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Home My WebLink About110616RSPLPREVISED: 6/13/11 NOTICE OF THE EXECUTIVE, REGULAR, AND SPECIAL SESSIONS OF THE FOUNTAIN HILLS TOWN COUNCIL TIME: (i) 5:30 P.M. – EXECUTIVE SESSION (Executive Session will be held in the Fountain Conference Room - 2nd floor) (ii) 6:30 P.M. – REGULAR SESSION (ii) SPECIAL SESSION to convene after the adjournment of the Regular Session. WHEN: THURSDAY, JUNE 16, 2011 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 Commissions or Boards 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. PROCEDURE FOR ADDRESSING THE COUNCIL Anyone wishing to speak before the Council must fill out a speaker’s card and submit it to the Town Clerk prior to Council discussion of that Agenda item. Speaker Cards are located in the Council Chamber Lobby and near the Clerk’s position on the dais. Speakers will be called in the order in which the speaker cards were received either by the Clerk or the Mayor. At that time, speakers should stand and approach the podium. Speakers are asked to state their name prior to commenting and to direct their c omments to the Presiding Officer and not to individual Councilmembers. Speakers’ statements should not be repetitive. If a speaker chooses not to speak when called, the speaker will be deemed to have waived his or her opportunity to speak on the matter. Speakers may not (i) reserve a portion of their time for a later time or (ii) transfer any portion of their time to another speaker. If there is a Public Hearing, please submit the speaker card to speak to that issue during the Public Hearing. Individual speakers will be allowed three contiguous minutes to address the Council. Time limits may be waived by (i) discretion of the Town Manager upon request by the speaker not less than 24 hours prior to a Meeting, (ii) consensus of the Council at Me eting or (iii) the Mayor either prior to or during a Meeting. Please be respectful when making your comments. If you do not comply with these rules, you will be asked to leave. Mayor Jay T. Schlum Councilmember Dennis Brown Councilmember Tait D. Elkie Vice Mayor Dennis Contino Councilmember Cassie Hansen Councilmember Ginny Dickey Councilmember Henry Leger Z:\Council Packets\2011\R6-16-11\110616A.docx Last printed 6/13/2011 1:17 PM Page 2 of 5 EXECUTIVE SESSION AGENDA CALL TO ORDER – Mayor Jay T. Schlum 1.) ROLL CALL AND VOTE TO GO INTO EXECUTIVE SESSION: Pursuant to §38- 431.03(A)(4), discussion or consultation with the attorneys of the public body in order to consider its position and instruct its attorneys regarding the public body’s position regarding contracts that are the subject of negotiations, in pending or contemplated litigation or in settlement discussions conducted in order to avoid or resolve litigation (specifically, relating to medical marijuana dispensary zoning verification). 2.) ADJOURNMENT. REGULAR SESSION AGENDA CALL TO ORDER AND PLEDGE OF ALLEGIANCE – Mayor Jay T. Schlum INVOCATION – Pastor Tom Daly, Trinity Lutheran Church ROLL CALL – Mayor Jay T. Schlum MAYOR’S REPORT i) The Mayor will read a PROCLAMATION congratulating the City of Scottsdale on its 60th Anniversary. SCHEDULED PUBLIC APPEARANCES/PRESENTATIONS i) PRESENTATION by the Maricopa County Sheriff’s Office regarding “Rock Burglar” capture ii) PRESENTATION by Mayor Schlum of the Town’s Appreciation Certificates to the MCSO team for a job very well done. iii) UPDATE on the Maricopa County Sheriff’s Office plan for enhanced block watch activities CALL TO THE PUBLIC Pursuant to A.R.S. §38-431-01(G), 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. CONSENT AGENDA 1. CONSIDERATION of approving the TOWN COUNCIL MEETING MINUTES from May 10, 19, and 23, 2011. 2. CONSIDERATION of RESOLUTION 2011-24, an Intergovernmental Agreement (JPA11- 063I) with the Arizona Department of Transportation, for the construction of Pedestrian Countdown Timers on various existing traffic signals. ($10,000; 100% HSIP funding for materials.) Z:\Council Packets\2011\R6-16-11\110616A.docx Last printed 6/13/2011 1:17 PM Page 3 of 5 3. CONSIDERATION of RESOLUTION 2011-23, an Intergovernmental Agreement (JPA11- 062I) with the Arizona Department of Transportation, for the construction of Guardrail Impact Attenuators on Shea Boulevard and Palisades Boulevard ($46,800; 100% HSIP funding for materials) 4. CONSIDERATION of RESOLUTION 2011-28, approving an amendment to the Intergovernmental Agreement with the Regional Public Transportation Authority relating to the on- demand shared ride transportation services for Fiscal Year 2011. 5. CONSIDERATION of a SPECIAL EVENT LIQUOR LICENSE APPLICATION submitted by Jerold Lane Miles representing Fountain Hills and Lower Verde Valley Museum and Historical Society, for the purpose of a fundraising event (Annual Historical Society fund raising dinner). Event to be held at Fountain Hills Community Center, located at 13001 N. La Montana Drive, Fountain Hills, AZ, scheduled to be held on August 27, 2011 , from 5:00 p.m. to 8:00 p.m. 6. CONSIDERATION of a SPECIAL EVENT LIQUOR LICENSE APPLICATION submitted by Jerold Lane Miles representing Fountain Hills and Lower Verde Valley Museum and Historical Society, for the purpose of a fundraising event (Historical Society dinner meeting). Event to be held at Fountain Hills Community Center, located at 13001 N. La Montana Drive, Fountain Hills, AZ, scheduled to be held on September 21, 2011, from 5:00 p.m. to 8:00 p.m. 7. CONSIDERATION of a SPECIAL EVENT LIQUOR LICENSE APPLICATION submitted by Jerold Lane Miles representing Fountain Hills and Lower Verde Valley Museum and Historical Society, for the purpose of a fundraising event (Historical Society dinner meeting). Event to be held at Fountain Hills Community Center, located at 13001 N. La Montana Drive, Fountain Hills, AZ, scheduled to be held on November 16, 2011, from 5:00 p.m. to 8:00 p.m. 8. CONSIDERATION of a SPECIAL EVENT LIQUOR LICENSE APPLICATION submitted by Jerold Lane Miles representing Fountain Hills and Lower Verde Valley Museum and Historical Society, for the purpose of a fundraising event (Historical Society dinner meeting). Event to be held at Fountain Hills Community Center, located at 13001 N. La Montana Drive, Fountain Hills, AZ, scheduled to be held on January 18, 2012 , from 5:00 p.m. to 8:00 p.m. 9. CONSIDERATION of a SPECIAL EVENT LIQUOR LICENSE APPLICATION submitted by Jerold Lane Miles representing Fountain Hills and Lower Verde Valley Museum and Historical Society, for the purpose of a fundraising event (Annual Hall of Fame Induction Dinner). Event to be held at Fountain Hills Community Center, located at 13001 N. La Montana Drive, Fountain Hills, AZ, scheduled to be held on March 21, 2012 , from 6:00 p.m. to 10:00 p.m. 10. CONSIDERATION of a SPECIAL EVENT LIQUOR LICENSE APPLICATION submitted by Jerold Lane Miles representing Fountain Hills and Lower Verde Valley Museum and Historical Society, for the purpose of a fundraising event (Historical Society dinner meeting). Event to be held at Fountain Hills Community Center, located at 13001 N. La Montana Drive, Fountain Hills, AZ, scheduled to be held on May 16, 2012, from 5:00 p.m. to 8:00 p.m. Z:\Council Packets\2011\R6-16-11\110616A.docx Last printed 6/13/2011 1:17 PM Page 4 of 5 REGULAR AGENDA 11. CONSIDERATION of the Public Art Committee’s request for PERMANENT PLACEMENT of the bronze sculpture, titled “Power of Thought”, to remain in the center of the courtyard area. 12. CONSIDERATION of the Public Art Committee’s request to accept a DONATED BRONZE SCULPTURE titled “Duck Parade”, for placement in the Community Center. 13. PUBLIC HEARING of a SPECIAL USE PERMIT for AT&T Wireless Communications, to allow the reconstruction of a 43’6” church tower to a 53’6” tall tower in order to enclose cellular antennas at 13001 N. Fountain Hills Blvd, located in the R-4 zoning district. Case # SU2011-01 14. CONSIDERATION of a SPECIAL USE PERMIT for AT&T Wireless Communications, to allow the reconstruction of a 43’6” church tower to a 53’6” tall tower in order to enclose cellular antennas at 13001 N. Fountain Hills Blvd, located in the R-4 zoning district. Case # SU2011-01 15. CONSIDERATION of ORDINANCE 11-09, amending the Town of Fountain Hills Town Code, Chapter 5, Municipal Court, by creating a new Article 5-8, Administrative Costs, related to charging administrative costs associated with certain violations. 16. CONSIDERATION of the PURCHASE AGREEMENT with Berge Ford (State Contract Vendor) for a 2011 F-150 Ford truck, in the amount of $ 28,929.10 for use by the Fire Chief. 17. CONSIDERATION of RESOLUTION 2011-25, renewing an Intergovernmental Agreement between the Maricopa County Library District and the Town of Fountain Hills for Library Services for five years commencing FY11-12. 18. PUBLIC HEARING regarding the tax levy and RESOLUTION 2011-20, adopting the Tentative Budget as the 2011-12 Fiscal Year budget for the Town of Fountain Hills. 19. COUNCIL DISCUSSION/DIRECTION to the Town Manager. Items listed below are related only to the propriety of (i) placing such items on a future agenda for action or (ii) directing staff to conduct further research and report back to the Council: A. NONE. 20. SUMMARY of Council requests and REPORT ON RECENT ACTIVITIES by the Town Manager. 21. ADJOURNMENT. SPECIAL SESSION AGENDA CALL TO ORDER AND ROLL CALL – Mayor Jay T. Schlum 1. CONSIDERATION of RESOLUTION 2011-20, adopting the Tentative Budget as the 2011-12 Fiscal Year budget for the Town of Fountain Hills. 2. CONSIDERATION of approving the CONSTRUCTION SERVICES AGREEMENT between the Town of Fountain Hills and Barbagallo Electric, LLC for the installation of diesel fueled standby generators at Fire Stations No. 1 and No. 2 in the amount of $21,890. Z:\Council Packets\2011\R6-16-11\110616A.docx Last printed 6/13/2011 1:17 PM Page 5 of 5 3. ADJOURNMENT. DATED this 13th day of June 2011. Bevelyn J. Bender, Town Clerk The Town of Fountain Hills endeavors to make all public meetings accessible to persons with disabilities. Please call 480 -816-5100 (voice) or 1-800-367-8939 (TDD) 48 hours prior to the meeting to request a reasonable accommodation to participate in this 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. Fountain Hills Burglar Investigation Fountain Hills Burglaries •Beginning in 2007 a series of burglaries began in the town of Fountain Hills involving residential homes. •The homes were always unoccupied with the homeowners either away for the day or on vacation. •Though equipped with alarm systems the homes were often left without the alarm being set. Fountain Hills Burglaries •The homes were often marked in such a way that the suspect would be able to tell if the homeowner had returned prior to the burglary. •The method of entry into the home, Items stolen and the trace evidence left at the scene by the suspect were always similar. Fountain Hills Burglaries •The Suspect in these burglaries would not take from the home any item that was easily traceable by Law Enforcement which made his Identification or Apprehension difficult. •A Computer Analysis of the open burglary cases however did reveal a pattern to the suspects behavior, based on his past reported behavior. Fountain Hills Burglaries •Using the information gathered by the Computer Analysis a team of Detectives was formed to Identify and Apprehend the suspect. •The team of Detectives took a more proactive approach to the situation, engaging in aggressive crime scene processing and enhanced surveillance operations. Fountain Hills Burglaries •On the night of May 15, 2011 a surveillance operation was conducted by that team of Detectives. •A search of the Town by the Detectives revealed a list of homes which matched the profile of the homes where the burglar preferred to strike. Fountain Hills Burglaries •That list of homes was narrowed by the Detective Sergeant and Case Agent for the investigation to three possible homes. •Detectives were assigned to covertly watch those chosen homes, from static locations nearby. •A K-9 Deputy was staged nearby while additional Non-Uniformed Deputies were used to patrol the area on Bicycles. Fountain Hills Burglaries •During the course of that Surveillance Operation, a citizen called into the Sheriff’s Office 9-1-1 Call Center to report a suspicious man who appeared to be hiding next door. •Deputies who had been staged on that street responded to the home and found a suspect hiding in the front yard. •That Suspect was found to be in possession of tools which were consistent with those used in the series of burglaries being investigated. Fountain Hills Burglaries •The suspect identified as Robert J. Neese was transported to the police station for processing. Robert Neese •Once arrested a Court Order was requested and signed by a judge which allowed Detectives to collect a DNA sample from Mr. Neese. •Mr. Neese was then booked into the 4th Avenue Jail by Detectives for his possession of Burglary Tools. Robert Neese •Upon his release from Jail Detectives began an active surveillance of Mr. Neese. •A test of the DNA sample collected at his arrest showed that Neese was in fact responsible for many more burglaries then first suspected. •It was also learned that Neese was known to Law Enforcement by a much different name: The Rock Burglar!!! The Rock Burglar!!! •The Rock Burglar was attributed to committing nearly (325)Burglaries beginning in 1993 spanning (18)years, these crimes involve (3)different Police Jurisdictions. •The Property Loss by the Victim's of his burglaries is estimated at well over $10,000,000.00 Dollars. The Rock Burglar!!! •Robert Neese has been scientifically linked to both the Rock Burglar Burglaries as well as the series of Burglaries here in Fountain Hills. •Robert Neese is currently in Jail awaiting trial on these charges.. Redacted Redacted Redacted Redacted Redacted Redacted Re d a c t e d Re d a c t e d Re d a c t e d Re d a c t e d Redacted Redacted Redacted Redacted Redacted Redacted Redacted Redacted Redacted Redacted Redacted Redacted Redacted Redacted Redacted Redacted Redacted Redacted Redacted Redacted Redacted 1519057.1 RESOLUTION NO. 2011-20 A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, ADOPTING THE TENTATIVE BUDGET AS THE 2011-2012 FISCAL YEAR BUDGET FOR THE TOWN OF FOUNTAIN HILLS. WHEREAS, in accordance with the provisions of Title 42, Chapter 17, Articles 1-5, Arizona Revised Statutes, the Mayor and Council of the Town of Fountain Hills (the “Town Council”) did, on May 25, 2011, make an estimate of the different amounts required to meet the public expenditures/expenses for the ensuing year, also an estimate of revenues from sources other than direct taxation, and the amount to be raised by taxation upon real and personal property of the Town of Fountain Hills, Arizona; and WHEREAS, in accordance with said chapter of said title, and following due public notice, the Town Council met on May 25, 2011, at which meeting any taxpayer was privileged to appear and be heard in favor of or against any of the proposed expenditures/expenses or tax levies; and WHEREAS, publication has been duly made as required by law, of said estimates together with a notice that the Town Council would meet on June 16, 2011, at the Fountain Hills Town Council Chambers for the purpose of hearing taxpayers and with respect to said estimates or any of the proposed expenditures/expenses or tax levies; and WHEREAS, it appears that the sums to be raised by taxation, as specified therein, do not in the aggregate exceed that amount as computed in ARIZ. REV. STAT. § 42-17051(A). NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS as follows: SECTION 1. The statements and schedules attached hereto as Exhibit A and incorporated herein by reference, are hereby adopted as the budget of the Town of Fountain Hills, Arizona, for the fiscal year July 1, 2011 through June 30, 2012. PASSED AND ADOPTED by the Mayor and Council of the Town of Fountain Hills, June 16, 2011. FOR THE TOWN OF FOUNTAIN HILLS: ATTESTED TO: Jay T. Schlum, Mayor Bevelyn J. Bender, Town Clerk REVIEWED BY: APPROVED AS TO FORM: Richard L. Davis, Town Manager Andrew J. McGuire, Town Attorney 1519057.1 EXHIBIT A TO RESOLUTION NO. 2011-20 [Budget Statements and Schedules] See following pages. 1518996.1 CONSTRUCTION SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND BARBAGALLO ELECTRIC, LLC THIS CONSTRUCTION SERVICES AGREEMENT (this “Agreement”) is entered into as of June 20, 2011 (the “Effective Date”), between the Town of Fountain Hills, an Arizona municipal corporation (the “Town”) and Barbagallo Electric, LLC, an Arizona limited liability company (the “Contractor”). RECITALS A. Pursuant to Town Code Section 3-3-5(D), the Town received written quotations for the installation of fire station emergency generators at the Fountain Hills Fire Station No. 1 and No. 2. B. The Contractor submitted a Proposal (the “Proposal”) in response to the request for written quotations, attached hereto as Exhibit A and incorporated herein by reference, and the Town and the Contractor desire to enter into this Agreement for the installation of fire station emergency generators at the Fountain Hills Fire Stations No. 1 and No. 2 as more particularly set forth in Section 1 below (the “Services”). AGREEMENT NOW, THEREFORE, in consideration of the foregoing 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 is hereby acknowledged, the Town and the Contractor hereby agree as follows: 1. Project Description. Contractor shall do and perform, or cause to be done and performed in accordance with this Agreement, the Services necessary for the project entitled “Fire Station No. 1 and No. 2 Emergency Generator Installation” (the “Project”) in accordance with and as more fully described in the plans prepared by C R Engineers, Inc. dated March 7, 2011 (the “Scope”) attached hereto as Exhibit B and incorporated herein by reference. Performance of the Services according to the Scope is referred to herein as the “Work.” The Work must be performed and completed in accordance with all requirements of law and no Work shall be undertaken until Contractor has been issued all required permits. 1.1 Reference Standards. Contractor shall perform the Work required in conformance with (a) the “Uniform Standard Specifications for Public Works Construction,” current edition as of the date of award of this Agreement and the Uniform Standard Details for Public Works Construction,” current edition as of the date of award of this Agreement, each of which are sponsored and distributed by the Maricopa Association of Governments (“MAG”) (collectively, the “MAG Specifications”) (b) any amendments, technical notes or supplements adopted by the Town (the “Town Specifications”) and the 2005 National Electrical Code, each of 1518996.1 2 which are incorporated herein by reference. In the event of a conflict between the MAG Specifications and the Town Specifications, the Town Specifications shall prevail. 1.2 Traffic Control. Traffic control affected by the Work required pursuant to this Agreement shall be regulated in accordance with the then-current version of the City of Phoenix-Traffic Barricade Manual (the “Barricade Manual”) which is incorporated herein by reference. In the event of a conflict between the Barricade Manual and the U.S. Department of Transportation Manual on Uniform Traffic Control Devices, the Barricade Manual shall prevail. 2. Contract Time. The Work shall be completed by 45 days from the date the Town issues a Notice to Proceed (the “Contract Time”). It is expressly understood that should Contractor fail to complete the Work covered hereby within the Contract Time, the Contractor agrees to pay and shall pay to the Town upon request therefore for each calendar day of delay beyond Contract Time, as liquidated damages, and not as a penalty, the amount per day as set forth in MAG Specifications for each calendar day of delay. 3. Compensation; Payment. The Town shall pay Contractor a price not to exceed $21,890.00 for the Work, in accordance with the Contractor’s Proposal (the “Contract Price”), attached hereto as Exhibit A. No adjustment will be made to the Contract Price except by approved Change Order. Upon receipt of written notice that the Work is ready for final inspection and acceptance, the Town’s representative shall promptly make a final inspection and, upon the Town’s acceptance of the Work, the Town’s representative shall promptly approve a certificate for payment stating that upon knowledge, information and belief and on the basis of observations and inspections, the Work has been completed in accordance with the terms and conditions of the Agreement and that the entire balance found to be due to the Contractor is due and payable. Neither the final payment nor the retained percentage determined under ARIZ. REV. STAT. § 34-221 shall become due until the Contractor submits to the Town all required data establishing payment or satisfaction of all Contractor’s obligations. 4. Inspection, Safety and Compliance. 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 Agreement. Insofar as possible the Contractor, in carrying out its work, 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 this Agreement including, without limitation, the Scope documents listed on Exhibit B, 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 this Agreement 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 Agreement 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: (i) employees or others on the Project, (ii) the Work and materials and (iii) 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 1518996.1 3 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 city laws, codes, ordinances, regulations (including NPDES and air pollution) and orders of public authorities bearing on performance of the Work. 5. Changes in the Work. The Town may, without invalidating this Agreement, order changes in the Work consisting of additions, deletions or other revisions to the Agreement and the Contract Price and the Contract Time shall be adjusted as agreed upon by the parties. The Contract Price and/or the Contract Time may only be changed by the Town’s written directive or approval authorizing said change, and said changes shall be performed under the applicable conditions of the Contract. 6. Documents. All documents prepared and submitted to the Town pursuant to this Agreement shall be the property of the Town. 7. Contractor Personnel. 7.1 Project Manager. Contractor shall employ a competent Project Manager and necessary assistants who shall be in attendance at the Project site during the progress of the Work. The Project Manager shall represent and be the agent of the Contractor and communications given to the Project Manager shall be as binding as if given to the Contractor. 7.2 Staffing. Contractor shall provide adequate, experienced personnel, capable of and devoted to the successful completion of the Work to be performed under this Agreement. Contractor agrees to assign specific individuals to key positions. Contractor agrees that, upon commencement of the Work to be performed pursuant to 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 Work for a continuous period exceeding 30 calendar days, or are expected to devote substantially less effort to the Work than initially anticipated, Contractor shall immediately notify the Town of same and shall, subject to the concurrence of the Town, replace such personnel with personnel of substantially equal ability and qualifications. 8. Progress Schedule. Contractor, immediately after entering into this Agreement, shall provide the Town with any requested scheduling information and a proposed progress schedule for performance of the Work in a form acceptable to the Town providing for commencement and completion of the Work within the Contract Time. Contractor shall prosecute the Work in a prompt and diligent manner and without hindering or delaying the Work of other contractors of subcontractors on the Project. The progress schedule shall be supplemented thereafter upon request. Work shall not commence upon this Project until a written Notice to Proceed has been issued to the Contractor by the Town. The Notice to Proceed will be considered issued on the date it is sent to the Contractor by certified mail, facsimile or delivered to the Contractor in person. 9. Drawings and Samples. Contractor shall furnish, within three working days following request therefore by the Town, detailed drawings of the Work and samples of materials 1518996.1 4 required for the performance or coordination of the Work. Drawings and samples shall comply with the Scope or shall be rejected. 10. Errors in the Plans. The details and specifications are presumed to be correct, but Contractor shall be required to check carefully all dimensions and verify all vertical and horizontal controls using the nearest benchmark before beginning the Work. If any errors or omissions are discovered, the Town’s representative shall be so notified in writing. The Town’s representative shall immediately notify the Town’s Engineer, who will then make such corrections, and interpretations as may be deemed necessary for fulfilling the intent of the plans and specifications and shall issue appropriate corrections. Any adjustments made by Contractor without prior review and acceptance shall be at its own risk. The settlement of any complication or disputed expenses arising from an adjustment made by Contractor shall be paid by Contractor at its own expense. 11. Inspection; Acceptance. All Work shall be subject to inspection and acceptance by the Town at reasonable times during Contractor’s performance. The Contractor shall provide and maintain a self-inspection system that is acceptable to the Town. 12. Licenses, Permits; Fees. Contractor shall secure and pay for all permits, governmental fees, licenses and inspections necessary for the proper execution and completion of Work which are customarily secured after execution of the Agreement and which are legally required. 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. The Town has no obligation to provide Contractor, its employees or subcontractors any business registrations or licenses required to perform the specific services set forth in this Agreement. 13. Labor; Materials. The Town has no obligation to provide tools, equipment or material to Contractor. Contractor shall provide and pay and shall insure under the requisite laws and regulations all labor, materials, equipment, tools, construction equipment, machinery, water, heat, utilities, transportation, and other facilities and services necessary for the proper execution and completion of the Work, whether temporary or permanent and whether incorporated or to be incorporated in the Work. 14. Warranty. Contractor warrants to the Town that all materials and equipment furnished under this Contract will be new, and that all Work will be of good quality, free from faults and defects. Contractor further guarantees all Work and materials for a period of one year from the date of acceptance of the Project. Should any portion of the Work need replacement or repair within one year from the date of completion due to construction methods or material failure, the Contractor shall replace such Work at no cost to the Town. If Contractor fails within reasonable time to replace or repair any portion of the Work deemed to be needed, the Town may cause such Work to be done and Contractor agrees to pay all costs incurred therein. All Work not conforming to the Scope documents, including substitutions not properly approved and authorized, may be considered defective. If required by the Town, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. 15. Performance Warranty. Contractor warrants that the services rendered in performance of the Work will conform to the requirements of this Agreement and to the highest professional standards in the field. 1518996.1 5 16. Taxes. Contractor shall pay all licenses, sales, consumer, use and other similar taxes for the Work or portions thereof provided by the Contractor which are legally enacted at the time on the Effective Date of this Agreement, whether effective or subsequently applicable due to acts of jurisdictions or bodies other than the Town. 17. Indemnification. To the fullest extent permitted by law, the Contractor 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, in connection with the work or services of the Contractor, 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. 18. Insurance. 18.1 General. A. 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 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 Contractor. 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 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 Agreement. C. Additional Insured. All insurance coverage and self-insured retention or deductible portions, 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. 1518996.1 6 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. Contractor’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. 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 Contractor. Contractor shall arrange to have such subrogation waivers incorporated into each policy via formal written endorsement thereto. G. 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. H. Use of Subcontractors. If any work under this Agreement is subcontracted in any way, Contractor 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 Contractor. Contractor shall be responsible for executing any agreements with its subcontractors and obtaining certificates of insurance verifying the insurance requirements. I. Evidence of Insurance. Prior to commencing any work or services under this Agreement, 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 Agreement, 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 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. In the event any insurance policy required by this Agreement is written on a “claims made” basis, coverage shall extend for two years past completion of the Work and the Town’s acceptance of the Contractor’s Work or services and as evidenced by annual certificates of insurance. If any of the policies required by this Agreement expire during the life of this Agreement, 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 Agreement shall be identified by referencing this Agreement. A $25.00 administrative fee shall be assessed for all certificates or 1518996.1 7 declarations received without a reference to this Agreement. Additionally, certificates of insurance and declaration page(s) of the insurance policies submitted without referencing this Agreement 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) Contractor’s insurance shall be primary insurance as respects performance of the 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 Contractor under this Agreement. (4) A 30-day advance notice cancellation provision. If ACORD certificate of insurance form 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. 18.2 Required Insurance Coverage. A. 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 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 1518996.1 8 requirements of this subsection, such Excess insurance shall be “follow form” equal or broader in coverage scope than underlying insurance. B. 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 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 Contractor engages in any professional services or work adjunct or residual to performing the work under this Agreement, the Contractor shall maintain Professional Liability insurance covering negligent errors and omissions arising out of the Work 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. In the event the Professional Liability insurance policy is written on a “claims made” basis, coverage shall extend for two years past completion and acceptance of the Work, and the Contractor shall be required to submit certificates of insurance and a copy of the declaration page(s) of the insurance policies evidencing proper coverage is in effect as required above. D. 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 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. 18.3 Cancellation and Expiration Notice. Insurance required herein shall not expire, be canceled, or materially change without 30 days’ prior written notice to the Town. 19. Contract Bonds Required. [INTENTIONALLY OMITTED] 20. Applicable Law; Venue. In the performance of this Agreement, Contractor shall abide by and conform to any and all laws of the United States, the State of Arizona and the Town of Fountain Hills, including, but not limited to, federal and state executive orders providing for equal employment and procurement opportunities, the Federal Occupational Safety and Health Act and any other federal or state laws applicable to this Agreement. 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 the State of Arizona. 1518996.1 9 21. Termination; Cancellation. 21.1 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 Agreement, 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 Agreement. B. Substitute Performance. Upon termination of this Agreement by the Town, the Town shall be entitled to furnish or have furnished the Work to be performed hereunder by the Contractor by whatever method the Town may deem expedient. Such substitute performance shall not constitute or be construed as a waiver by the Town of any action, claim or demand the Town may have against Contractor by reason of injury or damage resulting to the Town because of Contractor’s failure of performance hereunder. Contractor shall pay to the Town a sum equal to the Town’s total cost of completing such Work, and a sum for reasonable attorneys’ fees and litigation expenses for procuring substitute performance for the Work. In no event shall any delay in performance hereunder by Contractor be excused unless, and then to the extent only, such delay is excused by the Town in writing. 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 working 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 Agreement by giving three working 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. 21.2 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 1518996.1 10 termination. The Contractor shall not be entitled to be paid any amount as profit for unperformed services or consideration for the termination of convenience by the Town. 21.3 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 the Agreement or any extension of the Agreement is in effect, an employee of any other party to the Agreement in any capacity or a consultant to any other party of the Agreement with respect to the subject matter of the Agreement. 21.4 Gratuities. The Town may, by written notice to the Contractor, 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 Contractor or any agent or representative of the Contractor to any officer, agent or employee of the Town for the purpose of securing this Agreement. In the event this Agreement is cancelled by the Town pursuant to this provision, the Town shall be entitled, in addition to any other rights and remedies, to recover or withhold from the Contractor an amount equal to 150% of the gratuity. 22. 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 Contractor fully informed as to the availability of funds for the 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 Contractor shall be relieved of any subsequent obligation under this Agreement. 23. Miscellaneous. 23.1 Independent Contractor. The Contractor acknowledges and agrees that the Work provided under this Agreement is 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 Work provided under this Agreement so long as Contractor meets the requirements of its agreed Scope as set forth in Section 1 above. 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. 23.2 Laws and Regulations. The Contractor shall keep fully informed and shall at all times during the performance of its duties under this Agreement ensure that it and any person 1518996.1 11 for whom the Contractor is responsible remains in compliance with all rules, regulations, ordinances, statutes or laws affecting the Work, including 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 (“OSHA”) standards. 23.3 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 Contractor. 23.4 Provisions Required by Law. Each and every provision of law and any clause required by law to be in the 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, the Agreement will promptly be physically amended to make such insertion or correction. 23.5 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 the Agreement which may remain in effect without the invalid provision or application. 23.6 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 the 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. 23.7 Assignment. No right or interest in this Agreement shall be assigned by Contractor without prior, written permission of the Town signed by the Town Manager and no delegation of any duty of Contractor shall be made 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 Agreement by Contractor. 23.8 Subcontracts. No subcontract shall be entered into by the Contractor with any other party to furnish any of the material or services specified herein without the prior written approval of the Town. The Contractor is responsible for performance under this Agreement whether or not subcontractors are used. The names of subcontractors submitted at the time of the submission of this Agreement to the Town shall be assumed to be the subcontractors which the Contractor shall use for Work required to be done under the Contract Documents. The Contractor shall make no substitution for any subcontractor, person, or entity previously selected if the Town makes a reasonable objection to such substitution. Contractor shall not contract with any subcontractor to whom the Town has made a reasonable objection. Contractor shall not be required to contract with anyone to whom it has made a reasonable objection. 1518996.1 12 23.9 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 Contractor 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. 23.10 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. 23.11 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. 23.12 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 Agreement. 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. 23.13 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, (C) given to a recognized and reputable overnight delivery service, to the address set forth below or (D) delivered by facsimile transmission to the number set forth below: If to the Town: Town of Fountain Hills 16705 East Avenue of the Fountains Fountain Hills, Arizona 85268 Facsimile: 480-837-3145 Attn: Richard L. Davis, Town Manager 1518996.1 13 With copy to: GUST ROSENFELD, P.L.C. One East Washington Street, Suite 1600 Phoenix, Arizona 85004-2553 Facsimile: (602) 254-4878 Attn: Andrew J. McGuire, Esq. If to Contractor: Barbagallo Electric, LLC 16605 East Palisades Boulevard, Suite 110 Fountain Hills, Arizona 85268 Facsimile: (480) 816-1125 Attn: Vincent Barbagallo 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, (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, or (D) when received by facsimile transmission during the normal business hours of the recipient. 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. 23.14 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 Agreement shall not be used or disclosed by it, its agents, officers, or employees, except as required to perform Contractor’s duties under this Agreement. 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 Agreement. 23.15 Records and Audit Rights. Contractor’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 Contractor and its subcontractors’ employees who perform any work or services pursuant to this Agreement to ensure that the Contractor and its subcontractors are complying with the warranty under subsection 23.16 below (all 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 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 Agreement and (B) evaluation of the Contractor’s and its subcontractors’ compliance with the Arizona employer sanctions laws referenced in subsection 23.16 below. To the extent necessary for the Town to audit Records as set forth in this subsection, Contractor and its subcontractors hereby waive any rights to keep such Records confidential. For the purpose of evaluating or verifying 1518996.1 14 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 Contractor pursuant to this Agreement. 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 subsection. 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 subsection by insertion of the requirements hereof in any subcontract pursuant to this Agreement. 23.16 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 subcontractor’s 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. 23.17 Scrutinized Business Operations. Pursuant to ARIZ. REV. STAT. §§ 35- 391.06 and 35-393.06, the Contractor certifies that it does not have scrutinized business operations in Sudan or Iran. For the purpose of this subsection the term “scrutinized business operations” shall have the meanings set forth in ARIZ. REV. STAT. § 35-391 or 35-393, as applicable. If the Town determines that the Contractor submitted a false certification, the Town may impose remedies as provided by law including terminating this Agreement. 23.18 Conflicting Terms. In the event of any inconsistency, conflict or ambiguity among the terms of the Agreement, the Scope of Work and the Proposal, the documents shall govern in the order listed herein. 23.19 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 at its sole discretion. [SIGNATURES ON FOLLOWING PAGE] 1518996.1 15 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first set forth above. “Town” “Contractor” TOWN OF FOUNTAIN HILLS, an Arizona BARBAGALLO ELECTRIC LLC, municipal corporation an Arizona limited liability company By: Richard L. Davis, Town Manager ATTEST: Name: Title: Bevelyn J. Bender, Town Clerk 1518996.1 16 (ACKNOWLEDGMENTS) STATE OF ARIZONA ) ) ss. COUNTY OF MARICOPA ) This instrument was acknowledged before me on , 2011, by Richard L. Davis, the Town Manager of the TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation, on behalf of the Town of Fountain Hills. Notary Public in and for the State of Arizona My Commission Expires: STATE OF ARIZONA ) ) ss. COUNTY OF MARICOPA ) This instrument was acknowledged before me on , 2011, by as of BARBAGALLO ELECTRIC, LLC, an Arizona limited liability company, on behalf of the company. Notary Public in and for the State of Arizona My Commission Expires: 1518996.1 EXHIBIT A TO CONSTRUCTION SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND BARBAGALLO ELECTRIC, LLC [Proposal] See following page. Authorized Signature Date Proposal Valid Until Proposal/Invoice 16605 E. Palisades #110/PMB 183 Fountain Hills, AZ 85268 Fax 480.816.1125 www.barbagalloelectric.com DATE -5/1/2011 To: Mike Stretch [Name] [Company Name] Fountain Hills Fire Station 1 and 2 [Street Address] Fountain Hills Arizona [City, ST ZIP Code] [Phone] FOR: FIRESTATIONS 1 AND 2 [Project or service description] Generators [P.O. #] 5/1/2011 DESCRIPTION AMOUNT Scope of Work – Generator installation. Barbagallo Electrical will provide all labor and material as needed as per plan to and transfer switch at fire station 1 and 2. Generators and transfer switches are Excavation, backfilling, concrete repair ,patching and two 6 inch housekeeping pads are Included in this bid. Reviewed all plans and walked both projects with Mike/Stretch, went over all changes. All electric feeders to be aluminum. Generator start up and Will be by others. Temporary generator was taken out by the scope of work. Labor and Material for this project is $19,900. If Excavation, backfilling, concrete repair patching and core boring is taken off of The bid will be $16,000 for labor and material. Permits and fees are not included Thank You For The Opportunity To Bid This Project Vince Barbagallo SUBTOTAL $19,900 SALES TAX %10% SALES TAX $1,990 TOTAL $21,890 Licenced Bonded & Insured THE PRICES, SPECIFICATIONS, AND CONDITIONS ARE SATISFACTORY AND HEREBY ACCEPTED. Barbagallo Electrical, LLC is authorized to complete all work as specified. Payment is due in full upon completion of the work listed, unless terms are otherwise specified in the proposal. Any requested additions or changes to the scope of work of this proposal that requires extra cost will require additional charges above and beyond those 1518996.1 EXHIBIT B TO CONSTRUCTION SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND BARBAGALLO ELECTRIC, LLC [Scope] See following pages. 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