Agreement

City of Glendale — Regular Meeting (2023-09-12)

Extracted text (via ocr_local) 47626 characters

PROFESSIONAL SERVICES AGREEMENT
(Not Construction Related)
Bulk Solid Waste Management and Recycling Equipment

This Professional Services Agreement ("Agreement") is entered into and effective between CITY OF GLENDALE,
an Arizona municipal corporation ("City") and Marathon Equipment Company, a Delaware company, authorized to
do business in the State of Arizona, ("Contractor") as of the day of , 2023 (“Effective
Date”).

RECITALS

A. City intends to undertake a project for the benefit of the public and with public funds that is more fully set
forth in Exhibit A, Project (the "Project");

B. City desires to retain the professional services of Contractor to perform certain specific duties and produce
the specific work as set forth in the attached Exhibit B, Project Scope of Work (“Scope”);
Cc. Contractor desites to provide City with professional services (“Services”) consistent with best consulting or
architectural practices and the standards set forth in this Agreement, in order to complete the Project; and
D. City and Contractor desire to memorialize their agreement with this document.
AGREEMENT

The parties hereby agree as follows:
1, Key Personnel; Other Contractors and Subcontractors.

1.1 Professional Services. Contractor will provide all Services necessary to assure the Project is
completed timely and efficiently consistent within Project requirements, including, but not limited
to, working in close interaction and interfacing with City and its designated employees, and working
closely with others, including other Contractors or contractors, retained by City.

1.2 Project Team.
a. Project Manager.

(1) Contractor will designate an employee as Project Manager with sufficient training,
knowledge, and experience to, in the City's opinion, complete the project and handle
all aspects of the Project such that the work produced by Contractor is consistent
with applicable standards as detailed in this Agreement; and

(2) The City must approve the designated Project Manager.
b. Project Team.

(1) The Project Manager and all other employees assigned to the Project by Contractor
will comprise the "Project Team."

(2) Project Manager will have responsibility for and will supervise all other employees
assigned to the Project by Contractor.

c. Discharge, Reassign, Replacement.

(1) Contractor acknowledges the Project Team is comprised of the same persons and
roles for each as may have been identified in Exhibit A.

(2) Contractor will not discharge, reassign, replace or diminish the responsibilities of
any of the employees assigned to the Project who have been approved by City

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without City's prior written consent unless that person leaves the employment of
Contractor, in which event the substitute must first be approved in writing by City.

(3) Contractor will change any of the members of the Project Team at the City's request
if an employee's performance does not equal or exceed the level of competence that
the City may reasonably expect of a person performing those duties, or if the acts
or omissions of that person are detrimental to the development of the Project.

d. Subcontractors. Contractor shall not engage any subcontractor for the work or services to
be performed under this Agreement.

Schedule. The Services will be undertaken in a manner that ensures the Project is completed timely and
efficiently in accordance with the Project.

Contractor’s Work.

3.1

3.2

3.3

3.4

Standard. Contractor must perform Services in accordance with the standards of due diligence, care,
and quality prevailing among Contractors having substantial experience with the successful furnishing
of Services for projects that are equivalent in size, scope, quality, and other criteria under the Project
and identified in this Agreement.

Licensing. Contractor warrants that:

a. Contractor currently holds all appropriate and required licenses, registrations and other
approvals necessary for the lawful furnishing of Services ("Approvals"); and

b. Neither Contractor nor any SubContractor has been debarred or otherwise legally excluded
from contracting with any federal, state, or local governmental entity ("Debarment").

(1) City is under no obligation to ascertain or confirm the existence or issuance of any
Approvals or Debarments, or to examine Contractor's contracting ability.

(2) Contractor must notify City immediately if any Approvals or Debarment changes
during the Agreement's duration. The failure of the Contractor to notify City as
required will constitute a material default under the Agreement.

Compliance. Services will be furnished in compliance with applicable federal, state, county and local
statutes, rules, regulations, ordinances, building codes, life safety codes, and other standards and
criteria designated by City.

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 requirements as stated
within this section. Contractor, and on behalf of any subcontractors, warrants compliance with this
section.

Coordination; Interaction.

a. For projects that the City believes requires the coordination of various professional services,
Contractor will work in close consultation with City to proactively interact with any other
professionals retained by City on the Project ("Coordinating Project Professionals").

b. Subject to any limitations expressly stated in the Project Budget, Contractor will meet to
review the Project, Schedule, Project Budget, and in-progress work with Coordinating
Project Professionals and City as often and for durations as City reasonably considers
necessary in order to ensure the timely work delivery and Project completion.

c. For projects not involving Coordinating Project Professionals, Contractor will proactively
interact with any other contractors when directed by City to obtain or disseminate timely
information for the proper execution of the Project.

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3.5

Work Product.

a. Ownership. Upon receipt of payment for Services furnished, Contractor grants to City
exclusive ownership of and all copyrights, if any, to evaluations, reports, drawings,
specifications, project manuals, surveys, estimates, reviews, minutes, all "architectural work"
as defined in the United States Copyright Act, 17 U.S.C § 101, ef seq., and other intellectual
work product as may be applicable ("Work Product").

(1) This grant is effective whether the Work Product is on paper (e.g., a "hard copy"),
in electronic format, or in some other form.

(2) Contractor warrants, and agrees to indemnify, hold harmless and defend City for,
from and against any claim that any Work Product infringes on third-party
proprietary interests.

b. Delivery. Contractor will deliver to City copies of the preliminary and completed Work
Product promptly as they are prepared.

c. City Use.
(1) City may reuse the Work Product at its sole discretion.

(2) In the event the Work Product is used for another project without further
consultations with Contractor, the City agrees to indemnify and hold Contractor
harmless from any claim arising out of the Work Product.

(6) In such case, City will also remove any seal and title block from the Work Product.

Compensation for the Project.

4.2

4.3

Compensation. Contractor's compensation for the Project, including those furnished by its
SubContractors or Subcontractors will not exceed $195,000 as specifically detailed in Exhibit D
("Compensation").

Change in Scope of Project. The Compensation may be equitably adjusted if the originally
contemplated Scope as outlined in the Project is significantly modified.

a. Adjustments to Compensation require a written amendment to this Agreement and may
require City Council approval.
b. Additional services which are outside the Scope of the Project contained in this Agreement

may not be performed by the Contractor without prior written authorization from the City.

c. Notwithstanding the incorporation of the Exhibits to this Agreement by reference, should
any conflict arise between the provisions of this Agreement and the provisions found in the
Exhibits and accompanying attachments, the provisions of this Agreement shall take priority
and govern the conduct of the parties.

Expenses. City will reimburse Contractor for certain out-of-pocket expenses necessarily incurred by
Contractor in connection with this Agreement, without mark-up (the “Reimbursable Expenses”),
including, but not limited to, document reproduction, materials for book preparation, postage,
courier and overnight delivery costs incurred with Federal Express or similar carriers, travel and car
mileage, subject to the following:

a. Mileage, airfare, lodging and other travel expenses will be reimbursable only to the extent
these would, if incurred, be reimbursed to City of Glendale personnel under its policies and
procedures for business travel expense reimbursement made available to Contractor for
review prior to the Agreement’s execution, and which policies and procedures will be
furnished to Contractor;

b. The Reimbursable Expenses in this section are approved in advance by City in writing; and

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The total of all Reimbursable Expenses paid to Contractor in connection with this
Agreement will not exceed the “not to exceed” amount identified for Reimbursable Services
in the Compensation.

Billings and Payment.
5.1 Applications.

a. Contractor will submit monthly invoices (each, a "Payment Application") to City's Project
Manager and City will remit payments based upon the Payment Application as stated below.

b. The period covered by each Payment Application will be one calendar month ending on the
last day of the month.

5.2 Payment.

a. After a full and complete Payment Application is received, City will process and remit
payment within 30 days.

b. Payment may be subject to or conditioned upon City's receipt of:

(1) Completed work generated by Contractor and its SubContractors; and

(2) Unconditional waivers and releases on final payment from all SubContractors as
City may reasonably request to assure the Project will be free of claims arising from
requited performances under this Agreement.

5.3 Review and Withholding. City's Project Manager will timely review and certify Payment Applications.

Termination.

If the Payment Application is rejected, the Project Manager will issue a written listing of the
items not approved for payment.

City may withhold an amount sufficient to pay expenses that City reasonably expects to incur
in correcting the deficiency or deficiencies rejected for payment.

6.1 For Convenience. City may terminate this Agreement for convenience, without cause, by delivering
a written termination notice stating the effective termination date, which may not be less than 15
days following the date of delivery.

Contractor will be equitably compensated for Services furnished prior to receipt of the
termination notice and for reasonable costs incurred.

b. Contractor will also be similarly compensated for any approved effort expended, and
approved costs incurred, that are directly associated with Project closeout and delivery of the
required items to the City.

6.2 For Cause. City may terminate this Agreement for cause if Contractor fails to cure any breach of this

Agreement within seven days after receipt of written notice specifying the breach.

Contractor will not be entitled to further payment until after City has determined its damages.
If City's damages resulting from the breach, as determined by City, are less than the equitable
amount due but not paid Contractor for Services furnished, City will pay the amount due to
Contractor, less City's damages, in accordance with the provisions of Sec. 5.

If City's direct damages exceed amounts otherwise due to Contractor, Contractor must pay
the difference to City immediately upon demand; however, Contractor will not be subject to
consequential damages more than $1,000,000 or the amount of this Agreement, whichever
is greater.

Conflict. Contractor acknowledges this Agreement is subject to A.R.S. § 38-511, which allows for
cancellation of this Agreement in the event any person who is significantly involved in initiating, negotiating,

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securing, drafting, or creating the Agreement on City's behalf is also an employee, agent, or Contractor of any
other party to this Agreement.

Insurance. For the duration of the term of this Agreement, Contractor shall procure and maintain insurance
against claims for injuries to persons or damages to property which may arise from or in connection with the
performance of all tasks or work necessary to complete the Project as herein defined. Such insurance shall
cover Contractor, its agent(s), representative(s), employee(s) and any subcontractors.

8.1 Minimum Scope and Limit of Insurance. Coverage must be at least as broad as:

Commercial General Liability (CGL): Insurance Services Office Form CG 00 01, including
products and completed operations, with limits of no less than $1,000,000 per occurrence
for bodily injury, personal injury, and property damage. If a general aggregate limit applies,
either the general aggregate limit shall apply separately to this project/location or the general
aggregate limit shall be twice the required occurrence limit.

Automobile Liability: Insurance Services Office Form Number CA 0001 covering Code 1
(any auto), with limits no less than $1,000,000 per accident for bodily injury and property
damage.

Professional Liability. Contractor must maintain a Professional Liability insurance covering
errors and omissions arising out of the work or services performed by Contractor, or anyone
employed by Contractor, or anyone for whose acts, mistakes, errors and omissions
Contractor is legally liability, with a liability insurance limit of $1,000,000 for each claim and
a $2,000,000 annual aggregate limit.

Worker’s Compensation: Insurance as required by the State of Arizona, with Statutory
Limits, and Employers’ Liability insurance with a limit of no less than $1,000,000 per
accident for bodily injury or disease.

8.2 Indemnification.

To the fullest extent permitted by law, Contractor must defend, indemnify, and hold
harmless City and its elected officials, officers, employees and agents (each, an "Indemnified
Party," collectively, the "Indemnified Parties") for, from, and against any and all claims,
demands, actions, damages, judgments, settlements, personal injury (including sickness,
disease, death, and bodily harm), property damage (including loss of use), infringement,
governmental action and all other losses and expenses, including attorneys' fees and litigation
expenses (each, a "Demand or Expense" collectively "Demands or Expenses") asserted by a
third-party (Le. a person or entity other than City or Contractor) and that arises out of or
results from the breach of this Agreement by the Contractor or the Contractor’s negligent
actions, errors or omissions (including any SubContractor or Subcontractor or other person
or firm employed by Contractor), whether sustained before or after completion of the
Project.

This indemnity and hold harmless provision applies even if a Demand or Expense is in part
due to the Indemnified Party's negligence or breach of a responsibility under this Agreement,
but in that event, Contractor will be liable only to the extent the Demand or Expense results
from the negligence or breach of a responsibility of Contractor or of any person or entity
for whom Contractor is responsible.

Contractor is not required to indemnify any Indemnified Parties for, from, or against any
Demand or Expense resulting from the Indemnified Party's sole negligence or other fault
solely attributable to the Indemnified Party.

8.3 Other Insurance Provisions. The insurance policies required by the Section above must contain, or

be endorsed to contain the following insurance provisions:

The City, its officers, officials, employees and volunteets are to be covered as
additional insureds of the CGL and automobile policies for any liability arising from or in

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8.4

8.5

8.6

8.7

8.8

connection with the performance of all tasks or work necessary to complete the Project as
herein defined. Such lability may arise, but is not limited to, liability for materials, parts or
equipment furnished in connection with any tasks, or work performed by Contractor or on
its behalf and for liability arising from automobiles owned, leased, hired or borrowed on
behalf of the Contractor. General liability coverage can be provided in the form of an
endorsement to the Contractor’s existing insurance policies, provided such endorsement is
at least as broad as ISO Form CG 20 10, 11 85 or both CG 20 10 and CG 23 37, if later

tevisions are used.

b. For any claims related to this Project, the Contractor’s insurance coverage shall be
ptimary insurance with respect to the City, its officers, officials, employees, and volunteers.
Any insurance or self-insurance maintained by the City, its officers, officials, employees or
volunteers shall be in excess of the Contractor’s insurance and shall not contribute with it.

c. Each insurance policy required by this Section shall provide that coverage shall not be
canceled, except after providing notice to the City.

Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating of
no less than A: VI, unless the Contractor has obtained prior approval from the City stating that a
non-conforming insurer is acceptable to the City.

Waiver of Subrogation. Contractor hereby agrees to waive its rights of subrogation which any
insurer may acquire from Contractor by virtue of the payment of any loss. Contractor agrees to
obtain any endorsement that may be necessary to affect this waiver of subrogation. The Workers’
Compensation Policy shall be endorsed with a waiver of subrogation in favor of the City for all work
performed by the Contractor, its employees, agent(s) and subcontractor(s).

Verification of Coverage. Within 15 days of the Effective Date of this Agreement, Contractor shall
furnish the City with original certificates and amendatory endorsements, or copies of any applicable
insurance language making the coverage required by this Agreement effective. All certificates and
endorsements must be received and approved by the City before work commences. Failure to obtain,
submit or secure the City’s approval of the required insurance policies, certificates or endorsements
prior to the City’s agreement that work may commence shall not waive the Contractor’s obligations
to obtain and verify insurance coverage as otherwise provided in this Section. The City reserves the
right to require complete, certified copies of all required insurance policies, including any
endorsements or amendments, required by this Agreement at any time during the Term stated herein.

Contractor’s failure to obtain, submit or secure the City’s approval of the requited insurance policies,
certificates or endorsements shall not be considered a Force Majeure or defense for any failure by
the Contractor to comply with the terms and conditions of the Agreement, including any schedule
for performance or completion of the Project.

Subcontractors. Contractor shall require and shall verify that all subcontractors maintain insurance
meeting all requirements of this Agreement.

Special Risk or Circumstances. The City reserves the right to modify these insurance requirements,
including any limits of coverage, based on the nature of the risk, prior experience, insurer, coverage
or other circumstances unique to the Contractor, the Project or the insurer.

E-verify, Records and Audits. To the extent applicable under A.R.S. § 41-4401, the Contractor warrants
their compliance and that of its subContractors with all federal immigration laws and regulations that relate
to their employees and compliance with the E-verify requirements under A.R.S. § 23-214(A). The Contractor
or subContractor’s breach of this warranty shall be deemed a material breach of the Agreement and may result
in the termination of the Agreement by the City under the terms of this Agreement. The City retains the legal
right to randomly inspect the papers and records of the other party to ensure that the other party is complying
with the above-mentioned warranty. The Contractor and subContractor warrant to keep their respective
papers and records open for random inspection during normal business hours by the other party. The parties
shall cooperate with the City’s random inspections, including granting the inspecting party entry rights onto

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10.

11.

their respective properties to perform the random inspections and waiving their respective rights to keep such
papers and records confidential.

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.

Uyghur Forced Labor Prevention Act (UFLPA). Contractor certifies that it does not currently, and during
the term of this Agreement, will not use:

the forced labor of ethnic Uyghurs in the People’s Republic of China;

b. any goods or services produced by the forced labor of ethnic Uyghurs in the People’s
Republic of China; and
c. any contractors, subcontractors or suppliers that use the forced labor or any goods or

services produced by the forced labor of ethnic Uyghurs in the People’s Republic of China.

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.

13.1. A notice, request or other communication that is required or permitted under this Agreement (each
a "Notice") will be effective only if:

The Notice is in writing; and

b. Delivered in person or by overnight courier service (delivery charges prepaid), certified or
registered mail (return receipt requested).

tom Notice will be deemed to have been delivered to the person to whom it is addressed as of
the date of receipt, if:

(1) Received on a business day before 5:00 p.m. at the address for Notices identified
for the Party in this Agreement by U.S. Mail, hand delivery, or overnight courier

service; or
(2) As of the next business day after receipt, if received after 5:00 p.m.
d. The burden of proof of the place and time of delivery is upon the Party giving the Notice.

e. Digitalized signatures and copies of signatures will have the same effect as original signatures.
13.2 Representatives.
a. Contractor. Contractor's representative (the "Contractor's Representative") authorized to
act on Contractor's behalf with respect to the Project, and his or her address for Notice
delivery is:

Marathon Equipment Company

c/o Jordan Sandlin

909 County Hwy 9 South

Vernon, AL 35592
jordan.sandlin@marathonequipment.com

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14.

15.

City. City's representative ("City's Representative") authorized to act on City's behalf, and
his or her address for Notice delivery is:

City of Glendale

c/o Ernie Ruiz, Solid Waste Superintendent LF/MRF
6210 W. Myrtle Avenue Suite 111

Glendale, Arizona 85301

With required copy to:

City Manager City Attorney

City of Glendale City of Glendale

5850 West Glendale Avenue 5850 West Glendale Avenue
Glendale, Arizona 85301 Glendale, Arizona 85301

Concurrent Notices.

(1) All notices to City's representative must be given concurrently to City Manager and
City Attorney.
(2) A notice will not be deemed to have been received by City's representative until the

time that it has also been received by the City Manager and the City Attorney.

(3) City may appoint one or more designees for the purpose of receiving notice by
delivery of a written notice to Contractor identifying the designee(s) and their
respective addresses for notices.

Changes. Contractor or City may change its representative or information on Notice, by
giving Notice of the change in accordance with this section at least ten days prior to the
change.

Financing Assignment. City may assign this Agreement to any City-affiliated entity, including a non-profit
corporation or other entity whose primary purpose is to own or manage the Project.

Entire Agreement; Survival; Counterparts; Signatures.

15.1

Integration. This Agreement contains, except as stated below, the entire agreement between City
and Contractor and supersedes all prior conversations and negotiations between the parties regarding
the Project or this Agreement.

Neither Party has made any representations, warranties or agreements as to any matters
concerning the Agreement's subject matter.

Representations, statements, conditions, or warranties not contained in this Agreement will
not be binding on the parties.

The solicitation, any addendums and the response submitted by the Contractor are
incorporated into this Agreement as if attached hereto. Any Contractor response modifies
the original solicitation as stated. Inconsistencies between the solicitation, any addendums
and the response or any excerpts attached as Exhibit A and this Agreement will be resolved
by the terms and conditions stated in this Agreement.

Interpretation.

The parties fairly negotiated the Agreement's provisions to the extent they believed necessary
and with the legal representation they deemed appropriate.

The parties are of equal bargaining position and this Agreement must be construed equally
between the parties without consideration of which of the parties may have drafted this
Agreement.

The Agreement will be interpreted in accordance with the laws of the State of Arizona.

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16.

17.

18.

19.

15.3

15.4

15.5

15.6

15.7

Term.

16.1

16.2

Survival. Except as specifically provided otherwise in this Agreement, each warranty, representation,
indemnification and hold harmless provision, insurance requirement, and every other right, remedy
and responsibility of a Party, will survive completion of the Project, or the earlier termination of this
Agreement.

Amendment. No amendment to this Agreement will be binding unless in writing and executed by
the parties. Electronic signature blocks do not constitute execution for purposes of this Agreement.
Any amendment may be subject to City Council approval.

Remedies. All rights and remedies provided in this Agreement are cumulative and the exercise of
any one or more right or remedy will not affect any other rights or remedies under this Agreement
or applicable law. .

Severability. If any provision of this Agreement is voided or found unenforceable, that determination
will not affect the validity of the other provisions, and the voided or unenforceable provision will be
reformed to conform with applicable law.

Counterparts. This Agreement may be executed in counterparts, and all counterparts will together
comprise one instrument.

Renewals. The term of this Agreement commences upon the effective date and continues for a two
(2) year initial period. The City may, at its option and with the approval of the Contractor, extend the
term of this Agreement an additional one (1) year, renewable on an annual basis. Contractor will be
notified in writing by the City of its intent to extend the Agreement period at least thirty (30) calendar
days prior to the expiration of the original or any renewal Agreement period. Price adjustments will
only be reviewed during the Agreement renewal period and will be a determining factor for any
renewal. There are no automatic renewals of this Agreement.

Extension for Procurement Process. Upon the expiration of the Term of this Agreement, including
the initial term and any renewals, 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 to complete its
procurement process to select a vendor to provide the services /materials similar to those 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
provided under this subsection will continue under the same terms and conditions as in effect
immediately prior to the expiration of the then-current term.

Dispute Resolution. Any controversy or claim arising out of or relating to this contract, or the breach
thereof, shall be settled by arbitration administered according to the American Arbitration Association’s
Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any
court having jurisdiction thereof.

Cooperative Use of Contract. ‘This agreement may be extended for use by other governmental agencies
And political subdivisions of the State. Any such usage by other entities must be in accord with the
ordinances, charter, rules and regulations of the respective entity and the approval of the Contractor and
City. For a list of SAVE members, click on the following link:

http:

www.mesaaz.cov business / purchasiny /save

Exhibits. The following exhibits, with reference to the term in which they are first referenced, are
incorporated by this reference.

Exhibit A Project

Exhibit B Scope of Work
Exhibit C Schedule
Exhibit D Compensation

(Signatures appear on the following page.)

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‘The parties enter into this Agreement effective as of the date shown above.

City of Glendale,
an Arizona municipal corporation

By: Kevin R. Phelps
Its: City Manager
ATTEST:

Julie K. Bower (SEAL)
City Clerk

APPROVED AS TO FORM:

Michael D. Bailey
City Attorney

Marathon Equipment Company,
a Delaware company

By: Sonn Murine
Its: SeniorSelesManaaer View President

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EXHIBIT A
Professional Services Agreement

PROJECT
(Bulk Solid Waste and Recycling Equipment)

Marathon Equipment Company will provide services in accordance with the Sourcewell RFP #040621 for Bulk
Solid Waste and Recycling Equipment.

EXHIBIT B
Professional Services Agreement

SCOPE OF WORK
(Bulk Solid Waste and Recycling Equipment)

The Landfill and MRF equipment are utilized for multiple tasks within the Landfill operation. Earthwork, processing
waste and recyclables, and road maintenance are the primary functions that create wear on the equipment. The
Agreement with Marathon Equipment Company, will be utilized to purchase, rentals, provide parts, service, repairs
and rebuilds on heavy equipment on an as-needed basis.

EXHIBIT C
Professional Services Agreement

SCHEDULE
(Bulk Solid Waste and Recycling Equipment)

Marathon Equipment Company will provide Heavy Equipment, Pruchases, Parts, Rentals, Accessories, Supplies,
and Related Services over the next 3 years.

EXHIBIT D
Professional Services Agreement

COMPENSATION
(Bulk Solid Waste and Recycling Equipment)
METHOD AND AMOUNT OF COMPENSATION
Not to exceed $195,000 if all renewal options are excercised in accordance with Section 4 of the Agreement..
NOT-TO-EXCEED AMOUNT

The total amount of compensation paid to Contractor for full completion of all work required by the Project during
the entire term of the Project must not exceed $195,000.

DETAILED PROJECT COMPENSATION

The City shall pay contractor compensation in accordance with the rates as set forth in the Sourcewell RFP #040621
for Bulk Solid Waste and Recycling Equipment.

DocuSign Envelope ID; 450279DD-2E48-43CD-BF34-06D25301 D381

040621-MEC

Sourcewell
Solicitation Number: RFP #040621

CONTRACT

This Contract is between Sourcewell, 202 12th Street Northeast, P.O. Box 219, Staples, MN
56479 (Sourcewell) and Marathon Equipment Company, 909 County Hwy. 9 South, P.O. Box
1798, Vernon, AL 35592 (Vendor).

Sourcewell is a State of Minnesota local government agency and service cooperative created
under the laws of the State of Minnesota (Minnesota Statutes Section 123A.21) that offers
cooperative procurement solutions to government entities. Participation Is open to federal,
state/province, and municipal govemmental entities, higher education, K-12 education,
nonprofit, tribal government, and other public entities located in the United States and Canada.
Sourcewell issued a public solicitation for Bulk Solid Waste and Recycling Equipment from
which Vendor was awarded a contract.

Vendor desires to contract with Sourcewell to provide equipment, products, or services to
Sourcewell and the entities that access Sourcewell’s cooperative purchasing contracts
{Participating Entities).

1. TERM OF CONTRACT
A. EFFECTIVE DATE. This Contract is effective upon the date of the final signature below.

B. EXPIRATION DATE AND EXTENSION. This Contract expires June 2, 2025, unless it is cancelled
sooner pursuant to Article 22, This Contract may be extended up to one additional one-year
period upon request of Sourcewell and with written agreement by Vendor.

C. SURVIVAL OF TERMS, Articles 11 through 14 survive the expiration or cancellation of this
Contract.

2. EQUIPMENT, PRODUCTS, OR SERVICES

A. EQUIPMENT, PRODUCTS, OR SERVICES. Vendor will provide the Equipment, Products, or
Services as stated in its Proposal submitted under the Solicitation Number listed above.
Vendor's Equipment, Products, or Services Proposal (Proposal) is attached and incorporated
into this Contract.

“Rev. 10/2020 1

DocuSign Envelope ID: 45D279DD-2E48-43CD-BF34-06D25301D3B1

040621-MEC

All Equipment and Products provided under this Contract must be new/current model. Vendor
may offer close-out or refurbished Equipment or Products if they are clearly indicated in
Vendor's product and pricing list. Unless agreed to by the Participating Entities in advance,
Equipment or Products must be delivered as operational to the Participating Entity’s site.

This Contract offers an indefinite quantity of sales, and while substantial volume is anticipated,
sales and sales volume are not guaranteed.

B. WARRANTY. Vendor warrants that all Equipment, Products, and Services furnished are free
from liens and encumbrances, and are free from defects in design, materials, and workmanship,
In addition, Vendor warrants the Equipment, Products, and Services are suitable for and will
perform in accordance with the ordinary use for which they are intended. Vendor's dealers and
distributors must agree to assist the Participating Entity in reaching a resolution in any dispute
over warranty terms with the manufacturer. Any manufacturer’s warranty that is effective past
the expiration of the Vendor's warranty will be passed on to the Participating Entity.

C. DEALERS, DISTRIBUTORS, AND/OR RESELLERS. Upon Contract execution, Vendor will
make available to Sourcewell a means to validate or authenticate Vendor's authorized dealers,
distributors, and/or resellers relative to the Equipment, Products, and Services related to this
Contract. This list may be updated from time-to-time and is incorporated into this Contract by
reference. It is the Vendor’s responsibility to ensure Sourcewell recelves the most current
version of this list.

3. PRICING

All Equipment, Products, or Services under this Contract will be priced as stated in Vendor's
Proposal. Vendor pricing is in US Dollars and all payments will be in US currency.

When providing pricing quotes to Participating Entities, all pricing quoted must reflect a
Participating Entity’s total cost of acquisition. This means that the quoted cost is for delivered
Equipment, Products, and Services that are operational for thelr Intended purpose, and
includes all costs to the Participating Entity’s requested delivery location.

Regardless of the payment method chosen by the Participating Entity, the total cost associated
with any purchase option of the Equipment, Products, or Services must always be disclosed in
the pricing quote to the applicable Participating Entity at the time of purchase.

A. SHIPPING AND SHIPPING COSTS. All delivered Equipment and Products must be properly
packaged. Damaged Equipment and Products will be repaired to “as new” condition under
warranty. Vendor will have the right to first attempt to make repairs onsite to the satisfaction
of the Participating Entity. If after attempted onsite repair it is determined that off-site repairs
or return to the factory is necessary, Vendor will do so at Vendor’s expense, In the alternative,
Vendor and Participating Entity may agree in writing to a financial settlement to remedy such

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damage. Participating Entities reserve the right to Inspect the Equipment and Products at a
reasonable time after delivery where circumstances or conditions prevent effective inspection
of the Equipment and Products at the time of delivery.

Vendor must arrange for and pay for the return shipment on Equipment and Products that arrive
in a defective or inoperable condition.

Sourcewell may declare the Vendor in breach of this Contract If the Vendor intentionally
delivers substandard or inferior Equipment or Products. In the event of the delivery of
nonconforming Equipment and Products, the Participating Entity will notify the Vendor as soon
as possible and the Vendor will replace nonconforming Equipment and Products with
conforming Equipment and Products that are acceptable to the Participating Entity.

B. SALES TAX. Each Participating Entity Is responsible for supplying the Vendor with valid tax-
exemption certification(s). When ordering, a Participating Entity must indicate if it is a tax-

exempt entity.

C, HOTLIST PRICING. At any time during this Contract, Vendor may offer a specific selection
of Equipment, Products, or Services at discounts greater than those listed in the Contract.
When Vendor determines it will offer Hot List Pricing, it must be submitted electronically to
Sourcewell ina line-item format. Equipment, Products, or Services may be added or removed
from the Hot List at any time through a Sourcewell Price and Product Change Form as defined
in Article 4 below.

Hot List program and pricing may also be used to discount and liquidate close-out and
discontinued Equipment and Products as long as those close-out and discontinued items are
clearly identified as such. Current ordering process and administrative fees apply. Hot List
Pricing must be published and made available to all Participating Entities.

4, PRODUCT AND PRICING CHANGE REQUESTS

Vendor may request Equipment, Product, or Service changes, additions, or deletions at any
time. All requests must be made in writing by submitting a signed Sourcewell Price and Product
Change Request Form to the assigned Sourcewell Contract Administrator. This form is avaliable
from the assigned Sourcewell Contract Administrator. At a minimum, the request must:

Identify the applicable Sourcewell contract number;

Clearly specify the requested change;

Provide sufficient detall to justify the requested change;

Individually list all Equipment, Products, or Services affected by the requested change,
along with the requested change (e.g., addition, deletion, price change); and

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e Include a complete restatement of pricing documentation in Microsoft Excel with the
effective date of the modified pricing, or product addition or deletion. The new pricing
restatement must include all Equipment, Products, and Services offered, even for those
items where pricing remains unchanged,

A fully executed Sourcewell Price and Product Request Form will become an amendment
to this Contract and be incorporated by reference.

5. PARTICIPATION, CONTRACT ACCESS, AND PARTICIPATING ENTITY REQUIREMENTS

A. PARTICIPATION. Sourcewell’s cooperative contracts are avallable and open to public and
nonprofit entities across the United States and Canada; such as federal, state/province,
municipal, K-12 and higher education, tribal government, and other public entities.

The benefits of this Contract should be available to all Participating Entities that can legally
access the Equipment, Products, or Services under this Contract. A Participating Entity’s
authority to access this Contract is determined through its cooperative purchasing, interlocal,
or joint powers laws. Any entity accessing benefits of this Contract will be considered a Service
Member of Sourcewell during such time of access. Vendor understands that a Participating
Entity’s use of this Contract is at the Participating Entity’s sole convenience and Participating
Entities reserve the right to obtain like Equipment, Products, or Services from any other source.

Vendor Is responsible for familiarizing its sales and service forces with Sourcewell contract use
eligibility requirements and documentation and will encourage potential participating entities
to join Sourcewell. Sourcewell reserves the right to add and remove Participating Entities to its
roster during the term of this Contract.

B. PUBLIC FACILITIES. Vendor’s employees may be required to perform work at government-
owned facilities, including schools. Vendor’s employees and agents must conduct themselves in
a professional manner while on the premises, and in accordance with Participating Entity
policies and procedures, and all applicable taws.

6. PARTICIPATING ENTITY USE AND PURCHASING

A. ORDERS AND PAYMENT. To access the contracted Equipment, Products, or Services under
this Contract, a Particlpating Entity must clearly Indicate to Vendor that it Intends to access this
Contract; however, order flow and procedure will be developed jointly between Sourcewell and
Vendor. Typically, a Participating Entity will issue an order directly to Vendor. If a Participating
Entity issues a purchase order, it may use its own forms, but the purchase order should clearly
note the applicable Sourcewell contract number. All Participating Entity orders under this
Contract must be issued prior to expiration of this Contract; however, Vendor performance,

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Participating Entity payment, and any applicable warranty periods or other Vendor or
Participating Entity obligations may extend beyond the term of this Contract.

Vendor's acceptable forms of payment are included in Attachment A. Participating Entities will
be solely responsible for payment and Sourcewell will have no liability for any unpaid invoice of
any Participating Entity.

B. ADDITIONAL TERMS AND CONDITIONS/PARTICIPATING ADDENDUM. Additional terms and

conditions to a purchase order, or other required transaction documentation, may be

negotiated between a Participating Entity and Vendor, such as job or industry-specific

requirements, legal requirements (e.g., affirmative action or immigration status requirements),

or specific local policy requirements. Some Participating Entities may require the use of a

Participating Addendum; the terms of which will be worked out directly between the

Participating Entity and the Vendor. Any negotiated additional terms and conditions must 7
never be less favorable to the Participating Entity than what is contained in this Contract.

Vendor may reject any purchase order containing unacceptable additional terms or conditions.

C. SPECIALIZED SERVICE REQUIREMENTS. In the event that the Participating Entity requires
service or specialized performance requirements (such as e-commerce specifications,
specialized delivery requirements, or other specifications and requirements) not addressed in
this Contract, the Participating Entity and the Vendor may enter into a separate, standalone
agreement, apart from this Contract. Sourcewell, including its agents and employees, will not
be made a party to a claim for breach of such agreement.

D. TERMINATION OF ORDERS. Participating Entities may terminate an order, in whole or
in part, immediately upon notice to Vendor in the event of any of the following events:

1, The Participating Entity fails to receive funding or appropriation from its governing body
at levels sufficient to pay for the goods to be purchased;

2. Federal, state, or provincial laws or regulations prohibit the purchase or change the
Participating Entity’s requirements; or

3. Vendor commits any material breach of this Contract or the additional terms agreed to
between the Vendor and a Participating Entity.

E. GOVERNING LAW AND VENUE. The governing law and venue for any action related to a
Participating Entity’s order will be determined by the Participating Entity making the purchase.

7. CUSTOMER SERVICE
A. PRIMARY ACCOUNT REPRESENTATIVE. Vendor will assign an Account Representative to

Sourcewell for this Contract and must provide prompt notice to Sourcewell if that person is
changed. The Account Representative will be responsible for:

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« Maintenance and management of this Contract;
© Timely response to all Sourcewell and Participating Entity inquiries; and
® Business reviews to Sourcewell and Participating Entities, if applicable.

B. BUSINESS REVIEWS. Vendor must perform a minimum of one business review with
Sourcewell per contract year. The business review will cover sales to Participating Entities,
pricing and contract terms, administrative fees, supply issues, customer issues, and any other
necessary information.

8. REPORT ON CONTRACT SALES ACTIVITY AND ADMINISTRATIVE FEE PAYMENT

A. CONTRACT SALES ACTIVITY REPORT. Each calendar quarter, Vendor must provide a contract
sales activity report (Report) to the Sourcewell Contract Administrator assigned to this
Contract. A Report must be provided regardless of the number or amount of sales during that
quarter (i.e., if there are no sales, Vendor must submit a report indicating no sales were made),

The Report must contain the following fields:

s Customer City;

« Customer State/Province;

* Customer Zip Code;

e Customer Contact Name;

® Custamer Contact Email Address;

Item Purchased Price;

® Date Purchase was invoiced/sale was recognized as revenue by Vendor.

B. ADMINISTRATIVE FEE. In consideration for the support and services provided by Sourcewell,
the Vendor will pay an administrative fee to Sourcewell on all Equipment, Products, and
Services provided to Participating Entities. The Administrative Fee must be included in, and not
added to, the pricing. Vendor may not charge Participating Entities more than the contracted
price to offset the Administrative Fee.

The Vendor will submit payment to Sourcewell for the percentage of administrative fee stated
in the Proposal multiplied by the total sales of all Equipment, Products, and Services purchased
by Participating Entities under this Contract during each calendar quarter. Payments should
note the Vendor's name and Sourcewell-assigned contract number in the memo; and must be

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