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HomeMy WebLinkAboutC2024-036 Harrington Planning Design - signed1 Contract No. 2024-036 PROFESSIONAL SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND HARRINGTON PLANNING & DESIGN, LLC THIS PROFESSIONAL SERVICES AGREEMENT (this “Agreement”) is entered into upon execution, between the Town of Fountain Hills, an Arizona municipal corporation (the “Town”) and Harrington Planning & Design, LLC, a(n) Arizona limited liability company (the “Consultant”). RECITALS A. The Consultant possesses the specific skill and experience required to provide the Town with engineering design services related to Fountain Hills Boulevard & Shea Boulevard Turf Transition Improvements Project (the “Services”). B. 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 execution and attested by the Town Clerk pursuant to Section 3-3-31 of the Town Code, and shall remain in full force and effect until December 31, 2024 (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 four 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 to herein as the “Term.” Upon renewal, the terms and conditions of this Agreement shall remain in full force and effect. 2 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 $27,650 (including all renewals), at the rates set forth in Exhibit A. The aggregate amount per renewal term shall not exceed $50,000 in any case unless the Agreement is affirmed and ratified via an executed amendment. All remaining terms and conditions of the Agreement shall remain in full force and effect. 4. Payments. The Town shall pay the Vendor monthly (and the Vendor shall invoice the Town 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 ordinarily used by members of the same profession practicing under similar circumstances at the same time and in the same locality. 3 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. 4 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 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 prior to the expiration date. All 5 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, including but not limited to, separation of insured’s clause. To the fullest extent allowed by law, for 6 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 by the Town. Upon termination for convenience, Consultant shall be paid for all undisputed services performed to the termination date. 7 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 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 8 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 or agent of the other for any purpose whatsoever. The Consultant 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. 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 affect any other provision or application of this Agreement which may remain in effect without the invalid provision or application. 9 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. 10 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: Rachael Goodwin, 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 Consultant: Harrington Planning & Desing, LLC 4711 E. Falcon Dr., Suite 222 Mesa, Arizona 85215 Attn: Jason Harrington 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 11 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 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 12 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 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. 13.21 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, Town Manager FOR THE CONTRACTOR: By: Name Title: ______________________________ Jason Harrington (Feb 26, 2024 08:17 MST) Jason Harrington Jason Harrington Principal Aaron Arnson (Feb 27, 2024 20:15 MST) Aaron Arnson Rachael Goodwin (Feb 28, 2024 07:36 MST) Rachael Goodwin EXHIBIT A TO PROFESSIONAL SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND HARRINGTON PLANNING & DESIGN, LLC [Scope and Fee Schedule] See following pages. Harrington Planning + Design 4711 E. Falcon Drive, Suite 222, Mesa, Arizona 85215 www.HarringtonPlanningDesign.com January 11, 2024 Mr. Justin Weldy Public Works Director Town of Fountain Hills 16705 E. Avenue of the Fountains Fountain Hills, Arizona 85268 Dear Justin Thank you for the opportunity to support you on the Town of Fountain Hills – Fountain Hills Boulevard & Shea Boulevard Turf Transition Improvements project in Fountain Hills, Arizona. The Project limits are from the north side of the Shea intersection to approximately 360 feet north on both sides of Fountain Hills Boulevard, 40 to 80 feet beyond curbs (+/- 38,000 sf). The median landscape area of Fountain Hills Boulevard is not anticipated to be in the design task for this project. The project involves the removal of existing turf and select plant materials, protection of select plant materials and utilities, and new design for desert landscape low maintenance treatment. Replacement of the existing irrigation system to be abandoned will be provided with reuse of the existing irrigation meter and backflow devices included in the design services. The project will include a 30%-90%-100% Construction Document technical submittals task (including specifications and cost estimates), along with a communication and meetings task. It is presumed that concept renderings for the fence design will be required. A field site visit to kick off the project is also anticipated. We will work collaboratively with the Town of Fountian Hills to design and permit this project. Support for bidding phase assistance is included. Construction phase administrative time is included as an hourly not to exceed allowance. General schedule to include a 5-month design window beginning late January / early February with design completion in late June. Construction is anticipated to begin August 2024. An elective task for photo simulation graphics is provided in this proposal. Image reference graphic Mr. Justin Weldy Town of Fountain Hills Fountian Hills Blvd. & Shea Blvd. Turf Transition Improvements – Fountain Hills, AZ 3116 S. Mill Avenue, Suite 305 – Tempe, Arizona 85282 www.HarringtonPlanningDesign.com SCOPE OF WORK Task 1.0 –– Meetings & Coordination 1. General coordination with Client, Development Team, and Owner via phone, email. HP+D shall coordinate with the Town of Fountain Hills Staff to determine project features, existing conditions impacts, plant materials, and irrigation equipment. 2. Provide one (1) site visit with the design team to collect site data, photo-document the existing conditions, and take field measurements of existing trees and utilities. Travel time, prep time for the event, and unpacking of information is included in this task. 3. Attend three (3) teleconference / progress meeting phone conferences during the project development. Meetings are presumed to be 1 hour or less per event. Meetings shall be utilized to confirm design vision/specific site issue and collaborate on project development. 4. Attend two (2) progress review / comment review meetings with City Staff. Meeting shall include a team Kick-off event on-site and submittal comment review meetings for 30% and 90% packages. Meetings are anticipated to be held virtually via TEAMS or ZOOM and be limited to 1-hour or less per event. Task 2.0 –– 30-90-100% Landscape Construction Document Packages 1. Create concept design solutions for existing landscape and turf removal, installation of new low maintenance desert landscape at each landscaped entry zone north of Shea Blvd. along Fountain Hills Blvd. Irrigation design for a drip system and modifications to the existing irrigation system are included in this task. This task shall include identification of existing materials to remove, existing materials to protect in place, and proposed materials for the design vision. Concept shall include a 2D color plan render of a project area for presentation. We assume the Town will provide a CAD, PDF or GIS file of the base site conditions (pavement edges, utilities, existing infrastructure). Compliance with Town of Fountain Hills development guidelines and standards shall be provided with the construction document package. It is presumed that 1 preferred alternative will be advanced to the 30% construction documentation package and beyond. 2. Prepare a 30% level 90% level, and 100% sealed level Landscape Construction Document plan package under this task. Plan shall be at 20-30 scale and match the Electrical package. Plans shall be prepared at a 24” x 36” size. The 30% progress package shall be delivered as a “Roll Plot” file using aerial imagery for background context. A 90% level package is anticipated to include plan sheets for existing condition removals/protections, new landscape, new irrigation, and include construction details and coversheet with notes as part of the package. We assume 7-9 total sheets required per submittal for this turf transition project. Corrections to comments and design advancement are also included with the time Mr. Justin Weldy Town of Fountain Hills Fountian Hills Blvd. & Shea Blvd. Turf Transition Improvements – Fountain Hills, AZ 3116 S. Mill Avenue, Suite 305 – Tempe, Arizona 85282 www.HarringtonPlanningDesign.com commitment for this task. Irrigation design is intended to connect to an existing turf spray system. 3. Prepare a cost estimate of landscape improvements for 30%, 90%, and 100% design level submittals. Revised quantities, verify pricing, and respond to progress submittal comments are included in this task. The estimate shall be prepared in EXCEL format and be submitted as a PDF file. 4. Prepare specifications / special provisions of hardscape/landscape/irrigation improvements for 90%, and 100% design level submittals. No specifications are intended for a 30% level submittal. Development of the narratives for each section, review of plans / details relating to spec sections, and respond to progress submittal comments are included in this task. Specifications shall be prepared in WORD format and be submitted as a PDF file. 5. Prepare deliverable packages for landscape plan as PDF’s, QC-QA, and submittal assembly requirements for Client review and use. Task administrative time will be captured under this category. HP+D shall provide a PDF of the graphics to Fountain Hills. No printed materials are to be provided by HP+D. Task 3.0 – Construction Bidding Services & Post Design Services (40-hrs) 1. Provide 40 hours of time x PM/Designer rate $125/hr. ($1,000.00) for post design services support time. Time will be spent at the direction of the HOA representative for on-site activities and remote coordination time. Services may include review of submitted materials, inspection of pre-installation conditions, inspection of layouts, inspection of post installation materials, and a punch list of incomplete or sub-par correction requirements. No As-Built plan preparation is included. Additional time allowance may be increased by the Client. Task 4.0 – Elective Task: Photo-Simulation Graphic 1. Prepare a photo simulation exhibit to illustrate before and after design graphic. This graphic will be prepared in Adobe Photoshop and submitted as a PDF file. Graphic shall be a large format 24x36 size exhibit with a perspective image of existing conditions photo of the project area presented and an overlay of the proposed design conditions adjacent image together. Graphic shall illustrate the project concept in perspective. Exhibit will be developed during the 30% level design task and include 1 revision to the graphic if required. Mr. Justin Weldy Town of Fountain Hills Fountian Hills Blvd. & Shea Blvd. Turf Transition Improvements – Fountain Hills, AZ 3116 S. Mill Avenue, Suite 305 – Tempe, Arizona 85282 www.HarringtonPlanningDesign.com Summary of Fees Our fee for the items indicated above shall be billed Not To Exceed monthly to a percentage of completion, maximum not to exceed the following: Task 1.0 – Meetings & Coordination $ 4,365.00 Task 2.0 – 30-90-100% Landscape Construction Document Packages $ 17,405.00 Task 3.0 – Construction Bidding Services & Post Design Services (40-hrs) $5,000.00 Reimbursable Allowance (none anticipated with this project) $0.00 Total Base Contract Fee $ 26,770.00 Task 4.0 – Elective Task: Photo-Simulation Graphic $880.00 Total Contract Fee with Elective Task $ 27,650.00 Mr. Justin Weldy Town of Fountain Hills Fountian Hills Blvd. & Shea Blvd. Turf Transition Improvements – Fountain Hills, AZ 3116 S. Mill Avenue, Suite 305 – Tempe, Arizona 85282 www.HarringtonPlanningDesign.com Extra Work Should additional services, meetings beyond quantities identified, or Client directed changes to the scope of work or site plan be required, they will be billed as an extra at the following hourly rates: Principal / RLA $150.00/hour Project Manager / Designer $125.00/hour Project Coordinator $110.00/hour Reimbursable Expenses Postage, reproductions, blueprinting, presentation material costs, wire transfer fees and other project related expenses are considered reimbursable and will be billed with our monthly statement for payment, net 30 days from date of the invoice. The reimbursable expenses shall be billed separately and are noted in the above project fees. Exclusions (to be discussed) - No Civil, Electrical, Structural, or Environmental Engineering - No Utility relocation - No application / review fees - No Plant inventory or salvage packages - No Wall, Gate, or Fence engineering /footing design. Assumptions (to be discussed) - Client will provide any and all site information available. - Invoices will be paid monthly. - Current HP+D insurance coverage amounts are per RFP requirements. - No Value Engineering beyond the 95% CD submittal review. Mr. Justin Weldy Town of Fountain Hills Fountian Hills Blvd. & Shea Blvd. Turf Transition Improvements – Fountain Hills, AZ 3116 S. Mill Avenue, Suite 305 – Tempe, Arizona 85282 www.HarringtonPlanningDesign.com If in agreement with this proposal, please indicate your acceptance of the preceding agreement by signing and returning the executed original to our office. The enclosed copy is for your files. Thank you for the opportunity to submit this proposal. We look forward to working with you on this project. Sincerely, Harrington Planning + Design Jason Harrington, RLA, ASLA, ASIC Principal 24p002– Fountain Hills – Fountain Hills Blvd & Shea Blvd Turf Transition Improvements, Fountain Hills, AZ ACCEPTED BY: Mr. Justin Weldy, or authorized representative Public Works Director Town of Fountain Hills. ______________________________________ 01/11/24 or thereafter Project - Fountain Hills- Shea Boulevard Turf Transition Improvements 01.10.24 Project #TBD Project Description / Location: Shea Blvd & Fountain Hills Blvd. / Fountain Hills, AZ A Sr. RLA / Principal, HP+D B Landscape Architect/ Project Manager, HP+D C Project Designer/Planner Technical, HP+D Turf Transition Improvements Task 1 A: Principal B: PM C: Tech Hrs:Hrs:Sub-Total Fee Task 1.0 – Meetings & Coordination 1.1 General Coordination with Client & Engineer 3 6 0 9 1.2 Teleconference Meetings x 3 events; 0 3 0 3 1.3 Progress Review Meetings x 3 events; review comments x 2, design team site visit x 1 4 14 4 22 Sub-Total Hours:7 23 4 34 Hourly Rates:150.00$ 125.00$ 110.00$ Sub-Total Fee (Task 1):1,050.00$ 2,875.00$ 440.00$ 4,365.00$ Task 2 A: Principal B: PM C: Tech Hrs:Hrs:Sub-Total Fee Task 2.0 – 30-90-100% Landscape Construction Document Packages 2.1 Create concept design solutions for existing landscape and turf removal, installation of new low maintenance desert landscape at each landscaped entry zone north of Shea Blvd. along Fountain Hills Blvd. Irrigation design for a drip system and modifications to the existing irrigation system are included in this task. This task shall include identification of existing materials to remove, existing materials to protect in place, and proposed materials for the design vision. Concept shall include a 2D color plan render of a project area for presentation. We assume the Town will provide a CAD, PDF or GIS file of the base site conditions (pavement edges, utilities, existing infrastructure). Compliance with Town of Fountain Hills development guidelines and standards shall be provided with the construction document package. It is presumed that 1 preferred alternative 2 5 20 27 2.2 Prepare a 30% level 90% level, and 100% sealed level Landscape Construction Document plan package under this task. Plan shall be at 20-30 scale and match the Electrical package. Plans shall be prepared at a 24” x 36” size. The 30% progress package shall be delivered as a “Roll Plot” file using aerial imagery for background context. A 90% level package is anticipated to include plan sheets for existing condition removals/protections, new landscape, new irrigation, and include construction details and coversheet with notes as part of the package. We assume 7-9 total sheets required per submittal for this turf transition project. Corrections to comments and design advancement are also included with the time commitment for this task. Irrigation design is intended to connect to an existing turf spray system.3 24 72 99 2.3 Prepare 30%, 90%, and 100% design level cost estimate for CD packages for landscape elements for project.1 3 3 7 2.4 Prepare 90%, and 100% design level Specifications for CD packages for landscape elements for project.3 6 0 9 2.5 Prepare deliverable package, QC-QA, submittal assembly x 3 1 3 3 7 Sub-Total Hours:10 41 98 149 Hourly Rates:150.00$ 125.00$ 110.00$ Sub-Total Fee (Task 2):1,500.00$ 5,125.00$ 10,780.00$ 17,405.00$ Task 3.0 – Bid Assistance / Construction Admin Support (40-hr Allowance) 3.1 allowance of time per requested participation - 40 hrs. x PM 0 40 0 40 Sub-Total Hours:0 40 0 40 Hourly Rates:150.00$ 125.00$ 110.00$ Sub-Total Fee (Task 3.0):-$ 5,000.00$ -$ 5,000.00$ Direct Reimbursables - allowance -$ Total Base Landscape Consultant fees (Harrington Planning + Design)26,770.00$ Task 4.0 – Elective Task: Photo-Simulation Graphic 4.1 Photo simulation exhibit 24x36 color 0 0 8 8 Sub-Total Hours:0 0 8 8 Hourly Rates:150.00$ 125.00$ 110.00$ Sub-Total Fee (Task 4.0):-$ -$ 880.00$ 880.00$ Total Contract Fee with Elective Task 27,650.00$ EXHIBIT B TO PROFESSIONAL SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND HARRINGTON PLANNING & DESIGN, LLC [Quote or Work Order] See following pages.