MOU CITY OF SURPRISE 3.28_FINAL REVISED.PDF
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City of Surprise Memorandum of Understanding Page 1 of 22 MEMORANDUM OF UNDERSTANDING BETWEEN MARICOPA COUNTY ADMINISTERED BY ITS HUMAN SERVICES DEPARTMENT AND CITY OF SURPRISE MOU Start Date: April 1, 2025 MOU Termination Date: June 30, 2026 Project Period: July 1, 2025, through June 30, 2026 1.0 PARTIES This Memorandum of Understanding (“MOU”) is entered into between the City of Surprise (“City”) and Maricopa County, administered by its Human Services Department (“County”). The City and the County shall collectively be referred to as the “Parties” and individually as “Party.” 2.0 INTENT Maricopa County, through a 3rd Party Construction Contractor, administered by Maricopa County Facilities Management Division (FMD) will complete facility improvements (the “Project”) at the Surprise Community & Resource Center (“SCRC”). The facility improvements will be made to the exterior space as identified in Exhibit XX. These improvements will provide a developmentally appropriate outdoor playground for children aged 0-5 that complies with Federal, State, County and local Program and safety standards. 3.0 TERM OF MOU 3.1 This MOU shall be effective through June 30, 2026. 3.2 Either Party may terminate this MOU at any time, with sixty (60) days’ notice in writing to the other Party (unless terminated by either Party due to the Availability of Funds provision set forth below in 4.0 or the Termination provision set forth below in 10.0). 4.0 FACILITY IMPROVEMENT EXPENDITURE AMOUNT The County expenditure shall not exceed $249,999 for the facility improvements as outlined in Exhibit A Scope of Work, provided to the County by the U.S. Department of Health and Human Services (DHHS)/Administration for Children and Families (ACF), Office of Head Start (OHS). 5.0 AVAILABILITY OF FUNDS Every performance of the Parties under this MOU is conditioned upon the availability of funds appropriated, allocated or granted for program service delivery. The County shall be the sole authority in determining the availability of funds under this Agreement. If the County determines City of Surprise Memorandum of Understanding Page 2 of 22 that funds are not available for completion of the Project outlined in the Exhibit A Scope of Work, the county may cancel this MOU. The County shall keep the City fully informed as to the availability of funds. The Project expenditure period of availability is July 1, 2025, through June 30, 2026. 6.0 AMENDMENTS Any changes to this MOU shall be in writing and signed by both Parties. 7.0 ACRONYMS AND DEFINITIONS Acronyms and Definitions found under 2 C.F.R. §§ 200.0 & 200.1 are incorporated by reference. 8.0 ADMINISTRATIVE CHANGE ORDERS 8.1 The Chairman of the Board of Supervisors is authorized, upon the recommendation of the Human Services Department Director and Legal Counsel, to review and execute administrative changes to the Agreement on behalf of the County through Administrative Change Orders. Administrative Change Orders will be effective upon execution by both the Parties. Administrative Change Orders shall address any of the following changes: 8.1.1 Modifications to the project timeline if the last day of the project timeline is within the MOU term. 8.1.2 Modifications to budget line items if the MOU amount remains unchanged. 8.1.3 Modifications required by federal, state, or County regulations, ordinances, or policies; and/or 8.1.4 Modifications to administrative requirements such as changes in reporting periods, frequency of reports, or report formats required by federal, state or local regulations, policies, or requirements 9.0 RESPONSIBILITIES OF THE PARTIES: 9.1 The City shall: 9.1.1 Ensure the SCRC is constructed at 12641 W. Santa Fe Drive, Surprise, Arizona 85378. 9.1.2 Provide the County a fully prepared and improved pad site upon which County shall complete the Project improvements as outlined in Exhibit A. 9.1.3 Communicate with the County in a timely manner regarding changes to the Project timeline, anticipated delays or issues, significant disruptions and related issues, or other information the County should be aware of to complete the Project as outlined in Exhibit A. 9.1.4 Work alongside the County in the design and development of complimentary play structure(s) / feature(s) within the allotted space reflected in Exhibit A. 9.1.5 Provide the County’s contractors and/or subcontractors with sufficient access and accommodation to allow them to complete the playground improvements and installations described in Exhibit A. 9.1.6 Maintain the construction schedule for the outdoor space for the playground area so that the Project is completed according to the set timeline and the County and/or its Contractors and subcontractors do not incur additional costs for the playground improvements and installations resulting from delays, additional time expenditures and/or changes to the scope of services. 9.1.7 Maintain, clean, repair and update the playground improvements and installations according to Property provision set forth below in 19.0. 9.2 The County shall: 9.2.1 Report to the U.S. Department of Health and Human Service Office of Head Start on the use of funds outlined in Exhibit A Scope of Work. 9.2.2 Follow the Federal Procurement Standards set forth in 2 C.F.R. § 200.318 to contract with a qualified Contractor to complete the improvements and installations described in the Scope of Work in Exhibit A. City of Surprise Memorandum of Understanding Page 3 of 22 9.2.3 Design and install a fully functional playground/play area, in compliance with all applicable laws, rules, and regulations regarding public improvements that the City must adhere to, as reflected in Exhibit A of this MOU, within the terms and conditions of this MOU. 9.2.4 The County understands and acknowledges that the City may be subject to certain laws, rules, and regulations regarding public improvements and that the Parties jointly will comply with all such laws, rules, and regulations to the extent applicable. 9.2.5 Communicate with the City in a timely manner regarding changes to the Project timeline, anticipated delays or issues, significant disruptions and related issues, or other information the City should be aware of to complete the Project as outlined in Exhibit A. 9.2.6 Ensure project compliance with federal, state, and County requirements as they relate to the Office of Head Start. 10.0 TERMINATION 10.1 Under A.R.S. § 38-511, the Parties may cancel this MOU without penalty or further obligation within three years (3) after execution of this MOU, if any person significantly involved in initiating, negotiating, securing, drafting or creating this MOU on behalf of one Party at any time while this MOU or any extension of this MOU is in effect, is or becomes an employee or agent of any other Party to this MOU in any capacity or consultant to any other party to this MOU with respect to the subject matter of this MOU. Additionally, pursuant to A.R.S. § 38-511, either Party may recoup any fee or commission paid or due to any person significantly involved in initiating, negotiating, securing, drafting, or creating this MOU on behalf of the one Party from the other Party to this MOU arising as the result of this MOU. A cancellation notice made under this Subparagraph shall be effective when the recipient receives a written notice of cancellation unless the notice specifies a later date. 10.2 Either Party may terminate this MOU at any time by giving the other Party at least sixty (60) calendar days prior notice in writing (unless terminated by a Party under the Availability of Funds provision). Any notice shall be given by either personal delivery or registered or certified mail, postage prepaid and return receipt requested, to the persons at the addresses set forth in Section 13.0 of this MOU. In the event of termination, the Parties shall be liable for payment only for reimbursable costs incurred prior to the effective date of the termination, provided that such services were performed in accordance with the provisions of this MOU. Neither Party shall be liable for any incomplete or additional performance under the MOU unless expressly stated herein as an obligation that survives termination. 10.3 The County may suspend or terminate this MOU if the City violates any term or condition of this MOU or if the City fails to maintain a good-faith effort to carry out the purpose of this MOU 11.0 NOTICES Communication and details concerning this MOU shall be directed to the following representatives: Human Services Department Director 234 N. Central Avenue, 3rd Floor Phoenix, AZ 85004 Desk: 602-506-5911 Seth Dyson, Human Service & Community Vitality City of Surprise 16000 N. Civic Center Plaza Surprise, AZ 85374 12.0 EMPLOYMENT DISCLAIMER 12.1 This MOU is not intended to constitute, create, give rise to, or to otherwise recognize a joint venture, partnership, or other formal business association or organization of any kind, and the rights and obligations of the Parties shall be only those expressly set forth in this MOU. City of Surprise Memorandum of Understanding Page 4 of 22 12.2 The City agrees that no individual performing under this MOU on behalf of the City shall be considered a County agent, employee, or representative and those individuals are not entitled to County civil service rights, County retirement rights, or any other rights provided under the County personnel rules, nor shall those rights accrue or apply to any such individual. The City shall have total responsibility for all salaries, wages, bonuses, retirement, withholdings, workers’ compensation, occupational disease compensation, unemployment compensation, other employee benefits, and all taxes and premiums appurtenant thereto concerning such individuals and the City shall indemnify, defend and hold harmless the County with respect to the foregoing. 12.3 The County agrees that no individual performing under this MOU on behalf of County may be considered a City agent, employee, or representative and that no rights of City civil service, City retirement, or City personnel rules shall accrue or apply to any such individual. The County shall have total responsibility for all salaries, wages, bonuses, retirement, withholdings, workers’ compensation, occupational disease compensation, unemployment compensation, other employee benefits, and all taxes and premiums appurtenant thereto concerning such individuals and the County shall indemnify, defend and hold harmless the City with respect to the foregoing. 13.0 GENERAL REQUIREMENTS 13.1 The terms of this MOU shall be construed in accordance with Arizona law and the applicable laws and regulations of the U.S. Department of Health and Human Services (DHHS)/Administration for Children and Families (ACF), Office of Head Start (OHS). Any lawsuit arising out of this MOU shall be brought in the superior court of Maricopa County, Arizona. 13.2 The Parties shall, without limitation, obtain and maintain all licenses, permits and authority necessary to do business, render services and perform work under this MOU, and shall comply with all laws regarding unemployment insurance, disability insurance and worker's compensation. 13.3 The Parties shall comply with the regulations prohibiting conflict of interest. The Parties shall not make any payments, either directly or indirectly, to any person, partnership, corporation, trust, or other organization that has a substantial interest in City's organization or with which the City (or any of its directors, officers, owners, trust certificate holders, or a relative thereof) has a substantial interest, unless a Party(ies) has made full written disclosure of the proposed payments to the County or the City and has received written approval for the payments. 13.4 For purposes of this provision, the terms "substantial interest" and "relative" shall have the meanings prescribed by A.R.S. § 38-502. 14.0 ASSIGNMENT AND SUBCONTRACTING No right, liability, obligation, or duty under this MOU may be assigned, delegated, or subcontracted, in whole or in part, without the prior written approval of the other Party. 15.0 DISPUTES 15.1 Except as otherwise provided for in this MOU, the Parties may attempt to informally resolve any dispute arising out of this MOU for a reasonable period of time, but which shall not exceed ninety (90) calendar days. Disputes which are not resolved in that time period shall be submitted in accordance with the following formal dispute resolution process. 15.2 Notice of the specific grounds of a formal dispute shall be in writing and filed with the County Representative listed in the Notices paragraph within ten (10) business days from the expiration of the informal dispute resolution process described above in 15.1. 15.3 The County Representative shall respond in writing to the City within fourteen (14) business days. The decision of the County Representative shall be final and conclusive unless, within seven (7) business days after the date the City is served with the decision, the City files a written notice of appeal with the Human Services Department Director. City of Surprise Memorandum of Understanding Page 5 of 22 15.4 The Department Director shall provide the City with a written response within fourteen (14) business days following receipt of the notice of appeal. The decision of the Director shall be final. 15.5 In the event the City disagrees with the Director’s decision, the City shall have every existing and future right or remedy available by law or in equity to resolve the dispute. If the Parties fail to come to a resolution through the dispute process set forth in this section 15.0, either Party may pursue formal litigation. 16.0 SEVERABILITY If any provision of this MOU is determined to be invalid, void, or illegal by a court, that determination shall in no way affect, impair, or invalidate any other provision of this MOU, and the remaining provisions shall remain in full force and effect. 17.0 STRICT COMPLIANCE One Party’s acceptance of the other Party’s performance that is not in strict compliance with the terms of this MOU, shall not be deemed to waive the requirements of strict compliance for all future performance. All changes in performance obligations under this MOU shall be in writing and signed by both Parties. 18.0 SINGLE AUDIT ACT REQUIREMENTS The City is in receipt of federal funds through the County and is subject to the federal audit requirements of the Single Audit Act of 1984, as amended (Pub. L. No. 98-502) (codified at 31 U.S.C. § 7501, et seq.). The City shall comply with 2 C.F.R. § 200, Subpart F. Upon completion, such audits shall be made available for public inspection. Audits shall be submitted to the County within the twelve (12) months following the close of the fiscal year. The City shall take corrective action within six (6) months of the date of receipt of audit findings. The County shall consider sanctions as described in 2 C.F.R. § 200.505 if it is determined by the County that the City is not in compliance with the audit requirements. 19.0 PROPERTY The use and disposition of real property and equipment under this MOU shall be in compliance with the requirements of 2 C.F.R. § 200 and 24 C.F.R. §§ 570.502, 570.503, and 570.504, as applicable, which include but are not limited to the following: 19.1 Any County facility improvements and property installed, furnished or purchased pursuant to the terms of this MOU shall be maintained, cleaned, repaired, updated and accounted for solely by the City in accordance with the Responsibilities of the Parties provision in 9.0. The costs to maintain and repair such property are the sole responsibility of the City as the sole and separate owner of the property known as the SCRC. 19.2 Any City facility improvements and property installed, furnished or purchased pursuant to the terms of this MOU shall be maintained, cleaned, repaired, updated and accounted for by the City as the sole responsibility of the City and sole and separate owner of the property known as the SCRC. 20.0 LIMITATION ON LIABILITY The Parties hereby mutually agree that each Party and their respective agents, representatives, officials, officers, directors, employees, volunteers, departments, agencies, boards, committees, and commissions shall not be liable for any act or omission by the other Party or any and all of its agents, representatives, officials, officers, directors, employees, volunteers, departments, agencies, boards, committees, or commissions occurring in the performance of this MOU, nor shall the Parties and their respective agents, representatives, officials, officers, directors, employees, volunteers, departments, agencies, boards, committees, and commissions be liable for purchases or contracts made by the other Party or any and all of its agents, representatives, officials, officers, directors, employees, volunteers, departments, agencies, boards, committees, or commissions in connection with this MOU, except as otherwise provided by law. City of Surprise Memorandum of Understanding Page 6 of 22 21.0 RECIPROCAL INDEMNIFICATION Each Party (as “Indemnitor”) agrees to indemnify, defend, and hold harmless the other Party and its officers, officials, employees, and agents (collectively, “Indemnitees”) from and against all claims, losses, liability, costs, or expenses (including reasonable attorneys’ fees, expert fees and other litigation costs) (collectively referred to as “Claims”) either arising from or related to breach of this MOU, property damage, or bodily injury (including death) of any person, but only to the extent that such Claims are caused by the act, omission, negligence, misconduct, or other fault of the Indemnitor or any of its officers, officials, agents, representatives, directors, employees, volunteers, departments, agencies, boards, committees, and commissions. The obligations under this Section 21.0 shall survive termination of this MOU. 22.0 INSURANCE Each Party is a Public entity and shall provide the other Party with a Certificate of Self-Insurance equal to the types and amounts specified below: General Aggregate $3,000,000 Each Occurrence Limit $1,000,000 23.0 OFFSHORE PERFORMANCE OF WORK PROHIBITED Due to security and identity protection concerns, direct services under this MOU shall be performed within the borders of the United States. Any services that are described in the specifications or scope of work that directly serve the State of Arizona or its clients and may involve access to secure or sensitive data or personal client data or development or modification of software for the State shall be performed within the borders of the United States. Unless specifically stated otherwise in the specifications, this definition does not apply to indirect or “overhead” services, redundant back-up services, or services that are incidental to the performance of the MOU. This provision applies to all work performed by Cities or Subcontractors at all tiers 24.0 CLEAN AIR ACT If the total face value of this MOU exceeds $100,000, the Parties agree to comply with all regulations, standards and orders issued pursuant to the Clean Air Act of 1970, as amended (42 U.S.C. §§ 7401, et seq.), to the extent any are applicable by reason of performance of this MOU. 25.0 LOBBYING 25.1 No federal appropriated funds have been paid or will be paid by or on behalf of the Parties to any person for influencing or attempting to influence an officer or employee of any agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with the awarding of any federal agreement, the making of any federal grant, the making of any federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any federal agreement, grant, loan, or cooperative agreement. 25.2 If any funds, other than federal appropriated funds, have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with any federal agreement, grant, loan or cooperative agreement, then the Party shall complete and submit OMB Form-LLL, titled "Disclosure of Lobbying Activities," in accordance with its instructions and 31 U.S.C. § 1352. 26.0 RELIGIOUS ACTIVITIES The Parties warrant that none of their costs and none of the costs incurred by them or any of their contractors or subcontractors will include any expense related to any religious activities. 27.0 POLITICAL ACTIVITY PROHIBITED City of Surprise Memorandum of Understanding Page 7 of 22 None of the funds, materials, property, or services contributed by the County under this MOU shall be used for any partisan political activity, or to further the election or defeat of any candidate for public office. 28.0 COVENANT AGAINST CONTINGENT FEES The City warrants that no persons or entities have been employed or retained by it to solicit or secure this MOU upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee. For breach or violation of this warranty, the County may immediately terminate this MOU without liability. 29.0 WAGE DETERMINATION REQUIREMENTS 29.1 The Parties warrant that they shall pay all of its employees who are engaged in either performing work or providing services under the terms of this MOU not less than the minimum wage specified under Section 206(a)(1) of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. §§ 201, et seq.), by law and regulation, and, as applicable, Executive Order 13658, as amended, and as specified by Arizona law. 29.2 Pursuant to the Federal Funding Provisions and Compliance Requirements as set forth in the Davis Bacon and Related Acts (collectively, the DBRA) as amended (40 U.S.C. §3141 et seq) and further identified below in subparagraph 49.2, requires the payment of prevailing wage rates to all laborers and mechanics on Federal Government and District of Columbia construction projects in excess of $2,000. Pursuant to DBRA, and 29 C.F.R. part 1 as amended, the attached Wage Rate Determination Sheets outlined in Exhibit B attached (General Decision Number AZ20230039 09/01/2023) represent the most current Wage Rate Determinations issued by the US Department of Labor and represent the minimum wages to be paid for any labor provided under this contract. It is the sole responsibility of the Parties to ensure compliance with DBRA, including but not limited to verifying the most current wage rate determination(s) for each wage classification. 30.0 BUILD AMERICA, BUY AMERICA PREFERENCE (BABA) The Parties agree, to the greatest extent practicable and consistent with law, to provide a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States (including but not limited to iron, aluminum, steel, cement, and other manufactured products) pursuant to the Build America, Buy America Act (BABA), enacted as part of the Infrastructure Investment and Jobs Act (IIJA). Pub. L. 117-58, 41 U.S.C. § 8301 and in compliance with 2 C.F.R. § 200.322. The requirements of this section must be included in all subawards, contracts, and purchase orders for work performed by the Parties as outlined in Exhibit A. 31.0 RECOGNITION OF COUNTY SUPPORT The City shall give recognition to the County and the funding source for its support when the City publishes materials or releases public information that is paid for in whole or in part with funds received by the City under this MOU. 32.0 NONDISCRIMINATION, EQUAL OPPORTUNITY AND EQUAL ACCESS The City agrees to comply with all provisions and requirements of Arizona Executive Order 2009- 09 including flow down of all provisions and requirements to any contractors or subcontractors. Executive Order 2009-09 supersedes Executive order 99-4 and amends Executive order 75-5 and may be viewed and downloaded at the Arizona State Library Research website: (http://azmemory.azlibrary.gov/cdm/singleitem/collection/execorders/id/680/rec/1) which is hereby incorporated into this MOU as if set forth in full herein. In connection with any service or other activity under this MOU, the City shall not discriminate against any employee, client, or any other individual in any way on the grounds of age, race, creed, color, religion, sex, disability, political affiliation, belief or national origin. The City shall include this clause in all of its Subcontracts. Refer to Paragraph 43.0, (Default and Remedies for Noncompliance). City of Surprise Memorandum of Understanding Page 8 of 22 33.0 DISABILITY REQUIREMENTS The City agrees that any electronic or information technology offered under this MOU shall comply with A.R.S. §§ 41-2531 and -2532 and Section 508 of the Rehabilitation Act of 1973, which requires that employees and members of the public shall have access to and use of information technology that is comparable to the access and use by employees and members of the public who are not individuals with disabilities. 34.0 EQUAL EMPLOYMENT OPPORTUNITY 34.1 The Parties shall not discriminate against any employee or applicant for employment because of race, age, disability, color, religion, sex, sexual identity, gender identity, or national origin. 34.2 The Parties shall take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, age, disability, color, religion, sex sexual identity, gender identity, or national origin. Such action shall include, but is not limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, lay-off or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. 34.3 The Parties will, in all solicitations or advertisements for employees placed by or on behalf of the City, state that it is an Equal Opportunity or Affirmative Action employer. 34.4 The Parties shall post on public display for all employees that it is an Equal Opportunity or Affirmative Action employer. 34.5 The Parties shall and shall cause their respective contractors and subcontractors to comply with: 34.5.1 Title VI and VII of the Civil Rights Act of 1964, as amended (42 U.S.C. §§ 2000a, et seq.); 34.5.2 the Rehabilitation Act of 1973, as amended (29 U.S.C. §§ 701, et seq.). 34.5.3 the Age Discrimination in Employment Act of 1967, as amended (29 U.S.C. §§ 621, et seq.); 34.5.4 the Americans With Disabilities Act of 1990 (42 U.S.C. §§ 12101, et seq.); and 34.5.5 Arizona Executive Order 2009-09, as amended, et seq. which mandates that all persons shall have equal access to employment opportunities. 34.6 The Parties shall include the above listed provisions in every subcontract or purchase order, specifically or by reference. The inclusion of these provisions is binding and a requirement of this MOU. 35.0 UNIFORM ADMINISTRATIVE REQUIREMENTS By entering into this MOU, the Parties agree to comply with all applicable provisions of Title 2, Subtitle A, Chapter II, Part 200—UNIFORM ADMINISTRATIVE REQUIREMENTS, COST PRINCIPLES, AND AUDIT REQUIREMENTS FOR FEDERAL AWARDS contained in Title 2 C.F.R. §§ 200, et seq, and OMB Circulars. 36.0 RETENTION OF RECORDS 36.1 This provision applies to all financial and programmatic records, supporting document, statistical records, and other records of the City that are related to this MOU. 36.2 The City shall retain all records relevant to this MOU for six (6) years after project closeout or until after the resolution of any audit questions which could be more than six (6) years, whichever is longer, and the County, federal and state auditors and any other persons duly authorized shall have full access to, and the right to examine, copy, and make use of any and all of the records. Any such access shall be coordinated with the City, which shall include, without limitation, restricting audits to the normal business hours of the City and being accompanied with City staff while on site. 37.0 ADEQUACY OF RECORDS City of Surprise Memorandum of Understanding Page 9 of 22 If the City’s books, records and other documents related to this MOU are not reasonably sufficient to support and document that allowable services were provided to eligible participants as determined by a court of competent jurisdiction, then the City shall reimburse the County for the services not supported and/or documented. 38.0 IMMIGRATION LAWS AND REGULATIONS 38.1 Federal Immigration and Nationality Act 38.1.1 The City understands and acknowledges the applicability of the Immigration Reform and Control Act of 1986 (“IRCA”). The City agrees to comply with the IRCA in performing under this MOU and to permit the other Party to reasonably inspect personnel records to verify such compliance, to the extent required by law. 38.1.2 By entering into this MOU, the City warrant compliance with the Federal Immigration and Nationality Act (“FINA”) and all other federal immigration laws and regulations related to the immigration status of its employees. The City shall obtain statements from their subcontractors certifying compliance and shall furnish the statements to the County upon request. These warranties shall remain in effect through the term of the MOU. The City and their subcontractors shall also maintain Employment Eligibility Verification forms (“I-9”) as required by the U.S. Department of Labor’s Immigration and Control Act for all employees performing work under the MOU. I-9 forms are available for download at USCIS.GOV. 38.1.3 The County may request verification of compliance for any employee, contractor or subcontractor performing work under the MOU. Should the County suspect or find that the City or any of its contractors or subcontractors are not in compliance, then the County may pursue any and all remedies allowed by law, including, but not limited to: suspension of work, termination of the MOU for default, and suspension or debarment (or both) of the City. All costs necessary to verify compliance are the responsibility of the City or its contractors or subcontractors. 38.2 Arizona Law: The Parties warrant that they are in compliance with A.R.S. § 41-4401 (E- Verify requirements) and further acknowledge that: 38.2.1 The Parties and their respective Vendors, if any, warrant their compliance with all federal immigration laws and regulations that relate to their employees and their compliance with A.R.S. § 23-214; 38.2.2 A breach of a warranty under Subparagraph 38.2.1 shall be deemed a material breach of this MOU and either Party may immediately terminate this MOU without liability; and 38.2.3 The Parties and any respective contracting government entity retain the legal right to inspect the papers and employment records of the other Party or its Vendor’s or Subcontractor’s employees who work on this MOU to ensure that the other Party or Subcontractor or Vendor is complying with the warranty provided under Subparagraph 38.2.1 and that the Parties mutually agrees to make all papers and employment records of those employees available during normal working hours in order to facilitate such an inspection. 39.0 DRUG FREE WORKPLACE ACT The Parties shall comply with the Drug-Free Workplace Act of 1988 (41 U.S.C. §§ 701, et seq.), which requires that grantees of federal funds must certify that they will provide Drug-Free workplaces. This certification is a precondition to receiving a grant or entering into this MOU. 40.0 CERTIFICATION REGARDING DEBARMENT, SUSPENSION, INELIGIBILITY AND VOLUNTARY EXCLUSION 40.1 The undersigned, by signing this MOU, represents that he/she has the authority to bind the City to the terms of this Certification. The City, as the primary participant in accordance with 2 C.F.R. Part 180, certifies to the best of its knowledge and belief that it and its principals: City of Surprise Memorandum of Understanding Page 10 of 22 40.1.1 Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any federal department or agency; 40.1.2 Have not within a 3-year period preceding the Start Date of this MOU, been convicted of or had a civil judgment rendered against them for: (1) the commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (federal, State, or local) transaction or a contract under a public transaction; (2) the violation of any federal or State antitrust statutes; or (3) the commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property 40.1.3 Are not presently indicted or otherwise criminally or civilly charged by a governmental entity (federal, state, or local) with the commission of any of the offenses enumerated in Sub-subparagraph 40.1.2 above; and 40.1.4 Have not, within a three-year period preceding the Start Date of this MOU, had one or more public transactions (federal, state, or local) terminated for cause or default. 40.2 The City agrees to include, without modification, this clause in all lower tier covered transactions (i.e., transactions with Subcontractors) and in all solicitations for lower tier covered transactions related to this MOU. 41.0 EMPLOYEE WHISTLEBLOWER RIGHTS AND REQUIREMENT TO INFORM EMPLOYEES OF WHISTLEBLOWER RIGHTS: 41.1 The Parties agrees that this MOU and their employees working on this MOU will be subject to the whistleblower rights and remedies in the federal pilot program established at 41 U.S.C. § 4712 by Section 828 of the National Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112–239) and Section 3.908 of the Federal Acquisition Regulation; 41.2 The City shall inform its employees in writing, in the predominant language of the workforce, of employee whistleblower rights and protections under 41 U.S.C. § 4712, as described in Section 3.908 of the Federal Acquisition Regulation. Documentation of such employee notification must be kept on file by the City and copies provided to County upon request; and 41.3 The Parties shall insert the substance of this clause, including this Paragraph 40.0, in all subcontracts over the agreed upon simplified acquisition threshold ($250,000 as of June 2021). 42.0 SURVIVAL The indemnification, hold harmless, defense, and non-liability provisions of this MOU shall have full force and effect notwithstanding any other provisions in this MOU and shall survive the termination or expiration of this MOU. 43.0 DEFAULT AND REMEDIES FOR NONCOMPLIANCE 43.1 Notwithstanding anything to the contrary, this Section shall not be deleted or superseded by any other provision of this MOU. 43.2 This MOU may be immediately terminated by a Party if the other Party defaults by failing to perform any objective or breaches any obligation under this MOU, or any event occurs that jeopardizes the other Party’s ability to perform any of its obligations under this MOU. 43.3 Failure to comply with the requirements of this MOU and all the applicable federal, state, or local laws, rules, and regulations may result in suspension or termination of this MOU, the return of unexpended funds (less just compensation for work satisfactorily completed that, to date, had not been reimbursed), the reimbursement of funds improperly expended, or the recovery of funds improperly acquired. Noncompliance includes, but is not limited to: 43.3.1 Non-performance of any obligations required by this MOU. City of Surprise Memorandum of Understanding Page 11 of 22 43.3.2 Noncompliance with any applicable federal, state, or local laws, rules, or regulations. 43.3.3 Noncompliance with applicable financial record requirements, accounting principles, or standards established by OMB circulars and 2 C.F.R. §§ 200 et seq. 43.3.4 Noncompliance with recordkeeping, record retention, or reporting requirements. 43.4 Notwithstanding the suspension or termination of this MOU, or the final determination of the proper disposition of funds, the Parties, without intent to limit or with restrictions, be subject to the following: 43.4.1 Acknowledge that suspension or termination of this MOU does not affect or terminate any rights against any Party at the time of suspension or termination, or that may accrue later. Nothing herein shall be construed to limit or terminate any right or remedy available under this MOU. 43.4.2 Waiver of a breach or default of any term, covenant, or condition of this MOU or any federal, state, or local law, rule, or regulation shall not operate as a waiver of any subsequent breach of the same or any other term, covenant, condition, law, rule, or regulation. 43.5 Each Party shall, upon notice or with knowledge obtained by itself or others, take any and all proactive actions necessary, and provide any and all applicable remedies to address and correct any act by itself, and any and/or all of its agents, representatives, officers, officials, directors, employees, volunteers, successors, assigns, or Subcontractors that resulted in any wrongdoing (intentional or unintentional); misuse or misappropriation of funds; the incorrect or improper disposition of funds; any violation of any federal, state, or local law, rule, or regulation; or the breach of any certification or warranty provided in this MOU. 44.0 ADMINISTRATIVE REQUIREMENTS 44.1 Accounting Standards – The City agrees to comply with this MOU and to adhere to the accounting principles and procedures required to utilize adequate internal controls and maintain necessary source documentation for all costs incurred, as well as any applicable federal laws and regulations. The City further agrees to maintain an adequate accounting system that provides for appropriate grant accounting (including calculation of program income). 44.2 Documentation and Record Keeping - The City agrees to comply with this MOU and the following record keeping requirements: 44.2.1 Records to be maintained – The City shall maintain all financial records as required by 2 C.F.R. § 200, and OMB Circulars; 44.2.2 Property Records - The City shall maintain property and equipment inventory records that clearly identify properties and equipment purchased, improved, or sold. Properties and equipment retained shall continue to meet eligibility criteria and shall conform to the use of property and equipment. 45.0 UYGHUR FORCED LABOR PREVENTION ACT (UFLPA) 45.1 The Parties mutually warrant and certify that they do not currently, and agree for the duration of this MOU that they will not use: 45.1.1 The forced labor of ethnic Uyghurs in the People’s Republic of China. 45.1.2 Any goods or services produced by the forced labor of ethnic Uyghurs in the People’s Republic of China. 45.1.3 Any contractors, subcontractors or suppliers that use the forced labor or any goods or services produced by the forced labor of ethnic Uyghurs in the People’s Republic of China. 45.2 If either of the Parties become aware during the term of this MOU that they are not in compliance with this paragraph, the Party(ies) shall notify the other within five business days after becoming aware of the noncompliance. Failure of either Party to provide a City of Surprise Memorandum of Understanding Page 12 of 22 written certification that the other Party has remedied the noncompliance within one hundred eighty (180) days after notifying the public entity of its noncompliance, this MOU shall terminate unless the Term of this MOU shall end prior to said one hundred eighty (180) day period. 46.0 FORCE MAJEURE 46.1 Neither Party shall be liable for failure of performance, nor incur any liability to the other Party on account of any loss or damage resulting from any delay or failure to perform all or any part of this MOU if such delay or failure is caused by events, occurrences, or causes beyond the reasonable control and without negligence of the Parties. Such events, occurrences, or causes will include Acts of God/Nature (including fire, flood, earthquake, storm, hurricane, or other natural disaster), war, invasion, act of foreign enemies, hostilities (whether war is declared or not), civil war, riots, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalization, government sanction, lockout, blockage, embargo, labor dispute, strike, pandemic, and interruption or failure of electricity or telecommunication service. 46.2 Each Party, as applicable, shall give the other Party notice of its inability to perform and particulars in reasonable detail of the cause of the inability. Each party must use best efforts to remedy the situation and remove, as soon as practicable, the cause of its inability to perform or comply. 46.3 The Party asserting Force Majeure as a cause for non-performance shall have the burden of proving that reasonable steps were taken to minimize delay or damages caused by foreseeable events, all non-excused obligations were substantially fulfilled, and the other Party was timely notified of the likelihood or actual occurrence that would justify such an assertion, so that other prudent precautions could be contemplated. 47.0 SYSTEM FOR AWARD MANAGEMENT The City shall have a valid Unique Entity Identifier (UEI) number and an active profile in the federal System for Award Management, or SAM.gov. Documentation of the UEI Number must be included in all project files. The City must remain current with their registration throughout the term of the MOU per 2 C.F.R. § 25.300; Appendix A to 2 C.F.R. § 25. 48.0 PROVISIONS REQUIRED BY LAW Each and every provision of law and any clause required by law to be in this MOU will be read and enforced as though it were included herein and, if through mistake or otherwise any such provision is not inserted, or is not correctly inserted, then upon the application of either party, this MOU will promptly be physically amended to make such insertion or correction. 49.0 ADDITIONAL CERTIFICATIONS AND WARRANTIES 49.1 The City understands that it has certain obligations under this MOU that have been passed through to the County from Office of Head Start (OHS) with respect to this MOU. The City shall hold the County harmless and indemnify it against any damage or other liability which County may incur with respect to OHS as a result of any failure on the part of City to comply with the requirements of any such obligation. 49.2 The Parties and their contractors and subcontractors shall be obligated to the requirements of this MOU including: 49.2.1 The Labor Standards Regulations set forth in 24 C.F.R., Part 570.603; the Davis- Bacon Act as amended (40 U.S.C. §3141 et seq) (see final rule Memorandum #244 pertaining to Davis-Bacon and Related Acts regulations here https://www.dol.gov/sites/dolgov/files/WHD/AAM/AAM244.pdf); 49.2.2 the provisions of Contract Work Hours and Safety Standards Act (40 U.S.C. 327 et seq). City of Surprise Memorandum of Understanding Page 13 of 22 49.2.3 the Copeland “Anti-Kickback” Act (18 U.S.C. 874, et seq; 40 U.S.C. § 276a-276a- 5; 40 USC § 327 and 40 USC § 276c; and 49.2.4 implementing regulations of the U.S. Department of Labor at 29 C.F.R. Parts 1, 3, 5, 6 and 7 and all other applicable Federal, state and local laws and regulations pertaining to labor standards. The Parties shall maintain documentation that demonstrates compliance with hour and wage requirements of this part. Such documentation shall be made available upon request by each Party. 49.3 This MOU constitutes the entire agreement between the Parties with respect to the subject matter hereof, and all prior agreements, representations, statements and undertakings are hereby expressly cancelled. 49.4 The section headings and subheadings contained in this MOU are included for convenience only and shall not limit or otherwise affect the terms of this MOU [Signatures contained in the following page] City of Surprise Memorandum of Understanding Page 14 of 22 IN WITNESS THEREOF, The Parties have signed this MOU: APPROVED BY: CITY OF SURPRISE APPROVED BY: MARICOPA COUNTY ___________________________________ City Manager Date ____________________________________ Thomas Galvin, Chairman Date Board of Supervisors Attested To: ___________________________________ City Clerk Date Attested To: ____________________________________ Juanita Garza, Clerk of the Board Date IN ACCORDANCE WITH A.R.S. §§ 9-240, 11-952, THIS MOU HAS BEEN REVIEWED BY THE UNDERSIGNED ATTORNEY WHO HAS DETERMINED IT IS PROPER IN FORM AND WITHIN THE POWERS AND AUTHORITY GRANTED TO THE CITY OF SURPRISE UNDER THE LAWS OF THE STATE OF ARIZONA. APPROVED AS TO FORM: BY: ________________________________ Attorney for the City Date IN ACCORDANCE WITH A.R.S. §§ 11-201, 11-251, AND 11-952, THIS MOU HAS BEEN REVIEWED BY THE UNDERSIGNED ATTORNEY WHO HAS DETERMINED IT IS PROPER IN FORM AND WITHIN THE POWERS AND AUTHORITY GRANTED TO MARICOPA COUNTY UNDER THE LAWS OF THE STATE OF ARIZONA. APPROVED AS TO FORM: BY: _________________________________ Deputy County Attorney Date City of Surprise Memorandum of Understanding Page 15 of 22 EXHIBIT A – SCOPE OF WORK 1.0 Scope of Work. City of Surprise will be constructing a new, approx. 1,300 sf outdoor space to be dedicated to the Maricopa County Human Services Department Early Education Division (“EED”) for children aged 0-5 which will be a developmentally appropriate playground area. The area and depiction of the Scope of Work is detailed on Exhibit “XX” attached to this MOU and incorporated herein by reference. Maricopa County intends to fully outfit this playground with all new developmentally appropriate amenities in compliance with federal, state, County and local requirements. Working cooperatively with the City of Surprise, Maricopa County, administered by its Facilities Management Division (FMD) will be responsible for the design, procurement, funding, management, payment, and oversight of the facility improvement Project made within this allotted space, which may include but not be limited to: Playground(s) and developmentally -appropriate climbing equipment, soft ground surface(s), natural elements like plants and trees, designated areas for water and sand play, open areas for running and smaller more contained spaces for focused play. City of Surprise agrees to furnish the space, complete with all shown supportive construction, including the perimeter fence, entry/exit gate(s), drinking fountain(s), and exterior building wall and overhead canopy, as identified in Exhibit XX, for the County or their subcontractor(s) to install their scope of work. The City’s costs associated with the construction of any and all improvements required by this document are limited to those shown in Exhibit XX, including, and expressly limited to, those costs incurred in the construction of the City’s portion of the building, fencing, and its surrounding areas. The County’s obligations are limited to only the facility improvements shown within the identified area, as described in this Exhibit A. 2.0 Commencement and Completion. County, through a 3rd party, shall cause construction of the Improvements to be prosecuted with reasonable diligence so that the Improvements are completed substantially in accordance with the Final Plans and expected Completion Date, free and clear of all liens or claims for materials, labor, services, or other items furnished in the construction of the Improvements, and in full compliance with all building, zoning and other applicable local, state and federal ordinances and regulations. 3.0 Right of City to Inspect. The City and any other agent or representative of the City shall have the right to inspect the construction of the Improvements at any time. This provision shall not impose on the City any obligation to inspect or to correct any defects discovered or to notify any person with respect thereto. 4.0 Exterior Playground Project Overview: While exact details of what is to be installed in the referenced area will be determined jointly during the design-phase with the County’s selected vendor, the intent of this MOU is that the County will work with the selected vendor to design and install an outdoor developmentally appropriate playground and feature(s) consistent with County’s current Head Start and Early Head Start Program and my include but not necessarily be limited to: 1) Site Preparation 2) Footings / Foundations City of Surprise Memorandum of Understanding Page 16 of 22 3) Positive Drainage away from building 4) Playground(s), Structure(s), Play Equipment (with or without shade – considering height limitations imposed by adjacent City Structure) 5) Poured-in-Place or other safe play surfacing including required subbase 6) Artificial Turf and/or required subbase 7) Concrete and/or other exterior, walkable surface(s) for complete play area City of Surprise Memorandum of Understanding Page 17 of 22 EHIBIT B PROJECT WAGE DETERMINATION SHEETS City of Surprise Memorandum of Understanding Page 18 of 22 City of Surprise Memorandum of Understanding Page 19 of 22 City of Surprise Memorandum of Understanding Page 20 of 22 City of Surprise Memorandum of Understanding Page 21 of 22 City of Surprise Memorandum of Understanding Page 22 of 22 Exhibit XX