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City of Mesa New Bid Opportunity: RECYCLING PROCESSING AND MARKETING SERVICES

City of Mesa New Bid Opportunity: RECYCLING PROCESSING AND MARKETING SERVICES

Procurement Request

NOTICE OF SOLICITATION

 

Publish Date: August 1, 2022                                                       

SOLICITATION # 2023001


REQUEST FOR PROPOSALS FOR:  RECYCLING PROCESSING AND MARKETING SERVICES

 

PROPOSAL DUE DATE AND TIME:  SEPTEMBER 1, 2022 – 3:00 P.M. LOCAL ARIZONA TIME

Notice is hereby given that sealed proposals will be received by the Purchasing Division, City of Mesa (“City”) until the date and time cited above. Responses received by the correct date and time will be opened publicly and read aloud by the Purchasing Division’s Procurement Administrator (or designated representative).

To join the response reading at 4:00 P.M. local Arizona time on the due date via Microsoft Teams, please: Click to Join Response Opening

Meeting ID: 298 588 911 793; Passcode: nE2t5R

Teleconference Number: 480-535-7460; Conference ID: 816 104 440#

 

MANDATORY PRE-PROPOSAL CONFERENCE / SITE VISIT:

Date and Time:  August 11, 2022 at 9:00 A.M. local Arizona time

Location:  Microsoft Teams Meeting 

To join the mandatory pre-proposal conference via Microsoft Teams, please: Click to Join Pre-Proposal Conference

Meeting ID: 252 802 943 569; Passcode: VPVEgZ

Teleconference Number: 480-535-7460; Conference ID: 500 040 455#


The pre-proposal conference provides interested parties an opportunity to discuss the municipal parties and ask questions. 


The City anticipates the following schedule will apply:

Issue Request for Proposals

August 1, 2022

Mandatory Pre-Proposal Conference for Interested Firms

August 11, 2022 at 9:00 a.m. local Arizona time

Questions due from Firms

August 15, 2022 by 1:00 p.m. local Arizona time

City of Mesa response to questions via addendum

August 18, 2022

Proposal Due Date

September 1, 2022 by 3:00 p.m. local Arizona time


Please read the entire Solicitation package and submit the bid in accordance with the instructions.  This document (less this invitation and the instructions) and any required response documents, attachments, and submissions will constitute the bid.

Responses must be in the actual possession of the Purchasing Division Office submitted electronically, on or before the exact date and time indicated above. Late submittals shall not be considered under any circumstances.

Questions concerning this Solicitation should be submitted in writing through the City of Mesa’s Purchasing Website Vendor Self Service portal at https://vendor.mesaaz.gov/ or by email to the following Purchasing contacts or their designees:


Technical Questions:                                                   General or Process Questions:

Evan Karl, NIGP-CPP, CPPB                                        Ashia Villegas

Procurement Officer I                                                    Procurement Specialist

Phone: 480-644-2356                                                     Phone: 480-644-2545

Evan.Karl@MesaAZ.gov                                                Ashia.Villegas@MesaAZ.gov

 

 

NOTE:  THE CITY OF MESA PUBLISHES ITS SOLICITATIONS, ATTACHMENTS, AND ADDENDA ONLINE AND THEY ARE AVAILABLE FOR VIEWING AND/OR DOWNLOADING AT THE FOLLOWING INTERNET ADDRESS: https://vendor.mesaaz.gov/

Current contracts and related information are available for viewing and/or downloading at: http://apps.mesaaz.gov/purchasingcontracts/Search

All vendors wishing to conduct business with the City are required to register and maintain all information used for the notification of Solicitation opportunities and issuance of payment in the Vendor Self Service (VSS) system. To register and view additional vendor information, go to https://vendor.mesaaz.gov/

 
 
 

 

 

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NOTICE...................................................................................................................... 1

TABLE OF CONTENTS.............................................................................................. 3

SECTIONS:

INSTRUCTIONS............................................................................................. 4

SCOPE OF WORK......................................................................................... 14

ATTACHMENTS:

ATTACHMENT A – PRICING.......................................................................... 28

ATTACHMENT B – REQUIRED RESPONSE FORMS...................................... 29

ATTACHMENT C – ACCEPTABLE MATERIALS FORM................................... 30

ATTACHMENT D – SUPPLIER SUSTAINABILITY QUESTIONNAIRE............... 31

EXHIBITS:

EXHIBIT 1 – CITY OF MESA DRAFT AGREEMENT.................................................... 32

EXHIBIT 2 – TOWN OF GILBERT DRAFT AGREEMENT............................................. 51

 
 
 

GENERAL:  Please read the entire Solicitation package and all attachments before submitting a Response.  Responses must be in accordance with the provisions, specifications, and instructions set forth herein and will be accepted until the date and time the Response is due.


VENDOR QUESTIONS All questions regarding the contents of this Solicitation, and Solicitation process (including requests for ADA accommodations), are due August 15, 2022 by 1:00 p.m. local Arizona time. Questions must be directed solely to the Procurement Officer/Supervisor and/or the Purchasing Specialist.  Questions should be submitted in writing through the City of Mesa’s Purchasing Website Vendor Self Service portal at https://vendor.mesaaz.gov/ or by email.  Questions received less than seven (7) calendar days before the due date and time for Responses may be answered at the discretion of the City.


INSTRUCTIONS FOR PREPARING AND SUBMITTING RESPONSE:  Respondents must submit their responses electronically.  Any Respondent needing assistance or guidance using the online Vendor Self Service (VSS) portal may contact the Procurement Officer/Supervisor. Do not wait for the last day to submit a response. Start early so we can fix any issues before trying to submit a response. ALL RESPONDENTS ARE ENCOURAGED TO REVIEW INSTRUCTIONS FOR HOW TO RESPOND TO A SOLICITATION available under Download Vendor Forms in the online VSS portal. Respondents shall provide their Responses in accordance with the following form and content requirements:


Responses shall be submitted through the City of Mesa’s Purchasing Website at https://vendor.mesaaz.gov under the appropriate Solicitation opportunity.  Submissions submitted elsewhere or under the wrong Solicitation will not be considered.

Responses must be signed by an authorized representative of Respondent with the authority to bind Respondent to make such commitments to the City set forth in the Response. 

Responses should be specific to the Solicitation and present details on all requested information in a concise manner. 


RESPONSE FORMAT:


Table of Contents. Identify contents by tab and page number.

TAB 1 - Letter of Transmittal.  A brief letter of transmittal should be submitted that includes the following information:

  • The Respondent’s understanding of the work to be performed.
  • A positive commitment to perform the service within the time period specified.
  • The names of key representative(s) who will be the main contacts for the City regarding this Solicitation.

 

TAB 2 - Qualifications. (Abilities, Experience, and Expertise)  The following information should be included:

  • Statement of Qualifications (limited to six (6) pages): Provide a concise description of the Respondent’s general qualifications (i.e. abilities, experience, and expertise) with respect to the scope of work including information demonstrating the Respondent has appropriate staffing, necessary resources, and a history of demonstrated competence.
  • Available Staffing (limited to four (4) pages)
  • Provide the location and size of the local administrative office and the number of staff (designated by professional category) permanently assigned to the local office and available for support of this contract. An organizational chart with the required information would suffice.
  • Provide the number of staff (designated by professional category) assigned to the operations of each Receiving Facility available for this contract.



  • Contract Management & Key Personnel  
  • Identify the key personnel listed below (limited to one (1) page). Respondent must notify Municipal Parties of any changes to the key personnel listed below. 
  • Contract Manager (main point of contact for contractual questions, issues, concerns, or resolutions, and is authorized to make decisions and act on the Respondent’s behalf).
  • On-site Operations Manager (primary on-site contact for operational concerns such as access issues, equipment issues, immediate operational matters, etc.).
  • Administrative Manager (primary contact for invoicing, scale house reporting, and other administrative concerns, etc.).
  • Other Key Personnel expected to have regular contact with the Municipal Parties (if applicable).
  • Provide a summary of key personnel’s experience (Limited to two (2) pages for each key personnel) pertaining to the scope of work. The following information must be included (Resumes may also be attached to this section):
  • Job assignment,
  • General qualifications,
  • Any specific project experience relating to the scope of work, and,
  • Current workload.
  • Regulatory Compliance History:  Provide a detailed description of all violations, notices of opportunity to correct, and other regulatory actions that the Respondent has received from activities related to this scope of work from any regulatory body during the three (3) years preceding the publish date of this document.  Failure to report any such violations or enforcement actions may result in disqualification.
  • References: Provide a minimum of three (3) references, preferably from other public entities within the State of Arizona, for whom you have provided similar services. Include the name of the entity, contact person’s names, phone numbers, e-mail addresses, type of service provided, and dates the services were provided.
  • Subcontractor(s): If applicable, identify and list any subcontractor(s) that will participate in carrying out the obligations of any resulting contract, including their abilities, experience, and expertise.
  •  

TAB 3 - Program Description and Method of Approach.  Clearly define the services/materials offered and Respondent’s method of approach including, but not limited, to the following criteria:

  • Identify and briefly describe each proposed facility that would be used to receive and/or process materials, including residue, under this Request for Proposal (“Receiving Facility”) and its anticipated lifespan, planned end dates of any leases, or any timeline to end business at the location. If one or more proposed Receiving Facility is not fully constructed and operational, provide a description of timeline, key milestones, and other requirements to acquire, construct, and/or renovate the applicable Receiving Facility(s).
  • Provide an aerial map of each proposed Receiving Facility that includes the following information:
  • Name of Facility
  • Physical Address of Facility
  • Identification of entrance and exit
  • Identification of scales and/or scale house
  • Flow of traffic for Municipal Parties’ vehicle deliveries including directional arrows
  • Identification of any queuing areas
  • Identification of any potential hazards.
  • Describe the recyclable materials processing equipment that will be used at each proposed Receiving Facility if applicable and its effectiveness at sorting incoming material, reducing residuals, and increasing the quantity/quality of marketable products. Include the following information:
  • Type and age of equipment.
  • Processing Abilities (i.e. daily intake capacities).
  • Processing Efficiency and Material Recovery Rate (how effective is the system at capturing recyclable materials to be sorted and/or recovered, including at what speed).
  • Frequency of maintenance to be performed including any replacement plans.
  • Expected downtime for maintenance and repairs on an annual, quarterly, and monthly basis.
  • Describe the proposed marketing plan for processed materials. Include the following information:
  • Detailed description of the strategy for marketing materials for recycling and reuse.
  • Proposed end users and/or buyers of the materials including any Arizona specific markets that will be used.
  • Explanation of how the Respondent will obtain the highest market value and/or beneficial reuse of the materials.
  • How the Respondent will ensure processed materials are not marketed to end markets that either landfill, permanently store, or otherwise similarly dispose of the processed materials.
  • A complete description of the protocol in the event of a lack of demand for recyclable material.
  • Describe how the Respondent will maintain adequate levels of trained staff during all Receiving Times.
  • Briefly describe any contingency plans in place for interruptions to normal business activities and/or emergency situations such as power outages, fires, flooding events, hazardous materials exposure, or supply chain issues.
  • Provide information on any outreach and educational activities performed by the Respondent to the public such as tour availability and/or marketing campaigns.
  • Provide a written explanation detailing Respondent’s proposed pricing structure which shall include all pricing factors (i.e., applicable fees, method of calculating and providing revenue share, how non-acceptable materials will be addressed, allowable residue percentage, and explanation of how processed materials values will be calculated such as actual sales or commodity market value).
  • If revenue sharing is applicable to the pricing structure, provide the average sale price by month for each of the commodity items that Respondent lists within the Acceptable Materials form (Attachment C) for July 1, 2021, through June 30, 2022.
  • Completed Acceptable Materials Form in Microsoft Excel Format (Attachment C).

 

TAB 4 - Pricing Forms.  The cost portion of the Response should include the following criteria:   

  • Completed Processing Fee Form in Microsoft Excel Format (Attachment A).
  • Completed Scenario 1 (High Market) worksheet AND an example monthly invoice modeling all charges (using Municipal Parties’ provided assumptions) (Attachment A)
  • Completed Scenario 2 (Low Market) worksheet AND an example monthly invoice modeling all charges (using Municipal Parties’ provided assumptions) (Attachment A)

 

TAB 5 - Other Forms.   The following forms should be completed and signed:

  • Vendor Information form
  • Exceptions & Confidential Information form
  • General Questionnaire form
  • Lawful Presence Affidavit
  • Respondent Certification form (Offer and Acceptance)
  • W-9 Form. All responses should include a fully completed, current W-9 form. Failure to include the W-9 will not disqualify your response, however, the W-9 must be submitted to the City before the execution of any contract pursuant to this Solicitation. (http://www.irs.gov/pub/irs-pdf/fw9.pdf



RESPONSE CHECKLIST:  This checklist is provided for your convenience.  It is not necessary to return a copy with your Response. Only submit the requested forms and any other requested or descriptive literature. 


  •   Response will be sent in time to be received by City before response due date and time.

  Processing Fee Form completed, math double-checked, with two (2) example invoices completed, and included (Attachment A)

  Required Response Forms completed and included (Attachment B)

        Acceptable Materials Form completed and included (Attachment C)

        Supplier Sustainability Questionnaire form completed and included (Attachment D)

  W-9 Request for Taxpayer Identification Number and Certification form completed and included (http://www.irs.gov/pub/irs-pdf/fw9.pdf)  


ADDENDA:  Any changes to the Solicitation document will be in the form of an addendum.  Addenda are posted on the City website.  Contractors are cautioned to check the Purchasing Website or the Self-Service portal for addenda before submitting their Response.  The Municipal Parties will not be held responsible if a vendor fails to receive any addenda issued.  The Municipal Parties shall not be responsible for any oral changes to these specifications made by any employees or officer of the Municipal Parties and Contractors are cautioned not to rely on any such changes.  Failure to acknowledge receipt of an addendum may result in disqualification of a Response.

 

RESPONSE OPENING: The Municipal Parties will open all Responses properly and timely submitted and will record the names and other information specified by law and rule.  The Response Opening will be conducted at 4:00 P.M. local Arizona time following the final SOLICITATION DUE DATE AND TIME via Microsoft Teams. No responsibility will attach to the City of Mesa, its employees, or agents for the premature opening of a Response.  All Responses become the property of the Municipal Parties and will not be returned.  Results, as read at the public opening, will be posted on the City website.  Responses will be available to the public in accordance with the Municipal Parties Procurement Rules. 


LATE RESPONSES: The Respondent assumes responsibility for having the Response submitted on time.  All Responses received after the Response Due date and time shall not be considered and will be unopened.  The Respondent assumes the risk of any delay caused by not being able to access the system. Respondents must allow adequate time to accommodate all registration and submission requirements.  It shall not be sufficient to show that Respondent attempted to submit a response before the due date and time as the Response must be received by the City.  All times are Mesa, Arizona local times.  Respondents agree to accept the time stamp in the Vendor Self Service portal as the official time. Any Respondent needing assistance or guidance using the online system may contact the Procurement Officer/Supervisor. Do not wait for the last day to submit a response. Start early so we can fix any issues before trying to submit a response. ALL RESPONDENTS ARE ENCOURAGED TO REVIEW INSTRUCTIONS FOR HOW TO RESPOND TO A SOLICITATION available under Download Vendor Forms in the online VSS portal.

 

RESPONSE FIRM TIME: Responses shall remain firm and unaltered after opening for 180 Days unless the time is extended or amended as agreed upon by Respondent and the City.  Examples of where an extension or amendment may be necessary include but are not limited to: (i) contract negotiations with selected Respondent; (ii) submission of a Best and Final Offer by Respondent; (iii) Municipal Parties needing additional time to review responses. The Municipal Parties may accept the Response, subject to successful contract negotiations, at any time during this period.

 

LOBBYING PROHIBITION:  Any communication regarding this Solicitation for the purpose of influencing the process or the award, between any person or affiliates seeking an award from this Solicitation and the Municipal Parties including, but not limited to, Municipal Parties’ Council, City employees, and consultants hired to assist the Municipal Parties in the Solicitation, is prohibited.

This prohibition is imposed from the time of the first public notice of the Solicitation until the Municipal Parties cancel the Solicitation, reject all Responses, award a contract, or otherwise takes action which ends the Solicitation process.  This section shall not prohibit public comment at any Municipal Parties Council meeting, study session, or Municipal Parties Council committee meeting.

This prohibition shall not apply to Respondent-initiated communication with the contact(s) identified in the Solicitation or Municipal Parties-initiated communications for the purposes of conducting the procurement including, but not limited to, vendor conferences, clarification of Responses, presentations if provided pursuant to the Solicitation, requests for Best and Final Responses (as set forth in the Municipal Parties Procurement Rules), contract negotiations, protest/appeal resolution, or surveying non-responsive vendors.

Violations of this provision shall be reported to the Purchasing Administrator.  Persons violating this prohibition may be subject to a warning letter or rejection of their Response depending on the nature of the violation.

 

LAWFUL PRESENCE IN THE UNITED STATES:  Arizona Revised Statutes § 1-501 and § 1-502 require all persons who will be awarded a contract (a Public Benefit as defined in 8 USC Section 1621) must demonstrate they are lawfully present in the United States.  A person under the statute is defined as a natural person and therefore excludes Limited Liability Companies, Corporations, Partnerships, or other similar types of business entities as indicated on a W-9 form.

Individuals (natural persons) or Sole Proprietorships must complete the affidavit in the “Required Response Forms” section of this Solicitation.  Respondents that fail to provide a completed affidavit and fail to provide the necessary documentation may be deemed non-responsive.


COMMENCEMENT OF WORK:  If a Respondent begins any billable work before the Municipal Parties’ final approval and execution of the contract, Respondent does so at its own risk.


RESPONSIBILITY TO READ AND UNDERSTAND:  Failure to read, examine and understand the Solicitation and any of its addenda will not excuse any failure to comply with the requirements of the Solicitation or any resulting contract, nor shall such failure be a basis for claiming additional compensation.  The Municipal Parties are not responsible for and will not pay any costs associated with the preparation and submission of a Response.  Respondents are cautioned to verify their Responses before submission, as amendments to or withdrawal of Responses submitted after the time specified for the opening of Responses may not be considered.  The Municipal Parties will not be responsible for any Respondent errors or omissions.

 

FORM AND CONTENT OF RESPONSES:  Responses must be submitted online through the City of Mesa’s Purchasing Website Vendor Self Service portal at https://vendor.mesaaz.gov under the appropriate Solicitation opportunity.  Physical submissions, e-mail, or fax submissions will not be accepted unless explicitly allowed by the City of Mesa Purchasing Division.  Unless otherwise instructed or allowed, Responses shall be submitted on the forms provided.  Responses, including modifications, must be submitted electronically and signed by an authorized representative of the Respondent.  Please line through and initial rather than erase changes. Any modifications to the Solicitation must be identified in the “Exceptions” section of the required response forms. The Municipal Parties do not encourage exceptions. The Municipal Parties is not required to grant exceptions and depending on the exception, the Municipal Parties may reject the Response as non-responsive. The Municipal Parties reserve the right at their sole discretion, to negotiate exceptions with a Respondent. If the Response is not properly signed or if any changes are not initialed, it may be considered non-responsive. In the event of a disparity between the unit price and the extended price, the unit price shall prevail unless obviously in error, as determined by the Municipal Parties.  The Response must provide all information requested and must address all points set forth in the Solicitation. 

 

SPECIFICATIONS:  Technical specifications define the minimum acceptable standard.  When the specification calls for “Brand Name or Equal,” the brand name product is acceptable.  The use of a brand name is for the purpose of describing the standard of quality, performance, and characteristics desired and are not intended to limit or restrict competition. If a Respondent wishes to provide a material or service that is not the brand name, the equivalent material or service must meet the standard of quality of the brand name product, which is determined at the Municipal Parties’ sole discretion.  Equivalent products will be considered upon showing the other product meets stated specifications and is equivalent to the brand-name product in terms of quality, performance, and desired characteristics. Products that are substantially equivalent to those brands designated will qualify for consideration.

Minor differences that do not affect the suitability of the supply or service for the City’s needs may be accepted.  Burden of proof that the product meets the minimum standards or is equal to the brand name product is on the Respondent.  The Municipal Parties reserves the right to reject Responses that the Municipal Parties deems unacceptable for any reason.

 

MODIFICATION/WITHDRAWAL OF RESPONSE:  Written requests to modify or withdraw a Response received by the Municipal Parties before the scheduled opening time for Responses will be accepted and will be corrected after the Response due date and time.  No oral requests will be allowed.  Requests must be addressed and labeled in the same manner as the Response and marked as a MODIFICATION or WITHDRAWAL of the Response.  Requests for withdrawal after the Response Due date and time will only be granted upon proof of undue hardship and may result in the forfeiture of any Response security.  Any withdrawal after the Response due date and time shall be allowed solely at the Municipal Parties’ discretion.

 

DEBARMENT DISCLOSURE:  If the Respondent has been debarred, suspended, or otherwise lawfully precluded from participating in any public procurement activity, including being disapproved as a subcontractor with any federal, state, or local government or agency, or if any such preclusion from participation from any public procurement activity is currently pending, the Respondent shall include a letter with its Response identifying the name and address of the governmental unit, the effective date of the suspension or debarment, the duration of the suspension or debarment, and the relevant circumstances relating to the suspension or debarment. If suspension or debarment is currently pending, a detailed description of all relevant circumstances must be provided by the Respondent, including the details enumerated above.  A Response from a Respondent who is currently debarred, suspended, or otherwise lawfully prohibited from any public procurement activity may be rejected.  Failure of a Respondent to disclose a debarment or suspension in accordance with this Section may result in the Response being disqualified for an award of the Solicitation.

 

RESERVATIONS:  The Municipal Parties reserve the right to reject any or all Responses or any part thereof; to re-issue the Solicitation; to reject non-responsive or non-responsible Responses; to reject unbalanced Responses; to reject Responses where the terms, prices, or awards are conditioned upon another event; to reject individual Responses for failure to meet any requirement; to award by item, part or portion of an item, group of items, or total; to make multiple awards; to waive minor irregularities, defects, omissions, informalities, technicalities or form errors in any Response; to conduct exclusive or concurrent negotiations of any terms, conditions, or exceptions taken by a Respondent or the terms of any agreement/document a Respondent would require the Municipal Parties to sign should Respondent be awarded a contract; and to reject Responses that are outside the Municipal Parties’ budgeted amount for the materials or services that are the subject of the Solicitation. The Municipal Parties may seek clarification of the Response from Respondent at any time, and failure to respond is cause for rejection.  Submission of a Response confers no right to an award or a subsequent contract.  The City of Mesa is charged by its Charter to make an award that is in the best interest of the City. The Town of Gilbert is also charged by its Town Code to make an award that is in the best interest of the Town. All decisions on compliance, evaluation, terms, and conditions shall be made solely at the Municipal Parties’ discretion and made to favor the Municipal Parties.  No binding contract will exist between the Respondent and a Municipal Party until the Municipal Party executes a written contract or purchase order.

 

EXCEPTIONS TO A SOLICITATION:  Changes to the Solicitation document requested by a Respondent may not be acknowledged or accepted by the Municipal Parties.  Award or execution of a contract does not constitute acceptance of a changed term, condition, or specification in the Solicitation unless specifically acknowledged and agreed to by the applicable Municipal Party. The copy of the Solicitation, including all addenda, maintained and published by the Municipal Parties shall be the official Solicitation document.  Any exception to the Solicitation must be set forth in the “Exceptions” portion of the Response; any exceptions not indicated in the “Exceptions” portion of the Response will be deemed rejected by the Municipal Parties, void and of no contractual significance. The Municipal Parties reserve the right to: (i) reject any or all exceptions requested by a Respondent; (ii), determine a proposal non-responsive due to the exception(s) made by Respondent; (iii) enter into negotiations with a Respondent regarding any of the Respondent’s exceptions, or (iv) accept any or all of a Respondent’s exceptions outright.


COPYING OF RESPONSES:  The Respondent hereby grants the Municipal Parties permission to copy all parts of its Response including, without limitation, any documents and/or materials copyrighted by the Respondent.  The Municipal Parties’ right to copy shall be for internal use in evaluating the Response.


CONTRACTOR ETHICS:  Contractors doing business with the Municipal Parties shall adhere to the City of Mesa’s Procurement Ethics Standards, Article 7 of the Procurement Rules. It is the policy of the Municipal Parties to promote courtesy, fairness, impartiality, integrity, service, professionalism, economy, and government by law in the Procurement process. The responsibility for implementing this policy rests with each individual who participates in the Procurement process, including Respondents and Contractors.  The failure of a Respondent or Contractor to meet the ethical standards may result in the disqualification of an award under the Solicitation or the termination of a contract with the Municipal Parties.

To achieve the purpose of this Section, it is essential Respondents and Contractors doing business with the Municipal Parties observe the ethical standards prescribed herein and in the applicable City or Town Charter, Code Procurement Rules, and City of Mesa Management Policy 200 an the Town of Gilbert’s Codes. It shall be a breach of ethical standards to:

Exert any effort to influence any Municipal Party official, employee, or agent to breach the standards of ethical conduct.

Intentionally invoice any amount greater than provided in a contract or to invoice for materials or services not provided.

Intentionally offer or provide sub-standard materials or services or intentionally not comply with any term, condition, specification, or other requirements of a Municipal Party’s contract.


GIFTS:  The Municipal Parties will accept no gifts, gratuities, or advertising products from Respondents or prospective Respondents and affiliates.  The Municipal Parties may request product samples from Respondents solely for the purpose of product evaluation.

 

EVALUATION PROCESS:  Responses will be reviewed by an evaluation committee comprised of Municipal Parties’ employees and/or agents authorized by the Municipal Parties to participate in the evaluation. The evaluation committee may utilize multiple rounds of review to determine which Respondent is most advantageous for the Municipal Parties to award; Respondents’ scores may be adjusted throughout the evaluation process/rounds. The Municipal Parties reserve the right to consider all information relevant to determining an award in the best interest of the Municipal Parties, including Respondents’ performance under prior contracts. The evaluation process may include but is not limited to a review of proposal Responses, interviews, presentations, site visits, product/service demonstrations, Best and Final Offers, requests for additional information, and requests for clarification. Municipal Parties’ staff may initiate discussions with Respondents for clarification purposes; however, a request for clarification is not an opportunity for a Respondent to change the Response. A request for clarification and/or additional information from a Respondent does not guarantee clarification and/or additional information will be requested from any other Respondents. Respondents shall not initiate discussions with any Municipal Party employee, agent, or official as set forth in the Lobbying section of these instructions including, but not limited to, members of the evaluation committee. The Municipal Parties are not required to award the same Respondent(s) and may award based on the options and services most favorable to their respective communities.

 

 

PRESENTATIONS/INTERVIEWS:  A Respondent must provide a formal presentation/interview upon request by Municipal Parties.

 

SHORT-LISTING:  The Municipal Parties, at their sole discretion, may create a shortlist of the highest scored Responses based on a preliminary evaluation of the Responses against the evaluation criteria.  Only those short-listed Respondents will be invited to give presentations/interviews.  Upon conclusion of any presentations/interviews, the Municipal Parties will finalize the scoring against the evaluation criteria.

 

BEST AND FINAL OFFERS:  The Municipal Parties may request Best and Final Offers if the Municipal Parties deem necessary and the Municipal Parties will determine the scope and subject of any Best and Final request.  Respondents should not expect the Municipal Parties will always ask for Best and Final Offers.  Therefore, all Respondents must submit their best offer based on the specifications, terms, and conditions in the Solicitation.

 

CRITERIA FOR EVALUATION AND AWARD: 


    • The criteria that will be evaluated and their relative weights are:
  • Evaluation Criteria

    Points

    Firm’s Qualifications & Experience

    150

    Firm’s Proposed Solution / Method of Approach

    400

    Firm’s Proposed Pricing

    400

    Acceptance of Terms & Conditions

    50


    The equation below will be used to evaluate and score pricing based on the average of both invoice totals for each scenario:


    (Proposal Evaluated – Highest Cost Proposal)

    X

    Price Points Possible = Pricing Score

    (Best Cost Proposal – Highest Cost Proposal)


    • If less than three (3) Responses to a Solicitation are deemed responsive by the Municipal Parties, at the Municipal Parties’ sole discretion, the Responses may be evaluated using simple comparative analysis instead of any announced method of evaluation, subject to meeting administrative and responsibility requirements.
    • Each Response will be evaluated based upon responsiveness and responsibility criteria.  A failure to meet responsiveness or responsibility criteria will render a Respondent ineligible for the award of a contract under the Solicitation.
    • Responsiveness.  The Municipal Parties will determine whether the Response complies with the instructions for submitting a Response set forth in the Solicitation (i.e. the completeness of the Response which encompasses the inclusion of all required attachments and submissions).  Responsiveness will also be examined as it pertains to items set forth in this Solicitation that state a Respondent may be deemed non-responsive based upon the content of their Response. The Municipal Parties will reject any Responses that are submitted late.  Failure to meet any requirements in the Solicitation may result in rejection of a Response as non-responsive. 
    • Responsibility.  The Municipal Parties will determine whether a Respondent is one with whom the Municipal Parties should do business.  Factors the Municipal Parties may evaluate to determine responsibility include, but are not limited to: an excessively high or low priced Response; past performance under any agreement with the Municipal Parties; references from any source including, but not limited to, those found outside the references listed in the Response and Municipal Parties’ employees, agents or officials who have experience with the Respondent; compliance with applicable laws; Respondent’s record of performance and integrity (e.g. has the Respondent been delinquent or unfaithful to any contract with the Municipal Parties, whether the Respondent is qualified legally to contract with the Municipal Parties, financial stability and the perceived ability to perform completely as specified).  A Respondent must at all times have financial resources sufficient, in the opinion of the Municipal Parties, to ensure the performance of the contract and must provide proof upon request.  Municipal Parties staff may also use Dun & Bradstreet or any generally available industry information to evaluate the Respondent.  The Municipal Parties reserve the right to inspect and review Respondent’s facilities, equipment, and personnel and those of any identified subcontractors. The Municipal Parties will determine whether any failure to supply information or the quality
    • Respondents who have a Transaction Privilege Tax (“TPT”) license for a Municipal Party and who, if awarded a contract, would charge the Municipal Parties’ TPT to be paid to a Municipal Party, will have the amount of the TPT removed from the taxable item(s) from the price set forth in the Response for the purpose of award evaluation.  The awarded Respondent shall however charge the full amount of tax on their invoice(s).
  • This consideration does not apply to:


    Construction procurements or any other procurement done using Arizona Revised Statutes Title 34 processes.

    Purchases using federal or other funds where the agreement that provided the funds precludes any local consideration or preference.


    COST JUSTIFICATION:  In the event, that only one Response to the Solicitation is received, the Municipal Parties may require the Respondent to submit a cost offer in sufficient detail for the Municipal Parties to perform a cost/price analysis to determine if the Response price is fair and reasonable.


    CONTRACT NEGOTIATIONS AND ACCEPTANCE:  Respondent must be prepared for the Municipal Parties to accept the Response as submitted.  If Respondent fails to sign all documents necessary to successfully execute the final contract within a reasonable time as specified, or negotiations do not result in an acceptable agreement, the Municipal Parties may reject the Response or revoke the award and may begin negotiations with another Respondent.  Final contract terms must be approved or signed by the appropriately authorized Municipal Parties’ official(s).  No binding contract will exist between the Respondent and the Municipal Parties until the Municipal Parties execute a written contract or purchase order.


    NOTICE OF INTENT TO AWARD:  Notices of the Municipal Parties intent to award a contract are posted to the City of Mesa’s Purchasing Division’s website before 6:00 P.M. local Arizona time at least seven (7) calendar days before award.

    The Town of Gilbert will post an Award letter to the Town’s website located at www.gilbertaz.gov/rfp at least seven (7) calendar days after a selection has been determined.

    • It is the Respondent’s responsibility to check the City of Mesa’s Vendor Self Service portal at https://vendor.mesaaz.gov/ to view Purchasing’s Intent to Award notices.  This may be the only notification you will receive regarding the City’s Intent to Award a contract related to this Solicitation.

  • PROTESTS AND APPEALS:  If a Respondent or any person believes there is a mistake, impropriety, or defect in the Solicitation, believes the Municipal Parties improperly rejected its Response or believes the selected Response should not receive a Municipal Parties contract based upon a fact supported issue with the Solicitation or selected Respondent or otherwise protests the award to the Respondent, the Respondent may submit a written protest. 

    CITY OF MESA

    All protests and appeals are governed by the City Procurement Rules (“Procurement Rules”).  The rules surrounding protests and appeals may be found in Section 6 of the Procurement Rules which are located on the Purchasing Division website at http://mesaaz.gov/business/purchasing. Please see the Procurement Rules for more information on the submission of a protest and corresponding appeal rights; if there exist any discrepancy in this Section and the Procurement Rules, the language of the Procurement Rules will control. 

    ADDRESS PROTESTS TO:

    Kristy Garcia

    Procurement Administrator

    20 East Main Street, Suite 450

    PO Box 1466

    Mesa, Arizona 85211-1466

    Fax: (480) 644-2655

    Email: Kristy.Garcia@MesaAZ.gov

    ADDRESS APPEALS TO:

    Edward Quedens

    Chief Procurement Officer

    20 East Main Street, Suite 450

    PO Box 1466

    Mesa, Arizona 85211-1466

    Fax: (480) 644-2687

    Email: Ed.Quedens@MesaAZ.gov

     

    TOWN OF GILBERT

    Pursuant to the Municipal Code Section 2-368,an interested party may protest a solicitation by filing a protest in writing to the purchasing officer not fewer than five days before the closing date and time of the solicitation. An unsuccessful Proposer or Bidder may protest a determination of non-responsiveness or non-responsibility by the Town by filing a protest in writing with the purchasing office not more than five days after issuance of notice of such determination by the Town. An unsuccessful Proposer or Bidder may protest a contract award by filing a protest in writing with the purchasing office not more than five days after issuance of a notice of apparent low responsive and responsible Bidder, or a notice of intent to award. The protest shall include the following information: (1) The name, address, and telephone number of the protester; (2) Identification of the contracting activity and the number of the solicitation; (3) The signature of the protester or its authorized representative; (4) A detailed statement of the legal and factual grounds of the protest, including copies of relevant documents; and (5) The specific relief requested.

    ADDRESS PROTESTS TO:

    Jim Campion

    Procurement Manager

    85 East Civic Center Drive

    Gilbert, Arizona 85296

    Email: Jim.Campion@GilbertAZ.gov

     

    POLICY DOCUMENTS:  The City of Mesa Charter, Code, Procurement Rules, and Management Policy 200 govern this procurement and are incorporated as a part of this Solicitation by this reference.  A copy of these documents may be found on Mesa Purchasing Division’s website at www.mesaaz.gov/business/purchasing. The Town of Gilbert’s Town Code governs this procurement and is incorporated as part of this Solicitation by this reference. A copy of this document may be found on the Town of Gilbert’s website at the following link: https://library.municode.com/az/gilbert/codes/code_of_ordinances?nodeId=CO_CH2AD_ARTIVPR_DIV2PU#TOPTITLE


 

This Scope of Work will be compiled into any resulting contract as Exhibit A.

 

INTENT: The intent of this Request for Proposal (“RFP”) by the City of Mesa and Town of Gilbert is for each Municipal Party to establish a multi-year agreement for all services related to the receipt and processing of recyclable materials for recovery and/or reuse.

 

AWARD: The Municipal Parties intend to award to one (1) or more Respondent’s to meet current and future requirements.

 

DEFINITIONS:

“Bulk Material” means commingled materials collected by Municipal Parties’ recycling programs (prior to any processing of material).

“Extended Hours” means any hours the Receiving Facility is open outside of normal Receiving Times.

    1. “Gross Weight” means the total weight of a load including the materials being transported and the transportation vehicle.
    2. “Material Recovery Facility” or “MRF” means any facility authorized by the State of Arizona to process Bulk Materials into Recyclable Material.

“Material Recovery Rate” means the efficiency of the mechanical and manual sorting steps to separate the mixed stream of recyclable materials without recyclable material ending up in residue streams.

    1. “Municipal Parties” means the Municipal Parties of Mesa and Town of Gilbert.
    2. “Net Weight” shall be calculated by subtracting a specific collection vehicle’s Tare Weight from the Gross Weight during a Bulk Material delivery.
    3. “Pricing Structure” means the criteria, fees, and other applicable information that determines the set price received or paid for services related to any resulting agreement.
    4. “Process,” Processed, or Processing means the sorting, recovery, and treatment of Bulk Materials into Recyclable Materials for the purpose of marketing and selling Recyclable Materials to end markets.
    5. “Receiving Facility” means a transfer station, materials recovery facility, or other facility authorized by the State of Arizona to accept and process Bulk Material.
    6. “Receiving Times” means a minimum of Monday through Saturday during the hours of 6:00 a.m. to 4:00 p.m., including all holidays.
    7. “Recyclable Material” means materials that have been collected, separated, and otherwise processed to meet market specifications for the purpose of recovering materials and returning them to the economic stream as raw materials.
    8. “Residue” means any items collected in Bulk Material that is not accepted in the Municipal Parties’ current recycling program or have not been specified as accepted commodities in the Respondent’s Attachment C Acceptable Materials Form response.
    9. “Tare Weight” means the weight of a vehicle before any cargo is loaded.


BACKGROUND:  The City of Mesa and the Town of Gilbert are neighboring municipalities in the Greater Phoenix Metropolitan Area with an estimated combined population of over 770,000 citizens. The City of Mesa Environmental Management & Sustainability Department and the Town of Gilbert Environmental Services Division provide solid waste and recyclable materials collection services to residential and commercial service units. Collection services are provided by City/Town personnel and utilize City/Town-owned and maintained collection equipment. City of Mesa collection services operates on a six (6) day per week, ten (10) hour per day schedule: Monday through Saturday including all holidays. Town of Gilbert collection services operates on a five (5) day per week, ten (10) hour per day schedule: Monday through Friday including all holidays.

 

Depending on the Municipal Party, supplemental programs are also available to residents such as:

  • The Neighborhood Cleanup Program that provides solid waste and green waste recycling roll-off containers to participating neighborhoods, 
  • A Household Hazardous Materials/Household Hazardous Waste Facility drop-off center with a reuse shop, and
  • Regularly scheduled or on-demand curbside appliance and/or bulk pick up.

           

The Municipal Parties also provide collection services to commercial establishments that subscribe for services and to select City/Town special events. The Municipal Parties also provide a comprehensive array of solid waste programs and services that include metal bin, roll-off, compactor, and curbside barrel service. Some businesses that generate large amounts of cardboard materials may also request a carboard-only metal bin that encourages recycling.


  • Existing Contracts: The Municipal Parties do not currently own any post-collection infrastructure and rely on contracts for the processing of recyclable materials and related services. Each Municipal Party has multiple contracts that include solid waste, recycling, and vegetative waste disposal. For the purposes of this RFP, the current recyclable materials processing contracts and associated expiration dates are provided in Table 1 below. The Municipal Parties are seeking proposals to provide services upon expiration of these respective contracts. 


Table 1: Commingled Recyclable Materials Processing Contract Parties 

& Expiration Dates

Municipal Party

Republic Services

United Fibers

City of Mesa

September 30, 2022

December 31, 2022

Town of Gilbert


December 31, 2022



  • Materials Collected: The Municipal Parties do not have a comprehensive waste characterization study available. In September 2019, the City of Mesa made changes to its commingled recycling program including increased enforcement, removal of recycling drop-off centers, and a significant modification of acceptable materials. In July 2021, the Town of Gilbert modified acceptable materials which included the removal of glass and certain plastics from their commingled recycling program. A current list of recyclable materials collected through the Municipal Parties’ recycling program (“Recyclable “Materials) accepted by each program can be located at the websites identified in Table 2 below. The Municipal Parties each have a search wizard available on their websites to assist residents in determining acceptable items for different solid waste collection programs.

Table 2: Commingled Residential Recyclable Materials Accepted 

by Municipality

 

Municipality

Website

City of Mesa

https://www.mesaaz.gov/residents/trash-recycling/trash-recycling-for-single-family-homes/blue-barrel-recycling-program

Town of Gilbert

https://www.gilbertaz.gov/departments/public-works/solid-waste/recycling

 

 

            Table 3 provides composition results from a previous audit for all materials collected by each municipality’s specific recyclable materials program (“Bulk Material”). The Municipal Parties recognize that geographic, economic, citywide program offerings, and other factors can significantly alter current characterizations of waste. Due to program and contract changes, current composition has likely changed. This table is for information only and is not the guaranteed characterization of each municipality’s commingled program. City of Mesa composition is provided from an audit in 2018 of over twenty (20) tons of Bulk Material. Town of Gilbert composition is provided from an audit in 2021 of approximately fifteen (15) tons of Bulk Material.


Table 3: Commingled Recyclable Materials Previous Composition Results

 

Commodity

City of Mesa Composition (2018)

Town of Gilbert Composition (2021)

OCC

24.07%

28.88%

Mixed Paper (includes ONP/Paperboard)

37.33%

26.76%

Plastics #1 – PET

5.63%

6.95%

Plastics #2 – HDPE Natural

1.33%

1.33%

Plastics #2 – HDPE Colored

1.84%

1.60%

Plastics #3 - #7

1.87%

1.38%

Plastic Bulky/Rigid

1.56%

1.00%

Aluminum - UBC

1.41%

2.43%

Steel/TIN

2.80%

2.18%

Scrap Metal

1.96%

0.79%

Glass

10.57%

14.44%

Residue

9.64%

12.26%

Total

100.00%

100.00%

 

 

  • Tonnage Collected: Estimated tonnages of Bulk Material collected from each Department’s recycling program are provided in Table 4 below. City of Mesa estimates a 1.5% increase in residential account growth annually. Town of Gilbert estimates population to grow by 1.5% annually.


Table 4: Estimated Recyclable Materials Collected Annually 

by Municipality (Tons)

 

 

Municipality

Estimated Residential Blue Barrel Commingled Recyclable Materials Collected Annually

Estimated Commercial Program (Cardboard Only) Collected Annually

City of Mesa

30,000 – 32,000 tons

800 – 1,200 tons

Town of Gilbert

20,000 – 22,000 tons

650 – 750 tons

TOTAL

50,000 – 54,000 tons

1,450 – 1,900 tons


MINIMUM QUALIFICATIONS:  The Respondent(s) shall:

Have the physical capacity, equipment, and personnel necessary to accept and process all contractually required Bulk Material delivered to a Receiving Facility into Recyclable Materials.

  • Obtain all applicable Federal, State, and local permits, licenses, registrations, and certifications necessary to operate, accept, and process materials and ensure those permits, licenses, registrations, and certifications are valid, not revoked, and not suspended for each facility or operation.

SCOPE OF WORK: The Respondent(s) shall be responsible for performing all tasks pertaining to recycling processing operations such as receiving, sorting, processing, storing, marketing, and selling Recyclable Material collected by the Municipal Parties. This shall include the following:

Accept Bulk Materials, including residue, from the Municipal Parties at a Receiving Facility.

If the Receiving Facility is a transfer station, transporting Bulk Materials and residue from the transfer station to a materials recovery facility (“MRF”).

Process Bulk Materials accepted from the Municipal Parties into Recyclable Materials at a MRF.

Market and sell recovered Recyclable Materials to maximize reuse and recovery of materials.

  • The Municipal Parties do not guarantee the quantity, character, or quality of Bulk Materials to be delivered to any selected facility or in general. Upon award of a contract, the Municipal Parties shall estimate the quantity of materials to be delivered to each successful vendor per contract year. Contract(s) may be awarded to multiple vendors to allow the City to operate efficiently in the delivery of services to their customers.

  • 6.1        RECEIVING FACILITY REQUIREMENTS:
  •            
  • Location:
  • Provide a physical location acceptable to both the Municipal Party and Respondent to which it is physically, technically, and economically feasible for each Municipal Party to deliver Bulk Materials.
  • Maintain and operate the location(s) identified in this RFP

  • Hours of Operation Including Holidays:
  • The Respondent(s) shall keep each Receiving Facility open and available for the receipt and processing of Municipal Parties’ deliveries of Bulk Material during the Receiving Times.
  • Each Receiving Facility will be open for all holidays. If there are multiple Receiving Facilities available, the Respondent may coordinate with each Municipal Party to identify and utilize a single Receiving Facility which maximizes efficiency for the majority of the Municipal Parties’ routes on Thanksgiving, Christmas, and New Year’s Day.
  • A Municipal Party may request that Respondent keep a Receiving Facility open for Extended Hours outside of Receiving Times. The Respondent(s) will make best efforts to accommodate a Municipal Party’s request for Extended Hours. The Respondent(s) shall bear all the costs and expenses related to Extended Hours pursuant to this Section, except the Municipal Parties will continue to pay the agreed-upon price for delivered materials.
  • Days and dates of Municipal Parties’ collection are subject to change and the Respondent(s) is responsible for adapting to any changes to a Municipal Party’s collection schedule.

  • Capacity and Priority Assurances
  • Respondent(s) shall ensure each Receiving Facility has the following:
  • Sufficient capacity to accept delivery from the Municipal Party(ies) of all contractually obligated Bulk Materials; and
  • The physical capacity to effectively process all Bulk Materials delivered to the facility from the Municipal Party(ies) in addition to any other Bulk Materials which it is contractually committed to accept and process.
  • The Respondent(s) have committed or will commit to assign Bulk Materials collected by the Municipal Parties and delivered to the Receiving Facility(ies) higher priority in processing and marketing than all other Bulk Materials other than those which are delivered under contracts whose effective dates(s) precede the Effective Date of any Agreement resulting from this RFP.
  •  
  • Scale and Scale House Requirements:
  • Respondent(s) shall furnish, operate, and maintain adequately sized truck scales and computerized record-keeping systems including both hardware and software which accurately records, and measures required information (see section 6.3.1) from all incoming and outgoing Municipal Party collection vehicles at all Receiving Facilities.
  • The Respondents’ scales shall be regularly maintained to ensure their reliability and accuracy at the sole cost and expense of the Respondent.
  • At a minimum, the Respondent shall test each scale every six (6) months by an independent testing firm qualified to perform such tests within the State of Arizona, or an appropriate Arizona governmental agency. The Respondent(s) shall provide the Municipal Parties with copies of all test results for the scales within ten (10) business days after the Respondent’s receipt of such test results.
  • If testing of any scale indicates that such scale exaggerates by one percent (1.0%) or more, Respondent(s) shall calculate the exaggerated amount of the Municipal Party’s Bulk Material weighed over the preceding ninety-day period by applying the percentage by which the scale is inaccurate and either (1) reimburse the Municipal Party for all amounts charged for the exaggerated weight or (2) offset the Municipal Party next month’s bill in the amounts charged for the exaggerated weight.
  • If scales are unavailable during Receiving Times, the Respondent(s) shall use the weight calculated for the same route on the same day from the previous week as provided by the Municipal Party. If that weight is unavailable, the Respondent and applicable Municipal Party shall discuss and mutually agree upon another reasonable value for the weight.
  • The Municipal Parties may conduct random and periodic weight checks of the Respondent(s) scales.
  • Scale house equipment, including card readers, digital displays, and keypads, (“Scale House Equipment”) shall be maintained and operated by the Respondent(s) such that it functions as designed by the manufacturer. If any Scale House Equipment is not functioning as designed by the manufacturer, Respondent shall repair or replace such equipment within fourteen (14) calendar days from the time the malfunction or failure is reported.
  • Weighing and Tare Weights
  • The Respondent(s) shall weigh all loads delivered to each Receiving Facility and shall record said load’s net weight according to each Municipal Parties’ collection vehicle identification numbers as provided by the Municipal Parties. The net weight shall be calculated as described below.
  • The Respondent(s) shall weigh the collection vehicle with its full load of Bulk Material upon entering the Receiving Facility to determine gross weight.
  • The Respondent(s) may require the operators of Municipal Parties’ collection vehicles to weigh their empty trucks at the Respondent(s) scale no more than quarterly and no less than every six (6) months to determine current accurate Tare Weight.  
  • The Municipal Parties will have the right to request re-determination of Tare Weights of collection vehicles up to four times per calendar year. If there is reasonable suspicion that measured Tare Weights are not accurate, the Respondent(s) shall re-determine Tare Weights within seven (7) calendar days of notice.
  • The Net Weight shall be calculated by subtracting the specific collection vehicle’s Tare Weight from the Gross Weight.
  •  
  • Vehicle Maneuvering and Site Accessibility
  • The Respondent(s) shall ensure that each Receiving Facility is designed and operated to allow industry standard refuse collection equipment and transfer trailers hauling on the behalf of the Municipal Parties to access and exit the site easily with minimal maneuvering, backing up, or other safety risks; and to have a safe, industry-standard vehicle clearance (including horizontal and vertical) as required for entry, tipping, clean out, and exiting.
  •  
  • Designated Tipping and Clean Out Areas
  • The Respondent(s) shall provide the following areas for the Municipal Parties’ vehicles at each Receiving Facility that is open and accessible during Receiving Times and Extended Hours: a designated tipping area for Municipal Parties’ vehicles to unload and deposit Bulk Materials, and a designated clean out area for the Municipal Parties’ operators to remove excess debris from the collection vehicles before leaving the Receiving Facility at no additional cost to the Municipal Parties.
  • The designated tipping and clean out areas shall be clearly marked and identifiable to drivers in Municipal Parties’ vehicles, in a leveled, safe area, and maintained reasonably clear of debris, standing water, or other safety concerns.
  •  
  • Driving Surfaces
  • All roads, designated driveways, designated routes, and other driving surfaces within or adjacent to the Receiving Facility shall be maintained in good condition, free of potholes, bumps and debris. The Respondent will suppress dust in compliance with all applicable federal, state, and local laws, regulations, and ordinances.
  •  
  • Lighting
  • The Respondent(s) shall ensure that adequate artificial light is provided to minimize safety risks in the operation of each Receiving Facility. Adequate artificial lighting shall be provided (1) in the interior of the Receiving Facility, and (2) the exterior and peripheral of each Receiving Facility including any roadways or designated paths of travel at minimum during periods of diminished natural light.

  • Signage
  • Each Receiving Facility shall post and maintain clear and legible signage for Municipal Party employees using such facility that addresses the following requirements at a minimum: (1) designated areas for tipping and clean out, (2) safety indicators/barriers such as truck or pedestrian crossings, and (3) any site requirements that apply to the vehicle operators such as personal protective equipment.
  • Any repairs to existing signage or additional requested signage shall be posted within a reasonable time not to exceed fourteen (14) calendar days from the time the repair or request is reported.
  •  
  • Flooding, Drainage, and Adverse Weather Conditions
  • Respondent(s) shall maintain each Receiving Facility to protect and prevent adverse impacts to Bulk Materials, Recyclable Materials, and Receiving Facility operations from adverse weather conditions including flooding such as is necessary to prevent adverse impacts on Receiving Facility operations. This requirement may include but is not limited to, constructing and maintaining proper drainage channels, berms, or stormwater retention or infiltration structures.
  •  
  • Restroom Availability
  • Respondent(s) shall provide clean and maintained restroom facilities with hygiene supplies including toilet paper, soap, and hand washing stations for the use of each Municipal Parties’ employees while on site at each Receiving Facility including parking for restroom use. Restrooms must follow Occupational Safety and Health Administration (OSHA) and any other applicable health guidelines.
  •  
  • Litter, Odor, and Other Nuisances
  • Respondent(s) shall prevent or timely remediate any litter, odor, noise, or other nuisance at each Receiving Facility and its surrounding grounds, and other public or private property used by Respondent(s) in a commercially reasonable manner and to the extent required by applicable laws, regulations, and permits, in the provision of services in connection with any Agreement resulting from this RFP.

  • Vehicle Turnaround Time
  • The Respondent(s) shall operate each Receiving Facility to (1) minimize adverse traffic impacts at each Receiving Facility and immediately surrounding public and private roadways, and (2) to minimize the time required for Municipal Parties collection vehicles to access, utilize, and leave the Receiving Facility(ies) (“Turnaround Time”). Each selected proposer shall maintain a daily average Turnaround Time for the Municipal Parties’ vehicles of no more than ten (10) minutes per delivery.  The Turnaround Time shall be calculated as follows:
  • Turnaround Time shall begin upon the longer of the Municipal Party’s vehicle entering the Receiving Facility’s gates or entering a queueing line.
  • Turnaround Time shall end upon the Municipal Party’s vehicle passing the exit gates to the Receiving Facility; and
  • Turnaround Time entrance and exit times shall be calculated based on collection vehicles’ onboard GPS technology.
  • Turnaround Time shall exclude delays resulting from factors outside of the reasonable control of the Respondent including but not limited to driver breaks, Municipal Party vehicle safety checks, and Municipal Party vehicle downtime.
  •  
  • Ownership of Materials
  • Ownership and risk of loss of Bulk Materials shall pass to Respondent(s) upon the Bulk Material being deposited at the Receiving Facility unless such Bulk Material is appropriately rejected in conformance with this Scope of Work.  
  • After the ownership and risk of loss of Bulk Material passes to Respondent, the Respondent shall owe the Municipal Party for all Recyclable Materials therein in the amounts described in the provisions of an Agreement formed as a result of this RFP regardless of any loss, damage, theft, or other devaluation of the Recyclable Materials

  • Acceptance and Rejection of Loads 
  • Prior to departure of a Municipal Party’s vehicle from a Receiving Facility, the Respondent(s) may reject a load if the load contains materials which may not be disposed at the applicable facility under State permit(s) and such materials cannot be removed by the Respondent without violating applicable laws or presenting an imminent and substantial endangerment to the public, employee health or safety, or the environment. The Respondent may not reject a load for any other reason.
  • If a load is rejected under subsection (a), the Respondent shall:
  • Provide telephonic notice and written notification with photograph or video evidence explaining the reason the load was rejected to the applicable Municipal Party’s designated contact prior to the vehicle departing the Receiving Facility. 
  • Safely maintain the rejected load separately from other material to afford the Municipality the right to inspect the load.
  • The Municipality shall have twenty-four (24) of the Respondent’s business hours from receipt of the later of the telephonic or written notice to inspect the rejected load. If a Respondent fails to either provide proper notice in accordance with this section or timely reject a load deposited at their Receiving Facility, the load shall be deemed accepted by the Respondent.

  • Disposal of Waste and Residue
  • The Respondent shall be solely responsible for any and all costs associated with the handling and disposal of Residue unless (i) a maximum percentage of Residue per truckload is defined and (ii) a disposal price for Residue above that threshold (“Excess Residue Fee”) is listed on the processing fee form (Attachment A). Respondent shall be solely responsible for all costs related to the disposal of special waste including medical waste and hazardous waste deposited at a Receiving Facility and the Respondent shall dispose of such wastes in accordance with all applicable laws and regulations and ordinances.

  • 6.2        PROCESSING REQUIREMENTS
  •  
  • Recyclable Materials
  • If at any time during the term of an Agreement resulting from this RFP, a Municipal Party desires to add or remove a commodity from the accepted materials list in the Respondent’s Attachment C or the Respondent is able to accept, process, and market a new commodity, the Municipal Party and Respondent shall in good faith negotiate the proposed addition or removal of such Recyclable Material(s) and any changes to the agreed upon pricing structure.

  • Processing Method Efficiency and Quality Control
  • The Respondent(s) shall process Bulk Materials delivered by Municipal Parties in a way that achieves a high recovery rate of Recyclable Materials.



  • Composition Audit Procedures
  • Respondent shall periodically analyze the composition and character of the Bulk Material delivered by each Municipal Party (“Composition Audit”) according to the terms and conditions of this subsection if necessary for the agreed upon pricing structure. The Composition Audit and information developed therefrom will be used to determine the assumed tonnage of each Recyclable Material category delivered to Respondent and the percentage of Residue (“Assumed Tonnage”). The Assumed Tonnage developed through a Composition Audit shall be used prospectively as the basis for calculating payments (or invoice offsets) owed from Respondent to Municipal Party for profit sharing resulting from the marketing of Recyclable Material. The Respondent shall, at its sole cost and expense, supply all labor and equipment necessary to perform the Composition Audit. Respondent shall provide Municipal Parties with at least three (3) business days’ notice before a Composition Audit. Municipal Parties may have representatives present during any Composition Audit.
  •  
  • Upon request by a Municipal Party, Respondent shall sample no less than two (2) full Municipal Party truckloads of Bulk Materials randomly selected by the Municipal Party. The Bulk Material delivered for the purpose of the Composition Audit shall be segregated from being mixed with other materials.

  • The Respondent shall process the Bulk Material in the selected truckloads in conformance with normal processing procedures (equipment speed, number of sorters, etc.) (“Initial Sort”).

  • The Initial Sort shall process the Bulk Materials into acceptable commodities categories listed in Attachment C Acceptable Materials Form and Residue.

  • The results of each processed acceptable commodity category from the Initial Sort shall be weighed, documented, and calculated to determine the percentage of the entire truckload(s) from which they originated.

  • If more than five percent 5% by weight of the Initial Sort is Residue, Respondent shall re-process the Residue into acceptable commodities categories listed in Attachment C Acceptable Materials Form and thereafter follow the same process described in Section 6.2.3.e (“Secondary Sort”). A Secondary Sort may only conclude when five percent (5%) or less of the Residue consists of acceptable commodities categories listed in Attachment C Acceptable Materials Form.

  • A Composition Audit shall be performed a minimum of once per twelve (12) month period for each applicable Municipal Party. The Respondent and each applicable Municipal Party shall mutually agree on dates and times to conduct the Composition Audit. Either Party may request additional Composition Audit samplings upon prior written notice of five (5) business days to the other Party, provided, however, that the Composition Audit sampling for any single Municipal Party shall not occur more frequently than two (2) times in any six (6) month period. 

  • Respondent agrees that the results of any Composition Audit shall not modify the allowable Residue amount listed in Attachment A Processing Fee Form for any of the Bulk Material delivered by the Municipal Parties.

  • The Respondent shall be responsible for providing the Municipal Party with a report describing each Composition Audit. The report shall show a) the number of vehicle loads sampled; b) the total weight for each sampled load; c) the weight of each acceptable materials category listed in Attachment C - Acceptable Materials Form, d) the calculated Residue weight for all loads; and d) the weight of each acceptable materials category and the Residue as a percentage of the total weight delivered.

  • Storage Requirements
  • The Respondent shall store Recyclable Materials in a manner designed to prevent degradation of such materials, prevent negative impact to maneuvering of vehicles, and assure the safety of persons.

  • Prohibited Landfilling of Recyclable Materials
  • The Respondent(s) shall not dispose of any Recyclable Materials or market program Recyclable Materials with or to markets that the Respondent knows or reasonably should have anticipated will dispose of the program Recyclable Materials except when approved in advanced writing by the applicable Municipal Party.

  • Marketing Requirements
  • Respondent shall use its best efforts in marketing and promoting the sale of all Recyclable Materials to obtain the highest prices available under prevailing conditions in the relevant market. Respondent(s) will exert at least the same effort in marketing the Recyclable Materials from the Municipal Parties as it does in marketing materials which it markets for its own account as principal or as an agent or broker for any third party. Respondent(s) shall not use, sell to, or broker through an affiliate in the marketing of Recyclable Materials without notifying the Municipal Parties in writing, except those as provided within ‘TAB 3 - Program Description and Method of Approach’ of Respondent’s response. Contractor shall not use any artifice, business structure, or other attempts to evade this requirement.

  • The Respondent(s) shall ensure that Recyclable Materials are marketed to commodity purchasers that will handle Recyclable Materials in an environmentally sound manner and devote the materials to an end-use involving the creation or manufacture of new products or reuse of products.

  • 6.3        ADMINISTRATIVE REQUIREMENTS
  •  
  • Recordkeeping and Reporting
  • The Respondent(s) shall provide detailed statement(s) to each Municipal Party with the information listed below at regular intervals for each calendar month. The statements shall be provided electronically in Microsoft Excel format no more than weekly and no less than monthly prior to the receipt of the monthly invoice in Section 6.3.1.b.
  • Identification of Receiving Facility (if multiple),
  • Date of each delivery to Receiving Facility,
  • Time of each delivery to Receiving Facility,
  • Transaction reference number (i.e., ticket number),
  • Collection vehicle identification number,
  • Gross weight of collection vehicle,
  • Tare weight of material delivered,
  • Type of Bulk material (i.e., cardboard only or comingled),
  • Identification of any rejected loads or loads that have not been processed,
  • And any other information as requested by the Municipal Parties.

  • The Respondent(s) shall provide a monthly invoice to each Municipal Party within ten (10) days following the end of the calendar month for which the invoice is generated. The monthly invoice shall contain the following information:
  • Contractor name, address, and contact information,
  • The contract number as listed on the first page of the applicable agreement,
  • Invoice number and date,
  • Account number or customer ID (if applicable),
  • Payment terms,
  • Applicable taxes,
  • Applicable Arizona Department of Environmental Quality (ADEQ) charges,
  • Itemization or separation of any related credits,
  • Total amount due or owed to Municipal Party.

  • The Respondent(s) shall attach to the monthly invoice required in Section 6.3.1.b all necessary backup documentation and calculations electronically in Microsoft Excel format. At a minimum, backup documentation must include the following information:
  • A true-up amount describing the financial obligations between the appliable Municipal Party and Respondent for the calendar month based on the following information:
  • The total net weight (in tons) accepted by Receiving Facility.
  • The contractually agreed-upon pricing structure.
  • The accepted material and residue categories as submitted in Attachment C Acceptable Materials.
  • The assumed volume of each commodity as determined by the Composition Audit procedures listed (if applicable to Respondent’s pricing structure).

  • Payment
  • Payment of Invoices
  • Each monthly invoice shall be paid within thirty (30) days of receipt.
  • If either Party, in good faith, disputes any amount due under a monthly invoice, such Party must notify the other Party of the specific basis for the dispute.

  • Other Records
  • The Respondent(s) shall create, maintain, and make available records as set forth below and as otherwise required by applicable laws:
  • Documentation of any license and/or permit violations or notices of opportunities to correct by Receiving Facility and other information as reasonably request by the Municipal Parties.
  • Documentation, records, and/or reports summarizing Receiving Facility operations which track number of loads, number of tons, maintenance activities, and data related to the Material Recovery Rate.
  • Documentation of Recyclable Materials sent to be recovered and/or recycled including tonnage of material, type of material, end market for materials, product(s) produced (if any), revenues from sale of materials, and other information reasonably requested by Mesa.

  • Licenses and Permits
  • The Respondent(s) shall be solely responsible for any and all costs required to secure, maintain, and remain in compliance with all licenses and permits required for the satisfactory performance of all scope of work services.
  •  
  • Personnel
  • The Respondent(s) shall be solely responsible for hiring and maintaining qualified personnel, including key personnel, to provide the scope of services in a safe, thorough, professional, and efficient manner.
  • The Respondent(s) shall furnish personnel with personal protective equipment and other appropriate safety equipment.
  • The Respondent(s) shall provide regular, ongoing, and adequate training for its personnel.
  • The Respondent(s) shall ensure its personnel adheres to all applicable laws in the performance of the scope of services. 
  • The Municipal Parties may require the Respondent(s) to remove any unqualified personnel, as determined by the Municipal Parties, from providing services related to any Agreement that results from the RFP.

  • Visitation and Inspection Rights
  • The Respondent(s) shall arrange for the Municipal Parties to have free access to inspect each Receiving Facility during Receiving Times.

PRICING: 


Prices.  All pricing shall be firm for the Term and all extensions or renewals of the Term except where otherwise provided in this Agreement and include all costs of the Contractor providing the materials/service including transportation, insurance, and warranty costs.  No fuel surcharges will be accepted unless allowed in this Agreement.  The City shall not be invoiced at prices higher than those stated in the Agreement.


The Contractor further agrees that any reductions in the price of the materials or services covered by this Agreement will apply to the undelivered balance.  The Contractor shall promptly notify the City of such price reductions.


No price modifications will be accepted without proper request by the Contractor and response by the City’s Purchasing Division.


Price Adjustment.  Any requests for reasonable price adjustments must be submitted in accordance with this section.  Requests for adjustment in the cost of labor and/or materials must be supported by appropriate documentation.  There is no guarantee the City will accept a price adjustment therefore Contractor should be prepared for the Pricing to be firm over the Term of the Agreement.  The City is only willing to entertain price adjustments based on an increase to Contractor’s actual expenses or other reasonable adjustments in providing the services/materials under the Agreement. If the City agrees to the adjusted price terms, the City shall issue written approval of the change.

 

During the sixty (60) day period before annual anniversary date of the Agreement, the Contractor may submit a written request to the City to allow an increase to the prices in an amount not to exceed the twelve (12) month change in the Consumer Price Index for All Urban Consumers (CPI-U), US City Average, All Items, Not Seasonally Adjusted as published by the U.S. Department of Labor, Bureau of Labor Statistics (http://www.bls.gov/cpi/home.htm). The City shall review the request for adjustment and respond in writing; such response and approval shall not be unreasonably withheld. Annual CPI adjustment shall not exceed 5.00%. The Municipal Parties may choose to request a decrease in prices by following the same procedures state above.

 

Renewal and Extension Pricing.  Any extension of the Agreement will be at the same pricing as the initial Term.  If the Agreement is renewed in accordance with Section 6, pricing may be adjusted for amounts other than inflation that represent actual costs to the Contractor based on the mutual agreement of the parties.  The Contractor may submit a request for a price adjustment along with appropriate supporting documentation demonstrating the cost to the Contractor.  Renewal prices shall be firm for the term of the renewal period and may be adjusted thereafter as outlined in the previous section. There is no guarantee the City will accept a price adjustment.


PERFORMANCE SECURITY: Yes           


Simultaneously with the execution of the Contract, Respondent will be required to furnish a performance security. The initial performance security shall be fifty thousand dollars ($50,000.00). On the first anniversary of the effective date of the Agreement between the Respondent and Municipal Party and on each subsequent anniversary thereafter, the performance security as to each Municipal Party will be adjusted to an amount equal to fifty percent (50%) of the total payments made by the Municipal Party to Respondent during the preceding year. The performance security may be submitted in one-year increments and any one of the following forms: an executed surety bond issued by a firm licensed and registered to transact such business with the State of Arizona; cash; cashier's check or money order payable to the Municipal Party (personal and company checks are not acceptable); certificate of deposit or any other form of deposit; funded escrow account in a form acceptable to the applicable Municipal Party; or irrevocable letter of credit issued by a financial institution and acceptable to the applicable Municipal Party. The Municipal Party shall have the right to liquidated damages equaling the then-existing performance security and Respondent shall forfeit all rights to the same in the event Respondent defaults on an agreement executed in response to this RFP.

 

TYPES AND AMOUNTS OF INSURANCE:  Insurance requirements are detailed in the Agreement document.  Contractor must obtain and retain throughout the term of the Agreement, at a minimum, the following:


Worker’s compensation insurance in accordance with the provisions of Arizona law.  If Contractor operates with no employees, Contractor must provide the City with written proof Contractor has no employees.  If employees are hired during the course of this Agreement, Contractor must procure worker’s compensations in accordance with Arizona law.


The Contractor shall maintain at all times during the term of this contract, a minimum amount of $1 million per occurrence/$2 million aggregate Commercial General Liability insurance, including Contractual Liability.  For General Liability insurance, the City of Mesa, their agents, officials, volunteers, officers, elected officials, or employees shall be named as additional insured, as evidenced by providing an additional insured endorsement.


Automobile liability, bodily injury, and property damage with a limit of $1 million per occurrence including owned, hired, and non-owned autos.


Contractor’s Pollution Liability - Contractor’s pollution liability coverage with project-specific limits of $1,000,000 per loss and a $2,000,000 annual aggregate for losses caused by pollution conditions that arise from the operations of the Contractor as specified in the Contract’s scope of work and which shall include:


Bodily injury sickness, disease, death, mental anguish or shock;

Property damage, including physical injury, to or destruction of property including loss of use, cleanup costs, and loss of use of property not physically injured nor destroyed; and

Defense costs, including charges and expenses for investigation and claims adjustment.

Before the execution of the Contract, the Contractor shall provide the City with a Certificate of Insurance (using appropriate ACORD certificate) SIGNED by the Issuer, applicable endorsements, and the City reserves the right to request additional copies of any or all of the above policies, endorsements, or notices relating thereto. 

When the City requires a Certificate of Insurance to be furnished, the Contractor's insurance shall be primary of all other sources available.  When the City is a certificate holder, the Contractor agrees that no policy shall expire, be canceled, or materially changed to affect the coverage available without advance written notice to the City.

“Waiver of Subrogation".  The policies required by this agreement (or contract) shall contain a waiver of transfer rights of recovery (subrogation) against the City, its agents, representatives, directors, elected officials, officers, employees, and volunteers for any claims arising out of the work of Contractor.”

All insurance certificates and applicable endorsements are subject to review and approval by the City's Risk Manager.

 


 

Respondent must utilize the below document when responding to this Solicitation and return the document in an Excel format along with example invoices created for Scenarios with their response.




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(This Document Contains Multiple Tabs)

 
 
 



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AGREEMENT PURSUANT TO SOLICITATION

 


 

CITY OF MESA AGREEMENT NUMBER 2023001

 

RECYCLING PROCESSING AND MARKETING SERVICES

 


 

CITY OF MESA, Arizona (“City”)

 

Department Name

City of Mesa – Purchasing Division

Mailing Address

P.O. Box 1466


Mesa, AZ  85211-1466

Delivery Address

20 East Main St, Suite 450


Mesa, AZ  85201

Attention

Evan Karl, NIGP-CPP, CPPB

Procurement Officer I

E-Mail

Evan.Karl@MesaAZ.gov

Phone

(480) 644-2356

 


 

With a copy to:       City of Mesa – Environmental Management & Sustainability

 

Attn:  Name, Title

 

P.O. Box 1466

 

Mesa, AZ  85211-1466

 

EndUserEmail@MesaAZ.gov

 

 

AND


COMPANY NAME, (“Contractor”)

Mailing Address




Remit to Address




Attention


E-Mail


Phone


Fax



 
 
 

 

CITY OF MESA AGREEMENT PURSUANT TO SOLICITATION

 

This Agreement pursuant to Solicitation (“Agreement”) is entered into this ___ day of ______________, 2022, by and between the City of Mesa, Arizona, an Arizona municipal corporation (“City”), and CompanyName, a(n) State corporation/company/natural person (“Contractor”). The City and Contractor are each a “Party” to the Agreement or together are “Parties” to the Agreement. 


RECITALS


The City issued Solicitation number 2023001 (“Solicitation”) for RECYCLING PROCESSING AND MARKETING SERVICES, to which Contractor provided a response (“Response”); and


The City Selected Contractor’s Response as being in the best interest of the City and wishes to engage Contractor in providing the services/materials described in the Solicitation and Response.


In consideration of the reciprocal promises contained in the Agreement, and for other valuable and good consideration, which the Parties acknowledge the receipt and sufficiency of, the Parties agree to the following Terms & Conditions.

 

TERMS & CONDITIONS


Term. This Agreement is for a term beginning on January 1, 2023 and ending on December 31, 2028.  The use of the word “Term” in the Agreement includes the aforementioned period as well as any applicable extensions or renewals in accordance with this Section 1.


Renewals. The City of Mesa, at its sole discretion, may renew the Term for a maximum of five (5) additional years. Any single renewal must be for at least one (1) year period.  Any renewal(s) will be a continuation of the same terms and conditions as in effect immediately before the expiration of the then-current term. 

 

Extension for Procurement Processes.  Upon the expiration of the Term of this Agreement, including any renewals permitted herein, at the City’s sole discretion this Agreement may be extended on a month-to-month basis for a maximum of six (6) months to allow for the City’s procurement processes in the selection of a vendor to provide the same or similar services and/or materials provided under this Agreement.  The City will notify the Contractor in writing of its intent to extend the Agreement at least thirty (30) calendar days before the expiration of the Term.  Any extension under this Subsection 1.2 will be a continuation of the same terms and conditions as in effect immediately before the expiration of the then-current term.


Scope of Work.  The Contractor will provide the services, materials, and obligations attached to this Agreement as Exhibit A (“Scope of Work”), including the necessary staff, services, and associated resources. Contractor will be responsible for all costs and expenses incurred by Contractor that are incident to the performance of the Scope of Work unless otherwise stated in Exhibit A.  Contractor will supply all facilities, equipment and instrumentalities necessary to perform the Scope of Work. 


This Agreement is based on the Solicitation and Response which are hereby incorporated by reference into the Agreement as if written out and included herein. In addition to the requirements specifically set forth in the Scope of Work, the Parties acknowledge and agree that the Contractor shall perform in accordance with all terms, conditions, specifications, and other requirements set forth within the Solicitation and Response unless modified herein.


Document Order of Precedence.  In the event of any inconsistency between the terms of the body of the Agreement, the Exhibits, the Solicitation, and Response, the language of the documents will control in the following order.


Agreement

Exhibits

Mesa Standard Terms & Conditions

Scope of Work

Other Exhibits not listed above

Solicitation including any addenda

Contractor Response


Payment.


General.  Subject to the provisions of the Agreement, the City will pay Contractor the sum(s) described in Exhibit B (“Pricing”) in consideration of Contractor’s performance of the Scope of Work during the Term.


Prices.  All pricing shall be firm for the Term and all extensions or renewals of the Term except where otherwise provided in this Agreement and include all costs of the Contractor providing the materials/service including transportation, insurance, and warranty costs.  No fuel surcharges will be accepted unless allowed in this Agreement.  The City shall not be invoiced at prices higher than those stated in the Agreement.


The Contractor further agrees that any reductions in the price of the materials or services covered by this Agreement will apply to the undelivered balance.  The Contractor shall promptly notify the City of such price reductions.


No price modifications will be accepted without proper request by the Contractor and response by the City’s Purchasing Division.


Price Adjustment.  Any requests for reasonable price adjustments must be submitted in accordance with this Section 5.3.  Requests for adjustment in the cost of labor and/or materials must be supported by appropriate documentation.  There is no guarantee the City will accept a price adjustment therefore Contractor should be prepared for the Pricing to be firm over the Term of the Agreement.  The City is only willing to entertain price adjustments based on an increase to Contractor’s actual expenses or other reasonable adjustments in providing the services/materials under the Agreement. If the City agrees to the adjusted price terms, the City shall issue written approval of the change.

 

      During the sixty (60) day period before annual anniversary date of the Agreement, the Contractor may submit a written request to the City to allow an increase to the prices in an amount not to exceed the twelve (12) month change in the Consumer Price Index for All Urban Consumers (CPI-U), US City Average, All Items, Not Seasonally Adjusted as published by the U.S. Department of Labor, Bureau of Labor Statistics (http://www.bls.gov/cpi/home.htm). The City shall review the request for adjustment and respond in writing; such response and approval shall not be unreasonably withheld. Annual CPI adjustments shall not exceed five  percent (5.0%). The City may choose to request a decrease in prices by following the same procedures stated above.

 

      Renewal and Extension Pricing.  Any extension of the Agreement will be at the same pricing as the initial Term.   If the Agreement is renewed in accordance with Section 1, pricing may be adjusted for amounts other than inflation that represent actual costs to the Contractor based on the mutual agreement of the Parties.  The Contractor may submit a request for a price adjustment along with appropriate supporting documentation demonstrating the cost to the Contractor.  Renewal prices shall be firm for the term of the renewal period and may be adjusted thereafter as outlined in the previous section. There is no guarantee the City will accept a price adjustment.


Invoices.  Payment will be made to Contractor following the City’s receipt of a properly completed invoice.  No terms set forth in any invoice, purchase order, or similar document issued by Contractor will be deemed accepted by the City; the terms of the contractual relationship between the Parties are as set forth in this Agreement. Any issues regarding billing or invoicing must be directed to the City Department/Division requesting the service or material from the Contractor.  A properly completed invoice shall comply with the conditions and contain the information described in Section 6.3.1 of the Scope of Work in Attachment A.


Payment of Funds.  Contractor acknowledges the City may, at its option and where available use a Credit Card/Procurement Card to make payment for orders under the Agreement with no additional charge/fee.  Otherwise, payment will be through a traditional method of a check.


Disallowed Costs, Overpayment.  If at any time the City determines that a cost for which payment was made to Contractor is a disallowed cost, such as an overpayment or a charge for materials/service not in accordance with the Agreement, the City will notify Contractor in writing of the disallowance; such notice will state the means of correction which may be, but is not limited to, adjustment of any future claim/invoice submitted by Contractor in the amount of the disallowance, or to require repayment of the disallowed amount by Contractor.  Contractor will be provided with the opportunity to respond to the notice.


Insurance.


  • Contractor must obtain and maintain at its expense throughout the term of Contractor’s agreement, at a minimum, the types and amounts of insurance set forth in this Section 5 from insurance companies authorized to do business in the State of Arizona; the insurance must cover the materials/service to be provided by Contractor under the Agreement.  For any insurance required under the Agreement, Contractor will name the City of Mesa, its agents, representatives, officials, volunteers, officers, elected officials, and employees as additional insured, as evidenced by providing either an additional insured endorsement or proper insurance policy excerpts.


  • Nothing in this Section 5 limits Contractor’s responsibility to the City.  The insurance requirements herein are minimum requirements for the Agreement and in no way limit any indemnity promise(s) contained in the Agreement.


  • The City does not warrant the minimum limits contained herein are sufficient to protect Contractor and subcontractor(s) from liabilities that might arise out of performance under the Agreement by Contractor, its agents, representatives, employees, or subcontractor(s).  Contractor is encouraged to purchase additional insurance as Contractor determines may be necessary.


  • Each insurance policy required under the Agreement must be in effect at or before the execution of the Agreement and remain in effect for the term of the Agreement. 


  • Before the execution of the Agreement, Contractor will provide the City with a Certificate of Insurance (using an appropriate “ACORD” or equivalent certificate) signed by the issuer with applicable endorsements.  The City reserves the right to request additional copies of any or all of the policies, endorsements, or notices relating thereto required under the Agreement.


  • When the City requires a Certificate of Insurance to be furnished, Contractor's insurance is primary of all other sources available. When the City is a certificate holder and/or an additional insured, Contractor agrees no policy will expire, be canceled, or be materially changed to affect the coverage available without advance written notice to the City.


  • The policies required by the Agreement must contain a waiver of transfer rights of recovery (waiver of subrogation) against the City, its agents, representatives, officials, volunteers, officers, elected officials, and employees for any claims arising out of the work of Contractor.


  • All insurance certificates and applicable endorsements are subject to review and approval by the City's Risk Management Division.


  • Types and Amounts of Insurance.  Contractor must obtain and retain throughout the term of the Agreement, at a minimum, the following:


  • Worker’s compensation insurance in accordance with the provisions of Arizona law.  If Contractor operates with no employees, Contractor must provide the City with written proof Contractor has no employees.  If employees are hired during the course of this Agreement, Contractor must procure worker’s compensations in accordance with Arizona law.


  • The Contractor shall maintain at all times during the term of this contract, a minimum amount of $1 million per occurrence/$2 million aggregate Commercial General Liability insurance, including Contractual Liability.  For General Liability insurance, the City of Mesa, their agents, officials, volunteers, officers, elected officials, or employees shall be named as additional insured, as evidenced by providing an additional insured endorsement.


  • Automobile liability, bodily injury, and property damage with a limit of $1 million per occurrence including owned, hired, and non-owned autos.


6.9.4     Contractor’s Pollution Liability - Contractor’s pollution liability coverage with project-specific limits of $1,000,000 per loss and a $2,000,000 annual aggregate for losses caused by pollution conditions that arise from the operations of the Contractor as specified in the Contract’s scope of work and which shall include:


i.       Bodily injury sickness, disease, death, mental anguish or shock;

ii.       Property damage, including physical injury, to or destruction of property including loss of use, cleanup costs, and loss of use of property not physically injured nor destroyed; and

iii.      Defense costs, including charges and expenses for investigation and claims adjustment.


Requirements Contract.  Contractor acknowledges and agrees the Agreement is a requirements contract; the Agreement does not guarantee any purchases will be made (minimum or maximum).  Orders will only be placed when the City identifies a need and issues a purchase order or a written notice to proceed.  The City reserves the right to cancel purchase orders or a notice to proceed within a reasonable period of time of issuance; any such cancellation will be in writing.  Should a purchase order or notice to proceed be canceled, the City agrees to reimburse Contractor for any actual and documented costs incurred by Contractor.  The City will not reimburse Contractor for any avoidable costs incurred after the receipt of cancellation including, but not limited to, lost profits, shipment of product, or performance of services. 


Performance Security.  This Agreement requires a performance security to be furnished by Contractor to secure the full, complete, and faithful performance of the terms and conditions herein.   Before the execution of the Agreement signed by Contractor’s duly authorized representative, Contractor shall furnish the City with performance security in the amount of fifty thousand dollars ($50,000). On the first anniversary of the Effective Date and each subsequent anniversary thereafter during the Term of this Agreement, the Performance Security must be adjusted by Contractor such that the amount of the Performance Security shall equal fifty percent (50%) of the total amount paid by City to Contractor in the preceding year. City shall return any remaining (undrawn) portion of the Performance Security to Contractor thirty (30) days after the termination or expiration of this Agreement.  The Performance Security may be in the form of:


Cash;


Letter of Credit. Each letter of credit must be an irrevocable direct-pay letter of credit from a Qualified Institution in favor of the City. A Qualified Institution under this subsection is a U.S. financial institution whose long-term and short-term debt is rated (i) “A2” or higher by Moody’s, or (“A”) or higher by Standard & Poor’s, Fitch, or A.M.;


Fully-funded escrow account held and managed by an independent financial institution in a form acceptable to the City;


Certified Check, Cashier's Check, or Money Order payable to the City of Mesa (personal and company checks are not acceptable);


Certificate of Deposit or any other form of deposit issued by a financial institution and acceptable to the City; or


Bond.  Each bond must be:


Executed by a surety company or companies holding a certificate of authority to transact surety business in the State of Arizona issued by the Director of the Arizona Department of Insurance, thus a bond must not be executed by an individual surety or sureties;


Made payable and acceptable to the City;


Issued by a surety company or companies rated “Best-A” or better, as required by the City, based on the company’s (-ies’) current listing in the most recent Best Key Rating Guide published by A.M. Best Company; and


Written or countersigned by an authorized representative of the surety who is either a resident of the State of Arizona or whose principal office is maintained in Arizona, as required by law.


Liquidated Damages. The Parties agree that it would be difficult to calculate or prove losses and damages resulting from a default of this Agreement and therefore agree that the following liquidated damages amount is reasonable in relation to the anticipated damages and losses resulting from a default. If Contractor defaults under this Agreement, City shall have the right but not the obligation to immediately collect and/or draw the entirety of the then-existing Performance Security as liquidated damages.

 

Notices. All notices to be given pursuant to the Agreement will be delivered to the Contractor as listed on Page 1 of this Agreement.  Notice will be delivered pursuant to the requirements set forth in the Mesa Standard Terms and Conditions that is attached to the Agreement as Exhibit C


Representations of Contractor. To the best of Contractor’s knowledge, Contractor agrees that:


Contractor has no obligations, legal or otherwise, inconsistent with the terms of the Agreement or with Contractor’s undertaking of the relationship with the City;


Performance of the services called for by the Agreement do not and will not violate any applicable law, rule, regulation, or any proprietary or other right of any third party;


Contractor will not use in the performance of Contractor’s responsibilities under the Agreement any proprietary information or trade secret of a former employer of its employees (other than City, if applicable); and


Contractor has not entered into and will not enter into any agreement, whether oral or written, in conflict with the Agreement.


Mesa Standard Terms and Conditions.  Exhibit C to the Agreement is the Mesa Standard Terms and Conditions as modified by the Parties, which are incorporated by reference into the Agreement as though fully set forth herein.  In the event of any inconsistency between the terms of the Agreement and the Mesa Standard Terms and Conditions, the language of the Agreement will control. The Parties or a Party are referred to as a “party” or “parties” in the Mesa Standard Terms and Conditions.  The Term is referred to as the “term” in the Mesa Standard Terms and Conditions.


Counterparts and Facsimile or Electronic Signatures.  This Agreement may be executed in two (2) or more counterparts, each of which will be deemed an original and all of which, taken together, will constitute one agreement.  A facsimile or other electronically delivered signature to the Agreement will be deemed an original and binding upon the Party against whom enforcement is sought.


Incorporation of Recitals and Exhibits.  All Recitals and Exhibits to the Agreement are hereby incorporated by reference into the Agreement as if written out and included herein.  In the event of any inconsistency between the terms of the body of the Agreement and the Exhibits, the language of the documents will control in the following order:


Agreement

Exhibits

Mesa Standard Terms & Conditions

Scope of Work

Other Exhibits not listed above

Solicitation document, including any addenda

Contractor Response


Exhibits to this Agreement are the following:


(A) Scope of Work

(B) Pricing

(C) Mesa Standard Terms and Conditions


Attorneys’ Fees.  The prevailing Party in any litigation arising out of the Agreement will be entitled to the recovery of its reasonable attorney’s fees, court costs, and other litigation-related costs and fees from the other Party.


Additional Acts.  The Parties agree to execute promptly such other documents and to perform such other acts as may be reasonably necessary to carry out the purpose and intent of the Agreement.


Headings.  The headings of the Agreement are for reference only and will not limit or define the meaning of any provision of the Agreement.


By executing below, each Party acknowledges that it understands, approves, and accepts all of the terms of the Agreement and the attached exhibits.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.



 

 
 
 

CITY OF MESA, ARIZONA



By:                                                                   


 

                                                                        

Printed Name

 

                                                                        

Title

 

                                                                        

Date




ReVIEWED BY:



By:                                                                   
Evan Karl, NIGP-CPP, CPPB

Procurement Officer I





 

  • CONTRACTOR NAME



By:                                                                   


 

                                                                        

Printed Name

 

                                                                        

Title

 

                                                                        

Date

 
 
 

EXHIBIT A

SCOPE OF WORK 

The Scope of Work / Technical Specifications and Vendor Response will be added here when Agreement is finalized.



 

EXHIBIT B 

PRICING

Attachment A Pricing will be added here when Agreement is finalized.


 
 
 

EXHIBIT C

MESA STANDARD TERMS AND CONDITIONS

 

INDEPENDENT CONTRACTOR.  It is expressly understood that the relationship of Contractor to the City will be that of an independent contractor.  Contractor and all persons employed by Contractor, either directly or indirectly, are Contractor’s employees, not City employees.  Accordingly, Contractor and Contractor’s employees are not entitled to any benefits provided to City employees including, but not limited to, health benefits, enrollment in a retirement system, paid time off or other rights afforded City employees.  Contractor employees will not be regarded as City employees or agents for any purpose, including the payment of unemployment or workers’ compensation.  If any Contractor employees or subcontractors assert a claim for wages or other employment benefits against the City, Contractor will defend, indemnify and hold harmless the City from all such claims.

SUBCONTRACTING.  Contractor may not subcontract work under this Agreement without the express written permission of the City.  If Contractor has received authorization to subcontract work, it is agreed that all subcontractors performing work under the Agreement must comply with its provisions. Further, all agreements between Contractor and its subcontractors must provide that the terms and conditions of this Agreement be incorporated therein.

ASSIGNMENT.  This Agreement may not be assigned, either in whole or in part, without first receiving the City’s written consent.  Any attempted assignment, either in whole or in part, without such consent, will be null and void and in such event the City will have the right, at its option, to terminate the Agreement.  No granting of consent to any assignment will relieve Contractor from any of its obligations and liabilities under the Agreement.

SUCCESSORS AND ASSIGNS, BINDING EFFECT.  This Agreement will be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns.

NO THIRD-PARTY BENEFICIARIES.  This Agreement is intended for the exclusive benefit of the parties.  Nothing set forth in this Agreement is intended to create or will create any benefits, rights, or responsibilities in any third parties.

NON-EXCLUSIVITY.  The City, in its sole discretion, reserves the right to request the materials or services set forth herein from other sources when deemed necessary and appropriate.  No exclusive rights are encompassed through this Agreement.

AMENDMENTS.  There will be no oral changes to this Agreement.  This Agreement can only be modified in a writing signed by both parties.  No charge for extra work or material will be allowed unless approved in writing, in advance, by the City and Contractor.

TIME OF THE ESSENCE.  Time is of the essence to the performance of the parties’ obligations under this Agreement.

COMPLIANCE WITH APPLICABLE LAWS.

  • General.  Contractor must procure all permits/licenses and pay all charges and fees necessary and incidental to the lawful conduct of business. Contractor must stay fully informed of existing and future federal, state, and local laws, ordinances, and regulations that in any manner affect the fulfillment of this Agreement and must comply with the same at its own expense. Contractor bears full responsibility for training, safety, and providing the necessary equipment for all Contractor personnel to achieve compliance throughout the term of the Agreement. Upon request, Contractor will demonstrate to the City's satisfaction any programs, procedures, and other activities used to ensure compliance.  

  • Drug-Free Workplace.  Contractor is hereby advised that the City has adopted a policy establishing a drug-free workplace for itself and those doing business with the City to ensure the safety and health of all persons working on City contracts and projects.  Contractor will require a drug-free workplace for all Contractor personnel working under this Agreement.  Specifically, all Contractor personnel who are working under this Agreement must be notified in writing by Contractor that they are prohibited from the manufacture, distribution, dispensation, possession, or unlawful use of a controlled substance in the workplace.  Contractor agrees to prohibit the use of intoxicating substances by all Contractor personnel and will ensure that Contractor personnel do not use or possess illegal drugs while in the course of performing their duties.

  • Federal and State Immigration Laws.  Contractor agrees to comply with the Immigration Reform and Control Act of 1986 (IRCA) in performance under this Agreement and to permit the City and its agents to inspect applicable personnel records to verify such compliance as permitted by law.  Contractor will ensure and keep appropriate records to demonstrate that all Contractor personnel have a legal right to live and work in the United States.

i.    As applicable to Contractor, under the provisions of A.R.S. § 41-4401, Contractor hereby warrants to the City that Contractor and each of its subcontractors will comply with, and are contractually obligated to comply with, all federal immigration laws and regulations that relate to their employees and A.R.S. § 23-214(A) (hereinafter collectively the “Contractor Immigration Warranty”).

ii.    A breach of the Contractor Immigration Warranty will constitute a material breach of this Agreement and will subject Contractor to penalties up to and including termination of this Agreement at the sole discretion of the City.

iii.   To ensure Contractor and its subcontractors are complying with the Contractor Immigration Warranty, the City retains the legal right to conduct random verification of the employment records of any Contractor or subcontractor employee who works on this Agreement, including the inspection of the papers of such employees.  Contractor agrees to assist the City in regard to any random verification performed. 

iv.   Neither Contractor nor any subcontractor will be deemed to have materially breached the Contractor Immigration Warranty if Contractor or subcontractor establishes that it has complied with the employment verification provisions prescribed by Sections 274a and 274b of the Federal Immigration and Nationality Act and the E-Verify requirements prescribed by A.R.S. § 23-214(A).

  • Nondiscrimination.  Contractor understands and acknowledges that it is the policy of the City of Mesa to promote non-discrimination.  As such, Contractor represents and warrants that it does not discriminate against any employee or applicant for employment or person to whom it provides services because of race, color, national origin, age, disability, religion, sex, sexual orientation, gender identity, and expression, veterans’ status, marital status, or genetic information, and represents and warrants that it complies with all applicable federal, state, and local laws and executive orders regarding employment. In performance under this Agreement, Contractor and Contractor’s personnel will comply with applicable provisions of the following laws (as amended): Title VII of the U.S. Civil Rights Act of 1964, Section 504 of the Federal Rehabilitation Act, the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.), and any other applicable non-discrimination laws and rules.
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  • State Sponsors of Terrorism Prohibition.  Per A.R.S. § 35-392, Contractor must not be in violation of section 6(j) of the Federal Export Administration Act and subsequently prohibited by the State of Arizona from selling goods or services to the City.
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  • Israel Boycott Divestments.  In accordance with the requirements of A.R.S. § 35-393.01, if the Agreement requires Contractor to acquire or dispose of services, supplies, information technology or construction with a value of $100,000 or more, then, by entering into this Agreement, Contractor certifies that it is not currently engaged in, and agrees for the duration of the Agreement to not engage in, a boycott of goods and services from Israel.
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SALES/USE TAX, OTHER TAXES.

  • Contractor is responsible for the payment of all taxes including federal, state, and local taxes related to or arising out of Contractor’s services under this Agreement including, by way of illustration but not limitation, federal and state income tax, Social Security tax, unemployment insurance taxes, and any other taxes or business license fees, as required.  If any taxing authority should deem Contractor or Contractor employees an employee of the City, or should otherwise claim the City is liable for the payment of taxes that are Contractor’s responsibility under this Agreement, then Contractor will indemnify the City for any tax liability, interest, and penalties imposed upon the City. 

  • The City is exempt from paying certain federal excise taxes and will furnish an exemption certificate upon request. The City is not exempt from state and local sales/use taxes.

AMOUNTS DUE THE CITY.  Contractor must be current and remain current in all obligations, whether or not related to the Agreement, due to the City during the performance of services under the Agreement.  Payments to Contractor may be offset by any delinquent amounts due to the City or fees and charges owed to the City.

PUBLIC RECORDS.  Contractor acknowledges that the City is a public body, subject to Arizona’s public records laws (A.R.S. § 39-121 et seq.), and any documents related to this Agreement may be subject to disclosure pursuant to state law in response to a public records request or to subpoena or other judicial processes.

  • If Contractor believes documents related to the Agreement contain trade secrets or other proprietary data, Contractor must have notified the City pursuant to Mesa Procurement Rules Section 2.1 or notified the City with a notification statement specifically identifying the trade secrets or other proprietary data that Contractor believes should remain confidential.



AUDITS AND RECORDS.  Contractor must preserve the records related to this Agreement for six (6) years after completion of the Agreement.  The City or its authorized agent reserves the right to inspect any records related to the performance of work specified herein.  In addition, the City may inspect all payroll, billing, or other relevant records kept by Contractor in relation to the Agreement.  Contractor will permit such inspections and audits during normal business hours and upon reasonable notice by the City.  The audit of records may occur at Contractor’s place of business or City offices, as determined by the City.

BACKGROUND CHECK.  In accordance with the City’s current background check policies, the City may conduct criminal, driver history, and all other requested background checks of Contractor personnel who would perform services under the Agreement who will have access to the City’s information, data, or facilities.  Any officer, employee, or agent that fails the background check must be replaced immediately for any reasonable cause not prohibited by law.

SECURITY CLEARANCE AND REMOVAL OF CONTRACTOR PERSONNEL.    The City will have final authority, based on security reasons: (i) to determine when security clearance of Contractor personnel is required; (ii) to determine the nature of the security clearance, up to and including fingerprinting Contractor personnel; and (iii) to determine whether any individual or entity may provide services under this Agreement.  If the City objects to any Contractor personnel for any reasonable cause not prohibited by law, then Contractor will, upon notice from the City, remove any such individual from the performance of services under this Agreement.

DEFAULT.

A party will be in default of the Agreement if that party:

i.    Is or becomes insolvent or is a party to any voluntary bankruptcy or receivership proceeding, makes an assignment for a creditor, or there is any similar action that affects Contractor’s capability to perform under the Agreement;

ii.    Is the subject of a petition for involuntary bankruptcy not removed within sixty (60) calendar days;

iii.   Conducts business in an unethical manner as set forth in the City Procurement Rules Article 7 or an illegal manner; or

iv.   Fails to carry out any term, promise, or condition of the Agreement.

            b.   Contractor will be in default of this Agreement if Contractor is debarred from participating in City procurements and Solicitations in accordance with Article 6 of the City’s Procurement Rules.

Notice and Opportunity to Cure.  In the event a party is in default then the other party will provide written notice to the defaulting party of the default.  The defaulting party will have thirty (30) days from receipt of the notice to cure the default, unless the default is of a nature that it is reasonably anticipated to affect the health, safety, or welfare of the public and, in such an event, the non-defaulting party may require a minimum seven (7) days to cure the default from the date of receipt of the notice; the cure period may be extended by mutual agreement of the parties, but no cure period may exceed ninety (90) days. A default notice will be deemed to be sufficient if it is reasonably calculated to provide notice of the nature and extent of such default.  Failure of the non-defaulting party to provide notice of the default does not waive any rights under the Agreement.  Failure of the defaulting party to cure the default will entitle the non-defaulting party to the election of remedies specific to the party as set forth in section 17 below. 

Anticipatory Repudiation.  Whenever the City in good faith has reason to question Contractor’s intent or ability to perform, the City may demand that Contractor give written assurance of its intent and ability to perform. In the event, demand is made, and no written assurance is given within ten (10) calendar days, the City may treat this failure as an anticipatory repudiation of the Agreement entitling the City to terminate the Agreement in accordance with section 17(a) below.


REMEDIES.  The remedies set forth in this Agreement are not exclusive.  Election of one remedy will not preclude the use of other remedies.  In the event of default:

The non-defaulting party may terminate the Agreement, and the termination will be effective immediately or at such other date as specified by the terminating party.

The City may purchase the services or materials required under the Agreement from the open market, complete the required work itself, or have it completed at the expense of Contractor. If the cost of obtaining substitute services exceeds the contract price in the Agreement, the City may recover the excess cost by: (i) requiring immediate reimbursement by the Contractor to the City; (ii) deduction from an unpaid balance due to Contractor; (iii) collection against the proposal and performance security, if any; (iv) collection against liquidated damages (if applicable); or (v) a combination of the aforementioned remedies or other remedies as permitted by law.  Costs in this Subsection (b) include any and all fees, and expenses incurred in obtaining substitute services and expended in obtaining reimbursement including, but not limited to, administrative expenses, attorneys’ fees, and costs.

The non-defaulting party will have all other rights granted under this Agreement and all rights at law or in equity that may be available to it.

Neither party will be liable for incidental, special, or consequential damages.

The City may draw and/or collect any Performance Security pursuant to the Agreement.

CONTINUATION DURING DISPUTES.  Contractor agrees that during any dispute between the parties, Contractor will continue to perform its obligations until the dispute is settled, instructed to cease performance by the City, enjoined or prohibited by judicial action, or otherwise required or obligated to cease performance by other provisions in this Agreement.

TERMINATION FOR CONVENIENCE.  The City reserves the right to terminate this Agreement, in part or in whole, for its sole convenience upon thirty (30) calendar days written notice.  Contractor acknowledges that, as with any termination permitted under this Agreement, in the event of a termination for convenience, Contractor is only entitled to payment in accordance with section 22 (Payment to Contractor Upon Termination); Contractor will not be entitled to any anticipated lost profits had the Agreement been performed to completion. 

TERMINATION FOR CONFLICT OF INTEREST (A.R.S. § 38-511).  Pursuant to A.R.S. § 38-511, the City may cancel this Agreement within three (3) years after its execution, without penalty or further obligation, if any person significantly involved in initiating, securing, drafting, or creating the Agreement for the City becomes an employee or agent of Contractor.

TERMINATION FOR NON-APPROPRIATION AND MODIFICATION FOR BUDGETARY CONSTRAINTS.  The City is a governmental agency that relies upon the appropriation of funds by its governing body to satisfy its obligations. If the City reasonably determines it does not have funds to meet its obligations under this Agreement, the City will have the right to terminate the Agreement without penalty on the last day of the fiscal period for which funds were legally available.  In the event of such termination, the City agrees to provide written notice of its intent to terminate thirty (30) calendar days before the stated termination date.

PAYMENT TO CONTRACTOR UPON TERMINATION.  Upon termination of this Agreement for any reason, Contractor will be entitled only to payments authorized under the Agreement for those services performed or materials provided in accordance with the Agreement up to the date of termination, and any authorized expenses already incurred up to such date of termination.  The City will make final payment within thirty (30) calendar days after the City has both completed its appraisal of the materials and services provided and received Contractor’s properly prepared final invoice.

NON-WAIVER OF RIGHTS.  There will be no waiver of any provision of this Agreement unless approved in writing and signed by the waiving party.  Failure or delay to exercise any rights or remedies provided herein or by law or in equity, or the acceptance of, or payment for, any services hereunder, will not release the other party of any of the warranties or other obligations of the Agreement and will not be deemed a waiver of any such rights or remedies.

INDEMNIFICATION; LIABILITY.

To the fullest extent permitted by law, Contractor agrees to defend, indemnify and hold harmless the City, its elected officials, agents, representatives and employees (collectively, including the City, “City Personnel”) from and against any and all liabilities, demands, claims, suits, penalties, obligations, losses, damages, causes of action, fines or judgments of any kind, including costs, attorneys’, witnesses’ and expert witnesses’ fees, and expenses incident thereto (all of the foregoing, collectively “Claims”) imposed upon or asserted against City Personnel by a third party relating to, arising out of or resulting from, in whole or in part: (i) services or materials provided under this Agreement by Contractor or its officers’, agents’, or employees’ (collectively, including Contractor, “Contractor Personnel”): (ii) negligent acts, errors, mistakes or omissions of Contractor Personnel; or (iii) failure of Contractor Personnel to comply with or fulfill the obligations established by this Agreement.  Contractor’s indemnification, duty to defend and hold harmless City Personnel in this Subsection (a) will apply to all Claims against City Personnel except Claims arising solely from the negligence or intentional acts of City Personnel. These indemnity provisions shall survive the expiration or termination of the Agreement.

The City assumes no liability for the actions of Contractor Personnel and will not indemnify or hold Contractor Personnel or any third party harmless for Claims relating to, arising out of or resulting from, in whole or in part, this Agreement or use of Contractor Personnel-provided services or materials.

WARRANTY.  Contractor warrants that the services and materials will conform to the requirements of the Agreement. Additionally, Contractor warrants that all services will be performed in a good, workmanlike and professional manner.  The City’s acceptance of services or materials provided by Contractor will not relieve Contractor from its obligations under this warranty.  If the City reasonably determines any materials or services are of a substandard or unsatisfactory manner, Contractor, at no additional charge to the City, will provide materials or redo such services until in accordance with this Agreement and to the City’s reasonable satisfaction.

Unless otherwise agreed, Contractor warrants that materials will be new, unused, of most current manufacture and not discontinued, will be free of defects in materials and workmanship, will be provided in accordance with manufacturer's standard warranty for at least one (1) year unless otherwise specified, and will perform in accordance with manufacturer's published specifications.

THE CITY’S RIGHT TO RECOVER AGAINST THIRD PARTIES.  Contractor will do nothing to prejudice the City’s right to recover against third parties for any loss, destruction, or damage to City property and will, at the City’s request and expense, furnish to the City reasonable assistance and cooperation in obtaining recovery, including assistance in the prosecution or defense of suit and the execution of instruments of assignment in favor of the City.

NO GUARANTEE OF WORK.  Contractor acknowledges and agrees: (i) it is not entitled to deliver any specific amount of materials or services, or any materials or services at all, under this Agreement; and (ii) the materials or services will be requested by the City on an as needed basis, at the sole discretion of the City.  Any document referencing quantities or performance frequencies represents the City's best estimate of current requirements, but will not bind the City to purchase, accept, or pay for materials or services which exceed its actual needs.

OWNERSHIP.  All deliverables, services, and information provided by Contractor or the City pursuant to this Agreement (whether electronically or manually generated) including without limitation, reports, test plans, and survey results, graphics, and technical tables, originally prepared in the performance of this Agreement, are the property of the City and will not be used or released by Contractor or any other person except with prior written permission by the City.

USE OF NAME.  Contractor will not use the name of the City of Mesa in any advertising or publicity without obtaining the prior written consent of the City.

PROHIBITED ACTS.  Contractor acknowledges the applicability of A.R.S. § 38-504 which prohibits a person who, within the preceding twelve (12) months, is or was a public officer or employee of the City from representing another person (including Contractor) before the City on any matter for which the officer or employee was directly concerned and personally participated in during their service or employment by a substantial and material exercise of administrative discretion.  Further, while employed by the City and for two (2) years thereafter, public officers or employees are prohibited from disclosing or using, without appropriate authorization, any confidential information acquired by such person in the course of his or her official duties at the City.

FOB DESTINATION FREIGHT PREPAID AND ALLOWED.  All deliveries will be FOB destination freight prepaid and allowed unless otherwise agreed. 

RISK OF LOSS.  Contractor agrees to bear all risk of loss, injury, or destruction of Contractor’s goods or equipment incidental to Contractor providing the services and materials under this Agreement, and such loss, injury, or destruction will not release Contractor from any obligation hereunder.

SAFEGUARDING CITY PROPERTY.  Contractor will be responsible for any damage or loss to City's real or personal property when such property is the responsibility of or in the custody of Contractor or its personnel.

WARRANTY OF RIGHTS.  Contractor warrants it has title to, or the right to allow the City to use, the materials and services being provided, and that the City may use same without suit, trouble, or hindrance from Contractor or third parties.

PROPRIETARY RIGHTS INDEMNIFICATION.  Without limiting the warranty in section 34, Contractor will without limitation and at its expense defend the City against all claims asserted by any person that anything provided by Contractor infringes a patent, copyright, trade secret, or other intellectual property right and must, without limitation, pay the costs, damages and attorneys' fees awarded against the City in any such action, or pay any settlement of such action or claim. Each party agrees to notify the other promptly of any matters to which this provision may apply and to cooperate with each other in connection with such defense or settlement. If a preliminary or final judgment is obtained against the City’s use or operation of the items provided by Contractor hereunder or any part thereof by reason of any alleged infringement, Contractor will, at its expense and without limitation, either: (a) modify the item so that it becomes non-infringing; (b) procure for the City the right to continue to use the item; (c) substitute for the infringing item other items (s) having at least equivalent capability; or (d) refund to the City an amount equal to the price paid, less reasonable usage, from the time of installation acceptance through cessation of use, which amount will be calculated on a useful life not less than five (5) years, plus any additional costs the City may incur to acquire substitute supplies or services.

CONTRACT ADMINISTRATION.  The contract will be administered by the applicable Purchasing Officer and/or an authorized representative from the using department (collectively “Contractor Administrators”); all questions regarding the Agreement will be referred to the Contract Administrators.  If authorized by the Contract Administrators, supplements or amendments may be written to the Agreement for the addition or deletion of services.  Payment will be negotiated and determined by the Contract Administrators.

FORCE MAJEURE.  Failure by either party to perform its duties and obligations will be excused by unforeseeable circumstances beyond its reasonable control, including acts of nature, acts of the public enemy, riots, legislation, and governmental regulation except as otherwise described herein. The party whose performance is so affected will, within five (5) calendar days of the unforeseeable circumstance, notify the other party of all pertinent facts and identify the force majeure event. The party whose performance is so affected must also take all reasonable steps, promptly and diligently, to prevent such causes if it is feasible to do so or to minimize or eliminate the effect thereof. The delivery or performance date will be extended for a period equal to the time lost by reason of delay, plus such additional time as may be reasonably necessary to overcome the effect of the delay, provided, however, under no circumstances will delay caused by a force majeure extend beyond one hundred-twenty (120) calendar days from the scheduled delivery or completion date of a task unless agreed upon by the parties. Force Majeure shall not include (i) late delivery of equipment or materials caused by congestion at a manufacturer’s plant, shipping service, or elsewhere; (ii) oversold or irregular market conditions, inefficiencies, commodity prices, exchange rates, general economic conditions, or similar occurrences; (iii) facility fires or explosions; (iv) changes in wage or other labor laws; (v) high ambient heat conditions at a facility; (vi) mechanical failure of equipment; (vii) any failure in obtaining appropriate governmental approvals.

COOPERATIVE USE OF CONTRACT.  The City has entered into various cooperative purchasing agreements with other Arizona government agencies, including the Strategic Alliance for Volume Expenditures (SAVE) cooperative. Under the SAVE Cooperative Purchasing Agreement, any contract may be extended for use by other municipalities, school districts, and government agencies in the State of Arizona with the approval of Contractor. Any such usage by other entities must be in accordance with the statutes, codes, ordinances, charter, and/or procurement rules and regulations of the respective government agency.

The City currently holds or may enter into Intergovernmental Governmental Agreements (IGA) with numerous governmental entities. These agreements allow the entities, with the approval of Contractor, to purchase their requirements under the terms and conditions of this Agreement.

A contractor, subcontractor or vendor, or any employee of a contractor, subcontractor or vendor who is contracted to provide services on a regular basis at an individual school shall obtain a valid fingerprint clearance card pursuant to title 41, chapter 12, article 3.1. A school district governing board shall adopt policies to exempt a person from the requirements of this subsection if the person's normal job duties are not likely to result in independent access to or unsupervised contact with pupils. A school district, its governing board members, its school council members, and its employees are exempt from civil liability for the consequences of adoption and implementation of policies and procedures pursuant to this subsection unless the school district, its governing board members, its school council members, or its employees are guilty of gross negligence or intentional misconduct.

Additionally, Contractor will comply with the governing body’s fingerprinting policy of each individual school district and public entity. Contractor, subcontractors, vendors, and their employees will not provide services on school district properties until authorized by the school district.

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

FUEL CHARGES AND PRICE INCREASES.  No fuel surcharges will be accepted.  No price increases will be accepted without proper request by Contractor and response by the City’s Purchasing Division. 

NOTICES.  All notices to be given pursuant to this Agreement must be addressed and delivered to the parties at their respective addresses as described in this Agreement.  Notices may be sent via personally delivery, certified or registered mail with postage prepaid, overnight courier, or facsimile.  If provided by personal delivery, the receipt will be deemed effective upon delivery to the addressee.  If sent via certified or registered mail, the receipt will be deemed effective three (3) calendar days after being deposited in the United States mail.  If sent via overnight courier, or facsimile, the receipt will be deemed effective two (2) calendar days after the sending thereof.

GOVERNING LAW, FORUM.  This Agreement is governed by the laws of the State of Arizona. The exclusive forum selected for any proceeding or suit, in law or equity, arising from or incident to this Agreement will be Maricopa County, Arizona.

INTEGRATION CLAUSE.  This Agreement, including all attachments and exhibits hereto, supersedes all prior oral or written agreements, if any, between the parties and constitutes the entire agreement between the parties with respect to the work to be performed.

PROVISIONS REQUIRED BY LAW.  Any provision required by law to be in this Agreement is a part of this Agreement as if fully stated herein.

SEVERABILITY.  If any provision of this Agreement is declared void or unenforceable, such provision will be severed from this Agreement, which will otherwise remain in full force and effect.  The parties will negotiate diligently in good faith for such amendment(s) of this Agreement as may be necessary to achieve the original intent of this Agreement, notwithstanding such invalidity or unenforceability.

SURVIVING PROVISIONS.  Notwithstanding any completion, termination, or other expiration of this Agreement, all provisions which, by the terms of reasonable interpretation thereof, set forth rights and obligations that extend beyond completion, termination, or other expiration of this Agreement, will survive and remain in full force and effect.  Except as specifically provided in this Agreement, completion, termination, or other expiration of this Agreement will not release any Party from any liability or obligation arising before the date of termination.

A.R.S. SECTIONS 1-501 and 1-502.  Pursuant to A.R.S §§ 1-501 and 1-502, any person who applies to the City for a local public benefit (the definition of which includes a grant, contract, or loan) must demonstrate his or her lawful presence in the United States.  As this Agreement is deemed a local public benefit, if Contractor is an individual (natural) person or sole proprietorship, Contractor agrees to sign and submit the necessary documentation to prove compliance with the statutes if applicable.

AUTHORITY.  Each party hereby warrants and represents that it has full power and authority to enter into and perform this Agreement and that the person signing on behalf of each is properly authorized and empowered to enter into the Agreement.  Each party further acknowledges that it has read this Agreement, understands it, and agrees to be bound by it.

PCI DSS COMPLIANCE.    In the event any Contractor engages in payment card transactions as a part of the services provided to the City, Contractor shall comply with the Payment Card Industry Data Security Standards (“PCI DSS”) and any amendments or restatements of the PCI DSS during the Term of this Agreement. Contractor accepts responsibility for the security of the City’s and/or any customer’s credit card data in its possession, even if all or a portion of the services to the City are subcontracted to third parties.

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