HomeMy WebLinkAboutC2022-019 - FH Veterans Memorial, Inc.
Contract No. 2022-019
PROFESSIONAL SERVICES AGREEMENT
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
FOUNTAIN HILLS VETERAN’S MEMORIAL, INC.
THIS PROFESSIONAL SERVICES AGREEMENT (this “Agreement”) is entered into
upon execution, between the Town of Fountain Hills, an Arizona municipal corporation (the
“Town”) and Fountain Hills Veteran’s Memorial, Inc., a(n) Arizona registered 501(c)(3) non-
profit corporation (the “Veteran’s Memorial”).
RECITALS
A. WHEREAS, pursuant to section 7.1 of the Town’s Procurement Policy and
Section 3-3-26 of the Town Code, the Town may directly select certain services; and
B. WHEREAS, Fountain Hills Veteran’s Memorial, Inc. is a registered 501(c)(3)
non-profit corporation with access to a pool of volunteers; and
C. WHEREAS, the Town desires to enter into an Agreement with Fountain Hills
Veteran’s Memorial, Inc. to perform the services described in Section 2.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing introduction and recitals, which
are incorporated herein by reference, the following mutual covenants and conditions, and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Town and the Veteran’s Memorial hereby agree as follows:
1. Term of Agreement. This Agreement shall be effective as of the date first set forth
above and shall remain in full force and effect until June 30, 2024.
2. Scope of Work. Veteran’s Memorial shall provide upkeep and maintenance of
Veterans Memorial at Fountain Park to include: all grounds and associated landscaping, plaques,
cannon, and all items on the Veterans Memorial premises. Fiscal year 2021-2022 shall include
$14,000 for project related costs for plaques and related items, as well as installation costs.
3. Compensation. The Town shall pay Veteran’s Memorial a lump sum of $17,000
upon the execution of the Agreement; thereafter the annual amount shall be $3,000. The aggregate
amount shall not exceed $23,000.
4. Payments. The Town shall pay the Veteran’s Memorial monthly, based upon work
performed and completed to date, and upon submission and approval of invoices. All invoices
shall document and itemize all work completed to date. Each invoice statement shall include a
record of time expended and work performed in sufficient detail to justify payment. This
Agreement must be referenced on all invoices.
5. Documents. All documents, including any intellectual property rights thereto,
prepared and submitted to the Town pursuant to this Agreement shall be the property of the Town.
6. Consultant Personnel. Veteran’s Memorial shall provide adequate, experienced
personnel, capable of and devoted to the successful performance of the Services under this
Agreement. Veteran’s Memorial agrees to assign specific individuals to key positions. If deemed
qualified, the Veteran’s Memorial is encouraged to hire Town residents to fill vacant positions at
all levels. Consultant agrees that, upon commencement of the Services to be performed under this
Agreement, key personnel shall not be removed or replaced without prior written notice to the
Town. If key personnel are not available to perform the Services for a continuous period exceeding
30 calendar days, or are expected to devote substantially less effort to the Services than initially
anticipated, Veteran’s Memorial shall immediately notify the Town of same and shall, subject to
the concurrence of the Town, replace such personnel with personnel possessing substantially equal
ability and qualifications.
7. Inspection; Acceptance. All work shall be subject to inspection and acceptance by
the Town at reasonable times during Veteran’s Memorial’s performance. The Consultant shall
provide and maintain a self-inspection system that is acceptable to the Town.
8. Licenses; Materials. Veteran’s Memorial shall maintain in current status all federal,
state and local licenses and permits required for the operation of the business conducted by the
Veteran’s Memorial. The Town has no obligation to provide Veteran’s Memorial, 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 Veteran’s Memorial.
9. Performance Warranty. Veteran’s Memorial warrants that the Services rendered
will conform to the requirements of this Agreement and with the care and skill ordinarily used by
members of the same profession practicing under similar circumstances at the same time and in
the same locality.
10. Indemnification. To the fullest extent permitted by law, the Veteran’s Memorial
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 losses, claims, damages, liabilities, costs and expenses (including, but not limited
to, reasonable attorneys’ fees, court costs and the costs of appellate proceedings) to which any
such Indemnified Party may become subject, under any theory of liability whatsoever (“Claims”),
insofar as such Claims (or actions in respect thereof) relate to, arise out of, or are caused by or
based upon the negligent acts, intentional misconduct, errors, mistakes or omissions, breach of
contract, in connection with the work or services of the Veteran’s Memorial, its officers,
employees, agents, or any tier of subcontractor in the performance of this Agreement. The amount
and type of insurance coverage requirements set forth below will in no way be construed as limiting
the scope of the indemnity in this Section.
11. Insurance.
[Omitted]
12. Termination; Cancellation.
12.1 For Town’s Convenience. This Agreement is for the convenience of the
Town and, as such, may be terminated without cause after receipt by Veteran’s Memorial of
written notice by the Town. Upon termination for convenience, Veteran’s Memorial shall be paid
for all undisputed services performed to the termination date.
12.2 For Cause. If either party fails to perform any obligation pursuant to this
Agreement and such party fails to cure its nonperformance within 30 days after notice of
nonperformance is given by the non-defaulting party, such party will be in default. In the event of
such default, the non-defaulting party may terminate this Agreement immediately for cause and
will have all remedies that are available to it at law or in equity including, without limitation, the
remedy of specific performance. If the nature of the defaulting party’s nonperformance is such
that it cannot reasonably be cured within 30 days, then the defaulting party will have such
additional periods of time as may be reasonably necessary under the circumstances, provided the
defaulting party immediately (A) provides written notice to the non-defaulting party and (B)
commences to cure its nonperformance and thereafter diligently continues to completion the cure
of its nonperformance. In no event shall any such cure period exceed 90 days. In the event of
such termination for cause, payment shall be made by the Town to the Veteran’s Memorial for the
undisputed portion of its fee due as of the termination date.
12.3 Due to Work Stoppage. This Agreement may be terminated by the Town
upon 30 days’ written notice to Veteran’s Memorial 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 Veteran’s Memorial for the undisputed portion of its fee due as of the termination
date.
12.4 Conflict of Interest. This Agreement is subject to the provisions of ARIZ.
REV. STAT. § 38-511. The Town may cancel this Agreement without penalty or further obligations
by the Town or any of its departments or agencies if any person significantly involved in initiating,
negotiating, securing, drafting or creating this Agreement on behalf of the Town or any of its
departments or agencies is, at any time while this Agreement or any extension of this Agreement
is in effect, an employee of any other party to this Agreement in any capacity or a Veteran’s
Memorial to any other party of this Agreement with respect to the subject matter of this Agreement.
12.5 Gratuities. The Town may, by written notice to the Veteran’s Memorial,
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
Veteran’s Memorial or any agent or representative of the Veteran’s Memorial to any officer, agent
or employee of the Town for the purpose of securing this Agreement. In the event this Agreement
is canceled by the Town pursuant to this provision, the Town shall be entitled, in addition to any
other rights and remedies, to recover and withhold from the Consultant an amount equal to 150%
of the gratuity.
12.6 Agreement Subject to Appropriation. This Agreement is subject to the
provisions of ARIZ. CONST. ART. IX, § 5 and ARIZ. REV. STAT. § 42-17106. The provisions of
this Agreement for payment of funds by the Town shall be effective when funds are appropriated
for purposes of this Agreement and are actually available for payment. The Town shall be the sole
judge and authority in determining the availability of funds under this Agreement and the Town
shall keep the Veteran’s Memorial fully informed as to the availability of funds for this Agreement.
The obligation of the Town to make any payment pursuant to this Agreement is a current expense
of the Town, payable exclusively from such annual appropriations, and is not a general obligation
or indebtedness of the Town. If the Town Council fails to appropriate money sufficient to pay the
amounts as set forth in this Agreement during any immediately succeeding fiscal year, this
Agreement shall terminate at the end of then-current fiscal year and the Town and the Veteran’s
Memorial shall be relieved of any subsequent obligation under this Agreement.
13. Miscellaneous.
13.1 Independent Contractor. It is clearly understood that each party will act in
its individual capacity and not as an agent, employee, partner, joint venturer, or associate of the
other. An employee or agent of one party shall not be deemed or construed to be the employee or
agent of the other for any purpose whatsoever. Veteran’s Memorial 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. Veteran’s Memorial, 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 Veteran’s Memorial, its employees or
subcontractors. Veteran’s Memorial, and not the Town, shall determine the time of its
performance of the services provided under this Agreement so long as Veteran’s Memorial meets
the requirements as agreed in Section 2. Veteran’s Memorial is neither prohibited from entering
into other contracts nor prohibited from practicing its profession elsewhere. Town and Veteran’s
Memorial do not intend to nor will they combine business operations under this Agreement.
13.2 Applicable Law; Venue. This Agreement shall be governed by the laws of
the State of Arizona and suit pertaining to this Agreement may be brought only in courts in
Maricopa County, Arizona.
13.3 Laws and Regulations. Veteran’s Memorial 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 Veteran’s Memorial is responsible abides by, and remains in compliance
with, all rules, regulations, ordinances, statutes or laws affecting the Services, including, but not
limited to, the following: (A) existing and future Town and County ordinances and regulations;
(B) existing and future State and Federal laws; and (C) existing and future Occupational Safety
and Health Administration standards.
13.4 Amendments. This Agreement may be modified only by a written
amendment signed by persons duly authorized to enter into contracts on behalf of the Town and
the Veteran’s Memorial.
13.5 Provisions Required by Law. Each and every provision of law and any
clause required by law to be in this Agreement will be read and enforced as though it were included
herein and, if through mistake or otherwise any such provision is not inserted, or is not correctly
inserted, then upon the application of either party, this Agreement will promptly be physically
amended to make such insertion or correction.
13.6 Severability. The provisions of this Agreement are severable to the extent
that any provision or application held to be invalid by a Court of competent jurisdiction shall not
affect any other provision or application of this Agreement which may remain in effect without
the invalid provision or application.
13.7 Entire Agreement; Interpretation; Parol Evidence. This Agreement
represents the entire agreement of the parties with respect to its subject matter, and all previous
agreements, whether oral or written, entered into prior to this Agreement are hereby revoked and
superseded by this Agreement. No representations, warranties, inducements or oral agreements
have been made by any of the parties except as expressly set forth herein, or in any other
contemporaneous written agreement executed for the purposes of carrying out the provisions of
this Agreement. This Agreement shall be construed and interpreted according to its plain meaning,
and no presumption shall be deemed to apply in favor of, or against the party drafting this
Agreement. The parties acknowledge and agree that each has had the opportunity to seek and
utilize legal counsel in the drafting of, review of, and entry into this Agreement.
13.8 Assignment; Delegation. No right or interest in this Agreement shall be
assigned or delegated by Veteran’s Memorial without prior, written permission of the Town,
signed by the Town Manager. Any attempted assignment or delegation by Veteran’s Memorial in
violation of this provision shall be a breach of this Agreement by Veteran’s Memorial.
13.9 Subcontracts. No subcontract shall be entered into by the Veteran’s
Memorial with any other party to furnish any of the material or services specified herein without
the prior written approval of the Town. The Veteran’s Memorial is responsible for performance
under this Agreement whether or not subcontractors are used. Failure to pay subcontractors in a
timely manner pursuant to any subcontract shall be a material breach of this Agreement by
Veteran’s Memorial.
13.10 Rights and Remedies. No provision in this Agreement shall be construed,
expressly or by implication, as waiver by the Town of any existing or future right and/or remedy
available by law in the event of any claim of default or breach of this Agreement. The failure of
the Town to insist upon the strict performance of any term or condition of this Agreement or to
exercise or delay the exercise of any right or remedy provided in this Agreement, or by law, or the
Town’s acceptance of and payment for services, shall not release the Veteran’s Memorial from
any responsibilities or obligations imposed by this Agreement or by law, and shall not be deemed
a waiver of any right of the Town to insist upon the strict performance of this Agreement.
13.11 Attorneys’ Fees. In the event either party brings any action for any relief,
declaratory or otherwise, arising out of this Agreement or on account of any breach or default
hereof, the prevailing party shall be entitled to receive from the other party reasonable attorneys’
fees and reasonable costs and expenses, determined by the court sitting without a jury, which shall
be deemed to have accrued on the commencement of such action and shall be enforced whether or
not such action is prosecuted through judgment.
13.12 Liens. All materials or services shall be free of all liens and, if the Town
requests, a formal release of all liens shall be delivered to the Town.
13.13 Offset.
A. Offset for Damages. In addition to all other remedies at law or
equity, the Town may offset from any money due to the Veteran’s Memorial any amounts
Veteran’s Memorial owes to the Town for damages resulting from breach or deficiencies
in performance or breach of any obligation under this Agreement.
B. Offset for Delinquent Fees or Taxes. The Town may offset from
any money due to the Veteran’s Memorial any amounts Veteran’s Memorial owes to the
Town for delinquent fees, transaction privilege taxes and property taxes, including any
interest or penalties.
13.14 Notices and Requests. Any notice or other communication required or
permitted to be given under this Agreement shall be in writing and shall be deemed to have been
duly given if (A) delivered to the party at the address set forth below, (B) deposited in the U.S.
Mail, registered or certified, return receipt requested, to the address set forth below or (C) given to
a recognized and reputable overnight delivery service, to the address set forth below:
If to the Town: Town of Fountain Hills
16705 East Avenue of the Fountains
Fountain Hills, Arizona 85268
Attn: Grady E. Miller, Town Manager
With copy to: Town of Fountain Hills
16705 East Avenue of the Fountains
Fountain Hills, Arizona 85268
Attn: Aaron D. Arnson, Town Attorney
If to Veteran’s Memorial: Fountain Hills Veteran’s Memorial, Inc.
17105 E. La Montana Dr.
Fountain Hills, Arizona 85268
Attn: Sam Coffee
or at such other address, and to the attention of such other person or officer, as any party may
designate in writing by notice duly given pursuant to this subsection. Notices shall be deemed
received (A) when delivered to the party, (B) three business days after being placed in the U.S.
Mail, properly addressed, with sufficient postage or (C) the following business day after being
given to a recognized overnight delivery service, with the person giving the notice paying all
required charges and instructing the delivery service to deliver on the following business day. If
a copy of a notice is also given to a party’s counsel or other recipient, the provisions above
governing the date on which a notice is deemed to have been received by a party shall mean and
refer to the date on which the party, and not its counsel or other recipient to which a copy of the
notice may be sent, is deemed to have received the notice.
13.15 Confidentiality of Records. The Veteran’s Memorial 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 Veteran’s Memorial’s duties under this Agreement.
Persons requesting such information should be referred to the Town. Consultant also agrees that
any information pertaining to individual persons shall not be divulged other than to employees or
officers of Consultant as needed for the performance of duties under this Agreement.
13.16 Records and Audit Rights. To ensure that the Veteran’s Memorial and its
subcontractors are complying with the warranty under subsection 13.17 below, Veteran’s
Memorial and its subcontractor’s books, records, correspondence, accounting procedures and
practices, and any other supporting evidence relating to this Agreement, including the papers of
any Veteran’s Memorial and its subcontractors’ employees who perform any work or services
pursuant to this Agreement (all of the foregoing hereinafter referred to as “Records”), shall be open
to inspection and subject to audit and/or reproduction during normal working hours by the Town,
to the extent necessary to adequately permit (A) evaluation and verification of any invoices,
payments or claims based on Veteran’s Memorial’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 Veteran’s Memorial’s and
its subcontractors’ compliance with the Arizona employer sanctions laws referenced in subsection
13.17 below. To the extent necessary for the Town to audit Records as set forth in this subsection,
Veteran’s Memorial 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 Veteran’s Memorial pursuant to this
Agreement. Veteran’s Memorial 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 Veteran’s Memorial or its subcontractors reasonable advance
notice of intended audits. Veteran’s Memorial shall require its subcontractors to comply with the
provisions of this subsection by insertion of the requirements hereof in any subcontract pursuant
to this Agreement.
13.17 E-verify Requirements. To the extent applicable under ARIZ. REV. STAT. §
41-4401, the Veteran’s Memorial 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). Veteran’s Memorial’s or its
subcontractors’ failure to comply with such warranty shall be deemed a material breach of this
Agreement and may result in the termination of this Agreement by the Town.
13.18 Israel. Veteran’s Memorial certifies that it is not currently engaged in, and
agrees for the duration of this Agreement that it will not engage in a “boycott,” as that term is
defined in ARIZ. REV. STAT. § 35-393, of Israel.
13.19 Conflicting Terms. In the event of any inconsistency, conflict or ambiguity
among the terms of this Agreement, the Proposal, and any Town-approved invoices the documents
shall govern in the order listed herein.
13.20 Non-Exclusive Contract. This Agreement is entered into with the
understanding and agreement that it is for the sole convenience of the Town. The Town reserves
the right to obtain like goods and services from another source when necessary.
[SIGNATURES APPEAR ON FOLLOWING PAGES]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
and year first set forth above.
“Town”
TOWN OF FOUNTAIN HILLS,
an Arizona municipal corporation
Grady E. Miller, Town Manager
ATTEST:
Elizabeth A. Klein, Town Clerk
APPROVED AS TO FORM:
Aaron D. Arnson, Town Attorney
[SIGNATURES CONTINUE ON FOLLOWING PAGES]
“Contractor”
____________________________________,
By:
Name:
Title:
Fountain Hills Veteran's Memorial, Inc., an Arizona non-profit 501(c)(3) corp.
Samuel D Coffee
President