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HomeMy WebLinkAboutC2024-008 - Fountain Hills ElksContract No. 2024-008 PROFESSIONAL SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND FOUNTAIN HILLS ELKS #2486 THIS PROFESSIONAL SERVICES AGREEMENT (this “Agreement”) is entered into upon execution, between the Town of Fountain Hills, an Arizona municipal corporation (the “Town”) and Fountain Hills Elks #2486, a non-profit fraternal organization (the “Elks” or “Contractor” or “Vendor”). RECITALS A.WHEREAS, Fountain Hills Elks #2486 is a non-profit fraternal organization with access to a pool of volunteers; and B.WHEREAS, Fountain Hills Elks #2486 will hold a liquor license for the sale of alcoholic beverages, namely beer, for the Town of Fountain Hill’s annual St. Patrick’s Day Festival (“Festival”); and C. WHEREAS, the Town desires to enter into an Agreement with Fountain Hills Elks #2486 to perform the services described in Exhibit A attached hereto in exchange for remuneration as set forth in this Agreement to further the charitable purposes of Fountain Hills Elks #2486 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 Fountain Hills Elks #2486 hereby agree as follows: 1.Term of Agreement. This Agreement shall be effective as of the date of execution and shall remain in full force and effect until June 30, 2025. 2.Scope of Work. Fountain Hills Elks #2486 shall provide the Services as set forth in the Proposal attached hereto as Exhibit A and incorporated herein by reference. 3.Compensation. In exchange for providing the Services, Fountain Hills Elks #2486 shall receive 30% of the net revenue from beer sale proceeds. 4.Payments. Payment shall be made in a single installment by check made out to “Fountain Hills Elks #2486”, within sixty (60) days following the conclusion of the Festival. Payment shall be accompanied by an accounting of the proceeds. 5.Indemnification. To the fullest extent permitted by law, the Fountain Hills Elks #2486 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 Fountain Hills Elks #2486, its officers, employees, agents, or any tier of subcontractor in the performance of this Agreement. 6.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 Fountain Hills Elks #2486 to any other party of this Agreement with respect to the subject matter of this Agreement. 7.Gratuities. The Town may, by written notice to the Fountain Hills Elks #2486, 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 Fountain Hills Elks #2486 or any agent or representative of the Fountain Hills Elks #2486 to any officer, agent or employee of the Town for the purpose of securing this Agreement. 8.Miscellaneous. 8.1 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 or agent of the other for any purpose whatsoever. The Fountain Hills Elks #2486 acknowledges and agrees that the Services provided under this Agreement are being provided as an independent contractor, not as an employee or agent of the Town. Fountain Hills Elks #2486, 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 Fountain Hills Elks #2486, its employees or subcontractors. The Fountain Hills Elks #2486, and not the Town, shall determine the time of its performance of the services provided under this Agreement so long as Fountain Hills Elks #2486meets the requirements as agreed in Section 2 above and in Exhibit A. Fountain Hills Elks #2486is neither prohibited from entering into other contracts nor prohibited from practicing its profession elsewhere. Town and Fountain Hills Elks #2486 do not intend to nor will they combine business operations under this Agreement. 8.2 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. 8.3 Laws and Regulations. Fountain Hills Elks #2486 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 Fountain Hills Elks #2486 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. 8.4 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 Fountain Hills Elks #2486. 8.5 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. 8.6 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 affect any other provision or application of this Agreement which may remain in effect without the invalid provision or application. 8.7 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. 8.8 Assignment; Delegation. No right or interest in this Agreement shall be assigned or delegated by Fountain Hills Elks #2486 without prior, written permission of the Town, signed by the Town Manager. Any attempted assignment or delegation by Fountain Hills Elks #2486 in violation of this provision shall be a breach of this Agreement by Fountain Hills Elks #2486. 8.9 Subcontracts. No subcontract shall be entered into by the Fountain Hills Elks #2486 with any other party to furnish any of the material or services specified herein without the prior written approval of the Town. The Fountain Hills Elks #2486 is responsible for performance under this Agreement whether or not subcontractors are used. Failure to pay subcontractors timely manner pursuant to any subcontract shall be a material breach of this Fountain Hills Elks #2486. 8.10 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 Fountain Hills Elks #2486 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. 8.11 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. 13.14 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: Town of Fountain Hills 16705 East Avenue of the Fountains Fountain Hills, Arizona 85268 Attn: Aaron D. Arnson, Town Attorney If to Fountain Hills Elks #2486: Fountain Hills Elks #2486 16766 Parkview Ave #103 Fountain Hills, Arizona 85268 Attn: Judi Beishel 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. 13.17 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). Fountain Hills Elks #2486 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 China. Pursuant to and in compliance with A.R.S. § 35-394, Vendor hereby agrees and certifies that it does not currently, and agrees for the duration of this Agreement that Vendor will not, use: (1) the forced labor of ethnic Uyghurs in the People’s Republic of China; (2) any goods or services produced by the forced labor of ethnic Uyghurs in the People’s Republic of China; or (3) any contractors, subcontractors or suppliers that use the forced labor or any goods or services produced by the forced labor of ethnic Uyghurs in the People’s Republic of China. Vendor also hereby agrees to indemnify and hold harmless the Town, its officials, employees, and agents from any claims or causes of action relating to the Town’s action based upon reliance upon this representation, including the payment of all costs and attorney fees incurred by the Town in defending such as action. 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] 7 ATTESTED TO: _______________________________ Linda G. Mendenhall, Town Clerk APPROVED AS TO FORM: ________________________________ Aaron D. Arnson, Town Attorney “Town” TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation FOR THE TOWN OF FOUNTAIN HILLS: ____________________________________ Rachael Goodwin, Interim Town Manager FOR THE CONTRACTOR: By: Name Title: ______________________________ Judith S Beischel (Jul 20, 2023 12:10 PDT) Judith S Beischel Judith S Beischel Elks Lodge #2846 Exalted Ruler Rachael Goodwin (Jul 31, 2023 17:30 PDT) Rachael Goodwin EXHIBIT A TO PROFESSIONAL SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND FOUNTAIN HILLS ELKS #2486 [Scope of Work/Roles & Responsibilities] See following pages. EXHIBIT A Fountain Hills Elks shall: 1. Obtain an appropriate liquor license for the service/sale of liquor at the Festival consistent with applicable laws and regulations 2. Provide for volunteer staffing to facilitate the service/sale of alcoholic beverages for the duration of the Festival or as otherwise agreed to by the Parties. 3. Serve all alcoholic beverages for the duration of the Festival or as agreed to by the Parties. 4. Implement and follow best business practices to manage the service of alcoholic beverages consistent with all applicable laws and regulations. 5. Take and accept all alcohol sales and return all tickets for alcohol sales to the Town designated employee. The Town shall: 1. Accept and account for all tickets exchanged for alcoholic beverages at the Festival 2. Provide Elks 30% of the gross profit (total sales less alcohol cost) from alcohol sales within sixty (60) days. 3. Pay applicable taxes (e.g. Transaction Privilege Tax or “TPT”) and remit those funds accordingly