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HomeMy WebLinkAboutC2023-083 - Pro Em Operations Contract No. 2023-083 PROFESSIONAL SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND PRO EM OPERATIONS, LLC THIS PROFESSIONAL SERVICES AGREEMENT (this “Agreement”) is entered into upon execution, between the Town of Fountain Hills, an Arizona municipal corporation (the “Town”) and Pro Em Operations, LLC, a(n) Delaware limited liability company (the “Vendor”). RECITALS A. The Town issued a Request for Proposals, RFP No. 2023-001 (the “RFP”), a copy of which is on file with the Town and incorporated herein by reference, seeking proposals from vendors interested in providing professional services consisting of Event Logistics, Equipment, and Related Services (the “Services”). B. The Vendor responded to the RFP by submitting a proposal (the “Proposal”), attached hereto as Exhibit A and incorporated herein by reference. C. The Town desires to enter into an Agreement with the Vendor to perform the Services, as set forth below. 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 Vendor hereby agree as follows: 1. Term of Agreement. This Agreement shall be effective as of the date first set forth above and attested by the Town Clerk pursuant to Section 3-3-31 of the Town Code, and shall remain in full force and effect until April 30, 2024 (the “Initial Term”), unless terminated as otherwise provided in this Agreement. After the expiration of the Initial Term, this Agreement may be renewed for up four successive one-year terms (the “Renewal Term”) if (i) it is deemed in the best interests of the Town, subject to availability and appropriation of funds for renewal, (ii) at least 30 days prior to the end of the then-current term of this Agreement, the Vendor requests, in writing, to extend this Agreement for an additional one-year term and (iii) the Town approves the additional one-year term in writing (including any price adjustments approved as part of this Agreement), as evidenced by the Town Manager’s signature thereon, which approval may be withheld by the Town for any reason. The Vendor’s failure to seek a renewal of this Agreement shall cause this Agreement to terminate at the end of the then-current term of this Agreement; provided, however, that the Town may, at its discretion and with the agreement of the Vendor, elect to waive this requirement and renew this Agreement. The Initial Term and the Renewal Term are collectively referred to herein as the “Term.” Upon renewal, the terms and conditions of this Agreement shall remain in full force and effect. 2. Scope of Work. This is an indefinite quantity and indefinite delivery Agreement for Services as previously set forth herein. Services shall only be provided when the Town identifies a need and proper authorization and documentation have been approved. For project(s) determined by the Town to be appropriate for this Agreement, the Vendor shall provide the Services to the Town on an as-required basis relating to the specific Services as may be agreed upon between the parties in writing, in the form of a written acknowledgment between the parties describing the Services to be provided (each, a “Work Order”). Each Work Order issued for Services pursuant to this Agreement shall be (i) in the form provided and approved by the Town for the Services, (ii) contain a reference to this Agreement and (iii) be attached to hereto as Exhibit B and incorporated herein by reference. By signing this Agreement, Vendor acknowledges and agrees that Work Order(s) containing unauthorized exceptions, conditions, limitations, or provisions in conflict with the terms of this Agreement, other than Town's project-specific requirements, are hereby expressly declared void and shall be of no force and effect. The Town does not guarantee any minimum or maximum amount of Services will be requested under this Agreement. 3. Compensation. The Town shall pay the Vendor an amount not to exceed $50,000 (including all renewals) at the rates set forth in the Fee Proposal attached hereto as Exhibit A and incorporated herein by reference. The aggregate amount per renewal term shall not exceed $50,000 in any case unless the Agreement is affirmed and ratified via an executed amendment. All remaining terms and conditions of the Agreement shall remain in full force and effect. 4. Payments. The Town shall pay the Vendor monthly (and the Vendor shall invoice the Town 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. Vendor Personnel. Vendor shall provide adequate, experienced personnel, capable of and devoted to the successful performance of the Services under this Agreement. Vendor agrees to assign specific individuals to key positions. If deemed qualified, the Vendor is encouraged to hire Town residents to fill vacant positions at all levels. Vendor 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, Vendor 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 Vendor’s performance. The Vendor shall provide and maintain a self-inspection system that is acceptable to the Town. 8. Licenses; Materials. Vendor shall maintain in current status all federal, state and local licenses and permits required for the operation of the business conducted by the Vendor. The Town has no obligation to provide Vendor, 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 Vendor. 9. Performance Warranty. Vendor 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. Mutual Indemnification. PRO EM National Event Services shall indemnify, defend, and hold CLIENT, its affiliates, and its respective directors, officers and employees harmless from and against all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorney’s fees and expenses related to the defense of any claims), arising out of the event which are attributable to the acts or omissions of PRO EM National Event Services or its employees, agents, or anyone acting under its control or direction. Indemnification by CLIENT. CLIENT shall indemnify, defend, and hold PRO EM National Event Services, its affiliates, and their respective directors, officers and employees harmless from and against all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses related to the defense of any claims), arising out of the event which are attributable to the acts or omissions of CLIENT or its employees, agents, or anyone acting under its control or direction. 11. Insurance. 11.1 General. A. Insurer Qualifications. Without limiting any obligations or liabilities of Vendor, Vendor 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 Vendor. 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 Vendor 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, except Workers’ Compensation insurance and Professional Liability insurance, if applicable, shall name, to the fullest extent permitted by law for claims arising out of the performance of this Agreement, the Town, its agents, representatives, officers, directors, officials and employees as Additional Insured as specified under the respective coverage sections of this Agreement. D. Coverage Term. All insurance required herein shall be maintained in full force and effect until all work or services required to be performed under the terms of this Agreement are satisfactorily performed, completed and formally accepted by the Town, unless specified otherwise in this Agreement. E. Primary Insurance. Vendor’s insurance shall be primary insurance with respect to performance of this Agreement and in the protection of the Town as an Additional Insured. Intentionally omitted. F. Claims Made. In the event any insurance policies required by this Agreement are written on a “claims made” basis, coverage shall extend, either by keeping coverage in force or purchasing an extended reporting option, for three years past completion and acceptance of the services. Such continuing coverage shall be evidenced by submission of annual Certificates of Insurance citing applicable coverage is in force and contains the provisions as required herein for the three-year period. G. Waiver. All policies, except 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 Vendor. Vendor shall arrange to have such subrogation waivers incorporated into each policy via formal written endorsement thereto. H. Policy Deductibles and/or Self-Insured Retentions. The policies set forth in these requirements may provide coverage that contains deductibles or self-insured retention amounts. Such deductibles or self-insured retention shall not be applicable with respect to the policy limits provided to the Town. Vendor shall be solely responsible for any such deductible or self-insured retention amount. I. Use of Subcontractors. If any work under this Agreement is subcontracted in any way, Vendor shall execute written agreements with its subcontractors containing the indemnification provisions set forth in this Agreement and insurance requirements set forth herein protecting the Town and Vendor. Vendor shall be responsible for executing any agreements with its subcontractors and obtaining certificates of insurance verifying the insurance requirements. J. Evidence of Insurance. Prior to commencing any work or services under this Agreement, Vendor 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 Vendor’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. If any of the policies required by this Agreement expire during the life of this Agreement, it shall be Vendor’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 the RFP number and title or this Agreement. A $25.00 administrative fee shall be assessed for all certificates or declarations received without the appropriate RFP number and title or a reference to this Agreement, as applicable. Additionally, certificates of insurance and declaration page(s) of the insurance policies submitted without referencing the appropriate RFP number and title or a reference to this Agreement, as applicable, 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) Vendor’s insurance shall be primary insurance with respect to performance of this 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 Vendor under this Agreement. (4) ACORD certificate of insurance form 25 (2014/01) is preferred. If ACORD certificate of insurance form 25 (2001/08) 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. 11.2 Required Insurance Coverage. A. Commercial General Liability. Vendor shall maintain “occurrence” form Commercial General Liability insurance with an unimpaired limit of not less than $1,000,000 for each occurrence, $2,000,000 Products and Completed Operations Annual Aggregate and a $2,000,000 General Aggregate Limit. The policy shall cover liability arising from premises, operations, independent contractors, products-completed operations, personal injury and advertising injury. Coverage under the policy will be at least as broad as ISO policy form CG 00 010 93 or equivalent thereof, including but not limited to, separation of insured’s clause. To the fullest extent allowed by law, for claims arising out of the performance of this Agreement, the Town, its agents, representatives, officers, officials and employees shall be cited as an Additional Insured under ISO, Commercial General Liability Additional Insured Endorsement form CG 20 10 03 97, or equivalent, which shall read “Who is an Insured (Section II) is amended to include as an insured the person or organization shown in the Schedule, but only with respect to liability arising out of “your work” for that insured by or for you.” If any Excess insurance is utilized to fulfill the requirements of this subsection, such Excess insurance shall be “follow form” equal or broader in coverage scope than underlying insurance. B. Vehicle Liability. Vendor shall maintain Business Automobile Liability insurance with a limit of $1,000,000 each occurrence on Vendor’s owned, hired and non-owned vehicles assigned to or used in the performance of the Vendor’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 Vendor engages in any professional services or work in any way related to performing the work under this Agreement, the Vendor shall maintain Professional Liability insurance covering negligent errors and omissions arising out of the Services performed by the Vendor, or anyone employed by the Vendor, or anyone for whose negligent acts, mistakes, errors and omissions the Vendor is legally liable, with an unimpaired liability insurance limit of $2,000,000 each claim and $2,000,000 annual aggregate. D. Workers’ Compensation Insurance. Vendor shall maintain Workers’ Compensation insurance to cover obligations imposed by federal and state statutes having jurisdiction over Vendor’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. 11.3 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. 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 Vendor of written notice by the Town. Upon termination for convenience, Vendor 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 Vendor 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 Vendor 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 Vendor 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 Vendor 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 Vendor, 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 Vendor or any agent or representative of the Vendor 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 Vendor 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 Vendor 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 Vendor 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. The Vendor 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. Vendor, 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 Vendor, its employees or subcontractors. The Vendor, and not the Town, shall determine the time of its performance of the services provided under this Agreement so long as Vendor meets the requirements as agreed in Section 2 above and in Exhibit A. Vendor is neither prohibited from entering into other contracts nor prohibited from practicing its profession elsewhere. Town and Vendor 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. Vendor 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 Vendor 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 Vendor. 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 Vendor without prior, written permission of the Town, signed by the Town Manager. Any attempted assignment or delegation by Vendor in violation of this provision shall be a breach of this Agreement by Vendor. 13.9 Subcontracts. No subcontract shall be entered into by the Vendor with any other party to furnish any of the material or services specified herein without the prior written approval of the Town. The Vendor 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 Vendor. 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 Vendor 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 Vendor any amounts Vendor owes to the Town for damages resulting from breach or deficiencies in performance or breach of any obligation under this Agreement. Intentionally omitted. B. Offset for Delinquent Fees or Taxes. The Town may offset from any money due to the Vendor any amounts Vendor owes to the Town for delinquent fees, transaction privilege taxes and property taxes, including any interest or penalties. Intentionally omitted. 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 Vendor: Pro Em Operations, LLC 1450 E. Grant St. Phoenix, Arizona 85034 Attn: Brent Mabb 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 Vendor 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 Vendor’s duties under this Agreement. Persons requesting such information should be referred to the Town. Vendor also agrees that any information pertaining to individual persons shall not be divulged other than to employees or officers of Vendor as needed for the performance of duties under this Agreement. 13.16 Records and Audit Rights. To ensure that the Vendor and its subcontractors are complying with the warranty under subsection 13.17 below, Vendor’s and its subcontractor’s books, records, correspondence, accounting procedures and practices, and any other supporting evidence relating to this Agreement, including the papers of any Vendor 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 Vendor’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 Vendor’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, Vendor 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 Vendor pursuant to this Agreement. Vendor 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 Vendor or its subcontractors reasonable advance notice of intended audits. Vendor 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 Vendor 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). Vendor’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. Vendor 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 China. Pursuant to and in compliance with A.R.S. § 35-394, Vendor hereby agrees and certifies that it does not currently, and agrees for the duration of this Agreement that Vendor will not, use: (1) the forced labor of ethnic Uyghurs in the People’s Republic of China; (2) any goods or services produced by the forced labor of ethnic Uyghurs in the People’s Republic of China; or (3) any contractors, subcontractors or suppliers that use the forced labor or any goods or services produced by the forced labor of ethnic Uyghurs in the People’s Republic of China. Vendor also hereby agrees to indemnify and hold harmless the Town, its officials, employees, and agents from any claims or causes of action relating to the Town’s action based upon reliance upon this representation, including the payment of all costs and attorney fees incurred by the Town in defending such as action. 13.20 Conflicting Terms. In the event of any inconsistency, conflict or ambiguity among the terms of this Agreement, the Proposal, any Town-approved invoices, and the RFP, the documents shall govern in the order listed herein. 13.21 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. 13.22 Cooperative Purchasing. Specific eligible political subdivisions and nonprofit educational or public health institutions (“Eligible Procurement Unit(s)”) are permitted to utilize procurement agreements developed by the Town, at their discretion and with the agreement of the awarded Consultant. Consultant may, at its sole discretion, accept orders from Eligible Procurement Unit(s) for the purchase of the Materials and/or Services at the prices and under the terms and conditions of this Agreement, in such quantities and configurations as may be agreed upon between the parties. All cooperative procurements under this Agreement shall be transacted solely between the requesting Eligible Procurement Unit and Consultant. Payment for such purchases will be the sole responsibility of the Eligible Procurement Unit. The exercise of any rights, responsibilities or remedies by the Eligible Procurement Unit shall be the exclusive obligation of such unit. The Town assumes no responsibility for payment, performance or any liability or obligation associated with any cooperative procurement under this Agreement. The Town shall not be responsible for any disputes arising out of transactions made by others. [SIGNATURES ON FOLLOWING PAGES] 7 ATTESTED TO: _______________________________ Linda G. Mendenhall, Town Clerk APPROVED AS TO FORM: ________________________________ Aaron D. Arnson, Town Attorney ____________________________________ Rachael Goodwin, Interim Town Manager “Town” TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation FOR THE CONTRACTOR: __________________________ By: _______________________ Name:_____________________ Title: ______________________ Pro Em Operations, LLC, a(n) Delaware limited liability company Brent Mabb (Apr 18, 2023 13:57 PDT) Brent Mabb Account Manager Brent Mabb Aaron Arnson (Apr 19, 2023 14:44 PDT) Aaron Arnson Rachael Goodwin (Apr 24, 2023 07:55 PDT) Rachael Goodwin EXHIBIT A TO PROFESSIONAL SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND PRO EM OPERATIONS, LLC [Consultant’s Proposal] See following pages. Town of Fountain Hills Admin-Procurement Robert Durham, Procurement Officer 16705 E. Avenue of the Fountains, Fountain Hills, AZ 85268 PROPOSAL DOCUMENT REPORT RFP No. RFP-2023-001 Event Logistics, Equipment, and Related Services RESPONSE DEADLINE: March 30, 2023 at 5:00 pm Report Generated: Thursday, April 13, 2023 PRO EM OPERATIONS, LLC Proposal CONTACT INFORMATION Company: PRO EM OPERATIONS, LLC Email: brent@proem.org Contact: Brent Mabb Address: 1450 East Grant Street Phoenix, AZ 85034 Phone: (602) 828-1094 Website: www.proem.org Submission Date: Mar 30, 2023 3:46 PM PROPOSAL DOCUMENT REPORT RFP No. RFP-2023-001 Event Logistics, Equipment, and Related Services PROPOSAL DOCUMENT REPORT Request for Proposals - Event Logistics, Equipment, and Related Services Page 2 ADDENDA CONFIRMATION No addenda issued QUESTIONNAIRE 1. Certification By confirming questions under this section, the Vendor certifies: NO COLLUSION* The submission of the Proposal did not involve collusion or other anti-competitive practices. Confirmed NO DISCRIMINATION* It shall not discriminate against any employee or applicant for employment in violation of Federal Executive Order 11246. Confirmed NO GRATUITY* It has not given, offered to give, nor intends to give at any time hereafter, any economic opportunity, future employment, gi ft, loan, gratuity, special discount, trip favor or service to a Town employee, officer or agent in connection with the submitted Proposal. It (including the Vendor’s employees, representatives, agents, lobbyists, attorneys, and subcontractors) has refrained, under penalty of disqualification, from direct or indirect contact for the purpose of influencing the selection or creating bias in the selection process with any person who may play a part in the selection process, including the Selection Committee, elected officials, the Town Manager, Assistant Town Managers, Department Heads, and other Town staff. All contact must be addressed to the Town’s Procurement Agent, except for questions submitted as set forth in Subsection 1.4 (Inquiries), above. Any attempt to influence the selection proc ess by any means shall void the submitted Proposal and any resulting Agreement. PROPOSAL DOCUMENT REPORT RFP No. RFP-2023-001 Event Logistics, Equipment, and Related Services PROPOSAL DOCUMENT REPORT Request for Proposals - Event Logistics, Equipment, and Related Services Page 3 Confirmed FINANCIAL STABILITY* It is financially stable, solvent and has adequate cash reserves to meet all financial obligations including any potential co sts resulting from an award of the Agreement. Confirmed NO SIGNATURE/FALSE OR MISLEADING STATEMENT* The signature on the cover letter of the Proposal and the Vendor Information Form is genuine and the person signing has the authority to bind the Vendor. Failure to sign the Proposal and the Vendor Information Form, or signing either with a false or misleading statement, shall void the submitted Proposal and any resulting Agreement. Confirmed PROFESSIONAL SERVICES AGREEMENT* In addition to reviewing and understanding the submittal requirements, it has reviewed the attached sample Professional Services Agreement including the Scope of Work and other Exhibits. Confirmed REFERENCE CHECKS* References will be checked, and it is Vendor’s responsibility to ensure that all information is accurate and current. Vendor authorizes the Town’s representative to verify all information from these references and releases all those concerned from any liability in connection with the information they provide. Inability of the Town to verify references shall result in the Proposal being c onsidered non-responsive. Confirmed PROPOSAL DOCUMENT REPORT RFP No. RFP-2023-001 Event Logistics, Equipment, and Related Services PROPOSAL DOCUMENT REPORT Request for Proposals - Event Logistics, Equipment, and Related Services Page 4 2. Vendor Proposal GENERAL INFORMATION* A. One page cover letter as described in the section titled "RFP Submission Process", the subsection titled "Required Submittal". B. Provide Vendor identification information. Explain the Vendor’s legal organization including the legal name, address, identification number and legal form of the Vendor (e.g., partnership, corporation, joint venture, limited liability company, sole proprietorship). If a joint venture, identify the members of the joint venture and provide all of the information required under this section for each member. If a limited liability company, provide the name of the member or members authorized to act on the company’s behalf. If the Vendor is a wholly owned subsidiary of another company, identify the parent company. If the corporation is a nonprofit corporation, provide nonprofit documentation. Provide the name, address and telephone number of the person to contact concerning the Proposal. C. Identify the location of the Vendor’s principal office and the local work office, if different. Include any documentation tha t supports the Vendor’s authority to provide services in Arizona. D. Provide a general description of the Vendor’s organization, including years in business. E. Identify any contract or subcontract held by the Vendor or officers of the Vendor that have been terminated within the last five years. Briefly describe the circumstances and the outcome. F. Identify any claims arising from a contract which resulted in litigation or arbitration within the last five years. Briefly describe the circumstances and the outcome. Town_of_Fountain_Hills_RFP_2023_2.1_General_Information.pdf EXPERIENCE AND QUALIFICATIONS OF THE VENDOR* Provide a detailed description of the Vendor’s experience in providing similar services to municipalities or other entities of a similar size to the Town, specifically relating experience with respect to Event Logistics, Equipment, and Related Services. A. Vendor must demonstrate successful completion of at least three similar projects within the past 60 months. For the purpose of this Solicitation, “successful completion” means completion of a project within the established schedule and budget and PROPOSAL DOCUMENT REPORT RFP No. RFP-2023-001 Event Logistics, Equipment, and Related Services PROPOSAL DOCUMENT REPORT Request for Proposals - Event Logistics, Equipment, and Related Services Page 5 “similar projects” resemble this project in size, nature and scope. Provide a list of at least three organizations for which you successfully completed a similar project. This list shall include, at a minimum, the following information: 1. Name of company or organization. 2. Contact name. 3. Contact address, telephone number and e-mail address. 4. Type of services provided. 5. Dates of contract initiation and expiration. Town_of_Fountain_Hills_RFP_2023_2.2_Experience_and_Qualifications_of_the_Vendor.pdf KEY POSITIONS* A. Identify each key personnel member that will render services to the Town including title and relevant experience required, including the proposed project manager and project staff. B. Indicate the roles and responsibilities of each key position. Include senior members of the Vendor only from the perspective of what their role will be in providing services to the Town. C. If a subcontractor will be used for all work of a certain type, include information on this subcontractor. A detailed plan for providing supervision must be included. D. Attach a résumé and evidence of certification, if any, for each key personnel member and/or subcontractor to be involved in this project. Résumés should be attached together as a single appendix at the end of the Proposal and will not count toward the Proposal page limit. However, each resume shall not exceed two pages in length. Town_of_Fountain_Hills_RFP_2023_2.3_Key_Positions.pdf PROJECT APPROACH* A. Describe the Vendor’s approach to performing the required Services in the section titled Scope of Work, and its approach to contract management, including its perspective and experience on partnering, customer service, quality control, scheduling and staff. PROPOSAL DOCUMENT REPORT RFP No. RFP-2023-001 Event Logistics, Equipment, and Related Services PROPOSAL DOCUMENT REPORT Request for Proposals - Event Logistics, Equipment, and Related Services Page 6 B. Describe any alternate approaches if it is believed that such an approach would best suit the needs of the Town. Include rationale for alternate approaches, and indicate how the Vendor will ensure that all efforts are coordinated with the Town’s Representatives. Town_of_Fountain_Hills_RFP_2023_2.4_Project_Approach.pdf PRICING* Town_of_Fountain_Hills_RFP_2023_2.5_Pricing.pdf W-9 PROEM_W-9_-_2023.pdf Experience and Qualifications Arizona State University: PRO EM has been working with ASU for the past thirty plus (30+) years providing staffing and equipment services for Sun Devil Athletics and Arizona State University Departments. During this time, our commitment and service has grown as we continue to provide additional services and meet the staffing and equipment needs of a dynamically growing University. The history between PRO EM and Arizona State University eliminates the learning curve required to pro- vide services for future seasons and events as well as provides the opportunity to continue building and improving the experience of being an Arizona State Sun Devil. PRO EM has demonstrated its ability to provide equipment and staffing throughout the campuses for various events such as, but not limited to, Gamage Auditorium productions, student move in/out, ASU Athletic games, and many more. Reference: JD Loudabarger – Associate AD/Operations & Facilities P.O. Box 872505 Tempe, AZ 85287 Jd.loudabarger@asu.edu Waste Management Phoenix Open (The Thunderbirds): PRO EM has been a partner of the Waste Management Phoenix Open for over 35 years. Through this history we have designed, developed and delivered an increasingly compelling event that has become one of the largest tournaments in the world. PRO EM has a deep-seated involvement in all aspects of the WM Phoenix Open: from the logistics of the site build through the planning of transportation and the daily staffing of the event. We are proud to work in con- cert with the Thunderbirds, PGA, 3rd party vendors, the City of Scottsdale, Law Enforcement, and first responders to ensure a superior patron experience consistent with the client's expecta- tion and budget. PRO EM provides the knowledge & experience coupled with equipment in- ventory and personnel to successfully adapt and implement a successful live event. Reference: Chance Cozby – Executive Director 7226 N. 16th St. Suite 100 Phoenix, AZ 85020 ccozby@wmphoenixopen.com City of Surprise: City of Surprise has utilized PRO EM’s services since 2014. We have worked alongside the city to support their event needs with many annual events such as Spring Training Baseball, Sur- prise Party, Tennis CTCA Championship, Fiesta Grande, Sunday in the Park, 4th of July, and many more. PRO EM works closely with city planners to execute events of all sizes, leaning on our expertise to make suggestions of equipment, managing timelines, and working within budg- ets to make their visions come to life. Our vast inventory is on full display at their events where tents, generators, staging, fencing, lighting, restrooms, tables, chairs, linens, event staffing, parking, security, and many other items are utilized, providing a one stop event experience. Reference: Steve Castillo – Recreation Coordinator 15960 N. Bullard Ave Surprise, AZ 85374 Steve.castillo@surpriseaz.gov Key Positions Brent Mabb • Account Executive Brent Mabb has been with PRO EM for 29 years and has vast experience in the event industry. As an account executive, he has his hands in every aspect of the event from quote to execution. He specializes in event rentals and staffing with an emphasis on high level consulting and plan- ning. Brent's hands-on approach to planning and “day of” details has made him an essential part of our PRO EM Team. Brent has worked on many large scale and high-profile events with cli- ents such as Ironman, Pat’s Run, Heard Museum, Arizona Aloha Festival and The Fountain Hills Chamber of Commerce. Victoria “Tora” Crawford • Sr. VP of Administration Tora Crawford joined the PRO EM team in January 2007 and wears many hats for the company as she directs the Human Resources team, the Information Technology team, and the legal and facilities functions across PRO EM’s multi-state companies. Her responsibilities include PRO EM’s sustainability programs, workplace safety, regulatory compliance, quality assurance, and customer satisfaction. Tora holds a Bachelor of Science degree in Administration of Justice from Portland State University in Portland, Oregon, where she also played college basketball for the Lady Vikings. Brady Castro • Principal Brady Castro is the Principal of PRO EM National Event Services. He is responsible for the management and development of existing as well as new strategic accounts for the consolidated organization. His career in special events began while attending college, working concerts and basketball games at the Southern Illinois University Arena in Carbondale. He started with PRO EM doing part-time event parking and security. Brady was offered a full-time position at PRO EM in 1999 and was eventually promoted to event supervisor, director of security, and then out- side sales. Today, he serves as Principal of the Phoenix location, instrumental in guiding the company’s strategic vision and expansion. During his professional career, he has been fortunate to work on projects including Arizona State University Sun Devil Athletics, the Chicago Cubs Spring Training, the Waste Management Phoenix Open (PGA), Solheim Cup (LPGA), Tostito’s Fiesta Bowl, Winter Olympics, MLB All-Star Game, NBA All-Star Weekend, Muhammad Ali’s Celebrity Fight Night as well as events with Presidents Bill Clinton, George W. Bush, and Barack Obama. Brady is a native of Rockton, Illinois and an avid sports fan. He enjoys hiking, golfing, cooking, reading, and traveling. Project Approach PRO EM is a full-service event management and rental company, with the aegis of a large ros- ter of employees, a deep inventory of rental products, and an unparalleled level of event man- agement experience. PRO EM is singularly positioned to meet and exceed the deliverables for all aspects of services. Our services encompass event management and consulting, security guards, parking, and guest service representatives, as well as our own complete rental division featuring tents and structures, portable generators, light towers, fencing, barricades, tables, chairs, portable restrooms, and other event related equipment. At PRO EM, we have organized an inclusive leadership team with an understanding of the essential needs of the event industry and the support and thoroughness to deliver the results the Town of Fountain Hills is seeking. PRO EM's commitment to excellence is reflected in quality service to a myriad of events annu- ally: national and local sporting events, cultural venues, concerts, festivals, corporate meetings as well as weddings and social gatherings of all sizes. PRO EM is honored to have millions pa- trons attend our events each year. PRO EM demonstrates a strong future with growth due to multi-year contracts held with strong financially stable corporations, including Arizona State University and The Thunderbirds. We have demonstrated the ability to offset risks through its dynamic and versatile services, which has allowed PRO EM to continue to develop and grow. Part of that growth comes from our strong commitment to training and safety. In addition to robust on-boarding and orientation, PRO EM supports an ongoing series of training classes in- cluding a full Department of Public Safety Guard Card class offered in-house. PRO EM views training as a life-long practice and focuses heavily in creating an educational environment that encourages questions, role-playing, real life scenario usage, and adjusts to changes in demo- graphic, type of event, and specific needs of the client. We have adopted safety procedures in our initial and concurrent training schedules and constantly update our program to maintain in- dustry relevance and OSHA compliance. PRO EM has an extensive local equipment inventory, supplemented by product at our other stores nationally, with capable managerial staff in each equipment department from canvas and tents to parking and security, who oversee safety in ad- dition to quality, quantity, and availability. PRO EM will operate in partnership with the variety of departments to ensure all set up are compliant to applicable federal, state, and local regula- tions. PRO EM thoroughly understands the full scope required to be available for the RFP for the Town of Fountain Hills, and has a dedicated team in place in order to execute the events in which it entails. We have personnel available 24/7 to help enable the visions of the Town of Fountain Hills events including full time staff, experienced managers, and over 500 associate employees to make all of the events we take part in a success. Item Name Daily Rate Line-Item Comments 10' x 10' x 8' Aztec Festival Frame Tent 170.10 10' x 20' x 8' Aztec Festival Frame Tent 340.20 20' x 20' x 8' Aztec Festival Frame Tent 486.00 20' x 40' x 8' Aztec Festival Frame Tent 972.00 30' x 40' x 8' Aztec Standard Frame Tent 1,458.00 30' x 60' x 8' Aztec Standard Frame Tent 2,187.00 30' x 80' x 8' Aztec Standard Frame Tent 2,916.00 40' x 40' x 8' Aztec Standard Frame Tent 1,944.00 40' x 60' x 8' Aztec Standard Frame Tent 2,916.00 40' x 80' x 8' Aztec Standard Frame Tent 3,888.00 40' x 100' x 8' Aztec Standard Frame Tent 4,860.00 (AZT) Standard Sidewall Solid White 8' - Tent Wall 48.60 > 20' tent wall (AZT) Standard Sidewall Solid White 8' - Tent Wall 34.02 > 10' tent wall 700 lb. Block & Roll Concrete Block 85.54 >> COST PER TENT WEIGHT 1900 lb. Concrete Block (2' x 3' x 2') 218.70 >> COST PER TENT WEIGHT Sand Bag - Tenting 10.00 >> COST PER TENT WEIGHT Fire Safety Package 112.50 > Lighted Exit, No Smoking Sign and Extinguisher Highbay Tent Light 150.00 Quartz LED Tent Light 50.00 Bistro/Portofino String Lighting- per 48' Strand 130.00 AstroTurf - Green or Black - Cost per square foot 1.30 Pipe & Drape 8' tall or 3' tall cost per foot 7.50 > Black or Blue drape Extension Cord - 50' 29.00 Ecology ADA Portable Toilet 325.00 Ecology Purple Portable Toilet 250.00 Ecology Service Per Unit Portable Toilet 45.00 > COST TO PUMP/CLEAN/RESTOCK TOILET - PLUS ADD $500 DELIVERY FEE Table Banquet 8' 13.85 Table Banquet 6' 12.88 Table Round 30" High 42" Tall Table 16.04 Table Round 30" High 30" Standard Height Table 12.15 Table Round 60" 14.58 Chair Polyfold White 1.60 Modular chair - Sofa section- White 350.00 Linen- 90x156 25.90 Linen- 90x132 24.35 Linen- 120" round 23.00 Linen - 132" round 25.00 Item Name Daily Rate Line-Item Comments Plastic Fitted Table Cover 8.00 Table Set-Up & Take Down 4.32 > Per Table Chair Set-Up & Take Down 2.16 > Per Chair Linen Set-Up per Linen 2.55 Traffic, Vertical Panel 3.74 Generator 20 KW 125.92 > Fuel not included Generator 36 KW 183.12 > Fuel not included Light Tower Generated 150.00 > Fuel not included Fuel - Current Market Rate 10.31 > Fuel Cost Subject to marked variations Stage Dressed 16" Tall - w/ Step, Skirting & Black Turf 64.00 > Per 4' x 4' Stage Section Stage Dressed 24" Tall - w/ Step, Skirting & Black Turf 64.00 > Per 4' x 4' Stage Section Fence Lattice 8'x42" Plastic 36.89 Fence Chain Link Per Foot Event 1.45 Fence Bike Barricade 8' 21.38 Delivery & Pick-up 250.00 > Cost of delivery per truck load of equipment Ecology Delivery & Pick-up 700.00 > Cost per truck load Delivery - After Hours 750.00 > ADDED COST FOR AFTER HOUR Pickup - After Hours 750.00 > ADDED COST FOR AFTER HOUR Specified Time Delivery Charge 250.00 > ADDED COST FOR SPECIFIED TIME Specified Time Pickup Charge 250.00 > ADDED COST FOR SPECIFIED TIME Forklift - 5K Warehouse 950.00 > forklift required when ordering tent weights Security Positions Supervisor Security Guard 42.80 > Per hour - 4 hour minimum shift Daytime Security Guard 31.03 > Per hour - 4 hour minimum shift Overnight Security Guard 34.24 > Per hour - 4 hour minimum shift IDV - Liquor Control Security Guard 34.24 > Per hour - 4 hour minimum shift * All pricing is based on one day rental. * Multi Day rates * Tents/Canopies 1.25x Rate per week * Tables & Chairs 2x Rate per week * Generators, Light Towers 8-hour shift per day, 3x rate per week * Security holiday rate x1.5 EXHIBIT B TO PROFESSIONAL SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND PRO EM OPERATIONS, LLC [Quote or Work Order] See following pages.