VAI Marketing Grant Agreement

City of Chandler — Regular Meeting (2022-03-24)

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ARIZONA

OFFIC F TOURISM

VISIT ARIZONA INITIATIVE (VAI) MARKETING GRANT AGREEMENT
NO. GR-ARPA-11112021-02-002

Between the

STATE OF ARIZONA
ARIZONA OFFICE OF TOURISM

And the
CITY OF CHANDLER

This Grant Agreement (“Agreement”) is entered into by and between the State of Arizona (the
“State”), the Arizona Office of Tourism (““AOT”), located at 1110 W. Washington St., #155, Phoenix,
AZ 85007 and City of Chandler (“CoC”) located at 175 S. Arizona Ave., Chandler AZ 85225.

WHEREAS, A.R.S. § 41-101.01 authorizes the Office of the Governor to execute and administer
contracts and is charged with the responsibility of administering the Coronavirus State and Local
Fiscal Recovery Funds allocated to the State. The C.F.D.A. number for all activity pursuant to this
agreement is 21.027.

WHEREAS, this Agreement is entered into under the authority of A.R.S. §41-2702-2703 and the
solicitation waiver issued March 3, 2020 by the Arizona Department of Administration, which
authorizes grant agreements.

THEREFORE, it is agreed that the AOT shall provide funding to CoC for services under the terms of
this Agreement.

I. PURPOSE OF AGREEMENT
The purpose of this Agreement is to authorize use and provide funds from the American
Rescue Plan Act (“ARPA”) to CoC to support the tourism industry. The State was significantly
impacted by COVID-19, resulting in lost revenue and related jobs. The Visit Arizona Initiative
(VAI) Grant Program was created to provide recovery assistance to the State’s tourism industry
and funding through this Agreement supports projects that will contribute to that effort.

Under this Agreement, services must be provided by CoC in compliance with the rules of the
ARPA. The most current published rules can be found at: Treasury’s Interim Final Rule;
https://www.govinfo.gov/content/pkg/FR-202 1-05-17/pdf/2021-10283.pdf.

Il. TERM OF AGREEMENT, TERMINATION AND AMENDMENTS
This Agreement shall be effective November 11, 2021 and shall terminate on November 11,
2023, contingent upon funding. ' '

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Either party may terminate this Agreement at any earlier time by providing written notice to
the other party at least thirty (30) calendar days prior to the termination date. AOT agrees that
regardless of its termination date of this Agreement, CoC may use the funds distributed under
this Agreement to pay for any unpaid services already provided pursuant to this Agreement or
obligated prior to the termination date.

Amendments to this Agreement shall be made in writing signed by both parties.

Ill. DESCRIPTION OF SERVICES
CoC shall:

1. Utilize funding to support the approved efforts consistent with the funding provided by
the State via the Visit Arizona Initiative (VAI) Grant Program.

2. Maintain an AOT approved tracking of total payments and report to AOT on metrics to
be established through discussion between CoC and AOT as additional ARPA guidance
becomes available.

3. Utilize the State’s “The Grand Canyon State” logo on all project materials. The logo
and the words “The Grand Canyon State” must be legible. Logos are available HERE.

IV. MANNE F FINANC
AOT shall:
1. Provide to CoC $248,824 upon execution of this Agreement, for costs associated with
[services] activities referenced in Attachment A, CoC’s Proposal, incorporated into this
Agreement by this reference in its entirety.
2. Transfer any unused funding pursuant to this Agreement at the termination date back to
AOT.

3. Use the C.F.D.A. No. is 21.027 for all activity associated with this Agreement.

4. Resolve any questions regarding the appropriate use of the funds by mutual written
agreement between CoC and AOT; provided, that AOT has final say on the appropriate
use of funds.

CoC shall:

1. Resolve questions regarding the appropriate use of the funds by mutual agreement
between the CoC and AOT provided, that AOT has final say on the appropriate use of
funds.

2. Use the C.F.D.A. No. is 21.027 for all activity associated with this Agreement.

3. Provide to AOT proof of funding match when requested.

V. REPORTING REQUIREMENTS

CoC shall submit quarterly programmatic and financial reports to AOT for all expenditures
incurred under this Agreement. The report deadlines are set below.

Q3 January 1 - March 31, 2022 (Report Due: April 1, 2022)
Q4 April 1 - June 30, 2022 (Report Due: July 1, 2022)
QI July 1 - September 30, 2022 (Report Due: October 3, 2022)

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Q2 October 1 - December 31, 2022 (Report Due: December 30, 2022)

The format for these reports will be developed by AOT with input and direction from the
Governor’s Office to ensure proper reporting of quantifiable impact metrics as required under
Federal guidance and per the executed Inter-State Agreement between AOT and the
Governor’s Office. Current metrics are based on U.S. Treasury’s expenditure category “2.11
Aid to Tourism, Travel or Hospitality” but these may be adjusted and/or other metrics added as
needed:

A. Sector of employer

B. Purpose of funds

C. Impact of projects funded

VI. DOCUMENTS INCORPORATED BY REFERENCE
The State’s Uniform Terms and Conditions V9_ (Rev 7-1-2013) are incorporated into this
document as if fully set forth herein. Copies of the Uniform Terms and Conditions may be
accessed HERE. CoC warrants that it has read and understands the Uniform Terms and
Conditions V9_ (Rev 7-1-2013) and agrees to be bound to those applicable provisions by them
in their entirety. In the event of any divergence between this Agreement and the Uniform
Terms and Conditions, this Agreement shall control.

VII. NON-AVAILABILITY OF FUNDS

In accordance with A.R.S. § 35-154, every payment obligation of AOT under the Agreement is
conditioned upon the availability of funds appropriated or allocated for payment of such
obligation. If funds are not allocated and available for the continuance of this Agreement, this
Agreement may be terminated by AOT at the end of the period for which funds are available.
No liability shall accrue to AOT in the event this provision is exercised, and AOT shall not be
obligated or liable for any future payments or for any damages as a result of termination under
this paragraph.

VU. AUDIT
In accordance with A.R.S. § 35-214, CoC shall retain and shall contractually require each grant
recipient and sub-contractor to retain all data, books and other records (“records”) relating to
this Agreement for a period of five years after completion of the Agreement. All records shall
be subject to inspection and audit by the AOT at reasonable times. Upon request, CoC shall
produce the original of any or all such records.

IX. CONFLICT OF INTEREST.
In accordance with A.R.S. § 38-511, AOT may within three years after execution cancel the
Agreement, without penalty or further obligation, if any person significantly involved in
initiating, negotiating, securing, drafting or creating the Agreement on behalf of AOT, at any
time while the Agreement is in effect, becomes an employee or agent or any other party to the
Agreement in any capacity or a consultant to any other party of the Agreement with respect to
the matter of the Agreement.

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ARIZONA

OFFIC F TOURISM

X. INDEMNIFICATION CLAUSE:

CoC shall indemnify, defend, save and hold harmless the State, its departments, agencies,
boards, commissions, universities and its 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 CoC or any of
its owners, officers, directors, agents, employees or sub-contractors. This indemnity includes
any claim or amount arising out of or recovered under the Workers’ Compensation Law or
arising out of the failure of CoC 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 CoC from and against any and all
claims. It is agreed that CoC recipient will be responsible for primary loss investigation,
defense and judgment costs where this indemnification is applicable. In consideration of the
award of this Agreement, CoC agrees to waive all rights of subrogation against the State, its
officers, officials, agents and employees for losses arising from the work performed by CoC for
the State.

This indemnity shall not apply if CoC or sub-contractor(s) is/are an agency, board, commission
or university of the State.

XI. INSURANCE REQUIREMENTS PROFESSIONAL SERVICES:
CoC and sub-contractors shall procure and maintain until all of their obligations have been
discharged, including any warranty periods under this Agreement, are satisfied, insurance
against claims for injury to persons or damage to property which may arise from or in
connection with the performance of the work hereunder by CoC, its agents, representatives,
employees or sub-contractors.

The insurance requirements herein are minimum requirements for this Agreement and in no
way limit the indemnity covenants contained in this Agreement. The State in no way warrants
that the minimum limits contained herein are sufficient to protect CoC from liabilities that
might arise out of the performance of the work under this Agreement by CoC, its agents,
representatives, employees or sub-contractors, and CoC is free to purchase additional
insurance.

A. MINIMUM SCOPE AND LIMITS OF INSURANCE: CoC shall provide coverage with
limits of liability not less than those stated below.

1. Commercial General Liability - Occurrence Form
Policy shall include bodily injury, property damage, personal injury and broad form
contractual liability coverage.
e General Aggregate $2,000,000

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OFFIC F TOURISM
e Products — Completed Operations Aggregate $1,000,000
° Personal and Advertising Injury $1,000,000
e Blanket Contractual Liability — Written and Oral $1,000,000
e Fire Legal Liability $ 50,000
e Each Occurrence $1,000,000

a. The policy shall be endorsed to include the following additional insured
language: “The State of Arizona, its departments, agencies, boards,
commissions, universities and its officers, officials, agents, and employees
shall be named as additional insureds with respect to liability arising out of
the activities performed by or on behalf of the CoC".

b. Policy shall contain a waiver of subrogation against the State, its departments,
agencies, boards, commissions, universities and its officers, officials, agents,
and employees for losses arising from work performed by or on behalf of CoC.

2. Business Automobile Liability

Bodily Injury and Property Damage for any owned, hired, and/or non-owned vehicles
used in the performance of this Agreement.

Combined Single Limit (CSL) $1,000,000

3. Worker's Compensation and Employers' Liability

Workers' Compensation Statutory
Employers' Liability
Each Accident $ 500,000
Disease — Each Employee $ 500,000
Disease — Policy Limit $1,000,000

a. Policy shall contain a waiver of subrogation against the State, its departments,
agencies, boards, commissions, universities and its officers, officials, agents,
and employees for losses arising from work performed by or on behalf of CoC.

b. This requirement shall not apply to: Separately, each CoC or sub-contractor
exempt under A.R.S. 23-901, and when CoC or sub-contractor executes the
appropriate waiver (Sole Proprietor/Independent grant recipient) form.

4. Professional Liability (Errors and Omissions Liability)
Each Claim : $1,000,000
Annual Aggregate $2,000,000

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ARIZONA

OFFICE OF TOURISM

a. In the event that the professional liability insurance required by this Agreement
is written on a claims-made basis, CoC warrants that any retroactive date under
the policy shall precede the effective date of this Agreement; and that 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
Agreement is completed.

b. The policy shall cover professional misconduct or lack of ordinary skill for
those positions defined in the Scope of Work of this Agreement.

B. ADDITIONAL INSURANCE REQUIREMENTS: The policies shall include, or be
endorsed to include, the following provisions:

1. The State, its departments, agencies, boards, commissions, universities and its officers,
officials, agents, and employees wherever additional insured status is required. Such
additional insured shall be covered to the full limits of liability purchased by CoC, even
if those limits of liability are in excess of those required by this Agreement.

2. CoC's insurance coverage shall be primary insurance with respect to all other available
sources. .°

3. Coverage provided by CoC shall not be limited to the liability assumed under the
indemnification provisions of this Agreement.

C. NOTICE OF CANCELLATION: With the exception of (10) day notice of cancellation
for non-payment of premium, any changes material to compliance with this Agreement in
the insurance policies above shall require (30) days written notice to the State. Such notice
shall be sent directly to the Arizona Office of Tourism, 1110 W. Washington St., Suite
155, Phoenix, Arizona 85007 and shall be sent by certified mail, return receipt requested.

D. ACCEPTABILITY OF INSURERS: Insurance is to be placed with duly licensed or
approved non-admitted insurers in the State with an “A.M. Best” rating of not less than A-
VII. The State in no way warrants that the above-required minimum insurer rating is
sufficient to protect CoC from potential insurer insolvency.

E. VERIFICATION OF COVERAGE: CoC shall furnish the State with certificates of
insurance (ACORD form or equivalent approved by the State) as required by this
Agreement. The certificates for each insurance policy are to be signed by a person
authorized by that insurer to bind coverage on its behalf.

All certificates and endorsements are to be received and approved by the State before work
commences. Each insurance policy required by this Agreement must be in effect at or prior
to commencement of work under this Agreement and remain in effect for the duration of
the project. Failure to maintain the insurance policies as required by this Agreement, or to
provide evidence of renewal, is a material breach of Agreement.

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ARIZONA

OFFIC OF TOURISM

All certificates required by this Agreement shall be sent directly to the Arizona Office of
Tourism, 1110 W. Washington St., Suite 155, Phoenix, Arizona 85007. The State
project/agreement number and project description shall be noted on the certificate of
insurance. The State reserves the right to require complete, certified copies of all insurance
policies required by this Agreement at any time. DO NOT SEND CERTIFICATES OF
INSURANCE TO THE STATE OF ARIZONA'S RISK MANAGEMENT DIVISION.

FE. SUB-CONTRACTORS: CoC certificate(s) shall include all sub-contractors as insureds
under its policies or CoC shall furnish to the State separate certificates and endorsements
for each sub-contractor. All coverages for sub-contractors shall be subject to the minimum
requirements identified above.

G. APPROVAL: Any modification or variation from the insurance requirements in this
Agreement shall be made by AOT in consultation with the Department of Administration,
Risk Management Division. Such action will not require a formal Agreement amendment,
but may be made by administrative action.

H. EXCEPTIONS: In the event CoC or sub-contractor(s) is/are a public entity, then the
Insurance Requirements shall not apply. Such public entity shall provide a Certificate of
Self-Insurance. If CoC or sub-contractor(s) is/are a State agency, board, commission, or
university, none of the above shall apply.

XII. OTHER
It is agreed that the parties to this Agreement have participated fully in the negotiation and

preparation of the Agreement. Any rule of construction to the effect that ambiguities are to be
resolved against the drafting party shall not apply in interpreting this Agreement. The parties
acknowledge they have been advised by counsel, or have had the opportunity to be advised by
counsel, in the negotiation and execution of the Agreement.

XIII. NOTICES
CoC shall address all notices relative to this Agreement to:

Lena Allen

Senior Community Affairs Manager

Arizona Office of Tourism

1110 W. Washington St., Suite 155, Phoenix, Arizona 85007
Email: lallen@tourism.az.gov

AOT shall address all notices relative to this Agreement to:

Kimberly Janes

Tourism Program Manager

Visit Chandler

175 S. Arizona Ave., Chandler AZ 85225

Agreement No. GR-ARPA-11112021-02-002 Page 7 of 8

ARIZONA

OFFIC F TOURISM

Email: kimberly.janes@chandleraz.gov

IN WITNESS WHEREOPF, the parties hereto agree to execute this Agreement.

CITY OF CHANDLER THE ARIZONA OFFICE OF TOURISM
Joshua H. Wright Date Debbie Johnson Date
City Manager Director

APPROVED AS TO FORM

CITY ATTORNEY - Alix Skelpsa Ridgway Date

Director of Government & Community Affairs

AOT Grant Review: L]
Agreement No. GR-ARPA-11112021-02-002 Page 8 of 8

UNIFORM TERMS AND CONDITIONS

Version 9

1. Definition of Terms

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

follows:

1.1.

1.2.

1.3.

1.4.

1.5.

1.6.

1.7.

1.8.

1.9.

1.13.

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

“Contract” means the combination of the Solicitation, including the Uniform and Special
Instructions to Offerors, the Uniform and Special Terms and Conditions, and the
Specifications and Statement or Scope of Work; the Offer and any Best and Final Offers;
and any Solicitation Amendments or Contract Amendments.

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

“Contractor” means any person who has a Contract with the State.
“Days” means calendar days unless otherwise specified.

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

“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.

“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.

“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.

“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.

“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.

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

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

2. Contract Interpretation

2.1.

Arizona Law. The Arizona law applies to this Contract including, where applicable, the
Uniform Commercial Code as adopted by the State of Arizona and the Arizona

‘Procurement Code, Arizona Revised Statutes (A.R.S.) Title 41, Chapter 23, and its

implementing rules, Arizona Administrative Code (A.A.C.) Title 2, Chapter 7.

Uniform Terms and Conditions Page 1 of 9
Updated: July 1, 2013

2.2.

2.3.

2.4.

2.5.

2.6.

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.

Contract Order of Precedence. In the event of a conflict in the provisions of the Contract,
as accepted by the State and as they may be amended, the following shall prevail in the
order set forth below:

2.3.1. Special Terms and Conditions;

2.3.2. Uniform Terms and Conditions;

2.3.3. Statement or Scope of Work;

2.3.4. Specifications;

2.3.5. Attachments;

2.3.6. Exhibits;

2.3.7. Documents referenced or included in the Solicitation.

Relationship of Parties. The Contractor under this Contract is an independent Contractor.
Neither party to this Contract shall be deemed to be the employee or agent of the other

party to the Contract.

Severability. The provisions of this Contract are severable. Any term or condition
deemed illegal or invalid shall not affect any other term or condition of the Contract.

No Parole Evidence. This Contract is intended by the parties as a final and complete
expression of their agreement. No course of prior dealings between the parties and no
usage of the trade shall supplement or explain any terms used in this document and no
other understanding either oral or in writing shall be binding.

No Waiver. Either party's failure to insist on strict performance of any term or condition of
the Contract shall not be deemed a waiver of that term or condition even if the party
accepting or acquiescing in the nonconforming performance knows of the nature of the
performance and fails to object to it.

3. Contract Administration and Operation

3.1.

3.2.

3.3.

3.4.

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 records shall be subject to inspection and audit by the
State at reasonable times. Upon request, the Contractor shall produce a legible copy of
any or all such records.

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.

Audit. Pursuant to ARS § 35-214, at any time during the term of this Contract and five (5)
years thereafter, the Contractor's or any subcontractor's books and records shall be
subject to audit by the State and, where applicable, the Federal Government, to the extent
that the books and records relate to the performance of the Contract or Subcontract.

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.

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Updated: July 1, 2013

3.5.

3.6.

3.7.

3.8.

3.9.

3.10

3.11

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.

Notices. Notices to the Contractor required by this Contract shall be made by the State to
the person indicated on the Offer and Acceptance form submitted by the Contractor
unless otherwise stated in the Contract. Notices to the State required by the Contract
shall be made by the Contractor to the Solicitation Contact Person indicated on the
Solicitation cover sheet, unless otherwise stated in the Contract. An authorized
Procurement Officer and an authorized Contractor representative may change their
respective person to whom notice shall be given by written notice to the other and an
amendment to the Contract shall not be necessary.

Advertising, Publishing and Promotion of Contract. The Contractor shall not use,
advertise or promote information for commercial benefit concerning this Contract without
the prior written approval of the Procurement Officer.

Property of the State. Any materials, including reports, computer programs and other
deliverables, created under this Contract are the sole property of the State. The
Contractor is not entitled to a patent or copyright on those materials and may not transfer
the patent or copyright to anyone else. The Contractor shall not use or release these
materials without the prior written consent of the State.

Ownership of Intellectual Property. Any and all intellectual property, including but not
limited to copyright, invention, trademark, trade name, service mark, and/or trade secrets
created or conceived pursuant to or as a result of this contract and any related
subcontract (“Intellectual Property’), shall be work made for hire and the State shall be
considered the creator of such Intellectual Property. The agency, department, division,
board or commission of the State of Arizona requesting the issuance of this contract shall
own (for and on behalf of the State) the entire right, title and interest to the Intellectual
Property throughout the world. Contractor shall notify the State, within thirty (30) days, of
the creation of any Intellectual Property by it or its subcontractor(s). Contractor, on behalf
of itself and any subcontractor(s), agrees to execute any and all document(s) necessary
to assure ownership of the Intellectual Property vests in the State and shall take no
affirmative actions that might have the effect of vesting all or part of the Intellectual
Property in any entity other than the State. The Intellectual Property shall not be disclosed
by contractor or its subcontractor(s) to any entity not the State without the express written
authorization of the agency, department, division, board or commission of the State of
Arizona requesting the issuance of this contract.

Federal Immigration and Nationality Act. The contractor shall comply with all federal,
state and local immigration laws and regulations relating to the immigration status of their
employees during the term of the contract. Further, the contractor shall flow down this
requirement to all subcontractors utilized during the term of the contract. The State shall
retain the right to perform random audits of contractor and subcontractor records or to
inspect papers of any employee thereof to ensure compliance. Should the State
determine that the contractor and/or any subcontractors be found 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.

E-Verify Requirements. In accordance with A.R.S. § 41-4401, Contractor warrants
compliance with all Federal immigration laws and regulations relating to employees and
warrants its compliance with Section A.R.S. § 23-214, Subsection A.

Offshore Performance of Work Prohibited.

Any services that are described in the specifications or scope of work that directly serve
the State of Arizoria 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.

Uniform Terms and Conditions Page 3 of 9
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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.

4. Costs and Payments

4.1. Payments. Payments shall comply with the requirements of A.R.S. Titles 35 and 41, Net
30 days. Upon receipt and acceptance of goods or services, the Contractor shall submit
a complete and accurate invoice for payment from the State within thirty (30) days.

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 of Arizona 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.

4.3.4. IRS W9 Form. In order to receive payment the Contractor shall have a current
.R.S. W9 Form on file with the State of Arizona, unless not required by law.

44. 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.

4.5. 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 goods or
services are not funded, the State may take any of the following actions:

4.5.1. Accept a decrease in price offered by the contractor;

4.5.2. Cancel the Contract; or

4.5.3. Cancel the contract and re-solicit the requirements.
5. Contract Changes

5.1... 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 Amendment
within the scope of the Contract. Changes to the Contract, including the addition of work
or materials, the revision of payment terms, or the substitution of work or materials, .
directed by a person who is not specifically authorized by the procurement officer in writing
or made unilaterally by the Contractor are violations of the Contract and of applicable law.

Uniform Terms and Conditions Page 4 of 9
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Such changes, including unauthorized written Contract Amendments shall be void and
without effect, and the Contractor shall not be entitled to any claim under this Contract
based on those changes.

5.2. Subcontracts. 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 clearly list any proposed subcontractors and the
subcontractor’s proposed responsibilities. 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. 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. Mere receipt does not constitute final acceptance. 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) The parties to this
contract agree that the State of Arizona, its departments, agencies, boards and
commissions shall be indemnified and held harmless by the contractor for the
vicarious liability of the State as a result of entering into this contract. However,
the parties further agree that the State of Arizona, its departments, agencies,
boards and commissions shall be responsible for its own negligence. Each party
to this contract is 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."

6.3. Indemnification - Patent and Copyright. The Contractor shall indemnify and hold harmless
the State against any liability, including costs and expenses, for infringement of any
patent, trademark or copyright arising out of Contract performance or use by the State of
materials furnished or work performed under this Contract. The State shall reasonably
notify the Contractor of any claim for which it may be liable under this paragraph. If the
contractor is insured pursuant to A.R.S. § 41-621 and § 35-154, this section shall not

apply.

6.4. Force Majeure.

6.4.1 Except for payment of sums due, neither party shall be liable to the other nor
deemed in default under this Contract if and to the extent that such party's
performance of this Contract is prevented by reason of force majeure. The term
“force majeure” means an occurrence that is beyond the control of the party
affected and occurs without its fault or negligence. Without limiting the foregoing,
force majeure includes acts of God; acts of the public enemy; war; riots; strikes;
mobilization; labor disputes; civil disorders; fire; flood; lockouts; injunctions-
intervention-acts; or failures or refusals to act by government authority; and other
similar occurrences beyond the control of the party declaring force majeure which
such party is unable to prevent by exercising reasonable diligence.

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6.4.2. Force Majeure shall not include the following occurrences:

6.4.2.1. Late delivery of equipment or materials caused by congestion at a
manufacturer's plant or elsewhere, or an oversold condition of the
market;

6.4.2.2. Late performance by a subcontractor unless the delay arises out of a
force majeure occurrence in accordance with this force majeure term and
condition; or

6.4.2.3. Inability of either the Contractor or any subcontractor to acquire or
maintain any required insurance, bonds, licenses or permits.

6.4.3. _ If either party is delayed at any time in the progress of the work by force majeure,
the delayed party shall notify the other party in writing of such delay, as soon as is
practicable and no later than the following working day, of the commencement
thereof and shall specify the causes of such delay in such notice. Such notice
shall be delivered or mailed certified-return receipt and shall make a specific
reference to this article, thereby invoking its provisions. The delayed party shall
cause such delay to cease as soon as practicable and shall notify the other party
in writing when it has done so. The time of completion shall be extended by
Contract Amendment for a period of time equal to the time that results or effects
of such delay prevent the delayed party from performing in accordance with this
Contract.

6.4.4. Any delay or failure in performance by either party hereto shall not constitute
default hereunder or give rise to any claim for damages or loss of anticipated
profits if, and to the extent that such delay or failure is caused by force majeure.

6.5. Third Party Antitrust Violations. The Contractor assigns to the State any claim for
overcharges resulting from antitrust violations to the extent that those violations concern
materials or services supplied by third parties to the Contractor, toward fulfillment of this

Contract.
7. Warranties
7.1. Liens. The Contractor warrants that the materials supplied under this Contract are free of

liens and shall remain free of liens.

tds Quality. Unless otherwise modified elsewhere in these terms and conditions, the
Contractor warrants that, for one 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;

7.2.2. Fit for the intended purposes for which the materials are used;

7.2.3. Within the variations permitted by the Contract and are of even kind, quantity, and
quality within each unit and among all units;

7.2.4. Adequately contained, packaged and marked as the Contract may require; and

7.2.5. Conform to the written promises or affirmations of fact made by the Contractor.
7.3. Fitness. The Contractor warrants that any material supplied to the State shall fully

conform to all requirements of the Contract and all representations of the Contractor, and

shall be fit for all purposes and uses required by the Contract.

7A. Inspection/Testing. The warranties set forth in subparagraphs 7.1 through 7.3 of this

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7.5.

76.

paragraph are not affected by inspection or testing of or payment for the materials by the
State.

Compliance With Applicable Laws. The materials and services supplied under this
Contract shall comply with all applicable Federal, state and local laws, and the Contractor
shall maintain all applicable license and permit requirements.

Survival of Rights and Obligations after Contract Expiration or Termination.

7.6.1. Contractor's Representations and Warranties. All representations and warranties
made by the Contractor under this Contract shall survive the expiration or
termination hereof. In addition, the parties hereto acknowledge that pursuant to
A.R.S. § 12-510, except as provided in A.R.S. § 12-529, the State is not subject
to or barred by any limitations of actions prescribed in A.R.S., Title 12, Chapter 5.

7.6.2. 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
hereof, unless otherwise directed in writing by the Procurement Officer, including,
without limitation, all purchase orders received prior to but not fully performed and
satisfied at the expiration or termination of this Contract.

8. State's Contractual Remedies

8.1.

8.2.

8.3.

8.4.

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8.5.

Right to Assurance. If the State in good faith has reason to believe that the Contractor
does not intend to, or is unable to perform or continue performing under this Contract, the
Procurement Officer may demand in writing that the Contractor give a written assurance
of intent to perform. Failure by the Contractor to provide written assurance within the
number of Days specified in the demand may, at the State’s option, be the basis for
terminating the Contract under the Uniform Terms and Conditions or other rights and
remedies available by law or provided by the contract.

Stop Work Order.

8.2.1. The State 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
period(s) of days indicated by the State after the order is delivered to the
Contractor. 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 steps to minimize the incurrence of
costs allocable to the work covered by the order during the period of work
stoppage.

8.2.2. If a stop work order issued under this clause is canceled or the period of the order
or any extension expires, the Contractor shall resume work. The Procurement
Officer shall make an equitable adjustment in the delivery schedule or Contract
price, or both, and the Contract shall be amended in writing accordingly.

Non-exclusive Remedies. The rights and the remedies of the State under this Contract
are not exclusive.

Nonconforming Tender. Materials or services supplied under this Contract shall fully
comply with the Contract. The delivery of materials or services or a portion of the
materials or services that do not fully comply constitutes a breach of contract. On delivery
of nonconforming materials or services, the State may terminate the Contract for default
under applicable termination clauses in the Contract, exercise any of its rights and
remedies under the Uniform Commercial Code, or pursue any other right or remedy
available to it.

Right of Offset. The State shall be entitled to offset against any sums due the Contractor,
any expenses or costs incurred by the State, or damages assessed by the State

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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.

Contract Termination

9.1.

9.2.

9.3.

9.4.

9.5.

Cancellation for Conflict of Interest. Pursuant to A.R.S. § 38-511, the State may cancel
this Contract within three (3) years after Contract execution without penalty or further
obligation if any person significantly involved in initiating, negotiating, securing, drafting or
creating the Contract on behalf of the State is or becomes at any time while the Contract
or an extension of the Contract is in effect an employee of or a consultant to any other
party to this Contract with respect to the subject matter of the Contract. The cancellation
shall be effective when the Contractor receives written notice of the cancellation unless
the notice specifies a later time. If the Contractor is a political subdivision of the State, it
may also cancel this Contract as provided in A.R.S. § 38-511.

Gratuities. The State may, by written notice, terminate this Contract, in whole or in part, if
the State determines that employment or a Gratuity was offered or made by the
Contractor or a representative of the Contractor to any officer or employee of the State for
the purpose of influencing the outcome of the procurement or securing the Contract, an
amendment to the Contract, or favorable treatment concerning the Contract, including the
making of any determination or decision about contract performance. The State, in
addition to any other rights or remedies, shall be entitled to recover exemplary damages
in the amount of three times the value of the Gratuity offered by the Contractor.

Suspension or Debarment. The State may, by written notice to the Contractor,

. immediately terminate this Contract if the State determines that the Contractor has been

debarred, suspended or otherwise lawfully prohibited from participating in any public
procurement activity, including but not limited to, being disapproved as a subcontractor of
any public procurement unit or other governmental body. Submittal of an offer or
execution of a contract shall attest that the contractor is not currently suspended or
debarred. If the contractor becomes suspended or debarred, the contractor shall
immediately notify the State.

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 accepted before the effective date of the termination. The cost
principles and procedures provided in A.A.C. R2-7-701 shall apply.

Termination for Default.

9.5.1. In addition to the rights reserved in the contract, the State may terminate the
Contract in whole or in part due to the failure of the Contractor to comply with any
term or condition of the Contract, to acquire and maintain all required insurance
policies, bonds, licenses and permits, or to make satisfactory progress in
performing the Contract. The Procurement Officer shall provide written notice of
the termination and the reasons for it to the Contractor.

9.5.2. Upon termination under this paragraph, all goods, materials, documents, data
and reports prepared by the Contractor under the Contract shall become the
property of and be delivered to the State on demand.

9.5.3. The State may, upon termination of this Contract, procure, on terms and in the
manner that it deems appropriate, materials or services to replace those under

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10.

11.

12.

this Contract. The Contractor shall be liable to the State for any excess costs
incurred by the State in procuring materials or services in substitution for those
due from the Contractor.

9.6. Continuation of Performance Through Termination. The Contractor shall continue to
perform, in accordance with the requirements of the Contract, up to the date of
termination, as directed in the termination notice.

Contract Claims

All contract claims or controversies under this Contract shall be resolved according to A.R.S. Title
41, Chapter 23, Article 9, and rules adopted thereunder.

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 (Title 41).

Comments Welcome

The State Procurement Office periodically reviews the Uniform Terms and Conditions and
welcomes any comments you may have. Please submit your comments to: State Procurement
Administrator, State Procurement Office, 100 North 15" Avenue, Suite 201, Phoenix, Arizona,
85007.

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