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Home My WebLink About2-3-05 Agenda PacketREVISED NOTICE OF REGULAR AND EXECUTIVE SESSION OF THE FOUNTAIN HILLS TOWN COUNCIL Mayor Wally Nichols Vice Mayor Mike Archambault Councilman John Kavanagh Councilman Ed Kehe Councilman Keith McMahan Councilwoman Kathleen Nicola Councilman Jay Schlum WHEN: THURSDAY, FEBRUARY 3, 2005 TIME: 6:00 P.M. EXECUTIVE SESSION 6:30 P.M. REGULAR SESSION WHERE: TOWN HALL COUNCIL CHAMBERS, BUILDING B 16836 E. PALISADES BLVD., FOUNTAIN HILLS, AZ (Executive Session will be held in the Building A Teleconference Room) PROCEDURE FOR ADDRESSING THE COUNCIL . the . 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 comments to the Presiding Officer and not to individual Council Members. 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 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 Meeting 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. • CALL TO ORDER – Mayor Nichols Document in 2-3-05.obd Page 1 of 3 Last printed 2/2/2005 1:14 PM REVISED 1. VOTE TO GO INTO EXECUTIVE SESSION: Pursuant to A.R.S. §38-431-03.A.4, For discussion or consultation with the attorneys of the public body in order to consider its position and instruct its attorneys regarding the pubic body’s position regarding contracts that are in the subject of negotiations, in pending or contemplated litigation or in settlement discussions conducted in order to avoid or resolve litigation. (Specifically, legal advice regarding Ceser/DeGeorges v. Town of Fountain Hills litigation.) 2. RETURN TO REGULAR SESSION • CALL TO ORDER AND PLEDGE OF ALLEGIANCE -Mayor Nichols • INVOCATION -Susan Ducot, Baha’i Faith • ROLL CALL -Mayor Nichols • PRESENTATIONS -Mayor Nichols to transfer the Vice Mayor nameplate to Councilwoman Kathleen Nicola. 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 property noticed for discussion and legal action. At the conclusion of the call to the public, individual Council members 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. 5 min CONSENT AGENDA *1.) CONSIDERATION of approving the COUNCIL MEETING MINUTES of January 11 & 20, 2005 *2.) CONSIDERATION of approving the SPECIAL EVENT LIQUOR LICENSE APPLICATION for the American Legion Event scheduled for February 25 through 27, 2005. *3.) CONSIDERATION of approving a WINE FESTIVAL LICENSE/WINE FAIRE LICENSE submitted by Kokopelli Winery. The request is in conjunction with the Fine Art and Wine Affaire scheduled for March 25 through 27, 2005. *4.) CONSIDERATION of approving the SETTLEMENT of the Ceser/DeGeorges v. Town of Fountain Hills litigation. 10 min REGULAR AGENDA 5.) CONSIDERATION of approving an AGREEMENT with the Four Peaks and Noon Rotary groups for contributions towards the completion of the proposed Rotary Centennial Splash Park. 5 min 6.) CONSIDERATION of approving the purchase of Vortex SPLASH PARK EQUIPMENT from Miracle Playgrounds Inc, through the Mohave Educational Services Cooperative. 20min 7.) CONSIDERATION of approving a CONTRACT with IronMan North America for an IronMan event through town scheduled for Saturday, April 9, 2005. 5 min 8.) CONSIDERATION of approving a SPECIAL EVENT APPLICATION for Iron Man North America for an IronMan event through town scheduled for Saturday, April 9, 2005. 9.) CONSIDERATION of approving the CONTRACT with the WLB Group for the Avenue of Document in 2-3-05.obd Page 2 of 3 Last printed 2/2/2005 1:14 PM REVISED 20 min the Fountains enhancement project. 10.) COUNCIL ASSESSMENT AND REVIEW of the meeting to identify procedural strengths and weaknesses and discuss possible improvements for future meetings. 11.) COUNCIL DISCUSSION/DIRECTION to the Town Manager. a. 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: NONE 12.) SUMMARY OF COUNCIL REQUESTS by Town Manager. 7:35 p.m. 13.) ADJOURNMENT. DATED this 31ST day of January, 2005 Bevelyn J. Bender, Town Clerk The Town of Fountain Hills endeavors to make all public meetings accessible to persons with disabilities. Please call 837-2003 (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. Document in 2-3-05.obd Page 3 of 3 Last printed 2/2/2005 1:14 PM ____________________________ DRAFT Town of Fountain Hills Town Council Agenda Action Form Meeting Type: Regular Meeting Meeting Date: 7/1/04 Submitting Department: Administration Contact Person: Pickering Consent: Regular: Requesting Action: Report Only: Type of Document Needing Approval (Check all that apply): Public Hearing Resolution Ordinance Agreement Emergency Clause Special Event Permit Special Consideration Intergovernmental Agreement Acceptance Grant Submission Liquor/Bingo License Application Plat Special Event Permit Special/Temp Use Permit Other: draft minutes Education Public Fitness :Council Priority (Check Appropriate Areas) Library Services Public Safety Community Activities Economic Development Public Works Human Service Needs Parks & Recreation Town Elections Community Development Finance Regular Agenda Wording: CONSIDERATION of approving the COUNCIL MEETING MINUTES of January 11 & 20, 2005. Fiscal Impact: NoStaff Recommendation: Approve $ Purpose of Item and Background Information: Approve the draft minutes for archival purposes. List All Attachments as Follows: Draft minutes from 6/8/04 and 6/17/04. NoneType(s) of Presentation: Signatures of Submitting Staff: S:\Bevelyn J. Bender _____________________________________ Department Head Budget Review (if item not budgeted or exceeds budget amount) Town Manager/Designee Document in 2-3-05.obd Page 1 of 1 ____________________________ _____________________________________ ____________________________ Town of Fountain Hills Town Council Agenda Action Form Meeting Type: Regular Meeting Meeting Date: 2/3/05 Submitting Department: Public Works Contact Person: Tom Ward Consent: Regular: Requesting Action: Report Only: Type of Document Needing Approval (Check all that apply): Public Hearing Resolution Ordinance Agreement Emergency Clause Special Event Permit Special Consideration Intergovernmental Agreement Acceptance Grant Submission Liquor/Bingo License Application Plat Special Event Permit Special/Temp Use Permit Other: Education Public Fitness :Council Priority (Check Appropriate Areas) Library Services Public Safety Community Activities Economic Development Public Works Human Service Needs Parks & Recreation Town Elections Community Development Regular Agenda Wording: Consideration of a Special Event Liquor License submitted by the American Legion Post #58. The request is for a fundraiser scheduled for February 25-27, 2005 Staff Recommendation: Approve Fiscal Impact: No $ Purpose of Item and Background Information: To obtain Council approval for the special event liquor licenses. The applications meet the security requirements, complies with statutory and liquor license regulations, and received a favorable recommendation from the Sheriff's office based on background investigation. At the manager's request in an attempt to reduce paper, full applications will not be reproduced for the packets. The front pages will be included for representative purposes and the full applications are available for review in the clerk's office. List All Attachments as Follows: Ward memo; MCSO memo; application front page Type(s) of Presentation: Consent Agenda Signatures of Submitting Staff: Department Head Budget Review (if item not budgeted or exceeds budget amount) Town Manager / Designee Document in 2-3-05.obd TOWN OF FOUNTAIN HILLS PUBLIC WORKS DEPARTMENT MEMO TO: Honorable Mayor and Council DT: January 18, 2005 FR: Tom Ward, Director of Public Works RE: American Legion Special Event Liquor License The American Legion Post 58 is requesting Council approval for a special event liquor license permit for a fund raising event scheduled for February 25, 26 and 27, 2005. Hours of operation are 9:00 a.m. to 10:00 p.m. on February 25th and 26th and 10:00 a.m. to 10:00 p.m. on February 27th. The event will be held at the American Legion located at 16837 East Parkview Avenue. Although the special event liquor license is issued by the state, local approval by the Council is required. Public Works and the Maricopa County Sheriff’s office have reviewed the application and find it to be consistent with previous applications. There have not been any known alcohol violations to date that would prohibit granting of the permits. In addition, the American Legion will have up to six security guards during the event and will post two security guards at the entrance and the exit to prevent alcohol leaving the permit area. Based on incident-free past events, statutory compliance, and the fund-raising nature of the event that benefits the community, staff recommends approval. Document in 2-3-05.obd Document in 2-3-05.obd Document in 2-3-05.obd ____________________________ _____________________________________ ____________________________ Town of Fountain Hills Town Council Agenda Action Form Meeting Type: Regular Meeting Meeting Date: 2/3/05 Submitting Department: Public Works Contact Person: Tom Ward Consent: Regular: Requesting Action: Report Only: Type of Document Needing Approval (Check all that apply): Public Hearing Resolution Ordinance Agreement Emergency Clause Special Event Permit Special Consideration Intergovernmental Agreement Acceptance Grant Submission Liquor/Bingo License Application Plat Special Event Permit Special/Temp Use Permit Other: Education Public Fitness :Council Priority (Check Appropriate Areas) Library Services Public Safety Community Activities Economic Development Public Works Human Service Needs Parks & Recreation Town Elections Community Development Regular Agenda Wording: Consideration of approving a Wine Festival License/Wine Fair License submitted by Kokopelli Winery. The request is in conjunction with the Fine Art and Wine Affaire scheduled for March 25- 27, 2005. Staff Recommendation: Approve Fiscal Impact: No $ Purpose of Item and Background Information: To obtain Council approval for a Wine Festival License/Wine Fair License. The applications meet the security requirements, complies with statutory and liquor license regulations, and received a favorable recommendation from the Sheriff's office based on background investigation. At the manager's request in an attempt to reduce paper, full applications will not be reproduced for the packets. The front pages will be included for representative purposes and the full applications are available for review in the clerk's office. List All Attachments as Follows: Ward memo; MCSO memo; application front page Type(s) of Presentation: Consent Agenda Signatures of Submitting Staff: Department Head Budget Review (if item not budgeted or exceeds budget amount) Town Manager / Designee Document in 2-3-05.obd TOWN OF FOUNTAIN HILLS PUBLIC WORKS DEPARTMENT MEMO TO: Honorable Mayor and Council DT: January 21, 2005 FR: Tom Ward, Director of Public Works RE: Kokopelli Winery Wine Festival License/Wine Fair License Kokopelli Winery is requesting Council approval for a Wine Festival License/Wine Fair License in conjunction with the Fine Art and Wine Affaire scheduled for March 25, 26 and 27, 2005. Hours of operation are 10:00 a.m. to 6:00 p.m. Public Works and the Maricopa County Sheriff’s office have reviewed the application and find it to be consistent with previous applications. There have not been any known alcohol violations to date that would prohibit granting of the permits. Thunderbird Artists Corporation is sponsoring the event and they will have off-duty Sheriff’s deputies present during the event and will post one at each entrance to prevent alcohol leaving the permit area. Based on incident-free past events, statutory compliance, and the fund-raising nature of the event that benefits the community, staff recommends approval. Document in 2-3-05.obd Document in 2-3-05.obd Document in 2-3-05.obd EMAIL TEXT From: Bender, Bev Sent: Monday, January 31, 2005 4:08 PM To: Mayor & Town Council Cc: Department Directors; McGuire, Andrew; Rosetti, Danielle; Williams, Shaunna Subject: 2/3/05 Agenda Good afternoon Mayor and Council, At the request of the Town Attorney, a brief executive session has been scheduled prior to the beginning of the Council meeting on Thursday (2/3/05). The executive session will begin at 6 p.m. and will be held in the Teleconference Room located in Building A. E-SESSION topic: Pursuant to A.R.S. §38-431-03.A.4, For discussion or consultation with the attorneys of the public body in order to consider its position and instruct its attorneys regarding the pubic body's position regarding contracts that are in the subject of negotiations, in pending or contemplated litigation or in settlement discussions conducted in order to avoid or resolve litigation. (Specifically, legal advice regarding Ceser/DeGeorges v. Town of Fountain Hills litigation.) An additional consent item (#4) was also added to this agenda in conjunction with the scheduled executive session: CONSIDERATION of approving the SETTLEMENT of the Ceser/DeGeorges v. Town of Fountain Hills litigation. I've attached the revised agenda for Council's review. A "purple" revised agenda will be placed in each of your mailboxes on Wednesday afternoon. If you have any questions, please contact Tim. Bev Bender Town Clerk Town of Fountain Hills 16836 E. Palisades Blvd. Fountain Hills, AZ 85268 bbender@fh.az.gov 480-816-5115 Town of Fountain Hills Town Council Agenda Action Form Meeting Type: Regular Meeting Meeting Date: February 3, 2005 Submitting Department: Parks and Recreation Contact Person: Mark Mayer Consent: Regular:X Requesting Action: Report Only: Type of Document Needing Approval (Check all that apply): Public Hearing Resolution Ordinance Agreement Emergency Clause Special Event Permit Special Consideration Intergovernmental Agreement Acceptance Grant Submission Liquor/Bingo License Application Plat Special Event Permit Special/Temp Use Permit Other: Education Public Fitness :Council Priority (Check Appropriate Areas) Library Services Public Safety Community Activities Economic Development Public Works Human Service Needs Parks & Recreation Town Elections Community Development Regular Agenda Wording: Consideration of Approving an Agreement with the Four Peaks and Noon Rotary groups for contributions towards and the completion of the proposed splash park. Purpose of Item and Background Information: No $Staff Recommendation: Approve Fiscal Impact: Consideration of an agreement between the Town, and the Four Peaks Rotary and Noon Rotary to install the splash park equipment, and to complete the construction of the Rotary Centennial Splash Park. The two local Rotary groups have committed to a national campaign to commemorating the 100 year anniversary of the establishment of the Rotary organization in February of 2005. Under the agreement being considered, the two Rotary groups would contribute additional funds to support the project, and act as the general contractor. In addition, through the efforts of various club members that are involved in the building trades, and through additional local donations of labor and/or materials, the Rotary groups would complete the installation of the various features and the others elements of the park. Detailed drawings of the individual splash park features and their installation have been provided by the supplier, Vortex. In return the Rotary groups are seeking support to call the facility the Rotary Centennial Splash Park, to have the Rotary emblem prominently displayed in several areas of the facility, and lastly, as previously approved by the Council, the placement of a public art piece at the entrance. This arrangement, while somewhat unusual, would mean the substantial savings realized by not hiring a contractor to complete the splash park could instead be utilized to buy additional features for the facility. The Town is contributing $125,000 to the project, while the Noon Rotary, through its Foundation, is contributing additional funds along with the Four Peaks Rotary. Lastly, one of the co-owners of the Plaza Fountainside development has committed another $25,000. Under Maricopa County's existing pool code, which is adminstered by the Environmental Services Department, the Town was required to file thirteen separate variances and attended a hearing at their Phoenix office on Sept. 9. Fortunately, the County concluded that the Town did not have to fence the site or provide a lifeguard, as there is no standing water. However, the County is requiring that a park staff person be “in” the park when the splash park is operating. The existing full time park staff fills this requirement during the weekdays, but part-time staff would need to be added for early evenings, weekends and holidays. A rough estimate of this cost, based on an estimated season and daily operational hours, would be approximately $6,000, plus benefits ($7.50/hr. X 800 hrs. ____________________________ _____________________________________ ____________________________ = $6,000). Lastly, Maricopa County granted variances that allowed the installation of the various spray features from the bottom of the “pool”, which is required in the construction of splash parks, but prohibited when constructing a swimming pool. The County is currently reviewing the plans submitted recently for the project with approval pending. The Town’s own Building Department would perform routine inspections of the construction and the County would perform a final inspection prior to the facility being allowed to open. Copies of the specifications on the project are on file with the Town Clerk A representative of the two local Rotary groups will be in attendance to help answer questions. List All Attachments as Follows: A signed agreement by the Four Peaks and Noon Rotary groups, which was prepared by the Town Attorney. Type(s) of Presentation: Verbal and a presentation by Miracle Playgrounds on their Vortex equipment Signatures of Submitting Staff: Department Head Budget Review (if item not budgeted or exceeds budget amount) Town Manager CONSTRUCTION MANAGEMENT AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS, THE ROTARY CLUB OF FOUNTAIN HILLS AND THE ROTARY CLUB OF FOUR PEAKS (FOUNTAIN HILLS)ARIZONA USA,INC.S THIS AGREEMENT (this "Agreement")is made this 2 &-dayof ~e.~""vo ,200j by and between the Town of Fountain Hills,Arizona,an Arizona municipal corpoktio£(the "Town"),the Rotary Club of Fountain Hills,Inc.,an Arizona non-profit corporation,and the Rotary Club of Four Peaks (Fountain Hills)Arizona USA,Inc.,an Arizona non-profit corporation,for construction management services (the "Services")in connection with the Fountain Hills Splash Park Project ("the Project"). RECITALS: A.The Rotary Club of Fountain Hills,Inc.and Rotary Club of Four Peaks (Fountain Hills)Arizona,USA,Inc.(collectively,the "Project Managers")have offered to participate as construction managers for the Project. B.The Town desires to have a splash park constructed for its citizenry and to enter into an Agreement with the Project Managers to perform the Services in connection with the Project. AGREEMENT: NOW,THEREFORE,in consideration of the foregoing and the conditions and covenants set forth below,the Town and the Project Managers hereby agree as follows: 1.Proiect Managers'Responsibilities. 1.1 Services.The Project Managers hereby covenant with the Town to furnish the Services,material and labor to construct a splash park as set forth in this Agreement,in accordance with:(i)the Project Manager's Scope of Work,attached hereto as Exhibit A and incorporated herein by reference;(ii)the Installation Specifications attached hereto as Exhibit B and incorporated herein by reference;and (iii)the Site Plans,dated January 25,2005,attached "hereto as Exhibit C and incorporated herein by reference.Should it become apparent,during completion of the Services,that the actual costs for completing the Project shall exceed the amounts set forth in the Project Budget,attached hereto as Exhibit D and incorporated herein by reference,then Project Managers shall have reasonable discretion to eliminate features in the splash park to prevent the $287,477.18 amount from being exceeded;provided,however,that no such elimination shall involve removal of or alteration of the Vortex Splashpad Equipment (the "Equipment"),as more particularly described in Section 2.2 below. 1.2 Payment.In addition to providing the Services,the Project Managers hereby agree to pay the Town $13,735.78.This amount represents a portion of the cost of the Equipment,more particularly set forth in the Project Budget,and the sales tax thereon,minus $125,000. 9196.009\Rotary.agt.v5.doc1.28.2005-1 1.3 Joint/Several Liability.The Project Managers hereby agree to be jointly and severally liable for the performance of the Services required in this Agreement.The Town understands and acknowledges that some of the work to complete the Splash Park shall be performed by volunteers who are not employees of contractors.However,the Town shall not be responsible for the work of volunteers;any responsibility for the volunteers and their work shall be borne by the Project Managers. 2.The Town's Responsibilities. 2.1 Town Requirements and Specifications.The Town shall provide,at no cost to the Project Managers,all copies of drawings,specifications and site data reasonably necessary for the execution of the Services. 2.2 Supply of Materials for the Proiect.On the business day following the execution of this Agreement,the Town shall order and purchase for the Project Managers the Equipment more particularly set forth as the "Water Features"in Exhibit B. 2.3 Naming the Park.The Town shall name the completed splash park as the "Rotary Centennial Splash Park"(the "Splash Park")as consideration for the Services provided by the Project Managers under this Agreement. 3.Warranty.Project Managers separately warrant that the Services rendered in performance of this Agreement will conform to the Project requirements. 4.Licenses.To complete the Project,the Project Managers shall engage contractors, who may be volunteers,to perform work appropriate for contractors.Said contractors shall maintain in current status all Federal,State and local licenses and permits required for the Services to be provided by the Project Managers under this Agreement. 5.Indemnity,To the fullest extent permitted by law,the Project Managers shall defend,indemnify and hold harmless the Town,its agents,representatives,officers,directors, officials and employees from and against all claims,damages,losses and expenses (including, but not limited to,reasonable attorneys'fees,court costs and the cost of appellate proceedings) relating to,arising out of,or alleged to have resulted from the negligent or intentional acts, errors,mistakes,omissions,work or services of the Project Managers,their respective employees,agents,or any tier of the Project Managers'subcontractors in the performance of the Services unless caused by,relating to,arising out of,or alleged to have resulted from the negligent or intentional acts,errors,mistakes,omissions,work or services of the Town,its agents,representatives,officers,directors,officials and employees.The Project Managers'duty to defend,hold harmless and indemnify the Town,its agents,representatives,officers,directors, officials and employees shall arise in connection with any claim,damage,loss or expense that is attributable to bodily injury,sickness,disease,death,or injury to,impairment or destruction of property,including loss of use resulting therefrom,caused by any negligent or intentional acts, errors,mistakes,omissions,work or services in the performance of the Services by any employee of the Project Managers or any tier of the Project Managers'subcontractors or any other person for whose negligent acts,errors,mistakes,omissions,work or services the Project Managers may be legally liable.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 5. 9196.009\Rotary .agt.v5 .doc 1.28.2005-1 2 The Town recognizes and agrees that maintenance and operation of the Splash Park and its equipment ("the Maintenance")shall become the sole responsibility of the Town upon receipt of an operational permit from Maricopa County for the Splash Park and its equipment.To the fullest extent permitted by law,the Town shall defend,indemnify and hold harmless the Project Managers and their agents,representatives,officers,directors,officials and employees from and against all claims,damages,losses and expenses (including,but not limited to,reasonable attorneys'fees,court costs and the cost of appellate proceedings)relating to,arising out of,or alleged to have resulted from the negligent or intentional acts,errors,mistakes,omissions of the Town in performing the Maintenance,unless caused by,relating to,arising out of,or alleged to have resulted from the negligent or intentional acts,errors,mistakes,omissions,work or services of the Project Managers,their agents,representatives,officers,directors,officials and employees. 6.Insurance.Project Managers shall procure and maintain the following insurance for the term of the Agreement:. (a)Commercial General Liability ("CGL")-Insurance Services Office,Inc. ("ISO")Form CGOO010798or equivalent with a limit of not less than $750,000 for each occurrence,$750,000 Products/Completed Operations Annual Aggregate,and a $1,500,000 General Aggregate Limit. (b)Business Automobile Liability -Business Automobile Liability insurance with a limit of $250,000 per occurrence,$750,000 aggregate on Project Managers'owned,hired and non-owned vehicles assigned to or used in the performance of the Project Managers'work or servicesunderthis Agreement.Endorsementto CGLPolicyabove-ISOFormCG04191185or its equivalent. (c)Professional Liabilitv -To the extent the Project Managers have professional services or work performed in rendering the Services and completing the Project, the Project Managers shall ensure that the persons so employed (or anyone for whose negligent acts,mistakes,errors and omissions Project Managers are legally liable)maintain Professional Liability Insurance covering negligent errors and omissions arising out of such work or services in an unimpaired liability insurance limit of$1,000,000 each claim and $2,000,000 all claims.n The Town agrees that the above-referenced insurance shall be deemed adequate for the Project.The above-referenced insurance shall not be cancelled or materially changed without 30 days prior written notice to the Town from the Project Managers.Project Managers shall require that all subcontractors procure and maintain CGL insurance in amounts equal to those required for the Project Managers. 7.Term:Termination. 7.1 Term.The term of this Agreement shall be for one year,commencing on the date first set forth above and continuing for a period of one year thereafter,unless sooner terminated pursuant to this Section 7. 9 196.009\Rotary.agt.v5.doc 1.28.2005-1 3 7.2 Termination For Cause.This Agreement may be terminated by either party upon 30 days'written notice should the other party fail to substantially perform in accordance with this Agreement's terms,through no fault of the party initiating the termination. 8.Applicable Law:Venue.In the performance of this Agreement,Project Managers shall abide by and conform to any and all laws of the United States,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 any suit pertaining to this Agreement may be brought only in courts in the State of Arizona. 9.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:(i)delivered to the party at the address set forth below;(ii)deposited in the U.S.Mail, registered or certified,return receipt requested,to the address set forth below;(iii)given to a recognized and reputable overnight delivery service,to the address set forth below;or (iv) delivered by facsimile transmission to the number set forth below: If to the Town:Town of Fountain Hills 16836E.Palisades Boulevard Fountain Hills,Arizona 85268 Facsimile:480-837-3145 Attn:Timothy Pickering,Town Manager With copy to:JORDEN,BISCHOFF,MCGUIRE ROSE &HISER,P.L.C. 7272 E.Indian School Road,Suite 205 Scottsdale,Arizona 85251 Facsimile:480-505-3901 Attn:Andrew J.McGuire,Esq.n If to Project Managers:Martin Brown 15615 E.Jamaica Lane Fountain Hills,AZ 85268 With a Copy to:Richard Bauer 10435N.Nicklaus Dr. Fountain Hills,AZ 85268 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 (i)when delivered to the party,(ii)three business days after being placed in the U.S. Mail,properly addressed,with sufficient postage,(iii)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 (iv)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 counselor other recipient,the provisions above governing the date on which a notice is deemed to have been received by a party shall mean and 9196.009\Rotal)'.agt.v5.doc 1.28.2005-1 4 refer to the date on which the party,and not its counselor other recipient to which a copy of the notice may be sent,is deemed to have received the notice. 10.Miscellaneous Provisions. 10.1 Amendments.This Agreement may be modified only by a written amendment (i)approved by the Town Council and (ii)signed by persons duly authorized to enter into such amendments on behalf of the Town and the Project Managers. 10.2 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 throughjudgment. 10.3 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. 10.4 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. 10.5 Relationship of the Parties.It is clearly understood that each party will act in its individual capacity and not as an employee,partner,joint venturer,or associate of the other.AQemployee or agent of one party shall not be deemed or construed to be the employee or agent of the other for any purpose whatsoever. 10.6 Interpretation:Parol Evidence.This Agreement represents the entire agreement of the parties with respect to its subject matter.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. 10.7 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 the Services,shall not release the Project Managers 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. 9196.009\Rotary.agt.v5.doc 1.28.2005-1 5 10.8 Cancellation.This Agreement may be cancelled by the Town pursuant to ARIZ.REv.STAT.§38-511. IN WITNESS WHEREOF this Agreement was executed on the day and year first written above. "Town""Project Managers" TOWN OF FOUNTAIN HILLS,an Arizona municipal corporation THE ROTARY CLUB OF FOUNTAIN HILLS,INC.,an Arizona non-profit corporation By: Timothy G.Pickering,Town Manager By:0ILtVlQ.~~ Name:l ClvUrQ..,1\\"f"leD ATTEST: Its:"PR.C:~\d e n-t ,"" ROTARY CLUB OF FOUR PEAKS (FOUNTAIN HILLS)ARIZONA USA, INC.,an Arizonanon-profit corporation dfJ{;b M.\Ck.d flc--t-,'". Prw:~~-t" By: Bevelyn 1.Bender,Town Clerk Name: Its: 9196,009\Rotary ,agt v5 ,doc L282005-1 6 .. EXHIBIT A SCOPE OF WORK The Project Managers'Services shall include,but not be limited to the following: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. Installationof the Vortex Splashpad SplashPark features to be provided by the Town. Install"First Love"bronze statue at the entrance of the Splash Park. Install Splash Park entrance. Supply and set-up of temporary fencing. Grading and compaction. Plumbing the SplashPark features. Plumbing the drains and tank. Provide the potable water and sewer connection. Form,pour and finish the slab. Provide and wire a 75 amp service. Provide,waterproof,excavate and install the pump house. Provide surveywork,elevationsand the site plan. n 9196.009\Rotary.agt.v5.doc 1.28.2005-1 EXHIBIT B VORTEX SPLASHP AD INST ALLA TION SPECIFICATIONS [see following pages] 9196.009\Rotary .agt.v5.doc 1.28.2005-1 OSR ROTARY CENTENNIAL SPLASH PARK \'CO ~FOUNTAINPARK \~0'%12925N.SAGUAROBLVD.~6' FOUNTAINHillS,ARIZONA85268 \%-~\~\\\ (( FOUNTAIN LAKE \\?~';j,.\\?0'0"/<5"'i9 ~~'""".'6'.,-'" I~R\\\\~~~\~$~--~"--- GRADING AND DRAINAGE NOTES FIRE DEPARTMENT REQUIREMENTS ,.WE""LoPERSHALL"'''THEREOO!REO (OR E"onNG)"REHYORAN"INS"'LEO ANDoPERABLEPR'ORTOWE rOOTINGIN"ECnON PRO."A CURRENTAPPRO"D copy DCnOEC'.LWATERPLA",W WE"RE """,LER soaeON1RACTOR(S)FORLOCAnNGNEWAN'/OR '"SnNG H\'ORAN"WATER""N SOPRLY.',,,'-"N,sn,OR,,"AnoN.ETC. ,.CERn""n'N DC"N""FLOORS°'"''''"'"'DO "THE RESPONS,"'''TYDCTHE""">PER.'"'WER.O,.ER ANGSHAll 8£s",">TIm P"OR W APECUES'FORCER""CAnONoPoce",""ORmAL IN"EC1"N. 2 ANAPPRO"OOR"'"'ANDORAINAGfPLANSHALL'E ON'HE "'""TE ATALL :~~~ON".A"NS EROMTHEP"'N "OST"PRECE"DBYANAReRD«DPlAN 3.ALLOR"NACEPRDmn"".C,,,CUONASSWALES.PWES.PROncen"""OROTHER"EASURESDE"ONm TOPROTECT 'U"D'NGS DR"OPERTYrRO"STORMRUNOFFMUST"COOPlETEO P"DR TOANYS1RUCroRE'''NO "0"T. ,"O.DE ANALLW""HER ACCESS"AD ["IN'M'M 20 FEET "DE)TO ALL '",W",S AND N",eAN"OUR'NG CONSTRUCTION 3.A neE SP"N"ER SYSTE"SHALL BE DES"NED ,"0 'N51ALLED TO N.'n.AND ""","'N "'llS TO,.OR.NANCE 95-3'51ANDAe" ..rOUNDA"ONSS"ALL'EAR ONNAn"soc URCoMPACTEDnLL wIM'".9,.COO?ACTIONPERAS""0698 5.PREPARAnDN0'GROUND,mE 1'''1'O"R "'CH ellS A"Y1)BE"ADE SHALLBECLEAREOOfALL1RASH.TREES.sro"".DEDR"OROWERMA"'''AL '°,SU"A'"ASA'OUNDAT>ONrORnLL..mE ""SPR,"'LERSUBCONTRACTORSHALLSU'"",HREE(3) sm Of DR'''"'S.,WO(2)SEOOF"YORAUUCCALCOLAnONS.ANDONE(,)COPYOFmE APPRO«DO.L "TE PLAN. ~OHE""SPR"'LER"'TE"SHAU.BEP"SSU"TESTEDANDAPPRO"D P"OR '0 CALUNCrOR ROOON'''"'NO'NSPECnON"1H£TO"ANDAnNAL ""SP","LER 'N"ECnON 5"1'''BEAPPRO"DP"DRWCALU'O1<ETO'"'ORA CL'''''CATEOfOCMANCY,"SPECTIDN. 6.LOCAnONSor ALLunLm"S"O"ONTH"PL,,"A",.sE ON'N,,,;AnDNSUPP"EOm THE,""NEER BY 1HEAPPROP"ATEunu",COMPANE NOCUARAN"'EONLOCH'ONSORACCURACY"'MPUEOOR""N.""1HERESPON"",U","1HECON1RACTURmCON'ACT'LOCSTA"(263->100)ANDANYOTHER,"voc"'"A£<NOEmLOCAlEALLununESPR'DRTOCON51RucnON. 7."T"'N,"O WAllSSHALLBE"AURnLLEO~1<2.m 3.STONE"1H ,.DRA,"S"ONOFNIER. 6.P"""£5 OO"'''CAnONTO"LE"'LEfROM n"S1R'"UROR'"'"CON1RAsnNe CD1.ORS AND MU51 BE ON All PLANS 7.DEVEtOPER TOPRO."LEO"LE IE"PORA"S1REET "G""PER"ANENT STREET "ONS A"NOT'N PLACE BY RCUCH-m-'NSPECnD'. &.SIUReEO AREAS SHALL BE REPLANTED "1H OESERT PLAN"ORDROUGHT-RE",TANT Pl,,"","snNG ",mnON SHALL BE "LOCATm "D"IURBEBYCONS1RucnON. ..ALL EXPOSED ,nNN'",WALLS AND FENCES SHALL BE "N'SHED "T"P"'N"'D SlUceO. &CoAlEDCOM"U",",S "LL "A«A PREE"TIONSEN"NGDE.CEAND'"ox "CESS SYSTEM~P"'CE ANDOPERABLEPR'DRTOSECU"NCGAlES. ..ALLHOUSES"LL BETIED'NTOmE DO"ES"CSUPPLYAT1HETIME(£THERDUGH-,"-,""EC1'," 10.CON1RACTOR/BU""ERS""LL NOTI"mE ENONEE'"'ANYVA",ANCES"m:ER1HESEPLANSANOON-'''E C,"DmONS. II.ALLDR"'NAGESWALESSHALL"MNNTA'"EDBYOWNERTOBEFREEor 1RASH,5""DETATIONANDDED'''. 10.PER""REOU"EDFOR"OT TAeAND/DRTORC"APPUCATION RODrlNG. "CON1RACTOR S"ALL ""'''PROPERTY URE LOCATIONS PR'OR TO P'OCE"'NG "WWORK. 13.ARON'TECroRAC S1RUGroRAL.mC1R"AL."EO<AN"AL AND Plo",mG ME eo,APMTOF1H"9TE P"'N. ,..LOCATIONS",ANY"DETAn,"NOTEDAREAPPRO""AIE AND'HDUW NOTBEUQfORLANDSCAPEARO<'TEer"ALPLANN'NG. .~ TOWN OF FOUNTAIN HILUt 0 10 2D 3D SCALE.,'.~10' SITE ZONED n ~-_..lJ~}~~SITE DATA MQIE>, ,.'INAL 'NTEReRETAnON or '"'''''NG SETBACKSANDLOTCD"RAGE "1HE "SPON""UTY or THE ARC",TECT/DE"ONER or THE S1RUCIURES AND 1HECORRESPON>NG G"<PN"ENTAL ACE",Y or 1HEPROPERTV.GRADING PLAN2WATER""'NANDSC"R LOCATIO"ARE'ASEDON'''OR"ATIONPRD.DEDBYmE TO"orrOUN",'N Hm AND"ONUMER'SfOUND~1HEnFLOAND"AY NOTBEEXACT. ~CONTRACTORmERSUREPO"TI"DR"'HADEfRDN,"''''NG ,OUNOAnONTOPROPERTYUNE.NOrn-yEN"NEE'or ANY"SCREPAN"'S BRASSCAPflUS"'"CENTERUNEor"RER"CE 1RA""FRONT(£SWTH"'ST LOTCOeNERASSO"EDELEVAnON°'100.00rEET \i.\\=-~'"89.!b.EC '.,"",,=-~- \0 ~"T d:~~gx~~'s~N~~A~A,n~~~~\.~".'\UN'EX'"LOCAnONToBE~:\."'WVI"""D. ~~ /~/EX.WAUl -~ ""'7£C \\ ~APPRD"MATELOCATIONor ."",,=-~FLEC1R""-1RANSlOR"ER /~'\\BL;;,.~ci~'i~Tp1~,i~GLt~ ~ DESIGNER HAL"'A"HDNES'6622A"NUE or THErOURT"'NS,'00fOUN""N "u.s.AX"20' 0 ('00)'16-8999CONTACT,GENE'AKER SPLASH PARK BENCHMARK ENGINEER 1:''"'''''' , Enginee,".Su"eyo's,:;i~~\.,..~.. -::,l'f;;;;.S';,:;:~~.,~)'~'-I~"'" HfRO.INC.13229N."RDE "NERDR'"'300rOUNT"'N~LLS.AZ0$2660("0)83'-""CONTACT,'"''1REIBAR P.E. OCT '/12/m EXHIBIT C SITE PLANS [see following pages] 9196.009\Rotary.agt.v5.doc 1.28.2005-1 EXHIBIT D PROJECT BUDGET [see following pages] 9196.009\Rotary.agt.v5.doc 1.28.2005-1 Cost Funding Obligation FH Park & Rec 125,000.00$ P&R to $125,000 Rotary Clubs (Noon)31,000.00$ From Club Pledges and cash 23,100.00$ To Noon Club FH Rotary (Four Peaks)56,000.00$ From Club Pledges and cash (Four Peaks)35,105.00$ To Four Peaks Project Manager 15,000.00$ 15,000.00$ Donation R Water Features 130,299.00$ P&R Sea Horse Cannon P&R Diver Cannon P&R 5 grnd geysers P&R 4 rooster tails P&R 3 directional water jets P&R 2 mini water tunnels P&R Lighthouse P&R Schooner w/Rotary Logo P&R (2) Magic touch bollards P&R Custom Whale feature P&R Custom Sea Serpent P&R 4 drains P&R 3000 G/hold tnk P&R Automated WQMS P&R 21 valve Distributor P&R 26 valve controller P&R Taxes 10,237.29$ R Announced 8% increase 8,587.00$ 1% Mohave Fee 1,407.23$ R 9% Mohave Discount (12,499.74)$ P&R Estimated freight 4,100.00$ R MCES Fee (variances)(2,600.00)$ P&R MCES Fee (plan review)(795.00)$ P&R Subtotal:153,735.78$ Statue @ entrance 25,000.00$ 25,000.00$ Donation R Entrance Feature 10,000.00$ R Install of features 2,500.00$ R Entrance install 2,000.00$ R Set Up & Fencing 2,082.00$ R Grading & Compaction 4,344.00$ R Features plmbg 14,000.00$ R Drain and tank Plmbg 17,564.00$ R Potable Water connect 3,366.00$ 1,000.00$ Chaparral Water Form and place slab 25,000.00$ R 50 Amp Panel 2,500.00$ R Pump house 6,000.00$ R Chemicals 500.00$ R Waterproof Pump house 500.00$ R Excavation for tank 500.00$ R Survey & Elevations 800.00$ R Taxes 14,085.40$ R Electrical hook up 3,000.00$ Total 287,477.18$ 311,205.00$ P&R = Parks and Rec R = Rotary 7/7/2004. Rvsd 9/7/04, 9/10/04, 9/24/04, 9/29/04, 10/4/04, 1/27/05, 2/2/05 ROTARY CENTENNIAL SPLASH PARK BUDGET ____________________________ _____________________________________ ____________________________ Town of Fountain Hills Town Council Agenda Action Form Meeting Type: Regular Meeting Meeting Date: February 3, 2005 Submitting Department: Parks and Recreation Contact Person: Mark C. Mayer Consent: Regular: Requesting Action: Report Only: Type of Document Needing Approval (Check all that apply): Public Hearing Resolution Ordinance Agreement Emergency Clause Special Event Permit Special Consideration Intergovernmental Agreement Acceptance Grant Submission Liquor/Bingo License Application Plat Special Event Permit Special/Temp Use Permit Other: Agreements Education Public Fitness :Council Priority (Check Appropriate Areas) Library Services Public Safety Community Activities Economic Development Public Works Human Service Needs Parks & Recreation Town Elections Community Development Regular Agenda Wording: Consideration of Approving the purchase of Vortex spray park equipment from Miracle Playgrounds, Inc. through the Mohave Educational Service Cooperative. Staff Recommendation: Approve Fiscal Impact: Yes $125,000 Purpose of Item and Background Information: This agreement would allow the purchase the spray park equipment from Miracle through Mohave, utilizing currently budgeted funds for the facility. The Parks and Recreation Commission and department staff have been working cooperatively with both the Noon Rotary and the Four Peaks Rotary on planning for the construction of a splash park. Approving the purchase agreement for the Vortex equipment would yield a significant discount and help to ensure the timely delivery of the equipment, which is estimated to take eight weeks. The 100 year anniversary of the founding of the Rotary organization will be celebrated in February 2005, and the two local Rotary groups have both committed resources from their organizations, including funds and labor, to complete this project as part of the national celebration of Rotary's founding. The purchase agreement was prepared by the Town Attorney's Office and copies of Miracle's contract with Mohave are on file with the Town Clerk. List All Attachments as Follows: Purchase Agreement Type(s) of Presentation: Verbal and a PowerPoint presentation by Miracle on the Vortex spray park equipment Signatures of Submitting Staff: Department Head Budget Review (if item not budgeted or exceeds budget amount) Town Manager JAN-31-2005 11:42 FH COMMUNITY CENTER P.02/03 PURCHASE AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND MIRACLE PLAYGROUND SALES SOUTHWEST,LLC THIS PURCHASE AGREEMENT (this "Agreement")is entered into as of -,2005,between the Town of Fountain Hills,an Arizona municipal corporation (the "Town")and Miracle Playground Sales Southwest,LLC,a Nevada limitcd liability company (the "Contractor"). RECITALS A.After a competitive procurement process,Mohave Educational Services Coopcrati ve ("MESC")entered into contract No.02F-MPSS-1218 with the Contractor to purchase splashpad equipment (the "MESC Contract").The MESC Contract,inc]uding the amendments thereto,is incorporated herein by reference and is on file in the office of the Town Clerk. B.The Town is permitted by State Law to purchase splashpad equipment under the MESC Contract without any further public bidding. C.The Town desires to contract with Contractor for the purchase of splashpad equipment under the MESC Contract for a cost lower than would otherwise be available. AGREEMENT NQW,THEREFORE,in consideration of the foregoingand the covenants and promises sct fOl1hbelow,the parties hereto agree as follows: 1.Contractor shaHdelivel'the splashpad equipment I.Ind~rthe terms and conditions of the MESC Contract only aCter Contractor receives a purchase order from MESC fot'said equipment. 2.The Town shall pay Contractor a prict:not to exceed $137,328.55 for the purchase and delivery of Vortex Splashpad Equipment in the configurations more particularly set forth in Exhibit A,attached hereto and incorporatedby reference. 3.This Agreement may be cancelled pursuant to ARIZ.REV.STAT.§38-511. [SIGNATURES ON FOLLOWING PAGE] 9196.009\Mimclc agl.v3.doc I,"\I.200~-1 JAN-31-2005 11:43 FH COMMUNITY CENTER P.03/03 EXECUTED:as of the date first set forth above. "Town""Contractor" TOWN OF FOUNTAIN HILLS,an Arizona municipal corporation MiraclePlayground Sales Southwest,LLC, a Nevada limited liability company By: Timothy G.Pickering,Town Manager By: Name: Title:(j \'\~t"~L.\--Mc--,,,,,-rA£"A r ATTEST: Bcvclyn1.Bender,Town Clerk 'J I'Jl'I'()()')\Mimc:!c agl.v3.doc 1..11.2005-1 2 TnTQI C IA< TOWN OF FOUNTAIN HILLS OFFICE OF PARKS AND RECREATION INTER OFFICE MEMO TO: Mayor Nichols and Town Council DT: January 26, 2005 FR: Mark C. Mayer, Director Bryan Hughes, Supervisor of Recreation Parks and Recreation Department RE: IronMan event Background Representatives from IronMan North America out of Boulder, Colorado, first contacted Departmental staff many months ago about the potential for a race through our community. The group was interested in bringing an IronMan event to Arizona and the valley. The IronMan race as planned includes a 2.4 mile swim, a 112 mile bike ride, and a 26.2 mile run. The swimming portion would take place at Tempe Town Lake, the staging area for the event. The bike portion would begin in Tempe and come up the Beeline Hwy and enter Fountain Hills from Shea. The race would continue through Town up to McDowell Mountain Regional Park before returning to Tempe. This route would be followed twice to reach the necessary 112 miles. Lastly, the run portion would take place in Tempe and Scottsdale. Fountain Hills’ Commitments Staff has worked closely with IronMan race officials, the local MCSO staff, and the Town’s Street Department to establish a route through Town, and to provide the necessary traffic barricades and law enforcement needed to conduct a race of this size and distance. Under the contract, the Town would be responsible for the cost associated with the traffic barricades and law enforcement for the portion of the race that would be in our community. The traffic barricade cost will be $10,320.30 and the estimate of law enforcement costs would be $7,425, for a combined cost of $17,745.30. It is the hope of staff to be able to host a festival in Fountain Park to take advantage of the race and the expected visitors to our community. Staff currently has two applications in to adjacent tribal councils requesting funds to assist in hosting this festival. It is expected that this festival will grow as the race location in the valley matures. The race will be broadcast on the Outdoor Life Network and will be covered extensively by international, national, state, and valley media. Over 2,000 participants are expected to participate in this race, which is already sold out. The City of Tempe, through its Convention and Visitor’s Bureau, has paid the IronMan group $150,000 to host the race. The proposed contract with IronMan is for one year subject to annual renewals for up to four additional years for a total of five years. The Town and IronMan would review the agreement annually before deciding to host the event another year. Race Notification IronMan has also committed to a significant public information campaign beginning in earnest a month before the race with lit signs along Shea and Beeline informing people of the event and the expected traffic delays. In addition, IronMan has committed to two mass mailings within Fountain Hills to all residents and businesses. The first announcement would be mailed well in advance of the race and the second mailing just before the race. There would also be numerous additional signs placed along Shea informing people of the race and the expectant traffic delays the day of the race. It is expected that these traffic closures and delays will last from approximately 8:00 am to 5:00 pm the day of the event. Access to the Beeline from Shea would not be permitted during this period. Access to the Beeline would still be possible through the Ft. McDowell Reservation. Economic Benefits The race is expected to bring between 10,000 and 20,000 people to the valley for the event. Because much of the race route outside of Tempe is Salt River / Pima Reservation land, and the reservation does not want, nor will the reservation or IronMan allow spectators along the route, it is anticipated that many of the spectators will come to Fountain Hills to see the event in progress. While it is impossible to predict in our first year how many spectators will visit our community, the potential for thousands, and the economic impact of those spectators and race support people are likely to be substantial. Staff has discussed the event with Chamber President, Frank Ferrara, and he is supportive of the event. The Town Attorney has prepared the contract, which is to be been signed and forwarded on Monday by IronMan. The race has been reviewed by the Town’s Special Event Committee and they along with staff are recommending approval of the Special Event Permit. ____________________________ _____________________________________ ____________________________ Town of Fountain Hills Town Council Agenda Action Form Meeting Type: Regular Meeting Meeting Date: February 3, 2005 Submitting Department: Parks and Recreation Contact Person: Bryan Hughes Consent: Regular: Requesting Action: Report Only: Type of Document Needing Approval (Check all that apply): Public Hearing Resolution Ordinance Agreement Emergency Clause Special Event Permit Special Consideration Intergovernmental Agreement Acceptance Grant Submission Liquor/Bingo License Application Plat Special Event Permit Special/Temp Use Permit Other: Contract Education Public Fitness :Council Priority (Check Appropriate Areas) Library Services Public Safety Community Activities Economic Development Public Works Human Service Needs Parks & Recreation Town Elections Community Development Regular Agenda Wording: Consideration of approving a Contract with IronMan North America for an IronMan event through Town scheduled for Saturday, April 9, 2005 Staff Recommendation: Approve Fiscal Impact: Yes $17,745.30 Purpose of Item and Background Information: Staff have been working cooperatively with the community of Tempe, host for the event, and IronMan North America for a number of months in the planning of this potential event. The race would consist of a 2.4 mile swim in Tempe, a 112 mile bike ride, that would be from Tempe through Fountain Hills to McDowell Mountain Park and back twice, and finally a 26.2 mile marathon in Tempe and Scottsdale. The Town would be responsible for the race barricades and the law enforecement costs associated with bringing the race into Fountain Hills. The race will require a number of road closures and numerous traffic enforcement personnel. Under the contract the Town would be committing for a one year period. The agreement is renewable annually for four additional years for a total of five. It is the Park and Recreation Department's long term hope that we can develop a festival in Fountain Park around the event. Staff is currently seeking Prop. 202 funds to support the festival. A representative from IronMan will attend the Council meeting to make a short presentation and to help answer questions along with staff. List All Attachments as Follows: Contract, Race Map, IronMan fact sheet, Event notification sheets Type(s) of Presentation: Oral and PowerPoint Signatures of Submitting Staff: Department Head Budget Review (if item not budgeted or exceeds budget amount) Town Manager/Disignee IRONMAN USA FOUNTAIN Hn.LS EVENT AGREEMENT THIS EVENT AGREEMENT (this "Agreement")is made and entered into by and bet/Ncen !tonman North America Triathlon,Inc.,a Delaware corporation ("Ironman")and the Town of Fountain Hills,an Arizona municipal corporation ("Fountain Hills"). RECITALS A.Ironman wishes to stage an Ironman Race to be called Ironman Arizona (the "2005 Race")in and around Tempe,Arizona,on April 9,2005,and thereafter during the month of April from the years 2006 through 2009 (individually,the Ironman Races,including the 2005 Race,may be refclTcdto as a "Race"). B.The City of Tempe (''Tempe'')and the Tempe Convention and Visitors Bureau (the "Tempe EVB")have agreed to host the Race in and around Tempe,Arizona. C.Ironman wishes to have a segment of the Bike Course of the Race travel through the Town of Fountain Hills (the "Fountain Hills Segment")and Fountain Hills wishes to have Ironman stage a portion of the Bike Course in and around the Town of Fountain Hills upon the terms and conditions as provided for in this Agreement. AGREEMENT NOW,THEREFORE,in consideration of the foregoing recitals and the promises and mutual covenants and conditions hereinafter set forth,and intending to be legally bound,the parties agree as follows: I.Term.This Agreement shall commence upon the date of the signatures hereto.as set out below,and shall continue for a period of one year thereafter.This Agreement shall automatically renew annually for four additional,consecutive one-year terms until the completion of the 2009 Race,unless either pany gives notice to the other party of its intent to cancel this Agreement not less than 180 days prior to the end of the then-CUlTenttenn.The continuation of this Agreement is specifically subject to Ironman and the Tempe continuing to host the Ironman Arizona.Therefore,in addition to the right to not renew this Agreement as set forth above,Ironman may terminate this Agreement at anytime after the 2005 Race if the contract between Tempe and the Tempe CVB to host Ironman Arizona is tenninated.If this Agreement is tenninated in accordance with this section,Fountain Hills agrees that there will be no further obligations owing by Ironman. 2.Contin£ency.This Agreement is contingent upon Ironman obtaining permission in each year of this Agreement from the Salt River Pima-Maricopa Indian Community (the "Community")to use certain roads passing through the Community land for the Bike Course.If the Community refuses such permission,Ironman may tenninate this Agreement and Fountain Hills agrees that there will be no further obligations owing by Ironman. 9196.009\1ronman ContrlC!.v5.doc 2.2.2005-1 3.Obligations of Fountain Hills.In consideration of Ironman agreeing to stage the Fountain Hills Segment in and around the Town of Fountain Hills,Fountain Hills agrees as follows: a.FountainHillswill provideand will be responsiblefor all costs associated with FountainHills road closures for the FountainHills Segment,includingbut not limited to, costs associatedwith barricades,law enforcement,pennits and traffic control required on the FountainHillsSegment.Ironmanagreesto provideFountainHills with technicalassistanceand othersuppliesrequiredfor theroadclosures. b.Fountain Hills will be responsible for obtaining,on Ironman's behalf,all necessary pennits required for the Fountain Hills road closures for the Fountain Hills Segment. 4.Ironman Obligations.In consideration of Fountain Hills hosting the Fountain Hills Segment through the Town of Fountain HiIls,!ronman agrees as follows: a.During each year of this Agreement during a Race period Ironman shall procure and maintain insurance in conjunction with the Race in the types and amounts set forth in Section 5 below. ~b.!ronman will be responsible for the logistics associated with the Fountain Hills Segment,including but not limited to,placing barricades,cones.signs.traffic devices,port- a potties.aid stations,Paramedics and EMT and other supplies required on the Fountain Hills Segment. c.!ronman will be responsible for obtaining the necessary volunteers and other personnel required to assist on the Fountain Hills Segment,including but not limited to.aid station volunteers,pointers,security and other volunteers as required.Ironman will also be responsible for coordinating with the Maricopa County Sheriffs Department regarding law enforcement activities necessary along the Fountain Hills Segment;provided,however,that Fountain Hills will be responsible for the cost of providing such additional law enforcement along the Fountain Hills Segment. d.Ironman will provide t-shirtS for Race volunteers along the Fountain Hills Segment working at aid stations,security and traffic control points based on normal Ironman allocations,i.e.60 per aid station,1 per police officer. e.Ironman will provide !ronman Pennant Line and at least twenty (20) Banners to Fountain Hills to be used to decorate the Fountain Hills Segment.Fountain Hills agrees to place at least twenty (20)Ironman banners on street light poles in Fountain Hills at no cost to Ironman;provided,however that such banners are compatible with the existing mounting hardware utilized on Fountain Hills'street lights. S. follows: Representationsand Warranties.The parties hereto represent and warrant as 9196.009\Ironman ConU'llat vS ,doc: 2.2.2005.1 2 a.Fountain Hills represents and WaITantsto Ironman that:(i)it has the full right and authority to enter into and perform its obligations under this Agreement;(ii)the rights granted to Ironman hereunder will not violate or otherwise infringe upon the rights of any third party;and (iii)the execution,delivery and performance of this Agreement will not violate the provision of any agreement to which Fountain Hills is a party or by which it is bound. b.Ironman represents and warrants to Fountain Hills that:(i)Ironman has the full right and authority to enter into and perform its obligations under this Agreement;(ii)the rights granted to Fountain Hills hereunder will not violate or otherwise infringe upon the rights of any third party;and (Hi)the execution.delivery and performance of this Agreement will not violate the provision of any agreement to which Irorunan is a party or by which it is bound. 6.Insurance.Each year during the term of this Agreement in conjunction with a Race,Ironman shall provide the following insurance coverage's on the forms and in amounts not less than specified. a..In conjunction with a Race,Ironman agrees to secure and maintain a comprehensive general liability insurance policy with an "A"rated company or better in the following amounts:Commercial and General Liability $1,000,000 per occurrence;$2.000.000 Personal injury and advertising injury;$2.000.000 Products and Completed Operations Aggregate;and $2,000,000 General Aggregate. b.In conjunction with a Race,Ironman shall purchase and maintain,during the performance of this Agreement,at least the following minimum limits and types of insurance:(i)Automobile Liability,Bodily Injury and Property Damage insurance with combined single limits of $1,000,000 per occurrence;(ii)Statutory Worker's Compensation and Occupational Disease Disability Insurance;(iii)Umbrella or Excess Liability of $3,000,000 per occurrence over and above the General Liability (iv)Excess medical coverage for athletes. spectators and volunteers.Ironman shall furnish to Fountain Hills evidence of such insurance coverage in the fonn of Certificates of Insurance.Fountain Hills shall be named as an additional insured on all insurance policies only with respect to incidents related directly to the Race.All Certificates of Insurance shall provide evidence of the type of policies being provided. 7.Indemnification. a.Ironman agrees to indemnify,defend and hold harmless Fountain Hills and its officers,officials,employees,agents and volunteers from and against any and all claims, losses,liability,costs or expenses or damages of any nature,including reasonable attorney's fees (hereinafter collectively referred to as "Claims"),arising out of or in connection with the perfonnance of this Agreement by Ironman and which said Claims allegedly may result in liability to Fountain Hills,its officers,officials,employees,agents or volunteers and are due in whole or in part to the negligent act,omission,willful misconduct or other fault of Ironman its officers,officials,agents,employees,contractors andlor volunteers, b.Fountain Hills agrees to indemnify,defend and hold harmless Ironman and its officers,employees,agentsandvolunteersfromanyand all claims,liabilities,expensesor 9196,OO9\Jronmlln Contract.\lS,doc 2.2,2005-1 3 .~~~~~~,..,....T t"'r?r?717r?/7r? damages of any nature,including reasonable attorneys'fees,arising out of,or in any way connectedwith performanceof the Agreementby Fountain Hills,Fountain Hills's electiveor appointiveboards,officers,agents,employeesor volunteersand which said Claims are due in whole or in part to the negligent act,omission,willful misconductor other fault of Fountain Hills,its officers,officials,employees,agentsand/or volunteers. 8.Compliance with Laws.Fountain Hills and Ironman agree that,in the penonnance of their respective activities under this Agreement,each shall comply with all applicablelaws,statutes,ordinances,permits,rulesandregulationsrelatingto those activities. 9.Default.If any pany or parties should default in the performance of their respective obligations under this Agreement,the other party shall provide writt:ennotice of the default and the party in default shall have ten (10)days in which to cure the default.If a cure is not made,the party not in default shall be entitled to remedy the default using any right or remedy at law or equity which would otherwise be available to such party not in default, including bringing any suit or proceeding to enforce the provisions of this Agreement The prevailing party shall be entitled to their reasonable attorney fees and costs incurred in such action. 10.Termination.Any party may terminate this Agreement in whole or in part upon mutual agreement of the parties.Ironman shall also have the right to terminate this Agreement in accordance with Section I of this Agreement. 11.Independent Contractor Relationship.The relationship between Ironman and Fountain Hills is that of independent contractors and nothing contained in this Agreement shall be construed as establishing an employer/employee relationship,partnership or joint venture between Ironman and Fountain Hills.Except as may be provided for in this Agreement,each party acknowledges and agrees that it neither has nor will give the appearance or impression of having any legal authority to bind or commit the other party in any way. 12.Force Ma1eure.If,for any reason not contemplated by the parties to this Agreement,either party is prevented from penonning all its duties required under this Agreement by reason of Force Majeure,including but not limited to Acts of God,war or other hostilities.civil commotion,or domestic or foreign governmental acts which makes it impossible to penonn then the obligations of such parties during the period of such disability and for a reasonable time thereafter will be suspended.Ironman and Fountain Hills shall not be liable for any failure by them to conduct the Event by reason of Force Majeure 13.Notices.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 (i) delivered to the party at the address set forth below,(ii)deposited in the U.S.Mail,registered or certified,return receipt requested,to the address set forth below,(iii)given to a recognized and reputable overnight delivery service,to the address set forth below or (iv)delivered by facsimile transmission to the number set forth below: 9196.009lJronmAn ConIl'BCt.v5.doc 2.2.2005-1 4 If to Ironman:Ironman North America Triathlon,Inc. 4999 Pearl East Circle,Suite 301 Boulder,CO 80301 Attention:Graham Fraser Facsimile: If to Fountain Hills:Town of Fountain Hills P.O.Box 17958 Fountain Hills,AZ 85269 Anention:Town Manager Facsimile:(480)837-3145 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 (i)when delivered to the party,(ii)three business days after being placed in the U.S. Mail,properly addressed,with sufficient postage,(iii)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 (iv)when received by facsimile transmission during the nonna!business hours of the recipient. If a copy of a notice is also given to a party's counselor other recipient,the provisions above governing the date on which a notice is deemed to bave been received by a party shall mean and refer to the date on which the pany,and not its counselor other recipient to which a copy of the notice may be sent,is deemed to have received the notice. 14.Counterparts.This Agreementmay be executedin one or morecounrerpans,each of which shall be an original,but all of which taken togethershall constituteone and the same document. 15.Entire Aereement.This Agreement shall constitute the entire understanding between the panics with respect to the subject matter hereof and supersedes all prior agreements whether written or oral and cannot be modified or amended unless by a written instrument signed by the parties. 16.Amendments.Any amendments or alternative or supplementary provisions to this Agreement must be made in writing and duly executed by an authorized representative or agent of each of the parties hereto. 17.Governin£Law.This Agreement shall be governed by the laws of the Stale of Arizona and any litigation between the parties regarding this Agreement or the perfonnance of any of the obligations contained in this Agreement shall be initiated in Maricopa County, Arizona. 18.CooDeratioJl of the Parties.The parties agree to cooperate in good faith to reasonably complete the obligations set forth in this Agreement. 9196.009\Ironman ConlrllCt.V~.doc 2.2.200S-1 5 ~~~-I_~/_~ 19.ConfidentiaUtv.The Town agrees that the substantive tenns of this Agreement and all proprietary information concerning the business of the Race acquired in the course of or incidental to this Agreement,including but not limited to athlete listS,trade secrets or other commercial property of Ironman,will not be disclosed or communicated in any way by the Town during the tenn of this Agreement or thereafter without the consent of Ironman except as may be required by any applicable law,government order or regulation or by order of any court of competent jurisdiction. 20.Assi51:nment.No party may assign this Agreement or any rights herein without the express written consent of the other parties. 21.Severability.The invalidity of any provision contained herein or portion of a provision shall not affect the validity of any other provision contained herein or the remaining portion of the applicable provision. 22.SUcceSSQrsand Assigns.This Agreement shall inure to (the benefit of and be binding upon the parties hereto and their successors and permined assigns.A waiver of any breach hereunder shall not be deemed a waiver of any subsequent breach. 23.No Third Party Beneficiaries.This Agreementis solely for the benefit of the partiessigningit and does not create nor shall it be construedto createrights in otherparties.No partiesoutsideof thisAgreementmay enforcethetermsand conditionsof this Agreement. 24.Cancellation.This Agreement is subject to cancellation by Fountain Hills pursuant to ARIZ.REv.STAT.§38-511. 25.Captions.The captions and headings of the various sections of this Agreement are for convenience and identification only,and shall not be deemed to limit or define the contents of the respective sections. [SIGNATURES ON FOLLOWING PAGE] 91 96.009\Ironman ConlfllCt.vS.dcx: 2.2.2OQS-J 6 ~~~,,~..,~,,,,,~""~,."I~"T JO+.+.c+.+.C'r.lC'nn'nT CClCl7/7C1/7C1 IN WITNESS WHEREOF,the parties hereto have executed this Agreement as of ~('~~,2005. "IroDlI18o""Town" mONMANNORTHAMER~A TRIATHLON,INC.,a Delawarecorporation TOWN OF FOUNTAIN Hll...LS,an Arizona municipal corporation By:C~~I"'"'~r ~)f-I/\.. Name:C/C'~~'c.~ ~("P ';P,~ By: w.J.Nichols,Mayor ATTEST: Title: Bevelyn J.Bender,Town Clerk 9 I96.OO9\1ronmlln Contrsct.vS.d.o<:: 2.2.2005-1 7 ____________________________ _____________________________________ ____________________________ Town of Fountain Hills Town Council Agenda Action Form Meeting Type: Regular Meeting Meeting Date: February 3, 2005 Submitting Department: Parks and Recreation Contact Person: Bryan Hughes Consent: Regular: Requesting Action: Report Only: Type of Document Needing Approval (Check all that apply): Public Hearing Resolution Ordinance Agreement Emergency Clause Special Event Permit Special Consideration Intergovernmental Agreement Acceptance Grant Submission Liquor/Bingo License Application Plat Special Event Permit Special/Temp Use Permit Other: Education Public Fitness :Council Priority (Check Appropriate Areas) Library Services Public Safety Community Activities Economic Development Public Works Human Service Needs Parks & Recreation Town Elections Community Development Regular Agenda Wording: Consideration of approving a Special Event Permit with IronMan North America for an IronMan event through Town scheduled for Saturday, April 9, 2005 Fiscal Impact: NoStaff Recommendation: Approve $ Purpose of Item and Background Information: The Special Event Committee considered this item recently and supports the request. List All Attachments as Follows: Special Event Permit Type(s) of Presentation: Oral Signatures of Submitting Staff: Department Head Budget Review (if item not budgeted or exceeds budget amount) Town Manager � Overview Map #1 N � Overview Map #2 N � Overview Map #3 N � Overview Map #4 N � Overview Map #5 N � Overview Map #6 N EVENT NOTIFICATION For Tempe, Scottsdale, Salt River Pima Maricopa Indian Community Arizona Ironman April 9th, 2005 The race will consist of a 2.4-mile swim in Tempe Town Lake, a two loop 112-mile bike ride through Tempe, Salt River Pima Maricopa Indian Community, and Fountain Hills, and a 26.2 mile run, which consists of a two-loop course through Tempe and Phoenix. Approximately 2,100 athletes will participate in the race. Over 20,000 spectators are expected to view the race. The swim will begin at 7:00 a.m. and will be completed by 9:20 a.m. Tempe Beach Park will be closed during the swim portion of the event. The first cyclist will hit the bike course at Rio Salado Pkwy. and Mill Avenue at approximately 7:50 a.m. Cyclists are expected to be on the bike course until approximately 5:30 p.m. The first runner is expected to hit the bike path on Tempe Town Lake at 12:30p.m.and the last runner will finish at approximately Midnight. The course maps are attached to this notice. The Arizona Ironman looks forward to the opportunity of working with the local communities to insure this wonderful event has a positive impact on its business owners and citizens. Please! Strictly obey speed limit and all temporary traffic direction signs. For more information, Please contact our office at Local contact number For volunteer opportunities, go to: www.ironmanarizona.com P.O. Box 235150 Encinitas, CA. 92023-5150 www.ironmanarizona.com P.O. Box 235150 Encinitas, CA. 92023-5150 www.ironmanarizona.com Tempe to Fountain Hills Road Closures - Mill Avenue South Bound from Curry to 3rd - Rio Salado from Ash to Mill - McKellips from 92nd to Alma School Rd. - Rio Salado From Mill to McClintock Drive (single lane traffic in both directions). - McClintock Drive from Rio Salado to McKellips (open to South bound only) - McKellips from McClintock to 92nd St. (single lane of traffic in both east and west directions) - Alma School Rd. from McKellips to McDowell (open to North Bound turning East only on McDowell) - McDowell from Alma School Road to Beeline Hwy./Country Club (East bound traffic only – from N. bound Alma School Rd.) - Beeline Hwy. to Shea Blvd. (Single lane traffic North and South bound – reduced speed) P.O. Box 235150 Encinitas, CA. 92023-5150 www.ironmanarizona.com EVENT NOTIFICATION For Fountain Hills Arizona Ironman April 9th, 2005 The race will consist of a 2.4-mile swim in Tempe Town Lake, a two loop 112-mile bike ride through Tempe, Salt River Pima Maricopa Indian Community, and Fountain Hills, and a 26.2 mile run, which consists of a two-loop course through Tempe and Phoenix. Approximately 2,100 athletes will participate in the race. Over 20,000 spectators are expected to view the race. The swim will begin at 7:00 a.m. and will be completed by 9:20 a.m. Tempe Beach Park will be closed during the swim portion of the event. The first cyclist will hit the bike course at Rio Salado Pkwy. and Mill Avenue at approximately 7:50 a.m. Cyclists are expected to be on the bike course until approximately 5:30 p.m. The first runner is expected to hit the bike path on Tempe Town Lake at 12:30p.m.and the last runner will finish at approximately Midnight. The course maps are attached to this notice. The Arizona Ironman looks forward to the opportunity of working with the local communities to insure this wonderful event has a positive impact on its business owners and citizens. Please! Strictly obey speed limit and all temporary traffic direction signs. For more information, Please contact our office at Local contact number For volunteer opportunities, go to: www.ironmanarizona.com P.O. Box 235150 Encinitas, CA. 92023-5150 www.ironmanarizona.com P.O. Box 235150 Encinitas, CA. 92023-5150 www.ironmanarizona.com Fountain Hills Road Closures - Shea Blvd. – From Beeline Hwy. to Saguaro Blvd. (local business traffic only) - Saguaro Blvd. between Shea Blvd. and El Lago There will be two way bike traffic on the North Bound side of Saguaro Blvd. and two way vehicular traffic on the South bound side of Saguaro Blvd. Residents on the East side of Saguaro Blvd. should use (what main intersections should we use to cross bike traffic?) - El Lago from Saguaro Blvd. to Panorama (East bound traffic only exiting at N. Panorama to E. Rand?) - N. Panorama from El Lago to Saguaro Blvd. (South bound traffic only exiting at N. Panorama to E. Rand also?) - Saguaro Blvd. From Panorama to Fountain Hills Blvd. (Beeline bound traffic can use Grande. Fountain Hills bound traffic can cross Saguaro at?) - Fountain Hills Blvd. from Saguaro Blvd. to Glenbrook Blvd. (Beeline bound traffic can use Grande. Fountain Hills bound traffic can cross Saguaro at?) - Fountain Hills Blvd./McDowell Mtn. Rd. to McDowell State Park Entrance (closed or one way controlled traffic) P.O. Box 235150 Encinitas, CA. 92023-5150 www.ironmanarizona.com Notice to Rio Verde Residents Arizona Ironman April 9th, 2005 The race will consist of a 2.4-mile swim in Tempe Town Lake, a two loop 112- mile bike ride through Tempe, Salt River Pima Maricopa Indian Community, and Fountain Hills, and a 26.2 mile run, which consists of a two-loop course through Tempe and Phoenix. Approximately 2,100 athletes will participate in the race. Over 20,000 spectators are expected to view the race. Between the hours of 8:30a.m. and 4:30pm, 2,100 athletes will cycle a two loop course from Tempe to McDowell Mountain Park and back. During this time, there will be extensive delays on McDowell Mountain Road. Residents are asked to avoid using McDowell Mountain Road and use Rio Verde Drive/Dynamite Blvd. Peak delays will occur between 10am and 3pm. Please use extreme caution. Please! Strictly obey speed limit and all temporary traffic direction signs. For more information, Please contact our office at Local contact number For volunteer opportunities, go to: www.ironmanarizona.com P.O. Box 235150 Encinitas, CA. 92023-5150 www.ironmanarizona.com Notice to McDowell Mountain State Park Visitors The race will consist of a 2.4-mile swim in Tempe Town Lake, a two loop 112-mile bike ride through Tempe, Salt River Pima Maricopa Indian Community, and Fountain Hills, and a 26.2 mile run, which consists of a two-loop course through Tempe and Phoenix. Approximately 2,100 athletes will participate in the race. Over 20,000 spectators are expected to view the race. Between the hours of 8:30a.m. and 4:30pm, 2,100 athletes will cycle a two loop course from Tempe to McDowell Mountain Park and back. During this time, there will be extensive delays on McDowell Mountain Road. Cyclists will be entering and exiting the park from 8:30am until 4:30pm. Peak delays will be between 10am and 3pm. Please plan your travel into and out of the park accordingly. Please! Strictly obey speed limit and all temporary traffic direction signs. The swim will begin at 7:00 a.m. and will be completed by 9:20 a.m. Tempe Beach Park will be closed during the swim portion of the event. The first cyclist will hit the bike course at Rio Salado Pkwy. and Mill Avenue at approximately 7:50 a.m. Cyclists are expected to be on the bike course until approximately 5:30 p.m. The first runner is expected to hit the bike path on Tempe Town Lake at 12:30p.m.and the last runner will finish at approximately Midnight. For more information, Please contact our office at Local contact number For volunteer opportunities, go to: www.ironmanarizona.com P.O. Box 235150 Encinitas, CA. 92023-5150 www.ironmanarizona.com EVENT NOTIFICATION For Shadow Hills Mobile Home Park Arizona Ironman April 9th, 2005 The race will consist of a 2.4-mile swim in Tempe Town Lake, a two loop 112-mile bike ride through Tempe, Salt River Pima Maricopa Indian Community, and Fountain Hills, and a 26.2 mile run, which consists of a two-loop course through Tempe and Phoenix. Approximately 2,100 athletes will participate in the race. Over 20,000 spectators are expected to view the race. The swim will begin at 7:00 a.m. and will be completed by 9:20 a.m. Tempe Beach Park will be closed during the swim portion of the event. The first cyclist will hit the bike course at Rio Salado Pkwy. and Mill Avenue at approximately 7:50 a.m. Cyclists are expected to be on the bike course until approximately 5:30 p.m. The first runner is expected to hit the bike path on Tempe Town Lake at 12:30p.m.and the last runner will finish at approximately Midnight. Traffic on McKellips will be reduced to two way traffic. Right hand turns only allowed when exiting. Please! Strictly obey speed limit and all temporary traffic direction signs. For more information, Please contact our office at Local contact number For volunteer opportunities, go to: www.ironmanarizona.com P.O. Box 235150 Encinitas, CA. 92023-5150 www.ironmanarizona.com ____________________________ _____________________________________ ____________________________ Town of Fountain Hills Town Council Agenda Action Form Meeting Type: Regular Meeting Meeting Date: 2-03-05 Submitting Department: Economic Development Contact Person: Gracie Burton, Ec. Dev. Coor. Consent: Regular: Requesting Action: Report Only: Type of Document Needing Approval (Check all that apply): Public Hearing Resolution Ordinance Agreement Emergency Clause Special Event Permit Special Consideration Intergovernmental Agreement Acceptance Grant Submission Liquor/Bingo License Application Plat Special Event Permit Special/Temp Use Permit Other: Education Public Fitness :Council Priority (Check Appropriate Areas) Library Services Public Safety Community Activities Economic Development Public Works Human Service Needs Parks & Recreation Town Elections Community Development Finance Regular Agenda Wording: Consideration of approving the design contract with The WLB Group for the Avenue of the Fountains Enhancement Project. Staff Recommendation: Fiscal Impact: Yes $149,200.00 Purpose of Item and Background Information: The Avenue of the Fountains Enhancement Project went through the RFQ process for design services for the North side of the Avenue of the Fountains and for the design of the median to promote a pedestrian friendly entertainment venue for the community and the existing downtown area. Improvements and construction activities of the Avenue of the Fountains will be included in the proposed FY 06 budget. List All Attachments as Follows: Staff report, Professional Services Agreement for The WLB Group. Type(s) of Presentation: Verbal Signatures of Submitting Staff: Department Head Budget Review (if item not budgeted or exceeds budget amount) Town Manager / Designee document in 2-3-05.obd TOWN OF FOUNTAIN HILLS OFFICE OF DOWNTOWN BUSINESS DEVELOPMENT INTER OFFICE MEMO TO: Honorable Mayor and Town Council DT: February 3, 2005 FR: Gracie Burton, Economic Development RE: Avenue of the Fountains Enhancement Coordinator through Richard Turner, P&Z Project Design Contract Award to, The WLB Administrator Group SUMMARY: The Town of Fountain Hills advertised a Request for Qualifications (RFQ) for the Avenue of the Fountains Enhancement Project on October 8, 2004. The Town is seeking professional services to implement certain proposed improvements to the Avenue of the Fountains. The proposed improvements are intended to enhance the aesthetic and functional characteristics of the Avenue of the Fountains. The Town received eight responses to the RFQ with a deadline of November 8, 2004. A selection committee comprised of Tom Ward, Public Works Director, Kate Zannon, Planner, Gracie Burton, CEcD, John Poole, Interim P&Z Director and Mark Dohrmann, AIA, reviewed the RFQ’s and created a short list of three qualified consultants for further consideration. On November 29, 2004 an interview committee comprised of Julie Ghetti, CPA, Kate Zannon, Planner, Mark Dohrmann, AIA and Gracie Burton, CEcD interviewed, Sherman Group, Inc., MDG, Inc., and The WLB Group. Staff recommends award of the Avenue of the Fountains Enhancement Project to The WLB Group in the amount of $149,200.00. This design contract amount is included within the FY 04-05 budgeted amounts for “Downtown Development – Capital Expenditures”. It is anticipated that construction for this project will be included in the FY 05-06 budget. RECOMMENDATION: Staff recommends award of the Avenue of the Fountains Enhancement Project to The WLB Group in the amount of $149,200.00. ATTACHMENTS: Professional Services Agreement for signature 9196.022\Ave Fountains agt.v3.doc 1.26.2005-1 2 PROFESSIONAL SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND THE WLB GROUP, INC. THIS PROFESSIONAL SERVICES AGREEMENT (this “Agreement”) is made as of February ____, 2005, between the Town of Fountain Hills, an Arizona municipal corporation (the “Town”), and The WLB Group, Inc., an Arizona corporation (the “Contractor”). RECITALS A. The Town issued a Request for Qualifications on October 8, 2004 (the “RFQ”), for design and construction documents for the Town’s Avenue of the Fountains (the “Services”). The RFQ is on file in the office of the Town Clerk and is available for review. B. Contractor responded to the RFQ and the Town desires to enter into this Agreement with the Contractor for the Services. Contractor’s response to the RFQ is attached hereto as Exhibit A and incorporated herein by reference. AGREEMENT NOW, THEREFORE, for good and valuable consideration, the adequacy and sufficiency of which is hereby acknowledged, parties hereto agree as follows: 1. Term of Agreement. The initial term of this Agreement is for two years. The Town may renew the Agreement for up to two one-year periods, subject to an annual review and satisfactory negotiation of terms, the concurrence of the Town Council and the annual availability of appropriations. 2. Scope of Work. Contractor shall provide the Services as set forth in the Scope of Work, attached hereto as Exhibit B and incorporated herein by this reference. 3. Compensation. The Town shall pay Contractor a price not to exceed $149,200.00, as more particularly set forth in Exhibit C, attached hereto and incorporated herein by reference. 4. Payments. The Town shall pay the Contractor monthly, based upon work performed and completion to date, and upon submission and approval of invoices. All invoices shall document and itemize all work completed to date. The invoice statement shall include a record of time expended and work performed in sufficient detail to justify payment. Final payment will be made after a final bound report is delivered to and accepted by the Town. 5. Documents. All documents prepared and submitted to the Town pursuant to this Agreement shall be the property of the Town. 6. Contractor Personnel. Contractor shall provide adequate, experienced personnel, capable of and devote to the successful completion of the Services to be performed under this Agreement. Contractor agrees to assign specific individuals to key positions. Contractor agrees that, upon commencement of the Services to be performed under this Agreement, key personnel shall not be 9196.022\Ave Fountains agt.v3.doc 1.26.2005-1 3 removed or replaced prior without 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, 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. 7. Inspection; Acceptance. All work shall be subject to inspection, testing 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. 8. 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. 9. Indemnification. To the fullest extent permitted by law, the Contractor shall defend, indemnify and hold harmless the Town, its agents, representatives, officers, directors, officials and employees for, from and against all claims, damages, losses and expenses (including but not limited to attorneys’ fees, court costs and the cost of appellate proceedings) relating to, arising out of, or alleged to have resulted from the negligent acts, willful misconduct, errors, mistakes, omissions, work or services of the Contractor, its employees, agents, or any tier of subcontractors in the performance of this Agreement. Contractor’s duty to defend, hold harmless and indemnify the Town, its agents, representatives, officers, directors, officials and employees shall arise in connection with any claim, damage, loss or expense that is attributable to bodily injury, sickness, disease, death, or injury to, impairment or destruction of property, including loss of use resulting therefrom, caused by any negligent acts, willful misconduct, errors, mistakes, omissions, work or services in the performance of this Agreement of any employee of the Contractor or any tier of subcontractor or any other person for whose acts, errors, mistakes, omissions, work or services the Contractor may be legally liable. 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. 10. Insurance. 10.1 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 duly licensed by the State of Arizona 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. 9196.022\Ave Fountains agt.v3.doc 1.26.2005-1 4 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. 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. 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 professional liability 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. 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. Contractor 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, Contractor shall execute written agreement with Subcontractor containing the indemnification provisions set forth in this Section and insurance requirements set forth herein 9196.022\Ave Fountains agt.v3.doc 1.26.2005-1 5 protecting the Town and Contractor. Contractor shall be responsible for executing the agreement with Subcontractor and obtaining certificates of insurance verifying the insurance requirements. j. Evidence of Insurance. Prior to commencing any work or services under this Agreement, Contractor shall furnish the Town with certificate(s) of insurance, or formal endorsements as required by this Agreement, issued by Contractor’s 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. If a certificate of insurance is submitted as verification of coverage, the Town shall reasonably rely upon the certificate of insurance 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. Such certificates shall identify the contract work number and be sent to the Engineer. If any of the above-cited policies expire during the life of this Agreement, it shall be Contractor’s responsibility to forward renewal certificates within ten days after the renewal date containing all the aforementioned insurance provisions. Additionally certificates of insurance submitted without referencing a contract number will be subject to rejection and returned or discarded. Certificates of insurance 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 professional liability insurance, 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. 10.2 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 9196.022\Ave Fountains agt.v3.doc 1.26.2005-1 6 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 paragraph, such Excess insurance shall be “follow form” equal or broader in coverage scope then underlying insurance. b. Professional Liability. If this Agreement is the subject of any professional services or work, or if Contractor engages in any professional services or work adjunct or residual to performing the work under this Agreement, Contractor shall maintain Professional Liability insurance covering negligent errors and omissions arising out of the work or services performed by Contractor, or anyone employed by Contractor, or anyone for whose negligent acts, mistakes, errors and omissions Contractor is legally liable, with an insurance limit of $2,000,000 each claim and $2,000,000 all claims. In the event the Professional Liability insurance policy is written on a “claims made” basis, coverage shall extend for three years past completion and acceptance of the work or services, and Contractor shall be required to submit certificates of insurance evidencing proper coverage is in effect as required above. c. 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 paragraph, such Excess insurance shall be “follow form” equal or broader in coverage scope then underlying insurance. d. Workers’ Compensation Insurance. Contractor shall maintain Workers’ Compensation insurance to cover obligations imposed by federal and state statutes having jurisdiction of 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. 10.3 Cancellation and Expiration Notice. Insurance required herein shall not expire, be canceled, or materially changed without 30 days prior written notice to the Town. 11. Applicable Law. In the performance of this Agreement, Contractor shall abide by and conform to any and all laws of the United States, State of Arizona and 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. 9196.022\Ave Fountains agt.v3.doc 1.26.2005-1 7 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 Contractor of written notice by the Town. Upon termination for convenience, Contractor shall be paid for all undisputed services performed to the termination date. 12.2 For Cause. This Agreement may be terminated be either party upon 30 days’ written notice should the other party fail to substantially perform in accordance with this Agreement’s terms, through no fault of the party initiating the termination. In the event of such termination for cause, payment shall be made by the Town to the Contractor 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 Contractor 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 Contractor 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 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. 12.5 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 entertainment, gifts or otherwise, were offered or given by the Contractor or any agent or representative of the Contractor to any officer 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. 13. Miscellaneous. 13.1 Independent Contractor. The Contractor acknowledges that the Services provided under this Agreement are being provided as an independent contractor, not as an employee or agent of the Town. Both parties agree that this Agreement is nonexclusive and that Contractor is not prohibited from entering into other contracts nor prohibited from practicing its profession elsewhere. 13.2 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 for whom the Contractor is responsible remains in compliance with of all rules, regulations, ordinances, statutes or laws affecting the Services, including the following: (i) existing and future Town and County ordinances and regulations, (ii) state and federal laws and (iii) Occupational Safety and Health Administration (“OSHA”) standards. 9196.022\Ave Fountains agt.v3.doc 1.26.2005-1 8 13.3 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. 13.4 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. 13.5 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. 13.6 Relationship of the Parties. 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 is advised that taxes or Social Security payments will not be withheld from any Town payments issued hereunder and that the Contractor should make arrangements to directly pay such expenses, if any. 13.7 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 Contact. 13.8 Assignment. No right or interest in this Agreement shall be assigned by Contractor without prior, written permission of the Town and no delegation of any duty of Contractor shall be made without prior, written permission of the Town. 13.9 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. 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 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. 13.11 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. 9196.022\Ave Fountains agt.v3.doc 1.26.2005-1 9 13.12 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 (i) delivered to the party at the address set forth below, (ii) deposited in the U.S. Mail, registered or certified, return receipt requested, to the address set forth below, (iii) given to a recognized and reputable overnight delivery service, to the address set forth below or (iv) delivered by facsimile transmission to the number set forth below: If to the Town: Town of Fountain Hills 16836 E. Palisades Boulevard Fountain Hills, Arizona 85268 Facsimile: 480-837-3145 Attn: Tim Pickering, Town Manager With copy to: JORDEN BISCHOFF MCGUIRE ROSE & HISER, P.L.C. 7272 E. Indian School Road, Suite 205 Scottsdale, Arizona 85251 Facsimile: 480-505-3901 Attn: Andrew J. McGuire, Esq. 9196.022\Ave Fountains agt.v3.doc 1.26.2005-1 10 If to Contractor: The WLB Group, Inc 333 E Osborn Rd, Suite 380 Phoenix, AZ 85012 Facsimile: 602-279-7810 Attn: James R Burke, PE, RLS, Director of Operations, Phoenix With a Copy to: The WLB Group, Inc 4444 E Broadway Boulevard Tucson, AZ 85711 Facsimile: 520-881-7492 Attn: John Lucas, CFO 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 (i) when delivered to the party, (ii) three business days after being placed in the U.S. Mail, properly addressed, with sufficient postage, (iii) 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 (iv) 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. 13.13. Applicable Law; Venue. In the performance of this Contract, Contractors shall abide by and conform to any and all laws of the United States, State of Arizona and 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 Contract. 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 the State of Arizona. 13.14 Confidentiality of Records. 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 form 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 the 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 on an as-need basis for the performance of the duties under this Agreement. [SIGNATURES ON FOLLOWING PAGE] 9196.022\Ave Fountains agt.v3.doc 1.26.2005-1 11 IN WITNESS WHEREOF, the Town and the Contractor have caused this Agreement to be duly executed as of the day, month and year first above written. “Town” “Contractor” TOWN OF FOUNTAIN HILLS, an Arizona THE WLB GROUP, INC., an municipal corporation Arizona corporation By: W. J. Nichols, Mayor James R. Burke, PE, RLS, Director of Operations, Phoenix ATTEST: Bevelyn J. Bender, Town Clerk 9196.022\Ave Fountains agt.v3.doc 1.26.2005-1 12 EXHIBIT A [Contractor’s Response to the RFQ] See following pages. 9196.009\Ave. Fountains RFQ.doc 139.28.2004 EXHIBIT B [Scope of Work] See following pages. 9196.009\Ave. Fountains RFQ.doc 149.28.2004 EXHIBIT C [Price Sheet] See following pages. 9196.009\Ave. Fountains RFQ.doc 159.28.2004 REVISED 20 min the Fountains enhancement project. 10.) COUNCIL ASSESSMENT AND REVIEW of the meeting to identify procedural strengths and weaknesses and discuss possible improvements for future meetings. 11.) COUNCIL DISCUSSION/DIRECTION to the Town Manager. a. 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: NONE 12.) SUMMARY OF COUNCIL REQUESTS by Town Manager. 7:35 p.m. 13.) ADJOURNMENT. DATED this 31ST day of January, 2005 Bevelyn J. Bender, Town Clerk The Town of Fountain Hills endeavors to make all public meetings accessible to persons with disabilities. Please call 837-2003 (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. Document in 2-3-05.obd Page 3 of 3 Last printed 2/2/2005 1:16 PM