Agreement

City of Chandler — Regular Meeting (2022-03-24)

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City Clerk Document No.

City Council Meeting Date: March 24, 2022

CITY OF CHANDLER PURCHASE AGREEMENT
AIR TRAFFIC CONTROL TOWER EQUIPMENT PHASE 2
CITY OF CHANDLER AGREEMENT NO. CM2-035-4452

THIS AGREEMENT (Agreement) is made and entered into by and between the City of Chandler, an
Arizona municipal corporation (City), and Frequentis USA, Inc. a Maryland corporation (Contractor),
(City and Contractor may individually be referred to as Party and collectively referred to as Parties),
made

, 2022 (Effective Date).

RECITALS

A. City proposes to purchase air traffic control tower equipment as more fully described in Exhibit
A, which is attached to and made a part of this Agreement by this reference.

B. Contractor is ready, willing, and able to provide the goods or services described in Exhibit A for
the compensation and fees set forth and as described in Exhibit B, which is attached to and made
a part of this Agreement by this reference.

C. City desires to contract with the Contractor to provide these goods or services under the terms
and conditions set forth in this Agreement.

AGREEMENT

NOW, THEREFORE, in consideration of the premises and the mutual promises contained in this
Agreement, City and Contractor agree as follows:

SECTION I: DEFINITIONS

For purposes of this Agreement, the following definitions apply:
Agreement means the legal agreement executed between the City and the Contractor
City means the City of Chandler, Arizona
Contractor means the individual, partnership, or corporation named in the Agreement
Days means calendar days
May, Should means something that is not mandatory but permissible
Shall, Will, Must means a mandatory requirement

SECTION II: CONTRACTOR’S SERVICES

Contractor must perform in accordance with Exhibit A to the City’s satisfaction within the terms and
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conditions of this Agreement and within the care and skill that a person who provides similar goods
services in Chandler, Arizona exercises under similar conditions. All goods or services furnished by
Contractor under this Agreement must be performed in a skilled and workmanlike manner. Unless
authorized by the City in writing, all fixtures, furnishings, and equipment furnished by Contractor as
part of the goods or services under this Agreement must be new, or the latest model, and of the
most suitable grade and quality for the intended purpose of the goods or services.

SECTION III: PERIOD OF SERVICE

Contractor must perform in accordance with Exhibit A for the term of this Agreement.

Following execution of this Agreement by City, the Contractor will immediately commence work and
will complete all work described within 255 days from the date the Contractor is notified to proceed.

SECTION lV: PAYMENT OF COMPENSATION AND FEES

Unless amended in writing by the Parties, Contractor's compensation and fees as more fully
described in Exhibit B for performance approved and accepted by the City under this Agreement
must not exceed $303,397.93. Contractor must submit requests for payment for goods or services
approved and accepted during the previous billing period and must include, as applicable, detailed
invoices and receipts, a narrative description of the tasks accomplished during the billing period, a
list of any deliverables submitted, and any subcontractor’s or supplier’s actual requests for payment
plus similar narrative and listing of their work. Payment for those goods or services negotiated as a
lump sum will be made in accordance with the percentage of the goods furnished or services
completed during the preceding billing period. Goods or services negotiated as a not-to-exceed fee
will be paid in accordance with the goods furnished or services completed during the preceding
month. All requests for payment must be submitted to the City for review and approval. The City
will make payment for approved and accepted goods or services within 30 days of the City’s receipt
of the request for payment. Contractor bears all responsibility and liability for any and all tax
obligations that result from Contractor’s performance under this Agreement.

SECTION V: GENERAL CONDITIONS

5.1 Records/Audit. Records of the Contractor's direct personnel payroll, reimbursable expenses
pertaining to this Agreement and records of accounts between the City and Contractor must be
kept on the basis of generally accepted accounting principles and must be made available to the
City and its auditors for up to three years following the City’s final acceptance of the goods or
services under this Agreement. The City, its authorized representative, or any federal agency,
reserves the right to audit Contractor's records to verify the accuracy and appropriateness of all
cost and pricing data, including data used to negotiate this Agreement and any amendments. The
City reserves the right to decrease the total amount of Agreement price or payments made under
this Agreement or request reimbursement from the Contractor following final contract payment on
this Agreement if, upon audit of the Contractor's records, the audit discloses the Contractor has
provided false, misleading, or inaccurate cost and pricing data. The Contractor will include a similar
provision in all of its contracts with subcontractors providing goods or services under the
Agreement Documents to ensure that the City, its authorized representative, or the appropriate
federal agency, has access to the subcontractors’ records to verify the accuracy of all cost and pricing
data. The City reserves the right to decrease Contract price or payments made on this Agreement
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or request reimbursement from the Contractor following final payment on this Agreement if the
above provision is not included in subcontractor agreements, and one or more subcontractors
refuse to allow the City to audit their records to verify the accuracy and appropriateness of all cost
and pricing data. If, following an audit of this Agreement, the audit discloses the Contractor has
provided false, misleading, or inaccurate cost and pricing data, and the cost discrepancies exceed
1% of the total Agreement billings, the Contractor will be liable for reimbursement of the
reasonable, actual cost of the audit.

5.2 Alteration in Character of Work. Whenever an alteration in the character of work results in a
substantial change in this Agreement, thereby materially increasing or decreasing the scope of
work, cost of goods, cost of performance, or Project schedule, the goods or services will be
performed as directed by the City. However, before any modified work is started, a written
amendment must be approved and executed by the City and the Contractor. Such amendment
must not be effective until approved by the City. Additions to, modifications, or deletions from this
Agreement as provided herein may be made, and the compensation to be paid to the Contractor
may accordingly be adjusted by mutual agreement of the Parties. It is distinctly understood and
agreed that no claim for extra work done or materials furnished by the Contractor will be allowed
by the City except as provided herein, nor must the Contractor do any work or furnish any materials
not covered by this Agreement unless such work is first authorized in writing. Any such work or
materials furnished by the Contractor without prior written authorization will be at Contractor's
own risk, cost, and expense, and Contractor hereby agrees that without written authorization
Contractor will make no claim for compensation for such work or materials furnished.

5.3 Termination for Convenience. The City and the Contractor hereby agree to the full
performance of the covenants contained herein, except that the City reserves the right, at its
discretion and without cause, to terminate or abandon any purchase or service provided for in
this Agreement, or abandon any portion of the Project for which the Contractor has performed.
In the event the City abandons or suspends the purchase or services, or any part of the
purchase or services as provided in this Agreement, the City will notify the Contractor in writing
and immediately after receiving such notice, the Contractor must discontinue advancing the
work specified under this Agreement. Upon such termination, abandonment, or suspension,
the Contractor must deliver to the City all drawings, plans, specifications, special provisions,
estimates and other work entirely or partially completed, together with all unused materials
supplied by the City. The Contractor must appraise the goods or services Contractor has
completed and submit Contractor's appraisal to the City for evaluation. The City may inspect
the Contractor's goods or services to appraise the status completed. The Contractor will receive
compensation in full for goods provided or services performed to the date of such termination.
The fee will be paid in accordance with Section IV of this Agreement, and as mutually agreed
upon by the Contractor and the City. If there is no mutual agreement on payment, the final
determination will be made in accordance with the Disputes provision in this Agreement.
However, in no event may the payment exceed the payment set forth in this Agreement nor as
amended in accordance with Alteration in Character of Work. The City will make the final
payment within 60 days after the Contractor has delivered the last of the partially completed
items and the Parties agree on the final payment. If the City is found to have improperly
terminated the Agreement for cause or default, the termination will be converted to a
termination for convenience in accordance with the provisions of this Agreement.
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5.4 Termination for Cause. The City may terminate this Agreement for Cause upon the occurrence
of any one or more of the following events: in the event that (a) the Contractor fails to perform
pursuant to the terms of this Agreement, (b) the Contractor is adjudged a bankrupt or insolvent, (c)
the Contractor makes a general assignment for the benefit of creditors, (d) a trustee or receiver is
appointed for Contractor or for any of Contractor’s property (e) the Contractor files a petition to
take advantage of any debtor's act, or to reorganize under the bankruptcy or similar laws, (f) the
Contractor disregards laws, ordinances, rules, regulations or orders of any public body having
jurisdiction, or (g) the Contractor fails to cure default within the time requested. Where Agreement
has been so terminated by City, the termination will not affect any rights of City against Contractor
then existing or which may thereafter accrue.

5.5 Indemnification. The Contractor (lndemnitor) must indemnify, defend, save and hold
harmless the City and its officers, officials, agents and employees (lndemnitee) from any and
all claims, actions, liabilities, damages, losses or expenses (including court costs, attorneys' fees
and costs of claim processing, investigation and litigation) (Claims) caused or alleged to be
caused, in whole or in part, by the wrongful, negligent or willful acts, or errors or omissions of
the Contractor or any of its owners, officers, directors, agents, employees, or subcontractors in
connection with this Agreement. This indemnity includes any claim or amount arising out of or
recovered under workers' compensation law or on account of the failure of the Contractor to
conform to any federal, state or local law, statute, ordinance, rule, regulation or court decree.
The Contractor must indemnify lndemnitee from and against any and all Claims, except those
arising solely from lndemnitee's own negligent or willful acts or omissions. The Contractor is
responsible for primary loss investigation, defense and judgment costs where this
indemnification applies. In consideration of the award of this Agreement, the Contractor agrees
to waive all rights of subrogation against lndemnitee for losses arising from or related to this
Agreement. The obligations of the Contractor under this provision survive the termination or
expiration of this Agreement.

5.6 Insurance Requirements. Contractor must procure insurance under the terms and
conditions and for the amounts of coverage set forth in Exhibit C against claims that may arise
from or relate to performance of the work under this Agreement by Contractor and its agents,
representatives, employees, and subcontractors. Contractor and any subcontractors must
maintain this insurance until all of their obligations have been discharged, including any
warranty periods under this Agreement. These insurance requirements are minimum
requirements for this Agreement and in no way limit the indemnity covenants contained in this
Agreement. The City in no way warrants that the minimum limits stated in Exhibit C are
sufficient to protect the Contractor from liabilities that might arise out of the performance of
the work under this Agreement by the Contractor, the Contractor’s agents, representatives,
employees, or subcontractors. Contractor is free to purchase such additional insurance as may
be determined necessary.

5.7 Cooperation and Further Documentation. The Contractor agrees to provide the City such
other duly executed documents as may be reasonably requested by the City to implement the
intent of this Agreement.

5.8 Notices. Unless otherwise provided, notice under this Agreement must be in writing and
will be deemed to have been duly given and received either (a) on the date of service if
personally served on the party to whom notice is to be given, or (b) on the date notice is sent if
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by electronic mail, or (c) on the third day after the date of the postmark of deposit by first class
United States mail, registered or certified, postage prepaid and properly addressed as follows:

For the City
For the Contractor
Name: Christina Pryor Name: Robert R. Call
Title: Purchasing Manager Title: Director, Contracts
Address: 175 S. Arizona Ave., 3rd Floor Address: 8661 Robert Fulton Road, Suite 100
Chandler, AZ 85225 Columbia, MD 21046
Phone: 480-782-2403 Phone: 301-657-8001, 7967
Email: christina.pryor@chandleraz.gov Email: robert.call@frequentis.com

5.9 Successors and Assigns. City and Contractor each bind itself, its partners, successors,
assigns, and legal representatives to the other party to this Agreement and to the partners,
successors, assigns, and legal representatives of such other party in respect to all covenants of
this Agreement. Neither the City nor the Contractor may assign, sublet, or transfer its interest
in this Agreement without the written consent of the other party. In no event may any
contractual relation be created between any third party and the City.

5.10 Disputes. In any dispute arising out of an interpretation of this Agreement or the duties
required not disposed of by agreement between the Contractor and the City, the final
determination at the administrative level will be made by the City Purchasing and Materials
Manager.

5.11 Completeness and Accuracy of Contractor's Work. The Contractor must be responsible for
the completeness and accuracy of Contractor's services, data, and other work prepared or
compiled under Contractor's obligation under this Agreement and must correct, at Contractor's
expense, all willful or negligent errors, omissions, or acts that may be discovered. The fact that
the City has accepted or approved the Contractor's work will in no way relieve the Contractor
of any of Contractor's responsibilities.

5.12 Withholding Payment. The City reserves the right to withhold funds from the Contractor's
payments up to the amount equal to the claims the City may have against the Contractor until
such time that a settlement on those claims has been reached.

5.13 City's Right of Cancellation. The Parties acknowledge that this Agreement is subject to
cancellation by the City under the provisions of Section 38-511, Arizona Revised Statutes
(A.R.S.).

5.14 Independent Contractor. For this Agreement the Contractor constitutes an independent
contractor. Any provisions in this Agreement that may appear to give the City the right to direct
the Contractor as to the details of accomplishing the work or to exercise a measure of control
over the work means that the Contractor must follow the wishes of the City as to the results of
the work only. These results must comply with all applicable laws and ordinances.

5.15 Project Staffing. Prior to the start of any work under this Agreement, the Contractor must
assign to the City the key personnel that will be involved in furnishing goods or performing
services prescribed in the Agreement. The City may acknowledge its acceptance of such
personnel to furnish goods or perform services under this Agreement. At any time hereafter
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that the Contractor desires to change key personnel while performing under the Agreement,
the Contractor must submit the qualifications of the new personnel to the City for prior
approval. The Contractor will maintain an adequate and competent staff of qualified persons,
as may be determined by the City, throughout the performance of this Agreement to ensure
acceptable and timely completion of the Scope of Work. If the City objects, with reasonable
cause, to any of the Contractor's staff, the Contractor must take prompt corrective action
acceptable to the City and, if required, remove such personnel from the Project and replace
with new personnel agreed to by the City.

5.16 Subcontractors. Prior to beginning the work, the Contractor must furnish the City for
approval the names of subcontractors to be used under this Agreement. Any subsequent
changes are subject to the City’s written prior approval.

5.17 Force Majeure. If either party is delayed or prevented from the performance of any act
required under this Agreement by reason of acts of God or other cause beyond the control and
without fault of the Party (financial inability excepted), performance of that act may be excused,
but only for the period of the delay, if the Party provides written notice to the other Party within
ten days of such act. The time for performance of the act may be extended for a period
equivalent to the period of delay from the date written notice is received by the other Party.

5.18 Compliance with Laws. Contractor understands, acknowledges, and agrees to comply with
the Americans with Disabilities Act, the Immigration Reform and Control Act of 1986 and the
Drug Free Workplace Act of 1989. All services performed by Contractor must also comply with
all applicable City of Chandler codes, ordinances, and requirements. Contractor agrees to
permit the City to verify Contractor’s compliance.

5.19 No Israel Boycott. By entering into this Agreement, Contractor certifies that Contractor is
not currently engaged in, and agrees for the duration of the Agreement, not to engage in a
boycott of Israel as defined by state statute.

5.20 Legal Worker Requirements. A.R.S. § 41-4401 prohibits the City 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 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§ 23-214, subsection A. A breach of this warranty will be deemed a
material breach of the Agreement and may be subject to penalties up to and including
termination of the Agreement. City retains the legal right to inspect the papers of any
Contractor’s or subcontractor’s employee who provides goods or services under this
Agreement to ensure that the Contractor and subcontractors comply with the warranty under
this provision.

5.21 Lawful Presence Requirement. A.R.S. §§ 1-501 and 1-502 prohibit the City from awarding
a contract to any natural person who cannot establish that such person is lawfully present in
the United States. To establish lawful presence, a 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. This requirement does not apply
to business organizations such as corporations, partnerships, or limited liability companies.

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5.22 Covenant Against Contingent Fees. Contractor warrants that no person has been
employed or retained to solicit or secure this Agreement upon an agreement or understanding
for a commission, percentage, brokerage, or contingent fee, and that no member of the
Chandler City Council, or any City employee has any interest, financially, or otherwise, in
Contractor’s firm. For breach or violation of this warrant, the City may annul this Agreement
without liability or, at its discretion, to deduct from the Agreement price or consideration, the
full amount of such commission, percentage, brokerage, or contingent fee.

5.23 Non-Waiver Provision. The failure of either Party to enforce any of the provisions of this
Agreement or to require performance of the other Party of any of the provisions hereof must
not be construed to be a waiver of such provisions, nor must it affect the validity of this
Agreement or any part thereof, or the right of either Party to thereafter enforce each and every
provision.

5.24 Disclosure of Information Adverse to the City’s Interests. To evaluate and avoid potential
conflicts of interest, the Contractor must provide written notice to the City, as set forth in this
Section, of any work or services performed by the Contractor for third parties that may involve
or be associated with any real property or personal property owned or leased by the City. Such
notice must be given seven business days prior to commencement of the services by the
Contractor for a third party, or seven business days prior to an adverse action as defined below.
Written notice and disclosure must be sent to the City’s Purchasing and Materials Manager. An
adverse action under this Agreement includes, but is not limited to: (a) using data as defined in
the Agreement acquired in connection with this Agreement to assist a third party in pursuing
administrative or judicial action against the City; or (b) testifying or providing evidence on behalf
of any person in connection with an administrative or judicial action against the City; or (c) using
data to produce income for the Contractor or its employees independently of performing the
services under this Agreement, without the prior written consent of the City. Contractor
represents that except for those persons, entities, and projects identified to the City, the
services performed by the Contractor under this Agreement are not expected to create an
interest with any person, entity, or third party project that is or may be adverse to the City’s
interests. Contractor's failure to provide a written notice and disclosure of the information as
set forth in this Section constitute a material breach of this Agreement.

5.25 Data Confidentiality and Data Security. As used in the Agreement, data means all
information, whether written or verbal, including plans, photographs, studies, investigations, audits,
analyses, samples, reports, calculations, internal memos, meeting minutes, data field notes, work
product, proposals, correspondence and any other similar documents or information prepared by,
obtained by, or transmitted to the Contractor or its subcontractors in the performance of this
Agreement. The Parties agree that all data, regardless of form, including originals, images, and
reproductions, prepared by, obtained by, or transmitted to the Contractor or its subcontractors in
connection with the Contractor's or its subcontractor’s performance of this Agreement is
confidential and proprietary information belonging to the City. Except as specifically provided in this
Agreement, Contractor or its subcontractors must not divulge data to any third party without the
City’s prior written consent. Contractor or its subcontractors must not use the data for any purposes
except to perform the services required under this Agreement. These prohibitions do not apply to
the following data provided to the Contractor or its subcontractors have first given the required
notice to the City: (a) data which was known to the Contractor or its subcontractors prior to its
performance under this Agreement unless such data was acquired in connection with work
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performed for the City; or (b) data which was acquired by the Contractor or its subcontractors in its
performance under this Agreement and which was disclosed to the Contractor or its subcontractors
by a third party, who to the best of the Contractor's or its subcontractors knowledge and belief, had
the legal right to make such disclosure and the Contractor or its subcontractors are not otherwise
required to hold such data in confidence; or (c) data which is required to be disclosed by virtue of
law, regulation, or court order, to which the Contractor or its subcontractors are subject. In the event
the Contractor or its subcontractors are required or requested to disclose data to a third party, or
any other information to which the Contractor or its subcontractors became privy as a result of any
other contract with the City, the Contractor must first notify the City as set forth in this Section of
the request or demand for the data. The Contractor or its subcontractors must give the City
sufficient facts so that the City can be given an opportunity to first give its consent or take such
action that the City may deem appropriate to protect such data or other information from
disclosure. Unless prohibited by law, within ten calendar days after completion or termination of
services under this Agreement, the Contractor or its subcontractors must promptly deliver, as set
forth in this Section, a copy of all data to the City. All data must continue to be subject to the
confidentiality agreements of this Agreement. Contractor or its subcontractors assume all liability
to maintain the confidentiality of the data in its possession and agrees to compensate the City if any
of the provisions of this Section are violated by the Contractor, its employees, agents or
subcontractors. Solely for the purposes of seeking injunctive relief, it is agreed that a breach of this
Section must be deemed to cause irreparable harm that justifies injunctive relief in court. Contractor
agrees that the requirements of this Section must be incorporated into all subcontracts entered
into by Contractor. A violation of this Section may result in immediate termination of this Agreement
without notice.

5.26 Personal Identifying Information-Data Security. Personal identifying information, financial
account information, or restricted City information, whether electronic format or hard copy,
must be secured and protected at all times by Contractor and any of its subcontractors. At a
minimum, Contractor must encrypt or password-protect electronic files. This includes data
saved to laptop computers, computerized devices, or removable storage devices. When
personal identifying information, financial account information, or restricted City information,
regardless of its format, is no longer necessary, the information must be redacted or destroyed
through appropriate and secure methods that ensure the information cannot be viewed,
accessed, or reconstructed. In the event that data collected or obtained by Contractor or its
subcontractors in connection with this Agreement is believed to have been compromised,
Contractor or its subcontractors must immediately notify the City contact. Contractor agrees
to reimburse the City for any costs incurred by the City to investigate potential breaches of this
data and, where applicable, the cost of notifying individuals who may be impacted by the
breach. Contractor agrees that the requirements of this Section must be incorporated into all
subcontracts entered into by Contractor. It is further agreed that a violation of this Section must
be deemed to cause irreparable harm that justifies injunctive relief in court. A violation of this
Section may result in immediate termination of this Agreement without notice. The obligations
of Contractor or its subcontractors under this Section must survive the termination of this
Agreement.

5.27 Jurisdiction and Venue. This Agreement is made under, and must be construed in
accordance with and governed by the laws of the State of Arizona without regard to the
conflicts or choice of law provisions thereof. Any action to enforce any provision of this
Agreement or to obtain any remedy with respect hereto must be brought in the courts located
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in Maricopa County, Arizona, and for this purpose, each Party hereby expressly and irrevocably
consents to the jurisdiction and venue of such court.

5.28 Survival. All warranties, representations, and indemnifications by the Contractor must
survive the completion or termination of this Agreement.

5.29 Modification. Except as expressly provided herein to the contrary, no supplement,
modification, or amendment of any term of this Agreement will be deemed binding or effective
unless in writing and signed by the Parties.

5.30 Severability. If any provision of this Agreement or the application to any person or
circumstance may be invalid, illegal or unenforceable to any extent, the remainder of this
Agreement and the application will not be affected and will be enforceable to the fullest extent
permitted by law.

5.31 Integration. This Agreement contains the full agreement of the Parties. Any prior or
contemporaneous written or oral agreement between the Parties regarding the subject matter
is merged and superseded.

5.32 Time is of the Essence. Time of each of the terms, covenants, and conditions of this
Agreement is hereby expressly made of the essence.

5.33 Date of Performance. If the date of performance of any obligation or the last day of any
time period provided for should fall on a Saturday, Sunday, or holiday for the City, the
obligation will be due and owing, and the time period will expire, on the first day after which is
not a Saturday, Sunday or legal City holiday. Except as may otherwise be set forth in this
Agreement, any performance provided for herein will be timely made if completed no later
than 5:00 p.m. (Chandler time) on the day of performance.

5.34 Third Party Beneficiary. Nothing under this Agreement will be construed to give any rights
or benefits in the Agreement to anyone other than the City and the Contractor, and all duties
and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive
benefit of City and the Contractor and not for the benefit of any other party.

5.35 Conflict in Language. All work performed must conform to all applicable City of Chandler
codes, ordinances, and requirements as outlined in this Agreement. If there is a conflict in
interpretation between provisions in this Agreement and those in the Exhibits, the provisions
in this Agreement prevail.

5.36 Document/Information Release. Documents and materials released to the Contractor,
which are identified by the City as sensitive and confidential, are the City’s property. The
document/material must be issued by and returned to the City upon completion of the services
under this Agreement. Contractor’s secondary distribution, disclosure, copying, or duplication
in any manner is prohibited without the City’s prior written approval. The document/material
must be kept secure at all times. This directive applies to all City documents, whether in
photographic, printed, or electronic data format.

5.37 Exhibits. The following exhibits are made a part of this Agreement and are incorporated
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by reference:

Exhibit A - Project Description/Scope of Work
Exhibit B - Compensation and Fees
Exhibit C - Insurance Requirements
Exhibit D - Special Conditions

5.38 Special Conditions. As part of the goods furnished or the services Contractor provides
under this Agreement, Contractor agrees to comply with and fully perform the special terms
and conditions set forth in Exhibit D, which is attached to and made a part of this Agreement.

5.39 Cooperative Use of Agreement. In addition to the City of Chandler and with approval of
the Contractor, this Agreement may be extended for use by other municipalities, school
districts and government agencies of the State. Any such usage by other entities must be in
accordance with the ordinance, charter and/or procurement rules and regulations of the
respective political entity.

If required to provide services on a school district property at least five times during a month,
Contractor will submit a full set of fingerprints to the school of each person or employee who
may provide such service. The District will conduct a fingerprint check in accordance with A.R.S.
41-1750 and Public Law 92-544 of all Contractors, subcontractors or vendors and their
employees for which fingerprints are submitted to the District. Additionally, the Contractor will
comply with the governing body fingerprinting policies of each individual school district/public
entity. Contractor, sub-contractors, vendors and their employees will not provide services on
school district properties until authorized by the District.

Orders placed by other agencies and payment thereof will be the sole responsibility of that
agency. The City will not be responsible for any disputes arising out of transactions made by
other agencies who utilize this Agreement.

5.40 Non-Discrimination and Anti-Harassment Laws. Contractor must comply with all
applicable City, state, and federal non-discrimination and anti-harassment laws, rules, and
regulations.

5.41 Licenses and Permits. Beginning with the Effective Date and for the full term of this
Agreement, Contractor must maintain all applicable City, state, and federal licenses and
permits required to fully perform Contractor’s services under this Agreement.

5.42 Warranties. Unless otherwise provided in Exhibit D, the Contractor must furnish a one-
year warranty on all work and services performed under this Agreement. Contractor must
furnish, or cause to be furnished, a two-year warranty on all fixtures, furnishings, and
equipment furnished by Contractor, subcontractors, or suppliers under this Agreement. Any
defects in design, workmanship, or materials that do not comply with this Agreement must be
corrected by Contractor (including, but not limited to, all parts and labor) at Contractor’s sole
cost and expense. All written warranties and redlines for as-built conditions must be delivered
to the City on or before the City’s final acceptance of Contractor’s services under this
Agreement.

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5.43 Liens. The Contractor warrants that the materials supplied under this Agreement are free of
liens and will remain free of liens.

5.44 Quality. Unless otherwise modified elsewhere in these terms and conditions, the Contractor
warrants that, for one year after acceptance by the City of the materials, they will be (a) of a quality
to pass without objection in the trade under the Agreement description, (b) fit for the intended
purposes for which the materials are used, (c) within the variations permitted by the Agreement
and are of even kind, quantity, and quality within each unit and among all units, (d) adequately
contained, packaged and marked as the Agreement may require, and (e) conform to the
Contractor’s written promises or affirmations of fact.

5.45 Fitness. The Contractor warrants that any material supplied to City will fully conform to all
requirements of the Agreement and all the Contractor’s representations, and will be fit for all
purposes and uses required by the Agreement.

5.46 Inspection/Testing. The warranties set forth in the Agreement are not affected by the City’s
inspection or testing of or payment for the materials by the City.

5.47 Packing and Shipping. The Contractor will be responsible for industry standard packing, which
conforms to requirements of carrier’s tariffs and Interstate Commerce Commission (ICC)
regulations. Containers must be clearly marked as to lot number, destination, address, and
purchase order number.

5.48 Delivery. All prices are F.O.B. Destination and include all delivery and unloading at the specified
destinations. The Contractor will retain title and control of all goods until they are delivered and
accepted by the City. All risk of transportation and all related charges will be the responsibility of
the Contractor. All claims for visible or concealed damage will be filed by the Contractor. The City
will notify the Contractor promptly of any damaged goods and will assist the Contractor in arranging
for inspection.

5.49 Risk of Loss. The Contractor will bear all loss of conforming material covered under this
Agreement until received by authorized personnel at the location designated in the purchase order
or Agreement. Mere receipt does not constitute final acceptance. The risk of loss for
nonconforming materials will remain with the Contractor regardless of receipt.

5.50 Current Products. All products offered in response to this solicitation will be in current and
ongoing production; will have been formally announced for general marketing purposes; will be a
model or type currently functioning in a user (paying customer) environment and capable of
meeting or exceeding all specifications and requirements set forth in the City’s solicitation.
5.51 Annual Usage Report. Upon request, the Contractor will furnish to the City an annual usage
report delineating the acquisition activity governed by the Agreement. The format of the report will
be approved by the City and will disclose the quantity and the dollar value of each agreement item
by individual purchasing unit.
5.52 Catalogs/Agreement Price Listing. As applicable, the Contractor will furnish to all requesting
departments catalogs at no cost, which will outline agreement prices.

DocuSign Envelope ID: 2852700C-E65F-451C-AE97-76EEC77DB972

EXHIBIT A TO AGREEMENT
SCOPE OF WORK

The Contractor will furnish the following equipment:
▪
One (1) central voice switch
▪
One (1) recorder
▪
One (1) ATIS
▪
One (1) additional DIVOS client
▪
Commissioning services for the equipment above

Delivery time for new equipment will not exceed 210 days.

The Contractor warrants that replacement and repair parts will be available for all equipment
furnished for a minimum of ten (10) years following equipment installation.

The Contractor warrants that all equipment furnished meets all applicable FAA and FCC
requirements.

The Contractor will provide all installation and operating manuals for the equipment provided
upon delivery.

The Contractor will provide a 24-month warranty on all equipment provided and a 12-month
warranty on all services provided.

The Contractor will provide all warranty documents for the equipment provided upon
delivery.

Commissioning service within the allotted 255 days is dependent on City’s completion of the
system installation in accordance with a mutually agreeable installation and commissioning
schedule.

DocuSign Envelope ID: 2852700C-E65F-451C-AE97-76EEC77DB972

EXHIBIT B TO AGREEMENT
COMPENSATION AND FEES

Base Pricing

Item
Quantity
UOM
Cost
Extended Cost
Central Voice Switch
1
EA
$166,303.95
$166,303.95
Recorder
1
EA
$34,473.46
$34,473.46
ATIS
1
EA
$56,300.17
$56,300.17
Commissioning

$20,209.97
Subtotal before Taxes,
without Options
$277,287.54
Arizona Transaction
Privilege (Sales) Tax –
5.60%
$15,528.10
City of Chandler
Transaction Privilege
(Sales) Tax – 1.50%
$4,159.31
Total Taxes
$19,687.42
Grand Total
$296,974.96

Additional DIVOS Client

Item
Quantity
UOM
Cost
Extended Cost
Additional DIVOS Client
1
EA
$5,586.55
$5,997.17
Subtotal before Taxes,
without Options

$5,997.17
Arizona Transaction
Privilege (Sales) Tax –
5.60%
$335.84
City of Chandler
Transaction Privilege
(Sales) Tax – 1.50%
$89.96
Total Taxes
$425.80
Grand Total
$6,422.97

DocuSign Envelope ID: 2852700C-E65F-451C-AE97-76EEC77DB972

EXHIBIT C TO AGREEMENT
INSURANCE
INSURANCE

General.

A.
At the same time as execution of this Agreement, the Contractor shall furnish the
City a certificate of insurance on a standard insurance industry ACORD form. The
ACORD form must be issued by an insurance company authorized to transact
business in the State of Arizona possessing a current A.M. Best, Inc. rating of A-7, or
better and legally authorized to do business in the State of Arizona with policies and
forms satisfactory to City. Provided, however, the A.M. Best rating requirement
shall not be deemed to apply to required Workers’ Compensation coverage.

B.
The Contractor and any of its subcontractors shall procure and maintain, until all of
their obligations have been discharged, including any warranty periods under this
Agreement are satisfied, the insurances set forth below.

C.
The insurance requirements set forth below are minimum requirements for this
Agreement and in no way limit the indemnity covenants contained in this
Agreement.

D.
The City in no way warrants that the minimum insurance limits contained in this
Agreement are sufficient to protect Contractor from liabilities that might arise out
of the performance of the Agreement services under this Agreement by Contractor,
its agents, representatives, employees, subcontractors, and the Contractor is free
to purchase any additional insurance as may be determined necessary.

E.
Failure to demand evidence of full compliance with the insurance requirements in
this Agreement or failure to identify any insurance deficiency will not relieve the
Contractor from, nor will it be considered a waiver of its obligation to maintain the
required insurance at all times during the performance of this Agreement.

F.
Use of Subcontractors: If any work is subcontracted in any way, the Contractor shall
execute a written contract with Subcontractor containing the same Indemnification
Clause and Insurance Requirements as the City requires of the Contractor in this
Agreement. The Contractor is responsible for executing the Agreement with the
Subcontractor and obtaining Certificates of Insurance and verifying the insurance
requirements.

Minimum Scope and Limits of Insurance. The Contractor shall provide coverage with limits of
liability not less than those stated below.

A.
Commercial General Liability-Occurrence Form. Contractor must maintain
“occurrence” form Commercial General Liability insurance with a limit of not less
than $2,000,000 for each occurrence, $4,000,000 aggregate. Said insurance must
also include coverage for products and completed operations, independent
DocuSign Envelope ID: 2852700C-E65F-451C-AE97-76EEC77DB972

contractors, personal injury and advertising injury. If any Excess insurance is utilized
to fulfill the requirements of this paragraph, the Excess insurance must be “follow
form” equal or broader in coverage scope than underlying insurance.

B.
Automobile Liability-Any Auto or Owned, Hired and Non-Owned Vehicles
Vehicle Liability: Contractor must maintain Business/Automobile Liability insurance
with a limit of $1,000,000 each accident on Contractor owned, hired, and non-
owned vehicles assigned to or used in the performance of the Contractor’s work or
services under this Agreement. If any Excess or Umbrella insurance is utilized to
fulfill the requirements of this paragraph, the Excess or Umbrella insurance must
be “follow form” equal or broader in coverage scope than underlying insurance.

C.
Workers Compensation and Employers Liability Insurance: Contractor must maintain
Workers Compensation insurance to cover obligations imposed by federal and state
statutes having jurisdiction of Contractor employees engaged in the performance
of work or services under this Agreement and must also maintain Employers’
Liability insurance of not less than $1,000,000 for each accident and $1,000,000
disease for each employee.

Additional Policy Provisions Required.

A. Self-Insured Retentions or Deductibles. Any self-insured retentions and deductibles must
be declared and approved by the City. If not approved, the City may require that the
insurer reduce or eliminate any deductible or self-insured retentions with respect to
the City, its officers, officials, agents, employees, and volunteers.

1. The Contractor’s insurance must contain broad form contractual liability
coverage.

2. The Contractor's insurance coverage must be primary insurance with respect to
the City, its officers, officials, agents, and employees. Any insurance or self-
insurance maintained by the City, its officers, officials, agents, and employees
shall be in excess of the coverage provided by the Contractor and must not
contribute to it.

3. The Contractor's insurance must apply separately to each insured against whom
claim is made or suit is brought, except with respect to the limits of the insurer's
liability.

4. Coverage provided by the Contractor must not be limited to the liability
assumed under the indemnification provisions of this Agreement.

5. The policies must contain a severability of interest clause and waiver of
subrogation against the City, its officers, officials, agents, and employees, for
losses arising from Work performed by the Contractor for the City.

6. The Contractor, its successors and or assigns, are required to maintain
Commercial General Liability insurance as specified in this Agreement for a
DocuSign Envelope ID: 2852700C-E65F-451C-AE97-76EEC77DB972

minimum period of three years following completion and acceptance of the
Work. The Contractor must submit a Certificate of Insurance evidencing
Commercial General Liability insurance during this three year period containing
all the Agreement insurance requirements, including naming the City of
Chandler, its agents, representatives, officers, directors, officials and employees
as Additional Insured as required.

7. If a Certificate of Insurance is submitted as verification of coverage, the City will
reasonably rely upon the Certificate of Insurance as evidence of coverage but
this acceptance and reliance will not waive or alter in any way the insurance
requirements or obligations of this Agreement.

B.
Insurance Cancellation During Term of Contract/Agreement.
1. If any of the required policies expire during the life of this Contract/Agreement,
the Contractor must forward renewal or replacement Certificates to the City
within ten days after the renewal date containing all the required insurance
provisions.
2. Each insurance policy required by the insurance provisions of this
Contract/Agreement shall provide the required coverage and shall not be
suspended, voided or canceled except after 30 days prior written notice has
been given to the City, except when cancellation is for non-payment of premium,
then ten days prior notice may be given. Such notice shall be sent directly to
Chandler Law-Risk Management Department, Post Office Box 4008, Mailstop
628, Chandler, Arizona 85225. If any insurance company refuses to provide the
required notice, the Contractor or its insurance broker shall notify the City of
any cancellation, suspension, non-renewal of any insurance within seven days
of receipt of insurers’ notification to that effect.

A.
City as Additional Insured. The policies are to contain, or be endorsed to contain,
the following provisions:

1. The Commercial General Liability and Automobile Liability policies are to
contain, or be endorsed to contain, the following provisions: The City, its
officers, officials, agents, and employees are additional insureds with respect to
liability arising out of activities performed by, or on behalf of, the Contractor
including the City's general supervision of the Contractor; Products and
Completed operations of the Contractor; and automobiles owned, leased, hired,
or borrowed by the Contractor.

2. The City, its officers, officials, agents, and employees must be additional
insureds to the full limits of liability purchased by the Contractor even if those
limits of liability are in excess of those required by this Agreement.

DocuSign Envelope ID: 2852700C-E65F-451C-AE97-76EEC77DB972

EXHIBIT D TO AGREEMENT
SPECIAL CONDITIONS

NONE

DocuSign Envelope ID: 2852700C-E65F-451C-AE97-76EEC77DB972