R24-159 1 RESOLUTION NO. R24-159
3 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOYNTON
4 BEACH, FLORIDA, APPROVING A PIGGYBACK AGREEMENT WITH THE
5 SUTPHEN CORPORATION TO ACQUIRE THREE (3) SUTPHEN HEAVY DUTY
6 75' MID-MOUNT AERIAL LADDER (SL 75) COMPLETE FOR AN AMOUNT OF
7 $4,920,000, PLUS A CONTINGENCY OF TWENTY-TWO PERCENT (22%);
8 PROVIDING AN EFFECTIVE DATE; AND FOR ALL OTHER PURPOSES.
9
10 WHEREAS, Sourcewell, a State of Minnesota local government unit created under the laws
11 of the State of Minnesota that offers cooperative procurement solutions to government entities,
12 competitively procured Firefighting Apparatus and Fire Service Vehicles and on February 8, 2022,
13 executed RFP Contract 113021, Firefighting Apparatus and Fire Service Vehicles (the "Sourcewell
14 Agreement"), with The Sutphen Corporation ("Vendor"), which has a four (4) year term and one
15 (1) additional one-year renewal option; and
16 WHEREAS, the City desires to obtain three (3) Sutphen Heavy Duty 75' Mid-Mount Aerial
17 Ladder(SL 75) Complete based on the Vendor's proposal dated April 19, 2024;the City may utilize
18 this Piggyback Agreement to obtain other products and services upon amendment to this
19 Piggyback Agreement; and
20 WHEREAS, the City's Purchasing Policy Section X — Alternatives to Formal Sealed Bids,
21 provides authority for the City to acquire or contract for services without utilizing a sealed
22 competitive method or the written quotations methods where the desired services are the subject
23 of an agreement that utilizes another government entity's contract, provided that the contract
24 was awarded based strictly on competitive bidding; and
25 WHEREAS, in order to acquire three (3) Sutphen Heavy Duty 75' Mid-Mount Aerial Ladder
26 (SL 75) Complete, the City's Fire Department is requesting the City enter into a Piggyback
27 Agreement with the Vendor; and
28 WHEREAS, the City and Vendor have agreed to allow the City to piggyback the
29 Sourcewell Agreement; and
30 WHEREAS, the City Commission, upon recommendation of staff, has deemed it to be in
31 the best interests of the citizens and residents of the City to approve a Piggyback Agreement with
32 The Sutphen Corporation to acquire three (3) Sutphen Heavy Duty 75' Mid-Mount Aerial Ladder
33 (SL 75) Complete for an amount of $4,920,000, plus a contingency of twenty-two percent (22%).
34
35 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON
36 BEACH, FLORIDA, THAT:
37 SECTION 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as
38 being true and correct and are hereby made a specific part of this Resolution upon adoption.
39 SECTION 2. The City Commission of the City of Boynton Beach, Florida, does hereby
40 approve a Piggyback Agreement, between The Sutphen Corporation and the City to acquire three
41 (3) Sutphen Heavy Duty 75' Mid-Mount Aerial Ladder (SL 75) Complete for an amount of
42 $4,920,000, plus a contingency of twenty-two percent(22%) (the "Piggyback Agreement"), in form
43 and substance similar to that attached as "Exhibit A."
44 SECTION 3. The City Commission of the City of Boynton Beach, Florida, hereby
45 authorizes the Mayor to execute the Piggyback Agreement and such other related documents as
46 may be necessary to accomplish the purpose of this Resolution.
47 SECTION 4. One fully-executed original of the Piggyback Agreement shall be retained
48 by the City Clerk as a public record of the City. A copy of the fully-executed Piggyback Agreement
49 shall be provided to Kori Grant and Michael Dauta to forward to the Vendor.
50 SECTION 5. This Resolution shall take effect in accordance with law.
51
52 [signatures on following page]
53
54
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56
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59
60 PASSED AND ADOPTED this 16th day of July 2024.
61 CITY OF BOYNTON BEACH, FLORIDA
62 YES NO
63 Mayor-Ty Penserga MiseitA-
64
65 Vice Mayor-Aimee Kelley ✓
66
67 Commissioner-Angela Cruz
68
69 Commissioner-Woodrow L. Hay
70
71 Commissioner-Thomas Turkin
72
73 VOTE (1-0
74 ATT S
75 t o• _
77 Maylee Pe i 's, MPA, ' C T ,All'
78 CityCle k
M a •
79 80 ,1 :llv-0:04YAii..1:61,c,..,.pis
' 1A.PROVED AS TO FORM:
81 (Corporate Seal) ; '�' •
83 s. '•.1920 PORA T ep•• t %&4ilr Q/rf`'
84 1,`� 'c,•••••••••• Shawna G. Lamb
�� �RIDA i
85 City Attorney
(
qr.
PIGGYBACK AGREEMENT BETWEEN THE CITY OF BOYNTON
BEACH AND THE SUTPHEN CORPORATION
This Piggyback Agreement is made as of this I6 \day of July 2024, by and between The
Sutphen Corporation, with a principal address of 6450 Eiterman Road, Dublin, OH 43016,
hereinafter referred to as "Vendor," and the City of Boynton Beach, a municipal corporation
organized and existing under the laws of Florida, with a business address of 100 East Ocean
Avenue, Boynton Beach, Florida 33435,hereinafter referred to as "City."
RECITALS
WHEREAS,the Sourcewell,a State of Minnesota local government unit created under the
laws of the State of Minnesota that offers cooperative procurement solutions to government
entities,competitively procured Firefighting Apparatus and Fire Service Vehicles and on February
8, 2022, executed RFP Contract 113021, Firefighting Apparatus and Fire Service Vehicles (the
"Master Agreement"), which has a four (4) year term and one (1) additional one-year renewal
option.
WHEREAS, the City desires to obtain three (3) Sutphen Heavy Duty 75' Mid-Mount
Aerial Ladder(SL 75)Complete based on the Vendor's proposal dated July 10,2024;the City may
utilize this Agreement to obtain other products and services upon amendment to this Agreement;
and
WHEREAS,the City's Purchasing Policy Section X—Alternatives to Formal Sealed Bids,
provides authority for the City to acquire or contract for services without utilizing a sealed
competitive method or the written quotations methods where the desired services are the subject
of an agreement that utilizes another government entity's contract, provided that the contract was
awarded based strictly on competitive bidding; and
WHEREAS, in order to acquire three (3) Sutphen Heavy Duty 75' Mid-Mount Aerial
Ladder(SL 75)Complete,the City's Fire Department is requesting the City enter into a Piggyback
Agreement with the Vendor; and
WHEREAS,the City and Vendor have agreed to allow the City to piggyback the Master
Agreement, a copy of which is attached as Exhibit"A.;"
NOW,THEREFORE, in consideration of the mutual covenants contained herein,and for
other valuable consideration received, the receipt, and sufficiency of which are hereby
acknowledged, the parties agree as follows:
Piggyback Contract-Sutphen 1
AGREEMENT
1. The foregoing recitals are true and correct and are hereby incorporated into this Agreement.
2. TERM: The term of this Agreement commences on August 6, 2024, and will remain in
effect until February 10, 2026, with one (1) one-year renewal option ("Term"). The City
Manager is authorized to execute amendments renewing the Agreement on behalf of the
City. The initial term and any subsequent renewals of this Agreement are subject to the
renewal or extension of the Master Agreement. If the Master Agreement expires or is
terminated during the Term, this Agreement shall terminate no later than six months after
such expiration or termination of the Master Agreement.
3. CONTRACT TERMS: The Vendor and City agree to Terms and Conditions of Sutphen
Proposal Dated July 10,2024,a copy of which is attached hereto as Exhibit B,on the same
terms and in the same manner as set forth in the Master Agreement, a copy of which is
attached hereto as Exhibit A, except as otherwise provided herein. All recitals,
representations, and warranties of Vendor made by Vendor in the Master Agreement are
restated as if set forth fully herein,made for the benefit of the City,and incorporated herein.
The City shall compensate the Vendor pursuant to the rates set forth in the Master
Agreement. For the products and services described in Exhibit B, the City shall pay the
Vendor an amount not to exceed $5,039,175. City may order additional products and
services pursuant to the prices set forth in the Master Agreement upon a duly executed
amendment to this Agreement.
4. NOTICES: All Notices to the City shall be in writing by certified mail return receipt
requested, or customarily used overnight transmission with proof of delivery, sent to:
City: Daniel Dugger, City Manager
City of Boynton Beach
P.O. Box 310
Boynton Beach,Florida 33425
Telephone: (561) 742-6010/Facsimile: (561) 742-6090
Copy: Shawna G. Lamb,City Attorney
City of Boynton Beach
P.O. Box 310
Boynton Beach,Florida 33425
Telephone: (561) 742-6010/Facsimile: (561) 742-6090
5. INVOICES AND PAYMENT: Invoices must identify the PO number and should be
mailed to:
Boynton Beach Finance
Attn: Accounts Payable
100 E. Ocean Avenue
Boynton Beach, FL 33435
Piggyback Contract-Sutphen 2
Invoices shall show the nature of the service and dates(s) of service. Invoices based on
hourly rates shall show the actual hours worked,person performing services, nature of the
service,hourly rate,and dates(s)of service. Invoices may be submitted no more frequently
than monthly. However, all services rendered prior to September 30th of any given year
are required to be invoiced by September 30th of that year. Vendor shall provide W-9 with
first invoice.
The fee shall be paid based on receipt of a proper invoice in accordance with the invoice
schedule indicated above. Payment will be made within 14 days after the vehicle is
delivered to the agreed upon South Florida dealership and City's receipt of a proper invoice
in accordance with the Local Government Prompt Payment Act, Section 218.70, et al.,
Florida Statutes. Any loose equipment, shelving, and graphics shall be completed by the
dealership (South Florida Emergency Vehicle). Should payment be delayed, Sutphen
reserves the right to charge interest at the rate of one and one-half percent (1.5%) per
month, or the maximum permitted by Florida law, beginning on the day after payment is
due. No payment made under this Agreement shall be conclusive evidence of the
performance of this Agreement by Vendor, either wholly or in part, and no payment shall
be construed to be an acceptance of or to relieve Vendor of liability for the defective, faulty
or incomplete rendition of the services.
6. TAX EXEMPT: Prices applicable to City do not include applicable state and local sales,
use,and related taxes.The City is exempt from state and local sales and use taxes and shall
not be invoiced for the same. Upon request, City will provide Vendor with proof of tax-
exempt status.
7. SOVEREIGN IMMUNITY: Nothing contained in this Agreement nor contained herein
shall be considered nor construed to waive City's rights and immunities under the common
law or section 768.28,Florida Statutes, as may be amended.
8. ATTORNEY'S FEES: In the event that either Party brings suit for enforcement of the
Agreement, each Party shall bear its own attorney's fees and court costs.
9. PUBLIC RECORDS: Sealed documents received by the City in response to an invitation
are exempt from public records disclosure until thirty (30) days after the opening of the
Bid unless the City announces intent to award sooner, in accordance with Florida Statutes
119.07.
The City is a public agency subject to Chapter 119, Florida Statutes. The Vendor shall
comply with Florida's Public Records Law. Specifically,the Vendor shall:
A. Keep and maintain public records required by the City to perform the service;
B. Upon request from the City's custodian of public records, provide the City with a
copy of the requested records or allow the records to be inspected or copied within a
reasonable time at a cost that does not exceed the cost provided in chapter 119, Fla.
Stat. or as otherwise provided by law;
C. Ensure that public records that are exempt or that are confidential and exempt from
public record disclosure requirements are not disclosed except as authorized by law
Piggyback Contract-Sutphen 3
for the duration of the contract term and, following completion of the contract,
Vendor shall destroy all copies of such confidential and exempt records remaining in
its possession once the Vendor transfers the records in its possession to the City;and
D. Upon completion of the contract, Vendor shall transfer to the City, at no cost to the
City, all public records in Vendor's possession All records stored electronically by
Vendor must be provided to the City,upon request from the City's custodian of public
records, in a format that is compatible with the information technology systems of
the City.
E. IF THE VENDOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO
THE VENDOR'S DUTY TO PROVIDE PUBLIC RECORDS
RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN
OF PUBLIC RECORDS:
CITY CLERK OFFICE
100 E. OCEAN AVENUE
BOYNTON BEACH, FLORIDA, 33435
561-742-6060
CityClerkabbfl.us
10. SCRUTINIZED COMPANIES - 287.135 AND 215.473: By execution of this
Agreement, Vendor certifies that Vendor is not participating in a boycott of Israel. The
Vendor further certifies that Vendor is not on the Scrutinized Companies that Boycott Israel
list, not on the Scrutinized Companies with Activities in Sudan List, and not on the
Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, or has
Vendor been engaged in business operations in Syria. Subject to limited exceptions
provided in state law,the City will not contract for the provision of goods or services with
any scrutinized company referred to above. Submitting a false certification shall be deemed
a material breach of contract. The City shall provide notice, in writing, to the Vendor of
the City's determination concerning the false certification. The Vendor shall have five(5)
days from receipt of notice to refute the false certification allegation. If such false
certification is discovered during the active contract term, the Vendor shall have ninety
(90) days following receipt of the notice to respond in writing and demonstrate that the
determination of false certification was made in error. If the Vendor does not demonstrate
that the City's determination of false certification was made in error, then the City shall
have the right to terminate the contract and seek civil remedies pursuant to Section 287.135,
Florida Statutes, as amended from time to time.
11. E-VERIFY: Vendor shall comply with Section 448.095, Fla. Stat., "Employment
Eligibility," including the registration and use of the E-Verify system to verify the work
authorization status of employees. Failure to comply with Section 448.095, Fla. Stat. shall
result in termination of this Agreement. Any challenge to termination under this provision
must be filed in the Circuit Court no later than 20 calendar days after the date of
termination. If this Agreement is terminated for a violation of the statute by Vendor,
Vendor may not be awarded a public contract for a period of one(1)year after the date of
Piggyback Contract-Sutphen 4
termination.
12. DISPUTES: Any disputes that arise between the parties with respect to the performance
of this Agreement, which cannot be resolved through negotiations, shall be submitted to a
court of competent jurisdiction exclusively in Palm Beach County, Florida. This
Agreement shall be construed under Florida Law.
13. EXECUTION OF THE AGREEMENT:This Agreement will take effect once signed by
both parties. This Agreement may be signed by the parties in counterparts, which together
shall constitute one and the same agreement among the parties. A facsimile signature shall
constitute an original signature for all purposes. Each person signing this Agreement on
behalf of either Party individually warrants that he or she has full legal power to execute
the Addendum on behalf of the Party for whom he or she is signing and to bind and obligate
such Party with respect to all provisions contained in this Agreement
14. INDEMNIFICATION: Vendor shall indemnify and hold harmless the City, its elected
and appointed officers, agents, assigns and employees, consultants, separate Vendors, any
of their subcontractors, or sub-subcontractors,from and against claims,demands,or causes
of action whatsoever, and the resulting losses, damages, costs, and expenses, including but
not limited to attorneys' fees, including paralegal expenses, liabilities, damages, orders,
judgments, or decrees, sustained by the City arising out of or resulting from (A) Vendor's
performance or breach of Agreement, (B) acts or omissions, negligence, recklessness, or
intentional wrongful conduct by Vendor's, its agents, employees, subcontractors,
participants, and volunteers, and (C) Vendor's failure to take out and maintain insurance
as required under this Agreement. Vendor's shall pay all claims and losses in connection
therewith and shall investigate and defend all claims, suits,or actions of any kind or nature
in the name of the City, where applicable, including appellate proceedings, and shall pay
all costs,judgments, and attorneys' fees which may issue thereon. The obligations of this
section shall survive indefinitely regardless of termination of the Agreement.
15. INSURANCE: At the time of execution of this Agreement, Vendor shall provide the City
with a copy of its Certificate of Insurance reflecting the insurance coverage required by the
Master Agreement. The Certificate of Insurance shall name the City of Boynton Beach,
and its officers, employees and agents as an additional insured.
16. LIMITATION OF LIABILITY: Notwithstanding any provision of the Agreement to
which it is applicable, City shall not be liable or responsible to Vendor beyond the amount
remaining due to Vendor under the Agreement,regardless of whether said liability be based
in tort, contract, indemnity or otherwise; and in no event shall City be liable to Vendor for
punitive or exemplary damages or for lost profits or consequential damages.
17. INDEPENDENT CONTRACTOR: The Agreement does not create an
employee/employer relationship between the Parties. It is the intent of the Parties that
Vendor is an independent contractor pursuant to the Agreement and shall not be considered
the City's employee for any purpose.
18. COMPLIANCE WITH LAWS: Vendor hereby warrants and agrees that at all times
material to the Agreement, Vendor shall perform its obligations in compliance with all
applicable federal, state, and local laws, rules, and regulations, including section 501.171,
Piggyback Contract-Sutphen 5
Florida Statutes.Non-compliance may constitute a material breach of the Agreement.
19.ASSIGNMENT: In the event this Agreement and any interests granted herein shall be
assigned, transferred, or otherwise encumbered, under any circumstances by Vendor,
Vendor must gain prior written consent from City thirty (30) business days before such
transfer. For purposes of this Agreement, any change of ownership of Vendor shall
constitute an assignment that requires City's approval. Notwithstanding the foregoing,
Vendor may, without City's consent,assign this Agreement in whole or in part as part of a
corporate reorganization, consolidation, merger, or sale of substantially all of its assets
related to this Agreement. Vendor shall provide City written notice of any such corporate
reorganization,consolidation,merger,or sale of substantially all of its assets related to this
Agreement within thirty (30) calendar days of such event.
20.AGREEMENT SUBJECT TO FUNDING:The Agreement shall remain in full force and
effect only as long as the expenditures provided for in the Agreement have been
appropriated by the City Commission of the City of Boynton Beach in the annual budget
for each fiscal year of this Agreement, and is subject to termination based on lack of
funding. Early termination by City due to loss of funding shall not obligate Vendor to
refund any prepaid fees.
21. ENTIRE AGREEMENT.The Agreement,including the Master Agreement,sets forth the
entire Agreement between the City and the Vendor with respect to the subject matter of
this Agreement. This Agreement supersedes all prior and contemporaneous negotiations,
understandings,and agreements,written or oral,between the parties. This Agreement may
not be modified except by the parties' mutual agreement set forth in writing and signed by
the parties.
22. SEVERABILITY.If any provision of this Agreement or application thereof to any person
or situation shall, to any extent, be held invalid or unenforceable, the remainder of this
Agreement, and the application of such provisions to persons or situations other than those
as to which it shall have been held invalid or unenforceable, shall not be affected thereby,
and shall continue in full force and effect, and be enforced to the fullest extent permitted
by law.
23.ANTI-HUMAN TRAFFICKING. On or before the Effective Date of this Agreement,
Vendor shall provide City with an affidavit attesting that the Vendor does not use coercion
for labor or services, in accordance with Section 787.06(13), Florida Statutes.
Piggyback Contract-Sutphen 6
for labor or services,in accordance with Section 787.06(13), Florida Statutes.
IN WITNESS OF THE FOREGOING,the parties have set their hands and seals the day
and year first written above.
CITY OF BOYNTON B CH,FLORIDA THE SUTPHEN CORPORATION
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Julia S.Phelps 3L.(tei .,5., fteijfls
Print Name of Authorized Official
Vice President
Title
Approved as to Form:
PAAkid J. ae„,4
Shawna G. Lamb,City Attorney (Corporate Seal)
Attest/Authenticated:
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Piggyback Conbacr-Sutphen 7
EXHIBIT A
SOURCEWELL RFP CONTRACT 113021 FOR FIREFIGHTING APPARATUS
AND FIRE SERVICE VEHICLES,BETWEEN THE SOURCEWELL,AN AGENCY OF
THE STATE OF MINNESOTA,AND THE SUTPHEN CORPORATION
Piggyback Contract-Sutphen 8
DocuSign Envelope ID:D84B92F8-94A2-4E2A-BCFB-F962C438ECE9
113021-SUT
Sourcewell
Solicitation Number: RFP#113021
CONTRACT
This Contract is between Sourcewell, 202 12th Street Northeast, P.O. Box 219, Staples, MN
56479 (Sourcewell) and The Sutphen Corporation, 6450 Eiterman Road, Dublin, OH 43016
(Supplier).
Sourcewell is a State of Minnesota local government unit and service cooperative created
under the laws of the State of Minnesota (Minnesota Statutes Section 123A.21) that offers
cooperative procurement solutions to government entities. Participation is open to eligible
federal, state/province, and municipal governmental entities, higher education, K-12 education,
nonprofit, tribal government, and other public entities located in the United States and Canada.
Sourcewell issued a public solicitation for Firefighting Apparatus and Fire Service Vehicles from
which Supplier was awarded a contract.
Supplier desires to contract with Sourcewell to provide equipment, products, or services to
Sourcewell and the entities that access Sourcewell's cooperative purchasing contracts
(Participating Entities).
1. TERM OF CONTRACT
A. EFFECTIVE DATE. This Contract is effective upon the date of the final signature below.
B. EXPIRATION DATE AND EXTENSION.This Contract expires February 10, 2026, unless it is
cancelled sooner pursuant to Article 22.This Contract may be extended one additional year
upon the request of Sourcewell and written agreement by Supplier.
C. SURVIVAL OF TERMS. Notwithstanding any expiration or termination of this Contract, all
payment obligations incurred prior to expiration or termination will survive, as will the
following:Articles 11 through 14 survive the expiration or cancellation of this Contract. All
other rights will cease upon expiration or termination of this Contract.
2. EQUIPMENT, PRODUCTS, OR SERVICES
A. EQUIPMENT, PRODUCTS, OR SERVICES. Supplier will provide the Equipment, Products, or
Services as stated in its Proposal submitted under the Solicitation Number listed above.
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113021-SUT
Supplier's Equipment, Products, or Services Proposal (Proposal) is attached and incorporated
into this Contract.
All Equipment and Products provided under this Contract must be new and the current model.
Supplier may offer close-out, refurbished, or remounted Equipment or Products if they are
clearly indicated in Supplier's product and pricing list. Unless agreed to by the Participating
Entities in advance, Equipment or Products must be delivered as operational to the
Participating Entity's site.
This Contract offers an indefinite quantity of sales, and while substantial volume is anticipated,
sales and sales volume are not guaranteed.
B. WARRANTY. Supplier warrants that all Equipment, Products, and Services furnished are free
from liens and encumbrances, and are free from defects in design, materials, and workmanship.
In addition, Supplier warrants the Equipment, Products, and Services are suitable for and will
perform in accordance with the ordinary use for which they are intended. Supplier's dealers
and distributors must agree to assist the Participating Entity in reaching a resolution in any
dispute over warranty terms with the manufacturer. Any manufacturer's warranty that extends
beyond the expiration of the Supplier's warranty will be passed on to the Participating Entity.
C. DEALERS, DISTRIBUTORS,AND/OR RESELLERS. Upon Contract execution and throughout
the Contract term, Supplier must provide to Sourcewell a current means to validate or
authenticate Supplier's authorized dealers, distributors, or resellers relative to the Equipment,
Products, and Services offered under this Contract, which will be incorporated into this
Contract by reference. It is the Supplier's responsibility to ensure Sourcewell receives the most
current information.
3. PRICING
All Equipment, Products, or Services under this Contract will be priced at or below the price
stated in Supplier's Proposal.
When providing pricing quotes to Participating Entities, all pricing quoted must reflect a
Participating Entity's total cost of acquisition.This means that the quoted cost is for delivered
Equipment, Products, and Services that are operational for their intended purpose, and
includes all costs to the Participating Entity's requested delivery location.
Regardless of the payment method chosen by the Participating Entity, the total cost associated
with any purchase option of the Equipment, Products, or Services must always be disclosed in
the pricing quote to the applicable Participating Entity at the time of purchase.
A. SHIPPING AND SHIPPING COSTS. All delivered Equipment and Products must be properly
packaged. Damaged Equipment and Products may be rejected. If the damage is not readily
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113021-SUT
apparent at the time of delivery, Supplier must permit the Equipment and Products to be
returned within a reasonable time at no cost to Sourcewell or its Participating Entities.
Participating Entities reserve the right to inspect the Equipment and Products at a reasonable
time after delivery where circumstances or conditions prevent effective inspection of the
Equipment and Products at the time of delivery. In the event of the delivery of nonconforming
Equipment and Products, the Participating Entity will notify the Supplier as soon as possible and
the Supplier will replace nonconforming Equipment and Products with conforming Equipment
and Products that are acceptable to the Participating Entity.
Supplier must arrange for and pay for the return shipment on Equipment and Products that arrive
in a defective or inoperable condition.
Sourcewell may declare the Supplier in breach of this Contract if the Supplier intentionally
delivers substandard or inferior Equipment or Products.
B. SALES TAX. Each Participating Entity is responsible for supplying the Supplier with valid tax-
exemption certification(s). When ordering, a Participating Entity must indicate if it is a tax-
I
exempt entity. 1
C. HOT LIST PRICING. At any time during this Contract, Supplier may offer a specific selection
of Equipment, Products, or Services at discounts greater than those listed in the Contract.
When Supplier determines it will offer Hot List Pricing, it must be submitted electronically to
Sourcewell in a line-item format. Equipment, Products, or Services may be added or removed
from the Hot List at any time through a Sourcewell Price and Product Change Form as defined
in Article 4 below.
Hot List program and pricing may also be used to discount and liquidate close-out and
discontinued Equipment and Products as long as those close-out and discontinued items are
clearly identified as such. Current ordering process and administrative fees apply. Hot List
Pricing must be published and made available to all Participating Entities.
4. PRODUCT AND PRICING CHANGE REQUESTS
Supplier may request Equipment, Product, or Service changes, additions, or deletions at any
time. All requests must be made in writing by submitting a signed Sourcewell Price and Product
Change Request Form to the assigned Sourcewell Supplier Development Administrator.This
approved form is available from the assigned Sourcewell Supplier Development Administrator.
At a minimum, the request must:
• Identify the applicable Sourcewell contract number;
• Clearly specify the requested change;
• Provide sufficient detail to justify the requested change;
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113021-SUT
• Individually list all Equipment, Products, or Services affected by the requested change,
along with the requested change (e.g., addition, deletion, price change); and
• Include a complete restatement of pricing documentation in Microsoft Excel with the
effective date of the modified pricing, or product addition or deletion.The new pricing
restatement must include all Equipment, Products, and Services offered, even for those
items where pricing remains unchanged.
A fully executed Sourcewell Price and Product Change Request Form will become an
amendment to this Contract and will be incorporated by reference.
5. PARTICIPATION, CONTRACT ACCESS,AND PARTICIPATING ENTITY REQUIREMENTS
A. PARTICIPATION. Sourcewell's cooperative contracts are available and open to public and
nonprofit entities across the United States and Canada; such as federal, state/province,
municipal, K-12 and higher education, tribal government, and other public entities.
The benefits of this Contract should be available to all Participating Entities that can legally
access the Equipment, Products, or Services under this Contract. A Participating Entity's
authority to access this Contract is determined through its cooperative purchasing, interlocal,
or joint powers laws. Any entity accessing benefits of this Contract will be considered a Service
Member of Sourcewell during such time of access. Supplier understands that a Participating
Entity's use of this Contract is at the Participating Entity's sole convenience and Participating
Entities reserve the right to obtain like Equipment, Products, or Services from any other source.
Supplier is responsible for familiarizing its sales and service forces with Sourcewell contract use
eligibility requirements and documentation and will encourage potential participating entities
to join Sourcewell. Sourcewell reserves the right to add and remove Participating Entities to its
roster during the term of this Contract.
B. PUBLIC FACILITIES. Supplier's employees may be required to perform work at government-
owned facilities, including schools. Supplier's employees and agents must conduct themselves
in a professional manner while on the premises, and in accordance with Participating Entity
policies and procedures, and all applicable laws.
6. PARTICIPATING ENTITY USE AND PURCHASING
A. ORDERS AND PAYMENT.To access the contracted Equipment, Products, or Services under
this Contract, a Participating Entity must clearly indicate to Supplier that it intends to access this
Contract; however, order flow and procedure will be developed jointly between Sourcewell and
Supplier.Typically, a Participating Entity will issue an order directly to Supplier or its authorized
subsidiary,distributor, dealer, or reseller. If a Participating Entity issues a purchase order, it
may use its own forms, but the purchase order should clearly note the applicable Sourcewell
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contract number. All Participating Entity orders under this Contract must be issued prior to
expiration or cancellation of this Contract; however, Supplier performance, Participating Entity
payment obligations, and any applicable warranty periods or other Supplier or Participating
Entity obligations may extend beyond the term of this Contract.
Supplier's acceptable forms of payment are included in its attached Proposal. Participating
Entities will be solely responsible for payment and Sourcewell will have no liability for any
unpaid invoice of any Participating Entity.
B. ADDITIONAL TERMS AND CONDITIONS/PARTICIPATING ADDENDUM. Additional terms and
conditions to a purchase order, or other required transaction documentation, may be
negotiated between a Participating Entity and Supplier, such as job or industry-specific
requirements, legal requirements(e.g., affirmative action or immigration status requirements),
or specific local policy requirements. Some Participating Entities may require the use of a
Participating Addendum; the terms of which will be negotiated directly between the
Participating Entity and the Supplier. Any negotiated additional terms and conditions must
never be less favorable to the Participating Entity than what is contained in this Contract.
C. SPECIALIZED SERVICE REQUIREMENTS. In the event that the Participating Entity requires
service or specialized performance requirements not addressed in this Contract (such as e-
commerce specifications, specialized delivery requirements, or other specifications and
requirements), the Participating Entity and the Supplier may enter into a separate, standalone
agreement, apart from this Contract. Sourcewell, including its agents and employees, will not
be made a party to a claim for breach of such agreement.
D. TERMINATION OF ORDERS. Participating Entities may terminate an order, in whole or
in part, immediately upon notice to Supplier in the event of any of the following events:
1. The Participating Entity fails to receive funding or appropriation from its governing body
at levels sufficient to pay for the equipment, products, or services to be purchased; or
2. Federal, state, or provincial laws or regulations prohibit the purchase or change the
Participating Entity's requirements.
E. GOVERNING LAW AND VENUE. The governing law and venue for any action related to a
Participating Entity's order will be determined by the Participating Entity making the purchase.
7. CUSTOMER SERVICE
A. PRIMARY ACCOUNT REPRESENTATIVE.Supplier will assign an Account Representative to
Sourcewell for this Contract and must provide prompt notice to Sourcewell if that person is
changed. The Account Representative will be responsible for:
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• Maintenance and management of this Contract;
• Timely response to all Sourcewell and Participating Entity inquiries; and
• Business reviews to Sourcewell and Participating Entities, if applicable.
B. BUSINESS REVIEWS. Supplier must perform a minimum of one business review with
Sourcewell per contract year. The business review will cover sales to Participating Entities,
pricing and contract terms, administrative fees, sales data reports, supply issues, customer
issues, and any other necessary information.
8. REPORT ON CONTRACT SALES ACTIVITY AND ADMINISTRATIVE FEE PAYMENT
A. CONTRACT SALES ACTIVITY REPORT. Each calendar quarter, Supplier must provide a
contract sales activity report (Report) to the Sourcewell Supplier Development Administrator
assigned to this Contract. Reports are due no later than 45 days after the end of each calendar
quarter. A Report must be provided regardless of the number or amount of sales during that
quarter (i.e., if there are no sales, Supplier must submit a report indicating no sales were
made).
The Report must contain the following fields:
• Participating Entity Name (e.g., City of Staples Highway Department);
• Participating Entity Physical Street Address;
• Participating Entity City;
• Participating Entity State/Province;
• Participating Entity Zip/Postal Code;
• Participating Entity Contact Name;
• Participating Entity Contact Email Address;
• Participating Entity Contact Telephone Number;
• Sourcewell Assigned Entity/Participating Entity Number;
• Item Purchased Description;
• Item Purchased Price;
• Sourcewell Administrative Fee Applied; and
• Date Purchase was invoiced/sale was recognized as revenue by Supplier.
B. ADMINISTRATIVE FEE. In consideration for the support and services provided by Sourcewell,
the Supplier will pay an administrative fee to Sourcewell on all Equipment, Products, and
Services provided to Participating Entities. The Administrative Fee must be included in, and not
added to, the pricing. Supplier may not charge Participating Entities more than the contracted
price to offset the Administrative Fee.
The Supplier will submit payment to Sourcewell for the percentage of administrative fee stated
in the Proposal multiplied by the total sales of all Equipment, Products, and Services purchased
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by Participating Entities under this Contract during each calendar quarter. Payments should
note the Supplier's name and Sourcewell-assigned contract number in the memo; and must be
mailed to the address above "Attn: Accounts Receivable" or remitted electronically to
Sourcewell's banking institution per Sourcewell's Finance department instructions. Payments
must be received no later than 45 calendar days after the end of each calendar quarter.
Supplier agrees to cooperate with Sourcewell in auditing transactions under this Contract to
ensure that the administrative fee is paid on all items purchased under this Contract.
In the event the Supplier is delinquent in any undisputed administrative fees, Sourcewell
reserves the right to cancel this Contract and reject any proposal submitted by the Supplier in
any subsequent solicitation. In the event this Contract is cancelled by either party prior to the
Contract's expiration date,the administrative fee payment will be due no more than 30 days
from the cancellation date.
9. AUTHORIZED REPRESENTATIVE
Sourcewell's Authorized Representative is its Chief Procurement Officer.
Supplier's Authorized Representative is the person named in the Supplier's Proposal. If
Supplier's Authorized Representative changes at any time during this Contract, Supplier must
promptly notify Sourcewell in writing.
10.AUDIT,ASSIGNMENT,AMENDMENTS,WAIVER,AND CONTRACT COMPLETE
A. AUDIT. Pursuant to Minnesota Statutes Section 16C.05, subdivision 5, the books, records,
documents, and accounting procedures and practices relevant to this Agreement are subject to
examination by Sourcewell or the Minnesota State Auditor for a minimum of six years from the
end of this Contract.This clause extends to Participating Entities as it relates to business
conducted by that Participating Entity under this Contract.
B. ASSIGNMENT. Neither party may assign or otherwise transfer its rights or obligations under
this Contract without the prior written consent of the other party and a fully executed
assignment agreement. Such consent will not be unreasonably withheld. Any prohibited
assignment will be invalid.
C. AMENDMENTS.Any amendment to this Contract must be in writing and will not be effective
until it has been duly executed by the parties.
D. WAIVER. Failure by either party to take action or assert any right under this Contract will
not be deemed a waiver of such right in the event of the continuation or repetition of the
circumstances giving rise to such right.Any such waiver must be in writing and signed by the
parties.
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E. CONTRACT COMPLETE. This Contract represents the complete agreement between the
parties. No other understanding regarding this Contract, whether written or oral, may be used
to bind either party.For any conflict between the attached Proposal and the terms set out in
Articles 1-22 of this Contract, the terms of Articles 1-22 will govern.
F. RELATIONSHIP OF THE PARTIES.The relationship of the parties is one of independent
contractors, each free to exercise judgment and discretion with regard to the conduct of their
respective businesses.This Contract does not create a partnership,joint venture, or any other
relationship such as master-servant, or principal-agent.
11. INDEMNITY AND HOLD HARMLESS
Supplier must indemnify, defend, save, and hold Sourcewell and its Participating Entities,
including their agents and employees, harmless from any claims or causes of action, including
attorneys'fees incurred by Sourcewell or its Participating Entities, arising out of any act or
omission in the performance of this Contract by the Supplier or its agents or employees;this
indemnification includes injury or death to person(s) or property alleged to have been caused
by some defect in the Equipment, Products, or Services under this Contract to the extent the
Equipment, Product, or Service has been used according to its specifications. Sourcewell's
responsibility will be governed by the State of Minnesota's Tort Liability Act (Minnesota
Statutes Chapter 466) and other applicable law.
12.GOVERNMENT DATA PRACTICES
Supplier and Sourcewell must comply with the Minnesota Government Data Practices Act,
Minnesota Statutes Chapter 13, as it applies to all data provided by or provided to Sourcewell
under this Contract and as it applies to all data created, collected, received, stored, used,
maintained, or disseminated by the Supplier under this Contract.
13. INTELLECTUAL PROPERTY, PUBLICITY, MARKETING,AND ENDORSEMENT
A. INTELLECTUAL PROPERTY
1. Grant of License. During the term of this Contract:
a. Sourcewell grants to Supplier a royalty-free, worldwide, non-exclusive right and
license to use thetrademark(s) provided to Supplier by Sourcewell in advertising and
promotional materials for the purpose of marketing Sourcewell's relationship with
Supplier.
b. Supplier grants to Sourcewell a royalty-free, worldwide, non-exclusive right and
license to use Supplier's trademarks in advertising and promotional materials for the
purpose of marketing Supplier's relationship with Sourcewell.
2. Limited Right of Sublicense.The right and license granted herein includes a limited right
of each party to grant sublicenses to their respective subsidiaries, distributors, dealers,
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resellers, marketing representatives, and agents (collectively "Permitted Sublicensees") in
advertising and promotional materials for the purpose of marketing the Parties' relationship
to Participating Entities. Any sublicense granted will be subject to the terms and conditions
of this Article. Each party will be responsible for any breach of this Article by any of their
respective sublicensees.
3. Use; Quality Control.
a. Neither party may alter the other party's trademarks from the form provided
and must comply with removal requests as to specific uses of its trademarks or
logos.
b. Each party agrees to use, and to cause its Permitted Sublicensees to use, the
other party's trademarks only in good faith and in a dignified manner consistent with
such party's use of the trademarks. Upon written notice to the breaching party, the
breaching party has 30 days of the date of the written notice to cure the breach or
the license will be terminated.
4. As applicable, Supplier agrees to indemnify and hold harmless Sourcewell and its
Participating Entities against any and all suits, claims,judgments, and costs instituted or
recovered against Sourcewell or Participating Entities by any person on account of the use
of any Equipment or Products by Sourcewell or its Participating Entities supplied by Supplier
in violation of applicable patent or copyright laws.
S. Termination. Upon the termination of this Contract for any reason, each party, including
Permitted Sublicensees, will have 30 days to remove all Trademarks from signage, websites,
and the like bearing the other party's name or logo (excepting Sourcewell's pre-printed
catalog of suppliers which may be used until the next printing). Supplier must return all
marketing and promotional materials, including signage, provided by Sourcewell, or dispose
of it according to Sourcewell's written directions.
B. PUBLICITY. Any publicity regarding the subject matter of this Contract must not be released
without prior written approval from the Authorized Representatives. Publicity includes notices,
informational pamphlets, press releases, research, reports, signs, and similar public notices
prepared by or for the Supplier individually or jointly with others, or any subcontractors, with
respect to the program, publications, or services provided resulting from this Contract.
C. MARKETING. Any direct advertising, marketing, or offers with Participating Entities must be
approved by Sourcewell. Send all approval requests to the Sourcewell Supplier Development
Administrator assigned to this Contract.
D. ENDORSEMENT. The Supplier must not claim that Sourcewell endorses its Equipment,
Products, or Services.
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14.GOVERNING LAW,JURISDICTION,AND VENUE
The substantive and procedural laws of the State of Minnesota will govern this Contract. Venue
for all legal proceedings arising out of this Contract, or its breach, must be in the appropriate
state court in Todd County, Minnesota or federal court in Fergus Falls, Minnesota.
15. FORCE MAJEURE
Neither party to this Contract will be held responsible for delay or default caused by acts of God
or other conditions that are beyond that party's reasonable control. A party defaulting under
this provision must provide the other party prompt written notice of the default.
16.SEVERABILITY
If any provision of this Contract is found by a court of competent jurisdiction to be illegal,
unenforceable, or void then both parties will be relieved from all obligations arising from that
provision. If the remainder of this Contract is capable of being performed, it will not be affected
by such determination or finding and must be fully performed.
17. PERFORMANCE, DEFAULT,AND REMEDIES
A. PERFORMANCE. During the term of this Contract,the parties will monitor performance and
address unresolved contract issues as follows:
1. Notification. The parties must promptly notify each other of any known dispute and
work in good faith to resolve such dispute within a reasonable period of time. If necessary,
Sourcewell and the Supplier will jointly develop a short briefing document that describes
the issue(s), relevant impact, and positions of both parties.
2. Escalation. If parties are unable to resolve the issue in a timely manner, as specified
above, either Sourcewell or Supplier may escalate the resolution of the issue to a higher
level of management.The Supplier will have 30 calendar days to cure an outstanding issue.
3. Performance while Dispute is Pending. Notwithstanding the existence of a dispute, the
Supplier must continue without delay to carry out all of its responsibilities under the
Contract that are not affected by the dispute. If the Supplier fails to continue without delay
to perform its responsibilities under the Contract, in the accomplishment of all undisputed
work, the Supplier will bear any additional costs incurred by Sourcewell and/or its
Participating Entities as a result of such failure to proceed.
B. DEFAULT AND REMEDIES. Either of the following constitutes cause to declare this Contract,
or any Participating Entity order under this Contract, in default:
1. Nonperformance of contractual requirements, or
2. A material breach of any term or condition of this Contract.
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The party claiming default must provide written notice of the default, with 30 calendar days to
cure the default. Time allowed for cure will not diminish or eliminate any liability for liquidated
or other damages. If the default remains after the opportunity for cure, the non-defaulting
party may:
• Exercise any remedy provided by law or equity, or
• Terminate the Contract or any portion thereof, including any orders issued against the
Contract.
18. INSURANCE
A. REQUIREMENTS. At its own expense, Supplier must maintain insurance policy(ies) in effect
at all times during the performance of this Contract with insurance company(ies) licensed or
authorized to do business in the State of Minnesota having an "AM BEST" rating of A-or better,
with coverage and limits of insurance not less than the following:
1. Workers'Compensation and Employer's Liability.
Workers' Compensation:As required by any applicable law or regulation.
Employer's Liability Insurance: must be provided in amounts not less than listed below:
Minimum limits:
$500,000 each accident for bodily injury by accident
$500,000 policy limit for bodily injury by disease
$500,000 each employee for bodily injury by disease
2. Commercial General Liability Insurance. Supplier will maintain insurance covering its
operations, with coverage on an occurrence basis, and must be subject to terms no less
broad than the Insurance Services Office ("ISO") Commercial General Liability Form
CG0001 (2001 or newer edition), or equivalent. At a minimum, coverage must include
liability arising from premises, operations, bodily injury and property damage,
independent contractors, products-completed operations including construction defect,
contractual liability, blanket contractual liability, and personal injury and advertising
injury. All required limits, terms and conditions of coverage must be maintained during
the term of this Contract.
Minimum Limits:
$1,000,000 each occurrence Bodily Injury and Property Damage
$1,000,000 Personal and Advertising Injury
$2,000,000 aggregate for Products-Completed operations
$2,000,000 general aggregate
3. Commercial Automobile Liability Insurance. During the term of this Contract,
Supplier will maintain insurance covering all owned, hired, and non-owned automobiles
in limits of liability not less than indicated below.The coverage must be subject to terms
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no less broad than ISO Business Auto Coverage Form CA 0001 (2010 edition or newer),
or equivalent.
Minimum Limits:
$1,000,000 each accident, combined single limit
4. Umbrella Insurance. During the term of this Contract, Supplier will maintain
umbrella coverage over Employer's Liability, Commercial General Liability, and
Commercial Automobile.
Minimum Limits:
$2,000,000
5. Network Security and Privacy Liability Insurance. During the term of this Contract,
Supplier will maintain coverage for network security and privacy liability.The coverage
may be endorsed on another form of liability coverage or written on a standalone
policy.The insurance must cover claims which may arise from failure of Supplier's
security resulting in, but not limited to, computer attacks, unauthorized access,
disclosure of not public data—including but not limited to, confidential or private
information, transmission of a computer virus, or denial of service.
Minimum limits:
$2,000,000 per occurrence
$2,000,000 annual aggregate
Failure of Supplier to maintain the required insurance will constitute a material breach entitling
Sourcewell to immediately terminate this Contract for default.
B. CERTIFICATES OF INSURANCE. Prior to commencing under this Contract,Supplier must
furnish to Sourcewell a certificate of insurance, as evidence of the insurance required under this
Contract. Prior to expiration of the policy(ies), renewal certificates must be mailed to
Sourcewell, 202 12th Street Northeast, P.O. Box 219, Staples, MN 56479 or sent to the
Sourcewell Supplier Development Administrator assigned to this Contract.The certificates must
be signed by a person authorized by the insurer(s) to bind coverage on their behalf.
Failure to request certificates of insurance by Sourcewell, or failure of Supplier to provide
certificates of insurance, in no way limits or relieves Supplier of its duties and responsibilities in
this Contract.
C. ADDITIONAL INSURED ENDORSEMENT AND PRIMARY AND NON-CONTRIBUTORY
INSURANCE CLAUSE. Supplier agrees to list Sourcewell and its Participating Entities, including
their officers, agents, and employees, as an additional insured under the Supplier's commercial
general liability insurance policy with respect to liability arising out of activities, "operations,"or
"work" performed by or on behalf of Supplier, and products and completed operations of
Supplier.The policy provision(s) or endorsement(s) must further provide that coverage is
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primary and not excess over or contributory with any other valid, applicable, and collectible
insurance or self-insurance in force for the additional insureds.
D. WAIVER OF SUBROGATION. Supplier waives and must require (by endorsement or
otherwise) all its insurers to waive subrogation rights against Sourcewell and other additional
insureds for losses paid under the insurance policies required by this Contract or other
insurance applicable to the Supplier or its subcontractors.The waiver must apply to all
deductibles and/or self-insured retentions applicable to the required or any other insurance
maintained by the Supplier or its subcontractors. Where permitted by law, Supplier must
require similar written express waivers of subrogation and insurance clauses from each of its
subcontractors.
E. UMBRELLA/EXCESS LIABILITY/SELF-INSURED RETENTION.The limits required by this
Contract can be met by either providing a primary policy or in combination with
umbrella/excess liability policy(ies), or self-insured retention.
19.COMPLIANCE
A. LAWS AND REGULATIONS. All Equipment, Products, or Services provided under this
Contract must comply fully with applicable federal laws and regulations, and with the laws in
the states and provinces in which the Equipment, Products, or Services are sold.
B. LICENSES. Supplier must maintain a valid and current status on all required federal,
state/provincial, and local licenses, bonds, and permits required for the operation of the
business that the Supplier conducts with Sourcewell and Participating Entities.
20. BANKRUPTCY, DEBARMENT,OR SUSPENSION CERTIFICATION
Supplier certifies and warrants that it is not in bankruptcy or that it has previously disclosed in
writing certain information to Sourcewell related to bankruptcy actions. If at any time during
this Contract Supplier declares bankruptcy, Supplier must immediately notify Sourcewell in
writing.
Supplier certifies and warrants that neither it nor its principals are presently debarred,
suspended, proposed for debarment, declared ineligible, or voluntarily excluded from programs
operated by the State of Minnesota;the United States federal government or the Canadian
government, as applicable; or any Participating Entity. Supplier certifies and warrants that
neither it nor its principals have been convicted of a criminal offense related to the subject
matter of this Contract. Supplier further warrants that it will provide immediate written notice
to Sourcewell if this certification changes at any time.
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21. PROVISIONS FOR NON-UNITED STATES FEDERAL ENTITY PROCUREMENTS UNDER
UNITED STATES FEDERAL AWARDS OR OTHER AWARDS
Participating Entities that use United States federal grant or FEMA funds to purchase goods or
services from this Contract may be subject to additional requirements including the
procurement standards of the Uniform Administrative Requirements, Cost Principles and Audit
Requirements for Federal Awards, 2 C.F.R. § 200. Participating Entities may have additional
requirements based on specific funding source terms or conditions. Within this Article, all
references to "federal"should be interpreted to mean the United States federal government.
The following list only applies when a Participating Entity accesses Supplier's Equipment,
Products, or Services with United States federal funds.
A. EQUAL EMPLOYMENT OPPORTUNITY. Except as otherwise provided under 41 C.F.R. § 60, all
contracts that meet the definition of"federally assisted construction contract" in 41 C.F.R. § 60-
1.3 must include the equal opportunity clause provided under 41 C.F.R. §60-1.4(b), in
accordance with Executive Order 11246, "Equal Employment Opportunity" (30 FR 12319,
12935, 3 C.F.R. §, 1964-1965 Comp., p. 339), as amended by Executive Order 11375, "Amending
Executive Order 11246 Relating to Equal Employment Opportunity," and implementing
regulations at 41 C.F.R. §60, "Office of Federal Contract Compliance Programs, Equal
Employment Opportunity, Department of Labor."The equal opportunity clause is incorporated
herein by reference.
B. DAVIS-BACON ACT,AS AMENDED (40 U.S.C. § 3141-3148). When required by federal
program legislation, all prime construction contracts in excess of$2,000 awarded by non-
federal entities must include a provision for compliance with the Davis-Bacon Act (40 U.S.C. §
3141-3144, and 3146-3148) as supplemented by Department of Labor regulations (29 C.F.R. § 5,
"Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted
Construction"). In accordance with the statute, contractors must be required to pay wages to
laborers and mechanics at a rate not less than the prevailing wages specified in a wage
determination made by the Secretary of Labor. In addition, contractors must be required to pay
wages not less than once a week. The non-federal entity must place a copy of the current
prevailing wage determination issued by the Department of Labor in each solicitation.The
decision to award a contract or subcontract must be conditioned upon the acceptance of the
wage determination. The non-federal entity must report all suspected or reported violations to
the federal awarding agency.The contracts must also include a provision for compliance with
the Copeland "Anti-Kickback"Act (40 U.S.C. § 3145), as supplemented by Department of Labor
regulations(29 C.F.R. § 3, "Contractors and Subcontractors on Public Building or Public Work
Financed in Whole or in Part by Loans or Grants from the United States"). The Act provides that
each contractor or subrecipient must be prohibited from inducing, by any means, any person
employed in the construction, completion, or repair of public work, to give up any part of the
compensation to which he or she is otherwise entitled. The non-federal entity must report
all suspected or reported violations to the federal awarding agency. Supplier must be in
compliance with all applicable Davis-Bacon Act provisions.
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C. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT(40 U.S.C. § 3701-3708). Where
applicable, all contracts awarded by the non-federal entity in excess of$100,000 that involve
the employment of mechanics or laborers must include a provision for compliance with 40
U.S.C. §§ 3702 and 3704, as supplemented by Department of Labor regulations (29 C.F.R. § 5).
Under 40 U.S.C. § 3702 of the Act, each contractor must be required to compute the wages of
every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess
of the standard work week is permissible provided that the worker is compensated at a rate of
not less than one and a half times the basic rate of pay for all hours worked in excess of 40
hours in the work week.The requirements of 40 U.S.C. § 3704 are applicable to construction
work and provide that no laborer or mechanic must be required to work in surroundings or
under working conditions which are unsanitary, hazardous or dangerous.These requirements
do not apply to the purchases of supplies or materials or articles ordinarily available on the
open market, or contracts for transportation or transmission of intelligence. This provision is
hereby incorporated by reference into this Contract. Supplier certifies that during the term of
an award for all contracts by Sourcewell resulting from this procurement process, Supplier must
comply with applicable requirements as referenced above.
D. RIGHTS TO INVENTIONS MADE UNDER A CONTRACT OR AGREEMENT. If the federal award
meets the definition of "funding agreement" under 37 C.F.R. §401.2(a) and the recipient or
subrecipient wishes to enter into a contract with a small business firm or nonprofit organization
regarding the substitution of parties, assignment or performance of experimental,
developmental, or research work under that "funding agreement," the recipient or subrecipient
must comply with the requirements of 37 C.F.R. § 401, "Rights to Inventions Made by Nonprofit
Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative
Agreements," and any implementing regulations issued by the awarding agency. Supplier
certifies that during the term of an award for all contracts by Sourcewell resulting from this
procurement process, Supplier must comply with applicable requirements as referenced above.
E. CLEAN AIR ACT(42 U.S.C. § 7401-7671Q.)AND THE FEDERAL WATER POLLUTION CONTROL
ACT(33 U.S.C. § 1251-1387). Contracts and subgrants of amounts in excess of$150,000 require
the non-federal award to agree to comply with all applicable standards, orders or regulations
issued pursuant to the Clean Air Act (42 U.S.C. § 7401-7671q) and the Federal Water Pollution
Control Act as amended (33 U.S.C. § 1251- 1387). Violations must be reported to the Federal
awarding agency and the Regional Office of the Environmental Protection Agency (EPA).
Supplier certifies that during the term of this Contract will comply with applicable requirements
as referenced above.
F. DEBARMENT AND SUSPENSION (EXECUTIVE ORDERS 12549 AND 12689). A contract award
(see 2 C.F.R. § 180.220) must not be made to parties listed on the government wide exclusions
in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 C.F.R.
§180 that implement Executive Orders 12549 (3 C.F.R. § 1986 Comp., p. 189) and 12689 (3
C.F.R. § 1989 Comp., p. 235), "Debarment and Suspension."SAM Exclusions contains the names
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of parties debarred, suspended,or otherwise excluded by agencies, as well as parties declared
ineligible under statutory or regulatory authority other than Executive Order 12549. Supplier
certifies that neither it nor its principals are presently debarred, suspended, proposed for
debarment, declared ineligible, or voluntarily excluded from participation by any federal
department or agency.
G. BYRD ANTI-LOBBYING AMENDMENT, AS AMENDED (31 U.S.C. § 1352). Suppliers must file
any required certifications. Suppliers must not have used federal appropriated funds to pay any
person or organization for influencing or attempting to influence an officer or employee of any
agency, a member of Congress, officer or employee of Congress, or an employee of a member
of Congress in connection with obtaining any federal contract,grant, or any other award
covered by 31 U.S.C. § 1352. Suppliers must disclose any lobbying with non-federal funds that
takes place in connection with obtaining any federal award. Such disclosures are forwarded
from tier to tier up to the non-federal award. Suppliers must file all certifications and
disclosures required by, and otherwise comply with,the Byrd Anti-Lobbying Amendment (31
U.S.C. § 1352).
H. RECORD RETENTION REQUIREMENTS. To the extent applicable, Supplier must comply with
the record retention requirements detailed in 2 C.F.R. § 200.333.The Supplier further certifies
that it will retain all records as required by 2 C.F.R. § 200.333 for a period of 3 years after
grantees or subgrantees submit final expenditure reports or quarterly or annual financial
reports, as applicable, and all other pending matters are closed.
I. ENERGY POLICY AND CONSERVATION ACT COMPLIANCE. To the extent applicable,Supplier
must comply with the mandatory standards and policies relating to energy efficiency which are
contained in the state energy conservation plan issued in compliance with the Energy Policy
and Conservation Act.
J. BUY AMERICAN PROVISIONS COMPLIANCE. To the extent applicable, Supplier must comply
with all applicable provisions of the Buy American Act. Purchases made in accordance with the
Buy American Act must follow the applicable procurement rules calling for free and open
competition.
K. ACCESS TO RECORDS (2 C.F.R. § 200.336). Supplier agrees that duly authorized
representatives of a federal agency must have access to any books, documents, papers and
records of Supplier that are directly pertinent to Supplier's discharge of its obligations under
this Contract for the purpose of making audits, examinations, excerpts, and transcriptions.The
right also includes timely and reasonable access to Supplier's personnel for the purpose of
interview and discussion relating to such documents.
L. PROCUREMENT OF RECOVERED MATERIALS (2 C.F.R. § 200.322). A non-federal entity that is
a state agency or agency of a political subdivision of a state and its contractors must comply
with Section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation
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113021-SUT
and Recovery Act.The requirements of Section 6002 include procuring only items designated in
guidelines of the Environmental Protection Agency(EPA) at 40 C.F.R. § 247 that contain the
highest percentage of recovered materials practicable, consistent with maintaining a
satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the
value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring
solid waste management services in a manner that maximizes energy and resource recovery;
and establishing an affirmative procurement program for procurement of recovered materials
identified in the EPA guidelines.
M. FEDERAL SEAL(S), LOGOS, AND FLAGS.The Supplier not use the seal(s), logos, crests, or
reproductions of flags or likenesses of Federal agency officials without specific pre-approval.
N. NO OBLIGATION BY FEDERAL GOVERNMENT. The U.S. federal government is not a party to
this Contract or any purchase by an Participating Entity and is not subject to any obligations or
liabilities to the Participating Entity, Supplier, or any other party pertaining to any matter
resulting from the Contract or any purchase by an authorized user.
0. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS OR RELATED ACTS.The
Contractor acknowledges that 31 U.S.C. 38 (Administrative Remedies for False Claims and
Statements) applies to the Supplier's actions pertaining to this Contract or any purchase by a
Participating Entity.
P. FEDERAL DEBT. The Supplier certifies that it is non-delinquent in its repayment of any
federal debt. Examples of relevant debt include delinquent payroll and other taxes, audit
disallowance, and benefit overpayments.
Q. CONFLICTS OF INTEREST.The Supplier must notify the U.S. Office of General Services,
Sourcewell, and Participating Entity as soon as possible if this Contract or any aspect related to
the anticipated work under this Contract raises an actual or potential conflict of interest(as
described in 2 C.F.R. Part 200). The Supplier must explain the actual or potential conflict in
writing in sufficient detail so that the U.S. Office of General Services, Sourcewell, and
Participating Entity are able to assess the actual or potential conflict; and provide any additional
information as necessary or requested.
R. U.S. EXECUTIVE ORDER 13224.The Supplier, and its subcontractors, must comply with U.S.
Executive Order 13224 and U.S. Laws that prohibit transactions with and provision of resources
and support to individuals and organizations associated with terrorism.
S. PROHIBITION ON CERTAIN TELECOMMUNICATIONS AND VIDEO SURVEILLANCE SERVICES OR
EQUIPMENT.To the extent applicable, Supplier certifies that during the term of this Contract it
will comply with applicable requirements of 2 C.F.R. § 200.216.
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I1302 1-SUT
T. DOMESTIC PREFERENCES FOR PROCUREMENTS.To the extent applicable, Supplier certifies
that during the term of this Contract will comply with applicable requirements of 2 C.F.R. §
200.322.
22. CANCELLATION
Sourcewell or Supplier may cancel this Contract at any time, with or without cause, upon 60
days' written notice to the other party. However, Sourcewell may cancel this Contract
immediately upon discovery of a material defect in any certification made in Supplier's
Proposal. Cancellation of this Contract does not relieve either party of financial, product, or
service obligations incurred or accrued prior to cancellation.
Sourcewell The Sutphen Corporation
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By: 139D08489 By -- 14FD9C3BB060447...
Jeremy Schwartz Drew Sutphen
Title: Chief Procurement Officer Title: President
2/7/2022 1 9:22 PM CST 2/8/2022 1 3:13 PM CST
Date: Date:
Approved:
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By:
Chad Coauette
Title: Executive Director/CEO
2/8/2022 15:16 PM CST
Date:
Rev.3/2021 18
EXHIBIT B
SUTPHEN PROPOSAL DATED JULY 10,2024
Piggyback Contract-Sutphen 9
9 SUTPHEN
PROPOSAL
TO THE: DATE: July 10, 2024
Boynton Beach Fire
2080 High Ridge Road
Boynton Beach, FL 33426
We hereby propose and agree to furnish the following firefighting equipment upon your
acceptance of this Proposal and the Terms and Conditions there in:
One (1) Sutphen Heavy Duty 75' Mid-Mount Aerial Ladder(SL 75) Complete and
Delivered for the Total Sum of $ 1,679,725.00
Three(3)SL75s ordered together for a total of $ 5,039,175.00
** Cost based on Sourcewell Contract# 113021
NOTE: If you pay the invoice for each truck within 72 hours of its' arriving at South Florida
Emergency Vehicles,you may deduct$ 15,000.00 per truck for a payment of$ 1,664,725.00
each.
The apparatus and equipment being purchased hereunder shall be completed within
approximately 26-28 months after the Sutphen's receipt and approval of Purchaser's
acceptance of this Proposal._
This Proposal shall be valid for Thirty (30) days. If a Purchase Agreement or Purchase Order
is not received by Sutphen within 30 days of the date of this Proposal,Sutphen reserves the
right to extend, withdraw, or modify this Proposal, including pricing, delivery times, and
prepayment discounts, as applicable.
Respectfully submitted,
Guy Lombardo
South Florida Emergency Vehicles
Authorized Representative for Sutphen Corporation
573-216-2562
TERMS&CONDITIONS
Changes to National Fire Protection Association("NFPA")1900,Environmental Protection Agency("EPA")or changes legislated by Federal,State
or Local Governments or changes in parts availability or vendor relationships that impact the cost to manufacture the truck may incur additional
charges which shall be borne by the Purchaser.These may include but are not limited to changes that affect the major vendors of the fire apparatus
industry such as pump manufacturers,seat manufacturers,electrical power supplies(generators)and powertrain(engine&transmission). Any
such changes shall be documented on a change order executed by both Sutphen and Purchaser.
Sutphen shall provide written notice to the Purchaser as soon as it reasonably believes any cost increase provision may be invoked. Sutphen shall
provide,upon written request,documentation of such changes and increases.
Sutphen will use its reasonable best efforts to deliver the apparatus within the timeframe quoted herein,provided that such delivery date shall be
automatically extended for delays beyond Sutphen's control,including,without limitation,strikes, labor disputes,riots,civil unrest, pandemics,war
or other military actions,sabotage,government regulations or controls,fire or other casualty,or inability to obtain materials or services.If such delay
occurs,Sutphen shall give notice of delay to Purchaser.Purchaser shall not be entitled to any discount or reduction in price for such delay and Sutphen
shall not be liable for any damages(compensatory,incidental,consequential or otherwise)related to such delay.
Final payment shall be made within 72 hours of the unit arriving at the dealership to receive the stated discount,FULL payment must be made at the
time of delivery of the completed truck.Any loose equipment,shelving,and graphics will be completed by the dealership. Should payment be delayed,
Sutphen reserves the right to charge interest at the rate of one and one-half percent(1.5%)per month,beginning on the day after payment is due.
Transfer of the Manufacturer's Certificate of Origin(MCO)shall take place upon payment in full in accordance with these terms. Sutphen reserves
the right to withhold delivery of the MCO until payment in full is received. The apparatus shall be tested per NFPA#1900 at Sutphen's manufacturing
facility.Purchaser agrees that the apparatus and equipment being purchased hereunder shall not be driven or used in any manner until it is paid for
in full.In the event there are any shortages or omissions with the apparatus at time of completion,Purchaser may withhold a sum equivalent to the
price of any such shortages as determined by Sutphen.
In the case of any default in payment hereunder or in the payment on any notes, negotiable paper, obligations or other instruments issued by
Purchaser,Sutphen may take full possession of the apparatus and equipment or of the piece or pieces upon which default has been made,and any
payments that have been made theretofore shall be applied as rent in full for the use of the apparatus and equipment up to the date of taking
possession by Sutphen.
Sutphen warrants to Purchaser that all goods and services furnished hereunder will conform in all respects to the terms of this order,including any
applicable change orders,drawings,specifications,or standards incorporated herein,and/or defects in materials,workmanship,and free from such
defects in design. In addition, Sutphen warrants that the goods and services are suitable for and will perform in accordance with the purposes for
which they were intended,for a period of one year from the Warranty Registration Date,unless an extended warranty is purchased.
The purchase price provided for herein does not include any federal,state or local sales tax,duties,imposts, revenues,excise or other taxes which
may hereafter be imposed by governmental authority or otherwise and which are made applicable to the apparatus or equipment covered by this
Proposal. In the event that any such taxes are subsequently imposed and become applicable,the purchase price herein shall be increased by the
amount of such taxes and such sum shall be immediately paid by Purchaser to Sutphen.To the extent applicable,the prices and deliveries set forth
herein are subject to the Defense Production Act.
Sutphen shall provide insurance insuring the apparatus and equipment against loss by fire,theft,or collision and insuring against property damage
and personal injury through the completion of the apparatus and transfer of the Manufacturer's Certificate of Origin.
After the execution of this Agreement, Purchaser shall have no right to terminate the Agreement.Sutphen may,in its absolute and sole discretion,
accept Purchaser's request to terminate the Agreement.In the event Sutphen accepts Purchaser's request to terminate the Agreement,Sutphen may
charge a cancellation fee. The following charge schedule based on costs incurred may be applied,at Sutphen's sole discretion:(a)10%after order is
accepted by Sutphen; (b)30%of the Purchase Price after production has commenced. The cancellation fee may increase accordingly as costs are
incurred as the order progresses through engineering and into manufacturing.
These Terms and Conditions("T&C")contained in the Proposal provided herein take precedence over all previous negotiations,oral or written,and
no representations or warranties are applicable except as specifically contained in these or in any subsequently signed agreement between the Parties.
No waiver of any of the provisions of these T&C shall be deemed a waiver of any other provision,whether similar,nor shall any waiver constitute a
continuing waiver.If a Purchase Order is issued,this Proposal,including the Terms and Conditions contained herein,shall supersede the terms in the
Purchase Order where terms may be inconsistent.
This Proposal shall be governed and controlled as to interpretation,enforcement,validity,construction,effect and in all other respects by the laws,
statutes, and decisions of the State of Ohio. Exclusive jurisdiction and venue for any litigation at all related to this in the Franklin County Court of
Common Pleas,Columbus,Ohio,and the parties hereto consent and submit to the general jurisdiction of this court.All of these T&C shall be binding
upon and inure to the benefit of and be enforceable by Sutphen,Purchaser,their successors and assigns.