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HomeMy WebLinkAboutC2019-095 - Interwest Safety Supply1 Contract No. 2019-095 COOPERATIVE PURCHASING AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND INTERWEST SAFETY SUPPLY, LLC THIS COOPERATIVE PURCHASING AGREEMENT (this “Agreement”) is entered into as of June 18, 2019, between the Town of Fountain Hills, an Arizona municipal corporation (the “Town”), and Interwest Safety Supply, LLC, a Delaware limited liability company (the “Contractor”). RECITALS A. After a competitive procurement process, the City of Peoria, Arizona (“Peoria”) entered into Contract No. ACON26816, dated June 24, 2016, as amended (collectively, the “Peoria Contract”), for the Contractor to provide street signs and hardware. A copy of the Peoria Contract is attached hereto as Exhibit A and incorporated herein by reference, to the extent not inconsistent with this Agreement. B. The Town is permitted, pursuant to Section 3-3-27 of the Town Code, to make purchases under the Peoria Contract, at its discretion and with the agreement of the awarded Contractor, and the Peoria Contract permits its cooperative use by other public entities, including the Town. C. The Town and the Contractor desire to enter into this Agreement for the purpose of (i) acknowledging their cooperative contractual relationship under the Peoria Contract and this Agreement, (ii) establishing the terms and conditions by which the Contractor may provide the Town with street signs and hardware (the “Materials and Services”), and (iii) setting the maximum aggregate amount to be expended pursuant to this Agreement related to the Materials and Services. AGREEMENT NOW, THEREFORE, in consideration of the foregoing introduction and recitals, which are incorporated herein by reference, the following mutual covenants and conditions, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Town and the Contractor hereby agree as follows: 1. Term of Agreement. This Agreement shall be effective as of the date first set forth above and shall remain in full force and effect until June 23, 2020 (the “Initial Term”), unless terminated as otherwise provided in this Agreement or the Peoria Contract. After the expiration of the Initial Term, this Agreement may be renewed for up to two successive one-year terms (each, a “Renewal Term”) if: (i) it is deemed in the best interests of the Town, subject to availability and appropriation of funds for renewal in each subsequent year, (ii) the term of the Peoria Contract has not expired or has been extended, (iii) at least 30 days prior to the end of the then-current term of this Agreement, the Contractor requests, in writing, to extend this Agreement for an additional one-year term and (iv)the Town approves the additional one-year term in writing(including any price adjustments approved as part of the Peoria Contract), as evidenced by the Town Manager's signature thereon,which approval may be withheld by the Town for any reason. The Contractor's failure to seek a renewal of this Agreement shall cause this Agreement to terminate at the end of the then-current term of this Agreement; provided, however, that the Town may, at its discretion and with the agreement of the Contractor, elect to waive this requirement and renew this Agreement. The Initial Term and any Renewal Term(s) are collectively referred to herein as the "Term." Upon renewal, the terms and conditions of this Agreement shall remain in full force and effect. 2. Purchase of Materials and Services. This is an indefinite quantity and indefinite delivery Agreement for Materials and Services under the terms and conditions of the Peoria Contract. The Town does not guarantee any minimum or maximum number of purchases will be made pursuant to this Agreement. Purchases will only be made when the Town identifies a need and proper authorization and documentation have been approved. For purchase(s) determined by the Town to be appropriate for this Agreement,the Contractor shall provide the specific Materials and Services to the Town in such quantities and configurations agreed upon between the parties, in a written invoice, quote, materials order or other form of written agreement describing the materials to be delivered (each, a "Materials Order"). Each Materials Order shall (i) contain a reference to this Agreement and the Peoria Contract and (ii) be attached hereto as Exhibit B and incorporated herein by reference.A Materials Order submitted without referencing this Agreement and the Peoria Contract will be subject to rejection. Contractor acknowledges and agrees that a Materials Order containing unauthorized exceptions, conditions, limitations, or provisions in conflict with the terms of this Agreement, other than Town's project-specific requirements, is hereby expressly declared void and shall be of no force and effect. 2.1 Inspection; Acceptance. All Materials and Services are subject to final inspection and acceptance by the Town. Materials failing to conform to the requirements of this Agreement and/or the Peoria Contract will be held at Contractor's risk and may be returned to the Contractor. If so returned, all costs are the responsibility of the Contractor. Upon discovery of non- conforming Materials or Services, the Town may elect to do any or all of the following by written notice to the Contractor: (i) waive the non-conformance; (ii) stop the work immediately; or (iii) bring Materials or Services into compliance and withhold the cost of same from any payments due to the Contractor. 2.2 Cancellation. The Town reserves the right to cancel any Materials Order within a reasonable time after issuance. Should a Materials Order be canceled,the Town agrees to reimburse the Contractor, but only for actual and documentable costs incurred by the Contractor due to and after issuance of the Materials Order. The Town will not reimburse the Contractor for any costs incurred after receipt of the Town notice of cancellation, or for lost profits, shipment of product prior to issuance of a Materials Order or for anything not expressly permitted pursuant to this Agreement. 3. Compensation. For the Initial Term, the Town shall pay the Contractor an aggregate amount not to exceed $119,823.17 for the Materials and Services at the unit rates set forth in the Peoria Contract. Thereafter, for the subsequent Renewal Term(s), if any, the Town shall pay the Vendor an annual aggregate amount not to exceed $40,000.00 for the Materials and 2 Services at the unit rates set forth in the Peoria Contract. The maximum aggregate amount for this Agreement, including all Renewal Terms, shall not exceed $199,823.17. 4. Payments.The Town shall pay the Contractor monthly,based upon acceptance and delivery of Materials and/or Services performed and completed to date, and upon submission and approval of invoices. Each invoice shall (i) contain a reference to this Agreement and the Peoria Contract and (ii) document and itemize all work completed to date. The invoice statement shall include a record of materials delivered,time expended, and work performed in sufficient detail to justify payment. Additionally, invoices submitted without referencing this Agreement and the Peoria Contract will be subject to rejection and may be returned. 5. Records and Audit Rights. To ensure that the Contractor and its subcontractors are complying with the warranty under Section 6 below, Contractor's and its subcontractors' books, records, correspondence, accounting procedures and practices, and any other supporting evidence relating to this Agreement, including the papers of any Contractor and i.ts subcontractors' employees who perform any work or services pursuant to this Agreement (all of the foregoing hereinafter referred to as "Records"), shall be open to inspection and subject to audit and/or reproduction during normal working hours by the Town, to the extent necessary to adequately permit evaluation of the Contractor's and its subcontractors' compliance with the Arizona employer sanctions laws referenced in Section 6 below. To the extent necessary for the Town to audit Records as set forth in this Section,Contractor and its subcontractors hereby waive any rights to keep such Records confidential. For the purpose of evaluating or verifying such actual or claimed costs or units expended,the Town shall have access to said Records, even if located at its subcontractors' facilities, from the effective date of this Agreement for the duration of the work and until three years after the date of final payment by the Town to Contractor pursuant to this Agreement. Contractor and its subcontractors shall provide the Town with adequate and appropriate workspace so that the Town can conduct audits in compliance with the provisions of this Section. The Town shall give Contractor or its subcontractors reasonable advance notice of intended audits. Contractor shall require its subcontractors to comply with the provisions of this Section by insertion of the requirements hereof in any subcontract pursuant to this Agreement. 6. E-verify Requirements. To the extent applicable under ARIZ. REV. STAT. § 41- 4401,the Contractor and its subcontractors warrant compliance with all federal immigration laws and regulations that relate to their employees and their compliance with the E-verify requirements under ARIZ. REV. STAT. § 23-214(A). Contractor's or its subcontractors' failure to comply with such warranty shall be deemed a material breach of this Agreement and may result in the termination of this Agreement by the Town. 7. Israel. Contractor certifies that it is not currently engaged in and agrees for the duration of this Agreement that it will not engage in a "boycott," as that term is defined in ARIZ. REV. STAT. § 35-393, of Israel. 8. Conflict of Interest. This Agreement may be canceled by the Town pursuant to ARIZ.REV.STAT. §38-511. 9. Applicable Law;Venue. This Agreement shall be governed by the laws of the State of Arizona and a suit pertaining to this Agreement may be brought only in courts in Maricopa County,Arizona. 3 10. Agreement Subject to Appropriation. The Town is obligated only to pay its obligations set forth in this Agreement as may lawfully be made from funds appropriated and budgeted for that purpose during the Town's then current fiscal year. The Town's obligations under this Agreement are current expenses subject to the "budget law" and the unfettered legislative discretion of the Town concerning budgeted purposes and appropriation of funds. Should the Town elect not to appropriate and budget funds to pay its Agreement obligations, this Agreement shall be deemed terminated at the end of the then-current fiscal year term for which such funds were appropriated and budgeted for such purpose and the Town shall be relieved of any subsequent obligation under this Agreement.The parties agree that the Town has no obligation or duty of good faith to budget or appropriate the payment of the Town's obligations set forth in this Agreement in any budget in any fiscal year other than the fiscal year in which this Agreement is executed and delivered. The Town shall be the sole judge and authority in determining the availability of funds for its obligations under this Agreement. The Town shall keep Contractor informed as to the availability of funds for this Agreement. The obligation of the Town to make any payment pursuant to this Agreement is not a general obligation or indebtedness of the Town. Contractor hereby waives any and all rights to bring any claim against the Town from or relating in any way to the Town's termination of this Agreement pursuant to this section. 11. Conflicting Terms. In the event of any inconsistency, conflict or ambiguity among the terms of this Agreement, the Contractor Proposal, the Peoria Contract, and invoices, the documents shall govern in the order listed herein. Notwithstanding the foregoing, and in conformity with Section 2 above,unauthorized exceptions,conditions, limitations or provisions in conflict with the terms of this Agreement or the Peoria Contract (collectively, the "Unauthorized Conditions"),other than the Town's project-specific requirements,are expressly declared void and shall be of no force and effect. Acceptance by the Town of any work order or invoice containing any such Unauthorized Conditions or failure to demand full compliance with the terms and conditions set forth in this Agreement or under the Peoria Contract shall not alter such terms and conditions or relieve Contractor from, nor be construed or deemed a waiver of, its requirements and obligations in the performance of this Agreement. 12. Rights and Privileges. To the extent provided under the Peoria Contract,the Town shall be afforded all of the rights and privileges afforded to Peoria and shall be the "City" (as defined in the Peoria Contract) for the purposes of the portions of the Peoria Contract that are incorporated herein by reference. 13. Indemnification; Insurance. In addition to and in no way limiting the provisions set forth in Section 12 above, the Town shall be afforded all of the insurance coverage and indemnifications afforded to Peoria to the extent provided under the Peoria Contract, and such insurance coverage and indemnifications shall inure and apply with equal effect to the Town under this Agreement including, but not limited to, the Contractor's obligation to provide the indemnification and insurance. In any event, the Contractor shall indemnify, defend and hold harmless the Town and each council member, officer, employee or agent thereof(the Town and any such person being herein called an "Indemnified Party"), for, from and against any and all losses, claims, damages, liabilities, costs and expenses (including, but not limited to, reasonable attorneys' fees, court costs and the costs of appellate proceedings)to which any such Indemnified Party may become subject, under any theory of liability whatsoever ("Claims"), insofar as such Claims (or actions in respect thereof) relate to, arise out of, or are caused by or based upon the 4 negligent acts, intentional misconduct, errors, mistakes or omissions, in connection with the work or services of the Contractor, its officers, employees, agents, or any tier of subcontractor in the performance of this Agreement. 14. Notices and Requests.Any notice or other communication required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given if (i) delivered to the party at the address set forth below, (ii) deposited in the U.S. Mail,registered or certified, return receipt requested, to the address set forth below or (iii) given to a recognized and reputable overnight delivery service, to the address set forth below: If to the Town: Town of Fountain Hills 16705 East Avenue of the Fountains Fountain Hills,Arizona 85268 Attn: Grady E. Miller, Town Manager With copy to: Pierce Coleman PLLC 4711 E. Falcon Drive, Suite 111 Peoria, Arizona 85215 Attn: Aaron D. Arnson, Town Attorney If to Contractor: Interwest Safety Supply, LLC 1714 West Lincoln Street Phoenix, Arizona 85007 Attn: Kevin DeRuiter or at such other address, and to the attention of such other person or officer, as any party may designate in writing by notice duly given pursuant to this subsection. Notices shall be deemed. received: (i) when delivered to the party, (ii) three business days after being placed in the U.S. Mail, properly addressed, with sufficient postage or (iii) the following business day after being given to a recognized overnight delivery service, with the person giving the notice paying all required charges and instructing the delivery service to deliver on the following business day. If a copy of a notice is also given to a party's counsel or other recipient, the provisions above governing the date on which a notice is deemed to have been received by a party shall mean and refer to the date on which the party, and not its counsel or other recipient to which a copy of the notice may be sent, is deemed to have received the notice. [SIGNATURES APPEAR ON FOLLOWING PAGES] 5 IN WITNESS WHEREOF,the parties hereto have executed this Agreement as of the date and year first set forth above. "Town" TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation c - 1 . I1 Grady E. Mil town Manager ATTEST: Elizabeth . urke, Town C erk APPROVED AS TO FORM: Aaron D. Arnson Town AttorKie y (ACKNOWLEDGEMENT) STATE OF ARIZONA ) ) ss. COUNTY OF MARICOPA ) On 0;44K., , 2019, before me personally appeared Grady E. Miller, the Town Manager of the TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation, whose identity was proven to me on the basis of satisfactory evidence to be the person who he claims to be, and acknowledged that he signed the above document, on behalf of the Town of Fountain Hills. y, r PAUTA L.WOGDVVARD Pa/A �j 04Money Public•Mate dA�one tip 4C+1✓ 4 :.r 1.: MARICOPA COUNTY Commission#550131 Notary Public .. Expires August 18,2022 (Affix notary seal here) [SIGNATURES CONTINUE ON FOLLOWING PAGE] 6 1 , "Contractor" INTERWEST SAFETY SUPPLY, LLC, a DelaWare limited liability ' pany BY: d.Name: i- ,OS Its. 1 (ACKNOWLEDGEMENT) STATE OF Agle ) ,.^ ) ss. COUNTY OF " LOVIL-) On a 2019, before me personally appeared ,� , the of INTERWEST SAFETY SUPPLY, LLC, a Detawa e limited ltab�lit�' company;whose identity was proven to me on the basis of satisfactory evidence to be the person who he claims to be,and acknowledged that he signed the above document,on behalf of Interwest Safety Supply, LLC. Notary Pub tc (Affix notary seal here) ", " Q� ''� '1 a tio...0) 4847-5181-1736,v;1 4i'„a ' . ;Q"q`' ��,00 � ` 4"'1# t. egot ' pA , 7 EXHIBIT A TO COOPERATIVE PURCHASING AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND INTERWEST SAFETY SUPPLY, LLC, [Peoria Contract] See following pages. i CONTRACT AMENDMENT Materials Management �'T Qromen �„� 9875 N.85thcure Ave. 2t nd FI. * —.Q. * Solicitation No: P16-0065 Page 1 of 1 Peoria,AZ 85345 �� � � Telephone: (623)773-7115 �T' Description: Street Signs and Hardware Fax: (623)773-7118 tOlt • Amendment No: Eight(8) Date: 03/06/19 Buyer: Terry Andersen i In accordance with the Contract Special Terms and Conditions, Contract Extension, the above referenced contract shall expire on 6/23/19 and is hereby extended. EXTENSION#3 The New Contract Term is: 06/24/19 to 06/23/20 . *Price increase approved by department. See attached Price Sheet Summary (revised 4/2019)which replacesprevious P price sheets . All contract terms and conditions remain the same. Con . tor re• kn owl:_••s re •Ipt and agreement. A signed copy shall be tiled with the City of Peoria,Materials i Maf.ge - -i• f ly, � Kevin DeRuiter, L7 Regional Manager Interwest Safety Supply, LLC • signature Date Typed Name and Title Company Name • . 1714 W Lincoln Street Phoenix AZ 85007 Address City State Zip Attested y: A ' �l lLkai_l Ate'? 'rL'i�-'i rk-: �t r�f R onda Geriminsky, Clerk y City Director. Kevin Burke, Public Works Director 4e/,a4-11- 3',citt3w. CC Number Department Rep: Adam Stapleton, Street Maintenance Supervisor A pr ed as to Form: �j i Cillik ACON26816H V ssa P.Hickman,city Attorney * . � ®� tim / . ; Contract Number r r° i% � The above referenced Contract Amendment Is hereby t.` Executed: Ci pr (93-')I I? , at Peoria,Arizona ekt-Ai...fLie, IV Dan Zenko,Materials anager U (Rev 0S/07/18)CF . Terry Anderson CPPB Contract OfficerW4' City of Peoria Materials Management s II I Erwurra 5/12/2019 r Id11/111111114111111111111/ 0(‘ SUPQ\- Terry, WWW.iwsafety.com Please let this letter serve as notice regarding price list increase sent on 4/23/2019. Interwest Safety will put increase into effect at start date of 7/1/2019. With the continued rising prices of raw materials,we use in our production and the uncertainty of stable pricing within our market we felt it necessary to increase prices for the upcoming term of the contract. For any suggestions or concerns regarding this increase or our services do not hesitate to call me. I would appreciate any and all inquiries. Interwest Safety has always valued our relationship with the City of Peoria.We will continue always to improve and provide the very best in customer service. We are proud to have assisted on so many Peoria projects. Sincerely, Rick Belanger Account Manager -0 -a> v > > 0 0 E E I?. V. 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