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LINKING AGREEMENT
BETWEEN
THE CITY OF GLENDALE, ARIZONA
AND
ELLIOT ELECTRIC SUPPLY, INC.
THIS LINKING AGREEMENT (this “Agreement”) is entered into as of this day of
, 2021, between the City of Glendale, an Arizona municipal corporation (the “City”), and Elliot
Electric Supply, Inc., a(n) ‘Texas Corporation authorized to do business in Arizona (“Contractor”),
collectively, the “Parties.”
RECITALS
On May 4, 2021under S.A.V.E Cooperative Purchasing Agreement, the City of Mesa entered
into a contract with Contractor to purchase the goods and services described in the Industrial
and Non-Industrial Electrical and Process/SCADA Controls Equipment, Parts, Supplies and
Tools Agreement No. 2021062 (“Cooperative Purchasing Agreement”), which is attached
hereto as Exhibit A. The Cooperative Purchasing Agreement permits its cooperative use by
other governmental agencies including the City.
Section 2-149 of the City’s Procurement Code permits the Materials Manager to procure goods
and setvices by participating with other governmental units in cooperative purchasing
agreements when the best interests of the City would be served.
Section 2-149 also provides that the Materials Manager may enter into such cooperative
agreements without meeting the formal or informal solicitation and bid requirements of
Glendale City Code Sections 2-145 and 2-146.
The City desires to contract with Contractor for supplies or services identical, or nearly
identical, to the supplies or services Contractor is providing other units of government under
the Cooperative Purchasing Agreement. Contractor consents to the City’s utilization of the
Cooperative Purchasing Agreement as the basis of this Agreement, and Contractor desires to
enter into this Agreement to provide the supplies and services set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated by reference,
and the covenants and promises contained in this Linking Agreement, the parties agree as follows:
1.
Term of Agreement. The City is purchasing supplies and/or services from Contractor
pursuant to the Cooperative Purchasing Agreement. According to the Cooperative
Purchasing Agreement, purchases can be made by governmental entities from the date of
award, which was May 4, 2021, until the date the contract expires on May 3, 2024 unless the
term of the Cooperative Purchasing Agreement is extended by the mutual agreement of the
original contracting parties. The Cooperative Purchasing Agreement, however, may not be
extended beyond May 3, 2026. The initial period of this Agreement, therefore, is the period
from the Effective Date of this Agreement until May 3, 2024. The City may renew the term
1/2/2020
of this Agreement for a maximum of (2) two years until the Cooperative Purchasing
Agreement expires on May 3, 2026. Glendale renewals are not automatic and shall only occur
if the City gives the Contractor notice of its intent to renew. The City may give the Contractor
notice of its intent to renew this Agreement 30 days prior to the anniversary of the Effective
Date to effectuate such renewal.
Scope of Work; Terms, Conditions, and Specifications.
A. Contractor shall provide City the supplies and/or services identified in the Scope of
Work attached as Exhibit B.
B. Contractor agrees to comply with all the terms, conditions and specifications of the
Cooperative Purchasing Agreement. Such terms, conditions and specifications are
specifically incorporated into and are an enforceable part of this Agreement.
Compensation.
A. City shall pay Contractor compensation at the same rate and on the same schedule as
provided in the Cooperative Purchasing Agreement, which is attached heteto as
Exhibit C.
B. The total purchase price for the supplies and/or services purchased under this
Agreement shall not exceed One Hundred and Fifty Thousand dollars ($150,000) for
the entire term of the Agreement (initial term plus any renewals).
Cancellation. This Agreement may be cancelled pursuant to A.R.S. § 38-511.
Non-discrimination. Contractor must not discriminate against any employee or applicant for
employment on the basis of race, color, religion, sex, national origin, age, marital status, sexual
orientation, gender identity or expression, genetic characteristics, familial status, U.S. military
veteran status or any disability. Contractor will require any Sub-contractor to be bound to the
same fequirements as stated within this section. Contractor, and on behalf of any
subcontractors, warrants compliance with this section.
Insurance Certificate. A certificate of insurance applying to this Agreement must be provided
to the City prior to the Effective Date.
E-verify. Contractor complies with A.R.S. § 23-214 and agrees to comply with the
requirements of A.R.S. § 41-4401.
No Boycott of Israel. To the extent A.R.S § 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 the
Agreement to not engage in, a boycott of goods or services from Israel, as that term is defined
in A.R.S § 35-393.
4/29/2021
9. Attestation_of PCI] Compliance. When applicable, the Contractor will provide the City
annually with a Payment Card Industry Data Security Standard (PCI ISS) attestation of
compliance certificate signed by an officer of Contractor with oversight responsibility.
10. Notices. Any notices that must be provided under this Agreement shall he sent to the Parties’
respective authorized representatives at the address listed below:
City of Glendale
c/oJulie Ossege
7070 W. Northern Avenue
Glendale AZ 85303
And
Elliott Electric Supply, Inc.
c/o Jenny Alig
2250 W. Broadway Rd., Suite 102
Mesa AZ 85202
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year
set forth above.
“City” “Contractor”
City of Glendale, an Arizona Elliott Electric Supply, Inc.,
municipal corporation a ‘l'exas Corporation
By: . By: % AQ E
Kevin R. Phelps Name: Robert A. Flores
City Manager Title: Authorized Representative
ATTEST:
Julic K. Bower (SEAL)
City Clerk
APPROVED AS ‘lO FORM:
Michael D. Bailey
City Attorney
4/29/2021
LINKING AGREEMENT
BETWEEN
THE CITY OF GLENDALE, ARIZONA
AND
ELLIOT ELECTRIC SUPPLY, INC.
EXHIBIT A
Industrial and Non-Industrial Electrical and Process/SCADA Controls Equipment, Parts, Supplies
and Tools, City of Mesa Agreement No. 2021062
4/29/2021
INDUSTRIAL
~~
mesa-az
AGREEMENT PURSUANT TO SOLICITATION
L - ELECTRICAL AND PROCESS/SCADA CONTROLS
EQUIPMENT, PARTS, SUPPLIES AND TOOLS
CITY OF MESA, Arizona (“City”)
Department Name
. Mailing Address
Delivery Address
Attention
E-Mail
Phone
With a copy to:
City of Mesa — Purchasing Division
P.O. Box 1466
Mesa, AZ 85211-1466
20 East Main St, Suite 450
Mesa, AZ 85201
Ted Stallings, CPPB
Procurement Officer II
Ted. Stallings@MesaAZ.gov
(480) 644-2815
City of Mesa ~ Water Resources
Attn: Greg Flynn, Sr. Fiscal Analyst
P.O. Box 1466
Mesa, AZ 85211-1466
Greg.Flypyn@MesaAZ.gov
AND
ELLIOTT ELECTRIC SUPPLY, (“Contractor”)
| Mailing Address
Remit to Address
Attention
E-Mail
Phone
2250 W. Broadway Rd, Suite 102
Mesa, AZ 85202
PO Box 206524
Dallas, TX 75320
Dennis Stevens
dennisstevens@elliottelectric.com
602.647.7505
2021062 Page 1 of 27
CITY OF MESA AGREEMENT PURSUANT TO SOLICITATION
This Agreement pursuant to solicitation (‘Agreement’) is entered into this 3% day of May 2021, by and
between the City of Mesa, Arizona, an Arizona municipal corporation (“City”), and Elliott Electric Supply, an
AZ company (“Contractor”). The City and Contractor are each a “Party” to the Agreement or together are
“Parties” to the Agreement.
A.
RECITALS
The City issued solicitation number 2021002 (“Solicitation”) for INDUSTRIAL AND NON-INDUSTRIAL
ELECTRICAL AND _PROCESS/SCADA CONTROLS, EQUIPMENT, PARTS, SUPPLIES AND
TOOLS to which Contractor provided a response (“Response”); and
The City Selected Contractor's Response as being in the best interest of the City and wishes to engage
Contractor in providing the services/materials described in the Solicitation and Response.
In consideration of the reciprocal promises contained in the Agreement, and for other valuable and good
consideration, which the Parties acknowledge the receipt and sufficiency of, the Parties agree to the
following Terms & Conditions.
1.
TERMS & CONDITIONS
Term. This Agreement is for a term beginning on May 4, 2021 and ending on May 3, 2024. The use
of the word “Term” in the Agreement includes the aforementioned period as well as any applicable
extensions or renewals in accordance with this Section 1.
1.1 Renewals. On the mutual written agreement of the Parties, the Term may be renewed up toa
maximum of two (2) years. Any renewal(s) will be a continuation of the same terms and
conditions as in effect immediately prior to the expiration of the then-current term.
1.2 Extension for Procurement Processes. Upon the expiration of the Term of this Agreement,
including any renewals permitted herein, at the City’s sole discretion this Agreement may be
extended on a month-to-month basis for a maximum of six (6) months to allow for the City’s
procurement processes in the selection of a vendor to provide the services/materials provided
under this Agreement. The City will notify the Contractor in writing of its intent to extend the
Agreement at least thirty (30) calendar days prior to the expiration of the Term. Any extension
under this Subsection 1.2 will be a continuation of the same terms and conditions as in effect
immediately prior to the expiration of the then-current term.
Scope of Work. The Contractor will provide the necessary staff, services and associated resources
to provide the City with the services, materials, and obligations attached to this Agreement as Exhibit
A ("Scope of Work”) Contractor will be responsible for all costs and expenses incurred by Contractor
that are incident to the performance of the Scope of Work unless otherwise stated in Exhibit A.
Contractor will supply all equipment and instrumentalities necessary to perform the Scope of Work. If
set forth in Exhibit A, the City will provide Contractor's personnel with adequate workspace and such
other related facilities as may be required by Contractor to carry out the Scope of Work.
The Agreement is based on the Solicitation and Response which are hereby incorporated by reference
into the Agreement as if written out and included herein. In addition to the requirements specifically set
forth in the Scope of Work, the Parties acknowledge and agree that the Contractor shall perform in
accordance with all terms, conditions, specifications and other requirements set forth within the
Solicitation and Response unless modified herein.
Orders. Orders be placed with the Contractor by either a: (i) Purchase Order when for a one-time
purchase; (ii) Notice to Proceed, or (iii) Delivery Order off of a Master Agreement for Requirement
Contract where multiple as-needed orders will be placed with the Contractor. The City may use the
Internet to communicate with Contractor and to place orders as permitted under this Agreement
2021062 Page 2 of 27
4. Document Order of Precedence. In the event of any inconsistency between the terms of the body of
the Agreement, the Exhibits, the Solicitation, and Response, the language of the documents will control
in the following order.
a.
b.
c.
d.
Agreement
Exhibits
1. Mesa Standard Terms & Conditions
2. Scope of Work
3. Other Exhibits not listed above
Solicitation including any addenda
Contractor Response
5. Payment.
5.1
5.2
5.3
5.4
General. Subject to the provisions of the Agreement, the City will pay Contractor the sum(s)
described in Exhibit B (“Pricing”) in consideration of Contractor’s performance of the Scope of
Work during the Term.
Prices. All pricing shall be firm for the Term and all extensions or renewals of the Term except
where otherwise provided in this Agreement and include all costs of the Contractor providing
the materials/service including transportation, insurance and warranty costs. No fuel
surcharges will be accepted unless allowed in this Agreement. The City shall not be invoiced
at prices higher than those stated in the Agreement.
The Contractor further agrees that any reductions in the price of the materials or services
covered by this Agreement will apply to the undelivered balance. The Contractor shall promptly
notify the City of such price reductions.
No price modifications will be accepted without proper request by the Contractor and response
by the City’s Purchasing Division.
Price Adjustment. Any requests for reasonable price adjustments must be submitted in
accordance with this Section 5.3. Requests for adjustment in cost of labor and/or materials
must be supported by appropriate documentation. There is no guarantee the City will accept
a price adjustment therefore Contractor should be prepared for the Pricing to be firm over the
Term of the Agreement. The City is only willing to entertain price adjustments based on an
increase to Contractor's actual expenses or other reasonable adjustment in providing the
services/materials under the Agreement. If the City agrees to the adjusted price terms, the City
shall issue written approval of the change.
During the ninety (90) to sixty (60) day period prior to Contract annual anniversary date of the
Agreement, the Contractor may submit a written request to the City to allow an increase to the
prices in an amount not to exceed the twelve (12) month change in the Consumer Price Index
for Ati Urban Consumers (CPI-U), US City Average, Ail items, Not Seasonaily Adjusted as
published by the U.S. Department of Labor, Bureau of Labor Statistics
(http:/www.bls.gov/cpi/home.htm). The City shall review the request for adjustment and
Trespond in writing; such response and approval shall not be unreasonably withheld.
Renewal and Extension Pricing, Any extension of the Agreement will be at the same pricing
as the initial Term. If the Agreement is renewed in accordance with Section 1, pricing may be
adjusted for amounts other than inflation that represent actual costs to the Contractor based
on the mutual agreement of the parties. The Contractor may submit a request for a price
adjustment along with appropriate supporting documentation demonstrating the cost to the
Contractor. Renewal prices shall be firm for the term of the renewal period and may be adjusted
2021062 Page 3 of 27
thereafter as outlined in the previous section. There is no guarantee the City will accept a price
adjustment.
5.5 Invoices. Payment will be made to Contractor following the City’s receipt of a properly
5.6
5.7
completed invoice. No terms set forth in any invoice, purchase order or similar document
issued by Contractor will be deemed accepted by the City; the terms of the contractual
relationship between the Parties are as set forth in this Agreement. Any issues regarding billing
or invoicing must be directed to the City Department/Division requesting the service or material
from the Contractor. A properly completed invoice should contain, at a minimum, all of the
following:
Contractor name, address, and contact information;
City billing information;
City contract number as listed on the first page of the Agreement;
Invoice number and date;
Payment terms;
Date of service or delivery;
Description of materials or services provided;
If materials provided, the quantity delivered and pricing of each unit;
Applicable Taxes;
If applicable, mileage or travel costs; and
Total amount due.
AT seas eao0TD
Payment of Funds. Contractor acknowledges the City may, at its option and where available
use a Credit Card/Procurement Card to make payment for orders under the Agreement with
no additional charge/fee. Otherwise, payment will be through a traditional method of a check.
Disallowed Costs, Overpayment. If at any time the City determines that a cost for which
payment was made to Contractor is a disallowed cost, such as an overpayment or a charge for
materials/service not in accordance with the Agreement, the City will notify Contractor in writing
of the disallowance; such notice will state the means of correction which may be, but is not
limited to, adjustment of any future claim/invoice submitted by Contractor in the amount of the
disallowance, or to require repayment of the disallowed amount by Contractor. Contractor will
be provided with the opportunity to respond to the notice.
Insurance.
6.1
6.2
6.3
Contractor must obtain and maintain at its expense throughout the term of Contractor's
agreement, at a minimum, the types and amounts of insurance set forth in this Section 6 from
insurance companies authorized to do business in the State of Arizona; the insurance must
cover the materials/service to be provided by Contractor under the Agreement. For any
insurance required under the Agreement, Contractor will name the City of Mesa, its agents,
representatives, officials, volunteers, officers, elected officials, and employees as additional
insured, as evidenced by providing either an additional insured endorsement or proper
insurance policy excerpts.
Nothing in this Section 6 limits Contractor's responsibility to the City. The insurance
requirements herein are minimum requirements for the Agreement and in no way limit any
indemnity promise(s) contained in the Agreement.
The City does not warrant the minimum limits contained herein are sufficient to protect
Contractor and subcontractor(s) from liabilities that might arise out of performance under the
Agreement by Contractor, its agents, representatives, employees, or subcontractor(s).
Contractor is encouraged to purchase additional insurance as Contractor determines may be
necessary.
2021062 Page 4 of 27
6.4 Each insurance policy required under the Agreement must be in effect at or prior to the
execution of the Agreement and remain in effect for the term of the Agreement.
6.5 Prior to the execution of the Agreement, Contractor will provide the City with a Certificate of
Insurance (using an appropriate “ACORD” or equivalent certificate) signed by the issuer with
applicable endorsements. The City reserves the right to request additional copies of any or all
of the policies, endorsements, or notices relating thereto required under the Agreement.
6.6 When the City requires a Certificate of Insurance to be furnished, Contractor's insurance is
primary of all other sources available. When the City is a certificate holder and/or an additional
insured, Contractor agrees no policy will expire, be canceled, or be materially changed to affect
the coverage available without advance written notice to the City.
6.7 The policies required by the Agreement must contain a waiver of transfer rights of recovery
(waiver of subrogation) against the City, its agents, representatives, officials, volunteers,
officers, elected officials, and employees for any claims arising out of the work of Contractor.
6.8 All insurance certificates and applicable endorsements are subject to review and approval by
the City's Risk Management Division.
6.9 Types and Amounts of Insurance. Contractor must obtain and retain throughout the term of
the Agreement, at a minimum, the following:
6.9.1 Worker's compensation insurance in accordance with the provisions of Arizona
law. If Contractor operates with no employees, Contractor must provide the City
with written proof Contractor has no employees. If employees are hired during the
course of this Agreement, Contractor must procure worker's compensations in
accordance with Arizona law.
6.9.2 The Contractor shall maintain at all times during the term of this contract, a
minimum amount of $1 million per occurrence/$2 million aggregate Commercial
General Liability insurance, including Contractual Liability. For General Liability
insurance, the City of Mesa, their agents, officials, volunteers, officers, elected
Officials or employees shall be named as additional insured, as evidenced by
providing an additional insured endorsement.
6.9.3 Automobile liability, bodily injury and property damage with a limit of $1 million per
occurrence including owned, hired and non-owned autos.
Requirements Contract. Contractor acknowledges and agrees the Agreement is a requirements
contract; the Agreement does not guarantee any purchases will be made (minimum or maximum).
Orders will only be placed when the City identifies a need and issues a purchase order or a written
notice to proceed. The City reserves the right to cancel purchase orders or a notice to proceed
within a reasonable period of time of issuance; any such cancellation will be in writing. Should a
purchase order or notice to proceed be canceled, the City agrees to reimburse Contractor for any
actual and documented costs incurred by Contractor. The City will not reimburse Contractor for
any avoidable costs incurred after receipt of cancellation including, but not limited to, lost profits,
shipment of product, or performance of services.
Notices. All notices to be given pursuant to the Agreement will be delivered to the Contractor as
listed on Page 1 of this Agreement. Notice will be delivered pursuant to the requirements set forth
the Mesa Standard Terms and Conditions that is attached to the Agreement as Exhibit C.
Representations of Contractor. To the best of Contractor's knowledge, Contractor agrees that:
2021062 Page 5 of 27
10.
11.
12.
13.
14.
15.
a. Contractor has no obligations, legal or otherwise, inconsistent with the terms of the Agreement
or with Contractor's undertaking of the relationship with the City;
b. Performance of the services called for by the Agreement do not and will not violate any
applicable law, rule, regulation, or any proprietary or other right of any third party;
c. Contractor will not use in the performance of Contractor's responsibilities under the Agreement
any proprietary information or trade secret of a former employer of its employees (other than
City, if applicable); and
d. Contractor has not entered into and will not enter into any agreement, whether oral or written,
in conflict with the Agreement.
Mesa Standard Terms and Conditions. Exhibit C to the Agreement is the Mesa Standard Terms
and Conditions as modified by the Parties, which are incorporated by reference into the Agreement
as though fully set forth herein. In the event of any inconsistency between the terms of the
Agreement and the Mesa Standard Terms and Conditions, the language of the Agreement will
control. The Parties or a Party are referred to as a “party” or “parties” in the Mesa Standard Terms
and Conditions. The Term is referred to as the “term” in the Mesa Standard Terms and Conditions.
Counterparts and Facsimile or Electronic Signatures. This Agreement may be executed in two
(2) or more counterparts, each of which will be deemed an original and all of which, taken together,
will constitute one agreement. A facsimile or other electronically delivered signature to the
Agreement will be deemed an original and binding upon the Party against whom enforcement is
sought.
Incorporation of Recitals and Exhibits. All Recitals and Exhibits to the Agreement are hereby
incorporated by reference into the Agreement as if written out and included herein. In the event of
any inconsistency between the terms of the body of the Agreement and the Exhibits, the language
of the Agreement will control.
Exhibits to this Agreement are the following:
(A) Scope of Work / Technical Specifications
(B) Pricing
(C) Mesa Standard Terms and Conditions
(D) Other
Attorneys’ Fees. The prevailing Party in any litigation arising out of the Agreement will be entitled
to the recovery of its reasonable attorney's fees, court costs, and other litigation related costs and
fees from the other Party.
Additional Acts. The Parties agree to execute promptly such other documents and to perform
such other acts as may be reasonably necessary to carry out the purpose and intent of the
Agreement.
Headings. The headings of the Agreement are for reference only and will not limit or define the
meaning of any provision of the Agreement.
2021062 Page 6 of 27
By executing below, each Party acknowledges that it understands, approves, and accepts all of the terms
of the Agreement and the attached exhibits.
IN WITNESS WHEREOPF, the parties have executed this Agreement as of the date first above written.
CITY OF MESA, ARIZONA
Digitally signed by Edward Quedens
DN: cn=Edward Quedens, o=Ctiy of
Mesa, Arizona, ou=Business Services,
By: | email=ed.quedens@mesaaz.gov,
' Date: 2021.05.05 08:24:03 -07'00'
Adobe Acrobat version:
2021.001.20145
ELLIOTT ELECTRIC SUPPLY
hénuis STEVENS
Printed Name
Printed Name
OUTS (PDE SALES
Title
5-3-Al
Date
REVIEWED BY:
py, Zed Stalhnge
Ted Stallings, CPPB 7
Procurement Officer Il
2021062
Date
Page 7 of 27
EXHIBIT A
SCOPE OF WORK
SCOPE OF WORK: To provide industrial and non-industrial electrical and process
controls/SCADA equipment, parts, supplies, tools, and services.
The term of any resulting contract shall be for three (3) years with an opportunity to renew for an
additional two (2) years as provided for within the Scope of Work and Terms and Conditions sections
of this RFP. Renewals options, exercisable based on contractor(s) has provided high quality
product(s) and service with demonstrated cost containment efforts.
MULTI-AGENCY PROCUREMENT: The following agencies have given their express intent to
purchase from resulting contract. Any and all S.A.V.E members may also purchase from resulting
contract.
Agency Name
City of Avondale
City of Mesa
City of Scottsdale
City of Tempe
PRODUCT SPECIFICATIONS:
a. All products supplied by the Contractor shall be of commercial grade, new and genuine and
meet all federal, state, and local standards for quality and safety.
INVENTORY:
a. The contractor's inventory must be of high-quality electrical parts and supplies and must
be of sufficient quantity and variety to cover the majority of the City’s electrical parts needs.
b. Due to the depth of product lines carried by most vendors, a line card illustrating all product
lines carried by the firm shall be submitted and will be considered as part of the evaluation
process.
DELIVERY:
a. Contract Pricing shall be F.O.B destination. The City may consider paying for overnight or
next day delivery charges for emergency and special-order items.
b. Contractor shall retain title and control of all goods until they are delivered and received.
All risk of transportation and all related charges shall be the responsibility of the Contractor.
c. Allclaims for visible and concealed damage shall be filed by the Contractor. The City will
notify the Contractor promptly of any damaged goods and shall assist the Contractor in
arranging for inspection.
PACKING SLIPS:
a. Each shipment shall include a packing slip showing the City Order Number, Item number,
and description, contract price, and the quantity shipped. Safety Data Sheets, if applicable,
must accompany all orders at the time of delivery.
RESTOCKING FEES:
a. There shall be no restocking fees for unused returned parts — special order items are
exempted from this requirement.
PRODUCT RECALL:
a. Inthe event of any recall notice, technical service bulletin, or other important notification
affecting the equipment, parts and services purchased under resulting Contract, a notice
2021062 Page 8 of 27
EXHIBIT A
SCOPE OF WORK
shall be sent to the Contract Administrator. It shall be the responsibility of the Contractor
to assure that all recall notices are sent directly to the Contract Administrator and
Purchasing Office.
b. Awarded contractor assumes full responsibility for prompt notification of both the contract
administrator and purchasing of any product recall in accordance with the applicable State
of Arizona and federal regulation.
9. DEFECTIVE PRODUCTS:
a. All defective product shall be replaced and exchanged by the contractor. The cost of
transportation, inspection, re-shipping or other like expenses shall be borne by the
Contractor. All replacement products must be received by the City within thirty (30) days
of initial notification or as mutually agreed upon by the City and the Contractor.
10. WARRANTY:
All warranties shall start from date of delivery or pickup to/from the City.
All warranties transfer to the City
c. All warranty items/issues/concerns shail be resolved at no charge to the City. This shall
include, but not be limited to, parts, labor, freight, travel, etc.
d. All warranty issues/concerns shall be resolved within a time frame mutually determined by
the City and Contractor.
oo
dat REQUEST FOR PROPOSAL PRICE SHEET:
a. As it is not feasible to list every product needed in the City’s day-to-day operation the
Proposal Price Sheet contain a shopping cart of aera od ie ic ili anal}
vailab le to = City at the ‘discount(s) offered. The discount(s) off of catalog/list
shall remain fixed for the life of the initial contract period and renewal options. Unit price
shall be the published price less the discount(s) offered. Proposers should not leave the
discount section blank on the pricing sheet. A nominal value should be included
anywhere from 0% to 100%. If different discounts would apply depending on the type
of product or equipment, right “various” in the space provided and include a list of
different discounts offered.
12. INVOICING/PAYMENT:
a. Invoices shall be emailed to:
i. Water Resources Department: WaterAcctsPayable@MesaAZ. gov for the fastest
processing.
ii, | Other City of Mesa Departments will provide additional email address upon
award of contract(s).
iii. Cities of Avondale, Scottsdale and Tempe will provide email address upon award
of contract(s)
iv. _ Contractors shall not invoice for products/service items not shipped or performed,
as this will delay payment of entire invoice.
b. Invoices shall include the following:
i. delivery order (DO) #,
ii. part number(s),
iii. products/services descriptions,
iv. list price, percent discount,
Vv. city cost (contract pricing),
vi. if applicable freight charge and sales tax.
2021062 Page 9 of 27
c.
EXHIBIT A
SCOPE OF WORK
Contractor shall not invoice for items not delivered as this will delay payment of entire
invoice.
Contractor shall e-mail invoices to appropriate email address above no later than five (5)
to seven (7) calendar days after product/services is received by the City.
Payment in full shall be made to the Contractor within thirty (30) days after receipt and
approval of an invoice, unless terms other than net thirty (30) days are offered as a
discount, at the City’s sole discretion.
2021062 Page 10 of 27
EXHIBIT C
MESA STANDARD TERMS AND CONDITIONS
INDEPENDENT CONTRACTOR. It is expressly understood that the relationship of Contractor to
the City will be that of an independent contractor. Contractor and all persons employed by
Contractor, either directly or indirectly, are Contractor’s employees, not City employees.
Accordingly, Contractor and Contractor's employees are not entitled to any benefits provided to
City employees including, but not limited to, health benefits, enrollment in a retirement system, paid
time off or other rights afforded City employees. Contractor employees will not be regarded as City
employees or agents for any purpose, including the payment of unemployment or workers’
compensation. If any Contractor employees or subcontractors assert a claim for wages or other
employment benefits against the City, Contractor will defend, indemnify and hold harmless the City
from all such claims.
SUBCONTRACTING. Contractor may not subcontract work under this Agreement without the
express written permission of the City. If Contractor has received authorization to subcontract work,
it is agreed that all subcontractors performing work under the Agreement must comply with its
provisions. Further, all agreements between Contractor and its subcontractors must provide that
the terms and conditions of this Agreement be incorporated therein.
ASSIGNMENT. This Agreement may not be assigned, either in whole or in part, without first
receiving the City's written consent. Any attempted assignment, either in whole or in part, without
such consent will be null and void and in such event the City will have the right, at its option, to
terminate the Agreement. No granting of consent to any assignment will relieve Contractor from
any of its obligations and liabilities under the Agreement.
SUCCESSORS AND ASSIGNS, BINDING EFFECT. This Agreement will be binding upon and
inure to the benefit of the parties and their respective permitted successors and assigns.
NO THIRD-PARTY BENEFICIARIES. This Agreement is intended for the exclusive benefit of the
parties. Nothing set forth in this Agreement is intended to create, or will create, any benefits, rights,
or responsibilities in any third parties.
NON-EXCLUSIVITY. The City, in its sole discretion, reserves the right to request the materials or
services set forth herein from other sources when deemed necessary and appropriate. No
exclusive rights are encompassed through this Agreement.
AMENDMENTS. There will be no oral changes to this Agreement. This Agreement can only be
modified in a writing signed by both parties. No charge for extra work or material will be allowed
unless approved in writing, in advance, by the City and Contractor.
TIME OF THE ESSENCE. Time is of the essence to the performance of the parties’ obligations
under this Agreement.
COMPLIANCE WITH APPLICABLE LAWS.
a. General. Contractor must procure all permits/licenses and pay all charges and fees necessary
and incidental to the lawful conduct of business. Contractor must stay fully informed of existing
and future federal, state, and local laws, ordinances, and regulations that in any manner affect
the fulfillment of this Agreement and must comply with the same at its own expense. Contractor
bears full responsibility for training, safety, and providing necessary equipment for all
Contractor personnel to achieve compliance throughout the term of the Agreement. Upon
request, Contractor will demonstrate to the City's satisfaction any programs, procedures, and
other activities used to ensure compliance.
b. Drug-Free Workplace. Contractor is hereby advised that the City has adopted a policy
establishing a drug-free workplace for itself and those doing business with the City to ensure
the safety and health of all persons working on City contracts and projects. Contractor will
require a drug-free workplace for all Contractor personnel working under this Agreement.
Specifically, all Contractor personnel who are working under this Agreement must be notified
in writing by Contractor that they are prohibited from the manufacture, distribution,
dispensation, possession, or unlawful use of a controlled substance in the workplace.
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Contractor agrees to prohibit the use of intoxicating substances by all Contractor personnel
and will ensure that Contractor personnel do not use or possess illegal drugs while in the course
of performing their duties.
Federal and State Immigration Laws. Contractor agrees to comply with the Immigration
Reform and Control Act of 1986 (IRCA) in performance under this Agreement and to permit the
City and its agents to inspect applicable personnel records to verify such compliance as
permitted by law. Contractor will ensure and keep appropriate records to demonstrate that all
Contractor personnel have a legal right to live and work in the United States.
i. As applicable to Contractor, under the provisions of A.R.S. § 41-4401, Contractor hereby
warrants to the City that Contractor and each of its subcontractors will comply with, and
are contractually obligated to comply with, all federal immigration laws and regulations that
relate to their employees and A.R.S. § 23-214(A) (hereinafter collectively the “Contractor
Immigration Warranty”).
ii. A breach of the Contractor Immigration Warranty will constitute a material breach of this
Agreement and will subject Contractor to penalties up to and including termination of this
Agreement at the sole discretion of the City.
iii. To ensure Contractor and its subcontractors are complying with the Contractor Immigration
Warranty, the City retains the legal right to conduct random verification of the employment
records of any Contractor or subcontractor employee who works on this Agreement,
including the inspection of the papers of such employees. Contractor agrees to assist the
City in regard to any random verification performed.
iv. Neither Contractor nor any subcontractor will be deemed to have materially breached the
Contractor immigration Warranty if Contractor or subcontractor establishes that it has
complied with the employment verification provisions prescribed by Sections 274a and
274b of the Federal Immigration and Nationality Act and the E-Verify requirements
prescribed by A.R.S. § 23-214(A).
Nondiscrimination. Contractor understands and acknowledges that it is the policy of the City
of Mesa to promote non-discrimination. As such, Contractor represents and warrants that it
does not discriminate against any employee or applicant for employment or person to whom it
provides services because of race, color, national origin, age, disability, religion, sex, sexual
orientation, gender identity and expression, veterans’ status, marital status, or genetic
information, and represents and warrants that it complies with all applicable federal, state, and
local laws and executive orders regarding employment. In performance under this Agreement,
Contractor and Contractor's personnel will comply with applicable provisions of the following
laws (as amended): Title VII of the U.S. Civil Rights Act of 1964, Section 504 of the Federal
Rehabilitation Act, the Americans with Disabilities Act (42 U.S.C. § 12101 ef seq.), and any
other applicable non-discrimination laws and rules.
State Sponsors of Terrorism Prohibition. Per A.R.S. § 35-392, Contractor must not be in
violation of section 6(j) of the Federal Export Administration Act and subsequently prohibited
by the State of Arizona from selling goods or services to the City.
Israel Boycott Divestments. In accordance with the requirements of A.R.S. § 35-393.01, if
the Agreement requires Contractor to acquire or dispose of services, supplies, information
technology or construction with a value of $100,000 or more, then, by entering into this
Agreement, Contractor certifies that it is not currently engaged in, and agrees for the duration
of the Agreement to not engage in, a boycott of goods and services from Israel.
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10.
11
12.
13.
14,
15.
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MESA STANDARD TERMS AND CONDITIONS
SALES/USE TAX, OTHER TAXES.
a. Contractor is responsible for the payment of all taxes including federal, state, and local taxes
related to or arising out of Contractor's services under this Agreement including, by way of
illustration but not limitation, federal and state income tax, Social Security tax, unemployment
insurance taxes, and any other taxes or business license fees, as required. If any taxing
authority should deem Contractor or Contractor employees an employee of the City, or should
otherwise claim the City is liable for the payment of taxes that are Contractor’s responsibility
under this Agreement, then Contractor will indemnify the City for any tax liability, interest, and
penalties imposed upon the City.
b. The City is exempt from paying certain federal excise taxes and will furnish an exemption
certificate upon request. The City is not exempt from state and local sales/use taxes.
AMOUNTS DUE THE CITY. Contractor must be current and remain current in all obligations,
whether or not related to the Agreement, due to the City during the performance of services under
the Agreement. Payments to Contractor may be offset by any delinquent amounts due the City or
fees and charges owed to the City.
PUBLIC RECORDS. Contractor acknowledges that the City is a public body, subject to Arizona's
public records laws (A.R.S. § 39-121 et seq.) and any documents related to this Agreement may
be subject to disclosure pursuant to state law in response to a public records request or to
subpoena or other judicial process.
a. If Contractor believes documents related to the Agreement contain trade secrets or other
proprietary data, Contractor must have notified the City pursuant to Mesa Procurement Rules
Section 2.1 or notified the City with a notification statement specifically identifying the trade
secrets or other proprietary data that Contractor believes should remain confidential.
b. Inthe event the City determines it is legally required to disclose pursuant to law any documents
or information Contractor deems confidential trade secrets or proprietary data, the City, to the
extent possible, will provide Contractor with prompt written notice by certified mail, fax, email
or other method that tracks delivery status of the requirement to disclose the information so
Contractor may seek a protective order from a court having jurisdiction over the matter or obtain
other appropriate remedies. The notice will include a time period for Contractor to seek court
ordered protection or other legal remedies as deemed appropriate by Contractor. If Contractor
does not obtain such court ordered protection by the expiration of said time period, the City
may release the information without further notice to Contractor.
AUDITS AND RECORDS. Contractor must preserve the records related to this Agreement for six
(6) years after completion of the Agreement. The City or its authorized agent reserves the right to
inspect any records related to the performance of work specified herein. In addition, the City may
inspect all payroll, billing or other relevant records kept by Contractor in relation to the Agreement.
Contractor will permit such inspections and audits during normal business hours and upon
reasonable notice by the City. The audit of records may occur at Contractor's place of business or
at City offices, as determined by the City.
BACKGROUND CHECK. In accordance with the City’s current background check policies, the
City may conduct criminal, driver history, and all other requested background checks of Contractor
personnel who would perform services under the Agreement who will have access to the City’s
information, data, or facilities. Any officer, employee, or agent that fails the background check must
be replaced immediately for any reasonable cause not prohibited by law.
SECURITY CLEARANCE AND REMOVAL OF CONTRACTOR PERSONNEL. The City will
have final authority, based on security reasons: (i) to determine when security clearance of
Contractor personnel is required; (ii) to determine the nature of the security clearance, up to and
including fingerprinting Contractor personnel; and (iii) to determine whether any individual or entity
may provide services under this Agreement. If the City objects to any Contractor personnel for any
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MESA STANDARD TERMS AND CONDITIONS
reasonable cause not prohibited by law, then Contractor will, upon notice from the City, remove
any such individual from performance of services under this Agreement.
16. DEFAULT.
a. Aparty will be in default of the Agreement if that party:
i. Is or becomes insolvent or is a party to any voluntary bankruptcy or receivership
proceeding, makes an assignment for a creditor, or there is any similar action that affects
Contractor's capability to perform under the Agreement;
ii. Is the subject of a petition for involuntary bankruptcy not removed within sixty (60) calendar
days;
iii, Conducts business in an unethical manner as set forth in the City Procurement Rules
Article 7 or in an illegal manner; or
iv. Fails to carry out any term, promise, or condition of the Agreement.
b. Contractor will be in default of this Agreement if Contractor is debarred from participating in
City procurements and solicitations in accordance with Article 6 of the City’s Procurement
Rules.
c. Notice and Opportunity to Cure. In the event a party is in default then the other party will
provide written notice to the defaulting party of the default. The defaulting party will have thirty
(30) days from receipt of the notice to cure the default, unless the default is of a nature that it
is reasonably anticipated to affect the health, safety or welfare of the public and, in such an
event, the non-defaulting party may require a minimum seven (7) days to cure the default from
the date of receipt of the notice; the cure period may be extended by mutual agreement of the
parties, but no cure period may exceed ninety (90) days. A default notice will be deemed to be
sufficient if it is reasonably calculated to provide notice of the nature and extent of such default.
Failure of the non-defaulting party to provide notice of the default does not waive any rights
under the Agreement. Failure of the defaulting party to cure the default will entitle the non-
defaulting party to the election of remedies specific to the party as set forth in section 17 below.
d. Anticipatory Repudiation. Whenever the City in good faith has reason to question
Contractor's intent or ability to perform, the City may demand that Contractor give a written
assurance of its intent and ability to perform. In the event demand is made and no written
assurance is given within ten (10) calendar days, the City may treat this failure as an
anticipatory repudiation of the Agreement entitling the City to terminate the Agreement in
accordance with section 17(a) below.
17. REMEDIES. The remedies set forth in this Agreement are not exclusive. Election of one remedy
will not preclude the use of other remedies. In the event of default:
a. The non-defaulting party may terminate the Agreement, and the termination will be effective
immediately or at such other date as specified by the terminating party.
b. The City may purchase the services or materials required under the Agreement from the open
market, complete required work itself, or have it completed at the expense of Contractor. If the
cost of obtaining substitute services exceeds the contract price in the Agreement, the City may
recover the excess cost by: (i) requiring immediate reimbursement by the Contractor to the
City; (ii) deduction from an unpaid balance due to Contractor; (iii) collection against the proposal
and performance security, if any; (iv) collection against liquidated damages (if applicable); or
(v) a combination of the aforementioned remedies or other remedies as permitted by law.
Costs in this Subsection (b) include any and all, fees, and expenses incurred in obtaining
substitute services and expended in obtaining reimbursement including, but not limited to,
administrative expenses, attorneys’ fees, and costs.
c. The non-defaulting party will have all other rights granted under this Agreement and all rights
at law or in equity that may be available to it.
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18.
19.
20.
21.
22.
23.
24.
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MESA STANDARD TERMS AND CONDITIONS
d. Neither party will be liable for incidental, special, or consequential damages.
CONTINUATION DURING DISPUTES. Contractor agrees that during any dispute between the
parties, Contractor will continue to perform its obligations until the dispute is settled, instructed to
cease performance by the City, enjoined or prohibited by judicial action, or otherwise required or
obligated to cease performance by other provisions in this Agreement.
TERMINATION FOR CONVENIENCE. The City reserves the right to terminate this Agreement, in
part or in whole, for its sole convenience upon thirty (30) calendar days’ written notice. Contractor
acknowledges that, as with any termination permitted under this Agreement, in the event of a
termination for convenience, Contractor is only entitled to payment in accordance with section 22
(Payment to Contractor Upon Termination); Contractor will not be entitled to any anticipated lost
profits had the Agreement been performed to completion.
TERMINATION FOR CONFLICT OF INTEREST (A.R.S. § 38-511). Pursuant to A.R.S. § 38-511,
the City may cancel this Agreement within three (3) years after its execution, without penalty or
further obligation, if any person significantly involved in initiating, securing, drafting, or creating the
Agreement for the City becomes an employee or agent of Contractor.
TERMINATION FOR NON-APPROPRIATION AND MODIFICATION FOR BUDGETARY
CONSTRAINT. The City is a governmental agency which relies upon the appropriation of funds
by its governing body to satisfy its obligations. If the City reasonably determines it does not have
funds to meet its obligations under this Agreement, the City will have the right to terminate the
Agreement without penalty on the last day of the fiscal period for which funds were legally available.
In the event of such termination, the City agrees to provide written notice of its intent to terminate
thirty (30) calendar days prior to the stated termination date.
PAYMENT TO CONTRACTOR UPON TERMINATION. Upon termination of this Agreement for
any reason, Contractor will be entitled only to payments authorized under the Agreement for those
services performed or materials provided in accordance with the Agreement up to the date of
termination, and any authorized expenses already incurred up to such date of termination. The
City will make final payment within thirty (30) calendar days after the City has both completed its
appraisal of the materials and services provided and received Contractor’s properly prepared final
Invoice.
NON-WAIVER OF RIGHTS. There will be no waiver of any provision of this Agreement unless
approved in writing and signed by the waiving party. Failure or delay to exercise any rights or
remedies provided herein or by law or in equity, or the acceptance of, or payment for, any services
hereunder, will not release the other party of any of the warranties or other obligations of the
Agreement and will not be deemed a waiver of any such rights or remedies.
INDEMNIFICATION; LIABILITY.
a. To the fullest extent permitted by law, Contractor agrees to defend, indemnify and hold
harmless the City, its elected officials, agents, representatives and employees (collectively,
including the City, “City Personnel”) from and against any and all liabilities, demands, claims,
suits, penalties, obligations, losses, damages, causes of action, fines or judgments of any kind,
including costs, attorneys’, witnesses’ and expert witnesses’ fees, and expenses incident
thereto (all of the foregoing, collectively “Claims”) imposed upon or asserted against City
Personnel by a third party relating to, arising out of or resulting from, in whole or in part: (i)
services or materials provided under this Agreement by Contractor or its officers’, agents’, or
employees’ (collectively, including Contractor, “Contractor Personnel”): (ii) negligent acts,
errors, mistakes or omissions of Contractor Personnel; or (iii) failure of Contractor Personnel
to comply with or fulfill the obligations established by this Agreement. Contractor's
indemnification, duty to defend and hold harmless City Personnel in this Subsection (a) will
apply to all Claims against City Personnel except Claims arising solely from the negligence or
intentional acts of City Personnel.
b. The City assumes no liability for the actions of Contractor Personnel and will not indemnify or
hold Contractor Personnel or any third party harmless for Claims relating to, arising out of or
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25.
26.
27
28.
29.
30.
31.
32.
33.
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MESA STANDARD TERMS AND CONDITIONS
resulting from, in whole or in part, this Agreement or use of Contractor Personnel-provided
services or materials.
WARRANTY. Contractor warrants that the services and materials will conform to the requirements
of the Agreement. Additionally, Contractor warrants that all services will be performed in a good,
workman-like and professional manner. The City’s acceptance of services or materials provided
by Contractor will not relieve Contractor from its obligations under this warranty. If the City
reasonably determines any materials or services are of a substandard or unsatisfactory manner,
Contractor, at no additional charge to the City, will provide materials or redo such services until in
accordance with this Agreement and to the City’s reasonable satisfaction.
Unless otherwise agreed, Contractor warrants that materials will be new, unused, of most current
manufacture and not discontinued, will be free of defects in materials and workmanship, will be
provided in accordance with manufacturer's standard warranty for at least one (1) year unless
otherwise specified, and will perform in accordance with manufacturer's published specifications.
THE CITY’S RIGHT TO RECOVER AGAINST THIRD PARTIES. Contractor will do nothing to
prejudice the City’s right to recover against third parties for any loss, destruction, or damage to City
property and will, at the City’s request and expense, furnish to the City reasonable assistance and
cooperation in obtaining recovery, including assistance in the prosecution or defense of suit and
the execution of instruments of assignment in favor of the City.
NO GUARANTEE OF WORK. Contractor acknowledges and agrees: (i) it is not entitled to deliver
any specific amount of materials or services, or any materials or services at all, under this
Agreement; and (ii) the materials or services will be requested by the City on an as needed basis,
at the sole discretion of the City. Any document referencing quantities or performance frequencies
represent the City's best estimate of current requirements, but will not bind the City to purchase,
accept, or pay for materials or services which exceed its actual needs.
OWNERSHIP. All deliverables, services, and information provided by Contractor or the City
pursuant to this Agreement (whether electronically or manually generated) including without
limitation, reports, test plans, and survey results, graphics, and technical tables, originally prepared
in the performance of this Agreement, are the property of the City and will not be used or released
by Contractor or any other person except with prior written permission by the City.
USE OF NAME. Contractor will not use the name of the City of Mesa in any advertising or publicity
without obtaining the prior written consent of the City.
PROHIBITED ACTS. Contractor acknowledges the applicability of A.R.S. § 38-504 which prohibits
a person who, within the preceding twelve (12) months, is or was a public officer or employee of
the City from representing another person (including Contractor) before the City on any matter for
which the officer or employee was directly concerned and personally participated in during their
service or employment by a substantial and material exercise of administrative discretion. Further,
while employed by the City and for two (2) years thereafter, public officers or employees are
prohibited from disclosing or using, without appropriate authorization, any confidential information
acquired by such person in the course of his or her official duties at the City.
FOB DESTINATION FREIGHT PREPAID AND ALLOWED. All deliveries will be FOB destination
freight prepaid and allowed unless otherwise agreed.
RISK OF LOSS. Contractor agrees to bear all risk of loss, injury, or destruction of Contractor's
goods or equipment incidental to Contractor providing the services and materials under this
Agreement and such loss, injury, or destruction will not release Contractor from any obligation
hereunder.
SAFEGUARDING CITY PROPERTY. Contractor will be responsible for any damage or loss to
City real or personal property when such property is the responsibility of or in the custody of
Contractor or its personnel.
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