ADPS19-00008492_Part_3_Terms_and_Conditions_with_P_W_modifications_5-19.pdf

SECTION 3-A: Special Terms and Conditions

Date: 8-21-18

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Contract Terms and Conditions

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Request for Proposals

Solicitation No.

ADPS19-00008492

Description:

Pratt & Whitney Engine Overhaul, Repair and Maintenance

Arizona Department of

Public Safety

2102 W. Encanto Blvd., Ste 340

Phoenix, Arizona 85009

ORDERING METHODS. Unless a particular ordering method is specified in the Commercial Document, Contractor shall receive Orders by the methods indicated by an “” mark below.

The choice of method in each instance will be at the discretion of each Eligible Agency or Co-Op Buyer if more than one method applies to the Contract.

Contractor shall bear the responsibility for the costs of set-up, maintenance, and support for the indicated methods; The Eligible Agency or Co-Op Buyer will not be liable for any separate set-up, service or system maintenance charges on top of the contractual item prices unless expressly stated otherwise in the Commercial Document.

1.0

MODIFIED or ADDED Provision

Part 3 of the Solicitation:

Contract Terms and Conditions

Note: Highlighted Sections have been modified from original solicitation documents and are the final contract document.

Section 3-A:

Special Terms and Conditions Date:8-21-18

The Special Terms and Conditions modify the Uniform Terms and Conditions and its Appendices. It can modify them by replacing, deleting, appending to, or revising the text of an existing provision or by inserting a new paragraph into an existing article. No other document modifies or adds to the Uniform Terms and Conditions, except as may subsequently be otherwise and expressly agreed and incorporated by Contract Amendment.

1.1 Deleted

1.2 Deleted

https://procure.az.gov/bso/

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ADPS19-00008492

Description:

2102 W. Encanto Blvd., Append the following to the referenced paragraph:

1.3 USE OF THE CONTRACT. The Contract is to be used as follows (indicated by the “” mark):

The Contract is a “single-agency/single-use” contract for the exclusive use of Arizona Department of Public Safety for a single purchase, project, or assignment (referred to internally as “Title of Solicitation”).

The Contract has been awarded with the understanding and agreement that it is for the sole convenience of State. State reserves the right to obtain like materials or services from another source when necessary without penalty or obligation.

Online through the Arizona Procurement Portal (APP) by “releasing” established Contract “items”.

Contractor Insurance Requirements: Coverage-Specific Requirements Aviation Commercial General Liability (CGL)

Contactor shall provide coverage with limits of liability not less than those stated below.

Aviation Commercial General Liability (CGL) – Occurrence Form

Policy shall include bodily injury, property damage, and broad form contractual liability coverage.

General Aggregate Not Applicable

Products – Completed Operations Aggregate $5,000,000

Personal and Advertising Injury $5,000,000

Damage to Rented Premises $50,000

Each Occurrence $5,000,000

Hangar keepers Liability $10,000,000 Each Aircraft

$10,000,000 Each Occurrence

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Description:

2102 W. Encanto Blvd., Business Automobile Liability

Every Business Automobile Liability policy must:

• Combined Single Limit (CSL) $1,000,000

Workers Compensation and Employer’s Liability

Worker’s Compensation Statutory

Employer’s Liability

Each Accident $1,000,000

Disease-Each Employee $1,000,000

Disease-Policy Unit $1,000,000

End of Section 3-A

SECTION 3-B: Uniform Terms and Conditions

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ADPS19-00008492

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2102 W. Encanto Blvd., Section 3-B:

Uniform Terms and Conditions Version: 11.2 (6/15/2016)

FOR USE IN ALL INVITATIONS FOR BIDS, REQUESTS FOR PROPOSALS, AND REQUESTS FOR QUOTATIONS, AS

WELL AS REQUESTS FOR QUALIFICATIONS UNDER A.R.S. §41-2558

Uniform Terms and Conditions

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 the Arizona Procurement Code, Arizona Revised Statutes

(A.R.S.) Title 41, Chapter 23, and its implementing rules, Arizona Administrative Code

(A.A.C.) Title 2, Chapter 7, without consideration of conflict of laws principles.

2.2 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.

2.3 Usage 2.3.1 Deleted

2.3.2 MAY. Where the Contract 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 State 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: (a) where written “may, at its discretion,” the discretion extends to whatever is most advantageous to the subject party; and (b) where written only as “may,” the discretion is constrained by what is fair, reasonable, and as accommodating of the respective best interests of both parties as practicable under the circumstances.

2.3.3 SHALL. Where the Contract 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.

2.3.4 MUST. Where the Contract 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.

2.3.5 MIGHT. Where the Contract 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.

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2.3.6 WILL. Where the Contract 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.

2.4 Contract Order

of Precedence

All of the documents forming the Contract are complementary. If certain work, requirements, obligations, or duties are set out only in one but not in another, Contractor shall carry out the Work as though the relevant work, requirements, obligations, or duties had been fully described on all, consistent with the other documents forming the Contract and as is reasonably inferable from them as being necessary to produce complete results. In case of any inconsistency, conflict, or ambiguity among the documents forming the Contract and their provisions, they are to prevail in the following order, descending from most dominate to most subordinate, provided that, among categories of documents or provisions having the same rank, 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.

1. Contract Amendments.

2. Scope of Work.

3. Pricing and Commercial Terms

4. Special Terms and Conditions.

5. Uniform Terms and Conditions

6. Exhibits to the Special Terms and Conditions.

7. Any other documents referenced or included in the Solicitation.

8. Orders, in reverse chronological order.

9. Accepted Offer.

For clarity of intent, if an item was an Attachment in the Solicitation or the Offer (either initial, Revised, or Accepted) and was subsequently made into an Exhibit, or its content was incorporated into one of the other Contract documents, then that Attachment no longer exists contractually as an “Attachment” since it has been made into some other

Contract document at that point. In every other case, an Attachment and the Offeror data therein or thereon remain part of the Accepted Offer for purposes of precedence and contractual effect.

2.5 Independent

Contractor

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 as being 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.

2.6 Severability 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.

2.7 Complete

Integration

The Contract, including any documents incorporated into the Contract by reference, is intended by the parties as 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.

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2.8 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 to be, a waiver of that term or condition or a bar to, or diminished right of, 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 Conditions unless canceled, terminated, or permissibly extended. If the Special Terms and Conditions do not specify a period, then the initial term is 1 (one) year. State has no obligation to extend or renew the Contract past the initial term.

3.2 Contract

Extensions

State 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 not exceed the period specified in the Special

Terms and Conditions. If the Special Terms and Conditions do not specify a period, then the maximum aggregate term is 5 (five) years.

3.3 Notices and

Correspondence

3.3.1 TO CONTRACTOR. Unless stated otherwise in the Special Terms and

Conditions, State 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 Arizona Procurement Portal Vendor Profile and (b) address any required notices to Contractor to the “Contact Name and Title” at the “Mailing Address” indicated on the Accepted Offer, as that address might have been amended during the term of the Contract.

3.3.2 TO STATE. Unless stated otherwise in the Special Terms and Conditions, Contractor shall (a) address all Contract correspondence other than format notices to the email address indicated in “Contact Instructions” in the Arizona Procurement Portal

Summary for State and (b) address any required notices to State to Procurement

Officer identified as “Purchaser” in the Arizona Procurement Portal Summary at the following mailing address:

Arizona Department of Administration

State Procurement Office

100 N 15th Ave., Suite 201

Phoenix, AZ 85007

3.3.3 CHANGES. State may change the designated Procurement Officer, update contact information, or change the applicable mailing address by Contract Amendment.

3.4 Signing of Contract

Amendments

Contractor’s counter-signature – or “approval” in Arizona Procurement Portal, in the case of a Change Order – is not required to give effect if the Contract Amendment only covers either:

(1) extension of the term of the Contract within the maximum aggregate term;

(2) revision to Procurement Officer appointment or contact information; or

(3) modifications of a clerical nature that have no effect on terms, conditions, price, scope, or other material aspect of the Contract.

In every case other than those listed in (1), (2), and (3) above, both parties’ signature – or “approval” in Arizona Procurement Portal in the case of a Change Order

– are required to give it effect.

3.5 Click-Through

Terms and Conditions

Delete

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3.6 Books and

Records

Delete

3.7 Contractor

Licenses

Contractor shall maintain current all federal, state and local licenses and permits required for the operation of its business in general, for its operations under the

Contract, and, unless expressly stated otherwise in the Special Terms and Conditions, for the Work itself.

3.8 Inspection

and Testing

By A.R.S. § 41-2547, State may at reasonable times inspect the part of Contractor’s or

Subcontractors’ plant or places of business related to performance under the Contract.

Accordingly, Contractor agrees to permit (for itself) and ensure (for Subcontractors) access for inspection at any reasonable time to its facilities, processes, and services.

State may inspect or test, at its own cost, any finished goods, work-in-progress, components, or unfinished materials that are be supplied under the Contract or that will be incorporated into something to be supplied under the Contract. If the inspection or testing shows non-conformance or defects, then Contractor will owe State reimbursement or payment of all costs it incurred in carrying out or contracting for the inspection and testing, as well as for any re-inspection or re-testing that might be necessary. Neither inspection of facilities nor testing of goods, work, components, or unfinished materials will of itself constitute acceptance by State of those things.

3.9 Acceptance

of Work

3.10 Ownership of

Intellectual Property

Delete

3.11 Subcontracts Delete

3.12 Non- Discrimination Delete

3.13 E-Verify

Requirements

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3.14 Offshore

Performance of Certain Work Prohibited

Contractor shall only perform those portions of the Services that directly serve State or its clients and involve access to secure or sensitive data or personal client data within the defined territories of the United States. Unless specifically stated otherwise in the

Specifications or the Scope of Work, this paragraph does not apply to indirect or overhead services, redundant back-up services, or services that are incidental to the performance under the Contract. This provision applies to work performed by

Subcontractors at all tiers.

3.15 Orders 3.15.1 ORDER SUFFICIENCY. The Contract was awarded in accordance with the

Arizona Procurement Code; the transactions and procedures required by the code for competitive source selection have been met. An Order issued as set forth in the

Special Terms and Conditions that cites the correct State contract number will suffice to authorize Contractor to provide the Materials and perform the Services covered by that Order.

3.15.2 ORDER TERMS. All Orders are subject to the Contract Terms and Conditions;

an Order cannot modify the Contract Terms and Conditions.

3.15.3 ORDERS ARE OBLIGATORY. Until the expiration or earlier termination of the

Contract, State may issue and Contractor shall accept Orders that make proper reference to the Contract and are permissible hereunder, provided that, Contractor is not obliged to accept any Order that is not consistent with the then-current pricing, lead times, specifications, or payment provisions of the Contract. Contractor shall fulfill and complete any Orders that are begun but not yet completed as of expiration or earlier termination of the Contract unless State instructs otherwise at the time.

3.15.4 SPECIAL CASE. In the special case only where both the following conditions are true, Procurement Officer’s signature on the Acceptance is Contractor’s authorization to perform and therefore no Order is required: (a) the Contract is identified as being a “single-agency/single-project” contract in the Special Terms and

Conditions and (b) the Contract was created in Arizona Procurement Portal as something other than a “Master/ Blanket” type.

3.15.5 NO MINIMUMS OR COMMITMENTS. Unless expressly stated otherwise in the

Special Terms and Conditions: (a) Contractor shall not impose any minimum dollar amount, item count, services volume, or services duration on Orders; (b) State makes no commitment of any kind concerning the quantity or monetary value of activity actually initiated or completed during the term of the Contract; (c) Contractor shall only deliver or perform as authorized by Orders; and (d) State is not limited as to the number of Orders it may issue for the Contract. For clarity of intent, the foregoing applies equally whether an Eligible Agency issues the Order or, if applicable, a Co-Op

Buyer issues it.

3.15.6 NON-CONTRACTED MATERIALS OR SERVICES. Any attempt to knowingly represent for sales, marketing, or related purposes that goods or services not specifically awarded are under a State contract is a violation of the Contract and law.

3.16 Statewide Contract

Provisions

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3.17 Multiple-Use

Provisions

Delete

3.18 Transitions Delete

3.19 Other

Contractors

State may undertake with its own forces or award other contracts to the same or other vendors for additional or related work; in such cases, Contractor shall cooperate fully with State’s employees and such other vendors and carefully fit, connect, accommodate, adjust, or sequence its work to the related work by others. Where the

Contract requires handing-off Contractor’s work to others, Contractor shall cooperate as State instructs regarding the necessary transfer of its work product, services, or records to State or the other vendors. Contractor shall not commit or permit any act that interferes with the State’s or other vendors’ performance of their work, provided that, State shall enforce the foregoing section equitably among all its vendors so as not impose an unreasonable burden on any one of them.

3.20 Work on State

Premises

3.20.1 COMPLIANCE WITH RULES. Contractor is responsible for ensuring that its personnel comply with State’s rules, regulations, policies, documented practices, and documented operating procedures while delivering or installing Materials or performing

Services on State’s grounds or in its facilities. For clarity of intent, the foregoing means that if Contractor is required to comply with certain security requirements in order to deliver, install, or perform at that particular location, then it shall do so nonetheless and without entitlement to any additional compensation or additional time for performance if those particular requirements are not expressly stated in the Contract. Contractor is reminded that violation of the prohibition under A.R.S. § 13-1502 against possession of weapons on State’s property by anyone for whom Contractor is responsible is a material breach of contract and grounds for termination for default.

3.20.3 PROTECTION OF FACILITIES AND GROUNDS. Contractor shall deliver or install the Materials and perform the Services without damaging any State facilities or grounds. Contractor shall repair or replace any damage it does cause promptly and at its own expense, subject to whatever instructions and restrictions State needs to make to prevent inconvenience or disruption of operations. If Contractor fails to make the necessary repairs or replacements and do so in a timely manner, State will be entitled to exercise its remedies under paragraph 8.5 [Right of Offset].

3.21 Advertising, Publishing and Promotion of Contract

Contractor shall not advertise, promote, or otherwise use information concerning the

Contract for commercial benefit without the prior written approval of Procurement

Officer, which approval Procurement Officer may withhold at his or her discretion.

3.22 Limitation of

Liability

Neither party shall be liable for any indirect, special, incidental or consequential damages whether in contract, tort or under any other legal theory arising out of the claims brought by either party in connection with this contract. In no event shall the liability of the party hereunder exceed the amount of the contract.

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4.0 Mandatory Contract Provisions for the State of Arizona

4.1 Non-Availability of

Funds

Every payment obligation of the Department under this Agreement is conditioned upon the availability of funds appropriated and allocated for the payment of such obligation. If funds are not appropriated, allocated and available or if the appropriation is changed by the legislature resulting in funds no longer being available for the continuance of this

Agreement, this Agreement may be terminated by the Department or any other agency of the State of Arizona at the end of the period for which funds are available. No liability shall accrue to the Department or any other agency of the State of Arizona in the event this provision is exercised, and neither the Department nor any other agency of the State of Arizona shall be obligated or liable for any future payments or for any damages as a result of termination under this paragraph.

4.2 Record

Retention and Audit

Pursuant to A.R.S. §§ 35-214 and 35-215, the Contractor shall retain all records relating to this Agreement for a period of five years after completion of the Agreement. All records shall be subject to inspection and audit by the State of Arizona at reasonable times. Upon request, the Contractor shall produce the original of any or all such records at the offices of the Department.

4.3 Conflict of

Interest

The Requirements of A.R.S. § 38-511 apply to this Agreement. The Department may cancel this Agreement, without penalty or further obligation, if any person significantly involved in initiating, negotiating, securing, drafting or creating this Agreement on behalf of the Department is, at any time while this Agreement or any extension is in effect, an employee, agent or consultant of Contractor with respect to the subject matter of this

Agreement.

4.4 Non-

Discrimination

Contractor shall comply with Executive Order 2009-9, which mandates that all persons, regardless of race, color, religion, sex, age, or national origin shall have equal access to employment opportunities, and all other federal and state laws, rules and regulations regarding non-discrimination and equal opportunity including the Americans with

Disabilities Act. Contractor shall take affirmative action to ensure that applicants for employment and employees are not discriminated against due to race, creed, color, religion, sex, national origin or disability.

4.5 E-Verify Pursuant to A.R.S. §§ 41-4401, Contractor warrants compliance with all Federal immigration laws and regulations relating to employees and warrants its compliance with

AAC Section A.R.S. § 23-214, Subsection A. Contractor acknowledges that under A.R.S.

§§ 41-4401, State retains the legal right to inspect the papers of any Contractor employee who works under the contract of Arizona to ensure the Contractor is in compliance with the foregoing warranty and understands that a breach of the foregoing warranty shall be deemed a material breach of the Contract that is subject to the penalties up to an including termination of the Contract.

4.6 Antitrust

Violations

Contractor assigns to the Department any claim for overcharges resulting from antitrust violations to the extent that such violations concern materials or services supplied by third parties to Contractor toward fulfillment of this Agreement.

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4.0 Mandatory Contract Provisions for the State of Arizona

4.7 Applicable Law This Agreement shall be construed in accordance the laws of the State of Arizona.

4.8 Arbitration The parties to this Agreement agree to resolve all disputes arising out of or relating to this Agreement through arbitration, after exhausting applicable administrative review, to the extent required by A.R.S. § 12-1518 except as may be required by other applicable statutes.