Analyzing RFP Bids
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sec489_r2_rfp_phoenix_week2.pdf
CITY OF PHOENIX Law Department
REQUEST FOR QUALIFICATIONS (RFQ) 15-LAW-002
INVESTIGATION SERVICES
DEADLINE FOR RECEIVING PROPOSAL Monday, November 9, 2015 at 3:00 p.m. MST
City of Phoenix Law Department 200 W. Washington Street, Suite 1300
Phoenix, AZ 85003
DEADLINE FOR WRITTEN QUESTIONS Questions regarding this RFQ should be submitted to Monica Gonzalez via email at [email protected], no later than October 14, 2015, by 3:00 p.m., MST. Answers will be provided in the form of addenda and posted to the RFQ Internet site by October 16, 2015.
CITY OF PHOENIX RFQ NO. 15-LAW-002
INVESTIGATION SERVICES
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TABLE OF CONTENTS
SECTION PAGE
SECTION I – BACKGROUND .............................................................................................................. 4 A. Introduction ...........................................................................................................4
SECTION II – SOLICITATION TRANSPARENCY POLICY ................................................................ 4 SECTION III – RFQ RESPONSE INFORMATION............................................................................... 5
A. RFQ Response Submittal .....................................................................................5 B. Scope of Work ......................................................................................................6 C. Special Requirements ...........................................................................................8 D. Qualification Criteria..............................................................................................8 E. Submittal Instructions............................................................................................9 F. Evaluation and Selection Process.......................................................................10 G. General Information ............................................................................................10 H. Protests ...............................................................................................................10 I. Agreement with Selected Respondent ................................................................11 J. Reservation of Rights by City ..............................................................................11 K. Right to Disqualify ...............................................................................................11 L. Applicable Law ....................................................................................................11 M. Organization Employment Disclaimer .................................................................12 N. Respondent(s) Incurred Costs ............................................................................12 O. Violations Disclosure...........................................................................................12
SECTION IV – CONTRACT TERMS AND CONDITIONS ................................................................. 12 A. Payment ..............................................................................................................12 B. Invoices ...............................................................................................................13 C. Reimbursable Expenses .....................................................................................13 D. Indemnification clause: .......................................................................................13 E. Insurance requirements: .....................................................................................14 F. Approval ..............................................................................................................16 G. Contact With Third Parties ..................................................................................16 H. Independent Contractor Status; Employment Disclaimer....................................16 I. Legal Worker Requirements ...............................................................................16 J. Confidentiality and Data Security ........................................................................17 K. Equal Employment Opportunity Requirement .....................................................17 L. SBE/ DBE Utilization ...........................................................................................18 M. Audit/Records......................................................................................................18 N. Compliance With Laws .......................................................................................18 O. Contractor and Subcontractor Worker Background Screening ...........................18 P. Contract Worker Access Controls, Badge and Key Access Requirements.........19 Q. Contractor’s Default; Liquidated Damages; Reservation of Remedies for Material
Breach.................................................................................................................20 R. Amendments .......................................................................................................21 S. Non-Assignability ................................................................................................21 T. No Oral Alterations..............................................................................................21 U. Notices ................................................................................................................21
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V. Integration ...........................................................................................................22 W. Governing Law; Forum; Venue ...........................................................................22 X. Fiscal Year Clause ..............................................................................................22 Y. Responsibility for Compliance with Legal Requirements ....................................23 Z. Transactional Conflicts of Interest.......................................................................23 AA. Non-waiver of Liability .........................................................................................23 BB. Fund Appropriation Contingency.........................................................................23 CC. Termination Or Suspension Of Services .............................................................23 DD. Professional Competency ...................................................................................24 EE. Specific Performance ..........................................................................................24 FF. Force Majeure .....................................................................................................25 GG. Documentation ....................................................................................................25 HH. Release Of Information - Advertising And Promotion .........................................26 II. Conflicts Of Interest ............................................................................................26 JJ. Claims Or Demands Against The City.................................................................27 KK. Waiver Of Claims For Anticipated Profits............................................................27 LL. Continuation During Disputes .............................................................................27 MM. Third Party Beneficiary Clause............................................................................27
ATTACHMENTS
EXHIBIT A – City of Phoenix Administrative Regulation 3.41 – Business, Conference and Training Travel and Related Expenses
EXHIBIT B*- Business Certification and Other Information
*Note: Exhibit B must be returned with Submittal.
CITY OF PHOENIX RFQ NO. 15-LAW-002
INVESTIGATION SERVICES
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SECTION I – BACKGROUND
A. Introduction The City of Phoenix is requesting detailed information concerning the qualifications of
individuals and firms willing to provide investigation services according to the provisions, specifications and instructions set forth in this Request for Qualifications (RFQ).
The City of Phoenix will establish a list of qualified individuals and firms to perform investigation services for various departments of the City of Phoenix on an as-needed basis. The list shall be in effect from January 1, 2016 until December 31, 2017, and may, in the sole discretion of the City Attorney, be updated with additional vendors after one year.
Investigation services may be needed in the following areas but not limited to:
Medical malpractice issues Highway design issues Employment issues Auto accidents Asset investigation Environmental liability issues Fraud claims investigations Licensing and titling issues Skip tracing to locate:
o tenants o witnesses o victims o property interest holders o others
Flood damage claims Slip and fall claims Cases involving City of Phoenix departments, commissions, boards and
agencies Human Resources issues Discrimination claims
The City Attorney will enter into contracts with qualified individuals or firms. However, the execution of a contract does not guarantee that any case or matter, or any minimum number of cases or matters, will be assigned to any particular individual or firm. The City will pay not pay any costs incurred in preparation of a submittal to this request or in subsequent negotiations.
SECTION II – SOLICITATION TRANSPARENCY POLICY Beginning on the date the solicitation is issued and until the date the contract is awarded
or the solicitation withdrawn, all persons or entities that respond to the solicitation for court reporting services, including their employees, agents, representatives, proposed partner(s), subcontractor(s), joint venturer(s), member(s), or any of their lobbyists or attorneys, (collectively, the Proposer) must refrain, from any direct or indirect contact with any person
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(other than the designated contracting officer) who may play a part in the selection process, including members of the evaluation panel, the City Manager, Assistant City Manager, Deputy City Managers, Department heads, the Mayor and other members of the Phoenix City Council. As long as the solicitation is not discussed, Proposers may continue to conduct business with the City and discuss business that is unrelated to the solicitation with the City staff.
Proposers may discuss their proposal or the solicitation with the Mayor or one or more members of the Phoenix City Council, provided such meetings are scheduled through Brad Holm, City Attorney, conducted in person at 200 West Washington, Phoenix, Arizona 85003, and are posted as open meetings with the City Clerk at least twenty-four (24) hours prior to the scheduled meetings. The City Clerk will be responsible for posting the meetings. The posted notice shall identify the participants and the subject matter, as well as invite the public to participate.
With respect to the selection of the successful Proposer/Bidder, the City Manager and/or City Manager's Office will continue the past practice of exerting no undue influence on the process. In all solicitations of bids and proposals, any direction on the selection from the City Manager and/or City Manager's Office and Department Head (or representative) to the proposal review panel or selecting authority must be provided in writing to all prospective proposers.
This policy is intended to create a level playing field for all Proposers, assure that contracts are awarded in public, and protect the integrity of the selection process. PROPOSERS THAT VIOLATE THIS POLICY SHALL BE DISQUALIFIED.
SECTION III – RFQ RESPONSE INFORMATION A. RFQ Response Submittal 1. Submittals shall be received no later than 3:00 p.m., Monday, November 9, 2015 at the following location:
Monica Gonzalez Phoenix City Attorney’s Office 200 West Washington, 13
th Floor
Phoenix, AZ 85003-1611 (602) 262-6761
2. Firms must submit an original and three (3) copies of the RFQ response (an electronic submission must also be sent to [email protected]).
3. In order to do business with the City, Contractor must comply with Phoenix City Code, 1969, Chapter 18, Article V, as amended, Equal Employment Opportunity Requirements. Contractor may direct any questions in regard to these requirements to the Equal Opportunity Department, (602) 262-6790.
4. The City extends to each individual, firm, vendor, supplier, contractor and subcontractor an equal economic opportunity to compete for City business and strongly encourages voluntary utilization of small and/or disadvantaged businesses to reflect both the industry and community ethnic composition. The use of such businesses is encouraged whenever practical.
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5. A response to this solicitation is an offer to contract with the City based upon the terms, conditions, and specifications contained in this solicitation. Such a proposal does not become a contract until it is executed by the City Attorney. The terms, conditions and specifications contained in this solicitation, unless any of the terms, conditions, or specifications is modified by an addendum or contract amendment, and the proposer’s response shall form the basis for a contract between the City and the Contractor.
The information in this RFQ is not intended to completely define the proposed contractual relationship to be entered into by the City and the successful Respondent. Respondent is advised to read the contract terms and conditions (Section III) carefully. These contract terms may be amended at the sole discretion of the City at any time during the RFQ process and prior to execution.
6. It is anticipated that many non-exclusive contracts will result from this process. Typical contracts are for a period of two (2) years and may contain one (1) year options for renewal, up to a maximum of five (5) years. The option to renew the contract for an additional year is at the sole discretion of the City Attorney and will be exercised only if it is in the City’s best interest to do so.
B. Scope of Work The City desires to engage qualified offerors to provide investigative services to the City of Phoenix on an as needed assignment basis.
1. The Offeror shall list in their proposal the areas in which they are qualified, including, but not limited to:
Medical malpractice issues Highway design issues Employment issues Auto accidents Asset investigation Environmental liability issues Fraud claims investigations Licensing and titling issues Skip tracing to locate:
o tenants o witnesses o victims o property interest holders o others
Flood damage claims Slip and fall claims Cases involving City of Phoenix departments, commissions, boards and
agencies Human Resources issues Discrimination claims
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2. Qualified offerors shall be capable, at a minimum, of providing the following services:
Gather pertinent evidence and documents from each individual involved, and from the appropriate files. The investigator will also be expected to interpret the documents and/or records obtained, and use them accordingly;
Gather evidence, documents, and obtain copies of files from all other sources of information including the courts, recorder’s office, assessors, drivers licenses, etc.;
Interview the parties involved. The interviews shall include but not be limited to: written, recorded, or paraphrased reports depending upon the instructions given;
Take videotapes, prepare diagrams, and photographs, all of which may be obtained during surveillance;
Provide typed reports per specifications agreed upon by the City Attorney;
Access computerized programs for locating witnesses or other parties involved;
Interact with experts in all fields to enhance investigation, follow up on suggestions, and further develop new theories;
Read and interpret state statutes, agency rules and regulations, and pertinent case law that relates to the facts;
Gather physical evidence and mark and preserve the evidence for later testimony;
Understand the theories of law that are claimed applicable to the matter under investigation;
Maintain adequate file documentation to insure that all guidelines/standards are being met;
Prepare written reports according to the attorneys’ instructions, maintain all confidentialities, and work product protection according to the state statutes, and court rules of procedure, and case law; and
Prepare scaled diagrams of vehicles and intersections in a CAD format.
Abide by all ethical requirements imposed on attorneys.
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C. Special Requirements 1. Key Personnel: It is essential that the Respondent provide an adequate staff of experienced personnel, capable of and devoted to the successful accomplishment of work to be performed for the City of Phoenix Law Department. Accordingly, the Respondent may be required by the Law Department to assign specific individuals to the key positions. Changes in key personnel will be required to be stated in reports (which include resumes) to the Law Department at the point in time of any change of key personnel. Key personnel are defined as those parties providing full-time effort for the Respondent. Changes in overflow personnel need not be reported.
2. Suspension or Debarment Status: If the Respondent to this RFQ has been decertified, suspended or otherwise lawfully precluded from participating in any public procurement activity with any federal, state or local government, the Respondent must include a letter with its response setting forth the name and address of the governmental unit, the effective date of the suspension or decertification, the duration of the suspension or decertification, and the relevant circumstances relating to the suspension or decertification. Failure to supply the letter or to disclose in the letter all pertinent information regarding a suspension or debarment shall result in rejection of the Respondent’s response or removal of Respondent from the City's approved Qualified Vendors List.
3. Suspension or Decertification: The Respondent to this RFQ must certify that the Respondent has not been debarred, suspended or otherwise lawfully precluded from participating in any public procurement activity with any federal, state or local government. Failure to disclose all pertinent information about a debarment or suspension shall result in rejection of the Respondent’s response or removal of Respondent from the City's approved Court Reporter List.
4. Licenses: Respondent must maintain, in current status, all federal, state, and local licenses and permits required for the operation of the business conducted by the Respondent.
5. Respondent Obligations: All employees furnished by Respondent under any contract resulting from this RFQ shall be considered employees of Respondent and Respondent shall be responsible for payments of all workers’ compensation claims, unemployment compensation claims, unemployment disability claims or claims under similar laws. Respondent will be responsible for providing all health, accident, liability and other appropriate insurance for Respondent’s employees in connection with the performance of service for the City of Phoenix.
6. Confidentiality of Records: Respondent must establish and maintain procedures and controls that are acceptable to the City for the purpose of assuring that no information contained in its records or obtained from the City or from others in performance of the contract shall be used or disclosed by it, its agents, officers, or employees, except as required to efficiently perform services for the City. Persons requesting such information shall be referred to the City of Phoenix Law Department. Respondent also must agree that any information pertaining to individual persons shall not be divulged other than to employees or officers of Respondent as needed for the performance of services for the City, unless otherwise agreed to in writing by the Law Department.
D. Qualification Criteria Respondents shall provide:
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1. General background information with respect to the firm with special focus on primary services provided, areas of specialization and relevant experience:
a. the size and experience of the firm; b. the overall areas of service of the firm, including fields specialized or particularly
experienced in.
2. For each person who may be assigned on a City matter, the specific information with respect to:
1. the number of years the individual has been working professionally in the legal field, and in which particular areas of law;
2. their position in the firm hierarchy for billing purposes (e.g., Lead Investigator, Junior Investigator, etc.);
3. professional certifications and degrees; 4. references from current and/or former clients.
E. Submittal Instructions The Respondent’s submittal for each area shall include the following:
1. Response Submittal: Respondent’s submittal shall be submitted in an original in an 8 ½ x 11-inch loose-leaf three-ring binder, plus three (3) copies not in binders. A letter of submission including the name of the person to be contacted shall be the first page of the response. Please indicate the legal support service(s) to which you are responding. The package shall be marked on the outside with “Submittal, Investigation Services, RFQ 15-LAW- 002” and contain the submitter’s name.
2. Response Format: Each response shall be submitted in the format specified in the RFQ. The original copy of the response should be clearly labeled "ORIGINAL." The material should be in sequence and related to the RFQ. The City will not provide any reimbursement for the cost of developing or presenting responses to this RFQ. Failure to include the requested information may have a negative impact on the evaluation of the Respondent’s response. The response shall include at least the following information in the order specified below with sections separated by tabs:
3. Price Proposal: Pricing for services must be itemized by service on an hourly basis. Charges that are not calculated on an hourly basis must be separately itemized. Price proposals shall be irrevocable offers for 90 days after the response due date.
4. Experience/Reliability of Firm(s): The response shall contain the following:
1. Information on the Respondent’s related experience. This shall include specific information on the type of services provided, the dates of performance, demonstrated timeliness of similar work completion, and experience.
2. A list of references. References must be verifiable and must be able to comment on the Respondent’s related experience. The Respondent must submit three (3) similar-type professional service references.
3. If the Respondent is a firm, the Respondent shall provide an organizational chart showing the staffing and lines of authority for the personnel to be used in the project. The relationship of the project leader to management and to support
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personnel should be clearly illustrated.
5. Experience/Expertise of Assigned Personnel: The response shall contain:
1. A resume and data related to previous work assignments as may relate to this RFQ for each of the key personnel to be assigned to the project.
2. The Respondent must list all subcontractors, if applicable. 3. The response may include any additional information that reflects on the
Respondent’s ability to perform the required services.
6. Ownership: The response shall indicate whether Respondent is certified by the City of Phoenix as a Minority or Women Owned Business Enterprise. For information on how to be certified, please contact the City of Phoenix Equal Opportunity Department.
7. Submittal Authorization: The written Submittal shall be signed by an individual authorized to bind the respondent. The submittal shall provide the name, email, title, address and telephone number of individuals with authority to contractually bind the company and who may be contacted during the period of the contract.
F. Evaluation and Selection Process A Selection Committee established by the City Attorney will evaluate all Responses to
the RFQ. The Selection Committee will develop a recommended Qualified Vendor List (hereinafter QVL) based upon the responses to the RFQ and the need for court reporting services. The City Attorney may immediately select specific firms and/or individuals from the QVL and enter into contracts with them to address current and pending matters. Price will not be the controlling factor in making a selection but will be given due consideration. Additional selections will be made as the need for such services develops. However, the execution of a contract does not guarantee that any case or any minimum number of cases will be assigned to any particular firm. Firms not selected for the QVL will receive a Notice of Rejection.
G. General Information If you have any questions concerning this RFQ, please contact: e-mail: [email protected] phone: (602) 262-6761
H. Protests Protests of the City’s decision shall be made in writing and received by the City within
ten (10) days from the date on which the notice of rejection is mailed or faxed to the Respondent. Protests shall be delivered to:
Mike Roberts City of Phoenix City Attorney’s Office 200 West Washington Street, 13
th Floor
Phoenix, Arizona 85003-1611 P: (602) 262-6761; F: (602) 534-9866
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I. Agreement with Selected Respondent 1. The City will require the selected Respondent to participate in negotiations and to
submit such cost, technical or other revisions of the submittals as may result from negotiations. The City shall draft all final contracts and documents that result from this RFQ.
2. The language contained in this RFQ and the Respondent's statement of qualifications will form the basis of any resulting Contract. However, this RFQ does not commit the City to enter into a Contract, to pay any costs incurred in the preparation of a submittal to this request or in subsequent negotiations, or to procure a contract for the project(s).
J. Reservation of Rights by City 1. The City is not obligated to accept any submittal or to negotiate with any Respondent.
The City reserves the right to accept submittals which are deemed most favorable and in the best interests of the City after all submittals have been examined and canvassed, to reject any or all submittals, and to be the sole judge of the best Respondent suited for the City.
2. The issuance of this RFQ and the acceptance of an RFQ response does not constitute an agreement by the City that any contract shall actually be entered into by the City. The City expressly reserves the right to:
4. Waive any immaterial defect or informality in any RFQ response or proposal procedure.
5. Reject any or all RFQ responses. 6. Reissue a RFQ. 7. Procure any service by any other means. 8. Request additional information and data from any or all companies. 9. Negotiate with any qualified Respondent.
3. The City may confirm any information provided in the Respondent’s submittal, or inspect any of the Respondent’s facilities that would be utilized in connection with performing services under any resulting contract.
K. Right to Disqualify The City reserves the right to disqualify any Respondent who fails to provide information
or data requested or who provides materially inaccurate or misleading information or data. The City further reserves the right to disqualify any Respondent on the basis of any real or apparent conflict of interest that is disclosed by the Respondent or any other data or information available to the City. This disqualification is at the sole discretion of the City. By submission of an RFQ response hereunder, the Respondent waives any right to object now or at any future time, before any body or agency including, but not limited to, the City Council of the City or any court as to the exercise by the City of such right to disqualify or as to any disqualification by reason of real or apparent conflict of interest determined by the City. The City reserves the right to replace the disqualified Respondent.
L. Applicable Law Any and all disputes arising under any contract or out of the RFQ herein called for, shall
be governed according to the laws of the State of Arizona, and the Respondent submitting an
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RFQ response agrees that the venue for any such action brought to enforce provisions of the Contract shall be in the State of Arizona.
M. Organization Employment Disclaimer Any contract entered into as a result of this RFQ shall set forth the relationship between
the City and the Respondent, and the rights and obligations of the parties shall only be those expressly set forth therein. The Respondent will be required to agree as part of any contract entered into as the result hereof that no person supplied by it in the performance of the contract is an employee of the City, and further agrees that no rights of the City's Civil Service, Retirement or Personnel Rules accrue to any such persons. Any contracting party shall have the total responsibility for all salaries, wages, bonuses, retirement, withholdings, worker's compensation and occupational disease compensation insurance, unemployment compensation, other benefits and taxes and premiums appurtenant thereto concerning such persons provided by such Respondents in the performance of the contract, and shall save and hold the City harmless with respect thereto.
N. Respondent(s) Incurred Costs Each Respondent will be responsible for all costs incurred in or preparing for a response
to this RFQ. All materials and documents submitted by the Respondent in response to this RFQ or any additional requests for materials and documents made by the City for evaluation pursuant to this RFQ will become the property of the City and will not be returned. The selected Respondents shall be responsible for all costs incurred by it during negotiations.
O. Violations Disclosure 1. Each time the Respondents enter into a contract with the City, the Respondents shall notify the City and specifically identify any notices from any regulatory authority with respect to any violation or alleged violation of any law or regulation by the Respondents or any subcontractor.
2. Further, the Respondents must immediately notify the City of any inspection, audit, or review by any regulatory authority of records or procedure of the Respondents or its subcontractors and provide the City with a copy of any written findings prepared by such regulatory authority in connection with such inspection, audit, or review.
SECTION IV – CONTRACT TERMS AND CONDITIONS Included in Section III are sample terms and conditions upon which a contract will be drafted for those individuals or firms that are selected to do business with the City. Respondents to the RFQ should determine that they can adhere to these terms and conditions prior to responding to the RFQ.
A. Payment The total amount to be remitted by the City to Contractor for all Services satisfactorily
performed under this Agreement may include reasonable and necessary travel expenses, if approved in advance by the City and included in the Fee Schedule. Under this Agreement, City will pay for services at the rate(s) specified in the Fee Schedule, with no additional charges for overhead, benefits, local travel or administrative support. Payments shall be made in proportion to the services performed.
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B. Invoices Contractor must submit invoices monthly or as incurred. Requests for payment must be
submitted with documentation of dates and hours worked, hourly rate charged, and a detailed description of the Services performed. Invoices must be accompanied by itemized receipts. The invoice shall be submitted free of mathematical errors and/or missing supporting documentation. All appropriate documentation that support the charges reflected in the invoice must be provided. Upon finding of an error and/or missing documentation, the City may return the invoice to the Contractor. Contractor must promptly resubmit the revised invoice to the City. Each revised invoice must document the date that the revised invoice is submitted to the City. Failure of City to identify an error does not waive any of the City’s rights.
C. Reimbursable Expenses Generally, Reimbursable Expenses include:
1. Business Expenses: Receipts for business expenses must be submitted with all requests for payment. Business expenses that require receipts include, but are not limited to express mail; delivery services; messenger services; and outside printing.
2. Office Expenses: Requests for reimbursement of office expenses must be submitted with a description of the task, which includes how the expense was incurred. Examples of office expenses needing documentation include, but are not limited to telephone; internal printing /copies (not to exceed 0.15 cents per page for black & white copies); postage; facsimiles (long distance charges only); and supplies.
3. Travel Expenses: Travel expenses must be approved in advance by the City and must be included in the Fee Schedule. Contractor must comply with City of Phoenix Administrative Regulation 3.41 – Business, Conference and Training Travel and Related Expenses, revised September 1, 2006, as it may be amended, as to the eligible and ineligible expenses for reimbursement and required documentation as set forth in Exhibit A attached hereto and incorporated herein.
Contractor must demonstrate good judgment when incurring costs that are considered a Reimbursable Expense while conducting business for the City. All Reimbursable Expenses shall be reasonable and prudent.
D. Indemnification clause: Contractor must indemnify, defend, save and hold harmless the City of Phoenix and its
officers, officials, agents, and employees (“Indemnitee”) from and against any and all claims, actions, liabilities, damages, losses, or expenses (including court costs, attorneys’ fees, and costs of claim processing, investigation and litigation) (“Claims”) caused, or alleged to be caused, in whole or in part, by the negligent or willful acts or omissions of Contractor or any of its owners, officers, directors, agents, employees or subcontractors in connection with this Contract. This indemnity includes any Claims arising out of or recovered under the Workers’ Compensation Law or arising out of the failure of such Contractor to conform to any federal, state or local law, statute, ordinance, rule, regulation or court decree. It is the specific intention
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of the parties that Indemnitee will, in all instances, except for Claims arising solely from the negligent or willful acts or omissions of the Indemnitee, be indemnified by Contractor from and against any and all claims. Contractor will be responsible for primary loss investigation, defense and judgment costs where this indemnification is applicable. In consideration of the award of this contract, Contractor agrees to waive all rights of subrogation against the City, its officers, officials, agents and employees for losses arising from the work performed by the Contractor for the City.
E. Insurance requirements: Contractor and subcontractors shall procure and maintain until all of their obligations have
been discharged, including any warranty periods under this Contract are satisfied, insurance against claims for injury to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Contractor, his agents, representatives, employees or subcontractors.
The insurance requirements herein are minimum requirements for this Contract and in no way limit the indemnity covenants contained in this Contract. The City in no way warrants that the minimum limits contained herein are sufficient to protect the Contractor from liabilities that might arise out of the performance of the work under this contract by the Contractor, his agents, representatives, employees or subcontractors and Contractor is free to purchase additional insurance as may be determined necessary.
A. MINIMUM SCOPE AND LIMITS OF INSURANCE: Contractor shall provide coverage with limits of liability not less than those stated below.
An excess liability policy or umbrella liability policy may be used to meet the minimum liability requirements provided that the coverage is written on a “following form” basis.
1. Commercial General Liability – Occurrence Form a. Policy shall include bodily injury, property damage and broad form contractual liability
coverage. General Aggregate $2,000,000 Products – Completed Operations Aggregate $1,000,000 Personal and Advertising Injury $1,000,000 Each Occurrence$1,000,000
b. The policy shall be endorsed to include the following additional insured language: "The City of Phoenix shall be named as an additional insured with respect to liability arising out of the activities performed by, or on behalf of the Contractor".
2. Worker's Compensation and Employers' Liability Workers' Compensation Statutory Employers' Liability Each Accident $100,000 Disease – Each Employee $100,000 Disease – Policy Limit $500,000
a. Policy shall contain a waiver of subrogation against the City of Phoenix. b. This requirement shall not apply when a contractor or subcontractor is exempt under
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A.R.S. 23-901, AND when such contractor or subcontractor executes the appropriate sole proprietor waiver form.
3. Professional Liability (Errors and Omissions Liability) The policy shall cover professional misconduct or lack of ordinary skill for those positions defined in the Scope of Services of this contract.
Each Claim $1,000,000 Annual Aggregate $2,000,000
In the event that the professional liability insurance required by this Contract is written on a claims-made basis, Contractor warrants that any retroactive date under the policy shall precede the effective date of this Contract; and that either continuous coverage will be maintained or an extended discovery period will be exercised for a period of two (2) years beginning at the time work under this Contract is completed.
B. ADDITIONAL INSURANCE REQUIREMENTS: The policies shall include, or be endorsed to include, the following provisions:
1. On insurance policies where the City of Phoenix is named as an additional insured, the City of Phoenix shall be an additional insured to the full limits of liability purchased by the Contractor even if those limits of liability are in excess of those required by this Contract.
2. The Contractor's insurance coverage shall be primary insurance and non-contributory with respect to all other available sources.
C. NOTICE OF CANCELLATION: Each insurance policy required by the insurance provisions of this Contract shall provide the required coverage and shall not be suspended, voided or canceled except after thirty (30) days prior written notice has been given to the City, except when cancellation is for non-payment of premium, then ten (10) days prior notice may be given. Such notice shall be sent directly to the City of Phoenix representative for this contract.
D. ACCEPTABILITY OF INSURERS: Insurance is to be placed with insurers duly licensed or authorized to do business in the state of Arizona and with an “A.M. Best” rating of not less than B+ VI. The City in no way warrants that the above-required minimum insurer rating is sufficient to protect the Contractor from potential insurer insolvency.
E. VERIFICATION OF COVERAGE: Contractor shall furnish the City with certificates of insurance (ACORD form or equivalent approved by the City) as required by this Contract. The certificates for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf.
1. All certificates and any required endorsements are to be received and approved by the City before work commences. Each insurance policy required by this Contract must be in effect at or prior to commencement of work under this Contract and remain in effect for the duration of the project. Failure to maintain the insurance policies as required by this Contract or to provide evidence of renewal is a material breach of contract.
2. All certificates required by this Contract shall be sent directly to the City of Phoenix
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representative for this contract. The City project/contract number and project description shall be noted on the certificate of insurance. The City reserves the right to require complete, certified copies of all insurance policies required by this Contract at any time. DO NOT SEND CERTIFICATES OF INSURANCE TO THE CITY'S RISK MANAGEMENT DIVISION.
F. Approval Any modification or variation from the insurance requirements in this Contract shall be
made by the Law Department, whose decision shall be final. Such action will not require a formal Contract amendment, but may be made by administrative action.
G. Contact With Third Parties Contractor or its subcontractors must not contact third parties to provide any information
in connection to the Services provided under this Agreement without the prior written consent of the City. Should Contractor or its subcontractors be contacted by any person requesting information or requiring testimony relative to the Services provided under this Agreement or any other prior or existing Agreement with the City, Contractor or its subcontractors shall promptly inform the City giving the particulars of the information sought and shall not disclose such information or give such testimony without the written consent of the City or court order. The obligations of Contractor and its subcontractors under this Section shall survive the termination of this Agreement.
Contractor agrees that the requirements of this Section shall be incorporated into all subcontractor agreements entered into by the Contractor. It is further agreed that a violation of this Section shall be deemed to cause irreparable harm that justifies injunctive relief in court. A violation of this Section may result in immediate termination of this Agreement without notice.
H. Independent Contractor Status; Employment Disclaimer a. The parties agree that Contractor is providing the Services under this Agreement on a
part-time and/or temporary basis and that the relationship created by this Agreement is that of independent contractors. Neither Contractor nor any of Contractor’s agents, employees or helpers shall be deemed to be the employee, agent, or servant of the City. The City is only interested in the results obtained under this Agreement; the manner, means and mode of completing the same are under the sole control of Contractor.
b. This Agreement is not intended to constitute, create, give rise to, or otherwise recognize a joint venture, partnership or formal business association or organization of any kind, and the rights and obligations of the parties shall be only those expressly set forth in this Agreement. The parties agree that no individual performing under this Agreement on behalf of Contractor will be considered a City employee, and that no rights of City Civil Service, City retirement or City personnel rules shall accrue to such individual. Contractor shall have total responsibility for all salaries, wages, bonuses, retirement, withholdings, worker’s compensation, other employee benefits, and all taxes and premiums appurtenant thereto concerning such individuals and shall save and hold harmless the City with respect thereto.
I. Legal Worker Requirements The City is prohibited by Arizona Revised Statutes § 41-4401 from awarding an
agreement to any contractor who fails, or whose subcontractors fail, to comply with Arizona
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Revised Statutes § 23-214(A). Therefore, Contractor agrees that:
a. Contractor and each subcontractor it uses warrants their compliance with all federal immigration laws and regulations that relate to their employees and their compliance with Arizona Revised Statutes § 23-214, subsection A.
b. A breach of warranty under paragraph A shall be deemed a material breach of the Agreement and is subject to penalties up to and including termination of the Agreement.
c. The City retains the legal right to inspect the papers of the Contractor or subcontractor employee(s) who work(s) on this Agreement to ensure that Contractor or subcontractor is complying with the warranty under paragraph A.
J. Confidentiality and Data Security a. All data, regardless of form, including originals, images and reproductions, prepared
by, obtained by, or transmitted to Contractor in connection with this Agreement is confidential, proprietary information owned by the City. Except as specifically provided in this Agreement, the Contractor shall not disclose data generated in the performance of the Services to any third person without the prior written consent of the City Manager, or his/her designee.
b. Personal identifying information, financial account information, or restricted City information, whether electronic format or hard copy, must be secured and protected at all times to avoid unauthorized access. At a minimum, Contractor must encrypt and/or password protect electronic files. This includes data saved to laptop computers, computerized devices or removable storage devices. When personal identifying information, financial account information, or restricted City information, regardless of its format, is no longer necessary, the information must be redacted or destroyed through appropriate and secure methods that ensure the information cannot be viewed, accessed, or reconstructed.
c. In the event that data collected or obtained by the Contractor in connection with this Agreement is believed to have been compromised, Contractor must notify the City Privacy Officer immediately. Contractor agrees to reimburse the City for any costs incurred by the City to investigate potential breaches of this data and, where applicable, the cost of notifying individuals who may be impacted by the breach.
d. Contractor agrees that the requirements of this Section shall be incorporated into all subcontractor/subcontractor agreements entered into by the Contractor. It is further agreed that a violation of this Section shall be deemed to cause irreparable harm that justifies injunctive relief in court. A violation of this Section may result in immediate termination of this Agreement without notice.
e. The obligations of Contractor under this Section shall survive the termination of this Agreement.
K. Equal Employment Opportunity Requirement In order to do business with the City, Contractor must comply with Phoenix City Code,
1969, Chapter 18, Article V, as amended, Equal Employment Opportunity Requirements.
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Contractor will direct any questions in regard to these requirements to the Equal Opportunity Department, (602) 262-6790.
Any contractor in performing under this contract shall not discriminate against any worker, employee or applicant, or any member of the public, because of race, color, religion, sex, national origin, age, or disability nor otherwise commit an unfair employment practice. The contractor shall ensure that applicants are employed, and employees are dealt with during employment without regard to their race, color, religion, sex, national origin, age, or disability. Such action shall include but not be limited to the following: Employment, promotion, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rate of pay or other forms of compensation; and selection for training; including apprenticeship. The contractor further agrees that this clause will be incorporated in all subcontracts with all labor organizations furnishing skilled, unskilled and union labor, or who may perform any such labor or services in connection with this contract.
L. SBE/ DBE Utilization The City extends to each individual, firm, vendor, supplier, contractor and subcontractor
an equal economic opportunity to compete for City business and strongly encourages voluntary utilization of small and/or disadvantaged businesses to reflect both the industry and community ethnic composition. The use of such businesses is encouraged whenever practical.
M. Audit/Records The City reserves the right, at reasonable times, to audit Contractor’s books and records
relative to the performance of service under this Agreement. All records pertaining to this Agreement shall be kept on a generally accepted accounting basis for a period of three (3) years following termination of the Agreement.
N. Compliance With Laws Contractor shall comply with all existing and subsequently enacted federal, state and local
laws, ordinances, codes, and regulations that are, or become applicable to this Agreement. If a subsequently enacted law imposes substantial additional costs on Contractor, a request for an amendment may be submitted pursuant to Paragraph 16.
O. Contractor and Subcontractor Worker Background Screening a. Contract Worker Background Screening. Contractor agrees that all contract
workers and subcontractors (collectively “Contract Worker(s)”) that Contractor furnishes to the City pursuant to this Agreement shall be subject to background and security checks and screening (collectively “Background Screening”) at Contractor’s sole cost and expense as set forth in this Section. The Background Screening provided by Contractor shall comply with all applicable laws, rules and regulations. Contractor further agrees that the Background Screening required in this Section is necessary to preserve and protect public health, safety and welfare. The Background Screening requirements set forth in this Section are the minimum requirements for this Agreement. The City in no way warrants that these minimum requirements are sufficient to protect Contractor from any liabilities that may arise out of Contractor’s services under this Agreement or Contractor’s failure to comply with this Section. Therefore, in addition to the specific measures set forth below, Contractor and its Contract Workers shall take such other reasonable, prudent and necessary measures to further preserve and protect public health,
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safety and welfare when providing services under this Agreement.
b. Background Screening Requirements and Criteria. Because of the varied types of services performed, the City has established three levels of risk and associated Background Screening. The risk level and Background Screening required for this Agreement is:
1. Minimum Risk and Background Screening (“Minimum Risk”).
A minimum risk Background Screening shall be performed when the Contract Worker: (i) will not have direct access to City facilities or information systems; or (ii) will not work with vulnerable adults or children; or (iii) when access to City facilities is escorted by City workers. The Background Screening for minimum risk shall consist of the screening required by Arizona Revised Statutes §§ 41-4401 and following to verify legal Arizona worker status.
Contractor Certification; City Approval of Maximum Risk Background Screening. By executing this Agreement, Contractor certifies and warrants that Contractor has read the Background Screening requirements and criteria in this Section, understands them and that all Background Screening information furnished to the City is accurate and current. Also, by executing this Agreement, Contractor further certifies and warrants that Contractor has satisfied all such Background Screening requirements for the Minimum Risk and Standard Risk Background Screenings as required.
Terms of This Section Applicable to all of Contractor’s Contracts and Subcontracts. Contractor shall include the terms of this Section for Contract Worker Background Screening in all contracts and subcontracts for services furnished under this Agreement including, but not limited to, supervision and oversight services.
c. Materiality of Background Screening Requirements; Indemnity. The Background Screening requirements of this Section are material to City’s entry into this Agreement and any breach of this Section by Contractor shall be deemed a material breach of this Agreement. In addition to the indemnity provisions set forth in Section 4 of this Agreement, Contractor shall defend, indemnify and hold harmless the City for any and all Claims (as defined in Section 4) arising out of this Background Screening Section including, but not limited to, the disqualification of a Contract Worker by Contractor or the City for failure to satisfy this Section.
d. Continuing Duty; Audit. Contractor’s obligations and requirements that Contract Workers satisfy this Background Screening Section shall continue throughout the entire term of this Agreement. Contractor shall notify the City immediately of any change to a Maximum Risk Background Screening of a Contract Worker previously approved by the City. Contractor shall maintain all records and documents related to all Background Screenings and the City reserves the right to audit Contractor’s compliance with this Section pursuant to Section 13.
P. Contract Worker Access Controls, Badge and Key Access Requirements
A contract worker shall not be allowed to begin work in any city facility without: (1) the prior completion and city’s acceptance of the required background screening; and (2) when required, the contract worker’s receipt of a city issued badge. A badge will be issued to a
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contract worker solely for access to the city facility(s) to which the contract worker is assigned. Each contract worker who enters a city facility must use the badge issued to the contract worker.
Badge Access Procedures. An authorized City of Phoenix badge application form is available at the City of Phoenix Badging Office, 251 W. Washington St., 2nd Floor, Phoenix, AZ 85003-1611. Each Contract Worker (as defined herein) who is furnishing Standard Risk (as defined herein) or Maximum Risk (as defined herein) services under this Agreement shall submit to the City of Phoenix, Banking & Cashiering Division, 251 W. Washington, 3rd Floor, Phoenix, AZ 85003-1611: (i) a fully completed and authorized City of Phoenix badge application form; (ii) a check in the initial badge fee amount listed below made payable to the “City of Phoenix”; and (iii) two forms of identification. One form of identification must be a government issued credential with an accompanying photograph. The second form of identification must be a valid passport; military issued identification card; immigration and naturalized services identification card; social security card; or an original birth certificate. After receipt of the badge application and payment, the Contract Worker will proceed to the badging office for processing of the badge application and issuance of the badge. The City will not process the badge application until the Contract Worker satisfies the required Background Screening (as defined herein). The Contract Worker shall comply with all requirements and furnish all requested information within five (5) business days from initial submission of the badge application or the subject Contract Worker’s badge application shall be rejected.
Q. Contractor’s Default; Liquidated Damages; Reservation of Remedies for Material Breach.
Contractor’s default under this Section shall include, but is not limited to the following: (i) Contract Worker gains access to a City facility(s) without the proper badge or key; (ii) Contract Worker uses a badge or key of another to gain access to a City facility; (iii) Contract Worker commences services under this Agreement without the proper badge, key or Background Screening; (iv) Contract Worker or Contractor submits false information or negligently submits wrong information to the City to obtain a badge, key or applicable Background Screening; or (v) Contractor fails to collect and timely return Contract Worker’s badge or key upon termination of Contract Worker’s employment, reassignment of Contract Worker to another City facility or upon the expiration, cancellation or termination of this Agreement. Contractor acknowledges and agrees that the access control, badge and key requirements in this Section are necessary to preserve and protect public health, safety and welfare. Accordingly, Contractor agrees to properly cure any default under this Section within three (3) business days from the date notice of default is sent by the City. The parties agree that Contractor’s failure to properly cure any default under this Section shall constitute a breach of this Section. In addition to any other remedy available to the City at law or in equity, the Contractor shall be liable for and shall pay to the City the sum of one thousand dollars ($1,000.00) [department may insert other amount] for each breach by Contractor of this Section. The parties further agree that the sum fixed above is reasonable and approximates the actual or anticipated loss to the City at the time and making of this Agreement in the event that Contractor breaches this Section. Further, the parties expressly acknowledge and agree to the fixed sum set forth above because of the difficulty of proving the City's actual damages in the event that Contractor breaches this Section. The parties further agree that three (3) breaches by Contractor of this Section arising out of any default
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within a consecutive period of three (3) months or three (3) breaches by Contractor of this Section arising out of the same default within a period of twelve (12) consecutive months shall constitute a material breach of this Agreement by Contractor and the City expressly reserves all of its rights, remedies and interests under this Agreement, at law and in equity including, but not limited to, termination of this Agreement.
R. Amendments Whenever an addition, deletion or alteration to the Services substantially changes the
Scope of Work thereby materially increasing or decreasing the cost of performance, a supplemental agreement must first be approved in writing by the City and Contractor before such addition, deletion or alteration shall be performed. Changes to the Services may be made and the compensation to be paid to Contractor may be adjusted by mutual agreement, but in no event may the compensation exceed the amount authorized without further written authorization. It is specifically understood and agreed that no claim for extra work done or materials furnished by Contractor will be allowed except as provided herein, nor shall Contractor do any work or furnish any materials not covered by this Agreement unless first authorized in writing. Any work or materials furnished by Contractor without prior written authorization shall be at Contractor’s risk, cost and expense, and Contractor agrees to submit no claim for compensation or reimbursement for additional work done or materials furnished without prior written authorization.
S. Non-Assignability This Agreement is in the nature of a personal services agreement and Contractor
shall have no power to assign its rights and obligations under this Agreement without the prior written consent of the City. Any attempt to assign without such prior written consent shall be void.
An essential consideration provided to the City by Contractor to induce the City to enter into the Agreement is Contractor’s representation that the individual(s) performing services shall include Contractor’s principals, and
. Therefore, should any of the above named individuals sever their relationship with the Contractor, or otherwise be unavailable to carry out Contractor’s duties under this Agreement for an extended period of time, which period shall be determined at the sole discretion of the City, then the City, without notice, may immediately terminate this Agreement for cause.
T. No Oral Alterations No alteration or variation of the terms of this Agreement shall be binding on the
parties herein unless such alteration or variation is in writing and signed by each of the parties to this Agreement. No oral understanding or agreement not incorporated in this Agreement shall be binding on any of the parties herein.
U. Notices Any notice, consent or other communication (“Notice”) required or permitted under
this Agreement shall be in writing and either: (1) delivered in person; (2) sent via e-mail, return receipt requested; (3) sent via facsimile transmission; (4) deposited with any
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commercial air courier or express delivery service; or (5) deposited in the United States mail, postage prepaid.
If to Contractor: If to City:
Telephone: Telephone: Facsimile: Facsimile: E-Mail E-Mail:
Notice shall be deemed received: (1) at the time it is personally served; (2) on the day it is sent via e-mail; (3) on the day it is sent by facsimile transmission; (4) on the second day after its deposit with any commercial air courier or express delivery service; or (5) five business days after the Notice is deposited in the United States mail as above provided. Any time period stated in a Notice will be computed from the time the Notice is deemed received.
Notices sent by e-mail and facsimile transmission will also be sent by regular mail to the recipient at the above address. This requirement for duplicate Notice is not intended to change the effective date of the Notice sent by e-mail or facsimile transmission.
V. Integration This Agreement constitutes and embodies the full and complete understanding
and agreement of the parties hereto and supersedes all prior understandings, agreements, discussions, proposals, bids, negotiations, communications, and correspondence, whether oral or written. No representation, promise, inducement or statement of intention has been made by any party hereto which is not embodied in this Agreement, and no party hereto shall be bound by or liable for any statement of intention not so set forth.
W. Governing Law; Forum; Venue This Agreement is executed and delivered in the State of Arizona, and the
substantive laws of the State of Arizona (without reference to choice of law principles) shall govern their interpretation and enforcement. Any action brought to interpret or enforce any provision of this Agreement that cannot be administratively resolved, or otherwise related to or arising from this Agreement, shall be commenced and maintained in the state or federal courts of the State of Arizona, Maricopa County, and each of the parties, to the extent permitted by law, consents to jurisdiction and venue in such courts for such purposes.
X. Fiscal Year Clause The City’s fiscal year begins July 1st and ends June 30th each calendar year.
The City may make payment for services rendered or costs encumbered only during a fiscal year and for a period of sixty (60) days immediately following the close of the
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fiscal year, under the provisions of Arizona Revised Statutes §42-17108. Therefore, Contractor must submit billings for services performed or costs incurred prior to the close of a fiscal year within ample time to allow payment within this 60-day period.
Y. Responsibility for Compliance with Legal Requirements The Respondent's products, services, and facilities shall be in full compliance with
all applicable federal, state, and local health, environmental, and safety laws, regulations, standards, and ordinances, regardless of whether or not they are referred to by the City.
Z. Transactional Conflicts of Interest The Respondents acknowledge that any contract resulting from this RFQ submittal
is subject to cancellation by the City pursuant to the provisions of Section 38-511, Arizona Revised Statutes.
AA. Non-waiver of Liability The City, as a public entity supported by tax monies, in execution of its public trust,
cannot agree to waive any lawful or legitimate right to recover monies lawfully due it. Therefore, any Respondent submitting an RFQ response agrees that it will not insist upon or demand any statement whereby the City agrees to limit in advance or waive any right the City might have to recover actual lawful damages in any court of law under applicable Arizona law.
BB. Fund Appropriation Contingency The Respondent recognizes that any agreement entered into shall commence upon
the day first provided and continue in full force and effect until termination in accordance with its provisions. The Respondents herein recognize that the continuation of any agreement after the close of any given fiscal year of the City of Phoenix, which fiscal years end on June 30 of each year, shall be subject to the approval of the budget of the City of Phoenix providing for or covering such agreement item as an expenditure therein. The City does not represent that said budget item will be actually adopted, said determination being the determination of the City Council at the time of the adoption of the budget.
CC. Termination Or Suspension Of Services
a. City’s Right to Terminate The City reserves the right to terminate this Agreement without cause, or to
abandon the Services, or any part of the Services not then completed, by notifying Contractor in writing. Immediately upon receiving a written notice to terminate or suspend Services, Contractor shall:
1. Discontinue advancing the work in progress, or such part that is described in the notice.
2. Deliver to the City all collected raw data, draft reports, preliminary reports, working papers, estimates and forecasts entirely or partially completed, together with all unused materials supplied by the City.
3. Appraise the work it has completed and submit its appraisal to the City for evaluation.
4. Be paid in full the pro rata value for services performed to the date of its receipt of the Notice of Termination, including reimbursement for all
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reasonable costs and expenses incurred by Contractor in terminating the work, including demobilization of field service. No payment shall be made for loss of anticipated profits or unperformed services.
b. Final Payment The City shall make final payment for all Services performed and accepted within
sixty (60) days after Contractor has delivered to the City any final progress reports, documentation, materials and evidence of costs and disbursement as required under this Agreement. Any use by the City of preliminary reports, raw data or other incomplete material returned by Contractor shall be at the City’s sole risk for such use.
c. Temporary Suspension The City may, by written notice, direct Contractor to suspend performance on all
or any part of the Services for such period of time as may be determined by the City to be necessary or desirable for its convenience. If such suspension causes additional expense to Contractor in performance, and not due to fault or negligence of Contractor, the payment will be adjusted on the basis of actual costs resulting directly from the suspension, and the period for performance of the Services will be extended by mutual agreement. Any claim by Contractor for a price adjustment must be supported by appropriate documentation asserted promptly after Contractor has been notified to suspend performance.
DD. Professional Competency a. Qualifications
Contractor represents that it is familiar with the nature and extent of this Agreement, the Services, and any conditions that may affect its performance under this Agreement. Contractor further represents that it is fully experienced and properly qualified, is in compliance with all applicable license requirements, and is equipped, organized, and financed to perform such Services.
b. Level of Care and Skill Services provided by Contractor will be performed in a manner consistent with
that level of care and skill ordinarily exercised by members of Contractor’s profession currently practicing in the same industry under similar conditions. Acceptance or approval by the City of Contractor’s work shall in no way relieve Contractor of liability to the City for damages suffered or incurred arising from the failure of Contractor to adhere to the aforesaid standard of professional competence.
EE. Specific Performance Contractor agrees that in the event of a breach by Contractor of any material
provision of this Agreement, the City shall, upon proper action instituted by it, be entitled to a decree of specific performance thereof according to the terms of this Agreement. In the event the City shall elect to treat any such breach on the part of Contractor as a discharge of the Agreement, the City may nevertheless maintain an action to recover damages arising out of such breach. This paragraph is not intended as a limitation of such other remedies as may be available to the City under law or equity.
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FF. Force Majeure Contractor shall not be responsible or liable for, or deemed in breach hereof
because of any delay in the performance of its obligations hereunder to the extent caused by circumstances beyond its control, without its fault or negligence, and that could not have been prevented by the exercise of due diligence, including but not limited to fires, natural disasters, riots, wars, unavoidable and unforeseeable site conditions, failure of the City to provide data within the City’s possession or to make necessary decisions or provide necessary comments in connection with any required reports prepared by Contractor in connection with the Services and the unforeseeable inability to obtain necessary site access, authorization, permits, licenses, certifications and approvals (such causes hereafter referred to as “Force Majeure”).
GG. Documentation a. Title
All documents including but not limited to artwork, copy, posters, billboards, photographs, video tapes, audio tapes, systems designs, drawings, estimates, field notes, investigations, software, reports, diagrams, surveys, analyses, studies or any other original works of authorship created by Contractor in the performance of this Agreement are to be and remain “works for hire” under Title 17, United States Code, and the property of the City and all copyright ownership and authorship rights in the work(s) shall belong to the City pursuant to 17 U.S.C. § 201(b). In the event that the work(s) that is/are the subject matter of this Agreement is deemed to not be work for hire, then Contractor hereby assigns to the City all of the right, title and interest for the entire world in and to the work(s) and the copyright therein. Contractor agrees to cooperate and execute additional documents reasonably necessary to conform to its obligations under this paragraph.
All documents, together with all unused materials supplied by the City, are to be delivered to the City upon termination of this Agreement before the final payment is made to Contractor.
b. Dissemination and Retention There shall be no dissemination or publication of any information gathered, or
documents prepared in the course of the performance of the Services without the prior written consent of the City. Should the City, upon advice of counsel, deem it necessary, due to existing or anticipated litigation, to assert a legal privilege of protection and non- disclosure with regard to the subject matter of this Agreement, then, and in that event, upon written demand, Contractor shall relinquish to the possession and control of the City its entire file related to this Agreement and only those portions of said file deemed by the City to be not privileged shall be returned to Contractor pending the resolution of the existing or anticipated litigation.
c. Format and Quality All documents prepared by Contractor shall be prepared in a format and at a
quality approved by the City.
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d. Document Review Contractor shall review all documents provided by the City related to the
performance of the Services and shall promptly notify the City of any defects or deficiencies discovered in such review.
e. Submittals Contractor shall provide timely and periodic submittals of all documents required
of Contractor, including subcontracts, if any, as such become available to the City for review.
HH. Release Of Information - Advertising And Promotion Contractor shall not publish, release, disclose or announce to any member of the
public, press, official body, or any other third party: (1) any information concerning this Agreement, the Services, or any part thereof; or (2) any documentation or the contents thereof, without the prior written consent of the City, except as required by law. The name of any site on which Services are performed shall not be used in any advertising or other promotional context by Contractor without the prior written consent of the City.
II. Conflicts Of Interest a. Contractor acknowledges that, to the best of its knowledge, information
and belief, no person has been employed or retained to solicit or secure this Agreement upon a promise of a commission, percentage, brokerage, or contingent fee, and that no member of the Phoenix City Council or any employee of the City has any financial interest in the consulting firm. For breach of violation of this warranty, the City shall have the right to annul this Agreement without liability, including any such commission, percentage, brokerage or contingent fee.
b. The City reserves the right to disqualify Contractor in the event that the City determines that Contractor has an actual or apparent conflict of interest with the purposes of this Agreement and the provisions and procedures set forth in Paragraph 24 shall apply.
c. Upon a finding by the City that gratuities in the form of entertainment, gifts or inducements were offered or given by Contractor, or any agent or representative of Contractor, to any officer or employee of the City for the purpose of securing this Agreement, or securing favorable treatment with respect to the awarding, amending, or making of any determination with respect to the performance of this Agreement, the City may, by one (1) calendar day written notice to Contractor, terminate the right of Contractor to proceed under this Agreement, provided that the existence of the facts upon which the City made such finding shall be an issue and may be litigated in an Arizona court of competent jurisdiction. In the event of such termination, the City shall be entitled to the same remedies against Contractor as could be pursued in the event of default by Contractor.
d. This Agreement is subject to the requirements of Arizona Revised Statutes §38-511.
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JJ. Claims Or Demands Against The City Contractor acknowledges and accepts the provisions of Chapter 18, Section 14
of the Charter of the City of Phoenix, pertaining to claims or demands against the City, including provisions therein for set-off of indebtedness to the City against demands on the City, and Contractor agrees to adhere to the prescribed procedure for presentation of claims and demands. Nothing in Chapter 18, Section 14 of the Charter of the City of Phoenix alters, amends or modifies the supplemental and complementary requirements of the State of Arizona Notice of Claim statutes, Arizona Revised Statutes §§ 12-821 and 12-821.01, pertaining to claims or demands against the City. If for any reason it is determined that the City Charter and state law conflict, then state law shall control.
Moreover, nothing in this Agreement shall constitute a dispute resolution process, an administrative claims process, or contractual term as used in Arizona Revised Statutes§ 12-821.01(C), sufficient to affect the date on which the cause of action accrues within Arizona Revised Statutes § 12-821.01(A) and (B).
KK. Waiver Of Claims For Anticipated Profits Contractor waives any claims against the City and its officers, officials, agents
and employees for loss of anticipated profits caused by any suit or proceeding, directly or indirectly, involving any part of this Agreement.
LL. Continuation During Disputes Contractor agrees as a condition of this Agreement that in the event of any
dispute between the parties, provided no Notice of Termination has been given by the City, and if it is feasible under the terms of this Agreement each party shall continue to perform the obligations not related to the dispute required of it during the resolution of such dispute, unless enjoined or prohibited by a court of competent jurisdiction.
Failure or delay by either party to exercise any right, power or privilege specified in or appurtenant to this Agreement shall not be deemed a waiver thereof.
MM. Third Party Beneficiary Clause The parties expressly agree that this Agreement is not intended by any of its
provisions to create any right of the public or any member thereof as a third party beneficiary nor to authorize anyone not a party to this Agreement to maintain a suit for personal injuries or property damage pursuant to the terms or provisions of this Agreement.
