Contract No. 32600208- Empire Pump.pdf
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PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF BUCKEYE AND EMPIRE PUMP CORPORATION CONTRACT NO. 32600208 of _______________________, between the City of Buckeye, an Arizona municipal corporation City , and Empire Pump Corporation, an Arizona corporation tractor RECITALS A. The City issued a Request for Proposals RFP No. 32600208 Well Rehabilitation and Repair Services P a copy of which is on file in the and incorporated herein by reference, seeking proposals from contractors for professional Well Rehabilitation and Repair Services. B. The Contractor submitted a Proposal in response to the RFP Proposal , a copy and the City desires to enter into an Agreement with the Contractor to provide Well Rehabilitation and Repair Services 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 City and the Contractor hereby agree as follows: 1. Term of Agreement. This Agreement shall be effective as of the date first set forth above and shall remain in full force and effect for one (1) year, unless terminated as otherwise provided in this Agreement. After the expiration of the Initial term, this Agreement shall automatically be renewed for up to four (4) successive one (1) . The Initial Term and any Renewal Term(s) are collectively referred to herein as the ain in full force and effect. 2. Scope of Work. The Contractor shall provide the Services as set forth in the RFP and the Proposal. The Contractor shall (i) provide the Services required by this Agreement, (ii) be responsible for all means, methods, techniques, sequences, and proceedings associated with the Services, and (iii) be responsible for the acts and omissions of its employees, agents and other persons performing any of the Services under a contract with the Contractor. 3. Compensation. The City shall pay the Contractor an amount not to exceed One Million Dollars and Zero Cents ($1,000,000.00) for the Services at the rates set forth in the Fee Proposal, attached hereto as a part of Exhibit A and incorporated herein by reference. Well Rehabilitation and Repair Services Contract No. 32600208 Empire Pump Corporation 1 4. Payments. The City shall pay the Contractor monthly, based upon work performed and completed to date, and upon submission and approval of invoices. All invoices shall document and itemize all work completed to date. Each invoice statement shall include a record of time expended and work performed in sufficient detail to justify payment. 5. Safety Plan. The Contractor shall provide the Services in accordance with a safety plan that is National Standards Institute, and National Institute for Occupational Safety and Health standards. If, in the Contractor the Contractor shall notify the City, in writing, describing the reasons a safety plan is unnecessary. The City reserves the right to request a safety plan following such notification. 6. Documents. All documents, including any intellectual property rights thereto, prepared and submitted to the City pursuant to this Agreement shall be the property of the City. The City may use such documents for other purposes without further compensation to the Contractor; however, any reuse without written verification or adaptation by the Contractor for the specific purpose intended will be at the City the Contractor. 7. Contractor Personnel. The Contractor shall provide experienced personnel, capable of and devoted to the successful performance of the Services under this Agreement. The Contractor agrees to assign specific individuals to key positions. If deemed qualified, the Contractor is encouraged to hire City residents to fill vacant positions at all levels. The Contractor agrees that, upon commencement of the Services to be performed under this Agreement, key personnel will not be removed or replaced without prior written notice to the City. If key personnel are not available to perform the Services for a continuous period exceeding 30 calendar days, or are expected to devote substantially less effort to the Services than initially anticipated, the Contractor shall immediately notify the City of same and shall, subject to the concurrence of the City, replace such personnel with personnel possessing substantially equal ability and qualifications. 8. Inspection; Acceptance. All work shall be subject to inspection and acceptance by the City at reasonable times during the Contractor Contractor shall provide and maintain a self-inspection system that is acceptable to the City. 9. Licenses. The Contractor shall maintain in current status all federal, state, and local licenses and permits required for the operation of the business conducted by the Contractor. The City has no obligation to provide the Contractor, its employees, or subcontractors any business registrations or licenses required to perform the specific services set forth in this Agreement. 10. Materials; Equipment. The Contractor shall provide, pay for, and insure under the requisite laws and regulations all labor, materials, equipment, tools, transportation, and other facilities and services necessary for the proper execution and completion of the Services. 11. Performance Warranty. In addition to any specific obligations set forth in Exhibit A, the Contractor warrants that the Services rendered will conform to the requirements of this Well Rehabilitation and Repair Services Contract No. 32600208 Empire Pump Corporation 2 Agreement and shall be carried out with the care and skill ordinarily used by members of the same profession practicing under similar circumstances at the same time and in the same locality. 12. Indemnification. To the fullest extent permitted by law, the Contractor shall indemnify, defend and hold harmless the City and each council member, officer, employee, or agent thereof (the City , and against any and all losses, claims, damages, liabilities, costs, and expenses (including, but not any such Indemnified Party may become subject, under any theory of liability whatsoever s (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, in connection with the work or services of the Contractor, its officers, employees, agents, or any tier of subcontractor 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. 13. Insurance. 13.1 General. A. Insurer Qualifications. Without limiting any obligations or liabilities of the Contractor, the Contractor shall purchase and maintain, at its own expense, hereinafter stipulated minimum insurance with insurance companies authorized to do business in the State of Arizona pursuant to ARIZ. REV. STAT. § 20-206, as amended, with an AM Best, Inc. rating of A- or above with policies and forms satisfactory to the City. Failure to maintain insurance as specified herein may result in termination of this Agreement at the City B. No Representation of Coverage Adequacy. By requiring insurance herein, or by approving or expressing satisfaction with insurance policies and forms pursuant to the provisions of this agreement, the City does not represent that coverage and limits will be adequate to protect the Contractor. The City 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 the 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. C. Additional Insured Compensation insurance and Professional Liability insurance, if applicable, shall name, to the fullest extent permitted by law for claims arising out of the performance of this Agreement, the City, its agents, representatives, officers, directors, officials and employees as Additional Named Insured as specified under the respective coverage sections of this Agreement. D. Coverage Term. All insurance required herein shall be maintained in full force and effect until all work or services required to be performed under the terms Well Rehabilitation and Repair Services Contract No. 32600208 Empire Pump Corporation 3 of this Agreement are satisfactorily performed, completed, and formally accepted by the City, unless specified otherwise in this Agreement. E. Primary Insurance. The Contractor insurance with respect to performance of this Agreement and in the protection of the City as an Additional Insured. F. Claims Made. In the event any insurance policies required by this coverage in force or purchasing an extended reporting option, for three years past completion and acceptance of the services. Such continuing coverage shall be evidenced by submission of annual Certificates of Insurance and necessary endorsements citing applicable coverage is in force and contains the provisions as required herein for the three- year period. G. Waiver. All policies, except for Professional Liability, including (subrogation) against the City, its agents, representatives, officials, officers, and employees for any claims arising out of the work or services of the Contractor. The Contractor shall arrange to have such subrogation waivers incorporated into each policy via formal written endorsement thereto. H. Policy Deductibles and/or Self-Insured Retentions. The policies set forth in these requirements may provide coverage that contains deductibles or self-insured retention amounts. Such deductibles or self-insured retention shall not be applicable with respect to the policy limits provided to the City. The Contractor shall be solely responsible for any such deductible or self-insured retention amount. I. Use of Subcontractors. If any work under this Agreement is subcontracted in any way, the Contractor shall execute written agreements with its subcontractors containing the indemnification provisions set forth in this Section and insurance requirements set forth herein protecting the City and the Contractor. The Contractor shall be responsible for executing any agreements with its subcontractors and obtaining certificates of insurance verifying the insurance requirements. J. Evidence of Insurance. Prior to commencing any work or services under this Agreement, the Contractor will provide the City with suitable evidence of insurance in the form of certificates of insurance and a copy of the declaration page(s) of the insurance policies as required by this Agreement, issued by the Contractor insurer(s) as evidence that policies are placed with acceptable insurers as specified herein and provide the required coverages, conditions and limits of coverage specified in this Agreement and that such coverage and provisions are in full force and effect. Confidential information such as the policy premium may be redacted from the declaration page(s) of each insurance policy, provided that such redactions do not alter any of the information required by this Agreement. The City shall reasonably rely upon the certificates of insurance and declaration page(s) of the insurance policies as evidence of coverage but such acceptance and reliance shall not waive or alter in any way the insurance requirements Well Rehabilitation and Repair Services Contract No. 32600208 Empire Pump Corporation 4 or obligations of this Agreement. If any of the policies required by this Agreement expire during the life of this Agreement, it shall be the Contractor renewal certificates and declaration page(s) to the City 30 days prior to the expiration date. All certificates of insurance and declarations required by this Agreement shall be identified by referencing this Agreement. A $25.00 administrative fee shall be assessed for all certificates or declarations received without the appropriate reference to this Agreement. Additionally, certificates of insurance and declaration page(s) of the insurance policies submitted without referencing this Agreement will be subject to rejection and may be returned or discarded. Certificates of insurance and declaration page(s) shall specifically include the following provisions: (1) The City, its agents, representatives, officers, directors, officials, and employees are Additional Insureds as follows: (a) Commercial General Liability Under Insurance 4 13 or equivalent. (b) Auto Liability Under ISO Form CA 20 48 or equivalent. (c) Excess Liability Follow Form to underlying insurance. (2) The Contractor with respect to performance of this Agreement. (3) All policies, except for Professional Liability, including the City, its agents, representatives, officers, officials, and employees for any claims arising out of work or services performed by the Contractor under this Agreement. ACORD certificate of insurance form 25 (2014/01) is preferred. If ACORD certificate of insurance form 25 (2001/08) than ACORD form shall have similar restrictive language deleted. K. Endorsements. The Contractor shall provide the City with the necessary endorsements to ensure the City is provided the insurance coverage set forth in this Section 13. 13.2 Required Insurance Coverage. A. Commercial General Liability. The Contractor shall maintain 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 Well Rehabilitation and Repair Services Contract No. 32600208 Empire Pump Corporation 5 shall cover liability arising from premises, operations, independent contractors, products- completed operations, personal injury, and advertising injury. Coverage under the policy will be at least as broad as ISO policy form CG 00 010 93 or equivalent thereof, including claims arising out of the performance of this Agreement, the City, its agents, representatives, officers, officials, and employees shall be cited as an Additional Insured under ISO, Commercial General Liability Additional Insured Endorsement form CG 20 10 04 13, or equivalent, which shall read as an insured the person or organization shown in the Schedule, but only with respect to If any Excess insurance is utilized to fulfill the requirements of this subsection, such Excess insurance shall be B. Vehicle Liability. The Contractor shall maintain Business Automobile Liability insurance with a limit of $1,000,000 each occurrence on the Contractor , and non-owned vehicles assigned to or used in the performance of the Contractor thereof. To the fullest extent allowed by law, for claims arising out of the performance of this Agreement, the City, its agents, representatives, officers, directors, officials, and employees shall be cited as an Additional Insured under ISO Business Auto policy Designated Insured Endorsement form CA 20 48 or equivalent. If any Excess insurance is utilized to fulfill the requirements of this subsection, such Excess insurance shall be C. Professional Liability. If this Agreement is the subject of any professional services or work, or if the Contractor engages in any professional services or work in any way related to performing the work under this Agreement, the Contractor shall maintain Professional Liability insurance covering negligent errors and omissions arising out of the Services performed by the Contractor, or anyone employed by the Contractor, or anyone for whose negligent acts, mistakes, errors, and omissions the Contractor is legally liable, with an unimpaired liability insurance limit of $2,000,000 each claim and $2,000,000 annual aggregate. D. . If the Contractor employs the Contractor by federal and state statutes having jurisdiction over the Contractor in the performance of work or services under this Agreement and shall also maintain Employers Liability Insurance of not less than $500,000 for each accident, $500,000 disease for each employee and $1,000,000 disease policy limit. 13.3 Cancellation and Expiration Notice. The Contractor shall provide at least 30 days prior written notice to the City before insurance required herein expires, is canceled, or is materially changed. Well Rehabilitation and Repair Services Contract No. 32600208 Empire Pump Corporation 6 14. Termination; Cancellation. The City may, by written notice to the Contractor as set forth in this Section, terminate this Agreement in whole or in part. 14.1 For City . This Agreement is for the convenience of the City and, as such, may be terminated without cause after receipt by the Contractor of written notice by the City. Upon termination for convenience, the Contractor shall be paid for all undisputed services performed to the termination date. 14.2 For Cause. If either party fails to perform any obligation pursuant to this Agreement and such party fails to cure its nonperformance within 30 days after notice of nonperformance is given by the non-defaulting party, such party will be in default. In the event of such default, the non-defaulting party may terminate this Agreement immediately for cause and will have all remedies that are available to it at law or in equity including, without limitation, the remedy of specific performance. If the natur it cannot reasonably be cured within 30 days, then the defaulting party will have such additional periods of time as may be reasonably necessary under the circumstances, provided the defaulting party immediately (A) provides written notice to the non-defaulting party and (B) commences to cure its nonperformance and thereafter diligently continues to completion the cure of its nonperformance. In no event shall any such cure period exceed 90 days. In the event of such termination for cause, payment shall be made by the City to the Contractor for the undisputed portion of its fee due as of the termination date. 14.3 Due to Work Stoppage. This Agreement may be terminated by the City the Contractor in the event that the Services are permanently abandoned. If the Contractor abandons the Services without the consent of the City, the Contractor shall be liable for all actual, incidental, and consequential damages arising from or related to said abandonment, including, but not limited to: (A) the difference between the cost of a replacement Contractor to complete the Services and the contract price for the Contractor under this Agreement; and (B) any additional charges, costs, fees or expenses for labor, materials or professional services incurred by the City as a result of delays caused by abandonment of the Services by the Contractor. The City shall use its best efforts to replace the Contractor within a reasonable time. 14.4 Conflict of Interest. This Agreement is subject to the provisions of ARIZ. REV. STAT. § 38-511. The City may cancel this Agreement without penalty or further obligations by the City 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 City or any of its departments or agencies is, at any time while this Agreement or any extension of this Agreement is in effect, an employee of any other party to this Agreement in any capacity or a Contractor to any other party of this Agreement with respect to the subject matter of this Agreement. 14.5 Gratuities. The City may, by written notice to the Contractor, cancel this Agreement if it is found by the City that gratuities, in the form of economic opportunity, future employment, entertainment, gifts, or otherwise, were offered or given by the Contractor or any agent or representative of the Contractor to any officer, agent or employee of the City for the purpose of securing this Agreement. In the event this Agreement is canceled by the City pursuant to this provision, the City shall be entitled, in addition to any other rights and remedies, to recover and withhold from the Contractor an amount equal to 150% of the gratuity. Well Rehabilitation and Repair Services Contract No. 32600208 Empire Pump Corporation 7 14.6 Agreement Subject to Appropriation. The City is obligated only to pay its obligations set forth in this Agreement as may lawfully be made from funds appropriated and budgeted for that purpose during the City -current fiscal year. The City discretion of the City concerning budgeted purposes and appropriation of funds. Should the City elect not to appropriate and budget funds to pay its Agreement obligations, this Agreement shall be deemed terminated at the end of the then-current fiscal year term for which such funds were appropriated and budgeted for such purpose and the City shall be relieved of any subsequent obligation under this Agreement. The parties agree that the City has no obligation or duty of good faith to budget or appropriate the payment of the City is Agreement in any budget in any fiscal year other than the fiscal year in which this Agreement is executed and delivered. The City shall be the sole judge and authority in determining the availability of funds for its obligations under this Agreement. The City shall keep the Contractor informed as to the availability of funds for this Agreement. The obligation of the City to make any payment pursuant to this Agreement is not a general obligation or indebtedness of the City. The Contractor hereby waives any and all rights to bring any claim against the City from or relating in any way to the City s termination of this Agreement pursuant to this Section. 14.7 Obligations Upon Receipt of Termination Notice. Upon receipt of a notice of termination as set forth above, the Contractor shall (A) immediately discontinue all Services affected (unless the notice directs otherwise), and (B) deliver to the City copies of all data, reports, calculations, drawings, specifications, and estimates entirely or partially completed, together with all unused materials supplied by the City, related to the Services including any completed divisible part of the Services which can be deemed to stand alone (the completed divisible parts of the Services will be determined by both parties at the time of termination). Such termination shall not relieve the Contractor of liability for errors and omissions. Any use of incomplete documents for the Services or for any other project without the specific written authorization by the Contractor will be without liability or legal exposure to the Contractor. The Contractor shall appraise the work it has completed and submit the appraisal to the City for evaluation. 15. Suspension of Work. 15.1 Order to Suspend. The City may, for its convenience, order the Contractor, in writing, to suspend all or any part of the Services for such period of time as it may determine to be appropriate. 15.2 Adjustment to Contract Sum. 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 City 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 (A) to the extent that performance was suspended or delayed for any other cause, including the fault or negligence of the Contractor, or (B) for which a change order is executed. Well Rehabilitation and Repair Services Contract No. 32600208 Empire Pump Corporation 8 16. Miscellaneous. 16.1 Independent Contractor. It is clearly understood that each party will act in its individual capacity and not as an agent, employee, partner, joint venturer, or associate of the other. An employee or agent of one party shall not be deemed or construed to be the employee or agent of the other for any purpose whatsoever. The Contractor 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 City. The Contractor, its employees, and subcontractors are not entitled City. The City does not have the authority to supervise or control the actual work of the Contractor, its employees or subcontractors. The Contractor, and not the City, shall determine the time of its performance of the services provided under this Agreement so long as the Contractor meets the requirements of its agreed Scope of Work as set forth in Section 2 and in Exhibit A. The Contractor is neither prohibited from entering into other contracts nor prohibited from practicing its profession elsewhere. The City and the Contractor do not intend to nor will they combine business operations under this Agreement. 16.2 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. 16.3 Laws and Regulations. The Contractor shall keep fully informed and shall at all times during the performance of its duties under this Agreement ensure that it and any person for whom the Contractor 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 City and County ordinances and regulations, (B) existing and future State and Federal laws, and (C) existing and future OSHA standards. 16.4 Amendments. This Agreement may be modified only by a written amendment signed by persons duly authorized to enter into contracts on behalf of the City and the Contractor. 16.5 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. 16.6 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 that may remain in effect without the invalid provision or application. 16.7 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 Well Rehabilitation and Repair Services Contract No. 32600208 Empire Pump Corporation 9 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. 16.8 Assignment; Delegation. No right or interest in this Agreement shall be assigned or delegated by the Contractor without prior, written permission of the City, signed by the City Manager. Any attempted assignment or delegation by the Contractor in violation of this provision shall be a breach of this Agreement by the Contractor. 16.9 Subcontracts. No subcontract shall be entered into by the Contractor with any other party to furnish any of the material or services specified herein without the prior written approval of the City. The Contractor is responsible for performance under this Agreement whether or not subcontractors are used. Failure to pay subcontractors in a timely manner pursuant to any subcontract shall be a material breach of this Agreement by the Contractor. 16.10 Rights and Remedies. No provision in this Agreement shall be construed, expressly or by implication, as waiver by the City 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 City 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 City es, shall not release the Contractor from any responsibilities or obligations imposed by this Agreement or by law, and shall not be deemed a waiver of any right of the City to insist upon the strict performance of this Agreement. 16.11 . 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. 16.12 Liens. All materials or services shall be free of all liens and, if the City requests, a formal release of all liens shall be delivered to the City. 16.13 Offset. A. Offset for Damages. In addition to all other remedies at law or equity, the City may offset from any money due to the Contractor any amounts the Contractor owes to the City for damages that have been reduced to a judgment resulting from breach or deficiencies in performance or breach of any obligation under this Agreement. B. Offset for Delinquent Fees or Taxes. The City may offset from any money due to the Contractor any amounts the Contractor owes to the City for delinquent fees, transaction privilege use taxes, and property taxes, including any interest or penalties. Well Rehabilitation and Repair Services Contract No. 32600208 Empire Pump Corporation 10 16.14 Notices and Requests. Any notice or other communication required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given if (A) delivered to the party at the address set forth below, (B) deposited in the U.S. Mail, registered or certified, return receipt requested, to the address set forth below, or (C) given to a recognized and reputable overnight delivery service, to the address set forth below: If to the City: City of Buckeye 530 E. Monroe Avenue Buckeye, Arizona 85236 Email: contracts@buckeyeaz.gov With copy to: City of Buckeye 530 E. Monroe Avenue Buckeye, Arizona 85326 Attn: City Attorney Email: legal@buckeyeaz.gov If to Contractor: Empire Pump Corporation 2849 South 49th Avenue Phoenix, Arizona 85043 Attn: JoDee Turner, Office Manager Email: jodee@empirepumpcorp.com 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 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. 16.15 Confidentiality of Records. The Contractor shall establish and maintain procedures and controls that are acceptable to the City for the purpose of ensuring that information contained in its records or obtained from the City or from others in carrying out its obligations under this Agreement shall not be used or disclosed by it, its agents, officers, or employees, except as required to perform the Contractor information should be referred to the City. The Contractor also agrees that any information pertaining to individual persons shall not be divulged other than to employees or officers of the Contractor as needed for the performance of duties under this Agreement. 16.16 Information Technology. Well Rehabilitation and Repair Services Contract No. 32600208 Empire Pump Corporation 11 A. Limited Access. If necessary for the fulfillment of this Agreement, the City may provide the Contractor with non-exclusive, limited access to the City information technology infrastructure. The Contractor understands and agrees to abide by all City policies, standards, regulations, and restrictions regarding access and usage of the City Contractor shall enforce all such policies, standards, regulations, and restrictions with all the Contractor employees, agents, or any tier of subcontractor granted access in the performance of this Agreement and shall be granted and authorized only such access as may be necessary for the purpose of fulfilling the requirements of this Agreement. B. Permitted Access. The Contractor subcontractors must receive prior, written approval from the City before being granted access to the City City, in its sole discretion, shall determine accessibility and limitations thereto. The Contractor agrees that the requirements of this Section shall be incorporated into all subcontractor/subcontractor agreements entered into by the Contractor. It is further agreed that a violation of this Section shall be deemed to cause irreparable harm that justifies injunctive relief in court. Notwithstanding the provisions in Section 14, a violation of this Section may result in immediate termination of this Agreement without notice. C. Data Confidentiality. All City data and technical information, regardless of form, including originals, images, and reproductions, prepared by, obtained by, or transmitted to the Contractor in connection with this Agreement, are confidential, proprietary information owned by the City. Except as specifically provided in this Agreement, the Contractor shall not, without the prior, written consent of the City Manager or authorized designee, (A) disclose data generated in the performance of the services to any third party, or (B) use City data and information. D. Data Security. Personal identifying information, financial account information, or restricted City information, whether in electronic format or hard copy, must be secured and protected at all times to avoid unauthorized access. At a minimum, the Contractor must encrypt and/or password-protect electronic files. This includes data saved to laptop computers, computerized devices, or removable storage devices. When City information, regardless of its format, is no longer required by the Contractor to execute the work contracted by the City, the information must be redacted or destroyed through appropriate and secure methods to ensure the information cannot be viewed, accessed, or reconstructed. E. Compromised Security. In the event that data collected or obtained by the Contractor in connection with this Agreement is believed to have been compromised, the Contractor shall immediately notify the City Manager, or authorized City designee. The Contractor agrees to reimburse the City for any costs incurred by the City to investigate potential breaches of this data by the Contractor and, where applicable, the cost of notifying and/or assisting individuals who may be impacted by the breach. F. Disengagement. In the event this Agreement is terminated by either party, the Contractor agrees to confer back to the City all of its data, in usable and Well Rehabilitation and Repair Services Contract No. 32600208 Empire Pump Corporation 12 normalized format, within 30 days of notice of termination. There shall be no charge for the return of City data to the City. G. Survival. The obligations of the Contractor under this Section 16.16 shall survive the termination of this Agreement. 16.17 Records and Audit Rights. To ensure that the Contractor and its subcontractors are complying with the warranty under subsection 16.18, the Contractor other supporting evidence relating to this Agreement, including the papers of any of the Contractor and subject to audit and/or reproduction during normal working hours by the City, to the extent necessary to adequately permit (A) evaluation and verification of any invoices, payments or claims based on the Contractor and overhead allocations) incurred, or units expended directly in the performance of work under this Agreement and (B) evaluation of the Contractor Arizona employer sanctions laws referenced in subsection 16.18. To the extent necessary for the City to audit Records as set forth in this subsection, the Contractor and its subcontractors hereby waive any rights to keep such Records confidential. For the purpose of evaluating or verifying such actual or claimed costs or units expended, the City shall have access to said Records, even if of the work and until three years after the date of final payment by the City to the Contractor pursuant to this Agreement. The Contractor and its subcontractors shall provide the City with adequate and appropriate workspace so that the City can conduct audits in compliance with the provisions of this subsection. The City shall give the Contractor or its subcontractors reasonable advance notice of intended audits. The Contractor shall require its subcontractors to comply with the provisions of this subsection by insertion of the requirements hereof in any subcontract pursuant to this Agreement. 16.18 E-Verify Requirements. To the extent applicable under ARIZ. REV. STAT. § 41-4401, the Contractor 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). The Contractor 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 City. 16.19 Israel. To the extent ARIZ. REV. STAT. § 35-393 through § 35-393.03 are applicable, the parties hereby certify that they are not currently engaged in, and agree for the duration of this Agreement to not engage in, a boycott of goods or services from Israel, as that term is defined in ARIZ. REV. STAT. § 35-393. 16.20 Conflicting Terms. In the event of any inconsistency, conflict, or ambiguity among the terms of this Agreement, any amendments, the Scope of Work, any City-approved Purchase Order, or the Fee Proposal, the documents shall govern in the order listed herein. Well Rehabilitation and Repair Services Contract No. 32600208 Empire Pump Corporation 13 16.21 Time is of the Essence. The timely completion of the Services is of critical importance to the economic circumstances of the City. 16.22 Meaning of Terms. References made in the singular shall include the plural and the masculine shall include the feminine or the neuter. 16.23 Non-Exclusive Contract. This Agreement is entered into with the understanding and agreement that it is for the sole convenience of the City. The City reserves the right to obtain like goods and services from another source when necessary. 16.24 Forced Labor of Ethnic Uyghurs. To the extent applicable under ARIZ. REV. STAT. § 35-394, the Vendor warrants and certifies that it does not currently, and agrees for the duration of this Agreement that it will not use the forced labor, any goods or services produced by the forced labor, or any contractors, subcontractors, or suppliers that use the forced labor or any China. If the Vendor becomes aware that it is not in compliance with this paragraph, the Vendor shall notify the Town of the noncompliance within five business days of becoming aware of it. If the Vendor fails to provide a written certification that the Vendor has remedied the noncompliance within 180 days after that, this Agreement shall terminate unless the termination date of this Agreement occurs before the end of the remedy, in which case this Agreement terminates on the contract termination date. 16.25 Clickwrap Terms Excluded. In the event the Contractor terms of sale or service agreement, such terms of sale or service shall not be binding upon the City. No oral agreement, issued or approved contract or the terms of this Professional Services Agreement. [SIGNATURES ON FOLLOWING PAGE] Well Rehabilitation and Repair Services Contract No. 32600208 Empire Pump Corporation 14 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first set forth above. City Contractor CITY OF BUCKEYE, EMPIRE PUMP CORPORATION, an Arizona municipal corporation an Arizona corporation By: By: Its:________________________________ Its: ATTEST: By: Its:__________________________________ RECOMMENDED: By: Its:__________________________________ APPROVED AS TO FORM: By: Its:__________________________________ Well Rehabilitation and Repair Services Contract No. 32600208 Empire Pump Corporation 15 EXHIBIT A TO PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF BUCKEYE AND EMPIRE PUMP CORPORATION [Fee Proposal] See following page. Well Rehabilitation and Repair Services Contract No. 32600208 Empire Pump Corporation 16 SECTION D: PRICING Pricing is provided in the Bid Table as required by Section 9 of the RFP. Please see the attached Proposal Submittal Form and Bid Table for complete pricing information. Well Rehabilitation and Repair Services Contract No. 32600208 Empire Pump Corporation 17