EM23-IFB-ST02_-Dysart_Rd_Impovements.pdf

INVITATION FOR BID

EM23-IFB-ST02

DYSART ROAD IMPROVEMENTS - NORTHERN PARKWAY TO

PEORIA AVENUE

City of El Mirage

10000 N El Mirage Rd

El Mirage, AZ 85335

RELEASE DATE: February 15, 2023

DEADLINE FOR QUESTIONS: March 22, 2023

RESPONSE DEADLINE: March 29, 2023, 2:30 pm

RESPONSES MUST BE SUBMITTED ELECTRONICALLY TO:

https://procurement.opengov.com/portal/elmirageaz https://procurement.opengov.com/portal/elmirageaz

City of El Mirage

INVITATION FOR BID

Dysart Road Improvements - Northern Parkway to Peoria Avenue

I. INTRODUCTION

II. INSTRUCTIONS TO BIDDER

III. GENERAL TERMS AND CONDITIONS

IV. STANDARD TERMS AND CONDITIONS

V. SPECIAL TERMS AND CONDITIONS

VI. VENDOR QUESTIONNAIRE

VII. BID FORMS & SCHEDULES

VIII. SPECIAL INSTRUCTIONS

Attachments:

A - EM20-ST02 Construction Plans_Approved Plans

B - APS Streetlight Plans WA538288

C - EM20-ST02 Special Provisions

D - Performance Bond

E - Payment Bond

F - Consent of Surety

G - Affidavit for Settlement of Claims

Invitation For Bid #EM23-IFB-ST02 Title: Dysart Road Improvements - Northern Parkway to Peoria Avenue

1. INTRODUCTION

1.1. Summary

The project includes roadway improvements for Dysart Road from Northern Parkway to Peoria Avenue and Olive Avenue from Dysart Road to the 127th Avenue alignment. Improvements include roadway widening, raised medians, bike lanes, curb and gutter, driveways, signing and striping, roadway lighting, traffic signals, interconnect conduit, landscaping and private irrigation improvements.

1.2. Background

In accordance with the City of El Mirage Procurement Code, competitive sealed Bids for the services specified herein will be received by the City Clerk at the City Clerk’s Office at the above-referenced location until the date and time referenced above (the “Bid Deadline”). Bids received by the Bid

Deadline shall be publicly opened and the Bid Price read. Bids shall be in the actual possession of the

City Clerk on, or prior to, the Bid Deadline date. Late Bids shall not be considered except as provided in the City Purchasing Code. Bids shall be submitted in a sealed envelope with the Solicitation Number and the Bidder’s name and address clearly indicated on the front of the envelope.

* The City of El Mirage reserves the right to amend the solicitation schedule as necessary.

1.3. Contact Information

Valerie Ojeda

Procurement Administrator

10000 N El Mirage Rd

El Mirage, AZ 85335

Email: vojeda@elmirageaz.gov

Phone: (623) 876-2953

Department:

Development Services

1.4. Timeline

Release Project Date February 15, 2023

Pre-Proposal Meeting (Non-Mandatory) March 8, 2023, 11:00am

10000 North El Mirage Road

El Mirage, Arizona 85335

Cinnabar Conference Room, City Hall

Question Submission Deadline March 22, 2023, 5:00pm mailto:vojeda@elmirageaz.gov tel:(623)876-2953

Bid Submission Deadline March 29, 2023, 2:30pm

Bids will be opened at City Hall located at 10000

North El Mirage Road, El Mirage, AZ 85335

You may also join vis Microsoft Teams at the below link:

https://teams.microsoft.com/l/meetup-join/19%3ameeting_MGNiMTZmY2QtZDZmYi00ZTli

LWJhNWQtZDYxYWVmZGZhYjcx%40thread.v2/0?co ntext=%7b%22Tid%22%3a%22b8358c83-f4b6-43fb-b8fb-

1cdbc1d692aa%22%2c%22Oid%22%3a%22dd1ccf6f

-7c35-4983-ac20-d386d449202a%22%7d

Meeting ID: 225 208 273 368

Passcode: 8dRLEu

Or call in (audio only)

+1 480-561-6082,,80306999# United States, Phoenix

Phone Conference ID: 803 069 99#

Contract Award Pending City Council Approval https://teams.microsoft.com/l/meetup-join/19%3ameeting_MGNiMTZmY2QtZDZmYi00ZTliLWJhNWQtZDYxYWVmZGZhYjcx%40thread.v2/0?context=%7b%22Tid%22%3a%22b8358c83-f4b6-43fb-b8fb-1cdbc1d692aa%22%2c%22Oid%22%3a%22dd1ccf6f-7c35-4983-ac20-d386d449202a%22%7d https://teams.microsoft.com/l/meetup-join/19%3ameeting_MGNiMTZmY2QtZDZmYi00ZTliLWJhNWQtZDYxYWVmZGZhYjcx%40thread.v2/0?context=%7b%22Tid%22%3a%22b8358c83-f4b6-43fb-b8fb-1cdbc1d692aa%22%2c%22Oid%22%3a%22dd1ccf6f-7c35-4983-ac20-d386d449202a%22%7d https://teams.microsoft.com/l/meetup-join/19%3ameeting_MGNiMTZmY2QtZDZmYi00ZTliLWJhNWQtZDYxYWVmZGZhYjcx%40thread.v2/0?context=%7b%22Tid%22%3a%22b8358c83-f4b6-43fb-b8fb-1cdbc1d692aa%22%2c%22Oid%22%3a%22dd1ccf6f-7c35-4983-ac20-d386d449202a%22%7d https://teams.microsoft.com/l/meetup-join/19%3ameeting_MGNiMTZmY2QtZDZmYi00ZTliLWJhNWQtZDYxYWVmZGZhYjcx%40thread.v2/0?context=%7b%22Tid%22%3a%22b8358c83-f4b6-43fb-b8fb-1cdbc1d692aa%22%2c%22Oid%22%3a%22dd1ccf6f-7c35-4983-ac20-d386d449202a%22%7d https://teams.microsoft.com/l/meetup-join/19%3ameeting_MGNiMTZmY2QtZDZmYi00ZTliLWJhNWQtZDYxYWVmZGZhYjcx%40thread.v2/0?context=%7b%22Tid%22%3a%22b8358c83-f4b6-43fb-b8fb-1cdbc1d692aa%22%2c%22Oid%22%3a%22dd1ccf6f-7c35-4983-ac20-d386d449202a%22%7d https://teams.microsoft.com/l/meetup-join/19%3ameeting_MGNiMTZmY2QtZDZmYi00ZTliLWJhNWQtZDYxYWVmZGZhYjcx%40thread.v2/0?context=%7b%22Tid%22%3a%22b8358c83-f4b6-43fb-b8fb-1cdbc1d692aa%22%2c%22Oid%22%3a%22dd1ccf6f-7c35-4983-ac20-d386d449202a%22%7d https://teams.microsoft.com/l/meetup-join/19%3ameeting_MGNiMTZmY2QtZDZmYi00ZTliLWJhNWQtZDYxYWVmZGZhYjcx%40thread.v2/0?context=%7b%22Tid%22%3a%22b8358c83-f4b6-43fb-b8fb-1cdbc1d692aa%22%2c%22Oid%22%3a%22dd1ccf6f-7c35-4983-ac20-d386d449202a%22%7d

2. INSTRUCTIONS TO BIDDER

2.1. IMPORTANT INSTRUCTIONS FOR ELECTRONIC SUBMITTAL

The City is only accepting electronic bid submissions. Bidders shall create a FREE account with OpenGov by signing up at https://procurement.opengov.com/signup. Once you have completed account registration, browse back to this page, click on "Submit Response", and follow the instructions to submit the electronic proposal.

2.2. INFORMATION FOR BIDDERS (IFB) DOCUMENT AND ATTACHMENTS

This document includes the following:

• IFB Document o Introduction o Instructions to Bidder o General Terms and Conditions o Standard Terms and Conditions o Special Terms and Conditions o Vendor Questionnaire

▪ Notice of Invitation to Bod

▪ Bid Bond

▪ List of Subcontractors

▪ References o Bid Forms & Schedule

• Special Instructions

• Attachment A - Dysart Road Improvements Plan Set

• Attachment B - APS Streetlight Plan Set

• Attachment C - Special Provisions o Appendix A - Geotechnical Report o Appendix B - Materials Acceptance Sampling and Testing Table o Appendix C - Pothole Plans and Report o Appendix D - Service Interruption Notice https://procurement.opengov.com/signup o Appendix E - Landscaping and Irrigation Specifications - Roadway Medians & Parcel 509-18-

968E

• Attachment D - Performance Bond

• Attachment E - Payment Bond

• Attachment F - Consent of Surety

• Attachment G - Affidavit for Settlement of Claims

2.3. PREPARATION OF BID

a. All bids shall be submitted electronically via opengov.com on the forms provided in this Invitation to

Bid package. Emailed, Telegraphic (facsimile), electronic or mailgram bids will not be considered. The following forms will be required with the Bid Submittal:

1. Bid Form & Schedule - Section 7

2. Questionnaire - Section 6

3. Bid Bond - Section 6

4. List of Subcontractors - Section 6

Failure to provide any of the above items with the Bid Submittal may be grounds for disqualification.

b. If price is a consideration and in case of error in the extension of prices in the bid, the unit price shall govern. No bid shall be altered, amended, or withdrawn after the specified bid due date and time.

c. Periods of time, stated as a number of days, shall be calendar days.

d. Bid due date and time is stated as local Arizona time.

e. It is the responsibility of all Offerors to examine the entire Invitation to Bid package and seek clarification of any item or requirement that may not be clear and to check all responses for accuracy before submitting a bid. Negligence in preparing a Bid confers no right of withdrawal after bid due date and time.

f. The following documents are due within ten (10) days after the Notice of Award:

1. Performance Bond - Attachment D

2. Payment Bond - Attachment E

g. The following documents are due after completion of the project and before final payment:

1. Consent of Surety - Attachment F

2. Affidavit for Settlement of Claims - Attachment G

2.4. INQUIRIES

Any question related to the Invitation to Bid shall be directed to the name appearing as the contact in

Section 1.3 of this Invitation to Bid (IFB). The Offeror shall not contact or ask questions of the department for which the requirement is being procured. Questions should be submitted in writing when time permits. The contact may require any and all questions be submitted in writing at the City’s sole discretion. Any correspondence related to an Invitation to Bid should refer to the appropriate

Invitation to Bid number, page, and section number. Offeror shall identify the envelope as containing questions since such an envelope may be identified as a sealed bid and may not be opened until after the official Invitation to Bid due date and time.

2.5. PROSPECTIVE BIDDERS' CONFERENCE

A Prospective Bidders’ Conference may be held. If scheduled, the date and time of the Prospective

Bidders’ Conference will be indicated in Section 1.4 of this IFB. The Prospective Bidders’ Conference may be designated as mandatory or non-mandatory in Section 1.4 of this IFB. Bids shall not be accepted from Bidders who do not attend a mandatory Prospective Bidders’ Conference. Bidders are strongly encouraged to attend those Prospective Bidder’s Conferences designated as non-mandatory. The purpose of the Prospective Bidders’ Conference will be to clarify the contents of the IFB in order to prevent any misunderstanding of the City’s requirements.

Any doubt as to the requirements of this IFB or any apparent omission or discrepancy should be presented to the City at the Prospective Bidders’ Conference. The City will then determine if any action is necessary and may issue a written amendment or addendum to the IFB. Oral statements or instructions will not constitute an amendment or addendum to the IFB.

2.6. LATE BIDS

Late Bids will not be considered, except as provided by the City of El Mirage Procurement Code. A vendor submitting a late bid shall be so notified.

2.7. WITHDRAWAL OF BID

At any time prior to the specified bid due date and time, a Vendor (or designated representative) may withdraw the bid.

2.8. AMENDMENT OF BID

Receipt of a Solicitation Amendment shall be acknowledged by signing and returning the document with the offer at the specified bid due date and time.

2.9. VENDOR REGISTRATION

After the award of a contract, the successful Vendor shall complete a Vendor Registration Application and submit it to the City of El Mirage Finance Department.

2.10. AWARD OF CONTRACT

a. Unless the Offeror states otherwise, or unless provided within this Invitation to Bid, the City reserves the right to award by individual line item, by group of line items, or as a total, whichever is determined by the City Manager to be most advantageous to the City.

b. The City of El Mirage reserves the right to award based on the bid that presents the City with the best overall value, which may or may not be the lowest bid. The City also reserves the right to adjust the scope of the project, in conjunction with the lowest responsible bidder, in order to keep the project within the available budget.

c. § 30.25 DETERMINATION OF LOWEST RESPONSIBLE BIDDER - Unless the Council or purchasing agent shall exercise the right of rejection as provided by § 30.24, the purchase or contract shall be made from and with the lowest responsible bidder for the entire purchase or contract or for any part thereof. In determining the lowest responsible bidder, the Council and City Manager shall consider:

1. The ability, capacity, and skill of the bidder to perform the contract or provide the service required;

2. Whether the bidder can perform the contract or provide the services promptly or within the specified time, without delay or interference;

3. The quality of performance of previous contracts;

4. The previous and existing compliance by the bidder with laws and ordinances of the City;

5. The financial resources and ability of the bidder to perform the contract; and

6. The quality, availability, and adaptability of the supplies or services.

d. Notwithstanding any other provision of this Invitation to Bid , the City expressly reserves the right to:

1. Waive any immaterial defect or informality; or

2. Reject any or all bids, or portions thereof; or

3. Reissue an Invitation to Bid.

e. A response to an Invitation to Bid is an offer to contract with the City based upon the terms, conditions and specifications contained in the City’s Invitation to Bid and the written amendments thereto, if any. Bids do not become contracts unless and until they are accepted and executed by the

City Manager and the City Council. A contract is formed when written notice of award(s) is provided to the successful Offeror(s). 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 Invitation to Bid; unless modified by an Amendment.

3. GENERAL TERMS AND CONDITIONS

THE FOLLOWING TERMS AND CONDITIONS ARE AN EXPLICIT PART OF THE SOLICITATION AND ANY

RESULTANT CONTRACT.

3.1. CERTIFICATION:

By signature in the Offer section of the Offer and Contract Award page the Contractor certifies:

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.

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 vendor may be debarred.

3.2. BRIBES AND KICK-BACKS:

The General Contractor shall not by any means:

a. Induce any person or entity employed in the construction of the Project to give up any part of the compensation to which that person or entity is entitled;

b. Confer on any governmental, public or quasi-public official having any authority or influence over the

Project, any payment, loan subscription, advance, deposit of money, services or anything of value, present or promised;

c. Offer nor accept any bribes or kick-backs in connection with the Project from or to any individual or entity, including any of its trade contractors, subcontractors, consultants, suppliers or manufacturers of

Project goods and materials;

or,

d. Without the express written permission of the Owner, call for or by exclusion require or recommend the use of any subcontractor, consultant, product, material, equipment, system, process or procedure in which the General Contractor has a direct or indirect proprietary or other pecuniary interest.

3.3. APPLICABLE LAW:

In the performance of this agreement, contractors shall abide by and conform to any and all laws of the

United States, State of Arizona and City of El Mirage including but not limited to federal and state executive orders providing for equal employment and procurement opportunities, the Federal

Occupational Safety and Health Act and any other federal or state laws applicable to this agreement.

This contract shall be governed by the City. City and Contractor shall have all remedies afforded each by the Uniform Commercial Code, as adopted in the State of Arizona, except as otherwise provided in this contract or in statutes pertaining specifically to the City. This contract shall be governed by the laws of the State of Arizona. Any lawsuit pertaining to this contract may be brought only in courts in the State of

Arizona.

This contract is subject to the provisions of ARS §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 the 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 of any other party to the contract in any capacity or a consultant to any other party of the contract with respect to the subject matter of the contract.

3.4. LEGAL REMEDIES:

All claims and controversies shall be subject to resolution according to the terms of the City of El Mirage

Procurement Code. 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 shall be entitled to receive from the other party reasonable attorneys’ fees and reasonable costs and expenses, determined by the court sitting without a jury or arbitration board, which shall be deemed to have accrued on the commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment or by arbitration award.

3.5. CONTRACT:

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, price sheet(s) 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 Vendor’s offer. The

Solicitation shall govern in all other matters not affected by the written contract.

3.6. CONTRACT AMENDMENTS:

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.

3.7. CONTRACT APPLICABILITY:

The Offeror shall substantially conform to the terms, conditions, specifications and other requirements found within the text of this Solicitation. All previous agreements, contracts, or other documents, which have been executed between the Offeror and the City are not applicable to this Solicitation or any resultant contract.

3.8. PROVISIONS REQUIRED BY LAW:

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 herein, 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 forthwith be physically amended to make such insertion or correction.

3.9. SEVERABILITY:

The provisions of this contract are severable to the extent that any provision or application held to be invalid shall not affect any other provision or application of the contract, which may remain in effect without the invalid provision, or application.

3.10. RELATIONSHIP TO PARTIES:

It is clearly understood that each party will act in its individual capacity and not as an agent, employee, partner, joint venture, or associate of the other. An employee or agent of one party shall not be deemed or construed to be the employee or agent of the other for any purpose whatsoever. The Contractor is advised that taxes or Social Security payments will not be withheld from any City payments issued hereunder and that the Contractor should make arrangements to directly pay such expenses, if any.

3.11. INTERPRETATION-PAROL EVIDENCE:

This contract represents the entire agreement of the Parties with respect to its subject matter, and 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 herein, or in any other contemporaneous written agreement executed for the purposes of carrying out the provisions of this contact. This contract may not be changed, modified or rescinded except as provided for herein, absent a written agreement signed by both Parties. Any attempt at oral modification of this contract shall be void and of no effect.

3.12. ASSIGNMENT-DELEGATION:

No right or interest in this contract nor delegation of any duty of Contractor shall be made without prior written permission of the City.

3.13. RIGHTS AND REMEDIES:

No provision in this document or in the vendor’s offer shall be construed, expressly or by implication, as waiver by the City of any existing or future right and/or remedy available by law in the event of any claim of default or breach of contract. The failure of the City to insist upon the strict performance of any term or condition of the contract or to exercise or delay the exercise of any right or remedy provided in the contract, or by law, or the City’s acceptance of and payment for materials or services, shall not release the Contractor from any responsibilities or obligations imposed by this contract or by law, and shall not be deemed a waiver of any right of the City to insist upon the strict performance of the

Contract.

3.14. INDEMNIFICATION:

To the fullest extent permitted by law, the Contractor shall defend, indemnify and hold harmless the

City, its agents, representatives, officers, directors, officials and employees from and against all claims, damages, losses and expenses (including but not limited to attorney fees, court costs, and the cost of appellate proceedings), relating to, arising out of, or alleged to have resulted from the acts, errors, mistakes, omissions, work or services of the Contractor, its employees, agents, or any tier of subcontractors in the performance of this Contract. Contractor’s duty to defend, hold harmless and indemnify the City, its agents, representatives, officers, directors, officials and employees shall arise in connection with any claim, damage, loss or expense that is attributable to bodily injury, sickness, disease, death, or injury to, impairment, or destruction of property including loss of use resulting therefrom, caused by any acts, errors, mistakes, omissions, work or services in the performance of this

Contract including any employee of the Contractor or any tier of subcontractor or any other person for whose acts, errors, mistakes, omissions, work or services the Contractor may be legally liable.

The amount and type of insurance coverage requirements set forth herein will in no way be construed as limiting the scope of the indemnity in this paragraph.

3.15. OVERCHARGES BY ANTITRUST VIOLATIONS:

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 services used to fulfill the Contract.

3.16. FORCE MAJEURE:

Except for payment for sums due, neither party shall 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; riots;

strikes; mobilization; labor disputes; civil disorders; fire; floods; lockouts, injunctions-intervention-acts, or failures or refusals to act by government authority; 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 shall be deemed to commence when the party declaring force majeure notifies the other party of the existence of the force majeure and shall 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 shall not include the following occurrences:

a. Late delivery of equipment or materials caused by congestion at a manufacturer’s plant or elsewhere, an oversold condition of the market, inefficiencies, or similar occurrences.

b. Late performance by a subcontractor unless the delay arises out of a force majeure occurrence in accordance with this Force Majeure term and Condition.

Any delay or failure in performance by either party hereto shall not constitute default hereunder or give rise to any claim for damages or loss of anticipated profits if, and to the extent that such delay or failure is caused by force majeure. If either party is delayed at any time in the progress of the work by force majeure, then the delayed party shall notify the other party in writing of such delay within forty-eight

(48) hours commencement thereof and shall specify the causes of such delay in such notice. Such notice shall be hand delivered or mailed Certified-Return Receipt and shall make a specific reference to this article, thereby invoking its provisions. The delayed party shall cause such delay to cease as soon as practicable and shall notify the other party in writing. The time of completion shall be extended by contract modification for a period of time equal to the time that the results or effects of such delay prevent the delayed party from performing in accordance with this contract.

3.17. RIGHT TO ASSURANCE:

Whenever one party to this contract in good faith has reason to question the other party’s intent to perform, he/she 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.

3.18. RIGHT TO AUDIT RECORDS:

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.

3.19. WARRANTIES:

Contractor warrants that all material, service or construction 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 material/service 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.

3.20. INSPECTION:

All material and/or services are subject to 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 to do any or all of the following:

a. Waive the non-conformance.

b. Stop the work immediately.

c. Bring material into compliance.

This shall be accomplished by a written determination from the City.

3.21. TITLE AND RISK OF LOSS:

The title and risk of loss of material and/or service shall not pass to the City until the City actually receives the material or service at the point of delivery, unless otherwise provided within this Contract.

3.22. DEFAULT IN ONE INSTALLMENT TO CONSTITUTE TOTAL BREACH:

Contractor shall deliver conforming materials in each installment and may not substitute nonconforming materials. Delivery of nonconforming materials or a default of any nature, at the option of the City, shall constitute a breach of the Contract as a whole.

3.23. SHIPMENT UNDER RESERVATION PROHIBITED:

Contractor is not authorized to ship materials under reservation and no tender of a bill of lading will operate as a tender of the materials.

3.24. LIENS:

All materials, service or construction shall be free of all liens, and if the City requests, a formal release of all liens shall be delivered to the City.

3.25. LICENSES:

Contractor shall have at the time of bid submittal, and shall maintain in current status, all Federal, State and Local licenses and permits required for the operation of the business conducted by the Contractor as applicable to this Contract. The conclusion of the issuing authority in each case is to be deemed conclusive for the purposes of complying with this provision. By submitting a bid for this public contract, you agree that, with respect to the contract, substantial compliance does not meet the minimum requirements of this or any provision hereof, or of any applicable law or other authority, and that strict compliance alone is adequate to meet those requirements, unless the City consents to such substantial compliance in writing at the time of bid submittal. The determination shall be made by the City.

3.26. PATENTS AND COPYRIGHTS:

All services, information, computer program elements, reports and other deliverables, which may be patented or copyrighted 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.

3.27. PREPARATION OF SPECIFICATIONS BY PERSONS OTHER THAN CITY

PERSONNEL:

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.

3.28. COST OF BID/PROPOSAL PREPARATION:

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.

3.29. PUBLIC RECORD:

All offers submitted in response to this solicitation shall become the property of the City and shall become a matter of public record available for review, subsequent to the award notification, in accordance with the City’s Procurement Code.

3.30. ADVERTISING:

Contractor shall not advertise or publish information concerning this Contract, without prior written consent of the City.

3.31. DELIVERY ORDERS:

The City shall issue a Purchase Order for the material and/or services covered by this contract. All such documents shall reference the contract number as indicated on the Offer and Contract Award.

3.32. FUNDING:

Any contract entered into by the City of El Mirage is subject to funding availability. Fiscal years for the

City of El Mirage are July 1 to June 30. The City Council approves all budget requests. If a specific funding request is not approved, the contract shall be terminated.

3.33. PAYMENT:

A separate invoice shall be issued for each shipment of material or service performed, and no payment will be issued prior to receipt of material and/or services and correct invoice.

3.34. MATERIALS, EQUIPMENT, APPARATUS:

Materials, equipment, apparatus or other products are specified by manufacturer, brand name, type of catalog number, such designation is to establish standards of desired quality and style and shall be the basis of the bid. Should the Contractor propose to furnish materials and equipment other than those specified, as permitted by the "or approved equal" clauses he/she shall submit a written request as an alternate to the bid with his/her proposal for any or all substitutions. Such a request shall be accompanied by complete descriptive literature (manufacturer, brand name, catalog number, etc.) and technical data for all items and shall indicate any addition or deduction to the CONTRACT price. Where such substitutions alter the design or space requirements indicated on the plans the Contractor shall include all items of cost for the revised design and construction including cost of all allied trades involved. Acceptance or rejections of the proposed substitutions will be made on the basis of whether or not the specifications are met and the CITY's best interests are served as determined by the authorized representative and the CITY.

3.35. SUBCONTRACTOR’S LIST:

The Contractor shall submit a list of subcontractors and major material suppliers as part of the OFFER.

The list needs to include any subcontractor or supplier whose contract is anticipated to be above 5% of the total bid price submitted. The name of any subcontractors or suppliers whose contract is anticipated to be at or below 5% of the total bid price is not required to be provided on the List.

3.36. FEDERAL AND STATE EMPLOYMENT IMMIGRATION LAWS.

To the extent applicable under A.R.S. § 41-4401, Contractor warrants its and its subcontractors’ compliance with all federal immigration laws and regulations that relate to their compliance with the E-verify requirements under A.R.S. § 23-214(A). Contractor’s or its subcontractors’ breach of the above-mentioned warranty shall be deemed a material breach of the Agreement and may result in the termination of the Agreement by the City of El Mirage. The City of El Mirage retains the legal right to randomly inspect the papers and records of Contractor and its subcontractors to ensure that the

Contractor and its subcontractors are complying with the above-mentioned warranty.

The Contractor warrants to keep the papers and records open for random inspection during normal business hours by the City of El Mirage. The Contractor shall cooperate with the City of El Mirage’s random inspections including granting the City entry rights to Contractor’s property to perform the random inspections and waiving its right to keep such papers and records confidential. The failure of

Contractor to comply with this warranty regarding the keeping of papers and records and cooperating with the City’s random inspections shall constitute a material breach of the Agreement and the City shall have the right to immediately terminate the Agreement.

The Contractor further agrees to include the following language in all subcontracts entered into by

Contractor with any person or entity to perform work on the Agreement and to terminate the agreement with any subcontractor who violates any of the warranties set forth in said language below.

To the extent applicable under A.R.S. § 41-4401, Subcontractor warrants to Contractor and the City of El

Mirage Subcontractor’s compliance with all federal immigration laws and regulations that relate to its compliance with the E-verify requirements under A.R.S. § 23-214(A). Subcontractor’s breach of the above-mentioned warranty shall be deemed a material breach of the Agreement and may result in the termination of the subcontract by Contractor at the direction of the City of El Mirage. Subcontractor further acknowledges the City of El Mirage’s right to randomly inspect the papers and records of

Subcontractor to ensure that Subcontractor is complying with the above-mentioned warranty.

Subcontractor warrants to keep the papers and records open for random inspection during normal business hours by City of El Mirage. Subcontractor shall cooperate with City of El Mirage’s random inspections including granting the City entry rights to Subcontractor’s property to perform the random inspections and waiving their respective rights to keep such papers and records confidential. The failure of Subcontractor to comply with this warranty regarding the keeping of papers and records and failure to cooperate with the City’s random inspections shall constitute a material breach of the Agreement and the City shall have the right to immediately require Contractor to terminate the Agreement with

Subcontractor.

3.37. ISRAEL BOYCOTT:

Per A.R.S. §§ 35-393 and 35-393.01, Contractor certifies that they are not currently engaged in, and agrees for the duration of the agreement to not engage in, a boycott of Israel.

3.38. SUBCONTRACTOR / SUPPLIER CONTRACTS

The Contractor shall enter into written contracts with its subcontractor(s) and supplier(s), if any, and those written contracts shall be consistent with this Contract for Construction. It is the intent of the

Owner and the Contractor that the obligations of the Contractor’s subcontractor(s) and supplier(s), if any, inure to the benefit of the Owner and the Contractor, and that the Owner be a third-party beneficiary of the Contractor’s agreements with its subcontractor(s) and supplier(s).

a. The Contractor shall make available to each subcontractor and supplier, if any, prior to the execution of written contracts with any of them, a copy of the pertinent portions of this Contract for Construction, including those portions of the Construction documents to which the subcontractor or supplier will be bound, and shall require that each subcontractor and supplier shall similarly make copies of applicable parts of such documents available to its respective subcontractor(s) and supplier(s).

b. The Contractor shall engage each of its subcontractor(s) and supplier(s) with written contracts, which preserve and protect the rights of the Owner and include the acknowledgment and agreement of each subcontractor or supplier that the Owner is a third-party beneficiary of the contract. The Contractor’s agreements with its subcontractor(s) and supplier(s) shall require that in the event of default under, or termination of, this Contract for Construction, and upon request of the Owner, the Contractor’s subcontractor(s) and supplier(s) will perform services for the Owner.

c. The Contractor shall include in its agreements with its subcontractor(s) and supplier(s) a provision which contains the acknowledgment and agreement of the subcontractor or supplier that it has received and reviewed the applicable terms, conditions and requirements of this Contract for Construction that are included by reference in its written contract with the Contractor, and that it will abide by those terms, conditions and requirements.

3.39. NO REPLACEMENT OF DEFECTIVE TENDER

Every tender of materials 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.

3.40. NO USE OF OR PURCHASES FROM FORCED LABOR OF UYGHURS

Pursuant to and in compliance with A.R.S. § 35-394, Contractor hereby agrees and certifies that it does not currently, and agrees for the duration of this Agreement that Contractor will not, use: (1) the forced labor of ethnic Uyghurs in the People’s Republic of China; (2) any goods or services produced by the forced labor of ethnic Uyghurs in the People’s Republic of China; or (3) any contractors, subcontractors or suppliers that use the forced labor or any goods or services produced by the forced labor of ethnic

Uyghurs in the People’s Republic of China. Contractor also hereby agrees to indemnify and hold harmless the City, its officials, employees, and agents 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 as action.

4. STANDARD TERMS AND CONDITIONS

4.1. DEFINITIONS:

The terms, as used in or pertaining to the contract, are defined as follows:

CITY: The word “City” shall refer to the City of El Mirage, Arizona.

CONTRACTOR: The word “Contractor” is defined as the person, firm or corporation with whom the contract is made by the City.

CONTRACT: The word “Contract” will include the Notice of Invitation to Bid, Instructions to Bidder, Bid, Bid Bond, Performance Bond, Payment Bond, Notice of Award, Notice to Proceed, Change Order, Certificate of Insurance & Schedule A, Certificate of Completion, Contractor’s Affidavit Regarding

Settlement of Claims, Standard Terms & Conditions, General Terms & Conditions, Special Terms &

Conditions, Special Provisions, Bid Schedule, Appendices, Plans and Addenda thereto.

ENGINEER: The word “Engineer” is defined as the person, firm or corporation duly authorized by the City to act as agent in providing professional services including studies, planning, engineering design and construction administration services, inspecting materials and construction, and interpreting plans and specifications.

MATERIALS: The word “Materials” will include, in addition to materials incorporated in the project, equipment and other material used and/or consumed in the performance of the work.

SUBCONTRACTOR: The word “Subcontractor” is defined as those persons or groups of persons having a direct contract with the contractor and those who furnish material worked to a special design according to the plans and/or specifications for this work and includes those who merely furnish materials not so worked.

WORK: The word “Work” shall include all labor necessary to accomplish the construction required by the

Contract and all materials and equipment incorporated or to be incorporated in said construction.

4.2. REFERENCE STANDARDS:

a. The “Uniform Standard Specifications for Public Works Construction” and the “Uniform Standard

Details for Public Works Construction”, latest editions, which are sponsored and distributed by the

Maricopa Association of Governments (MAG), and which are hereinafter referred to as the “MAG

Specifications,” are hereby adopted as part of these contract documents.

b. If any contradiction exists between “MAG Specifications” and this solicitation document, the solicitation language shall prevail.

4.3. LAWS AND REGULATIONS:

The Contractor shall keep himself/herself fully informed of all existing and future City and County ordinances and regulations and state and federal laws and Occupational Safety and Health Standards

(OSHA) in any manner affecting the work herein specified. He/She shall at all times observe and protect and indemnify the City of El Mirage, Arizona, and its officers and agents against any claim or liability arising from or based on the violation of any such ordinances, regulations or laws. It is the responsibility of the Contractor to obtain any and all information regarding the laws and regulations, which may be referenced in the Specifications.

4.4. RIGHTS OF WAY:

The City will provide Rights-of-Way and easements for all work specified in this contract, and the

Contractor shall not enter or occupy with men, tools, equipment or materials any private ground outside the property of the City of El Mirage, Maricopa County, Arizona, without the consent of the owner.

The Contractor, at his/her own expense, is responsible for the acquisition of any additional easements or rights-of-way that he/she may desire to complete the work of this contract.

4.5. PROPOSAL QUANTITIES:

It is expressly understood and agreed by the parties hereto that the quantities of the various classes of work to be done and the material to be furnished under this Contract, which have been estimated as stated in the Bids, are only approximate and are to be used solely for the purpose of comparing, on a consistent basis, the bids offered for the work under this Contract. The Contractor further agrees that the City of El Mirage will not be held responsible if any of the quantities shall be found incorrect; and the

Contractor will not make any claim for damages or for loss of profits because of a difference between the quantities of the various classes of work as estimated and the work actually done. If any error, omission, or misstatement is found to occur in the estimated quantities, the same shall not invalidate this Contract or the whole or any part of the work in accordance with the Specifications and Plans herein mentioned, and for the prices herein agreed upon and fixed therefore, or excuse him/her from any of the obligations or liabilities hereunder, or entitle him/her to any damage or compensation except as may be provided in this contract.

4.6. FEDERAL FUNDING:

It is the responsibility of the Contractor to determine on any project if federal wage rates apply. It is also the responsibility of the Contractor to incorporate any necessary amounts in the bid to accommodate for required federal record keeping and necessary pay structures. The Contractor should contact the City of El Mirage regarding any applicable Davis Bacon wage rates.

4.7. PAYMENTS TO CONTRACTOR:

Payments will be made on the basis of itemized statements provided by the Contractor in accordance with these Specifications. Three (3) copies of an itemized statement should be submitted to the Office of the City Engineer. After verification, payments will be processed by the Management Services

Department. Payments will be mailed by the Engineering Division. The City will make a partial payment to the Contractor on the basis of an estimate prepared by the Contractor, and approved by the City

Engineer, for work completed through the last day of preceding pay period. The City will retain ten percent (10%) of each such estimate until acceptance of the project. When required by the City Engineer or his/her authorized representative for the purposes of determining the equitableness of the

Contractor’s payment request, the Contractor shall furnish evidence satisfactory to the City Engineer or his/her authorized representative, of the sums paid by the Contractor for materials, supplies and other items of expense (i.e., lien releases).

4.8. LOSSES AND DAMAGES:

All loss or damage arising out of the nature of the work to be done or from the action of the elements or from any unforeseen circumstances in the prosecution of the same, or from any unusual obstructions or difficulties which may be encountered in and/or during the prosecution of the work, or from any casualty whatsoever of every description, shall be sustained and borne by the Contractor at his/her own cost and expense.

4.9. CHARACTER AND STATUS OF WORKMEN:

Only skilled foremen and workmen shall be employed on work requiring special qualifications.

When required by the City Engineer, the Contractor shall discharge any person who is, in the opinion of the Engineer, disorderly, dangerous, insubordinate, incompetent, or otherwise objectionable. The

Contractor shall keep the City harmless from damages or claims for compensation that may occur in the enforcement of this section.

The Contractor shall be responsible for assuring the legal working status of its employees and its subcontractor’s employees.

4.10. WORK METHODS:

The methods, equipment and appliances used on the work shall be such as will produce a satisfactory quality of work, and shall be adequate to complete the contract within the time limit specified.

Except as is otherwise specified, the Contractor’s procedure and methods of construction may, in general, be of his/her own choosing, provided they follow best general practice and are calculated to secure results which will satisfy the requirements of the specifications and the supervision of the work.

The work covered by this Contract shall be carefully laid out in advance and performed in a manner to minimize interference with normal operation and utilization of the roads. The Contractor shall exercise caution during the course of this construction work to avoid damage to all known existing or possible unknown existing underground utilities. He/She shall conduct his/her construction operations in such a manner as to avoid injury to his/her personnel and to avoid damage to all utilities. Any damage done will be repaired without delay and at the expense of the Contractor.

4.11. PRE-CONSTRUCTION CONFERENCE:

Within 30 days of the issuance of the Notice of Award, the Contractor is required to attend a Pre-construction Conference. The city will contact the Contractor to schedule a specific date, time and location for the Pre-construction conference. The purpose of the meeting is to outline specific construction items and procedures and to address items which require special attention on the part of the Contractor. The Contractor may also present proposed variations in procedures which the

Contractor believes may improve constructability of the project, reduce cost, or will reduce inconvenience to the public. Any necessary coordination and procedures for Construction inspection and staking will be addressed during the Pre-construction Conference. The Contractor will be required to provide the following information at the Pre-construction Conference:

a. Names and emergency telephone numbers of key personnel involved in the project.

b. Names and telephone numbers of all subcontractors proposed for use on the project.

c. A construction progress schedule showing the estimated time for start and completion of the major items of work.

d. A payment schedule showing the estimated dollar volume of work for each calendar month during the life of the project.

e. A written proposal outlining the intended plans for maintaining continuous access to residences and businesses along the construction site, and traffic control.

f. An itemized list of all required shop drawings, material and equipment submittals and a schedule indicating the dates each of these items will be transmitted to the City for review.

Each of the above items is subject to the review and approval by the City.

4.12. NOTICE TO PROCEED:

Within 45 days of the issuance of the Notice of Award, the City may issue a written Notice to Proceed.

The Notice to Proceed shall stipulate the actual contract start date, the contract duration and the contract completion date. The time required for the Contractor to obtain permits, licenses and easements shall be included in the contract duration and shall not be justification for a delay claim by the Contractor. The time required for the Contractor to prepare, transmit and obtain approval of applicable submittals shall be included in the contract duration and shall not be justification for a delay claim by the Contractor.

No work shall be started until after all required permits, licenses, and easements have been obtained.

No work shall be started until all…