As used in this Solicitation and any resulting Contract, the terms listed below are defined as follows:
City – is defined as the City of Surprise, Arizona.
Contract – is defined as the resulting agreement between the City and the Contractor pursuant to this RFQu including, but not limited to, the combination of the Solicitation, including the Special Terms and Conditions, the Standard Terms and Conditions, and the Specifications and Statement or Scope of Work/Services; the Offer and any Best and Final Offers; and any Solicitation Amendments or Contract Amendments.
Contract Amendment – is defined as a written document signed by the Procurement Manager that is issued for the purpose of making changes in the Contract.
Contractor – or Vendor or Consultant (as is used in the Scope of Work), is defined as the Offeror who was awarded the Contract with the City.
Day(s) – are defined as calendar days unless otherwise specified.
Exhibit – is defined as any item labeled as an Exhibit in the Solicitation or placed in the Exhibits section of the Solicitation.
Gratuity – is defined as a payment, loan, subscription, advance, deposit of money, services, or anything of more than nominal value, present or promised, unless consideration of substantially equal or greater value is received.
Good(s) – are defined as articles moveable at the time of sale, including, but not limited to, equipment, supplies, consumable items, commodities, materials, products, parts, assets, or the like, received by the City in the execution of a contract.
Offer – is defined as the bid, proposal, or qualifications submitted in response to this Solicitation that may be awarded the Contract.
Offeror – is defined as the individual or legal entity that submitted the Offer to this Solicitation.
Procurement Manager – is defined as the person, or his or her designee, duly authorized by the City to enter into and administer Contracts and make written determinations with respect to the Contract.
Service(s) – are defined as the work performed or the furnishing of labor, time or effort expended by a contractor or subcontractor, including, without limitation, all work, labor, time, effort, personnel, construction, equipment, products, supplies, parts, or other materials used in the performance of the Contract. The term “Services” does not involve: the delivery of a specific end product, other than required reports and performance; employment agreements; or collective bargaining agreements.
Solicitation – is defined as this Request for Qualifications (“RFQu”) by which the City invites potential contractors to participate in a procurement.
Subcontract – is defined as any contract, express or implied, between the Contractor and another party or between a subcontractor and another party delegating or assigning, in whole or in part, the making or furnishing of any Good and/or Service required for the performance of the Contract.
By signature in the Offer section of the Offer and Acceptance Award page, the Contractor certifies all of the following:
A. The submission of the Offer did not involve collusion or other anti-competitive practices.
B. The Contractor shall not discriminate against any employee or applicant for employment in violation of Federal Executive Order 11246.
C. The Contractor has not given, offered to give, nor intends to give at any time hereafter any economic opportunity, future employment, gift, loan, gratuity, special discount, trip favor, or service to a public servant in connection with the submitted Offer. Failure to sign the Offer, or signing it with a false statement, shall void the submitted Offer or any resulting contracts, and the Contractor may be debarred.
The Contract between the City and the Contractor shall consist of (1) the Solicitation, including instructions, all terms and conditions, specifications, scopes of work, attachments, and any amendments thereto, and (2) the Offer submitted by the Contractor in response to the Solicitation. In the event of a conflict in language between the Solicitation and the Offer, the provisions and requirements in the Solicitation shall govern. However, the City reserves the right to clarify, in writing, any contractual terms with the concurrence of the Contractor, and such written Contract shall govern in case of conflict with the applicable requirements stated in the Solicitation or the Contractor's Offer. The Solicitation shall govern in all other matters not affected by the written Contract.
This Contract may be modified only by a written Contract Amendment signed by persons duly authorized to enter into contracts on behalf of the City and the Contractor.
The Contractor shall substantially conform to the terms, conditions, specifications and other requirements found within the text of this specific Solicitation. All previous agreements, contracts, or other documents, which have been executed between the Contractor and the City, are not applicable to this Solicitation or any resultant Contract.
Any Contract resulting from this Solicitation shall be awarded with the understanding and agreement that it is for the sole convenience of the City of Surprise. The City reserves the right to obtain like Goods and/or Services from another source when necessary. Off-Contract purchase authorization may only be approved by the City Procurement Manager. Approval shall be at the discretion of the City Procurement Manager and shall be conclusive, however, approval shall be granted only after a proper review and when deemed to be appropriate. Off-Contract procurement shall be consistent with the City Procurement Code.
In the event of conflict in the provision of the Contract, as accepted by the City and as they may be amended, the following shall prevail in the order set forth below:
A. Special Terms and Conditions
B. Standard Terms and Conditions
C. Statement or Scope of Work
G. Documents referenced or included in the Solicitation
H. Proposal Submittal including any ancillary / service contract
I. Purchase Order Terms and Conditions
In the event of a conflict between the Exhibits and Standard Terms and Conditions, the Standard Terms and Conditions of this Contract will govern. In the event of a conflict in language between the Solicitation and the Offer, the provisions and requirements in the Solicitation will govern. However, the City reserves the right to clarify, in writing, any contractual terms with the concurrence of Contractor, and such written Contract will govern in case of conflict with the applicable requirements stated in the Solicitation or the Contractor's Offer.
A. For City’s Convenience: This Contract is for the convenience of the City and may be immediately terminated without cause after receipt by the Contractor of written notice by the City. Upon termination for convenience, Contractor will be paid for all undisputed services performed up to the termination date.
B. Conflict of Interest: This Contract is subject to the provisions of A.R.S. § 38-511. The City may cancel this Contract without penalty or further obligations by the City or any of its departments or agencies if any person significantly involved in initiating, negotiating, securing, drafting, or creating this Contract on behalf of the City or any of its departments or agencies is at any time while the Contract or any extension of the Contract is in effect, an employee or agent of any other party to the Contract in any capacity or a consultant to any other party of the Contract with respect to the Contract subject.
C. Fund Appropriation Contingency: Contractor understands that the continuation of this Contract is subject to the budget of the City providing for the contract item as an expenditure. The City cannot assure that the budget item for funding this Contract will be approved in the future. In such event, the City may terminate this Contract.
The City, by written notice of default to the Contractor, may terminate the whole or any part of this Contract in any of the following circumstances:
A. If the Contractor fails to make delivery of the Goods or to perform the Services within the time specified; or
B. If the Contractor fails to perform any of the other provisions of this Contract and fails to remedy the situation within a period of ten (10) days after receipt of notice.
In the event the City terminates this Contract in whole or part, the City may procure Goods and/or Services similar to those terminated, and the contractor shall be liable to the City for any excess costs for such similar Goods and/or Services.
Contractor shall deliver conforming Goods in each installment of lot of this Contract and may not substitute nonconforming Goods. Delivery of nonconforming Goods or a default of any nature, at the option of the City, shall constitute a breach of the Contract as a whole.
The City may, by written notice to the Contractor, cancel this Contract if it is found by the City that gratuities, in the form of entertainment, gifts or otherwise, were offered or given by the Contractor or any agent or representative of the Contractor, to any officer or employee of the City with a view toward securing an order, securing favorable treatment with respect to the awarding, amending, or the making of any determinations with respect to the performing of such order. In the event this Contract is cancelled by the City pursuant to this provision, the City shall be entitled, in addition to any other rights and remedies, to recover or withhold from the Contractor the amount of the gratuity. Paying the expense of normal business meals which are generally made available to all eligible city government customers shall not be prohibited by this paragraph.
In the performance of this Contract, Contractor will abide by and conform to any and all laws of the United States, the State of Arizona, and the City of Surprise, including but not limited to, existing and future federal and state executive orders providing for equal employment and procurement opportunities, the Federal Occupational Safety and Health Act, and any other existing or future federal, state, or local laws, rules, regulations, orders, directives, statutes, and ordinances applicable to this Contract. This Contract is governed by the laws of the State of Arizona and suit pertaining to this Contract may be brought only in courts in the State of Arizona in Maricopa County.
All claims and controversies shall be subject to resolution according to the terms of the City of Surprise Procurement Code.
Each and every provision of law and any clause required by law to be in the Contract will be read and enforced as though it were included and, if through mistake or otherwise, any such provision is not inserted, or is not correctly inserted, then upon the application of either party, the Contract will promptly be physically amended to make such insertion or correction.
The provisions of this Contract are severable. To the extent that any provision is held to be invalid by a court of competent jurisdiction, such holding will not affect any other provision of the Contract which may remain in effect without the invalid provision.
Each party will act in its individual capacity and not as an agent, employee, partner, joint venturer, or associate of the other. An employee or agent of one party may not be deemed or construed to be the employee or agent of the other for any purpose whatsoever. Contractor is advised that taxes or Social Security payments will not be withheld from any City payments issued hereunder and the Contractor agrees to be fully and solely responsible for the payment of such taxes or any other tax applicable to this Contract. Contractor, its employees, and subcontractors are not entitled to workers’ compensation benefits from the City. The City does not have the authority to supervise or control the actual work of Contractor, its employees, or subcontractors. Contractor, and not the City, will determine the time of its performance of the Services so long as Contractor meets the requirements of this Contract. Contractor is neither prohibited from entering into other contracts nor prohibited from practicing its profession elsewhere.
This Contract represents the entire agreement of the parties with respect to its subject matter. All previous agreements, whether oral or written, entered into prior to this Contract are hereby revoked and superseded by this Contract. No representations, warranties, inducements, or oral agreements have been made by any of the parties except as expressly set forth in this Contract. This Contract will be construed and interpreted according to its plain meaning, and no presumption will be deemed to apply in favor of or against the party drafting the Contract. The parties acknowledge and agree that each has had the opportunity to seek and utilize legal counsel in drafting, reviewing, and entering into this Contract.
No right or interest in this Contract may be assigned by Contractor without prior written permission of the City, signed by the City Manager or their designee. No delegation of any duty of the Contractor may be made without prior written permission of the City, signed by the City Manager or their designee. Any attempted assignment or delegation by the Contractor in violation of this provision is a breach of this Contract by the Contractor.
No subcontract may be entered into by Contractor with any other party to furnish any of the Goods and/or Services specified herein without the prior written approval of the City. Contractor is responsible for performance under this Contract whether or not subcontractors are used.
No provision in this Contract may be construed, expressly or by implication, as waiver by the City of any existing or future right or remedy available by law in the event of any claim of default or breach of this Contract. The failure of the City to insist upon the strict performance of any term or condition of this Contract or to exercise or delay the exercise of any right or remedy provided in this Contract, or by law, or the City’s acceptance of and payment for services, will not release Contractor from any responsibilities or obligations imposed by this Contract or by law, and will not be deemed a waiver of any right of the City to insist upon the strict performance of this Contract.
To the fullest extent permitted by law, Contractor shall indemnify, defend and hold harmless the City and its council members, managers, officers, boards, commissions, officials, employees, or agents (collectively “Indemnified Party”), for, from, and against any and all losses, claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees, claims processing, investigation, court costs and the costs of appellate proceedings) to which any such Indemnified Party may become subject, under any theory of liability whatsoever (“Claims”), including negligence, insofar as such Claims (or actions with respect thereof) relate to, arise out of, or are caused by, or in connection with the City entering into this Contract, or the acts or omissions of any Indemnified Party acting pursuant to or in furtherance of this Contract. Contractor shall further indemnify, defend and hold harmless any Indemnified Party for, from and against any and all losses, claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees, claims processing, investigation, court costs and the costs of appellate proceedings) to which any such Indemnified Party may become subject, under any theory of liability whatsoever (“Claims”), insofar as such Claims (or actions with respect thereof) relate to, arise out of, or are caused by, or in connection with the negligent or willful acts or omissions of work or professional services of Contractor, its officers, employees, agents, or any tier of subcontractor in the performance of this Contract. 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 Contractor for the City. The amount and type of insurance coverage required by this Contract will in no way be construed as limiting the scope of the indemnity in this section.
The City maintains that, in practice, overcharges resulting from antitrust violations are borne by the purchaser. Therefore, to the extent permitted by law, the Contractor hereby assigns to the City any and all claims for such overcharges as to the Goods and/or Services used to fulfill the Contract.
Except for payment for sums due, neither party will be liable to the other nor deemed in default under this Contract if and to the extent that such party’s performance of this Contract is prevented by reason of force majeure. The term “force majeure” means an occurrence that is beyond the control of the party affected and occurs without its fault or negligence. Without limiting the foregoing, force majeure includes acts of God: acts of the public enemy; war; acts of terror, hate crimes affecting public order; riots; strikes; mobilization; labor disputes; civil disorders; plague; pandemics (including without limitation, the COVID-19 pandemic); epidemics; quarantine orders or directives by a governmental entity; outbreaks of infectious disease or any other public health crisis, including without limitation, quarantine or other employee restrictions; fire; floods; lockouts, injunctions-interventions-acts, or failures or refusals to act by government authority; events or obstacles resulting from a governmental authority’s response to the foregoing; and other similar occurrences beyond the control of the party declaring force majeure which such party is unable to prevent by exercising reasonable diligence. The force majeure notifies the other party of the existence of the force majeure and will be deemed to continue as long as the results or effects of the force majeure prevent the party from resuming performance in accordance with this Contract. Force majeure will not include the following occurrences:
A. Failure or delay resulting from general economic conditions or other market effects, foreseen or unforeseen, including any increase in the cost of materials, supplies, or services, or any decrease in profit or profit margins resulting therefrom;
B. Late delivery of equipment, materials, or other Goods or Services caused by congestion at a manufacturer’s plant or elsewhere, an oversold condition of the market, inefficiencies, or similar occurrences; and/or
C. Late performance by a subcontractor unless the delay arises out of a force majeure occurrence in accordance with this section.
Whenever one party to this Contract in good faith has reason to question the other party's intent to perform, they may demand that the other party give a written assurance of this intent to perform. In the event that a demand is made and no written assurance is given within five (5) days, the demanding party may treat this failure as an anticipatory repudiation of the Contract.
The City may, at reasonable times and places, audit the books and records of any Contractor as related to any contract held with the City.
The City may, at reasonable times, inspect the part of the plant or place of business of a Contractor or Subcontractor which is related to the performance of any contract as awarded or to be awarded.
Contractor warrants that all Goods and/or Services delivered under this Contract shall conform to the specifications of this Contract. Unless otherwise stated in Contractor's response, the City is responsible for selecting items, their use, and the results obtained from any other items used with the items furnished under this Contract. Mere receipt of shipment of the Goods and/or Services specified and any inspection incidental thereto by the City shall not alter or affect the obligations of the Contractor or the rights of the City under the foregoing warranties. Additional warranty requirements may be set forth in the Solicitation. Contractor warrants that the Services rendered will conform to the requirements of this Contract and to the highest professional standards in the field.
All work and other Services will be subject to inspection and acceptance by the City at reasonable times during Contractor’s performance. All Goods and/or Services are subject to final inspection and acceptance by the City. Materials and/or services failing to conform to the specifications of this Contract will be held at Contractor's risk and may be returned to the Contractor. If so returned, all costs are the responsibility of the Contractor. The City may elect by a written determination to do any or all of the following:
A. Waive the non-conformance;
B. Stop the work immediately; and/or
C. Bring the Goods and/or Services into compliance.
The title and risk of loss of Goods and/or Services shall not pass to the City until the City actually receives the Goods and/or Services at the point of delivery, unless otherwise provided within this Contract.
Every tender of Goods shall fully comply with all provisions of the Contract. If a tender is made which does not fully conform, this shall constitute a breach of the Contract as a whole.
Contractor is not authorized to ship Goods under reservation and no tender of a bill of lading will operate as a tender of the Goods.
All Goods and/or Services must be free of all liens and, if the City requests, a formal release of all liens must be delivered to the City.
All specifications shall seek to promote overall economy for the purposes intended and encourage competition and not be unduly restrictive in satisfying the City's needs. No person preparing specifications shall receive any direct or indirect benefit from the utilization of specifications, other than fees paid for the preparation of specifications.
The City shall not reimburse the cost of developing presenting or providing any response to this Solicitation. Offers submitted for consideration should be prepared simply and economically, providing adequate information in a straightforward and concise manner.
Notwithstanding any provisions of this Contract regarding confidentiality, secrets, or protected rights, Contractor acknowledges that all documents provided to the City may be subject to disclosure by laws related to open public records. Consequently, Contractor understands that disclosure of some or all of the items subject to this Contract may be required by law. In the event the City receives a request for disclosure that is reasonably calculated to incorporate information that might be considered confidential by Contractor, the City agrees to provide Contractor with notice of that request. Within ten (10) days of such notice, Contractor must inform the City in writing of any objection by Contractor to the disclosure of the requested information. Failure by Contractor to object timely will waive Contractor’s ability to object under this section and will waive any remedy against the City for disclosure. In the event Contractor objects to disclosure within the time specified, Contractor agrees to handle all aspects related to the request including properly communicating with the requestor and timely responding with information. Furthermore, Contractor agrees to indemnify, defend, and hold harmless the City from any claims, actions, lawsuits, or any other controversy or remedy, in whatever form, that arises from the failure to comply with the request for information and the laws pertaining to public records, including defending the City in any legal action and payment of any penalties or judgments assessed against the City. This provision will survive the termination of this Contract.
Contractor must establish and maintain procedures and controls that are acceptable to the City for the purpose of ensuring that information contained in its records or obtained from the City or from others in carrying out its obligations under this Contract will not be used or disclosed by it, its agents, officers, or employees, except as required to perform Contractor’s duties under this Contract. Persons requesting such information should be referred to the City. Contractor also agrees that any information pertaining to individual persons will not be divulged other than to employees, agents, or officers of the Contractor as needed for the performance of duties under this Contract.
A. If a person or entity believes that a bid, proposal, offer, specification, or protest contains information that should be withheld, a statement advising the Procurement Manager of this fact shall accompany the submission and the information shall be identified.
B. The information identified by the person as confidential shall not be disclosed until the Procurement Manager makes a written determination.
C. The Procurement Manager shall review the statement and information and shall determine in writing whether the information shall be withheld.
D. If the Procurement Manager determines to disclose the information, the Procurement Manager shall inform the Offeror in writing of such determination.
Contractor shall not advertise or publish information concerning this Contract, without prior written consent of the City.
The City shall issue a purchase order for the Goods and/or Services covered by this Contract. All such documents shall reference the Contract number as indicated on the Offer and Contract Award.
Contractor understands that the continuation of this Contract after the close of any given fiscal year of the City of Surprise, which ends on June 30 each year, shall be subject to the budget of the City providing for the contract item as an expenditure. The City cannot assure that the budget item for funding this Contract will be approved in the future, as such assurance would be a legislative and policy determination of the City Council at the time of the adoption of the budget. Should the funding of the Contract not be approved by City Council, the City may terminate this Contract as of the close of its fiscal year. The City represents that it intends to pay all monies due, if such funds have been legally appropriated.
All billing notices to the City shall identify the specific Goods and/or Services being billed and the purchase order number. Goods and Services are to be identified by the name, model number, and/or serial number most applicable. Any purchase/delivery order issued by the requesting agency shall refer to the Contract number resulting from this Solicitation. Contractor shall submit invoices to the City of Surprise Accounts Payable Department, 16000 N Civic Center Plaza, Surprise, AZ 85374. Invoices may also be submitted electronically to [email protected]
The City will pay Contractor subject to Contractor submitting an invoice to the City for each requested payment. Invoices will itemize all Goods provided and/or Services completed up to the date of the invoice and provide sufficient detail about the Services completed to support the payment requested. Upon approval of the invoice, the City will pay the invoiced amount to Contractor. Payment Terms shall be Net 30, and the Offeror shall not require the City to set up any credit services of any nature whatsoever. The City shall not be required to pay any invoices that are not submitted within sixty (60) calendar days of completion of services, work and/or delivery of any goods.
Contractor warrants that it complies with all federal immigration laws and regulations that relate to its employees and that it complies with A.R.S. § 23-214(A). Contractor acknowledges that pursuant to A.R.S. § 41-4401, a breach of this warranty is a material breach of this Contract subject to penalties up to and including termination of this Contract, and that the City retains the legal right to inspect the papers of any employee who works on the Contract to ensure compliance with this warranty.
Contractor hereby certifies that it does not, and will not, participate in during the term of this Contract, a boycott of Israel in accordance with A.R.S. §35-393.01. Contractor hereby agrees to indemnify and hold harmless the City, its agents and employees from any claims or causes of action relating to the City’s action based upon reliance upon this representation, including the payment of all costs and attorney fees incurred by the City in defending such an action.
Contractor must at all times during the performance of its duties under this Contract ensure that it and any person for whom Contractor is responsible remains in compliance with all rules, regulations, ordinances, statutes, or laws affecting the Services, including, without limitation, existing and future: (i) City and County ordinances and regulations, (ii) state and federal laws, and (iii) Occupational Safety and Health Administration standards.
Contractor will provide adequate, experienced personnel capable of and devoted to the successful completion of the Services within the term of this Contract.
Contractor must maintain in current status all federal, state and local licenses and permits required for the operation of the business conducted by Contractor. The City has no obligation to provide Contractor, its employees, or subcontractors any business registrations or licenses required to perform the specific Services set forth in this Contract. The City has no obligation to provide tools, equipment, or material to Contractor.
The Surprise Municipal Code requires that all persons conducting business in the City of Surprise must first obtain a license. This includes businesses within the Surprise city limits, or those outside the limits who conduct business or perform services within Surprise.
In the event either party brings any action for any relief, declaratory or otherwise, arising out of this Contract or on account of any breach or default hereof, the prevailing party is entitled to receive from the other party reasonable attorneys’ fees and reasonable costs and expenses, determined by the court sitting without a jury, which will accrue on the commencement of such action and will be enforced whether or not such action is prosecuted through judgment.