Bustamante & Kuffner, P.C., PSC Executed

Contract No.
(Code/Zoning Prosecution Services)

CITY OF EL MIRAGE
PROFESSIONAL SERVICES CONTRACT

THIS CONTRACT is made and entered into this 1" day of July, 2017, by and between the City of El
Mirage, an Arizona municipal corporation (“City”), and Bustamante & Kuffner, P.C., (“Consultants”).

RECITALS

A. The City of El Mirage is authorized and empowered by provisions of the City Code to execute
contracts for professional services by and through its City Manager;

B. The City desires to contract for Code Enforcement/Zoning Prosecutor services to perform all
necessary legal services as the El Mirage Code Enforcement/Zoning Prosecutor, on an as needed basis, in
accordance with the laws of the State of Arizona and the Rules of Professional Conduct, including, but
not limited to, the following:

a. Work in conjunction with the City’s Code Enforcement Officers in reviewing and filing
charges on cases submitted to Consultants;

b. Advise the City Code Enforcement Officers on gathering and presentation of evidence,
filing of charges and other legal matters related to city code criminal / civil cases;

c. Appear in the El Mirage City Court to prosecute those who have violated city ordinances.
Prepare and appear for arraignments, arrange and conduct pre-trial conferences with
defendants and/or defense attorneys, and try jury and non-jury trials; and

d. Prepare any necessary legal pleadings and correspondence related to each case.

C, Consultants are licensed by, and in good standing with, the State Bar of Arizona, and are duly qualified
to perform the requested services.

AGREEMENT

NOW THEREFORE, in consideration of the mutual promises and obligations set forth herein, the parties
hereto agree as follows:

1.0 DESCRIPTION, ACCEPTANCE, DOCUMENTATION

Consultants shall act under the authority and approval of the Contract Administrator for the City,
further named herein, to provide the professional services required by this Contract.

Ld SERVICE DESCRIPTION

Consultants shall provide all legal services necessary to prosecute alleged violations of the El
Mirage City Code as cited and/or referred by the City’s Code Enforcement officers. Such
prosecution services shall include, but shall not be limited to, reviewing cases, filing criminal
complaints with the court, preparation of all pleadings reasonably required to effectively
prosecute alleged violations, preparation for trial and hearings, preparation of witnesses,
consulting with and advising the City’s Code Enforcement Officers, and all reasonably related
and ancillary work and services. Consultants represent they have the skills, expertise, and

Page 1 of 8

12

2.0

21

2.2

licenses/permits necessary to perform the services required under this Contract. Accordingly,
Consultants shall perform all such services in the manner and according to the standards observed
by a competent practitioner of the same profession in which Consultant is engaged. All work will
be reviewed and approved by the Contract Administrator to determine acceptable performance.
Review and approval by the Contract Administrator shall not relieve Consultants of any liability
for improper, negligent or inadequate services rendered pursuant to this Contract. Permits and/or
licenses required for Consultants to provide the services under this Contract shall be obtained and
maintained by Consultants at their sole cost and expense without additional compensation by
City.

DOCUMENTATION

All documents, including but not limited to, pleadings, data compilations, studies, and reports
which are prepared in the performance of this Contract shall be prepared in a first class and
workmanlike manner and shail conform to the standards of quality normally observed by a person
practicing in Consultants! profession. All such documents are to be and remain the property of the
City and are to be delivered to the Contract Administrator before final payment is made to the
Consultant.

BILLING RECORDS, AUDIT, FEES
BILLING RECORDS, AUDIT

The time spent for each task shall be recorded and submitted to the Contract Administrator.
Consultants shall maintain all books, papers, documents, accounting records and other evidence
pertaining to time billed and to costs incurred in accordance with accepted standards of their
profession and shall make such materials available for audit in accordance with Paragraph 4.7
below.

FEE SCHEDULE

Consultants will be paid for services provided under the terms of this Contract as follows:

For any work completed in Consultant’s office at the rate of One Hundred Twenty Five Dollars
($125) per hour; and

For any work completed outside of Consultant’s office at the rate of Two Hundred Dollars
($200.00) per hour (including travel time).

Time shall be billed in six minute increments (i.e., .10 hours). Consultants shall not be paid
separately for services performed by others assisting Consultants in performing services under the
terms of this Contract unless such other person(s) is approved, in writing, by the Contract
Administrator.

The Contract Administrator reserves the exclusive right to determine the amount of work
performed and payment due the Consultants on a monthly basis. Consultants shall maintain all
books, paper documents, accounting records and other evidence pertaining to such monthly
billings and shall make such materials available at all reasonable times to the Contract
Administrator. Monthly billings shall be accompanied by such documentation as the Contract
Administrator may require in order to make a determination of the work performed and payment
due for such work.

Page 2 of 8

2.3

2.4

3.0

3

3.2

NOT TO EXCEED AMOUNT

The total compensation paid Consultants for all services provided under this Contract shall not
exceed Thirty Thousand Dollars ($30,000) without the express written approval of the Contract
Administrator. Consultants shall advise the Contract Administrator, in writing, when Consultants
have billed sixty percent (60%) of the not to exceed amount set forth herein.

ADDITIONAL SERVICES

Consultants shall not perform any services not included in the scope of this Contract (“Additional
Services”) without the express written authorization of the Contract Administrator. Any services
performed by Consultants without the express written authorization of the Contract Administrator
will be presumed to be services performed under the original scope of this Contract and the
Consultant shall not be permitted to request or receive any additional compensation for such
services other than as set forth herein.

TERM, EXTENSION, TERMINATION
TERM AND EXTENSION

This Contract shall be in full force and effect for a period of three (3) years from the date first
written above. This Contract may be extended for an additional three year term upon agreement
of the parties.

TERMINATION

The City has the right to terminate this contract for cause or convenience or to abandon any
portion of the Contract for which services have not been performed by the Consultants. In the
event the City terminates this contract or any part of the services as herein provided, the City shall
notify the Consultants, in writing, and immediately upon receipt of such notice, the Consultants
shall discontinue all work under this Contract except as otherwise stated in the notice of
termination. Upon such termination or abandonment, the Consultant shall immediately deliver to
the City any and all case files, documents or work product generated by the Consultant under the
contract, together with all unused material supplied by the City. Consultant shall be responsible
only for such portion of the work which has been completed and accepted by the City. Use of
incomplete data by the City shall be the City’s sole responsibility.

The Consultants shall receive compensation, in accordance with the terms of this Contract, for all
services performed to the date of such termination. The City shall make final payment to
Consultants within 30 days after receipt of Consultants’ final invoice and bill.

If for any reason the Consultants fail to fulfill in a timely and proper manner their obligations
under this contract, or if the Consultants violate any of the covenants, agreements, or stipulations
of this contract, the City may withhold from payment due to the Consultants such amounts as are
necessary to protect the City’s position for the purpose of set-off until such time as the exact
amount of damages is determined.

Consultants shall have the right to terminate this contract for cause or convenience or to abandon
any portion of the project for which services have not been performed by Consultants. If
Consultants terminate this contract for convenience or abandon the project, Consultants shall
provide City not less than thirty (30) days written notice of such termination or abandonment.

Page 3 of 8

3.3

4.0

41

4.2

4.3

44

4.5

4.6

4.7

FUNDS APPROPRIATION

If the City Council does not appropriate funds to continue this Contract and pay for charges
hereunder, the City may terminate this Contract at the end of the current fiscal period. The City
agrees to give written notice pursuant to Section 4.11 of termination to the Consultants at least
thirty (30) days prior to the end of its current fiscal period and will pay to the Consultants all
approved charges incurred through the end of such period.

GENERAL TERMS
ENTIRE AGREEMENT

This Contract constitutes the entire understanding of the parties and supersedes all previous
representations, written or oral, with respect to the services specified herein. This Contract may
not be modified or amended except by a written document, signed by authorized representatives
of each party.

ARIZONA LAW
This Contract shall be governed and interpreted according to the laws of the State of Arizona.
MODIFICATIONS

Any amendment, modification or variation from the terms of this Contract shall be in writing and
shall be effective only after approval of all parties signing the original Contract.

ASSIGNMENT

Services covered by this Contract shall not be assigned or sublet in whole or in part without the
prior written consent of the Contract Administrator.

SUCCESSORS AND ASSIGNS

This Contract shall extend to and be binding upon Consultants, their successors and assigns,
including any individual, company, partnership or other entity with or into which Consultants
shall merge, consolidate or be liquidated, or any person, corporation, partnership or other entity to
which Consultants shall sell their assets.

CONTRACT ADMINISTRATOR

The Contract Administrator for the City shall be George Flores, Community Development
Director, or designee. The Contract Administrator shall oversee the execution of this Contract,
assist the Consultants in accessing the organization, audit billings, and approve payments. The
Consultants shall channel reports and special requests through the Contract Administrator.

RECORDS AND AUDIT RIGHTS

Consultants’ records (hard copy, as well as computer readable data), and any other supporting
evidence deemed necessary by the City to substantiate charges and claims related to this contract
shall be open to inspection and subject to audit and/or reproduction by City’s authorized
representative to the extent necessary to adequately permit evaluation and verification of cost of
the work, and any invoices, change orders, payments or claims submitted by the Consultants or
any of his payees pursuant to the execution of the contract. The City’s authorized representative
shall be afforded access, at reasonable times and places, to all of the Consultants’ records and

Page 4 of 8

4.8

49

4.10

4.11

personnel pursuant to the provisions of this article throughout the term of this contract and for a
period of three years after last or final payment.

Consultants shall require all Sub Consultants, insurance agents, and material suppliers (payees) to
comply with the provisions of this article by insertion of the requirements hereof in a written
contract agreement between Consultants and payee. Such requirements will also apply to any and
all Subconsultants,

If an audit in accordance with this article, discloses overcharges, of any nature, by the Consultants
to the City in excess of one percent (1%) of the total contract billings, the actual cost of the City’s
audit shall be reimbursed to the City by the Consultants. Any adjustments and/or payments
which must be made as a result of any such audit or inspection of the Consultants’ invoices
and/or records shall be made within a reasonable amount of time (not to exceed 90 days) from
presentation of City’s findings to Consultants.

ATTORNEY’S FEES

In the event either party brings any action for any relief, declaratory or otherwise, arising out of
this Contract, or on account of any breach or default hereof, the prevailing party shall be entitled
to received 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 enforceable whether or not such action is prosecuted
to judgment.

INDEPENDENT CONSULTANT/CONTRACTOR

The services Consultants provides under the terms of this Contract to the City are that of an
Independent Consultant/Contractor, not an employee, or agent of the City. The City will report
the value paid for these services each year to the Internal Revenue Service (I.R.S.) using Form
1099.

City shall not withhold income tax as a deduction from contractual payments. As a result of this,
Consultants may be subject to ILR.S. provisions for payment of estimated income tax.
Consultants are responsible for consulting the local I.R.S. office for current information on
estimated tax requirements. Further, as an Independent Consultant/Contractor, Consultants
understands and agree that Consultants are not entitled to any benefits City provides to its
employees and Consultants will not be covered by City’s workers’ compensation policy.

CONFLICT OF INTEREST

The City may cancel any contract or agreement, without penalty or obligation, if any person
significantly involved in initiating, negotiating, securing, drafting or creating the contract on
behalf of the City’s departments or agencies is, at any time while the contract or any extension of
the contract is in effect, an employee of any other party to the contract in any capacity or a
consultant to any other party to the contract with respect to the subject matter of the contract. The
cancellation shall be effective when written notice from the City is received by all other parties to
the contract, unless the notice specifies a later time (A.R.S. $38-511).

NOTICES
All notices or demands required to be given pursuant to the terms of this Contract shall be given
to the other party in writing, delivered by hand or registered or certified mail, at the addresses set

forth below, or to such other address as the parties may substitute by written notice given in the
manner prescribed in this paragraph.

Page 5 of 8

4.12

4.13

4.14

4.15

4.16

In the case of Consultants: Alan Kuffner or Manny Bustamante
Bustamante & Kuffner, P.C.
910 W. McDowell Road
Phoenix, AZ 85007

In the case of City: City of El Mirage
Attn: Terry A, McDonald
Police Chief
12401 W. Cinnabar Ave.
El Mirage, AZ 85335

With a copy to: E] Mirage City Attorney’s Office
10000 N. El Mirage Rd.
El Mirage, AZ 85335

Notices shall be deemed received on date delivered, if delivered by hand, and on the delivery date
indicated on receipt if delivered by certified or registered mail.

FORCE MAJEURE

Neither party shall be responsible for delays or failures in performance resulting from acts beyond
their control. Such acts shall include, but not be limited to, acts of God, riots, acts of war,
epidemics, governmental regulations imposed after the fact, fire, communication line failures,
power failures, or earthquakes,

TAXES

Consultants shall be solely responsible for any and all tax obligations which may result out of the
Consultants’ performance of this contract, The City shall have no obligation to pay any amounts
for taxes, of any type, incurred by the Consultants.

ADVERTISING

No advertising or publicity concerning the City using the Consultants’ services shall be
undertaken without prior written approval of such advertising or publicity by the City Contract
Administrator.

COUNTERPARTS

This contract may be executed in one or more counterparts, and each originally executed
duplicate counterpart of this Contract shall be deemed to possess the full force and effect of the
original.

CAPTIONS

The captions used in this Contract are solely for the convenience of the parties, do not constitute a
part of this Contract and are not to be used to construe or interpret this Contract.

Page 6 of 8

4.17

4.18

5.0

SUBCONSULTANTS

During the performance of the Contract, the Consultants may engage such additional
Subconsultants as may be required for the timely completion of this Contract. The addition of
any Subconsultants shall be subject to the prior approval of the City.

In the event of subcontracting, the sole responsibility for fulfillment of all terms and conditions of
this Contract rests with the Consultant.

INDEMNIFICATION

The Consultants agrees to indemnify and save harmless the City and any of its officers, agents
and employees from all suits, including attorney’s fees and cost of litigation, actions, loss
damage, expense, cost or claims, of any character or nature arising out of the work done in
fulfillment of the terms of this contract or on account of any act, claim or amount arising or
recovered under Workmen’s Compensation Law, or arising out of the failure of the Consultant to
conform to any statutes, ordinances, regulation, law or court decree. It is agreed that the
Consultant will be responsible for primary loss investigation, defense and judgment costs where
this contract of indemnity applies.

Insurance provisions set forth in this agreement are separate and independent from the indemnity
provisions of this paragraph and shall not be construed in any way to limit the scope and
magnitude of the indemnity provisions. The indemnity provisions of this paragraph shall not be
construed in any way to limit the scope and magnitude and applicability of the insurance
provisions.

INSURANCE

The Consultants shall secure and maintain during the life of this contract, at their sole cost and
expense, errors and omissions professional liability insurance. The minimum amounts of
coverage for Consultants’ errors and omissions professional liability insurance shall be One
Million Dollars ($1,000,000.00).

All insurance coverage shall be written through carries licensed in Arizona, or on an approved
non-admitted list of carriers published by the Arizona Department of Insurance, and possessing
an A.M. Best rating of at least B+7 or through Lloyd’s of London. Should coverage be written on
a claims-made basis, the Consultant shall provide, prior to commencement of any work, an initial
certificate of insurance evidencing required coverage limits from date of contract execution
through date of policy expiration. Subsequently, a certificate of insurance or a renewal quotation
accompanied by evidence of premium payment shall be presented a minimum of fifteen (15) days
prior to date of expiration of current certificate. Such certificate or evidence of continuous
coverage shall be provided on a periodic basis for a minimum of two (2) years after completion of
contract, and shall contain a certification that the claim’s period for such insurance is retroactive
to the effective date of this contract. In the event the Consultant fails to provide such certificate
of coverage retroactive to the beginning date of this contract, the City may, but shall not be
required to, purchase insurance, if available to protect itself against any losses which would have
been covered by the errors and omissions policy Consultant is required to maintain under this
article. If the City elects to purchase the insurance under this provision, Consultant shall be liable
to the City for all costs incurred by the City for purchasing such insurance.

The Consultants shall submit to the City a certificate of insurance evidencing the coverage and
limits stated in the foregoing paragraph within ten (10) days of award of this contract. Insurance
evidenced by the certificate shall not expire, be canceled, or materially changed without thirty
(30) days prior written notice to the City, and a statement to that effect must appear on the face of
the certificate and the certificate shall be signed by a person authorized to bind the insurer. The

Page 7 of 8

amount of any errors and omissions deductible shall be stated on the face of the certificate. The
Contract Administrator may require the Consultant to furnish a financial statement establishing
the ability of Consultant to fund the deductible. If in the judgment of the Contract Administrator
the financial statement does not establish the Consultant’s ability to fund the deductible, and no
other provisions acceptable to the Contract Administrator are made to assure funding of the
deductible, the Contract Administrator may, in his sole discretion, terminate this contract without
further liability to the City.

6.0 SEVERABILITY AND AUTHORITY

61 SEVERABILITY

If any term or provision of this Contract shall be found to be illegal or unenforceable, then
notwithstanding such illegality or unenforceability, this Contract shall remain in full force and
effect and such term or provision shall be deemed to be deleted.

6.2 AUTHORITY
Each party hereby warrants and represents that it has full power and authority to enter into and
perform this Contract, and that the person signing on behalf of each has been properly authorized

and empowered to enter this Contract. Each party further acknowledges that it has read this
Contract, understands it, and agrees to be bound by it.

Entered into on the date first written above.

CONSULTANT: CITY OF EL MIRAGE
Bustamante & Kuffner, P.C.

By: Alan Kuffner” [ By: De-Spencer Isom
Its: Vice President / Secretary / Treasurer Itsf City Manager

pe dele

By:4erry A. McDonald
Contract Administrator

ATTEST:

Sharon Antes, Ci

APPROVED AS TO FORM:

Robert Hall
City Attorney

Page 8 of 8