HomeMy WebLinkAboutC2020-089 - Fountain Hills Veteran's Memorial, INC Contract No. 2020-089
AGREEMENT
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
FOUNTAIN HILLS VETERAN'S MEMORIAL, INC.
THIS PROFESSIONAL SERVICES AGREEMENT(this"Agreement") is entered into as
of February 24, 2020,between the Town of Fountain Hills, an Arizona municipal corporation(the
"Town") and Fountain Hills Veteran's Memorial, Inc., an Arizona nonprofit corporation
("Veteran's Memorial"), collectively referred to as the "Parties."
RECITALS
A. WHEREAS, Veteran's Memorial is a registered 501(c)(3) non-profit corporation
with access to a pool of volunteers;
B. WHEREAS,the Town will hold a liquor license for the sale of alcoholic beverages,
namely beer, at the 2020 St. Patrick's Day Festival, and a beer distributor will be donating
alcoholic beverages, namely beer, to be sold at said event; and
C. WHEREAS,the Town desires to enter into an Agreement with Veteran's Memorial
to perform the services described in Section 2 herein, in exchange for remuneration as set forth in
this Agreement to further Veteran's Memorial's charitable purposes.
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 Veteran's Memorial hereby agree as follows:
1. Purpose. The purpose of this Agreement is to articulate the rights and
responsibilities of the Parties with respect to the sale and service of alcoholic beverages, namely
beer, at the 2020 St. Patrick's Day Festival (the "Festival") to be held on March 14, 2020 and to
establish compensation for Veteran's Memorial's services.
2. Scope of Work. Veteran's Memorial shall perform the following(the"Services"):
2.1 Provide volunteer staffing to facilitate the service of alcoholic beverages for
the duration of the Festival or as otherwise agreed by the Parties;
2.2 Serve all alcoholic beverages for the duration of the Festival or as otherwise
agreed by the Parties;
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2.3 Implement and follow reasonable procedures to manage the service of
alcoholic beverages consistent with all applicable laws and regulations; and
2.4 Meet all local,county,and state alcohol service regulations and comply with
best practices for alcohol.
3. Town Responsibilities. The Town is solely responsible for accepting and
accounting for all tickets exchanged for beer at the event.Town staff are solely responsible for all
cash handling and accounting of beer sales. The Town shall hold the county alcohol permit.
4. Compensation. In exchange for providing the Services, Veteran's Memorial shall
receive 30% of all beer sale proceeds.
5. Payments. Payment shall be made in a single installment by check within a
reasonable time following the conclusion of the Festival. Payment will be accompanied by an
accounting of the proceeds.
6. Indemnification. To the fullest extent permitted by law, 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 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,
breach of contract, in connection with the work or services of Veteran's Memorial, its officers,
employees, agents, or any tier of subcontractor in the performance of this Agreement.
7. Miscellaneous.
7.1 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. 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.
7.2 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.
7.3 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
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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.
7.4 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
Veteran's Memorial.
7.5 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.
7.6 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.
7.7 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.
7.8 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.
7.9 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.
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7.10 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.
7.11 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: Pierce Coleman PLLC
4711 East Falcon Drive, Suite 111
Mesa, Arizona 85215
Attn: Aaron D. Arnson, Town Attorney
If to Veteran's Memorial: Sam Coffee
Fountain Hills Veteran's Memorial, Inc.
17105 East La Montana Drive#207
Fountain Hills,Arizona 85268
or at such other address, and to the attention of such other person or officer, as any party may
designate in writing by notice duly given pursuant to this 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.
7.12 E-verify Requirements. To the extent applicable under ARIz. REV. STAT. §
41-4401, 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.
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7.13 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.
7.14 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 Veteran's
Memorial to any other party of this Agreement with respect to the subject matter of this Agreement.
[SIGNATURES ON FOLLOWING PAGES]
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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
1•4j
Grady E. Miller, Town Manager
ATTEST:
Elizabeth . urke, Town Clerk
APPROVED AS TO FORM:
Aaron D.Xrnson, Town Attorney
(ACKNOWLEDGMENT)
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
On q'1�1 Q, eJ._ 3 , 2020, before me personally appeared Grady E. Miller, the
Town Manager of the TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation,whose
identity was proven to me on the basis of satisfactory evidence to be the person who he claims to
be,and acknowledged that he signed the above document,on behalf of the Town of Fountain Hills.
�lrd:,„ RHONDAU.BRENNEMAN (J
1 \JTh.
T�J
a emission M 889318 NotaryPublic
Expires June 30,2023
(Affix notary seal here)
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
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"Veteran's Memorial"
FOUNTAIN HILLS VETERAN'S MEMORIAL, INC.,
a(n)Arizona nonpro t c oratio
By:
Name: viici
--/2
Title: / E 57 P6) .T
(ACKNOWLEDGMENT)
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
On ,b f1/41C , 2020, before me personally appeared Sanwa] C.O he
frkeai`d--ext-k— of FOUNTAIN HILLS VETERAN'S MEMORIAL, INC., a(n) Arizona
nonprofit corporation,whose identity was proven to me on the basis of satisfactory evidence to be
the person who he claims to be, and acknowledged that he signed the above document, on behalf
of the corporation.
Notary Pu is
(Affix notary seal here)
• TANYA CASAS
_: _ Notary Public-Arizona
om. Mancopa County
4814 2732 1013 v.1 My Comm.Expires Nov 5 2021
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