The City of Surprise, in conjunction with the Surprise Arts & Cultural Advisory Commission (SACAC) is seeking qualified artists to propose artwork that will be placed at the first and third base entrances at the Surprise Stadium.

In accordance with the City Procurement Code, competitive sealed proposals will be received by the City Procurement Division via the City's e-Procurement Portal, ProcureNow (https://secure.procurenow.com/portal/surpriseaz) until the date and time cited in this document. Proposals must be in the actual possession of the Procurement Division on or prior to the exact date and time indicated within this solicitation. Late responses will not be considered. Offerors must carefully read the entire RFP package.

Information regarding the requirements of this RFP as well as the entire information package can be downloaded from the City’s e-Procurement Portal: https://secure.procurenow.com/portal/surpriseaz.

The City shall not be held responsible for any oral instructions or formal documentation of any information exchange during a pre-proposal meeting. Any changes to this Request for Proposal will be in the form of a published amendment. All technical questions regarding this Request for Proposal must be submitted in writing via e-mail.

Please reference RFQu 322306, Procurement Manager in all your communications to the City.

Wendy Springborn
Procurement Manager

Publication: AZ Business Gazette and City of Surprise website: https://www.surpriseaz.gov/bids.aspx
Date(s): NO VALUE

Offers in response to this solicitation shall be submitted via the City’s e-Procurement Portal, OpenGov to be received no later than Thursday, September 1, 2022 at 11:00 am.

a) All proposals must be on the forms provided in this Request for Qualifications (SOQ) package. It is permissible to copy these forms if required. Faxed or e-mailed responses will not be considered.
b) The Offer and Contract Award document must be submitted with a signature by a person authorized to sign the offer.
c) If price is a consideration and in case of error in the extension of prices in the proposal, the unit price will govern. No proposal may be altered, amended, or withdrawn after the specified proposal due date and time.
d) Periods of time, stated as a number of days, will be calendar days.
e) It is the responsibility of all prospective offerors to examine the entire Request for Qualifications package and seek clarification of any item or requirement that may not be clear and to check all responses for accuracy before submitting a proposal. Negligence in preparing a SOQ confers no right of withdrawal after SOQ due date and time.

SOQs shall be submitted in via the City’s e-Procurement Portal. SOQ submissions are limited to a maximum of Seventeen (17) pages in length, excluding the Offer & Acceptance page, Cover Letter, and any other required forms. Adherence to the maximum page criteria is critical; each page side with evaluation criteria information will be counted. Pages that have photos, charts, graphs or criteria information will be counted towards the maximum number of pages. Supplemental Resumes are not allowed and will be counted towards the page limit. The SOQ response shall be submitted with the following sections:

a) Offer and Acceptance
The first section of the SOQ shall contain the Offer and Acceptance Form. The Offer and Acceptance Form shall be signed by an authorized representative of the company such as the owner, partner, or in the case of a corporation, the President, Vice President, Secretary, or other corporate officer(s) that is permitted to contract on behalf of the organization.

b) Statement of Interest
Identification of artist (Provider) including name, address, telephone number, fax number, website URL and email address. The letter must include the signature of the artist or an officer of the Provider authorized to contract for work. The letter must state the artist’s reasons for interest in this project and a description of how his/her work and/or experience relates to the project.

c) SOQ Response (Seventeen (17))

The SOQ response should address the following evaluation criterion. Please refer to Section 7-Evaluation Phases for the full description of information to include in each of the four evaluation criterion.

Demonstration of Artistic Experience:
The Offeror shall provide information that can demonstrate the ability to perform the work described in the Scope of Work. The Offeror shall include a copy of their professional resume in this section

Demonstration of Artistic Excellence:

The Offeror shall provide examples of previous work within the last 7 years. A maximum of 10 examples is permitted. Include the following information for your previous work:

The Medium of the artwork

Dimensions of the artwork

Date the artwork was created

Ability to enhance Community Identity and Vitality:

The Offeror shall provide examples of their familiarity with the community and its characteristics and provide examples of previous work, successful collaboration and projects which represent this understanding.

Demonstration of Artistic Values & Artistic Processes:

Potential to expand the range of artists and forms of artistic expression represented in the City as if supports and enriches the arts community in the City of Surprise, the West Valley and Arizona.

Any question related to the Request for Qualifications must be submitted in writing through the OpenGov Question/Answer Tab via the City's e-Procurement portal, on or before, Thursday, August 18, 2022 by 4:30 pm. Please include the section title for each question, if applicable, in order to ensure that questions asked are responded to correctly. All questions submitted and answers provided shall be electronically distributed to bidders following this solicitation on the City's e-Procurement Portal.

A prospective offerors conference may be held. If scheduled, the date and time of this conference will be indicated on the cover page of this document. The purpose of this conference will be to clarify the contents of this Request for Qualifications in order to prevent any misunderstanding of the City’s position. Any doubt as to the requirements of this Request for Qualifications or any apparent omission or discrepancy should be presented to the City. The City will then determine if any action is necessary and may issue a written amendment to the Request for Qualifications. Oral statements or instructions will not constitute an amendment to this Request for Qualifications.

Late proposals will not be considered.

At any time prior to the specified proposal due date and time, proposals may be withdrawn through the City's e-Procurement Portal, the responding firm may “unsubmit” their SOQ in OpenGov. After withdrawing a previously submitted SOQ, the responding firm may submit another SOQ at any time up to the deadline for submitting SOQs prior to the SOQ opening.

Any addenda shall be posted on the City's e-Procurement Portal and must be acknowledged by the offeror. Addenda notifications will be emailed to all persons on record as following this RFQu. Failure of any offeror to receive any such addenda or interpretation shall not relieve such offeror from any obligation under their SOQ as submitted. All addenda so issued shall become part of the contract documents.

The successful offeror must have a completed vendor registration for vendor payment with the City of Surprise Procurement Division. Vendor registration for proposal submissions shall be completed by creating a FREE account with OpenGov by signing up at https://secure.procurenow.com/signup.

An Offeror determined by the Procurement Manager to have submitted a SOQ that conforms in all material respects to the requirements of the RFQu documents.

An Offeror determined by the Procurement Manager to have the following qualities:
a) The ability, capacity, experience and skill to provide the goods and/or services in accordance with RFQu specifications;
b) The ability to provide the goods and/or services promptly, or within the time specified, without delay or interference;
c) The equipment, facilities and resources of such capacity and location to enable the Offeror to provide the goods and/or services;
d) The ability to provide future maintenance, repair, parts and service for the use of the goods and/or services purchased, if applicable;
e) The quality and adaptability of the materials, supplies or services required or necessary to the particular use;
f) The financial resources to perform the Contract.

Award(s) will be made to the responsible and responsive Offeror(s) whose SOQ(s) conforms in all material respects to the requirements and criteria set in the Request for Qualifications. The City will be the sole judge as to the acceptability of the products and/or services offered.

During the evaluation process, the City of Surprise reserves the right, where it may serve the City’s best interest, to request additional information or clarifications from proposers. At the discretion of the City of Surprise, firms submitting SOQs may be requested to take part in interviews as part of the evaluation process.
If interviews are conducted, the Evaluation Committee will determine the Offerors best suited to meet the needs of the City based on the scoring of the evaluation criteria. These Offerors will form the “Offeror Short List” that may be invited for interviews.

Interviews will be conducted at City offices. Time limitations and presentation requirements will be provided with the “Offeror Short List” notification. Each Evaluation Committee member will score each interview. Interview scores will be the sole determining factor for selection.

The City may elect, at its sole option, not to conduct interviews with Offerors. The City may request additional information or clarification of Offerors and hereby reserves the right to select the particular response to this RFQu that it believes will best serve its business and operational requirements, considering the evaluation criteria herein.

The following evaluation factors are listed in descending order of importance. Topics should be addressed in the following order for ease of evaluator interpretation and evaluation. The committee will evaluate and rank the offers, based on the following criteria & weight:

a) Demonstration of Artistic Experience: 30%
b) Demonstration of Artistic Excellence: 30%
c) Ability to enhance Community Identity and Vitality: 20%
d) Demonstration of Artistic Values & Artistic Processes: 20%

a) Unless the prospective offeror states otherwise, or unless provided within this Request for Qualifications, the City reserves the right to award by individual line item, by group of line items, or as a total, whichever is deemed most advantageous to the City.

b) A response to a Request for Qualifications is an offer to contract with the City based upon the terms, conditions and specifications contained in the City’s Request for Qualifications and the written amendments thereto, if any. SOQs do not become contracts unless and until they are accepted by the City. The contract has its inception in the award document, eliminating a formal signing of a separate contract. For that reason, all of the terms and conditions of the procurement contract are contained in the Request for Qualifications; unless modified by a Solicitation Addendum or a Contract Amendment.

c) Notwithstanding any other provision of this Request for Qualifications, The City expressly reserves the right to:
i. Waive any immaterial defect or informality: or
ii. Reject any or all proposals, or portions thereof, or
iii. Reissue a Request for Proposal.

In accordance with the City of Surprise Procurement Code, after the initial receipt of proposals, discussions may be conducted with Offerors who submit proposals determined to be reasonably susceptible of being selected for award.

The selection panel will invite up to seven semi-finalists based upon the application information requested below:

1. Demonstration of Artistic Experience:

1. Working successfully with City staff, design and engineering professionals, fabricators, stakeholders, contractors and the public

2. Completion of projects on time and within budget

3. Demonstrate responsible contract negotiation, management and project execution

4. Effective communication and organizational skills

5. Creation of artwork that can be maintained within standard City maintenance procedures and cycles

6. Ability to conceptualize, design, fabricate, and install artwork similar in scope and scale to the project being proposed

7. Ability to translate artistic concepts into a completed work of art using materials that are appropriate for public spaces, taking into consideration maintenance, long-term durability and safety

8. Previous projects or proposed ideas that are free of safety and liability issues.

9. Creation of site-specific art responsive to site characteristics and surrounding Architecture, topography, landscape and existing

a. site features

b. Future uses and users of the site where the artwork will be located

c. Social, environmental, historical, and/or other relevant contextual features

10. Experience with integrating artwork into public spaces, public buildings, and landscaped areas so the artwork does not restrict circulation, function or operational activity

11. Completion of public art projects with purpose and parameters similar to those of the proposed project

12. A demonstrated ability to address ADA regulations and guidelines as they apply to public art

2. Demonstration of Artistic Excellence:

1. Completion of previous public artworks of a quality comparable to or exceeding that of other artworks in the City’s public art collection

2. Evidence of a significant and engaging body of work

3. Ability to respond to place and community in creative, memorable and authentic ways

3. Abililty to enhance Community Identity and Vitality:

1. Familiarity with the community and its characteristics such as history, identity, environment, community goals, geography and diverse cultures

2. Previous work and successful collaborations that respond creatively to celebrate communities and the characteristics mentioned above [Section c(1)]

3. Previous works that attract visitors and residents and activate public spaces, becoming iconic and memorable destinations and gathering places

4. Previous projects that have built capacity and cooperation among members of the public sector, business interests, artists, arts organizations and the public

5. Previous work or proposed artistic process that can encourage dialogue and reflection

4. Demonstration of Artistic Values & Artistic Processes

1. Potential to expand the range of artists and forms of artistic expression represented in the City’s collection

2. Potential for the artist and public art project to support and enrich the arts community in Surprise, the West Valley and Arizona

The selection panel will invite up to seven semi-finalists to develop complete proposals. Semi-finalists may choose to submit a proposal for one or both pieces. Prior to submitting proposals, semi-finalists are welcome to visit the site to obtain a better understanding about the project. Proposals should include drawings, models(s), plus specific information on scale, medium, installation, and a detailed budget. Each semi-finalist will receive a $1,000 stipend to help compensate for out-of-pocket costs associated with the selection process. Upon evaluation, the commission may use their discretion to select more than one finalist to complete their vision.

Proposal Scope

The selection panel will shortlist up to seven artists to develop a complete proposal for a new, original signature art piece or pieces to be installed outside of the 1st and 3rd base entrance gates of Surprise Stadium. Artists must take the following points into consideration when creating their proposal:

- The art should have a general baseball nature and not be specific to either team.

- Sculptures or depictions of ball players are not desirable

- The art should stand out from what is typical of professional and recreational sports facilities

- The art may be a piece that abstractly depicts, symbolizes, or characterizes an aspect or aspects of baseball

- The selected piece is desired to be a design unique to the Phoenix metro area

- The art must incorporate lighting into the design

- Artists should consider incorporating color, and/or motion into the piece to add complexity

- Artists should keep in mind that the final piece will be visited by hundreds of thousands of people annually, and will receive exposure through promotional and social media.

- When designing the architecture of the structure, artists must utilize timeless, durable, quality, and low maintenance materials which can withstand extreme weather conditions experienced in the Phoenix metropolitan area

- Vertical elements are welcomed

- Shade and/or kinetic elements are welcomed

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

D. Specifications

E. Attachments

F. Exhibits

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.

1. All Services, information, computer program elements, reports and other deliverables, which may be patented, copyrighted, or otherwise protected by another intellectual property right and created under this Contract are the property of the City and shall not be used or released by the Contractor or any other person except with the prior written permission of the City. All documents prepared and submitted to the City by Contractor pursuant to this Contract will be the property of the City, including without limitation, all intellectual property rights to such documents prepared and submitted to the City.
2. In addition to all other indemnification obligations under this Contract, Contractor shall indemnify, defend and hold harmless the City and its council members, managers, officers, boards, commissions, officials, employees, or agents, 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 the City and/or its council members, managers, officers, boards, commissions, officials, employees, or agents 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 misuse, misappropriation, or infringement of any intellectual property rights of the City or any third-party. 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.
3. Contractor shall provide to the City a full and complete manual for any works of art that it creates or proposes to create, including, but not limited to, specifications on the material and equipment and a full maintenance and preservation plan. All such manual(s) and other documentation related to the works of art under this Contract shall be fully available for the City's use, including, without limitation, using such manual(s) to make repairs or provide maintenance to the artwork, relocate the artwork as needed, or for use as part of a solicitation and/or a contractor’s work to make such repairs, maintenance, relocations, or other uses required by City. Contractor hereby grants to the City all licenses for use of the manual(s) and other documentation for the purposes mentioned in this section.
4. Upon receipt by Contractor of the full Contract Price, the City shall have all right, title, and ownership of the artwork created under this Contract, including, without limitation, the right to display publicly or loan the work of art for display publicly and the right to film, photograph, reproduce, or otherwise create representations of the artwork (such as 2D, 3D, and AV) for any lawful purpose that the City deems fit.
5. Contractor agrees and acknowledges that should the deaccessioning of the work of art become necessary at any point, the City may proceed with deaccessioning in its sole discretion. At any time, the City shall have the right to move, relocate, change, or remove the work of art from the intended location and to store or dispose of the work of art at the City deems appropriate.
6. Contractor agrees that the City owns the original artwork created under this Contract. Contractor warrants that the design being commissioned and produced under this Contract is the original product of its own creative efforts, the work is unique, it is a singular edition, it has not been accepted for sale elsewhere, and that the design shall not be offered for sale elsewhere without the express written approval of the City.
7. Contractor shall ensure that the design for the artwork contains no material from other artworks or other copyrighted material without the prior written permission of the owner of such material where such other work is copyrighted or where such permission is otherwise required.
8. Contractor also agrees that upon final acceptance and final payment, the City shall have the irrevocable right to display the artwork and to display two-dimensional reproductions of the completed artwork. The City shall have the right to make, and to authorize the making of, photographs, videos, and other two-dimensional reproductions of the artwork for all commercial and noncommercial purposes in its absolute discretion.
9. Contractor agrees there will not be another sculpture like the artwork produced under this Contract. However, this exclusivity does not apply to Contractor's ability to continue building upon and implementing the artistic techniques, themes, materials, design experience and all other creative and technical skills required to produce future site-specific work for other locations.

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.

1. Contractor shall assume all risk of loss or damage to works of art created under this Contract prior to installation and completion. Contractor shall take such measures as are reasonably necessary to protect the work of art from loss or damage. Contractor agrees to deliver and construct the work of art free and clear of any liens and claims arising from any source.
2. Contractor shall deliver the work of art in good condition and shall control installation. In the event of physical loss or damage to the work for art prior to installation or completion, Contractor shall rectify the loss or damage by repair, restoration, replacement, or other appropriate means as soon as possible at no additional cost to the City.
3. Contractor shall inspect the installation site prior to the transportation or installation of the work of art and shall notify the City of any adverse conditions that will impact the installation of the work of art and which need correction. Failure to do so by Contractor shall be deemed as an acceptance of the conditions by Contractor.
4. Contractor is responsible for the timely installation of the work of art under this Contract. Contractor may not install the work of art until authorized to do so by the City.
5. Contractor shall supply all equipment, tools, labor, materials, and supplies to accomplish the designated tasks and services under this Contract.

Pursuant to provisions of the City Procurement Code, the City of Surprise, Procurement Division intends to establish a contract for Design, Fabrication and Installation of Public Art.

This Solicitation as well as any resultant Contract is issued under the authority of the City Procurement Manager. No alteration of any resultant Contract may be made without the express written approval of the City Procurement Manager in the form of an official Contract Amendment. Any attempt to alter any Contract without such approval is a violation of the Contract and the City Procurement Code. Any such action is subject to the legal and contractual remedies available to the City inclusive of, but not limited to, contract cancellation, suspension, and/or debarment of the Contractor.

In order to allow for an adequate evaluation, the City requires an offer in response to this Solicitation to be valid and irrevocable for One Hundred Eighty Days (180) days after the opening time and date.

The term of any resultant Contract shall commence on the date of award and shall continue for a period of One (1) Year thereafter, unless terminated, cancelled or extended as otherwise provided herein.

By mutual written Contract Amendment, any resultant Contract may be extended for supplemental periods of up to a maximum of N/A.

Firm Fixed Price

In order to assure that any ensuing Contracts will allow the City to fulfill current and future requirements, the City reserves the right to award Contracts to multiple companies. The actual utilization of any Contract will be at the sole discretion of the City. The fact that the City may make multiple awards should be taken into consideration by each potential offeror.

A price reduction adjustment may be offered at any time during the term of a Contract and shall become effective upon notice.

Any Contract resulting from this Solicitation shall be for the use of all City of Surprise departments, agencies, boards, and/or commissions.

While this Contract is for the City of Surprise, other public agencies and political subdivisions may express interest in utilizing the Contract. In addition to the City of Surprise, and with approval of the Contractor, this Contract may be extended for use by other eligible public agencies (i.e. municipalities, school districts, nonprofit educational institutions, public health institutions, community facilities districts, and government agencies of the State). Eligible public agencies may elect to utilize the contract through cooperative purchasing (or piggybacking) on the Contract and do so at their discretion. No volume is implied or guaranteed, and the contractor must be in agreement with the cooperative transaction. The Strategic Alliance for Volume Expenditures (SAVE), a group of school districts and other public agencies, have signed an intergovernmental cooperative purchase agreement to obtain economies of scale. As a member of SAVE, the City of Surprise will act as the lead agency. Any such usage by other participating public agencies must be in accordance with the ordinance, charter and/or procurement rules and regulations of the respective public agency. Potential participating public agencies (i.e. municipalities, school districts, nonprofit educational institutions, public health institutions, community facilities districts, and government agencies of the State) recognize potential equipment, logistical and capacity limitations by the contractor may limit the contractor’s ability to extend use of this Contract.

Any orders placed to the Contractor will be placed by the specific public agency participating in this purchase, and payment for purchases made under this Contract will be the sole responsibility of each participating public agency. The City of Surprise shall not be responsible for any disputes arising out of transactions made by others.

It is the policy of the City of Surprise that suppliers of Goods and/or Services to the City adhere to a policy of equal employment opportunity and demonstrate an affirmative effort to recruit, hire, and promote regardless of race, color, religion, gender, national origin, age, or disability.

A Conditional Lien Waiver and Release (referred to as "Waiver" under this section) may be requested prior to any payment made by City and is required prior to any final payment. The Waiver shall provide full, final and unconditional certification and affidavit that all of the Contractor’s obligations to contractors, subcontractors, suppliers, and other third parties for payment for labor, materials, or equipment related to the Scope of Work have been paid or otherwise satisfied. The City also reserves the right to require full, final, and unconditional waivers and release of mechanics or construction liens, releases of trust fund or similar claims, and release of security interests or encumbrances on the Project property from each contractor, subcontractor, supplier or other person or entity who has, or might have a claim against the City or the City’s property.

If liquidated damages are assessed, such damages shall be calculated at the rate specified in the Maricopa Association of Governments ("MAG") Section 108.9 per calendar day.

A. If the Contract is not terminated, the Contractor shall continue performance and be liable to the City for the liquidated damages until the Goods are delivered and/or Services performed.

B. In the event the City exercises its right of termination, the Contractor shall be liable to the City for any excess costs, and in addition, for liquidated damages until such time the City may reasonably obtain delivery or performance of similar Goods and/or Services.

It is essential that the Contractor provide adequate experienced personnel, capable of and devoted to the successful accomplishment of the Services to be performed under this Contract. The Contractor must agree to assign specific individuals to the key positions.

A. The Contractor agrees that, once assigned to work under this Contract, key personnel shall not be removed or replaced without written notice to the City.

B. If key personnel are not available for work under this Contract for a continuous period exceeding thirty (30) calendar days, or are expected to devote substantially less effort to the work than initially anticipated, the Contractor shall immediately notify the City, and shall, subject to the concurrence of the City, replace such personnel with personnel of substantially equal ability and qualifications.

Offerors who submit an Offer as a manufacturer’s representative must supplement the Offer with a letter from each manufacturer involved, certifying that the Offeror is a bona fide dealer for the specific equipment or other Goods presented, that the Offeror is authorized to submit an Offer on such equipment or other Goods, and guarantees that should the Offeror fail to satisfactorily fulfill any obligations established as a result of the anticipated contract awards, the manufacturer, upon assignment by the City, will either assume and discharge such obligations or provide for their competent assumption by one or more bona fide dealers for the balance of the Contract period.

Upon award of a Contract by the City of Surprise, the Procurement Division may procure the specific Goods and/or Services awarded by the issuance of a purchase order to the appropriate Contractor. The award of a Contract shall be in accordance with the City of Surprise Procurement Code and all transactions and procedures required by the Code for public bidding have been complied with. A purchase order for the awarded Goods and/or Services that cites a valid current Contract is the only document required for the department to order and the Contractor to deliver the Goods and/or perform the Services.

Any attempt to represent any Goods and/or services not specifically awarded as being under contract with the City of Surprise is a violation of the Contract and the City of Surprise Procurement Code. Any such action is subject to the legal and contractual remedies available to the City inclusive of, but not limited to, contract cancellation, suspension and/or debarment of the Contractor.

The equipment specified in this solicitation is dependent upon the availability of prompt professional service. In order to be considered for award, each potential contractor is required to have existing maintenance facilities with sufficient parts inventory and trained technicians experienced in providing quality service on the equipment specified. Maintenance facilities are subject to inspection by the City to determine adequacy.

All Goods offered in response to this Solicitation shall be new and in current and ongoing production, shall have been formally announced for general marketing purposes, shall be a model or type currently functioning in a user (paying customer) environment, and shall be capable of meeting or exceeding all specifications and requirements set forth in this Solicitation.

The City may award contracts for particular products and/or models of equipment as a result of this Solicitation. In the event that a product or model is discontinued by the manufacturer, the City at its sole discretion may allow the Contractor to provide a substitute for the discontinued item. The Contractor shall request permission to substitute a new product or model and provide all of the following:

A. A formal announcement from the manufacturer that the product or model has been discontinued;

B. Documentation from the manufacturer that names the replacement product or model;

C. Documentation that provides clear and convincing evidence that the replacement meets or exceeds all specifications required by the original Solicitation;

D. Documentation that provides clear and convincing evidence that the replacement will be compatible with all the functions or uses of the discontinued product or model; and

E. Documentation confirming that the price for the replacement is the same as or less than the discontinued product or model.

The City of Surprise has an ongoing requirement for the Goods indicated in this Solicitation. It is an express condition of any award that a Contractor shall maintain a reasonable stock on hand for delivery to the requesting agency. Failure to maintain such a stock may result in contract cancellation.

Offers shall be for equipment on which the original manufacturer’s serial number has not been altered in any way. Throughout the Contract term, the City reserves the right to reject any altered equipment.

All offerors are hereby notified that demonstration units of the equipment offered shall be available in Phoenix. The City of Surprise, Procurement Division must arrange a time and place for equipment demonstrations for the purpose of evaluation. Demonstrations shall be performed at no expense to the City.

Any manufacturer’s names, trade names, brand names or catalog numbers used in the specifications are for the purpose of describing and establishing the quality level, design and performance desired. Such references are not intended to limit or restrict bidding by other offerors but are intended to establish the quality, design or performance which is desired. Any Offer which proposes like quality, design or performance will be considered.

All items supplied on this Contract will comply with the current applicable federal and state Occupational Safety and Health Standards, the National Electric Code, and the National Fire Protection Association Standards. Contractor will be responsible for ensuring that the above-referenced safety standards are met and acknowledges that Contractor has general supervisory authority over the worksite, including the power to correct safety and health violations. This would include the power to require subcontractors to correct violations of the above-mentioned safety standards. Contractor is responsible for how frequently and closely Contractor needs to inspect to meet the standard of reasonable care for the above-referenced safety standards.

All Offerors shall include complete manufacturers’ descriptive literature regarding the equipment they propose to furnish. Literature shall be sufficient in detail in order to allow full and fair evaluation of the offer submitted. Failure to include this information may result in the Offer being rejected.

Prices shall be F.O.B. Destination Pre-Paid and Allowed to the delivery location designated herein. Contractor shall retain title and control of all goods until they are delivered and the contract of coverage has been completed. All risk of transportation and all related charges shall be the responsibility of the Contractor. All claims for visible or concealed damage shall be filed by the Contractor. The City will notify the Contractor promptly of any damaged goods and shall assist the Contractor in arranging for inspection.

Delivery shall be made within N/A days of receipt of a purchase order.

Prices offered shall include all applicable State and local taxes. The City will pay all applicable taxes. Taxes must be listed as a separate item on the price sheet attached to this Solicitation and on all invoices. The City of Surprise is exempt from Federal Excise Tax, including the Federal Transportation Tax.

1. Each Offer shall provide a one-year warranty/guarantee against defects in materials, workmanship and/or performance for all items.
2. Contractor represents and warrants that: (i) the work of art created under this Contract is and will be the original product of Contractor's own creative efforts, is unique, and does not infringe on any third party's copyrights or other intellectual property rights or the rights of any person; (ii) Contractor has not sold, assigned, transferred, licensed, granted, encumbered, or utilized the artwork or any element thereof or any copyright related thereto which may affect or impair the rights granted pursuant to this Contract; (iii) the artwork is free and clear of any liens from any source whatsoever; (iv) Contractor has the full power to enter into and perform this Contract and to make the grant of rights contained in this Contract; and (v) these representations and warranties shall survive the termination or other extinction of this Contract.
3. Contractor warrants to the City that the fabrication and installation of the artwork will be performed in a workmanlike manner and that the artwork will be free of defects in workmanship, fabrication, materials, or installation, and that Contractor will, at Contractor's own expense, remedy any defects found in the artwork due to faulty workmanship, fabrication, materials, or installation for a period of two (2) years after the final acceptance of the artwork by the City. Contractor shall repair or replace in the City's sole discretion and at no additional cost to the City any portion of the artwork that is found to be defective during the warranty period.
4. Contractor warrants to the City that the artwork will not require maintenance substantially in excess of that described in the maintenance recommendations to be provided by Contractor to the City set forth herein.
5. With the exception of damage due to vandalism or accident by any person other than Contractor or persons under Contractor's employ, direction, or supervision, Contractor warrants that the artwork will not contain any defect in design or construction including any defect which may be a hazard or a danger to the health and safety of the public and further agrees to cooperate in making or permitting adjustments to the work, if necessary, to eliminate hazards or potential hazards which become apparent after the artwork is accepted by the City.
6. Contractor represents and warrants that the artwork and the materials used are not currently known to be harmful to public health and safety.
7. Contractor agrees that no work or Services funded by this Contract shall inhibit, promote, or convey a religion, a political party or position, or a religious or political message or advocacy.
8. These representations and warranties shall survive the termination or other extinction of this Contract.
9. As a condition of and prior to final acceptance of the artwork by the City, Contractor will supply the City with maintenance instructions for the artwork.
10. The City is responsible for the proper care and maintenance of the artwork. During the lifetime of the artwork, Contractor will supply at no cost to Contractor, and at no charge to the City, advice as to problems arising in relation to maintenance of the artwork.
11. The City shall make every reasonable effort to consult with Contractor concerning repairs to the Artwork. The City reserves the right to obtain competitive bids and to choose the highest quality and least expensive vendor for all repairs and restoration. In the event that the City makes repairs or restoration not approved by Contractor, Contractor shall have the right, at Contractor's sole option, to have Contractor's association with the Artwork severed.

The Contractor shall establish and maintain Identity Theft policies, procedures and controls for the purpose of assuring that “personal identifying information,” as defined by A.R.S. § 13-2001(10), as amended, contained in its records or obtained from the City or from others in carrying out its responsibilities under the Contract, is protected at all times and shall not be used by or disclosed to unauthorized persons. Persons requesting such information should be referred to the City. Contractor also agrees that any “personal identifying information” shall not be disclosed other than to employees or officers of Contractor as needed for the performance of its duties under the Contract. Contractor agrees to maintain reasonable policies and procedures designed to detect, prevent and mitigate the risk of identity theft. Contractor is required under this contract to review the City of Surprise’s Identity Theft Program and to report to the Program Administrator any Red Flags as defined within that program. At a minimum, the Contractor shall have all of the following Identity Theft procedures in place:

A. Solicit and retain only the “personal identifying information” minimally necessary for business purposes related to performance of the Contract.

B. Ensure that any website used in the performance of the Contract is secure. If a website that is not secure is to be used, the City shall be notified in advance before any information is posted. The City reserves to right to restrict the use of any non-secure websites under this Contract.

C. Ensure complete and secure destruction of any and all paper documents and computer files at the end of the contracts retention requirements.

D. Ensure that office computers are password protected and that computer screens lock after a set period of time.

E. Ensure that offices and workspaces containing customer information are secure.

F. Ensure that computer virus protection is up to date

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, on its servers or any cloud-based storage solution, or obtained from the City or from others in carrying out its obligations under this Contract will not be used or disclosed by Contractor, 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. Contractor understands and agrees that any and all customer information, meter reads, consumption history, and/or other information or data obtained by Contractor in the performance of this Contract are the sole and exclusive property of the City of Surprise. The City of Surprise exclusively owns and controls said customer information, meter reads, consumption history, and/or other information or data regardless of where or how Contractor elects to collect or store said information or data.

Insurer Qualifications. Without limiting any obligations or liabilities of Contractor, Contractor must purchase and maintain, at its own expense, hereinafter stipulated minimum insurance with insurance companies duly licensed by the State of Arizona with an A.M. Best, Inc. rating of A- or above with policies and forms satisfactory to the City. Failure to maintain insurance as specified herein may result in termination of this Agreement Contract at the City’s option.

No Representation of Coverage Adequacy. By requiring insurance herein, the City does not represent that coverage and limits will be adequate to protect Contractor. The City reserves the right to review any and all of the insurance policies and/or endorsements cited in this Agreement Contract but has no obligation to do so. Failure to demand such evidence of full compliance with the insurance requirements set forth in this Agreement Contract or failure to identify any insurance deficiency will not relieve Contractor from, nor be construed or deemed a waiver of, its obligation to maintain the required insurance at all times during the performance of this Contract.

Insurance Requirements. Contractor and subcontractors shall procure and maintain until all of their obligations have been discharged, including any warranty periods under this Contract, are satisfied, insurance against claims for injury to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Contractor, his agents, representatives, employees or subcontractors.

The insurance requirements herein are minimum requirements for this Contract and in no way limit the indemnity covenants contained in this Contract. The City in no way warrants that the minimum limits contained herein are sufficient to protect the Contractor from liabilities that might arise out of the performance of the work under this contract by the Contractor, its agents, representatives, employees or subcontractors, and Contractor is free to purchase additional insurance.

Minimum Scope and Limits of Insurance: Contractor shall provide coverage with limits of liability not less than those stated below.

i. Commercial General Liability – Occurrence Form

The policy shall include bodily injury, property damage, errors and omissions, personal injury 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

Blanket Contractual Liability – Written and Oral $1,000,000

Fire Legal Liability $ 50,000

Each Occurrence $1,000,000

The policy shall be endorsed to include the following additional insured language: “The City of Surprise, its departments, agencies, boards, commissions, officers, officials, agents, and employees shall be named as additional insureds with respect to liability arising out of the activities performed by or on behalf of the Contractor".

The policy shall contain a waiver of subrogation against the City of Surprise, its departments, agencies, boards, commissions, and its officers, officials, agents, and employees for losses arising from work performed by or on behalf of the Contractor.

ii. Business Automobile Liability

Bodily Injury and Property Damage for any owned, hired, and/or non-owned vehicles used in the performance of this Contract.

Combined Single Limit (CSL) $1,000,000

The policy shall be endorsed to include the following additional insured language: “The City of Surprise, its departments, agencies, boards, commissions, officers, officials, agents, and employees shall be named as additional insureds with respect to liability arising out of the activities performed by or on behalf of the Contractor, involving automobiles owned, leased, hired or borrowed by the Contractor".

Policy shall contain a waiver of subrogation against the City, as departments, agencies, boards, commissions, officers, officials, agents, and employees for losses arising from work performed by or on behalf of the Contractor.

iii. Worker’s Compensation and Employers' Liability

The policy must include Workers' Compensation Statutory Employers' Liability Coverage

Each Accident $ 500,000

Disease – Each Employee $ 500,000

Disease – Policy Limit $1,000,000

The policy shall contain a waiver of subrogation against the City of Surprise, its departments, agencies, boards, commissions, and its officers, officials, agents, and employees for losses arising from work performed by or on behalf of the Contractor.

iv. Professional Liability

The policy must include professional liability coverage.

Each Claim $1,000,000

Annual Aggregate $2,000,000

In the event that the professional liability insurance required by this Agreement is written on a claims-made basis, Contractor warrants that any retroactive date under the policy will precede the effective date of this Agreement; and that either continuous coverage will be maintained or an extended discovery period will be exercised for a period of two (2) years beginning at the time work under this Agreement is completed.

The policy must cover professional misconduct or lack of ordinary skill for those positions defined in the Scope of Work of this Agreement.

Additional Insurance Requirements: The policies shall include, and be endorsed to include, the following provisions:

The City of Surprise, its departments, agencies, boards, commissions, officers, officials, agents, and employees wherever additional insured status is required. Such additional insured shall be covered to the full limits of liability purchased by the Contractor, even if those limits of liability are in excess of those required by this Contract.

A. Contractor’s Coverage is Primary: The Contractor's insurance coverage shall be primary insurance and non-contributory with respect to all other available sources. Coverage provided by the Contractor shall not be limited to the liability assumed under the indemnification provisions of this Contract.

B. Notice of Cancellation: Each insurance policy required by the insurance provisions of this Contract shall provide the required coverage and shall not be suspended, voided, canceled, or reduced in coverage or in limits except after thirty (30) days prior written notice has been given from the Contractor to the City. Such notice shall be sent directly to the City’s Risk Management and Procurement divisions.

C. Acceptability of Insurers: Insurance is to be placed with duly licensed or approved non-admitted insurers in the state of Arizona with an “A.M. Best” rating of not less than A- VII. The City in no way warrants that the above-required minimum insurer rating is sufficient to protect the Contractor from potential insurer insolvency.

D. Verification of Coverage: Contractor shall furnish the City with a declarations page of the liability insurance policy, as well as any amendments or riders in order to verify contractual insurance requirements are being satisfied. At a minimum, Contractor shall provide the following endorsements: (i) Additional Insured; (ii) Primary and Non-Contributory; and (iii) Waiver of Subrogation.

All certificates and endorsements are to be received and approved by the City’s Risk Management and Procurement divisions before work commences. Each insurance policy required by this Contract must be in effect at or prior to commencement of work under this Contract and remain in effect for the duration of the project. Failure to maintain the insurance policies as required by this Contract, or to provide evidence of renewal, is a material breach of contract.

All certificates required by this Contract shall be sent directly to the City Procurement division. The City project/Contract number, if applicable, and project description shall be noted on the certificate of insurance. The City reserves the right to require complete, certified copies of all insurance policies required by this Contract at any time.

Contractors’ certificate(s) shall include all subcontractors as insureds under its policies or Contractor shall furnish to the City separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to the minimum requirements identified above. Contractor shall ensure for any subcontractor policy required under this Contract and for any policy required by a Subcontract between Contractor and each subcontractor, the subcontractors’ certificates of insurance shall list the “City of Surprise” as the Certificate Holder and as an additional insured (and any other entities that are required to be listed as such), and shall identify in each certificate of insurance’s description:

(i) this Contract by Contract Number, and

(ii) any Subcontract between the subcontractor and Contractor related to that subcontractor’s work under this Contract.

Any modification or variation from the insurance requirements in this Contract shall be made by the City, whose decision shall be final. Such action will not require a formal Contract Amendment, but may be made by administrative action.