ADOA_Building_Services_Uniform_T___C_Invitation_for_Bid.pdf

Uniform Terms and Conditions

Invitation for Bid Table of Contents Page 1 of 5

A v a i l a b l e o n l i n e a t :

a p p s t a t e . a z . g o v

Uniform Terms and General Conditions

TABLE OF CONTENTS:

1) ...... DEFINITION OF TERMS

1.1. Acceptance

1.2. Additional Work

1.3. Agency

1.4. Agency Designated Representative

1.5. Allowance

1.6. Application for Progress Payment

1.7. Application for Final Payment

1.8. Arizona Procurement Code; A.R.S., A.A.C

1.9. Arizona TPT

1.10. As-builts

1.11. Attachment

1.12. Basic Work

1.13. Bidding Documents

1.14. Building Work

1.15. Change Order

1.16. Close Out Documents

1.17. Conditional Waiver of Lien

1.18. Construction

1.19. Construction Contract

1.20. Construction Contractor

1.21. Construction Documents

1.22. Contingency

1.23. Contract

1.24. Contract Amendment

1.25. Contract Cost

1.26. Contract Terms and Conditions

1.27. Contractor

1.28. Contractor Indemnitor

1.29. Cost

1.30. Day

1.31. Design Change Notice

1.32. Design Professional

1.33. Design Professional Services

1.34. Design Requirements

1.35. Drawings

1.36. Estimated Project Construction Cost

1.37. Excusable Delay

1.38. Exhibit

1.39. Field Order Directive

1.40. Final Completion

1.41. Final Completion Certificate

1.42. General Conditions of Contractor

1.43. Gratuity

1.44. Hazardous Waste; Release

1.45. Hazardous Substance

1.46. Hazardous Waste

1.47. Indemnified Basic Claims

1.48. Instructions to Offerors

1.49. Materials

1.50. Negotiation

1.51. Notice to Cure

1.52. Notice to Proceed

1.53. Offer; Best and Final Offer (BAFO)

1.54. Payment Bond

1.55. Performance Bond

1.56. Person

1.57. Preconstruction Services

https://appstate.az.gov/

Table of Contents Page 2 of 5

1.58. Procurement Officer

1.59. eProcurement System (APP)

1.60. Product Data

1.61. Progress Payment Certificate

1.62. Project

1.63. Proposed Change Order

1.64. Punch List

1.65. Record Documents

1.66. Request for Information

1.67. Reimbursable Expenses

1.68. Samples

1.69. Schedule

1.70. Schedule of Values

1.71. Scope of Work

1.72. Secure Locations

1.73. Services

1.74. Shop Drawings

1.75. Site

1.76. Solicitation; Solicitation Documents

1.77. Special Terms and Conditions

1.78. Specification

1.79. State

1.80. State Indemnitees

1.81. State Fiscal Year

1.82. Stipulated Sum (Fixed Price/Lump Sum)

1.83. Subconsultant

1.84. Subcontract

1.85. Subcontractor

1.86. Submittal Register

1.87. Substantial Completion

1.88. Unconditional Waiver of Lien

1.89. Uniform Terms and Conditions

1.90. Unit Price Work

1.91. Work

1.92. Work Progress Schedule

2.0 .... Contract Interpretation

2.1 Arizona Law

2.2 Contract Order of Precedence

2.3 Implied Terms

2.4 References to Statute

2.5 Usage

2.6 Independent Contractor

2.7 Severability

2.8 Complete Integration

2.9 No Waiver of Rights

3.0 .... Contract Administration and Operation

3.1. Term of Contract

3.2. Contract Extensions

3.3. Notices and Correspondence

3.4. Contractor Performance Evaluation

3.5. Signing of Contract Amendments

3.6. Click-Through Terms and Conditions

3.7. Books and Records

3.8. Contractor Licenses and Registration

3.9. Ownership of Intellectual Property

3.10. Inspection and Testing

3.11. Subcontracts and Subconsultants

3.12. Non-Discrimination

3.13. E-Verify Requirements

3.14. Offshore Performance of Certain Work Prohibited

3.15. Other Contractors

3.16. Work on State Premises

3.17. Background Checks

3.18. Advertising, Publishing and

Promotion of Contract

Table of Contents Page 3 of 5

4.0 .... Costs and Payments

4.1. Additional Work

4.2. Applicable Taxes

4.3. Application for Payment, Construction Contractor

4.4. Automated Clearing House

4.5. Availability of Funds

4.6. Contracted Labor Rate

4.7. Contract Payment Retention

4.8. Final Completion and Payment

4.9. Delay

4.10. Equipment Rental

4.11. Interest

4.12. Payment and/or Application for Payment

4.13. Project Suspension by Agency

4.14. Recovery of Overpayment

4.15. Reimbursable Expenses

4.16. Scrap or Surplus Material

4.17. Standard Hourly Rate Basis for Work

4.18. Stipulated Sum (Fixed Price/Lump Sum) Basis for Work

4.19. Notification of Payments

5.0 .... Contract Changes

5.1. Assignments and Delegation

5.2. Contract Amendments

5.3. Unauthorized Contract Amendments or Orders are Void

5.4. Change Orders

5.5. Field Order Directive

5.6. Minor Changes in the Work

5.7. Claims

6.0 .... Risk and Liability

6.1. Risk of Loss

6.2. Basic Indemnification

6.3. Patent and Copyright Indemnification

6.4. Force Majeure

6.5. Performance in Public Health Emergency

6.6. Safety Standards

6.7. Third Party Antitrust Violations

7.0 .... Warranties

7.1 Liens

7.2 Guarantees and Warranties

7.3 Contractor Personnel

7.4 Intellectual Property

7.5 Compliance with Laws

7.6 100% Construction Documents

7.7 Contracted Work, Errors and Omissions

7.8 Licenses and Permits

7.9 Operational Continuity

7.10 Performance in Public Health Emergency

7.11 Pandemic Contractual Performance

7.12 Lobbying

7.13 Survival of Warranties

7.14 Waiver of the Statute of Repose

8.0 .... State's Contractual Remedies

8.1 Agency’s Right to Carry Out the Work

8.2 Consequential Damages

8.3 Nonconforming Tender

8.4 Non-exclusive Remedies

8.5 Right to Assurance

8.6 Right of Offset

8.7 Stop Work Order

Table of Contents Page 4 of 5

9.0 .... Contract Termination

9.1 Agency Failure to Perform

9.2 Gratuities

9.3 Notice to Cure

9.4 Rights to Work Project

9.5 Suspension or Debarment

9.6 Termination for Conflict of Interest

9.7 Termination for Convenience

9.8 Termination for Default

9.9 Work Performance Continuation Required

10.0 .. Contract Claims

10.1 Claim Resolution

10.2 Mandatory Arbitration

11.0 .. Construction Contractor Responsibilities

11.1 Acceptance of Work

11.2 Additional Work

11.3 Allowances

11.4 As-Built Drawings

11.5 Automatic Temperature Control Design

11.6 Background Check

11.7 Bonds, Payment and Performance

11.8 Clean Up of Site

11.9 Compliance with Codes

11.10 Contractor Control of Site

11.11 Cooperation and Coordination

11.12 Schedule

11.13 Construction Cost Control

11.14 Construction Safety

11.15 Construction Meetings

11.16 Correction of Defects and Non-Compliant Work

11.17 Corrective Action Required

11.18 Cutting and Patching

11.19 Contractor Agreements, Communication

11.20 Energy Efficiency

11.21 Examination of Site

11.22 Forced Substitutions

11.23 Hazardous Materials, Substances, or Waste

11.24 Inclement Weather Day

11.25 Inspection and Material Testing

11.26 Key Personnel

11.27 Labor and Materials

11.28 Liquidated Damages

11.29 Meeting Minutes

11.30 Observations

11.31 Pre-Bid Conference Site Visit

11.32 Preconstruction Conference

11.33 Project Close Out

11.34 Proposed Change Order Review

11.35 Proprietary Specifications

11.36 Recalls

11.37 Recovery of Work Effort

11.38 Record Documents

11.39 Requirements at Location

11.40 Returns

11.41 Schedule of Values

11.42 Shop Drawings, Product Data and Samples

11.43 Special Inspections and Testing

11.44 Statutory Review

11.45 Structural, Mechanical, Electrical, Calculations

11.46 Submittal Register

11.47 Substantial and Final Completion

11.48 Substitution of Material or Equipment

11.49 Supervision and Project Administration

11.50 Surplus of Materials Purchased

11.51 Survey Reference Points

Table of Contents Page 5 of 5

11.52 Training

11.53 Transition

11.54 Unknown, Unforeseen, or Concealed Conditions

11.55 Utilities

11.56 Utility Shut Down and Start-Up

12.0 .. Agency Responsibilities

12.1 Access to Work Site

12.2 Accuracy of Information

12.3 Errors or Omissions

12.4 Site Information

12.5 Communications

12.6 Contractor Agreements, Related Construction

12.7 Promotional Materials

12.8 Substitutions of Material

12.9 Timely Review

13.0 .. Data and Information Handling

13.1 Applicability

13.2 Data Protection and Confidentiality of Information

13.3 Personally Identifiable Information

13.4 Protected Health Information

14.0 .. Information Technology Work

14.1 Applicability

14.2 Information Access

14.3 Pass-Through Indemnity

14.4 Redress of Infringement

14.5 First Party Liability Limitation

14.6 Information Technology Warranty

14.7 Specific Remedies

Uniform Terms and General Conditions Invitation for Bid

1) DEFINITION OF TERMS

As used in the Contract, the terms listed below are defined as follows:

Acceptance 1.1. “Acceptance” means the document headed “Offer and Acceptance Form” bearing the

State Contract number, once Procurement Officer has signed it to signify (a) the Agency’s formal acceptance of the Accepted Offer and (b) the formation of the Contract.

Additional Work 1.2. “Additional Work” means the addition of any Work, not described as Basic Work, to be provided to the Agency by the Construction Contractor that is contemplated by, but not specifically described in, an Exhibit to this Contract. Compensation for Additional Work must be approved through a Change Order or Contract Amendment.

Agency 1.3. “Agency” is used with the same meaning as “State” in definition below.

Agency Designated 1.4.

Representative “Agency Designated Representative” means the assigned representative of the Agency to monitor the progress and Schedule of the Work for the Project.

Allowance 1.5. “Allowance” means construction funds established by the Agency to compensate for a portion of the Work which cannot sufficiently be specified or determined before such Costs are incurred. The Construction Contractor shall place any and all Allowances within separate line items in the Construction Contractor’s Contract Cost at time of offer submission.

Application for Progress 1.6.

Payment

“Application for Progress Payment” means Contractor’s monthly invoice request for payment that includes any and all portions of the Work in a Contract that have been completed and accepted by the Agency for which an invoice has not been previously submitted in accordance with the requirements of the Contract Documents. Progress Payments for Contractor Work approved and certified by the Contractor and Agency signature, shall be paid less deductions to pay the expenses the Agency reasonably expects to incur in correcting a deficiency set for in an Agency written finding in accordance with A.R.S. §41-2577, and retained percentage in accordance with A.R.S. §41-2576.

Application for Final 1.7.

Payment

“Application for Final Payment” means Construction Contractor’s final invoice for payment. The Application for Final Payment shall meet all the requirements of Applications for Payment, but shall also include any and all remaining open invoices under the Contract. After a Construction Contractor’s Application for Final Payment is approved by the Agency, the Agency shall not release any additional payments to that Construction Contractor under the Contract.

Arizona Procurement 1.8.

Code; A.R.S., A.A.C.

“Arizona Procurement Code” means, collectively, Arizona Revised Statutes (“A.R.S.”) Title 41 Chapter 23, Section 2501, et seq., and the rules promulgated thereunder, Arizona Administrative Code (“A.A.C.”) R2-7-101, et seq.

NOTE: There are frequent references to the Arizona Procurement Code throughout the Solicitation, therefore, you will need to be familiar with its provisions to be able to understand the Solicitation fully. Links for obtaining copies are given below.

The Arizona Department of Administration State Procurement Office provides a reference compilation of the Arizona Procurement Code on its website:

https://spo.az.gov/administration-policy/state-procurement-resource/procurement-regulations The Arizona State Legislature provides the official A.R.S. online at:

http://www.azleg.gov/arstitle/ The Office of the Arizona Secretary of State provides the official A.A.C. online at:

http://www.azsos.gov/rules/arizona-administrative-code

Arizona TPT 1.9. “Arizona TPT” means Arizona Transaction Privilege Tax. For information, refer to the Arizona Department of Revenue (DOR) website at:

https://www.azdor.gov/business/transactionprivilegetax.aspx.

As-builts 1.10. “As-builts” shall mean the marked-up version of the Drawings and Specifications Contract Documents prepared by the Construction Contractor to record As-built conditions, current changes, and selections made during construction.

Attachment 1.11. “Attachment” means any item that the Offeror is required to submit as part of the provision of services required to design or engineer or construct the Project, as detailed in Exhibit A, “Construction Contractor Agreement”.

https://appstate.az.gov/ http://www.azsos.gov/rules/arizona-administrative-code https://www.azdor.gov/business/transactionprivilegetax.aspx

Basic Work 1.12. “Basic Work” means the services to be provided to the Agency by the Construction Contractor described in an Exhibit.

Bidding Documents 1.13. "Bidding Documents" means those documents prepared and furnished by the Design Professional for the purpose of obtaining bids from Construction Contractors to construct the Work.

Building Work 1.14. “Building Work” means everything covered by the definitions in A.R.S. § 41-2503 [Definitions] of the terms “Construction” (4), "Maintenance Services" (26), and "Operations Services" (28).

Change Order 1.15. “Change Order” means the instrument by which the Agency authorizes Construction Contractor to perform some or all of the Work, including but not limited, Construction Change Orders, Design Change Notices, and Field Order Directives. Consistent with A.R.S. § 41-2503(3), only the Procurement Officer responsible for this Contract has the authority to modify or amend this Contract through a signed Change Order or Contract Amendment. The Agency will only compensate Construction Contractor for Work that has been approved by the Agency through a fully authorized Change Order or Contract Amendment.

Close Out Documents 1.16. “Close Out Documents” means the product brochures, submittals, as-built drawings, product/equipment maintenance and operations instructions, manuals, and other documents/warranties, record documents, affidavit of payment, release of lien and claim, and as may be further defined, identified, and required by the Contract Documents.

Conditional Waiver of 1.17.

Lien

“Conditional Waiver of Lien” has the meaning defined in A.R.S §33-1008 which, for convenience of reference only, is a:

Conditional Waiver and release on Progress Payment “where the claimant is required to execute a waiver and release in exchange for or in order to induce the payment of a progress payment and the claimant is not in fact paid in exchange for the waiver and release or a single payee check or joint payee check is given in exchange for the waiver and release”; and

Conditional Waiver and release on Final Payment “where the claimant is required to execute a waiver and release in exchange for or in order to induce payment of a final payment and the claimant is not paid in exchange for the waiver and release or a single payee check or joint payee check is given in exchange for the waiver and release”.

Construction 1.18. “Construction” as defined in A.R.S. § 41-2503(4) means the process of building, altering, repairing, improving or demolishing any public structure or building or other public improvements of any kind to any real property in which the public has an interest.

Construction Contract 1.19. “Construction Contract” means any contract between the State and a Person that has or will engage in Construction Services for the benefit of the State.

Construction Contractor 1.20. “Construction Contractor” is a Person that has or had a contract with the State to engage in Construction Services for the benefit of the State.

Construction 1.21.

Documents

“Construction Documents” means any and all documents created by the Design Professionals that describe the Work in detail, including but not limited to, plans, specifications, revisions, addenda, and Change Orders, issued to build the project.

Construction Documents created after the Contract is signed may be integrated into the Contract if, and only if, there is a properly executed Contract Amendment or Change Order to verify that integration.

Contingency 1.22. “Contingency” means an amount associated with Costs that were unforeseen by the Construction Contractor when it submitted its offer which may be authorized by the Agency through a Change Order. Construction Contractor may not proceed with Work on Contingencies without prior authorization from the Agency through a Field Order Directive or Change Order. The Agency will not compensate Construction Contractor for unauthorized Contingency Work.

Contract 1.23. “Contract” means, collectively, the entire agreement between Agency and Construction Contractor, including all of the Contract Documents, the Acceptance, the Solicitation Documents, the Construction Contractor Agreement, any and all authorized Change Orders, and any Contract Amendments.

The Contract is identified as a “Purchase Order” in APP, since that is the terminology used in the software; use of that term in APP is not, in any way, an attempt by the Agency to change the contractual term “Order” as defined in (paragraph 44). The terms of this Contract are defined in this document alone. The use of different terminology, or the same terminology with a different meaning, in any State eProcurement system (including, but not limited to, APP) does not override any term in this Contract. The Construction Contractor should contact the relevant Procurement Officer if it has any questions regarding the meaning of terms in the State’s eProcurement System.

Contract Amendment 1.24. "Contract Amendment" means a document signed by Procurement Officer that has been issued for the purpose of making changes to the Contract after execution without changing the general scope. Only the Procurement Officer responsible for this Contract has the authority to modify or amend this Contract. The term “Change Order” in APP is synonymous with “Contract Amendment.

Contract Cost 1.25. “Contract Cost” means the amount for which a Construction Contractor agrees to perform the Work as set forth in its Contract with the Agency.

Contract Terms and 1.26.

Conditions

“Contract Terms and Conditions” means the Special Terms and Conditions and these Uniform Terms and Conditions taken collectively.

Contractor 1.27. For the purpose of this Contract, “Contractor” refers to any Person who has entered into a Contract with the Agency, including, but not limited to, a Design Professional or Construction Contractor.

Contractor Indemnitor 1.28. “Contractor Indemnitor” means Construction Contractor and/or any of its owners, officers, directors, agents, employees, or Subcontractors and, if applicable, their respective spouses.

Cost 1.29. 1) “Cost” as defined by A.R.S. § 41-2571(2), means the aggregate Cost of all Materials and services, including labor performed by force account. The Agency shall only pay for expenses explicitly authorized as part of the Work under the Contract.

2) For any changes, subject to Markup, in the Work or additional charges sought by Construction Contractor under the contract, “Cost” shall only mean actual direct labor, material, and service Costs incurred by Construction Contractor at the construction site and which are necessary to complete the Work. Such Costs shall include those from subcontractors, vendors, and material suppliers.

3) Costs, for the purpose of this section, shall exclude markup for, including but not limited to, Costs incurred for general conditions, bonds, insurance, contingency, overhead or profit.

Day 1.30. “Day” means a calendar day unless otherwise specified in a particular context.

Design Change Notice 1.31. “Design Change Notice” refers to an agreement that records a change to the time for

Work completion, price, and/or change in design after the initial completion of the design was reviewed and approved by the Statutory Review. The purpose of the Design Change Notice is to ensure: the changes are re-reviewed and approved by Statutory Review and the Procurement Officer; and the Contract Documents are revised in a manner that is consistent with the Design Requirements under the Contract.

Design Professional 1.32. “Design Professional” means the individual or firm with which the Agency has entered into a written Design Professional Services Contract.

Design Professional 1.33.

Services

“Design Professional Services” as defined in A.R.S. § 41-2571(4), means architect services, engineer services, land surveying services, geologist services or landscape architect services or any combination of those services performed by or under the supervision of a Design Professional or employees or Subconsultants of the Design Professional.

Design Requirements 1.34. "Design Requirements" means, at a minimum, the purchasing Agency's written description of the Work by the Design Professional including: the required features, functions, characteristics, qualities and properties; the anticipated Schedules, including start, duration and completion; and estimated budgets applicable to the specific procurement for design and Construction and, if applicable, for operation and maintenance, and plans and specifications for the project.

“Design requirements” may also include the following, at the purchasing Agency’s discretion: Drawings and other documents illustrating the scale and relationship of the features, functions and characteristics of the project, which shall all be prepared by a design professional who is registered pursuant to A.R.S. § 32-121; and/or additional design information or documents.

Drawings 1.35. “Drawing” means the Work product of the Design Professional which graphically depicts the Work.

Estimated Project 1.36.

Construction Cost

“Estimated Project Construction Cost” shall mean Design Professional's written estimate in the form specified by the Agency of the total Construction Cost of the Project at the various stages of the design process.

Excusable Delay 1.37. “Excusable Delay” means a delay to the Schedule approved through a Change Order that entitles the Construction Contractor to an adjustment of the Contract time for Substantial Completion, but not an adjustment of the Contract Cost.

Exhibit 1.38. “Exhibit” means any item labeled as an Exhibit in the Solicitation or placed in the Exhibits section of the Contract Documents.

Field Order Directive 1.39. “Field Order Directive” refers to written directives used in advance of a Construction Change Order, as more specifically prescribed in these Uniform Terms and General Conditions.

Final Completion 1.40. “Final Completion” means the date upon which the Work is complete in accordance with the terms and conditions of the Contract, including punch list items. The date of Final Completion shall be set by the Agency in the Special Terms and Conditions as a certain number of days after Substantial Completion. Any additional or supplemental Work after this date due to Construction Contractor error or omission shall be completed by the Construction Contractor without additional compensation.

Final Completion 1.41.

Certificate

The “Final Completion Certificate” is the certificate issued by the Design Professional and/or the Agency Designated Representative that documents, to the best of the Design Professional’s and/or the Agency Designated Representative’s knowledge and understanding, that Construction Contractor has completed all Work required by the contract documents, including, but not limited to: all of the Punch List items and pre-final Punch List items for which it is responsible; final cleanup; and Construction Contractor’s provision of Record Documents, operations manuals, maintenance manuals, and any and all other Close Out Documents required by the Contract Documents.

General Conditions of 1.42.

Contractor

“General Conditions of Contractor” means the Construction Contractor’s resources, equipment, and items used by the Construction Contractor in the Work of the Project that is used to complete the Project. The General Conditions Fee will be based on actual itemized, documented Cost.

Gratuity 1.43. “Gratuity” means a payment, loan, subscription, advance, deposit of money, services, or anything of more than nominal value, present or promised, unless consideration of substantially equal or greater value is received.

Hazardous Waste; 1.44.

Release

“Release” means any discharging, disposing, dumping, emitting, emptying, escaping, injecting, leaching, leaking, pouring, pumping, releasing, spilling, or similar action or event.

“Construction Contractor Hazardous Waste Release” means any Release of a Hazardous Substance on Owner’s property or adjoining property during the Work arising, in whole or in part, from acts or omissions of Construction Contractor or any Subcontractor.

Hazardous Substance 1.45. “Hazardous Substance” means a substance, material or hazardous waste which, by reason of being explosive, flammable, poisonous, corrosive, oxidizing, irritating or otherwise harmful, is likely to cause death or injury.

Hazardous Waste 1.46. “Hazardous Waste” means “hazardous waste”, as defined in the Resource Conversation and Recovery Act of 1976 and the Solid Waste Disposal Act (42 U.S.C.

6901, et seq.) and any successor statutes and any regulations, rules or guidelines promulgated pursuant thereto as in effect from time to time (including, without limitation, any such waste resulting from removal of, demolition or modifications of or additions to part or all of any existing structure, facility or equipment).

“Contractor Hazardous Waste” means any Hazardous Waste arising during or from Work that is generated, in whole or in part, by the acts or omissions of Construction Contractor or a Subcontractor.

Indemnified Basic 1.47.

Claims

“Indemnified Basic Claims” means any and all claims, actions, liabilities, damages, losses, or expenses, including court costs, expert fees, attorneys’ fees, and costs of claim processing, investigation and litigation, for any and all damage or equitable claims made against the Agency, including, but not limited to, personal injuries, death, property damages (real, personal, tangible or intangible), and injunctive relief.

See paragraph 6.3.

Instructions to Offerors 1.48. “Instructions to Offerors” are those instructions in the Solicitation Documents.

Materials 1.49. “Materials” means, as defined in A.R.S. § 41-2503(7) “all property, including equipment, supplies, printing, insurance, and leases of property [but] does not include land, a permanent interest in land or real property or leasing space.”

Materials includes software, unless the software is sold or provided as a service under the Contract. Software sold or provided as a service under the Contract is both a Material (to the extent it consists of encoded information or computer instructions) and a service, as described in “Services”

Negotiation 1.50. “Negotiation” means, as defined in A.A.C. R2-7-101(32), an exchange or series of exchanges between the Agency and an offeror or Construction Contractor that allows the Agency or the offeror or Construction Contractor to revise an offer or Contract, unless revision is specifically prohibited by the Arizona Procurement Code.

Notice to Cure 1.51. “Notice to Cure” means a written letter from a Procurement Officer to cure an event of default and/or an anticipatory breach of Contract setting forth a time limit in which the cure is to be completed or commenced and diligently prosecuted.

Notice to Proceed 1.52. “Notice to Proceed” means the written document from a Procurement Officer, by letter or email, informing Design Professional and/or Construction Contractor of the date designated as the date of commencement of construction and the date of Substantial Completion.

Offer; Best and Final Offer 1.53.

(BAFO)

“Offer,” and “Best and Final Offer” (“BAFO”) are each defined in the Instructions to Offerors.

Payment Bond 1.54. “Payment Bond” means a bond issued by a surety authorized to transact business in this State, issued in the amount for the Contract Cost and is payable to Agency, solely for the protection and use of payment bond beneficiaries pursuant to A.R.S. § 41-2574.

Performance Bond 1.55. “Performance Bond” means a bond issued by a surety authorized to transact business in this State, issued in the amount for the Contract Cost and is payable to State, to guarantee the faithful performance of the Work by the Construction Contractor in accordance with the Contract Documents pursuant to A.R.S. § 41-2574.

Person 1.56. “Person” means any corporation, business, individual, firm, partnership, association, union, committee, club, or other organization or group of individuals.

Preconstruction 1.57.

Services

“Preconstruction Services” means services and other activities during the Design Phase.

Procurement Officer 1.58. “Procurement Officer” means the person, or his or her designee, who has been duly authorized by Agency to enter into and administer the Contract and to make written determinations with respect to the Contract. Procurement Officer is as identified on the Acceptance unless subsequently changed by Contract Amendment.

eProcurement System 1.59.

(APP)

“eProcurement System” means State’s official electronic procurement system, established pursuant to A.A.C. R2-7-201, as set forth in the Arizona Department of Administration State Procurement Office policy document Technical Bulletin No. 020, APP – The Official State eProcurement System.

NOTE (1): Technical Bulletin No. 020 is available online at:

https://spo.az.gov/administration-policy/state-procurement-resource/procurement-regulations

NOTE (2): The URL for APP itself is:

https://appstate.az.gov/

Product Data 1.60. “Product Data” means illustrations, Schedules, performance charts, instructions, brochures, diagrams and other information furnished by the Construction Contractor to illustrate Materials or equipment for some portion of the Work.

Progress Payment 1.61.

Certificate

NEED LANGUAGE

Project 1.62. “Project” means any and all activities necessary for realization of the Work. This includes but is not limited to design, Contract award(s), execution of the Work itself, and fulfillment of all Contract and warranty obligations.

Proposed Change Order 1.63. “Proposed Change Order” means a document that informs Agency of a proposed change in the Work and appropriately describes or otherwise documents such change including Construction Contractor(s)’s response of pricing for the proposed https://appstate.az.gov/ https://spo.az.gov/administration-policy/state-procurement-resource/procurement-regulations https://spo.az.gov/administration-policy/state-procurement-resource/procurement-regulations change.

Punch List 1.64. “Punch List” means a list of items of Work to be completed or corrected by

Construction Contractor after Substantial Completion. Punch Lists indicate items to be finished, remaining Work to be performed, or minor Work that does not meet quality or quantity requirements as required in the Contract Documents.

Record Documents 1.65. The term "Record Documents" shall mean those documents including, but not limited to, the updated version of the Construction Documents prepared by the Construction Contractor incorporating any Attachments, Exhibits, Change Orders, and information from the As-Builts and other data furnished by Construction Contractors to the Agency.

Request for Information 1.66. “Request for Information” (RFI) means a written request by Construction Contractor directed to the Agency or Agency Designated Representative for a clarification of the information provided in the Contract Documents or direction concerning information necessary to perform the Work that may be omitted or unclear from the Contract Documents.

Reimbursable Expenses 1.67. “Reimbursable Expenses” means a limited range of Costs approved by the Agency for which the Construction Contractor can receive compensation under the Contract for amounts expended in the interest of the Project. Unless otherwise detailed in the Scope of Work or limited by other Agency policies, and subject to review and approval by the Agency, the following, and only the following, are the categories of Costs which may be Reimbursable Expenses:

Subject to the cost limitation of the State of Arizona Travel Policy, transportation costs accrued in furtherance of Work and under the Contract and Agency authorized out-of-town travel and subsistence;

Fees paid to governmental entities that ensure Agency compliance with any applicable laws or codes;

Costs paid toward reproduction, plots, standard form documents, postal charges;

If requested and approved by the Agency, costs paid for surveys, requests and special requests.

Construction Contractor shall not exceed the approved Reimbursable Expense amount stated in the Contract without prior written approval of the Agency through a Contract Amendment.

Samples 1.68. “Samples” mean representative physical examples of Materials, equipment, or workmanship used to confirm compliance with requirements and/or to establish standards for use in execution of the Work.

Schedule 1.69. “Schedule” means the timetable which sets forth pertinent milestones, reviews, critical path of activities and other deadlines for timely completion of the Work for the Project prepared by Construction Contractor and accepted by Agency. The Schedule shall not exceed the time limit current under the Contract Documents unless approved by Agency through a Contract Amendment.

Schedule of Values 1.70. “Schedule of Values” means the detailed breakdown of the original Contract Cost for the Materials, labor, and equipment necessary to accomplish the Design and/or Construction Work.

Scope of Work 1.71. “Scope of Work” means the Requirements Document of the Solicitation Documents.

Scope of Work is inclusive of the Project program for design Work and the Construction Documents for performance of the construction Work.

Secure Locations 1.72. “Secure Locations” means those buildings and grounds (Sites) that require specific security-related criteria where access to the Work Site or the Site’s daily operations negatively affects the Construction Contractor’s productivity on a daily basis.

Services 1.73. “Services” as defined in A.R.S. § 41-2503(35), means “the furnishing of labor, time, or effort by [the] [C]ontractor or [S]ubcontractor which does not involve the delivery of a specific end product other than required reports and performance [but] does not include employment agreements or collective bargaining agreements.” Services includes Building Work and the service aspects of software described in Materials.

Shop Drawings 1.74. “Shop Drawings” mean the drawings, diagrams, illustrations, schedules, performance charts, brochures, and other data prepared by Construction Contractor or its Subcontractors which detail a portion of the Work.

Site 1.75. “Site” means the geographical location of the Work for the Project.

Solicitation; Solicitation 1.76.

Documents “Solicitation” and “Solicitation Documents” are defined in the Uniform Instructions to Offerors.

Special Terms and 1.77.

Conditions

“Special Terms and Conditions” are contained in the Special Terms and Conditions section of the Solicitation Documents.

Specification 1.78. “Specification” has the meaning given in A.R.S. § 41-2561, which, for convenience of reference only, is “… any description of the physical or functional characteristics, or of the nature of a Material, service or construction item. Specification may include a description of any requirement for inspecting, testing or preparing a Material, service or construction item for delivery.” Specifications (if any are included in the Contract), are indexed in the Scope of Work and could be bound separately from the other documents forming the Contract.

State 1.79. With respect to the Contract generally, “State” means the State of Arizona and its department, agency, university, commission, or board that has executed the Contract. With respect to administration or rights, remedies, obligations and duties under the Contract for a given Order, “State” means each eligible Agency who has issued the Order.

State Indemnitees 1.80. “State Indemnitees” means, collectively, the State of Arizona, its departments, agencies, universities, commissions, and boards and, and their respective officers, agents, and employees.

State Fiscal Year 1.81. “State Fiscal Year” means the period beginning each July 1 and ending each June 30.

Stipulated Sum (Fixed 1.82.

Price/Lump Sum)

“Stipulated Sum (Fixed Price/Lump Sum)” means the complete and total amount the Construction Contractor is obligated to complete the Work barring unforeseen conditions, Agency change to the Scope of Work, or other circumstances set forth in the Contract.

Subconsultant 1.83. “Subconsultant” as defined in A.R.S. § 41-2571, means any person, firm, partnership, corporation, association or other organization, or a combination of any of them, that has a direct Contract with Construction Contractor or another subconsultant to perform a portion of the Work.

Subcontract 1.84. “Subcontract” means any Contract, express or implied, between Construction Contractor and another party or between a Subcontractor and/or Subconsultant and another party delegating, in whole or in part, the making or furnishing of any Materials, the performing of any Services, or the carrying out of any other aspect of the Work.

Subcontractor 1.85. “Subcontractor” as defined in A.R.S. § 41-2503(38), is “… a person who contracts to perform Work or render service to … [C]ontractor or to another [S]ubcontractor as a part of a Contract with a state governmental unit . . .” The Contract is to be construed as “a Contract with a state governmental unit” for purposes of the definition. Any Person carrying out an element of the Work who is neither a Construction Contractor nor a representative of the State is a Subcontractor from the moment that Person first carries out that element of the Work, regardless of whether a Contract exists between that Person and the Construction Contractor, then or subsequently.

Submittal Register 1.86. “Submittal Register” means a list provided by Construction Contractor of all items to be furnished for review and approval by Construction Contractor and/or Agency and as identified in the Contract Documents including submittal dates.

Substantial Completion 1.87. “Substantial Completion” means the date determined and certified by the Design Professional’s and/or Agency Designated Representative’s signature, when the Work, or a designated portion thereof, is sufficiently complete, in accordance with the Contract, so as to be operational and fit for the use intended.

Unconditional Waiver of 1.88.

Lien

“Unconditional Waiver of Lien” has the meaning defined in A.R.S. §33-1008. An Unconditional Waiver of Lien on Progress Payment is “where the claimant is required to execute a waiver and release in exchange for or in order to induce the payment of a Progress Payment and the claimant asserts in the waiver that it has been paid the Progress Payment”. Unconditional Waiver of Lien on Final Payment is “where the claimant is required to execute a waiver and release in exchange for or in order to induce payment of a Final Payment and the claimant asserts in the waiver that it has been paid the Final Payment”.

Uniform Terms and 1.89.

Conditions

The “Uniform Terms and Conditions” are made up of this document and whichever of the Appendices are indicated in the Special Terms and Conditions as being applicable.

Unit Price Work 1.90. “Unit Price Work” means the Work, or a portion of the Work, paid for based on incremental units of measurement.

Work 1.91. “Work” means the totality of the Materials and the Services and all the acts of administration, creation, production, and performance necessary to fulfill and incidental to fulfilling all of Construction Contractor(s)’s obligations and duties under the Contract in conformance with the Contract and applicable laws. "Work" shall refer to any and all authorized Basic and/or Additional Work.

Work Progress 1.92.

Schedule

“Work Progress Schedule” means the continually updated time Schedule prepared and monitored by Construction Contractor that accurately indicates all necessary appropriate revisions as required by the conditions of the Work and the Project while maintaining a concise comparison to the Schedule.

2.0 Contract Interpretation

2.1 Arizona Law The Contract is governed by, and is to be interpreted in accordance with, the laws of the State of Arizona, including, but not limited to the Arizona Procurement Code, without consideration of conflict of laws principles

2.2 Contract Order of

Precedence

1) COMPLEMENTARY DOCUMENTS. All of the documents forming the Contract are complementary and all provisions are to be interpreted as a single, united contract. If certain Work, requirements, obligations, or duties are set out only in one but not in another, Construction Contractor shall carry out the Work as though the relevant Work, requirements, obligations, or duties had been fully described in all, consistent with the other documents forming the Contract and as is reasonably inferable from them as being necessary to produce complete results.

2) CONFLICTS. In case of any inconsistency, conflict, or ambiguity among the documents forming the Contract and their provisions, Contractor shall i) provide the better quality or greater quantity of Work or ii) comply with the more stringent requirements. If the foregoing requirements do not resolve the issue of inconsistency, conflict, or ambiguity, then the following contract documents and their provisions are to prevail in the following order, descending from most dominate to most subordinate, provided that, among categories of documents or provisions within the same sub-section below, the document or provision with the latest date prevails; information being identified in one document but not in another is not to be considered a conflict or inconsistency.

a) Change Orders, in reverse chronological order;

b) Solicitation Documents, in this order:

c) Special Terms and Conditions;

d) Exhibits to the Special Terms and Conditions;

e) Federal Terms and Conditions (for any Projects with federal funding)

f) Uniform Terms and Conditions;

g) Scope of Work;

h) Exhibits to the Scope of Work;

i) Any other documents referenced or included in the Solicitation;

i) Accepted Offer

j) Any Contract created as a result of an IGA and Project Proposal including

Task Orders, Attachments, Exhibits, and Schedules created as part of, or under any Contract;

k) Design Requirements;

l) Specifications

m) Drawings (given dimensions take precedence over scaled measurements);

n) Notice to Proceed;

o) Schedule;

2.3 Implied Terms Each provision of law and any terms required by law to be in the Contract are a part of the Contract as if fully stated in it.

2.4 References to Statute The above Definitions of Terms includes statutory language for convenience. If any definition in the Contract references a statute without modification, the current statutory language, not the stated definition in the Contract, will take priority in any interpretation of the Contract.

2.5 Usage 1) Where the Contract:

a) Assigns obligations to the Construction Contractor, any reference to

“Construction Contractor” is to be construed to be a reference to “Construction Contractor” and all Subconsultants and/or Subcontractors whether or not they are first-tier, suppliers, sub-suppliers, consultants, or sub-consultants, as well as all of Construction Contractor’s and the Subconsultants and/or Subcontractors respective agents, representatives, and employees” in every instance unless the context plainly requires that it is a reference only to Construction Contractor as apart from Subconsultants and/or Subcontractors;

b) Uses the permissive “may” with respect to a party’s actions, determinations, etc., the term is to be interpreted as in A.A.C. R2-7-101(31) [Definitions].

For clarity of intent, any right given to Agency using “State may” or a like construction, denotes discretion and freedom to act so far as any regulatory or operative constraints permit in the relevant circumstances, provided that the Agency’s discretion extends to whatever is in the best interest of the Agency;

c) Uses the imperative “shall” with respect to a party’s actions, duties, etc., the term is to be interpreted as in A.A.C. R2-7-101(43) [Definitions].

Conversely, the phrase “shall not” is to be interpreted as an imperative prohibition;

d) Uses the term “must” with respect to a requirement, criterion, etc., the term is to be interpreted as conveying compulsion or strict necessity, and is to be read as though written “must, if [the subject] is to be entitled to have [the object] considered or credited as being compliant with, conforming to, or satisfying [the requirement, criterion, constraint, etc.], otherwise, [the object] will be considered or debited as being non-compliant, non-conforming, or unsatisfactory for its Contract-related purposes” in every instance;

e) Uses the term “might” with respect to an event, outcome, action, etc., the term is to be interpreted as conveying contingency or non-discretionary conditionality; and

f) Uses the term “will” or the phrases “is to be” or “are to be” with respect to an event, outcome, action, etc., the term or phrase is to be interpreted as conveying such certainty or imperativeness that “shall” is either unnecessary or irrelevant in that instance.

2.6 Independent Contractor Construction Contractor is an Independent Contractor and shall act in an independent capacity in performance under the Contract. Neither party is, or is to be construed to be, the employee or agent of the other party, and no action, inaction, event, or circumstance will be grounds for deeming it to be so.

2.7 Severability The provisions of this Contract are severable to the extent allowed under Arizona contract law. Any term or condition deemed or adjudged illegal or invalid is thereby stricken from the Contract and will not affect any other term or condition of the Contract.

2.8 Complete

Integration

The Contract, including any documents incorporated into the Contract by reference and any authorized Contract Amendments and Change Orders, is intended by the parties to be a final and complete expression of their agreement. There are no prior, contemporaneous, or additional agreements, either oral or in writing, pertaining to the Contract. No course of prior dealings between the parties and no usage of the trade shall supplement or explain any terms used in this document and no other understanding either oral or in writing can independently bind the Agency to changes to the Contract. The Agency may avoid any unauthorized modifications to the Contract.

2.9 No Waiver

of Rights

Either party’s failure to insist on strict performance of any term or condition of the Contract is not, and is not to be construed as being, nor will it be deemed, a waiver of that term or condition or a bar to, or diminishment of the right of, subsequent enforcement of any term or condition.

3.0 Contract Administration and Operation

3.1. Term of Contract The term of the Contract will commence on the date indicated on the Acceptance and continue for the period specified in the Special Terms and General Conditions unless canceled, terminated, or permissibly extended. If the Special Terms and General Conditions do not specify a period, then the Contract will remain in force for that period required for Final Completion of the Work for the Project, including required extensions thereto, unless discontinued by any of the several provisions contained elsewhere in the Contract, but no longer than 5 years total. Agency has no obligation to extend or renew the Contract past the initial term.

3.2. Contract Extensions Agency may at its discretion extend the initial Contract term in increments of one or more months and do so one or more times, provided that, the maximum aggregate term of the Contract including extensions cannot exceed the period specified in the Special Terms and Conditions. If the Special Terms and Conditions do not specify a period, then a reasonable period of time, but no more than an aggregate of 5 (five) years. Nothing herein shall negate Construction Contractor’s obligation to continuously perform the Work with adequate manpower and due diligence.

3.3. Notices and

Correspondence

1) TO CONSTRUCTION CONTRACTOR. Unless stated otherwise in the Special Terms and General Conditions, Agency shall:

a) Address all Contract correspondence other than formal notices to the email address indicated as “Default for Type” for “General Mailing Address” in Contractor’s corresponding APP Vendor Profile; and

b) Address any required notices to Contractor to the “Contact Name and Title” at the “Mailing Address” indicated in the Construction Documents.

2) TO AGENCY. Unless stated otherwise in the Special Terms and General Conditions, Contractor shall:

a) Address all Contract correspondence other than format notices to the email address indicated in “Contact Instructions” in the APP Summary for State;

and

b) Address any required notices to Procurement Officer identified as “Purchaser” in the APP Summary at the following mailing address:

Arizona Department of Administration State Procurement Office

100 N 15th Ave., Suite 402 Phoenix, AZ 85007

3) CHANGES. Agency may change the designated Procurement Officer, update contact information, or change the applicable mailing address by Contract Amendment.

4) Notice is deemed served when emailed or mailed.

3.4. Contractor

Performance Evaluation

The Agency may evaluate the Construction Contractor’s performance during the progress of the Work, at completion of a phase of Work for the Project, completion of the Work, or any of the foregoing. The Agency shall retain the evaluation(s) in the procurement file. The Agency will use the evaluation(s) in determining the responsibility of the Construction Contractor for any award of a future contract for the next five (5) years. If the Construction Contractor or any of the Construction Contractor’s Subconsultants and/or Subcontractors commit a breach of the contract for the project, the Agency will use the responsibility analysis for future projects for five (5) years after the date of breach of the Construction Contractor’s Subconsultants and/or Subcontractors (where applicable) for future contract awards with the Agency or Subcontracts on Agency Projects. Construction Contractor may comment or take exception to any rating in accordance with the State’s protest policies.

3.5. Signing of…