Counter_Tools_Signed_AG24-0019_09202023_Executed.pdf

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AGREEMENT State of Arizona

Office of the Attorney General Procurement Section 2005 N Central Ave

Phoenix, Arizona 85004 Project Name: Tobacco Enforcement Monitoring Software System

Project #: AG24-0019

1. Authority to Contract:

This Contract is issued in accordance with A.R.S. § 41-2537 for the Office of the Attorney General.

2. Purpose of Agreement

The Office of the Arizona Attorney General’s Tobacco Enforcement Monitoring software system requires annual maintenance and support.

3. AGO Responsibilities

The AGO agrees to pay the Contractor the fee(s) described in the Cost Schedule of this agreement.

4. Term of Contract

The term of the Contract shall commence upon October 16, 2023 and terminate on October 15, 2024, unless canceled, terminated or extended as otherwise provided herein.

5. Contract Extension

Any resultant contract may be extended for supplemental periods of up to a maximum of 48 months by written contract amendment. If AGO exercises such rights, all terms, conditions and provisions of the original contract shall remain in effect and apply during the renewal period, with the possible exception of price

6. Invoices and Payment:

Payments shall comply with the requirements of A.R.S. Titles 35 and 41, Net 30 days. Upon receipt and acceptance of goods or services, the Contractor shall submit a complete and accurate invoice for payment from the State within thirty

(30) days.

7. Invoice Format

Invoices shall clearly indicate the work accomplished and submitted to the AGO on a monthly basis. The total amount for each task billed must be itemized on each invoice. Contract and/or Purchase Order numbers should be included. The contractor shall submit invoices to the Office of the Attorney General, Attention: Accounts Payable, 2005 N Central Ave, Phoenix, AZ 85004 or Accounting@azag.gov.

8. Accounting and Auditing

Contractor shall maintain accurate and complete accounting and financial records and vouchers in support of all cost and service billings to the Office of the Attorney General in accordance with generally accepted accounting principles and practices. The Office of the Attorney General, or its audit representative, shall have the right at any reasonable time to examine and audit the records, vouchers, and their source documents without limitation which serve as a basis for compensation under this Agreement. Said records shall be available in Phoenix, Arizona for the Office of the Attorney General's inspection and audit for five years after completion or termination of the services under this Agreement.

9. Independent Contractor

This contract is for the contractor to provide work under a service agreement with the State and not as an employee or agent of the State. The contractor is solely and exclusively responsible, legally and financially, for wages, per diem, taxes, mailto:Accounting@azag.gov

Procurement Section 2005 N Central Ave

Phoenix, Arizona 85004 Project Name: Tobacco Enforcement Monitoring Software System

Project #: AG24-0019

Social Security payments, health benefits, insurance, bonds, Workmen's Compensation costs, and any other fees or expenses the contractor may be required to pay in his normal course of business.

10. Documents Incorporated by Reference

The State of Arizona’s Uniform Instructions to Offerors and Uniform Terms and Conditions are incorporated into this Contract. Offerors are encouraged to obtain these documents. Offerors may obtain copies by visiting the Arizona State Procurement Office (SPO) web site at: https://spointra.az.gov/resources/standard-forms-and-documents or by calling the Office of the Attorney General, Procurement at (602) 542-7986.

11. Termination at Will

At the sole discretion of the Office of the Attorney General, the Office of the Attorney General may terminate this Agreement at any time, or may terminate all or any portion of the Services not then completed by giving the other party written notice of termination. Upon receipt of notice of termination, Contractor, unless the notice requires otherwise, shall discontinue performance of the Services on the date and to the extent specified in the notice, except those Services necessary to preserve and protect the work product of the Services already performed, and otherwise minimize costs to the State. Payment for Services already completed or in the process of completion shall be adjusted between Contractor and the Office of the Attorney General, in a fair and reasonable manner, but such payment shall exclude any allowance for unperformed Services or anticipated profits thereon. Such payment for Services already completed or in the process of completion shall be the total compensation due to Contractor for Termination at Will by either party.

12. Termination for Cause

The Office of the Attorney General may declare this Agreement canceled for default by notifying Contractor in writing should Contractor at any time (i) violate any part of this Agreement, (ii) fail to supply sufficient properly skilled personnel, material or equipment of the quality or quantity to properly perform the Services, (iii) fail to provide services in the most cost-effective manner. Without limiting or waiving any other remedies the Office of the Attorney General may have, Contractor shall compensate the Office of the Attorney General for costs (whether they arise before or after completion of the Services) arising out of any breach by Contractor or arising out of any

13. Laws and Regulations

Contractor and its employees shall at all times comply with all applicable federal, state and local laws, ordinances, statutes, rules and regulations. Contractor shall hold the State and the Office of the Attorney General harmless from loss, cost or damage by reason of any actual or alleged violation thereof arising out of Contractor's employees or Contractor’s failure to so comply.

14. Laws and Regulations

Contractor and its employees shall at all times comply with all applicable federal, state and local laws, ordinances, statutes, rules and regulations. Contractor shall hold the State and the Office of the Attorney General harmless from loss, cost or damage by reason of any actual or alleged violation thereof arising out of Contractor's employees or Contractor’s failure to so comply.

15. Confidentiality of Records

The contractor shall establish and maintain procedures and controls that are acceptable to the AGO for the purpose of assuring that no information contained in its records or obtained from the State or from others carrying out its functions under the contract shall be used by or disclosed by the contractor, its agents, offices, employees, subcontractors, except https://spointra.az.gov/resources/standard-forms-and-documents

Procurement Section 2005 N Central Ave

Phoenix, Arizona 85004 Project Name: Tobacco Enforcement Monitoring Software System

Project #: AG24-0019 as required to efficiently perform duties under the contract. Persons requesting such information shall be referred to the AGO. Contractor also agrees that any information pertaining to individual persons shall not be divulged other than to employees or officers of the contractor as needed for the performance of duties under the contract, unless otherwise agreed to in writing by the AGO.

16. Treatment of Confidential Business Information (CBI)

AGO may turn over to the Contractor Confidential Business Information (CBI) necessary to carry out the work required under the Contract or the Contractor may be exposed to CBI while working with the AGO. The Contractor and the Contractor’s employees agree to use the CBI only under the following conditions:

19.1 Use only for the purposes of carrying out the work required by the Contract;

19.2 Not disclose the information to anyone other than properly cleared employees;

19.3 Return the CBI to AGO whenever the information is no longer required by the Contractor for performance of the work, required by the Contract, or upon completion / termination of the Contract.

17. Licenses and Permits

The contractor shall maintain in current status all federal, state, and local licenses and permits required for the operation of the business and conducted by the contractor and for the completion of the work specified in the Scope of Work.

18. Non-Exclusive Contract

AGO has the right to procure the services listed herein from Contractors other than those awarded Contracts pursuant to this Solicitation when necessary to meet the requirements of AGO.

19. Appropriation of funds

Every payment obligation of the Agency under this Contract is conditioned upon the availability of funds appropriated or allocated for the payment of such obligation. If funds are not allocated and available for the continuance of this Contract, this Contract may be terminated by the Agency at the end of the period for which funds are available. No liability shall accrue to the Agency or the State of Arizona in the event this provision is exercised, and neither the Agency nor the State shall be obligated or liable for any future payments or for any damages as a result of termination under this paragraph.

20. Key Personnel

The contractor agrees to utilize only experienced, responsible, and capable people in the performance of this contract.

The contractor shall bear all transitional expenses incurred for any costs associated with removing or replacing key personnel who are performing work under this contract.

21. Background Check of Contractor’s Employees

The AGO may require all personnel, contractors, employees, or subcontractors, working with the AGO to submit to and successfully pass fingerprinting and background checks.

22. Removal of Contractor's Employees

The AGO may require the contractor to remove from an assignment employees who endanger persons, property or

Procurement Section 2005 N Central Ave

Phoenix, Arizona 85004 Project Name: Tobacco Enforcement Monitoring Software System

Project #: AG24-0019 whose continued employment under this contract is inconsistent with the interests of the AGO.

23. Availability of Contractor

The contractor shall be available immediately upon receipt of the Notice to Proceed and remain available to the AGO throughout the period of performance as stated in the contract.

24. Software Ownership

24.1 The Contractor shall maintain all title, copyright, and other proprietary rights in the Software, except as expressly provided herein. AGO does not acquire any rights, express or implied, in the Software, other than those specified in this Contract.

24.2 Contractor hereby warrants and represents to AGO that Contractor is the owner of the Software or otherwise has the right to sell the Software or grant a perpetual license to the Software to AGO without violating any rights of any third party, and that there is currently no actual or threatened suit by any such third party based on an alleged violation of such right by Contractor.

24.3 Rights in Data - Data originating from the contract shall be "works for hire" as defined by the U.S. Copyright Act of 1976 and shall be owned by the AGO.

25. Software Upgrades and Enhancements

25.1 At AGO’s option, the Contractor shall be required during the duration of this contract to supply AGO at no added cost:

25.2 Updated versions of the Software to operate on upgraded versions of operating systems;

25.3 Updated versions of the Software which encompass improvements, extensions, or other changes which are improvements or extensions of the original products supplied to the AGO: and

25.4 Interface modules which are developed by the Contractor for interfacing the Software to other Software products.

25.5 All of Contractor’s obligations in this Contract, including but not limited to warranty, support and maintenance obligations, apply with full force to software upgrades and enhancements.

26. Other Warranties

26.1 The Physical Media Warranty

a) Contractor warrants to AGO that each licensed copy of the Software provided by Contractor is and will be free from physical defects in the media that tangibly embodies the copy (the "Physical Media Warranty"). The Physical Media Warranty does not apply to defects discovered more than one year after the Date of Acceptance of the Software copy by the AGO.

b) The Physical Media Warranty does not apply to defects arising from acts of non-Contractor employees, agents, or Subcontractors after the media has left Contractor's control in cases of theft, vandalism, fire, water, acts of God or other perils beyond the control of Contractor.

c) AGO shall be entitled to replacement by Contractor, at Contractor's expense including shipping and handling costs, of any Software copy provided by Contractor that does not comply with this warranty.

Procurement Section 2005 N Central Ave

Phoenix, Arizona 85004 Project Name: Tobacco Enforcement Monitoring Software System

Project #: AG24-0019

26.2 No Surreptitious Code Warranty

a) Contractor warrants to AGO that no copy of the Software provided to AGO contains or will contain any Self-Help Code or any Unauthorized Code as defined below. The warranty is referred to in this Contract as the "No Surreptitious Code Warranty."

b) As used in this Contract, "Self-Help Code" means any back door, time bomb, drop dead device, or other Software routine designed to disable a computer program automatically with the passage of time or under the positive control of a person other than AGO. Self-Help Code does not include Software routines in a computer program, if any, designed to permit an Owner of the computer program (or other person acting by authority of the Owner) to obtain access to AGO's computer system(s) (e.g. remote access via modem) for purposes of maintenance or technical support.

c) As used in this Contract, "Unauthorized Code" means any virus, Trojan horse, worm or other Software routines or components designed to permit unauthorized access to disable, erase, or otherwise harm Software, Equipment, or data; or to perform any other such actions. The term Unauthorized Code does not include Self-Help Code.

d) Contractor will defend AGO against any claim, and indemnify AGO against any loss or expense arising out of any breach of the No Surreptitious Code Warranty.

26.3 Compliance with Standards.

Contractor represents and warrants that all Software and elements thereof, including but not limited to, documentation and source code, shall meet and be maintained by Contractor to conform to applicable industry and State standards.

27. Offshore Performance of Work Prohibited

Due to security and identity protection concerns, all services under this contract shall be performed within the borders of the United States. All storage and processing of information shall be performed within the borders of the United States. This provision applies to work performed by subcontractors.

28. Indemnification

To the fullest extent permitted by law, Contractor shall defend, indemnify, and hold harmless the State of Arizona, and its departments, agencies, boards, commissions, universities, officers, officials, agents, and employees (hereinafter referred to as “Indemnitee”) from and against any and all claims, actions, liabilities, damages, losses, or expenses (including court costs, attorneys’ fees, and costs of claim processing, investigation and litigation) (hereinafter referred to as “Claims”) for bodily injury or personal injury (including death), or loss or damage to tangible or intangible property caused, or alleged to be caused, in whole or in part, by the negligent or willful acts or omissions of Contractor or any of its owners, officers, directors, agents, employees or subcontractors. This indemnity includes any claim or amount arising out of, or recovered under, the Workers’ Compensation Law or arising out of the failure of such Contractor to conform to any federal, state, or local law, statute, ordinance, rule, regulation, or court decree. It is the specific intention of the parties that the Indemnitee shall, in all instances, except for Claims arising solely from the negligent or willful acts or omissions of the Indemnitee, be indemnified by Contractor from and against any and all claims. It is agreed that Contractor will be responsible for primary loss investigation, defense, and judgment costs where this indemnification is applicable. In consideration of the award of this contract, the Contractor agrees to waive all rights of subrogation against the State of Arizona, its officers, officials, agents, and employees for losses arising from the work performed by the Contractor for the State of Arizona.

This indemnity shall not apply if the contractor or sub-contractor(s) is/are an agency, board, commission or university of

Procurement Section 2005 N Central Ave

Phoenix, Arizona 85004 Project Name: Tobacco Enforcement Monitoring Software System

Project #: AG24-0019 the State of Arizona.

29. Insurance Requirements

Contractor and subcontractors shall procure and maintain, until all of their obligations have been discharged, including any warranty periods under this Contract, insurance against claims for injury to persons or damage to property arising from, or in connection with, the performance of the work hereunder by the Contractor, its agents, representatives, employees or subcontractors.

The Insurance Requirements herein are minimum requirements for this Contract and in no way limit the indemnity covenants contained in this Contract. The State of Arizona in no way warrants that the minimum limits contained herein are sufficient to protect the Contractor from liabilities that arise out of the performance of the work under this Contract by the Contractor, its agents, representatives, employees or subcontractors, and the Contractor is free to purchase additional insurance.

30. Minimum Scope and Limits of Insurance:

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

30.1 Commercial General Liability (CGL) – Occurrence Form

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

• General Aggregate $1,000,000

• Products – Completed Operations Aggregate $ 500,000

• Personal and Advertising Injury $ 500,000

• Damage to Rented Premises $ 25,000

• Each Occurrence $ 500,000

The policy shall be endorsed, as required by this written agreement, to include the State of Arizona, and its departments, agencies, boards, commissions, universities, officers, officials, agents, and employees as additional insureds with respect to liability arising out of the activities performed by or on behalf of the Contractor.

Policy shall contain a waiver of subrogation endorsement, as required by this written agreement, in favor of the State of Arizona, and its departments, agencies, boards, commissions, universities, officers, officials, agents, and employees for losses arising from work performed by or on behalf of the Contractor.

30.2 Business Automobile Liability

Bodily Injury and Property Damage for any owned, hired, and/or non-owned automobiles used in the performance of this Contract.

• Combined Single Limit (CSL) $ 500,000

a. Policy shall be endorsed, as required by this written agreement, to include the State of Arizona, and its departments, agencies, boards, commissions, universities, officers, officials, agents, and employees as additional insureds with respect to liability arising out of the activities performed by, or on behalf of, the Contractor involving automobiles owned, hired and/or non-owned by the Contractor.

b. Policy shall contain a waiver of subrogation endorsement as required by this written agreement in favor of the State of Arizona, and its departments, agencies, boards, commissions, universities, officers, officials, agents, and employees for losses arising from work performed by or on behalf of the Contractor.

Procurement Section 2005 N Central Ave

Phoenix, Arizona 85004

30.3 Workers’ Compensation and Employers' Liability

• Workers' Compensation Statutory

• Employers' Liability

Each Accident $ 500,000 Disease – Each Employee $ 500,000 Disease – Policy Limit $ 500,000

a. Policy shall contain a waiver of subrogation endorsement, as required by this written agreement, in favor of the State of Arizona, and its departments, agencies, boards, commissions, universities, officers, officials, agents, and employees for losses arising from work performed by or on behalf of the Contractor.

b. This requirement shall not apply to each Contractor or subcontractor that is exempt under A.R.S. § 23-901, and when such Contractor or subcontractor executes the appropriate waiver form (Sole Proprietor or Independent Contractor).

30.4 Technology Errors & Omissions Insurance

• Each Claim $ 1,000,000

• Annual Aggregate $ 1,000,000

a. Such insurance shall cover any, and all errors, omissions, or negligent acts in the delivery of products, services, and/or licensed programs under this contract.

b. Coverage shall include copyright infringement, infringement of trade dress, domain name, title or slogan.

c. In the event that the Tech E&O insurance required by this Contract is written on a claims-made basis, Contractor warrants that any retroactive date under the policy shall precede the effective date of this Contract and, either continuous coverage will be maintained or an extended discovery period will be exercised for a period of two (2) years, beginning at the time work under this Contract is completed.

30.5 Additional Insurance Requirements

The policies shall include, or be endorsed to include, as required by this written agreement, the following provisions:

The Contractor's policies, as applicable, shall stipulate that the insurance afforded the Contractor shall be primary and that any insurance carried by the Department, its agents, officials, employees or the State of Arizona shall be excess and not contributory insurance, as provided by A.R.S. § 41-621 (E).

Insurance provided by the Contractor shall not limit the Contractor’s liability assumed under the indemnification provisions of this Contract.

30.6 Notice of Cancellation

Applicable to all insurance policies required within the Insurance Requirements of this Contract, Contractor’s insurance shall not be permitted to expire, be suspended, be canceled, or be materially changed for any reason without thirty (30) days prior written notice to the State of Arizona. Within two (2) business days of receipt, Contractor must provide notice to the State of Arizona if they receive notice of a policy that has been or will be suspended, canceled, materially changed for any reason, has expired, or will be expiring. Such notice shall be sent directly to the Department and shall be mailed, emailed, hand delivered or sent by facsimile transmission to (State Representative’s Name, Address & Fax Number).

Procurement Section 2005 N Central Ave

Phoenix, Arizona 85004

30.7 Acceptability of Insurers

Contractor’s insurance shall be placed with companies licensed in the State of Arizona or hold approved non-admitted status on the Arizona Department of Insurance List of Qualified Unauthorized Insurers. Insurers shall have an “A.M. Best” rating of not less than A- VII. The State of Arizona in no way warrants that the above-required minimum insurer rating is sufficient to protect the Contractor from potential insurer insolvency.

30.8 Verification of Coverage

Contractor shall furnish the State of Arizona with certificates of insurance (valid ACORD form or equivalent approved by the State of Arizona) evidencing that Contractor has the insurance as required by this Contract. An authorized representative of the insurer shall sign the certificates.

All such certificates of insurance and policy endorsements must be received by the State before work commences.

The State’s receipt of any certificates of insurance or policy endorsements that do not comply with this written agreement shall not waive or otherwise affect the requirements of this agreement.

Each insurance policy required by this Contract must be in effect at, or prior to, commencement of work under this Contract. Failure to maintain the insurance policies as required by this Contract, or to provide evidence of renewal, is a material breach of contract.

All certificates required by this Contract shall be sent directly to the Department. The State of Arizona project/contract number and project description shall be noted on the certificate of insurance. The State of Arizona reserves the right to require complete copies of all insurance policies required by this Contract at any time.

30.9 Subcontractors

Contractor’s certificate(s) shall include all subcontractors as insureds under its policies or Contractor shall be responsible for ensuring and/or verifying that all subcontractors have valid and collectable insurance as evidenced by the certificates of insurance and endorsements for each subcontractor. All coverages for subcontractors shall be subject to the minimum Insurance Requirements identified above. The Department reserves the right to require, at any time throughout the life of this contract, proof from the Contractor that its subcontractors have the required coverage.

30.10 Approval and Modifications

The Contracting Agency, in consultation with State Risk, reserves the right to review or make modifications to the insurance limits, required coverages, or endorsements throughout the life of this contract, as deemed necessary.

Such action will not require a formal Contract amendment but may be made by administrative action.

30.11 Exceptions

In the event the Contractor or subcontractor(s) is/are a public entity, then the Insurance Requirements shall not apply. Such public entity shall provide a certificate of self-insurance. If the Contractor or subcontractor(s) is/are a State of Arizona agency, board, commission, or university, none of the above shall apply.

COST SCHEDULE State of Arizona

Procurement Section 2005 N Central Ave

Phoenix, Arizona 85004

Cost Schedule

Item Description Total

Annual maintenance pricing for maintenance period 10/16/2023-10/15/2024.

Billed at $5,280 per month. $63,360.00

Subtotal $63,360.00

Tax

Grand Total $63,360.00