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.
Transcript
CITY OF PHOENIXLaw Department
REQUEST FOR QUALIFICATIONS (RFQ)15-LAW-002
INVESTIGATION SERVICES
DEADLINE FOR RECEIVING PROPOSALMonday, November 9, 2015 at 3:00 p.m. MST
City of Phoenix Law Department200 W. Washington Street, Suite 1300
Phoenix, AZ 85003
DEADLINE FOR WRITTEN QUESTIONSQuestions regarding this RFQ should be submitted to MonicaGonzalez via email at [email protected], no laterthan October 14, 2015, by 3:00 p.m., MST. Answers will beprovided in the form of addenda and posted to the RFQ Internetsite by October 16, 2015.
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TABLE OF CONTENTS
SECTION PAGE
SECTION I – BACKGROUND.............................................................................................................. 4A. Introduction ...........................................................................................................4
SECTION II – SOLICITATION TRANSPARENCY POLICY ................................................................ 4SECTION III – RFQ RESPONSE INFORMATION............................................................................... 5
A. RFQ Response Submittal .....................................................................................5B. Scope of Work ......................................................................................................6C. Special Requirements ...........................................................................................8D. Qualification Criteria..............................................................................................8E. Submittal Instructions............................................................................................9F. Evaluation and Selection Process.......................................................................10G. General Information ............................................................................................10H. Protests...............................................................................................................10I. Agreement with Selected Respondent................................................................11J. Reservation of Rights by City ..............................................................................11K. Right to Disqualify ...............................................................................................11L. Applicable Law....................................................................................................11M. Organization Employment Disclaimer .................................................................12N. Respondent(s) Incurred Costs ............................................................................12O. Violations Disclosure...........................................................................................12
SECTION IV – CONTRACT TERMS AND CONDITIONS................................................................. 12A. Payment..............................................................................................................12B. Invoices...............................................................................................................13C. Reimbursable Expenses .....................................................................................13D. Indemnification clause: .......................................................................................13E. Insurance requirements: .....................................................................................14F. Approval ..............................................................................................................16G. Contact With Third Parties ..................................................................................16H. Independent Contractor Status; Employment Disclaimer....................................16I. Legal Worker Requirements ...............................................................................16J. Confidentiality and Data Security ........................................................................17K. Equal Employment Opportunity Requirement .....................................................17L. SBE/ DBE Utilization ...........................................................................................18M. Audit/Records......................................................................................................18N. Compliance With Laws .......................................................................................18O. Contractor and Subcontractor Worker Background Screening ...........................18P. Contract Worker Access Controls, Badge and Key Access Requirements.........19Q. Contractor’s Default; Liquidated Damages; Reservation of Remedies for Material
Breach.................................................................................................................20R. Amendments.......................................................................................................21S. Non-Assignability ................................................................................................21T. No Oral Alterations..............................................................................................21U. Notices ................................................................................................................21
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V. Integration ...........................................................................................................22W. Governing Law; Forum; Venue ...........................................................................22X. Fiscal Year Clause ..............................................................................................22Y. Responsibility for Compliance with Legal Requirements ....................................23Z. Transactional Conflicts of Interest.......................................................................23AA. Non-waiver of Liability .........................................................................................23BB. Fund Appropriation Contingency.........................................................................23CC. Termination Or Suspension Of Services.............................................................23DD. Professional Competency ...................................................................................24EE. Specific Performance..........................................................................................24FF. Force Majeure .....................................................................................................25GG. Documentation....................................................................................................25HH. Release Of Information - Advertising And Promotion .........................................26II. Conflicts Of Interest ............................................................................................26JJ. Claims Or Demands Against The City.................................................................27KK. Waiver Of Claims For Anticipated Profits............................................................27LL. Continuation During Disputes .............................................................................27MM. Third Party Beneficiary Clause............................................................................27
ATTACHMENTS
EXHIBIT A – City of Phoenix Administrative Regulation 3.41 – Business, Conference andTraining Travel and Related Expenses
EXHIBIT B*- Business Certification and Other Information
*Note: Exhibit B must be returned with Submittal.
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SECTION I – BACKGROUND
A. IntroductionThe 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 investigationservices for various departments of the City of Phoenix on an as-needed basis. The list shall bein effect from January 1, 2016 until December 31, 2017, and may, in the sole discretion of theCity 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 tenantso witnesseso victimso property interest holderso 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, theexecution of a contract does not guarantee that any case or matter, or any minimum number ofcases or matters, will be assigned to any particular individual or firm. The City will pay not payany costs incurred in preparation of a submittal to this request or in subsequent negotiations.
SECTION II – SOLICITATION TRANSPARENCY POLICYBeginning 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 courtreporting 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, DeputyCity 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 withthe 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 moremembers of the Phoenix City Council, provided such meetings are scheduled through BradHolm, 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 thescheduled meetings. The City Clerk will be responsible for posting the meetings. The postednotice shall identify the participants and the subject matter, as well as invite the public toparticipate.
With respect to the selection of the successful Proposer/Bidder, the City Manager and/orCity Manager's Office will continue the past practice of exerting no undue influence on theprocess. In all solicitations of bids and proposals, any direction on the selection from the CityManager and/or City Manager's Office and Department Head (or representative) to the proposalreview 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 thatcontracts are awarded in public, and protect the integrity of the selection process.PROPOSERS THAT VIOLATE THIS POLICY SHALL BE DISQUALIFIED.
SECTION III – RFQ RESPONSE INFORMATIONA. RFQ Response Submittal1. Submittals shall be received no later than 3:00 p.m., Monday, November 9, 2015 at thefollowing location:
Monica GonzalezPhoenix City Attorney’s Office200 West Washington, 13
thFloor
Phoenix, AZ 85003-1611(602) 262-6761
2. Firms must submit an original and three (3) copies of the RFQ response (an electronicsubmission 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. Contractormay 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 anequal economic opportunity to compete for City business and strongly encourages voluntaryutilization of small and/or disadvantaged businesses to reflect both the industry and communityethnic 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 acontract until it is executed by the City Attorney. The terms, conditions and specificationscontained in this solicitation, unless any of the terms, conditions, or specifications is modified byan addendum or contract amendment, and the proposer’s response shall form the basis for acontract between the City and the Contractor.
The information in this RFQ is not intended to completely define the proposed contractualrelationship to be entered into by the City and the successful Respondent. Respondent isadvised to read the contract terms and conditions (Section III) carefully. These contract termsmay be amended at the sole discretion of the City at any time during the RFQ process and priorto execution.
6. It is anticipated that many non-exclusive contracts will result from this process. Typicalcontracts are for a period of two (2) years and may contain one (1) year options for renewal, upto a maximum of five (5) years. The option to renew the contract for an additional year is at thesole discretion of the City Attorney and will be exercised only if it is in the City’s best interest todo so.
B. Scope of WorkThe City desires to engage qualified offerors to provide investigative services to the Cityof 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 tenantso witnesseso victimso property interest holderso 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, andfrom the appropriate files. The investigator will also be expected to interpret thedocuments and/or records obtained, and use them accordingly;
Gather evidence, documents, and obtain copies of files from all other sources ofinformation 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 instructionsgiven;
Take videotapes, prepare diagrams, and photographs, all of which may beobtained 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 onsuggestions, and further develop new theories;
Read and interpret state statutes, agency rules and regulations, and pertinentcase law that relates to the facts;
Gather physical evidence and mark and preserve the evidence for latertestimony;
Understand the theories of law that are claimed applicable to the matter underinvestigation;
Maintain adequate file documentation to insure that all guidelines/standards arebeing met;
Prepare written reports according to the attorneys’ instructions, maintain allconfidentialities, and work product protection according to the state statutes, andcourt 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 Requirements1. Key Personnel: It is essential that the Respondent provide an adequate staff ofexperienced personnel, capable of and devoted to the successful accomplishment of work to beperformed for the City of Phoenix Law Department. Accordingly, the Respondent may berequired by the Law Department to assign specific individuals to the key positions. Changes inkey personnel will be required to be stated in reports (which include resumes) to the LawDepartment at the point in time of any change of key personnel. Key personnel are defined asthose parties providing full-time effort for the Respondent. Changes in overflow personnel neednot 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 activitywith any federal, state or local government, the Respondent must include a letter with itsresponse setting forth the name and address of the governmental unit, the effective date of thesuspension or decertification, the duration of the suspension or decertification, and the relevantcircumstances relating to the suspension or decertification. Failure to supply the letter or todisclose in the letter all pertinent information regarding a suspension or debarment shall result inrejection of the Respondent’s response or removal of Respondent from the City's approvedQualified Vendors List.
3. Suspension or Decertification: The Respondent to this RFQ must certify that theRespondent has not been debarred, suspended or otherwise lawfully precluded fromparticipating 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 inrejection of the Respondent’s response or removal of Respondent from the City's approvedCourt Reporter List.
4. Licenses: Respondent must maintain, in current status, all federal, state, and locallicenses and permits required for the operation of the business conducted by the Respondent.
5. Respondent Obligations: All employees furnished by Respondent under any contractresulting from this RFQ shall be considered employees of Respondent and Respondent shall beresponsible for payments of all workers’ compensation claims, unemployment compensationclaims, unemployment disability claims or claims under similar laws. Respondent will beresponsible for providing all health, accident, liability and other appropriate insurance forRespondent’s employees in connection with the performance of service for the City of Phoenix.
6. Confidentiality of Records: Respondent must establish and maintain procedures andcontrols that are acceptable to the City for the purpose of assuring that no information containedin its records or obtained from the City or from others in performance of the contract shall beused or disclosed by it, its agents, officers, or employees, except as required to efficientlyperform services for the City. Persons requesting such information shall be referred to the Cityof Phoenix Law Department. Respondent also must agree that any information pertaining toindividual persons shall not be divulged other than to employees or officers of Respondent asneeded for the performance of services for the City, unless otherwise agreed to in writing by theLaw Department.
D. Qualification CriteriaRespondents shall provide:
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1. General background information with respect to the firm with special focus on primaryservices 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 withrespect to:
1. the number of years the individual has been working professionally in the legalfield, 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 InstructionsThe Respondent’s submittal for each area shall include the following:
1. Response Submittal: Respondent’s submittal shall be submitted in an original in an8 ½ x 11-inch loose-leaf three-ring binder, plus three (3) copies not in binders. A letter ofsubmission including the name of the person to be contacted shall be the first page of theresponse. Please indicate the legal support service(s) to which you are responding. Thepackage 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 theRFQ. The original copy of the response should be clearly labeled "ORIGINAL." The materialshould be in sequence and related to the RFQ. The City will not provide any reimbursement forthe cost of developing or presenting responses to this RFQ. Failure to include the requestedinformation may have a negative impact on the evaluation of the Respondent’s response. Theresponse shall include at least the following information in the order specified below withsections 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. Priceproposals 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 specificinformation 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 commenton 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 chartshowing the staffing and lines of authority for the personnel to be used in theproject. 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 thisRFQ 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 ofPhoenix as a Minority or Women Owned Business Enterprise. For information on how to becertified, please contact the City of Phoenix Equal Opportunity Department.
7. Submittal Authorization: The written Submittal shall be signed by an individualauthorized to bind the respondent. The submittal shall provide the name, email, title, addressand telephone number of individuals with authority to contractually bind the company and whomay be contacted during the period of the contract.
F. Evaluation and Selection ProcessA 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 reportingservices. The City Attorney may immediately select specific firms and/or individuals from theQVL and enter into contracts with them to address current and pending matters. Price willnot 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, theexecution of a contract does not guarantee that any case or any minimum number of caseswill be assigned to any particular firm. Firms not selected for the QVL will receive a Notice ofRejection.
G. General InformationIf you have any questions concerning this RFQ, please contact:e-mail: [email protected]: (602) 262-6761
H. ProtestsProtests 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 theRespondent. Protests shall be delivered to:
Mike RobertsCity of PhoenixCity Attorney’s Office200 West Washington Street, 13
I. Agreement with Selected Respondent1. 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 qualificationswill form the basis of any resulting Contract. However, this RFQ does not commit the City toenter into a Contract, to pay any costs incurred in the preparation of a submittal to this requestor in subsequent negotiations, or to procure a contract for the project(s).
J. Reservation of Rights by City1. 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 thebest interests of the City after all submittals have been examined and canvassed, to reject anyor 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 notconstitute 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 proposalprocedure.
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, orinspect any of the Respondent’s facilities that would be utilized in connection with performingservices under any resulting contract.
K. Right to DisqualifyThe 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. TheCity further reserves the right to disqualify any Respondent on the basis of any real or apparentconflict of interest that is disclosed by the Respondent or any other data or information availableto the City. This disqualification is at the sole discretion of the City. By submission of an RFQresponse 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 courtas to the exercise by the City of such right to disqualify or as to any disqualification by reason ofreal or apparent conflict of interest determined by the City. The City reserves the right to replacethe disqualified Respondent.
L. Applicable LawAny 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 theContract shall be in the State of Arizona.
M. Organization Employment DisclaimerAny 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 thoseexpressly set forth therein. The Respondent will be required to agree as part of any contractentered into as the result hereof that no person supplied by it in the performance of the contractis 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 havethe total responsibility for all salaries, wages, bonuses, retirement, withholdings, worker'scompensation and occupational disease compensation insurance, unemploymentcompensation, other benefits and taxes and premiums appurtenant thereto concerning suchpersons provided by such Respondents in the performance of the contract, and shall save andhold the City harmless with respect thereto.
N. Respondent(s) Incurred CostsEach 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 RFQor any additional requests for materials and documents made by the City for evaluation pursuantto this RFQ will become the property of the City and will not be returned. The selectedRespondents shall be responsible for all costs incurred by it during negotiations.
O. Violations Disclosure1. Each time the Respondents enter into a contract with the City, the Respondents shallnotify the City and specifically identify any notices from any regulatory authority with respect toany violation or alleged violation of any law or regulation by the Respondents or anysubcontractor.
2. Further, the Respondents must immediately notify the City of any inspection, audit, orreview by any regulatory authority of records or procedure of the Respondents or itssubcontractors and provide the City with a copy of any written findings prepared by suchregulatory authority in connection with such inspection, audit, or review.
SECTION IV – CONTRACT TERMS AND CONDITIONSIncluded in Section III are sample terms and conditions upon which a contract will be drafted forthose individuals or firms that are selected to do business with the City. Respondents to theRFQ should determine that they can adhere to these terms and conditions prior to responding tothe RFQ.
A. PaymentThe 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, ifapproved in advance by the City and included in the Fee Schedule. Under this Agreement, Citywill pay for services at the rate(s) specified in the Fee Schedule, with no additional charges foroverhead, benefits, local travel or administrative support. Payments shall be made in proportionto the services performed.
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B. InvoicesContractor 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 detaileddescription of the Services performed. Invoices must be accompanied by itemized receipts. Theinvoice shall be submitted free of mathematical errors and/or missing supporting documentation.All appropriate documentation that support the charges reflected in the invoice must beprovided. Upon finding of an error and/or missing documentation, the City may return theinvoice 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 ExpensesGenerally, Reimbursable Expenses include:
1. Business Expenses: Receipts for business expenses must be submitted with allrequests for payment. Business expenses that require receipts include, but are not limited toexpress mail; delivery services; messenger services; and outside printing.
2. Office Expenses: Requests for reimbursement of office expenses must be submittedwith a description of the task, which includes how the expense was incurred. Examples of officeexpenses 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 (longdistance charges only); and supplies.
3. Travel Expenses: Travel expenses must be approved in advance by the City andmust be included in the Fee Schedule. Contractor must comply with City of PhoenixAdministrative Regulation 3.41 – Business, Conference and Training Travel and RelatedExpenses, revised September 1, 2006, as it may be amended, as to the eligible and ineligibleexpenses for reimbursement and required documentation as set forth in Exhibit A attachedhereto and incorporated herein.
Contractor must demonstrate good judgment when incurring costs that are considered aReimbursable Expense while conducting business for the City. All Reimbursable Expenses shallbe 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, andcosts of claim processing, investigation and litigation) (“Claims”) caused, or alleged to becaused, in whole or in part, by the negligent or willful acts or omissions of Contractor or any of itsowners, officers, directors, agents, employees or subcontractors in connection with thisContract. 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 thenegligent or willful acts or omissions of the Indemnitee, be indemnified by Contractor from andagainst any and all claims. Contractor will be responsible for primary loss investigation, defenseand judgment costs where this indemnification is applicable. In consideration of the award ofthis 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 forthe 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, insuranceagainst claims for injury to persons or damage to property which may arise from or in connectionwith 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 noway limit the indemnity covenants contained in this Contract. The City in no way warrants thatthe minimum limits contained herein are sufficient to protect the Contractor from liabilities thatmight 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 additionalinsurance 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 liabilityrequirements provided that the coverage is written on a “following form” basis.
1. Commercial General Liability – Occurrence Forma. 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 outof the activities performed by, or on behalf of the Contractor".
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 soleproprietor waiver form.
3. Professional Liability (Errors and Omissions Liability)The policy shall cover professional misconduct or lack of ordinary skill for those positionsdefined in the Scope of Services of this contract.
Each Claim $1,000,000Annual Aggregate $2,000,000
In the event that the professional liability insurance required by this Contract is written ona claims-made basis, Contractor warrants that any retroactive date under the policy shallprecede the effective date of this Contract; and that either continuous coverage will bemaintained or an extended discovery period will be exercised for a period of two (2) yearsbeginning at the time work under this Contract is completed.
B. ADDITIONAL INSURANCE REQUIREMENTS: The policies shall include, or beendorsed to include, the following provisions:
1. On insurance policies where the City of Phoenix is named as an additional insured, the City ofPhoenix shall be an additional insured to the full limits of liability purchased by the Contractoreven 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 withrespect to all other available sources.
C. NOTICE OF CANCELLATION: Each insurance policy required by theinsurance provisions of this Contract shall provide the required coverage and shall not besuspended, voided or canceled except after thirty (30) days prior written notice has been givento the City, except when cancellation is for non-payment of premium, then ten (10) days priornotice may be given. Such notice shall be sent directly to the City of Phoenix representative forthis contract.
D. ACCEPTABILITY OF INSURERS: Insurance is to be placed with insurers dulylicensed or authorized to do business in the state of Arizona and with an “A.M. Best” rating of notless than B+ VI. The City in no way warrants that the above-required minimum insurer rating issufficient to protect the Contractor from potential insurer insolvency.
E. VERIFICATION OF COVERAGE: Contractor shall furnish the City with certificatesof 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 insurerto bind coverage on its behalf.
1. All certificates and any required endorsements are to be received and approved by the Citybefore work commences. Each insurance policy required by this Contract must be in effect ator prior to commencement of work under this Contract and remain in effect for the duration ofthe project. Failure to maintain the insurance policies as required by this Contract or toprovide 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 shallbe 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 SENDCERTIFICATES OF INSURANCE TO THE CITY'S RISK MANAGEMENT DIVISION.
F. ApprovalAny 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 aformal Contract amendment, but may be made by administrative action.
G. Contact With Third PartiesContractor 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 ofthe City. Should Contractor or its subcontractors be contacted by any person requestinginformation or requiring testimony relative to the Services provided under this Agreement or anyother prior or existing Agreement with the City, Contractor or its subcontractors shall promptlyinform the City giving the particulars of the information sought and shall not disclose suchinformation or give such testimony without the written consent of the City or court order. Theobligations of Contractor and its subcontractors under this Section shall survive the terminationof this Agreement.
Contractor agrees that the requirements of this Section shall be incorporated into allsubcontractor agreements entered into by the Contractor. It is further agreed that a violation ofthis Section shall be deemed to cause irreparable harm that justifies injunctive relief in court. Aviolation of this Section may result in immediate termination of this Agreement without notice.
H. Independent Contractor Status; Employment Disclaimera. 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 ofindependent contractors. Neither Contractor nor any of Contractor’s agents, employees orhelpers shall be deemed to be the employee, agent, or servant of the City. The City is onlyinterested in the results obtained under this Agreement; the manner, means and mode ofcompleting the same are under the sole control of Contractor.
b. This Agreement is not intended to constitute, create, give rise to, or otherwiserecognize 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 thisAgreement. The parties agree that no individual performing under this Agreement on behalf ofContractor will be considered a City employee, and that no rights of City Civil Service, Cityretirement or City personnel rules shall accrue to such individual. Contractor shall have totalresponsibility for all salaries, wages, bonuses, retirement, withholdings, worker’s compensation,other employee benefits, and all taxes and premiums appurtenant thereto concerning suchindividuals and shall save and hold harmless the City with respect thereto.
I. Legal Worker RequirementsThe 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
a. Contractor and each subcontractor it uses warrants their compliance with all federalimmigration laws and regulations that relate to their employees and their compliance withArizona Revised Statutes § 23-214, subsection A.
b. A breach of warranty under paragraph A shall be deemed a material breach of theAgreement 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 subcontractoremployee(s) who work(s) on this Agreement to ensure that Contractor or subcontractor iscomplying with the warranty under paragraph A.
J. Confidentiality and Data Securitya. 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, theContractor shall not disclose data generated in the performance of the Services to any thirdperson without the prior written consent of the City Manager, or his/her designee.
b. Personal identifying information, financial account information, or restricted Cityinformation, whether electronic format or hard copy, must be secured and protected at all timesto avoid unauthorized access. At a minimum, Contractor must encrypt and/or password protectelectronic files. This includes data saved to laptop computers, computerized devices orremovable storage devices. When personal identifying information, financial accountinformation, or restricted City information, regardless of its format, is no longer necessary, theinformation must be redacted or destroyed through appropriate and secure methods that ensurethe information cannot be viewed, accessed, or reconstructed.
c. In the event that data collected or obtained by the Contractor in connection with thisAgreement is believed to have been compromised, Contractor must notify the City PrivacyOfficer immediately. Contractor agrees to reimburse the City for any costs incurred by the Cityto investigate potential breaches of this data and, where applicable, the cost of notifyingindividuals who may be impacted by the breach.
d. Contractor agrees that the requirements of this Section shall be incorporated into allsubcontractor/subcontractor agreements entered into by the Contractor. It is further agreed thata violation of this Section shall be deemed to cause irreparable harm that justifies injunctiverelief in court. A violation of this Section may result in immediate termination of this Agreementwithout notice.
e. The obligations of Contractor under this Section shall survive the termination of thisAgreement.
K. Equal Employment Opportunity RequirementIn order to do business with the City, Contractor must comply with Phoenix City Code,
Contractor will direct any questions in regard to these requirements to the Equal OpportunityDepartment, (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. Thecontractor shall ensure that applicants are employed, and employees are dealt with duringemployment 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, demotionor transfer; recruitment or recruitment advertising; layoff or termination; rate of pay or otherforms of compensation; and selection for training; including apprenticeship. The contractorfurther agrees that this clause will be incorporated in all subcontracts with all labor organizationsfurnishing skilled, unskilled and union labor, or who may perform any such labor or services inconnection with this contract.
L. SBE/ DBE UtilizationThe City extends to each individual, firm, vendor, supplier, contractor and subcontractor
an equal economic opportunity to compete for City business and strongly encourages voluntaryutilization of small and/or disadvantaged businesses to reflect both the industry and communityethnic composition. The use of such businesses is encouraged whenever practical.
M. Audit/RecordsThe 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 thisAgreement shall be kept on a generally accepted accounting basis for a period of three (3) yearsfollowing termination of the Agreement.
N. Compliance With LawsContractor 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 asubsequently enacted law imposes substantial additional costs on Contractor, a request for anamendment may be submitted pursuant to Paragraph 16.
O. Contractor and Subcontractor Worker Background Screeninga. Contract Worker Background Screening. Contractor agrees that all contract
workers and subcontractors (collectively “Contract Worker(s)”) that Contractor furnishes to theCity pursuant to this Agreement shall be subject to background and security checks andscreening (collectively “Background Screening”) at Contractor’s sole cost and expense as setforth in this Section. The Background Screening provided by Contractor shall comply with allapplicable laws, rules and regulations. Contractor further agrees that the Background Screeningrequired 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 requirementsfor this Agreement. The City in no way warrants that these minimum requirements are sufficientto protect Contractor from any liabilities that may arise out of Contractor’s services under thisAgreement or Contractor’s failure to comply with this Section. Therefore, in addition to thespecific measures set forth below, Contractor and its Contract Workers shall take such otherreasonable, 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 ofservices performed, the City has established three levels of risk and associated BackgroundScreening. 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 withvulnerable 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 ArizonaRevised Statutes §§ 41-4401 and following to verify legal Arizona worker status.
Contractor Certification; City Approval of Maximum Risk Background Screening. Byexecuting this Agreement, Contractor certifies and warrants that Contractor has read theBackground Screening requirements and criteria in this Section, understands them and that allBackground Screening information furnished to the City is accurate and current. Also, byexecuting this Agreement, Contractor further certifies and warrants that Contractor has satisfiedall such Background Screening requirements for the Minimum Risk and Standard RiskBackground 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 inall contracts and subcontracts for services furnished under this Agreement including, but notlimited to, supervision and oversight services.
c. Materiality of Background Screening Requirements; Indemnity. The BackgroundScreening requirements of this Section are material to City’s entry into this Agreement and anybreach of this Section by Contractor shall be deemed a material breach of this Agreement. Inaddition to the indemnity provisions set forth in Section 4 of this Agreement, Contractor shalldefend, 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, thedisqualification 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 ContractWorkers satisfy this Background Screening Section shall continue throughout the entire term ofthis Agreement. Contractor shall notify the City immediately of any change to a Maximum RiskBackground Screening of a Contract Worker previously approved by the City. Contractor shallmaintain all records and documents related to all Background Screenings and the City reservesthe 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) theprior completion and city’s acceptance of the required background screening; and (2) whenrequired, 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 isavailable at the City of Phoenix Badging Office, 251 W. Washington St., 2nd Floor, Phoenix, AZ85003-1611. Each Contract Worker (as defined herein) who is furnishing Standard Risk (asdefined herein) or Maximum Risk (as defined herein) services under this Agreement shall submitto 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 issuedcredential with an accompanying photograph. The second form of identification must be a validpassport; military issued identification card; immigration and naturalized services identificationcard; social security card; or an original birth certificate. After receipt of the badge applicationand payment, the Contract Worker will proceed to the badging office for processing of the badgeapplication and issuance of the badge. The City will not process the badge application until theContract Worker satisfies the required Background Screening (as defined herein). The ContractWorker 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’sbadge application shall be rejected.
Q. Contractor’s Default; Liquidated Damages; Reservation of Remedies forMaterial 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) ContractWorker commences services under this Agreement without the proper badge, key orBackground Screening; (iv) Contract Worker or Contractor submits false information ornegligently submits wrong information to the City to obtain a badge, key or applicableBackground Screening; or (v) Contractor fails to collect and timely return Contract Worker’sbadge or key upon termination of Contract Worker’s employment, reassignment of ContractWorker to another City facility or upon the expiration, cancellation or termination of thisAgreement. Contractor acknowledges and agrees that the access control, badge and keyrequirements in this Section are necessary to preserve and protect public health, safety andwelfare. Accordingly, Contractor agrees to properly cure any default under this Section withinthree (3) business days from the date notice of default is sent by the City. The parties agreethat Contractor’s failure to properly cure any default under this Section shall constitute abreach of this Section. In addition to any other remedy available to the City at law or inequity, the Contractor shall be liable for and shall pay to the City the sum of one thousanddollars ($1,000.00) [department may insert other amount] for each breach by Contractor ofthis Section. The parties further agree that the sum fixed above is reasonable andapproximates the actual or anticipated loss to the City at the time and making of thisAgreement in the event that Contractor breaches this Section. Further, the parties expresslyacknowledge and agree to the fixed sum set forth above because of the difficulty of provingthe City's actual damages in the event that Contractor breaches this Section. The partiesfurther 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 thisSection arising out of the same default within a period of twelve (12) consecutive monthsshall constitute a material breach of this Agreement by Contractor and the City expresslyreserves all of its rights, remedies and interests under this Agreement, at law and in equityincluding, but not limited to, termination of this Agreement.
R. AmendmentsWhenever an addition, deletion or alteration to the Services substantially changes the
Scope of Work thereby materially increasing or decreasing the cost of performance, asupplemental agreement must first be approved in writing by the City and Contractor beforesuch addition, deletion or alteration shall be performed. Changes to the Services may bemade 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 writtenauthorization. It is specifically understood and agreed that no claim for extra work done ormaterials furnished by Contractor will be allowed except as provided herein, nor shallContractor do any work or furnish any materials not covered by this Agreement unless firstauthorized in writing. Any work or materials furnished by Contractor without prior writtenauthorization shall be at Contractor’s risk, cost and expense, and Contractor agrees tosubmit no claim for compensation or reimbursement for additional work done or materialsfurnished without prior written authorization.
S. Non-AssignabilityThis 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 theprior written consent of the City. Any attempt to assign without such prior written consentshall be void.
An essential consideration provided to the City by Contractor to induce the City toenter into the Agreement is Contractor’s representation that the individual(s) performingservices shall include Contractor’s principals, and
. Therefore, should any of the above named individuals sever their relationship withthe Contractor, or otherwise be unavailable to carry out Contractor’s duties under thisAgreement for an extended period of time, which period shall be determined at the solediscretion of the City, then the City, without notice, may immediately terminate thisAgreement for cause.
T. No Oral AlterationsNo 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 theparties to this Agreement. No oral understanding or agreement not incorporated in thisAgreement shall be binding on any of the parties herein.
U. NoticesAny 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.
Notice shall be deemed received: (1) at the time it is personally served; (2) on the dayit is sent via e-mail; (3) on the day it is sent by facsimile transmission; (4) on the secondday 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 aboveprovided. Any time period stated in a Notice will be computed from the time the Noticeis deemed received.
Notices sent by e-mail and facsimile transmission will also be sent by regular mail to therecipient at the above address. This requirement for duplicate Notice is not intended tochange the effective date of the Notice sent by e-mail or facsimile transmission.
V. IntegrationThis 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, andcorrespondence, whether oral or written. No representation, promise, inducement orstatement of intention has been made by any party hereto which is not embodied in thisAgreement, and no party hereto shall be bound by or liable for any statement ofintention not so set forth.
W. Governing Law; Forum; VenueThis 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 orenforce any provision of this Agreement that cannot be administratively resolved, orotherwise related to or arising from this Agreement, shall be commenced andmaintained in the state or federal courts of the State of Arizona, Maricopa County, andeach of the parties, to the extent permitted by law, consents to jurisdiction and venue insuch courts for such purposes.
X. Fiscal Year ClauseThe 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 afiscal 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 theclose of a fiscal year within ample time to allow payment within this 60-day period.
Y. Responsibility for Compliance with Legal RequirementsThe 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 InterestThe 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, ArizonaRevised Statutes.
AA. Non-waiver of LiabilityThe 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 uponor demand any statement whereby the City agrees to limit in advance or waive any rightthe City might have to recover actual lawful damages in any court of law under applicableArizona law.
BB. Fund Appropriation ContingencyThe Respondent recognizes that any agreement entered into shall commence upon
the day first provided and continue in full force and effect until termination in accordancewith its provisions. The Respondents herein recognize that the continuation of anyagreement after the close of any given fiscal year of the City of Phoenix, which fiscal yearsend on June 30 of each year, shall be subject to the approval of the budget of the City ofPhoenix providing for or covering such agreement item as an expenditure therein. The Citydoes not represent that said budget item will be actually adopted, said determination beingthe 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 TerminateThe 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 notifyingContractor in writing. Immediately upon receiving a written notice to terminate orsuspend Services, Contractor shall:
1. Discontinue advancing the work in progress, or such part that is described inthe 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 forevaluation.
4. Be paid in full the pro rata value for services performed to the date of itsreceipt of the Notice of Termination, including reimbursement for all
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reasonable costs and expenses incurred by Contractor in terminating thework, including demobilization of field service. No payment shall be madefor loss of anticipated profits or unperformed services.
b. Final PaymentThe 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 underthis Agreement. Any use by the City of preliminary reports, raw data or otherincomplete material returned by Contractor shall be at the City’s sole risk for such use.
c. Temporary SuspensionThe 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 tobe necessary or desirable for its convenience. If such suspension causes additionalexpense 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 thesuspension, and the period for performance of the Services will be extended by mutualagreement. Any claim by Contractor for a price adjustment must be supported byappropriate documentation asserted promptly after Contractor has been notified tosuspend performance.
DD. Professional Competencya. Qualifications
Contractor represents that it is familiar with the nature and extent of thisAgreement, the Services, and any conditions that may affect its performance under thisAgreement. Contractor further represents that it is fully experienced and properlyqualified, is in compliance with all applicable license requirements, and is equipped,organized, and financed to perform such Services.
b. Level of Care and SkillServices provided by Contractor will be performed in a manner consistent with
that level of care and skill ordinarily exercised by members of Contractor’s professioncurrently practicing in the same industry under similar conditions. Acceptance orapproval by the City of Contractor’s work shall in no way relieve Contractor of liability tothe City for damages suffered or incurred arising from the failure of Contractor toadhere to the aforesaid standard of professional competence.
EE. Specific PerformanceContractor 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 entitledto 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 adischarge of the Agreement, the City may nevertheless maintain an action to recoverdamages arising out of such breach. This paragraph is not intended as a limitation ofsuch other remedies as may be available to the City under law or equity.
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FF. Force MajeureContractor 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 extentcaused by circumstances beyond its control, without its fault or negligence, and thatcould not have been prevented by the exercise of due diligence, including but notlimited to fires, natural disasters, riots, wars, unavoidable and unforeseeable siteconditions, failure of the City to provide data within the City’s possession or to makenecessary decisions or provide necessary comments in connection with any requiredreports prepared by Contractor in connection with the Services and the unforeseeableinability to obtain necessary site access, authorization, permits, licenses, certificationsand approvals (such causes hereafter referred to as “Force Majeure”).
GG. Documentationa. Title
All documents including but not limited to artwork, copy, posters, billboards,photographs, video tapes, audio tapes, systems designs, drawings, estimates, fieldnotes, investigations, software, reports, diagrams, surveys, analyses, studies or anyother original works of authorship created by Contractor in the performance of thisAgreement 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 thework(s) shall belong to the City pursuant to 17 U.S.C. § 201(b). In the event that thework(s) that is/are the subject matter of this Agreement is deemed to not be work forhire, then Contractor hereby assigns to the City all of the right, title and interest for theentire world in and to the work(s) and the copyright therein. Contractor agrees tocooperate and execute additional documents reasonably necessary to conform to itsobligations under this paragraph.
All documents, together with all unused materials supplied by the City, are to bedelivered to the City upon termination of this Agreement before the final payment ismade to Contractor.
b. Dissemination and RetentionThere shall be no dissemination or publication of any information gathered, or
documents prepared in the course of the performance of the Services without the priorwritten 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 theCity its entire file related to this Agreement and only those portions of said file deemedby the City to be not privileged shall be returned to Contractor pending the resolution ofthe existing or anticipated litigation.
c. Format and QualityAll documents prepared by Contractor shall be prepared in a format and at a
quality approved by the City.
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d. Document ReviewContractor shall review all documents provided by the City related to the
performance of the Services and shall promptly notify the City of any defects ordeficiencies discovered in such review.
e. SubmittalsContractor shall provide timely and periodic submittals of all documents required
of Contractor, including subcontracts, if any, as such become available to the City forreview.
HH. Release Of Information - Advertising And PromotionContractor 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 thisAgreement, the Services, or any part thereof; or (2) any documentation or the contentsthereof, without the prior written consent of the City, except as required by law. Thename of any site on which Services are performed shall not be used in any advertisingor other promotional context by Contractor without the prior written consent of the City.
II. Conflicts Of Interesta. Contractor acknowledges that, to the best of its knowledge, information
and belief, no person has been employed or retained to solicit or secure this Agreementupon a promise of a commission, percentage, brokerage, or contingent fee, and that nomember of the Phoenix City Council or any employee of the City has any financialinterest in the consulting firm. For breach of violation of this warranty, the City shallhave 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 theCity determines that Contractor has an actual or apparent conflict of interest with thepurposes of this Agreement and the provisions and procedures set forth in Paragraph24 shall apply.
c. Upon a finding by the City that gratuities in the form of entertainment, giftsor inducements were offered or given by Contractor, or any agent or representative ofContractor, to any officer or employee of the City for the purpose of securing thisAgreement, or securing favorable treatment with respect to the awarding, amending, ormaking of any determination with respect to the performance of this Agreement, theCity may, by one (1) calendar day written notice to Contractor, terminate the right ofContractor to proceed under this Agreement, provided that the existence of the factsupon which the City made such finding shall be an issue and may be litigated in anArizona court of competent jurisdiction. In the event of such termination, the City shallbe entitled to the same remedies against Contractor as could be pursued in the event ofdefault by Contractor.
d. This Agreement is subject to the requirements of Arizona RevisedStatutes §38-511.
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JJ. Claims Or Demands Against The CityContractor 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 onthe City, and Contractor agrees to adhere to the prescribed procedure for presentationof claims and demands. Nothing in Chapter 18, Section 14 of the Charter of the City ofPhoenix alters, amends or modifies the supplemental and complementary requirementsof the State of Arizona Notice of Claim statutes, Arizona Revised Statutes §§ 12-821and 12-821.01, pertaining to claims or demands against the City. If for any reason it isdetermined that the City Charter and state law conflict, then state law shall control.
Moreover, nothing in this Agreement shall constitute a dispute resolutionprocess, an administrative claims process, or contractual term as used in ArizonaRevised Statutes§ 12-821.01(C), sufficient to affect the date on which the cause ofaction accrues within Arizona Revised Statutes § 12-821.01(A) and (B).
KK. Waiver Of Claims For Anticipated ProfitsContractor waives any claims against the City and its officers, officials, agents
and employees for loss of anticipated profits caused by any suit or proceeding, directlyor indirectly, involving any part of this Agreement.
LL. Continuation During DisputesContractor 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 theCity, and if it is feasible under the terms of this Agreement each party shall continue toperform the obligations not related to the dispute required of it during the resolution ofsuch dispute, unless enjoined or prohibited by a court of competent jurisdiction.
Failure or delay by either party to exercise any right, power or privilege specifiedin or appurtenant to this Agreement shall not be deemed a waiver thereof.
MM. Third Party Beneficiary ClauseThe 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 partybeneficiary nor to authorize anyone not a party to this Agreement to maintain a suit forpersonal injuries or property damage pursuant to the terms or provisions of thisAgreement.
