- Objective —
Provide comprehensive testing services for light rail systems to ensure compliance with ISO/IEC 17025 standards. The scope includes non-destructive testing (NDT) for both girder rail and T-rail, as well as evaluation of track geometry, track strength, and rail wear.
- Purpose and Parties —
This Contract is for rail testing services and is made by and between Contractor and Valley Metro Rail, Inc. ("Valley Metro").
- Description —
- Valley Metro Rail, Inc. ("Valley Metro"), invites sealed offers for rail testing services for five years commencing on or about January 1, 2027, in accordance with the specifications and provisions contained herein or the “Effective Date,” which is upon award by Valley Metro’s Board of Directors, conditioned upon signature by an authorized representative, whichever is later.
- Notwithstanding the foregoing, any resulting Contract will terminate upon the earliest occurrence: the end of the term of the resulting Contract, including any extensions exercised or termination pursuant to the provisions of this Contract.
- Agreement —
The Scope of Work to be performed under this Contract, or materials to be provided, are as described in the Scope of Work (SOW), including any necessary or incidental work, labor, materials, shipping, and any authorized expenses. Contractor agrees to perform in accordance with requirements and terms and conditions set forth in this Contract. In consideration for Contractor's complete, satisfactory, and proper performance of this Contract, Valley Metro agrees to pay to Contractor, and Contractor agrees to accept as full compensation, the sums of money set forth in the Price Schedule at the time and in the manner and upon the terms and conditions set forth in this Contract.
- Indemnification —
- Contractor must defend, indemnify, and hold harmless Valley Metro and its officers, officials (elected or appointed), agents, representatives, and employees (“Indemnitees”) from and against any and all claims, actions, liabilities, damages, losses or expenses (including but not limited to court costs, attorney fees, expert fees, and costs of claim processing, investigation and litigation) of any nature or kind whatsoever (“Losses”) caused, or alleged to be caused, in whole or in part, by the wrongful, negligent or willful acts, or errors or omissions of Contractor or any of its owners, officers, directors, members, managers, agents, employees or subcontractors (“Contractor’s Agents”) arising out of or in connection with this Contract. This defense and indemnity obligation includes holding Indemnitees harmless for any Losses arising out of or recovered under any state’s Workers’ Compensation Law or arising out of the failure of Contractor or Contractor’s Agents to comply with any federal, state or local law, statute, ordinance, rule, regulation or court decree. Contractor’s duty to defend Indemnitees accrues immediately at the time a claim is threatened or a claim is made against Indemnitees, whichever is first. Contractor's duty to defend exists regardless of whether Contractor is ultimately found liable. Contractor must indemnify Indemnitees from and against any and all Losses, except where it is proven that those Losses are solely a result of Indemnitees' own negligent or willful acts or omissions. Contractor will be responsible for primary loss investigation, defense, and judgment costs where this indemnification applies. In consideration of the award of this Contract, Contractor waives all rights of subrogation against Indemnitees for losses arising from the work performed by Contractor or Contractor’s Agents for Valley Metro. The obligations of Contractor under this provision shall survive the termination or expiration of this Contract.
- Any settlement of claims must fully release and discharge the Indemnitees from any further liability for those claims. The release and discharge of the Indemnitees must be in writing and be subject to approval by Valley Metro through its Chief Legal Officer, which approval shall not be unreasonably withheld or delayed. If Contractor neglects or wrongfully refuses to defend the Indemnitees as provided by this Contract, any recovery or judgment against the Indemnitees for a claim covered under this Contract shall conclusively establish Contractor’s liability to the Indemnitees in connection with such recovery or judgment, and if Valley Metro desires to settle such dispute, Valley Metro shall be entitled to settle such dispute in good faith and Contractor shall be liable for the amount of such settlement, and all expenses connected to the defense, including reasonable attorney fees, and other investigative and claims adjusting expenses.
- If a claim is asserted against the Indemnitees by any person not a Party to this Contract which is predicated upon alleged errors or omissions in services or other responsibilities of Contractor, Agency shall promptly give notice of such claim by tender to Contractor and Contractor shall cooperate fully with Agency and any other member of the Indemnitees in the defense of such claim. This Section shall be applicable in the event a claim is made or suit filed in a court of law or equity or by demand for arbitration.
- In the event that a claim is tendered to Contractor by Valley Metro, Contractor shall provide status information regarding claims, if requested by Valley Metro, including loss run, denials letters, settlement of loss, etc. This information shall be sent to Valley Metro’s Risk Management Department by Contractor within ten (10) business days of the request.
- Insurance provisions set forth below are separate and independent from the indemnity provisions of this Section and do not qualify, limit, or waive the scope and magnitude of the indemnity provisions, except that payments pursuant to the insurance provided under this Contract with respect to a claim covered by the indemnity provisions shall be used to satisfy that portion of Contractor’s indemnity obligations to the extent of such payments. The indemnity provisions of this Section shall not be construed in any way to limit the scope and magnitude and applicability of the insurance provisions.
- Vendor Payment Self-Registration —
Offerors intending to submit a sealed offer must register with Valley Metro in its requisition and payments system (CORE) at Supplier Registration (oraclecloud.com). The vendor number provided must be included with the submittal information. At its sole discretion, Valley Metro may reject any offer from an Offeror who has not registered.
- Arrangement of Contractual Provisions —
For ease of reference, this Contract is divided into Scope of Work, Special Terms and Conditions, Standard Terms and Conditions, Indemnification and Insurance (also referred to separately as "clauses"), and Federal Terms and Conditions (if applicable), paragraphs and subparagraphs. While the clauses are titled, it is understood that both the use of such titles and the manner and overall arrangement of the contractual provisions are intended solely for the convenience of the parties and are without independent contractual or legal significance, other than solely for the order of precedence.
- Background —
Valley Metro operates a system consisting of both girder rail and T-rail, which requires annual inspection and non-destructive testing (NDT) to detect defects.
- Current system:
The existing Light Rail system comprises approximately 21.5 double-track route miles of T-section rail and 20 double-track route miles of girder rail.
- Streetcar Line - 3 double-track route miles.
- Indemnification - Environmental Supplement —
Contractor must defend, indemnify, and hold harmless Valley Metro and its officers, officials (elected or appointed), agents, representatives, and employees (“Indemnitees”) from and against any and all demands, claims, complaints, losses, damages, actions or causes of action, assessments, liabilities, costs or expenses including, without limitation, interest, penalties and reasonable attorney fees, expert fees, and reasonable expenses of investigation and remedial work (including but not limited to investigations and remediation by engineers, environmental consultants and similar technical personnel) asserted against or imposed upon or incurred by Indemnitees arising in connection with, or resulting from, any Environmental Law, including but not limited to, any use, generation, storage, spill, release, discharge or disposal of any Hazardous Substance that is now or comes to be located on, at, about or under the property or because of, or in connection with, the violation of any Environmental Law (hereinafter collectively referred to as “Losses”) to the extent that such Losses are caused by the fault of Contractor, its officers, officials, members, managers, agents, employees, contractors, volunteers, tenants, subtenants, invitees or licensees. Contractor's duty to defend Indemnitees accrues immediately at the time a claim is threatened or a claim is made against Indemnitees, whichever is first. Contractor’s duty to defend exists regardless of whether Contractor is ultimately found liable. As used in this section: (a) “Hazardous Substances” are those substances defined as toxic or hazardous substances, pollutants, or wastes by Environmental Law and the following substances: gasoline, kerosene, or other petroleum products, toxic pesticides and herbicides, volatile solvents, materials containing asbestos or formaldehyde, and radioactive materials; (b) “Environmental Law” means federal, state or local laws and regulations, including common law, that relate to health, safety or environmental protection; and (c) “Fault” means those nonculpable acts or omissions giving rise to strict liability under any Environmental Law pertaining to Hazardous Substances, as well as culpable conduct (negligence or willful misconduct). In consideration of the award of this Contract, Contractor agrees to waive all rights of subrogation against Indemnitees for losses arising from or related to any work performed by Contractor or Contractor’s Agents for Agency. The obligations of Contractor under this provision shall survive the termination or expiration of this Contract.
- Order of Precedence —
- Any inconsistency in this Contract shall be resolved by giving precedence to the following order: (a) modifications; (b) Valley Metro terms and conditions; (c) valley Metro technical specifications or SOW; (d) drawings, if any; (e) other documents, exhibits, and attachments generated by Valley Metro as part of this Contract; (f) the technical proposal, if any, and other Contractor submissions generated as part of this Contract. In the event of a conflict within or between provisions with the same title, the order of precedence dictates which provision prevails.
- Notwithstanding paragraph (1) above, if this Contract is funded, in whole or part, through funding provided by the Federal Government, all Contract terms mandated for inclusion by the Federal Government shall be deemed to supersede any other conflicting or inconsistent provisions of this Contract.
- Property Rights Infringement - Defense and Indemnification —
- In addition to any other indemnification required by this Contract, Contractor agrees to defend, at its own expense, and to indemnify and hold harmless Agency and its officers, agents, representatives, and employees from and against all judgments, claims, damages, suits, liabilities, settlements, costs and demands, including reasonable attorneys’ fees, suffered or incurred by Agency as a result of any claim that the technology assets infringe the patents, copyrights, or other intellectual property rights of third parties, provided that Contractor is notified in writing of such claim. Agency will reasonably cooperate with Contractor, at Contractor’s expense, to facilitate the settlement or defense of such claim. Without limiting in any way Contractor obligations set forth herein, if, as a result of any claim of infringement with respect to the technology assets, Agency is enjoined from using the technology assets, or if Contractor reasonably believes that the technology assets are likely to become the subject of a claim of infringement, Contractor may, at Contractor’s option and expense, (1) procure the right for Agency to continue to use the technology assets, or (2) replace or modify the technology assets so as to make them non-infringing and of equal or superior functionality and capability for the purpose(s) for which the technology assets were provided.
- Contractor’s obligation to indemnify, defend, and hold harmless Agency pursuant to this subsection shall be reduced to the extent the applicable infringement is caused or alleged to be caused by the alteration or modification of the technology assets by Agency (including its employees and contractors other than the Contractor and its subcontractors) other than in connection with the ordinary or expected use of the technology assets.
- E-Procurement System of Record —
Valley Metro uses an e-procurement system for electronic commerce and procurement activities. This system performs functions such as, but not limited to, publishing contracting opportunities, administering the solicitation process, vendor registration, and displaying existing contracts. The e-procurement system is the system of record for Valley Metro. As a convenience, the e-procurement system does have export functionality to present information in different formats, such as Word or PDF file formats, however, these are provided solely as a convenience. Discrepancies may exist between the electronic record and the information contained in exported files, i.e., section references. References and citations other than those in the e-procurement system are not recommended. Incorrect references or citations may cause the response to be deemed unresponsive.
- General Bid Requirements —
- Contractor shall furnish all labor, supervision, tools, materials, testing equipment, and services necessary to perform annual rail testing in accordance with this Scope of Work.
Mobilization shall include, but is not limited to:
- Providing all required testing equipment and instrumentation.
- Covering all transportation, delivery, and logistical costs associated with transporting equipment and personnel to the project site.
- Setting up, calibrating, and preparing all testing equipment for use.
- Ensuring that all equipment is fully operational prior to the start of testing.
- Ensure all onsite personnel have safety vests and work boots.
- Price —
All prices offered shall be firm and fixed for the entire term of the Contract.
- Services to be Provided —
- Contractors shall perform, at a minimum, the following services annually:
- Non-Destructive Testing (NDT):
- Detect internal and surface defects in girder rail and T-rail.
- Utilize ultrasonic, magnetic particle, and eddy current methods where applicable.
- Rail Wear Assessment:
- Measure vertical and lateral wear.
- Compare against allowable limits per FRA and industry standards.
- Contractors shall demonstrate their capability to perform all listed testing activities.
- Insurance —
- Contractor and subcontractors must procure insurance against claims that may arise from or relate to performance of the work hereunder by Contractor and its agents, representatives, employees and subcontractors. Contractor and subcontractors must maintain that insurance until all of the obligations under this Contract have been discharged, including any warranty periods under this Contract. All policies procured under this Contract shall endorse Indemnitees as additional insureds.
- Valley Metro reserves the right to amend the insurance requirements in this Section at any time during the Term of this Contract, subject to at least sixty (60) days written notice, provided that an appropriate adjustment to the payment terms of this Contract to offset any attributable increases or decreases in Contractor’s costs will be made.
- Any deductibles or self-insured retentions are not reimbursable costs.
- All required policies must be endorsed to include the following as an additional insured: Valley Metro Rail, Inc.
- Pre-Proposal Conference —
Valley Metro may schedule a pre-proposal conference. At the pre-proposal conference, Valley Metro staff will make themselves available to answer questions or provide as much additional detail as is necessary to understand the key components and technical specifics of this project. These individuals will not be available to respond to inquiries outside of the pre-proposal conference. Therefore, it is strongly recommended that representatives of interested Offerors attend the pre-proposal conference.
- Availability of Funds for the Next Fiscal Year —
Funds are not guaranteed for performance under this Contract beyond the current fiscal year that ends on June 30th. Valley Metro's obligation for performance of this Contract beyond that date is contingent upon the availability of funds from which payment for Contract purposes can be made. Valley Metro's legal liability for any payment cannot arise for performance under this Contract until funds are made available for performance and until Valley Metro notifies Contractor of the availability in writing. Any option exercised by Valley Metro that will be performed, in whole or in part, in a subsequent fiscal year is subject to availability of funds in that year and will be governed by the terms of this provision.
- Project Manager —
- The SOW will be conducted under the Procurement Officer's general directions. Authority will be delegated to the Project Manager to take the following actions:
- Act as the principal point of contact with Contractor.
- Approve in writing Contractor's progress schedule and submittals when required.
- Inspect the work for compliance with this Contract.
- Review and approve invoices and payment estimates. The Project Manager will forward invoices and receipts to accounting. The Project Manager will bring any significant discrepancies in, or disputes concerning, Contractor invoices or payments to the Procurement Officer's attention. The Project Manager must ensure that Contractor is not charging for any unauthorized expenses, such as travel or lodging in a firm fixed price contract. In those cases, requiring release of final retained percentages of payment, the Project Manager will make recommendations to the Procurement Officer in writing.
- Coordinate correspondence with the Procurement Officer if its importance significantly impacts the contractual terms and conditions.
- Evaluate Contractor's technical letters, proposals and submissions for the Procurement Officer.
- Advise the Procurement Officer of potential problems that may affect Contract performance.
- Advise the Small Business Programs Office (SBPO) if Disadvantaged Business Enterprise (DBE), Small Business Enterprise (SBE), or Minority Business Enterprise (MBE) issue(s) appear that may require investigation.
- Advise the Procurement Officer whenever the Project Manager has reason to believe that the contractual not-to-exceed amount will be exceeded.
- Prepare Valley Metro's estimate for proposed Contract modifications. Participate in negotiations for modifications.
- Approve, in writing, Contractor's progress schedule when required.
- Receive from Contractor, monthly, if applicable, DBE status reports and forward them to the SBPO.
- Receive from Contractor certified payroll reports and prepare a log sheet indicating name of Contractor and subcontractor, this Contract number, the certified payroll number (number for the payroll for the project starting with this Contract number), the timeframe of the payroll period, the statement of compliance date (first page of the report), and the date Valley Metro received the report.
- Maintain a comprehensive file/record of documents and correspondence concerning Contract activities and actions.
- Provide the Procurement Officer with a written notification after all supplies/services have been received with a statement that the Project Manager is not aware of any open issues that would preclude closeout of this Contract and that it is ready for closeout. The Project Manager will return the file containing all records, correspondence, and other documentation to the Contract Administrator.
- Execute a standard form containing a detailed performance evaluation of Contractor. If there are one or more categories in which Contractor is deemed unsatisfactory, these evaluations must be provided to it for comment.
- Provide the Contract Administrator with a written request (and requisition) to exercise any option(s) a minimum of ninety days prior to the time established in this Contract for exercise of the option.
- The presence or absence of the Project Manager or inspectors shall not relieve Contractor from any requirements of this Contract.
- The Project Manager may not re-delegate or sub-delegate authority to act on the Procurement Officer's behalf. If for whatever reason the Project Manager is unable or unwilling to fulfill responsibilities under this Contract, only the Procurement Officer can designate a new Project Manager.
- The Project Manager's name and address will be provided after award.
- Economic Price Adjustment - Labor and Material —
- Contractor shall notify Valley Metro if the rate of pay for labor (including fringe benefits) or the unit prices for material shown in the pricing proposal either increases or decreases. Contractor shall furnish this notice within 60 days after the increase or decrease or within any additional period that the Procurement Officer may approve in writing, but not later than the date of final payment under this Contract. The notice shall include Contractor’s proposal for an adjustment in this Contract's unit prices to be negotiated under paragraph (2) of this clause and shall include, in the form required by Valley Metro, supporting data explaining the cause, index or catalog used, effective date, and amount of the increase or decrease and the amount of Contractor’s adjustment proposal.
- Promptly after Valley Metro receives the notice and data under paragraph (1) of this clause, Valley Metro and Contractor shall negotiate a price adjustment in this Contract's unit prices and its effective date. However, Valley Metro may postpone the negotiations until an accumulation of increases and decreases in the labor rates (including fringe benefits) and unit prices of material shown in the price schedule results in an adjustment allowable under paragraph (3)(c) of this clause. Valley Metro shall modify this Contract:
- To include the price adjustment and its effective date, and
- To revise the labor rates (including fringe benefits) or unit prices of material as shown in the price schedule to reflect the increases or decreases resulting from the adjustment. Contractor shall continue performance pending agreement on, or determination of, any adjustment and its effective date.
- Any price adjustment under this clause is subject to the following limitations:
- Any adjustment shall be limited to the effect on unit prices of the increases or decreases in the rates of pay for labor (including fringe benefits) or unit prices for material shown in the Schedule. There shall be no adjustment for:
- Supplies or services for which the production cost is not affected by such changes;
- Changes in rates or unit prices other than those shown in the pricing schedule; or
- Changes in the quantities of labor or material used from those shown in the price schedule for each item.
- No upward adjustment shall apply to supplies or services that are required to be delivered or performed before the effective date of the adjustment.
- There shall be no adjustment for any change in rates of pay for labor (including fringe benefits) or unit prices for material which would not result in a net change of at least three percent (3%) of the then-current total Contract price. This limitation shall not apply, however, if, after final delivery of all line items, either party requests an adjustment under paragraph (2) of this clause.
- The aggregate of the increases in any Contract unit price made under this clause shall not exceed ten percent (10%) of the original unit price. There is no percentage limitation on the amount of decreases that may be made under this clause.
- Preparation of Offer —
- All forms in the Submittal Section must be completed and submitted with the Offer. The signed Non-Collusion Affidavit must be included or your offer may be deemed non-responsive.
- No offer will be altered, amended, or withdrawn after the specified offer due date and time. Key Personnel proposed in the offer may not be replaced before Contract award or Offeror shall be determined non-responsible. Valley Metro is not responsible for Offeror’s errors or omissions.
- All time periods stated as a number of days will be calendar days.
- All Offerors must examine the entire solicitation and seek clarification of any requirement that may not be clear and check all responses for accuracy before submitting an offer. Negligence in preparing an offer confers no right of withdrawal after the due date and time. Offerors are strongly encouraged to consider the following guidance when developing an offer:
-
- Consider applicable laws and/or economic conditions that may affect the cost, progress, performance, or furnishing of the products or services.
- Study and carefully correlate Offeror’s knowledge and observations with the solicitation document and other related data.
- Promptly notify Valley Metro of all conflicts, errors, ambiguities, or discrepancies that an Offeror has discovered in or between the solicitation document and such other related documents.
- Valley Metro does 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. Offeror is responsible for all costs incurred in responding to this solicitation. All materials and documents submitted in response to this solicitation become the property of v and will not be returned.
- Offerors are reminded that the specifications stated in the solicitation are the minimum level required and that offers submitted must be for products or services that meet or exceed the minimum level of all features listed explicitly in this solicitation. Offers offering less than any minimum specifications or criteria are not responsive and should not be submitted.
- Offer responses submitted for products considered by the seller to be acceptable alternates to the brand names or manufacturer’s catalog references specified herein must be submitted with technical literature and/or detailed product brochures for Valley Metro’s use to evaluate the products offered. Offers submitted without this product information may be considered non-responsive and rejected. Valley Metro will be the sole judge as to the acceptability of alternate products offered.
- Prices will be submitted on a per-unit basis by line item, when applicable. In the event of a disparity between the unit price and the extended price, the unit price will prevail unless obviously in error.
- Unless the solicitation specifically allows, alterations of electronic spreadsheet price proposals will be sufficient grounds for Valley Metro to consider your offer non-responsive.
- Types of Insurance —
- Valley Metro in no way warrants that the limits stated in this section are sufficient to protect Contractor from liabilities that might arise out of the performance of the work under this Contract by Contractor, its agents, representatives, employees or subcontractors and Contractor may purchase additional insurance as they determine necessary.
- Scope and Limits of Insurance - Contractor must provide coverage with limits of liability not less than those stated below. An excess liability policy or umbrella liability policy may be used to meet the liability limits provided that (1) the coverage is written on a “following form” basis, and (2) all terms under each line of coverage below are met. If excess or umbrella policies are used to meet the insurance requirements of this Contract, the policies shall provide coverage at least as broad as specified for the underlying coverages, and the full limits of the umbrella or excess coverage shall be available to the Indemnitees. Such excess or umbrella policies shall be endorsed to name the Indemnitees as additional insureds. Where practicable all policies procured under this Section must contain a waiver of subrogation against the Indemnitees.
- Commercial General Liability – Occurrence Form
- General Aggregate $2,000,000
- Products – Completed Operations Aggregate $1,000,000
- Personal and Advertising Injury $1,000,000
- Each Occurrence $1,000,000
- The policy must name Valley Metro as an additional insured with respect to liability for bodily injury, property damage, and personal and advertising injury with respect to premises, ongoing operations, products, and completed operations and liability assumed under an insured contract arising out of the activities performed by, or on behalf of Contractor related to this Contract.
- There shall be no endorsement or modification which limits the scope of coverage or the policy limits available to Valley Metro as an additional insured.
- Valley Metro is an additional insured to the full limits of liability purchased by Contractor.
- Contractor’s insurance coverage must be primary and non-contributory with respect to any insurance or self-insurance carried by Valley Metro.
- Automobile Liability
- Bodily Injury and Property Damage coverage for any owned, hired, and non-owned vehicles used in the performance of this Contract.
- Combined Single Limit (CSL) $1,000,000
- The policy must be endorsed to include Valley Metro as an additional insured with respect to liability arising out of the activities performed by, or on behalf of Contractor, relating to this Contract.
- Valley Metro is an additional insured to the full limits of liability purchased by Contractor.
- Contractor’s insurance coverage must be primary and non-contributory with respect to any insurance or self-insurance carried by Valley Metro.
- 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
- Policy must contain a waiver of subrogation against Valley Metro.
- This requirement does 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.
- Accepted Testing Methods —
- Contractor to perform any combination of the following acceptable Non-destructive testing (NDT) methods:
- Walking stick–based testing (for non-girder rail segments).
- Vehicle- or machinery-based rail testing methods.
- Contractor shall provide detailed descriptions of:
- Proposed testing methodologies.
- All testing equipment to be used.
- Data collection processes and reporting formats.
- All methods and equipment are subject to Valley Metro approval prior to mobilization.
- Fixed Offer Price Period —
All offers shall be firm and fixed for a period of one hundred eighty (180) calendar days from the solicitation opening date.
- Force Majeure/Excusable Delays/Time Restrictions —
- The term “force majeure” shall mean an unforeseen event or circumstance beyond the control of, and not occasioned by the fault or negligence of Contractor or Valley Metro. Neither Valley Metro nor Contractor shall be in default because of any failure to perform this Contract under its terms, if the failure arises from causes beyond the control and without the fault or negligence of Contractor or Valley Metro. Examples of these causes are acts of God, acts of war or insurrection, unusually severe weather, fires, floods, strikes, freight embargoes, epidemics, pandemics, and other events or circumstance of a like nature. In each instance, the failure to perform must be beyond the control and without the fault or negligence of the party claiming an excusable delay.
- Notwithstanding the provisions of the “Liquidated Damages” clause of this Contract (if applicable), if Contractor is delayed at any time during the performance of this Contract, by Valley Metro’s negligence or by a force majeure event, then the Procurement Officer shall extend the time for completion and/or the affected delivery date(s) if all the following circumstances occur:
- The cause of the delay arises after Contract award and Contractor could not have anticipated it by reasonable investigation before Contract award;
- Contractor demonstrates to the Procurement Officer that the completion of the work and/or affected deliveries will be actually and necessarily delayed;
- The delay cannot be avoided or mitigated by the exercise of all reasonable precautions, efforts and measures available to Contractor, whether before or after the cause of delay; and
- Contractor makes a written request and provides other information to the Procurement Officer, as described below.
- The Procurement Officer may rescind or shorten any extension previously granted, if it is subsequently determined that any information Contractor provided in support of a request for an extension of time was erroneous, that otherwise would have resulted in a denial of the request for an excusable delay. The Procurement Officer will not rescind or shorten any extension previously granted, if the erroneous information was submitted in good faith.
- Contractor's request for an extension of time shall be made within ten (10) days after Contractor knows or should know of any cause for which it may claim an excusable delay. Contractor's request shall contain any potential basis for an extension of time, describing, as fully as possible, the nature and projected duration of the delay and its effect on the completion of the work identified in the request. Within thirty (30) days after the Procurement Officer's receipt of all such information, the Procurement Officer shall advise Contractor of Valley Metro's decision on the requested extension. Where it is not reasonably practicable for the Procurement Officer to render a decision in the thirty (30) day period, the Procurement Officer shall, prior to the expiration of such period, advise Contractor of the approximate date when a decision will be rendered.
- In no event shall a delay in performance of this Contract occasioned solely by a force majeure event or the acts or omissions of any party outside of Contractor’s control be the basis for a termination for default pursuant to this Contract. In no event shall a subcontractor at any tier be deemed a party outside of Contractor’s control.
- Travel Related Expenses —
- Contractor will not be eligible for reimbursement of travel-related expenses incurred in the performance of this Contract unless specified within the scope of work.
- If the specified scope of work provides for travel and related costs the following applies (must be specified as Travel and Related Costs):
- Travel and Related Costs. All billable Travel and related costs must be pre-approved by Valley Metro. Valley Metro shall compensate Contractor for pre-approved travel per Federal Travel Regulations only. Valley Metro will not compensate for unauthorized travel and related costs. Valley Metro will pay for general travel lodging up to the Federal Per Diem rate. Federal Per Diem Website – www.gsa.gov.
- Standards and Compliance —
- ISO/IEC 17025 for laboratory competence.
- FRA Track Safety Standards for operational safety.
- Applicable ASTM and EN standards for rail testing.
- Notice of Cancellation —
For each insurance policy required by the insurance provisions of this Contract, Contractor must provide to Valley Metro, within five (5) business days of receipt, a notice if a policy is suspended, voided or cancelled for any reason. Such notice must be mailed, emailed, or hand delivered to Valley Metro, Procurement Division, 101 North 1st Avenue, Suite 1300, Phoenix, Arizona 85003, or procurement@valleymetro.org.
- Delivery —
Delivery is an important consideration and will be a factor in determining the award. A delivery time after receipt of order (ARO) must be stated in definite terms. Should there be variations in delivery times by item, the submittal should be clear concerning these variations.
- Valley Metro's Delay —
- If the performance of all or any part of this Contract’s work is delayed or interrupted in a material manner: (1) by the Procurement Officer’s act(s) in the administration of this Contract that is not expressly or impliedly authorized or (2) by the Procurement Officer’s failure to act within the time specified in this Contract, or within a reasonable time, an adjustment (excluding profit) shall be made for any increase in the cost of contract performance caused by the delay or interruption and this Contract shall be modified in writing. Adjustment shall also be made to the delivery or performance dates and any other contractual term or condition affected by the delay or interruption. No adjustment shall be made for any delay or interruption to the extent that performance was or could have been delayed or interrupted by any other cause, including the fault or negligence of Contractor, an act constituting a force majeure event, or for which an adjustment is provided or excluded under any other term or condition of this Contract.
- A claim under this clause shall not be allowed: (1) for any costs incurred more than 20 days before Contractor notifies the Procurement Officer in writing of the act or omission involved, and (2) unless the claim, in a sum certain, is asserted in writing as soon as practicable after the termination of the delay or interruption, but not later than the day of final payment under this Contract.
- The delay claim shall be accompanied by appropriate documentation specifically supporting the nature and extent of the claimed impact upon the cost and/or time required for performance. In any instance where it is not possible for Contractor to fully project such impact within the thirty (30) day period, it shall support the claim with such documentation as is then reasonably available, along with a statement of the anticipated time frame when Contractor expects to provide the additional materials. The Procurement Officer shall maintain the right throughout the process to request such additional materials as deemed reasonably required in consideration of the claim and shall be under no obligation to conclude consideration of the claim prior to review of all relevant materials. Any adjustment to this Contract's price pursuant this clause must be determined prior to final payment under this Contract.
- Acceptability of Insurers —
Insurance is to be placed with insurers duly licensed or authorized to do business in the state of Arizona and with an “A.M. Best” rating of not less than A:VII. Valley Metro in no way warrants that the required minimum insurer rating is sufficient to protect Contractor from potential insurer insolvency.
- Communications with Contractor's Staff —
To ensure efficient communication of operational needs, Valley Metro staff shall be permitted to communicate directly with Contractor’s staff regarding day-to-day issues for the purpose of inquiry as to factual performance issues. Valley Metro will not give Contractor’s staff directions concerning performance under this Contract. Issues that affect this Contract will be communicated through the Project Manager and Procurement Officer.
- Personnel Qualifications —
Contractor's Bid shall include documentation verifying that:
- Federal Railroad Administration Track Safety Certification.
- Demonstrated a minimum of five-years experience in rail NDT.
- Familiarity with ISO/IEC 17025 (International Organization for Standardization) requirements and documentation.
Valley Metro may reject any Bid that does not provide sufficient proof of personnel qualifications.
- Notice to Valley Metro of Labor Disputes —
- Whenever Contractor has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of this Contract, Contractor shall immediately give notice to the Procurement Officer, including all relevant information with respect thereto.
- Contractor agrees to insert this obligation in any subcontract it issues in relation to this Contract.
- Verification of Coverage —
- Contractor must furnish Valley Metro with certificates of insurance (ACORD form or equivalent approved by Valley Metro) 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 Valley Metro 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.
- If Contractor fails to maintain the insurance set forth in this Section, Valley Metro shall have the right, but not the obligation, to purchase said insurance at Contractor’s expense, in which case, Contractor shall promptly reimburse Valley Metro upon demand.
- All certificates required by this Contract must be sent directly to Valley Metro, Procurement Division, 101 North 1st Avenue, Suite 1300, Phoenix, Arizona 85003, or procurement@valleymetro.org. Valley Metro project/contract number and project description must be noted on the certificate of insurance. Valley Metro reserves the right to review complete copies of all insurance policies required by this Contract at any time. DO NOT SEND CERTIFICATES OF INSURANCE TO VALLEY METRO'S RISK MANAGEMENT DIVISION.
- Failure of Valley Metro to demand certification or other evidence of full compliance with this Section, or failure of Valley Metro to identify a deficiency from the documentation that is provided, shall not be construed as a waiver of Contractor’s obligations to maintain the insurance required
- Time —
Time is of the essence in the performance of this Contract. Contractor shall proceed with the performance of the work under this Contract immediately after receipt of the Notice to Proceed and shall continuously and diligently prosecute the work and specified portions thereof to completion on or before the time or times set forth in the Scope of Work. Contractor shall not commence work until it receives the Notice to Proceed, except as otherwise required by this Contract.
- Valley Metro Support —
Valley Metro will provide:
- Safe access to the work site:
- Valley Metro will handle providing track access authorization permit to the Operations Control Center (OCC).
- Escort to work site each day.
- Daily safety briefings.
- Additional personnel if determined necessary by Valley Metro.
- Exceptions —
Offeror must not take any exceptions to any terms, conditions, or material requirements of this solicitation. Offers submitted with exceptions may be deemed non-responsive and disqualified from further consideration at Valley Metro’s sole discretion. Offerors must conform to all the requirements specified in this solicitation. Valley Metro encourages Offerors to send inquiries to the Procurement Officer during the written inquiry period rather than including exceptions in their offer.
- Notification of Bankruptcy or Insolvency —
In the event Contractor or a major subcontractor enters into proceedings relating to bankruptcy, whether voluntary or involuntary, or becomes insolvent, Contractor agrees to furnish, by certified mail or electronic commerce method authorized by this Contract, written notification of the bankruptcy or insolvency to the Procurement Officer. This notification shall be furnished within five days of the initiation of the proceedings relating to bankruptcy filing or upon discovery of the insolvency. This notification shall include the date on which the bankruptcy petition was filed, the identity of the court in which the bankruptcy petition was filed, the name and contact information for the Bankruptcy Trustee, a listing of Valley Metro contract numbers and Valley Metro contracting offices for all Valley Metro contracts against which Contractor asserts final payment has not been made. This obligation remains in effect until final payment under this Contract.
- Notices and Communications —
- All notices and other communications concerning this Contract shall be written in English and shall bear the number assigned to this Contract by Valley Metro. Notices and other communications may be delivered personally, by email, by telephone facsimile, or by regular, certified, or registered mail. Notices and communications are effective when received.
- Prior to issuance of the Notice to Proceed, a notice to Valley Metro will be effective only if it is delivered to Valley Metro’s Contract Administrator, 101 N. 1st Avenue, Suite 1300 Phoenix, Arizona 85003. All correspondence shall reference this Contract number.
- Prior to the commencement of work on the project, a notice to Contractor will be effective if it is delivered to the individual who signed this Contract on behalf of Contractor at the address shown with that signature, to a corporate officer if Contractor is a corporation, to a general partner if Contractor is a partnership, or to another individual designated by Contractor in this Contractor or in a written notice to Valley Metro.
- All notices and other communications required or permitted by this Contract shall be in writing and (i) delivered in person, (ii) sent by first class mail, (iii) sent by certified first class mail, return receipt requested, postage prepaid, or (iv) by commercial or United States Postal Service overnight delivery service, to the following addresses or to such other addresses as the Parties may hereafter designate by written notice. All such notices or other communications shall be deemed delivered immediately if delivered in person, three (3) days after deposit in the United States Postal Service first class mail if mailed, upon receipt as indicated on signed certified mail receipt and on the following Business Day if sent by overnight delivery service.
Manager, Contracts & Procurement
Valley Metro
101 North First Avenue, Suite 1300
Phoenix, AZ 85003
- Subcontractors —
Contractor’s certificates shall include all subcontractors as additional insureds under its policies OR Contractor shall be responsible for ensuring and verifying that all subcontractors have valid and collectable insurance. At any time throughout the life of this contract, Valley Metro reserves the right to require proof from Contractor that its subcontractors have insurance coverage. All subcontractors providing services included under this Contract’s Scope of Work are subject to the insurance coverages identified above and must include Valley Metro as an additional insured. In certain circumstances, Contractor may, on behalf of its subcontractors, waive a specific type of coverage or limit of liability where appropriate to the type of work being performed under the subcontract. Contractor assumes liability for all subcontractors with respect to this Contract.
- Inquiries —
- All questions that arise relating to this solicitation should be posted to the appropriate area of the procurement portal and must be received by the due date indicated in the Schedule of Events. Valley Metro will not consider questions received after the deadline.
- No informal contact initiated by Offerors on the proposed service will be allowed with members of Valley Metro’s staff from the date of distribution of this solicitation until after Contract award. All questions concerning or issues related to this solicitation must be presented in writing.
- The Procurement Officer will answer written inquiries in an addendum and publish any addendums on the procurement website.
- Work Schedule Requirement —
Contractor shall provide testing schedule coordination:
- Annual testing is typically conducted in February,
- Exact dates to be coordinated with and approved by the Valley Metro.
- Work will commence after the last revenue vehicle is brought in from alignment (Approximately 4:00 am).
- Inspection of Services —
- Contractor shall maintain an inspection system acceptable to Valley Metro covering the services under this Contract. Contractor shall maintain complete records of all inspection work it performs and make them available to Valley Metro during Contract performance in the manner and in accordance with the time periods set forth in the "Audit and Inspection of Records" clause of this Contract.
- Valley Metro has the right to inspect and test all services provided under this Contract, at all times and places reasonably practicable during the term of this Contract. Valley Metro shall perform inspections and tests in a manner that will not unduly delay this Contract.
- If Valley Metro performs inspections or tests on Contractor's or subcontractor's premises, Contractor shall furnish, and shall require subcontractors to furnish, without cost, all reasonable facilities and assistance for the safe and convenient performance of such inspections or tests.
- If any of the services performed do not conform to this Contract's requirements, Valley Metro may require Contractor to perform services again in conformity with this Contract's requirements, without additional cost. When the defects in performance cannot reasonably be corrected by such further performance, Valley Metro may:
- Direct Contractor to take necessary action to ensure that future performance conforms to this Contract's requirements; and/or
- Reduce this Contract's price to reflect the reduced value of the services performed.
- If Contractor fails to comply with the provisions of the preceding paragraph, Valley Metro may:
- By contract or otherwise, perform the services and charge to Contractor any cost incurred by Valley Metro ; or
- If the Procurement Officer deems such failure to comply a material breach, terminate this Contract for default.
- Nothing contained herein shall be deemed to preclude the Procurement Officer from reducing this Contract's price due to the reduced value of nonconforming services provided to Valley Metro.
- Approval —
Any modification or variation from the insurance coverages and conditions in this Contract must be documented by an executed Contract change order.
- Addenda —
Valley Metro will not be responsible for any oral instructions made by any employees or officers of Valley Metro regarding this solicitation. Any changes will be in the form of an addendum. Offeror must acknowledge receipt of all addenda through the procurement website
- Deliverables —
Contractor shall provide detailed test reports within forty-five (45) days of completion of all testing events. Reports shall include, but not be limited to:
- Defect identification and classification.
- Rail wear measurements and compliance status.
- Recommendations for corrective actions where necessary.
- Business in Arizona —
Valley Metro will not enter into contracts with Offerors (or any company(ies)) not granted authority to transact business, or not in good standing, in the State of Arizona by the Arizona Corporation Commission unless the Offeror asserts a statutory exception prior to entering into a contract with Valley Metro.
- Licenses —
If required by law for the operation of the business or work related to this Offer, Offeror must possess all valid certifications and/or licenses as required by federal, state, or local laws at the time of submittal.
- Certifications —
- By signature, electronic signature, and/or submittal of an offer, Offeror certifies:
- The submission of the Offer did not involve collusion or other anti-competitive practices.
- Offeror must not discriminate against any employee or applicant for employment in violation of Federal or State Law.
- Offeror 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.
- Withdrawal of Offer —
At any time prior to the solicitation due date and time, Offeror (or designated representative) may withdraw the Offer within the electronic submittal system. If Offeror withdraws the Offer electronically by email to the Procurement Officer, the request to withdraw must be in the form of a letter attached to the email that includes either an image of the duly authorized representative’s signature or an electronic signature from a verifiable source, such as Adobe Sign, DocuSign or a similar verifiable software program.
- Correction of Deficiencies —
- Contractor must replace materials or correct workmanship not conforming to this Contract's requirements at no additional cost to Valley Metro. In addition, Contractor is subject to any liquidated damages specified in this Contract or actual damages that Valley Metro incurs. If Contractor fails to correct deficiencies, the Procurement Officer, may take specific action as follows:
- Replace or correct the item or work at Contractor's expense. This may be accomplished by award of a new contract or by use of Valley Metro's own resources.
- Accept the items with a reduction in price by formal modification to this Contract. The reduced price will be based upon the item’s reasonable value considering the possible cost of correcting it.
- Terminate this Contract for default. If the item or work must be re-procured, Contractor is normally liable for excess costs that Valley Metro incurs in accordance with the "Termination for Default" clause.
- First Article Inspection —
- Contractor shall make available or deliver one or more units as specified in the Contract’s specifications to Agency for first article (pre-production) tests at Contractor’s expense. The documentation provided with the unit shall contain this Contract number and the lot/item identification number. The characteristics for the first article inspection and its testing requirements are stated in the Contract's Technical Specifications or Scope of Work.
- Within ten (10) days after Agency receives or is given access to the first article, or such other time as the parties may agree, the Contracting Officer shall notify Contractor, in writing of the conditional approval, approval, or disapproval of the first article. The notice of conditional approval or approval shall not relieve Contractor from complying with all requirements of this Contract. A notice of conditional approval shall state any further action required of Contractor. A notice of disapproval shall cite the reasons for the disapproval.
- If the first article is disapproved, Contractor, at the Project Manager’s request, shall submit or make available an additional first article for testing. After each request, Contractor shall make any necessary modifications, or repairs to the first article or select another first article for testing. Contractor shall pay for all costs related to these tests. Contractor shall furnish any additional first article under this Contract within the time that the Project Manager specifies. The Contracting Officer may make an equitable adjustment to the Contract for any schedule extension related to these tests, at no cost to Agency.
- Notwithstanding the preceding paragraph, if Contractor fails to deliver or make available any first article on time, or if the Contracting Officer disapproves of any first article, Contractor may be deemed to have failed to make delivery within the meaning of the Default clause of this Contract.
- Unless otherwise provided in the Contract, Contractor:
- May deliver the approved first article as a part of the Contract quantity, if it meets all of the Contract's requirements for acceptance and was not damaged or impaired in testing; and
- Shall remove and dispose of any first article from Agency's test facility at Contractor's expense.
- Contractor is responsible for providing operating and maintenance instructions, spare parts support, and repairs to the first article during any first article test.
- Agency will inspect the first article in accordance with the Contract's requirements. A written report will be forwarded to Contractor in accordance with this provision.
- Incorporation of Offeror's Proposal —
- Valley Metro reserves the right to incorporate the successful Offeror’s proposal into any resulting Contract by reference or full text. Additionally, any modification of the otherwise successful offer prior to award of this Contract, which makes its terms more favorable to Valley Metro will be considered and may be accepted.
- If, after award of this Contract, it is discovered that changes were agreed to in writing during negotiations but were not incorporated into the resulting Contract, such changes shall be considered administrative in nature and incorporated by unilateral modification at no change in this Contract's cost or price or other terms and conditions.
- Certificates of Insurance —
Upon notification of a recommended award, Offeror will have ten (10) calendar days to submit a complete certificate of insurance in the minimum amounts and the coverages as required in the Insurance requirements of this solicitation. Insurance requirements are non-negotiable.
- Award of Contract —
- Unless otherwise indicated, award(s) will be made to the most responsive, responsible Offeror(s) that is regularly established in the service, or providing the goods, contained in this solicitation and that have demonstrated the ability to perform in an acceptable manner.
- Factors that may be considered by Valley Metro include:
- Technical capability of Offeror to accomplish the scope of work required in the Solicitation. This may include performance history on past and current government or industrial contracts;
- Demonstrated availability of the necessary manpower (both supervisory and operational personnel) and necessary equipment to accomplish the scope of work in the Solicitation;
- Safety record; and
- Offeror history of complaints and termination for convenience or cause.
- Notwithstanding any other provision of this solicitation, Valley Metro reserves the right to: (1) waive any immaterial defect or informality, (2) reject any or all offers or portions thereof, or (3) reissue a solicitation.
- A response to a solicitation is an offer to contract with Valley Metro based upon the terms, conditions, and specifications contained in Valley Metro’s solicitation. Offers do not become contracts until they are executed by Valley Metro's authorized representative. A contract has its inception in the award, eliminating a formal signing of a separate contract. For that reason, all of the terms, conditions and specifications of the procurement contract are contained in this solicitation and in any addendum or contract amendment.
- Quality Assurance/Quality Control —
Contractor shall be responsible for quality assurance and for assuring that the work conforms to the requirements of this Contract and any Valley Metro policies, if referenced in specifications. Contractor shall maintain an effective and economical quality control program planned and developed in conjunction with other Contractor functions necessary to satisfy this Contract's requirements. The quality control program shall establish and implement procedures to ensure that only acceptable supplies or services are tendered to Valley Metro for acceptance and shall demonstrate both recognition of this Contract's quality requirements and an organized approach to satisfying them. The program shall ensure that quality requirements are satisfied throughout all phases of Contract performance, including, as applicable, design development, purchasing, fabrication, processing, assembly, inspection, testing, packaging, delivery, and storage and shall provide for the early detection of actual or potential deficiencies, trends, or conditions that could result in unsatisfactory quality.
- Change Orders —
- The Procurement Officer may at any time, by a written order, and without notice to the sureties, if any, implement change orders, within the general scope of this Contract, including but not limited to one or more of the following:
- Nature and/or extent of services to be performed or supplies to be furnished;
- Time of performance (i.e., hours of the day, days of the week, etc.); or
- Place of performance of the services or delivery of the supplies.
- If, in the Procurement Officer's judgment, any change causes an increase or decrease in the cost of, or the time required for, the performance of any part of this Contract, whether or not directly changed by the order, the Procurement Officer shall make an equitable adjustment to this Contract's price, the delivery schedule, or both, and shall modify this Contract, in writing, accordingly.
- In any instance where Contractor asserts a right to an adjustment in this Contract's price or time required for performance as the result of a change, it must submit a written claim advising Valley Metro within thirty (30) days from the date of receipt of the written order directing the change. The claim shall be accompanied by appropriate documentation, supporting the nature and extent of the claimed impact upon this Contract's price and/or time required for performance. In any instance where it is not reasonably practicable to fully project such impact within the thirty (30) day period, Contractor shall accompany its claim with such supporting documentation that is reasonably available along with a statement of the anticipated time when Contractor expects to provide the additional materials. The Procurement Officer shall maintain the right throughout the process to request such additional materials as the Procurement Officer shall reasonably require in consideration of the claim and shall be under no obligation to conclude consideration prior to review of all relevant materials. Any adjustment to this Contract’s price pursuant to this clause must be agreed upon or determined prior to final payment.
- If Contractor's proposed price adjustment includes the cost of property rendered obsolete or excess by the change, the Procurement Officer shall have the right to prescribe the manner of property disposition.
- Disagreement regarding either party's right to any adjustment in price or time for performance as the result of a change implemented pursuant to this clause shall be subject to adjudication in accordance with the "Disputes" clause of this Contract. Notwithstanding the pendency of any such dispute, Contractor expressly acknowledges that it shall remain fully obligated to perform this Contract as changed.
- Contractor shall promptly notify the Procurement Officer of matters, whether implemented as change orders or otherwise, that Contractor believes may reasonably result in either an increase or decrease in this Contract's price or the time required for performance of any part of this Contract and shall take action as the Procurement Officer directs. Contractor's failure to provide such notification shall constitute a waiver of its right to seek an adjustment to this Contract's price or time required for such performance.
- In no event shall Contractor be entitled to payment for change orders, additional or extra supplies or services or other modifications to this Contract, unless the Procurement Officer authorizes it, in writing.
- Solicitation Transparency Policy —
- Commencing on the date and time a solicitation is published, potential or actual Offerors or respondents (including their representatives) shall only discuss matters associated with the solicitation with the Boards of Directors, the Chief Executive Officer, any executive staff member, or any department director directly associated with the solicitation (including in each case their assigned staff, except for the designated Procuemrent Officer) at a public meeting, posted under Arizona Statutes, until the resulting Contract(s) are awarded to all offers or responses are rejected and the solicitation is cancelled without any announcement by the Procurement Officer of Valley Metro’s intent to reissue the same or similar solicitation.
- As long as the solicitation is not discussed, Offerors may continue to conduct business with Valley Metro and discuss business that is unrelated to the solicitation with Valley Metro staff. Offerors may not discuss the solicitation with any Valley Metro employees or evaluation panel members.
- This policy is intended to create a level playing field for all Offerors, assure that contracts are awarded in public, and protect the integrity of the selection process. OFFERORS THAT VIOLATE THIS POLICY SHALL BE DISQUALIFIED. After official Notice is received by Valley Metro for disqualification, the Offeror may follow the Protest process, unless the Solicitation is cancelled without notice of intent to re-issue.
- “To discuss” means any contact by Offeror, regardless of whether Valley Metro responds to the contact. Offerors that violate this policy will be disqualified until the resulting Contract(s) are awarded, or all offers or responses are rejected and the solicitation is cancelled without any announcement by the Procurement Officer of Valley Metro’s intent to reissue the same or a similar solicitation. Valley Metro interprets the policy as continuing through a cancellation of a solicitation until award of this Contract, as long as Valley Metro cancels with a statement that Valley Metro will rebid the solicitation.
- Pricing Adjustments —
- The parties agree that, notwithstanding any interpretation of contract cost principles to the contrary, Valley Metro will not be liable for interest, however represented, on or as a part of any claim, request, proposal, or adjustment, including equitable adjustments, whether it arises under this Contract or otherwise.
- As part of its proposal for any Contract modification requiring a price adjustment in excess of $250,000, Contractor shall submit to the Procurement Officer, cost or pricing data under the conditions described in this paragraph and certify that, to the best of its knowledge and belief, the cost or pricing data submitted is accurate, complete, and current as of the date submitted. At the Procurement Officer's discretion, Contractor, may be required to submit cost or pricing data for price adjustments less than $250,000.
- Contractor shall ensure that this clause is included in all subcontracts at any tier, if the value of the subcontracted work exceeds $250,000.
- Protests —
- Overview
- A protest is a written objection by an interested party to any of the following:
- A solicitation to contract for the procurement of property or services.
- The cancellation of the solicitation or other request.
- Notice of award of a contract.
- A protest shall not be permitted in connection with the proposed award of (i) small purchases at or below the Simplified Acquisition Threshold or (ii) any task or delivery order under an Indefinite Delivery / Indefinite Quantity (IDIQ) or Multiple Award Task Order Contract (MATOC), except as expressly authorized elsewhere.
- Protests must be submitted to the Procurement Officer.
- The Procurement Officer will review the written objection for compliance with the requirements of a protest. The Procurement Officer shall promptly dismiss any written objection that does not meet the requirements of form or timeliness and will notify the sender of the reasons for the dismissal. The Procurement Officer has discretion to waive any deficiency found within the protest when in the best interests of Valley Metro.
- "Interested Party" as used in this provision means any Valley Metro registered vendor who:
- Is an actual or prospective Offeror in the procurement involved; and
- Has a direct economic interest in the award or of this Contract.
- Form of the Written Objection
- Protests shall be concise and logically presented to facilitate review by the Procurement Officer. Protests shall include the following information:
- Solicitation or Contract number;
- Name, email address, telephone numbers or other contact information of the protester;
- All information establishing the protester as an interested party;
- All information establishing the timeliness of the protest;
- A detailed statement of the legal and factual grounds for the protest;
- Copies of any relevant documents or other evidence supporting the protest;
- Description of the resulting harm or prejudice from Valley Metro’s action;
- Statement as to the form of relief being requested, including whether the protester requests a stay of Contract award or performance; and
- Request for a Protest Decision.
- The initial protest submission should be complete and include all the supporting documentation which the protester wishes the Procurement Officer to consider. The Procurement Officer may issue the decision on the protest based upon the initial protest submission without requesting further information. If necessary, the Procurement Officer may request additional information from the protester where the Procurement Officer determines it would be in Valley Metro’s best interests.
- The protest submission may reference any source of relevant legal authority that supports the objection, including decisions of the Government Accountability Office (“GAO”), U.S. Court of Federal Claims, or a Federal district court, when deemed persuasive.
- Timely Receipt of Protests
- Protests based on alleged improprieties within the solicitation must be received by Valley Metro Procurement Officer before bid opening or the closing date for receipt of proposals.
- In all other cases, protests must be received within five (5) days of when the protestor knew, or should have known, of the facts or circumstances giving rise to the protest, including but not limited to:
- The cancellation of a solicitation or award;
- Notice of exclusion from the competitive range;
- Notice of an unsuccessful bid or proposal;
- Notice of intent to award a contract; and
- Completion of a debriefing to the protestor.
- Any protest that is not received by the Procurement Officer within the applicable time frame set forth in this section shall be dismissed as untimely, unless the Procurement Officer determines it to be in Valley Metro’s interest to further consider the protest.
- Prohibited Basis for Protest
- Small Purchase Awards. Contracts awarded for amounts below the Simplified Acquisition Threshold shall not be subject to any Valley Metro protest procedures and are deemed denied.
- IDIQ Contract Awards. An IDIQ contract awardee shall not be deemed an interested party withstanding to protest an award to another offeror under the same IDIQ contract.
- Contract Administration Issues. Protests involving issues of contract administration shall not be subject to any Valley Metro protest procedures and are deemed denied.
- Disputes Involving Subcontractors. Protests involving disputes by a subcontractor shall not be subject to any Valley Metro protest procedures and are deemed denied. A subcontractor to an offeror shall not be an interested party, as defined within this chapter.
- Valley Metro Review of Protests
- Receipt of Timely Written Objection. Upon receipt of a complete written objection in proper form, and that is timely, the Procurement Officer will acknowledge the protest and provide an estimate for when the Procurement Officer intends to issue the decision on the protest. The Procurement Officer shall issue the decision on the protest no later than sixty (60) days of receipt of the protest, unless the Procurement Officer determines that additional time is necessary.
- Requests for a stay of contract award or performance.
- Valley Metro is not a federal agency and is not required to stay any activity upon the receipt of a protest, including but not limited to the receipt or evaluation of proposals, the award of a contract, or the performance of an awarded contract. The filing of a protest with the Procurement Officer shall not result in any automatic stay of procurement activity.
- Where a protest includes a request that Valley Metro stay contract award or performance pending the Procurement Officer’s resolution of the protest, the Procurement Officer shall consult with the Chief Procurement Officer and provide a recommendation to the Chief Procurement Officer based on the Procurement Officer’s assessment of relevant factors such as the likelihood that the protest will be successful, the balance of the harms to Valley Metro and the protester, and the availability of suitable alternatives. The decision to issue a stay of contract award or performance shall be based on the best interests of Valley Metro and is within the sound discretion of the Chief Procurement Officer.
- The Procurement Officer shall determine whether it is appropriate to obtain a cost estimate from Valley Metro program office or project manager to assess the potential impact of the requested relief. This estimate, if prepared, shall inform the Procurement Officer’s recommendation on whether to grant a stay and will be furnished to the Chief Procurement Officer.
- Conference with Interested Parties. Where the Procurement Officer determines that it would be beneficial to resolution of the protest, the Procurement Officer may conduct a conference with the protester and may include other interested parties, as appropriate.
- Release of Information. The Procurement Officer must not disseminate or allow the loss or compromise of any proprietary or confidential information from bids / proposals, or Valley Metro source selection information while a protest is pending. Consequently, any request for information related to the subject matter of the protest, including parallel requests under Valley Metro Public Record Request Policy, will be suspended until the protest is fully resolved.
- Protest Decision
- Written Decision. The Procurement Officer shall issue a written final decision within sixty (60) days of receiving a protest, unless the Procurement Officer determines that additional time is necessary. Additional time may be necessary where, for example, the protest is complex or the Procurement Officer determines that additional information or proceedings are necessary. If the Procurement Officer determines that additional time will be needed, the Procurement Officer shall inform the protester in writing of the date by which the Procurement Officer expects to issue the decision on the protest.
- The Protest Decision is conclusive and will exhaust all administrative remedies at Valley Metro.
- Legal action, if permitted, contesting Valley Metro’s decisions shall not be construed as a waiver of any immunity Valley Metro may have from suit.
- Appeal of Valley Metro Protest Decisions to the FTA
- Exhaustion of Administrative Remedies. Availability of FTA review of protests of Valley Metro procurement decisions is described in FTA Circular 4220.1G, as may be updated from time to time. Nothing herein or in the FTA Circular shall be construed to define Valley Metro as a federal agency.
- Withholding of Award. Appeal to the FTA will not result in an automatic stay of an award.
- Accounting and Record Keeping for Adjustments —
- Applicability. This clause applies to any adjustment in this Contract's price that Contractor or Valley Metro initiates.
- Forward Price Adjustments. Unless waived in writing, Contractor shall furnish to the Procurement Officer, a proposed price adjustment in advance of performance of any work for which the price adjustment is requested. Contractor shall generate such records as are necessary to substantiate all elements of the proposed adjustment, which records shall be specifically segregated and identified in Contractor's accounting system as being applicable to the pricing adjustment request.
- Post Price Adjustments. This paragraph shall be applicable to price adjustments that either: (1) are expected to exceed $50,000; or (2) arise in connection with a Contract with a base sum in excess of $1,000,000. In addition to the records required pursuant to the preceding paragraph, if pricing of an adjustment under this Contract is not agreed upon between the parties prior to the commencement of work related to the pricing adjustment, Contractor, and any subcontractor engaged in such work, shall maintain accounts and original cost records specifically segregated and identified by job order or other appropriate accounting categories that the Procurement Officer approves for all incurred, segregable costs related to the work for which the pricing adjustment is requested. Contractor shall maintain accounts and records that segregate and account for the costs of all work associated with that part of this Contract for which the pricing adjustment is requested. Contractor shall allocate the costs so accumulated between: (1) work required under the base Contract; (2) work requested to be reimbursed under the pricing adjustment; and (3) work claimed or determined to be related to other actual or proposed adjustments, including but not limited to, change orders, differing site conditions, and the like. The accounts and records so established shall accumulate such costs under logical costs groups, such as material, labor, equipment, subcontracts, field overhead and the like. Contractor shall record these costs on a form that the Procurement Officer approves.
- Access to Records. As a condition to Valley Metro's obligation to consider any claim for a potential price adjustment under any provision of this Contract, Contractor shall grant Valley Metro access to review and ascertain the validity of the accounting records being maintained for segregation of costs, including base cost records, and to audit any such costs as the Procurement Officer deems appropriate.
- Limitation on Price Adjustments. If Contractor or any subcontractor fails to generate, maintain, or make available any records required under this Contract, in addition to any rights to which Valley Metro may be entitled, the Procurement Officer shall determine whether such failure is willful, deliberate or otherwise precipitated by Contractor's bad faith, in which case Contractor shall not be entitled to any price adjustment for the work in question. Where the Procurement Officer determines that the failure was not the result of Contractor's bad faith, the Procurement Officer shall determine the reasonable direct costs of the work for which records are not available, and add a single mark-up for indirect expenses not to exceed ten percent (10%) of the direct costs based on:
- An audit of Contractor's or subcontractor's records made available to Valley Metro; or
- Valley Metro's estimate as the Procurement Officer adopts or modifies.
- Record keeping required. In no event shall Contractor or any subcontractor be allowed any profit on claimed work for which records are not made available in accordance with its obligations under this Contract.
- Flow-down clause. Contractor shall ensure the inclusion of this clause in all subcontracts issued under this Contract, modified as necessary, for proper identification of the contracting parties and the Procurement Officer.
- Public Record —
All Offers submitted in response to this solicitation will become the property of Valley Metro and become a matter of public record available for review pursuant to Arizona State law. If an Offeror believes that a specific section of its Offer response is confidential, Offeror will isolate the pages marked confidential in a specific and clearly labeled section of its Offer response. An Offeror may request specific information contained within its Offer be treated by the Procurement Officer as confidential provided Offeror clearly labels the information “confidential.” To the extent necessary for the evaluation process, information marked as “confidential” will not be treated as confidential. Once the procurement file becomes available for public inspection, the Procurement Officer will not make any information identified by Offerors as “confidential” available to the public unless necessary to support the evaluation process or if specifically requested in accordance with applicable public records law. When a public records request for such information is received, Valley Metro will notify Offeror in writing of any request to view any portion of its Offer marked “confidential.” Offeror will have the time set forth in the notice to obtain a court order enjoining such disclosure. If Offeror does not provide Valley Metro with a court order enjoining release of the information during the designated time, Valley Metro will make the information requested available for inspection.
- Billing and Payment —
- Valley Metro shall pay and Contractor shall accept the amounts set forth in the Price Schedule as full compensation for all costs and expenses of completing this Contract, including, but not limited to, all labor and material required to be furnished under this Contract, all overhead, expenses, including any travel expenses authorized in the SOW, fees and profits including the cost of providing storage yards or facilities; all risks and obligations set forth in this Contract; any applicable fees or taxes; and all expenses due to any unforeseen difficulties encountered in the prosecution of the work.
- At the request of Valley Metro , Contractor shall submit a current IRS Form W-9, Request for Taxpayer Identification Number and Certification, through Valley Metro’s Supplier Portal or as requested. Valley Metro will not process payments for Contractor invoices without a valid W-9 form on file.
- Payments will be made following receipt of Form W-9, acceptance of the services or goods to be provided under this Contract, and after receipt and acceptance of a properly completed invoice. Contractors shall email invoices and any supporting documents to the PM. Acceptable file formats for invoice and supporting documentation include Adobe PDF, Microsoft Word, and Microsoft Excel. All documents must include the invoice number and the file name.
- Invoices must contain all of the following information to be eligible for payment:
- The word “Invoice”;
- Contractor's name;
- Unique invoice number;
- Invoice date;
- Payment terms;
- Remittance address;
- Valley Metro purchase order number;
- For services provided, a description of each service being invoiced;
- For all goods provided, a description of each item being invoiced, including item quantity, cost per item and total item cost;
- Performance period specifying date(s) during which goods or services were rendered;
- Total amount invoiced, net of credits and discounts; and
- Contact information, including email address and phone number.
- Revised invoices must have a new date, be clearly marked as "Revised,” and refer to the invoice it is replacing.
- Credit invoices must clearly be marked as “Credit” and reference the original invoice number. Final invoices shall be marked as “Final.”
- At any time, Valley Metro may specify additional invoice requirements, including prescribed formats or Valley Metro templates that must accompany Contractor’s documentation.
- Valley Metro shall remit payment, generally within thirty (30) days of its receipt and acceptance of an invoice satisfying the requirements of this provision at the prices agreed to in this Contract for supplies delivered and accepted or services rendered and accepted.
- Contractor shall submit all requests to change payment methods or vendor bank account information through Valley Metro’s Supplier Portal. Valley Metro will not process any banking changes submitted via email.
- Late Offers —
Late Offers must be rejected, except for good cause. If a late Offer is submitted, Valley Metro will document the date and time of the submittal of the late Offer, keep the Offer and notify Offeror that its Offer was disqualified for being a late Offer.
- Right to Disqualify —
Valley Metro reserves the right to disqualify any Offeror who fails to provide information or data requested or who provides materially inaccurate or misleading information or data. Valley Metro further reserves the right to disqualify any Offeror on the basis of any real or apparent conflict of interest that is disclosed by the Offer submitted or any other data or information available to Valley Metro. This disqualification is at the sole discretion of Valley Metro. By submission of a solicitation response, Offeror waives any right to object now or at any future time, before any agency or body including, but not limited to, the Boards of Directors or any court as to the exercise by Valley Metro of such right to disqualify or as to any disqualification by reason of real or apparent conflict of interest determined by Valley Metro. Valley Metro reserves the right to replace the disqualified Offeror.
- Price Reduction for Defective Cost or Pricing Data - Modifications —
If the Procurement Officer determines that any price, including profit or fee, previously negotiated in connection with any modification to this Contract involving changes in cost plus applicable profit in excess of $250,000 was based upon Contractor's or subcontractor's cost or pricing data that was not complete, accurate or current, such that the amount Valley Metro paid to Contractor for such price adjustment was greater than the amount to which Contractor would have been entitled based upon accurate and complete data, Valley Metro shall be entitled to an adjustment in an amount equal to such overpayment. Valley Metro's rights hereunder shall be in addition to any other rights it may have under this Contract, at law or in equity.
- Subcontractor Payments —
- Contractor shall, under this Contract, establish procedures to ensure timely payment of amounts due pursuant to the terms of its subcontracts. Contractor shall pay each subcontractor for satisfactory performance of its contract, or any billable portion thereof, no later than ten (10) days from the date of Contractor's receipt of payment from Valley Metro for work performed by that subcontractor. Contractor shall also release, any retention withheld from the subcontractor within ten (10) days of satisfactory completion of all work required by that subcontractor.
- Contractor shall certify on each payment request to Valley Metro that payment has been or will be made to all subcontractors in accordance with the preceding paragraph. Contractor shall notify the Procurement Officer with each payment request, of any situation where scheduled subcontractor payments have not been made.
- In the event of a claim by any subcontractor that Contractor has failed to comply with the terms of this clause, Contractor agrees to fully cooperate in any Valley Metro investigation, and, if deemed appropriate by Valley Metro, to implement appropriate remedial measures to ensure future compliance.
- Contractor agrees that the Procurement Officer may provide information that they deem appropriate in response to inquiries from subcontractors seeking to determine the status of Valley Metro's payments to Contractor.
- Nothing contained in this clause or elsewhere in this Contract shall create a Contractual relationship between Valley Metro and any subcontractor, shall make the subcontractor an intended beneficiary of this Contract or shall alter or affect traditional concepts of privity of contract.
- Clarifications —
Valley Metro may request written clarifications for such purposes as information gathering or eliminating minor informalities in offers. Clarifications shall not otherwise afford Offerors the opportunity to alter or change their offers.
- Statement of Bonding Ability —
Offerors must submit a letter from a bonding or insurance company stating that the Offeror can qualify for and procure the performance and/or payment surety required in this solicitation. Submittals received without the required statement of ability to secure a performance or payment surety may be considered as non-responsive. Offerors anticipating the submittal of a cash surety in lieu of a bond should submit a statement notifying the Agency.
- Garnishment of Payments —
Payments under this Contract shall be subject to any garnishment, attachment orders, and/ or levies issued pursuant to the laws of the United States and the State of Arizona.
- Solicitation Bond —
Offerors are required to furnish a “solicitation guarantee” in the amount of 0 of the total solicitation price. Such solicitation guarantee must accompany the submittal and be furnished in the form of Solicitation Bond, Postal Money Order, Certified Check, or Cashier’s Check. Solicitation guarantees will be returned to unsuccessful Offerors as soon as practicable after the opening of solicitations and to the successful Offeror upon execution of such further contractual documents and conditions (including insurance) as required by the solicitation are accepted. If the successful Offeror, upon acceptance of solicitation by the Agency within the period specified thereon for acceptance, fails to execute such further contractual documents and bonds as required within the time specified (ten days if no period is specified) the contract may be terminated for default. In such event, Offeror will be liable for any cost of procuring the work that exceeds the amount of solicitation, and the solicitation guarantee will be available toward offsetting such difference.
- Stop Work Orders —
- The Procurement Officer may, at any time, by written order to Contractor, require Contractor to stop all, or any part of the work required under this Contract for a period of up to ninety (90) days after the order is delivered to Contractor, and for any further period to which the parties may agree. The order shall be specifically identified as a "Stop Work Order" ("SWO") issued under this clause. Upon receipt of the SWO, Contractor shall immediately comply with its terms and take all reasonable steps to minimize the incurrence of costs allocable to the work covered by the SWO during the period of work stoppage. Within a period of ninety (90) days after a SWO is delivered to Contractor, or within any extension of that period to which the parties agree, the Procurement Officer shall either:
- Cancel the SWO; or
- Terminate the work covered by the SWO as provided in this Contract, as appropriate.
- If a SWO is cancelled or expires, Contractor shall resume work. The Procurement Officer shall make an equitable adjustment to the delivery schedule or Contract price, or both, and shall modify this Contract in writing if:
- The SWO results in an increase in the time required for, or in Contractor's cost properly allocable to, the performance of any part of this Contract; and
- Contractor submits a written claim for such adjustment within thirty
(30) days after the end of the period of work stoppage. At the Procurement Officer's discretion, Valley Metro may act upon any claim submitted at any time before final payment under this Contract.
- If a SWO is not cancelled and the work covered by this Contract is terminated for the convenience of Valley Metro, the Procurement Officer shall allow reasonable costs, if any, resulting from the SWO in arriving at the termination settlement pursuant this Contract.
- Termination for Default —
- Contractor shall be in default if it commits a breach of any of its obligations under this Contract deemed material by the Procurement Officer. In addition to those instances specifically referred to in this Contract, Contractor shall be in default in the following circumstances:
- Contractor fails to begin, or abandons, this Contract's work in accordance with the contractual requirements;
- Contractor fails to deliver the supplies or perform the services within the time specified in this Contract or any extension that the Procurement Officer approves;
- Contractor fails to make progress in a manner that the Procurement Officer deems unreasonable that endangers performance of this Contract; or
- In the Procurement Officer’s view, Contractor is willfully violating this Contract or is not executing it reasonably and in good faith.
- In the event of Contractor's material breach pursuant to the preceding paragraph, the Procurement Officer is authorized to direct a written notice (a "Notice to Cure") to Contractor, specifying the nature of the breach and stating that Contractor has ten (10) days to cure the breach or such additional time as the Procurement Officer authorizes. If Contractor fails to cure the breach in the time specified in the Notice to Cure, the Procurement Officer may terminate this Contract, in whole or designated part, for default after providing written notice to Contractor.
- Upon receipt of a notice of termination for default, "Notice of Termination for Default," Contractor shall immediately cease performance of the work so terminated. Valley Metro shall have the right to take any action necessary to complete the work, including performing the work itself, or contracting with another party to do so. In the event that Valley Metro completes the work directly or has a third party complete it, Contractor shall be liable for the additional costs and expenses necessary to complete it including, without limitation, labor, material costs, plant costs, tooling expenses, and equipment and property costs. Valley Metro may deduct the costs and expenses so charged and pay them out of any monies otherwise payable to Contractor. Nothing contained herein shall be deemed to relieve Contractor of its continuing obligation to perform any portion of this Contract that was not terminated.
- The Procurement Officer may waive a default by Contractor, but such waiver shall not be deemed a waiver of any subsequent default.
- Upon any termination for default, the Procurement Officer may require Contractor to transfer title and deliver to Valley Metro, any completed or partially completed supplies, components (including data and intellectual property) and Contract rights that Contractor has specifically produced or acquired for the terminated portion of this Contract. At the Procurement Officer's direction, Contractor shall also protect and preserve property in its possession in which Valley Metro may have an interest.
- Upon any termination for default, Valley Metro shall pay for supplies delivered and accepted and/or services rendered and accepted in accordance with the terms of this Contract. Valley Metro may also compensate Contractor for actions that it reasonably takes at the Procurement Officer's direction for the protection and preservation of property. Valley Metro may withhold from these payments any sum that the Procurement Officer determines to be necessary to protect Valley Metro against loss because of outstanding or claimed liens or pending or anticipated claims under this Contract.
- If, at any time following the Procurement Officer’s issuance of a termination for default hereunder, it is determined that Contractor was not in default or that the default was excusable, the termination shall be converted to a termination for convenience and the rights and obligations of the parties shall be determined in accordance with the "Termination for Convenience" clause of this Contract.
- Any disagreement regarding any issue arising under this clause shall be subject to adjudication in accordance with the "Disputes" clause of this Contract. In no event shall Valley Metro's issuance of a "Notice to Cure" be the basis of a dispute pursuant to the "Disputes" clause or otherwise be subject to further review under this Contract or otherwise. The pendency of any dispute shall not constitute a basis for the delay or suspension of, or otherwise affect Valley Metro's right to proceed in accordance with this clause, including without limitation, its right to complete the work or its right to insist that Contractor complete any portion of this Contract that was not terminated.
- Valley Metro's rights and remedies in this clause are in addition to any other rights and remedies provided under this Contract, at law or in equity.
- Payment Bond —
The Agency will not issue a written purchase order or give notice to proceed in any form until the surety is received. Required by the Contractor within 0 days after notice of award. The payment surety must be in the form of a bond, cashier's check, certified check or money order. Personal or company checks are not acceptable unless certified. If the surety is in the form of a bond, the company issuing the surety must be authorized by the Insurance Department of Arizona to transact business in the State of Arizona or be named on the approved listing of non-admitted companies. A Certificate of Deposit (CD) issued by a local Phoenix bank may also be used as a form of surety provided that the CD is issued jointly in the name of the Agency and the Contractor and that the Contractor endorses the CD over to the Agency at the beginning of the contract period. Interest earnings from the CD can be retained by the Contractor.
- Contract Award —
Valley Metro reserves the right to award this Contract by individual line items, by group, all or none, or any other combination most advantageous to Valley Metro. Valley Metro reserves the right to multiple award Contracts.
- Termination for Convenience —
- The Procurement Officer may terminate this Contract in whole, or in part, if it is determined that a termination is in Valley Metro's interest. The Procurement Officer shall terminate this Contract by delivering a Notice of Termination to Contractor specifying the extent of termination and its effective date.
- Upon receipt of a Notice of Termination, except as the Procurement Officer otherwise directs, Contractor shall immediately:
- Stop work as specified in the Notice of Termination.
- Complete performance of the work not terminated.
- Place no further subcontracts or orders for materials, supplies, services, or facilities, except as necessary to complete the remaining portion of this Contract.
- Terminate all subcontracts to the extent that they relate to the work terminated.
- Assign to Valley Metro, as the Procurement Officer directs, all Contractor's right(s), title, and interest(s) under the subcontracts terminated. Valley Metro shall have the right to settle or pay any termination costs arising out of the subcontracts and have no further liability to Contractor for the work that was the subject of such subcontracts.
- With the Procurement Officer's approval, settle all outstanding liabilities and settlement costs arising from the termination of subcontracts.
- As the Procurement Officer directs, transfer title and deliver to Valley Metro:
- Parts, work in process, completed work, supplies, and other material produced or acquired for the work terminated; and
- The completed or partially completed plans, drawings, information, and other property that would have been required to be furnished to Valley Metro, if this Contract had been completed.
- Take any action that may be necessary, or as the Procurement Officer may direct, for the protection and preservation of the property related to this Contract that is in Contractor's possession and in which Valley Metro has or may acquire an interest.
- Use its best efforts to sell, as the Procurement Officer authorizes, any property of the types referred to in paragraph (2)(G). Contractor is not required to extend credit to any purchaser and may acquire the property under the conditions that the Procurement Officer prescribes. The proceeds of any transfer or disposition will be applied to reduce payments to be made by Valley Metro under this Contract, credited to the price or cost of the work, or paid in any other manner that the Procurement Officer directs.
- Contractor shall submit complete termination inventory schedules not later than one hundred twenty (120) days from the effective date of termination, unless the Procurement Officer extends the time in writing.
- As soon as reasonably practicable and not later than twenty (20) business days following Valley Metro's issuance of a Notice of Termination pursuant to paragraph (2), Contractor shall submit a termination settlement proposal (TSP) to the Procurement Officer, detailing the costs to which it asserts entitlement pursuant to this clause. If Contractor fails to submit the TSP within the time prescribed, the Procurement Officer may determine, on the basis of information available, the amount, if any, due to Contractor as a result of the termination and shall pay the amount so determined.
- Following submission of Contractor's TSP pursuant to paragraph (4), the parties shall agree upon the whole, or any part, of the amount to be paid or remaining to be paid as a result of the termination. The amount may include a reasonable allowance for profit on work completed. In no event shall the total amount to be paid to Contractor pursuant to this clause exceed the total Contract price as reduced by (1) payments previously made and (2) this Contract's price of the remaining work, not terminated.
- If the parties disagree on the whole amount to be paid because of the termination, the Procurement Officer shall pay Contractor the amounts that they determine as follows, but without duplication of any amounts agreed upon under paragraph (5):
- This Contract's price for completed supplies or services that Valley Metro accepted [or sold or acquired under paragraph (2)(I)] not previously paid for, adjusted for any savings in freight and other charges.
- The total of:
- The costs incurred prior to termination, in the performance of the work terminated, including initial costs and preparatory expenses allocable thereto, but excluding any costs attributable to items compensated or to be paid for as described above.
- Termination costs under terminated subcontracts that are properly chargeable to the terminated portion of this Contract, if not excluded as described above.
- A sum, representing profit on the items described in subparagraph (6)(A) that the Procurement Officer determines to be fair and reasonable pursuant to Section 49.202 of the Federal Acquisition Regulation (FAR), in effect on the date of this Contract. If it appears that Contractor would have sustained a loss on the entire Contract had it been completed, the Procurement Officer shall allow no profit under this subparagraph and shall reduce the settlement to reflect the projected rate of loss.
- The reasonable indirect costs of settlement of the work terminated, including:
- Accounting, legal, clerical, and other expenses reasonably necessary for the preparation of TSPs and supporting data.
- The termination and settlement of subcontracts (excluding the amount of such settlements).
- Storage, transportation, and other costs incurred, reasonably necessary for the preservation, protection, or disposition of the termination inventory.
- Except for normal spoilage, and except to the extent that Valley Metro expressly assumed the risk of loss, the Procurement Officer shall exclude from the amounts payable to Contractor, the fair value of property that is determined to be unavailable or damaged and undeliverable to Valley Metro or to a third party.
- The cost principles and procedures of FAR Part 31 in effect on the date of this Contract, shall govern all costs claimed, agreed to, or determined under this clause, except that Valley Metro shall not be obligated to pay interest, however represented, on any claimed costs.
- Contractor shall have the right to appeal, under the "Disputes" clause, from the Procurement Officer's determination under paragraphs (4) or (6). Contractor's failure to submit the TSP within the time provided in paragraph (4), or to timely request an extension thereof, shall constitute a waiver of its right to appeal the Procurement Officer's determination pursuant to the "Disputes" clause or any otherwise applicable Contractual, legal, or equitable remedy.
- In determining any sum due to Contractor under this clause, there shall be deducted:
- All unliquidated advances or other payments to Contractor under the terminated portion of this Contract.
- The value, as the Procurement Officer reasonably determines, of any claim that Valley Metro has against Contractor under this Contract, including any third-party claim, if the Procurement Officer is not satisfied that sufficient insurance coverage is in place; and
- The agreed price for, or the proceeds of sale of, materials, supplies, or other items that Contractor procured or sold under this clause, not recovered by or credited to Valley Metro.
- If Contractor asserts that any partial termination has rendered enforcement of the remainder of this Contract at the remaining Contract price inequitable, Contractor may file a proposal with the Procurement Officer for an adjustment to the price(s) for the continued portion of this Contract. Such proposal shall be submitted within ninety (90) days from the effective date of termination, unless the Procurement Officer extends it in writing, and shall be accompanied by appropriate supporting documentation.
- Contractor's responsibilities and obligations under this clause shall remain in full force and effect notwithstanding the pendency of any dispute or other delay relating to determination of the appropriate price adjustment or any other issue arising from the termination for convenience.
- Pursuant to A.R.S. 35-214, Contractor and all subcontractors whose work is encompassed in the termination settlement shall maintain all records and documents relating to the terminated portion of this Contract for five (5) years after final settlement. This includes all books and other evidence bearing on Contractor's costs and expenses under this Contract. Contractor shall make these records and documents available to Valley Metro, its governing jurisdictions and any other Federal, state, or local entities providing funding for this Contract, and to the U.S. Comptroller General or the agents or representatives of any of them, at Contractor's office, at all reasonable times, without any direct charge.
- Assignment —
- Except as otherwise provided in this clause, Contractor shall not transfer any of its rights and obligations under this Contract to third parties without the Procurement Officer's prior, written consent. The Procurement Officer may recognize a third party as successor in interest to this Contract in the event of a transfer of all or substantially all of Contractor's assets, a change in a division of Contractor involved in the performance of this Contract, or if a parent company provides performance guarantee(s) under this Contract, (i.e., sales of assets, transfer of assets pursuant to merger or consolation, or incorporation of a proprietorship or partnership). Such recognition shall be in the Procurement Officer's discretion after review of the facts and circumstances surrounding each request. The Procurement Officer, may conduct an evaluation of the successor party's capability to perform this Contract in the same manner and to the same extent that was conducted in determination of responsibility as part of the original solicitation for this Contract. Should the Procurement Officer, for any reason, not recognize a successor in interest, this Contract may be terminated.
- Any attempt to transfer by assignment of this Contract that the Procurement Officer has not first authorized shall constitute a material breach of this Contract and the Procurement Officer may terminate this Contract in accordance with the "Termination for Default" clause set forth in this Contract. In addition, any unauthorized transfer by assignment shall be considered void.
- Nothing contained herein shall be deemed to preclude Contractor's assignment of claims for monies due or to be become due to Contractor under this Contract to a bank, trust company or other financing institution, including any Federal lending agency, upon written notice of such assignment to the Procurement Officer.
- Determining Responsiveness and Responsibility —
- Offers will be reviewed for documentation of any required minimum qualifications, and completeness and compliance with the solicitation requirements. Valley Metro reserves sole discretion to determine responsiveness and responsibility.
- Responsiveness: Nonresponsive Offers will not be considered in the evaluation process. The solicitation states criteria that determine responsiveness, and the solicitation includes terms and conditions that if included or excluded from Offers will render an Offer nonresponsive.
- Responsibility: To obtain true economy, Valley Metro must conduct solicitations to minimize the possibility of a subsequent default by Offeror, late deliveries, or other unsatisfactory performance that may result in additional administrative costs. It is important that Offeror be a responsible Offeror. Responsibility includes Offeror's integrity, skill, capacity, experience, and facilities for conducting the work to be performed.
- Disputes —
- Any dispute or claim arising out of or relating to this Contract shall be decided by Valley Metro's Chief Executive Officer, who shall reduce the decision to a writing and furnish a copy to Contractor. A final decision by the Chief Executive Officer shall be conclusive and binding on Valley Metro.
- The filing of a claim, lawsuit, arbitration or other legal proceeding, does not relieve the parties of their continuing obligations to proceed diligently with the performance of this Contract and in accordance with the Chief Executive Officer's Final Decision.
- Only after exhausting all administrative remedies, each party agrees that any suit, action or other legal proceeding arising out of or relating to this Contract shall be brought in a court of jurisdiction located in Maricopa, County, Arizona.
- The parties may mutually agree and consent to Alternate Dispute Resolution (ADR).
- Equal Low Offer —
Contract award will be made by putting the names of the tied Offerors in a cup for a blind drawing limited to those Offerors with tied offers. If time permits, the Offerors involved will be given an opportunity to attend the drawing. The drawing will be witnessed by at least three persons, and this Contract file will contain the names and addresses of the witnesses.
- Equal Employment —
- In connection with this procurement, Contractor will take affirmative action to ensure that all applicants are considered for employment and that employees are treated during an application process and through employment without regard to their race, color, religion, sex, sexual orientation or domestic partnership, national origin, age, marital status, being disabled or disadvantaged, or any war-era veteran status. Such action shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship.
- Contractor will furnish all necessary information and reports and will permit access to its books, records, and accounts by Valley Metro for the purposes of investigation to ascertain compliance with the nondiscrimination/ disadvantaged business provisions of any resultant Contract.
- Evaluation of Competitive Sealed Offers —
Agency will use its discretion in applying the following processes to this solicitation. Any ties in scoring will be resolved with a best and final price request and the lowest price will prevail.
- Offers Not Within the Competitive Range —
Agency may notify Offerors of Offers that Agency determined are not in the Competitive Range.
- Equal Employment Opportunity Requirements for Construction Contracts —
When undertaking "construction" as recognized by the U.S. Department of Labor (U.S. DOL), Contractor agrees to comply with U.S. DOL regulations "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor," 41 C.F.R. Part 60, and Executive Order 11246 "Equal Employment Opportunity," as amended by Executive Order 11375, "Amending Executive Order 11246, Relating to Equal Employment Opportunity," 42 U.S.C. § 2000 (e) note.
- Discussions with Offerors in the Competitive Range —
- Agency will notify each Offeror whose Offer is in the Competitive Range or made the ‘short list’ and provide in writing any questions or requests for clarification to the Offeror. Each Offeror so notified may be interviewed by Agency and asked to discuss answers to written or oral questions or provide clarifications to any facet of its Offer. The Offerors in the competitive range may be required to provide a demonstration of their product.
- Demonstrations - Offerors in the competitive range may be invited to construct a hands-on sample or presentation of their solution at Agency. In addition, each finalist may prepare and deliver a presentation of their proposed solution based on the script developed by the evaluation panel. Agency may also require a hands-on lab demonstration designed specifically for the evaluation panel. The results of the surveys will be tabulated and delivered to the evaluation team for the final review and solution selection session(s).
- If an Offer in the Competitive Range contains conditions, exceptions, reservations or understandings to or about any contract or solicitation scope of work requirement, Agency may discuss or negotiate the conditions, exceptions, reservations or understandings during these meetings. But Agency in its sole discretion may reject any and all conditions, exceptions, reservations and understandings, and Agency may instruct any Offeror to remove the conditions, exceptions, reservations or understandings. If the Offeror fails to do so, Agency may determine the Offer is nonresponsive, and Agency may revoke its determination that the Offer is in the Competitive Range.
- To the fullest extent permitted by law, Agency will not provide any information, financial or otherwise, to any Offeror about other Offers received in response to this solicitation. During discussions with Offerors in the Competitive Range, Agency will not give Offerors specific prices or specific financial requirements that Offerors must meet to qualify for further consideration. Agency may state that proposed prices are too high with respect to the marketplace or otherwise unacceptable. Offerors will not be told of their relative rankings before contract award.
- Organization – Employment Disclaimer —
Nothing in this Contract is intended to constitute, create, give rise to or otherwise recognize a joint venture agreement or relationship, partnership or formal business organization of any kind, and the rights and obligations of the parties will be only those expressly set forth in this Contract. The parties agree that no persons supplied by Contractor in the performance of Contractor’s obligations under this Contract are considered to be Valley Metro’s employees and that no rights of Valley Metro civil service, retirement, or personnel rules accrue to such persons. Contractor will have total responsibility for all salaries, wage bonuses, retirement, withholdings, workmen’s compensation, occupational disease compensation, unemployment compensation, other employee benefits, and all taxes and premiums appurtenant thereto concerning such persons and will save and hold Valley Metro harmless with respect thereto.
- Best and Final Offers (BAFO) —
- A BAFO is an option available for negotiations. Each Offeror in the Competitive Range, which is determined in Agency’s sole discretion, may be afforded the opportunity to amend its Offer and make one BAFO.
- If an Offeror’s BAFO modifies its initial Offer, the modifications must be identified in the BAFO. Agency will evaluate BAFOs based on the same requirements and criteria applicable to initial Offers. Agency will adjust appropriately the initial scores for criteria that have been affected by offer modifications made by a BAFO. Based on the criteria defined in the solicitation as weighted, Agency will then perform final scoring and prepare final rankings.
- The Evaluation Panel will recommend the Offer that is the best value and most advantageous to Agency based on the evaluation criteria.
- Agency reserves the right to make an award to an Offeror whose Offer is the highest rated, best value, and most advantageous to Agency based on the evaluation criteria, without conducting written or oral discussions with any Offeror, without negotiations, and without soliciting BAFOs.
- Agency reserves the right to declare a second BAFO if it determines, in its sole discretion, that it is in Agency's best interest.
- Title and Risk of Loss —
This clause is only applicable where Valley Metro acquires title to property through contract performance.
- Unless this Contract specifically provides for earlier passage of title to deliverables (including documents, reports, and data) or other items resulting from this Contract, title shall pass to Valley Metro upon acceptance, regardless of when or where Valley Metro takes physical possession. Risk of loss, theft, destruction of, or damage to, such deliverables or other items remains with Contractor, until the transfer of title or at the time when Valley Metro takes physical possession, whichever is later.
- In the event of loss or damage to any deliverable or other item of work, prior to the time when Valley Metro takes physical possession, Contractor agrees to repair or replace it as soon as reasonably possible to restore the item to the same condition that pre-existed the loss or damage, in accordance with all requirements of this Contract, without cost to Valley Metro. Nothing contained herein shall be deemed to require Contractor's repair or replacement of any loss or damage caused solely by Valley Metro's acts or omissions.
- The following clause applies, if and when Contractor performs work on its own property or Valley Metro otherwise furnishes property to Contractor to perform the work or any part thereof.
- Valley Metro retains title to all Valley Metro-furnished property. Valley Metro furnished property shall not become a fixture or lose its identity as personal property by being attached to any real property. Contractor shall use Valley Metro's property, furnished under this Contract, only for performing this Contract, unless the Procurement Officer approves otherwise. Modifications or alterations of Valley Metro property are prohibited, unless the modifications or alterations are (i) reasonable and necessary due to the technical specifications for this Contract; (ii) required for normal maintenance; or (iii) the Procurement Officer authorizes it, in writing. Risk of loss is on Contractor for Valley Metro-furnished property, i.e., Contractor is liable for loss, theft, damage or destruction to Valley Metro’s property while it is in Contractor's possession or control. Contractor shall take all reasonable actions necessary to protect Valley Metro's property from loss, theft, damage or destruction. Contractor shall do nothing to prejudice Valley Metro's rights to recover against third parties for any loss, theft, damage or destruction to Valley Metro's property.
- Inapplicability of Clauses Requiring Unauthorized Obligations —
- Except where Agency specifically agrees in writing, when any supply or service acquired under this Contract is subject to any End User License Agreement (EULA), Terms of Service (TOS), Master Agreement, Terms and Conditions or similar legal instrument or agreement, that includes any clause requiring Agency to indemnify the Contractor or any person or entity for damages, costs, fees, or any other loss or liability or that would create an unauthorized obligation, the following shall govern:
- Any such clause is unenforceable against Agency.
- Neither Agency nor any authorized end user shall be deemed to have agreed to such clause by virtue of it appearing in the EULA, TOS, or similar legal instrument or agreement. If the EULA, TOS, or similar legal instrument or agreement is invoked through an "I agree" click box or other comparable mechanism (e.g., "click-wrap" or "browse-wrap" agreements), execution does not bind Agency or any Agency authorized end user to such clause.
- Any such clause is deemed to be stricken from the EULA, TOS, or similar legal instrument or agreement.
- When any supply or service acquired under this Contract is subject to any End Use License Agreement (EULA), Terms of Service (TOS), or similar legal instrument or agreement, any clause requiring Agency to pay pre-judgment interest, taxes to which it is exempt, or automatic fines or penalties is void and without effect.
- Patent Indemnity —
- Contractor shall indemnify Valley Metro and its Board members, officers, directors, agents and employees against liability, including costs, for infringement of any United States patent (except a patent issued upon an application that is now or may hereafter be withheld from issue pursuant to a Secrecy Order under 35 U.S.C. § 181) arising out of the manufacture or delivery of supplies, the performance of services, or the construction, alteration, modification, or repair of real property under this Contract. If Contractor is not the original equipment manufacturer (OEM) for a manufactured product purchased under this Contract, it will ensure that the patent holder provides indemnity to Valley Metro under this clause. This indemnity shall not apply unless Contractor is informed as soon as practicable by Valley Metro of the suit or action alleging such infringement and is given such opportunity as is afforded by applicable laws, rules, or regulations to participate in the defense thereof. Such indemnity shall not apply to:
- An infringement resulting from compliance with the Procurement Officer's specific written instructions directing a change in the supplies to be delivered or in the materials or equipment to be used, or directing a manner or performance of this Contract not normally used by Contractor;
- An infringement resulting from addition to, or change in, such supplies or components furnished, or construction work performed that was made subsequent to Contractor’s delivery or performance. or
- A claimed infringement that is unreasonably settled without Contractor's consent, unless required by final decree of a court of competent jurisdiction.
- Set-Off —
Valley Metro has common law and equitable rights to set-off. These rights shall include, but are not limited to, Valley Metro's right to set-off any monies due to Contractor under this Contract, by any amounts due and owing to Valley Metro regarding any Contract with Valley Metro, plus any amounts due and owing to Valley Metro for any other reason including, without limitation, tax delinquencies, fee delinquencies or monetary penalties relative thereto. Valley Metro shall exercise its set-off rights in accordance with applicable laws and practices including, in cases of set-off pursuant to an audit, the finalization of such audit by Valley Metro, its representatives, or the Federal Government.
- Rights in Technical Data —
Valley Metro does not waive any rights to technical data originating from or developed in the course of performance of this Contract.
- “Technical Data" as the term is used in this Contract includes, but is not limited to all technical writings, computer software, sound recordings, pictorial reproductions, drawings or other graphic representations and works of a technical nature, whether or not copyrighted, that are required pursuant this Contract. The term does not include financial reports, cost analyses, and other information incidental to Contract administration, unless specifically required pursuant to services required by the SOW. “Computer software” as used in this clause means commercial off-the-shelf (COTS) software. specially developed computer software, computer programs, computer data bases, data and documentation thereof.
- Valley Metro and its authorized representatives and agents shall have the right to use, duplicate or disclose technical data in whole or in part in any manner and for any purpose whatsoever, and to permit others to do so, including but not limited to:
- Any manuals, documents, or instructional materials prepared for installation, operation, maintenance or for training purposes;
- Technical data related to end items, components or processes including those identifying sources, sizes, configurations, mating and attachment characteristics and performance requirements ("form, fit or function" data such as specification control drawings, catalog sheets, and outline drawings). Except for the computer software, it means data identifying sources, functional characteristics, and performance requirements, but specifically excludes the source code, algorithms, processes, formulae, and flow charts of the software;
- All other technical data that Contractor or any subcontractor has furnished without reservation;
- Any other specifically described information that the parties have agreed will be furnished without reservation;
- All computer software, whether deemed technical data pursuant to this clause or not, including source code, algorithms, processes, formula and flow charts that Contractor develops or materially modifies for Valley Metro or which Valley Metro is required by Federal law to provide a royalty free, irrevocable and non-exclusive license to the Federal Government.
- Valley Metro shall have the right to use, duplicate, or disclose technical data other than as defined in paragraph (1), in whole or in part. Such technical data shall not, without the written permission of the party furnishing such technical data, be:
- Released or disclosed, in whole or in part, outside of Valley Metro,
- Used, in whole or in part, by Valley Metro for manufacturing, or
- Used by a party other than Valley Metro except for: (1) emergency repair or overhaul, (2) where the item or process concerned is not otherwise reasonably available to Valley Metro to enable timely performance of this Contract, or (3) administration of this Contract or the inspection of any products produced under it, where the third party has a written contract with Valley Metro to perform these efforts. In all cases described in this clause, the release or disclosure outside of Valley Metro shall be subject to a nondisclosure agreement.
- Technical data provided in accordance with this clause shall be identified with a legend that suitably recites any limitation. This clause shall not impair Valley Metro's right to use similar or identical data acquired from other sources.
- Where any item is purchased as a separate line item in this Contract, that purchase includes all integral parts of that item, including any computer software, source code(s), algorithms, processes, formulae, and flow charts. Valley Metro has full rights to use, duplicate or disclose any or all parts of the item, including computer software, in whole or in part, in any manner and for any purpose whatsoever, and to permit others to do so. Should disclosure of the computer software be required only under this paragraph, then the Procurement Officer may waive the provisions of this paragraph if the Procurement Officer certifies in writing that the item is commercially available from multiple sources and will be fully compatible with existing Valley Metro property.
- Material covered by copyright
- Contractor grants to Valley Metro, and to its Board members, agents and employees acting within the scope of their official duties, a royalty- free, nonexclusive and irrevocable license for Valley Metro's purposes to publish, translate, reproduce, deliver, perform, dispose of, all technical data and computer software covered by paragraph (2)(E) whether now or hereafter covered by copyright.
- No such copyrighted matter shall be included in (1) technical data or (2) computer software covered by paragraph (2)(E) without the written permission of the copyright owner.
- Contractor shall report to Valley Metro promptly and in reasonable written detail each notice or claim of copyright infringement it receives regarding any technical data or computer software covered by paragraph (2)(E) provided to Valley Metro.
- Relation to patents: Nothing contained in this clause shall imply a license to Valley Metro under any patent or be construed as affecting the scope of any license or other right otherwise granted to Valley Metro under any patent.
- Any dispute under this clause shall be subject to the "Disputes" clause of this Contract.
- The Procurement Officer may retain from payment up to ten percent (10%) of this Contract's price until final delivery and acceptance of the technical data defined in this Clause and as required to be furnished by the Price Schedule or this Contract's specifications.
- Notice and Assistance Regarding Patent and Copyright Infringement —
- Contractor shall report to the Procurement Officer, promptly and in reasonable written detail, each notice or claim of patent or copyright infringement based on this Contract once Contractor is notified thereof.
- In the event of any claim or suit against Valley Metro based on any alleged patent or copyright infringement arising out of this Contract or out of the use of any supplies furnished or services performed hereunder, Contractor shall furnish to the Procurement Officer, all evidence and information in its possession pertaining to such suit or claim. Such evidence and information shall be furnished at Contractor's expense since Contractor has agreed to indemnify Valley Metro for such infringement claims.
- This clause shall be included in all subcontracts that are expected to exceed the simplified acquisition threshold.
- Audit and Inspection of Records —
Pursuant to A.R.S 41-2548 and A.R.S. 35-214, Contractor must preserve all books, accounts, reports, files and other records related to this Contract for five (5) years after completion of this Contract. Valley Metro or its authorized agent reserves the right to inspect any records related to the performance of work specified herein. In addition, Valley Metro may inspect all payroll, billing or other relevant records kept by Contractor in relation to this Contract. Contractor will permit such inspections and audits during normal business hours and upon reasonable notice by Valley Metro. The audit of records may occur at Valley Metro’s place of business, as determined by Valley Metro. Confidentiality will be maintained, and Valley Metro will not violate any proprietary or other confidentiality agreements Contractor has in place.
- Legal Worker Requirements —
- Valley Metro is prohibited by A.R.S. § 41-4401 from awarding a contract to any Contractor who fails, or whose subcontractors fail, to comply with A.R.S. § 23-214(A). Therefore, Contractor agrees that:
- Contractor and each subcontractor it uses warrants compliance with all federal immigration laws and regulations that relate to their employees and compliance with A.R.S. § 23-214, subsection A.
- A breach of the warranties stated in paragraph 1 above will be deemed a material breach of this Contract that is subject to penalties up to and including termination of this Contract.
- Valley Metro retains the legal right to inspect the papers of any Contractor or subcontractor employee who works on this Contract to ensure that Contractor or subcontractor is complying with the warranties stated in paragraph 1 above.
- Immigration Reform and Control Act of 1986 (IRCA) Required —
Contractor understands and acknowledges that the IRCA applies to it. Contractor agrees to comply with the IRCA during the Term of this Contract and to permit Valley Metro to inspect the personnel records to verify compliance.
- Nondiscrimination Assurance —
- Nondiscrimination Assurance. In accordance with Title VI of the Civil Rights Act, as amended, 42. U.S.C. §2000 (d), section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. §6102, section 202 of the American with Disabilities Act of 1990, 42 U.S.C. §12132, D.C. law and Federal transit law at 49 U.S.C. §5332, Contractor or subcontractor agrees that no person on the ground of race, color, creed, religion, national origin, sex, age, sexual preference, gender identity and/or disability be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity receiving Federal Financial assistance. In addition, Contractor or subcontractor agrees to comply with applicable Federal implementing regulations and other regulations that FTA may issue.
- Equal Employment Opportunity. The following equal employment opportunity requirements apply to this Contract:
- Race, Color, Creed, National Origin, Sex. In accordance with Title VII of the Civil Rights Act, as amended, 42 U.S.C. §2000(e), and Federal transit laws at 49 U.S.C. §5332, Contractor agrees to comply with all applicable equal opportunity requirements of the U.S. Department of Labor (U.S. DOL) including, but not limited to "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor, " 41 C.F.R. Part 60 et. seq., [implementing Executive Order No. 11246, "Equal Employment Opportunity," as amended by Executive Order No. 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," 42 U.S.C. § 2000(e) note], and with any applicable Federal statutes, executive orders, regulations, and Federal policies that may in the future affect activities undertaken in the course of this Contract. Contractor agrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, creed, national origin, sex or age. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. In addition, Contractor agrees to comply with any implementing requirements that FTA may issue.
- Age. In accordance with section 4 of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 623 and Federal transit law at 49 U.S.C. § 5332, Contractor agrees to refrain from discrimination against present and prospective employees for reason of age. In addition, Contractor agrees to comply with any implementing requirements that FTA may issue.
- Disabilities. In accordance with section 102 of the Americans with Disabilities Act, as amended, 42 U.S.C. §12112, Contractor agrees that it will comply with the requirements of U.S. Equal Employment Opportunity Commission, "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 C.F.R. Part 1630, pertaining to employment of persons with disabilities. In addition, Contractor agrees to comply with any implementing requirements that FTA may issue.
- Contractor also agrees to include all of these requirements in each subcontract financed, in whole or in part, with Federal assistance provided by FTA, modified only, if necessary, to identify the affected parties.
- Contractor’s or subcontractor’s failure to carry out these requirements is a material breach of this Contract, that may result in the termination or such other remedy as the Procurement Officer deems appropriate.
- Conflicts of Interest —
- Contractor shall not engage the services in connection with this Contract of any present or former employee of Valley Metro or any Contractor thereto who was involved as a decision maker in the selection or approval processes or who negotiated and/or approved billings or Contract modifications for this Contract. Contractor agrees that, to the best of its knowledge, no public or private interest exists, and none shall be acquired directly or indirectly which would conflict in any manner with the performance of this Contract.
- Without limiting the generality of A.R.S. § 38-501 et seq., no member, officer, employee of Valley Metro or member of its governing body during his/her tenure or for three years thereafter, shall have any interest, direct or indirect, in this Contract or the proceeds thereof. This Contract is subject to termination pursuant to A.R.S. §38-511.
- Contract Work Hours and Safety Standards Act - Overtime Compensation —
This Contract, to the extent that it is of a character specified in the Contract Work Hours and Safety Standards Act (40 U.S.C. §§ 3701-3708), is subject to the following provisions and to all other applicable provisions and exceptions of such Act and the regulations of the U.S. Secretary of Labor contained in 29 C.F.R. Part 5 thereunder.
- Overtime requirements. No Contractor or subcontractor contracting for any part of this Contract’s work that may involve the employment of laborers, mechanics, apprentices, trainees, watchmen, and guards shall require or permit any such employee in any workweek in which the employees are employed to work in excess of forty (40) hours in such work week on work subject to the provisions of this Contract Work Hours and Safety Standards Act unless such employee receives compensation at a rate not less than one and one-half (1 1/2) times their basic rate of pay for all hours worked in excess of forty (40) hours in such work week.
- Violation. Liability for Unpaid Wages - Liquidated damages. In the event of any violation of paragraph (1), Contractor and any responsible subcontractor shall be liable to any affected employee for unpaid wages. In addition, such Contractor and subcontractor shall be liable to Valley Metro for liquidated damages. Liquidated damages shall be computed with respect to each individual laborer, mechanic, apprentice, trainee, watchman or guard employed in violation of paragraph (1) in the sum of $10 for each calendar day on which such employee was required or permitted to be employed on such work in excess of their standard work week of forty (40) hours without payment of the overtime wages required by paragraph (1).
- Withholding for unpaid wages and liquidated damages. The Procurement Officer may withhold from Contractor, such sums as the Procurement Officer determines to be necessary to satisfy any liabilities of such Contractor or subcontractor for unpaid wages and liquidated damages as provided in paragraph (2).
- Subcontracts. Contractor shall insert this clause in all subcontracts at any tier. Contractor shall also require subcontractors to include this clause in any lower tier subcontracts. Contractor shall be responsible for compliance by any and all subcontractors at every tier.
- Records. Contractor shall maintain payroll records containing the information specified in 29 C.F.R. § 516.2(a). Such records shall be preserved for three (3) years from the completion of this Contract.
- Davis-Bacon Act —
- Under 49 U.S.C. § 533(a), Davis-Bacon Act prevailing wage protections apply to laborers and mechanics employed on FTA assisted construction, alteration or repair projects in excess of $2,000.00, The Davis-Bacon Act requires that Contractor pay wages to laborers and mechanics at a rate of not less than the minimum wages specified in the wage determinations made by the U.S. Secretary of Labor, at least one (1) time per week, without subsequent deductions or rebates on any account, except such payroll deductions as permitted by the U.S. Secretary of Labor. Contractor understands that Contract award is conditioned upon its acceptance of U.S.DOL's prevailing wage determinations that are attached to the solicitation. Contractor agrees to comply with the Davis-Bacon Act, 40 U.S.C. § 3141, et. seq. and implementing DOL regulations "Labor Standards Provisions Applicable to Contracts Governing Federally Financed and Assisted Construction. 29 C.F.R. Part 5.
- Agency may upon its own action or upon written request of an authorized representative of the U.S. Department of Labor, withhold or cause to be withheld from Contractor under this Contract, or any other Federal contract that Contractor has with Agency, or any other Federally-assisted contract subject to Davis-Bacon prevailing wage requirements, so much of the accrued payments or advances as may be necessary to pay laborers and mechanics, including apprentices, trainees, and helpers employed by Contractor or any subcontractor, the full amount of the wages required by this Contract. In the event that Contractor fails to pay any laborer or mechanic, including any apprentice, trainee or helper employed or working on the jobsite, all or part of the wages required by this Contract, Agency may, after written notice to Contractor, suspend further payments or advances or guarantees until such violations have ceased.
- Contractor shall maintain payrolls and basic records relating thereto during this Contract and for three (3) years thereafter. Contractor shall submit weekly copies of all payrolls to the Project Manager, for transmission to FTA. The payrolls shall contain all information required by 29 C.F.R. Part 5. Each payroll submitted shall by accompanied by a "Statement of Compliance" signed by Contractor or subcontractor. Falsification of any required certification may subject Contractor or subcontractor to criminal prosecution or a civil suit pursuant to 18 U.S.C. § 1001 and/or 31 U.S.C. §§ 3729-3733 respectively. Contractor or subcontractor shall make the records required under this clause available to authorized representatives of FTA or U.S. DOL and shall permit such representatives to interview employees during working hours on the jobsite. If Contractor or subcontractor fails to submit the required records or make them available, the Federal agency may take further action to cause the suspension of payments, advances or guarantee of funds. Failure to submit the required records may be grounds for suspension or debarment.
- Contractor or subcontractor shall insert the clauses contained in 29 C.F.R. § 5.5(a) and such other clauses that FTA may require in all subcontracts issued hereunder. Contractor shall require subcontractors to include these clauses in lower tier subcontracts. Contractor will be responsible for the compliance by any subcontractor with all of the clauses contained in 29 C.F.R. § 5.5.
- Disputes arising out of the labor standards provisions of this Contract shall not be subject to the general "Disputes" clause of this Contract. Such disputes shall be resolved in accordance with U.S. Department of Labor procedures set forth in 29 C.F.R. parts 5, 6 and 7. Disputes within the meaning of this clause include disputes between Contractor (or any of its subcontractors) and Agency, the U.S. Department of Labor or any of its employees or representatives.
- By entering into this Contract, Contractor certifies that neither it nor any person or firm who has an interest in Contractor's firm is a person or firm that is ineligible to be awarded Government contracts by virtue of section 3(a) of the Davis- Bacon Act and 29 C.F.R. § 512.
- No Israel Boycott —
If this Contract is valued at $100,000 or more and requires Contractor (a company engaging in for-profit activity and having ten or more full-time employees) to acquire or dispose of services, supplies, information technology, or construction, then Contractor must certify and agree that it does not and will not boycott goods or services from Israel, pursuant to Arizona Revised Statutes 35-393. Provided that this statutory requirement is applicable, Contractor by entering this Contract now certifies that it is not currently engaged in and agrees for the duration of this Contract to not engage in, a boycott of goods or services from Israel.
- No Forced Labor of Ethnic Uyghurs —
If this Contract requires Contractor (a company engaging in for-profit activity and having ten or more full-time employees) to acquire or dispose of services, supplies, information technology, goods, or construction, then pursuant to Arizona Revised Statute 35-394, Contractor must certify and agree that it and any contractors, subcontractors, or suppliers it utilizes do not and will not use the forced labor of ethnic Uyghurs in the People’s Republic of China or any goods or services produced by such forced labor. Provided this statutory requirement is applicable, Contractor, by entering this Contract, now certifies it is not currently engaged in, and agrees for the duration of this Contract to not engage in, (a) the use of forced labor of ethnic Uyghurs in the People’s Republic of China; (b) the use of any goods or services produced by the forced labor of ethnic Uyghurs in the People’s Republic of China; or (c) the use of 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.
- Gratuities —
- In connection with performance of this Contract, or any changes or modifications relative thereto, the giving of or offering to give gratuities (in the form of entertainment, gifts or otherwise) by Contractor, or any agent, representative or other person deemed to be acting on behalf of Contractor, or any supplier or subcontractor furnishing material to or performing work under this Contract, to any Board member, employee or agent of Valley Metro; with a view toward securing this Contract or securing favorable treatment regarding this Contract is expressly forbidden. The terms of this "Gratuities" clause shall be strictly construed and enforced in the event of violations hereof.
- Reported instances of the giving or offering to give gratuities within the context of this "Gratuities" clause will be investigated by Valley Metro's Office of Chief Legal Officer, the U.S. Department of Transportation's Office of Inspector General (DOT-OIG), the Offices of Inspectors General of any state or Federal agency providing funding under this Contract and/or appropriate Federal, state and/or local law enforcement authorities.
- The rights and remedies of Valley Metro provided in this clause shall not be exclusive and are in addition to any other rights and remedies provided under this Contract, at law or in equity.
- Covenant Against Contingent Fees —
- Contractor warrants that no person or selling agency has been employed or retained to solicit or secure this Contract upon an agreement for a commission, percentage, brokerage or contingent fee, excepting bona fide employees or bona fide, established commercial or selling agencies maintained by Contractor for the purpose of securing business. For breach of this warranty, Valley Metro shall have the right to terminate this Contract without liability or, in its discretion, to deduct from this Contract's price, or otherwise recover, the full amount of such commission, percentage, brokerage, or contingent fee, if no fraud is suspected.
- If fraud is suspected, Valley Metro's remedy prior to final adjudication by a court of competent jurisdiction is to report the matter to Valley Metro's Chief Legal Officer, the Offices of Inspectors General of any agency providing funding under this Contract and/or appropriate Federal, state and/or local law enforcement authorities.
- Laws and Regulations —
Contractor shall comply with any applicable State of Arizona, Federal and local laws and regulations governing the services and/or supplies to be provided under this Contract. Further, Contractor shall be responsible to obtain, at its own cost and expense, any and all licenses/permits required to transact business in any political jurisdictions where work will be performed.
- Hazardous Material Identification and Safety Data Sheets —
- Contractor agrees to submit Safety Data Sheets (U.S. Department of Labor Form OSHA-3514), as prescribed in Federal Standard No. 313F for all hazardous materials five (5) days before delivery of the material, whether or not listed in the Standard. This obligation applies to all materials delivered under this Contract that involve exposure to hazardous materials or items containing these materials.
- "Hazardous material," as used in this clause, is defined in Federal Standard No. 313F in effect on the date of this Contract.
- Neither the requirements of this clause nor Valley Metro's acts or omissions shall relieve Contractor of any responsibility or liability for the safety of Valley Metro's, personnel or property.
- Nothing contained in this clause shall relieve Contractor from complying with applicable Federal, state, and local laws, codes, ordinances, and regulations (including the requirement to obtain licenses and permits) in connection with hazardous materials.
- Valley Metro's rights in data furnished under this Contract regarding hazardous materials are as follows:
- To use, duplicate and disclose any data to which this clause is applicable. The purposes of this right are to (a) apprise personnel of the hazards that they may be exposed to in using, handling, packaging, transporting, or disposing of hazardous materials (b) obtain medical treatment for those affected by the materials; and (c) have others use, duplicate, and disclose the data for Valley Metro for these purposes.
- To use, duplicate, and disclose data furnished under this clause in precedence over any other provision of this Contract providing for rights in data.
- Valley Metro is not precluded from using similar or identical data acquired from other sources.
- The data shall not be duplicated, disclosed, or released outside of Valley Metro, in whole or in part, for any acquisition or manufacturing purpose, if the following legend is marked on each piece of data to which this clause applies - This data furnished under this Contract shall not be used, duplicated, or disclosed for any acquisition or manufacturing purpose without the Procurement Officer's permission. This legend shall be marked on any reproduction of this data."
- Contractor shall not place any restrictive legend on any data that (i) Contractor or any subcontractor previously delivered to Valley Metro without limitations; or (ii) should be delivered without limitations under the "Rights in Technical Data" clause.
- Contractor shall insert this clause including this paragraph, with appropriate changes in the designation of the parties, in subcontracts at any tier (including purchase designations or purchase orders) under this Contract involving hazardous materials.
- Mandatory Disclosure —
Contractor shall timely disclose, in writing, to Valley Metro's Chief Legal Officer, with a copy to the Procurement Officer, whenever, in connection with the award, performance, or closeout of this Contract or any subcontract hereunder, Contractor has credible evidence that a principal, employee, agent, or subcontractor of Contractor has committed--
- A violation of Federal criminal law involving fraud, conflict of interest, bribery, or gratuity violations found in Title 18 of the United States Code; or
- A violation of the civil False Claims Act (31 U.S.C. §§ 3729-3733).
- Valley Metro, to the extent permitted by law and regulation, will safeguard and treat information obtained pursuant to Contractor's disclosure as confidential where the information has been marked "confidential" or "proprietary" by the company. To the extent permitted by the law and regulation, such information will not be released by Valley Metro to the public pursuant to a Public Records Request (PRR) request. Valley Metro may transfer documents provided by Contractor to any department or agency within the state, Federal or local government, if the information relates to matters within the organization's jurisdiction.
- If the violation relates to an order against a government- wide acquisition contract, a multi-agency contract, a multiple-award schedule contract such as the Federal Supply Schedule, or any other procurement instrument intended for use by multiple agencies, Contractor shall notify Valley Metro's Chief Legal Officer of the ordering agency and the Chief Legal Officer of the agency responsible for the basic contract.
- Organizational Conflicts of Interest —
- Engaging in practices that result in organizational conflicts of interest is prohibited by 2 CFR § 200.112. An organizational conflict of interest (OCI) exists when the nature of the work to be performed under a proposed contract or a subcontract may, without some restriction on future activities result in an unfair competitive advantage to Contractor or subcontractor; because of (1) unequal access to information, (2) biased ground rules or (3) impaired objectivity. An unequal access to information OCI may exist if in performing a Contract, a Contractor obtains access to non-public information that provides it with a competitive advantage in a later competition. A biased ground rules OCI may exist if Contractor has a role in setting rules for a source selection in which it will compete. An impaired objectivity OCI may exist if, in performing a Contract, a Contractor is called upon to evaluate an offer from or performance by, itself or an affiliated entity.
- In the event that Contractor believes that it or any of its potential subcontractors may have an OCI, it shall notify the Procurement Officer, in writing, within five (5) working days after it becomes aware of the potential or actual OCI. The written notification shall identify the nature and circumstances of the perceived conflict and propose appropriate measures to eliminate or mitigate the OCI. The Procurement Officer will review the circumstances and the proposed mitigation plan and notify Contractor stating whether: (1) no mitigation is required; (2) the conflict cannot be mitigated; or (3) the conflict can be mitigated, and they accept the proposed measures or recommends additional measures.
- Contractor's failure to identify such perceived conflicts may result in this Contract being rescinded or terminated.
- Should Contractor identify or become aware of a conflict during the term of this Contract, including any extension thereof that it could not reasonably anticipate prior to award, Contractor shall notify the Procurement Officer in accordance with paragraph (2), or request an exception to the restriction with supporting rationale. The Procurement Officer shall consider Contractor's proposed measures to mitigate or eliminate the conflict, or the request for an exception.
- If the proposed measures are not determined to be feasible or are otherwise not acceptable to the Procurement Officer, the Procurement Officer may terminate this Contract. If the Procurement Officer does not grant a request for an exception, and this Contract is not terminated, Contractor shall be notified in writing and be given ten (10) days from the date of the written notification to take all necessary actions to comply with this clause.
- If the proposed measures are determined to be acceptable to the Procurement Officer, the Procurement Officer may grant a specific exception to this restriction, when in the Procurement Officer's judgment, the exception will not create a conflict between Contractor's duties and obligations under this Contract and the duties and obligations imposed on Contractor under another contractual or other relationship.
- If Contractor fails to comply with the terms of this clause, and there is no evidence of fraud the Procurement Officer, may withhold payments due under this Contract until such time as Contractor is in compliance or, should the noncompliance remain uncorrected at the expiration of ten (10) days from the Procurement Officer's written notice as provided in paragraph (2), terminate for default pursuant to this Contract.
- If the Procurement Officer determines that evidence of fraud exists, Valley Metro's remedy prior to a final determination by a court of competent jurisdiction is to report the matter to Valley Metro's Chief Legal Officer, the U.S. Department of Transportation's Office of Inspector General (DOT-OIG), the Offices of Inspectors General of any state or Federal agency providing funding under this Contract and/or appropriate Federal, state and/or local law enforcement authorities.
- Contractor, in performing this Contract, shall avoid any conduct that might result in or give the appearance of creating for Board members or employees of Valley Metro in their relationship with Contractor, any conflicts of interest or favoritism and/or the appearance thereof and shall avoid any conduct that might result in a Board member, or employee failing to adhere to any Code of Ethics or standards of conduct adopted by Valley Metro's Board of Directors.
- The Procurement Officer's determination under this clause shall be final and shall be considered a question of fact within the meaning of the "Disputes" clause of this Contract.
- Personal Conflicts of Interest —
- In accordance with 2 C.F.R §200.318 (c)(1) neither Contractor nor any person or business entity affiliated with it shall have, during the term of this Contract, (including any extensions) any prohibited financial relationship with Valley Metro, any of its Board Members, officers, directors, employees or agents. Such a prohibited relationship would arise when the employee, officer, or agent, any member of his or her immediate family, his or her partner, or an organization which employs or is about to employ any of these parties, has a financial or other interest in or a tangible personal benefit from a firm being considered for award. A “financial interest” is the potential for gain or loss to the employee, officer, or agent, any member of his or her immediate family, his or her partner, or an organization which employs or is about to employ any of these parties as a result of the particular procurement. The prohibited financial interest may arise from ownership of certain financial instruments or investments such as stock, bonds, or real estate, or from a salary, indebtedness, job offer(s) or similar interests that might be affected by the particular procurement.
- An “apparent” conflict of interest may exist where an actual conflict does not exist, but where a reasonable person with knowledge of the relevant facts would question the impartiality of the employee, officer, or agent participating in the procurement.
- The officers, employees, and agents of Valley Metro must neither solicit nor accept gratuities, favors, or anything of monetary value from Contractors or subcontractors. Valley Metro has standards for situations in which the financial interest is not substantial, or the gift is an unsolicited item of nominal value in accordance with 2 C.F.R. § 200.318(c)(1). A Valley Metro employee may accept a gift that is less than $25.00 in value for a particular occasion or $75.00 in value for a year provided that it is properly reported. Personnel involved in the procurement process, however, may not accept anything of value from a Contractor or subcontractor, unless it consists of modest food and refreshments during a working meeting.
- Upon Contractor’s request and full disclosure, and for good cause shown, the Procurement Officer with the advice and consent of Valley Metro’s Ethics Officer may grant an exception to paragraph (1) above, when the exception will not create a conflict between Contractor’s duties and obligations under this Contract and the duties and obligations imposed on Contractor under this Contractual or other relationship for which the exception is requested.
- If during the performance of this Contract, Contractor becomes aware of any relationship, financial interest or other activity in which it or an affiliated person or business entity is involved that is not in compliance with paragraph (1) above, it shall promptly notify the Procurement Officer, in writing and fully disclose all of the surrounding circumstances. The Procurement Officer with the advice and consent of Valley Metro’s Ethics Officer shall decide whether to grant an exception. If the Procurement Officer does not grant an exception, then Contractor has ten days after written notice to comply with paragraph (1) above.
- If Contractor fails to comply with the terms of this clause, the Procurement Officer, may withhold payments due under this Contract until such time as Contractor is in compliance or, should the non-compliance remain uncorrected at the expiration of ten (10) days from written notice from the Procurement Officer as provided in paragraph (3) above, terminate this Contract for default pursuant to the Default clause of this Contract. Valley Metro’s written standards of conduct provide for disciplinary actions to be applied for violations of such standards by its officers and employees, pursuant to 2 C.F.R. § 200.318(c)(1). For example, the penalty for a Valley Metro employee may be dismissal.
- Contractor in performing this Contract shall avoid any conduct which might result in or give the appearance of creating for Board members, officers, directors or employees of Valley Metro in their relationship with Contractor any conflicts of interest or favoritism and/or the appearance thereof and shall avoid any conduct which might result in a Board member, officer, director or employee failing to adhere to the Code(s) of Ethics adopted by Valley Metro's Board of Directors.
- The Procurement Officer’s determination under this clause shall be final and if properly asserted, shall be constitute a dispute under the Disputes clause of this Contract.
- Contractor Personnel —
- Valley Metro may direct the replacement of Contractor's employees that the Procurement Officer reasonably believes, or whose continued participation in the work performed under this Contract is deemed contrary to the best interests of Valley Metro. Except in circumstances deemed exigent by the Procurement Officer, the reason for replacement will be discussed between Contractor and Valley Metro before a replacement directive is issued. Upon receipt of a written replacement directive from Valley Metro specifying the date by which the replacement must occur, Contractor shall proceed with the replacement and shall do so in a manner that minimizes, to the greatest extent practicable, any impact upon this Contract.
- Contractor personnel that may be required to work on Valley Metro's property shall obtain an Valley Metro vendors' badge and successfully complete any required safety training. Contractor must advise its affected personnel that, to obtain a vendor's badge, Contractor will perform a background check.
- False Statements, Claims or Submissions —
- Contractor acknowledges its responsibility to undertake its obligations under this publicly funded Contract with full integrity and, to take all reasonable steps to ensure that statements, claims and submissions made pursuant to this Contract are provided in good faith and with a reasonable belief as to its truthfulness, accuracy and completeness.
- In the event it is finally determined by a court of competent jurisdiction that any statement, claim, submission, or certification made by or on behalf of Contractor pursuant to a material element of this Contract was knowingly false, fictitious or fraudulent, Valley Metro shall be entitled to recover from Contractor, an amount equal to not more than three (3) times the monetary value of the benefit derived or sought to be derived by Contractor through its false statement, claim or submission. For purposes hereof, an element of this Contract shall be deemed material if it impacted or could reasonably have been intended to impact the disposition of any claim, dispute, proposed or implemented change order, proposed pricing or schedule adjustment of any nature, or other substantive issue directly affecting the rights of the parties under this Contract.
- Valley Metro's remedy prior to a final determination by a court of competent jurisdiction is to report the matter to Valley Metro's Chief Legal Officer, the U.S. Department of Transportation's Office of Inspector General (DOT-OIG), the Offices of Inspectors General of any state or Federal agency providing funding under this Contract and/or appropriate Federal, state and/or local law enforcement authorities.
- Valley Metro's rights set forth in this clause are in addition to any contractual, legal or equitable rights that may arise upon Contractor's submission of a false claim or statement, including without limitation, Valley Metro's right to terminate this Contract for default once fraud is finally determined by a court of competent jurisdiction. The provisions of this clause shall not serve in any respect to limit, waive or modify any civil or criminal liability, of Contractor or any of its officers, agents or employees that such conduct may precipitate.
- Public Communications —
Contractor shall not issue communications to the media, place advertisements, nor publicize through any means the services, goods or construction that it is providing to Valley Metro under this Contract, without prior written consent of Valley Metro. Contractor shall not publish, in print or online, any communications products such as newsletters, press releases, blogs or other communications without Valley Metro's prior, written consent. Approval of any such requests shall be at Valley Metro's sole discretion.
- Federal, State, and Local Taxes —
- Except as may be otherwise provided in this Contract, this Contract's price shall be deemed to include all applicable Federal, state and local taxes and duties.
- If a statute, court decision, written ruling or regulation regarding any Federal excise tax or duty on the transactions or property covered by this Contract takes effect after this Contract's date, and:
- Results in Contractor being required to pay or bear the burden of any such Federal excise tax or duty or rate increase that would not otherwise have been payable on such transactions or property, this Contract's price shall be increased by the amount of such tax or duty or rate increase, if Contractor warrants in writing that no amount for such newly imposed Federal obligation was included in this Contract's price as a contingency reserve or otherwise; or
- Results in Contractor not being required to pay or bear the burden of, or in its obtaining a refund or drawback of, any Federal excise tax or duty that would otherwise have been payable on such transactions or property or that was the basis of an increase in this Contract's price, this Contract's price shall be decreased by the amount of the relief, refund, or drawback, or that amount shall be paid to Valley Metro, as the Procurement Officer directs. If Contractor fails to follow the Procurement Officer's instructions, it will be required to pay or bear the burden of, any such Federal excise tax or duty through a decrease in this Contract price.
- Paragraph (2) above shall not be applicable to social security taxes or to any other employment tax.
- No adjustment of less than $250 shall be made in this Contract's price pursuant to paragraph (2).
- As used in paragraph (2), the term "Contract date" means the date this Contract was executed by Valley Metro. As to additional services, supplies or construction procured by modification to this Contract, the term "Contract date" means the effective date of such modification.
- Contractor shall promptly notify the Procurement Officer of matters that may result in either an increase or decrease in this Contract's price under this clause and shall take action as the Procurement Officer directs. Valley Metro shall be entitled to a reduction in this Contract's price reflecting such amount and a refund of monies paid related to such taxes, plus applicable interest.
- Choice of Law, Consent to Jurisdiction, and Venue —
- This Contract shall be governed by the laws of the State of Arizona.
- Any and all claims asserted by or against Valley Metro arising hereunder or related hereto shall be heard and determined in the courts of the United States located in the State of Arizona, County of Maricopa.
- Severability —
Should one or more of the provisions contained in this Contract be determined to be invalid, illegal, or unenforceable, such provision(s) shall be severed from this Contract as if the provision(s) did not exist and the validity, legality, and enforceability of the remainder of this Contract shall be unaffected. The affected provision(s) shall be amended or interpreted, if possible, so as to correct the deficiency and give effect to the intent of the parties.
- Survival —
Any provision expressly set forth as surviving the expiration or termination of this Contract, shall be deemed to survive any such expiration or termination.
- Debarment or Suspension —
- Contractor is bound by its certification contained in its offer to Valley Metro that neither Contractor, its principals, or affiliates, are suspended, debarred, proposed for debarment or otherwise excluded or disqualified from receiving federal, state or local awards. The certification is a material representation of fact, relied upon by Valley Metro in entering into this Contract. If it is later determined that Contractor knowingly rendered an erroneous certification, in addition to remedies available to Valley Metro, including, but not limited to suspension or debarment, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. Contractor agrees to comply with the requirements of 2 C.F.R, part 180, subpart C as adopted and supplemented by U.S. DOT regulations at 2 C.F.R, part 1200 “Nonprocurement Suspension and Debarment,” including any amendments thereto, Executive Orders Nos. 12549 and 12689 “Debarment and Suspension” 31 U.S.C. § 6101, and other applicable Federal laws, regulations or guidance regarding participation with debarred or suspended contractors throughout the term of this Contract.
- Flow-down requirement. Contractor agrees to include this clause in all subcontracts at all tiers under this Contract requiring lower tier contractors to comply with Federal, state or local suspension and debarment requirements and review the System for Award Management (SAM) at www.sam.gov in order to comply with U.S. DOT regulations at 2 C.F.R, Part 1200 prior to awarding any subcontract under this Contract.
- Progress Payments —
- Contractor may submit requests for payment of milestone or performance- based payments, within thirty (30) days of the events described in the Special Terms and Conditions, in a form and manner that is acceptable to the Procurement Officer. Unless the Procurement Officer directs otherwise, all performance-based payments in any period for which payment is requested shall be included in a single request, appropriately itemized and totaled.
- Contractor shall not be entitled to payment of a request for performance-based payments prior to the successful accomplishment of the event or performance criterion for which payment is requested. The Project Manager shall determine whether the event or performance criterion for which payment has been requested was successfully accomplished in accordance with the terms and conditions of this Contract. The Procurement Officer or Project Manager may, at any time, require Contractor to substantiate the successful performance of any event or performance criterion that it represents as being payable.
- The approval of a request for a performance-based payment does not constitute acceptance under this Contract, and specifically does not excuse Contractor from performance of any obligations under this Contract.
- If at any time, the amount of payments under this Contract exceed any limitations in this Contract, Contractor shall repay the excess to Valley Metro. Unless the Procurement Officer determines otherwise, such excess shall be credited as a reduction in unliquidated performance- based payment balances. The Procurement Officer may reduce or suspend performance- based payments, liquidate performance- based payments by deduction from any payment under this Contract, or take a combination of these actions, after finding one of the following:
- Contractor failed to comply with any material requirement of this Contract;
- Performance of this Contract is endangered by Contractor’s failure to make progress or its unsatisfactory financial condition;
- Contractor is seriously delinquent in the payment of any subcontractor or supplier under this Contract, in the ordinary course of business.
- Title to property described in this paragraph shall vest in Valley Metro upon acceptance in accordance with the Title and Risk of Loss clause.
- Before Valley Metro’s acceptance, Contractor shall bear the risk of loss in accordance with the Title and Risk of Loss clause. If any property is lost, stolen, damaged or destroyed, Contractor shall be deemed not in compliance with this Contract, and the associated milestone shall not be paid, or Contractor shall refund the related performance-based payments.
- Contractor shall maintain records and controls adequate for administration of this clause. Contractor shall have no entitlement to performance-based payments during any time for which the Procurement Officer determines that Contractor’s records or controls were not accurate.
- Contractor shall promptly furnish reports, certificates, financial statements or other pertinent information that the Procurement Officer requests for administration of this Contract or to determine that an event or other criterion triggering a milestone payment has been successfully accomplished. Contractor shall give Valley Metro reasonable opportunity to examine and verify Contractor’s records and Contractor’s performance of this Contract for administration of this clause.
- If this Contract is terminated pursuant to the Termination for Default clause, Contractor shall, upon demand, repay Valley Metro the amount of any unliquidated performance- based payments. In such case, Valley Metro shall not be liable for any payments except as provided in the Default clause.
- Applicable payment items shall be those set forth in the Price Schedule. Milestone payments will be made upon satisfactory completion and acceptance of each line item in accordance with the milestone allocation percentages listed in the Special Terms and Conditions which are synonymous with the program phases shown in the Technical Specifications.
- Technical Specifications Contract Data Requirements List (CDRL), assigns a due date for each CDRL item. Contractor shall review the Technical Specifications and submit recommended changes to the due dates for approval based on the Master Program Schedule.
- Contractor shall assign all deliverables to one of the specific Program Phases in the Master Program Schedule.
- Progress on milestones and deliverables will be measured at phase completion meetings.
- Payments will be made for the listed payment milestones. Partial payments for the listed payment milestones may be considered, but generally will not be made.
- When Contractor has not achieved satisfactory progress during any period for which a progress payment or milestone payment is to be made, a percentage of the payment may be retained. Retainage should not be used as a substitute for good contract management, and the Procurement Officer should not withhold funds without cause. The Procurement Officer shall make determinations to retain and the specific amount to be withheld on a case-by-case basis. Such decisions will be based on the Procurement Officer's assessment of past performance and the likelihood that such performance will continue. The amount of retainage withheld shall not exceed ten percent (10%) of the approved, estimated amount in accordance with the terms of this Contract and may be adjusted as this Contract approaches completion to recognize better than expected performance, the ability to rely on alternative safeguards, and other factors. Upon completion of all Contract requirements, retained amounts shall be promptly returned.
- Safety Requirements —
- Valley Metro's Construction Safety requirements to Contractors are incorporated into this Contract provisions and through an Valley Metro-developed Construction Safety Manual (CSM). Valley Metro requires all Contractors to assure that all employees, subcontractors, and their suppliers/vendors, while on the work site, comply with the minimum standards set forth under the Williams-Steiger Occupational Safety and Health Act of 1970 and as amended, the Construction and General Industry Standards (29CFR1926/1910), and all other applicable Federal, State and Local Laws. Contractors are expected to be familiar with the regulations as applicable to their operations. Non-compliance with the OSHA regulations, of Valley Metro CSM, will be treated the same as non-compliance with any Contract provision.
- Valley Metro requires that safety at the work site shall be the sole responsibility of Contractor. Federal State, and local regulations shall be used as a guise in developing Contractor's Accident Prevention Program. Contractor shall assume full responsibility for compliance with all applicable Valley Metro, Federal, State and Local safety related regulations during the performance of all activities.
- Contractor shall be responsible for ensuring compliance with the most stringent provisions of the applicable statutes and regulations of the State or Arizona or political subdivision where the work is being performed, as well as the Construction Safety Manual issued by Valley Metro, and the U.S. Department of Labor OSHA standards pertaining to the safe performance of the work. In the absence of a specific construction industry standard, Contractor is required to comply with either an established OSHA General Industry Standard, National Institute for Occupational Safety and Health (NIOSH) guidelines, American Conference of Governmental Industrial Hygienists (ACGIH) guidelines, American National Standards Institute (ANSI) guidelines, the Public Transportation Valley Metro Safety Plan, Valley Metro Construction Safety and Environmental Manual, or the Transportation Rulebook, and Standard Operating Procedures. For contracts where work will be performed on, or will interface with the Valley Metro Rail System, Contractor shall also comply with the publication entitled "Transportation Rulebook, and Standard Operating Procedures". In the event of a conflict between these guidelines and applicable Federal, State or local health and safety laws, regulations or standards, the more stringent standard shall apply. Further, Contractor shall ensure that all methods of performing the work do not involve danger to the personnel working at the site, and the public and private property, whether or not these methods are cited or indicated in this Contract. Contractor shall immediately provide to the Procurement Officer, a copy of all citations and/or warnings of safety violations received from any Federal, State or local jurisdiction or agency thereof, and/or all notifications of safety violations from insurance companies. Contractor shall also provide to the Procurement Officer, copies of any and all subpoenas, complaints or other documents relating to any lawsuit alleging safety violations.
- Contractor shall employ and assign a full-time Safety Superintendent for Contracts involving "safety sensitive" functions. (See Combined Glossary attached hereto for a definition). The Safety Superintendent shall have a minimum of three (3) years of construction safety experience and hold an OSHA thirty (30) hour course card. They shall have the ability to develop and conduct safety training courses. They shall be familiar with industrial hygiene equipment and testing as required for the protection of all employees. The Safety Superintendent shall be employed exclusively for the purpose of supervising the safety of persons on or about the worksite and the property affected thereby. The Safety Superintendent shall also be responsible for providing first aid at the worksite and must have a current Red Cross First Aid Certificate. Contractor shall notify the Procurement Officer a reasonable amount of time beforehand, any time that the Safety Superintendent will not be on site during work hours. If, at any time, the worksite is without the services of an approved Safety Superintendent for a period of three (3) calendar days or more, the work may be closed down at the Procurement Officer's discretion. The Safety Superintendent must be acceptable to the Procurement Officer and his or her performance will be reviewed on a continuing basis. If the Safety Superintendent's effectiveness is below standard, Contractor shall provide immediate replacement at the Procurement Officer's direction. Once employed, the Safety Superintendent shall not be changed without the Procurement Officer's permission. The Safety Superintendent can be terminated at any time, at the Procurement Officer's discretion.
- Contractor shall provide, at the site of the work, a first aid kit which shall be fully equipped to meet the needs of the anticipated work force.
- Contractor shall follow all appropriate RAIL Operational Rules, Operational Administrative Procedures (OAPs), Standard Operational Procedures (SOPs) and General and Special Orders while on the operational railroad and all Start-Up Rules and Manager's Notices when in declared start-up areas.
- Criminal Background Check Requirement —
- As a prerequisite to eligibility for an Valley Metro-issued identification and access badge, access to Valley Metro's customers, property, or confidential information, and in consideration for this Contract, Contractor shall have the sole responsibility for, and shall assure, adequate criminal background screenings on a routine basis of all of its personnel who are or will be working on Valley Metro's premises or otherwise have access to Valley Metro's customers, property, or confidential information.
- Contractor shall implement, not later than notice to proceed, a criminal background check screening of Contractor's personnel that shall take into consideration (1) the nature of the services or work being performed under this Contract with particular regard for the individual's access to, and interaction with, Valley Metro's customers, property, and confidential information; (2) the nature or gravity of the offense or conduct resulting in a criminal conviction; and (3) the time that has lapsed since the conviction and/or completion of the sentence.
- Contractor shall contract with, or otherwise engage, a reputable third-party vendor to conduct the required criminal background screenings and shall provide the vendor with a copy of its criminal background check screening policies and procedures.
- Contractor shall not place any person on or engage any person under this Contract, unless that person passes Contractor's criminal background screening. At the end of each calendar quarter, Contractor shall certify to the Project Manager its compliance with this criminal background screening requirement and confirm that all persons required to be screened passed Contractor's criminal background screening before working on this Contract. For the sole purpose of monitoring Contractor's compliance, Valley Metro reserves the right to request additional documents or perform its own criminal background screening of Contractor's personnel. The Procurement Officer will inform Contractor, in writing, of any proposed action within a reasonable time before such action is taken.
- Contractor shall indemnify and hold Valley Metro harmless from any and all claims, demands, damages, costs and expenses, including attorneys' fees and other costs and expenses associated with any claims, demands, requests for relief, and/or other liabilities arising out of or resulting from Contractor's criminal background screening obligations and processes.
- Contractor will include this requirement in all subcontracts under this Contract and receive certifications from their subcontractors to ensure that its subcontractors' personnel who are or will be working on Valley Metro's premises (whether they receive a One Badge or not) or otherwise have access to Valley Metro's customers, property, or confidential information undergo the required criminal background checks.
- Non-Disclosure and Data Access Terms —
This Non-disclosure and Data Access clause set forth Contractor’s obligations regarding Contractor’s access to and use of Valley Metro’s proprietary, confidential, or personally identifiable information (PII) in order to carry out the requirements of this Contract. Valley Metro may provide such information in accordance with this clause.
Unless otherwise identified, all terms defined within this clause apply only to those terms as they appear herein. If similar terms appear elsewhere within this Contract, such terms shall have the meaning assigned to them in that context.
- Definitions.
- “Confidential Information” shall mean any non-public, proprietary, or otherwise protected data, information, documents or other material, whether in tangible or intangible form, in whatever medium that Valley Metro provides to Contractor that is designated as confidential or similarly marked. Confidential information may include, without limitation: (1) any marketing strategies, plans, financial information, or projections, costs, operations, sales estimates, business plans or business process information, and business performance results relating to the past, present or anticipated future business activities of such party, its affiliates, subsidiaries and affiliated companies; (2) plans for development, engineering, or manufacturing of products or services, and customers or suppliers; (3) any scientific or technical information, invention, design, process, procedure, formula, improvement, technology or method; (4) any concepts, reports, data, research, know- how, works-in-progress, designs, development tools, specifications, computer software, source code, object code, flow charts, databases, inventions, information and trade secrets; (5) any screening, applicant, or pre-employment assessments, surveys, or other testing; (6) any Valley Metro customer data; (7) any other information that may reasonably be recognized as confidential information whether or not designated as such; and (8) any copies or portions of documents prepared by or for Contractor, or information Contractor or its representatives generate that contains, reflects, or is derived from any of the foregoing. Any information received orally shall be treated as Confidential Information, if Valley Metro identified the information as confidential or proprietary prior to its disclosure or if the information orally disclosed would be understood by a reasonable person to be confidential. The existence of this clause and the discussions between the parties with respect to the purposes hereof and the status of such discussions shall also be considered confidential and shall be subject to the nondisclosure obligations set forth herein.
- “Personal Information” means public or non-public information that Valley Metro provides or transmits to Contractor, or to which Valley Metro provides access to Contractor or that a third party provides to Contractor on Valley Metro’s behalf, that identifies or can be used to identify an individual, either alone or in combination with other information or is otherwise designated as Personal Information by applicable law.
- “Protected Information” means Confidential Information and Personal Information.
- “Contractor's Affiliates” shall mean any legal entity directly or indirectly controlling, controlled by or under common control with Contractor. For purposes of this clause, Contractor’s Affiliates shall also include any subcontractors, agents or independent Contractors performing work for Contractor.
- “Security Incident” means any act or omission that actually or potentially compromises either the security, confidentiality, integrity or availability of Protected Information or the Security Standards that Contractor puts in place relating to the protection of the security, confidentiality, integrity or availability of Protected Information. A Security Incident includes any inadvertent or unauthorized use, loss, alteration, access, copying or disclosure of any of the Protected Information.
- “Security Standards” means industry standard security features in all physical, technical, administrative and organizational safeguards that Contractor uses to access, store, process and/or transmit the Protected Information, in alignment with ISO/IEC 27001, as that standard or its successor standards may be amended.
- Confidentiality and Non-Use. Contractor shall have the right to refuse to accept any Protected Information under this clause prior to disclosure. Protected Information disclosed despite such a refusal shall nonetheless be covered by the confidentiality obligations under this clause. As a condition of Valley Metro’s disclosure of Protected Information, Contractor shall, and, if applicable, cause its Contractor’s Affiliates to access, store, process and/or transmit Protected Information solely within the United States, at all times. In addition, Contractor shall require that any of its employees or Contractor’s Affiliates’ employees accessing, storing, processing and/or transmitting Protected Information reside and work within the continental United States at all times. Contractor shall restrict the storage of Protected Information to servers, workstations, networks or any other device of any kind physically located within the continental United States. Upon receipt of Protected Information, Contractor shall and, if applicable, cause its Contractor's Affiliates to:
- Use the highest degree of care to keep Protected Information strictly confidential and not disclose to persons or entities other than Contractor or Contractor's Affiliates who have a reasonable need to know such Protected Information in connection with the permitted purposes hereunder and who have executed a non-disclosure agreement with terms no less stringent than this clause. Contractor will be liable for its Contractor's Affiliates' unauthorized use and/or disclosure whether caused by negligence or otherwise;
- Use such Protected Information solely and exclusively for the limited purposes described herein and for no other purposes whatsoever, except with the prior written consent of Valley Metro; and
- Use the highest degree of care to protect Personal Information at all times in strict compliance with all applicable laws and current Security Standards in order to prevent any unauthorized use, including disclosure, loss or alteration. Within thirty (30) days of a written request from Valley Metro or termination of these Supplemental Terms, Contractor shall, at its option, either: (1) return the Protected Information to Valley Metro ,; or (2) destroy the Protected Information pursuant to the media sanitization guidelines set forth in National Institute of Standards and Technology special publications (SP) to include SP 800-88 Rev.1 as these guidelines or successor guidelines may be amended and provide Valley Metro with a certificate signed by an officer of Contractor stating that such destruction has occurred.
- Exceptions to the Confidentiality and Non-Use Obligations (Applicable Only to Confidential Information). The obligations imposed by paragraph 2 shall not apply, or shall cease to apply, to Confidential Information if or when, and to the extent that, such Confidential Information:
- is or becomes lawfully available to the public or within the public domain other than as a result of Contractor’s disclosure in violation of this clause or due to some other unlawful disclosure by an unrelated third party; or
- was lawfully in Contractor's possession prior to receipt from Valley Metro whether before or after this Contract’s execution; or
- was received by Contractor independently from a third party free to lawfully disclose such information to Contractor; or
- is subsequently developed independently by Contractor; or is approved in writing by Valley Metro for disclosure or use.
- disclosure is required by law or applicable legal process, provided that Contractor in making such disclosure shall: (1) give Valley Metro as much prior notice as is reasonably practicable so that Valley Metro may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, it may elect and; (2) reasonably cooperate with Valley Metro to protect the confidential or proprietary nature of the Confidential Information that must be disclosed. For the sake of clarity, none of the above exceptions shall apply to Personal Information that must be protected from inadvertent or unauthorized disclosure at all times.
- Inadvertent or Unauthorized Disclosure; Security Incidents: Contractor shall comply with all applicable laws that require the notification of individuals in the event of a Security Incident, or other incident requiring notification. In the event of a Security Incident, or other incident requiring notification under applicable law, Contractor agrees to:
- Notify Valley Metro by telephone and e-mail of such an event within 48 hours of discovery,
- Assume responsibility for informing all such individuals in accordance with applicable law,
- In addition to its general indemnification obligations in paragraph 7 below, indemnify, hold harmless and defend Valley Metro and its stakeholders, officers, and employees from and against any claims, damages, or other harm related to Security Incidents; and
- If Contractor becomes aware that Protected Information may have been accessed, disclosed, acquired or lost without proper authorization and contrary to the terms of this clause or this Contract, then Contractor shall immediately take such actions as may be necessary to preserve forensic evidence and eliminate the cause of the Security Incident. Contractor shall give highest priority to immediately correcting any Security Incident and shall devote such resources as may be required to accomplish that goal. Contractor shall provide Valley Metro information necessary to enable Valley Metro to fully understand the nature and scope of the Security Incident.
- No Creation or Transfer of Rights to Protected Information or Intellectual Property. Nothing in this clause shall oblige Valley Metro to make any particular disclosure nor to give Contractor any rights, title, license or interest whatsoever in or to the Protected Information or in or to any existing or future patents, know-how, inventions, trademarks, copyrights or Valley Metro’s other intellectual property.
- No Representations or Warranties. UNLESS MADE BY VALLEY METRO IN WRITING, ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO PROTECTED INFORMATION, WHETHER EXPRESS OR IMPLIED, ARE DISCLAIMED.
- Indemnification. Contractor shall indemnify, defend and hold Valley Metro its Board members, stakeholders, officers, and employees harmless from all claims, liabilities, damages, or judgments involving a third party, including Valley Metro’s costs and attorney fees, arising out of or in connection with Contractor’s failure to meet any of its obligations under this clause including, but not limited to Contractor’s obligations to safeguard Protected Information from Security Incidents.
- Duration of Obligations. Contractor’s obligations under this clause shall continue in full force and effect and be coterminous with this Contract. However, the obligations not to use or disclose, and to return on request or destroy Protected Information already disclosed to Contractor at the time of termination shall continue for as long as Contractor holds the Protected Information.