CTR061869_Contract_Documents_-_Federal.pdf

Procurement

OFFER AND ACCEPTANCE

Solicitation No: BPM004124 Available online at https://app.az.gov

Rev 04/2020

OFFER

TO THE STATE OF ARIZONA:

The undersigned hereby offers and agrees to perform in compliance with all terms, conditions, specifications and amendments of this solicitation and any written exceptions in the offer. Signature also acknowledges receipt of all pages indicated in the Table of Contents.

Mayer Brown LLP

Offeror (Company) Name Signature of Person Authorized to Sign Offer

71 South Wacker Drive

Stephanie Wagner 02-23-2022

Address Printed Name Date

Chicago IL 60606

Partner

City State Zip Title swagner@mayerbrown.com

+1 312 701 8475

Email Address Phone Number swagner@mayerbrown.com

+1 312 706 9350

Company Email Address Fax Number

By signature in the Offer section above, the Offeror certifies that the submission of the Offer did not involve collusion or other anticompetitive practices.

ACCEPTANCE OF OFFER (FOR DEPARTMENT USE ONLY)

The Contractor is now bound to perform based upon Contract Number _________________________________including all terms, conditions, specifications, amendments, etc., and the Contractor's offer as accepted by the state.

The Contractor is hereby cautioned not to commence any billable work or provide any material, service or construction under this contract until contractor receives a purchase order document.

State of Arizona

Effective this day of 20

Procurement Officer Awarded Date

DocuSign Envelope ID: 8DA37A5B-A203-4CED-BCEA-A5622BA1F2B6

August 22

8/26/2022

CTR061869

26th https://app.az.gov/

ARIZONA DEPARTMENT OF TRANSPORTATION

1739 W. Jackson Street, MD 100P

Phoenix, AZ 85007 602.712.7211

Solicitation Amendment Summary

SOLICITATION NO.: BPM004124 AMENDMENT NO.: 1

DESCRIPTION: Legal Advisory Services for Alternative Project Delivery

Rev. 04/2020

Pursuant to the Uniform Instructions to Offerors, Item B.6, Solicitation Amendments, the above referenced solicitation shall be amended as follows:

1. Scope of Work, Specific Requirements, Paragraph 4.2.24 is revised to read as follows:

Advise and represent the Department in any contract disputes and dispute resolution services, including negotiation, mediation, arbitration, and litigation.

2. Special Instructions to Offerors, Submitting Offers in APP, Paragraph 4.4.1 is revised to read as follows:

Offerors shall submit pricing under the Items tab within APP. Unit price shall be an all-inclusive maximum hourly rate, including all indirect costs for labor, equipment and materials necessary to complete all work in accordance with the requirements of the solicitation.

3. The following is hereby added to each APP Item Label/classification: … (All-inclusive maximum hourly rate).

4. The following label/classification is hereby added to the APP Items: Administrative Support (All-inclusive maximum hourly rate).

5. The solicitation due date is changed from February 23, 2022 to February 25, 2022.

6. All other terms, conditions and provisions of this solicitation remain unchanged.

Rev. 04/2020

STATE OF ARIZONA

ARIZONA DEPARTMENT OF TRANSPORTATION

1739 W. Jackson St., Ste. A Phoenix, AZ 85007

REQUEST FOR PROPOSAL

SOLICITATION NUMBER: BPM004124

DESCRIPTION: Legal Advisory Services for Alternative Project Delivery

QUESTIONS: Inquiries regarding the solicitation are to be submitted online through the State’s e-Procurement system, Arizona Procurement Portal (APP) (https://app.az.gov/) using the Discussion Forum tab.

OFFERORS ARE STRONGLY ENCOURAGED TO READ THE ENTIRE SOLICITATION.

Bambi Brenden, CPPB Procurement Officer Phone: 602-712-4294 Email: bbrenden@azdot.gov

This solicitation is issued in accordance with A.R.S. §41-2534 and A.A.C. R2-7-C301 et seq., Competitive Sealed Proposals.

“An Equal Opportunity Agency”

The Arizona Department of Transportation, in accordance with the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252.42 U.S.C. §§ 2000d-4) and the Americans with Disabilities Act (ADA), hereby notifies all bidders that it will affirmatively ensure that any contract entered into pursuant to this advertisement, disadvantaged business enterprises will be afforded full and fair opportunity to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, national origin in consideration for an award.

Persons that require a reasonable accommodation based on language or disability should contact ADOT’s Procurement Office by phone (602) 712-2089. Requests should be made as early as possible to ensure the State has an opportunity to address the accommodation.

Las personas que requieran asistencia (dentro de lo razonable) ya sea por el idioma o discapacidad deben ponerse en contacto con ADOT (602) 712-2089.

TABLE OF CONTENTS

Solicitation No: BPM004124 Per Amendment 1

Available online at

SECTION PAGE

Notice 1

Table of Contents 2

Scope of Work 3

Special Terms and Conditions 9

Uniform Terms and Conditions 20

Federal Provisions 30

EXHIBITS

1 - Title VI/Non-Discrimination Assurances Appendix A 55

2 - Title VI/Non-Discrimination Assurances Appendix E 56

3 - Certification of Final Disadvantaged Business Enterprise (DBE) Payment 310PS 57

4 - Quarterly Usage Report 58

SCOPE OF WORK

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1. Statement of Need

1.1. Pursuant to the Arizona Procurement Code, Arizona Revised Statutes (A.R.S.) § 41‐2501 et seq., the State of Arizona Department of Transportation (Department) requires external legal advisory services for alternative project delivery methods, including Public Private Partnerships (P3s).

1.2. The Department’s Major Projects, P3 Initiatives, and International Affairs Group is seeking the services of one or more qualified law firms, hereinafter referred to as Contractor, for legal advisory services to assist the Department with its Major Projects / P3 program and implementation of A.R.S. Title 28, Chapter 22. These statutes grant the Department the authority to use P3s as a method to deliver transportation and ancillary projects related to the Department’s mission. The Contractor shall review A.R.S. Title 28, Chapter 22 and become familiar with this authority. The Contractor shall assist the Department and its team of advisors in identifying potential projects, evaluating alternative project delivery methods, procuring projects, delivering projects, and all other legal aspects of the Major Projects / P3 program.

2. Introduction and Background

2.1. The Department retains a team of advisors that consist of a program manager/technical advisor, financial advisor, legal advisor, and a traffic and revenue advisor. These advisors work together to assist the Department in developing and modifying guidelines, establishing procedures, identifying and evaluating potential projects, procuring projects, advising on issues related to the Major Projects / P3 program and its projects, and other related activities. The Department is looking at a broad range of possible alternative delivery opportunities, with projects falling in the broad categories of roadways, bridges, facilities, land transfers, maintenance, and enforcement.

According to A.R.S. § 28-7703, potential delivery methods that the Department may consider using under its Major Projects / P3 program include:

2.1.1. Predevelopment Agreements leading to other implementing agreements.

2.1.2. Design-Build Agreements.

2.1.3. Design‐Build‐Maintain Agreements.

2.1.4. Design‐Build‐Finance‐Operate Agreements.

2.1.5. Design‐Build‐Operate‐Maintain Agreements.

2.1.6. Design‐Build‐Finance‐Operate‐Maintain Agreements.

2.1.7. Concessions providing for the private partner to design, build, operate, maintain, manage, or lease an eligible facility.

2.1.8. Any other project delivery method or agreement or combination of methods or agreements that the Department determines will serve the public interest.

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2.2. As part of its Major Projects / P3 program, the Department reviews potential transportation projects to determine whether they should be procured as an alternative delivery project. P3 projects on eligible facilities, as defined in A.R.S. § 28‐7701, can be initiated from a variety of sources, including nongovernmental entities, through the filing of an unsolicited proposal.

2.3. Potential alternative delivery projects are evaluated based on a number of criteria, which are described below. These criteria serve as general guidelines, all of which may or may not be applicable to certain projects. As the Department continues to develop its Major Projects / P3 program and evaluates further projects, the alternative delivery project evaluation criteria will likely continue to evolve. As deemed appropriate by the Department, the applicability or weightings of the criteria may change, and additional criteria may be considered, including, but not limited to:

2.3.1. Consistency with the State Long-Range Transportation Plan and State Transportation

Improvement Program

2.3.2. Network Continuity Considerations

2.3.3. Constructability

2.3.4. Congestion Relief Potential

2.3.5. Potential Safety Impacts

2.3.6. Social Impacts

2.3.7. Environmental Impacts and Status

2.3.8. Project Revenue Potential

2.3.9. Toll Operations Viability

2.3.10. Project Costs

2.3.11. Capital Costs

2.3.12. Financial Feasibility

2.3.13. Stakeholder and Citizenry Acceptability

2.3.14. Attractiveness to the Private Sector

2.3.15. Other factors

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3. General Requirements

3.1. The Department desires to be at the forefront of innovative methods to deliver transportation projects and is seeking one or more experienced and expert legal firms for its Major Projects / P3 program. The Contractor shall be a firm that has the expertise and experience in advising clients similar to the Department in the development and finance of transportation projects and P3 agreements.

3.2. The Contractor shall research, analyze, negotiate, draft, and provide legal advice to the Department and its advisors in specialized areas incident to a P3 for a transportation facility.

3.3. The Contractor shall assist the Department in managing the Department’s Major Projects / P3 program. Services may include, but are not be limited to, providing any legal advice and action necessary in the Department’s project development and delivery processes, legislative issues, and other issues related to the Major Projects / P3 program

3.4. The Contractor shall serve as a key member of the Department’s team of advisors on its Major Projects / P3 program, and work as part of the team to provide the Department with a full range of advice on issues surrounding the Major Projects / P3 program.

3.5. In accordance with A.R.S. § 28-7704(G), the Contractor’s lead Consulting Attorney shall have a minimum five (5) years of experience working on evaluation, negotiation, and development of P3 projects on eligible facilities, as defined in A.R.S. § 28-7701.

4. Specific Requirements

4.1. The Contractor shall perform a variety of services and provide advice to the Department on both programmatic and project‐related legal issues pertaining to the Major Projects / P3 program.

Specific services may include, but are not limited to:

4.1.1. Provide ongoing advice regarding legal issues related to the P3 industry and the

Department’s Major Projects / P3 program.

4.1.2. Provide insight on legislative changes that might impact issues related to the Major Projects / P3 program.

4.1.3. Assist in evaluating the potential impact of changes in federal and state law, regulations, or public policy initiatives.

4.1.4. Provide comments on proposals and actions of the United States Department of Transportation (USDOT), Federal Highway Administration (FHWA), Federal Transit Administration (FTA), and other federal agencies related to the financing and delivery of transportation projects.

Available online at

4.1.5. Assist in analyzing projects using established project screening methodologies and procedures to determine if alternative delivery or traditional methods are most appropriate for procurement.

4.1.6. As required, assist in developing, establishing, and updating Major Projects / P3 program procedures, guidelines, project evaluation criteria, and other aspects of the Major Projects / P3 program.

4.1.7. Develop, prepare, and present legal briefing materials and reports to ensure communication with the Department and other key stakeholders.

4.1.8. Provide training to Department staff and other internal stakeholders on P3 best practices in the legal arena, including commercial and financial structures, risk allocation, and procurement strategies.

4.1.9. As appropriate, assist in the development of legal aspects of a programmatic approach to deliver the Major Projects / P3 program.

4.1.10. Provide other legal services, advice, and deliverables as necessary to meet the Department’s Major Projects / P3 program objectives, or as requested by the Department.

4.2. While the scope of services shall be specific to any potential alternative delivery project, whether solicited or unsolicited, which comes before the Department, the Contractor shall be prepared to:

4.2.1. Assist in developing the project procurement schedule and work plan.

4.2.2. Assist in the legal assessment of material risks, including assisting in developing risk matrices that reflect current market standards.

4.2.3. Assist in the structuring of the project, procurement, and financial approach.

4.2.4. Assist in drafting the Request for Qualifications (RFQ) and Request for Proposals (RFP).

4.2.5. Participate in the RFQ / RFP process, including attending one‐on‐one meetings with potential respondents and providing input to the Department’s responses to submitted questions.

4.2.6. Assist in the preparation of the RFQ and RFP evaluation guidelines.

4.2.7. Participate in and assist with oversight of the RFQ and RFP evaluations.

4.2.8. Assist in drafting contract documents.

4.2.9. Review and comment on legal and technical provisions.

4.2.10. Assist with legal analysis, response, and defense to any bid protests.

Available online at

4.2.11. Assist with negotiations with the apparent best value proposer and contract finalization.

4.2.12. Assist with the contract award, execution, and Notice to Proceed process.

4.2.13. Assist with applications and documentation associated with federal tolling authorization.

4.2.14. Assist with legal aspects of any P3 financing issues, including close of finance issues.

4.2.15. Assist with any National Environmental Policy Act related issues impacting the project or procurement.

4.2.16. Consult with the departments Risk Management on insurance requirements related to projects.

4.2.17. Assist with legal issues in the development of the tolling approach, tolling business rules, and tolling enforcement.

4.2.18. Assist with contract interpretation, analysis, and administration issues.

4.2.19. Assist with the change order and claims management strategy.

4.2.20. Review, analyze, and respond to concessionaire change order requests.

4.2.21. Review, analyze, and research the Department/concessionaire change order requests.

4.2.22. Assist in drafting, reviewing and negotiating change orders.

4.2.23. Assist with the FHWA change order approval process.

4.2.24. Advise and represent the Department in any contract disputes and dispute resolution services, including negotiation, mediation, arbitration, and litigation.

4.2.25. Assist with any other project‐related tasks requested by the Department.

5. Contractor’s Responsibilities

5.1. The Contractor shall coordinate with the Department and Office of the Attorney General and advise them on alternative delivery, P3, and project-related legal issues, as needed.

5.2. The Contractor shall be knowledgeable about alternative delivery, P3, and project-related transactions and laws.

5.3. The Contractor shall comply with applicable federal, state, and local laws pertaining to organizational and other conflicts of interests, as well as licensing requirements.

Available online at

5.4. The Contractor shall not be eligible to participate on any proposer team in connection with any project associated with the Department’s Major Projects / P3 program.

5.5. The Contractor shall not subcontract any of the work under this contract without prior written approval.

6. Department’s Responsibilities

6.1. Provide access to the Department’s personnel, offices, and computer information as required.

6.2. Provide required statutes, manuals, policies, procedures, organization charts, and records related to the Department’s issue positions and desired options.

6.3. Provide guidance and direction for all assignments.

6.4. Assist in scheduling and coordinating meetings with applicable involved parties.

6.5. Review and approve Contractor documents and reports.

6.6. Review and approve Contractor invoices for payment.

SPECIAL TERMS AND CONDITIONS

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1. CONTRACT TERM

The term of any resultant contract shall commence on the effective date of award and shall continue for a period of twelve (12) months thereafter, unless terminated, cancelled or extended as otherwise provided herein.

2. CONTRACT EXTENSION

By mutual written contract amendment, any resultant contract may be extended for supplemental periods of up to a maximum of forty-eight (48) months.

3. ELIGIBLE AGENCIES

This contract shall be for the exclusive use of the Arizona Department of Transportation.

4. NON-EXCLUSIVE CONTRACT

This contract shall be for the sole convenience of the Department. The Department reserves the right to obtain like goods or services from another source when necessary. The Off-Contract Purchase Authorization and subsequent procurement shall be consistent with the Arizona Procurement Code.

5. ORDERING PROCESS

The Department shall issue a purchase order to the Contractor. Each purchase order must cite the contract number. This purchase order shall be the only document required for the Department to order and the Contractor to deliver the material and/or service.

Any attempts to represent any material and/or service not specifically awarded as being under contract is a breach of the contract and a violation of the Arizona Procurement Code. Any such action is subject to the legal and contractual remedies available to the State inclusive of but not limited to contract cancellation, suspension and/or debarment of the Contractor.

6. INVOICING REQUIREMENTS

Separate invoices are required for each Task Assignment and will be submitted monthly or at the discretion of the ADOT project manager. Invoices shall include at a minimum:

Department Location’s Name and Address

Vendor Name, Remit to Address and Contact Information

Contract Number

Purchase Order Number

Invoice Number and Date

Date the items were shipped to the Department

Contract Line Item Number

Line Item Description or Item or Service

Available online at

Quantity Purchased

Line Item Unit of Measure

Price per Unit and Total per Unit

Catalog or Other Discount (if applicable)

Net Unit Price and Total per Unit (if applicable)

Applicable taxes

Applicable Shipping/Freight Charges

Total Invoice Amount Due

Invoices not sent to the proper address, or not containing the necessary and required information may delay payment. A Contractor whose payments are delayed due to improper invoicing shall make no claim against the Department or the State for late or finance charges.

The Department will make every effort to process payment within thirty (30) calendar days after acceptance of services. Delivery of the service to the Department does not constitute acceptance.

The date the Department accepts delivery of services shall be the valid date for starting the thirty (30) calendar day payment period.

Payment due dates, including discount periods, will be computed from the date of acceptance or date of correct invoice (whichever is later) to the date the Department’s warrant is mailed.

The Department will pay authorized reimbursables and subcontractor services at cost, with no markup.

Reimbursables include e-Discovery costs, legal research fees, filing fees, service fees, deposition costs, expert witness fees, local counsel fees, mediation fees, arbitration and trial fees, arbitration and trial-related fees, copying costs, and postage and overnight delivery costs, etc.

7. ESTIMATED USAGE

The Department anticipates considerable usage under this contract. The Department reserves the right to increase or decrease actual quantities ordered as circumstances may require. No guarantees are made concerning actual purchases under this contract.

8. PRICE REDUCTION

A price reduction adjustment may be offered at any time during the term of the contract and shall become effective upon notice through a written contract amendment.

9. PRICE INCREASE

The Department will review fully documented requests for price increases for any contract which will or has been in effect for twelve (12) months. The request shall be submitted no less than sixty (60) days prior to the contract renewal date. The Contractor shall provide fully documented information which supports the price increase request. Fully documented means that the request shall present detailed information and calculations that make it clear how the claimed increase has an impact on the contract unit prices. All

Available online at assumptions regarding cost factors that have an impact on the requested increase shall also be clearly identified and justified. The requested price increase must be based upon a cost increase that was clearly unpredictable at the time of the offer and can be shown to directly affect the price of the item concerned.

Any price increase adjustment request prior to the time of contract extension will be a factor in the extension review process. The Department will determine whether the requested price increase or an alternate option, is in the best interest of the State.

10. CONTRACT ADMINISTRATION

The contractor shall contact the Procurement Officer for guidance or direction in matters of contract interpretation or questions regarding the terms, conditions or scope of the contract.

11. NOTICES

All notices, requests, demands, consents, approvals, and other communications which may or are required to be served or given hereunder (for the purposes of this provisions collectively called “Notices”), shall be in writing and shall be sent by certified United States mail, return receipt requested, or by any other method that provides evidence of receipt, addressed to the party or parties to receive such notice as follows:

a. If intended for the State, to:

Arizona Department of Transportation, Procurement Group

1739 W. Jackson Street, MD 100P Phoenix, Arizona 85007-3276

b. If intended for the contractor, to the address as identified in the Contractor’s electronic vendor profile.

Or to such other address as either party may from time to time furnish in writing to the other by notice hereunder. Any notice so mailed shall be deemed to have been given as of the date such notice is received as shown on the return receipt. Furthermore, such notice may be given by delivering personally such notice, if intended for the State, to the Arizona Department of Transportation, Procurement Officer and, if intended for the Contractor, to the person named on the Offer & Contract Award of this contract, or to such other person as either party may from time to time furnish in writing to the other by notice hereunder. Any notice so delivered shall be deemed to have been given as of the date such notice is personally delivered to the other party.

12. CANCELLATION FOR POSSESSION OF WEAPONS ON ADOT PROPERTY

This contract may be cancelled if the Contractor or any subcontractors or others in the employ or under the supervision of the Contractor or subcontractors is found to be in possession of weapons.

Possession of weapons (firearms, explosive devices, knives or blades of more than three (3) inches, or any other instrument designed for lethal or disabling use) is prohibited on ADOT property.

Further, if the Contractor or any subcontractors or others in the employ or under the supervision of the Contractors or subcontractors, are asked by an ADOT official to leave the ADOT property, they are advised

Available online at that failure to comply with such a request shall result in cancellation of the Contract and anyone who refuses, whether armed or not, is subject to prosecution under A.R.S. § 13-1502, "Criminal trespass in the third degree; classification.”

13. REVIEW OF CONTRACTOR’S WORK

Work performed by the Contractor shall be subject to periodic reviews and partial acceptance at various stages. The Department reserves the right to make such reviews and pass upon the acceptability of the Contractor’s work. Partial acceptance shall not relieve the Contractor’s obligation to correct, without charge, any errors in the work performed under this contract.

14. ACCURACY OF WORK

The Contractor shall be responsible for the accuracy of the work and shall promptly make all the necessary revisions or corrections resulting from errors and omissions on the part of the Contractor without additional compensation. Acceptance of the work by the Department shall not relieve the Contractor of the responsibility for subsequent correction of any such errors and clarification of ambiguities.

15. 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 the State of Arizona.

16. INSURANCE

The Contractor shall furnish Certificate(s) of Insurance inclusive of the following requirements to the Department. Certificate(s) shall be received within five (5) calendar days of notification of contract award by the Procurement Officer.

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16.1. Insurance Requirements

16.1.1. 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.

16.1.2. 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.

16.2. Minimum Scope and Limits of Insurance

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

16.2.1. Commercial General Liability (CGL) – Occurrence Form

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

General Aggregate $2,000,000

Products – Completed Operations Aggregate $1,000,000

Personal and Advertising Injury $1,000,000

Damage to Rented Premises $ 50,000

Each Occurrence $1,000,000

a. 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.

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.

16.2.2. 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) $1,000,000

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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,

16.2.3. Worker's Compensation and Employers' Liability

Workers' Compensation Statutory

Employers' Liability o Each Accident $1,000,000 o Disease – Each Employee $1,000,000 o Disease – Policy Limit $1,000,000

a. Policy shall contain a waiver of subrogation endorsement, as required in this written agreement, in favor of the State of Arizona, and its departments, agencies, boards,

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).

16.2.4. Professional Liability (Errors and Omissions Liability)

Each Claim $2,000,000

Annual Aggregate $2,000,000

a. In the event that the Professional Liability 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.

b. The policy shall cover professional misconduct or negligent acts for those positions defined in the Scope of Work of this contract.

16.3. Additional Insurance Requirements

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

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16.3.1. 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).

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

16.4. 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 the Department.

16.5. Acceptability of Insurers

Contractors 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.

16.6. 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.

16.6.1. 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.

16.6.2. 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.

16.6.3. All certificates required by this Contract shall be sent directly to the Department. Certificates shall state that the coverage is provided for any and all work performed on or behalf of ADOT and the State of Arizona. The State of Arizona reserves the right to require complete copies of all insurance policies required by this Contract at any time.

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16.7. 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 the contract, proof from the Contractor that its subcontractors have the required coverage.

16.8. 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.

16.9. Exceptions

In the event the Contractor or sub-contractor(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 sub-contractor(s) is/are a State of Arizona agency, board, commission, or university then none of the above shall apply.

17. USAGE REPORT

The Contractor shall furnish the Department a quarterly report showing purchasing activity under this contract. This usage report shall be provided in a form substantially equivalent to Exhibit 4. Usage reports shall be submitted to the Procurement Officer no later than 30 days after the end of each quarter.

Usage report quarters shall be defined as follows:

January through March – Report due April 30

April through June – Report due July 30

July through September – Report due October 30

October through December – Report due January 30

18. KEY PERSONNEL

It is essential that the Contractor provides adequate experienced personnel, capable of and devoted to the successful accomplishment of work to be performed under this contract. The Contractor must agree to assign specific individuals to the key positions.

The Contractor agrees that, once assigned to work under this contract, key personnel shall not be removed or replaced without written notice to the Procurement Officer. The Contractor shall immediately notify the Procurement Officer of key personnel changes. Replacement personnel shall be of substantially equal ability and qualifications. All key personnel changes are subject to the written concurrence of the Procurement Officer prior to any billable work being performed.

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19. SUBCONTRACTORS

It is essential that the Contractor provides adequate experienced subcontractors, capable of and devoted to the successful accomplishment of work to be performed under this contract.

The Contractor agrees that, once assigned to work under this contract, subcontractors shall not be removed or replaced without written notice to the Procurement Officer. The Contractor shall immediately notify the Procurement Officer of subcontractor changes. Replacement subcontractors shall have substantially similar qualifications and experience. All subcontractor changes are subject to the written concurrence of the Procurement Officer prior to any billable work being performed.

20. REMOVAL OF CONTRACTOR’S EMPLOYEES

The Contractor agrees to utilize only experienced, responsible and capable personnel in the performance of the work. The Department may require that the Contractor remove from the job covered by this contract, employees who endanger persons or property or whose continued employment under the contract is inconsistent with the interest of the Department.

21. PROJECT ADMINISTRATION

The Project Manager shall be designated at the time of project assignment. The Project Manager will provide general direction as necessary and be responsible for decisions pertaining to work under this Contract.

22. TRAVEL

Travel expenses authorized in advance and incurred at off-site assignments will be reimbursed at cost, in accordance with the State of Arizona Travel Policy and the ADOT Travel Authorization Policy and Procedure hereby incorporated herein. State travel policy includes the travel reimbursement schedules. Actual receipt for travel must be submitted for reimbursement of allowable direct costs (lodging, automobile, meals, etc.). The travel policies may be accessed via the internet at the State of Arizona, General Accounting Office's website (http://www.gao.az.gov/travel/) and State of Arizona, Department of Transportation’s website (http://www.azdot.gov/business/Procurement).

23. LICENSES, PERMITS, CERTIFICATIONS

Contractor, at their expense, shall maintain in current status without any violations, complaints, or suspensions during the term of this contract all Federal, State and Local licenses, permits and certifications required for the operation of a business conducted by the contractor.

24. PERFORMANCE STANDARDS

Performance of this contract may require the Contractor to have access to and use of data and information which may be considered proprietary to a Government agency or a Government Contractor or which may http://www.gao.az.gov/travel/ http://www.azdot.gov/business/Procurement

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The Contractor agrees that Contractor’s employees and Subcontractor’s employees will not divulge or release data or information developed or obtained in connection with the performance of the resulting contract, unless made public by the Department, except to authorized-State personnel, or upon written approval of the Department.

25. PROJECTS AS ASSIGNED

Projects will be assigned on an as needed basis. The Task Assignment Request for Proposal will include the scope of work and requirements for proposing on the project.

The Department will make a determination of the acceptability of work. Work shall be completed in a responsive and professional manner in accordance with the requirements incorporated in the formal authorization.

Each project Task Assignment issued by the Department will be funded through separate Purchase Orders. A purchase order must be issued as a “notice to proceed” for each project Task Assignment. If a project Task Assignment crosses over a State fiscal year, the task assignment budget must reflect a breakdown for each State fiscal year (July 1 – June 30). The lesser of the hourly rate quoted in the proposal or the hourly rate from the contract shall prevail. All contract terms and conditions shall apply to each project Task Assignment.

26. TASK ASSIGNMENT AND PURCHASE ORDERS

The Department will issue a Task Assignment for each project. Contractor shall not perform work for the Department unless the Project Manager and the Contractor have agreed on a Scope of Work and a Task Assignment Number and Purchase Order have been assigned for the project. The Purchase Order with Purchase Order Number shall be considered the notice to proceed with awarded tasks.

Task Assignments shall include the information necessary to propose. Typical information in a Task Assignment includes: the statement of need, project objectives, project manager, work tasks and/or scope of work, proposal content requirements, budget and scheduling, invoicing and progress reporting requirements, and administrative notes and requirements. Nothing in a Task Assignment shall be allowed to remove or substantively alter any terms and conditions of this contract.

27. CONTRACT ORDER OF PRECEDENCE

In the event of a conflict in the provisions of the Contract, as accepted by the Department and as they may be amended, the following shall prevail in the order set forth below:

Federal Highway Administration Federal Terms;

Special Terms and Conditions;

Uniform Terms and Conditions;

Statement or Scope of Work;

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Specifications;

Attachments;

Exhibits

28. POST AWARD MEETING

At the discretion of the Department, the Contractor, at their expense, shall attend and participate in post award meetings as scheduled by the Procurement Officer.

UNIFORM TERMS AND CONDITIONS

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1. Definition of Terms

As used in this Solicitation and any resulting Contract, the terms listed below are defined as follows:

1.1. “Attachment” means any item the Solicitation requires the Offeror to submit as part of the Offer.

1.2. “Contract” means the combination of the Solicitation, including the Uniform and Special Instructions to Offerors, the Uniform and Special Terms and Conditions, and the Specifications and Statement or Scope of Work; the Offer and any Best and Final Offers;

and any Solicitation Amendments or Contract Amendments.

1.3. "Contract Amendment" means a written document signed by the Procurement Officer that is issued for the purpose of making changes in the Contract.

1.4. “Contractor” means any person who has a Contract with the State.

1.5. “Days” means calendar days unless otherwise specified.

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

1.7. “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.

1.8. “Materials” means 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.

1.9. “Procurement Officer” means the person, or his or her designee, duly authorized by the State to enter into and administer Contracts and make written determinations with respect to the Contract.

1.10. “Services” means the furnishing of labor, time or effort by a contractor or subcontractor 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.

1.11. “Subcontract” means any Contract, express or implied, between the Contractor and another party or between a subcontractor and another party delegating or assigning, in whole or in part, the making or furnishing of any material or any service required for the performance of the Contract.

1.12. “State” means the State of Arizona and Department or Agency of the State that executes the Contract.

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

2. Contract Interpretation

2.1. Arizona Law. The Arizona law applies to this Contract including, where applicable, the Uniform Commercial Code as adopted by the State of Arizona and the Arizona

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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.

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

2.3. Contract Order of Precedence. In the event of a conflict in the provisions of the Contract, as accepted by the State and as they may be amended, the following shall prevail in the order set forth below:

2.3.1. Special Terms and Conditions;

2.3.2. Uniform Terms and Conditions;

2.3.3. Statement or Scope of Work;

2.3.4. Specifications;

2.3.5. Attachments;

2.3.6. Exhibits;

2.3.7. Documents referenced or included in the Solicitation.

2.4. Relationship of Parties. The Contractor under this Contract is an independent Contractor. Neither party to this Contract shall be deemed to be the employee or agent of the other party to the Contract.

2.5. Severability. The provisions of this Contract are severable. Any term or condition deemed illegal or invalid shall not affect any other term or condition of the Contract.

2.6. No Parole Evidence. This Contract is intended by the parties as a final and complete expression of their agreement. 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 shall be binding.

2.7. No Waiver. Either party’s failure to insist on strict performance of any term or condition of the Contract shall not be deemed a waiver of that term or condition even if the party accepting or acquiescing in the nonconforming performance knows of the nature of the performance and fails to object to it.

3. Contract Administration and Operation

3.1. Records. Under A.R.S. § 35-214 and § 35-215, the Contractor shall retain and shall contractually require each subcontractor to retain all data and other “records” relating to the acquisition and performance of the Contract for a period of five years after the completion of the Contract. All records shall be subject to inspection and audit by the State at reasonable times. Upon request, the Contractor shall produce a legible copy of any or all such records.

3.2. Non-Discrimination. The Contractor shall comply with State Executive Order No. 2009- 09 and all other applicable Federal and State laws, rules and regulations, including the Americans with Disabilities Act.

3.3. Audit. Pursuant to ARS § 35-214, at any time during the term of this Contract and five

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(5) years thereafter, the Contractor’s or any subcontractor’s books and records shall be subject to audit by the State and, where applicable, the Federal Government, to the extent that the books and records relate to the performance of the Contract or Subcontract.

3.4. Facilities Inspection and Materials Testing. The Contractor agrees to permit access to its facilities, subcontractor facilities and the Contractor’s processes or services, at reasonable times for inspection of the facilities or materials covered under this Contract.

The State shall also have the right to test, at its own cost, the materials to be supplied under this Contract. Neither inspection of the Contractor’s facilities nor materials testing shall constitute final acceptance of the materials or services. If the State determines non-compliance of the materials, the Contractor shall be responsible for the payment of all costs incurred by the State for testing and inspection.

3.5. Notices. Notices to the Contractor required by this Contract shall be made by the State to the person indicated on the Offer and Acceptance form submitted by the Contractor unless otherwise stated in the Contract. Notices to the State required by the Contract shall be made by the Contractor to the Solicitation Contact Person indicated on the Solicitation cover sheet, unless otherwise stated in the Contract. An authorized Procurement Officer and an authorized Contractor representative may change their respective person to whom notice shall be given by written notice to the other and an amendment to the Contract shall not be necessary.

3.6. Advertising, Publishing and Promotion of Contract. The Contractor shall not use, advertise or promote information for commercial benefit concerning this Contract without the prior written approval of the Procurement Officer.

3.7. Property of the State. Any materials, including reports, computer programs and other deliverables, created under this Contract are the sole property of the State. The Contractor is not entitled to a patent or copyright on those materials and may not transfer the patent or copyright to anyone else.