CTR069670_Contract_Documents.pdf

Procurement

ATTACHMENT 1

OFFER AND ACCEPTANCE

Solicitation No: BPM005767 Available online at https://app.az.gov

Rev 09/2022

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.

Helena Agri Enterprises (Helena Chemical Co) Paul Goolsby

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

1035 S 63rd Ave

Paul Goolsby- 11/15/2023

Address Printed Name Date Phoenix, AZ 85043

Phoenix Specialty Branch Manager

City State Zip Title goolsbyp@helenaagri.com 602.206.5288

Email Address Phone Number www.helenaprofessional.com 602.278.0476

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: FEB1EE3E-F768-4FCB-8E3D-83CCFA9FE0C0

January 24

1/24/2024

DocuSign Envelope ID: F508814F-48E8-43ED-A8C2-F7919FF36069

CTR069670

https://app.az.gov/

Rev. 05/2023

STATE OF ARIZONA

ARIZONA DEPARTMENT OF TRANSPORTATION

1655 W. Jackson St., MD 100P

Phoenix, AZ 85007

REQUEST FOR PROPOSAL

SOLICITATION NUMBER: BPM005767

DESCRIPTION: Herbicide/Pesticide Chemicals

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.

Amar Greasham Sr. Procurement Officer Phone: 602‐712‐8259 Email: Agreasham@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) 712‐7466. 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) 712‐7466.

TABLE OF CONTENTS

SECTION PAGE

Notice 1

Table of Contents 2

Scope of Work 3

Special Terms and Conditions 10

Uniform Terms and Conditions 21

EXHIBITS

1 ‐ Title VI/Non‐Discrimination Assurances Appendix A 40

2 ‐ Title VI/Non‐Discrimination Assurances Appendix E 42

3 ‐ AZDA Pesticide Registration Application 44

4 ‐ ADEQ Pesticide Contamination Prevention Program Data Summary Form 46

5‐ ADEQ Approved Active Ingredient List 50

6‐ Quarterly Usage Reports 83

7‐ Vendor Performance Report 84

SCOPE OF WORK

1. Statement of Need

1.1. Pursuant to the Arizona Procurement Code, A.R.S. §41‐2501 et seq., the State of Arizona Department of Transportation (Department), has a requirement for a term contract for Herbicide/Pesticide Chemicals.

2. Introduction and Background

2.1. The State of Arizona departments, including its agencies, boards, all eligible universities, political subdivisions and nonprofit educational or public health institution. (Eligible Agencies), have an ongoing requirement for pesticide products (including Herbicides, Insecticides, Fungicides, Surfactants, and Adjuvants ) as described herein.

3. General Requirements

3.1. All products offered shall be available for ordering at the time of contract award and throughout the life of the contract.

3.1.1. All pesticide products supplied under this contract shall comply with current applicable

Occupational Safety and Health General Industry Standards 29 CFR 1910.59 and the Construction Industry Standards 26 CFR 1910.59. Information regarding OSHA Requirements and Compliance can be obtained from https://www.osha.gov.

3.1.2. Changes to products that are available under the resultant contract cannot be made without prior written approval from the Department. As new herbicide, fungicides, surfactants, and adjuvants requirements and products develop; the Contractor may recommend additional or changed products through written request to ADOT Procurement for specification review. ADOT Procurement shall review the request and issue an amendment to the contract if approved. Likewise, discontinued products shall be removed through contract amendment.

3.1.3. The sale and agricultural use or restricted use of herbicide and or fungicides, surfactants, and adjuvants in the State of Arizona is regulated by the Arizona Department of Agriculture Environmental Services Division (ESS). In accordance with these regulations, the Contractor shall have a permit; refer to, Exhibit 3, AZDA Pesticide Registration Application to sell herbicide and or fungicides, surfactants, and adjuvants in the State of Arizona for agricultural or restricted use. Proof of compliance from the Department of Agriculture may be required within 30 days of award. All questions regarding this regulatory authority shall be direct to:

The State of Arizona Department of Agriculture 1010 W Washington Street Phoenix, AZ 85007

Phone: 602‐542‐3578 or email Licensing@azda.gov

3.1.4. New active ingredients that have never been approved by ADEQ, Contractor must submit environmental fate data/studies and a Data Summary Form , refer to, Exhibit 4 , ADEQ Pesticide Contamination Prevention Program Data Summary Form in addition to the ADEQ New Agricultural‐Use Pesticide Form by accessing the following link:

https://azdeq.gov/pesticide‐product‐resources

3.1.5. The Arizona Department of Transportation (ADOT) Safety and Health Section requires manufacturers, importers and distributors of chemicals to supply Safety Data Sheets (SDS) which contain “full disclosure” information for chemical products that our employees may test or use safely in the workplace. Full disclosure shall mean that all ingredients in a chemical must be identified. Identification shall include the name of the chemical, CAS number and percent by weight of the chemical contained in a product.

3.1.6. The U.S. Environmental Protection Agency (EPA) regulates herbicide, fungicides, surfactants, and adjuvants and its use under Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The Office of Pest Management (OPM) regulates the use of structural and other pesticide uses. The Arizona Department of Agriculture is the State of Arizona State Lead Agency (SLA) and operates under the authority of FIFRA.

3.2. Classifications

3.2.1. Pesticides under the resultant contract shall be both dry and liquid forms, in various size and included in one of the following classifications;

● Insecticides‐ that which kill insects and other arthropods

● Fungicides‐ that which kill fungi including blights,

● Herbicides ‐ that which kill weed and other plants that grow unwanted

● Miscellaneous‐ other substances which kill unwanted pests or plants

3.2.2. Exclusions

The following substances are excluded from being offered under the resultant contract

● Drugs used to control diseases (regulated by Food & Drug Administration)

● Fertilizers, nutrients or other substances to promote plant survival

● Biological control agents regulated by EPA

4. Specific Requirements

4.1. The Department is seeking the following chemicals/products to be offered under the resultant contract.

4.1.1 Herbicides:

Herbicides include, but are not limited to the following products:

2, 4‐D Aminocyclopyrachlor Aminopyraid Bromacil Bromoxynil Chlorsulfuron Clopyralid Dicamba Diflufenzopyr Diuron Fluazifop‐P‐Butyl Fluroxypyr Glufosinate Glyphosate Halosulfuron‐methyl Hexazinone Imazapic Imazapyr Indaziflam Isoxaben Mefluidide Metsulfuron Methyl Oryzalin Oxyfluorfen Pelargonic Acid Pendimethalyn Picloram Pramatol Prodiamine Pyraflufen Ethyl Sethoxydim Simazine Sulfentrazone Sulfometuron Methyl

4.1.2 Fungicides Surfactants, and Adjuvants:

Fungicides, Surfactant/Adjuvants include, but are not limited to the following products:

● Amphoteric Surfactants

● Anionic Surfactants

● Anti‐Condensators

● Cationic Surfactants

● Emulsifiers

● Miscellaneous Surfactants and Adjuvants

● Nonionic Surfactants

● Oils

● Spreaders and Stickers

● Thickeners

4.1.3 Insecticides:

Insecticides include, but are not limited to the following products:

● Bacillus

● Bacillus Thuringiensis

● Carbamate

● Hydrazone

● Imidacloprid

● Insecticide

● Lavarcide/Pupicide

● Lipid

● Malthion

● MCPP – 44

● Methoprene

● Methyl Carbamate

● Permethrin

● Resmethrin

● Sodium Chloride

● Sumithrin and Piperonyl Butoxide

● Thuringiensis

4.1.4 Miscellaneous:

Miscellaneous chemicals include, but are not limited to the following products:

● Foam Fighter

● Dye 95

● Miscellaneous Chemicals

● Tank Cleaners

4.2. Line Item and Catalog Pricing

4.2.1. Contract prices shall be in the form of a fixed percentage of discounts off the most recent established catalog or manufacturer’s price list, refer to, Attachment No. 7 Price Sheet.

The published price list may be in the form of an Internet website. The internet website shall include at a minimum, part numbers (if applicable) and descriptions (Photos Optional) of all contracted products or groups of products. An established Catalog or Manufacture’s Price List shall be defined as one that:

Is regularly maintained by a manufacturer, distributor, or contractor;

Is either published or otherwise available for inspection by contract customers;

and states prices at which sales are currently or were last made to the contractor’s general contract buying public for the items involved.

Multiple percentage discount structures are acceptable.

4.2.2. The Department reserves the right to add new products to the Contractor’s Discount

Catalog. These products shall be subject to the same discounts, as like products already available in the Discount Catalog. Percentage discounts shall apply to all current and future part numbers supplied in published catalogs and price lists.

4.2.3. The Department, at its sole discretion, may maintain the contractor's electronic catalog data and price lists or provide electronic links to it through the Arizona Procurement Portal (APP), website: app.az.gov

4.2.4. Catalogs and Price Lists shall be made available either in an electronic format upon award, annually at renewal, when the manufacturer publishes a price change, or at the request of the Department.

4.3. Packing

4.3.1. Pallets

Unless otherwise specified, products are to be packaged in cartons meeting federal specifications and shipped on non‐returnable pallets. Pallets shall not exceed 2500 pounds in weight, 48 inches high and 6 feet wide.

4.3.2. Shipping Labeling

Individual shipping cartons shall be labeled with the name of the ordering agency, order number, contract number and contractors name and address.

4.3.3. Package Labeling

Product labeling shall adhere to 40 CFR §156.10 Labeling requirements.

Each package label shall identify the product name, the EPA Number, date product was manufactured, batch number, label print date, storage requirements, and conditions and recommended shelf life.

4.3.4. SDS Sheets

Safety Data Sheets (SDS) are available upon request at the Department of Agriculture, and at ADOT Highway Operations Districts. Each shipment must contain full disclosure Safety Data Sheets (SDS) containing the following information:

● Chemical Product and Company Identification

● Hazards Identification Summary

● Composition, Information on Ingredients

● First Aid Measures

● Fire Fighting Measures

● Accidental Release Measures

● Handling and Storage

● Exposure Controls & Personal Protection

● Physical and Chemical Properties

● Stability and Reactivity

● Toxicological Information

● Ecological Information

● Disposal Considerations

● Transportation Information

● Regulatory Information

● Other Pertinent Information to the product

4.4. Delivery

4.4.1. After Receipt of order (ARO) the contractor shall contact the Department within seventy‐ two (72) hours to specify delivery timeframes, confirm date of delivery, and or notify the Department of any delivery delays.

4.4.2. Deliveries as outlined above shall be delivered no later than fifteen (15) days After Receipt of Order (ARO) unless otherwise directed by the Department.

4.4.3. All delivery tickets must be signed by a Department employee for payment to be processed. Any deliveries done by the Contractor without proper authorization will not be eligible for payment.

5. Contractor’s Responsibilities

5.1. The contractor shall have the ability to successfully perform all requirements of this contract.

5.2. Statewide Contract Capacity

5.2.1. The contractor shall have the ability to create and manage numerous individual accounts for order placement, billing and reporting purposes for statewide contract capacity.

5.2.2. Inventory and transportation capacities shall be all‐inclusive sufficient to meet statewide customer demand and contract delivery requirements as stated in this solicitation including no charge

5.2.3. The contractor shall have inventory and transportation capacities sufficient to meet customer demand and contract delivery requirements.

5.3. Contractor personnel shall be qualified to perform the requirement stated herein. Refer to section 3.1.3

5.4. The Contractor shall provide general help and ordering assistance including toll‐free phone and Web‐based support Monday through Friday 8:00 AM to 5:00 PM MST.

5.5. The Contractor shall be responsible for ensuring the most current Manufacturer’s Published

Price Lists are available to the Department and shall update any on‐line catalogs, as well as the documentation posted through the State’s e‐Procurement system (APP).

5.6. The Contractor shall offer a full satisfaction guarantee. Any item that is received in error or in a defective or damaged condition shall be replaced within ten (10) days from notification at no cost to the Department.

6. Department’s Responsibilities

6.1. The Department may perform periodic inspections to ascertain Contractor’s compliance with contract requirements.

6.2. The Department shall notify the Contractor, verbally and in writing of any deficiencies found within the contract limits. If deficiencies are noted, the Department will submit a Vendor Performance Report Exhibit 7, to the Procurement Officer, identifying the contractual deficiency and the expected resolution. A copy will be furnished to the Contractor.

6.3. When written notice of performance deficiencies is delivered to the Contractor, the Contractor shall, at no cost to the Department, correct the deficiencies to the approval of the Department

6.4. Repeated deficiencies or Contractor’s failure to improve documented performance deficiencies may result in the termination of the contract by the Department.

6.5. The Department shall conduct all business in a responsible and professional manner and in accordance with the specifications, schedules, or performance and operating standard.

SPECIAL TERMS AND CONDITIONS

1. CONTRACT TERM

The term of any resultant contract shall commence on the effective day of award and shall continue for a period of twelve months (12) 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 use of all State of Arizona departments, agencies and boards. In addition, eligible universities, political subdivisions and nonprofit educational or public health institutions may participate at their discretion. In order to participate in any resultant contract, a university, political subdivision or nonprofit educational or public health institution must have entered into a cooperative purchasing agreement with the State Procurement Office as required by A.R.S. §41‐2632. This cooperative purchasing agreement must be in effect at the time of order. The Contractor shall verify if an ordering entity is an eligible cooperative purchasing member before selling materials to or providing services for them under the contract. The current list of cooperative purchasing members is available on the State Procurement Office website at https://spo.az.gov/suppliers/usage‐reporting.

NOTE: Membership in the State Purchasing Cooperative is open to all Arizona political subdivisions, including cities, counties, school districts, and special districts. Membership is also available to non‐ profit organizations, other state governments, the federal government and tribal nations. For reference, “non‐profit organizations” are defined in A.R.S. § 41‐2631(4) as any nonprofit corporation as designated by the IRS under Section 501(c)(3) through 501(c)(6) of the tax code.

4. MANDATORY STATEWIDE CONTRACT

The Contract is a mandatory statewide contract per (A.A.C. R2‐7‐607) for multiple purchase, projects, or assignments and a cooperative contract (per A.R.S. §41‐2632 and A.A.C. R2‐7‐1002(B)) that can be purchased against by some of all Eligible Agencies and any Co‐Op Buyers that elect to participate. Even if only on Eligible Agency needs or elects to purchase against the Contract, it is to be construed as being a cooperative contract hereunder.

Contractor shall see to Co‐Op Buyers at the same price and on the same lead times and other terms and conditions under which it sells to Eligible Agencies, with the sole exception of any legitimately additional costs for extraordinary shipping or delivery requirements if the Co‐Op Buyer is having Materials delivered or installed or Services performed at locations not contemplated in the contracted pricing (e.g. delivery to a location outside Arizona).

Contractor shall acknowledge each Order form Eligible Agencies within one (1) business day after receipt by either: (a) “approving” the Order electronically in the State’s eProcurement System, which will indicate Contractor’s unqualified acceptance of the Order as‐issued; or (b) “rejecting” the Order electronically in the State’s eProcurement System, with a concurrent explanation by email to relevant originator as to the reason for rejecting it. By way of reminder, the only grounds on which the Contractor may reject or refuse an Order are those set out in paragraph 3.11.3. (Orders are Obligatory). Unless and until Contractor has approved the Order in the State’s eProcurement System, it will have no effect under the Contract and will not oblige either State or Contractor. If the relevant Eligible Agency explicitly instructs at the time that a verbal acceptance is sufficient because of urgency or other unusual circumstances and Contractor duly gives its verbal acceptance, then Contractor will be deemed to have accepted the Order immediately upon commencing performance, provided that Contractor must follow up its verbal acceptance by accepting the Purchase Order electronically in the State’s eProcurement System within three (3) business days. Contractor shall thereafter be barred from subsequently rejecting the Order in the State’s eProcurement System and if it does so the rejection will be void.

Contractor shall acknowledge each Order from Co‐Op Buyers in conformance with each Co‐Op Buyer’s instructions given at the time of ordering or in any supplemental participating agreement Contractor might have with them. Orders from Co‐Op Buyers create no obligation on State’s part, since they are entirely between the Co‐Op Buyer and Contractor. That notwithstanding, Contractor’s obligation under the Contract is to service Co‐Op Buyers commercially as though they were with an Eligible Agency, and Contractor’s refusal to do so would be a material breach of the Contract.

5. 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.

6. 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.

7. SHIPPING TERMS

Delivery shall be F.O.B. Destination to the location designated herein. Contractor shall retain title and control of all goods until they are delivered. All risk of transportation and related charges shall be the responsibility of the Contractor. All claims for visible or concealed damage shall be filed by the

Contractor. The Department will notify the Contractor promptly of any damaged goods and shall assist the Contractor in arranging for inspection.

8. DELIVERY

Deliveries shall be completed In accordance with the requirements of the contract.

Delivery of the product does not constitute acceptance.

9. INSPECTION AND ACCEPTANCE

Each item delivered shall be subject to a complete inspection by the Department within five (5) days after delivery. Inspection criteria shall include, but not be limited to, conformity to the specifications, workmanship, quality and materials.

If the delivered product is not accepted and returned for corrective action, an additional five (5) calendar days shall be allowed for inspection of the corrected or replacement product.

The Contractor shall be responsible for the transport of the material to and from the Department for the correction of items or workmanship not in compliance with the specifications.

Product returned for corrective action may delay payment. Invoices will be processed for payment only after the product is accepted.

10. INVOICING and PAYMENT

Separate invoices are required for each shipment of product or delivery of service and 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

● 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 for the purchase of product within thirty

(30) calendar days after the Department has conducted the necessary reviews, inspections and acceptance as described herein.

The department acceptance date will 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.

11. 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.

12. PRICE REDUCTION

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

13. PRICE INCREASE

Not Applicable.

14. SAFETY STANDARDS

Items supplied under this contract shall comply with all current applicable safety standards and regulations including the Occupational Safety and Health Standards of the State of Arizona Industrial Commission, the National Electric Code and the National Fire Protection Association Standards.

15. WARRANTY

The Contractor warrants:

1. That all services performed hereunder shall conform to the requirements of this contract and shall be performed by qualified personnel in accordance with the highest professional standards.

2. That all items furnished hereunder shall conform to the requirements of this contract and shall be free from defects in design materials and workmanship. Any defects of design, workmanship or materials shall be fully corrected by the Contractor (including parts and labor) without cost to the Department.

3. The warranty period on workmanship and materials shall be based on a minimum of twelve (12) months from the time of acceptance by the Department.

16. CURRENT PRODUCTS

All products supplied under this contract shall be in current and ongoing production; shall have been formally announced for general marketing purposes; shall be a model or type currently functioning in a user (paying customer) environment and capable of meeting or exceeding all specifications and requirements set forth in the contract.

17. PRODUCT DISCONTINUANCE

In the event that a product or model is discontinued by the manufacturer, the Department at its sole discretion may allow the Contractor to provide a substitute for the discontinued item. The Contractor shall request authorization to substitute a new product or model and provide the following:

1. A formal announcement from the manufacturer that the product or model has been discontinued.

2. Documentation from the manufacturer that names the replacement product or model.

3. Documentation that provides clear and convincing evidence that the replacement meets or exceeds all specifications required by the original solicitation.

4. Documentation that provides clear and convincing evidence that the replacement will be compatible with all the functions or uses of the discontinued product or model.

5. Documentation confirming that the price for the replacement is the same as or less than the discontinued product or model.

18. CONTRACT ADMINISTRATION

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

19. 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 1655 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.

20. CANCELLATION FOR POSSESSION OF WEAPONS ON ADOT PROPERTY

This contract may be cancelled if 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 device, knife or blade of more than three 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 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."

21. INDEMNIFICATION CLAUSE

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.

22. INSURANCE

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

21.1 Insurance Requirements

21.1.1 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.

21.1.2 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.

21.2 Minimum Scope and limits of Insurance

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

21.2.1 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.

21.2.2 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

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.

21.2.3 Workers’ 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 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).

21.3 Additional Insurance Requirements

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

21.3.1 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).

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

21.4 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 (State Representative’s Name, Address & Fax Number).

21.5 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.

21.6 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.

21.6.1 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.

21.6.2 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

21.6.3 The certificate shall state that the insurance applies to any and all work performed for or on the behalf of the State of Arizona/ADOT

23. ADMINISTRATIVE FEE

Contractor shall pay State an administrative fee against all Contract sales to Co‐Op Buyers, as provided for under A.R.S. §41‐2633. The fee rate is one (1%) percent. Failure to remit the administrative fees is a material breach of contract, and will entitle the State to its remedies under Uniform Terms and Conditions Section 8 and its right to terminate for default under Section 9. Method of calculation, payment procedures, and other details are provided on the State Procurement Office website: https://spo.az.gov/suppliers/usage‐reporting

24. ADMINISTRATIVE FEE REPORTING

Contractor shall submit to State a quarterly usage report documenting all Contract sales to both Eligible Agencies and Co‐Op Buyers, itemized separately. Contractor shall further itemize divisions, groups or areas within a given Eligible Agency if they place Orders independently of each other. Failure to submit the report is a material breach of contract, and will entitle the State to its remedies under Uniform Terms and Conditions Section 8 and its right to terminate for default under Uniform Terms and Conditions Section 9. Contractor shall submit the report using the forms and following The instructions on the State Procurement Office website:

https://spo.az/gov/suppliers/usage‐reporting

25. ADOT Usage Report Requirements

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 6. 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

26. LICENSES, PERMITS, CERIFICATIONS

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.

27. 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

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 which requires the Offeror to submit as part of the Offer.

1.2. “Contract” means the combination of the Solicitation, including the 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. “Data” means recorded information, regardless of form or the media on which it may be recorded. The term may include technical data and computer software. The term does not include information incidental to contract administration, such as financial, administrative, cost or pricing, or management information.

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

1.7. “Exhibit” means any item labeled as an Exhibit in the Solicitation or placed in the

Exhibits section of the Solicitation generally containing maps, schematics, examples of reports, or other documents that will be used to perform the requirements of the

Scope of Work after contract award.

1.8. “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.

1.9. “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.

1.10. “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.

1.11. “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.

1.12. “State” means any department, commission, council, board, bureau, committee, institution, agency, government corporation or other establishment or official of the executive branch or corporation commission of the State of Arizona that executes the

Contract.

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

1.14. “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 Materials or any Services required for the performance of the Contract.

1.15. “Subcontractor” means a person who contracts to perform work or render Services to a Contractor or to another Subcontractor as a part of a Contract with the State.

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

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; then

2.3.7. Any other documents referenced or included in the Solicitation including, but not limited to, any Bid or Offer documents provided by the Contractor that do not fall into one of the above categories.

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 any and all Data and other

“records” relating to the acquisition and performance of the Contract for a period of five (5) 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 Orders Nos.

2023‐09, 2023‐01, 2009‐09, and any and all other applicable Federal and State laws, rules and regulations, including the Americans with Disabilities Act. Contractor shall include these provisions in contracts with Subcontractors when required by Federal or State law.

3.3. Audit. Pursuant to A.R.S. § 35‐214, at any time during the term of this Contract and five

(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 as required under A.R.S. § 41‐2547. 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, stated in the Contract, or listed on the State’s eProcurement system. 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. Continuous Improvement. Contractor shall recommend continuous improvements on an on‐going basis in relation to any Materials and Services offered under the

Contract, with a view to reducing State costs and improving the quality and efficiency of the provision of Materials or Services. State may require Contractor to engage in continuous improvements throughout the term of the Contract.

3.8. Other Contractors. State may undertake on its own or award other contracts to the same or other suppliers for additional or related work. In such cases, the Contractor shall cooperate fully with State employees and such other suppliers and carefully coordinate, 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, Materials, Services, or records to State or the other suppliers.

Contractor shall not commit…