HomeMy WebLinkAbout120202P
NOTICE OF THE EXECUTIVE AND
REGULAR SESSIONS OF
THE FOUNTAIN HILLS TOWN COUNCIL
TIME: 5:30 P.M. – EXECUTIVE SESSION
(Executive Session will be held in the Fountain Conference Room - 2nd floor)
6:30 P.M. - REGULAR SESSION
WHEN: THURSDAY, FEBRUARY 2, 2012
WHERE: FOUNTAIN HILLS COUNCIL CHAMBERS
16705 E. AVENUE OF THE FOUNTAINS, FOUNTAIN HILLS, AZ
Councilmembers of the Town of Fountain Hills will attend either in person o r by telephone conference call; a quorum of the
Town’s various Commissions or Boards may be in attendance at the Council meeting.
Notice is hereby given that pursuant to A.R.S. § 1-602.A.9, subject to certain specified statutory exceptions, parents have a
right to consent before the State or any of its political subdivisions make a video or audio recording of a minor child.
Meetings of the Town Council are audio and/or video recorded and, as a result, proceedings in which children are present may
be subject to such recording. Parents, in order to exercise their rights may either file written consent with the Town Clerk to
such recording, or take personal action to ensure that their child or children are not present when a recording may be made. If
a child is present at the time a recording is made, the Town will assume that the rights afforded parents pursuant to A.R.S. § 1-
602.A.9 have been waived.
PROCEDURE FOR ADDRESSING THE COUNCIL
Anyone wishing to speak before the Council must fill out a speaker’s card and submit it to the Town
Clerk prior to Council discussion of that Agenda item. Speaker Cards are located in the Council
Chamber Lobby and near the Clerk’s position on the dais.
Speakers will be called in the order in which the speaker cards were rec eived 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 Councilmembers. Speakers’ statements should not be repetitive. If a speaker
chooses not to speak when called, the speaker will be deemed to have waived his or her
opportunity to speak on the matter. Speakers may not (i) reserve a portion of their time for a
later time or (ii) transfer any portion of their time to another speaker.
If there is a Public Hearing, please submit the speaker card to speak to that issue during the
Public Hearing.
Individual speakers will be allowed three contiguous minutes to address the Council. Time limits
may be waived by (i) discretion of the Town Manager upon request by the speaker not less than
24 hours prior to a Meeting, (ii) consensus of the Council at 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.
Mayor Jay T. Schlum
Councilmember Dennis Brown Councilmember Tait D. Elkie
Councilmember Dennis Contino Councilmember Cassie Hansen
Vice Mayor Ginny Dickey Councilmember Henry Leger
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EXECUTIVE SESSION AGENDA
CALL TO ORDER – Mayor Jay T. Schlum
1. ROLL CALL AND VOTE TO GO INTO EXECUTIVE SESSION: Pursuant to Ariz.
Rev. Stat. §38-431.03(A)(3), discussion or consultation for legal advice with the attorney or
attorneys of the public body (specifically, implementation of medical marijuana program).
2. ADJOURNMENT.
REGULAR SESSION AGENDA
CALL TO ORDER AND PLEDGE OF ALLEGIANCE – Mayor Jay T. Schlum
INVOCATION – Susan Ducot, Baha’i Faith Community
ROLL CALL – Mayor Jay T. Schlum
MAYOR’S REPORT
i) The Mayor will read a proclamation declaring February 11, 2012, as “Public Safety
Day”.
ii) The Mayor will read a proclamation declaring February 9, 2012, “Pony Express
Day”.
SCHEDULED PUBLIC APPEARANCES/PRESENTATIONS
i) PRESENTATION by the Fountain Hills Chamber of Commerce Tourism Division
on FY11-12 disbursement of funds for tourism.
CALL TO THE PUBLIC
Pursuant to A.R.S. §38-431-01(G), public comment is permitted (not required) on matters not listed
on the agenda. Any such comment (i) must be within the jurisdiction of the Council and (ii) is
subject to reasonable time, place, and manner restrictions. The Council will not discuss or take
legal action on matters raised during “Call to the Public” unless the matters are properly noticed for
discussion and legal action. At the conclusion of the call to the public, individual Councilmembers
may (i) respond to criticism, (ii) ask staff to review a matter or (iii) ask that the matter be placed on
a future Council agenda.
CONSENT AGENDA ITEMS
1. CONSIDERATION of approving the TOWN COUNCIL MEETING MINUTES from
January 19, 2012.
2. CONSIDERATION of approving the LIQUOR LICENSE APPLICATION submitted by
Mohinder Singh Manhas, Owner/Agent of NANAK 786 LLC/DBA Adobe Wine & Liquors,
located at 16726 East El Pueblo, Fountain Hills, AZ. This is for a series 09 license (Liquor
Store).
Z:\Council Packets\2012\R2-2-12\120202A.docx Last printed 1/26/2012 5:26 PM Page 3 of 4
3. CONSIDERATION of approving a SPECIAL EVENT LIQUOR LICENSE APPLICATION
submitted by Robert D. Schmitz, representing the American Legion Post 58 located at 16837
E. Parkview, Fountain Hills, AZ, for the purpose of a fund raiser. Event to be held at 16837
E. Parkview, scheduled to be held on Friday, Saturday, and Sunday, February 24, 25, 26,
2012, from 9:00 AM to 12:00 PM.
4. CONSIDERATION of approving a SPECIAL EVENT LIQUOR LICENSE APPLICATION
submitted by Robert D. Schmitz, representing the American Legion Post 58, located at 16837
E. Parkview, Fountain Hills, AZ, for the purpose of a fund raiser. Event to be held at 16837
E. Parkview, scheduled to be held on Saturday, February 18, 2012, from 9:00 AM to 12:00
PM.
5. CONSIDERATION of approving a SPECIAL EVENT LIQUOR LICENSE APPLICATION
submitted by Robert D. Schmitz, representing the American Legion Post 58, located at 16837
E. Parkview, Fountain Hills, AZ, for the purpose of a fund raiser. Event to be held at 16837
E. Parkview, scheduled to be held on Saturday, March 17, 2012, from 9:00 AM to 12:00 PM.
6. CONSIDERATION of approving a SPECIAL EVENT LIQUOR LICENSE APPLICATION
submitted by Robert D. Schmitz, representing the American Legion Post 58, located at 16837
E. Parkview, Fountain Hills, AZ, for the purpose of a fund raiser. Event to be held at 16837
E. Parkview, scheduled to be held on Saturday, March 24, 2012, from 9:00 AM to 12:00 PM.
7. CONSIDERATION of approving a SPECIAL EVENT LIQUOR LICENSE APPLICATION
submitted by Gisela H. Navone, representing the American Legion Auxiliary Fountain Hills
Unit 58, located at 16837 E. Parkview, Fountain Hills, AZ, for the purpose of a fund raiser.
Event to be held at 16837 E. Parkview, scheduled to be held on Friday and Saturday, February
24 and 25, 2012, from 9:00 AM to 6 PM., and Sunday, February 26, 2012, from 10:00 AM to
6:00 PM.
8. CONSIDERATION of accepting the AREA AGENCY ON AGING CONTRACT for
services from July 1, 2011, and ending June 30, 2012.
REGULAR AGENDA ITEMS
9. CONSIDERATION of a POSSIBLE TRANSFER OF BUDGET AUTHORITY, in the
amount of $6,900, from the Capital Projects Fund to the Public Art Fund, for appropriation of
public art in FY11-12.
10. CONSIDERATION of an EXPENDITURE to Precision Electric Company, in the amount of
$43,805.17, for the repair and replacement of the third and final pump and motor for the
fountain at Fountain Park.
11. PUBLIC HEARING to receive comments on a proposed CONCEPT PLAN for proposed
retail/office/restaurant uses in two 42’ tall buildings and to allow a 45’ tall theatre building
within the Town Center Commercial Zoning District (TCCD ) at 16725 E. Verde River Drive.
(Case #CP 2011-06)
12. CONSIDERATION of a proposed CONCEPT PLAN for proposed retail/office/restaurant
uses in two 42’ tall buildings and to allow a 45’ tall theatre building within the Town Center
Commercial Zoning District (TCCD ) at 16725 E. Verde River Drive. (Case #CP 2011-06)
Z:\Council Packets\2012\R2-2-12\120202A.docx Last printed 1/26/2012 5:26 PM Page 4 of 4
13. CONSIDERATION of RESOLUTION 2012-01, adopting a proposed development
agreement relating to public improvements and retail/office/restaurant/theater uses on property
located at 16725 E. Verde River Drive. (Cases #CP 2011-06 & #DA 2011-02)
14. CONSIDERATION WITH POSSIBLE DIRECTION regarding CIVIL PENALTIES for
Town Code violations.
15. CONSIDERATION of an EMPLOYMENT AGREEMENT between the Town of Fountain
Hills and Kenneth W. Buchanan for the position of Town Manager.
16. COUNCIL DISCUSSION/DIRECTION to the Interim Town Manager/Finance Director
Julie Ghetti.
Items listed below are related only to the propriety of (i) placing such items on a future
agenda for action or (ii) directing staff to conduct further research and report back to the
Council:
A. NONE.
17. SUMMARY of Council requests and REPORT ON RECENT ACTIVITIES by the Interim
Town Manager/Finance Director Julie Ghetti.
18. ADJOURNMENT.
DATED this 26th day of January 2012.
_____________________________________
Bevelyn J. Bender, Town Clerk
The Town of Fountain Hills endeavors to make all public meetings accessible to persons with disabilities. Please call
480-816-5100 (voice) or 1-800-367-8939 (TDD) 48 hours prior to the meeting to request a reasonable accommodation to
participate in this meeting or to obtain agenda information in large print format. Supporting documentation and staff
reports furnished the Council with this agenda are available for review in the Clerk’s office.
NOTICE OF THE EXECUTIVE AND
REGULAR SESSIONS OF
THE FOUNTAIN HILLS TOWN COUNCIL
TIME: 5:30 P.M. – EXECUTIVE SESSION
(Executive Session will be held in the Fountain Conference Room - 2nd floor)
6:30 P.M. - REGULAR SESSION
WHEN: THURSDAY, FEBRUARY 2, 2012
WHERE: FOUNTAIN HILLS COUNCIL CHAMBERS
16705 E. AVENUE OF THE FOUNTAINS, FOUNTAIN HILLS, AZ
Councilmembers of the Town of Fountain Hills will attend either in person or by telephone conference call; a quorum of the
Town’s various Commissions or Boards may be in attendance at the Council meeting.
Notice is hereby given that pursuant to A.R.S. § 1-602.A.9, subject to certain specified statutory exceptions, parents have a
right to consent before the State or any of its political subdivisions make a video or audio recording of a minor child.
Meetings of the Town Council are audio and/or video recorded and, as a result, proceedings in which children are present may
be subject to such recording. Parents, in order to exercise their rights may either file written consent with the Town Clerk to
such recording, or take personal action to ensure that their child or children are not present when a recording may be made. If
a child is present at the time a recording is made, the Town will assume that the rights afforded parents pursuant to A.R.S. § 1-
602.A.9 have been waived.
PROCEDURE FOR ADDRESSING THE COUNCIL
Anyone wishing to speak before the Council must fill out a speaker’s card and submit it to the Town
Clerk prior to Council discussion of that Agenda item. Speaker Cards are located in the Council
Chamber Lobby and near the Clerk’s position on the dais.
Speakers will be called in the order in which the speaker cards were received either by the Clerk or
the Mayor. At that time, speakers should stand and approach the podium. Speakers are asked to
state their name prior to commenting and to direct their comments to the Presiding Officer and
not to individual Councilmembers. Speakers’ statements should not be repetitive. If a speaker
chooses not to speak when called, the speaker will be deemed to have waived his or her
opportunity to speak on the matter. Speakers may not (i) reserve a portion of their time for a
later time or (ii) transfer any portion of their time to another speaker.
If there is a Public Hearing, please submit the speaker card to speak to that issue during the
Public Hearing.
Individual speakers will be allowed three contiguous minutes to address the Council. Time limits
may be waived by (i) discretion of the Town Manager upon request by the speaker not less than
24 hours prior to a Meeting, (ii) consensus of the Council at 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.
Mayor Jay T. Schlum
Councilmember Dennis Brown Councilmember Tait D. Elkie
Councilmember Dennis Contino Councilmember Cassie Hansen
Vice Mayor Ginny Dickey Councilmember Henry Leger
Z:\Council Packets\2012\R2-2-12\120202A.docx Last printed 1/26/2012 5:26 PM Page 2 of 4
EXECUTIVE SESSION AGENDA
CALL TO ORDER – Mayor Jay T. Schlum
1. ROLL CALL AND VOTE TO GO INTO EXECUTIVE SESSION: Pursuant to Ariz.
Rev. Stat. §38-431.03(A)(3), discussion or consultation for legal advice with the attorney or
attorneys of the public body (specifically, implementation of medical marijuana program).
2. ADJOURNMENT.
REGULAR SESSION AGENDA
CALL TO ORDER AND PLEDGE OF ALLEGIANCE – Mayor Jay T. Schlum
INVOCATION – Susan Ducot, Baha’i Faith Community
ROLL CALL – Mayor Jay T. Schlum
MAYOR’S REPORT
i) The Mayor will read a proclamation declaring February 11, 2012, as “Public Safety
Day”.
ii) The Mayor will read a proclamation declaring February 9, 2012, “Pony Express
Day”.
SCHEDULED PUBLIC APPEARANCES/PRESENTATIONS
i) PRESENTATION by the Fountain Hills Chamber of Commerce Tourism Division
on FY11-12 disbursement of funds for tourism.
CALL TO THE PUBLIC
Pursuant to A.R.S. §38-431-01(G), public comment is permitted (not required) on matters not listed
on the agenda. Any such comment (i) must be within the jurisdiction of the Council and (ii) is
subject to reasonable time, place, and manner restrictions. The Council will not discuss or take
legal action on matters raised during “Call to the Public” unless the matters are properly noticed for
discussion and legal action. At the conclusion of the call to the public, individual Councilmembers
may (i) respond to criticism, (ii) ask staff to review a matter or (iii) ask that the matter be placed on
a future Council agenda.
CONSENT AGENDA ITEMS
1. CONSIDERATION of approving the TOWN COUNCIL MEETING MINUTES from
January 19, 2012.
2. CONSIDERATION of approving the LIQUOR LICENSE APPLICATION submitted by
Mohinder Singh Manhas, Owner/Agent of NANAK 786 LLC/DBA Adobe Wine & Liquors,
located at 16726 East El Pueblo, Fountain Hills, AZ. This is for a series 09 license (Liquor
Store).
Z:\Council Packets\2012\R2-2-12\120202A.docx Last printed 1/26/2012 5:26 PM Page 3 of 4
3. CONSIDERATION of approving a SPECIAL EVENT LIQUOR LICENSE APPLICATION
submitted by Robert D. Schmitz, representing the American Legion Post 58 located at 16837
E. Parkview, Fountain Hills, AZ, for the purpose of a fund raiser. Event to be held at 16837
E. Parkview, scheduled to be held on Friday, Saturday, and Sunday, February 24, 25, 26,
2012, from 9:00 AM to 12:00 PM.
4. CONSIDERATION of approving a SPECIAL EVENT LIQUOR LICENSE APPLICATION
submitted by Robert D. Schmitz, representing the American Legion Post 58, located at 16837
E. Parkview, Fountain Hills, AZ, for the purpose of a fund raiser. Event to be held at 16837
E. Parkview, scheduled to be held on Saturday, February 18, 2012, from 9:00 AM to 12:00
PM.
5. CONSIDERATION of approving a SPECIAL EVENT LIQUOR LICENSE APPLICATION
submitted by Robert D. Schmitz, representing the American Legion Post 58, located at 16837
E. Parkview, Fountain Hills, AZ, for the purpose of a fund raiser. Event to be held at 16837
E. Parkview, scheduled to be held on Saturday, March 17, 2012, from 9:00 AM to 12:00 PM.
6. CONSIDERATION of approving a SPECIAL EVENT LIQUOR LICENSE APPLICATION
submitted by Robert D. Schmitz, representing the American Legion Post 58, located at 16837
E. Parkview, Fountain Hills, AZ, for the purpose of a fund raiser. Event to be held at 16837
E. Parkview, scheduled to be held on Saturday, March 24, 2012, from 9:00 AM to 12:00 PM.
7. CONSIDERATION of approving a SPECIAL EVENT LIQUOR LICENSE APPLICATION
submitted by Gisela H. Navone, representing the American Legion Auxiliary Fountain Hills
Unit 58, located at 16837 E. Parkview, Fountain Hills, AZ, for the purpose of a fund raiser.
Event to be held at 16837 E. Parkview, scheduled to be held on Friday and Saturday, February
24 and 25, 2012, from 9:00 AM to 6 PM., and Sunday, February 26, 2012, from 10:00 AM to
6:00 PM.
8. CONSIDERATION of accepting the AREA AGENCY ON AGING CONTRACT for
services from July 1, 2011, and ending June 30, 2012.
REGULAR AGENDA ITEMS
9. CONSIDERATION of a POSSIBLE TRANSFER OF BUDGET AUTHORITY, in the
amount of $6,900, from the Capital Projects Fund to the Public Art Fund, for appropriation of
public art in FY11-12.
10. CONSIDERATION of an EXPENDITURE to Precision Electric Company, in the amount of
$43,805.17, for the repair and replacement of the third and final pump and motor for the
fountain at Fountain Park.
11. PUBLIC HEARING to receive comments on a proposed CONCEPT PLAN for proposed
retail/office/restaurant uses in two 42’ tall buildings and to allow a 45’ tall theatre building
within the Town Center Commercial Zoning District (TCCD ) at 16725 E. Verde River Drive.
(Case #CP 2011-06)
12. CONSIDERATION of a proposed CONCEPT PLAN for proposed retail/office/restaurant
uses in two 42’ tall buildings and to allow a 45’ tall theatre building within the Town Center
Commercial Zoning District (TCCD ) at 16725 E. Verde River Drive. (Case #CP 2011-06)
Z:\Council Packets\2012\R2-2-12\120202A.docx Last printed 1/26/2012 5:26 PM Page 4 of 4
13. CONSIDERATION of RESOLUTION 2012-01, adopting a proposed development
agreement relating to public improvements and retail/office/restaurant/theater uses on property
located at 16725 E. Verde River Drive. (Cases #CP 2011-06 & #DA 2011-02)
14. CONSIDERATION WITH POSSIBLE DIRECTION regarding CIVIL PENALTIES for
Town Code violations.
15. CONSIDERATION of an EMPLOYMENT AGREEMENT between the Town of Fountain
Hills and Kenneth W. Buchanan for the position of Town Manager.
16. COUNCIL DISCUSSION/DIRECTION to the Interim Town Manager/Finance Director
Julie Ghetti.
Items listed below are related only to the propriety of (i) placing such items on a future
agenda for action or (ii) directing staff to conduct further research and report back to the
Council:
A. NONE.
17. SUMMARY of Council requests and REPORT ON RECENT ACTIVITIES by the Interim
Town Manager/Finance Director Julie Ghetti.
18. ADJOURNMENT.
DATED this 26th day of January 2012.
_____________________________________
Bevelyn J. Bender, Town Clerk
The Town of Fountain Hills endeavors to make all public meetings accessible to persons with disabilities. Please call
480-816-5100 (voice) or 1-800-367-8939 (TDD) 48 hours prior to the meeting to request a reasonable accommodation to
participate in this meeting or to obtain agenda information in large print format. Supporting documentation and staff
reports furnished the Council with this agenda are available for review in the Clerk’s office.
Fountain Hills Visitors Bureau
Mid-Year Report 2011-12
Overview
A division of the Fountain Hills Chamber of
Commerce; partnership with Town of FH
Providing tourism marketing services for the
Town of Fountain Hills and surrounding area
Advisory council oversight – stakeholders,
businesses and organizations
Goals & Objectives
The mission of the Bureau is to stimulate
business vitality and enhance the quality of life
within the community.
The Bureau’s goal is to attract both high-value
overnight visitors, as well as day-trip visitors.
Primary objectives:
– Enhance the local economy in order to help ensure a
sustainable business and employment environment.
– Generate vitality to attract new business development
and new residents.
Strategies & Programs
Attract visitors from these niche markets:
–Events, Arts and Entertainment
–Desert Experience / Outdoor Adventure
–Golf
–Southwest and Native American Culture
–Weddings
New Initiatives – Brand Identity
Using the services of a brand development
firm, the Bureau refreshed the brand
positioning and graphic representation of the
Fountain Hills area destination.
New Initiatives- Website
A key element of the brand initiative was the
need for a new FH destination web site.
Site under construction – launch February
2012
Print Advertising - Highlights
Phoenix Magazine – November 2011 (Best
Places to Live), Special Advertising Section –
7 pages.
Paid Circulation (monthly) – 74,000 – with
pass along this equates to 185,000 readers.
Golf Magazine – November 2011, ad,
editorial, e-blast. Circ. 400,000 – with pass
along equates to 1,000,000 readers.
Advertising -Highlights
Arizona Key Magazine - multi-page
cooperative advertising section. Monthly
circulation 30,000 to hotels, CVBs,
concierge.
High traffic ArizonaKey.com and social media
outreach. Rich media package: 2 minute HD
video, 3 virtual tours, digital slideshow,
mobile application, link to Visitor Bureau site
Other Advertising
Valley Guide – support local retailers
advertising. 3X per year, 70,000 per issue
(pass along 210,00 per issue)
AZ Magazine – monthly of AZ Republic
40,000 circ.
Scottsdale Republic – November 2011, ¼
page, 40,000 circ.
Phoenix Map – Available at visitor oriented
locations - 280,000 distributed
Publications
Visitors Guide 2012
Dining Guide
Calendar of Events
Bridal Guide
Visitors Guide
40,000 distributed in 400+
visitor related locations
throughout the Valley.
Dining Guide
Complete guide to
restaurants and
accommodations in FH, Ft.
McDowell, The Verdes.
Available at Visitors
Center, Kiosks, realtors,
downloadable and linked to
websites.
Calendar of Events
Monthly visitor oriented
events
Bridal Guide
Updated to downloadable
pdf format
Comprehensive listing of
wedding venues and
services
Niche Markets - Golf
Creation and branding of Sonoran Desert
Golf Trail
Co-op effort with golf courses, AZ Trails
Travel, Golf Zoo
Sonorandesertgolftrail.com
Niche Markets - Weddings
Establish Fountain Park
as a premier outdoor
wedding site & Center
for receptions
AZ Weddings Sites
and Services – cover
September 2011, full
page July ’11 – June
‘12
Niche Markets – Weddings
finestweddingsites.com
landing page
qualified leads 40,
general leads monthly
Bridal Fashion Debut –
January Show –
qualified leads, visibility
Bridal Guide
Social Media/TripAdvisor.com
Sponsor page,
combines user content
with VB content.
Increases control and
allows addition of
events, mkt. materials
Annual subscription
Social Media/On-line Marketing
VB Facebook page, Twitter
Arizonakey.com
AZmeetingsandevents.com
ArizonaCollectorsGuide.com
ValleyGuide.com
Finestweddingsites.com
A-Position.com
Sonoran Desert Golf Trail
GolfZoo.com
Arizonagolfandlodging.com
TripAdvisor.com
Phoenixrelocationguide.com
Meetings & Conventions
International Trails Symposium – April 2013
800 attendees
All area hotels filled – Radisson HQ
Americantrails.org – 1,000,000 hits per
month
Scope of Work Deliverables
Necessary staffing
Publish Visitors Guide
Media Relations program - $200,000 value
–$125,000 media generated year-to-date
Grant funding – Prop 302, Prop 202
–Prop 202 - $45,000
–Prop 302 - $8,000
Develop new image/branding campaign
Develop new FH destination web site
Advertising - print & on-line, min. 5M impressions
–6.8M impressions to date (estimated)
Produce niche market brochures
–FH Dining Guide
–FH Calendar of Events
–FH Wedding Planning Guide
Other/Trade Marketing and Affiliations
–International Trails Symposium 2013
–Select Trade shows
Thank You for Your Support!
VISITORS BUREAU
FY 2011-2012 MID-YEAR REPORT - TOURISM
For July - December 2011
Overview
The Fountain Hills Visitors Bureau (“Bureau”) is a division of the Fountain Hills Chamber of
Commerce (“Chamber”), providing tourism marketing services for the joint destination of the
Town of Fountain Hills (“Town”) and the Fort McDowell Yavapai Nation (“FMYN”). Its
principle sources of operating funds are the Town, the FMYN and their respective businesses and
enterprises, the Chamber and the State of Arizona Office of Tourism. Its operations are guided
by an advisory council consisting of a range of stakeholder businesses and organizations which
meets bi-monthly.
Mission, Goals & Objectives
The mission of the Bureau, in keeping with the mission of the Chamber, is to stimulate business
vitality and enhance the quality of life within the community by attracting visitors to augment the
spending of residents at local businesses, as well as to entice business and residential relocation to
Fountain Hills through quality visitor experience.
The Bureau‟s goal is to attract both high-value, longer haul overnight visitors, ideally those
needing commercial accommodations, as well as day-trip visitors from the marketing area that
more immediately surrounds the destination. Its primary objective is to enhance the local
economy in order to help ensure a sustainable business and employment environment, as well as
to entice for new business development within and beyond, the tourism sector.
Strategies and Programs
Because of the destination‟s outstanding attributes in certain visitor interest areas, the Bureau
focuses its efforts on attracting visitors in the following niche-oriented markets:
Events, Arts and Entertainment
Desert Experience / Outdoor Adventure
Golf
Southwest and Native American Culture
Weddings
Marketing to these sectors of potential visitors involves implementing a cost-effective integrated
plan for active public relations, social media outreach and advertising programs in the
local/regional market, as well as in the statewide and, to some degree, national and international
markets.
The Bureau also works to develop interest in the destination through trade associations that
generate group travel – both for leisure travelers (group tours), as well as for meetings,
conferences and events that the destination is able to accommodate within its presently available
facilities.
Monitoring Procedures
The Bureau monitors its productivity utilizing various industry-standard performance measures
for media marketing and web site activity. These are detailed in the scope of services adherence
portion of the report that follows.
FY 2011-12 Visitors Bureau Program Highlights – Mid Year
New Initiatives – Branding and Web Site
During the first half of the 2011-2012 fiscal year, in addition to conducting its traditional
destination marketing programs in the primary functions of media advertising, public relations,
special promotions, etc, the Bureau also conducted an initiative to refresh the branding of
Fountain Hills and its environs as a destination community, and in conjunction with this has
initiated the development of a new destination web site.
Brand Development
The Bureau engaged the services of the brand development company, Brand Gravity. The
Brand Gravity team immersed themselves in the destination to determine initial foundational
brand statements and develop rationale for recommended brand positioning.
They then developed visual boards including color palates, textures, sample imagery, and key
words to be used in visual messaging for representation of the destination in marketing for
tourism, as well as for economic development and community enrichment. A new
destination mark/logo was then developed, as well as sample tools (ads and website home
page design) for transporting the images, language and personality of the communications
components.
Destination Web Site
As a key component of the new branding initiative, the Bureau has undertaken the
development of a state-of-the-art new Fountain Hills destination web site. The goals in the
development of this new site are to showcase the refreshed destination brand within a unique
and modern on-line presence that effectively communicates with key target markets,
presenting the features and benefits of Fountain Hills in an enticing and professionally
respectable manner. It is intended to provide strategic lead generating opportunities for
tourism, economic development and community engagement, and potentially revenue
generating opportunities for stakeholders as well. The site is to be presented as a
collaborative partnership of the Town of Fountain Hills and the Fountain Hills Chamber of
Commerce. It is anticipated that the site will launch as www.experiencefountainhills.org. in
February of 2012.
Print Advertising
Special advertising sections were a primary focus of the Bureau‟s print advertising program
during the first half of the 2011-12 fiscal year. The destination was featured with multi-page
sections in both the November issues of PHOENIX Magazine, and GOLF Magazine.
The PHOENIX Magazine placement, a seven-page advertorial, presented the many features and
amenities of the destination. The magazine has a paid subscriber distribution of 74,000 and
claims a monthly readership of nearly 200,000, and is considered a premier upscale publication in
the region. Obtaining this advertorial also provided for Fountain Hills‟ businesses to advertise in
the section at 50% off the normal advertising rate for the magazine. Several business took
advantage of this opportunity.
The GOLF Magazine placement featured the Fountain Hills “Sonoran Desert Golf Trail” in the
cover photo of the Arizona section, as well as custom editorial and a photo and 1/3 page ad within
the AZ section. The placement, which was cooperatively paid for by the Fountain Hills golf
courses along with the Bureau, also provided a dedicated e-blast to some 80,000 addresses within
the Midwest US region, a prime feeder market for travel to Arizona. It also provided one
“ESCAPES” golf package listing (national to 1,400,000 subscribers) in a subsequent edition of
GOLF Magazine, a Fountain Hills golf package promotion via GOLF Magazine’s “Front 9
App” for iPad and iPhone for a one week run, and a 10,000 name mailing list for one-time direct
mail campaign.
During the first half of the fiscal year, the Bureau also continued with its primary statewide,
integrated multi-media marketing campaign in association with Arizona Key Magazine. This
program affords Fountain Hills and Fort McDowell a multi-page, cooperative advertising section
in each monthly issue of Arizona Key Magazine and its companion website,
www.arizonakey.com, serves visitors and local residents. Additional integrated marketing
elements included in the Bureau‟s partnership with Arizona Key are a web services featuring a
Fountain Hills page on the ArizonaKey.com website which includes the„Key 360 rich media‟
package comprised of:
120 second HD video of the destination
3 virtual tours,
A digital slide show
120 second audio tour podcast
Link to the FH Visitors Bureau website.
Another important target market group served by Arizona Key is the network of concierges and
other travel planning professionals who regularly advise resort guests, and other visitors and local
residents with tourism recommendations. The Bureau‟s marketing package with Arizona Key also
provides an event marketing component that enables the destination to participate in interface
opportunities with the concierges and travel professionals in the Arizona Key network.
Other Print Advertising
The Bureau also advertised during the first half of FY2011-2012 in the following publications:
Valley Guide – The Bureau is a key contributor to the maintaining of a Fountain Hills section
in this quarterly Phoenix metro area guide for visitors. This Bureau‟s lead in supporting the
Fountain Hills pages allows for Fountain Hills businesses to receive discounted rates to
participate in the section. Circulation – 70,000 per issue.
Phoenix Area Map – The Bureau maintains an inset map position for Fountain Hills on this
area map which is a sister publication to the Valley Guide. Distribution 280,000
AZ Magazine – A bi-monthly Arizona events publication of the Arizona Republic, 40,000
circulation
AZ Official Visitor Guide (AOT) – Paid Listing for Destination section. Circulation 825,000
Visit Phoenix Guide (Gtr Phoenix CVB) – Annual area guide. Circulation 250,000
Scottsdale Republic – November events advertisement. Circulation 40,000
AZ Finest Weddings – September cover position features Fountain Hills, and full page ad
featuring Fountain Park and FH Community Center, 30,000 circulation. Initially featured at
June 2011 Bridal Show, exposure to 3,000 brides
AZ Collectors Guide – Annual support for arts community providing for reduced cost ads for
artists. FH has 9 pages. 50,000 copies.
Inside Golf Canada – Co-op with Arizona Trails to promote Sonoran Desert Golf Trail.
18,000
Media Relations/Editorial Publicity - -
As detailed in a spreadsheet attached to this narrative report, the Bureau‟s media relations
outreach activities resulted in an array of on-line and print media editorial exposures with an
estimated number of total potential consumer impressions totaling over 12 million.
On-Line Marketing
The Bureau maintains active, integrated on-line presence and messaging via the following
channels, all linked to its website:
Facebook.com – FHVB business page
ArizonaKey.com
TripAdvisor.com
AZMeetingsandEvents.com – Banner ad
Valleyguide.com
Finestweddingsites.com
Twitter page
A-position.com (golf market)
Sonorandesertgolftrail.com
o Golfzoo.com
o Arizonagolfandlodging.com
AmericanTrails.org
Publications
Visitors Guide
The Bureau produced its 2012 edition of its Fountain Hills Official Visitors Guide. Forty
thousand copies of the guide will be disseminated during the year at 418 information service
locations throughout the Valley and the state including at CVBs, hotels, campgrounds, RV
parks, select restaurants, travel rest areas, Sky Harbor International Airport, as well as to
individuals and travel and meetings industry professionals who have requested destination
information.
Dining Guide
The Bureau updated its comprehensive listing of dining establishments in Fountain Hills and
produced 2,500 copies and it is also available as a downloadable pdf on its web site, as well
as the Town web site and through local realtors.
Calendar of Events
The Bureau maintains a constantly updated two-month calendar of upcoming events. The
calendar is available in printed copies as well as a downloadable pdf on its website.
Special Niche Marketing Efforts: Golf and Weddings
The Bureau has created a new product for golf travelers by organizing the golf courses in
Fountain Hills, Fort McDowell and the Verdes into a golf “trail”, which it has branded the
“Sonoran Desert Golf Trail” (SDGT). A stand-alone web site has been created specifically
for the SDGT, and the Bureau works directly with a team of representatives from each of the
courses in planning and cooperatively implementing marketing initiatives for the Trail. “Stay
and Play” Golf packages are included in the Trail‟s product offerings.
The Bureau also focuses special attention on the niche of weddings. Fountain Park is a
highly desirable venue for weddings, and the Community Center serves as an excellent
wedding reception site. The Bureau produces a guide to wedding venues and services, and
advertises in select, lead-producing weddings-oriented publications and exhibits at wedding
expos.
Trade/Group Marketing – Conventions and Meetings
International Trails Symposium – April 2013
The Bureau collaborated with the Fort McDowell Yavapai Nation and its Radisson Resort in
successfully booking the 2013 International Trails Symposium for the destination. This
event, which is expected to bring some 800 trails and outdoor recreation enthusiasts, will
utilize all available hotel rooms in Fountain Hills, Fort McDowell and beyond. The pre-
promotion for attendance building has already begun with Fountain Hills and Fort McDowell
being prominently featured on the American Trails website www.AmericanTrails.org, which
receives over one million visitors per month. Fountain Hills is the official host community,
and an official sponsor of the symposium.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
The following pages update the Bureau‟s compliance with the specifics of the annual scope of
work within the agreement between the Fountain Hills Chamber of Commerce and the Town of
Fountain Hills:
Annual Scope of Work Compliance Report
Per the terms of its professional services agreement, the Fountain Hills Chamber of Commerce
(FHCC) is to provide the Town of Fountain Hills with bi-annual reports of progress toward
completing the agreement‟s annualized Scope of Work.
The Scope of Work contains the following stated responsibilities (progress reporting on each
item is in bold italic):
1. Provide necessary staffing, materials, equipment, and professional management to effectively
operate a tourism program which focuses on local, regional and national/international
selected markets for overnight and day trip visitors to Fountain Hills. Staffing should consist,
at a minimum, of a Tourism Director and a half time employee dedicated to accomplish this
task.
The FH Chamber of Commerce provides the Tourism Director, as well as a media
relations and marketing manager, and the necessary administrative/finance management
and materials and equipment. The Chamber also staffs and operates the visitor
information center.
2. Publish a minimum of 40,000 visitor guides annually.
The new, 2012-12 edition of Fountain Hills Visitors Guide was
produced in 40,000 quantity in December 2011, and is maintained in
wide-spread distribution to over 400 information dissemination locations
throughout the Valley and the state, as well as in mail response to inquiries
generated by advertising and marketing efforts.
3. Conduct a non-paid public relations and social media editorial development campaign to
achieve $5.00 in media value for every dollar invested in media relations services; or
$200,000 in media value.
With reference to the attached PR report/spreadsheet, an estimated 12,500,000 consumer
impressions with an estimated $125,000 in media value was generated directly by the
Visitor Bureau’s media relations efforts for first half of 2011-12.
4. Apply for the full extent of project funding available through the Arizona
Office of Tourism (Prop 302) and the Arizona Tribal-State Gaming Compact (Prop 202)
grants.
For FY2012, Arizona Office of Tourism grant funding has been awarded to the FH
Visitors Bureau in the amount of $8,000; and Arizona Tribal-State Gaming Compact
grant funding has been awarded via the Fort McDowell Yavapai Nation in the amount of
$45,000.
5. Develop and promote an image/branding campaign for the Fountain Hills destination area
that effectively depicts the area‟s vibrancy and diversity of culture, art, heritage, environment,
etc., and conveys a healthy community sense of place; and that can also be applicable to
marketing efforts of various entities within the community.
As described in the narrative portion of this report, a refreshed image/branding campaign
for the Fountain Hills destination has been created, and is presently being launched.
6. Develop a website for the Fountain Hills destination area that effectively conveys
compelling information and visuals regarding all visitor interest aspects of the
destination per the destination brand as described in item 2 above, and that provides
state of the art capabilities for effectively conducting an integrated digital/on-line
marketing campaign.
As described in the narrative portion of this report, a new Fountain Hills
destination website is presently in development per the requirements within this
scope of services item. The site can presently be previewed at www.cosis.us/fhaz
7. Conduct an integrated print, electronic and digital advertising campaign aimed at
select, appropriate markets providing the best potential for generating overnight and
day-trip visitation to Fountain Hills with a goal of achieving a minimum of 5,000,000
advertising impressions
Per the narrative portion of this report, and as detailed in the included spreadsheet,
the Bureau executed advertising placements during the first half of FY2012 which
achieved an estimated of 6,855,000 consumer impressions.
8. Produce/provide niche market brochures that focus on Fountain Hills attractions and
amenities pertinent to determined primary interests and information needs of visitors to
Fountain Hills, including but not limited to (a) Calendar of Events; (b )Restaurants/Dining
Guide; (c) Wedding Planning Guide, etc.
During the first half of FY2012, the Bureau produced updated editions of the Fountain
Hills Dining Guide and its Fountain Hills Calendar of Events. A revised version of the
Fountain Hills Wedding Planning Guide is currently in production.
9 Conduct such other destination marketing, sales and affiliations programs and activities as
deemed necessary and appropriate to generate incremental individual and group visitation to
the Fountain Hills destination, to include but not limited to leisure and non-leisure group
business development; special events development; sponsorships, niche market
collaborative/co-op initiatives, memberships and affiliations with tourism industry
organizations, etc.
The FH Visitors Bureau maintains industry affiliations through memberships in
appropriate and beneficial organizations and trade associations, and conducts related
programs on an ongoing basis as opportunities present themselves. A key accomplishment
in this area is the successful booking of the 2013 International Trails Symposium (detailed
in the narrative portion of this report).
10 List the Town of Fountain Hills as a sponsor of all materials produced as appropriate.
Compliance with this scope of service element is ongoing as evidenced in FH
Visitors Bureau publications, materials and the new website.
11 Report on progress made on each scope of service item in mid-year and year-end
reports.
Respectfully submitted,
Mark McDermott Frank S. Ferrara
Tourism Director President & CEO
January 25, 2012
2011-12 advertising, collateral, online and events expenditures
PUBLICATION CIRC.Date Freq.Dist.Print Features
Online
Features Added Value placement
budget
2011/12 Circulation Imps
Arizona Key
Magazine 30,000 12X bi monthly
hotels,
resorts, CVBs calendar
HD video, QR
codes,
calendar,
concierge
events all issues $7,480 180,000 450,000
Valley Guide 70,000
Fall,
Winter,
Spring 3X quarterly
in-room
valley hotels,
CBs, Resorts calendar online
discounts
local retailer
ad price 1/4 pg $2,578 210,000 525,000
Phoenix Area
Map Inset 280,000 Fall one insert
Town map inset -
dwtn bus. district map inset yes 280,000 700,000
Trip Advisor
page
online
sponsor
page on-going annual online
control
aspects of the
page and side
banners online $2,500
AZ Official
Visitors Guide -
listing 825,000 annual
CVB, trade
shows listing $395 825,000 2,062,500
Visit Phoenix
Guide - listing 250,000 annual listing $400 625,000 1,562,500
Scottsdale
Republic 40,000 Nov. '11 1X zone 8 1/4 pg $250 40,000 100,000
AZ Magazine 40,000 Nov/Dec 1X 1/4 pg $250 40,000 100,000
Phoenix
Magazine 73,000 Nov. '11 Nov '11
Full page ad, 1500
word editorial,
images, PDF of
section post-print
Special rates for
FH businesses 7 pgs $7,625 74,000 185,000
General Consumer Marketing - FHFM General destination and events oriented advertising and media relations
Valley Consumer focus
2. Golf Market
2011-12 advertising, collateral, online and events expenditures
PUBLICATION CIRC.Date Freq.Dist.Print Features
Online
Features Added Value placement
budget
2011/12 Circulation Imps
A-Position Golf
focus 45,000 online ongoing
golf writers
publish articles
and tag to our
destination online
Inside Golf
Canada 18,000 Oct. '11 1/8 pg $500 18,000 45,000
Golf Magazine 400,000 Nov. '11
print and online,
eblast 1 pg $7,000 400,000 1,000,000
Sonoran Desert
Golf Trail web online ongoing
hosting &
maintenance online $1,500
AZ Finest
Weddings 30,000
Sept. '11,
ongoing
online
Sept - Oct
2011 rack,
annual Jul
'11 - Jun '12
hotels and
wedding
venues,
bridal shows
Google page one
listing, Venue
section - Fountain
Park and Event
Center
direct link to
email contact
in FH, monthly
leads photo shoot
cover and
full page plus
online
features
Bridal Fashion
Show January
January 3,000
brides 2 days 2-day show $1,500
AZ Meetings &
Events
online
banner ad
online
ongoing annual online banner ad editorial online $280
AZ Collectors
Guide 50,000 annual annual
table-top
book/mag,
website and
artist Monthly
E-letter 14 - 18 pgs
Paid in
2010/11 50,000 125,000
Visitors Guide 40,000 $0
Dining Guide 2,500 $500
Bridal Guide
Update
online
only $300
Bi-monthly
calendar $300
Total $33,358 2,742,000 6,855,000
5. Publications/Collateral
3. Destination Wedding
4. Other Markets -Meetings & Events
4. Other Markets b. Arts & Art Fair Promotions
2011 - 2012 Media Clips
Print, online, TV
Date Media Outlet Description
Media
Placement
Type
Page
(Print)
Circ. /
Imps.
(daily)
09/10/11
"Big List of Fall Events & Festivals in Metro
Phoenix"AZ Central
http://www.azcentral.com/thingstodo/eve
nts/articles/2011/09/07/20110907big-list-
fall-festivals-events-metro-phoenix.html
Art in the
Park, Friday
Night Franks online 3,033,333
9/12/2011
Phoenix Guide/ About.com
http://phoenix.about.com/od/halloween/t
p/Halloween-Events-Festivals-
Phoenix.02.htm
Halloween in
the Hills online 1,000,000
9/12/2011
Phoenix Guide/About.com
http://phoenix.about.com/od/halloween/t
p/Halloween-Pets.htm
Halloween in
the Hills online 1,000,000
9/12/2011
SingleTrack.com
http://singletrack.competitor.com/2011/0
2/features/destination-mcdowell-
mountain-regional-park-arizona_5954
McDowell
Regional Park online
9/27/2011 Let's Go and http://fhtimes.com/letsgo/
Halloween in
the Hills
print &
online 27,000
9/27/2011 Let's Go and http://fhtimes.com/letsgo/
Fountain Hills
Business Expo
print &
online 27,000
9/29/2011 Scottsdale Republic
Scottsdale
remains good
place to hike -
Pemberton
Trail print 50,073
9/30/2011 Scottsdale Republic
Top 5 Dining
Picks This
Weekend -
Flapjacks print 50,073
10/26/2011 Scottsdale Republic
Things todo
This weekend
"Halloween in
theHills"print 50,073
2011 - 2012 Media Clips
Print, online, TV
Date Media Outlet Description
Media
Placement
Type
Page
(Print)
Circ. /
Imps.
(daily)
11/10/2011 Arizona Republic - Living pg 1 & E5
Festival of
Shopping -
Fountain
Festival
print -
Living
section
cover story -
E5 w photo
Living 1
& E5 1,500,000
11/10/2011
AZ Central 14 festive events
http://www.azcentral.com/thingstodo/eve
nts/holiday2/articles/2011/11/01/2011110
1festive-events-shoppers-holiday-
season.html
Fountain
Festival online 3,033,333
11/11/2011
Ch 15 Sonoran Living
http://www.abc15.com/dpp/lifestyle/sono
ran_living/sl_sponsors/fountain-hills-arts-
festival-offers-weekend-fun
Fountain
Festival
online &
video clip
with story
11/12/2011 Scottsdale Republic
Fountain
Festival
Front page,
pg 28, 29 50,073
11/12/2011
Arizona Republic - Explore Arizona -pg 1
Event
Fountain
Festival pg 1 Event 1,500,000
11/11/2011
Phoenix Business Journal
http://www.bizjournals.com/phoenix/news
/2011/11/11/business-calendar-for-the-
week-of.html?s=print JumpstartBiz
online
calendar 16,070
Fall Score Golf magazine pg 53 - 58 800,000
12/21/2011 Business incubator takes a step JumpstartBiz pg 5a 5,000
July 1 - December 31, 2011 12,142,028
Re
d
a
c
t
1
Contract #2012-18-FTN
CONTRACT FOR SERVICES BETWEEN
Area Agency on Aging, Region One, Incorporated AND
1366 E. Thomas Road, Suite 108
Phoenix, Arizona 85014
(602) 264-2255 FAX (602) 230-9132
Town of Fountain Hills
13001 N. La Montana Drive
Fountain Hills, Arizona 85268
480-816-5226 fax: 480-816-0280
EIN #860650150
DURATION OF THE CONTRACT, FY 2012: July 1, 2011 and shall end June 30, 2012.
CONTACT INFORMATION FOR NOTICES
Signatories: Mary Lynn Kasunic, President & CEO Julie Ghetti , Interim Town Manager
Programmatic Authority: Jim Knaut, Sr. Vice President Contracts Kelley Fonville, Sr Services Supervisor
Daily Contacts: Amanda Weiler, Program Specialist Kelley Fonville, Sr Services Supervisor
REIMBURSEMENT PAYMENTS SHALL BE MAILED TO:
Same address as above
This Contract is entered into by and between Town of Fountain Hills, hereafter referred to as Contractor,
and Area Agency on Aging, Region One, Incorporated, hereafter referred to as Area Agency. The
Contractor, in consideration of the covenants and conditions set forth herein, shall provide and perform
the services as set forth in the Uniform Terms and Conditions, Special Terms and Conditions, Scope(s) of
Work, Service Specification(s), Contract Supporting Document, and other Area Agency manuals, policies,
and directives. Contractor hereby affirms that all insurance and indemnification requirements as set forth
in this contract have been met and shall be maintained fully throughout the terms of this contract. Further,
Contractor will supply to Area Agency the required certificates of insurance including all required
“additional insured” as identified in this contract. All rights and obligations of the parties shall be
governed by the terms of this document, and shall include any subcontracts and the approved budget and /
or unit rates and contract budget ceilings.
Notice under this Contract shall be given by personal delivery or by mail to the persons indicated above
and shall be effective upon receipt by the party to whom addressed unless otherwise indicated in said
notice.
IN WITNESS WHEREOF, the parties enter into this Contract:
AREA AGENCY ON AGING, TOWN OF FOUNTAIN HILLS
REGION ONE, INCORPORATED,
Signature and Date Signature and Date
Mary Lynn Kasunic, President & CEO
Area Agency on Aging Director
Julie Ghetti
Interim Town Manager
2
FIXED PRICE
CONTRACT #:2012-18-FTN
CONTRACTOR:Town of Fountain Hills
TYPE:Original Contract
CONTRACT TERM:July 1, 2011 to June 30, 2012
CONTRACT PAYMENT CEILING FOR ALL SERVICES:37,000$
CONTRACTOR AGREES TO PROVIDE:UNIT
CONTRACTED SERVICESPSARATEUNITS
Home Delivered Meals 37.15$ 5,175
CONTRACT SUMMARY PAGE
3
UNIFORM TERMS AND CONDITIONS
1. Definitions of Terms As used in this contract, the terms listed below are defined as follows:
a. Area Agency means the Area Agency on Aging, Region One, Incorporated.
b. Begin Date means the date that the Contractor may start to provide services under this contract.
The Contractor will not be paid or reimbursed for contract services provided prior to the Begin
Date. Payments or reimbursements shall not be made under this contract until the effective date
of this contract.
c. Compensation means that part of this contract that contains the approved method of payment or
reimbursement which may include a budget or fee or rate for the delivery of services pursuant to
this contract. Compensation also means Cost or Price.
d. Contract means the combination of the Solicitation, including the Uniform and Special
Instructions to offerors, the Uniform and Special Terms and Conditions, Specifications and
Scopes of Work; the Offer and any Best and Final Offer(s); Contract Supporting Document and
Work Statements; any Solicitation or Contract Amendments; and any terms implied by law.
e. Contract Amendment means a written document signed by the Area Agency President/Chief
Executive Officer (CEO) that is issued for the purpose of making changes in the Contract.
f. Contract Expenditures means expenditures made by the Contractor during the term of this
Contract and pursuant to the approved budget and compensation terms and methods.
g. Contract Monitor means the Area Agency staff person who is assigned managerial
responsibility for the contract.
h. Contract Operating Budget means the Contractor’s itemized then condensed operating budget
as approved through a Solicitation or Amendment.
i. Contractor means any person, agency, entity that has a Contract with the Area Agency.
Contractor shall also be referred to as Provider.
j. Contract Term means the period of time from the contract Begin Date to the contract
termination date as awarded, extended, or terminated based on these contract provisions.
k. Days means calendar days unless otherwise specified.
l. Effective Date means the date that the Area Agency President/CEO or designee signs the
contract, unless another date is specifically stated in the contract.
m. Eligible Persons means the persons determined eligible for contract services in accordance with
the criteria set forth by this contract.
n. Equipment means all vehicles, furniture, machinery, electronic data processing (EDP)
equipment, software and all other equipment costing $1,000 or more, including all normal and
necessary expenses incurred to make the equipment ready for its intended use (e.g., taxes,
freight, installation, assembly and testing charges, etc.) and with a useful life of greater than one
year. Equipment as used herein does not include real property (e.g., land buildings, structures, or
facilities’ improvements).
o. Fiscal Year means the period beginning with July 1 and ending June 30.
p. Gratuity means a payment, loan, subscription, advance, deposit of money, services, or anything
of more than nominal value, present or promised, unless consideration of substantially equal or
greater value is received.
q. Materials means all property, including equipment, supplies, printing, insurance, and leases of
property but does not include land, a permanent interest in land or real property or leasing space.
r. Offer means bid, proposal, or quotation or Solicitation
s. Procurement Officer means the Area Agency President/CEO or designee who is duly
authorized by Area Agency to enter into and administer contracts and make written
determinations with respect to the contract.
t. Quarter means fiscal quarters July-September, October-December, January-March, and April-
June.
u. Reimbursement Ceiling means the maximum amount payable by Area Agency to the
Contractor under this Contract.
4
v. Scope of Work means the Arizona Department of Economic Services or Area Agency
description of service(s) to be provided pursuant to this contract. Scope of Work also means
Service.
w. Services means the furnishing of labor, time, product, or effort by a Contractor or subcontractor
which does not involve the delivery of a specific end product other than required reports and
performance, but does not include employment agreements or collective bargaining agreements.
x. Solicitation means an invitation for bids, a request for proposals, request for quotation, request
for qualifications or Offer.
y. State means the State of Arizona and the Department of Economic Security.
z. Subcontract means any contract, expressed or implied, between the Contractor and another
party or between the Contractor’s subcontractor and another party delegating or assigning, in
whole or in part, the making or furnishing of any material or providing any service required for
the performance of the Contract.
2. Contract Interpretation The materials and services supplied under this contract shall
comply with all applicable federal, state, and local laws, and the Contractor shall maintain all applicable
license and permit requirements.
a. Arizona Law The law of Arizona applies to this contract including, where applicable, the
Uniform Commercial Code as adopted by the State of Arizona and the Arizona Procurement
Code, Arizona Revised Statutes (A.R.S.) Title 41, Chapter 23, and its implementing rules,
Arizona Administrative Code (A.A.C.) Title 2, Chapter 7.
b. Implied Contract Terms Each provision of law and any terms required by law to be in this
contract are a part of this contract as if fully stated in it.
c. Contract Order of Precedence In the event of a conflict in the provisions of the contract, as
accepted by the Area Agency and as it may be amended, the following shall prevail in the order
set forth below:
i. Special Terms and Conditions;
ii. Uniform Terms and Conditions;
iii. Provider Specific Terms for Programs with ALTCS Funded Services
iv. Provider Specific Terms
v. Statement, or Scope of Work,
vi. Service Specifications;
vii. Area Agency manuals, policies and directives;
viii. Contract Supporting Documents as approved by Area Agency,
ix. Documents referenced or included in the solicitation.
d. Contract Supporting Documents Contract Supporting Documents constitutes specific
documents included by reference in this contract. The Contract Supporting Document is
submitted by the Contractor to Area Agency to validate information pertinent and accountable to
this contract. The Contract Supporting Document is approved by the Area Agency and includes
any one or all of the following:
i. Contracted Service Methodology(s),
ii. Contractor Assurances Statements
iii. Disclosure of Substantial Interest, and
iv. Any other proposal related documents as required by Area Agency.
e. Vehicle Lease All provisions of this contract are applicable to and extended to any Vehicle
Lease that may be initiated between Contractor and Area Agency during the terms of this
contract.
f. Relationship of Parties
i. The Contractor under this contract is an independent Contractor. Neither party to this
contract shall be deemed to be the employee or agent of the other party to the contract.
ii. In the event that the Contractor or its personnel is sued or prosecuted for conduct arising
from this contract, the Contractor or their personnel will not be represented by the Area
Agency or other funding source within this contract.
5
iii. Taxes or Social Security payments will not be withheld from an Area Agency payment
issued hereunder and the Contractor shall make arrangements to directly pay such
expenses, if any.
g. Severability The provisions of this contract are severable. Any term or condition deemed illegal
or invalid shall not affect any other term or condition of the contract.
h. No Parole Evidence This contract is intended by the parties as a final and complete expression
of their agreement. No course of prior dealings between the parties and no usage of the trade
shall supplement or explain any terms used in this contract and no other understanding either oral
or in writing shall be binding.
i. No Waiver Either party's failure to insist on strict performance of any term or condition of the
contract shall not be deemed a waiver of that term or condition even if the party accepting or
acquiescing in the nonconforming performance knows of the nature of the performance and fails
to object to it.
3. Contract Administration and Operation
a. Records The Contractor shall retain and shall contractually require each subcontractor to retain
all data and other records relating to the acquisition and performance of the contract for a period
of five years after the completion of the contract. All records shall be subject to inspection and
audit by Area Agency at reasonable times. Upon request, the Contractor shall produce a legible
copy of any or all such records. Contract service records will be maintained in accordance with
prescribed Area Agency policies and procedures.
b. Non-Discrimination The Contractor shall comply with State Executive Order No. 99-4 and all
other applicable federal and state laws, rules and regulations, including the Americans with
Disabilities Act.
c. Audit At anytime during the term of this contract and five (5) years thereafter, the Contractor's
or any subcontractor's books and records shall be subject to audit by the Area Agency and, where
applicable, the state or federal government, to the extent that the books and records relate to the
performance of the contract or subcontract.
d. Facilities Inspection and Materials Testing The Contractor agrees to permit access to its
facilities, subcontractor facilities and the Contractor’s processes or services, at reasonable times
for inspection of the facilities or materials covered under this contract. The Area Agency shall
also have the right to test, at its own cost, the materials to be supplied under this contract. Neither
inspection of the Contractor’s facilities nor materials testing shall constitute final acceptance of
the materials or services. If the Area Agency determines non-compliance of the materials, the
Contractor shall be responsible for the payment of all costs incurred by the Area Agency for
testing and inspection.
e. Notices All notices under this contract shall be directed in writing to the persons and addresses
as specified in this contract, or to such other persons and/or addresses as either party may
designate to the other by notice. In the event that no person is designated to receive notices then
notices shall be sent to the contract signatory.
i. The Area Agency President/CEO and an authorized Contractor representative may
change their respective person to whom notice shall be given by written notice to the
other and an amendment to the Contract shall not be necessary.
ii. The Contractor shall give written notice to Area Agency of changes to the following and
a written amendment to the contract shall not be necessary:
1. Change of address and/or telephone number;
2. Change in Contract Authorized Signatory and his/her designee;
3. Change in the name of the Contractor, where the ownership or responsible entity
remains the same;
4. Changes in the name and/or address of the person to whom notices are to be sent;
5. Changes in contract-related personnel positions of the Contractor which do not
affect staffing ratios, staff qualifications or specific individuals required under
this contract; or
6
6. In a fixed price with price adjustment contract, whenever there is less than a 10%
increase in any budget category; any such increase must be offset by an equal
value decrease in another budget category or categories or equal value increase in
Contractor funds.
f. Advertising, Publishing and Promotion of Contract
i. The Contractor shall not use, advertise, or promote information for commercial benefit
concerning this contract without the prior written approval of the Area Agency
President/CEO or designee.
ii. Any advertisement, publication, or other media of promotion of contracted services must
include the following statement: Services are funded in part by Area Agency on Aging,
Region One, Incorporated.
iii. The Contractor shall provide to Area Agency for review and approval all reports or
publications (written, visual or sound) which are funded or partially funded under this
contract, a minimum of fifteen (15) calendar days prior to public release.
iv. All reports and publications whether written, visual or verbal shall contain the following
statement: This program is funded through a contract with the Area Agency on Aging,
Region One Incorporated. Any points of view are those of the author and do not
necessarily represent the official position or polices of the Area Agency or related
funders.
g. Property of the Area Agency Any materials, including reports, computer programs and other
deliverables, created under this contract are the sole property of Area Agency. The Contractor is
not entitled to a patent or copyright on those materials and may not transfer the patent or
copyright to anyone else. The Contractor shall not use or release these materials without the prior
written consent of Area Agency.
h. Ownership of Intellectual Property Any and all intellectual property, including but not limited to
copyright, invention, trademark, tradename, service mark, and/or trade secrets created or
conceived pursuant to or as a result of this contract and any related subcontract (“Intellectual
Property”), shall be work made for hire and the Area Agency shall be considered the creator of
such Intellectual Property. The Area Agency in requesting the issuance of this contract shall own
(for and on behalf of the Area Agency) the entire right, title and interest to the Intellectual
Property throughout the world. Contractor shall notify the Area Agency, within thirty (30) days,
of the creation of any Intellectual Property by it or its subcontractor(s). Contractor, on behalf of
itself and any subcontractor (s), agrees to execute any and all document(s) necessary to assure
ownership of the Intellectual Property vests in the Area Agency and shall take no affirmative
actions that might have the effect of vesting all or part of the Intellectual Property in any entity
other than the Area Agency. The Intellectual Property shall not be disclosed by Contractor or its
subcontractor(s) to any entity not the Area Agency without the express written authorization of
the Area Agency President/CEO.
4. Costs and Payments
a. Payments Payments shall comply with requirements of A.R.S. Title 35 and 41. Upon receipt
and acceptance of goods or services, the Contractor shall submit a complete and accurate invoice
for payment from the Area Agency.
b. Delivery Unless stated otherwise in the contract, all prices shall be F.O.B. Destination and shall
include all freight delivery and unloading at the destination.
c. Applicable Taxes
i. Payment of Taxes: The Contractor shall be responsible for paying all applicable taxes.
ii. State and Local Transaction Privilege Taxes: The State of Arizona and the Area Agency
is subject to all applicable state and local transaction privilege taxes. Transaction
privilege taxes apply to the sale and are the responsibility of the seller to remit. Failure to
collect such taxes from the buyer does not relieve the seller from its obligation to remit
taxes.
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iii. Tax Indemnification: Contractor and all subcontractors shall pay all Federal, state, and
local taxes applicable to its operation and any persons employed by the Contractor.
Contractor shall, and require all subcontractors to hold the State of Arizona, Area
Agency, and it’s funders harmless from any responsibility for taxes, damages, and
interest, if applicable, contributions required under Federal, and/or state and local laws
and regulations and any other costs including transaction privilege taxes, unemployment
compensation insurance, Social Security and Workmen’s Compensation.
iv. IRS W9 Form: In order to receive payment the Contractor shall have a current I.R.S.
W9 Form on file with the Area Agency, unless not required by law.
d. Availability of Funds for the Next Fiscal Year Funds may not presently be available for
performance under this Contract beyond the current fiscal year. No legal liability on the part of
the State or the Area Agency for any payment may arise under this Contract beyond the current
fiscal year until funds are made available for performance of this Contract.
e. Availability of Funds for the Current Fiscal Year Should the State Legislature enter back into
session and reduce the appropriations or for any reason and these goods or services are not
funded, the State and/or the Area Agency may take any of the following actions:
i. Accept a decrease in price offered by the Contractor;
ii. Cancel the Contract
iii. Cancel the Contract and re-solicit the requirements
5. Contract Changes
a. Amendments This contract is issued under the authority of the Area Agency President/CEO who
signed this contract. The contract may be modified only through a contract Amendment within
the scope of the contract issued under the authority of the Area Agency President/CEO. Changes
to the contract, including the addition of work or materials, the revision of payment terms, or the
substitution of work or materials, directed by a person who is not specifically authorized by the
Area Agency President/CEO in writing or made unilaterally by the Contractor are violations of
the contract and of applicable law. Such changes, including unauthorized written contract
amendments shall be void and without effect, and the Contractor shall not be entitled to any claim
under this contract based on those changes.
i. A written amendment to this contract shall be required whenever there is a material
change in the content including but not limited to the following:
1. Reimbursement ceiling;
2. Contract term if extended and/or reduced without terminating the contract;
3. Service delivery plan, the scope of work, or the level/units of service to be
provided;
4. Rate paid per unit of service;
5. Ownership or legal entity responsible for the contract; or
6. For any other change in the terms and conditions of the contract which Area
Agency deems substantial.
ii. Where a change does not fall in any of the categories listed in the above items, the
Contractor must obtain approval from the Area Agency President/CEO prior to effecting
the change.
b. Subcontracts The Contractor shall not enter into any subcontract under this contract for the
performance of this contract without the advance written approval of the Area Agency
President/CEO. Area Agency will not allow a subcontract for any direct client / participant
services, but may approve ancillary subcontracts for operational functions not related to direct
client / participant services.
i. A request for approval of a subcontract must alt least meet the following requirements.
1. The Contractor shall clearly list any proposed subcontractors and the
subcontractor’s proposed responsibilities.
2. The subcontract shall incorporate by reference all of the terms and conditions of
this contract.
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3. The Contractor shall provide copies of each contract with a subcontractor relating
to the provision of contract services to Area Agency within five (5) calendar days
of execution.
ii. Contractor is encouraged to make every effort to utilize subcontractors that are small,
women-owned and/or minority owned business enterprises. This could include
subcontractors for a percentage of the administrative service being proposed. Contractor
who is committing a portion of its work to such subcontractors shall do so by identifying
the type of service and work to be performed by providing detail concerning the
Contractor’s utilization of small, women-owned and/or minority business enterprises.
Emphasis should be placed on specific areas that are subcontracted and percentage of
contract utilization and how this effort will be administered and managed, including
reporting requirements.
c. Assignment and Delegation The Contractor shall not assign any right nor delegate any duty
under this contract, without the prior written approval of the Area Agency President/CEO. Area
Agency shall not unreasonably with hold approval.
6. Risk and Liability
a. Risk of Loss The Contractor shall bear all loss of conforming material covered under this
Contract until received by authorized personnel at the location designated in the purchase order or
Contract. Mere receipt does not constitute final acceptance. The risk of loss for nonconforming
materials shall remain with the Contractor regardless of receipt.
b. Indemnification
i. Contractor/Vendor Indemnification (Not Public Agency): The parties to this contract
agree that the Area Agency and the State of Arizona, it’s departments, agencies, boards
and commissions shall be indemnified and held harmless by the Contractor for the
vicarious liability of the Area Agency or the State as a result of entering into this
contract. However, the parties further agree that the Area Agency and the State of
Arizona, it’s departments, agencies, boards and commissions shall be responsible for its’
own negligence. Each party to this contract is responsible for its’ own negligence.
ii. Public Agency Language Only: Each party (as ‘indemnitor’) agrees to indemnify,
defend, and hold harmless the other party (as ‘indemnitee’) from and against any and all
claims, losses, liability, costs, or expenses (including reasonable attorney’s fees)
(hereinafter collectively referred to as ‘claims’) arising out of bodily injury of any person
(including death) or property damage but only to the extent that such claims which result
in vicarious/derivative liability to the indemnitee, are caused by the act, omission,
negligence, misconduct, or other fault of the indemnitor, its’ officers, officials, agents,
employees, or volunteers.
c. Indemnification – Patent and Copyright The Contractor shall indemnify and hold harmless both
Area Agency and the State against any liability, including costs and expenses, for infringement of
any patent, trademark or copyright arising out of contract performance or use by the Area Agency
or the State of materials furnished or work performed under this contract. The Area Agency shall
reasonably notify the Contractor of any claim for which it may be liable under this paragraph. If
the Contractor is insured pursuant to A.R.S. §41-621 and §35-154, this section shall not apply.
d. Force Majeure
i. Except for payments of sums due, neither party shall be liable to the other nor deemed in
default under this Contract if and to the extend that such party’s performance of this
Contract is prevented by reason of force majeure. The term “force majeure” means an
occurrence that is beyond the control of the party affected and occurs without its fault or
negligence. Without limiting the foregoing, force majeure includes acts of God; acts of
the public enemy; war; riots; strikes; mobilization; labor disputes; civil disorders; fire;
flood; lockouts; injunctions-intervention-acts; or failures or refusals to act by government
authority; and other similar occurrences beyond the control of the party declaring force
majeure which such party is unable to prevent by exercising reasonable diligence.
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ii. Force Majeure shall not include the following occurrences:
1. Late delivery of equipment or materials caused by congestion at a manufacturer’s
plant or elsewhere, or an oversold condition of the market;
2. Late performance by a subcontractor unless the delay arises out of a force
majeure occurrence in accordance with this force majeure term and condition; or
3. Inability of either the Contractor or any subcontractor to acquire or maintain any
required insurance, bonds, licenses or permits.
iii. If either party is delayed at any time in the progress of the work by force majeure, the
delayed party shall notify the other party in writing of such delay, as soon as is
practicable and no later than the following working day, of the commencement thereof
and shall specify the causes of such delay in such notice. Such notice shall be delivered
or mailed certified-return receipt and shall make a specific reference to this article,
thereby invoking its provisions. The delayed party shall cause such delay to cease as
soon as practicable and shall notify the other party in writing when it has done so. The
time of completion shall be extended by Contract Amendment for a period of time equal
to the time that results or effects of such delay prevent the delayed party from performing
in accordance with this Contract.
iv. Any delay or failure in performance by either party hereto shall not constitute default
hereunder or give rise to any claim for damages or loss of anticipated profits if, and to the
extent that such delay or failure is cause by force majeure.
e. Third Party Antitrust Violations The Contractor assigns to the Area Agency any claim for
overcharges resulting from antitrust violations to the extent that those violations concern
materials or services supplied by third parties to the Contractor toward fulfillment of this contract.
7. Warranties
a. Liens The Contractor warrants that the materials supplied under this Contract are free of liens
and shall remain free of liens.
b. Services The Contractor warrants that all services provided under this contract shall conform to
the requirements stated herein and any amendments hereto. The Area Agency’s acceptance of
services provided by the Contractor shall not relieve the Contractor from its obligations under this
warranty. In addition to its other remedies, the Area Agency President/CEO may, at the
Contractor’s expense, require prompt correction of any services failing to meet the Contractor’s
warranty herein. Services corrected by the Contractor shall be subject to all of the provisions of
this contract in the manner and to the same extent as the services originally furnished.
c. Quality Unless otherwise modified elsewhere in these terms and conditions, the Contractor
warrants that, for one year after acceptance by the Area Agency of the materials, they shall be:
i. Of a quality to pass without objection in the trade under the contract description;
ii. Fit for the intended purposes for which the materials are used;
iii. Within the variations permitted by the contract and are of even kind, quantity, and quality
within each unit and among all units;
iv. Adequately contained, packaged, and marked as the contract may require; and
v. Conform to the written promises or affirmations of fact made by the Contractor.
d. Fitness The Contractor warrants that any material supplied to the Area Agency shall fully
conform to all requirements of the contract and all representations of the Contractor, and shall be
fit for all purposes and uses required by the contract.
e. Inspection/Testing The warranties set forth in subparagraphs Liens, Quality, and Fitness of this
section are not affected by inspection or testing of or payment for the materials by the Area
Agency.
f. Year 2000
i. Notwithstanding any other warranty or disclaimer of warranty in this Contract, the
Contractor warrants that all products delivered and all services rendered under this
Contract shall comply in all respects to performance and delivery requirements of the
specifications and shall not be adversely affected by any date-related data Year 2000
issues. This warranty shall survive the expiration or termination of this Contract. In
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additions, the defense of force majeure shall not apply to the Contractor's failure to
perform specification requirements as a result of any date-related data Year 2000 issues.
ii. Additionally notwithstanding any other warranty or disclaimer of warranty in this
Contract, the Contractor warrants that each hardware, software, and firmware product
delivered under this Contract shall be able to accurately process date/time data (including
but not limited to calculation, comparing, and sequencing) from, into, and between the
twentieth and twenty-first centuries, and the years 1999 and 2000 and leap year
calculations, to the extent that other information technology utilized by the Area Agency
in combination with the information technology being acquired under this Contract
properly exchanges date-time data with it. If this Contract requires that the information
technology products being acquired perform as a system, or that the information
technology products being acquired perform as a system in combination with other Area
Agency information technology, then this warranty shall apply to the acquired products
as a system. The remedies available to the Area Agency for breach of this warranty shall
include, but shall not be limited to, repair and replacement of the information technology
products delivered under this Contract. In addition, the defense of force majeure shall
not apply to the failure of the Contractor to perform any specification requirements as a
result of any date-related data Year 2000 issues.
g. Compliance with Applicable Laws
i. The materials and services supplied under this contract shall comply with all applicable
federal, state and local laws, and the Contractor shall maintain all applicable license and
permit requirements. Any changes in the governing laws, rules and regulations during
the term of this contract shall apply but do not require an amendment to this contract.
ii. Contractor shall comply with the laws, rules, regulations and standards contained within
the Omnibus Budget Reconciliation Act of 1981 (Public Law 97-35) including Section
2352 "Title XX Block Grants;" Title 45 Code of Federal Regulations Parts 74 and 96;
and the Arizona Title XX Social Services Plan.
iii. Contractor shall comply with the laws, rules, regulations and standards contained within
Title III of the Older Americans Act, as amended; Title 45 Code of Federal Regulations,
Part 74 (except Subpart N); Title 45 of the Code of Federal Regulations parts 1320, 1321,
1324, and 1326. In accordance with Title 45 Code of Federal Regulations, Part 1321.51,
the Area Agency shall afford the Contractor an opportunity for a hearing when required
by the provisions of this part.
iv. Contractor shall comply with the provisions of A.R.S. Sections §46-251 through
§46-253, Supplemental Payments Program.
v. The laws and regulations of the State of Arizona shall govern the rights of the parties, the
performance of this contract and any disputes there under. Any action relating to this
contract shall be brought in Arizona court.
vi. The Contractor shall comply with the requirements of the Health Insurance Portability
and Accountability Act of 1996 (Public Law 104-191) and all applicable implementing
Federal regulations. The Contractor shall notify Area Agency no later than one hundred
and twenty (120) days prior to any required compliance date if the Contractor is
unwilling to or anticipates that it will be unable to meet these requirements. Receipt by
the Area Agency of a notice of anticipated inability or unwillingness to comply with
these requirements constitutes grounds for the termination of this contract.
h. Survival of Rights and Obligations after Contract Expiration or Termination
i. Contractor’s Representations and Warranties: All representations and warranties made
by the Contractor under this contract shall survive the expiration or termination hereof. In
addition, the parties hereto acknowledge that pursuant to A.R.S. §12-510, except as
provided in A.R.S. §12-529, the Area Agency or State are not subject to or barred by any
limitations of actions prescribed in A.R.S., Title 12, Chapter 5.
ii. Purchase Orders: The Contractor shall, in accordance with all terms and conditions of
the Contract, fully perform and shall be obligated to comply with all purchase orders
received by the Contractor prior to the expiration or termination hereof, unless otherwise
11
directed in writing by the Area Agency President/CEO including, without limitation, all
purchase orders received prior to but not fully performed and satisfied at the expiration or
termination of the Contract.
8. Contractual Remedies
a. Right to Assurance If Area Agency in good faith has reason to believe that the Contractor does
not intend to or is unable to perform or continue performing under this contract, the Area Agency
President/CEO may demand in writing that the Contractor give a written assurance of intent to
perform. Failure by the Contractor to provide written assurance within the number of days
specified in the demand may at Area Agency's option, be the basis for terminating the contract
under the Uniform Terms and Conditions or other rights and remedies available by law or
provided by the contract..
b. Stop Work Order
i. The Area Agency, at any time, by written order to the Contractor, require the Contractor
to stop all or any part, of the work called for by this Contract for period(s) of days
indicated by the Area Agency after the order is delivered to the Contractor. The order
shall be specifically identified as a stop work order issued under this clause. Upon
receipt of the order, the Contractor shall immediately comply with its terms and take all
reasonable steps to minimize the incurrence of costs allocable to the work covered by the
order during the period of work stoppage.
ii. If a stop work order issued under this clause is canceled or the period of the order or any
extension expires, the Contractor shall resume work. The Area Agency President/CEO
shall make an equitable adjustment in the delivery schedule or Contract price, or both,
and the Contract shall be amended in writing accordingly.
c. Non Exclusive Remedies The rights and the remedies of the Area Agency under this contract are
not exclusive.
d. Nonconforming Tender Materials or services supplied under this contract shall fully comply
with the contract. The delivery of materials or services or a portion of the materials or services
that do not fully comply constitutes a breach of contract. On delivery of nonconforming materials
or services the Area Agency may terminate the contract for default under applicable termination
clauses in the contract, exercise any of its rights and remedies under the Uniform Commercial
Code, or pursue any other right or remedy available to it.
e. Right of Offset Area Agency shall be entitled to offset against any sums due the Contractor any
expenses or costs incurred by the Area Agency or damages assessed by the Area Agency
concerning the Contractor's nonconforming performance or failure to perform the contract,
including expenses, costs and damages described in these Uniform Terms and Conditions.
9. Contract Termination
a. Cancellation for Conflict of Interest The Area Agency may cancel this contract within three (3)
years after contract execution without penalty or further obligation if any person significantly
involved in initiating, negotiating, securing, drafting or creating the contract on behalf of the Area
Agency is or becomes at any time while the contract or an extension of the contract is in effect an
employee of or a consultant to any other party to this contract with respect to the subject matter of
the contract. The cancellation shall be effective when the Contractor receives written notice of
the cancellation unless the notice specifies a later time. If the Contractor is a political subdivision
of the State, it may also cancel this contract as provided in A.R.S §38-511.
b. Gratuities The Area Agency may, by written notice to the Contractor, terminate this contract in
whole or in part if Area Agency determines that employment or a gratuity was offered or made by
the Contractor or a representative of the Contractor to any officer or employee of the Area
Agency for the purpose of influencing the outcome of the procurement or securing the contract,
an amendment to the contract, or favorable treatment concerning the contract, including the
making of any determination or decision about contract performance. The Area Agency, in
addition to any other rights or remedies, shall be entitled to recover exemplary damages in the
amount of three times the value of the gratuity offered by the Contractor.
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c. Suspension or Debarment The Area Agency may, by written notice to the Contractor,
immediately terminate this contract if the Area Agency determines that the Contractor has been
debarred, suspended or otherwise lawfully prohibited from participating in any public
procurement activity, including but not limited to, being disapproved as a subcontractor of any
public procurement unit or other governmental body. Submittal of an offer or execution of a
contract shall attest that the Contractor is not currently suspended or debarred. If the Contractor
becomes suspended or debarred, the Contractor shall immediately notify the Area Agency. If a
Contractor has, prior to or during this contract, been debarred, suspended or otherwise lawfully
prohibited from participating in any public procurement activity, the Contractor shall disclose that
information to Area Agency.
d. Termination for Convenience The Area Agency reserves the right to terminate the contract, in
whole or in part at anytime, when in the best interests of the Area Agency without penalty or
recourse. In addition, the Area Agency has the right to terminate the contract upon the
contractor’s noncompliance which does or may jeopardize any Area Agency fund source
requirements, standards, or expectations. Upon receipt of the written notice, the Contractor shall
stop all work, as directed in the notice, notify all subcontractors of the effective date of the
termination and minimize all further costs to the Area Agency. In the event of termination under
this paragraph, all documents, data and reports prepared by the Contractor under the contract shall
become the property of and be delivered to Area Agency upon demand. The Contractor shall be
entitled to receive just and equitable compensation for work in progress, work completed and
materials accepted before the effective date of the termination. The cost principles and
procedures provided in A.A.C. R2-7-701 shall apply. The Contractor may terminate this contract
at any time by providing at least sixty (60) days written notice to the Area Agency.
e. Termination for Default
i. In addition to the rights reserved under the contract, Area Agency may terminate the
contract in whole or in part due to the failure of the Contractor to comply with any term
or condition of the contract, to acquire and maintain all required insurance policies,
bonds, licenses and permits, or to make satisfactory progress in performing the contract.
The Area Agency President/CEO shall provide written notice of the termination and the
reasons for it to the Contractor by certified mail, return-receipt requested.
ii. Upon termination under this paragraph, all goods, materials, documents, data and reports
prepared by the Contractor under the contract shall become the property of and be
delivered to the Area Agency on demand.
iii. This contract is voidable and subject to immediate termination by Area Agency upon the
Contractor becoming insolvent or filing proceedings in bankruptcy or reorganization
under the United States Code, or upon assignment or delegation of the contract and/or
any rights there under without Area Agency's prior written approval.
iv. Area Agency may, upon termination of this contract, procure, on terms and in the manner
that it deems appropriate, materials or services to replace those under this contract. The
Contractor shall be liable to the Area Agency for any excess costs incurred by the Area
Agency in procuring materials or services in substitution for those due from the
Contractor.
v. This contract may immediately be terminated if Area Agency determines that the health
or welfare or safety of service recipients is endangered.
f. Continuation of Performance Through Termination The Contractor shall continue to perform, in
accordance with the requirements of the Contract, up to the date of termination, as directed in the
termination notice.
10. Contract Claims All contract claims or controversies under this contract shall be resolved
according to A.R.S. Title 41, Chapter 23, Article 9, and rules adopted thereunder.
11. Arbitration The parties to this contract agree to resolve all disputes arising out of or relating
to this contract through arbitration, after exhausting applicable administrative review, to the extent
required by A.R.S. §12-1518, except as may be required by other applicable statutes (Title 41).
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SPECIAL TERMS AND CONDITIONS
1. Definitions In addition to the terms and conditions defined in Section 1 of the Uniform Terms and
Conditions, the following shall apply.
a. Additional Insured specifically includes all agencies and requirements as identified in Section
3.c. Additional Insured Requirements.
b. Department means the Arizona Department of Economic Security (DES), unless otherwise
indicated.
c. Level of Service as used throughout these Special Terms and Conditions and Service
Specifications, means the number of units of service specified in the Contract Summary page.
d. May indicates something that is not mandatory but permissible.
e. Shall, Must indicates a mandatory requirement. Failure to meet these mandatory requirements
may result in default of contract.
f. Should indicates something that is recommended but not mandatory. If the Contractor fails to
provide recommended information or comply with a “should” statement in a Scope of Work,
Service Specification, or Area Agency directive, Area Agency may, at its sole option, ask the
Contractor to provide the information or comply with the action.
g. Vulnerable adult means an individual who is eighteen years of age or older who is unable to
protect himself from abuse, neglect or exploitation by others because of a physical or mental
impairment.
2. Contract Administration and Operation
a. Compliance with Applicable Laws All changes in the governing laws, rules, and regulations
during the term of this contract shall apply but do not require an amendment to this contract. In
addition to the terms and conditions in Section 7 of the Uniform Terms and Conditions, the
following shall apply:
i. In accordance with A.R.S. §36-557 as may be amended (Purchase of community
development disabilities services; application; contracts; limitation), as applicable, all
recipients of contract services shall have all of the same specified rights as they would
have if enrolled in a service program operated directly by the State.
ii. Nothing in this contract shall be construed as a waiver of an Indian tribe’s sovereign
immunity; nothing shall be construed as an Indian tribe’s consent to be sued or as consent
by an Indian tribe to jurisdiction of any State Court.
iii. The Contractor shall comply with the requirements related to reporting to a peace officer
or to child or adult protective services incidents of child abuse or neglect as specified in
A.R.S. §13-3620 and elder abuse as specified in A.R.S. §46-454 as may be amended.
iv. The Contractor shall comply with Public Law 101-121, Section 319 (31 USC Section
1352) as may be amended and 29 CFR Part 93 as may be amended which prohibits the
use of federal funds for lobbying and which states, in part: Except with the express
authorization of Congress, the Contractor, its employees or agents, shall not utilize any
federal funds under the terms of this contract to solicit or influence, or to attempt to
solicit or influence, directly or indirectly, any member of Congress regarding pending or
prospective legislation. Indian tribes, tribal organizations and other Indian organizations
are exempt from these lobbying restrictions with respect to expenditures that are
specifically permitted by other federal law.
v. The Contractor shall comply with all applicable state and federal statutes and regulations.
This shall include A.R.S. § 23-722.01 as may be amended relating to new hire reporting,
A.R.S. § 23-722.02 as may be amended relating to wage assignment orders to provide
child support, and A.R.S. § 25-535 as may be amended relating to administrative or
court-ordered health insurance coverage for children.
vi. The Contractor shall comply with P.L. 105-285, Section 678F(a) which prohibits the use
of funds for the purchase of improvement of land or purchase, construction or permanent
improvement (other than low-cost residential weatherization or other energy-related
14
home repairs) of any building or other facility.
vii. The Contractor shall comply with P.L. 105-285, Section 678F(b) which prohibits the use
of CSBG funds of the provision of services or the employment or assignment of
personnel in a manner supporting any bi-partisan or non-partisan political activity or
political activity associated with a candidate, or contending faction or group, in an
election for public or party office; any activity to provide transportation to the polls or
similar assistance in connection with and such election, any voter registration activity.
b. Contract Extension The Area Agency has no obligation to extend or renew this contract. At
the sole option of the Area Agency, this contract may be extended or renewed for multiple
periods, or may be established as a multi-year contract in its entirety or in part. Any extension or
renewal must be made prior to the end of the contract period specified in this contract.
c. Contract Term
i. The term of this contract shall be for the period of time from the contract begin date to
the contract termination date as awarded in a contract or extended in an amendment.
ii. The begin date of the contract term is the date that the Contractor may start to provide
services under this contract. The Contractor shall not provide services prior to contract
term commencing or after the end date of the contract (no billable activity outside the
effective dates).
d. Cooperation and Understanding
i. Area Agency may undertake or award other contracts for additional work related to the
work performed by the Contractor, and the Contractor shall fully cooperate with such
other Contractors and Area Agency employees, and carefully fit its own work to such
other Contractors' work. The Contractor shall not commit or permit any act which will
interfere with the performance of work by any other Contractor or Area Agency
employees. The Contractor shall cooperate as the Area Agency deems necessary, with
the transfer of work, services, case records and files performed or prepared by the
Contractor to other Contractor(s).
ii. In order for Area Agency to accomplish a comprehensive and coordinated service
response system, some services must be provided through a joint venture between Area
Agency and the Contractor. Area Agency recognizes the Contractor's role as both
integral and significant to the delivery of services and understands the importance of a
true partnership between itself and the Contractor. To this end, Area Agency recognizes
the autonomy of the Contractor and will try to avoid unnecessary demands on the
operations and business practices of the Contractor.
iii. Transfer of Knowledge: The Contractor shall, whenever feasible, share strategies and
techniques with Department staff to transfer the skills and knowledge acquired in the
delivery of the contracted service.
e. Certifications The Contractor agrees to sign the following certifications within this contract:
i. the Certification Regarding Lobbying form, compliance with 49 CFR part 20
ii. the Certification Regarding Debarment, Suspension and Voluntary Exclusion Lower Tier
Covered Transactions form.
f. Federal Immigration and Nationality Act
i. By entering into the Contract, the Contractor warrants compliance with the Federal
Immigration and Nationality Act (FINA) and all other Federal immigration laws and
regulations related to the immigration status of its employees. The Contractor shall obtain
statements from its subcontractors certifying compliance and shall furnish the statements
to the Area Agency President/CEO upon request. These warranties shall remain in effect
through the term of the contract. The Contractor and its subcontractors shall also maintain
Employment Eligibility Verification forms (I-9) as required by the U.S. Department of
Labor's Immigration and Control Act, for all employees performing work under the
Contract.
ii. Area Agency may request verification of compliance for any Contractor or subcontractor
performing work under the contract. Should the Area Agency suspect or find that the
Contractor or any of its subcontractors are not in compliance, Area Agency may pursue
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any and all remedies allowed by law, including, but not limited to: suspension of work,
termination of the contract for default, and suspension and/or debarment of the
Contractor. All costs necessary to verify compliance are the responsibility of the
Contractor.
g. Predecessor and Successor Contracts The execution or termination of this contract shall not be
considered a waiver by Area Agency of any and all rights it may have for damages suffered
through a breach of this or prior contract with the Contractor.
h. Substantial Interest Disclosure
i. Contractor shall not make any payments, either directly or indirectly, to any person,
partnership, corporation, trust, or any other organization which has a substantial interest
in Contractor's organization or with which Contractor (or one of its directors, officers,
owners, trust certificate holders or a relative thereof) has a substantial interest, unless
Contractor has made a full written disclosure of the proposed payments, including
amounts, to Area Agency.
ii. Leases or rental agreements or purchase of real property which would be covered by the
above paragraph of this section shall be in writing and accompanied by an independent
commercial appraisal of fair market rental, lease, or purchase value, as appropriate.
iii. For the purpose of this section, the relative shall have the same meanings as in A.R.S.
§38-502 as may be amended.
i. Termination for Any Reason
i. In the event the contract is terminated, with or without cause, or expires, the Contractor
whenever determined appropriate by Area Agency, shall assist the Area Agency in the
transition of services or eligible persons to other contractors. Such assistance and
coordination shall include, but not be limited to, the forwarding of program and other
records as may be necessary to assure the smoothest possible transition and continuity of
services. The cost of reproducing and forwarding such records and other materials shall
be borne by the Contractor. The Contractor must make provisions for continuing all
management/administrative services until the transition of services or eligible persons is
complete and all other requirements of this contract are satisfied.
ii. In the event of termination or suspension of the contract by Area Agency, such
termination or suspension shall not affect the obligation of the Contractor to indemnify
Area Agency, the State, and DES for any claim by any other party against Area Agency,
the State, or DES arising from the Contractor's performance of this contract and for
which the Contractor would otherwise be liable under this contract. To the extent such
indemnification is excluded by A.R.S. §41-621 et seq. as may be amended or an
obligation is unauthorized under A.R.S. §35-154 as may be amended, the provisions of
this paragraph shall not apply.
iii. In the event of early termination for any reason, any funds advanced to the Contractor
shall be returned to Area Agency within ten (10) days after the date of termination of the
contract or upon receipt of notice of termination of the contract, whichever is earlier.
j. Transfer of Knowledge The contractor shall, whenever feasible, share strategies and
techniques with the Area Agency to transfer the skills and knowledge acquired in the delivery of
the contracted service.
k. Transition of Activities In the event that a contract is awarded to a new contractor for services
similar to those being performed by Contractor under this contract, there shall be a transition of
services period. During this period, the Contractor under this contract, shall work closely with
the new contractor’s personnel and/or Area Agency staff to ensure a smooth and complete
transfer of duties and responsibilities. Area Agency’s authorized representative will coordinate
all transition activities. A transition plan will be developed in conjunction with the existing
Contractor to assist the new contractor and/or Area Agency staff to implement the transfer of
duties. Area Agency reserves the right to determine which projects/service delivery nearing
completion will remain with the current Contractor of record.
l. Offshore Performance of Work Prohibited Due to security and identity protection concerns,
direct services under this contract shall be performed within the borders of the United States. Any
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services that are described in the specifications or scope of work that directly serve the State of
Arizona or its clients and may involve access to secure or sensitive data or personal client data or
development or modification of software for the Area Agency shall be performed within the
borders of the United States. Unless specifically stated otherwise in the specifications, this
definition does not apply to indirect or “overhead” services, redundant back-up services or
services that are incidental to the performance of the contract. All storage and processing of
information shall be performed within the borders of the United States. This provision applies to
work performed by subcontractors at all tiers.
m. Pandemic Contractual Performance
i. The State shall require a written plan that illustrates how the Contractor shall perform up
to contractual standards in the event of a pandemic. Area Agency may require a copy of
the plan at anytime prior or post award of a contract. At a minimum, the pandemic
performance plan shall include:
1. Key succession and performance planning if there is a sudden significant
decrease in Contractor’s workforce.
2. Alternative methods to ensure there are services or products in the supply chain.
3. An up to date list of company contacts and organizational chart.
ii. In the event of a pandemic, as declared by the Governor of Arizona, U.S. Government or
the World Health Organization, which makes performance of any term under this
contract impossible or impracticable, the Area Agency shall have the following rights:
1. After the official declaration of a pandemic, Area Agency may temporally void
the contract(s) in whole or specific sections if the Contractor cannot perform to
the standards agreed upon in the initial terms.
2. Area Agency shall not incur any liability if a pandemic is declared and
emergency procurements are authorized by the Director of the Arizona
Department of Administration per A.R.S. §41-2537 as may be amended of the
Arizona Procurement Code.
3. Once the pandemic is officially declared over and/or the Contractor can
demonstrate the ability to perform, Area Agency, at its sole discretion, may
reinstate the temporarily voided contract(s).
3. Indemnification and Insurance
a. Indemnification Clause The parties to this contract agree that the Area Agency, State of
Arizona and the Department of Economic Security (DES) shall be indemnified and held harmless
by Contractor for the vicarious liability of the Area Agency, State and/or DES as a result of
entering into this contract. However, the parties further agree that the Area Agency, State of
Arizona and DES shall each be responsible for its own negligence. Each party to this contract is
responsible for its own negligence. This indemnity shall not apply if the Contractor or sub-
contractor(s) is/are an agency, board, commission or university of the State of Arizona.
b. Insurance Requirements Contractor and subcontractors shall procure and maintain until
all of their obligations have been discharged, including any warranty periods under this Contract,
are satisfied, insurance against claims for injury to persons or damage to property which may
arise from or in connection with the performance of the work hereunder by the Contractor, his
agents, representatives, employees or subcontractors.
The insurance requirements herein are minimum requirements for this Contract and in no
way limit the indemnity covenants contained in this Contract. The Area Agency, State of
Arizona, and DES in no way warrants that the minimum limits contained herein are sufficient to
protect the Contractor from liabilities that might arise out of the performance of the work under
this contract by the Contractor, its agents, representatives, employees or subcontractors, and
Contractor is free to purchase additional insurance.
c. Additional Insured Requirements For the purposes of this contract, the identified
agencies and specific language shall be identified as additional insured for all contract required
insurance policies. The policies shall include or be endorsed to include the following provisions:
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i. Required Agencies:
Area Agency on Aging, Region One Incorporated
State of Arizona and Department of Economic Security
Bridgeway Health Solutions
EverCare Select
n/a Maricopa County Public Health Department / Magellan
Mercy Care
SCAN Health System
ii. The policy shall be endorsed to include the following Additional Insured language:
“The Additional Insured agencies, their departments, agencies, boards, commissions,
universities and its officers, officials, agents, and employees shall be named as additional
insured with respect to liability arising out of the activities performed by or on behalf of
the Contractor and including involvement of owned, leased, hired, or borrowed vehicles
by the Contractor".
iii. All Additional Insured shall be covered to the full limits of liability purchased by the
Contractor, even if those limits of liability are in excess of those required by this contract.
iv. The Contractor’s insurance coverage shall be primary insurance with respect to all other
available sources.
v. Coverage provided by the Contractor shall not be limited to the liability assumed under
the indemnification provisions of this contract.
vi. The Additional Insured endorsement(s), where applicable to liability policies required
under these provisions, and which extend policy rights to the Area Agency, shall insure
only the vicarious liability to the extent stated in the Indemnification Clause.
d. Minimum Scope and Limits of Insurance Contractor shall provide coverage with limits of
liability not less than those stated below.
i. Commercial General Liability – Occurrence Form Policy shall include bodily
injury, property damage, personal injury and broad form contractual liability coverage.
General Aggregate $3,000,000
Products – Completed Operations Aggregate $1,000,000
Personal and Advertising Injury $1,000,000
Blanket Contractual Liability – Written & Oral $1,000,000
Fire Legal Liability $ 50,000
Each Occurrence $1,000,000
1. The policy shall be endorsed to include coverage for sexual abuse and
molestation.
2. Policy shall contain a waiver of subrogation against all agencies identified in
Additional Insured Requirements, Section 3.c., their departments, agencies,
boards, commissions, universities and its officers, officials, agents, and
employees for losses arising from work performed by or on behalf of the
Contractor. This requirement may be satisfied with a policy combining General
and Professional Liability, provided that the General Liability section of the
policy is written on an occurrence basis, and includes coverage for contractual
liability.
ii. Business Automobile Liability Bodily Injury and Property Damage for any
owned, hired, leased, and/or non-owned vehicles used in the performance of this
Contract.
Combined Single Limit (CSL) $1,000,000
1. The policy shall be endorsed to include the following additional insured
language: The Additional Insured shall be named as additional insured with
respect to liability arising out of the activities performed by or on behalf of the
Contractor, involving automobiles owned, leased, hired or borrowed by the
Contractor.
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2. Policy shall contain a waiver of subrogation against the Additional Insured, its
departments, agencies, boards, commissions, universities and its officers,
officials, agents, and employees for losses arising from work performed by or on
behalf of the Contractor.
3. This section, Business Automobile Liability, shall not be applicable in the event
the Contractor (or its subcontractors) does not utilize a vehicle in any manner in
the performance of this contract or if the utilization is used only for commuting
purposes. In the event the Contractor (or its subcontractors) subsequently utilizes
any vehicle in the performance of the contract or utilizes it for other than
commuting purposes, this section, Business Automobile Liability, shall be fully
applicable, effective the date the utilization is changed.
iii. Workers Compensation and Employers’ Liability
1. Workers’ Compensation Statutory
2. Employers’ Liability
a. Each Accident $ 500,000
b. Disease – Each Employee $ 500,000
c. Disease – Policy Limit $1,000,000
3. Policy shall contain a waiver of subrogation against all agencies identified in
Additional Insured Requirements, Section 3.c., their departments, agencies,
boards, commissions, universities and its officers, officials, agents, and
employees for losses arising from work performed by or on behalf of the
Contractor.
4. This requirement shall not apply to: Separately, EACH contractor or
subcontractor exempt under A.R.S. §23-901, AND when such contractor or
subcontractor executes the appropriate waiver (Sole Proprietor/Independent
Contractor) form.
iv. Professional Liability (Errors and Omissions Liability)
1. Requirements as follows
a. Each Claim $1,000,000
b. Annual Aggregate $2,000,000
2. In the event that the professional liability insurance required by this Contract is
written on a claims-made basis, Contractor warrants that any retroactive date
under the policy shall precede the effective date of this Contract; and that either
continuous coverage will be maintained or an extended discovery period will be
exercised for a period of two (2) years beginning at the time work under this
Contract is completed. The requirement for a policy Annual Aggregate of
$2,000,000 above may also be substituted with an endorsement to the
Contractor’s or subcontractor’s (as the case may be) showing “Unimpaired
Annual Aggregate $1,000,000 for all agencies as identified in the Additional
Insured Requirements, Section 3.c., with respect to contracts with the Area
Agency.”
3. Policy shall contain a waiver of subrogation against the all agencies identified in
Additional Insured Section, their departments, agencies, boards, commissions,
universities and its officers, officials, agents, and employees for losses arising
from work performed by or on behalf of the Contractor.
4. The policy shall cover professional misconduct or lack of ordinary skill for those
positions defined in the Scope of Work and Service Specifications, work
definitions, and other performance statements of this contract.
v. Fidelity Bond or Crime Insurance
Bond Policy Limit $100,000
1. The bond or policy shall be issued with minimum limits of $100,000.
2. The bond or policy shall include coverage for all directors, officers, agents and
employees of the Contractor.
3. The bond or policy shall include coverage for third party fidelity.
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4. The bond or policy shall include coverage for theft and mysterious
disappearance.
5. The bond or policy shall contain no requirement for arrest and conviction.
6. The bond or policy shall cover loss outside the premises of the Named Insured.
e. Notice of Cancellation Each insurance policy required by the insurance provisions of this
Contract shall provide the required coverage and shall not be suspended, voided, canceled, or
reduced in coverage or in limits except after thirty (30) days prior written notice has been given to
the Area Agency. Such notice shall be sent directly to the Area Agency Contracts Department
and shall be sent by certified mail, return receipt requested.
f. Acceptability of Insurers Insurance is to be placed with duly licensed or approved non-
admitted insurers in the state of Arizona with an “A.M. Best” rating of not less than A- VII. The
Area Agency in no way warrants that the above-required minimum insurer rating is sufficient to
protect the Contractor from potential insurer insolvency. If the social services program utilizes
the Social Service Contractors Indemnity Pool (SSCIP) or other approved insurance pool for
insurance coverage, SSCIP or the other approved insurance pool is exempt from the A.M. Best’s
rating requirements listed in this contract. If the Contractor or subcontractor chooses to use
SSCIP or another approved insurance pool as its insurance provider, the contract/subcontract
would be considered in full compliance with insurance requirements relating to the A.M. Best
rating requirements.
g. Verification of Coverage
i. Contractor shall furnish the Area Agency with certificates of insurance (ACORD form or
equivalent form approved by Area Agency) as required by this Contract. The certificates
for each insurance policy are to be signed by a person authorized by that insurer to bind
coverage on its behalf.
ii. All certificates and endorsements are to be received and approved by the Area Agency
before work commences. Each insurance policy required by this Contract must be in
effect at or prior to commencement of work under this Contract and remain in effect for
the duration of the project. Failure to maintain the insurance policies as required by this
Contract, or to provide evidence of renewal, is a material breach of contract.
iii. All certificates required by this Contract shall be sent directly to Area Agency Contracts
Department. The Area Agency contract number and contract description shall be noted
or referenced on the certificate of insurance. The Area Agency reserves the right to
require complete, certified copies of all insurance policies required by this Contract at
any time.
h. Subcontractors Contractors’ certificate(s) shall include all subcontractors as insureds
under its policies or Contractor shall furnish to the Area Agency separate certificates and
endorsements for each subcontractor. All coverage for subcontractors shall be subject to the
minimum requirements identified within this contract.
i. Approval Any modification or variation from the insurance requirements in this Contract
shall be made by the Area Agency, whose decision shall be final. Such action will not require a
formal Contract amendment, but may be made by administrative action.
j. Exceptions
i. In the event the Contractor or subcontractor(s) is/are a public entity, then the Insurance
requirements shall not apply. Such public entity shall provide a Certificate of Self-
Insurance. If the Contractor or subcontractor(s) is/are a State of Arizona agency, board,
commission, or university, none of the above shall apply.
ii. In the event that Contractor determines that it may not be able to comply fully with the
insurance requirements set forth in this section and contract, the Contractor may request
that the insurance requirements be modified pursuant to paragraph 3.i. Approval,
provided that such request be delivered in writing to Area Agency at least ten days prior
to contract execution. Contractor shall include with such request Contractor’s
justification for the modification with supporting documentation.
1. As provided in paragraph 3.i. Approval, the Area Agency President/CEO shall
decide whether to approve the modification.
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2. Modifications that are approved will be done so on a case-by-case basis and shall
not affect the insurance requirements of other Contractors for whom
modifications have not been approved. If a Contractor’s request has not been
approved or a Contractor fails to deliver its request prior to the applicable
deadline, then the Contractor shall be required to comply fully with the insurance
requirements set forth fully in this Section 3, Indemnification and Insurance.
iii. For any Contractor or subcontractor, which is a public entity (but not a state agency or
state university referred to in paragraph j.i. above) the indemnification and insurance
requirements are replaced in their entirety by the following:
INDEMNIFICATION: To the extent permitted by law, each party (as
"Indemnitor") agrees to indemnify, defend, and hold harmless the other party (as
"Indemnitee") from and against any and all claims, losses, liability, costs, or expenses
(including reasonable attorney's fees) (hereinafter collectively referred to as "Claims")
arising out of bodily injury of any person (including death) or property damage, but only
to the extent that such Claims which result in vicarious/derivative liability to the
Indemnitee are caused by the act, omission, negligence, misconduct, or other fault of the
Indemnitor, its officers, officials, agents, employees, or volunteers.
In addition, Contractor shall cause its contractor(s) and subcontractors, if any, to
indemnify, defend, save and hold harmless the all agencies identified in Additional
Insured Section, any jurisdiction or agency issuing any permits for any work arising out
of this Agreement, and their respective directors, officers, officials, agents, and
employees (hereinafter referred to as “Indemnitee”) from and against any and all claims,
actions, liabilities, damages, losses, or expenses (including court costs, attorneys’ fees,
and costs of claim processing, investigation and litigation) (hereinafter referred to as
“Claims”) for bodily injury or personal injury (including death), or loss or damage to
tangible or intangible property caused, or alleged to be caused, in whole or in part, by the
negligent or willful acts or omissions of Contractor’s contractor or any of the directors,
officers, agents, or employees or subcontractors of such contractor. This indemnity
includes any claim or amount arising out of or recovered under the Workers’
Compensation Law or arising out of the failure of such contractor to conform to any
federal, state or local law, statute, ordinance, rule, regulation or court decree. It is the
specific intention of the parties that the Indemnitee shall, in all instances, except for
Claims arising solely from the negligent or willful acts or omissions of the Indemnitee, be
indemnified by such Contractor from and against any and all claims. It is agreed that
such Contractor will be responsible for primary loss investigation, defense and judgment
costs where this indemnification is applicable.
For subcontractors which are not public entities, insurance provisions 3.a through
3.i Approval above shall apply.
iv. For any Contractor or subcontractor, which is a Tribal government, the indemnification
and insurance requirements are replaced in their entirety by the following: Each party is
responsible for its own negligence. Contractor is insured under the federal tort claims
act.
4. Services
a. Services The Contractor shall provide the services as identified in the Contract Summary
of this contract in accordance with the following:
i. Scope of Work(s);
ii. Service Specification(s);
iii. Approved Methodology(s);
iv. Approved Budget or Rate;
v. Approved Outreach Plan(s), if applicable; and
vi. Other Area Agency manuals, policies, procedures, and directives.
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b. Delivery of Services Contractor shall notify and obtain prior approval from Area Agency for
modifications affecting the delivery of services which may include but is not limited to the
following:
i. Increase or decrease in the number of days of operations to existing facilities.
ii. Increase or decrease in the number of facilities where services are provided.
iii. Area Agency approved changes to the Contract Supporting Document.
c. Levels of Service
i. For designated non-case managed services, if the Contractor determines service recipient
eligibility, the Contractor shall maintain and regulate the units or services set forth in this
contract to ensure continuity and availability of services to eligible persons during the
term of this contract and during any transition to a subsequent Contractor.
ii. Area Agency makes no guarantee to purchase specific quantities of goods or services, or
to refer eligible persons as may be identified or specified herein.
iii. Further, it is understood and agreed that this contract is for the sole convenience of the
Area Agency and that the Area Agency reserves the right to obtain like goods or services
from other sources when such need is determined necessary by the Area Agency.
iv. Area Agency makes no guarantee to purchase all of the service units contracted or to
provide any number of referrals. If quantities of units are specified, they are estimates
only and the Area Agency may decrease and/or increase them by providing written notice
to the Contractor.
v. Any administration within the Area Agency may obtain services under this contract.
vi. Contract services may be moved or expanded to other site locations within the
geographic area awarded only by a written contract amendment.
vii. When the method of compensation for the service is Fixed Price with Price Adjustment,
the contract may be amended, by mutual agreement, to purchase additional services by
increasing the contract service budget and/or budget summary.
1. It is expected that the Contractor will serve in excess of contract authorized, case
managed, units by as much as 10% without obligation for an Area Agency
funding increase.
2. Contractor is expected to serve, at least, within 90% of contracted levels of
service. The Area Agency reserves the right to amend the contract funding and
units within the contract to correspond with projected levels of service.
5. Contract Compensation
a. Availability of Funds
i. The provisions of this contract relating to payment for services shall become effective
when funds assigned for the purpose of compensating the Contractor, as herein provided,
are actually available to the Area Agency for disbursement. The Area Agency
President/CEO shall be the authority in determining the availability of funds under this
contract and the Area Agency shall keep the Contractor fully informed as to the
availability of funds.
ii. If any action is taken by any county, state agency, federal department, or any other
agency or instrumentality to suspend, decrease, or terminate its fiscal obligation under, or
in connection with this Contract, the Area Agency may reduce funding, rates, and/or
services or terminate this contract without further recourse, obligation, or penalty in the
event that insufficient funds are appropriated or allocated.
iii. The Area Agency President/CEO shall have the sole and unfettered discretion in
determining the availability of funds.
iv. Area Agency and the Contractor may mutually agree to reduce reimbursement to the
Contractor when the payment type is Fixed Price with Price Adjustment by executing a
contract amendment.
v. Funds may not presently be available for performance under this Contract beyond the
current fiscal year. No legal liability on the part of the Area Agency for any payment
may arise under this Contract beyond the current fiscal year of the Contract Term until
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funds are made available for performance of this Contract. The Area Agency shall make
reasonable efforts to secure such funds.
b. Contract Payment Types In addition to the terms and conditions in Section 4 of the
Uniform Terms and Conditions, payments regarding this contract shall be made according to the
type of payment indicated with the check mark and as identified on the Contract Summary
page(s) and defined as follows:
i. Rate or Fixed Price – The Contractor is paid a specified amount for each unit of
service or deliverable as designated in the contract, not to exceed the maximum number
of units if indicated by the Area Agency for each contract service/deliverable. Area
Agency may authorize units and adjust funding based on those authorized units
throughout the term of the contract by amending he contract or through the process of
issuing release orders. A Release Order is a separate document that may increase or
decrease units and funds throughout the term of the contract without amending the
contract. A client specific referral is considered a form of release order as well as a
purchase authorization or other similar named document.
ii. n/a Fixed Price With Price Adjustment - Reimbursement to the Contractor is in
accordance with actual, allowable costs incurred consistent with each Contract Budget
and/or Contract Summary not to exceed the service reimbursement ceiling. The
Contractor shall furnish Area Agency with an accounting of actual costs incurred
consistent with the categories set forth in the Contract Budget. Budget categories, to
include cost items in a category, may be deleted, added, or modified by a contract
amendment, provided that the Total Service Cost shall not increase unless a price
increase is permitted specifically by Area Agency.
c. Contract Payment Provisions
i. If the Contractor is in any manner in default in the performance of any obligation under
this contract, or if audit exceptions are identified, Area Agency may, at its option and in
addition to other available remedies, either adjust the amount of payment or withhold
payment until satisfactory resolution of the default or exception.
ii. Under no circumstances shall Area Agency make payment to the Contractor:
1. That exceeds the unit authorized as stated in Section 5.b.i, Rate or Fixed Price.
2. That exceeds the service reimbursement ceiling as stated in the Contract
Summary or Contract Budget without an amendment to this contract or
3. Under no circumstances shall Area Agency make payment to the Contractor for
services performed prior to or after the term of the contract without timely
extension or renewal of the contract.
iii. Payments for Fixed Price with Price Adjustment requires that cash reimbursements be
timed to coincide with cash disbursements.
iv. Failure to submit required financial and programmatic reports by the approved due
date(s) may result, at the option of Area Agency, in the assessment of a penalty equal to
one percent (1%) of Area Agency reimbursement ceiling for each occurrence. This
penalty is in addition to the forfeiture allowed by the Uniform General Terms and
Conditions. Should a penalty be assessed, the level of service shall remain unchanged.
v. The Contractor may offer a price reduction adjustment at any time during the term of the
contract. Any price reduction shall be executed by a contract amendment.
d. Compensation for Rate or Fixed Price
i. Subject to the availability of funds and during the period of this contract, the Area
Agency shall pay the fixed unit prices for each unit of service authorized and delivered to
each client in accordance with the Contract Summary.
ii. The Contractor shall not be entitled to bill the Area Agency, nor shall the Area Agency
honor any claim for payment for any client services performed in the development of, or
review of a client's plan of care.
iii. The rates per unit of service as stated in the Contract Summary shall be considered
payment in full for all services and supplies rendered or provided under the terms of this
contract. The Contractor agrees that it will not bill or charge clients, their families,
23
guardian or conservators for services provided under this contract without prior approval
of the Area Agency. The provisions of this section shall not be construed as restricting
the right of the Contractor to bill Medicare for allowable costs, and/or to bill clients for
other services rendered that are not covered by this contract.
iv. The Contractor shall be entitled to bill the Area Agency only for those units of service
that have been performed in accordance with the Service Specifications of this contract
and where the Contractor has obtained a valid client signature each time services were
provided.
v. The Area Agency, working from the Contractor's billing, shall determine the payments to
be made to the Contractor for services. If a discrepancy exists between the Contractor's
billing and the Area Agency's record of authorized clients and units of service, the
amount of the discrepancy will be disallowed and the remainder of the claim processed
for payment. The Contractor shall be notified in writing of the amount and reasons for
any disallowance and shall be afforded the opportunity to document the appropriateness
of the disallowed costs and to resubmit a billing for payment within thirty (30) days of
the original due date. Any disagreement over any disallowance may be submitted by the
Contractor to the disputes process in accordance with the Uniform General Terms and
Conditions.
vi. The Area Agency President/CEO shall be the sole determiner of the availability of funds.
e. Compensation for Fixed Price with Price Adjustment
i. Subject to the availability of funds, Area Agency shall compensate the Contractor for
delivery of the contract services designated within the Service Specifications, provided
that the services are delivered during the term of the contract and in accordance with the
terms and conditions set forth in this contract. The maximum reimbursement ceiling for
all Fixed Price with Price Adjustment services provided during the term of this contract is
stated in the Contract Summary.
ii. At least a ten percent (10%) non-federal match is required for each Area Agency dollar
awarded. This non-federal match may be either cash or in-kind.
iii. If at contract termination the total number of eligible units of service delivered for any
contracted service is less than ninety percent (90%) of the contracted units, Area Agency
reserves the right to adjust payments to the Contractor proportionally.
iv. The Area Agency shall not be obligated to compensate the Contractor for delivery of
contracted services at a ratio greater than the time remaining in the contract year. The
schedule of compensation shall be applied quarterly; therefore, a Contractor may not
exceed compensation greater than 25%, 50%, 75% based on the period of the contract
year served. Area Agency shall have sole and unfettered discretion to deviate from this
schedule.
f. Reporting The Contractor shall report contract revenues and expenditures to the Area
Agency in the manner prescribed by the Reporting Requirements section of these Terms and
Conditions and Service Specifications or other directives. Upon receipt of applicable, accurate,
and complete records, Area Agency shall authorize payment or reimbursement in accordance
with the method(s) indicated by this contract.
6. Area Agency Responsibility
a. Technical Assistance Area Agency may, but shall not be obligated to, provide
technical assistance to the Contractor in the administration of contract services, or relating to the
terms and conditions, policies and procedures governing this contract. Notwithstanding the
foregoing, the Contractor shall not be relieved of full responsibility and accountability for the
provision of contract services in accordance with the terms and conditions set forth herein.
7. Contractor Responsibility
a. Audit
i. In compliance with the Federal Single Audit Act (31 U.S.C. per. 7501-7507 as may be
amended, Contractors designated as sub-recipients, as described in the Office of
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Management and Budget (OMB) Circular A-133, expending federal funds from all
sources totaling $500,000 or more, shall have a yearly audit conducted in accordance
with the audit and reporting standards as prescribed in OMB Circular A-133 as may be
amended. As outlined in A-133. the Audit Reporting Package shall include:
1. Financial statements and a schedule of Expenditures of Federal Awards (SEFA)
2. Summary schedule of prior audit findings
3. Auditors Reports (detailed in the A-133)
4. Corrective Action Plan
ii. The Area Agency’s contract numbers and award amounts must be included on the SEFA.
A copy of the Single Audit Reporting Package and Management Letter, if issued, shall be
submitted to the Area Agency’s Chief Finance Officer within thirty (30) days after
completion of the audit or nine (9) months after the audited period and t the Area
Agency’s Contracts Department.
iii. All Contractors are subject to the programmatic and fiscal monitoring requirements of
Area Agency to ensure accountability of the delivery of all goods and services, as
required under the Federal Single Audit Act. A minimum fiscal requirement for all
Contractors designated as vendors is an annual financial audit which includes Area
Agency contract numbers and award amounts. The Audit Report, Management Letter
and Auditor's Opinion must be submitted to Area Agency within thirty (30) days after the
completion of the audit.
iv. As prescribed in OMB Circular A-133, for-profit subrecipients are subject to compliance
requirements established by the Area Agency. Methods to ensure compliance for Federal
awards made to for-profit subrecipients may include pre-award audits, Area Agency
monitoring during the contract, and post-award audits.
v. Audits of non-profit corporations receiving federal or state monies required pursuant to
federal or state law must be conducted as provided in 31 U.S.C. Section 7501 et seq. and
A.R.S. §35-181.03 and any other applicable statutes, rules, regulations and standards.
b. Background Checks for Employment through the Central Registry. If providing direct
services to children or vulnerable adults, the following shall apply:
i. The provisions of A.R.S. §8-804 (as may be amended) are hereby incorporated in its
entirety as provisions of this contract.
ii. Background checks through the Central Registry shall be conducted for each Contract
employee and volunteer including subcontractors that provide direct services to children
or vulnerable adults. Individuals shall not provide direct services to contract service
recipients until the results of the Central Registry background check is complete and the
results indicate the individual has no disqualifying acts that would prohibit him/her from
providing services to contract service recipients. If the Central Registry background
check specifies any disqualifying act, the individual shall be prohibited from providing
direct services to contract service recipients.
iii. Within thirty (30) days of contract award, the Contractor shall submit to Area Agency the
Request for Search o f Central Registry for Employment form for each employee or
volunteer and subcontractor’s employee or volunteer providing direct services to children
or vulnerable adults.
iv. At least sixty (60) days prior to the contract end date, the Contractor shall submit the
Request for Search o f Central Registry for Employment form for each employee or
volunteer and subcontractor’s employee or volunteer providing direct services to children
or vulnerable adults.
v. The Contractor shall maintain the Central Registry Background Check results in a
confidential file for five (5) years after termination of the contract.
c. Books and Records In addition to the terms and conditions in Section 3.a., Records, of the
Uniform Terms and Conditions, the following shall apply.
i. Contract service records will be maintained in accordance with this contract,
amendment(s), scope(s) of service, service specification(s), and any other Area Agency
policies and directives.
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ii. Any such records not maintained shall mandate an audit exception in the amount of the
inadequately documented expenditures.
iii. Records shall, as applicable, meet the following standards:
1. Adequately identify the service provided and each service recipient’s application
for contract and subcontract activities;
2. Obtain and maintain client signatures signifying receipt of each unit of service.
3. Include personnel records which contain applications for employment, job titles
and descriptions, hire and termination dates, a copy of fingerprint clearance card,
wage rates, and effective dates of personnel actions affecting any of these items;
4. Include time and attendance records for individual employees to support all
salaries and wages paid;
5. Include records of the source of all receipts and the deposit of all funds received
by the Contractor;
6. Include original invoices, statements, sales tickets, billings for services, deposit
slips, etc, and a cash disbursement journal and cancelled checks to reflect all
disbursements applicable to the contract;
7. Include a complete general ledger with accounts for the collection of all costs
and/or fees applicable to the contract; and,
8. Include copies of lease/rental agreements, mortgages and/or any other
agreements which in any way may affect contract expenditures.
iv. Contractor shall preserve and make available all records for a period of five (5) years
from the date of final payment under this contract except as provided in Section 7.q.,
Reporting Requirements, of these Special Terms and Conditions or if subject to HIPAA
which is six (6) years from the date of final payment:
1. If this contract is completely or partially terminated, the records relating to the
work terminated shall be preserved and made available for a period of five years
from the date of any such termination.
2. Records which related to disputes, litigation or the settlement of claims arising
out of the performance of this contract, or costs and expenses of this contract to
which exception has been taken by the Area Agency, shall be retained by the
Contractor until such disputes, litigations, claims or exceptions have been
disposed of.
d. Certification of Cost or Pricing Data By submittal of an offer, the contract, contract
amendment or other official form, the Contractor is certifying that, to the best of the Contractor's
knowledge and belief, any cost or pricing data submitted is accurate, complete and current as of
the date submitted or other mutually agreed upon date. Furthermore, the price to the Area
Agency shall be adjusted to exclude any significant amounts by which the Area Agency finds the
price was increased because the Contractor-furnished cost or pricing data was inaccurate,
incomplete or not current as of the date of certification. Such adjustment by the Area Agency
may include overhead, profit, or fees. The certifying of cost or pricing data does not apply when
contract rates are set by law or regulation.
e. Certification of Rate and/or Budget Contractor certifies the following:
i. The contract Rate or Budget set forth in this contract was prepared in accordance with
applicable Area Agency guidelines and procedures;
ii. The information which was provided to Area Agency by the Contractor for use as a basis
in approving the compensation budget or rate is accurate and in accordance with the
Unallowable Costs section of these terms and conditions;
iii. Similar types of costs were accorded consistent accounting treatment in the development
of the compensation section; and
iv. No costs are included as both direct and indirect costs.
v. The Contractor agrees that the funds received under this contract will be expended to
achieve the purposes of this contract and to meet costs defined as allowable in applicable
federal or state laws, rules, regulations and guidelines. For contracts where costs are
reimbursed, any costs deemed unallowable as determined by a financial audit shall be
26
subject to recoupment pursuant to Personnel section. The Contractor shall be entitled to
appeal such determination through Area Agency's appeal process.
f. Conflict of Interest Contractor is responsible to ensure that volunteers and staff do not
engage in any extraneous, for hire, or non-contractual service tasks or otherwise engage in a
conflict of interest relationship with a service recipient. Contractor shall have a specific Conflict
of Interest policy to include staff training and monitoring system to ensure compliance.
g. Gratuities Contractor and all representatives, staff, and volunteers shall not accept any form
of gratuity including but not limited to cash, promise of cash, property, gifts, or services from
service recipients. Contractor shall have a specific Gratuity Policy including staff training and
monitoring system to ensure compliance.
h. Code of Conduct The Contractor shall avoid action that might create or result in the
appearance of:
i. Inappropriate use or divulging of information gathered or discovered pursuant to the
performance of its duties under the contract;
ii. Act or action on behalf of the Area Agency or contracted funding sources, without
appropriate authorization;
iii. Provide favorable or unfavorable treatment to anyone;
iv. Make a decision on behalf of the Area Agency that exceeds Contractor’s authority, that
could result in impartiality, or have a political consequence for the Area Agency or
contracted funding sources.
v. Misrepresent or otherwise impede the efficiency, authority, actions, policies, or adversely
affect the confidence of the public or integrity of the Area Agency or contracted funding
sources.
vi. Loss of impartiality when advising the Area Agency or contracted funding sources.
i. Competitive Bidding Contractor is authorized to purchase the supplies and equipment itemized
in the contract or specified in an amendment for utilization in the delivery of contract services.
Contractor shall procure all such supplies and equipment at the lowest practicable cost and shall
purchase all non-expendable items, having a useful life of more than one year and an acquisition
cost of $1,000 or more, through generally accepted and reasonable competitive bidding processes.
Any procurement in violation of this provision shall be considered a financial audit exception.
The documentation of bids and bid acceptance decision must be maintained for Area Agency
review.
j. Disaster Preparedness Contractor will develop and implement and emergency
preparedness plan describing agency protocols to assist clients in the event of an
emergency/disaster. The plan should include agency methods of coordination with state and/or
local emergency response agencies. Contractor agrees to conduct staff training on the
implementation of the emergency preparedness plan.
k. Equipment
i. If the Contractor is authorized, specifically by the Area Agency, to purchase equipment,
it shall be itemized in the contract or in the Terms of the amendment for utilization in the
delivery of contract services. If equipment is purchased as authorized by this contract,
the Contractor shall maintain complete and up-to-date inventory records for all
equipment purchased hereunder. Equipment specifically designated within this contract,
to be purchased in whole or part with Area Agency funds, shall be reported in accordance
with Area Agency Finance Manual inventory policies and procedures. The Contractor
shall report equipment purchased with contract funds to Area Agency within thirty (30)
days of purchase, perform an annual inventory of all equipment purchased with Area
Agency funds and submit the equipment inventory to the Area Agency. Reimbursement
claims for equipment must include the detailed receipt identifying the equipment item,
cost including taxes, shipping, and installation, and the type(s) of funds used from the
Area Agency.
ii. The Area Agency and its funding sources shall retain an equitable interest equal to the
purchase price paid, or a fair estimate or appraisal of current market value, whichever is
greater, in all equipment purchased or assigned to the Contractor for the purposes of this
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contract. Area Agency shall be included as a co-insured on any insurance policy which
covers equipment purchased under this contract.
iii. The Contractor shall not dispose of any equipment purchased or assigned under this
contract without the prior written consent of Area Agency during and after the contract
term. Such consent, if given, may include direction as to the means of disposition and the
utilization of proceeds, including any necessary adjustments to the contract.
iv. Upon termination of this contract, any equipment purchased or assigned under this
contract shall be disposed of as directed by Area Agency and, if sold, Area Agency shall
be compensated in the amount of its equitable interest.
v. Under a fixed Price contract, this section does not apply unless specifically requested by
Area Agency or required by federal or state law.
l. E-Verify
i. The Contractor warrants compliance with all Federal immigration laws and regulations
relating to employees and warrants its compliance with A.R.S. §23-214, subsection A as
may be amended which reads: “After December 31, 2007, every employer, after hiring
an employee, shall verify the employment eligibility of the employee through the E-Verify
program.”
ii. A breach of a warrant regarding compliance with immigration laws and regulations shall
be deemed a material breach of the contract and the Contractor may be subject to
penalties up to and including termination of the contract.
iii. Failure to comply with an Area Agency audit process to randomly verify the employment
records of the Contractor and subcontractors shall be deemed a material breach of the
contract and the Contractor may be subject to penalties up to and including termination of
the contract.
iv. Area Agency retains the legal right to inspect the papers of any employee who works on
the contract to ensure that the Contractor or subcontractor is complying with the warranty
statement herein.
m. Fingerprinting The provisions of A.R.S. §46-141 (as may be amended), are hereby
incorporated in their entirety as provisions of this contract. For reference, these provisions
include, but are not limited to, the following:
i. Personnel who are employed by the Contractor, whether paid or not, and who are
required or allowed to provide services directly to juveniles or vulnerable adults shall
submit a full set of fingerprints to the Contractor. The Contractor shall obtain a state and
federal criminal records check pursuant to section 41-1750 and Public Law 92-544 or
shall apply for fingerprint clearance card within seven working days of employment. The
Contractor is required to maintain complete documentation of all personnel checks to
certify and demonstrate all personnel have clearance.
ii. The Contractor shall assume the costs of fingerprint checks and may charge these costs to
its fingerprinted personnel. Area Agency may allow all or part of the costs of fingerprint
checks to be included as an allowable cost in a contract.
iii. Except as provided in A.R.S. §46-141, this contract may be cancelled or terminated
immediately if a person employed by the Contractor and who has contact with juveniles
or vulnerable adults certifies pursuant to the provisions of A.R.S. §46-141 (as may be
amended) that the person is awaiting trial or has been convicted of any of the offenses
listed therein in this State, or of acts committed in another state that would be offenses in
this State, or if the person does not possess or is denied issuance of a valid fingerprint
clearance card.
iv. Personnel who are employed by any Contractor, whether paid or not, and who are
required or allowed to provide services directly to juveniles or vulnerable adults shall
certify on forms provided by the Department of Economic Security and notarized
whether they are awaiting trial on or have ever been convicted of any of the offenses
described in A.R.S. §46-141 (as may be amended).
v. Personnel who are employed by any Contractor, whether paid or not, and who are
required or allowed to provide services directly to juveniles or vulnerable adults shall
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certify on forms provided by the Department of Economic Security and notarized
whether they have ever committed any act of sexual abuse of a child or vulnerable adults,
including sexual exploitation and commercial sexual exploitation, or any act of child or
adult abuse.
vi. Federally recognized Indian tribes or military bases may submit and the Department of
Economic Security shall accept certifications that state that no personnel who are
employed or who will be employed during the contract term have been convicted of, have
admitted committing, or are awaiting trial on any offense as described in A.R.S. §46-141
(H) (as may be amended).
n. IT 508 Compliance Unless specifically authorized in the contract, any electronic or
information technology offered to Area Agency under this contract shall comply with A.R.S. §41-
3531 and 3532 as may be amended and Section 508 of the Rehabilitation Act of 1973, which
requires that employees and members of the public with disabilities shall have access to and use
of information technology that is comparable to the access and use by employees and members of
the public who are not individuals with disabilities.
o. Payment Indemnification The Contractor shall be responsible for issuing payment for services
performed by the Contractor’s employees, subcontractors, suppliers, or any other third party
incurred in the furtherance of the performance or the arising out of the contract and will
indemnify and save the Area Agency harmless for all claims whatsoever out of the lawful
demands of such parties. The Contractor shall, at the Area Agency’s request, furnish satisfactory
evidence that all obligations of the nature hereinabove designated have been paid, discharged or
waived.
p. Payment Recoupment Contractor shall reimburse Area Agency upon demand or Area
Agency may deduct from future payments the for the items below.
i. Any amounts received by the Contractor from Area Agency for contract services which
have been inaccurately reported or are found to be unsubstantiated;
ii. Any amounts paid by the Contractor to a subcontractor not authorized in writing by Area
Agency;
iii. Any amount or benefit paid directly or indirectly to an individual or organization not in
accordance with the Substantial Interest and/or Conflict of Interest, sections 2.h. STC and
9.a. UTC of these terms and conditions;
iv. Any amounts paid by Area Agency for services which duplicate services covered or
reimbursed by other specific grants, contracts, or payments;
v. Any amounts expended for items or purposes determined unallowable by Area Agency.
When this contract provides for the reimbursement of costs, see the Section 7.s.,
Unallowable Costs, of these terms and conditions;
vi. Any amounts paid by Area Agency for which the Contractor's books, records, and other
documents are not sufficient to clearly substantiate that those amounts were used by the
Contractor to perform contract services;
vii. Any amounts received by the Contractor from Area Agency which are identified as a
financial audit exception;
viii. Any amounts paid or reimbursed in excess of the contract or service reimbursement
ceiling;
ix. Any amounts paid to the Contractor which are subsequently determined to be defective
pursuant to the Certification of Cost or Pricing Data section of these terms and
conditions;
x. Any payments made for services rendered before the contract begin date or after the
contract termination date.
q. Reporting Requirements
i. Unless otherwise provided in this contract and specifically excluding the last reporting
month of the contract term, reporting shall adhere to the following schedule: no later than
the tenth (10th) day following each month during the contract term the Contractor shall
submit to Area Agency programmatic and financial reports in the form set forth in the
contract or by Area Agency directive. Failure to submit accurate and complete reports by
29
the tenth (10th) day following the end of each month may result, at the option of Area
Agency, in retention of payment. Failure to provide such report within forty-five (45)
days following the end of a month may result, at the option of Area Agency, in a
forfeiture of such payment.
ii. No later than the twenty-fifth (25th) day following end of each contract term, or other date
specified by Area Agency, the Contractor shall submit to Area Agency a final program
and fiscal report.
iii. Failure to submit the final program and fiscal report within the above time period may
result, at the option of Area Agency, in forfeiture of final payment.
r. Supporting Documents and Information In addition to any documents, reports or
information required by any other section of this contract, Contractor shall furnish Area Agency
with any further documents and information deemed necessary by Area Agency. Upon receipt of
a request for information from Area Agency, the Contractor shall provide complete and accurate
information no later than fifteen (15) days after the receipt of the request.
s. Unallowable Costs The cost principles set forth in the Code of Federal Regulations, 48 CFR,
Chapter 1, Subchapter e, Part 31, (October 1, 1991), including later amendments and editions, on
file with the Arizona Secretary of State and incorporated by this reference, shall be used to
determine the allow ability of incurred costs for the purpose of reimbursing costs under contract
provisions that provide for the reimbursement of costs. Those costs which are specifically
defined as unallowable therein will not be submitted for reimbursement by the Contractor and
may not be reimbursed with Area Agency funds. In addition, the Contractor shall comply with
the following publications (including subsequent revisions) as applicable:
i. OMB Circular A-87 for State, local and Indian tribal governments.
ii. OMB Circular A-122 for private nonprofit organizations other than institutions of higher
education, hospitals or others specified in A-122.
iii. OMB Circular A-21 for educational institutions.
iv. OMB Circular A-133 for audits of institutions of higher education and other non-profit
institutions.
8. Contract Performance Terms
a. Evaluation Area Agency may evaluate and the Contractor shall cooperate in the monitoring,
assessing, and evaluation of contract services. Evaluation may assess the quality and impact of
contract services, either in isolation or in comparison with other similar services, and assess the
Contractor's progress and/or success in achieving the goals, objectives and deliverables set forth
in this contract. As requested by the Area Agency, the Contractor shall participate in third party
evaluations relative to contract impact in support of Area Agency and contract goals.
b. Monitoring Area Agency may monitor the Contractor and/or subcontractor and they shall
cooperate in the monitoring of services delivered, facilities and records maintained and fiscal
practices.
c. Non-Discrimination In addition to the terms and conditions in Section 3.b., Non-
Discrimination, of the Uniform Terms and Conditions, the following shall apply:
i. Unless exempt under federal law, the Contractor shall comply with Title VII of the Civil
Rights Act of 1964 as amended. Contractor shall comply with the Age Discrimination in
Employment Act. The Contractor shall comply with the Rehabilitation Act of 1973, as
amended, which prohibits discrimination in the employment or advancement in
employment of qualified persons because of physical or mental handicap. The
Contractor shall comply with the requirements of the Fair Labor Standards Act of 1938,
as amended.
ii. If Contractor is an Indian Tribal government, Contractor shall comply with the Indian
Civil Rights Act of 1968. It shall be permissible for an Indian Tribal Contractor to
engage in Indian preference in hiring.
iii. The Contractor shall comply with Title VI of the Civil Rights Act of 1964, which
prohibits the denial of benefits of or participation in contract services on the basis of race,
color, or national origin. The Contractor shall comply with the requirements of Section
30
504 of the Rehabilitation Act of 1973, as amended, which prohibits discrimination on the
basis of handicap, in delivering contract services and with Title II of the Americans with
Disabilities Act, and the Arizona Disability Act, which prohibit discrimination on the
basis of physical or mental disabilities in the provision of contract programs, services,
and activities.
iv. The following shall be included in all publications, forms, flyers, etc. that are distributed
to recipients of contract services:
“Under Titles VI and VII of the Civil Rights Act of 1964 (Title VI and VII) and the
Americans with Disabilities Act of 1990 (ADA) Section 504 of the Rehabilitation Act of
1973 and the Age Discrimination Act of 1975, [insert Contractor name here] prohibits
discrimination in admissions, programs, services, activities or employment based on race,
color, religion, sex, national origin, age, and disability. The [insert Contractor name here]
must make a reasonable accommodation to allow a person with a disability to take part in
a program, service, or activity. Auxiliary aids and services are available upon request to
individuals with disabilities. For example, this means that if necessary, the [insert
Contractor name here]must provide sign language interpreters for people who are deaf, a
wheelchair accessible location, or enlarged print materials. It also means that the [insert
Contractor name here]will take any other reasonable action that allows you to take part in
and understand a program or activity, including making reasonable changes to an activity.
If you believe that you will not be able to understand or take part in a program or activity
because of your disability, please let us know of your disability needs in advance if at all
possible. To request this document in alternative format or for further information about
this policy please contact [insert Contractor contact person and phone number here].
Para obtener este documento en otro formato u obtener informacion adicional sobre esta
politica, contact [insert Contractor contact person and phone number here].”
d. Personnel The Contractor’s personnel shall satisfy all qualifications, carry out all duties,
and work the hours set forth in this contract.
e. Professional Standards The Contractor shall deliver contract services in a humane and
respectful manner and in accordance with any and all applicable professional accreditation
standards. Levels of staff qualifications, professionalism, numbers of staff and individuals
identified by name must be maintained as presented in the contract.
f. Visitation, Inspection, and Copying Contractor's or subcontractor's facilities, services and
individuals served, books and records pertaining to the contract shall be available for visitation,
inspection and copying by Area Agency and any other appropriate agent of the state or federal
government. At the discretion of Area Agency, visitation, inspection and copying may be at any
time during regular business hours, announced or unannounced. If Area Agency deems it to be
an emergency situation, it may at any time visit and inspect the Contractor's or subcontractor's
facilities, services, and individuals served, as well as inspect and copy their contract-related books
and records.
9. Programmatic Terms
a. Client Contributions, Fees, and Program Income The Contractor shall impose no fees or charges
of any kind upon recipients of contract services without written approval from the Area Agency
President/CEO. The Contractor shall solicit voluntary contributions from recipients/clients for
services received. The Contractor shall not deny service to any client solely because he/she
refuses to make a contribution. Any contributions generated and received by the Contractor as a
result of contract services must be directly allocated to the contracted service and shall be
disposed of and reported in accordance with the Area Agency Finance Manual.
b. Confidentiality Contractor shall observe and abide by all applicable State and Federal
statues, rules, and regulations regarding the use or disclosure of information including, but not
limited to, information concerning applicants for and recipients of contract services. To the extent
permitted by law, the Contractor shall release information to the Area Agency and/or the
Attorney General’s Office as required by the terms of this contract, by law, or upon their request.
31
c. Fair Hearings and Service Recipients’ Grievances
i. The Contractor shall advise all applicants for and recipients of contract services of their
right, at anytime and for any reason, to present to the Contractor and to Area Agency any
grievances arising from the delivery of contract services, including but not limited to
ineligibility determination, reduction of services, suspension or termination of services,
or quality of services. The Area Agency may assert its jurisdiction to hear the grievance
or refer the matter to the appropriate authority.
ii. The Contractor, whenever authorized by law, shall maintain a formal system acceptable
to and approved by the Area Agency for reviewing and adjudicating grievances by
service recipients or subcontractors arising from this contract.
d. Outcome Measurement Participation The Contractor shall participate with the Area Agency in
efforts to comply with federal and state mandated requirements regarding the tracking of outcome
measurement performance data and standards. Measurement data may be developed through
joint planning efforts between the Contractor and the Area Agency or required as a result of
mandates from federal or state fund sources.
32
CONTRACTOR SPECIFIC TERMS
Subcontract Provisions for ALTCS Funded Service Programs
Based on the Area Agency on Aging’s contract with the ALTCS Agencies, the following provisions are additional
requirements to all subcontractors for adult day health care and home delivered meal services.
1. Relationships of Parties The relationship order is as follows: ALTCS Agency is the contracting agency
with Area Agency, therefore Area Agency is the Contractor, this contract represents the Area Agency’s
subcontract to a subcontractor.
2. Definitions
a. ALTCS shall mean Arizona Long Term Care System
b. ALTCS Agency shall mean individually or collectively the following agencies: Bridgeway, EverCare,
Mercy Care, and SCAN Health Plans.
c. AHCCCSA shall mean Arizona Health Care Cost Containment System Administration.
3. Adult Day Health Care Rates The contracted unit rates for adult day health care shall be subject to the
actions, decisions, and policies of the ALTCS Agencies individually.
4. Assignment and Delegation of Rights and Responsibilities No payment due the Contractor under this
subcontract may be assigned without the prior approval of AHCCCSA. No assignment or delegation of the
duties of this subcontract shall be valid unless prior written approval is received from AHCCCSA. (AAC R2-
7-305)
5. Awards of Other Subcontracts AHCCCSA and/or the ALTCS Agency may undertake or award other
contracts for additional or related work to the work performed by the Contractor and the Contractor shall fully
cooperate with such other contractors, subcontractors or state employees. The Contractor shall not commit or
permit any act which will interfere with the performance of work by any other contractor, subcontractor or
state employee. (AAC R2-7-308)
6. Certification of Compliance – Anti-Kickback and Laboratory Testing By signing this subcontract, the
Contractor certifies that it has not engaged in any violation of the Medicare Anti-Kickback statute (42 USC
§§1320a-7b) or the "Stark I" and "Stark II" laws governing related-entity referrals (PL 101-239 and PL
101-432) and compensation there from. If the Contractor provides laboratory testing, it certifies that it has
complied with 42 CFR §411.361 and has sent to AHCCCSA simultaneous copies of the information required
by that rule to be sent to the Centers for Medicare and Medicaid Services. (42 USC §§1320a-7b; PL 101-239
and PL 101-432; 42 CFR §411.361)
7. Certification of Truthfulness of Representation By signing this subcontract, the Contractor certifies that all
representations set forth herein are true to the best of its knowledge.
8. Clinical Laboratory Improvement Amendments of 1988 The Clinical Laboratory Improvement Amendment
(CLIA) of 1988 requires laboratories and other facilities that test human specimens to obtain either a CLIA
Waiver or CLIA Certificate in order to obtain reimbursement from the Medicare and Medicaid (AHCCCS)
programs. In addition, they must meet all the requirements of 42 CFR 493, Subpart A. To comply with these
requirements, AHCCCSA requires all clinical laboratories to provide verification of CLIA Licensure or
Certificate of Waiver during the provider registration process. Failure to do so shall result in either a
termination of an active provider ID number or denial of initial registration. These requirements apply to all
clinical laboratories. Pass-through billing or other similar activities with the intent of avoiding the above
requirements are prohibited. Prime contractor may not reimburse providers who do not comply with the above
requirements. (CLIA of 1988; 42 CFR 493, subpart A)
33
9. Compliance with AHCCCS Rules Relating to Audit and Inspection The Contractor shall comply with all
applicable AHCCCS Rules and Audit Guide relating to the audit of the Contractor's records and the
inspection of the Contractor's facilities. If the Contractor is an inpatient facility, the Contractor shall file
uniform reports and Title XVIII and Title XIX cost reports with AHCCCSA. (A.R.S. §41-2548; 45 CFR
74.48(d))
10. Compliance with Laws and Other Requirements The Contractor shall comply with all federal, State and
local laws, rules, regulations, standards and executive orders governing performance of duties under this
subcontract, without limitation to those designated within this subcontract. (42 CFR 434.70) [42CFR
438.6(1)]
11. Confidentiality Requirement Confidential information shall be safeguarded pursuant to 42 CFR Part 431,
Subpart F, A.R.S. §36-107, 36-2903, 41-1959 and 46-135, and AHCCCS and/or ALTCS Rules and Health
Insurance Portability and Accountability Act (CFR 164).
12. Conflict of Interpretation of Provisions In the event of any conflict in interpretation between provisions of
this subcontract and the AHCCCS Minimum Subcontract Provisions, the latter shall take precedence.
13. Contract Claims and Disputes Contract claims and disputes shall be adjudicated in accordance with
AHCCCS Rules.
14. Deficit Reduction Act of 2005 Training Contractors shall provide education and training to all staff on the
following aspects of the Federal False Claims Act of 2005: (a) the administrative remedies for false claims
and statements, (b) state laws relating to civil or criminal penalties for false claims and statements, and (c) the
whistleblower protections under such laws. Contractors will retain documentation of such training to include,
but not limited to: materials presented and/or distributed, date, duration, and attendance of training, employee
signatures acknowledging training and compliance.
15. Encounter Data Requirement If the Contractor does not bill the Area Agency (e.g., Contractor is capitated),
the Contractor shall submit encounter data to the Area Agency in a form, acceptable to AHCCCSA.
16. Evaluation of Quality, Appropriateness, or Timeliness of Services AHCCCSA or the U.S. Department of
Health and Human Services may evaluate, through inspection or other means, the quality, appropriateness or
timeliness of services performed under this subcontract.
17. Federal Immigration and Nationality Act The Subcontractor shall comply with all federal, state and local
immigration laws and regulations relating to the immigration status of their employees during the term of the
contract. Further, the Subcontractor shall flow down this requirement to all subcontractors utilized during the
term of the contract. The State shall retain the right to perform random audits of Contractor and
Subcontractor records or to inspect papers of any employee thereof to ensure compliance. Should the State
determine the Contractor and/or any Subcontractors be found noncompliant, the State may pursue all
remedies allowed by law, including, but not limited to: suspension of work, termination of the contract for
default and suspension and/or debarment of the Contractor or Subcontractor.
18. Fraud and Abuse If the Contractor discovers, or is made aware, that an incident of potential fraud or abuse
(related to business operations, not related to client / participant fraud or abuse) has occurred, the Contractor
shall report the incident to the Area Agency and to AHCCCSA Office of Program Integrity. All other
incidents of potential fraud should be reported to AHCCCSA, Office of the Director, Office of Program
Integrity.
19. General Indemnification To the extent permitted by law, the parties to this contract agree that AHCCCS
shall be indemnified and held harmless by the Contractor and Subcontractor for the vicarious liability of
AHCCCS as a result of entering into this contract. However, the parties further agree that AHCCCS shall be
responsible for its own negligence. Each party to this contract is responsible for its own negligence.
34
20. Insurance The Contractor shall maintain for the duration of this subcontract a policy or policies of
professional liability insurance, comprehensive general liability insurance and automobile liability insurance
in amounts that meet Program Contractor Requirements (Special Terms and Conditions, Section 3.,
Indemnification and Insurance). The Contractor agrees that any insurance protection required by this
subcontract, or otherwise obtained by the Contractor, shall not limit the responsibility of Contractor to
indemnify, keep and save harmless and defend the State and AHCCCSA, their agents, officers and employees
as provided herein. Furthermore, the Contractor shall be fully responsible for all tax obligations, Worker's
Compensation Insurance, and all other applicable insurance coverage, for itself and its employees, and
AHCCCSA shall have no responsibility or liability for any such taxes or insurance coverage. (45 CFR Part
74) The requirement for Worker’s Compensation Insurance does not apply when a Subcontractor is exempt
under A.R.S. §23-901, and when such Subcontractor executes the appropriate waiver (Sole Proprietor/
Independent Contractor) form to Area Agency. [This provision applies only if the Contractor provides
services directly to AHCCCS members]
21. Limitations on Billing and Collection Practices Except as provided in federal and state law and regulations,
the Subcontractor shall not bill, or attempt to collect payment from a person who is AHCCCS eligible at the
time the covered service(s) were rendered, or from the financially responsible relative or representative for
covered services that were paid or could have been paid by the System.
22. Maintenance of Requirements to do Business and Provide Services The Subcontractor shall be registered
with AHCCCSA through and in cooperation with the Area Agency and shall obtain and maintain all licenses,
permits and authority necessary to do business and render service under this subcontract and, where
applicable, shall comply with all laws regarding safety, unemployment insurance, disability insurance and
worker's compensation.
23. Non-Discrimination The Subcontractor shall comply with State Executive Order No. 9904, which mandates
that all persons, regardless of race, color, religion, gender, national origin, or political affiliation, shall have
equal access to employment opportunities, and all other applicable Federal and state laws, rules and
regulations, include the Americans with Disabilities Act and Title VI. The Subcontractor shall take positive
action to ensure that applicants for employment, employees, and persons to whom it provides service are not
discriminated against due to race, creed, color, religion, sex, national origin, or disability. (Federal
regulations, State Executive Order #99-4)
24. Prior Authorization and Utilization Management The ALTCS Agency and Contractor shall develop,
maintain and use a system for Prior Authorization and Utilization Review that is consistent with AHCCCS
Rules and the ALTCS Agency's policies.
25. Records And Reports
d. The Subcontractor shall maintain books and records relating to covered services and expenditures
including reports to AHCCCSA and working papers used in the preparation of reports to AHCCCSA.
The Subcontractor shall comply with all specifications for record keeping established by AHCCCSA. All
books and records shall be maintained to the extent and in such detail as required by AHCCCS Rules and
Policies. Records shall include but not be limited to financial statements, records relating to the quality of
care, medical records, dental records, prescription files, and other records specified by AHCCCSA.
e. The Subcontractor agrees to make available at its office at all reasonable times during the term of this
contract and the period set forth in the following paragraphs, any of its records for inspection, audit, or
reproduction by any authorized representative of AHCCCSA, state, or federal government.
f. The Subcontractor shall preserve and make available all records for a period of five (5) years from the
date of final payment under this contract unless a longer period of time is required by law.
g. If this contract is completely or partially terminated, the records relating to the work terminated shall be
preserved and made available for a period of five (5) years from the date of any such termination.
Records which relate to grievances, disputes, litigation or the settlement of claims arising out of the
performance of this contract, or costs and expenses of this contract to which exception has been taken by
35
AHCCCSA, shall be retained by the Subcontractor for a period of five (5) years after the date of final
disposition or resolution thereof unless a longer period of time is required by law. (45 CFT 74.53; 42
CFR 431.17; ARS §41-2548)
26. Severability If any provision of these standard subcontract terms and conditions is held invalid or
unenforceable, the remaining provisions shall continue valid and enforceable to the full extent permitted by
law.
27. Subjection of Subcontract The terms of this subcontract shall be subject to the applicable material terms
and conditions of the contract existing between the Contractor and AHCCCSA for the provision of covered
services.
28. Termination of Subcontract AHCCCSA may, by written notice to the Contractor, terminate this subcontract
if it is found, after notice and hearing by the State, 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 State with a view towards securing a contract or securing favorable treatment with
respect to the awarding, amending or the making of any determinations with respect to the performance of the
Contractor; provided, that the existence of the facts upon which the state makes such findings shall be in issue
and may be reviewed in any competent court. If the subcontract is terminated under this section, unless the
prime contractor is a governmental agency, instrumentality or subdivision thereof, AHCCCSA shall be
entitled to a penalty, in addition to any other damages to which it may be entitled by law, and to exemplary
damages in the amount of three times the cost incurred by the Contractor in providing any such gratuities to
any such officer or employee. (AAC R2-5-501; ARS §41-2616 C.; 42 CFR 434.6,a.(6))
29. Voidability of Subcontract This subcontract is voidable and subject to immediate termination by
AHCCCSA upon the Contractor becoming insolvent or filing proceedings in bankruptcy or reorganization
under the United States Code, or upon assignment or delegation of the subcontract without AHCCCS's prior
written approval.
30. Warranty of Services The Contractor, by execution of this subcontract, warrants that it has the ability,
authority, skill, expertise and capacity to perform the services specified in this contract.
31. Adult Day Health Care Transportation Service Requirements In addition to the DES Scopes of Work and
Area Agency Service Specifications for adult day health care and citizen transportation, the following
requirements shall apply.
a. Subcontractor shall conduct drug and alcohol tests on all employees document such training certifications
and be prepared to provide copies upon request.
b. Subcontractor will train all employees through the National Safety Council and document such training
certifications and be prepared to provide copies upon request.
c. Subcontractor will provide training to employees to include cultural competency, sensitivity training,
needs of the adult day care population including but not limited to those referred to as the aged, blind, and
disabled and document such training certifications and be prepared to provide copies upon request.
d. Transportation service shall include door to door service if the condition of the client requires assistance
between the door and the vehicle.
e. Employees shall provide attendant assistance to clients in and out of the vehicle, including assistance with
wheelchairs, in a safe manner and in accordance with the needs of the client.
36
ARIZONA DEPARTMENT OF ECONOMIC SECURITY
SCOPE OF WORK
20.0 HOME DELIVERED MEALS
20.1 Purpose Statement
20.1.1 The service helps increase the nutrient intake of older adults at nutrition risk and allow them to
remain independent in their homes.
20.2 Service Description
20.2.1 Taxonomy Definition – A service that provides for a nutritious meal containing at least 1/3 of
the Recommended Dietary Allowance for an individual, delivered to his/her place of residence.
20.2.2 Home delivered nutrition services provide older adults, in their home or place of residence,
with nutritious meals that meet 1/3 of the Dietary Reference Intakes.
20.2.3 Home delivered nutrition services provide resources and options, when available, that allow
older adults to remain independent in their homes and communities.
20.2.4 A “wellness check” is conducted at the time of the meal delivery to ensure the general health
and well-being of the client.
20.2.5 The service also provides for the opportunity for socialization.
20.2.6 Eligibility Requirements - The Contractor shall provide services to individuals that meet the
eligibility requirements described in Chapter 3100 of the DAAS Policy and Procedure Manual,
as may be amended.
https://www.azdes.gov/common.aspx?menu=36&menuc=28&id=8252
20.3 Service Requirements – The Contractor shall provide:
20.3.1 Menu planning
1. Develop cycle menus of six weeks or more to be rotated on a semi-annual basis
(every six months).
2. Keep menus available, as served, for audit inspection for at least one year after the
meals have been served.
3. Incorporate ethnic and cultural preferences when planning menus.
4. Ensure a mechanism is in place to solicit the advice and expertise of:
1. a dietitian or other individual described in 20.3.1.11,
2. meal participants, and
3. other individuals knowledgeable with regard to the needs of older individuals
as stated in the DAAS Policy and Procedure Manual, Chapter 3200
5. Plan, prepare, provide and serve meals in accordance with the Arizona Department of
Economic Security Division of Aging and Adult Services “Nutrition, Food Service, and
Wellness Manual” as amended.
6. Ensure that each meal contains at least one-third (1/3) of the current Dietary
Reference Intakes of nutrients, as established by the Food and Nutrition Board of the
National Academy of Science – National Research Council.
7. Ensure that meals are planned following the current Dietary Guidelines for Americans,
as may be amended.
8. Each meal must contain a specified number of calories as defined in the DAAS Policy
and Procedure Manual.
9. Plan a majority of meals as hot. A few cold meals may be planned, such as once a
week during the summer, to add variety to the menu. Examples include chef salad,
sub sandwich or deli plate.
10. Submit menus on a standardized menu form to, and secure the approval of, a
Registered Dietitian (R.D.), Nutritionist, Dietetic Technician Registered (DTR), or
Certified Dietary Manager (CDM) prior to serving. The R.D., Nutritionist, DTR, or CDM
verifies menus by computerized nutritional analysis of at least one meal per week of
the menu cycle and adherence to menu requirements in the DES/DAAS “Nutrition,
Food Service and Wellness Manual” as may be amended.
11. Plan menus to reduce the frequent use of foods high in sugar, salt, and saturated fats.
12. Plan menus considering the availability of foods during seasons when they are most
plentiful.
37
20.3.2 Meal Preparation and Service
1. Provide a nutritious home delivered meal at least once a day, five days a week except
in rural areas where such frequency is not feasible, and has been approved by the
Area Agency on Aging, Region One.
2. Prepare or arrange for preparation and service of meals, and adhere to menus as
written.
3. Ensure that menu substitutions made because of a temporary inability to obtain certain
foods are selected from the same food group.
1. Substitution menus for holidays and special occasions must meet menu requirements.
2. All substitutions must be documented on the menu for site review.
4. Purchase and receive food contributions only from an approved source, such as
grocery stores and food vendors. The following shall not be used: cans which are
bulging, dented, leaking, rusty, or which spurt liquid when opened; food with an off-
odor; food which shows signs of mold; food prepared or canned in the home.
5. Package and deliver meals in a safe and sanitary manner.
6. Deliver meals directly to an individual, i.e., not left on doorsteps, mailboxes, or
porches.
7. Obtain the client’s or authorized signature and date for each meal delivered and
maintain the signatures in a central file.
8. Document in the individual’s service log the number of meals received each month.
9. Maintain record/log of the number of meals delivered each month to each participant.
10. Assess general mental and physical health status (“wellness check”) of the individual
at the time of meal delivery.
11. Refer all individuals for appropriate action who present additional medical or social
problems during the course of service delivery.
12. Prepare, then chill/freeze meals for distribution when appropriate for the preservation
of the nutritional quality of the meal and/or the efficiency of food delivery.
Documentation of the participant’s ability to store and reheat the meal to appropriate
temperatures must be maintained in the file.
13. Provide a frozen or shelf stable meal when it will be used as meals for non-delivery
days, additional meals for the same day, or where it is cost-effective to service
expansion to provide frozen meals beyond the limitations of a hot meal delivery circuit,
provided that:
1. The meal, its menu, and its preparation meet all the required standards;
2. It is verified and documented in the case record that the individual has the
facilities to properly store and prepare frozen meal(s); and
3. If an individual is to receive more than one frozen meal per delivery, that the
reason for receiving delivery of multiple meals is documented in the individual’s
case record.
14. Prepare and serve meals for persons needing diabetic or sodium-restricted diets, etc.
(when appropriate and feasible) with written approval from the individual’s physician,
e.g., diet order. All special diet menus must be approved by a RD, Nutritionist, DTR,
or CDM.
15. Review food service expenditures in order to further cost effective management.
16. Develop and implement an emergency plan to be used when the meal cannot be
prepared or is unsuitable for consumption. This includes a one-day emergency menu
with supplies on hand for implementation.
17. Give participants an opportunity to contribute towards the cost of the meal in
accordance with the DAAS Policy and Procedure Manual, Chapter 3190, as may be
amended.
18. Ensure that every participant is given the Nutrition Screening Survey initially, and
annually thereafter. Those at high nutritional risk with a score of six or greater are
referred to a healthcare professional for nutrition-related counseling.
20.3.3 Staff Training
1. Provide food safety and sanitation training for all new food service personnel within the
first month of employment to include at a minimum: personal hygiene, proper attire for
food service workers, cleaning and sanitizing, correct use of gloves, proper hot and
38
cold food temperatures, proper use of a thermometer, food delivery procedures and
correct disposal or storage of leftovers.
2. Ensure that all food handlers complete a course of food safety and sanitation within
one month of employment. The site manager or the appropriate management staff
shall have additional training such as ServSafe or other course approved by their
County Health Department.
3. Provide training on a periodic basis to persons preparing and delivering meals.
Training is encouraged in the areas of food safety and sanitation, storage, food
preparation and service, cost effective management, purchasing, menu planning,
equipment operation and safety;
4. Train meal delivery staff in communication and observation skills necessary to
evaluate an individual’s general mental and physical status at the time of meal
delivery. This evaluation is considered a wellness check.
5. Document staff training in personnel files.
20.4 Licensure/Certification Requirements – The Contractor shall:
20.4.1 Ensure that Registered Dietitians and Registered Dietetic Technicians meet the requirements
for membership in the American Dietetic Association, have successfully completed the
examination for registration, and meet continuing education requirements.
20.4.2 Ensure that Nutritionists hold a Bachelor’s or Master’s degree in food and nutrition.
20.4.3 Ensure that Certified Dietary Managers meet the requirements for certification as identified by
the Certifying Board of Dietary Managers of the Dietary Managers Association and who meet
continuing education requirements and are in good standing with the Board.
20.4.4 Prepare and deliver meals in compliance with all local, county, state, and federal regulations
and requirements for food service.
20.5 Performance Measure
20.5.1 Number of home delivered meals served annually
20.5.2 Percentage of Home Delivered Meal clients who experienced socialization at least 2 times per
week.
20.6 Reporting Unit
20.6.1 One unit of service equals one meal.
39
AREA AGENCY ON AGING, REGION ONE, INCORPORATED
SERVICE SPECIFICATIONS
HOME DELIVERED MEALS
1. ADDITIONAL SERVICE DESCRIPTION
a. To provide for delivery of home delivered meals.
b. Home delivered meals are a case managed service such that services under this contract are specific
to Area Agency designated case management client referrals. Client eligibility shall be the sole
discretion of the Area Agency and designated case management units.
c. Within the parameters of the contract, Contractor may only serve clients authorized by Area
Agency designated case management agencies.
d. Assessments of clients need for meals and the specific need for more than one meal per day shall
be the sole responsibility of case management.
e. Annual Nutrition Screening Survey shall be the sole responsibility of case management.
2. ADDITIONAL DEFINITION OF UNIT OF SERVICE
a. One unit of service equals one meal delivered to an authorized client.
3. SERVICE TASKS
The provider is responsible for transporting meals to clients based on the service authorization. The
provider shall comply with the following requirements when delivering meals:
a. Delivery of Home Delivered Meals
i. The vehicle in which meal delivery is provided must have valid license plates and, at a
minimum, the State of Arizona required level of liability insurance.
ii. Individuals conducting the delivery must be a minimum of eighteen (18) years of age and
shall carry agency identification badge. Persons under the age of eighteen may assist with
the delivery process if accompanied and supervised by a designated person over the age of
eighteen.
iii. Three (3) references from persons other than family members must be contacted for newly
hired home delivered meal employees for delivery of home delivered meals.
Documentation of contacts must be kept on file.
iv. Training shall be provided for persons delivering home delivered meals. Training shall be
conducted prior to the person performing the delivery on their own. Training must
minimally include:
1. social needs of the homebound client;
2. development of observation of skills necessary to detect changes in client
functioning or status;
3. appropriate methods of interacting with homebound clients;
4. appropriate responses to client medical emergencies;
5. methods of reporting changes in client's physical/mental status;
6. methods for reporting barriers to service delivery; and
7. contribution procedures to ensure availability for clients to contribute and ensure
confidentiality for all contributors.
v. A review must be conducted at least monthly by staff and/or delivery coordinator of the
client status, routes (including time and distance) delivery specifications, compliance, and
changes, and other home delivered meal services.
b. Client Signatures
i. All clients must sign for the receipt of each home delivered meal.
ii. If a client is unable to sign his/her name, then an adult in the home must sign the client's
name and initial the signature. In the absence of a person in the home, the delivery person
may execute a signature and initial the signature.
40
c. Meal Delivery
i. Meals will be provided based on case management specific authorization as to day(s) per
week and number of meals per day.
ii. A route sheet shall be used daily to document all clients’ names, addresses, diet of meal,
drink delivered, signature, and any special delivery instructions.
iii. Delivery of the meal must be made directly to the client.
iv. Delivery person will provide assistance, if needed, in opening the meal containers.
v. Delivery staff will allow for time in the home to inquire as to the well being and health of
the client.
1. The delivery staff must report all changes in client’s mental or physical status to
the senior center staff.
2. The senior center staff must document the report in the client’s file and the client’s
case manager and/or the emergency contact person for follow up.
vi. If the client is not home to receive the meal, the meal must be returned to the senior center.
d. Non-Provision of Service Non-provision of service occurs when a client does not receive a
scheduled home delivered meal. All instances of non-provision of service must be fully
documented in the client’s case file and appropriate action taken with the client, case manager,
and/or emergency contact.
4. REPORTING REQUIREMENTS
Contractor shall comply with all Area Agency policies, procedures and directives regarding billing and as
follows:
a. All home delivered meal operations must be conducted using the Pharos™ software.
b. Reports and documentation must be reported on a calendar month only as follows:
i. HDM Master List
ii. Program Report
iii. Financial Statement
41
FACILITY LOCATION
Contract services shall be delivered only at facilities and locations specified below and will be available during the
hours and days of operation indicated:
AGENCY INFORMATION
Facility / Site Name
Address, City, State, Zip
Telephone #
Fax #
(list corporate office, then
any site office)
CONTRACTED
SERVICES
BY
SITE
S
U
B
C
O
N
T
R
A
C
T
DAYS OF WEEK
&
HOURS OF
OPERATION
BY
SITE
GEOGRAPHIC
SERVICE
AREA
(service area by PSA,
City(s) & communities
or north, south, east,
west boundaries)
ADULT DAY HEALTH
CARE
TRANSPORTATION
or
HOME DELIVERED
MEALS DELIVERY
AREA
(specific north, south,
east, west boundaries)
Town of Fountain Hills
Senior Activity Center
13001 N. La Montana
Drive
Fountain Hills, AZ 85268
480-816-5226
480-816-0280 (fax)
Home Delivered
Meals
N
O
T
A
P
P
L
I
C
A
B
L
E
Office hours:
Monday – Friday
9:00am – 4:00pm
Meals Delivered:
7 days a week
365 days a year
Town of Fountain
Hills
Town of Fountain Hills
HOLIDAY OBSERVANCES
A √ indicates the HOLIDAYS that the facility(s) listed above will not be open:
√ New Years Day √ Labor Day Other Holidays:
√ Martin Luther King Day Columbus Day √
√ President’s Day √ Veteran’s Day √
Good Friday √ Thanksgiving Day(s): #
√ Memorial Day √ Christmas Day(s): # √
√ Independence Day √ HOLIDAYS marked are administrative only; services are provided 24/7
PSA – PLANNING & SERVICE AREA
PSA 1 - Northwest: Glendale, Peoria, El Mirage, Youngtown, Sun City, Sun City West, Surprise, Wittmann, Wickenburg,
New River, and all other communities in that area of Maricopa County
PSA 2 - Southwest: Tolleson, Avondale, Buckeye, Gila Bend, and all other communities in that area of Maricopa County
PSA 3 - Northeast: Carefree, Cave Creek, Scottsdale, Fountain Hills, and all other communities in that area of Maricopa
County excluding reservations
PSA 4 - Southeast: Tempe, Guadalupe, Mesa, Chandler, Gilbert, Queen Creek, Higley, Sun Lakes, and all other
communities in that area of Maricopa County.
PSA 5 - Phoenix, Laveen, and all other communities in that area of Maricopa County
42
CERTIFICATE REGARDING LOBBYING
Certification for Contracts, Grants, Loans, and Cooperative Agreements
The undersigned certifies, to the best of his or her knowledge and belief, that:
(1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any
person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an
officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of
any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any
cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal
contract, grant, loan, or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for
influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or
employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant,
loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, ''Disclosure of
Lobbying Activities,'' in accordance with its instructions.
(3) The undersigned shall require that the language of this certification be included in the award documents for
all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative
agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material
representation of fact upon which reliance was placed when this transaction was made or entered into. Submission
of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31,
U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than
$10,000 and not more than $100,000 for each such failure.
Statement for Loan Guarantees and Loan Insurance
The undersigned states, to the best of his or her knowledge and belief, that:
If any funds have been paid or will be paid to any person for influencing or attempting to influence an officer or
employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a
Member of Congress in connection with this commitment providing for the United States to insure or guarantee a
loan, the undersigned shall complete and submit Standard Form-LLL, ''Disclosure of Lobbying Activities,'' in
accordance with its instructions. Submission of this statement is a prerequisite for making or entering into this
transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required statement shall
be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
TOWN OF FOUNTAIN HILLS
Signature and Date
Julie Ghetti
Interim Town Manager
43
CERTIFICATE OF DEBARMENT
This certification is required by the regulations implementing Executive Order 12549-Debarment and Suspension,
29 CFR Part 98, Section 98.510, Participant's responsibilities. The regulations were published as Part VII of the
May 28, 1988 Federal Register (pages 19160 - 19211).
1. By signing and submitting this document, the prospective recipient of federal assistance funds is
providing the certification as set out below.
2. The certification in this clause is a material representation of fact upon which reliance was placed when
this transaction was entered into. If it is later determined that the prospective recipient of federal
assistance funds knowingly rendered an erroneous certification, in addition to other remedies available to
the federal government, the Department of Labor (DOL) may pursue available remedies, including
suspension and/or debarment.
3. The prospective recipient of federal assistance funds shall provide immediate written notice to the Area
Agency President/CEO if at any time the prospective recipient of federal assistance funds learns that its
certification was erroneous when submitted or has become erroneous by reason of changed
circumstances.
4. The terms "covered transaction," "debarred," "suspended," "ineligible," "lower tier covered transaction,"
"participant," "person," "primary covered transaction," "principal," " proposal," and "voluntarily
excluded," as used in this clause, have the meanings set out in the Definitions and Coverage sections of
rules implementing Executive Order 12549.
5. The prospective recipient of federal assistance funds agrees by signing this certification, that should the
proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered
transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from
participation in this covered transaction, unless authorized by the Department of Labor (DOL).
6. The prospective recipient of federal assistance funds further agrees by signing this certification that it will
include the clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary
Exclusion – Lower Tier Covered Transactions," without modification, in all lower tier covered
transactions and in all solicitations for lower tier covered transactions.
7. A participant in a covered transaction may rely upon a certification of prospective participant in a lower
tier covered transaction that it is not debarred, suspended, ineligible, or voluntarily excluded from the
covered transaction, unless it knows that the certification is erroneous. A participant may decide the
method and frequency by which it determines the eligibility of its principals. Each participant may but is
not required to check the List of Parties Excluded from Procurement or Non-Procurement Programs.
8. Nothing contained in the foregoing shall be construed to require establishment of a system of records in
order to render in good faith the certification required by this clause. The knowledge and information of a
participant is not required to exceed that which is normally possessed by a prudent person in the ordinary
course of business dealings.
9. Except for transactions authorized under paragraph 5 of these instructions, if a participant in a covered
transaction knowingly enters into a lower tier covered transaction with a person who is suspended,
debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other
remedies available to the federal government, the DOL may pursue available remedies including
suspension and/or debarment.
TOWN OF FOUNTAIN HILLS
Signature and Date
Julie Ghetti
Interim Town Manager
44
COMMUNICATION PAGE
(not an integral page of the Contract)
TOWN OF FOUNTAIN HILLS
#2012-18-FTN
12/28/11 EMAILED TO: kfonville@fh.az.gov
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1660920.1
RESOLUTION NO. 2012-01
A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF
FOUNTAIN HILLS, ARIZONA, APPROVING THE DEVELOPMENT
AGREEMENT WITH AVENUE OF THE FOUNTAIN, LLC.
BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF
FOUNTAIN HILLS as follows:
SECTION 1. The Development Agreement between the Town of Fountain Hills and
Avenue of the Fountain, LLC (the “Agreement”) is hereby approved in substantially the form
attached hereto as Exhibit A and incorporated herein by reference.
SECTION 2. The Mayor, the Town Manager, the Town Clerk and the Town Attorney
are hereby authorized and directed to cause the execution of the Agreement and to take all steps
necessary to carry out the purpose and intent of this Resolution.
PASSED AND ADOPTED BY the Mayor and Council of the Town of Fountain Hills,
February 2, 2012.
FOR THE TOWN OF FOUNTAIN HILLS: ATTESTED TO:
Jay T. Schlum, Mayor Bevelyn J. Bender, Town Clerk
REVIEWED BY: APPROVED AS TO FORM:
Julie Ghetti, Interim Town Manager Andrew J. McGuire, Town Attorney
1660920.1
EXHIBIT A
TO
RESOLUTION NO. 2012-01
[Development Agreement]
See following pages.
1637630.5
WHEN RECORDED RETURN TO:
Town of Fountain Hills
Attn: Town Clerk
16705 East Avenue of the Fountains
Fountain Hills, Arizona 85268
===============================================================
DEVELOPMENT AGREEMENT
FOR
THE AVENUE
A
TOWN CENTER PROJECT
===============================================================
TOWN OF FOUNTAIN HILLS, ARIZONA,
an Arizona municipal corporation
AND
AVENUE OF THE FOUNTAIN, LLC,
an Arizona limited liability company
===============================================================
, 2012
===============================================================
1637628.5
DEVELOPMENT AGREEMENT BETWEEN THE
TOWN OF FOUNTAIN HILLS AND AVENUE OF THE FOUNTAIN, LLC
THIS DEVELOPMENT AGREEMENT (this “Agreement”) dated ____________, 2012,
(the “Effective Date”) is made and entered into by and between the TOWN OF FOUNTAIN
HILLS, an Arizona municipal corporation (the “Town”) and AVENUE OF THE FOUNTAIN,
LLC, an Arizona limited liability company (the “Developer”). The Town and Developer are
sometimes referred to herein collectively as the “Parties,” or individually as a “Party.”
RECITALS
A. Developer has a real estate purchase contract for the acquisition of approximately
4.76 acres of that certain real property located at the southwest corner of Avenue of the
Fountains and Verde River Drive, Fountain Hills, Arizona, as more particularly described on
Exhibit A attached hereto and incorporated herein by this reference (the “Property”).
B. It is the Developer’s intention to develop the Property as an entertainment, retail
and office project, including but not limited to retail shopping areas, restaurants, offices, theaters
and related uses (the “Project”).
C. The Town desires that the Property be developed as an integral part of the Town
Center area of Fountain Hills. The Town has determined that encouraging the development of
the Property pursuant to this Agreement will result in significant planning, economic and other
public purpose benefits to the Town and its residents by, among other things (i) the construction
of public improvements, (ii) the development of the Property in a manner consistent with the
Town’s General Plan, (iii) an increase in sales tax revenues to the Town arising from or relating
to the development of the Property and (iv) the creation of new jobs and otherwise enhancing the
economic welfare of the residents of the Town.
D. The Parties understand and acknowledge that the ultimate development of the
Project on the Property is a project of such magnitude that the Developer requires assurances
from the Town that the Developer will have the ability to complete the development of the
Project as contemplated by this Agreement. The Parties further understand and acknowledge
that the Town seeks assurances from the Developer that the Developer will complete the
acquisition of the Property and thereafter develop the Project on the Property in accordance with
the Land Use Plan attached hereto as Exhibit B and incorporated herein by reference (the “Land
Use Plan”) and in accordance with a Concept Plan prepared by the Developer consistent with the
Land Use Plan and submitted for approval by the Town’s Planning and Zoning Commission (the
“Commission”) and the Mayor and Town Council of the Town of Fountain Hills (the “Town
Council”), as hereinafter provided in this Agreement.
E. The Parties understand and acknowledge that this Agreement is a “Development
Agreement” within the meaning of and entered into pursuant to the terms of ARIZ. REV. STAT. §
9-500.05, in order to facilitate the proper development of the Property by providing for, among
other things (i) conditions, terms, restrictions and requirements for the Property by the Town, (ii)
1637628.5 2
the intensity and height of such uses and (iii) other matters related to the development of the
Property. The terms of this Agreement shall constitute covenants running with the Property as
more fully described in this Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing recitals, which are incorporated
herein by reference, the promises contained in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which the Parties hereby acknowledge, the Parties
hereto agree as follows:
1. Incorporation of Recitals. The foregoing recitals are true and correct and
incorporated by this reference as if fully set forth herein.
2. Term and Effective Date. The Developer, its successors and assigns, shall have
the right to implement development on the Property in accordance with this Agreement for a
period of four (4) years from the date this Agreement is approved by the Town Council, at which
time this Agreement shall automatically terminate as to the Property without the necessity of any
notice, agreement or recording by or between the Parties (the “Term”); provided, however, that
provisions of this Agreement that specifically survive the termination of this Agreement shall
remain in full force and effect, subject only to the termination provisions herein specifically
related thereto; provided further, however, that if Developer fails to completely fulfill any
portion of its obligations as set forth in Section 6 below by the deadline for performance
associated with each such obligation, this Agreement, and the Parking Easement (as defined
below) shall immediately terminate upon expiration of the applicable cure period without further
act by the Town Council. This Agreement shall become effective only upon approval by the
Town Council.
3. Land Use Plan. Developer has previously submitted to the Town the Land Use
Plan attached hereto as Exhibit B. Developer acknowledges and agrees that such Land Use Plan
is not a “Concept Plan” as defined in the Town of Fountain Hills Zoning Ordinance (the “Zoning
Ordinance”), and not withstanding the Town Council’s Approval of this Agreement, Developer
must also receive approval by the Commission and Town Council of a Concept Plan prepared in
accordance with the Concept Plan requirements set forth in the Zoning Ordinance. The Concept
Plan shall set forth the development standards, mix of uses and phasing for the Project that are
consistent with the Town Center Commercial District (“TCCD”) zoning category provisions in
the Zoning Ordinance, the Town’s General Plan designations for the Property and the Downtown
Area Specific Plan, hereinafter referred to as the “Concept Plan”), which Concept Plan may be
approved or denied by the Commission in its sole discretion. Developer further agrees that, due
to the nature of this Project, the Concept Plan shall be subject to additional review by the Town
Council, which may approve or deny the Concept Plan in its sole discretion. The Developer
agrees and understands that its efforts to prepare the documents necessary for the Concept Plan
application were undertaken at its own risk, and that the Developer may not rely upon this
Agreement as any guarantee that the Commission or the Town Council will approve the Concept
Plan. Further, once approved by the Town Council, the Concept Plan shall not be amended or
modified without Town Council approval.
1637628.5 3
4. Use of Town Property.
a. Rights-of-way. The Town, in the sole discretion of the Town Council, and
subject to existing state and local laws and ordinances, has determined that it is necessary to
further economic development to make available for use by the Developer certain Town property
in conjunction with the Parking Easement (defined below). Further, subject to the Developer’s
provision of necessary insurances and indemnifications acceptable to the Town, the Town
acknowledges and agrees to allow the Developer to use, at no cost, portions of the Town’s rights-
of-way adjacent to the Project for construction, operation and maintenance of sanitary sewer
interceptor facilities associated with Project, as such facilities are shown on the approved
Concept Plan. Town also agrees to provide, in favor of the Developer at no cost, all construction
easements or approvals necessary to construct the necessary improvements to or within Town
rights-of-way.
b. Parking. The Town hereby agrees to allow Developer to use certain
portions of the Town’s open public parking located at the Civic Center on a no-fee, non-
exclusive, shared-use basis to provide additional parking for the theater multiplex planned as part
of the Project, subject to and in accordance with the terms and conditions of the reciprocal
parking easement agreement attached hereto as Exhibit C and incorporated herein by reference
(the “Parking Easement”). The Parking Easement shall be executed and recorded by the Parties
concurrently with the execution and recordation of this Agreement. Except as specifically set
forth in Section 2 above, the Parking Easement shall survive the expiration of the Term of this
Agreement, and shall thereafter be terminable only in accordance with the terms of the Parking
Easement. The Parties acknowledge and agree that, pursuant to Section 18.11 of the Zoning
Ordinance, the Walker Parking–ULI based, Shared Parking Model, developed by Walker
Parking (the Town parking consultant), will be utilized to determine the shared parking demand
for the Project and that the first three peer review fees associated with the use of this alternate
Shared Parking Model are not applicable to the Project.
5. Conditions to Town’s Obligations. The Town shall not be required to take any
action contemplated by this Agreement until Developer has fully performed its obligations as set
forth in subsections 6(a) - (j) below.
6. Developer’s Obligations. Developer shall perform all of its duties as set forth in
this Section and according to the “Schedule of Performance” attached hereto as Exhibit D and
incorporated herein by reference. Developer’s failure to timely perform its obligations as set
forth below shall constitute a breach of this Agreement and shall cause the immediate
termination thereof as set forth in Section 2 above.
a. Zoning Adherence and Performance. Developer agrees to develop the
Project in accordance with the TCCD zoning district and the Concept Plan, as reviewed and
approved or denied by the Commission in its sole discretion and then approved or denied by the
Town Council in its sole legislative discretion. Developer has previously submitted a completed
Concept Plan application to the Town staff in sufficient time to ensure that the Town staff can
submit it to the Commission for its review and approval or denial prior to the Town Council’s
1637628.5 4
consideration of this Agreement. Developer agrees to accept and comply with any conditions
associated with the final approval of the Concept Plan approval by the Town Council.
b. Acquisition of the Property. Developer agrees to complete the acquisition
of the Property (close escrow and confirm ownership) for development of the Project not later
than sixty (60) days after the Effective Date.
c. Construction Documents. Developer shall prepare and submit to the
Town for the Town’s review and approval, the construction documents for the Project, as shown
on Exhibit B, in accordance with the Schedule of Performance and the Town Codes and
Ordinances.
d. Construction on Property. Developer shall submit complete Construction
Documents for the phases of the Project, receive building permits for vertical construction of the
phases of the Project according to such construction documents and commence construction on
the Project in accordance with the Schedule of Performance. For the purposes of this subsection,
(1) “vertical construction” shall mean construction of exterior walls of restaurant, retail,
entertainment and office buildings on the Property and (2) “commencement of construction”
shall mean the mobilization of sufficient construction resources to the Property to complete the
phases of the Project according to the Schedule of Performance and the Town’s Codes and
ordinances. Developer further agrees and acknowledges that it shall not be permitted to begin
physical construction on the Property until, and if, the Town Council approves the Concept Plan.
e. Traffic Study. Developer shall submit for review to the Town a traffic
impact analysis prepared by a qualified professional identifying (1) the Project impacts on traffic
circulation in the area surrounding the Project, including but not limited to the area bounded by
El Lago Boulevard, Saguaro Boulevard, Avenue of the Fountains and La Montana Drive and (2)
the Developer’s proposed mitigation for the impacts identified (the “Traffic Study”). The Traffic
Study shall be submitted to the Town and the mitigation agreed to between the Parties by not
later than the first vertical construction related to the Project and the required mitigation shall be
completed prior to the first certificate of occupancy for the Project.
f. Building Permits. Developer agrees and understands that no permits for
the construction of the Project will be issued prior to Town Council approval of the Concept
Plan. Developer shall secure all grading, building and construction permits, which may be
required by the Town and any other governmental agency prior to starting any site grading or
construction activities on the Property. However, the Parties further agree that subject to
appropriate assurances in such form and amount as required by the Town Engineer and Town
Attorney to ensure the restoration of the Project site, the Town agrees that it will issue certain
grading permits for the Project prior to the Developer’s completion of the construction
documents for, and the Town Engineer’s approval of, the building and construction documents
for the Project; provided, however, no such grading permits shall be issued by the Town to the
Developer until (1) the necessary assurances are received and approved by the Town Attorney
and Town Engineer and (2) the Developer has either (A) taken ownership of the Property or
(B) obtained and delivered to the Town written authorization from the property owner granting
Developer the necessary authority to enter the Property and conduct grading operations.
1637628.5 5
g. Developer Public Improvements. Developer shall design, construct and
dedicate to the Town all public improvements associated with the Project including, but not
limited to, the parking lot containing __ spaces located on the Town’s real property located
adjacent to the Property as shown on Exhibit B attached hereto, in a manner consistent with the
Developer’s parking areas adjacent thereto (the “Developer’s Public Improvements”)
h. Phased Development. The Town acknowledges that Developer plans to
develop the Property in two phases generally set forth in Exhibit B, as more particularly
described in the Concept Plan as approved by the Town Council. The Town will review and
approve the public infrastructure needs of each phase (the “Infrastructure Improvements”) as part
of its approval of the construction documents of each phase. The Developer shall construct or
cause to be constructed and installed any and all portions of the Infrastructure Improvements.
The Town Engineer may require that the Developer construct portions of the Infrastructure
Improvements not directly related to the phase being constructed by the Developer if, in the
Town Engineer’s sole discretion, he determines that the construction sequence requested by the
Developer will be detrimental to the Town or to the public.
i. Infrastructure Assurance. Prior to the commencement of construction of
any Infrastructure Improvements, the Developer shall provide appropriate assurances in such
form and amount as required by the Town Attorney and Town Engineer to ensure that the
installation of Infrastructure Improvements within the Property or other Infrastructure
Improvements directly related to such building permit or permits will be completed (the
“Infrastructure Assurance”).
j. Dedication and Acceptance. Upon completion by Developer of any
Infrastructure Improvements, the Developer shall promptly (1) notify the Town in writing of the
presumptive completion of such Infrastructure Improvements and (2) dedicate to the Town, at no
cost to the Town, such Infrastructure Improvements free and clear of all liens and encumbrances
and in accordance with Town standards applicable to such dedication and acceptance. So long as
such Infrastructure Improvements are constructed in accordance with Town standards, as verified
by the inspection of the completed Infrastructure Improvements by the Town Engineer, all punch
list items have been completed and the Infrastructure Improvements are free of any liens and
encumbrances, the Town shall accept the Infrastructure Improvements. The Town shall notify
the Developer, in writing, of the Town’s acceptance of the Infrastructure Improvements.
Acceptance of any Infrastructure Improvement is expressly conditioned upon Developer
providing a warranty for such Infrastructure Improvement consistent with Town standards and as
provided in Subsection 6(k) below. Subject to the limitation set forth below, after acceptance of
any Infrastructure Improvements, the Town thereafter shall maintain, repair and operate such
Infrastructure Improvements at its own cost, which obligation shall survive any termination of
this Agreement. Notwithstanding the Town’s maintenance obligations set forth above, the
Developer shall be solely responsible for the cost of operating (including, but not limited to costs
for water, electricity and dust control) and maintaining the parking lot constructed on Town
property as set forth in Subsection 6(f) above, such maintenance to be conducted at the same
intervals and standards as the Developer’s parking areas, subject to prior notice to, and approval
by, the Town Engineer. Developer, at no cost to Town, shall dedicate, convey or obtain, as
1637628.5 6
applicable all rights-of-way, rights of entry, easements and/or other use rights, wherever located,
as useful or necessary for the operation and maintenance of the Infrastructure Improvements as
required by the Town.
k. Warranty. Developer or its assignee shall give to the Town a one-year
warranty for all Infrastructure Improvements or other such warranty as required by the Town
Engineer, which warranty shall begin on the date that the Town accepts the Infrastructure
Improvements as provided in this Section. Any material deficiencies in material or workmanship
identified by Town staff during the one-year warranty period shall be brought to the attention of
the Developer or its assignee that provided the warranty, which shall promptly remedy or cause
to be remedied such deficiencies to the reasonable satisfaction of the Town Engineer.
Continuing material deficiencies in a particular portion of the Infrastructure Improvements shall
be sufficient grounds for the Town to require (1) an extension of the warranty for an additional
one-year period and (2) the proper repair of or the removal and reinstallation of, that portion of
the Infrastructure Improvements that is subject to such continuing deficiencies. Regardless of
whether the applicable warranty period has expired, the Developer agrees to repair any damage
to the Infrastructure Improvements caused by Developer’s construction activities on the
Property. Nothing contained herein shall prevent the Town or Developer from seeking recourse
against any other third party for damage to the Infrastructure Improvements caused by such third
party.
8. Fee Limitations.
a. Generally. The Parties agree that the Developer shall pay review, permit
and development fees associated with the Project up to seven hundred twenty-five thousand
dollars ($725,000) (the “Fee Cap”); the responsibility for any commercial review, permit and
development fees in excess of seven hundred twenty-five thousand dollars ($725,000) shall be
borne by the Town; provided, however, that the seven hundred twenty-five thousand dollar cap
on such fees shall only extend for a period of five (5) years from the Effective Date (such date is
referred to herein as the “Cap Termination Date”) whether or not Developer has reached seven
hundred twenty-five thousand dollars ($725,000) in aggregate fees for the Project. After the Cap
Termination Date, the Developer shall pay the then-applicable review, permit and development
fees, without discount or cap.
b. Excluded Fees and Costs. Developer expressly agrees and understands
that the Fee Cap does not include (1) any fees paid to third parties (i.e., Chaparral City Water
Company or Fountain Hills Sanitary District) or (2) any fees applicable to the Town’s public art
requirements as set forth in Section 19.05 of the Zoning Ordinance.
c. Calculation of Fee Cap. In calculating the Fee Cap, all development
impact fees due to the Town for the Project shall be counted first, followed by fees related to
review by professionals other than the Town Staff (a/k/a outside plan review or inspection fees),
followed by application fees.
d. Method of Reimbursement/Operational Requirement. Fees shall be paid
by the Developer in the full amount when due. Fees paid in excess of the Fee Cap shall be
1637628.5 7
rebated to the Developer on the date that is five (5) years from the date of certificate of
occupancy for the movie theater portion of the Project (the “Fee Cap Rebate Date”) provided that
the theater (1) opens to the public for use as a first-run movie theater not later than sixty (60)
days following issuance of a certificate of occupancy for the theater (the “Opening Date”) and
(2) operates continuously from the Opening Date until the Fee Cap Rebate Date.
9. Default. If either Party fails to perform any obligation, and such Party fails to
cure its nonperformance within thirty (30) days after notice of nonperformance is given by the
non-defaulting Party, such Party will be in default (the “Cure Period”). In the event of such
default, the non-defaulting Party may terminate this Agreement and will have all remedies that
are available to it at law or in equity including, without limitation, the remedy of specific
performance. If the nature of the defaulting Party’s nonperformance is such that it cannot
reasonably be cured within thirty (30) days, then the defaulting Party will have such additional
periods of time as part of the Cure Period as may be reasonably necessary under the
circumstances, provided the defaulting Party immediately commences to cure its
nonperformance and thereafter diligently continues to completion the cure of its
nonperformance. In no event shall any such Cure Period exceed sixty (60) days.
10. General.
a. 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: (1) delivered to the Party at the addresses set forth below; (2) deposited in the U.S.
Mail, registered or certified, return receipt requested, to the address set forth below; or (3) given
to a recognized and reputable overnight delivery service, to the address set forth below:
If to Town: Town of Fountain Hills
16705 East Avenue of the Fountains.
Fountain Hills, Arizona 85268
Attn: Town Manager
With a copy to: GUST ROSENFELD, P.L.C.
One East Washington, Suite 1600
Phoenix, Arizona 85004-2553
Attn: Andrew J. McGuire, Esq.
If to Developer: Avenue of the Fountain, LLC
15933 E. Trevino Drive
Fountain Hills, Arizona 85268
Attn: George Kasnoff
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: (1) when delivered to the Party; (2) three business days after being placed in the U.S.
Mail, properly addressed, with sufficient postage; or (3) the following business day after being
given to a recognized overnight delivery service, with the person giving the notice paying all
1637628.5 8
required charges and instructing the delivery service to deliver on the following business day. If
a copy of a notice is also given to a Party’s counsel or other recipient, the provisions above
governing the date on which a notice is deemed to have been received by a Party shall mean and
refer to the date on which the Party, and not its counsel or other recipient to which a copy of the
notice may be sent, is deemed to have received the notice.
b. Amendment. No amendment or waiver of any provision in this
Agreement will be binding (1) on the Town unless and until it has been approved by the Town
Council and has become effective or (2) on Developer unless and until it has been executed by
an authorized representative.
c. Headings; References. The headings herein are inserted only as a matter
of convenience and for reference and in no way define, limit or describe the meaning of any
provision or the scope or intent of this Agreement nor in any way affect the terms and provisions
hereof.
d. Time of the Essence. Time is of the essence with regard to performance
under the terms and provisions of this Agreement, and any amendment, modification or revision
thereof, with respect to the actions and obligations of each person bound by the terms hereof.
e. Attorney’s Fees. If either Party commences an action against the other to
interpret or enforce any of the terms of this Agreement or because of the breach by the other
Party of any of the terms hereof, the losing Party shall pay to the prevailing Party reasonable
attorney’s fees, costs and expenses, including expert witness fees, incurred in connection with
the prosecution or defense of such action. For the purpose of this Agreement, the terms
“attorney’s fees, costs and expenses” shall mean the fees and expenses of counsel to the Parties
hereto, which may include printing, duplicating and other expenses, air freight charges, and fees
billed for law clerks, paralegals, librarians and others not admitted to the bar but performing
services under the supervision of an attorney. The term “attorneys’ fees, costs and expenses”
shall also include, without limitation, all such fees and expenses incurred with respect to appeals,
arbitrations and bankruptcy proceedings, and whether or not any action or proceeding is brought
with respect to the matter for which said fees and expenses were incurred.
f. Recordation. This Agreement shall be recorded in its entirety in the
Maricopa County Recorder’s Office not later than ten (10) days after it is fully executed by the
Developer and the Town.
g. Choice of Law, Venue and Attorneys’ Fees. The laws of the State of
Arizona shall govern any dispute, controversy, claim or cause of action arising out of or related
to this Agreement. The venue for any such dispute shall be Maricopa County, Arizona, and each
Party waives the right to object to venue in Maricopa County for any reason. Neither Party shall
be entitled to recover any of its attorneys’ fees or other costs from the other Party incurred in any
such dispute, controversy, claim, or cause of action, but each Party shall bear its own attorneys’
fees and costs, whether the same is resolved through arbitration, litigation in a court, or
otherwise.
1637628.5 9
h. Good Standing; Authority. Each Party represents and warrants that it is
duly formed and validly existing under the laws of the State of Arizona with respect to
Developer, or a municipal corporation within Arizona with respect to the Town and that the
individuals executing this Agreement on behalf of their respective Party are authorized and
empowered to bind the Party on whose behalf each such individual is signing.
i. Assignment. The provisions of this Agreement are binding upon and shall
inure to the benefit of the Parties, and all of their successors in interest and assigns.
j. Third Parties. No term or provision of this Agreement is intended to, or
shall be for the benefit of any person or entity not a Party hereto, and no such other person or
entity shall have any right or cause of action hereunder.
k. No Partnership. None of the terms or provisions of this Agreement shall
be deemed to create a partnership between or among the Parties hereto in their respective
businesses or otherwise, nor shall it cause them to be considered joint ventures or members of
any joint enterprise. Each Party hereto shall be considered a separate owner, and no Party hereto
shall have the right to act as an agent for another Party hereto, unless expressly authorized to do
so herein or by separate written instrument signed by the Party to be charged.
l. Waiver. No delay in exercising any right or remedy shall constitute a
waiver thereof, and no waiver of any breach shall be construed as a waiver of any preceding or
succeeding breach of the same or any other covenant, or condition of this Agreement. No waiver
shall be effective unless it is in writing and is signed by the Party asserted to have granted such
waiver.
m. Further Documentation. The Parties agree in good faith to execute such
further or additional instruments and documents and to take such further acts as may be
necessary or appropriate to fully carry out the intent and purpose of this Agreement.
n. Fair Interpretation. The Parties have been represented by counsel in the
negotiation and drafting of this Agreement and this Agreement shall be construed according to
the fair meaning of its language. The rule of construction that ambiguities shall be resolved
against the Party who drafted a provision shall not be employed in interpreting this Agreement.
o. Counterparts. This Agreement may be executed in counterparts, each of
which shall be an original but all of which shall constitute one and the same instrument.
p. Computation of Time. In computing any period of time under this
Agreement, the date of the act or event from which the designated period of time begins to run
shall not be included. The last date of the period so completed shall be included unless it is a
Saturday, Sunday or legal holiday, in which event the period shall run until the end of the next
day which is not a Saturday, Sunday or legal holiday. The time for performance of any
obligation or taking any action under this Agreement shall be deemed to expire at 5:00 p.m.
(local time, Phoenix, Arizona) on the last day of the applicable time period provided herein.
1637628.5 10
q. Conflict of Interest. Pursuant to ARIZ. REV. STAT. § 38-503 and § 38-511,
no member, official or employee of the Town shall have any personal interest, direct or indirect,
in this Agreement, nor shall any such member, official or employee participate in any decision
relating to this Agreement which affects his or her personal interest or the interest of any
corporation, partnership or association in which he or she is, directly or indirectly, interested.
This Agreement is subject to cancellation pursuant to the terms of ARIZ. REV. STAT. § 38-511.
r. Severability. Every provision of this Agreement is and will be construed
to be a separate and independent covenant. If any provision in this Agreement or the application
of the same is, to any extent, found to be invalid or unenforceable, the remainder of this
Agreement or the application of that provision to circumstances other than those to which it is
invalid or unenforceable will not be affected by that invalidity or unenforceability. Each
provision in this Agreement will be valid and will be enforced to the extent permitted by law and
the Parties will negotiate in good faith for such amendments of this Agreement as may be
necessary to achieve its intent, notwithstanding such invalidity or unenforceability.
s. Covenant of Good Faith. In exercising their rights and in performing their
obligations pursuant to this Agreement, the Parties will cooperate with one another in good faith
to ensure the intent of this Agreement can be attained.
t. Estoppel Certificate. Upon Developer’s written request, the Town will
execute, acknowledge and deliver to Developer and all parties identified by Developer, including
without limitation assignees, transferees, tenants, purchasers, investors, lenders, and mortgagees,
a written statement certifying (1) that this Agreement is unmodified and in full force and effect
(or, if there have been modifications , that this Agreement is in full force and effect, as modified,
and stating modifications) and (2) whether there are any existing breaches or defaults by
Developer then known to the Town under this Agreement, and if so, specifying the same. The
Town will deliver the statement to Developer or such requesting party within fifteen (15) days
after request. The Town acknowledges that any such assignee, transferee, tenant, purchaser,
investor, lender, or mortgagee may rely upon such statement as true and correct.
[SIGNATURES ON FOLLOWING PAGES]
1637628.5 11
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date first set forth above.
“Town”
TOWN OF FOUNTAIN HILLS
an Arizona municipal corporation
By:
Jay T. Schlum, Mayor
ATTEST:
Bevelyn J. Bender, Town Clerk
(ACKNOWLEDGMENT)
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
This instrument was acknowledged before me on , 2012,
by Jay T. Schlum, the Mayor of the TOWN OF FOUNTAIN HILLS, an Arizona municipal
corporation, on behalf of the Town of Fountain Hills.
Notary Public in the State of Arizona
(affix notary seal here)
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
1637628.5 12
“Developer”
AVENUE OF THE FOUNTAIN, LLC
an Arizona limited liability company
By:
George Kasnoff, Manager
(ACKNOWLEDGMENT)
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
This instrument was acknowledged before me on __________________, 2012, by
George Kasnoff, Manager of AVENUE OF THE FOUNTAIN, LLC, an Arizona limited liability
company, on behalf of such limited liability company.
Notary Public in the State of Arizona.
(affix notary seal here)
1637630.5
EXHIBIT A
TO
DEVELOPMENT AGREEMENT FOR THE AVENUE
A TOWN CENTER PROJECT
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
AVENUE OF THE FOUNTAIN, LLC
[Legal Description of the Property]
Parcel No 1:
Approx. Acreage: 4.76 Acres
Lot 1, A FINAL REPLAT OF BLOCK 2, PLAT NO. 208, FOUNTAIN HILLS,
ARIZONA, according to Book 615 of Maps, page 48, records of Maricopa County,
Arizona:
Except all minerals as reserved unto the United States of America in Patent of said land
recorded February 28, 1956 in Docket 1839, page 426, records of Maricopa County,
Arizona; and
Except all oil, gases and other hydrocarbon substances, coal, stone, metals, minerals,
fossils and fertilizers of every name and description, together with all uranium, thorium,
or other material which or may be determined to be peculiarly essential to the production
of fissionable materials, whether or not of commercial value; and
Except all underground water in, under or flowing through said land, and water rights
appurtenant thereto.
1637630.5
EXHIBIT B
TO
DEVELOPMENT AGREEMENT FOR THE AVENUE
A TOWN CENTER PROJECT
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
AVENUE OF THE FOUNTAIN, LLC
[Land Use Plan]
See following pages.
1637630.5
PROJECT NAME:Town Project
DATE:Type Existing New Totals
Street 44 0 44
Restaurant Retail Residential Office Total SQ. FT.Surface 400 399 799
Building Q (12 Screen, 2226 seat, Movie Theater) 52,962 52,962 Structure 0 0 0
Mezzanine 7,400 7,400 Totals 444 399 843
Building M (1 Story Retail)2,200 2,178 4,378
Building N (1 Story Retail)5,200 5,200
SUB-TOTALS 60,362 2,200 7,378 - - 69,940 25
19
Building B (1 Story Retail; 2 Story Office)- 14,708 29,416 44,124
Building C (1 Story Retail; 2 Story Office)1,998 11,932 - 27,211 41,141 357
43
SUB-TOTALS - 1,998 26,640 - 56,627 85,265 20
TOTALS 60,362 4,198 34,018 - 56,627 155,205 169
- 210
Town Hall (Existing 1 and 2 story Civic Use)Com. Mtg. 843
31,115 86,016
(includes Courts and Sherriff's Office)
Walker Walker-ULI
ULI Walker - ULI Demand
Parking Unadjusted Month Adj.Pk. Hr. Adj Non Captive Drive Ratio Late Dec.
Ratios Demand Late Dec.2:00 PM Daytime Daytime 2:00 PM
Retail 34,018 Sq.Ft.2.90 99 80%100%90%100%71
Employee 34,018 Sq.Ft.0.70 24 90%100%100%98%21
Fine/Casual Dining 4,198 Sq.Ft.12.46 52 95%65%90%100%29
Employee 4,198 Sq.Ft.2.22 9 100%90%100%98%8
Nightclubs - Sq.Ft.15.22 0 95%0%100%100%0
Employee - Sq.Ft.1.22 0 100%10%100%98%0
Cineplex 2,226 Seats 0.19 423 100%75%100%100%317
Employee 2,226 Seats 0.01 22 100%60%100%98%13
Community Center 31,115 Sq.Ft.5.50 171 10%100%100%100%17
Employee 31,115 Sq.Ft.0.51 16 80%100%100%98%12
Hotel - Leisure - Rooms 0.9 0 100%70%100%90%0
Restaurant/Lounge - Sq.Ft.10.00 0 95%33%40%100%0
Employee - Rooms 0.25 0 100%100%100%98%0
Residential Reserved - Units 2.00 0 100%100%100%100%0
Office 100K to 500K sq.ft.111,528 Sq.Ft.0.25 28 80%100%100%100%22
Employee 111,528 Sq.Ft.3.13 349 80%100%100%98%274
Subtotal Customer/Guest Spaces 773 457
Subtotal Employee Spaces 420 328
Subtotal Resident Spaces 0 Walker-ULI 0
Total Parking Spaces 1193 34%785
843
58
Walker Walker-ULI
ULI Walker - ULI Demand
Parking Unadjusted Month Adj.Pk. Hr. Adj Non Captive Drive Ratio Late Dec.
Ratios Demand Late Dec.8:00 PM Daytime Daytime 8:00 PM
Retail 34,018 Sq.Ft.3.2 109 80%65%90%100%51
Employee 34,018 Sq.Ft.0.8 27 90%75%100%98%18
Fine/Casual Dining 4,198 Sq.Ft.13.86 58 95%100%90%100%50
Employee 4,198 Sq.Ft.2.46 10 100%100%100%98%10
Nightclubs - Sq.Ft.17.56 0 95%75%100%100%0
Employee - Sq.Ft.1.56 0 100%100%100%98%0
Cineplex 2,226 Seats 0.26 579 100%100%100%100%579
Employee 2,226 Seats 0.01 22 100%100%100%98%22
Community Center 31,115 Sq.Ft.5.50 171 10%30%100%100%5
Employee 31,115 Sq.Ft.0.51 16 80%20%100%98%2
Hotel - Leisure - Sq.Ft.1.00 0 100%90%100%90%0
Restaurant/Lounge - Sq.Ft.10.00 0 95%70%20%100%0
Employee - Sq.Ft.0.18 0 100%55%100%98%0
Residential Reserved - Units 2.00 0 100%100%100%100%0
Office 100K to 500K sq.ft.111,528 Sq.Ft.0.03 3 80%0%100%100%0
Employee 111,528 Sq.Ft.0.32 36 80%0%100%98%0
Subtotal Customer/Guest Spaces 920 685
Subtotal Employee Spaces 111 52
Subtotal Resident Spaces 0 Walker-ULI 0
Total Parking Spaces 1032 29%737
843
106
Shared Parking Inventory
Street Parking
Town Hall - Ave of the Fountains
Project - Ave of the Fountains
FOUNTAIN HILLS STANDARD SHARED PARKING MODEL - WALKER - ULI
THE AVENUE
1/11/2012
BUILDING AREA SUMMARY
Excess (Shortage) Parking Provided
WEEKEND
New Project - On-Site (24 restricted use)
54,901
Total Shared Parking
Parking Spaces Provided
Office
WEEKDAY
Percentage Reduction
Accessable Parking:418 spaces X 2% = 8 spaces required; 9 provided
Walker - Standard Parking Model
THE AVENUE - Projected Shared Use Parking Needs
EXHIBIT B - PAGE 2 - LAND USE PLAN
Excess (Shortage) Parking Provided
Land Use
Percentage Reduction
Parking Spaces Provided
Existing Town Hall (42 restricted use)
New Town Hall Property
New Town's Project Property
Phase 1b Retail/Office Complex
Dwelling Units
Land Use
Surface Parking
Existing Sherriff's Office (43 restricted use)
Phase 1a Theater Complex Theaters
SHARED PARKING PROPOSED
1637630.5
EXHIBIT C
TO
DEVELOPMENT AGREEMENT FOR THE AVENUE
A TOWN CENTER PROJECT
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
AVENUE OF THE FOUNTAIN, LLC
[Reciprocal Parking Easement Agreement]
See following pages.
1637628.5
WHEN RECORDED RETURN TO:
Town of Fountain Hills
Attn: Town Clerk
16705 East Avenue of the Fountains
Fountain Hills, Arizona 85268
===============================================================
RECIPROCAL PARKING AGREEMENT
FOR
THE AVENUE
A
TOWN CENTER PROJECT
===============================================================
TOWN OF FOUNTAIN HILLS, ARIZONA,
an Arizona municipal corporation
AND
AVENUE OF THE FOUNTAIN, LLC,
an Arizona limited liability company
===============================================================
, 2012
===============================================================
1637628.5
RECIPROCAL PARKING EASEMENT AGREEMENT
THIS RECIPROCAL PARKING EASEMENT AGREEMENT (this “Agreement”) is
entered into , 2012, by and between AVENUE OF THE FOUNTAIN, LLC. an
Arizona limited liability company (“Developer”) and the TOWN OF FOUNTAIN HILLS, an
Arizona municipal corporation (the “Town”). The Town and Developer are sometimes referred
to herein collectively as the “Parties,” or individually as a “Party.”
RECITALS
A. Developer is under contract to purchase approximately 4.76 acres of that certain
real property located at the southwest corner of the intersection of Avenue of the Fountains and
Verde River Drive in Fountain Hills, Arizona, as more particularly described in Exhibit 1
attached hereto and incorporated herein by reference (the “Developer Parcels”). Developer
intends to construct an entertainment, retail and office development project (the “Project”),
including the construction of a multiplex movie theater complex (the “Theater Complex”) and a
retail and office complex (the “Retail Complex”), on the Developer Parcels in substantially the
form as set forth on the Land Use Plan attached hereto and incorporated herein by reference as
Exhibit 2 (the “Land Use Plan”).
B. Town is the owner of that certain real property located at the southeast corner of
Avenue of the Fountains and La Montana Drive in Fountain Hills, Arizona, more particularly
described and depicted in Exhibit 3 attached hereto and incorporated herein by reference (the
“Town Parcels”). A portion of the Town Parcels is currently utilized for surface parking.
C. The Developer Parcels and the Town Parcels are contiguous to one another, and
are hereinafter sometimes collectively referred to as the “Parcels” or individually as a “Parcel.”
D. Developer desires to grant to Town and its successors and assigns a nonexclusive
easement for ingress, egress, parking and pedestrian access on, over and across the area of land
within the Developer Parcels shown on Exhibit 4, attached hereto and incorporated herein by
reference, which at all times shall contain at least 183 unrestricted parking spaces therein (the
“Developer Parking Easement Area”). The Developer Parking Easement Area contains a total of
212 parking spaces; however 29 of these spaces are restricted use spaces.
E. Town desires to grant to Developer and its successors and assigns a nonexclusive
easement for ingress, egress, parking and pedestrian access on, over and across the area of land
within the Town Parcels shown on Exhibit 5, attached hereto and incorporated herein by
reference, which shall at all times contain at least 504 unrestricted public parking spaces therein
(the “Town Parking Easement Area”). The Town Parking Easement Area contains a total of 589
parking spaces; however 85 of these spaces are restricted use spaces. The Town agrees to grant
to Developer a temporary construction easement over, on and across that portion of the Town
Parking Easement Area that the Town Public Works Director deems, in his sole discretion, to be
necessary for the purpose of constructing the Developer Improvements (as defined below). Prior
to utilizing the Town Parking Easement Area, Developer shall, at its sole cost and expense,
design and construct paved parking facilities on the currently unpaved portion of the Town
1637628.5 2
Parking Easement Area and the currently unpaved portions of the Developer Parking Easement
Area (i) in accordance with Town codes, ordinances and regulations and (ii) consistent with the
quality of the parking facilities existing on the Town Civic Center. The aforementioned parking
facilities are collectively hereinafter referred to as the “Developer Improvements.”
F. The Developer Parking Easement Area and the Town Parking Easement Area are
hereinafter sometimes individually referred to as an “Easement Area” and collectively as the
“Easement Areas.” Each party acknowledges that the Easement Areas may be relocated
pursuant to Section 3 of this Agreement.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual covenants contained herein,
the parties agree as follows.
1. Covenants. Developer and Town hereby declare and agree that the Developer
Parcels and the Town Parcels are, or will be, upon closing of the Developer’s purchase of the
Developer Parcels, owned, held, conveyed, transferred, divided, sold, leased, rented,
encumbered, developed, improved, occupied and used subject to the easements established in
this Agreement, each and all of which are imposed upon and against the Parcels as mutual
beneficial and equitable servitudes in favor of the mutual use and benefit of the Parcels,
Developer, Town, their successors and assigns and all subsequent owners and lessees of the
Parcels, and any portions thereof, and their respective heirs, successors, representatives and
assigns, and are hereby expressly declared to be binding upon the Parcels, and any portions
thereof, and shall run with the land until terminated as set forth in Section 4 below and each and
every part thereof, inure to the benefit of and be a burden upon the Parcels, and any portions
thereof, and shall bind the respective heirs, successors and assigns of the Parcels, or any portions
thereof.
2. Reciprocal Easements. Each Party (“Granting Party”) hereto expressly grants to
the other (the “Benefited Party”) and to its successors and assigns, for the benefit of the
Benefited Party’s Parcel, a non-exclusive and perpetual right and easement for ingress, egress,
parking and pedestrian access on, over and across the Easement Area on the Granting Party’s
Parcel (each referred to herein as an “Easement”), subject to termination as set forth in Section 4
below. Notwithstanding anything in this Agreement to the contrary, Developer hereby agrees
that the Town shall have the right to temporary exclusive use of that portion of the Town Parking
Easement Area located between the Town Hall and the Town Community Center for certain
Town events (i.e. paper shredding event) and private events in the area of Town Hall (i.e. The
Great Fair) to ensure that the Town may carry out its governmental functions. Reciprocally and
notwithstanding anything in this Agreement to the contrary, Town hereby agrees that the
Developer shall have the right to temporary exclusive use and control of the Developer Parking
Easement Area (212 spaces) during the same certain Town events (i.e. paper shredding event)
and private events in the area of Town Hall (i.e. The Great Fair) to ensure adequate non-event
customer parking for the Theater Complex; provided, however, that in no event shall such
reserved parking be utilized for paid parking areas related to such nearby uses.
1637628.5 3
3. Temporary Relocation of Easements. The Town may relocate the Town Parking
Easement Area and Developer may relocate the Developer Parking Easement Area only as set
forth, and subject to the conditions of, this Section 3, but in no event shall Developer be
permitted to relocate the Developer Parking Easement Area at any time while the Theater
Complex is in operation as a movie theater. In the event that either Granting Party desires or
finds it necessary from time to time to voluntary or involuntarily temporarily relocate its
respective Easement Area, such relocated Easement Area (a) must not be located more than six
hundred (600) feet from the boundary of the Benefited Party’s Parcel, (b) must provide an
amount of parking greater than or equal to the existing Easement Area that is being relocated and
(c) must not be in a configuration or location that will materially interfere with the Benefited
Party’s use of the respective Easement Area. The Granting Party must provide at least sixty (60)
days prior, written notice of such relocation. If such relocation is reasonably anticipated to
materially interfere with the Benefited Party’s use of the Easement Area for its intended purpose,
the Benefited Party will have the right to require the Granting Party to provide, at its sole cost
and expense, a reasonably acceptable alternative facility for the Benefited Party’s interim use,
prior to the commencement and completion of any such relocation. The failure of the Benefited
Party to require such alternate facility within such sixty (60) day period shall be deemed the
Benefited Party’s approval of the relocation of the Easement Area.
4. Effective Date; Termination of the Agreement.
a. Effective Date. Notwithstanding any other provisions of this Agreement
to the contrary, the Easements granted pursuant to this Agreement shall become effective only
upon (1) Developer’s (or its assignee’s) close of escrow and confirmation of ownership of the
Developer Parcels by no later than sixty (60) days after the date first set forth above and (2) the
Developer’s full completion of all of its obligations set forth in that certain Development
Agreement for The Avenue, a Town Center Project, between the Town and Developer of equal
date herewith (the “Development Agreement”); provided, however, that the Easements shall
become effective to the extent necessary for Developer to utilize the Easements in conjunction
with the “Phase 1a” improvements so long as such Phase 1a improvements are completed as set
forth in, and according to, the Schedule of Performance on Exhibit D of the Development
Agreement.
b. Termination of this Agreement. This Agreement shall be null and void,
both Parties obligations hereunder shall be extinguished, the Easements granted herein shall be
extinguished and this Agreement shall immediately terminate without further action of either
Party if Developer fails to fulfill all of its obligations under the Development Agreement. The
automatic termination and extinguishment of the Easements shall occur as set forth herein even if
the Developer partially fulfills its obligations under the Development Agreement, including but
not limited to timely completion of the “Phase 1a” improvements described in Exhibit D of the
Development Agreement.
5. Termination of the Easements. In addition to termination of this Agreement as set
forth in Section 4 above and notwithstanding any other provisions of this Agreement to the
contrary, the Parties hereto agree that the Easements granted herein shall terminate, in whole or
in part as set forth below in this Section 5, at such time as the Theater Complex use ceases on the
1637628.5 4
Developer Parcels for a period in excess of one hundred eighty (180) consecutive days. The
Easements shall fully terminate and neither Party shall have any further rights or obligations
herein if Developer fails to do any of the following: (a) if the Theater Complex is damaged to an
extent that causes it to be closed to the general public for business, Developer shall (1) give
notice to the Town, not later than thirty (30) days from the last date the Theater Complex was
utilized as a movie theater (the “Theater Closing Date”), of its intent to repair the Theater
Complex and reopen it to the general public for business within two hundred seventy (270)
consecutive days from the Theater Closing Date and (2) complete all necessary repairs to the
Theater Complex and reopen it to the general public for business within two hundred seventy
(270) consecutive days from the Theater Closing Date; or (b) if the Theater Complex is closed to
the general public for business for any reason not involving damage to the Theater Complex,
Developer shall (1) give notice to the Town not later than sixty (60) consecutive days from the
Theater Closing Date of its intentions to retrofit the Theater Complex for use as retail
commercial space, (2) cause such alterations and improvements to the Theater Complex as
necessary for its reuse as retail commercial space within three hundred sixty-five (365)
consecutive days of the Theater Closing Date and (3) execute leases for the occupancy of not less
than 75% of the former Theater Complex space to “Retail Commercial Users” (such Retail
Commercial Users being defined herein as businesses which, by their nature, generate
transaction privilege taxes to the Town), with leases commencing not later than three hundred
sixty-five (365) consecutive days from the Theater Closing Date. In the event that Developer
meets all of the terms and conditions set forth in clauses (a) (1) – (2) above in this Section 5, this
Agreement shall remain in full force and effect. In the event that Developer meets all of the
terms and conditions set forth in clauses (b) (1) – (3) above in this Section 5, this Agreement
shall remain in full force and effect, except that the Town Easement Area shall be modified to
that area necessary to provide parking for the Retail Commercial Users in accordance with the
shared parking model approved in conjunction with the Concept Plan. If the Easements granted
herein terminate for any reason set forth in this Agreement, the Parties agree to execute all
necessary documents to remove the encumbrance of this Agreement from the title to the Parcels.
6. Operation and Maintenance. Each of the Parties hereto agrees to repair and
maintain the Easement Area located on its respective Parcel, including lighting, pavement,
striping and planters, in good condition and repair for the benefit of itself and the Benefited
Party. In no event will either Party or their respective tenants, guests or invitees be charged for
parking on an Easement Area on either Parcel. As further clarification and in no way limiting
the broad rights of access by the public to use of the Easement Areas granted in this Agreement,
the Developer Parking Easement Area shall at all times be available for free public parking;
provided, however, that Developer has the limited option to restrict parking as set forth in
Section 2 above. Notwithstanding the foregoing, Developer shall be solely responsible for the
cost of operating (including, but not limited to costs for water, electricity and dust control) and
maintaining the portion of the Town Parking Easement Area shown in Exhibit 6, attached hereto
and incorporated herein by reference, such maintenance to be conducted at the same intervals
and standards as the Developer’s parking areas, subject to prior notice to, and approval by, the
Town Engineer.
1637628.5 5
7. Taxes. Each of the Parties hereto agree to pay or cause to be paid, prior to
delinquency, directly to the appropriate taxing jurisdiction all real property taxes and
assessments which are levied against the Easement Area located within their respective Parcels.
8. Indemnification. Each of the Parties hereto, and their successors and assigns,
shall, to the extent permitted by law, indemnify, defend and hold the other Party harmless for,
from and against any and all liability, damage, expense, causes of action, suits, claims or
judgments including attorney’s fees and costs, arising from personal injury, death or property
damage and occurring on its own Parcel, unless caused by the willful misconduct or gross
negligence of the Party indemnified hereby. The provisions of this Section will survive for a
period of one (1) year following the termination of this Agreement.
9. Insurance. Each of the Parties shall, at its sole cost and expense, carry
commercial general liability insurance, naming the other Party as additional insured, covering
injury, death, disability or illness of any person, or damage to property, occurring in, on or about
its Parcel, with liability limits not less than Two Million Dollars ($2,000,000). The policies of
insurance provided herein shall be issued by insurance companies qualified to do business in the
State of Arizona and reasonably acceptable to the Parties. Each such insurance company shall
have a rating of at least A, Class IX in Best’s Key Rating Guide. Copies of the insurance
policies that each Party if required to carry hereunder, shall be delivered to the other Party within
five (5) days after the date on which this Agreement is recorded. The policies of insurance must
contain a provision that the company writing said policy will give to the other Party thirty (30)
days’ notice in writing of any modification, cancellation or lapse of effective date of any
reduction in the amount of insurance. Not more frequently than every five (5) years, if, in the
opinion of either Party the amount of the commercial general liability insurance coverage at that
time is not adequate, the Parties shall meet and discuss additional insurance as may be reasonable
for comparable facilities in the greater metropolitan Phoenix area.
10. Mutual Release/Waiver of Subrogation. Each of the Parties hereby release the
other from any and all liability or responsibility for any loss, injury or damage to their respective
Parcels, caused by any fire or other casualty or accident during the term of this Agreement.
Inasmuch as the above mutual waivers will preclude the assignment of any aforesaid claim by
way of subrogation (or otherwise) to an insurance company (or any other person), each Party
hereto hereby agrees if required by said policies to give to each insurance company which has
issued to it policies of insurance written notice of the terms of said mutual waivers, and to have
said insurance policies properly endorsed, if necessary, to prevent the invalidation of said
insurance coverage by reason of said waivers.
11. Eminent Domain.
a. Owner’s Right to Award. Nothing herein shall be construed to give any
Party hereto any interest in any award or payment made to the other Party hereto in connection
with any exercise of eminent domain or transfer in lieu thereof affecting said other Party’s Parcel
or giving the public or any government any rights in said Parcel. In the event of any exercise of
eminent domain or transfer in lieu thereof of any part of an Easement Area, the award
attributable to the land and improvements of such portion of the Easement Areas shall be payable
1637628.5 6
only to the owner of the Parcel on which that portion of the Easement Area is located, and no
claim thereon shall be made by the owners of any other portion of the Easement Areas.
b. Collateral Claims. Each of the Parties hereto may file collateral claims
with the condemning authority for their losses which are separate and apart from the value of the
land area and improvements taken from the other owner.
c. Restoration. The owner of any portion of the Easement Areas lost as a
result of condemnation shall promptly repair and restore the remaining portion of the Easement
Areas as nearly as practicable to the condition of the same immediately prior to such
condemnation or transfer, to the extent that the proceeds of such award are sufficient to pay the
cost of such restoration and repair and without contribution from any other owner.
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: (a) delivered to the Party at the addresses set forth below; (b) deposited in the U.S.
Mail, registered or certified, return receipt requested, to the address set forth below; or (c) given
to a recognized and reputable overnight delivery service, to the address set forth below:
If to Town: Town of Fountain Hills
16705 East Avenue of the Fountains.
Fountain Hills, Arizona 85268
Attn: Town Manager
With a copy to: GUST ROSENFELD, P.L.C.
One East Washington, Suite 1600
Phoenix, Arizona 85004-2553
Attn: Andrew J. McGuire, Esq.
If to Developer: Avenue of the Fountain, LLC
15933 E. Trevino Drive
Fountain Hills, Arizona 85268
Attn: George Kasnoff
or at such other address, and to the attention of such other person or officer, as any Party may
designate in writing by notice duly given pursuant to this Section. Notices shall be deemed
received: (a) when delivered to the Party; (b) three business days after being placed in the U.S.
Mail, properly addressed, with sufficient postage; or (c) the following business day after being
given to a recognized overnight delivery service, with the person giving the notice paying all
required charges and instructing the delivery service to deliver on the following business day. If
a copy of a notice is also given to a Party’s counsel or other recipient, the provisions above
governing the date on which a notice is deemed to have been received by a Party shall mean and
refer to the date on which the Party, and not its counsel or other recipient to which a copy of the
notice may be sent, is deemed to have received the notice.
1637628.5 7
13. Remedies.
a. Injunctive Relief. The Parties hereto acknowledge and agree that they
have bargained for specific performance of the covenants, conditions, rights, easements, and
rights-of-way contained in this Agreement, and all other provisions hereof, and that each Party
entitled to enforcement of the terms hereof shall be entitled to injunctive relief, including, but not
limited to, temporary restraining orders, preliminary injunctions and permanent injunctions, both
mandatory and prohibitory. Subject to the limitations contained in this Agreement, the Parties
hereto shall have all remedies, at law or in equity, in order to enforce the terms of this
Agreement.
b. Self-Help. In addition to all other remedies available at law or in equity,
upon the failure of a defaulting Party to cure a breach of this Agreement within thirty (30) days
following written notice thereof by the non-defaulting Party (unless, with respect to any such
breach the nature of which cannot reasonably be cured within such thirty (30) day period, the
defaulting Party commences such cure within such thirty (30) day period and thereafter
diligently prosecutes such cure to completion, which completion must occur not later than sixty
(60) days from the notice), the non-defaulting Party shall have the right to perform such
obligation contained in this Agreement on behalf of such defaulting Party and be reimbursed by
such defaulting Party upon demand for the reasonable costs thereof together with interest at the
prime rate charged from time to time by Bank of America (its successors or assigns), plus two
percent (2%) (not to exceed the maximum rate of interest allowed by law). Notwithstanding the
foregoing, in the event of (1) an emergency, (2) blockage or material impairment of the
Easement rights, and/or (3) the unauthorized parking of vehicles on a Parcel, the non-defaulting
Party may immediately cure the same and be reimbursed by the defaulting Party upon demand
for the reasonable cost thereof together with interest as above described.
14. Duration. Unless otherwise cancelled or terminated as set forth herein, all the
Easements granted in this Agreement shall continue in perpetuity.
15. Document Execution, Modification and Cancellation. This Agreement (including
exhibits) may be modified or cancelled only by the unanimous agreement by the owners of both
of the Parcels; provided, however that if the Developer Parcels are owned by more than one
person or entity, only the consent of such owners holding a real property interest in the
Developer Easement Area shall be required to sign on behalf of Developer.
16. Headings. The headings herein are inserted only as a matter of convenience and
for reference and in no way define, limit or describe the scope or intent of this document nor in
any way affect the terms and provisions hereof.
17. Time of the Essence. Time is of the essence with regard to performance under the
terms and provisions of this Agreement, and any amendment, modification or revision thereof,
with respect to the actions and obligations of each person bound by the terms hereof. In
accepting an interest in a Parcel, each owner, tenant, lessee, user, and mortgagee, and trust deed
beneficiary shall be deemed to take its interest knowingly and willingly subject to this time is of
the essence clause.
1637628.5 8
18. Recitals. The foregoing recitals are true and correct and incorporated by this
reference.
19. Severability. Invalidation of any of the provisions contained in this Agreement,
or of the application thereof to any person by judgment or court order shall in no way affect any
of the other provisions hereof or the application thereof to any person and the same shall remain
in full force and effect.
20. Attorney’s Fees. If either Party commences an action against the other to
interpret or enforce any of the terms of this Agreement or because of the breach by the other
Party of any of the terms hereof, the losing Party shall pay to the prevailing Party reasonable
attorney’s fees, costs and expenses, including expert witness fees, incurred in connection with
the prosecution or defense of such action. For the purpose of this Agreement, the terms
“attorney’s fees, costs and expenses” shall mean the fees and expenses of counsel to the Parties
hereto, which may include printing, duplicating and other expenses, air freight charges, and fees
billed for law clerks, paralegals, librarians and others not admitted to the bar but performing
services under the supervision of an attorney. The term “attorneys’ fees, costs and expenses”
shall also include, without limitation, all such fees and expenses incurred with respect to appeals,
arbitrations and bankruptcy proceedings, and whether or not any action or proceeding is brought
with respect to the matter for which said fees and expenses were incurred.
21. Negation of Partnership. None of the terms or provisions of this Agreement shall
be deemed to create a partnership between or among the Parties hereto in their respective
businesses or otherwise, nor shall it cause them to be considered joint ventures or members of
any joint enterprise. Each Party hereto shall be considered a separate owner, and no Party hereto
shall have the right to act as an agent for another Party hereto, unless expressly authorized to do
so herein or by separate written instrument signed by the Party to be charged.
22. Not a Public Dedication. Nothing herein contained shall be deemed to be a gift or
dedication of any Parcel or any portion of any Parcel to the general public, or for any public use
or purpose whatsoever. Except as herein specifically provided, no right, privileges or immunities
of any Party hereto shall inure to the benefit of any third party person, nor shall any third party
person be deemed to be a beneficiary or any of the provisions contained herein.
23. Enforcement. All of the provisions of this Agreement shall be enforceable as
equitable servitudes constituting covenants running with the land pursuant to applicable law. It
is expressly agreed that each covenant to do or refrain from doing some act on a parcel owned by
the covenantor (a) is for the benefit of the land of the covenantees, (b) runs with both the land
owned by the covenantor and the land owned by the covenantees, and (c) shall benefit and be
binding upon each successive owner during his ownership of any portion of the land affected
hereby and each person having any interest herein derived through any owner of the land
affected hereby.
24. Remedies Cumulative. This Agreement shall create privity of contract with an
estate with and among all grantees of all or any part of the Parcels that contains a real property
1637628.5 9
interest in either Developer Parking Easement Area or the Town Parking Easement Area, and
their respective heirs, executors, administrators, successors and assigns. In the event of a breach
or an attempted or threatened breach of any part of this Agreement by any Party hereto, the other
Party shall be entitled forthwith to full and adequate relief by injunction and all other available
legal and equitable remedies.
25. Estoppel Certificate. Upon Developer’s written request, the Town will execute,
acknowledge and deliver to Developer and all parties identified by Developer, including without
limitation assignees, transferees, tenants, purchasers, investors, lenders and mortgagees, a written
statement certifying (a) that this Agreement is unmodified and in full force and effect (or, if there
have been any modifications, that this Agreement is in full force and effect, as modified, and
stating the modifications) and (b) whether there are any then existing breaches or defaults by
Developer then known to the Town under this Agreement, and, if so, specifying the same. The
Town will deliver the statement to Developer or such requesting Party within fifteen (15) days
after request. The Town acknowledges that any such assignee, transferee, tenant, purchaser,
investor, lender or mortgagee may rely upon such statement as true and correct.
[SIGNATURES ON FOLLOWING PAGES]
1637628.5 10
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date first set forth above.
“Town”
TOWN OF FOUNTAIN HILLS
an Arizona municipal corporation
By:
Jay T. Schlum, Mayor
ATTEST:
Bevelyn J. Bender, Town Clerk
(ACKNOWLEDGMENT)
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
This instrument was acknowledged before me on , 2012,
by Jay T. Schlum, the Mayor of the TOWN OF FOUNTAIN HILLS, an Arizona municipal
corporation, on behalf of the Town of Fountain Hills.
Notary Public in the State of Arizona
(affix notary seal here)
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
1637628.5 11
“Developer”
AVENUE OF THE FOUNTAIN, LLC
an Arizona limited liability company
By:
George Kasnoff, Manager
(ACKNOWLEDGMENT)
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
This instrument was acknowledged before me on __________________, 2012, by
George Kasnoff, Manager of AVENUE OF THE FOUNTAIN, LLC, an Arizona limited liability
company, on behalf of such limited liability company.
Notary Public in the State of Arizona.
(affix notary seal here)
1637628.5
EXHIBIT 1
TO
RECIPROCAL PARKING AGREEMENT
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
AVENUE OF THE FOUNTAIN, LLC
[Legal Description of Developer Parcels]
Parcel No 1:
Approx. Acreage: 4.76 Acres
Lot 1, A FINAL REPLAT OF BLOCK 2, PLAT NO. 208, FOUNTAIN HILLS,
ARIZONA, according to Book 615 of Maps, page 48, records of Maricopa County,
Arizona:
Except all minerals as reserved unto the United States of America in Patent of said land
recorded February 28, 1956 in Docket 1839, page 426, records of Maricopa County,
Arizona; and
Except all oil, gases and other hydrocarbon substances, coal, stone, metals, minerals,
fossils and fertilizers of every name and description, together with all uranium, thorium,
or other material which or may be determined to be peculiarly essential to the production
of fissionable materials, whether or not of commercial value; and
Except all underground water in, under or flowing through said land, and water rights
appurtenant thereto.
1637628.5
EXHIBIT 2
TO
RECIPROCAL PARKING AGREEMENT
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
AVENUE OF THE FOUNTAIN, LLC
[Project Land Use Plan]
See following pages.
1637628.5
PROJECT NAME:Town Project
DATE:Type Existing New Totals
Street 44 0 44
Restaurant Retail Residential Office Total SQ. FT.Surface 400 399 799
Building Q (12 Screen, 2226 seat, Movie Theater) 52,962 52,962 Structure 0 0 0
Mezzanine 7,400 7,400 Totals 444 399 843
Building M (1 Story Retail)2,200 2,178 4,378
Building N (1 Story Retail)5,200 5,200
SUB-TOTALS 60,362 2,200 7,378 - - 69,940 25
19
Building B (1 Story Retail; 2 Story Office)- 14,708 29,416 44,124
Building C (1 Story Retail; 2 Story Office)1,998 11,932 - 27,211 41,141 357
43
SUB-TOTALS - 1,998 26,640 - 56,627 85,265 20
TOTALS 60,362 4,198 34,018 - 56,627 155,205 169
- 210
Town Hall (Existing 1 and 2 story Civic Use)Com. Mtg. 843
31,115 86,016
(includes Courts and Sherriff's Office)
Walker Walker-ULI
ULI Walker - ULI Demand
Parking Unadjusted Month Adj.Pk. Hr. Adj Non Captive Drive Ratio Late Dec.
Ratios Demand Late Dec.2:00 PM Daytime Daytime 2:00 PM
Retail 34,018 Sq.Ft.2.90 99 80%100%90%100%71
Employee 34,018 Sq.Ft.0.70 24 90%100%100%98%21
Fine/Casual Dining 4,198 Sq.Ft.12.46 52 95%65%90%100%29
Employee 4,198 Sq.Ft.2.22 9 100%90%100%98%8
Nightclubs - Sq.Ft.15.22 0 95%0%100%100%0
Employee - Sq.Ft.1.22 0 100%10%100%98%0
Cineplex 2,226 Seats 0.19 423 100%75%100%100%317
Employee 2,226 Seats 0.01 22 100%60%100%98%13
Community Center 31,115 Sq.Ft.5.50 171 10%100%100%100%17
Employee 31,115 Sq.Ft.0.51 16 80%100%100%98%12
Hotel - Leisure - Rooms 0.9 0 100%70%100%90%0
Restaurant/Lounge - Sq.Ft.10.00 0 95%33%40%100%0
Employee - Rooms 0.25 0 100%100%100%98%0
Residential Reserved - Units 2.00 0 100%100%100%100%0
Office 100K to 500K sq.ft.111,528 Sq.Ft.0.25 28 80%100%100%100%22
Employee 111,528 Sq.Ft.3.13 349 80%100%100%98%274
Subtotal Customer/Guest Spaces 773 457
Subtotal Employee Spaces 420 328
Subtotal Resident Spaces 0 Walker-ULI 0
Total Parking Spaces 1193 34%785
843
58
Walker Walker-ULI
ULI Walker - ULI Demand
Parking Unadjusted Month Adj.Pk. Hr. Adj Non Captive Drive Ratio Late Dec.
Ratios Demand Late Dec.8:00 PM Daytime Daytime 8:00 PM
Retail 34,018 Sq.Ft.3.2 109 80%65%90%100%51
Employee 34,018 Sq.Ft.0.8 27 90%75%100%98%18
Fine/Casual Dining 4,198 Sq.Ft.13.86 58 95%100%90%100%50
Employee 4,198 Sq.Ft.2.46 10 100%100%100%98%10
Nightclubs - Sq.Ft.17.56 0 95%75%100%100%0
Employee - Sq.Ft.1.56 0 100%100%100%98%0
Cineplex 2,226 Seats 0.26 579 100%100%100%100%579
Employee 2,226 Seats 0.01 22 100%100%100%98%22
Community Center 31,115 Sq.Ft.5.50 171 10%30%100%100%5
Employee 31,115 Sq.Ft.0.51 16 80%20%100%98%2
Hotel - Leisure - Sq.Ft.1.00 0 100%90%100%90%0
Restaurant/Lounge - Sq.Ft.10.00 0 95%70%20%100%0
Employee - Sq.Ft.0.18 0 100%55%100%98%0
Residential Reserved - Units 2.00 0 100%100%100%100%0
Office 100K to 500K sq.ft.111,528 Sq.Ft.0.03 3 80%0%100%100%0
Employee 111,528 Sq.Ft.0.32 36 80%0%100%98%0
Subtotal Customer/Guest Spaces 920 685
Subtotal Employee Spaces 111 52
Subtotal Resident Spaces 0 Walker-ULI 0
Total Parking Spaces 1032 29%737
843
106
Shared Parking Inventory
Street Parking
Town Hall - Ave of the Fountains
Project - Ave of the Fountains
FOUNTAIN HILLS STANDARD SHARED PARKING MODEL - WALKER - ULI
THE AVENUE
1/11/2012
BUILDING AREA SUMMARY
Excess (Shortage) Parking Provided
WEEKEND
New Project - On-Site (24 restricted use)
54,901
Total Shared Parking
Parking Spaces Provided
Office
WEEKDAY
Percentage Reduction
Accessable Parking:418 spaces X 2% = 8 spaces required; 9 provided
Walker - Standard Parking Model
THE AVENUE - Projected Shared Use Parking Needs
EXHIBIT 2 - PAGE 2 - LAND USE PLAN
Excess (Shortage) Parking Provided
Land Use
Percentage Reduction
Parking Spaces Provided
Existing Town Hall (42 restricted use)
New Town Hall Property
New Town's Project Property
Phase 1b Retail/Office Complex
Dwelling Units
Land Use
Surface Parking
Existing Sherriff's Office (43 restricted use)
Phase 1a Theater Complex Theaters
SHARED PARKING PROPOSED
1637628.5
EXHIBIT 3
TO
RECIPROCAL PARKING AGREEMENT
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
AVENUE OF THE FOUNTAIN, LLC
[Legal Descriptions and Depictions of Town Parcels]
See following pages.
1637628.5
EXHIBIT 4
TO
RECIPROCAL PARKING AGREEMENT
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
AVENUE OF THE FOUNTAIN, LLC
[Developer Parking Easement Area]
See following page.
1637628.5
1637628.5
EXHIBIT 5
TO
RECIPROCAL PARKING AGREEMENT
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
AVENUE OF THE FOUNTAIN, LLC
[Town Parking Easement Area]
See following page.
1637628.5
1637628.5
EXHIBIT 6
TO
RECIPROCAL PARKING AGREEMENT
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
AVENUE OF THE FOUNTAIN, LLC
[Area of Developer Responsibility for Maintenance of Town Easement]
See following page.
1637630.5
EXHIBIT D
TO
DEVELOPMENT AGREEMENT FOR THE AVENUE
A TOWN CENTER PROJECT
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
AVENUE OF THE FOUNTAIN, LLC
SCHEDULE OF PERFORMANCE
Deadline to Perform Task
From Effective Date of Agreement Task/Obligation
60 days Complete Acquisition of the Property
3 Months Developer to have submitted Construction
Documents for Phase 1a Improvements,
including Public Improvements.
6 Months Developer to have begun construction of Phase
1a Improvements.
18 Months Developer to have completed construction of
Phase 1a Improvements. Developer to have
completed Public Improvements for Phase 1a.
18 Months Developer to have submitted Construction
Documents for Phase 1b Improvements,
including Public Improvements.
24 Months Developer to have begun construction of Phase
1b Improvements.
48 Months Developer to have completed construction of
Phase 1b Improvements. Developer to have
completed Public Improvements for Phase 1b.
Re
d
a
c
t
1658450.3
EXHIBIT A
TO
EMPLOYMENT AGREEMENT
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
KENNETH W. BUCHANAN
[Escrow Agreement]
See following pages.
Re
d
a
c
t