Exhibit_A_Professional_Service_Agreement.pdf

PROFESSIONAL SERVICES AGREEMENT

This Professional Services Agreement (“Agreement”) is made and entered into on this _____ day of ______________, 20__ (“Effective Date”) by and between the Town of Cave Creek, Arizona, an Arizona municipal corporation (“TOWN”) and _________________ (“CONSULTANT”).

RECITALS

A. TOWN intends to undertake a project for the benefit of the public and with public funds;

B. TOWN desires to retain the professional services of CONSULTANT to perform certain services and produce the specific work as set forth in Exhibit A (“Scope of Work”);

C. CONSULTANT desires to provide TOWN with professional services (“Services”) to accomplish the Scope of Work consistent with consulting or other professional practices and the standards set forth in this Agreement, in order to complete the Project; and

D. TOWN and CONSULTANT desire to memorialize their agreement with this document.

AGREEMENT

The parties agree as follows:

1. SCOPE OF WORK.

A. Scope of Work. The CONSULTANT agrees to perform certain professional services for TOWN, in connection with ________________________ (the “Project”) as set forth in the Scope of Work attached hereto and incorporated by this reference. The services include any and all services reasonably contemplated, normally included, and necessary to complete the Scope of Work in a professional manner with due diligence and in a timely manner, including working closely with TOWN and its designated employees.

CONSULTANT shall perform the services required by, and as outlined in, Exhibit A to the satisfaction of TOWN, exercising that degree of care, skill, diligence and judgment ordinarily exercised, under similar circumstances, by reputable members of its profession in the same locality at the time the services are provided.

B. Change in Scope of Work. If deemed necessary by TOWN, CONSULTANT and TOWN will confer to further define specific tasks in the Scope of Work and estimate the amount of time to be spent on those tasks. Any work that is different from or in addition to the work specified shall constitute a change in the Scope of Work. No such change, including any additional compensation, shall be effective or paid unless authorized by written amendment executed by the Town Manager and by CONSULTANT. If CONSULTANT proceeds without such written authorization, CONSULTANT shall be deemed to have waived any claims of unjust enrichment, quantum meruit or implied contract. Except as expressly provided herein, no agent, employee or representative of TOWN shall have the authority to enter into any changes or modifications, either directly or implied by a course of action, relating to the terms and scope of this Agreement.

C. Inspection; Acceptance. All work and Services performed by CONSULTANT will be subject to inspection and acceptance by TOWN at reasonable times during CONSULTANT’s performance. If requested by TOWN, CONSULTANT will provide TOWN with record drawings at the completion of the Project in such form and detail as TOWN may require.

D. Time. Time is of the essence for this Agreement. CONSULTANT shall complete all Services timely, efficiently and in accordance with any schedule set forth in Exhibit A.

E. Corrections. CONSULTANT shall promptly provide, at no additional cost to TOWN, any and all corrections, modifications, additional documents, or other items that may be necessary to correct any errors and/or omissions in the work, Services, documents, designs, specification, and/or drawings by CONSULTANT.

F. Key Personnel. CONSULTANT shall utilize the key personnel, if any, listed in Exhibit A or in the proposal to TOWN. CONSULTANT shall not change key personnel, , or utilize any other personnel to serve as key personnel without the prior written approval of TOWN. Any substituted personnel shall have the same or higher qualifications as the personnel being replaced.

2. COMPENSATION; BILLING.

A. Compensation. TOWN agrees to pay CONSULTANT as compensation for Services on a time and materials basis in accordance with the Scope of Work and fee schedule set forth in Exhibit A not to exceed a total amount of $__________. Except as otherwise set forth in this Agreement, billing and payment will be in accordance with the conditions set forth in Exhibit A.

B. Payment. Prior to commencement of any work, the CONSULTANT must provide the TOWN with a current Internal Revenue Service (I.R.S.) Form W-9, Request for Taxpayer Identification Number and Certification. Unless otherwise agreed to by TOWN in writing, CONSULTANT will submit monthly invoices to the TOWN to the attention of Accounts Payable or finance@cavecreekaz.gov. TOWN will process and remit payment within thirty (30) days for work performed in accordance with the Scope of Work and this Agreement. Payment will be delinquent only thirty (30) days after the date the invoice is received by TOWN. Each invoice shall set forth a general description of the work performed, in accordance with the Scope of Work, for the hours billed. Payment may be subject to or conditioned upon TOWN’s receipt of unconditional waivers and releases on final payment from all subconsultants. If a dispute over payment arises, and during all claims resolution proceedings, CONSULTANT shall continue to render the Services in a timely manner. Payment by TOWN does not constitute acceptance by TOWN of the Services or CONSULTANT’s performance, nor does payment constitute a waiver of any rights or claims by TOWN.

C. Expenses. Any fee required by any governmental agency in order for CONSULTANT to accomplish a task hereunder shall be provided by TOWN and is not included in the hourly fee, except for any fee payable by CONSULTANT for any license or other governmental approval authorizing the CONSULTANT to provide the Services. No reimbursable expenses or costs of any kind shall be paid by TOWN unless expressly approved by TOWN in writing before they are incurred. Any approved reimbursable expenses will be paid at the actual cost without any markup and will be paid only after they are incurred.

D. Taxes. CONSULTANT shall be solely responsible for any and all tax obligations which may result out of the CONSULTANT’s performance of this Agreement. TOWN shall have no obligation to pay any amounts for taxes, of any type, incurred by

CONSULTANT.

3. OWNERSHIP OF DOCUMENTS. All documents, including, but not limited to, correspondence, estimates, notes, recommendations, analyses, reports, data and studies that are prepared in the performance of this Agreement are to be, and shall remain, the property of TOWN and are to be delivered to TOWN before the final payment is made to the CONSULTANT. CONSULTANT hereby grants to TOWN an irrevocable, exclusive, royalty-free perpetual license to reproduce and use any and all data, documents (including electronic documents and files), designs, drawings and specifications prepared or furnished by CONSULTANT pursuant to this Agreement. Any modifications made by TOWN to any of the CONSULTANT’s documents, or any use, partial use or reuse of the documents without written authorization or adaptation by the CONSULTANT will be at TOWN’s sole risk and without liability to the CONSULTANT.

4. PROFESSIONAL RESPONSIBILITY. CONSULTANT hereby warrants that it is qualified to assume the responsibilities and render the Services described herein and has all requisite corporate authority and professional licenses in good standing, required by law.

CONSULTANT warrants that the Services rendered will conform to the requirements of this Agreement and to the professional standards applicable to the Project. TOWN has no obligation to provide CONSULTANT any business registrations, licenses, tools, equipment or material required to perform the Scope of Work.

5. COMPLIANCE WITH LAW. It is contemplated that the work and Services to be performed by CONSULTANT hereunder shall be done in compliance with applicable laws, ordinances, rules and regulations that are in effect on the date of this Agreement. Any subsequent changes in applicable laws, ordinances, rules or regulations that necessitate additional work shall constitute a change in the Scope of Work. Each and every provision of law and any clause required by law to be in the Agreement will be read and enforced as though it were included.

6. INDEMNIFICATION. To the fullest extent permitted by law, CONSULTANT will indemnify, defend and hold harmless TOWN, and each council member, officers, boards, commissions, officials, employee or agent thereof (collectively 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”) to the extent that such Claims (or actions in respect thereof) relate to, arise out of, or are caused by, or in connection with the negligent acts or omissions, recklessness or intentional misconduct of CONSULTANT, its officers, employees, agents or any tier of subcontractor in connection with CONSULTANT’s work or Services 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.

7. INSURANCE.

A. General:

1. CONSULTANT agrees to procure and maintain in force during the term of this Agreement, at its own cost, the following coverages and as may be requested by TOWN, either in the initial bid, or prior to commencement of particular tasks.

CONSULTANT shall submit to TOWN before any work is performed, certificates from the CONSULTANT’s insurance carriers indicating the presence of coverages and limits of liability as follows:

2. Worker's Compensation Insurance:

Coverage A: Statutory benefits as required by the Labor Code of the State of Arizona.

Coverage B: Employer’s Liability Bodily Injury by accident $1,000,000 each accident Bodily Injury by disease $1,000,000 policy limit Bodily Injury by disease $1,000,000 each employee

3. Commercial General or Business Liability Insurance with minimum combined single limits of ONE MILLION DOLLARS ($1,000,000.00) each occurrence and TWO MILLION DOLLARS ($2,000,000.00) general aggregate.

4. Automobile Liability Insurance with minimum combined single limits for bodily injury and property damage of not less than ONE MILLION DOLLARS ($1,000,000.00) for any one occurrence, with respect to each of the CONSULTANT’s owned, hired or non-owned automobiles assigned to or used in performance of the Services. Certificate to reflect coverage for “Any Auto, All Owned, Scheduled, Hired or Non-Owned.”

5. Professional Liability coverage with minimum limits of ONE MILLION DOLLARS ($1,000,000.00) each claim and TWO MILLION DOLLARS ($2,000,000.00) general aggregate. If approved by TOWN, evidence of qualified self-insured status may be substituted for one or more of the foregoing insurance coverages. Coverage must have no exclusion for design-build projects.

B. CONSULTANT shall procure and maintain the minimum insurance coverages listed herein. Such coverages shall be procured and maintained with forms and insurers acceptable to TOWN, acceptance of which shall not be unreasonably withheld. All coverages shall be continuously maintained to cover all liability, claims, demands and other obligations assumed by CONSULTANT pursuant this Agreement. In the case of any claims made to the policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. If any policy required by this Agreement is written on a “claims made” basis, coverage must extend for three

(3) years following the termination of this Agreement.

C. All policies must be written by insurance companies whose rating, in the most recent A.M. Best’s Rating Guide, is not less than A- VII or higher, unless CONSULTANT obtains prior written approval of TOWN.

D. A Certificate of Insurance shall be completed by the CONSULTANT’s insurance agent(s) as evidence that policies providing the required coverages, conditions and minimum limits are in full force and effect and shall be subject to review and approval by TOWN. The Certificate shall identify this Agreement and shall provide that the coverages afforded under the policies shall not be canceled, terminated or limits reduced until at least thirty (30) days prior written notice has been given to TOWN. TOWN shall be named as an additional insured. The completed Certificate of Insurance shall be sent to:

Town of Cave Creek 37622 North Cave Creek Road Cave Creek, AZ 85331 ATTN: Procurement Administrator

E. Failure on the part of CONSULTANT to procure or maintain policies providing the required coverages, conditions and minimum limits shall constitute a material breach of this Agreement upon which TOWN may immediately terminate this Agreement or, at its discretion, TOWN may procure or renew any such policy or any extended reporting period thereto and may pay any and all premiums in connection therewith, and all monies so paid by TOWN shall be repaid by the CONSULTANT to TOWN upon demand, or TOWN may offset the cost of the premiums against any monies due to CONSULTANT from TOWN.

F. TOWN reserves the right to request and receive a certified copy of any policy and any pertinent endorsement thereto. CONSULTANT agrees to execute any and all documents necessary to allow TOWN access to any and all insurance policies and endorsements pertaining to this particular job.

G. All policies shall provide primary coverage and waivers of subrogation by endorsement or otherwise. A waiver of subrogation shall be effective as to any person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, did not pay for the insurance premium directly or indirectly and whether or not the person or entity had an insurable interest in the property damaged.

H. The following policies shall include Additional Insured endorsements: Automobile Liability Insurance and Commercial General Liability and Business Liability.

I. TOWN reserves the right to require higher limits of liability coverage if, in TOWN’s opinion, operations or services create higher than normal hazards.

8. NON-ASSIGNABILITY. Neither this Agreement, nor any of the rights or obligations of the parties hereto, shall be assigned by either party without the written consent of the other.

9. TERM; TERMINATION.

A. Term. The term of this Agreement shall commence on the Effective Date of award and shall continue for a period of ______ (__) years thereafter. The TOWN has the option, in the TOWN’s sole discretion, to renew the Agreement for ____ (__) additional ____ year periods. If the Agreement is renewed, the total length of the Agreement shall not exceed ______ (__) years. This Agreement shall terminate on ______________, or at such time as the work in the Scope of Work is completed to the satisfaction of the TOWN, whichever occurs first.

B. Termination for Convenience. This Agreement is for the convenience of TOWN and may be immediately terminated without cause after receipt by the CONSULTANT of written notice by TOWN. Upon termination for convenience, TOWN shall pay CONSULTANT for all work previously authorized and performed prior to the date of termination. If, however, CONSULTANT has substantially or materially breached the standards and terms of this Agreement, TOWN shall have any remedy or right of set-off available at law and equity. Upon any termination of this Agreement, no further payments shall be due from TOWN to CONSULTANT unless and until CONSULTANT has delivered to TOWN full sized and usable copies of all documents, designs, drawings, and specifications generated by CONSULTANT in relation to the Project or this Agreement.

No other payments, including any payment for lost profit or business opportunity, and no penalty shall be owed by TOWN to CONSULTANT in the event of termination upon notice. After termination, CONSULTANT may complete other such work as it deems necessary, except that such work will be at its own expense and there shall be no “termination charge” whatsoever to TOWN.

C. Termination for Cause. TOWN may terminate this Agreement for cause if CONSULTANT fails to cure any breach of this Agreement within fifteen days after receipt of written notice specifying the breach.

D. Extension for Procurement Purposes. Upon expiration of the Term of this Agreement, including the initial term and any renewals, at TOWN’s discretion, this Agreement may be extended on a month-to-month basis for a maximum of six (6) months to allow for TOWN to complete its procurement processes to select a vendor to provide the services/materials similar to those provided under this Agreement. There are no automatic renewals of this Agreement.

E. Appropriation of Funds. Every payment obligation of TOWN under this Agreement is conditioned upon the availability of funds appropriated or allocated for payment of such obligation. If funds are not allocated and available for the continuance of this Agreement, this Agreement may be terminated by TOWN at the end of the period for which funds are available. No liability shall accrue to TOWN in the event this provision is exercised, and TOWN shall not be obligated or liable for any future payments or for any damages resulting from termination under this provision.

10. VENUE; JURISDICTION; JURY TRIAL WAIVER. This Agreement shall be governed by the laws of the State of Arizona, and any legal action concerning the provisions hereof shall be brought in the County of Maricopa, State of Arizona. Both parties hereby waive any right to a jury trial which they may otherwise have in the event of litigation arising out of this Agreement or the subject matter thereof and consent to a trial to the court.

11. INDEPENDENT CONTRACTOR. CONSULTANT is an independent contractor.

Notwithstanding any provision appearing in this Agreement, and any exhibits and/or addenda, all personnel assigned by CONSULTANT to perform work under the terms of this Agreement shall be, and remain at all times, employees or agents of CONSULTANT for all purposes. TOWN does not have the authority to supervise or control the actual work of CONSULTANT, its employees or subcontractors. CONSULTANT shall make no representation that it is the employee of TOWN for any purpose.

12. NO WAIVER. Delays in enforcement or the waiver of any one (1) or more defaults or breaches of this Agreement by TOWN shall not constitute a waiver of any of the other terms or obligations of this Agreement.

13. ENTIRE AGREEMENT. This Agreement, together with the attached exhibits, is the entire agreement between CONSULTANT and TOWN, superseding all prior oral or written communications. None of the provisions of this Agreement may be amended, modified or changed except by written amendment executed by both parties. This Agreement will be construed and interpreted according to its plain meaning, and no presumption will be deemed to apply in favor of or against the party drafting the Agreement. In the event any term or provision of this Agreement is held to be illegal or in conflict with any law of the United States or Arizona or any local law, the validity of the remaining provisions shall not be affected, and this Agreement shall be construed and enforced as if it did not contain the particular term or provision.

14. NON-DISCRIMINATION. CONSULTANT, its agents, employees, contractors and subcontractors shall not discriminate in any employment policy or practice. “Discrimination” means to exclude individuals from an opportunity or participation in any activity or to accord different or unequal treatment in the context of a similar situation to similarly situated individuals because of race, color, gender, gender identity, sexual orientation, religion, national origin or ancestry, marital status, familial status, age, disability, or Veteran status.

15. COMPLIANCE WITH FEDERAL AND STATE LAWS.

A. In the performance of this Agreement, CONSULTANT will abide by and conform to any and all federal, state and local laws.

B. Under the provisions of Arizona Revised Statutes (A.R.S.) § 41-4401, CONSULTANT hereby warrants to TOWN that CONSULTANT and each of its subcontractors will comply with, and are contractually obligated to comply with, all Federal Immigration laws and regulations that relate to their employees and A.R.S. § 23-214(A) (hereinafter “Contractor Immigration Warranty”). A breach of the Contractor Immigration Warranty shall constitute a material breach of this Agreement and shall subject CONSULTANT to penalties up to and including termination of this Agreement at the sole discretion of TOWN. TOWN retains the legal right to inspect the papers of any contractor or subcontractor employee who works on this Agreement to ensure that the contractor or subcontractor is complying with the Contractor Immigration Warranty. CONSULTANT agrees to assist TOWN in regard to any such inspections. TOWN may, at its sole discretion, conduct random verification of the employment records of CONSULTANT and any subcontractors to ensure compliance with the Contractor Immigration Warranty.

CONSULTANT agrees to assist TOWN in regard to any random verification performed.

Neither CONSULTANT nor any subcontractor shall be deemed to have materially breached the Contractor Immigration Warranty if CONSULTANT or any subcontractor establishes that it has complied with the employment verification provisions prescribed by Sections 274A and 274B of the Federal Immigration and Nationality Act and the E- Verify requirements prescribed by A.R.S. § 23-214, Subsection A.

C. The provisions of this Section must be included in any contract that CONSULTANT enters into with any and all of its subcontractors who provide services under this Agreement or any subcontract. For the purposes of this paragraph, "Services" are defined as furnishing labor, time or effort by a contractor or subcontractor. Services include construction or maintenance of any structure, building or transportation facility or improvement to real property.

D. If applicable (CONSULTANT is a natural person), CONSULTANT shall execute the required documentation and affidavit of lawful presence as set forth in ARS 1-502/8 USC § 1621 (Exhibit B).

E. CONSULTANT understands and acknowledges the applicability to it of the Americans with Disabilities Act, the Immigration Reform and Control Act of 1986 and the Drug Free Workplace Act of 1989. The following is only applicable to construction contracts:

CONSULTANT must also comply with A.R.S. § 34-301, “Employment of Aliens on Public Works Prohibited,” and A.R.S. § 34-302, as amended, “Residence Requirements for Employees.”

16. DISPUTE RESOLUTION. The parties agree in good faith to attempt to resolve amicably, without litigation, any dispute arising out of or relating to this Agreement. In the event that any dispute cannot be resolved through direct discussions, the parties agree to endeavor to settle the dispute by mediation. Either party may make a written demand for mediation, upon which demand the matter shall be submitted to a mediation firm mutually selected by the parties. The mediator shall hear the matter and provide an informal opinion and advise within twenty (20) days following written demand for mediation. Said informal opinion and advice shall not be binding on the parties, but shall be intended to help resolve the dispute. The mediator's fee shall be shared equally by the parties. If the dispute has not been resolved, the matter may then be submitted to the judicial system.

17. DELAYS. CONSULTANT shall not be responsible for delays which are due to causes beyond CONSULTANT’s reasonable control. In case of any such delay, any deadline established as part of the Scope of Work shall be extended accordingly.

18. REMEDIES UPON BREACH. If any party to this Agreement materially breaches the terms of the Agreement, the non-breaching party may exercise any and all remedies available to them under Arizona law, including, without limitation, if applicable, bringing a lawsuit for monetary damages or specific performance.

19. CONFLICT OF INTEREST. From the date of this Agreement through the termination of its service to TOWN, CONSULTANT shall not accept, negotiate or enter into any contract or agreements for services with any other party that may create a substantial interest, or the appearance of a substantial interest in conflict with the timely performance of the work or ultimate outcome of this Agreement and/or adversely impact the quality of the work under this Agreement without the express approval of the Town Manager and the Town Attorney.

Whether such approval is granted shall be in the sole discretion of the Town Manager and the Town Attorney. The parties hereto acknowledge that this Agreement is subject to cancellation pursuant to the provisions of A.R.S. § 38-511.

20. NOTICE. Any notice or communication between CONSULTANT and TOWN that may be required, or that may be given, under the terms of this Agreement shall be in writing, and shall be deemed to have been sufficiently given when directly presented or sent pre-paid, first-class United States Mail, addressed as follows:

TOWN: Grady E. Miller, Town Manager Town of Cave Creek 37622 North Cave Creek Road Cave Creek, AZ 85331

CONSULTANT: ____________________, _________

21. EXHIBITS. The following exhibits, are a part of this Agreement and incorporated by this reference:

Exhibit A Scope of Work Exhibit B Affidavit of Lawful Presence, if applicable

In the event of any conflict between the terms of an Exhibit and this Agreement, the terms of the Agreement shall control.

22. NOTICE TO PROCEED. Unless otherwise noted by TOWN, acceptance of this Agreement is official notice to proceed with the work.

23. PUBLIC RECORDS. Notwithstanding any provisions of this Agreement regarding confidentiality, secrets, or protected rights, CONSULTANT acknowledges that all documents provided to TOWN may be subject to disclosure by the Arizona public records law under A.R.S. 39-121 and related provisions. In the event CONSULTANT objects to any disclosure, CONSULTANT agrees to handle all aspects related to the request including properly communicating with the requester and timely responding with information and CONSULTANT agrees to indemnify TOWN from an claims, actions, lawsuits, damages and losses resulting from CONSULTANT’s objection to the disclosure.

24. NO USE OF FORCED LABOR OF ETHNIC UYGHURS IN PEOPLES REPUBLIC

OF CHINA. Pursuant to A.R.S. § 35-394, as may be amended, unless exempt, CONSULTANT hereby certifies that it is does not use, and agrees not to use during the term of this Agreement, any of the following: forced labor of ethnic Uyghurs in the People’s Republic of China; any goods or services produced by the forced labor of ethnic Uyghurs in the People’s Republic of China; or 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.

25. ISRAEL BOYCOTT CERTIFICATION. CONSULTANT hereby certifies that it is not currently engaged in and will not, for the duration of this agreement, engage in a boycott of Israel as defined by A.R.S. §35-393.01. Violation of this certification by CONSULTANT may result in action by TOWN up to and including termination of this Agreement.

IN WITNESS WHEREOF, the Parties hereto have executed and caused to be signed by their duly authorized representatives, this Agreement on the day and year first above written.

TOWN OF CAVE CREEK:

Grady E. Miller, Town Manager

ATTEST:

Teresa Riza, Deputy Town Manager/Town Clerk

REVIEWED AS TO FORM:

William J. Sims, Town Attorney

I hereby affirm that I am authorized to enter into and sign this Agreement on behalf of

CONSULTANT.

EXHIBITS

Exhibit A

Scope of Work and Associated Costs.

Exhibit B

Affidavit of Lawful Presence as set forth in ARS 1-502/8 USC §1621.

Affidavit of Lawful Presence not required as this consultant is a corporation (Inc., LLC, LLP).