Agreement - SRP

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File: 2100256

AGREEMENT FOR CONSTRUCTION OF SRP FACILITIES

This Agreement for construction, modification or relocation of SRP irrigation facilities
(“Agreement”) is entered into between the Salt River Valley Water Users’ Association, a
corporation organized under the laws of the Territory of Arizona, (“SRP”), and the City
of Chandler, an Arizona municipal corporation (“City”). SRP and City may be referred to
as “Party”, or collectively as “Parties”.

WHEREAS, City has requested that SRP irrigation facilities be modified or relocated to
accommodate certain improvement or other development needs of City for Chandler
RWIF Project located at SW of McQueen Road and Queen Creek Road, and;

WHEREAS, SRP is willing to construct such accommodation, in whole or in part, or to
permit the City to construct such accommodation in whole or in part (“Work”) with
certain conditions.

THEREFORE, in consideration of the matters described herein and of the mutual benefits
and obligations set forth herein, SRP and City agree as follows:

1) SRP shall perform the Work listed on the Construction Bid Summary Section I,
and optional Section II, if offered by SRP and selected by the City. The
Construction Bid Summary is attached hereto as Exhibit A. The Work is further
detailed in SRP’s Plans & Specifications, which are attached hereto as Exhibit B.

2) City shall select the desired option below by checking the box.

XI OPTION A - Work that must be performed by SRP. City shall pay SRP
$104,190 as set forth in Section I of Exhibit A.

Oo OPTION B NOT AVAILABLE - Work that must be performed by SRP
and optional pipeline construction by SRP. City shall pay SRP $ as set
forth in Sections I and I of Exhibit A.

3) a. SRP voluntarily agrees to use commercially reasonable efforts to comply with
49 U.S.C. 5323(j) and 49 C.F.R. Part 661 and 663 which provide that Federal
funds may not be obligated unless steel, iron, and manufactured products used in
FTA-funded projects are produced in the United States.

Regulations: 1). 49 U.S.C Chapter 53, specifically, Sect. 5323 (j), Buy America
Regulations 49 C.F.R part 661, and pre award and post-delivery audits 49 C.F.R
part 663;

Guidance: 1), FTA’s Buy America Audit Handbook, 2). OP 36 Buy America
Review. FTA’s guidelines, regulations, handbooks, and examples are posted on
the FTA’s website.

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b. If SRP is unclear regarding its obligations under this provision, SRP may seek
clarification from City by giving City written notice of inquiry as soon as
reasonably practicable after discovery of the issue. Such requests are limited to
only (i) the items SRP cannot find a source to make a qualifying Buy America
purchase, (ii) items that SRP can find a source to make a qualifying Buy America
purchase, but the lead time for such purchase may unreasonably impact the
Project Schedule, and (iii) SRP is unable in good faith to determine whether the
Buy America requirements apply to a particular item. City will respond to the
inquiry in writing within 5 working days. City’s response will include City’s
recommendation to SRP on how to proceed, but City will not direct SRP’s
activities. SRP shall not be responsible for delays in performance to the extent
caused by City recommendations or delays in City providing such
recommendations.

c. As soon as practicable following the execution of this Agreement, SRP will
provide to City a list of materials that do not comply with Buy America and an
estimated cost of purchasing such materials. City will acknowledge receipt of this
statement, but will not make judgment as to the validity of the statement.

d. City agrees, if it is determined that materials used are not in compliance with
Buy America requirements, the maximum SRP liability will be no more than 150
percent of the price attributable to the materials that are not in compliance with
Buy America requirements; provided, however, that if SRP has sought
clarification of the material requirement under the provisions of paragraph (b)
above, and has followed City’s written recommendations, SRP shall have no
liability.

e. City understands that SRP’s compliance with the Buy America Act may result
in longer lead times for ordering materials, vendor-prescribed minimum purchase
quantities, and higher material costs. SRP will pass on to City any additional
costs it incurs as a result of SRP’s compliance with the Buy America Act, and
SRP will not be liable for schedule delays caused by longer lead times. If there is
a minimum purchase quantity requirement, SRP shall deliver and transfer title to
excess materials to City at agreed locations within the Phoenix metropolitan area
at no additional cost to City.

f. SRP shall not be responsible for delays caused by changes in the Project
Design made by or at the direction of City.

The City shall perform any Work not included in the Work to be performed by SRP
and comply with following conditions:

a. City shall obtain such other licenses, permits, and agreements as required by

any governing bodies having jurisdiction over the location which is the
subject hereof.

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b. Construction shall not commence until receipt of SRP’s Notice to Proceed.

c.

City shall notify the SRP inspector and request a dryup if necessary to
perform the Work. SRP cannot assure a dryup, which may only be possible
for brief periods and certain times of the year.

City shall indemnify, hold harmless, release and defend SRP, the United
States of America (USA), the Salt River Valley Water Users’ Association
(Association) and each and every one of the members of their respective
governing bodies, their officers, agents and employees (the “Indemnified
Parties”) for, from and against any and all claims, demands, suits, costs of
defense, reasonable attorneys’ fees, witness fees of any type, losses,
damages, expenses, fines, penalties, and liabilities (collectively, “Losses”)
for injury to or death of any person or persons, including employees of SRP
or of City or its subcontractors, or damage to property, including property of
SRP or of City or its subcontractors, to which the Indemnified Parties may
be put or subjected by reason of any act or omission on the part of City, any
subcontractor or supplier of City, or any of the directors, officers, partners,
members, managers, agents, servants or employees of City, or of its
subcontractors or suppliers. City’s obligations under this Section shall
extend to Losses resulting from or arising out of the inability of any
irrigation structure constructed or modified pursuant to this Agreement to
contain or dispose of water entering the structure from a source other than
SRP, the Association or the USA. City’s obligations under this Section shall
extend to the Indemnified Parties where they, or any one of them, are
allegedly concurrently negligent with City, any subcontractor or supplier of
City, or any of the directors, officers, partners, members, managers, agents,
servants or employees of City, or of its subcontractors or suppliers, in
causing or contributing to the liability causing event. City shall also
indemnify and hold harmless (and, upon notice so requiring from SRP, also
defend) the Indemnified Parties for, from and against any and all Losses for
contractual claims arising out of City’s agreements with third parties. City
understands and agrees that City enters upon the property of the USA,
Association and/or SRP at City’s own risk.

City warrants that construction shall conform to SRP plans and
specifications and be free from defects in material and workmanship. If
defect in materials or workmanship or other non-conformance with plans
and specifications appears within one year from the date of SRP
acceptance, and SRP so notifies City within a reasonable time after its
discovery, City shall correct the non-conformity at City’s sole cost and
expense within thirty (30) calendar days of notice by SRP, unless
correction of the non-conformity cannot reasonably be accomplished
within 30 days, in which case City shall commence correction efforts
within 15 days of notice from SRP and diligently prosecute such efforts to
completion. If City fails to correct the non-conformity within the time

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period specified by SRP, SRP may correct the non-conformity and City
will pay for the cost of performing the Work.

f. In the event the City is unable to complete its Work, SRP shall have the
right, but not be obligated, to complete the Work by whatever method SRP
deems appropriate. This includes providing or obtaining any labor,
materials or equipment and perform any part of the incomplete Work or
Work that must be redone. The cost of completing the Work, along with
reasonable administrative charges or other damages caused by delays in
completing the Work shall be charged to City.

5) Changes to the plans and specifications may only be made by SRP. SRP shall
provide City with prior written notice of any changes in costs. City shall agree in
writing to any changes in cost to the City.

6) This Agreement shall be governed in all respects by the laws of the state of
Arizona.

7) Hither Party may terminate this Agreement at any time by providing thirty (30)
days written notice to the other Party. In the event the City desires to terminate
this Agreement prior to the completion of SRP’s work, City shall reimburse SRP
for the actual costs incurred as well as reasonable costs required to restore the
facilities of SRP, the USA or the Salt River Project Agricultural Improvement and
Power District.

8) If City’s sub-contractor(s) file a lien against the premises where the Work and
services are being performed, City shall, at its own expense, promptly take any
and all action necessary to cause any such lien to be released or discharged. If
City does not satisfy the lien in a prompt manner, SRP may satisfy the amount of
the lien and then City shall reimburse SRP for the amounts paid in settling the
lien.

9) In the event of dispute involving the terms of this Agreement or an allegation of
material breach by either Party, the Parties reserve all rights and remedies, arising
by law or equity, but shall waive any right to demand a trial by jury in an action
commenced in court with respect to any legal proceeding arising out of or relating
to this Agreement.

10)No Waiver. The failure of SRP to insist upon strict performance of any of the
terms and conditions hereof, or its delay or failure to exercise any rights or
remedies provided herein by law, or its failure to properly notify City in the event
of breach, shall not release City from any of the obligations of this Agreement and
shall not be deemed a waiver of any rights of SRP to insist upon strict
performance hereof.

11) This Agreement is subject to the provisions of ARIZ. REV. STAT. § 38-511.

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12) This Agreement is subject to the provisions of ARIZ. REV. STAT. § 42-17106.
13) Notices:

If to City:

City of Chandler

Ms. Gina Ishidaraybourn
P. O. Box 4008

Chandler, AZ 85244-4008

If to SRP:

SRP

Attn: Andrew Johnson, Manager

Water Engineering and Transmission, MS SSW 303
P.O. Box 52025

Phoenix, Arizona 85072-2025

14) This Agreement is binding upon the Parties hereto, and their respective successors
and assigns.

15) All data, regardless of form, including originals, images and reproductions,
prepared by, obtained by, or transmitted to SRP in connection with this
Agreement is confidential, proprietary information owned by the City. Except as
specifically provided in this Agreement, SRP shall not disclose data generated in
the performance of the services to any third person without the prior written
consent of the City, or its designee.

16) In the event there is a breach of this Agreement, the prevailing Party to litigation
shall be entitled to its reasonable attorney’s fees and court costs. It is further
understood and agreed that in the event any dispute arises regarding this
Agreement or the terms and conditions hereof, the sole venue for litigation
regarding this Agreement shall be in the Courts of Maricopa County, Arizona.

17) This Agreement represents the entire agreement of the Parties and supersedes all
negotiations, representations, prior discussions or preliminary agreements
between the Parties. No statements, warranties or representations of any kind not
created in this Agreement shall in any way bind the Parties. This Agreement can
only be changed or modified by a writing signed by all of the Parties hereto.

18)No term or provision of this Agreement that is determined by a court of
competent jurisdiction to be invalid or unenforceable shall affect the validity or
enforceability of the remaining terms and provisions of this Agreement. Any term
found to be invalid or unenforceable shall be deemed as severable from the
remainder of the Agreement.

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19) This Agreement is not intended to constitute, create, give rise to, or otherwise
recognize a joint venture, partnership or formal business association or
organization of any kind, and the rights and obligations of the Parties shall be
only those expressly set forth in this Agreement. The Parties agree that no
individual performing under this Agreement on behalf of SRP will be considered
a City employee, and that no rights of City civil service, City retirement or City
personnel rules shall accrue to such individual. SRP shall have total
responsibility for all salaries, wages, bonuses, retirement, withholdings, workers’
compensation, other employee benefits, and all taxes and premiums appurtenant
thereto concerning such individuals and shall save and hold harmless the City
with respect thereto.

20) SRP shall comply with all existing and subsequently enacted federal, state and
local laws, ordinances, codes, and regulations that are, or become applicable to
this Agreement. If a subsequently enacted law imposes substantial additional
costs on SRP, a request for an amendment may be submitted.

21) This Agreement is in the nature of a personal services agreement and SRP shall
have no power to assign its rights and obligations under this Agreement without
the prior written consent of the City. Any attempt to assign without such prior
written consent shall be void.

22) This Agreement is may be canceled by City for a conflict of interest pursuant to
Arizona Revised Statutes §38-511.

IN WITNESS HEREOF, each Party has caused the execution of this Agreement by the
undersigned, who is vested with authority to bind such Party to the terms and conditions
herein.

“gRp” “City”
Salt River Valley Water Users’ City of Chandler, an Arizona
Association, an V/V municipal corporation
Andrew Johnson 7 City Representative
Manager

Water Engineering

09/14/2021
Date Signed Title of Representative
APPROVED AS TO FORM Date Signed

)
CITY ATTORNEY MW?

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EXHIBIT A File No: SRP # 2100256
Construction Bid Summary
SRP #2100256
Chandler RWIF
McQueen Road and Queen Creek Road
8/16/2021
SECTION I - Items by SRP.
Item Ttem Description z Unit Quantity Unit Bid Net Bid
1. Construction Engineering - Survey, Inspection. & AsBuilts LS 1 $7,985 $7,985
2. LHTO Delivery Structure # B-064-0021 (Sta. 5+06.3 ) Ls 1 $96,205 $96,205
SECTION I TOTALS $104,190
Summary: SECTION I - Items by SRP $104,190
NET BID = $104,190
NOTES:
J. This Construction Estimate Bid Summary was prepared by SRP Water Construction.
2. All utility conflicts must be resolved and completed prior to the arrival of SRP Construction forces.
3. Items, Restorations, and/or services not specifically listed in the details and quantities above are excluded.
4, Items listed in this Construction Bid Summary constitute a total bid which is valid for 60 days and expires: October 15, 2021

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