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HomeMy WebLinkAbout120920P REVISED: 9/17/12 NOTICE OF THE REGULAR SESSION OF THE FOUNTAIN HILLS TOWN COUNCIL TIME: 6:30 P.M. WHEN: THURSDAY, SEPTEMBER 20, 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 ar e 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 Linda M. Kavanagh Councilmember Dennis Brown Councilmember Cassie Hansen Councilmember Ginny Dickey Vice Mayor Henry Leger Councilmember Tait D. Elkie Councilmember Cecil A. Yates Last printed 9/17/2012 4:42 PM Page 2 of 3  CALL TO ORDER AND PLEDGE OF ALLEGIANCE – Mayor Linda M. Kavanagh  INVOCATION – Bob Turner, from the Baha’I Faith Community  ROLL CALL – Mayor Linda M. Kavanagh  MAYOR’S REPORT i.) The Mayor will review recent events attended relating to economic development. ii.) The Mayor Linda M. Kavanagh will review information provided by the Arizona Department of Transportation (ADOT) regarding seeking public comment on its plan to comply with the Americans with Disabilities Act.  SCHEDULED PUBLIC APPEARANCES/PRESENTATIONS i.) None. 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 August 23 and September 6, 2012. 2. CONSIDERATION of approving RESOLUTION 2012-27, approving an intergovernmental agreement with the Fort McDowell Yavapai Nation relating to Proposition 202 funding, in the amount of $78,603.00. 3. CONSIDERATION of approving a CONTRACT with ACE Asphalt for repair and maintenance of Town owned parking lots in the amount of $56,007.13. 4. CONSIDERATION of AUTHORIZING payment to the League of Arizona Cities and Towns, in the amount of $14,545, for FY12-13 League dues. 5. CONSIDERATION of approving an ALLOCATION of $3,500 from the Downtown Development Fund for the “Oktoberfest” event. 6. CONSIDERATION of approving a REQUEST to offer memberships to Senior Services on a calendar year rather than a fiscal year and allowing for a grace period for new members that join. REGULAR AGENDA ITEMS 7. CONSIDERATION of APPOINTING four applicants to serve on the Planning and Zoning Commission from October 1, 2012 until September 30, 2014, and one applicant to serve from October 1, 2012, until September 30, 2013. Last printed 9/17/2012 4:42 PM Page 3 of 3 8. CONSIDERATION of the REAPPOINTMENT of Fountain Hills’ Presiding Judge Mitchell Eisenberg to a four-year term, beginning November 1, 2012, and ending October 31, 2016, and CONSIDERATION of an AMENDMENT to his employment agreement. 9. CONSIDERATION of the STRATEGIC PLAN GOALS AND OPERATIONAL PRIORITIES for FY12-13 with POSSIBLE DIRECTION to staff regarding IMPLEMENTATION. 10. COUNCIL DISCUSSION/DIRECTION to the Town Manager Ken Buchanan. 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. 11. SUMMARY of Council requests and REPORT ON RECENT ACTIVITIES by the Town Manager Ken Buchanan. 12. ADJOURNMENT DATED this 13th day of September, 2012.\ _____________________________________ Bevelyn J. Bender, Town Clerk REVISED: 9/17/12 NOTICE OF THE REGULAR SESSION OF THE FOUNTAIN HILLS TOWN COUNCIL TIME: 6:30 P.M. WHEN: THURSDAY, SEPTEMBER 20, 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 Linda M. Kavanagh Councilmember Dennis Brown Councilmember Cassie Hansen Councilmember Ginny Dickey Vice Mayor Henry Leger Councilmember Tait D. Elkie Councilmember Cecil A. Yates Last printed 9/17/2012 4:42 PM Page 2 of 3  CALL TO ORDER AND PLEDGE OF ALLEGIANCE – Mayor Linda M. Kavanagh  INVOCATION – Bob Turner, from the Baha’I Faith Community  ROLL CALL – Mayor Linda M. Kavanagh  MAYOR’S REPORT i.) The Mayor will review recent events attended relating to economic development. ii.) The Mayor Linda M. Kavanagh will review information provided by the Arizona Department of Transportation (ADOT) regarding seeking public comment on its plan to comply with the Americans with Disabilities Act.  SCHEDULED PUBLIC APPEARANCES/PRESENTATIONS i.) None. 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 August 23 and September 6, 2012. 2. CONSIDERATION of approving RESOLUTION 2012-27, approving an intergovernmental agreement with the Fort McDowell Yavapai Nation relating to Proposition 202 funding, in the amount of $78,603.00. 3. CONSIDERATION of approving a CONTRACT with ACE Asphalt for repair and maintenance of Town owned parking lots in the amount of $56,007.13. 4. CONSIDERATION of AUTHORIZING payment to the League of Arizona Cities and Towns, in the amount of $14,545, for FY12-13 League dues. 5. CONSIDERATION of approving an ALLOCATION of $3,500 from the Downtown Development Fund for the “Oktoberfest” event. 6. CONSIDERATION of approving a REQUEST to offer memberships to Senior Services on a calendar year rather than a fiscal year and allowing for a grace period for new members that join. REGULAR AGENDA ITEMS 7. CONSIDERATION of APPOINTING four applicants to serve on the Planning and Zoning Commission from October 1, 2012 until September 30, 2014, and one applicant to serve from October 1, 2012, until September 30, 2013. Last printed 9/17/2012 4:42 PM Page 3 of 3 8. CONSIDERATION of the REAPPOINTMENT of Fountain Hills’ Presiding Judge Mitchell Eisenberg to a four-year term, beginning November 1, 2012, and ending October 31, 2016, and CONSIDERATION of an AMENDMENT to his employment agreement. 9. CONSIDERATION of the STRATEGIC PLAN GOALS AND OPERATIONAL PRIORITIES for FY12-13 with POSSIBLE DIRECTION to staff regarding IMPLEMENTATION. 10. COUNCIL DISCUSSION/DIRECTION to the Town Manager Ken Buchanan. 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. 11. SUMMARY of Council requests and REPORT ON RECENT ACTIVITIES by the Town Manager Ken Buchanan. 12. ADJOURNMENT DATED this 13th day of September, 2012.\ _____________________________________ Bevelyn J. Bender, Town Clerk UI0/12 t ADOT Blog: AOOT makes ADA Transition Plan available for public comment I ' Share i o More Next Blog» ~~-~~ ~~---~ ~--····---------- TI.JESI».Y, SEPTEMBER4, 2012 ADOT makes ADA Transition Plan available for public comment We're looking for your feedback on a transition plan that's designed to outline in detail how ADOT plans to ensure safe access to all of its facilities for all indi\1duals. But before we send you off to our online sur.ey, let us giw you a few more details ... As part of lille II of the Americans with Disabilities Act of 1990, ADOT is conducting an ADA Corrp!ianc;o -Sunset Rlint Rest Area evaluation of its public right-of-way and dew loping a transition plan -a draft of that plan can be found HERE. It is intended to identify system needs and integrate them with ADOTs planning process, while ensuring that all of its facilities, ser\1ces, programs and acti\11ies are accessible to ewryone. This transition plan applies to all facilities and right-of-way owned and maintained by ADOT (Examples of facilities include office buildings, rest areas, scale sites, and maintenance buildings. Examples of right-of-way features include curb ramps, sidewalks, crosswalks, medians and accessible pedestrian signals). As part of the plan dewlopment process that began in January 2011, ADOT completed a comprehensiw statewide inwntory of public rights-of-way, including data collection of more than 22,000 features and 10,000 photos taken. "Ewry agency must document its intent to meet the Americans with Disabilities Act requirements. Oewloping a transition plan based on selklvaluation is the best way to do it," said ADOT Deputy State Engineer Dallas Hammil. "It's the right thing to do. We want to make sure ewryone has access to all of our buildings, facilities and programs. It's important that the public submit their comments because their input will be used for the 5nal plan: So, about that sun.ey we mentioned ... You can find it on our website, along with plenty of additionaiinformation. Comments may be submitted until Sept. 28 online or by writing ADOTs ADA Coordinator, Eddie Edison, at the Arizona Department of Transportation, 206 S. 17th Awnue, Phoenix, AZ 85007. We in\1te you to pro\1de your feedback! "ts!erl hy AngeLl Do We2es at 11:44 AM Recoi'TTT'end Htrs on Google Labeb ADA Corr()liance Transition Ran. AOOT. Survey 9 comments: Anonymous September7, 2012 4:54PM GRETA IDEAS! JUST HOPE I NEVER HAlle TO TAKE ADVANTAGE OF 11-tE WORK Reply tdotblog.blogspotcom/2012/09/adot-makes-ada-transition-planhtml Create Blog Sign In This is the official blog of the Arizona Department of Transportation. www .azdolgov/ facebook.com/AZDOT • Comment Policy SUBSCRIBE TO 0 Posts [.J Comments SEARCH THS BI..OG BI..OGARCHIVE .. 2012 (124) -. September(3) Learning more about transportation through ADOT Fa ... Work continues on 1-10/Loop 303 interchange proJeC ... ADOT makes ADA TransWon Plan available for publi ... IIllo August (17) IIllo July(13) IIllo June (17) IIllo May(15) IIllo April (15) IIllo March (16) IIllo February(15) IIllo January (13) IIllo 2011 (120) 1/3 1803179.1 3 10. Licenses; Materials. Contractor shall maintain in current status all federal, state and local licenses and permits required for the operation of the business conducted by the Contractor. The Town has no obligation to provide Contractor, its employees or subcontractors any business registrations or licenses required to perform the specific services set forth in this Agreement. The Town has no obligation to provide tools, equipment or material to Contractor. 11. Performance Warranty. Contractor warrants that the Services rendered will conform to the requirements of this Agreement and to the highest professional standards in the field. 12. Indemnification. To the fullest extent permitted by law, the Contractor shall indemnify, defend and hold harmless the Town and each council member, officer, employee or agent thereof (the Town and any such person being herein called an “Indemnified Party”), for, from and against any and all losses, claims, damages, liabilities, costs and expenses (including, but not limited to, reasonable attorneys’ fees, court costs and the costs of appellate proceedings) to which any such Indemnified Party may become subject, under any theory of liability whatsoever (“Claims”), insofar as such Claims (or actions in respect thereof) relate to, arise out of, or are caused by or based upon the negligent acts, intentional misconduct, errors, mistakes or omissions, in connection with the work or services of the Contractor, its officers, employees, agents, or any tier of subcontractor in the performance of this Agreement. The amount and type of insurance coverage requirements set forth below will in no way be construed as limiting the scope of the indemnity in this Section. 13. Insurance. 13.1 General. A. Insurer Qualifications. Without limiting any obligations or liabilities of Contractor, Contractor shall purchase and maintain, at its own expense, hereinafter stipulated minimum insurance with insurance companies authorized to do business in the State of Arizona pursuant to ARIZ. REV. STAT. § 20-206, as amended, with an AM Best, Inc. rating of A- or above with policies and forms satisfactory to the Town. Failure to maintain insurance as specified herein may result in termination of this Agreement at the Town’s option. B. No Representation of Coverage Adequacy. By requiring insurance herein, the Town does not represent that coverage and limits will be adequate to protect Contractor. The Town reserves the right to review any and all of the insurance policies and/or endorsements cited in this Agreement but has no obligation to do so. Failure to demand such evidence of full compliance with the insurance requirements set forth in this Agreement or failure to identify any insurance deficiency shall not relieve Contractor from, nor be construed or deemed a waiver of, its obligation to maintain the required insurance at all times during the performance of this Agreement. C. Additional Insured. All insurance coverage and self-insured retention or deductible portions, except Workers’ Compensation insurance and Professional Liability insurance, if applicable, shall name, to the fullest extent permitted by law for claims 1803179.1 4 arising out of the performance of this Agreement, the Town, its agents, representatives, officers, directors, officials and employees as Additional Insured as specified under the respective coverage sections of this Agreement. D. Coverage Term. All insurance required herein shall be maintained in full force and effect until all work or services required to be performed under the terms of this Agreement are satisfactorily performed, completed and formally accepted by the Town, unless specified otherwise in this Agreement. E. Primary Insurance. Contractor’s insurance shall be primary insurance with respect to performance of this Agreement and in the protection of the Town as an Additional Insured. F. Waiver. All policies, except for Professional Liability, including Workers’ Compensation insurance, shall contain a waiver of rights of recovery (subrogation) against the Town, its agents, representatives, officials, officers and employees for any claims arising out of the work or services of Contractor. Contractor shall arrange to have such subrogation waivers incorporated into each policy via formal written endorsement thereto. G. Policy Deductibles and/or Self-Insured Retentions. The policies set forth in these requirements may provide coverage that contains deductibles or self-insured retention amounts. Such deductibles or self-insured retention shall not be applicable with respect to the policy limits provided to the Town. Contractor shall be solely responsible for any such deductible or self-insured retention amount. H. Use of Subcontractors. If any work under this Agreement is subcontracted in any way, Contractor shall execute written agreements with its subcontractors containing the indemnification provisions set forth in this Section and insurance requirements set forth herein protecting the Town and Contractor. Contractor shall be responsible for executing any agreements with its subcontractors and obtaining certificates of insurance verifying the insurance requirements. I. Evidence of Insurance. Prior to commencing any work or services under this Agreement, Contractor will provide the Town with suitable evidence of insurance in the form of certificates of insurance and a copy of the declaration page(s) of the insurance policies as required by this Agreement, issued by Contractor’s insurance insurer(s) as evidence that policies are placed with acceptable insurers as specified herein and provide the required coverages, conditions and limits of coverage specified in this Agreement and that such coverage and provisions are in full force and effect. Confidential information such as the policy premium may be redacted from the declaration page(s) of each insurance policy, provided that such redactions do not alter any of the information required by this Agreement. The Town shall reasonably rely upon the certificates of insurance and declaration page(s) of the insurance policies as evidence of coverage but such acceptance and reliance shall not waive or alter in any way the insurance requirements or obligations of this Agreement. In the event any insurance policy required by this Agreement is written on a “claims made” basis, coverage shall extend for two years past completion of the Services and the Town’s acceptance of the Contractor’s work or services and as evidenced by annual certificates of insurance. If any of the policies required by 1803179.1 5 this Agreement expire during the life of this Agreement, it shall be Contractor’s responsibility to forward renewal certificates and declaration page(s) to the Town 30 days prior to the expiration date. All certificates of insurance and declarations required by this Agreement shall be identified by referencing Agreement Number C2013-113. A $25.00 administrative fee shall be assessed for all certificates or declarations received without a reference to Agreement Number C2013- 113. Additionally, certificates of insurance and declaration page(s) of the insurance policies submitted without referencing Agreement Number C2013-113 will be subject to rejection and may be returned or discarded. Certificates of insurance and declaration page(s) shall specifically include the following provisions: (1) The Town, its agents, representatives, officers, directors, officials and employees are Additional Insureds as follows: (a) Commercial General Liability - Under Insurance Services Office, Inc., (“ISO”) Form CG 20 10 03 97 or equivalent. (b) Auto Liability - Under ISO Form CA 20 48 or equivalent. (c) Excess Liability - Follow Form to underlying insurance. (2) Contractor’s insurance shall be primary insurance as respects performance of the Agreement. (3) All policies, except for Professional Liability, including Workers’ Compensation, waive rights of recovery (subrogation) against Town, its agents, representatives, officers, officials and employees for any claims arising out of work or services performed by Contractor under this Agreement. (4) A 30-day advance notice cancellation provision. If ACORD certificate of insurance form is used, the phrases in the cancellation provision “endeavor to” and “but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representatives” shall be deleted. Certificate forms other than ACORD form shall have similar restrictive language deleted. 13.2 Required Insurance Coverage. A. Commercial General Liability. Contractor shall maintain “occurrence” form Commercial General Liability insurance with an unimpaired limit of not less than $1,000,000 for each occurrence, $2,000,000 Products and Completed Operations Annual Aggregate and a $2,000,000 General Aggregate Limit. The policy shall cover liability arising from premises, operations, independent contractors, products-completed operations, personal injury and advertising injury. Coverage under the policy will be at least as broad as ISO policy form CG 00 010 93 or equivalent thereof, including but not limited to, separation of insured’s clause. To the fullest extent allowed by law, for claims arising out of the performance of this Agreement, the Town, its agents, representatives, officers, officials and employees shall be cited 1803179.1 6 as an Additional Insured under ISO, Commercial General Liability Additional Insured Endorsement form CG 20 10 03 97, or equivalent, which shall read “Who is an Insured (Section II) is amended to include as an insured the person or organization shown in the Schedule, but only with respect to liability arising out of “your work” for that insured by or for you.” If any Excess insurance is utilized to fulfill the requirements of this subsection, such Excess insurance shall be “follow form” equal or broader in coverage scope than underlying insurance. B. Vehicle Liability. Contractor shall maintain Business Automobile Liability insurance with a limit of $1,000,000 each occurrence on Contractor’s owned, hired and non-owned vehicles assigned to or used in the performance of the Contractor’s work or services under this Agreement. Coverage will be at least as broad as ISO coverage code “1” “any auto” policy form CA 00 01 12 93 or equivalent thereof. To the fullest extent allowed by law, for claims arising out of the performance of this Agreement, the Town, its agents, representatives, officers, directors, officials and employees shall be cited as an Additional Insured under ISO Business Auto policy Designated Insured Endorsement form CA 20 48 or equivalent. If any Excess insurance is utilized to fulfill the requirements of this subsection, such Excess insurance shall be “follow form” equal or broader in coverage scope than underlying insurance. C. Professional Liability. If this Agreement is the subject of any professional services or work, or if the Contractor engages in any professional services or work adjunct or residual to performing the work under this Agreement, the Contractor shall maintain Professional Liability insurance covering negligent errors and omissions arising out of the Services performed by the Contractor, or anyone employed by the Contractor, or anyone for whose negligent acts, mistakes, errors and omissions the Contractor is legally liable, with an unimpaired liability insurance limit of $2,000,000 each claim and $2,000,000 annual aggregate. In the event the Professional Liability insurance policy is written on a “claims made” basis, coverage shall extend for two years past completion and acceptance of the Services, and the Contractor shall be required to submit certificates of insurance and a copy of the declaration page(s) of the insurance policies evidencing proper coverage is in effect as required above. D. Workers’ Compensation Insurance. Contractor shall maintain Workers’ Compensation insurance to cover obligations imposed by federal and state statutes having jurisdiction over Contractor’s employees engaged in the performance of work or services under this Agreement and shall also maintain Employers Liability Insurance of not less than $500,000 for each accident, $500,000 disease for each employee and $1,000,000 disease policy limit. 13.3 Cancellation and Expiration Notice. Insurance required herein shall not expire, be canceled, or be materially changed without 30 days’ prior written notice to the Town. 14. Applicable Law; Venue. In the performance of this Agreement, Contractor shall abide by and conform to any and all laws of the United States, the State of Arizona and the Town of Fountain Hills, including, but not limited to, federal and state executive orders providing for equal employment and procurement opportunities, the Federal Occupational Safety and Health Act and any other federal or state laws applicable to this Agreement. This Agreement shall be governed by the laws of the State of Arizona and suit pertaining to this Agreement may be brought only in courts in the State of Arizona. 1803179.1 7 15. Termination; Cancellation. 15.1 For Town’s Convenience. This Agreement is for the convenience of the Town and, as such, may be terminated without cause after receipt by Contractor of written notice by the Town. Upon termination for convenience, Contractor shall be paid for all undisputed services performed to the termination date. 15.2 For Cause. If either party fails to perform any obligation pursuant to this Agreement and such party fails to cure its nonperformance within 30 days after notice of nonperformance is given by the non-defaulting party, such party will be in default. In the event of such default, the non-defaulting party may terminate this Agreement immediately for cause and will have all remedies that are available to it at law or in equity including, without limitation, the remedy of specific performance. If the nature of the defaulting party’s nonperformance is such that it cannot reasonably be cured within 30 days, then the defaulting party will have such additional periods of time as may be reasonably necessary under the circumstances, provided the defaulting party immediately (A) provides written notice to the non-defaulting party and (B) commences to cure its nonperformance and thereafter diligently continues to completion the cure of its nonperformance. In no event shall any such cure period exceed 90 days. In the event of such termination for cause, payment shall be made by the Town to the Contractor for the undisputed portion of its fee due as of the termination date. 15.3 Due to Work Stoppage. This Agreement may be terminated by the Town upon 30 days’ written notice to Contractor in the event that the Services are permanently abandoned. In the event of such termination due to work stoppage, payment shall be made by the Town to the Contractor for the undisputed portion of its fee due as of the termination date. 15.4 Conflict of Interest. This Agreement is subject to the provisions of ARIZ. REV. STAT. § 38-511. The Town may cancel this Agreement without penalty or further obligations by the Town or any of its departments or agencies if any person significantly involved in initiating, negotiating, securing, drafting or creating this Agreement on behalf of the Town or any of its departments or agencies is, at any time while the Agreement or any extension of the Agreement is in effect, an employee of any other party to the Agreement in any capacity or a contractor to any other party of the Agreement with respect to the subject matter of the Agreement. 15.5 Gratuities. The Town may, by written notice to the Contractor, cancel this Agreement if it is found by the Town that gratuities, in the form of economic opportunity, future employment, entertainment, gifts or otherwise, were offered or given by the Contractor or any agent or representative of the Contractor to any officer, agent or employee of the Town for the purpose of securing this Agreement. In the event this Agreement is canceled by the Town pursuant to this provision, the Town shall be entitled, in addition to any other rights and remedies, to recover or withhold from the Contractor an amount equal to 150% of the gratuity. 15.6 Agreement Subject to Appropriation. This Agreement is subject to the provisions of ARIZ. CONST. ART. IX, § 5 and ARIZ. REV. STAT. § 42-17106. The provisions of this Agreement for payment of funds by the Town shall be effective when funds are appropriated 1803179.1 8 for purposes of this Agreement and are actually available for payment. The Town shall be the sole judge and authority in determining the availability of funds under this Agreement and the Town shall keep the Contractor fully informed as to the availability of funds for the Agreement. The obligation of the Town to make any payment pursuant to this Agreement is a current expense of the Town, payable exclusively from such annual appropriations, and is not a general obligation or indebtedness of the Town. If the Town Council fails to appropriate money sufficient to pay the amounts as set forth in this Agreement during any immediately succeeding fiscal year, this Agreement shall terminate at the end of then-current fiscal year and the Town and the Contractor shall relieved of any subsequent obligation under this Agreement. 16. Contract Bonds Required. Prior to issuance of the Notice to Proceed, the Contractor shall furnish the Town the following bonds, which shall become binding on the Contractor when delivered. 16.1 Performance Bond. The Contractor shall be required to furnish non- revocable security binding the Contractor to provide faithful performance of this Agreement in the amount of 100% of the total Agreement price payable to the Town. Performance security shall be in the form of a performance bond, certified check or cashier’s check. This security must be in the possession of the Town’s Development Services Department within seven days after execution of this Agreement by the Town. If the Contractor fails to execute the security document as required, the Contractor may be found in default and the Agreement terminated by the Town. In case of default the Town reserves all rights. All performance bonds shall be executed in the form attached hereto as Exhibit C, duly executed by the Contractor as Principal and having as Surety thereon a Surety company approved by the Town and holding a Certificate of Authority to transact surety business in the State of Arizona by the Arizona Department of Insurance. Individual sureties are unacceptable. All Insurers and Sureties shall have, at the time of submission of the performance bond, an A.M. Best’s Key Rating Guide of “A-” or better as currently listed in the most recent Best Key Guide, published by the A.M. Best Company. 16.2 Payment Bond. The Contractor shall be required to furnish non-revocable security for the protection of all persons supplying labor and material to the Contractor or any subcontractor for the performance of any work related to this Agreement. Payment security shall be in the amount of 100% of the total Agreement price and be payable to the Town. Payment security shall be in the form of a payment bond, certified check or cashier’s check. This security must be in the possession of the Town’s Development Services Department within seven days after execution of this Agreement by the Town. If the Contractor fails to execute the security document as required, the Contractor may be found in default and the Agreement terminated by the Town. In case of default the Town reserves all rights. All payment bonds shall be executed in the form attached hereto as Exhibit D, duly executed by the Contractor as Principal and having as Surety thereon a Surety company approved by the Town and holding a Certificate of Authority to transact surety business in the State of Arizona by the Arizona Department of Insurance. Individual sureties are unacceptable. All Insurers and Sureties shall have, at the time of submission of the payment bond, an A.M. Best’s Key Rating Guide of “A-” or better as currently listed in the most recent Best Key Guide, published by the A.M. Best Company. 1803179.1 9 17. Miscellaneous. 17.1 Independent Contractor. The Contractor acknowledges and agrees that the Services provided under this Agreement are being provided as an independent contractor, not as an employee or agent of the Town. Contractor, its employees and subcontractors are not entitled to workers’ compensation benefits from the Town. The Town does not have the authority to supervise or control the actual work of Contractor, its employees or subcontractors. The Contractor, and not the Town, shall determine the time of its performance of the services provided under this Agreement so long as Contractor meets the requirements of its agreed Scope of Work as set forth in Section 2 above. Contractor is neither prohibited from entering into other contracts nor prohibited from practicing its profession elsewhere. Town and Contractor do not intend to nor will they combine business operations under this Agreement. 17.2 Laws and Regulations. The Contractor shall keep fully informed and shall at all times during the performance of its duties under this Agreement ensure that it and any person for whom the Contractor is responsible abides by, and remains in compliance with, all rules, regulations, ordinances, statutes or laws affecting the Services, including, but not limited to, the following: (A) existing and future Town and County ordinances and regulations, (B) existing and future State and Federal laws and (C) existing and future Occupational Safety and Health Administration standards. 17.3 Amendments. This Agreement may be modified only by a written amendment signed by persons duly authorized to enter into contracts on behalf of the Town and the Contractor. 17.4 Provisions Required by Law. Each and every provision of law and any clause required by law to be in the Agreement will be read and enforced as though it were included herein and, if through mistake or otherwise any such provision is not inserted, or is not correctly inserted, then upon the application of either party, the Agreement will promptly be physically amended to make such insertion or correction. 17.5 Severability. The provisions of this Agreement are severable to the extent that any provision or application held to be invalid by a Court of competent jurisdiction shall not affect any other provision or application of the Agreement which may remain in effect without the invalid provision or application. 17.6 Relationship of the Parties. It is clearly understood that each party will act in its individual capacity and not as an agent, employee, partner, joint venturer, or associate of the other. An employee or agent of one party shall not be deemed or construed to be the employee or agent of the other for any purpose whatsoever. The Contractor is advised that taxes or Social Security payments will not be withheld from any Town payments issued hereunder and Contractor agrees to be fully and solely responsible for the payment of such taxes or any other tax applicable to this Agreement. 17.7 Entire Agreement; Interpretation; Parol Evidence. This Agreement represents the entire agreement of the parties with respect to its subject matter, and all previous agreements, whether oral or written, entered into prior to this Agreement are hereby revoked and 1803179.1 10 superseded by this Agreement. No representations, warranties, inducements or oral agreements have been made by any of the parties except as expressly set forth herein, or in any other contemporaneous written agreement executed for the purposes of carrying out the provisions of this Agreement. This Agreement shall be construed and interpreted according to its plain meaning, and no presumption shall be deemed to apply in favor of, or against the party drafting the Agreement. The parties acknowledge and agree that each has had the opportunity to seek and utilize legal counsel in the drafting of, review of, and entry into this Agreement. 17.8 Assignment. No right or interest in this Agreement shall be assigned by Contractor without prior, written permission of the Town signed by the Town Manager and no delegation of any duty of Contractor shall be made without prior, written permission of the Town signed by the Town Manager. Any attempted assignment or delegation by Contractor in violation of this provision shall be a breach of this Agreement by Contractor. 17.9 Subcontracts. No subcontract shall be entered into by the Contractor with any other party to furnish any of the material or services specified herein without the prior written approval of the Town. The Contractor is responsible for performance under this Agreement whether or not subcontractors are used. 17.10 Rights and Remedies. No provision in this Agreement shall be construed, expressly or by implication, as waiver by the Town of any existing or future right and/or remedy available by law in the event of any claim of default or breach of this Agreement. The failure of the Town to insist upon the strict performance of any term or condition of this Agreement or to exercise or delay the exercise of any right or remedy provided in this Agreement, or by law, or the Town’s acceptance of and payment for services, shall not release the Contractor from any responsibilities or obligations imposed by this Agreement or by law, and shall not be deemed a waiver of any right of the Town to insist upon the strict performance of this Agreement. 17.11 Attorneys’ Fees. In the event either party brings any action for any relief, declaratory or otherwise, arising out of this Agreement or on account of any breach or default hereof, the prevailing party shall be entitled to receive from the other party reasonable attorneys’ fees and reasonable costs and expenses, determined by the court sitting without a jury, which shall be deemed to have accrued on the commencement of such action and shall be enforced whether or not such action is prosecuted through judgment. 17.12 Liens. All materials or services shall be free of all liens and, if the Town requests, a formal release of all liens shall be delivered to the Town. 17.13 Offset. A. Offset for Damages. In addition to all other remedies at law or equity, the Town may offset from any money due to the Contractor any amounts Contractor owes to the Town for damages resulting from breach or deficiencies in performance or breach of any obligation under this Agreement. 1803179.1 11 B. Offset for Delinquent Fees or Taxes. The Town may offset from any money due to the Contractor any amounts Contractor owes to the Town for delinquent fees, transaction privilege taxes and property taxes, including any interest or penalties. 17.14 Notices and Requests. Any notice or other communication required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given if (A) delivered to the party at the address set forth below, (B) deposited in the U.S. Mail, registered or certified, return receipt requested, to the address set forth below or (C) given to a recognized and reputable overnight delivery service, to the address set forth below: If to the Town: Town of Fountain Hills 16705 East Avenue of the Fountains Fountain Hills, Arizona 85268 Attn: Kenneth W. Buchanan, Town Manager With copy to: GUST ROSENFELD, P.L.C. One East Washington Street, Suite 1600 Phoenix, Arizona 85004-2553 Attn: Andrew J. McGuire, Esq. If to Contractor: Ace Asphalt of Arizona, Inc. 3030 South 7th Street Phoenix, AZ 85040-1163 Attn: Ron Erickson or at such other address, and to the attention of such other person or officer, as any party may designate in writing by notice duly given pursuant to this subsection. Notices shall be deemed received (A) when delivered to the party, (B) three business days after being placed in the U.S. Mail, properly addressed, with sufficient postage or (C) the following business day after being given to a recognized overnight delivery service, with the person giving the notice paying all required charges and instructing the delivery service to deliver on the following business day. If a copy of a notice is also given to a party’s counsel or other recipient, the provisions above governing the date on which a notice is deemed to have been received by a party shall mean and refer to the date on which the party, and not its counsel or other recipient to which a copy of the notice may be sent, is deemed to have received the notice. 17.15 Confidentiality of Records. The Contractor shall establish and maintain procedures and controls that are acceptable to the Town for the purpose of ensuring that information contained in its records or obtained from the Town or from others in carrying out its obligations under this Agreement shall not be used or disclosed by it, its agents, officers, or employees, except as required to perform Contractor’s duties under this Agreement. Persons requesting such information should be referred to the Town. Contractor also agrees that any information pertaining to individual persons shall not be divulged other than to employees or officers of Contractor as needed for the performance of duties under this Agreement. 17.16 Records and Audit Rights. To ensure that the Contractor and its subcontractors are complying with the warranty under subsection 17.17 below, Contractor’s and 1803179.1 12 its subcontractor’s books, records, correspondence, accounting procedures and practices, and any other supporting evidence relating to this Agreement, including the papers of the Contractor and its subcontractors’ employees who perform any work or Services pursuant to this Agreement (all the foregoing hereinafter referred to as “Records”), shall be open to inspection and subject to audit and/or reproduction during normal working hours by the Town, to the extent necessary to adequately permit (A) evaluation and verification of any invoices, payments or claims based on Contractor’s and its subcontractors’ actual costs (including direct and indirect costs and overhead allocations) incurred, or units expended directly in the performance of work under this Agreement and (B) evaluation of the Contractor’s and its subcontractors’ compliance with the Arizona employer sanctions laws referenced in subsection 17.17 below. To the extent necessary for the Town to audit Records as set forth in this subsection, Contractor and its subcontractors hereby waive any rights to keep such Records confidential. For the purpose of evaluating or verifying such actual or claimed costs or units expended, the Town shall have access to said Records, even if located at its subcontractors’ facilities, from the effective date of this Agreement for the duration of the work and until three years after the date of final payment by the Town to Contractor pursuant to this Agreement. Contractor and its subcontractors shall provide the Town with adequate and appropriate workspace so that the Town can conduct audits in compliance with the provisions of this subsection. The Town shall give Contractor or its subcontractors reasonable advance notice of intended audits. Contractor shall require its subcontractors to comply with the provisions of this subsection by insertion of the requirements hereof in any subcontract pursuant to this Agreement. 17.17 E-verify Requirements. To the extent applicable under ARIZ. REV. STAT. § 41-4401, the Contractor and its subcontractors warrant compliance with all federal immigration laws and regulations that relate to their employees and their compliance with the E-verify requirements under ARIZ. REV. STAT. § 23-214(A). Contractor’s or its subcontractor’s failure to comply with such warranty shall be deemed a material breach of this Agreement and may result in the termination of this Agreement by the Town. 17.18 Scrutinized Business Operations. Pursuant to ARIZ. REV. STAT. §§ 35- 391.06 and 35-393.06, the Contractor certifies that it does not have scrutinized business operations in Sudan or Iran. For the purpose of this subsection the term “scrutinized business operations” shall have the meanings set forth in ARIZ. REV. STAT. § 35-391 or 35-393, as applicable. If the Town determines that the Contractor submitted a false certification, the Town may impose remedies as provided by law including terminating this Agreement pursuant to subsection 15.2 above. 17.19 Conflicting Terms. In the event of any inconsistency, conflict or ambiguity among the Mohave Contract, this Agreement, the Scope of Work, the Fee Proposal, and the Contractor’s response to the cooperative bid, the documents shall govern in the order listed herein. 17.20 Non-Exclusive Contract. This Agreement is entered into with the understanding and agreement that it is for the sole convenience of the Town. The Town reserves the right to obtain like goods and services from another source when necessary. 1803179.1 13 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first set forth above. “Town” TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation Kenneth W. Buchanan, Town Manager ATTEST: Bevelyn J. Bender, Town Clerk (ACKNOWLEDGMENT) STATE OF ARIZONA ) ) ss. COUNTY OF MARICOPA ) This instrument was acknowledged before me on September ____, 2012, by Kenneth W. Buchanan, the Town Manager of the TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation, on behalf of the Town of Fountain Hills. Notary Public in and for the State of Arizona (affix notary seal here) [SIGNATURES CONTINUE ON FOLLOWING PAGE] 1803179.1 15 EXHIBIT A TO CONSTRUCTION SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND ACE ASPHALT OF ARIZONA, INC. [Mohave Contract] See following pages. 1803179.1 16 EXHIBIT B TO CONSTRUCTION SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND ACE ASPHALT OF ARIZONA, INC. [Scope of Work and Fee Proposal] See following pages. 1803179.1 17 EXHIBIT C TO CONSTRUCTION SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND ACE ASPHALT OF ARIZONA, INC. [Performance Bond] See following page. 1804337.1 PERFORMANCE BOND KNOW ALL PERSONS BY THESE PRESENTS: THAT, Ace Asphalt of Arizona, Inc., an Arizona corporation (hereinafter called the “Principal”), as Principal, and _____________________, a corporation authorized to do business in the State of Arizona by the Department of Insurance pursuant to Title 20, Chapter 2, Article 1, Arizona Revised Statutes, organized and existing under the laws of the State of ____________, with its principal office in the City of_________________, (hereinafter called the “Surety”), as Surety, are held and firmly bound unto the Town of Fountain Hills (hereinafter called the “Obligee”) in the amount of Fifty-Six Thousand, Seven and No/100 Dollars ($56,007.00), for the payment whereof, the said Principal and Surety bind themselves, and their heirs, administrators, executors, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, the Principal has entered into a certain written Agreement with the Obligee, dated September , 2012, for parking lot repair, surface seal, slurry seal and striping services, which is hereby referred to and made a part hereof as fully and to the same extent as if copied at length herein (the “Agreement”). NOW, THEREFORE, the condition of this obligation is that if the principal faithfully performs and fulfills all of the undertakings, covenants, terms, conditions of the Agreement during the original term of the Agreement and any extension of the Agreement, with or without notice to the surety, and during the life of any guaranty required under the Agreement, and also performs and fulfills all of the undertakings, covenants, terms, and conditions of all duly authorized modifications of the Agreement that may hereafter be made, notice of which modifications to the surety being hereby waived, the above obligation is void. Otherwise it remains in full force and effect. The prevailing party in a suit on this bond shall recover as part of the judgment reasonable attorney fees that may be fixed by the court. The performance under this bond is limited to the services to be performed under the Agreement. Witness our hands this day of September, 2012. “Principal” Ace Asphalt of Arizona, Inc., an Arizona corporation By: ________________________ Seal ____________ “Surety” ____________________________________________ By: ________________________ Seal ____________ “Agency of Record” ____________________________________________ By: ________________________________________ 1803179.1 18 EXHIBIT D TO CONSTRUCTION SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND ACE ASPHALT OF ARIZONA, INC. [Payment Bond] See following page. 1804337.1 PAYMENT BOND KNOW ALL PERSONS BY THESE PRESENTS: THAT, Ace Asphalt of Arizona, Inc., an Arizona corporation (hereinafter called the “Principal”), as Principal, and ____________________________, a corporation authorized to do business in the State of Arizona by the Department of Insurance pursuant to Title 20, Chapter 2, Article 1, Arizona Revised Statutes, organized and existing under the laws of the State of ______________, with its principal office in the City of ________________ (hereinafter called the “Surety”), as Surety, are held and firmly bound unto the Town of Fountain Hills (hereinafter called the “Obligee”) in the amount of Fifty-Six Thousand, Seven and No/100 Dollars ($56,007.00), for the payment whereof, the said Principal and Surety bind themselves, and their heirs, administrators, executors, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, the Principal has entered into a certain written agreement with the Obligee, dated September _____, 2012, for parking lot repair, surface seal, slurry seal and striping services, which is hereby referred to and made a part hereof as fully and to the same extent as if copied at length herein (the “Agreement”). NOW, THEREFORE, the condition of this obligation is that if the Principal promptly pays all monies due to all persons supplying labor or materials to the Principal or the Principal's subcontractors in the prosecution of the services provided in the Agreement, this obligation is void. Otherwise it remains in full force and effect. The prevailing party in a suit on this bond shall recover as a part of the judgment reasonable attorney fees that may be fixed by the court. Witness our hands this ______ day of September, 2012. “Principal” Ace Asphalt of Arizona, Inc., an Arizona corporation By: ________________________ Seal ____________ “Surety” ____________________________________________ By: ________________________ Seal ____________ “Agency of Record” ____________________________________________ By: ________________________________________ Page 1 of 2 TOWN OF FOUNTAIN HILLS TOWN COUNCIL AGENDA ACTION FORM Meeting Date: 9/20/2012 Meeting Type: Regular Session Agenda Type: Regular Submitting Department: Administration Staff Contact Information: Andrew McGuire, Town Attorney Strategic Values: Not Applicable (NA) Council Goal: Not Applicable (NA) REQUEST TO COUNCIL (Agenda Language): CONSIDERATION of the REAPPOINTMENT of Fountain Hills' Presiding Judge Mitchell Eisenberg to a four-year term beginning November 1, 2012 and ending October 31, 2016, and CONSIDERATION of an AMENDMENT to his employment agreement. Applicant: N/A Applicant Contact Information: N/A Property Location: N/A Related Ordinance, Policy or Guiding Principle: N/A Staff Summary (background): On November 1, 2010, Judge Eisenberg was appointed for a two year term as the Presiding Judge for Fountain Hills. That appointment is due for renewal November 1, 2012. Pursuant to Section 5-2-1 of the Town Code, the Presiding Judge must be reappointed for a term of four years. As you all will remember, the Council is prohibited from specifically changing the Judge's salary during his term of appointment. Because the current agreement does not provide for any salary adjustments during its two-year term, the Judge did not receive the benefit of the 1.0% cost of living adjustment in FY 2011-12 or the 2.5% cost of living adjustment for FY 2012- 13 given to the rest of the Town staff. To ensure equity without running afoul of the prohibition against changing the Judge’s salary during his term, the attached form(s) of amendment to the professional services and employment agreement include provisions that tie any increases for the Judge to cost of living adjustments given to other Town staff. Two versions of the amendment are attached: (i) Option A, which provides for an adjustment to the Judge’s salary to coincide with the 2.5% cost of living adjustment given to Town staff for FY 2012-13 and (ii) Option B, which provides for an adjustment to the Judge’s salary to coincide with the 2.5% cost of living adjustment given to Town staff for FY 2012-13 and the 1% cost of living adjustment given to Town staff for FY 2011-12. Risk Analysis (options or alternatives with implications): Non-renewal of the Presiding Judge Appointment would result in recruitment for a new Presiding Judge. Fiscal Impact (initial and ongoing costs; budget status): Current salary of $92,000 may be increased to (i) $94,300 under OPTION A or (ii) $95,243 under OPTION B. Budget Reference (page number): N/A Funding Source: NA If Multiple Funds utilized, list here: 1806981.2 FIRST AMENDMENT TO PROFESSIONAL SERVICES AND EMPLOYMENT AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND MITCHELL S. EISENBERG THIS FIRST AMENDMENT TO PROFESSIONAL SERVICES AND EMPLOYMENT AGREEMENT (this “First Amendment”) is entered into on September 20, 2012, by and between the Town of Fountain Hills, an Arizona municipal corporation (the “Town”) and Mr. Mitchell S. Eisenberg (“Eisenberg”). RECITALS A. The Town and Eisenberg entered into a Professional Services and Employment Agreement dated October 18, 2010, for Eisenberg to serve in the position of Presiding Judge of the Town Court (the “Original Agreement”). B. The Town and Eisenberg desire to amend the Original Agreement to (i) extend the term for an additional four years, (ii) make an adjustment to Eisenberg’s base compensation, (iii) provide for a mechanism for annually adjusting Eisenberg’s compensation commensurate with other Town employees and (iv) add additional duties for Eisenberg. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated herein by reference, the following mutual covenants and conditions, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Town and Eisenberg hereby agree as follows: 1. Term. This First Amendment shall be effective on November 1, 2012, and shall remain in full force and effect through October 31, 2016, unless sooner terminated for cause as set forth in Section 5 of the Original Agreement. 2. Compensation. 2.1 Base Salary. Eisenberg shall be paid, in bi-weekly installments $94,300.00 for the period from November 1, 2012 to October 31, 2016, unless increased pursuant to this Subsection. In the event that the Town’s FY 2013-2014, FY 2014-2015 or FY 2015-2016 annual budgets include a cost-of-living increase for all non-exempt employees (a “COLA”), Eisenberg shall be entitled to an increase in base salary equal to the percentage of the COLA, beginning with the first pay period of FY 2013-2014. Eisenberg expressly agrees and understands that no adjustment to his base salary shall occur relative to any merit increases provided to Town employees as part of the FY 2013-2014, FY 2014-2015 or FY 2015-2016 annual budgets. 1806981.2 2 2.2 One-Time Adjustment. Eisenberg shall be paid, in one lump sum with the first payroll in November, 2012, the amount of $707.69 to correlate with the COLA received by non-exempt Town Employees for FY 2012-2013. 3. Modification to Duties. Section 3 of the Original Agreement is hereby amended to add a new Subsection E (Community Interaction), to read as follows: E. Community Interaction. Eisenberg shall, in addition to his duties as set forth above, (1) oversee and participate in the Town’s Teen Court, including outreach to the Fountain Hills High School to recruit students, (2) participate in the Court component of the Town’s Citizens Academy, (3) conduct outreach to the Fountain Hills High School to assist with criminal law and justice studies courses and (4) participate in such local charitable or civic organizations as Eisenberg determines appropriate. 4. Effect of Amendment. In all other respects, the Original Agreement is affirmed and ratified and, except modified herein, all terms and conditions of the Original Agreement shall remain in full force and effect. 5. Non-Default. By executing this First Amendment, Eisenberg affirmatively asserts that (A) the Town is not currently in default, nor has been in default at any time prior to this First Amendment, under any of the terms or conditions of the Original Agreement and (B) any and all claims, known and unknown, relating to the Original Agreement and existing on or before the date of this First Amendment are forever waived. 6. Conflict of Interest. This First Amendment and the Original Agreement may be canceled by the Town pursuant to ARIZ. REV. STAT. § 38-511. IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first set forth above. “EISENBERG” “TOWN” TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation Mitchell S. Eisenberg Linda M. Kavanagh, Mayor ATTEST: Bevelyn J. Bender, Town Clerk 1806981.3 FIRST AMENDMENT TO PROFESSIONAL SERVICES AND EMPLOYMENT AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND MITCHELL S. EISENBERG THIS FIRST AMENDMENT TO PROFESSIONAL SERVICES AND EMPLOYMENT AGREEMENT (this “First Amendment”) is entered into on September 20, 2012, by and between the Town of Fountain Hills, an Arizona municipal corporation (the “Town”) and Mr. Mitchell S. Eisenberg (“Eisenberg”). RECITALS A. The Town and Eisenberg entered into a Professional Services and Employment Agreement dated October 18, 2010, for Eisenberg to serve in the position of Presiding Judge of the Town Court (the “Original Agreement”). B. The Town and Eisenberg desire to amend the Original Agreement to (i) extend the term for an additional four years, (ii) make an adjustment to Eisenberg’s base compensation, (iii) provide for a mechanism for annually adjusting Eisenberg’s compensation commensurate with other Town employees and (iv) add additional duties for Eisenberg. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated herein by reference, the following mutual covenants and conditions, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Town and Eisenberg hereby agree as follows: 1. Term. This First Amendment shall be effective on November 1, 2012, and shall remain in full force and effect through October 31, 2016, unless sooner terminated for cause as set forth in Section 5 of the Original Agreement. 2. Compensation. 2.1 Base Salary. Eisenberg shall be paid, in bi-weekly installments $95,243.00 for the period from November 1, 2012 to October 31, 2016, unless increased pursuant to this Subsection. In the event that the Town’s FY 2013-2014, FY 2014-2015 or FY 2015-2016 annual budgets include a cost-of-living increase for all non-exempt employees (a “COLA”), Eisenberg shall be entitled to an increase in base salary equal to the percentage of the COLA, beginning with the first pay period of FY 2013-2014. Eisenberg expressly agrees and understands that no adjustment to his base salary shall occur relative to any merit increases provided to Town employees as part of the FY 2013-2014, FY 2014-2015 or FY 2015-2016 annual budgets. 1806981.3 2 2.2 One-Time Adjustment. Eisenberg shall be paid, in one lump sum with the first payroll in November, 2012, the amount of $1,917.84 to correlate with the COLA received by non-exempt Town Employees for FY 2012-2013. 3. Modification to Duties. Section 3 of the Original Agreement is hereby amended to add a new Subsection E (Community Interaction), to read as follows: E. Community Interaction. Eisenberg shall, in addition to his duties as set forth above, (1) oversee and participate in the Town’s Teen Court, including outreach to the Fountain Hills High School to recruit students, (2) participate in the Court component of the Town’s Citizens Academy, (3) conduct outreach to the Fountain Hills High School to assist with criminal law and justice studies courses and (4) participate in such local charitable or civic organizations as Eisenberg determines appropriate. 4. Effect of Amendment. In all other respects, the Original Agreement is affirmed and ratified and, except modified herein, all terms and conditions of the Original Agreement shall remain in full force and effect. 5. Non-Default. By executing this First Amendment, Eisenberg affirmatively asserts that (A) the Town is not currently in default, nor has been in default at any time prior to this First Amendment, under any of the terms or conditions of the Original Agreement and (B) any and all claims, known and unknown, relating to the Original Agreement and existing on or before the date of this First Amendment are forever waived. 6. Conflict of Interest. This First Amendment and the Original Agreement may be canceled by the Town pursuant to ARIZ. REV. STAT. § 38-511. IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first set forth above. “EISENBERG” “TOWN” TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation Mitchell S. Eisenberg Linda M. Kavanagh, Mayor ATTEST: Bevelyn J. Bender, Town Clerk