8-04. FR2X Section 2 Utah Standard Terms and Conditions.pdf

SECTION 2: STATE OF UTAH STANDARD TERMS AND

CONDITIONS

JULY 1, 2025

Utah Department of Transportation 20253 / Project No. S-ST99(835)

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SECTION 2: STATE OF UTAH STANDARD TERMS AND CONDITIONS

1. DEFINITIONS: The following terms shall have the meanings set forth below for purposes of this State of Utah Standard Terms and Conditions, and in addition the defined terms in GC 1.1 apply:

a. “Confidential Information” means information that is deemed as confidential under applicable state and federal laws, and personal data as defined in Utah Code 63A-19-101.

The Department reserves the right to identify, during and after this Contract, additional reasonable types of categories of information that must be kept confidential under federal and state laws.

b. “Custom Deliverable” means the Work Product that Contractor is required to deliver to the Department under the Contract.

c. “State of Utah” means the State of Utah, in its entirety, including its institutions, agencies, departments, divisions, authorities, instrumentalities, boards, commissions, elected or appointed officers, employees, agents, and authorized volunteers.

d. “Work Product” means the part of the Work that consists of every invention, modification, discovery, design, development, customization, configuration, improvement, process, software program, work of authorship, documentation, formula, datum, technique, know how, secret, or intellectual property right whatsoever or any interest therein (whether patentable or not patentable or registerable under copyright or similar statutes or subject to analogous protection) that is specifically made, conceived, discovered, or reduced to practice by Contractor or Contractor’s Subcontractors (either alone or with others) pursuant to the Contract. Work Product shall be considered a work made for hire under federal, state, and local laws; and all interest and title shall be transferred to and owned by the Department. Notwithstanding anything in the immediately preceding sentence to the contrary, Work Product does not include any Department or UTA intellectual property, Contractor’s intellectual property (that it owned or licensed prior to this Contract) or the intellectual property of a third party.

2. GOVERNING LAW AND VENUE: This Contract shall be governed by the laws, rules, and regulations of the State of Utah without reference to choice or conflict of law provisions. Any action or proceeding arising from this Contract shall be brought in a court of competent jurisdiction in the State of Utah. Venue shall be in a court in Salt Lake County, Utah.

3. LAWS AND REGULATIONS: At all times during this Contract, Contractor and all Work delivered and/or performed under this Contract will comply with all applicable federal and state constitutions, laws, rules, codes, orders, and regulations, policies, procedures, and directives, including applicable licensure and certification requirements, and including applicable grant assurances and other agreements between the Department and a federal agency, as any of the same may be amended from time to time. If this Contract is funded by federal funds, either in whole or in part, then any federal regulation related to the federal funding, including CFR Appendix II to Part 200, will take priority over these State of Utah Standard Terms and Conditions. The Contractor’s failure to comply with any of the same shall constitute a material breach of the Contract. Prior to commencing any Work requiring a permit or similar authorization, the Contractor shall secure and pay for all necessary licenses, fees, inspections, permits and similar authorizations from governmental authorities required to fulfill the Contract requirements and the Contractor’s obligations.

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4. RECORDS ADMINISTRATION: Contractor shall maintain or supervise the maintenance of all records necessary to properly account for Contractor’s performance and the payments made by the Department to Contractor under this Contract, including but not limited to time sheets and other cost documentation related to the performance of labor, as well as subcontracts, purchase orders, other Contract-related documents, invoices, receipts or other documentation supporting non-labor costs. These records shall be retained by Contractor for at least six (6) years after final payment, or until all audits initiated within the six (6) years have been completed, whichever is later. Contractor agrees to allow, at no additional cost, the State of Utah, federal auditors, the Department’s or UTA’s staff, or their designees, access to all such records during normal business hours and to allow interviews of any employees or others who might reasonably have information related to such records. Further, Contractor agrees to include this right to audit records and interview staff in any subcontract related to performance of this Contract.

5. PERMITS: If necessary Contractor shall procure and pay for all permits, licenses, and approvals necessary for the execution of this Contract.

6. CERTIFY REGISTRATION AND USE OF EMPLOYMENT "STATUS VERIFICATION

SYSTEM”: The Status Verification System, also referred to as “E-verify”, only applies to contracts issued through a Request for Proposal process, to sole sources that are included within a Request for Proposal, and when Contractor employs any personnel in Utah.

a. Contractor certifies as to its own entity, under penalty of perjury, that Contractor has registered and is participating in the Status Verification System to verify the work eligibility status of Contractor’s new employees that are employed in the State of Utah in accordance with applicable immigration laws.

b. Contractor shall require that each of its Subcontractors certify by affidavit, as to their own entity, under penalty of perjury, that each Subcontractor has registered and is participating in the Status Verification System to verify the work eligibility status of Subcontractor’s new employees that are employed in the State of Utah in accordance with applicable immigration laws.

c. Contractor’s failure to comply with this section will be considered a material breach of this Contract.

7. CONFLICT OF INTEREST: Contractor represents that none of its officers or employees are officers or employees of the Department, of UTA, or the State of Utah, unless disclosure has been made to the State Entity. The Contractor further agrees to comply with GC 9.13 Conflicts of Interest; Gratuities.

8. INDEPENDENT CONTRACTOR: Contractor and Subcontractors, in the performance of this Contract, shall act in an independent capacity and not as officers or employees, partners, or agents of the Department, UTA, or the State of Utah.

9. CONTRACTOR RESPONSIBILITY: Contractor is solely responsible for fulfilling the Contract, with responsibility for all Work delivered and/or performed as stated in this Contract.

Contractor shall be the sole point of contact regarding all contractual matters. Contractor must incorporate Contractor’s responsibilities under this Contract into every subcontract with its Subcontractors that will provide the Work to the Department as provided under this Contract.

Moreover, Contractor is responsible for its Subcontractors and Suppliers compliance under this Contract.

10. INDEMNITY: Contractor shall be fully liable for the actions of its agents, employees, officers, partners, Subcontractors, and Suppliers and shall fully indemnify, defend, and save harmless the Department, UTA, and the State of Utah, and their officers, trustees, agents, and employees, (hereinafter collectively referred to as “Indemnitees”) from all claims, losses, suits, actions, damages, and costs of every name and description arising out of Contractor’s performance of this

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Contract to the extent caused by any intentional wrongful act or negligence of Contractor, its agents, employees, officers, partners, Subcontractors, or Suppliers without limitation; provided, however, that the Contractor shall not indemnify for that portion of any claim, loss, or damage arising hereunder due to the sole fault of the Department. The parties agree that if there are any limitations of the Contractor’s liability, including a limitation of liability clause for anyone for whom the Contractor is responsible, such limitations of liability will not apply to injuries to persons, including death, or to damages to property.

11. EMPLOYMENT PRACTICES: Contractor agrees to abide by the following federal and state employment laws, including: (i) Title VI and VII of the Civil Rights Act of 1964 (42 U.S.C.

2000e), which prohibits discrimination against any employee or applicant for employment or any applicant or recipient of services on the basis of race, religion, color, or national origin; (ii) 45 CFR 90, which prohibits discrimination on the basis of age; (iii) Section 504 of the Rehabilitation Act of 1973, or the Americans with Disabilities Act of 1990, which prohibits discrimination on the basis of disabilities; and (iv) Utah's Executive Order 2019-1, dated February 5, 2019, which prohibits unlawful harassment in the workplace. Contractor further agrees to abide by any other laws, regulations, or orders that prohibit the discrimination of any kind by any of Contractor’s employees.

12. AMENDMENTS: This Contract may only be amended by the mutual written agreement of the parties that is signed by an authorized representative of each party, provided that the amendment is within the scope of work of this Contract and is within the scope/purpose of the original solicitation for which this Contract was derived. The amendment will be attached and made part of this Contract. Automatic renewals will not apply to this Contract, even if listed elsewhere in this Contract.

13. DEBARMENT: Contractor certifies that it is not presently nor has ever been debarred, suspended, proposed for debarment, or declared ineligible by any governmental department or agency, whether international, national, state, or local. Contractor must notify the Department within thirty (30) days if debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in any contract by any governmental entity during this Contract.

14. TERMINATION: See GC 9.6.

15. NONAPPROPRIATION OF FUNDS, REDUCTION OF FUNDS, OR CHANGES IN LAW:

See GC 9.6.

16. RESERVED.

17. In addition to the warranty obligations set forth elsewhere in this Contract, any warranties provided by others, and any applicable statutory warranties, for the deliverables under the Contract, the following applies. The Contractor warrants, represents and conveys full ownership and clear title, free of all liens and encumbrances, to the Work delivered to the Department under this Contract. Contractor warrants for a period of one (1) year that: (i) the Work will perform according to all specific claims that Contractor made in its proposal and all performance and other requirements in the Contract; (ii) the Work is suitable for the ordinary purposes for which such Work is used; (iii) the Work is suitable for any special purposes identified in the Contractor’s proposal and in the Contract; (iv) the Work is designed and manufactured in a commercially reasonable manner in compliance with the Contract; (v) the Work is manufactured and in all other respects completed so as to create no harm to persons or property; and (vi) the Work is free of defects. Unless otherwise specified, all Work provided shall be new and unused of the latest model or design.

Remedies available to the Department under this section include, but are not limited to, the following: Contractor will repair or replace Work at no charge to the Department within ten (10)

Contract Section 2: State of Utah Standard Terms and Conditions Page | 5 days of any written notification informing Contractor of the Work not performing as required under this Contract. If the repaired and/or replaced Work proves to be inadequate, or fails its essential purpose, Contractor will refund the full amount of any payments that have been made.

Nothing in this warranty will be construed to limit any rights or remedies the Department may otherwise have under this Contract.

18. CONTRACTOR’S INSURANCE RESPONSIBILITY. See SP 5.2.

19. RESERVED.

20. PUBLIC INFORMATION: See GC 9.12.

21. DELIVERY: See SP 6.3.

22. ACCEPTANCE AND REJECTION: See SP 6.

23. INVOICING: See SP 4.

24. PAYMENT: See SP 4.

25. INDEMNIFICATION RELATING TO INTELLECTUAL PROPERTY: See GC 6.

26. OWNERSHIP IN INTELLECTUAL PROPERTY: The Department and Contractor each recognizes that each has no right, title, or interest, proprietary or otherwise, in the intellectual property owned or licensed by the other, unless otherwise agreed upon by the parties in writing.

All Work Product, documents, records, programs, data, articles, memoranda, and other materials not developed or licensed by Contractor prior to the execution of this Contract, but specifically manufactured under this Contract shall be considered work made for hire, and Contractor shall transfer any ownership claim to the Department.

27. OWNERSHIP IN CUSTOM DELIVERABLES: In the event that Contractor provides Custom Deliverables to the Department, pursuant to this Contract, Contractor grants the ownership in Custom Deliverables, which have been developed and delivered by Contractor exclusively for the Department and are specifically within the framework of fulfilling Contractor’s contractual obligations under this Contract. Custom Deliverables shall be deemed work made for hire, such that all intellectual property rights, title and interest in the Custom Deliverables shall pass to the Department, and to the extent that the Custom Deliverables are not recognized as work made for hire, Contractor hereby assigns to the Department any and all copyrights and all other intellectual property rights in and to the Custom Deliverables, subject to the following:

a. Contractor has received payment for the Custom Deliverables,

b. Each party will retain all rights to patents, utility models, mask works, copyrights, trademarks, trade secrets, and any other form of protection afforded by law to inventions, models, designs, technical information, and applications (“Intellectual Property Rights”) that it owned or controlled prior to the effective date of this contract or that it develops or acquires from activities independent of the services performed under this contract (“Background IP”), and

c. Contractor will retain all right, title, and interest in and to all Intellectual Property Rights in or related to the services, or tangible components thereof, including but not limited to

(i) all know-how, intellectual property, methodologies, processes, technologies, algorithms, software, or development tools used in performing the services (collectively, the “Utilities”), and (ii) such ideas, concepts, know-how, processes and reusable reports, designs, charts, plans, specifications, documentation, forms, templates, or output which are supplied or otherwise used by or on behalf of Contractor in the course of performing the services or creating the Custom Deliverables, other than portions that specifically incorporate proprietary or Confidential Information or Custom Deliverables of the Department (collectively, the “Residual IP”), even if embedded in the Custom Deliverables, and

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d. Custom Deliverables, not including Contractor’s Intellectual Property Rights, Background IP, and Residual IP, may not be marketed or distributed without written approval by the Department.

Contractor agrees to grant to the Department a perpetual, irrevocable, royalty-free license to use Contractor’s Background IP, Utilities, and Residual IP, as defined above, solely for the Department and the State of Utah to use the Custom Deliverables. The Department reserves a royalty-free, nonexclusive, and irrevocable license to reproduce, publish, or otherwise use and to authorize others to use, for the Department’s and the State of Utah’s internal purposes, such Custom Deliverables. For the Work delivered that consist of Contractor’s scripts and code and are not considered Custom Deliverables or Work Product, for any reason whatsoever, Contractor grants the Department a non-exclusive, non-transferable, irrevocable, perpetual right to use, copy, and create derivative works from such, without the right to sublicense, for the Department’s and the State of Utah’s internal business operation under this Contract. The Department and the State of Utah may not participate in the transfer or sale of, create derivative works from, or in any way exploit Contractor’s Intellectual Property Rights, in whole or in part.

28. ASSIGNMENT: See GC 9.21.

29. REMEDIES: See GC 9.6.2.

30. FORCE MAJEURE: See GC 9.5.2 and GC 9.6.1.

31. CONFIDENTIALITY: If Contractor has access to or processes Confidential Information of the

Department or of UDOT, Contractor shall: (i) advise its agents, officers, employees, partners, Subcontractors and Suppliers of the obligations set forth in this Contract; (ii) keep all Confidential Information strictly confidential; and (iii) comply with any requirements contained in the Contract or appliable laws and policies regarding permitted uses and disclosures of personal data, measures designed to safeguard personal data, and the destruction of personal data.

Contractor will promptly notify the Department of any potential or actual misuse or misappropriation of Confidential Information, including any data breaches, in accordance with UCA 63A-19 Government Data Privacy Act. In accordance with UCA 63A-19, Contractor must comply with all the same requirements regarding personal data as the State.

Contractor shall be responsible for any breach of this duty of confidentiality, including any required remedies and/or notifications under applicable law. Contractor shall indemnify, hold harmless, and defend the Department and the State of Utah, including anyone for whom the Department or the State of Utah is liable, from claims related to a breach of this duty of confidentiality, including any notification requirements, by Contractor or anyone for whom the Contractor is liable.

Upon termination or expiration of this Contract, Contractor will return all copies of Confidential Information to the Department or certify, in writing, that the Confidential Information has been destroyed. This duty of confidentiality shall be ongoing and survive the termination or expiration of this Contract.

32. PUBLICITY: Contractor shall submit to the Department for written approval all advertising and publicity matters relating to this Contract. It is within the Department’s sole discretion whether to provide approval, which approval must be in writing.

33. WORK ON STATE OF UTAH OR ELIGIBLE USER PREMISES: Contractor shall ensure that personnel, Subcontractors, and Suppliers working on State of Utah, Department, or UTA premises shall: (i) abide by all of the rules, regulations, and policies of the premises; (ii) remain in authorized areas; (iii) follow all instructions; and (iv) be subject to a background check, prior to entering the premises. The State of Utah, Department, or UTA may remove any individual for a violation hereunder.

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34. CONTRACT INFORMATION: During the duration of this Contract the Department is required to make available contact information of Contractor to the State of Utah Department of Workforce Services. The State of Utah Department of Workforce Services may contact Contractor during the duration of this Contract to inquire about Contractor’s job vacancies within the State of Utah.

35. WAIVER: A waiver of any right, power, or privilege shall not be construed as a waiver of any subsequent right, power, or privilege. No part of this Contract may be waived, whether by a party’s failure to insist on strict performance of this Contract or otherwise, except in a writing signed by an authorized representative of the party waiving.

36. SUSPENSION OF WORK: Should circumstances arise which would cause the Department to suspend Contractor’s responsibilities under this Contract, but not terminate this Contract, this will be done by formal written notice pursuant to the terms of this Contract. Contractor’s responsibilities may be reinstated upon advance formal written notice from the Department.

37. CHANGES IN SCOPE: Any changes in the scope of the Work to be performed under this Contract shall be in the form of a Change Order or other written amendment to this Contract, mutually agreed to and signed by both parties, specifying any such changes, fee adjustments, any adjustment in time of performance, or any other significant factors arising from the changes in the scope of the Work, as further provided in the Contract Documents.

38. PROCUREMENT ETHICS: Contractor understands that a person who is interested in any way in the sale of any Work to the State of Utah is violating the law if the person gives or offers to give any compensation, gratuity, contribution, loan, reward, or any promise thereof to any person acting as a procurement officer on behalf of the State of Utah, or to any person in any official capacity who participates in the procurement of such Work, whether it is given for their own use or for the use or benefit of any other person or organization. Additional requirements are set forth in the Contract Documents.

39. ATTORNEY’S FEES: In the event of any judicial action to enforce rights under this Contract, the prevailing party shall be entitled its costs and expenses, including reasonable attorney’s fees incurred in connection with such action.

40. TRAVEL COSTS: If travel expenses are permitted by the Contract, then all travel costs associated with the delivery of Work under this Contract will be paid according to the rules and per diem rates found in the Utah Administrative Code R25-7. Invoices containing travel costs outside of these rates will be returned to Contractor for correction.

41. DISPUTE RESOLUTION: See GC 9.10.3

42. LIMITATIONS: Any provision attempting to limit the liability of Contractor or limit the rights of the Department or the State of Utah must be in writing and attached to this Contract or it is rendered null and void.

43. SURVIVAL OF TERMS: Termination or expiration of this Contract shall not extinguish or prejudice the Department’s right to enforce this Contract with respect to any default of this Contract or defect in the Work that has not been cured, or of any of the following clauses, including: Governing Law and Venue, Laws and Regulations, Records Administration, Remedies, Dispute Resolution, Indemnity, Indemnification Relating to Intellectual Property, all provisions concerning warranties, all provisions concerning data rights and intellectual property rights, all provisions concerning audit rights, all provisions concerning confidentiality, Contractor Safety Training, Parts Availability Guarantee, all provisions concerning assignments, all provisions concerning options, and any other provision that would require enforcement or action after Final Completion.

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44. SEVERABILITY: The invalidity or unenforceability of any provision, term, or condition of this Contract shall not affect the validity or enforceability of any other provision, term, or condition of this Contract, which shall remain in full force and effect.

45. ERRORS AND OMISSIONS: Contractor shall not take advantage of any errors and/or omissions in this Contract. The Contractor must promptly notify the Department of any errors and/or omissions that are discovered.

46. ENTIRE AGREEMENT: This Contract constitutes the entire agreement between the parties and supersedes any and all other prior and contemporaneous agreements and understandings between the parties, whether oral or written.

47. ANTI-BOYCOTT ACTIONS: In accordance with Utah Code 63G-27 et seq., Contractor certifies that it is not currently engaged in any “economic boycott” nor a “boycott of the State of Israel” as those terms are defined in Section 63G-27-102. Contractor further certifies that it has read and understands 63G-27 et. seq., that it will not engage in any such boycott action during the term of this Contract, and that if it does, it shall promptly notify the Department in writing.

48. TIME IS OF THE ESSENCE: The Work shall be completed by any applicable deadline stated in this Contract. For all Work, time is of the essence. Contractor shall be liable for all reasonable damages to the Department, the State of Utah, and anyone for whom the State of Utah may be liable as a result of Contractor’s failure to timely perform the Work required under this Contract.

49. PERFORMANCE EVALUATION: The Department may conduct a performance evaluation of Contractor’s Work, including Contractor’s Subcontractors. Results of any evaluation may be made available to Contractor upon request.

50. STANDARD OF CARE: The Work of Contractor and its Subcontractors shall be performed in accordance with the standard of care exercised by licensed members of their respective professions having regular experience providing similar Work which similarities include the type, magnitude, and complexity of the Work that is the subject of this Contract. Contractor shall be liable to the Department and the State of Utah for claims, liabilities, additional burdens, penalties, damages, or third-party claims (e.g., another Contractor’s claim against the State of Utah), to the extent caused by wrongful acts, errors, or omissions that do not meet this standard of care and any higher standards identified in the Contract.

51. REVIEWS: The Department reserves the right to perform plan checks, plan reviews, other reviews, and/or comment upon the Work of Contractor. Such reviews do not waive the requirement of Contractor to meet all of the terms and conditions of this Contract.

52. RESTRICTED FOREIGN ENTITIES AND FORCED LABOR: In accordance with Utah law, Contractors contracting with the State certify that they are not providing a “forced labor product” as defined in Utah Code 63G-6a-121. If the Contractor is providing technology or technology services, networks, or systems, the Contractor certifies that the aforementioned does not come from a “restricted foreign entity,” as also defined in UCA 63G-6a-121.

53. FURTHER ASSURANCES: The parties agree to undertake and perform all further acts that are reasonably necessary (except when expressly prohibited by law) to carry out the intent and purpose of the Agreement and to assist UDOT with maintaining compliance with the legal requirements applicable to UDOT after receiving a written notice that explains the need for such action.

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54. DEPARTMENT ACTIONS: The Department’s consent, review, acceptance, approval, or other action or inaction relating to any conditions, inspections, plans, specifications, or other work arising out of this Contract is for purposes of administering this Contract only, and it does not constitute an assumption by the Department of any responsibility or liability for the same; it does not relieve the other party of any duties (including but not limited to duties to ensure compliance with applicable standards); and it does not constitute a waiver by the Department of the other party’s obligation to comply with applicable standards. Any consent, review, acceptance, approval or other action or inaction must be provided by the Department’s authorized employee or representative.

55. MISCELLANEOUS: This Contract does not create any power of agency, joint venture, partnership, or other relationship among the parties. ALL PARTIES KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO A JURY TRIAL. This Contract shall not be construed against a drafter. This Contract (or, if any part hereof is invalidated by law, this Contract’s remaining provisions) shall be construed to enforce its terms to the fullest extent allowed under applicable law to give effect to the intent of the parties. All remedies under this Contract are cumulative and nonexclusive. This Contract may be signed in counterparts and signed electronically.

Section 2 : STATE OF UTAH STANDARD TERMS AND CONDITIONS