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HomeMy WebLinkAbout2020.0824.TCSM.Packet       NOTICE OF MEETING SPECIAL MEETING FOUNTAIN HILLS TOWN COUNCIL   Mayor Ginny Dickey Vice Mayor Mike Scharnow Councilmember Dennis Brown Councilmember Sherry Leckrone Councilmember Alan Magazine Councilmember David Spelich Councilmember Art Tolis    TIME:5:30 P.M. – SPECIAL MEETING WHEN:MONDAY, AUGUST 24, 2020 WHERE:FOUNTAIN HILLS COUNCIL CHAMBERS 16705 E. AVENUE OF THE FOUNTAINS, FOUNTAIN HILLS, AZ Councilmembers of the Town of Fountain Hills will attend either in person or by telephone conference call; a quorum of the Town’s various Commission, Committee or Board members may be in attendance at the Council meeting. Notice is hereby given that pursuant to A.R.S. §1-602.A.9, subject to certain specified statutory exceptions, parents have a right to consent before the State or any of its political subdivisions make a video or audio recording of a minor child. Meetings of the Town Council are audio and/or video recorded and, as a result, proceedings in which children are present may be subject to such recording. Parents, in order to exercise their rights may either file written consent with the Town Clerk to such recording, or take personal action to ensure that their child or children are not present when a recording may be made. If a child is present at the time a recording is made, the Town will assume that the rights afforded parents pursuant to A.R.S. §1-602.A.9 have been waived.    REQUEST TO COMMENT   The public is welcome to participate in Council meetings. TO SPEAK TO AN AGENDA ITEM, please complete a Request to Comment card, located in the back of the Council Chambers, and hand it to the Town Clerk prior to discussion of that item, if possible. Include the agenda item on which you wish to comment. Speakers will be allowed three contiguous minutes to address the Council. Verbal comments should be directed through the Presiding Officer and not to individual Councilmembers. TO COMMENT ON AN AGENDA ITEM IN WRITING ONLY, please complete a Request to Comment card, indicating it is a written comment, and check the box on whether you are FOR or AGAINST and agenda item, and hand it to the Town Clerk prior to discussion, if possible.   SPECIAL MEETING    SPECIAL MEETING NOTICE OF OPTION TO RECESS INTO EXECUTIVE SESSION Pursuant to A.R.S. §38-431.02, notice is hereby given to the members of the Town Council, and to the general public, that at this meeting, the Town Council may vote to go into executive session, which will not be open to the public, for legal advice and discussion with the Town's attorneys for legal advice on any item listed on the following agenda, pursuant to A.R.S. §38-431.03(A)(3).        1.CALL TO ORDER AND PLEDGE OF ALLEGIANCE – Mayor Dickey     2.INVOCATION - Rev. Tony Pierce, First Baptist Church of Fountain Hills     3.ROLL CALL – Mayor Dickey     4.REPORTS BY MAYOR, COUNCILMEMBERS AND TOWN MANAGER     A.PROCLAMATION August as Child Support Awareness Month     5.SCHEDULED PUBLIC APPEARANCES/PRESENTATIONS     A.FY20 Financial Update     6.CALL TO THE PUBLIC Pursuant to A.R.S. §38-431.01(H), public comment is permitted (not required) on matters NOT listed on the agenda. Any such comment (i) must be within the jurisdiction of the Council, and (ii) is subject to reasonable time, place, and manner restrictions. The Council will not discuss or take legal action on matters raised during Call to the Public unless the matters are properly noticed for discussion and legal action. At the conclusion of the Call to the Public, individual councilmembers may (i) respond to criticism, (ii) ask staff to review a matter, or (iii) ask that the matter be placed on a future Council agenda.     7.CONSENT AGENDA ITEMS All items listed on the Consent Agenda are considered to be routine, noncontroversial matters and will be enacted by one motion of the Council. All motions and subsequent approvals of consent items will include all recommended staff stipulations unless otherwise stated. There will be no separate discussion of these items unless a councilmember or member of the public so requests. If a councilmember or member of the public wishes to discuss an item on the Consent Agenda, he/she may request so prior to the motion to accept the Consent Agenda or with notification to the Town Manager or Mayor prior to the date of the meeting for which the item was scheduled. The items will be removed from the Consent Agenda and considered in its normal sequence on the agenda.        Town Council Special Meeting of August 24, 2020 2 of 4   A.CONSIDERATION OF approving the meeting minutes of the Special Meeting of June 16, 2020; the Regular Meeting of June 16, 2020; and the Special Meeting of June 19, 2020.     B.CONSIDERATION OF adopting Resolution 2020-35, abandoning a portion of the 10' Public Utility and Drainage Easement at the rear of Plat 505A, Block 2, Lot 9. (EA 2020-06)     C.CONSIDERATION OF Ratification of grant application submittal for Diamonds Back Youth Field Lighting at Four Peaks Park.     8.REGULAR AGENDA     A.CONSIDERATION OF Resolution 2020-36 declaring and adopting the results of the Primary Election held August 4, 2020.     B.CONSIDERATION OF Photo Enforcement at the Shea and Palisades intersection.    C.CONSIDERATION OF Approving the 2020 Resolutions proposed by the Arizona League of Cities and Towns.     D.PUBLIC HEARING AND CONSIDERATION of adopting Ordinance 20-13 amending the Town of Fountain Hills Zoning Ordinance, Section 1.12 by changing the definition of dwelling unit, Section 5.06 G regarding large accessory structures, and Section 10.02 A. 13. regarding guest houses.     E.CONSIDERATION OF approving Cooperative Purchase Agreement 2021-005 with A&H Painting for painting the buildings in the Town Hall complex.     F.CONSIDERATION OF approving Professional Services Agreement 2021-001 with Visus Engineering Construction Inc. to complete the Fountain Hills Blvd. Shoulder Paving Project.     G.CONSIDERATION OF awarding a professional services agreement with Blucor Contracting for the replacement of the Panorama Drainage Pipe and approving the associated budget transfer for FY 20-21 in the amount of $309,000.     H.CONSIDERATION OF adopting Ordinance No. 20-15 amending the Town Code, Chapter 12, Traffic, Section 12-2-2, Traffic Control Devices; Speed Limits, to lower the speed on Palisades Boulevard between Shea Boulevard and Golden Eagle Boulevard, from 45 MPH to 40 MPH.     I.CONSIDERATION OF approving a Safety Corridor Program and doubling of fines for      Town Council Special Meeting of August 24, 2020 3 of 4   I.CONSIDERATION OF approving a Safety Corridor Program and doubling of fines for speeding and other traffic offenses within the Safety Corridors.     9.COUNCIL DISCUSSION/DIRECTION to the TOWN MANAGER Item(s) listed below are related only to the propriety of (i) placing such item(s) on a future agenda for action, or (ii) directing staff to conduct further research and report back to the Council.     10.ADJOURNMENT         CERTIFICATE OF POSTING OF NOTICE The undersigned hereby certifies that a copy of the foregoing notice was duly posted in accordance with the statement filed by the Town Council with the Town Clerk. Dated this ______ day of ____________________, 2020. _____________________________________________  Elizabeth A. Burke, MMC, Town Clerk   The Town of Fountain Hills endeavors to make all public meetings accessible to persons with disabilities. Please call 480-816-5199 (voice) or 1-800-367-8939 (TDD) 48 hours prior to the meeting to request a reasonable accommodation to participate in the meeting or to obtain agenda information in large print format. Supporting documentation and staff reports furnished the Council with this agenda are available for review in the Clerk's Office.    Town Council Special Meeting of August 24, 2020 4 of 4   ITEM 4. A. TOWN OF FOUNTAIN HILLS STAFF REPORT    Meeting Date: 08/24/2020 Meeting Type: Town Council Special Meeting Agenda Type: Reports Submitting Department: Administration Prepared by: Angela Padgett-Espiritu, Executive Assistant to Manager, Mayor/Council Staff Contact Information: Angela Padgett-Espiritu, Executive Assistant to Manager, Mayor/Council SPECIAL PUBLIC APPEARANCES/PRESENTATIONS (Agenda Language):  PROCLAMATION August as  Child Support Awareness Month Staff Summary (Background) Mayor Dickey will be proclaiming August as Child Support Awareness Month. Attachments Proclamation - Child Support Awareness Month  Form Review Inbox Reviewed By Date Finance Director David Pock 08/10/2020 11:20 AM Town Attorney Aaron D. Arnson 08/10/2020 02:26 PM Town Manager Grady E. Miller 08/10/2020 02:41 PM Form Started By: Angela Padgett-Espiritu Started On: 08/05/2020 04:23 PM Final Approval Date: 08/10/2020  ITEM 5. A. TOWN OF FOUNTAIN HILLS STAFF REPORT    Meeting Date: 08/24/2020 Meeting Type: Town Council Special Meeting Agenda Type: Public Appearances/Presentations Submitting Department: Administration Prepared by: David Pock, Finance Director Staff Contact Information: David Pock, Finance Director SPECIAL PUBLIC APPEARANCES/PRESENTATIONS (Agenda Language):  FY20 Financial Update Staff Summary (Background) Staff will provide a summary of unaudited results of the fiscal year that ended 6/30/2020. The presentation will include financial highlights, review of major revenue sources, annual budgeted revenues and expenditures versus actual amounts, and projected year-end fund balances. Attachments FY20 Financial Update  Form Review Inbox Reviewed By Date Finance Director (Originator)David Pock 08/12/2020 05:57 PM Town Attorney Aaron D. Arnson 08/14/2020 09:36 AM Town Manager Grady E. Miller 08/14/2020 09:55 AM Form Started By: David Pock Started On: 08/10/2020 05:39 PM Final Approval Date: 08/14/2020  Fiscal Year 2020 Financial Update Grady Miller, Town Manager David Pock, Finance Director August 24, 2020 1 FY20 Financial Highlights •Current pandemic has increased uncertainty –TPT changes have helped provide a buffer •0.3% increase took effect in October 2019 •Wayfair decision allowing for collection of TPT on online sales •Agreement reached with vacation rental websites –Continue to benefit from focus on registering and educating owner’s of residential rentals –Reserve policies will help overcome “lag” in TPT and State Shared Revenue collection 2 FY20 Financial Highlights •The Town weathered the initial impact of the pandemic very well –Conservative revenue and expenditure budgeting lead to an overall $3.4M increase for the General Fund –Fund balance increase will be used first to bolster reserves and budgeted transfers for FY21 –Approximately $1-1.5M transfer to Capital Projects Fund expected after audit 3 FY20 Revenue Update Net Taxable Activity 4 $0.00 $10.00 $20.00 $30.00 $40.00 $50.00 $60.00 $70.00 Jul 1 Aug 2 Sep 3 Oct 4 Nov 5 Dec 6 Jan 7 Feb 8 Mar 9 Apr 10 May 11 Jun 12 Mi l l i o n s Net Taxable Activity by Fiscal Year & Period 2017 2018 2019 2020 FY20 Revenue Update Total TPT Collections 5 $0 $200 $400 $600 $800 $1,000 $1,200 $1,400 $1,600 Jul Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun 1 2 3 4 5 6 7 8 9 10 11 12 Th o u s a n d s Total TPT Collections by Fiscal Year & Period 2017 2018 2019 2020 FY20 Revenue Update TPT by Category 6 $0 $200 $400 $600 $800 $1,000 Jul Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun 1 2 3 4 5 6 7 8 9 10 11 12 Th o u s a n d s TPT Collections by Fiscal Year & Period Wholesale/Retail 2017 2018 2019 2020 $0 $50 $100 $150 $200 $250 Jul Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun 1 2 3 4 5 6 7 8 9 10 11 12 Th o u s a n d s TPT Collections by Fiscal Year & PeriodServices 2017 2018 2019 2020 $0 $50 $100 $150 Jul Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun 1 2 3 4 5 6 7 8 9 10 11 12 Th o u s a n d s TPT Collections by Fiscal Year & Period Restaurant & Bar 2017 2018 2019 2020 $0 $100 $200 $300 $400 Jul Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun 1 2 3 4 5 6 7 8 9 10 11 12 Th o u s a n d s TPT Collections by Fiscal Year & Period Construction 2017 2018 2019 2020 FY20 Revenue Update State Shared Revenues 7 $280 $270 $260 $250 $240 $230 $220 Jul 1 Aug 2 Sep 3 Oct 4 Nov 5 Dec 6 Jan 7 Feb 8 Mar 9 Apr 10 May 11 Jun 12 Th o u s a n d s State Shared Revenue -Income Tax 2017 2018 2019 2020 $300 $250 $200 $150 $100 $50 Jul 1 Aug 2 Sep 3 Oct 4 Nov 5 Dec 6 Jan 7 Feb 8 Mar 9 Apr 10 May 11 Jun 12 Th o u s a n d s State Shared Revenue -Sales Tax 2017 2018 2019 2020 $350 $300 $250 $200 $150 $100 $50 Jul 1 Aug 2 Sep 3 Oct 4 Nov 5 Dec 6 Jan 7 Feb 8 Mar 9 Apr 10 May 11 Jun 12 Th o u s a n d s Highway User Revenue Fund (HURF) 2017 2018 2019 2020 $140 $120 $100 $80 $60 $40 $20 Jul 1 Aug 2 Sep 3 Oct 4 Nov 5 Dec 6 Jan 7 Feb 8 Mar 9 Apr 10 May 11 Jun 12 Th o u s a n d s State Shared Revenue -Vehicle License Tax 2017 2018 2019 2020 FY20 Total Revenue All Funds 8 $18 $16 $14 $12 $10 $8 $6 $4 $2 -$ TAXES INTERGOVERNMENTAL OTHER Mi l l i o n s Total FY20 Revenue Budget vs Actual -All Funds Revised Budget Actual Total = $27.9M FY20 Total Expenditures All Funds 9 $0.0 $2.0 $4.0 $6.0 $8.0 $10.0 $12.0 $14.0 CONTRACTUAL SERVICES WAGES & BENEFITS MAINTENANCE & UTILITIES CAPITAL EXPENDITURES DEBT SERVICE SUPPLIES & SERVICES TRANSFERS & CONTINGENCY Mi l l i o n s Total FY20 Expenditures Budget vs Actual -All Funds Revised Budget Actual Total = $26.6M FY20 Total Revenues General Fund 10 $12 $10 $8 $6 $4 $2 -$ TAXES INTERGOVERNMENTAL OTHER Mi l l i o n s Total FY20 Revenue Budget vs Actual -General Fund Revised Budget Actual Total = $19.3M FY20 Total Expenditures General Fund 11 $0.0 $2.0 $4.0 $6.0 $8.0 $10.0 $12.0 CONTRACTUAL SERVICES WAGES & BENEFITS MAINTENANCE & UTILITIES SUPPLIES & SERVICES OTHER M i l l i o n s Total FY20 Expenditures Budget vs Actual -General Fund Revised Budget Actual Total = $15.9M FY20 Total Expenditures General Fund 12 $0.0 $1.0 $2.0 $3.0 $4.0 $5.0 $6.0 Mi l l i o n s Total FY20 Expenditures by Department General Fund Revised Budget Actual Total = $15.9M 13 General Fund Rainy Day Fund 3,086,699$ General Fund 5,542,895 8,629,594$ Streets (HURF) Fund 1,731,217 1,731,217 Special Revenue Funds Special Revenue Fund - Public Art Fund 162,655 Court Enhancement Fund 401,537 Environmental Fund 587,213 Cottonwoods Maintenance District Fund 21,989 1,173,394 Excise Tax Funds Downtown Strategy Fund 987,013 Economic Development Fund 103,546 Tourism Fund 83,261 1,173,820 Debt Service General Obligation Debt Service Fund 124,219 Eagle Mountain CFD Debt Service Fund 26,312 MPC Debt Service Fund 11,537 162,068 Capital Projects Capital Projects Fund 4,261,958 4,261,958 Development Fees Fire & Emergency 294,740 Streets 3,870 Parks & Recreation 797,749 1,096,359 Replacement Funds Facilities Replacement Fund 1,610,915 Technology Replacement Fund - Vehicle Replacement Fund 775,154 2,386,069 Grand Total 20,614,479$ Questions? 14 ITEM 7. A. TOWN OF FOUNTAIN HILLS STAFF REPORT    Meeting Date: 08/24/2020 Meeting Type: Town Council Special Meeting Agenda Type: Consent Submitting Department: Administration Prepared by: Elizabeth A. Burke, Town Clerk Staff Contact Information: Grady E. Miller, Town Manager Request to Town Council Special Meeting (Agenda Language):  CONSIDERATION OF approving the meeting minutes of the Special Meeting of June 16, 2020; the Regular Meeting of June 16, 2020; and the Special Meeting of June 19, 2020. Staff Summary (Background) The intent of approving meeting minutes is to ensure an accurate account of the discussion and action that took place at the meeting for archival purposes. Approved minutes are placed on the Town's website and maintained as permanent records in compliance with state law. Related Ordinance, Policy or Guiding Principle N/A Risk Analysis N/A Recommendation(s) by Board(s) or Commission(s) N/A Staff Recommendation(s) Staff recommends approving the minutes of the Special Meeting of June 16, 2020; the Regular Meeting of June 16, 2020; and the Special Meeting of June 19, 2020. SUGGESTED MOTION MOVE to approve the minutes of the Special Meeting of June 16, 2020; the Regular Meeting of June 16, 2020; and the Special Meeting of June 19, 2020. Attachments 2020.0616.TCSMES.Minutes  2020.0616.TCRM.Minutes  2020.0619.TCSM.Minutes  Form Review Inbox Reviewed By Date Town Manager Grady E. Miller 08/11/2020 09:48 AM Form Started By: Elizabeth A. Burke Started On: 08/10/2020 05:12 PM Final Approval Date: 08/11/2020  TOWN OF FOUNTAIN HILLS MINUTES OF THE SPECIAL MEETING OF THE FOUNTAIN HILLS TOWN COUNCIL JUNE 16, 2020            1.CALL TO ORDER – Mayor Dickey    Mayor Dickey called the Special Meeting of June 16, 2020, to order at 4:49 p.m.   2.ROLL CALL – Mayor Dickey Present: Mayor Ginny Dickey; Councilmember Mike Scharnow; Councilmember Art Tolis; Councilmember Dennis Brown (telephonically); Councilmember Alan Magazine; Councilmember David Spelich  Absent: Vice Mayor Sherry Leckrone  Staff Present: Town Manager Grady E. Miller; Town Attorney Aaron D. Arnson; Finance Director David Pock; Town Clerk Elizabeth A. Burke  3.RECESS INTO EXECUTIVE SESSION    MOVED BY Councilmember David Spelich, SECONDED BY Councilmember Mike Scharnow to recess into Executive Session.   Vote: 6 - 0 Passed - Unanimously   4.EXECUTIVE SESSION    The Fountain Hills Town Council recessed into Executive Session at 4:49 p.m.   A.Discussion or consultation for legal advice with the attorney or attorneys of the public body, pursuant to A.R.S. 38-431.03(A)(3).    i.Contract with Maricopa County Sheriff's Office   5.ADJOURNMENT    The Fountain Hills Town Council reconvened into Open Session at 5:16 at which time the Special Meeting of June 16, 2020, adjourned.     TOWN OF FOUNTAIN HILLS ____________________________ Ginny Dickey, Mayor                ATTEST AND PREPARED BY: ______________________________  Elizabeth A. Burke, Town Clerk    TOWN OF FOUNTAIN HILLS MINUTES OF THE REGULAR MEETING OF THE FOUNTAIN HILLS TOWN COUNCIL JUNE 16, 2020            1.CALL TO ORDER AND PLEDGE OF ALLEGIANCE – Mayor Dickey    Mayor Dickey called the Regular Meeting of June 16, 2020, to order at 5:32 p.m. and led the Council and audience in the Pledge of Allegiance.   2.INVOCATION - Dr. Cathy Northrup of Community Church of the Verdes    Dr. Cathy Northrup of Community Church of the Verdes gave the invocation.   3.ROLL CALL – Mayor Dickey Present: Mayor Ginny Dickey; Vice Mayor Mike Scharnow; Councilmember Sherry Leckrone (telephonically); Councilmember Art Tolis; Councilmember Dennis Brown (telephonically); Councilmember Alan Magazine; Councilmember David Spelich Staff Present: Town Manager Grady E. Miller; Town Attorney Aaron D. Arnson; Town Clerk Elizabeth A. Burke 4.REPORTS BY MAYOR, COUNCILMEMBERS AND TOWN MANAGER    Councilmember Magazine said that he was not trying to embarrass anyone intentionally, but he would hope that they could have prayers that are all inclusive. Mayor Dickey said that she appreciated MCSO’s partnership and in creating the Joint Statement in response to the killing of George Floyd and subsequent events, which is on the Town's website and in the Times. She reported that on the weekly call with Mayors and Senator Sinema, they again indicated concern with the rising cases of COVID-19 in Arizona. Masks are increasingly being recognized as vital to help keep each other safe. She asked everyone to please wear masks when out and about. She said that it is simple and effective, and their healthcare workers and first responders would be grateful, as well. Mayor Dickey reported that they watched the high school graduation live-streamed. Counselor Jason Henslin introduced the seniors as they walked across the stage. He mentioned that the last time it was held at the football field was when he graduated in 2002; the same class as her middle son, and they are still friends. She said that there was a lot of nostalgia, and even more hope for the future. Congratulations to the graduates and their families. She reported that she had virtual meetings with the East Valley Partnership; GPEC gave a Regional Report on Hospitality, Restaurants & Tourism; and the quarterly East Valley Mayors meeting was held.          5.SCHEDULED PUBLIC APPEARANCES/PRESENTATIONS   A.PRESENTATION: Monthly Update from MCSO Captain Larry Kratzer.      MCSO Captain Kratzer gave his monthly report through a PowerPoint presentation. He encouraged anyone with questions to contact him directly noting that his phone number is listed on the Town's website. Mr. Miller added that the Administration Number for MCSO was 480-837-2047 and the Non-emergency number was 602-876-1011. Councilmember Spelich thanked the men and women from the bottom of his heart for doing one of the absolutely hardest jobs. He said that every issue he has addressed from a resident has been done so immediately.   6.CALL TO THE PUBLIC Pursuant to A.R.S. §38-431.01(H), public comment is permitted (not required) on matters NOT listed on the agenda. Any such comment (i) must be within the jurisdiction of the Council, and (ii) is subject to reasonable time, place, and manner restrictions. The Council will not discuss or take legal action on matters raised during Call to the Public unless the matters are properly noticed for discussion and legal action. At the conclusion of the Call to the Public, individual councilmembers may (i) respond to criticism, (ii) ask staff to review a matter, or (iii) ask that the matter be placed on a future Council agenda.    Everett Rosenbauer, Fountain Hills, said that he was disappointed that the planned march was cooped. He said that he felt the same sentiment and understood why they felt threatened. It was unfortunate that they went about it the right way and had to cancel. Bob Shelstrom, Fountain Hills, said that he wanted to compliment Justin Weldy. Contrary to a lot of his past experience with the Town of no transparency, Mr. Weldy has been the best that he has dealt with in 40 years. He is consistent, honest, and smart enough to know what he does not know and he was glad that the Town has him. He also said that he read through the monthly MCSO report and was surprised that the Town was not requesting a monthly manpower report. He respectfully requested that the Town request such a report in the future.   7.CONSENT AGENDA ITEMS All items listed on the Consent Agenda are considered to be routine, noncontroversial matters and will be enacted by one motion of the Council. All motions and subsequent approvals of consent items will include all recommended staff stipulations unless otherwise stated. There will be no separate discussion of these items unless a councilmember or member of the public so requests. If a councilmember or member of the public wishes to discuss an item on the Consent Agenda, he/she may request so prior to the motion to accept the Consent Agenda or with notification to the Town Manager or Mayor prior to the date of the meeting for which the item was scheduled. The items will be removed from the Consent Agenda and considered in its normal sequence on the agenda.    MOVED BY Councilmember Alan Magazine, SECONDED BY Vice Mayor Mike Scharnow to approve Consent Agenda Items 7-A through 7-J (excluding 7-F which was previously moved to the Regular Meeting).  Vote: 7 - 0 Passed - Unanimously   A.CONSIDERATION OF approving the meeting minutes of the Special Meeting of June 2, 2020, and the Regular Meeting of June 2, 2020.      Town Council Regular Meeting of June 16, 2020 2 of 16   B.CONSIDERATION OF Resolution 2020-15 approving the designation of Chief Fiscal Officer of the Town of Fountain Hills.      C.CONSIDERATION OF approving adjusting budget transfer for Capital Projects Fund.     D.CONSIDERATION OF approving a Liquor License Application for Flourish, located at 13225 N Eagle Ridge Drive, Fountain Hills, Arizona, for a Series 12 (Restaurant) license.      E.CONSIDERATION OF approving a Liquor License Application for Copperwynd Market, located at 13225 N. Eagle Ridge Drive, Fountain Hills, Arizona, for a Series 10 (Beer and Wine Store) license.      F.HOLD A PUBLIC HEARING AND CONSIDER Ordinance 20-09 amending Zoning Ordinance Section 19.05 I., Public Art Requirements, to change the requirements to comply with the Town of Fountain Hills Public Art Master Plan. THIS ITEM MOVED TO 8-B UNDER REGULAR AGENDA      G.CONSIDERATION OF approving a SPECIAL EVENT LIQUOR LICENSE APPLICATION submitted by the Fountain Hills VFW Post 7507, for the Fountain Hills Chamber of Commerce Gala event to be held at the Community Center, 13001 N. La Montana Drive, Fountain Hills, AZ from 5:00PM to 10:00 PM on Friday, August 21, 2020.      H.CONSIDERATION OF approving two (2) SPECIAL EVENT LIQUOR LICENSE APPLICATIONS submitted by the River of Time Museum, for fundraising dinners to be held at the Fountain Hills Community Center, 13001 N. La Montana Drive, Fountain Hills, AZ on the following dates: (i) Wednesday, September 23, 2020 from 5:00PM to 10:00PM (ii) Saturday, October 3, 2020, from 4:00PM to 10:00PM.      I.CONSIDERATION OF adopting Resolution 2020-20 approving an Intergovernmental Agreement with Maricopa Association of Governments for the preparation of an Active Transportation Plan.      J.CONSIDERATION OF Resolution 2020-33 approving the designation of Applicant Agent of the Town of Fountain Hills.      K.CONSIDERATION OF Ordinance 20-11 amending the Town Code Article 6-2 Section 1 Definitions, and Section 5 Dogs not Permitted at Large; Wearing Licenses; and Amending Article 9-4, Section 3 Rules and Regulations at Town Owned Parks      L.CONSIDERATION OF approving staff to seek and apply for grants from the Maricopa Association of Governments (MAG) & Maricopa County Flood Control District (MCFCD).      8.REGULAR AGENDA   A.PUBLIC HEARING AND CONSIDERATION OF a request for a Special Use Permit allowing operation of a hospital between 11:00 pm and 7:00 am on an approximately 5.74 acre parcel generally located at the northwest corner of N. Saguaro Boulevard and E. Trevino Drive in the C-1 Neighborhood Commercial and Professional Zoning District. SU 2020-01       Development Services Director John Wesley gave a PowerPoint presentation which Town Council Regular Meeting of June 16, 2020 3 of 16  Development Services Director John Wesley gave a PowerPoint presentation which addressed: REQUEST RECOMMENDED SITE PLAN ARCHITECT SITE WALLS STAFF ANALYSIS - LIGHTING PLANNING AND ZONING COMMISSION RECOMMENDED BOLLARDS LANDSCAPE PLAN NOISE Mr. Wesley said that a Sound Study has been provided at the noise levels to be expected and at the top of the hill is within the limitations of the Town Code. He said that the Noise Ordinance exempts mechanical noises as long as the equipment is operating properly. OPTIONS PLANNING AND ZONING COMMISSION RECOMMENDATION Mayor Dickey noted that they were still in the Public Hearing that was continued from the last Council meeting. Suzu Henderson, non-Fountain Hills resident, said that while she is not a resident she lives in an adjacent area at the bottom of the hill and is the past Executive Director of the Fountain Hills Theater. Her daughter fell on the stage in the past and the best option was a 20-25 minutes drive. She said her preference would be that, "what happens in Fountain Hills stays in Fountain Hills," and as an aging individual and mother of five, she supports this consideration. She would also like to build a mental health cooperation with the hospital at no cost beyond co-pays. It would be a win-win for staff and patients to have such a partnership in place. Rose Anouti, Fountain Hills resident, said that she lives right behind the proposed facility. She and her neighbors are not trying to stop it, but they want the stipulations applied to all phases of the development. At the Planning and Zoning Commission meeting they were asked to draft an agreement with the developers, but she did not hear from anyone that she reached out to. She was told she needed to contact their attorney so she hired an attorney. She said that since this is one of the entrances to their beautiful town, she asked that they look closer at the proposed block walls. Ms. Anouti invited Councilmember Brown, with his expertise, to come and see the project from her vantage point and see what she will be looking at 14 air handlers. Larry Meyers, Fountain Hills resident, said that he was disappointed that he cut this deal with Dan Kauffman that has turned out to be a bitter battle. He said that he sold the neighbors on the project as Mr. Kauffman would get to sell his land; the Town would get a free-standing emergency room; and impacts to the neighbors would be far less than C-1 uses. He said that they have not tried to stop the hospital; they have worked to get them to keep the promises they originally made. He said that Conditions 1-10 cover a lot of the concerns. They looked at a thoughtful plan from the Planning and Zoning Commission with all the stipulations. It would give the Town and him an opportunity to be right with the neighbors. Mr. Wesley said that the applicant was present at the meeting if they should have any Town Council Regular Meeting of June 16, 2020 4 of 16 questions for them, as well as the person that did the noise study. Councilmember Brown said that he believes that the walls are okay and would like them to consider the 15-foot high light poles. With regard to the air conditioning units, those used today are high effiiciency units and they do not generate a sound like a jet taking off like the old ones. He said that he agreed with the sound engineers; they will probably get more noise from the trucks going down Shea. He said that they went through this same issue when Fire Station #2 was relocated. They had people one mile away that were offering their concerns and being quite vocal. The station got built and they have had one complaint--when they put in the lights on the flagpole they shined into the neighbors. Mr. Miller went to that house and met with them, and they worked on it from that day on. He said that everyone needs to take a step back and take a deep breath. He said that the Town is trying real hard to work with the hospital, and they are trying to work with the Town as well. Councilmember Magazine said, in response to Ms. Anouti's comment of seeing the 14 air handlers, that when they live on a hill they look down and will see things. Councilmember Brown said that they have a standard for lighting, mainly due to the Dark Sky Ordinance. The lumens are controlled and with the 15-foot light poles they are not even as high as the building. They are going to see the parking lot illuminated; they are not going to be looking at the lights. Councilmember Spelich said that they are in a good position, getting advice from the Planning and Zoning Commission, with one of their members having built hospitals for a living. He said that his concerns are that they received a lot of e-mails from people, and they have to consider what the majority of people in the community will benefit from. He asked if the developers, since they believe their noise study is valid, would agree to add a clause in the agreement that they will conduct another sound study after it is built. And, if it turns out there is a problem they would mitigate the noise issues. Pete Peters, representing the two doctors putting this together, had asked that he convey that they have concern with one of the Planning and Zoning Commissioners working for Honor Health and when this opens it could have a negative impact on them. Additionally, he said that they have not agreed with the bollard lights. He said that his clients have spent a lot of money bringing this forward; they are not deep pockets. Once they get it built, if they do not get a Special Use Permit, they may not build Phase 2 or Phase 3. Councilmember Magazine asked for clarification on the number of generators. Mr. Peters said that they have one on site for emergency purposes and the other one, much smaller, will be used for the pharmacy. He said that Phase 2 is mostly for additional operating rooms. Building 3 is a medical office building. Mayor Dickey said that one of the concerns with the second phase being administratively approved had to do with the entrance. She asked if they would ask for a 24-hour special use permit for the second phase if the stipulation to obtain administrative approval was not included. Mr. Peters said that they would request an administrative approval process. Councilmember Spelich said that to impugn the integrity of someone on the commission is Town Council Regular Meeting of June 16, 2020 5 of 16 low; to say that Honor Health is going to be a competitor is ludicrous. He said that for the applicants to say they won't go through the additional phases if the Council votes to approve the Commission recommendations is also ridiculous. Mr. Peters said that he was relaying what his client had said; he apologized for any miscommunication. He said that it was a unanimous vote with conditions they cannot agree with. Councilmember Magazine asked which conditions they did not agree to. Mr. Peters said that they now have a wall; the Code says they put it on the boundary line, which they have done. With regard to the bollard lights, it would take 78 lights to replace the 15-foot light poles. Councilmember Magazine said that this has been a tough one for everyone. He said that his allegiance is not to the hospital; he wants to make sure that the residents are treated reasonably. If they do decide to go along with Phase 2, he did not think it should be approved administratively and he would ask for a communications plan. He said that he would have to take that back to his clients; they would be happy to do a communications plan. Mr. Peters said that in the past they tried the direct approach with regard to communication, but it did not work, so they have directed all communications to Mr. Wesley's office. Councilmember Brown said that they should give the developer some credit for putting up with what they have been put through. He believes that they have worked diligently with the neighbors and when Phase 2 happens, they will welcome it. At this time, Sound Engineer Tony Sola came forward, stating that he has done over 2,000 noise studies. He said that there is no opinion in it--it is simply math. He said that the biggest concern was with a heliport, which is no longer an issue, and with the generators. He said that there are two relatively small generators. The main one is the quietest. He did not include shielding or a wall around them. If that is required, it would reduce the noise further. He added that they are only used during a power outage. One would never be tested and the other one would be tested monthly for a ten minute period of time. It was noted that the Noise Ordinance has an exception for HAC operating equipment. Mr. Sola said that he has been an expert witness on different sides in the past, and every time it is an issue, the Arizona judges said it is Arizona and it is needed equipment.    The following individuals submitted written cards in support of the SUP application: Kathleen Butler; Nancy Rymer; Paul Queenan; Jerry Butler; Richard Rymer; Elizabeth Rymer; Sharron Grzybowski; Amy Arnold; Callie Becker; Scott Grzybowski. No comment cards were submitted in opposition to the application.    Councilmember Leckrone thanked Mr. Wesley for all he has done. With regard to #7 of the recommended stipulations, she asked Mr. Wesley for further clarification. Mr. Wesley said that this has come through his review. Given what he sees as the additional impact he thinks it is something that could be handled administratively. He said that the Zoning Ordinance says that when they apply for a Special Use Permit, they are to include a site plan for layout fo the uses. They have requested for the full 5.7 acres. Technically, they cannot approve it for anything not fully shown. He said that in his mind, it would be tentatively approved, subject to his approval of the site plan. Vice Mayor Scharnow asked if, from what he knows, they could accomplish that without any access onto Burkemo. Mr. Wesley said that there is enough frontage along Trevino. The Town Council Regular Meeting of June 16, 2020 6 of 16 concept makes it a challenge. Vice Mayor Scharnow said that someone commented about the wall and how it looks--smooth and split-face block. He said that is the same type of wall at Town Hall. Councilmember Tolis thanked the developer's representative. He said that he did not take an hour for comments; he was communicating their frustrations. He said that the residents should respect all they have gone through. He thinks they have done a good job of trying to help the neighbors. Everyone knows that a hospital is going to be a benefit to the entire Town. He said that he was in favor of moving forward with a motion. Robert Quintana, architect on the project, said that it was requested that they switch out the 15-foot tall lights with 78 bollard lights. Bollard lights create a hazardous situation and if they are required to place them, they would ask for indemnification for legal liabilities. He said that neighbors of projects in Flagstaff and Sedona sued developers regarding lighting; it was ruled against because bollard lights were inviting hazard. His recommendation would be no bollards be used in the traffic areas; only in the pedestrian areas. With regard to the wall, Mr. Quintana said that there is about 27 feet of wall where it could adjoin Ms. Anouti's fence, but she would have to remove her fence. Councilmember Spelich asked how the style of the roof fit into their evaluation. Mr. Sola said that the parapet wall does not work as well, but most of the noise is through the distance. The reflections can add to that, but not noticeably. Councilmember Spelich asked what he charges for his services. Mr. Sola replied $200 per hour. Councilmember Spelich asked how long it would take for him to assess the noise coming from them once it was built. Mr. Sola said that his concern would be with being able to show the noise of the equipment above the ambient sound. Discussion was then held on what would happen if someone filed a noise complaint. Mr. Miller said that staff would measure the noise levels at the fence (property) line. Councilmember Tolis said that right now they have representation telling them that their equipment will comply. Council is making the assumption that they are not going to comply.    MOVED BY Councilmember Art Tolis, SECONDED BY Councilmember Sherry Leckrone (telephonically) to approve the Special Use Permit for the hospital proposed at 9700 N. Saguaro Boulevard allowing operation of the facility between 11:00 p.m. and 7:00 a.m. subject to the conditions 1 through 7 as recommended by the Planning and Zoning Commission.1, 2, 3, 4, 5, 6, 7 with modification to allow administrative approval. Stated: Submission of a complete set of revised drawings showing the revised drive thru ambulance bay, revised landscape plan, and all other conditions of approval. 1. Revising the May 18, 2020 site/landscape plan and submitting it as part of the complete set of revised drawings for acceptance by the Development Services Director adding 6 - 9 screening trees (minimum 10' tall) to the site plan along the northern property line adjacent to Lots 4 and 5 to provide additional screening. 2. Providing signage directing ambulances to exit to the left around the back of the building. 3. Modifying the site plan to show the location for a temporary generator.4. Providing additional sound attenuation for the rooftop mechanical units if required to meet the Town's noise ordinance. 5. Removing Sheet C-4, GD Plan, from the set of drawing submitted with the SUP application. 6. Town Council Regular Meeting of June 16, 2020 7 of 16 All future phases may be approved administratively.7.    MOVED BY Councilmember Alan Magazine, SECONDED BY Vice Mayor Mike Scharnow to amend the motion to remove the exception to #7 (thereby requiring review by the Council) and if there is excessive noise at Rose's boundary line after it is built staff is required to use their own equipment, or hire someone, to determine whether there is a violation of the noise ordinance.    Councilmember Tolis said that there are already procedures in place to address noise violations. That is why they have quality staff to review something like this. To go through the entire process again requires considerable cost and it is not fair to let one person's opposition make them go through the entire process again. He said that Councilmember Magazine does not need to amend the motion to address something already in the Code. Councilmember Magazine said that he is doing it anyway. He said that whether it is approved administratively or through the Council, the applicant has to do everything anyway. Councilmember Brown said that there is a ton of difference between the two processes. Having to go back through this entire process again is ridiculous.    Vote: 2 - 5 Failed  AYE: Councilmember Alan Magazine  Councilmember David Spelich    MOVED BY Councilmember Alan Magazine, SECONDED BY Vice Mayor Mike Scharnow to amend the motion to remove administrative review and require it to come back to Council for approval for Phase 2.  Vote: 2 - 5 Failed  AYE: Councilmember Alan Magazine  Councilmember David Spelich    ORIGINAL MOTION STATED: to approve the Special Use Permit for the hospital proposed at 9700 N. Saguaro Boulevard allowing operation of the facility between 11:00 p.m. and 7:00 a.m. subject to the conditions 1 through 7 as recommended by the Planning and Zoning Commission.1, 2, 3, 4, 5, 6, 7 with modification to allow administrative approval. Stated: Submission of a complete set of revised drawings showing the revised drive thru ambulance bay, revised landscape plan, and all other conditions of approval. 1. Revising the May 18, 2020 site/landscape plan and submitting it as part of the complete set of revised drawings for acceptance by the Development Services Director adding 6 - 9 screening trees (minimum 10' tall) to the site plan along the northern property line adjacent to Lots 4 and 5 to provide additional screening. 2. Providing signage directing ambulances to exit to the left around the back of the building. 3. Modifying the site plan to show the location for a temporary generator.4. Providing additional sound attenuation for the rooftop mechanical units if required to meet the Town's noise ordinance. 5. Town Council Regular Meeting of June 16, 2020 8 of 16 Removing Sheet C-4, GD Plan, from the set of drawing submitted with the SUP application. 6. All future phases may be approved administratively.7.    Vote: 6 - 1 Passed  NAY: Councilmember David Spelich   B.HOLD A PUBLIC HEARING AND CONSIDER Ordinance 20-09 amending Zoning Ordinance Section 19.05 I., Public Art Requirements, to change the requirements to comply with the Town of Fountain Hills Public Art Master Plan.*THIS ITEM MOVED FROM THE CONSENT AGENDA       Mr. Wesley said that the Public Art fee is currently included in the Public Art Master Plan, as well as the Zoning Ordinance. This amendment would remove that fee within the Zoning Ordinance and replace it with a reference to the Master Plan. Mayor Dickey opened the Public Hearing. There being no public input, Mayor Dickey closed the Public Hearing.    MOVED BY Vice Mayor Mike Scharnow, SECONDED BY Councilmember Dennis Brown (telephonically) to adopt Ordinance 20-09.  Vote: 7 - 0 Passed - Unanimously   C.CONSIDERATION OF Ordinance 20-12 amending chapter 12 of the Town Code, Article 12-3, Section 12-3-10, storage & parking of commercial vehicles.       Mr. Wesley said that the Town has received concerns from residents about semi trucks and commercial vehicles being parked on public streets. This amendment would prohibit parking of such vehicles on Town streets and they would install no parking signs in designated areas, which will be an additional tool for MCSO. This will not only provide the Sheriff's Office an opportunity to educate the public, but it allows Town staff, including Code Enforcement, the ability to produce and install signs. Greg Golucci, Fountain Hills resident, voiced support for the ordinance, noting that there are some trucks that have parked for months at a time over on Colony. He said that there are landscaping crews that will park their trucks there at the end of the day, which he did not have a concern with, but some of the other trucks have been there for months and even have flat tires. Vice Mayor Scharnow asked about a plumber who parks his van in front of his house. Mr. Wesley said most of that type of thing is addressed already in the Town Code and governed by HOA's or the NPOA. Councilmember Magazine said that they cannot enforce the code violations they have now; he does not know how they will enforce this. Mr. Wesley said that they do their best to support the Sheriff's Office and Code Enforcement. When it comes to parking violations, they take it seriously. He said that it will initially be based upon complaints. Discussion was held on whether there should be time restrictions. Mr. Wesley said that they could refine each individual area to determine what works best. Councilmember Magazine Town Council Regular Meeting of June 16, 2020 9 of 16 asked if they could have someone towed after they received three tickets. Mr. Wesley said that there is already a process in place for abandoned vehicles. It is the responsibility of the vehicle owner to pay for towing and storage. He added that they do not have to do that often.    MOVED BY Vice Mayor Mike Scharnow, SECONDED BY Councilmember Art Tolis to adopt Ordinance 20-12.  Vote: 7 - 0 Passed - Unanimously   D.CONSIDERATION OF Resolution 2020-34 accepting the AZCares Fund program grant from the State of Arizona and authorizing the Town Manager, or his designee, to apply for, accept, and/or receive any future grant dollars related to COVID-19 relief efforts, and approval of associated budget transfer.       Mr. Miller explained that this is a required resolution in order to receive funds from Arizona Cares Fund, which has had 1.9 billion dollars earmarked for cities and towns under 500,000 population. He said that as part of the $441,000 being released at this time, Fountain Hills' share is $2.9 million.    MOVED BY Councilmember Sherry Leckrone (telephonically), SECONDED BY Councilmember Dennis Brown (telephonically) to adopt Resolution 2020-34, and approve the associated budget transfer.  Vote: 7 - 0 Passed - Unanimously   E.CONSIDERATION OF a proposed Fountain Hills Small Business Recovery Program to include a variety of measures to assist small businesses, consistent with State law and in accordance with guidance and direction from State officials.       Mr. Miller said that as part of the previous item the Economic Development Director, James Smith, has designated 10% of the funds for a Small Business Recovery Program. Mr. Smith began a PowerPoint presentation which addressed: BUSINESS LICENSE EXTENSION DEVELOPMENT SERVICES PERMIT AND APPROVAL EXTENSION OF PREMISES TEMPORARY SIGNAGE - RELAX CODE REQUIREMENTS FOUNTAIN HILLS SMALL BUSINESS GRANT PROGRAM Mr. Smith said that as part of the Extension of Premises, this would assist with expanding premise boundaries to help with social distancing, although if they served liquor they would need to obtain an extension of premises from the state. Councilmember Tolis thanked Mr. Miller and Mr. Smith for moving forward with this. He said that it was a great way to show how the Town supports small businesses. Mr. Smith said that under these provisions they would allow a-frame signs and banners, but not feather signs.    MOVED BY Councilmember Art Tolis, SECONDED BY Councilmember Dennis Brown Town Council Regular Meeting of June 16, 2020 10 of 16  MOVED BY Councilmember Art Tolis, SECONDED BY Councilmember Dennis Brown (telephonically) to authorize the Town Manager or designee to automatically extend business licenses and waive associated fees for six months in order to reduce paperwork and costs for existing Fountain Hills-based businesses; to authorize the Town Manager or designee to extend previously approved Development Services permits and approvals for up to six months for the purpose of helping developers, contractors and homeowners to complete projects that may have been delayed due to the effects of COVID-19; to authorize the Town Manager or designee to issue a Temporary Use Permit (TUP), where possible, to allow for the extension of premises at businesses in order to overcome diminished occupancy/capacity as a result of social distancing requirements; to authorize the Town Manager or designee to relax enforcement of Temporary Signage until December 31, 2020, in order to support businesses; to authorize the Town Manager or designee to create a business assistance program and provide up to $300,000 in future funding to assist Fountain Hills businesses, and make the necessary budget transfers from General Administration to Economic Development, to the extent consistent with state law and in accordance with guidance and direction from state officials.    Vice Mayor Scharnow asked how they could allow the temporary signs if they are changing the rules. Councilmember Tolis said that this could be a stimulus. Councilmember Magazine asked when the Sign Ordinance would be coming before Council. Mr. Miller said that they will have a workshop on the new Sign Code on September 1 and probably bring back an ordinance for action at the first meeting in October. They could make it effective on January 1, 2021. Mayor Dickey cautioned business owners to not spend a lot of money on signage that would not be permitted once the new Sign Ordinance goes into effect.    Vote: 7 - 0 Passed - Unanimously   F.CONSIDERATION OF Acceptance of the CopperWynd Art Donation, contingent upon structural review by engineer.       Community Services Director Rachael Goodwin said that this is the first request to come to Council since the new Public Art Master Plan was adopted. She said that they have done major renovations with a construction cost of around $33 million, which comes out to a $168,000 outlined for a contribution. In lieu of a contribution, they are proposing a serpentine pavilion. She said that it is intended to be a wait station for hiking and biking. It will be lit in the evenings and consist of a bike rack, misting system, trail maps, and pump station for bike tires. It has gone before the Public Art Committee and was unanimously approved. She said that based on the Town's policy, it is on private property so it will be maintained and insured by the property owner, but it would be part of the public art collection. Councilmember Magazine said that he would support this, but he has real reservations about these being allowed on private property. Mr. Miller said that they do typically have all of the public art collection on Town property, insured and annually cleaned. There is a clause back that they have to give it back to the Town if they want to dispose of it. Ms. Goodwin said that they do have a number of pieces on private property. Dori Wittrig with the Public Art Committee said that they are planning on making this a very public offering, and restrooms would be available to the public inside their campus.    MOVED BY Vice Mayor Mike Scharnow, SECONDED BY Councilmember Sherry Leckrone Town Council Regular Meeting of June 16, 2020 11 of 16  MOVED BY Vice Mayor Mike Scharnow, SECONDED BY Councilmember Sherry Leckrone (telephonically) to accept the CopperWynd Art Donation, contingent upon plan review and recommendations.  Vote: 7 - 0 Passed - Unanimously   G.CONSIDERATION OF the proposed Fountain of Light Sculpture as a way of recognizing past and future Mayors of Fountain Hills.       Mayor Dickey declared a conflict of interest and recused herself from discussion. Mr. Miller said that after the Council recently directed staff to research ideas for developing a Mayor's Walk, or other recognition of past, present and future mayors, they got a communication from Jenny Winnegrod with a clever proposal to use the Fountain of Light sculpture. She said that members of the Public Art Committee are present, as well as the artist. She showed a rendering of the sculpture, the base of which would accommodate 27 spaces with 8 x 10 plaques. It would be lit in the evening and commemorate the 50 years of the fountain as well. She said that the Public Art Committee has requested $50,000, the rest being funded through donations. The Fund currently has $168,000 of which the policy states two years' worth of maintenance and insurance, totaling $80,000, which would leave a balance of $82,000. Councilmember Spelich asked if at any time this would become a cost to the Town. Staff replied it would not. Mr. Miller said that they see this as a win/win. The Fountain of Light was originally designed to commemorate the 50th year of the fountain, but it was highly likely that they could not fund the entire cost through donations. Councilmember Brown said that he liked the idea. Staff came up with a great idea. It would be a nice addition to the Avenue.    MOVED BY Councilmember Dennis Brown (telephonically), SECONDED BY Councilmember Art Tolis to approve the expenditure of $50,000 from the Public Art Fund to contribute to the Town Council approved Fountain of Light sculpture which will recognize past and future mayors of Fountain Hills (and approve two years' worth of insurance and maintenance).  Vote: 6 - 0 Passed   H.CONSIDERATION OF proposed traffic measures to improve pedestrian and traffic safety in Fountain Hills.       Mr. Weldy said that the Pedestrian and Traffic Safety Committee met on June 4, 2020, to review progress on a number of traffic and pedestrian related matters. During the meeting staff provided additional information on traffic-related items that had been discussed previously by the committee. Based on direction at the meeting, staff is bringing forth three traffic safety recommendations from the Pedestrian and Traffic Safety Committee to the Town Council. The committee’s recommendations are as follows: • Reducing the speed limit on Palisades (Shea to Golden Eagle) from 45-MPH to 40-MPH. The design speed limit for Palisades was set at 40 MPH when the roadway was built. The Town Council at that time asked the Town Engineer to raise the speed limit to 50 Town Council Regular Meeting of June 16, 2020 12 of 16 MPH, but after reconsideration, the Town Council approved a speed limit of 45-MPH. Due to concerns about speeding from residents who live in neighborhoods adjacent to Palisades, the Pedestrian and Traffic Safety Committee is recommending this change. • Implementing a zero-tolerance speed limit enforcement policy in designated safety corridors. Safety corridors are special segments of roadway that have been identified by both engineering and data analysis to be either high pedestrian/vehicle or vehicle/vehicle conflict zones. The primary cause of the issues are driver behavior in the form of speeding, aggressive driving, impairment and distracted driving. School zones, for instance, would be designated as safety corridors, as well as other major street segments throughout the community. • Installing right turn red light cameras in the south bound intersection at Palisades and Shea. The intersection of Palisades and Shea has created problems over the years due to a prohibition on right turns when the traffic signal is red from south bound Palisades to west bound Shea. There has been a noticeable reduction in violations after the signs were changed from right on green only, to No Turn on Red. Despite this improvement, motorists continue to make right turns in the intersection without first stopping at the red light. Staff has been in touch with a vendor about this technology and will have additional information about the cost and logistics for a red light, right turn camera system. Councilmember Spelich voiced concern with mandatory zones taking away the discretion of officers. Captain Kratzer said that they talked about both safety corridors and zero tolerance. He said that whatever they choose may impact their court order regarding traffic stops and outcomes being scrutinized. There may be some implications that need to be researched further. Vice Mayor Scharnow asked if a safety corridor would be a permanent thing. Mr. Weldy said that there are some areas, such as Saguaro, El Lago and Palisades, where they would have a permanent corridor. They would do an outreach to educate the motorists for that. They would recommend that the school zones be a zero tolerance area. Councilmember Spelich strongly suggested that they think about zero tolerance zones, or safety zones, where fines are doubled. Mayor Dickey said that they were pretty settled on corridors. There are a lot of problems at intersections, such as Sunflower and La Montana, but they believe that people going slower will help alleviate some of that. Councilmember Brown said that he totally agreed with Councilmember Spelich. He was actually the one that brought up zero tolerance. At the last meeting they talked about safety corridors and he believes that the safety corridor, with higher fines, will spread through the neighborhood and assist in slowing traffic down at intersections. Councilmember Spelich said that he totally agreed with the red light camera on Palisades and Shea. He said that they should have Mr. Arnson explore some issues as he knows they have to have notice and postings. Councilmember Brown said that he was in Sedona a few weeks ago and they have the big red circle with a line through it at the stop light. If they are going to do a camera, they need to at least give the people that cannot read notice. Mayor Dickey said that Vice Mayor Scharnow had previously mentioned stacking at the signal in front of Safeway. She said that with the traffic slow right now, they are going to wait on that. Town Council Regular Meeting of June 16, 2020 13 of 16    MOVED BY Councilmember David Spelich, SECONDED BY Councilmember Alan Magazine to approve the reduction of the speed limit on Palisades (Shea to Golden Eagle) from 45-MPH to 40-MPH; implement a Zero Tolerance Speed Limit Enforcement Policy in designated safety corridors; and exploring the cost to install, maintain and operate Right Turn Red Light cameras, with proper signage.  Vote: 7 - 0 Passed - Unanimously    Staff indicated that they would bring these matters back for further consideration at the August 24, 2020, Council Meeting.   I.CONSIDERATION OF approving a Professional Services Agreement with Visus Engineering Construction, Inc. to construct a roundabout at the intersection of La Montana and Avenue of the Fountains.       Mr. Weldy said that the Avenue of the Fountains/La Montana intersection has been a difficult intersection for vehicles to traverse since the early 1990’s. The primary cause of the issue is the wide median on Avenue of the Fountains which creates an extremely large intersection footprint. After CK Engineering was contracted by the town to evaluate and develop possible design concepts to mitigate the traffic issues at the intersection, the Town Council selected the roundabout alternative. CK Engineering recently completed the construction design and engineered documents so the Town could seek qualified bids for the project. Due to the very wide median on Avenue of the Fountains, the roundabout’s central island will be elliptical, with its long direction along La Montana. The Town published an Invitation For Bids (IFB) on April 29, 2020, on the Town website and in the Fountain Hills Times on April 29 & May 5, and the Arizona Business Gazette on April 30 & May 6, 2020. Visus Engineering Construction, Inc. was the responsive low bidder with a bid of $569,000. An owners' allowance in the amount of $85,000 is included and results in a project total of $654,000. The funding for the owner's allowance, if needed, is at the sole discretion of the town and will be used for unforeseen issues should they arise.    Councilmember Tolis asked if they had any statistics regarding accidents at these. Councilmember Magazine said that he remembered when they first started talking about this that several articles indicated that the incidents of accidents were significantly lower. Councilmember Brown said that they have been talking about this for the last ten years and he is in full support of moving forward. Bob Shelstrom, Fountain Hills, voiced concern with increased endangerment of pedestrians with roundabouts. Mr. Weldy said that they would use some of the CIP from this year to begin the project and the rest would come from next year's budget. Mr. Miller added that back when they approved the design the Council had also given approval to use some of the Downtown Fund to assist with the costs. Mayor Dickey said that she disagreed that the pedestrian crossings with the proposed roundabout would not be safe. She said that what is there now, which she uses often, is not safe. A one-way road with safety islands will be much safer for pedestrians. Town Council Regular Meeting of June 16, 2020 14 of 16 Vice Mayor Scharnow said that he voted no on the original vote for the design as it was expensive, but he believes it will be a good addition to the overall plan for the Town.    MOVED BY Councilmember Dennis Brown (telephonically), SECONDED BY Councilmember Sherry Leckrone (telephonically) to approve Professional Services Agreement 2020-087 with Visus Engineering Construction, Inc. for the LaMontana Roundabout (in the amount of $569,000, an owner's allowance of $85,000, and the associated budget transfer for fiscal year 20-21 in the amount of $300,000).  Vote: 6 - 1 Passed  NAY: Councilmember David Spelich    A break was taken from 9:12 p.m. to 9:17 p.m.   J.CONSIDERATION AND APPROVAL of the 2020 Ten Year Pavement Management Program.       Mr. Miller said that a few years ago the Town's approach was to use zones for taking care of the Town's street needs. They found over time that has not met their needs. They contracted with IMS and through that process they determined PCI ratings. Mr. Weldy said that they have been at this for an incredible amount of time. He said that with the zone approach the challenge was the funding and they fell way behind. He said that it was important to know that what is being brought forward tonight is based on accurate data. They have continued to input the ongoing work that has been done as that drives down their overall cost for the future. He said that once this plan is adopted, it will not include the next fiscal year; it will take a considerable amount of planning and communication with citizens on the best way to fund it. The soonest it could be brought to the voters is November 2022. He said that in August MR Tanner will continue the Pavement Management Plan they are currently following. Zac Thomason from IMS then reviewed a PowerPoint presentation, attached hereto as Exhibit A. Councilmember Magazine said that they should go for a bond. He asked how long it would take to spend $30 million. Mr. Weldy said that it will take the majority of those years to spend that money, along with the money allotted annually. He said that the numbers are today's numbers. They do not have an escalation factor. As they move forward it is difficult to predict what the costs will be. He said that while decisions are being made and they are providing additional information for decision making, they will continue the old pavement management with the fund they currently have and they will continue to reduce some of the backlog. Councilmember Magazine asked why they did not include an escalation factor. Mr. Miller said that they have never gotten this far at all. They have identified what the needs are and they will come back with a strategy. They will have to refine this as time goes on and come back periodically to put in cost escalators. Mr. Weldy said that they did not want to provide any misleading information. Mayor Dickey said that they are not talking about how to fund anything tonight. She said that bonding is not going to be the end all or be all. Mr. Miller said that the plan before them Town Council Regular Meeting of June 16, 2020 15 of 16 that bonding is not going to be the end all or be all. Mr. Miller said that the plan before them was based on $2.5 million a year. They do not know what the future holds. He said that Zac is going to help them figure out more of the cost escalation at the committee level. Councilmember Spelich said that messaging is going to be the most important part of the plan. Zac's knowledge and ability to break this down is an intricate part of the messaging. Bob Shelstrom, Fountain Hills, said that they do not know these numbers. They cannot determine PCI with 100% accuracy. He said that this is an adherent uncertainty. All the work in the maintenance is not legal to be bonded for.    MOVED BY Councilmember David Spelich, SECONDED BY Councilmember Alan Magazine to approve the 2020 Ten Year Pavement Management Program and direct staff to return to the Town Council at a future date to address funding options and other strategies to implement the plan.  Vote: 7 - 0 Passed - Unanimously   9.COUNCIL DISCUSSION/DIRECTION to the TOWN MANAGER Item(s) listed below are related only to the propriety of (i) placing such item(s) on a future agenda for action, or (ii) directing staff to conduct further research and report back to the Council.    None   10.ADJOURNMENT    The Regular Meeting of the Fountain Hills Town Council of June 16, 2020, adjourned at 9:52 p.m.     TOWN OF FOUNTAIN HILLS ____________________________ Ginny Dickey, Mayor ATTEST AND PREPARED BY: ______________________________ Elizabeth A. Burke, Town Clerk CERTIFICATION I hereby certify that the foregoing minutes are a true and correct copy of the minutes of the Regular Meeting held by the Town Council of Fountain Hills in the Town Hall Council Chambers on the 16th day of June, 2020. I further certify that the meeting was duly called and that a quorum was present. ____________________________ Elizabeth A. Burke, Town Clerk Town Council Regular Meeting of June 16, 2020 16 of 16 TOWN OF FOUNTAIN HILLS MINUTES OF THE SPECIAL MEETING OF THE FOUNTAIN HILLS TOWN COUNCIL JUNE 19, 2020            1.CALL TO ORDER AND PLEDGE OF ALLEGIANCE – Mayor Dickey    Mayor Dickey called the Special Meeting of June 19, 2020, to order at 3:00 P.M. and led the Council and audience in the Pledge of Allegiance.   2.ROLL CALL – Mayor Dickey Present: Mayor Ginny Dickey; Vice Mayor Mike Scharnow; Councilmember Art Tolis; Councilmember Sherry Leckrone (telephonically); Councilmember Dennis Brown (telephonically); Councilmember Alan Magazine; Councilmember David Spelich (telephonically) Staff Present: Town Manager Grady E. Miller; Town Attorney Aaron D. Arnson; Town Clerk Elizabeth A. Burke 3.CONSIDERATION OF Adopting Order 2020-01 mandating the wearing of face coverings in public.       Town Manager Grady Miller said that on June 17, 2020, Governor Ducey issued Executive Order 2020-40 entitled “Containing the Spread of COVID-19” that authorized cities and towns to require the wearing of face coverings in public in order to limit the spread of COVID-19. The Centers for Disease Control and Prevention, the Arizona Department of Health Services, and the Maricopa County Disease Control Division all currently recommend the use of face coverings in public settings to slow the spread of COVID-19. Pursuant to A.R.S. § 26-307, Town Code Section 2-1-2, and Executive Order 2020-40, the Town Council has the authority to issue an Emergency Order to require the wearing of face coverings in public. He then reviewed the requirements of the proposed order, noting that there were a number of exceptions. The following individuals then addressed the Council in opposition to the proposed order: •Gerry Friedel •Brandon Wise •DiVina Gallatin, retired health care worker •David Kaufmann •Trent Heidtke •Kirk Kaiser •Debra Thorne Comments included: •Consider what the local businesses have been through already. •People get it; they can wear a mask if they want to avoid a situation. •How would it be enforced? •Please stop making decisions based off of fear. •The Mayor and Council are the leaders. •COVID-19 is here and it is highly contagious; just like the flu, it will not go away. •They have all been exposed to the flu; they are going to be exposed to it. •Essential workers have been working at least 40 hours a week; people are not dropping like flies. •When unhealthy people get it, it is going to hurt them harder. •Freedom-loving Americans are standing up. •If someone needs a mask, put one on. •It is hard to breath in one's own toxins. •When they breathe back in, they are causing their immune systems to break down. •This problem goes to their democracy; they are defending their freedoms. •Does not know of anyone who has died from the virus. •Does anyone on the Council know someone personally that has died? •How many have died of this in Fountain Hills? •This is going to touch every person in town--kids, adults, old people. •Is the Town going to buy the masks if they are mandating? •Hears that the hospitals are overflowing, but St. Lukes Hospital spent over $4 million to rehab it for COVID ICU and it sits empty today. •It wreaks of a scam; number playing here and there. •This is another example of overreaching of government. •Where does this end? •He won't wear a mask. •Agrees with other comments made. •Only reason for more cases is because of more testing and the seasonal weather and sunshine. •The CDC does not recommend wearing a mask unless at the grocery store or gas station. •Mask wearing is a personal choice. •It is hampering business activity. •Give them credit--let them make their own decisions. •She is 57 and had cancer ten years ago which went into her lymph nodes. She does not take vaccines, flu shots, and she chooses to not eat meat. She runs the Brooklyn Bedding store and it will probably be closing soon. •There is nothing she can do to fight hysteria. •Knows a lady in her 70's who cannot hear, and she needs to be able to read lips. The following individuals addressed the Council in support of the proposed order: •Diane Price, with ASU scientific research team. Comments included: •As a person who spends a lot of money in town, she has sent far less because they were not wearing a mask. •By mandating this, they take the business owner out of the political situation. Ms. Burke reported that they also received over 15 written comments in support of the order (Peter Oliveira; Kristi Densford; Sandra Wimmer; Robert Rican; Thomas Miller; Laine Lambright; Lisa Fields; Chelsea Miller; Erwin Wimmer; Christine Freseman; Don and Irene Beauvais; (Patricia Presley-Spade; Lisa Miller; Linda Fraser; Sylva Leduc; Deborah Dresslar) and 2 against (Lori Jablonsky; Mrs. Dawn Baker), copies of which she had placed at the Council's dais. Mayor Dickey reported that they got a lot of input and e-mails. She received 95 in support and 23 in opposition. Councilmember Tolis said that he got comparable numbers, but in the other direction. Town Council Special Meeting of June 19, 2020 2 of 5 Mayor Dickey said that she does not wear a mask because she is fearful; it is common practice to protect those around them. The Order is so that employees are protecting the customers, and the customers are protecting the employees. She had a long talk with a few different Chambers of Commerce. She is hoping that masks are uniformly recommended by county, state and federal governments. The Fountain Hills Chamber of Commerce endorses the order and she spoke with Jay Powell, the head of the Arizona Chamber of Commerce, and this is slowing the spread and supporting economic recovery. They all have a role to play.    Councilmember Magazine said that those that testified are 100% against the order. He respected all of them and most of what they said. He said that he would suspect that most of the people in the room also stop at signs, lights, etc. He asked if they obey the laws and ordinances and if it was a personal choice which ones to obey. He said that he keeps hearing that they do not have a problem in Fountain Hills, but it was reported at least 45 cases. In the Midwest states were saying they did not have a problem. Now, they have a big problem. He said that he agrees with the Mayor; wearing a mask is protecting everyone around you. The Republic reported 2,319 new cases in a single day, with 32 deaths reported on Thursday alone. Those in the 65 and older range made up 75 percent of deaths. With the average age in Fountain Hills as 60, they run a real risk if they ignore this and assume it will go away. Councilmember Tolis said that this will be one of the most difficult decisions they will make--forcing someone to wear a mask when there is plenty of evidence that it could make them sicker. He said that if he sees someone that is fragile, he will not be a jerk and will put on a mask. He believes in being respectful to others. He said that he is against this; he will not force people to wear masks. Councilmember Leckrone said that there is no reason to insult anyone. They are in a situation that has an equal counterpoint. She has heard from people for and against it, both using science to support their position. She said that this is the least restrictive. It is a temporary measure; it is not forever. She said that hospitals, airports, courthouses are all requiring masks. It is not just Fountain Hills. Many other towns and cities are requiring masks and they have to make a decision for the whole town. She said that she is recognizing that it is a tough decision. Vice Mayor Scharnow said that he agreed with everything that Councilmember Leckrone said, but it is going to be impossible to enforce it. He does not want to put the Sheriff's Office on the spot. The public shaming going on should not happen. He thinks it is important that as a Town they urge people to take precautions. He said that they have heard from some and received emails from others that they will not wear a mask. He said that people should wear them when they go into crowded spaces, and he will start wearing them more, but he cannot support this. Councilmember Spelich said that he found it funny that they called a special meeting as it has become such an urgent matter. He believes that the citizens in Fountain Hills that are vulnerable with preexisting conditions have made it a point to stay home and have family and friends help them. He said that they are in a crucial point, a slippery slope, of how far the government goes in mandating things. He said that the onus is on everyone on whether to wear a mask; it is everyone's individual liberty. He reminded the Council about all the calls and emails they received when restaurants were not following the guidelines. He could only imagine what the call volume would be if this was mandated. He said that he would not support it either. Councilmember Brown complimented those that came to the microphone and he appreciated every comment from the public and the Council. He said that he truly believes that this is not needed; he does not believe the Council should be dictating to the Americans that have listened for four months on how to social distance. He has read articles on both sides. Masks will do Town Council Special Meeting of June 19, 2020 3 of 5 for four months on how to social distance. He has read articles on both sides. Masks will do more harm, especially if someone is susceptible or under the weather. He believes it is a scare tactic--a tactic that is borderline socialistic. He has not had the flu in 15 years. He washes his hands and takes a shower every night. He said that he is not buying the mask thing at all. He said that he will not support any aspect of this order. The following individuals spoke in favor of the order: •Pat Pistello •Kellie Williams •Teri Crain •Everett Rosenbauer Comments included: •Does not understand why everyone is so afraid to wear a mask. •She is 75 years old and has high blood pressure •Went to restaurant, two servers and a cook were not wearing a mask •People are wearing masks because the virus spreads through saliva, speaking, coughing, etc. •They have been wearing masks, but now she is seeing less and less wearing them •She was in a hospital to be tested as she thought she had it; was told to keep a mask on around people. •She did not want to go back into Fountain Hills. •Has been here for 18 years and she takes care of her parents. •It is a matter of laws vs. freedoms. •Her son was in an automobile accident last August. He is 17 years old and his friend chose to not wear a seat belt; he lost his life. •Her son is now being charged with manslaughter and endangerment. •Freedoms have their costs. •It saddens him to be back up before the Council. He is grateful that there are three others (on Council) wearing masks. •They are setting an example as their leaders. As soon as he found out he sent the Mayor a letter; he should have forwarded it to all of them. •He asked in the letter to step up and continue to be that example The following individual spoke in opposition to the order: •Kelly Splittorff Comments included: •She used to work at a hospital and has lived in Fountain Hills for 17 years. •She has watched swine flu, anthrax, bird flu, etc.; this is overblown. •The hospitals are built to be full. •There is no data locally, yet they want to squash their freedoms. •She votes and it is wrong to even have this as a debate. •If someone feels sick they should stay home.    MOVED BY Councilmember Art Tolis, SECONDED BY Councilmember Dennis Brown (telephonically) to call for the question.  Vote: 5 - 2 Passed   Town Council Special Meeting of June 19, 2020 4 of 5  NAY: Mayor Ginny Dickey  Councilmember Alan Magazine    MOVED BY Councilmember Art Tolis, SECONDED BY Councilmember Dennis Brown (telephonically) to deny the request to issue an order requiring masks.  Vote: 4 - 3 Passed  NAY: Mayor Ginny Dickey  Councilmember Sherry Leckrone (telephonically)  Councilmember Alan Magazine   4.ADJOURNMENT    MOVED BY Councilmember Art Tolis, SECONDED BY Councilmember Alan Magazine to adjourn.  Vote: 7 - 0 Passed - Unanimously    The Special Meeting of the Fountain Hills Town Council held June 19, 2020, adjourned at 4:20 p.m.     TOWN OF FOUNTAIN HILLS ____________________________ Ginny Dickey, Mayor ATTEST AND PREPARED BY: ______________________________ Elizabeth A. Burke, Town Clerk CERTIFICATION I hereby certify that the foregoing minutes are a true and correct copy of the minutes of the Special Meeting held by the Town Council of Fountain Hills in the Town Hall Council Chambers on the 19th day of June, 2020. I further certify that the meeting was duly called and that a quorum was present. DATED this 24th day of August, 2020. _________________________________ Elizabeth A. Burke, Town Clerk Town Council Special Meeting of June 19, 2020 5 of 5 ITEM 7. B. TOWN OF FOUNTAIN HILLS STAFF REPORT    Meeting Date: 08/24/2020 Meeting Type: Town Council Special Meeting Agenda Type: Consent Submitting Department: Public Works Prepared by: Randy Harrel, Town Engineer Staff Contact Information: Justin Weldy, Public Works Director Request to Town Council Special Meeting (Agenda Language):  CONSIDERATION OF adopting Resolution 2020-35, abandoning a portion of the 10' Public Utility and Drainage Easement at the rear of Plat 505A, Block 2, Lot 9. (EA 2020-06) Staff Summary (Background) Applicant: Mike Grosstick Owner: John Blackman Property Location: 15529 E. Richwood Avenue (Plat 505A, Block 2, Lot 9) The applicant has requested to abandon the pre-incorporation 10' Public Utility and Drainage Easement at the southerly (rear) edge of this lot (15529 E. Richwood Avenue).  The applicant has indicated his intent to construct a retaining wall/fence/railing to enclose most of the rear yard. Staff reviewed the site to determine any on-site drainage issues in addition to the Town's general interest in the easement. There is no need for the Town to retain the drainage easement proposed to be abandoned, with the understanding that the owners of this lot are required to pass the developed drainage flows generated by the upstream lots across their property.  Utility approval letters for this abandonment have been received from all utility companies. Related Ordinance, Policy or Guiding Principle N/A Risk Analysis N/A Recommendation(s) by Board(s) or Commission(s) N/A  Staff Recommendation(s) Staff recommends adoption of Resolution 2020-35. SUGGESTED MOTION MOVE to adopt Resolution 2020-35. Attachments Vicinity Map  Aerial Photo Map  Res 2020-35  Exhibit A Map  Form Review Inbox Reviewed By Date Town Clerk Elizabeth A. Burke 08/03/2020 08:01 AM Development Services Director John Wesley 08/03/2020 11:17 AM Town Attorney Aaron D. Arnson 08/03/2020 03:38 PM Town Manager Grady E. Miller 08/04/2020 10:28 AM Form Started By: Randy Harrel Started On: 06/02/2020 03:35 PM Final Approval Date: 08/04/2020  BEELIN E H W Y SHEA BLVD PAL I S A D E S B L V D SAGUARO BLVD SAG U A R O B L V D PALISA D E S B L V D PALISA D E S B L V D SA G U A R O B L V D FO U N T A I N H I L L S B L V D McDOWELL M O U N T A I N R D F O U N T A I N H I L L S B L V D SUN R I D G E D R EL L A G O B L V D AVENU E O F T H E FOUN T A I N S PAN O R A M A D R FI R E R O C K C O U N T R Y C L U B D R EAG L E M O U N T A I N PK W Y CR E S T V I E W D R PAL O M I N O B L V D SIERRA M A D R E GRANDE BL V D G O L D E N E A G L E B L V D E A G L E R I D G E D R E A G L E R I D G E D R VICINITY MAP TOWN OF FOUNTAIN HILLS NORTH SCALE: 1" = 3500' All that is A r i z o n a F O U N T AIN HI L L S TOWN OF INC. 1989 TOWN HALL DEVELOPMENT SERVICES DEPARTMENT SCOTTSDALE McDOWELL MOUNTAIN PARK FO R T M c D O W E L L Y A V A P A I N A T I O N SALT RIVER PIMA MARICOPA INDIAN COMMUNITY TOWN BOUNDARY SCOTTSDALE 15529 E RICHWOOD AVE DEVELOPMENT SERVICES All that is A r i z o n a F O U N T AIN HI L L S T OWN OF INC. 1989 AERIAL PHOTO MAP PLAT505A, BLOCK 2 LOT 9 15529 E RICHWOOD AVE LEGEND: ABANDON 10' P.U.E. & D.E. RICHWOOD AVE O V E R L O O K C T RETAIN 10'X10' P.U.E. & D.E. RESOLUTION 2020-35 A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, ABANDONING WHATEVER RIGHT, TITLE, OR INTEREST IT HAS IN A PORTION OF THE 10’ PUBLIC UTILITY AND DRAINAGE EASEMENT LOCATED AT THE REAR OF PLAT 505A, BLOCK 2, LOT 9, (15529 E RICHMOND AVENUE) FOUNTAIN HILLS, ARIZONA, AS RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF MARICOPA COUNTY, ARIZONA, RECORDED IN BOOK 158, PAGE 40 OF MAPS RECITALS: WHEREAS, the Mayor and Council of the Town of Fountain Hills (the “Town Council”), as the governing body of real property located in the Town of Fountain Hills (the “Town”), may require the dedication of public streets, sewer, water, drainage, and other utility easements or rights-of-way within any proposed subdivision; and WHEREAS, the Town Council has the authority to accept or reject offers of dedication of private property by easement, deed, subdivision, plat or other lawful means; and WHEREAS, all present utility companies have received notification of the proposed abandonment. ENACTMENTS: NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, as follows: SECTION 1. That a portion of the 10’ public utility and drainage easement located at the rear of Plat 505A, Block 2, Lot 9, (15529 E Richmond Avenue), Fountain Hills, as recorded the Office of the County Recorder of Maricopa County, Arizona, Book 158 of Maps, Page 40, is hereby declared to be abandoned by the Town as shown in Exhibit A. Certain lots within this subdivision are subject to lot-to-lot drainage runoff. The property owner is required to pass the developed flows generated by the upstream lots across their property. SECTION 2. That this Resolution is one of abandonment and disclaimer by the Town solely for the purpose of removing any potential cloud on the title to said property and that the Town in no way attempts to affect the rights of any private party to oppose the abandonment or assert any right resulting there from or existing previous to any action by the Town. PASSED AND ADOPTED BY the Mayor and Council of the Town of Fountain Hills this 24th day of August, 2020. FOR THE TOWN OF FOUNTAIN HILLS: ATTESTED TO: Ginny Dickey, Mayor Elizabeth A. Burke, Town Clerk REVIEWED BY: APPROVED AS TO FORM: Grady E. Miller, Town Manager Aaron D. Arnson, Town Attorney ITEM 7. C. TOWN OF FOUNTAIN HILLS STAFF REPORT    Meeting Date: 08/24/2020 Meeting Type: Town Council Special Meeting Agenda Type: Consent Submitting Department: Community Services Prepared by: Jamie Salentine, Executive Assistant Staff Contact Information: Rachael Goodwin, Community Services Director Request to Town Council Special Meeting (Agenda Language):  CONSIDERATION OF Ratification of grant application submittal for Diamonds Back Youth Field Lighting at Four Peaks Park. Staff Summary (Background) Renovations for Four Peaks Park have been budgeted within the Capital Improvement Projects for FY 20/21. However, these improvements do not include funding to install new LED light poles in the park. In an effort to expand this project and include the ball fields, outside funding will be required. The Arizona Diamondbacks Foundation, a non-profit extension of the Major League Baseball team, works with Arizona communities to restore and build ball fields throughout the state. This annual grant program, known as the “Diamonds Back” Youth Field grant, is one potential option to expand restoration efforts in Four Peaks Park. This grant opportunity does not require matching funds, as it is based on need and project concepts. No funding from the Town is required if this grant is awarded. The foundation, along with industry partners such as APS and Musco, facilitates the entire project including construction solicitation, financial management, etc.   The grant application was due on July 31, 2020, and applicants will be notified of the award status by December 1, 2020. As staff was unable to present this item for consideration prior to the summer break, it is necessary for the Town Council to ratify the grant submission.   Related Ordinance, Policy or Guiding Principle Town of Fountain Hills Municipal Sponsorships and Naming Rights Policy. Risk Analysis N/A Recommendation(s) by Board(s) or Commission(s) N/A Staff Recommendation(s) Staff Recommendation(s) Staff recommends approval. SUGGESTED MOTION MOVE to Ratify authorization to submit a grant application to the “Diamonds Back” Youth Grant Program for ball field lighting at Four Peaks Park and authorize the grant acceptance and all steps necessary to implement if awarded the grant. Form Review Inbox Reviewed By Date Community Services Director Rachael Goodwin 08/11/2020 05:06 PM Finance Director David Pock 08/11/2020 05:10 PM Town Attorney Aaron D. Arnson 08/12/2020 04:06 PM Town Manager Grady E. Miller 08/12/2020 04:08 PM Form Started By: Jamie Salentine Started On: 08/04/2020 08:05 AM Final Approval Date: 08/12/2020  ITEM 8. A. TOWN OF FOUNTAIN HILLS STAFF REPORT    Meeting Date: 08/24/2020 Meeting Type: Town Council Special Meeting Agenda Type: Regular Agenda Submitting Department: Administration Prepared by: Elizabeth A. Burke, Town Clerk Staff Contact Information: Grady E. Miller, Town Manager Request to Town Council Special Meeting (Agenda Language):  CONSIDERATION OF Resolution 2020-36 declaring and adopting the results of the Primary Election held August 4, 2020. Staff Summary (Background) This resolution is presented to memorialize the results of the Primary Election held August 4, 2020, at which the seats of Mayor and three Councilmembers were considered.    Mayor   Ginny Dickey   6,465   Councilmember Gerry Friedel             5,729 Councilmember Sharron "Blue" Grzybowski 5,303 Councilmember Peggy McMahon 5,539 For this election, the Town had 17,305 registered voters, with a return of 9,038 ballots, resulting in a 52.23% turnout. In accordance with Section 2-3-3 of the Fountain Hills Town Code, a majority of votes cast for each office was received and no General Election will be necessary. Related Ordinance, Policy or Guiding Principle N/A Risk Analysis N/A   Recommendation(s) by Board(s) or Commission(s) N/A Staff Recommendation(s) Staff recommends that the Town Council adopt Resolution 2020-36.  SUGGESTED MOTION MOVE to adopt Resolution 2020-36. Attachments Res 2020-36  Form Review Inbox Reviewed By Date Finance Director David Pock 08/12/2020 07:00 AM Town Attorney Aaron D. Arnson 08/12/2020 04:05 PM Town Manager Grady E. Miller 08/12/2020 04:09 PM Form Started By: Elizabeth A. Burke Started On: 08/03/2020 08:33 AM Final Approval Date: 08/12/2020  RESOLUTION NO. 2020-36 A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, DECLARING AND ADOPTING THE RESULTS OF THE PRIMARY ELECTION HELD ON AUGUST 4, 2020 RECITALS: WHEREAS, the Town of Fountain Hills (the "Town") held a primary election on the consolidated election ballot of August 4, 2020, (the "Primary Election"), for the nomination/election of the Mayor and three Councilmembers; and WHEREAS, the Primary Election returns have been presented to and have been canvassed by the Mayor and Council of the Town of Fountain Hills. ENACTMENTS: NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS as follows: SECTION 1. That the recitals above are hereby incorporated as if fully set forth herein. SECTION 2. That the total number of registered voters was 17,305; that the total number of ballots cast at the Primary Election was 9,038; and that the total rate of return was 52.23%. SECTION 3. That the number of votes cast and the names for the persons voted for, including the number of votes received in each precinct by each candidate for Mayor and each candidate for Councilmember were as set forth in Exhibit A, attached hereto and incorporated herein by reference. The number of provisional ballots in each precinct was as set forth in Exhibit B, attached hereto and incorporated herein by reference. The number of ballots rejected in each precinct was as set forth in Exhibit C, attached hereto and incorporated herein by reference. SECTION 4. It is hereby found, determined and declared of record, that the following candidates for Mayor and Councilmember did receive the majority number of votes cast for said office at the Primary Election, and the Town Clerk is hereby directed to issue certificates of election: Mayor: Ginny Dickey 6,465 Councilmember: Gerry Friedel 5,729 Sharron “Blue” Grzybowski 5,303 Peggy McMahon 5,539 RESOLUTION 2020-26 PAGE 2 SECTION 5. It is further found, determined and declared that each of the above candidates did receive a majority of votes cast as determined by Town Code 2-3-3; and therefore, a General Election is not required to be held. SECTION 6. This Resolution shall be in full force and effect immediately upon its adoption. SECTION 7. The Mayor, Town Manager, Town Clerk and Town Attorney are hereby authorized and directed to take all steps necessary to carry out the purpose and intent of this Resolution. PASSED AND ADOPTED by the Mayor and Council of the Town of Fountain Hills, Arizona this 24th day of August, 2020. FOR THE TOWN OF FOUNTAIN HILLS: ATTESTED TO: Ginny Dickey, Mayor Elizabeth A. Burke, Town Clerk REVIEWED BY: APPROVED AS TO FORM: Grady E. Miller, Town Manager Aaron D. Arnson, Town Attorney Precinct Registered Voters Cards Cast Voters Cast % Turnout CITY Fountain Hills 0239 FOUNTAIN HILLS 2,749 1,493 1493 54.31% 0240 FOUR PEAKS 4,133 1,965 1965 47.54% 0264 GOLDEN EAGLE 3,985 2,165 2165 54.33% 0470 PALISADES 2,848 1,515 1515 53.20% 0559 SAGUARO 3,590 1,900 1900 52.92% Fountain Hills - Total 17,305 9,038 9,038 52.23% CITY - Total 17,305 9,038 9,038 52.23% FINAL OFFICIAL RESULTS STATEMENT OF VOTES CAST Primary Election Maricopa County August 4, 2020 8/12/2020 4:21:42 PMPage: 1 of 4 Fountain Hills-Mayor (Vote for 1) **** - Insufficient Turnout to Protect Voter Privacy Precinct Re g i s t e r e d Vo t e r s Un d e r v o t e s Ov e r v o t e s CITY Fountain Hills 0239 FOUNTAIN HILLS 2,749 367 0 0240 FOUR PEAKS 4,133 439 2 0264 GOLDEN EAGLE 3,985 537 0 0470 PALISADES 2,848 325 0 0559 SAGUARO 3,590 454 1 Fountain Hills - Total 17,305 2,122 3 CITY - Total 17,305 2,122 3 Precinct DI C K E Y , G I N N Y (N O N ) Wr i t e - i n To t a l V o t e s CITY Fountain Hills 0239 FOUNTAIN HILLS 1,058 93.96% 68 6.04% 1,126 0240 FOUR PEAKS 1,417 92.98% 107 7.02% 1,524 0264 GOLDEN EAGLE 1,495 91.83% 133 8.17% 1,628 0470 PALISADES 1,121 94.20% 69 5.80% 1,190 0559 SAGUARO 1,374 95.09% 71 4.91% 1,445 Fountain Hills - Total 6,465 93.52% 448 6.48% 6,913 CITY - Total 6,465 93.52% 448 6.48% 6,913 8/12/2020 4:21:42 PMPage: 2 of 4 Fountain Hills-Councilmember (Vote for 3) **** - Insufficient Turnout to Protect Voter Privacy Precinct Re g i s t e r e d Vo t e r s Un d e r v o t e s Ov e r v o t e s CITY Fountain Hills 0239 FOUNTAIN HILLS 2,749 1,714 0 0240 FOUR PEAKS 4,133 2,338 1 0264 GOLDEN EAGLE 3,985 2,511 0 0470 PALISADES 2,848 1,623 1 0559 SAGUARO 3,590 2,130 0 Fountain Hills - Total 17,305 10,316 2 CITY - Total 17,305 10,316 2 Precinct FR I E D E L , G E R R Y (N O N ) GR Z Y B O W S K I , SH A R R O N " B L U E " (N O N ) CITY Fountain Hills 0239 FOUNTAIN HILLS 932 33.71% 874 31.61% 0240 FOUR PEAKS 1,171 32.95% 1,164 32.75% 0264 GOLDEN EAGLE 1,420 35.64% 1,228 30.82% 0470 PALISADES 991 33.95% 911 31.21% 0559 SAGUARO 1,215 34.03% 1,126 31.54% Fountain Hills - Total 5,729 34.12% 5,303 31.58% CITY - Total 5,729 34.12% 5,303 31.58% 8/12/2020 4:21:42 PMPage: 3 of 4 Precinct Mc M A H O N , PE G G Y (N O N ) Wr i t e - i n To t a l V o t e s CITY Fountain Hills 0239 FOUNTAIN HILLS 929 33.60% 30 1.08% 2,765 0240 FOUR PEAKS 1,172 32.98% 47 1.32% 3,554 0264 GOLDEN EAGLE 1,290 32.38% 46 1.15% 3,984 0470 PALISADES 968 33.16% 49 1.68% 2,919 0559 SAGUARO 1,180 33.05% 49 1.37% 3,570 Fountain Hills - Total 5,539 32.99% 221 1.32% 16,792 CITY - Total 5,539 32.99% 221 1.32% 16,792 8/12/2020 4:21:42 PMPage: 4 of 4 PRECINCT #0239 Counted Reason Code Description Count Yes A1 NEW RESIDENT BALLOT VERIFIED AND ADDRESS UPDATED 1 A7 ID ADDRESS DOESN'T MATCH SIGNATURE ROSTER 1 Total Yes 2 No B10 YOU ARE NOT REGISTERED TO VOTE 1 B12 YOU WERE NOT ELIGIBLE TO VOTE IN THIS ELECTION 2 Total No 3 PRECINCT #0239 TOTAL 5 PRECINCT #0240 Counted Reason Code Description Count Yes A7 ID ADDRESS DOESN'T MATCH SIGNATURE ROSTER 1 Total Yes 1 No B12 YOU WERE NOT ELIGIBLE TO VOTE IN THIS ELECTION 4 Total No 4 PRECINCT #0240 TOTAL 5 PRECINCT #0264 Counted Reason Code Description Count No B13 YOUR EARLY BALLOT WAS SENT. RETURNED AND COUNTED 1 Total No 1 PRECINCT #0264 TOTAL 1 Page 1 of 38/13/2020 12:02:12 PM Provisional Totals by Precinct - Canvass 1376 2020-08-04, Maricopa County, Aug 4 2020 Primary Election Town of Fountain Hills PRECINCT #0470 Counted Reason Code Description Count Yes A7 ID ADDRESS DOESN'T MATCH SIGNATURE ROSTER 2 Total Yes 2 No B12 YOU WERE NOT ELIGIBLE TO VOTE IN THIS ELECTION 3 Total No 3 PRECINCT #0470 TOTAL 5 PRECINCT #0559 Counted Reason Code Description Count No B13 YOUR EARLY BALLOT WAS SENT. RETURNED AND COUNTED 1 Total No 1 PRECINCT #0559 TOTAL 1 Page 2 of 38/13/2020 12:02:12 PM Provisional Totals by Precinct - Canvass 1376 2020-08-04, Maricopa County, Aug 4 2020 Primary Election Town of Fountain Hills Counted Reason Code Description Count Yes A1 NEW RESIDENT BALLOT VERIFIED AND ADDRESS UPDATED 1 A7 ID ADDRESS DOESN'T MATCH SIGNATURE ROSTER 4 Total Yes 5 No B10 YOU ARE NOT REGISTERED TO VOTE 1 B12 YOU WERE NOT ELIGIBLE TO VOTE IN THIS ELECTION 9 B13 YOUR EARLY BALLOT WAS SENT. RETURNED AND COUNTED 2 Total No 12 Cumulative Total:17 SUMMARY - ALL PRECINCTS Page 3 of 38/13/2020 12:02:12 PM Provisional Totals by Precinct - Canvass 1376 2020-08-04, Maricopa County, Aug 4 2020 Primary Election Town of Fountain Hills Precinct/CPC Number Precinct/CPC Name Reason Number Rejected FH FOUNTAIN HILLS Bad Signature 1 Returned Late 21 No Signature 21 Bad Signature Total 1 No Signature Total 21 Total Rejected 22 Returned Late Total 21 Total Rejected + Late 43 Page 1 of 18/13/2020 11:36:56 AM Early Voting Rejections By District Aug 4 2020 Primary Election ITEM 8. B. TOWN OF FOUNTAIN HILLS STAFF REPORT    Meeting Date: 08/24/2020 Meeting Type: Town Council Special Meeting Agenda Type: Regular Agenda Submitting Department: Public Works Prepared by: Justin Weldy, Public Works Director Staff Contact Information: Justin Weldy, Public Works Director Request to Town Council Special Meeting (Agenda Language):  CONSIDERATION OF Photo Enforcement at the Shea and Palisades intersection. Staff Summary (Background) At the June 16, 2020 Council meeting, staff brought forward a number of traffic safety recommendations including a photo enforcement option at the intersection of Palisades and Shea.  Because there wasn't sufficient time to provide additional details about a photo enforcement solution at the meeting, staff committed to returning with additional information including cost estimates at the Town Council meeting on August 24. The intersection of Palisades and Shea has experienced traffic-related issues over the years due cars speeding when driving down the hill southbound.  The speeding as well as a prohibition on right turns when the traffic signal is red from south bound Palisades to westbound Shea has contributed to the issues at this intersection. There has been a noticeable reduction in right turn violations after the signs were changed from right on green only, to No Turn on Red two years ago. Despite this improvement, motorists continue to speed and make right turns in the intersection without first stopping at the red light and waiting for a green light to turn right. A review of the intersection crash data for a two-year period (January 2018 – June 2020) recorded twenty vehicle-on-vehicle accidents at this intersection.  Of the twenty accidents, three occurred on the north-west corner of the intersection.  CK Engineering completed a traffic study of this intersection in the summer of 2017 and recommended that the current “No Turn on Red” restriction for the SB right-turn movement remain. Staff has been in touch with two vendors to obtain information about the use of photo enforcement at this location. The cost of installation, maintenance of all equipment and violation detection and evidence processing services, on average ranges from $3,500.00 to $5,500 per month. It’s important to note that the total cost is dependent on the vendor and contract negotiations.  Product literature from two widely recognized photo enforcement vendors is attached. Staff will seek Council direction at the Town Council meeting on August 24 regarding the concept of photo enforcement for right-turn movements at the Palisades and Shea intersection.  If Council is amenable to the proposed solution, then staff will initiate a Request for Proposal and bring back a contract for Town Council consideration at a later date.  If the Town Council is opposed to the concept, then staff will work with the Council Committee on Traffic and Pedestrian Safety on other possible alternatives to address concerns at this intersection location.   Related Ordinance, Policy or Guiding Principle Pedestrian and Traffic Safety. Risk Analysis NA Recommendation(s) by Board(s) or Commission(s) NA Staff Recommendation(s) Staff recommends Town Council direction on the use of photo enforcement at the southbound right turn lane at the intersection of Palisades and Shea Blvd. SUGGESTED MOTION MOVE to direct staff to initiate an RFP on photo enforcement for right turns at the southbound intersection at Palisades and Shea;  OR MOVE to direct staff to work with the Council Committee on Traffic and Pedestrian Safety in reviewing and recommending other alternatives to photo enforcement at this location. Fiscal Impact Fiscal Impact:TBD Budget Reference:Page 64 Funding Source:Streets Fund If Multiple Funds utilized, list here:NA Budgeted: if No, attach Budget Adjustment Form:NA Attachments Two year crash data  Redflex Proposal  Verra Mobility Proposal  Form Review Inbox Reviewed By Date Public Works Director (Originator)Justin Weldy 08/13/2020 11:14 AM Finance Director David Pock 08/13/2020 11:46 AM Town Attorney Aaron D. Arnson 08/14/2020 09:39 AM Town Manager Grady E. Miller 08/14/2020 09:56 AM Form Started By: Justin Weldy Started On: 08/12/2020 03:11 PM Form Started By: Justin Weldy Started On: 08/12/2020 03:11 PM Final Approval Date: 08/14/2020  Shea Blvd & Palisades Blvd 1/1/2018 - 6/1/2020 20 Crashes Clear 2/14/2018 8:10:00 PM 4/2/2018 6:55:00 AM 4/3/2018 9:50:00 AM 5/20/2018 2:10:00 PM 6/ 4 / 2 0 1 8 8 : 3 8 : 0 0 A M 8/21/2018 6:38:00 AM 8/ 2 5 / 2 0 1 8 1 1 : 2 4 : 0 0 P M 10/6/2018 6:14:00 PM 10/5/2018 7:56:00 AM 11/27/2018 2:39:00 PM 12/7/2018 9:52:00 AM 12 / 1 3 / 2 0 1 8 7 : 4 7 : 0 0 A M 12/27/2018 10:37:00 AM 3/ 8 / 2 0 1 9 6 : 0 0 : 0 0 P M 5/ 4 / 2 0 1 9 2 : 2 6 : 0 0 P M 5/22/2019 7:36:00 AM 6/11/2019 3:12:00 PM 8/5/2019 6:54:00 AM 9/20/2019 10:58:00 PM 10 / 1 7 / 2 0 1 9 1 0 : 2 0 : 0 0 A M (0) crashes could not be placed in this schematic Straight Stopped Unknown Backing Overtaking Sideswipe Parked Erratic Out of control Right turn Left turn U-turn Pedestrian Bicycle Injury Fatality Nighttime DUI Fixed objects: General Pole Signal Curb Tree Animal 3rd vehicle At fault vehicle Pd' Programming, Inc. 8/6/2020 Crash Magic Online Redflex Traffic Systems Inc. 5651 West Talavi Boulevard, Suite 200 Glendale AZ 85306-1893, United States Tel: +1 623 207 2000 Web: www.redflex.com August 13, 2020 Mr. Justin T. Weldy Public Works Director Town Fountain Hills of Fountain Hills 16705 E. Avenue of the Fountains Fountain Hills, AZ 85268 Dear Justin, Thank you again for the opportunity to provide the Town Fountain Hills with our proposal for red light enforcement camera system. Based on our conversation the proposal provides an overview of the technology we would deploy, operations of the program, processing of violations and customer support. Headquartered in Glendale, Arizona and Melbourne, Australia, with over 500 employees, Redflex has been working to reduce vehicle incidents and save lives for over 25 years through the ongoing development of a range of safety solutions. In fact, we have over 1,000 active traffic enforcement systems throughout the U.S. and an additional 2,500 throughout the world, helping to protect and improve the safety of all those who use the roadways. In the U.S., Redflex assists its government customers in road safety and enforcement campaigns by processing approximately 400,000 incidents per month on their behalf. Moreover, not only does our staff have a proven track record of providing solutions to organizations in the area of photo red light enforcement, but also in implementing, managing, and supporting programs of similar size and scope globally and within diverse environments. Redflex is prepared to provide a complete turn-key, all-inclusive red light enforcement program which is detailed in the throughout the proposal. Our solution includes the following features: • All necessary product hardware and software, including HD video technology • Installation and maintenance of all equipment for the life of the contract • Violation detection and evidence processing services, including issuance of warning notices, citations, and past due notices to the registered owners of violator vehicles • Partnership with NLETS and state DMVs • Custom back office and court interface • Printing and first-class mailing services • Accessible support 24/7 for Law Enforcement and Court personnel • Comprehensive reporting package, available 24/7 plus ad hoc • Online violator viewing portal, available 24/7 • Web-based applications for simplifying the violation review process for law enforcement • Law Enforcement, Violator, and Court Support Services including: o Multi-lingual, toll-free, customer service center o Expert witnesses for court testimony o Dedicated team allocated to assembling court documents for hearings Page | 2 of 10 Proprietary and Confidential • Dedicated Client Services Manager, including implementation specialists and trainers for law enforcement • Customized community education and awareness campaign throughout the life of the program • Operation of the video monitoring system in accordance with all applicable laws, including local ordinances • Ability to access our applications using iPads, iPhones, Android tablets, smart phones, and personal computers • Easy upgrade to speed enforcement at minimal cost There are no upfront costs to you at all. We are compensated for the service by the revenue generated from the program. The enabling law in Arizona allows for payment to be based on a flat fee per paid citation or a fixed flat monthly recurring charge per operational red light camera. We highly recommend the fixed flat monthly fee option. This option has historically been more acceptable to the general public because we are compensated regardless of the number of citations issued. If one citation or a hundred citations are issued, we are compensated the same fixed flat recurring monthly fee. There are several factors taken into consideration when determining the fixed flat recurring monthly fee such as length of the agreement, number of devices to be deployed and estimated number of violations. Prior to providing a solution quote we will need to have further discussions regarding the specifics of your program. Halo 2.0 System Overview Redflex proposes our latest traffic safety and red light enforcement system. Halo 2.0 not only will enforce illegal right hand turn violations but also enforce red light straight through violations. The Halo 2.0 system is the most recent advancement in enforcement technology in our product portfolio and will provide a high quality, high value solution for red light enforcement purposes. With advanced 3D HD radar, a LED flash, and low light and high-resolution cameras, the Halo 2.0 system will accurately detect vehicles. Halo 2.0 uses 3D high-definition radar (HDR) for non-intrusive vehicle detection to effectively cover up to six (6) lanes of traffic concurrently. This enables Halo 2.0 to be installed in locations where traditional enforcement systems fail due to complicated road configurations. The system features a single, highly sensitive HDR camera, and delivers exceptional low-light performance for night photography and all types of weather. Being a truly one-pole solution, Halo 2.0 is designed for quick and cost-effective installation, with minimal civil works. The Halo 2.0 Enclosure is lightweight and can be attached to existing infrastructure for ease of deployment. Page | 3 of 10 Proprietary and Confidential Halo 2.0 Enclosure The Halo 2.0 Enclosure contains the key detection components of the enforcement solution. • Radar detector • Single still image camera • High Definition video camera • LED flash illuminator The Halo 2.0 enclosure is mounted in both a rear and forward-facing orientation to capture vehicle license plates and identify drivers with photographic evidence. The inline flash illuminator reduces the need for additional poles reducing the cost and complexity of installation. Example of Typical Halo 2.0 Deployment Page | 4 of 10 Proprietary and Confidential System Imaging The camera system utilizes a digital camera, up to 45MP which has shown to be a significant step forward in image capture technology. The camera provides clear and sharp images in all light conditions (even extreme weather and lighting scenarios). Furthermore, when used in conjunction with the flash illuminator, the imaging solution provides clear images during both day and night operations. Within 1/100th of a second, when the light has changed to a steady red signal, the Redflex camera is active and ready to record the first image. When a driver commits a red light violation, the proposed Halo 2.0 digital camera system will capture images of both the front and rear of vehicle, along with photos of the scene, images identifying the driver, and supporting video. • Image 1 – Scene A Image: When a vehicle crosses the detection zone traveling too fast to stop at the designated stop line, the system will capture the first image of the violation. The image captured from the rear will show the vehicle prior to entering the intersection and its relationship to the violation line. • Image 2 – Scene B Image: The second image captured will be another rear shot of the vehicle, as it crosses the intersection during the steady red phase. • Image 3 – Face Image: The third image captured, taken from the front, will be of the vehicle’s driver. This camera will be set to take images at a time when the driver’s face can be clearly captured (after violators are in the intersection but before turning vehicles round the corner). • Image 4 – License Plate Image: The fourth image will show the rear of the offending vehicle with the license plate clearly visible and readable. This image is obtained from a cropped region of either image 1 or image 2. • Video Incident Capture: Video capture is delivered with a HD video camera. The high definition video provides additional evidence and context to captured violations. The HD video camera records six (6) seconds prior to the Scene A image and six (6) seconds following the Scene A image, providing the Fountain Hills with approximately 12 seconds of the violation. The video duration is customizable and can be increased or decreased upon the Fountain Hills’s request. Page | 5 of 10 Proprietary and Confidential Sample Images of Right Hand Turn Violation Image 1- Scene A Image 2 - Scene B Image 3 – Face Image Image 4 - License Plate Page | 6 of 10 Proprietary and Confidential Video Incident Capture Back Office Processing Functions- Alcyon® Redflex will use Alcyon® for our secure browser-based system for all back-office processing functions and only Fountain Hills’s authorized personnel may access the system. This repository for potential violations, provides clear images and video clips for review and approval or rejection by Fountain Hills’s Police Department. As an added benefit, access to the system can be made from either the Police Department office or via iPads, iPhones, and Android devices, as well as several internet browsers. Alcyon® is compatible with all browser, all platforms and all versions. Our Alcyon® back office solution is comprised of all the functionality required for processing incidents and to efficiently and effectively manage the entirety of an enforcement program. Its functions and services include, but are not limited to the following: • Real-Time Dashboards on Program Performance to Aid with Statistical Analytics • Incident Database Import • Incident Verification Processing • Police Authorization Processing • Citation Generation and Management • Warning letter / Follow-up Notice Generation and Management • Full Featured Correspondence Generation and Management • Automated Inbound / Outbound Correspondence Management Page | 7 of 10 Proprietary and Confidential • Case / Citation Escalation Processing • Hearing Scheduling • Court Package Generation • Role Based Routing / Task Management • End to End Auditing • Comprehensive Program Reporting including Incident Data, Traffic Statistics, Financials, Court, Employee Performance, IVR Call Details, Program Analysis, and more • On-Demand Access to Ad hoc Report Generation Citation Generation and Processing Redflex’s Alcyon® back-office platform electronically stores and makes available all still images, digital video files, and associated incident and registered owner data for police review. Access to this module is completely secure, using robust user management and internet security protocols. The approval application is a web-based application that can be accessed using any computer or mobile device with internet capability and does not require any additional software to be installed. Once an officer is logged into the application, they can see all violations waiting for review. Upon login to the application, an inbox will appear containing all violations, sorted by date, that have passed phase review; have matching and accurate driver’s license detail; and have met the specific screening guidelines and business rules developed specifically for the you. All violations in the inbox are available for review, rejection, or final authorization. Choosing one of the violations in the inbox will pull up all the violation images and specific violation details for easy and prompt review. Page | 8 of 10 Proprietary and Confidential Image: Alcyon® Processing Screen – Final Incident Review Once the authorized public safety official clicks on the specific violation in the inbox, a fast-loading, informative, and intuitive violation review screen will appear. In approximately 30 seconds, the officer can review all the incident images, up to 12-second video, and data and make an informed assessment to determine if a “citation notice” should be authorized, printed, and mailed by Redflex. Accept or Reject Police Department personnel shall make the final review of each incident and decide whether it meets your specific criteria to issue a citation. If the established criteria are not met, the system permits the Officer to choose from a list of defined explanation codes for rejection. Customer Service Photonotice.com is our publicly accessible, secure website. Available 24/7, photonotice.com gives citation holders the ability to view their violation and review the related images and video. It also addresses citizens’ concerns by providing answers to FAQ’s about red light photo enforcement. When a citation is printed, we assign a unique identifier that allows the motorist to go online to photonotice.com to view the details of their violation, including the following: 1. Information regarding photo enforcement programs and technology 2. Secure viewing of the violator’s notice along with associated images and video evidence 3. Violation information such as the date/time/location of the offense Page | 9 of 10 Proprietary and Confidential The “pay now” option can direct the motorist to a your public facing website where payments can be made. Information on the public website can be managed to provide community messaging, including active deployed system locations, and regular updates of other pertinent program information at the direction and approval of Fountain Hills. A link to photonotice.com can be shared on other sites approved by Fountain Hills. Call Center Incoming citizen inquiries and general calls can be made to our toll-free multilingual customer service call center located within our Glendale, Arizona headquarters. The call center is designed specifically for the public and our staff of highly skilled, bilingual agents are available from 6:00AM – 5:00PM MST, Monday through Friday (excluding approved Fountain Hills holidays). Callers can receive answers to questions on a wide range of services, like payment options, hearing processes, nomination of a driver, and other general information on the program. Our experienced agents strive to resolve all concerns by the caller with an informative one-call resolution while maintaining a professional and courteous demeanor. Interactive Voice Response System (IVR) The Redflex IVR system allows the public to make inquires by using their unique citation number or license plate number. Callers can easily obtain citation information including the issuance date, citation number, license plate number. Each call begins with a welcome greeting, details to find the your public facing web site so they can make a payment, and other information to support the payment process. The IVR provides callers with access to real-time, detailed citation information that is directly linked to the database. In order to ensure violators, have the ability to fully understand their citation details, callers will have the option of hearing information in either English or Spanish and the system is Image: PhotoNotice – A Public Facing Portal to View Incident Details Page | 10 of 10 Proprietary and Confidential available 24/7. For those needing additional assistance, options for exiting the IVR and speaking directly to a live agent during business hours are also available through the system. Maintenance and Monitoring All system maintenance will be the responsibility of Redflex, without any involvement from Fountain Hills. Redflex's maintenance team has one goal in mind: to provide our clients with the most advanced photo enforcement systems in the industry with little to no system downtime. To accomplish this goal, Redflex offers a three (3)-pronged maintenance approach to ensure minimal system downtime: 1) daily remote maintenance, 2) preventative and on-site maintenance, and 3) emergency repair. This combination ensures correct functionality, high yields and the most stringent assurances on the levels of legal defensibility. We very much appreciate the opportunity to work with you on developing your enforcement program. Together we can enforce and more importantly change the behavior of the public to adhere to your traffic safety laws. Sincerely, Ross Preston Sr. Business Development Manager 850-320-2422 rpreston@redflex.com ITEM 8. C. TOWN OF FOUNTAIN HILLS STAFF REPORT    Meeting Date: 08/24/2020 Meeting Type: Town Council Special Meeting Agenda Type: Regular Agenda Submitting Department: Administration Prepared by: Grady E. Miller, Town Manager Staff Contact Information: Grady E. Miller, Town Manager Request to Town Council Special Meeting (Agenda Language):  CONSIDERATION OF Approving the 2020 Resolutions proposed by the Arizona League of Cities and Towns. Staff Summary (Background) Annually, the Arizona League of Cities and Towns seeks proposed resolutions from municipalities through the League's policy committee process. The proposed resolutions are discussed at the policy committee level before going to the League's Resolution Committee.  After review and discussion by the Resolutions Committee at the annual League Conference, the proposed resolutions go before the League's membership at the annual business meeting for its consideration and approval. Adopted resolutions have traditionally formed the basis for the League's legislative agenda to be pursued during the next session of the Arizona State Legislature.  Since Mayor Ginny Dickey will be representing the Town of Fountain Hills on the League's Resolution Committee, she is seeking guidance and approval/opposition of the following proposed resolutions before casting her vote on behalf of the Town.  The attached packet from the Arizona League of Cities and Towns provides additional background information on the resolutions. Resolution No. 1. - Legislation to Requiring Cities and Towns to Accept Consular ID Cards as Valid Form of Identification This resolution proposes legislation to require cities and towns to accept Consular ID Cards as valid forms of identification. It is sponsored by the City of Flagstaff. Resolution No. 2 - Legislation Allowing Use of Website and Newspaper to Post Ordinances with Penalties, Fines, or Other Punishment This proposed resolution seeks legislation allowing ordinances that impose a penalty, fine, forfeiture or other punishment to be posted on the municipality’s website and published in a paper of local circulation instead of posted in three or more public places.  It is sponsored by the City of Goodyear. Resolution No. 3 - Legislation Allowing Use of Other Newspapers in County to Publish Legal Notices This resolution proposes to allow governing bodies to use any newspaper printed and published in their county for public notices required by state law if the newspaper has circulation within the city or town. It is sponsored by the City of Buckeye. Resolution No. 4 - Legislation Creating Affordable Housing Tax Credit This resolution seeks legislation to establish a state affordable housing tax credit. It is sponsored by the City of Chandler. Conclusion Assuming that one or more of these resolutions are approved by the membership at the League's annual business meeting on September 1, 2020, League staff will seek legislators to sponsor bills to address the key issues raised by the resolutions.  Then during the legislative session, League staff and municipal officials will reach out to the legislators in their respective districts to support these bills.    Related Ordinance, Policy or Guiding Principle Transparency and Council Spirit of Cooperation Risk Analysis N/A Recommendation(s) by Board(s) or Commission(s) N/A Staff Recommendation(s) Staff recommends approval of the resolutions as proposed. SUGGESTED MOTION MOVE to approve or oppose the following proposed resolutions under consideration by the League's Resolution Committee:  Resolution Seeking Legislation Requiring Cities and Towns to Accept Consular ID Cards as Valid Form of Identification 1. Resolution Requesting Legislation Allowing Use of Website and Newspaper to Post Ordinances with Penalties, Fines, or Other Punishment 2. Resolution Seeking Legislation Allowing Use of Other Newspapers in County to Publish Legal Notices 3. Resolution Seeking Legislation Creating a State Affordable Housing Tax Credit4. Attachments 2020 League Resolutions Packet  Form Review Inbox Reviewed By Date Finance Director David Pock 08/11/2020 02:58 PM Town Attorney Aaron D. Arnson 08/12/2020 04:08 PM Town Manager (Originator)Grady E. Miller 08/12/2020 04:09 PM Form Started By: Grady E. Miller Started On: 08/10/2020 02:43 PM Final Approval Date: 08/12/2020  June 22, 2020 Dear Mayor: Correspondence sent from League staff on my behalf announced Craig McFarland, Mayor of Casa Grande and a member of the League’s Executive Committee, will serve as chairman of the Resolutions Committee at the League Annual Conference. The chairs of the five League Policy Committees will present the resolutions discussed in their respective committees to the Resolutions Committee at the Annual Conference. League Staff will present the staff resolution. Included in this packet you will find: • Resolutions Committee Calendar • Resolutions Committee Procedures • Policy Committee Reports and Resolutions The Resolutions Committee will meet on Tuesday, September 1, 2020 at 10:00 a.m. via Zoom. The actions of the Resolutions Committee will be formally adopted at the League’s Annual Business Meeting on September 1, 2020 immediately following the Resolutions Committee. If you have not accepted your appointment or designated a council representative to serve your city/town on the 2020 Resolutions Committee, please make that appointment here. We look forward to having all member cities and towns participate on the Resolutions Committee. If you have any questions or comments regarding the Resolutions Committee, your appointment or the resolutions submittal process, please do not hesitate to contact the League office at league@azleague.org. Sincerely, Mayor Christian Price, Maricopa League President Enclosures cc (via email): Managers, Clerks without Managers, Intergovs 2 2020 Resolutions Committee Calendar May-June: Policy Committees meet June: Mayor Craig McFarland appointed as 2020 Resolutions Committee chair June 22: League sends email requesting mayors or council designees register to represent their city/town on Resolutions Committee June 22: League sends out resolutions packet to membership September 1: Resolutions Committee Meeting and resolutions ratified at the Annual Business Meeting 3 League of Arizona Cities and Towns Resolutions Committee Procedures 1. Resolutions Committee Appointment The President shall appoint the Chairman at least two (2) months prior to the Annual Conference and appoint members of the Resolutions Committee. Only one elected official from each city or town shall be appointed to the Committee and shall cast the vote of such city or town. Municipal staff are ineligible to serve on the committee. 2. Duties The Resolutions Committee shall adopt statements of policy amending the annual Municipal Policy Statement, special resolutions and such other resolutions of courtesy, commendation or appreciation as the Committee deems appropriate. 3. Submission of Resolutions A. Except as otherwise provided, all proposed resolutions submitted by a city or town, including resolutions of courtesy, commendation or appreciation, must be considered by the Policy Committees by submitting the resolution to the Chairman of the Committee or to the League office. The resolutions process allows cities and towns to submit policy ideas to the League at any time during the year without the requirement of a co-sponsoring city or town. If approved by a policy committee, League staff will draft the resolution for presentation to the full Resolutions Committee. Sponsoring cities and towns, or other interested stakeholders may be consulted to provide more information on the idea and may be invited to speak to the issue at one of the policy committee meetings. Submissions received after July 6 may not be processed in time for the Annual Conference. B. Except in the case of emergency as determined by the Chair of the Resolutions Committee, no resolutions submitted by a city or town after the deadline specified in subsection A of this section or that have not been vetted by the Policy Committees may be considered. C. League staff may submit resolutions for consideration by the full Resolutions Committee if there are issues that have not been addressed through the policy committee process. 4. Resolutions Committee Process A. The President shall assign submissions to the relevant Policy Committee. The Policy Committees will review submissions and develop pertinent resolutions for consideration by the Resolutions Committee. Except for the provisions of subsection 3, only resolutions advanced by the Policy Committees shall be discussed at the Annual Conference Resolutions Committee. B. Resolutions shall be amended according to the process established by the Chairman of the Committee. 4 C. The completed resolutions will go to the full Resolutions Committee at the Annual Conference for consideration. The chairs of each policy committee will be responsible for presenting the resolutions and their committee activities to the full Resolutions Committee. Notice shall be given to each member at least four weeks in advance of the meeting. 5. Final Report After the Resolutions Committee meeting, the Chairman of the Committee or a designee shall report to the entire league membership at the Annual Business Meeting those resolutions adopted by the Committee. Resolutions adopted by the Committee shall be formally adopted by the membership at the Annual Business Meeting and become the basis for the annual Municipal Policy Statement. 5 Policy Committee Reports The following policy committee reports and resolutions are arranged in alphabetical order. The recommended resolutions are categorized by their respective committee initials and numbered according to the order in which they were approved. Budget, Finance and Economic Development – BFED General Administration, Human Resources and Elections – GAHRE Neighborhoods, Sustainability and Quality of Life – NSQL Public Safety, Military Affairs and the Courts – PSMAC Transportation, Infrastructure and Public Works – TIPW 6 Number Resolution Sponsor Notes BFED 1 Support legislation requiring cities and towns to accept consular ID cards as a valid form of identification. Flagstaff GAHRE 1 Support legislation that allows ordinances imposing a penalty, fine, forfeiture or other punishment to be posted on the municipality’s website and published in a paper of local circulation instead of posted in three or more public places. Goodyear GAHRE 2 Allow governing bodies to use any newspaper printed and published in their county for public notices required by state law if the newspaper has circulation within the city or town. Buckeye NSQL 1 Establish a state affordable housing tax credit. Chandler These are the only items that will be voted on. The other submissions that did not move forward as resolutions will be explained at the Resolutions Committee. 7 Chair’s Report of the Budget, Finance and Economic Development Policy Committee Mayor Greg Mengarelli, Prescott Resolutions Committee Meeting On May 7, 2020, the Budget, Finance and Economic Development committee (BFED) convened to discuss one policy issue submitted by Flagstaff. Below is a summary of the issue considered: 1. Consular ID cards. Flagstaff (Policy Issue 1) Below is a summary of the committee discussion and recommendations: Jack Fitchett, Flagstaff management assistant, presented Policy Issue 1 on behalf of Mayor Coral Evans regarding acceptance of consular ID cards (CID) as a form of identification. He provided an explanation of how CIDs are issued and used, and provided examples of states that accept them as forms of identification (Illinois, Oregon, Texas and Nevada). He referenced legislation that was introduced during the 2020 legislative session, which would require the state, counties, cities and towns to accept CIDs as an official form of identification. He explained the intent for introducing the policy issue was to have a broader discussion about the use of consular ID cards and inquire if local leaders have suggestions for expanding flexibility for use of CIDs to allow foreign nationals to participate more in our state’s economy. HB 2604 (consular identification cards; permitted use), which did not receive a final vote in the legislature, would have amended state statute associated with valid forms of identification to require the state, cities, towns and counties to accept CIDs as a valid form of identification. After discussion and questions, Councilmember Curtis Nielson (Avondale) moved to present the policy issue as a resolution for consideration at the Resolutions Committee; it was seconded by Mayor Tara Walter (Florence). The motion passed. On June 4, 2020, the BFED committee convened to discuss one policy issue submitted by Kingman. Below is a summary of the issue considered: 2. Fire and emergency medical services tax. Kingman (Policy Issue 2) Below is a summary of the committee discussion and recommendations: Kingman Mayor Jenn Miles and City Manager Ron Foggin presented Policy Issue 2, which would request legislation to allow cities and towns to levy a secondary property tax, upon voter approval, to pay for fire and emergency services. League staff provided explanation to the committee detailing the political obstacles for advancing legislation to allow a secondary tax to pay for fire and emergency services due to organizations representing taxpayers who have strongly rejected similar measures. Staff suggested legislation considered in 2013 that would have allowed a reduced primary levy solely for public safety costs as a potential option to consider as it would be more politically feasible and provide dedicated funding for these services. After discussion and comments provided by committee members, no formal recommendation was made regarding the policy issue. 8 Policy Issue Disposition by Committee 1 Consular ID cards Resolution BFED 1 2 Fire and emergency medical services tax No recommendation Greg Mengarelli Mayor of Prescott Chair, Budget, Finance and Economic Development 9 BFED 1 League of Arizona Cities & Towns Resolution Support legislation requiring cities and towns to accept consular ID cards as a valid form of identification. A. Purpose and Effect of Resolution A consular identification card (CID), also referred to as a matriculation card or matricula, is a form of personal identification issued by a foreign government to their citizens living abroad. This enables foreign nationals to secure items and services such as, utility and bank accounts, library cards, doctors, postal services, or, in some cases, a driver’s license. It can also be used as proof of identity to law enforcement. According to a 2003 National Immigration Law Center report, approximately 13 states (including Idaho, Indiana, Michigan, Nebraska, New Mexico, North Carolina, Oregon, South Dakota, Texas, Tennessee, Utah, Washington and Wisconsin) accept or have accepted this card as identification for purposes of applying for a driver’s license. Also, many financial institutions, including local credit unions, Bank of America, Citibank, JP Morgan Chase, and Wells Fargo will accept CIDs for banking purposes. To apply for a CID, a Mexican national, for example, must present three types of documents to prove nationality, identity and local address. These include a passport, birth certificate, or a Mexican driver’s license, among others. B. Relevance to Municipal Policy Cities and towns accept government-issued identification for a variety of services they provide, such as acquiring a business license or building permit, issuing library cards, establishing utility accounts, among others. C. Fiscal Impact to Cities and Towns No direct fiscal impact to cities and towns. However, if legislation is passed, cities and towns may need to expend funds to train staff to accept this identification, but these costs are likely to be minimal. D. Fiscal Impact to the State No anticipated fiscal impact to the state. However, if legislation is passed, state agencies may need to expend funds to train staff to accept this identification, but these costs are likely to be minimal. E. Contact Information: Sponsoring City or Town: Flagstaff Name: Mayor Coral Evans Phone: (520) 689-5752 Email: cevans@flagstaffaz.gov League Staff: Tom Savage 10 Chair’s Report of the General Administration, Human Resources and Elections Committee Mayor Anna Tovar, Tolleson Resolutions Committee Meeting On May 7, 2020, the General Administration, Human Resources and Elections Committee (GAHRE) convened to discuss two policy issues submitted by Buckeye and Goodyear. Below is a summary of the issues considered by GAHRE: 1. Support legislation that authorizes ordinances imposing a penalty, fine, forfeiture or other punishment to be posted on the municipality’s website and published in a paper of local circulation instead of posted in three or more public places. Goodyear (Policy Issue 1) 2. Allow governing bodies to use any newspaper printed and published in their county for public notices required by state law if the newspaper has circulation within the city or town. Buckeye (Policy Issue 2) Below is a summary of the committee discussion and recommendations: Goodyear submitted Policy Issue 1 that would allow cities and towns that are adopting ordinances with a penalty, fine, forfeiture or other punishment to post notice on their website and publish notice in their local paper as opposed to posting the notice in three public places. Denise McCracken, Goodyear city clerk, explained that the requirement to post these ordinances in three public places is an unnecessary and burdensome staffing requirement as most residents stay updated online or by calling the city directly. It was also pointed out that the proposal does not advocate removing the newspaper posting requirement so residents without internet access will still have ample avenues to locate this information. Part of the committee discussion was that the old posting requirement works in some communities and residents know where to go to access information. Ms. McCracken explained the suggested legislative language included in the policy proposal would allow cities and towns to continue to provide as much notice as they wish. After discussion, the committee voted in favor of moving the policy issue forward as a resolution. Buckeye proposed Policy Issue 2 to allow governing bodies to use newspapers printed and published in their county when state statute requires or allows the publication of a notice in a newspaper. Current statute requires that when public notices are statutorily required to be published in a newspaper, the publication must “take place in a newspaper printed and published within the territorial limits thereof. If no such newspaper is printed and published within the limits thereof, publication may be made in a newspaper printed and published in the county in which the district, city or town is located.” The city provided a situation where they’re forced to use a newspaper with significantly less circulation and with a substantially higher publishing fee to publish their public notices. The committee was also made aware that this situation is not unique to Buckeye. The committee discussed the necessity for publication of notices was to increase transparency of government for 11 citizens and that it is counterintuitive to pay more money for less coverage. It was pointed out that based on the draft legislative language, a city or town could publish in a newspaper in the county that has no circulation in the city or town. Buckeye recognized that while this was not the intention of the proposal, adding clarifying language to the proposal would address the issue. At the June 4, 2020 meeting, Buckeye provided the committee with language that clarified the newspaper used for the publication may be printed and published in the county but must have circulation within the city or town. The committee voted unanimously to seek a change to state statute allowing governing bodies to use newspapers printed and published in their county and circulated in their city or town when state statute requires or allows the publication of a notice in a newspaper. The table below summarizes the GAHRE Committee’s actions: Policy Issue Disposition by Committee 1 Ordinance Posting Requirements Resolution GAHRE 1 2 Newspaper Publishing Requirements Resolution GAHRE 2 Anna Tovar Mayor of Tolleson Chair, General Administration, Human Resources and Elections Committee 12 GAHRE 1 League of Arizona Cities & Towns Resolution Support legislation that authorizes ordinances imposing a penalty, fine, forfeiture or other punishment to be posted on the municipality’s website and published in a paper of local circulation instead of posted in three or more public places. A. Purpose and Effect of Resolution Arizona Revised Statutes § 9-813 requires every ordinance imposing a penalty, fine, forfeiture or other punishment to, not only be posted in a newspaper of general circulation (A.R.S. § 39-204), but also be posted in three or more public places within the city or town. This proposal would allow these ordinances to be posted on the municipality’s website and published in a paper of local circulation instead of posted in three or more public places. B. Relevance to Municipal Policy The current posting requirement in three public places is an unnecessary and burdensome staffing requirement as most residents stay updated online or by calling the city directly. Furthermore, the proposal does not advocate for removing the newspaper publication requirement, so residents without internet access will still have ample avenues to locate this information. C. Fiscal Impact to Cities and Towns Depending on the situation locally, cities and towns may realize cost savings for their newspaper publishing costs. D. Fiscal Impact to the State No fiscal impact to the state. E. Contact Information Sponsoring City or Town: Goodyear Name: Ginna Carico, Government Relations Manager Phone: 623-882-7082 Email: ginna.carico@goodyearaz.gov League Staff: Tom Belshe 13 GAHRE 2 League of Arizona Cities & Towns Resolution Allow governing bodies to use any newspaper printed and published in their county for public notices required by state law if the newspaper has circulation within the city or town. A. Purpose and Effect of Resolution State statute requires certain public notices to be published in a newspaper and the publication must “take place in a newspaper printed and published within the territorial limits thereof. If no newspaper is printed and published within the limits thereof, publication may be made in a newspaper printed and published in the county in which the district, city or town is located” (Arizona Rev. Statutes § 39-204(C)). There are situations where a city or town is forced to use a newspaper with significantly less circulation and with substantially higher fees to publish public notices. Cities and towns should be allowed to have their public notices reach more citizens and do so at the most reasonable price available. B. Relevance to Municipal Policy Statutorily required publication of notices in a newspaper is meant to create transparency in government. By requiring publication of these notices in papers with very limited circulation, an important public policy purpose is thwarted. C. Fiscal Impact to Cities and Towns Publication cost savings could be significant for affected cities and towns. D. Fiscal Impact to the State No fiscal impact to the state. E. Contact Information Sponsoring City or Town: Buckeye Name: George Diaz, Government Relations Manager Phone: 623-349-6996 Email: gdiaz@buckeyeaz.gov League Staff: Tom Belshe 14 Chair’s Report of the Neighborhoods, Sustainability, and Quality of Life Policy Committee Mayor Sandy Moriarty, Sedona Resolutions Committee Meeting The Neighborhoods, Sustainability, and Quality of Life Policy Committee (NSQL) convened on June 9, 2020, to discuss a policy issue submitted by Chandler. Below is a summary of the policy issue considered: 1. Establish a state affordable housing tax credit. – Chandler (Policy Issue 1) Below is a summary of the committee discussion and the recommendations: Chandler submitted Policy Issue 1, responding to a need to create a state affordable housing tax credit. League staff provided an overview of the history of this idea, stating that a similar policy proposal was proposed by Tucson two years ago and supported unanimously by the Resolutions Committee at that time. The current proposal is similar to HB 2732 (tax credit; affordable housing) from the 2020 legislative session that was sponsored by Representative Jeff Weninger. The bill had broad support but did not pass due to the premature end to the session as a result of COVID-19. Mayor Moriarty recognized Alexis Apodaca (Chandler) to explain the proposal, which was submitted to help address affordable housing needs throughout the state through a public-private partnership. State-level affordable housing tax credits are based on the federal low-income housing tax credit, or LIHTC program. She explained that the federal government allocates LIHTC tax credits to states on a per-capita basis and credits are then sent to each state’s allocating agency – the Arizona Department of Housing (ADOH). ADOH then uses a competitive process to distribute tax credits to developers or investors using broad federal guidelines and state priorities, which are outlined in a Qualified Allocation Plan. Currently, 17 other states already have this program in place and data clearly show economic development gains the states received through the program - for every 1,000 affordable housing units that are constructed 1,130 jobs are sustained for one year. A question was asked if there was any priority given to existing houses. Alexis mentioned the credits can be used to refurbish existing buildings as opposed to complete new construction, and that is outlined in the Qualified Allocation Plan when the ADOH is deciding to allocate credits. Responding to other questions, Alexis stated the program cannot be used to override any local zoning ordinances and this proposal would be an additional credit from the state. Following questions and discussion, Vice Mayor Malnar (Glendale) motioned to bring the policy forward to the Resolutions Committee. The motion was seconded by Vice Mayor Scott Anderson (Gilbert) and passed unanimously. Policy Issue Disposition by Committee 1 Establish a state affordable housing tax credit. Resolution NSQL 1 Sandy Moriarty Mayor of Sedona Chair, Neighborhoods, Sustainability, and Quality of Life Policy Committee 15 NSQL 1 League of Arizona Cities & Towns Resolution Establish a state affordable housing tax credit. A. Purpose and Effect of Resolution Meeting housing demand is increasingly challenging for many cities and towns across Arizona, particularly housing that is considered affordable. A recent report by the National Low-Income Housing Coalition found that Arizona ranks near the bottom in affordable housing availability, having only 25 vacant units for every 100 households in need. The lack of available and affordable housing is also linked to increases of individuals experiencing homelessness in many communities. While municipalities across the state have various programs to assist low-income households, many services have months-long waiting lists and limited budgets, restricting the number of residents that can be served. Difficulties exist in the current development process as well - the costs of constructing or redeveloping a housing complex remain steep, and federal tax credits are limited. Statewide action is necessary to provide a sustainable and scalable answer to Arizona’s affordable housing challenge. Incentivizing private sector builders to promote affordable housing developments remains an effective way to provide units for varied income households. The federal Low-Income Housing Tax Credit (LIHTC) is a dollar-for-dollar tax credit for affordable housing investments, providing over two million units since its inception. Like the federal LIHTC, a state affordable housing tax credit would serve as an additional mechanism to encourage affordable housing development in Arizona. The impact of the federal LIHTC is amplified when combined with a tax credit at the local level, maximizing both state and federal investments. Seventeen states have affordable housing tax credits to supplement the federal LIHTC program, and six states were considering adopting the credit during their 2020 legislative sessions. Additional housing development would also spur economic activity throughout the state, creating revenue for local governments. An affordable housing tax credit is a tool that allows Arizona and its municipalities to provide affordable housing options for residents that need it most. This policy solution grants relief for Arizona families utilizing a proven framework that stimulates economic activity through the development of affordable housing within our communities. B. Relevance to Municipal Policy Homelessness and transient populations result from a lack of affordable housing and can create expensive demands on our public safety, emergency services, criminal justice, healthcare and education systems. By working together to fill the affordable housing void we can reduce our costs through the stabilization of the individuals and families who need it most. 16 C. Fiscal Impact to Cities and Towns There would be no fiscal impact to cities or towns. However, cities and towns will benefit from increased development activity in the form of increased TPT and economic outputs associated with the development, operation and maintenance of this new housing. D. Fiscal Impact to the State Fiscal impact to the state will be determined by the limit set on the tax credit in the sponsoring legislation. Based upon what has occurred in other states, this will be offset by greater economic activity in the form of construction TPT, income tax from jobs created and increased local tax revenues. E. Contact Information Sponsor City/Town: Chandler Name: Alexis Apodaca Phone: Alexis.Apodaca@chandleraz.gov Email: (480) 782-2216 League Staff: Matt Lore 17 Chair’s Report of the Public Safety, Military Affairs, and the Courts Policy Committee Mayor Jerry Weiers, Chair Resolutions Committee Meeting On June 2, 2020, the Public Safety, Military Affairs, and the Courts Policy Committee (PSMAC) convened to discuss one policy issue submitted by Sierra Vista for consideration. 1. Supporting the reconvening of the Military Affairs Commission. Sierra Vista (Policy Issue 1) Below is a summary of the policy issue considered by PSMAC: Sierra Vista Mayor Pro Tempore Rachel Gray, and Economic Development Manager Tony Boone presented Policy Issue 1 regarding the Military Affairs Commission (MAC) and supporting the Commission’s reconvening. In materials distributed to the committee, League staff noted that A.R.S. § 26-261 establishes the 16-member, governor appointed commission and requires the makeup of the MAC to include six members with expertise in military affairs, six local government elected officials, and four members who represent private property interests in communities with military installations. The MAC’s duty is to meet on a regular basis with the governor and legislative leadership to provide recommendations on military issues and advice on matters affecting the operational viability of Arizona’s military facilities. Mayor Pro Tempore Gray informed the committee that even though the MAC is statutorily required to meet at least once a year, it has not met since 2017. Mayor Pro Tempore Gray and Mr. Boone emphasized that because the Commission has failed to meet, Arizona has missed grant opportunities that have instead been awarded in neighboring states. Additionally, Mr. Boone cited the economic impact of Arizona’s military operations, referencing a 2017 economic study authored by Alan Maguire. The Maguire study attributes 76,714 jobs and $11.4 billion in economic impact to the state from military installations within Arizona. Mr. Boone noted and Mayor Pro Tempore Gray further emphasized that the state is unique in that it is home to all military branches. During the policy committee’s discussion, the committee expressed support for the proposal but questioned whether it was a matter appropriate for the League’s resolution committee. Chair Weiers advised Sierra Vista to contact the city’s legislative delegation to make them aware of their concerns related to the MAC, and to garner support for reconvening the Commission. Additionally, members of the committee advised proponents to seek support from the Governor’s office, due to a number of the Commission’s appointments expired terms. The committee ultimately agreed that the proposal not move forward as a resolution, and that the measure be addressed by working with League staff outside of the resolution process to garner support for the Commission with the Legislature and the Governor’s office. 18 Policy Issue Disposition by Committee 1 Support the reconvening of the Military Affairs Commission No recommendation – consensus to address issue outside of the resolutions process Jerry Weiers, Mayor of Glendale Chair, Public Safety, Military Affairs, and the Courts Policy Committee 19 Chair’s Report of the Transportation, Infrastructure and Public Works Policy Committee Mayor Bob Rivera, Thatcher Resolutions Committee Meeting On June 2, 2020, the Transportation, Infrastructure and Public Works committee (TIPW) convened to discuss one policy issue submitted by Huachuca City. Below is a summary of the issue considered: 1. Safety on Municipal Highways. Huachuca City (Policy Issue 1) Below is a summary of the committee discussion and recommendations: Huachuca City Manager Phil Cushman introduced Policy Issue 1. He explained that State Highway 90 passes through Huachuca City with a reduced speed limit. Even with the reduced posted speed limit, actual driver speeds create unsafe conditions for drivers, pedestrians and homeowners. The city believes that the most prudent action would be to further reduce the posted speed limit, which would require working with ADOT. It was acknowledged that there could be other solutions, such as design changes to the highway and/or enforcement changes, but many of the available options take a long time to implement or may require a significant financial investment from either the local jurisdiction or the state. Mr. Cushman expressed that he believes this is an issue that impacts many communities in Arizona and recognized that the concept needs more work before it would be ready to go to the Resolutions Committee. The discussion from the committee was largely supportive of the goal but concerned about what approach would have the highest chance of success. Committee members agreed that League staff should work with Huachuca City and ADOT to start the conversation, explore possible solutions, and report back to the committee at the next meeting. After discussion and questions, Mayor Craig McFarland (Casa Grande) moved to approve the policy issue as a possible future resolution that needs more study and clarification, which Councilmember Vincent Manfredi (Maricopa) seconded. The motion was approved unanimously. The table below summarizes the TIPW Committee’s actions: Policy Issue Disposition by Committee 1 Safety on municipal highways Possible future resolution Bob Rivera Mayor of Thatcher Chair, Transportation, Infrastructure and Public Works ITEM 8. D. TOWN OF FOUNTAIN HILLS STAFF REPORT    Meeting Date: 08/24/2020 Meeting Type: Town Council Special Meeting Agenda Type: Regular Agenda Submitting Department: Development Services Prepared by: John Wesley, Development Services Director Staff Contact Information: John Wesley, Development Services Director Request to Town Council Special Meeting (Agenda Language):  PUBLIC HEARING AND CONSIDERATION of adopting Ordinance 20-13 amending the Town of Fountain Hills Zoning Ordinance, Section 1.12 by changing the definition of dwelling unit, Section 5.06 G regarding large accessory structures, and Section 10.02 A. 13. regarding guest houses. Staff Summary (Background) The Town Council directed staff to look at options related to the prohibition of kitchens in guest houses with the possibility of changing the ordinance to remove this prohibition.  As part of this effort, staff researched the general topic of guest houses and accessory dwelling units and also reviewed the codes for other Arizona cities. The primary concern with allowing kitchens in guest houses is that it may result in the creation of duplexes - two homes on one lot.  The ordinance prohibits de facto duplexes in single residence zoning districts through the definition of a guest house (includes the statement "such quarters shall not be rented, and/or otherwise used for income producing purposes) and through a provision in Sec. 10.02 A 13 that states guest houses "shall not be used for any commercial or non-residential uses." One of the challenges with the current ordinance is determining what constitutes a kitchen.  A "pool house" could have a restroom with a shower, an open area for parties and entertaining and include an area that contains a microwave, a mini-frig, a sink and a few cabinets.  Does the microwave, mini-frig, sink, and cabinets create a kitchen?  The lines between these types of uses can get very fuzzy and hard to regulate.  In the literature search, staff found that accessory dwelling units are becoming more common across the country.  They are promoted primarily as a means to provide affordable housing and meet changing family needs.  They can, however, also create concerns with the impact they may have on property values and parking. Staff reviewed the zoning ordinances from eleven other communities to see how they handled accessory "dwelling units" and "guest houses."  Information for these types of uses was found in all ordinances, except for Chandler.  In all ten other ordinances there was some provision for these types of uses.  For example, Apache Junction requires an administrative use permit for such units and Florence requires approval of a conditional use permit for such uses in their R1-R district (they are allowed by right in zones with larger lots and not allowed in zones with smaller lots).  Only two cities, Gilbert and Sedona, specifically exclude kitchens and three (Scottsdale, Paradise Valley, and Florence) were unclear but probably do allow kitchens.  The other five jurisdictions clearly allow kitchens.  A summary of the findings by jurisdiction is attached. The Fountain Hills Zoning Ordinance includes definitions of dwelling unit and guest house, standards for guest houses as part of the list of uses in Section 10.02, and regulations for Large Accessory Buildings (Detached) in Section 5.06.  This current combination of regulations is somewhat confusing.  Therefore, staff has taken this opportunity to review all of these areas and proposed a comprehensive set of text changes to simplify and clarify the regulations. Definitions The current ordinance definition of dwelling unit is:  Dwelling Unit:  A building or portion thereof having restricted access to one kitchen or area convertible to kitchen activities, built in accordance to the building code adopted in the Town or, if built prior to incorporation, adopted by Maricopa County, designed exclusively for residential purposes, including single-family and multiple-family dwellings; but not including hotels, motels, boarding and lodging houses, fraternity and sorority houses, rest homes, and nursing homes, or child care nurseries. One of the challenges has been with single-family homes that have an additional kitchen in the home.  Another growing issue is the "next generation" homes that are becoming popular that have a place for elderly parents to live semi-independently from the rest of the family.  This definition also makes it challenging if the guest house is attached to the primary structure. In reviewing the building code and the codes in the other towns surveyed, they all used a very similar definition of dwelling unit that does not specifically state kitchens or limit the number of kitchens.  Based on the language found in these other sources, staff is proposing we change the definition of dwelling unit to:  Dwelling Unit: A room or suite of rooms including permanent provisions for living, sleeping, eating, sanitation, and cooking and designed or occupied as separate living quarters.   This definition of guest house seems to be clear and provides the standard which prohibits the guest house from being rented separately as an additional dwelling unit on the property.  Staff is not proposing any changes to this definition:   Guest House:  Living or sleeping quarters within an accessory building for the sole use of occupants of the premises, guests of such occupants or persons employed on the premises.  The accessory building may be attached or detached from the main building.  Such quarters shall not be rented, and/or otherwise used for income producing purposes. Section 10.02 A. 13.  This section of the ordinance states that guest houses, attached or detached, are an allowed use in the single-family zoning districts subject to a number of requirements. Many of the standards have address size, setback, and height.  These are all similar to the rules in Section 5.06 G for large accessory structures.  The rules in Section 10.02 A. 3. also contain other requirements such as no kitchen, no attached garage, and must use the same utilities as the primary building.  Again, these are similar to the rules for large accessory buildings.  They are not, however, exactly the same.  This leads to some confusion and challenges with plan review and enforcement.  Therefore, it is staff's suggestion that as a part of this text amendment these sections be revised to address the issues identified. Staff is proposing that Section 10.02 A. 13. be amended to simply state the allowed use.  All of the development standards are consolidated in Section 5.06 G. The proposed language for Section 10.02 A. 13. is:  13. Guest House; provided that it shall not be used for any commercial or nonresidential uses. Section 5.06 G. This section of the ordinance provides regulations for large (over 120 square feet) detached accessory structures.  While one possible use of a large accessory structure may as a guest house, they can also be used as poolside cabanas, RV garages, workshops, etc.  The regulations include information regarding where the buildings can be on a lot, setbacks, lot coverage, height and utilities.  This section currently states that no kitchens are permitted.  Currently, the regulations provided in Section 5.06 G. are very similar to those under Guest House in 10.02 A. 13., but they are not exactly the same.  Further, Section 5.06 G. is currently limited to detached accessory structures, there are no clear regulations for attached accessory structures.  In order to remove any confusion and conflicts, staff is recommending all development standards for large accessory structures, whether attached or detached, be provided in one place.  Therefore, extensive adjustments are proposed to consolidate everything regarding this building type into this section of the code. The regulations contained in the revised ordinance are the same as what is in the current code with four exceptions: Kitchens are no longer prohibited. Use of 220 power is no longer prohibited. An additional parking space is required if the structure is used as a guest house. An illustration that shows that if the guest house is in front of the front plan of the house it can be no further from the front of the house than one-half the depth of the guest house.  There are no written standards in the current code to back up this illustration and it only applies to structures used as a guest house, not other detached accessory structures. The proposed language for the amended Sec. 5.06 G. is: G. Large Accessory Buildings: Large accessory buildings are accessory buildings greater than one-hundred-twenty (120) square feet in size.  The following standards apply to all large accessory buildings in any residential zoning district.  1.  Any large accessory buildings shall: a.  Be no more than thirty (30) percent of the square footage of the footprint of the livable area of the principal building; b.  Be connected to the principal building’s utilities; c.  Either share a common wall of at least four (4) feet in length with the principal building or be at least six (6) feet from the principal building; d.  Have the same building height allowance as stated in the zoning district regulations for the principal building if the accessory building shares a common wall of at least four (4) feet in length with the principal building; e.  Comply with the building height and setback requirements of the zoning district in which it is located except as provided below: i.  If the accessory structure does not share a common wall of at least four (4) feet in length with the principal building, the large accessory building shall be limited to a maximum height of fifteen (15) feet; ii  On corner lots zoned R1-6 through R1-10, accessory buildings separated from the principal building by at least six (6) feet with no physical connection to the principal structure may maintain a rear yard setback equal to the required interior side yard in that zoning district. f.  Be separated from any other building on the same lot by at least six (6) feet; g.  Not have any overhead garage doors facing any street front if any portion of the accessory building is constructed in front of the front plane of the principal building; h.  Not be located between the street side plane of the principal building and the street side lot line; and, i.  Be constructed of materials and of a color that are the same as the principal building if connected to the principal building or located in front of the front plane of the principal building. 2.  At least one additional parking space must be provided for each large accessory building used as a guest house. Related Ordinance, Policy or Guiding Principle Zoning Ordinance Section 1.12, Definitions Zoning Ordinance Section 10.02 Permitted Uses Zoning Ordinance Section 5.06 G Large Accessory Structures (Detached) Risk Analysis N/A Recommendation(s) by Board(s) or Commission(s) The Planning and Zoning Commission held a public hearing and considered this proposed text amendment at its regular meeting on July 13, 2020.  No citizens spoke for or against this proposed text amendment.  The Planning and Zoning Commission recommends approval of the proposed amendment as presented. Staff Recommendation(s) Staff recommends adoption of Ordinance 20-13 as submitted. SUGGESTED MOTION MOVE to adopt Ordinance 20-13. Attachments Ord 20-13  Research of cities and towns  PowerPoint  Form Review Inbox Reviewed By Date Development Services Director (Originator)John Wesley 08/03/2020 11:18 AM Town Attorney Aaron D. Arnson 08/03/2020 04:07 PM Town Manager Grady E. Miller 08/03/2020 04:30 PM Form Started By: John Wesley Started On: 07/27/2020 11:12 AM Final Approval Date: 08/03/2020  ORDINANCE NO. 20-13 AN ORDINANCE OF THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, AMENDING THE TOWN OF FOUNTAIN HILLS ZONING ORDINANCE, SECTION 1.12 BY CHANGING THE DEFINITION OF DWELLING UNIT, SECTION 5.06 G. REGARDING LARGE ACCESSORY STRUCTURES, AND SECTION 10.02 A. 13. REGARDING GUEST HOUSES RECITALS: WHEREAS, the Mayor and Council of the Town of Fountain Hills (the “Town Council”) adopted Ordinance No. 93-22 on November 18, 1993, which adopted the Zoning Ordinance for the Town of Fountain Hills (the “Zoning Ordinance”); and WHEREAS, the Town Council desires to amend the Zoning Ordinance to amend Section 1.12 by changing the definition of dwelling unit, Section 5.06 G. regarding Large Accessory Buildings, and Section 10.02 A. 13 regarding Guest Houses; and WHEREAS, in accordance with the Zoning Ordinance and pursuant to ARIZ. REV. STAT. § 9- 462.04, public hearings regarding this ordinance were advertised in the June 24, 2020, July 1, 2020, August 5, 2020, and August 12, 2020, editions of the Fountain Hills Times; and WHEREAS, public hearings were held by the Fountain Hills Planning & Zoning Commission on July 13, 2020 and by the Town Council on August 24, 2020. ENACTMENTS: NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS as follows: SECTION 1. The recitals above are hereby incorporated as if fully set forth herein. SECTION 2. The Zoning Ordinance, Chapter 1, Introduction, Section 1.12, Definitions, is amended as follows: Dwelling Unit: A building or portion thereof having restricted access to one kitchen or area convertible to kitchen activities, built in accordance to the building code adopted in the Town, or if built prior to incorporation, adopted by Maricopa County, designed exclusively for residential purposes, including single-family and multifamily dwellings; but not including hotels, motels, boarding and lodging houses, fraternity and sorority house, rest homes and nursing homes, or child care nurseries ROOM OR SUITE OF ROOMS INCLUDING PERMANENT PROVISIONS FOR LIVING, SLEEPING, EATING, SANITATION, AND COOKING, AND DESIGNED OR OCCUPIED AS SEPARATE LIVING QUARTERS. SECTION 3. The Zoning Ordinance, Chapter 5, General Provisions, Section 5.06 G., Large Accessory Buildings (Detached), is amended as follows: G. Large Accessory Buildings (Detached): ORDINANCE 20-13 PAGE 2 LARGE ACCESSORY BUILDINGS ARE ACCESSORY BUILDINGS GREATER THAN ONE-HUNDRED-TWENTY (120) SQUARE FEET IN SIZE. THE FOLLOWING STANDARDS APPLY TO ALL LARGE ACCESSORY BUILDINGS IN ANY RESIDENTIAL ZONING DISTRICT. 1. Any detached accessory building greater that one-hundred-twenty (120) square feet in size in any residential zoneANY LARGE ACCESSORY BUILDING SHALL: a. Shall not be located in any building setback, except as outlined in (G)(3) below; b. Shall be at least six feet from any other building; c. Shall not exceed fifteen (15) feet in height; d. Shall not exceedBE NO MORE THAN thirty (30) percent of the square footage of the footprint of the livable area of the principal building; e. Shall not contain kitchen facilities (oven or stove); B. BE CONNECTED TO THE PRINCIPAL BUILDING’S UTILITIES; C. EITHER SHARE A COMMON WALL OF AT LEAST FOUR (4) FEET IN LENGTH WITH THE PRINCIPAL BUILDING OR BE AT LEAST SIX (6) FEET FROM THE PRINCIPAL BUILDING; D. HAVE THE SAME BUILDING HEIGHT ALLOWANCE AS STATED IN THE ZONING DISTRICT REGULATIONS FOR THE PRINCIPAL BUILDING IF THE ACCESSORY BUILDING SHARES A COMMON WALL OF AT LEAST FOUR (4) FEET IN LENGTH WITH THE PRINCIPAL BUILDING; E. COMPLY WITH THE BUILDING HEIGHT AND SETBACK REQUIREMENTS OF THE ZONING DISTRICT IN WHICH IT IS LOCATED, EXCEPT AS PROVIDED BELOW: I. IF THE LARGE ACCESSORY BUILDING DOES NOT SHARE A COMMON WALL OF AT LEAST FOUR (4) FEET IN LENGTH WITH THE PRINCIPAL BUILDING, THE LARGE ACCESSORY BUILDING SHALL BE LIMITED TO A MAXIMUM HEIGHT OF FIFTEEN (15) FEET. II. ON CORNER LOTS ZONED R1-6 THROUGH R1-10, A LARGE ACCESSORY BUILDING THAT IS SEPARATED FROM THE PRINCIPAL BUILDING BY AT LEAST SIX (6) FEET AND WITH NO PHYSICAL CONNECTION TO THE PRINCIPAL STRUCTURE MAY MAINTAIN A REAR YARD SETBACK EQUAL TO THE REQUIRED INTERIOR SIDE YARD IN THAT ZONING DISTRICT. F. BE SEPARATED FROM ANY BUILDING OTHER THAN THE PRINCIPAL BUILDING ON THE SAME LOT BY AT LEAST SIX (6) FEET; ORDINANCE 20-13 PAGE 3 G. NOT HAVE ANY OVERHEAD GARAGE DOORS FACING ANY STREET IF ANY PORTION OF THE ACCESSORY BUILDING IS CONSTRUCTED IN FRONT OF THE FRONT PLANE OF THE PRINCIPAL BUILDING; H. NOT BE LOCATED BETWEEN THE STREET SIDE PLANE OF THE PRINCIPAL BUILDING AND THE STREET SIDE LOT LINE; AND, I. BE CONSTRUCTED OF MATERIALS AND OF COLORS THAT ARE THE SAME AS THE PRINCIPAL BUILDING IF CONNCECTED TO THE PRINCIPAL BUILDING OR LOCATED IN FRONT OF THE FRONT PLANE OF THE PRINCIPAL BUILDING. f. Shall be connected to the principal building’s utilities, and shall not have two-hundred-twenty (220) volt electrical service to any part or common wall, with the exception of a hardwired air conditioning unit; g. Shall not be located between the street side plane of the principal building and the street side lot line. 2. Any detached accessory building greater than one-hundred-twenty (120) square feet constructed in front of the front plane of the principal building in any residential zone;AT LEAST ONE ADDITIONAL PARKING SPACE MUST BE PROVIDED FOR EACH LARGE ACCESSORY BUILDING USED AS A GUEST HOUSE. a. Shall be completely enclosed; b. Shall be constructed of materials and of a color that are the same as the principal building; c. Cannot have any overhead garage doors facing any street front; 3. On corner lots in Single-Family Residential Zoning Districts (R1-6, R1-6A, R1-8, R1-8A, R1-10, R1-10A only). Any detached accessory building greater than one- hundred-twenty (120) square feet may be located within the rear yard setback, but shall not be no closer to the rear lot line than a distance equal to the zoning district’s side yard setback, as set forth in Chapter 10 of this ordinance. All other zoning and subdivision regulations must be met. ORDINANCE 20-13 PAGE 4 SECTION 4. The Zoning Ordinance, Chapter 10, Single-Family Residential Zoning Districts: R1- 190, R1-43, R1-35, R1-35H, R1-18, R1-10, R1-10A, R1-8, R1-8A, R1-6, R1-6A, Section 10.02 A. 13. be amended as follows: 13. Guest Houses, PROVIDED THAT THEY attached or detached; provided, that: a. The structure must conform to all minimum setback requirements. b. An attached Guest House may be located in front of the principal building if the Guest House is attached by a four foot wide common wall or doorway. c. Shall not exceed thirty (30) percent of the square footage of the footprint of the livable area of the principal building. d. Shall not exceed fifteen (15) feet in height. e. An attached Guest House shall not contain any of the following: 1. An attached garage. 2. Kitchen facilities (oven or stove). f. Must be connected to principal building’s utilities, and shall not have two-hundred- twenty (220) volt electrical service to any part or common wall, with the exception of a hardwired air conditioning unit. g. Sshall not be used for any commercial or nonresidential uses. SECTION 5. If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is for any reason held to be unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. SECTION 6. The Mayor, the Town Manager, the Town Clerk and the Town Attorney are hereby authorized and directed to execute all documents and take all steps necessary to carry out the purpose and intent of this Ordinance. ORDINANCE 20-13 PAGE 5 PASSED AND ADOPTED by the Mayor and Council of the Town of Fountain Hills, Arizona, this 24th day of August, 2020. FOR THE TOWN OF FOUNTAIN HILLS: ATTESTED TO: Ginny Dickey, Mayor Elizabeth A. Burke, Town Clerk REVIEWED BY: APPROVED AS TO FORM: Grady E. Miller, Town Manager Aaron D. Arnson, Town Attorney City Guest Houses Allowed Kitchens Allowed Miscellaneous standards Fountain Hills Yes No  Guest house, sole use of residences or guests  Attached or detached  Shall not be rented or income producing  Meet setbacks  No kitchens  Detached 15’ max. height  Max. 30% of primary building  Connected to primary building utilities; no 220 volt electric Mesa Yes Yes  If attached or part of primary, separate entry  Max. 35% of primary unit  Must meet setbacks, lot coverage  Served by same water service  No additional parking required Scottsdale Yes N/C, probably  No greater than 50% of primary  Served by same water service  Not rented independently Paradise Valley Yes Not R1-10 N/C, probably  Guest house, residential staff quarters  Designed for occupancy by no more than one family  Own sanitary facilities Cave Creek Yes, DR-43 and larger Yes  Attached or detached  Same water and electric  Single driveway  Not exceed 50% of primary residence Florence Yes By right in RA-10 & RA-4, CUP in R1-R, No in smaller districts N/C Probably  Guest house and guest room  Guest room, no kitchen; not stated for Guest house  Additional parking may be required through the CUP Gilbert Yes No  House family members or non-paying guests  Not equipped for kitchen appliances including 220-volt electric or gas Chandler N/C N/C  Could only find information regarding guest rooms  Guest rooms used only for sleeping purposes Flagstaff Yes Yes  Must meet setbacks of primary  Lot under 1 acre, max 600 sq. ft.  Over 1 acre, max 1000 sq. ft.  1 additional parking space  Same utility service Sedona Yes No  50% of the primary structure up to 750 sq. ft.  Max. of one per lot or parcel  Architecturally compatible  No manufactured homes, trailers or RVs  Same utilities as primary  Same ownership as primary  Same setbacks Apache Junction Yes with Admin Use Permit Yes  Same setbacks  50% of primary unit  Not in front of primary unit  May not be rented separately  25’ max. height  Attached, detached, accessible from primary Payson Yes Yes  Only one unit rented  800 sq. ft. or 33% of primary  Provide sufficient onsite parking for both units  Limits on the number of people in ADU depending on size  Comply with all codes www.fh.az.gov Town of Fountain Hills Staff Presentation Z 2019-01 Large Accessory Structures and Kitchens www.fh.az.gov Background • Town Council in 2019 asked staff to look at the issue of prohibiting kitchens in guest houses • To address this had to also consider: • Definition of Dwelling Unit • Large Accessory Structures www.fh.az.gov Proposed Amendments – Dwelling Unit • Current Dwelling Unit: Dwelling Unit: A building or portion thereof having restricted access to one kitchen or area convertible to kitchen activities, built in accordance to the building code adopted in the Town, or if built prior to incorporation, adopted by Maricopa County, designed exclusively for residential purposes, including single-family and multifamily dwellings; but not including hotels, motels, boarding and lodging houses, fraternity and sorority houses, rest homes and nursing homes, or child care nurseries. www.fh.az.gov Proposed Amendments – Dwelling Unit • Proposed Dwelling Unit: Dwelling Unit: A room or suite of rooms including permanent provisions for living, sleeping, eating, sanitation, and cooking and designed or occupied as separate living quarters. www.fh.az.gov Proposed Amendments – Guest House • Section 10.02 A 13 • Lists Guest House as a use in single-family districts • Establishes development requirements for this use • Similar to but not the same as Large Accessory Building requirements • Proposed – eliminate requirements from this section • 13. Guest House; provided that it shall not be used for any commercial or nonresidential uses. www.fh.az.gov Proposed Amendments – Large Accessory Buildings • Section 5.06 G – Large Accessory Buildings • Amend to include requirements of both sections • Eliminates “no kitchens” and no “220” power provisions www.fh.az.gov Proposed Amendments – Large Accessory Buildings G. Large Accessory Buildings: Large accessory buildings are accessory buildings greater than one-hundred-twenty (120) square feet in size. The following standards apply to all large accessory buildings in any residential zoning district. 1. Any large accessory buildings shall: a. Be no more than thirty (30) percent of the square footage of the footprint of the livable area of the principal building; b. Be connected to the principal building’s utilities; www.fh.az.gov Proposed Amendments – Large Accessory Buildings c. Either share a common wall of at least four (4) feet in length with the principal building or be at least six (6) feet from the principal building; d. Have the same building height allowance as stated in the zoning district regulations for the principal building if the accessory building shares a common wall of at least four (4) feet in length with the principal building; www.fh.az.gov Proposed Amendments – Large Accessory Buildings e. Comply with the building height and setback requirements of the zoning district in which it is located except as provided below: i. If the accessory structure does not share a common wall of at least four (4) feet in length with the principal building, the large accessory building shall be limited to a maximum height of fifteen (15) feet; ii. On corner lots zoned R1-6 through R1-10, accessory buildings separated from the principal building by at least six (6) feet with no physical connection to the principal structure may maintain a rear yard setback equal to the required interior side yard in that zoning district. www.fh.az.gov Proposed Amendments – Large Accessory Buildings f. Be separated from any other building on the same lot by at least six (6) feet; g. Not have any overhead garage doors facing any street front if any portion of the accessory building is constructed in front of the front plane of the principal building; h. Not be located between the street side plane of the principal building and the street side lot line; and, www.fh.az.gov Proposed Amendments – Large Accessory Buildings i. Be constructed of materials and of a color that are the same as the principal building if connected to the principal building or located in front of the front plane of the principal building. 2. At least one additional parking space must be provided for each large accessory building used as a guest house. www.fh.az.gov Options • Approve as submitted • Approve with modifications • Continue • Deny • P&Z Commission recommends approval www.fh.az.gov Questions ITEM 8. E. TOWN OF FOUNTAIN HILLS STAFF REPORT    Meeting Date: 08/24/2020 Meeting Type: Town Council Special Meeting Agenda Type: Regular Agenda Submitting Department: Public Works Prepared by: Justin Weldy, Public Works Director Staff Contact Information: Justin Weldy, Public Works Director Request to Town Council Special Meeting (Agenda Language):  CONSIDERATION OF approving Cooperative Purchase Agreement 2021-005 with A&H Painting for painting the buildings in the Town Hall complex. Staff Summary (Background) The community center, library and museum are scheduled to be painted as part of the reserve analysis the Town conducted in September 2015. It has been approximately 13 years since the buildings of the Fountain Hills Municipal Complex were last painted. Staff requested an award of a contract for painting the Fountain Hills Municipal Complex buildings at a Town Council meeting on February 18, 2020. At the meeting, some Council members expressed concerns and raised questions relating to the preparation of the buildings before painting, the type of primer and paint to be used, paint warranty, and cost. In light of the concerns, Town Manager Grady Miller withdrew the item form the agenda and stated staff would bring the item back after addition research was completed related to the concerns. At the Council meeting, Councilmember Dennis Brown indicated that he had experience with commercial painting and offered to assist staff in further researching the painting project. At the request of Council Member Brown, Brandon Lowe of Dunn Edwards came to the Town Hall Campus to inspect the areas to be painted. Mr. Lowe was very helpful in using his expertise to identify the site preparation and type of paint as well as a revised scope of services for the project. Based on the information received from Dunn Edwards and direction from the Town Manager, staff released a Request for Proposals (RFP) with a due date for submittals of June 24, 2020. The following four proposals were received and reviewed by a panel consisting of Town staff:      A&H Painting Inc.                                        $71,300.00 Fabiani Painting & Decorating.               $135,900.00 ALR Construction Management              $103,380.20 Fix Painting Company.                              $475,700.00 Thanks to Councilmembers who questioned the previous paint contract as well as Councilmember Brown's involvement in the project, the town will not only ensure that the buildings are properly prepped and painted, the town will save approximately $140,000 from the previous contract. The buildings will also have standard warranty coverage of two years on the paint and workmanship. Related Ordinance, Policy or Guiding Principle Capital Facilities Replacement Program.  Risk Analysis Not painting the buildings will result in deterioration of the existing paint and compromise the stucco finish on the buildings. Recommendation(s) by Board(s) or Commission(s) NA Staff Recommendation(s) Staff recommends approval of the cooperative purchasing agreement with A&H Painting Inc. in the amount of $71,300. SUGGESTED MOTION MOVE to approve the contract with A&H Painting Inc. Fiscal Impact Fiscal Impact:71,300.00 Budget Reference:610 Funding Source:Facilities Replacement Fund If Multiple Funds utilized, list here: Budgeted: if No, attach Budget Adjustment Form: Attachments Scope of work  RFP  A&H Solicitation  Professional Services Agreement  Correspondence with Dunn Edwards  Form Review Inbox Reviewed By Date Public Works Director (Originator)Justin Weldy 08/03/2020 10:32 AM Finance Director David Pock 08/03/2020 11:36 AM Town Attorney Aaron D. Arnson 08/03/2020 04:04 PM Town Manager Grady E. Miller 08/04/2020 09:43 AM Form Started By: Justin Weldy Started On: 07/14/2020 04:13 PM Final Approval Date: 08/04/2020  1 EXHIBIT B TO PROFESSIONAL SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND [Scope of Work] - Power wash and remove any loose and peeling paint. - Prepare, paint and finish all surfaces specified and agreed upon. - Compatibility of the paint with the wall surface to be verified prior to painting. - Provide paint finishes of even uniform color, free from cloudy or muddled appearance. - Repair cracks where necessary and spot prime with recommended primer. - Power wash and lightly sand metal window frames and gates, follow same procedure on purple metal structures on Town Hall Building Community Center/Library/Museum Exterior Painting (includes lighting, canopies site walls and monuments) Qty./L.F.* Surface Sub Straight 125259 Stucco 21350 Par-Pits 75 Both Sides Door & Frame Doors & Frames 55 1" to 10" Letters 11 Pipe Bollards Pipe Bollards 76 6' High Gates 3 10X10 Roll up Doors 12 1'x3' Window Frames 184 2'x2' Window Frames 138 2'x3' Window Frames 132 2'x4' Window Frames 22 2'x6' Window Frames 12 3'x3' Window Frames 12 3'x7' Window Frames 38 4'x4' Window Frames 19 4'x7' Window Frames 2345 Canopy Poles Per LF. Canopies 1335 Steal I-Beams Light Poles * All quantities/L.F. are to be verified by submitting party Preferred Dunn Edwards Products for Stucco (equivalent product may be substituted) Spot Prime: FLEX-PRIME Select Interior/Exterior Flexible Masonry Primer (FPSL00) First Coat: EVERSHIELD, Exterior Flat Paint (EVSH10) Second Coat: EVERSHIELD, Exterior Flat Paint (EVSH10) Colors (to be approved by Town prior to application): TOASTED ALMOND PPG1097-3 SWISS COFFEE 50YY 83/057 SAUTEED MUSHROOM PPG1085-5 KANGAROO PPG1078-4 2 Town Hall Canopy, Rails and Accent Color Qty./L.F. Surface Sub Straight 3990 Medium Metal 30 Canopy Poles Per LF. Metal 30 1 Rail Metal 50 2 Rail Metal 15 7 Rail Metal * All quantities/L.F. are to be verified by submitting party Preferred Dunn Edwards Products for Metal and Combinations (equivalent product may be substituted) First Coat: ULTRA-GRIP Premium, Acrylic Multi-Purpose Primer (UGPR00 Series) Second Coat: EVERSHIELD, Exterior Flat Paint (EVSH10) Third Coat: EVERSHIELD, Exterior Flat Paint (EVSH10) Colors (to be approved by Town prior to application): TOASTED ALMOND PPG1097-3 SWISS COFFEE 50YY 83/057 SAUTEED MUSHROOM PPG1085-5 KANGAROO PPG1078-4 TOWN OF FOUNTAIN HILLS PUBLIC WORKS DEPARTMENT REQUEST FOR PROPOSALS Town of Fountain Hills 16705 East Avenue of the Fountains Fountain Hills, Arizona 85268 SOLICITATION INFORMATION AND SELECTION SCHEDULE Solicitation Title: Community Center, Museum & Library Exterior Painting Solicitation Number: 2020-084 Release Date: May 20, 2020 Advertisement Dates: May 20 and 27, 2020 – Fountain Hills Times May 21 and 28, 2020 – Arizona Business Gazette MANDATORY Pre-Submittal Conference: June 4, 2020 3:00 p.m. (local time, Phoenix, Arizona) Fountain Hills Town Hall Council Chambers 16705 East Avenue of the Fountains Fountain Hills, Arizona 85268 Final Date for Inquires June 10, 2020 3:00 p.m. (local time, Phoenix, Arizona) Proposal Due Date and Time: June 24, 2020 3:00 p.m. (local time, Phoenix, Arizona) Oral Interviews (if necessary) Target Town Council Award Date: July 8, 2020 September 15, 2020 Anticipated Agreement Start Date: September 16, 2020 Town Representative: Colby Wattling cwattling@fh.az.gov 480-816-5128 * In the event that a Vendor cannot be selected based solely on Proposals submitted, Oral Interviews may be conducted at the Town’s sole discretion. ** The Town of Fountain Hills reserves the right to amend the solicitation schedule as necessary. *** Due to COVID-19 Concerns the Town of Fountain Hills reserves the right to change the MANDATORY Pre-Submittal Conference and Interview process. TOWN OF FOUNTAIN HILLS SECTION A PUBLIC WORKS DEPARTMENT i TABLE OF CONTENTS Section A Page I. RFP Process, Award of Agreement A-1 II. Proposal Format; Scoring A-6 III. Oral Interviews; Scoring A-9 IV. Vendor Information Form A-10 Section B Sample Professional Services Agreement B-1 TOWN OF FOUNTAIN HILLS SECTION A PUBLIC WORKS DEPARTMENT A-1 PART I. RFP PROCESS; AWARD OF AGREEMENT 1.1 Purpose; Scope of Work. The Town of Fountain Hills (the “Town”) is issuing this Request For Proposals (this “RFP”) seeking proposals (“Proposals”) from qualified, licensed firms (“Vendors”) interested in providing professional services consisting of painting services (the “Services”), as more particularly described in the Scope of Work attached to the sample Professional Services Agreement as Exhibit B, and incorporated herein by reference. In accordance with the Town’s Procurement Code, the Town will accept sealed Proposals for the Services specified in the Scope of Work. 1.2 Preparation/Submission of Proposal. Vendors are invited to participate in the competitive selection process for the Services outlined in this RFP. Responding parties shall review their Proposal submissions to ensure the following requirements are met. A. Irregular or Non-responsive Proposals. The Town shall consider as “irregular” or “non-responsive” and reject any Proposal not prepared and submitted in accordance with this RFP, or any Proposal lacking sufficient information to enable the Town to make a reasonable determination of compliance to the minimum qualifications. Unauthorized conditions, limitations, or provisions shall be cause for rejection. Proposals may be deemed non- responsive at any time during the evaluation process if, in the sole opinion of the Town Manager or authorized designee, any of the following are true: (1) Vendor does not meet the minimum required skill, experience or requirements to perform or provide the Services. (2) Vendor has a past record of failing to fully perform or fulfill contractual obligations. (3) Vendor cannot demonstrate financial stability. (4) Vendor’s Proposal contains false, inaccurate or misleading statements that, in the opinion of the Town Manager or authorized designee, are intended to mislead the Town in its evaluation of the Proposal. B. Submittal Quantities. Interested Vendors must submit one original and four copies (five total submittals) of the Proposal. In addition, interested parties must submit one original copy of the Proposal on a USB Flash Drive or electronic media approved by the Town) in printable Adobe or Microsoft Word format (or other format approved by the Town). Failure to adhere to the submittal quantity criteria shall result in the Proposal being considered non-responsive. C. Required Submittal. The Proposal shall be submitted with a cover letter with an original ink signature by a person authorized to bind the Vendor. Proposals submitted without a cover letter with an original ink signature by a person authorized to bind the Vendor shall be considered non-responsive. The Proposal shall be a maximum of fifteen pages to address the Proposal criteria (excluding resumes and the Vendor Information Form, but including the materials necessary to address project understanding, general information, TOWN OF FOUNTAIN HILLS SECTION A PUBLIC WORKS DEPARTMENT A-2 organizational chart, photos, tables, graphs, and diagrams). Each page side (maximum 8 1/2” x 11”) with criteria information shall be counted. However, one page may be substituted with an 11” x 17” sheet of paper, folded to 8 1/2” x 11”, showing a proposed project schedule or organizational chart and only having information on one side. Cover, back, table of contents and tabs may be used and shall not be included in the page count, unless they include additional project-specific information or Proposal criteria responses. The minimum allowable font for the Proposal is 11 pt, Arial or Times New Roman. Failure to adhere to the page limit, size and font criteria shall result in the Proposal being considered non-responsive. Telegraphic (facsimile), electronic (e-mail) or mailgram Proposals will not be considered. D. Vendor Responsibilities. All Vendors shall (1) examine the entire RFP, (2) seek clarification of any item or requirement that may not be clear, (3) check all responses for accuracy before submitting a Proposal and (4) submit the entire Proposal by the Proposal Due Date and Time. Late Proposals will not be considered. A Vendor submitting a late Proposal shall be so notified. Negligence in preparing a Proposal shall not be good cause for withdrawal after the Proposal Due Date and Time. E. Sealed Submittals. All Proposals shall be sealed and clearly marked with the RFP number and title, (2020-084) Community Center, Museum and Library Exterior Painting, on the lower left hand corner of the mailing envelope. A return address must also appear on the outside of the sealed Proposal. The Town is not responsible for the pre-opening of, post-opening of, or the failure to open, any Proposals not properly addressed or identified. F. Pricing. The Vendor shall submit the same number of copies of the Fee Proposal as described in Subsection 1.2(B) (Submittal Quantities). Pricing shall be inclusive of all of the Services in the Scope of Work as described in the Professional Services Agreement in Exhibit B. A sample Fee Proposal is attached to the Professional Services Agreement as Exhibit C. G. Address. All Proposals shall be directed to the following address: Town Procurement Office, 16705 East Avenue of the Fountains, Fountain Hills, Arizona 85268, or hand-delivered to the Town Procurement Officer by the Proposal Due Date and Time indicated on the cover page of this RFP. H. Pricing Errors. If price is a consideration and in case of error in the extension of prices in the Proposal, the unit price shall govern. Periods of time, stated as number of days, shall be calendar days. I. Proposal Irrevocable. In order to allow for an adequate evaluation, the Town requires the Proposal to be valid and irrevocable for 90 days after the Proposal Due Date and Time indicated on the cover of this RFP. J. Amendment/Withdrawal of Proposal. At any time prior to the specified Proposal Due Date and Time, a Vendor (or designated representative) may amend or withdraw its Proposal. Any erasures, interlineations, or other modifications in the Proposal shall be initialed in original ink by the authorized person signing the Proposal. Facsimile, electronic (e- mail) or mailgram Proposal amendments or withdrawals will not be considered. No Proposal shall be altered, amended or withdrawn after the specified Proposal Due Date and Time. TOWN OF FOUNTAIN HILLS SECTION A PUBLIC WORKS DEPARTMENT A-3 1.3 Cost of Proposal Preparation. The Town does not reimburse the cost of developing, presenting or providing any response to this solicitation. Proposals submitted for consideration should be prepared simply and economically, providing adequate information in a straightforward and concise manner. The Vendor is responsible for all costs incurred in responding to this RFP. All materials and documents submitted in response to this RFP become the property of the Town and will not be returned. 1.4 Inquiries. A. Written Inquiries. Any question related to the RFP, including any part of the Scope of Work, shall be directed to the Town Representative whose name appears on the cover page of this RFP. Questions shall be submitted in writing by the date indicated on the cover page of this RFP. In the event the Town offices are closed on the Final Date for Inquiries, the Vendor may submit the question(s) to the Town Representative via e-mail or voicemail. Any correspondence related to the RFP shall refer to the title and number, page and paragraph. However, the Vendor shall not place the RFP number and title on the outside of any envelope containing questions, because such an envelope may be identified as a sealed Proposal and may not be opened until the Proposal Due Date and Time. B. Inquiries Answered. Verbal or telephone inquiries directed to Town staff will not be answered. Within two business days following the Final Date for Inquiries listed on the cover page of this RFP, answers to all questions received in writing or via e-mail will be mailed, sent via facsimile and/or e-mailed to all parties who obtained an RFP package from the Town and who legibly provided a mailing address, facsimile and/or e-mail address to the Town. No questions, submitted in any form, will be answered after the Final Date for Inquiries. C. Pre-Submittal Conference. A Pre-Submittal Conference may be held. If scheduled, the date and time of this conference will be indicated on the cover page of this RFP. This conference may be designated as mandatory or non-mandatory on the cover page of this RFP. Additionally, if the Pre-Submittal Conference is designated as mandatory, failure to attend shall render that Vendor’s Proposal non-responsive. Vendors are strongly encouraged to attend those Pre-Submittal Conferences designated as non-mandatory. The purpose of this conference will be to clarify the contents of this RFP in order to prevent any misunderstanding of the Town’s requirements. Any doubt as to the requirements of this RFP or any apparent omission or discrepancy should be presented to the Town at this conference. The Town will then determine if any action is necessary and may issue a written amendment or addendum to the RFP. Oral statements or instructions will not constitute amendments or addenda to this RFP. 1.5 Addenda. Any addendum issued as a result of any change in this RFP shall become part of the RFP and must be acknowledged in the Proposal submittal. Failure to indicate receipt of the addendum shall result in the Proposal being rejected as non-responsive. It shall be the Vendor’s responsibility to check for addenda issued to this RFP. Any addendum issued by the Town with respect to this RFP will be available at: Town of Fountain Hills Town Hall, 16705 East Avenue of the Fountains, Fountain Hills, Arizona 85268 Town of Fountain Hills website at: https://www.fh.az.gov/Bids.aspx TOWN OF FOUNTAIN HILLS SECTION A PUBLIC WORKS DEPARTMENT A-4 1.6 Payment Requirements; Payment Discounts. Any Proposal that requires payment in less than 30 calendar days shall not be considered. Payment discounts of 30 calendar days or less will not be deducted from the Proposal Price in determining the low Proposal. The Town shall be entitled to take advantage of any payment discount offered, provided payment is made within the discount period. Payment discounts shall be indicated on Price Sheet. 1.7 Federal Excise Tax; Transaction Privilege Tax. The Town is exempt from Federal Excise Tax, including the Federal Transportation Tax. Transaction privilege tax, if any, shall be included in the unit price for each line item. It shall not be considered a lump sum payment item. 1.8 Public Record. All Proposals shall become the property of the Town and shall become a matter of public record available for review, subsequent to the award notification, in accordance with the Town’s Procurement Code. 1.9 Confidential Information. If a Vendor believes that a Proposal or protest contains information that should be withheld from the public record, a statement advising the RFP Administrator of this fact shall accompany the submission and the information shall be clearly identified. The information identified by the Vendor as confidential shall not be disclosed until the Procurement Agent makes a written determination. The Procurement Agent shall review the statement and information with the Town Attorney and shall determine in writing whether the information shall be withheld. If the Town Attorney determines that it is proper to disclose the information, the RFP Administrator shall inform the Vendor in writing of such determination. 1.10 Vendor Licensing and Registration. Prior to the award of the Agreement, the successful Vendor shall be registered with the Arizona Corporation Commission and authorized to do business in Arizona. The Vendor shall provide licensure information with the Proposal. Corporations and partnerships shall be able to provide a Certificate of Good Standing from the Arizona Corporation Commission. A Town of Fountain Hills business license is also required. 1.11 Certification. By submitting a Proposal, the Vendor certifies: A. No Collusion. The submission of the Proposal did not involve collusion or other anti-competitive practices. B. No Discrimination. It shall not discriminate against any employee or applicant for employment in violation of Federal Executive Order 11246. C. No Gratuity. It has not given, offered to give, nor intends to give at any time hereafter, any economic opportunity, future employment, gift, loan, gratuity, special discount, trip favor or service to a Town employee, officer or agent in connection with the submitted Proposal. It (including the Vendor’s employees, representatives, agents, lobbyists, attorneys, and subcontractors) has refrained, under penalty of disqualification, from direct or indirect contact for the purpose of influencing the selection or creating bias in the selection process with any person who may play a part in the selection process, including the Selection Committee, elected officials, the Town Manager, Assistant Town Managers, Department Heads, and other Town staff. All contact must be addressed to the Town’s Procurement Agent, except TOWN OF FOUNTAIN HILLS SECTION A PUBLIC WORKS DEPARTMENT A-5 for questions submitted as set forth in Subsection 1.4 (Inquiries), above. Any attempt to influence the selection process by any means shall void the submitted Proposal and any resulting Agreement. D. Financial Stability. It is financially stable, solvent and has adequate cash reserves to meet all financial obligations including any potential costs resulting from an award of the Agreement. E. No Signature/False or Misleading Statement. The signature on the cover letter of the Proposal and the Vendor Information Form is genuine and the person signing has the authority to bind the Vendor. Failure to sign the Proposal and the Vendor Information Form, or signing either with a false or misleading statement, shall void the submitted Proposal and any resulting Agreement. F. Professional Services Agreement. In addition to reviewing and understanding the submittal requirements, it has reviewed the attached sample Professional Services Agreement including the Scope of Work and other Exhibits. 1.12 Award of Agreement. A. Selection. A Selection Committee composed of representatives from the Town will conduct the selection process according to the schedule listed on the cover page of this RFP. Proposals shall be opened at the time and place designated on the cover page of this RFP. The Selection Committee shall award the agreement to the responsible and responsive Vendor whose Proposal is determined, in writing, to be the most advantageous to the Town and best meets the overall needs of the Town taking into consideration the evaluation criteria set forth in this RFP. The amount of applicable transaction privilege or use tax of the Town shall not be a factor in determining the most advantageous Proposal, except in those instances in which the award is between a Fountain Hills business and a non-Fountain Hills business. In this event, the applicable municipal business privilege tax shall be included in the non-Fountain Hills business price for evaluation purposes only to determine the best proposal. After the Town has entered into an Agreement with the successful Vendor, the successful Proposal and the scoring documentation shall be open for public inspection. B. Line Item Option. Unless the Proposal states otherwise, or unless otherwise provided within this RFP, the Town reserves the right to award by individual line item, by group of line items, or as a total, whichever is deemed most advantageous to the Town. C. Multiple Award. The Town, at its sole discretion, may elect to enter into Agreements with multiple Vendors who are qualified to provide the Services. The final terms and conditions of the proposed Agreement will be negotiated by the Town with the successful offerors. D. Form of Agreement. The selected Vendor will be required to execute the Town’s standard Professional Services Agreement in a form acceptable to the Town Attorney. A sample of the standard agreement is included with this RFP. If the Town is unsuccessful in negotiating an Agreement with the highest-scoring Vendor, the Town may then negotiate with the second, then third, highest-scoring Vendor until an Agreement is executed. Town Council TOWN OF FOUNTAIN HILLS SECTION A PUBLIC WORKS DEPARTMENT A-6 approval may be required. The Town reserves the right to terminate the selection process at any time. E. Waiver; Rejection; Reissuance. Notwithstanding any other provision of this RFP, the Town expressly reserves the right to: (1) waive any immaterial defect or informality, (2) reject any or all Proposals or portions thereof and (3) cancel or reissue an RFP. F. Protests. Any Vendor may protest this RFP, the proposed award of an Agreement, or the actual award of an Agreement. All protests will be considered in accordance with the Town Procurement Code. 1.13 Offer. A Proposal is an offer to contract with the Town based upon the terms, conditions and specifications contained in this RFP and the Vendor’s responsive Proposal, unless any of the terms, conditions, or specifications are modified by a written addendum or agreement amendment. Provided, however, that no contractual relationship shall be established until the Vendor has signed, and the Town has approved, a professional services agreement between the Town and the Vendor in the form acceptable to the Town Attorney. A sample Professional Services Agreement is included herein. PART II. PROPOSAL FORMAT; SCORING 2.1 Evaluation Process. Each submittal will be reviewed for compliance with the Proposal requirements by the Selection Committee. If necessary, the Selection Committee may conduct oral interviews with up to three of the highest ranked Vendors based upon the Proposal submittal scoring. 2.2 Proposal Format and Scoring. Proposals shall be organized and submitted in the format as outlined below. Failure to conform to the designated format, standards and minimum requirements may result in a determination that the Proposal is non-responsive. Additionally, the Selection Committee will evaluate and award points to each Proposal based upon the evaluation criteria as outlined in this document. Points listed below are the maximum number of points possible for each criterion; there is no minimum number that the Selection Committee must award. A. General Information - 10 pts. (1) One page cover letter as described in Subsection 1.2(C) (Required Submittal). (2) Provide Vendor identification information. Explain the Vendor’s legal organization including the legal name, address, identification number and legal form of the Vendor (e.g., partnership, corporation, joint venture, limited liability company, sole proprietorship). If a joint venture, identify the members of the joint venture and provide all of the information required under this section for each member. If a limited liability company, provide the name of the member or members authorized to act on the company’s behalf. If the Vendor is a wholly owned subsidiary of another company, identify the parent company. If the corporation is a nonprofit corporation, TOWN OF FOUNTAIN HILLS SECTION A PUBLIC WORKS DEPARTMENT A-7 provide nonprofit documentation. Provide the name, address and telephone number of the person to contact concerning the Proposal. (3) Identify the location of the Vendor’s principal office and the local work office, if different. Include any documentation that supports the Vendor’s authority to provide services in Arizona. (4) Provide a general description of the Vendor’s organization, including years in business. (5) Identify any contract or subcontract held by the Vendor or officers of the Vendor that have been terminated within the last five years. Briefly describe the circumstances and the outcome. (6) Identify any claims arising from a contract which resulted in litigation or arbitration within the last five years. Briefly describe the circumstances and the outcome. (7) Vendor Information Form (may be attached as separate appendix). B. Experience and Qualifications of the Vendor - 20 pts. (1) Provide a detailed description of the Vendor’s experience in providing similar services to municipalities or other entities of a similar size to the Town, specifically relating experience with respect to exterior surface preparation and painting services. (2) Vendor must demonstrate successful completion of at least three similar projects within the past 60 months. For the purpose of this Solicitation, “successful completion” means completion of a project within the established schedule and budget and “similar projects” resemble this project in size, nature and scope. Provide a list of at least three organizations for which you successfully completed a similar project. This list shall include, at a minimum, the following information: (a) Name of company or organization. (b) Contact name. (c) Contact address, telephone number and e-mail address. (d) Type of services provided. (e) Dates of contract initiation and expiration. These references will be checked, and it is Vendor’s responsibility to ensure that all information is accurate and current. Vendor authorizes the Town’s representative to verify all information from these references and releases all those concerned from any liability in connection with the information they provide. Inability of the Town to verify references shall result in the Proposal being considered non- responsive. TOWN OF FOUNTAIN HILLS SECTION A PUBLIC WORKS DEPARTMENT A-8 (3) The Town’s representative may conduct any investigation deemed necessary to determine the Vendor’s ability to perform the project. Vendors may be requested to submit additional documentation within 72 hours (or as specified) to assist the Town in its evaluation. C. Key Positions - 20 pts. (1) Identify each key personnel member that will render services to the Town including title and relevant experience required, including the proposed project manager and project staff. (2) Indicate the roles and responsibilities of each key position. Include senior members of the Vendor only from the perspective of what their role will be in providing services to the Town. (3) If a subcontractor will be used for all work of a certain type, include information on this subcontractor. A detailed plan for providing supervision must be included. (4) Attach a résumé and evidence of certification, if any, for each key personnel member and/or subcontractor to be involved in this project. Résumés should be attached together as a single appendix at the end of the Proposal and will not count toward the Proposal page limit. However, each resume shall not exceed two pages in length. D. Project Approach - 20 pts. (1) Describe the Vendor’s approach to performing the required Services in the Scope of Work described in the Professional Services Agreement in Exhibit B, and its approach to contract management, including its perspective and experience on partnering, customer service, quality control, scheduling and staff. (2) Describe any alternate approaches if it is believed that such an approach would best suit the needs of the Town. Include rationale for alternate approaches and indicate how the Vendor will ensure that all efforts are coordinated with the Town’s Representatives. (3) Provide pricing options for different lengths of available warranties for both product used and workmanship. E. Project Schedule - 20 pts. Provide a project schedule showing key project milestones and deliverables. The schedule shall demonstrate Vendor’s ability to meet the designated milestones as listed below. All Services of the successful Vendor must reach full completion and shall not exceed a 60 day period after the Notice to Proceed has been issued by Town. Assumptions used in developing the schedule shall be identified and at a minimum the proposed schedule shall include the following dates. TOWN OF FOUNTAIN HILLS SECTION A PUBLIC WORKS DEPARTMENT A-9 (1) Contract Award Date (2) Notice to Proceed Date (3) Proposed Kick-Off Meeting (4) Project Completion Date F. Pricing - 10 pts. Vendor shall submit the same number of copies of the Fee Proposal as described in Subsection 1.2(F). The Fee Proposal must be provided in the format attached as Exhibit C of the Professional Services Agreement. The Fee Proposal shall list the individual cost for each of the project expenses and shall be provided in a spreadsheet format to enable the Town staff to determine (1) total labor hours, (2) key team member(s) proposed for each task and sub-task and (3) number of management, engineering, technical, drafting and support personnel hours proposed for the project. The hourly rate and staff classification shall be included in the spreadsheet. Identify all other costs to be billed to the project, including project expenses and subcontractor fees. In instances in which the award is between a Fountain Hills business and a non-Fountain Hills business, the applicable city business privilege tax shall be included in the non-Fountain Hills bidder’s price for evaluation purposes only to determine price scoring Total Possible Points for Proposal: 100 PART III. ORAL INTERVIEWS; SCORING In the event that a Vendor cannot be selected based solely on the Proposals submitted, up to three Vendors may be selected for oral interviews. The selected Vendors will be invited to participate in discussions with the Selection Committee on the date indicated on the cover page of this RFP and awarded points based upon the criteria as outlined below. Vendors may be given additional information for these oral interviews. These discussions will relate less to the past experience and qualifications already detailed in the Proposals and relate more to identification of the Vendor’s project approach and to an appraisal of the people who would be directly involved in this Services for this RFP. Oral Interview 20 Experience and Qualifications of the Vendor 40 Key Positions 40 Project Approach 100 Total Possible Points for Oral Interview Total Points Possible for this RFP: 200 TOWN OF FOUNTAIN HILLS SECTION A PUBLIC WORKS DEPARTMENT A-10 IV. VENDOR INFORMATION FORM By submitting a Proposal, the submitting Vendor certifies that it has reviewed the administrative information and draft of the Professional Services Agreement’s terms and conditions and, if awarded the Agreement, agrees to be bound thereto. VENDOR SUBMITTING PROPOSAL FEDERAL TAX ID NUMBER PRINTED NAME AND TITLE AUTHORIZED SIGNATURE ADDRESS TELEPHONE FAX # CITY STATE ZIP DATE WEB SITE: E-MAIL ADDRESS: SMALL, MINORITY, DISADVANTAGED AND WOMEN-OWNED BUSINESS ENTERPRISES (check appropriate item(s): Small Business Enterprise (SBE) Minority Business Enterprise (MBE) Disadvantaged Business Enterprise (DBE) Women-Owned Business Enterprise (WBE) Has the Vendor been certified by any jurisdiction in Arizona as a minority or woman-owned business enterprise? If yes, please provide details and documentation of the certification. TOWN OF FOUNTAIN HILLS SECTION B PUBLIC WORKS DEPARTMENT PROFESSIONAL SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND THIS PROFESSIONAL SERVICES AGREEMENT (this “Agreement”) is entered into as of , 2020, between the Town of Fountain Hills, an Arizona municipal corporation (the “Town”) and , a(n) (the “Consultant”). RECITALS A. The Town issued a Request for Proposals, _____ “_______________” (the “RFP”), a copy of which is on file in the Town Clerk’s Office and incorporated herein by reference, seeking proposals from vendors for _____________________ (the “Services”). B. The Consultant responded to the RFP by submitting a proposal (the “Proposal”), attached hereto as Exhibit A and incorporated herein by reference, and the Town desires to enter into an Agreement with the Consultant for the Services. 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 __________, 2020 (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 to 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 in each subsequent year, (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 any Renewal Term(s) are collectively referred to herein as the “Term.” Upon renewal, the terms and conditions of this Agreement shall remain in full force and effect. TOWN OF FOUNTAIN HILLS SECTION B PUBLIC WORKS DEPARTMENT B-2 2. Scope of Work. Consultant shall provide the Services as set forth in the Scope of Work, attached hereto as Exhibit B and incorporated herein by reference. 3. Compensation. The Town shall pay Consultant an amount not to exceed $ .00 for the Services at the rates as set forth in the Fee Proposal, attached hereto as Exhibit C and incorporated herein by reference. 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. 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. Consultant agrees to warranty as described in “Exhibit E” 10. Indemnification To the fullest extent permitted by law, the Consultant shall indemnify 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 TOWN OF FOUNTAIN HILLS SECTION B PUBLIC WORKS DEPARTMENT B-3 and against any and all 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”) to the extent that such Claims (or actions in respect thereof) are caused by the negligent acts, recklessness or intentional misconduct of the Consultant, its officers, employees, agents, or any tier of subcontractor in connection with Consultant’s work or services 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. 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. TOWN OF FOUNTAIN HILLS SECTION B PUBLIC WORKS DEPARTMENT B-4 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 Section 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 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 TOWN OF FOUNTAIN HILLS SECTION B PUBLIC WORKS DEPARTMENT B-5 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 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 TOWN OF FOUNTAIN HILLS SECTION B PUBLIC WORKS DEPARTMENT B-6 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. TOWN OF FOUNTAIN HILLS SECTION B PUBLIC WORKS DEPARTMENT B-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 TOWN OF FOUNTAIN HILLS SECTION B PUBLIC WORKS DEPARTMENT B-8 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 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 of its agreed Scope of Work as set forth in Section 2 above and Exhibit B. 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. TOWN OF FOUNTAIN HILLS SECTION B PUBLIC WORKS DEPARTMENT B-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. 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. TOWN OF FOUNTAIN HILLS SECTION B PUBLIC WORKS DEPARTMENT B-10 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 E Falcon Drive, Suite 111 Mesa, Arizona 85215 Attn: Aaron D. Arnson, Town Attorney If to Consultant: Attn: 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 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. TOWN OF FOUNTAIN HILLS SECTION B PUBLIC WORKS DEPARTMENT B-11 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 Scope of Work, any Town-approved Purchase Order, the Fee Proposal, the RFP and the Consultant’s Proposal, the documents shall govern in the order listed herein. 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. TOWN OF FOUNTAIN HILLS SECTION B PUBLIC WORKS DEPARTMENT B-12 13.21 Cooperative Purchasing. Specific eligible political subdivisions and nonprofit educational or public health institutions (“Eligible Procurement Unit(s)”) are permitted to utilize procurement agreements developed by the Town, at their discretion and with the agreement of the awarded Consultant. Consultant may, at its sole discretion, accept orders from Eligible Procurement Unit(s) for the purchase of the Materials and/or Services at the prices and under the terms and conditions of this Agreement, in such quantities and configurations as may be agreed upon between the parties. All cooperative procurements under this Agreement shall be transacted solely between the requesting Eligible Procurement Unit and Consultant. Payment for such purchases will be the sole responsibility of the Eligible Procurement Unit. The exercise of any rights, responsibilities or remedies by the Eligible Procurement Unit shall be the exclusive obligation of such unit. The Town assumes no responsibility for payment, performance or any liability or obligation associated with any cooperative procurement under this Agreement. The Town shall not be responsible for any disputes arising out of transactions made by others. 13.22 Special Provisions. [Add here – if any]. [SIGNATURES ON FOLLOWING PAGES] TOWN OF FOUNTAIN HILLS SECTION B PUBLIC WORKS DEPARTMENT B-13 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 Grady E. Miller, Town Manager ATTEST: Elizabeth A. Burke, Town Clerk APPROVED AS TO FORM: ____________________________________ Aaron D. Arnson, Town Attorney (ACKNOWLEDGMENT) STATE OF ARIZONA ) ) ss. COUNTY OF MARICOPA ) On ___________________, 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. Notary Public (Affix notary seal here) [SIGNATURES CONTINUE ON FOLLOWING PAGE] TOWN OF FOUNTAIN HILLS SECTION B PUBLIC WORKS DEPARTMENT B-14 “Consultant” _____________________________, a(n) ___________________________ By: Name: Title: (ACKNOWLEDGMENT) STATE OF ARIZONA ) ) ss. COUNTY OF MARICOPA ) On ________________________, 2020, before me personally appeared _____________ ________________________, the _____________________ of _________________________, a(n) _____________ __________________, whose identity was proven to me on the basis of satisfactory evidence to be the person who he/she claims to be, and acknowledged that he/she signed the above document on behalf of the ________________________. Notary Public (Affix notary seal here) 15 EXHIBIT A TO PROFESSIONAL SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND [Consultant’s Proposal] See following pages. 1 EXHIBIT B TO PROFESSIONAL SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND [Scope of Work] - Power wash and remove any loose and peeling paint. - Prepare, paint and finish all surfaces specified and agreed upon. - Compatibility of the paint with the wall surface to be verified prior to painting. - Provide paint finishes of even uniform color, free from cloudy or muddled appearance. - Repair cracks where necessary and spot prime with recommended primer. - Power wash and lightly sand metal window frames and gates, follow same procedure on purple metal structures on Town Hall Building Community Center/Library/Museum Exterior Painting (includes lighting, canopies site walls and monuments) Qty./L.F.* Surface Sub Straight 125259 Stucco 21350 Par-Pits 75 Both Sides Door & Frame Doors & Frames 55 1" to 10" Letters 11 Pipe Bollards Pipe Bollards 76 6' High Gates 3 10X10 Roll up Doors 12 1'x3' Window Frames 184 2'x2' Window Frames 138 2'x3' Window Frames 132 2'x4' Window Frames 22 2'x6' Window Frames 12 3'x3' Window Frames 12 3'x7' Window Frames 38 4'x4' Window Frames 19 4'x7' Window Frames 2345 Canopy Poles Per LF. Canopies 1335 Steal I-Beams Light Poles * All quantities/L.F. are to be verified by submitting party Preferred Dunn Edwards Products for Stucco (equivalent product may be substituted) Spot Prime: FLEX-PRIME Select Interior/Exterior Flexible Masonry Primer (FPSL00) First Coat: EVERSHIELD, Exterior Flat Paint (EVSH10) Second Coat: EVERSHIELD, Exterior Flat Paint (EVSH10) Colors (to be approved by Town prior to application): TOASTED ALMOND PPG1097-3 SWISS COFFEE 50YY 83/057 SAUTEED MUSHROOM PPG1085-5 KANGAROO PPG1078-4 2 Town Hall Canopy, Rails and Accent Color Qty./L.F. Surface Sub Straight 3990 Medium Metal 30 Canopy Poles Per LF. Metal 30 1 Rail Metal 50 2 Rail Metal 15 7 Rail Metal * All quantities/L.F. are to be verified by submitting party Preferred Dunn Edwards Products for Metal and Combinations (equivalent product may be substituted) First Coat: ULTRA-GRIP Premium, Acrylic Multi-Purpose Primer (UGPR00 Series) Second Coat: EVERSHIELD, Exterior Flat Paint (EVSH10) Third Coat: EVERSHIELD, Exterior Flat Paint (EVSH10) Colors (to be approved by Town prior to application): TOASTED ALMOND PPG1097-3 SWISS COFFEE 50YY 83/057 SAUTEED MUSHROOM PPG1085-5 KANGAROO PPG1078-4 1 EXHIBIT C TO PROFESSIONAL SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND [Fee Proposal] See following page(s). 2 EXHIBIT D TO PROFESSIONAL SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND Rendered Sample Exterior Images See following page(s). 3 Body 1 D TOASTED ALMOND PPG1097-3 Body 2 D Swiss Coffee 50YY 83/057 Body 3 D Entry D SAUTEED MUSHROOM PPG1085-5 Door D Door Trim D Window Frame D KANGAROO PPG1078-4 4 Body 1 E Entry E SAUTEED MUSHROOM PPG1085-5 Body 2 E Swiss Coffee 50YY 83/057 Body 3 E TOASTED ALMOND PPG1097-3 Door E Door Trim E Window Frame E KANGAROO PPG1078-4 5 Body 1 Column Entry SAUTEED MUSHROOM PPG1085-5 Body 2 Swiss Coffee 50YY 83/057 Body 3 TOASTED ALMOND PPG1097-3 Body 4 Door Door Trim Window Frame KANGAROO PPG1078-4 P.O. Box 10126 Ph: (602) 439-1484 Glendale AZ 85318 Fax: (602) 896-3057 www.aandhpainting.com Glenda@aandhpainting.com SBE, DBE Certified / EPA Lead Safe Certified ROC204854 ROC314024 June 24th, 2020 Town of Fountain Hills Public Works Department 16705 East Avenue of the Fountains Fountain Hills, AZ 85268 Ref: Solicitation # 2020-084 – Community Center, Museum & Library Exterior Painting Dear Sir / Madam, A & H Painting Inc. understands the scope of work indicated on this solicitation, and we possess the experience to perform this project as we have provided painting services for Government Entities throughout Arizona for the past 17 years. We not only understand the scope of work and we are also very familiar with the products indicated on the solicitation, we also guarantee all of our work will be completed by our own crews, not sub-contractors to guarantee you will receive: - The quality of our work – Our crews have been working with us for many years and they are all trained to reach the highest standards of quality. A Superintendent will always be on site controlling quality, safety and to attend any requests from our customers. - Top quality products - only the products requested by owner will be used in the project following the Manufacturer’s guidelines for each product. We handle an “open storage container” policy for our customers, which means at any time during the project their representative on site can request access to inspect all the products we are using to complete the project. - Safety – Keeping our customers and their properties safe is a top priority for us, using only our own work force we guarantee only our employees are gaining access to school campus and all of them have passed a 10-year background check. We will appreciate the opportunity to work with The Town of Fountain Hills on this project so you can experience we have been the preferred painting contractor for most Cities in the State of AZ and why A & H Painting Inc. is the painting firm with more Government Contracts in the State of Arizona for painting services. Best Regards, Glenda W. Hernandez President P.O. Box 10126 Ph: (602) 439-1484 Glendale AZ 85318 Fax: (602) 896-3057 www.aandhpainting.com Glenda@aandhpainting.com SBE, DBE Certified / EPA Lead Safe Certified ROC204854 ROC314024 Town of Fountain Hills Public Works Department 16705 East Avenue of the Fountains Fountain Hills, AZ 85268 Ref: Solicitation # 2020-084 – Community Center, Museum & Library Exterior Painting ADDENDUM # 1 - NOTED TOWN OF FOUNTAIN HILLS SECTION A PUBLIC WORKS DEPARTMENT A-10 IV. VENDOR INFORMATION FORM By submitting a Proposal, the submitting Vendor certifies that it has reviewed the administrative information and draft of the Professional Services Agreement’s terms and conditions and, if awarded the Agreement, agrees to be bound thereto. VENDOR SUBMITTING PROPOSAL FEDERAL TAX ID NUMBER PRINTED NAME AND TITLE AUTHORIZED SIGNATURE ADDRESS TELEPHONE FAX # CITY STATE ZIP DATE WEB SITE: E-MAIL ADDRESS: SMALL, MINORITY, DISADVANTAGED AND WOMEN-OWNED BUSINESS ENTERPRISES (check appropriate item(s): Small Business Enterprise (SBE) Minority Business Enterprise (MBE) Disadvantaged Business Enterprise (DBE) Women-Owned Business Enterprise (WBE) Has the Vendor been certified by any jurisdiction in Arizona as a minority or woman-owned business enterprise? If yes, please provide details and documentation of the certification. P.O. Box 10126 Ph: (602) 439-1484 Glendale AZ 85318 Fax: (602) 896-3057 www.aandhpainting.com Glenda@aandhpainting.com SBE, DBE Certified / EPA Lead Safe Certified ROC204854 ROC314024 A. General Information Coronado High School Exterior Painting P.O. Box 10126 Ph: (602) 439-1484 Glendale AZ 85318 Fax: (602) 896-3057 www.aandhpainting.com Glenda@aandhpainting.com SBE, DBE Certified / EPA Lead Safe Certified ROC204854 ROC314024 A) GENERAL INFORMATION ➢ Name A & H Painting, Inc. ➢ Year Incorporated 2003 ➢ Place of Incorporation Arizona ➢ Physical Address 2375 E. Camelback Rd. Suite 600 Phoenix AZ 85016 ➢ Mailing Address P.O. Box 10126, Glendale AZ 85318 ➢ Form of business S-Corp ➢ Primary Contact Glenda W. Hernandez - Office (602) 439-1484 Glenda@aandhpainting.com ➢ Alternate Contact Ivan Alvarenga - Cell (602)228-2831 Ivan.alvarenga@aandhpainting.com ➢ Bonding Capacity $3,000,000.00 ➢ Insurance Coverage $5,000,000.00 ➢ Worker’s Comp $3,000,000.00 LICENSES HELD: ➢ ROC204854 - PAINTING & WALLCOVERING ➢ ROC314024 – GENERAL CONTRACTOR – KB2 Incorporated in 2003, A & H Painting, Inc. is one of Arizona’s fastest growing contractors. Our professionalism and high-performance standards have helped us establish long-term relationships with both public and private sector customers. During the past Seventeen years, we have successfully performed contracts for all the major cities in Arizona as well as for school districts, state universities and other government entities. ➢ No Sub-contractors are used in any of our projects ➢ No Contract has ever been terminated to A & H Painting, Inc. ➢ No Claims. P.O. Box 10126 Ph: (602) 439-1484 Glendale AZ 85318 Fax: (602) 896-3057 www.aandhpainting.com Glenda@aandhpainting.com SBE, DBE Certified / EPA Lead Safe Certified ROC204854 ROC314024 B. Experience and Qualifications P.O. Box 10126 Ph: (602) 439-1484 Glendale AZ 85318 Fax: (602) 896-3057 www.aandhpainting.com Glenda@aandhpainting.com SBE, DBE Certified / EPA Lead Safe Certified ROC204854 ROC314024 B) EXPERIENCE AND QUALIFICATIONS From Start to Finish, A & H Painting, Inc. is dedicated to the concept of total customer satisfaction. Our success is based on complete planning, scheduling, cost control, closely monitored safety procedures and rigorous quality inspections for every project. Government owned properties: A & H Painting, Inc. has completed a variety of projects new and repaints including Hospitals, Water Treatment Plants (including special coatings for their water reservoir, pipes and tanks), Police Stations, Fire Stations including the award-winning Phoenix Fire Training Academy and 911 Operations Center buildings, both projects with “LEED Green Building Certification”, Parks, Water Parks, Apartment Complexes, Painting and Epoxy floors at different warehouses at Sky Harbor Airport. Public Housing: Under Federally Funded Projects (HUD) since 2010 we have completed more than 2500 site homes repaint projects for City of Phoenix, several housing complexes for City of Glendale Housing, more than 300 Site Homes for City of Chandler Housing Department. Educational Institutions: we have completed several painting, weatherization and special coatings projects for Cave Creek Unified School District, Phoenix Union High School District, Scottsdale Unified School District, Tempe Elementary School District, Balz Elementary School District, Paradise Valley School District, Deer Valley School District, Peoria Unified School District, Casa Grande High School District, Arizona Community College & Arizona State University. P.O. Box 10126 Ph: (602) 439-1484 Glendale AZ 85318 Fax: (602) 896-3057 www.aandhpainting.com Glenda@aandhpainting.com SBE, DBE Certified / EPA Lead Safe Certified ROC204854 ROC314024 SIMILAR PROJECTS RECENTLY COMPLETED CUSTOMER NAME PROJECT DESCRIPTION START FINISH Scottsdale Unified School District Dennis J Roehler Director of Facilities droehler@susd.org 480.415.8564 Exterior painting of entire campus at Coronado High School Exterior painting of entire campus at Desert Canyon Middle & Elementary School. Tavan Elementary School March 2020 March 2019 May 2020 May 2019 Paradise Valley Unified School District Joseph A. Ramire Facilities and Construction Project Lead jramire@pvlearners.net 602-826-6965 Exterior painting of entire campus at: Hidden Hills Elementary School Interior Painting for the following Schools: Copper Canyon Elementary School Greenway Middle School James P. Lee Elementary School Echo Mountain Elementary May 2020 June 2020 City of Phoenix – Housing Department Lupe Martinez Building Maintenance Foreman lupe.martinez@phoenix.gov 602-526-2960 Exterior & Interior painting of several City Owned Housing Sites & Complexes. *Part of Maintenance Contract that has been renewed for the past 10 Years. 2010 2020 Current City of Tempe Nathan Hull Plant Supervisor Nathan_Hull@tempe.gov 480-267-2014 Exterior Painting for buildings at Water Treatment Plant Epoxy Floors & Walls at interior Special Coatings for Water Pipes at Reservoir Tanks Jan 2019 Feb 2019 P.O. Box 10126 Ph: (602) 439-1484 Glendale AZ 85318 Fax: (602) 896-3057 www.aandhpainting.com Glenda@aandhpainting.com SBE, DBE Certified / EPA Lead Safe Certified ROC204854 ROC314024 CURRENT STATE COOPERATIVE CONTRACTS A & H Painting, Inc. has been privileged to hold several multi-year Painting Services Contracts with different Government & School Entities in Arizona. These are the contracts we are currently serving. 1GPA Paradise Valley Unified School District Contract IFB-18-11-PV SPO Arizona Department of Administration Contract ADSP016-103613 MOHAVE Educational Services Contract 20A-A&H-0404 SAVE City of Phoenix Public Works Contract 4701006674 Phoenix Union High School District Contract IFB-1-917 City of Phoenix Housing/ HUD Contract 4701000437 City of Chandler Housing /HUD Contract H06-910-3660 City of Mesa Public Works Contract 20181 City of Tempe Contract T-16-206-11 Tempe Elementary School District Contract IFB-1916-23 Mesa Public Schools Contract IFB-2067MB P.O. Box 10126 Ph: (602) 439-1484 Glendale AZ 85318 Fax: (602) 896-3057 www.aandhpainting.com Glenda@aandhpainting.com SBE, DBE Certified / EPA Lead Safe Certified ROC204854 ROC314024 C. Key Positions Carl Hayden High School Exterior and Interior Painting P.O. Box 10126 Ph: (602) 4391484 Glendale AZ 85318 Fax: (602) 896-3057 www.aandhpainting.com Glenda@aandhpainting.com SBE, DBE Certified / EPA Lead Safe Certified ROC204854 ROC314024 KEY POSITIONS o Glenda W. Hernandez, President 29 years in construction industry, 16 of those years managing A & H Painting, Inc. completing projects for an average of $24+Million. Glenda Oversees all aspects of business for A & H Painting Inc. including Sales and creating new business opportunities, Service Contract’s administration. Fully Bilingual (English / Spanish) o Bachelor’s Degree - Business Administration & Marketing (UTH -Universidad Tecnologica de Honduras) o Bachelor’s Degree - Computer Programming and Design. (UNITEC) o Certificate of completion (Turner School of Construction) “Construction Management and Profitability” (Job Order Contracting, Job Profitability, Time vs. Cost analysis and controls, Government Purchasing procedures) o Certificate of completion (Bluebeam) “Bluebeam Revu/CAD for General Contractors” (Document control, Drawing Management, RFI Management, Takeoff & Estimation, Punch & Back Check) o Certificate of completion (AAAME) “Academy for Advancement of Small Business Owners” (Payroll rules and regulations, Hiring procedures, Profitability, Construction Job Costing, Budgeting and Forecast. o Certificate of completion (SC Johnson College of Business – eCornell) “Executive Leadership” o OSHA – Construction Trainer Certificate o EPA – Lead Safe Trainer Certificate o Rosa Perez, Chief Financial Officer (Accounting) 35 years of experience in the Finance and Management industry; serving A & H Painting as a CFO since 2015. Rosa manages the Accounting Department and works directly with our CPA and banks. Fully Bilingual (English / Spanish o Bachelor’s Degree – Accounting & Finances – (Universidad Nacional Autonoma de Mexico) P.O. Box 10126 Ph: (602) 4391484 Glendale AZ 85318 Fax: (602) 896-3057 www.aandhpainting.com Glenda@aandhpainting.com SBE, DBE Certified / EPA Lead Safe Certified ROC204854 ROC314024 o Ivan Alvarenga, Project Manager – (Estimates, site walks, project scheduling) 30 years in construction industry, 15 years as Project Manager with A & H Painting, Inc. Ivan handles all the planification of projects from estimating, execution of work and labor force management for each project. He conducts pre-construction meetings with customers as well as final inspections walks with customers to provide them with all the project information for their files like draw-downs, additional paints and to deliver and explain our Letter of Warranty that will be effective starting the day they are accept and approve the work as completed. Fully Bilingual (English / Spanish) o Certificate of completion (Cornell University) “Project Leadership for Construction Industry” o Certificate of completion (Turner School of Construction) “Construction Management and Profitability” (Job Order Contracting, Job Profitability, Time vs. Cost analysis and controls, Government Purchasing procedures. o Certificate of Completion (ASU School of Construction) “Alternative Building Methods” (Job Order Contracting, Design Bid Build, CM at Risk and Design Build. o More than $20Million in projects completed for A & H Painting Inc. o OSHA – Construction Trainer Certificate o EPA – Lead Safe Trainer Certificate o Josue Hernandez, Superintendent & Quality Control (Day to Day operation on field) 10 years in construction industry, 6 years as Field Superintendent with A & H Painting, Inc. He manages all our Field Supervisors and their crews, he is responsible of quality control, and schedules at the job site. He is the immediate contact on site for customers to go over the details of the project and help them with any special requests they might have. Fully Bilingual (English / Spanish) • Environmental & Forest Science Engineer (Universidad Nacional de Ciencias, Honduras) • EPA – Lead Safe Trainer Certificate : FIELD CREW AND YEARS OF EXPERIENCE EMPLOYEE NAME POSITION YEARS OF EXPERIENCE Javier Garcia Luna Field Supervisor 25 years Mario Lomelli Foreman 15 years Miguel Izaguirre Foreman 15 Years Manuel Hernandez Foreman 13 Years John Reyes Painter 12 Years Joseph Terlaje Painter 12 Years Danny Rodriguez Painter 7 Years Gilbert Ortiz Painter 8 Years Fredy Baladez Painter 9 Years Luis Ochoa Painter 12 Years Gilberto Izaguirre Painter 8 Years Jose M. Flores Painter 10 Years Enrique Rodriguez Painter 7 Years Joaquin Granados Painter 6 Years Sergio Jaramillo Painter 7 Years Jose Sepulveda Painter 12 Years Ernesto Galindo Painter 10 Years Francisco Murillo Painter 9 Years SBE, DBE Certified / EPA Lead Safe Certified P.O. Box 10126 Glendale AZ 85318 www.AandHPainting.com Phone: (602) 439-1484 Fax: (602) 896-3057 Glenda@aandhpainting.com P.O. Box 10126 Ph: (602) 439-1484 Glendale AZ 85318 Fax: (602) 896-3057 www.aandhpainting.com Glenda@aandhpainting.com SBE, DBE Certified / EPA Lead Safe Certified ROC204854 ROC314024 D. Project Approach Marana Hospital – Interior / Exterior Painting P.O. Box 10126 Ph: (602) 439-1484 Glendale AZ 85318 Fax: (602) 896-3057 www.aandhpainting.com Glenda@aandhpainting.com SBE, DBE Certified / EPA Lead Safe Certified ROC204854 ROC314024 COMMUNITY CENTER, MUSEUM & LIBRARY EXTERIOR PAINTING – SOLICITATION # 2020-084 METHOD OF APPROACH Project Scope of Work EXTEROR PAINTING FOR COMMUNITY CENTER, LIBRARY AND MUSEUM. Power wash all surfaces to be painted to remove any loose and peeling paint, prepare all surfaces, seal all cracks, brush wire cleaning of metals to remove any rust, light sand metals, apply rust preventive primer on metals affected, prime all areas as necessary for a uniform appearance, apply two coats of Evershield Paint from Dunn Edwards. Clean all areas after project completion Method of Approach Once an award is received customer will receive a Certificate of Insurance to cover the project, we will order drawdowns with the colors requested and provide 3 sets to the customer during the pre-construction meeting, two for the customer to keep and one to be signed and returned to us. During the pre-construction meeting we will discuss and identify the following areas and also discuss these procedures: ✓ High traffic areas that will be better to do during evenings or weekends to avoid interrupting the normal operation of the building. (We will accommodate this schedule with NO additional cost to customer) ✓ Areas the customer would like to have completed first. ✓ Areas that will need to have parking areas without vehicles close by. ✓ Any specific area that requires additional attention will be discussed and a plan to facilitate the project will be prepared. ✓ Areas to locate our storage container, boom lifter, and the dumpster for all the trash P.O. Box 10126 Ph: (602) 439-1484 Glendale AZ 85318 Fax: (602) 896-3057 www.aandhpainting.com Glenda@aandhpainting.com SBE, DBE Certified / EPA Lead Safe Certified ROC204854 ROC314024 the project generates. ✓ Access to building when interior face of doors will be painted. ✓ Customer’s Lead person for the project. ✓ Any special policies the Town of Fountain Hills would like us to follow. Once all the administrative portion of the project is completed, we will proceed to bring our equipment, order products and start the project as per the proposed schedule attached. ** During the current COVID-19 Pandemic and to minimize exposure of Employees, Visitors and our crew, we prefer to complete the high traffic areas when the building is closed, mainly during weekends. We have implemented this procedure with City of Phoenix at no additional cost and would gladly offer the same for The Town of Fountain Hills. Communication on site: For any issues on site, contact Field Superintendent MJ Hernandez (602) 501-1591 or our Project Manager Ivan Alvarenga (602) 228-2831. For changes on scope written request needs to be emailed to Glenda@aandhpainting.com Project Closing Once the final walk is completed and the final Punch List is signed off, we will proceed to: ✓ Final cleanup of all floors at areas painted (power wash where it is possible) ✓ Deliver extra paint to customer for touch ups. ✓ Deliver our 2-Year Warranty Letter to Customer (see sample attached) ✓ Order to pick up our equipment on site. WARRANTY LETTER Project SAMPLE Owner SAMPLE PROJECT DESCRIPTION: Exterior Painting as per scope of work dated _____________ Estimate # _______________ Services covered Exterior Painting per P.O. (SAMPLE) We the undersigned, herby warrant and/or guarantee that the PAINTING work, which we have performed on the above-mentioned project, will fulfill all of the warranty or guarantee requirements included in the contract documents. We hereby agree to replace at our sole cost and expense any or all materials adjudged defective or improperly installed during a period TWO (2) YEARS from the date of completion (__________) All guarantees will accrue to the benefit of the Owner, their successors or assigns. Exclusions: areas exposed to sprinklers or other water infiltration unless waterproofed by A & H Painting, any area repaired or touched up by owner, ordinary wear and tear, and abuse or neglect by owner or occupants. In the event of our failure to comply with the above-mentioned conditions within 10 business days (excluding weekends and holidays), or two (5) business days if the condition is considered an “emergency”, after being notified in writing, we the undersigned, do hereby authorize the Owner to have said defects, repairs, and/or replacements made good and we will refund to the Owner on demand all costs and charges therefore. • An emergency includes, but is not limited to defects or improperly installed items that pose a health hazard, fire risk, property damage, or loss of business revenue. We acknowledge that failure to suitably and fully honor our guarantee-warranty may further subject us to the requirements of the warranties in accordance with Arizona Revised Statues and the Arizona Registrar of Contractors. By: A & H PAINTING, INC. SIGNATURE: ____________________________ DATE;____________________ NAME: GLENDA HERNANDEZ TITLE: President _____ STATE LICENSE NUMBER: 20020037 ROC204854 Local representative to be contacted for maintenance, repair and/or replacement service: CONTACT: GLENDA HERNANDEZ PHONE: 602-439-1484 SBE, DBE Certified / EPA Lead Safe Certified ROC204854 ROC194979 P.O. Box 10126 Glendale AZ 85318 www.AandHPainting.com Phone: (602) 439-1484 Fax: (602) 896-3057 Glenda@aandhpainting.com P.O. Box 10126 Ph: (602) 439-1484 Glendale AZ 85318 Fax: (602) 896-3057 www.aandhpainting.com Glenda@aandhpainting.com SBE, DBE Certified / EPA Lead Safe Certified ROC204854 ROC314024 E. Project Schedule Computer’s Commons – ASU Exterior Painting Cr ea te PROJECT TITLE FOUNTAIN HILLS -2020-084 Community Center, Library and Museum Exterior Painting Enter the name of the Project Lead in cell B3. Enter the Project Start date in cell E3. Pooject Start: label is in cell C3.Th e Di Lead: Ivan Alvarenga 1 Ce 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16Th is ro TASK ASSIGNED TO PROGRESS START END M T W T F S S M T W T F S S M T W T F S S M T W T F S S M T W T F S S M T W T F S SCe ll B Pre-Construction & AdministrativeCe ll B Contract Award Date Owner 0%7/6/20 7/6/20R o w Notice to Proceed Owner 0%7/8/20 7/8/20 Kick-Off Meeting Owner / Contractor 0%7/10/20 7/10/20 Move in Equipment Contractor 0%7/10/20 7/10/20Th e ce Painting Power Wash, Prep Areas to be coordinated 0%7/13/20 7/17/20 Prime and Paint Areas to be coordinated 0%7/20/20 8/5/20 Punch List Walk Owner/Contractor 0%8/6/20 8/6/20 Punch list completion Contractor 0%8/6/20 8/7/20 Final Walk / Project Acceptance 0%8/7/20 8/7/20 Sample phase title blockProject Closing Final Clean Up - Power wash floors 0%8/7/20 8/7/20 Deliver Extra Paint Contractor 0%8/10/20 8/10/20 Deliver Warranty Letter Contractor 0%8/10/20 8/10/20 Send Invoice Contractor 0%8/11/20 8/11/20 This is an empty rowTh is ro * All dates are tentative Mon, 7/6/2020 Jul 06,2020 Jul 13, 2020 Jul 20, 2020 Jul 27, 2020 Project Start: Display Week: Cell: (602)228-2831 Aug 3, 2020 Aug 10, 2020 P.O. Box 10126 Ph: (602) 439-1484 Glendale AZ 85318 Fax: (602) 896-3057 www.aandhpainting.com Glenda@aandhpainting.com SBE, DBE Certified / EPA Lead Safe Certified ROC204854 ROC314024 F. Pricing Central High School – Exterior Painting ESTIMATE Date 6/24/2020 Estimate No. 062420-01 Name/Address Town of Fountain Hills 16705 East Avenue of the Fountains Fountain Hills, AZ 85268 Ship To Community Center, Museum & Library A&H Painting, Inc. PO BOX 10126 GLENDALE, AZ 85318 Ph: 602-439-1484 Fax 602-896-3057 www.aandhpainting.com Terms Net 30 Project Name / # 2020-084 Contract # TBC Non Taxable - Repair/Maintenance by owner Total Subtotal Sales Tax (0.0%) Description Qty Rate Total Exterior Painting for Community Center, Museum & Library per scope of work & specifications in Solicitation # 2020-084 All Labor Required to complete this project including supervisory and administrative personnel 1 39,700.00 39,700.00 All Materials required to complete this project 1 23,500.00 23,500.00 Equipment Rental including: Dumspter and trash haul-away service, Storage Container, Boom lifters and any necessary equipment to complete this project, includes all fees. 1 8,100.00 8,100.00 * Non-Taxable Sale - Code 500 Maintenance Repair By Owner PRODUCTS: Dunn Ewards Ultra-Grip Primer Evershield Paint Thank you for the opportunity!! $71,300.00 $71,300.00 $0.00 1 Contract No. 2021-005 PROFESSIONAL SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND A&H PAINTING, INC. THIS PROFESSIONAL SERVICES AGREEMENT (this “Agreement”) is entered into as of August 24, 2020, between the Town of Fountain Hills, an Arizona municipal corporation (the “Town”) and A&H Painting, Inc., a(n) Arizona corporation (the “Vendor”). RECITALS A. The Town issued a Request for Proposals, RFP No. 2020-084 (the “RFP”), a copy of which is on file with the Town and incorporated herein by reference, seeking proposals from vendors interested in providing professional services consisting of Community Center, Museum & Library Exterior Painting work (the “Services”). B. The Vendor responded to the RFP by submitting a proposal (the “Proposal”), attached hereto as Exhibit A and incorporated herein by reference. C. The Town desires to enter into an Agreement with the Vendor to perform the Services, as set forth 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 Vendor 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 August 23, 2021, unless terminated as otherwise provided in this Agreement. 2. Scope of Work. Vendor shall provide the Services as set forth in Exhibit A. 3. Compensation. The Town shall pay the Vendor an aggregate amount not to exceed $71,300.00, at the rates set forth in Exhibit A. 4. Payments. The Town shall pay the Vendor 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. 2 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. Vendor Personnel. Vendor shall provide adequate, experienced personnel, capable of and devoted to the successful performance of the Services under this Agreement. Vendor agrees to assign specific individuals to key positions. If deemed qualified, the Vendor is encouraged to hire Town residents to fill vacant positions at all levels. Vendor 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, Vendor 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 Vendor’s performance. The Vendor shall provide and maintain a self-inspection system that is acceptable to the Town. 8. Licenses; Materials. Vendor shall maintain in current status all federal, state and local licenses and permits required for the operation of the business conducted by the Vendor. The Town has no obligation to provide Vendor, 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 Vendor. 9. Performance Warranty. Vendor 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. 10. Indemnification. To the fullest extent permitted by law, the Vendor 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 any and all 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 Vendor, 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. 3 A. Insurer Qualifications. Without limiting any obligations or liabilities of Vendor, Vendor 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 Vendor. 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 Vendor 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. E. Primary Insurance. Vendor’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 Vendor. Vendor shall 4 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. Vendor 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, Vendor 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 Vendor. Vendor 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, Vendor 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 Vendor’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 Vendor’s responsibility to forward renewal certificates and declaration page(s) to the Town 30 days 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. 5 (b) Auto Liability – Under ISO Form CA 20 48 or equivalent. (c) Excess Liability – Follow Form to underlying insurance. (2) Vendor’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 Vendor 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. Vendor 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 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. Vendor shall maintain Business Automobile Liability insurance with a limit of $1,000,000 each occurrence on Vendor’s owned, hired and non-owned vehicles assigned to or used in the performance of the Vendor’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 6 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 Vendor engages in any professional services or work in any way related to performing the work under this Agreement, the Vendor shall maintain Professional Liability insurance covering negligent errors and omissions arising out of the Services performed by the Vendor, or anyone employed by the Vendor, or anyone for whose negligent acts, mistakes, errors and omissions the Vendor 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. Vendor shall maintain Workers’ Compensation insurance to cover obligations imposed by federal and state statutes having jurisdiction over Vendor’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 Vendor of written notice by the Town. Upon termination for convenience, Vendor 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 Vendor for the undisputed portion of its fee due as of the termination date. 7 12.3 Due to Work Stoppage. This Agreement may be terminated by the Town upon 30 days’ written notice to Vendor 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 Vendor 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 Vendor 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 Vendor, 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 Vendor or any agent or representative of the Vendor 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 Vendor 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 Vendor 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 Agreement shall terminate at the end of then-current fiscal year and the Town and the Vendor 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 Vendor 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. Vendor, 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 Vendor, its employees or subcontractors. The Vendor, and not the Town, shall determine the time of its performance of the services provided under this Agreement so long as Vendor meets the requirements as agreed in Section 2 above and in Exhibit 8 A. Vendor is neither prohibited from entering into other contracts nor prohibited from practicing its profession elsewhere. Town and Vendor 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. Vendor 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 Vendor 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 Vendor. 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. 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 Vendor without prior, written permission of the Town, signed by the Town Manager. Any attempted assignment or delegation by Vendor in violation of this provision shall be a breach of this Agreement by Vendor. 9 13.9 Subcontracts. No subcontract shall be entered into by the Vendor with any other party to furnish any of the material or services specified herein without the prior written approval of the Town. The Vendor 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 Vendor. 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 Vendor 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. A. Offset for Damages. In addition to all other remedies at law or equity, the Town may offset from any money due to the Vendor any amounts Vendor 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 Vendor any amounts Vendor 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 10 With copy to: Pierce Coleman PLLC 4711 East Falcon Drive, Suite 111 Mesa, Arizona 85215 Attn: Aaron D. Arnson, Town Attorney If to Vendor: A&H Painting, Inc. P.O. Box 10126 Glendale, Arizona 85318 Attn: Glenda W. Hernandez 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 Vendor 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 employees, except as required to perform Vendor’s duties under this Agreement. Persons requesting such information should be referred to the Town. Vendor also agrees that any information pertaining to individual persons shall not be divulged other than to employees or officers of Vendor as needed for the performance of duties under this Agreement. 13.16 Records and Audit Rights. To ensure that the Vendor and its subcontractors are complying with the warranty under subsection 13.17 below, Vendor’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 Vendor 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 Vendor’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 Vendor’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, Vendor 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 11 and until three years after the date of final payment by the Town to Vendor pursuant to this Agreement. Vendor 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 Vendor or its subcontractors reasonable advance notice of intended audits. Vendor 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 Vendor 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). Vendor’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. Vendor 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. 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. 12 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 Grady E. Miller, Town Manager ATTEST: Elizabeth A. Burke, Town Clerk APPROVED AS TO FORM: Aaron D. Arnson, Town Attorney (ACKNOWLEDGMENT) STATE OF ARIZONA ) ) ss. COUNTY OF MARICOPA ) On ___________________, 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. Notary Public (Affix notary seal here) [SIGNATURES CONTINUE ON FOLLOWING PAGE] 13 “Vendor” A&H PAINTING, INC., a(n) Arizona corporation By: Name: Title: (ACKNOWLEDGMENT) STATE OF ARIZONA ) ) ss. COUNTY OF MARICOPA ) On ____________________, 2020, before me personally appeared ____________________, the __________________ of A&H PAINTING, INC., a(n) Arizona corporation, whose identity was proven to me on the basis of satisfactory evidence to be the ______________________ of the corporation. Notary Public (Affix notary seal here) 4840-8099-4499 v.1 EXHIBIT A TO PROFESSIONAL SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND A&H PAINTING, INC., [Proposal] See following pages. FYI, this is what we have heard back regarding elastomeric paint/cover Colby Wattling Procurement Officer Town of Fountain Hills p: (480) 816-5128 a: 16705 E. Avenue of the Fountains, Fountain Hills, AZ 85268 w: www.fh.az.gov e: cwattling@fh.az.gov Follow us on: From: Brandon Lowe Sent: Wednesday, April 29, 2020 9:16 AM To: Colby Wattling Subject: Re: Town Of Fountain Hills This message originated from an External Source. Do not click links or open attachments unless you have verified the sender and know the content is safe. Hi Colby, There are a few reasons I did not recommend using an elastomeric paint in my specification. 1) Elastomeric coatings are not breathable. Some of your walls do not have a stem wall, meaning the stucco or block goes directly into the dirt. This allows moisture from the ground to "wick up" into the wall. When the moisture from the wall tries to escape, it gets trapped under the elastomeric paint, which causes the paint to blister. 2) In general, the best situation for a successful elastomeric system is for the building to have a sloped roof with an overhang. This allows the rain to fall away from the buildi ng rather than run down the walls. Your buildings have a flat roof with parapet walls. The tops of the walls are flat, which allows the rain to sit on top of the walls rather than run-off. This can lead to blistering. 3) To avoid blistering, the elastomeric coating must be completely pinhole free. It would be virtually impossible to obtain a pinhole free coating on the rough stucco system that is on your buildings. Once again, if moisture gets behind the coating, it is going to blister. The paint I recommended is a breathable coating. I hope you find this information helpful. Please feel free to reach out to me if you have any more questions. Brandon Lowe | Sales Representative Dunn Edwards Corporation 8686 E. Frank Lloyd Wright Blvd. Scottsdale, AZ 85260 602-686-0942 cell | 480-483-3338 fax dunnedwards.com | facebook.com/dunnedwards ________________________________________ From: Colby Wattling <cwattling@fh.az.gov> Sent: Wednesday, April 29, 2020 6:59 AM To: Brandon Lowe <Brandon.Lowe@DunnEdwards.com> Subject: RE: Town Of Fountain Hills Hello Brandon, We were previously recommended an elastomeric paint/coating for the buildings and were wondering if there are specific reasons for not using such materials in your specification? Thanks for your help, Colby Wattling Procurement Officer Town of Fountain Hills p: (480) 816-5128 a: 16705 E. Avenue of the Fountains, Fountain Hills, AZ 85268 w: www.fh.az.gov e: cwattling@fh.az.gov Follow us on: From: Colby Wattling Sent: Monday, March 30, 2020 11:03 AM To: 'Brandon Lowe' <Brandon.Lowe@DunnEdwards.com> Subject: RE: Town Of Fountain Hills Thank you Brandon. Colby Wattling Procurement Officer Town of Fountain Hills p: (480) 816-5128 a: 16705 E. Avenue of the Fountains, Fountain Hills, AZ 85268 w: www.fh.az.gov e: cwattling@fh.az.gov Follow us on: From: Brandon Lowe <Brandon.Lowe@DunnEdwards.com> Sent: Monday, March 30, 2020 9:03 AM To: Colby Wattling <cwattling@fh.az.gov>; db@theecheloncompany.com Subject: Re: Town Of Fountain Hills This message originated from an External Source. Do not click links or open attachments unless you have verified the sender and know the content is safe. Here is the repaint spec you requested. Brandon Lowe | Sales Representative Dunn Edwards Corporation 8686 E. Frank Lloyd Wright Blvd. Scottsdale, AZ 85260 602-686-0942 cell | 480-483-3338 fax dunnedwards.com | facebook.com/dunnedwards ________________________________________ From: Colby Wattling <cwattling@fh.az.gov> Sent: Monday, March 30, 2020 8:29 AM To: Brandon Lowe <Brandon.Lowe@DunnEdwards.com> Subject: Town Of Fountain Hills IRONSCALES couldn't recognize this email as this is the first time you received an email from this sender cwattling@fh.az.gov Hello Brandon, I understand you recently did a site walk with Dennis Brown regarding the community center painting. I will be working on the upcoming bid for the project and was wondering if you have provided him any information at this point and if so could I get that as well? Thank you, Colby Wattling Procurement Officer Town of Fountain Hills p: (480) 816-5128 a: 16705 E. Avenue of the Fountains, Fountain Hills, AZ 85268 w: www.fh.az.gov e: cwattling@fh.az.gov Follow us on: ITEM 8. F. TOWN OF FOUNTAIN HILLS STAFF REPORT    Meeting Date: 08/24/2020 Meeting Type: Town Council Special Meeting Agenda Type: Regular Agenda Submitting Department: Public Works Prepared by: Justin Weldy, Public Works Director Staff Contact Information: Justin Weldy, Public Works Director Request to Town Council Special Meeting (Agenda Language):  CONSIDERATION OF approving Professional Services Agreement 2021-001 with Visus Engineering Construction Inc. to complete the Fountain Hills Blvd. Shoulder Paving Project. Staff Summary (Background) The Fountain Hills Shoulder Widening Project has been a high priority capital improvement project for several years. The primary purpose of the project is to prevent erosion damage to the roadway from stormwater. Since the Town was utilizing Congestion Management Air Quality (CMAQ) federal funding, most of the project costs were to be paid with federal funds, which requires ADOT to oversee and serve as the project engineer and project manager.   Shortly after the project began in the summer of 2019, unforeseen shallow utility lines on the west side of Fountain Hills Boulevard precluded completing the planned project as originally designed. ADOT issued a change order to the contractor for the project change for the west curb and gutter, including the wider and thicker pavement structural section, with the Town's concurrence. The contractor proceeded with the construction concept based on the revised project plans. The attached letter from ADOT Senior Resident Engineer Micah Hannam explains the challenges and difficulties of the project as well as the need to cancel the project due to concerns exceeding the original project scope and budget.   The following options were presented to the Council on May 19, 2020, for moving forward and completing the project:  Request a not to exceed price from Visus Engineering Construction, the contractor which constructed the improvements on the west side of Fountain Hills Blvd. and consider direct select as a procurement method to complete the second half of the project; OR 1. Prepare a sealed bid package and award a contract to construct the shoulder widening improvements. The Town Council selected option 2.  Staff published an Invitation For Bids (IFB) on July 1, & 8, 2020 in the Fountain Hills Times, and on July 2 & 9, 2020 in the Phoenix Business Gazette. The bid was also posted on the Town's website on July 1, 2020.   2. The following five sealed bids were officially opened on August 4, 2020 and include in the base proposals a $50,000 owner's allowance:   Standard Construction:                      $901,801.50 Paveco Inc.:                                          $967,171.70 Gonzales Asphalt                                 $775,940.00 Visus Engineering Construction Inc. $612,000.00 Baniciki Construction.                         $1,050,352.45 Related Ordinance, Policy or Guiding Principle N/A Risk Analysis The Fountain Hills Blvd. Shoulder Widening Project has been a top priority of the Town Council for several years. The paved shoulder and related drainage improvements will significantly improve the safety of the roadway. It is also a key element and part of a comprehensive plan to improve pedestrian, cyclist and motorist safety Town wide. Recommendation(s) by Board(s) or Commission(s) N/A Staff Recommendation(s) Staff recommends approval of Professional Services Agreement 2021-001 with Visus Engineering Construction Inc. An owner's allowance of $50,000 is included in the base proposal from the company.    SUGGESTED MOTION MOVE to approve Professional Services Agreement 2021-001 with Visus Engineering Construction Inc. in the amount of $612,000.00 (includes $50,000.00 for owners’ allowance).  Fiscal Impact Fiscal Impact:$612,000.00 Budget Reference:81 Funding Source:600 If Multiple Funds utilized, list here: Budgeted: if No, attach Budget Adjustment Form: Attachments IFB 2021-001  Bid Tab  PSA 2021-001  Form Review Inbox Reviewed By Date Public Works Director (Originator)Justin Weldy 08/07/2020 10:02 AM Finance Director David Pock 08/10/2020 07:28 AM Public Works Director (Originator)Justin Weldy 08/10/2020 08:42 AM Finance Director David Pock 08/10/2020 11:48 AM Town Attorney Aaron D. Arnson 08/10/2020 02:30 PM Town Manager Grady E. Miller 08/10/2020 02:41 PM Form Started By: Justin Weldy Started On: 08/07/2020 08:36 AM Final Approval Date: 08/10/2020  TOWN OF FOUNTAIN HILLS PUBLIC WORKS DEPARTMENT INVITATION FOR BIDS Fountain Hills Blvd Shoulder Paving Phase II Town of Fountain Hills 16705 East Avenue of the Fountains Fountain Hills, Arizona 85268 SOLICITATION INFORMATION AND SCHEDULE Solicitation Number: 2021-001 Release Date: July 1, 2020 Advertisement Dates: July 1, 2020 & July 8, 2020 - Fountain Hills Times July 2, 2020 & July 9, 2020 -Arizona Business Gazette MANDATORY Prospective Bidder’s Conference: July 22, 2020 10:00 a.m. (local time, Phoenix, Arizona) Fountain Hills Town Hall Council Chambers 16705 East Avenue of the Fountains Fountain Hills, Arizona 85268 Final Date for Inquires July 27, 2020 3:00 p.m. (local time, Phoenix, Arizona) Bid Deadline: August 3, 2020 3:00 p.m. (local time, Phoenix, Arizona) Bid Opening: Target Town Council Award Date: August 3, 2020 3:15 p.m. (local time, Phoenix, Arizona) August 24, 2020 Town Representatives: Justin T. Weldy, Public Works Director 480-816-5133 jweldy@fh.az.gov TOWN OF FOUNTAIN HILLS Public Works DEPARTMENT 2 In accordance with the Town of Fountain Hills Procurement Code, competitive sealed Bids for the services specified herein will be received by the Town of Fountain Hills Procurement Officer at the above-referenced location until the date and time referenced above (the “Bid Deadline”). Bids received by the Bid Deadline shall be publicly opened and the Bid Price read. Bids shall be in the actual possession of the Town of Fountain Hills Procurement Officer on, or prior to, the Bid Deadline date. Late Bids shall not be considered except as provided in the Town Procurement Code. Bids shall be submitted in a sealed envelope with the Solicitation Number and the Bidder’s name and address clearly indicated on the front of the envelope. There is no charge for the Plans and Specifications. Plans and Specifications may be obtained at the Town of Fountain Hills website: https://www.fh.az.gov/Bids.aspx Due to concerns related to the COVID-19 pandemic, the Town of Fountain Hills reserves the right to cancel or modify the MANDATORY Pre-Submittal Conference. *The Town of Fountain Hills reserves the right to amend the solicitation schedule as necessary. TOWN OF FOUNTAIN HILLS PUBLIC WORKS DEPARTMENT 2021-001 i OFFER The undersigned (the “Bidder”) hereby offers this Bid as an offer to contract with the Town under the terms and conditions set forth below and certifies that Bidder has read, understands and agrees to fully comply with, and be contractually bound by, all terms and conditions as set forth in this Invitation For Bids (“IFB”), the Contract formed hereby (as defined below) and any amendments thereto, together with all Exhibits, Specifications, Plans and other documents included as part of this Contract (the “Contract Documents”). Town of Fountain Hills Business License Number: _____________________ Arizona Transaction (Sales) Privilege Tax License Number: _________________________ Federal Employer Identification Number: ___________________________________________ ___________________________________________ Contractor Name ___________________________________________ Address ___________________________________________ City State Zip Code For Clarification of this Bid contact: Name: Telephone: Facsimile: Email: Authorized Signature for Contractor Printed Name Title ACCEPTANCE OF OFFER AND NOTICE OF AWARD (FOR TOWN OF FOUNTAIN HILLS USE ONLY) Effective Date: Contract No. Official File: TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation Grady E. Miller, Town Manager ATTEST: APPROVED AS TO FORM: Elizabeth Burke , Town Clerk Aaron Arnson , Town Attorney TOWN OF FOUNTAIN HILLS PUBLIC WORKS DEPARTMENT 2021-001 1 ARTICLE I - DEFINITIONS For purposes of this Invitation for Bids, the following definitions shall apply: 1.1 “Bid” or “Offer” means a responsive bid or quotation submitted by a Bidder in response to this Invitation for Bids. 1.2 “Bid Deadline” means the date and time set forth on the cover of this IFB for the Procurement Officer to be in actual possession of the sealed Bids. 1.3 “Bid Opening” means the date and time set forth on the cover of this Invitation for Bids for opening of sealed Bids. 1.4 “Bidder” means any person or firm submitting a competitive Bid in response to this IFB. 1.5 “Confidential Information” means that portion of a Bid, proposal, Offer, Specification or protest that contains information that the person submitting the information believes should be withheld, provided (i) such person submits a written statement advising the Town of this fact at the time of the submission and (ii) the information is so identified wherever it appears. 1.6 “Contract” means, collectively, the (i) Offer/Bid, (ii) this IFB, including all exhibits, (iii) the Notice of Award, (iv) the Notice to Proceed or Purchase Order(s), (v) any approved Addendum, Change Order or Amendment, (vi) the Contractor’s Certificates of Insurance and a copy of the Declarations Page(s) of the insurance policies, (vii) the Certificate of Completion and (viii) any Plans, Specifications or other documents attached, appended or incorporated herein by reference. Alternate or optional bid items will become part of the Contract only if they are accepted by the City in writing on the Price Sheet. 1.7 “Contractor” means the individual, partnership, corporation or limited liability company who has submitted a Bid in response to this IFB and who, as a result of the competitive bidding process, is awarded a contract for Materials or Services by the Town. 1.8 “Contract Time” means the time period during which the Contractor must complete all of the Work related to the Project. 1.9 “Day(s)” means calendar day(s) unless otherwise specified. 1.10 “Engineer” means the Town Engineer or authorized designee. 1.11 “Final Completion” shall be defined as set forth in Section 3.16 and shall occur not later than 30 Days from the date of Substantial Completion unless otherwise designated by the Engineer and subject to modification by changes in the Work as provided in Section 3.14 below. 1.12 “Invitation for Bids” or “IFB” means this request by the Town for participation in the competitive bidding process according to all documents, including those attached or incorporated herein by reference, utilized for soliciting Bids for the Materials and/or Services in compliance with the Town’s Procurement Code. 1.13 “Materials” means any personal property, including equipment, materials, replacements and supplies provided by the Contractor in conjunction with the Contract and shall include, in addition to Materials incorporated in the Project, equipment and other material used and/or consumed in the performance of the Work. 1.14 “Multiple Award” means an award of an indefinite quantity contract for one or more similar products, commodities or Services to more than one Bidder. TOWN OF FOUNTAIN HILLS PUBLIC WORKS DEPARTMENT 2021-001 2 1.15 “Price” means the total expenditure for the defined Project, inclusive of all Materials, commodities or Services. 1.16 “Procurement Administrator” means a Town employee, as designated on the cover of this IFB, who has specifically been designated to act as a contact person to the Bidders and/or Contractor relating to their IFB. 1.17 “Procurement Agent” means the Town Manager or authorized designee. 1.18 “Procurement Code” means the Town’s Procurement Code, as amended from time to time. 1.19 “Project” means the purpose and Work described as set forth in Section 2.1, in the “Purpose/Scope of Work” of the IFB. 1.20 “Punch List” means that list of items provided by Town to Contractor at the time of Substantial Completion indicating items to be completed or corrected, including the time for completion or correction by Contractor after Substantial Completion. 1.21 “Services” means the furnishing of labor, time or effort by a Contractor, not involving the delivery of a specific end product other than reports which are merely incidental to the required performance and as further defined in the Contract. This term does not include “professional and technical services” as defined in the Procurement Code. 1.22 “Specification” means any description of the physical characteristics, functional characteristics, or the nature of a commodity, product, supply or Services. The term may include a description of any requirements for inspecting, testing, or preparing a supply or service item for delivery. 1.23 “Subcontractor” means those persons or groups of persons having a direct contract with the Contractor to perform a portion of the Work and those who furnish Materials according to the plans and/or Specifications required by this Contract. 1.24 “Substantial Completion” shall be defined as set forth in Section 3.15 below and shall occur not later than the date set forth in the Schedule, subject to modification by changes in the Work as provided in Section 3.14 below. 1.25 “Town” means the Town of Fountain Hills, an Arizona municipal corporation. 1.26 “Town Representative” means the Town employee who has specifically been designated to act as a contact person to the Town’s Procurement Administrator, and who is responsible for monitoring and overseeing the Contractor’s performance under the Contract and for providing information regarding details pertaining to the Work. 1.27 “Vendor” means any firms, entities or individuals desiring to prepare a responsive Bid in response to this IFB. 1.28 “Work” means all labor, Materials and equipment incorporated or to be incorporated in the Project that are necessary to accomplish the construction required by this Contract. TOWN OF FOUNTAIN HILLS PUBLIC WORKS DEPARTMENT 2021-001 3 ARTICLE II – BID PROCESS; BID AWARD 2.1 Purpose/Scope of Work. The work included in this project consists of improvements at the intersection of Avenue of the Fountains and La Montana Drive. The Town is issuing this IFB is to secure a qualified General Contractor to perform the Work and provide Materials as more particularly described in the Specifications attached hereto as Exhibit A, and incorporated herein by reference. Bidders must submit Bids encompassing the entire Project, inclusive of the related Plans and/or Construction Drawings. Failure to do so may result in a determination that the Bid is non-responsive. 2.2 Amendment of IFB. Except as set forth in Section 3.56 below, no alteration may be made to this IFB or the resultant Contract without the express, written approval of the Town in the form of an official IFB addendum or Contract amendment. Any attempt to alter this IFB/Contract without such approval is a violation of this IFB/Contract and the Town Procurement Code. Any such action is subject to the legal and contractual remedies available to the Town including, but not limited to, Contract cancellation and suspension and/or debarment of the Bidder or Contractor. 2.3 Preparation/Submission of Bid. Bidders are invited to participate in the competitive bidding process for the Project specified in this IFB. Bidders shall review their Bid submissions to ensure the following requirements are met. A. Irregular/Non-responsive Bids. The Town will consider as “irregular” or “non- responsive” and shall reject any Bid not prepared and submitted in accordance with the IFB and Specifications, or any Bid lacking sufficient information to enable the Town to make a reasonable determination of compliance with the Specifications. Unauthorized or unreasonable exceptions, conditions, limitations, or provisions shall be cause for rejection. Bids may be deemed non-responsive at any time during the evaluation process if, in the sole opinion of the Procurement Agent, any of the following are true: 1. Bidder does not meet the minimum required skill, experience or requirements to perform the Work or provide the Materials. 2. Bidder has a past record of failing to fully perform or fulfill contractual obligations. 3. Bidder cannot demonstrate financial stability. 4. Bid submission contains false, inaccurate or misleading statements that, in the opinion of the Procurement Agent, are intended to mislead the Town in its evaluation of the Bid. B. Specification Minimums. Bidders are reminded that the Specifications in this IFB are the minimum levels required and that Bids submitted must be for products that meet or exceed the minimum level of all features specifically listed in this IFB. Bids offering less than the minimums specified will be deemed not responsive. It shall be the Bidder’s responsibility to carefully examine each item listed in the Specifications. C. Required Submittal. Bidders shall provide all of the following documents to be considered a responsive Bid: 1. Complete, fully executed original of this IFB, with the Offer signed in ink by a person authorized to bind the Bidder. 2. Price Sheet. 3. Bid Bond. TOWN OF FOUNTAIN HILLS PUBLIC WORKS DEPARTMENT 2021-001 4 4. Licenses; /DBE & MBE Status. 5. References. 6. Federal Requirements, if applicable. 7. Acknowledgment for each Addendum received, if any. D. Bidder Responsibilities. All Bidders shall (1) examine the entire Bid package, (2) seek clarification of any item or requirement that may not be clear, (3) check all responses for accuracy before submitting a Bid and (4) submit the entire, completed Bid package by the official Bid Deadline. Late Bids shall not be considered. Bids not submitted with an original, signed Offer page by a person authorized to bind the Bidder shall be considered non-responsive. Negligence in preparing a Bid shall not be good cause for withdrawal after the Bid Deadline. E. Sealed Bids. All Bids shall be sealed and clearly marked with the IFB title and number on the lower left hand corner of the mailing envelope. A return address must also appear on the outside of the sealed Bid. F. Address. All bids shall be directed to the following address: Procurement Officer, 16705 East Avenue of the Fountains, Fountain Hills, Arizona 85268, or hand-delivered to the Town Hall Reception desk by the Due Date and Time indicated on the cover page of this IFB. G. Bid Forms. All Bids shall be on the forms provided in this IFB. It is permissible to copy these forms if required. Telegraphic (facsimile), electronic (email) or mailgram Bids will not be considered. H. Modifications. Erasures, interlineations, or other modifications in the Bid shall be initialed in original ink by the authorized person signing the Bid. I. Withdrawal. At any time prior to the specified Bid Opening, a Bidder (or designated representative) may amend or withdraw its Bid. Facsimile, electronic (email) or mailgram Bid amendments or withdrawals will not be considered. No Bid shall be altered, amended or withdrawn after the specified Bid Deadline, unless otherwise permitted pursuant to the Town Procurement Code. 2.4 Inquiries; Interpretation of Plans, Specifications and Drawings. A. Inquiries. Any question related to the IFB, including any part of the Plans, Specifications, Scope of Work or other Contract Documents, shall be directed to the Town Representative and Procurement Administrator whose names appear on the cover page of this IFB. Questions shall be submitted in writing by the date indicated on the cover page of this IFB; the Town will not respond to any inquiries submitted later than the Final Date for Inquiries. The Vendor submitting such inquiry will be responsible for its prompt delivery to the Town. Any correspondence related to the IFB shall refer to the title and number, page and paragraph. However, the Bidder shall not place the IFB number and title on the outside of any envelope containing questions, because such an envelope may be identified as a sealed Bid and may not be opened until the Bid Opening. Any interpretations or corrections of the proposed Contract Documents will be made only by addenda duly approved and issued by the Town. The Town will not be responsible for any other explanations or interpretations of the Contract Documents. B. Addenda. It shall be the Bidder’s responsibility to check for addenda issued to this IFB. Any addendum issued by the Town with respect to this IFB will be available at: Town of Fountain Hills Town Hall, 16705 East Avenue of the Fountains, Fountain Hills, Arizona 85268 TOWN OF FOUNTAIN HILLS PUBLIC WORKS DEPARTMENT 2021-001 5 Town of Fountain Hills website at: https://www.fh.az.gov/Bids.aspx C. Approval of Substitutions. The Materials, products, and equipment described in this IFB establish a standard or required function, dimension, appearance and quality to be met by any proposed substitution. No substitute will be considered unless written Substitution/Equal Request in the form attached hereto as Exhibit B, has been received by the Town Representative at least 10 Days prior to the Bid Deadline. Each such request shall include the name of the Material or equipment for which it is to be substituted and a complete description of the proposed substitute, including any drawings, performance and test data and any other information necessary for evaluation of the substitute. If a substitute is approved, the approval shall be by written addendum to the IFB. Bidder shall not rely upon approvals made in any other manner. D. Use of Equals. When the Specifications for materials, articles, products and equipment include the phrase “or equal,” Bidder may bid upon and use materials, articles, products and equipment that will perform equally the requirements imposed by the general design. The Engineer will have the final approval of all materials, articles, products and equipment proposed to be used as an “equal.” No such “equal” shall be purchased or installed without prior, written approval from the Engineer. No “equal” will be considered unless a written Substitution/Equal Request, in the form attached hereto as Exhibit B, has been received by the Town Representative at least 10 Days prior to the Bid Deadline. The request shall include the name of the material or equipment for which the item is sought to be considered an equal and a complete description of the proposed equal including any drawings, cuts, performance and test data and any other information necessary for evaluation of the equal. All approval of equals shall be issued in the form of written addendum or amendment, as applicable, to this IFB or the Contract. E. Bid Quantities. It is expressly understood and agreed by the parties hereto that the quantities of the various classes of Services and/or Materials to be furnished under this Contract, which have been estimated as stated in the Bidders’ Offer, are only approximate and are to be used solely for the purpose of comparing, on a consistent basis, the Bidders’ Offers presented for the Work under this Contract. The selected Contractor agrees that the Town shall not be held responsible if any of the quantities shall be found to be incorrect and the Contractor will not make any claim for damages or for loss of profits because of a difference between the quantities of the various classes of Services and/or Materials as estimated and the Services and/or Materials actually provided. Contractor is responsible for ensuring that all Materials contained in the Plans for the project are bid on the Price Sheet. Contractor shall bring any potential discrepancy between the Plans and the Price Sheet to the Town’s attention, either at the Prospective Bidders’ Conference or by written inquiry, as set forth in Subsection 2.4(A) above. If any error, omission or misstatement is found to occur, the same shall not (1) invalidate the Contract or the whole or any part of the Scope of Work, (2) excuse Contractor from any of the obligations or liabilities hereunder or (3) entitle Contractor to any damage or compensation except as may be provided in this Contract. 2.5 Prospective Bidders’ Conference. A Prospective Bidders’ Conference may be held. If scheduled, the date and time of the Prospective Bidders’ Conference will be indicated on the cover page of this IFB. The Prospective Bidders’ Conference may be designated as mandatory or non-mandatory on the cover of this IFB. Bids shall not be accepted from Bidders who do not attend a mandatory Prospective Bidders’ Conference. Bidders are strongly encouraged to attend those Prospective Bidder’s Conferences designated as non-mandatory. The purpose of the Prospective Bidders’ Conference will be to clarify the contents of the IFB in order to prevent any misunderstanding of the Town’s requirements. Any doubt as to the requirements of this IFB or any apparent omission or discrepancy should be presented to the Town at the Prospective Bidders’ Conference. The Town will then determine if any action is necessary and may issue a written amendment or addendum to the IFB. Oral statements or instructions will not constitute an amendment or addendum to the IFB. 2.6 New Materials. All Materials to be provided by the Contractor and included in the Bid shall be new, unless otherwise stated in the Specifications. TOWN OF FOUNTAIN HILLS PUBLIC WORKS DEPARTMENT 2021-001 6 2.7 Prices. Work shall be performed at the unit prices as set forth in the Price Sheet attached hereto as Exhibit C and incorporated herein by reference. Bid prices shall be submitted on a per unit basis by line item, when applicable and include all applicable sales tax. In the event of a disparity between the unit price and extended price, the unit price shall prevail. NOTE: All pricing blanks must be filled in. Empty or unfilled spaces in the Bid Price Sheet shall result in a determination that a Bid is non-responsive. 2.8 Allowances. Allowances, if any, shall be clearly set forth on the Price Sheet. Allowances shall cover the cost to the Contractor (less any applicable trade discount) of the Materials including equipment required by the Allowance, delivered at the site, and all applicable taxes, overhead, profit handling and other general conditions costs, unless unit rates are available in the Price Sheet. Unit rates from the Price Sheet shall be used to determine the cost of a change to be paid from an Allowance, when applicable. Any remaining Allowance amount shall be returned to the Town at the end of the Project by deductive change order. 2.9 Payment; Discounts. Any Bid that requires payment in less than 30 Days shall not be considered. Payment discounts of 30 Days or less will not be deducted from the Bid Price in determining the low Bid. The Town shall be entitled to take advantage of any payment discount offered, provided payment is made within the discount period. Payment discounts shall be indicated on Price Sheet. 2.10 Taxes. The Town is exempt from Federal Excise Tax, including the Federal Transportation Tax. Transaction privilege tax, if any, shall be included in the unit price for each line item. It shall not be considered a lump sum payment item. It is the sole responsibility of the Bidder to determine any applicable State tax rates and calculate the tax accordingly. When calculating the tax on the Bid, the Bidder should not include tax on any allowances. Failure to accurately tabulate any applicable taxes may result in a determination that a Bid is non-responsive. The Bidder shall not rely on, and shall independently verify, any tax information provided by the Town. 2.11 Federal Funding. It is the responsibility of the Bidder to verify and comply with federal requirements that may apply to the Work (the “Federal Requirements”). It is also the responsibility of the Bidder to incorporate any necessary amounts in the Bid to accommodate for required federal record-keeping, necessary pay structures or other matters related to the Federal Requirements. Federal Requirements, if any, shall be attached hereto as Exhibit D. In addition to any applicable Federal Requirements, this procurement is subject to a number of state and Town regulations. In general, where these rules conflict, the more stringent law or rule applies. 2.12 Cost of Bid/Proposal Preparation. Bids submitted for consideration should be prepared simply and economically, providing adequate information in a straightforward and concise manner. The Town does not reimburse the cost of developing, presenting or providing any response to this solicitation; the Bidder is responsible for all costs incurred in responding to this IFB. All materials and documents submitted in response to this IFB become the property of the Town and will not be returned. 2.13 Public Record. All Bids shall become the property of the Town. After Contract award, Bids shall become public records and shall be available for public inspection in accordance with the Town’s Procurement Code, except that any portion of a Bid that was designated as confidential pursuant to Section 2.14 below shall remain confidential from and after the time of Bid opening to the extent permitted by Arizona law. 2.14 Confidential Information. If a Vendor/Bidder believes that a Bid, Specification, or protest contains information that should be withheld from the public record, a statement advising the Procurement Agent of this fact shall accompany the submission and the information shall be clearly identified. The information identified by the Vendor or Bidder as confidential shall not be disclosed until the Procurement Agent makes a written determination. The Procurement Agent shall review the statement and information with the Town Attorney and shall determine in writing whether the information shall be withheld. If the Town Attorney determines that it is proper to disclose the information, the Procurement Agent shall inform the Vendor or Bidder in writing of such determination. TOWN OF FOUNTAIN HILLS PUBLIC WORKS DEPARTMENT 2021-001 7 2.15 Vendor Licensing and Registration. Prior to the award of the Contract, the successful Bidder shall be registered with the Arizona Corporation Commission and authorized to do business in Arizona. Bidders shall provide license and certification information with the Bid, attached as Exhibit E and incorporated herein by reference. Upon the Town’s request, corporations, limited liability companies, partnerships or other entities shall provide Certificates of Good Standing from the Arizona Corporation Commission. A Town of Fountain Hills business license is also required. 2.16 Bidder Qualifications. A. Experience and References. Bidder must demonstrate successful completion of at least three similar projects within the past 60 months, one of which must have a dollar value of at least 75% of the total bid for this Project as set forth in the Price Sheet, attached as Exhibit C. Total bid price does not include any Town allowances identified. For the purpose of this Solicitation, “successful completion” means completion of a project within the established schedule and budget and “similar projects” resemble this Project in size, nature and scope. References for these three projects shall be listed on the sheet attached hereto as Exhibit F and incorporated herein by reference. These references will be checked, and it is Bidder’s responsibility to ensure that all information is accurate and current. Bidder authorizes the Town’s representative to verify all information from these references and releases all those concerned from any liability in connection with the information they provide. B. Investigation. The Town’s representative may conduct any investigation deemed necessary to determine the Bidder’s ability to perform the Work in accordance with the Contract Documents. The three lowest Bidders may be requested to submit additional documentation within 72 hours (or as specified) to assist the Town in its evaluation. 2.17 Certification. By submitting a Bid, the Bidder certifies: A. No Collusion. The submission of the Bid did not involve collusion or other anti- competitive practices. B. No Discrimination. It shall not discriminate against any employee or applicant for employment in violation of Federal Executive Order 11246. C. No Gratuity. It has not given, offered to give, nor intends to give at any time hereafter, any economic opportunity, future employment, gift, loan, gratuity, special discount, trip favor or service to a Town employee, officer, agent or elected official in connection with the submitted Bid or a resultant Contract. In the event that the resultant Contract is canceled pursuant to this provision, the Town shall be entitled, in addition to any other rights and remedies, to recover and withhold from the Contractor an amount equal to 150% of the gratuity. D. Financial Stability. It is financially stable, solvent and has adequate cash reserves to meet all financial obligations including any potential costs resulting from an award of the Contract. E. No Signature/False Statement. The signature on the Bid and the Vendor Information Form is genuine. Failure to sign the Bid or the Vendor Information Form, or signing either with a false statement, shall void the submitted Bid and any resulting Contract, and the Bidder may be debarred from further bidding in the Town. 2.18 Bid Bond. All Vendors desiring to prepare a responsive Bid shall submit a non-revocable bid security payable to the Town in the amount of ten percent (10%) of the total Bid Price. This security shall be in the form of a bid bond, certified check or cashier’s check and must be in the possession of the Town Representative by the Bid Deadline. All bid security from Contractor(s) who have been issued a Notice of Award shall be held until the successful execution of all required Contract Documents and bonds. If the Contractor fails to execute the TOWN OF FOUNTAIN HILLS PUBLIC WORKS DEPARTMENT 2021-001 8 required contractual documents and bonds within the time specified, or 10 Days after Notice of Award if no period is specified, the Contractor may be found to be in default and the Contract terminated by the Town. In case of default, the Town reserves all rights inclusive of, but not limited to, the right to purchase material and/or to complete the Work and to recover any actual excess costs associated with such completion from the Contractor. All bid bonds shall be executed in the form attached hereto as Exhibit G, duly executed by the Bidder as Principal and having as Surety thereon a Surety company holding a Certificate of Authority from the Arizona Department of Insurance to transact surety business in the State of Arizona. Individual sureties are unacceptable. All insurers and sureties shall have, at the time of submission of the proposal, an A.M. Best’s Key Rating Guide of “A-” or better as currently listed in the most recent Best Key Guide, published by the A.M. Best Company. As soon as is practicable after the completion of the evaluation, the Town will (A) issue a Notice of Award for those Offers accepted by the Town and (B) return all checks or bonds to those Bidders who have not been issued a Notice of Award. 2.19 Award of Contract. A. Multiple Award. The Town may, at its sole discretion, accept Bidder’s Offer as part of a Multiple Award. B. Evaluation. The evaluation of this Bid will be based on, but not limited to, the following: (1) compliance with Specifications, (2) Price, including alternates selected by the Town, if any, and taxes, but excluding “as-needed” services requested by the Town and (3) Bidder qualifications to perform the Work. C. Waiver, Rejection, Reissuance. Notwithstanding any other provision of this IFB, the Town expressly reserves the right to: (1) waive any immaterial defect or informality, (2) reject any or all Bids or portions thereof and (3) cancel or reissue an IFB. D. Offer. A Bid is a binding offer to contract with the Town based upon the terms, conditions and Specifications contained in this IFB and the Bidder’s responsive Bid, unless any of the terms, conditions, or Specifications are modified by a written addendum or Contract amendment. Bids become binding Contracts when the Acceptance of Offer and Notice of Award is executed in writing by the Town. Bidder Offers shall be valid and irrevocable for 90 Days after the Bid Opening. E. Protests. Any Bidder may protest this IFB, the proposed award of a Contract, or the actual award of a Contract. All protests will be considered in accordance with the process set forth by the Town Manager or qualified designee. ARTICLE III – GENERAL TERMS AND CONDITIONS PART A – GENERAL Reference Standards. 3.1The work embraced herein shall be performed in accordance with the requirements of the following separate documents: Arizona Department of Transportation, Standard Specifications for Road and Bridge Construction, Edition of 2008 (Pub. # 31-066), Arizona Department of Transportation, Roadway Engineering Group, Construction Standard Drawings, listed in the project plans, and available on the Department’s website, Arizona Department of Transportation, Traffic Group, Manual of Approved Signs, available on the Department’s website, Arizona Department of Transportation, Traffic Group, Traffic Control Design Guidelines, Edition of 2010, available on the Department’s website, TOWN OF FOUNTAIN HILLS PUBLIC WORKS DEPARTMENT 2021-001 9 Manual on Uniform Traffic Control Devices for Streets and Highways, 2009 edition and Arizona Supplement to the 2009 edition, dated January, 2012, 3.2 Plans and Specifications to Successful Contractor. The successful Contractor shall print their own Plans and Specifications for this Project from the Town’s website: https://www.fh.az.gov/Bids.aspx 3.3 Contract Time. The Contract Time for this Project shall be 90 Calendar Days from the Notice to Proceed. All Work on the Project shall be completed on or before the expiration of the Contract Time. 3.4 Pre-Construction Conference. Within 10 Days of the issuance of the Notice of Award, the Contractor shall attend a pre-construction conference. The Town will contact the Contractor to schedule a specific date, time and location for the pre-construction conference. The purpose of this conference is to outline specific items and procedures and to address items that require special attention on the part of the Contractor. The Contractor may also present proposed variations in procedures that the Contractor believes may (A) improve the Project, (B) reduce cost or (C) reduce inconvenience to the public. Any necessary coordination and procedures for construction inspection and staking will be addressed during the pre-construction conference. The Contractor will be required to provide the following items at, or prior to, the pre-construction conference, each of which is subject to review and approval by the Engineer: A. Key Personnel; Subcontractors. A list of the names and emergency telephone numbers of all proposed Key Personnel, Subcontractors and suppliers that the Contractor intends to utilize on the Project, in the form attached hereto as Exhibit H and incorporated herein by reference. The term “Key Personnel” means individuals who will be directly assigned to this Project and includes, but is not limited to, the owner, principals, project manager, project superintendent, scheduler, construction engineer and supervisory personnel. At least two of the Bidder’s Key Personnel must have a minimum of three years’ experience in similar projects (defined above) and the scheduler must have experience in employing scheduling techniques appropriate for this Project. Resumes of Key Personnel shall be submitted upon request by the Town’s representative. Proposed Subcontractors shall be qualified and have the requisite professional or technical licenses and be licensed to do business in the State of Arizona. The list shall include such information on the professional background of each of the assigned key individuals as may be requested by the Town Representative. Such key personnel and Subcontractors shall be satisfactory to the Engineer and shall not be changed except with the consent of the Engineer. Additionally, the Engineer shall have the right to request that the Contractor personnel and Subcontractors be removed from the Project if, in the Engineer’s sole discretion, such personnel or Subcontractor(s) are detrimental to the Project delivery process. Upon receipt of such request, the Contractor shall remove such personnel or Subcontractor(s) unless the Contractor can provide the Town with sufficient documentation to prove it is commercially impractical to replace the personnel or Subcontractor(s) with substitute personnel possessing similar qualifications. The Engineer’s approval of substituted personnel or Subcontractor(s) shall not be unreasonably withheld. B. Progress Schedule. A construction progress schedule showing the estimated time for start and completion of the major items of Work. C. Payment Schedule. A payment schedule showing the estimated dollar volume of Work for each calendar month during the life of the Project. D. Site Security. A written proposal outlining the intended plans to secure the Project site for public safety and security. E. Drawings, Materials & Equipment. An itemized list of all required shop drawings, material and equipment submittals and a schedule indicating the dates each of these items will be transmitted to the Town for review. TOWN OF FOUNTAIN HILLS PUBLIC WORKS DEPARTMENT 2021-001 10 3.5 Notice to Proceed. Within 7 Days of the issuance of the Notice of Award the Town may issue a written Notice to Proceed. The Notice to proceed shall stipulate the actual Contract start date, the Contract Time and the dates of Substantial Completion and Final Completion. The time required for the Contractor to obtain permits, licenses and easements shall be included in the Contract Time and shall not be justification for a delay claim by the Contractor. The time required for the Contractor to prepare, transmit and obtain approval of applicable submittals shall be included in the Contract Time and shall not be justification for a delay claim by the Contractor. No Work shall be started until after all required permits, licenses, and easements have been obtained. The Contractor shall notify the Engineer, in writing, at least 72 hours before the following events: A. Commencement. The start of construction. B. Services Shut Down. Shutdown of water, sewer, drainage, irrigation and/or traffic control facilities, including the anticipated length of time for each shut down. 3.6 Laws and Regulations. The Contractor shall keep fully informed of all rules, regulations, ordinances, statutes or laws affecting the Work herein specified, including existing and future (A) Town and County ordinances and regulations, (B) State and Federal laws and (C) Occupational Safety and Health Administration (“OSHA”) standards. 3.7 Rights-of-Way. The Contractor shall obtain a Encroachment permit for the Work. The Contractor will be responsible for any required Maricopa County permits or other agency permits. The Town will provide any necessary easements for Work specified under this Contract, and the Contractor shall not enter or occupy with workers, tools, equipment or materials any private ground outside the property of the Town without the written consent of the owner thereof. The Contractor, at its own expense, is responsible for the acquisition of any additional easements or rights-of-way. 3.8 Inspection, Safety and Compliance. Each Contractor must inform itself fully of the conditions relating to the construction of the Project and the employment of labor thereon. Failure to do so will not relieve the Contractor of its obligation to furnish all material and labor necessary to carry out the provisions of this Contract. Insofar as possible in carrying out its work, the Contractor must employ such methods or means as will not cause any interruption of or interference with the Work of any other contractor. Contractor affirms that it has inspected the jobsite and has thoroughly reviewed the Contract including, without limitation, the Specifications listed on Exhibit A, as the same may be revised by the Town, and is not relying on any opinions or representations of Town. Contractor agrees to perform and complete such Work in strict accordance with the Contract and under the general direction of the Town. Contractor agrees that any exclusions of any Work must be approved in writing by the Town prior to acceptance of this Contract or same shall not be excluded hereunder. Contractor is responsible for all safety precautions and programs and shall provide all protection and necessary supervision to implement said precautions and programs. Contractor shall take all reasonable precautions for the safety of and provide reasonable protection to prevent damage, injury or loss to: (A) Town personnel and members of the public, (B) employees or others on the Project, (C) the Work and materials and (D) other property at the Project or adjacent thereto. Contractor shall designate a responsible person on the Project whose duty shall be prevention of accidents. Contractor shall provide all competent supervision necessary to execute all Work and any Work incidental thereto in a thorough, first-class, workmanlike manner. It is Contractor’s responsibility that all of the Work and any Work incidental thereto conforms to, and is performed in accordance with, all applicable Federal, State, County and Town laws, codes, ordinances, regulations (including National Pollutant Discharge Elimination System and air pollution standards) and orders of public authorities bearing on performance of the Work. Contractor shall conform to the standard design generally accepted for such purposes and payment for all such services and materials shall be considered as included in the other pay items of the Contract. D. Adjacent Property Access. The Contractor shall maintain access to all businesses, schools and residences along the Project alignment at all times. TOWN OF FOUNTAIN HILLS PUBLIC WORKS DEPARTMENT 2021-001 11 3.10 Indemnification. To the fullest extent permitted by law, the Contractor shall indemnify 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 any and all 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”) to the extent that such Claims (or actions in respect thereof) are caused by the negligent acts, recklessness or intentional misconduct of the Contractor, its officers, employees, agents, or any tier of subcontractor in connection with Contractor’s work or services 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. 3.11 Insurance. A. General. 1. Insurer Qualifications. Without limiting any obligations or liabilities of Contractor, Contractor 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 Contract at the Town’s option. 2. No Representation of Coverage Adequacy. By requiring insurance herein, the Town does not represent that coverage and limits will be adequate to protect Contractor. The Town reserves the right to review any and all of the insurance policies and/or endorsements cited in this Contract but has no obligation to do so. Failure to demand such evidence of full compliance with the insurance requirements set forth in this Contract or failure to identify any insurance deficiency shall not relieve Contractor from, nor be construed or deemed a waiver of, its obligation to maintain the required insurance at all times during the performance of this Contract. 3. 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 Contract, the Town, its agents, representatives, officers, directors, officials and employees as Additional Insured as specified under the respective coverage sections of this Contract. 4. 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 Contract are satisfactorily performed, completed and formally accepted by the Town, unless specified otherwise in this Contract. 5. Primary Insurance. Contractor’s insurance shall be primary insurance with respect to performance of this Contract and in the protection of the Town as an Additional Insured. 6. 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. 7. 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 TOWN OF FOUNTAIN HILLS PUBLIC WORKS DEPARTMENT 2021-001 12 of Contractor. Contractor shall arrange to have such subrogation waivers incorporated into each policy via formal written endorsement thereto. 8. 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. Contractor shall be solely responsible for any such deductible or self-insured retention amount. 9. Use of Subcontractors. If any Work under this Contract is subcontracted in any way, Contractor shall execute written agreement with its Subcontractors containing the indemnification provisions set forth in this Section and insurance requirements set forth herein protecting the Town and Contractor. Contractor shall be responsible for executing any agreements with its Subcontractor and obtaining certificates of insurance verifying the insurance requirements. 10. Evidence of Insurance. Prior to commencing any Work or Services under this Contract, Contractor 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 Contract, issued by Contractor’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 Contract 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 Contract. 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 Contract. If any of the policies required by this Contract expire during the life of this Contract, it shall be Contractor’s responsibility to forward renewal certificates and declaration page(s) to the Town 30 Days prior to the expiration date. All certificates of insurance and declarations required by this Contract shall be identified by referencing this Contract. A $25.00 administrative fee shall be assessed for all certificates or declarations received without a reference to this Contract. Additionally, certificates of insurance and declaration page(s) of the insurance policies submitted without referencing this Contract will be subject to rejection and may be returned or discarded. Certificates of insurance and declaration page(s) shall specifically include the following provisions: a. The Town, its agents, representatives, officers, directors, officials and employees are Additional Insureds as follows: (i) Commercial General Liability - Under Insurance Services Office, Inc., (“ISO”) Form CG 20 10 03 97 or equivalent. (ii) Auto Liability - Under ISO Form CA 20 48 or equivalent. (iii) Excess Liability - Follow Form to underlying insurance. b. Contractor’s insurance shall be primary insurance with respect to performance of the Contract. c. 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 Contractor under this Contract. d. 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 TOWN OF FOUNTAIN HILLS PUBLIC WORKS DEPARTMENT 2021-001 13 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. B. Required Insurance Coverage. 1. Commercial General Liability. Contractor 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 claims arising out of the performance of this Contract, 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. 2. Vehicle Liability. Contractor shall maintain Business Automobile Liability insurance with a limit of $1,000,000 each occurrence on Contractor’s owned, hired and non-owned vehicles assigned to or used in the performance of the Contractor’s Work or Services under this Contract. 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 Contract, 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. 3. Professional Liability. If this Contract is the subject of any professional Services or Work, or if the Contractor engages in any professional Services or Work in any way related to performing the Work under this Contract, the Contractor shall maintain Professional Liability insurance covering negligent errors and omissions arising out of the Services performed by the Contractor, or anyone employed by the Contractor, or anyone for whose negligent acts, mistakes, errors and omissions the Contractor is legally liable, with an unimpaired liability insurance limit of $2,000,000 each claim and $2,000,000 annual aggregate. 4. Workers’ Compensation Insurance. Contractor shall maintain Workers’ Compensation insurance to cover obligations imposed by Federal and State statutes having jurisdiction over Contractor’s employees engaged in the performance of Work or Services under this Contract 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. 5. Builder’s Risk Insurance. Unless expressly waived by the Town Manager in a written addendum or amendment to this Contract, the Contractor shall be responsible for purchasing and maintaining insurance to protect the Project from perils of physical loss. The insurance shall provide for the full cost of replacement for the entire Project at the time of any loss. The insurance shall include as named insureds the Town, the Contractor, the Contractor’s Subcontractors and sub-subcontractors and shall insure against loss from the perils of fire and all-risk coverage for physical loss or damage due to theft, vandalism, collapse, malicious mischief, transit, flood, earthquake, testing, resulting loss arising TOWN OF FOUNTAIN HILLS PUBLIC WORKS DEPARTMENT 2021-001 14 from defective design, negligent workmanship or defective material. The Contractor shall increase the coverage limits as necessary to reflect changes in the estimated replacement cost. C. 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. 3.12 Performance Bond. The Contractor shall be required to furnish non-revocable security binding the Contractor to provide faithful performance of this Contract in the amount of one hundred percent (100%) of the total Contract Price payable to the Town. Performance security shall be in the form of a performance bond, certified check, cashier’s check or irrevocable letter of credit. This security must be in the possession of the Engineer within seven Days after execution of this Agreement by the Town. If the Contractor fails to execute and deliver the security instrument as required, the Contractor may be found in default and the Contract terminated by the Town. In case of default the Town reserves all rights. All performance bonds shall be executed in the form attached hereto as Exhibit I, duly executed by the Contractor as Principal and having as Surety thereon a Surety company approved by the Town and holding a Certificate of Authority to transact surety business in the State of Arizona by the Arizona Department of Insurance. Individual sureties are unacceptable. All Insurers and Sureties shall have, at the time of submission of the performance bond, an A.M. Best’s Key Rating Guide of “A-” or better as currently listed in the most recent Best Key Guide, published by the A.M. Best Company. 3.13 Payment Bond. The Contractor shall be required to furnish non-revocable security for the protection of all persons supplying labor and material to the Contractor or any Subcontractor for the performance of any Work related to this Contract. Payment security shall be in the amount of one hundred percent (100%) of the total Contract Price and be payable to the Town. Payment security shall be in the form of a payment bond, certified check, cashier’s check or irrevocable letter of credit. This security must be in the possession of the Engineer within seven Days after execution of this Agreement by the Town. If the Contractor fails to execute and deliver the security instrument as required, the Contractor may be found in default and the Contract terminated by the Town. In case of default the Town reserves all rights. All payment bonds shall be executed in the form attached hereto as Exhibit J, duly executed by the Contractor as Principal and having as Surety thereon a Surety company approved by the Town and holding a Certificate of Authority to transact surety business in the State of Arizona by the Arizona Department of Insurance. Individual sureties are unacceptable. All Insurers and Sureties shall have, at the time of submission of the payment bond, an A.M. Best’s Key Rating Guide of “A-” or better as currently listed in the most recent Best Key Guide, published by the A.M. Best Company. 3.14 Changes in the Work. The Town may, without invalidating this Contract, order changes in the Work consisting of additions, deletions or other revisions to the Contract and the Contract Price and the Contract Time shall be adjusted as provided below. The Contract Price and/or the Contract Time may only be changed by the Town’s written approval authorizing said change, and said changes shall be performed under the applicable conditions of the Contract. The Contract Price shall be adjusted as a result of a change in the Work as follows: A. Additions. When the Town increases the scope of the Work, Contractor will perform the increased work pursuant to Contractor’s unit prices set forth on the Price Sheet. B. Deletions. When the Town decreases the Work resulting in a decrease in Contractor’s quantity of the Work, the Town shall be allowed a decrease in the Contract Price amounting to the quantity of the deleted Work multiplied by the Contractor’s unit prices. C. Estimating. Whenever the Town is considering a change to the Work, Contractor shall promptly, and in any event within five business days, estimate the price of the contemplated additional or deleted Work in good faith and as accurately as is then-feasible. The estimate shall show quantities of labor, material and equipment and shall be pursuant to the rates set forth in the Contractor’s Bid. 3.15 Substantial Completion. When the Contractor considers that the Work is Substantially Complete, the Engineer shall prepare and submit to the Contractor a comprehensive list of Punch List items, which the TOWN OF FOUNTAIN HILLS PUBLIC WORKS DEPARTMENT 2021-001 15 Contractor may edit and supplement. The Contractor shall proceed promptly to complete and correct Punch List items. Failure to include an item on the Punch List does not alter the responsibility of the Contractor to complete all Work in accordance with the Contract Documents. The Town shall determine when the Project and the Contractor’s Work is substantially complete. “Substantial Completion” means construction has been completed in accordance with the Contract Documents to the extent that the Town can use or occupy the entire Project, or the designated portion of the Project, for the use intended without any outstanding, concurrent construction at the site, except as may be required to complete or correct Punch List items. A prerequisite for Substantial Completion, over and above the extent of construction completion required, is receipt by the Town of acceptable documentation that Contractor has successfully tested and demonstrated all systems for their intended use. The date of Substantial Completion shall be confirmed by a Certificate of Substantial Completion signed by the Town and Contractor. The Certificate of Substantial Completion signed by the Town and Contractor shall state the respective responsibilities of the Town and the Contractor for security, maintenance, utilities, damage to the Work and insurance. The Certificate of Substantial Completion shall also include the Punch List as created by the Contractor and modified by the Town and establish the time for completion and correction of all Punch List items. If the Town and the Contractor cannot agree as to the appropriate date of Substantial Completion, such issue shall be submitted for dispute resolution in accordance with the procedures set forth in Article III, Part B below. Notwithstanding such disagreement, the Contractor shall diligently proceed with completion of the Punch List items. 3.16 Final Completion. The Town shall determine when the Project and the Contractor’s Work is finally completed. “Final Completion” means completion of the Project by the Contractor in accordance with the Contract Documents, certified to the Town by the Contractor. Final Completion shall be achieved only upon the Town’s written acceptance of (A) the construction, (B) all testing, (C) demonstration by Contractor that the Work functions as required by the Contract Documents and meets all Contract requirements, (D) resolution of all outstanding system deficiencies and Punch List items, if any, (E) delivery of all as-built documentation, drawings, completed record documents (with revisions made after Substantial Completion), annotated submittals and design document deliverables, (F) submittal, acceptance, and delivery of the one hundred percent (100%) complete O&M manuals, (G) delivery of warranties, inspection certificates, bonds and all other required documents, (H) all pre- requisites for final payment and (I) submittal of Contractor’s request for final payment and acceptance enclosing all required documentation. Upon Final Completion the Engineer shall issue a Certificate of Final Completion to the Contractor on behalf of the Town. Following receipt of payment from the Town, the Contractor shall make all payments due to the Subcontractors. 3.17 Payments to Contractor. Compensation for all Work necessary for the completion of the Project shall be included by the Bidder in the price bid for the items shown in the Bid. Only those items listed in the Bid are pay items. Payment shall be conditioned upon Contractor’s compliance with the payment terms and conditions set forth below. Contractor expressly acknowledges and agrees that (A) the Contract Price is an estimated amount based upon an engineer’s estimate of the quantities of the Materials deemed necessary to perform the Work and (B) the amount of any payment to be made pursuant to this Contract shall be determined by the field-measured quantities of Materials actually installed by Contractor. Material or equipment delivered to the Project by or on behalf of Contractor shall not constitute material or equipment furnished in the performance of the Work until same has been incorporated into the improvements constituting the Project. Payment shall not constitute acceptance by the Town or evidence thereof of any Work performed. A. Progress Payments. 1. On or before the 15th day of each month after construction has commenced, the Contractor shall submit to the Town an application for payment consisting of the cost of the Work performed up to the end of the prior month, including the cost of material stored on the site or at other locations approved by the Town. The application shall be deemed approved and certified for payment seven Days after it is submitted unless before that time the Town prepares and issues a specific written finding setting forth those items in detail that are not approved for payment under the Contract. Prior to TOWN OF FOUNTAIN HILLS PUBLIC WORKS DEPARTMENT 2021-001 16 submission of the next application for payment, the Contractor shall make available at the request of the Town a statement accounting for the disbursement of funds received under the previous application for purposes of audit. The extent of such statement shall be as agreed upon between the Town and Contractor. 2. Within 14 Days after approval of each monthly application for payment, the Town shall pay directly to the Contractor the appropriate amount for which application for payment is made, less amounts (a) previously paid by the Town, (b) sufficient to pay expenses the Town reasonably expects to incur in correcting deficiencies which are set forth in writing and provided to the Contractor and (c) any retainage as set forth in subsection 3.17(B) below. 3. The Town’s progress payment, occupancy or use of the Project, whether in whole or in part, shall not be deemed as acceptance of any Work not conforming to the requirements of this Contract. 4. Upon Substantial Completion of the Work, the Town shall pay the Contractor the unpaid balance of the cost of the Work, less a sum equal to the Contractor’s estimated cost of completing any unfinished items as agreed to between the Town and the Contractor as to extent and time for Final Completion. The Town thereafter shall pay the Contractor monthly the amount retained for unfinished items as each item is completed. B. Retainage. With respect to the Work, the Town shall retain ten percent (10%) of the amount of each estimate until Final Completion and acceptance of all Material, equipment and Work covered by this Contract. 1. Any securities submitted by Contractor in lieu of retainage as may be allowed by law, shall be deposited in an escrow account by the Town. The Town shall be listed as payee or multiple payees with Contractor on all such securities. 2. When the Work is fifty percent (50%) completed, one-half of the amount retained including any securities substituted pursuant to subsection 3.17 (B)(1) shall be paid to the Contractor upon the Contractor’s request, provided the Contractor is making satisfactory progress on the Work and there is no specific cause or claim requiring a greater amount to be retained. After the construction Work is fifty percent (50%) completed, no more than five percent (5%) of the amount of any subsequent progress payments made under this Contract may be retained, provided the Contractor is making satisfactory progress on the Project. If, at any time, the Town determines satisfactory progress is not being made, ten percent (10%) retention shall be reinstated for all progress payments made under this Contract after the determination. C. Payment for On-site and Off-site Stored Materials. Payment shall be made on account of Materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work. Payment may similarly be made for Materials and equipment suitably stored off the site, conditioned upon the Contractor furnishing evidence to the Town that (1) title to the Materials and equipment will pass to the Town upon payment therefore, (2) the Materials and equipment are adequately safeguarded and insured, including during transit from the off-site location to the Project site and (3) such other matters as the Town may reasonably request in order to protect its interests. With the prior, written approval of the Town, Contractor may advance order the bulk delivery of Materials to be incorporated into the Work over the course of this Contract. Upon delivery and receipt of supplier invoice, the Town shall pay for the bulk delivery, either directly to the Contractor or to the vendor or by joint check to Contractor and vendor, and shall receive a full release for the amount paid from vendor and Contractor. Contractor agrees to assume full responsibility for the safekeeping of all such Materials and shall guarantee to the Town that such Materials shall remain safe from theft or damage from any and all causes (unless caused by the sole negligence of the Town). Contractor shall immediately replace, repair or restore said Materials to their original condition so as to not cause any delay in the Work, and Contractor shall indemnify and hold harmless the Town for, from and against any and all loss, cost, liability or expense resulting from any loss or TOWN OF FOUNTAIN HILLS PUBLIC WORKS DEPARTMENT 2021-001 17 damage to any of the Materials described herein from any cause unless due to the Town’s sole negligence. Should the Town have reason to believe Contractor is not properly safeguarding any of the Materials, the Town shall have the right, but not the affirmative duty, to immediately take such steps as it deems necessary to do so, including removing Contractor from the job, replacing any Materials or expending any sums to properly carry out Contractor’s responsibility hereunder, and any amounts so expended shall be billed back to Contractor or deducted from any sums then or thereafter due to Contractor. Contractor shall fully insure all Materials stored on site as required by the Town, and if such insurance is not obtained due to a lack of insurable interest, the Town shall have the right to obtain such insurance and charge the amount thereof back to Contractor or deduct said amount from any funds then or thereafter due to Contractor. D. Title to Construction Work. The Contractor warrants that title to all Work covered by an application for payment shall pass to the Town no later than the time of payment. The Contractor further warrants that upon submittal of an application for payment, all Work for which applications for payment have been previously issued and payments received from the Town shall be free and clear of liens, claims, security interests or encumbrances in favor of the Contractor, Subcontractors, material suppliers, or other persons or entities making a claim by reason of having provided labor, Materials and equipment relating to the Work. E. Final Payment. 1. Final payment, consisting of the unpaid balance of the cost of the Work shall be due and payable at Final Completion and acceptance by the Town. Before issuance of final payment, the Town may request satisfactory evidence that all payrolls, Materials bills and other indebtedness connected with the Work have been paid or otherwise satisfied. 2. Simultaneously with Contractor’s request for final payment, Contractor shall submit the following items to the Town Representative: a. Red-line construction record drawings. b. Warranties. c. Two sets of documentation completely covering the operation and maintenance of the mechanical and electrical installation and all other equipment. The documentation shall include charts, diagrams, performance curves, catalog information, lubrication manuals, and details pertaining to the functioning of various items of equipment. The documentation shall be divided logically into “systems” on the basis of operation, without respect to trades, subcontractors or arbitrary specifications sections. The relationship of the “systems” shall be clearly and concisely detailed. d. Affidavit Regarding Settlement of Claims. e. Other items reasonably required by the Town Representative. 3. In making final payment the Town waives all claims except for: a. Outstanding liens. b. Improper workmanship or defective Materials. c. Work not in conformance with this Contract or Work not completed. d. Terms of any special warranties required by this Contract. TOWN OF FOUNTAIN HILLS PUBLIC WORKS DEPARTMENT 2021-001 18 e. Delivery to Town of all warranties, operation and maintenance manuals, “AS-BUILT” record drawings and other documents as required by this Contract. f. Right to audit Contractor records for a period of three years. g. Claims previously made in writing and which remain unsettled. 4. Acceptance of final payment by the Contractor shall constitute a waiver of affirmative claims by the Contractor, except those previously made in writing and identified as unsettled at the time of final payment. F. Warranty. Contractor or its assignee shall give to the Town a one-year warranty against deficiencies in material and workmanship for all Work on the Project or other such warranty as required by the Town Engineer, which warranty shall begin on the date that the Town accepts the Work as provided in this Section. Any material deficiencies in material or workmanship identified by Town staff during the one-year warranty period shall be brought to the attention of the Contractor or its assignee that provided the warranty, which shall promptly remedy or cause to be remedied such deficiencies to the reasonable satisfaction of the Town Engineer. Continuing material deficiencies in a particular portion of the Work shall be sufficient grounds for the Town to require (1) an extension of the warranty for an additional one-year period and (2) the proper repair of or the removal and reinstallation of, that portion of the Work that is subject to such continuing deficiencies. Regardless of whether the applicable warranty period has expired, the Contractor agrees to repair any damage to the Work caused by Contractor’s construction activities on the Property. Nothing contained herein shall prevent the Town or Contractor from seeking recourse against any other third party for damage to the Work caused by such third party. 3.18 Offset. A. Offset for Damages. In addition to all other remedies at law or equity, the Town may offset from any money due to the Contractor any amounts Contractor owes to the Town for damages resulting from breach or deficiencies in performance or breach of any obligation under this Contract. B. Offset for Delinquent Fees or Taxes. The Town may offset from any money due to the Contractor any amounts Contractor owes to the Town for delinquent fees, transaction privilege taxes and property taxes, including any interest or penalties. PART B - PERFORMANCE OF THE WORK 3.19 Project Videotape. The Contractor shall produce and provide a project videotape to the Engineer as required.. All costs associated with the Project videotape produced in accordance with this Section shall be deemed incidental. 3.21 Work Scheduling. Time is of the essence for this Contract. Contractor shall provide the Engineer with any requested scheduling information and a proposed schedule for performance of the Work within the Contract Time in a form acceptable to the Engineer and approved by the Engineer, in his sole and absolute discretion, providing for commencement and completion of the Work (the “Schedule”). The Schedule shall include the date for Substantial Completion of the Work. The Engineer may revise the Schedule during the course of the Work. Contractor, to induce the Town to enter into this Contract, has and does hereby agree to fully perform and complete the Work for the Contract Price within the Schedule. 3.22 Contractor’s Representative. The Contractor or his authorized representative shall be present at the Work site at all times during working hours. TOWN OF FOUNTAIN HILLS PUBLIC WORKS DEPARTMENT 2021-001 19 3.23 Prosecution of the Work. The Contractor shall prosecute the Work so that the portion of the Work completed at any point in time shall be not less than as required by the Schedule. If the delay is an Inexcusable Delay, as defined below, the Contractor shall prepare a recovery schedule for the Engineer’s review and approval, showing how the Contractor will compensate for the delays and achieve Substantial Completion by the date(s) shown on the Schedule. If the Contractor is unable to demonstrate how it will overcome Inexcusable Delays, the Engineer may order the Contractor to employ such extraordinary measures as are necessary to bring the Work into conformity with the Substantial Completion date(s) set forth therein, the costs of which shall be included as part of the Cost of the Work. If the delay is an Excusable Delay, as defined below, the Engineer shall either (A) authorize an equitable extension in the Schedule to account for such delay, and equitably adjust the contract sum on account of such delay or (B) request that the Contractor prepare a recovery schedule showing how (if possible) the Contractor can achieve Substantial Completion by the applicable date shown on the Schedule, and equitably adjust the Contract Price in accordance with the provisions of this Contract on account of any extraordinary activities required of the Contractor on account of such recovery schedule. 3.24 Extensions of Time. A. Allowable Extensions. An extension in the scheduled date of Substantial Completion will only be granted in the event of Excusable Delays affecting the Schedule for the Work. The Contractor shall be entitled to general condition costs and extra costs related to the Excusable Delay for idle labor, equipment inefficiency and lost productivity of the performance of the Work. The Contractor must submit evidence reasonably satisfactory to the Town substantiating such costs. Such adjustment to the Price and Substantial Completion date shall be issued in a Change Order or Contract amendment, as applicable. B. Excusable Delay. To the extent any of the following events results in an actual delay in the Work, such shall constitute an “Excusable Delay” (to the extent not set forth below, a delay will be considered an “Inexcusable Delay”): 1. Delays resulting from Force Majeure. 2. Differing, unusual or concealed site conditions that could not reasonably have been anticipated by the Contractor in preparing the Schedule, including, without limitation, archaeological finds and unusual soil conditions (including rock or other geological conditions), underground foundations, abandoned utility lines and water conditions. 3. Delays resulting from the existence or discovery of Hazardous Materials on the Site not brought to the Site by the Contractor. 4. Delays resulting from changes in Applicable Laws occurring after the date of execution of this Contract. 5. Delays occurring due to the acts or omissions of the Town and those within the control of the Town. 6. Delays occurring due to the acts or omissions of a utility, so long as Contractor has coordinated with the utility causing the delay and the delay occurs despite reasonable steps taken by Contractor to avoid the delay. 7. Delays resulting from weather conditions that make it unreasonable to perform the Work in accordance with the Schedule; provided, however, that Contractor’s Schedule shall be deemed to include 14 Days for weather delays (the “Expected Delay Days”), regardless of whether such weather delays are specifically set forth in the Schedule. Contractor shall notify the Town within 24 hours in writing of a weather related delay. If Contractor fails to give the required 24-hour notice, no such weather TOWN OF FOUNTAIN HILLS PUBLIC WORKS DEPARTMENT 2021-001 20 delay will be subtracted from the Expected Delay Days. Weather delays shall not be deemed “Excusable” unless all of the Expected Delay Days have been exhausted. 8. Delays resulting from Additional Work (defined below) that cannot be performed concurrently with the Work on the Schedule. C. Required Notice. In order to obtain an extension of time due to an Excusable Delay, the Contractor shall comply with the following requirements. The Contractor shall notify the Engineer in writing of the Excusable Delay as soon as practicable, but in no event more than seven Days after the Contractor becomes aware of the occurrence of the Excusable Delay. Such notice shall describe the Excusable Delay and shall state the approximate number of Days the Contractor expects to be delayed. After the cessation of the Excusable Delay, the Contractor shall notify the Engineer of the number of Days the Contractor believes that its activities were in fact delayed by the Excusable Delay. In the event that the delay arises as a result of a Change Order request by the Town, the request for an extension of time contained in the resulting Change Order proposal shall be deemed sufficient for purposes of this subsection. D. Determination. Within 10 Days after cessation of an event giving rise to either an Excusable Delay or Inexcusable Delay, the parties will use good faith efforts to agree on the extent to which the Work has been delayed and whether the delay is an Excusable Delay or an Inexcusable Delay. In the absence of agreement between the parties as to the then-current status of Excusable Delays and Inexcusable Delays, the Engineer will provide the Contractor with written notice of Engineer’s determination of the respective number of Days of Excusable Delay and/or Inexcusable Delay. The Engineer’s determination may be issued at such time as the Engineer deems reasonable, but not later than 10 Days after receipt by the Engineer of the Contractor’s written request for such determination. The Contractor shall not, however, deem an issuance by the Engineer of such a determination to be a concurrence of the matters set forth in the Contractor’s request. The Contractor may invoke the dispute resolution procedures set forth in Part D below with respect to such determination. E. Concurrent Delay. To the extent the Contractor is entitled to an extension of time due to an Excusable Delay, but the performance of the Work would have been suspended, delayed or interrupted by the fault or neglect of the Contractor or by an Inexcusable Delay, the Contractor shall not be entitled to any additional costs for the period of such concurrency. 3.25 Liquidated Damages. For each calendar day or working day, as specified, that the contractor shall fail to achieve substantial completion after the contract time or calendar date specified for the completion of the work provided for in the contract, the sum shown in the schedule of liquidated damages specified below will be deducted from any monies due the contractor, not as a penalty, but as liquidated damages; provided, however, that due account will be taken of any adjustment of the contract time for the completion of the work allowed under the provisions of Subsection 108.08. A. Prior to Termination. If the Contract is not terminated, the Contractor shall continue performance and be liable to the Town for the liquidated damages until the Work is complete. B. After Termination. In the event the Town exercises its right of termination, the Contractor shall be liable to the Town for any excess costs and, in addition, for liquidated damages until such time as the Town may reasonably obtain delivery or performance of similar Services. 3.26 Suspension by the Town for Convenience. A. Town Determination. The Town may order the Contractor in writing to suspend, delay or interrupt all or any part of the Work without cause for such period of time as the Town may determine to be appropriate for its convenience. TOWN OF FOUNTAIN HILLS PUBLIC WORKS DEPARTMENT 2021-001 21 B. Contract Adjustments. Adjustments caused by suspension, delay or interruption shall be made for increases in the applicable contract sum and/or the date(s) of Substantial Completion. No adjustment shall be made if the Contractor is or otherwise would have been responsible for the suspension, delay or interruption of the Work, or if another provision of this Contract is applied to render an equitable adjustment. 3.27 Termination by the Town for Convenience. The Town may, upon 30 Days’ written notice to the Contractor, terminate this Contract, in whole or in part, for the convenience of the Town without prejudice to any right or remedy otherwise available to the Town. Upon receipt of such notice, the Contractor shall immediately discontinue all Services affected unless such notice directs otherwise. In the event of a termination for convenience of the Town, the Contractor’s sole and exclusive right and remedy shall be payment for all Work performed through the date of termination. The Contractor shall not be entitled to be paid any amount as profit for unperformed Services or consideration for the Town’s termination by convenience. 3.28 Termination by the Town for Cause. A. Default; Cure. If the Contractor refuses or fails to supply sufficient properly skilled staff or proper Materials, or disregards laws, ordinances, rules, regulations, or orders of any public authority jurisdiction, or otherwise substantially violates or materially breaches any term or provision of this Contract, and such nonperformance or violation continues without cure for 15 Days after the Contractor receives written notice of such nonperformance or violation from the Town, then the Town may, without prejudice to any right or remedy otherwise available to the Town, terminate this Contract. B. Substitute Performance. Upon termination of this Contract by the Town, the Town shall be entitled to furnish or have furnished the Services to be performed hereunder by the Contractor by whatever method the Town may deem expedient. Also, in such case, the Contractor shall not be entitled to receive any further payment until completion of the Work, and the total compensation to the Contractor under this Contract shall be the amount that is equitable under the circumstances. If the Town and the Contractor are unable to agree on the amount to be paid under the foregoing sentence, the Town shall fix an amount, if any, that it deems appropriate in consideration of all of the circumstances surrounding such termination, and shall make payment accordingly. The Contractor may dispute the Town’s assessment of the termination amount pursuant to the dispute resolution process set forth in in Part D of this Contract. C. Contractor Insolvency. Upon the appointment of a receiver for the Contractor, or if the Contractor makes a general assignment for the benefit of creditors, the Town may terminate this Contract, without prejudice to any right or remedy otherwise available to the Town, upon giving three business days’ written notice to the Contractor. If an order for relief is entered under the bankruptcy code with respect to the Contractor, the Town may terminate this Contract by giving three business days’ written notice to the Contractor unless the Contractor or the trustee completes all of the following: 1. Promptly cures all breaches within such three-day period. 2. Provides adequate assurances of future performance. 3. Compensates the Town for actual pecuniary loss resulting from such breaches. 4. Assumes the obligations of the Contractor within the established time limits. 3.29 Contract Subject to Appropriation. The Town is obligated only to pay its obligations set forth in this Agreement as may lawfully be made from funds appropriated and budgeted for that purpose during the Town’s then current fiscal year. The Town’s obligations under this Agreement are current expenses subject to the “budget law” and the unfettered legislative discretion of the Town concerning budgeted purposes and appropriation of funds. Should the Town elect not to appropriate and budget funds to pay its Agreement obligations, this Agreement shall be deemed terminated at the end of the then-current fiscal year term for which TOWN OF FOUNTAIN HILLS PUBLIC WORKS DEPARTMENT 2021-001 22 such funds were appropriated and budgeted for such purpose and the Town shall be relieved of any subsequent obligation under this Agreement. The parties agree that the Town has no obligation or duty of good faith to budget or appropriate the payment of the Town’s obligations set forth in this Agreement in any budget in any fiscal year other than the fiscal year in which this Agreement is executed and delivered. The Town shall be the sole judge and authority in determining the availability of funds for its obligations under this Agreement. The Town shall keep Contractor informed as to the availability of funds for this Agreement. The obligation of the Town to make any payment pursuant to this Agreement is not a general obligation or indebtedness of the Town. Contractor hereby waives any and all rights to bring any claim against the Town from or relating in any way to the Town's termination of this Agreement pursuant to this section. 3.30 Additional Work, Materials and/or Overtime. Contractor expressly agrees that if overtime or additional workers or materials are necessary to meet the Schedule, that such overtime will be performed or additional workers or materials will be procured by the Contractor, and the additional expense thereof shall be borne by Contractor unless the delay requiring overtime was directly caused by the Town, in which event Contractor shall be entitled to compensation for such overtime Work. If the Town requests Contractor to perform additional Work in connection with the Project (“Additional Work”), Contractor shall charge the Town a negotiated fixed amount for the Additional Work. In the event a fixed amount cannot be negotiated, Contractor shall invoice the Town on a time and materials basis for the Additional Work at the unit prices set forth in the price sheet. 3.31 No Damage for Delay or Additional Work by the Town. Contractor shall adjust its operations to conform to any progress schedule changes and hereby waives and releases the Town from any liability for damages or expenses that may be caused to or sustained by Contractor by reason of such changes or by reason of delays in the Work, whether caused in whole or in part by conduct on the part of the Town, including without limitation, any breach of this Contract or delays by other contractors or Subcontractors. Contractor’s exclusive remedy in event of delay or Additional Work by the Town shall be an extension of time hereunder to complete the Work. 3.32 Risk of Loss. Contractor shall assume the risk of loss occasioned by fire, theft or other damage to Materials, machinery, apparatus, tools and equipment relating to the Work prior to actual installation in final place on the Project and acceptance by the Town. Contractor shall be responsible for damage to the Materials, machinery, apparatus, tools, equipment and property of the Town and other contractors resulting from the acts or omissions of its Subcontractors, employees, agents, representatives Subcontractors, and for payment of the full costs of repair or replacement of any said damage. 3.33 Protection of Finished or Partially Finished Work. The Contractor shall properly guard and protect all finished or partially finished Work and shall be responsible for the same until the entire Contract is completed and accepted by the Engineer. The Contractor shall turn over the entire Work in full accordance with this Contract before final settlement shall be made. 3.34 Character and Status of Workers. Only skilled foremen and workers shall be employed on portions of the Work requiring special qualifications. When required by the Engineer, the Contractor shall discharge any person who is, in the opinion of the Engineer, disorderly, dangerous, insubordinate, incompetent or otherwise objectionable. The Contractor shall indemnify and hold harmless the Town from and against damages or claims for compensation that may occur in the enforcement of this Section. The Contractor shall be responsible for ensuring the legal working status of its employees and its Subcontractor’s employees. The Contractor agrees that once assigned to Work under this Contract, key personnel shall not be removed or replaced without written notice to the Town. If key personnel are not available for Work under this Contract for a continuous period exceeding 30 Days, or are expected to devote substantially less effort to the Work than initially anticipated, the Contractor shall immediately notify the Town and shall, subject to the concurrence of the Town, replace such personnel with personnel of substantially equal ability and qualifications. TOWN OF FOUNTAIN HILLS PUBLIC WORKS DEPARTMENT 2021-001 23 3.35 Work Methods. The methods, equipment and appliances used on the Work shall be such as will produce a satisfactory quality of Work, and shall be adequate to complete the Contract within the Contract Time. Except as is otherwise specified in this Contract, the Contractor’s procedure and methods of construction may, in general, be of its own choosing, provided such methods (A) follow best general practice and (B) are calculated to secure results which will satisfy the requirements of this Contract. The Work covered by this Contract shall be carefully laid out in advance and performed in a manner to minimize interference with normal operation and utilization of the Town’s right-of-way. The Contractor shall exercise caution during the course of this Work to avoid damage to all known existing or possible unknown existing underground utilities. It shall conduct its operations in such a manner as to avoid injury to its personnel and to avoid damage to all utilities. Any damage done will be repaired without delay and at the expense of the Contractor. 3.36 Safety Fencing Requirement for Trenches and Excavations. The Contractor shall provide safety construction fencing around all open trenches and excavations during all non-working hours. In addition, the Contractor shall provide safety fencing around the Project site during working hours in order to ensure public safety. The Contractor shall provide for the safety and welfare of the general public by adequately fencing all excavations and trenches that are permitted by the Engineer to remain open when construction is not in progress. Fencing shall be securely anchored to approved steel posts located not less than six feet on center, having a minimum height of six feet, and shall consist of wire mesh fabric of sufficient weight and rigidity to adequately span a maximum supporting post separation of six feet. The fencing, when installed about the periphery of excavations and trenches, shall form an effective barrier against intrusion by the general public into areas of construction. The Contractor, at all times when construction is not in progress, shall be responsible for maintaining the fencing in good repair, and upon notification by the Engineer, shall take immediate action to rectify any deficiency. Prior to the start of any excavation or trenching required for the execution of the proposed Work, the Contractor shall submit to the Engineer for approval, detailed plans showing types of materials and methods of fabrication for the protective fencing. There will be no separate measurement or payment for furnishing, installing, or maintaining protective fencing. The cost shall be considered incidental to the cost of any other structures for which trenching is necessary. 3.37 Utilities. A. Utilities Shown on the Plans. 1. Regardless of what utilities are shown on the plans, it shall be Contractor's responsibility to verify these locations and any additional lines which may exist through consulting with the Town, utility companies and "Blue Stake." 2. Existing utilities are indicated on Project plans in accordance with the best information available. Contractor shall notify all owners of utilities when its Work is in progress and shall make such arrangements as are necessary to make any emergency repair to any utility, in a manner satisfactory to the Town of a damaged utility line, including individual or house service utility lines. 3. No extra compensation will be made for the repair of any individual or house service utility or utility lines damaged by Contractor's labor forces or equipment, nor for any damage incurred through neglect or failure to provide protective barriers, lights and other devices or means required to protect such existing utilities. TOWN OF FOUNTAIN HILLS PUBLIC WORKS DEPARTMENT 2021-001 24 4. Contractor shall expose all sanitary and storm sewers, water, gas, electric, telephone utility lines, and other underground structures that might interfere with the Work, in order to permit survey location prior to construction. 5. Contractor shall assume full responsibility for damages to any underground facility/utility properly shown on the Plans or properly located by the Utility owner, as a result of failing to obtain information as to its location, failing to excavate in a careful and prudent manner or failing to take measures for protection of the facilities/utilities. The Contractor is liable to the owner of the underground facility/utility for the total cost of the repair. B. Utilities Not Shown on the Plans. 1. If utility lines are encountered that are not shown on the plans, and not located, or incorrectly located by the utility owner, other than individual or house service utility lines, and these lines are damaged or work is required to clear same ARIZ. REV. STAT. § 40-360.21 et seq. shall apply. 2. The work necessary for the raising, lowering, or relocating of any such utility shall be at the utility owner’s expense. The necessary Work may be done by the utility owner or by Contractor, or as a collaborative effort, at the option of the utility owner. All Work shall be in accordance with the standards of the Town and the utility owner. 3. In most cases, individual or house service utility lines are not shown on the Plans. It shall be Contractor’s responsibility to locate and protect these individual or house services. If, due to Contractor’s operations, any of these lines are damaged, it shall repair or replace these lines in a manner satisfactory to the owner of the utility at no extra cost to the Town. In addition, the cost of location, protection, and working around these individual or house service utility lines shall be included in Contractor’s bid for the Work under this Contract. 3.38 Outdoor Construction Time Restrictions. Unless otherwise permitted by the Engineer, construction will be restricted as listed in the following table: May 15 – September 15 September 16 – May 14 5:30 a.m. to 6:30 p.m. 6:00 a.m. to 6:30 p.m. Construction Work shall not begin Work prior to 7:00 a.m. and shall stop by 5:00 p.m. on Saturdays. There shall be no Construction Work on Sundays and all Town, State and Federal holidays. 3.39 Stockpile of Materials. A. Engineer Approval. The Contractor may, if approved by the Engineer, place or stockpile Materials in the public right-of-way provided such Materials do not prevent access to adjacent properties or prevent compliance with traffic regulations. An encroachment permit shall be required. Any applicable cost shall be paid by the Contractor and shall be presumed to be part of the Contractor’s bid. B. No Traffic Interference. Traffic shall not be required to travel over stockpiled Materials and proper dust control shall be maintained. 3.40 Excess Materials. When excavations are made, resultant loose earth shall be (A) utilized for filling by compacting in place or (B) disposed of off-site. Excess or unsuitable material, broken asphaltic concrete and broken portland cement concrete excavated from the right-of-way shall be removed from the Project Site and disposed of by the Contractor. Waste material shall not be placed on private property without express permission of the property owner. The Contractor shall, at all times, keep the premises free from accumulation of waste TOWN OF FOUNTAIN HILLS PUBLIC WORKS DEPARTMENT 2021-001 25 materials or rubbish caused by its operations. At the completion of the Work, Contractor shall remove all equipment, tools and surplus materials, and shall completely clean the premises, removing and disposing of all debris and rubbish and cleaning all stains, spots, marks, dirt, smears or other blemishes. When the Work premises are turned over to the Town, they shall be thoroughly clean and ready for immediate use. Clean-up shall include removal of all excess pointing mortar materials within pipes and removal of oversized rocks and boulders left after finish grading. The Contractor shall provide for the legal disposal of all waste products and debris and shall make necessary arrangements for such disposal. 3.41 Storm Water. Contractor shall obtain all local, county, state and federal storm water permits. 3.42 Temporary Sanitary Facilities. The Contractor shall provide ample toilet facilities with proper enclosures for the use of workers employed on the Work site. Toilet facilities shall be installed and maintained in conformity with all applicable State and local laws, codes, regulations and ordinances and shall be properly lit and ventilated, and kept clean at all times. Adequate and satisfactory drinking water shall be provided at all times and under no circumstances and under no conditions will the use of common cups be permitted. The Contractor must supply sanitary drinking cups for the benefit of all employees. 3.43 Electric Power, Water and Telephone. Unless otherwise specified, the Contractor shall make its own arrangements for electric power, water and telephone as needed. Subject to the convenience of the utility, it may be permitted to connect to existing facilities where available, but Contractor shall meter and bear the cost of such power or water, and installation and disconnect of such power, water and telephone services. 3.44 Energized Aerial Electrical Power Lines. Utility companies may maintain energized aerial electrical power lines in the immediate vicinity of this Project. Contractor shall not presume any such lines to be insulated. Construction personnel working in proximity to these lines may be exposed to an extreme hazard from electrical shock. Contractor shall ensure that its employees and all other construction personnel working on this Project are warned of the danger and instructed to take adequate protective measures, including maintaining a minimum ten feet of clearance between the lines and all construction equipment and personnel. (see: OSHA Std. 1926.550 (a) 15, as amended). As an additional safety precaution, Contractor shall call the affected utility companies to arrange, if possible, to have these lines de-energized or relocated when the Work reaches their immediate vicinity. The cost of such temporary arrangements shall be borne by the Contractor. Contractor shall account for the time necessary to cause such utility disconnection in the preparation of its Bid. Electrical utility companies may maintain energized underground electrical power lines in the immediate vicinity of this Project. These power lines represent an extreme hazard of electrical shock to any construction personnel or equipment coming in contact with them. Arizona law requires all parties planning excavations in public rights-of-way to contact all utility firms for locations of their underground facilities. Contractor shall ensure that its employees and all other personnel working near any underground power lines must be warned to take adequate protective measure. (see: OSHA Std. 1926-651 (A), as amended). 3.45 Site Clean Up. Contractor shall at all times, but not less than daily unless otherwise agreed by Town Representative, keep the premises on which the Work is being performed clean and free from accumulation of any waste materials, trash, debris and excess dirt, and at all times shall remove Contractor’s implements, machinery, tools, apparatus and equipment from the jobsite when not needed on the jobsite. Should the Town Representative find it necessary in his/her opinion to employ help to clean up, remove or store any of the foregoing due to failure of Contractor to do so, the expense thereof shall be charged to Contractor. Verbal notice from the Town Representative on clean-up or removal is considered adequate notice hereunder, and failure to conform with his/her request within 24 hours thereof will be construed as a breach of this Contract by the Contractor and such charges will be made against Contractor’s account as are necessary to accomplish the clean-up or removal. The cost of cleanup, removal or storage by the Town, if not deducted by the Town from monies due Contractor, shall be paid by Contractor within five business days of written demand by the Town. TOWN OF FOUNTAIN HILLS PUBLIC WORKS DEPARTMENT 2021-001 26 3.46 Use of the Site. Contractor shall at all times comply fully with all laws, orders, citations, rules, regulations, standards and statutes with respect to occupational health and safety, the handling and storage of hazardous materials, accident prevention and safety equipment and practices, including any accident prevention and safety program of the Town; provided, however, that the Town shall not be required to impose any safety requirements or administer any such programs and the review or requirement of any safety plan by the Town shall not be deemed to release Contractor or in any way diminish its liability, by way of indemnity or otherwise, as assumed by it under this Contract. Contractor shall conduct inspections regularly to determine that safe working conditions and equipment exist and accepts sole responsibility for providing a safe place to Work for its employees and employees of its Subcontractors, laborers, suppliers of material and equipment and any other person visiting the Site, for adequacy of and required use of all safety equipment and for compliance herewith. When so ordered, Contractor shall stop any part of the Work that the Town deems unsafe until corrective measures satisfactory to the Town have been taken. Should Contractor neglect to adopt such corrective measures, the Town may do so and deduct the cost from payments due Contractor. Contractor shall timely submit copies of all accident or injury reports to the Town. 3.47 Public Information and Notification. The Contractor shall submit a public information and notification plan for this Project (the “Notification Plan”) to the Town Representative at the first pre-construction meeting held prior to start of construction. The Notification Plan shall include, at a minimum, the items set forth in this Section 3.53; provided, however, that the Engineer may waive any portion of the requirements of this Section upon a written determination that the Project scope does not warrant such notification. Contractor shall provide Project information to affected residents and homeowners’ associations prior to and throughout the Project’s duration. The Contractor shall use the Notification Plan to inform the local citizens, businesses and Town officials, not less than five business days in advance, of (A) necessary operations that create high noise levels, (B) street closures, (C) detour locations, (D) haul routes and material delivery routes and (E) disruption of bus routes, mail routes and other delivery/pick-up routes. A. Neighborhood Notification. Prior to the start of any Work on the Project, the Contractor shall distribute a preliminary “Dear Neighbor” letter (8-1/2” x 11”), as submitted to and subject to the approval of the Engineer, to all businesses, property owners and residents within 600 feet of any portion of this Project. This “Dear Neighbor” letter shall include, at a minimum, the following information: 1. Contractor’s name, business telephone number and the 24-hour “Hot Line” telephone number for this Project. 2. Name of Contractor’s Project Manager. 3. Name of Contractor’s Project Superintendent. 4. Brief description of the Project. 5. Construction schedule, including anticipated Work hours. 6. Anticipated lane restrictions, including the expected duration thereof. 7. Name of Town’s Project Manager. 8. Name of the Engineer. The Town Manager or authorized designee shall provide the Contractor with a distribution list for this “Dear Neighbor” letter. Contractor shall (1) ensure that the letter is distributed to all persons and businesses indicated on the list provided by the Town Manager or authorized designee and (2) provide the Town Manager or authorized designee with a copy of the letter sent and sufficient proof of mailing. Subsequent to delivery of the “Dear Neighbor” letter, the Contractor shall distribute bi-monthly construction progress updates, including construction schedule and any additional information the Engineer deems important as a result of construction activities, to all persons and businesses included on the aforementioned distribution list. At the request of the Town Manager or TOWN OF FOUNTAIN HILLS PUBLIC WORKS DEPARTMENT 2021-001 27 authorized designee, Contractor may be required to distribute additional public notifications. At the end of construction a final “Dear Neighbor” letter shall be distributed to the persons and businesses on the aforementioned distribution list highlighting the Contractor’s and the Town’s appreciation for their patience during construction of the Project. B. 24-Hour Project Hotline. The Contractor shall be required to furnish a private 24-hour telephone line to be used solely for receiving incoming calls from local citizens or businesses with questions or complaints concerning Project construction operations or procedures (the “Hotline”). The Contractor shall include this Hotline telephone number on all public information distributed throughout the duration of the Project. Contractor shall ensure that Contractor personnel man the Hotline during all hours that there is any Work being performed on this Project; the Hotline shall be answered by a live answering service during all other hours. The Contractor shall maintain a log of incoming calls, responses and action taken that shall be submitted to the Engineer weekly and upon request. C. Public Meetings. The Contractor shall attend such public meetings as deemed necessary by the Town Manager or authorized designee. D. Press Releases. The Contractor shall, at the request of the Engineer, prepare press releases regarding the Project. E. Payment for Public Notification. The Town will pay, based on time and materials invoices, an amount not to exceed the amount designated in the Price Sheet and entitled COMMUNITY RELATIONS, for Work performed in accordance with the Notification Plan. Work that is eligible for reimbursement includes: the “Dear Neighbor” le tters; bi-monthly progress reports; meetings with impacted businesses, residents, schools, churches or other groups; scheduling newsletter when necessary (at least monthly); temporary signs for local access; and maintaining the Hotline. No payment will be made under this item for any Day during which there are substantial deficiencies in compliance, as determined by the Engineer. The Contractor shall submit a final report/evaluation of its Notification Plan process performed for this Project. The report shall be submitted before the Contractor receives final payment. PART C - MISCELLANEOUS 3.48 Applicable Law; Venue. This Contract shall be governed by the laws of the State of Arizona and suit pertaining to this Contract may be brought only in courts in Maricopa County, Arizona. 3.49 Conflict of Interest. This Contract is subject to the provisions of ARIZ. REV. STAT. § 38-511. The Town may cancel this Contract 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 Contract on behalf of the Town or any of its departments or agencies is, at any time while the Contract or any extension of the Contract is in effect, an employee of any other party to the Contract in any capacity or a consultant to any other party of the Contract with respect to the subject matter of the Contract. 3.50 Contract Amendments. This Contract may be modified only by a written amendment signed by persons duly authorized to enter into contracts on behalf of the Town and the Contractor; provided, however, that Change Orders may be issued and approved administratively by the Town when such changes do not alter the Contract Price. 3.51 Provisions Required by Law. Each and every provision of law and any clause required by law to be in the Contract 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, the Contract will promptly be physically amended to make such insertion or correction. TOWN OF FOUNTAIN HILLS PUBLIC WORKS DEPARTMENT 2021-001 28 3.52 Severability. The provisions of this Contract 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 the Contract which may remain in effect without the invalid provision or application. 3.53 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 Contractor 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. Contractor, 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 Contractor, its employees or subcontractors. The Contractor, and not the Town, shall determine the time of its performance of the services provided under this Agreement so long as Contractor meets the requirements of its agreed scope of work and the specifications, plans/construction drawings as set forth in Section 2.1 above and Exhibit A. Contractor is neither prohibited from entering into other contracts nor prohibited from practicing its profession elsewhere. Town and Contractor do not intend to nor will they combine business operations under this Agreement. 3.54 Entire Agreement; Interpretation-Parol Evidence. This Contract 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 Contract are hereby revoked and superseded by this Contract. 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 Contract. This Contract 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 the Contract. 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 Contract. 3.55 Assignment; Delegation. No right or interest in this Contract shall be assigned or delegated by Contractor without prior, written permission of the Town, signed by the Town Manager. Any attempted assignment or delegation by Contractor in violation of this provision shall be a breach of this Contract by Contractor. 3.56 Subcontracts. No subcontract shall be entered into by the Contractor with any other party to furnish any of the Materials, Services or construction specified herein without the prior, written approval of the Town. The Contractor is responsible for performance under this Contract whether or not Subcontractors are used. 3.57 Rights and Remedies. No provision in this Contract 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 Contract. The failure of the Town to insist upon the strict performance of any term or condition of this Contract or to exercise or delay the exercise of any right or remedy provided in this Contract, or by law, or the Town’s acceptance of and payment for Materials or Services, shall not release the Contractor from any responsibilities or obligations imposed by this Contract or by law, and shall not be deemed a waiver of any right of the Town to insist upon the strict performance of this Contract. 3.58 Attorneys’ Fees. In the event either party brings any action for any relief, declaratory or otherwise, arising out of this Contract 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. 3.59 Notices and Requests. Any notice or other communication required or permitted to be given under this Contract 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 TOWN OF FOUNTAIN HILLS PUBLIC WORKS DEPARTMENT 2021-001 29 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 E Falcon Drive, Suite 111 Mesa, Arizona 85215 Attn: Aaron D. Arnson, Town Attorney If to Contractor: _________________________________ _________________________________ _________________________________ Attn: ____________________________ 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 Section. 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. 3.60 Overcharges by Antitrust Violations. The Town maintains that, in practice, overcharges resulting from antitrust violations are borne by the purchaser. Therefore, to the extent permitted by law, the Contractor hereby assigns to the Town any and all claims for such overcharges as to the goods and services used to fulfill the Contract. 3.61 Force Majeure. Except for payment for sums due, neither party shall be liable to the other nor deemed in default under this Contract if and to the extent that such party’s performance of this Contract is prevented by reason of force majeure. The term “force majeure” means an occurrence that is beyond the control of the party affected and occurs without its fault or negligence. Without limiting the foregoing, force majeure includes acts of God; acts of the public enemy; war; riots; strikes; mobilization; labor disputes; civil disorders; fire; floods; lockouts, injunctions-intervention-acts, or failures or refusals to act by government authority; and other similar occurrences beyond the control of the party declaring force majeure which such party is unable to prevent by exercising reasonable diligence. The force majeure shall be deemed to commence when the party declaring force majeure notifies the other party, in accordance with Section 3.65, of the existence of the force majeure and shall be deemed to continue as long as the results or effects of the force majeure prevent the party from resuming performance in accordance with this Contract. Force majeure shall not include the following occurrences: A. Late Delivery. Late delivery of equipment or materials caused by congestion at a manufacturer’s plant or elsewhere, an oversold condition of the market, inefficiencies or similar occurrences. B. Late Performance. Late performance by a Subcontractor unless the delay arise s out of a force majeure occurrence in accordance with this Section 3.67. Any delay or failure in performance by either party hereto shall not constitute default hereunder or give rise to any claim for damages or loss of anticipated profits if, and to the extent that such delay or failure is caused by force majeure. If either party is delayed at any time in the progress of the Work by force majeure, then the delayed party shall notify the other party in accordance with Section 3.65 and shall make a specific reference to this Section, thereby invoking its provisions. The delayed party TOWN OF FOUNTAIN HILLS PUBLIC WORKS DEPARTMENT 2021-001 30 shall cause such delay to cease as soon as practicable and shall notify the other party in writing. The time of Substantial Completion or Final Completion shall be extended by written Contract amendment for a period of time equal to the time that the results or effects of such delay prevent the delayed party from performing in accordance with this Contract. 3.62 Confidentiality of Records. The Contractor 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 Contract shall not be used or disclosed by it, its agents, officers, or employees, except as required to perform Contractor’s duties under this Contract. Persons requesting such information should be referred to the Town. Contractor also agrees that any information pertaining to individual persons shall not be divulged other than to employees or officers of Contractor as needed for the performance of duties under this Contract. 3.63 Records and Audit Rights. To ensure that the Contractor and its Subcontractors are complying with the warranty under Section 3.70 below, Contractor’s and its Subcontractors’ books, records, correspondence, accounting procedures and practices, and any other supporting evidence relating to this Contract, including the papers of any Contractor and its Subcontractors’ employees who perform any Work or Services pursuant to this Contract (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 (1) evaluation and verification of any invoices, payments or claims based on Contractor’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 Contract and (2) evaluation of the Contractor’s and its Subcontractors’ compliance with the Arizona employer sanctions laws referenced in Section 3.70 below. To the extent necessary for the Town to audit Records as set forth in this Section, Contractor 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 Contract for the duration of the Work and until three years after the date of final payment by the Town to Contractor pursuant to this Contract. Contractor 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 Section. The Town shall give Contractor or its Subcontractors reasonable advance notice of intended audits. Contractor shall require its Subcontractors to comply with the provisions of this Section by insertion of the requirements hereof in any subcontract pursuant to this Contract. 3.64 E-verify Requirements. To the extent applicable under ARIZ. REV. STAT. § 41-4401, the Contractor 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). Contractor’s or its Subcontractors’ failure to comply with such warranty shall be deemed a material breach of this Contract and may result in the termination of this Contract by the Town. 3.65 Israel. Contractor 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. 3.66 Right to Inspect Plant. The Town may, at reasonable times, inspect the part of the plant or place of business of the Contractor or Subcontractor that is related to the performance of this Contract. 3.67 Warranties. Contractor warrants to the Town that all Materials and equipment furnished shall be new unless otherwise specified and agreed by the Town and that all Work shall be of first class quality, free from faults and defects and in conformance with the Contract. If at any time within one year following the date of Final Completion and acceptance of the entire Project (or such longer period as may be provided under warranties for equipment or Materials): (A) any part of the Materials furnished in connection with the Work shall be or become defective due to defects in either labor or Materials, or both, or (B) Contractor’s Work or Materials, or both, are or TOWN OF FOUNTAIN HILLS PUBLIC WORKS DEPARTMENT 2021-001 31 were not in conformance with original or amended Plans and Specifications, or supplementary shop drawings, then the Contractor shall upon written notice from the Town immediately replace or repair such defective or non- conforming Material or workmanship at no cost to the Town. Contractor further agrees to execute any special guarantees as provided by the Contract or required by law. Contractor shall require similar guarantees from all vendors and from all its Subcontractors. Contractor further agrees, upon written demand of the Town and during the course of construction, to immediately re-execute, repair or replace any Work that fails to conform to the requirements of the Contract, whether caused by faulty Materials or workmanship, or both. In the event Contractor shall fail or refuse to make such change upon the Town’s written demand, the Town shall have the right to have such Work re-executed, repaired or replaced, to withhold from or back charge to Contractor all costs incurred thereby. 3.68 Inspection. All Materials and/or Services are subject to final inspection and acceptance by the Town. Materials and/or Services failing to conform to the Specifications of this Contract will be held at Contractor’s risk and may be returned to the Contractor. If so returned, all costs are the responsibility of the Contractor. Upon discovery of non-conforming Materials or Services, the Town may elect to do any or all of the following by written notice to the Contractor: (A) waive the non-conformance; (B) stop the Work immediately; or (C) bring material or service into compliance and withhold the cost of same from any payments due to the Contractor. 3.69 No Replacement of Defective Tender. Every tender of Materials shall fully comply with all provisions of the Contract. If a tender is made which does not fully conform, this shall constitute a breach of the Contract as a whole. 3.70 Shipment Under Reservation Prohibited. Contractor is not authorized to ship Materials under reservation and no tender of a bill of lading will operate as a tender of the Materials. 3.71 Liens. All Materials, Service or construction shall be free of all liens and, if the Town requests, a formal release of all liens shall be delivered to the Town. 3.72 Licenses. Contractor shall maintain in current status all Federal, State and Local licenses and permits required for the operation of the business conducted by the Contractor as applicable to this Contract. 3.73 Patents and Copyrights. All Services, information, computer program elements, reports and other deliverables, which may be patented or copyrighted and created under this Contract are the property of the Town and shall not be used or released by the Contractor or any other person except with the prior written permission of the Town. 3.74 Preparation of Specifications by Persons other than Town Personnel. All Specifications shall seek to promote overall economy for the purposes intended and encourage competition and not be unduly restrictive in satisfying the Town’s needs. No person preparing Specifications shall receive any direct or indirect benefit from the utilization of Specifications, other than fees paid for the preparation of Specifications. 3.75 Advertising. Contractor shall not advertise or publish information concerning this Contract without prior, written consent of the Town. 3.76 Conflicting Terms. In the event of any inconsistency, conflict or ambiguity among the terms of the Contract, the IFB, the Scope of Work, any Town-approved Purchase Order, the Price Sheet, any Town- approved Work Orders, invoices and the Contractor’s response to the IFB, the documents shall govern in the order listed herein. PART D - ALTERNATIVE DISPUTE RESOLUTION TOWN OF FOUNTAIN HILLS PUBLIC WORKS DEPARTMENT 2021-001 32 3.77 Scope. Notwithstanding anything to the contrary provided elsewhere in the Contract Documents, except for subsection 3.86(G) below, the alternative dispute resolution (“ADR”) process provided for herein shall be the exclusive means for resolution of claims or disputes arising under, relating to or touching upon the Contract, the interpretation thereof or the performance or breach by any party thereto, including but not limited to original claims or disputes asserted as cross claims, counterclaims, third party claims or claims for indemnity or subrogation, in any threatened or ongoing litigation or arbitration with third parties, if such disputes involve parties to contracts containing this ADR provision. 3.78 Neutral Evaluator, Arbitrators. The Town will select a Neutral Evaluator to serve as set forth in this ADR process, subject to the Contractor’s approval, which approval shall not be unreasonably withheld. In the event that the Town and the Contractor are unable to agree upon a Neutral Evaluator, the neutral evaluation process shall be eliminated and the parties shall proceed with the binding arbitration process set forth in Section 3.86 below. The Town and Contractor shall each select an arbitrator to serve as set forth in this ADR process. Each arbitrator selected shall be a member of the State Bar of the State of Arizona and shall have experience in the field of construction law. None of the arbitrators nor any of the arbitrator’s firms shall have presently, or in the past, represented any party to the arbitration. 3.79 Neutral Evaluation Process. If the parties have been unable to resolve the disputes after discussions and partnering, but the parties have agreed to a Neutral Evaluator, the following neutral evaluation process shall be used to resolve any such dispute. A. Notification of Dispute. The Town through its Engineer shall notify the Neutral Evaluator in writing of the existence of a dispute within 10 Days of the Town or the Contractor declaring need to commence the neutral evaluation process. B. Non-Binding Informal Hearing. The Neutral Evaluator shall schedule a non-binding informal hearing of the matter to be held within seven Days from receipt of notification of the existence of a dispute. The Neutral Evaluator may conduct the hearing in such manner as he deems appropriate and shall notify each party of the hearing and of its opportunity to present evidence it believes will resolve the dispute. Each party to the dispute shall be notified by the Neutral Evaluator that it shall submit a written outline of the issues and evidence intended to be introduced at the hearing and the proposed resolution of the dispute to the Neutral Evaluator before the hearing commences. Arbitrators shall not participate in such informal hearing or proceedings process. The Neutral Evaluator is not bound by the rules of evidence when admitting evidence in the hearing and may limit the length of the hearing, the number of witnesses or any evidence introduced to the extent deemed relevant and efficient. C. Non-Binding Decision. The Neutral Evaluator shall render a non-binding written decision as soon as possible, but not later than five Days after the hearing. 3.80 Binding Arbitration Procedure. The following binding arbitration procedure, except as provided in subsection 3.86(G) below, shall serve as the exclusive method to resolve a dispute if (A) the parties cannot agree to a Neutral Evaluator as set forth in Section 3.84 above or (B) any party chooses not to accept the decision of the Neutral Evaluator. The party requesting binding arbitration shall notify the Neutral Evaluator of a request for arbitration in writing within three business days’ of receipt of the Neutral Evaluator’s decision. If the Contractor requests arbitration or if Contractor rejects the Town’s selection of a Neutral Evaluator, it shall post a cash bond with the Neutral Evaluator in an amount agreed upon by the parties or, in the event of no agreement, the Neutral Evaluator shall establish the amount of the cash bond to defray the cost of the arbitration as set forth in subsection 3.86(M) and the proceeds from the bond shall be allocated in accordance with subsection 3.86(M) by the Arbitration Panel. A. Arbitration Panel. The Arbitration Panel shall consist of three arbitrators: the Town’s appointed arbitrator, the Contractor’s appointed arbitrator and a third arbitrator (or “Neutral Arbitrator”) who shall be selected by the parties’ arbitrators as set forth in subsection 3.86(B) If more than one consultant or contractor is TOWN OF FOUNTAIN HILLS PUBLIC WORKS DEPARTMENT 2021-001 33 involved in a dispute, the consultants and/or contractors shall agree on an appointee to serve as arbitrator. The Neutral Evaluator shall not participate in the proceedings. B. Selection of Neutral Arbitrator. The parties’ arbitrators shall choose the Neutral Arbitrator within five business days of receipt of notification of a dispute from the Neutral Evaluator. The Neutral Arbitrator shall have the same qualifications as those of the arbitrators set forth in subsection 3.84. In the event that the selected arbitrators cannot agree on the Neutral Arbitrator as set forth above, the Neutral Arbitrator shall be the “Default Neutral Arbitrator,” a person or entity jointly selected by the Town and the Contractor. If the Town and the Contractor cannot agree on a Default Neutral Arbitrator, the Town and the Contractor shall each submit two names to an appropriate judge who shall select one person to serve as the Default Neutral Arbitrator. C. Expedited Hearing. The parties have structured this procedure with the goal of providing for the prompt, efficient and final resolution of all disputes falling within the purview of this ADR process. To that end, any party can petition the Neutral Evaluator to set an expedited hearing. If the Neutral Evaluator determines that the circumstances justify it, the Neutral Evaluator shall contact the selected Arbitration Panel and arrange for scheduling of the arbitration at the earliest possible date. In any event, the hearing of any dispute not expedited will commence as soon as practical but in no event later than 20 Days after notification of request for arbitration having been submitted. This deadline can be extended only with the consent of all the parties to the dispute, or by decision of the Arbitration Panel upon a showing of emergency circumstances. D. Procedure. The Arbitration Panel will select a Chairman and will conduct the hearing in such a manner that will resolve disputes in a prompt, cost efficient manner giving regard to the rights of all parties. Each party shall supply to the Arbitration Panel a written pre-hearing statement which shall contain a brief statement of the nature of the claim or defense, a list of witnesses and exhibits, a brief description of the subject matter of the testimony of each witness who will be called to testify, and an estimate as to the length of time that will be required for the arbitration hearing. The Arbitration Panel shall review and consider the Neutral Evaluator decision, if any. The Chairman shall determine the nature and scope of discovery, if any, and the manner of presentation of relevant evidence consistent with deadlines provided herein and the parties’ objective that disputes be resolved in a prompt and efficient manner. No discovery may be had of any materials or information for which a privilege is recognized by Arizona law. The Chairman upon proper application shall issue such orders as may be necessary and permissible under law to protect confidential, proprietary or sensitive materials or information from public disclosure or other misuse. Any party may make application to the Maricopa County Superior Court to have a protective order entered as may be appropriate to confirm such orders of the Chairman. E. Hearing Days. In order to effectuate parties’ goals, the hearing once commenced, will proceed from business day to business day until concluded, absent a showing of emergency circumstances. F. Award. The Arbitration Panel shall, within 10 Days from the conclusion of any hearing, by majority vote issue its award. The award shall include an allocation of fees and costs pursuant to subsection 3.86(M) herein. The award is to be rendered in accordance with this Contract and the laws of the State of Arizona. G. Scope of Award. The Arbitration Panel shall be without authority to award punitive damages, and any such punitive damage award shall be void. The Arbitration Panel shall be without any authority to issue an award against any individual party in excess of twenty percent (20%) of the original Contract amount, but in no event shall any award exceed $2,000,000, exclusive of interest, arbitration fees, costs and attorneys’ fees. If an award is made against any individual party in excess of $100,000, exclusive of interest, arbitration fees, costs and attorneys’ fees, it must be supported by written findings of fact, conclusions of law and a statement as to how damages were calculated. Any claim in excess of twenty percent (20%) of the original Contract amount or in excess $2,000,000 shall be subject to the jurisdiction of the Superior Court of Arizona, Maricopa County. Any party can contest the validity of the amount claimed if an action is filed in the Superior Court. H. Jurisdiction. The Arbitration Panel shall not be bound for jurisdictional purposes by the amount asserted in any party’s claim, but shall conduct a preliminary hearing into the question of jurisdiction upon TOWN OF FOUNTAIN HILLS PUBLIC WORKS DEPARTMENT 2021-001 34 application of any party at the earliest convenient time, but not later than the commencement of the arbitration hearing. I. Entry of Judgment. Any party can make application to the Maricopa County Superior Court for confirmation of an award, and for entry of judgment on it. J. Severance and Joinder. To reduce the possibility of inconsistent adjudications: (1) the Neutral Evaluator or the Arbitration Panel may, at the request of any party, join and/or sever parties, and/or claims arising under other contracts containing this ADR provision, and (2) the Neutral Evaluator, on his own authority, or the Arbitration Panel may, on its own authority, join or sever parties and/or claims subject to this ADR process as they deem necessary for a just resolution of the dispute, consistent with the parties’ goal of the prompt and efficient resolution of disputes, provided, however, that the Contractor, Architect/Engineer and Project professionals shall not be joined as a party to any claim made by a Contractor. Nothing herein shall create the right by any party to assert claims against another party not germane to the Contract or not recognized under the substantive law applicable to the dispute. Neither the Neutral Evaluator nor the Arbitration Panel are authorized to join to the proceeding parties not in privity with the Town. Contractor cannot be joined to any pending arbitration proceeding, without Contractor’s express written consent, unless Contractor is given the opportunity to participate in the selection of the non-Town appointed arbitrator. K. Appeal. Any party may appeal (1) errors of law by the Arbitration Panel if, but only if, the errors arise in an award in excess of $100,000, (2) the exercise by the Chairman or Arbitration Panel of any powers contrary to or inconsistent with the Contract or (3) on the basis of any of the grounds provided in ARIZ. REV. STAT. § 12-1512, as amended. Appeals shall be to the Maricopa County Superior Court within 15 Days of entry of the award. The standard of review in such cases shall be that applicable to the consideration of a motion for judgment notwithstanding the verdict, and the Maricopa County Superior Court shall have the authority to confirm, vacate, modify or remand an award appealed under this Section, but not to conduct a trial, entertain the introduction of new evidence or conduct a hearing de novo. L. Uniform Arbitration Act. Except as otherwise provided herein, binding arbitration pursued under this provision shall be governed by the Uniform Arbitration Act as codified in Arizona in ARIZ. REV. STAT. § 12-1501, et seq. M. Fees and Costs. Each party shall bear its own fees and costs in connection with any informal hearing before the Neutral Evaluator. All fees and costs associated with any arbitration before the Arbitration Panel, including without limitation the Arbitration Panelists’ fee, and the prevailing party’s reasonable attorneys’ fees, expert witness fees and costs, will be paid by the non-prevailing party, except as provided for herein. In no event shall any Arbitrator’s hourly fees be awarded in an amount in excess of $200 per hour and (1) costs shall not include any travel expenses in excess of mileage at the rate paid by the Town, not to exceed a one way trip of 150 miles, and (2) all travel expenses, including meals, shall be reimbursed pursuant to the travel policy of the Town in effect at the time of the hearing. The determination of prevailing and non-prevailing parties, and the appropriate allocation of fees and costs, will be included in the award by the Arbitration Panel. Fees for the Neutral Evaluator shall be divided evenly between the Town and the Contractor. N. Confidentiality. Any proceeding initiated under ADR shall be deemed confidential to the maximum extent allowed by Arizona law and no party shall, except for disclosures to a party’s attorneys or accountants, make any disclosure related to the disputed matter or to the outcome of any proceeding except to the extent required by law, or to seek interim equitable relief, or to enforce an agreement reached by the parties or an award made hereunder. O. Equitable Litigation. Notwithstanding any other provision of ADR to the contrary, any party can petition the Maricopa County Superior Court for interim equitable relief as necessary to preserve the status quo and prevent immediate and irreparable harm to a party or to the Program pending resolution of a dispute pursuant to ADR provided herein. No court may order any permanent injunctive relief except as may be necessary TOWN OF FOUNTAIN HILLS PUBLIC WORKS DEPARTMENT 2021-001 35 to enforce an order entered by the Arbitration Panel. The fees and costs incurred in connection with any such equitable proceeding shall be determined and assessed in ADR. P. Change Order. Any award in favor of the Contractor against the Town or in favor of the Town against the Contractor shall be reduced to a Change Order and executed by the parties in accordance with the award and the provisions of this Contract. Q. Merger and Bar. Any claim asserted pursuant to this ADR process shall be deemed to include all claims, demands, and requests for compensation for costs and losses or other relief, including the extension of the Contract performance period which reasonably should or could have been brought against any party that was or could have been brought into this ADR process, with respect to the subject claim. The Arbitration Panel shall apply legal principles commonly known as merger and bar to deny any claim or claims against any party regarding which claim or claims recovery has been sought or should have been sought in a previously adjudicated claim for an alleged cost, loss, breach, error, or omission. R. Inclusion in Other Contracts. The Contractor shall cooperate with the Town in efforts to include this ADR provision in all other Project contracts. Subject to Contractor’s reasonable agreement, the Contractor agrees that any modification to this ADR provision that is included in the construction or other contracts shall also apply to the Contractor. It is the intent of the parties that any changes to this ADR provision in later contracts will be evolutionary and designed to incorporate the terms of this ADR provision without material changes to the substance or procedure of this ADR provision. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] EXHIBIT A TO INVITATION FOR BIDS NO. 2020-82 Fountain Hills Blvd Shoulder Paving Phase II See following pages. EXHIBIT B TO INVITATION FOR BIDS NO. 2021-001 [Substitution/Equal Request Form] See following pages. B-1 SUBSTITUTION/EQUAL REQUEST FORM Fountain Hills Blvd Shoulder Paving Phase II 2021-001 Bidder _____________________ hereby submits for Town’s consideration the following product, instead of the specified item, for the above Project. Section Page Paragraph/Line Specified Item ________________ _______ ________________________ _______________________________ Proposed Substitution: _______________________________________________________________________ ___________________________________________________________________________________________ (NOTE: See Article II – Bid Process; Bid Award, Section 2.4(C), Approval of Substitutions, or Section 2.4(D), Use of Equals, as applicable, for additional criteria concerning prior approval for substitutions or use equals of material and equipment.) Attach complete product description, drawings, photographs, performance and test data, and other information necessary for evaluation, indicating by highlighting all comparable data between specified item and proposed substitution or equal. Identify specific model numbers, finishes, options, etc. A. Will changes be required to Project design (architecturally, structurally, mechanically or electrically) in order to properly install proposed substitution? Yes _____ No _____ If Yes, explain: ____________________________________________________________________________________________ ____________________________________________________________________________________________ B. Will the undersigned pay for changes to the Project design, including engineering and drawing costs, caused by requested substitution? Yes _____ No _____ C. List differences between proposed substitution and specified item. Specified Item Proposed Substitution ___________________________________________ ____________________________________________ ___________________________________________ ____________________________________________ D. Does substitution affect Drawing dimensions? Yes _____ No _____ If Yes, explain: ____________________________________________________________________________________________ ____________________________________________________________________________________________ E. What effect does substitution have on other trades? ___________________________________ ____________________________________________________________________________________________ F. Does manufacturer’s warranty of proposed substitution differ from that specified? Yes _____ No _____ If Yes, explain: ____________________________________________________________ ____________________________________________________________________________________________ B-2 G. Will substitution affect progress schedule? Yes _____ No _____ If Yes, explain: ____________________________________________________________________________________________ ____________________________________________________________________________________________ H. Will substitution require more license fees or royalties than specified product? Yes _____ No _____ If Yes, explain: ____________________________________________________________ ____________________________________________________________________________________________ I. Will maintenance and service parts be locally available for substitution? Yes _____ No _____ If Yes, explain: ____________________________________________________________ ____________________________________________________________________________________________ J. Will substitution be compatible with all adjacent material and/or applications to or on the proposed substitution? Yes _____ No _____ If no, explain what material substitutions will be required to make your proposed substitution compatible: ___________________________________________________________ ____________________________________________________________________________________________ List materials that will be required to provide compatibility: ___________________________________________ ____________________________________________________________________________________________ The undersigned hereby assumes all responsibility for all provisions indicated herein and agrees that, if adequate comparable information is not provided as required by Section 2.4(C), Approval of Substitutions, or Section 2.4(D), Use of Equals, as applicable, and this Form, the proposed substitution or equal shall be subject to rejection. The undersigned understands and agrees that the substitution requested, including all supporting data, must be submitted to and be in the possession of the Town 10 full Days prior to the Bid Deadline, to be considered, including all supporting data for the substitution. Telegraphic (facsimile) or electronic (email) copies will not be considered. Submitted by: For Town’s Use Only: _______________________________________ Accepted: ____________________________________ Signature Accepted: ____________________________________ _______________________________________ Print Name By: ________________________ Date: ____________ _______________________________________ Remarks: _____________________________________ Title _____________________________________________ _____________________________________________ _______________________________________ Company Name _______________________________________ Address _______________________________________ City, State, Zip Code _______________________________________ Date Telephone No. EXHIBIT C TO INVITATION FOR BIDS NO. 2021-001 [Price Sheet] See following pages. C-1 PRICE SHEET Fountain Hills Blvd Shoulder paving phase II 2021-001 NOTE: All pricing blanks must be filled in. Empty or unfilled spaces in the Bid Price Sheet shall result in a determination that a Bid is non-responsive. * ALL BIDS ARE PRESUMED TO INCLUDE ALL APPLICABLE TAXES. CONTRACTOR IS RESPONSIBLE FOR ENSURING THAT ALL MATERIALS CONTAINED IN THE PLANS FOR THE PROJECT ARE BID ON THE PRICE SHEET. BID ITEM NUMBER ITEM DESCRIPTION UNIT QUANTITY UNIT COST TOTAL 1 Roadway Excavation CY 2915 2 Aggregate Base CY 712 3 Asphaltic Concrete TN 1095 4 Install C/G Mag 220 Type A (Machine) LF 5708 5 Install C/G Mag 220 Type A (Hand ST) LF 1378 6 Concrete Spillway Incl Turndown SF 1106 7 Manhole Adjustments EA 4 8 Water Valve Adjustments EA 14 9 Signs LS 1 10 Rip Rap Dumped D50 = 15" CY 54 11 Traffic Control LS 1 12 Survey LS 1 13 Quality Control LS 1 14 Oblite & Striping LS 1 15 SWPP LS 1 16 ADEQ Dust Permit LS 1 17 Mobilization LS 1 SUB- TOTAL MISCELLANEOUS: * CONSTRUCTION ENGINEERING LS $ - * ENGINEERING CONTINGENCY LS $ - TOTAL $ - ACCEPTANCE OF OPTIONAL ITEMS No. 2 Yes _____ No _____ Authorized By: _______________________________________ C-2 No. 3 Yes _____ No _____ Authorized By: _______________________________________ No. 4 Yes _____ No _____ Authorized By: _______________________________________ EXHIBIT D TO INVITATION FOR BIDS NO. 2021-001 [Federal Requirements] See following page. Not applicable to this Project. EXHIBIT E TO INVITATION FOR BIDS NO. 2021-001 [Licenses; DBE/WBE Status] See following page. E-1 LICENSES; DBE/WBE STATUS Fountain Hills Blvd shoulder paving phase II 2021-001  Attach a copy of your Contractor’s License to your bid submittal.  Attach a copy of your Town of Fountain Hills Business License to your bid submittal.  Attach a copy of your Arizona Transaction Privilege Tax License Has your firm been certified by any jurisdiction in Arizona as a minority or woman owned business enterprise? Yes__________, No____________. If yes, please provide details and documentation of the certification. EXHIBIT F TO Fountain Hills Blvd Shoulder paving phase II INVITATION FOR BIDS NO. 2021-001 [References] See following page(s). F-1 REFERENCES _________________________________________________ Provide the following information for three clients for whom Bidder has successfully completed similar projects as set forth in Section 2.16 within the past 60 months. Failure to provide three accurate and suitable references will result in disqualification. Bidder may also attach another sheet with additional references. 1. Company: Address City/State/Zip Code Contact: Telephone Number: Date of Contract Initiation: Date of Contract Expiration: Final Project Cost: Project Description: 2. Company: Address City/State/Zip Code Contact: Telephone Number: Date of Contract Initiation: Date of Contract Expiration: Final Project Cost: Project Description: 3. Company: Address City/State/Zip Code Contact: Telephone Number: Date of Contract Initiation: Date of Contract Expiration: Final Project Cost: Project Description: EXHIBIT G TO Fountain Hills Blvd Shoulder paving phase II INVITATION FOR BIDS NO. 2021-001 [Bid Bond] See following page. G-1 BID BOND Fountain Hills Blvd Shoulder paving phase II 2021-001 KNOW ALL PERSONS BY THESE PRESENTS: THAT, _____________________________________________________________________ (hereinafter called Principal), as Principal, and ___________________________________________________, a corporation organized and existing under the laws of the State of _______________________________________________ with its principal office in the City of __________________________, (hereinafter called the Surety), as Surety, are held and firmly bound unto the Town of Fountain Hills, (hereinafter called the Obligee) in the penal sum of Ten Percent (10%) of Bid Amount, ______________________________ (Dollars) ($________________) lawful money of the United States of America, to be paid to the order of the Town of Fountain Hills, for the payment whereof, the said Principal and Surety bind themselves, and their heirs, administrators, executors, successors and assigns, jointly and severally, firmly by these presents and in conformance with A.R.S. Section 34-201. WHEREAS, the Principal has submitted a bid/proposal for:___________________________________. NOW, THEREFORE, if the Obligee accepts the proposal of the Principal and the Principal enters into a Contract with the Obligee in accordance with the terms of the proposal and gives the Bonds and Certificates of Insurance as specified in the Standard Specifications with good and sufficient surety for the faithful performance of the Contract and for the prompt payment of labor and materials furnished in the prosecution of the Contract, or in the event of the failure of the Principal to enter into the Contract and give the Bonds and Certificates of Insurance, if the Principal pays to the Obligee the difference not to exceed the penalty of the Bond between the amount specified in the proposal and such larger amount for which the Obligee may in good faith contract with another party to perform the Work covered by the proposal then this obligation is void. Otherwise it remains in full force and effect provided, however, that this Bond is executed pursuant to the provisions of Section 34-201, Arizona Revised Statutes, and all liabilities on this Bond shall be determined in accordance with the provisions of the section to the extent as if it were copied at length herein. The prevailing party in a suit on this bond shall recover as part of the judgment reasonable attorney fees that may be fixed by a judge of the Court. Witness our hands this ___________ day of ___________________________________20____. ______________________________________________ Principal Seal By: __________________________________________ ______________________________________________ Surety Seal By: __________________________________________ ______________________________________________ Agency of Record EXHIBIT H TO Fountain Hills Blvd Shoulder paving phase II INVITATION FOR BIDS NO. 2021-001 [Key Personnel/Subcontractor Listing] See following page. H-1 KEY PERSONNEL/SUBCONTRACTOR LISTING Fountain Hills Blvd Shoulder Paving Phase II 2021-001 Key Personnel and Subcontractors listed herein shall be utilized on this Project. Category: Personnel/ Subcontractor Name, Contact Information: _____________________________________________________ _____________________________________________________ _____________________________________________________ _____________________________________________________ _____________________________________________________ _____________________________________________________ _____________________________________________________ _____________________________________________________ _____________________________________________________ _____________________________________________________ _____________________________________________________ _____________________________________________________ _____________________________________________________ _____________________________________________________ _____________________________________________________ _____________________________________________________ EXHIBIT I TO Fountain Hills Blvd Shoulder Paving Phase II INVITATION FOR BIDS NO. 2021-001 [Performance Bond] See following page. I-1 PERFORMANCE BOND Fountain Hills Blvd Shoulder Paving Phase II 2021-001 KNOW ALL PERSONS BY THESE PRESENTS: THAT, ___________________________________________________________ (hereinafter called Principal), as Principal, and_________________________________________, a corporation organized and existing under the laws of the State of ____________________________, with its principal office in the City of ________________________ (hereinafter called the Surety), as Surety, are held and firmly bound unto the Town of Fountain Hills (hereinafter called the Obligee) in the amount of ______________________________(Dollars) ($_____________________), for the payment whereof, the said Principal and Surety bind themselves, and their heirs, administrators, executors, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, the Principal has entered into a certain written Contract with the Obligee, dated the ________ day of _________________ 20___, for the material, service or construction described as ___________________________________________________________________ is hereby referred to and made a part hereof as fully and to the same extent as if copied at length herein. NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal faithfully performs and fulfills all of the undertakings, covenants, terms, conditions and agreements of the Contract during the original term of the Contract and any extension of the Contract, with or without notice to the Surety, and during the life of any guaranty required under the Contract, and also performs and fulfills all of the undertakings, covenants, terms, conditions and agreements of all duly authorized modifications of the Contract that may hereafter be made, notice of which modifications to the surety being hereby waived, the above obligation is void. Otherwise it remains in full force and effect. PROVIDED, however, that this bond is executed pursuant to the provisions of Title 34, Chapter 2, Article 2, Arizona Revised Statutes, and all liabilities on this bond shall be determined in accordance with the provisions of Title 34, Chapter 2, Article 2, Arizona Revised Statutes, to the extent as if it were copied at length in this agreement. The prevailing party in a suit on this bond shall recover as part of the judgment reasonable attorney fees that may be fixed by a judge of the Court. Witness our hands this _______ day of ________________________ 20___. ____________________________________________ Principal Seal By: ________________________________________ ____________________________________________ Surety Seal By: ________________________________________ ____________________________________________ Agency of Record EXHIBIT J TO Fountain Hills Blvd Shoulder Paving Phase II INVITATION FOR BIDS NO. 2021-001 [Payment Bond] See following page. J-1 PAYMENT BOND Fountain Hills Blvd Shoulder Paving Phase II 2021-001 KNOW ALL PERSONS BY THESE PRESENTS: THAT, __________________________________________ (hereinafter called Principal), as Principal, and _______________________________, a corporation organized and existing under the laws of the State of __________________________, with its principal office in the City of ______________________ (hereinafter called the Surety), as Surety, are held and firmly bound unto the Town of Fountain Hills (hereinafter called the Obligee) in the amount of ____________________________________(Dollars) ($___________________), for the payment whereof, the said Principal and Surety bind themselves, and their heirs, administrators, executors, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, the Principal has entered into a certain written Contract with the Obligee, dated the ___________ day of _________________ 20___, for the material, service or construction described as _________________________________________ which Contract is hereby referred to and made a part hereof as fully and to the same extent as if copied at length herein. NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal promptly pays all monies due to all persons supplying labor or materials to the Principal or the Principal’s Subcontractors in the prosecution of the Work provided for in the Contract, this obligation is void. Otherwise it remains in full force and effect. PROVIDED, however, that this bond is executed pursuant to the provisions of Title 34, Chapter 2, Article 2, Arizona Revised Statutes, and all liabilities on this bond shall be determined in accordance with the provisions, conditions and limitations of Title 34, Chapter 2, Article 2, Arizona Revised Statutes, to the same extent as if they were copied at length in this agreement. The prevailing party in a suit on this bond shall recover as a part of the judgment reasonable attorney fees that may be fixed by a judge of the Court. Witness our hands this _______ day of _________________, 20___. ____________________________________________ Principal Seal By: ________________________________________ ____________________________________________ Surety Seal By:________________________________________ ____________________________________________ Agency of Record EXHIBIT K TO Fountain Hills Blvd Shoulder Paving Phase II INVITATION FOR BIDS NO. 2021-001 [Acknowledgments of Addenda received] See following page(s). SUNRISE ENGINEERING, INC.2045 S. Vineyard, Suite 101 Mesa, Arizona 85210Tel: (480) 562-5048 Project:Fountain Hills Interim Design Shea Blvd to Crystal Ridge Drive Owner:Town of Fountain Hills Prepared By: No. Total Unit Unit Cost Extended Price Unit Cost Extended Price Unit Cost Extended Price Unit Cost Extended Price Unit Cost Extended Price 1 1,610 SY $30.00 $48,300.00 $20.00 32,200.00 $58.50 94,185.00 $20.00 32,200.00 $30.00 48,300.00 2 1 LS $12,500.00 $12,500.00 $12,000.00 $12,000.00 $23,185.00 $23,185.00 $25,000.00 $25,000.00 $36,000.00 $36,000.00 3 2,799 CY $50.00 $139,950.00 $28.00 $78,372.00 $75.00 $209,925.00 $55.00 $153,945.00 $45.00 $125,955.00 4 668 CY $92.00 $61,456.00 $65.00 $43,420.00 $86.50 $57,782.00 $76.00 $50,768.00 $50.00 $33,400.00 5 1,014 CY $126.00 $127,764.00 $85.00 $86,190.00 $125.50 $127,257.00 $100.00 $101,400.00 $130.00 $131,820.00 6 9 EA $600.00 $5,400.00 $550.00 $4,950.00 $760.00 $6,840.00 $750.00 $6,750.00 $350.00 $3,150.00 7 4 EA $750.00 $3,000.00 $700.00 $2,800.00 $840.00 $3,360.00 $1,200.00 $4,800.00 $450.00 $1,800.00 8 2 EA $4,500.00 $9,000.00 $3,500.00 $7,000.00 $1,650.00 $3,300.00 $2,200.00 $4,400.00 $3,700.00 $7,400.00 9 100 CY $175.00 $17,500.00 $135.00 $13,500.00 $240.00 $24,000.00 $135.00 $13,500.00 $250.00 $25,000.00 10 1 EA $1,750.00 $1,750.00 $500.00 $500.00 $1,650.00 $1,650.00 $550.00 $550.00 $600.00 $600.00 11 81 CY $175.00 $14,175.00 $45.00 $3,645.00 $275.00 $22,275.00 $140.00 $11,340.00 $275.00 $22,275.00 12 6,671 LF $20.00 $133,420.00 $23.00 $153,433.00 $35.50 $236,820.50 $24.00 $160,104.00 $21.00 $140,091.00 13 27 LF $75.00 $2,025.00 $100.00 $2,700.00 $175.00 $4,725.00 $120.00 $3,240.00 $115.00 $3,105.00 14 25 EA $125.00 $3,125.00 $190.00 $4,750.00 $340.00 $8,500.00 $350.00 $8,750.00 $220.00 $5,500.00 15 1 LS $99,000.00 $99,000.00 $49,340.00 $49,340.00 $48,925.00 $48,925.00 $121,000.00 $121,000.00 $41,500.00 $41,500.00 16 1 LS $24,000.00 $24,000.00 $17,000.00 $17,000.00 $27,475.00 $27,475.00 $35,000.00 $35,000.00 $15,500.00 $15,500.00 17 1 LS $20,000.00 $20,000.00 $10,000.00 $10,000.00 $13,785.00 $13,785.00 $40,000.00 $40,000.00 $13,004.00 $13,004.00 18 1 LS $2,000.00 $2,000.00 $4,200.00 $4,200.00 $8,770.00 $8,770.00 $10,000.00 $10,000.00 $4,000.00 $4,000.00 19 1 LS $25,000.00 $25,000.00 $5,000.00 $5,000.00 $9,270.00 $9,270.00 $6,500.00 $6,500.00 $8,500.00 $8,500.00 20 1 LS $5,000.00 $5,000.00 $2,000.00 $2,000.00 $1,700.00 $1,700.00 $5,000.00 $5,000.00 $2,500.00 $2,500.00 21 1 LS $80,000.00 $80,000.00 $29,000.00 $29,000.00 $19,600.00 $19,600.00 $85,000.00 $85,000.00 $36,000.00 $36,000.00 22 1 LS $83,436.50 $83,436.50 $50,000.00 $50,000.00 $97,022.95 $97,022.95 $87,924.70 $87,924.70 $70,540.00 $70,540.00 $917,801.50 $612,000.00 $1,050,352.45 $967,171.70 $775,940.00 Y Y Y Y Y N Y Y Y N AZ Transaction Privilege Tax License: Y Y Y Y Y Y Y Y Y Y 4 4 4 4 4 Y Y Y Y Y Y Y Y Y Y Relocate Existing Water Meter Box And Adjust To Finished Grade Per Epcor Std Detail 342-2 Addendums: References: Contractor's License TOFH Business License: Construct Footer Curb Per Foutain Hills Std Detail Fh-553 Construct 5' Curb Transition Per Town Of Fountain Hills Std Detail Fh-226 Mobilization Owner's Allowance 10% of Bid Bond Traffic Control Survey Quality Control SWPPP ADEQ/County Dust Permit Bid Bond: Obliterate Striping Contractor Bid Tabs Item Description - Construction Demolition Remove Existing Asphalt and Base Course Remove and Replace Signs Standard Construction 1 2 3 4 5 Key Personnel: Visus Engineering Construction, Inc.J Banicki Construction, Inc. Paveco Inc. Gonzalez Asphalt, Inc. Riprap And Rock Mulch, Gradation C Construct Vertical Curb & Gutter Per Mag Std Detail 220-1 Roadway Excavation Adjust Existing Water Valve To Finished Grade Per Mag Std Detail 270 Paving 4" ABC (Aggregate Base Course) Install D/50=15" Riprap, T=18" Over Nonwoven Very High Survivability Geotextile Fabric 3" AC (Asphalt Concrete) Adjust Existing Manhole Frame & Cover To Finished Grade Per Mag Std Detail 422 Relocate Existing Blow Off Valve To 10' Minimum Outside New Paved Shoulder Per Epcor Detail 390-1 1 Contract No. 2021-001 PROFESSIONAL SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND VISUS ENGINEERING CONSTRUCTION, INC. THIS PROFESSIONAL SERVICES AGREEMENT (this “Agreement”) is entered into as of August 24, 2020, between the Town of Fountain Hills, an Arizona municipal corporation (the “Town”) and Visus Engineering Construction, Inc., a(n) Arizona corporation (the “Vendor”). RECITALS A. The Town issued an Invitation for Bids, IFB No. 2021-001 (the “IFB”), a copy of which is on file with the Town and incorporated herein by reference, seeking proposals from vendors interested in providing professional services related to Phase 2 of the Fountain Hills Blvd. shoulder paving project (the “Services”). B. The Vendor responded to the IFB by submitting a bid, together with all addenda (the “Bid”), attached hereto as Exhibit A and incorporated herein by reference. C. The Town desires to enter into an Agreement with the Vendor to perform the Services, as set forth 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 Vendor 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 August 23, 2021 (the “Term”), unless terminated as otherwise provided in this Agreement. 2. Scope of Work. Vendor shall provide the Services as set forth in the Bid attached hereto as Exhibit A. 3. Compensation. The Town shall pay the Vendor an aggregate amount not to exceed $612,000.00, $50,000.00 of which shall be an owners’ allowance, at the rates set forth in the Bid attached hereto as Exhibit A. 4. Payments. The Town shall pay the Vendor 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 2 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. Vendor Personnel. Vendor shall provide adequate, experienced personnel, capable of and devoted to the successful performance of the Services under this Agreement. Vendor agrees to assign specific individuals to key positions. If deemed qualified, the Vendor is encouraged to hire Town residents to fill vacant positions at all levels. Vendor 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, Vendor 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 Vendor’s performance. The Vendor shall provide and maintain a self-inspection system that is acceptable to the Town. 8. Licenses; Materials. Vendor shall maintain in current status all federal, state and local licenses and permits required for the operation of the business conducted by the Vendor. The Town has no obligation to provide Vendor, 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 Vendor. 9. Performance Warranty. Vendor 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. 10. Indemnification. To the fullest extent permitted by law, the Vendor 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 any and all 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 Vendor, 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. 3 11.1 General. A. Insurer Qualifications. Without limiting any obligations or liabilities of Vendor, Vendor 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 Vendor. 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 Vendor 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. E. Primary Insurance. Vendor’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 4 employees for any claims arising out of the work or services of Vendor. Vendor 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. Vendor 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, Vendor 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 Vendor. Vendor 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, Vendor 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 Vendor’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 Vendor’s responsibility to forward renewal certificates and declaration page(s) to the Town 30 days prior to the expiration date. All certificates of insurance and declarations required by this Agreement shall be identified by referencing the IFB number and title or this Agreement. A $25.00 administrative fee shall be assessed for all certificates or declarations received without the appropriate IFB 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 IFB 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. 5 (b) Auto Liability – Under ISO Form CA 20 48 or equivalent. (c) Excess Liability – Follow Form to underlying insurance. (2) Vendor’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 Vendor 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. Vendor 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 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. Vendor shall maintain Business Automobile Liability insurance with a limit of $1,000,000 each occurrence on Vendor’s owned, hired and non-owned vehicles assigned to or used in the performance of the Vendor’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 6 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 Vendor engages in any professional services or work in any way related to performing the work under this Agreement, the Vendor shall maintain Professional Liability insurance covering negligent errors and omissions arising out of the Services performed by the Vendor, or anyone employed by the Vendor, or anyone for whose negligent acts, mistakes, errors and omissions the Vendor 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. Vendor shall maintain Workers’ Compensation insurance to cover obligations imposed by federal and state statutes having jurisdiction over Vendor’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 Vendor of written notice by the Town. Upon termination for convenience, Vendor 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 Vendor for the undisputed portion of its fee due as of the termination date. 7 12.3 Due to Work Stoppage. This Agreement may be terminated by the Town upon 30 days’ written notice to Vendor 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 Vendor 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 Vendor 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 Vendor, 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 Vendor or any agent or representative of the Vendor 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 Vendor 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 Vendor 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 Agreement shall terminate at the end of then-current fiscal year and the Town and the Vendor 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 Vendor 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. Vendor, 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 Vendor, its employees or subcontractors. The Vendor, and not the Town, shall determine the time of its performance of the services provided under this 8 Agreement so long as Vendor meets the requirements as agreed in Section 2 above and in Exhibit A. Vendor is neither prohibited from entering into other contracts nor prohibited from practicing its profession elsewhere. Town and Vendor 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. Vendor 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 Vendor 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 Vendor. 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. 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 Vendor without prior, written permission of the Town, signed by the Town Manager. Any attempted assignment or delegation by Vendor in violation of this provision shall be a breach of this Agreement by Vendor. 9 13.9 Subcontracts. No subcontract shall be entered into by the Vendor with any other party to furnish any of the material or services specified herein without the prior written approval of the Town. The Vendor 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 Vendor. 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 Vendor 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. A. Offset for Damages. In addition to all other remedies at law or equity, the Town may offset from any money due to the Vendor any amounts Vendor 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 Vendor any amounts Vendor 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 10 With copy to: Pierce Coleman PLLC 4711 East Falcon Drive, Suite 111 Mesa, Arizona 85215 Attn: Aaron D. Arnson, Town Attorney If to Vendor: Visus Engineering Construction, Inc. 1831 North Rochester Mesa, Arizona 85205 Attn: Jeff Kerr, CEO 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 Vendor 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 employees, except as required to perform Vendor’s duties under this Agreement. Persons requesting such information should be referred to the Town. Vendor also agrees that any information pertaining to individual persons shall not be divulged other than to employees or officers of Vendor as needed for the performance of duties under this Agreement. 13.16 Records and Audit Rights. To ensure that the Vendor and its subcontractors are complying with the warranty under subsection 13.17 below, Vendor’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 Vendor 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 Vendor’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 Vendor’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, Vendor 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 11 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 Vendor pursuant to this Agreement. Vendor 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 Vendor or its subcontractors reasonable advance notice of intended audits. Vendor 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 Vendor 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). Vendor’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. Vendor 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 Bid, any Town-approved invoices, and the IFB, the documents shall govern in the order listed herein. 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. 12 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 Grady E. Miller, Town Manager ATTEST: Elizabeth A. Burke, Town Clerk APPROVED AS TO FORM: Aaron D. Arnson, Town Attorney (ACKNOWLEDGMENT) STATE OF ARIZONA ) ) ss. COUNTY OF MARICOPA ) On ___________________, 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. Notary Public (Affix notary seal here) [SIGNATURES CONTINUE ON FOLLOWING PAGE] 13 “Vendor” VISUS ENGINEERING CONSTRUCTION, INC., a(n) Arizona corporation By: Name: Title: (ACKNOWLEDGMENT) STATE OF ARIZONA ) ) ss. COUNTY OF MARICOPA ) On ____________________, 2020, before me personally appeared ____________________, the __________________ of VISUS ENGINEERING CONSTRUCTION, INC., a(n) Arizona corporation, whose identity was proven to me on the basis of satisfactory evidence to be the ______________________ of the corporation. Notary Public (Affix notary seal here) 4844-6892-1287 v.1 EXHIBIT A TO PROFESSIONAL SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND VISUS ENGINEERING CONSTRUCTION, INC. [Bid] See following pages. ITEM 8. G. TOWN OF FOUNTAIN HILLS STAFF REPORT    Meeting Date: 08/24/2020 Meeting Type: Town Council Special Meeting Agenda Type: Regular Agenda Submitting Department: Public Works Prepared by: Justin Weldy, Public Works Director Staff Contact Information: Justin Weldy, Public Works Director Request to Town Council Special Meeting (Agenda Language):  CONSIDERATION OF awarding a professional services agreement with Blucor Contracting for the replacement of the Panorama Drainage Pipe and approving the associated budget transfer for FY 20-21 in the amount of $309,000. Staff Summary (Background) The Panorama Drive Storm Drain was originally constructed in 1988 (pre-incorporation) by MCO Properties, as a part of the Panorama Drive Paving Improvements project. The storm drain is approximately 3000' long, and is primarily 48" diameter pipe, with 66" diameter pipe at the downstream two reaches.   Dry weather flows have frequently been noted in the channel downstream from this pipe outlet, although the cause(s) of those flows has never been clearly identified. However, those flows indicate the likelihood of drainage flow through this pipe's trench bedding and/or back flow. Water adjacent to a metallic pipe vastly increases its corrosion potential. In 2015-16, the Town's contractor cleaned this pipe (which had been half-filled with sediment) over a 2-year period.   In January 2020, a 6' x 3' surface sinkhole (and later a 2nd sinkhole) was noted near this pipe. Upon excavating at that location, staff discovered that the pipe invert (bottom) had been corroded away and that there was a large hole above the pipe for about a 20' length. Staff had a contractor remove and replace those sections of pipe and compact the backfill.   Between the date of those surface failures, Ames Companies performed a camera inspection of the full length of the Panorama Drive storm drain, to determine the lengths and severity of the pipe corrosion. The camera inspection showed numerous locations of missing pipe invert, corroded pipe areas, and substantial areas of missing bituminous lining in addition to skipping over several failing pipe invert lengths. Due to the extent of erosion over many segments of the drainage pipe, a nonstructural slip-lining of the pipe was not feasible. After discussing the problem with several pipe contractors, staff determined that the entire drainage pipe needed to be replaced with corrosion resistant pipe material.   Public Works Director Justin Weldy presented this situation to the Town Council at a work-study meeting, with Council consensus to proceed to engineering design. The firm of Wood/Patel prepared the construction plans and bid specifications to replace the Panorama Drive storm drain main line pipe with pre-cast concrete. This material is widely used for this application and has a much longer life span than bituminous coated metal piping that was used for the original construction project. On July 15, 2020, the project was posted to the Town website, published in the Fountain Hills Times and the Phoenix Business Gazette on July 16, 2020. Six bids were received and opened publicly on August 11, 2020, at 3:15pm, after review Blucor Contracting was selected as the lowest responsive bidder. The bid tabulation sheet is attached to this report. All costs will be paid from the Capital Improvements Project Fund, which contains an amount of $2,150,000 requested in the proposed FY20-21 Capital Improvement Program Budget.  Related Ordinance, Policy or Guiding Principle Capital Projects Risk Analysis Failure to repair the Panorama drainage pipe may result in additional property damage, costlier repairs, and possible injuries. Recommendation(s) by Board(s) or Commission(s) N/A Staff Recommendation(s) Staff recommends approval of Professional Services Agreement 2021-004 with Blucor Contracting Inc. SUGGESTED MOTION MOVE to approve Professional Services Agreement 2021-004 with Blucor Contracting, Inc. in the amount of $2,005,410, an owner's allowance of $205,000, and the associated budget transfer for FY 20-21 in the amount of $309,000. Fiscal Impact Fiscal Impact:$2,210,410 Budget Reference:Page 88 Funding Source:Capital Projects Fund If Multiple Funds utilized, list here: Budgeted: if No, attach Budget Adjustment Form: Attachments Blucor Bid  Bid Tab  D6058 Budget Transfer  Form Review Inbox Reviewed By Date Public Works Director (Originator)Justin Weldy 08/13/2020 07:55 AM Finance Director David Pock 08/13/2020 12:03 PM Town Attorney Aaron D. Arnson 08/14/2020 09:35 AM Town Manager Grady E. Miller 08/14/2020 09:54 AM Form Started By: Justin Weldy Started On: 07/27/2020 03:46 PM Final Approval Date: 08/14/2020  TOWN OF FOUNTAIN HILLS BID MINUTES Project Name:Panorama Drive storm drain pipe replacement Date/Time:August 11, 2020 3:15pm Arizona time IFB Solicitation:2021-004 No.Bid Owners Allowance Total 1 Degan Construction, LLC 2,100,378.65$ 205,000.00$ 2,305,378.65$ 2 Kinkaid Civil Construction 3,390,305.10$ 205,000.00$ 3,595,305.10$ 3 Standard Construction 2,814,371.00$ 205,000.00$ 3,019,371.00$ 4 T&T Construction 2,171,031.00$ 205,000.00$ 2,376,031.00$ 5 Redpoint Contracting 2,849,334.00$ 205,000.00$ 3,054,334.00$ 6 Blucor Contracting 2,005,410.00$ 205,000.00$ 2,210,410.00$ 08/13/2020 11:57 |TOWN OF FOUNTAIN HILLS |P 1 DPock |BUDGET AMENDMENTS JOURNAL ENTRY PROOF |bgamdent LN ORG OBJECT PROJ ORG DESCRIPTION ACCOUNT DESCRIPTION PREV BUDGET AMENDED ACCOUNT LINE DESCRIPTION EFF DATE BUDGET CHANGE BUDGET ERR____________________________________________________________________________________________________________________________________ YEAR-PER JOURNAL EFF-DATE REF 1 REF 2 SRC JNL-DESC ENTITY AMEND 2021 02 22 08/25/2020 PANORA STORM DRAI BUA S6058 1 1 1 CIPSTO 8085 D6058 STORMWATER CAP PROJ STORMWATER/DRAINAGE IMPROVEMEN 1,901,695.00 309,000.00 2,210,695.00 600-40-30-304-000-1960-8085-D6058 08/25/2020 2 CIPSTO 6685 D6047 STORMWATER CAP PROJ STORMWATER/DRAINAGE IMP EXP 50,000.00 -50,000.00 .00 600-40-30-304-000-1960-6685-D6047 08/25/2020 3 CIPSTO 8085 D6059 STORMWATER CAP PROJ STORMWATER/DRAINAGE IMPROVEMEN 100,000.00 -100,000.00 .00 B 600-40-30-304-000-1960-8085-D6059 08/25/2020 4 CIPST 8060 S6062 STREETS CAP PROJECTS STREET IMPROVEMENTS 75,000.00 -75,000.00 .00 B 600-40-30-302-000-1610-8060-S6062 08/25/2020 5 CIPST 8060 S6053 STREETS CAP PROJECTS STREET IMPROVEMENTS 700,000.00 -84,000.00 616,000.00 B 600-40-30-302-000-1610-8060-S6053 08/25/2020 ** JOURNAL TOTAL 0.00 08/13/2020 11:57 |TOWN OF FOUNTAIN HILLS |P 2 DPock |BUDGET AMENDMENT JOURNAL ENTRY PROOF |bgamdent CLERK: DPock YEAR PER JNL SRC ACCOUNT ACCOUNT DESC T OB DEBIT CREDIT EFF DATE JNL DESC REF 1 REF 2 REF 3 LINE DESC____________________________________________________________________________________________________________________________________ 2021 2 22 BUA CIPSTO-8085-D6058 STORMWATER/DRAINAGE IMPROVEMEN 5 309,000.00 08/25/2020 S6058 PANORA STORM DRAI T BUA CIPSTO-6685-D6047 STORMWATER/DRAINAGE IMP EXP 5 50,000.00 08/25/2020 S6058 PANORA STORM DRAI T BUA CIPSTO-8085-D6059 STORMWATER/DRAINAGE IMPROVEMEN 5 100,000.00 08/25/2020 S6058 PANORA STORM DRAI T BUA CIPST-8060-S6062 STREET IMPROVEMENTS 5 75,000.00 08/25/2020 S6058 PANORA STORM DRAI T BUA CIPST-8060-S6053 STREET IMPROVEMENTS 5 84,000.00 08/25/2020 S6058 PANORA STORM DRAI T _________________ _________________ JOURNAL 2021/02/22 TOTAL .00 .00 08/13/2020 11:57 |TOWN OF FOUNTAIN HILLS |P 3 DPock |BUDGET AMENDMENT JOURNAL ENTRY PROOF |bgamdent FUND YEAR PER JNL EFF DATE DEBIT CREDIT ACCOUNT ACCOUNT DESCRIPTION____________________________________________________________________________________________________________________________________ _________________ _________________ FUND TOTAL .00 .00 08/13/2020 11:57 |TOWN OF FOUNTAIN HILLS |P 4 DPock |BUDGET AMENDMENT JOURNAL ENTRY PROOF |bgamdent CLERK: DPock PA JOURNAL EFF DATE GL YEAR/PER/JNL SOURCE PROJECT STRING REF1 REF2 REF3 REF4 T AMOUNT_____________________________________________________________________________________________________________________________________ 6 08/25/2020 2021/02/22 BUA D6058-CONS- - PANORA STORM DRAI T S6058 5 309,000.00 BUA D6047-CONS- - PANORA STORM DRAI T S6058 5 -50,000.00 BUA D6059-CONS- - PANORA STORM DRAI T S6058 5 -100,000.00 BUA S6062-CONS- - PANORA STORM DRAI T S6058 5 -75,000.00 BUA S6053-CONS- - PANORA STORM DRAI T S6058 5 -84,000.00 Project Totals D6047 Total: -50,000.00 D6058 Total: 309,000.00 D6059 Total: -100,000.00 S6053 Total: -84,000.00 S6062 Total: -75,000.00__________________ .00______________________________________________________________________________________________________________________________________ ** END OF REPORT - Generated by DAVID POCK ** ITEM 8. H. TOWN OF FOUNTAIN HILLS STAFF REPORT    Meeting Date: 08/24/2020 Meeting Type: Town Council Special Meeting Agenda Type: Regular Agenda Submitting Department: Public Works Prepared by: Justin Weldy, Public Works Director Staff Contact Information: Justin Weldy, Public Works Director Request to Town Council Special Meeting (Agenda Language):  CONSIDERATION OF adopting Ordinance No. 20-15 amending the Town Code, Chapter 12, Traffic, Section 12-2-2, Traffic Control Devices; Speed Limits, to lower the speed on Palisades Boulevard between Shea Boulevard and Golden Eagle Boulevard, from 45 MPH to 40 MPH. Staff Summary (background) The Pedestrian and Traffic Safety Committee met on June 4, 2020, to review progress on a number of traffic and pedestrian related matters. During the meeting, staff provided additional traffic-related information that had been discussed previously by the committee. Based on direction at the meeting, staff brought forth the Committee's recommendation to the Town Council on June 16, 2020, to lower the speed on Palisades Boulevard between Shea Boulevard and Golden Eagle Boulevard, from 45 MPH to 40 MPH. The design speed limit for Palisades was originally set at 40 MPH when the roadway was built. The Town Council at that time asked the Town Engineer to raise the speed limit to 50 MPH.  After reconsideration, the Town Council approved a speed limit of 45-MPH due to concerns about speeding from residents who live in neighborhoods adjacent to Palisades.  Pursuant to A.R.S. §28-703, the Town may, on the basis of engineering and traffic investigation, declare certain streets within the Town to be reasonable and safe at speeds in excess of 25 miles per hour. The following table sets forth the maximum speed limit for certain streets within the corporate limits of the Town and the segments of streets affected by the increased maximum safe and reasonable speed limits:      Street Segment Speed Limit (MPH) All Other Roads    25   Avenue of the Fountains Palisades Blvd. To La Montana Drive                             30 Boulder Drive Golden Eagle Blvd. to Blackbird Drive 30 Boulder Drive Golden Eagle Blvd. to Blackbird Drive 30 Del Cambre Avenue Grande Blvd. to Calaveras Avenue 25 Desert Canyon Drive Sunridge Drive to Golden Eagle 35 Eagle Mountain Pkwy.Shea Blvd. to Summer Hill Blvd.35 Eagle Ridge Drive West of Copperwynd Drive 35 El Lago Blvd.Palisades Blvd. to Saguaro Blvd.30 El Pueblo Blvd.Fountain Hills Blvd. to Grande Blvd.35 Fountain Hills Blvd.Shea Blvd. to 300’ north of Kingstree Blvd.35 Fountain Hills Blvd.300’ north of Kingstree to Ironwood Drive 45 Fountain Hills Blvd.Ironwood Drive northward to Palisades Blvd.35 Fountain Hills Blvd.Palisades Blvd. to north town limit 35 Glenbrook Blvd.Bainbridge Avenue to Fountain Hills Blvd.35 Golden Eagle Blvd.Palisades Blvd. to (700’ west of Edgewater Drive)35 Grande Blvd.Saguaro Blvd. to east town limit 30 Indian Wells Drive Nicklaus Drive to 700’ west of Saguaro Blvd.20 Kingstree Blvd.Fountain Hills Blvd. to Saguaro Blvd.35 La Montana Drive El Lago Blvd. to Parkview Avenue 30 Palisades Blvd.Golden Eagle Blvd. to Saguaro Blvd.35 Palisades Blvd.Shea Blvd. to Golden Eagle Blvd.4540 Palomino Blvd.Palisades Blvd. to Fountain Hills Blvd.30 Saguaro Blvd.Shea Blvd. to Fountain Hills Blvd.35 Shea Blvd.West town limit to 1200’ west of Technology Blvd.50 Shea Blvd.1200’ west of Technology Blvd. to east town limit.45 Summer Hill Blvd.Eagle Mountain Pkwy. to gate north of Miramonte Way  30 Sunridge Drive Palisades Blvd. to Golden Eagle Blvd.35   Private Streets Firerock Country Club Drive Shea Boulevard to Rock Ridge Trail 20 Related Ordinance, Policy or Guiding Principle Ordinance No. 20-15 Risk Analysis NA Recommendation(s) by Board(s) or Commission(s) NA Staff Recommendation(s) Staff recommends approval of the change in the speed limit from 45 MPH to 40 MPH. SUGGESTED MOTION MOVE to adopt Ordinance 20-15. Fiscal Impact Fiscal Impact:$ 800.00 Budget Reference:NA Funding Source:Streets Fund If Multiple Funds utilized, list here:NA Budgeted: if No, attach Budget Adjustment Form:NA Attachments Ordinance NO. 20-15  Form Review Inbox Reviewed By Date Town Clerk Elizabeth A. Burke 08/03/2020 07:46 AM Public Works Director (Originator)Justin Weldy 08/03/2020 10:35 AM Town Attorney Elizabeth A. Burke 08/03/2020 01:43 PM Public Works Director (Originator)Justin Weldy 08/03/2020 03:12 PM Town Clerk Elizabeth A. Burke 08/04/2020 07:22 AM Public Works Director (Originator)Justin Weldy 08/05/2020 04:09 PM Town Clerk Elizabeth A. Burke 08/05/2020 04:21 PM Town Attorney Aaron D. Arnson 08/06/2020 12:28 PM Town Manager Grady E. Miller 08/06/2020 03:54 PM Form Started By: Justin Weldy Started On: 07/06/2020 10:38 AM Final Approval Date: 08/06/2020  ORDINANCE NO. 20-15 AN ORDINANCE OF THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, AMENDING THE TOWN OF FOUNTAIN HILLS TOWN CODE, CHAPTER 12, TRAFFIC, SECTION 12-2-2, TRAFFIC CONTROL DEVICES; SPEED LIMITS, TO LOWER THE SPEED ON PALISADES BOULEVARD BETWEEN SHEA BOULEVARD AND GOLDEN EAGLE BOULEVARD, FROM 45 MPH TO 40 MPH RECITALS: WHEREAS, the Town Council desires to amend the Town Code to revise Chapter 12, Traffic, by amending Subsections 12-2-2 C to reduce the speed on Palisades Boulevard between Shea Boulevard and Golden Eagle Boulevard from 45 MPH to 40 MPH. ENACTMENTS: SECTION 1. The recital above is hereby incorporated as if fully set forth herein. SECTION 2. The Town Code, Section 12-2-2, Traffic Control Devices; Speed Limits, is amended as follows: Section 12-2-2 Traffic Control Devices; Speed Limits ….. ….. C. Speed Limit List. Pursuant to this section and A.R.S. §28-703, the Town has determined on the basis of engineering and traffic investigation that the maximum speed permitted on certain streets within the Town can be declared to be reasonable and safe at speeds in excess of 25 miles per hour. The following table sets forth the maximum speed limit for certain streets within the corporate limits of the Town and the segments of said streets affected by the increased maximum safe and reasonable speed limits: Street Segment Speed Limit (MPH) All Other Roads 25 Avenue of the Fountains Palisades Blvd. To La Montana Drive 30 Boulder Drive Golden Eagle Blvd. to Blackbird Drive 30 Del Cambre Avenue Grande Blvd. to Calaveras Avenue 25 Desert Canyon Drive Sunridge Drive to Golden Eagle 35 Eagle Mountain Pkwy. Shea Blvd. to Summer Hill Blvd. 35 ORDINANCE 20-15 PAGE 2 Street Segment Speed Limit (MPH) Eagle Ridge Drive West of Copperwynd Drive 35 El Lago Blvd. Palisades Blvd. to Saguaro Blvd. 30 El Pueblo Blvd. Fountain Hills Blvd. to Grande Blvd. 35 Fountain Hills Blvd. Shea Blvd. to 300’ north of Kingstree Blvd. 35 Fountain Hills Blvd. 300’ north of Kingstree to Ironwood Drive 45 Fountain Hills Blvd. Ironwood Drive northward to Palisades Blvd. 35 Fountain Hills Blvd. Palisades Blvd. to north town limit 35 Glenbrook Blvd. Bainbridge Avenue to Fountain Hills Blvd. 35 Golden Eagle Blvd. Palisades Blvd. to (700’ west of Edgewater Drive) 35 Grande Blvd. Saguaro Blvd. to east town limit 30 Indian Wells Drive Nicklaus Drive to 700’ west of Saguaro Blvd. 20 Kingstree Blvd. Fountain Hills Blvd. to Saguaro Blvd. 35 La Montana Drive El Lago Blvd. to Parkview Avenue 30 Palisades Blvd. Golden Eagle Blvd. to Saguaro Blvd. 35 Palisades Blvd. Shea Blvd. to Golden Eagle Blvd. 4540 Palomino Blvd. Palisades Blvd. to Fountain Hills Blvd. 30 Saguaro Blvd. Shea Blvd. to Fountain Hills Blvd. 35 Shea Blvd. West town limit to 1200’ west of Technology Blvd. 50 Shea Blvd. 1200’ west of Technology Blvd. to east town limit. 45 Summer Hill Blvd. Eagle Mountain Pkwy. to gate north of Miramonte Way 30 Sunridge Drive Palisades Blvd. to Golden Eagle Blvd. 35 Private Streets Firerock Country Club Dr. Shea Boulevard to Rock Ridge Trail 20 SECTION 3. If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is for any reason held to be unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. ORDINANCE 20-15 PAGE 3 SECTION 4. The Mayor, the Town Manager, the Town Clerk and the Town Attorney are hereby authorized and directed to execute all documents and take all steps necessary to carry out the purpose and intent of this Ordinance. PASSED AND ADOPTED by the Mayor and Council of the Town of Fountain Hills, Arizona, this 24th day of August, 2020. FOR THE TOWN OF FOUNTAIN HILLS: ATTESTED TO: Ginny Dickey, Mayor Elizabeth A. Burke, Town Clerk REVIEWED BY: APPROVED AS TO FORM: Grady E. Miller, Town Manager Aaron D. Arnson, Town Attorney ITEM 8. I. TOWN OF FOUNTAIN HILLS STAFF REPORT    Meeting Date: 08/24/2020 Meeting Type: Town Council Special Meeting Agenda Type: Regular Agenda Submitting Department: Public Works Prepared by: Justin Weldy, Public Works Director Staff Contact Information: Justin Weldy, Public Works Director Request to Town Council Special Meeting (Agenda Language):  CONSIDERATION OF approving a Safety Corridor Program and doubling of fines for speeding and other traffic offenses within the Safety Corridors. Staff Summary (Background) At the Town Council meeting on June 16, 2020, staff presented several traffic-related improvements recommended by the Pedestrian and Traffic Safety Committee. At the Town Council meeting, staff was directed to return to the August 24th Town Council meeting so the Council could take formal action on implementing a Safety Corridor Program for Fountain Hills. The primary cause of automobile accidents and collisions is driver behavior (in the form of speeding, aggressive driving, impairment and distracted driving). Due to a number of collisions and near-traffic accidents in town, the Pedestrian and Traffic Safety Committee believes that Safety Corridors should be implemented and later evaluated for the effectiveness in reducing collisions and improving safety. Safety Corridors are special segments of roadway that have been identified by both engineering and data analysis to be either high pedestrian/vehicle or vehicle/vehicle conflict zones. The intent of the safety corridor is to educate and inform drivers, reduce traffic speeds and discourage unsafe driving behavior. The Safety Corridor proposal will have enforcement signs advising drivers when they enter and leave the Safety Corridor zones. Safety Corridors have been utilized in municipalities across the country, and even ADOT, as an effective tool in improving traffic safety and reducing traffic accidents and traffic-related fatalities. Along with increased enforcement by the Maricopa County Sheriff's Office and a doubling of fines within the safety corridors, the Traffic and Pedestrian Safety Committee and staff believe that Safety Corridors will result in improved safety for our community. Attached is a map showing the proposed Safety Corridor locations and where the signs will be placed.  Related Ordinance, Policy or Guiding Principle Section Article 12 of the Town code, section 12-2-2, Traffic control devices: speed limits and 12-2-14: Penalties. Risk Analysis N/A Recommendation(s) by Board(s) or Commission(s) N/A Staff Recommendation(s) Approval of the proposed Safety Corridors and double fines for traffic offenses in Safety Corridors. SUGGESTED MOTION MOVE to approve the adoption of Safety Corridors. Attachments Location Map  Form Review Inbox Reviewed By Date Public Works Director (Originator)Justin Weldy 08/13/2020 11:45 AM Finance Director David Pock 08/13/2020 11:47 AM Town Attorney Aaron D. Arnson 08/14/2020 09:43 AM Town Manager Grady E. Miller 08/14/2020 10:00 AM Form Started By: Justin Weldy Started On: 08/07/2020 10:06 AM Final Approval Date: 08/14/2020  LINE BEE HWY PA L I S A D E S BL V D SHEA BLVD H I L L S FOU N T A I N SAGUARO BLV D SAG U A R O BLVD BLV D BLV D G O L D E N E A G L E B L V D SALT RIVER PIMA - MARICOPA INDIAN COMMUNITY FO R T M c D O W E L L Y A V A P A I N A T I O N E L L A G O B L V D PAL I S A D E S Town of Fountain Hills All that is Ari z o na FO U N TAIN HIL L S TOWN OF INC. 1989 SAFETY CORRIDOR LOCATIONS 4-mile safety corridor from Shea Blvd to Fountain Hills Blvd SAGUARO BLVD 0.4-mile safety corridor from El Lago Blvd to Palisades Blvd FOUNTAIN HILLS BLVD 1.4-mile safety corridor from Golden Eagle Blvd to Saguaro Blvd PALISADES BLVD