CTR078905 Special and Uniform Terms and Conditions.pdf

Direct Contract

CTR078905

Description:

Aviation Jet - A Turbine Engine Fuel

Storage/Delivery/Aircraft Fueling Services and

Arizona Department of Public Safety 2102 W. Encanto

Blvd., Phoenix, Arizona

85009

Special Terms and Conditions

1. Definitions of Terms: As used in the Contract, the terms listed below are defined as follows:

1.1. Acceptance: The document titled “Offer and Acceptance Form” bearing the state contract number once Procurement Officer has signed it to signify (1) State’s formal acceptance of the

Accepted Offer and (2) the formation of the Contract. For clarity of intent, the foregoing is not to be confused with the term “acceptance” used throughout the Contract in the context of delivery, inspection, etc., with respect to Materials or Services.

1.2. Accepted Offer:

1.2.1. If State did not request a Revised Offer, then “Accepted Offer” means the Initial Offer.

1.2.2. If State requested a Revised Offer but not a Best and Final Offer, then “Accepted

Offer” means the latest Revised Offer.

1.2.3. If State requested a Best and Final Offer, then “Accepted Offer” means the Best and

Final Offer.

1.3. Arizona Procurement Code: The Arizona Procurement Code consists of Arizona Revised

Statutes (A.R.S.) §§ 41-2501 et seq. and Arizona Administrative Code (A.A.C.) R2-7-101 et seq.

There is additional information in the Solicitation Instructions regarding how to access these state statutes and rules.

1.4. Arizona Risk and Authorization Management Program (AZRAMP): is used by the Arizona

Department of Homeland Security to evaluate Cloud services and Contractors that will transfer, process, or store state data outside of state-managed or controlled networks, and has three levels of control review:

1.4.1. AZ Mandatory Control Baseline: 35 Controls

1.4.2. NIST Low Impact Control Baseline: Public Data Classification

1.4.3. NIST Moderate Impact Control Baseline: Confidential Data Classification

1.5. Arizona Transaction Privilege Tax (TPT): For information, refer to the Arizona Department of

Revenue (DOR) website at: https://azdor.gov/transaction-privilege-tax-tpt

1.6. Attachment. Any item that:

1.6.1. The Solicitation required Offeror to submit as part of the Offer (e.g., Initial Offer, Revised Offer, or Best and Final Offer);

https://azdor.gov/transaction-privilege-tax-tpt

Description:

Aviation Jet - A Turbine Engine Fuel

Storage/Delivery/Aircraft Fueling Services and

Arizona Department of Public Safety 2102 W. Encanto

Blvd.,

1.6.2. Was attached to an Offer when submitted; and

1.6.3. Was included in the Accepted Offer.

1.7. Cloud Services: Cloud or Cloud Services means any Software as a Service (SaaS), Infrastructure as a Service (IaaS), or Platform as a Service (Paas) involving the transfer, processing, or storage of state Data outside the control of state-managed and controlled networks.

1.8. Contract Terms and Conditions: The Special Terms and Conditions and the Uniform Terms and

Conditions taken collectively.

1.9. Contractor: The Person identified on the Accepted Offer who has entered into the Contract with the State.

1.10. Contractor Indemnitor: Contractor or any of its owners, officers, directors, agents, employees, or

Subcontractors.

1.11. Co-Op Buyer: A member of the State Purchasing Cooperative that has entered into a

“Cooperative Purchasing Agreement” with the Arizona Department of Administration State

Procurement Office under A.R.S. § 41-2632. Unless there is an applicable Cooperative

Purchasing Agreement in effect at the time, a State Purchasing Cooperative member cannot be a Co-Op Buyer. For reference, “Co-Op Buyer” is to be construed as encompassing an “eligible procurement unit” under A.A.C. R2-7-101(23).

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 I.R.S. under Section 501(c)(3) through 501(c)(6) of the tax code.

1.12. Data Breach: Data Breach is used herein as defined as stated in A.R.S. Title 18, chapter 5, article

4 (Data Security Breaches), or in any relevant state or federal standard, to indicate an unauthorized acquisition of and unauthorized access that materially compromises the security or confidentiality of unencrypted and unredacted computerized personal information maintained as part of a database of personal information regarding multiple individuals.

1.13. Eligible Agency:

1.13.1. If the Special Terms and Conditions indicate that the Contract is a “single-agency” contract, then “Eligible Agency” means the particular State of Arizona agency, university, commission, or board identified therein.

Description:

Aviation Jet - A Turbine Engine Fuel

Storage/Delivery/Aircraft Fueling Services and

Arizona Department of Public Safety 2102 W. Encanto

Blvd.,

1.13.2. If the Special Terms and Conditions indicate that the Contract is a mandatory statewide contract, then “Eligible Agency” means any State of Arizona department, agency, university, commission, or board.

1.13.3. If the Special Terms and Conditions indicate that the Contract is a “cooperative” contract available for use by Co-Op Buyers, then “Eligible Agency” means any State of Arizona department, agency, university, commission, board, or any Co-Op Buyer.

1.14. Federal Risk and Authorization Management Program (FedRAMP): A federal government program that provides a standardized approach to security assessment, authorization, and continuous monitoring specifically for Cloud products and services relied upon by federal entities that store, process and transmit federal information.

1.15. Instructions to Offerors: The Solicitation Instructions document of the Solicitation.

1.16. NIST: NIST is the National Institute of Standards and Technology. For more information, see https://www.nist.gov/.

1.16.1. NIST Low Impact: If a Contractor may process, transmit, or store non-sensitive State

Data, metadata, and/or Data that may be released to the public that requires no additional levels of protection during its work under the Contract, then the Contractor shall follow the NIST Low Impact security controls as directed by the State Chief

Privacy Officer (Enterprise Security, Privacy & Risk Compliance team).

1.16.2. NIST Moderate Impact: If a Contractor may process, transmit, or store one or more of the following types of Data during its work under the Contract, then the Contractor shall complete NIST Moderate Impact security controls (authorized or provisional) status:

1. Personal identifiable information (PII) as defined by U.S Dept. of Labor (DOL);

2. Protective health information (PHI) as defined by HIPAA;

3. Payment card industry (PCI) Data as defined by PCI Security Std. Council (PCI

SSC);

4. Criminal justice information (CJI) Data;

5. Federal tax information (FTI) Data defined by IRS 1075;

6. Data that if lost or unavailable would either be disruptive to government operations or cause a loss of confidence of trust in the government;

7. Directed by the State Chief Privacy Officer (Enterprise Security, Privacy & Risk

Compliance team).

https://www.nist.gov/

Description:

Aviation Jet - A Turbine Engine Fuel

Storage/Delivery/Aircraft Fueling Services and

Arizona Department of Public Safety 2102 W. Encanto

Blvd.,

1.17. Order: The instrument by which the Eligible Agency or Co-Op Buyer authorizes a Contractor to perform some or all of the Work. Whether the Contract will have one Order or many Orders depends on the scope of the Contract and how the State will use it. The Special Terms and

Conditions provide that information. Any of the following are construed as an “Order”: “Purchase order,” “task order,” “service order,” or “job order”.

1.18. State’s eProcurement System: The State’s official electronic procurement system, established pursuant to A.A.C. R2-7-201 as set forth in the Arizona Department of Administration State

Procurement Office policy document Technical Bulletin No. 020, The State’s eProcurement

System–The Official State eProcurement System. Technical Bulletin No. 020 is available online at:

https://spo.az.gov/sites/default/files/documents/files/TB_020_APP_20181024.pdf

1.19. State: With respect to the Contract generally, “State” means the State of Arizona and its department, agency, university, commission, or board that has executed the Contract. With respect to administration or rights, remedies, obligations and duties under the Contract for a given

Order, “State” means each Eligible Agency or Co-Op Buyer who has issued the Order.

1.20. State Indemnitees: Collectively, the State of Arizona, its departments, agencies, universities, commissions, and boards and, and their respective officers, agents, and employees.

1.21. StateRAMP: A non-profit organization that provides a uniform approach to verifying that the cybersecurity of Cloud service providers (CSPs) meets the standards and regulations needed to do business with state and local governments.

1.22. Work: The totality of the Materials and the Services and all the acts of administration, creation, production, and performance necessary to fulfill and incidental to fulfilling all of Contractor's obligations and duties under the Contract in conformance with the Contract and applicable laws.

1.0 Contract Interpretations

1.1. Usage. Where the Contract:

1.1.1. assigns obligations to Contractor, any reference to “Contractor” is to be construed to be a reference to the Contractor and all Subcontractors, whether they are first-tier

Subcontractors, sub-subcontractors, suppliers, sub-suppliers, consultants, or sub-consultants, as well as all of Contractor’s and the Subcontractor’s respective agents, https://spo.az.gov/sites/default/files/documents/files/TB_020_APP_20181024.pdf

Description:

Aviation Jet - A Turbine Engine Fuel

Storage/Delivery/Aircraft Fueling Services and

Arizona Department of Public Safety 2102 W. Encanto

Blvd., representatives, and employees in every instance unless the context plainly requires that it is a reference only to Contractor as apart from Subcontractors.

1.1.2. uses the permissive “may” with respect to a party’s actions, determinations, etc., the terms is to be interpreted as in A.A.C. R2-7-101(32) [Definitions]. For clarity of intent, any right given to State using “State may” or a like construction denotes discretion and freedom to act so far as any regulatory or operative constraints permit in the relevant circumstances, provided that: (a) where written “may, at its discretion,” the discretion extends to whatever is most advantageous to State; and (b) where written only as

“may,” the discretion is constrained by what is fair, reasonable, and as accommodating of the respective best interests of both parties as practicable under the circumstances;

1.1.3. uses the imperative “shall” with respect to a party’s actions, duties, etc., the term is to be interpreted as in A.A.C. R2-7-101(44) [Definitions]. Conversely, the phrase “shall not” is to be interpreted as an imperative prohibition.

1.1.4. uses the term “must” with respect to a requirement, criterion, etc., the term is to be interpreted as conveying compulsion or strict necessity;

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

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

1.2. Contract Order of Precedence

1.2.1. Complementary Documents. All of the documents forming the Contract are complementary. If certain work, requirements, obligations, or duties are set out only in one but not in another, Contractor shall carry out the Work as though the relevant

Work, requirements, obligations, or duties had been fully described in all, consistent with the other documents forming the Contract and as is reasonably inferable from them as being necessary to produce complete results.

1.2.2. Conflicts. In case of any inconsistency, conflict, or ambiguity among the documents forming the Contract and their provisions, they are to prevail in the following order, descending from most dominate to most subordinate, provided that, among categories of documents or provisions having the same rank, the document or provision with the

Description:

Aviation Jet - A Turbine Engine Fuel

Storage/Delivery/Aircraft Fueling Services and

Arizona Department of Public Safety 2102 W. Encanto

Blvd., latest date prevails. Information being identified in one document, but not in another, is not to be considered a conflict or inconsistency.

1.2.2.1. Contract Amendments;

1.2.2.2. The final Solicitation Documents, in the following order:

(1) Special Terms and Conditions;

(2) Exhibits to the Special Terms and Conditions;

(3) Uniform Terms and Conditions;

(4) Scope of Work;

(5) Exhibits to the Scope of Work;

(6) Specifications; and

(7) Any other documents referenced or included in the

Solicitation;

1.2.2.3. Orders, in reverse chronological order; and

1.2.2.4. Accepted Offer.

1.2.3. Attachments and Exhibits. For clarity of intent, if an item was an Attachment in the

Solicitation Documents or an Offer (either Initial, Revised, Best and Final, or Accepted) and was subsequently made into an Exhibit, or its content was incorporated into one of the other Contract documents, then that Attachment no longer exists contractually as an “Attachment” since it has at that point been made into some other

Contract document. In every other case, an Attachment and the Offeror Data therein remain part of the Accepted Offer for purposes of precedence and contractual effect.

2.0 Contract Administration and Operation

2.1 Term of Contract. The term of the Contract will commence on the date indicated on the Offer and Acceptance and continue for twelve (12) months unless canceled, terminated, or permissibly extended.

Description:

Aviation Jet - A Turbine Engine Fuel

Storage/Delivery/Aircraft Fueling Services and

Arizona Department of Public Safety 2102 W. Encanto

Blvd.,

2.2 Contract Extensions. This Contract may be extended for supplemental periods up to a maximum of 48 months for a total contract term not to exceed five (5) years.

2.3 Eligible Agency. This contract is a single-agency contract for the sole use of the Department of Public Safety.

2.4 Estimated Quantities: The contract references quantities as a general indication of the needs of DPS. Although the State anticipates routine usage during the term of the contract, quantities referenced herein are estimates only. No commitment of any kind is expressed or implied as to quantities actually purchased during any resultant contract term. This fact should be taken into consideration by the contractors.

2.5 Delivery, Response Times: Due to the 24 hour per day, seven day per week nature of DPS’

Aviation operations, fuel shall be delivered to the aircraft as promptly as possible. Deliveries shall be made within 45 minutes ARO and/or as per phone call request. A delivery ticket shall be provided which delineates the contractor’s name, address, type of fuel and the amount of fuel dispatched. A ticket shall be provided with each delivery. The contractor shall be responsible for clean-up of any spillage incurred during the delivery.

2.6 Click-through Terms and Conditions: If either party uses a web-based ordering system, an electronic purchase order system, an electronic order acknowledgement, a form of an electronic acceptance, or any software based ordering system with respect to the Contract each an “Electronic Ordering System”), the parties acknowledge and agree that an Electronic Ordering System is for ease of administration only, and

Contractor is hereby given notice that the persons using Electronic Ordering Systems on behalf of State do not have any actual or apparent authority to create legally binding obligations that vary from the terms and conditions of the Contract. Accordingly, where an authorized State user is required to “click through” or otherwise accept or be made subject to any terms and conditions in using an Electronic Ordering System, any such terms and conditions are deemed void upon presentation. Additionally, where an authorized State user is required to accept or be made subject to any terms and conditions in accessing or employing any Materials or Services, those terms and conditions will also be void.

3.0 Costs and Payments

Description:

Aviation Jet - A Turbine Engine Fuel

Storage/Delivery/Aircraft Fueling Services and

Arizona Department of Public Safety 2102 W. Encanto

Blvd.,

3.1 Pricing. Price for products available on this contract as needed shall be obtained prior to services being rendered via a quote in writing with all expenses listed, subject to approval by

DPS.

3.2 Contractor’s Best Pricing. Contractor warrants that, for the term of the Contract, the prices and discounts set out in the Attachments titled Pricing, including any subsequent agreed amendment to it (the “Contract Pricing”), shall be equal to or better than the lowest prices and largest discounts, both separately and in combination, at which Contractor sells equivalent services, items of equipment, and materials.

3.2.1 That price-plus-discount equivalence (“Contractor’s Best Pricing”) is intended to be irrespective of whether or not those other sales have special purchase terms, conditions, rebates, or allowances.

3.2.2 If Contractor’s Best Pricing for equivalent services, items of equipment, and materials is better than the Contract Pricing, then Contractor agrees to adjust the

Contract Pricing to match the Contractor’s Best Pricing for all sales related to the

Contractor made after the date when the Contractor’s Best Pricing was first better than the Contract Pricing.

3.2.3 For clarification of intent, that date is intended to be the date when the difference first occurred, which might have been before the difference was first identified. If the difference occurred before it was identified, then Supplier agrees to charge less than the Contract Pricing until the extended difference that would have been realized (i.e. if the Contractor’s Best Pricing had been applied when it should have been) has been settled.

3.3 Taxes Not Included in Price. Contract prices shall not include applicable state and local taxes. The state shall pay all applicable taxes. Taxes must be listed as a separate item on all invoices.

3.4 Fixed catalog discount pricing for the first twelve (12) month period cannot be modified.

3.5 Price Adjustment (annual): DPS may review a fully documented request for a price adjustment only at the time of contract extension (annual). The request shall be based upon a significant cost burden to the Contractor that was clearly unpredictable at the time of the offer and is directly correlated to the price of the product/service contractually covered. A price adjustment shall only be considered at the time of a contract extension and shall be a factor in the extension review process.

Description:

Aviation Jet - A Turbine Engine Fuel

Storage/Delivery/Aircraft Fueling Services and

Arizona Department of Public Safety 2102 W. Encanto

Blvd.,

3.5.1 Formal request for price adjustments shall be initiated by the Contractor 120 days in advance of the contract extension date in order to allow DPS sufficient time to evaluate and disposition the request.

3.5.2 DPS, at its sole discretion may; a) Approve the request; b) deny the request; c) require additional information concerning the request; or c) pursue any alternate option considered to be in the best interest of the State, inclusive of, but may not be limited to re-soliciting the requirement. Approvals shall be in the form of an official contract amendment.

4.0 Contract Changes

4.1 Signing of Contract Amendments. The contractor’s counter-signature (or “approval” in the

State’s eProcurement system, in the case of an amendment) is not required to give effect if the

Contract Amendment only covers:

4.1.1 extension of the term of the Contract within the maximum aggregate term; or

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

In every case other than those listed in 5.1.1 and 5.1.2 above, both parties’ signatures (or

“approval” in the State’s eProcurement system in the case of an amendment) are required to give it effect.

5.0 Ordering Process

5.1 DPS may purchase the specific materials contractually covered through contract direct release purchase orders issued by DPS to the Contractor. No work shall be performed without a duly authorized/issued purchase order(s). Any attempt to represent any material and/or service not specifically awarded under the contract is a violation of the contract and the Arizona

Procurement Code. Any such action shall be subject to all legal and contractual remedies available to the state inclusive of, but not limited to, contract termination, cancellation, suspension and/or debarment of the Contractor.

5.2 Order Terms. All Orders are subject to the Contract Terms and Conditions; an Order cannot modify the Contract Terms and Conditions. Any Contractor terms added to quotes or otherwise unilaterally added to Eligible Agency or Co-Op Buyer Orders are null and void.

5.3 Orders are Obligatory. Until the expiration or earlier termination of the Contract, State may issue and Contractor shall accept Orders that make proper reference to e Contract and are permissible hereunder, provided that, Contractor is not obliged to accept any Order that is not consistent with the then-current pricing lead times, specifications, or payment provisions of the

Contract. Contractor shall fulfill and complete any Orders that are begun but not yet completed

Description:

Aviation Jet - A Turbine Engine Fuel

Storage/Delivery/Aircraft Fueling Services and

Arizona Department of Public Safety 2102 W. Encanto

Blvd., as of expiration or earlier termination of the Contract unless State instructs otherwise at the time.

5.4 Order Cancellations. State may cancel Orders within a reasonable period after issuance and at its discretion. The same method used for ordering will be used for cancellation.

5.4.1 If State cancels an Order, then State shall:

5.4.2 pay Contractor for any portion of the Materials and Services from that Order that have been properly delivered or performed as of the cancellation effective date; and

5.4.3 reimburse Contractor for actual, documented costs incurred in fulfilling the Order up to the cancellation effective date and the cost of any obligations incurred in fulfilling the Order up to the cancellation effective date that demonstrably cannot be canceled or that have pre-established cancellation penalties specified in the levant

Subcontracts, to the extent the penalties are reasonable and customary for the work in question

5.4.4 Contractor shall not charge or be entitled to charge State for any new costs it incurs after receiving the cancellation notice; State is not liable for any Materials that were produced, shipped, or delivered, or Services that were performed before Contractor had acknowledged the corresponding Order.

5.4.5 State shall also be able to cancel Orders freely and without any further obligation at any time prior to Contractor’s formal acknowledgement of the Order

6.0 Billing

6.1 All billing notices shall reference the Contract Number on which the order is based, the

Department’s request reference number (see document header information), an itemized list of products or services supplied. Products are to be identified by the name, model number, contract number, line item number, and serial number if applicable.

• Invoice Information:

• Arizona Dept of Public Safety

• PO Box 6638 MD 1330

• Phoenix, AZ 85005

• Email: accountspayable@azdps.gov

• Phone 602-223-2445

• Fax: 602-223-2347 mailto:accountspayable@azdps.gov

Description:

Aviation Jet - A Turbine Engine Fuel

Storage/Delivery/Aircraft Fueling Services and

Arizona Department of Public Safety 2102 W. Encanto

Blvd.,

6.2 Minimum Invoice Requirements. Every invoice shall include the following information:

6.2.1.1 Bill-to name and address;

6.2.1.2 Contractor name and contact information;

6.2.1.3 Remit-to address;

6.2.1.4 Invoice number and date;

6.2.1.5 State contract number;

6.2.1.6 Order number (APP PO number);

6.2.1.7 Material or Service description (itemized);

6.2.1.8 Date(s) Services were performed or Materials were delivered;

6.2.1.9 Applicable payment terms;

6.2.1.10 Quantity delivered or performed;

6.2.1.11 Line item unit of measure;

6.2.1.12 Item price;

6.2.1.13 Extended pricing;

6.2.1.14 Receipt for pass-through expenses (if applicable);

6.2.1.15 Taxes (as a separate invoice line item), including the percentage used to calculate taxes;

6.2.1.16 Mailing fees (if applicable); and

6.2.1.17 Total invoice amount due.

6.3 No Invoice Without Authorization. Contractor shall not seek payment for any:

6.3.1 Materials or Services that have not been authorized on an acknowledged Order;

6.3.2 Expediting, overtime, premiums, or upcharges absent State’s express prior approval; or

6.3.3 Materials or Services that are the subject of a Contract Amendment t that has not been fully signed by the Procurement Officer

7.0 Payment

7.1 Payments shall be made in accordance with A.R.S. Titles 35 and 41.

7.2 Contractor shall accept electronic payment from the State principally through, but not limited to, electronic transfer via Automated Clearing House remittance. The State also may make payment, at its discretion, by payment card, credit card, debit card, warrant, federal wire, etc.

Description:

Aviation Jet - A Turbine Engine Fuel

Storage/Delivery/Aircraft Fueling Services and

Arizona Department of Public Safety 2102 W. Encanto

Blvd., Contractor shall cooperate with the State by providing the State information – including, but not limited to Contractor’s bank information – to support the State’s selected means of payment.

The Contractor shall not charge the State an amount to recover any convenience fee, discount fee or service fee related to the acceptance of the State’s payment.

7.3 Unless otherwise specified in the Contract, the Contractor shall offer as standard payment terms a discount of 2% for payments made within 10 days and full payment due in 30 days (generally referred to as “2/10, net 30”).

8.0 Licensing

8.1 Contractor(s) performing work within the State of Arizona shall, as applicable be properly licensed for the Scope of Work in which they are contracting.

8.2 Safety Standards/Contractor Policies: Contractor shall comply with all local, state and federal laws in effect for conducting its business during the term of the contract. Additionally the

Contractor shall maintain policies and procedures relating to fire safety and other safety issues during the term of the contract. The Contractor shall make all such policies and procedures available DPS for inspection upon request. Failure to maintain such policies and procedures or failure to make them available to DPS for inspection may result in contract termination.

8.3 Protection of DPS Buildings, Adjacent Structures, Equipment, Grounds and Vegetation:

Contractor shall use reasonable care to avoid damaging existing furniture, buildings, adjacent structures, equipment, grounds and vegetation at the worksite during the term of the contract.

All Contractor caused damage shall be repaired or replaced immediately or as mutually agreed upon by the Contractor and DPS. Repairs and/or replacements shall be subject to approval by

DPS. All costs associated with the repair and/or replacement of Contractor caused damage shall be borne by the Contractor. Should the Contractor fail or refuse to make such repairs or replacements within established time frames and or to the satisfaction of DPS, the Contractor shall be subject to all legal and contractual remedies available to DPS inclusive of, but not limited to, deduction from the contract price, contract termination, suspension and/or debarment.

9.0 I. T. 508 Compliance

9.1 Unless specifically authorized in the Contract, any electronic or information technology offered to the State of Arizona under this contract shall comply with A.R.S. §41-2531 and §41-2532 and Section 508 of the Rehabilitation Act of 1973, which required that employees and members of the public shall have access to and use information technology that is comparable

Description:

Aviation Jet - A Turbine Engine Fuel

Storage/Delivery/Aircraft Fueling Services and

Arizona Department of Public Safety 2102 W. Encanto

Blvd., to the access and use by employees and members of the public who are not individuals with disabilities.

10.0 Risk and Liability

10.1 Risk of Loss. Contractor shall bear all risk of loss to Materials while in pre-production, production, storage, transit, staging, assembly, installation, testing, and commissioning, if and as those duties are within the scope of the Work, until they have been accepted as conforming by State in the particular location and situation specified in the Order, or as specified generally elsewhere in the Contract if the Order does not provide particulars, provided that, risk of loss for nonconforming Materials will remain with Contractor notwithstanding acceptance to the extent the loss stems from the nonconformance.

10.2 General Contractor Indemnification and Insurance Requirements

10.2.1 Contractor Indemnification (Not Public Agency). 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 Subcontractor(s) is/are an agency, board, commission or university of the State of

Arizona.

Description:

Aviation Jet - A Turbine Engine Fuel

Storage/Delivery/Aircraft Fueling Services and

Arizona Department of Public Safety 2102 W. Encanto

Blvd.,

10.2.2 Public Agency Language Only. Each party (as 'indemnitor') agrees to indemnify, defend, and hold harmless the other party (as 'indemnitee') from and against any and all claims, losses, liability, costs, or expenses (including reasonable attorney's fees)

(hereinafter collectively referred to as 'claims') arising out of bodily injury of any person

(including death) or property damage but only to the extent that such claims which result in vicarious/derivative liability to the indemnitee, are caused by the act, omission, negligence, misconduct, or other fault of the indemnitor, its officers, officials, agents, employees, or volunteers."

10.2.3 Warranties: The Contractor warrants:

10.2.3.1 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

Specific Remedies. Unless expressly stated otherwise elsewhere in the Contract, State’s remedy for breach of warranty under paragraph 15.8 includes, at State’s discretion, re performance, repair, replacement, or refund of any amounts paid by State for the nonconforming

Work, plus (in every case) Contractor’s payment of State’s additional, documented, and reasonable costs to procure materials or services equivalent in function, capability, and performance that was first called for. For clarification of intent, the foregoing obligations are limited by the limitation of liability in paragraph 14.7. If none of the foregoing options can reasonably be affected, or if the use of the materials by State is made impractical by the nonconformance, then

State may seek any remedy available to it under law.

10.2.4 Insurance Requirements: Addendum A to the Special Terms and Conditions:

Contractor Insurance Requirements is incorporated herein as part of the Special

Terms and Conditions.

Addendum A to the Special Terms and Conditions

Arizona Department of Public Safety

Direct Contract

CTR078905

Description:

Aviation Jet - A Turbine Engine Fuel Storage/Delivery/Aircraft Fueling Services

Addendum A - Contractor Insurance Requirements

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.

Insurance Requirements

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

The Insurance Requirements herein are minimum requirements for this Contract and in no way limit the indemnity covenants contained in this Contract. The State of Arizona in no way warrants

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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.

Minimum Scope and Limits of Insurance

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

Commercial General Liability (CGL) – Occurrence Form

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

• General Aggregate $1,000,000

• Products – Completed Operations Aggregate $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.

Business Automobile Liability

Bodily Injury and Property Damage for any owned, hired, and/or non- owned automobiles

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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.

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).

Additional Insurance Requirements

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

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

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

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).

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.

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.

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All such certificates of insurance and policy endorsements must be received by the State before work commences. The State’s receipt of any certificates of insurance or policy endorsements that do not comply with this written agreement shall not waive or otherwise affect the requirements of this agreement.

Each insurance policy required by this Contract must be in effect at, or prior to, commencement of work under this Contract. Failure to maintain the insurance policies as required by this

Contract, or to provide evidence of renewal, is a material breach of contract.

All certificates required by this Contract shall be sent directly to the Department. The State of

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

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.

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.

Exceptions

In the event the Contractor or subcontractor(s) is/are a public entity, then the Insurance

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

Uniform Terms and Conditions

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Uniform Terms and Conditions 10.5

1. Definition of Terms. As used in this Solicitation and any resulting Contract, the terms listed below are defined as follows:

1.1. “AI” means the science and engineering of making machines capable of performing tasks that are typically associated with human intelligence, such as learning and problem-solving, and includes without limitation: AI systems, classic AI, external AI, generative AI, and large language model (LLM) AI.

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

1.3. “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.

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

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

1.6. “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.

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

1.8. “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.

1.9. “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.

1.10. “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.

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1.11. “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.

1.12. “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.

1.13. “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.

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

1.15. “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.

1.16. “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;

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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 Parol 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.