Agreement - USP Technologies

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, > CHANDLER
WS arizona

City Clerk Document No.

City Council Meeting Date:

CITY OF CHANDLER SERVICES AGREEMENT
IRON SALT FOR ODOR & CORROSION CONTROL
CITY OF CHANDLER AGREEMENT NO. WW3-885-4614

THIS AGREEMENT (Agreement) is made and entered into by and between the City of Chandler, an
Arizona municipal corporation (City), and US Peroxide LLC. dba USP Technologies, a Delaware
corporation (Contractor), (City and Contractor may individually be referred to as Party and
collectively referred to as Parties) and made , 2023 (Effective
Date).

RECITALS

A. City proposes to obtain a vendor to provide a turnkey non-hazardous iron salt product and
dosing station 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 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 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

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SECTION II: CONTRACTOR'S SERVICES

Contractor must perform the services described in Exhibit A to the City’s satisfaction within the
terms and conditions of this Agreement and within the care and skill that a person who provides
similar services in Chandler, Arizona exercises under similar conditions. All work 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 work 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 work or service.

SECTION III: PERIOD OF SERVICE

Contractor must perform the services described in Exhibit A for the term of this Agreement. The
term of the Agreement is 1 year (s), and begins on September 21, 2023, and ends on September 20,
2024, unless sooner terminated in accordance with the provisions of this Agreement. The City and
the Contractor may mutually agree to extend the Agreement for up to 4 additional terms of 1 year
each, or portions thereof. The City reserves the right, at its sole discretion, to extend the Agreement
for up to 60 days beyond the expiration of any extension term.

SECTION IV: PAYMENT OF COMPENSATION AND FEES

4.1 Fees. Unless amended in writing by the Parties, Contractor's compensation and fees as more
fully described in Exhibit B for performance of the services approved and accepted by the City under
this Agreement must not exceed $650,000.00. Contractor must submit requests for payment for
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 services negotiated
as a lump sum will be made in accordance with the percentage of the work completed during the
preceding billing period. Services negotiated as a not-to-exceed fee will be paid in accordance with
the work completed on the service 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 services within 30 days of the City’s receipt of the request for payment.

4.2 Applicable Taxes. The Contractor will pay all applicable taxes. The City is subject to all applicable
state and local transaction privilege taxes. To the extent any state and local transaction privilege
taxes apply to sales made under the terms of this Agreement, it is the responsibility of the
Contractor to collect and remit all applicable taxes to the proper taxing jurisdiction of authority.

4.3 Tax Indemnification. The Contractor and all subcontractors will pay all Federal, state, and local
taxes applicable to its operation and any persons employed by the Contractor. The Contractor will
and require all subcontractors to hold the City harmless from any responsibility for taxes, damages,
and interest, if applicable, contributions required under Federal, state, and local laws and
regulations and any other costs including transaction privilege taxes, unemployment compensation
insurance, Social Security, and Worker's Compensation.

4.4 All prices offered herein shall be firm against any increase for the initial term of the Agreement.

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Prior to commencement of subsequent renewal terms, the City may approve a fully documented
request for a price adjustment. The City shall determine whether any requested price increases for
extension terms is acceptable to the City. If the City approves the price increase, the price shall
remain firm for the renewal term for which it was requested. If a price increase is agreed upon by
the Parties a written Agreement Amendment shall be approved and executed by the Parties.

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 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 directly relating to this
Agreement only at reasonable times and upon reasonable notice at its cost and expense. 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 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 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
services, cost of performance, or Project schedule, the work 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 and Contractor. 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 each Party reserves the right, at

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its discretion and without cause, to terminate or abandon any service provided for in this
Agreement or abandon any portion of the Project for which services have been performed by
the Contractor. In the event the City abandons or suspends the services, or any part of the
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 work Contractor has completed and
submit Contractor's appraisal to the City for evaluation. The City may inspect the Contractor's
work to appraise the work completed. The Contractor will receive compensation in full for
services performed to the date of such termination. The fee shall 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.

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 with a 30-day cure period after notice of failure, (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 (Indemnitor) must indemnify, defend, save and hold
harmless the City and its officers, officials, agents and employees (Indemnitee) 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 Indemnitee from and against any and all Claims, except those
arising from the proportionate extent of Indemnitee'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 Indemnitee 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.

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5.6 Limitation on Liability. THE TOTAL LIABILITY OF CONTRACTOR AND ITS SUBSIDIARIES,
AFFILIATES, EMPLOYEES, DIRECTORS, OFFICERS AND AGENTS ARISING OUT OF PERFORMANCE,
NONPERFORMANCE, OR OBLIGATIONS IN CONNECTION WITH THE DESIGN, MANUFACTURE, SALE,
DELIVERY, AND/OR USE OF GOODS AND/OR SERVICES IN NO CIRCUMSTANCE INCLUDES ANY
LIQUIDATED, PENALTY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, NOR EXCEED AN
AMOUNT THAT IS UNREASONABLY DISPROPORTIONATE TO THREE TIMES THE TOTAL AMOUNT OF
COMPENSATION ACTUALLY PAID TO CONTRACTOR UNDER THE AGREEMENT, EXCEPT ONLY IN THE
CASE OF DAMAGES ARISING DUE TO CONTRACTOR'S, GROSS NEGLIGENCE OR WILLFUL ACTS,
ERRORS, OR OMISSIONS OR BREACH OF CONFIDENTIALITY.

5.7 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.

5.8 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.

5.9 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
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: — Christian Jonson Name: Brenda Blake
Title: Procurement Officer Title: Territory Manager
Address: 175 South Arizona Avenue Address: 5640 Cox Road
Chandler, AZ 85225 Glen Allen, VA 23060
Phone: 480-784-2405 Phone: 720-660-0066
Email: — Christian.jonson@chandleraz.gov Email: bblake@usptecnologies.com

5.10 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.

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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.

5.12 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 subject to
the terms hereof. “Acceptance” of goods and services shall be deemed upon delivery or
performance as applicable 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.

5.13 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. Notwithstanding, City bears the
customary burden of proof with respect to any amounts invoiced by Contractor but not paid by the
invoice due date.

5.14 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.).

5.15 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.

5.16 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 performing services prescribed in
the Agreement. The City may acknowledge its acceptance of such personnel to perform
services under this Agreement. At any time hereafter 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 Services. 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.

5.17 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.

5.18 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

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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.

5.19 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.

5.20 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.

5.21 Legal Worker Requirements. A.R.S. 8 41-4401 prohibits the City from awarding a contract
to any contractor who fails, or whose subcontractors fail, to comply with A.R.S. 8 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 with8 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 services under this Agreement to
ensure that the Contractor and subcontractors comply with the warranty under this provision.

5.22 Lawful Presence Requirement. A.R.S. 88 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.

5.32 Forced Labor of Ethnic Uyghurs Prohibited. By entering into this Agreement, Contractor
certifies and agrees Contractor does not currently use and will not use for the term of this
Agreement: (i) the forced labor of ethnic Uyghurs in the People's Republic of China; or (ii) any
goods or services produced by the forced labor of ethnic Uyghurs in the People's Republic of
China; or (iii) 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.

5.24 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.

5.25 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

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Agreement or any part thereof, or the right of either Party to thereafter enforce each and every
provision.

5.65 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.

5.27 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.. 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: (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 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. Subject to
the limitations set out in section 5.6, Contractor or its subcontractors assume all liability to maintain

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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.

5.28 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 use appropriate encryption techniques. This includes laptop
computers, computerized devices, or removable storage devices that data is saved to.

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 notify the City contact without undue delay. 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.

5.29 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
in Maricopa County, Arizona, and for this purpose, each Party hereby expressly and irrevocably
consents to the jurisdiction and venue of such court.

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

5.31 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.

5.32 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.

5.33 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.

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5.34 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.

5.35 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.

5.36 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.

5.37 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.

5.38 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.

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

Exhibit A - Project Description/Scope of Services
Exhibit B - Compensation and Fees

Exhibit C - Insurance Requirements

Exhibit D - Special Conditions

5.40 Special Conditions. As part of 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.

5.41 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

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respective political entity. If required to provide services on a school district property at least
five times during a month, the 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. The 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.

5.42 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.

5.43 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.

5.44 Warranties. Services are warranted for 90 days after performance. Contractor warrants to City
that any goods supplied hereunder conforms to its written warranty set forth in its user manual in
effect on the date of purchase, or, if there is no express warranty therein, that each of the goods
will be free from defects in material and workmanship and will conform to the manufacturer's
quoted specifications for twelve (12) months from delivery. Warranties do not extend to
consumable items such as, without limitation, reagents, batteries, mercury cells, and light bulbs If
Contractor breaches this warranty and the City notifies Contractor of such breach within 30 days of
the end of the applicable warranty period, Contractor will, at its option, either replace or repair any
nonconforming goods, or re-perform any nonconforming services, or refund the amounts paid by
Customer to Supplier for the nonconforming goods and/or services. THIS IS THE EXCLUSIVE
REMEDY FOR ANY BREACH OF WARRANTY. CONTRACTOR EXPRESSLY DISCLAIMS ANY REMEDIES OF
“COVER” AND ANY WARRANTIES IMPLIED BY LAW, INCLUDING BUT NOT LIMITED TO ANY WARRANTY
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. The Services shall be limited to
those services specifically described herein. For the avoidance of doubt, and without limitation,
Contractor has no responsibility for the supervision or actions of City’s employees or contractors or
for non-Contractor items (e.g., chemicals or equipment) and disclaims all liability and responsibility
for any loss or damage that may be suffered as a result of such actions or items, or any other actions
or items not under Contractor's control.

5.45 Emergency Purchases. City reserves the rights to purchase from other sources those
items, which are required on an emergency basis and cannot be supplied immediately by the
Contractor.

5.46 Non-Exclusive Agreement. This agreement is for the sole convenience of the City of
Chandler. The City reserves the right to obtain like goods or services from another source when
necessary.

5.47 Budget Approval Into Next Fiscal Year. This Agreement will commence on the Effective Date
and continue in full force and effect until it is terminated or expires in accordance with the

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provisions of this Agreement. The Parties recognize that the continuation of this Agreement after
the close of the City's fiscal year, which ends on June 30 of each year, is subject to the City Council's
approval of a budget that includes an appropriation for this item as expenditure. The City does not
represent that this budget item will be actually adopted. This determination is solely made by the
City Council at the time Council adopts the budget.

5.48 Funds Transfers (Payments). The Parties recognize that there is a risk of banking fraud
when individuals impersonating a business demand payment under new banking or mailing
instructions. To avoid this risk, both parties must verbally confirm any new or changed bank
transfer or mailing instructions by calling the other party and speaking with the other party's
contact listed in Section 5.9 before mailing or transferring any monies using the new
instructions. Both parties agree that they will not institute mailing or bank transfer instruction
changes and require immediate payment under the new instructions but will instead provide
a ten (10) day grace period to verify any payment instruction changes before any new or
outstanding payments are due using the new instructions.

This Agreement shall be in full force and effect only when it has been approved and executed
by the duly authorized City officials.

FOR THE CITY FOR THE CONTRACTOR
By: By: Jared Pugle
Its: Mayor Its: Director, Global Controller

APPROVED AS TO FORM:

By:
City Attorney qe
ATTEST:
By:
City Clerk

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EXHIBIT A TO AGREEMENT
SCOPE OF SERVICES

Background:

The City of Chandler is contracting with a chemical provider to provide a turnkey non-hazardous
iron salt product and dosing station at our 101/202 diversion structure (see Exhibit E). This
product will be used for odor and corrosion control in the collections system downstream of
the dosing station. The non-hazardous iron salt product needs to have a pH between 4 and 9
and be non-corrosive to the skin.

Service Requirements:

The goal of this project is to control the H2S forming in the 66” truckline that intercepts multiple
lines from different portions of the City. Control of H2S in this pipe is needed to ensure that
the odor control scrubber at that Ocotillo Water Reclamation Facility (OWRF) is not
overwhelmed.

H2S monitoring at a minimum of two locations along the main sewer line will also be required.
One of the two locations must be directly outside the Water Reclamation Facility before it
enters the property in the 66” sewer line. A weekly average of 200ppm of vapor H2S sampled
at the East entrance of the OWRF is the intended target of this chemical addition. Weekly emails
of collected and analyzed data are expected to be delivered to the dosing station manager to
ensure that these targets are being met.

Maintenance of the dosing station will be the responsibility of the selected vendor.
Maintenance of the station includes maintaining the equipment that is provided to store and
dose the chemical. Routine cleanliness of the location is also required of the vendor which
would include removal of any stains that may result from spills or deliveries. All Chemicals,
storage equipment, dosing equipment, supplied piping, transportation equipment, and
personnel are expected to be contained within the walls of the dosing station except for when
entering the station from the entrance gate.

Turnkey services for the service project must include the following:

e  lron salt product procurement and delivery (including unloading and filling of tanks) to the
designated site.

e Procurement and maintenance of both storage tanks and dosing systems

e Ability to monitor and report the daily dosing of chemical.

e Procurement, installation, and maintenance of both storage tanks and dosing system.
System to be owned by the vendor and may be removed at the end or due to termination
of the contract.

e Ability to monitor and report daily dosing of chemicals.

a. Reporting to include a weekly email of daily chemical feed data and H2S monitoring
results to the City appointed dosing station manager

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EXHIBIT B TO AGREEMENT
COMPENSATION AND FEES

Fees can be laid out as cost per equipment, set-up, hauling, and chemical costs. It is preferred to
have the cost be all included in the cost per gallon delivered.

o Chemical Costs - Monthly usage estimate of 200 gpd or more

0}

Equipment Costs - Monthly facility fee per system

o Total Labor Costs - Mobilization fee per system

Item Description UOM Amount
Chemical Costs (SulFeLox product) | Per Gallon S 7.03
Month Facility
Equipment Costs Fee/System S N/A
Labor Costs Lump Sum S N/A

Pricing is comprehensive in nature and includes supply of:

Supply of chemicals necessary for support of the odor control program, specifically SulFeLox
buffered iron solution

USP-7,800-gallon double-walled tank

Duplex pump skid specifically designed for SulFeLox product

Fully integrated Advanced Dosing Control System for 24hr dose profiling

All chemical suction and discharge piping, valves, etc. to the treatment process, including new
fill line at Lone Butte Diversion Structure.

ChemWatch ACS control system for remote monitoring and dosing control of the system
Equipment mobilization, installation, start-up, and maintenance

Initial on-site survey to determine peroxide/sulfide reaction rates and H25 removal efficiency
Project management, applications & process optimization services

Seasonal program optimization and equipment maintenance services

Chemical safety training for site personnel

Inventory and delivery management (ACS controller)

All necessary sampling (liquid and vapor) labor and installation

Weekly program reporting and documentation (USP Vista)

SulFeLox program pricing at $7.03/gal delivered in full truckloads of 44k Ibs.
Volume pricing of $6.35/gal will apply for annual average use rate of >350 GPD.

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INSURANCE
General.

A.

EXHIBIT C TO AGREEMENT
INSURANCE

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.

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.

The insurance requirements set forth below 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 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.

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.

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 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

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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.

Cc. 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 Requirements:
a. The policy shall provide a waiver of subrogation

Dz. Builders’ Risk/Installation Floater Insurance. The Contractor bears all responsibility for
loss to all equipment or Work under construction. Unless waived in writing by the
City the Contractor will purchase and maintain in force Builders’ Risk/Installation
Floater insurance on the entire Work until completed and accepted by the City. This
insurance will be Special Causes of Loss policy form, (minimally including perils of fire,
flood, lightning, explosion, windstorm and hail, smoke, aircraft and vehicles, riot and
civil commotion, theft, vandalism, malicious mischief, and collapse), completed value,
replacement cost policy form equal to the contract price and all subsequent
modifications. The Contractor's Builders’ Risk/Installation Floater insurance must be
primary and not contributory.

1. Builders’ Risk/Installation Floater insurance must cover the entire Work including
reasonable compensation for architects and Contractors’ services and expenses
and other “soft costs” made necessary by an insured loss. Builders’
Risk/Installation Floater insurance must provide coverage from the time any
covered property comes under the Contractor's control and or responsibility, and
continue without interruption during course of construction, renovation and or
installation, including any time during which any project property or equipment is
in transit, off site, or while on site for future use or installation. Insured property
must include, but not be limited to, scaffolding, false work, and temporary
buildings at the site. This insurance must also cover the cost of removing debris,
including demolition as may be legally required by operation of any law,
ordinance, regulation or code.

2. The Contractor must also purchase and maintain Boiler and Machinery insurance
with the same requirements as Builders’ Risk/Installation Floater insurance cited
above if the Work to be performed involves any exposures or insurable property
normally covered under a Boiler and Machinery insurance policy or made

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necessary as required by law or testing requirements in the performance of this
Contract/Agreement. The Contractor will be responsible for any and all
deductibles under these policies and the Contractor waives all rights of recovery
and subrogation against the City under the Contractor's Builders’ Risk/Installation
Floater insurance described herein.

3. Builders’ Risk/Installation Floater Insurance must be maintained until whichever
of the following first occurs: (i) final payment has been made; or, (ii) until no
person or entity, other than the City, has an insurable interest in the property
required to be covered.

a. The Builders’ Risk/Installation Floater insurance must be endorsed so that the
insurance will not be canceled or lapse because of any partial use or
occupancy by the City.

b. The Builders Risk/Installation Floater insurance must include as named
insureds, the City, the Contractor, and all tiers of subcontractors and others
with an insurable interest in the Work who will be named as additional
insureds unless they are able to provide the same level of coverage with the
City and Contractor named as additional insureds. Certificates must contain a
provision that the insurance will not be canceled or materially altered without
at least 30 days advance notice to the City. The City must also be named as a
Loss Payee under the Builders’ Risk/Installation Floater coverage.

c. The Builders Risk/Installation Floater insurance must be written using the
Special Causes of Loss policy form, replacement cost basis.

d. All rights of subrogation under the Builders Risk/Installation Floater insurance
are, by this Contract/Agreement, waived against the City, its officers, officials,

agents and employees.

e. The Contractor is responsible for payment of all deductibles under the
Builders’ Risk/Installation Floater insurance policy.

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.

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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.

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

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.

The Contractor, its successors and or assigns, are required to maintain
Commercial General Liability insurance as specified in this Agreement for a
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.

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.

A.

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.

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.

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

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

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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.

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EXHIBIT D TO AGREEMENT
SPECIAL CONDITIONS

ACCESS TO SECURED FACILITIES

Contract Worker Access Controls, Badge and Key Access Requirements. A Contract Worker shall not
be allowed to begin work in any City facility without: (A) The prior completion and the City's
acceptance of the required background screening; and (B) when required, the Contract Worker's
receipt of a City issued badge. A badge will be issued to a Contract Worker solely for access to the
City facility(s) to which the Contract Worker is assigned. Each Contract Worker who enters a City
facility must use the badge issued to the Contract Worker. Any and all fees associated with security
badging will be assessed in compliance with Chandler City Code 84-22.

Key Access Procedures. If the Contract Worker's services require keyed access to enter a City
facility(s), a separate key issue/return form must be completed and submitted by Contractor for
each key issued.

Stolen or Lost Badges or Keys. Contractor shall report lost or stolen badges or keys to the City
immediately. A new badge application or key issue form shall be completed and submitted along
with payment of the applicable fees prior to issuance of a new badge or key.

Return of Badges or Keys. All badges and keys are the property of the City and must be returned to
the City within one business day of when the Contract Worker's access to a City facility is no longer
required to furnish the services under this Agreement. Contractor shall collect a Contract Worker's
badge and key(s) upon the termination of the Contract Worker's employment; when the Contract
Worker's services are no longer required at the particular City facility(s); or upon termination,
cancellation or expiration of this Agreement. Contractor's default under this Section shall include,
but is not limited to the following: (1) Contract Worker gains access to a City facility(s) without the
proper badge or key; (2) Contract Worker uses a badge or key of another to gain access to a City
facility; (3) Contract Worker commences services under this Agreement without the proper badge,
key or Background Screening; (4) Contract Worker or Contractor submits false information or
negligently submits wrong information to the City to obtain a badge, key or applicable Background
Screening; or (5) Contractor fails to collect and timely return Contract Worker's badge or key upon
termination of Contract Worker's employment, reassignment of Contract Worker to another City
facility or upon the expiration, cancellation or termination of this Agreement. Contractor
acknowledges and agrees that the access control, badge and key requirements in this Section are
necessary to preserve and protect public health, safety and welfare. Accordingly, Contractor agrees
to properly cure any default under this Section within three business days from the date notice of
default is sent by the City. The parties agree that Contractor's failure to properly cure any default
under this Section shall constitute a breach of this Section. In addition to any other remedy available
to the City at law or in equity, Contractor shall be liable for and shall pay to the City the sum of
$1,000.00 for each breach by Contractor of this Section. The parties further agree that the sum fixed
above is reasonable and approximates the actual or anticipated loss to the City at the time and
making of this Agreement in the event that Contractor breaches this Section. Further, the parties
expressly acknowledge and agree to the fixed sum set forth above because of the difficulty of
proving the City's actual damages in the event that Contractor breaches this Section. The parties
further agree that three breaches by Contractor of this Section arising out of any default within a
consecutive period of three months or three breaches by Contractor of this Section arising out of
the same default within a period of 12 consecutive months shall constitute a material breach of this
Agreement by Contractor and the City expressly reserves all of its rights, remedies and interests
under this Agreement, at law and in equity including, but not limited to, termination of this
Agreement.

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