Stantec_Attachment_F_-_Conformance_Statements (1).pdf

Request for Proposal

Solicitation No. BPM005664

Advanced Water Purification Technical Support

Arizona Department of Environmental Quality - Procurement Office

1110 W. Washington St.

Phoenix, AZ 85007

Solicitation Attachment – Conformance Statements | Revision No. 1 | Revised 11-22

Attachment F – Conformance Statements

If taking exceptions, the relevant subsequent pages titled “Attachment Supplements” must be completed.

Attach additional pages as needed.

STATE WILL NOT CONSIDER ANY EXCEPTIONS UNLESS DESIGNATED ON THIS FORM.

READ ALL INSTRUCTIONS TO OFFERORS BEFORE TAKING ANY EXCEPTIONS. OFFERS WITH EXCEPTIONS MAY BE FOUND

NOT SUSCEPTIBLE FOR AWARD UNDER A.A.C. R2-7-C311 OR RECEIVE LOWER SCORES DURING EVALUATION.

IF NEITHER BOX IS CHECKED UNDER ANY SECTION BELOW, THE OFFEROR’S RESPONSE TO THAT SECTION WILL BE

CONSIDERED “YES” AND STATE WILL INTERPRET THE OFFER AS IF THERE WERE NO EXCEPTIONS TAKEN.

CONFORMANCE TO THE INSTRUCTIONS TO OFFERORS

Check one of the following:

☐ YES – Offeror acknowledges that it has read and understands the Special Instructions to Offerors and Uniform Instructions to Offerors of the Solicitation Documents and attests that its Offer complies with both.

☐ NO – Offeror acknowledges that it has read and understands the Instructions to Offerors in the Solicitation Documents, and attests that its Offer complies with both EXCEPT FOR the exceptions listed in Attachment Supplement – Conformance Statements - Exceptions to Instructions.

CONFORMANCE TO THE SCOPE OF WORK

☐ YES – Offeror acknowledges that it has read and understands the Scope of Work Document and the Pricing Document of the Solicitation Documents and attests that its Offer complies with both.

☐ NO – Offeror acknowledges that it has read and understands the Scope of Work Document and the Pricing Document of the Solicitation Documents and attests that its Offer complies with both EXCEPT FOR the exceptions listed in Attachment Supplement – Conformance Statements - Exceptions to Scope of Work.

CONFORMANCE TO THE CONTRACT TERMS AND CONDITIONS

☐ YES – Offeror acknowledges that it has read and understands the Special Terms and Conditions and the Uniform Terms and Conditions, along with their respective Exhibits and Appendices of the Solicitation Documents and attests that its Offer complies with all.

☐ NO – Offeror acknowledges that it has read and understands the Special Terms and Conditions and the Uniform Terms and Conditions, along with their respective Exhibits and Appendices of the Solicitation Documents and attests that its Offer complies with all EXCEPT FOR the exceptions listed in Attachment Supplement – Conformance Statements - Exceptions to Contract Terms and Conditions.

Stantec Consulting Services Inc

Company name Signature of person authorized to sign

Quality - Procurement Office

Attachment F Supplement 1 – Conformance Statements - Exceptions to Instructions

Article / paragraph or exhibit reference

RFP language (Copy and paste from Solicitation) Alternate language and Rationale

Special Instructions to Offerors

X X Alternate language: X

Rationale: X

Uniform Instructions to Offerors

Attachment F Supplement 2 – Conformance Statements - Exceptions to Scope of Work or exhibit reference

RFP language (Copy and paste from Solicitation) Alternate language and Rationale

Scope of Work

Quality - Procurement Office

Attachment F Supplement 3 – Conformance Statements - Exceptions to

Contract Terms and Conditions or exhibit reference

RFP language (Copy and paste from Solicitation) Alternate language and Rationale

Special Terms and Conditions

3.6.3 and

3.6.4

Right To Audit. The retained books and records are subject to audit by State during that period. Pursuant to A.R.S. § 41-2548(B), Contractor shall retain and shall contractually require each Subcontractor to retain books and records relating to performance under the Contract for the period specified in the statute and those retained books and records are subject to audit by State during that period.

Auditing. Contractor or Subcontractor shall either make all such books and records under subparagraphs

3.6.1 and 3.6.2 available to State at all reasonable times or produce the records at a designated State office on State’s demand, the choice of which being at State’s discretion. For the purpose of this paragraph, “reasonable times” are during normal business hours and in such a manner so as to not unreasonably interfere with normal business activities.

Alternate language: Please add the following to the clause: “Notwithstanding the foregoing, the States’s right to inspect, copy and audit shall not extend to the composition of the Contractor’s rates and fees, percentage mark-ups or multipliers but shall apply only to their application to the applicable units.”

Rationale: This audit provision is too broad.

6.1 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.

Alternate language: please delete this section.

Rationale: This is not applicable to the services we provide

6.2.1 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

Alternate language: 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

Quality - Procurement Office 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.

(including court costs, reasonable 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 to the extent 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.

Rationale: The indemnity clause is too broad.

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.

Alternate language: delete “defend”.

Rationale: there is a duty to defend

6.3 Patent and Copyright Indemnification.

[CONTRACTOR/VENDOR (NOT PUBLIC

AGENCY)]. With respect to Materials or Services provided or proposed by a Contractor Indemnitor for performance under the Contract, Contractor shall

Alternate language: delete “defend”.

Rationale: there is a duty to defend

Quality - Procurement Office indemnify, defend and hold harmless State Indemnitees 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 the Materials and the Services. With respect to the defense and payment of claims under this subparagraph:

8.6 Removal of Personnel. Notwithstanding that

Contractor is in every circumstance responsible for hiring, assigning, directing, managing, training, disciplining, and rewarding its personnel, State may at its discretion, and without the obligation to demonstrate cause, instruct Contractor to remove any of its personnel from State’s facilities or from further assignment under the Contract. In such cases, Contractor shall promptly replace removed personnel with other personnel that have equivalent qualifications, experience, and capabilities.

Alternate language: Please add “reasonable” before “discretion”

Rationale: Stantec gets to determine who we have working on the project

9 Data and Information Handling Alternate language: Please add the following: “The restrictions on the use and disclosure of the confidential information shall not apply to information which (a) was known to the Contractor before receipt of same from the State; or (b) becomes publicly known other than through the Contractor; or (c) is disclosed pursuant to the requirements of a governmental authority or judicial order, but only to the extent required to comply with the said requirements of the government authority or judicial order.”

Rationale: The confidentiality clause is too general

Addendu m A 1.1

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

Alternate language: 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, reasonable 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 to the extent 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

Quality - Procurement Office

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.

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.

Rationale: The indemnity clause is too broad.

Addendu m A 1.5

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).

Alternate language: . Please delete “or be materially changed”

Rationale: The requirement for notice of material change is too broad.

Addendu m A 1.7.3

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.

Alternate language: Please delete the last sentence.

Rationale: our insurance policies are typically seen as proprietary and confidential.

Quality - Procurement Office

Uniform Terms and Conditions

3.9.3 “Government Purpose Rights” do not include any right to use, modify, reproduce, perform, release, display, create derivative works from or disclose that work product for any commercial purpose, or to authorize others to do so.

Alternate language: Please add to the end of 3.9.3, the following: “The State agrees, to the fullest extent permitted by law, to indemnify and hold the Contractor harmless from any claim, liability or cost (including reasonable attorney’s fees and defense costs) arising or allegedly arising out of any reuse or modification of the Work Product by the State or any person or entity that obtains the Work Product from or through the State.”

Rationale: It is preferred to have an indemnity for its reuse and modification

4.5&4.6 4.5 Availability of Funds for the Next State Fiscal Year. Funds may not presently be available for performance under this Contract beyond the current State Fiscal Year. No legal liability on the part of the State for any payment may arise under this Contract beyond the current State Fiscal Year until funds are made available for performance of this Contract.

4.6. Availability of Funds for the Current State Fiscal

Year. Should the State Legislature enter back into session and reduce the appropriations or for any reason and these Materials or Services are not funded, the State may take any of the following actions:

Alternate language: Please add the following: “State shall provide notice to Contractor in the event the State fails to appropriate funds, and in such event Contractor's obligations under the Agreement shall immediately cease, except for completion of any services paid in advance if any.”

Rationale: It would ensure appropriations for a contract signed in the present budget cycle.

6.1 Risk of Loss. The Contractor shall bear all loss of

conforming Materials covered under this Contract until received by authorized personnel at the location designated in the purchase order or Contract. Mere receipt does not constitute final acceptance. The risk of loss for nonconforming Materials shall remain with the Contractor regardless of receipt.

Alternate language: Please delete.

Rationale: This is not applicable to the services we provide.

6.2 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

Alternate language: 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, reasonable 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 to the extent caused, or alleged to be caused, in whole or in part, by the negligent or willful acts or omissions of

Quality - Procurement Office 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.

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.

Rationale: There is a duty to defend

7.1 Liens. The Contractor warrants that the Materials

supplied under this Contract are free of liens and shall remain free of liens.

Alternate language: Please add the following: “This shall not apply to liens placed by Contractor as a result of State defaulting on payment obligations to Contractor.”

Rationale: Stantec should not agree to waive our lien rights in the event we do not get paid.

7.2 &7.3 Quality. Unless otherwise modified elsewhere in the Special Terms and Conditions, the Contractor warrants that, for one (1) year after acceptance by the State of the Materials, they shall be: 7.2.1. Of a quality to pass without objection in the trade under the Contract description;

Conformity to Requirements.

Contractor warrants that, unless expressly provided otherwise elsewhere in the Contract, the Materials and Services will for one (1) year after acceptance and in each instance:

Alternate language: Delete 7.2 and replace 7.3 with the following: “The Contractor warrants that the services will be performed with the reasonable skill and diligence required by customarily accepted professional practices and procedures normally provided in the performance of the services at the time when and the location in which the services were performed. This standard of care is the sole and exclusive standard of care that will be applied to measure the Contractor’s performance.”

Rationale: Stantec can only warrant/guarantee our work to the extent that the warranty/guarantee is consistent with the legal standard of care.

8.5 Right of Offset. The State shall be entitled to offset

against any sums due the Contractor, any expenses or

Alternate language: Please delete.

Quality - Procurement Office costs incurred by the State, or damages assessed by the State concerning the Contractor’s non-conforming performance or failure to perform the Contract, including expenses, costs and damages described in the Uniform Terms and Conditions.

Rationale: Stantec’s fees cannot be used as insurance money.

9.4 &9.5 Termination for Convenience. The State reserves the right to terminate the Contract, in whole or in part at any time when in the best interest of the State, without penalty or recourse. Upon receipt of the written notice, the Contractor shall stop all work, as directed in the notice, notify all Subcontractors of the effective date of the termination and minimize all further costs to the State. In the event of termination under this paragraph, all documents, Data and reports prepared by the Contractor under the Contract shall become the property of and be delivered to the State upon demand.

The Contractor shall be entitled to receive just and equitable compensation for work in progress, work completed, and Materials or Services accepted before the effective date of the termination. The cost principles and procedures provided in A.R.S. § 41- 2543 and A.A.C. Title 2, Chapter 7, Article 7, shall apply.

9.5. Termination for Default.

Alternate language: In 9.4, please add “upon providing thirty (30) days’ prior written notice” after “terminate the Contract”. Add to Clause 9.5, the following: “The Contractor may terminate this Agreement upon seven

(7) days’ notice in writing in the event the State has committed material breach of this Agreement. Non-payment of the Contractor’s invoices will be considered a material breach of this Agreement.”

Rationale: Stantec should be able to terminate the Agreement based on a breach of agreement. There is no reasonable notice period provided for when the client can terminate Stantec’s services.

11.1 Arbitration

The parties to this Contract agree to resolve all disputes arising out of or relating to this Contract through arbitration, after exhausting applicable administrative review, to the extent required by A.R.S.

§ 12-1518, except as may be required by other applicable statutes (A.R.S. Title 41).

Alternate language: Please replace with the following:

“If requested in writing by either the State or the Contractor, the State and the Contractor shall attempt to resolve any dispute between them arising out of or in connection with this Agreement by first entering into structured non-binding negotiations with the assistance of a mediator on a without prejudice basis.

The mediator shall be appointed by agreement of the parties. If a dispute cannot be settled within a period of thirty (30) calendar days with the mediator, if mutually agreed, the dispute shall be referred to arbitration in accordance with A.R.S. § 12-1518, except as may be required by other applicable statutes (A.R.S. Title 41).”

Rationale: wording needs to be added that arbitration is an option upon written agreement by both of the parties.

N/A Alternate language: Please add the following: “The total amount of all claims the State may have against the Contractor under this Agreement or arising from the performance or non-performance of the Services under any theory of law, including but not limited to

Quality - Procurement Office claims for negligence, negligent misrepresentation and breach of contract, shall be strictly limited to the lesser of the fees or $500,000. As the State’s sole and exclusive remedy under this Agreement any claim, demand or suit shall be directed and/or asserted only against the Contractor and not against any of the Contractor’s employees, officers or directors. Neither the State nor the Contractor shall be liable to the other or shall make any claim for any incidental, indirect or consequential damages arising out of or connected to this Agreement or the performance of the services on this Project. This mutual waiver includes, but is not limited to, damages related to loss of use, loss of profits, loss of income, unrealized energy savings, diminution of property value or loss of reimbursement or credits from governmental or other agencies.”

Rationale: There is no Limit of Liability clause or exclusion of Consequential Damages clause.