Salt_River_Horse_Management_RFP_2018_version_1_0.doc

Arizona Department of Agriculture Arizona Department of Agriculture

1688 W Adams St

Phoenix, AZ 85007

Solicitation No.: ADSPO18-00683862

Page

Description: Salt River Horse Mgmt

Request for Proposal (RFP) Competitive proposals for the Services specified will be received online by the Arizona Department of Agriculture (AZDA) through the State’s e-Procurement system, ProcureAZ (https://procure.az.gov) at the date and time listed below.

Description: The Arizona Department of Agriculture is requesting proposals for the management of the Salt River horses.

Objective: To secure one or more entities to provide short-term management of the Salt River Horses to establish herd population, maintain overall health conditions, and address population growth. A comprehensive herd health assessment will be due within 60 days of the contract start date and then due quarterly. Costs for this procurement are to be borne by the successful respondent(s).

Bidder’s Meeting: If deemed necessary by the Department, a bidder’s meeting may be scheduled to answer questions concerning this RFP. If such a meeting becomes necessary, specific instructions on where the meeting will take place will be uploaded to RFP though ProcureAZ.

Due Date and Time: Offers shall be received until 05:00 p.m. MST on April 30, 2018.

Submittals: All submittals must be made utilizing the State of Arizona’s procurement portal, ProcureAZ. For step-by-step instructions for completing a quotation, please read:

https://spo.az.gov/sites/default/files/Step-by-Step%20Responding%20to%20Solicitations%20v12.pdf .

Additional information regarding submittal instructions is located within this document in the Special Instructions section. The Uniform Instructions and Uniform Terms and Conditions are included by reference and are available on the following website:

https://spo.az.gov/administration-policy/state-procurement-resource/standard-forms-and-documents Questions: Inquiries regarding the Solicitation can be made by email to the contact person:

Doug Marsh

Laboratory Director

Chief Procurement Officer

Arizona Department of Agriculture dmarsh@azsal.gov Vendors are strongly encouraged to carefully read the entire solicitation.

Background

On May 11, 2016, Governor Ducey signed H.B. 2340 (Laws 2016, 2nd Regular Session, Chapter 136), which amends Arizona Revised Statute (A.R.S) to add an article that protects the Salt River horse herd (SRHH). This newly added article (a) protects the horses from being harassed, shot, injured, killed, or slaughtered; (b) requires written authorization from the Arizona Department of Agriculture (AZDA) or the Maricopa County Sheriff’s Office (MCSO) before interacting with a horse from the herd; (c) clarifies that horses from the SRHH are not considered stray livestock under Arizona law; and (d) directs the AZDA to enter into an agreement with the U.S. Forest Service to implement this article or to address any issues relating to the SRHH. Section 2 of H.B. 2340 requires the AZDA and U.S. Forest Service to enter into an intergovernmental agreement pursuant to A.R.S. §11-952 for the law to become effective.

After H.B. 2340 was signed into law, the AZDA began holding meetings with the U.S. Forest Service to draft the intergovernmental agreement. In total, the AZDA held 45 meetings. This led to the agreement being signed by both parties on December 28, 2017, which is the effective date of H.B. 2340.

The agreement includes the following provisions:

· The U.S. Forest Service will fund a collaborative process with the goal of creating a management plan for the SRHH. Both the AZDA and U.S. Forest Service will be active participants in the collaborative process.

· The collaborative process is intended to incorporate scientific and ecological principals into the management plan.

· Prior to the completion of the collaborative group’s management plan, the AZDA will secure one or more third parties to address issues related to the Salt River through their procurement laws. The responsibilities of the third party(ies) will include an equine birth control program, veterinary treatment for sick or injured horses, proper removal of dead horses, and reporting requirements.

· Upon completion of the collaborative group’s management plan, the AZDA will secure one or more third parties to implement the management plan through their procurement laws.

Scope of Work A successful applicant will provide the short-term management of the SRHH by completing a work plan covering the following responsibilities:

1. Provide a comprehensive herd health assessment within 60 days of the contract start date; provide updated assessments each quarter

2. Create and administer an equine birth control program designed to control the population of the SRHH

3. Monitor, identify, and seek veterinary treatment for any injured/ill Salt River horses

4. Remove dead horses from the Salt River horse area

5. Implement emergency plans for drought and other situations to manage the SRHH

6. Provide and distribute any necessary supplemental feed and/or water

7. Turn branded and/or gelded/spayed horses over to the owner or applicable government agency

8. Receive written authorization from the AZDA or MCSO prior to interacting with a Salt River horse

9. Remove Salt River horses with a very low Body Condition Score to include placement of removed horses

10. Provide reports at the joint meetings of the AZDA and U.S. Forest Service on the inventory of the SRHH, including health findings or any other matters relevant to the management of the SRHH Respondent Qualifications:

A party interested in responding to this RFP shall provide examples of their knowledge, skills, and abilities and a description of situations where they were involved with:

· Interacting with horses that have not had direct or hands-on human contact

· Eco diversity and managing horses on large areas of land

· Knowledge of health and/or caring for a horse at different stages of life

· Ability to safely provide hands-on care to an undomesticated horse in the event of an emergency

Other Qualifications:

A party interested in responding to this RFP shall provide the following information:

· Organization profile including any proposed sub organizations

· Organization background and history

· 501c3 information, if applicable

· Financial information including funding resources, profit and loss statements, and balance statements

· Education, resumes and applicable licenses and certifications

· At least three business and three personal references

· A description of any computer system and/or software which will be used for tracking horses

Respondent Emergency Plan A party interested in responding to this RFP shall provide a written action plan for emergencies. Please include who will respond from your entity and their experience, the veterinarian that will attend, the equipment that you have available, and how the organization would cover costs incurred with the emergency.

Respondent Horse Management Plan Please provide a sample herd management plan for approximately 400 horses that currently reside on roughly 19,000 acres. Please include information regarding herd maintenance, target parameters for impact of birth control implementations, and information to support a successful management plan.

Financial Plan Please provide a sample financial plan for funding the costs associated with managing non domesticated horses on public lands.

Evaluation Criteria

The Department will evaluate the proposals utilizing the following criteria:

· Completeness of submission – 20%

· Qualifications of the respondent – 20%

· Completeness and thoroughness of the emergency plan – 10%

· Completeness and thoroughness of the horse management plan – 20%

· Fiscal competence – 30% The Department may award a contract to one or more successful respondents.

Special Terms and Conditions

1. Definition of Key Words Used in the RFQ:

1.1. "A.A.C." means the Arizona Administrative Code.

1.2. "A.R.S." means the Arizona Revised Statutes.

1.3. "Best and Final Offer" means a revision to an Offer submitted after negotiations are completed that contains the Vendor’s most favorable terms for price, service, and products to be delivered, which is sometimes referred to as the Final Proposal Revision.

1.4. "Contract," as defined in the Uniform Terms and Conditions, also includes any written clarifications included in the Offer or Solicitation.

1.5. "eProcurement (Electronic Procurement)" means conducting all or some of the procurement function over the Internet. Point, click, buy and ship Internet technology is replacing paper-based procurement and supply management business processes. Elements of eProcurement also include Invitation for Bids, Requests for Proposals, and Request for Quotations.

1.6. “Important" indicates the requirement is of great importance to the Department of Agriculture's evaluation of the bid, but the Department of Agriculture does not intend to disqualify a bid if the requirement is not met.

1.7. "Key Personnel" means the individuals listed in the Vendor’s Attachment 2.

1.8. "Department of Agriculture" means the Arizona Department of Agriculture Commission and includes the State of Arizona.

1.9. “Materials” means, in addition to the definition in the Uniform Terms and Conditions, any products provided under a contract resulting from an award of this solicitation.

1.10. "May" indicates something that is not mandatory but permissible.

1.11. "Offer" means a response to a Solicitation.

1.12. "Vendor" means a person who responds to a Solicitation.

1.13. "Person" means any corporation, business, individual, union, committee, club, or other organization or group of individuals.

1.14. "Shall, Must" indicates a mandatory requirement. Failure to meet these mandatory requirements may result in the rejection of a bid as non-responsive.

1.15. “Should" indicates something that is recommended but not mandatory. If the Vendor fails to provide recommended information, the Department of Agriculture may, at its sole option, ask the Vendor to provide the information or evaluate the bid without the information.

1.16. "Small business" means a for-profit or not-for-profit organization, including its affiliates, with fewer than100 fulltime employees or gross annual receipts of less than $4 million for the last complete fiscal year.

1.17. "Solicitation" means an Invitation for Bids ("IFB"), a Request for Technical Offer, a Request for Proposal ("RFP"), a Request for Quotation ("RFQ"), or any other invitation or request issued by the purchasing agency to invite a person to submit an Offer.

1.18. "Solicitation Amendment" means a change to a Solicitation issued by the Procurement Officer.

1.19. “Subcontractor” is any person who, or entity that, has a Subcontract with the State under this Solicitation.

2. Term of Contract The term of any resultant contract shall commence on the date of award and shall continue until the completion of the contract not to exceed one year.

3. Offer Acceptance Period Proposals shall be irrevocable offers for ninety (90) days after the bid due date, or, in the case of a Best and Final Offer, a respondent shall hold its Offer open for ninety (90) days from the Best and Final Offer due date.

4. Contract Extensions This contract may be renewed but shall not exceed 5 years in total length.

5. Price Increase This is anticipated to be a zero cost contract to the State of Arizona with all costs borne by the successful contractors.

6. Insurance

6.1 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.

6.2 Insurance Requirements

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

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

6.3 Minimum Scope and Limits of Insurance

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

6.3.1 Commercial General Liability (CGL) – Occurrence Form

Policy shall include bodily injury, property damage, and broad form contractual liability coverage. Policy shall include coverage for acts by volunteers.

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

6.3.1.1. 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.

6.3.1.2 The 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.

6.3.2. Business Automobile Liability

Bodily Injury and Property Damage for any owned, hired, and/or non-owned automobiles used in the performance of this Contract with a combined Single Limit (CSL) $1,000,000.

6.3.2.1. 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.

6.3.2.2. 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.

6.3.3.

Workers’ Compensation and Employers' Liability

· Workers' Compensation

Statutory

· Employers' Liability

· Each Accident

· Disease – Each Employee $1,000,000

· Disease – Policy Limit

$1,000,000 6.3.3.1 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.

6.3.3.2 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).

6.3.4 Professional Liability (Errors and Omissions Liability)

· Each Claim

$2,000,000

· Annual Aggregate $2,000,000 6.3.4.1 In the event that the Professional Liability insurance required by this Contract is written on a claims-made basis, Contractor warrants that any retroactive date under the policy shall precede the effective date of this Contract and, either continuous coverage will be maintained, or an extended discovery period will be exercised, for a period of two (2) years beginning at the time work under this Contract is completed.

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

6.4 Additional Insurance Requirements

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

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

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

6.5 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).

6.6 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.

6.7 Verification of Coverage

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

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

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

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

6.8 Subcontractors

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

6.9 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.

6.10 Exceptions

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

7. Eligible Agencies This Contract shall be for the exclusive use of the Arizona Department of Agriculture.

8. Non-Exclusive Contract

8.1. This Contract has been awarded with the understanding and agreement that it is for the sole convenience of the Department of Agriculture. The Department of Agriculture reserves the right to obtain like goods or Services from another source when necessary. Off-Contract purchase authorization(s) may be approved by either the Department of Agriculture (within its delegated authority) or by the State Procurement Office. Approvals shall be at the exclusive discretion of the Department of Agriculture and shall be final. Off-Contract procurement shall be consistent with the Arizona Procurement Code or the Department of Agriculture Procurement Code.

8.2. Contractor shall fully cooperate and carefully coordinate its work with the work of other contractors. The Contractor shall not commit or permit any act which will interfere with the performance of work by any other contractor.

9. Contract Type This shall be a zero cost, service contract.

10. Multiple Awards In order to ensure adequate coverage of the requirements of Department of Agriculture, multiple awards may be made.

11. Negotiation

The Department of Agriculture reserves the right to enter into negotiations prior to final award.

12. Contract Modifications/Amendments

12.1. Any change in the Contract, including but not limited to the specifications described herein, whether by modification or supplementation, must be accomplished by a formal contact amendment signed and approved by and between the dully authorized representatives of the Contractor and the Department of Agriculture and implemented through the State of Arizona purchasing portal. The Contractor expressly and explicitly understands and agrees that no other method nor other document, including correspondence, acts, and oral communications by or from any person, shall be used or construed as an amendment, modification, or supplementation to the Contract.

12.2. Contractor agrees to make changes in a timely manner in such instance where the State of Arizona or federal legislature enacts legislation that impacts Department of Agriculture and require such changes.

12.3. The Procurement Officer may modify at any time, by written order, and without notice to the sureties, the general scope of this Contract in any one or more of the following ways:

12.3.1. Drawings, designs or specifications, if supplies to be furnished are to be specially manufactured for the Department of Agriculture in accordance with the drawings, designs or specifications;

12.3.2. Method of shipment or packing of supplies; and

12.3.3. Place of delivery.

12.4. If any such modification causes an increase or decrease in the cost of, or the time required for the performance of any part of the work under this Contract, whether changed or not changed by the order, the Procurement Officer shall consider an equitable adjustment in the Contract price, the delivery schedule, or both. The Contractor must assert its right to a price adjustment under this clause within thirty (30) days from the date of receipt of the written order.

12.5. The Department of Agriculture may clarify the Contract following award. This clarification shall not substantially alter the contents of the Contract, but shall only edit and reformat the Contract in a manner that will facilitate ease of use, Contract administration, and performance of the parties.

12.6. Any Contract Amendment shall specify an effective date, any increases or decreases in the amount of the Contractor’s compensation, if applicable, and shall be signed by the Contractor and the Procurement Officer.

13. Good Faith Cooperation With The Department of Agriculture The Contractor shall cooperate fully, in good faith, with the Department of Agriculture as may be required in the performance of this Contract. This shall include attendance at meetings, discussion, and hearings, as may be required; presentation of data, as may be requested from time to time by the Department of Agriculture to effect such cooperation; and compliance with all directives issued by the Department of Agriculture. The Contractor shall not commit or permit any act which will interfere with the performance of work by State employees, unless approved by the Department of Agriculture.

The Contractor shall fully coordinate his or her activities in the performance of the Contract with the Department of Agriculture needs. As the work of the Contractor progresses, advice and information on matters covered by the Contract shall be made available by the Contractor to the Department of Agriculture throughout the effective period of the Contract.

14. Termination/Suspension

14.1. In addition to the termination rights listed in the Uniform Terms and Conditions, termination may occur in one of the following ways:

14.1.1. The Contract may be terminated at any time by the Contractor with mutual consent of both the Contractor and the Department of Agriculture. However, the Contractor must provide the Department of Agriculture with at least thirty (30) day’s written notice of said termination.

14.1.2. The Contract may be terminated by the Department of Agriculture if the Contractor engages in any action that might create or result in the appearance of impropriety, such as (a) inappropriately using or divulging of information gathered or discovered pursuant to the performance of its duties under the Contract; (b) acting on behalf of the Department of Agriculture without appropriate authorization; (c) treating anyone with unfair preference or disfavor; (d) exercising discretion in a way that shows partiality, or that could have a political consequence for the Department of Agriculture; (e) taking any action that could affect the public confidence regarding the integrity of the Department of Agriculture.

14.1.3. The Contractor fails to carry out any term, promise, or condition of the Contract. The Department of Agriculture will issue a written seven (7) day notice of default to the Contractor for acting or failing to act as in any of the following:

14.1.3.1. The Contractor provides products that do not meet the requirements of the Contract or are of unacceptable quality to the Department of Agriculture,

14.1.3.2. The Contractor fails to perform the Services required in the Contract adequately and within the time stipulated.

14.1.3.3. The Contractor fails to furnish the required product or Services within the time stipulated in the Contract,

14.1.3.4. The Contractor fails to make progress in the performance of the requirements of the Contract and/or gives the Department of Agriculture a positive indication that they will not or cannot perform the requirements of the Contract,

14.1.3.5. If the Contractor does not correct the above problem(s) within seven (7) days after receiving the notice of default, the Department of Agriculture may cancel the Contract. If the Department of Agriculture cancels the Contract pursuant to this clause, the Department of Agriculture reserves all rights or claims to damages arising from breach of the Contract.

14.2. The time of completion of performance may be extended due to a force majeure event under the Uniform Terms and Condition, but the final termination date of the Contract will not be changed by a delay caused by a force majeure incident.

15. New Equipment and Materials Any equipment or materials purchased by the contractor shall remain their property and any cost shall be borne by the contractor. However, AZDA reserves the right to review and approve such equipment and materials if AZDA feels the quality of such items is pertinent to the success of the Contract.

16. Inspection and Acceptance All Services or Materials are subject to final inspection, review, evaluation and acceptance by the Department of Agriculture. Services or Materials failing to conform to the specifications or requirements of this Contract shall be held at the Contractor's risk and may be returned to the Contractor. If so returned, all costs are the responsibility of the Contractor. The Department of Agriculture may withhold payment for Services or Materials that do not meet Contract standards or Specifications requirements as determined by the Department of Agriculture.

17. Safety Standards All items supplied under this Contract must comply with the current applicable occupational safety and health standards of the State of Arizona Industrial Commission, applicable building and electrical codes, and The National Fire Protection Association Standards.

UNIFORM TERMS AND CONDITIONS

1.0 Definition of Terms

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

1.1 Accepted Offer “Accepted Offer” means the Offer, any amended Offer and any Best and Final Offers.

1.2 Attachment “Attachment” means any item that: (a) the Solicitation required Offeror to submit as part of the Offer; (b) was attached to the Offer when submitted; and (c) was attached, with or without modification from the initial submission, as the case may be, to the Accepted Offer following acceptance by the State.

1.3 Contract “Contract” means the combination of the Solicitation, the Accepted Offer, and any Contract

Amendments.

1.4 Contract Amendment "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 “Contractor” means the Person identified one the signed Offer and Acceptance Form who has entered into the Contract with the State.

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

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

1.8 Gratuity “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 “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 “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 “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 Solicitation “Solicitation” means the Uniform and Special Instructions to Offerors, the Uniform and Special Terms and Conditions, the Scope of Work Document, as applicable, any Specifications, the Compensation Document, and any Solicitation Amendments.

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

1.14 State “State” means the State of Arizona and Department or Agency of the State that executes the

Contract.

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

2.0 Contract Interpretation

2.1 Arizona Law This Contract shall be governed by and shall be interpreted in accordance with the laws of the State of Arizona including the Arizona Procurement Code, Arizona Revised Statutes (A.R.S.) Title 41, Chapter 23, and its implementing rules, Arizona Administrative Code (A.A.C.) Title 2, Chapter

7 without consideration of conflict laws principles

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:

1. the Special Terms and Conditions;

2. any Exhibits to the Special Terms and Conditions

3. the Uniform Terms and Conditions;

4. the Scope of Work Document;

5. any Exhibits to the Scope of Work Document;

6. the Compensation Document;

7. any Exhibits to the Compensation Document;

8. any Specifications;

9. any other documents referenced or included in the Solicitation; and

10. The Offer.

NOTE: The Scope of Work Document may be labeled or referred to in other Contract documents as the “Statement of Work” or “Scope of Work,” but for purposes of applying the foregoing order of precedence, those alternate titles are to be construed as being synonymous with “Scope of Work Documents” wherever they might occur.

2.4 Independent Contractor The Contractor is an independent contractor and shall act in an independent capacity in performance of this Contract. Neither party to this Contract shall be deemed to be the employee or agent of the other party to the Contract.

2.5 Severability Any term or condition deemed illegal or invalid shall be stricken from the Contract and shall not affect any other term or condition of the Contract.

2.6 Complete Integration This Contract, including any documents incorporated by reference, is intended by the parties as a final and complete expression of their agreement. There are no prior, contemporaneous, or additional agreements, either oral or in writing, pertaining to this Contract

2.7 Waiver of Rights 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 and shall not prevent enforcement of any term and condition.

3.0 Contract Administration and Operation

3.1 Records Under A.R.S. § 35-214 and § 35-215, the Contractor shall retain and shall contractually require each subcontractor to retain all data and other “records” relating to the acquisition and performance of the Contract for a period of five years after the completion of the Contract. All such records shall be subject at all reasonable times to inspection and audit by the State for five years after completion of the Contract. Such records shall also be required to be produced at a designated State office if requested. For the purpose of this paragraph, reasonable times shall be during normal business hours and in such a manner so as to not unreasonably interfere with normal business activities.

3.2 Non-Discrimination The Contractor shall comply with State Executive Order No. 2009-09 and all other applicable

Federal and State laws, rules and regulations, including the Americans with Disabilities Act.

3.3 Facilities Inspection and Materials Testing The Contractor agrees to permit access to its facilities, subcontractor facilities and the Contractor’s processes or services, at reasonable times for inspection of the facilities or materials covered under this Contract. The State shall also have the right to test, at its own cost, the materials to be supplied under this Contract. Neither inspection of the Contractor’s facilities nor materials testing shall constitute final acceptance of the materials or services. If the State determines non-compliance of the materials, the Contractor shall be responsible for the payment of all costs incurred by the State for testing and inspection.

3.4 Notices 3.4.1 Notices to Contractor.

Unless otherwise stated in this Contract, notices required to be sent to the Contractor shall be sent to the person indicated on the Offer and Acceptance form submitted by the Contractor.

3.4.2 Notices to the State.

Unless otherwise stated in this Contract, notices to the State required by the Contract shall be made by the Contractor to the “buyer” indicated within the Contract in the State’s e-procurement system, ProcureAZ. The respective person to whom notice shall be given may be updated by written notice to the other party. Amendment to the Contract shall not be necessary for this change.

3.5 Advertising, Publishing and Promotion of Contract The Contractor shall not advertise, promote, or otherwise use information concerning this

Contract for commercial benefit without the prior written approval of the Procurement Officer.

3.6 Ownership of Intellectual Property Unless otherwise stated in the Special Terms and Conditions or Scope of work, the State shall have “Government Purpose Rights” to work product. Government Purpose Rights shall be defined as the unlimited, perpetual, irrevocable, royalty free, non-exclusive, worldwide rights to use, modify, reproduce, release, perform, display, sublicense, disclose, and create derivatives from the work product without restriction for any activity in which the State is a party. “Government Purpose Rights” also includes the right to release or disclose the Work Product outside the State for any State government purpose and to authorize recipients to use modify, release, create derivative works from the work product for any State Government Purpose. Recipients may include U.S. Federal Government, and other state and local governments. “Government Purpose Rights” do not include any rights to use, modify, reproduce, perform, release, display, create derivative works from, or disclose the Work Product for commercial purposes or authorize others to do so.

3.7 E-Verify Requirements In accordance with A.R.S. § 41-4401, Contractor and each subcontractor warrants compliance with A.R.S. § 23-214(A) and all Federal immigration laws and regulations relating to the immigration status of their employees. The State retains the legal right to inspect the papers of any contractor or subcontractor employee who works on the Contract to ensure that the contractor or subcontractor is in compliance with paragraph 3.8. Should the State determine that the contractor and/or any subcontractors are noncompliant, the State may pursue all remedies allowed by law, including, but not limited to: suspension of work, termination of the Contract for default and suspension and/or debarment of the contractor.

3.8 Offshore Performance of Work Prohibited Any services that are described in the specifications or scope of work that directly serve the State or its clients and involve access to secure or sensitive data or personal client data shall be performed within the defined territories of the United States. Unless specifically stated otherwise in the specifications, this paragraph does not apply to indirect or 'overhead' services, redundant back-up services or services that are incidental to the performance of the Contract. This provision applies to work performed by subcontractors at all tiers.

3.9 Purchase Orders The Contractor shall, in accordance with all terms and conditions of the Contract, fully perform and shall be obligated to comply with all purchase orders received by the Contractor prior to the expiration or termination of this Contract, unless otherwise directed in writing by the Procurement Officer, including, without limitation, all purchase orders executed but not fully performed and satisfied prior to the expiration or termination of this Contract

4.0 Costs and Payments

4.1 Payments Payments shall comply with A.R.S. Titles 35 and 41. Payment for goods and services supplied by under this Contract shall be made in full within thirty days after receipt of goods or services and a complete and accurate invoice for payment has been received by the State. In order to receive payment from the State, the Contractor shall be registered in the State’s e-procurement system, Procure AZ, and have a current IRS W9 Form on file with the State, unless not required by law.

4.2 Delivery Unless stated otherwise in the Contract, all prices shall be F.O.B. Destination and shall include all freight delivery and unloading at the destination.

4.3 Applicable Taxes 4.3.1 Payment of Taxes.

The Contractor shall be responsible for paying all applicable taxes.

4.3.2 State and Local Transaction Privilege Taxes.

The State is subject to all applicable state and local transaction privilege taxes. Transaction privilege taxes apply to the sale and are the responsibility of the seller to remit. Failure to collect such taxes from the buyer does not relieve the seller from its obligation to remit taxes.

4.3.3 Tax Indemnification.

Contractor and all subcontractors shall pay all Federal, state and local taxes applicable to its operation and any persons employed by the Contractor. Contractor shall, and require all subcontractors to hold the State harmless from any responsibility for taxes, damages and interest, if applicable, contributions required under Federal, and/or state and local laws and regulations and any other costs including transaction privilege taxes, unemployment compensation insurance, Social Security and Worker’s Compensation.

4.4 Availability of Funds In accordance with ARS § 35-154, every payment obligation of the State under the Contract is conditioned upon the availability of funds appropriated for payment of such obligation. If funds are not appropriated and available for the continuance of this Contract, this Contract may be terminated by the State at the end of the period for which funds are available or at the State’s option, may allow appropriate amendment to the contract. No liability shall accrue to the State in the event this provision is exercised, and the State shall not be obligated or liable for any future payments or for any damages as a result of termination under this paragraph.

5.0 Contract Changes

5.1 Change Orders / Amendments This Contract is issued under the authority of the Procurement Officer who signed this Contract. The Contract may be modified only through a Contract Change Order / Amendment within the general scope of the Contract. Changes to the Contract, directed by a person who is not specifically authorized by the procurement officer or made unilaterally by the Contractor are void and without effect, and the Contractor shall not be entitled to any claim under this

Contract based on those changes.

5.2 Subcontracts 5.2.1 Approval Required

The Contractor shall not enter into any Subcontract under this Contract for the performance of this Contract without the advance written approval of the Procurement Officer. The Contractor shall submit a formal, written request on Contractor’s company letterhead, signed by an authorized representative of the Contractor, and containing the following information:

(a) The subcontractor’s name, address, phone number, e-mail, and primary point of contact. (b) The certifications required of the subcontractor (if any).

(c) The subcontractor’s small business status (if applicable).

(d) The type of goods and/or services to be provided by the subcontractor.

(e) The amount of time or effort (as a percent of total Contract performance) that the subcontractor will perform in relation to total performance of the Contract’s requirements.

(f) The quality assurance measures that the Contractor will use to monitor the subcontractor’s performance.

5.2.2 Additional Information

The State reserves the right to request additional information deemed necessary about any proposed subcontractor. The subcontract shall incorporate by reference the terms and conditions of this Contract.

5.3 Assignment and Delegation The Contractor shall not assign any right nor delegate any duty under this Contract without the prior written approval of the Procurement Officer. The State shall not unreasonably withhold approval.

6.0 Risk and Liability

6.1 Risk of Loss The Contractor shall bear all loss of conforming material covered under this Contract until received by authorized personnel at the location designated in the purchase order or Contract. The risk of loss for nonconforming materials shall remain with the Contractor regardless of receipt.

6.2 Indemnification 6.2.1 Contractor / Vendor Indemnification (Not Public Agency).

To the fullest extent permitted by law, Contractor shall defend, indemnify, and hold harmless the State, and its departments, agencies, boards, commissions, universities as defined by this Contract, and their respective officers, agents, and employees from any and all liabilities, damages, losses, investigative and other related costs, including reasonable attorney fees and court costs due to the injury or death of any individual, or the loss or damage to any real or tangible personal property, but only to the extent caused by the negligence, recklessness or intentional wrongful conduct of contractor or any of its affiliates, agents, volunteers, subcontractors, or any other persons employed or used by the contractor in the performance of the Contract or subcontract. The State, its departments, agencies, boards, and commissions shall be responsible for its own negligence.

6.2.2 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."

6.2.3 Indemnification – Patent and Copyright.

With respect solely to Materials provided or proposed by Contractor or Contractor's agents, employees, or subcontractors (each a “Contractor Party”) for performance of this Contract, Contractor shall indemnify, defend and hold harmless the State, against any third-party claims for liability, costs and expenses, including but not limited to reasonable attorneys' fees for infringement or violation of any patent, trademark, copyright or trade secret by any product or service provided or proposed by Contractor in performance of this Contract. If the Contractor is a public agency, this paragraph shall not apply

6.2.4 Limitation of Liability

State’s and Contractor’s respective liability arising from or related to the Contract will be limited to the greater of $1,000,000 (one million dollars) or three times the purchase price of the specific equipment, software, or services giving rise to the claim, except in the case of a party’s gross negligence or willful misconduct. For the purposes of this section, purchase price will mean the total aggregate price of the contract or if multiple purchase orders will be issued under the Contract (e.g. if it is an Arizona statewide contract), purchase price will mean the total price of the purchase order for the product or services that gave rise to the loss so that Contractor will have a separate limitation of liability for each purchase order under the Contract. This section applies to direct, indirect, incidental, special, punitive, and consequential damages relating to the products or services provided under the Contract, regardless of the legal theory under which such liability is asserted.