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AGREEMENT FOR SERVICES
Contract No. RFP 23-02
THIS Agreement is entered into as of this 7th day of August 2023, by and
between the Town of Wickenburg, Arizona, a municipal corporation, hereinafter referred
to as the “Town” and _________________, hereinafter referred to as the “Contractor.”
FOR THE PURPOSE of providing vehicle towing services for the Town of
Wickenburg, the Town and Contractor do hereby mutually agree to the following:
1.
SERVICES AND RESPONSIBILITIES
1.1
Retention of the Contractor. In consideration of the mutual promises
contained in this Agreement, the Town engages the Contractor to render services set
forth herein, in accordance with all the terms and conditions contained in this
Agreement.
1.2
Scope of Services. The Contractor shall do, perform and carry out in a
satisfactory and proper manner, as determined by the Town, the services set forth in
this Agreement, including all exhibits (“Services”). The specific scope of work is set forth
in Exhibit A.
1.3
Responsibility of the Contractor.
1.3.1
Contractor hereby agrees that the documents and reports prepared by
Contractor will fulfill the purposes of the Contract, shall meet all applicable code
requirements, and shall comply with applicable laws and regulations. In addition, and
not as a limitation on the foregoing, such documents and reports prepared by
Contractor shall be prepared in accordance with professional Consulting standards, as
applicable. Any review or approval of said documents and reports does not diminish
these requirements.
1.3.2
Contractor shall procure and maintain during the course of this Agreement
insurance coverage required by Paragraph 4 of this Agreement.
1.3.3
Contractor shall designate ____________________ as Contractor
Representative and all communications shall be directed to him. Prior to changing such
designation Contractor shall first obtain the approval of Town.
1.3.4
Contractor's subcontracts are set forth in Exhibit B attached hereto and
made a part hereof. Any modification to the list of Subcontractors on Exhibit B, either
by adding, deleting, or changing subcontractors, shall require the written consent of the
Town.
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1.3.5
Contractor shall obtain its own legal, insurance and financial advice
regarding Contractor's legal, insurance and financial obligations under this Agreement.
1.3.6
Contractor shall coordinate its activities with the Town’s representative
and submit its reports to the Town’s representative.
1.3.7
Contractor shall provide, pay for and insure under the requisite laws and
regulations all labor, materials, equipment, and transportation, and other facilities and
services necessary for the proper execution and completion of the Services. Contractor
shall provide and pay for and insure for all equipment necessary for the Services.
1.3.8
Contractor shall obtain and pay for all business registrations, licenses,
permits, governmental inspections and governmental fees necessary and customarily
required for the proper execution and completion of Services. Contractor shall pay all
applicable taxes. Contractor shall give all notices and comply with all laws, ordinances,
rules, regulations and lawful orders of any public authority bearing on the performance
of the Services.
1.4
Responsibility of the Town.
1.4.1
The Town shall cooperate with the Contractor by placing at his disposal all
available information concerning the Services.
1.4.2
Town designates Police Chief Les Brown as its Town Representative. All
communications to Town shall be through its Town Representative.
1.5
Contract Term; Renewal. The term of the contract is for three (3) years. By
mutual written contract amendment, any resultant contract may be extended annually for
two (2) one (l) year terms up to a maximum of five (5) years unless terminated,
cancelled, or extended as otherwise provided herein.
1.6
Schedule of Services. The Schedule of Services is set forth in Exhibit A,
Scope of Work.
2.
COMPENSATION AND METHOD OF PAYMENT
2.1
Compensation. All compensation for complete and satisfactory completion
of services rendered by Contractor, including its subcontractor(s), shall be set forth in
Exhibit D and shall not exceed the fixed fee schedule included in .
2.2
Method of Payment. Method of payment shall be set forth in Exhibit D1 in
the Fixed Fee Schedule. If payment is to be made monthly, Contractor shall prepare
monthly invoices. All invoices shall be for services completed.
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2.3
Invoices. Town reserves the right to deduct up to ten percent (10%) from
the invoiced amount for any invoice submitted more than sixty (60) days after the
services are completed. Invoices for the month of June shall be submitted on or before
July 10th. Invoices submitted after the close out of the fiscal year (July 15th) shall not
be paid by Town.
2.4
W-9. The Contractor shall provide to Town its completed W-9 Form prior
to receipt of any Compensation.
2.5
Business License. The Contractor shall obtain and maintain a Town of
Wickenburg business license.
2.6
Taxes. Contractor will be responsible for and shall pay all sales,
consumer, use, and other taxes. When equipment, materials, or services generally
taxable to the Contractor are eligible for a tax exemption, credit or deduction due to the
nature of the item, at Contractor's request, Town will assist Contractor in applying for
and obtaining the same.
3.
CHANGES TO THE SCOPE OF SERVICES
3.1
Change Orders. The Town may, at any time, and by written change order,
make changes in the services to be performed under this Agreement. A form of change
order is attached hereto as Exhibit E. If such changes cause an increase or decrease in
the Contractor's cost or time required for performance of any services under this
Agreement, an equitable adjustment shall be made and the Agreement shall be
modified in writing accordingly. Any claim of the Contractor for adjustment under this
clause must be submitted in writing within thirty (30) days from the date of receipt by the
Contractor of the notification of change. It is distinctly understood and agreed by the
parties that no claim for extra services provided or materials furnished by Contractor will
be allowed by Town except as provided herein nor shall Contractor provide any services
or furnish any materials not covered by this Agreement unless Town first approves in
writing.
4.
REPRESENTATIONS AND REQUIREMENTS
4.1
General. Contractor agrees to comply with all Town ordinances and state
and federal laws and regulations. Without limiting any obligations or liabilities of
Contractor, Contractor shall purchase and maintain, at its own expense, hereinafter
stipulated minimum insurance with insurance companies duly licensed by the State of
Arizona (admitted insurer) with an AM Best, Inc. rating of A-7 or above or an equivalent
qualified unlicensed insurer by the State of Arizona (non-admitted insurer) with policies
and forms satisfactory to the Town. Failure to maintain insurance as specified may
result in termination of this Agreement at Town’s option.
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4.2
No Representation of Coverage Adequacy. By requiring insurance herein,
Town does not represent that coverage and limits will be adequate to protect
Contractor. 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 Contractor
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.
4.3
Additional Insured. All insurance coverage and self-insured retention or
deductible portions, except Workers Compensation insurance if applicable, shall name,
to the fullest extent permitted by law for claims arising out of the performance of this
Agreement, Town, its agents, representatives, officers, directors, officials and
employees as Additional Insured as specified under the respective coverage sections of
this Agreement.
4.4
Coverage Term. All insurance required herein shall be maintained in full
force and effect until all Services required to be performed under the terms of this
Agreement is satisfactorily performed, completed and formally accepted by the Town,
unless specified otherwise in this Agreement.
4.5
Primary Insurance. Contractor’s insurance shall be primary insurance and
noncontributory as respects performance of subject contract and in the protection of the
Town as an Additional Insured.
4.6
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 (3)
years past completion and acceptance of the Services 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.
4.7
Waiver. All policies, including Workers’ Compensation Insurance, shall
contain a waiver of rights of recovery (subrogation) against Town, its agents,
representative, officials, directors, officers, and employees for any claims arising out of
the Services of Contractor. Contractor shall arrange to have such subrogation waivers
incorporated into each policy via formal written endorsement thereto.
4.8
Policy Deductibles and or Self-Insured Retentions. The policies set forth in
these requirements may provide coverage, which contain deductibles or self-insured
retention amounts. Such deductibles or self-insured retention shall not be applicable
with respect to the policy limits provided to Town. Contractor shall be solely responsible
for any such deductible or self-insured retention amount. Town, at its option, may
require Contractor to secure payment of such deductible or self-insured retention by a
surety bond or irrevocable and unconditional Letter of Credit.
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4.9
Use of Subcontractors. If any Services under this Agreement are
subcontracted in any way, Contractor shall execute written agreement with
Subcontractor containing the same Indemnification Clause and Insurance Requirements
set forth herein protecting Town and Contractor. Contractor shall be responsible for
executing the agreement with Subcontractor and obtaining Certificates of Insurance
verifying the insurance requirements.
4.10
Evidence of Insurance. Prior to commencing any Services under this
Agreement, Contractor shall furnish Town with Certificate(s) of Insurance, or formal
endorsements as required by this Agreement, issued by Contractor’s Insurer(s) as
evidence that policies are placed with acceptable insurers as specified herein and
provide the required coverage’s, conditions, and limits of coverage specified in this
Agreement and that such coverage and provisions are in full force and effect.
Acceptance and reliance by the Town on a Certificate of Insurance shall not waive or
alter in any way the insurance requirements or obligations of this Agreement. Such
Certificate(s) shall identify the Agreement and be sent to the Town Risk Manager. If any
of the above cited policies expire during the life of this Agreement, it shall be
Contractor’s responsibility to forward renewal Certificates within ten (10) days after the
renewal date containing all the aforementioned insurance provisions. Certificates shall
specifically cite the following provisions:
4.10.1
Town, its agents, representatives, officers, directors, officials and
employees is an Additional Insured as follows:
a.
Commercial General Liability-Under ISO Form CG 20 10 11 85 or
equivalent.
b.
Auto Liability-Under ISO Form CA 20 48 or equivalent.
c.
Excess Liability-Follow Form to underlying insurance.
4.10.2
Contractor’s insurance shall be primary insurance as respects
performance of this Agreement.
4.10.3
All policies, including Workers’ Compensation, waive rights of recovery
(subrogation) against Town, its agents, representatives, officers, directors, officials
and employees for any claims arising out of Services performed by Contractor under
this Agreement.
4.10.4
Certificate shall cite a thirty (30) day advance notice cancellation
provision. If ACORD Certificate of Insurance form 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.
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4.11
Required Coverage:
4.11.1
Commercial General Liability: Contractor shall maintain “occurrence” from
Commercial Liability Insurance with a policy 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 Insurance Services Office, Inc. policy form CG 00 010 93 or equivalent
thereof, including but not limited to, separation of insured clause. To the fullest extent
allowed by law, for claims arising out of the performance of this Agreement, Town, its
agents, representative, officers, directors, officials and employees shall be cited as an
Additional Insured Endorsement form CG 20 10 11 85 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 paragraph, such Excess insurance shall be “follow form” equal or
broader in coverage scope than underlying insurance.
4.11.2
Vehicle Liability: Contractor shall maintain Business Automobile Liability
Insurance with a limit of $1,000,000 each occurrence on Contractor’s owned, hired, and
non-owned vehicles assigned to or used in the performance of the Contractor’s
Services under this Agreement. Coverage will be at least as broad as Insurance
Services Office, Inc., 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
performance of this Agreement, the Town, its agents, representative, officers, directors,
officials and employees shall be cited as an Additional Insured under the Insurance
Service Offices, Inc. Business Auto Policy Designated Insured Endorsement form CA
20 48 or equivalent. If any Excess insurance is utilized to fulfill the requirements of this
paragraph, such Excess insurance shall be “follow form” equal or broader in coverage
scope than underlying insurance.
4.11.4
Workers’ Compensation Insurance: Contractor shall maintain Workers’
Compensation insurance to cover obligations imposed by federal and state statutes
having jurisdiction of Contractor’s employees engaged in the performance Services
under this Agreement and shall also maintain Employer Liability Insurance of not less
than $500,000 for each accident, $500,000 disease for each employee and $1,000,000
disease policy limit.
5.
INDEMNIFICATION
5.1
To the fullest extent permitted by law, the Contractor, its successors,
assigns and guarantors, shall pay, defend, indemnify and hold harmless the town, its
agents, officers, officials and employees from and against all demands, claims,
proceedings, suits, damages, losses and expenses (including but not limited to attorney
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fees, court costs, and the cost of appellate proceedings), and all claim adjustment and
handling expenses, relating to, arising out of, or alleged to have resulted from acts,
errors, mistakes, omissions, Services caused by the Contractor, its agents, employees
or any tier of Contractor’s subcontractors related to the Services in the performance of
this Agreement. Contractor’s duty to defend, hold harmless and indemnify the town, its
agents, officers, officials and employees shall arise in connection with any claim,
damage, loss or expense that is attributable to bodily injury, sickness, disease, death, or
injury to, impairment, or destruction of property including loss of use of resulting
therefrom, caused by Contractor’s acts, errors, mistakes, omissions, Services in the
performance of this Agreement including any employee of the Contractor, any tier of
Contractor’s subcontractor or any other person for whose acts, errors, mistakes,
omissions, Services the Contractor may be legally liable including the Town. Such
indemnity does not extend to the Town’s negligence.
5.2
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.
6.
TERMINATION OF THIS AGREEMENT
6.1
Termination. The Town may, by written notice to the Contractor, terminate
this Agreement in whole or in part with seven (7) days notice, either for the Town's
convenience or because of the failure of the Contractor to fulfill his contract obligations.
Upon receipt of such notice, the Contractor shall: (1) immediately discontinue all
services affected (unless the notice directs otherwise), and (2) deliver to the Town
copies of all data, drawings, reports, estimates, summaries, and such other information
and materials as may have been accumulated by the Contractor in performing this
Agreement, whether completed or in process. This Agreement may be terminated in
whole or in part by the Contractor in the event of substantial failure by the Town to fulfill
its obligations.
6.2
Payment to Contractor Upon Termination. If the Agreement is terminated,
the Town shall pay the Contractor for the services rendered prior thereto in accordance
with percent completion at the time work is suspended minus previous payments.
7.
ASSURANCES
7.1
Solicitations for Subcontractors, Including Procurements of Materials and
Equipment. In all solicitations either by competitive bidding or negotiation made by the
Contractor for Services to be performed under a subcontract, including procurements of
materials or leases of equipment, each potential subcontractor or supplier shall be
notified by the Contractor of the Contractor's obligations under this Agreement and any
Regulations relative to nondiscrimination on the grounds of race, color or national origin.
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7.2
Examination of Records. The Contractor agrees that duly authorized
representatives of the Town shall, until the expiration of three (3) years after final
payment under this Agreement, have access to and the right to examine any directly
pertinent books, documents, papers, and records of the Contractor involving
transactions related to this Agreement.
7.3
Ownership of Document and Other Data. Original documents and other
data prepared or obtained under the terms of this Agreement or any change order are
and will remain the property of the Town unless otherwise agreed to by both parties.
Town may use such documents for other purposes without further compensation to the
Contractor; however, any reuse without written verification or adaptation by Contractor
for the specific purpose intended will be at Town's sole risk and without liability or legal
exposure to Contractor. Any verification or adaptation of the documents by Contractor
for other purposes than contemplated herein will entitle Contractor to further
compensation as agreed upon between the parties.
7.4
Litigation. Should litigation be necessary to enforce any term or provision
of this Agreement, or to collect any damages claimed or portion of the amount payable
under this Agreement, that all litigation and collection expenses, witness fees, court
costs, and reasonable attorneys' fees incurred shall be paid to the prevailing party.
7.5
Independent Contractor. This Contract does not create an
employee/employer relationship between the parties. It is the parties’ intention that the
Contractor will be an independent contractor and not Town’s employee for all purposes,
including, but not limited to, the application of the Fair Labor Standards Act, Federal
Insurance Contribution Act, the Social Security Act, the Federal Unemployment Tax Act,
the Internal Revenue Code, the Immigration and Naturalization Act, Arizona revenue
and taxation laws, Arizona Workers’ Compensation Law, and Arizona Unemployment
Insurance Law. The Contractor agrees that it is a separate and independent enterprise
from Town, that it has a full opportunity to find other business, that it has made its own
investment in its business, and that it will utilize a high level of skill necessary to perform
the work. This Contract shall not be construed as creating any joint employment
relationship between the Contractor and Town, and Town will not be liable for any
obligation incurred by the Contractor, including but not limited to unpaid minimum
wages and/or overtime premiums. [FOR SOLE PROPRIETORS ONLY: The
Contractor shall execute the Sole Proprietor’s Waiver of Workers’ Compensation
Benefits attached hereto and incorporated by reference.]
7.6
Immigration Law Compliance Warranty. As required by A.R.S. § 41-4401,
Contractor hereby warrants its compliance with all federal immigration laws and
regulations that relate to its employees and A.R.S. § 23-214(A). Contractor further
warrants that after hiring an employee, Contractor verifies the employment eligibility of
the employee through the E-Verify program. If Contractor uses any subcontractors in
performance of the Work, subcontractors shall warrant their compliance with all federal
immigration laws and regulations that relate to its employees and A.R.S. § 23-214(A),
and subcontractors shall further warrant that after hiring an employee, such
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subcontractor verifies the employment eligibility of the employee through the E-Verify
program. A breach of this warranty shall be deemed a material breach of the Contract
that is subject to penalties up to and including termination of the Contract. Contractor is
subject to a penalty of $100 per day for the first violation, $500 per day for the second
violation, and $1,000 per day for the third violation. Town at its option may terminate
the Contract after the third violation. Contractor shall not be deemed in material breach
of this Contract if the Contractor and/or subcontractors establish compliance with the
employment verification provisions of Sections 274A and 274B of the federal
Immigration and Nationality Act and the E-Verify requirements contained in A.R.S. § 23-
214(A). Town retains the legal right to inspect the papers of any Contractor or
subcontractor employee who works on the Contract to ensure that the Contractor or
subcontractor is complying with the warranty. Any inspection will be conducted after
reasonable notice and at reasonable times. If state law is amended, the parties may
modify this paragraph consistent with state law.
7.7
Exclusive Use of Services - Confidentiality. The services agreed to be
provided by Contractor within this Agreement are for the exclusive use of the Town and
Contractor shall not engage in conflict of interest nor appropriate Town work product or
information for the benefit of any third parties without Town consent.
7.8
Sole Agreement. There are no understandings or agreements except as
herein expressly stated.
7.9
Notices. Any notice to be given under this Agreement shall be in writing,
shall be deemed to have been given when personally served or when mailed by
certified or registered mail, addressed as follows:
TOWN:
CONTRACTOR:
Town Manager
Town of Wickenburg
155 N. Tegner, Suite A
Wickenburg, Arizona 85390
The address may be changed from time to time by either party by serving
notices as provided above.
7.10
Controlling Law. This Agreement is to be governed by the laws of the
State of Arizona.
8.
SUSPENSION OF WORK
8.1
Order to Suspend. The Town may order the Contractor, in writing, to
suspend all or any part of the Services for such period of time as he may determine to
be appropriate for the convenience of the Town.
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8.2
Adjustment to Contract Fee. If the performance of all or any part of the
Services is, for any unreasonable period of time, suspended or delayed by an act of the
Town in the administration of this Agreement, or by its failure to act within the time
specified in this Agreement (or if no time is specified, within a reasonable time), an
adjustment shall be made for any increase in cost of performance of this Agreement
necessarily caused by such unreasonable suspension or modified in writing accordingly.
However, no adjustment shall be made under this clause for any suspension or delay to
the extent (1) that performance was suspended or delayed for any other cause,
including the fault or negligence of the Contractor, or (2) for which an equitable
adjustment is provided for or excluded under any other provision of this Agreement.
9.
INTERESTS AND BENEFITS
9.1
Interest of Contractor. The Contractor covenants that he presently has no
interest and shall not acquire any interest, direct or indirect, which would conflict in any
manner or degree with the performance of services required to be performed under this
Agreement. The Contractor further covenants that in the performance of this
Agreement, no person having any such interest shall be employed.
9.2
Interest of Town Members and Others. No officer, member or employee
of the Town and no member of its governing body, who exercises any functions or
responsibilities in the review or approval of the undertaking or carrying out of the
services to be performed under this Agreement, shall participate in any decision relating
to this Agreement which affects his personal interest or have any personal or pecuniary
interest, direct or indirect, in this Agreement or the process thereof.
9.3
Notice Regarding A.R.S. § 38-511. This Contract is subject to
cancellation under Section 38-511, Arizona Revised Statutes..
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10.
ASSIGNABILITY
The Contractor shall not assign any interest in this Agreement, and shall
not transfer any interest in the same without the prior written consent of the Town
thereto.
IN WITNESS WHEREOF, the Town and the Contractor have executed
this Agreement as of the date first written.
TOWN OF WICKENBURG
CONTRACTOR
______________________________
________________________________
Mayor Rui Pereira
Name: __________________________
ATTEST:
Title: __________________________
______________________________
Amy Brown, Town Clerk
APPROVED AS TO FORM:
______________________________
Trish Stuhan, Town Attorney
Pierce Coleman PLLC
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EXHIBIT A
SCOPE OF WORK
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EXHIBIT B
CONTRACTOR’S KEY PERSONNEL AND SUBCONTRACTORS
KEY PERSONNEL:
Listed in Personnel List Questionnaire
SUBCONTRACTORS:
EXHIBIT C
SCHEDULE OF SERVICES
See attached Exhibit A - Scope of Work
EXHIBIT D
PAYMENT SCHEDULE
Compensation
1. The consideration of payment to Contractor, as provided herein shall be in full
compensation for all of Contractor’s work incurred in the performance hereof,
including towing, recovery, roadside assistance, standby, mileage, storage, and
gate fees.
2. Attached hereto as Exhibit D-1 is the Fixed Fee Schedule listing the fees to be
charged.
Method of Payment
If payment is to be made monthly, Contractor shall prepare monthly invoices. All
invoices shall be for services completed.
EXHIBIT D-1
FIXED FEE SCHEDULE
EXHIBIT E
CHANGE ORDER
CHANGE ORDER NO. ______
Distribution: TOWN
[ ]
CONTRACTOR
[ ]
OTHER
[ ]
PROJECT: RFP 23-01 Vehicle Towing Services
DATE:
OWNER: Town of Wickenburg
CONTRACTOR:
AGREEMENT DATED:
CHANGES: The Agreement is changed as follows:
Not valid until signed by both Town and Contractor.
Signature of Contractor indicates acceptance.
The original compensation was __________________________________________
Net change by previously authorized Change Orders_________________________
The compensation prior to this Change Order was _______________________
The compensation will be increased by this Change Order in the amount of
______________________________________________________________
The new compensation under the Agreement including this Change Order will be
_______________
The Contract Time will increase by ______________________________________
ACCEPTANCE STATUS:
Contractor
Town of Wickenburg
By
By
Date
Date