Form Approved 01.10.2022 Page 1 of 9

CITY OF ST. GEORGE EQUIPMENT/SUPPLIES/MATERIALS PURCHASE AND INSTALLATION

AGREEMENT WITH SELLER'S NAME

THIS AGREEMENT is made and entered into this ________________________ by and between the City of St. George, a Utah municipal corporation, whose address is 175 East 200 North, St.

George, Utah 84770 (“City”) and [Seller's Name], whose address is [Seller's address], (“Seller”).

R E C I T A L S

WHEREAS, City desires to purchase equipment/supplies/materials and have it installed for the purchase of equipment/supplies/materials (hereinafter “Goods”) and the installation of said Goods as outlined in the purchase requisition attached hereto as Exhibit A, (hereinafter “Project”); and

WHEREAS, Seller submitted a proposal dated [Day and Month], 2021, which outlines the equipment/supplies/materials to be purchased and work to be completed, as shown in Exhibit B and incorporated herein; and

WHEREAS, City selected Seller to provide the Goods and services for the Project.

NOW, THEREFORE, for the consideration hereinafter set forth and in accordance with the conditions and representations contained herein, the parties hereby agree as follows:

A G R E E M E N T

1. Recitals. The foregoing recitals are incorporated herein by this reference.

2. The term "Contract Documents" means and includes the following:

a. Seller’s Bid Proposal

b. Subcontractors/Suppliers List

c. Agreement

d. Insurance

e. Performance Bond

f. Payment Bond

g. Certification of Legal Work Status (Seller)

h. Certification of Legal Work Status (Subcontractor)

i. Certification of Legal Work Status (Payment Request)

j. Conditional Waiver and Release Upon Progress Payment (Seller/General Contractor)

k. Conditional Waiver and Release Upon Progress Payment (Subcontractor)

l. Waiver and Release Upon Final Payment (Seller/General Contractor)

m. Waiver and Release Upon Final Payment (Subcontractor) https://www.sgcity.org/

Form Approved 01.10.2022 Page 2 of 9

n. Notice of Award

o. Notice to Proceed

p. Change Order

q. Request for Information

r. Change Order

s. Notice of Substantial Completion

t. Final Acceptance Letter

u. SPECIFICATIONS prepared or issued by (Name) on (Date).

v. ADDENDA

No. , dated , 20___ No. , dated , 20___

3. Project Services Description.

a. Seller will provide the services described in this Agreement.

b. Seller shall furnish all of the materials, supplies, tools, transportation, equipment, labor and other services necessary for the completion of the work described in the Contract Documents.

c. Seller shall provide performance and payment bonds, the Certificate of Legal Work Status for the Seller and all Subcontractors and the certificate of insurance prior to beginning work on the Project.

4. Term of Agreement.

a. This Agreement shall be effective as of the date executed by the parties and shall continue until services provided for in this Agreement have been performed unless otherwise terminated as set forth in this Agreement.

b. Seller agrees to perform services as expeditiously as is consistent with professional skill and care and the orderly progress of the PROJECT. Seller shall perform the services in a timely manner according to the schedule approved by City.

c. Seller shall perform the work according to the schedule upon receipt of a written Notice to Proceed from City. Seller will commence the work required by the Contract Documents within 5 calendar days after the date of the NOTICE TO PROCEED. In the event that performance of the work is delayed by causes beyond the reasonable control of Seller, and without the fault or negligence of Seller, the time for the performance of the work shall be equitably adjusted by written amendment to reflect the extent of such delay.

Seller shall provide City with written notice of delay, including a description of the delay and the steps contemplated or actually taken by Seller to mitigate the effect of such delay.

If the Seller shall fail to complete the work within the contract time, or extension of time granted by the City, then the Seller will pay the City liquidated damages assessed at the rate $1000.00 (one thousand dollars) per day for each calendar day that the Seller is in default.

5. Purchase. Seller hereby sells, conveys, and transfers to City all rights, title, and interest in and to the Goods.

6. Purchase Price, Installation and Payment. City shall pay Seller a total sum of [Amount of purchase] for the Goods and installation of the Goods. City shall pay Seller in full within 30 days of delivery of completion of the work. City shall pay a portion of the purchase price upfront as shown Exhibit A. Seller shall install the Goods to City’s satisfaction and in

Form Approved 01.10.2022 Page 3 of 9 compliance with accepted standards in the industry and in compliance with all laws. Seller shall obtain any permits needed to legally complete the work.

7. Delivery. Time is of the essence in the performance of this Agreement. Seller will arrange for delivery to City the Goods. Seller will deliver the Goods and complete the work by the [Day and Month], 2021, unless the period for completion is extended by City. Seller shall be solely responsible for the Goods until they are installed and accepted by City. City shall have a reasonable opportunity to inspect the Goods after installation to determine if the Goods and the work conform to the requirements of the conditions of this sale. If the City, in good faith, determines that all or a portion of the Goods and the work are non-conforming, Seller shall correct the deficiency within 10 days. If not corrected to the satisfaction of the City, the City may return the Goods to the Seller at no cost to City. City has the right to cancel the order if the Goods are not delivered on time. Seller shall install the Goods immediately upon receipt. Installation shall be performed as expeditiously as is consistent with professional skill and care and orderly progress of the project. Seller shall provide all items necessary to complete the installation.

8. Title to Goods. Seller represents that he owns the Goods free and clear and that such Goods are free of all liens. Seller will defend and indemnify City against a claim that the Goods belong to a third party. Seller shall reimburse City all expenses for defending any such claim.

9. Seller’s Requirements and Assurances.

a. Seller is a professional Seller and Installer licensed by the State of Utah and the City of St.

George or registered as required by law. Seller has all licenses, permits, and approvals that are legally required for Seller to practice its profession and shall keep them in effect at all times during the term of this Agreement.

b. Seller states that it has the necessary knowledge, experience, abilities, skills and resources to perform its obligations under this Agreement, and agrees to perform its obligations under this Agreement in a professional manner, consistent with prevailing industry standards and practices as observed by competent practitioners of the profession in which Seller and its subcontractors or agents are engaged.

c. Seller certifies that it does not and will not during the performance of this contract knowingly employ, or subcontract with any entity which employs workers in violation of 8 USC § 1324a. Seller agrees to require all subcontractors at the time they are hired for this project to sign a Certification of Legal Work Status and submit the Certification to City prior to any work being performed by the subcontractors. Seller agrees to produce, at City’s request, documents to verify compliance with applicable State and Federal laws. If Seller knowingly employs workers or subcontractors in violation of 8 USC § 1324a, such violation shall be cause for unilateral cancellation of the contract between Seller and City.

In addition, Seller may be suspended from participating in future projects with City for a period of one (1) year. In the event this contract is terminated due to a violation of 8 USC § 1324a by Seller or a subcontractor of Seller, Seller shall be liable for any and all costs associated with such termination, including, but not limited to, any damages incurred by City as well as attorney fees. For purposes of compliance, City requires Seller and subcontractors to use E-Verify or other federally accepted forms of verification to verify the employment eligibility of all employees as allowed by law and the E-Verify

Form Approved 01.10.2022 Page 4 of 9 procedures. Seller and subcontractors must maintain authorized documentation of the verification.

d. Seller shall not, either during or after the term of this Agreement, make public any reports or articles, or dispose to any third party any confidential information relative to the work of City or the operations or procedures of City without the prior written consent of City.

e. Seller further agrees that it shall not, during the term of this Agreement, take any action that would affect the appearance of impartiality or professionalism.

f. Seller, by execution of this Agreement, certifies that it does not discriminate against any person upon the basis of race, color, creed, national origin, age, sex, disability, or marital status in its employment practices.

10. Independent Contractor.

a. The City retains and employs Seller, as an independent contractor, to act for and represent it in all matters involved in the performance of work on the PROJECT, subject to the terms, conditions and stipulations as hereinafter stated.

b. It is understood and agreed that Seller will provide the work without supervision from City. Seller is an independent contractor and is not an employee, officer, or agent of City for any purposes related to the performance of this Agreement and is not an employee of City and is not entitled to any benefits from City.

c. Nothing in this agreement shall create nor be construed to constitute a partnership or joint venture between Seller and City.

d. Seller is advised to obtain and maintain in effect during the term of this Agreement medical insurance and disability insurance for all related work performed under this Agreement.

e. Seller acknowledges that City will not withhold any federal, state, or local taxes, including FICA, nor will City provide any unemployment compensation or worker’s compensation coverage. As an independent contractor, Seller shall be responsible for all taxes, worker’s compensation coverage and insurance coverage, and shall hold City harmless and indemnify City from and against any and all claims related to taxes, unemployment compensation, and worker’s compensation.

f. Seller shall secure, at its own expense all personnel required in performing the services under this Agreement. The employees of Seller shall not be considered to be the employees of City nor have any contractual relationship with City. Seller and its employees shall not hold themselves out as, nor claim to be officers or employees of City by reason of this Agreement. The employees of City shall not be considered to be employees of Seller.

g. Neither party has the right to bind or obligate the other in any way. Seller shall not use the name, trademarks, copyrighted materials, or any information related to this Agreement in any advertising or publicity without City’s prior written authorization.

11. Insurance.

a. GENERAL: Seller shall secure and maintain insurance as required by laws and regulations and the terms of this agreement to protect against any liability, loss or expense which occurs or arises as a result of the performance of the services provided pursuant to this agreement or as changed as provided herein. Seller’s insurer must be authorized to do

Form Approved 01.10.2022 Page 5 of 9 business in Utah and must have an A.M. Best rating of A VIII or better at the time this contract is executed.

b. COMMENCEMENT OF WORK: Neither Seller, his Suppliers nor any subcontractors shall enter the site of the work or commence work under this contract before City has received and accepted Certificate(s) of Insurance and Insurance Endorsements, and has issued the Notice to Proceed.

c. INSURANCE CERTIFICATES AND COVERAGE: Insurance certificates shall be issued on all policies required under this contract and shall be signed by an authorized representative of the insurance company. The insurance certificate or the coverage required shall include the following:

i. The name and address of the insured.

ii. City shall be named as a Certificate Holder.

iii. City shall be named as an additional primary insured on the General Liability Certificate with City listed as non-contributory on the General Liability certificate.

iv. The location of the operations to which the insurance applies.

v. The number of the policy and the type or types of insurance in force thereunder on the date borne by the certificate.

vi. The expiration date of the policy and the limit or limits of liability thereunder on the date borne by the certificate.

vii. A statement that all coverage is on an occurrence basis rather than a claims basis.

viii. A provision that the policy or policies will not be cancelled, denied renewal, or reduced in coverage until at least 30 days after written notice has been received by City.

ix. Name, address, and telephone number of the insurance company's agent of process in Utah.

x. Other information to demonstrate compliance with additional requirements stipulated for the various types of insurance coverage.

d. COMPENSATION INSURANCE: Seller shall take out and maintain Worker's Compensation Insurance as required by the Labor Code for all its employees at the site of the work during the life of this contract. Coverage must be provided by a company authorized by the State of Utah to provide Worker’s Compensation Insurance. The insurance shall include:

i. Insurance certificates shall provide a waiver of subrogation by the carrier to Certificate Holder.

ii. Seller shall require each subcontractor to provide Workers Compensation Insurance for its employees unless such employees are covered by Seller.

iii. In the event any class of employees engaged in hazardous work under this contract is not protected by the Worker's Compensation Statute, Seller shall provide, and shall cause its subcontractors to provide, special insurance for the protection of such employees not otherwise protected.

e. COMMERCIAL GENERAL LIABILITY INSURANCE:

i. Seller shall procure, and maintain commercial general liability insurance for the duration of the contract against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder and the results of that work by the Seller, his agents, representatives, employees or

Form Approved 01.10.2022 Page 6 of 9 subcontractors. The insurance shall remain in effect during the term of this agreement and such that claims reported beyond the date of substantial completion of this agreement are covered and during the warranty period, to the extent that it relates to the activities covered by this Agreement, in such manner and amounts as set forth herein.

ii. The Insurance Endorsement shall evidence such provisions.

iii. The minimum commercial general liability insurance shall be as follows:

1. Comprehensive general liability insurance for injuries, including accidental death, to any one person in any one occurrence in an amount not less than $1,000,000.00 Dollars.

2. Comprehensive general liability insurance for injuries, including accidental death, to two or more persons in any one occurrence in an amount not less than $3,000,000.00 Dollars.

3. Broad form property damage insurance in an amount not less than $300,000.00 Dollars.

12. Indemnity and Limitation.

a. Seller shall indemnify, defend, and hold harmless City, its elected officials, officers, employees, and representatives against any and all claims, suits, causes of action, demands, losses, costs, and damages and liability of every kind including but not limited to all fees and charges of attorneys and other professionals and all court or other dispute resolution costs for:

i. death or injuries to persons or for loss of or damage to property caused by, resulting from, or arising out of the intentional, reckless, negligent, or wrongful acts, errors or omissions, or other liability imposed by law of Seller, its officers, employees, agents, or representatives in the performance of services under this Agreement or any subcontractor, any supplier, any person or organization directly or indirectly employed by any of them to perform or furnish any of the work;

ii. Seller’s failure or refusal, whatever the reason, to pay subcontractors or suppliers for Work performed under the Agreement;

iii. claims by any employee of the Seller, any subcontractor, anyone directly or indirectly employed by any of them, or anyone for whose acts any of them may be liable, Seller’s indemnification obligation shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Seller or any subcontractor under workmen's compensation acts, disability benefit acts or other employee benefits acts.

b. City shall give Seller prompt written notice of any such claims or suits filed against City arising out of the services provided under this Agreement. Seller agrees to defend against any claims brought or actions filed against City arising out of the services provided under this Agreement, whether such claims or actions are rightfully or wrongfully brought or filed. In the case when a claim is brought or an action filed with respect to the subject of indemnity herein, Seller agrees that City may employ a separate attorney to appear and defend the claim or action on its own behalf at the expense of Seller. Seller shall be responsible for all costs associated with any claim, demand, action, suit, or judgment including attorney fees for which they indemnify or defend City.

Form Approved 01.10.2022 Page 7 of 9

c. The insurance requirements in this agreement shall not be construed as limiting Seller’s liability. Irrespective of the requirements for Seller to carry insurance as provided herein, insolvency, bankruptcy, or failure of any insurance company to pay all claims accruing shall not be held to relieve Seller of any obligations under this agreement.

13. Warranties. Seller warrants all Goods and work for the Warranty Period shown in Exhibit A.

The warranty period begins on the date the Goods are installed and accepted by City.

14. Infringement Indemnity. Seller will defend and indemnify City against a claim that the Goods infringe a copyright or patent. City shall be reimbursed all expenses for defending any such claim.

15. Compliance with Applicable Laws. Seller expressly acknowledges and agrees that nothing in this Agreement shall be deemed to relieve Seller from any obligation to comply with all applicable requirements of City including the payment of fees and compliance with all other applicable ordinances, resolutions, regulations, policies and procedures of City, except as modified, waived or declared in this Agreement. Seller shall comply with all federal, state, and local laws, regulations, and ordinances.

16. Compliance with Public Contract Boycotting Restrictions. Seller certifies it is in compliance with the public contract boycotting restrictions set forth in Utah Code § 63G-27-201 and agrees not to engage in any such restricted boycotting for the duration of this Agreement, and to notify the City in writing if it begins engaging in an economic boycott.

17. Conflicts. In the event of a conflict between this Agreement and any other documents with Seller, this Agreement shall govern.

18. No Waiver. The failure of either Party to enforce any of this Agreement’s provisions shall not be construed to be a waiver of the rights of such party to enforce such provisions.

19. Notices. All notices required or permitted to be made by either party in connection with this Agreement shall be in writing, and shall be deemed to have been duly given: (a) five (5) business days after the date of mailing if sent by U.S. mail, postage prepaid, (b) when transmitted if sent by facsimile, provided a confirmation of transmission is produced by the sending machine and a copy of such facsimile is promptly sent by another means specified in this Section; or (c) when delivered if delivered personally or sent by express courier service. All notices shall be sent to the other party at its address as set forth below unless written notice is given by either party of a change of address:

City of St. George Seller: [Seller's Name/company's Name] Attn: [Contact's Name] Attn: [Contacts Name] 175 East 200 North [Seller's Address] St. George, Utah, 84770 [Seller's City, State, Zip Code]

20. Governing Law and Venue. This Agreement shall be construed according to the laws of the State of Utah. The parties agree that venue for all legal actions, unless they involve a cause of action with mandatory federal jurisdiction, shall be the Fifth District Court for the State of Utah. The parties further agree that the Federal District Court for the District of Utah shall be the venue for any cause of action with mandatory federal jurisdiction. The parties shall have all rights and remedies provided under applicable Federal or State law for a breach or threatened breach of this Agreement. These rights and remedies shall not be mutually exclusive, and the exercise of one or more of these rights and remedies shall not preclude

Form Approved 01.10.2022 Page 8 of 9 the exercise of any other rights and remedies. Each party agree that damages at law may be an inadequate remedy for a breach or threatened breach of any provision hereof and the respective rights and obligations of the parties hereunder shall be enforceable by specific performance, injunction, or other equitable remedy. Nothing in this Agreement shall be construed to waive the sovereign immunity of the government parties.

21. Construction. This Agreement has been reviewed and revised by legal counsel for all the parties and no presumption or rule that ambiguities shall be construed against the drafting party shall apply to the interpretation or enforcement of this Agreement.

22. Legal Fees. Should any party default on any of the covenants or agreements contained herein, the defaulting party shall pay all costs and expenses, (excluding reasonable attorney’s fees,) which may arise or accrue from enforcing this Agreement or in pursuing any remedy provided hereunder or by applicable law, whether such remedy is pursued by filing a lawsuit or otherwise. This obligation of the defaulting party to pay costs and expenses includes, without limitation, all costs, and expenses, (excluding reasonable attorney’s fees) including appeals and bankruptcy proceedings. If either party commences legal action to interpret any term of this agreement, the prevailing party shall be entitled to recover all reasonable fees (excluding attorney’s fees), court costs, and any other costs incurred in connection with such action. The parties agree that they shall each pay their own attorney’s fees.

23. A ssignment. Neither this Agreement nor any of the provisions, terms or conditions hereof can be assigned, sublet, sold, transferred or otherwise disposed of to any other party, individual or entity without assigning the rights and the responsibilities under this Agreement and without prior written consent of City, which consent shall not be unreasonably withheld.

24. B inding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors, and assigns, but shall not inure to the benefit of any third party or other person.

25. No Joint Venture, Partnership or Third Party Rights. It is not intended by this Agreement to, and nothing contained in this Agreement shall, create any partnership, joint venture, or other arrangement between the parties. No term or provision of this Agreement is intended to or shall, be for the benefit of any person, firm, organization or corporation not a party hereto, and no such other person, firm, organization or corporation shall have any right or cause of action hereunder.

26. Integration. This Agreement contains the entire Agreement with respect to the subject matter hereof and integrates all prior conversations, discussions or understanding of whatever kind or nature and supersedes and replaces all terms and conditions of any prior agreements, arrangements, negotiations, or representations, written or oral, with respect to this matter.

27. Severability. If any part or provision of this Agreement shall be determined to be unconstitutional, invalid or unenforceable by a court of competent jurisdiction, then such a decision shall not affect any other part or provision of this Agreement except that specific provision determined to be unconstitutional, invalid or unenforceable. If any condition, covenant, or other provision of this Agreement shall be deemed invalid due to its scope or

Form Approved 01.10.2022 Page 9 of 9 breadth, such provision shall be deemed valid to the extent of the scope or breadth permitted by law.

28. Survival. It is expressly agreed that the terms, covenants, and conditions of this Agreement shall survive any legal act or conveyance required under this Agreement.

29. Headings. The section and other headings in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.

30. Counterparts. This Agreement may be executed in counterparts each of which shall be an original and shall constitute one and the same agreement.

31. Authority of Parties. The parties executing this Agreement hereby warrant and represent that they are duly authorized to do so in the capacity stated and that this Agreement constitutes a valid and binding Agreement.

IN WITNESS WHEREOF, the parties have executed this agreement the day and year first above written.

CITY: CITY OF ST. GEORGE SELLER: (Company Name)

Michele Randall, Mayor (Legally Authorized Signer's Name)

Attest: Approved as to form:

CITY ATTORNEY’S OFFICE

Christina Fernandez, City Recorder