HomeMy WebLinkAboutC2020-071 - Wood, Patel & Associates Contract No. 2020-071
PROFESSIONAL SERVICES AGREEMENT
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
WOOD,PATEL &ASSOCIATES,INC.
THIS PROFESSIONAL SERVICES AGREEMENT (this "Agreement") is entered into
as of April 21, 2020, between the Town of Fountain Hills, an Arizona municipal corporation(the
"Town") and Wood, Patel &Associates, Inc., a(n)Arizona corporation(the"Consultant").
RECITALS
A. Pursuant to Section 7.1 of the Town's Procurement Policy and Section 3-3-26
of the Town Code, the Town may directly select certain consultants for professional and
technical services.
B. The Consultant possesses the specific skill and experience required to provide
the Town with engineering design services related to Phase 1 of the Panorama Drive storm
drain removal and replacement project(the"Services").
C. The Town desires to enter into an Agreement with the Consultant to perform the
Services,more particularly set forth in Section 2 below.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing introduction and recitals, which
are incorporated herein by reference, the following mutual covenants and conditions, and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Town and the Consultant hereby agree as follows:
1. Term of Agreement. This Agreement shall be effective as of the date first set
forth above and shall remain in full force and effect until April 20, 2021 (the "Initial Term"),
unless terminated as otherwise provided in this Agreement. After the expiration of the Initial
Term, this Agreement may be renewed for up two successive one-year terms (each, a "Renewal
Term") if: (i) it is deemed in the best interests of the Town, subject to availability and
appropriation of funds for renewal, (ii) at least 30 days prior to the end of the then-current term
of this Agreement, the Consultant requests, in writing, to extend this Agreement for an additional
one-year term and(iii) the Town approves the additional one-year term in writing (including any
price adjustments approved as part of this Agreement), as evidenced by the Town Manager's
signature thereon, which approval may be withheld by the Town for any reason. The
Consultant's failure to seek a renewal of this Agreement shall cause this Agreement to terminate
at the end of the then-current term of this Agreement; provided, however, that the Town may, at
its discretion and with the agreement of the Consultant, elect to waive this requirement and
renew this Agreement. The Initial Term and all Renewal Terms, if any, are collectively referred
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to herein as the "Term." Upon renewal, the terms and conditions of this Agreement shall remain
in full force and effect.
2. Scope of Work. Consultant shall provide the Services as set forth in the Proposal
attached hereto as Exhibit A and incorporated herein by reference.
3. Compensation. The Town shall pay the Consultant an aggregate amount not to
exceed $98,305.00, at the rates set forth in Exhibit A.
4. Payments. The Town shall pay the Consultant monthly, based upon work
performed and completed to date, and upon submission and approval of invoices. All invoices
shall document and itemize all work completed to date. Each invoice statement shall include a
record of time expended and work performed in sufficient detail to justify payment. This
Agreement must be referenced on all invoices.
5. Documents. All documents, including any intellectual property rights thereto,
prepared and submitted to the Town pursuant to this Agreement shall be the property of the
Town.
6. Consultant Personnel. Consultant shall provide adequate, experienced personnel,
capable of and devoted to the successful performance of the Services under this Agreement.
Consultant agrees to assign specific individuals to key positions. If deemed qualified, the
Consultant is encouraged to hire Town residents to fill vacant positions at all levels. Consultant
agrees that, upon commencement of the Services to be performed under this Agreement, key
personnel shall not be removed or replaced without prior written notice to the Town. If key
personnel are not available to perform the Services for a continuous period exceeding 30
calendar days, or are expected to devote substantially less effort to the Services than initially
anticipated, Consultant shall immediately notify the Town of same and shall, subject to the
concurrence of the Town, replace such personnel with personnel possessing substantially equal
ability and qualifications.
7. Inspection; Acceptance. All work shall be subject to inspection and acceptance
by the Town at reasonable times during Consultant's performance. The Consultant shall provide
and maintain a self-inspection system that is acceptable to the Town.
8. Licenses; Materials. Consultant shall maintain in current status all federal, state
and local licenses and permits required for the operation of the business conducted by the
Consultant. The Town has no obligation to provide Consultant, its employees or subcontractors
any business registrations or licenses required to perform the specific services set forth in this
Agreement. The Town has no obligation to provide tools, equipment or material to Consultant.
9. Performance Warranty. Consultant warrants that the Services rendered will
conform to the requirements of this Agreement and with the care and skill ordinarilyused
q �' by
members of the same profession practicing under similar circumstances at the same time and in
the same locality.
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10. Indemnification. To the fullest extent permitted by law, the Consultant shall
indemnify, defend and hold harmless the Town and each council member, officer, employee or
agent thereof(the Town and any such person being herein called an "Indemnified Party"), for,
from and against losses, claims, damages, liabilities, costs and expenses (including, but not
limited to, reasonable attorneys' fees, court costs and the costs of appellate proceedings) to
which any such Indemnified Party may become subject, under any theory of liability whatsoever
("Claims"), insofar as such Claims (or actions in respect thereof) relate to, arise out of, or are
caused by. or based upon the negligent acts, intentional misconduct, errors, mistakes or
omissions, breach of contract, in connection with the work or services of the Consultant, its
officers, employees, agents, or any tier of subcontractor in the performance of this Agreement.
The amount and type of insurance coverage requirements set forth below will in no way be
construed as limiting the scope of the indemnity in this Section.
11. Insurance.
11.1 General.
A. Insurer Qualifications. Without limiting any obligations or
liabilities of Consultant, Consultant shall purchase and maintain, at its own expense,
hereinafter stipulated minimum insurance with insurance companies authorized to do
business in the State of Arizona pursuant to ARIz. REV. STAT. § 20-206, as amended, with
an AM Best, Inc. rating of A- or above with policies and forms satisfactory to the Town.
Failure to maintain insurance as specified herein may result in termination of this
Agreement at the Town's option.
B. No Representation of Coverage Adequacy. By requiring insurance
herein, the Town does not represent that coverage and limits will be adequate to protect
Consultant. The Town reserves the right to review any and all of the insurance policies
and/or endorsements cited in this Agreement but has no obligation to do so. Failure to
demand such evidence of full compliance with the insurance requirements set forth in this
Agreement or failure to identify any insurance deficiency shall not relieve Consultant
from, nor be construed or deemed a waiver of, its obligation to maintain the required
insurance at all times during the performance of this Agreement.
C. Additional Insured. All insurance coverage, except Workers'
Compensation insurance and Professional Liability insurance, if applicable, shall name,
to the fullest extent permitted by law for claims arising out of the performance of this
Agreement, the Town, its agents, representatives, officers, directors, officials and
employees as Additional Insured as specified under the respective coverage sections of
this Agreement.
D. Coverage Term. All insurance required herein shall be maintained
in full force and effect until all work or services required to be performed under the terms
of this Agreement are satisfactorily performed, completed and formally accepted by the
Town,unless specified otherwise in this Agreement.
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E. Primary Insurance. Consultant's insurance shall be primary
insurance with respect to performance of this Agreement and in the protection of the
Town as an Additional Insured.
F. Claims Made. In the event any insurance policies required by this
Agreement are written on a"claims made"basis, coverage shall extend, either by keeping
coverage in force or purchasing an extended reporting option, for three years past
completion and acceptance of the services. Such continuing coverage shall be evidenced
by submission of annual Certificates of Insurance citing applicable coverage is in force
and contains the provisions as required herein for the three-year period.
G. Waiver. All policies, except for Professional Liability, including
Workers' Compensation insurance, shall contain a waiver of rights of recovery
(subrogation) against the Town, its agents, representatives, officials, officers and
employees for any claims arising out of the work or services of Consultant. Consultant
shall arrange to have such subrogation waivers incorporated into each policy via formal
written endorsement thereto.
H. Policy Deductibles and/or Self-Insured Retentions. The policies
set forth in these requirements may provide coverage that contains deductibles or self-
insured retention amounts. Such deductibles or self-insured retention shall not be
applicable with respect to the policy limits provided to the Town. Consultant shall be
solely responsible for any such deductible or self-insured retention amount.
I. Use se of Subcontractors. If any work under this Agreement is
subcontracted in any way, Consultant shall execute written agreements with its
subcontractors containing the indemnification provisions set forth in this Agreement and
insurance requirements set forth herein protecting the Town and Consultant. Consultant
shall be responsible for executing any agreements with its subcontractors and obtaining
certificates of insurance verifying the insurance requirements.
J. Evidence of Insurance. Prior to commencing any work or services
under this Agreement, Consultant will provide the Town with suitable evidence of
insurance in the form of certificates of insurance and a copy of the declaration page(s) of
the insurance policies as required by this Agreement, issued by Consultant's insurance
insurer(s) as evidence that policies are placed with acceptable insurers as specified herein
and provide the required coverages, conditions and limits of coverage specified in this
Agreement and that such coverage and provisions are in full force and effect.
Confidential information such as the policy premium may be redacted from the
declaration page(s) of each insurance policy, provided that such redactions do not alter
any of the information required by this Agreement. The Town shall reasonably rely upon
the certificates of insurance and declaration page(s) of the insurance policies as evidence
of coverage but such acceptance and reliance shall not waive or alter in any way the
insurance requirements or obligations of this Agreement. If any of the policies required
by this Agreement expire during the life of this Agreement, it shall be Consultant's
responsibility to forward renewal certificates and declaration page(s) to the Town 30 days
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prior to the expiration date. All certificates of insurance and declarations required by this
Agreement shall be identified by referencing the RFP number and title or this Agreement.
A $25.00 administrative fee shall be assessed for all certificates or declarations received
without the appropriate RFP number and title or a reference to this Agreement, as
applicable. Additionally, certificates of insurance and declaration page(s) of the
insurance policies submitted without referencing the appropriate RFP number and title or
a reference to this Agreement, as applicable, will be subject to rejection and may be
returned or discarded. Certificates of insurance and declaration page(s) shall specifically
include the following provisions:
(1) The Town, its agents, representatives, officers, directors,
officials and employees are Additional Insureds as follows:
(a) Commercial General Liability — Under Insurance
Services Office, Inc., ("ISO") Form CG 20 10 03 97 or equivalent.
(b) Auto Liability — Under ISO Form CA 20 48 or
equivalent.
(c) Excess Liability — Follow Form to underlying
insurance.
(2) Consultant's insurance shall be primary insurance with
respect to performance of this Agreement.
(3) All policies, except for Professional Liability, including
Workers' Compensation, waive rights of recovery (subrogation) against Town, its
agents, representatives, officers, officials and employees for any claims arising
out of work or services performed by Consultant under this Agreement.
(4) ACORD certificate of insurance form 25 (2014/01) is
preferred. If ACORD certificate of insurance form 25 (2001/08) is used, the
phrases in the cancellation provision "endeavor to" and "but failure to mail such
notice shall impose no obligation or liability of any kind upon the company, its
agents or representatives" shall be deleted. Certificate forms other than ACORD
form shall have similar restrictive language deleted.
11.2 Required Insurance Coverage.
A. Commercial General Liability. Consultant shall maintain
"occurrence" form Commercial General Liability insurance with an unimpaired limit of
not less than $1,000,000 for each occurrence, $2,000,000 Products and Completed
Operations Annual Aggregate and a $2,000,000 General Aggregate Limit. The policy
shall cover liability arising from premises, operations, independent contractors, products-
completed operations, personal injury and advertising injury. Coverage under the policy
will be at least as broad as ISO policy form CG 00 010 93 or equivalent thereof,
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including but not limited to, separation of insured's clause. To the fullest extent allowed
by law, for claims arising out of the performance of this Agreement, the Town, its agents,
representatives, officers, officials and employees shall be cited as an Additional Insured
under ISO, Commercial General Liability Additional Insured Endorsement form CG 20
10 03 97, or equivalent, which shall read "Who is an Insured (Section II) is amended to
include as an insured the person or organization shown in the Schedule, but only with
respect to liability arising out of "your work" for that insured by or for you." If any
Excess insurance is utilized to fulfill the requirements of this subsection, such Excess
insurance shall be "follow form" equal or broader in coverage scope than underlying
insurance.
B. Vehicle Liability. Consultant shall maintain Business Automobile
Liability insurance with a limit of$1,000,000 each occurrence on Consultant's owned,
hired and non-owned vehicles assigned to or used in the performance of the Consultant's
work or services under this Agreement. Coverage will be at least as broad as ISO
coverage code "1" "any auto" policy form CA 00 01 12 93 or equivalent thereof. To the
fullest extent allowed by law, for claims arising out of the performance of this
Agreement, the Town, its agents, representatives, officers, directors, officials and
employees shall be cited as an Additional Insured under ISO Business Auto policy
Designated Insured Endorsement form CA 20 48 or equivalent. If any Excess insurance
is utilized to fulfill the requirements of this subsection, such Excess insurance shall be
"follow form" equal or broader in coverage scope than underlying insurance.
C. Professional Liability. If this Agreement is the subject of any
professional services or work, or if the Consultant engages in any professional services or
work in any way related to performing the work under this Agreement, the Consultant
shall maintain Professional Liability insurance covering negligent errors and omissions
arising out of the Services performed by the Consultant, or anyone employed by the
Consultant, or anyone for whose negligent acts, mistakes, errors and omissions the
Consultant is legally liable, with an unimpaired liability insurance limit of $2,000,000
each claim and$2,000,000 annual aggregate.
D. Workers' Compensation Insurance. Consultant shall maintain
Workers' Compensation insurance to cover obligations imposed by federal and state
statutes having jurisdiction over Consultant's employees engaged in the performance of
work or services under this Agreement and shall also maintain Employers Liability
Insurance of not less than $500,000 for each accident, $500,000 disease for each
employee and$1,000,000 disease policy limit.
11.3 Cancellation and Expiration Notice. Insurance required herein shall not
expire,be canceled, or be materially changed without 30 days' prior written notice to the Town.
12. Termination; Cancellation.
12.1 For Town's Convenience. This Agreement is for the convenience of the
Town and, as such, may be terminated without cause after receipt by Consultant of written notice
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by the Town. Upon termination for convenience, Consultant shall be paid for all undisputed
services performed to the termination date.
12.2 For Cause. If either party fails to perform any obligation pursuant to this
Agreement and such party fails to cure its nonperformance within 30 days after notice of
nonperformance is given by the non-defaulting party, such party will be in default. In the event
of such default, the non-defaulting party may terminate this Agreement immediately for cause
and will have all remedies that are available to it at law or in equity including, without limitation,
the remedy of specific performance. If the nature of the defaulting party's nonperformance is
such that it cannot reasonably be cured within 30 days, then the defaulting party will have such
additional periods of time as may be reasonably necessary under the circumstances, provided the
defaulting party immediately (A) provides written notice to the non-defaulting party and (B)
commences to cure its nonperformance and thereafter diligently continues to completion the cure
of its nonperformance. In no event shall any such cure period exceed 90 days. In the event of
such termination for cause, payment shall be made by the Town to the Consultant for the
undisputed portion of its fee due as of the termination date.
12.3 Due to Work Stoppage. This Agreement may be terminated by the Town
upon 30 days' written notice to Consultant in the event that the Services are permanently
abandoned. In the event of such termination due to work stoppage, payment shall be made by
the Town to the Consultant for the undisputed portion of its fee due as of the termination date.
12.4 Conflict of Interest. This Agreement is subject to the provisions of ARIz.
REV. STAT. § 38-511. The Town may cancel this Agreement without penalty or further
obligations by the Town or any of its departments or agencies if any person significantly
involved in initiating, negotiating, securing, drafting or creating this Agreement on behalf of the
Town or any of its departments or agencies is, at any time while this Agreement or any extension
of this Agreement is in effect, an employee of any other party to this Agreement in any capacity
or a Consultant to any other party of this Agreement with respect to the subject matter of this
Agreement.
12.5 Gratuities. The Town may, by written notice to the Consultant, cancel this
Agreement if it is found by the Town that gratuities, in the form of economic opportunity, future
employment, entertainment, gifts or otherwise, were offered or given by the Consultant or any
agent or representative of the Consultant to any officer, agent or employee of the Town for the
purpose of securing this Agreement. In the event this Agreement is canceled by the Town
pursuant to this provision, the Town shall be entitled, in addition to any other rights and
remedies, to recover and withhold from the Consultant an amount equal to 150% of the gratuity.
12.6 Agreement Subject to Appropriation. This Agreement is subject to the
provisions of ARIz. CONST. ART. IX, § 5 and ARIz. REV. STAT. § 42-17106. The provisions of
this Agreement for payment of funds by the Town shall be effective when funds are appropriated
for purposes of this Agreement and are actually available for payment. The Town shall be the
sole judge and authority in determining the availability of funds under this Agreement and the
Town shall keep the Consultant fully informed as to the availability of funds for this Agreement.
The obligation of the Town to make any payment pursuant to this Agreement is a current
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expense of the Town, payable exclusively from such annual appropriations, and is not a general
obligation or indebtedness of the Town. If the Town Council fails to appropriate money
sufficient to pay the amounts as set forth in this Agreement during any immediately succeeding
fiscal year, this Agreement shall terminate at the end of then-current fiscal year and the Town
and the Consultant shall be relieved of any subsequent obligation under this Agreement.
13. Miscellaneous.
13.1 Independent Contractor. It is clearly understood that each party will act in
its individual capacity and not as an agent, employee, partner,joint venturer, or associate of the
other. An employee or agent of one party shall not be deemed or construed to be the employee
acknowledges ag
rees agent of the other for any purpose whatsoever. The Consultantack ow edges and d ag ees that
the Services provided under this Agreement are being provided as an independent contractor, not
as an employee or agent of the Town. Consultant, its employees and subcontractors are not
entitled to workers' compensation benefits from the Town. The Town does not have the
authority to supervise or control the actual work of Consultant, its employees or subcontractors.
The Consultant, and not the Town, shall determine the time of its performance of the services
provided under this Agreement so long as Consultant meets the requirements as agreed in
Section 2 above and in Exhibit A. Consultant is neither prohibited from entering into other
contracts nor prohibited from practicing its profession elsewhere. Town and Consultant do not
intend to nor will they combine business operations under this Agreement.
13.2 Applicable Law; Venue. This Agreement shall be governed by the laws of
the State of Arizona and suit pertaining to this Agreement may be brought only in courts in
Maricopa County,Arizona.
13.3 Laws and Regulations. Consultant shall keep fully informed and shall at
all times during the performance of its duties under this Agreement ensure that it and any person
for whom the Consultant is responsible abides by, and remains in compliance with, all rules,
regulations, ordinances, statutes or laws affecting the Services, including, but not limited to, the
following: (A) existing and future Town and County ordinances and regulations; (B) existing and
future State and Federal laws; and (C) existing and future Occupational Safety and Health
Administration standards.
13.4 Amendments. This Agreement may be modified only by a written
amendment signed by persons duly authorized to enter into contracts on behalf of the Town and
the Consultant.
13.5 Provisions Required by Law. Each and every provision of law and any
clause required by law to be in this Agreement will be read and enforced as though it were
included herein 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 will promptly be
physically amended to make such insertion or correction.
13.6 Severability. The provisions of this Agreement are severable to the extent
that any provision or application held to be invalid by a Court of competent jurisdiction shall not
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affect any other provision or application of this Agreement which may remain in effect without
the invalid provision or application.
13.7 Entire Agreement; Interpretation; Parol Evidence. This Agreement
represents the entire agreement of the parties with respect to its subject matter, and all previous
agreements, whether oral or written, entered into prior to this Agreement are hereby revoked and
superseded by this Agreement. No representations, warranties, inducements or oral agreements
have been made by any of the parties except as expressly set forth herein, or in any other
contemporaneous written agreement executed for the purposes of carrying out the provisions of
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 party drafting
this Agreement. 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.
13.8 Assignment; Delegation. No right or interest in this Agreement shall be
assigned or delegated by Consultant without prior,written permission of the Town, signed by the
Town Manager. Any attempted assignment or delegation by Consultant in violation of this
provision shall be a breach of this Agreement by Consultant.
13.9 Subcontracts. No subcontract shall be entered into by the Consultant with
any other party to furnish any of the material or services specified herein without the prior
written approval of the Town. The Consultant is responsible for performance under this
Agreement whether or not subcontractors are used. Failure to pay subcontractors in a timely
manner pursuant to any subcontract shall be a material breach of this Agreement by Consultant.
13.10 Rights and Remedies. No provision in this Agreement shall be construed,
expressly or by implication, as waiver by the Town of any existing or future right and/or remedy
available by law in the event of any claim of default or breach of this Agreement. The failure of
the Town to insist upon the strict performance of any term 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 Town's acceptance of and payment for services, shall not release the Consultant from any
responsibilities or obligations imposed by this Agreement or by law, and shall not be deemed a
waiver of any right of the Town to insist upon the strict performance of this Agreement.
13.11 Attorneys' Fees. In the event either party brings any action for any relief,
declaratory or otherwise, arising out of this Agreement or on account of any breach or default
hereof, the prevailing party shall be entitled to receive from the other party reasonable attorneys'
fees and reasonable costs and expenses, determined by the court sitting without a jury, which
shall be deemed to have accrued on the commencement of such action and shall be enforced
whether or not such action is prosecuted through judgment.
13.12 Liens. All materials or services shall be free of all liens and, if the Town
requests, a formal release of all liens shall be delivered to the Town.
13.13 Offset.
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A. Offset for Damages. In addition to all other remedies at law or
equity, the Town may offset from any money due to the Consultant any amounts
Consultant owes to the Town for damages resulting from breach or deficiencies in
performance or breach of any obligation under this Agreement.
B. Offset for Delinquent Fees or Taxes. The Town may offset from
any money due to the Consultant any amounts Consultant owes to the Town for
delinquent fees, transaction privilege taxes and property taxes, including any interest or
penalties.
13.14 Notices and Requests. Any notice or other communication required or
permitted to be given under this Agreement shall be in writing and shall be deemed to have been
duly given if(A) delivered to the party at the address set forth below, (B) deposited in the U.S.
Mail, registered or certified, return receipt requested, to the address set forth below or (C) given
to a recognized and reputable overnight delivery service, to the address set forth below:
If to the Town: Town of Fountain Hills
16705 East Avenue of the Fountains
Fountain Hills, Arizona 85268
Attn: Grady E. Miller,Town Manager
With copy to: Pierce Coleman PLLC
4711 East Falcon Drive, Suite 111
Mesa,Arizona 85215
Attn: Aaron D. Arnson, Town Attorney
If to Consultant: Wood, Patel&Associates, Inc.
2051 West Northern Avenue#100
Phoenix,Arizona 85021
Attn: Nicholas E. Brown, PE
or at such other address, and to the attention of such other person or officer, as any party may
designate in writing by notice duly given pursuant to this subsection. Notices shall be deemed
received (A) when delivered to the party, (B) three business days after being placed in the U.S.
Mail, properly addressed, with sufficient postage or (C) the following business day after being
given to a recognized overnight delivery service, with the person giving the notice paying all
required charges and instructing the delivery service to deliver on the following business day. If
a copy of a notice is also given to a party's counsel or other recipient, the provisions above
governing the date on which a notice is deemed to have been received by a party shall mean and
refer to the date on which the party, and not its counsel or other recipient to which a copy of the
notice may be sent, is deemed to have received the notice.
13.15 Confidentiality of Records. The Consultant shall establish and maintain
procedures and controls that are acceptable to the Town for the purpose of ensuring that
information contained in its records or obtained from the Town or from others in carrying out its
obligations under this Agreement shall not be used or disclosed by it, its agents, officers, or
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employees, except as required to perform Consultant's duties under this Agreement. Persons
requesting such information should be referred to the Town. Consultant also agrees that any
information pertaining to individual persons shall not be divulged other than to employees or
officers of Consultant as needed for the performance of duties under this Agreement.
13.16 Records and Audit Rights. To ensure that the Consultant and its
subcontractors are complying with the warranty under subsection 13.17 below, Consultant's and
its subcontractor's books, records, correspondence, accounting procedures and practices, and any
other supporting evidence relating to this Agreement, including the papers of any Consultant and
its subcontractors' employees who perform any work or services pursuant to this Agreement(all
of the foregoing hereinafter referred to as "Records"), shall be open to inspection and subject to
audit and/or reproduction during normal working hours by the Town, to the extent necessary to
adequately permit (A) evaluation and verification of any invoices, payments or claims based on
Consultant's and its subcontractors' actual costs (including direct and indirect costs and overhead
allocations) incurred, or units expended directly in the performance of work under this
Agreement and (B) evaluation of the Consultant's and its subcontractors' compliance with the
Arizona employer sanctions laws referenced in subsection 13.17 below. To the extent necessary
for the Town to audit Records as set forth in this subsection, Consultant and its subcontractors
hereby waive any rights to keep such Records confidential. For the purpose of evaluating or
verifying such actual or claimed costs or units expended, the Town shall have access to said
Records, even if located at its subcontractors' facilities, from the effective date of this Agreement
for the duration of the work and until three years after the date of final payment by the Town to
Consultant pursuant to this Agreement. Consultant and its subcontractors shall provide the Town
with adequate and appropriate workspace so that the Town can conduct audits in compliance
with the provisions of this subsection. The Town shall give Consultant or its subcontractors
reasonable advance notice of intended audits. Consultant shall require its subcontractors to
comply with the provisions of this subsection by insertion of the requirements hereof in any
subcontract pursuant to this Agreement.
13.17 E-verify Requirements. To the extent applicable under ARIZ. REV. STAT.
§ 41-4401, the Consultant and its subcontractors warrant compliance with all federal
immigration laws and regulations that relate to their employees and their compliance with the E-
verify requirements under ARIz. REV. STAT. § 23-214(A). Consultant's or its subcontractors'
failure to comply with such warranty shall be deemed a material breach of this Agreement and
may result in the termination of this Agreement by the Town.
13.18 Israel. 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," as that term is defined in
ARIz.REV. STAT. § 35-393, of Israel.
13.19 Conflicting Terms. In the event of any inconsistency, conflict or
ambiguity among the terms of this Agreement, the Proposal, any Town-approved invoices, and
the RFP,the documents shall govern in the order listed herein.
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13.20 Non-Exclusive Contract. This Agreement is entered into with the
understanding and agreement that it is for the sole convenience of the Town. The Town reserves
the right to obtain like goods and services from another source when necessary.
[SIGNATURES APPEAR ON FOLLOWING PAGES]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
and year first set forth above.
"Town"
TOWN OF FOUNTAIN HILLS,
an Arizona municipal corporation
o.a
a
''''e.',4 LZD i. . \„,;itA* ,,,,
oetges
Grady E. Mille o Manager
ATTEST:
-7-X-- 3,61-0 iO________
lizabeth , urke, Town Clerk
APP ED AS TO FORM:
L --.—'----6'0 . - ,,)
Aaron D. Arnson,Town Attorney
(ACKNOWLEDGMENT)
STATE OF ARIZONA )
)ss.
COUNTY OF MARICOPA )
On tnake,k I to ---, 2020, before me personally appeared Grady E. Miller, the
Town Manager of the TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation,whose
identity was proven to me on the basis of satisfactory evidence to be the person who he claims to
be,and acknowledged that he signed the above document,on behalf of the Town of Fountain Hills.
�'�'-.0 RHONDAM.BREMNEI111Wi4)(CYn. g/��1�'��'t/I'lU/i►
� Nary P�pc•State aNiaona `'� '�'v
Fk; MARICOPA COUNTY
ti
.. Commission r 6i931e NotaryPublic
Expiros June 30,2023
(Affix notary seal here)
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
"Consultant"
WOOD, PATEL&ASSOCIATES, INC.
a(n)Arizona corporation
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Title: ViCe PZ5./i7F/V7---
(ACKNOWLEDGMENT)
STATE OF ARIZONA )
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COUNTY OF MARICOPA )
On /14 -u, 5" , 2020, before me personally appeared
, the yl`u, P,,,4 ,, i- of WOOD, PATEL & ASSOCIATES,
INC., a(n) Arizona corporation, whose identity was proven to me on the basis of satisfactory
evidence to be the Uhc p,�c, l�..r of the corporation.
r"r r•. JULANNE DAVIS
fr. Notary Public•Arizona
+�� Ataricopa County
a� Commission k 55273 Notary ublic
"' My Comm.Expires Sep 9,2022
(Affix notary seal here)
4832-5568-0182 v.2
14
EXHIBIT A
TO
PROFESSIONAL SERVICES AGREEMENT
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
WOOD, PATEL & ASSOCIATES, INC.
[Consultant's Proposal]
See following pages.
WOOD
PATEL
February 21, 2020
Mr. Justin T.Weldy
2051 W Northern Ave#100 Public Works Director
Phoenix AZ 85021 Town of Fountain Hills
P:602.335.8500 16705 East Avenue of the Fountains
F:602 Fountain Hills, AZ 85268
www.woodpatel.com patel.
480.816.5133
Darrel E.Wood,PE,RLS jweldy@fh.az.gov
Ashok C.Patel,PE,RLS,CFM
Michael T.Young,PE,LEED AP Re: Panorama Drive Storm Drain Pipe Replacement
James S.Campbell,PE,LEED GA Fountain Hills, Arizona
Thomas R.Gettings,RLS
Darin L.Moore,PE,LEED GA Professional Civil Engineering Services
Jeffrey R.Minch,PE,CFM
Robert D.Gofonia,PE,RLS Dear Mr. Weldy:
Nicholas E.Brown,PE
John M.Bulka,PE
Daniel J.Cronin,PMP,LEED AP,CDT Thank you for inviting Wood, Patel & Associates, Inc. (WOODPATEL) to submit this
James G.Taillon,CFM Professional Civil Engineering Services Agreement to the Town of Fountain Hills for
Daniel W Matthews,PE Panorama Drive Storm Drain Replacement. WOODPATEL has a longhistoryof
Joseph C.Daconta,PE,CFM,PH p
Ethan A.Boyle,PE providing services to agencies and developers in the area. WOODPATEL will focus this
Ronald F.Martinez,PE experience to bring value to this work task. We are excited about the opportunity to work
Gabriel S.Rios,RLS with the Town of Fountain Hills on this project and look forward to continuing to provide
Frank M.Koo,PE
John G.Ritchie,PE the Town with quality and timely professional services.
Derek C.Nichols,PE
Steven C.McKee,PE WOODPATEL understands that the project consists of two phases of design and
Craig S.Bole,PE,ENV SP construction. Phase one includes the Panorama Drive storm drain removal and
Robert W.Dalton,PE
Brian J.Diehl,RLS replacement. The phase one project is located on Panorama Drive east of Saguaro
Ryan Hall,PE Boulevard and includes the removal of approximately 3,000 feet of existing 48" diameter
Dennis Harmon,RLS asphalt coated double walled CMP pipe and replacement with 48" diameter cast-in-place
Anthony
cD.Shche,PE concrete pipe (CIPP) in approximately the same alignment and elevation. Phase two
Eric D.Shawd,PE P P PP Y 9
includes the Panorama Drive outlet channel reconstruction and nuisance water pump
replacement. The phase two project is located on Panorama Drive approximately 4,000
feet east of Saguaro Boulevard and includes channel design to minimize erosion from the
storm drain outlet south approximately 600 feet. Phase two also includes nuisance water
pump replacement with a submersible push pump type with modified/upgraded electrical
connection and controls.
Below is our scope of services and fee summary for professional civil engineering
services based on our understanding of the project. These items follow the scope items
determined from our December 16, 2019 meeting with the Town of Fountain Hills Public
Works Department.
Page 1 of 9
SCOPE OF SERVICES
Panorama Drive Storm Drain Removal & Replacement (Phase 1)
1. Topographic Survey
WOODPATEL will collect topographic field survey information based on an approved agency datum. The
Topographic Survey will provide elevation and location data of relevant physical features and adjacent
improvements necessary for the design of the project. The survey area includes the north half street
(approximately 60 feet width, 3,000 feet length) of Panorama Drive and Panorama storm drain corridor east of
Saguaro Boulevard to the storm drain outlet.
2. Soil Borings and Geotechnical Report(Sub-Consultant Services)
WOODPATEL will utilize a sub-consultant to provide the soil borings and geotechnical services. A geotechnical
subsurface exploration will be performed in order to provide recommendations for CIPCP design. A report
summarizing these findings will be prepared for the Client's use, sealed by a Professional Licensed Engineer.
Fees for the sawcut and removal the existing pavement at the exploration locations is not included in this
service.
Specific tasks include the following:
A. Four(4)soil borings to a depth of fifteen (15)feet.
B. Representative soil samples will be obtained at approximately 800 feet intervals thereafter to the
specified depth using a split spoon sampler and the standard penetration procedures.
3. Cast-In-Place Concrete Pipe Design (Sub-Consultant Services)
WOODPATEL will utilize a sub-consultant to provide these services. CIPP design will be provided for the
replacement 48" diameter storm drain conduit with an assumed depth to invert of approximately eight(8)feet. It
is assumed the existing soils are acceptable for CIPP capable of being neatly excavated with vertical sides and
a semi-circular bottom.The above Geotechnical Report will be utilized for this CIPP design service.
An additional alternative of an alternative pipe material will be included for bidding purposes.
4. Paving &Storm Drain Plan & Profile and Specifications
WOODPATEL will prepare an Offsite/Public Paving and Storm Drain Plan & Profile in accordance with the
Town of Fountain Hills standards for 3,000 feet of 48 inch diameter CIPP and miscellaneous pavement repair.
The plan and profile will be prepared at a scale of 1"=20'. The plan will be based on agency direction and CIPP
design, with an additional alternative of alternative pipe material for bidding purposes, and will also include
catch basins, manholes, side inlets, trash racks and storm drains for nuisance water capture and conveyance.
Wet and dry utility crossing identification will be included based on agency and dry utility company provided
information. The plan will include the removal and replacement of gate sensor loops, pavement, curb and
gutter, sidewalk and landscaping removal and replacement (in kind). Technical specifications and an
Engineer's Opinion of Probable Costs will be included to support the civil engineering design work product. The
plan will include approximate quantities necessary for bidding and permitting purposes. Federal permitting,
Flood Insurance Program involvement and environmental services are not anticipated nor included for this
project. Landscaping architecture and irrigation design is not included.
5. Subsurface Utility Investigation (Sub-Consultant Services)
WOODPATEL will utilize a Utility Locating Service company to provide a vacuum truck to excavate potholes to
determine horizontal and vertical data regarding existing utilities near and around the proposed storm drain
alignment for design purposes. We have budgeted five (5) potholes. This information will be used to coordinate
storm drain design with the existing utilities.
WOODPATEL February 21,2020
Panorama Drive Storm Drain Pipe Replacement Page 2 of 9
6. Construction Management/Observation
WOODPATEL will observe construction of the proposed improvements according to the approved plan and
technical specifications. We will attend the pre-construction and final walk-through meetings, provide periodic
construction observations, based on contractor's progress and prepare a written summary of each site visit. As
completion of construction, we will review the storm drain as-built plan set for compliance with design standards
and related to any field changes made by the contractor during construction. WOODPATEL will notify the Client
of work not constructed in compliance with the required design standards. Work not constructed within agency
established tolerances will need to be resolved with the Client, and appropriate measures taken to comply.
Assumed construction time of 20 days.
7. As-built Survey and Record Drawing
Upon completion of construction of the project, WOODPATEL will prepare an As-Built Plan (Record Drawings)
for the project based on as-built data gathered by WOODPATEL surveyors including the specified construction
and installation on the approved Offsite/Public Paving and Storm Drain Plan. Copies (hard copy and electronic
file) of the record drawings will be submitted to the agency.
8. Design Services Allowance
Additional services other than those specified in this document may be required due to unforeseen conditions.
This allowance will allow WOODPATEL to respond and provide additional services without the execution of
additional contract documents. This is a general design services allowance and all tasks completed and
services provided under this allowance shall be identified and authorized by the Client in advance of services
performed. Allowances will be used only after requesting and receiving authorization from the Client.
Panorama Drive Outlet Channel & Nuisance Water Pump (Phase 2)
1. •pographic Survey
W•-'',PATEL will collect topographic field survey information based on an approved agency datum. T.
Topogr., is Survey will provide elevation and location data of relevant physical features and a... ent
improveme necessary for the design of the project. The survey area includes the north f street
(approximately 4 l feet width, 700 feet length) of Panorama Drive storm drain outlet channel cor '.or.
2. Soil Borings, Soil Ce - it Design and Geotechnical Report(Sub-Consultant Servi
WOODPATEL will utilize a .•-consultant to provide the soil borings and geotechni services. A geotechnical
subsurface exploration will be p--.rmed in order to provide recommendations - Soil Cement Slope Design. .
A report summarizing these finding 4 ill be prepared for the Client's use -aled by a Professional Licensed
Engineer. Specific tasks include the folio' g:
A. One (1) soil borings to a depth of fifteen • feet.
B. Representative soil samples will be obtain.• at ..proximately 800 feet intervals thereafter to the
specified depth using a split spoon sampler an. - standard penetration procedures
3. Pump Design (Sub-Consultant Services)
WOODPATEL will utilize a sub-consultan • provide the nuisance . -r pump, controls, and electrical service
design. Permit application preparatio., if any, including MCESD, AD or other agency is assumed to be
completed by the Client and is no cluded.
4. Channel Grading Plan : 'rofile and Specifications
WOODPATEL will pr-.are an Offsite/Public Grading Plan & Profile in accordance with - Town of Fountain
Hills standards f. •00 feet of channel outlet design. The plan and profile will be prepared at . cale of 1"=20'.
The design include permeable material, but suitable for cleanout of debris and sediment, e : ion control
material or channel bottom and/or banks (if/where needed) and nuisance water pump loc. ..n and
con - ion. Technical specifications will be included to support the civil engineering design work pr.. ct,
uding soil cement stabilization based on Geotechnical Report recommendations.
WOODPATEL February 21,2020
Panorama Drive Storm Drain Pipe Replacement Page 3 of 9
5. ►•nstruction Management/Observation
W• IPATEL will observe construction of the proposed improvements according to the approve. elan and
technic. specifications. We will attend the pre-construction and final walk-through meetings, pr• ide periodic
constructio observations, based on contractor's progress and prepare a written summary of -:ch site visit. As
completion of • struction, we will review the storm drain as-built plan set for compliance ' design standards
and related to an 'eld changes made by the contractor during construction. WOODP L will notify the Client
of work not construc •• in compliance with the required design standards. Work n• onstructed within agency
established tolerances eed to be resolved with the Client, and appropriate ► -asures taken to comply.
6. As-built Survey and Record I .wing
Upon completion of construction o se project, WOODPATEL will pre•-re an As-Built Plan (Record Drawings)
for the project based on as-built data •: hered by WOODPATEL s eyors including the specified construction
and installation on the approved Offsite • blic Grading Plan opies (hard copy and electronic file) of the
record drawings will be submitted to the agen
7. Design Services Allowance
Additional services other than those specified in • do. ment may be required due to unforeseen conditions.
This allowance will allow WOODPATEL to r--.ond and • •vide additional services without the execution of
additional contract documents. This is a .eneral design se •ces allowance and all tasks completed and
services provided under this allowance . all be identified and au .rized by the Client in advance of services
performed. Allowances will be used ► y after requesting and receivin• -uthorization from the Client.
EXCLUSIONS
• The project is a re -oval and replacement matching existing pipe diameter, a hydrolog" .nd hydraulic analysis
is not included.
• Utility confli elocation design
• Structur. engineering/design
• Envirs mental permitting services and cultural resources services
• : struction traffic control design
• andscape architecture and irrigation design
WOODPATEL February21,2020
Panorama Drive Storm Drain Pipe Replacement Page 4 of 9
FEES
Panorama Drive Storm Drain Removal & Replacement (Phase 1)
1. Topographic Survey $6,670
2. Soil Borings and Geotechnical Report(Sub-Consultant Services) $14,850
3. Cast-In-Place Concrete Pipe Design (Sub-Consultant Services) $5,750
4. Paving &Storm Drain Plan &Profile and Specifications $41,400
5. Subsurface Utility Investigation (Sub-Consultant Services) $4,600
6. Construction Observation $12,145
7. As-built Survey and Record Drawing $7,890
8. Design Services Allowance $5,000
Subtotal $98,305
- • ama Drive Outlet Channel & Nuisance Water Pump (Phase 2)
1. Topographic $5,150
2. Soil Borings, Soil Ceme '- iin and Geotechnical Report(Sub-Consulta. -- vices.). $5,650
3. Pump Design (Sub-Consultant - ' -s) $16,100
4. Channel Grading Plan &Profile and Spe 'ons $27,650
5. Construction Observation .... $12,145
6. As-built Survey and Record Drawing . $6,075
7. Design Services Allowance.. $5,000
Subtotal $77,770
TOTAL $ 1
RETAINER
A $0 retainer is required to begin the professional services outlined above. This retainer will be applied to the final
project invoice per industry standard.
WOODPATEL February 21,2020
Panorama Drive Storm Drain Pipe Replacement Page 5 of 9
TERMS OF AGREEMENT
1. Wood, Patel & Associates, Inc. is referred to as Consultant, within this Agreement. Consultant makes no representation or warranty
concerning the estimated quantities and cost estimates provided in connection with maps, plans, reports, specifications, drawings, or
submittals other than that all such amounts are good faith estimates and professional opinions only. Since Consultant has no control over
market conditions, bidding procedures, or the efficiency of any contractor's means and methods of construction, the Consultant cannot
warrant that bids,final quantities,or ultimate construction costs will not vary from these good faith estimates.
2. Consultant makes no representations concerning soil or environmental conditions and is not responsible for any liability that may arise out of
the making or failure to make soil or environmental surveys,sub-surface tests,or general testing.
3. In the event that any changes are made in the plans and specifications by the Client or persons other than the Consultant,or the improvements
and mitigation measures are not constructed as required in Consultant's plans and specifications, any and all liability arising out of such
unauthorized changes or deviation is waived as against the Consultant and its subconsultants(if any). Client assumes full responsibility for
such changes or deviations unless Client has given Consultant prior notice and has received from Consultant written consent for such
changes ordeviations.
4. The Consultant is not responsible,and liability is waived by the Client as against Consultant,for use by Client or any other person of any plans
or drawings not signed and sealed by Consultant as final and ready for bidding or construction. Plans, reports, drawings, or specifications
marked"Preliminary"or"Not For Construction",or otherwise marked to indicate they are not final,may not be used for estimating, bidding,or
construction without Consultant's advance written authorization.
5. Client and Consultant have agreed,to the fullest extent permitted by law and notwithstanding any other term or condition of this Agreement,
to allocate the risks of this Project such that the total liability of Consultant, its subconsultants, and their respective officers, directors,
shareholders, designated principals, agents, representatives, and insurers, or any of them, in the aggregate to Client(or anyone claiming
through or on behalf of Client)for any and all claims(including,without limitation,claims expenses such as attorneys'fees,expert fees,and
court costs), losses, costs,or damages of any nature whatsoever,whether presently known or unknown, liquidated or contingent, resulting
from or in any way related to or arising from the project,this Agreement,or any other cause or causes shall not exceed$50,000 or fee paid
under this Agreement. Consultant and Client intend that this risk allocation shall apply to any and all liability or cause of action against
Consultant,however alleged or arising, unless otherwise prohibited by law. Should Client not pay Consultant in full for all services rendered
in accordance with this Agreement,Client waives and releases Consultant from any and all liability.
6. Notwithstanding any other provision of this Agreement,and to the fullest extent permitted by law, Client and Consultant,and their respective
officers,directors, partners, employees, members, contractors,or subconsultants shall not be liable to the other,or make any claim for,any
incidental, indirect,consequential,or punitive damages arising out of or connected in any way with this Agreement,or the project or services
that is the subject of this Agreement. This mutual waiver of consequential damages shall include, but is not limited to, loss of use, loss of
profit, loss of business, loss of income, damage to or loss of reputation, and any other consequential damages that either party may have
incurred from any cause of action including,without limitation thereby,breach of contract,intentional misconduct,negligence,strict liability,or
express or implied warranty.
7. All fees and other charges will be billed monthly and shall be due at the time of billing unless otherwise noted in this Agreement.
8. A late payment FINANCE CHARGE computed at the periodic rate of 1.00%per month,which is an ANNUAL PERCENTAGE RATE of 12%,
shall be added to any unpaid balance due Consultant under this Agreement commencing 30 days after the date of the original invoice. Should
legal action be necessary to enforce the provisions of this Agreement,the Client agrees to pay all attorneys'fees and court costs incurred in
the prosecution thereof.Client's failure or refusal to timely pay any compensation due Consultant under this Agreement shall be considered
substantial non-performance of the Agreement by Client and good cause for Consultant to suspend or terminate this Agreement at its sole
option.
9. Client understands that jurisdictional authorities,public or private utilities,or other third parties exercising inspection or oversight powers with
respect the project that is the subject of this Agreement, Consultant's professional documents or self-certifications, any permit for
construction, or other applicable law, regulation, policy, guidelines,or interpretations may cause a need for additional office or field work to
implement the lawful decision or direction of such reviewing authorities. Client shall pay Consultant for the additional services required to
comply with or implement the decisions,interpretations,or direction of reviewing authorities according to the terms and fee schedules in effect
at the time such services are performed.
10. Client shall pay the costs of plan checking and inspection fees,zoning and annexation application fees,assessment fees,soils engineering
fees, soils testing fees, aerial topography fees and all other fees, permits, bond premiums, title company charges, blueprints and
reproductions,and all other charges not specifically covered by the terms of this Agreement.
11. In the event all or any portion of the work prepared or partially prepared by the Consultant is suspended,abandoned,or terminated,the Client
shall pay the Consultant for all fees, charges, and services provided pursuant to this Agreement, not to exceed any contract limit specified
herein. A restart fee equivalent to twenty(20)percent of the base fee payable to Consultant under this Agreement will be charged if the
Project or work of this Agreement is placed on hold.All studies, reports, plans,specifications,certifications or other professional documents
generated by Consultant (collectively "instruments of service") for this Agreement remain Consultant's property and Consultant shall be
deemed their author and sole owner. Consultant shall retain all copyrights, common law, statutory and other ownership rights to its
instruments of service. Upon paying in full for Consultant's services, Client shall obtain a limited, non-exclusive license to use Consultant's
instruments of service for purposes of this project only.Client acquires no ownership rights to Consultant's instruments of service by virtue of
this Agreement, and it may not use Consultant's instruments of service, or any aspect, element, or derivative work based on them for any
other purpose. Nor does Client have any right to further assign, delegate, pledge or transfer the limited license created by this Agreement
without the express written permission of Consultant,which Consultant may withhold in its sole discretion.Client may,consistent with the terms
and conditions of this Agreement, reproduce Consultant's instruments of service, or portions or derivative works based thereon, to satisfy
regulatory requirements of any authority having jurisdiction over the project, or for the use of any consultant, contractor, subcontractor, or
supplier to Client executing the work described in Consultant's instruments of service. Consultant's instruments of service may not be used
for any future addition to or alteration of the project without Consultant's express written permission.
WOODPATEL February 21,2020
Panorama Drive Storm Drain Pipe Replacement Page 6 of 9
12. Construction staking fees are for setting one(1)set of stakes only for each item listed.Client and its contractors are responsible for protecting
these stakes. Any restaking or staking of items not listed or replacement of control stakes or pins necessary to stake the item of work called for
shall be performed on an hourly basis as additional services. If expedited construction staking is required to replace such stakes or pins that
have been damaged,out of the control of the Consultant,the expedited services may be billed at a premium rate.
13. Printing or plotting of drawings,delivery charges,and postage,as well as review fees,shall be billed as a reimbursable expense at Consultant's
cost plus ten(10)percent.
14. Revisions,alterations,or change orders requested by the Client shall be deemed extra work. Consultant will prepare an Additional Services
Agreement to be approved by the Client which details the scope and fee.Client must authorize Additional Services Agreement prior to work
commencing. In the event it is not feasible to prepare an Additional Services Agreement Client agrees to pay Consultant hourly. Consultant
fees will be charged per the fee schedule in effect at the time such revisions are requested.
15. This proposal is valid for thirty (30) days from the date of preparation. The laws of the state of Arizona, without regard to choice of law
principles,shall govem the interpretation and enforcement of this Agreement and any claim or cause of action for breach of this Agreement.
The prevailing party in any litigation or arbitration arising from or relating to this Agreement,as determined by the court or arbitrator deciding the
dispute,shall be entitled to recover from the non-prevailing party a reasonable sum in compensation of its attorneys'fees and costs incurred.
16. Neither party to this Agreement will hire or make an offer of employment to an employee of the other party,without prior written consent of the
other party.
17. Client agrees, to the fullest extent permitted by law, to indemnify and hold harmless the Consultant, its officers, directors, employees and
subconsultants(collectively, Consultant)from and against all losses, damages, liabilities or costs, including reasonable attorneys'fees and
defense costs, to the extent caused by the negligent acts, errors or omissions of Client or Client's separate contractors, subcontractors,
consultants,or anyone for whom Client is legally responsible in connection with the Project.
18. By signing this Agreement, Client's representative represents that he or she has the legal right, power and authority to enter into this
Agreement,and to direct Consultant to study the Project,prepare plans for Project,and enter the Project site.
19. Except as to those persons or parties expressly named in this Agreement, nothing contained in this Agreement shall confer third party
beneficiary status upon or create a contractual relationship with,right to reliance,or cause of action in favor of any third party against either the
Client or the Consultant.Consultant's services under this Agreement are performed solely for Client's benefit,and no other party or entity shall
have any claim against the Consultant because of this Agreement or the performance or nonperformance of services hereunder. Client and
Consultant agree to include a similar disclaimer of third party beneficiaries in all contracts with their respective contractors, subcontractors,
subconsultants,vendors,and other entities involved in this Project to fulfill the intent of this provision.
20. Client agrees,in any construction contracts and subcontracts awarded in connection with this Project,to require all contractors or vendors of
any tier to carry statutory Workers Compensation, Employers Liability Insurance and limits of Commercial General Liability Insurance(CGL)
that are no less than the limits of insurance required of Consultant. Client further agrees to require all contractors to have their CGL policies
endorsed to name the Client, the Consultant and Consultant's subconsultants as Additional Insureds, and to provide Contractual Liability
coverage sufficient to insure the hold harmless and indemnity obligations assumed by the contractors. Client shall require all contractors to
furnish to Client and Consultant certificates of insurance as evidence of the required insurance prior to commencing work and upon renewal
or replacement of each policy in effect during the entire period of construction. In addition,Client shall require that all contractors shall,to the
fullest extent permitted by law, indemnify and hold harmless Client, Consultant and its subconsultants from and against any damages,
liabilities or costs, including reasonable attorneys'fees and defense costs, arising out of or in any way connected with any contractor's or
subcontractor's negligent or willful acts, errors or omissions in connection with the project or work that is the subject of this Agreement,
including without limitation all claims by employees of the contractors.
21. Applicable to Apartment Community proiects only: The Project depicted in Consultant's plans, drawings and specifications has been
specifically designed for Client as an apartment community where individual units are leased or rented to their occupants. This Project has not
been designed with the intent that ownership of individual units shall be sold or transferred to individual owners. Design standards and criteria
for apartment communities may vary significantly from those applicable to time share or condominium communities where individual units are
sold to occupants. Therefore Consultant assumes no liability to any Client, developer, builder, lender, investor, community or homeowners'
association,or to any subsequent owner or occupant of this Project,or anyone asserting a claim by or through them,for repair,replacement,
diminished useful life, reduced performance or diminution of property value, in the event this Project is subsequently converted from an
apartment community to a time share or condominium community where units are individually owned. This variance in design standards and
criteria may adversely affect the use,performance or property values for individual owners in time share or condominium communities.
22. Applicable to Apartment Community projects only: Client does not now foresee that this Project will be converted into condominiums,time
shares,or any other use for which ownership of individual units shall be sold or transferred to individual owners. Because Consultant did not
design this Project for condominium ownership, time share, or other use in which ownership of individual units is sold or transferred to
individual owners, Client agrees that, if Client converts the Project to such use or ownership, Client shall,to the fullest extent permitted by
law,indemnify and hold harmless Consultant and Consultant's officers,directors,shareholders,employees and sub consultants from any and
all claims, losses, damages and costs, including reasonable attorneys' fees and defense costs, arising or allegedly arising in any manner
whatsoever from conversion of the Project to condominium,time share,or other use where ownership of individual units is sold or transferred
to individual owners.
23. Applicable to Condominium projects only: Client agrees to include in the Covenants, Conditions and Restrictions or equivalent documents
(collectively"CC&R's)recorded on the Project, and in the by-laws of any Homeowners or Community Association("Association")established
for this Project, a requirement that the Association shall perform all inspections and preventive maintenance recommended in the
Maintenance Manual or necessary to properly maintain the infrastructure and facilities to perform as designed. Furthermore,Client agrees to
establish and notify the Association and its members or owners at or before the time units are sold to members or owners of the reasonably-
anticipated reserves needed for such inspections and preventive maintenance. Client shall also cause the CC&R's for the Project and the
Association by-laws to contain an appropriate waiver of liability and indemnity, in a form mutually approved by Client and Consultant, if the
Maintenance Manual recommendations for inspections and preventive maintenance are notperformed.
24. Neither this Agreement,nor any claim or cause of action arising from or relating to this Agreement,its interpretation,enforcement,or breach,
WOODPATEL February 21,2020
Panorama Drive Storm Drain Pipe Replacement Page 7 of 9
shall be assignable by either Client or Consultant,and any attempted assignment shall be void.
25. Notwithstanding any other term or condition of this Agreement to the contrary, all claims or legal actions by either party against the other
arising out of or in any way connected with this Agreement or the services performed by Consultant or its subconsultants hereunder shall be
barred, and under no circumstances shall any such legal action be initiated by either party after two (2) years from the completion of
Consultant's services pursuant to this Agreement,as determined by the final invoice for Consultant's services,unless this Agreement shall be
terminated earlier by either party, in which case,the date of termination shall be the date from which the time to commence legal action shall
commence.
26. If any term or provision of this Agreement is declared invalid or unenforceable by a court of competent jurisdiction, such determination shall
apply only to the term or provision so affected, and the remainder of this Agreement shall be fully enforceable and effective as originally
agreed. Notwithstanding the completion or termination of this Agreement for any reason,all rights,duties and obligations of the parties to this
Agreement shall survive and remain in full force and effect until discharged by performance or operation of law.
WOODPATEL February 21,2020
Panorama Drive Storm Drain Pipe Replacement Page 8 of 9
WOODPATEL is pleased to offer this agreement to the Town of Fountain Hills. If this agreement meets with your
approval, please indicate by signing below and returning one copy to us.
Sincerely,
Wood, Patel&Associates, Inc.
Nicholas E. Brown, PE
Vice President
NEB/Ip
Y:\WP\Proposals\Municipal Dept\Panorama Drive Storm Drain Pipe Replacement Scope Town of Fountain Fills J Weldy 02-21-20.docx
AUTHORIZATION & ACCEPTANCE FOR PROFESSIONAL SERVICES
Accepted for
(Organization Responsible for Payment)
Accepted by
(Name and Title)
Signature Date
WOODPATEL February 21,2020
Panorama Drive Storm Drain Pipe Replacement Page 9 of 9