230033-CONTRACT-ATSER FOR CONSTRUCTION AND MATERIALS PROJECT MANAGEMENT SOFTWARE-SIGNED.PDF

CONTRACT CONSTRUCTION AND MATERIALS PROJECT
MANAGEMENT SOFTWARE 230033-RFP

This contract is entered into this 24" day of May 2023 by and between Maricopa County (“County”), a
political subdivision of the State of Arizona, and ATSER LP, an Texas corporation (“Contractor”) for the
purchase of Construction and Materials Project Management Software.

1.0 CONTRACT TERM

1.1 This contract is for a term of five years, beginning on the 1* day of June 2023 and ending
the 31% of May 2028.

2.0 OPTION TO RENEW

The County may, at its option and with the concurrence of the Contractor, renew the term of this
contract up to a maximum of ten additional year(s), (or at the County’s sole discretion, extend the
contract on a month-to-month basis for a maximum of six months after expiration). The Contractor
shall be notified in writing by the Office of Procurement Services of the County's intention to renew
the contract term at least 60 calendar days prior to the expiration of the original contract term.

3.0 CONTRACT COMPLETION

In preparation for contract completion, the Contractor shall make all reasonable efforts for an
orderly transition of its duties and responsibilities to another provider and/or to the County. This
may include, but is not limited to, preparation of a transition plan and cooperation with the County
or other providers in the transition. The transition includes the transfer of all records and other data
in the possession, custody, or control of the Contractor that are required to be provided to the
County either by the terms of this agreement or as a matter of law. The provisions of this clause
shall survive the expiration or termination of this agreement.

4.0 PRICE ADJUSTMENTS

Any requests for reasonable price adjustments must be submitted 60 calendar days prior to
contract expiration. Requests for adjustment in cost of labor and/or materials must be supported
by appropriate documentation. The reasonableness of the request will be determined by comparing
the request with the Consumer Price Index or by performing a market survey. If County agrees to
the adjusted price terms, County shall issue written approval of the change and provide an updated
version of the contract. The new change shall not be in effect until the date stipulated on the
updated version of the contract.

5.0 PAYMENTS

5.1 As consideration for performance of the duties described herein, County shall pay
Contractor the sum(s) stated in Exhibit D — Pricing Sheet.

6:2 Payment shall be made upon the County's receipt of a properly completed invoice.

5.3

5.4

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INVOICES

5.3.1

5.3.2

5.3.3

5.3.4

5.3.5

5.3.6

The Contractor shall submit one legible copy of their detailed invoice before
payment(s) will be made. Incomplete invoices will not be processed. At a minimum,
the invoice must provide the following information:

. Company name, address, and contact information
: County bill-to name and contact information
Contract serial number

County purchase order number

Project name and/or number

Invoice number and date

Payment terms

Quantity

Contract item number(s)

Arrival and completion time

Description of purchase (product or services)
Pricing per unit of purchase

. Extended price

. Total amount due

oer ee ee ee ee

Labor, services, and maintenance must be billed as a separate line item.

Problems regarding billing or invoicing shall be directed to the department as listed
on the purchase order.

Payment shall only be made to the Contractor by Accounts Payable through the
Maricopa County Vendor Express Payment Program. This is an electronic funds
transfer (EFT) process. After contract award, the Contractor shall complete the
Vendor Registration Form accessible from the County Department of Finance
Vendor Registration Web Site https://www.maricopa.gov/5169/Vendor-
Information.

Discounts offered in the contract shall be calculated based on the date a properly
completed invoice is received by the County.

EFT payments to the routing and account numbers designated by the Contractor
shall include the details on the specific invoices that the payment covers. The
Contractor is required to discuss remittance delivery capabilities with their
designated financial institution for access to those details.

APPLICABLE TAXES

5.4.1

5.4.2

It is the responsibility of the Contractor to determine any and all applicable taxes
and include those taxes in their proposal. The legal liability to remit the tax is on
the entity conducting business in Arizona. Tax is not a determining factor in
contract award.

The County will look at the price or offer submitted and will not deduct, add, or alter
pricing based on speculation or application of any taxes, nor will the County
provide Contractor any advice or guidance regarding taxes. If you have questions
regarding your tax liability, seek advice from a tax professional prior to submitting
your bid. You may also find information at httos://www.azdor.gov/Business.aspx.
Once your bid is submitted, the offer is valid for the time specified in this solicitation,
regardless of mistake or omission of tax liability. If the County finds overpayment
of a project due to tax consideration that was not due, the Contractor will be liable
to the County for that amount, and by contracting with the County agrees to remit

6.0

7.0

8.0

9.0

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any overpayments back to the County for miscalculations on taxes included in a
bid price.

5.4.3 Tax Indemnification: Contractor and all subcontractors shall pay all Federal, State,
and local taxes applicable to their operation and any persons employed by the
Contractor. Contractor shall, and require all subcontractors to, hold Maricopa
County 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 workers’
compensation. Contractor may be required to establish, to the satisfaction of
County, that any and all fees and taxes due to the City or the State of Arizona for
any license or transaction privilege taxes, use taxes, or similar excise taxes are
currently paid (except for matters under legal protest).

AVAILABILITY OF FUNDS

6.1 The provisions of this contract relating to payment for services shall become effective when
funds assigned for the purpose of compensating the Contractor as herein provided are
actually available to County for disbursement. The County shall be the sole judge and
authority in determining the availability of funds under this contract. County shall keep the
Contractor fully informed as to the availability of funds.

6.2 If any action is taken by, any State agency, Federal department, or any other agency or
instrumentality to suspend, decrease, or terminate its fiscal obligations under, or in
connection with, this contract, County may amend, suspend, decrease, or terminate its
obligations under, or in connection with, this contract. In the event of termination, County
shall be liable for payment only for services rendered prior to the effective date of the
termination, provided that such services are performed in accordance with the provisions
of this contract. County shall give written notice of the effective date of any suspension,
amendment, or termination under this section, at least 10 days in advance.

STRATEGIC ALLIANCE for VOLUME EXPENDITURES (SAVE)

The County is a member of the SAVE cooperative purchasing group. SAVE includes the State of
Arizona, many Phoenix metropolitan area municipalities, and many K-12 unified school districts.
Under the SAVE Cooperative Purchasing Agreement, and with the concurrence of the successful
respondent under this solicitation, a member of SAVE may access a contract resulting from a
solicitation issued by the County. If contractor does not want to grant such access to a member of
SAVE, state so in contractor's bid. In the absence of a statement to the contrary, the County will
assume that contractor does wish to grant access to any contract that may result from this bid. The
County assumes no responsibility for any purchases by using entities.

INTERGOVERNMENTAL COOPERATIVE PURCHASING AGREEMENTS (ICPAs)

County currently holds ICPAs with numerous governmental entities. These agreements allow those
entities, with the approval of the Contractor, to purchase their requirements under the terms and
conditions of the County contract. It is the responsibility of the non-County government entity to
perform its own due diligence on the acceptability of the contract under its applicable procurement
rules, processes, and procedures. Certain governmental agencies may not require an ICPA and
may utilize this contract if it meets their individual requirements. Other governmental agencies may
enter into a separate Statement of Work with the Contractor to meet their own requirements. The
County is not a party to any uses of this contract by other governmental entities.

DUTIES

9.1 The Contractor shall perform all duties stated in Exhibit B- Scope of Work, or as otherwise
directed in writing by the procurement officer.

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9.2 During the contract term, County may provide Contractor's personnel with adequate
workspace for consultants and such other related facilities as may be required by
Contractor to carry out its contractual obligations.

10.0 TERMS AND CONDITIONS

10.1 INDEMNIFICATION

10.1.1

10.1.2

10.1.3

10.1.4

To the fullest extent permitted by law, and to the extent that claims, damages,
losses, or expenses are not covered and paid by insurance purchased by the
contractor, the contractor shall defend, indemnify, and hold harmless the County
(as Owner), its agents, representatives, officers, directors, officials, and employees
from and against all claims, damages, losses, and expenses (including, but not
limited to attorneys' fees, court costs, expert witness fees, and the costs and
attorneys’ fees for appellate proceedings) arising out of, or alleged to have resulted
from, the negligent acts, errors, omissions, or mistakes relating to the performance
of this contract.

Contractor's duty to defend, indemnify, and hold harmless the County, its agents,
representatives, officers, directors, officials, and employees shall arise in
connection with any claim, damage, loss, or expense that is attributable to bodily
injury, sickness, disease, death, or injury to, impairment of, or destruction of
tangible property, including loss of use resulting therefrom, caused by negligent
acts, errors, omissions, or mistakes in the performance of this contract, but only to
the extent caused by the negligent acts or omissions of the contractor, a
subcontractor, anyone directly or indirectly employed by them, or anyone for
whose acts they may be liable, regardless of whether or not such claim, damage,
loss, or expense is caused in part by a party indemnified hereunder.

The amount and type of insurance coverage requirements set forth herein will in
no way be construed as limiting the scope of the indemnity in this section.

The scope of this indemnification does not extend to the sole negligence of County.

40.2 INFRINGEMENT DEFENSE AND INDEMNIFICATION

10.2.1

Definitions

For purposes of this section:

140.2.1.1 “Claim” means any cause of action in a third-party action, suit, or
proceeding against County alleging that Contractor software, or its
upgrades, modifications, or revisions, as of its delivery date under this
agreement, infringes a valid U.S. patent, copyright, or trademark.

10.2.1.2 “Participate and Share in the Costs” means Contractor will assist the
County in the defense of the Claim, to the extent agreed to by the
parties, except that Contractor shall be solely responsible for any and all
costs adjudged in a successful Claim against the County.

10.2.1.3 “Third-Party Products” means any products made by a party other than
Contractor, and may include, without limitation, products ordered by
County from third parties. However, components of Contractor branded
products are not Third-Party Products if they are both:

140.2.1.3.1. embedded in Third-Party Products (i.e., not recognizable as
standalone items); and

10.2.2

10.2.3

10.2.4

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10.2.1.3.2 not identified as separate items on Contractor's price list,
quotes, order specifications forms, or documentation.

Defense and Indemnity

Contractor shall defend, and Participate and Share in the Cost, in the full defense
of the County against any Claim, and will indemnify and hold harmless the County,
as provided for in this section, for any judgments, settlements, and court awarded
attorney's fees resulting from a Claim where the claimant is adjudged the
successful party in the Claim. Contractor's obligations under this section are
conditioned on the following:

10.2.2.1 County promptly notifies Contractor of the Claim, in writing, upon being
made aware of the Claim;

10.2.2.2 County gives Contractor lead authority control of the defense and (if
applicable) settlement of the Claim, provided that County's legal counsel
may participate in such defense and settlement, at County’s expense;
and

10.2.2.3 County provides all information and assistance reasonably requested by
Contractor to handle the defense or settlement of the Claim.

Remedial Measures

If software becomes, or Contractor reasonably believes use of software may

become, the subject of a Claim, Contractor may, at its own expense and option:

10.2.3.1 procure for County the right to continue use of the product;

10.2.3.2 replace or modify the software; or

10.2.3.3 to the extent that neither 10.2.3.1 nor 10.2.3.2 are deemed commercially
practicable, refund to County a pro-rated portion of the applicable fees
for software based on a linear depreciation monthly over a 10-year
useful life, in which case County will cease all use of software and return
it to Contractor.

Exceptions

Contractor will have no defense or indemnity obligation for any Claim based on:

10.2.4.1 modifications by someone other than Contractor;

10.2.4.2 sofiware has been modified by Contractor in accordance with County-
provided specifications or instructions;

10.2.4.3 use or combination by the County of software with Third-Party Products,
open source, or freeware technology;

10.2.4.4 Third-Party Products, open source, or freeware technology;

10.2.4.5 a product that is used or located by County in a country other than the
country in which or for which it was supplied by Contractor,

10.2.4.6 possession or use of a product after Contractor has informed County of
modifications or changes required to avoid such Claim and offered to
implement those modifications or changes, if such Claim would have

10.2.5

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been avoided by implementation of Contractor's suggestions and to the
extent County did not provide Contractor with a reasonable opportunity
to implement Contractor's suggestions; or

10.2.4.7 the amount of revenue or profits earned, or other value obtained by the
use of products, or the amount of use of the products.

The foregoing states Contractor’s entire liability, and County’s sole and exclusive
remedy, except as provided by law or equity, with respect to any infringement or
misappropriation of any intellectual property rights of another party.

10.3 SOURCE CODE ESCROW REQUIREMENT

10.3.1

10.3.2

10.3.3

Contractor shall provide all proprietary technology and materials covered under
this agreement that Maricopa County has purchased from Contractor for
safekeeping with a mutually acceptable software escrow service provider (escrow
agent) within 30 days of award, to include, but is not limited to, all source code,
any updates or fixes, and related materials and documents for commercial off-the-
shelf software (COTS), etc. (“deposit material”). The deposit material deposited
with the escrow agent shall be a snapshot of all source code and related material
maintained by Contractor. In this way, as beneficiary of the escrow agreement
between Contractor and escrow agent, Maricopa County will have access to all
source code of the products that they license for all versions of the software.
Furthermore, the escrowed code shall include all code specifically developed for
Maricopa County including, but not limited to, interfaces, Extraction-
Transformation-Loading (ETL) routines for data conversion, and all custom code.
Upon taking possession of the source code, Maricopa County will have the right to
use the source for products that they license in the versions currently installed on
the system or any subsequent versions archived with the escrow agent. Contractor
will make a deposit of the deposit material with the escrow agent upon any version
release or once every six months, whichever occurs first.

Maricopa County hereby agrees to pay the yearly standard fee for a beneficiary of
the source code.

Maricopa County shall have access to the source code in the event of any of the
following circumstances:

140.3.3.1_ the sale, assignment, or transfer to any third party of any of Contractor's
rights in the licensed product (or any portion thereof) if such sale,
assignment, or transfer would prevent Contractor from fully performing
any of its obligations under any agreement with Maricopa County;

40.3.3.2 Contractor becomes insolvent or commits any affirmative act of
insolvency, or generally fails to pay, or admits in writing its inability to
pay, debts as they become due, makes a general assignment for the
benefit of creditors, files a voluntary petition of bankruptcy, suffers or
permits the appointment of a receiver for its business or assets,
becomes subject to any proceeding under, or case in, any bankruptcy
or insolvency law, or Contractor takes any action to authorize, or in the
furtherance of, any of the following:

10.3.3.2.1 Contractor discontinues providing full support and
maintenance services for the licensed product in
accordance with its obligations pursuant to any agreement
with Maricopa County;

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10.3.3.2.2 Contractor has ceased to do business or improperly refuses
to provide any services pursuant to any agreement with
Maricopa County;

40.2.3.2.3 Contractor has breached (and if subject to a cure period,
has not cured such breach within such period) any material
term or condition of any agreement with Maricopa County;

40.3.3.2.4 any change of control of Contractor or Contractor's parent
company, where such party is acquired, directly or
indirectly, in a single transaction or series of related
transactions, or all or substantially all of the assets of such
party are acquired by any entity, or such party is merged
with or into another entity to form a new entity; or

140.3.3.2.5 any other circumstance in which Maricopa County is entitled
to access or use the applicable deposit materials (including,
but not limited to, the source code) under the express terms
of any agreement between Contractor and Maricopa
County.

10.3.4 Upon Maricopa County taking possession of the source code, Maricopa County
hereby agrees as follows:

10.3.4.1_ Maricopa County accepts full and total responsibility for the safekeeping
of the source code. Maricopa County agrees that such source code shall
be subject to the restrictions of transfer, sale, and reproduction placed
on the software itself as stated in the software license signed by all
parties.

10.3.4.2 Maricopa County agrees to only use source code related to applications
for which they own a license.

10.3.4.3 Maricopa County agrees, if so ordered by a court of competent
jurisdiction, to compensate Contractor for any and all damages
Contractor suffers, to include reasonable attorney’s fees, resulting
directly or indirectly from, but not limited to, the mishandling, misuse, or
the't of the source code, regardless of intent, or the absence thereof, by
Maricopa County, its employees, agents, and third-party Contractors.

10.3.4.4 No license under any trademark, patent, copyright, or any other
intellectual property right, is either granted or implied by the disclosure
of the source code to Maricopa County. The Contractor's disclosure of
the source code to Maricopa County shall not constitute any
representation, warranty, assurance, guarantee, or inducement by the
Contractor to Maricopa County of any kind, and, in particular, with
respect to the non-infringement of trademarks, patents, copyrights, or
any other intellectual property rights, or other rights of third persons or
of Contractor.

40.3.5 Contractor will not be responsible for maintaining the source code. Furthermore,
Contractor will not be liable for any consequences related to the use of source
code modified by Maricopa County.

10.4 INSURANCE

10.4.1 Contractor, at Contractor's own expense, shall purchase and maintain, at a
minimum, the herein stipulated insurance from a company or companies duly
licensed by the State of Arizona and possessing an AM Best, Inc. category rating

10.4.2

10.4.3

10.4.4

10.4.5

10.4.6

10.4.7

10.4.8

10.4.9

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of B++. In lieu of State of Arizona licensing, the stipulated insurance may be
purchased from a company or companies, which are authorized to do business in
the State of Arizona, provided that said insurance companies meet the approval of
County. The form of any insurance policies and forms must be acceptable to
County.

All insurance required herein shall be maintained in full force and effect until all
work or service required to be performed under the terms of the contract is
satisfactorily completed and formally accepted. Failure to do so may, at the sole
discretion of County, constitute a material breach of this contract.

In the event that the insurance required is written on a claims-made basis,
Contractor werrants 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 years
beginning at the time work under this contract is completed.

Contractor's insurance shall be primary insurance as respects County, and any
insurance or self-insurance maintained by County shall not contribute to it.

Any failure to comply with the claim reporting provisions of the insurance policies
or any breach of an insurance policy warranty shall not affect the County’s right to
coverage afforded under the insurance policies.

The insurance policies may provide coverage that contains deductibles or self-
insured retentions. Such deductible and/or self-insured retentions shall not be
applicable with respect to the coverage provided to County under such policies.
Contractor shall be solely responsible for the deductible and/or self-insured
retention and County, at its option, may require Contractor to secure payment of
such deductibles or self-insured retentions by a surety bond or an irrevocable and
unconditional letter of credit.

The insurance policies required by this contract, except Workers’ Compensation
and Errors and Omissions, shall name County, its agents, representatives, officers,
directors, officials, and employees as additional insureds.

The policies required hereunder, except Workers’ Compensation and Errors and
Omissions, shall contain a waiver of transfer of rights of recovery (subrogation)
against County, its agents, representatives, officers, directors, officials, and
employees for any claims arising out of Contractor's work or service.

If available, the insurance policies required by this contract may be combined with
Commercial Umbrella Insurance policies to meet the minimum limit requirements.
If a Commercial Umbrella insurance policy is utilized to meet insurance
requirements, the Certificate of Insurance shall indicate which lines the
Commercial Umbrella Insurance covers.

10.4.9.1 Commercial General Liability

Commercial General Liability (CGL) insurance and, if necessary,
Commercial Umbrella insurance with a limit of not less than $1,000,000
for each occurrence, $2,000,000 Products/Completed Operations
Aggregate, and $2,000,000 General Aggregate Limit. The policy shall
include coverage for premises liability, bodily injury, broad form property
damage, personal injury, products and completed operations and
blanket contractual coverage, and shall not contain any provisions which
would serve to limit third party action over claims. There shall be no
endorsement or modifications of the CGL limiting the scope of coverage

10.4.9.2

10.4.9.3

10.4.9.4

10.4.9.5

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for liability arising from explosion, collapse, or underground property
damage.

Automobile Liability

Commercial/Business Automobile Liability insurance with a combined
single limit for bodily injury and property damage of not less than
$2,000,000 each occurrence with respect to any of the Contractor's
owned, hired, and non-owned vehicles assigned to or used in
performance of the Contractor's work or services or use or maintenance
of the premises under this contract.

Workers’ Compensation

10.4.9.3.1 Workers’ compensation insurance to cover obligations
imposed by Federal and State statutes having jurisdiction of
Contractor's employees engaged in the performance of the
work or services under this contract; and Employer's
Liability insurance of not less than $1,000,000 for each
accident, $1,000,000 disease for each employee, and
$1,000,000 disease policy limit.

10.4.9.3.2 Contractor, its subcontractors, and sub-subcontractors
waive all rights against this contract and its agents, officers,
directors, and employees for recovery of damages to the
extent these damages are covered by the workers’
compensation and Employer's Liability or Commercial
Umbrella Liability insurance obtained by Contractor, its
subcontractors, and its sub-subcontractors pursuant to this
contract.

Errors and Omissions/Professional Liability Insurance

Technology Errors & Omission insurance: Such insurance shall cover
any and all errors, omissions, or negligent acts in the delivery of
products, services, and/or licensed programs under this contract.

e Each claim $5,000,000

In the event that the Technology Errors & Omission 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 years,
beginning at the time work under this contract is completed.

Cyber, Network Security, and Privacy Liability

Cyber, Network Security and Privacy Liability Insurance with a limit of
not less than $5,000,000 per occurrence. The policy shall include, but
not be limited to; coverage for all directors, officers, agents and
employees of the Contractor, losses with respect to network risks (such
as data breaches, unauthorized access or use, and ID theft of data),
invasion of privacy (regardless of the type of media involved in the loss
of private information), crisis management, identity theft response costs,
breach notification costs, credit remediation, and credit monitoring,
defense, and claims expenses, regulatory defense costs plus fines and
penalties, cyber extortion, electronic data restoration expenses (data
asset protection), network business interruption, computer fraud

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coverage, funds transfer loss, third-party fidelity, theft, no requirement
for arrest and conviction, and loss outside the premises of the named
insured.

10.4.10 Certificates of Insurance

10.4.10.1 Prior to contract award, Contractor shall furnish the County with valid
and complete Certificates of Insurance, or formal endorsements as
required by the contract in the form provided by the County, issued by
Contractor's insurer(s), as evidence that policies providing the required
coverage, conditions and limits required by this contract are in full force
anc effect. Such certificates shall identify this contract number and title.

10.4.10.2 In the event any insurance policy(ies) required by this contract is (are)
written on a claims-made basis, coverage shall extend for two years past
completion and acceptance of Contractor’s work or services and as
evidenced by annual certificates of insurance.

10.4.10.3 Ifa policy does expire during the life of the Contract, a renewal certificate
must be sent to County 15 calendar days prior to the expiration date.

10.4.11 Cancellation and Expiration Notice

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 30 days
prior written notice to Maricopa County. Contractor must provide to Maricopa
County, within two business days of receipt, 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 Maricopa County
Office of Procurement Services and shall be mailed, or hand delivered to 310 W.
Jefferson St. Suite 700, Phoenix, AZ 85003, or emailed to the procurement officer
noted in the solicitation.

10.5 FORCE MAJEURE

10.5.1

10.5.2

10.5.3

Neither party shall be liable for failure of performance, nor incur any liability to the
other party on account of any loss or damage resulting from any delay or failure to
perform all or any part of this contract, if such delay or failure is caused by events,
occurrences, or causes beyond the reasonable control and without negligence of
the parties. Such events, occurrences, or causes include, but are not limited to,
acts of God/nature (including fire, flood, earthquake, storm, hurricane, or other
natural disaster), war, invasion, act of foreign enemies, hostilities (whether war is
declared or not), civil war, riots, rebellion, revolution, insurrection, military or
usurped power or confiscation, terrorist activities, nationalization, government
sanction, lockout, blockage, embargo, labor dispute, strike, and interruption or
failure of electricity or telecommunication service, and pandemic.

Each party, as applicable, shall give the other party notice of its inability to perform
and particulars in reasonable detail of the cause of the inability. Each party must
use best efforts to remedy the situation and remove, as soon as practicable, the
cause of its inability to perform or comply.

The party asserting Force Majeure as a cause for non-performance shall have the
burden of proving that reasonable steps were taken to minimize delay or damages
caused by foreseeable events, that all non-excused obligations were substantially
fulfilled, and that the other party was timely notified of the likelihood or actual
occurrence which would justify such an assertion, so that other prudent
precautions could be contemplated.

10.6

10.7

10.8

10.9

10.10

10.11

10.12

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ORDERING AUTHORITY

Any request for purchase shall be accompanied by a valid purchase order issued by a
County department or directed by a Certified Agency Procurement Aid (CAPA) with a
purchase card for payment.

PROCUREMENT CARD ORDERING CAPABILITY

County may opt to use a procurement card (Visa or Master Card) to make payment for
orders under this contract.

NO MINIMUM OR MAXIMUM PURCHASE OBLIGATION

This contract does not guarantee any minimum or maximum purchases will be made.
Orders will only be placed under this contract when the County identifies a need and proper
authorization and documentation have been approved.

PURCHASE ORDERS

10.9.1 County reserves the right to cancel purchase orders within a reasonable period of
time after issuance. Should a purchase order be canceled, the County agrees to
reimburse the Contractor for actual and documentable costs incurred by the
Contractor in response to the purchase order. The County will not reimburse the
Contractor for any costs incurred after receipt of County notice of cancellation, or
for lost profits, or for shipment of product prior to issuance of purchase order.

10.9.2 Contractor agrees to accept verbal notification of cancellation of purchase orders
from the County procurement officer with written notification to follow. Contractor
specifically acknowledges to be bound by this cancellation policy.

BACKGROUND CHECK

Respondents may be required to pass multiple background checks (e.g., Sheriffs Office,
County Attorney's Office, Courts, as well as Maricopa County general government) to
determine if the respondent is acceptable to do business with the County. This applies to,
but is not limited to, the company, subcontractors, and employees, and the failure to pass
these checks shall deem the respondent non-responsible.

SUSPENSION OF WORK

The procurement officer may order the Contractor, in writing, to suspend, delay, or interrupt
all or any part of the work of this contract for the period of time that the procurement officer
determines appropriate for the convenience of the County. No adjustment shall be made
under this clause for any suspension, delay, or interruption to the extent that performance
would have been so suspended, delayed, or interrupted by any other cause, including the
fault or negligence of the Contractor. No request for adjustment under this clause shall be
granted unless the claim, in an amount stated, is asserted in writing as soon as practicable
after the termination of the suspension, delay, or interruption, but not later than the date of
final payment under the contract.

STOP WORK ORDER

140.12.1 The procurement officer may, at any time, by written order to the Contractor,
require the Contractor to stop all, or any part, of the work called for by this contract
for a period of 90 calendar days after the order is delivered to the Contractor, and
for any further period to which the parties may agree. The order shall be specifically
identified as a stop work order issued under this clause. Upon receipt of the order,
the Contractor shall immediately comply with its terms and take all reasonable

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steps to minimize the incurrence of costs allocable to the work covered by the order
during the period of work stoppage. Within a period of 90 calendar days after a
stop work order is delivered to the Contractor, or within any extension of that period
to which the parties shall have agreed, the procurement officer shall either:

10.12.1.1 cancel the stop work order; or

10.12.1.2 terminate the work covered by the order as provided in the Termination
for Default or the Termination for Convenience clause of this contract.

10.12.1.3 The procurement officer may make an equitable adjustment in the
delivery schedule and/or contract price, and the contract shall be
modified, in writing, accordingly, if the Contractor demonstrates that the
stop work order resulted in an increase in costs to the Contractor
TERMINATION FOR CONVENIENCE

Maricopa County may terminate the resultant contract for convenience by providing 60
calendar days advance notice to the Contractor.

TERMINATION FOR DEFAULT

10.14.1 The County may, by written Notice of Default to the Contractor, terminate this
contract in whole or in part if the Contractor fails to:

40.14.1.1 deliver the supplies or to perform the services within the time specified
in this contract or any extension;

10.14.1.2 make progress, so as to endanger performance of this contract; or
10.14.1.3 perform any of the other provisions of this contract.

10.14.2 The County’s right to terminate this contract under these subparagraphs may be
exercised if the Contractor does not cure such failure within 10 business days (or
more if authorized in writing by the County) after receipt of a Notice to Cure from
the procurement officer specifying the failure.

PERFORMANCE

It shall be the Contractor’s responsibility to meet the proposed performance requirements.

Maricopa County reserves the right to obtain services on the open market in the event the

Contractor fails to perform, and any price differential will be charged against the Contractor.

CONTRACTOR EMPLOYEE MANAGEMENT

140.16.1 Contractor shall endeavor to maintain the personnel proposed in their proposal
throughout the performance of this contract.

10.16.2 If Contractor personnel’s employment status changes, Contractor shall provide
County a list of proposed replacements with equivalent or greater experience.

40.16.3 Under no circumstances shall the implementation schedule to be impacted by a
personnel change on the part of the Contractor.

10.16.4 Contractor shall not reassign any key personnel identified in their proposal without
the express consent of the County.

10.16.5 County reserves the right to immediately remove from its premises any Contractor
personnel it determines to be a risk to County operations.

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10.16.6 County reserves the right to request the replacement of any Contractor personnel
at any time, for any reason.

TRAINING

140.17.1 The contractor shall provide live in-classroom and/or online training that can be
accessed for County staff members including but not limited to the following:

10.17.2 Administrator Training/As-built review

10.17.3 Configuration training where applicable for County resources will be performed
prior to closure.

10.17.4 End User Hand-On Training
10.17.5 Post Deployment Training — train the trainer

40.17.6 Contractor shall provide online, in-application help and/or training materials for
users to access while working within the system. Material shall be printable.

10.17.7 Contractor shall provide to the County options that include training materials which
address County specific system configuration.

10.17.8 The contractor shall provide training services to completely train County personnel
in the use and care of the equipment. All training shall take place on-site unless
otherwise negotiated with County.

WARRANTY OF SERVICES

40.18.1 The Contractor warrants that all services provided hereunder will conform to the
requirements of the contract, including all descriptions, specifications, and
attachments made a part of this contract. County's acceptance of services or
goods provided by the Contractor shall not relieve the Contractor from its
obligations under this warranty.

140.18.2 In addition to its other remedies, County may, at the Contractor's expense, require
prompt correction of any services failing to meet the Contractor's warranty herein.
Services corrected by the Contractor shall be subject to all the provisions of this
contract in the manner and to the same extent as services originally furnished
hereunder.

INSPECTION OF SERVICES

40.19.41 The Contractor shall provide and maintain an inspection system acceptable to
County covering the services under this contract. Complete records of all
inspection work performed by the Contractor shall be maintained and made
available to County during contract performance and for as long afterwards as the
contract requires.

40.19.2 County has the right to inspect and test all services called for by the contract, to
the extent practicable at all times and places during the term of the contract.
County shall perform inspections and tests in a manner that will not unduly delay
the work.

10.19.3 If any of the services do not conform to contract requirements, County may require
the Contractor to perform the services again in conformity with contract
requirements, at no cost to the County. When the defects in services cannot be
corrected by re-performance, County may:

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10.19.3.1 require the Contractor to take necessary action to ensure that future
performance conforms to contract requirements; and

40.19.3.2 reduce the contract price to reflect the reduced value of the services
performed.

10.19.4 If the Contractor fails to promptly perform the services again or to take the
necessary action to ensure future performance in conformity with contract
requirements, County may:

10.19.4.1 by contract or otherwise, perform the services and charge to the
Contractor, through direct billing or through payment reduction, any cost
incurred by County that is directly related to the performance of such
service; or

10.19.4.2 terminate the contract for default.
USAGE REPORT

The Contractor shall furnish the County a usage report, upon request, delineating the
acquisition activity governed by the contract. The format of the report shall be approved by
the County and shall disclose the quantity and dollar value of each contract item by
individual unit of measure.

STATUTORY RIGHT OF CANCELLATION FOR CONFLICT OF INTEREST

Notice is given that, pursuant to A.R.S. § 38-511, the County may cancel any contract
without penalty or further obligation within three years after execution of the contract, if any
person significantly involved in initiating, negotiating, securing, drafting, or creating the
contract on behalf of the County is at any time, while the contract or any extension of the
contract is in effect, an employee or agent of any other party to the contract in any capacity
or consultant to any other party of the contract with respect to the subject matter of the
contract. Additionally, pursuant to A.R.S. § 38-511, the County may recoup any fee or
commission paid or due to any person significantly involved in initiating, negotiating,
securing, drafting, or creating the contract on behalf of the County from any other party to
the contract arising as the result of the contract.

OFFSET FOR DAMAGES

In addition to all other remedies at Law or Equity, the County may offset from any money
due to the Contractor any amounts Contractor owes to the County for damages resulting
from breach or deficiencies in performance of the contract.

SUBCONTRACTING

10.23.1 The Contractor may not assign to another Contractor or subcontract to another
party for performance of the terms and conditions hereof without the written
consent of the County. All correspondence authorizing subcontracting must
reference the bid serial number and identify the job or project.

10.23.2 The subcontractor’s rate for the job shall not exceed that of the prime Contractor's
rate, as bid in the pricing section, unless the prime Contractor is willing to absorb
any higher rates. The subcontractor’s invoice shall be invoiced directly to the prime
Contractor, who in turn shall pass-through the costs to the County, without mark-
up. A copy of the subcontractor’s invoice must accompany the prime Contractor's
invoice.

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AMENDMENTS

All amendments to this contract shall be in writing and approved/signed by both parties.
Maricopa County Office of Procurement Services shall be responsible for approving all
amendments for Maricopa County.

ADDITIONS/DELETIONS OF REQUIREMENTS

The County reserves the right to add and/or delete materials and services to a contract. If
aservice requirement is deleted, payment to the Contractor will be reduced proportionately,
to the amount of service reduced in accordance with the bid price. If additional materials
or services are required from a contract, prices for such additions will be negotiated
between the Contractor and the County.

RIGHTS IN DATA

10.26.1 The County shall have the use of data and reports resulting from a contract without
additional cost or other restriction except as may be established by law or
applicable regulation. Each party shall supply to the other party, upon request, any
available information that is relevant to a contract and to the performance
thereunder.

40.26.2 Data, records, reports, and all other information generated for the County by a third
party as the result of a contract are the property of the County and shall be provided
in a format designated by the County or shall be and remain accessible to the
County into perpetuity.

ACCESS TO AND RETENTION OF RECORDS FOR THE PURPOSE OF AUDIT AND/OR
OTHER REVIEW

140.27.1 In accordance with Section MC1-372 of the Maricopa County Procurement Code,
the Contractor agrees to retain (physical or digital copies of) all books, records,
accounts, statements, reports, files, and other records and back-up documentation
relevant to this contract for six years after final payment or until after the resolution
of any audit questions, which could be more than six years, whichever is longest.
The County, Federal or State auditors and any other persons duly authorized by
the department shall have full access to and the right to examine, copy, and make
use of, any and all said materials.

40.27.2 If the Contractor’s books, records, accounts, statements, reports, files, and other
records and back-up documentation relevant to this contract are not sufficient to
support and document that requested services were provided, the Contractor shall
reimburse Maricopa County for the services not so adequately supported and
documented.

AUDIT DISALLOWANCES

If at any time it is determined by the County that a cost for which payment has been made
is a disallowed cost, the County shall notify the Contractor in writing of the disallowance.
The course of action to address the disallowance shall be at sole discretion of the County,
and may include either an adjustment to future invoices, request for credit, request for a
check, or a deduction from current invoices submitted by the Contractor equal to the
amount of the disallowance, or to require reimbursement forthwith of the disallowed amount
by the Contractor by issuing a check payable to Maricopa County.

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STRICT COMPLIANCE

Acceptance by County of a performance that is not in strict compliance with the terms of
the contract shall not be deemed to be a waiver of strict compliance with respect to all other
terms of the contract.

VALIDITY

The invalidity, in whole or in part, of any provision of this contract shall not void or affect
the validity of any other provision of the contract.

SEVERABILITY

The removal, in whole or in part, of any provision of this contract shall not void or affect the
validity of any other provision of this contract.

RELATIONSHIPS

10.32.1 In the performance of the services described herein, the Contractor shall act solely
as an independent Contractor, and nothing herein or implied herein shall at any
time be construed as to create the relationship of employer and employee, co-
employee, pertnership, principal and agent, or joint venture between the County
and the Contractor.

10.32.2 The County reserves the right of final approval on proposed staff. Also, upon
request by the County, the Contractor will be required to remove any employees
working on County projects and substitute personnel based on the discretion of
the County within two business days, unless previously approved by the County.

NON-DISCRIMINATION

Contractor agrees to comply with all provisions and requirements of Arizona Executive
Order 2009-09, including flow down of all provisions and requirements to any
subcontractors. Executive Order 2009-09 supersedes Executive Order 99-4 and amends
Executive Order 75-5 and is hereby incorporated into this contract as if set forth in full
herein. During the performance of this contract, Contractor shall not discriminate against
any employee, client, or any other individual in any way because of that person’s age, race,
creed, color, religion, sex, disability, or national origin. (Arizona Executive Order 2009-09
can be viewed at https://apps.azsos.gov/public_services/regist 1/2009/46/governor.pdf).

WRITTEN CERTIFICATION PURSUANT to A.R.S. § 35-393.01

If vendor engages in for-profit activity and has 10 or more employees, and if this agreement
has a value of $100,000 or more, vendor certifies it is not currently engaged in, and agrees
for the duration of this agreement to not engage in, a boycott of goods or services from
Israel. This certification does not apply to a boycott prohibited by 50 U.S.C. § 4842 ora
regulation issued pursuant to 50 U.S.C. § 4842.

CERTIFICATION REGARDING DEBARMENT AND SUSPENSION

40.35.1 The undersigned (authorized official signing on behalf of the Contractor) certifies
to the best of his or her knowledge and belief that the Contractor, its current
officers, and directors:

10.35.1.1 are not presently debarred, suspended, proposed for debarment,
declared ineligible, or voluntarily excluded from being awarded any
contract or grant by any United States department or agency or any
state, or local jurisdiction;

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10.35.1.2 have not within a three-year period preceding this contract:

40.35.1.2.1 been convicted of fraud or any criminal offense in
connection with obtaining, attempting to obtain, or as the
result of performing a government entity (Federal, State or
local) transaction or contract; or

40.35.1.2.2 been convicted of violation of any Federal or State antitrust
statutes or conviction for embezzlement, theft, forgery,
bribery, falsification or destruction of records, making false
statements, or receiving stolen property regarding a
government entity transaction or contract;

10.35.1.3 are not presently indicted or criminally charged by a government entity
(Federal, State or local) with commission of any criminal offenses in
connection with obtaining, attempting to obtain, or as the result of
performing a government entity public (Federal, State or local)
transaction or contract;

10.35.1.4 are not presently facing any civil charges from any governmental entity
regarding obtaining, attempting to obtain, or from performing any
governmental entity contract or other transaction; and

10.35.1.5 have not within a three-year period preceding this contract had any
public transaction (Federal, State or local) terminated for cause or
default.

10.35.2 If any of the above circumstances described in the paragraph are applicable to the
entity submitting a bid for this requirement, include with your bid an explanation of
the matter including any final resolution.

10.35.3 The Contractor shall include, without modification, this clause in all lower tier
covered transactions (i.e., transactions with subcontractors or sub-subcontractors)
and in all solicitations for lower tier covered transactions related to this contract. If
this clause is applicable to a subcontractor or sub-subcontractor, the Contractor
shall include the information required by this clause with their bid.

VERIFICATION REGARDING COMPLIANCE WITH A.R.S. § 41-4401 AND FEDERAL
IMMIGRATION LAWS AND REGULATIONS

10.36.1 By entering into the contract, the Contractor warrants compliance with the
Immigration and Nationality Act (INA using E-Verify) and all other Federal
immigration laws and regulations related to the immigration status of its employees
and A.R.S. § 23-214(A). The Contractor shall obtain statements from its
subcontractors certifying compliance and shall furnish the statements to the
procurement officer upon request. These warranties shall remain in effect through
the term of the contract. The Contractor and its subcontractors shall also maintain
Employment Eligibility Verification forms (I-9) as required by the Immigration Reform
and Control Act of 1986, as amended from time to time, for all employees performing
work under the contract and verify employee compliance using the E-Verify system
and shall keep a record of the verification for the duration of the employee's
employment or at least three years, whichever is longer. 1-9 forms are available for

download at www.uscis.gov.

10.36.2 The County retains the legal right to inspect documents of Contractor and
subcontractor employees performing work under this contract to verify compliance
with paragraph 10.36.1 of this section. Contractor and subcontractor shall be given
reasonable notice of the County's intent to inspect and shall make the documents
available at the time and date specified. Should the County suspect or find that the

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Contractor or any of its subcontractors are not in compliance, the County will
consider this 2 material breach of the contract and may pursue any and 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. All costs
necessary to verify compliance are the responsibility of the Contractor.

CONTRACTOR LICENSE REQUIREMENT

40.37.1 The Contractor shall procure all permits, insurance, and licenses, and pay the
charges and fees necessary and incidental to the lawful conduct of his/her
business, and as necessary complete any requirements, by any and all
governmental or non-governmental entities as mandated to maintain compliance
with and remain in good standing. The Contractor shall keep fully informed of
existing and future trade or industry requirements, and Federal, State, and local
laws, ordinances, and regulations which in any manner affect the fulfillment of a
contract and shall comply with the same. Contractor shall immediately notify both
Office of Procurement Services and the department of any and all changes
concerning permits, insurance, or licenses.

10.37.2 Contractor furnishing finished products, materials, or articles of merchandise that
will require installation or attachment as part of the contract shall possess any
licenses required. Contractor is not relieved of its obligation to obtain and possess
the required licenses by subcontracting of the labor portion of the contract.
Contractors are advised to contact the Arizona Registrar of Contractors, Chief of
Licensing, to ascertain licensing requirements for a particular contract. Contractor
shall identify which license(s), if any, the Registrar of Contractors requires for
performance of the contract.

INFLUENCE

10.38.1 As prescribed in MC1-1203 of the Maricopa County Procurement Code, any effort
to influence an employee or agent to breach the Maricopa County Ethical Code of
Conduct or any ethical conduct, may be grounds for disbarment or suspension
under MC1-902.

10.38.2 An attempt to influence includes, but is not limited to:

10.38.2.1 A person offering or providing a gratuity, gift, tip, present, donation,
money, entertainment or educational passes or tickets, or any type of
valuable contribution or subsidy that is offered or given with the intent to
influence a decision, obtain a contract, garner favorable treatment, or
gain favorable consideration of any kind.

10.38.3 If a person attempts to influence any employee or agent of Maricopa County, the
chief procurement officer, or his designee, reserves the right to seek any remedy
provided by the Maricopa County Procurement Code, any remedy in equity or in
the law, or any remedy provided by this contract.

10.38.4 ABSOLUTELY NO CONTACT BETWEEN THE RESPONDENT AND ANY
COUNTY PERSONNEL, OTHER THAN THE OFFICE OF PROCUREMENT
SERVICES, |S ALLOWED DURING THE SOLICITATION PROCESS UNLESS
THE COMMUNICATION IS IN REGARD TO PRE-EXISTING BUSINESS WITH
THE COUNTY. ANY COMMUNICATIONS REGARDING THE SOLICITATION,
ITS PARTICIPANTS, OR ANY DOCUMENTATION PRIOR TO THE CONTRACT
AWARD MAY BE GROUNDS FOR DISMISSAL OF THE RESPONDENT FROM
THE EVALUATION PROCESS.

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CONFIDENTIAL INFORMATION

10.39.1 Any information obtained in the course of performing this contract may include
information that is proprietary or confidential to the County. This provision
establishes the Contractor's obligation regarding such information.

40.39.2 The Contractor shall establish and maintain procedures and controls that are
adequate to assure that no information contained in its records and/or obtained
from the County or from others in carrying out its functions (services) under the
contract shall be used by or disclosed by it, its agents, officers, or employees,
except as required to efficiently perform duties under the contract. The Contractor's
procedures and controls, at a minimum, must be the same procedures and controls
it uses to protect its own proprietary or confidential information. If, at any time
during the duration of the contract, the County determines that the procedures and
controls in place are not adequate, the Contractor shall institute any new and/or
additional measures requested by the County within 15 business days of the
written request to do so.

10.39.3 Any requests to the Contractor for County proprietary or confidential information
shall be referred to the County for review and approval, prior to any dissemination.

PUBLIC RECORDS

Under Arizona law, all offers submitted and opened are public records and must be
retained by the County at the Maricopa County Office of Procurement Services. Offers shall
be open to public inspection and copying after contract award and execution, except for
such offers or sections thereof determined to contain proprietary or confidential information
by the Office of Procurement Services. If an offeror believes that information in its offer or
any resulting contract should not be released in response to a public record request, under
Arizona law, the offeror shall indicate the specific information deemed confidential or
proprietary and submit a statement with its offer detailing the reasons that the information
should not be disclosed. Such reasons shall include the specific harm or prejudice which
may arise from disclosure. The records manager of the Office of Procurement Services
shall determine whether the identified information is confidential pursuant to the Maricopa
County Procurement Code.

INTEGRATION

This contract represents the entire and integrated agreement between the parties and
supersedes all prior negotiations, proposals, communications, understandings,
representations, or agreements, whether oral or written, expressed, or implied.

UNIFORM ADMINISTRATIVE REQUIREMENTS

By entering into this contract, the Contractor agrees to comply with all applicable provisions
of Title 2, Subtitle A, Chapter II, Part 200—UNIFORM ADMINISTRATIVE
REQUIREMENTS, COST PRINCIPLES, AND AUDIT REQUIREMENTS FOR FEDERAL
AWARDS contained in Title 2 C.F.R. § 200 et seq.

GOVERNING LAW
This contract shall be governed by the laws of the State of Arizona. Venue for any actions

or lawsuits involving this contract will be in Maricopa County Superior Court, Phoenix,
Arizona.

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FORCED LABOR

10.44.1 By submitting a bid for this solicitation and/or entering into a contract as a result of
this solicitation, Contractor agrees to comply with all applicable portions of Arizona

Revised Statutes Section 35-394. Contracting; procurement; prohibition;

written certification; remedy; termination; exception; definitions et. seq.

10.44.2 Contractor certifies that is does not currently, and agrees for the duration of the
contract that it will not, use:

40.44.2.1 the forced labor of ethnic Uyghurs in the People’s Republic of China;

10.44.2.2 any goods or services produced by the forced labor of ethnic Uyghurs
in the People’s Republic of China; and

10.44.2.3 any contractors, subcontractors or suppliers that use the forced labor or
any good or services produced by the forced labor of ethnic Uyghurs in
the People’s Republic of China.

10.44.3 If Contractor becomes aware during the term of the Agreement that Contractor is
not in compliance with this paragraph, the Contractor shall notify the County within
five business days after becoming aware of the noncompliance. If the Contractor
fails to provide a written certification to the County that the Contractor has
remedied the noncompliance within 180 days after notifying the County of its
noncompliance, then the Agreement terminates, except that if the Agreement
termination date occurs before the end the 180 day period, the Agreement
terminates on the Agreement termination date.

PRICES

Contractor warrants that prices extended to County under this contract are no higher than
those paid by any other customer for these or similar services.

ORDER OF PRECEDENCE
In the event of a conflict in the provisions of this contract and Contractor's license
agreement (including a conflict in the provisions of this contract, with the exception of
Exhibit C, and the provisions in the Standard Software Maintenance Agreement attached
at Exhibit C), if applicable, the terms of this contract shall prevail.
INCORPORATION OF DOCUMENTS
10.47.1 The following are to be attached to and made part of this Contract:

10.47.1.1 Exhibit A— Vendor Information and Attachment D-Pricing Page

10.47.1.2 Exhibit B - Scope of Work
10.47.1.3 Exhibit C — Standard Software Maintenance Agreement

10.47.1.4 Exhibit D — Office of Procurement Services Contractor Travel and Per
Diem Policy