appropriate federal

ROAD SAFETY ACTION PLAN SAFE STREETS AND ROADS FOR ALL FISCAL YEAR 2024 CORRIDOR STUDY PROFESSIONAL SERVICES 2-26 agency reserves the right to audit the records of Consultant and Subconsultants to verify the accuracy and appropriateness of all cost and pricing data, including data used to negotiate the Agreement and related documents (e.g., modifications). If an audit reveals that a Consultant or Subconsultant(s) has provided false, misleading, or inaccurate cost and pricing data, City reserves the rights to: (1) decrease the Agreement’s price; (2) reduce or withhold City’s payments under the Agreement; or (3) demand reimbursement from Consultant. City reserves the right, at reasonable times, to audit Consultant’s books and records relative to the performance of service under this Agreement.

7.8.3. Consultant must include similar requirements in all contracts with

Subconsultants providing services under the Agreement. If Consultant fails to include the above provisions in all contracts with Subconsultants providing services under the Agreement—and any Subconsultants refuses to allow City to audit records to verify proper cost and pricing data—City reserves the right to: (1) decrease the Agreement’s price; (2) reduce or withhold City’s payments under the Agreement; or (3) demand reimbursement from Consultant.

7.8.4. If, following an audit of this Agreement, the audit discloses the Consultant has provided false, misleading, or inaccurate cost and pricing data, and the cost discrepancies exceed 1% of the total Agreement billings, the Consultant will be liable for reimbursement of the reasonable, actual cost of the audit.

7.9. COMPLIANCE WITH LAWS:

Consultant will comply with all existing and subsequently enacted federal, state and local laws, ordinances and codes, including all applicable ADA requirements, applicable FAA Advisory Circulars, and regulations that are, or become applicable to this Agreement. If a subsequently enacted law imposes substantial additional costs on Consultant, a request for an amendment may be submitted pursuant to this Agreement. Consultant is also required to certify its compliance with all applicable laws and Consultant will pass along these requirements to its subconsultants. If any of Consultant’s certifications is found to be false, the City may terminate this Agreement or impose other remedies due to the false certification. See also Exhibit F, Supplemental Terms and Conditions Applicable to All Airport Agreements.

7.10. ALTERATION IN CHARACTER OF WORK:

Whenever a change in the scope of work results in a substantial revision to this Agreement, thereby materially increasing or decreasing the scope of services, cost of performance, or Project schedule, the work will be performed as directed by the City. However, before any modified work is started, an Agreement Amendment shall be approved and executed by the City and the Consultant.

Such Agreement Amendment shall not be effective until approved by the City.

Additions to, modifications, or deletions from the services provided herein may be

ROAD SAFETY ACTION PLAN SAFE STREETS AND ROADS FOR ALL FISCAL YEAR 2024 CORRIDOR STUDY PROFESSIONAL SERVICES 2-26 made, and the compensation to be paid to the Consultant may accordingly be adjusted by mutual agreement of the parties. It is understood and agreed that no claim for extra work done or materials furnished by the Consultant will be allowed by the City 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. Any such work or materials furnished by the Consultant without such written authorization first being given, shall be at the Consultant’s own risk, cost, and expense, and the Consultant hereby agrees that without written authorization the Consultant will make no claim for compensation for such work or materials furnished.

7.11. INTEGRATION:

This Agreement constitutes and embodies the full and complete understanding and agreement of the parties hereto and supersedes all prior understandings, agreements, discussions, proposals, bids, negotiations, communications, and correspondence, whether oral or written. No representation, promise, inducement or statement of intention has been made by any party hereto which is not embodied in this Agreement, and no party will be bound by or liable for any statement of intention not so set forth.

7.12. GOVERNING LAW; FORUM; VENUE:

This Agreement is executed and delivered in the State of Arizona, and the substantive laws of the State of Arizona (without reference to choice of law principles) will govern their interpretation and enforcement. Any action brought to interpret or enforce any provision of this Agreement that cannot be administratively resolved, or otherwise related to or arising from this Agreement, will be commenced and maintained in the state or federal courts of the State of Arizona, Maricopa County, and each of the parties, to the extent permitted by law, consents to jurisdiction and venue in such courts for such purposes.

7.13. TERMINATION OR SUSPENSION OF SERVICES:

7.13.1. CITY’S RIGHT TO TERMINATE: The City reserves the right to terminate this Agreement without cause, or to abandon the Services, or any part of the Services not then completed, by notifying Consultant in writing.

Immediately upon receiving a written notice to terminate or suspend Services, Consultant will:

7.13.1.1. Discontinue advancing the work in progress, or such part that is described in the notice.

7.13.1.2. Deliver to the City all drawings, plans, specifications, special provisions, estimates, and other work entirely or partially completed—together with all unused materials supplied to or purchased by City.

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7.13.1.3. Appraise any work partially completed and submit that appraisal to City for evaluation.

7.13.1.4. Be paid full compensation for services performed to the date of its receipt of the Notice of Termination, including reimbursement for all reasonable costs and expenses incurred by Consultant in terminating the work, including demobilization of field service. No payment will be made for loss of anticipated profits or unperformed services.

7.13.1.5. If the City determines it improperly terminated the agreement for cause or default, the termination shall be converted to a termination for convenience in accordance with the provisions of this agreement.

7.13.2. TEMPORARY SUSPENSION: The City may, by written notice, direct

Consultant to suspend performance on all or any part of the Services for such period of time as may be determined by the City to be necessary or desirable for its convenience. If such suspension causes additional expense to Consultant in performance, and not due to fault or negligence of Consultant, the payment will be adjusted on the basis of actual costs resulting directly from the suspension, and the period for performance of the Services will be extended by mutual agreement. Any claim by Consultant for a price adjustment must be supported by appropriate documentation asserted promptly after Consultant has been notified to suspend performance.

7.14. SPECIFIC PERFORMANCE:

Consultant agrees that in the event of a breach by Consultant of any material provision of this Agreement, the City will, upon proper action instituted by it, be entitled to a decree of specific performance thereof according to the terms of this Agreement. In the event the City will elect to treat any such breach on the part of Consultant as a discharge of the Agreement, the City may nevertheless maintain an action to recover damages arising out of such breach. This paragraph is not intended as a limitation of such other remedies as may be available to the City under law or equity.

7.15. FORCE MAJEURE:

If either party is delayed or prevented from the performance of any service, in whole or part, required under this Agreement by reason of acts of God or other cause beyond the control and without fault of that party (financial inability excepted), performance of that act will be excused, but only for the period of the delay. The time for performance of the act will be extended for a period equivalent to the period of delay.

7.16. DOCUMENTATION:

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7.16.1. DISSEMINATION AND RETENTION: There will be no dissemination or publication of any information gathered, or documents prepared in the course of the performance of the Services without the prior written consent of the City. Should the City, upon advice of counsel, deem it necessary, due to existing or anticipated litigation, to assert a legal privilege of protection and non-disclosure with regard to the subject matter of this Agreement, then, and in that event, upon written demand, Consultant will relinquish to the possession and control of the City its entire file related to this Agreement and only those portions of said file deemed by the City to be not privileged will be returned to Consultant pending the resolution of the existing or anticipated litigation.

7.16.2. Format and quality: all documents prepared by Consultant will be prepared in a format and at a quality approved by the city.

7.16.3. Document review: Consultant will review all documents provided by the city related to the performance of the services and will promptly notify the city of any defects or deficiencies discovered in such review.

7.16.4. Confidentiality of plans: any plans Consultant generates must include the following statement in the title block on every page: “under phoenix city code § 2-28, these plans are for official use only and may not be shared with others unless otherwise permitted by contract to fulfill Consultant’s obligations to city.”

7.17. RELEASE OF INFORMATION - ADVERTISING AND PROMOTION:

Consultant will not publish, release, disclose or announce to any member of the public, press, official body, or any other third party: (1) any information concerning this Agreement, the Services, or any part thereof; or (2) any documentation or the contents thereof, without the prior written consent of the City, except as required by law. The name of any site on which Services are performed will not be used in any advertising or other promotional context by Consultant without the prior written consent of the City.

7.18. CONFLICTS OF INTEREST:

7.18.1. Consultant acknowledges that, to the best of its knowledge, information and belief, no person has been employed or retained to solicit or secure this Agreement upon a promise of a commission, percentage, brokerage, or contingent fee, and that no member of the Phoenix City Council or any employee of the City has any financial interest in the consulting firm. For breach of violation of this warranty, the City will have the right to annul this Agreement without liability, including any such commission, percentage, brokerage or contingent fee.

7.18.2. The City reserves the right to immediately terminate the contract in the event that the City determines that Consultant has an actual or apparent conflict of interest.

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7.18.3. Upon a finding by the City that gratuities in the form of entertainment, gifts or inducements were offered or given by Consultant, or any agent or representative of Consultant, to any officer or employee of the City for the purpose of securing this Agreement, or securing favorable treatment with respect to the awarding, amending, or making of any determination with respect to the performance of this Agreement, the City may, by one calendar day written notice to Consultant, terminate the right of Consultant to proceed under this Agreement, provided that the existence of the facts upon which the City made such finding will be an issue and may be litigated in an Arizona court of competent jurisdiction. In the event of such termination, the City will be entitled to the same remedies against Consultant as could be pursued in the event of default by Consultant.

7.18.4. This Agreement is subject to the requirements of Arizona Revised

Statutes §38-511.

7.19. NOTICE:

To evaluate and avoid potential conflicts of interest, the Consultant shall provide written notice to the City, as set forth in this Section, of any work or services performed by the Consultant for third parties that may involve or be associated with any real property or personal property owned or leased by the City. Such notice shall be given seven business days prior to commencement of the services by the Consultant for a third party, or seven business days prior to an adverse action as defined below. Written notice and disclosure shall be sent to:

City of Phoenix Office of the City Engineer

Design and Construction Procurement 200 W. Washington Street, Fifth Floor

Phoenix, Arizona 85003-1611

7.20. PUBLIC RECORDS:

7.20.1. Notwithstanding any provisions of this Agreement regarding confidentiality, secrets, or protected rights, the Consultant acknowledges that all documents provided to the City may be subject to disclosure by laws related to public records. Consequently, the Consultant understands that disclosure of some or all of the items subject to this Agreement may be required by law.

7.20.2. In the event City receives a request for disclosure that is reasonably calculated to incorporate information that might be considered confidential by Consultant, the City agrees to provide the Consultant with notice of that request, which will be deemed given when deposited by the City with the USPS for regular delivery to the address of the Consultant specified in this Agreement. Within ten calendar days of

ROAD SAFETY ACTION PLAN SAFE STREETS AND ROADS FOR ALL FISCAL YEAR 2024 CORRIDOR STUDY PROFESSIONAL SERVICES 2-26 notice from the City, the Consultant must inform the City in writing of any objection by the Consultant to the disclosure of the requested information. Failure by the Consultant to object within ten calendar days of notice will be deemed to waive any objection and any remedy against the City for disclosure.

7.20.3. In the event the Consultant objects to disclosure within ten calendar days, the Consultant agrees to handle all aspects related to request, including properly communicating with the requestor and timely responding with information the disclosure of which the Consultant does not object thereto. Furthermore, the Consultant agrees to indemnify and hold harmless the City from any claims, actions, lawsuits, or any other controversy or remedy, in whatever form, that arises from the failure to comply with the request for information and the laws pertaining to public records, including defending the City in any legal action and payment of any penalties or judgments. This provision shall survive the termination of this Agreement.

7.21. CLAIMS OR DEMANDS AGAINST THE CITY:

7.21.1. Consultant acknowledges and accepts the provisions of Chapter 18, Section 14 of the Charter of the City of Phoenix, pertaining to claims or demands against the City, including provisions therein for set-off of indebtedness to the City against demands on the City, and Consultant agrees to adhere to the prescribed procedure for presentation of claims and demands.

7.21.2. Pursuant to Phoenix City Charter Chapter 18, the City reserves the right to withhold funds from the Consultant’s progress payments up to the amount equal to the claims the City may have against the Consultant until such time that a settlement on those claims has been reached.

7.21.3. Nothing in Chapter 18, Section 14 of the Charter of the City of Phoenix alters, amends or modifies the supplemental and complementary requirements of the State of Arizona Notice of Claim statutes, Arizona Revised Statutes §§ 12-821 and 12-821.01, pertaining to claims or demands against the City. If for any reason it is determined that the City Charter and state law conflict, then state law will control.

7.21.4. Moreover, nothing in this Agreement will constitute a dispute resolution process, an administrative claims process, or contractual term as used in Arizona Revised Statutes § 12-821.01(C), sufficient to affect the date on which the cause of action accrues within Arizona Revised Statutes § 12- 821.01(A) and (B).

7.22. WAIVER OF CLAIMS FOR ANTICIPATED PROFITS:

Consultant waives any claims against the City and its officers, officials, agents and employees for loss of anticipated profits caused by the termination, a legal

ROAD SAFETY ACTION PLAN SAFE STREETS AND ROADS FOR ALL FISCAL YEAR 2024 CORRIDOR STUDY PROFESSIONAL SERVICES 2-26 proceeding, or a business decision by the City, directly or indirectly, involving any part of this Agreement.

7.23. DISPUTES:

7.23.1. The City Engineer will decide any dispute regarding this Agreement’s interpretation that City and Consultant cannot resolve by mutual agreement.

7.23.2. Consultant agrees as a condition of this Agreement that in the event of any dispute between the parties, provided no Notice of Termination has been given by the City, and if it is feasible under the terms of this Agreement each party will continue to perform the obligations not related to the dispute required of it during the resolution of such dispute, unless enjoined or prohibited by a court of competent jurisdiction.

7.23.3. Failure or delay by either party to exercise any right, power or privilege specified in or appurtenant to this Agreement will not be deemed a waiver.

7.24. THIRD PARTY BENEFICIARY CLAUSE:

The parties expressly agree that this Agreement is not intended by any of its provisions to create any right of the public or any member thereof as a third party beneficiary nor to authorize anyone not a party to this Agreement to maintain a suit for personal injuries or property damage pursuant to the terms or provisions of this Agreement.

7.25. LAWFUL PRESENCE REQUIREMENT:

Pursuant to A.R.S. §§ 1-501 and -502, the City of Phoenix is prohibited from awarding a contract to any natural person who cannot establish that he or she is lawfully present in the United States. In order to establish lawful presence, this person must produce qualifying identification and sign a City-provided affidavit affirming that the identification provided is genuine. This requirement will be imposed at the time of contract award. In the event the prevailing responder is unable to satisfy this requirement, the City will offer the award to the next-highest scoring responder. The law does not apply to fictitious entities such as corporations, partnerships and limited liability companies.

7.26. EQUAL EMPLOYMENT OPPORTUNITY:

7.26.1. In order to do business with the City, Consultant must comply with

Phoenix City Code, 1969, Chapter 18, Article V, as amended, Equal Employment Opportunity Requirements. Consultant will direct any questions regarding these requirements to the Equal Opportunity Department, (602) 262-6790.

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7.26.2. For a Consultant with 35 employees or fewer: Consultant in performing under this Agreement shall not discriminate against any worker, employee or applicant, or any member of the public, because of race, color, religion, sex, national origin, age, or disability, nor otherwise commit an unfair employment practice. The Consultant will ensure that applicants are employed, and employees are dealt with during employment without regard to their race, color, religion, sex, national origin, age, or disability. Such action shall include but not be limited to the following: employment, promotion, demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training; including apprenticeship. The Consultant further agrees that this clause will be incorporated in all subcontracts related to this Agreement that involve furnishing skilled, unskilled and union labor, or who may perform any such labor or services in connection with this Agreement. Consultant further agrees that this clause will be incorporated in all subcontracts, Consultant agreements or subleases of this agreement entered into by supplier/lessee.

7.26.3. For a Consultant with more than 35 employees: Consultant in performing under this Agreement shall not discriminate against any worker, employee or applicant, or any member of the public, because of race, color, religion, sex, national origin, age, or disability, nor otherwise commit an unfair employment practice. The Consultant will ensure that applicants are employed, and employees are dealt with during employment without regard to their race, color, religion, sex, national origin, age, or disability, and shall adhere to a policy to pay equal compensation to men and women who perform jobs that require substantially equal skill, effort, and responsibility, and that are performed within the same establishment under similar working conditions. Such action shall include but not be limited to the following: employment, promotion, demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training; including apprenticeship. The Consultant further agrees that this clause will be incorporated in all subcontracts with all labor organizations furnishing skilled, unskilled and union labor, or who may perform any such labor or services in connection with this contract.

Consultant further agrees that this clause will be incorporated in all subcontracts, job-contractor agreements or subleases of this Agreement entered into by supplier/lessee. The Consultant further agrees not to discriminate against any worker, employee or applicant, or any member of the public, because of sexual orientation or gender identity or expression and shall ensure that applicants are employed, and employees are dealt with during employment without regard to their sexual orientation or gender identity or expression.

7.26.4. Documentation: Suppliers and lessees may be required to provide additional documentation to the Equal Opportunity Department affirming that a nondiscriminatory policy is being utilized.

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7.26.5. Monitoring: The Equal Opportunity Department shall monitor the employment policies and practices of suppliers and lessees subject to this article as deemed necessary. The Equal Opportunity Department is authorized to conduct on-site compliance reviews of selected firms, which may include an audit of personnel and payroll records, if necessary.

7.27. SUCCESSORS AND ASSIGNS:

For this Agreement’s covenants, Consultant and City bind themselves and their partners, successors, assigns, and legal representatives to the other. Consultant and City may not assign, sublet, or transfer their interest in this Agreement without the other’s written consent. This Agreement does not create a contractual relationship with any third party, or otherwise establish any third-party beneficiaries.

7.28. CONSULTANT’S DUTY OF CARE:

The Consultant will be responsible for the completeness and accuracy of its work and all documents and materials prepared or compiled by Consultant for the City under this Contract. Consultant is responsible for correcting, at its expense, willful or negligent errors, omissions and acts that may be discovered with Consultant's work and all documents and materials prepared or compiled by Consultant for the City under this Contract. Any damage or increased cost incurred by the City as a result of such willful or negligent errors, omissions or acts will be chargeable to the Consultant to the extent that such willful or negligent errors, omissions and acts fall below the standard of care and skill applicable to consultants practicing this trade or specialty profession in Phoenix, Arizona under similar conditions. The fact that the City has accepted or approved the Consultant's work will in no way relieve Consultant of any of its duty of care responsibilities.

7.29. PROJECT STAFFING:

7.29.1. KEY PERSONNEL: Before starting work, Consultant must submit detailed résumés of key personnel involved in that work for City’s approval (which City will not unreasonably withhold). If Consultant later desires to change key personnel involved in that work, Consultant must submit detailed résumés of the new personnel for City’s approval (which City will not unreasonably withhold).

7.29.2. QUALIFIED STAFF: Consultant must maintain an adequate and competent staff of qualified persons—as City may determine in its sole discretion—during performance of this Agreement. If City in its sole discretion determines that any of Consultant’s staff is objectionable, Consultant must take prompt corrective action or replace that staff with new personnel, subject to City’s approval.

7.30. SUBCONSULTANTS:

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7.30.1. Before starting work, Consultant must furnish the names of its subconsultants for City’s approval (which City will not unreasonably withhold). If Consultant later desires to change subconsultants, Consultant must submit the names of its new subconsultants for City’s approval (which City will not unreasonably withhold).

7.30.2. SUBCONSULTANTS: Consultant must include similar requirements in all contracts with subconsultants providing services under the Agreement.

7.31. NON-WAIVER PROVISION:

City and Consultant may not construe a failure of the other to enforce—or require performance of—any of this Agreement’s provisions to be a waiver of that provision. Such failure will not affect the validity of any part of this Agreement or the right of City or Consultant to enforce every provision.

7.32. SURVIVAL:

All warranties, representations, and indemnifications by Consultant will survive this Agreement’s completion or termination.

7.33. SEVERABILITY:

If any provision or application of this Agreement is invalid, illegal, or unenforceable, then the Agreement’s remainder remains unaffected and enforceable to the fullest extent permitted by law.

7.34. TIME IS OF THE ESSENCE:

The time for each term, covenant, and condition of this Agreement is of the essence.

7.35. DATE OF PERFORMANCE:

If the date of performance for any obligation—or the last day of any time period— falls on a Saturday, Sunday, or one of the City’s holidays, then that period will extend to the next day that is not a Saturday, Sunday, or holiday. Unless otherwise provided, any performance due on a particular day is only timely if completed by 5 p.m. (Phoenix time) and no later.

7.36. WORK IN CITY’S RIGHT-OF-WAY:

All work that Consultant performs within City’s right-of-way must comply with City’s Traffic Barricade Manual and Right-of-Way Management Program.

Consultant is subject to civil sanctions for temporary traffic-control violations.

7.36.1. All Work performed within the City’s Right-of-Way by the Consultant and

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