Siemens Linking Agreement

LINKING AGREEMENT
BETWEEN
THE CITY OF GLENDALE, ARIZONA
AND
SIEMENS INDUSTRY, INC.

THIS LINKING AGREEMENT (this “Agreement”) is entered into as of this day of

, 2023, between the City of Glendale, an Arizona municipal corporation (the “City”), and

Siemens Industry, Inc., a(n) Deleware Coporation authorized to do business in Arizona
(“Contractor”), collectively, the “Parties.”

RECITALS

On July 1, 2020 under S.A.V.E Cooperative Purchasing Agreement, the City of Phoenix
entered into a contract with Contractor to purchase the goods and services described in the
Siemens Noncontact Level Metets (“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 services 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 considetation 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 July 1, 2020, until the date the contract expires on June 30, 2026 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 June 30, 2026. The initial period of this Agreement, therefore, is the period
from the Effective Date of this Agreement until June 30, 2026. ‘There are no renewal periods
for this agreement.

1/2/2020

10.

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 ate
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 hereto as
Exhibit C.

B. The total purchase price for the supplies and/or services purchased under this

Agreement shall not exceed Two hundred & fifty thousand dollars ($250,000) 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 tequirements 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.

Attestation of PCI Compliance. When applicable, the Contractor will provide the City
annually with a Payment Card Industry Data Security Standard (PCI DSS) attestation of
compliance certificate signed by an officer of Contractor with oversight responsibility.

Notices. Any notices that must be provided under this Agreement shall be sent to the Patties’
respective authorized representatives at the address listed below:

4/29/2021

City of Glendale
c/o Julie Ossege

7070 W. Northern Ave.

Glendale, AZ
And

Siemens Industry, Inc.
Kenneth Charles

8871 W Silverwood Ct.
Franklin, WI 53132

IN WITNESS WHEREOF, the patties hercto have executed this Agreement as of the date and year

set forth above.
“City”

City of Glendale, an Arizona
municipal corporation

By:

Kevin R. Phelps
City Manager

ATTEST:

Julie K. Bower (SEAL)
City Clerk

APPROVED AS TO FORM:

Michael D. Bailey
City Attorney

“Contractor”

Siemens Industry, Inc.,
a Delaware Cgporation

By:
Name: Mike }.
Title: Genernl Manager

4/29/2021

LINKING AGREEMENT
BETWEEN
THE CITY OF GLENDALE, ARIZONA
AND
SIEMENS INDUSTRY, INC.

EXHIBIT A
SIEMENS NONCONTACT LEVEL METERS
CITY OF PHOENIX REQUIREMENTS CONTRACT NO. 152367,

CONTRACT NO 152367-1 AMENDMENT NO. 1

CONTRACT NO 152367-2 AMENDMENT NO. 2
CONTRACT NO 152367-3 AMENDMENT NO. 3

4/29/2021

152367--0

CITY OF PHOENIX
Water Services Department
Management Services Division
200 W. Washington Street
9" floor
Phoenix, AZ 85003

REQUEST FOR AGREEMENT
RFA 1920-WWT-197 (AM)

SIEMENS NONCONTACT LEVEL METERS - REQUIREMENTS CONTRACT

PROCUREMENT OFFICER
Audrey Mims
602-256-3343

audrey.mims@phoenix.gov

TABLE OF CONTENTS

SECTION | — INSTRUCTIONG............ccccccecsseeseeeeseeecesessueeeuseaeeceeeuseeneceeneeseeeenesenenereas 3
SECTION Il - STANDARD TERMS AND CONDITIONG..............:cccceseeeeeereeneneeeeeeeensee seas! 4
SECTION Ill — SPECIAL TERMS AND CONDITIONG. ............::::sseseeeceeeeseeesseeeeeeneeeeeenes 17
SECTION IV —- INSURANCE AND INDEMNIFICATION.............cccsecceeeeecesseseeeeeeseeeaaeesee 24
SECTION V — SCOPE OF WORK. ............cccccssssseseeeeceneeeseeceeeueeseseceeensereeeeeeeeneeeeseeens 27
SECTION VI — SUBMITTALG...........ccccceeseceeeeeeeeeeeseseeeseeseaeeeseeesaeeeeeneeeeeeaeeseeneeesseeoes 31
ATTACHMENT A — PRICE SCHEDULE. .............ccccccseccseeeeeceeenseesuueeeeeeeeeneessusenseensaenen 34
EXHIBIT A — SIEMENS PRODUCT SPECIFICATIONG. ............cccceesseeesseeseseeueeeeeeeeeeenees 35

RFA 1920-VWT-197 (AM)

SECTION | — INSTRUCTIONS CITY OF PHOENIX

1. STATEMENT OF NEED AND CONTRACT TERM:

This is a contract for Siemens Noncontact Level Meters and Replacement Parts for the Water
Services Department’s Water Treatment Plants, Wastewater Treatment Plants, and other
locations for a six-year period, commencing on or about July 1, 2020, in accordance with the
specification attached hereto as Exhibit A - Siemens Product Specifications and provisions
contained herein.

2. BUSINESS IN ARIZONA:

The City will not enter contracts with any company not granted authority to transact business, or
not in good standing, in the state of Arizona by the Arizona Corporation Commission, unless the
company asserts a statutory exception prior to entering a contract with the City.

3. LICENSES:

If required by law for the operation of the business or work related to this Contract, Contractor
must possess all valid certifications and/or licenses as required by federal, state or local laws at
the time of submittal.

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SECTION Il - STANDARD TERMS AND CONDITIONS

CITY OF PHOENIX

1. DEFINITION OF KEY WORDS USED IN THE SOLICITATION:

Shall, Will, Must: Indicates a mandatory requirement. Failure to meet these
mandatory requirements may result in the rejection of

Offer as non-responsive.

Should: Indicates something that is recommended but not

mandatory. If the Contractor fails to provide

recommended information, the City may, at its sole
option, ask the Contractor to provide the information or

evaluate the offer without the information.

May: Indicates something that is not mandatory but

permissible.

For purposes of this solicitation, the following definitions will apply:

“A.R.S.” Arizona Revised Statute

“Buyer” or “Procurement City of Phoenix staff person responsible for the

Officer” solicitation. The City employee or employees who have
specifically been designated to act as a contact person
or persons to the Contractor, and responsible for

monitoring and overseeing the Contractor's

performance under this contract.

"City" The City of Phoenix

"Contractor" The individual, partnership, or corporation who, as a
result of the competitive process, is awarded a contract
by the City of Phoenix.

“Contract” or The legal agreement executed between the City of

“Agreement” Phoenix, AZ and the Contractor.

“Days” Means calendar days unless otherwise specified.

“Water Services The contracting authority for the City of Phoenix, AZ,

Director” authorized to sign contracts and amendments thereto

on behalf of the City of Phoenix, AZ.

“Employer” Any individual or type of organization that transacts
business in this state, that has a license issued by an

RFA 1920-WWT-197 (AM)

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agency in this state and employs one or more
employees in this state. Employer includes this state,
any political subdivision of this state and self-employed
persons. In the case of an independent contractor,
employer means the independent contractor and does
not mean the person or organization that uses contract

labor. (A.R.S. 23-211).

“Offer” Means a response from a supplier, contractor or
service provider to a solicitation request that, if
awarded, binds the supplier, contractor or service
provider to perform in accordance with the contract.
Same as bid, proposal, quotation or tender.

“Offeror” Any Vendor, Seller or Supplier submitting a competitive
offer in response to a solicitation from the City. Same

as Bidder or Proposer.

“Solicitation” Means an Invitation for Bid (IFB), Request for Proposal
(RFP), Request for Quotations (RFQ), Request for
Qualifications (RFQu) and request for sealed bids, or
any other type of formal procurement which the City
makes public through advertising, mailings, or some
other method of communication. It is the process by
which the City seeks information, proposals, bids or

quotes from suppliers.

“Suppliers” Firms, entities or individuals furnishing goods or

services to the City.

“Vendor or Seller” A seller of goods or services.

2. CONTRACT INTERPRETATION:

2.1. APPLICABLE LAW: This Contract will be governed by the law of the State of
Arizona, and suits pertaining to this Contract will be brought only in Federal or

State courts in Maricopa County, State of Arizona.

2.2. CONTRACT ORDER OF PRECEDENCE: In the event of a conflict in the
provisions of the Contract, as accepted by the City and as they may be amended,

the following will prevail in the order set forth below:

2.2.1. Special terms and conditions
2.2.2. Standard terms and conditions

RFA 1920-VWWT-197 (AM)

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SECTION II - STANDARD TERMS AND CONDITIONS CITY OF PHOENIX

2.2.3. Amendments

2.2.4. Statement or scope of work

2.2.5. Siemens Product Specifications

2.2.6. Attachments

2.2.7. Exhibits

2.2.8. Instructions to Contractors

2.2.9. Other documents referenced or included in the Solicitation

2.3. ORGANIZATION — EMPLOYMENT DISCLAIMER: The Agreement resulting
hereunder is not intended to constitute, create, give rise to or otherwise recognize a
joint venture agreement or relationship, partnership or formal business organization
of any kind, and the rights and obligations of the parties will be only those expressly
set forth in the agreement. The parties agree that no persons supplied by the
Contractor in the performance of Contractor’s obligations under the agreement are
considered to be City’s employees and that no rights of City civil service, retirement
or personnel rules accrue to such persons. The Contractor will have total
responsibility for all salaries, wage bonuses, retirement, withholdings, workmen's
compensation, occupational disease compensation, unemployment compensation,
other employee benefits and all taxes and premiums appurtenant thereto
concerning such persons and will save and hold the City harmless with respect
thereto.

2.4. SEVERABILITY: The provisions of this Contract are severable to the extent that
any provision or application held to be invalid will not affect any other provision or
application of the contract which may remain in effect without the invalid provision
or application.

2.5. NON-WAIVER OF LIABILITY: The City of Phoenix as a public entity supported by
tax monies, in execution of its public trust, cannot agree to waive any lawful or
legitimate right to recover monies lawfully due it. Therefore, any Contractor agrees
that it will not insist upon or demand any statement whereby the City agrees to limit
in advance or waive any right the City might have to recover actual lawful damages
in any court of law under applicable Arizona law.

2.6. PAROL EVIDENCE: This Agreement is intended by the parties as a final
expression of their agreement and is intended also as a complete and exclusive
statement of the terms of this agreement. No course of prior dealings between the
parties and no usage in the trade will be relevant to supplement or explain any term
used in this Contract. Acceptance or acquiescence in a course of performance
rendered under this contract will not be relevant to determine the meaning of this
Contract even though the accepting or acquiescing party has knowledge of the
nature of the performance and opportunity to object.

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SECTION Il - STANDARD TERMS AND CONDITIONS CITY OF PHOENIX

3. CONTRACT ADMINISTRATION AND OPERATION:

3.1. RECORDS: All books, accounts, reports, files and other records relating to the
contract will be subject at all reasonable times to inspection and audit by the City for
five years after completion of the contract. Such records will be produced at a City
of Phoenix office as designated by the City. Confidentiality will be maintained, and
City will not violate any proprietary or other confidentiality agreements vendor has in
place.

3.2. DISCRIMINATION PROHIBITED: Contractor agrees to abide by the provisions of
the Phoenix City Code Chapter 18, Article V as amended.

Any contractor, in performing under this contract, will not discriminate against
any worker, employee or applicant, or any member of the public, because of
race, color, religion, sex, national origin, age or disability nor otherwise commit
an unfair employment practice. The supplier and/or lessee will take action to
ensure that applicants are employed, and employees are dealt with during
employment without regard to their race, color, religion, sex, or national origin,
age or disability and adhere to a policy to pay equal compensation to men and
women who perform jobs that require substantially equal skill, effort and
responsibility, and that are performed within the same establishment under
similar working conditions. Such action will include but not be limited to the
following: Employment, promotion, demotion or transfer, recruitment or
recruitment advertising, layoff or termination; rates of pay or other forms of
compensation; and selection for training; including apprenticeship. The
supplier further agrees that this clause will be incorporated in all subcontracts
with all labor organizations furnishing skilled, unskilled and union labor, or who
may perform any such labor or services in connection with this contract.
Contractor further agrees that this clause will be incorporated in all
subcontracts, job-contractor agreements or subleases of this agreement
entered into by supplier/lessee.

3.3. EQUAL EMPLOYMENT OPPORTUNITY AND PAY: In order to do business with
the City, Contractor must comply with Phoenix City Code, 1969, Chapter 18, Article
V, as amended, Equal Employment Opportunity Requirements. Contractor will
direct any questions in regard to these requirements to the Equal Opportunity
Department, (602) 262-6790.

For a Contractor with_35 employees or fewer: Contractor in performing
under this Agreement shall not discriminate against any worker, employee or
applicant, or any member of the public, because of race, color, religion, sex,
national origin, age, or disability, nor otherwise commit an unfair employment
practice. The Contractor will ensure that applicants are employed, and
employees are dealt with during employment without regard to their race,
color, religion, sex, national origin, age, or disability. Such action shall include
but not be limited to the following: employment, promotion, demotion or

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transfer, recruitment or recruitment advertising, layoff or termination; rates of
pay or other forms of compensation; and selection for training; including
apprenticeship. The Contractor further agrees that this clause will be
incorporated in all subcontracts related to this Agreement that involve
furnishing skilled, unskilled and union labor, or who may perform any such
labor or services in connection with this Agreement. Contractor further agrees
that this clause will be incorporated in all subcontracts, Contractor agreements
or subleases of this agreement entered into by supplier/lessee.

For a Contractor with more than 35 employees: Contractor in performing
under this Agreement shall not discriminate against any worker, employee or
applicant, or any member of the public, because of race, color, religion, sex,
national origin, age, or disability, nor otherwise commit an unfair employment
practice. The Contractor will ensure that applicants are employed, and
employees are dealt with during employment without regard to their race,
color, religion, sex, national origin, age, or disability, and shall adhere to a
policy to pay equal compensation to men and women who perform jobs that
require substantially equal skill, effort, and responsibility, and that are
performed within the same establishment under similar working conditions.
Such action shall include but not be limited to the following: employment,
promotion, demotion or transfer, recruitment or recruitment advertising, layoff
or termination; rates of pay or other forms of compensation; and selection for
training; including apprenticeship. The Contractor further agrees that this
clause will be incorporated in all subcontracts with all labor organizations
furnishing skilled, unskilled and union labor, or who may perform any such
labor or services in connection with this contract. Contractor further agrees
that this clause will be incorporated in all subcontracts, job-Contractor
agreements or subleases of this Agreement entered into by supplier/lessee.
The Contractor further agrees not to discriminate against any worker,
employee or applicant, or any member of the public, because of sexual
orientation or gender identity or expression and shall ensure that applicants
are employed, and employees are dealt with during employment without
regard to their sexual orientation or gender identity or expression.

3.4.3 Documentation: Suppliers and lessees may be required to provide
additional documentation to the Equal Opportunity Department affirming that a
nondiscriminatory policy is being utilized.

3.4.4 Monitoring: The Equal Opportunity Department shall monitor the
employment policies and practices of suppliers and lessees subject to this
article as deemed necessary. The Equal Opportunity Department is
authorized to conduct on-site compliance reviews of selected firms, which may
include an audit of personnel and payroll records, if necessary.

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3.4. LEGAL WORKER REQUIREMENTS: The City of Phoenix is prohibited by
A.R.S. § 41-4401 from awarding a contract to any Contractor who fails, or
whose subcontractors fail, to comply with A.R.S. § 23-214(A). Therefore,
Contractor agrees that:

3.4.1. Contractor and each subcontractor it uses warrants their compliance
with all federal immigration laws and regulations that relate to their
employees and their compliance with A.R.S. § 23-214, subsection A.

3.4.2. A breach of a warranty under paragraph 3.4.1 will be deemed a material
breach of the contract that is subject to penalties up to and including
termination of the contract.

3.4.3. The City of Phoenix retains the legal right to inspect the papers of any
Contractor or subcontractor employee who works on the contract to
ensure that the Contractor or subcontractor is complying with the
warranty under paragraph 3.4.1.

3.5. HEALTH, ENVIRONMENTAL AND SAFETY REQUIREMENTS: The
Contractor's products, services and facilities will be in full compliance with all
applicable Federal, State and local health, environmental and safety laws,
regulations, standards, codes and ordinances, regardless of whether or not they
are referred to by the City.

At the request of City representatives, the Contractor will provide the City:

3.5.1. Environmental, safety and health regulatory compliance documents
(written safety programs, training records, permits, etc.) applicable to
services provided by the Contractor in this contract

3.5.2. A list of all federal, state, or local (EPA, OSHA, Maricopa County, etc.)
citations or notice of violations issued against their firm or their
subcontractors including dates, reasons, dispositions and resolutions.

The City will have the right, but not the obligation to inspect the facilities,
transportation vehicles or vessels, containers and disposal facilities provided
by the Contractor or subcontractor. The City will also have the right to inspect
operations conducted by the Contractor or subcontractor in the performance of
this agreement. The City further reserves the right to make unannounced
inspections of the Contractor's facilities (during normal business hours).

3.6. COMPLIANCE WITH LAWS: Contractor agrees to fully observe and comply
with all applicable Federal, State and local laws, regulations, standards, codes
and ordinances when performing under this Contract regardless of whether they
are being referred to by the City. Contractor agrees to permit City inspection of
Contractor’s business records, including personnel records to verify any such
compliance.

Because the contractor will be acting as an independent contractor, the City
assumes no responsibility for the Contractor's acts.

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3.7. LAWFUL PRESENCE REQUIREMENT: Pursuant to A.R.S. §§ 1-501 and -502,
the City of Phoenix is prohibited from awarding a contract to any natural person
who cannot establish that he or she is lawfully present in the United States. In
order to establish lawful presence, this person must produce qualifying
identification and sign a City-provided affidavit affirming that the identification
provided is genuine. This requirement will be imposed at the time of contract
award. In the event the prevailing responder is unable to satisfy this
requirement, the City will offer the award to the next-highest scoring responder.
The law does not apply to fictitious entities such as corporations, partnerships
and limited liability companies

3.8. CONTINUATION DURING DISPUTES: Contractor agrees that notwithstanding
the existence of any dispute between the parties, insofar as is possible, under
the terms of the contract, the Contractor will continue to perform the obligations
required of Contractor during the continuation of any such dispute unless
enjoined or prohibited by an Arizona Court of competent jurisdiction.

3.9. EMERGENCY PURCHASES: The City reserves the right to purchase from other
sources those items which are required on an emergency basis and cannot be
supplied immediately from stock by the Contractor.

4. COSTS AND PAYMENTS:

4.1. GENERAL: Any prompt payment terms offered must be clearly noted by the
Contractor on all invoices submitted to the City for the payment of goods or
services received. The City will make every effort to process payment for the
purchase of material or services within thirty to forty-five calendar days after receipt
of a correct invoice, unless a good faith dispute exists to any obligation to pay all or
a portion of the account. Payment terms are specified in the Offer.

4.2. PAYMENT DEDUCTION OFFSET PROVISION: Contractor acknowledges that the
City Charter requires that no payment be made to any Contractor as long as there
is an outstanding obligation due to the City. Contractor agrees that any obligation it
owes to the City will be offset against any payment due to the Contractor from the
City.

4.3. LATE SUBMISSION OF CLAIM BY CONTRACTOR: The City will not honor any
invoices or claims which are tendered one year after the last item of the account
accrued.

4.4. DISCOUNTS: Payment discounts will be computed from the date of receiving
acceptable products, materials and/or services or correct invoice, whichever is
later to the date payment is mailed.

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5.

4.5. NO ADVANCE PAYMENTS: Advance payments are not authorized. Payment will

be made only for actual services or commodities that have been received, unless
addressed specifically in the Scope of work for subscription services.

4.6. FUND APPROPRIATION CONTINGENCY: The Vendor recognizes that any

agreement entered into will commence upon the day first provided and continue in
full force and effect until termination in accordance with its provisions. The Vendor
and the City herein recognize that the continuation of any contract after the close
of any given fiscal year of the City, which ends on June 30th of each year, will be
subject to the approval of the budget of the City providing for or covering such
contract item as an expenditure therein. The City does not represent that said
budget item will be actually adopted, said determination being the determination of
the City Council at the time of the adoption of the budget.

4.7. MAXIMUM PRICES: The City will not be invoiced at prices higher than those stated

in any contract resulting from this Offer. Contractor certifies, by signing this Offer
that the prices offered are no higher than the lowest price the Contractor charges
other buyers for similar quantities under similar conditions, as applicable and
shown by quotes for like services and goods. Contractor further agrees that any
reductions in the price of the goods or services covered by this Offer and occurring
after award will apply to the undelivered balance. The Contractor will promptly
notify the City of such price reductions.

4.8. F.0.B. POINT: All prices are to be quoted F.O.B. delivered, unless specified

elsewhere in this solicitation.

CONTRACT CHANGES:
5.1. CONTRACT AMENDMENTS: Contracts will be modified only by a written contract

amendment signed persons duly authorized to enter into contracts on behalf of the
Contractor. No verbal agreement or conversation with any officer, agent, or
employee of the City either before or after execution of the contract, will affect or
modify any of the terms or obligations contained or to be contained in the contract.
Any such verbal agreements or conversation shall be considered as unofficial
information and in no way binding upon the City or the Contractor. All agreements
shall be in writing and contract changes shall be by written amendment signed by
both parties.

5.2. ASSIGNMENT - DELEGATION: No right or interest in this contract nor monies due

hereunder will be assigned in whole or in part without written permission of the
City, and no delegation of any duty of Contractor will be made without prior written
permission of the City, which may be withheld for good cause. Any assignment or
delegation made in violation of this section will be void.

5.3. NON-EXCLUSIVE CONTRACT: Any contract resulting from this solicitation will be

awarded with the understanding and agreement that it is for the sole convenience

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of the City. The City reserves the right to obtain like goods or services from another
source when necessary.

6. RISK OF LOSS AND LIABILITY:
6.1.TITLE AND RISK OF LOSS: The title and risk of loss of material or service will not
pass to the City until the City actually receives the material or service at the point
of delivery; and such loss, injury, or destruction will not release seller from any
obligation hereunder.

6.2. ACCEPTANCE: All material or service is subject to final inspection and acceptance
by the City within 30 days after delivery. Material or service failing to conform to the
Siemens Product Specifications of this contract will be held at Contractor's risk and
may be returned to the Contractor. If so returned, all costs are the responsibility of
the Contractor. Noncompliance will conform to the cancellation clause set forth in
this document.

6.3. FORCE MAJEURE: Except for payment of sums due, neither party will be liable to
the other nor deemed in default under this contract if and to the extent that such
party's performance of this contract is prevented by reason of force majeure. The
term "force majeure" means an occurrence that is beyond the control of the party
affected and occurs without its fault or negligence. Force majeure will not include
late performance by a subcontractor unless the delay arises out of a force majeure
occurrence in accordance with this force majeure term and condition.

If either party is delayed at any time in the progress of the work by force majeure,
the delayed party will notify the other party in writing of such delay, as soon as is
practical, of the commencement thereof and will specify the causes of such delay
in such notice. Such notice will be hand-delivered or mailed certified-return receipt
and will make a specific reference to this provision, thereby invoking its provisions.
The delayed party will cause such delay to cease as soon as practicable and will
notify the other party in writing when it has done so. The time of completion will be
extended by contract modification for a period of time equal to the time that results
or effects of such delay prevent the delayed party from performing in accordance
with this contract.

6.4. LOSS OF MATERIALS: The City does not assume any responsibility, at any time,
for the protection of or for loss of materials, from the time that the contract
operations have commenced until the final acceptance of the work by the project
manager.

6.5. CONTRACT PERFORMANCE: Contractor will furnish all necessary labor, tools,
equipment, and supplies to perform the required services at the City facilities
designated, unless otherwise specifically addressed in the scope, or elsewhere in
this Agreement. The City's authorized representative will decide all questions
which may arise as to the quality and acceptability of any work performed under

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7.

the contract. If, in the opinion of the City’s authorized representative, performance
becomes unsatisfactory, the City will notify the Contractor.

6.6. DAMAGE TO CITY PROPERTY: Contractor will perform all work so that no
damage to the building or grounds results. Contractor will repair any damage
caused to the satisfaction of the City at no cost to the City.

Contractor will take care to avoid damage to adjacent finished materials that are to
remain. If finished materials are damaged, Contractor will repair and finish to match
existing material as approved by the City at Contractor's expense.

CITY’S CONTRACTUAL RIGHTS:

7.1. Whenever one party to this contract in good faith has reason to question the other
party's intent to perform, the former party may demand that the other party give a
written assurance of this intent to perform. In the event that a demand is made and
no written assurance is given within five days, the demanding party may treat this
failure as an anticipatory repudiation of this contract.

7.2. NON-EXCLUSIVE REMEDIES: The rights and remedies of the City under this
Contract are non-exclusive.

7.3. DEFAULT IN ONE INSTALLMENT TO CONSTITUTE BREACH: Each installment
or lot of the agreement is dependent on every other installment or lot and a delivery
of non-conforming goods or a default of any nature under one installment or lot will
impair the value of the whole agreement and constitutes a total breach of the
agreement as a whole.

7.4. ON TIME DELIVERY: Because the City is providing services which involve health,
safety and welfare of the general public, delivery must be made in accordance with
the delivery schedule promised by the Contractor.

7.5. DEFAULT: In case of default by the Contractor, the City may, by written notice,
cancel this contract and repurchase from another source and may recover the
excess costs by (1) deduction from an unpaid balance due; (2) collection against
the bid and/or performance bond, or (3) a combination of the aforementioned
remedies or other remedies as provided by law.

7.6. COVENANT AGAINST CONTINGENT FEES: Seller warrants that no person or
selling agent has been employed or retained to solicit or secure this contract upon
an agreement or understanding for a commission, percentage, brokerage, or
contingent fee, excepting bona fide employers or bona fide established commercial
or selling agencies maintained by the seller for the purpose of securing business.
For breach or violation of this warranty, the City will have the right to annul the
contract without liability or in its discretion to deduct from the contract price a

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consideration, or otherwise recover the full amount of such commission, brokerage
or contingent fee.

7.7. WORK PRODUCT, EQUIPMENT AND MATERIALS: All work product, equipment,
or materials created or purchased under this contract belongs to the City and must
be delivered to the City at City’s request upon termination of this contract.
Contractor agrees to assign to City all rights and interests Contractor may have in
materials prepared under this contract that are “works for hire” within the meaning
of the copyright laws of the United States, including any right to derivative use of
the material.

8. CONTRACT TERMINATION:

8.1. GRATUITIES: The City may, by written notice to the Contractor, cancel this
contract if it is found that gratuities, in the form of entertainment, gifts or otherwise,
were offered or given by the Contractor or any agent or representative of the
Contractor, to any officer or employee of the City making any determinations with
respect to the performing of such contract. In the event this contract is canceled by
the City pursuant to this provision, the City will be entitled, in addition to any other
rights and remedies, to recover or withhold from the Contractor the amount of the

gratuity.

8.2. CONDITIONS AND CAUSES FOR TERMINATION:

8.2.1 This contract may be terminated at any time by mutual written consent,
or by the City, with or without cause, upon giving thirty-day written
notice to Contractor. The City at its convenience, by written notice, may
terminate this contract, in whole or in part. If this contract is terminated,
the City will be liable only for payment under the payment provisions of
this contract for services rendered and accepted material received by
the City before the effective date of termination. Title to all materials,
work-in-process and completed but undeliverable goods, will pass to
the City after costs are claimed and allowed. The Seller will submit
detailed cost claims in an acceptable manner and will permit the City to
examine such books and records as may be necessary in order to verify
the reasonableness of any claims.

8.2.2 The City reserves the right to cancel the whole or any part of this
contract due to failure of Contractor to carry out any material term,
promise, or condition of the contract. The City will issue a written notice
of default to Contractor for acting or failing to act as in any of the
following:

e In the opinion of the City, Contractor provides personnel who do not
meet the requirements of the contract;

e In the opinion of the City, Contractor fails to perform adequately the
stipulations, conditions or services/Siemens Product Specifications
required in this contract;

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e In the opinion of the City, Contractor attempts to impose on the City
personnel or materials, products or workmanship, which is of an
unacceptable quality.

e Contractor fails to furnish the required service and/or product within
the time stipulated in the contract;

e In the opinion of the City, Contractor fails to make progress in the
performance of the requirements of the contract and/or give the
City a positive indication that Contractor will not or cannot perform
to the requirements of the contract.

8.3. CONTRACT CANCELLATION: All parties acknowledge that this contract is subject
to cancellation by the City of Phoenix pursuant to the provision of Section 38-511,
Arizona Revised Statutes.

9. STATE AND LOCAL TRANSACTION PRIVILEGE TAXES:

In accordance with applicable state and local law, transaction privilege taxes may be
applicable to this transaction. The state and local transaction privilege (sales) tax
burden is on the person who is conducting business in Arizona and the City of Phoenix.
The legal liability to remit the tax is on the person conducting business in Arizona. Any
failure by the Contractor to collect applicable taxes from the City shall not relieve the
Contractor from its obligation to remit taxes. It is the responsibility of the prospective
Offeror to determine any applicable taxes. The City will look at the price or offer
submitted and will not deduct, add or alter pricing based on speculation or application
of any taxes, nor will the City provide advice or guidance. If you have questions
regarding your tax liability, please seek advice from a tax professional prior to
submitting your Offer. You may also find information at Phoenix Tax Division or State
of AZ Department of Revenue Once your Offer is submitted, the Offer is valid for the
time specified in this Solicitation, regardless of mistake or omission of tax liability. If the
City finds over payment of a project due to tax consideration that was not due, the
Contractor will be liable to the City for that amount, and by contracting with the City
agrees to remit any overpayments back to the City for miscalculations on taxes
included in an Offer price.

10. TAX INDEMNIFICATION:

Contractor shall, and require the same of all subcontractors, pay all federal, state and
local taxes applicable to its operation and any persons employed by the Contractor.
Contractor shall, and require the same of all subcontractors, hold the City harmless from
any responsibility for taxes, damages and interest, if applicable, contributions required
under federal, and/or state and local laws and regulations and any other costs including
transaction privilege taxes, unemployment compensation insurance, Social Security and
Worker’s Compensation.

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11. TAX RESPONSIBILITY QUALIFICATION:

Contractor may be required to establish, to the satisfaction of City, that any and all fees
and taxes due to the City or the State of Arizona for any License or Transaction
Privilege taxes, Use taxes or similar excise taxes, are currently paid (except for matters
under legal protest). Contractor agrees to a waiver of the confidentiality provisions
contained in the City Finance Code and any similar confidentiality provisions contained
in Arizona statutes relative to State Transaction Privilege Taxes or Use Taxes.
Contractor agrees to provide written authorization to the City Finance Department and
to the Arizona State Department of Revenue to release tax information relative to
Arizona Transaction Privilege Taxes or Arizona Use Taxes in order to assist the
Department in evaluating Contractor's qualifications for and compliance with contract for
duration of the term of contract.

12. NO ISRAEL BOYCOTT:

By entering into this contract, the Contractor certifies that they are not currently
engaged in and agrees for the duration of the contract, to not engage in a boycott of
goods or services from Israel.

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