TERMS AND CONDITIONS OF CALL

Any Respondent that submits a response to this Call shall be deemed to agree to the following terms and conditions if they perform work for the City of Phoenix (the “City”):

Incurred Costs: Each Respondent will be responsible for all costs incurred in preparing a response to this Call. All materials and documents submitted by the Respondent in response to this Call or any additional requests for materials and documents made by the City for evaluation pursuant to this Call will become the property of the City and will not be returned. Respondents selected by the City to move forward in this project may be eligible to receive assistance with costs incurred as part of this Call to Artist. Respondents asked to provide supplemental information or participate in interviews may be eligible for financial assistance depending on project budget. Further information will be provided as deemed appropriate by the City.  Respondents should assume that no reimbursement will be provided unless the City explicitly indicates otherwise.

Reservation of Rights by City

The City is not obligated to accept any submittal or to negotiate with any Respondent.  The City reserves the right to accept submittals which are deemed most favorable and in the best interests of the City after all submittals have been examined and canvassed, to reject any or all submittals, and to be the sole judge of the Respondents best suited for the City.

The issuance of this Call and the acceptance of any response to this Call does not constitute an agreement by the City that any contract shall actually be entered into by the City.

Right to Disqualify: The City reserves the right to disqualify from consideration for any City work any Respondent who fails to provide information or data requested or who provides materially inaccurate or misleading information or data.  The City further reserves the right to disqualify from consideration for any City work any Respondent on the basis of any real or apparent conflict of interest that is disclosed by the Respondent or discovered through any other data or information available to the City. This disqualification is at the sole discretion of the City.  By submission of an RFQ response, each Respondent waives any right to object now or at any future time, before anybody or agency (including, but not limited to, the City Council of the City or any court) as to the exercise by the City of such right to disqualify or as to any disqualification by reason of real or apparent conflict of interest determined by the City.

Applicable Law: Any and all disputes arising under any contract resulting from this Call or otherwise in connection with this Call, shall be governed according to the laws of the State of Arizona, and the Respondent submitting a Call response agrees that the venue for any action brought to enforce provisions of a contract resulting from this Call shall be in the State of Arizona.

Compliance with Laws: Respondents who successfully obtain a City contract shall comply with all applicable laws, ordinances, statutes, codes, rules and regulations in the course of performing their duties under the contract.

No Verbal Agreements: No verbal agreement or conversation with any officer, agent, or employee of the City either before or after execution of any contract, if any, shall affect or modify any of the terms or obligations contained or to be contained in such contract.  Any such verbal agreements or conversation shall be considered as unofficial information and in no way binding upon the City or any Respondent selected from the Call to enter into an agreement.  All agreements shall be made in writing and contract changes shall be made by written amendment signed by both parties.

Non-waiver of Liability: The City, as a public entity supported by tax monies, in execution of its public trust, cannot agree to waive any lawful or legitimate right to recover monies lawfully due it. Therefore, any Respondent submitting a Call response agrees that it will not insist upon or demand any statement whereby the City agrees to limit in advance or waive any right the City might have to recover actual lawful damages in any court of law under applicable Arizona law.

Fund Appropriation Contingency: The continuation of any contract after the close of any given fiscal year of the City of Phoenix, which fiscal years end on June 30 of each year, shall be subject to the approval of the budget of the City of Phoenix providing for or covering such agreement item as an expenditure therein. The City does not represent that said budget item will be actually adopted, said determination being the determination of the City Council at the time of the adoption of the budget.

ADDITIONAL TERMS AND CONDITIONS

The following terms and conditions shall apply, be incorporated and made a part of any contract resulting from this Call:

Employment Disclaimer: Any Respondent that enters into a contract with the City as a result of this Call agrees it is not intended to constitute, create, give rise to, or otherwise recognize a joint venture, partnership or formal business association or organization of any kind, and the rights and obligations of the parties shall be only those expressly set forth in the contract.  The Respondent shall agree that no individual performing under such contract on behalf of the Respondent will be considered a City employee, and that no rights of City Civil Service, City retirement or City personnel rules shall accrue to such individual.  Such Respondent shall have total responsibility for all salaries, wages, bonuses, retirement, withholdings, worker’s compensation, other employee benefits, and all taxes and premiums appurtenant thereto concerning such individual and shall save and hold harmless the City with respect thereto.

Legal Worker Requirements

The City is prohibited by A.R.S. § 41-4401 from awarding a contract to any Respondent who fails, or whose subcontractors fail, to comply with A.R.S. § 23-214(A). Therefore, any Respondent that enters into a contract with the City as a result of this Call agrees that:

1.    The Respondent and each subcontractor it uses warrants their compliance with all federal immigration laws and regulations that relate to their employees and their compliance with A.R.S. § 23-214, Subsection A.

2.    A breach of warranty under paragraph a. shall be deemed a material breach of the contract and is subject to penalties up to and including termination of the contract.

3.    The City retains the legal right to inspect the papers of the Respondent or subcontractor employee(s) who work(s) on the contract to ensure that the Respondent or subcontractor is complying with the warranty under Paragraph a.

Lawful Presence Requirement: Any Respondent that enters into a contract with the City as a result of this Call agrees that pursuant to A.R.S. §§ 1-501 and 1-502, the City is prohibited from awarding a contract to any natural person who cannot establish that such person is lawfully present in the United States. To establish lawful presence, if Respondent is a person, Respondent will agree to produce qualifying identification and sign a City-provided affidavit affirming that the identification provided is genuine. This requirement will be imposed at the time of contract award. This requirement does not apply to business organizations such as corporations, partnerships or limited liability companies.

Transactional Conflicts of Interest: Each Respondent that enters into any contract resulting from this Call submittal agrees that the contract is subject to cancellation by the City pursuant to the provisions of A.R.S. §38-511.

General Insurance Requirements: Artists selected for City of Phoenix projects must procure and maintain insurance until all of its obligations under the resulting agreement have been discharged, including any warranty periods under this Agreement.  These insurance requirements are minimum requirements and in no way limit the indemnity covenants contained in this Contract.  The City in no way warrants that the minimum limits stated in this section are sufficient to protect the Artist from liabilities that might arise from or in connection with the performance of the contract services by the artist, its agents, representatives, employees or subcontractors.

1.    COVERAGE LIMITS

The selected artist(s) shall provide coverage with limits of liability not less than those stated below.

A.   Worker's Compensation and Employers' Liability

Workers' Compensation                                                              Statutory

Employers' Liability                                                                          

                              Each Accident                               $100,000

                              Disease – Each Employee                               $100,000

                              Disease – Policy Limit                               $500,000

                                     i.   The policy shall contain a waiver of subrogation against the City of Phoenix.

                                    ii.   Artist’s subconsultants shall be subject to the same minimum requirements identified above.

                                   iii.   This requirement shall not apply when a contractor or subcontractor is exempt under A.R.S. § 23-902(E), AND when such contractor or subcontractor executes the appropriate sole proprietor waiver form.

Automobile Liability

Bodily injury and property damage for any owned, hired, and non-owned vehicles used in the performance of the contract

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

                                     i.   The policy shall be endorsed to include the City of Phoenix as an additional insured with respect to liability arising out of the activities performed by, or on behalf of the Artist.

                                    ii.   Artist's subconsultants shall be subject to the same minimum requirements identified in this section.

                                   iii.   Artist’s insurance coverage must be primary and non-contributory with respect to all other available sources.

Notice of Cancelation: For each insurance policy required by the insurance provisions of this Contract, the Contractor must provide to the City, within two business days of receipt, a notice if a policy is suspended, voided or cancelled for any reason. Such notice must be mailed, emailed, hand delivered or sent by facsimile transmission to:                                                          

              Romeo Rabusa, Procurement Officer

             City of Phoenix Office of Arts and Culture

             200 West Washington Street, 10th Floor

             Phoenix Arizona 85003-1611

             Email: romeo.rabusa@phoenix.gov

             Phone: 602-534-8334

            Fax: 602-262-6914

Verification of Coverage: Contractor must furnish the City with certificates of insurance (ACORD form or equivalent approved by the City) as required by this Contract. The certificates for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf.

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

All certificates required by this Contract must be sent directly to:

         Romeo Rabusa, Procurement Officer

         City of Phoenix Office of Arts and Culture

         200 West Washington Street, 10th Floor

         Phoenix Arizona 85003-1611

         Email: romeo.rabusa@phoenix.gov

         Phone: 602-534-8334

        Fax: 602-262-6914

The City project/contract number and project description must be noted on the certificate of insurance. The City reserves the right to require complete, certified copies of all insurance policies required by this Contract at any time. DO NOT SEND CERTIFICATES OF INSURANCE TO THE CITY’S RISK MANAGEMENT DIVISION.

Subcontractors: Contractors’ certificate(s) must include all subcontractors as additional insureds under its policies or Contractor must furnish to the City separate certificates and endorsements for each subcontractor. All coverages for subcontractors must be subject to the minimum requirements identified above.

Indemnification: The Artist agrees to indemnify, defend, and hold harmless the City and its officers, agents, and employees from and against all Claims (as defined below) suffered or incurred by the City as a result of any claim that the Artwork, the Artwork Design, or any other work or service provided by the Artist in connection with this Agreement, infringes any patent, copyright, trademark, trade secret, or other intellectual property right(s) of a third party.

1.    Indemnification of City

The Artist shall indemnify, defend, and hold harmless the City and its officers, officials, agents and employees (“Indemnitee”) from and against any and all claims, actions, liabilities, damages, losses or expenses (including court costs, attorneys’ fees, and costs of claim processing, investigation and litigation) (“Claims”) caused or alleged to be caused, in whole or in part, by the wrongful, negligent or willful acts, or errors or omissions, of the Artist or any of its owners, officers, directors, agents, employees, or subcontractors in connection with this Agreement. This indemnity includes any claim or amount arising out of or recovered under workers’ compensation law or on account of the failure of the Artist to conform to any federal, state or local law, statute, ordinance, rule, regulation, or court decree. The Artist must indemnify Indemnitee from and against any and all Claims, except those arising solely from the Indemnitee’s own negligent or willful acts or omissions. The Artist is responsible for primary loss investigation, defense and judgment costs where this indemnification applies. In consideration of the award of this Agreement, the Artist agrees to waive all rights of subrogation against Indemnitee for losses arising from or related to this Agreement. The obligations of Artist under this provision survive the termination or expiration of this Agreement.

Artist’s Obligations for Work of Third Party

If any part of the Artist’s Services depends on proper execution or results upon the work of a third party, the Artist shall immediately report to the City any apparent discrepancies or other defects in such other work that renders it unsuitable for proper execution or results. The Artist shall not be responsible for any liability or failure to fulfill the Artist's obligations due to such reported discrepancies or defects.