HomeMy WebLinkAboutCity Council Committees - Committee of the Whole - 02/04/2025 KENT CITY COUNCIL
• COMMITTEE OF THE WHOLE
KENT Tuesday, February 4, 2025
W A S H IN G T O N
4:00 PM
Chambers
A live broadcast is available on Kent TV21,
www.facebook.com/CitvofKent, and
www.youtube.com/user/KentTV21
To listen to this meeting, dial
253-215-8782 or 253-205-0468
Enter Meeting ID: 87459075269
Join the meeting
Mayor Dana Ralph
Council President Satwinder Kaur
Councilmember Bill Boyce Councilmember Marli Larimer
Councilmember John Boyd Councilmember Zandria Michaud
Councilmember Brenda Fincher Councilmember Toni Troutner
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Item Description Action Speaker Time
1. CALL TO ORDER
2. ROLL CALL
3. AGENDA APPROVAL
Changes from Council, Administration, or Staff.
4. DEPARTMENT PRESENTATIONS
Operations-Council President Kaur, Subject Matter Chair
A. Approval of Minutes YES
A. Committee of the Whole - Committee of the Whole - Regular Meeting - Jan
21, 2025 4:00 PM
B. Payment of Bills - Approve YES Paula Painter 01 MIN.
C. INFO ONLY: 2025 Liability NO Ellaine Wi 15 MIN.
Insurance Renewals
D. CDW Government LLC - YES James Endicott 05 MIN.
Cooperative Purchase Agreement
- Authorize
Committee of the Whole Committee of the Whole - February 4, 2025
Regular Meeting
Economic and Community Development-Councilmember Larimer, Subject
Matter Chair
E. Appointments to the Lodging Tax YES Michelle Wilmot 05 MIN.
Advisory Committee - Appoint
Parks-Councilmember Michaud, Subject Matter Chair
F. Consultant Services Agreement YES Bryan Higgins 05 MIN.
with MacLeod Reckord, PLLC -
Authorize
G. 2025-2029 Art Plan - Approve YES Ronda Billerbeck 10 MIN.
Public Safety-Council member Boyce, Subject Matter Chair
H. Renew Agreement with Flock YES Commander Bava 05 MIN.
Group, Inc. - Authorize
Public Works-Councilmember Fincher, Subject Matter Chair
I. Kent Water Franchise Agreement YES Joe Araucto 10 MIN.
in City of Auburn - Authorize
J. Sale of City Parcel to King County YES Cheryl Rolcik-Wilcox 05 MIN.
- Authorize
K. 2024 PSRC Transportation Grants YES David Paine 05 MIN.
- South 212th Street
Preservation (59th to Place South
to 72nd Avenue South) - Accept
L. 2024 PSRC Grant - South 196th YES David Paine 05 MIN.
Street Preservation Project -
Accept
M. 2024 PSRC Grant - Earthworks YES David Paine 05 MIN.
Park to Downtown Connection -
Accept
S. ADJOURNMENT
Unless otherwise noted, Council will hold Committee of the Whole at 4 p.m. on the first and third Tuesday of
each month.
Public Comment may be submitted in writing to the City Clerk at the meeting,which will be distributed to
each councilmember and admitted into the record, but will not be read aloud at the meeting. In order to
be admitted into the record,written comments shall be submitted not less than three hours prior to the start
of the Committee of the Whole meeting to Cityclerk@kentwa.cgov, unless a person appears in-person,in
which case,the written comments will be handed to the City Clerk and will be admitted into the record of
the Committee of the Whole meeting.
Committee of the Whole Committee of the Whole - February 4, 2025
Regular Meeting
For additional information, please contact Kimberley A. Komoto, City Clerk at 253-856-5725,or
email CityClerk@kentwa.gov.
Any person requiring a disability accommodation should contact the City Clerk at 253-856-5725 in advance
of the meeting. For TDD relay service, call Washington Telecommunications Relay Services at 7-1-1.
4.A.A
Pending Approval
Kent City Council - Committee
• of the Whole
KENT Committee of the Whole -
WAS M IN G 7 0 N
Regular Meeting
Minutes
January 21, 2025
Date: January 21, 2025
Time: 4:00 p.m.
Place: Chambers
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1. CALL TO ORDER
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Council President Kaur called the meeting to order. o
2. ROLL CALL °
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Attendee Name =Title Status Arrived
Satwinder Kaur Council President Present
Bill Boyce Councilmember Excused a
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John Boyd Councilmember Present
Brenda Fincher Councilmember Present N
Marli Larimer Councilmember Present N
Zandria Michaud Councilmember Present N
Toni Troutner Councilmember Present
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3. AGENDA APPROVAL
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A. I move to approve the agenda as presented. _
RESULT: MOTION PASSES [UNANIMOUS]
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MOVER: Toni Troutner, Councilmember a
SECONDER: John Boyd, Councilmember
AYES: Kaur, Boyd, Fincher, Larimer, Michaud, Troutner a
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4. DEPARTMENT PRESENTATIONS
A. Approval of Minutes YES
Committee of the Whole - Committee of the Whole - Regular Meeting - Dec
10, 2024 4:00 PM
Packet Pg. 4
4.A.A
Kent City Council - Committee of the Whole January 21, 2025
Committee of the Whole - Regular Meeting Kent, Washington
Minutes
......................................................................................................................................................................................................................................................................................................._...............................................................................................................................................................................................................
RESULT: APPROVED [UNANIMOUS]
MOVER: Marli Larimer, Councilmember
SECONDER: John Boyd, Councilmember
AYES: Kaur, Boyd, Fincher, Larimer, Michaud, Troutner
B. Payment of Bills - Approve
MOTION: I move to approve the payment of bills.
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RESULT: MOTION PASSES [UNANIMOUS] Next: 2/4/2025 7:00 PM
MOVER: John Boyd, Councilmember
SECONDER: Zandria Michaud, Councilmember o
AYES: Kaur, Boyd, Fincher, Larimer, Michaud, Troutner o
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C. 4232 : Introduction of Ordinance No. 4512 Granting a Non- a
Exclusive 10-year Franchise with Ezee Fiber Texas 15
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Deputy City Attorney, Christina Schuck introduced Ordinance No. 4512, o
granting a non-exclusive 10-year franchse with Ezee Fiber Texas.
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Ezee Fiber Texas, LLC applied for a franchise to construct and install a fiber Co
optic network throughout the City to provide telecommunications services, N
including internet access to residents and businesses within the City. r_
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This franchise has a 10-year term and includes standard provisions governing
the construction, operation, and maintenance of Ezee's fiber optic network
and related equipment.
State law prohibits an ordinance granting a franchise from being adopted on
the day it is introduced. This franchise will be considered by the Committee 2
of the Whole today; introduced to the full City Council on the consent agenda
today as an as an information only item; and then considered for final a
adoption at the February 4, 2025 City Council Meeting.
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MOTION: I move to introduce Ordinance No. 4512, at the
January 21, 2025 City Council meeting, which if later adopted
by Council, will grant a non-exclusive 10-year franchise with
Ezee Fiber Texas, LLC for the installation of a fiber optic
network, subject to final franchise terms and conditions
acceptable to the City Attorney.
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Page 2 of 6 Packet Pg. 5
4.A.A
Kent City Council - Committee of the Whole January 21, 2025
Committee of the Whole - Regular Meeting Kent, Washington
Minutes
......................................................................................................................................................................................................................................................................................................._...............................................................................................................................................................................................................
RESULT: MOTION PASSES [UNANIMOUS] Next: 2/4/2025 7:00 PM
MOVER: Satwinder Kaur, Council President
SECONDER: John Boyd, Councilmember
AYES: Kaur, Boyd, Fincher, Larimer, Michaud, Troutner
D. Targeted Residential Investment Program - Agreement for The
Suton - Authorize
Senior Planner, Sam Alcorn provided details on the Targeted Residential
Investment Program for The Suton apartment complex.
The Targeted Residential Investment Program provides an eight-year ad o
valorem property tax exemption for multifamily developments in Kent's
targeted residential areas. The Suton, a proposed 565-unit market-rate
apartment complex to be constructed in the Midway area, has applied for a a
tax exemption consistent with the program criteria that targets increasing the supply of residential dwelling units within targeted urban centers. a
Although the City's Economic and Community Development Director has o
confirmed the proposed project is eligible for the tax exemption, the Kent
City Code requires that the City Council approve the contract terms that N
apply to the tax exemption before a conditional "certificate of acceptance" of N
the tax exemption may issue. N
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Once a conditional certificate is issued, the developer will have three years to 4-
complete construction of the proposed project, unless a later extension is
sought in accordance with the Kent City Code. A final certificate of tax
exemption will be issued once construction is complete and a temporary or
permanent certificate of occupancy is issued by the City. The property tax
exemption will thereafter apply for eight years beginning on January 1 of the U
year immediately following the calendar year after issuance of the final
certificate of tax exemption.
MOTION: I move to authorize the Mayor to sign a contract with a
SUT 565, LP granting an 8-year Multifamily Tax Exemption for
The Suton apartment complex to be constructed in the Midway
area of Kent, subject to final terms and conditions acceptable
to the Economic & Community Development Director and City
Attorney.
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Page 3 of 6 Packet Pg. 6
4.A.A
Kent City Council - Committee of the Whole January 21, 2025
Committee of the Whole - Regular Meeting Kent, Washington
Minutes
......................................................................................................................................................................................................................................................................................................._...............................................................................................................................................................................................................
RESULT: MOTION PASSES [UNANIMOUS] Next: 1/21/2025 7:00 PM
MOVER: Marli Larimer, Councilmember
SECONDER: Zandria Michaud, Councilmember
AYES: Kaur, Boyd, Fincher, Larimer, Michaud, Troutner
E. 2025-2026 Recreation Guide Printing/Mailing Services —
Authorize
Haleigh Elliott, Marketing and Engagement Coordinator for the Parks
Department, provided an overview of the agreement for the printing and
mailing services for the 2025-2026 Recreation Guide.
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In January of 2025, Consolidated Press LLC was selected through a
competitive Request for Proposal process for the printing and mailing of the 0
Kent Parks Recreation Guides for the City of Kent Parks Department. The a
contract will cover the printing and mailing of the Recreation Guides for --
Spring/Summer, Fall, and Winter throughout the 2025 and 2026 calendar a
years for a total of $86,700 per year. o
Each quarter, the City of Kent Parks Department works with a vendor to print N
and mail a Recreation Guide to roughly 80,000 homes before seasonal N
registration opens. Approximately 78,000 guides are mailed to residences N
within the City of Kent and/or Kent School District boundaries; the remaining
2,000 guides are sent to homes in the surrounding cities of Kent who have 4-
participated in prior programs/events and have elected to receive a guide at
their home. An additional 2,500 Recreation Guides are printed to distribute at
City of Kent facilities (Kent Commons Community Center and Kent Senior
Activity Center).
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The Kent Parks Recreation Guides are the Parks Department's largest
marketing piece; the guides have consistently been the top marketing tool
utilized by the City of Kent Parks Department over the past few decades and a
are pivotal to the promotion and subsequent success of each quarter.
MOTION: I move to authorize the Mayor to sign the Goods and
Services Agreement with Consolidated Press, LLC., subject to
final terms and conditions acceptable to the Parks Director and
City Attorney.
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Page 4 of 6 Packet Pg. 7
4.A.A
Kent City Council - Committee of the Whole January 21, 2025
Committee of the Whole - Regular Meeting Kent, Washington
Minutes
......................................................................................................................................................................................................................................................................................................._...............................................................................................................................................................................................................
RESULT: MOTION PASSES [UNANIMOUS] Next: 2/4/2025 7:00 PM
MOVER: Zandria Michaud, Councilmember
SECONDER: Toni Troutner, Councilmember
AYES: Kaur, Boyd, Fincher, Larimer, Michaud, Troutner
F. Accept Funds From the Transportation Improvement Board for
the 132nd Avenue S.E. Pedestrian Improvement Phase 3
Project - Accept
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David Paine, Transportation Planner, provided information on grant from the
Transportation Improvement Board for the 132nd Avenue S.E. Pedestrian
Improvement Phase 3 Project. o
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The Transportation Improvement Board sent out a call for projects in 2024 0
with funds available through the Urban Active Transportation and Complete a
Streets Programs. The UATP program supports projects that improve �-
pedestrian and cyclist safety, mobility, and connectivity. Complete Streets a
projects are those that show practice of planning and building streets to 0
accommodate all users including pedestrians, access to transit, cyclists, and
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motorists of all ages and abilities. N
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The City received an award of $490,000 in UATP funds for the 132nd Avenue N
S.E. Pedestrian Improvement Phase 3 project. The project would construct a
pedestrian path on the west side of the street from S.E. 276th Street to S.E. 4-
278th Place, including curb ramps and pavement improvements. The project
would also connect two existing sidewalk segments and connects into
projects previously funded in part by TIB. The project is estimated at
$613,000.
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MOTION: : I move to accept grant funds in the amount of
$490,000 from the Transportation Improvement Board for the
132nd Avenue S.E. Pedestrian Improvement Phase 3 project,
amend the budget, and authorize the expenditure of funds, and a
authorize the Mayor to sign all necessary agreements and other
documents, subject to final terms and conditions acceptable to
the Public Works Director and City Attorney.
RESULT: MOTION PASSES [UNANIMOUS] Next: 2/4/2025 7:00 PM
MOVER: Brenda Fincher, Councilmember
SECONDER: Toni Troutner, Councilmember
AYES: Kaur, Boyd, Fincher, Larimer, Michaud, Troutner
G. Accept Funds from the Transportation Improvement Board for
the 83rd Avenue South Sidewalk Project - Accept
Transportation Planner, David Paine provided information on the grant from
........................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................
Page 5 of 6 Packet Pg. 8
4.A.A
Kent City Council - Committee of the Whole January 21, 2025
Committee of the Whole - Regular Meeting Kent, Washington
Minutes
the Transportation Improvement Board for the 83rd Avenue South Sidewalk
Project.
The Transportation Improvement Board sent out a call for projects in 2024
with funds available through the Urban Active Transportation and Complete
Streets Programs. The UATP program supports projects that improve
pedestrian and cyclist safety, mobility, and connectivity. Complete Streets
projects are those that show practice of planning and building streets to
accommodate all users including pedestrians, access to transit, cyclists, and
motorists of all ages and abilities. The Complete Streets Program is
supported with funding from Washington's Climate Commitment Act.
The City received an award of $625,000 of Complete Streets funds for the 0
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83rd Avenue South project. The project would construct curb ramps and a o
gap in sidewalk along the west side from South 224th Street to a
approximately 700 feet south of S. 224th Street. The project is estimated at a
$781,400. r-
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MOTION: I move to accept grant funds in the amount of o
$625,000 from the Transportation Improvement Board for the
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83rd Avenue South Sidewalk project, amend the budget, and N
authorize the expenditure of funds, and authorize the Mayor to N
sign all necessary agreements and other documents, subject to N
final terms and conditions acceptable to the Public Works r-
Director and City Attorney. 4-
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RESULT: MOTION PASSES [UNANIMOUS] Next: 2/4/2025 7:00 PM 2
MOVER: Brenda Fincher, Councilmember
SECONDER: Toni Troutner, Councilmember
AYES: Kaur, Boyd, Fincher, Larimer, Michaud, Troutner
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5. ADJOURNMENT a
Council President Kaur adjourned the meeting. 2
Meeting ended at 4:22 p.m.
Ki,4 i ley A. KoTno-to-
City Clerk
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Page 6 of 6 Packet Pg. 9
4.B
FINANCE DEPARTMENT
Paula Painter, CPA
220 Fourth Avenue South
\117KENT Kent, WA 98032
WASHINGTON 253-856-5264
DATE: February 4, 2025
TO: Kent City Council - Committee of the Whole
SUBJECT: Payment of Bills - Approve
MOTION: I move to approve the payment of bills.
SUMMARY:
BUDGET IMPACT:
Packet Pg. 10
4.0
HUMAN RESOURCES DEPARTMENT
Kari Endicott - Human Resources Director
220 Fourth Avenue South
KENT Kent, WA 98032
WASHINGTON 253-856-5270
DATE: February 4, 2025
TO: Kent City Council - Committee of the Whole
SUBJECT: INFO ONLY: 2025 Liability Insurance Renewals
SUMMARY:
Liability
The same insurance market volatility we endured in 2022, 2023, and 2024
continues in 2025. For 2025, the City's liability premiums increased by 16% over
last year, increasing from $2,150,368 to $2,486,645. Overall in the market, losses
due to jury verdicts and lawsuit settlements continue to escalate in both size and
volume, contributing to the significant increase in premium costs. The City's Self-
Insured Retention ("SIR") (i.e., a deductible) for General Liability and Law
Enforcement Liability has increased from $1.625M to $2.5M, per occurrence. The
Self-Insured Retention for automobile, public officials, and employment practices
liability remains at $1.625M. The City's total coverage remains at $25M, which is
significant, considering ongoing market developments and municipal experience.
Workers' Compensation
There was a worker's compensation premium increase of ;z�2.4%, or $4,162. The
City's SIR remains the same: police claims at $1M and all other claims at $600K. All
other aspects of the policy remain the same.
Cyber
This policy continues to provide some favorable news in contrast to other recent
renewals. There was a premium decrease of z�4.8%, or $4,162.
BUDGET IMPACTS: Both the Liability Fund and the Workers' Compensation Fund
are budgeted to receive sufficient internal funding to cover the increased costs in
2025. Risk Management and Finance continue to collaborate to ensure both funds
are properly funded for the 2025 fiscal year budget by working with the City's
actuary.
SUPPORTS STRATEGIC PLAN GOAL:
Sustainable Services - Providing quality services through responsible financial management,
economic growth, and partnerships.
ATTACHMENTS:
Packet Pg. 11
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1. Renewal Proposals for Liability, Workers' Compensation and Cyber (PDF)
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Liability Insurance Program Structure: Expiring & Renewal .......................................................................................................................................... 6
Liability Insurance Program: Participating Carriers Financial Ratings.......................................................................................................................... 7
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NYRegulation 194................................................................................................................................................................................................ 13 0
Privacy.................................................................................................................................................................................................................. 13
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ClaimsReporting:................................................................................................................................................................................................. 14 2�
Claims Made Policy: 14
Changesand Developments ................................................................................................................................................................................ 15 J
Certificates/ Evidence of Insurance .................................................................................................................................................................... 16 0
FloodDisclosure .......................................................................................................................................................................................................... 17 y
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OptionalCoverages ..................................................................................................................................................................................................... 18 0
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Glossaryof Insurance Terms....................................................................................................................................................................................... 19
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Request to Bind Coverage........................................................................................................................................................................................... 20 0
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Kevin A. Miller
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Assistant Vice President Account Executive
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NAMED INSURED DISCLOSURE 04
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• Name Insured(s)should match State of Incorporation filing. Inform Alliant if there is a difference or change O
• The First Named Insured policy status granted includes certain rights and responsibilities.These responsibilities do not apply to other Named Insureds on the policy. Some
examples for First Named Insured status include;(1)being designated to act on behalf of all insureds for making policy changes,(2)receiving of correspondence,(3)distributing
claim proceeds,and(4)making premium payments
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• Are ALL entities listed as named insureds?Coverage is not automatically afforded to all entities unless specifically named.Confirm with your producer and service team that
all entities to be protected are on the correct policy.Not all entities may be listed on all policies based on coverage line. +,
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• Additional named insured is(1)A person or organization,other than the first named insured,identified as an insured in the policy declarations or an addendum to the policy
declarations.(2)A person or organization added to a policy after the policy is written with the status of named insured.This entity would have the same rights and responsibilities Q
as an entity named as an insured in the policy declarations(other than those rights and responsibilities reserved to the first named insured). 0
• Applies to Professional Liability,Pollution Liability,Directors&Officers Liability, Employment Practices Liability,Fiduciary Liability policies(this list not all inclusive).Check your j
Policy language for applicability.These policies provide protection to the Named Insured for claims made against it alleging a covered wrongful act. y
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Total Cost* Ln
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$2,500,000 GULEL SIR
$1,625,000 SIR(All Lines)
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Liability Program $ 2,150,368 $ 2,486,645
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TOTAL $ 2,150,368 $ 2,486,645 0
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2 Garrison Creek Stormwater Detention Dam WAOO577 L
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4 Muth Stormwater Pond WAO1883
5 Springwood Stormwater Detention Dam WAO1668
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Allied World Assurance Company 3M p/o 5M x Financial Size Category: XV A+ (Strong) M
(U.S.) Inc 5M (Greater than or Equal to$2 Billion) as of May 31, 2024 Non-Admitted c
as of May 9, 2024 N
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Obsidian Specialty Insurance 2M p/o 5M x Financial Size Category: N/A Non-Admitted
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Bowhead: Homesite Insurance Financial Size Category: XV =
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as of October 24, 2024 J L
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Upland Specialty Insurance Company 2.5M x 12.5M ($100 Million to Less than $250 N/A Non-Admitted c
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Core: StarStone Specialty Insurance Financial Size Category: XIII
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Allied World Assurance Company
5M x 20M Same as above Same as above
(U.S.) Inc. Same as above
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Liability Coverage Z
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Present Coverage Proposed Coverage
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Policy/Coverage Term January 1, 2024 to January 1, 2025 January 1, 2025 to January 1, 2026 .0
Excess Liability Coverages Including Each Occurrence/Wrongful Act/Accident for Each Occurrence/Wrongful Act/Accident for v
General Liability, Automobile Liability, Law General Liability, Automobile Liability, Law M
Enforcement Liability, Public Officials and Enforcement Liability, Public Officials and c
Employment Practices Liability, Stop Gap Employment Practices Liability N
(Employer's Liability)
Policy Form Occurrence Occurrence E
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Limit of Liability $25,000,000 Occurrence $25,000,000 Occurrence v
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$25,000,000 Aggregate, where applicable $25,000,000 Aggregate, where applicable Y
Self-Insured Retention All Coverages, $1,625,000 Self-Insured Retention $2,500,000 - General Liability o
Any One Occurrence or Wrongful Act $2,500,000 - Law Enforcement Liability
$1,625,000 -Automobile Liability, Public Officials
and Employment Practices Liability
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Safety National Forms Public Entity Excess Retained Limits Liability Public Entity Excess Retained Limits Liability °
Insurance Policy Insurance Policy
• Washington —Amendatory Endorsement a Washington —Amendatory Endorsement o
• Washington Disclosure Notice for"Large 0 Washington Disclosure Notice for"Large 0
Commercial Account" Commercial Account" a
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Privacy Statement 8 Privacy Statement
• U.S. Treasury Department's Office of Foreign e U.S. Treasury Department's Office of Foreign =
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Fraud Statement 0 Fraud Statement E
• Additional Insured—Scheduled Contracts 0 Additional Insured—Scheduled Contracts
• Clash Coverage a Clash Coverage a
Alliant Insurance Services, Inc. I www.alliant.com CA License No.OC36861 Page 8
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Present Coverage Proposed Coverage Z
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• Employee Benefits Liability Coverage a Employee Benefits Liability Coverage O
• Primary and Noncontributory—Other a Primary and Noncontributory—Other z
Insurance Condition (GL/AL only) Insurance Condition (GL/AL only) ,n
Safety National Forms -Continued Scheduled Dams Scheduled Dams
• Waiver of Subrogation (GL/AL only) a Waiver of Subrogation (GL) L
• Cap on Losses from Certified Acts of 0 Cap on Losses from Certified Acts of
Terrorism Terrorism (if TRIA accepted) v
Disclosure Pursuant to Terrorism Risk 0 Disclosure Pursuant to Terrorism Risk c
Insurance Act Insurance Act(if TRIA accepted) c
• Stop Gap— Employers Liability Coverage Exclusion of Certified Acts of Terrorism (if o
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Common Policy Change Exclusion - Perfluoroalkyl and Polyfluoroalkyl Q.
Substances (PFAS) o
Key Endorsement& Exclusions v
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(including but not limited to) Y
Communicable Disease/Infectious Agents Excluded from $5M x$5M and upward Excluded from $5M x$5M and upward o
Perfluoroalkyl and Polyfluoroalkyl Excluded XS of$5M Excluded
Substances (PFAS)
Failure to Supply Public Utilities Post Not Excluded Not Excluded
Sudden/Accidental Physical Damage o
Subsidence Excluded Excluded y
Dams Excluded, except if endorsed Excluded, except if endorsed c
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Loss of data, personal records, trade Excluded Excluded a
secrets, health information a
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Aircraft, unmanned aircraft, airport, airfields, Excluded except for access roads to parking Excluded except for access roads to parking
runways, hangars, buildings or other lots/garages lots/garages
properties
Any criminal, fraudulent, dishonest act by Excluded Excluded
insured E
Electromagnetic fields related claims Excluded Excluded
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Present Coverage Proposed Coverage Z
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Claims/suits arising out of eminent domain, Excluded Excluded O
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condemnation, inverse condemnation, etc. z
Costs, fines, penalties or expenses arising Excluded Excluded LO
from complaint or action from federal, state
or local gov't. regulatory agency ..
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Claims or suits arising out of hospital, Excluded Excluded
emergency room, convalescent home, v
nursing home or other healthcare facility
Incidental Medical Services, as defined in Not Excluded from GL only Not Excluded from GL only c
policy
Insured vs. Insured Not Excluded from EPL Not Excluded from EPL c
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Punitive Damages Excluded Excluded E
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Total Pollution Exclusion except for Hostile Not Excluded Not Excluded v
Fire Exception ;n
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Moonlighting (Written approval only) Not Excluded Not Excluded
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TCPA, CAN-SPAM, FCRA and FACTA acts Excluded Excluded
or omissions violations
War, warlike action, insurrection Excluded Excluded
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Mace, Tear Gas, Pepper Spray or Similar Not Excluded from LEL only Not Excluded from LEL only 0
used in Law Enforcement Activities y
Nuclear Energy Liability Excluded Excluded y
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Fungi/Bacteria/Silica/Asbestos/Lead Excluded Excluded 0
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ERISA Coverage Excluded Excluded a
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Amended Definition of Bodily Injury to Not Excluded Not Excluded
include Mental Anguish, Shock, etc. m
Use of Watercraft— Use of onshore only; Not Excluded Not Excluded
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less than 26'for non-owned; liability
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assumed under an insured contract
Medical Expense Coverage Excluded Excluded
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Present Coverage Proposed Coverage Z
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Cyber Coverage Excluded Excluded O
Organic Pathogens Excluded from $2.5Mx$10M and upward Excluded from $2.5Mx$10M and upward Z
Biometric Identifiers, Biometric Info and Data Excluded from $5Mx$5M and upward Excluded from $5Mx$5M and upward e
Privacy
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Other Terms/Conditions
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Modified SIR—Periodic Claim Reporting Quarterly Reporting Requirement Quarterly Reporting Requirement
Flat Annual Premium— Non-Audit ✓ ✓ ra
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60 Day Notice of Cancellation; except 10 ✓ ✓ Z a
Days for Non-Payment
Risk Management Subsidy $10,000 $10,000 0.
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Total Cost $2,150,368 $2,486,645
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Binding Conditions No Longer Applicable A written request to bind coverage
• Elect/ Reject TRIA
• All Surplus Lines Taxes/Fees are Fully Earned ,o
• Receipt of signed terrorism form prior to
binding. c
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See Disclaimer Page for Important Notices and Acknowledgment L a
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Disclosures o
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This proposal of insurance is provided as a matter of convenience and information only. All information included in this proposal, including but not Z
limited to personal and real property values, locations, operations, products, data, automobile schedules,financial data and loss experience, is based
on facts and representations supplied to Alliant Insurance Services, Inc. by you.This proposal does not reflect any independent study or investigation Ln
by Alliant Insurance Services, Inc. or its agents and employees.
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Please be advised that this proposal is also expressly conditioned on there being no material change in the risk between the date of this proposal CD
and the inception date of the proposed policy (including the occurrence of any claim or notice of circumstances that may give rise to a claim under
any policy which the policy being proposed is a renewal or replacement). In the event of such change of risk, the insurer may, at its sole discretion,
modify, or withdraw this proposal, whether or not this offer has already been accepted.
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This proposal is not confirmation of insurance and does not add to, extend, amend, change, or alter any coverage in any actual policy of insurance
you may have. All existing policy terms, conditions, exclusions, and limitations apply. For specific information regarding your insurance coverage, vfdi
please refer to the policy itself. Alliant Insurance Services, Inc. will not be liable for any claims arising from or related to information included in or
omitted from this proposal of insurance. Q'
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Alliant embraces a policy of transparency with respect to its compensation from insurance transactions. Details on our compensation policy, including v
the types of income that Alliant may earn on a placement, are available on our website at www.alliant.com. For a co of our policy or for an inquiries
Yp Y p copy p Y Y� q
regarding compensation issues pertaining to your account you may also contact us at: Alliant Insurance Services, Inc., Attention: General Counsel,
701 B Street, 6th Floor, San Diego, CA 92101. 0
Analyzing insurers' over-all performance and financial strength is a task that requires specialized skills and in-depth technical understanding of all r
aspects of insurance company finances and operations. Insurance brokerages such as Alliant Insurance typically rely upon rating agencies for this
type of market analysis. Both A.M. Best and Standard and Poor's have been industry leaders in this area for many decades, utilizing a combination
of quantitative and qualitative analysis of the information available in formulating their ratings. o
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A.M. Best has an extensive database of nearly 6,000 Life/Health, Property Casualty and International companies. You can visit them at
www.ambest.com. For additional information regarding insurer financial strength ratings visit Standard and Poor's website at 0
www.standardandpoors.com. 0
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Our goal is to procure insurance for you with underwriters possessing the financial strength to perform. Alliant does not, however, guarantee the 3
solvency of any underwriters with which insurance or reinsurance is placed and maintains no responsibility for any loss or damage arising from the
financial failure or insolvency of any insurer. We encourage you to review the publicly available information collected to enable you to make an
informed decision to accept or reject a particular underwriter. To learn more about companies doing business in your state, visit the Department of
Insurance website for that state.
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NY Regulation 194 Z
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Alliant Insurance Services, Inc. is an insurance producer licensed by the State of New York. Insurance producers are authorized by their license to 0
confer with insurance purchasers about the benefits, terms and conditions of insurance contracts; to offer advice concerning the substantive benefits Z
of particular insurance contracts; to sell insurance; and to obtain insurance for purchasers. The role of the producer in any particular transaction
Ln
typically involves one or more of these activities. N
Compensation will be paid to the producer, based on the insurance contract the producer sells. Depending on the insurer(s)and insurance contract(s) ti-
the purchaser selects, compensation will be paid by the insurer(s) selling the insurance contract or by another third party. Such compensation may .0
vary depending on a number of factors, including the insurance contract(s) and the insurer(s) the purchaser selects. In some cases, other factors v
such as the volume of business a producer provides to an insurer or the profitability of insurance contracts a producer provides to an insurer also
may affect compensation. M
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The insurance purchaser may obtain information about compensation expected to be received by the producer based in whole or in part on the sale Z'
of insurance to the purchaser, and (if applicable)compensation expected to be received based in whole or in part on any alternative quotes presented
to the purchaser by the producer, by requesting such information from the producer. Q.
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At Alliant, one of our top priorities is making sure that the information we have about you is protected and secure. We value our relationship with you Y
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and work hard to preserve your privacy and ensure that your preferences are honored. At the same time, the very nature of our relationship may 0
result in Alliant's collecting or sharing certain types of information about you in order to provide the products and services you expect from us. Please
take the time to read our full Privacy Policy posted at www.alliant.com, and contact your Alliant service team should you have any questions.
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Other Disclosures / Disclaimers
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FATCA:
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The Foreign Account Tax Compliance Act (FATCA) requires the notification of certain financial accounts to the United States Internal Revenue a
Service. Alliant does not provide tax advice so please contact your tax consultant for your obligation regarding FATCA. a
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Alliant Insurance Services, Inc. I www.alliant.com CA License No.OC36861 Page 13
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NRRA: LL
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The Non-Admitted and Reinsurance Reform Act (NRRA) went into effect on July 21, 2011. Accordingly, surplus lines tax rates and regulations are
subject to change which could result in an increase or decrease of the total surplus lines taxes and/or fees owed on this placement. If a change is Ln
required, we will promptly notify you. Any additional taxes and/or fees must be promptly remitted to Alliant Insurance Services, Inc.
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Guarantee Funds >,
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Established by law in every state, guaranty funds are maintained by a state's insurance commissioner to protect policyholders in the event that an
insurer becomes insolvent or is unable to meet its financial obligations. If your insurance carrier is identified as 'Non-Admitted', your policy is not M
protected by your state's Guaranty Fund. c
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Claims Reporting: Q
Your policy will come with specific claim reporting requirements. Please make sure you understand these obligations. Contact your Alliant Service E
Team with any questions. U
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Claims Made Policy: o
This claims-made policy contains a requirement stating that this policy applies only to any claim first made against the Insured and reported to the
insurer during the policy period or applicable extended reporting period. Claims must be submitted to the insurer during the policy period, or applicable
extended reporting period, as required pursuant to the Claims/Loss Notification Clause within the policy in order for coverage to apply. Late reporting
or failure to report pursuant to the policy's requirements could result in a disclaimer of coverage by the insurer. fd
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Any Employment Practices Liability(EPL)or Directors&Officers(D&O)with EPL coverage must give notice to the insurer of any charges/complaints y
brought by any state / federal agency (i.e. EEOC and similar proceedings) involving an employee. To preserve your rights under the policy, it is E
important that timely notice be given to the insurer, whether or not a right to sue letter has been issued. 0
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Changes and Developments Z
It is important that we be advised of any changes in your operations, which may have a bearing on the validity and/or adequacy of your insurance.
The types of changes that concern us include, but are not limited to, those listed below: Ln
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■ Changes in any operations such as expansion to another state, new products, or new applications of existing products. a-
■ Travel to any state not previously disclosed.
■ Permanent operations outside the United States, Canada or Puerto Rico. v
■ Mergers and/or acquisition of new companies and any change in business ownership, including percentages.
■ Any newly assumed contractual liability, granting of indemnities or hold harmless agreements. _
■ Any changes in existing premises including vacancy, whether temporary or permanent, alterations, demolition, etc. Also, any new premises
either purchased, constructed or occupied
■ Circumstances which may require an increased liability insurance limit. Q.
■ Any changes in fire or theft protection such as the installation of or disconnection of sprinkler systems, burglar alarms, etc. This includes any E
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alterations to the system. v
■ Immediate notification of any changes to a scheduled of equipment, property, vehicles, electronic data processing, etc.
■ Property of yours that is in transit, unless previously discussed and/or currently insured. L
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Other Disclosures / Disclaimers - Continued Z
0
Certificates / Evidence of Insurance Z
A Certificate or Evidence is issued as a matter of information only and confers no rights upon the certificate holder. The certificate does not
affirmatively or negatively amend, extend or alter the coverage afforded by a policy, nor does it constitute a contract between the issuing insurer(s), N
authorized representative, producer or recipient.
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You may have signed contracts, leases or other agreements requiring you to provide this evidence. In those agreements, you may assume v
obligations and/or liability for others (Indemnification, Hold Harmless) and some of the obligations that are not covered by insurance. We
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recommend that you and your legal counsel review these documents. M
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In addition to providing a Certificate or Evident of Insurance, you may be required to name your landlord, client or customer on your policy as a loss N
payee on property insurance or as an additional insured on liability insurance. This is only possible with permission of the insurance company, Q.
added by endorsement and, in some cases, an additional premium. E
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By naming the certificate holder as additional insured, there are consequences to your risks and insurance policy including: L
■ Your policy limits are now shared with other entities; their claims involvement may reduce or exhaust your aggregate limit. L
■ Your policy may provide higher limits than required by contract; your full limits can be exposed to the additional insured. 0
■ There may be conflicts in defense when your insurer has to defend both you and the additional insured.
■ An additional insured endorsement will most likely not provide notification of cancellation. Some insurance companies use a "blanket"
additional insured endorsement that provides coverage automatically when it is required in a written contract. Most insurance companies do
not want to be notified of all additional insureds when there is a blanket endorsement on the policy. If a notice of cancellation is required for
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the additional insured party, you must notify us immediately and we will request an endorsement from your insurance company. There may
be an additional premium for adding a notice of cancellation endorsement for an additional insured.
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See Request to Bind Coverage page for acknowledgement of all disclaimers and disclosures. a
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Flood Disclosure 0
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Flooding is a serious threat to both personal and commercial clients. Flooding can happen anywhere, not just zone referred to as high-risk areas ?
(Special Flood Hazard Area). Your Alliant team is ready to explain how it works and the associated costs. Ln
Basic Facts N
Congress created the NFIP in 1968 in response to the rising cost of taxpayer-funded disaster relief for flood victims and the increasing amount of
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damage caused by floods. The NFIP makes federally backed flood insurance available in communities that agree to adopt and enforce floodplain CD
management ordinances to reduce future flood damage. The NFIP is self-supporting for the average historical loss year. This means that unless
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there is a widespread disaster, operating expenses and flood insurance claims are financed through premiums collected.
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Commercial buildings or residential dwellings owned by commercial entities are considered commercial property. All others are residential dwellings o
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The FEMA Summary for Commercial Property and FEMA Standard Summary of Coverage provides information on the following:
• Types of Flood Insurance Coverage E
• What is a Flood- "a General and temporary condition of partial or complete inundation of two or more acres of normally dry land area"... �j
• Deductibles-various options to meet your financial needs L
• What is Covered and What is Not
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• The valuation of the Property-Actual Cash Value or Replacement Cost °
Additional Information
• Flood Zones
o https://www.fema.gov/flood-zones fd
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• Excess Flood Insurance (contact your Producer for additional information) o
o Increased limits over the maximum flood limit provided by NFIP y
FEMA Glossary of Flood Terms c
https://www.fema.gov/national-flood-insurance-program/definitions c
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Please indicate your selection:
❑ I would like to receive a flood quote
❑ I do NOT wish to purchased flood insurance
Signature: Date:
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Name Printed/Typed: E
Company Name:
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Optional Coverages 0
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The following represents a list of insurance coverages that may not be included in this proposal but are optional and may be available with further z_
underwriting information. This list is not inclusive of all coverages and if you have questions contact your Alliant representative. If you would like
addition quotes please check Yes/No across from the coverage below, sign and return. e
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Target Coverages L-
Yes No V
CRIME _
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Employee Dishonesty ❑ ❑ c
Computer Fraud ❑ ❑ N
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Social Engineering ❑ ❑ Q.
Increased Limits ❑ ❑ E
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CYBER RISK ❑ ❑ U
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FLOODINSURANCE ❑ ❑
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MANAGEMENT LIABILITY 0
Directors &Officers Liability ❑ ❑
Employment Practices Liability ❑ ❑
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Fiduciary Liability ❑ ❑
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ElReject All 0.
Selecting the "Reject All or Accept All"option will override any selections you have made above 0
ElAccept All for Consideration a
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Signature of Authorized Insurance Representative Date
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Title
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Printed /Typed Name
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Optional Coverages - Continued o
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Other Coverage Options Z
Note some of these coverages may be included with limitations or insured elsewhere. This is a partial listing as you may have additional risks not N
contemplated here which are unique to your organization.
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• Business Income/Extra Expense 0 Non-Owned & Hired Automobile Liability
• Earthquake 0 Pollution Liability v
• Employed Lawyers 0 Owned/Non-Owned Aircraft
• Employee Benefits Liability 0 Owned Watercraft =
• Equipment Breakdown 0 Professional Liability °
• Food Borne Illness 0 Property in Transit N
• Foreign Insurance 0 Property of Others (Clients, Employees, Other) Q.
• Garagekeepers Liability 0 Special Events Liability E
• Hired Auto Physical Damage 0 Spoilage v
• Kidnap & Ransom 0 Student Accident y
• Law Enforcement Liability 0 Volunteer Accidental Death & Dismemberment(AD&D) Y
• Media and Publishers Liability 0 Workers Compensation & Employers Liability o
• Network Security/ Privacy Liability and Internet Media Liability 0 Workplace Violence
Glossary of Insurance Terms
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http://insurancecommunityuniversity.com/university-resources/insurance-glossary-free c
https://consumers.ambest.com/content.aspx?rec=261613 c
http://www.irmi.com/online/insurance-glossary/default.aspx a
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Request to Bind Coverage }
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City of Kent o
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We have reviewed the proposal and agree to the terms and conditions of the coverages presented. We are requesting coverage to be bound as outlined
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by coverage line below:
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Coverage • Coverage • L
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Liability Program -$25,000,000
❑ 0
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Did you know that Alliant works with premium financing companies?Are you interested in financing your annual premium? E
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please provide us with a financin• quote. No, we . • not wish to finance our premium. y
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❑ ❑ Y
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This Authorization to Bind Coverage also acknowledges receipt and review of all disclaimers and disclosures, including exposures used to develop 2�
insurance terms, contained within this proposal.
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Signature of Authorized Insured Representative Date o
Title 0-
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Printed /Typed Name (D
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This proposal does not constitute a binder of insurance. Binding is subject to the final carrier approval.The actual terms and conditions of the
policy will prevail.
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4.D
INFORMATION TECHNOLOGY DEPARTMENT
Mike Carrington
220 Fourth Avenue South
KENT Kent, WA 98032-5895
WAS"'N G T O N 253-856-4600
DATE: February 4, 2025
TO: Kent City Council - Committee of the Whole
SUBJECT: CDW Government LLC - Cooperative Purchase Agreement —
Authorize
MOTION: I move to authorize the IT Director to purchase through the
cooperative purchasing agreement the state Department of Enterprise
Services has with CDW Government LLC, if those purchases are within the
City's established budgets and made during the term of the state contract,
which is in effect through April 24, 2027, or any later contract extension
the state may authorize.
SUMMARY: The City has entered into an agreement with the state Department of
Enterprise Services ("DES"), which allows the City to purchase through contracts
the state publicly bids and enters into with various vendors. The state has, in turn,
entered into an agreement with a national purchasing cooperative, the NASPO
Cooperative Purchasing Organization, LLC, which is a non-profit subsidiary of the
National Association of State Procurement Officials ("NASPO"). NASPO provides
states, local governments, public educational entities and other agencies with
purchasing power that allows them to leverage their spending through a single
solicitation that obtains best value pricing and superior contract terms than the
agencies could do on their own.
Purchases made through a purchasing cooperative are exempt from competitive
bidding requirements pursuant to KCC 3.70.1 10(F).
One contract that NASPO has entered into, and which the state DES has elected to
participate in, is a contract with CDW Government LLC. This contract is currently in
effect through April 24, 2027. Should the City purchase from CDW Government LLC
or one of its fulfillment partners under the purchasing cooperative's contract, the
terms and conditions of that master contract will apply. A copy of the state's
participating addendum and the master contract are attached.
The City has a current need to renew the contract for multi-factor authentication to
ensure we are fully protecting the City's users and infrastructure as well as a
requirement to stay complaint on our security controls. The cost for renewal is
estimated to be $33,000 plus tax, which is covered within our maintenance and
subscription budget. In addition to this, IT staff seeks approval to purchase
Packet Pg. 34
4.D
additional products through CDW Government LLC, so long as future purchases are
within established budgets and made during the term of the contract.
BUDGET IMPACT:
Description Cost Impact
Yearly Reoccurring Cost - $33,000.00 est
SUPPORTS STRATEGIC PLAN GOAL:
Innovative Government - Delivering outstanding customer service, developing leaders, and
fostering innovation.
Evolving Infrastructure - Connecting people and places through strategic investments in physical
and technological infrastructure.
ATTACHMENTS:
1. CDWG - Cisco Duo Renewal Quote 690141 (PDF)
2. CDWG - NASPO Master Agreement (PDF)
3. CDWG - WA DES Participating Addendum (PDF)
4. City of Kent Contract with WA DES (PDF)
Packet Pg. 35
4.D.a
PRICE QU
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200 N Milwaukee Ave Project: Duo Renewal 1 YR Sub1133741
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Phone: (312)705-9060 E
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220 4th Ave S Email: dannmoo@cdwg.com
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CUSTOMER IS RESPONSIBLE TO PAY FREIGHT CHARGES.ESTIMATED OR ACTUAL FREIGHT CHARGES ARE NOT INCLUDED IN QUOTES(UNLESS SPECIFICALLY
STATED).THS QUOTE EXCLUDES SALES TAX(UNLESS SPECIFICALLY STATED). SALES AND SERVICES ARE GOVERNED BY THE SIGNED AGREEMENT YOU MAY
HAVE WITH CDW. IF NO SEPARATE AGREEMENT IS EFFECTIVE,THE TERMS AND CONDITIONS OF SALES AND SERVICES ARE LIMITED TO THOSE CONTAINED IN
THE"TERMS&CONDITIONS'LINK AT https://www.cdwg.com/content/cdwg/en/terms-conditions/sales-and-service-projects.html. BY ORDERING OR
OF PRODUCTS OR BY ENGAGING CDW TO PERFORM OR PROCURE SERVICES,YOU AGREE TO BE BOUND BY AND ACCEPT THOSE TERMS Packet Pg. 36
ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS IN ANY FORM DELIVERED BY CUSTOMER ARE HEREBY DEEMED TO BE MATERIAL
NOTICE OF OBJECTION TO THEM AND REJECTION OF THEM IS HEREBY GIVEN. THIS DOCUMENT IS CONFIDENTIAL.
4.D.b
Request for Proposal Arizona Department of Administration
Solicitation No. BPM002338 State Procurement Office
Description: 100 N 15th Ave.,Suite 402
Software Value-Added Reseller Phoenix,AZs5007
m
N
L
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Attachment 1
Offer and Acceptance Form a'
I
SUBMISSION OF OFFER:Undersigned hereby offers and agrees to provide SOFTWARE VALUE-ADDED RESELLER SERVICES in O
compliance with the Solicitation indicated above and our Offer indicated by the latest dated version below:
N
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Initial 1. 11/17/2020 X Q
Offer. Date initialVNERME W
O
2. 2/24/2022 x� 3. X X 4. X X
L
Revised date#1 initial date#1 initial date#1 initial M
Offers: d
5 X X g X X 7 X X >
date#4 initial date#5 initial date#6 initial W
M
L
Best and 8. 1 X 1/14/2022 X / "''" "" O
Final Offer: Date initial .0
O
V
CDW Government LLC X J
J
Offeror company name Signature of person authorized to sign Offer
C
d
23o N.Milwaukee Ave. David Hutchins,VP Strategic Programs j_
c
Address Printed name and title L
>d
Vernon Hills,IL 6006i Cailee Filkin,Manager Proposals 0
City I State I ZIP Contact name and title
V
36-4230110 Cailee.filkin@cdwg.com 3125472516
0
L0
Federal tax identifier(EIN or SSN) Contact Email Address Contact phone number C14
CERTIFICATION: By signature in the above,Offeror certifies that it:
1. will not discriminate against any employee or applicant for employment in violation of Federal Executive Order 11246,[Arizona]State O
Executive Order 2009-9 or A.R.S.§§41-1461 through 1465; E
2. has not given,offered to give,nor intends to give at any time hereafter any economic opportunity,future employment,gift,loan,gratuity,
special discount,trip,favor,or service to a public servant in connection with the submitted offer.Failure to provide a valid signature
affirming the stipulations required by this clause will result in rejection of the Offer.Signing the Offer with a false statement will void the Q
Offer,any resulting contract,and may be subject to legal penalties under law; r
3. complies with A.R.S.§41-3532 when offering electronics or information technology products,services,or maintenance;and to
O
4. is not debarred from,or otherwise prohibited from participating in any contract awarded by federal,state,or local government. 2
O
IL
ACCEPTANCE OF OFFER:State hereby accepts the initial Offer,Revised Offer,or Best and Final Offer identified by the latest date and U)
number at the top of this form(the Accepted Offer).Offeror is now bound(as Contractor)to carry out the Work under the attached Contract, a
of which the Accepted Offer forms a part.Contractor is cautioned not to commence any billable work or to provide any material or perform Z
any service under the Contract until Contractor receives the applicable Order or written notice to proceed from Procurement Officer. '
State's Contract No.is: CTR060021 The effective date of the Contract is:4/25/2022
Contract a arded22_ V
C
John Red Horse
P urement Officer Signature Procurement Officer Printed Name z
t�
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a
PART 3 of the Solicitation Documents SECTION 3-B: Offer Forms
Template version 6.0(18-NOV-2019) Page 2 of 14
A v a i l a b l e o n l i n e a t A P P . A Z . g o v
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I 4.D.b I
Request for Proposal
Solicitation No. BPM002338
Description:
Software Value -Added Reseller (VAR)
Part 1:
Solicitation Summary
1.0 What the State Is Soliciting
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
The Arizona Department of Administration, State Procurement Office division (the State),
as authorized under A.R.S.§ 41-2501 is seeking to establish one or more "statewide"
contracts to provide Software Value -Added Reseller services.
Additionally, this solicitation will be conducted in partnership with the NASPO ValuePoint
Cooperation Purchasing Program (NASPO ValuePoint). As such, the Master Agreements
awarded through this solicitation may be utilized by states and other political subdivisions
throughout the United States.
The State anticipates awarding multiple Contracts to begin providing services by a target
date of April 8, 2021.
The Special Terms and Conditions provide a more detailed definition of Eligible
Agencies.
List of all state agencies is available at: https://azdirect.az.gov/agencies
Active Co -Op Members List is available at: https://spo.az.gov/procurement-
services/cooperative-procurement/state-purchasing-cooperative .
Persons With Disabilities
Persons with a disability may request a reasonable accommodation, such as a sign language
interpreter, by contacting the Solicitation contact person. Requests shall be made as early as
possible to allow time to arrange for the accommodation.
OFFERORS SHOULD READ THE ENTIRE SOLICITATION CAREFULLY.
2.0 What's in the Solicitation
Part 1
Section 1: Solicitation
Part _1_BPM002338_OPEN _FIRST _Software VAR.PDF (or
Summary
as amended)
Part 2
Section 2-A: Scope of Work
Part _2_BPM002338_RFP_Software VAR. PDF (or as
Section 2-B: Pricing
amended)
Document
Section 2-C: Special Terms
and Conditions
Section 2-D: Uniform Terms
and Conditions
Part 3
Section 3-A: Instructions to
Offerors
Template version 6.0 (28-JAN-2020)
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I 4.D.b I
Request for Proposal
Solicitation No. BPM002338
Description:
Software Value -Added Reseller (VAR)
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
Section 3-13: Offer forms Part _3_BPM002338_Offer_Forms—Software VAR.DOC (or as
amended)
3.0 How and When Proposals Are Due
Proposals will only be accepted online in "The State's e-Procurement System" at
https://app.az.gov until the "Bid/Offer Due Date" indicated in "The State's e-
Procurement System" for the Solicitation No. shown at the top of this page.
Proposals must be in the State Procurement Office's possession online no later than that
deadline.
Submit technical inquiries about navigating and/or submitting proposals in the State's e-
Procurement System to the State's e-Procurement System Help Desk:
• by phone at (602) 542-7600, option2; or
• by email to app _azdoa.gov
LATE PROPOSALS WILL NOT BE CONSIDERED. No extension or grace period will be
given for delays or incomplete proposals caused by internet connectivity problems, file
uploading difficulties, or misunderstanding of the requirements or procedures for online
submission in "The State's e-Procurement System".
4.0 Pre -Offer Conference
The State WILL conduct a Pre -Offer Conference for this Solicitation at the time and place
indicated in the solicitation's 'Process' field as found within "The State's e-Procurement
System" (https://app.az.gov). Attendance is optional but encouraged. Refer to paragraph
2.7 of the Instructions to Offerors for more information.
5.0 Inquiries
Any question related to this Request for Proposal shall be submitted utilizing the State's
"Discussions with Buyer" Tab in the e-procurement system. The Offeror shall not
contact or ask questions of the department for which the requirement is being procured.
End of Section 1
Template version 6.0 (28-JAN-2020)
Packet Pg. 41
4.D.b
Request for Proposal
Arizona Department of
Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., suite 402
Software Value -Added Reseller
Phoenix, AZ85007
Part 2: Scope, Pricing and Terms and Conditions
Table of Contents
SECTION2-A: Scope of Work................................................................................................................... 2
1.0..... INTRODUCTION, PURPOSE, AND BACKGROUND................................................................ 2
2.0..... SCOPE OF WORK............................................................ ERROR! BOOKMARK NOT DEFINED.
SECTION 2-13: Pricing Document............................................................................................................. 12
SECTION 2-C: Special Terms and Conditions.......................................................................................................16
SECTION 2-D: Uniform Terms and Conditions.......................................................................................40
PART 2 of the Solicitation Documents Table of Contents
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1.1
Request for Proposal
Solicitation No. BPM002338
Description:
Software Value -Added Reseller
SECTION 2A: Scope of Work
1.0 Introduction, Purpose, and Background
Introduction, Purpose, and Background —
Arizona Department of
Administration
State Procurement Office
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
The State of Arizona, State Procurement Office (SPO), is requesting proposals for Software Value -Added
Reseller (Reseller) services in furtherance of the NASPO ValuePoint Cooperative Purchasing Program (NASPO
ValuePoint). The purpose of this Solicitation (RFP or Solicitation) is to establish Master Agreements with
qualified Resellers so that eligible entities may acquire Software and related services from Software Value -
Added Resellers.
This RFP seeks offers that can provide better value, and in some cases achieve more favorable pricing, than is
obtainable by an individual state or local government entity because of the collective volume of potential
purchases by numerous state and local government entities. More specifically, this RFP expects offerors to
provide a full range of Reseller services and service options to support Purchasing Entities' COTS and SaaS-
based software needs. The RFP shall be broken up into three award categories: General Software, Microsoft
Software, and Oracle Software. For each of these categories, services related to the software purchase,
including but not limited to installation, configuration, maintenance, and advisory services may be offered.
Lead State, Solicitation Number and Lead State Contract Administrator (LSCA)
The State of Arizona, through its State Procurement Office (SPO), is the Lead State and issuing office for this
document and all subsequent addenda relating to it. This RFP is a competitive process, in accordance with the
Arizona Procurement Code available at https:Hspo.az.gov/. The Arizona Procurement Codeconsists of Arizona
Revised Statutes (ARS) §§41-2501 et seq. and administrative rules and regulations A.A.0 R2-7-1010 et.seq.
"Solicitation #BPM002338" shall be referred to on all proposals, correspondence, and documentation relating
to this RFP.
The Lead State Contract Administrator (LSCA) identified below is the single point of contact during this
procurement process. Offerors and interested persons shall direct to the Lead State Contract Administrator all
questions concerning the procurement process, technical requirements of this Solicitation, contractual
requirements, requests for brand approval, change, clarification, protests, the award process, and any other
questions that may arise related to this solicitation and the resulting Master Agreement. The Lead State
Contract Administrator (LSCA) designated by the State of Arizona, State Procurement Office is:
Eric Bell - State Procurement Manager
State of Arizona, State Procurement Office
100 N. 15th Avenue, Suite 402
Phoenix, Arizona 85007
Phone: (602)542.8921
PART 2 of the Solicitation Documents
Template version 6.0 (28-JAN -2020)
SECTION 2-A: Scope of Work
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I 4.D.b I
1.2
1.3
1.4
Request for Proposal
Solicitation No. BPM002338
Description: Software Value -Added Reseller
NASPO ValuePoint Background Information
Arizona Department of
Administration
State Procurement Office
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
NASPO ValuePoint is the cooperative purchasing program of all 50 states, the District of Columbia and the
territories of the United States. NASPO ValuePoint is a division of the National Association of State Procurement
Officials (NASPO), a 501(c)(3) non-profit association dedicated to strengthening the procurement community
through education, research, and communication.
NASPO is made up of the directors of the central purchasing offices in each of the 50 states, the District of
Columbia and the territories of the United States. NASPO ValuePoint facilitates administration of the cooperative
group contracting consortium of state chief procurement officials for the benefit of state departments, institutions,
agencies, and political subdivisions and other eligible entities (i.e., colleges, school districts, counties, cities, some
nonprofit organizations, etc.) for all states, the District of Columbia, and territories of the United States.
Canadian Participation. Subject to the approval of the awarded Reseller, any Canadian provincial government or
provincially funded entity in the Northwest Territories, Yukon, Nunavut, Ontario, Quebec, Nova Scotia, New
Brunswick, Manitoba, British Columbia, Prince Edward Island, Saskatchewan, Alberta, and Newfoundland and
Labrador, including municipalities, universities, community colleges, school boards, health authorities, housing
authorities, agencies, boards, commissions, and crown corporations may be eligible to use the Reseller's contract.
Additional Agreement with NASPO. Upon request by NASPO ValuePoint, awarded Contractor shall enter into a
direct contractual relationship with NASPO ValuePoint related to Reseller's obligations to NASPO ValuePoint under
the terms of the Master Agreement, the terms of which shall be the same or similar (and not less favorable) than
the terms set forth in the Master Agreement.
For more information consult the following websites: www.naspovaluepoint.org and www.naspo.org.
Schedule of Events
The Procurement Office shall make every effort to adhere to the following schedule. Change in the "Closing Date
and Time" (Proposal Due Date) shall only be by an issued Solicitation Amendment.
Anticipated Solicitation Release:
September 8, 2020
Anticipated Pre -Offer Conference:
September 17, 2020
Anticipated Closing Date and Time:
October 21, 2020
Anticipated Award Date:
January 22, 2021
Purchasing Entities
In addition to the Lead State conducting this RFP, the states listed in Exhibit 1(One) have signed an Intent to
Participate (ITP) document to be named in this Solicitation as potential Participating Entities of the resulting
Master Agreement (MPA). Any state that indicates an Intent to Participate are not obligated to either participate
PART 2 of the Solicitation Documents
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SECTION 2-A: Scope of Work La
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4.D.b
Request for Proposal
Arizona Department of
Administration
Solicitation No. BPM002338
State Procurement Office
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
or enter into any contractual relationship with the selected responders. Other eligible entities, including other
states, may become Participating Entities after award of the MPA through execution of a Participating Addendum
(PA).
A Participating Addendum may include Participating Entity -specific terms and conditions not included in the
Master Agreement. Some of these terms and conditions may be provided to the vendors in the RFP (see Exhibit 2
(Two)) as an informational item only, to give vendors an idea of the terms they might be expected to abide by or
negotiate during the PA process.
Except to the extent modified by a Participating Addendum, each Purchasing Entity shall follow the terms and
conditions of the Master Agreement and shall have the same rights and responsibilities for their purchases as the
Lead State has in the Master Agreement, including but not limited to, any indemnity or right to recover any costs
as such right is defined in the Master Agreement and applicable Participating Addendum for their purchases. Each
Purchasing Entity shall be responsible for its own charges, fees, and liabilities. The Reseller shall apply the charges
and invoice each Purchasing Entity individually.
1.5 Historical Usage
Exhibit 3 (Three) contains the usage data in terms of total sales for all contractors from the current set of contracts
for Calendar Years 2016, 2017, 2018, and 2019. No minimum or maximum level of sales volume is guaranteed or
implied.
PART 2 of the Solicitation Documents
Template version 6.0 (28-JAN-2020)
SECTION 2-A: Scope of Work
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4.D.b
Request for Proposal
Arizona 7ntof
Adm
Solicitation No. BPM002338
State Proc
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
2.0 SCOPE OF WORK
2.1 Software Publishers, Categories. The identified software product needs under this solicitation
have been divided into three mutually -exclusive categories:
Category I — General software: This category includes all software titles except
Microsoft and Oracle. Category I has been further sub -divided into three tiers:
• Tier 1— Key Itemized Publishers
• Tier 2 — Other Itemized Publishers
• Tier 3 — Non -Itemized Publishers
Category II — Microsoft -only software, and
Category III — Oracle -only software.
See descriptions and chart which follow. As indicated, it is most desirable for Reseller to
have a direct reseller agreement with the itemized software Publishers. If a direct
reseller agreement is not already in place between itemized software Publishers and the
Reseller, the Reseller is expected to enter into a direct reseller agreement and submit a
rate for that Itemized Publisher that is better than the rate for a Non -Itemized
Publisher. Over the life of this contract, product needs or volumes may change and new
Publishers may be added by amendment to the Itemized Publishers' lists.
2.1.1 Category 1— General Software Resellers
2.1.1.1 Tier 1— Key Itemized Publishers: The products of the Publishers in this
tier represent the highest tier of sales volume outside of the two (2)
Publisher Specific Categories. This tier is the one most likely to include a
Participating Entity's enterprise or high -volume agreements with a
Publisher. Resellers shall be a certified direct resellers for Publishers in
this category, except in the case where certain Publishers do not sell
directly through Resellers. The preferred pricing that a Reseller receives
based on their reseller certification status, in conjunction with the
anticipated considerable volume of purchases through these Contracts,
is the expected foundation for a very competitive base Reseller Cost,
with further reductions of Reseller Cost as they are achieved through
ongoing Reseller negotiations. If a Reseller's proposal includes the
General Category, the Reseller must be able to resell, and must provide
pricing for each Tier 1 Itemized Publisher (see Pricing Sheet). Specific
requirements may be required for some Publishers in this category in an
individual Participating Entity's PA.
2.1.1.2 Tier2 - Other Itemized Publishers: The products of the Publishers in this
category represent a high level of sales volume as identified for this
solicitation. This category may include a Participating Entity's high -
PART 2 of the Solicitation Documents SECTION 2-A: Scope of Work
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4.D.b
Request for Proposal
Arizona Department of
Administration
Solicitation No. BPM002338
State Procurement Office
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
volume agreements or VLAs with a Publisher. It is desirable for Resellers
to be certified direct resellers for Publishers in this category. If a
Reseller's proposal includes the General Category, the Reseller must be
able to resell, and must provide pricing for, each Tier 2 Itemized
Publisher (see Pricing Sheet). Specific requirements may be required for
some Publishers in this category in an individual Participating Entity's PA
2.1.1.3 Tier 3 - Non -Itemized Publishers (all other distributed software
purchases). This category is defined to include all other distributed
computer software Publishers not specifically itemized. New or existing
software products can be added to this category at any time during the
term of the Contract without the written consent of the LSCA, provided
the offerings, including pricing and terms, meet the requirements of the
Contract, and may be itemized in the online catalog, if volume justifies
the addition. If a Reseller's proposal includes the General Category, the
Reseller must provide pricing applicable to all Non -Itemized Publishers
resold by the Reseller. Specific requirements may be required for some
Publishers in this category in an individual Participating Entity's PA.
KEY ITEMIZED PUBLISHERS
OTHER ITEMIZED PUBLISHERS
NON -ITEMIZED PUBLISHERS
Certification of Direct Reseller status
required, except in the case where
certain Publishers do not sell directly
through Resellers
Certification of Direct Reseller status
desirable. If not certified, the
percentage rate should be no greater
than Non -Itemized Rate
ADOBE
AUTODESK
ALL OTHER PUBLISHERS
CA TECHNOLOGIES
BARRACUDA NETWORKS
CISCO
BMC SOFTWARE
COMMVAULT
CHECK POINT SOFTWARE
IBM
CHERWELL
RED HAT
CITRIX
SPLUNK
CPI
TABLEAU
CROWDSTRIKE
VEEAM
DELL
VMWARE
DELPHIX
DOCUSIGN
DYNATRACE
FORCEPOINT
FORTINET
GOOGLE
PART 2 of the Solicitation Documents
Template version 6.0 (28-JAN-2020)
SECTION 2-A: Scope of Work
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4.D.b
Request for Proposal
Arizona Department of
Administration
Solicitation No. BPM002338
State Procurement Office
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
INFORMATICA
IVANTI
KNOWBE4
MCAFEE
MICRO FOCUS
MULESOFT
NETMOTION
OKTA
OPENTEXT
PROGRESS SOFTWARE
PROOFPOINT
QUEST SOFTWARE
RAPID?
RSA SECURITY
SALESFORCE
SAP
SOLARWINDS
SOPHOS
SPILLMAN
SYMANTEC
TENABLE
TREND MICRO
VARONIS
VERITAS
ZOHO
2.1.1 Category II: Microsoft Resellers
This Category shall be restricted to only Microsoft software products.
2.1.2 Category III: Oracle Resellers
This Category shall be restricted to only Oracle software products.
2.1.3 Software Publishers, General Representation.
Excluded Software Publishers. The Reseller shall agree to enter into good faith
negotiations with any Software Publisher willing to do business with them. Resellers
PART 2 of the Solicitation Documents
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SECTION 2-A: Scope of Work
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4.D.b
Request for Proposal
Arizona 7ntof
Adm
Solicitation No. BPM002338
State Proc
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
shall advise the LSCA or designee of any Software Publishers with whom the Reseller
was unable to enter into a reseller certification following negotiations.
Expanded Representation. The Reseller is expected to continue to work towards reseller
certifications with Publishers not currently represented, particularly with those
Publishers whose sales volume merit classification into the Itemized Publisher lines.
Similarly, Reseller is expected to continue to work towards a higher certification level
with current Publishers
2.2 Category 1- Software Value -Added Reseller ('Reseller' — "SVAR") — All
Publishers Excluding Microsoft and Oracle Software
2.2.1 Software Value -Added Reseller ('Reseller" or "SVAR") shall be a large account reseller,
with a national presence, authorized to sell products direct from software Publishers or
authorized distributors.
2.2.2 SOFTWARE PRODUCTS, including Software as a Service (SaaS)
2.2.2.1 Out of Scope Products - Non-SaaS cloud computing products such as
Infrastructure as a Service ("IaaS"), Platform as a Service ("PaaS"), and
Software provided by a Managed Services Provider are generally out of
scope of this Contract. IaaS shall be allowable only as an incidental
product when 1) SaaS is the primary and predominate title being
purchased, and 2) the limited and incidental licensing of the publisher's
IaaS is essential to the successful and efficient implementation and or
deployment of the SaaS software. This determination should be made by
the purchasing entity in advance of any IaaS purchase.
2.2.2.2 Most Current Version - Purchase orders shall be deemed to reference a
manufacturer's most recent release model or version of the product at
the time of the order, unless the Purchasing Entity specifically requests in
writing an earlier model or version and the Reseller is willing to provide
such model or version.
2.2.2.3 Licenses and Maintenance Agreements - The Reseller shall honor
existing Purchasing Entities' Volume License Agreements (VLA's) or
Enterprise License Agreements (ELA's) with Publishers and include those
licenses as part of the Reseller's license tracking service. Following an
executed PA with a Purchasing Entity, and if so required by the
Purchasing Entity and/or an individual Publisher, the Reseller shall
identify itself to software Publishers as Reseller for that Purchasing
Entity. If so required by the Publisher and Purchasing Entity, the Reseller
shall execute a change of channel partner agreement with the Publisher.
Resellers shall sell additional seats consistent with Purchasing Entities'
VLAs or ELAs. Reseller shall work with Participating Entities, Purchasing
PART 2 of the Solicitation Documents SECTION 2-A: Scope of Work
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4.D.b
Request for Proposal
Arizona 7ntof
Adm
Solicitation No. BPM002338
State Proc
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
Entities and Publishers as needed to establish new VLAs or ELAs. The
Reseller shall work with the Publisher and Purchasing Entities as
necessary to ensure the Purchasing Entity receives timely and pertinent
license information, such as: license or agreement renewals, and
opportunities based on actual volume.
Reseller shall work directly with Purchasing Entities in establishing,
signing and maintaining enrollment agreements. If a Reseller is the sole
Reseller in a State, the Reseller shall aggregate all enrollments together
for Master Agreement reporting purposes. If a Participating Entity elects
to have multiple SVAR contractors, Reseller's responsibilities shall be
delineated in that State or Entity's PA. Resellers shall monitor and be
able to report on the current levels of software ordered towards any of
the Purchasing Entities' VLA-required sales levels to ensure the
Purchasing Entity does not fall short and thereby incur Publisher
penalties. The Reseller shall be responsible for providing license usage
information to the Publishers, if such information is required by the
Publishers, in a timely manner (e.g., for 'true up' assessments)
2.2.2.4 Subscription -based Software Licenses. Purchasing Entities can purchase
monthly or annual licenses or subscriptions through the Reseller, which
provides access to and use of the software during the subscription term
2.2.2.5 Individual Software Licenses. Purchasing Entities can purchase individual
COTS licenses, such as perpetual and non -perpetual licenses, through the
Reseller.
2.2.2.6 Software Maintenance and Support Agreements.
Purchasing Entities can purchase maintenance agreements, including
upgrade protection, through the Reseller. Resellers shall sell software
maintenance agreements, even if the software was not purchased under
this agreement, such as on -going support for a User's existing perpetual
license. As requested, Reseller shall explain what product support or
services are included in a Publisher's maintenance agreement.
2.2.2.7 Software Maintenance and Support. Reseller to provide needed services
to support maintenance products such as maintenance agreements,
software upgrades, annual updates, patches and fixes needed to
improve functionality and keep the software in working order. Such
services may include providing recommendations on the most cost-
effective or appropriate long-term maintenance plan. Reseller shall
provide such support, not only to maintenance packages purchased
under this Contract, but in support of any other existing and current
agreements.
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Adm
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State Proc
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
2.2.2.8 Software Updates. Resellers shall ensure Users are eligible to receive,
from the Publisher, all new releases and updates of the software, at no
additional charge, while under a maintenance agreement at the time
such releases and updates are released to any customers of the
Publisher.. A "Release" means any collection of enhancements or
updates which the Publisher generally makes available to its installed
base of customers of such programs. The Reseller shall assist the
Purchasing Entity to obtain such releases or updates for their Users from
the Publisher.
Should a User not want to receive the next update, the User shall so
notify the respective Publisher.
2.2.2.9 Leases
Lease purchase and term leases are allowable only for Purchasing
Entities whose rules and regulations permit leasing of software.
Individual Purchasing Entities may enter into a lease agreement for the
products covered in this Master Agreement, if they have the legal
authority to enter into these types of agreements without going through
a competitive process and if the applicable Pas permit leasing. No lease
agreements shall be reviewed or evaluated as part of this RFP evaluation
process.
2.2.3 VALUE-ADDED SERVICES — MANDATORY BASIC SERVICES: Reseller shall provide the
following Basic Services at no additional charge:
2.2.3.1 Provide Software Products, including COTS, Software as a Service (SaaS),
and Related Services
2.2.3.2 Honor existing Volume or Enterprise license agreements held by the
Purchasing Entity.
2.2.3.3 Retain or enhance Reseller certifications with software Publishers - At a
minimum, maintain Reseller certification levels held at time of award
If Reseller's certification or reseller status is withdrawn or reduced,
Reseller is required to immediately notify, in writing, the Lead State
Contract Administrator (LSCA), each Participating Entity, and each
Purchasing Entity explaining:
PART 2 of the Solicitation Documents
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• The change;
• The impact on their costs to obtain the product;
• Limitations on the products or services they may provide; and,
• The reasons for the change.
SECTION 2-A: Scope of Work
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Request for Proposal
Arizona Department of
Administration
Solicitation No. BPM002338
State Procurement Office
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
Failure to provide the required notification, regarding significant
negative changes in their reseller status, may be grounds for suspension
or cancellation of the MPA and PA's.
2.2.3.4 If a Purchasing Entity requests software from a Publisher with which the
Reseller has no established relationship, the Reseller shall agree to enter
into good faith negotiations with the Software Publisher. Resellers shall
advise the LSCA or designee of any Software Publishers with whom the
Reseller was unable to enter into a reseller certification following
negotiations.
2.2.3.5 Provide Pre -Sale Advisement:
• Advise the Purchasing Entity in making strategic software
application decisions by providing evaluation copies, product
comparisons, needs analysis, product information and
application recommendations.
• Assist the Purchasing Entity to make cost neutral adjustments to
bundled titles to substitute for or delete duplicative Publisher
titles.
• Example: In selecting the most -beneficial basket of applications
from a Publisher's library (ex: Microsoft or Adobe applications)
2.2.3.6 Act as liaison between the Purchasing Entity and individual Publishers to
identify best approaches and cost savings opportunities for the
Purchasing Entity. Examples of such are:
• Selecting appropriate software subscription plan options,
software enhancements, and sets of features;
• Explaining Volume License Agreements with complicated rules;
• Determining the most cost-effective buying strategies;
• Finding software options to meet a specific need, for example,
online survey software or risk management software.
2.2.3.7 Negotiate with Publishers to reduce Reseller Cost, and pass on savings to
Purchasing Entities.
2.2.3.8 Provide assistance in developing Volume License and Enterprise
Agreements.
2.2.3.9 Provide Software installation assistance including, but not limited to:.
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• Provide, at no additional cost, assistance or advice in basic
installation or implementation of software products.
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Solicitation No. BPM002338
State Procurement Office
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
• If the Purchasing Entity encounters difficulty in downloading or
installing the software, the Reseller shall provide assistance
within eight (8) business hours of being informed of the problem
2.2.3.10Provide Software De -Installation Assistance.
2.2.3.11Notify Purchasing Entities of Publisher publicly announced changes
pertinent to User licensing.
2.2.3.12Provide Basic License Management to include:
• Reseller shall have in place a product license inventory and a
basic software asset management system, which shall include an
accurate inventory record of product licenses purchased under
this Contract.
• Reseller shall also have the capability of tracking maintenance
renewal and other significant due dates.
2.2.3.13 License Confirmations For licenses ordered under the contract by
Purchasing Entity(ies), Reseller shall be able to provide:
• Certified Licensing Confirmation Certificates for all software
licenses;
• Reseller's certified license confirmation certificates in the name
of such Licensee; or,
• Written confirmation from the Reseller or Publisher accepting
the Participating Entities' contract or purchase order as proof of
license
2.2.3.14 TransitioninR License Tracking Information Reseller shall store license
information data acquired and retained shall as sortable data fields and
transfer the license information to the Purchasing Entity upon contract
termination. Reseller shall work with Purchasing Entities to ensure that
the license information data has been successfully transferred in a usable
format.
2.2.4 VALUE-ADDED SERVICES - PREMIUM SERVICES: The Reseller may offer Premium Value -
Added Services related to the software being purchased. The following may be an
additional cost:
2.1.3.1 Offer maintenance and support packages on licenses already owned by
the Purchasing Entity.
2.1.3.2 Provide advanced or refresh Training Services related to a software
purchase under this Contract or existing software held by the Purchasing
Entity.
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2.3
Request for Proposal Arizona Department of
Administration
Solicitation No. BPM002338 State Procurement Office
Description: Software Value -Added Reseller 100 N 15th Ave., Suite 402
Phoenix, AZ 85007
2.1.3.3 Optional Value -Added Premium Services as provided in the proposal and
approved by NASPO ValuePoint and the LSCA.
Category 2 — Microsoft SVAR
2.3.1 Software Value -Added Reseller ('Reseller'— "SVAR") shall be a large account reseller,
with a national presence, authorized by Microsoft as a Licensing Solution Provider (LSP)
for all current and existing, and new Microsoft products and subscriptions.
2.3.2 Out of Scope Products - Non-SaaS cloud computing products such as Infrastructure as a
Service ("IaaS"), Platform as a Service ("PaaS"), and Software provided by a Managed
Services Provider are generally out of scope of this Contract. IaaS shall be allowable
only as an incidental product when 1) SaaS is the primary and predominate title being
purchased, and 2) the limited and incidental licensing of the publisher's IaaS is essential
to the successful and efficient implementation and or deployment of the SaaS software.
This determination should be made by the purchasing entity in advance of any IaaS
purchase.
2.3.3 Software Products, including Software as a Service
2.3.3.1 Provide an up to date list of all software products and subscriptions
offered by Microsoft.
2.3.3.2 Purchase orders shall be deemed to reference the most recent release
of the Software Product at the time of the order.
2.3.3.3 Licenses and Maintenance Agreements
PART 2 of the Solicitation Documents
Template version 6.0 (28-JAN-2020)
• The Reseller shall honor the Purchasing Entity's existing Select
Agreements, Enterprise License Agreements and Volume
License Agreements.
• Following an executed Order with a Purchasing Entity and/or
Microsoft, the Reseller shall identify itself to Microsoft as the
Reseller for that Purchasing Entity. If so required by the
Microsoft and Purchasing Entity, Reseller shall execute a change
of channel partner agreement with the Microsoft.
• Resellers shall sell additional seats consistent with Purchasing
Entities' Select, Enterprise or Volume Agreements. Reseller shall
work with Purchasing Entity and Microsoft as needed to
establish new Select, Enterprise and Volume License
Agreements.
• The Reseller shall work with the Microsoft and Purchasing Entity
as necessary to ensure the Purchasing Entity receives timely and
SECTION 2-A: Scope of Work
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Arizona 7ntof
Adm
Solicitation No. BPM002338
State Proc
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
pertinent license information, such as: license or agreement
renewals, or opportunities based on actual volume.
• Reseller shall work directly with Purchasing Entity in
establishing, signing and maintaining enrollment agreements
• If a Reseller is the sole Microsoft Reseller for a Purchasing
Entity, Reseller shall aggregate all enrollments together for
Master Agreement reporting purposes. If a Participating Entity
elects to have multiple SVAR contractors, Reseller's
responsibilities shall be delineated in that State or Entity's PA.
• Resellers shall monitor and be able to report on the current
levels of software ordered towards any of the Purchasing
Entities VLA-required sales levels to ensure the Purchasing
Entity does not fall short and thereby incur Publisher penalties
• The Reseller shall be responsible for providing license usage
information to Microsoft, if such information is required by
Microsoft, in a timely manner (e.g., for 'true up' assessments)
• Subscription -based Software Licenses. Purchasing Entities can
purchase monthly or annual licenses or subscriptions through
the Reseller, which provides access to and use of the software
during the subscription term
• Purchasing Entities can purchase individual COTS licenses, such
as perpetual and non -perpetual licenses, through the Reseller.
2.3.3.4 Software Maintenance and Support Agreements
Purchasing Entities can purchase maintenance agreements,
including upgrade protection, through the Reseller. Resellers
shall sell software maintenance agreements, even if the
software was not purchased under this agreement, such as on-
going support for a User's existing perpetual license. As
requested, Reseller shall explain what product support or
services are included in a publisher's maintenance agreement.
• Reseller to provide needed services to support maintenance
products such maintenance agreements, software upgrades,
annual updates, patches and fixes needed to improve
functionality and keep the software in working order. Such
services may include the provision of recommendations on the
most cost-effective or appropriate long-term maintenance plan.
Reseller shall provide such support, not only to maintenance
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Request for Proposal Arizona Department of
Administration
Solicitation No. BPM002338 State Procurement Office
Description: Software Value -Added Reseller 100 N 15th Ave., Suite 402
Phoenix, AZ 85007
packages purchases under this agreement, but in support of any
existing and current agreements.
2.3.3.5 Leases. Lease purchase and term leases are only allowed for Purchasing
Entities whose rules and regulations permit leasing of software.
Individual Purchasing Entities may enter into a lease agreement for the
products covered in this Master Agreement, if they have the legal
authority to enter into these types of agreements without going
through a competitive process. No lease agreements shall be reviewed
or evaluated as part of this RFP evaluation process.
2.3.4 VALUE-ADDED SERVICES— MANDATORY BASIC SERVICES
The reseller shall identify core value added services it provides to all Purchasing Entities
at no charge. The services outlined in this section depict a minimum level of services
that shall be provided to any Purchasing Entity.
2.3.4.1 Advise the Purchasing Entity in making strategic software application
decisions by providing evaluation copies, product comparisons, needs
analysis, product information and application recommendations.
2.3.4.2 Act as liaison between the Purchasing Entity and Microsoft in identifying
best approaches and cost savings opportunities for the Purchasing
Entity. Examples include, but are not limited to:
• selecting appropriate software;
• explaining Volume License Agreements rules;
• determining the most cost-effective buying strategies;
• ensuring that Purchasing Entity is in compliance with licensing
requirements;
• finding software options to meet a specific need;
• developing software migration strategies;
• developing enterprise level licensing optimization strategies that
include department/agency software consolidation and
rationalization;
• bundling and unbundling software titles into software packages
to provide the most cost effective solutions for the Purchasing
Entity; and
• developing alternative software options and strategies when a
Microsoft software title becomes unfeasible for the Purchasing
Entity.
2.3.4.3 Negotiate to reduce Reseller Cost, to pass savings on to the Purchasing
Entity.
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Request for Proposal
Arizona Department of
Administration
Solicitation No. BPM002338
State Procurement Office
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
2.3.4.4 Identify pricing tiers and standard pricing models available to all
Purchasing Entities under this Master Agreement.
2.3.4.5 Provide assistance to the Purchasing Entity by explaining and assisting
the Purchasing Entity in the development of Volume License and
Enterprise Agreements.
2.3.4.6 Assist the Purchasing Entity to determine optimum enterprise wide
allocation total to obtain the best pricing and tiers for quantities that
can be purchased.
2.3.4.7 Provide the Purchasing Entity with regular education and training by
knowledgeable staff on new and emerging software and software
related technologies offered or planned to be offered by Microsoft.
2.3.4.8 Provide a list of all Microsoft Solution Specialists that includes their
specialty and their contact information.
2.3.4.9 For all Microsoft software and subscription products, provide a list of all
security control systems, standards and certifications the product is in
compliance with. For example: FedRAMP, NIST, CSA, SOC 2, ISO, etc.
Include the specific standard by title, number and control identifier.
2.3.4.10 Return all phone calls within 2 business days and all a -mails within 24
hours.
2.3.4.11 Provide Software Installation advise, assistance and/or training.
• Provide assistance or advice with basic installation or
implementation of COTS product.
• If the Purchasing Entity encounters difficulty in downloading or
installing the software, the Reseller shall provide assistance
within eight (8) business hours of being informed of the
problem.
• Provide Software De -Installation Assistance.
2.3.4.12 Provide Tracking, Management, Usage Monitoring and Reporting of
Licenses
• Reseller shall have in place a license inventory and software
asset management section in their portal page for each
Purchasing Entity, which shall include:
• An accurate tracking and inventory record of software
licenses purchased and added on to enrollment under
this Contract;
• All licenses on current enrollment;
PART 2 of the Solicitation Documents SECTION 2-A: Scope of Work
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Request for Proposal
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Administration
Solicitation No. BPM002338
State Procurement Office
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
• Quantities of licenses at department/agency levels
within a Purchasing Entity; and
• Licenses to and from each department/agency within a
Purchasing Entity.
• If required by the Purchasing Entity, an accurate
tracking and inventory of Microsoft licenses from third -
party computer contracts.
• Reseller shall also have the capability of tracking and reporting
maintenance renewal and other significant due dates.
• At a minimum, this system shall be able to provide this
information by Purchasing Entity, and department and agency
level within a purchasing entity
• Reseller shall work with Purchasing Entity, publishers, previous
and subsequent contract software resellers, and hardware
computer contractors to ensure the most comprehensive record
of licenses is created, maintained, and the information
transferrable.
• Provide reports with the content and frequency required by the
Purchasing Entity.
• The Purchasing Entity may choose to award multiple PA's under
this Agreement. Details on how licenses are to be tracked and
managed under multiple awards shall be determined by
Purchasing Entity.
• As may be required by a Purchasing Entity, Reseller shall work
with NASPO ValuePoint computing equipment contractors, or a
Participating State's comparable computer hardware Reseller, to
see that any software acquired under those contracts can be
tracked through this contract.
• Notify Purchasing Entity of Publisher publicly announced changes
pertinent to User licensing.
2.3.4.13 Provide training services to Purchasing Entities that include, but are not
limited to the following topics:
• Installation
• De Commissioning
• Implementation
• Maintenance
• Configuration
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4.D.b
Request for Proposal
Arizona Department of
Administration
Solicitation No. BPM002338
State Procurement Office
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
• Product orientation for all SaaS products
• Select and Enterprise licensing
• Use of the Portal and any reseller applications and tools to
support this contract.
• Use of the contract including training and aids on the processes
provided for quotes and placing orders.
• Forms of training shall include, but are not limited to:
• Online training available on the Portal,
• Supplementary electronic (e.g. Webinars, emails),
telephone or on -site training provided, as needed,
during standard working hours.
• Training shall be available in the form of tutorials for
basic installation and web -based training for software
operation, basic phone support.
• Provision of information on how to access a Software
Publisher's "Help Desk" (either telecom or web -based)
for basic use questions.
• More detailed and targeted training unique to specific product
offerings may be provided at the request of the Purchasing
Entity.
2.3.4.14 License Confirmations. For licenses ordered under the contract by
Purchasing Entity, the Reseller shall provide certified license
confirmation certificates in the name of such Licensee; or written
confirmation from the Reseller or Microsoft accepting the Purchasing
Entity's contract or purchase order as proof of license.
• The form of "Proof of License" provided shall be
acceptable proof to Microsoft, and in the format
requested by the Purchasing Entity. The Proof of License
shall be provided as an electronic file and/or a hardcopy
document, as required by the Purchasing Entity.
Reseller shall retain an electronic file of Purchasing
Entity's Proof of Licenses.
2.3.4.15 Transitioning License Tracking Information at Contract Termination. The
license information data acquired and retained by Reseller shall be
stored as sortable data fields so the license information can be
transferred to the Purchasing Entity or their designees in a useable
format as determined by the purchasing entity upon contract
termination.
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Request for Proposal
Arizona 7ntof
Adm
Solicitation No. BPM002338
State Proc
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
2.3.5 PREMIUM VALUE-ADDED SERVICES: The Reseller may offer Optional Value -Added
Services related to the software being purchased. These services may be priced to
include added compensations for each additional Optional Value Added Service, or may
be provided by the Reseller at no additional charge. Examples of Optional Value Added
Services include, but are not limited to:
2.3.5.1 Offer maintenance and support packages on licenses already owned by
the Purchasing Entity.
2.3.5.2 Provide advanced or refresh Training Services related to a software
purchase under this contract or existing software held by the Purchasing
Entity.
2.3.5.3 Optional Value Added Premium Services as provided in the proposal and
approved by NASPO ValuePoint and the LSCA.
2.4 Category 3 — Oracle SVAR
2.4.1 Software Value -Added Reseller ('Reseller'— "SVAR") shall be a large account reseller,
with a national presence, authorized by Oracle as a Licensing Solution Provider (LSP) for
all current and existing, and new Oracle products and subscriptions.
2.4.2 Out of Scope Products - Non-SaaS cloud computing products such as Infrastructure as a
Service ("IaaS"), Platform as a Service ("PaaS"), and Software provided by a Managed
Services Provider are generally out of scope of this Contract. IaaS shall be allowable
only as an incidental product when 1) SaaS is the primary and predominate title being
purchased, and 2) the limited and incidental licensing of the publisher's IaaS is essential
to the successful and efficient implementation and or deployment of the SaaS software.
This determination should be made by the purchasing entity in advance of any IaaS
purchase.
2.4.3 Software Products, including Software as a Service
2.4.3.1 Provide an up to date list of all Oracle software and subscription
products offered.
2.4.3.2 Purchase orders shall be deemed to reference the most recent release
of the Software Product at the time of the order.
2.4.3.3 Licenses and Maintenance Agreements
PART 2 of the Solicitation Documents
Template version 6.0 (28-JAN-2020)
• The Reseller shall honor the Purchasing Entities existing
Enterprise License Agreements and Volume License
Agreements.
SECTION 2-A: Scope of Work
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Request for Proposal
Arizona 7ntof
Adm
Solicitation No. BPM002338
State Proc
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
• Following an executed PA with a Purchasing Entity and/or
Oracle, the Reseller shall identify itself to Oracle as the Reseller
for that Purchasing Entity. If so required by the Oracle and
Purchasing Entity, Reseller shall execute a change of channel
partner agreement with Oracle.
• Resellers shall sell additional seats consistent with Purchasing
Entities' Enterprise or Volume Agreements. Reseller shall work
with Purchasing Entity and Oracle as needed to establish new
Enterprise and Volume License Agreements.
• The Reseller shall work with the Oracle and Purchasing Entity as
necessary to ensure the Purchasing Entity receives timely and
pertinent license information, such as: license or agreement
renewals, or opportunities based on actual volume.
• Reseller shall work directly with Purchasing Entity in
establishing, signing and maintaining enrollment agreements
• If Reseller is sole SVAR Reseller for Oracle in a Purchasing Entity,
Reseller shall aggregate all enrollments together for Master
Agreement reporting purposes. If a Purchasing Entity elects to
have multiple SVAR contractors, Reseller's responsibilities shall
be delineated in that Purchasing Entity's PA.
• Resellers shall monitor and be able to report on the current
levels of software ordered towards any of the Purchasing
Entities license agreements required sales levels to ensure the
Purchasing Entity does not fall short and thereby incur Publisher
penalties.
• The Reseller shall be responsible for providing license usage
information to Oracle, if such information is required by Oracle,
in a timely manner (e.g., for 'true up' assessments)
• Subscription -based Software Licenses. Purchasing Entities can
purchase monthly or annual licenses or subscriptions through
the Reseller, which provides access to and use of the software
during the subscription term
• Purchasing Entities can purchase individual COTS licenses, such
as perpetual and non -perpetual licenses, through the Reseller.
2.4.3.4 Software Maintenance and Support Agreements
• Purchasing Entities can purchase maintenance agreements,
including upgrade protection, through the Reseller. Resellers
shall sell software maintenance agreements, even if the
PART 2 of the Solicitation Documents SECTION 2-A: Scope of Work
Template version 6.0 (28-JAN-2020) Page 20 of 82
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4.D.b
Request for Proposal
Arizona 7ntof
Adm
Solicitation No. BPM002338
State Proc
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
software was not purchased under this agreement, such as on-
going support for a User's existing perpetual license. As
requested, Reseller shall explain what product support or
services are included in a publisher's maintenance agreement.
• Reseller to provide needed services to support maintenance
products such maintenance agreements, software upgrades,
annual updates, patches and fixes needed to improve
functionality and keep the software in working order. Such
services may include providing recommendations on most cost-
effective or appropriate long-term maintenance plan. Reseller
shall provide such support, not only to maintenance packages
purchases under this agreement, but in support of any existing
and current agreements.
2.4.3.5 Leases. Lease purchase and term leases are allowable only for
Purchasing Entities whose rules and regulations permit leasing of
software. Individual Purchasing Entities may enter into a lease
agreement for the products covered in this Master Agreement, if they
have the legal authority to enter into these types of agreements
without going through a competitive process. No lease agreements shall
be reviewed or evaluated as part of this RFP evaluation process.
2.4.4 VALUE-ADDED SERVICES— MANDATORY BASIC SERVICES
The reseller shall identify core value added services it provides to all Purchasing Entities
at no charge. The services outlined in this section depict a minimum level of services
that shall be provided to any Purchasing Entity.
2.4.4.1 Advise the Purchasing Entity in making strategic software application
decisions by providing evaluation copies, product comparisons, needs
analysis, product information and application recommendations.
2.4.4.2 Act as liaison between the Purchasing Entity and Oracle in identifying
best approaches and cost savings opportunities for the Purchasing
Entity. Examples include, but are not limited to:
• selecting appropriate software;
• explaining Volume License Agreements rules;
• determining the most cost-effective buying strategies;
• ensuring that Purchasing Entity is in compliance with licensing
requirements;
• finding software options to meet a specific need;
• developing software migration strategies;
PART 2 of the Solicitation Documents SECTION 2-A: Scope of Work
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4.D.b
Request for Proposal
Arizona 7ntof
Adm
Solicitation No. BPM002338
State Proc
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
• developing enterprise level licensing optimization strategies that
include department/agency software consolidation and
rationalization;
• bundling and unbundling software titles into software packages
to provide the most cost effective solutions for the Purchasing
Entity; and
• Developing alternative software options and strategies when an
Oracle software title becomes unfeasible for the Purchasing
Entity.
2.4.4.3 Negotiate to reduce Reseller Cost, to pass on savings to the Purchasing
Entity.
2.4.4.4 Identify pricing tiers and standard pricing models available to all
Purchasing Entities under this master agreement.
2.4.4.5 Provide assistance to the Purchasing Entity by explaining and assisting
the Purchasing Entity in the development of Volume License and
Enterprise Agreements.
2.4.4.6 Assist the Purchasing Entity to determine optimum enterprise wide
allocation total to obtain the best pricing and tiers for quantities that
can be purchased.
2.4.4.7 Provide regular education and training on new and emerging software
and software related technologies offered or planned by Oracle by
knowledgeable
2.4.4.8 Provide a list of all Oracle Solution Specialists that includes their
specialty and their contact information
2.4.4.9 For each software and subscription product offered, provide a list of all
security control systems, standards and certifications the product is in
compliance with. For example: FedRAMP, NIST, CSA, SOC 2, ISO, etc.
Include the specific standard by title, number and control identifier.
2.4.4.10Return all phone calls and emails within 2 business days.
2.4.4.11 Provide Software Installation advise, assistance and/or training.
• Provide assistance or advice in basic installation or
implementation of COTS product.
• If the Purchasing Entity encounters difficulty in downloading or
installing the software, the Reseller shall provide assistance
within eight (8) business hours of being informed of the
problem.
• Provide Software De -Installation Assistance.
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4.D.b
Request for Proposal
Arizona Department of
Administration
Solicitation No. BPM002338
State Procurement Office
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
2.4.4.12 Provide Tracking, Management, Usage Monitoring and Reporting of
Licenses
• Reseller shall have in place a license inventory and software
asset management section in their portal page for each
Purchasing Entity, which shall include:
• An accurate tracking and inventory record of software
licenses purchased and added on to enrollment under
this Contract;
• All licenses on current enrollment;
• Quantities of licenses at department/agency levels
within a Purchasing Entity; and
• Licenses to and from each department/agency within a
Purchasing Entity.
• If required by the Purchasing Entity, an accurate
tracking and inventory of Oracle licenses from third
party computer contracts.
• Reseller shall also have the capability tracking and reporting
maintenance renewal and other significant due dates.
• At a minimum, this system shall be able to provide this
information by Purchasing Entity, department and agency level
within a purchasing entity
• Reseller shall work with Purchasing Entity, publishers, previous
and subsequent contract software resellers, and hardware
computer contractors to ensure the most comprehensive record
of licenses is created, maintained, and the information
transferrable.
• Provide reports with the content and frequency required by the
Purchasing Entity.
• The Participating Entity may choose to award multiple PA's
under this Agreement. Details on how licenses are to be tracked
and managed under multiple awards shall be determined by
Participating Entity.
• As may be required by a Purchasing Entity, Reseller shall work
with NASPO ValuePoint computing equipment contractors, or a
Participating State's comparable computer hardware Reseller, to
see that any software acquired under those contracts can be
tracked through this contract.
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Request for Proposal
Arizona Department of
Administration
Solicitation No. BPM002338
State Procurement Office
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
• Notify Purchasing Entity of publisher publicly announced
changes pertinent to User licensing.
2.4.4.13 Provide training services to Purchasing Entities that include, but are not
limited to the following topics:
• Installation
• De Commissioning
• Implementation
• Maintenance
• Configuration
• Product orientation for all SaaS products
• Enterprise licensing
• Use of the Portal and any reseller applications and tools to
support this contract.
• Use of the contract including training and aids on the processes
provided for quotes and placing orders.
• Forms of training shall include, but are not limited to:
• Online training available on the Portal,
• Supplementary electronic (e.g. webinars, emails),
telephone or on -site training provided, as needed,
during standard working hours.
• Training shall be available in the form of tutorials for
basic installation and web -based training for software
operation, basic phone support.
• Provision of information on how to access a Software
Publisher's "Help Desk" (either telecom or web -based)
for basic use questions.
• More detailed and targeted training unique to specific product
offerings may be provided at the request of the Purchasing
Entity.
2.4.4.14 License Confirmations. For licenses ordered under the contract by
Purchasing Entity, the Reseller shall provide certified license
confirmation certificates in the name of such Licensee; or written
confirmation from the Reseller or Oracle accepting the Purchasing
Entity's contract or purchase order as proof of license.
• The form of "Proof of License" provided shall be
acceptable proof to Oracle, and in the format requested
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Request for Proposal
Arizona Department of
Administration
Solicitation No. BPM002338
State Procurement Office
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
by the Purchasing Entity. The Proof of License shall be
provided as an electronic file and/or a hardcopy
document, as required by the Purchasing Entity.
Reseller shall retain an electronic file of Purchasing
Entity's Proof of Licenses.
2.4.4.15 Transitioning License Tracking Information at Contract Termination. The
license information data acquired and retained by Reseller shall be
stored as sortable data fields so the license information can be
transferred to the Purchasing Entity or their designees in a useable
format as determined by the purchasing entity upon contract
termination.
2.4.5 PREMIUM VALUE-ADDED SERVICES: The Reseller may offer Optional Value -Added
Services related to the software being purchased. These services may be priced to
include added compensations for each additional Optional Value Added Service, or may
be provided by the Reseller at no additional charge. Examples of Optional Value Added
Services include, but are not limited to:
2.4.5.1 Offer maintenance and support packages on licenses already owned by
the Purchasing Entity.
2.4.5.2 Provide advanced or refresh Training Services related to a software
purchase under this contract or existing software held by the Purchasing
Entity.
2.4.5.3 Optional Value Added Premium Services as provided in the proposal and
approved by NASPO ValuePoint and the LSCA.
2.5 General Requirements —All Categories
2.5.1 Customer Portal. Reseller shall Develop and Maintain a Portal, at the request of
Participating Entities, to facilitate tracking, management, usage, ordering, monitoring
and reporting of software products and License Agreements. The Portal shall include,
but shall not be limited to:
PART 2 of the Solicitation Documents
Template version 6.0 (28-JAN-2020)
Mandatory Elements:
• Signed Master Agreement
• Signed Participating Addendum
• Designated Baseline price list(s) (MSRP or Cost Plus, List Price,
Education) and associated discounts.
• Service options available on the contract
SECTION 2-A: Scope of Work
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Request for Proposal
Arizona Department of
Administration
Solicitation No. BPM002338
State Procurement Office
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
• Contact information for order placement, service concerns
(warranty and maintenance) , problem reporting, and billing
concerns, including problem escalation. The Reseller shall
provide an incident escalation path for each Participating Entity,
showing on that Participating Entity's webpagee, the name,
contact information, and role of individuals to whom problems
should be escalated if the problems are not resolved by primary
assigned contacts.
• Sales representatives and their contact information to include
direct telephone number and email address for Purchasing
Entities
• The Portal shall be operational twenty-four (24) hours per day,
seven (7) days per week, except for regularly scheduled
maintenance times, and shall be ADA Section 508 compliant.
The website shall be separate from the Contractor's
commercially available (i.e., public) on-line catalog and ordering
systems. No other items or pricing may be shown on the website
without written approval from the Lead State.
• Within 60 calendar days of execution of a Participating
Addendum, the Reseller shall provide a Universal Resource
Locator (URL) for the website to the Participating Entity and the
LSCA within sixty (60) days of the execution of the PA. The Lead
State shall review and determine acceptability of the website
format and data. If the information is determined to be
unacceptable or incorrect, the Reseller shall have 15 calendar
days to provide revisions to the Lead State. Once the website is
approved, the Reseller may not make material changes to the
website without notifying the Lead State and receiving written
approval of the changes. Pricing shall be kept current.
Desirable Elements:
• Purchase order tracking
• Copy of RFP Response
• Online ordering capability with the ability to remember multiple
ship to locations
• If elements of the website require a secure log -in, Responder
shall provide listing of items that would require a secure sign -in
option e.g. reprinting of invoices, or purchase order tracking.
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Request for Proposal
Arizona 7ntof
Adm
Solicitation No. BPM002338
State Proc
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
• If the Reseller is acquired by another company during the
contract term, the new Reseller shall maintain documentation on
the website that informs the end users of the change. This may
include a memo or summary letter outlining the operational
effects e.g. formal name change
• A repository of commonly -encountered EULAs to assist states
when considering the purchase of specific software
• Tracking, Management, Usage Monitoring and Reporting of
Licenses for each Purchasing Entity
• Software Title Offerings: Contactor maintains a searchable index
of all software title offerings from all Publishers under the scope
of this contract for end users to utilize. For the Key Itemized and
Other Itemized Publishers, this index shall include product
descriptions, security standards, certifications and security
controls met by each software product
• Non -authorized products or groups of products shall not be on
included in the Online Catalog. Reseller shall not use this
proposed website to cross -sell or cross -advertise other products
and or services the Reseller may be able to offer.
• User Differentiation. Catalog should be designed to provide a
means to identify the Purchasing Entity. The method used shall
not require any undue administrative tasks on the part of the
user. Website should allow Users to develop personal lists and
profiles, including an option to securely store and maintain
procurement card information.
• The ability for the Purchasing Entity to create custom reports.
The requesting Purchasing Entity shall be able to select specific
fields and create a necessary report for their specific needs. Data
Fields shall include, but not be limited to, Purchasing Entity,
Purchase Order Number, Order date, Invoice date, Publisher,
Publisher Part Number, Software Reseller's Part Number,
Description, Quantity Shipped, Unit actual price, Extended Price,
Sales Tax and order total. Reports shall be able to be shown
online as well as emailed to the requesting Purchasing Entity
representative, if requested. Examples of Reseller's standard and
online reports shall be submitted with the offer.
• The capability of being used as a 'Punch Out' to an individual
state's electronic purchasing system. For this paragraph, "Punch
Out" means a mechanism by which the e-procurement
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Arizona 7ntof
Adm
Solicitation No. BPM002338
State Proc
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
application makes it possible for a buyer to access a supplier's
website from the buyer's own procurement application.
2.5.2 Price Quote, General. For categories 1, 2, and 3, pricing is reflected in the MPA as either
1) a percentage of the invoice paid by the Software Reseller to the Software Publisher or
2) a percentage discount off of the Publishers List/MSRP price.
Individual PA's shall use the MPA pricing as a base and may negotiate an adjusted rate
Any negotiated PA rates, exclusive of taxes or any individual state's administrative fee,
shall not exceed the MPA rates. As requested by Purchasing Entity, for example on a
high -volume single order, Reseller shall negotiate to reduce Reseller Cost, to pass on
savings to the Purchasing Entity. Firm individual order quotes shall be provided to
Purchasing Entity prior to order submittal.
2.5.2.1 Telephone or Email Quote Support. Reseller shall accept requests for
quotes by telephone, fax, email, or online. Reseller shall accept collect
telephone calls and/or provide and maintain a toll -free number for
eligible agency use. Reseller shall provide an email address for receipt of
requests for price quotes. Reseller shall provide written quotes by fax,
email or online as requested by the Participating State.
2.5.2.2 Quoted Delivery Method. The quote shall clearly indicate the method of
delivery, whether via media, download, or other methods.
2.5.2.3 Timely Quotes. Reseller agrees to work with Publishers and distributors
to obtain quotes and deliver software in a timely fashion. Expected
response should be within twenty-four (24) hours but no more than
three (3) business days. If, after three (3) business days, the Reseller has
been unable to obtain the quote or assurances that they can obtain the
software, the Reseller shall contact the Purchasing Entity with a status
report. The Reseller and the Purchasing Entity shall mutually agree as to
whether the Reseller shall continue to pursue a quote and within what
timeframe, or whether the Reseller shall provide the Participating
State/Purchasing Entity with a written statement that the Reseller
cannot supply the software. If the Reseller has been unable to obtain a
quote within ten (10) days of the request for quote, the Reseller shall
provide a written statement (email is sufficient) to Participating
State/Purchasing Entity, and the LSCA as may be required under the PA,
that the Reseller cannot supply the software, and the reason why.
2.5.2.4 Guaranteed 30 Day Quote. Reseller is required to honor all quotes for
thirty (30) calendar days.
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Request for Proposal
Arizona 7ntof
Adm
Solicitation No. BPM002338
State Proc
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
2.5.3 Optional Services Cap. Individual Purchasing Entities shall reserve the right to establish
caps on services in their Participating Addendum. For example, a Purchasing Entity may,
at its discretion, establish a cap that limits services expenditures to 30% of the value of
the related software purchase.
2.5.4 Optional Software Related Technical Services
For Category 1,2, and 3 each reseller may resell additional Technical Software Related
Services provided by the Publisher for the Category or by a Publisher's Top Tier Level
Certified Partner as listed below. These services shall be priced separately and are in
addition to mandatory value add services provided by the reseller and included in their
mandatory service offerings.
Nature of the Technical Services. The technical services go beyond providing software
product information and assistance, but include work products and deliverables
provided by trained, qualified and Publisher certified technicians to perform software
related services needed and specified in a scope of work by the purchasing entity.
Services are limited to:
• Commissioning and Decommissioning Services, including
installation
• Implementation Services
• Maintenance Services
• Configuration Services
• Software Integration Services, and
• training services.
No other Software Related Technical Services may be provided under this RFP award
unless specifically approved by LSCA as within the scope.
Out of scope services. Stand-alone services not related to a software product
purchased or licensed through the Reseller, staff augmentation (stand-alone hourly
based IT Services), services provided on a time_ and_ material basis with no fixed pricing.
Questions about services included in the scope shall be determined by the LSCA.
2.5.5 Training, General
For Category I, 2 and 3 training may be in the form of online tutorials for basic
installation and web -based training for software operation, basic phone support.
Training may also include in -person or webinar training.
Provision of information on how to access a Software Publisher's "Help Desk" (either
telecom or web -based) for basic use questions.
2.5.6 Customer Service and Representation, General
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Request for Proposal
Arizona 7ntof
Adm
Solicitation No. BPM002338
State Proc
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
For Category I, 2 and 3 resellers shall provide customer service representation as
follows:
2.5.6.1 Dedicated Representation and Timely Response. Reseller shall provide
dedicated representatives for each Participating Entity. Such
representative shall become familiar with the Purchasing Entity (for
example, a state and its cooperative partners) and shall provide a single
point of contact for quote assistance, offer software recommendations,
track and report on renewal deadlines, and serve as a contact point for
the LSCA. Reseller shall commit to returning phone calls or responding
to emails within two (2) business days.
2.5.6.2 Problem Escalation. The Reseller shall provide an incident escalation
path for each Participating Entity, showing on that Participating Entity's
website, the name, contact information, and role of individuals to
whom problems should be escalated if the problems are not resolved by
primary assigned contacts.
2.5.6.3 Product purchasing trends. The Reseller shall speak with LSCA and
sourcing team annually to review usage and discuss possible revisions
of the categorization of Publishers based upon actual sales volume or
other changes.
2.5.7 Contract Reviews.
2.5.7.1 Reseller is expected to conduct quarterly reviews of all sales volumes
and report sales figures and savings from Publisher's list price, by
Publisher and by PA, as well as observed trends or purchasing patterns,
and to present the information to the LSCA.
2.5.7.2 At the discretion of the individual Purchasing Entities, an equivalent
review, limited to that entity, shall be presented to the Purchasing
Entity.
2.5.7.3 All awardees under this contract shall meet once a year with the LSCA
and Sourcing Team to review usage and discuss possible revisions of the
categorization of Publishers based upon actual sales volume, and to
discuss any service concerns, industry trends, and the effectiveness of
the contract.
• Reseller is expected to conduct a customer satisfaction survey
and an audit prior to this discussion and be prepared to discuss
the results, and provide reports, at this review. At a minimum,
the audit shall report address quoting and billing accuracy, and
any Reseller Cost that exceeds a Publisher's List price for that
item.
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Request for Proposal
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Solicitation No. BPM002338
State Proc
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
• Based on historical sales volume information, Reseller should be
prepared to discuss potential cost savings opportunities which
could be passed through to Purchasing Entities .
• In a renewal year, the annual review shall take place prior to
contract extensions.
2.5.8 Interactions with Software Publishers, General
For Categories 1,2 and 3, resellers shall provide interaction with the respective software
Publishers to include:
2.5.8.1 Best Interests of Purchasing Entity. Reseller would represent the best
interests of the Purchasing Entity in negotiating or otherwise working
with Publishers for such items as: maximizing cost savings with best use
of volume or enterprise license agreements, better pricing on individual
volume buys, maximizing the value of software bundling options, and
taking advantage of Publishers' specials, promotions, coupons or other
savings opportunities.
2.5.8.2 Liaison with Publisher. A Purchasing Entity may establish, in their
individual PA, the ability for Reseller to arrange with the software
Publisher or software Publisher's designee for Enterprise Agreements,
which may include implementation, training, support, maintenance and
other services directly related to the software purchase. The provision
of said services shall be under a separate Enterprise Agreement
between the Purchasing Entity and the applicable parties and terms of
the Master Agreement and Participating Addendum would flow down
into the Enterprise Agreement.
2.5.9 Purchasing Entity Utilization of Local Partners, General
For Categories 1,2, and 3, the Reseller may offer Partners (Sub -Contractors) to provide
additional services in support of this Contract, if submitted as a part of the Resellers
response to this Request for Proposal, or after award of an MPA, if approved by a
Participating Entity. The partners may provide the following:
■ Software Related Technical Services
■ Optional Value Added Services
If the Reseller chooses to allow partners to provide administrative services as noted
above, Reseller has the responsibility to vet or ensure the partners capabilities including
their financial systems and business processes to accept and process contract
obligations and financial documents timely and accurately. By listing a company as a
partner, the terms and conditions set forth in Special Terms and Conditions 3.10
Subcontracts shall apply to the relationship between the Reseller and partner(s). The
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Request for Proposal
Arizona Department of
Administration
Solicitation No. BPM002338
State Procurement Office
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
ultimate responsibility for the performance of these partners rests with the Contractor
A Participating Entity or Purchasing Entity shall not be obligated or forced to utilize a
partner(s) or compensate a partner(s) directly.
2.5.10 Reporting
2.5.10.1 Standard Reports
Individual Participating Entities or Purchasing Entities may require their
own standard reports, such as report on savings. Reseller shall provide
these reports at the intervals, and in the format, as reasonably
requested by the entity. Reseller shall advise of standard reports which
they can provide, and work with Participating Entities and Purchasing
Entities on additional standard reports.
2.5.10.2 Online Reports
The SVAR shall be able to provide online, real time, reporting
capabilities using website established for the state. These reports may
include Back Order or Current Order Status reports. In addition, the
system shall be able to provide the ability for the User agency to
create custom reports. The requesting Purchasing Entity shall be able
to select specific fields and create a necessary report for their specific
needs. Data Fields shall include, but not be limited to, purchasing
entity, Purchase Order Number, Order date, Invoice date, Publisher,
Publisher Part Number, Software Reseller's Part Number, Description,
Quantity Shipped, Unit actual price, Extended Price, Sales Tax and
order total. Reports shall be able to be shown online as well as
emailed to the requesting Participating State, if requested. Examples
of Reseller's standard and online reports shall be submitted with the
offer.
2.5.10.3 Custom Reports
Participating Entity and SVAR may mutually agree to include terms and
conditions and pricing for the development and provision of customized
reports as an optional service in a Participating Addendum.
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Request for Proposal
Arizona Department of
Administration
Solicitation No. BPM002338
State Procurement Office
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
The following Exhibit applies to the Scope of Work:
SECTION 2-A_EXHIBIT 1 — LIST OF ENTITIES WITH INTENT TO PARTICIPATE
SECTION 2-A_EXHIBIT 2 — SAMPLE STATE TERMS & CONDITIONS
SECTION 2-A EXHIBIT 3 — HISTORICAL SPEND
End of Section 2-A
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Request for Proposal
Arizona Department of
Administration
Solicitation No. BPM002338
State Procurement Office
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
PART 2 of the Solicitation Documents
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Arizona Department of
Administration
Solicitation No. BPM002338
State Procurement Office
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
SECTION 2-13: Pricing Document
3.1 Pricing
3.1.1 CONTRACTOR'S BEST PRICING. The prices and discounts set out in Part 3 of the Solicitation
Documents, Section 3-B Offer Forms, ATTACHMENT 4—PRICING SHEET, including any
subsequently agreed -upon amendment to it (the "Contract Pricing"), shall be
considered ceiling pricing. Reseller may offer additional discounts based on the volume
of a purchase or other factors. Reseller warrants that the pricing extended through this
contract shall be equal to or better than the lowest prices and largest discounts, both
separately and in combination, at which Reseller sells equivalent services, items of
equipment and materials, given equivalent or reasonably -equivalent quantity of
purchase.
1. That price -plus -discount equivalence ("Contractor's Best Pricing") is intended to be
irrespective of whether or not those other sales have special purchase terms,
conditions, rebates or allowances.
2. If Contractor's Best Pricing for equivalent services, items of equipment and
materials is better than the Contract Pricing, then Reseller agrees to adjust the
Contract Pricing to match the Contractor's Best Pricing for all sales related to the
Reseller made after the date when the Contractor's Best Pricing was first better
than the Contract Pricing.
3. For clarification of intent, that date is intended to be the date when the difference
first occurred, which might have been before the difference was first identified. If it
was before, then Reseller agrees to charge at less than the Contract Pricing until the
extended difference that would have been realized (i.e., if the Contractor's Best
Pricing had been applied when it should have been) has been settled.
3.1.2 PRICING -ALL-INCLUSIVE:
Pricing is all-inclusive, including any ancillary fees and costs required to accomplish
the Scope of Work and all aspects of Contractor's offer as accepted by State. Details
of service not explicitly stated in the Scope of Work or in Contractor's Offer, but
necessarily a part of, are deemed to be understood by Reseller and included herein.
All administrative, reporting, or other requirements, all overhead costs and profit
and any other costs toward the accomplishment of the requirements in the Contract
are included in the pricing provided.
3.1.3 PRICE INCREASES:
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4.D.b
Request for Proposal
Arizona Department of
Administration
Solicitation No. BPM002338
State Procurement Office
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
1. Initial Contract prices shall be honored for the full term of the Contract, unless a
price adjustment is approved in accordance with the process outlined in this
section. The Lead State may review a fully documented request for a price increase
The requested increase shall be in writing and be based upon a cost increase to the
Reseller that was clearly unpredictable at the time of the offer and is directly
correlated to the price of the product concerned. Reseller shall provide conclusive
evidence of a need for any price increases such as being substantiated by the
Producer Price Index, Consumer Price Index, or similar pricing guide.
(a) All written requests for price adjustments made by the Reseller shall be initiated
thirty (30) days in advance of any desired price increase to allow the Lead State
sufficient time to make a fair and equitable determination to any such requests.
This may be waived upon proper documentation demonstrating the urgency of
the request.
(b) All price adjustments shall be implemented by a formal contract amendment
The Lead State shall determine whether the requested price increase or an
alternate option is in its best interest.
3.1.4 PRICE REDUCTIONS:
1. Price reductions shall be immediately passed along to the Lead State and may be
submitted in writing to the Lead State for consideration at any time during the
Contract period. The Reseller shall offer the Lead State a price reduction on the
Contract product(s) concurrent with a published price reduction made to other
customers.
2. The Lead State at its own discretion may accept a price reduction. The price
reduction request shall be in writing and include documentation showing the actual
reduction of cost. Sales promotions requests shall include difference in pricing,
begin, and end date of promotion along with the products covered.
3.1.5 ADDITIONAL CHARGES:
1. Any charges or fees not delineated in the Contract may not be added, billed, or
invoiced under the Contract.
3.1.6 TRAVEL.
1. Reseller shall obtain written approval from the Participating Entity or Purchasing
Entity, as applicable, prior to any travel under the Contract in which reimbursement
of expenses shall be requested. Reseller shall be reimbursed for actual expenses
incurred in accordance with the current rates specified in the Participating Entity or
Purchasing Entity's Travel Policy. Reseller shall itemize all per diem and lodging
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4.D.b
Request for Proposal
Arizona Department of
Administration
Solicitation No. BPM002338
State Procurement Office
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
charges. The Purchasing Entity may reject any claim for travel reimbursement
without prior written approval.
3.2 Funding
No particular funding considerations apart from paragraph 4.4 [Availability of Funds for the Next
State fiscal year] and 4.5 [Availability of Funds for the current State fiscal year] of the Uniform
Terms and Conditions have been identified for the Lead State as of the Solicitation date.
3.3 Invoicing
3.3.1 INVOICES GO TO PURCHASING ENTITY. Reseller shall submit all billing notices or invoices to
the Purchasing Entity (e.g. Eligible Agency or Co -Op Buyer) at the address indicated on
the applicable Order document or by utilizing the Purchasing Entity's purchasing
tool/process.
3.3.2 MINIMUM INVOICE REQUIREMENTS. Every invoice shall include the following information:
Item
Bill -to name and address
Required
•
Reseller name and contact information
•
Remit -to address
State contract number
•
Order number (typically The State's e-Procurement System PO #)
Invoice number and date
•
Date the items shipped or services performed
•
Applicable payment terms
•
Contract line item number
•
Contract line item description
•
When required by the Purchasing Entity, include a complete description
of monthly usage at full enterprise detail level as provided by the
publisher
SaaS only
Quantity delivered or performed
•
Line item unit of measure
•
Reseller Cost as invoiced by Publisher, if applying a Reseller markup
•
Reseller markup %
•
MSRP or List Price, if applying a Reseller discount
•
Discount off list or catalog
•
Final Item price to Customer
•
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Request for Proposal
Arizona Department of
Administration
Solicitation No. BPM002338
State Procurement Office
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
Extended pricing
'
Taxes (as a separate invoice line item)
•
Upcharge shipping/freight, etc. (as a separate invoice line item)
Materials only
Total invoice amount due
•
3.3.3 NO INVOICE WITHOUT AUTHORIZATION. Reseller shall not seek payment for any:
1. Materials or Services that have not been authorized on an acknowledged Order;
2. Expediting, overtime, premiums, or upcharges absent Purchasing Entity's express prior
approval; or
3. Materials or Services that are the subject of a Contract Amendment that has not been
fully signed.
3.3.4 PRE -INVOICE REVIEW For all SaaS monthly invoices, when required by the Purchasing
Entity, provide a summary -level invoice and a more -detailed invoice that reconciles
with the deepest level of detail provided by the Publisher that demonstrates usage at
levels acceptable to the Purchasing Agency. If a more -detailed invoice is required by
the Purchasing Entity, provide an example for approval by the Purchasing Entity before
the first billing.
3.3.5 SUBMITTING INVOICES. Reseller shall submit an invoice to the Purchasing Entity or Co -Op
Buyer using the form and/or process provided or required by the ordering Purchasing
Entity/Customer (Eligible Agency or Co -Op Buyer). Every invoice shall be signed by
Contractor's authorized representative and accompanied by all supporting information
and documentation required by the Contract and applicable laws. Upon request,
Reseller shall provide evidence supporting the stated Reseller Cost shown on an
invoice.
3.3.6 DEFECTIVE INVOICES. Without prejudice to its other rights under the Contract or further
obligation to Reseller, the Purchasing Entity (Eligible Agency or Co -Op Buyer) may, at its
discretion, reject any materially defective invoice.
1. The Purchasing Entity (Eligible Agency or Co -Op Buyer) shall notify Reseller within 5
(five) business days after receipt if it determines an invoice to be materially
defective.
2. Invoices shall be deemed automatically rejected upon delivery if they:
(a) are sent to an incorrect address;
(b) do not reference the correct State contract number; or
(c) are payable to any Person other than the Reseller.
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Arizona Department of
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Solicitation No. BPM002338
State Procurement Office
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
3. The Purchasing Entity (Eligible Agency or Co -Op Buyer) shall have no obligation to
pay against a defective invoice unless and until Reseller has re -submitted it free of
defects.
3.4 Payments
3.4.1 PAYMENT. The applicable Purchasing Entity or Co -Op Buyer shall pay undisputed amounts
due to Reseller within the time period specified in Section 4.0 Costs and Payments of
the Uniform Terms and Conditions
3.4.2 JOINT CHECKS OR DIRECT PAY. applicable Purchasing Entity or Co -Op Buyer may, but is
under no obligation to, pay by joint check or to pay directly to any SubReseller or other
creditor to whom any portion of Contractor's requested payment is owed.
3.4.3 RECOVERY OF OVER -PAYMENT. If applicable Purchasing Entity or Co -Op Buyer determines
that an over -payment has been made to Reseller on any prior invoice, it shall inform
Reseller of the amount and date of the over -payment and may deduct the over -paid
amount from amounts then or thereafter due to Reseller.
3.4.4 PAYMENTS TO SUBCONTRACTORS. Reseller shall make payment of all undisputed amounts
due to Subcontractors within thirty (30) days of receipt of funds from applicable
Purchasing Entity or Co -Op Buyer applicable to their services.
3.4.5 PURCHASING CARD. Applicable Purchasing Entity or Co -Op Buyer may pay invoices for
some or all Orders using a purchasing card. Any and all fees related to payment using a
Purchasing Card are the responsibility of Reseller. Unless otherwise stated in the
Contract there shall be no additional fees or increase in prices associated with this
method of payment.
3.4.6 AUTOMATED CLEARING HOUSE. Applicable Purchasing Entity or Co -Op Buyer may pay
invoices for some or all Orders through an Automated Clearing House (ACH). In order to
receive payments in this manner from Eligible Agencies in the State of Arizona, Reseller
shall complete an ACH Vendor Authorization Form (form GAO-618) within 30 (thirty)
days after the effective date of the Contract. The form is available online at:
https://gao.az.gov/afis/vendor-information
3.5 Exhibits to the Pricing Document
■ NONE
End of Section 2-B
PART 2 of the Solicitation Documents
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Solicitation No. BPM002338
State Proc
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
SECTION 2-C: Special Terms and Conditions
The Special Terms and Conditions modify the Uniform Terms and Conditions and its Appendices. It can modify them by replacing, deleting,
appending to, or revising the text of an existing provision or by inserting a new paragraph into an existing article. No other document
modifies or adds to the Uniform Terms and Conditions, except as may subsequently be otherwise and expressly agreed and incorporated
by Contract Amendment.
1.0 Definition of Terms
As used in the Contract, the terms listed below are defined as follows:
1.1 Acceptance
"Acceptance" means the document headed "Offer and Acceptance Form" bearing the State
contract number once Procurement Officer has signed it to signify (1) State's formal acceptance
of the Accepted Offer and (2) the formation of the Contract. For clarity of intent, the foregoing is
not to be confused with the term "acceptance" used throughout the Contract in the context of
delivery, inspection, etc., with respect to Materials or Services.
"Acceptance" is defined by the applicable commercial code, except Acceptance of a Product for
which acceptance testing is not required shall not occur before the completion of delivery in
accordance with the Order, installation, if required, and a reasonable time for inspection of the
Product.
1.2 Accepted Offer
If State did not request a Revised Offer, then "Accepted Offer" means the Initial Offer.
If State did request a Revised Offer but not a Best and Final Offer, then "Accepted Offer" means
the latest Revised Offer.
If State requested a Best and Final Offer, then "Accepted Offer" means the Best and Final Offer.
1.3 Appliance
"Appliance" means a separate and discrete hardware device with integrated software
(firmware), specifically designed to provide a specific computing resource. For the purposes of
this solicitation only an "Appliance" which is the sole means of obtaining the Software product is
allowable.
1.4 Arizona Procurement
"Arizona Procurement Code, "A.R.S.," and "A.A.C." are each defined in the Instructions to
Code; A.R.S. ; A.A.C.
Offerors.
1.5 Arizona TPT
"Arizona TPT" means Arizona Transaction Privilege Tax. For information, refer to the Arizona
Department of Revenue (DOR) website at:
https://www.azdor.gov/business/transactionprivilegetax.aspx.
1.6 Attachment
"Attachment" means any item that:
1. the Solicitation required Offeror to submit as part of the relevant Offer
(e.g., Initial Offer, Revised Offer, or BAFO);
2. was attached to an Offer when submitted; and
3. was included in the Accepted Offer.
"Attachment" means any item the Solicitation requires an Offeror to submit as part of the Offer.
1.7 Awarded Reseller or
"Awarded Reseller" or "Contractor" means a Software Value -Added Reseller who is awarded
Contractor
under this solicitation, has a fully -executed (MPA and PA-s) contract, and is delivering products
or performing services under the terms and conditions set forth in this Master Agreement.
1.8 Best and Final Offer
"Best and Final Offer (BAFO)" means a revision to an Offer submitted after negotiations are
(BAFO)
completed that contains the Offeror's most favorable terms for price, service, and products to be
delivered.
1.9 Commercial Off the "Commercial Off the Shelf' ("COTS") for the purposes of this solicitation means Software that
Shelf (COTS) already exists and is available to the general public in the commercial marketplace. COTS
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Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
products are designed to be implemented easily into existing systems without the need for
customization
1.10 Contract Amendment
"Contract Amendment" means a document signed by Procurement Officer that has been issued
for the purpose of making changes to the Contract after execution.
1.11 Contract Terms and
"Contract Terms and Conditions" means the Special Terms and Conditions and these Uniform
Conditions
Terms and Conditions taken collectively.
1.12 Contractor Indemnitor
"Contractor Indemnitor" means Contractor or any of its owners, officers, directors, agents,
employees, or Subcontractors.
1.13 Co -Op Buyer
"Co -Op Buyer" means a member of the State Purchasing Cooperative that has entered into a
"Cooperative Purchasing Agreement" with the Arizona Department of Administration State
Procurement Office under A.R.S. § 41-2632. Unless there is an applicable Cooperative Purchasing
Agreement in effect at the time, a State Purchasing Cooperative member cannot be a Co -Op
Buyer. For reference, "Co -Op Buyer" is to be construed as encompassing "eligible procurement
unit"
1.14 Eligible Agency
If the Special Terms and Conditions indicate that the Contract is a "single -agency" contract, then
"Eligible Agency" means the particular State of Arizona agency, university, commission, or board
identified therein. If the Special Terms and Conditions indicate that the Contract is a "statewide"
contract, then "Eligible Agency" means any State of Arizona department, agency, university,
commission, or board.
1.15 Embedded Software
"Embedded Software" means one or more software applications which permanently reside on a
computing device.
1.16 End -User License
"End -User License Agreement (EULA)" is a legal contract between the manufacturer (Publisher)
Agreement (EULA)
and the end User of an application that details how the software can and cannot be used.
1.17 eProcurement
"eProcurement (Electronic Procurement)" means conducting all or some of the procurement
(Electronic
function over the Internet. Point, click, buy and ship Internet technology is replacing paper -based
Procurement)
procurement and supply management business processes. Elements of eProcurement also
include
Invitation for Bids, Request for Proposals, and Request for Quotations.
1.18 Excluded Software
"Excluded Software Publishers" means a Software Publisher who is unwilling to do business with
Publishers
a Reseller.
1.19 Exhibit
"Exhibit" means any document or object labeled as an Exhibit in the Solicitation or placed in the
Exhibits section of the Solicitation.
1.20 Indemnified Basic
"Indemnified Basic Claims" means any and all claims, actions, liabilities, damages, losses, or
Claims
expenses, including court costs, attorneys' fees, and costs of claim processing, investigation and
litigation, for bodily injury or personal injury, including death, or loss or damage to any real or
tangible or intangible personal property, collectively. See paragraph 6.3.
1.21 Instructions to
"Instructions to Offerors" is Section 3-A of Part 3 of the Solicitation Documents.
Offerors
1.22 Intellectual Property "Intellectual Property" means any and all patents, copyrights, service marks, trademarks, trade
secrets, trade names, patentable inventions, or other similar proprietary rights, in tangible or
intangible form, and all rights, title, and interest therein.
1.23 Lead State
"Lead State" means the State centrally administering any resulting Master Agreement(s).
1.24 Lead State Contract
"Lead State Contract Administrator" ("LSCA") means the Procurement Officer for the Master
Administrator (LSCA)
Agreement.
1.25 Master Agreement
"Master Agreement (MPA)" means the contractual agreement executed between the winning
(MPA)
(awarded) contractor(s) and the Lead State conducting the procurement on behalf of NASPO
ValuePoint.
1.26 Non -Perpetual License
"Non -perpetual license" or "Subscription License" is a temporary license that provides the right
or Subscription
to use a particular licensed product until the end of the license -agreement term.
License
1.27 Order "Order" means the instrument by which State authorizes Contractor to perform some or all of
the Work. Whether the Contract will have one Order or many Orders depends the scope of the
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Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
Contract and how State will use it. The Special Terms and Conditions provide that information.
Any of the following is to be construed as being an "Order":
1. "Release" or "Release Purchase Order" in The State's e-Procurement System;
2. "task order", "service order," or "job order" when a Release Purchase Order for Services
has already been committed in The State's e-Procurement System; or
"Purchase order" for buying by Co -Op Buyers, if co-op buying applies.
1.28 Order or Purchase
"Order" or "Purchase Order" means any purchase order, sales order, contract or other document
Order
used by a Purchasing Entity to order the products.
1.29 Participating
"Participating Addendum" means a bilateral agreement executed by a Contractor and a
Addendum
Purchasing ] Entity incorporating this Master Agreement and any other additional Purchasing
Entity -specific language or other requirements, e.g. ordering procedures specific to the
Participating State, other terms and conditions.
1.30 Perpetual License
"Perpetual license" means a license which is everlasting and valid if the software is being used in
accordance with the license -agreement requirements.
1.31 Person
"Person" means any corporation, business, individual, union, committee, club, or other
organization or group of individuals
1.32 Pricing Document
"Pricing Document" means Section 2-B of Part 2 of the Solicitation Documents, provided that, if
there is no such Section in the Contract, then "Pricing Document" is to be construed as referring
to whatever item in the Contract contains the contracted pricing and payment provisions.
1.33 Product
"Product" means any equipment, software (including embedded software), documentation,
service or other deliverable supplied or created by the Contractor pursuant to this Master
Agreement. The term Products, supplies and services, and products and services are used
interchangeably in these terms and conditions.
1.34 Publisher
"Publisher" means a software manufacturer who owns the intellectual property rights of the
software.
1.35 Purchasing Entity
"Purchasing Entity" Means a state (as well as the District of Columbia and U.S. territories), or
other eligible entity, public or non-profit, domestic or foreign, that issues a Purchase Order
against the Master Agreement and becomes financially committed to the purchase
"Purchasing Entity" means a state or other entity, public or non-profit, domestic or foreign, that
is eligible to participate under the Master Agreement and has properly executed a Participating
Addendum.
1.36 Purchasing Entity
"Purchasing Entity Contract Administrator" ("PECA") means the Procurement Officer for the
Contract
Purchasing Entity.
Administrator (PECA)
1.37 Reseller Cost
"Reseller Cost" means the invoice -verifiable price that the Reseller pays the Publisher or
Distributor to purchase Software on behalf of the Participating Entity. Reseller Cost should not
include any administrative or other mark-up costs. Unless a Publisher is not willing to sell directly
to a Reseller and instead utilizes a Distributor, the Reseller Cost must equal the invoice paid by
the Software Reseller to the Software Publisher.
1.38 Service Level
Service Level Agreement (SLA) means a written agreement between both the Purchasing Entity
Agreement
and the Contractor that is subject to the terms and conditions in this Master Agreement and
relevant Participating Addendum unless otherwise expressly agreed in writing between the
Purchasing Entity and the Contractor. SLAB should include: (1) the technical service level
performance promises, (i.e. metrics for performance and intervals for measure), (2) description
of service quality, (3) identification of roles and responsibilities, (4) remedies, such as credits, and
(5) an explanation of how remedies or credits are calculated and issued.
1.39 Software
"Software" means the computer program, including media and associated documentation.
1.40 Software as a Service "Software as a Service" ("SaaS") means software that is owned, delivered and managed remotely
(SaaS) by one or more providers. The provider delivers software based on one set of common code and
data definitions that is consumed in a one -to -many model by all contracted customers at any
time on a pay -for -use basis or as a subscription based on use metrics.
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Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
1.41 Software Licensing
"Software Licensing" means allowing an individual or group to use a piece of software.
1.42 Software Maintenance
"Software Maintenance and Support" means any software upgrades, annual updates, patches
and Support
and fixes needed to improve functionality and keep the software in working order.
1.43 Software Value -Added
"Software Value -Added Reseller" ("SVAR") means a company that resells software and offers
Reseller (SVAR)
value beyond order fulfillment.
1.44 Solicitation
"Solicitation Amendment" means a change to the Solicitation issued by the Procurement Officer
Amendment
1.45 State
With respect to the Contract generally, "State" means the State of Arizona and its department,
agency, university, commission, or board that has executed the Contract. With respect to
administration or rights, remedies, obligations and duties under the Contract for a given Order,
"State" means each of Eligible Agency or Co -Op Buyer who has issued the Order.
1.46 State Indemnitees
"State Indemnitees" means, collectively, the State of Arizona, its departments, agencies,
universities, commissions, and boards and, and their respective officers, agents, and employees.
1.47 The State's e-
"The State's e-Procurement System" means State's official electronic procurement system,
Procurement System
established pursuant to A.A.C. 112-7-201 as set forth in the Arizona Department of
Administration State Procurement Office policy document Technical Bulletin No. 020, The
State's e-Procurement System —The Official State eProcurement System.
NOTE (1): Technical Bulletin No. 020 is available online at:
https://spo.az.goy/administration-policy/state-procurement-resource/procu rement-
regulations
1.48 Subcontractor "Subcontractor" has the meaning given in A.R.S. § 41-2503(38), which, for convenience of
reference only, is "... a person who contracts to perform work or render service to ... [C]ontractor
or to another [S]ubcontractor as a part of a contract with a state governmental unit ..."The
Contract is to be construed as "a contract with a state governmental unit" for purposes of the
definition. For clarity of intent, a Person carrying out any element of the Work is a Subcontractor
from the moment they first carry out that element of the Work regardless of whether or not a
Subcontract exists then or subsequently.
1.49 Volume License "Volume License Agreements (VLAs)" means an agreement with a Software Publisher wherein
Agreements (VLA) the Participating State's total expected purchasing over a period of time is considered in
establishing the discount level.
1.50 Work
"Work" means the totality of the Materials and the Services and all the acts of administration,
creation, production, and performance necessary to fulfill and incidental to fulfilling all of
Contractor's obligations and duties under the Contract in conformance with the Contract and
applicable laws.
1.51 Commissioning
"Commissioning Services" means is the process of assuring that all components software are
Services
designed, installed, tested, operated, and maintained according to the operational requirements
of the Publisher or Purchasing Entity
1.52 Implementation
"Implementation Services" means all the post -sale processes involved for software to operate
Services
properly in its environment, including analyzing requirements, installation, configuration,
customization, running, testing, systems integrations, user training, and delivery.
1.53 Maintenance Services
"Maintenance Services" means long-term and pay-as-you-go (incident -based) support to include
remote troubleshooting and support provided via the telephone and online channels, as well as
installation assistance and basic usability assistance. In some cases, maintenance services may
include new product installation services, installation of product updates, migrations for major
releases of software and other types of proactive or reactive on -site services.
1.54 Configuration Services
"Configuration Services" means support in determining the manner in which software
components are arranged to make up the computer system.
1.55 Software Integration
"Software Integration Services" means the process of bringing together various types of software
Services
sub -systems so that they create a unified single system.
1.56 Participating Entity "Participating Entity" means a state, or other legal entity, properly authorized to enter into a
Participating Addendum.
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Request for Proposal
Arizona Department of
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Solicitation No. BPM002338
State Procurement Office
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
2.0 Contract Interpretation
2.1 Usage Where the Contract:
1. assigns obligations to Contractor, any reference to "Contractor" is to be construed to be a
reference to "Contractor and all Subcontractors, whether they are first -tier
subcontractors, sub -subcontractors, suppliers, sub -suppliers, consultants, or sub -
consultants, as well as all of Contractor's and the Subcontractors' respective agents,
representatives, and employees" in every instance unless the context plainly requires
that it is be a reference only to Contractor as apart from Subcontractors;
2. Uses the permissive "may" with respect to a party's actions, determinations, etc., the
term is to be interpreted as in A.A.C. R2-7-101(31) [Definitions]. For clarity of intent, any
right given to State using "State may" or a like construction denotes discretion and
freedom to act so far as any regulatory or operative constraints permit in the relevant
circumstances, provided that: (a) where written "may, at its discretion," the discretion
extends to whatever is most advantageous to State; and (b) where written only as "may,"
the discretion is constrained by what is fair, reasonable, and as accommodating of the
respective best interests of both parties as practicable under the circumstances;
3. uses the imperative "shall" with respect to a party's actions, duties, etc., the term is to be
interpreted as in A.A.C. R2-7-101(43) [Definitions]. Conversely, the phrase "shall not" is to
be interpreted as an imperative prohibition.
4. uses the term "must" with respect to a requirement, criterion, etc., the term is to be
interpreted as conveying compulsion or strict necessity, and is to be read as though
written "must, if [the subject] is to be entitled to have (the object] considered or credited
as being compliant with, conforming to, or satisfying [the requirement criterion,
constraint etc.], otherwise, [the object] will be considered or debited as being
non -compliant non -conforming, or unsatisfactory for its Contract -related purposes" in
every instance;
5. uses the term "might" with respect to an event, outcome, action, etc., the term is to be
interpreted as conveying contingency or non -discretionary conditionality; and
6. uses the term "will" or the phrases "is to be" or "are to be" with respect to an event,
outcome, action, etc., the term or phrase is to be interpreted as conveying such certainty
or imperativeness that "shall" is either unnecessary or irrelevant in that instance.
2.2 Contract Order of COMPLEMENTARY DOCUMENTS. All of the documents forming the Contract are complementary.
Precedence If certain work, requirements, obligations, or duties are set out only in one but not in another,
Contractor shall carry out the Work as though the relevant work, requirements, obligations, or
duties had been fully described in all, consistent with the other documents forming the Contract
and as is reasonably inferable from them as being necessary to produce complete results.
CONFLICTS. In case of any inconsistency, conflict, or ambiguity among the documents forming
the Contract and their provisions, they are to prevail in the following order, descending from
most dominate to most subordinate, provided that, among categories of documents or
provisions having the same rank, the document or provision with the latest date prevails.
Information being identified in one document but not in another is not to be considered a
conflict or inconsistency.
(a) A Participating Entity's Participating Addendum ("PA") and any amendments to the
PA.
(b) the Master Agreement ("MPA") Solicitation Documents, including the mutually
agreed upon changes detailed in Attachment 5-13 Conformance Statements of the
Accepted Offer, in the following order:
(1) Special Terms and Conditions;
(2) Exhibits to the Special Terms and Conditions;
(3) Uniform Terms and Conditions;
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Solicitation No. BPM002338
State Procurement Office
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
(4) Scope of Work;
(5) Exhibits to the Scope of Work;
(6) Pricing Document;
(7) Exhibits to the Pricing Document;
(8) Specifications; and
(9) any other documents referenced or included in the Solicitation;
(c) Orders, in reverse chronological order; and
(d) Accepted Offer (with the exception of Attachment 5-B Conformance Statements,
which is integrated in Sub -Section (b) above).
ATTACHMENTS AND EXHIBITS. For clarity of intent, if an item was an Attachment in the
Solicitation Documents or an Offer (either Initial, Revised, Best and Final, or Accepted) and was
subsequently made into an Exhibit, or its content was incorporated into one of the other
Contract documents, then that Attachment no longer exists contractually as an "Attachment"
since it has at that point been made into some other Contract document. In every other case, an
Attachment and the Offeror data therein remain part of the Accepted Offer for purposes of
precedence and contractual effect.
2.3 Independent
Contractor is an independent contractor and shall act in an independent capacity in performance
Contractor
under the Contract. Neither party is or is to be construed as being to be the employee or agent of
the other party, and no action, inaction, event, or circumstance will be grounds for deeming it to
be so.
2.4 Complete
The Contract, including any documents incorporated into the Contract by reference, is intended
Integration
by the parties as a final and complete expression of their agreement. There are no prior,
contemporaneous, or additional agreements, either oral or in writing, pertaining to the Contract.
3.0 Contract Administration and Operation
3.1 Term of Contract
The term of the Contract will commence on the date indicated on the Acceptance and continue
for five (5) years unless cancelled, terminated, or permissibly extended.
3.2 Contract
State may at its discretion extend the initial Contract term in increments of one year and do so
Extensions
up to two times, provided that, the maximum aggregate term of the Contract including
extensions cannot exceed the maximum aggregate term of seven (7) years.
3.3 Notices and
3.3.1 TO CONTRACTOR. Purchasing Entity shall:
Correspondence
(a) address all Contract correspondence other than formal notices to the email
address indicated as "Default for Type" for "General Mailing Address" in
Contractor's corresponding The State's e-Procurement System Vendor Profile; and
(b) address any required notices to Contractor to the "Contact Name and Title" at the
"Mailing Address" indicated on the Accepted Offer, as that address might have
been amended during the term of the Contract.
3.3.2 TO PURCHASING ENTITY. Contractor shall :
(a) address all Contract correspondence other than format notices to the email
address indicated in "Contact Instructions" in The State's e-Procurement System
Summary for State, or equivalent contact instructions as indicated by the
Purchasing Entity; and
(b) address any required notices to State to Procurement Officer, or the equivalent for
a Purchasing Entity, identified as "Purchaser" in the State's e-Procurement System
Summary at the following mailing address:
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
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Request for Proposal
Arizona Department of
Administration
Solicitation No. BPM002338
State Procurement Office
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
Or the equivalent for each Purchasing Entity; and
3.3.3 CHANGES. State, or Participating Entity, may change the designated Procurement
Officer, update contact information, or change the applicable mailing address by
Contract Amendment.
3.4 Signing of Contract Contractor's counter -signature — or "approval" in The State's e-Procurement System, or
Amendments equivalent eProcurement System of a Purchasing Entity, in the case of an amendment — is not
required to give effect if the Contract Amendment only covers either:
1. extension of the term of the Contract within the maximum aggregate term;
2. revision to Procurement Officer appointment or contact information; or
3. Modifications of a clerical nature that have no effect on terms, conditions, price, scope,
or other material aspect of the Contract.
In every case other than those listed in (I), (2), and (3) above, both parties' signature — or
"approval" in The State's e-Procurement System, or Purchasing Entity's equivalent system, in the
case of an Amendment — are required to give it effect.
3.5 Click Through Terms If either party uses a web based ordering system, an electronic purchase order system, an
and Conditions electronic order acknowledgement, a form of an electronic acceptance, or any software based
ordering system with respect to the Contract (each an "Electronic Ordering System"), the parties
acknowledge and agree that an Electronic Ordering System is for ease of administration only, and
Contractor is hereby given notice that the persons using Electronic Ordering Systems on behalf of
State do not have any actual or apparent authority to create legally binding obligations that vary
from the terms and conditions of the Contract. Accordingly, where an authorized State user is
required to "click through" or otherwise accept or be made subject to any terms and conditions
in using an Electronic Ordering Systems, any such terms and conditions are deemed void upon
presentation. Additionally, where an authorized State user is required to accept or be made
subject to any terms and conditions in accessing or employing any Materials or Services, those
terms and conditions will also be void.
3.6 Books and 3.6.1 RETAIN RECORDS. By A.R.S. § 41-2548(B), Contractor shall retain and shall contractually
Records require each Subcontractor to retain books and records relating for any cost and pricing
data submitted in satisfaction of § 41-2543 for the period specified in the statute.
3.6.2 RIGHT TO AUDIT. The retained books and records are subject to audit by State during
that period. By A.R.S. § 41-2548(B), Contractor shall retain and shall contractually
require each Subcontractor to retain books and records relating to performance under
the Contract for the period specified in the statute and those retained books and
records are subject to audit by State during that period.
3.6.3 AUDITING. Contractor or Subcontractor shall either make all such books and records
under subparagraphs 3.6.1 and 3.6.2 available to State at all reasonable times or
produce the records at a designated State office on State's demand, the choice of which
being at State's discretion. For the purpose of this paragraph, "reasonable times" are
during normal business hours and in such a manner so as to not unreasonably interfere
with normal business activities.
3.7 Contractor Licenses Contractor shall maintain current all federal, state and local licenses and permits required for the
operation of its business in general, for its operations under the Contract, and for the Work itself.
3.8 Inspection By A.R.S. § 41-2547, State may at reasonable times inspect the part of Contractor's or
and Testing Subcontractors' plant or places of business related to performance under the Contract.
Accordingly, Contractor agrees to permit (for itself) and ensure (for Subcontractors) access for
inspection at any reasonable time to its facilities, processes, and services. State may inspect or
test, at its own cost, any finished goods, work -in -progress, components, or unfinished materials
that are be supplied under the Contract or that will be incorporated into something to be
supplied under the Contract. If the inspection or testing shows non-conformance or defects, then
Contractor will owe State reimbursement or payment of all costs it incurred in carrying out or
contracting for the inspection and testing, as well as for any re -inspection or re -testing that might
be necessary. Neither inspection of facilities nor testing of goods, work, components, or
unfinished materials will of itself constitute acceptance by State of those things.
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Request for Proposal
Arizona Department of
Administration
Solicitation No. BPM002338
State Procurement Office
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
3.9 Ownership of 3.9.1 RIGHTS IN WORK PRODUCT. All intellectual property originated or prepared by
Intellectual Contractor pursuant to the Contract, including but not limited to, inventions,
Property discoveries, intellectual copyrights, trademarks, trade names, trade secrets, technical
communications, records reports, computer programs and other documentation or
improvements thereto, including Contractor's administrative communications and
records relating to the Contract, are considered work product and Contractor's
property, provided that, State has Government Purpose Rights to that work product as
and when it was delivered to State.
(a) "Government Purpose Rights" are:
i. the unlimited, perpetual, irrevocable, royalty free, non-exclusive, worldwide
right to use, modify, reproduce, release, perform, display, sublicense,
disclose and create derivatives from that work product without restriction for
any activity in which State is a party;
ii. the right to release or disclose that work product to third parties for any
State government purpose; and
iii. the right to authorize those to whom it rightfully releases or discloses that
work product to use, modify, release, create derivative works from the work
product for any State government purpose; such recipients being understood
to include the federal government, the governments of other states, and
various local governments.
(b) "Government Purpose Rights" do not include any right to use, modify, reproduce,
perform, release, display, create derivative works from, or disclose that work
product for any commercial purpose or to authorize others to do so.
3.9.2 JOINT DEVELOPMENTS. The parties may each use equally any ideas, concepts, know-
how, or techniques developed jointly during the course of the Contract, and may do so
at their respective discretion, without obligation of notice or accounting to the other
party.
3.9.3 PRE-EXISTING MATERIAL. All pre-existing software and other materials developed or
otherwise obtained by or for Contractor or its affiliates independently of the Contract or
applicable Purchase Orders are not part of the work product to which rights are granted
State under subparagraph 3.9.1 above, and will remain the exclusive property of
Contractor, provided that:
(a) any derivative works of such pre-existing material or elements thereof that are
created pursuant to the Contract are part of that work product;
(b) any elements of derivative work of such pre-existing material that was not created
pursuant to the Contract are not part of that work product; and
(c) Except as expressly stated otherwise, nothing in the Contract is to be construed to
interfere or diminish Contractor's or its affiliates' ownership of such pre-existing
materials.
3.9.4 DEVELOPMENTS OUTSIDE OF CONTRACT. Unless expressly stated otherwise in the
Contract, the Contract does not preclude Contractor from developing competing
materials outside the Contract, irrespective of any similarity to materials delivered or to
be delivered to State hereunder.
3.10 Subcontracts 3.10.1 INITIAL LIST. At the time of Contract execution, Contractor's candidate Subcontractors
were identified in Attachment 3-C to the Accepted Offer [Proposed Subcontractors].
Agreeing to them being included in the Accepted Offer signified Procurement Officer's
advance consent for Contractor to enter into a Subcontract with each candidate, which
Contractor shall do as promptly as necessary to ensure its ability to carry out the Work
in a timely manner.
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Administration
Solicitation No. BPM002338
State Procurement Office
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
3.10.2 ADDITIONAL NAMES. Contractor shall not enter into a Subcontract without first
obtaining Procurement Officer's written consent with any prospective Subcontractor
that (a) was not listed on Attachment 3-C at time of Contract execution or (b) is for any
Materials or Services categories other than the ones for which they were previously
consented. For either case (a) or (b), Contractor shall submit a written request
sufficiently in advance of the need date for those materials or services so that
performance under the Contract is not impaired. Procurement Officer may request any
additional information he or she determines is necessary to assess the submittal, and
may withhold consent pending it.
3.10.3 FLOW -DOWN. Contractor shall incorporate the provisions, terms, and conditions of the
Contract into every Subcontract by inclusion or by reference, as appropriate. When
making any post -execution consent requests, Contractor shall include its warrant that it
will do the same for the pending Subcontracts covered by the request. Entering into
Subcontracts will not relieve Contractor of any of its obligations or duties under the
Contract, including, among other things, the duty to supervise and coordinate the work
of Subcontractors. Nothing contained in any Subcontract will create or is to be
construed as creating any contractual relationship between State and the
Subcontractor.
3.11 Offshore Contractor shall only perform those portions of the Services that directly serve State or its clients
Performance and involve access to secure or sensitive data or personal client data within the defined
of Certain Work territories of the United States. Unless specifically stated otherwise in the Scope of Work, this
Prohibited paragraph does not apply to indirect or overhead services, redundant back-up services, or
services that are incidental to performance under the Contract. This provision applies to work
performed by Subcontractors at all tiers.
3.12 Orders 3.12.1 ORDER SUFFICIENCY. The Contract was awarded in accordance with the Arizona
Procurement Code; the transactions and procedures required by the code for
competitive source selection have been met. An Order issued that cites the correct State
contract number will suffice to authorize Contractor to provide the Materials and
perform the Services covered by that Order.
3.12.2 ORDER TERMS. All Orders are subject to the Contract Terms and Conditions; an Order
cannot modify the Contract Terms and Conditions.
3.12.3 ORDERS ARE OBLIGATORY. Until the expiration or earlier termination of the Contract,
State may issue and Contractor shall accept Orders that make proper reference to the
Contract and are permissible hereunder, provided that, Contractor is not obliged to
accept any Order that is not consistent with the then -current pricing, lead times,
specifications, or payment provisions of the Contract. Contractor shall fulfill and
complete any Orders that are begun but not yet completed as of expiration or earlier
termination of the Contract unless State instructs otherwise at the time.
3.12.4 SPECIAL CASE. In the special case where both the following conditions are true,
Procurement Officer's signature on the Acceptance is Contractor's authorization to
perform and therefore no Order is required: (a) the Contract is identified as being a
"single-agency/single-project" contract and (b) the Contract was created in The State's
e-Procurement System as something other than a "Master/ Blanket" type.
3.12.5 NO MINIMUMS OR COMMITMENTS. (a) Contractor shall not impose any minimum
dollar amount, item count, services volume, or services duration on Orders; (b) State
makes no commitment of any kind concerning the quantity or monetary value of activity
actually initiated or completed during the term of the Contract; (c) Contractor shall only
deliver or perform as authorized by Orders; and (d) State is not limited as to the number
of Orders it may issue for the Contract. For clarity of intent, the foregoing applies
equally whether an Eligible Agency issues the Order or, if applicable, a Co -Op Buyer
issues it.
3.12.6 NON -CONTRACTED MATERIALS OR SERVICES. Any attempt to knowingly represent for
sales, marketing, or related purposes that goods or services not specifically awarded are
under a State contract is a violation of the Contract and law.
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Request for Proposal
Arizona Department of
Administration
Solicitation No. BPM002338
State Procurement Office
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
3.13 NASPO ValuePoint The Contractor shall pay to NASPO ValuePoint, or its assignee, a NASPO ValuePoint
Administrative fees Administrative Fee of one -quarter of one percent (0.25% or 0.0025) no later than 60 days
and Reporting following the end of each calendar quarter. The NASPO ValuePoint Administrative Fee shall be
submitted quarterly and is based on all sales of products and services under the Master
Agreement (less any charges for taxes or shipping). The NASPO ValuePoint Administrative Fee is
not negotiable. This fee is to be included as part of the pricing submitted with proposal.
In addition to other reports that may be required by this solicitation, the Contractor shall provide
the following NASPO ValuePoint reports.
a. Summary Sales Data. The Contractor shall submit quarterly sales reports directly to NASPO
ValuePoint using the NASPO ValuePoint Quarterly Sales/Administrative Fee Reporting Tool found
at http://www.naspo.ora/WNCPO/Calculator.aspx. The SVAR Detailed Reporting Template is
provided as a reference (see see Exhibit 4(Four)). Any/all sales made under the contract shall be
reported as cumulative totals by state. Even if Contractor experiences zero sales during a
calendar quarter, a report is still required. Reports shall be due no later than 30 day following the
end of the calendar quarter (as specified in the reporting tool). B. Detailed Sales Data.
Contractor shall also report detailed sales data by: (1) state; (2) entity/customer type, e.g. local
government, higher education, K12, non-profit; (3) Purchasing Entity name; (4) Purchasing Entity
bill to and ship -to locations; (4) Purchasing Entity and Contractor Purchase Order
identifier/number(s); (5) Purchase Order Type (e.g. sales order, credit, return, upgrade,
determined by industry practices); (6) Purchase Order date; (7) Ship Date; (8) and line item
description, including product number if used. The report shall be submitted in any form
required by the solicitation. Reports are due on a quarterly basis and must be received by the
Lead State and NASPO ValuePoint Cooperative Development Team no later than thirty (30) days
after the end of the reporting period. Reports shall be delivered to the Lead State and to the
NASPO ValuePoint Cooperative Development Team electronically through a designated portal,
email, CD-ROM, flash drive or other method as determined by the Lead State and NASPO
ValuePoint. Detailed sales data reports shall include sales information for all sales under
Participating Addenda executed under this Master Agreement. The format for the detailed sales
data report is in shown in EXHIBIT III_Cooperative Contract Sales Reporting Data Requirements
and Data Format.
c. Reportable sales for the summary sales data report and detailed sales data report includes
sales to employees for personal use where authorized by the solicitation and the Participating
Addendum. Report data for employees should be limited to ONLY the state and entity they are
participating under the authority of (state and agency, city, county, school district, etc.) and the
amount of sales. No personal identification numbers, e.g. names, addresses, social security
numbers or any other numerical identifier, may be submitted with any report.
d. Contractor shall provide the NASPO ValuePoint Cooperative Development Coordinator with an
executive summary each quarter that includes, at a minimum, a list of states with an active
Participating Addendum, states that Contractor is in negotiations with and any PA roll out or
implementation activities and issues. NASPO ValuePoint Cooperative Development Coordinator
and Contractor will determine the format and content of the executive summary. The executive
summary is due 30 days after the conclusion of each calendar quarter.
e. Timely submission of these reports is a material requirement of the Master Agreement. The
recipient of the reports shall have exclusive ownership of the media containing the reports. The
Lead State and NASPO ValuePoint shall have a perpetual, irrevocable, non-exclusive, royalty free,
transferable right to display, modify, copy, and otherwise use reports, data and information
provided under this section.
NASPO ValuePoint Administrative Fee shall be based on the gross amount of all sales (less any
charges for taxes or shipping) at the adjusted prices (if any) in Participating Addenda.
3.14 NASPO ValuePoint a. The Contractor agrees to work cooperatively with NASPO ValuePoint personnel. Contractor
Cooperative Program agrees to present plans to NASPO ValuePoint for the education of Contractor's contract
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4.D.b
Request for Proposal
Arizona 7ntof
Adm
Solicitation No. BPM002338
State Proc
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
Marketing, Training, administrator(s) and sales/marketing workforce regarding the Master Agreement contract,
and Performance including the competitive nature of NASPO ValuePoint procurements, the Master agreement and
Review participating addendum process, and the manner in which qualifying entities can participate in
the Master Agreement.
b. Contractor agrees, as Participating Addendums become executed, if requested by ValuePoint
personnel to provide plans to launch the program within the participating state. Plans will
include time frames to launch the agreement and confirmation that the Contractor's website has
been updated to properly reflect the contract offer as available in the participating state.
c. Contractor agrees, absent anything to the contrary outlined in a Participating Addendum, to
consider customer proposed terms and conditions, as deemed important to the customer, for
possible inclusion into the customer agreement. Contractor will ensure that their sales force is
aware of this contracting option.
d. Contractor agrees to participate in an annual contract performance review at a location
selected by the Lead State and NASPO ValuePoint, which may include a discussion of marketing
action plans, target strategies, marketing materials, as well as Contractor reporting and
timeliness of payment of administration fees.
e. Contractor acknowledges that the NASPO ValuePoint logos may not be used by Contractor in
sales and marketing until a logo use agreement is executed with NASPO ValuePoint.
3.15 Multiple -Use Eligible Agencies may issue Orders for Services in several forms, all of which become final and
Provisions effective by a "Release Purchase Order" in The State's e-Procurement System. Orders issued by
Co -Op Buyers will be in whatever form the Co -Op Buyer normally uses. Regardless of origin,
Orders must cite the State contract number to be valid. State may, at its discretion in each
instance, determine the scope, schedule, and price for each Order in any of the following ways:
1. By choosing some or all of the Materials or Services items covered by the Contract for
which a price is established in the Pricing Document, then preparing an Order using
those prices (e.g., filling out an order form), and sending it to Contractor.
2. By instructing Contractor to provide a comprehensive proposal of item quantities,
combinations, etc., or services hours, personnel, etc., for a defined scope using those
established prices as a basis, then validating and negotiating the proposal with
Contractor and issuing an Order if and when reaching agreement.
3. As described in (2) above but requesting the proposal from both Contractor and other
vendors who are contracted within the applicable scope categories and locations, either
sequentially or concurrently, then selecting the proposal or proposals combination that
is most advantageous to State.
4. As described in (3) above but introducing ad -hoc commercial competition by making the
selection and ordering conditional on obtaining more favorable prices than the
contractually -established ones.
When evaluating the proposals under (3) and (4) above, State may select based on price (for
example, a quoted number of hours times the contracted or improved rate plus a fixed amount
for incidentals), by experience and qualifications (for example, having an office nearer the
required work location), or whatever combination thereof it determines is most appropriate to
the work in question.
3.16 Other State may undertake with its own forces or award other contracts to the same or other vendors
Contractors for additional or related work. In such cases, Contractor shall cooperate fully with State's
employees and such other vendors and carefully coordinate, fit, connect, accommodate, adjust,
or sequence its work to the related work by others. Where the Contract requires handing -off
Contractor's work to others, Contractor shall cooperate as State instructs regarding the
necessary transfer of its work product, services, or records to State or the other vendors.
Contractor shall not commit or permit any act that interferes with the State's or other vendors'
performance of their work, provided that, State shall enforce the foregoing section equitably
among all its vendors so as not impose an unreasonable burden on any one of them.
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Request for Proposal
Arizona Department of
Administration
Solicitation No. BPM002338
State Procurement Off[ce
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
3.17 Work on State 3.16.1 COMPLIANCE WITH RULES. Contractor is responsible for ensuring that its personnel
Premises comply with State's rules, regulations, policies, documented practices, and documented
operating procedures while delivering or installing Materials or performing Services on
State's grounds or in its facilities. For clarity of intent, the foregoing means that if
Contractor is required to comply with certain security requirements in order to deliver,
install, or perform at that particular location, then it shall do so nonetheless and without
entitlement to any additional compensation or additional time for performance if those
particular requirements are not expressly stated in the Contract. Contractor is reminded
that violation of the prohibition under A.R.S. § 13-1502 against possession of weapons
on State's property by anyone for whom Contractor is responsible is a material breach
of contract and grounds for termination for default.
3.16.2 PROTECTION OF GROUNDS AND FACILITIES. Contractor shall deliver or install the
Materials and perform the Services without damaging any State grounds or facilities.
Contractor shall repair or replace any damage it does cause promptly and at its own
expense, subject to whatever instructions and restrictions State needs to make to
prevent inconvenience or disruption of operations. If Contractor fails to make the
necessary repairs or replacements and do so in a timely manner, State will be entitled to
exercise its remedies under paragraph 8.5 [Right of Offset].
4.0 Costs and Payments
4.1 Payments 4.1.1
PAYMENT DEADLINE. State shall make payments in compliance with Arizona Revised
Statues Titles 35 and 41. Unless and then only to the extent expressly stated otherwise
in the Pricing Document, State shall make payment in full for Materials that have been
delivered and accepted and Services that have been performed and accepted within the
time specified in A.R.S. § 35-342 after both of the following become true: (a) all of the
Materials being invoiced have been delivered or installed (as applicable) and accepted
and all of the Services being invoiced have been performed and accepted; and
(b) Contractor has provided a complete and accurate invoice in the form and manner
called for in the Pricing Document, provided that, State will not make or be liable for any
payments to Contractor until Contractor has registered properly in The State's e-
Procurement System and provided a current IRS Form W-9 to State unless excused by
law from providing one.
4.1.2
PAYMENTS ONLY TO CONTRACTOR. Unless compelled otherwise by operation of law or
order of a court of competent jurisdiction, State will only make payment to Contractor
under the federal tax identifier indicated on the Accepted Offer.
4.2 Applicable 4.2.1
CONTRACTOR TO PAY ALL TAXES. State is subject to Arizona TPT. Therefore, Arizona TPT
Taxes
applies to all sales under the Contract and Arizona TPT is Contractor's responsibility (as
seller) to remit. Contractor's failure to collect Arizona TPT or any other applicable sales
or use taxes from an Eligible Agency or Co -Op Buyer (as buyer) will not relieve
Contractor of any obligation to remit sales or use taxes that are due under the Contract
or laws. Unless stated otherwise in the Pricing Document, all prices therein include
Arizona TPT as well as every other manner of transaction privilege or sales/use tax that
is due to a municipality or another state or its political subdivisions. Contractor shall pay
all federal, state, and local taxes applicable to its operations and personnel.
4.2.2
TAX INDEMNITY. Contractor shall hold State harmless from any responsibility for taxes
or contributions, including any applicable damages and interest, that are due to federal,
state, and local authorities with respect to the Work and the Contract, as well any
related costs; the foregoing expressly includes Arizona TPT, unemployment
compensation insurance, social security, and workers' compensation insurance.
5.0 Contract Changes
5.1 Contract Amendments The Contract is issued for State under the authority of Procurement Officer. Only a Contract
Amendment can modify the Contract, and then only if it does not change the Contract's general
scope. Purported changes to the Contract by a person not expressly authorized by Procurement
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Request for Proposal
Arizona Department of
Administration
Solicitation No. BPM002338
State Procurement Office
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
Officer or made unilaterally by Contractor will be void and without effect; Contractor will not be
entitled to any claim made under the Contract based on any such purported changes.
5.2 Assignment and 5.2.1 IN WHOLE. Contractor shall not assign in whole its rights or delegate in whole its duties
Delegation under the Contract without Procurement Officer's prior written consent, which consent
Procurement Officer may withhold at his or her discretion. If Contractor's proposed
assignment or delegation stems from a split, sale, acquisition, or other non -merger
change in control, then no such consent will be given in any event without the assignee
or delegate giving State satisfactory and equivalent evidence or assurance of its financial
soundness, competency, capacity, and qualification to perform as that which Contractor
possessed when State first awarded it the Contract.
5.2.2 IN PART. Subject to paragraph 3.10 [Subcontracts] with respect to subcontracting,
Contractor may assign particular rights or delegate particular duties under the Contract,
but shall obtain Procurement Officer's written consent before doing so. Procurement
Officer shall not unreasonably withhold consent so long as the proposed assignment or
delegation does not attempt to modify the Contract in any way or to alter or impair
State's rights or remedies under the Contract or laws.
6.0 Risk and Liability
6.1 Risk of Loss Contractor shall bear all risk of loss to Materials while in pre -production, production, storage,
transit, staging, assembly, installation, testing, and commissioning, if and as those duties are
within the scope of the Work, until they have been accepted as conforming by State in the
particular location and situation specified in the Order, or as specified generally elsewhere in the
Contract if the Order does not provide particulars, provided that, risk of loss for nonconforming
Materials will remain with Contractor notwithstanding acceptance to the extent the loss stems
from the nonconformance.
6.2 Contractor Insurance Contractor and subcontractors shall procure and maintain until all of their obligations have been
Requirements discharged, including any warranty periods under this Contract, 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 the Contractor, his agents, representatives,
employees or subcontractors.
The insurance requirements herein are minimum requirements for this Contract and in no way
limit the indemnity covenants contained in this Contract. The State of Arizona in no way warrants
that the minimum limits contained herein are sufficient to protect the Contractor from liabilities
that might arise out of the performance of the work under this contract by the Contractor, its
agents, representatives, employees or subcontractors, and Contractor is free to purchase
additional insurance.
MINIMUM SCOPE AND LIMITS OF INSURANCE: Contractor shall provide coverage with limits of
liability not less than those stated below.
1. Commercial General Liability (CGL) — Occurrence Form
Policy shall include bodily injury, property damage personal injury and broad form contractual
liability coverage
General Aggregate $2,000,000
Products —Completed Operations Aggregate $1,000,000
Personal and Advertising Injury $1,000,000
Damage to Rented Premises $ 50,000
Each Occurrence $1,000,000
a. The policy shall be endorsed, as required by this written agreement, to include
the State of Arizona, and its departments, agencies, boards, commissions,
universities, officers, officials, agents, and employees as additional insureds with
respect to liability arising out of the activities performed by or on behalf of the
Contractor.
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4.D.b
Request for Proposal
Arizona Department of
Administration
Solicitation No. BPM002338
State Procurement Office
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
b. Policy shall contain a waiver of subrogation endorsement, as required by this
written agreement, in favor of the State of Arizona, and its departments,
agencies, boards, commissions, universities, officers, officials, agents, and
employees for losses arising from work performed by or on behalf of the
Contractor.
2. Business Automobile Liability
Bodily Injury and Property Damage for any owned, hired, and/or non -owned vehicles used in
the performance of this Contract.
Combined Single Limit (CSL)
$1,000,000
a. Policy shall be endorsed, as required by this written agreement, to include the
State of Arizona, and its departments, agencies, boards, commissions,
universities and its officers, officials, agents, and employees as additional
insureds with respect to liability arising out of the activities performed by, or on
behalf of, the Contractor, involving automobiles owned, leased, hired and/or
non -owned by the Contractor.
b. Policy shall contain a waiver of subrogation endorsement as required by this
written agreement in favor of the State of Arizona, and its departments,
agencies, boards, commissions, universities, officers, officials, agents, and
employees for losses arising from work performed by or on behalf of the
Contractor.
3. Worker's Compensation and Employers' Liability
Workers' Compensation ................................................Statutory
Each Accident $1,000,000
Disease— Each Employee $1,000,000
Disease — Policy Limit $1,000,000
a. Policy shall contain a waiver of subrogation endorsement as required by this
written agreement in favor of the State of Arizona, and its departments,
agencies, boards, commissions, universities, officers, officials, agents, and
employees for losses arising from work performed by or on behalf of the
Contractor.
b. This requirement shall not apply to each Contractor or subcontractor that is
exempt under A.R.S. 23-901, and when such contractor or subcontractor
executes the appropriate waiver form (Sole Proprietor/Independent Contractor).
5. Technology Errors & Omissions Insurance — Required as applicable to the services provided.
Each Claim $ 2,000,000
Annual Aggregate $ 2,000,000
a. 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.
b. Coverage shall include copyright infringement, infringement of trade dress,
domain name, title or slogan.
C. In the event that the Tech E&O insurance required by this Contract is written on
a claims -made basis, Contractor warrants that any retroactive date under the
policy shall precede the effective date of this Contract and, either continuous
coverage will be maintained or an extended discovery period will be exercised
for a period of two (2) years, beginning at the time work under this Contract is
completed.
d. Technology Errors and Omissions insurance coverage shall only be required from
each Contractor or subcontractor who is providing one of the following Training
Delivery Formats:
1. Computer Based training (CBT) and/or
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Request for Proposal
Arizona Department of
Administration
Solicitation No. BPM002338
State Procurement Office
Description: Software Value -Added Reseller
100N15thAve.,Suite 402
Phoenix, AZ 85007
2. E-Learning (E).
6. Network Security (Cyber) and Privacy Liability — Required as applicable to the services
provided.
Each Claim $ 2,000,000
Annual Aggregate $ 2,000,000
a. Such insurance shall include, but not be limited to, coverage for third party
claims and losses with respect to network risks (such as data breaches,
unauthorized access or use, ID theft, theft of data) and invasion of privacy
regardless of the type of media involved in the loss of private information, crisis
management and identity theft response costs. This should also include breach
notification costs, credit remediation and credit monitoring, defense and claims
expenses, regulatory defense costs plus fines and penalties, cyber extortion,
computer program and electronic data restoration expenses coverage (data
asset protection), network business interruption, computer fraud coverage, and
funds transfer loss.
b. In the event that the Network Security and Privacy Liability insurance required
by this Contract is written on a claims -made basis, Contractor warrants that any
retroactive date under the policy shall precede the effective date of this
Contract and, either continuous coverage will be maintained, or an extended
discovery period will be exercised for a period of two (2) years beginning at the
time work under this Contract is completed.
C. The policy shall be endorsed, as required by this written agreement, to include
the State of Arizona, and its departments, agencies, boards, commissions,
universities, officers, officials, agents, and employees as additional insureds with
respect to vicarious liability of the insured arising out of the activities performed
by or on behalf of the Contractor.
d. Policy shall contain a waiver of subrogation endorsement, as required by this
written agreement, in favor of the State of Arizona, and its department,
agencies, boards, commissions, universities, officers, officials, agents, and
employees for losses arising from work performed by or on behalf of the
Contractor.
e. Network Security (Cyber) and Privacy Liability coverage shall only be required
from each Contractor or subcontractor who is providing one of the following
Training Delivery Formats:
1. Computer Based training (CBT) and/or
2. E-Learning (E).
ADDITIONAL INSURANCE REQUIREMENTS: The policies shall include, or be endorsed to include,
the following provisions:
1. The Contractor's policies, as applicable, shall stipulate that the insurance
afforded the Reseller shall be primary and that any insurance carried by the
Department, its agents, officials, employees or the State of Arizona shall be
excess and not contributory insurance, as provided by A.R.S. § 41-621 E
2. Insurance provided by the Reseller shall not limit the Contractor's liability
assumed under the indemnification provisions of this Contract.
NOTICE OF CANCELLATION: Applicable to all insurance policies required within the Insurance
Requirements of this Contract, Contractor's insurance shall not be permitted to expire, be
suspended, be canceled, or be materially changed for any reason without thirty (30) days prior
written notice to the State of Arizona. Within two (2) business days of receipt, Reseller shall
provide notice to the State of Arizona if they receive notice of a policy that has been or shall be
suspended, canceled, materially changed for any reason, has expired, or shall be expiring. Such
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Request for Proposal
Arizona Department of
Administration
Solicitation No. BPM002338
State Procurement Office
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
notice shall be sent directly to the Department and shall be mailed, emailed, hand delivered or
sent by facsimile transmission to State Procurement Office.
ACCEPTABILITY OF INSURERS: Contractor's Insurance shall be placed with companies licensed in
the State of Arizona or hold approved non -admitted status on the Arizona Department of
Insurance List of Qualified Unauthorized Insurers. Insurers shall have an "A.M. Best" rating of
not less than A- VII. The State of Arizona in no way warrants that the above -required minimum
insurer rating is sufficient to protect the Reseller from potential insurer insolvency.
VERIFICATION OF COVERAGE: Reseller shall furnish the State of Arizona with certificates of
insurance (valid ACORD form or equivalent approved by the State of Arizona) evidencing that
Reseller has the insurance as required by this Contract. An authorized representative of the
insurer shall sign the certificates.
All such certificates of insurance and policy endorsements shall be received by the State
before work commences. The State's receipt of any certificates of insurance or policy
endorsements that do not comply with this written agreement shall not waive or otherwise
affect the requirements of this agreement.
Each insurance policy required by this Contract shall be in effect at, or prior to,
commencement of work under this Contract. Failure to maintain the insurance policies as
required by this Contract, or to provide evidence of renewal, is a material breach of
contract.
All such certificates required by this Contract shall be sent directly to the Arizona State
Procurement Office. The State of Arizona project/contract number and project description
shall be noted on the certificate of insurance. The State of Arizona reserves the right to
require complete, certified copies of all insurance policies required by this Contract at any
time.
SUBCONTRACTORS: Contractors' certificate(s) shall include all subcontractors as insured under
its policies or Reseller shall be responsible for ensuring and/or verifying that all subcontractors
have valid and collectable insurance as evidenced by the certificates of insurance and
endorsements for each subcontractor. All coverages for subcontractors shall be subject to the
minimum Insurance Requirements identified above. The Department reserves the right to
require, at any time throughout the life of this contract, proof from the Reseller that its
subcontractors have the required coverage.
APPROVAL and MODIFICATIONS: The Contracting Agency, in consultation with State Risk,
reserves the right to review or make modifications to the insurance limits, required coverages, or
endorsements throughout the life of this contract, as deemed necessary. Such action shall not
require a formal Contract amendment but may be made by administrative action.
EXCEPTIONS: In the event the Reseller 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 the Reseller or sub-contractor(s) is/are a State of Arizona agency, board,
commission, or university, none of the above shall apply.
6.3 Indemnification To the fullest extent permitted by law, Reseller shall defend, indemnify, and hold harmless the
State of Arizona, and its departments, agencies, boards, commissions, universities, officers,
officials, agents, and employees (hereinafter referred to as "Indemnitee") from and against any
and all claims, actions, liabilities, damages, losses, or expenses (including court costs, attorneys'
fees, and costs of claim processing, investigation and litigation) (hereinafter referred to as
"Claims") for bodily injury or personal injury (including death), or loss or damage to tangible or
intangible property caused, or alleged to be caused, in whole or in part, by the negligent or
willful acts or omissions of Reseller or any of its owners, officers, directors, agents, employees or
subcontractors. This indemnity includes any claim or amount arising out of, or recovered under,
the Workers' Compensation Law or arising out of the failure of such Reseller 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 Reseller
from and against any and all claims. It is agreed that Reseller shall be responsible for primary loss
investigation, defense, and judgement costs where this indemnification is applicable. In
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Request for Proposal
Arizona Department of
Administration
Solicitation No. BPM002338
State Procurement Office
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
consideration of the award of this contract, the Reseller agrees to waive all rights of subrogation
against the State of, its officers, officials, agents, and employees for losses arising from the work
performed by the Reseller for the State of Arizona. This indemnification shall survive the
termination of the above listed contract with the Reseller.
This indemnity shall not apply if the Reseller or sub-contractor(s) is/are an agency, board,
commission or university of the State of Arizona.
6.4 Patent and Copyright CONTRACTOR/VENDOR (NOT PUBLIC AGENCY). With respect to Materials or Services provided or
Indemnification proposed by a Reseller Indemnitor for performance under the Contract, Reseller shall indemnify,
defend and hold harmless State Indemnitees against any third -party claims for liability, costs, and
expenses, including, but not limited to reasonable attorneys' fees, for infringement or violation
of any patent, trademark, copyright, or trade secret by the Materials and the Services. With
respect to the defense and payment of claims under this subparagraph:
1. State shall provide reasonable and timely notification to Reseller of any claim for which
Reseller may be liable under this paragraph;
2. Reseller, with reasonable consultation from State, shall have control of the defense of
any action on an indemnified claim including all negotiations for its settlement or
compromise;
3. State may elect to participate in such action at its own expense; and
4. State may approve or disapprove any settlement or compromise, provided that, (i) State
shall not unreasonably withhold or delay such approval or disapproval and (ii) State shall
cooperate in the defense and in any related settlement negotiations.
If Reseller is a public agency, this paragraph 6.4 does not apply.
6.5 Force Majeure 6.5.1 DEFINITION. For this paragraph, "force majeure" means an occurrence that is (a) beyond
the control of the affected party, (b) occurred without the party's fault or negligence,
and (c) something the party was unable to prevent by exercising reasonable diligence.
Without limiting the generality of the foregoing, force majeure expressly includes acts of
God, acts of the public enemy, war, riots, strikes, mobilization, labor disputes, civil
disorders, fire, flood, lockouts, injunctions -intervention -acts, failures or refusals to act
by government authorities, and, subject to paragraph 7.66 [Performance in Public Health
Emergency], declared public health emergencies. Force majeure expressly does not
include late delivery caused by congestion at a manufacturer's plant or elsewhere, an
oversold condition of the market, late performance by a Subcontractor unless the delay
arises out of an occurrence of force majeure, or inability of either Contractor or any
Subcontractor to acquire or maintain any required insurance, bonds, licenses, or
permits.
6.5.2 RELIEF FROM PERFORMANCE. Except for payment of sums due, the parties are not liable
to each other if an occurrence of force majeure prevents its performance under the
Contract. If either party is delayed at any time in the progress of their respective
performance under the Contract by an occurrence of force majeure, the delayed party
shall notify the other no later than the following working day after the occurrence, or as
soon as it could reasonably have been expected to recognize that the occurrence had
effect in cases where the effects were not readily apparent. In any event, the notice
must make specific reference to this paragraph specifying the causes of the delay in the
notice and, if the effects of the occurrence are on -going, provide an initial notification
and thereafter the delayed party shall provide regular updates until such time as the
effects are fully known. To the extent it is able, the delayed party shall cause the delay
to cease promptly and notify the other party when it has done so. The parties shall
extend the time of completion by Contract Amendment for a period equal to the time
that the results or effects of the delay prevented the delayed party from performing.
6.5.3 EXCUSABLE DELAY IS NOT DEFAULT. Failure in performance by either party will not
constitute default hereunder or give rise to any claim for damages or loss of anticipated
profits if and to the extent that such failure was or is being caused by an occurrence of
force majeure.
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4.D.b
Request for Proposal
Arizona Department of
Administration
Solicitation No. BPM002338
State Procurement Off[ce
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
6.5.4 DEFAULT DIMINISHES RELIEF. Entitlement to relief from the effects of an occurrence of
force majeure is diminished to the extent that the delay did or will result from the
affected party's default unrelated to the occurrence, in which case and to that extent
the other party's normal remedies and the affected party's obligations would apply
undiminished.
6.6 Third Party Contractor assigns to State any claim for overcharges resulting from antitrust violations to the
Antitrust extent that those violations concern materials or services supplied by third parties to Contractor
Violations toward fulfillment of the Contract.
7.0 Warranties
7.1 Conformity to
Contractor warrants that, unless expressly provided otherwise elsewhere in the Contract, the
Requirements
Materials and Services will for 1 (one) year after acceptance and in each instance: (1) conform to
the requirements of the Contract, which by way of reminder include without limitation all
descriptions, specifications, and drawings identified in the Scope of Work and any Contractor
affirmations included as part of the Contract; (2) be free from defects of material and
workmanship; (3) conform to or perform in a manner consistent with current industry standards;
and (4) be fit for the intended purpose or use described in the Contract. Mere delivery or
performance does not substitute for express acceptance by State. Where inspection, testing, or
other acceptance assessment of Materials or Services cannot be done until after installation, the
forgoing warranty will not begin until State's acceptance.
7.2 Contractor
Contractor warrants that its personnel will perform their duties under the Contract in a
Personnel
professional manner, applying the requisite skills and knowledge, consistent with industry
standards, and in accordance with the requirements of the Contract. Contractor further warrants
that its key personnel will maintain any certifications relevant to their work, and Contractor shall
provide individual evidence of certification to State's authorized representatives upon request.
7.3 Intellectual
Contractor warrants that the Materials and Services do not and will not infringe or violate any
Property
patent, trademark, copyright, trade secret, or other intellectual property rights or laws, except
only to the extent the Specifications do not permit use of any other product and Contractor is
not and cannot reasonably be expected to be aware of the infringement or violation.
7.4 Licenses and Permits
Contractor warrants that it will maintain all licenses required under paragraph 3.7 [Contractor
Licenses] and all required permits valid and in force.
7.5 Operational Continuity
Contractor warrants that it will perform without relief notwithstanding being sold or acquired; no
such event will operate to mitigate or alter any of Contractor's duties hereunder absent a
consented delegation under paragraph 5.3 [Assignment and Delegation] that expressly
recognizes the event.
7.6 Performance in Public Contractor warrants that it will
Health Emergency 1. have in effect promptly after commencement a plan for continuing performance in the
event of a declared public health emergency that addresses, at a minimum: (a)
identification of response personnel by name; (b) key succession and performance
responses in the event of sudden and significant decrease in workforce; and
(c) alternative avenues to keep sufficient product on hand or in the supply chain; and
2. Provide a copy of its current plan to State within 3 (three) business days after State's
written request. If Contractor claims relief under paragraph 6.5 [Force Majeure] for an
occurrence of force majeure that is a declared public health emergency, then that relief
will be conditioned on Contractor having first implemented its plan and exhausted all
reasonable opportunity for that plan implementation to overcome the effects of that
occurrence, or mitigate those effects to the extent that overcoming entirely is not
practicable.
For clarification of intent, being obliged to implement the plan is not of itself an occurrence of
force majeure, and Contractor will not be entitled to any additional compensation or extension
of time by virtue of having to implement it. Furthermore, failure to have or implement an
appropriate plan will be a material breach of contract.
7.7 Lobbying 7.7.1 PROHIBITION.
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Request for Proposal
Arizona Department of
Administration
Solicitation No. BPM002338
State Procurement Office
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
(a) Contractor warrants that:
i. it will not engage in lobbying activities, as defined in 40 CFR part 34 and
A.R.S. § 41-1231, et seq., using monies awarded under the Contract, provided
that, the foregoing does not intend to constrain Contractor's use of its own
monies or property, including without limitation any net proceeds duly
realized under the Contract or any value thereafter derived from those
proceeds; and
ii. Upon award of the Contract, it will disclose all lobbying activities to State to
the extent they are an actual or potential conflict of interest or where such
activities could create an appearance of impropriety.
(b) Contractor shall implement and maintain adequate controls to assure compliance
with (a) above.
(c) Contractor shall obtain an equivalent warranty from all Subcontractors and shall
include an equivalent no -lobbying provision in all Subcontracts.
7.7.2 EXCEPTION. This paragraph does not apply to the extent that the Services are defined in
the Contract as being lobbying for State's benefit or on State's behalf.
7.8 Survival of All representations and warrants made by Contractor under the Contract will survive the
Warranties expiration or earlier termination of the Contract.
8.0 State's Contractual Remedies
No modifications to uniform terms and conditions section
9.0 Contract Termination
No modifications to uniform terms and conditions section
10.0 Contract Claims
10.1 Claim Notwithstanding any law to the contrary, all contract claims or controversies under the Contract
Resolution are to be resolved according to Arizona Revised Statutes Title 41, Chapter 23, Article 9, and rules
adopted thereunder, including judicial review under A.R.S. § 12-1518.
10.2 Mandatory In compliance with A.R.S. § 12-1518, the parties agree to comply in a judicial review proceeding
Arbitration with any applicable, mandatory arbitration requirements.
11.0 General Provisions for Materials
11.1 Applicability Article 11 applies to the extent the Work is or includes Materials.
11.2 Off -Contract Contractor shall ensure that the design and/or procedures for the Materials ordering method
Materials prevents Orders for off -contract items or excluded items. Notwithstanding that State might have
its own internal administrative rules regarding off -contract or excluded item ordering, and
endeavors to prevent such orders from occurring, Contractor is responsible for not accepting any
such Orders, State may, at its discretion, return any such items under subparagraph 11.17 or
cancel any such Order under subparagraph 11.18, in either case being without obligation and at
Contractor's expense. As used above, "off -contract item" refers to any product not included in
the scope of the Contract and for which no price or compensation has been established
contractually, and "excluded item" refers to any product expressly stated in the Contract as
being excluded from the Contract.
11.3 Compensation for Contractor shall have clear, published policies in place regarding late delivery, order cancelation,
Late Deliveries discounts, or rebates given to compensate for late deliveries, etc., and make them readily
available to those Eligible Agencies, and Co -Op Buyers if applicable, that are likely to need them
11.4 Indicate Shipping Contractor shall identify and provide the required substantiating documentation for the amount
Costs on Order it intends to add for shipping in the Order acknowledgment if shipping is additional to the
contracted price or rate for an item; otherwise, Contractor shall indicate that shipping is included
in the Order price (in other words, every Order must indicate clearly whether or not shipping is
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Request for Proposal
Arizona Department of
Administration
Solicitation No. BPM002338
State Procurement Office
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
included in the Order price, and if not included, how much is to be added and why that amount is
the correct or appropriate one)
Contractor shall keep all products being offered under the Contract: (a) in current and ongoing
production; (b) in its advertised product lines; (c) as models or types that are actively functioning
11.5 Current Products in other paying customer environments; and (d) in conformance to the requirements of the
Contract
Contractor shall provide at all times the comprehensive selection of products for which a price is
established in the Commercial Document for ordering by Eligible Agencies, and Co -Op Buyers if
11.6 Maintain
applicable.
Comprehensive
Selection
State, at its discretion, may modify the scope of the Contract by Contract Amendment to include
additional products or product categories so long as they are within the general scope of the
ones originally covered by the Contract. Once the Contract Amendment has been fully executed,
11.7 Additional
Contractor shall then update all applicable catalogs and price lists and make them available to all
Products
affected entities at no additional cost. Either party may make the request to add products to the
Contract; regardless of who makes the request, the parties shall negotiate in good faith a fair
price for any additional products, but State may elect not to add some or all of the products in
question if no agreement is reached on pricing in a timely manner. Contractor's request or
proposal in response to State's request must include: (a) documentation demonstrating that the
additional products meet or exceed the specifications for the original products while remaining
in the same product groups as the original ones; and (b) documentation demonstrating that the
proposed price for the additional products is both fair and reasonable and at the same level of
discount relative to market price as were the original ones. Demonstration of (b) typically
requires showing how prices at which sales are currently or were last made to a significant
number of buyers compare to the prices or discounts (as applicable) being proposed for the
additional products
If a product or groups of products covered by the Contract are discontinued by the
manufacturer, Contractor shall notify State within 5 (five) business days after receiving the
manufacturer's notification. State, at its discretion, will either allow Contractor to provide
11.8 Discounted
substitutes for the discontinued products or delete the products from the scope of the Contract,
Products
both of which will be accomplished by Contract Amendment. Contractor shall then update all
applicable catalogs and price lists and make them available to all affected entities at no
additional cost. The parties shall negotiate in good faith a fair price for any substitute product,
but State may elect to delete the products from the scope of the Contract if no agreement is
reached on substitute pricing in a timely manner. When notifying State of the discontinuance,
Contractor shall provide: (a) manufacturer's announcement or documentation stating that the
products have been discontinued, with identification by model/part number; (b) documentation
demonstrating that the substitute products meet or exceed the specifications for the
discontinued products while remaining in the same product groups as were the discontinued
ones; and (c) documentation demonstrating that the proposed price for the substitute products
is both fair and reasonable and at the same level of discount relative to market price as were the
discontinued ones.
Forced substitutions will not be permitted; Contractor shall obtain State's prior written consent
before making any discretionary substitution for any product covered by the Contract.
In the event of a recall notice, technical service bulletin, or other important notification affecting
11.9 Forced Substitutes
a product offered under the Contract (collectively, "recalls" hereinafter), Contractor shall send
11.10 Recalls
timely notice to State for each applicable Order referencing the affected Order and product.
Notwithstanding whatever protection Contractor might have under A.R.S. § 12-684 with respect
to a manufacturer, Contractor shall handle recalls entirely and without obligation on State's part,
other than to permit removal of installed products, retrieval of stored products, etc., as
necessary to implement the recall
11.11.1 PRICING. Unless stated otherwise in the Commercial Document, all Materials prices set
forth therein are FCA (seller's dock) Incoterms®2010, with "seller's dock" meaning the last place
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4.D.b
Request for Proposal
Arizona Department of
Administration
Solicitation No. BPM002338
State Procurement Office
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
of manufacturing, assembly, integration, final packing, or warehousing before departure to
11.11 Delivery designated point of delivery to State. For reference, the foregoing is to be construed as
equivalent to "F.o.b. Origin, Contractor's Facility" under FAR 52.247-30
11.11.2 LIABILITY. Unless stated otherwise in the Commercial Document or an Order,
Contractor's liability for all Materials is DDP (State -designated receiving point per Order)
Incoterms°2010, but with unloading at destination included. For reference, the foregoing is to be
construed as equivalent to "F.o.b. Destination, Within Consignee's Premises" under FAR 52.247-
35.
11.11.3 PAYMENT. Unless stated otherwise in the Commercial Document or an Order, State
shall reimburse Contractor the costs of the difference between DDP (State -designated receiving
point per Order) and FCA (seller's dock) with no mark-up, which Contractor shall itemize and
invoice separately
Unless stated otherwise in the Commercial Document generally or in the applicable Order
particularly, Contractor shall make delivery within 2 (two) business days after receiving each
Order
Contractor shall offer deliveries to every location served under the scope of the Contract,
specifically
11.12 Delivery Time 1. if the Contract is for a single State agency in a single area, then Contractor shall
deliver to any agency location in that area;
2. if the Contract is for a single State agency in all its locations, then Contractor shall
11.13 Delivery Locations deliver to any of that agency's location in Arizona;
3. if the Contract is for statewide use but excludes certain areas, then Contractor shall
deliver to any Eligible Agency or Co -Op Buyer location that is not in the excluded
areas; and
4. if the Contract is for unrestricted statewide use, then:
Contractor shall deliver to any Eligible Agency or Co -Op Buyer anywhere in
Arizona;
b) If a prospective Co -Op Buyer outside Arizona wishes to order against the
Contract, Contractor agrees to negotiate in good faith any fair and reasonable
price or lead time adjustments necessary to serve that location if practicable
to do so within the scope of its normal business; and,
c) if the Commercial Document indicates defined delivery areas and prices,
those always apply unless the Order expressly states otherwise and
Contractor accepts it.
Contractor shall verify receiving hours and conditions (i.e. height/weight restrictions, access
control, etc.) with the relevant purchaser for the receiving site before scheduling or making a
delivery. State will neither allow extra charges for wait time, comebacks, or the like nor excuse
late delivery if Contractor has failed to make the verification or comply with the applicable
conditions. Contractor shall make each delivery to the specific location indicated in the Order,
which Contractor acknowledges might be inside an industrial building, institutional building, low-
rise office building, or high-rise office building instead of a normal receiving dock. Contractor
11.14 Conditions at Delivery might be required to make deliveries to locations inside a secured perimeter at certain
Location institutional facilities such as prisons where prior clearances are required for each delivery and
driver individually. Contractor shall contact each such facility directly to confirm its most -current
security clearance procedures, allowable hours for deliveries, visitor dress code, and other
applicable rules. State will neither allow extra charges for wait time, comebacks, or the like nor
excuse late delivery if Contractor has failed to make the confirmation or comply with the
applicable conditions
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Phoenix, AZ 85007
State has the right to make acceptance of Materials subject to a complete inspection on delivery
and installation, if installation is Contractor's responsibility.
State may apply as acceptance criteria conformity to the Contract, workmanship and quality,
correctness of constituent materials, and any other matter for which the Contract or applicable
11.15 Materials laws state a requirement, whether stated directly or by reference to another document,
standard, reference specification, etc. Contractor shall remove any rejected Materials from the
delivery location, or from any immediate environs to which it might have been reasonably
11.16 Acceptance necessary to move it, carry it off the delivery premises, and subsequently deliver an equal
number or quantity of conforming items. State will not owe Contractor any payment for rejected
Materials, and State may, at its discretion, withhold or make partial payment for any rejected
Materials that have been returned to Contractor in those instances where State has agreed to
permit repair instead of demanding replacement.
Contractor shall, at no additional cost and without entitlement to extension of any delivery
11.17 Correcting Defects deadline or specified time for performance, remove or exchange and replace any defective or
non -conforming delivered or installed Materials
1. Contractor shall be solely responsible for the cost of any associated cutting and patching,
temporary protection measures, packing and crating, hoisting and loading,
transportation, unpacking, inspection, repacking, reshipping, and reinstallation if
installation is within the scope of the Contract.
2. If Contractor fails to do so in a timely manner, State will be entitled to exercise its
remedies under paragraph 8.5 [Right of Offset] of the Uniform Terms and Conditions.
3. Whether State will permit Contractor to repair in place or demands that Contractor
11.18 Returns remove and replace is at State's discretion in each instance, provided that, State shall not
apply that discretion punitively if repair in place is practicable and doing so would not
create safety hazards, put property at risk, unreasonably interfere with operations, create
public nuisance, or give rise to any other reasonable concern on State's part.
State may, at its discretion, return for full credit and with no restocking charges any delivered
Materials unused in the original packaging, including any instruction manuals or other incidental
item that accompanied the original shipment, within thirty (30) days after receipt. If State elects
to return delivered Materials, then State shall pay all freight, delivery, and transit insurance costs
to return the products to the place from which Contractor shipped them, provided that, if State
11.19 Order Cancellations returns delivered Materials because they are defective or non -conforming or for any other
reason having to do with Contractor fault or error, then State will not be responsible for paying
freight, delivery, or transit insurance costs to return the products and may, at its discretion,
either have those billed directly to Contractor or offset them under paragraph 8.5 [Right of
Offset] of the Uniform Terms and Conditions.
State may cancel Orders within a reasonable period after issuance and at its discretion. The same
method as that used for ordering will be used for cancellation. If State cancels an Order, then
State shall:
1. pay Contractor for any portion of the Materials and Services from that Order that have
been properly delivered or performed as of the cancellation effective date plus one (1)
additional business day
2. reimburse Contractor for:
(a) its actual, documented costs incurred in fulfilling the Order up to the
cancellation effective date plus one (1) additional business day;
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(b) the cost of any obligations it incurred in fulfilling the Order up to the
cancellation effective date plus one (1) additional business day that
demonstrably cannot be canceled, or that have pre -established
cancelation penalties specified in the relevant Subcontracts, to the extent
the penalties are reasonable and customary for the work in question; and,
3. Contractor shall not charge or be entitled to charge State for any new costs it incurs after
receiving the cancellation notice.
By way of reminder, State is not liable for any products that were produced, shipped, or
delivered or any services that were performed before Contractor had acknowledged the
corresponding Order
Materials as -shipped must comply with applicable safety regulations and standards. Unless
expressly stated otherwise in the Scope of Work, State is not responsible for making any
Materials safe or compliant following acceptance and is relying exclusively on Contractor to
deliver only products that are already safe and compliant
Contractor shall timely provide State with any "Safety Data Sheets" (SDS) and any other hazard
communication documentation required under the US Department of Labor's Occupational
Safety and Health Administration (OSHA) "Hazard Communication Standard" (often referred to
as the "HazCom 2012 Final Rule") that is reasonably necessary for State to comply with
regulations when it or its other contractors install, handle, operate, repair, maintain or remove
11.20 Product Safety any Materials. Note that, in the past, those documents might have been referred to as "Material
Safety Data Sheets" or "Product Safety Data Sheets", but State (and this Contract) use only the
more up-to-date "SDS" reference. Contractor shall ensure that all its relevant personnel
understand the nature of and hazards associated with, to the extent it they are Contractor's
11.21 Hazardous Materials responsibility under the Contract, the design, shipping, handling, delivery, installation, repair and
maintenance of any portion of the Work that is, contains or will become upon use a hazardous
material, with "hazardous material" being any material or substance that is: (1) identified now or
in the future as being hazardous, toxic or dangerous under applicable laws; or (2) subject to
statutory or regulatory requirement governing special handling, disposal or cleanup
12.0 General Provisions for Services
12.1 Applicability
Article 12 applies to the extent the Work is or includes Services.
12.2 Comprehensive
Contractor shall provide the comprehensive range of services for which a price is established in
Services Offering
the Pricing Document for ordering by Eligible Agencies, and Co -Op Buyers if co-op buying applies.
12.3 Additional Services
State at its discretion may modify the scope of the Contract by Contract Amendment to include
additional services or service categories that are within the general scope of the ones originally
covered by the Contract if it determines that doing so is in its best interest. Once the Contract
Amendment is fully executed, Contractor shall then update all applicable price lists and make
them available to all affected entities at no additional cost. Either party may make the request to
add services to the Contract; regardless of who makes the request, the parties shall negotiate in
good faith a fair price for any additional services, but State may elect not to add some or all of
the services in question if no agreement is reached on pricing in a timely manner. Contractor's
request or proposal in response to State's request must include documentation demonstrating
that the proposed price for the additional services is both fair and reasonable and comparable to
the original ones.
12.4 Off -Contract Services
Contractor shall ensure that the design and/or procedures for the Services ordering method
prevents Orders for off -contract or excluded services. Notwithstanding that State might have its
own internal administrative rules regarding off contract or excluded service ordering, and
endeavors to prevent such orders from occurring, Contractor is responsible for not accepting any
such Orders. State may, at its discretion, cancel any such Order without obligation. As used
above, "off -contract service" refers to any service not included in the scope of the Contract and
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Phoenix, AZ 85007
for which no price or compensation has been established contractually, and "excluded service"
refers to any service expressly excluded from the scope of the Contract.
12.5 Removal of Personnel
Notwithstanding that Contractor is in every circumstance responsible for hiring, assigning,
directing, managing, training, disciplining, and rewarding its personnel, State may at its discretion
and without the obligation to demonstrate cause instructs Contractor to remove any of its
personnel from State's facilities or from further assignment under the Contract. In such cases,
Contractor shall promptly replace them with other personnel having equivalent qualifications,
experience, and capabilities.
12.6 Transitions
During commencement, Contractor shall attend transition meetings with any outgoing vendors
to coordinate and ease the transition so that the effect on State's operations is kept to a
minimum. State may elect to have outgoing vendors complete some or all of their work or an
order in progress to ease the transition as is safest and most efficient in each instance, even if
that scope is covered under the Contract. Conversely, State anticipates having a continued need
for the same materials and services upon expiration or earlier termination of the Contract.
Accordingly, Contractor shall work closely with any new (incoming) vendor and State to ensure as
smooth and complete a transfer as is practicable. State's representative shall coordinate all
transition activities and facilitate joint development of a comprehensive transition plan by both
Contractor and the incoming vendor. As with the incoming transition. State may permit
Contractor (outgoing) to complete work or orders in progress to ease the transition as is safest
and most efficient in each instance.
12.7 Accuracy of Work
Contractor is responsible for the accuracy of the Services, and shall promptly make all necessary
revisions or corrections resulting from errors and omissions on its part without additional
compensation. Acceptance by State will not relieve Contractor of responsibility for correction of
any errors discovered subsequently or necessary clarification of any ambiguities.
12.8 Requirements at
Contractor personnel shall perform their assigned portions of the Services at the specific location
Services Location
indicated in the Order (if applicable). Contractor acknowledges that the location might be inside
an industrial building, institutional building, or one of various office types and classes.
Additionally, if performing the Services requires Contractor personnel to work inside a secured
perimeter at certain institutional facilities such as prisons where prior clearances are required,
Contractor shall contact the facility directly to confirm its most -current security clearance
procedures, allowable hours for work, visitor dress code, and other applicable rules. State will
neither allow extra charges for wait time, comebacks, or the like nor excuse late performance if
Contractor has failed to make the confirmation or comply with the applicable conditions.
12.9 Services Acceptance
State has the right to make acceptance of Services subject to acceptance criteria. State may
apply as acceptance criteria conformity to the Contract, accuracy, completeness, or other
indicators of quality or other matter for which the Contract or law states a requirement, whether
stated directly or by reference to another document, standard, reference specification, etc. State
will not owe Contractor any payment for un-accepted Services; and State may, at its discretion,
withhold or make partial payment for any rejected Services if Contractor is still in the process of
re -performing or otherwise curing the grounds for State's rejection.
12.10 Corrective Action
Notwithstanding any other guarantees, general warranties, or particular warranties Contractor
Required
has given under the Contract, if Contractor fails to perform any material portion of the Services,
including failing to complete any contractual deliverable, or if its performance fails to meet
agreed -upon service levels or service standards set out in or referred to in the Contract, then
Contractor shall perform a root -cause analysis to identify the source of the failure and use all
commercially reasonable efforts to correct the failure and meet the Contract requirements as
promptly as is practicable.
1. Contractor shall provide to State a report detailing the identified cause and setting out
its detailed corrective action plan promptly after the date the failure occurred (or the
date when the failure first became apparent, if it was not apparent immediately after
occurrence).
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100 N 15th Ave., Suite 402
Phoenix, AZ 85007
2. State may demand to review and approve Contractor's analysis and plans, and
Contractor shall make any corrections State instructs and adopt State's
recommendations so far as is commercially practicable, provided that State may insist
on any measures it determines within reason to be necessary for safety or protecting
property and the environment.
3. Contractor shall take the necessary action to avoid any like failure in the future, if doing
so is appropriate and practicable under the circumstances.
13.0 Data and Information Handling
13.1 Applicability
Article 13 applies to the extent the Work includes handling of any (1) State's proprietary and
sensitive data or (2) confidential or access -restricted information obtained from State or from
others at State's behest.
13.2 Data Protection and
Contractor warrants that it will establish and maintain procedures and controls acceptable to
Confidentiality of
State for ensuring that State's proprietary and sensitive data is protected from unauthorized
Information
access and information obtained from State or others in performance of its contractual duties is
not mishandled, misused, or inappropriately released or disclosed. For purposes of this
paragraph, all data created by Contractor in any way related to the Contract, provided to
Contractor by State, or prepared by others for State are proprietary to State, and all information
by those same avenues is State's confidential information. To comply with the foregoing warrant
1. Contractor shall: (a) notify State immediately of any unauthorized access or
inappropriate disclosures, whether stemming from an external security breach, internal
breach, system failure, or procedural lapse; (b) cooperate with State to identify the
source or cause of and respond to each unauthorized access or inappropriate disclosure;
and (c) notify State promptly of any security threat that could result in unauthorized
access or inappropriate disclosures; and
2. Contractor shall not: (a) release any such data or allow it to be released or divulge any
such information to anyone other than its employees or officers as needed for each
person's individual performance of his or her duties under the Contract, unless State has
agreed otherwise in advance and in writing; or (b) respond to any requests it receives
from a third party for such data or information, and instead route all such requests to
State's designated representative.
13.3 Personally Identifiable Without limiting the generality of paragraph 13.2, Contractor warrants that it will protect any
Information. personally identifiable information ("PII") belonging to State's employees' or other contractors or
members of the general public that it receives from State or otherwise acquires in its
performance under the Contract.
For purposes of this paragraph:
1. PII has the meaning given in the [federal] Office of Management and Budget (OMB)
Memorandum M-17-12 Preparing for and Responding to a Breach of Personally
Identifiable Information", January 3, 2017; and
2. "protect" means taking measures to safeguard personally identifiable information and
prevent its breach that are functionally equivalent to those called for in that OMB
memorandum and elaborated on in the [federal] General Services Administration (GSA)
Directive CIO P 2180.1 GSA Rules of Behavior for Handling Personally Identifiable
Information.
NOTE (1): For convenience of reference only, the OMB memorandum is available at:
https://dpcld.defense.gov/Privacy/Authorities-and-Guidance/
NOTE (2): For convenience of reference only, the GSA directive is available at:
http://www.gsa.goy/portal/directive/d 0/contenV658222
13.4 Protected Health Contractor warrants that, to the extent performance under the Contract involves individually
Information identifiable health information (referred to hereinafter as protected health information ("PHI")
and electronic PHI ("ePHI") as defined in the Privacy Rule referred to below), it:
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State Procurement Office
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100 N 15th Ave., Suite 402
Phoenix, AZ 85007
1. is familiar with and will comply with the applicable aspects of the following collective
regulatory requirements regarding patient information privacy protection: (a) the
"Privacy Rule" in CFR 45 Part 160 and Part 164 pursuant to the Health Insurance
Portability and Accountability Act ("HIPAA") of 1996; (b) Arizona laws, rules, and
regulations applicable to PHI/ePHI that are not preempted by CFR 45-160(B) or the
Employee Retirement Income Security Act of 1974 ("ERISA") as amended; and (c) State's
current and published PHI/ePHI privacy and security policies and procedures;
2. will cooperate with State in the course of performing under the Contract so that both
State and Contractor stay in compliance with the requirements in (I) above; and
will sign any documents that are reasonably necessary to keep both State and
Contractor in compliance with the requirements in (1) above, in particular "Business
Associate Agreements" in accordance with the Privacy Rule.
NOTE: For convenience of reference only, the Privacy Rule is available at:
http://www.hhs.gov/hipaa/for-professionals/privacy/index.html
14.0 Information Technology Work
14.1 Applicability Article 14 applies to any Invitation for Bids, Request for Proposals, or Request for Quotations for
"Information Technology," as defined In A.R.S. § 41-3501(6) 6: " ... computerized and auxiliary
automated information processing, telecommunications and related technology, including
hardware, software, vendor support and related services, equipment and projects" if and to the
extent that the Work is or includes Information Technology.
14.2 Background Checks Each of Contractor's personnel who is an applicant for an information technology position must
undergo the security clearance and background check procedure, which includes fingerprinting,
as required by A.R.S § 41-710. Contractor shall obtain and pay for the security clearance and
background check. Contractor personnel who will have administrator privileges on a State
network must additionally provide identify and address verification and undergo State -specified
training for unescorted access, confidentiality, privacy, and data security.
14.3 Information Access 14.3.1 SYSTEM MEASURES. Contractor shall employ appropriate system management and
maintenance, fraud prevention and detection, and encryption application and tools to
any systems or networks containing or transmitting State's proprietary data or
confidential information.
14.3.2 INDIVIDUAL MEASURES. Contractor personnel shall comply with applicable State policies
and procedures regarding data access, privacy, and security, including prohibitions on
remote access and obtaining and maintaining access IDs and passwords. Contractor is
responsible to State for ensuring that any State access IDs and passwords are used only
by the person to whom they were issued. Contractor shall ensure that personnel are
only provided the minimum only such level of access necessary to perform his or duties.
Contractor shall on request provide a current register of the access IDs and passwords
and corresponding access levels currently assigned to its personnel.
14.3.3 ACCESS CONTROL. Contractor is responsible to State for ensuring that hardware,
software, data, information, and that has been provided by State or belongs to or is in
the custody of State and is accessed or accessible by Contractor personnel is only used
in connection with carrying out the Work, and is never commercially exploited in any
manner whatsoever not expressly permitted under the Contract. State may restrict
access by Contractor personnel, or instruct Contractor to restrict access their access, if
in its determination the requirements of this subparagraph are not being met.
14.4 Pass -Through 14.4.1 INDEMNITY FROM THIRD PARTY. For computer hardware or software included in the
Indemnity Work as discrete units that were manufactured or developed solely by a third party,
Contractor may satisfy its indemnification obligations under the Contract by, to the
extent permissible by law, passing through to State such indemnity as it receives from
the third -party source (each a "Pass -Through Indemnity") and cooperating with State in
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100 N 15th Ave., Suite 402
Phoenix, AZ 85007
enforcing that indemnity. If the third party fails to honor its Pass -Through Indemnity, or
if a Pass -Through Indemnity is insufficient to indemnify State Indemnitees to the extent
and degree Contractor is required to do by the Uniform Terms and Conditions, then
Contractor shall indemnify, defend and hold harmless State Indemnitees to the extent
the Pass -Through Indemnity does not.
14.4.2 NOTIFY OF CLAIMS. State shall notify Contractor promptly of any claim to which a Pass -
Through Indemnity might apply. Contractor, with reasonable consultation from State,
shall control of the defense of any action on any claim to which a Pass -Through
Indemnity applies, including negotiations for settlement or compromise, provided that:
(a) State reserves the right to elect to participate in the action at its own expense;
(b) State reserves the right to approve or reject any settlement or compromise on
reasonable grounds and if done so timely; and
(c) State shall in any case cooperate in the defense and any related settlement
negotiations.
14.5 Systems and Controls In consideration for State having agreed to permit Pass -Through Indemnities in lieu of direct
indemnity, Contractor agrees to establish and keep in place systems and controls appropriate to
ensure that State funds under this Contract are not knowingly used for the acquisition,
operation, or maintenance of Materials or Services in violation of intellectual property laws or a
third party's intellectual property rights.
14.6 Redress of 14.6.1 REPLACE, LICENSE, OR MODIFY. If Contractor becomes aware that any Materials or
Infringement. Services infringe, or are likely to be infringing on, any third party's intellectual property
rights, then Contractor shall at its sole cost and expense and in consultation with State
either:
(a) replace any infringing items with non -infringing- ones;
(b) obtain for State the right to continue using the infringing items; or
(c) modify the infringing item so that they become non -infringing, so long as they
continue to function as specified following the modification.
14.6.2 CANCELLATION OPTION. In every case under 14.6.1, if none of those options can
reasonably be accomplished, or if the continued use of the infringing items is
impracticable, State may cancel the relevant Order or terminate the Contract and
Contractor shall take back the infringing items. If State does cancel the Order or
terminate the Contract, Contractor shall refund to State:
(a) for any software created for State under the Contract, the amount State paid to
Contactor for creating it;
(b) for all other Materials, the net book value of the product provided according to
generally accepted accounting principles; and
(c) For Services, the amount paid by State or an amount equal to 12 (twelve) months
of charges, whichever is less.
14.6.3. EXCEPTIONS. Contractor will not be liable for any claim of infringement based solely on
any of the following by a State Indemnitee:
(a) modification or use of Materials other than as contemplated by the Contract or
expressly authorized or proposed by a Contractor Indemnitor;
(b) operation of Materials with any operating software other than that supplied by
Contractor or authorized or proposed by a Contractor Indemnitor; or
(c) Combination or use with other products in a manner not contemplated by the
Contract or expressly authorized or proposed by a Contractor Indemnitor.
14.7 First Party Liability 14.7.1 LIMIT. Subject to the provisos that follow below and unless stated otherwise in the
Limitation Special Terms and Conditions, State's and Contractor's respective first party liability
arising from or related to the Contract is limited to the greater of $1,000,000 (one
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100 N 15th Ave., Suite 402
Phoenix, AZ 85007
million dollars) or 3 (three) times the purchase price of the specific Materials or Services
giving rise to the claim.
14.7.2 PROVISOS. This paragraph 14.7 limits liability for first party direct, indirect, incidental,
special, punitive, and consequential damages relating to the Work regardless of the legal
theory under which the liability is asserted. This paragraph 14.7 does not limit liability
arising from any:
(a) Indemnified Claim against which Contractor has indemnified State Indemnitees
under paragraph 6.3;
(b) claim against which Contractor has indemnified State Indemnitees under
paragraph 6.4; or
(c) Provision of the Contract calling for liquidated damages or specifying amounts or
percentages as being at -risk or subject to deduction for performance deficiencies.
14.7.3 PURCHASE PRICE DETERMINATION. If the Contract is for a single -agency and a single
Order (or if no Order applies), then "purchase price" in Subparagraph 14.7.1 above
means the aggregate Contract price current at the time of Contract expiration or earlier
termination, including all Contract Amendments having an effect on the aggregate price
through that date. In all other cases, "purchase price" above means the total price of
the Order for the specific equipment, software, or services giving rise to the claim, and
therefore a separate limit will apply to each Order.
14.7.4 NO EFFECT ON INSURANCE. This paragraph does not modify the required coverage
limits, terms, and conditions of, or any insured's ability to claim against, any insurance
that Contractor is required by the Contract to provide, and Contractor shall obtain
express endorsements that it does not.
14.8 Information 14.8.1 SPECIFIED DESIGN. Where the Scope of Work for information technology Work provides
Technology Warranty a detailed design specification or sets out specific performance requirements,
Contractor warrants that the Work will provide all functionality material to the intended
use stated in the Contract, provided that, the foregoing warranty does not extend to any
portions of the Materials that are:
(a) modified or altered by anyone not authorized by Contractor to do so;
(b) maintained in a way inconsistent to any applicable manufacturer
recommendations; or
(c) Operated in a manner not within its intended use or environment.
14.8.2 COTS SOFTWARE. With respect to Materials provided under the Contract that are
commercial -off -the -shelf (COTS) software, Contractor warrants that:
(a) to the extent possible, it will test the software before delivery using commercially
available virus detection software conforming to current industry standards;
(b ) if requested by the Purchasing Entity and available from the Publisher, include a
statement from the Publisher that the Publisher has mitigated the risk of software
vulnerabilities by adopting a Secure Software Development Framework (SSDF)
that complies with all applicable software producer practices in the NIST
Cybersecurity White Paper of April 23, 2020, Mitigating the Risk of Software
Vulnerabilities by Adopting a Secure Software Development Framework (SSDF).
(c) the COTS software will, to the best of its knowledge, at the time of delivery be free
of viruses, backdoors, worms, spyware, malware, and other malicious code that
could hamper performance, collect unlawfully any personally identifiable
information, or prevent products from performing as required by the Contract;
and
(d) at no expense to the Purchasing Entity it will provide a new or clean install of any
COTS software that the Purchasing Entity has reason to believe contains harmful
code.
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Solicitation No. BPM002338
State Procurement Office
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
14.8.3 PAYMENT HAS NO EFFECT. The warranties in this paragraph are not affected by State's
inspection, testing, or payment.
14.9 Specific Remedies
Unless expressly stated otherwise elsewhere in the Contract, State's remedy for breach of
warranty under paragraph 14.8 includes, at State's discretion, re -performance, repair,
replacement, or refund of any amounts paid by State for the nonconforming Work, plus (in every
case) Contractor's payment of State's additional, documented, and reasonable costs to procure
materials or services equivalent in function, capability, and performance at that first called for.
For clarification of intent, the foregoing obligations are limited by the limitation of liability in
paragraph 14.7. If none of the forgoing options can reasonably be effected, or if the use of the
materials by State is made impractical by the nonconformance, then State may seek any remedy
available to it under law.
14.10 Section 508
Unless specifically authorized in the Contract, any electronic or information technology offered
Compliance
to the State of Arizona under this Contract shall comply with A.R.S. § 18-131 and § 18-132 and
Section 508 of the Rehabilitation Act of 1973, which requires that employees and members of
the public shall have access to and use of information technology that is comparable to the
access and use by employees and members of the public who are not individuals with disabilities.
14.11 Prohibited Software
Prohibited Software
S-VAR shall not sell 1) software prohibited under Section 889 of the National Defense
Authorization Act of 2019; or 2) software found to contain malware as determined by
the Lead State.
For any software not sold due to a (above), the S-VAR shall identify reasonable
substitute software that will be sold. This may include a comparison for lead state to
understand the comparable capabilities.
15.0 Information Security
15.1 Information Security SaaS Products Requirements. For Software as a Service Products sold by the S-
VAR, the following information shall be made available to the Purchasing Entity
upon request:
SECURITY OF INFORMATION
Describe the measures the Publisher takes to protect data. Include a
description of the method by which the Publisher will hold, protect, and
dispose of data following completion of any contract services.
Describe how the SaaS product will not access a Purchasing Entity's user
accounts or data, except in the course of data center operations,
response to service or technical issues, as required by the express terms
of the Master Agreement, the applicable Participating Addendum, and/or
the applicable Service Level Agreement.
PRIVACY AND SECURITY
List all government or standards organization security certifications the
Publisher currently holds that apply specifically to the SaaS product
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Request for Proposal
Arizona Department of
Administration
Solicitation No. BPM002338
State Procurement Office
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
offered as well as those in process at time of response. Specifically
include HIPAA, FERPA, CJIS Security Policy, PCI Data Security Standards
(DSS), IRS Publication 1075, FISMA, NIST 800-53, NIST SP 800- 171, FIPS
199 and 200 if they apply, and FedRAMP High, Mod, Low.
Describe security practices for the SaaS product in place to secure data
and applications, including threats from outside the service center as well
as other customers co -located within the same service center.
Describe data confidentiality standards and practices that are in place for
the SaaS product to ensure data confidentiality. This must include not
only prevention of exposure to unauthorized personnel, but also
managing and reviewing access that administrators have to stored data.
Include information on your hardware policies (laptops, mobile etc).
• Provide a list of current third -party attestations, reports, security
credentials (e.g. AZRAMP, Cloud Security Alliance, FedRAMP), and
certifications relating to data security, integrity, and other controls for
the SaaS product offered.
• Describe security procedures (background checks, foot printing logging,
etc.) which are in place regarding Publisher's employees who have access
to sensitive data stored on or transited through the SaaS product offered.
• Describe the security measures and standards which the SaaS product
has in place to secure the confidentiality of data at rest and in transit
• Describe policies and procedures regarding notification to both the
Purchasing Entity and third parties whose PPI has been breached, and the
mitigation of such a breach.
SaaS Products Terms and Conditions
Unless otherwise agreed to by the Purchasing Entity, Software -as -a -
Service Products offered by the S-VAR shall comply with the terms and
conditions in Part 2-C: Special Terms and Conditions Section 16 Software
as a Service Terms and Conditions.
SaaS Products. Cloud Security Alliance Security Trust Assurance and Risk (STAR)
Registry
Unless otherwise agreed to by the Purchasing Entity, SaaS products
offered by the SVAR shall be listed on the Cloud Security Alliance STAR
Registry for each Solution offered.
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Request for Proposal Arizona Department of
Administration
Solicitation No. BPM002338 State Procurement Office
Description: Software Value -Added Reseller 100 N 15th Ave., Suite 402
Phoenix, AZ 85007
15.2 Information Security. All SaaS Products and COTS software and software related services shall be
Compliance with NIST 800- compatible and support each Purchasing Entity's implementation of NIST Cyber
53, FIPS 199 and 200 Security Framework SP 800-53, FIPS 199 and 200 as applicable unless otherwise
provided by the Purchasing Entity in the Participating Addendum.
16.0 Software as a Service Terms and Conditions
(a) The Reseller shall honor Purchasing Entities' existing SaaS Terms and Conditions with Publishers.
(b) For all SaaS software provided by the S-VAR in Category 1, the S-VAR shall provide a guide document that
identifies the difference between the publishers terms and conditions and the terms and conditions in
Section 16.0 if requested by the Purchasing Entity.
(c) For SaaS software provided by the S-VAR in Categories 2 or 3, the terms and conditions in Section 16.0 shall
apply to all SaaS software, unless an exception or an addition is approved by the Lead State.
(d) Any exception and/or addition regarding the SaaS Terms and Conditions must follow the instructions
provided in Part 3 of the Solicitation, Section 3-A Instructions to Offerors, 3.5 Exceptions to Solicitation
Documents, and contain the following:
i. The rationale for the specific requirement being unacceptable to the Offeror submitting the exception
and/or addition;
ii. Recommended verbiage for the Lead State's consideration that is consistent in content, context, and
form with the Master Agreement Terms and Conditions;
iii. Explanation of how the Lead State's acceptance of the recommended verbiage is fair and equitable to
both the Lead State, the Participating Entities, and to the Offeror submitting the modification and/or
exception.
16.1 Data Ownership The Purchasing Entity will own all right, title and interest in its data that is related
to the Services provided by this Master Agreement. The SaaS provider shall not
access Purchasing Entity user accounts or Purchasing Entity data, except (1) in the
course of data center operations, (2) in response to service or technical issues, (3)
as required by the express terms of this Master Agreement, Participating
Addendum, SLA, and/or other contract documents, or (4) at the Purchasing
Entity's written request. SaaS provider shall not collect, access, or use user -
specific Purchasing Entity Data except as strictly necessary to provide Service to
the Purchasing Entity. No information regarding a Purchasing Entity's use of the
Service may be disclosed, provided, rented or sold to any third party for any
reason unless required by law or regulation or by an order of a court of competent
jurisdiction. This obligation shall survive and extend beyond the term of this
Master Agreement.
16.2 Data Protection Protection of personal privacy and data shall be an integral part of the business
activities of the SaaS provider to ensure there is no inappropriate or unauthorized
use of Purchasing Entity information at any time. To this end, the SaaS provider
shall safeguard the confidentiality, integrity and availability of Purchasing Entity
information and comply with the following conditions:
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Request for Proposal
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Solicitation No. BPM002338
State Proc
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
a. The SaaS provider shall implement and maintain appropriate administrative,
technical and organizational security measures to safeguard against unauthorized
access, disclosure or theft of Personal Data and Non -Public Data. Such security
measures shall be in accordance with recognized industry practice and not less
stringent than the measures the SaaS provider applies to its own Personal Data
and Non -Public Data of similar kind.
b. All data obtained by the SaaS provider in the performance of the SaaS product
shall become and remain the property of the Purchasing Entity.
c. All Personal Data shall be encrypted at rest and in transit with controlled access.
Unless otherwise stipulated, the SaaS provider is responsible for encryption of the
Personal Data. Any stipulation of responsibilities will identify specific roles and
responsibilities and shall be included in the service level agreement (SLA) or
otherwise made a part of Participating Addendum executed by the Purchasing
Entity.
d. Unless otherwise stipulated, the SaaS provider shall encrypt all Non -Public Data
at rest and in transit. The Purchasing Entity shall identify data it deems as Non -
Public Data to the SaaS provider. The level of protection and encryption for all
Non -Public Data shall be identified in the SLA.
e. At no time shall any data or processes — that either belong to or are intended
for the use of a Purchasing Entity or its officers, agents or employees — be copied,
disclosed or retained by the SaaS provider or any party related to the SaaS
provider for subsequent use in any transaction that does not include the
Purchasing Entity.
f. The SaaS provider shall not use any information collected in connection with the
Services issued from this Master Agreement for any purpose other than fulfilling
the Services.
16.3 Data Location The SaaS provider shall provide its services to the Purchasing Entity and its end
users solely from data centers in the U.S. Storage of Purchasing Entity data at rest
shall be located solely in data centers in the U.S. The SaaS provider shall not allow
its personnel or SaaS providers to store Purchasing Entity data on portable
devices, including personal computers, except for devices that are used and kept
only at its U.S. data centers. The SaaS provider shall permit its personnel and SaaS
providers to access Purchasing Entity data remotely only as required to provide
technical support. The SaaS provider may provide technical user support on a 24/7
basis using a Follow the Sun model, unless otherwise prohibited in a Participating
Addendum.
16.4 Security Incient or a. Incident Response: SaaS provider may need to communicate with outside
Data Breach parties regarding a security incident, which may include contacting law
Notification enforcement, fielding media inquiries and seeking external expertise as mutually
agreed upon, defined by law or contained in the contract. Discussing security
incidents with the Purchasing Entity should be handled on an urgent as- needed
basis, as part of SaaS provider's communication and mitigation processes as
mutually agreed upon, defined by law or contained in the Master Agreement.
b. Security Incident Reporting Requirements: The SaaS provider shall report a
security incident to the Purchasing Entity identified contact immediately as soon
as possible or promptly without out reasonable delay, or as defined in the SLA.
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Request for Proposal
Arizona Department of
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Solicitation No. BPM002338
State Procurement Office
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
c. Breach Reporting Requirements: If the SaaS provider has actual knowledge of a
confirmed data breach that affects the security of any purchasing entity's content
that is subject to applicable data breach notification law, the SaaS provider shall
(1) as soon as possible or promptly without out reasonable delay notify the
Purchasing Entity, unless shorter time is required by applicable law, and (2) take
commercially reasonable measures to address the data breach in a timely manner
16.5 Personal Data This section only applies when a Data Breach occurs with respect to Personal Data
Breach within the possession or control of the SaaS provider.
Responsibilities a. The SaaS provider, unless stipulated otherwise, shall immediately notify the
appropriate Purchasing Entity identified contact by telephone in accordance with
the agreed upon security plan or security procedures if it reasonably believes
there has been a security incident.
b. The SaaS provider, unless stipulated otherwise, shall promptly notify the
appropriate Purchasing Entity identified contact within 24 hours or sooner by
telephone, unless shorter time is required by applicable law, if it has confirmed
that there is, or reasonably believes that there has been a Data Breach. The SaaS
provider shall (1) cooperate with the Purchasing Entity as reasonably requested by
the Purchasing Entity to investigate and resolve the Data Breach, (2) promptly
implement necessary remedial measures, if necessary, and (3) document
responsive actions taken related to the Data Breach, including any post -incident
review of events and actions taken to make changes in business practices in
providing the services, if necessary.
c. Unless otherwise stipulated, if a data breach is a direct result of SaaS provider's
breach of its contractual obligation to encrypt personal data or otherwise prevent
its release as reasonably determined by the Purchasing Entity, the SaaS provider
shall bear the costs associated with (1) the investigation and resolution of the data
breach; (2) notifications to individuals, regulators or others required by federal
and state laws or as otherwise agreed to; (3) a credit monitoring service required
by state (or federal) law or as otherwise agreed to; (4) a website or a toll -free
number and call center for affected individuals required by federal and state laws
— all not to exceed the average per record per person cost calculated for data
breaches in the United States (currently $242 per record/person) in the 2019 Cost
of Data Breach Study: Global Analysis published by the Ponemon Institute at the
time of the data breach; and (5) complete all corrective actions as reasonably
determined by SaaS provider based on root cause.
16.6 Notification of The SaaS provider shall contact the Purchasing Entity upon receipt of any
Legal Requests: electronic discovery, litigation holds, discovery searches and expert testimonies
related to the Purchasing Entity's data under the Master Agreement, or which in
any way might reasonably require access to the data of the Purchasing Entity. The
SaaS provider shall not respond to subpoenas, service of process and other legal
requests related to the Purchasing Entity without first notifying and obtaining the
approval of the Purchasing Entity, unless prohibited by law from providing such
notice.
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Request for Proposal Arizona Department of
Administration
Solicitation No. BPM002338 State Procurement Office
Description: Software Value -Added Reseller 100N15thAve.,Suite 402
Phoenix, AZ 85007
16.7 Termination and a. In the event of a termination of the Master Agreement or applicable
Suspension of Participating Addendum, the SaaS provider shall implement an orderly return of
Service: purchasing entity's data in a CSV or another mutually agreeable format at a time
agreed to by the parties or allow the Purchasing Entity to extract it's data and the
subsequent secure disposal of purchasing entity's data.
b. During any period of service suspension, the SaaS provider shall not take any
action to intentionally erase or otherwise dispose of any of the Purchasing Entity's
data.
c. The purchasing entity shall be entitled to any post termination assistance
generally made available with respect to the services, unless a unique data
retrieval arrangement has been established as part of an SLA.
d. Upon termination of the Services or the Agreement in its entirety, SaaS provider
shall securely dispose of all Purchasing Entity's data in all of its forms, such as disk,
CD/ DVD, backup tape and paper, unless stipulated otherwise by the Purchasing
Entity. Data shall be permanently deleted and shall not be recoverable, according
to National Institute of Standards and Technology (NIST)-approved methods.
Certificates of destruction shall be provided to the Purchasing Entity.
16.8 Background Checks
Upon the request of the Purchasing Entity, the SaaS provider shall conduct
criminal background checks and not utilize any staff, including subcontractors, to
fulfill the obligations of the Master Agreement who have been convicted of any
crime of dishonesty, including but not limited to criminal fraud, or otherwise
convicted of any felony or misdemeanor offense for which incarceration for up to
1 year is an authorized penalty. The SaaS provider shall promote and maintain an
awareness of the importance of securing the Purchasing Entity's information
among the SaaS provider's employees and agents. If any of the stated personnel
providing services under a Participating Addendum is not acceptable to the
Purchasing Entity in its sole opinion as a result of the background or criminal
history investigation, the Purchasing Entity, in its' sole option shall have the right
to either (1) request immediate replacement of the person, or (2) immediately
terminate the Participating Addendum and any related service agreement.
16.9 Access to Security
The SaaS provider shall provide reports on a schedule specified in the SLA to the
Logs and Reports
Purchasing Entity in a format as specified in the SLA agreed to by both the SaaS
provider and the Purchasing Entity.
16.10 Data Center Audit
The SaaS provider shall perform an independent audit of its data centers at least
annually at its expense, and provide an unredacted version of the audit report
upon request to a Purchasing Entity. The SaaS provider may remove its proprietary
information from the unredacted version. A Service Organization Control (SOC) 2
audit report or approved equivalent sets the minimum level of a third -party audit.
16.11 Change Control
The SaaS provider shall give a minimum forty-eight (48) hour advance notice (or as
and Advance
determined by a Purchasing Entity and included in the SLA) to the Purchasing
Notice:
Entity of any upgrades (e.g., major upgrades, minor upgrades, system changes)
that may impact service availability and performance. A major upgrade is a
replacement of hardware, software or firmware with a newer or better version in
order to bring the system up to date or to improve its characteristics. It usually
includes a new version number.
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Arizona 7ntof
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Solicitation No. BPM002338
State Proc
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
SaaS provider will make updates and upgrades available to Purchasing Entity at no
additional costs when SaaS provider makes such updates and upgrades generally
available to its users.
No update, upgrade or other charge to the Service may decrease the Service's
functionality, adversely affect Purchasing Entity's use of or access to the Service,
or increase the cost of the Service to the Purchasing Entity.
SaaS provider will notify the Purchasing Entity at least sixty (60) days in advance
prior to any major update or upgrade.
16.12 Security As requested by a Purchasing Entity, the SaaS provider shall disclose its non-
proprietary system security plans (SSP) or security processes and technical
limitations to the Purchasing Entity such that adequate protection and flexibility
can be attained between the Purchasing Entity and the SaaS provider. For
example: virus checking and port sniffing — the Purchasing Entity and the SaaS
provider shall understand each other's roles and responsibilities.
16.13 Non -disclosure and The SaaS provider shall enforce separation of job duties, require commercially
Separation of
reasonable non -disclosure agreements, and limit staff knowledge of Purchasing
Duties:
Entity data to that which is absolutely necessary to perform job duties.
16.14 Responsibilities
The SaaS provider shall be responsible for the acquisition and operation of all
and Uptime
hardware, software and network support related to the services being provided.
Guarantee:
The technical and professional activities required for establishing, managing and
maintaining the environments are the responsibilities of the SaaS provider. The
system shall be available 24/7/365 (with agreed -upon maintenance downtime),
and provide service to customers as defined in the SLA.
16.15 Compliance with
The SaaS provider shall comply with and adhere to Accessibility Standards of
Accessibility
Section 508 Amendment to the Rehabilitation Act of 1973, or any other state laws
Standards:
or administrative regulations identified by the Participating Entity.
16.16 Web Services
The SaaS provider shall use Web services exclusively to interface with the
Purchasing Entity's data in near real time.
16.17 Encryption of Data
The SaaS provider shall ensure hard drive encryption consistent with validated
at Rest:
cryptography standards as referenced in HIPS 140-2, Security Requirements for
Cryptographic Modules for all Personal Data, unless the Purchasing Entity
approves in writing for the storage of Personal Data on a SaaS provider portable
device in order to accomplish work as defined in the statement of work.
16.18 Subscription Terms
SaaS provider grants to a Purchasing Entity a license to: (i) access and use the
Service for its business purposes; (ii) for SaaS, use underlying software as
embodied or used in the Service; and (iii) view, copy, upload and download (where
applicable), and use SaaS provider's documentation.
The following Exhibit applies to the Special Terms and Conditions:
SECTION 2-C EXHIBIT 4 - SVAR DETAILED REPORTING TEMPLATE
End of Section 2-C
PART 2 of the Solicitation Documents SECTION 2-C: Special Terms and Conditions
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Request for Proposal
Arizona 7ntof
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Solicitation No. BPM002338
State Proc
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
SECTION 2-D:
Uniform Terms and Conditions
Version: 9 (71112013)
1.0 Definition of Terms
As used in the Contract, the terms listed below are defined as follows:
1.1 Attachment
"Attachment' means any item the solicitation requires the Offeror to submit as part of the
Offer.
1.2 Contract
"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.
1.3 Contract
"Contract Amendment" means a written document signed by the Procurement Officer that is
Amendment
issued for the purpose of making changes in the Contract.
1.4 Contractor
"Contractor" means any Person who has a Contract with the State.
1.5 Days
"Days" means calendar days unless otherwise specified.
1.6 Exhibit
"Exhibit' means any item labeled as an Exhibit in the Solicitation or placed in the Exhibits section
of the Solicitation.
1.7 Gratuity
"Gratuity" means a payment, loan, subscription, advance, deposit of money, services, or
anything of more than nominal value, present or promised, unless consideration of substantially
equal or greater value is received.
1.8 Materials
"Materials" means all property, including equipment, supplies, printing, insurance and leases of
property but does not include land, a permanent interest in land or real property or leasing
space.
1.9 Procurement
"Procurement Officer" means the person, or his or her designee, duly authorized by the State to
Officer
enter into and administer Contracts and make written determinations with respect to the
Contract.
1.10 Services
"Services" has the meaning given in A.R.S. § 41-2503(35), which, for convenience of reference
only, is "... the furnishing of labor, time, or effort by [the] [C]ontractor or [S]ubcontractor 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." Services include Building Work and the service aspects of software described in
paragraph 1.8.
1.11 State
"State" means the State of Arizona and Department or Agency of the State that executes the
Contract.
1.12 State Fiscal Year
"State Fiscal Year" means the period beginning with July 1 and ending June 30.
1.13 Subcontract
"Subcontract' means any Contract, express or implied, between the Contractor and another
party or between a subcontractor and another party delegating or assigning, in whole or in part,
the making or furnishing of any material or any service required for the performance of the
Contract.
2.0 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
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Request for Proposal
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Solicitation No. BPM002338
State Proc
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
Statutes (A.R.S.) Title 41, Chapter 23, and it's implementing rules, Arizona Administrative Code
(A.A.C.) Title 2, Chapter 7.
2.2 Implied Terms
Each provision of law and any terms required by law to be in this Contract are a part of this
Contract as if fully stated in it.
2.3 Contract Order
In the event of a conflict in the provisions of the Contract, as accepted by the State and as they
of Precedence
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.
2.4 Relationship of
The Contractor under this Contract is an independent Contractor. Neither party to this Contract
Parties
shall be deemed to be the employee or agent of the other party to the Contract.
2.5 Severability
The provisions of this Contract are severable. Any term or condition deemed illegal or invalid
shall not affect any other term or condition of the Contract..
2.6 No 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.
2.7 No Waiver
Either party's failure to insist on strict performance of any term or condition of the Contract shall
not be deemed a waiver of that term or condition even if the party accepting or acquiescing in
the nonconforming performance knows of the nature of the performance and fails to object to
it.
3.0 Contract Administration and Operation
3.1 Records
Under A.R.S. § 35-214 and § 35-215, the Contractor shall retain and shall contractually require
each subcontractor to retain all data and other "records" relating to the acquisition and
performance of the Contract for a period of five years after the completion of the Contract. All
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.
3.2 Non -Discrimination
The Contractor shall comply with State Executive Order No. 2009-09 and all other applicable
Federal and State laws, rules and regulations, including the Americans with Disabilities Act.
3.3 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.
3.4 Facilities Inspection
The Contractor agrees to permit access to its facilities, subcontractor facilities and the
and Materials Testing
Contractor's processes or services, at reasonable times for inspection of the facilities or
materials covered under this Contract. The State shall also have the right to test, at its own cost,
the materials to be supplied under this Contract. Neither inspection of the Contractor's facilities
nor materials testing shall constitute final acceptance of the materials or services. If the State
determines noncompliance of the materials, the Contractor shall be responsible for the payment
of all costs incurred by the State for testing and inspection.
3.5 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
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Request for Proposal Arizona Department of
Administration
Solicitation No. BPM002338 State Procurement Office
Description: Software Value -Added Reseller 100 N 15th Ave., Suite 402
Phoenix, AZ 85007
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.
3.6 Advertising,
The Contractor shall not use, advertise or promote information for commercial benefit
Publishing and
concerning this Contract without the prior written approval of the Lead State Procurement
Promotion of Contract
Officer. The Contractor shall not make any representations of NASPO ValuePoint's opinion or
position as to the quality or effectiveness of the services that are the subject of this Master
Agreement without prior written consent from NASPO ValuePoint. Failure to adhere to this
requirement may result in termination of the Master Agreement for cause.
3.7 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.
3.8 Ownership of
Any and all intellectual property, including but not limited to copyright, invention, trademark,
Intellectual Property
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.
3.9 Federal Immigration
The contractor shall comply with all federal, state and local immigration laws and regulations
and Nationality Act
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.
3.10 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.
3.11 Offshore Performance Any services that are described in the specifications or scope of work that directly serve the
of Work Prohibited. State of Arizona or its clients and involve access to secure or sensitive data or personal client
data shall be performed within the defined territories of the United States. Unless specifically
stated otherwise in the specifications, this paragraph does not apply to indirect or 'overhead'
services, redundant back-up services or services that are incidental to the performance of the
contract. This provision applies to work performed by subcontractors at all tiers.
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Arizona 7ntof
Adm
Solicitation No. BPM002338
State Proc
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
4.0 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 I.R.S. W9
Form on file with the State of Arizona, unless not required by law
4.4 Availability of Funds Funds may not presently be available for performance under this Contract beyond the current
for the Next State state fiscal year. No legal liability on the part of the State for any payment may arise under this
fiscal year Contract beyond the current state fiscal year until funds are made available for performance of
this Contract.
4.5 Availability of Funds Should the State Legislature enter back into session and reduce the appropriations or for any
for the current State reason and these goods or services are not funded, the State may take any of the following
fiscal year actions:
5.0 Contract Changes
5.1 Amendments
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
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. 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 The Contractor shall not assign any right nor delegate any duty under this Contract without the
Delegation prior written approval of the Procurement Officer. The State shall not unreasonably withhold
approval.
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Adm
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State Proc
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
6.0 Risk and Liability
6.1 Risk of Loss The Contractor shall bear all loss of conforming material covered under this Contract until
received by authorized personnel at the location designated in the purchase order or Contract.
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 indemniee, are caused by the act, omission,
negligence, misconduct, or other fault of the indemnitor, its officers, officials, agents,
employees, or volunteers."
6.3 Indemnification — The Contractor shall indemnify and hold harmless the State against any liability, including costs
Patent and Copyright 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 not 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.
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 anytime 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
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Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
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 The Contractor assigns to the State any claim for overcharges resulting from antitrust
Violations violations to the extent that those violations concern materials or services supplied by third
parties to the Contractor, toward fulfillment of this Contract.
7.0 Warranties
7.1 Liens
The Contractor warrants that the materials supplied under this Contract are free of liens and
shall remain free of liens.
7.2 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.
7.4 Inspection/Testing
The warranties set forth in subparagraphs 7.1 through 7.3 of this paragraph are not affected by
inspection or testing of or payment for the materials by the State.
7.5 Compliance
The materials and services supplied under this Contract shall comply with all applicable Federal,
with Laws
state and local laws, and the Contractor shall maintain all applicable licenses and permit
requirements.
7.6 Survival of Rights and
7.6.1. Contractor's Representations and Warranties. All representations and warranties made by
Obligations after
the Contractor under this Contract shall survive the expiration or termination hereof. In
Contract Expiration or
addition, the parties hereto acknowledge that pursuant to A.R.S. § 12-510, except as
Termination
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.
8.0 State's Contractual
Remedies
8.1 Right to
If the State in good faith has reason to believe that the Contractor does not intend to, or is
Assurance
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.
8.2 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
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Request for Proposal
Arizona Department of
Administration
Solicitation No. BPM002338
State Procurement Office
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
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.
8.3 Non-exclusive
The rights and the remedies of the State under this Contract are not exclusive.
Remedies
8.4 Nonconforming
Materials or services supplied under this Contract shall fully comply with the Contract. The
Tender
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.
8.5 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 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.
9.0 Contract Termination
9.1 Cancellation for Pursuant to A.R.S. § 38-511, the State may cancel this Contract within three (3) years after
Conflict of Interests 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.
9.2 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.
9.3 Suspension or The State may, by written notice to the Contractor, immediately terminate this Contract if the
Debarment 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.
9.4 Termination for The State reserves the right to terminate the Contract, in whole or in part at any time when in
Convenience 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,
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Arizona Department of
Administration
Solicitation No. BPM002338
State Procurement Office
Description: Software Value -Added Reseller
100 N 15th Ave., Suite 402
Phoenix, AZ 85007
work completed and materials accepted before the effective date of the termination. The cost
principles and procedures provided in A.A.C. 112-7-701 shall apply.
9.5 Termination for
9.5.1. In addition to the rights reserved in the contract, the State may terminate the Contract in
Default
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 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
The Contractor shall continue to perform, in accordance with the requirements of the Contract,
Performance Through
up to the date of termination, as directed in the termination notice.
Termination
10.0 Contract Claims
10.1 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.
11.0 Arbitration
11.1 Arbitration The parties to this Contract agree to resolve all disputes arising out of or relating to this contract
through arbitration, after exhausting applicable administrative review, to the extent required by
A.R.S. § 12-1518, except as may be required by other applicable statutes (Title 41).
12.0 Comments Welcome
12.1 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 15th Avenue, Suite 402, Phoenix, Arizona,
85007.
End of Section 2-D
End of Part 2
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Request for Proposal
Arizona Department of
Solicitation No. BPM002338
Administration
State Procurement Office
Description:
100 N 15th Ave., Suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
Part 3 of the Solicitation
CONTENTS:
SECTION 3-A: INSTRUCTIONS TO OFFERORS.....................................................2
SECTION 3-B: OFFER FORMS (ATTACHMENTS).................................................15
ATTACHMENT 1........ OFFER AND ACCEPTANCE FORM GENERAL..................16
ATTACHMENT 2-A.... EXPERIENCE AND CAPACITY QUESTIONNAIRE ............17
ATTACHMENT 2-B.... RESERVED..........................................................................32
ATTACHMENT 3-A.... METHOD PROPOSAL (METHOD OF APPROACH) ............ 33
ATTACHMENT 3-B.... KEY PERSONNEL PROPOSAL...........................................45
ATTACHMENT 3-C ... PROPOSED SUBCONTRACTORS.....................................48
ATTACHMENT 3-D ... BOYCOTT OF ISRAEL DISCLOSURE................................49
ATTACHMENT 4........ PRICING SHEET..................................................................51
ATTACHMENT 5-A.... CONFIDENTIAL INFORMATION DESIGNATION................52
ATTACHMENT 5-B.... CONFORMANCE STATEMENTS........................................54
ATTACHMENT 5-C ... LETTER OF INSURABILITY.................................................59
ATTACHMENT 5-D.. RESERVED...............................................................36
ATTACHMENT 5-E.... OFFER CHECKLIST.............................................................61
PART 3 of the Solicitation Documents
Template version 7.0 (28-JAN-2020)
Table of Contents
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
Section 3-A: Instructions to Offerors
1.0 Definition of Terms
As used in these Instructions to Offerors, the terms listed below are defined as follows:
1.1 Arizona
"Arizona Procurement Code" means, collectively, Title 41 Chapter 23, et. sequitur, in
Procurement
the Arizona Revised Statutes (abbreviated "A.R.S.") and administrative rules
Code;
R2-7-101 et. sequitur in the Arizona Administrative Code (abbreviated "A.A.C.").
A.R.S.;
A.A.C.
NOTE: There are frequent references to the Arizona Procurement Code throughout
the Solicitation Documents, therefore, you will need to be familiar with its provisions
to be able to understand the Solicitation Documents fully.
The Arizona Department of Administration State Procurement Office provides a
reference compilation of the Arizona Procurement Code on its website:
https://Spo.az.goy/administration-policy/state-procurement-resource/procurement-regulations
The Arizona State Legislature provides the official A.R.S. online at:
http://www.azleq.qov/ArizonaRevisedStatutes.asp
The Office of the Arizona Secretary of State provides the official A.A.C. online at:
http://www.azsos.qov/rules/arizona-administrative-code
1.2 Clarifications
"Clarifications" means, per A.A.C. R2-7-C313, communications between the
Procurement Officer and Offeror for the purpose of providing a greater mutual
understanding of the Offer. Clarifications may include demonstrations, questions and
answers, or elaborations on previously -submitted information.
1.3 Contract
"Contract' is defined in paragraph 1.2 of the Uniform Terms and Conditions.
1.4 Contract
"Contract Amendment' is defined in paragraph 1.3 of the Uniform Terms and
Amendment
Conditions.
1.5 Contract Terms
Contract Terms and Conditions" is defined in paragraph 1.11 of the Special Terms
and Conditions
and Conditions.
1.6 Contractor
"Contractor" is defined in paragraph 1.4 of the Uniform Terms and Conditions.
1.7 Evaluation
"Evaluation" means, per A.A.C. R2-7-316, the process whereby the Procurement
Officer will determine which Responsive offers, revised offers, and best and final
offers are the most advantageous to State taking into consideration the evaluation
factors set forth in the Solicitation Documents.
1.8 Negotiation "Negotiation" means, per A.A.C. R2-7-101(32), an exchange or series of exchanges
between State and an offeror for the purposes set forth in A.A.C. R2-7-C314.
1.9 Not Susceptible "Not Susceptible for Award" means, per A.A.C. R2-7-C311, that the relevant offer
for Award has been determined by the Procurement Officer to fail one or more of the tests and
comparisons set forth therein. NOTE: A determination of Not Susceptible for Award
and a determination of Responsive are mutually exclusive.
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SECTION 3-A: Instructions to Offerors
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Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
1.10 Offer:
"Initial Offer" means, per A.A.C. R2-7-101(33), Offeror's proposal submitted to State
Initial Offer;
in response to the Solicitation, as initially submitted.
Revised Offer;
Best and Final
"Revised Offer" means any revised versions of the Initial Offer that Offeror has
Offer (BAFO)
submitted to State at State's request as permitted under A.A.C. R2-7-C314 and
R2-7-C315.
"Best and Final Offer" ("BAFO") means, per A.A.C. R2-7-101(8), the Revised Offer
submitted after negotiations have been completed that contain Offeror's most
favorable terms for price, service, and products to be delivered.
Reference to "an Offer, "the Offer," or "your Offer" means any of the Initial Offer, a
Revised Offer, or the Best and Final Offer.
1.11 Offeror
"Offeror" is the Person submitting an Offer; instructions addressed to "you" and
references to "your" items are to be construed as being synonymous with "Offeror"
and "Offeror's" throughout these Instructions to Offerors.
1.12 Pricing
"Pricing Document" means Section 2-B of the Solicitation Documents. Also known
Document
as Pricing Document as defined in the Special Terms and Conditions.
1.13 The State's e-
"The State's e-Procurement System" is defined in paragraph 1.47 of the Special
Procurement
Terms and Conditions.
System
1.14 Procurement
"Procurement Officer" means the person, or his or her designee, who has been duly
Officer
authorized by State to administer the Solicitation and make written determinations
with respect to the Solicitation. The Procurement Officer is identified in The State's e-
Procurement System.
1.15 Small Business
"Small Business" means a for -profit or not -for -profit organization, including its
affiliates, with fewer than 100 full-time employees or gross annual receipts of less
than $4 million for the last complete fiscal year.
1.16 Solicitation
"Solicitation" means this procurement solicitation, which State is issuing as either:
1. an invitation for bids ("IFB") under A.R.S. § 41-2533;
2. a request for proposals ("RFP") under A.R.S. § 41-2534;
3. a request for quotations ("RFQ") under A.R.S. § 41-2535; or
4. a request for qualifications under A.R.S. §41-2558.
Refer to the Solicitation Summary for which of the foregoing is this Solicitation.
1.17 Solicitation
"Solicitation Amendment" means, per A.A.C. R2-7-303, a change to the Solicitation
Amendment
that has been issued by Procurement Officer.
1.18 Solicitation
"Solicitation Summary" means Section 1 of the Solicitation Documents.
Summary
1.19 State
"State" is defined in paragraph 1.11 of the Uniform Terms and Conditions.
1.20 Subcontract
"Subcontract" is defined in paragraph 1.13 of the Uniform Terms and Conditions.
1.21 Subcontractor
"Subcontractor" is defined in paragraph 1.48 of the Special Terms and Conditions.
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., Suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
2.0 Solicitation Inquiries
2.1 Duty to
Examine the entire Solicitation, obtain clarification in writing for any questions or
Examine
concerns by submitting inquiries, then examine your Offer thoroughly and carefully
for completeness and accuracy before submitting it. Lack of care in preparing an
Offer will not be grounds for modifying or withdrawing it after the due date and time.
2.2 State Contact
Direct all inquiries related to the Solicitation to Procurement Officer, including
Person
requests for or inquiries regarding standards referenced in the Solicitation. Apart
from the State's e-Procurement System Help Desk, do not contact any State
personnel other than Procurement Officer concerning the Solicitation while it is in
progress, through and including award.
2.3 Submission
Submit all inquiries related to the Solicitation in The State's e-Procurement System.
of Inquiries
The Procurement Officer will not respond to inquiries received in any other manner.
1. Submit technical inquiries about navigating and/or submitting proposals in the
State's e-Procurement System to the State's e-Procurement System Help
Desk:
■ by phone at (602) 542-7600, option2; or
■ by email to app .azdoa.gov.
2. Submit all other inquiries about the Solicitation using the "Discussions with
Buyer" tab in the State's e-Procurement System. Always refer to the
appropriate Solicitation document by page and paragraph number. Except for
technical inquiries about navigating and/or submitting proposals in the State's
e-Procurement system, the State is not responsible for responding to any
inquiries submitted less than three (3) business days before the Bid/Offer
due date and time.
2.4 Timeliness
Any inquiry or exception to the solicitation shall be submitted as soon
as possible and should be submitted at least three (3) days before the
Bid/Offer due date and time for review and determination by the
State. Failure to do so may result in the inquiry not being considered
for a Solicitation Amendment.
2.5 Verbal or Email
An Offeror shall not rely on verbal responses to inquiries. A verbal
Responses
reply to an inquiry does not constitute a modification of the
solicitation.
2.6 Solicitation
Only a Solicitation Amendment issued in The State's e-Procurement System can
Amendments
change the Solicitation.
2.7 Pre -Offer A Pre -Offer Conference will be held at the time and place indicated in
Conference
the solicitation's "Process" field as found within the State's e-
Procurement system, (https://gpp.az.gov); attendance is not required.
The purpose of the conference will be to clarify the contents of the
solicitation in order to prevent any misunderstanding of the State of
Arizona's position. Any doubt as to the requirements of the solicitation
or any apparent omission or discrepancy should be presented to the
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
State at the conference. The State of Arizona will then determine the
appropriate action necessary, if any, and issue a written amendment to
the solicitation if required. Oral statements or instructions will not
constitute an amendment to the solicitation.
Persons with a disability may request a reasonable accommodation,
such as a sign language interpreter, or this document in an alternative
format, by contacting the State Procurement Office. Requests should
be made as early as possible to allow sufficient time to arrange for
accommodation.
3.0 Offer Preparation
3.1 Online
The Solicitation Documents are only provided online in The State's e-Procurement
Documents
System; State will not provide any printed copies or other formats.
SUPPLIER REFERENCE GUIDES at: https://spo.az.gov/app/supplier/QRG
3.2 Electronic
When submitting an Offer, only include files that are Microsoft Word documents,
Submissions
Excel workbooks, or PowerPoint presentations and Adobe Acrobat documents.
Obtain advance approval from the State's e-Procurement Help Desk before
submitting files in any other format.
Maximum file size allowed is 25mb.
3.2.1 Separate your documents into three (3) parts/files:
Pricing: Prepare your pricing submission following the instructions in 4.3
Pricing below.
Confidential documents:
• Use Attachment 5-A (Designation of Confidential Information) to
indicate that your offer contains Confidential Information.
• Prepare and submit your confidential information following the
instructions in 4.7 Confidential Information below.
Non -Confidential documents: All other documents not considered
Confidential can be uploaded in a single file following the file size
requirement.
3.3 Deviations in
When submitting an Offer, clearly indicate in writing any deviations from the
Offer
Specifications or other Solicitation technical requirements documents. Any un-
identified deviation will be deemed void upon submission.
NOTE: Deviations are technical exceptions of a significant but not material nature,
typically having to do with part/model numbers, details of attachments, mountings,
clearances, internal configurations, etc., and are not to be confused with the material
exceptions covered in paragraph 3.5.
3.4 Evidence of
Every one of your Offer submissions (e.g. initial submission and any subsequent
Intent
re -submission) must contain Attachment 1 [Offer and Acceptance Form] with a
signature by your duly authorized officer, executive, principal, or agent. The
signature will be deemed to signify your intent to be bound by that Offer and the
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
terms of the Solicitation, and your representation that the information you have
provided in that Offer is true and accurate.
3.5 Exceptions to
If you are submitting an Offer conditioned on exceptions to the Solicitation
Solicitation
Documents, indicate "NO" on Attachment 5-B [Conformance Statement] and provide
Documents
the required justification. Any exceptions taken elsewhere in an Offer or any of your
preprinted or standard terms will be void in that Offer and without force or effect in
any resulting contract.
3.6 Insurance and
Provide the evidence of insurance availability, evidence of insurance in place,
Bonds
evidence of bonding capacity, bonds in hand, or other security that are called for in
Attachment 5-C [Insurance and Bonding Evidence].
If you intend to withhold or redact any element of your evidence of insurance policy
compliance required by Section 6.2 of the Special Terms and Conditions [Contractor
Insurance Requirements] on the grounds that it is confidential information, then you
must claim it as such and submit the necessary substantiated justification
with each Offer using Attachment 5-A [Designation of Confidential Information]
and as per Instruction 4.7 Confidential Documents below.
Unless Procurement Officer has determined that your evidence documentation, or
some or all your insurance program, is confidential information under paragraph 4.7,
refusing after contract award to provide the complete, un-redacted copies of policies
as called for in that exhibit will be a material breach of the Contract.
3.7 Identification of
State is subject to Arizona Transaction Privilege Tax as well as certain local
Taxes in Offer
sales/use taxes, as described in the Contract Terms and Conditions.
3.8 Excise Tax
State is exempt from certain federal excise tax on manufactured goods; State will
provide the necessary exemption certificates as evidence to the extent exemption
applies to the Work.
3.9 Tax
You must provide to State your federal employer identification number or social
Identification
security number for the purposes of reporting monies paid under the Contract to
appropriate taxing authorities. The submission is mandatory under 26 U.S.C.
§6041A. If the identifier provided is a social security number, State shall only use it
for tax reporting purposes and only share it with appropriate government officials.
3.10 Disclosure
If you are submitting an Offer despite having been debarred, suspended or
otherwise lawfully precluded from participating in any public procurement activity,
including being disapproved as a subcontractor with any federal, state or local
government, or if any such preclusion from participation from any public procurement
activity is currently pending, then you must provide with that Offer the name and
address of the governmental unit, the effective date, duration, and circumstances of
the suspension, debarment, or other preclusion, and your justification for State to
consider the Offer despite the suspension, debarment, or other preclusion. Include in
your disclosure any suspension, debarment, or other preclusion that is pending, but
indicate that it is pending.
3.11 Federal
By signing an Offer, you will be deemed to have represented that both you and all
Immigration
your proposed subcontractors are in compliance with federal immigration laws and
Laws
regulations relating to the immigration status of their personnel. State may, at its
discretion, demand evidence of compliance during Evaluation, which you must
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
provide promptly. Not providing the evidence will be grounds for Procurement Officer
to determine that the Offer is Not Susceptible for Award.
3.12 Cost of Offer
State will not reimburse to you or any of your prospective subcontractors, suppliers,
Preparation
or consultants any costs associated with responding to the Solicitation.
3.13 Offshore
Any services that are described in the specifications or scope of work that directly
Performance of
serve the State of Arizona or its clients, or any other Participating Entity, and involve
Work Prohibited
access to secure or sensitive data or personal client data shall be performed within
the defined territories of the United States. Unless specifically stated otherwise in the
specifications, this paragraph does not apply to indirect or 'overhead' services,
redundant back-up services or services that are incidental to the performance of the
contract. This provision applies to work performed by subcontractors at all tiers.
Offerors shall declare all anticipated offshore services in the proposal.
4.0 Submission of Offer
4.1 Required Offer INITIAL SUBMISSION:
Content Submit all of the Initial Offer content called for in Section 3-B: Offer Forms
(Attachments).
BEST and FINAL OFFER
A new round is created in APP for the submission of the Best and Final Offer
(BAFO).
The BAFO must contain all of the Attachments indicated in the applicable
Procurement Officer request for a Submitted Offer. Make revisions in response to the
negotiations / discussions and the Procurement Officer's Request for Best and Final
Offer in all applicable documents and pricing grid in the State's e-procurement
system.
The new round must be acknowledged and an updated Offer and Acceptance Form
with the required signature and date must be uploaded.
If you were required to input $1.0 for each line item in the items (F) tab in APP with
your original offer, you must also input $1.00 for each line item in the items (F) tab
with your BAFO submission.
4.2 Attachment If an Attachment indicates that a "Form" is being provided for an Attachment, then
Forms the Solicitation includes the required form and format for submitting the Attachment.
No other form or format will be accepted, and your Offer can be determined to be
Not Susceptible for Award if you submit an unofficial form.
If, however, the Solicitation Documents indicate that you are allowed to attach
additional documents regarding a particular question or line item, then doing so will
be acceptable so long as the filled -out Attachment clearly states "See Attachment X
Supplement (#1 of 2)", etc., and the additional document is clearly marked as
"Attachment X Supplement (#1 of 2)," etc.
NOTE (1): Each Form has a blank space to list your Attachment Supplements.
NOTE (2): You must upload each such "additional" document as an individual file
and name the file to match the document title.
NOTE (3): Do not include non-specific marketing materials in an Offer. If something
is not specifically called for, then including it will not be helpful during Evaluation, and
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., Suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
might in fact be grounds for down -grading if it does not address your experience and
capacity to carry out the work for this Solicitation.
4.3 Pricing Pricing must be shown in the EXCEL document titled as follows:
Attachment 4 - Pricing Sheet
You must complete at least one (1) Optional Line Item or all Required Line Items in
the Items (F) tab in APP in order for your Offer to be considered.
4.4 Submission
Submit each Offer online in The State's e-Procurement System before the "Bid
Opening Date" indicated for the "Solicitation No." State will not consider a
proposal submitted by any other method other than The State's e-Procurement
System, and it will be deemed void upon submission. By A.A.C. R2-7-C307, State
will not consider later offers. State will give no extension or grace period for delays
or incomplete proposals caused by internet connectivity problems, file uploading
difficulties, or misunderstanding of the requirements or procedures for online
submission in The State's e-Procurement System. If your proposal is not submitted
correctly, completely, and in conformance to these Instructions herein, then
Procurement Officer may determine it Not Susceptible for Award.
NOTE: Using the State's e-Procurement System requires a certain level of technical
competency; select your staff to submit proposals and handle other Solicitation
general matters in The State's e-Procurement System carefully, since the State's e-
Procurement System Help Desk cannot do any of the required actions for you.
4.5 Solicitation
Acknowledge each Solicitation Amendment in The State's e-Procurement
Amendments
System. By A.A.C. R2-7-C303(C), you must acknowledge every Solicitation
Amendment issued as of the due date and time for an Offer to be Responsive.
Amendments to the Solicitation create new rounds in APP. You must acknowledge
each round created by an amendment for your Offer in order for your Offer to be
Responsive.
In the event you have submitted an offer prior to a Solicitation amendment, you must
acknowledge and upload your offer documents to the new round.
If you have submitted your proposal early, you must be alert for subsequent
Solicitation Amendment. If an Amendment is issued after your submission, but
before Bid/Offer due date and time, then the Procurement Officer may determine the
Offer to be Non -Responsive if you have not acknowledged the Amendment.
4.6 Amending or
You cannot amend or withdraw a submitted proposal after the Bid/Offer due date
Withdrawing
and time unless expressly permitted under applicable law.
4.7 Confidential
If you believe that a portion of your Offer (or a protest or other correspondence)
Information
contains a trade secret or other manner of your proprietary information, you must:
1. Indicate on Attachment 5-A [Designation of Confidential Information] that your
proposal contains such claimed confidential information; and,
2. Separate the documents you claim to be confidential from the offer documents
and upload them separately. Prepare to upload each confidential document as a
separate confidential document in your response following the instructions in the
Arizona Department of Administration Procurement page under AZ Procurement
Portal - APP for Suppliers Tab. Click on the Supplier Reference Guides, scroll
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
down to How to Add Confidential Documents to a Response.
https://spo.az.gov/ai)p/supplier/QRG .
and,
3. Upload each document you claim to be confidential separate from each other
and follow the naming convention:
Section —A —Supplement Your file Name —Confidential.
Simply indicating that the proposal contains confidential information is not sufficient
to claim the protections under A.A.C. R2-7-C317 — Attachment 5 A must be
accompanied by a detailed explanation as to why each item or category of items in
the proposal should be designated confidential information.
Submit Confidential Information/Documentation as a Supplement(s) to Section 5-A,
follow the naming convention: Section —A—Supplement Your File Name —Confidential.
DO NOT incorporate information you are requesting to be determined as
Confidential in any other section of your response. If the Confidential
information is to be responsive to another Section/Question, simply provide a
statement providing the Section 5-A Supplement Title to be reviewed by the
Evaluators.
Procurement Officer shall review your claim of confidentiality and provide a written
determination; until a written determination has been made, Procurement Officer
shall not disclose the claimed information to anyone who does not have a legitimate
State interest. If Procurement Officer denies the claim of confidentiality, you may
appeal the determination to the State Procurement Administrator within the time
specified in the determination.
NOTE: Contract terms and conditions, pricing, and information generally available to
the public are not and will not be designated confidential information.
4.8 Public Record Once submitted and opened by Procurement Officer, your Offer is a public record
and must be retained by State for 6 (six) years. All offers will be available for public
inspection in the State's e-Procurement System after the resulting contracts have
been awarded, except for any portions that were determined to be confidential
information.
Procurement Officer shall make the names of Persons who submitted offers
available in The State's e-Procurement System promptly after the opening date.
4.9 Offeror By signing the Offer and Acceptance Form (or other official contract form specified
Certification by Procurement Officer), you will be deemed to have certified that:
1. you did not engage in collusion or other anti -competitive practices in
connection with the preparation or submission of your Offer; and
2. you do not discriminate against any employee or applicant for employment or
person to whom you provide services because of race, color, religion, sex,
national origin, or disability, and that you comply with an applicable federal,
state, and local laws and executive orders regarding employment.
5.0 Responsibility; Responsiveness and Acceptability
PART 3 of the Solicitation Documents
SECTION 3-A: Instructions to Offerors
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
5.1 Responsibility In accordance with A.R.S. 41-2534(G), A.A.C. R27-C312 and R2-7-C316, the State
shall consider the following in determining Offeror's responsibility, as well, as the
responsiveness and acceptability of their proposals. The State will consider, but is
not limited to, the following in determining an Offeror's responsibility as well as
susceptibility to Contract Award:
1. Whether the Offeror has had a contract within the last five (5) years that was
terminated for cause due to breach or similar failure to comply with the terms
of the contract;
2. Whether the Offeror's record of performance includes factual evidence of
failure to satisfy the terms of the Offeror's agreements with any party to a
contract. Factual evidence may consist of documented vendor performance
reports, customer complaints and/or negative references;
3. Whether the Offeror is legally qualified to contract with the State and the
Offeror's financial, business, personnel, or other resources, including
subcontractors;
4. Legally qualified includes if the vendor or if key personnel have 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.
5. Whether the Offeror promptly supplied all requested information concerning its
responsibility;
6. Whether the Offer was sufficient to permit evaluation by the State, in
accordance with the evaluation criteria identified in this Solicitation or other
necessary offer components. Necessary offer components include:
attachments, documents or forms to be submitted with the offer, an indication
of the intent to be bound, reasonable or acceptable approach to perform the
Scope of Work, signed Solicitation Amendments, references to include
experience verification, adequacy of financial/business/personal or other
resources to include a performance bond and stability including
subcontractors and any other data specifically requested in the Solicitation;
7. Whether the Offer was in conformance with the requirements contained in the
Scope of Work, Terms and Conditions, and Instructions for the Solicitation and
its Amendments, including the documents incorporated by reference;
8. Whether the Offer limits the rights of the State;
9. Whether the Offer includes or is subject to unreasonable conditions, to include
conditions upon the State or necessary for successful Contract performance.
The State shall be the sole determiner as to the reasonableness of a
condition;
10. Whether the Offer materially changes the contents set forth in the Solicitation,
which includes the Scope of Work, Terms and Conditions, or Instructions; and,
11. Whether the Offeror provides misleading or inaccurate information.
5.2 Responsiveness Proposals that do not contain information sufficient to evaluate the proposal in
and Acceptability accordance with the factors identified in the solicitation or other necessary proposal
components may not be considered responsive and/or acceptable. Necessary
components include an indication of the Offeror's intent to be bound, price proposal,
solicitation amendments, bond and reference data as required.
Proposal Content. The Offeror shall make a firm commitment to provide services as
required and proposed.
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
• The material contained in the Offer shall be relevant to the service
requirements stated in the solicitation.
• It is to be submitted in a sequence that reflects the scope of work section of
this document.
• It is to include information relevant to the designated evaluation criteria.
• Failure to include the requested information may have a negative impact on
the evaluation of the Offeror's proposal.
5.3 Eligibility for If Procurement Officer determines an offeror is Not Responsible, then he or she is
Evaluation and not permitted by A.A.C. R2-7-C314 to give further consideration to its offer or include
Negotiation it in any Negotiation or make Evaluation of its offer. If, however, Procurement Officer
determines that an offer is Responsive (i.e., there is no applicable determination of
Not Susceptible for Award), then he or she is obliged by A.A.C. R2-7-C314 to make
Evaluation of it and include the offeror in the immediate round of Negotiation (if there
is any Negotiation).
If Procurement Officer determines subsequently that your Revised Offer is Not
Susceptible for Award by virtue of comparison to other revised offers per A.A.C.
R2-7-C314(A)(3), then he or she will not include you in any further Negotiation. For
clarity of intent, the foregoing means that Procurement Officer may reduce the
number of offers that are "susceptible for award" with each successive round of
Negotiation, since the purpose of Negotiation is to achieve best value for State.
6.0 Evaluation of Offers
6.1 Offer Validity
By submitting an Offer, you agree to hold it open for the validity period specified in
Period
the Solicitation Summary. If no validity period is specified therein, then you shall hold
your Offer open for 180 (one hundred eighty) days. The specified or default validity
period (whichever applies) re -starts upon submission of each Revised Offer or a
Best and Final Offer.
6.2 Clarifications
Upon receipt and opening of proposals submitted in response to this solicitation, the
State may request oral or written clarifications, including demonstrations or questions
and answers, for the sole purpose of information gathering or for eliminating minor
informalities or correcting nonjudgmental mistakes in proposals. Clarifications shall
not otherwise afford Offerors the opportunity to alter or change their proposal.
6.3 Oral
The State may request oral presentations. If requested, the Offeror shall be
Presentations
available for oral presentations with no more than ten (10) business days advance
notice. Participants in the oral presentations should include the Offeror's key
persons. Such oral presentations shall not otherwise afford an Offeror the
opportunity to alter or change its Offer.
6.4 Cost or Pricing
Submit any cost or pricing data promptly that Procurement Officer requests under
Data
A.R.S § 41-2543 per A.A.C. R2-7-702(B)(2). Procurement Officer may make the
following preconditions for eligibility and award:
1. submission of appropriate cost or pricing data under A.A.C. R2-7-704;
2. determination that the submitted cost or pricing data demonstrates that pricing
is fair and reasonable under A.A.C. R2-7-702(A); and,
3. determination that the data is not defective under A.A.C. R2-7-705.
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
6.5 Evaluation
In accordance with the Arizona Procurement code A.R.S. § 41-2534, awards shall be
Criteria
made to the responsible Offeror(s) whose proposal is determined in writing to be the
most advantageous to the State based upon the evaluation criteria listed below. The
evaluation factors are listed in their relative order of importance.
6.5.1 Methodology;
6.5.2 Cost
6.5.3 Capacity of Offeror, Experience
6.6 Negotiations
In accordance with A.R.S. § 41-2534, after the initial receipt of proposals, the
Procurement Officer may conduct discussions with those Offerors who submit
proposals determined by the State to be reasonably susceptible of being selected for
award.
Procurement Officer will request a best and final offer from any offerors with whom
negotiation has been conducted, provided that, State may make award made without
any Negotiation and therefore every offeror is forewarned to always submit its offer
complete and on the most favorable terms initially, and not to assume any
opportunity for Negotiation.
6.7 Financial
You must be able to substantiate your financial stability to State's satisfaction as a
Stability
precondition of any contract award. Procurement Officer may demand
documentation such as current and audited financial statements, including income
and balance sheets, directly from you or may obtain reports from independent
financial rating services. Not providing the evidence will be grounds for Procurement
Officer determining your Offer is Not Susceptible for Award.
6.8 Consideration of
Procurement Officer may determine that your Offer is Not Susceptible for Award if it
Exceptions
is conditioned on an exception to a material aspect of the Solicitation. Even if
Procurement Officer determines that an exception is one that does not merit Not
Susceptible for Award determination, he or she may down -grade your Offer in
Evaluation if the exception is significant.
6.9 Consideration of
Procurement Officer may down -grade your Offer in Evaluation if it contains
Deviations
deviations that, in his or her determination, materially reduce the value to State of
affected Materials or Services across the life -cycle thereof.
6.10 Consideration of
Procurement Officer may credit any proposed prompt payment discounts for the
Prompt Payment
purpose of evaluating offer prices.
Discount
6.11 Consideration of
Procurement Officer shall not include Arizona Transaction Privilege Tax and other
Taxes
sales/use taxes for the purpose of evaluating offer prices.
6.12 Consideration of Regardless of the relative order assigned to cost in the Solicitation Summary, cost is
Cost an essential consideration in every award State makes; State's intent is always to
obtain the best pricing available and it strives to make its evaluations be a
straightforward comparison of best value between the responsible and responsive
proposals as far as possible to the extent permissible under the Arizona
Procurement Code.
6.13 Unit Price In the case of discrepancy in your Offer between a unit price or rate and an
Prevails extension of that unit price or rate, the unit price or rate will prevail.
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
6.14 Waiver and Notwithstanding any other provision of the Solicitation Documents, State reserves
Rejection the right to waive any minor informality, reject any or all offers or portions thereof or
cancel the Solicitation.
7.0 Award of Contract
7.1 Best Advantage Under A.A.C. R2-7-C317, contracts will be awarded to the responsible offeror(s)
to State whose offer(s) is/are determined to be most advantageous to the State based on the
stated evaluation criteria.
7.2 Number of Types State may make multiple awards or to award contracts by individual line items or
of Awards alternates, by group of line items or alternates, or to make an aggregate award, or
regional awards, whichever is determined to be most advantageous to State.
7.3 Contract Your Offer does not constitute a contract nor does it confer any right on you to the
Inception award of a contract. A contract is not created until your Offer has been accepted for
State by Procurement Officer's signature on the Offer and Acceptance Form. Notice
of award or of intent to award will not constitute State's acceptance of your Offer.
7.4 Contract
State may, at its option, consolidate the resulting contract documents after contract
Document
award. Examples of such consolidation are reorganizing Solicitation Documents and
Consolidation
those components of the Accepted Offer not pertaining to the contract's operation
and excluding any components of the Accepted Offer that were not awarded.
Contract document consolidation will not, however, include or be construed to
include any materially change the Solicitation or the Contract.
7.5 Viewing Awarded
To view awarded Contracts:
Contracts
1. Go to app.az.gov
2. Select: State Contracts (Blue tab)
3. Search using "Keywords:" enter name of solicitation Label and click on
"Search". A listing of Contracts with the description (name of Contract Set)
will appear below.
4. To view a Contract, click on pencil next to Contract number.
5. Contact Help Desk at 602-542-7600 for assistance.
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
8.0 Solicitation or Award Protests
Any protest must comply with and be resolved according to Arizona Revised Statutes Title 41, Chapter
23, Article 9, and rules adopted thereunder. Protests must be in writing and be filed with both
Procurement Officer and the State Procurement Administrator. Protest of the Solicitation must be received
before the Bid/Offer due date and time. Protest of a proposed award or of an award must be received
within 10 (ten) days after Procurement Officer makes the procurement file available for public inspection.
In either case, the protest must include:
1. the name, address, email address and telephone number of the interested party;
2. signature of the interested party or its representative;
3. identification of the purchasing agency and the solicitation or contract number;
4. a detailed statement of the legal and factual grounds of the protest including copies of relevant
documents; and
5. the form of relief being requested.
9.0 Comments Welcome
SEPARATELY AND APART FROM THIS SOLICITATION, The State Procurement Office periodically
reviews these Instructions to Offerors and welcomes any comments the public may have.
Please submit your comments to:
State Procurement Administrator,
State Procurement Office, 100 North 15th Avenue, Suite 402
Phoenix, Arizona, 85007
End of Section 3-A
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., Suite 402
Software Value -Added Reseller
Phoenix, AZ85007
Section 3-B: Offer Forms (Attachments)
ATTACHMENT 1........ OFFER AND ACCEPTANCE FORM....................................16
ATTACHMENT 2-A.... EXPERIENCE AND CAPACITY QUESTIONNAIRE ............17
ATTACHMENT 2-B.... RESERVED..........................................................................32
ATTACHMENT 3-A.... METHOD PROPOSAL (METHOD OF APPROACH) ............ 33
ATTACHMENT 3-B.... KEY PERSONNEL PROPOSAL...........................................45
ATTACHMENT 3-C ... PROPOSED SUBCONTRACTORS.....................................48
ATTACHMENT 3-D ... BOYCOTT OF ISRAEL DISCLOSURE................................49
ATTACHMENT 4........ PRICING SHEET..................................................................51
ATTACHMENT 5-A.... CONFIDENTIAL INFORMATION DESIGNATION................52
ATTACHMENT 5-B.... CONFORMANCE STATEMENTS........................................54
ATTACHMENT 5-C ... LETTER OF INSURABILITY.................................................59
ATTACHMENT 5-D.. RESERVED..........................................................................60
ATTACHMENT 5-E.... OFFER CHECKLIST.............................................................61
PART 3 of the Solicitation Documents
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15thAve., Suite402
Software Value -Added Reseller
Phoenix, AZ85007
Attachment 1
Offer and Acceptance Form
SUBMISSION OF OFFER: Undersigned hereby offers and agrees to provide SOFTWARE VALUE-ADDED RESELLER SERVICES in
compliance with the Solicitation indicated above and our Offer indicated by the latest dated version below:
Initial
Offer:
i.
X
X
Date
initial
2,
x
x
3
x
x
4,
x
x
Revised
date #1
initial
date #1
initial
date #1
initial
Offers:
5,
x
x
g,
x
x
7
x
x
date #4
initial
date #5
initial
date #6
initial
Best and
Final Offer:
8.
X
X
Date
initial
X
Offeror company name
X
Address
X
City I State I ZIP
X
Federal tax identifier (EIN or SSN)
X
Signature of person authorized to sign Offer
X
Printed name and title
X
Contact name and title
X X
Contact Email Address Contact phone number
CERTIFICATION: By signature in the above, Offeror certifies that it:
1. will not discriminate against any employee or applicant for employment in violation of Federal Executive Order 11246, [Arizona] State
Executive Order 2009-9 or A.R.S. §§ 41-1461 through 1465;
2. has not given, offered to give, nor intends to give at any time hereafter any economic opportunity, future employment, gift, loan, gratuity,
special discount, trip, favor, or service to a public servant in connection with the submitted offer. Failure to provide a valid signature
affirming the stipulations required by this clause will result in rejection of the Offer. Signing the Offer with a false statement will void the
Offer, any resulting contract, and may be subject to legal penalties under law;
3. complies with A.R.S. § 41-3532 when offering electronics or information technology products, services, or maintenance; and
4. is not debarred from, or otherwise prohibited from participating in any contract awarded by federal, state, or local government.
ACCEPTANCE OF OFFER: State hereby accepts the initial Offer, Revised Offer, or Best and Final Offer identified by the latest date and
number at the top of this form (the Accepted Offer). Offeror is now bound (as Contractor) to carry out the Work under the attached Contract,
of which the Accepted Offer forms a part. Contractor is cautioned not to commence any billable work or to provide any material or perform
any service under the Contract until Contractor receives the applicable Order or written notice to proceed from Procurement Officer.
State's Contract No. is:
Procurement Officer Signature
PART 3 of the Solicitation Documents
Template version 6.0 (18-NOV-2019)
The effective date of the Contract is: Contract awarded
Procurement Officer Printed Name
SECTION 3-13: Offer Forms
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., Suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
Attachment 2-A
Experience and Capacity Questionnaire
STATE MAY DETERMINE YOUR PROPOSAL IS NON -RESPONSIVE IF YOU DO NOT ANSWER ALL QUESTIONS FULLY
This Attachment is divided into three sections: 1) General Category, 2) Microsoft Category, and 3) Oracle
Category. Offerors need only answer questions in the category or categories for which they desire to be
considered for a contract award (indicate by checking the box next to the applicable category or
categories). In each applicable category, the Offeror shall provide a narrative response to each question
that demonstrates their understanding of the Scope of Work requirements and describes your company's
overall experience and capacity to provide the services stated in this solicitation. If there is a question that
is not applicable to the services required by the Scope of Work, you may mark it N/A.
EXPERIENCE AND CAPACITY QUESTIONS:
❑ 1) GENERAL CATEGORY (check if proposing in this category)
Question 1: Company Profile
The Offeror must include a narrative description of its organization. The narrative must include the
following:
1.1 Brief overview of business operations, with an emphasis on experience in regards to the
scope of work. Provide an overview of the Offeror's business history, description of current
services provided, and a list of current customer base
1.2 Date established;
1.3 Ownership (public, partnership, subsidiary, etc.);
1.4 Location in which the Offeror is incorporated;
1.5 Address of "Main Office" (e.g. Corporate Headquarters and any satellite offices responsible
for performance of proposed tasks;
1.6 Offeror's organizational chart relevant to the Contract, specifically identifying the key point of
contact for all questions related to the submitted offer;
1.7 Full disclosure of any potential conflict of interest between the Offeror and any State
employee who functions or has responsibilities in the review or approval of the undertaking or
carrying out of the Contract;
1.8 A Statement of whether, in the last five (5) years, the Offeror has filed (or had filed against it)
any bankruptcy or insolvency proceeding, whether voluntary or involuntary, or undergone the
appointment of a receiver, trustee, or assignee for the benefit of creditors, and if so, an
explanation providing relevant details and current status;
1.9 A Statement of whether there are any pending Securities Exchange Commission
investigations involving the Offeror, and if such are pending or in progress, an explanation
providing relevant details and an attached opinion of counsel as to whether the pending
investigation(s) may impair the Offeror's performance in a Contract under this RFP;
1.10 A Statement documenting all open or pending litigation initiated by Offeror or where Offeror is
PART 3 of the Solicitation Documents
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
a defendant or party in any litigation that may have a material impact on Offeror's ability to
deliver the contracted services;
1.11 A Statement documenting all open or pending litigation initiated by Offeror or where Offeror is
a defendant or party in any litigation with a Public sector client;
1.12 Full disclosure of any Public Sector contracts terminated for cause or convenience in the past
five (5) years; and,
1.13 Full disclosure of any criminal or civil offense.
1.14 Offeror shall provide evidence of any Arizona or federally -required business license to provide
these services.
Offeror Response:
Click here to enter your response.
Question 2: Company Experience
A. Based on revenue, what is the percentage breakdown of the market(s) are your current clients
are in?
B. What experience do you have serving government clients within the United States of America?
C. What is the size of your current largest public sector clients? What are your potential limitations
as far as servicing public sector clients throughout the country? Are there geographic limitations
that your company would not be able to support?
D. Provide a description of two (2) recent projects in the areas of Software Advisement and/or Basic
License Management, as described in the Scope of Work, that were implemented by your
company, including client contact information (contact person, phone number, email). Narrative
descriptions should highlight the similarities between the stated experience and this Solicitation.
At a minimum, include the following: time -period that the experiences occurred, your company's
actions and results, and your company's status as the prime or subcontractor.
E. How long have you provided goods/services to your longest tenured client?
F. Why did your last three former clients cancel their contracts?
G. How does your company stay ahead in areas such as industry knowledge and technological
knowledge?
Offeror Response:
Click here to enter your response.
Question 3: Financial/Accounting Information
A. Offeror must provide evidence of financial stability and capability to fund all costs associated with
providing the services throughout the term of the Contract. The latest two (2) years audited
annual financial statements including Total Revenue, Net Income, and Total Assets must be
submitted with the Offeror's proposal. If audited financial data is unavailable, explain in full the
reason, and provide the latest non -audited financial information to include Balance Sheet,
Income Statement, as well as Statements of Cash flows and Change in Financial Position.
Include information to attest to the accuracy of the information provided.
B. Offeror must provide audited financial statements, of the last two years, to the State that
demonstrate that an Offeror meets at a minimum Dun and Bradstreet (D&B) credit rating of 3A2
or better, or a recognized equivalent rating. Please provide the respondent's D&B Number and
the composite credit rating. The State reserves the right to verify this information. If a branch or
PART 3 of the Solicitation Documents SECTION 3-B: Offer Forms
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., Suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
wholly owned subsidiary is bidding on this RFP, please provide the D&B Number and score for
the parent company that will be financially responsible for performance of the agreement.
Question 4: Proposed Project Members and Organization
Utilize Attachment 3-13 to identify Key Personnel and and Organizational Chart that demonstrates how
the Offeror intends to serve different markets/regions throughout the country under a resultant SVAR
Contract. At a minimum, Offeror should identify their Key Personnel for three different geographic
regions (ex: different states or regions of the United States).
In addition, also state the Key Personnel's related experience with large local, state or federal
government agencies.
Offeror Response:
Click here to enter your response.
Question 5: Subcontractors and Partners
Utilize Attachment 3-C to identify Proposed Subcontractors and Partners to be utilized to perform
services within a resultant contract.
Question 6: Submit copies of all applicable professional or industry certifications, licenses, memberships
in relevant trade organizations or professional associations that support Offeror's ability to provide the
related goods/services being proposed. Provide the level of partnerships your company has for all major
software publishers (ex: gold, platinum partner etc.)
Offeror Response:
Click here to enter your response.
Question 7: If Offeror is awarded a Master Agreement, they will then be required to individually negotiate
Participating Addendums with all states that wish to participate with this contract. Explain how your
company will be able to negotiate potentially 20-30 Participating Addendums concurrently to allow all states
to expeditiously enter into contracts with your company.
PART 3 of the Solicitation Documents
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SECTION 3-13: Offer Forms
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., Suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
EXPERIENCE REFERENCES:
The State intends to conduct reference checks for account referenced provided by Offerors. It may, at its sole discretion
contact additional clients not presented as references.
Offerors shall provide at least three (3) client references for assignments that best demonstrate Offeror providng value-
added services to software sales. At least one (1) of the references must be state government related.
All assignments shall be for assignments received and completed within the last five (5) years.
Client Company/Address
Contact
Begin Date
End Date
X
X
X
X
Phone Number
Email Address
x
x
Event Scope and deliverables, include number of resources engaged in project, timeline of project (major
milestones)
x
List job positions provided and technologies utilized to supplement services.
x
Client Company/Address
Contact
Begin Date
End Date
IXM
x
x
x
Phone Number
Email Address
x
x
Event Scope and deliverables, include number of resources engaged in project, timeline of project (major
milestones)
x
List job positions provided and technologies utilized to supplement services.
x
PART 3 of the Solicitation Documents
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SECTION 3-B: Offer Forms
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., Suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
Client Company/Address
Contact
Begin Date
End Date
7Phon.
x
x
x
Number
Email Address
x
x
Event Scope and deliverables, include number of resources engaged in project, timeline of project(major
milestones)
x
List job positions provided and technologies utilized to supplement services.
x
Client Company/Address
Contact
Begin Date
End Date
x
x
x
x
Phone Number
Email Address
x
x
Project Scope and deliverables, include number of resources engaged in project, timeline of project(major
milestones)
x
List job positions provided and technologies utilized to supplement services.
x
❑ 2) MICROSOFT CATEGORY (check if proposing in this category)
All answers in this section should be customized specifically to Microsoft
Question 1: Company Profile
PART 3 of the Solicitation Documents
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
The Offeror must include a narrative description of its organization. The narrative must include the
following:
1.1 Brief overview of business operations, with an emphasis on experience in regards to the
scope of work in Category 2 — Microsoft SVAR. Provide an overview of the Offeror's
business history, description of current services provided, and a list of current customer base
1.2 Date established;
1.3 Ownership (public, partnership, subsidiary, etc.);
1.4 Location in which the Offeror is incorporated;
1.5 Address of "Main Office" (e.g. Corporate Headquarters and any satellite offices responsible
for performance of proposed tasks;
1.6 Offeror's organizational chart relevant to the Contract, specifically identifying the key point of
contact for all questions related to the submitted offer;
1.7 Full disclosure of any potential conflict of interest between the Offeror and any State
employee who functions or has responsibilities in the review or approval of the undertaking or
carrying out of the Contract;
1.8 A Statement of whether, in the last five (5) years, the Offeror has filed (or had filed against it)
any bankruptcy or insolvency proceeding, whether voluntary or involuntary, or undergone the
appointment of a receiver, trustee, or assignee for the benefit of creditors, and if so, an
explanation providing relevant details and current status;
1.9 A Statement of whether there are any pending Securities Exchange Commission
investigations involving the Offeror, and if such are pending or in progress, an explanation
providing relevant details and an attached opinion of counsel as to whether the pending
investigation(s) may impair the Offeror's performance in a Contract under this RFP;
1.10 A Statement documenting all open or pending litigation initiated by Offeror or where Offeror is
a defendant or party in any litigation that may have a material impact on Offeror's ability to
deliver the contracted services;
1.11 A Statement documenting all open or pending litigation initiated by Offeror or where Offeror is
a defendant or party in any litigation with a Public sector client;
1.12 Full disclosure of any Public Sector contracts terminated for cause or convenience in the past
five (5) years; and,
1.13 Full disclosure of any criminal or civil offense.
1.14 Offeror shall provide evidence of any Arizona or federally -required business license to provide
these services.
Offeror Response:
Click here to enter your response.
Question 2: Company Experience
A. Based on revenue, what is the percentage breakdown of the market(s) are your current clients
are in?
B. What experience do you have serving government clients within the United States of America?
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., Suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
C. What is the size of your current largest public sector clients? What are your potential limitations
as far as servicing public sector clients throughout the country? Are there geographic limitations
that your company would not be able to support?
D. Provide a description of two (2) recent projects in the areas of Software Advisement and/or Basic
License Management, as described in the Scope of Work, that were implemented by your
company, including client contact information (contact person, phone number, email). Narrative
descriptions should highlight the similarities between the stated experience and this Solicitation.
At a minimum, include the following: time -period that the experiences occurred, your company's
actions and results, and your company's status as the prime or subcontractor.
E. How long have you provided goods/services to your longest tenured client?
F. Why did your last three former clients cancel their contracts?
G. How does your company stay ahead in areas such as industry knowledge and technological
knowledge?
Offeror Response:
Click here to enter your response.
Question 3: Financial/Accounting Information
A. Offeror must provide evidence of financial stability and capability to fund all costs associated with
providing the services throughout the term of the Contract. The latest two (2) years audited
annual financial statements including Total Revenue, Net Income, and Total Assets must be
submitted with the Offeror's proposal. If audited financial data is unavailable, explain in full the
reason, and provide the latest non -audited financial information to include Balance Sheet,
Income Statement, as well as Statements of Cash flows and Change in Financial Position.
Include information to attest to the accuracy of the information provided.
B. Offeror must provide audited financial statements, of the last two years, to the Purchasing Entity
that demonstrate that an Offeror meets at a minimum Dun and Bradstreet (D&B) credit rating of
3A2 or better, or a recognized equivalent rating. Please provide the respondent's D&B Number
and the composite credit rating. The Purchasing Entity reserves the right to verify this
information. If a branch or wholly owned subsidiary is bidding on this RFP, please provide the
D&B Number and score for the parent company that will be financially responsible for
performance of the agreement.
Offeror Response:
Click here to enter your response.
Question 4: Proposed Project Members and Organization
Utilize Attachment 3-B to identify Key Personnel and and Organizational Chart that demonstrates how
the Offeror intends to serve different markets/regions throughout the country under a resultant SVAR
Contract. At a minimum, Offeror should identify their Key Personnel for three different geographic
regions (ex: different states or regions of the United States).
In addition, also state the Key Personnel's related experience with large local, state or federal
government agencies.
Offeror Response:
Click here to enter your response.
PART 3 of the Solicitation Documents
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SECTION 3-B: Offer Forms
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
Question 5: Subcontractors and Partners
Utilize Attachment 3-C to identify Proposed Subcontractors and Partners to be utilized to perform
services within a resultant contract.
Offeror Response:
Click here to enter your response.
Question 6: Submit copies of all applicable professional or industry certifications, licenses, memberships
in relevant trade organizations or professional associations that support Offeror's ability to provide the
related goods/services being proposed in Category 2 — Microsoft SVAR. Provide the level of partnerships
your company has for Microsfot (ex: gold, platinum partner etc.)
Offeror Response:
Click here to enter your response.
Question 7: If Offeror is awarded a Master Agreement, they will then be required to individually negotiate
Participating Addendums with all states that wish to participate with this contract. Explain how your
company will be able to negotiate potentially 20-30 Participating Addendums concurrently to allow all states
to expeditiously enter into contracts with your company.
PART 3 of the Solicitation Documents
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SECTION 3-13: Offer Forms
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., Suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
EXPERIENCE REFERENCES:
The State intends to conduct reference checks for account referenced provided by Offerors. It may, at its sole discretion
contact additional clients not presented as references.
Offerors shall provide at least three (3) client references for assignments that best demonstrate Offeror providng value-
added services to software sales. At least one (1) of the references must be state government related.
All assignments shall be for assignments received and completed within the last five (5) years.
Client Company/Address
Contact
Begin Date
End Date
x
x
x
x
Phone Number
Email Address
x
x
Event Scope and deliverables, include number of resources engaged in project, timeline of project (major
milestones)
x
List job positions provided and technologies utilized to supplement services.
x
Client Company/Address
Contact
Begin Date
End Date
x
x
x
x
Phone Number
Email Address
x
x
Event Scope and deliverables, include number of resources engaged in project, timeline of project (major
milestones)
x
List job positions provided and technologies utilized to supplement services.
x
PART 3 of the Solicitation Documents
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., Suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
Client Company/Address
Contact
Begin Date
End Date
7Phon.
x
x
x
Number
Email Address
x
x
Event Scope and deliverables, include number of resources engaged in project, timeline of project(major
milestones)
x
List job positions provided and technologies utilized to supplement services.
x
Client Company/Address
Contact
Begin Date
End Date
x
x
x
x
Phone Number
Email Address
x
x
Project Scope and deliverables, include number of resources engaged in project, timeline of project(major
milestones)
x
List job positions provided and technologies utilized to supplement services.
x
❑ 3) ORACLE CATEGORY (check if proposing in this category)
All answers in this section should be customized specifically to Oracle
Question 1: Company Profile
The Offeror must include a narrative description of its organization. The narrative must include the
following:
1.1 Brief overview of business operations, with an emphasis on experience in regards to the
scope of work, specifically regarding Category 3 — Oracle SVAR. Provide an overview of the
PART 3 of the Solicitation Documents
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
Offeror's business history, description of current services provided, and a list of current
customer base
1.2 Date established;
1.3 Ownership (public, partnership, subsidiary, etc.);
1.4 Location in which the Offeror is incorporated;
1.5 Address of "Main Office" (e.g. Corporate Headquarters and any satellite offices responsible
for performance of proposed tasks;
1.6 Offeror's organizational chart relevant to the Contract, specifically identifying the key point of
contact for all questions related to the submitted offer;
1.7 Full disclosure of any potential conflict of interest between the Offeror and any Purchasing
Entity employee who functions or has responsibilities in the review or approval of the
undertaking or carrying out of the Contract;
1.8 A Statement of whether, in the last five (5) years, the Offeror has filed (or had filed against it)
any bankruptcy or insolvency proceeding, whether voluntary or involuntary, or undergone the
appointment of a receiver, trustee, or assignee for the benefit of creditors, and if so, an
explanation providing relevant details and current status;
1.9 A Statement of whether there are any pending Securities Exchange Commission
investigations involving the Offeror, and if such are pending or in progress, an explanation
providing relevant details and an attached opinion of counsel as to whether the pending
investigation(s) may impair the Offeror's performance in a Contract under this RFP;
1.10 A Statement documenting all open or pending litigation initiated by Offeror or where Offeror is
a defendant or party in any litigation that may have a material impact on Offeror's ability to
deliver the contracted services;
1.11 A Statement documenting all open or pending litigation initiated by Offeror or where Offeror is
a defendant or party in any litigation with a Public sector client;
1.12 Full disclosure of any Public Sector contracts terminated for cause or convenience in the past
five (5) years; and,
1.13 Full disclosure of any criminal or civil offense.
1.14 Offeror shall provide evidence of any Arizona or federally -required business license to provide
these services.
Offeror Response:
Click here to enter your response.
Question 2: Company Experience
A. Based on revenue, what is the percentage breakdown of the market(s) are your current clients
are in?
B. What experience do you have serving government clients within the United States of America,
preferably related to Oracle products?
C. What is the size of your current largest public sector clients? What are your potential
limitations as far as servicing public sector clients throughout the country? Are there
geographic limitations that your company would not be able to support?
PART 3 of the Solicitation Documents
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., Suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
D. Preferably related to Oracle products, Provide a description of two (2) recent projects in
the areas of Software Advisement and/or Basic License Management, as described in
the Scope of Work, that were implemented by your company, including client contact
information (contact person, phone number, email). Narrative descriptions should
highlight the similarities between the stated experience and this Solicitation. At a
minimum, include the following: time -period that the experiences occurred, your
company's actions and results, and your company's status as the prime or
subcontractor.
E. How long have you provided goods/services to your longest tenured client?
F. Why did your last three former clients cancel their contracts?
G. How does your company stay ahead in areas such as industry knowledge and technological
knowledge?
Offeror Response:
Click here to enter your response.
Question 3: Financial/Accounting Information
A. Offeror must provide evidence of financial stability and capability to fund all costs associated with
providing the services throughout the term of the Contract. The latest two (2) years audited
annual financial statements including Total Revenue, Net Income, and Total Assets must be
submitted with the Offeror's proposal. If audited financial data is unavailable, explain in full the
reason, and provide the latest non -audited financial information to include Balance Sheet,
Income Statement, as well as Statements of Cash flows and Change in Financial Position.
Include information to attest to the accuracy of the information provided.
B. Offeror must provide audited financial statements, of the last two years, to the Purchasing Entity
that demonstrate that an Offeror meets at a minimum Dun and Bradstreet (D&B) credit rating of
3A2 or better, or a recognized equivalent rating. Please provide the respondent's D&B Number
and the composite credit rating. The Purchasing Entity reserves the right to verify this
information. If a branch or wholly owned subsidiary is bidding on this RFP, please provide the
D&B Number and score for the parent company that will be financially responsible for
performance of the agreement.
Offeror Response:
Click here to enter your response.
Question 4: Proposed Project Members and Organization
Utilize Attachment 3-13 to identify Key Personnel and and Organizational Chart that demonstrates how
the Offeror intends to serve different markets/regions throughout the country under a resultant SVAR
Contract. At a minimum, Offeror should identify their Key Personnel for three different geographic
regions (ex: different states or regions of the United States).
In addition, also state the Key Personnel's related experience with large local, state or federal
government agencies.
Offeror Response:
Click here to enter your response.
Question 5: Subcontractors and Partners
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., Suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
Utilize Attachment 3-C to identify Proposed Subcontractors and Partners to be utilized to perform
services within a resultant contract.
Offeror Response:
Click here to enter your response.
Question 6: Submit copies of all applicable professional or industry certifications, licenses, memberships
in relevant trade organizations or professional associations that support Offeror's ability to provide the
related goods/services being proposed in Category 3 — Oracle SVAR. Provide the level of partnerships your
company has for Oracle (ex: gold, platinum partner etc.)
Offeror Response:
Click here to enter your response.
Question 7: If Offeror is awarded a Master Agreement, they will then be required to individually negotiate
Participating Addendums with all states that wish to participate with this contract. Explain how your
company will be able to negotiate potentially 20-30 Participating Addendums concurrently to allow all states
to expeditiously enter into contracts with your company.
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., Suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
EXPERIENCE REFERENCES:
The State intends to conduct reference checks for account referenced provided by Offerors. It may, at its sole discretion
contact additional clients not presented as references.
Offerors shall provide at least three (3) client references for assignments that best demonstrate Offeror providng value-
added services to software sales. At least one (1) of the references must be state government related.
All assignments shall be for assignments received and completed within the last five (5) years.
Client Company/Address
Contact
Begin Date
End Date
x
x
x
x
Phone Number
Email Address
x
x
Event Scope and deliverables, include number of resources engaged in project, timeline of project (major
milestones)
x
List job positions provided and technologies utilized to supplement services.
x
Client Company/Address
Contact
Begin Date
End Date
x
x
x
x
Phone Number
Email Address
x
x
Event Scope and deliverables, include number of resources engaged in project, timeline of project (major
milestones)
x
List job positions provided and technologies utilized to supplement services.
x
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., Suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
Client Company/Address
Contact
Begin Date
End Date
7Phon.
x
x
x
Number
Email Address
x
x
Event Scope and deliverables, include number of resources engaged in project, timeline of project(major
milestones)
x
List job positions provided and technologies utilized to supplement services.
x
Client Company/Address
Contact
Begin Date
End Date
x
x
x
x
Phone Number
Email Address
x
x
Project Scope and deliverables, include number of resources engaged in project, timeline of project(major
milestones)
x
List job positions provided and technologies utilized to supplement services.
x
End of Attachment 2-A
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., Suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
Attachment 2-B
Reserved
End of Attachment 2-B
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., Suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
Attachment 3-A
Method Proposal (Method of Approach)
This Attachment is divided into three sections: 1) General Category, 2) Microsoft Category, and 3) Oracle
Category. Offerors need only answer questions in the category or categories for which they desire to be
considered for a contract award (indicate by checking the box next to the applicable category or
categories). In each applicable category, the Offeror shall provide a narrative response to each question
that demonstrates their understanding of the Scope of Work requirements and describes your company's
overall method of approach for providing the service stated in this solicitation. If there is a question that is
not applicable to the services required by the Scope of Work, you may mark it N/A.
❑ 1) GENERAL CATEGORY (check if proposing in this category)
Question 1: Offeror shall describe its overall approach to providing solicited services.
Include how Offeror plans to meet or exceed requirements of the Scope of
Work and Terms and Conditions.
Question 2: Per Section 2.5.1 of the Scope of Work, the SVAR shall Develop and Maintain
a Portal. Describe the portal to be established for a state. Address that portal's
functionalities or special features. You may supplement this response with
illustrative screen prints (no more than 10) from one of your company's
existing portals. Taking into account the requirements of Section 2.5.1, address
at a minimum:
• Home page appearance and information;
• Reseller primary contacts by State;
• Links to Master Agreement and Participating Addendum;
• Display of Reseller's % mark(down/up) for all Categories;
• How website is monitored, kept current and accurate;
Question 3: Describe your Company's method for tracking software licenses and ensuring
that Purchasing Entities receive timely notifications of renewals or are advised
of volume agreement opportunities or vulnerabilities, etc. Address at a
minimum:
• The information tracked on behalf of Purchasing Entity
• How reminders of significant dates or volume plateaus are triggered. Include how your
Company, as a partner with the Purchasing Entity, communicates to ensure no
deadlines are missed or opportunities unexplored
Question 4: Describe your Company's method of ensuring a Purchasing Entity receives
documentation of Proof of License that can be provided to requestors (e.g.
auditors, in response to FOIA requests, etc.) Describe process for providing
Proof of License to a Purchasing Entity. Provide a sample Proof of License.
Explain method of retaining back-up copies of Proof of License. Explain the
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
process for a Purchasing Entity to obtain a duplicate copy. Describe how your
Company partners with a Purchasing Entity to demonstrate accuracy of
licensing information to a publisher (aka a "True Up").
Question 5: Describe your reporting capabilities which can be provided to a Purchasing
Entity, both self -generated and custom reports. Provide sample reports.
Question 6: Describe how your Company works with a Purchasing Entity and Publisher to
maximize the Purchasing Entity's value in obtaining products and services
under this contract. Description is to address, but is not limited to, the
following:
• Working with a Purchasing Entity and a Publisher to assist the Purchasing Entity in
managing their volume or enterprise license agreements.
• Working with a Purchasing Entity and Publisher to maximize the leverage created by the
total sales volume from a Purchasing Entity and its cooperative partners to ensure best
value to all Purchasing Entities.
• Working with a publisher to maximize the leverage created by the SVAR's total sales
volume overall resulting from this contract.
• Working with Purchasing Entity and publisher to obtain the best quote on a high
volume purchase.
• If, and how, your Company uses historical purchase information to provide targeted
assistance to Purchasing Entity.
• How maintenance support is to be made available.
• Describe how training regarding the installation of products and use of products will be
made available and how to obtain best value from it.
Question 7: A significant aspect of this service is to be Value -Added Services. Describe how
your company handles the complexities related to enterprise license
agreements. Include how you assist customers (especially first time customers)
through this process to ensure they are comfortable moving forward, and are
knowledgeable about the agreements once they are complete?
Question 8: Describe how your company handles transitioning a group of customers from
an account
manager with whom they have built a relationship to an account manager who is new to
them? How do you ensure that all of the customers' needs are met? How do
you ensure the new account manager is given the resources necessary to be
successful in the new role?
Question 9: Explain what Value -Added services your Company will make available under
a resultant
contract. What unique services can your Company provide at no extra cost?
Question 10: Explain how your Company will:
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., Suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
• Retain publisher certification levels and improve on them.
• Work to reduce costs to obtain publisher products?
Question II: How does your Company respond to customer complaints and service issues
and what is your Company's escalation process?
Question 12: Problem Resolution Scenario I
Scenario 1: Describe at least one recent situation where your Company made a
major error that resulted in dire consequences for a customer. Detail
the error and what changes your Company has made to avoid repeating
the error in the future. In this situation, the problem was not solved in
time to take care of the customer, and the customer was lost.
Question 13: Problem Resolution Scenario 2
Describe at least one recent situation where your Company made a major error that
had potential dire consequences for a customer. Detail the error and what was done
to correct
the situation. To what lengths did your Company go to take care of the customer?
What changes
(if any) did your Company make to avoid repeating the error in the future? In this
situation, the
problem is solved in time to take care of the customer, and the customer is likely not
lost.
SECURITY QUESTIONS:
Question 14: Offeror must describe the procedure and controls to meet the requirements in
Section 2-C; Special Terms and Conditions, Sec. 13.2 it takes in the performance of
its S-VAR obligations including service it provides or is provided by service
partners to protect the data, data confidentiality, and user account information.
Include a description of the method by which it will hold, protect, and dispose of
data and user account information during the performance of and following the
completion of any contract services.
Question 15: Offeror must describe security procedures (background checks, foot printing
logging, etc.) which are in place regarding Offeror's employees and service partners
who have access to sensitive data.
Question 16: Offeror must describe policies and procedures it will follow regarding notification
to both the Purchasing Entity and mitigation if a data breach occurs in the
performance of its S-VAR obligations including service it provides or is provided
by service partners.
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
Question 17: Offeror must describe its method to assist the Purchasing Entity to obtain SaaS
Information and Security information required in Section 2-C Special Terms and
Conditions, Section 15.0 from the Publisher including, but not limited to:
• how it will assist a Purchasing Entity obtain this information from the
Publisher
• how it will assist a Purchasing Entity to gain answers to questions, and
• how it will assist the Purchasing entity obtain third party attestations, reports,
security credentials, standards and certifications related to the
Publisher's software.
Question 18: Offeror must describe how it will address Section 2-C Terms and Conditions, Sec.
14.8.2 that requires COTS Software to be free of viruses, backdoors, worms,
spyware, malware and other malicious code that could hamper performance, collect
unlawfully any personally identifiable information, or prevent products from
performing and mitigate any software the Purchasing Entity has reason to believe
has harmful code.
Question 19: (Note: For Category 1 only) Offeror must describe how it will meet the
requirements of Section 2-C Special Terms and Conditions, Sec 16.0 (a) to provide
guide documents identifying the difference between the Publishers' SaaS Terms
and Conditions and the Terms and Conditions in Sec 16.1- 16.18 if requested by the
Purchasing Entity.
SERVICE LEVEL AGREEMENTS
Qustion 20: Offeror, as part of its proposal, must provide a sample of Service Level
Agreements (SLA) they can offer to enable Participating Entity to measure contract
performance. Offeror should also include proposed consequences/remedies for failure to
achieve SLAB.
Question 21: In a recent survey of other states, certain model Terms and Conditions have been identified as
the most important to be included in agreements (ex: End User License Agreements) with software
publishers. Describe your ability and willingness to require Publishers to agree to specific terms and
conditions as a prerequisite to selling off this resultant contract. Describe any successes you have had
previously in requiring Publishers to accept minimum terms prescribed by an RFP or similar process.
Describe your willingness to identify Publishers who aren't willing to accept Model Terms and provide the
Purchasing Entity with this information before a purchase is made. Some specific examples identified as
important to states include:
• Governing Law; Jurisdiction and Venue
• Protection of Purchasing Entity's Confidential Information
• Indemnification for Intellectual Property Infringement
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., Suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
• Unacceptability of Click through links — All terms and conditions must be identified in
the agreement. Purchasing Entities cannot agree to linked terms that are posted
elsewhere and may change.
• Unacceptability of auto -renewal of licenses
❑ 2) MICROSOFT CATEGORY (check if proposing in this category)
**All answers in this section should be customized specifically to Microsoft
Question 1: Offeror shall describe its overall approach to providing solicited services.
Include how Offeror plans to meet or exceed requirements of the Scope of
Work and Terms and Conditions.
Question 2: Per Section 2.5.1 of the Scope of Work, the SVAR shall Develop and Maintain
a Portal. Describe the portal to be established for a state. Address that portal's
functionalities or special features. You may supplement this response with
illustrative screen prints (no more than 10) from one of your company's
existing portals. Taking into account the requirements of Section 2.5.1, address
at a minimum:
• Home page appearance and information;
• Reseller primary contacts by State;
• Links to Master Agreement and Participating Addendum;
• Display of Reseller's % mark(down/up) for all Categories;
• How website is monitored, kept current and accurate;
Question 3: Describe your Company's method for tracking software licenses and ensuring
that Purchasing Entities receive timely notifications of renewals or are advised
of volume agreement opportunities or vulnerabilities, etc. Address at a
minimum:
• The information tracked on behalf of Purchasing Entity
• How reminders of significant dates or volume plateaus are triggered. Include how your
Company, as a partner with the Purchasing Entity, communicates to ensure no
deadlines are missed or opportunities unexplored
Question 4: Describe your Company's method of ensuring a Purchasing Entity receives
documentation of Proof of License that can be provided to requestors (e.g.
auditors, in response to FOIA requests, etc.) Describe process for providing
Proof of License to a Purchasing Entity. Provide a sample Proof of License.
Explain method of retaining back-up copies of Proof of License. Explain the
process for a Purchasing Entity to obtain a duplicate copy. Describe how your
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., Suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
Company partners with a Purchasing Entity to demonstrate accuracy of
licensing information to a publisher (aka a "True Up").
Question 5: Describe your reporting capabilities which can be provided to a Purchasing
Entity, both self -generated and custom reports. Provide sample reports.
Question 6: Describe how your Company works with a Purchasing Entity and Publisher to
maximize the Purchasing Entity's value in obtaining products and services
under this contract. Description is to address, but is not limited to, the
following:
• Working with a Purchasing Entity and a Publisher to assist the Purchasing Entity in
managing their volume or enterprise license agreements.
• Working with a Purchasing Entity and Publisher to maximize the leverage created by the
total sales volume from a Purchasing Entity and its cooperative partners to ensure best
value to all Purchasing Entities.
• Working with a publisher to maximize the leverage created by the SVAR's total sales
volume overall resulting from this contract.
• Working with Purchasing Entity and publisher to obtain the best quote on a high
volume purchase.
• If, and how, your Company uses historical purchase information to provide targeted
assistance to Purchasing Entity.
• How maintenance support is to be made available.
• Describe how training regarding the installation of products and use of products will be
made available and how to obtain best value from it.
Question 7: A significant aspect of this service is to be Value -Added Services. Describe how
your company handles the complexities related to enterprise license
agreements. Include how you assist customers (especially first time customers)
through this process to ensure they are comfortable moving forward, and are
knowledgeable about the agreements once they are complete?
Question 8: Describe how your company handles transitioning a group of customers from
an account
manager with whom they have built a relationship to an account manager who is new to
them? How do you ensure that all of the customers' needs are met? How do
you ensure the new account manager is given the resources necessary to be
successful in the new role?
Question 9: Explain what Value -Added services your Company will make available under
a resultant
contract. What unique services can your Company provide at no extra cost?
Question 10: Explain how your Company will:
• Retain publisher certification levels and improve on them.
• Work to reduce costs to obtain publisher products?
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., Suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
Question 11: How does your Company respond to customer complaints and service issues
and what is your Company's escalation process?
Question 12: Problem Resolution Scenario 1
Scenario 1: Describe at least one recent situation where your Company made a
major error that
resulted in dire consequences for a customer. Detail the error and what changes
your Company
has made to avoid repeating the error in the future. In this situation, the problem
was not solved in
time to take care of the customer, and the customer was lost.
Question 13: Problem Resolution Scenario 2
Describe at least one recent situation where your Company made a major error that
had potential dire consequences for a customer. Detail the error and what was done
to correct
the situation. To what lengths did your Company go to take care of the customer?
What changes
(if any) did your Company make to avoid repeating the error in the future? In this
situation, the
problem is solved in time to take care of the customer, and the customer is likely not
lost.
SECURITY QUESTIONS:
Question 14: Offeror must describe the procedure and controls to meet the requirements in
Section 2-C; Special Terms and Conditions, Sec. 13.2 it takes in the performance of
its S-VAR obligations including service it provides or is provided by service
partners to protect the data, data confidentiality, and user account information.
Include a description of the method by which it will hold, protect, and dispose of
data and user account information during the performance of and following the
completion of any contract services.
Question 15: Offeror must describe security procedures (background checks, foot printing
logging, etc.) which are in place regarding Offeror's employees and service partners
who have access to sensitive data.
Question 16: Offeror must describe policies and procedures it will follow regarding notification
to both the Purchasing Entity and mitigation if a data breach occurs in the
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
performance of its S-VAR obligations including service it provides or is provided
by service partners.
Question 17: Offeror must describe its method to assist the Purchasing Entity to obtain SaaS
Information and Security information required in Section 2-C Special Terms and
Conditions, Section 15.0 from the Publisher including, but not limited to:
• how it will assist a Purchasing Entity obtain this information from the
Publisher
• how it will assist a Purchasing Entity to gain answers to questions, and
• how it will assist the Purchasing entity obtain third party attestations, reports,
security credentials, standards and certifications related to the
Publisher's software.
Question 18: Offeror must describe how it will address Section 2-C Terms and Conditions, Sec.
14.8.2 that requires COTS Software to be free of viruses, backdoors, worms,
spyware, malware and other malicious code that could hamper performance, collect
unlawfully any personally identifiable information, or prevent products from
performing and mitigate any software the Purchasing Entity has reason to believe
has harmful code.
SERVICE LEVEL AGREEMENTS
Question 19: Offeror, as part of its proposal, must provide a sample of Service Level
Agreements (SLA) they can offer to enable Participating Entity to measure contract
performance. Offeror should also include proposed consequences/remedies for failure to
achieve SLAB.
Question 20: In a recent survey of other states, certain model Terms and Conditions have been identified as
the most important to be included in agreements (ex: End User License Agreements) with software
publishers. Describe your ability and willingness to require Publishers to agree to specific terms and
conditions as a prerequisite to selling off this resultant contract. Describe any successes you have had
previously in requiring Publishers to accept minimum terms prescribed by an RFP or similar process.
Describe your willingness to identify Publishers who aren't willing to accept Model Terms and provide the
Purchasing Entity with this information before a purchase is made. Some specific examples identified as
important to states include:
• Governing Law; Jurisdiction and Venue
• Protection of Purchasing Entity's Confidential Information
• Indemnification for Intellectual Property Infringement
• Unacceptability of Click through links — All terms and conditions must be identified in
the agreement. Purchasing Entities cannot agree to linked terms that are posted
elsewhere and may change.
• Unacceptability of auto -renewal of licenses
❑ 3) ORACLE CATEGORY (check if proposing in this category)
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., Suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
**All answers in this section should be customized specifically to Oracle
Question 1: Offeror shall describe its overall approach to providing solicited services.
Include how Offeror plans to meet or exceed requirements of the Scope of
Work and Terms and Conditions.
Question 2: Per Section 2.5.1 of the Scope of Work, the SVAR shall Develop and Maintain
a Portal. Describe the portal to be established for a state. Address that portal's
functionalities or special features. You may supplement this response with
illustrative screen prints (no more than 10) from one of your company's
existing portals. Taking into account the requirements of Section 2.5.1, address
at a minimum:
• Home page appearance and information;
• Reseller primary contacts by State;
• Links to Master Agreement and Participating Addendum;
• Display of Reseller's % mark(down/up) for all Categories;
• How website is monitored, kept current and accurate;
Question 3: Describe your Company's method for tracking software licenses and ensuring
that Purchasing Entities receive timely notifications of renewals or are advised
of volume agreement opportunities or vulnerabilities, etc. Address at a
minimum:
• The information tracked on behalf of Purchasing Entity
• How reminders of significant dates or volume plateaus are triggered. Include how your
Company, as a partner with the Purchasing Entity, communicates to ensure no
deadlines are missed or opportunities unexplored
Question 4: Describe your Company's method of ensuring a Purchasing Entity receives
documentation of Proof of License that can be provided to requestors (e.g.
auditors, in response to FOIA requests, etc.) Describe process for providing
Proof of License to a Purchasing Entity. Provide a sample Proof of License.
Explain method of retaining back-up copies of Proof of License. Explain the
process for a Purchasing Entity to obtain a duplicate copy. Describe how your
Company partners with a Purchasing Entity to demonstrate accuracy of
licensing information to a publisher (aka a "True Up").
Question 5: Describe your reporting capabilities which can be provided to a Purchasing
Entity, both self -generated and custom reports. Provide sample reports.
Question 6: Describe how your Company works with a Purchasing Entity and Publisher to
maximize the Purchasing Entity's value in obtaining products and services
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
under this contract. Description is to address, but is not limited to, the
following:
• Working with a Purchasing Entity and a Publisher to assist the Purchasing Entity in
managing their volume or enterprise license agreements.
• Working with a Purchasing Entity and Publisher to maximize the leverage created by the
total sales volume from a Purchasing Entity and its cooperative partners to ensure best
value to all Purchasing Entities.
• Working with a publisher to maximize the leverage created by the SVAR's total sales
volume overall resulting from this contract.
• Working with Purchasing Entity and publisher to obtain the best quote on a high
volume purchase.
• If, and how, your Company uses historical purchase information to provide targeted
assistance to Purchasing Entity.
• How maintenance support is to be made available.
• Describe how training regarding the installation of products and use of products will be
made available and how to obtain best value from it.
Question 7: A significant aspect of this service is to be Value -Added Services. Describe how
your company handles the complexities related to enterprise license
agreements. Include how you assist customers (especially first time customers)
through this process to ensure they are comfortable moving forward, and are
knowledgeable about the agreements once they are complete?
Question 8: Describe how your company handles transitioning a group of customers from
an account
manager with whom they have built a relationship to an account manager who is new to
them? How do you ensure that all of the customers' needs are met? How do
you ensure the new account manager is given the resources necessary to be
successful in the new role?
Question 9: Explain what Value -Added services your Company will make available under
a resultant
contract. What unique services can your Company provide at no extra cost?
Question 10: Explain how your Company will:
• Retain publisher certification levels and improve on them.
• Work to reduce costs to obtain publisher products?
Question II: How does your Company respond to customer complaints and service issues
and what is your Company's escalation process?
Question 12: Problem Resolution Scenario 1
Scenario 1: Describe at least one recent situation where your Company made a
major error that
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15thAve., Suite402
Software Value -Added Reseller
Phoenix, AZ85007
resulted in dire consequences for a customer. Detail the error and what changes
your Company
has made to avoid repeating the error in the future. In this situation, the problem
was not solved in
time to take care of the customer, and the customer was lost.
Question 13: Problem Resolution Scenario 2
Describe at least one recent situation where your Company made a major error that
had potential dire consequences for a customer. Detail the error and what was done
to correct
the situation. To what lengths did your Company go to take care of the customer?
What changes
(if any) did your Company make to avoid repeating the error in the future? In this
situation, the
problem is solved in time to take care of the customer, and the customer is likely not
lost.
SECURITY QUESTIONS:
Question 14: Offeror must describe the procedure and controls to meet the requirements in
Section 2-C; Special Terms and Conditions, Sec. 13.2 it takes in the performance of
its S-VAR obligations including service it provides or is provided by service
partners to protect the data, data confidentiality, and user account information.
Include a description of the method by which it will hold, protect, and dispose of
data and user account information during the performance of and following the
completion of any contract services.
Question 15: Offeror must describe security procedures (background checks, foot printing
logging, etc.) which are in place regarding Offeror's employees and service partners
who have access to sensitive data.
Question 16: Offeror must describe policies and procedures it will follow regarding notification
to both the Purchasing Entity and mitigation if a data breach occurs in the
performance of its S-VAR obligations including service it provides or is provided
by service partners.
Question 17: Offeror must describe its method to assist the Purchasing Entity to obtain SaaS
Information and Security information required in Section 2-C Special Terms and
Conditions, Section 15.0 from the Publisher including, but not limited to:
• how it will assist a Purchasing Entity obtain this information from the
Publisher
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., Suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
• how it will assist a Purchasing Entity to gain answers to questions, and
• how it will assist the Purchasing entity obtain third party attestations, reports,
security credentials, standards and certifications related to the
Publisher's software.
Question 18: Offeror must describe how it will address Section 2-C Terms and Conditions, Sec.
14.8.2 that requires COTS Software to be free of viruses, backdoors, worms,
spyware, malware and other malicious code that could hamper performance, collect
unlawfully any personally identifiable information, or prevent products from
performing and mitigate any software the Purchasing Entity has reason to believe
has harmful code.
SERVICE LEVEL AGREEMENTS
Qustion 19: Offeror, as part of its proposal, must provide a sample of Service Level
Agreements (SLA) they can offer to enable Participating Entity to measure contract
performance. Offeror should also include proposed consequences/remedies for failure to
achieve SLAB.
Question 20: In a recent survey of other states, certain model Terms and Conditions have been identified as
the most important to be included in agreements (ex: End User License Agreements) with software
publishers. Describe your ability and willingness to require Publishers to agree to specific terms and
conditions as a prerequisite to selling off this resultant contract. Describe any successes you have had
previously in requiring Publishers to accept minimum terms prescribed by an RFP or similar process.
Describe your willingness to identify Publishers who aren't willing to accept Model Terms and provide the
Purchasing Entity with this information before a purchase is made. Some specific examples identified as
important to states include:
• Governing Law; Jurisdiction and Venue
• Protection of Purchasing Entity's Confidential Information
• Indemnification for Intellectual Property Infringement
• Unacceptability of Click through links — All terms and conditions must be identified in
the agreement. Purchasing Entities cannot agree to linked terms that are posted
elsewhere and may change.
• Unacceptability of auto -renewal of licenses
End of Attachment 3-A
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
Attachment 3-B
Key Personnel Proposal
Answer all questions thoroughly in the spaces provided. Complete this form in full for each one of the key
personnel proposed to be involved in carrying out the Work. Insert or attach a separate resume if desired, but
any attached resumes are supplemental to this form and do not substitute for this form. If there are more than three
(3) Key Personnel, please utilize the same form for each additional Personnel.
Name:
x
How long with company?
x years
Current position
x
How long in position?
x years
in company:
Position for the Services:
x
How much of time will be
x
dedicated to the Services?
What primary functions
will be assigned?
x
Describe person's
experience in performing
services like those that
x
are to be assigned:
List person's job -related
training and education:
x
Resume:
filename
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., Suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
Name:
x
How long with company?
x years
Current position
7
x
How long in position?
x years
in company:
Position for the Services:
x
How much of time will be
x
dedicated to the Services?
What primary functions
will be assigned?
x
Describe person's
experience in performing
services like those that
x
are to be assigned:
List person's job -related
training and education:
x
Resume:
filename
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., Suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
Name:
x
How long with company?
x years
Current position
7
x
How long in position?
x years
in company:
Position for the Services:
x
How much of time will be
x
dedicated to the Services?
What primary functions
will be assigned?
x
Describe person's
experience in performing
services like those that
x
are to be assigned:
List person's job -related
training and education:
x
Resume:
filename
End of Attachment 3-B
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., Suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
Attachment 3-C
Proposed Subcontractors and Partners
Check "NO" if you WILL NOT subcontract any portion of the Work and will therefore be carrying out all of the Work
with your own personnel.
Q NO, the Offeror will not subcontract any portion of the Work.
If you WILL subcontract any portion of the Work, check "YES" below and list name of persons or companies you
propose to use as subcontractors.
1. Fill in the information for every significant subcontractor — indicate the type of work the subcontractor will
perform under the Contract, and their approximate percentage of the total Contract work.
2. Provide copies of relevant certifications each one possesses in the Attachment Supplements section.
3. Provide description of quality assurance methods and quality control measures that you will use to ensure
that Subcontractor work meets the Contract requirements.
4. State may demand additional information about proposed subcontractors as a precondition of award.
Q YES, the Offeror will use the Subcontractors listed below:
1 •
Name
select
1 •
Name
select
2•
Name
Name
Name
select
3•
select
4•
select
5•
Name
select
6•
Name
select
7•
Name
select
8.
Name
select
9•
Name
select
End of Attachment 3-C
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Q
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
Attachment 3-D
Boycott of Israel Disclosure
Please note that if any of the following apply to this Solicitation, Contract, or Contractor, then the Offeror shall
select the "Exempt Solicitation, Contract, or Contractor" option below:
• The Solicitation or Contract has an estimated value of less than $100,000;
• Contractor is a sole proprietorship;
• Contractor has fewer than ten (10) employees; OR
• Contractor is a non-profit organization.
Pursuant to A.R.S. §35-393.01, public entities are prohibited from entering into contracts "unless the contract
includes a written certification that the company is not currently engaged in, and agrees for the duration of the
contract to not engage in, a boycott of goods or services from Israel."
Under A.R.S. §35-393:
1. "Boycott' means engaging in a refusal to deal, terminating business activities or performing other actions
that are intended to limit commercial relations with entities doing business in Israel or in territories controlled
by Israel, if those actions are taken either:
(a) Based in part on the fact that the entity does business in Israel or in territories controlled by Israel.
(b) In a manner that discriminates on the basis of nationality, national origin or religion and that is not
based on a valid business reason.
"Company" means an organization, association, corporation, partnership, joint venture,
limited partnership, limited liability partnership, limited liability company or other entity or
business association, including a wholly owned subsidiary, majority -owned subsidiary, parent
company or affiliate, that engages in for -profit activity and that has ten or more full-time
employees.
5. "Public entity" means this State, a political subdivision of this State or an agency, board, commission or
department of this State or a political subdivision of this State.
The certification below does not include boycotts prohibited by 50 United States Code Section 4842 or a regulation issued
pursuant to that section. See A.R.S. §35-393.03.
In compliance with A.R.S. §§35-393 et seq., all offerors must select one of the following:
❑ The Company submitting this Offer does not participate in, and agrees not to participate in during the term of the
contract, a boycott of Israel in accordance with A.R.S. §§35-393 et seq. I understand that my entire response will
become public record in accordance with A.A.C. R2-7-C317.
❑ The Company submitting this Offer does participate in a boycott of Israel as described in A.R.S. §§35-393 et seq.
❑ Exempt Solicitation, Contract, or Contractor.
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., Suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
City
Indicate which of the following statements applies to this Contract:
❑ Solicitation or Contract has an estimated value of less than $100,000;
❑ Contractor is a sole proprietorship;
❑ Contractor has fewer than ten (10) employees; and/or
❑ Contractor is a non-profit organization.
Company Name
Address
State Zip
End of Attachment 3-D
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Printed Name
Title
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
Attachment 4
Pricing Sheet
Pricing must be shown in the EXCEL sheet(s) titled as shown below:
1. The following EXCEL document(s) has/have been provided for Offeror's completion and
submission - titled as follows:
ATTACHMENT 4 PRICING SHEET
INSTRUCTIONS:
Please carefully read the Instructions provided in cell C3 of each tab in the file Attachment 4 Pricing
Sheet.
You must complete at least one (1) Optional Line Item or all Required Line Items in
the Items (F) tab in APP in order for your Offer to be considered.
End of Attachment 4
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., Suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
Attachment 5-A
Confidential Information Designation
All materials submitted as part of a response to a solicitation are subject to Arizona public records law and will be
disclosed if there is an appropriate public records request at the time of or after the award of the contract.
Recognizing there may be materials included in a solicitation response that are proprietary or a trade secret, a
process is set out in A.A.C. R2-7-103 (copy attached) that will allow qualifying materials to be designated as
confidential and excluded from disclosure. For purposes of this process the definition of "trade secret" will be the
same as that set out in A.A.C. R2-7-101(52).
Complete this form return it with your Offer along with the appropriate supporting information to assist State in
making its determination as to whether any of the materials submitted as part of your Offer should be designated
confidential because the material is proprietary or a trade secret and therefore not subject to disclosure.
STATE WILL NOT CONSIDER ANY MATERIAL IN YOUR OFFER "CONFIDENTIAL" UNLESS DESIGNATED ON THIS FORM
Check one of the following — if neither is checked, State will assume that as equivalent to "DOES NOT":
O This response DOES NOT contain proprietary or trade secret information. I understand that my entire
response will become public record in accordance with A.A.C. R2-7-C317.
O I This response DOES contain trade secret information because it contains information that:
Is a formula, pattern, compilation, program, device, method, technique or process, AND
Derives independent economic value, actual or potential, from not being generally known to, and
not being readily ascertainable by proper means by, other persons who can obtain economic value
from its disclosure or use; AND
Is the subject of efforts by myself or my organization that are reasonable under the circumstances
to maintain its secrecy.
NOTE: Failure to attach an explanation may result in a determination that the information does not meet the statutory
trade secret definition. All information that does not meet the definition of trade secret as defined by A.A.C. R2-7-
101(52) will become public in accordance with A.A.C. R2-7-C317. State may make its own determination on materials
in accordance with A.A.C. R2-7-103.
If State agrees with Offeror's designation of trade secret or confidentiality and the determination is challenged, the
undersigned hereby agrees to cooperate and support the defense of the determination with all interested parties,
including legal counsel or other necessary assistance.
By submitting this response, Offeror agrees that the entire Offer, including confidential, trade secret and proprietary
information may be shared with an evaluation committee and technical advisors during the evaluation process.
Offeror agrees to indemnify and hold State, its agents and employees, harmless from any claims or causes of action
relating to State's withholding of information based upon reliance on the above representations, including the
payment of all costs and attorney fees incurred by State in defending such an action.
x
Offeror Company Name
X
Address
X
City State Zip
PART 3 of the Solicitation Documents
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X
Printed Name
X
Title
End of Attachment 5-A
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., Suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
Copy of A.A. C. R2-7-103 [Confidential Information]
as was current at time of Solicitation issuance
IndOMAIQA91.101A V AaAVA•Nl:.]411WA
A. If a person wants to assert that a person's offer, specification, or protest contains a trade secret or
other proprietary information, a person shall include with the submission a statement supporting this
assertion. A person shall clearly designate any trade secret and other proprietary information, using
the term "confidential". Contract terms and conditions, pricing, and information generally available to
the public are not considered confidential information under this Section.
B. Until a final determination is made under subsection (C), an agency chief procurement officer shall
not disclose information designated as confidential under subsection (A) except to those individuals
deemed by an agency chief procurement officer to have a legitimate state interest.
C. Upon receipt of a submission, an agency chief procurement officer shall make one of the following
written determinations:
1. The designated information is confidential and the agency chief procurement officer shall not
disclose the information except to those individuals deemed by the agency chief procurement
officer to have a legitimate state interest,
2. The designated information is not confidential; or
3. Additional information is required before a final confidentiality determination can be made.
D. If an agency chief procurement officer determines that information submitted is not confidential, a
person who made the submission shall be notified in writing. The notice shall include a time period
for requesting a review of the determination by the state procurement administrator.
E. An agency chief procurement officer may release information designated as confidential under
subsection (A) if:
1. A request for review is not received by the state procurement administrator within the time
period specified in the notice; or
2. The state procurement administrator, after review, makes a written determination that the
designated information is not confidential.
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., Suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
Attachment 5-13
Conformance Statements
(When taking exceptions, Attachment 5-B and supplements must be uploaded as a
separate word doc. file titled "Attachment 5-13".)
STATE WILL NOT CONSIDER ANY EXCEPTIONS UNLESS DESIGNATED ON THIS FORM.
READ PARAGRAPH 6.8 OF THE INSTRUCTIONS TO OFFERORS BEFORE TAKING ANY EXCEPTIONS - TAKING
EXCEPTIONS CAN BE GROUNDS FOR STATE REJECTING OR DOWN -GRADING YOUR OFFER IN EVALUATION.
CONFORMANCE TO THE INSTRUCTIONS:
(PART 3 OF THE SOLICITATION)
Check one of the following — if neither is checked, State will assume that as equivalent to "YES":
O YES — Offeror acknowledges that it has read and understands the Instructions to Offerors in Section 3-
A of the Solicitation Documents and attests that its Offer complies.
NO — Offeror acknowledges that it has read and understands the Instructions to Offerors in Section 3-A
O of the Solicitation Documents, and attests that its Offer complies with both EXCEPT FOR the
exceptions listed in Attachment 5-113 Supplement 1.
CONFORMANCE TO THE SCOPE AND PRICING DOCUMENTS:
(PART 2 OF THE SOLICITATION)
Check one of the following — if neither is checked, State will assume that as equivalent to "YES':
O YES — Offeror acknowledges that it has read and understands the Scope Document and the Pricing
Document in Part 2 of the Solicitation Documents and attests that its Offer complies with both.
NO — Offeror acknowledges that it has read and understands the Scope Document and the Pricing
O Document in Part 2 of the Solicitation Documents and attests that its Offer complies with both EXCEPT
FOR the exceptions listed in Attachment 5-B Supplement 2.
CONFORMANCE TO THE CONTRACT TERMS AND CONDITIONS:
(PART 2 OF THE SOLICITATION)
Check one of the following — if neither is checked, State will assume that as equivalent to "YES':
YES — Offeror acknowledges that it has read and understands the Special Terms and Conditions and the
O Uniform Terms and Conditions, along with their respective Exhibits and Appendices, in Part 2 of the
Solicitation Documents and attests that its Offer complies with both.
NO — Offeror acknowledges that it has read and understand the Special Terms and Conditions and the
O Uniform Terms and Conditions, along with their respective Exhibits and Appendices in Part 2 of the
Solicitation Documents and attests that its Offer complies with both EXCEPT FOR the exceptions listed in
Attachment 5-113 Supplement 3.
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., Suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
PART 3 of the Solicitation Documents
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
ATTACHMENT 5-B Supplement No. 1:
Exceptions to Instructions
Article I
Paragraph4
or RFP Language (Copy and Paste
Reference h., Proposed Changes / Alternate Langual from Solicitation)
Section 3-A: Instructions to Offerors
X
X Exception:
x
X Rationale:
X
X Exception:
x
X Rationale:
X
X Exception:
x
X Rationale:
Company Name
PART 3 of the Solicitation Documents
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
ATTACHMENT 5-13 Supplement No. 2:
Exceptions to Scope of Work and Pricing
Article /
Paragraph
Languageor Exhibit RFP (Copy
ProposedReference ..
Section 2-A: Scope of Work
X
X Exception:
x
X Rationale:
X
X Exception:
x
X Rationale:
X
X Exception:
x
X Rationale:
Section 2-13: Pricing Document
X
X Exception:
x
X Rationale:
X
X Exception:
x
X Rationale:
Company Name Signature of Person Authorized to Sign
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4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., Suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
ATTACHMENT 5-13 Supplement No. 3:
Exceptions to Contract Terms & Conditions
Article/
Paragraph
or Exhibit RFP Language (Copy and Paste
Reference Proposed Changes / Alternate Language from Solicitation)
Section•- : Conditions
Exception:
X Rationale:
•p•
X Rationale:
X Exception:
X Rationale:
Article/
Paragraph
or
Appendix
RFP Language (Copy and Paste
Reference
Proposed Changes / Alternate Language
from Solicitation)
Section•
: Conditions
Exception:
Rationale:
Exception:
X Rationale:
Company Name Signature of Person Authorized to Sign
End of Attachment 5-13
PART 3 of the Solicitation Documents SECTION 3-13: Offer Forms
Template version 7.0 (28-JAN-2020) Page 58 of 61
A v a i l a b l e o n l i n e a t A P P. A Z g o v
Packet Pg. 181
4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., Suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
Attachment 5-C
Letter of Insurability
The Offeror shall provide a Letter of Insurability from your Insurance company as a proof that the Offeror currently
possesses the required insurance as stated in Offeror is able
to obtain the required Minimum Scope and Limits of Insurance should a contract be awarded to them.
The Letter of Insurability (and any additional letters) should be clearly marked as
Attachment 5 —C Supplement Insurance
NOTE: If Awarded a Contract, The Offeror shall provide a Certificate of Insurance (e.g. ACORD forms) and
associated policy endorsement(s) prior to beginning service(s) under the Contract.
End of Attachment 5-C
PART 3 of the Solicitation Documents
Template version 7.0 (28-JAN-2020)
SECTION 3-13: Offer Forms
Page 59 of 61
A v a i l a b l e o n l i n e a t A P P. A Z. g o v
Packet Pg. 182
4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., Suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
Attachment 5-D
RESERVED
End of Attachment 5-D
PART 3 of the Solicitation Documents
Template version 7.0 (28-JAN-2020)
SECTION 3-13: Offer Forms
Page 60 of 61
A v a i l a b l e o n l i n e a t
A P P. A Z. g o v
Packet Pg. 183
4.D.b
Request for Proposal
Arizona Department of Administration
Solicitation No. BPM002338
State Procurement Office
Description:
100 N 15th Ave., Suite 402
Software Value -Added Reseller
Phoenix, AZ 85007
Attachment 5-E
Offer Checklist
STATE MAY DETERMINE YOUR PROPOSAL IS NON -RESPONSIVE IF YOU DO NOT SUBMIT ALL ATTACHMENTS.
1.
DOCUMENT
Attachment 1:
Offer and Acceptance Form
SUBMITTED
❑ YES ❑ no
2.
Attachment 2-A:
Experience and Capacity Questionnaire
❑ YES
❑ no
3.
Attachment 2-B:
Reserved
❑ YES
❑ no
4.
Attachment 3-A:
Method Proposal
❑ YES
❑ no
5.
Attachment 3-B:
Key Personnel Proposal
❑ YES
❑ no
6.
Attachment 3-C:
Proposed Subcontractors
❑ YES
❑ no
7.
Attachment 3-E:
Israel Boycott Disclosure
❑ YES
❑ no
8.
Attachment 4:
Pricing Sheets
❑ YES
❑ no
9.
Attachment 5-A:
Confidential Information Designation
❑ YES
❑ no
10
Attachment 5-B:
Conformance Statements
❑ YES
❑ no
11
Attachment 5-C:
Letter of Insurability
❑ YES
❑ no
12
Attachment 5-D:
Reserved
❑ YES
❑ no
13
Attachment 5-E:
Offer Checklist
❑ YES
❑ no
End of Attachment 5-E
End of Part 3
PART 3 of the Solicitation Documents
Template version 7.0 (28-JAN-2020)
SECTION 3-B: Offer Forms
Page 61 of 61
A v a i l a b l e o n l i n e a t
A P P. A Z. g o v
Packet Pg. 184
Intent to Participate Report
2020 Software VAR
4.D.b
State
Self -reported
Estimated Volume*
Approximate
FY2020 Spend**
ALABAMA
ALASKA
$19,000,000
$18,950,000
ARIZONA
$109,231,280
$109,230,000
ARKANSAS
CALIFORNIA
Not reported
$30,310,000
COLORADO
$65,000,000
$88,890,000
CONNECTICUT
$18,440,703
$7,660,000
DELAWARE
DISTRICT OF COLUMBIA
FLORIDA
$35,080,336
$36,560,000
GEORGIA
HAWAII
$27,858,471
$28,560,000
IDAHO
ILLINOIS
Not reported
$1,120,000
INDIANA
IOWA
KANSAS
KENTUCKY
LOUISIANA
$28,360,022
$28,390,000
MAINE
$1,704,042
$7,300,000
MARYLAND
$20,000,000
$340,000
MASSACHUSETTS
MICHIGAN
MINNESOTA
$44,200,000
$44,190,000
MISSISSIPPI
$4,844,574
$5,340,000
MISSOURI
MONTANA
$8,100,000
$8,110,000
NEBRASKA
Not reported
$11,040,000
NEVADA
NEW HAMPSHIRE
NEW JERSEY
NEW MEXICO
$63,735,750
$19,550,000
NEW YORK
NORTH CAROLINA
NORTH DAKOTA
$503,906
$1,000,000
OHIO
OKLAHOMA
$14,118,300
$17,700,000
OREGON
$37,000,000
$44,040,000
PENNSYLVANIA
RHODE ISLAND
SOUTH CAROLINA
SOUTH DAKOTA
$1,500,000
$480,000
TENNESSEE
$19,844,909
$24,300,000
TEXAS
UTAH
$23,238,814
$24,410,000
VERMONT
$13,605,000
$0
VIRGINIA
WASHINGTON
$96,983,643
$96,380,000
WEST VIRGINIA
WISCONSIN
WYOMING
$14,000,000
$3,580,000
AMERICAN SAMOA
NORTHERN MARIANA ISLANDS
GUAM
PUERTO RICO
VIRGIN ISLANDS
TOTALS $666,349,749.18 $657,430,000.00
*These figures represent a state's self -reported annual estimated volume of spend for this commodity, including potential political subdivision usage if
available. This information is being shared as an informational courtesy only and should not be relied on or interpreted as a guarantee of any
amount of future spend.
**These figures are rounded approximations of reported sales from July 2019 through June 2020. This information is being shared as an informational
courtesy only and should not be relied on or interpreted as a guarantee of any amount of future spend.
Packet Pg. 185
4.D.b
EXHIBIT 2 — SAMPLE OF PARTICIPATING STATES' TERMS AND CONDITIONS
CALIFORNIA
Terms and conditions listed below will be incorporated and made a part of California
Participating Addenda. The state of California reserves the right to add additional terms and/or
use the latest versions of the terms below for individual Participating Addenda.
A. Terms
1) General Provisions — Information Technology (GSPD-401 IT) effective 9/5/2014.
This document can be viewed on the DGS Procurement Division website
(https://www.dgs.ca.gov/PD/Resources/Page-Content/Procurement- Division-
Resources-List-Folder/Model-Contract-Language).
2) Cloud Computing Software as a Service (SaaS) General Provisions effective
6/7/2019. This document can be viewed on the DGS Procurement Division website
(https://www.dgs.ca.gov/PD/Resources/Page-Content/Procurement- Division-
Resources-List-Folder/Model-Contract-Language).
3) Cloud Computing Special Provisions for Software as a Service (SaaS) effective
03/15/18. This document can be viewed on the DGS Procurement Division
website (https://www.dgs.ca.gov/PD/Resources/Page- Content/Procurement-
Division-Resources-List-Folder/Model-Contract- Language).
B. Administrative Fee
Contractor shall submit a check, payable to the State of California, remitted to the
Cooperative Agreement Unit for the calculated amount equal to 1.25% of the sales for
the quarterly period.
Contractor must include the Participating Addendum Number on the check. Those
checks submitted to the State without the Participating Addendum Number will be
returned to Contractor for additional identifying information.
Administrative fee checks shall be submitted to: State
of California
Department of General Services, Procurement Division
Attention: Cooperative Agreement Payment Processing 707
3rd Street, 2nd Floor, MS 2-202
West Sacramento, CA 95605
The administrative fee shall not be included as an adjustment to Contractor's
NASPO ValuePoint Master Agreement pricing.
The administrative fee shall not be invoiced or charged to the ordering agency.
Payment of the administrative fee is due irrespective of payment status on orders
or service contracts from a purchasing entity.
AG-008 103D General Conditions 1 Packet Pg. 186
4.D.b
1
2
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
Administrative fee checks are due for each quarter as follows:
Reporting Period
Due Date
January 1 to March 31
April 30
April 1 to June 30
July 31
July 1 to September 30
October 31
October 1 to December 31
January 31
Failure to meet administrative fee requirements and submit fees on a timely basis shall
constitute grounds for suspension of the Participating Addendum.
HAWAII
GENERAL CONDITIONS
Table of Contents
Page(s)
Coordination of Services by the STATE..........................................................................................2
Relationship of Parties: Independent Contractor Status and Responsibilities, Including Tax
Responsibilities...............................................................................................................................2
Personnel Requirements.................................................................................................................3
Nondiscrimination............................................................................................................................3
Conflictsof Interest.........................................................................................................................3
Subcontracts and Assignments.......................................................................................................3
Indemnification and Defense...........................................................................................................4
Costof Litigation.............................................................................................................................4
LiquidatedDamages.......................................................................................................................4
STATE'S Right of Offset.................................................................................................................4
Disputes..........................................................................................................................................4
Suspensionof Contract...................................................................................................................4
Terminationfor Default....................................................................................................................5
Termination for Convenience..........................................................................................................6
Claims Based on the Agency Procurement Officer's Actions or Omissions...................................8
Costsand Expenses.......................................................................................................................8
Payment Procedures; Final Payment; Tax Clearance....................................................................9
FederalFunds.................................................................................................................................9
Modificationsof Contract.................................................................................................................9
ChangeOrder...............................................................................................................................10
PriceAdjustment...........................................................................................................................11
Variation in Quantity for Definite Quantity Contracts.....................................................................11
Changes in Cost -Reimbursement Contract..................................................................................11
Confidentiality of Material..............................................................................................................12
Publicity.........................................................................................................................................12
Ownership Rights and Copyright..................................................................................................12
Liensand Warranties....................................................................................................................12
Audit of Books and Records of the CONTRACTOR
13
.....................................................................
2
AG-008 103D General Conditions Packet Pg. 187
4.D.b
29.
Cost or Pricing Data......................................................................................................................13
30.
Audit of Cost or Pricing Data.........................................................................................................13
31.
Records Retention........................................................................................................................13
32.
Antitrust Claims.............................................................................................................................13
33.
Patented Articles...........................................................................................................................13
34.
Governing Law..............................................................................................................................14
35.
Compliance with Laws..................................................................................................................14
36.
Conflict between General Conditions and Procurement Rules.....................................................14
37.
Entire Contract..............................................................................................................................14
38.
Severability...................................................................................................................................14
39.
Waiver...........................................................................................................................................14
40.
Pollution Control............................................................................................................................14
41.
Campaign Contributions................................................................................................................14
42.
Confidentiality of Personal Information.........................................................................................14
r
Q
AG-008 103D General Conditions 3 Packet Pg. 188
4.D.b
GENERAL
CONDITIONS
Coordination of Services by the STATE. The head of the purchasing agency ("HOPA") (which
term includes the designee of the HOPA) shall coordinate the services to be provided by the
CONTRACTOR in order to complete the performance required in the Contract. The
CONTRACTOR shall maintain communications with HOPA at all stages of the CONTRACTOR'S
work, and submit to HOPA for resolution any questions which may arise as to the performance of
this Contract. "Purchasing agency" as used in these General Conditions means and includes any
governmental body which is authorized under chapter 103D, HRS, or its implementing rules and
procedures, or by way of delegation, to enter into contracts for the procurement of goods or
services or both.
2. Relationship of Parties: Independent Contractor Status and Responsibilities, Including Tax
Responsibilities.
a. In the performance of services required under this Contract, the CONTRACTOR is an
"independent contractor," with the authority and responsibility to control and direct the
performance and details of the work and services required underthis Contract; however, the
STATE shall have a general right to inspect work in progress to determine whether, in the
STATE'S opinion, the services are being performed by the CONTRACTOR in compliance
with this Contract. Unless otherwise provided by special condition, it is understood that the
STATE does not agree to use the CONTRACTOR exclusively, and that the
CONTRACTOR is free to contract to provide services to other individuals or entities while
under contract with the STATE.
b. The CONTRACTOR and the CONTRACTOR'S employees and agents are not by reason
of this Contract, agents or employees of the State for any purpose, and the
CONTRACTOR and the CONTRACTOR'S employees and agents shall not be entitled to
claim or receive from the State any vacation, sick leave, retirement, workers' compensation,
unemployment insurance, or other benefits provided to state employees.
C. The CONTRACTOR shall be responsible for the accuracy, completeness, and adequacy
of the CONTRACTOR'S performance under this Contract. Furthermore, the CONTRACTOR
intentionally, voluntarily, and knowingly assumes the sole and entire liability to the
CONTRACTOR'S employees and agents, and to any individual not a party to this Contract,
for all loss, damage, or injury caused by the CONTRACTOR, or the CONTRACTOR'S
employees or agents in the course of their employment.
d. The CONTRACTOR shall be responsible for payment of all applicable federal, state, and
county taxes and fees which may become due and owing by the CONTRACTOR by reason
of this Contract, including but not limited to (i) income taxes, (ii) employment related fees,
assessments, and taxes, and (iii) general excise taxes. The CONTRACTOR also is
responsible for obtaining all licenses, permits, and certificates that may be required in
order to perform this Contract.
e. The CONTRACTOR shall obtain a general excise tax license from the Department of
Taxation, State of Hawaii, in accordance with section 237-9, HRS, and shall comply with
all requirements thereof. The CONTRACTOR shall obtain a tax clearance certificate from
the Director of Taxation, State of Hawaii, and the Internal Revenue Service, U.S.
Department of the Treasury, showing that all delinquent taxes, if any, levied or accrued
under state law and the Internal Revenue Code of 1986, as amended, against the
CONTRACTOR have been paid and submit the same to the STATE prior to commencing
any performance under this Contract. The CONTRACTOR shall also be solely responsible
for meeting all requirements necessary to obtain the tax clearance certificate required for
final payment under sections 103-53 and 103D-328, HRS, and paragraph 17 of these
General Conditions.
AG-008 103D General Conditions 4 Packet Pg. 189
4.D.b
f. The CONTRACTOR is responsible for securing all employee -related insurance coverage
for the CONTRACTOR and the CONTRACTOR'S employees and agents that is or may be
required by law, and for payment of all premiums, costs, and other liabilities associated
with securing the insurance coverage.
g. The CONTRACTOR shall obtain a certificate of compliance issued by the Department of
Labor and Industrial Relations, State of Hawaii, in accordance with section103D-310, HRS,
and section 3-122- 112, HAR, that is current within six months of the date of issuance.
h. The CONTRACTOR shall obtain a certificate of good standing issued by the Department
of Commerce and Consumer Affairs, State of Hawaii, in accordance with section 103D-310,
HRS, and section 3-122-112, HAR, that is current within six months of the date of issuance.
In lieu of the above certificates from the Department of Taxation, Labor and Industrial
Relations, and Commerce and Consumer Affairs, the CONTRACTOR may submit proof of
compliance through the State Procurement Office's designated certification process.
Personnel Requirements.
a. The CONTRACTOR shall secure, at the CONTRACTOR'S own expense, all personnel
required to perform this Contract.
b. The CONTRACTOR shall ensure that the CONTRACTOR'S employees or agents are
experienced and fully qualified to engage in the activities and perform the services required
under this Contract, and that all applicable licensing and operating requirements imposed
or required under federal, state, or county law, and all applicable accreditation and other
standards of quality generally accepted in the field of the activities of such employees and
agents are complied with and satisfied.
4. Nondiscrimination. No person performing work under this Contract, including any subcontractor,
employee, or agent of the CONTRACTOR, shall engage in any discrimination that is prohibited
by any applicable federal, state, or county law.
Conflicts of Interest. The CONTRACTOR represents that neither the CONTRACTOR, nor any
employee or agent of the CONTRACTOR, presently has any interest, and promises that no such
interest, director indirect, shall be acquired, that would or might conflict in any manner or degree
with the CONTRACTOR'S performance under this Contract.
6. Subcontracts and Assignments. The CONTRACTOR shall not assign or subcontract any of the
CONTRACTOR'S duties, obligations, or interests under this Contract and no such assignment or
subcontract shall be effective unless (i) the CONTRACTOR obtains the prior written consent of the
STATE, and (ii) the CONTRACTOR'S assignee or subcontractor submits to the STATE a tax
clearance certificate from the Director of Taxation, State of Hawaii, and the Internal Revenue
Service, U.S. Department of Treasury, showing that all delinquent taxes, if any, levied or accrued
under state law and the Internal Revenue Code of 1986, as amended, against the
CONTRACTOR'S assignee or subcontractor have been paid. Additionally, no assignment by the
CONTRACTOR of the CONTRACTOR'S right to compensation under this Contract shall be
effective unless and until the assignment is approved by the Comptroller of the State of Hawaii,
as provided in section 40-58, HRS.
a. Recognition of a successor in interest. When in the best interest of the State, a successor
in interest may be recognized in an assignment contract in which the STATE, the
CONTRACTOR and the assignee or transferee (hereinafter referred to as the "Assignee")
agree that:
(1) The Assignee assumes all of the CONTRACTOR'S obligations;
(2) The CONTRACTOR remains liable for all obligations under this Contract but
AG-008 103D General Conditions 5 Packet Pg. 190
4.D.b
waives all rights under this Contract as against the STATE; and
(3) The CONTRACTOR shall continue to furnish, and the Assignee shall also
furnish, all required bonds.
b. Change of name. When the CONTRACTOR asks to change the name in which it holds this
Contract with the STATE, the procurement officer of the purchasing agency (hereinafter
referred to as the "Agency procurement officer") shall, upon receipt of a document
acceptable or satisfactory to the
Agency procurement officer indicating such change of name (for example, an
amendment to the CONTRACTOR'S articles of incorporation), enter into an
amendment to this Contract with the CONTRACTOR to effect such a change of
name. The amendment to this Contract changing the CONTRACTOR'S name shall
specifically indicate that no other terms and conditions of this Contract are thereby
changed.
C. Reports. All assignment contracts and amendments to this Contract effecting changes of
the CONTRACTOR'S name or novations hereunder shall be reported to the chief
procurement officer (CPO) as defined in section 103D-203(a), HRS, within thirty days of
the date that the assignment contract or amendment becomes effective.
d. Actions affecting more than one purchasing agency. Notwithstanding the provisions of
subparagraphs 6a through 6c herein, when the CONTRACTOR holds contracts with more
than one purchasing agency of the State, the assignment contracts and the novation and
change of name amendments herein authorized shall be processed only through the
CPO's office.
Indemnification and Defense. The CONTRACTOR shall defend, indemnify, and hold harmless the
State of Hawaii, the contracting agency, and their officers, employees, and agents from and against
all liability, loss, damage, cost, and expense, including all attorneys' fees, and all claims, suits, and
demands therefore, arising out of or resulting from the acts or omissions of the CONTRACTOR or
the CONTRACTOR'S employees, officers, agents, or subcontractors under this Contract. The
provisions of this paragraph shall remain in full force and effect notwithstanding the expiration or
early termination of this Contract.
8. Cost of Litigation. In case the STATE shall, without any fault on its part, be made a party to any
litigation commenced by or against the CONTRACTOR in connection with this Contract, the
CONTRACTOR shall pay all costs and expenses incurred by or imposed on the STATE, including
attorneys' fees.
9. Liquidated Damages. When the CONTRACTOR is given notice of delay or nonperformance as
specified in paragraph 13 (Termination for Default) and fails to cure in the time specified, it is agreed
the CONTRACTOR shall pay to the STATE the amount, if any, set forth in this Contract per
calendar day from the date set for cure until either (i) the STATE reasonably obtains similar goods
or services, or both, if the CONTRACTOR is terminated for default, or (ii) until the CONTRACTOR
provides the goods or services, or both, if the CONTRACTOR is not terminated for default. To the
extent that the CONTRACTOR'S delay or nonperformance is excused under paragraph 13d
(Excuse for Nonperformance or Delay Performance), liquidated damages shall not be assessable
against the CONTRACTOR. The CONTRACTOR remains liable for damages caused other than
by delay.
10. STATE'S Right of Offset. The STATE may offset against any monies or other obligations the
STATE owes to the CONTRACTOR under this Contract, any amounts owed to the State of Hawaii r
by the CONTRACTOR under this Contract or any other contracts, or pursuant to any law or other a
obligation owed to the State of Hawaii by the CONTRACTOR, including, without limitation, the
payment of any taxes or levies of any kind or nature. The STATE will notify the CONTRACTOR in
writing of any offset and the nature of such offset. For purposes of this paragraph, amounts owed
AG-008 103D General Conditions 6 Packet Pg. 191
4.D.b
to the State of Hawaii shall not include debts or obligations which have been liquidated, agreed to
by the CONTRACTOR, and are covered by an installment payment or other settlement plan
approved by the State of Hawaii, provided, however, that the CONTRACTOR shall be entitled to
such exclusion only to the extent that the CONTRACTOR is current with, and not delinquent on,
any payments or obligations owed to the State of Hawaii under such payment or other settlement
plan.
H. Disputes. Disputes shall be resolved in accordance with section 103D-703, HRS, and chapter 3-
126, Hawaii Administrative Rules ("HAR"), as the same may be amended from time to time.
12. Suspension of Contract. The STATE reserves the right at any time and for any reason to suspend
this Contract for any reasonable period, upon written notice to the CONTRACTOR in accordance
with the provisions herein.
a. Order to stop performance. The Agency procurement officer may, by written order to the
CONTRACTOR, at any time, and without notice to any surety, require the CONTRACTOR
to stop all or any part of the performance called for by this Contract. This order shall be
for a specified
period not exceeding sixty (60) days after the order is delivered to the
CONTRACTOR, unless the parties agree to any further period. Any such order
shall be identified specifically as a stop performance order issued pursuant to this
section. Stop performance orders shall include, as appropriate: (1) A clear
description of the work to be suspended; (2) Instructions as to the issuance of further
orders by the CONTRACTOR for material or services; (3) Guidance as to action to
be taken on subcontracts; and (4) Other instructions and suggestions to the
CONTRACTOR for minimizing costs. Upon receipt of such an order, the
CONTRACTOR shall forthwith comply with its terms and suspend all performance
under this Contract at the time stated, provided, however, the CONTRACTOR shall
take all reasonable steps to minimize the occurrence of costs allocable to the
performance covered by the order during the period of performance stoppage.
Before the stop performance order expires, or within any further period to which
the parties shall have agreed, the Agency procurement officer shall either:
(1) Cancel the stop performance order; or
(2) Terminate the performance covered by such order as provided in the termination for
default provision or the termination for convenience provision of this Contract.
b. Cancellation or expiration of the order. If a stop performance order issued under this
section is cancelled at any time during the period specified in the order, or if the period of
the order or any extension thereof expires, the CONTRACTOR shall have the right to
resume performance. An appropriate adjustment shall be made in the delivery schedule
or contract price, or both, and the Contract shall be modified in writing accordingly, if:
(1) The stop performance order results in an increase in the time required for, or in the
CONTRACTOR'S cost properly allocable to, the performance of any part of this
Contract; and
(2) The CONTRACTOR asserts a claim for such an adjustment within thirty (30) days
after the end of the period of performance stoppage; provided that, if the Agency
procurement officer decides that the facts justify such action, any such claim
asserted may be received and acted upon at any time prior to final payment under
this Contract.
C. Termination of stopped performance. If a stop performance order is not cancelled and the
performance covered by such order is terminated for default or convenience, the
reasonable costs resulting from the stop performance order shall be allowable by
AG-008 103D General Conditions Packet Pg. 192
4.D.b
adjustment or otherwise.
d. Adjustment of price. Any adjustment in contract price made pursuant to this paragraph
shall be determined in accordance with the price adjustment provision of this Contract.
13. Termination for Default.
a. Default. If the CONTRACTOR refuses or fails to perform any of the provisions of this
Contract with such diligence as will ensure its completion within the time specified in this
Contract, or any extension thereof, otherwise fails to timely satisfy the Contract provisions,
or commits any other substantial breach of this Contract, the Agency procurement officer
may notify the CONTRACTOR in writing of the delay or non-performance and if not cured
in ten (10) days or any longer time specified in writing by the Agency procurement officer,
such officer may terminate the CONTRACTOR'S right to proceed with the Contract or such
part of the Contract as to which there has been delay or a failure to properly perform. In
the event of termination in whole or in part, the Agency procurement officer may procure
similar goods or services in a manner and upon the terms deemed appropriate by the
Agency procurement officer. The CONTRACTOR shall continue performance of the
Contract to the extent it is not terminated and shall be liable for excess costs incurred in
procuring similar goods or services.
CONTRACTOR'S duties. Notwithstanding termination of the Contract and subject to any
directions from the Agency procurement officer, the CONTRACTOR shall take timely,
reasonable, and
necessary action to protect and preserve property in the possession of the
CONTRACTOR in which the STATE has an interest.
C. Compensation. Payment for completed goods and services delivered and accepted by the
STATE shall be at the price set forth in the Contract. Payment for the protection and
preservation of property shall be in an amount agreed upon by the CONTRACTOR and the
Agency procurement officer. If the parties fail to agree, the Agency procurement officer
shall set an amount subject to the CONTRACTOR'S rights under chapter 3-126, HAR. The
STATE may withhold from amounts due the CONTRACTOR such sums as the Agency
procurement officer deems to be necessary to protect the STATE against loss because of
outstanding liens or claims and to reimburse the STATE for the excess costs expected to
be incurred by the STATE in procuring similar goods and services.
d. Excuse for nonperformance or delayed performance. The CONTRACTOR shall not be in
default by reason of any failure in performance of this Contract in accordance with its
terms, including any failure by the CONTRACTOR to make progress in the prosecution of
the performance hereunder which endangers such performance, if the CONTRACTOR
has notified the Agency procurement officer within fifteen (15) days after the cause of the
delay and the failure arises out of causes such as: acts of God; acts of a public enemy; acts
of the State and any other governmental body in its sovereign or contractual capacity;
fires; floods; epidemics; quarantine restrictions; strikes or other labor disputes; freight
embargoes; or unusually severe weather. If the failure to perform is caused by the failure of
a subcontractor to perform or to make progress, and if such failure arises out of causes
similar to those set forth above, the CONTRACTOR shall not be deemed to be in default,
unless the goods and services to be furnished by the subcontractor were reasonably
obtainable from other sources in sufficient time to permit the CONTRACTOR to meet the
requirements of the Contract. Upon request of the CONTRACTOR, the Agency
procurement officer shall ascertain the facts and extent of such failure, and, if such officer
determines that any failure to perform was occasioned by any one or more of the excusable
causes, and that, but for the excusable cause, the CONTRACTOR'S progress and
performance would have met the terms of the Contract, the delivery schedule shall be
revised accordingly, subject to the rights of the STATE under this Contract. As used in this
paragraph, the term "subcontractor" means subcontractor at any tier.
AG-008 103D General Conditions 8 Packet Pg. 193
4.D.b
e. Erroneous termination for default. If, after notice of termination of the CONTRACTOR'S
right to proceed under this paragraph, it is determined for any reason that the
CONTRACTOR was not in default under this paragraph, or that the delay was excusable
under the provisions of subparagraph 13d, "Excuse for nonperformance or delayed
performance," the rights and obligations of the parties shall be the same as if the notice of
termination had been issued pursuant to paragraph 14.
f. Additional rights and remedies. The rights and remedies provided in this paragraph are in
addition to any other rights and remedies provided by law or under this Contract.
14. Termination for Convenience.
a. Termination. The Agency procurement officer may, when the interests of the STATE so
require, terminate this Contract in whole or in part, for the convenience of the STATE. The
Agency procurement officer shall givewritten notice of the termination tothe CONTRACTOR
specifying the part of the Contract terminated and when termination becomes effective.
b. CONTRACTOR'S obligations. The CONTRACTOR shall incur no further obligations in
connection with the terminated performance and on the date(s) set in the notice of
termination the CONTRACTOR will stop performance to the extent specified. The
CONTRACTOR shall also terminate outstanding orders and subcontracts as they relate
to the terminated performance. The CONTRACTOR shall settle the liabilities and claims
arising out of the termination of subcontracts and orders connected with the terminated
performance subject to the STATE'S approval. The Agency procurement officer may direct
the CONTRACTOR to assign the CONTRACTOR'S right, title, and interest under
terminated orders or subcontracts to the STATE. The CONTRACTOR must still complete
the performance not terminated by the notice of termination and may incur obligations as
necessary to do so.
C. Right to goods and work product. The Agency procurement officer may require the
CONTRACTOR to transfer title and deliver to the STATE in the manner and to the extent
directed by the Agency procurement officer:
(1) Any completed goods or work product; and
(2) The partially completed goods and materials, parts, tools, dies, jigs, fixtures, plans,
drawings, information, and contract rights (hereinafter called "manufacturing
material") as the CONTRACTOR has specifically produced or specially acquired for
the performance of the terminated part of this Contract.
The CONTRACTOR shall, upon direction of the Agency procurement officer, protect
and preserve property in the possession of the CONTRACTOR in which the STATE
has an interest. If the Agency procurement officer does not exercise this right, the
CONTRACTOR shall use best efforts to sell such goods and manufacturing
materials. Use of this paragraph in no way implies that the STATE has breached
the Contract by exercise of the termination for convenience provision.
d. Compensation.
(1) The CONTRACTOR shall submit a termination claim specifying the amounts due
because of the termination for convenience together with the cost or pricing data,
submitted to the extent required by chapter 3-122, HAR, bearing on such claim. If
the CONTRACTOR fails to file a termination claim within one year from the effective
date of termination, the Agency procurement officer may pay the CONTRACTOR, if
at all, an amount set in accordance with subparagraph 14d(3) below.
(2) The Agency procurement officer and the CONTRACTOR may agree to a
settlement provided the CONTRACTOR has filed a termination claim supported by
AG-008 103D General Conditions 9 Packet Pg. 194
4.D.b
15
cost or pricing data submitted as required and that the settlement does not exceed
the total Contract price plus settlement costs reduced by payments previously
made by the STATE, the proceeds of any sales of goods and manufacturing
materials under subparagraph 14c, and the Contract price of the performance not
terminated.
(3) Absent complete agreement under subparagraph 14d(2) the Agency procurement
officer shall pay the CONTRACTOR the following amounts, provided payments
agreed to under subparagraph 14d(2) shall not duplicate payments under this
subparagraph for the following:
(A) Contract prices for goods or services accepted under the Contract;
(B) Costs incurred in preparing to perform and performing the terminated portion
of the performance plus a fair and reasonable profit on such portion of the
performance, such profit shall not include anticipatory profit or
consequential damages, less amounts paid orto be paid foraccepted goods
or services; provided, however, that if it appears that the CONTRACTOR
would have sustained a loss if the entire Contract would have been
completed, no profit shall be allowed or included and the amount of
compensation shall be reduced to reflect the anticipated rate of loss;
(C) Costs of settling and paying claims arising out of the termination of
subcontracts or orders pursuant to subparagraph 14b. These costs must
not include costs paid in accordance with subparagraph 14d(3)(B);
(D) The reasonable settlement costs of the CONTRACTOR, including
accounting, legal, clerical, and other expenses reasonably necessary for the
preparation of settlement claims and supporting data with respect to the
terminated portion of the Contract and for the termination of subcontracts
thereunder, together with reasonable storage, transportation, and other
costs incurred in connection with the protection or disposition of property
allocable to the terminated portion of this Contract. The total sum to be paid
the CONTRACTOR under this subparagraph shall not exceed the
total Contract price plus the reasonable settlement costs of the
CONTRACTOR reduced by the amount of payments otherwise
made, the proceeds of any sales of supplies and manufacturing
materials under subparagraph 14d(2), and the contract price of
performance not terminated.
(4) Costs claimed, agreed to, or established under subparagraphs 14d(2) and 14d(3)
shall be in accordance with Chapter 3-123 (Cost Principles) of the Procurement
Rules.
Claims Based on the Aaencv Procurement Officer's Actions or Omissions.
a. Changes in scope. If any action or omission on the part of the Agency procurement officer
(which term includes the designee of such officer for purposes of this paragraph 15)
requiring performance changes within the scope of the Contract constitutes the basis for a
claim by the CONTRACTOR for additional compensation, damages, or an extension of time
for completion, the CONTRACTOR shall continue with performance of the Contract in
compliance with the directions or orders of such officials, but by so doing, the
CONTRACTOR shall not be deemed to have prejudiced any claim for additional
compensation, damages, or an extension of time for completion; provided:
(1)
Written notice required. The CONTRACTOR shall give written notice to the Agency
procurement officer:
AG-008 103D General Conditions 10 Packet Pg. 195
4.D.b
(A) Prior to the commencement of the performance involved, if at that time the
CONTRACTOR knows of the occurrence of such action or omission;
(B) Within thirty (30) days after the CONTRACTOR knows of the occurrence of
such action or omission, if the CONTRACTOR did not have such knowledge
prior to the commencement of the performance; or
(C) Within such further time as may be allowed by the Agency procurement
officer in writing.
(2) Notice content. This notice shall state that the CONTRACTOR regards the act or
omission as a reason which may entitle the CONTRACTOR to additional
compensation, damages, or an extension of time. The Agency procurement officer,
upon receipt of such notice, may rescind such action, remedy such omission, or
take such other steps as may be deemed advisable in the discretion of the Agency
procurement officer;
(3) Basis must be explained. The notice required by subparagraph 15a(1) describes as
clearly as practicable at the time the reasons why the CONTRACTOR believes that
additional compensation, damages, or an extension of time may be remedies to
which the CONTRACTOR is entitled; and
(4) Claim must be justified. The CONTRACTOR must maintain and, upon request,
make available to the Agency procurement officer within a reasonable time, detailed
records to the extent practicable, and other documentation and evidence
satisfactory to the STATE, justifying the claimed additional costs or an extension
of time in connection with such changes.
b. CONTRACTOR not excused. Nothing herein contained, however, shall excuse the
CONTRACTOR from compliance with any rules or laws precluding any state officers and
CONTRACTOR from acting in collusion or bad faith in issuing or performing change orders
which are clearly not within the scope of the Contract.
C. Price adjustment. Any adjustment in the price made pursuant to this paragraph shall be
determined in accordance with the price adjustment provision of this Contract.
16. Costs and Expenses. Any reimbursement due the CONTRACTOR for per diem and
transportation expenses under this Contract shall be subject to chapter 3-123 (Cost Principles),
HAR, and the following guidelines:
a. Reimbursement for air transportation shall be foractual cost or coach class airfare,
whichever is less.
b. Reimbursement for ground transportation costs shall not exceed the actual cost of renting
an intermediate -sized vehicle.
C. Unless prior written approval of the HOPA is obtained, reimbursement for subsistence
allowance (i.e., hotel and meals, etc.) shall not exceed the applicable daily authorized
rates for inter -island or out-of-state travel that are set forth in the current Governor's
Executive Order authorizing adjustments in salaries and benefits for state officers and
employees in the executive branch who are excluded from collective bargaining coverage.
17. Payment Procedures; Final Payment; Tax Clearance.
a. Original invoices required. All payments under this Contract shall be made only upon
submission by the CONTRACTOR of original invoices specifying the amount due and
certifying that services requested under the Contract have been performed by the
CONTRACTOR according to the Contract.
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4.D.b
b. Subject to available funds. Such payments are subject to availability of funds and allotment
by the Director of Finance in accordance with chapter 37, HRS. Further, all payments shall
be made in accordance with and subject to chapter 40, HRS.
C. Prompt payment.
(1) Any money, other than retainage, paid to the CONTRACTOR shall be
disbursed to subcontractors within ten (10) days after receipt of the money in
accordance with the terms of the subcontract; provided that the
subcontractor has met all the terms and conditions of the subcontract and
there are no bona fide disputes; and
(2) Upon final payment to the CONTRACTOR, full payment to the
subcontractor, including retainage, shall be made within ten (10) days after
receipt of the money; provided that there are no bona fide disputes over the
subcontractor's performance under the subcontract.
d. Final payment. Final payment under this Contract shall be subject to sections 103-53 and
103D-328, HRS, which require a tax clearance from the Director of Taxation, State of
Hawaii, and the Internal Revenue Service, U.S. Department of Treasury, showing that all
delinquent taxes, if any, levied or accrued under state law and the Internal Revenue Code
of 1986, as amended, against the CONTRACTOR have been paid. Further, in accordance
with section 3-122-112, HAR, CONTRACTOR shall provide a certificate affirming that the
CONTRACTOR has remained in compliance with all applicable laws as required by this
section.
18. Federal Funds. If this Contract is payable in whole or in part from federal funds, CONTRACTOR
agrees that, as to the portion of the compensation under this Contract to be payable from federal
funds, the CONTRACTOR shall be paid only from such funds received from the federal
government, and shall not be paid from any other funds. Failure of the STATE to receive anticipated
federal funds shall not be considered a breach by the STATE or an excuse for nonperformance by
the CONTRACTOR.
19. Modifications of Contract.
a. In writing. Any modification, alteration, amendment, change, or extension of any term,
provision, or condition of this Contract permitted by this Contract shall be made by written
amendment to this Contract, signed by the CONTRACTOR and the STATE, provided that
change orders shall be made in accordance with paragraph 20 herein.
b. No oral modification. No oral modification, alteration, amendment, change, or extension
of any term, provision, or condition of this Contract shall be permitted.
C. Agency procurement officer. By written order, at any time, and without notice to any surety,
the Agency procurement officer may unilaterally order of the CONTRACTOR:
(A) Changes in the work within the scope of the Contract; and
(B) Changes in the time of performance of the Contract that do not alter the scope of the
Contract work.
d. Adjustments of price or time for performance. If any modification increases or decreases
the CONTRACTOR'S cost of, or the time required for, performance of any part of the work
under this Contract, an adjustment shall be made and this Contract modified in writing a
accordingly. Any adjustment in contract price made pursuant to this clause shall be
determined, where applicable, in accordance with the price adjustment clause of this
Contract or as negotiated.
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4.D.b
e. Claim barred after final payment. No claim by the CONTRACTOR for an adjustment
hereunder shall be allowed if written modification of the Contract is not made prior to final
payment under this Contract.
f. Claims not barred. In the absence of a written contract modification, nothing in this clause
shall be deemed to restrict the CONTRACTOR'S right to pursue a claim under this Contract
or for a breach of contract.
g. Head of the purchasing agency approval. If this is a professional services contract awarded
pursuant to section 103D-303 or 103D-304, HRS, any modification, alteration,
amendment, change, or extension of any term, provision, or condition of this Contract which
increases the amount payable to the CONTRACTOR by at least $25,000.00 and ten per
cent (10%) or more of the initial contract price, must receive the prior approval of the head
of the purchasing agency.
h. Tax clearance. The STATE may, at its discretion, require the CONTRACTOR to submit to
the STATE, prior to the STATE'S approval of any modification, alteration, amendment,
change, or extension of any term, provision, or condition of this Contract, a tax clearance
from the Director of Taxation, State of Hawaii, and the Internal Revenue Service, U.S.
Department of Treasury, showing that all delinquent taxes, if any, levied or accrued under
state law and the Internal Revenue Code of 1986, as amended, against the
CONTRACTOR have been paid.
Sole source contracts. Amendments to sole source contracts that would change the original
scope of the Contract may only be made with the approval of the CPO. Annual renewal of
a sole source contract for services should not be submitted as an amendment.
20. Change Order. The Agency procurement officer may, by a written order signed only by the STATE,
at any time, and without notice to any surety, and subject to all appropriate adjustments, make
changes within the general scope of this Contract in any one or more of the following:
(1) Drawings, designs, or specifications, if the goods or services to be furnished are
to be specially provided to the STATE in accordance therewith;
(2) Method of delivery; or
(3) Place of delivery.
a. Adjustments of price or time for performance. If any change order increases or decreases
the CONTRACTOR'S cost of, or the time required for, performance of any part of the work
under this Contract, whether or not changed by the order, an adjustment shall be made
and the Contract modified in writing accordingly. Any adjustment in the Contract price
made pursuant to this provision shall be determined in accordance with the price
adjustment provision of this Contract. Failure of the parties to agree to an adjustment shall
not excuse the CONTRACTOR from proceeding with the Contract as changed, provided
that the Agency procurement officer promptly and duly makes the provisional adjustments
in payment or time for performance as may be reasonable. By
proceeding with the work, the CONTRACTOR shall not be deemed to have
prejudiced any claim for additional compensation, or any extension of time for
completion.
b. Time period for claim. Within ten (10) days after receipt of a written change order under
subparagraph 20a, unless the period is extended by the Agency procurement officer in
writing, the CONTRACTOR shall respond with a claim for an adjustment. The requirement
for a timely written response by CONTRACTOR cannot be waived and shall be a condition
precedent to the assertion of a claim.
C. Claim barred after final payment. No claim by the CONTRACTOR for an adjustment
AG-008 103D General Conditions 13 Packet Pg. 198
4.D.b
hereunder shall be allowed if a written response is not given prior to final payment under
this Contract.
d. Other claims not barred. In the absence of a change order, nothing in this paragraph 20
shall be deemed to restrict the CONTRACTOR'S right to pursue a claim under the Contract
or for breach of contract.
21. Price Adjustment.
a. Price adjustment. Any adjustment in the contract price pursuant to a provision in this
Contract shall be made in one or more of the following ways:
(1) By agreement on a fixed price adjustment before commencement of the pertinent
performance or as soon thereafter as practicable;
(2) By unit prices specified in the Contract or subsequently agreed upon;
(3) By the costs attributable to the event or situation covered by the provision, plus
appropriate profit or fee, all as specified in the Contract or subsequently agreed
upon;
(4) In such other manner as the parties may mutually agree; or
(5) In the absence of agreement between the parties, by a unilateral determination by the
Agency procurement officer of the costs attributable to the event or situation
covered by the provision, plus appropriate profit or fee, all as computed by the
Agency procurement officer in accordance with generally accepted accounting
principles and applicable sections of chapters 3-123 and 3-126, HAR.
b. Submission of cost or pricing data. The CONTRACTOR shall provide cost or pricing data
for any price adjustments subject to the provisions of chapter 3-122, HAR.
22. Variation in Quantity for Definite Quantity Contracts. Upon the agreement of the STATE and the
CONTRACTOR, the quantity of goods or services, or both, if a definite quantity is specified in this
Contract, may be increased by a maximum of ten per cent (10%); provided the unit prices will
remain the same except for any price adjustments otherwise applicable; and the Agency
procurement officer makes a written determination that such an increase will either be more
economical than awarding another contract or that it would not be practical to award another
contract.
23. Changes in Cost -Reimbursement Contract. If this Contract is a cost -reimbursement contract, the
following provisions shall apply:
a. The Agency procurement officer may at any time by written order, and without notice to the
sureties, if any, make changes within the general scope of the Contract in any one or more
of the following:
(1)
(2)
(3)
(4)
(5)
AG-008 103D General Conditions
Description of performance (Attachment 1);
Time of performance (i.e., hours of the day, days of the week, etc.);
Place of performance of services;
Drawings, designs, or specifications when the supplies to be furnished are to be
specially manufactured for the STATE in accordance with the drawings, designs,
or specifications;
Method of shipment or packing of supplies; or
14
Packet Pg. 199
4.D.b
(6) Place of delivery.
b. If any change causes an increase or decrease in the estimated cost of, or the time required
for performance of, any part of the performance under this Contract, whether or not
changed by the order, or otherwise affects any other terms and conditions of this Contract,
the Agency procurement officer shall make an equitable adjustment in the (1) estimated
cost, delivery or completion schedule, or both; (2) amount of any fixed fee; and (3) other
affected terms and shall modify the Contract accordingly.
C. The CONTRACTOR must assert the CONTRACTOR'S rights to an adjustment under this
provision within thirty (30) days from the day of receipt of the written order. However, if the
Agency procurement officer decides that the facts justify it, the Agency procurement officer
may receive and act upon a proposal submitted before final payment under the Contract.
d. Failure to agree to any adjustment shall be a dispute under paragraph 11 of this Contract.
However, nothing in this provision shall excuse the CONTRACTOR from proceeding with
the Contract as changed.
e. Notwithstanding the terms and conditions of subparagraphs 23a and 23b, the estimated
cost of this Contract and, if this Contract is incrementally funded, the funds allotted for the
performance of this Contract, shall not be increased or considered to be increased except
by specific written modification of the Contract indicating the new contract estimated cost
and, if this contract is incrementally funded, the new amount allotted to the contract.
24. Confidentiality of Material.
a. All material given to or made available to the CONTRACTOR by virtue of this Contract,
which is identified as proprietary or confidential information, will be safeguarded by the
CONTRACTOR and shall not be disclosed to any individual or organization without the
prior written approval of the STATE.
b. All information, data, or other material provided by the CONTRACTOR to the STATE shall
be subject to the Uniform Information Practices Act, chapter 92F, HRS.
25. Publicity. The CONTRACTOR shall not refer to the STATE, or any office, agency, or officer thereof,
or any state employee, including the HOPA, the CPO, the Agency procurement officer, or to the
services or goods, or both, provided under this Contract, in any of the CONTRACTOR'S
brochures, advertisements, or other publicity of the CONTRACTOR. All media contacts with the
CONTRACTOR about the subject matter of this Contract shall be referred to the Agency
procurement officer.
26. Ownership Rights and Copyright. The STATE shall have complete ownership of all material, both
finished and unfinished, which is developed, prepared, assembled, or conceived by the
CONTRACTOR pursuant to this Contract, and all such material shall be considered "works made
for hire." All such material shall be delivered to the STATE upon expiration or termination of this
Contract. The STATE, in its sole discretion, shall have the exclusive right to copyright any product,
concept, or material developed, prepared, assembled, or conceived by the CONTRACTOR
pursuant to this Contract.
27. Liens and Warranties. Goods provided under this Contract shall be provided free of all liens and
provided together with all applicable warranties, or with the warranties described in the Contract
documents, whichever are greater. E
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a
AG-008 103D General Conditions 15 Packet Pg. 200
4.D.b
28. Audit of Books and Records of the CONTRACTOR. The STATE may, at reasonable
times and places, audit the books and records of the CONTRACTOR, prospective
contractor, subcontractor, or prospective subcontractor which are related to:
a. The cost or pricing data, and
b. A state contract, including subcontracts, other than a firm fixed -price contract.
29. Cost or Pricing Data. Cost or pricing data must be submitted to the Agency procurement
officer and timely certified as accurate for contracts over $100,000 unless the contract
is for a multiple -term or as otherwise specified by the Agency procurement officer.
Unless otherwise required by the Agency procurement officer, cost or pricing data
submission is not required for contracts awarded pursuant to competitive sealed bid
procedures.
If certified cost or pricing data are subsequently found to have been inaccurate,
incomplete, or noncurrent as of the date stated in the certificate, the STATE is
entitled to an adjustment of the contract price, including profit or fee, to exclude
any significant sum by which the price, including profit or fee, was increased
because of the defective data. It is presumed that overstated cost or pricing data
increased the contract price in the amount of the defect plus related overhead
and profit or fee. Therefore, unless there is a clear indication that the defective
data was not used or relied upon, the price will be reduced in such amount.
30. Audit of Cost or Pricing Data. When cost or pricing principles are applicable, the STATE
may require an audit of cost or pricing data.
31. Records Retention.
(1) Upon any termination of this Contract or as otherwise required by
applicable law, CONTRACTOR shall, pursuant to chapter 487R, HRS,
destroy all copies (paper or electronic form) of personal information
received from the STATE.
(2) The CONTRACTOR and any subcontractors shall maintain the files, books, and
records that relate to the Contract, including any personal information created or
received by the CONTRACTOR on behalf of the STATE, and any cost or pricing
data, for at least three (3) years after the date of final payment under the
Contract. The personal information shall continue to be confidential and shall
only be disclosed as permitted or required by law. After the three (3) year, or
longer retention period as required by law has ended, the files, books, and records
that contain personal information shall be destroyed pursuant to chapter 487R,
HRS or returned to the STATE at the request of the STATE.
32. Antitrust Claims. The STATE and the CONTRACTOR recognize that in actual economic
practice, overcharges resulting from antitrust violations are in fact usually borne by the
purchaser. Therefore, the CONTRACTOR hereby assigns to STATE any and all claims
for overcharges as to goods and materials purchased in connection with this Contract,
except as to overcharges which result from violations commencing after the price is
established under this Contract and which are not passed on to the STATE under an
escalation clause.
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4.D.b
33. Patented Articles. The CONTRACTOR shall defend, indemnify, and hold harmless the
STATE, and its officers, employees, and agents from and against all liability, loss,
damage, cost, and expense, including all attorneys fees, and all claims, suits, and
demands arising out of or resulting from any claims, demands, or actions by the patent
holder for infringement or other improper or unauthorized use of any patented article,
patented process, or patented appliance in connection with this Contract. The
CONTRACTOR shall be solely responsible for correcting or curing to the satisfaction of
the STATE any such infringement or improper or unauthorized use, including, without
limitation: (a) furnishing at no cost to the STATE a substitute article, process, or
appliance acceptable to the STATE, (b) paying royalties or other required payments to
the patent holder, (c) obtaining proper authorizations or releases from the patent holder,
and (d) furnishing such security to or making such arrangements with the patent holder
as may be necessary to correct or cure any such infringement or improper or
unauthorized use.
34. Governing Law. The validity of this Contract and any of its terms or provisions, as well
as the rights and duties of the parties to this Contract, shall be governed by the laws of
the State of Hawaii. Any action at law or in equity to enforce or interpret the provisions
of this Contract shall be brought in a state court of competent jurisdiction in Honolulu,
Hawaii.
35. Compliance with Laws. The CONTRACTOR shall comply with all federal, state, and
county laws, ordinances, codes, rules, and regulations, as the same may be amended
from time to time, that in any way affect the CONTRACTOR'S performance of this
Contract.
36. Conflict Between General Conditions and Procurement Rules. In the event of a conflict
between the General Conditions and the procurement rules, the procurement rules in
effect on the date this Contract became effective shall control and are hereby
incorporated by reference.
37. Entire Contract. This Contract sets forth all of the agreements, conditions,
understandings, promises, warranties, and representations between the STATE and the
CONTRACTOR relative to this Contract. This Contract supersedes all prior agreements,
conditions, understandings, promises, warranties, and representations, which shall
have no further force or effect. There are no agreements, conditions, understandings,
promises, warranties, or representations, oral or written, express or implied, between
the STATE and the CONTRACTOR other than as set forth or as referred to herein.
38. Severability. In the event that any provision of this Contract is declared invalid or
unenforceable by a court, such invalidity or unenforceability shall not affect the validity or
enforceability of the remaining terms of this Contract.
39. Waiver. The failure of the STATE to insist upon the strict compliance with any term,
provision, or condition of this Contract shall not constitute or be deemed to constitute a
waiver or relinquishment of the STATE'S right to enforce the same in accordance with
this Contract. The fact that the STATE specifically refers to one provision of the
procurement rules or one section of the Hawaii Revised Statutes, and does not include
other provisions or statutory sections in this Contract shall not constitute a waiver or
relinquishment of the STATE'S rights or the CONTRACTOR'S obligations under the
procurement rules or statutes.
40. Pollution Control. If during the performance of this Contract, the CONTRACTOR
encounters a "release" or a "threatened release" of a reportable quantity of a "hazardous
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4.D.b
substance," "pollutant," or "contaminant" as those terms are defined in section 128D-1,
HRS, the CONTRACTOR shall immediately notify the STATE and all other appropriate
state, county, or federal agencies as required by law. The Contractor shall take all
necessary actions, including stopping work, to avoid causing, contributing to, or making
worse a release of a hazardous substance, pollutant, or contaminant, and shall promptly
obey any orders the Environmental Protection Agency or the state Department of Health
issues in response to the release. In the event there is an ensuing cease -work period,
and the STATE determines that this Contract requires an adjustment of the time for
performance, the Contract shall be modified in writing accordingly.
41. Campaign Contributions. The CONTRACTOR is hereby notified of the applicability of 11-
355, HRS, which states that campaign contributions are prohibited from specified state
or county government contractors during the terms of their contracts if the contractors
are paid with funds appropriated by a legislative body.
42. Confidentiality of Personal Information.
a. Definitions.
"Personal information" means an individual's first name or first
initial and last name in combination with any one or more of the
following data elements, when either name or data elements are
not encrypted:
(1) Social security number;
(2) Driver's license number or Hawaii identification card number; or
(3) Account number, credit or debit card number, access code, or
password that would permit access to an individual's financial
information.
Personal information does not include publicly available information
that is lawfully made available to the general public from federal,
state, or local government records.
"Technological safeguards" means the technology and the policy and
procedures for use of the technology to protect and control access to
personal information.
Confidentiality of Material.
(1) All material given to or made available to the CONTRACTOR by the
STATE by virtue of this Contract which is identified as personal
information, shall be safeguarded by the CONTRACTOR and shall
not be disclosed without the prior written approval of the STATE.
(2) CONTRACTOR agrees not to retain, use, or disclose personal
information for any purpose other than as permitted or required
by this Contract.
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4.D.b
(3) CONTRACTOR agrees to implement appropriate "technological
safeguards" that are acceptable to the STATE to reduce the risk of
unauthorized access to personal information.
(4) CONTRACTOR shall report to the STATE in a prompt and
complete manner any security breaches involving personal
information.
(5) CONTRACTOR agrees to mitigate, to the extent practicable, any
harmful effect that is known to CONTRACTOR because of a use or
disclosure of personal information by CONTRACTOR in violation of
the requirements of this paragraph.
(6) CONTRACTOR shall complete and retain a log of all disclosures
made of personal information received from the STATE, or personal
information created or received by CONTRACTOR on behalf of the
STATE.
c. Security Awareness Training and Confidentiality Agreements.
(1) CONTRACTOR certifies that all of its employees who will have access
to the personal information have completed training on security
awareness topics relating to protecting personal information.
(2) CONTRACTOR certifies that confidentiality agreements have been
signed by all of its employees who will have access to the personal
information acknowledging that:
(A) The personal information collected, used, or maintained by the
CONTRACTOR will be treated as confidential;
(B) Access to the personal information will be allowed only as
necessary to perform the Contract; and
(C) Use of the personal information will be restricted to uses
consistent with the services subject to this Contract.
d. Termination for Cause. In addition to any other remedies provided for by this
Contract, if the STATE learns of a material breach by CONTRACTOR of this
paragraph by CONTRACTOR, the STATE may at its sole discretion:
(1) Provide an opportunity for the CONTRACTOR to cure the breach or end
the violation; or
(2) Immediately terminate this Contract.
In either instance, the CONTRACTOR and the STATE shall follow
chapter 487N, HRS, with respect to notification of a security breach
of personal information.
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4.D.b
e. Records Retention.
(1) Upon any termination of this Contract or as otherwise required by
applicable law, CONTRACTOR shall, pursuant to chapter 487R,
HRS, destroy all copies (paper or electronic form) of personal
information received from the STATE.
(2) The CONTRACTOR and any subcontractors shall maintain the files,
books, and records that relate to the Contract, including any personal
information created or received by the CONTRACTOR on behalf of the
STATE, and any cost or pricing data, for at least three
(3) years after the date of final payment under the Contract. The
personal information shall continue to be confidential and shall only be
disclosed as permitted or required by law. After the three (3) year, or
longer retention period as required by law has ended, the files, books,
and records that contain personal information shall be destroyed
pursuant to chapter 487R, HRS or returned to the STATE at the
request of the STATE.
STATE OF ILLINOIS
ILLINOIS
NASPO
ValuePoint
Software VAR
Specific Terms
and Conditions
Participating Addendum executed by the State of Illinois will be designated as
available to governmental units in Illinois. "Governmental unit" means State of Illinois,
any State agency as defined in Section 1-15.100 of the Illinois Procurement Code (30
ILCS 500/), officers of the State of Illinois, any public authority which has the power
to tax, or any other public entity created by statute. 30ILCS 525/.
2. In no event will the total term of any Participating Addendum, including the initial
term and any extensions or amendments, exceed ten (10) years.
3. This contract and all related public records maintained by, provided to, or required to
be provided to the State are subject to the Illinois Freedom of Information Act
notwithstanding any provision to the contrary that may be found in this contract. 5
ILCS 140.
4. Any Participating Addendum executed by the State of Illinois is contingent upon and
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subject to the availability of funds. The State of Illinois, at its sole option, may
terminate or suspend any Participating Addendum, in whole or in part, without
penalty or further payment being required, if (1) the Illinois General Assembly or the
Federal funding source fails to make an appropriation sufficient to pay such
obligation, or if funds needed are insufficient for any reason (30 ILCS 500/20-60), (2)
the Governor of Illinois decreases the Agency's funding by
reserving some or all of the Agency's appropriation(s) pursuant to power delegated
to the Governor by the Illinois General Assembly, that a reduction is necessary or
advisable based upon actual or projected budgetary considerations. Vendor will be
notified in writing of the failure of appropriation or of a reduction or decrease.
5. Any claim against any State of Illinois, any State of Illinois agency as defined in
Section 1-15.100 of the Illinois Procurement Code (30 ILCS 500/), or officers of the
State of Illinois arising out of any Participating Addendum must be filed exclusively
with the Illinois Court of Claims. 705 ILCS 505/1. Payments, including late payment
charges, will be paid in accordance with the State Prompt Payment Act and rules
when applicable. 30 ILCS 540; 74 III. Adm. Code 900. This shall be Vendor's sole
remedy for late payments by the State of Illinois. Payment
terms contained in Vendor's invoices shall have no force or effect. The State of
Illinois shall not enter into binding arbitration to resolve any dispute arising out of any
Participating Addendum. The State of Illinois does not waive sovereign immunity.
6. Illinois may further evaluate the lead state's awarded contracts to make best value
determinations.
7. Registration in the Illinois Procurement Gateway is required before a Participating
Addendum with the State of Illinois may be executed. For information on
registration, please visit www.ipg.vendorreg.com.
8. Registration in BidBuy is required before a contract with the State of Illinois can be
executed. For information on registration, please see the BidBuy Vendor
Registration Manual.
State of Illinois Chief Procurement Office General Services
Unified Procurement Program (UPP)
NASPO ValuePoint Software
VAR Terms and Conditions
V.18.3
MONTANA
Federal Terms and Conditions
(Non -Construction)
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1. NONDISCRIMINATION
The Contractor agrees that no person shall be denied benefits of, or otherwise be
subjected to discrimination in connection with the Contractor's performance under this contract,
on the ground of race, religion, color, national origin, sex or handicap. Accordingly, and to the
extent applicable, the Contractor agrees to comply with the following:
a. On the basis of race, color or national origin, in Title VI of the Civil Rights Act of 1964
(42 U.S.C. Section 2000d et seq.) as implemented by DoD regulations at 32 CFR part 195.
b. On the basis of race, color, religion, sex, or national origin, in Executive
Order 11246 {3 CFR, 1964-1965 Comp. pg. 3391, as implemented by Department of
Labor regulations at 41 CFR part 60.
c. On the basis of sex or blindness, in Title IX of the Education Amendments
of 1972 (20 U.S.C. 1681, et seq.), as implemented by DoD regulations at 32 CFR part
196.
d. On the basis of age, in The Age Discrimination Act of 1975 (42 U.S.C.
Section 6101 et seq.), as implemented by Department of Health and Human Services
regulations at 45 CFR part 90.
e. On the basis of handicap, in Section 504 of the Rehabilitation Act of 1973
(29 U.S.C. 794), as implemented by Department of Justice regulations at 28 CFR part
41 and DoD regulations at 32 CFR part 56.
2.LOBBYING
a. The Contractor agrees that it will not expend any funds appropriated by Congress to
pay any person for influencing or attempting to influence an officer or employee of any agency,
or a Member of Congress in connection with any of the following covered Federal actions: the
awarding of any Federal contract; the making of any Federal grant; the making of any Federal
loan; the entering into of any cooperative agreement; and, the extension, continuation, renewal,
amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.
b. The Final Rule, New Restrictions on Lobbying, issued by the Office of
Management and Budget and the Department of Defense (32 CFR Part 28) to
implement the provisions of Section 319 of Public Law 101-121 (31 U.S.C. Section
1352) is incorporated by reference and the State agrees to comply with all the
provisions thereof, including any amendments to the Interim Final Rule that may
hereafter be issued.
Page Break
3. DRUGFREE WORK PLACE
The Contractor agrees to comply with the requirements regarding drug -free workplace
requirements in Subpart B of 32 CFR part 26, which implements sec. 5151-5160 of the Drug -
Free Workplace Act of 1988 (Public Law 100-690, Title V, Subtitle D; 41 U.S.C. 701, et seq.).
4. ENVIRONMENTAL PROTECTION
a. The Contractor agrees that its performance under this contract shall comply with:
1. The requirements of Section 114 of the Clean Air Act (42 U.S.C. Section
7414);
2. Section 308 of the Federal Water Pollution Control Act (33 U.S.C. Section
1318), that relates generally to inspection, monitoring, entry reports, and information, and with
all regulations and guidelines issued thereunder;
3. The Resources Conservation and Recovery Act (RCRA);
4. The Comprehensive Environmental Response, Compensation and
Liabilities Act (CERCLA);
5. The National Environmental Policy Act (NEPA);
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6. The Solid Waste Disposal Act (SWDA);
7. The applicable provisions of the Clean Air Act (42 U.S.C. 7401, et seq.)
and Clean Water Act (33 U.S.C. 1251, et seq.), as implemented by Executive Order 11738 and
Environmental Protection Agency (EPA) rules at 40 CFR Part 31;
8. To identify any impact this contract may have on the quality of the human
environment and provide help as needed to comply with the National Environmental Policy Act
(NEPA, at 42 U.S.C. 4321, et seq.) and any applicable federal, state or local environmental
regulation.
b. In accordance with the EPA rules, the parties further agree that the Contractor
shall also identify to the state any impact this contract may have on:
1. The quality of the human environment, and provide help the agency may
need to comply with the National Environmental Policy Act (NEPA, at 42 U.S.0 4321, et seq.)
and to prepare Environment Impact Statements or other required environmental
documentation. In such cases, the recipient agrees to take no action that will have an adverse
environmental impact (e.g., physical disturbance of a site such as breaking of ground) until the
agency provides written notification of compliance with the environmental impact analysis
process.
2. Flood -prone areas, and provide help the agency may need to comply with
the National Flood Insurance Act of 1968 and Flood Disaster Protection Act of 1973 (42 U.S.C.
4001, et seq.), which require flood insurance, when available, for federally assisted construction
or acquisition in flood -prone areas.
3. Coastal zones, and provide help the agency may need to comply with the
Coastal Zone Management Act of 1972 (16 U.S.C. 1451, et seq.), concerning protection of U.S.
coastal resources.
4. Coastal barriers, and provide help the agency may need to comply with
the Coastal Barriers Resource Act (16 U.S.C. 3501 et seq.), concerning preservation of barrier
resources.
5. Any existing or proposed component of the National Wild and Scenic
Rivers System, and provide help the agency may need to comply with the Wild and Scenic
Rivers Act of 1968 (16 U.S.C. 1271 et seq.).
Underground sources of drinking water in areas that have an aquifer that is the sole or principal
drinking water source, and provide help the agency may need to comply with the Safe Drinking
Water Act (42 U.S.0 300H-3).
6. Underground sources of drinking water in areas that have an aquifer that
is the sole or principal drinking work source, and provide help the agency may need to comply
with the Safe Drinking Water Act (42 U.S.0 300H-3)
5.11JISE OF UNITED STATES FLAG VESSELS
a. The Contactor agrees that travel under this contract shall use U.S.-flag air carriers
air carriers holding certificates under 49 U.S.C. 41102) for international air transportation of
people and property to the extent that such service is available, in accordance with the
International Air Transportation Fair Competitive Practices Act of 1974 (49 U.S.C. 40118) and
the inter -operative guidelines issued by the Comptroller General of the United States in the
March 31, 1981, amendment to Comptroller General Decision B138942.
b. The Contactor agrees that it will comply with the Cargo Preference Act of 1954 (46
U.S.C. 1241), as implemented by Department of Transportation regulation at 46 CFR 381.7,
and 46 CFR 381.7(b).
6.DEBARMENT AND SUSPENSION
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4.D.b
a. The Contractor shall not make any award or permit any award (sub -contract or
contract) at any tier to any party which is debarred or suspended or is otherwise excluded from
or ineligible for participation in Federal assistance programs under Executive Order 12549,
"Debarment and Suspension.
b. The Contractor agrees to comply with the requirements regarding debarment and
suspension in Subpart C of the OMB guidance in 2 CFR part 180, as implemented by the DoD
in 2 CFR part 1125. The Contractor shall comply with 2 CFR Part 1125 by checking the
Excluded Parties List System (EPLS) at www.sam.gov to verify Contractor eligibility to receive
contracts and subcontracts resulting from this Agreement. The Contractor shall not solicit offers
from, nor award contracts to Contractors listed in EPLS. This verification shall be documented
in the Contractor's contract files, and shall be subject to audit by federal/State audit agencies
The Contractor agrees to communicate the requirement to comply with Subpart
C to persons at the next lower tier with whom the Contractor enters into transactions
that are "covered transactions" under Subpart B of 2 CFR part 180 and the DoD
implementation in 2 CFR part 1125.
7. BUY AMERICAN ACT
The Contractor agrees that it will not expend any funds appropriated by Congress
without complying with The Buy American Act (41 U.S.C. 10a et seq). The Buy American Act
gives preference to domestic end products and domestic construction material. In addition, the
Memorandum of Understanding between the United States of America and the European
Economic Community on Government Procurement, and the North American Free Trade
Agreement (NAFTA), provide that EEC and NAFTA end products and construction materials are
exempted from application of the Buy American Act.
&UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY POLICES
The Contractor agrees that it will comply with CFR 49 part 24, which implements the
provisions of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of
1970 (42 U.S.C. § 4601 et seq.) and provides for fair and equitable treatment of persons
displaced by federally assisted programs or persons whose property is acquired as a result of
such programs.
9. COPELAND "ANTI -KICKBACK" ACT
The Contractor agrees that it will comply with the Copeland "Anti Kickback" Act (18
U.S.C. 874) as supplemented in Department of Labor regulations (29 CFR Part 3). As applied to
this contract, the Copeland "Anti Kickback" Act makes it unlawful to induce, by force,
intimidation, threat or procuring dismissal from employment, or otherwise, any person employed
in the construction or repair of public buildings or public works, financed in whole or in part by
the United States, to give up any part of the compensation to which that person is entitled under
a contract of employment.
10.CONTRACT WORK HOURS AND SAFETY STANDARDS
The Contractor agrees that it will comply with Sections 103 and 107 of the Contract
Work Hours and Safety Standards Act.(40 U.S.C. 327330) as supplemented by Department of
Labor regulations (29 CFR Part 5). As applied to this agreement, the Contract Work Hours and
Safety Standards Act specifies that no laborer or mechanic doing any part of the work
contemplated by this agreement shall be required or permitted to work more than 40 hours in
any workweek unless paid for all additional hours at not less than 1 1/2 times the basic rate of
pay.
11. RIGHTS TO INVENTIONS MADE UNDER A CONTRACT OR AGREEMENT
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Any discovery or invention that arises during the course of the contract shall be reported
to the non -Federal entity. Contractor must comply with the requirements of 37 CFR Part 401,
"Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under
Government Grants, Contracts and Cooperative Agreements," and any implementing
regulations issued by the awarding agency.
12. CLEAN AIR ACT (42 U.S.C. 7401-7671Q.) AND THE FEDERAL WATER POLLUTION
CONTROL ACT (33 U.S.C. 1251-1387), AS AMENDED
Any Contract or subcontract in excess of $150,000 must comply with all applicable
standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q)
and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251-1387). Violations
must be reported to the State who in turn will report to the Federal awarding agency and the
Regional Office of the Environmental Protection Agency (EPA).
13. BYRD ANTI -LOBBYING AMENDMENT (31 U.S.C. 1352)
Contractors that bid for an award exceeding $100,000 must file the required certification.
Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to
pay any person or organization for influencing or attempting to influence an officer or employee
of any agency, a member of Congress, officer or employee of Congress, or an employee of a
member of Congress in connection with obtaining any Federal contract, grant or any other
award covered by 31 U.S.C. 1352. Each tier must also disclose any lobbying with non -Federal
funds that takes place in connection with obtaining any Federal award. Such disclosures are
forwarded from tier to tier up to the non -Federal award.
14. PROCUREMENT OF RECOVERED MATERIALS
Contractors must comply with section 6002 of the Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act. The requirements of Section 6002
include procuring only items designated in guidelines of the Environmental Protection Agency
(EPA) at 40 CFR part 247 that contain the highest percentage of recovered materials
practicable, consistent with maintaining a satisfactory level of competition, where the purchase
price of the item exceeds $10,000 or the value of the quantity acquired during the preceding
fiscal year exceeded $10,000; procuring solid waste management services in a manner that
maximizes energy and resource recovery; and establishing an affirmative procurement program
for procurement of recovered materials identified in the EPA guidelines.
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4.D.b
STANDARD TERMS AND CONDITIONS - RFP
ACCEPTANCE OF CONTRACT
a. By submitting a response to this RFP, offeror accepts the contract included in
Prerequisites. Much of the language included in the contract reflects the requirements of
Montana law.
b. Offerors requesting additions or exceptions to the contract terms, shall submit them to the
Q & A board by the date and time specified for questions submission. A request must be
accompanied by an explanation why the exception is being sought and what specific effect it
will have on the offeror's ability to respond to the RFP or perform the contract. The State
reserves the right to address nonmaterial requests for exceptions to the contract language
with the highest scoring offeror during contract negotiation.
c. The State shall identify any revisions to the contract language either in the Q & A Board
or in an addendum to this RFP. The addendum will apply to all offerors submitting a response
to this RFP. The State will determine any changes to the contract.
ACCEPTANCE/REJECTION OF PROPOSALS
The State reserves the right to accept or reject any or all proposals, wholly or in part, and to make
awards in any manner deemed in the best interest of the State.
ALTERATION OF SOLICITATION DOCUMENT
In the event of inconsistencies or contradictions between language contained in the State's
solicitation document and a vendor's response, the language contained in the State's original
solicitation document will prevail. Intentional manipulation and/or alteration of solicitation
document language will result in the vendor's disqualification and possible debarment.
AUTHORITY
The RFP is issued under 18-4-304, Montana Code Annotated (MCA) and Administrative Rules
Montana (ARM) 2.5.602. The RFP process is a procurement option allowing the award to be
based on stated evaluation criteria. The RFP states the relative importance of all evaluation
criteria. The State shall use only the evaluation criteria outlined in this RFP.
CLASSIFICATION AND EVALUATION OF PROPOSALS:
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a. Initial Classification of Proposals as Responsive or Nonresponsive. The State shall initially
classify all proposals as either "responsive" or "non -responsive" (ARM 2.5.602). The State
may deem a proposal nonresponsive if: (1) any of the required information is not provided; (2)
the submitted price is found to be excessive or inadequate as measured by the RFP criteria;
or (3) the proposal does not meet RFP requirements and specifications. The State may find
any proposal to be nonresponsive at any time during the procurement process. If the State
deems a proposal nonresponsive, it will not be considered further.
b. Determination of Responsibility. The procurement officer shall determine whether an
offeror has met the standards of responsibility consistent with ARM 2.5.407. An offeror may
be determined non -responsible at any time during the procurement process if information
surfaces that supports a non -responsible determination. If an offeror is found non -responsible,
the procurement officer will notify the offeror by mail. The determination will be included within
the procurement file.
c. Evaluation of Proposals. An evaluator/evaluation committee shall evaluate all responsive
proposals based on stated criteria and recommend an award to the highest scoring offeror.
After receipt of proposals and prior to the recommendation of award, the procurement officer
may initiate discussions with one or more offerors should clarification be necessary. In scoring
against stated criteria, the evaluator/evaluation committee may consider such factors as
accepted industry standards and a comparative evaluation of other proposals in terms of
differing price and quality. These scores will be used to determine the most advantageous
offering to the State. If an evaluation committee meets to deliberate and evaluate the
proposals, the public may attend and observe the evaluation committee deliberations.
d. Completeness of Proposals. Selection and award will be based on the offeror's proposal
and other items outlined in this RFP. Proposals may not include references to information
such as Internet websites, unless specifically requested. Information or materials presented
by offerors outside the formal response or subsequent discussion, negotiation, or best and
final offer, if requested, will not be considered, will have no bearing on any award, and may
result in the offeror being disqualified from further consideration.
e. Best and Final Offer. Under Montana law, the procurement officer may request a best and
final offer if additional information is required to make a final decision. The State reserves the
right to request a best and final offer based on price/cost alone. Please note that the State
rarely requests a best and final offer on cost alone.
f. Evaluator/Evaluation Committee Recommendation for Contract Award. The
evaluator/evaluation committee shall provide a written recommendation for contract award to
the procurement officer that contains the scores, justification, and rationale for the decision.
The procurement officer shall review the recommendation to ensure its compliance with the
RFP process and criteria before concurring with the evaluator's/evaluation committee's
recommendation.
g. Request for Documents Notice. Upon concurrence with the evaluator's/evaluation
committee's recommendation, the procurement officer shall request from the highest scoring
offeror the required documents and information, such as insurance documents, contract
performance security, an electronic copy of any requested material (e.g., proposal, response
to clarification questions, and/or best and final offer), and any other necessary documents.
Receipt of this request does not constitute a contract and no work may begin until a contract
signed by all parties is in place. The procurement officer shall notify all other offerors of the
State's selection.
h. Contract Execution. Upon receipt of all required materials, a contract incorporating the
highest scoring offeror's proposal will be provided to the highest scoring offeror for signature.
The highest scoring offeror shall accept and agree to all material requirements contained in
contract included with this RFP. If the highest scoring offeror does not accept all material
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requirements, the State may move to the next highest scoring offeror or cancel the RFP. Work
under the contract may begin when the contract is signed by all parties.
CONTRACT PERIOD
The contract period is stated in the contract included with this RFP. The parties may mutually
agree to a renewal of this contract in any interval that is advantageous to the State. Renewal is
solely the State's option.
DEBARMENT
Contractor certifies, by submitting this proposal, that neither it nor its principals are presently
debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from
participation in this transaction (contract) by any governmental department or Agency. If
Contractor cannot certify this statement, attach a written explanation for review by the State.
FAILURE TO COMPLY WITH INSTRUCTIONS
Offerors failing to comply with the instructions for Submitting a Proposal may be subject to point
deductions. Further, the State may deem a proposal nonresponsive or disqualify it from further
consideration if it does not follow the response format, is difficult to read or understand, or is
missing requested information.
FAILURE TO HONOR PROPOSAL
If an offeror to whom a contract is awarded refuses to accept the award (PO/contract) or fails to
deliver in accordance with the contract terms and conditions, the department may, in its discretion,
suspend the offeror for a period of time from entering into any contracts with the State of Montana.
OFFER IN EFFECT FOR 120 CALENDAR DAYS
Offeror agrees that it may not modify, withdraw, or cancel its proposal for a 120-day period
following the RFP closing date or receipt of best and final offer, if required.
OFFEROR COMPETITION
The State encourages free and open competition to obtain quality, cost-effective services and
supplies. The State designs specifications, proposal requests, and conditions to accomplish this
objective.
OFFEROR'S REPRESENTATIONS — SIGNATORY AUTHORITY, AND NO COLLUSION
Offeror represents that the person submitting the response to this RFP is authorized to legally
bind the offeror to the proposal. The offeror may not withdraw the proposal for lack of authority.
Offeror shall provide proof of authority of the person signing the RFP to bind the offeror upon
State's request. The offeror further represents that the proposal has been made without
collusion.
OWNERSHIP OF TIMELY SUBMITTED MATERIALS
The State owns all materials submitted in response to this RFP.
PERSONAL PROPERTY TAX
All personal property taxes will be paid by the vendor.
QUESTION -AND -ANSWER BOARD
Offerors having questions or requiring clarification or interpretation of any section within this RFP
must submit their questions to the Q & A board by the date specified for questions submission.
Offerors shall submit questions on the Q & A Board. Questions received after the deadline may
not be considered.
RECEIPT OF PROPOSALS AND PUBLIC INSPECTION:
a. Public Information. Subject to exceptions provided by Montana law, all information
received in response to this RFP, including copyrighted material, is public information.
Proposals will be made available for public viewing and copying shortly after the proposal due
date and time. The exceptions to this requirement are: (1) bona fide trade secrets meeting the
requirements of the Uniform Trade Secrets Act, Title 30, chapter 14, part 4, MCA, that have
been properly marked, separated, and documented; (2) matters involving individual safety as
determined by the State; and (3) other constitutional protections. See 18-4-304, MCA.
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4.D.b
b. Procurement Officer Review of Proposals. Upon opening the proposals in response to this
RFP, the procurement officer will review the proposals for information that meets the
exceptions referenced above, providing the following conditions have been met:
c. Confidential information (including any provided in electronic media) is clearly marked and
separated from the rest of the proposal. The proposal does not contain confidential material
in the cost or price section.
d. An affidavit from the offeror's legal counsel attesting to and explaining the validity of the
trade secret claim as set out in Title 30, chapter 14, part 4, MCA, is attached to each proposal
containing trade secrets. Counsel must use the State of Montana "Affidavit for Trade Secret
Confidentiality" form in requesting the trade secret claim. This affidavit form is available on
the State's website or by calling (406) 444-2575.
e. Information separated out under this process will be available for review only by the
procurement officer, the evaluator/evaluation committee members, and limited other
designees. Offerors shall pay all of its legal costs and related fees and expenses associated
with defending a claim for confidentiality should another party submit a "right to know" (open
records) request.
RECIPROCAL PREFERENCE
The State of Montana applies a reciprocal preference against a vendor submitting a bid from a
state or country that grants a residency preference to its resident businesses. A reciprocal
preference is only applied to an invitation for bid for supplies or an invitation for bid for non -
construction services for public works as defined in section 18-2-401(9), MCA, and then only if
federal funds are not involved. For a list of states that grant resident preference, go to the State
Procurement website.
RESULTING CONTRACT
This RFP and any addenda, the offeror's RFP response, including any amendments, a best and
final offer (if any), and any clarification question responses shall be incorporated by reference in
any resulting contract.
REVIEW RFP
Offerors shall carefully review the entire RFP terms and conditions. Offerors shall promptly notify
the procurement officer of any ambiguity, inconsistency, unduly restrictive specifications, or error
that they discover. In this notice, the offeror shall include any terms or requirements within the
RFP that preclude the offeror from responding or add unnecessary cost. Offerors shall provide an
explanation with suggested modifications. The notice must be received by the deadline for
questions set forth in the RFP. The State will determine any changes to the RFP.
STATE NOT RESPONSIBLE FOR PREPARATION COSTS
Offeror is solely responsible for all costs it incurs prior to contract execution.
STATE'S RIGHT TO INVESTIGATE AND REJECT
The State may make such investigations as deemed necessary to determine the offeror's ability
to provide the supplies and/or perform the services specified. The State reserves the right to reject
a proposal if the information submitted by, or investigation of, the offeror fails to satisfy the State's
determination that the offeror is properly qualified to perform the obligations of the contract. This
includes the State's ability to reject the proposal based on negative references.
STATE'S RIGHTS RESERVED
While the State has every intention to award a contract resulting from this RFP, issuance of the
RFP in no way constitutes a commitment by the State to award and execute a contract. Upon a
determination such actions would be in its best interest, the State, in its sole discretion, reserves
the right to:
•Cancel or terminate this RFP (18-4-307, MCA);
*Reject any or all proposals received in response to this RFP (ARM 2.5.602);
•Waive any undesirable, inconsequential, or inconsistent provisions of this RFP that would
not have significant impact on any proposal (ARM 2.5.505);
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•Not award a contract, if it is in the State's best interest not to proceed with contract execution
(ARM 2.5.602); or
elf awarded, terminate any contract if the State determines adequate state funds are not
available (18-4-313, MCA).
UNDERSTANDING OF SPECIFICATIONS AND REQUIREMENTS
By submitting a response to this RFP, offeror acknowledges it understands and shall comply with
the RFP specifications and requirements.
LIMITATION OF LIABILITY
Contractor's liability for Contract damages is limited to direct damages and further to no more
than twice the Contract amount. Contractor shall not be liable for special, incidental,
consequential, punitive, or indirect damages. Damages caused by injury to persons or tangible
property, or related to intellectual property indemnification, are not subject to a cap on the amount
or type of damages.
TECHNOLOGY ACCESS FOR BLIND OR VISUALLY IMPAIRED
Contractor acknowledges that no state funds may be expended for the purchase of information
technology equipment and software for use by employees, program participants, or members of
the public unless it provides blind or visually impaired individuals with access, including interactive
use of the equipment and services, that is equivalent to that provided to individuals who are not
blind or visually impaired. (18-5-603, MCA) Contact the State Procurement Bureau at (406) 444-
2575 for more information concerning nonvisual access standards.
INTELLECTUAL PROPERTY/OWNERSHIP
Mutual Use. Contractor shall make available to State, on a royalty -free, non-exclusive basis, all
patent and other legal rights in or to inventions first conceived and reduced to practice or
created in whole or in part under this Contract, if such availability is necessary for State to
receive the benefits of this Contract. Unless otherwise specified in a statement of work, both
parties shall have a royalty -free, nonexclusive, and irrevocable right to reproduce, publish, or
otherwise use copyrightable property created under this Contract. This mutual right includes (i)
all deliverables and other materials, products, modifications that Contractor has developed or
prepared for State under this Contract; (ii) any program code, or site -related program code that
Contractor has created, developed, or prepared under or primarily in support of the performance
of its specific obligations under this Contract; and (iii) manuals, training materials, and
documentation. All information described in (i), (ii), and (iii) is collectively called the "Work
Product".
Title and Ownership Rights. State retains title to and all ownership rights in all data and content,
including but not limited to multimedia or images (graphics, audio, and video), text, and the like
provided by State (the "Content"), but grants Contractor the right to access and use Content for
the purpose of complying with its obligations under this Contract and any applicable statement
of work.
Ownership of Work Product. Contractor shall execute any documents or take any other actions
as may reasonably be necessary, or as State may reasonably request, to perfect State's
ownership of any Work Product.
Copy of Work Product. Contractor shall, at no cost to State, deliver to State, upon State's
request during the term of this Contract or at its expiration or termination, a current copy of all
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Work Product in the form and on the media in use as of the date of State's request, or such
expiration or termination.
Ownership of Contractor Pre -Existing Materials. Contractor retains ownership of all literary or
other works of authorship (such as software programs and code, documentation, reports, and
similar works), information, data, intellectual property, techniques, subroutines, algorithms,
methods or related rights and derivatives that Contractor owns at the time this Contract is
executed or otherwise developed or acquired independent of this Contract and employed by
Contractor in connection with the services provided to State (the "Contractor Pre-existing
Materials"). Contractor Pre-existing Materials are not Work Product. Contractor shall provide full
disclosure of any Contractor Pre -Existing Materials to State before its use and to prove its
ownership. If, however, Contractor fails to disclose to State such Contractor Pre -Existing
Materials, Contractor shall grant State a nonexclusive, worldwide, paid -up license to use any
Contractor Pre -Existing Materials embedded in the Work Product to the extent such Contractor
Pre -Existing Materials are necessary for State to receive the intended benefit under this
Contract. Such license shall remain in effect for so long as such Pre -Existing Materials remain
embedded in the Work Product. Except as otherwise provided for in Section 22.3, Ownership of
Work Product, or as may be expressly agreed in any statement of work, Contractor shall retain
title to and ownership of any hardware it provides under this Contract.
PATENT AND COPYRIGHT PROTECTION
Third -Party Claim. If a third party makes a claim against State that the products furnished under
this Contract infringe upon or violate any patent or copyright, State shall promptly notify
Contractor. Contractor shall defend such claim in State's name or its own name, as appropriate,
but at Contractor's expense. Contractor shall indemnify State against all costs, damages, attorney
fees, and all other costs and expenses of litigation that accrue as a result of such claim. If State
reasonably concludes that its interests are not being properly protected, or if principles of
governmental or public law are involved, it may enter any action.
Product Subject of Claim. If any product furnished is likely to or does become the subject of a
claim of infringement of a patent or copyright, then Contractor may, at its option, procure for State
the right to continue using the alleged infringing product, or modify the product so that it becomes
non -infringing. If none of the above options can be accomplished, or if the use of such product by
State shall be prevented by injunction, State will determine whether the Contract has been
breached.
CONTRACT OVERSIGHT
CIO Oversight. The Chief Information Officer (CIO) for the State of Montana, or designee, may
perform contract oversight activities. Such activities may include the identification, analysis,
resolution, and prevention of deficiencies that may occur within the performance of contract
obligations. The CIO may require the issuance of a right to assurance or may issue a stop work
order.
Right to Assurance. If State, in good faith, has reason to believe that Contractor does not intend
to, is unable to, or has refused to perform or continue performing all material obligations under
this Contract, State may demand in writing that Contractor give a written assurance of intent to
perform. Contractor's failure to provide written assurance within the number of days specified in
the demand (in no event less than five business days may, at State's option, be the basis for
terminating this Contract and pursuing the rights and remedies available under this Contract or
law.
Stop Work Order. State may, at any time, by written order to Contractor require Contractor to stop
any or all parts of the work required by this Contract for the period of days indicated by State after
the order is delivered to Contractor. The order must be specifically identified as a stop work order
issued under this clause. Upon receipt of the order, Contractor shall immediately comply with its
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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. If a stop work order issued under this
clause is canceled or the period of the order or any extension expires, Contractor shall resume
work. The State Project Manager shall make the necessary adjustment in the delivery schedule
or contract price, or both, and this Contract shall be amended in writing accordingly.
System Security. Contractor shall ensure systems delivered under this Agreement are adequately
secure. For purposes of this Agreement, adequate security is defined to require compliance with
federal and State of Montana security requirements and to ensure freedom from those conditions
that may impair the State's use of its data and information technology or permit unauthorized
access to the State's data or information technology. The State of Montana has established
control standards and policies that align with the NIST Cybersecurity Framework. The latest
revision of NIST SP 800-53 is used for control adherence evaluation established after developing
a security categorization utilizing FIPS PUB 199. Thus, Contractor shall provide reasonable proof,
through independent audit reports, that the system specified under this Agreement meets or
exceeds federal and State of Montana security requirements to ensure adequate security and
privacy, confidentiality, integrity, and availability of the State's data and information technology.
Annual assurance statements shall be delivered to the Contract Liaison. Annual assurance
statements must contain a detailed accounting of the security controls provided and must be in
the form of a NIST Security Assessment Report or FedRAMP Security Assessment Report.
Physical Access. Contractor represents and warrants that it has established and during the Term
it will at all times enforce:
(a) Physical protection mechanisms for all information assets and information
technology to ensure such assets and technology are stored and protected in appropriate
data centers;
(b) Appropriate facility entry controls limiting physical access to systems that store or
process data;
(c) Processes to ensure access to facilities is monitored and is restricted on a "need
to know" basis;
(d) Controls to physically secure all Confidential Information and to properly destroy
such information when it is no longer needed.
Prohibited Activities and Spoofing. Licensor and its officers, employees, agents, subcontractors,
and affiliated users, shall not violate or attempt to violate the security of the State's network or
interfere or attempt to interfere with the State's systems, networks, authentication measures,
servers or equipment, or with the use of or access to the State's network by any other user. Such
prohibited activity includes (i) accessing or logging into a server where access is not authorized;
(ii) unauthorized probing, scanning, or testing the security or vulnerability of the State's network
or other systems; and (iii) attempting to portray itself as the State or an affiliate of the State or
otherwise attempting to gain access, without authorization, via the State's network or systems to
any account or information technology resource not belonging to Licensor or its officers,
employees, agents, subcontractors, and affiliated users ("Spoofing"). Licensor shall not perform
unauthorized Spoofing or scanning of any kind, including user account identity. Systems shall not
Spoof the mt.gov domain or engage in Email Spoofing. Email Spoofing is the creation of email
messages with a forged sender address. For example, Email Spoofing includes creating or
sending emails using the State's domain.
CONTRACT TERMINATION
Noncompliance with Department of Administration Requirements. The Department of
Administration, under the provisions of 2-17-514, MCA, retains the right to cancel or modify any
contract, project, or activity that is not in compliance with the Department's Plan for Information
Technology, State Strategic Plan for Information Technology, or any Statewide IT policy or
standard in effect as of the date of contract execution. In the event of such termination, State will
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pay for products and services delivered to date and any applicable termination fee specified in
the statement of work or work order. Any modifications to this Contract must be mutually agreed
to by the parties.
NEW MEXICO
1. Taxes:
The Contractor shall be reimbursed by the Procuring Agency for applicable New Mexico gross receipts
taxes, excluding interest or penalties assessed on the Contractor by any authority. PLEASE NOTE NO
PROPERTY TAX WILL BE PAID TO THE CONTRACTOR BY THE STATE. The payment of
taxes for any money received under this Agreement shall be the Contractor's sole responsibility and
should be reported under the Contractor's Federal and State tax identification number(s).
Contractor and any and all subcontractors shall pay all Federal, state and local taxes applicable to its
operation and any persons employed by the Contractor. Contractor shall require all subcontractors to hold
the Procuring Agency 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.
D. Retainage.
Reserved
E. Performance Bond.
Reserved
2. Term:
THIS AGREEMENT SHALL NOT BECOME EFFECTIVE UNTIL APPROVED IN WRITING BY
THE STATE PURCHASING AGENT. This Agreement shall begin on date approved by the State
Purchasing Agent, if the State Purchasing Agent has signed this Agreement, and end on DATE. The
agency reserves the right to renew the contract on an annual basis by mutual Agreement not exceed a total
of 8 years in accordance with NMSA 1978 §13-1-150.
3. Termination:
A. Grounds. The Procuring Agency may terminate this Agreement for convenience or cause. The
Contractor may only terminate this Agreement based upon the Procuring Agency's uncured, material
breach of this Agreement.
B. Notice; Procuring AgencyOpportunity to Cure.
1. Except as otherwise provided in sub -paragraph A of this Clause and the Appropriations
Clause of this Agreement, the Procuring Agency shall give Contractor written notice of termination at least
thirty (30) days prior to the intended date of termination.
2. Contractor shall give Procuring Agency written notice of termination at least thirty (30)
days prior to the intended date of termination, which notice shall (i) identify all the Procuring Agency's
material breaches of this Agreement upon which the termination is based and (ii) state what the Procuring
Agency must do to cure such material breaches. Contractor's notice of termination shall only be effective
(i) if the Procuring Agency does not cure all material breaches within the thirty (30) day notice period or
(ii) in the case of material breaches that cannot be cured within thirty (30) days, the Procuring Agency does
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not, within the thirty (30) day notice period, notify the Contractor of its intent to cure and begin with due
diligence to cure the material breach.
3. Notwithstanding the foregoing, this Agreement may be terminated immediately upon written
notice to the Contractor (i) if the Contractor becomes unable to perform the services contracted for, as
determined by the Procuring Agency; (ii) if, during the term of this Agreement, the Contractor is suspended
or debarred by the State Purchasing Agent; or (iii) the Agreement is terminated pursuant to the
Appropriations Clause of this Agreement.
C. Liabili . Except as otherwise expressly allowed or provided under this Agreement, the Procuring
Agency's sole liability upon termination shall be to pay for acceptable work performed prior to the
Contractor's receipt or issuance of a notice of termination; provided, however, that a notice of termination
shall not nullify or otherwise affect either party's liability for pre -termination defaults under or breaches of
this Agreement. The Contractor shall submit an invoice for such work within thirty (30) days of receiving
or sending the notice of termination. THIS PROVISION IS NOT EXCLUSIVE AND DOES NOT WAIVE
THE PROCURING AGENCY'S OTHER LEGAL RIGHTS AND REMEDIES CAUSED BY THE
CONTRACTOR'S DEFAULT/BREACH OF THIS AGREEMENT.
4. Appropriations:
The terms of this Agreement are contingent upon sufficient appropriations and authorization being made
by the Legislature of New Mexico for the performance of this Agreement. If sufficient appropriations and
authorization are not made by the Legislature, this Agreement shall terminate immediately upon written
notice being given by the Procuring Agency to the Contractor. The Procuring Agency's decision as to
whether sufficient appropriations are available shall be accepted by the Contractor and shall be final. If the
Procuring Agency proposes an amendment to the Agreement to unilaterally reduce funding, the Contractor
shall have the option to terminate the Agreement or to agree to the reduced funding, within thirty (30) days
of receipt of the proposed amendment.
5. Status of Contractor:
The Contractor and its agents and employees are independent contractors performing professional or
general services for the Procuring Agency and are not employees of the State of New Mexico. The
Contractor and its agents and employees shall not accrue leave, retirement, insurance, bonding, use of state
vehicles, or any other benefits afforded to employees of the State of New Mexico as a result of this
Agreement. The Contractor acknowledges that all sums received hereunder are reportable by the Contractor
for tax purposes, including without limitation, self-employment and business income tax. The Contractor
agrees not to purport to bind the State of New Mexico unless the Contractor has express written authority
to do so, and then only within the strict limits of that authority.
6. Conflict of Interest; Governmental Conduct Act:
A. The Contractor represents and warrants that it presently has no interest and, during the term of this
Agreement, shall not acquire any interest, direct or indirect, which would conflict in any manner or degree
with the performance or services required under the Agreement.
B. The Contractor further represents and warrants that it has complied with, and, during the term of
this Agreement, will continue to comply with, and that this Agreement complies with all applicable
provisions of the Governmental Conduct Act, Chapter 10, Article 16 NMSA 1978. Without in any way
limiting the generality of the foregoing, the Contractor specifically represents and warrants that:
1) in accordance with NMSA 1978, § 10-16-4.3, the Contractor does not employ, has not
employed, and will not employ during the term of this Agreement any Procuring Agency employee
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while such employee was or is employed by the Procuring Agency and participating directly or
indirectly in the Procuring Agency's contracting process;
2) this Agreement complies with NMSA 1978, § 10-16-7(A) because (i) the Contractor is not
a public officer or employee of the State; (ii) the Contractor is not a member of the family of a
public officer or employee of the State; (iii) the Contractor is not a business in which a public
officer or employee or the family of a public officer or employee has a substantial interest; or (iv)
if the Contractor is a public officer or employee of the State, a member of the family of a public
officer or employee of the State, or a business in which a public officer or employee of the State or
the family of a public officer or employee of the State has a substantial interest, public notice was
given as required by NMSA 1978, § 10-16-7(A) and this Agreement was awarded pursuant to a
competitive process;
3) in accordance with NMSA 1978, § 10-16-8(A), (i) the Contractor is not, and has not been
represented by, a person who has been a public officer or employee of the State within the preceding
year and whose official act directly resulted in this Agreement and (ii) the Contractor is not, and
has not been assisted in any way regarding this transaction by, a former public officer or employee
of the State whose official act, while in State employment, directly resulted in the Procuring
Agency's making this Agreement;
4) this Agreement complies with NMSA 1978, § 10- 1 6-9(A)because (i) the Contractor is not
a legislator; (ii) the Contractor is not a member of a legislator's family; (iii) the Contractor is not a
business in which a legislator or a legislator's family has a substantial interest; or (iv) if the
Contractor is a legislator, a member of a legislator's family, or a business in which a legislator or a
legislator's family has a substantial interest, disclosure has been made as required by NMSA 1978,
§ 10-16-7(A), this Agreement is not a sole source or small purchase contract, and this Agreement
was awarded in accordance with the provisions of the Procurement Code;
5) in accordance with NMSA 1978, § 10-16-13, the Contractor has not directly participated in
the preparation of specifications, qualifications or evaluation criteria for this Agreement or any
procurement related to this Agreement; and
6) in accordance with NMSA 1978, § 10-16-3 and § 10-16-13.3, the Contractor has not
contributed, and during the term of this Agreement shall not contribute, anything of value to a
public officer or employee of the Procuring Agency.
C. Contractor's representations and warranties in paragraphs A and B of this Clause are material
representations of fact upon which the Procuring Agency relied when this Agreement was entered into by
the parties. Contractor shall provide immediate written notice to the Procuring Agency if, at any time during
the term of this Agreement, Contractor learns that Contractor's representations and warranties in paragraphs
A and B of this Clause were erroneous on the effective date of this Agreement or have become erroneous
by reason of new or changed circumstances. If it is later determined that Contractor's representations and
warranties in paragraphs A and B of this Clause were erroneous on the effective date of this Agreement or
have become erroneous by reason of new or changed circumstances, in addition to other remedies available
to the Procuring Agency and notwithstanding anything in the Agreement to the contrary, the Procuring
Agency may immediately terminate the Agreement.
D. All terms defined in the Governmental Conduct Act have the same meaning in this Agreement.
7.
Amendment:
A. This Agreement shall not be altered, changed or amended except by instrument in writing
executed by the parties hereto and all other required signatories.
B. If the Procuring Agency proposes an amendment to the Agreement to unilaterally reduce funding
due to budget or other considerations, the Contractor shall, within thirty (30) days of receipt of the
proposed Amendment, have the option to terminate the Agreement, pursuant to the termination provisions
as set forth in the Terminations Clause of this Agreement, or to agree to the reduced funding.
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8. Merger:
This Agreement incorporates all the Agreements, covenants and understandings between the parties
hereto concerning the subject matter hereof, and all such covenants, Agreements and understandings have
been merged into this written Agreement. No prior Agreement or understanding, oral or otherwise, of the
parties or their agents shall be valid or enforceable unless embodied in this Agreement.
9. Penalties for violation of law:
The Procurement Code, NMSA 1978 §§ 13-1-28 through 13-1-199, imposes civil and criminal penalties
for violation of the statute. In addition, the New Mexico criminal statutes impose felony penalties for
illegal acts, including bribes, gratuities and kickbacks.
10. Equal Opportunity Compliance:
The Contractor agrees to abide by all federal and state laws and rules and regulations, and executive
orders of the Governor of the State of New Mexico, pertaining to equal employment opportunity. In
accordance with all such laws of the State of New Mexico, the Contractor assures that no person in the
United States shall, on the grounds of race, religion, color, national origin, ancestry, sex, age, physical or
mental handicap, or serious medical condition, spousal affiliation, sexual orientation or gender identity,
be excluded from employment with or participation in, be denied the benefits of, or be otherwise
subjected to discrimination under any program or activity performed under this Agreement. If Contractor
is found not to be in compliance with these requirements during the life of this Agreement, Contractor
agrees to take appropriate steps to correct these deficiencies.
11. Workers Compensation:
The Contractor agrees to comply with state laws and rules applicable to workers compensation benefits
for its employees. If the Contractor fails to comply with the Workers Compensation Act and applicable
rules when required to do so, this Agreement may be terminated by the Procuring Agency.
12. Applicable Law:
The laws of the State of New Mexico shall govern this Agreement, without giving effect to its choice of
law provisions. Venue shall be proper only in a New Mexico court of competent jurisdiction in
accordance with NMSA 1978, § 38-3-1 (G). By execution of this Agreement, Contractor acknowledges
and agrees to the jurisdiction of the courts of the State of New Mexico over any and all lawsuits arising
under or out of any term of this Agreement.
13. Records and Financial Audit:
The Contractor shall maintain detailed time and expenditure records that indicate the date, time, nature
and cost of services rendered during the Agreement's term and effect and retain them for a period of three
(3) years from the date of final payment under this Agreement. The records shall be subject to inspection
by the Procuring Agency, the Department of Finance and Administration and the State Auditor. The
Procuring Agency shall have the right to audit billings both before and after payment. Payment under this
Agreement shall not foreclose the right of the Procuring Agency to recover excessive or illegal payments.
14. Invalid Term or Condition:
If any term or condition of this Agreement shall be held invalid or unenforceable, the remainder of this
Agreement shall not be affected and shall be valid and enforceable.
15. Enforcement of Agreement:
A party's failure to require strict performance of any provision of this Agreement shall not waive or
diminish that parry's right thereafter to demand strict compliance with that or any other provision. No
waiver by a party of any of its rights under this Agreement shall be effective unless express and in
writing, and no effective waiver by a party of any of its rights shall be effective to waive any other rights.
16. Non -Collusion:
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In signing this Agreement, the Contractor certifies the Contractor has not, either directly or indirectly,
entered into action in restraint of free competitive bidding in connection with this offer submitted to the
State Purchasing Agent or agency or entity.
17. Notices:
Any notice required to be given to either party by this Agreement shall be in writing and shall be
delivered in person, by courier service or by U.S. mail, either first class or certified, return receipt
requested, postage prepaid, as follows:
To the Procuring Agency:
Mark Hayden, State Purchasing Agent
State Purchasing Division
1100 St. Francis Dr., Room 2016
Santa Fe, NM87505
To the Contractor:
18. Succession:
This Agreement shall extend to and be binding upon the successors and assigns of the parties.
19. Headings:
Any and all headings herein are inserted only for convenience and ease of reference and are not to be
considered in the construction or interpretation of any provision of this Agreement. Numbered or lettered
provisions, sections and subsections contained herein, refer only to provisions, sections and subsections
of this Agreement unless otherwise expressly stated.
20. Default/Breach:
In case of Default and/or Breach by the Contractor, for any reason whatsoever, the Procuring Agency and
the State of New Mexico may procure the goods or Services from another source and hold the Contractor
responsible for any resulting excess costs and/or damages, including but not limited to, direct damages,
indirect damages, consequential damages, special damages and the Procuring Agency and the State of
New Mexico may also seek all other remedies under the terms of this Agreement and under law or equity.
21. Equitable Remedies:
Contractor acknowledges that its failure to comply with any provision of this Agreement will cause the
Procuring Agency irrevocable harm and that a remedy at law for such a failure would be an inadequate
remedy for the Procuring Agency, and the Contractor consents to the Procuring Agency's obtaining from
a court of competent jurisdiction, specific performance, or injunction, or any other equitable relief in
order to enforce such compliance. Procuring Agency's rights to obtain equitable relief pursuant to this
Agreement shall be in addition to, and not in lieu of, any other remedy that Procuring Agency may have
under applicable law, including, but not limited to, monetary damages.
22. New Mexico Employees Health Coverage:
A. If Contractor has, or grows to, six (6) or more employees who work, or who are expected to work,
an average of at least 20 hours per week over a six (6) month period during the term of this Agreement,
Contractor certifies, by signing this agreement, to have in place, and agree to maintain for the term of the
Agreement, health insurance for those employees and offer that health insurance to those employees if the
expected annual value in the aggregate of any and all contracts between Contractor and the State exceed
$250,000 dollars.
B. Contractor agrees to maintain a record of the number of employees who have (a) accepted health
insurance; (b) declined health insurance due to other health insurance coverage already in place; or (c)
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declined health insurance for other reasons. These records are subject to review and audit by a
representative of the state.
C. Contractor agrees to advise all employees of the availability of State publicly financed health care
coverage programs by providing each employee with, as a minimum, the following web site link to
additional information: http://bewellnm.com.
23. Indemnification:
The Contractor shall defend, indemnify and hold harmless the Procuring Agency and the State of New
Mexico from all actions, proceeding, claims, demands, costs, damages, attorneys' fees and all other
liabilities and expenses of any kind from any source which may arise out of the performance of this
Agreement, caused by the negligent act or failure to act of the Contractor, its officers, employees,
servants, subcontractors or agents, resulting in injury or damage to persons or property during the time
when the Contractor or any officer, agent, employee, servant or subcontractor thereof has or is performing
services pursuant to this Agreement. In the event that any action, suit or proceeding related to the services
performed by the Contractor or any officer, agent, employee, servant or subcontractor under this
Agreement is brought against the Contractor, the Contractor shall, as soon as practicable but no later than
two (2) days after it receives notice thereof, notify the legal counsel of the Procuring Agency and the Risk
Management Division of the New Mexico General Services Department by certified mail.
24. Default and Force Maieure:
The State reserves the right to cancel all or any part of any orders placed under this Agreement without
cost to the State, if the Contractor fails to meet the provisions of this Agreement and, except as otherwise
provided herein, to hold the Contractor liable for any excess cost occasioned by the State due to the
Contractor's default. The Contractor shall not be liable for any excess costs if failure to perform the order
arises out of causes beyond the control and without the fault or negligence of the Contractor; such causes
include, but are not restricted to, acts of God or the public enemy, acts of the State or Federal
Government, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, unusually severe
weather and defaults of subcontractors due to any of the above, unless the State shall determine that the
supplies or services to be furnished by the subcontractor were obtainable from other sources in sufficient
time to permit the Contractor to meet the required delivery scheduled. The rights and remedies of the
State provided in this Clause shall not be exclusive and are in addition to any other rights now being
provided by law or under this Agreement.
25. Assignment:
The Contractor shall not assign or transfer any interest in this Agreement or assign any claims for money
due or to become due under this Agreement without the prior written approval of the Procuring Agency.
26. Subcontracting:
The Contractor shall not subcontract any portion of the services to be performed under this Agreement
without the prior written approval of the Procuring Agency. No such subcontract shall relieve the primary
Contractor from its obligations and liabilities under this Agreement, nor shall any subcontract obligate
direct payment from the Procuring Agency.
27. Inspection of Plant:
The State Purchasing Agent or agency or entity that is a party to this Agreement may inspect, at any
reasonable time during Contractor's regular business hours and upon prior written notice, the Contractor's
plant or place of business, or any subcontractor's plant or place of business, which is related to the
performance of this Agreement.
28. Commercial Warranty:
The Contractor agrees that the tangible personal property or services furnished under this Agreement shall
be covered by the most favorable commercial warranties the Contractor gives to any customer for such
tangible personal property or services, and that the rights and remedies provided herein shall extend to the
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State and are in addition to and do not limit any rights afforded to the State by any other Clause of this
Agreement or order. Contractor agrees not to disclaim warranties of fitness for a particular purpose or
merchantability.
29. Condition of Proposed Items:
Where tangible personal property is a part of this Agreement, all proposed items are to be NEW and of
most current production, unless otherwise specified.
30. Release:
Final payment of the amounts due under this Agreement shall operate as a release of the Procuring
Agency, its officers and employees, and the State of New Mexico from all liabilities, claims and
obligations whatsoever arising from or under this Agreement.
31. Confidentiality:
Any Confidential Information provided to the Contractor by the Procuring Agency or, developed by the
Contractor based on information provided by the Procuring Agency in the performance of this Agreement
shall be kept confidential and shall not be made available to any individual or organization by the
Contractor without the prior written approval of the Procuring Agency. Upon termination of this
Agreement, Contractor shall deliver all Confidential Information in its possession to the Procuring
Agency within thirty (30) Business Days of such termination. Contractor acknowledges that failure to
deliver such Confidential Information to the Procuring Agency will result in direct, special and incidental
damages.
32. Contractor Personnel:
A. Key Personnel. Contractor's key personnel shall not be diverted from this Agreement without the
prior written approval of the Procuring Agency. Key personnel are those individuals considered by the
Procuring Agency to be mandatory to the work to be performed under this Agreement. Key personnel
shall be:
[Insert Contractor Staff Name(s)]
B. Personnel Changes_ Replacement of any personnel shall be made with personnel of equal ability,
experience, and qualification and shall be approved by the Procuring Agency. For all personnel, the
Procuring Agency reserves the right to require submission of their resumes prior to approval. If the
number of Contractor's personnel assigned to the Project is reduced for any reason, Contractor shall,
within ten (10) Business Days of the reduction, replace with the same or greater number of personnel with
equal ability, experience, and qualifications, subject to Procuring Agency approval. The Procuring
Agency, in its sole discretion, may approve additional time beyond the ten (10) Business Days for
replacement of personnel. The Contractor shall include status reports of its efforts and progress in finding
replacements and the effect of the absence of the personnel on the progress of the Project. The Contractor
shall also make interim arrangements to assure that the Project progress is not affected by the loss of
personnel. The Procuring Agency reserves the right to require a change in Contractor's personnel if the
assigned personnel are not, in the sole opinion of the Procuring Agency, meeting the Procuring Agency's
expectations.
33. Incorporation by Reference and Precedence:
If this Agreement has been procured pursuant to a request for proposals, this Agreement is derived from
(1) the request for proposal, (including any written clarifications to the request for proposals and any
agency response to questions); (2) the Contractor's best and final offer; and (3) the Contractor's response
to the request for proposals.
In the event of a dispute under this Agreement, applicable documents will be referred to for the purpose
of clarification or for additional detail in the following order of precedence: (1) amendments to the
Agreement in reverse chronological order; (2) the Agreement, including the scope of work and all terms
and conditions thereof, (3) the request for proposals, including attachments thereto and written responses
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to questions and written clarifications; (4) the Contractor's best and final offer if such has been made and
accepted by the SPA or Procuring Agency or entity; and (5) the Contractor's response to the request for
proposals.
34. Inspection:
If this Agreement is for the purchase of tangible personal property (goods), final inspection and
acceptance shall be made at Destination. Tangible personal property rejected at Destination for non-
conformance to specifications shall be removed at Contractor's risk and expense promptly after notice of
rejection and shall not be allowable as billable items for payment.
35. Inspection of Services:
If this Agreement is for the purchase of services, the following terms shall apply.
A. Services, as used in this Clause, include services performed, workmanship, and material
furnished or utilized in the performance of services.
B. The Contractor shall provide and maintain an inspection system acceptable to the
State Purchasing Agent or other parry to this Agreement covering the services under this
Agreement. Complete records of all inspection work performed by the Contractor shall be maintained
and made available to the State Purchasing Agent or other parry to this Agreement during the term of
performance of this Agreement and for as long thereafter as the Agreement requires.
C. The State Purchasing Agent or other party to this Agreement has the right to inspect and test
all services contemplated under this Agreement to the extent practicable at all times and
places during the term of the Agreement. The State Purchasing Agent or other party to this
Agreement shall perform inspections and tests in a manner that will not unduly delay or
interfere with Contractor's performance.
D. If the State Purchasing Agent or other party to this Agreement performs inspections or tests
on the premises of the Contractor or a subcontractor, the Contractor shall furnish, and shall
require subcontractors to furnish, at no increase in Agreement price, all reasonable facilities
and assistance for the safe and convenient performance of such inspections or tests.
E. If any part of the services do not conform with the requirements of this Agreement, the State
Purchasing Agent or other party to this Agreement may require the Contractor to re -
perform the services in conformity with the requirements of this Agreement at no increase in
Agreement amount. When the defects in services cannot be corrected by re -performance, the
State Purchasing Agent or other parry to this Agreement may:
(1) require the Contractor to take necessary action(s) to ensure that future
performance conforms to the requirements of this Agreement; and
(2) reduce the Agreement price to reflect the reduced value of the services performed.
F. If the Contractor fails to promptly re -perform the services or to take the necessary action(s) to
ensure future performance in conformity with the requirements of this Agreement, the State
Purchasing Agent or other party to this Agreement may:
(1) by Agreement or otherwise, perform the services and charge to the Contractor any cost
incurred by the State Purchasing Agent or other party to this Agreement that is directly
related to the performance of such service; or
(2) terminate the Agreement for default.
THE PROVISIONS OF THIS CLA USE ARE NOT EXCL USIVE AND DO NOT WAIVE THE STATE
PARTIES' TO THIS AGREEMENT OTHER LEGAL RIGHTS AND REMEDIES CA USED BY THE
CONTRACTOR'S DEFAULT/BREACH OF THIS AGREEMENT.
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36. Insurance•
If the services contemplated under this Agreement will be performed on or in State facilities or property,
Contractor shall maintain in force during the entire term of this Agreement, the following insurance
coverage(s), naming the State of New Mexico, General Services Department or other party to this
Agreement as additional insured.
A. Workers Compensation (including accident and disease coverage) at the statutory limit.
Employers liability: $100,000.
B. Comprehensive general liability (including endorsements providing broad form property damage,
personal injury coverage and contractual assumption of liability for all liability the Contractor has
assumed under this Agreement). Limits shall not be less than the following:
a. Bodily injury: $1,000,000 per person /$1,000,000 per occurrence.
b. Property damage or combined single limit coverage: $1,000,000.
c. Automobile liability (including non -owned automobile coverage): $1,000,000.
d. Umbrella: $1,000,000.
C. Contractor shall maintain the above insurance for the term of this Agreement and name the State
of New Mexico, General Services Department or other party to this Agreement as an additional
insured and provide for 30 days cancellation notice on any Certificate of Insurance form
furnished by Contractor. Such certificate shall also specifically state the coverage provided under
the policy is primary over any other valid and collectible insurance and provide a waiver of
subrogation.
37. Arbitration:
Any controversy or claim arising between the parties shall be settled by arbitration pursuant to NMSA
1978 § 44-7A-1 et seq.
38. New Mexico Administration Reporting and Fees:
All contracts and Purchase Orders arising out of this agreement shall be deemed to include an
Administrative Fee assessment at the rate of percent (1.00 %) for the gross total sales and other revenues
(including commissions and fees charged). This assessment shall apply to all New Mexico state agencies
and local public bodies. "Gross total sales" means any invoiced amount less any applicable state and local
taxes.
For reporting purposes: list payments received for the issued invoice during the applicable quarter by state
agency, local public body and invoice number. The Quarters are as follows:
Quarter:
Period End:
Report Due:
First
September 30
October 31
Second
December 31
January 31
Third
March 31
April 30
Fourth
June 30
July 31
Even if contractor experiences zero sales during the quarter, a report is still required. This will also apply
if the contract starts partial within a Quarter. Reports and Administrative Fee shall be due no later than
thirty (30) days following the end of the quarter. Only submit one payment and one report for each quarter,
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do not combine payments or reports.
Payment shall be made by check payable to the "State Purchasing Division. " This contract number ##-
00000-##-##### must be included on all payments and Quarterly Sales Reports.
Remit Checks to: State Purchasing Division
1100 St. Francis Drive, Room 2016
PO Box 6850
Santa Fe, NM 87505
Attn: Compliance Officer
Sample Reports can be found at:
http://www. �zeneralservices.state.nm.us/statepurchasing/resourcesandinformation.aspx#Vendors
Email completed reports to: GSD.QuarterlyUsageR(&state.nm.us
For questions regarding the Administrative Fees and Quarterly Sales Reports contact the Compliance
Officer at (505) 827-0472.
UTAH
ATTACHMENT A: STATE OF UTAH STANDARD INFORMATION TECHNOLOGY TERMS AND CONDITIONS
STATE OF UTAH COOPERATIVE INFORMATION TECHNOLOGY CONTRACT
This is a State Cooperative Contract for information technology products and services. DTS policies referenced by
number in this Attachment are only applicable to the Executive Branch and are available at https://dts.utah.gov/policies.
All other policies and codes of conduct are available upon request.
1. DEFINITIONS:
a. "Access to Secure State Facilities, Data, or Technology" means Contractor will (a) enter upon secure premises
controlled, held, leased, or occupied by State of Utah or Eligible User; (b) maintain, develop, or have access
to any deployed hardware, software, firmware, or any other technology, that is in use by State of Utah or
Eligible User; or (c) have access to or receive any State Data or Confidential Information.
b. "Authorized Persons" means the Contractor's employees, officers, partners, Subcontractors, or agents of
Contractor who need Access to Secure State Facilities, Data, or Technology to enable the Contractor to
perform its responsibilities under this Contract.
c. "Background IP" means intellectual property (IP) owned or controlled prior to the effective date of this Contract
or that IP developed or acquired from activities independent of the services performed under this Contract,
including but not limited to (a) methodologies, processes, technologies, algorithms, software, or development
tools used in performing the Services, and (b) processes and reusable reports, designs, charts, plans,
specifications, documentation, forms, templates, or output which are supplied or otherwise used by or on
behalf of Contractor in the course of performing the Services or creating the Custom Deliverables, other than
portions that specifically incorporate proprietary or Confidential Information or Custom Deliverables of Eligible
User.
d. "Contract" means the Contract Signature Page(s), including all referenced attachments and documents
incorporated by reference.
e. "Contract Period" means the term of this Contract, as set forth in the Contract Signature Page(s).
f. "Contract Signature Page(s)" means the cover page that the Division and Contractor sign.
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g. "Contractor" means the individual or entity identified on the Contract Signature Page(s). "Contractor" includes
Contractor's agents, officers, employees, partners, contractors, and Subcontractors at any level.
h. "Custom Deliverables" means the product that Contractor is required to design, develop, or customize and
deliver to the Eligible User as specifically described under this Contract or an associated statement of work
for which all interest and title shall be transferred to and owned by the Eligible User. This includes every
invention, design, development, customization, improvement, process, software program, work of authorship,
documentation, formula, datum, technique, know how, or intellectual property right whatsoever or any interest
therein (whether patentable or not patentable or registerable under copyright or similar statutes or subject to
analogous protection) that is specifically made, conceived, discovered, or reduced to practice by Contractor
pursuant to this Contract.
i. "Data Breach" means the unauthorized access or acquisition of State Data that compromises the security,
confidentiality, or integrity of State Data.
j. "Division" means the State of Utah Division of Purchasing.
k. "DTS" means the Utah Department of Technology Services.
I. "Eligible User(s)" means the State of Utah's government departments, institutions, agencies, political
subdivisions (i.e., colleges, school districts, counties, cities, etc.), and, as applicable, nonprofit organizations,
agencies of the federal government, or any other entity authorized by the laws of the State of Utah to
participate in State Cooperative Contracts.
m. "Federal Criminal Background Check" means a fingerprint -based, nationwide background check conducted
and processed by the FBI.
n. "Good" means any deliverable not classified as a Custom Deliverable or Service.
o. "Intellectual Property Rights" means all rights to patents, utility models, mask works, copyrights, trademarks,
trade secrets, and other protection afforded by law to inventions, models, designs, technical information, and
applications.
p. "Non -Public Data" means records or data that are not subject to distribution to the public. Access is restricted
because it includes information that is protected by state or federal law. Non -Public Data includes, but is not
limited to, a person's name; government -issued identification numbers (e.g., Social Security, driver's license,
passport); financial account information; or Protected Health Information.
q. "Protected Health Information" (PHI) is as defined in the Health Insurance Portability and Accountability Act of
1996 (HIPAA), as amended, and its implementing regulations.
r. "Response" means the Contractor's bid, proposals, quote, or any other document used by the Contractor to
respond to the State Entity's Solicitation.
s. "Security Incident" means the attempted unauthorized access to State Data that may result in the use,
disclosure, or theft of State Data.
t. "Services" means the furnishing of labor, time, or effort by Contractor, and may include installation,
configuration, implementation, technical support, warranty maintenance, and other support services.
u. "Solicitation" means an invitation for bids, request for proposals, notice of sole source procurement, request
for statement of qualifications, request for information, or any document used to obtain bids, proposals, pricing,
qualifications, or information for the purpose of entering into this Contract.
v. "State Data" means all Confidential Information and Non -Public Data that is created, controlled, maintained,
owned, or in any way originating with the State of Utah or Eligible User regardless of where such data or
output is stored or maintained.
w. "State of Utah" means the State of Utah, in its entirety, including its institutions, agencies, departments,
divisions, authorities and instrumentalities, boards, commissions, elected or appointed officers, employees,
agents, and authorized volunteers.
x. "Subcontractors" includes contractors, manufacturers, distributors, suppliers, or consultants, at any tier, that
are under the direct or indirect control or responsibility of Contractor, including a person or entity that is, or will
be, providing goods or performing services pursuant to this Contract.
2. ESSENTIAL PROVISIONS:
a. CONTRACT JURISDICTION, CHOICE OF LAW, AND VENUE: This Contract shall be governed solely by
the laws of the State of Utah. Any action or proceeding arising from this Contract shall be brought in a court
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of competent jurisdiction in the State of Utah. Exclusive venue shall be in Salt Lake City, in the Third Judicial
District Court for Salt Lake County.
b. LAWS: Contractor and all Goods and Services delivered under this Contract will comply with all applicable
federal and state of Utah laws, including applicable licensure and certification requirements.
c. SOVEREIGN IMMUNITY: The Division and the State of Utah do not waive any protection, right, defense or
immunity under the Governmental Immunity Act of Utah, Utah Code §§ 63G-7-101 to 904, as amended, the
Eleventh Amendment to the Constitution of the United States, or otherwise, from any claim or from the
jurisdiction of any court.
d. PUBLIC INFORMATION: This Contract and any purchase orders, invoices, pricing lists, and the Response
are public records available for disclosure in accordance with the State of Utah's Government Records Access
and Management Act (GRAMA, Utah Code 63G-2-101 et seq.), except to the extent classified as protected in
accordance with UCA 63G-2-309. GRAMA takes precedence over any statements of confidentiality or similar
notations. Neither the Division, the Eligible User nor the State of Utah will inform Contractor of any request for
a copy of this Contract, including any purchase orders, invoices, pricing lists, or the Response.
e. CREDITING THE DIVISION IN PUBLICITY: Any publicity given to this Contract shall identify the Division as
the managing agency and shall not be released without prior written approval from the Division.
f. SALES TAX EXEMPTION: Goods, Custom Deliverables, and Services purchased by some Eligible Users are
being paid from that Eligible User's funds and used in the exercise of that Eligible User's essential functions
as a State of Utah governmental entity. Any such Eligible Users will provide Contractor with a copy of its sales
tax exemption number upon request.
g. SEVERABILITY: A declaration or order by any court that any provision of this Contract is illegal and void shall
not affect the legality and enforceability of any other provision of this Contract, unless the provisions are
mutually dependent.
h. AMENDMENTS: This Contract may only be amended by the mutual written agreement of the parties, provided
that the amendment is within the Scope of Work of this Contract, is within the scope/purpose of the Solicitation,
and is attached and made part of this Contract. Automatic renewals are prohibited and are deemed void even
if listed elsewhere in this Contract.
DEBARMENT: Contractor certifies that it is not presently nor has ever been debarred, suspended, proposed
for debarment, declared ineligible, or voluntarily excluded from participation by any government department
or agency, whether international, national, state, or local. Contractor must notify the Division within thirty (30)
days if debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from
participation in any contract by any governmental entity.
j. NONAPPROPRIATION OF FUNDS, REDUCTION OF FUNDS, OR CHANGES IN LAW: This Contract may
be terminated in whole or in part at the sole discretion of the Division or Eligible User upon thirty days written
notice, if the Division or Eligible User determines that (a) a change in Federal or State legislation or applicable
laws materially affects the ability of either party to perform under the terms of this Contract; or (b) that a change
in available funds affects the Division or Eligible User's ability to pay under this Contract. A change of available
funds includes, but is not limited to, a change in Federal or State funding, whether as a result of a legislative
act or an order of the President, the Governor, or Executive Director.
The Division or Eligible User, as applicable, will reimburse Contractor for the Goods or Services properly
ordered and delivered until the effective date of said notice. The Division and Eligible User are not liable for
any performance, commitments, penalties, or liquidated damages that accrue after the effective date of the
notice.
k. ENTIRE AGREEMENT: This Contract is the entire agreement between the parties, and supersedes any prior
and contemporaneous agreements and understandings between the parties, whether oral or written.
I. WAIVER: The waiver by either party of any provision, term, covenant, or condition of this Contract shall not
be deemed to be a waiver of any other provision, term, covenant, or condition of this Contract nor any
subsequent breach of the same or any other provision, term, covenant, or condition of this Contract. The
Eligible User's approval, acceptance, or payment for any Goods or Services required under this Contract shall
not be construed to operate as a waiver by the Eligible User of any right under this Contract or of any cause
of action arising out of the performance or nonperformance of this Contract.
m. CHANGES IN SCOPE: Any changes in the scope of work to be performed under this Contract shall be in the
form of a written amendment to this Contract, mutually agreed to and signed by both parties, specifying any
such changes, fee adjustments, any adjustment in time of performance, or any other significant factors arising
from the changes in the scope of work.
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4.D.b
n. TRAVEL COSTS: Unless otherwise agreed to in the contract, all travel costs associated with the delivery of
Services will be paid in accordance with the Utah Administrative Code R25-7. Invoices containing travel costs
outside of these rates will be returned to the Contractor for correction.
RECORDS ADMINISTRATION: Contractor shall maintain or supervise the maintenance of all records necessary
to properly account for Contractor's performance and the payments made by an Eligible User to Contractor. These
records shall be retained by Contractor for at least six (6) years after final payment (per Utah Administrative Code
R33-12-605 and Utah Code 78B-2-309), or until all audits initiated within the six (6) years have been completed,
whichever is later. Contractor shall allow, at no additional cost, State of Utah auditors, federal auditors, Eligible
Users or any firm identified by the Division, access to all such records. Contractor must refund to the Division any
overcharges brought to Contractor's attention by the Division or the Division's auditor and Contractor is not
permitted to offset identified overcharges by alleged undercharges to Eligible Users.
4. CERTIFY REGISTRATION AND USE OF EMPLOYMENT "STATUS VERIFICATION SYSTEM": This Status
Verification System, also referred to as "E-verify", requirement only applies to contracts issued through a Request
for Proposal process and to sole sources that are included within a Request for Proposal.
1) Contractor certifies as to its own entity, under penalty of perjury, that Contractor has registered and is
participating in the Status Verification System to verify the work eligibility status of Contractor's new
employees that are employed in the State of Utah in accordance with applicable immigration laws
including Section 63G-12-302, Utah Code, as amended.
2) Contractor shall require that the following provision be placed in each subcontract at every tier: "The
subcontractor shall certify to the main (prime or general) Contractor by affidavit that the subcontractor has
verified through the Status Verification System the employment status of each new employee of the
respective subcontractor, all in accordance with applicable immigration laws including Section 63G-12-
302, Utah Code, as amended, and to comply with all applicable employee status verification laws. Such
affidavit must be provided prior to the notice to proceed for the subcontractor to perform the work."
3) Contractor's failure to comply with this section will be considered a material breach of this Contract
4) Contractor shall protect, indemnify, and hold harmless the Division, the Eligible Users, and the State of
Utah, and anyone that the State of Utah may be liable for, against any claim, damages, or liability arising
out of or resulting from violations of the above Status Verification System Section whether violated by
employees, agents, or contractors of the following: (a) Contractor; (b) Subcontractor at any tier; and/or
(c) any entity or person for whom the Contractor or Subcontractor may be liable.
5. CONFLICT OF INTEREST: Contractor represents that none of its officers or employees are officers or employees
of the State of Utah. unless written disclosure has been made to the Division.
6. INDEPENDENT CONTRACTOR: Contractor is an independent contractor, and not an employee or agent of the
Division, the Eligible Users, or the State of Utah, and therefore is not entitled to any of the benefits associated with
such employment. Contractor has no authorization, express or implied, to bind the Division, the Eligible Users, or
the State of Utah to any agreements, settlements, liabilities, or understandings, and shall not perform any acts as
an agent for the Division, the Eligible users, or the State of Utah. Contractor is responsible for all applicable federal,
state, and local taxes and FICA contributions.
CRIMINAL BACKGROUND SCREENING: Depending on the Eligible User's policy, each employee of Contractor
and Subcontractor may be required to successfully complete a Federal Criminal Background Check, prior to being
granted Access to Secure State Facilities, State Data, or Technology. Contractor or the applicable employee shall
provide Eligible Users with sufficient personal information (at Contractor's expense) so that a Federal Criminal
Background Check may be completed by the Eligible User, at Eligible User's expense. The Eligible User will
provide Contractor with forms which must be filled out by Contractor and returned to the Eligible User. Each
employee of Contractor or a Subcontractor who will have Access to Secure State Facilities, State Data, or
Technology must be fingerprinted by the Eligible User or local law enforcement a minimum of one week prior to
needing access. At the time of fingerprinting, said employee shall disclose all felony or misdemeanor convictions.
Eligible Users may conduct a Federal Criminal Background Check based upon the fingerprints and personal
information provided and use this same information to complete a Name Check in the Utah Criminal Justice
Information System (UCJIS) at least every two years. Eligible Users may revoke Access to Secure State Facilities,
Data, and Technology granted in the event of any negative results. Contractor and the employee or subcontractor
shall immediately notify Eligible Users if an arrest or conviction for a felony or misdemeanor of any person that has
Access to Secure State Facilities, State Data or Technology occurs during the Contract Period. Eligible Users will
determine in its discretion if such person's Access to Secure State Facilities, State Data, or Technology shall
remain in effect. Felony and misdemeanor are defined by the laws of the State of Utah, regardless of where the
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conviction occurred. (DTS Policy 2000-0014 Background Investigations)
8. DRUG -FREE WORKPLACE: Contractor shall abide by the Eligible User's drug -free workplace policies while on
the Eligible User's or the State of Utah's premises.
9. CODE OF CONDUCT: If Contractor is working at facilities controlled or owned by the State of Utah, Contractor
shall follow and enforce the agency applicable code of conduct. Contractor will ensure that each employee receives
a copy of the policies and applicable codes of conduct. (DTS Policy 2000-0001 Code of Conduct, DTS Policy 1000-
0003 Acceptable Use of Information Technology Resources)
10. INDEMNITY AND LIABILITY
Indemnity Clause: Contractor shall fully indemnify, defend, and save harmless the Division, Eligible Users,
and the State of Utah from all claims, losses, suits, actions, damages, and costs of every name and description
arising out of Contractor's performance of this Contract caused by any intentional act, omission or negligence
of Contractor, its agents, employees, officers, partners, and Subcontractors, without limitation; provided,
however, that the Contractor shall not indemnify for that portion of any claim, loss, or damage due to the fault
of the Division, the Eligible User, or the State of Utah. Any limitations of the Contractor's liability will not apply
to injuries to persons, including death, or to damages to property.
b. Governmental Immunity Act: In accordance with the Constitution of the State of Utah and the Governmental
Immunity Act of Utah ("the Act", Utah Code §§63G-7-101 to 904, as amended), the Division and the State of
Utah have no liability for the operations, acts, or omissions of the Contractor or any third party. Any indemnity
obligations of the Division, Eligible Users, or the State of Utah are subject to the Constitution of the State of
Utah and the Act and limited to claims that arise from and to the extent caused by the negligent acts or
omissions of the Division or the Eligible Users in the performance of the Division's or the Eligible User's
obligations under this Contract.
c. Intellectual Property Indemnification: Contractor warrants and represents it has full ownership and clear
title free of all liens and encumbrances to any Good delivered under this contract. Contractor also warrants
that any Good, Custom Deliverable, or Service furnished by Contractor under this Contract, including its use
by the Eligible Users in unaltered form, will not infringe any copyrights, patents, trade secrets, or other
proprietary rights.
Contractor will release, indemnify, and hold the Division, the Eligible Users, and the State of Utah harmless
from liability or damages of any kind or nature, including Contractor's use of any copyrighted or un-copyrighted
composition, secret process, patented or un-patented invention, article, or appliance furnished or used in
Contractor's performance of this Contract. Additionally, if such a claim or liability is based upon an allegation
that a Good, Custom Deliverable, or Service furnished by Contractor infringes on any right protected by any
patent, copyright, trademark, trade secret, and/or proprietary right, Contractor shall indemnify and hold
harmless the Division, the Eligible Users, and the State of Utah for any judgments, settlements, costs, and
reasonable attorneys' fees resulting from such a claim or liability. Contractor shall defend all actions brought
upon such matters to be indemnified hereunder and pay all costs and expenses incidental thereto; however,
the Eligible Users shall have the right, at its option, to participate in the defense of any such action at its own
expense without relieving Contractor of any obligation hereunder. If there are any limitations of liability in this
Contract, such limitations will not apply to this section.
11. HARDWARE WARRANTY: THE STATE OF UTAH DOES NOT ACCEPT ANY PROCUREMENT ITEM "AS -IS".
CONTRACTOR WARRANTS ALL HARDWARE PORTIONS OF ANY GOOD OR CUSTOM DELIVERABLE THAT
IT DIRECTLY OR INDIRECTLY PROVIDES FOR A PERIOD OF ONE YEAR. ALL WARRANTIES GRANTED TO
THE DIVISION AND ELIGIBLE USERS BY THE UNIFORM COMMERCIAL CODE OF THE STATE OF UTAH
APPLY TO THIS CONTRACT. PRODUCT LIABILITY DISCLAIMERS AND/OR WARRANTY DISCLAIMERS
FROM CONTRACTOR OR ITS SUPPLIERS ARE REJECTED. CONTRACTOR WARRANTS THAT THE
HARDWARE: (A) WILL PERFORM AS SPECIFIED IN THE RESPONSE; (B) WILL LIVE UP TO ALL SPECIFIC
CLAIMS LISTED IN THE RESPONSE; (C) WILL BE SUITABLE FOR THE ORDINARY PURPOSES FOR WHICH
THE HARDWARE IS USED; (D) WILL BE SUITABLE FOR ANY SPECIAL PURPOSES THAT THE DIVISION
HAS RELIED ON CONTRACTOR'S SKILL OR JUDGMENT TO CONSIDER WHEN IT ADVISED THE DIVISION
ABOUT THE HARDWARE IN THE RESPONSE; (E) THE HARDWARE HAS BEEN PROPERLY DESIGNED AND
MANUFACTURED; AND (F) IS FREE OF SIGNIFICANT DEFECTS.
12. SOFTWARE WARRANTY: THE STATE OF UTAH DOES NOT ACCEPT ANY PROCUREMENT ITEM "AS -IS".
CONTRACTOR WARRANTS FOR A PERIOD OF NINETY DAYS FROM THE DATE OF ACCEPTANCE THAT
THE SOFTWARE PORTIONS OF THE GOODS AND CUSTOM DELIVERABLES THAT CONTRACTOR
DIRECTLY OR INDIRECTLY PROVIDES WILL: (A) PERFORM IN ACCORDANCE WITH THE SPECIFIC
CLAIMS PROVIDED IN THE RESPONSE; (B) BE SUITABLE FOR THE ORDINARY PURPOSES FOR WHICH
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SUCH GOODS AND CUSTOM DELIVERABLES ARE USED; (C) BE SUITABLE FOR ANY SPECIAL PURPOSES
THAT THE ELIGIBLE USER HAS RELIED ON CONTRACTOR'S SKILL OR JUDGMENT TO CONSIDER WHEN
IT ADVISED THE STATE ABOUT THE GOODS OR CUSTOM DELIVERABLES; (D) HAVE BEEN PROPERLY
DESIGNED AND MANUFACTURED; AND (E) BE FREE OF SIGNIFICANT DEFECTS. CONTRACTOR SHALL
PROVIDE THE ELIGIBLE USER WITH BUG FIXES, INCLUDING INFORMING THE ELIGIBLE USERS OF ANY
KNOWN SOFTWARE BUGS OR SOFTWARE DEFECTS THAT MAY AFFECT THE STATE'S USE OF THE
SOFTWARE.
13. WARRANTY REMEDIES: Upon breach of warranty, Contractor will repair or replace (at no charge to the Eligible
User) the nonconforming Goods or Custom Deliverables. If the repaired and/or replaced products are inadequate,
Contractor will refund the full amount of any payments that have been made for the failed products. These remedies
are in addition to any other remedies provided by law or equity.
14. UPDATES AND UPGRADES: Contractor grants to the Eligible User a non-exclusive, non -transferable license to
use upgrades and updates provided by Contractor during the Contract Period. Upgrades and updates are subject
to the terms of this Contract. The Eligible User reserves the right to accept updates and upgrades at its discretion
and to determine if such updates comply with the requirements in the Contract scope of work.
15. BUG FIXING AND REMOTE DIAGNOSTICS: Contractor shall use commercially reasonable efforts to provide
work -around solutions or patches to reported software problems. With the Eligible User's prior written authorization,
Contractor may perform remote diagnostics to work on reported problems. If the Eligible User declines remote
diagnostics, Contractor and the Eligible User may agree to on -site technical support, subject to the terms of the
Contract.
16. TECHNICAL SUPPORT AND MAINTENANCE: If technical support and maintenance is required by the Contract,
Contractor will use commercially reasonable efforts to respond to the Eligible User in a reasonable time, and in all
events, in accordance with the specific timeframes detailed in the Contract, when the Eligible User makes technical
support or maintenance requests.
17. PHYSICAL DELIVERY: All non -electronic deliveries will be F.O.B. destination with all transportation and handling
charges paid by Contractor. Contractor is responsible for including any freight charges due by the Eligible User to
Contractor when providing quotes to the Eligible User. Invoices listing freight charges that were not identified in
the quote will be returned to the Contractor to remove such costs. Responsibility and liability for loss or damage
will remain with Contractor until final inspection and acceptance, when responsibility will pass to the Eligible User
except as to latent defects, fraud, and Contractor's warranty obligations.
18. ELECTRONIC DELIVERY: Contractor may electronically deliver any Good or Custom Deliverable to the Eligible
User or provide any Good and Custom Deliverable for download from the Internet, if pre -approved in writing by the
Eligible User. Contractor shall ensure the confidentiality of electronic deliveries in transit. Contractor warrants that
all electronic deliveries will be free of known malware, bugs, Trojan horses, etc.
19. ACCEPTANCE PERIOD: A Good, Custom Deliverable, or Service furnished under this Contract shall function in
accordance with the specifications identified in this Contract and Solicitation. If the Goods and Custom Deliverables
delivered do not conform to the specifications identified in this Contract and Solicitation ("Defects"), the Eligible
User shall within thirty (30) calendar days of the delivery date ("Acceptance Period") notify Contractor in writing of
the Defects. Upon receiving notice, Contractor shall use reasonable efforts to correct the Defects within fourteen
(14) calendar days ("Cure Period"). The Eligible User's acceptance of a Good, Custom Deliverable, or Services
occurs at the end of the Acceptance Period or Cure Period, whichever is later.
If after the Cure Period, a Good, Custom Deliverable, or Service still has Defects, then the Eligible User may, at
its option: (a) declare Contractor to be in breach and terminate this Contract; (b) demand replacement conforming
Goods, Custom Deliverables, or Services from Contractor at no additional cost to the Eligible User; or (c) continue
the Cure Period for an additional time period agreed upon by the Eligible User and Contractor in writing. Contractor
shall pay all costs related to the preparation and shipping of the replacement products. No products shall be
deemed accepted and no invoices shall be paid until acceptance. The warranty period will begin upon the end of
the Acceptance Period.
20. SECURE PROTECTION AND HANDLING OF STATE DATA: If Contractor is given access to State Data, the
protection of State Data shall be an integral part of the business activities of Contractor, and Contractor shall
ensure that there is no inappropriate or unauthorized use of State Data. Contractor shall safeguard the
confidentiality, integrity, and availability of the State Data and comply with the conditions outlined below. The
Eligible User reserves the right to verify Contractor's adherence to the following conditions to ensure they are met:
a. Network Security: Contractor shall maintain network security that, at a minimum, includes: network firewall
provisioning, intrusion detection, and regular third -party penetration testing. Contractor shall maintain network
security and ensure that Contractor network security policies conform to one of the following:
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1) Those standards the State of Utah applies to its own network, found outlined in DTS Policy 5000-0002
Enterprise Information Security Policy;
2) Current standards set forth and maintained by the National Institute of Standards and Technology,
includes those at: http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf; or
3) Any generally recognized comparable standard that Contractor then applies to its own network and pre -
approved by the Eligible User in writing.
b. State Data Security: Contractor shall protect and maintain the security of State Data with protection that is at
least as good as or better than that maintained by the State of Utah which will be provided by an Eligible User
upon Contractor's request (DTS Policy 5000-0002). These security measures included but are not limited to
maintaining secure environments that are patched and up to date with all appropriate security updates as
designated (ex. Microsoft Notification). The Eligible User reserves the right to determine if Contractor's level
of protection meets the Eligible User's security requirements.
c. State Data Transmission: Contractor shall ensure all transmission or exchange of system application data
with the Eligible User and State of Utah and/or any other parties expressly designated by the State of Utah,
shall take place via secure means (ex. HTTPS or FTPS).
d. State Data Storage: All State Data will be stored and maintained in data centers in the United States. No
State Data will be processed on or transferred to any portable or laptop computing device or portable storage
medium, except for devices that are used and kept only at Contractor's United States data centers, unless
such medium is part of the Contractor's designated backup and recovery process.
e. Access: Contractor shall permit its employees and Subcontractors to remotely access non -State Data only
as required to provide technical support.
f. State Data Encryption: Contractor shall store all data provided to Contractor, including State, as well as any
backups made of that data, in encrypted form using no less than 128 bit key and include all data as part of a
designated backup and recovery process.
g. Password Protection: Any portable or laptop computer that has access to the Eligible User's or State of Utah
networks, or stores any Eligible User data shall be equipped with strong and secure password protection.
h. Confidential Information Certification: Contractor shall sign a Confidential Information Certification form
prior to being given access to confidential computerized records.
i. State Data Re -Use: All data exchanged shall be used expressly and solely for the purpose enumerated in
this Contract. No State Data of any kind may be transmitted, exchanged, or provided to other contractors or
third parties except on a case -by -case basis as specifically agreed to in writing by the Eligible User.
j. State Data Destruction: Upon expiration or termination of this Contract, Contractor shall erase, destroy, and
render unreadable all State Data from all non -state computer systems and backups, and certify in writing that
these actions have been completed within thirty (30) days of the expiration or termination of this Contract or
within seven (7) days of the request of the Eligible User, whichever shall come first, unless the Eligible User
provides Contractor with a written directive. The Eligible User's written directive may require that certain data
be preserved in accordance with applicable law.
k. Services Shall Be Performed Within United States: ALL OF THE SERVICES RELATED TO STATE DATA
SHALL BE PERFORMED WITHIN THE BORDERS AND JURISDICTION OF THE UNITED STATES.
I. User Support: Contractor may provide technical user support on a 24/7 basis using a Follow the Sun model,
unless otherwise prohibited by this contract.
21. SECURITY INCIDENT OR DATA BREACH NOTIFICATION: Contractor shall immediately inform the Eligible User
of any Security Incident or Data Breach. It is within the Eligible User's discretion to determine whether any
attempted unauthorized access is a Security Incident or a Data Breach.
a. Incident Response: Contractor may need to communicate with outside parties regarding a Security Incident,
which may include contacting law enforcement and seeking external expertise as mutually agreed upon,
defined by law or contained in this Contract. Discussing Security Incidents with the Eligible User should be
handled on an urgent as -needed basis, as part of Contractor's communication and mitigation processes,
defined by law or contained in this Contract.
b. Security Incident Reporting Requirements: Contractor shall promptly report a Security Incident to the
Eligible User.
c. Breach Reporting Requirements: As required by Utah Code 13-44-202 or any other law, Contractor shall
immediately notify the Eligible User of a Data Breach that affects the security of State Data.
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22. DATA BREACH RESPONSIBILITIES: Contractor shall comply with all applicable laws that require the notification
of individuals in the event of a Data Breach or other events requiring notification(DTS Policy 5000-0002 Enterprise
Information Security Policy). In the event of a Data Breach or other event requiring notification under applicable
law (Utah Code § 13-44-101 thru 301 et al), Contractor shall: (a) cooperate with the Eligible User by sharing
information relevant to the Data Breach; (b) promptly implement necessary remedial measures, if necessary; and
(c) document responsive actions taken related to the Data Breach, including any post -incident review of events
and actions taken to make changes in business practices in relation to the Data Breach. If the Data Breach requires
public notification, all communication shall be coordinated with the Eligible User. Contractor is responsible for all
notification and remedial costs and damages.
23. STATE INFORMATION TECHNOLOGY POLICIES: If Contractor is providing an Executive Branch Agency of the
State of Utah with Goods or Custom Deliverables, Contractor shall comply with policies and procedures that meet
or exceed those DTS follows for internally developed goods and deliverables to minimize security risk, ensure
applicable Utah and Federal laws are followed, address issues with accessibility and mobile device access, and
prevent outages and data breaches within the State of Utah's environment. Contractor shall comply with the
following DTS Policies:
a. DTS Policy 4000-0001, Enterprise Application and Database Deployment Policy: A Contractor
developing software for the State to develop and establish proper controls that will ensure a clear separation
of duties between developing and deploying applications and databases to minimize security risk; to meet due
diligence requirements pursuant to applicable Utah and federal regulations; to enforce contractual obligations;
and to protect the State's electronic information and information technology assets.
b. DTS policy 4000-0002, Enterprise Password Standards Policy: A Contractor developing software for the
State must ensure it complies with the password requirements of the Enterprise Password Standards Policy.
c. DTS Policy 4000-0003, Software Development Life Cycle Policy: A Contractor developing software for the
State shall work with DTS in implementing a Software Development Lifecycle (SDLC) that addresses key
issues of security, accessibility, mobile device access, and standards compliance.
d. DTS Policy 4000-0004, Change Management Policy: Goods or Custom Deliverables furnished or Services
performed by Contractor which have the potential to cause any form of outage or to modify DTS's or the State
of Utah's infrastructure must be reviewed by the DTS Change Management Committee. Any outages or Data
Breaches which are a result of Contractor's failure to comply with DTS instructions and policies will result in
Contractor's liability for all damages resulting from or associated with the outage or Data Breach.
24. CONFIDENTIALITY: This section does not apply to records where disclosure is regulated under Federal or State
laws.
GRAMA applies only to records, therefore if information (other than Non -Public Data, Public Health Information, or
State Data) is disclosed orally by either party which either party wishes to remain confidential, then each party shall
adhere to the following:
Each party will: (a) limit disclosure of any such information to Authorized Persons who have a need to know such
information in connection with the current or contemplated business relationship between the parties to which this
Contract relates, and only for that purpose; (b) advise its Authorized Persons of the proprietary nature of the
information and of the obligations set forth in this Contract and require such Authorized Persons to keep the
information confidential; (c) shall keep all information strictly confidential by using a reasonable degree of care, but
not less than the degree of care used by it in safeguarding its own confidential information; and (d) not disclose
any such information received by it to any third parties, except as otherwise agreed to in writing by the disclosing
party. Each party will notify the other of any misuse or misappropriation of such information that comes to said
party's attention.
This duty of confidentiality shall be ongoing and survive the Contract Period.
25. Reserved
26. OWNERSHIP IN INTELLECTUAL PROPERTY: The Parties recognize that each has no right, title, or interest,
proprietary or otherwise, in or to the name, logo, or intellectual property owned or licensed by the other. The Parties
shall not, without the prior written consent of the other or as authorized in this Contract, use the name, logo, or
intellectual property owned or licensed by the other.
27. OWNERSHIP IN CUSTOM DELIVERABLES: Contractor warrants, represents and conveys full ownership, clear
title free of all liens and encumbrances to any Custom Deliverable. Contractor conveys the ownership in Custom
Deliverables as defined in this Attachment A to the Eligible User. All intellectual property rights, title and interest in
the Custom Deliverables shall transfer to the Eligible User, subject to the following:
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a. Contractor has received payment for the Custom Deliverables,
b. Each party will retain all rights to Background IP, even if embedded in the Custom Deliverables.
c. Custom Deliverables, excluding Contractor's Background IP may not be marketed or distributed without
written approval by the Eligible User.
Contractor shall grant to the Eligible User a perpetual, irrevocable, royalty -free license to use Contractor's
Background IP as defined above, solely for the Eligible User to use the Custom Deliverables.
28. LICENSE FOR GOODS: For the Goods delivered that include Contractor's scripts and code and are not
considered Custom Deliverables, Contractor grants the Eligible User a non-exclusive, non -transferable,
irrevocable, perpetual right to use, copy, and, without the right to sublicense, for the Eligible User's internal
business operation under this Contract
29. OWNERSHIP, PROTECTION, AND USE OF RECORDS: The Eligible User shall own exclusive title to all
information and data gathered, reports developed, and conclusions reached by the Eligible User in performance
of this Contract. Contractor may not use, except in meeting its obligations under this Contract, information
gathered, reports developed, or conclusions reached by the Eligible User in performance of this Contract without
the express written consent of the Eligible User.
30. OWNERSHIP, PROTECTION, AND USE OF DATA: The Eligible User shall own and retain unlimited rights to use,
disclose, or duplicate all information and data (copyrighted or otherwise) developed, derived, documented, stored,
or furnished by Contractor under this Contract. Contractor, and any Subcontractors under its control, expressly
agrees not to use Non -Public Data without prior written permission from the Eligible User.
31. OWNERSHIP, PROTECTION, AND USE OF CONFIDENTIAL FEDERAL, UTAH, OR LOCAL GOVERNMENT
INTERNAL BUSINESS PROCESSES AND PROCEDURES: In the event that the Eligible User provides
Contractor with confidential federal or state business processes, policies, procedures, or practices, pursuant to this
Contract, Contractor shall hold such information in confidence, in accordance with applicable laws and industry
standards of confidentiality, and not to copy, reproduce, sell, assign, license, market, transfer, or otherwise dispose
of, give, or disclose such information to third parties or use such information for any purpose whatsoever other
than the performance of this Contract. The improper use or disclosure by any party of protected internal federal or
state business processes, policies, procedures, or practices is prohibited. Confidential federal or state business
processes, policies, procedures, or practices shall not be divulged by Contractor or its Subcontractors, except for
the performance of this Contract, unless prior written consent has been obtained in advance from the Eligible User.
32. OWNERSHIP, PROTECTION, AND RETURN OF DOCUMENTS AND DATA UPON CONTRACT TERMINATION
OR COMPLETION: All documents and data pertaining to work required by this Contract will be the property of the
Eligible User, and must be delivered to the Eligible User within thirty (30) working days after termination or
expiration of this Contract, and without restriction or limitation to their future use. Any State Data returned under
this section must either be in the format as originally provided, in a format that is readily usable by the Eligible
User, or formatted in a way that it can be used. The costs for returning documents and data to the Eligible User
are included in this Contract.
33. ORDERING AND INVOICING: For State of Utah Executive Branch Agencies, a purchase order must be sent to
the Contractor by DTS prior to any work being initiated, product shipped, or invoices cut under this contract. All
orders will be shipped promptly in accordance with the delivery schedule. Contractor will promptly submit invoices
(within 30 days after shipment or delivery of goods or services, with the exclusion of end of fiscal year invoicing for
Executive Branch Agencies) to the appropriate Eligible User. The contract number shall be listed on all invoices,
freight tickets, and correspondence relating to an order under this Contract. The prices paid by the Eligible User
shall not exceed prices listed in this Contract. The Eligible User shall adjust or return any invoice reflecting incorrect
pricing. For Executive Branch Agencies, Contractor must send all invoices no later than July 10, or the last working
day prior, to the State for all work completed or items received during the State's fiscal year of July 1-June 30.
34. PAYMENT AND NOTICE:
a. Payments will be made within thirty (30) days from the date a correct invoice is received. For Executive Branch
Agencies, a correct invoice will contain the contract and purchase order numbers as indicated in Section 33.
After sixty (60) days from the date a correct invoice is received by the appropriate State official, the Contractor
may assess interest on overdue, undisputed account charges up to the interest rate paid by the IRS on refund
claims, plus two percent, computed in accordance with Section 15-6-3, Utah Prompt Payment Act of Utah
Code, as amended.
b. The contract costs may be changed only by written amendment. All payments to Contractor will be remitted
by mail, by electronic funds transfer, or by the Eligible User's purchasing card (major credit card). The Division
will not pay electronic payment fees of any kind.
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c. Any written protest of the final contract payment must filed with the Eligible User within ten (10) working days
of receipt of final payment. If no protest is received, the Eligible User, the Division, and the State of Utah are
released from all claims and all liability to Contractor for fees and costs pursuant to this Contract.
d. Overpayment: If during or subsequent to the Contract an audit determines that payments were incorrectly
reported or paid by the Eligible User to Contractor, then Contractor shall, upon written request, immediately
refund to the Eligible User any such overpayments.
35. CONTRACTOR'S INSURANCE RESPONSIBILITY: The Contractor shall maintain the following insurance
coverage:
a. Workers' compensation insurance during the term of this Contract for all its employees and any Subcontractor
employees related to this Contract. Workers' compensation insurance shall cover full liability under the
workers' compensation laws of the jurisdiction in which the work is performed at the statutory limits required
by said jurisdiction.
b. Commercial general liability [CGL] insurance from an insurance company authorized to do business in the
State of Utah. The limits of the CGL insurance policy will be no less than one million dollars ($1,000,000.00)
per person per occurrence and three million dollars ($3,000,000.00) aggregate.
c. Commercial automobile liability [CAL] insurance from an insurance company authorized to do business in the
State of Utah. The CAL insurance policy must cover bodily injury and property damage liability and be
applicable to all vehicles used in your performance of Services under this Agreement whether owned, non -
owned, leased, or hired. The minimum liability limit must be $1 million per occurrence, combined single limit.
The CAL insurance policy is required if Contractor will use a vehicle in the performance of this Contract.
d. Other insurance policies specified in the Solicitation.
Certificate of Insurance, showing up-to-date coverage, shall be on file with the State before the Contract may
commence. Failure to provide proof of insurance as required will be deemed a material breach of this Contract.
Contractor's failure to maintain this insurance requirement for the Contract Period will be grounds for
immediate termination.
36. ADDITIONAL INSURANCE REQUIREMENTS:
a. Professional liability insurance in the amount as described in the Solicitation for this Contract, if applicable.
b. Any other insurance policies described or referenced in the Solicitation for this Contract.
c. Any type of insurance or any increase of limits of liability not described in this Contract which the Contractor
requires for its own protection or on account of any federal, Utah, or local statute, rule, or regulation shall be
its own responsibility, and shall be provided at Contractor's own expense.
d. The carrying of insurance required by this Contract shall not be interpreted as relieving the Contractor of any
other responsibility or liability under this Contract or any applicable law, statute, rule, regulation, or order.
Contractor must provide proof of the above listed policies within thirty (30) days of being awarded this Contract.
37. ASSIGNMENT/SUBCONTRACT: Contractor will not assign, sell, transfer, subcontractor sublet rights, or delegate
responsibilities under this Contract, in whole or in part, without the prior written approval of the Division.
38. TERMINATION: This Contract may be terminated for cause by either party upon written notice being given by the
other party. The party in violation will be given ten (10) calendar days, or as otherwise agreed upon in writing, after
notification to correct and cease the violations, after which this Contract may be terminated for cause immediately
and subject to the remedies below. This Contract may also be terminated without cause (for convenience) by the
Division, upon thirty (30) calendar days written termination notice being given to the Contractor. The Division and
the Contractor may agree to terminate this Contract, in whole or in part, at any time by mutual written agreement.
Contractor shall be compensated for the Services properly performed and goods properly provided pursuant to
this Contract up to the effective date of termination as stated in the notice. Contractor agrees that in the event of
termination for cause or without cause, Contractor's sole remedy and monetary recovery from the Division, the
Eligible User, or the State of Utah is limited to payment for all work properly performed as authorized under this
Contract up to the date of termination, and any reasonable pro -rated monies that may be owed as a result of
Contractor having to terminate other contracts necessarily and appropriately entered into by Contractor pursuant
to this Contract, after receipt and verification of documented evidence of those terminated contracts.
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39. TERMINATION UPON DEFAULT: In the event this Contract is terminated for default by Contractor, the Division
may procure Goods, Custom Deliverables, or Services similar to those terminated, and Contractor shall be liable
to the Division for any and all cover costs and damages.
40. SUSPENSION OF WORK: The Division may suspend Contractor's responsibilities under this Contract without
terminating this Contract by issuing a written notice. Contractor's responsibilities may then be reinstated upon
written notice from the Division.
41. DEFAULT AND REMEDIES: Any of the following events will constitute cause for the Division to declare Contractor
in default of this Contract for nonperformance of contractual requirements or a material breach of any term or
condition of this Contract. The Division will issue a written notice of default and may provide a fourteen (14) day
period in which Contractor will have an opportunity to cure. Time allowed for cure will not diminish or eliminate
Contractor's liability for damages. If the default remains, after Contractor has been provided the opportunity to
cure, the Division may exercise any remedy provided by law; terminate this Contract and any related contracts or
portions thereof; (c) impose liquidated damages, if liquidated damages are listed in the contract; (d) suspend or
debar Contractor from receiving future solicitations; or (e) demand a full refund of the Goods, Custom Deliverables,
or Services furnished by Contractor that are defective or Services that were inadequately performed.
42. FORCE MAJEURE: Neither party to this Contract will be held responsible for delay or default caused by fire, riot,
acts of God, or war which is beyond that party's reasonable control. The Division may immediately terminate this
Contract after determining such delay will reasonably prevent successful performance of this Contract.
43. CONFLICT OF TERMS: Contractor terms and conditions must be attached to this Contract. No other terms and
conditions will apply to this Contract, including terms listed or referenced on a Contractor's website, quotation/sales
order, purchase orders, or invoice. In the event of any conflict in the contract terms and conditions, the order of
precedence is: (a) This Attachment A; (b) the Division's Contract Signature Page(s); (c) State of Utah's Additional
Terms and Conditions, if any; and (d) Contractor Terms and Conditions, if any. Attachment A will be given
precedence over any provisions including, limitation of liability, indemnification, standard of care, insurance, or
warranty, and will not be nullified by or exception created by more specific terms elsewhere in this Contract.
44. SURVIVORSHIP: The contractual provisions that will remain in effect after expiration or termination of this Contract
are: (a) Contract Jurisdiction, Choice of Law, and Venue; (b) Secure Protection and Handling of State Data; (c)
Data Breach Responsibilities; (d) Ownership in Custom Deliverables; (e) Ownership, Protection, and Use of
Records, including Residuals of such records; and (f) Ownership, Protection, and Use of Confidential Federal,
Utah, or Local Government Internal Business Processes, including residuals of such confidential business
processes; (g) Ownership, Protection, and Return of Documents and Data Upon Contract Termination or
Completion; (h) Confidentiality; (i) Conflict of Terms; and Q) any other terms that by their nature would survive the
expiration, completion, or termination of this contract.
45. RELEVANT STATE AND FEDERAL LAWS
a. Conflict of Interest with State Employees: Contractor shall comply and cooperate in good faith with all
conflict of interest and ethic laws, including Section 63G-6a-2404, Utah Procurement Code, as amended.
b. Procurement Ethics: Contractor understands that a person who is interested in any way in the sale of any
supplies, services, products, construction, or insurance to the State of Utah is violating the law if the person
gives or offers to give any compensation, gratuity, contribution, loan, or reward, or any promise thereof to any
person acting as a procurement officer on behalf of the State of Utah, or who in any official capacity participates
in the procurement of such supplies, services, products, construction, or insurance, whether it is given for their
own use or for the use or benefit of any other person or organization (63G-6a-2304.5, Utah Procurement
Code, as amended).
c. Contact Information: Per Utah Code §§63G-6a-110 and 35A-2-203, the State shall make Contractor's
contact information available to the State of Utah Department of Workforce Services. The State of Utah
Department of Workforce Services may post information regarding Contractor's job vacancies on its website.
d. Employment Practices: Contractor shall abide by the following employment laws: (i)Title VI and VII of the
Civil Rights Act of 1964 (42 U.S.C. 2000e) which prohibits discrimination against any employee or applicant
for employment or any applicant or recipient of services, on the basis of race, religion, color, or national origin;
(ii) Executive Order No. 11246, as amended, which prohibits discrimination on the basis of sex; (iii) 45 CFR
90 which prohibits discrimination on the basis of age; (iv) Section 504 of the Rehabilitation Act of 1973, or the
Americans with Disabilities Act of 1990 which prohibits discrimination on the basis of disabilities; and (v) Utah's
Executive Order 2019-1, dated February 5, 2019, which prohibits unlawful harassment in the work place.
Contractor shall abide by any other laws, regulations, or orders that prohibit the discrimination of any kind of
any of Contractor's employees.
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e. Compliance with Accessibility Standards: Contractor shall comply with the Accessibility Standards of
Section 508 Amendment to the Rehabilitation Act of 1973. Contractor shall comply with Utah Administrative
Code R895-14-3(3), which states that contractors developing new websites or applications for State agencies
are required to meet accessibility guidelines subject to rule R895 and correct any items that do not meet these
guidelines at no cost to the agency. Contractor shall comply with Utah Administrative Code R895-14-4(2),
which states that contractors proposing IT products and services shall provide Voluntary Product Accessibility
Template® (VPATTM) documents.
46. RIGHT TO MONITOR PERFORMANCE AND AUDIT
a. Audit: Contractor shall, upon written notification permit the Division, or a third party designated by the Division,
to perform an assessment, audit, examination, or review of all of Contractor's sites and environments -
including physical, technical, and virtual sites and environments - in order to confirm Contractor's compliance
with this Contract; associated scopes of work; and applicable laws, regulations, and industry standards.
Contractor shall fully cooperate with such assessment by providing access to knowledgeable personnel;
physical premises; records; technical and physical infrastructures; and any other person, place, or object which
may assist the Division or its designee in completing such assessment. Upon request, Contractor shall provide
the results of any audit performed by or on behalf of Contractor that would assist the Division or its designee
in confirming Contractor's compliance with this Contract; associated scopes of work; and applicable laws,
regulations, and industry standards.
b. Monitor Performance: The Division and Eligible Users reserve the right to monitor Contractor's performance,
perform plan checks, plan reviews, other reviews, and/or comment upon the Services of Contractor. This
includes Contractor's Subcontractors, if any. Results of any evaluation may be made available to the
Contractor upon Contractor's request.
47. TIME IS OF THE ESSENCE: The Services shall be completed and Goods and Custom Deliverables delivered by
any applicable deadline stated in this Contract. Time is of the essence.
48. STANDARD OF CARE: For Services of Contractor which require licenses and certifications, such Services shall
be performed in accordance with the standard of care exercised by licensed members of their respective
professions having substantial experience providing similar services which similarities include the type, magnitude,
and complexity of the Services that are the subject of this Contract.
49. LARGE VOLUME DISCOUNT PRICING: Eligible Users may seek to obtain additional volume discount pricing for
large orders provided Contractor is willing to offer additional discounts for large volume orders. No amendment to
this Contract is necessary for Contractor to offer discount pricing to an Eligible User for large volume purchases.
50. ELIGIBLE USER PARTICIPATION: Participation under this Contract by Eligible Users is voluntarily determined
by each Eligible User. Contractor agrees to supply each Eligible User with Goods based upon the same terms,
conditions and prices of this Contract.
51. INDIVIDUAL CUSTOMERS: Each Eligible User that purchases Goods from this Contract will be treated as if they
were individual customers. Each Eligible User will be responsible to follow the terms and conditions of this Contract.
Contractor agrees that each Eligible User will be responsible for their own charges, fees, and liabilities. Contractor
shall apply the charges to each Eligible User individually. The Division is not responsible for any unpaid invoice.
52. QUANTITY ESTIMATES: The Division does not guarantee any purchase amount under this Contract. Estimated
quantities are for Solicitation purposes only and are not to be construed as a guarantee.
53. ORDERING: Orders will be placed by the using Eligible User directly with Contractor. All orders will be shipped
promptly in accordance with the terms of this Contract.
54. REPORTS AND FEES:
a. Administrative Fee: Contractor agrees to provide a quarterly administrative fee to the State in the form of a
check, EFT or online payment through the Division's Automated Vendor Usage Management System. Checks
will be payable to the "State of Utah Division of Purchasing" and will be sent to State of Utah, Division of
Purchasing, Attn: Cooperative Contracts, PO Box 141061, Salt Lake City, UT 84114-1061. The Administrative
Fee will be the amount listed in the Solicitation and will apply to all purchases (net of any returns, credits, or
adjustments) made under this Contract.
b. Quarterly Reports: Contractor agrees to provide a quarterly utilization report, reflecting net sales to the State
during the associated fee period. The report will show the dollar volume of purchases by each Eligible User.
The quarterly report will be provided in secure electronic format through the Division's Automated Vendor
Usage Management System found at: https://statecontracts.utah.gov/Vendor.
c. Report Schedule: Quarterly utilization reports shall be made in accordance with the following schedule:
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Period End
Reports Due
March 31
April 30
June 30
July 31
September 30
October 31
December 31
January 31
d. Fee Payment: After the Division receives the quarterly utilization report it will send Contractor an invoice for
the total quarterly administrative fee owed to the Division. Contractor shall pay the quarterly administrative fee
within thirty (30) days from receipt of invoice.
55. Timely Reports and Fees: If the quarterly administrative fee is not paid by thirty (30) days of receipt of invoice or
quarterly utilization reports are not received by the report due date, then Contractor will be in material breach of
this Contract.
(Revision Date: 23 April 2020)
STATE OF VERMONT
STANDARD RIDER
TO SOFTWARE LICENSES AND END USER LICENSE AGREEMENTS
1. MODIFICATIONS TO PROVIDER DOCUMENTS. The State and the Software Publisher/Services Provider ("Provider')
specifically agree that, for purposes of execution of the Provider Documents and this Rider (collectively, "Agreement"), and
notwithstanding any language to the contrary in Provider Documents, the Provider Documents are hereby modified and
superseded as follows:
(a) Any requirement that the State defend or indemnify any party or otherwise be liable for the expenses or reimbursement,
including attorneys' fees, collection costs or license verification costs of any party, is hereby deleted.
(b) Any requirement that the State agree to binding arbitration or otherwise waive the State's right to a jury trial is hereby
deleted.
(c) Provider Documents shall be governed by and construed in accordance with the laws of the State of Vermont and that any
action or proceeding brought by either the State or Provider in connection with this Agreement shall be brought and enforced
in the Superior Court of the State of Vermont, Civil Division, Washington Unit.
(d) Nothing in the Provider Documents shall constitute an implied or deemed waiver of the immunities, defenses, rights or
actions arising out of State's sovereign status or under the Eleventh Amendment to the United States Constitution.
(e) Any provision which limits the time within which an action may be brought is hereby deleted.
(f) Any obligations of the State to maintain the confidentiality of information shall be subject to the laws of the State of
Vermont.
(g) State purchases must be invoiced tax free. An exemption certificate will be furnished upon request covering otherwise
taxable items.
(h) To the extent Provider Documents permit access to State systems for the purpose of verifying State compliance with the
terms of the Provider Documents, then, in lieu of any such right, the following shall apply: upon request and not more
frequently than annually, the State agrees to provide Provider with a certified report concerning the State's use of any software
licensed for State use pursuant this Agreement. Provider agrees that any non-compliance indicated by the report shall not
constitute infringement of Provider's intellectual property rights, and that settlement payment mutually agreeable to the parties
shall be the exclusive remedy for any such non-compliance. This clause shall not be interpreted to provide an independent
right to access State systems where there is no such right expressed in Provider Documents.
(i) Any time software is delivered to the State, whether delivered via electronic media or the internet, to Provider's best
knowledge following due inquiry, no portion of such software or the media upon which it is stored or delivered will have any
type of software routine or other element which is designed to facilitate unauthorized access to or intrusion upon; or
unrequested disabling or erasure of; or unauthorized interference with the operation of any hardware, software, data or
peripheral equipment of or utilized by the State.
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0) Limitations or exclusions of liability shall not apply to State claims arising out of (i) Provider's confidentiality obligations
(ii) Provider's obligations to defend and indemnify the State; (iii) personal injury or damage to real or tangible personal
property; or (iv) gross negligence, fraud or intentional misconduct. Limits of liability for State claims shall not be construed
to limit Provider's liability to any third party for any claims a third party may have directly against Provider which may arise
out of Provider's acts or omissions in the performance of this Agreement.
(k) To the extent Provider is a "data collector" for purposes of 9 V.S.A. §2430, it shall comply with all applicable requirements
of 9 V.S.A. §2435.
(1) Records Available for Audit: Provider shall maintain all records pertaining to performance under this
Agreement. "Records" means any written or recorded information, regardless of physical form or characteristics, which is
produced or acquired by Provider in the performance of this agreement. Records produced or acquired in a machine readable
electronic format shall be maintained in that format. The records described shall be made available at reasonable times during
the period of this Agreement and for three years thereafter or for any period required by law for inspection by any authorized
representatives of the State or Federal Government. If any litigation, claim, or audit is started before the expiration of the
three-year period, the records shall be retained until all litigation, claims or audit findings involving the records have been
resolved.
(m) Fair Employment Practices and Americans with Disabilities Act: Provider agrees to comply with the requirement of Title
21 V.S.A. Chapter 5, Subchapter 6, relating to fair employment practices, to the full extent applicable. Provider shall also
ensure, to the full extent required by the Americans with Disabilities Act of 1990, as amended, that qualified individuals with
disabilities receive equitable access to the services, programs, and activities provided by Provider under this Agreement.
Provider further agrees to include this provision in all subcontracts for services performed pursuant to this Agreement in the
State of Vermont.
(n) The State may set off any sums which Provider owes the State against any sums due Provider under this Agreement;
provided, however, that any set off of amounts due the State of Vermont as taxes shall be in accordance with the procedures
set forth in 32 V.S.A. § 3113.
(o) Taxes Due to the State: Provider certifies under the pains and penalties of perjury that, as of the date the Agreement is
signed, Provider is in good standing with respect to, or in full compliance with, a plan to pay any and all taxes due the State
of Vermont.
(p) No Gifts or Gratuities: Provider shall not give title or possession of anything of substantial value (including property,
currency, travel and/or education programs) to any officer or employee of the State during the term of this Agreement.
(q) Certification Regarding Debarment: Provider certifies under pains and penalties of perjury that, as of the date that this
Agreement is signed, neither Provider nor Provider's principals (officers, directors, owners, or partners) are presently
debarred, suspended, proposed for debarment, declared ineligible or excluded from participation in federal programs, or
programs supported in whole or in part by federal funds. Provider further certifies under pains and penalties of perjury that,
as of the date that this Agreement is signed, Provider is not presently debarred, suspended, nor named on the State's
debarment list at: http://b2s.vermont.2oy/purchasing/debarment
(r) Any provision regarding automatic renewal shall be waived and shall have no force and effect.
(s) The State retains full right and title to data provided by State and any data derived therefrom, including metadata
(collectively, the "State Data"). Provider shall not collect, access, or use user -specific State Data except as strictly necessary
to provide licensed service to State. No information regarding State's use of the licensed service may be disclosed, provided,
rented or sold to any third party for any reason unless required by law or regulation or by an order of a court of competent
jurisdiction. This obligation shall extend beyond the term of this Agreement in perpetuity. Provider shall not use any
information collected in connection with this Agreement, including the State Data, for any purpose other than fulfilling its
obligations under this Agreement. At no time may any State Data or processes which either belong to State, or are intended
for State's exclusive use, be copied, disclosed, or retained by Provider for subsequent use in any transaction that does not
include State.
For purposes of this Standard State Rider:
"State" shall mean the State of Vermont, acting through one or more of its agencies, departments, boards, commissions or
other entities empowered to enter into contracts on behalf of the State.
"Provider Documents" shall mean one or more document, agreement or other instrument required by Provider in connection
with the performance of the products and services being procured by the State, regardless of format, including the license
agreement, end user license agreement or similar document to which this Rider is attached, any hyperlinks to documents
contained in the Provider Documents and any other paper or "shrinkwrap," "clickwrap" or other electronic version thereof.
2. ORDER OF PRECEDENCE. Notwithstanding any other provision or other unilateral license terms which may be issued by
Provider after the dated date of this Rider, and irrespective of whether any such provisions have been proposed prior to or
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after the issuance of an order for the products and services being purchased by the State, as applicable, the components of
which are licensed under the Provider Documents, or the fact that such other agreement may be affixed to or accompany the
products and services being purchased by the State, as applicable, upon delivery ("shrink wrap"), the terms and conditions set
forth herein shall supersede and govern licensing and delivery of all products and services hereunder. This Rider shall in all
cases take precedence over the Provider Documents and any ambiguity, conflict or inconsistency in the Provider Documents
shall be resolved in accordance with this order of precedence.
I HEREBY ACCEPT THESE TERMS AND CONDITIONS:
SIGNATURE
PRINT NAME
TITLE
COMPANY NAME
DATE
Attachment C - Page 1 of 5
ATTACHMENT C: STANDARD STATE PROVISIONS
FOR CONTRACTS AND GRANTS
REVISED DECEMBER 15, 2017
1. Definitions: For purposes of this Attachment, "Party" shall mean the Contractor, Grantee or
Subrecipient, with whom the State of Vermont is executing this Agreement and consistent with the form
of the Agreement. "Agreement" shall mean the specific contract or grant to which this form is attached.
2. Entire Agreement: This Agreement, whether in the form of a contract, State -funded grant, or
Federally -funded grant, represents the entire agreement between the parties on the subject matter. All
prior agreements, representations, statements, negotiations, and understandings shall have no effect.
3. Governing Law, Jurisdiction and Venue; No Waiver of Jury Trial: This Agreement will be
governed by the laws of the State of Vermont. Any action or proceeding brought by either the State or the
Party in connection with this Agreement shall be brought and enforced in the Superior Court of the State
of Vermont, Civil Division, Washington Unit. The Party irrevocably submits to the jurisdiction of this
court for any action or proceeding regarding this Agreement. The Party agrees that it must first exhaust
any applicable administrative remedies with respect to any cause of action that it may have against the
State with regard to its performance under this Agreement. Party agrees that the State shall not be
required to submit to binding arbitration or waive its right to a jury trial.
4. Sovereign Immunity: The State reserves all immunities, defenses, rights or actions arising out of the
State's sovereign status or under the Eleventh Amendment to the United States Constitution. No waiver
of the State's immunities, defenses, rights or actions shall be implied or otherwise deemed to exist by
reason of the State's entry into this Agreement.
5. No Employee Benefits For Party: The Party understands that the State will not provide any individual
retirement benefits, group life insurance, group health and dental insurance, vacation or sick leave,
workers compensation or other benefits or services available to State employees, nor will the State
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withhold any state or Federal taxes except as required under applicable tax laws, which shall be
determined in advance of execution of the Agreement. The Party understands that all tax returns required
by the Internal Revenue Code and the State of Vermont, including but not limited to income, withholding,
sales and use, and rooms and meals, must be filed by the Party, and information as to Agreement income
will be provided by the State of Vermont to the Internal Revenue Service and the Vermont Department of
Taxes.
6. Independence: The Party will act in an independent capacity and not as officers or employees of the
State.
7. Defense and Indemnity: The Party shall defend the State and its officers and employees against all
third party claims or suits arising in whole or in part from any act or omission of the Party or of any agent
of the Party in connection with the performance of this Agreement. The State shall notify the Party in the
event of any such claim or suit, and the Party shall immediately retain counsel and otherwise provide a
complete defense against the entire claim or suit. The State retains the right to participate at its own
expense in the defense of any claim. The State shall have the right to approve all proposed settlements of
such claims or suits.
After a final judgment or settlement, the Party may request recoupment of specific defense costs and may
file suit in Washington Superior Court requesting recoupment. The Party shall be entitled to recoup costs
only upon a showing that such costs were entirely unrelated to the defense of any claim arising from an
act or omission of the Party in connection with the performance of this Agreement.
The Party shall indemnify the State and its officers and employees if the State, its officers or employees
become legally obligated to pay any damages or losses arising from any act or omission of the Party or an
agent of the Party in connection with the performance of this Agreement.
Notwithstanding any contrary language anywhere, in no event shall the terms of this Agreement or any
document furnished by the Party in connection with its performance under this Agreement obligate the
State to (1) defend or indemnify the Party or any third party, or (2) otherwise be liable for the expenses or
reimbursement, including attorneys' fees, collection costs or other costs of the Party or any third party.
8. Insurance: Before commencing work on this Agreement the Party must provide certificates of
insurance to show that the following minimum coverages are in effect. It is the responsibility of the Party
to maintain current certificates of insurance on file with the State through the term of this Agreement. No
warranty is made that the coverages and limits listed Attachment C - Page 2 of s
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herein are adequate to cover and protect the interests of the Party for the Party's operations. These are
solely minimums that have been established to protect the interests of the State.
Workers Compensation: With respect to all operations performed, the Party shall carry workers'
compensation insurance in accordance with the laws of the State of Vermont. Vermont will accept an out-
of-state employer's workers' compensation coverage while operating in Vermont provided that the
insurance carrier is licensed to write insurance in Vermont and an amendatory endorsement is added to
the policy adding Vermont for coverage purposes. Otherwise, the party shall secure a Vermont workers'
compensation policy, if necessary to comply with Vermont law.
General Liability and Property Damage: With respect to all operations performed under this Agreement,
the Party shall carry general liability insurance having all major divisions of coverage including, but not
limited to:
Premises - Operations
Products and Completed Operations
Personal Injury Liability
Contractual Liability
The policy shall be on an occurrence form and limits shall not be less than:
$1,000,000 Each Occurrence
$2,000,000 General Aggregate
$1,000,000 Products/Completed Operations Aggregate
$1,000,000 Personal & Advertising Injury
Automotive Liability: The Party shall carry automotive liability insurance covering all motor vehicles,
including hired and non -owned coverage, used in connection with the Agreement. Limits of coverage
shall not be less than $500,000 combined single limit. If performance of this Agreement involves
construction, or the transport of persons or hazardous materials, limits of coverage shall not be less than
$1,000,000 combined single limit.
Additional Insured. The General Liability and Property Damage coverages required for performance of
this Agreement shall include the State of Vermont and its agencies, departments, officers and employees
as Additional Insureds. If performance of this Agreement involves construction, or the transport of
persons or hazardous materials, then the required Automotive Liability coverage shall include the State of
Vermont and its agencies, departments, officers and employees as Additional Insureds. Coverage shall be
primary and non-contributory with any other insurance and self-insurance.
Notice of Cancellation or Change. There shall be no cancellation, change, potential exhaustion of
aggregate limits or non -renewal of insurance coverage(s) without thirty (30) days written prior written
notice to the State.
9. Reliance by the State on Representations: All payments by the State under this Agreement will be
made in reliance upon the accuracy of all representations made by the Party in accordance with this
Agreement, including but not limited to bills, invoices, progress reports and other proofs of work.
10. False Claims Act: The Party acknowledges that it is subject to the Vermont False Claims Act as set
forth in 32 V.S.A. § 630 et seq. If the Party violates the Vermont False Claims Act it shall be liable to the
State for civil penalties, treble damages and the costs of the investigation and prosecution of such
violation, including attorney's fees, except as the same may be reduced by a court of competent
jurisdiction. The Party's liability to the State under the False Claims Act shall not be limited
notwithstanding any agreement of the State to otherwise limit Party's liability.
11. Whistleblower Protections: The Parry shall not discriminate or retaliate against one of its employees
or agents for disclosing information concerning a violation of law, fraud, waste, abuse of authority or acts
threatening health or safety, including but not limited to allegations concerning the False Claims Act.
Further, the Parry shall not require such employees or agents to forego monetary awards as a result of
such disclosures, nor should they be required to report misconduct to the Party or its agents prior to
reporting to any governmental entity and/or the public.
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12. Location of State Data: No State data received, obtained, or generated by the Party in connection
with performance under this Agreement shall be processed, transmitted, stored, or transferred by any
means outside the continental United States, except with the express written permission of the State.
13. Records Available for Audit: The Party shall maintain all records pertaining to performance under
this agreement. "Records" means any written or recorded information, regardless of physical form or
characteristics, which is produced or Attachment C - Page 3 of 5
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acquired by the Party in the performance of this agreement. Records produced or acquired in a machine
readable electronic format shall be maintained in that format. The records described shall be made
available at reasonable times during the period of the Agreement and for three years thereafter or for any
period required by law for inspection by any authorized representatives of the State or Federal
Government. If any litigation, claim, or audit is started before the expiration of the three-year period, the
records shall be retained until all litigation, claims or audit findings involving the records have been
resolved.
14. Fair Employment Practices and Americans with Disabilities Act: Party agrees to comply with the
requirement of 21 V.S.A. Chapter 5, Subchapter 6, relating to fair employment practices, to the full extent
applicable. Party shall also ensure, to the full extent required by the Americans with Disabilities Act of
1990, as amended, that qualified individuals with disabilities receive equitable access to the services,
programs, and activities provided by the Party under this Agreement.
15. Set Off: The State may set off any sums which the Party owes the State against any sums due the
Party under this Agreement; provided, however, that any set off of amounts due the State of Vermont as
taxes shall be in accordance with the procedures more specifically provided hereinafter.
16. Taxes Due to the State:
A. Party understands and acknowledges responsibility, if applicable, for compliance with State
tax laws, including income tax withholding for employees performing services within the State, payment
of use tax on property used within the State, corporate and/or personal income tax on income earned
within the State.
B. Party certifies under the pains and penalties of perjury that, as of the date this Agreement is
signed, the Party is in good standing with respect to, or in full compliance with, a plan to pay any and all
taxes due the State of Vermont.
C. Party understands that final payment under this Agreement may be withheld if the
Commissioner of Taxes determines that the Party is not in good standing with respect to or in full
compliance with a plan to pay any and all taxes due to the State of Vermont.
D. Party also understands the State may set off taxes (and related penalties, interest and fees) due
to the State of Vermont, but only if the Party has failed to make an appeal within the time allowed by law,
or an appeal has been taken and finally determined and the Party has no further legal recourse to contest
the amounts due.
17. Taxation of Purchases: All State purchases must be invoiced tax free. An exemption certificate will
be furnished upon request with respect to otherwise taxable items.
18. Child Support: (Only applicable if the Party is a natural person, not a corporation or partnership.)
Party states that, as of the date this Agreement is signed, he/she:
A. is not under any obligation to pay child support; or
B. is under such an obligation and is in good standing with respect to that obligation; or
C. has agreed to a payment plan with the Vermont Office of Child Support Services and is in full
compliance with that plan.
Party makes this statement with regard to support owed to any and all children residing in Vermont. In
addition, if the Party is a resident of Vermont, Party makes this statement with regard to support owed to
any and all children residing in any other state or territory of the United States.
19. Sub -Agreements: Party shall not assign, subcontract or subgrant the performance of this Agreement
or any portion thereof to any other Party without the prior written approval of the State. Party shall be
responsible and liable to the State for all acts or omissions of subcontractors and any other person
performing work under this Agreement pursuant to an agreement with Party or any subcontractor.
In the case this Agreement is a contract with a total cost in excess of $250,000, the Party shall provide to
the State a list of all proposed subcontractors and subcontractors' subcontractors, together with the
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identity of those subcontractors' workers compensation insurance providers, and additional required or
requested information, as applicable, in accordance with Section 32 of The Vermont Recovery and
Reinvestment Act of 2009 (Act No. 54).
Party shall include the following provisions of this Attachment C in all subcontracts for work performed
solely for the State of Vermont and subcontracts for work performed in the State of Vermont: Section 10
("False Claims Act"); Section 11 ("Whistleblower Protections"); Section 12 ("Location of State Data");
Section 14 ("Fair Employment Practices and Attachment C - Page 4 of s
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4.D.b
Americans with Disabilities Act"); Section 16 ("Taxes Due the State"); Section 18 ("Child Support");
Section 20 ("No Gifts or Gratuities"); Section 22 ("Certification Regarding Debarment"); Section 30
("State Facilities"); and Section 32.A ("Certification Regarding Use of State Funds").
20. No Gifts or Gratuities: Party shall not give title or possession of anything of substantial value
(including property, currency, travel and/or education programs) to any officer or employee of the State
during the term of this Agreement.
21. Copies: Party shall use reasonable best efforts to ensure that all written reports prepared under this
Agreement are printed using both sides of the paper.
22. Certification Regarding Debarment: Party certifies under pains and penalties of perjury that, as of
the date that this Agreement is signed, neither Party nor Party's principals (officers, directors, owners, or
partners) are presently debarred, suspended, proposed for debarment, declared ineligible or excluded from
participation in Federal programs, or programs supported in whole or in part by Federal funds.
Party further certifies under pains and penalties of perjury that, as of the date that this Agreement is
signed, Party is not presently debarred, suspended, nor named on the State's debarment list at:
http://bgs.vertnont.gov/purchasing/debannent
23. Conflict of Interest: Party shall fully disclose, in writing, any conflicts of interest or potential
conflicts of interest.
24. Confidentiality: Party acknowledges and agrees that this Agreement and any and all information
obtained by the State from the Party in connection with this Agreement are subject to the State of
Vermont Access to Public Records Act, 1 V.S.A. § 315 et seq.
25. Force Majeure: Neither the State nor the Party shall be liable to the other for any failure or delay of
performance of any obligations under this Agreement to the extent such failure or delay shall have been
wholly or principally caused by acts or events beyond its reasonable control rendering performance illegal
or impossible (excluding strikes or lock -outs) ("Force Majeure"). Where Force Majeure is asserted, the
nonperforming party must prove that it made all reasonable efforts to remove, eliminate or minimize such
cause of delay or damages, diligently pursued performance of its obligations under this Agreement,
substantially fulfilled all non -excused obligations, and timely notified the other party of the likelihood or
actual occurrence of an event described in this paragraph.
26. Marketing: Party shall not refer to the State in any publicity materials, information pamphlets, press
releases, research reports, advertising, sales promotions, trade shows, or marketing materials or similar
communications to third parties except with the prior written consent of the State.
27. Termination:
A. Non -Appropriation: If this Agreement extends into more than one fiscal year of the State
(July 1 to June 30), and if appropriations are insufficient to support this Agreement, the State may cancel
at the end of the fiscal year, or otherwise upon the expiration of existing appropriation authority. In the
case that this Agreement is a Grant that is funded in whole or in part by Federal funds, and in the event
Federal funds become unavailable or reduced, the State may suspend or cancel this Grant immediately,
and the State shall have no obligation to pay Subrecipient from State revenues.
B. Termination for Cause: Either party may terminate this Agreement if a party materially
breaches its obligations under this Agreement, and such breach is not cured within thirty (30) days after
delivery of the non -breaching parry's notice or such longer time as the non -breaching party may specify
in the notice.
C. Termination Assistance: Upon nearing the end of the final term or termination of this
Agreement, without respect to cause, the Party shall take all reasonable and prudent measures to facilitate
any transition required by the State. All State property, tangible and intangible, shall be returned to the
State upon demand at no additional cost to the State in a format acceptable to the State.
28. Continuity of Performance: In the event of a dispute between the Party and the State, each party will
continue to perform its obligations under this Agreement during the resolution of the dispute until this
Agreement is terminated in accordance with its terms. Attachment c - Page s of s
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r
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29. No Implied Waiver of Remedies: Either party's delay or failure to exercise any right, power or
remedy under this Agreement shall not impair any such right, power or remedy, or be construed as a
waiver of any such right, power or remedy. All waivers must be in writing.
30. State Facilities: If the State makes space available to the Party in any State facility during the term of
this Agreement for purposes of the Party's performance under this Agreement, the Party shall only use the
space in accordance with all policies and procedures governing access to and use of State facilities which
shall be made available upon request. State facilities will be made available to Party on an "AS IS,
WHERE IS" basis, with no warranties whatsoever.
31. Requirements Pertaining Only to Federal Grants and Subrecipient Agreements: If this
Agreement is a grant that is funded in whole or in part by Federal funds:
A. Requirement to Have a Single Audit: The Subrecipient will complete the Subrecipient
Annual Report annually within 45 days after its fiscal year end, informing the State of Vermont whether
or not a Single Audit is required for the prior fiscal year. If a Single Audit is required, the Subrecipient
will submit a copy of the audit report to the granting Party within 9 months. If a single audit is not
required, only the Subrecipient Annual Report is required.
For fiscal years ending before December 25, 2015, a Single Audit is required if the subrecipient expends
$500,000 or more in Federal assistance during its fiscal year and must be conducted in accordance with
OMB Circular A-133. For fiscal years ending on or after December 25, 2015, a Single Audit is required if
the Subrecipient expends $750,000 or more in Federal assistance during its fiscal year and must be
conducted in accordance with 2 CFR Chapter I, Chapter II, Part 200, Subpart F. The Subrecipient Annual
Report is required to be submitted within 45 days, whether or not a Single Audit is required.
B. Internal Controls: In accordance with 2 CFR Part II, §200.303, the Party must establish and
maintain effective internal control over the Federal award to provide reasonable assurance that the Party
is managing the Federal award in compliance with Federal statutes, regulations, and the terms and
conditions of the award. These internal controls should be in compliance with guidance in "Standards for
Internal Control in the Federal Government" issued by the Comptroller General of the United States and
the "Internal Control Integrated Framework", issued by the Committee of Sponsoring Organizations of
the Treadway Commission (COSO).
C. Mandatory Disclosures: In accordance with 2 CFR Part II, §200.113, Party must disclose, in
a timely manner, in writing to the State, all violations of Federal criminal law involving fraud, bribery, or
gratuity violations potentially affecting the Federal award. Failure to make required disclosures may result
in the imposition of sanctions which may include disallowance of costs incurred, withholding of
payments, termination of the Agreement, suspension/debarment, etc.
32. Requirements Pertaining Only to State -Funded Grants:
A. Certification Regarding Use of State Funds: If Party is an employer and this Agreement is a
State -funded grant in excess of $1,001, Party certifies that none of these State funds will be used to
interfere with or restrain the exercise of Party's employee's rights with respect to unionization.
B. Good Standing Certification (Act 154 of 2016): If this Agreement is a State -funded grant,
Party hereby represents: (i) that it has signed and provided to the State the form prescribed by the
Secretary of Administration for purposes of certifying that it is in good standing (as provided in Section
13(a)(2) of Act 154) with the Agency of Natural Resources and the Agency of Agriculture, Food and
Markets, or otherwise explaining the circumstances surrounding the inability to so certify, and (ii) that it
will comply with the requirements stated therein.
(End of Standard Provisions)
STATE OF VERMONT
STANDARD RIDER
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TO SOFTWARE LICENSES AND END USER LICENSE AGREEMENTS
3. MODIFICATIONS TO PROVIDER DOCUMENTS. The State and the Software Publisher/Services Provider ("Provider')
specifically agree that, for purposes of execution of the Provider Documents and this Rider (collectively, "Agreement"), and
notwithstanding any language to the contrary in Provider Documents, the Provider Documents are hereby modified and
superseded as follows:
(a) Any requirement that the State defend or indemnify any party or otherwise be liable for the expenses or reimbursement,
including attorneys' fees, collection costs or license verification costs of any party, is hereby deleted.
(b) Any requirement that the State agree to binding arbitration or otherwise waive the State's right to a jury trial is hereby
deleted.
(c) Provider Documents shall be governed by and construed in accordance with the laws of the State of Vermont and that any
action or proceeding brought by either the State or Provider in connection with this Agreement shall be brought and enforced
in the Superior Court of the State of Vermont, Civil Division, Washington Unit.
(d) Nothing in the Provider Documents shall constitute an implied or deemed waiver of the immunities, defenses, rights or
actions arising out of State's sovereign status or under the Eleventh Amendment to the United States Constitution.
(e) Any provision which limits the time within which an action may be brought is hereby deleted.
(f) Any obligations of the State to maintain the confidentiality of information shall be subject to the laws of the State of
Vermont.
(g) State purchases must be invoiced tax free. An exemption certificate will be furnished upon request covering otherwise
taxable items.
(h) To the extent Provider Documents permit access to State systems for the purpose of verifying State compliance with the
terms of the Provider Documents, then, in lieu of any such right, the following shall apply: upon request and not more
frequently than annually, the State agrees to provide Provider with a certified report concerning the State's use of any software
licensed for State use pursuant this Agreement. Provider agrees that any non-compliance indicated by the report shall not
constitute infringement of Provider's intellectual property rights, and that settlement payment mutually agreeable to the parties
shall be the exclusive remedy for any such non-compliance. This clause shall not be interpreted to provide an independent
right to access State systems where there is no such right expressed in Provider Documents.
(i) Any time software is delivered to the State, whether delivered via electronic media or the internet, to Provider's best
knowledge following due inquiry, no portion of such software or the media upon which it is stored or delivered will have any
type of software routine or other element which is designed to facilitate unauthorized access to or intrusion upon; or
unrequested disabling or erasure of; or unauthorized interference with the operation of any hardware, software, data or
peripheral equipment of or utilized by the State.
0) Limitations or exclusions of liability shall not apply to State claims arising out of (i) Provider's confidentiality obligations
(ii) Provider's obligations to defend and indemnify the State; (iii) personal injury or damage to real or tangible personal
property; or (iv) gross negligence, fraud or intentional misconduct. Limits of liability for State claims shall not be construed
to limit Provider's liability to any third party for any claims a third party may have directly against Provider which may arise
out of Provider's acts or omissions in the performance of this Agreement.
(k) To the extent Provider is a "data collector" for purposes of 9 V.S.A. §2430, it shall comply with all applicable requirements
of V.S.A. §2435.
(1) Records Available for Audit: Provider shall maintain all records pertaining to performance under this
Agreement. "Records" means any written or recorded information, regardless of physical form or characteristics, which is
produced or acquired by Provider in the performance of this agreement. Records produced or acquired in a machine readable
electronic format shall be maintained in that format. The records described shall be made available at reasonable times during
the period of this Agreement and for three years thereafter or for any period required by law for inspection by any authorized
representatives of the State or Federal Government. If any litigation, claim, or audit is started before the expiration of the
three-year period, the records shall be retained until all litigation, claims or audit findings involving the records have been
resolved.
(m) Fair Employment Practices and Americans with Disabilities Act: Provider agrees to comply with the requirement of Title
21 V.S.A. Chapter 5, Subchapter 6, relating to fair employment practices, to the full extent applicable. Provider shall also
ensure, to the full extent required by the Americans with Disabilities Act of 1990, as amended, that qualified individuals with
disabilities receive equitable access to the services, programs, and activities provided by Provider under this Agreement.
Provider further agrees to include this provision in all subcontracts for services performed pursuant to this Agreement in the
State of Vermont.
(n) The State may set off any sums which Provider owes the State against any sums due Provider under this Agreement;
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4.D.b
provided, however, that any set off of amounts due the State of Vermont as taxes shall be in accordance with the procedures
set forth in 32 V.S.A. § 3113.
(o) Taxes Due to the State: Provider certifies under the pains and penalties of perjury that, as of the date the Agreement is
signed, Provider is in good standing with respect to, or in full compliance with, a plan to pay any and all taxes due the State
of Vermont.
(p) No Gifts or Gratuities: Provider shall not give title or possession of anything of substantial value (including property,
currency, travel and/or education programs) to any officer or employee of the State during the term of this Agreement.
(q) Certification Regarding Debarment: Provider certifies under pains and penalties of perjury that, as of the date that this
Agreement is signed, neither Provider nor Provider's principals (officers, directors, owners, or partners) are presently
debarred, suspended, proposed for debarment, declared ineligible or excluded from participation in federal programs, or
programs supported in whole or in part by federal funds. Provider further certifies under pains and penalties of perjury that,
as of the date that this Agreement is signed, Provider is not presently debarred, suspended, nor named on the State's
debarment list at: http://bgs.vermont.goy/purchasing/debarment
(r) Any provision regarding automatic renewal shall be waived and shall have no force and effect.
(s) The State retains full right and title to data provided by State and any data derived therefrom, including metadata
(collectively, the "State Data"). Provider shall not collect, access, or use user -specific State Data except as strictly necessary
to provide licensed service to State. No information regarding State's use of the licensed service may be disclosed, provided,
rented or sold to any third party for any reason unless required by law or regulation or by an order of a court of competent
jurisdiction. This obligation shall extend beyond the term of this Agreement in perpetuity. Provider shall not use any
information collected in connection with this Agreement, including the State Data, for any purpose other than fulfilling its
obligations under this Agreement. At no time may any State Data or processes which either belong to State, or are intended
for State's exclusive use, be copied, disclosed, or retained by Provider for subsequent use in any transaction that does not
include State.
For purposes of this Standard State Rider:
"State" shall mean the State of Vermont, acting through one or more of its agencies, departments, boards, commissions or
other entities empowered to enter into contracts on behalf of the State.
"Provider Documents" shall mean one or more document, agreement or other instrument required by Provider in connection
with the performance of the products and services being procured by the State, regardless of format, including the license
agreement, end user license agreement or similar document to which this Rider is attached, any hyperlinks to documents
contained in the Provider Documents and any other paper or "shrinkwrap," "clickwrap" or other electronic version thereof.
4. ORDER OF PRECEDENCE. Notwithstanding any other provision or other unilateral license terms which may be issued by
Provider after the dated date of this Rider, and irrespective of whether any such provisions have been proposed prior to or
after the issuance of an order for the products and services being purchased by the State, as applicable, the components of
which are licensed under the Provider Documents, or the fact that such other agreement may be affixed to or accompany the
products and services being purchased by the State, as applicable, upon delivery ("shrink wrap"), the terms and conditions set
forth herein shall supersede and govern licensing and delivery of all products and services hereunder. This Rider shall in all
cases take precedence over the Provider Documents and any ambiguity, conflict or inconsistency in the Provider Documents
shall be resolved in accordance with this order of precedence.
I HEREBY ACCEPT THESE TERMS AND CONDITIONS:
SIGNATURE
PRINT NAME
TITLE
COMPANY NAME
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DATE
ATTACHMENT E
BUSINESS ASSOCIATE AGREEMENT (VT ADS/AHS)
Revised MAY 23, 2019
SOV Contractor or Vendor (Contractor Business Associate):
SOV Contract Number:
Date of Contract:
This Business Associate Agreement ("Agreement") is entered into by and between the State of Vermont
Agency of Digital Services as a Business Associate ("ADS") of the State of Vermont Agency of Human
Services ("Covered Entity") (together "the State") and the party identified in this Agreement above as
Contractor or Vendor ("Contractor Business Associate"). This Agreement supplements and is made a part
of the contract identified above ("Contract").
ADS and Contractor Business Associate enter into this Agreement to comply with the Business
Associate Agreement between Covered Entity and ADS, and with standards promulgated under
the Health Insurance Portability and Accountability Act of 1996 ("HIPAX), including the Standards
for the Privacy of Individually Identifiable Health Information, at 45 CFR Parts 160 and 164
("Privacy Rule"), and the Security Standards, at 45 CFR Parts 160 and 164 ("Security Rule"), as
amended by Subtitle D of the Health Information Technology for Economic and Clinical Health
Act (HITECH), and any associated federal rules and regulations.
The parties agree as follows:
1. Definitions. All capitalized terms used but not otherwise defined in this Agreement have
the meanings set forth in 45 CFR Parts 160 and 164 as amended by HITECH and associated
federal rules and regulations. Terms defined in this Agreement are italicized. Unless otherwise
specified, when used in this Agreement, defined terms used in the singular shall be understood if
appropriate in their context to include the plural when applicable.
"ADS Vendor Manage" means that person designated in the Contract as the ADS Vendor
Manager, or such person who is subsequently designated in writing by ADS to the Contractor
Business Associate. The ADS Vendor Manager is not authorized to enter into Contract
amendments on behalf of ADS or the State."
"Agent" means an Individual acting within the scope of the agency of the Contractor Business
Associate, in accordance with the Federal common law of agency, as referenced in 45 CFR §
160.402(c) and includes Workforce members and Subcontractors.
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"Breach" means the acquisition, Access, Use or Disclosure of Protected Health Information (PHI) which
compromises the Security or privacy of the PHI, except as excluded in the definition of Breach in 45 CFR
§ 164.402.
"Business Associate" shall have the meaning given for "Business Associate" in 45 CFR § 160.103.
"Contractor Business Associate" shall have the meaning given for "Business Associate" in 45 CFR §
160.103 and means Vendor and includes its Workforce, Agents and Subcontractors.
"Electronic PHI" shall mean PHI created, received, maintained or transmitted electronically in accordance
with 45 CFR § 160.103.
"Individual' includes a Person who qualifies as a personal representative in accordance with 45
CFR § 164.502(g).
"Protected Health Information" ("PHI") shall have the meaning given in 45 CFR § 160.103, limited
to the PHI created or received by Contractor Business Associate from or on behalf of ADS or
Covered Entity.
"Required by Laval' means a mandate contained in law that compels an entity to make a use or
disclosure of PHI and that is enforceable in a court of law and shall have the meaning given in 45
CFR § 164.103.
"Reporf' means submissions required by this Agreement as provided in section 2.3.
"Security Incident" means the attempted or successful unauthorized Access, Use, Disclosure, modification,
or destruction of information or interference with system operations in an Information System relating to
PHI in accordance with 45 CFR § 164.304.
"Services" includes all work performed by the Contractor Business Associate for or on behalf of
the State that requires the Use and/or Disclosure of PHI to perform a Business Associate function
described in 45 CFR § 160.103.
"Subcontractor" means a Person to whom Contractor Business Associate delegates a function,
activity, or service, other than in the capacity of a member of the Workforce of such Contractor
Business Associate.
"Successful Security Incident" shall mean a Security Incident that results in the unauthorized
Access, Use, Disclosure, modification, or destruction of information or interference with system
operations in an Information System.
"Unsuccessful Security Incident" shall mean a Security Incident such as routine occurrences that
do not result in unauthorized Access, Use, Disclosure, modification, or destruction of information
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or interference with system operations in an Information System, such as: (i) unsuccessful
attempts to penetrate computer networks or services maintained by Contractor Business
Associate; and (ii) immaterial incidents such as pings and other broadcast attacks on Contractor
Business Associate's firewall, port scans, unsuccessful log -on attempts, denials of service and
any combination of the above with respect to Contractor Business Associate's Information
System.
"Targeted Unsuccessful Security Incident" means an Unsuccessful Security Incident that appears
to be an attempt to obtain unauthorized Access, Use, disclosure, modification or destruction of
the Covered Entity's Electronic PHI.
2. Contact Information for Privacy and Security Officers and Reports.
2.1 Contractor Business Associate shall provide, within ten (10) days of the execution of
this Agreement, written notice to the ADS Vendor Manager the names and contact
information of both the HIPAA Privacy Officer and HIPAA Security Officer of the Contractor
Business Associate. This information must be updated by Contractor Business Associate
any time these contacts change.
2.2 Covered Entity's HIPAA Privacy Officer and HIPAA Security Officer contact
information is posted at: http://humanservices.vermont.gov/policy-legislation/hipaa/hipaa-
info-beneficiaries/ahs-hipaa-contacts/
2.3 Contractor Business Associate shall submit all Reports required by this Agreement
to the following email address:
AHS. PrivacyAndSecurity(a-)-vermont.gov
3. Permitted and Required Uses/Disclosures of PHI.
3.1 Subject to the terms in this Agreement, Contractor Business Associate may Use or
Disclose PHI to perform Services, as specified in the Contract. Such Uses and Disclosures are
limited to the minimum necessary to provide the Services. Contractor Business Associate shall not
Use or Disclose PHI in any manner that would constitute a violation of the Privacy Rule if Used or
Disclosed by Covered Entity in that manner. Contractor Business Associate may not Use or
Disclose PHI other than as permitted or required by this Agreement or as Required by Law and
only in compliance with applicable laws and regulations.
3.2 Contractor Business Associate may make PHI available to its Workforce, Agent
and Subcontractor who need Access to perform Services as permitted by this Agreement,
provided that Contractor Business Associate makes them aware of the Use and
Disclosure restrictions in this Agreement and binds them to comply with such restrictions.
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3.3 Contractor Business Associate shall be directly liable under HIPAA for
impermissible Uses and Disclosures of PHI.
4. Business Activities. Contractor Business Associate may Use PHI if necessary for
Contractor Business Associate's proper management and administration or to carry out its legal
responsibilities. Contractor Business Associate may Disclose PHI for Contractor Business
Associate's proper management and administration or to carry out its legal responsibilities if a
Disclosure is Required by Law or if Contractor Business Associate obtains reasonable written
assurances via a written agreement from the Person to whom the information is to be Disclosed
that such PHI shall remain confidential and be Used or further Disclosed only as Required by Law
or for the purpose for which it was Disclosed to the Person, and the Agreement requires the
Person to notify Contractor Business Associate, within five (5) business days, in writing of any
Breach of Unsecured PHI of which it is aware. Such Uses and Disclosures of PHI must be of the
minimum amount necessary to accomplish such purposes.
5. Electronic PHI Security Rule Obligations.
5.1 With respect to Electronic PHI, Contractor Business Associate shall:
a) Implement and use Administrative, Physical, and Technical Safeguards in compliance
with 45 CFR sections 164.308, 164.310, and 164.312;
b) Identify in writing upon request from the State all the safeguards that it uses to protect
such Electronic PHI;
c) Prior to any Use or Disclosure of Electronic PHI by an Agent or Subcontractor, ensure
that any Agent or Subcontractor to whom it provides Electronic PHI agrees in writing to
implement and use Administrative, Physical, and Technical Safeguards that reasonably
and appropriately protect the Confidentiality, Integrity and Availability of Electronic PHI.
The written agreement must identify the State as a direct and intended third party
beneficiary with the right to enforce any breach of the agreement concerning the Use or
Disclosure of Electronic PHI, and be provided to the State upon request;
d) Report in writing to Covered Entity any Successful Security Incident or Targeted
Security Incident as soon as it becomes aware of such incident and in no event later than
five (5) business days after such awareness. Such report shall be timely made
notwithstanding the fact that little information may be known at the time of the report and
need only include such information then available;
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e) Following such report, provide Covered Entity with the information necessary for
Covered Entity to investigate any such incident; and
f) Continue to provide to Covered Entity information concerning the incident as it becomes
available to it.
5.2 Reporting Unsuccessful Security Incidents. Contractor Business Associate shall
provide Covered Entity upon written request a Report that: (a) identifies the categories of
Unsuccessful Security Incidents; (b) indicates whether Business Associate believes its
current defensive security measures are adequate to address all Unsuccessful Security
Incidents, given the scope and nature of such attempts; and (c) if the security measures
are not adequate, the measures Business Associate will implement to address the security
inadequacies.
5.3 Contractor Business Associate shall comply with any reasonable policies and
procedures Covered Entity implements to obtain compliance under the Security Rule.
6. Reporting and Documenting Breaches.
6.1 Contractor Business Associate shall Report to Covered Entity any Breach of
Unsecured PHI as soon as it, or any Person to whom PHI is disclosed under this
Agreement, becomes aware of any such Breach, and in no event later than five (5)
business days after such awareness, except when a law enforcement official determines
that a notification would impede a criminal investigation or cause damage to national
security. Such Report shall be timely made notwithstanding the fact that little information
may be known at the time of the Report and need only include such information then
available.
6.2 Following the Report described in 6.1, Contractor Business Associate shall
conduct a risk assessment and provide it to Covered Entity with a summary of the event.
Contractor Business Associate shall provide Covered Entity with the names of any
Individual whose Unsecured PHI has been, or is reasonably believed to have been, the
subject of the Breach and any other available information that is required to be given to
the affected Individual, as set forth in 45 CFR § 164.404(c). Upon request by Covered
Entity, Contractor Business Associate shall provide information necessary for Covered
Entity to investigate the impermissible Use or Disclosure. Contractor Business Associate
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shall continue to provide to Covered Entity information concerning the Breach as it
becomes available.
6.3 When Contractor Business Associate determines that an impermissible
acquisition, Access, Use or Disclosure of PHI for which it is responsible is not a Breach,
and therefore does not necessitate notice to the impacted Individual, it shall document its
assessment of risk, conducted as set forth in 45 CFR § 402(2). Contractor Business
Associate shall make its risk assessment available to Covered Entity upon request. It shall
include 1) the name of the person making the assessment, 2) a brief summary of the facts,
and 3) a brief statement of the reasons supporting the determination of low probability that
the PHI had been compromised.
7. Mitigation and Corrective Action. Contractor Business Associate shall mitigate, to the
extent practicable, any harmful effect that is known to it of an impermissible Use or Disclosure of
PHI, even if the impermissible Use or Disclosure does not constitute a Breach. Contractor
Business Associate shall draft and carry out a plan of corrective action to address any incident of
impermissible Use or Disclosure of PHI. Contractor Business Associate shall make its mitigation
and corrective action plans available to the State upon request.
8. Providing Notice of Breaches.
8.1 If Covered Entity determines that a Breach of PHI for which Contractor Business
Associate was responsible, and if requested by Covered Entity, Contractor Business
Associate shall provide notice to the Individual whose PHI has been the subject of the
Breach. When so requested, Contractor Business Associate shall consult with Covered
Entity about the timeliness, content and method of notice, and shall receive Covered
Entity's approval concerning these elements. Contractor Business Associate shall be
responsible for the cost of notice and related remedies.
8.2 The notice to affected Individuals shall be provided as soon as reasonably possible
and in no case later than 60 calendar days after Contractor Business Associate reported
the Breach to Covered Entity.
8.3 The notice to affected Individuals shall be written in plain language and shall
include, to the extent possible, 1) a brief description of what happened, 2) a description of
the types of Unsecured PHI that were involved in the Breach, 3) any steps Individuals can
take to protect themselves from potential harm resulting from the Breach, 4) a brief
description of what the Contractor Business Associate is doing to investigate the Breach
to mitigate harm to Individuals and to protect against further Breaches, and 5) contact
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procedures for Individuals to ask questions or obtain additional information, as set forth in
45 CFR § 164.404(c).
8.4 Contractor Business Associate shall notify Individuals of Breaches as specified in
45 CFR § 164.404(d) (methods of Individual notice). In addition, when a Breach involves
more than 500 residents of Vermont, Contractor Business Associate shall, if requested by
Covered Entity, notify prominent media outlets serving Vermont, following the
requirements set forth in 45 CFR § 164.406.
9. Agreements with Subcontractors. Contractor Business Associate shall enter into a
Business Associate Agreement with any Subcontractor to whom it provides PHI to require
compliance with HIPAA and to ensure Contractor Business Associate and Subcontractor comply
with the terms and conditions of this Agreement. Contractor Business Associate must enter into
such written agreement before any Use by or Disclosure of PHI to such Subcontractor. The written
agreement must identify the State as a direct and intended third party beneficiary with the right to
enforce any breach of the agreement concerning the Use or Disclosure of PHI. Contractor
Business Associate shall provide a copy of the written agreement it enters into with a
Subcontractor to the State upon request. Contractor Business Associate may not make any
Disclosure of PHI to any Subcontractor without prior written consent of the State.
10. Access to PHI. Contractor Business Associate shall provide access to PHI in a
Designated Record Set to Covered Entity or as directed by Covered Entity to an Individual to meet
the requirements under 45 CFR § 164.524. Contractor Business Associate shall provide such
access in the time and manner reasonably designated by Covered Entity. Within five (5) business
days, Contractor Business Associate shall forward to Covered Entity for handling any request for
Access to PHI that Contractor Business Associate directly receives from an Individual.
11. Amendment of PHI. Contractor Business Associate shall make any amendments to PHI
in a Designated Record Set that Covered Entity directs or agrees to pursuant to 45 CFR §
164.526, whether at the request of Covered Entity or an Individual. Contractor Business Associate
shall make such amendments in the time and manner reasonably designated by Covered Entity.
Within five (5) business days, Contractor Business Associate shall forward to Covered Entity for
handling any request for amendment to PHI that Contractor Business Associate directly receives
from an Individual.
12. Accounting of Disclosures. Contractor Business Associate shall document Disclosures
of PHI and all information related to such Disclosures as would be required for Covered Entity to
respond to a request by an Individual for an accounting of disclosures of PHI in accordance with
45 CFR § 164.528. Contractor Business Associate shall provide such information to Covered
Entity or as directed by Covered Entity to an Individual, to permit Covered Entity to respond to an
accounting request. Contractor Business Associate shall provide such information in the time
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and manner reasonably designated by Covered Entity. Within five (5) business days, Contractor
Business Associate shall forward to Covered Entity for handling any accounting request that
Contractor Business Associate directly receives from an Individual.
13. Books and Records. Subject to the attorney -client and other applicable legal privileges,
Contractor Business Associate shall make its internal practices, books, and records (including
policies and procedures and PHI) relating to the Use and Disclosure of PHI available to the
Secretary of Health and Human Services ("HHS") in the time and manner designated by the
Secretary. Contractor Business Associate shall make the same information available to Covered
Entity, upon Covered Entity's request, in the time and manner reasonably designated by Covered
Entity so that Covered Entity may determine whether Contractor Business Associate is in
compliance with this Agreement.
14. Termination.
14.1 This Agreement commences on the Effective Date and shall remain in effect until
terminated by the State or until all the PHI is destroyed or returned to Covered Entity
subject to Section 18.8.
14.2 If Contractor Business Associate fails to comply with any material term of this
Agreement, the State may provide an opportunity for Contractor Business Associate to
cure. If Contractor Business Associate does not cure within the time specified by the State
or if the State believes that cure is not reasonably possible, the State may immediately
terminate the Contract without incurring liability or penalty for such termination. If neither
termination nor cure are feasible, Covered Entity shall report the breach to the Secretary
of HHS. The State has the right to seek to cure such failure by Contractor Business
Associate. Regardless of whether the State cures, it retains any right or remedy available
at law, in equity, or under the Contract and Contractor Business Associate retains its
responsibility for such failure.
15. Return/Destruction of PHI.
15.1 Contractor Business Associate in connection with the expiration or termination of
the Contract shall return or destroy, at the discretion of the Covered Entity, PHI that
Contractor Business Associate still maintains in any form or medium (including electronic)
within thirty (30) days after such expiration or termination. Contractor Business Associate
shall not retain any copies of PHI. Contractor Business Associate shall certify in writing
and report to Covered Entity (1) when all PHI has been returned or destroyed and (2) that
Contractor Business Associate does not continue to maintain any PHI. Contractor
Business Associate is to provide this certification during this thirty (30) day period.
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15.2 Contractor Business Associate shall report to Covered Entity any conditions that
Contractor Business Associate believes make the return or destruction of PHI infeasible.
Contractor Business Associate shall extend the protections of this Agreement to such PHI
and limit further Uses and Disclosures to those purposes that make the return or
destruction infeasible for so long as Contractor Business Associate maintains such PHI.
16. Penalties. Contractor Business Associate understands that: (a) there may be civil or
criminal penalties for misuse or misappropriation of PHI and (b) violations of this Agreement may
result in notification by Covered Entity to law enforcement officials and regulatory, accreditation,
and licensure organizations.
17. Training. Contractor Business Associate understands its obligation to comply with the
law and shall provide appropriate training and education to ensure compliance with this
Agreement. If requested by the State, Contractor Business Associate shall participate in Covered
Entity's training regarding the Use, Confidentiality, and Security of PHI; however, participation in
such training shall not supplant nor relieve Contractor Business Associate of its obligations under
this Agreement to independently assure compliance with the law and this Agreement.
18. Miscellaneous.
18.1 In the event of any conflict or inconsistency between the terms of this Agreement
and the terms of the Contract, the terms of this Agreement shall govern with respect to its
subject matter. Otherwise, the terms of the Contract continue in effect.
18.2 Each party shall cooperate with the other party to amend this Agreement from
time to time as is necessary for such party to comply with the Privacy Rule, the Security
Rule, or any other standards promulgated under HIPAA. This Agreement may not be
amended, except by a writing signed by all parties hereto.
18.3 Any ambiguity in this Agreement shall be resolved to permit the parties to comply
with the Privacy Rule, Security Rule, or any other standards promulgated under HIPAA.
18.4 In addition to applicable Vermont law, the parties shall rely on applicable federal
law (e.g., HIPAA, the Privacy Rule, Security Rule, and HITECH) in construing the
meaning and effect of this Agreement.
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18.5 Contractor Business Associate shall not have or claim any ownership of PHI.
18.6 Contractor Business Associate shall abide by the terms and conditions of this
Agreement with respect to all PHI even if some of that information relates to specific
services for which Contractor Business Associate may not be a "Contractor Business
Associate" of Covered Entity under the Privacy Rule.
18.7 Contractor Business Associate is prohibited from directly or indirectly receiving any
remuneration in exchange for an Individual's PHI. Contractor Business Associate will
refrain from marketing activities that would violate HIPAA, including specifically Section
13406 of the HITECH Act. Reports or data containing PHI may not be sold without
Covered Entity's or the affected Individual's written consent.
18.8 The provisions of this Agreement that by their terms encompass continuing rights
or responsibilities shall survive the expiration or termination of this Agreement. For
example: (a) the provisions of this Agreement shall continue to apply if Covered Entity
determines that it would be infeasible for Contractor Business Associate to return or
destroy PHI as provided in Section 14.2 and (b) the obligation of Contractor Business
Associate to provide an accounting of disclosures as set forth in Section 12 survives the
expiration or termination of this Agreement with respect to accounting requests, if any,
made after such expiration or termination.
For ADS:
Signature:
Name:
Title:
Date:
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For Contractor Business Associate:
Signature:
Name:
Title:
Date:
(End of Attachment E)
WASHINGTON
I. WASHINGTON's ELECTRONIC BUSINESS SOLUTIONS (WEBS) SYSTEM: Within seven (7) days of
execution of this Participating Addendum, Contractor shall register in the Washington State
Department of Enterprise Services' Electronic Business Solutions (WEBS)
System at WEBS. Contractor shall ensure that all of its information therein is current and accurate
and that, throughout the term of the Master Agreement, Contractor shall maintain an accurate
profile in WEBS.
2. WASHINGTON's STATEWIDE PAYEE DESK: To be paid for contract sales, Contractors must
register with Washington's Statewide Payee Desk. Washington state agencies cannot make
payments to a contractor until it is registered. Registration materials are available
here: Receiving Payment from the State.
3. CONTRACT SALES REPORTING: Contractor shall report total contract sales quarterly to
Enterprise Services, as set forth below.
a. REPORTING. Contractor shall report quarterly Contract sales in Enterprise
Services' Contract Sales Reporting System. Enterprise Services will provide Contractor
with a login password and a vendor number.
b. DATA. Each sales report must identify every authorized Purchasing Entity by
name as it is known to Enterprise Services and its total combined sales amount invoiced
during the reporting period (i.e., sales of an entire agency or political subdivision, not
its individual subsections). The "Miscellaneous" option may be used only with prior
approval by Enterprise Services. Upon request, Contractor shall provide contact
information for all authorized Purchasing Entities specified herein during the term of
this Participating Addendum. Refer sales reporting questions to the Primary Contact
set forth below. If there are no contract sales during the reporting period, Contractor
must report zero sales.
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C. DUE DATES FOR CONTRACT SALES REPORTING. Quarterly Contract Sales Reports must
be submitted electronically by the following deadlines for all sales invoiced during the
applicable calendar quarter:
For Calendar Quarter Ending
Contract Sales Report Due
March 31
April 30
June 30
July 31
September 30
October 31
December 31
January 31
4. VENDOR MANAGEMENT FEE: Contractor shall pay to Enterprise Services a vendor
management fee ("VMF") of 1.5 percent on the purchase price for all contract sales (the purchase
price is the total invoice price less applicable sales tax) authorized by this Participating
Addendum.
a. The sum owed by Contractor to Enterprise Services as a result of the VMF is
calculated as follows:
Amount owed to Enterprise Services = Total contract sales invoiced (not
including sales tax) x .0150.
b. The VMF must be rolled into Contractor's current pricing. The VMF must not be
shown as a separate line item on any invoice unless specifically requested and approved
by Enterprise Services.
C. Enterprise Services will invoice Contractor quarterly based on contract sales
reported by Contractor. Contractor shall not remit payment until it receives an invoice
from Enterprise Services. Contractor's VMF payment to Enterprise Services must
reference the following:
■ This Washington Master Contract No.:
• The NASPO Master Agreement No.:
• The year and quarter for which the VMF is being remitted, and
• Contractor's name as set forth in this Contract, if not already included on
the face of the check.
d. Contractor's failure accurately and timely to report total net sales, to submit
usage reports, or remit payment of the VMF to Enterprise Services, may be cause
for suspension or termination of this Participating Addendum or the exercise
of any other remedies as provided by law.
e. Enterprise Services reserves the right, upon thirty (30) days advance written
notice, to increase, reduce, or eliminate the VMF for subsequent purchases.
f. For purposes of the VMF, the parties agree that the initial management
fee is included in the pricing. Therefore, any increase or reduction of the management
fee must be reflected in contract pricing commensurate with the adjustment.
5. CONTRACTOR REPRESENTATIONS AND WARRANTIES: Contractor makes each of the following
representations and warranties as of the effective date of this Participating Addendum and at the
time any order is placed pursuant to the Master Contract. If, at the time of any such order,
Contractor cannot make such representations and warranties, Contractor shall not process any
orders and shall, within three (3) business days notify Enterprise Services, in writing, of such
breach.
a. WAGE VIOLATIONS. Contractor represents and warrants that, during the term of
this Master Contract and the three (3) year period immediately preceding the award of
the Master Contract, it is not determined, by a final and binding citation and notice of
assessment issued by the Washington Department of Labor and Industries or through
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a civil judgment entered by a court of limited or general jurisdiction, to be in willful
violation of any provision of Washington state wage laws set forth in RCW chapters
49.46, 49.48, or 49.52.
b. PAY EQUALITY. Contractor represents and warrants that, among its
workers, similarly employed individuals are compensated as equals. For purposes of
this provision, employees are similarly employed if the individuals work for the same
employer, the performance of the job requires comparable skill, effort, and
responsibility, and the jobs are performed under similar working conditions. Job titles
alone are not determinative of whether employees are similarly employed. Contractor
may allow differentials in compensation for its workers based in good faith on any of
the following: a seniority system; a merit system; a system that measures earnings by
quantity or quality of production; a bona fide job -related factor or factors; or a bona
fide regional difference in compensation levels. A bona fide job -related factor or factors
may include, but not be limited to, education, training, or experience that is: consistent
with business necessity; not based on or derived from a gender -based differential; and
accounts for the entire differential. A bona fide regional difference in compensation
level must be consistent with business necessity; not based on or derived from a
gender -based differential; and account for the entire differential. Notwithstanding any
provision to the contrary, upon breach of warranty and Contractor's failure to provide
satisfactory evidence of compliance within thirty (30) days, Enterprise Services may
suspend or terminate this Participating Addendum and Master Contract and any
Purchaser hereunder similarly may suspend or terminate its use of the
Master Contract and/or any agreement entered into pursuant to this Participating
Addendum.
C. EXECUTIVE ORDER 18-03 — WORKERS' RIGHTS (MANDATORY INDIVIDUAL
ARBITRATION). Contractor represents and warrants, that Contractor does NOT require its
employees, as a condition of employment, to sign or agree to mandatory individual
arbitration clauses or class or collective action waivers. Contractor further represents
and warrants that, during the term of this Master Contract, Contractor shall not, as a
condition of employment, require its employees to sign or agree to mandatory
individual arbitration clauses or class or collective action waivers.
6. COMPLIANCE WITH LAW; TAXES, LICENSES, & REGISTRATION: Contractor shall Comply with all
applicable law. Prior to making any sales hereunder, if Contractor is not already
registered, Contractor shall register to conduct business in the State of Washington and promptly
acquire and maintain all necessary licenses and registrations and pay all applicable taxes and
fees. In addition, for all sales to Purchasers in the State of Washington, if Contractor does not
currently do so, Contractor shall calculate, collect, and remit, as appropriate, the applicable state
and local sales tax on all invoices.
Page 79 of
Packet Pg. 264
4.D.b
EXHIBIT 3 — SOFTWARE VAR HISTORICAL AGGREGATE SPEND
Year
Spend (Millions)
2019
$729.31
2018
$646.48
2017
$428.28
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Packet Pg. 265
4.D.b
NASPO ValuePoint requires lir
Quarterly detailed sales repor
soendreoorts(@nasoovalueoo
Q1
Quarter End:
Report Due: /
Q2
Quarter End:
Report Due: J
Q3
Quarter End:
Report Due:
Q4
Quarter End:
Report Due: J
Reports should be submitted i
required are described below
Please contact Jonathan Hollir
sales reporting
*Field not required if submitte
Field
Portfolio*
Year*
Quarter*
Vendor Name*
Vendor Contract Number
State
Customer_Type
Customer Number
Bill —to —Name
Bill to Address
Bill to_City
Bill_to_Zipcode
Customer PO Number
Invoice Number
Invoice Date
Band
Product Publisher
Packet Pg. 266
4.D.b
Product
Category
Product
Number
Product
Description
UNSPSC
Code
Unit Price
Quantity
Total Price
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4.D.b
NASPO
Valueftnt
Quarterly Detailed Sales Report Submission
ie item sales reports on a quarterly basis for all sales completed under NASPO Value Point contracts.
Is are required to be submitted via the online portal at https://reporting.naspovaluepoint.org, via email
int.org, or via another approved automatic submission method based on the following schedule.
March 31st
April 30th
June 30th
July 31st
September 30th
Dctober 31st
December 31st
January 315t
in CSV or Excel format (on Data worksheet) with no additional formatting, subtotals, or total rows includ
and should be included exactly as they are labeled and can be provided in any order.
nger at iholliner@naspo.or to set up automated reporting integrations or with other questions related
?d via online portal.
Description
Name of portfolio.
Reporting period year.
Reporting period quarter on a calendar year basis.
Name of vendor.
Contract number sale is occurring under. Numbering and format is determined by entity.
State postal abbreviation code (Alaska = AK, Missouri = MO, etc.)
State Gov, Education-K12, Education-HED, Local Gov, Non -Profit, Other
Vendor assigned identifier for customer.
Customer (agency) Bill to name
Customer (agency) Bill to address
Customer (agency) Bill to city
Zip code in standard format
PO number assigned by purchasing entity.
Vendor assigned order or invoice number
m m/d d/yyyy
Microsft, Oracle, All Other Publishers
Original publisher of software: Microsoft, Oracle, Adobe, Salesforce, Etc.
Packet Pg. 268
4.D.b
On -Premise, Saas, PaaS, laas, Resold Professional Service, Reseller Service
Unique publisher/reseller assigned product number of purchased product
Product description of purchased product.
UNSPSC Commodity Code
Unit Price - US Currency ($99999.99)
Quantity Invoiced (99999.99)
Extended Price (unit price multiplied by the quantity invoiced) - US Currency ($999999.99)
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Software VAR
2020
4
Software Resale, Inc.
AR3114
KY
Education-HED
173628
University of Kentucky
100 Administration Dr
Lexington
40508
PO561424
71636177
1/1/2019
Microsoft
Microsoft
Packet Pg. 270
4.D.b
SaaS
8279102
Office 365 License
43232100
$50.00
10.00
$500.00
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Portfolio Year Quarter Vendor Name Vendor Contract Number State
Packet Pg. 272
4.D.b
Customer_Type Customer —Number Bill —to —Name Bill —to —Address Bill —to —City
Packet Pg. 273
4.D.b
BiII_to_Zipcode Customer PO Number Invoice —Number Invoice —Date Band
Packet Pg. 274
4.D.b
Product —Publisher Product_Category Product —Number Prod uct_Description
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UNSPSC_Cocle Unit —Price Quantity Total —Price
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4.D.b
NASPO VALUEPOINT SOFTWARE VALUE-ADDED RESEI
STATE OF ARIZONA SOLICITATION #BPM0022
MANDATORY COST PROPOSAL FORM FOR ALL PUBLISHERS EXCEPT
Use this tab ONLY if you wish to be considered for a contract award in this category AND if you have submitted a res
your proposal. Evaluation shall be based on the AVERAGE OF ALL PERCENTAGES listed for each pricing model in this
INSTRUCTIONS: Please complete all GREEN, YELLOW, and ORANGE fields below. For the full set of line items include,
Reseller's Invoiced Cost, 2) a Minimum Discount Off Manufacturer's Suggested Retail Price (MSRP), or 3) both. YOU
you may not submit a Maximum Markup for half of the line items in this category and a Minimum Discount for the c
types of pricing models, submitting pricing for only one model may prevent you from doing business with certain err
models if possible. Proposals using one cost model will be evaluated against only those proposals using the same co!
both models may be permitted to offer products and services using both models, or may be permitted to offer prods
outcome of the evaluation.
NOTE: Any formulas entered into this form have been entered as a COURTESY ONLY, and it is solely the responsibilit°
this spreadsheet --including mathematical calculations --are complete and accurate.
PUBLISHERS
Tier I Publishers (Key Itemized Publishers)
1
ADOBE
2
CATECHNOLOGIES
3
CISCO
4
COMMVAULT
5
JIBM
6
RED HAT
7
SPLUNK
8
TABLEAU
9
VEEAM
10
VMWARE
Tier II Publishers (Other Itemized Publishers)
11
AUTODESK
12
BARRACUDA NETWORKS
13
BMC SOFTWARE
14
CHECK POINT SOFTWARE
15
CHERWELL
16
CITRIX
17
CHATSWORTH PRODUCTS (CPI)
18
ICROWDSTRIKE
19
DELL
20
DELPHIX
21
DOCUSIGN
22
DYNATRACE
23
IFORCEPOINT
Packet Pg. 277
4.D.b
24
FORTINET
25
GOOGLE
26
INFORMATICA
27
IVANTI
28
JKNOWBF4
29
MCAFEE
30
MICRO FOCUS
31
MULESOFT
32
NETMOTION
33
JOKTA
34
OPENTEXT
35
PROGRESS SOFTWARE
36
PROOFPOINT
37
QUEST SOFTWARE
38
IRAPID7
39
RSA SECURITY
40
SALESFORCE
41
SAP
42
SOLARWINDS
43
SOPHOS
44
SPILLMAN
45
SYMANTEC
46
TENABLE
47
TREND MICRO
48
VARONIS
49
VERITAS
50
ZOHO
Non -itemized Publishers
51
All other publishers
52
Reseller Services
53
- Asset management
54
- Solutions architect
55
- Senior solutions architect
56
- Program engagement manager
57
- Project leader
58
- Project manager
59
- Senior project manager
60
All other in -scope reseller services
A
Average Tier I Publishers Markup/Discount:
B
Average Tier II Publishers Markup/Discount:
C
Non -itemized Publishers Markup/Discount
D
Average Reseller Services Hourly Rate:
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4.D.b
_LER (SVAR)
138
MICROSOFT AND ORACLE
ponse to all questions and criteria related to this category in
tab.
d in this category, you may submit 1) a Maximum Markup on
MUST BE CONSISTENT IN YOUR USE OF PRICING MODELS (i.e.,
ether half). As some Purchasing Entities can only use certain
tities, and resellers are encouraged to submit pricing for both
>t model. If awarded a contract, a vendor submitting pricing for
ucts and services using only one model, depending on the
y of each Offeror to ensure that all information entered into
MAXIMUM MARKUP
ON RESELLER'S
INVOICED COST
MINIMUM DISCOUNT
OFF MANUFACTURER'S
SUGGESTED RETAIL
PRICE (MSRP)
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
Packet Pg. 279
4.D.b
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
HOURLY RATE
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
$0.00
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4.D.b
NASPO VALUEPOINT SOFTWARE VALUE-ADDED RESEI
STATE OF ARIZONA SOLICITATION #BPM0022
OPTIONAL SERVICES COST PROPOSAL FORM FOR ALL PUBLISHERS EXCE
Use this tab ONLY if you wish to be considered for a contract award in this category AND if you have submitted a res
your proposal. Evaluation shall be based on the AVERAGE OF ALL PERCENTAGES listed for each pricing model in this
INSTRUCTIONS: The offering of other services not included in the General Mandatory tab is OPTIONAL. Pricing provii
master agreement, but states may consider this pricing when determining with which contractors to execute a partil
submit 1) a Maximum Markup on Reseller's Invoiced Cost, 2) a Minimum Discount Off Manufacturer's Suggested Re
YOUR USE OF PRICING MODELS (i.e. , you may not submit a Maximum Markup for half of the line items in this categi
Purchasing Entities can only use certain types of pricing models, submitting pricing for only one model may prevent
encouraged to submit pricing for both models if possible.
NOTE: Any formulas entered into this form have been entered as a COURTESY ONLY, and it is solely the responsibilit°
this spreadsheet --including mathematical calculations --are complete and accurate.
OPTIONAL SERVICES
Optional Discount- and/or Markup -based Services
1
[Enter service here. Insert rows as necessary.]
2
[Enter service here. Insert rows as necessary.]
3
[Enter service here. Insert rows as necessary.]
4
[Enter service here. Insert rows as necessary.]
5
[Enter service here. Insert rows as necessary.]
Optional Fixed Rate -based Services
6
[Enter service here. Insert rows as necessary.]
7
[Enter service here. Insert rows as necessary.]
8
[Enter service here. Insert rows as necessary.]
9
[Enter service here. Insert rows as necessary.]
10
[Enter service here. Insert rows as necessary.]
Packet Pg. 281
4.D.b
_LER (SVAR)
138
PT MICROSOFT AND ORACLE
ponse to all questions and criteria related to this category in
tab.
Jed in this tab will not be evaluated for purposes of awarding a
-ipating addendum and which services to include. You may
tail Price (MSRP), or 3) both, but YOU MUST BE CONSISTENT IN
Dry and a Minimum Discount for the other half). As some
you from doing business with certain entities, and resellers are
y of each Offeror to ensure that all information entered into
MAXIMUM MARKUP
ON RESELLER'S
INVOICED COST
MINIMUM DISCOUNT
OFF MANUFACTURER'S
SUGGESTED RETAIL
PRICE (MSRP)
HOURLY RATE
$0.00
$0.00
$0.00
$0.00
$0.00
Packet Pg. 282
4.D.b
NASPO VALUEPOINT SOFTWARE VALUE-ADDED RESEI
STATE OF ARIZONA SOLICITATION #BPM0023
MANDATORY COST PROPOSAL FORM FOR MICROS(
Use this tab ONLY if you wish to be considered for a contract award in this category AND if you have submitted a res
your proposal. Evaluation shall be based on the AVERAGE OF ALL PERCENTAGES listed for each pricing model in this
INSTRUCTIONS: Please complete all GREEN, YELLOW, and ORANGE fields below. For the full set of line items include,
Reseller's Invoiced Cost, 2) a Minimum Discount Off Manufacturer's Suggested Retail Price (MSRP), or 3) both. YOU
you may not submit a Maximum Markup for half of the line items in this category and a Minimum Discount for the c
types of pricing models, submitting pricing for only one model may prevent you from doing business with certain err
models if possible. Proposals using one cost model will be evaluated against only those proposals using the same co!
both models may be permitted to offer products and services using both models, or may be permitted to offer prods
outcome of the evaluation.
NOTE: Any formulas entered into this form have been entered as a COURTESY ONLY, and it is solely the responsibilit°
this spreadsheet --including mathematical calculations --are complete and accurate.
SUBCATEGORY
Itemized Microsoft Offerings
1
EMS E5
2
G1
3
G2
4
G3
5
JG5
6
Govt E4
7
Advanced Threat Protection
8
Power BI
9
Exchange Online
10
Kiosk F3 Now
11
Dynamics
12
PowerApps
13
Project Online
14
JAzure
All Other Microsoft Offerings
15
SaaS
16
On -Premise
Resold In -scope Professional Services
17
- Ongoing maintenance & support services not included in software license agreement
18
- Deployment services
19
-Architectural design services
20
- Training deployment services
21
All other resold in -scope professional services
Packet Pg. 283
4.D.b
In -scope Reseller Services
22
- Asset management
23
- Solutions architect
24
1 - Senior solutions architect
25
- Program engagement manager
26
- Project leader
27
- Project manager
28
- Senior project manager
29
JAII other in -scope reseller services
A
Average Itemized Offerings Markup/Discount:
B
Average Other Offerings Markup/Discount:
C
Average Resold In -scope Professional Services Markup/Discount:
D
Average In -scope Reseller Services Hourly Rate:
iN
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4.D.b
_LER (SVAR)
138
)FT ONLY
ponse to all questions and criteria related to this category in
tab.
d in this category, you may submit 1) a Maximum Markup on
MUST BE CONSISTENT IN YOUR USE OF PRICING MODELS (i.e.,
ether half). As some Purchasing Entities can only use certain
tities, and resellers are encouraged to submit pricing for both
>t model. If awarded a contract, a vendor submitting pricing for
ucts and services using only one model, depending on the
y of each Offeror to ensure that all information entered into
MAXIMUM MARKUP
ON RESELLER'S
INVOICED COST (may be
negative if sold at loss)
MINIMUM DISCOUNT
OFF MANUFACTURER'S
SUGGESTED RETAIL
PRICE (MSRP)
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
Packet Pg. 285
4.D.b
I HOURLY RATE I
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
$0.00
Packet Pg. 286
4.D.b
NASPO VALUEPOINT SOFTWARE VALUE-ADDED RESEI
STATE OF ARIZONA SOLICITATION #BPM0023
OPTIONAL SERVICES COST PROPOSAL FORM FOR MICR
Use this tab ONLY if you wish to be considered for a contract award in this category AND if you have submitted a res
your proposal. Evaluation shall be based on the AVERAGE OF ALL PERCENTAGES listed for each pricing model in this
INSTRUCTIONS: The offering of other services not included in the Microsoft Mandatory tab is OPTIONAL. Pricing pro
a master agreement, but states may consider this pricing when determining with which contractors to execute a par
submit 1) a Maximum Markup on Reseller's Invoiced Cost, 2) a Minimum Discount Off Manufacturer's Suggested Re
YOUR USE OF PRICING MODELS (i.e. , you may not submit a Maximum Markup for half of the line items in this categi
Purchasing Entities can only use certain types of pricing models, submitting pricing for only one model may prevent
encouraged to submit pricing for both models if possible.
NOTE: Any formulas entered into this form have been entered as a COURTESY ONLY, and it is solely the responsibilit°
this spreadsheet --including mathematical calculations --are complete and accurate.
OPTIONAL SERVICES
Optional Discount- and/or Markup -based Services
1
[Enter service here. Insert rows as necessary.]
2
[Enter service here. Insert rows as necessary.]
3
[Enter service here. Insert rows as necessary.]
4
[Enter service here. Insert rows as necessary.]
5
[Enter service here. Insert rows as necessary.]
Optional Fixed Rate -based Services
6
[Enter service here. Insert rows as necessary.]
7
[Enter service here. Insert rows as necessary.]
8
[Enter service here. Insert rows as necessary.]
9
[Enter service here. Insert rows as necessary.]
10
[Enter service here. Insert rows as necessary.]
Packet Pg. 287
4.D.b
_LER (SVAR)
138
OSOFT ONLY
ponse to all questions and criteria related to this category in
tab.
vided in this tab will not be evaluated for purposes of awarding
ticipating addendum and which services to include. You may
tail Price (MSRP), or 3) both, but YOU MUST BE CONSISTENT IN
Dry and a Minimum Discount for the other half). As some
you from doing business with certain entities, and resellers are
y of each Offeror to ensure that all information entered into
MAXIMUM MARKUP MINIMUM DISCOUNT
OFF MANUFACTURER'S
ON RESELLER'S
INVOICED COST SUGGESTED RETAIL
PRICE (MSRP)
HOURLY RATE
$0.00
$0.00
$0.00
$0.00
$0.00
Packet Pg. 288
4.D.b
NASPO VALUEPOINT SOFTWARE VALUE-ADDED RESEI
STATE OF ARIZONA SOLICITATION #BPM0023
MANDATORY COST PROPOSAL FORM FOR ORACL
Use this tab ONLY if you wish to be considered for a contract award in this category AND if you have submitted a res
your proposal. Evaluation shall be based on the AVERAGE OF ALL PERCENTAGES listed for each pricing model in this
INSTRUCTIONS: Please complete all GREEN, YELLOW, and ORANGE fields below. For the full set of line items include,
Reseller's Invoiced Cost, 2) a Minimum Discount Off Manufacturer's Suggested Retail Price (MSRP), or 3) both. YOU
you may not submit a Maximum Markup for half of the line items in this category and a Minimum Discount for the c
types of pricing models, submitting pricing for only one model may prevent you from doing business with certain err
models if possible. Proposals using one cost model will be evaluated against only those proposals using the same co!
both models may be permitted to offer products and services using both models, or may be permitted to offer prods
outcome of the evaluation.
NOTE: Any formulas entered into this form have been entered as a COURTESY ONLY, and it is solely the responsibilit°
this spreadsheet --including mathematical calculations --are complete and accurate.
SUBCATEGORY
Oracle Offerings
1
SaaS
2
On -Premise
Resold In -scope Professional Services
3
- Ongoing maintenance & support services not included in software license agreement
4
- Deployment services
5
-Architectural design services
6
- Training deployment services
7
All other resold in -scope professional services
In -scope Reseller Services
8
- Asset management
9
- Solutions architect
10
- Senior solutions architect
11
- Program engagement manager
12
1 - Project leader
13
- Project manager
14
- Senior project manager
15
All other in -scope reseller services
A Average Offerings Markup/Discount:
B Average Resold In -scope Professional Services Markup/Discount:
C Average In -scope Reseller Services Hourly Rate:
Packet Pg. 289
4.D.b
_LER (SVAR)
138
E ONLY
ponse to all questions and criteria related to this category in
tab.
d in this category, you may submit 1) a Maximum Markup on
MUST BE CONSISTENT IN YOUR USE OF PRICING MODELS (i.e.,
ether half). As some Purchasing Entities can only use certain
tities, and resellers are encouraged to submit pricing for both
>t model. If awarded a contract, a vendor submitting pricing for
ucts and services using only one model, depending on the
y of each Offeror to ensure that all information entered into
MAXIMUM MARKUP
ON RESELLER'S
INVOICED COST
MINIMUM DISCOUNT
OFF MANUFACTURER'S
SUGGESTED RETAIL
PRICE (MSRP)
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
HOURLY RATE
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
0.00% 0.00
0.00% 0.00
$0.00
Packet Pg. 290
4.D.b
NASPO VALUEPOINT SOFTWARE VALUE-ADDED RESEI
STATE OF ARIZONA SOLICITATION #BPM0023
OPTIONAL SERVICES COST PROPOSAL FORM FOR OR,
Use this tab ONLY if you wish to be considered for a contract award in this category AND if you have submitted a res
your proposal. Evaluation shall be based on the AVERAGE OF ALL PERCENTAGES listed for each pricing model in this
INSTRUCTIONS: The offering of other services not included in the Oracle Mandatory tab is OPTIONAL. Pricing provide
master agreement, but states may consider this pricing when determining with which contractors to execute a partil
submit 1) a Maximum Markup on Reseller's Invoiced Cost, 2) a Minimum Discount Off Manufacturer's Suggested Re
YOUR USE OF PRICING MODELS (i.e. , you may not submit a Maximum Markup for half of the line items in this categi
Purchasing Entities can only use certain types of pricing models, submitting pricing for only one model may prevent
encouraged to submit pricing for both models if possible.
NOTE: Any formulas entered into this form have been entered as a COURTESY ONLY, and it is solely the responsibilit°
this spreadsheet --including mathematical calculations --are complete and accurate.
OPTIONAL SERVICES
Optional Discount- and/or Markup -based Services
1
[Enter service here. Insert rows as necessary.]
2
[Enter service here. Insert rows as necessary.]
3
[Enter service here. Insert rows as necessary.]
4
[Enter service here. Insert rows as necessary.]
5
[Enter service here. Insert rows as necessary.]
Optional Fixed Rate -based Services
6
[Enter service here. Insert rows as necessary.]
7
[Enter service here. Insert rows as necessary.]
8
[Enter service here. Insert rows as necessary.]
9
[Enter service here. Insert rows as necessary.]
10
[Enter service here. Insert rows as necessary.]
Packet Pg. 291
4.D.b
_LER (SVAR)
138
ACLE ONLY
ponse to all questions and criteria related to this category in
tab.
2d in this tab will not be evaluated for purposes of awarding a
-ipating addendum and which services to include. You may
tail Price (MSRP), or 3) both, but YOU MUST BE CONSISTENT IN
Dry and a Minimum Discount for the other half). As some
you from doing business with certain entities, and resellers are
y of each Offeror to ensure that all information entered into
MAXIMUM MARKUP MINIMUM DISCOUNT
OFF MANUFACTURER'S
ON RESELLER'S
INVOICED COST SUGGESTED RETAIL
PRICE (MSRP)
HOURLY RATE
$0.00
$0.00
$0.00
$0.00
$0.00
Packet Pg. 292
4.D.b
Best and Final 1
***
*** You may expand cells or add new
DOCUMENT NAME
DOCUMENT NAME
DOCUMENT NAME
DOCUMENT NAME
DOCUMENT NAME
Packet Pg. 293
4.D.b
Offer (BAFO) Change Log: BPM002338 - Software
Note: All Changes to your Original Bid Must be Documented in the C
rows, as necessary, but please DO NOT change the format of the Ch,
LOCATION (Ex. Page Number, Section Number, Exhibit Number, etc.)
[iloirwe
WaNGINGIN
i nCATinni
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Packet Pg. 294
4.D.b
Value -Added Reseller
;hange Log ***
ange Log. Please DO NOT add new columns. ***
BRIEF DESCRIPTION OF CHANGE
BRIEF DESCRIPTION OF CHANGE
BRIEF DESCRIPTION OF CHANGE
BRIEF DESCRIPTION OF CHANGE
BRIEF DESCRIPTION OF CHANGE
Packet Pg. 295
4.D.c
Washington State Department of
Am
Enterprise Services
PARTICIPATING ADDENDUM
NASPO VALUEPOINT
SOFTWARE VAR
Administered by the State of Arizona (hereinafter "Lead State")
MASTER AGREEMENT
Master Agreement No: CTR060021
CDW Government LLC
(hereinafter "Contractor")
and
State of Washington
(hereinafter "Participating State")
WASHINGTON MASTER CONTRACT NO.: 14922-02
This Participating Addendum for the above referenced Master Agreement ("Participating Addendum") is
made and entered into by and between the State of Washington acting by and through the Department
of Enterprise Services, a Washington State governmental agency ("Enterprise Services") and CDW
Government LLC, an Illinois LLC ("Contractor") and is dated and effective as of the date of the last
signature. This Participating Addendum shall terminate upon the expiration or the termination of the
Master Agreement, as amended, unless the Participating Addendum is terminated sooner in accordance
with the terms set forth herein.
RECITALS
A. Pursuant to Legislative authorization codified in RCW 39.26.060, Enterprise Services, on
behalf of the State of Washington, is authorized to participate in cooperative purchasing
agreements to develop master agreements to procure goods and/or services and to make
such competitively solicited and awarded contracts available to Washington state
agencies and designated eligible purchasers consistent with terms and conditions set
forth by Enterprise Services.
B. Enterprise Services timely provided public notice of the competitive solicitation process
conducted by the above -referenced lead state through Washington's Electronic Business
Solutions (WEBS) system.
C. The above -referenced Lead State, as part of its competitive solicitation process, evaluated
all responses to its procurement and identified Contractor as an apparent successful
bidder and awarded a Master Agreement to Contractor.
D. Enterprise Services has determined that participating in this Master Agreement is in the
best interest of the State of Washington.
PARTICIPATING ADDENDUM — No. 14922-02: SOFTWARE VAR Page 1
(Rev. 2022-09-06)
Packet Pg. 296
4.D.c
E. The purpose of this Participating Addendum is to enable eligible purchasers, as defined
herein, to utilize the Master Agreement as conditioned by this Participating Addendum.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises, covenants, and conditions set forth herein, the
parties hereto hereby agree as follows:
1. SCOPE: This Participating Addendum covers the competitive procurement for Software VAR led by the
State of Arizona for use by state agencies and other entities located in the Participating State
authorized by that state's statutes to utilize state contracts with the prior approval of the State's chief
procurement official.
2. PARTICIPATION: Use of specific NASPO ValuePoint cooperative contracts by agencies, political
subdivisions and other entities (including cooperatives) authorized by an individual state's statutes to
use state contracts are subject to the prior approval of the respective State chief procurement official.
Issues of interpretation and eligibility for participation are solely within the authority of the State chief
procurement official. Pursuant to this Participating Addendum, the Master Agreement may be utilized
by the following ("Purchasing Entities" or "Purchasers"):
(a) WASHINGTON STATE AGENCIES. All Washington state agencies, departments, offices, divisions,
boards, and commissions.
(b) WASHINGTON STATE INSTITUTIONS OF HIGHER EDUCATION (COLLEGES). Any the following specific
institutions of higher education in Washington:
■ State universities — i.e., University of Washington & Washington State University;
■ Regional universities — i.e., Central Washington University, Eastern Washington
University, & Western Washington University
■ Evergreen State College;
■ Community colleges; and
■ Technical colleges.
(c) MCUA PARTIES. The Master Agreement also may be utilized by any of the following types of
entities that have executed a Master Contract Usage Agreement (MCUA) with Enterprise
Services:
■ Political subdivisions (e.g., counties, cities, school districts, public utility districts,
ports) in the State of Washington;
■ Federal governmental agencies or entities;
■ Public -benefit nonprofit corporations (i.e., § 501(c)(3) nonprofit corporations that
receive federal, state, or local funding); and
■ Federally -recognized Indian Tribes located in the State of Washington.
By placing an order under this Participating Addendum, each Purchasing Entity agrees to be bound by
the terms and conditions of this Participating Addendum, including the Master Agreement. Each
Purchasing Entity shall be responsible for its compliance with such terms and conditions.
3. PARTICIPATING STATE MODIFICATIONS OR ADDITIONS TO MASTER AGREEMENT:
PARTICIPATING ADDENDUM —No.14922-02: SOFTWARE VAR Page 2
(Rev. 2022-09-06)
Packet Pg. 297
4.D.c
3.1. WASHINGTON'S ELECTRONIC BUSINESS SOLUTIONS (WEBS) SYSTEM: Within seven (7) days of
execution of this Participating Addendum, Contractor shall register in the Washington State
Department of Enterprise Services' Electronic Business Solutions (WEBS) System at WEBS.
Contractor shall ensure that all of its information therein is current and accurate and that,
throughout the term of the Master Agreement, Contractor shall maintain an accurate profile
in WEBS.
3.2. WASHINGTON'S STATEWIDE PAYEE DESK: To be paid for contract sales, Contractors must register
with Washington's Statewide Payee Desk. Washington state agencies cannot make
payments to a contractor until it is registered. Registration materials are available here:
Receiving Payment from the State.
3.3. CONTRACT SALES REPORTING: Contractor shall report total contract sales quarterly to
Enterprise Services, as set forth below.
(a) REPORTING. Contractor shall report quarterly Contract sales in Enterprise Services'
Contract Sales Reporting System. Enterprise Services will provide Contractor with a
login password and a vendor number.
(b) DATA. Each sales report must identify every authorized Purchasing Entity by name as
it is known to Enterprise Services and its total combined sales amount invoiced during
the reporting period (i.e., sales of an entire agency or political subdivision, not its
individual subsections). The "Miscellaneous" option may be used only with prior
approval by Enterprise Services. Upon request, Contractor shall provide contact
information for all authorized Purchasing Entities specified herein during the term of
this Participating Addendum. Refer sales reporting questions to the Primary Contact
set forth below. If there are no contract sales during the reporting period, Contractor
must report zero sales.
(c) DUE DATES FOR CONTRACT SALES REPORTING. Quarterly Contract Sales Reports must be
submitted electronically by the following deadlines for all sales invoiced during the
applicable calendar quarter:
QUARTER
FOR SALES MADE IN
CALENDAR QUARTER ENDING
MASTER CONTRACT SALES REPORT
DUE BY
PAST DUE
1
January 1— March 31
April 30
May 1
2
April 1—June 30
July 31
August 1
3
July 1— September 30
October 31
November 1
4
October 1— December 31
January 31
February 1
3.4. VENDOR MANAGEMENT FEE: Contractor shall pay to Enterprise Services a vendor management
fee ("VMF") of 1.25 percent on the purchase price for all contract sales (the purchase price
is the total invoice price less applicable sales tax) authorized bythis Participating Addendum.
(a) The sum owed by Contractor to Enterprise Services as a result of the VMF is calculated
as follows:
Amount owed to Enterprise Services = Total contract sales invoiced (not
including sales tax) x .0125.
PARTICIPATING ADDENDUM —No.14922-02: SOFTWARE VAR Page 3
(Rev. 2022-09-06)
Packet Pg. 298
4.D.c
The VMF must not be shown as a separate line item on any invoice unless
specifically requested and approved by Enterprise Services.
(b) Enterprise Services will invoice Contractor quarterly based on contract sales reported
by Contractor. Contractor shall not remit payment until it receives an invoice from
Enterprise Services. Contractor's VMF payment to Enterprise Services must reference
the following:
■ This Washington Master Contract No.: 14922-02
■ The NASPO Master Agreement No.: CTR060021
■ The year and quarter for which the VMF is being remitted, and
■ Contractor's name as set forth in this Contract, if not already included on the
face of the check.
(c) Contractor's failure accurately and timely to report total net sales, to submit timely
usage reports, or to remit timely payment of the VMF to Enterprise Services, may be
cause for Enterprise Services to suspend or terminate this Participating Addendum or
exercise any other remedies as provided by law.
(d) Enterprise Services reserves the right, upon execution of a contract amendment, to
increase, reduce, or eliminate the VMF for subsequent purchases.
(e) For purposes of the VMF, the parties agree that the initial management fee is included
in the pricing. Therefore, any increase or reduction of the management fee must be
reflected in contract pricing commensurate with the adjustment.
3.S. CONTRACTOR REPRESENTATIONS AND WARRANTIES: Contractor makes each of the following
representations and warranties as of the effective date of this Participating Addendum and
at the time any order is placed pursuant to the Master Contract. If, at the time of any such
order, Contractor cannot make such representations and warranties, Contractor shall not
process any orders and shall, within three (3) business days notify Enterprise Services, in
writing, of such breach.
(a) WAGE VIOLATIONS. Contractor represents and warrants that, during the term of this
Master Contract and the three (3) year period immediately preceding the award of
the Master Contract, it is not determined, by a final and binding citation and notice of
assessment issued by the Washington Department of Labor and Industries or through
a civil judgment entered by a court of limited or general jurisdiction, to be in willful
violation of any provision of Washington state wage laws set forth in RCW 49.46,
49.48, or 49.52.
(b) CIVIL RIGHTS. Contractor represents and warrants that Contractor complies with all
applicable requirements regarding civil rights. Such requirements prohibit
discrimination against individuals based on their status as protected veterans or
individuals with disabilities, and prohibit discrimination against all individuals based
on their race, color, religion, sex, sexual orientation, gender identity, or national
origin.
(C) EXECUTIVE ORDER 18-03 — WORKERS' RIGHTS (MANDATORY INDIVIDUAL ARBITRATION).
Contractor represents and warrants that Contractor does NOT require its employees,
as a condition of employment, to sign or agree to mandatory individual arbitration
PARTICIPATING ADDENDUM —No.14922-02: SOFTWAREVAR Page
(Rev. 2022-09-06)
Packet Pg. 299
4.D.c
clauses or class or collective action waivers. Contractor further represents and
warrants that, during the term of this Participation Agreement, Contractor shall not,
as a condition of employment, require its employees to sign or agree to mandatory
individual arbitration clauses or class or collective action waivers.
3.6. OCIO POLICY & SECURITY COMPLIANCE: Contractor represents and warrants, to the extent the
following applies to products provided under this participating addendum, that Contractor
shall use commercially reasonable efforts to provide applicable supporting documentation
and assist the Purchasing Entities with verifying that the products comply with the
Washington Office of the Chief Information Officer (OCIO) statewide information
technology policies and other local information technology policies as applicable to the
purchasing entity. Policies applicable to the Washington State Agencies are located on the
OCIO website at https://ocio.wa.gov//policies. Prior to final execution of a Washington
State Agency's order with a contractor, the contractor solution(s) may be subject to a
security design review performed by Washington Consolidated Technology Services to
ensure compliance with the State security policies.
3.7. COMPLIANCE WITH LAW; TAXES, LICENSES, & REGISTRATION: Contractor shall comply with
applicable law. Prior to making any sales hereunder, if Contractor is not already registered,
Contractor shall register to conduct business in the State of Washington and promptly
acquire and maintain all necessary licenses and registrations and pay all applicable taxes
and fees. In addition, for all sales to Purchasers in the State of Washington, if Contractor
does not currently do so, Contractor shall calculate, collect, and remit, as appropriate, the
applicable state and local sales tax on all invoices.
3.8. CONTRACTOR'S SALES AUTHORITY; PURCHASE ORDERS; & INVOICES:
(a) CONTRACTOR'S SALES AUTHORITY. Pursuant to this Participating Addendum,
Contractor is authorized to provide only those goods/services set forth in the
Master Agreement as conditioned by this Participating Addendum. Contractor
shall not represent to any Purchaser hereunder that it has any authority to sell
any other materials, supplies, services and/or equipment.
(b) INVOICES. Contractor must provide a properly completed invoice to Purchaser. All
invoices are to be delivered to the address indicated in the purchase order. Each
invoice must include the:
■ Washington Master Contract Number 14922-02;
■ Lead State Master Agreement Number CTR060021;
■ Contractor's statewide vendor registration number assigned by
the Washington State Office of Financial Management (OFM);
and
■ Applicable Purchaser's order number.
Invoices must be prominently annotated by the Contractor with all applicable
volume discount(s).
3.9 PRICING. T h e Prices for Software and Services shall be as specified in Schedule A, attached,
based on a markup of the Contractor's invoiced cost. Pricing shall not be based off a
discount off manufacturer's suggested retail price, which is inapplicable to this
participating addendum.
PARTICIPATING ADDENDUM —No.14922-02: SOFTWARE VAR Page 5
(Rev. 2022-09-06)
Packet Pg. 300
4.D.c
4. LEASE AGREEMENTS: Leasing or renting equipment is not allowed throughout the term of the Master
Agreement.
S. PRIMARY CONTACTS: The primary contact individuals for this Participating Addendum are as follows (or
their named successors):
Participating State
Attn: Ryan J Rensel
State of Washington
Washington Dept. of Enterprise Services
PO Box 41411
Olympia, WA 98504-1411
Tel: (360) 407-2218
Email: descontractsteamcypressC@des.wa.gov
Contractor
Attn: Heather Kohls
CDW Government LLC
230 N. Milwaukee Ave.
Vernon Hills IL 60061
Tel: (331) 231-8729
Email: Heather.Kohls@cdwg.com
6. SUBCONTRACTORS: Contractor shall perform the Master Agreement.
7. ORDERS: Unless the parties to the applicable purchase order agree in writing that another contract or
agreement applies to such order, any order placed by a Purchaser for goods/services available from
this Master Agreement shall be deemed to be a sale under (and governed by the prices and other
terms and conditions of) the Master Agreement as conditioned by this Participating Addendum.
8. GENERAL:
8.1. INTEGRATED AGREEMENT; MODIFICATION. This Participating Addendum and Master Agreement,
together with its exhibits, set forth the entire agreement and understanding of the Parties
with respect to the subject matter and supersedes all prior negotiations and
representations. This Participating Addendum may not be modified except in writing signed
by the Parties.
8.2. AUTHORITY. Each party to this Participating Addendum, and each individual signing on behalf
of each party, hereby represents and warrants to the other that it has full power and
authority to enter into this Participating Addendum and that its execution, delivery, and
performance of this Participating Addendum has been fully authorized and approved, and
that no further approvals or consents are required to bind such party.
8.3. ELECTRONIC SIGNATURES. An electronic signature or electronic record of this Participating
Addendum or any other ancillary agreement shall be deemed to have the same legal effect
as delivery of an original executed copy of this Participating Addendum or such other
ancillary agreement for all purposes.
8.4. COUNTERPARTS. This Participating Addendum may be executed in one or more counterparts,
each of which shall be deemed an original, and all of which counterparts together shall
constitute the same instrument which may be sufficiently evidenced by one counterpart.
Execution of this Participating Addendum at different times and places by the parties shall
PARTICIPATING ADDENDUM —No.14922-02: SOFTWARE VAR
(Rev. 2022-09-06)
Page 6
Packet Pg. 301
4.D.c
not affect the validity thereof so long as all the parties hereto execute a counterpart of this
Participating Addendum.
8.5. PROFESSIONAL SERVICES. Professional Services resold by Contractor and performed by
Publishers are not considered subcontracted services.
For purposes of this section, "Professional Services" include but are not limited to
consulting, extended warranty service by manufacturers, or other services as described
generally in the Agreement as more particular described in a Statement of Work or SOW
performed by the Contractor or its subcontractor or sold by the Contractor as a distributor
or sales agent or its subcontractors.
8.6 SOFTWARE LICENSES. The Participating Entity's rights in Software, including SaaS, will be
governed by the Publisher's standard end user license agreement, unless the Participating
Entity has negotiated alternative terms directly with the Publisher in which case the
alternative terms will govern.
EXECUTED as of the date and year first above written.
STATE OF WASHINGTON
DEPARTMENT OF ENTERPRISE SERVICES
By:
Elena McGrew
Its: Statewide Enterprise Procurement Manager
Date: 1 /8/2024
CDWGOVERNMENT LLC
AN ILLINOIs LLC
By: 3 H-4k,
Type Name
Its: Sr, Manager, Program Management
Date: Jan 5, 2024
PARTICIPATING ADDENDUM —No. 14922-02: SOFTWARE VAR
(Rev. 2022-09-06)
Page 7
Packet Pg. 302
4.D.c
NASPO VALUEPOINT SOFTWARE VALUE-ADDED RESELLER (SVAR)
STATE OF ARIZONA SOLICITATION #BPM002338
MANDATORY COST PROPOSAL FORM FOR ALL PUBLISHERS EXCEPT MICROSOFT AND ORACLE
PUBLISHERS
STATE OF WASHINGTON
MAXIMUM MARKUP
ON RESELLER'S
INVOICED COST
MINIMUM DISCOUNT
OFF MANUFACTURER'S
SUGGESTED RETAIL
PRICE (MSRP)
Tier I Publishers (Key Itemized Publishers)
1
ADOBE
2.25%
2
CATECHNOLOGIES
1.50%
3
CISCO
2.25%
4
COMMVAULT
2.25%
5
IBM
2.25%
6
RED HAT
2.25%
7
SPLUNK
2.25%
8
TABLEAU
1.50%
9
VEEAM
2.25%
10
VMWARE
2.25%
Tier II Publishers (Other Itemized Publishers)
11
AUTODESK
3.45%
12
BARRACUDA NETWORKS
2.75%
13
BMC SOFTWARE
2.75%
14
CH ECK POI NT SOFTWARE
2.75%
15
CHERWELL
1.50%
16
CITRIX
2.25%
17
CHATSWORTH PRODUCTS (CPI)
1.50%
18
CROWDSTRIKE
2.75%
19
DELL
2.75%
20
DELPHIX
1.50%
21
DOCUSIGN
2.75%
22
DYNATRACE
1.50%
23
FORCEPOINT
2.75%
24
FORTINET
2.75%
25
GOOGLE
2.75%
26
INFORMATICA
1.50%
27
IVANTI
2.75%
28
KNOWBE4
2.75%
29
MCAFEE
2.25%
30
MICRO FOCUS
2.75%
31
MULESOFT
1.50%
32
NETMOTION
2.75%
33
OKTA
2.75%
34
OPENTEXT
1.50%
35
PROGRESS SOFTWARE
1.50%
36
PROOFPOINT
2.75%
37
QUEST SOFTWARE
2.75%
38
RAPID7
1.50%
39
RSA SECURITY
2.75%
40
SALESFORCE
3.45%
41
SAP
1.50%
42
SOLARWINDS
2.75%
43
SOPHOS
2.75%
44
SPILLMAN
2.75%
45
SYMANTEC
2.75%
46
TENABLE
2.75%
47
TREND MICRO
2.75%
48
VARONIS
2.75%
49
VERITAS
2.75%
50
ZOHO
1.50%
Non -itemized Publishers
51
All other publishers
3.45%
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4.D.c
HOURLY RATE
52
Reseller Services
53
Asset management
no charge
54
Solutions architect
no charge
55
Senior solutions architect
no charge
56
Program engagement manager
$210.00
57
Project leader
no charge
58
Project manager
$190.00
59
Senior project manager
$205.00
60
All other in -scope reseller services
no charge
* For additional information on the services represented herein please refer to Attachment
4_Supplement 1 of 1_Supplemental Information for Pricing.
*To the extent required as Mandatory
Asset Management: As described in Section 2-A Scope of Work 2.3.4, Solutions architect: As described in Section 2-A Scope of Work 2.3.4, provides
customer support, explaining and helping determine the best acquisition method fortheir needs, including multi -program cost analysis comparisons.
Solutions and Senior Solutions architect: As described in Section 2-A Scope of Work 2.3.4, provides analysis and recommendations on software
infrastructure and how to maximize software spend through the appropriate licensing program and vendor selection
Project Leader: As described in Section 2-A Scope of Work 2.3.4, leads in providing consultation, acting as a liaison, negotiating costs, and other
mandatory basic services.
Packet Pg. 304
4.D.c
NASPO VALUEPOINT SOFTWARE VALUE-ADDED RESELLER (SVAR)
STATE OF ARIZONA SOLICITATION #BPM002338
OPTIONAL SERVICES COST PROPOSAL FORM FOR ALL PUBLISHERS EXCEPT MICROSOFTAND ORACLE
OPTIONAL SERVICES
li6 1 0
STATE OF WASHINGTO
MAXIMUM MARKUP
ON RESELLER'S
INVOICED COST
MINIMUM DISCOUNT
OFF MANUFACTURER'S
SUGGESTED RETAIL
PRICE (MSRP)
1
Optional Discount- and/or Markup -based Services
1
Publisher Delivered Services
26.25%
2
Third Party Delivered Services
26.25%
HOURLY RATE
Optional Fixed Rate -based Services
6
Associate Consulting Engineer
$125.00
7
Consulting Engineer
$185.00
8
Senior Consulting Engineer
$205.00
9
Technical Lead/ Principal Consulting Engineer
$225.00
10
Enterprise Consulting Architect
$225.00
11
Business Consulting Architect
$225.00
12
Project Administrator
$145.00
13
Project Manager
$190.00
14
Senior Project Manager
$205.00
15
Enterprise Project Manager, PMO Lead
$210.00
16
Program Manager
$210.00
17
Technical Architect
$295.00
18
ServiceNow Engagement Manager
$213.00
19
ServiceNow Program Manager
$221.00
20
ServiceNow Advisory Services
$234.00
21
ServiecNow Principal Consultant
$276.00
22
ServiceNow Organizational Change Managerment Consultant
$276.00
23
ServiceNow Integration Expert
$225.00
24
ServiceNow Quality Assurance Expert
$187.00
25
ServiceNow Solution Architect
$225.00
26
ServiceNow Technical Consultant
$200.00
27
ServiceNow Trainer
$225.00
28
Digital Velocity Head of E&O
$270.00
29
Digital Velocity O-CTO - Principal Consultant
$250.00
30
Digital Velocity Hybrid Cloud Architect
$230.00
31
Digital Velocity Hybrid Cloud Engineer
$194.00
32
Digital Velocity DevOps Architect
$230.00
33
Digital Velocity DevOps Engineer
$200.00
34
Digital Velocity Enterprise Architect
$230.00
35
Digital Velocity Senior Software Engineer
$200.00
36
Digital Velocity Solutions Architect
$230.00
37
Digital Velocity Solutions Engineer
$200.00
38
Digital Velocity Technical Program Consultant
$200.00
39
Digital Velocity Technical Project Manager
$175.00
40
ITAsset Management Project -Based Engagement
Custom SOW
41
ITAsset Management Maturity Assessment
Custom SOW
42
ITAsset Management Technology Solutions
Custom SOW
43
ITAsset Management Ongoing Solutions
Custom SOW
* For additional information on the services represented herein please refer to Attachment
4_Supplement 1 of 1-Supplemental Information for Pricing.
Packet Pg. 305
4.D.c
NASPO VALUEPOINT SOFTWARE VALUE-ADDED RESELLER (SVAR)
STATE OF ARIZONA SOLICITATION #BPM002338
MANDATORY COST PROPOSAL FORM FOR MICROSOFT ONLY
SUBCATEGORY
STATE OF WASHINGTON
MAXIMUM MARKUP
ON RESELLER'S
INVOICED COST
MINIMUM DISCOUNT
OFF MANUFACTURER'S
SUGGESTED RETAIL
PRICE (MSRP)
Itemized Microsoft Offerings
1
EMS E5
1.75%
2
G1
1.75%
3
G2
1.75%
4
G3
1.75%
5
G5
1.75%
6
Govt E4
1.75%
7
Advanced Threat Protection
1.75%
8
Power BI
1.75%
9
Exchange Online
1.75%
10
Kiosk F3 Now
1.75%
11
Dynamics
1.75%
12
PowerApps
1.75%
13
Project Online
1.75%
14
Azure
1.75%
All Other Microsoft Offerings
15
SaaS
1.75%
16
On -Premise
1.75%
Resold In -scope Professional Services
17
Ongoing maintenance & support services not included in software license agreement
11.25%
18
Deployment services
11.25%
19
Architectural design services
11.00%
20
Training deployment services
11.00%
21
All other resold in -scope professional services
11.00%
HOURLY RATE
In -scope Reseller Services
22
Asset management
no charge
23
Solutions architect
no charge
24
Senior solutions architect
no charge
25
Program engagement manager
$210.00
26
Project leader
no charge
27
Project manager
$190.00
28
Senior project manager
$205.00
29
All other in -scope reseller services
no charge
* For additional information on the services represented herein please refer to Attachment
4_Supplement 1 of 1_Supplemental Information for Pricing.
*To the extent required as Mandatory
Asset Management: As described in Section 2-A Scope of Work 2.3.4, Solutions architect: As described in Section 2-A Scope of Work 2.3.4, provides
customer support, explaining and helping determine the best acquisition method fortheir needs, including multi -program cost analysis comparisons.
Solutions and Senior Solutions architect: As described in Section 2-A Scope of Work 2.3.4, provides analysis and recommendations on software
infrastructure and how to maximize software spend through the appropriate licensing program and vendor selection
Project Leader: As described in Section 2-A Scope of Work 2.3.4, leads in providing consultation, acting as a liaison, negotiating costs, and other
mandatory basic services.
Packet Pg. 306
4.D.c
NASPO VALUEPOINT SOFTWARE VALUE-ADDED RESELLER (SVAR)
STATE OF ARIZONA SOLICITATION #BPM002338
OPTIONAL SERVICES COST PROPOSAL FORM FOR MICROSOFT ONLY
OPTIONAL SERVICES
STATE OF WASHINGTO
MAXIMUM MARKUP
ON RESELLER'S
INVOICED COST
MINIMUM DISCOUNT
OFF MANUFACTURER'S
SUGGESTED RETAIL
PRICE (MSRP)
Optional Discount- and/or Markup -based Services
1
Publisher Delivered Services
26.25%
2
Third Party Delivered Services
26.25%
HOURLY RATE
Optional Fixed Rate -based Services
6
Associate Consulting Engineer
$125.00
7
Consulting Engineer
$185.00
8
Senior Consulting Engineer
$205.00
9
Technical Lead/ Principal Consulting Engineer
$225.00
10
Enterprise Consulting Architect
$225.00
11
Business Consulting Architect
$225.00
12
Project Administrator
$145.00
13
Project Manager
$190.00
14
Senior Project Manager
$205.00
15
Enterprise Project Manager, PMO Lead
$210.00
16
Program Manager
$210.00
17
Technical Architect
$295.00
18
IT Asset Management Project -Based Engagement
Custom SOW
19
ITAsset Management Maturity Assessment
Custom SOW
20
IT Asset Management Technology Solutions
Custom SOW
21
IT Asset Management Ongoing Solutions
Custom SOW
* For additional information on the services represented herein please refer to Attachment
4_Supplement 1 of 1_Supplemental Information for Pricing.
Packet Pg. 307
Agreement Number:
DES Use Only
MASTER CONTRACT USAGE AGREEMENT
This Master Contract Usage Agreement (the "Agreement") is made pursuant to Chapter 39.34 of
the Revised Code of Washington, and other applicable laws, by and between the state of
Washington (the "State"), actin by an t rough the partment of Enterprise Services ("DES"),
an agency of the State, and ,
Eu ty R'n�ue
a state agency, or local or federal agency or ntity, or public benefit nonprofit corporation, or any
tribe located in the State ("Buyer').
1. Purpose: The purpose of die Agreement is to establish the terms and conditions for when
Buyer purchases or acquires goods and services for its direct use under contracts entered into
by DES that permit such use ("Master Contracts").
2. Duration: This Agreement will become effective on date of execution, and will continue in
full force and effect until thirty (30) clays following receipt of written notice from either party
cancelling this Agreement.
3. Agreement Contact Information: Contact person to whom contract documents and related
communications are to be mailed or faxed.
Organization Name:
Tax Identification Number: 1-0 I00
Unified Business Identifier Requtredfor Nwr Profit
Contact Name:
Title:
f l�
O 7
Address: ��
City: l
State:
zip:
Phone Number:
Email Address: 0-00-4l (l / AQIZ
4. Cancellation of A reement: This agreement`e'an be terminated by either party upon 30 days
written notice provided to DES at:
Email to: mcua@des.wa.gov OR Mail to: WA Dept of Enterprise Services
Attn: ACCO
P.O. Box 41409
Olympia, WA 98504-1401
5. Financial Responsibility: Buyer will deal directly with the Master Contract contractor,
supplier, or service supplier ("Contractor") for any purchases Buyer makes pursuant to this
Agreement and under a Master Contract. DES does not accept any responsibility, financial
or otherwise, for any purchase Buyer makes under a Master Contract.
Packet Pg. 308
4.D.d
Agreement Number:
DES Use 0uh,
6. Compliance with Other Laws: Each of the parties will comply with all applicable federal,
state, and local laws and regulations governing its own purchases.
7. Master Contract Audits: Bayer agrees to cooperate with DES, the Office of the State
Auditor, federal officials, or any third party authorized by law, rule, regulation or contract, in
any audit conducted by such party related to any Master Contract(s) that Buyer has made
purchases from pursuant to this Agreement, including providing records related to any
purchase from a Master Contract. In addition, Buyer agrees to provide, upon request from
DES, documentation to confirm its eligibility to use Master Contracts.
8. Dispute Resolution: If there are any disputes between Buyer and a Contractor, Buyer agrees
to (a) provide DES written notice of the nature of the dispute; and (b) unless otherwise
provided in the Master Contract or as set forth below, work in good faith with the Contractor
to resolve the dispute without the involvement of DES. DES may, upon request, review and
assist in the resolution of a dispute, and if DES chooses to do so, the Buyer will cooperate
with DES in that resolution process.
In its sole discretion, DES may, but is not obligated to, upon written notice to Buyer, resolve
disputes with a Contractor on behalf of Buyer and all other state, local, and federal agencies,
local governments, and public benefit nonprofit corporations with similar or related disputes
with such Contractor.
9, No Separate Entity: No separate legal or administrative entity is intended to be creates by, or
for the administrat'on of, this Agreement.
10. Hold Harmless: Each party agrees to defend, indemnify, and hold the ot.zer party harmless
from any claim arising from such party's sole negligent, reckless, or willful misconduct.
11, Entire Agreement: This Agreement sets forth the entire agreement between the parties, and
supersedes any other prior written agreements between the parties, with respect to the subject
matter hereof.
IN WITNESS WHEREOF the parties having read this Agreement, agree to A in each and every
particular, and have executed A below.
APPROVED
WASHINGTON STATE
DEPARTMENT OF ENTERPRISE SERVICES
Entity Name
Signature
Farrel; Presnell, Acting As4'stant Director
Name/ -1tle
el
Date
2
Dat
APPROVED
Packet Pg. 309
4.E
ECONOMIC AND COMMUNITY DEVELOPMENT DEPARTMENT
Kurt Hanson, AICP, EDFP
220 Fourth Avenue South
KENT Kent, WA 98032
WASHINGTON 253-856-5454
DATE: February 4, 2025
TO: Kent City Council - Committee of the Whole
SUBJECT: Appointments to the Lodging Tax Advisory Committee -
Appoint
MOTION: I move to appoint Gaila Haas to the Lodging Tax Advisory
Committee for a 3-year term starting on January 1, 2025 and ending
December 31, 2027; and to appoint Jim Moran to the Lodging Tax Advisory
Committee, for a 3-year team starting April 4, 2025 and ending April 3,
2027.
SUMMARY: All licensed hospitality businesses providing overnight accommodations
collect lodging taxes payable to the state. Municipalities may elect to have a 1%
share of these revenues returned to them in order promote business or leisure
travel within their jurisdiction. They are then required to establish an advisory
group to assist in making decisions about how to spend those funds. This advisory
committee should consist of eight individuals, four representing tax generators
(i.e., hotel/motel, bed and breakfast, or campground operators) and four
representing organizations who might utilize the funds, (e.g., business and industry
associations, downtown revitalization groups, and municipal economic development
entities). Appointees to the committee may serve two consecutive three-year
terms.
The City's Lodging Tax Advisory Committee (LTAC) is made up of five members
who are appointed by the City Council. There are three vacant seats on the LTAC.
Two of the five are hoteliers, and the other three represent organizations who aim
to draw visitors and travel -related spending to the City.
In May 2019, Gaila Haas took over the term of Barbara Smith, previous Executive
Director of the Kent Downtown Partnership, when she assumed the leadership role
at that organization.
KCC 2.50.060(G)(1) provides, "If a member was appointed to an inaugural term
that was less than three years in length, then that member shall be permitted to
serve two consecutive three-year terms after the inaugural term expires."
Haas served less than three years in Smith's vacated position, began a first full
term on January 1, 2022 and thus is eligible to serve a second three year term
Packet Pg. 310
4.E
without hiatus on the LTAC. Haas has expressed that she is willing to continue in
this role.
Jim Moran completed the term vacated by Andrew Huchison upon his retirement in
April of 2024, and has likewise expressed that he wishes to continue serving on the
committee.
With multiple vacant positions among both categories of committee seat, the ECD
Director and staff recommend Haas' reappointment to the LTAC for a 2nd full term,
and Moran's appointment for his first full term.
BUDGET IMPACT: None.
SUPPORTS STRATEGIC PLAN GOAL:
Inclusive Community - Embracing our diversity and advancing equity through genuine community
engagement.
Packet Pg. 311
4.F
PARKS, RECREATION AND COMMUNITY SERVICES
DEPARTMENT
4^4� Julie Parascondola, CPRE, Director
•
KENT 220 Fourth Avenue South
WASHI NGTON Kent, WA 98032
253-856-5100
DATE: February 4, 2025
TO: Kent City Council - Committee of the Whole
SUBJECT: Consultant Services Agreement with MacLeod Reckord, PLLC
- Authorize
MOTION: I move to authorize the Mayor to sign the Consultant Services
Agreement with MacLeod Reckord PLLC., subject to final terms and
conditions acceptable to the Parks Director and City Attorney.
SUMMARY: Kent Parks is pursuing extension of the Green River Trail to complete a
non -motorized connection between the Foster Park Trailhead and South 259th
Street. This work will complete another missing link in the Green River Trail. To
date, work has progressed to 30% preliminary design. The City and Union Pacific
Railroad have confirmed the preferred alignment for the trail should be co -located
with the road beneath the existing trestle on South 259th Street. This consultant
services agreement will provide for 100% design plans for construction. This work
is being funded by King County Parks Levy Funds.
BUDGET IMPACT: None.
SUPPORTS STRATEGIC PLAN GOAL:
Innovative Government - Delivering outstanding customer service, developing leaders, and
fostering innovation.
Evolving Infrastructure - Connecting people and places through strategic investments in physical
and technological infrastructure.
Inclusive Community - Embracing our diversity and advancing equity through genuine community
engagement.
ATTACHMENTS:
1. ConsultantServicesAgreement-Over20K (PDF)
Packet Pg. 312
4.F.a
KENT
WISH IN c r o n
CONSULTANT SERVICES AGREEMENT
between the City of Kent and
MacLeod Reckord PLLC
THIS AGREEMENT is made between the City of Kent, a Washington municipal corporation (hereinafter
the "City"), and MacLeod Reckord PLLC organized under the laws of the State of Washington, located and
doing business at 110 Prefontaine Place South, Suite 600, Seattle, WA 98104 (hereinafter the "Consultant").
I. DESCRIPTION OF WORK.
The Consultant shall perform the following services for the City in accordance with the following
described plans and/or specifications:
As described in the attached exhibit A, incorporated herein, consultant shall provide 100%
design plans and specification for the Green River Trail alignment at the Milwaukee II Levee
Improvements project located at South 2591h Street near Foster Park (UPRR Mile Post 166.08)
The Consultant further represents that the services furnished under this Agreement will be performed
in accordance with generally accepted professional practices within the Puget Sound region in effect at the
time those services are performed.
II. TIME OF COMPLETION. The parties agree that work will begin on the tasks described in
Section I above immediately upon the effective date of this Agreement. The Consultant shall complete the
work described in Section I by 12/31/2025.
III. COMPENSATION.
A. The City shall pay the Consultant, based on time and materials, an amount not to exceed
$570,797.29, for the services described in this Agreement. This is the maximum amount to
be paid under this Agreement for the work described in Section I above, and shall not be
exceeded without the prior written authorization of the City in the form of a negotiated and
executed amendment to this agreement. The Consultant agrees that the hourly or flat rate
charged by it for its services contracted for herein shall remain locked at the negotiated rates
throughout the term of this Agreement. The Consultant's billing rates shall be as delineated
in Exhibit A.
B. The Consultant shall submit monthly payment invoices to the City for work performed, and a
final bill upon completion of all services described in this Agreement. The City shall provide
payment within forty-five (45) days of receipt of an invoice. If the City objects to all or any
portion of an invoice, it shall notify the Consultant and reserves the option to only pay that
portion of the invoice not in dispute. In that event, the parties will immediately make every
effort to settle the disputed portion.
C. Card Payment Program. The Consultant may elect to participate in automated credit card
payments provided for by the City and its financial institution. This Program is provided as an
alternative to payment by check and is available for the convenience of the Consultant. If the u
Consultant voluntarily participates in this Program, the Consultant will be solely responsible 430
a
CONSULTANT SERVICES AGREEMENT - 1
(Over $20,000) Packet Pg. 313
4.F.a
for any fees imposed by financial institutions or credit card companies. The Consultant shall
not charge those fees back to the City.
IV. INDEPENDENT CONTRACTOR. The parties intend that an Independent Contractor -
Employer Relationship will be created by this Agreement. By their execution of this Agreement, and in
accordance with Ch. 51.08 RCW, the parties make the following representations:
A. The Consultant has the ability to control and direct the performance and details of its
work, the City being interested only in the results obtained under this Agreement.
B. The Consultant maintains and pays for its own place of business from which the
Consultant's services under this Agreement will be performed.
C. The Consultant has an established and independent business that is eligible for a
business deduction for federal income tax purposes that existed before the City
retained the Consultant's services, or the Consultant is engaged in an independently
established trade, occupation, profession, or business of the same nature as that
involved under this Agreement.
D. The Consultant is responsible for filing as they become due all necessary tax
documents with appropriate federal and state agencies, including the Internal Revenue
Service and the state Department of Revenue.
E. The Consultant has registered its business and established an account with the state
Department of Revenue and other state agencies as may be required by the
Consultant's business, and has obtained a Unified Business Identifier (UBI) number
from the State of Washington.
F. The Consultant maintains a set of books dedicated to the expenses and earnings of its
business.
V. TERMINATION. Either party may terminate this Agreement, with or without cause, upon
providing the other party thirty (30) days written notice in accordance with Section XVI(D). After
termination, the City may take possession of all records and data within the Consultant's possession
pertaining to this project, which may be used by the City without restriction. If the City's use of the
Consultant's records or data is not related to this project, it shall be without liability or legal exposure to the
Consultant.
VI. FORCE MA)EURE. Neither party shall be liable to the other for breach due to delay or failure
in performance resulting from acts of God, acts of war or of the public enemy, riots, pandemic, fire, flood,
or other natural disaster or acts of government ('force majeure event"). Performance that is prevented or
delayed due to a force majeure event shall not result in liability to the delayed party.
If any future performance is prevented or delayed by a force majeure event, the party whose
performance is prevented or delayed shall promptly notify the other party of the existence and nature of
the force majeure event causing the prevention or delay in performance. Any excuse from liability shall be
effective only to the extent and duration of the force majeure event causing the prevention or delay in
performance and, provided, that the party prevented or delayed has not caused such event to occur and
continues to use diligent, good faith efforts to avoid the effects of such event and to perform the obligation.
Notwithstanding other provisions of this section, the Consultant shall not be entitled to, and the City
shall not be liable for, the payment of any part of the contract price during a force majeure event, or any
costs, losses, expenses, damages, or delay costs incurred by the Consultant due to a force majeure event.
Performance that is more costly due to a force majeure event is not included within the scope of this Force
Majeure provision.
If a force majeure event occurs, the City may direct the Consultant to restart any work or
performance that may have ceased, to change the work, or to take other action to secure the work or the
CONSULTANT SERVICES AGREEMENT - 2
(Over $20,000) Packet Pg. 314
4.F.a
project site during the force majeure event. The cost to restart, change, or secure the work or project site
arising from a direction by the City under this clause will be dealt with as a change order, except to the
extent that the loss or damage has been caused or exacerbated by the failure of the Consultant to fulfill its
obligations under this Agreement. Except as expressly contemplated by this section, all other costs will be
borne by the Consultant.
VII. DISCRIMINATION. In the hiring of employees for the performance of work under this
Agreement or any subcontract, the Consultant, its subcontractors, or any person acting on behalf of the
Consultant or subcontractor shall not, by reason of race, religion, color, sex, age, sexual orientation, national
origin, or the presence of any sensory, mental, or physical disability, discriminate against any person who
is qualified and available to perform the work to which the employment relates. The Consultant shall execute
the attached City of Kent Non -Discrimination Policy Declaration and comply with City Administrative
Policy 1.2.
VIII. INDEMNIFICATION. The Consultant shall defend, indemnify and hold the City, its officers,
officials, employees, agents and volunteers harmless from any and all claims, injuries, damages, losses or
suits, including all legal costs and attorney fees, arising out of or in connection with the Consultant's
performance of this Agreement, except for that portion of the injuries and damages caused by the City's
negligence.
The City's inspection or acceptance of any of the Consultant's work when completed shall not be
grounds to avoid any of these covenants of indemnification.
Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115,
then, in the event of liability for damages arising out of bodily injury to persons or damages to property
caused by or resulting from the concurrent negligence of the Consultant and the City, its officers, officials,
employees, agents and volunteers, the Consultant's duty to defend, indemnify, and hold the City harmless,
and the Consultant's liability accruing from that obligation shall be only to the extent of the Consultant's
negligence.
IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE INDEMNIFICATION
PROVIDED HEREIN CONSTITUTES THE CONSULTANT'S WAIVER OF IMMUNITY UNDER INDUSTRIAL
INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSES OF THIS INDEMNIFICATION. THE PARTIES
FURTHER ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTIATED THIS WAIVER.
In the event the Consultant refuses tender of defense in any suit or any claim, if that tender was
made pursuant to this indemnification clause, and if that refusal is subsequently determined by a court
having jurisdiction (or other agreed tribunal) to have been a wrongful refusal on the Consultant's part, then
the Consultant shall pay all the City's costs for defense, including all reasonable expert witness fees and
reasonable attorneys' fees, plus the City's legal costs and fees incurred because there was a wrongful refusal
on the Consultant's part.
The provisions of this section shall survive the expiration or termination of this Agreement
IX. INSURANCE. The Consultant shall procure and maintain for the duration of the Agreement,
insurance of the types and in the amounts described in Exhibit B attached and incorporated by this reference.
X. EXCHANGE OF INFORMATION. The City will provide its best efforts to provide reasonable
accuracy of any information supplied by it to the Consultant for the purpose of completion of the work under
this Agreement.
XI. OWNERSHIP AND USE OF RECORDS AND DOCUMENTS. Original documents, drawings,
designs, reports, or any other records developed or created under this Agreement shall belong to and
become the property of the City. All records submitted by the City to the Consultant will be safeguarded by
the Consultant. The Consultant shall make such data, documents, and files available to the City upon the
City's request. The Consultant acknowledges that the City is a public agency subject to the Public Records
Act codified in Chapter 42.56 of the Revised Code of Washington. As such, the Consultant agrees to
cooperate fully with the City in satisfying the City's duties and obligations under the Public Records Act. The
CONSULTANT SERVICES AGREEMENT - 3
(Over $20,000) Packet Pg. 315
4.F.a
City's use or reuse of any of the documents, data, and files created by the Consultant for this project by
anyone other than the Consultant on any other project shall be without liability or legal exposure to the
Consultant. r
XII. CITY'S RIGHT OF INSPECTION. Even though the Consultant is an independent contractor
with the authority to control and direct the performance and details of the work authorized under this
Agreement, the work must meet the approval of the City and shall be subject to the City's general right of
inspection to secure satisfactory completion.
XIII. WORK PERFORMED AT CONSULTANT'S RISK. The Consultant shall take all necessary
precautions and shall be responsible for the safety of its employees, agents, and subcontractors in the
performance of the contract work and shall utilize all protection necessary for that purpose. All work shall
be done at the Consultant's own risk, and the Consultant shall be responsible for any loss of or damage to
materials, tools, or other articles used or held for use in connection with the work.
XIV. MISCELLANEOUS PROVISIONS.
A. Recyclable Materials. Pursuant to Chapter 3.80 of the Kent City Code, the City requires its
contractors and consultants to use recycled and recyclable products whenever practicable. A price
preference may be available for any designated recycled product.
B. Non -Waiver of Breach. The failure of the City to insist upon strict performance of any of the
covenants and agreements contained in this Agreement, or to exercise any option conferred by this
Agreement in one or more instances shall not be construed to be a waiver or relinquishment of those
covenants, agreements or options, and the same shall be and remain in full force and effect.
C. Resolution of Disputes and Governing. This Agreement shall be governed by and
construed in accordance with the laws of the State of Washington. If the parties are unable to settle any
dispute, difference or claim arising from the parties' performance of this Agreement, the exclusive means
of resolving that dispute, difference or claim, shall only be by filing suit exclusively under the venue, rules
and jurisdiction of the King County Superior Court, King County, Washington, unless the parties agree in
writing to an alternative dispute resolution process. In any claim or lawsuit for damages arising from the
parties' performance of this Agreement, each party shall pay all its legal costs and attorney's fees incurred
in defending or bringing such claim or lawsuit, including all appeals, in addition to any other recovery or
award provided by law; provided, however, nothing in this paragraph shall be construed to limit the City's
right to indemnification under Section VIII of this Agreement.
D. Written Notice. All communications regarding this Agreement shall be sent to the parties at
the addresses listed on the signature page of the Agreement, unless notified to the contrary. Any notices
or communications required or permitted by this Agreement must be in writing and given via: (i) personal
delivery; (ii) overnight courier; (iii) registered or certified mail; (iv) facsimile or email to the addresses listed
on the signature page of the Agreement, unless otherwise specified. Any such notice or communication will
be deemed to have been given on (i) the day it was personally delivered; (ii) one working day after sent by
overnight courier; (iii) three days after the date of mailing by registered or certified mail; (iv) the day it is
faxed or sent electronically, provided that the sender has received a confirmation of the fax or electronic
transmission.
E. Assignment. Any assignment of this Agreement by either party without the written consent
of the non -assigning party shall be void. If the non -assigning party gives its consent to any assignment,
the terms of this Agreement shall continue in full force and effect and no further assignment shall be made
without additional written consent.
F. Modification. No waiver, alteration, or modification of any of the provisions of this Agreement
shall be binding unless in writing and signed by a duly authorized representative of the City and the
Consultant.
G. Entire Agreement. The written provisions and terms of this Agreement, together with any
Exhibits attached hereto, shall supersede all prior verbal statements of any officer or other representative
CONSULTANT SERVICES AGREEMENT - 4
(Over $20,000) Packet Pg. 316
4.F.a
of the City, and such statements shall not be effective or be construed as entering into or forming a part of
or altering in any manner this Agreement. All of the above documents are hereby made a part of this
Agreement. However, should any language in any of the Exhibits to this Agreement conflict with any
language contained in this Agreement, the terms of this Agreement shall prevail.
H. Compliance with Laws. The Consultant agrees to comply with all federal, state, and municipal
laws, rules, and regulations that are now effective or in the future become applicable to the Consultant's
business, equipment, and personnel engaged in operations covered by this Agreement or accruing out of
the performance of those operations.
I. Public Records Act. The Consultant acknowledges that the City is a public agency subject to
the Public Records Act codified in Chapter 42.56 of the Revised Code of Washington and documents, notes,
emails, and other records prepared or gathered by the Consultant in its performance of this Agreement may
be subject to public review and disclosure, even if those records are not produced to or possessed by the
City of Kent. As such, the Consultant agrees to cooperate fully with the City in satisfying the City's duties
and obligations under the Public Records Act.
J. City Business License Required. Prior to commencing the tasks described in Section I,
Contractor agrees to provide proof of a current city of Kent business license pursuant to Chapter 5.01 of the
Kent City Code.
CONSULTANT SERVICES AGREEMENT - 5
(Over $20,000) Packet Pg. 317
4.F.a
K. Counterparts and Signatures by Fax or Email. This Agreement may be executed in any
number of counterparts, each of which shall constitute an original, and all of which will together constitute
this one Agreement. Further, upon executing this Agreement, either party may deliver the signature page
to the other by fax or email and that signature shall have the same force and effect as if the Agreement
bearing the original signature was received in person.
IN WITNESS, the parties below execute this Agreement, which shall become effective on
the last date entered below. All acts consistent with the authority of this Agreement and prior
to its effective date are ratified and affirmed, and the terms of the Agreement shall be deemed
to have applied.
CONSULTANT:
By:
Print Name:
Its
DATE:
NOTICES TO BE SENT TO:
CONSULTANT:
Connie Reckord
MacLeod Reckord
110 Prefontaine PI.
Seattle, WA 98104
CITY OF KENT:
By:
Print Name: Dana Ralph
Its Mayor
DATE:
NOTICES TO BE SENT TO:
CITY OF KENT:
Bryan Higgins
City of Kent
S., Ste 600 220 Fourth Avenue South
Kent, WA 98032
(206) 323-7919 (telephone)
connier@macleodreckord.com (email)
[In this field, you may enter the electronic filepath where the contract has been saved]
(253) 856-5113 (telephone)
BHiggins@kentwa.gov (email)
APPROVED AS TO FORM:
Kent Law Department
ATTEST:
Kent Citv Clerk
CONSULTANT SERVICES AGREEMENT - 6
(Over $20,000)
Packet Pg. 318
4.F.a
DECLARATION
CITY OF KENT NON-DISCRIMINATION POLICY
The City of Kent (City) is committed to conform to Federal and State laws regarding equal
opportunity. As such all contractors, subcontractors, consultants, vendors, and suppliers who
perform work with relation to this Agreement shall comply with the regulations of the City's equal
employment opportunity policies.
The City of Kent and its contractors are subject to and will comply with the following:
• Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat.
252), (prohibits discrimination on the basis of race, color, national origin);
• 49 C.F.R. Part 21 (entitled Non-discrimination In Federally -Assisted Programs
Of The Department Of Transportation -Effectuation Of Title VI Of The Civil
Rights Act Of 1964);
• 28 C.F.R. section 50.3 (U.S. Department of Justice Guidelines for Enforcement
of Title VI of the Civil Rights Act of 1964).
• Ch. 49.60 RCW (Washington Law Against Discrimination)
The preceding statutory and regulatory cites hereinafter are referred to as "the Acts and
Regulations".
The following statements specifically identify the requirements the City deems necessary for any
contractor, subcontractor, or supplier on this specific Agreement to adhere to. An affirmation of
all of the following is required for this Agreement to be valid and binding. If any contractor,
subcontractor, or supplier willfully misrepresents themselves with regard to the directives outlined
below, it will be considered a breach of contract and it will be at the City's sole determination
regarding suspension or termination for all or part of the Agreement.
The statements are as follows:
1. I have read the attached City of Kent administrative policy number 1.2.
2. During the time of this Agreement I will not discriminate in employment on the basis of sex,
race, color, national origin, age, or the presence of all sensory, mental or physical disability.
3. During the time of this Agreement I, the prime contractor, will provide a written statement
to all new employees and subcontractors indicating commitment as an equal opportunity
employer.
4. During the time of the Agreement I, the prime contractor, will actively consider hiring and
promotion of women and minorities.
5. During the performance of this contract, the contractor, for itself, its assignees, and
successors in interest (hereinafter referred to as the "contractor") agrees as follows:
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A. Compliance with Regulations: The contractor, subcontractor, consultant,
vendor, and supplier (hereinafter "Contractor") will comply with all Acts and the
Regulations relative to non-discrimination, including those applicable to Federally -
assisted programs of the U.S. Department of Transportation, State -assisted
programs through the Washington State Department of Transportation, and
generally under Washington's Law Against Discrimination, Ch. 49.60 RCW, as they
may be amended from time to time, which are herein incorporated by reference
and made a part of this contract.
B. Non-discrimination: The contractor, with regard to the work performed by it
during the contract, will not discriminate on the grounds of race, color, or national
origin in the selection and retention of subcontractors, including procurements of
materials and leases of equipment. The contractor will not participate directly or
indirectly in the discrimination prohibited by the Acts and the Regulations, including
employment practices when the contract covers any activity, project, or program
set forth in Appendix B of 49 CFR Part 21.
C. Solicitations for Subcontracts, Including Procurements of Materials and
Equipment: In all solicitations, either by competitive bidding, or negotiation made
by the contractor for work to be performed under a subcontract, including
procurements of materials, or leases of equipment, each potential subcontractor or
supplier will be notified by the contractor of the contractor's obligations under this
contract and the Acts and the Regulations relative to non-discrimination on the
grounds of race, color, or national origin.
D. Information and Reports: The contractor will provide all information and reports
required by the Acts and Regulations and directives issued pursuant thereto and will
permit access to its books, records, accounts, other sources of information, and its
facilities as may be determined applicable to contractor's contract by the City or the
Washington State Department of Transportation to be pertinent to ascertain
compliance with such Acts and Regulations and instructions. Where any information
required of a contractor is in the exclusive possession of another who fails or
refuses to furnish the information, the contractor will so certify to the City or the
Washington State Department of Transportation, as appropriate, and will set forth
what efforts it has made to obtain the information.
E. Sanctions for Noncompliance: In the event of a contractor's noncompliance with
the non-discrimination provisions of this contract, the City will impose such contract
sanctions as it or the Washington State Department of Transportation may
determine to be appropriate, including, but not limited to:
a. withholding payments to the contractor under the contract until the
contractor complies; and/or
b. cancelling, terminating, or suspending a contract, in whole or in part.
F. Incorporation of Provisions: The contractor will include the provisions of
paragraphs (A) through (F) above in every subcontract, including procurements of
materials and leases of equipment, unless exempt by the Acts and Regulations and
directives issued pursuant thereto. The contractor will take action with respect to
any subcontract or procurement as the City or the Washington State Department of
Transportation may direct as a means of enforcing such provisions including
sanctions for noncompliance. Provided, that if the contractor becomes involved in,
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or is threatened with litigation by a subcontractor, or supplier because of such
direction, the contractor may request the City to enter into any litigation to protect
the interests of the City. In addition, the contractor may request the United States
to enter into the litigation to protect the interests of the United States.
6. During the performance of this contract, the contractor, for itself, its assignees, and
successors in interest agrees to comply with the following non-discrimination statutes and
authorities; including but not limited to:
Pertinent Non -Discrimination Authorities:
i. Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252),
(prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part
21.
ii. The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970,
(42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose
property has been acquired because of Federal or Federal -aid programs and
projects);
iii. Federal -Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), (prohibits discrimination
on the basis of sex);
iv. Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended,
(prohibits discrimination on the basis of disability); and 49 CFR Part 27;
V. The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.),
(prohibits discrimination on the basis of age);
vi. Airport and Airway Improvement Act of 1982, (49 USC § 471, Section 47123), as
amended, (prohibits discrimination based on race, creed, color, national origin, or
sex);
vii. The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope,
coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age
Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by
expanding the definition of the terms "programs or activities" to include all of the
programs or activities of the Federal -aid recipients, sub -recipients and contractors,
whether such programs or activities are Federally funded or not);
viii. Titles II and III of the Americans with Disabilities Act, which prohibit discrimination
on the basis of disability in the operation of public entities, public and private
transportation systems, places of public accommodation, and certain testing entities
(42 U.S.C. §§ 12131-12189) as implemented by Department of Transportation
regulations at 49 C.F.R. parts 37 and 38;
ix. The Federal Aviation Administration's Non-discrimination statute (49 U.S.C. § 47123)
(prohibits discrimination on the basis of race, color, national origin, and sex);
X. Executive Order 12898, Federal Actions to Address Environmental Justice in Minority
Populations and Low -Income Populations, which ensures Non-discrimination against
minority populations by discouraging programs, policies, and activities with
disproportionately high and adverse human health or environmental effects on
minority and low-income populations;
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xi. Executive Order 13166, Improving Access to Services for Persons with Limited
English Proficiency, and resulting agency guidance, national origin discrimination
includes discrimination because of Limited English proficiency (LEP). To ensure
y
compliance with Title VI, you must take reasonable steps to ensure that LEP persons Q.
have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100);
xii. Title IX of the Education Amendments of 1972, as amended, which prohibits you from
discriminating because of sex in education programs or activities (20 U.S.C. 1681 et
seq).
L
xiii. Washington Law Against Discrimination (Ch. 49.60 RCW)
7. The submission of the final invoice for this contract will constitute a reaffirmation that the
preceding statements were complied with during the course of the contract's performance.
By signing below, I agree to fulfill the seven requirements referenced above.
By:
For:
Title:
Date:
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CITY OF KENT
ADMINISTRATIVE POLICY
NUMBER: 1.2 EFFECTIVE DATE
SUBJECT: INCLUSIVE CONTRACTING
POLICY:
October 20, 2022
SUPERSEDES: January 1, 1998
APPROVED BY Dana Ralph, Mayor
Equal employment opportunity and non-discrimination in contracting requirements for the City of
Kent will conform to federal and state laws. All contractors, subcontractors, consultants, and
suppliers of the City must guarantee equal employment opportunity within their organization and,
if holding Agreements with the City amounting to $10,000 or more within any given year, must
take the following affirmative steps:
1. Provide a written statement to all new employees and subcontractors indicating
commitment as an equal opportunity employer.
2. Actively consider for promotion and advancement available minorities and women.
Further, all contractors, subcontractors, consultants, suppliers, grantees, or subgrantees of the
City, regardless of the value of the Agreement, are required to sign the City's Non -Discrimination
Policy Declaration, prior to commencing performance.
Any contractor, subcontractor, consultant or supplier who willfully disregards the City's
nondiscrimination and equal opportunity requirements shall be considered in breach of contract
and subject to suspension or termination for all or part of the Agreement.
Contract Compliance Officers will be appointed by the Directors of Planning, Parks, and Public
Works Departments to coordinate with the City's Title VI coordinator, and perform the following
duties for their respective departments.
1. Ensuring that contractors, subcontractors, consultants, and suppliers subject to these
regulations are familiar with the regulations and the City's equal employment opportunity
policy.
2. Monitoring to assure adherence to federal, state and local laws, policies and guidelines
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EXHIBIT A-1
Scope of Work
December 13, 2024
City of Kent
Green River Trail Alignment at Milwaukee II Levee Improvements
PROJECT DESCRIPTION
The City of Kent (City) is pursuing extension of the Green River Trail to complete a non -motorized
connection between the Foster Park Trailhead and S. 25911 Street. Based on previously prepared
studies as well as the 30% preliminary design plan set and cost opinion, the City and Union Pacific
Railroad (UPRR) have confirmed the preferred alignment for the trail should be co -located with the
road beneath the existing trestle on S. 2591" Street. This alignment requires minor retrofits beneath
UPRR's existing wood trestle that include construction of a retaining wall to allow embankment soil
to be removed from the trestle bent immediately south of the roadway where a new trail will be built.
The railroad trestle has a substandard vertical clearance of approximately 8.5' from the existing
road to the lowest point of the overhead trestle and consequently has sustained damage in the past
from being hit by oversized vehicles. For this reason UPRR has required additional protective
barriers with a warning system be installed on both east and west sides of the undercrossing. The
City will take on the design and engineering for the protective barrier and electrical service required
for its operation. That barrier is not a part of this project.
The design for this project will be separate from planned improvements for the Milwaukee II Levee
Project improvements. Levee improvements include grout injection into the embankment
immediately south of the trestle, and construction of a new floodwall on the south side of S. 2591n
Street.
The project design will also include new trail connections utilizing a bicycle roundabout at the
intersection of the Green River Trail and the Interurban Trail; improvement and expansion to the
existing trailhead parking area to include paving, surfacing, and traffic calming improvements at the
access road; amenities such as fencing, barricades, and other trailhead improvements, and
comprehensive grading and drainage improvements.
This scope of services will include final design and engineering based on work completed earlier as
shown in Exhibit A-2 30% Plan Set. The project includes critical area delineation and reporting,
geotechnical evaluation and engineering, civil and structural engineering, trail and trailhead design,
final design documentation including a cost opinion and special provisions, and coordinating with
the City, UPRR, and Washington Utilities and Transportation Commission (UTC) on issues
requiring their input. Documentation format will follow City, UPRR, and WSDOT standards and
guidelines.
The Project Area is as defined in the attached Exhibit A-2 30% Plan Set.
OUTLINE OF SCOPE OF SERVICES
The MacLeod Reckord team will provide final design, engineering, environmental, property and
permit support services to complete the design in accordance with the WSDOT LAG Manual for the
project. Scope of work shall consist of Tasks 01 through 09 as noted below.
Final Design and Engineering Services
Task 01 Project Management E
02 Survey and Mapping
03 Geotechnical Evaluation and Engineering
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04 Environmental and Permit Support Services
05 Cultural Resource Services (NIC)
06 Property and ROW Services (NIC)
07 Public Outreach / Engagement
08 60% PSE and Draft Technical Reports
09 90% PSE and Final Technical Reports
10 100% Final Design
PROJECT TEAM ROLES AND RESPONSIBILITIES
MacLeod Reckord (Consultant) will contract with qualified subconsultants as indicated below. Roles
and responsibilities are as follows:
MacLeod Reckord PLLC (MR) (Consultant) — Project management, client and team
coordination, public outreach facilitation, trail and trailhead planning, design and
documentation, permit support services, overall document coordination, project oversight,
and quality control.
2. KPFF Consulting Engineers (KPFF) — Civil engineering, structural engineering,
temporary erosion control measures, stormwater and utilities design, engineering, and
documentation.
3. GeoEngineers (Geo) — Geotechnical evaluation and engineering services, environmental
assessment and reporting, permit support services, and environmental mitigation planning
and documentation.
4. Stantec — Electrical engineering and lighting design.
5. Transpo Group — Transportation planning and traffic engineering, evaluation and
reporting and documentation.
6. RES Group Northwest LLC (RES) — Property and ROW services (NIC).
7. Willamette Cultural Resources Associates (WCRA) — Cultural resource assessment
and reporting (NIC).
GENERAL PROJECT ASSUMPTIONS
1. City will assist in securing rights -of -entry as necessary for Consultant team to access the
project area.
2. City and/or UPRR will provide any as -built documents available (but for purposes of this
scope, assumed unavailable).
3. City is responsible for setting up targeted coordination meetings with King County, UPRR,
and others as necessary to advance the project. Correspondence and coordination with
these entities will be primarily the responsibility of the City but may be expanded to include
direct correspondence with the Consultant, as approved by the City, and to the limits
shown in the fee proposals.
4. Utilities in the ROW to be protected or relocated include water, sanitary sewer, natural gas
and overhead and underground electrical and telecommunication facilities. Some impacts
anticipated pending (5) pothole explorations.
5. Project does not include any work on the waterward side of the existing levee, within the
regulatory floodplain, or in the Green River below ordinary high water.
6. City is responsible for advertising/notification and website posting for any public outreach
events.
7. LEEDTM Process is not included at this time, however sustainable building practices will be
incorporated into site design as program and budget allow.
8. New or restored irrigation plans are not anticipated to be needed for this project.
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9. Signage and wayfinding design does not include graphic design of sign face or detailed
construction documentation. Signage design will be based on City standards provided or
referenced.
10. Management Reserve maybe set aside for selected tasks.
11. Primary Point of Contact is Bryan Higgins at City of Kent.
DESIGN STANDARDS / CRITERIA
All work will comply with City of Kent Public Works 2021 Design and Construction
Standards Manual, Joint BNSF Railway and UPRR Guidelines for Railroad Grade
Separation Projects, AASHTO Pedestrian and Bicycle Facilities Design Guidelines, all
current editions. Conflicting guideline directives will be resolved by City of Kent.
2. City of Kent Surface Water Design Manual, current edition, which adopts the King County
2021 Surface Water Design Manual.
3. King County 2021 Surface Water Design Manual.
4. WSDOT, Standard Specifications for Road, Bridge, and Municipal Construction, English,
current edition and Amendments.
5. WSDOT Local Agency Guidelines Manual (LAG), current edition
6. Kent Surface Water Design Manual
7. Manual of Uniform Traffic Control Devices (MUTCD), current edition
8. Documentation will be in the most current version of ACAD and Civil 3D available or as
mutually agreed.
SCHEDULE
The scope of work is premised on a Notice -to -Proceed date of approximately December 2024.
Exhibit A-3 Draft Schedule shows duration but begin/end dates to be adjusted upon contract
signing. Project duration is anticipated to be approximately 16 months.
TASKS
PART I —FINAL DESIGN AND ENGINEERING SERVICES
TASK 1: PROJECT MANAGEMENT
1.1 Coordination and Review: Coordinate the Consultant design team to ensure that the work
is completed on schedule, is technically competent, and meets City's requirements.
Develop and implement the work plan and provide overall coordination and review of the
work. Organize and administer regular internal coordination meetings of the design team
to facilitate execution of the work.
1.2 Coordination Meetings: Meet with City and their assigns (may include but not be limited to
WSDOT, multiple City departments, neighboring City/County staff, boards, commissions,
administrators, and council) to discuss and/or present project issues, schedule, progress,
and general coordination of effort.
1.3 Document Management: Provide for the management of drawings and documents
received and generated over the course of the project, including review, distribution, filing,
and storage.
1.4 Project Schedule: Provide a detailed schedule (1 draft, 1 final, 2 updates) for the
Consultant work elements, integrating project deliverables and milestones with schedules
identified by City.
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1.5 Subconsultant Management: Subconsultant management includes the preparation and
execution of subcontracts with each Subconsultant involved in the project. The Consultant
shall provide ongoing overview of progress, review of invoices, and overall coordination of
Subconsultants involved in the project.
1.6 Quality Assurance/Quality Control: Conduct a quality assurance check of all deliverables
prior to submittal to the City. All team members to apply their defined and proven quality
control reviews/process to their specific deliverables for draft and final submittals. Budget
for Subconsultant QA/QC work is covered in subsequent tasks.
1.7 Invoicing: Prepare and submit regular invoicing and monthly progress reports.
Assumptions:
• Coordination and review meetings will be held remotely unless scheduled otherwise.
• Regular Check -In meetings with the City will be held remotely and will be scheduled
approximately twice monthly. Allowance for meetings is limited to the hours indicated in
team fee proposals.
• Subconsulting team members will attend a percentage of Regular Check -In Meetings, as
outlined in their individual fee proposals.
• Check -in meetings with WSDOT will be held remotely, will include team members as
appropriate, and will be scheduled by the City as required to coordinate on SR crossing
issues.
• Meetings with property owners, HOA managers, and/or utility franchise representatives
are not included in this task. See Task 5 for assumptions on meetings with these parties.
• Project schedule will be generated as (1) draft, revised as (1) final, and updated two (2)
times during the course of the project.
Deliverables:
• Contract Documents
• Meeting Notes as required
• Draft and Final Schedule
• Two updated Schedules
• Invoicing and Progress Reports
TASK 2: SURVEY AND MAPPING
2.1 Field Survey and Mapping: Utilizing existing survey data as available from City. Supplement
and update information as indicated in Exhibit A-4 Survey Requirements to provide a
complete topographic and planimetric survey of the entire project area. Extend limited
information on roadway/ROW centerline east to the limits of the existing Green River Trail.
Survey will include contracting with a City/UPRR-approved underground utility locate service
for conductible utility locating and providing five (5) pothole explorations and utility
information as noted in KPFF's email of 2024-12-04.
Assumptions:
• Any boundary resolution or legal descriptions will be developed by the City.
• Access for field crews at the project site will be free from debris and obstructions.
• Any roadway flaggers and vehicle safety use will be provided by the City.
• Final survey will be provided in CAD format per Exhibit A-4 Survey Requirements
Deliverables:
Formatted Base Survey, referenced to current City datum (horizontal and vertical). Provide
draft and final.
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TASK 3: GEOTECHNICAL EVALUATION AND ENGINEERING
3.1 UPRR Underpass Final Design Support:
a. Develop supplemental geotechnical recommendations to support design and
construction of the proposed UPRR underpass including: conceptual phasing and
preliminary design recommendations for temporary shoring systems, design
recommendations for permanent retaining walls, a summary of estimated pile
resistances and associated calculations for the existing UPRR bridge considering
existing and proposed conditions, geotechnical earthwork recommendations.
3.2 Stormwater Infiltration Testing
a. Complete onsite infiltration testing to evaluate the feasibility of infiltrating stormwater.
Up to two pilot infiltration tests will be completed at the site to measure the infiltration
rate of site soils. If stormwater infiltration is determined to be feasible, final long-term
design infiltration rates for stormwater facilities will be provided. If infiltration is
determined to be infeasible, a letter formally documenting this conclusion will be
provided.
3.3 Final Reporting
a. Prepare draft and final 100 percent design level geotechnical reports. The reports will
include information previously provided in the 30 percent geotechnical report and the
results of the additional services outlined above.
3.4 Final Document Review and Comment: Review 60%, 90% and 100% plans,
specifications, and cost opinions and coordinate with team to verify that all geotechnical
engineering requirements are properly incorporated into the documents.
Assumptions:
• Structural design of temporary shoring systems and permanent retaining walls will be
completed by KPFF or a separate subcontractor.
• Pilot infiltration testing will be completed in accordance with the City of Kent Surface Water
Design Manual.
• The City will facilitate obtaining right -of -entry (ROE) or access permissions to the locations
of the proposed infiltration tests.
• Infiltration testing will be completed using equipment and operators under subcontract to
GeoEngineers. Infiltration testing will be completed over a period of two days onsite.
Deliverables:
Draft and Final Geotechnical Engineering Report
Review Comments on 60%, 90%, and 100% Plan Documents
TASK 4: ENVIRONMENTAL AND PERMIT SUPPORT SERVICES
4.1 Critical Areas (Wetland and Stream) Delineation: Perform field delineation within the
project area as shown in Exhibit A-2 30% Plan Set for purposes of establishing wetland /
stream boundary flagging; record data to support wetland ratings and stream
classifications for critical areas reporting per City of Kent Municipal Code. Provide sketch
of flags for City surveyor. Verify absence of wetlands within the study area using methods
described in the 2010 Regional Supplement to the U.S. Army Corps of Engineers Wetland
Delineation Manual: Western Mountains, Valleys, and Coast Region. The ordinary high-
water mark of the Green River will be flagged. The delineation will be along, and within
300 feet of the 30% trail alignment, where right -of -entry has been secured by the City and
fieldwork is authorized. If right -of -entry is not available, the approximate location of the
OHWM will be identified based on LiDAR topography and aerial photo interpretation.
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4.2 Wetlands and Stream Technical Memorandum: Catalog and describe wetlands and
streams identified during the Critical Areas (Wetland and Stream) delineation; assess
function of wetlands and document rating according to Washington State Wetland Rating
System for Western Washington 2014 Update Version 2.0 (Hruby & Yahnke 2023);
determine buffers, stream classification according to noted criteria.
4.3 SEPA Checklist: Develop SEPA Checklist. City will be the SEPA lead agency and they will
issue a SEPA determination consistent with their SEPA rules. Consultant will prepare a
draft SEPA Environmental Checklist for internal review that is consistent with Washington
State (Chapter 197-11 WAC) and City SEPA requirements. Following review of the draft,
Consultant will incorporate team and City comments into Checklist for finalization by the
City and public distribution.
a. To the extent practicable, work necessary to complete the Environmental Checklist
will be undertaken using existing environmental and land use data. These existing
materials will be augmented by engineering studies (TIR), surveys, and geotechnical
analysis completed for the project and as noted herein. No additional studies such as
air emission and noise studies or site work are anticipated to complete the SEPA
Checklist.
4.4 Critical Areas Report: Prepare Critical Areas Report (CAR) per City of Kent Municipal
Code to address potential impacts to wetlands, streams, and/or their buffers. The CAR will
be based on 60% design information and will utilize information included in the Wetland
and Stream Technical Memorandum that documents the result of the delineation.
4.5 Mitigation Plan: Develop a mitigation plan documenting impacts to riparian vegetation
within the shoreline and/or riparian buffer and proposing mitigation to offset those impacts.
GeoEngineers to support team to develop mitigation plan set (by MR). Incorporate
mitigation plan into Critical Areas Report. No net loss of ecological function will be
demonstrated in compliance with City of Kent Municipal Code and Washington State
Department of Ecology requirements.
4.6 Other Permit Support Services:
a. City of Kent
i. Critical Areas Review. Attend pre -application meeting with City Planning
Department. Support City of Kent during permit application, review, and comment
period.
ii. Shoreline Substantial Development Permit. Attend pre -application meeting with
City Planning Department. Prepare application form and Shoreline Narrative for
submittal with permit application. Support City of Kent during permit application,
review, and comment period.
b. Ecology NPDES General Stormwater Permit (KPFF)
C. SWPPP (in support of NPDES, KPFF)
Assumptions:
• The scope assumes no direct impact to wetlands.
• The scope does not include specific survey for any individual fish, wildlife, or plant
species.
• The scope assumes no direct impacts to Waters of the U.S. A Clean Water Act permit
from the U.S. Army Corps of Engineers will not be required.
• The scope assumes no direct impacts to Waters of the State. A Hydraulic Project Approval
from the Washington Department of Fish & Wildlife will not be required.
• The scope assumes a Flood Zone Permit will not be required.
• There is no federal nexus; therefore, NEPA compliance is not required.
• The scope for Task 4 does not address the following critical areas: geologic hazard areas
and critical aquifer recharge areas.
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• The scope assumes mitigation will be completed on -site as riparian restoration.
• The scope assumes the project will be approved as a Shoreline Substantial Development
Permit and a shoreline hearing will not be required.
• Includes consultation with permitting agencies to verify permit requirements and need.
• One round of review of the SEPA Checklist is assumed. It is anticipated that SEPA will be
non -significant impact determination.
• One round of City review for the permits listed under Task 4.6.
• The City will be responsible for submitting permits and support documents to the agencies
and will be the point of contact for agencies for any follow-up questions and comments.
• City will be responsible for all permit fees or third -party review fees.
• City will be responsible for the cost to produce and install the SEPA notice sign.
Deliverables:
• Critical Areas sketch for City surveyor
• Wetland and Stream Technical Memorandum, draft and final
• Draft and Final SEPA Checklist
• Draft and Final Critical Areas Report / Mitigation Plan
• Draft and Final Permit Applications as listed under 4.6
TASK 5: CULTURAL RESOURCE SERVICES (PENDING REQUIREMENTS BY
OTHERS; NOT INCLUDED IN CONTRACT)
5.1 Cultural Resources Services: TBD.
TASK 6: PROPERTY AND ROW SERVICES (PENDING REQUIREMENTS BY OTHERS;
NOT INCLUDED IN CONTRACT)
6.1 Property and ROW Services: TBD.
TASK 7: PUBLIC OUTREACH / ENGAGEMENT
7.1 Public Outreach Strategy: Develop outline of public outreach plan and timeline for
review/approval by City.
7.2 News Media Release: Prepare (1) news media release document for distribution by City.
7.3 Public Outreach Material Preparation / Presentation: Prepare presentation material for (1)
public in -person Open House event to present 60% Design and relevant reporting.
7.4 Public Outreach Summary: Summarize the results of the in -person Open House events
and other data generated by the City in a single comprehensive narrative.
Assumptions:
• Consultant will develop final graphics and provide materials for in -person Open House.
• City will host and advertise for in -person Open House events.
Deliverables:
• News Media Release, draft and final
• Final illustrative graphics, including representative illustrations, of 60% submittal. No
illustrative graphics of 90% or 100% anticipated.
• Summary narrative of results
TASK 8: 60% PSE AND DRAFT TECHNICAL REPORTS
8.1 Cover Sheet; Key Sheet; Notes, Abbreviations and Legends Sheet (MR)
8.2 Demolition Plan and Notes: Develop demolition plans, including notes (KPFF)
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8.3 Site Plan: Develop site plan with content specific to requirements for permit application
(MR).
8.4 TESC Plan, Details, and Notes: Develop TESC plan, details, notes, and schedules
(KPFF).
8.5 Traffic Control Plan (NIC): Assumed this work will be done by Contractor at a future date.
8.6 Trailhead Layout Plan, Grading Plan, and Construction Details: Advance trailhead layout
and grading plans, details, notes, and schedules (MR).
8.7 Trail Plan, Profile, and Details: Advance trail plan and profile. Documentation to include
plan, profile, cross sections, trail grading, details, notes, schedules, and sign schedule for
trail signs (MR).
8.8 Electrical and/or Illumination Plans, Details, and Notes (Stantec):
8.9 Utility Plan, Details, and Notes: Develop utility relocation plan, details, notes, and
schedules. The Consultant shall coordinate with franchise utilities for adjustments or
relocations. Impacts to water mains and sanitary sewer will be evaluated. Potholing of
utility in S 259th Street is anticipated (KPFF).
8.10 Storm Drainage Plan, Details, Notes, and Draft Report: Advance design of the stormwater
collection and conveyance system. Documentation to include plan, profiles, details and
notes as required. Prepare draft Stormwater Technical Information Report (TIR) and
conduct site visit to assess downstream impacts (KPFF).
8.11 Structural Plans, Details, and Notes: Include sequencing plan in lieu of demolition plan for
the trestle. Wall plans will describe temporary support requirements for trestle. Temporary
support design ultimately the responsibility of the Contractor. (KPFF)
8.12 Ground Disturbance Compiled File: Update file from combined work from Tasks noted
above in a single base file showing all combined ground disturbing activities (MR).
8.13 Planting Plan, Details, and Notes: Develop planting and roadside restoration plans.
Documentation to include plan, details, notes, and schedules (MR).
8.14 Mitigation Plan, Details, and Notes: Develop mitigation plan and details (MR with input
from GeoE)
8.15 60% Level Cost Opinion: Advance design development level cost opinion for the project in
its entirety (ALL).
8.16 Specification Outline: Assemble GSP's and develop outline of Special Provisions.
Coordinate with City on Amendments and consolidation of final draft specifications (ALL).
8.17 Review/approval: Provide complete 60% submittal for City review and comment. Provide
comment response at the time of 90% submittal. Incorporate comments and revisions into
the 90% submittal.
Assumptions:
• Submittal assumes plans, specification outline, cost opinion, and technical reports.
• One draft Stormwater Report will be prepared in City format to address City permitting
needs.
• Foster Park Regional Stormwater facility is intended, and has capacity for, the trailhead
parcel. No hydrologic modeling or additional documentation is required.
• Project is exempt from Water Quality (Core Requirement No. 8) as documented in the
Stormwater Management Analysis and Evaluation memorandum prepared in the prior
phase.
• Core Requirement No. 9 for Flow Control BMPs is satisfied by routing site drainage to the
aforementioned regional facility.
Packet Pg. 331
4.F.a
Traffic Control Plan assumed to be done by Contractor at a future date.
Consultant responsible for coordination with franchise utilities up to 16 hours via email or
coordination meetings.
It is anticipated that TESC measures and stormwater details are typical standard details.
Deliverables:
• Cover, Key, Notes Sheets
• Demolition Plan
• Site Plan (incorporates info required in permit submittal checklist)
• TESC Plan and Details
• Trailhead Layout, Grading Plan
• Trail Alignment Plan and Profile
• Sign Schedule for Trail
• Trailhead Details
• Trail Details and Cross Sections
• Electrical / Illumination Plans and Details
• Storm Drainage Plan and Profile
• Utility Plan, Profiles, and Details
• Draft Stormwater Technical Information Report
• Wall Layout
• Wall Construction Sequence (2 sheets)
• Trestle Temporary Support Details (3 sheets)
• Wall Details (3 Sheets)
• Wall/Trestle Support Design Calculations
• Ground Disturbance Base File (file only for internal evaluation of mitigation requirements)
• Planting Plan and Details
• Mitigation Plan and Details
• 60% Cost Opinion
• Specification GSP's and Outline for Special Provisions
• Comment Response delivered with next submittal
TASK 9: 90% CONSTRUCTION DOCUMENTS AND FINAL TECHNICAL REPORTS
9.1 Plans, Details, Notes, Calculations, Final Reports: Prepare construction documents to
90% completion plans based on standard engineering practices and input from public and
City review of 60% submittal. Provide plans, details, notes, calculations and reporting as
identified below under Deliverables.
9.2 Specifications: Prepare 90% complete comprehensive package of GSP's and Special
Provisions. Coordinate with City on final assembly.
9.3 Cost Opinion: Prepare 90% Cost Opinion with any Schedules identified.
9.4 Review/approval: Provide complete 90% submittal for City review and comment. Provide
comment response at the time of 100% submittal. Incorporate comments and revisions
into the 100% submittal.
9.5 Prepare SWPPP as part of the supporting document for Ecology NPDES General
Stormwater Permit in Task 4.6 (KPFF).
Assumptions:
• Submittal assumes plans, specifications, cost opinion, technical reports, checklists, and
memorandum.
• See 60% Assumptions.
Packet Pg. 332
4.F.a
Deliverables:
• Cover, Key, Notes Sheets
• Demolition Plan
• Site Plan (incorporates info required in permit submittal checklist)
• TESC Plan and Details
• Trailhead Layout, Grading Plan
• Trail Alignment Plan and Profile
• Sign Schedule for Trail
• Trailhead Details
• Trail Details and Cross Sections
• Electrical / Illumination Plans and Details
• Storm Drainage Plan and Profile
• Utility Plan, Profiles, and Details
• Draft Stormwater Technical Information Report
• Wall Layout
Wall Construction Sequence (2 sheets)
• Wall Details (3 sheets)
• Wall/Trestle Support Design Calculations
• Ground Disturbance Base File (file only for internal evaluation of mitigation requirements)
• Planting Plan and Details
• Mitigation Plan and Details
• 90% Cost Opinion
• Specification GSP's and Special Provisions
• SWPPP (see also Task 4.6)
• Comment Response delivered with next submittal
TASK 10: 100% FINAL DESIGN
10.1. Plans, Details, Notes, Calculations: Prepare construction documents to 100% completion
plans based on standard engineering practices and input from City review of 90%
submittal. Provide plans, details, notes, calculations and reporting as identified under
Deliverables for 90%.
10.2. Specifications with Final Reports bound into Appendices: Prepare 100% complete
comprehensive package of GSP's and Special Provisions. Coordinate with City on final
assembly.
10.3. Cost Opinion: Prepare 100% Cost Opinion with any Schedules identified.
10.4. Review meeting with City. Provide final edits/additions to complete and final contract
documents.
Assumptions:
• Submittal assumes plans, specifications, cost opinion, technical reports, checklists, and
memorandum.
• Final plans, specifications, cost opinion, technical reports, checklists, memorandum,
construction phasing, and response to comments will be delivered by the City to BNSF.
• Task 10 provides an allowance for final adjustments to PS&E. Scope of work is limited to
the fee indicated in the proposal. Additional effort will require a contract amendment.
• It is anticipated no significant comment/revisions between 90% to 100%
Deliverables:
• See 90% Deliverables for comprehensive list of 100% Deliverables.
10
Packet Pg. 333
4.F.a
Milwaukee II Levee and Green River Trail Improvements
Fee Summary
December 2024
Task/Team
MacLeod
Reckord
KPFF
KPFF
GeoEngineers
Stantec
PACE
Subtotal
trail and trailhead
desi n
civil and transp
en ineerin
structural
engineering
geotechnical
evaluation & reE2qina
electrical
engineering
survey & mapping
FINAL DESIGN AND ENGINEERING SERVICES
1.0 Project Management
2.0 Survey and Mapping
33,844.00
5,265.04
3,380.00
1,440.00
1,874.00
45,803.04
948.00
-
-
-
-
18,088.00
19,036.00
3.0 Geotechnical Evaluation and Engineering
3,822.00
-
32,966.00
-
36,788.00
4.0 Environmental and Permit Support Services
7,776.00
-
41,729.00
2,859.00
52,364.00
5.0 Cultural Resource Services (Not in Contract)
-
-
-
-
6.0 Property and ROW Services (Not in Contract)
-
-
-
-
-
-
7.0 Public Outreach / Engagement
10,670.00
-
-
-
10,670.00
8.0 60% PSE and Draft Technical Reports
50,026.00
41,645.50
56,062.50
-
13,294.00
161,028.00
9.0 90% Construction Documents and Final Technical Reports
47,850.00
36,250.50
68,965.00
-
10,699.00
163,764.50
10.0 100% Final Design
24,854.00
20,592.00
20,627.75
-
5,370.00
71,443.75
Subtotal
179,790.00
103,753.04
149,035.25
74,695.00
33,662.00
19,962.00
560,897.29
Direct Expenses
300.00
9,500.00
100.00
9,900.00
Total
180,090.00
103,753.04
149,035.25
84,195.00
33,762.00
19,962.00
570,797.29
G
Packet Pg. 334
4.F.a
Milwaukee II Levee and Green River Trail Improvements
MacLeod Reckord Fee Proposal
December 2024
MacLeod Reckord
PC PM LA1 LD1 CAD1 AD1
SUBTOTAL N
Task SCOPE OF WORK $230.00 $180.00 $156.00 $147.00
$147.00 $154.00
1.0
PROJECT MANAGEMENT
1.1
Coordination and Review
8
32
$ 7,600 i
1.2
Coordination Meetings
32
40
$ 14,560. H
1.3
Document Management
4
16
8
$ 4,248.
1.4
Project Schedule
2
8
$ 1,900.
1.5
Subconsultant Management
2
2
4
$ 1,436.
1.6
Quality Assurance / Quality Control
6
$ 1,380. O
1.7
Invoicing, Progress Reporting
2
4
1
11
10
$ 2,720. 4)ubtotal:
52
90
0
8
14
$ 33,844 (9
2.0
SURVEY AND MAPPING t
2.1
Field Survey and Mapping
2
4
$ 948 +-'
Subtotal:
0
2
0
4
0
$ 948 L
O
3.0
GEOTECHNICAL EVALUATION AND ENGINEERING U
3.1
UPRR Underpass Final Design Support
2
$ 360 J
3.2
Stormwater Infiltration Testing
4
$ 720, d
3.3
Final Reporting
2
2
$ 820.
3.2.
Final Document Review and Comment
2
4
4
1
$ 1,922,
Subtotal:
4
12
0
0
1
$ 3,822 he
4.0
ENVIRONMENTAL AND PERMIT SUPPORT SERVICES avi
4.1
Critical Areas (Wetland and Stream) Delineation
2
$ 360
4.2
Wetlands and Stream Technical Memorandum
1
1
$ 410
4.3
SEPA Checklist
1
4
2
$ 1,244. 0)
4.4
Critical Areas Report
1
2
$ 590 v
4.5
Mitigation Plan
2
4
8
8
$ 3,532. O
4.6
Other Permit Services
4
4
$ 1,640.
SubtOtal
1 g
1 17
0
1
10
1 0 11
$ 7,776, r
5.0
CULTURAL RESOURCE SERVICES (PENDING REQUIREMENTS BY OTHERS,
NOT
INCLUDED IN CONTRACT)
3
Subtotal: 0 0
0
0 0 $
6.0
PROPERTY AND ROW SERVICES (PENDING REQUIREMENTS BY OTHERS, NOT INCLUDED
IN CONTRACT)
Subtotal: 0 0 0
0 0 $ d
7.0
PUBLIC OUTREACH / ENGAGEMENT L
7.1
Public Outreach Strategy
1
4
$ 950 a
7.2
News Media Release
2
$ 360
7.3
Public Outreach Material Preparation / Presentation
4
16
8
8
$ 6,152.
7.4
Public Outreach Summary
2
12
4
$ 3,208. v
Subtotal:
7
34
0
8
0
$ 10,670.
8.0
60% PSE AND DRAFT TECHNICAL REPORTS Y
8.1
Cover Sheet; Key Sheet; Notes, Abbrev. And Legends Sheet
MR
2
4
2
4
N
$ 2,062.
8.2
Demolition Plan and Notes (KPFF)
2
2
$ 654 O>
8.3
Site Plan (MR)
4
8
4
8
$ 4,124. L
8.4
TESC Plan, Details, and Notes (KPFF)
2
2
$ 654 N
8.5
Traffic Control Plan (NIC)
$ E
8.6
Trailhead Layout Plan, Grading Plan, and Details MR
8
24
40
40
$ 17,920.
8.7
Trail Plan, Profile, and Details (MR)
2
8
16
16
$ 6,604.
8.8
Electrical and / or Illumination Plans, Details, and Notes (ST)
2
2
$ 654 Q
8.9
Utility Plan, Details, and Notes KPFF)
1
4
4
$ 1,538. y
N
8.10
Storm Drainage Plan, Details, Notes, Draft Report (KPFF)
1
4
4
$ 1,538. ,v
8.11
Structural Plans, Details, and Notes (KPFF)
1
4
4
$ 1,538.
8.12
Ground Disturbance Compiled File (MR)
2
8
$ 1,536.
8.13
Planting Plan, Details, and Notes (MR)
1
4
8
8
$ 3,302.
8.14
Mitigation Plan, Details, and Notes (MR)
1
4
8
8
$ 3,302. c�0
8.15
60% Level Cost Opinion
2
8
8
$ 3,076.
8.16
Specification Outline
1
1
$ 410 N
C
8.17
Review/Approval
1 2
2
2
$ 1,114. O
Subtotal:
26
1 83
1 0
1 80
1 118
1 0 11
$ 50, 226. V
9.0
90% CONSTRUCTION DOCUMENTS AND FINAL TECHNICAL REPORTS
9.1
Plans, Details, Notes, Calcs, Final Reports
16
60
60
80
$ 35,060.
9.2
Specifications
8
16
8
$ 5,952. E
9.3
Cost Opinion
4
8
12
8
2
$ 5,608. U
9.4
Review / Approval
2
2
$ 820, +++,
9.5
Prepare SWPPP
1
1
$ 410 Q
Subtotal:
31
87
0
88
10
$ 47,850.uu
Packet Pg. 335 8
4.F.a
Milwaukee II Levee and Green River Trail Improvements
MacLeod Reckord Fee Proposal
December 2024
10.1 Plans, Details, Notes, Calculations
12
40
24
40
$ 19,368.
10.2 Specifications with Final Reports
6
8
2
$ 3,128.
10.3 Cost Opinion
1
4
4
$ 1,538.
10.4 Review with City
2
2
$ 820.
21
54 0
44
2
$ 24,854
Subtotal
150
379 0
280
27
$ 179,790.1
Direct
Expenses:
$ 300.1
SUBTOTAL:j
$ 180,090.1
Packet Pg. 336 8
4.F.a
Milwaukee II Levee and Green River Trail Improvements
KPFF Civil / Transportation Fee Proposal
December 2024
KPFF Consulting Engineers
PIC PM Sr Engr Proj Engr CADD Proj
Coord.
RMSCCPE
SUBTOTAL
Task OF WORK $ 276.25
$ 260.00
$ 211.25
$ 188.50
$ 178.75
$ 121.88
1.0
PROJECT MANAGEMENT
1.1
Coordination and Review
8
$ 2,210.
1.2
Coordination Meetings
8
8
1 $ 3,055
Subtotal:
8
8
0
0
0
8
$ 5,265
2.0
SURVEY AND MAPPING
Subtotall 0 1 0 1 0 1 0 1 0 1 0 11 $
3.0
GEOTECHNICAL EVALUATION AND ENGINEERING
Subtotal: 0 0 0 0 0 0 $
4.0
ENVIRONMENTAL AND PERMIT SUPPORT SERVICES
Subtotal: 10 0 0 0 0 0 $
5.0
CULTURAL RESOURCE SERVICES (PENDING REQUIREMENTS BY OTHERS, NOT INCLUDED IN CONTRACT)
Subtotal: 10 1 0 1 0 1 0 1 1 0 $
6.0
PROPERTY AND ROW SERVICES (PENDING REQUIREMENTS BY OTHERS, NOT INCLUDED IN CONTRACT)
Subtotal: 0 0 0 0 0 0 $
7.0
PUBLIC OUTREACH / ENGAGEMENT
Subtotal: 0 0 0 0 1 0 1 0 11s
8.0
60% PSE AND DRAFT TECHNICAL REPORTS
8.1
Cover Sheet; Key Sheet; Notes, Abbrev. And Legends Sheet
MR
$
8.2
Demolition Plan and Notes
1
2
3
5
$ 2,141.
8.3
r+..� .i
$
8.4
TESC Plan, Details, and Notes
1
2
3
5
$ 2,141.
8.5
Traffic Control Plan (NC)
$
8.6
Trailhead Layout Plan, Grading Plan, and Construction
Details
$
8.7
Trail Plan, Profile, and Details
$
8.8
Electrical and / or Illumination Plans, Details, and Notes
$
8.9
Utility Plan, Details, and Notes
13
7
12
22
$ 11,053.
8.10
Storm Drainage Plan, Details, Notes, and Draft Report
15
25
48
14
$ 20,731.
8.11
Structural Plans, Details, and Notes
$
8.12
Ground Disturbance Compiled File
$
8.13
Planting Plan, Details, and Notes
$
8.14
Mitigation Plan, Details, and Notes
$
8.15
60% Level Cost Opinion
2
4
8
$ 2,873.
8.16
Specification Outline
4
$ 845,
8.17
Review / Approval
1
4
4
$ 1,859.
Subtotal:
0
33
48
78
46
0
9.0
90% CONSTRUCTION DOCUMENTS AND FINAL TECHNICAL REPORTS
9.1
Plans, Details, Notes, Calcs, Final Reports
21
26
44
42
$ 26,754.
9.2
Specifications
12
8
$ 4,810.
9.3
Cost Opinion
2
2
4
$ 1,696.
9.4
Review / Approval
1
2
4
$ 1,436.
9.5
Prepare SWPPP
2
6
$ 1,553
Subtotal:
0
36
40
58
42
0
$ 36,250
10.0
100% FINAL DESIGN
10.1
Plans, Details, Notes, Calculations
14
14 26
24
$ 15,788.
10.2
Specifications with Final Reports
4
6
$ 2,307.
10.3
Cost Opinion
2
2 4
$ 1,696.
10.4
Review with City
2 2
$ 799,
0
20
24 32
24
0
$ 20,592,
Subtotal
8
97
112 168
112
8
$ 103,753.(
Direct
Expenses:
SUBTOTAL:
$ 103,753.1
Packet Pg. 337 8
4.F.a
Milwaukee II Levee and Green River Trail Improvements
KPFF Structural Fee Proposal
December 2024
KPFF Consulting Enginees
PIC PM Sr Engr Proj Engr CADD I Proj
Coord.
PSCORPEOFORK
=SUBTOTAL
Task $ 276.251
$ 260.001 $ 211.25 $ 188.50 $ 178.75 $ 121.88
1.0
PROJECT MANAGEMENT
1.1
Coordination and Review
8
$ 1,690.
1.2
Coordination Meetings
8
$ 1,690.
Subtotal:
0
0
16
0
1 0
1 0
$ 3,380
2.0
SURVEY AND MAPPING
2.1
Identify Req. Addi'II Survey and Consolidated Mapping
$
Subtotall
0
1 0
1 0
1 0
1 0
1 0
$
3.0
GEOTECHNICAL EVALUATION AND ENGINEERING
Subtotal: 0 0 0 0 1 0 1 0 $
4.0
ENVIRONMENTAL AND PERMIT SUPPORT SERVICES
Subtotal: 10 0 0 0 1 0 1 0 $
5.0
CULTURAL RESOURCE SERVICES (PENDING REQUIREMENTS BY OTHERS, NOT INCLUDED IN CONTRACT)
Subtotal: 10 0 1 0 1 0 1 1 0 $
6.0
PROPERTY AND ROW SERVICES (PENDING REQUIREMENTS BY OTHERS, NOT INCLUDED IN CONTRACT)
Subtotal: 0 0 0 0 0 0 $
7.0
PUBLIC OUTREACH / ENGAGEMENT
Subtotal: 0 0 0 0 0 0 $
8.0
60% PSE AND DRAFT TECHNICAL REPORTS
8.1
Cover Sheet; Key Sheet; Notes, Abbrev. And Legends Sheet
MR
$
8.2
Demolition Plan and Notes
$
8.3
Site Plan
$
8.4
TESC Plan, Details, and Notes
$
8.5
Traffic Control Plan (NC)
$
8.6
Trailhead Layout Plan, Grading Plan, and Construction
Details
$
8.7
Trail Plan, Profile, and Details
$
8.8
Electrical and / or Illumination Plans, Details, and Notes
$
8.9
Utility Plan, Details, and Notes
$
8.10
Storm Drainage Plan, Details, Notes, and Draft Report
$
8.11
Structural Plans, Details, and Notes
4
40
125
90
$ 49,205.
8.12
Ground Disturbance Compiled File
$
8.13
Planting Plan, Details, and Notes
$
8.14
Mitigation Plan, Details, and Notes
$
8.15
60% Level Cost Opinion
2
8
20
$ 6,012.
8.16
Specification Outline
4
$ 845,
8.17
Review / Approval
$
Subtotal:
6
0
52
145
90
0
$ 56,062.
9.0
90% CONSTRUCTION DOCUMENTS AND FINAL TECHNICAL REPORTS
9.1
Plans, Details, Notes, Calcs, Final Reports
6
60
140
120
$ 62,172.
9.2
Specifications
2
12
$ 3,087.
9.3
Cost Opinion
2
6
10
$ 3,705.
9.4
Review / Approval
$
9.5
Prepare SWPPP
$
Subtotal:
10
0
78
150
120
0
$ 68,965.
10.0
100% FINAL DESIGN
10.1
Plans, Details, Notes, Calculations
2
24
40
25
$ 17,631.
10.2
Specifications with Final Reports
2
4
$ 1,397.
10.3
Cost Opinion
4
4
$ 1,599.
10.4
Review with City
$
4
0 32
44
25 0
$ 20,627.
Subtotal
20
0 178
339
235 0
$ 149,035.;
Direct
Expenses:
SUBTOTAL:
Packet Pg. 338 8
4.F.a
Milwaukee II Levee and Green River Trail Improvements
GeoEngineers Fee Proposal
December 2024
GeoEngineers
Senior CAD
Senior Senior Sci Staff EngLStaffffSci,03
Associate IS ADMIN 3Eng 2 1 3Anal st Designer
SUBTOTAL
Task SCOPE OF WORK $292.00
$279.00
$255.00
$198.00
$180.00
$155.00
$136.00
1.0
PROJECT MANAGEMENT
Subtotal: 0 0 0 0 0 $
2.0
SURVEY AND MAPPING
Subtotal: 0 1 0 1 1 0 1 1 1 0 1 0 11 $
3.0
GEOTECHNICAL EVALUATION AND ENGINEERING
3.1
UPRR Underpass Final Design Support
10
15
24
4
$ 12,477.00
3.2
Stormwater Infiltration Testing
2
5
30
2
$ 8,191.00
3.3
Final Reporting
6
12
15
2
4
$ 8,924.00
3.2.
Final Document Review and Comment
2
10
$ 3,374.00
Subtotal:
20
42
69
6
6
$ 32,966.00
4.0
ENVIRONMENTAL AND PERMIT SUPPORT SERVICES
4.1
Critical Areas (Wetland and Stream) Delineation
2
9
12
1
$ 5,307.00
4.2
Wetlands and Stream Technical Memorandum
2
6
18
6
3
$ 7,040.00
4.3
SEPA Checklist
3
4
10
3
$ 4,214.00
4.4
Critical Areas Report
3
16
24
3
4
$ 10,624.00
4.5
Mitigation Plan
4
4
12
2
$ 4,752.00
4.6
Other Permit Services
12
16
10
3
$ 9,792.00
Subtotal:
26
0
55
0
76
19
0
16
$ 41,729.00
5.0
CULTURAL RESOURCE SERVICES (PENDING REQUIREMENTS
BY OTHERS,
NOT
INCLUDED
IN CONTRACT)
Subtotal:
10 1 0
1
1 0
1 1 1 0 0 $0
6.0
PROPERTY AND ROW SERVICES (PENDING REQUIREMENTS
BY OTHERS, NOT
INCLUDED IN CONTRACT)
Subtotal:
0 0
0 0 0 $0
7.0
PUBLIC OUTREACH / ENGAGEMENT
Subtotal: 0 0 0 0 0 $0
8.0
60% PSE AND DRAFT TECHNICAL REPORTS
Subtotal: 0 0 0 0 0 $0
9.0
90% CONSTRUCTION DOCUMENTS AND FINAL TECHNICAL REPORTS
Subtotal: 0 0 0 1 1 1 0 1 0 11 $0
10.0
100% FINAL DESIGN
0
0
0
0
0
$0
Subtotall
46
42
1
1 69
1
6
1 22
$ 74,695.00
Direct Expenses:
$ 9,500.00
SUBTOTAL:
$ 84,195.00
Packet Pg. 339 8
4.F.a
Milwaukee II Levee and Green River Trail Improvements
Stantec Consulting Services, Inc. Fee Proposal
December 2024
Stantec Consulting Services, Inc.
Electrical Electrical Project Project
PM Designer CAD Controls Support
EMSCOPE
SUBTOTAL
Task OF WORK $240.00
$206.00
$183.00
$206.00
$167.00
1.0
PROJECT MANAGEMENT
1.1
Coordination and Review
3
$ 720.00
1.2
Coordination Meetings
3
$ 720.00
Subtotal:
6
0
0
0
0
$ 1,440.00
2.0
SURVEY AND MAPPING
Subtotall 0 1 0 1 0 1 0 1 0 11 $ -
3.0
GEOTECHNICAL EVALUATION AND ENGINEERING
Subtotal: 0 0 0 0 0 $ -
4.0
ENVIRONMENTAL AND PERMIT SUPPORT SERVICES
4.1
Critical Areas (Wetland and Stream) Delineation
$
4.2
Wetlands and Stream Technical Memorandum
$ -
4.3
SEPA Checklist
2
2
$ 892.00
4.4
Critical Areas Report
4
4
1
$ 1,967.00
4.5
Mitigation Plan
$ -
4.6
Other Permit Services
$ -
Subtotal:
6
6
1
0
0 11
$ 2,859.00
5.0
CULTURAL RESOURCE SERVICES (PENDING REQUIREMENTS BY OTHERS,
NOT
INCLUDED IN CONTRACT)
Subtotal: 10 1 0
1 0
1 0 1 0 11
$
6.0
PROPERTY AND ROW SERVICES (PENDING REQUIREMENTS BY OTHERS, NOT
INCLUDED IN CONTRACT)
Subtotal: 0 0 0
0 0 11 $
7.0
PUBLIC OUTREACH / ENGAGEMENT
Subtotal: 0 0 0 0 0 11 $
8.0
60% PSE AND DRAFT TECHNICAL REPORTS
8.1
Cover Sheet; Key Sheet; Notes, Abbrev. And Legends Sheet
MR
$
8.2
Demolition Plan and Notes
$
8.3
Site Plan
$
8.4
TESC Plan, Details, and Notes
$
8.5
Traffic Control Plan (NC)
$
8.6
Trailhead Layout Plan, Grading Plan, and Construction
Details
$
8.7
Trail Plan, Profile, and Details
$
8.8
Electrical and / or Illumination Plans, Details, and Notes
23
16
11
2
1
$ 11,408.00
8.9
Utility Plan, Details, and Notes
4
$ 960.00
8.10
Storm Drainage Plan, Details, Notes, and Draft Report
$ -
8.11
Structural Plans, Details, and Notes
$
8.12
Ground Disturbance Compiled File
$
8.13
Planting Plan, Details, and Notes
$
8.14
Mitigation Plan, Details, and Notes
$ -
8.15
60% Level Cost Opinion
1
$ 240.00
8.16
Specification Outline
2
1
$ 686.00
8.17
Review / Approval
$ -
Subtotal:
30
17
L 11
2
1
$ 13,294.00
9.0
90% CONSTRUCTION DOCUMENTS AND FINAL TECHNICAL REPORTS
9.1
Plans, Details, Notes, Calcs, Final Reports
19
13
11
2
1
$ 9,830.00
9.2
Specifications
1
1
1
$ 629.00
9.3
Cost Opinion
1
$ 240.00
9.4
Review / Approval
$ -
9.5
Prepare SWPPP
$
Subtotal:
21
14
12
2
1
$ 10,699.00
10.0
100% FINAL DESIGN
10.1
Plans, Details, Notes, Calculations
9
5 4
2 1
$ 4,501.00
10.2
Specifications with Final Reports
1
1 1
$ 629.00
10.3
Cost Opinion
1
$ 240.00
10.4
Review with City
$ -
11
6 5
2 1
$ 5,370.00
Subtotal
74
43 29
6 3
$ 33,662.00
Direct
Expenses:
$ 100.00
SUBTOTAL:
1 $ 33,762.00
Packet Pg. 340 8
4.F.a
Milwaukee II Levee and Green River Trail Improvements
PACE Engineers, IncFee Proposal
December 2024
PACE Engineers, Inc
Sr. Survey 2-Person Project
LPri'npal Tech Crew Administr
or ator
L$209.00
SUBTOTAL
Task SCOPE OF WORK00
$181.00
$252.00
$136.00
1.0
PROJECT MANAGEMENT
1.1
Coordination and Review
4
2
$ 1,370.00
1.2
Coordination Meetings
2
$ 504.00
Subtotal:
6
0
2
0
0
$ 1,874.00
2.0
SURVEY AND MAPPING
2.1
Identify Req. Addi'II Survey and Consolidated Mapping
8
8
32
32
4
$ 18,088.00
Subtotal:
g
1 8
1 32
1 32
1 4 11
$ 18,088.00
3.0
GEOTECHNICAL EVALUATION AND ENGINEERING
Subtotal: 0 0 0 0 0 $ -
4.0
ENVIRONMENTAL AND PERMIT SUPPORT SERVICES
Subtotal: 10 0 0 0 0 $ -
5.0
CULTURAL RESOURCE SERVICES (PENDING REQUIREMENTS BY OTHERS, NOT INCLUDED IN CONTRACT)
Subtotal: 10 1 0 1 0 1 0 1 0 $ -
6.0
PROPERTY AND ROW SERVICES (PENDING REQUIREMENTS BY OTHERS, NOT INCLUDED IN CONTRACT)
Subtotal: 0 0 0 0 0 $ -
7.0
PUBLIC OUTREACH / ENGAGEMENT
Subtotal: 0 0 0 0 0 $ -
8.0
60% PSE AND DRAFT TECHNICAL REPORTS
Subtotal: 0 0 0 0 0 $ -
9.0
90% CONSTRUCTION DOCUMENTS AND FINAL TECHNICAL REPORTS
Subtotal: 0 0 0 0 0 $ -
10.0
100%FINAL DESIGN
0
0
01
0
1 0
$ -
Subtotall
14
8
1 34
1 32
1 4
$ 19,962.00
Direct Expenses:
SUBTOTAL:
$ 19,962.00
Packet Pg. 341 8
4.G
PARKS, RECREATION AND COMMUNITY SERVICES
DEPARTMENT
4^4� Julie Parascondola, CPRE, Director
•
KENT 220 Fourth Avenue South
WASHI NGTON Kent, WA 98032
253-856-5100
DATE: February 4, 2025
TO: Kent City Council - Committee of the Whole
SUBJECT: 2025-2029 Art Plan - Approve
MOTION: I move to approve the 2025-2029 City Art Plan, and authorize the
Mayor to sign all documents necessary to implement the Art Plan within
established budgets, subject to contract terms and conditions acceptable
to the Parks Director and City Attorney.
SUMMARY: As required by Ordinance 2552 and Chapter 4.04 of the Kent City
Code, the Kent Arts Commission has approved an annual plan outlining
expenditures of the $2 per capita City Art fund to be approved by the City Council.
BUDGET IMPACT: None.
SUPPORTS STRATEGIC PLAN GOAL:
Evolving Infrastructure - Connecting people and places through strategic investments in physical
and technological infrastructure.
Thriving City - Creating safe neighborhoods, healthy people, vibrant commercial districts, and
inviting parks and recreation.
Sustainable Services - Providing quality services through responsible financial management,
economic growth, and partnerships.
Inclusive Community - Embracing our diversity and advancing equity through genuine community
engagement.
ATTACHMENTS:
1. 2025_ArtPlan_5_Year_Plan_FINAL (PDF)
Packet Pg. 342
4.G.a
CITY OF KENT
Parks, Recreation & Community Services
Kent Arts Commission
2025 CITY ART PLAN
FIVE YEAR CITY ART PLAN, 2025 - 2029
Kent City Code 4.04
Approved:
Visual Arts Committee 12/11/24
Kent Arts Commission 1/8/25
City Council Committee of the Whole:
City Council
Packet Pg. 343
4.G.a
CITY OF KENT
Parks, Recreation & Community Services
Kent Arts Commission
2025 CITY ART PLAN
(Budget for 19026223.4310)
Account Balance as of 1/1/2025
(Estimated 1/22/25)
$704,485
Does not include 2025 per capita funding which transfers to the
project account at the end of the year (estimated to be
approximately $104,620 after administrative expenses.)
2025 Projects
Cost
Garrison Creek Renovation Artwork
$114,000
East Hill North Park Artwork (Earmark)
$92,000
Springwood Park Reimagining Artwork
$80,000
Uplands Playfield and Spray Park
$160,000
Digital Art Project/Kent-Kherson
$2,500
Portable Collection Purchases
$10,000
Maintenance and Programming
38 524
Opportunity fund/Savings for Future Projects
$207,461
TOTAL:
$704,485
2025 estimated population (140,400) x $2/ca ita
$280,800
2025 Salary and Administration (supplies,
professional services, routine maintenance/repair)
$176,180
Anticipated transfer to project account at close of
2025:
$104,620
2
Packet Pg. 344
4.G.a
KENT ARTS COMMISSION
2025 CITY ART PLAN NARRATIVE
Project Title: Capital Project Artwork(s) - Garrison Creek Park Renovation
Project Description: The Parks Department plans to renovate and update existing park facilities
to create more recreation opportunities at Garrison Creek Park. The project will focus on
upgrading the surface and facilities located on the existing cistern lid, including new court
surfaces for pickleball, basketball, and tennis alongside playground features. The project will also
update the walking loop, increase parking, and renovate the plaza. Construction is anticipated to
begin in 2026. The Arts Commission directly selected artist Elizabeth Conner to work with City
staff and the Berger Partnership design team to identify opportunities for artwork and to create
art for the park.
Estimated Costs: $114,000 ($120,000 total budget, $6,000 paid out in '24)
Funding Source: 2025 City Art Plan: $0
2024 City Art Plan: $114,000
City Partner(s): Parks Planning and Development
Background: Public art has long been part of the amenities at Garrison Creek Park. Artist
Elizabeth Conner created "Underground Secrets," a variety of art pieces installed at the park in
1999. This integrated artwork leads visitors through the space, while also revealing the presence
of the underground reservoir in whimsical ways using recycled pipes, valves, and water -related
mechanisms. The Arts Commission deaccessioned the 25-year-old artwork, which now requires
more frequent maintenance, in late 2023 in preparation for the new project.
Location: Garrison Creek Park, 9615 S. 218t" Street
Project Title: Capital Project Artwork(s) - East Hill North Community Park
Project Description: (While this project is currently on hold, the Arts Commission is retaining and
earmarking the public art budget for when the project resumes.) The Parks Department is
undertaking the development of a new community park in the East Hill North region of the city.
The site is a beautiful and unique property that provides an opportunity for community members
to connect with nature. The property's long, central ridge line meadow is grounded by forest and
wetlands on either side, framing views towards the Cascade foothills and Mt. Rainier. With
wetland surrounding it and unincorporated King County land along the Soos Creek corridor to
the east, the areas around the site will remain wild and mostly undeveloped into the future.
Kent's Parks Planning and Development division has developed a master plan informed by public
engagement.
Estimated Costs: $92,000 ($100,000 total budget, $8,000 paid out in '24)
Funding Source: 2025 City Art Plan: $0
2024 City Art Plan: $92,000
City Partner: Parks Planning and Development
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4.G.a
Background: The Arts Commission posted an open call to artists to submit qualifications for the
project, and subsequently selected artist Vaughn Bell to create artwork to complement the
environment and views in coordination with Site Workshop Landscape Architecture.
Location: East Hill North neighborhood
Project Title: Capital Project Artwork(s) - Springwood Park Reimagining Artwork
Project Description: After an extensive public engagement and design process, Springwood Park
is under construction. The reimagined park will be a vibrant, inclusive, and welcoming
neighborhood gathering space on the East Hill of Kent. It will include a multi -sport court
incorporating both futsal and basketball, a park shelter with tables, a bench swing, two play
areas for different ages, swings, a zip line, a cooling station, a new hill slide, and artwork
including two to three sculptures.
Estimated Costs:
Fundina Source:
City Partner:
2025 City Art Plan: $0
2024 City Art Plan: $80,000
Parks Planning and Development
Background: The Kent Arts Commission will post an open call to artists residing in Washington
State to submit qualifications for the project.
Location: Springwood Park, 12700 SE 274th Street
Project Title: Capital Project Artwork(s) - Uplands Playfield and Spray Park
Project Description: The existing ballfields and dugouts at Uplands Playfields will be redeveloped
to completely transform this existing 2.3-acre park space in downtown Kent into a Spray Park
destination for Kent residents and the south Puget Sound region. In addition to the spray park,
the project will construct a new restroom to support the spray park use and serve as an
Interurban Trailhead. Further improvements include a children's play area, shade structures,
loop trails, plaza space, landscaping improvements, and trailside amenities.
Estimated Costs: $160,000
Funding Source: 2025 City Art Plan: $100,000
2024 City Art Plan: $60,000 reassigned
City Partner: Parks Planning and Development
Background: The Arts Commission will post an open call to artists to submit qualifications for the
project. The artist or artist team will work with Parks Planning Development and consultants to
create a significant artwork or artworks for this site.
Location: Downtown, 836 West Smith Street
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4.G.a
Project Title: Art Project - Kherson Park/Digital Artwork
Project Description: The Parks Department was proud to complete and open a newly renovated,
space-themed park at 307 West Gowe Street in 2023. The park design includes a Lunar Rover
replica, a life-sized astronaut, and a large screen with projection capabilities. The Arts
Commission provides artistic content for the projection component through the Digital Art
Project, which commissions new artwork from digital/video specific artists.
Estimated Costs:
Funding Source:
City Partner:
$2,500
2025 City Art Plan: $2,500
Parks Planning and Development
Background: 2023 marked the inaugural year of the Digital Art Project at Kherson Park. Seven
artworks by five artists were chosen from a pool of 44 applicants from across the country. The
video artworks are displayed at Kherson Park via the new projector system. The artists range
from local (Kent) and regional (Mountlake Terrace), to national (Indiana, Florida, and New York).
The Arts Commission will commission new video artworks for 2024.
Location: Kent-Kherson Park, 307 West Gowe Street
Project Title: Summer Art Exhibit Purchase Program
Project Description: Purchase quality artworks from area artists that enhance the value of the
City Portable Art collection. The artworks are exhibited in publicly accessible areas of City
facilities, helping to beautify Kent. Budget for artwork purchases ensures high quality of
applicants to Summer Art Exhibit and allows for more strategic purchases.
Estimated Costs: $10,000
Funding Source: 2025 City Art Plan: $10,000
City Partner: Facilities
Background: The City of Kent Arts Commission collection of portable artwork includes a variety
of two-dimensional artworks. Artwork is acquired through the Kent Summer Art Exhibit purchase
award program. The portable collection introduces art into areas where the community does
business. A work environment that includes amenities such as art has been shown to increase
productivity and job satisfaction, but the primary purpose is serving the public.
Location: City of Kent facilities
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4.G.a
Project Title: Collection Maintenance and Programming
Project Description: Projects include outdoor sculpture maintenance and collection repair,
helping to sustain existing assets. Projects in 2023 may include assessment and decommission
of Daily Migration train corridor sculptures (Dos Remedios, 2005); and various repair and
maintenance projects.
Estimated Costs: $38,524
Funding Source: 2025 City Art Plan: $4,888
2024 City Art Plan: $33,636 (carry-over)
Background: This fund may be used for maintaining and providing programming for existing
artworks.
Project Title: Opportunity fund (capital projects, strategic art acquisition, economic development
implementation) and savings for future projects
Project Description: Identify and implement art project(s) to address City and community goals
This funding allows the Arts Commission to incorporate significant artwork into capital projects,
acquire artwork for specific locations or needs, and contribute artwork to implementation of the
City of Kent Economic Development Plan. Possibilities include projects in partnership with
Economic Development and/or the Kent Downtown Partnership and acquiring artwork to
strategically build the City's collection. This fund also allows the Arts Commission to set funding
aside for upcoming capital projects.
Estimated Costs: $207,461
Funding Source: 2025 City Art Plan: $0
2024 City Art Plan: $207,461 (carry-over)
City Partner: Economic Development, Parks Planning and Development
Background: Kent Arts Commission staff regularly engages in discussions with Economic
Development staff, Parks Planning and Development staff, and the Kent Downtown Partnership
about ways to partner and use art to achieve community goals.
Location(s): TBD
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4.G.a
KENT ARTS COMMISSION CITY ART 5 YEAR PLAN: 2024 - 2028
(continued on next page)
2025 PROJECTS
COSTS
Account balance:
$704,485
Projects
Capital Art Project: Garrison Creek Renovation
114,000
Capital Art Project: East Hill North Community Park
92,000
Art Project: Kherson Park/Digital Artwork
2,500
Portable Collection Purchases
10,000
Capital Art Project: Uplands Playfield and Spray Park
160,000
Capital Art Project: Springwood Park Reimagining Artwork
80,000
Opportunity Fund/Future Projects
207,461
Collection maintenance and programming
38,524
Total
$704,485
2026 PROJECTS
COSTS
Estimated account balance: (assuming $280K for per cap - $180K admin +
$307,461
opp. fund from previous year)
Projects
Art Project: Downtown Rotating Mural Project
40,000
Art Project: Traffic Signal Control Box Project
40,000
Portable Collection Purchases
10,000
Opportunity Fund/Future Projects
192,461
Collection maintenance and programming
25,000
Total
$307,461
2027 PROJECTS
COSTS
Estimated account balance: (assuming $280K for per cap - $185K
$287,461
admin. + opp. fund from previous year)
Projects
Capital Art Project(s): Campus Park Artwork, North Meridian Park,
200,000
Kherson Park Expansion, Mill Creek Canyon Trails
Portable Collection Purchases
10,000
Art Project: Kherson Park/Digital Art
3,000
Opportunity Fund/Future Projects
44,461
Collection maintenance and programming
30,000
Total
$287,461
2028 PROJECTS
COSTS
Estimated account balance: (assuming $280K per cap - $190K admin +
$134,461
opportunity fund from previous year)
Projects
Capital Art Project(s): Campus Park Artwork, North Meridian Park,
60,000
Kherson Park Expansion, Mill Creek Canyon Trails
Art Project: Traffic Signal Control Box Project
40,000
Portable Collection Purchases
10,000
Opportunity Fund/Future Projects
16,461
Collection maintenance and programming
8,000
Total
$134,461
2029 PROJECTS
COSTS
Estimated account balance: (assuming $280K per cap - $195K admin +
101,461
opportunity fund from previous year)
Projects
Art Project: Downtown Rotating Mural Project
45,000
Capital Art Project(s): TBD
36,000
Art Project: Kherson Park/Digital Artwork
3,500
Portable Collection Purchases
10,000
Opportunity Fund/Future Projects
0
Collection maintenance and programming
6,961
Total
$88,000
Packet Pg. 349
4.H
•
4^4�
KENT
WASH NGTON
DATE: February 4, 2025
POLICE DEPARTMENT
Rafael Padilla, Police Chief
220 Fourth Avenue South
Kent, WA 98032
253-852-2121
TO: Kent City Council - Committee of the Whole
SUBJECT: Renew Agreement with Flock Group, Inc. - Authorize
MOTION: I move to authorize the Mayor to renew the City's contract with
Flock Group, Inc., within the budget previously approved by Council, until
the contract is terminated as provided for by its terms, and ratify all acts
consistent with the authority granted by this motion.
SUMMARY: The Kent Police Department uses Flock Group, Inc.'s ("Flock")
automated license plate recognition (ALPR) cameras which are mounted in
stationary positions around the City. The cameras are used to locate missing or
endangered persons (such as those associated with AMBER or Silver Alerts), to
locate wanted suspects involved in felony crimes, to locate stolen vehicles or
vehicles with stolen license plates, to identify vehicles believed to have been
involved in crimes which are being investigated by Kent Police officers, and to
canvass crime scenes for vehicles that may have been used by suspects to drive to
or flee the scene of a crime.
The City initially entered into a contract with Flock on September 6, 2022, with the
first year of service beginning on January 1, 2023. Since the first year of service,
Flock cameras have been instrumental in aiding or solving several hundred Kent
Police cases and locating multiple stolen cars, stolen license plates, crime vehicles,
and missing persons within the City. Of note, these numbers are specific to the
Flock cameras alone, as the Kent Police Department has previously utilized ALPR
tools from other vendors since at least 2008.
The first year's contract (2023) with Flock cost $73,767, of which $32,000 was paid
with a grant from the Washington Auto Theft Prevention Authority. The contract
automatically renews on an annual basis, unless terminated in accordance with
contract terms. The second year's contract (2024) will cost approximately $50,692
due to credits received for uninstalled hardware. The ongoing annual renewal cost
is estimated to be approximately $77,000.
BUDGET IMPACT: The costs will be paid for with the city's red light camera
revenue.
SUPPORTS STRATEGIC PLAN GOAL:
Packet Pg. 350
4.H
Innovative Government - Delivering outstanding customer service, developing leaders, and
fostering innovation.
Thriving City - Creating safe neighborhoods, healthy people, vibrant commercial districts, and
inviting parks and recreation.
ATTACHMENTS:
1. Flock Group, Inc Services Agreement (PDF)
Packet Pg. 351
DocuSign Envelope ID: 3E54639A-8296-4C41-8E11-08EAOE82E5E4
4.H.a
FLOCK GROUP INC.
SERVICES AGREEMENT
ORDER FORM
This Order Form togetherwith the Terms (as defined herein) describe the relationship between Flock Group Inc.
("Flock") and the customer identified below ("Agency") (each of Flock and Customer, a "Party"). This order form
("Order Form") hereby incorporates and includes the "GOVERNMENT AGENCY AGREEMENT" attached (the "Terms ")
which describe and set forth the general legal terms governing the relationship (collectively, the "Agreement" ).
The Terms contain, among otherthings,warranty disclaimers, liability limitations and use limitations.
The Agreement will become effective when this Order Form is executed by both Parties (the "Effective Date").
Agency: WA - Kent PD
Legal Entity Name:
Address:
232 4th Ave S
Kent, Washington 98032
Expected Payment Method:
ContactName: Chris Mills
Phone: (253) 856-5825
E-Mail: cmills@kentwa.gov
Billing Contact:
(if different than above)
Initial Term: 12 months Billing Term: Annualpayment due Net 30 perterms
Renewal Term: 12 months I and conditions
Packet Pg. 352
DocuSign Envelope ID: 3E54639A-8296-4C41-8E11-08EAOE82E5E4
4.H.a
Name
Price
QTY
Subtotal
Wing Replay
$0.00
4.00
$0.00
Wing Implementation Fee
500.00
1.00
$500.00
Flock Safety Advanced Search
$2,500.00
1.00
$2,500.00
Wing LPR
$1,500.00
5.00
$7,500.00
Falcon
$2,500.00
20.00
$50,000.00
Standard Implementation Fee
$325.00
20.00
$6,500.00
(Includes one-time fees)
Year 1 Total: $67,000.00
Recurring Total: $60,000.00
Special Terms: Agency will pay Flock one hundred percent (100%) of the first Usage Fee, the
Implementation Fee and any fee for Hardware asset forth on the Order Form on or before the 30th
day following receipt of initial invoice on or around January 1, 2023.
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DocuSign Envelope ID: 3E54639A-8296-4C41-8E11-08EA0E82E5E4
4.H.a
frock safety
I have reviewed and agree to the Customer Implementation Guide on Schedule B at the end of this
agreement.
By executing this Order Form, Agency represents and warrants that it has read and agrees all of the terms
and conditions contained in the Terms attached The Parties have executed this Agreement as of the dates set forth
below.
FLOCK GRO J;gfed bY:'I Agency: WA - Kent PD
ACSC931454C24F3... ���
By: By: 111
Mark smith
Name:
General Counsel
Title:
8/31/2022
Date:
Title:
Date: 09/06/2022
Packet Pg. 354
DocuSign Envelope ID: 3E54639A-8296-4C41-8E11-08EAOE82E5E4
4.H.a
GOVERNMENT AGENCY AGREEMENT
This Government Agency Agreement (this "Agreement") is entered into by and between Flock Group, Inc.
with a place of business at 1170 Howell Mill Rd NW Suite 210, Atlanta, GA 30318 ("Flock") andthe police
department or government agency identified in the signature block of the order form ("Agency") (each a "Party,"
and together, the "Parties").
RECITALS
WHEREAS, Flock offers a software and hardware solution for automatic license plate detection through
Flock's technology platform (the "Flock Service"), and upon detection, the Flock Services are capable of capturing
audio, image, and recordings data of suspected vehicles ("Footage") and can provide notifications to Agency upon
the instructions of Non-AgencyFnd User ("Notifications");
u�
WHEREAS, Agency desires access to the Flock Service on existing cameras, provided by Agency, or le
Flock provided Hardware (as defined below) in order to create, view, search and archive Footage and receive
d
Notifications, including those from non -Agency users ofthe Flock Service (where there is an investigative or bona d
L
fide lawful purpose) such as schools, neighborhood homeowners associations, businesses, and individual users; �
WHEREAS, Flock deletes all Footage on a rolling thirty (30) day basis, Agency is responsible for
extracting, downloading and archiving Footage from the Flock System on its own storage devices for auditing for
pros ecutorial/administrative purposes; and
WHEREAS, Flock desires to provide Agency the Flock Service and any access thereto, subject to the
terms and conditions of this Agreement, solely for the awareness, prevention, and prosecution of crime, bona fide
investigations by police departments, and archiving for evidence gathering ("Purpose").
AGREEMENT
NOW, THEREFORE, Flock and Agency agree as follows and further agree to incorporate the Recitals
into this Agreement.
Packet Pg. 355
DocuSign Envelope ID: 3E54639A-8296-4C41-8E11-08EAOE82E5E4
4.H.a
1. DEFINITIONS
Certain capitalized terms, not otherwise defined herein, have the meanings set forth or cross-referenced in this
Section 1.
1.1 "Agency Data" will mean the data, media and content provided by Agency through the Services. For the
avoidance of doubt, the Agency Data will include the Footage.
1.2. "Agency Hardware " shall mean the third -party camera owned or provided by Agency and any otherphysical
elements that interact with the Embedded Software and the Web Interface to provide the Services. The term
"Agency Hardware " excludes the Embedded Software
1.3 "Authorized End User(s)" shall mean any individual employees, agents, orcontractors of Agency accessing or
using the Services through the Web Interface, under the rights granted to Agency pursuant to this Agreement.
1.4 "Documentation" will mean text and/or graphical documentation, whether in electronic or printed format, that
describe the features, functions and operation of the Services which are provided by Flock to Agency in accordance
with the temps of this Agreement.
1.5 "Embedded Software" will mean the software and/or firmware embedded or preinstalled on the Agency
Hardware.
1.6 "FlockIP" will mean the Services, the Documentation, the Embedded Software, the Installation Services, and
any and all intellectual property therein or otherwise provided to Agency and/or its Authorized End Users in 3
d
connection with the foregoing.
m
1.7 "Footage" means still images captured by the Agency Hardware in the course of and provided via the Services.
1.8 "Hardware" or "Flock Hardware" shall mean the Flock cameras or device, pole, clamps, solar panel, N
installation components, and any other physical elements that interact with the Embedded Software and the Web
c
Interface to provide the Flock Services. The term "Hardware" excludes the Embedded Software.
E
1.9 "Implementation Fee(s)" means the monetary fees associated with the Installation Services, as defined in m
Section 1.10 below.
1.10 "Installation Services" means the services provided by Flock including any applicable installation of
Embedded Software on Agency Hardware.
1.11 "Non Agency End User(s)" shall mean any individual, entity, or derivative therefrom, authorized to use the
Services through the Web Interface, under the rights granted to pursuant to the terms (or to those materially similar)
of this Agreement.
1.12 "Services" or "Flock Services" means the provision, via the Web Interface, of Flock's software application for
automatic license plate detection, searching image records, and sharing Footage.
1.13 "Support Services" shall mean Monitoring Services, as defined in Section 2.9 below.
1.14 "Unit(s)" shall mean the Agency Hardware togetherwith the Embedded Software.
1.15 "Usage Fee" means the subscription fees to be paid by the Agency for ongoing access to Services.
1.16 "Web Interface" means the website(s) or application(s) through which Agency and its Authorized End Users
can access the Services in accordance with the terms of this Agreement.
2. SERVICES AND SUPPORT
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2.1 Provision of Access. Subject to the terms of this Agreement, Flock hereby grants to Agency a non-exclusive,
non -transferable right to access the features and functions of the Services via the Web Interface during the Service
Term (as defined in Section 6.1 below), solely for the Authorized End Users. The Footage will be available for
Agency's designated administrator, listed on the order form, and any Authorized End Users to access via the Web
Interface for thirty (30) days. Authorized End Users will be required to sign up for an account and select a password
and username ("User ID"). Flock will also provide Agency with the Documentation to be used in accessing and
using the Services. Agency shall be responsible for all acts and omissions of Authorized End Users, and any act or
omission by an Authorized End User which, if undertaken by Agency,would constitute abreach of this Agreement,
shall be deemed a breach of this Agreement by Agency. Agency shall undertake reasonable efforts to make all
Authorized End Users aware of the provisions of this Agreement as applicable to such Authorized End User's use of
the Services, and shall cause Authorized End Users to comply with such provisions. Flock may use the services of
one or more third parties to deliver any part of the Services, including without limitation using a third party to host
the Web Interface which makes the Services available to Agency and Authorized End Users. Warranties provided by
said third party service providers are the agency's sole and exclusive remedy and flock's sole and exclusive liability
with regard to such third -party services, including without limitation hosting the web interface. Agency agrees to
comply with any acceptable use policies and other temps of any third -party service provider that are provided or
otherwise made available to Agency from time to time, so long as these policies do not conflict with Washington
laws.
2.2 Embedded Software License. Subject to all terms of this Agreement, Flock grants Agency a limited, non-
exclusive, non -transferable, non-sublicens able (except to the Authorized End Users), revocable right to use the W
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Embedded Software as installed on the Hardware or Agency Hardware; in each case, solely as necessary forAgency
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to use the Services. E
2.3 Documentation License. Subject to the ternis of this Agreement, Flock hereby grants to Agency a non- m
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exclusive, non -transferable right and license to use the Documentation during the Service Term to Agency in Q
connection with its use of the Services as contemplated herein, and under Section 2.4 below. a)
2.4 Usage Restrictions.
a. Flock IP. The purpose for usage ofthe Unit, Documentation, Services, support, and Flock IP is solely to
facilitate gathering evidence that could be used in a lawful criminal investigation by the appropriate government
agency and not for tracking activities that the system is not designed to capture ("Permitted Purpose"). Agency will
not, and will not permit any Authorized End Users to, (i) copy or duplicate any of the Flock IP; (ii) decompile,
disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software
component of any of the Flock IP is compiled or interpreted, or apply any other process orprocedure to derive the
source code of any software included in the Flock IP, or attempt to do any of the foregoing, and Agency
acknowledges that nothing in this Agreement will be construed to grant Agency any right to obtain or use such
source code; (iii) modify, alter, tamper with or repair any of the Flock IP, or create any derivative product from any
of the foregoing, or attempt to do any of the foregoing, except with the prior written consent of Flock; (iv) interfere
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4.H.a
or attempt to interfere in any manner with the functionality or proper working of any of the Flock IP; (v) remove,
obscure, or alter any notice of any intellectual property or proprietary right appearing on or contained within any of
the Services or Flock IP; (vi) use the Services, support, Unit, Documentation or the Flock IP for anything other than
the Permitted Purpose; or (vii) assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey, or pledge as
security or otherwise encumber, Agency's rights under Sections 2.1, 2.2, or 2.3.
b. Flock Hardware. Agency understands that all Flock Hardware is owned exclusively by Flock, and that
title to any Flock Hardware does notpass to Agency upon execution of this Agreement. Agency is not permitted to
remove, reposition, re -install, tamper with, alter, adjust or otherwise take possession orcontrol of Flock Hardware.
Notwithstanding the notice and cure period set forth in Section 6.3, Agency agrees and understands that in the event
Agency is found to engage in any of the restricted actions of this Section 2.4(b), all warranties herein shall be null
and void, and this Agreement shall be subject to immediate termination (without opportunity to cure) for material
breach by Agency.
2.5 Retained Rights; Ownership. As between the Parties, subject to the rights granted in this Agreement, Flock
and its licensors retain all right, title and interest in and to the Flock IP and its components, and Agency
acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by
this Agreement. Agency further acknowledges that Flock retains the right to use the foregoing for any purpose in
Flock's sole discretion. There are no implied rights.
2.6 Suspension. Notwithstanding anything to the contrary in this Agreement, Flock may temporarily suspend
Agency's and any Authorized End User's access to any portion or all of the Flock Ili or Flock Hardware if (i) Flock
reasonably determines that (a) there is a threat or attack on any of the Flock IP; (b) Agency's or any Authorized End W
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User's use of the Flock IP disrupts or poses a security risk to the Flock IP or any otherAgency or vendorof Flock;
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(c) Agency or any Authorized End User is/are using the Flock IP for fraudulent or illegal activities; (d) Flock's E
provision of the Services to Agency or any Authorized End User is prohibited by applicable law; (e) any vendorof m
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Flock has suspended orterminated Flock's access to or use of any third party services or products required to enable Q
Agency to access the Flock IP; or (f) Agency has violated any term of this provision, including, but not limited to, d
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utilizing the Services for anything other than the Permitted Purpose (each such suspension, in accordance with this
Section 2.6, a "Service Suspension"). Flock will make commercially reasonable efforts, circumstances permitting,
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to provide written notice of any Service Suspension to Agency (including notices sent to Flock's registered email a
address) and to provide updates regarding resumption of access to the Flock IP following any Service Suspension. o
Flock will use commercially reasonable efforts to resume providing access to the Service as soon as reasonably Y
possible after the event giving rise to the Service Suspension is cured. Flock will have no liability for any damage, c
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liabilities, losses (including any loss of data or profits) or any other consequences that Agency or any Authorized
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End User may incur as a result of a Service Suspension. To the extent that the Service Suspension is not caused by E
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Agency's direct actions or by the actions of parties associated with the Agency, the expiration of the Term will be M
tolled by the duration of any suspension (forany continuous suspension lasting at least one full day) prorated for the Q
proportion of cameras on the Agency 's account that have been impacted.
2.7 Installation Services.
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2.7.1 Designated Locations. For installation of Flock Hardware, prior to performing the physical installation
of the Units, Flock shall advise Agency on the location and positioning of the Units for optimal license plate image
capture, as conditions and location allow. Flock may consider input from Agency regarding location, position and
angle of the Units (each Unit location so designated by Agency, a "Designated Location"). Flock shall have final
discretion on location of Units. Flock shall have no liability to Agency resulting from any poor performance,
functionality or Footage resulting from or otherwise relating to the Designated Locations or delay in installation due
to Agency's delay in confirming Designated Locations, in ordering and/or having the Designated Location ready for
installation including having all electrical work pre installed and pe rmits ready, if necessary. The deployment plan will
confirm the Designated Location. After installation, any subsequent changes to the deployment plan ("Reinstalls")
will incur a charge for Flock's then -current list price for Reinstalls, as listed in the then -current Reinstall Policy
(available at https://www.flocksafety.conVreinstaU-fee-schedule) and any equipment charges. These changes include
but are not limited to camera re -positioning, adjusting of camera mounting, re -angling, removing foliage, camera
replacement, changes to heights of poles, regardless ofwhetherthe need for Reinstalls related to vandalism, weather,
theft, lack of criminal activity in view, and the like. Flock Safety shall have full discretion on decision to reinstall
Flock Hardware.
2.7.2 Agency installation Obligations. Agency agrees to allow Flock and its agents reasonable access in and
near the Designated Locations at all reasonable times upon reasonable notice for the purpose of performing the
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installation work. Although the Units are designed to utilize solar power, certain Designated Locations may require a CM
reliable source of 120V AC power, as described in the deployment plan. In the event adequate solar exposure is not
available, Agency is solely responsible forproviding a reliable source of 120V AC power to the Units, if necessary.
Additionally, Agency is solely responsible for (i) any permits or associated costs, and managing the permitting process
of installation of cameras or AC power; (ii) any federal, state or local taxes including property, license, privilege,
sales, use, excise, gross receipts or other similar taxes which may now or hereafter become applicable to, measured
by or imposed upon or with respect to the installation of the Hardware, its use (excluding taxexempt entities), or (iii)
any other supplementary cost for services performed in connection with installation of the Hardware, including but
not limited to contractor licensing, engineered drawings, rental of specialized equipment or vehicles, third -party
personnel (i.e. Traffic Control Officers, Electricians, State DOT -approved poles, etc., if necessary), such costs to be
approved by the Agency ("Agency Installation Obligations"). In the event that a Designated Location for a Unit
requires permits, Flock will provide the Agency with a temporary alternate location for installation pending the
permitting process. Once the required permits are obtained, Flock will relocate the Units fromthe temporary alternate
location to the permitted location at no additional cost. Flock will provide options to supply power at each Designated
Location. If Agency refuses alternative power supply options, Agency agrees and understands that Agency will not
be subject to any reimbursement, tolling, or credit for any suspension period of Flock Services due to low solar. Flock
will make all reasonable efforts within their control to minimize suspension of Flock Services. Any fees payable to
Flock exclude the foregoing. Without being obligated or taking any responsibility for the foregoing, Flock may pay
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and invoice related costs to Agency if Agency did not address themprior to the execution of this Agreement or a third
party requires Flock to pay. Agency represents and warrants that it has all necessary right title and authority and
hereby authorizes Flock to install the Hardware at the Designated Locations and to make any necessary inspections
or tests in connection with such installation. Flock is not responsible for installation of Agency Hardware.
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2.7.3 Flock's Obligations. Installation of any Flock Hardware shall be installed in a workmanlike manner in N
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accordance with Flock's standard installation procedures, and the installation will be completed within a reasonable r
time from the time that the Designated Locations are confirmed. Fo llo wing the initial installation of the Hardware and a
any subsequent Reinstalls or maintenance operations, Flock's obligation to perform installation work shall cease;
however, forthe sole purpose of validating installation, Flock will continue to monitor the performance of the Units 0:
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for the length of the Term and will receive access to the Footage for a period of three (3) business days after the initial (007
installation in order to monitor performance and provide any necessary maintenance solely as a measure of quality Y
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control. Agency understands and agrees that the Flock Services will not function without the Hardware. Labor may ILL
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be provided by Flock or a third party. Flock is not obligated to install, reinstall, or provide physical maintenance to 3
Agency Hardware. c
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2.7.4 Security Interest. Flock Hardware shall remain the personal property of Flock and will be removed d
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upon the natural expiration of this Agreement at no additional cost to Agency. Agency shall not perform any acts
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which would interfere with the retention of title of the Hardware by Flock. Should Agency default on any payment of 3
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the Flock Services, Flock may remove Hardware at Flock's discretion. Such removal, if made by Flock, shall not be
deemed a waiver of Flock's rights to any damages Flock may sustain as a result of Agency's default and Flock shall
have the right to enforce any other legal remedy or right. CM
2.8 Hazardous Conditions. Unless otherwise stated in the Agreement, Flock's price for its services under this
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Agreement does not contemplate work in any areas that contain hazardous materials, or other hazardous conditions, E
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including, without limit, asbestos, lead, toxic or flammable substances. In the event any such hazardous materials are a�
discovered in the designated locations in which Flock is to perform services under this Agreement, Flock shall hav e a
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the right to cease work immediately in the area affected until such materials are removed or rendered harmless. 0
2.9 Support Services. Subject to the payment of fees, Flock shall monitor the performance and functionality of Flock
Services and may, from time to time, advise Agency on changes to the Flock Services, Installation Services, or the c
Designated Locations which may improve the performance or functionality of the Services or may improve the quality
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of the Footage. The work, its timing, and the fees payable relating to such work shall be agreed by the Parties prior to a
any alterations to or changes of the Services or the Designated Locations ("Monitoring Services"). Subject to the 0
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terms hereof, Flock willprovide Agency with reasonable technicaland on -site support and maintenance services ("On- ILL
Site Services") in -person or by email at supnortafflocksafety.com Flock will use commercially reasonable efforts to m
respond to requests for support as soon as possible, but in no event longer than (2) two business days.
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2.10 Special Terms. From time to time, Flock may offer certain "Special Terms" related to guarantees, service and Q
support which are indicated in the proposal and on the order form and will become part of this Agreement, upon
Agency's consent. To the extent that any terms of this agreement are inconsistent or conflict with the Special Terms,
the Special Terms shall control.
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2.11 Changes to Platform Flock may, in its sole discretion, make any changes to any systemor platform that it
deems necessary or usefulto (i) maintain or enhance (a) the quality or delivery of Flock's products or services to its
Agencies, (b) the competitive strength of, or market for, Flock's products orservices, (c) such platform or system's
cost efficiency or performance, or (ii) to comply with applicable law.
3. RESTRICTIONS AND RESPONSIBILITIES
3.1 Agency Obligations. Flock will assist Agency end -users in the creation of a User ID. Agency agrees to provide
Flock with accurate, complete, and updated registration information. Agency may not select as its User ID a name
that Agency does not have the right to use, or anotherperson's name with the intent to impersonate that person.
Agency may not transfer its account to anyone else without prior written permission of Flock. Agency willnot
share its account or password with anyone, and must protect the security of its account and password. Agency is
responsible for any activity associated with its account. Agency shall be responsible for obtaining and maintaining
any equipment and ancillary services needed to connect to, access orotherwise use the Services. Agencywill, at its
own expense, provide assistance to Flock, including, but not limited to, by means of access to, and use of, Agency
facilities, as well as by means of assistance from Agency personnel, to the limited extent any of the foregoing may
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be reasonably necessary to enable Flock to perform its obligations hereunder, including, without limitation, any
obligations with respect to Support Services or any Installation Services.
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3.2 Agency Representations and Warranties. Agency represents, covenants, and warrants that Agency will use
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the Services only in compliance with this Agreement and all applicable laws and regulations, including but not
limited to any laws relating to the recording or sharing of video, photo, or audio content. Although Flock has no
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obligation to monitor Agency's use of the Services, Flock may do so and may prohibit any use of the Services it
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believes may be (or alleged to be) in violation of the foregoing. Q
4. CONFIDENTIALITY; AGENCY DATA
4.1 Confidentiality. To the extent allowable by applicable FOIA and state -specific Public Records Acts, each Party
(the "Receiving Party") understands that the other Party (the "Disclosing Party") has dis clos ed or may disclose
bus ines s, technical or financial information relating to the Disclosing Party's business (hereinafter referred to as
"Proprietary Information" of the Disclosing Party). Proprietary Information of Flock includes non-public
information regarding features, functionality and performance of the Services. Proprietary Information of Agency
includes non-public data provided by Agency to Flock or collected by Flock via the Unit, including the Footage, to
enable the provision of the Services, which includes but is not limited to geolocation information and environmental
data collected by sensors built into the Units ("Agency Data"). The Receiving Party agrees: (i) to take the same
security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party
takes with its own proprietary information, but in no eventwill a party apply less than reasonable precautions to
protect such Proprietary Information, and (h) not to use (except in performance of the Services or as otherwise
permitted herein) or divulge to any third person any such Proprietary Information. Flock's use of the Proprietary
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Information may include processing the Proprietary Information to send Agency alerts, such as when a car exits
Agency's neighborhood, or to analyze the data collected to identify motion or otherevents. The Disclosing Party
agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a)
is or becomes generally available to the public, or (b) was in its possession orknown by it prior to receipt from the
Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently
developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will
prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental
order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to
contest such order. For clarity, Flock may access, use, preserve and/ordisclosethe Footage to law enforcement
authorities, government officials, and/or third parties, if legally required to do so or if Flock has a good faith belief
that such access, use, preservation or disclosure is reasonably necessary to: (a) comply with a legal process or
request; (b) enforce this Agreement, including investigation of any potential violation thereof, (c) detect, prevent or
otherwise address security, fraud or technical issues; or (d) protect the rights, property or safety of Flock, its users, a
third party, or the public as required or permitted by law, including respond to an emergency situation. Agency
hereby expressly grants Flock a non-exclusive, worldwide, perpetual, royalty -free right and license (during and after
the term hereof) to disclose the Agency Data (inclusive of any Footage) to enable law enforcement monitoring
against law enforcement hotlists as well as provide Footage search access to law enforcement for investigative
purposes only. Flock may store deleted Footage in order to comply with certain legal obligations but such retained
Footage will not be retrievable without a valid court order.
4.2 Agency Data. As between Flock and Agency, all right, title and interest in the Agency Data, belong to and are
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retained solely by Agency. Agency hereby grants to Flock a limited, non-exclusive, royalty -free, worldwide license
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to use the Agency Data and perform all acts with respect to the Agency Data as may be necessary for Flock to
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provide the Flock Services to Agency, including without limitation the Support Services set forth in Section 2.9
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above and a non-exclusive perpetual, irrevocable worldwide royalty -free, full aid license to use reproduce, ,p �Yp p
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modify and distribute the Agency Data as a part of the Aggregated Data (as defined in Section 4.4 below).As
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between Agency andNon-Agency End Users that have prescribed access ofFootage to Agency, each of Agency and
Non -Agency End Users will share all right, title and interest in theNon-Agency End User Data. This Agreement
does notby itself make any Non -Agency End User Data the sole property or the Proprietary Information of Agency.
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Flock will automatically delete Footage older than thirty (30) days. Agency has a thirty (30)- day window to view,
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save and/ortransmit Footage to the relevant government agency prior to its deletion.
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4.3 Feedback. If Agency provides any suggestions, ideas, enhancement requests, feedback, recommendations or
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other information relating to the subject matter hereunder, Agency hereby assigns (and will cause its agents and
representatives to assign) to Flock all right, title and interest (including intellectual property rights) with respect to or
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resulting from any of the foregoing.
4.4 Aggregated Data. Notwithstanding anything in this Agreement to the contrary, Flock shall have the right to
collect and analyze data that does not refer to or identify Agency or any individuals or de -identifies such data and
other information relating to the provision, use and performance of various aspects ofthe Services and related
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4.H.a
systems and technologies (including, without limitation, information concerning Agency Data and data derived
therefrom). For the sake of clarity, Aggregated Data is compiled anonymous data which has been stripped of any
personal identifying information. Agency acknowledges that Flock will be compiling anonymized and/or aggregated
data based on Agency Data input into the Services (the "Aggregated Data"). Agency hereby grants Flock a non-
exclusive, worldwide, perpetual, royalty -free right and license (during and after the Service Term hereof) to (i) use
and distribute such Aggregated Data to improve and enhance the Services and for other development, diagnostic and
corrective purposes, other Flock offerings, and crime prevention efforts, and (ii) disclose the Agency Data (both
inclusive of any Footage)to enable law enforcement monitoring against law enforcement hotlists as well as provide
Footage search access to law enforcement for investigative purposes only. No rights or licenses are granted except
as expressly set forth herein. Flock shall not sell Agency Data or Aggregated Data.
5. PAYMENT OF FEES
5.1 a Wing Fees. For Wing products, the Agency will pay Flock the first Usage Fee and the Implementation Fee (as
described on the Order Form attached hereto, togetherthe `Initial Fees") as set forth on the Order Form on or
before the 30th day following the Effective Date of this Agreement. Flock shall have no liability resulting from any
delay by the Agency in installing the Embedded Software on the Agency Hardware. If applicable, Agency shallpay
the ongoing Usage Fees set forth on the Order Form with such Usage Fees due and payable thirty (30) days in
advance of each payment period. All payments will be made by either ACH, check, or credit card.
5.1 b Falcon Fees. For Falcon products during the Initial Term, Agency will pay Flock fifty percent (50%) of the N
first Usage Fee, the Implementation Fee and any fee for Hardware (as described on the Order Form attached hereto,
togetherthe "Initial Fees") as set forth on the Order Form on or before the 30th day following receipt of initial d
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invoice after Effective Date. Upon commencement of installation, Flock will issue an invoice for twenty-five
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percent (25%) of the Initial Fees, and Agency shall pay on or before 301h day following receipt of invoice. Upon I
completion of installation, Flock will issue an invoice for the remaining balance and Agency shall pay on or before a)
301h day following receipt of final invoice. Flock is not obligated to commence the Installation Services unless and
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until the first payment has been made and shall have no liability resulting from any delay related thereto. For a
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Renewal Term, as defined below, Agency shall pay the entire invoice on or before the 30th day following receipt of
invoice.
5.2 Changes to Fees. Flock reserves the right to change the fees or applicable charges and to institute new charges
and fees at the end of the Initial Term or any Renewal Terns, upon sixty (60) days' notice prior to the end of such
Initial Term or Renewal Term (as applicable) to Agency (which maybe sent by email). If Agency believes that
Flock has billed Agency incorrectly, Agency must contact Flock no later than s ixty (60) days after the closing date
on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.
Inquiries should be directed to Flock's Agency support department. Agency acknowledges and agrees that a failure
to contact Flock within this sixty (60) day period will serve as a waiver of any claim Agency may have had as a
result of such billing error.
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5.3 Inwicing, Late Fees; Taxes. Flock may choose to bill through an invoice, in which case, full payment for
invoices issued in any given month must be received by Flock thirty (30) days after the mailing date of the invoice.
If Agency is a non -tax exempt entity, Agency shall be responsible for all taxes associated with Services otherthan
U.S. taxes based on Flock's net income.
6. TERM AND TFd2MINATION
6.1a Wing Term. Subject to earlier termination as provided below, the initial term of this Agreement for Wing
products shall be for the period of time set forth on the Order Form (the "Initial Term"). The Term shall commence
upon execution of this Agreement. Following thelnitial Term, unless otherwise indicated on the Order Form, this
Agreement will automatically renewfor successive renewal terms of the greaterof one year or the length set forth
on the Order Form (each, a "Renewal Term", and togetherwith the Initial Term, the "Service Term") unless either
partygives the otherparty notice ofnon-renewal at least thirty (30) daysprior to the end ofthe then -current term.
6.1 b Falcon Term. Subject to earlier termination as provided below, the initial term of this Agreement for Falcon
products shall be for the period of time set forth on the Order Form (the "Initial Term"). The Term shall commence
upon first installation and validation of a Unit. Following thelnitial Term, unless otherwise indicated on the Order
Form, this Agreement will automatically renewfor successive renewal terms for the length setforth on the Order
Form (each, a "Renewal Term", and togetherwith the Initial Term, the "Service Term") unless eitherparty gives
the otherparty notice ofnon -renewal at leastthirty (30) daysprior to the end ofthe then -current term. 'L
6.2 Termination for Convenience. At anytime during the agreed upon Term, an Agency not fully satisfied with the N
service may self -elect to terminate this Agreement for convenience. Termination for convenience will result in a
one-time fee of $500 per Flock Hardware. Upon termination for convenience, a refund will be provided for Falcon d
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Cameras, prorated for any fees for the remaining Term length set forth previously. Agency will remain liable to pay
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the full outstanding fees for any Wing product on the effective date of termination of that Order Form. Flock will
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invoice, and Agency will pay, any unbilled fees and any unpaid fees covering the remainder of the term of that
Order Form had it not been terminated. Termination for convenience of the Agreement by the Agency will be
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effective immediately. Flock will provide advanced written notice and remove all Flock Hardware at Flock's own
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convenience, within a commercially reasonable period of time upon termination. —
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6.3 Termination. Notwithstanding the termination provisions in Section 2.4(b), in the event of any material breach o
of this Agreement, the non -breaching party may tenninate this Agreement prior to the end of the Service Term by
giving thirty (30) days prior written notice to the breaching party; provided, however, that this Agreement will not
terminate if the breaching party has cured the breach prior to the expiration of such thirty (30) day period. Either
party may tenminate this Agreement, without notice and without cost or penalty, (i) upon the institution by or against
the otherparty of insolvency, receivership or bankruptcy proceedings,(ii) upon the otherparty's making an
assignment for the benefit of creditors, or (iii) upon the otherparty's dissolution or ceasing to do business, or(iv) if
the Agency's use of Flock's Hardware or Services is rendered unlawful or impractical pursuant to applicable state or
federal law. Upon termination for Flock's material breach, Flock will refund to Agency a pro -rata portion of the
pre -paid fees for Services not received due to such termination.
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6.4 No -Fee Term. For the Term of this Agreement, Flock will provide Agency with complimentary access to 'hot -
list' alerts, which may include `hot tags', stolen vehicles, Amber Alerts, etc. ("No -Fee Term"). In the event a Non -
Agency End User grants Agency access to Footage and/or Notifications from a Non -Agency End User Unit, Agency
will have access to Non -Agency End User Footage and/orNotifications until deletion, subject to the thirty (30) day
retention policy. Non -Agency End Users and Flock may, in their sole discretion, leave access open. The No -Fee
Term will survive the Term of this Agreement. Flock, in its sole discretion, can determine not to provide additional
No -Fee Terms or can impose a price per No -Fee Term upon thirty (30) days' notice. Agency may terminate any No -
Fee Term or access to future No -Fee Terms upon thirty (30) days' notice.
6.6 Survival. The following Sections will survive termination: 2.4, 2.5, 3, 4, 5 6.4, 7.4, 8.1, 8.2, 8.3, 8.4, 9.1 and
10.5.
7. REMEDY; WARRANTY AND DISCLALMER
7.1 Remedy. Upon a malfunction or failure of Flock Hardware or Embedded Software (a "Defect"), Agency must
notify Flock's technical support as described in Section 2.9 above. If Flock is unable to correct the Defect, Flock
shall, or shall instruct one of its contractors to repair or replace the Flock Hardware or Embedded Software suffering
from the Defect. Flock reserves the right in their sole discretion to refuse or delay replacement or its choice of
remedy for a Defect until after it has inspected and tested the affected Unit provided that such inspection and test
shall occurwithin seventy-two (72) hours after Agency notifies the Flock of a known Defect. hi the event of a
Defect, Flock will repair or replace the defective Unit at no additional cost. In the event that a Unit is lost, stolen, or
damaged, Agency may request that Flock replace the Unit at a fee according to the then -current Reinstall Policy
(https://www.flocksafety.conn reinstaU-fee-schedule) a copy attached hereto in EKhibit _B. Agency shall not be
required to replace subsequently lost, damaged or stolen Units, however, Agency understands and agrees that
functionality, including Footage, will be materially affected due to such subsequently lost, damaged or stolen Units
and that Flock will have no liability to Agency regarding such affected functionality nor shall the Usage Fee or
Implementation Fees owed be impacted. Flock is under no obligation to replace or repair Hardware.
7.2 Exclusions. Flock will not provide the remedy described in Section 7.1 if Agency is found to have misused the
Flock Hardware, Agency Hardware or Embedded Software in any manner.
7.3 Warranty. Flock shall use reasonable efforts consistent with prevailing industry standards to maintain the
Services in a manner which minimizes errors and interruptions in the Services and shall perform the Installation
Services in a professional and workmanlike manner. Upon completion of any installation or repair, Flock shall clean
and leave the area in good condition. Services may be temporarily unavailable for scheduled maintenance or for
unscheduled emergency maintenance, either by Flock or by third -party providers, or because ofother causes beyond
Flock's reasonable control, but Flock shall use reasonable efforts to provide advance notice in writing or by e -mail
of any scheduled service disruption.
7.4 Disclaimer. THE REMEDY DESCRIBED IN SECTION 7.1 ABOVE IS AGENCY 'S SOLE REMEDY, AND
FLOCK'S SOLE LIABILITY, WITH RESPECT TO DEFECTIVE EMBEDDED SOFTWARE. FLOCK DOES
NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT
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DocuSign Envelope ID: 3E54639A-8296-4C41-8E11-08EAOE82E5E4
4.H.a
MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE
SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED
"AS IS" AND FLOCK DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE AND NON -INFRINGEMENT. THIS DISCLAIMER OF SECTION 7.4 ONLY APPLIES TO THE
EXTENT ALLOWED BY THE GOVERNING LAW OF THE STATE MENTIONED IN SECTION 10.6, OR IF
NO STATE IS MENTIONED IN SECTION 10.6, BY THE LAW OF THE STATE OF GEORGIA.
7.5 Insurance. Flock will maintain commercial general liability policies with policy limits reasonably
commensurate with the magnitude of Flock's business risk. Certificates of Insurance can be provided upon request.
7.6 Force Majeure. Flock is not responsible nor liable for any delays or failures in performance from any cause
beyond its control, including, but not limited to acts of God, changes to law or regulations, embargoes, war, terrorist
acts, acts or omissions of third -party technology providers, riots, fires, earthquakes, floods, power blackouts, strikes,
weather conditions or acts of hackers, internet service providers or any other third party or acts or omissions of
Agency or any Authorized End User.
8. LIMITATION OF LIABILITY; NO FEE TERM; INDEMNITY
8.1 Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY, FLOCK AND ITS
SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL HARDWARE AND TECHNOLOGY SUPPLIERS),
OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE
RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR
TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT
LIABILITY, PRODUCT LIABILITY, OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE
OR FOR LOSS OR INACCURACY, INCOMPLETENESS OR CORRUPTION OF DATA OR FOOTAGE OR
COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF
BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL
DAMAGES; (C) FOR ANY MATTER BEYOND FLOCK'S ACTUAL KNOWLEDGE OR REASONABLE
CONTROL INCLUDING REPEAT CRIMINAL ACTIVITY OR INABILITY TO CAPTURE FOOTAGE OR
IDENTIFY AND/OR CORRELATE A LICENSE PLATE WITH THE FBI DATABASE; (D) FOR ANY PUBLIC
DISCLOSURE OF PROPRIETARY INFORMATION MADE IN GOOD FAITH; (E) FOR CRIME
PREVENTION; OR (F) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH
ALL OTHER CLAIMS, EXCEED THE FEES PAID AND/OR PAYABLE BY AGENCY TO FLOCK FOR THE
SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT OR
OMISSION THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT FLOCK HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT OF AN EMERGENCY,
AGENCY SHOULD CONTACT 911 AND SHOULD NOT RELY ON THE SERVICES.THIS LIMITATION OF
LIABILITY OF SECTION 8 ONLY APPLIES TO THE EXTENT ALLOWED BY THE GOVERNING LAW OF
THE STATE MENTIONED IN SECTION 10.5, OR IF NO STATE IS MENTIONED IN SECTION 10.5, BY THE
LAW OF THE STATE OF GEORGIA.
Packet Pg. 366
DocuSign Envelope ID: 3E54639A-8296-4C41-8E11-08EAOE82E5E4
8.2 Additional No -Fee Term Requirements. IN NO EVENT SHALL FLOCK'S AGGREGATE LIABILITY, IF
ANY, ARISING OUT OF OR IN ANY WAY RELATED TO THE COMPLIMENTARY NO -FEE TERM AS
DESCRIBED IN SECTION 6.5 EXCEED $100, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED
IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE. Parties
acknowledge and agree that the essential purpose of this Section 8.2 is to allocate the risks underthe No -Fee Term
described in Section 6.5 and limit potential liability given the aforementioned complimentary service, which would
have been substantially higher if Flock were to assume any further liability other than as set forth herein. Flock has
relied on these limitations in determining whether to provide the complimentary No -Fee Term. The limitations set
forth in this Section 8.2 shall not apply to claims or damages resulting from Flock's other obligations under this
Agreement.
8.3 Responsibility. Each Party to this Agreement shall assume the responsibility and liability for the acts and
omissions of its own employees, deputies, officers, or agents, in connection with the performance of their official
duties under this Agreement. Each Party to this Agreement shall be liable (if at all) only for the torts of its own
officers, agents, or employees that occur within the scope oftheir official duties. Agency will not pursue any claims
or actions against Flock's suppliers.
8.4 Indemnity. Agency hereby agrees to indemnify and hold harmless Flock against any damages, losses, liabilities,
settlements and expenses in connection with any claim or action that arises from an alleged violation of Section 3.2,
a breach of this Agreement, Agency's Installation Obligations, Agency's sharing of any data in connection with the
Flock system, Flock employees or agent or Non -Agency End Users, or otherwise from Agency's use ofthe Services,
Flock Hardware, Agency Hardware and any Embedded Software, including any claim that such actions violate any
applicable law or third party right. Although Flock has no obligation to monitor Agency's use of the Services, Flock
may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of Section 3.2
or this Agreement.
9. RECORD RETENTION
9.1 Data Preservation. The Agency agrees to store Agency Data in compliance with all applicable local, state and
federal laws, regulations, policies and ordinances and their associated record retention schedules. As part of
Agency's consideration for paid access and no -fee access to the Flock System to the extent that Flock is required by
local, state or federal law to preserve the Agency Data, Flock will notify Agency of the requirement and applicable
retention period, and Agency agrees to preserve and securely store this data on Flock's behalf so that should Flock
be legally compelled by judicial or government order, Flock may retrieve the data from Agency upon demand.
i[IA UI Z11111111 to a w:11►1 x0110
10.1 Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be
limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and
effect and enforceable.
Packet Pg. 367
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10.2 Assignment. This Agreement is not assignable, transferable or sublicensable by Agency except with Flock's
prior written consent. Flock may transfer and assign any of its rights and obligations, in whole or in part, underthis
Agreement without consent.
10.3 Entire Agreement. This Agreement, togetherwith the Order Form(s), the then -current Reinstall Policy
(https://www.flocksafety.con/reinstafl-fee-schedule), and Deployment Plan(s), are the complete and exclusive
statement of the mutual understanding ofthe parties and supersedes and cancels all previous written and oral
agreements, communications and other understandings relating to the subject matter of this Agreement, and that all
waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. None of
Agency's purchase orders, authorizations or similar documents will alter the terms of this Agreement, and any such
conflicting terms are expressly rejected.
10.4 Relationship. No agency, partnership, joint venture, or employment is created as a result of this Agreement
and Agency does not have any authority of any kind to bind Flock in any respect whatsoever.
10.5 Governing Law; Venue. This Agreement shall be governed by the laws of the State in which the Agency is
located. The parties hereto agree that venue would be proper in the chosen courts ofWashington State in which the
Agency is located. The parties agree that the United Nations Convention for the International Sale of Goods is
excluded in its entirety from this Agreement.
10.6 Publicity. Upon prior written cons ent from Agency, Flock has the right to reference and use Agency's name
and trademarks and disclose the nature of the Services provided hereunder in each case in business and development
and marketing efforts, including without limitation on Flock's website.
10.7 Export. Agency may not remove or export from the United States or allow the export or re-export of the Flock W
N
le
IP or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the
c
United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets E
Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Services, L
the Hardware, the Embedded Software and Documentation are "commercial items" and according to DFAR section Q
252.2277014(a)(1) and (5) are deemed to be "commercial computer software" and "commercial computer software a)
documentation." Consistent with DFAR section227.7202 and FAR section 12.212, any use, modification,
reproduction, release, performance, display, or disclosure of such commercial software or commercial software
c
documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be a
prohibited except to the extent expressly permitted by the terms of this Agreement. o
10.8 Heac6ngs. The headings are merely for organization and should not be construed as adding meaning to the Y
Agreement or interpreting the associated Sections. c
a_
10.09 Authority. Each of the below signers of this Agreement represent that they understand this Agreement and
m
have the authority to sign on behalf of and bind the organizations and individuals they are representing. E
z
10.10 Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given M
when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e- Q
mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt,
if sent by certified or registered mail, return receipt requested.
Packet Pg. 368
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a
Packet Pg. 369
DocuSign Envelope ID: 3E54639A-8296-4C41-8E11-08EAOE82E5E4
Hock safety
4.H.a
EXHB IT A
Statement of Work
Installation of Flock Camera on existing pole or Flock -supplied pole if required
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Flock Group Inc.
This proposalexpires in 30 days.
Order Form
Packet Pg. 370
DocuSign Envelope ID: 3E54639A-8296-4C41-8E11-08EAOE82E5E4
Hock safety
4.H.a
EIBIT B
Copy of Reinstall Fee Schedule
Professional Services Schedule:
• Camera relocation, existing pole non -AC powered 1 $350
• Camera relocation, Flock pole and/or AC powered 1 $750
• Camera replacement as aresult of vandalism theft, or damage 1 $500
• Pole replacement as a result of vandalism, theft, or damage 1 $500
• Trip charge 1 $350
Examples:
Angle adjustment (elective)
Install additional Flock signage
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Flock Group hic.
This proposalexpires in 30 days.
Order Form
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4.1
•
4^4�
KENT
WASH NGTON
DATE: February 4, 2025
PUBLIC WORKS DEPARTMENT
Chad Bieren, P.E.
220 Fourth Avenue South
Kent, WA 98032
253-856-5600
TO: Kent City Council - Committee of the Whole
SUBJECT: Kent Water Franchise Agreement in City of Auburn -
Authorize
MOTION: I move to authorize the Mayor to sign the Water Facilities
Franchise Statement of Acceptance with the City of Auburn, subject to final
terms and conditions acceptable to the Public Works Director and City
Attorney.
SUMMARY: As part of the agreement with the City of Auburn for the Bridges
neighborhood deannexation, Kent agreed to obtain a franchise for its water utility
infrastructure that is now within the City of Auburn corporate limits. The franchise
agreement includes the rights necessary to operate and maintain Kent's water
infrastructure within Auburn.
The franchise area will include: a portion of Kent's water service area that is within
Auburn as a result of the Lea Hill annexation, which is defined under King County
Franchise area 13083; existing water infrastructure in 124th Avenue SE and SE
288th Street; and the South 277th Street right of way west of Kent's city limit,
which would allow Kent to locate water infrastructure within that right of way in the
future, if necessary.
This franchise agreement runs for a period of 20 years with an automatic month -to -
month extension until a new franchise agreement is approved.
BUDGET IMPACT: None.
SUPPORTS STRATEGIC PLAN GOAL:
Evolving Infrastructure - Connecting people and places through strategic investments in physical
and technological infrastructure.
Sustainable Services - Providing quality services through responsible financial management,
economic growth, and partnerships.
ATTACHMENTS:
1. Franchise Agreement - Final - Auburn Ordinance 6962 (PDF)
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ORDINANCE NO. 6962
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF AUBURN, WASHINGTON, GRANTING TO
CITY OF KENT, A WASHINGTON MUNICIPAL
CORPORATION, A FRANCHISE FOR WATER
FACILITIES
WHEREAS, The City of Kent ("Franchisee") has applied for a non-exclusive
Franchise for the right of entry, use, and occupation of certain public ways within
the City of Auburn ("City"), expressly to install, construct, operate, maintain, repair,
relocate, and remove its facilities in, on, over, under along, and/or across those
public ways; and
WHEREAS, following proper notice, the City Council held a public hearing
on Franchisee's request for a Franchise; and
WHEREAS, based on the information presented at such public hearing, and
from facts and circumstances developed or discovered through independent study
and investigation, the City Council now deems it appropriate and in the best
interest of the City to grant the Franchise to Franchisee.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN
WASHINGTON, DO ORDAIN as follows:
Section 1. Definitions
For the purpose of this Franchise and the interpretation and enforcement thereof,
definitions of words and phrases shall be in accordance with the definitions set
forth in this Franchise and in Auburn City Code 20.02.020. If there is a conflict
between any of the definitions set forth in this Franchise and the definitions set
forth in Auburn City Code 20.02.020, the definitions in this Franchise shall govern
to the extent of such conflict.
A. "ACC" means the Auburn City Code.
B. "Fire Flow" means the measure of sustained flow of available water
required for firefighting of a specific building or structure within a specific area at
20 pounds per square inch residual pressure and shall be corrected to the lowest
gallonage available based on peak -period demands and seasonal demands.
C. "Fire Hydrant" means a public fire hydrant situated and maintained
to provide water for firefighting purposes. Public fire hydrants are without restriction
Ordinance No. 6962
November 19, 2024
Franchise Agreement No. FRN24-0003
Page 1 of 23
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as to use for that purpose. The location of a fire hydrant is such that it is accessible
for immediate use of the fire authority at all times.
D. "Force Majeure Event" means and shall include without limitation,
war, civil disturbance; flood, earthquake or other Act of God; storm or other
condition which necessitates the mobilization of the personnel of a Party or its
contractors to restore utility service; laws, regulations, rules or orders of any
governmental agency; a public health emergency as declared by the State of
Washington or local County governing the Franchise Area; sabotage; strikes or
similar labor disputes involving personnel of a party, its contractors or a third party;
or any failure or delay in the performance by the other party, or third party who is
not an employee, agent or contractor of the party claiming a Force Majeure Event,
in connection with this Franchise.
E. "Franchise" means this agreement approved by Ordinance No. 6962
of the City which authorizes Franchisee Facilities to provide Franchisee Services
in the Franchise Area.
F. "Franchise Area" means the public ways specified in Exhibit "A".
G. "Franchisee Facilities" means water supply transmission and
distribution mains, interties, pipes, Fire Hydrants, valves, water services and
meters, water system communication and monitoring equipment, and all other
appurtenances necessary or convenient for the purpose of providing water service,
including any part thereof used or usable for the delivery of water for Fire Flow and
fire suppression purposes, that are constructed, operated, owned, and maintained
within the public ways that are located in the Franchise Area.
H. "Franchisee Services" means providing potable water service for
human consumption or other domestic use, including residential, commercial, and
wholesale use, and Fire Flow and fire suppression purposes. A water service
extends from the public water main to and including the water meter and is owned
and maintained by the Franchisee.
I. "Public Improvement" means any capital improvement,
maintenance, or repair that is undertaken by or on behalf of the City and is funded
by the City (either directly or indirectly with its own funds or with other public monies
obtained by the City), including any capital improvement within the City's adopted
Transportation Improvement Plan or Capital Facilities Plan.
Section 2. Grant of Right to Use Franchise Area
A. Subject to the terms and conditions stated in this Franchise, the City
grants to the Franchisee general permission to enter, use, and occupy the public
Ordinance No. 6962
November 19, 2024
Franchise Agreement No. FRN24-0003
Page 2 of 23
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ways within the Franchise Area, located within the incorporated area of the City.
Franchisee may locate the Franchisee's Facilities within the Franchise Area
subject to all applicable laws, regulations, and permit conditions.
B. The Franchisee is authorized to install, remove, construct, operate,
maintain, relocate, upgrade, replace, restore, and repair Franchisee's Facilities to
provide Franchisee Services in the Franchise Area.
C. This Franchise does not authorize the use of the Franchise Area for
any facilities or services other than Franchisee Facilities and Franchisee Services,
and it extends no rights or privilege relative to any facilities or services of any type,
including Franchisee Facilities and Franchisee Services, on public or private
property elsewhere within the City.
D. This Franchise is non-exclusive and does not prohibit the City from
entering into other agreements, including other franchise agreements, impacting
the Franchise Area, for any purpose that does not interfere with Franchisee's rights
under this Franchise.
E. Except as explicitly set forth in this Franchise, this Franchise does
not waive any rights the City has or may acquire with respect to the Franchise Area
or any other City roads, public ways, or property. This Franchise will be subject to
the power of eminent domain, and in any proceeding under eminent domain, the
Franchisee acknowledges its use of the Franchise Area shall have no value.
F. The City reserves the right to change, regrade, relocate, abandon, or
vacate any public way within the Franchise Area. If, at any time during the term of
this Franchise, the City vacates any portion of the Franchise Area containing
Franchisee Facilities, the City may reserve an easement for public utilities within
that vacated portion, pursuant to Chapter 35.79.030 RCW, within which the
Franchisee may continue to operate any existing Franchisee Facilities under the
terms of this Franchise for the remaining period set forth under Section 4.
G. The Franchisee agrees that its use of Franchise Area shall at all
times be subordinated to and subject to the City and the public's need for municipal
infrastructure, travel, and access to the Franchise Area, except as may be
otherwise required by law.
Section 3. Notice
A. Written notices to the parties shall be sent by a nationally recognized
overnight courier or by certified mail to the following addresses unless a different
address is designated in writing and delivered to the other party. Any such written
notice shall become effective upon receipt by certified mail, confirmed delivery by
Ordinance No. 6962
November 19, 2024
Franchise Agreement No. FRN24-0003
Page 3 of 23
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overnight courier, or the date stamped received by the City. Any communication
made by telephone, e-mail, or similar method will not constitute notice pursuant to
this Franchise, except where expressly permitted in this Franchise.
City: Right -of -Way Specialist
Public Works Department - Transportation
City of Auburn
25 West Main Street
Auburn, WA 98001-4998
Telephone: (253) 931-3010
Rowusepermit@auburnwa.gov
with a copy to: City Clerk
City of Auburn
25 West Main Street
Auburn, WA 98001-4998
Franchisee: City of Kent
Attn: City of Kent Water Manager- Public Works Operations
220 Fourth Avenue South
Kent, WA 98032
Telephone: 253-856-5600
Email Address: PWOps@KentWA.gov
with a copy to: City of Kent
Attn: City Clerk
220 Fourth Avenue South
Kent, WA 98032
Telephone: 253-856-5725
Email Address: CityClerk@KentWA.gov
B. Any changes to the above -stated Franchisee information shall be
sent to the City's Right -of -Way Specialist, Public Works Department —
Transportation Division, with copies to the City Clerk, referencing the title of this
Franchise.
C. The above -stated Franchisee voice telephone numbers shall be
staffed at least during normal business hours, Pacific time zone. The City may
contact Franchisee at the following number for emergency or other needs outside
of normal business hours of the Franchisee: (253-856-5600).
Ordinance No. 6962
November 19, 2024
Franchise Agreement No. FRN24-0003
Page 4 of 23
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Section 4. Term of Franchise
A. This Franchise shall run for a period of twenty (20) years, from the
date of Franchise Acceptance as described in Section 5 of this Franchise.
B. Automatic Extension. If the Franchisee fails to formally apply for a
new franchise agreement prior to the expiration of this Franchise's term or any
extension thereof, this Franchise automatically continues month to month until a
new franchise agreement is applied for and approved under the then current
process or until either party gives written notice at least one hundred and eighty
(180) calendar days in advance of intent to cancel this Franchise. Franchisee shall
be responsible for paying applicable fees for month -to -month Franchise status per
the City of Auburn fee schedule in effect at the time the Agreement goes into
month -to -month status.
Section 5. Acceptance of Franchise
A. This Franchise will not become effective until Franchisee files with
the City Clerk (1) the Statement of Acceptance (Exhibit "B"), (2) all verifications of
insurance coverage specified under Section 15, and (3) payment of any
outstanding application fees required in the City Fee Schedule. These three items
will collectively be the "Franchise Acceptance". The date that such Franchise
Acceptance is filed with the City Clerk will be the effective date of this Franchise.
B. If the Franchisee fails to file the Franchise Acceptance with the City
Clerk within thirty (30) calendar days after the effective date of the ordinance
approving the Franchise as described in Section 26 of this Franchise, the City's
grant of the Franchise will be null and void.
Section 6. Construction and Maintenance
A. The Franchisee shall apply for, obtain, and comply with the terms of
all permits required under applicable law for any work done within the City.
Franchisee will comply with all applicable City, State, and Federal codes, rules,
regulations, and orders in undertaking such work.
B. Franchisee agrees to coordinate its activities with the City and all
other utilities located within the public way within which Franchisee is undertaking
its activity.
C. The City expressly reserves the right to prescribe how and where
Franchisee's Facilities will be installed within the public way and may require the
removal, relocation and/or replacement thereof in the public interest and safety at
the expense of the Franchisee.
Ordinance No. 6962
November 19, 2024
Franchise Agreement No. FRN24-0003
Page 5 of 23
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D. Franchisee's Facilities shall be constructed, installed, maintained,
and repaired within the Franchise Area so as to provide safety of persons and
property, and not interfere with the free passage of traffic, all in accordance with
the laws of the State of Washington, and the ordinances, resolutions, rules and
regulations of the City.
E. If work performed under this Franchise by the Franchisee makes it
necessary to turn off or diminish water pressure or potential Fire Flow to any Fire
Hydrant, the Franchisee shall notify Valley Regional Fire Authority (VRFA) by
telephone at 253-288-5870, email at fire.marshal@vrfa.org, or written notice, that
water pressure or Fire Flow conditions may be affected. Except in the case of an
emergency, the notice shall be provided at least forty-eight (48) hours prior to the
water pressure or potential Fire Flow being suspended or diminished. If more than
one Fire Hydrant will be affected, the Franchisee shall provide a map of the
affected area to VRFA. Out -of -service Fire Hydrants must be identified as not
operational by covering with a properly secured burlap or plastic bag. Fire
Hydrants should be returned to full service as soon as reasonably possible or no
longer than two (2) calendar days from the date service was suspended or
diminished. The Franchisee shall notify VRFA when the Fire Hydrant(s) is/are
returned to full service.
F. Before beginning any work within the public way, the Franchisee will
comply with the One Number Locator provisions of Chapter 19.122 RCW to identify
existing utility infrastructure.
G. Tree Trimming. Upon prior written approval of the City the
Franchisee shall have the authority to trim trees upon and overhanging streets,
public ways and places in the Franchise Area so as to prevent the branches of
such trees from coming in physical contact with the Franchisee's Facilities.
Franchisee shall be responsible for debris removal from such activities. If such
debris is not removed within twenty-four (24) hours, the City may, at its sole
discretion, remove such debris and charge the Franchisee for the cost thereof.
This Section does not, in any instance, grant automatic authority to clear
vegetation for purposes of providing a clear path for radio signals. Any such
general vegetation clearing will require other permits as necessary from the City.
H. Franchisee shall notify the City by email or written notice, a minimum
of fifteen (15) calendar days in advance of discharge of Franchisee water supply
from a reservoir into the City's storm water system in the Franchise Area. The City
will review to ensure the ability of the City storm system to handle the additional
water. The City may deny any request based on the needs of the City but will work
with the Franchisee to coordinate a mutually agreed upon time to discharge water
to the City storm system. Any approval by the City for the Franchisee to discharge
water into the City storm system must be in writing. Any Franchisee water
Ordinance No. 6962
November 19, 2024
Franchise Agreement No. FRN24-0003
Page 6 of 23
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discharged to the City's storm water system must comply with all applicable federal
and state water quality standards and the City's NPDES permit relating to the City's
storm water system. The Franchisee will employ appropriate BMPs to ensure
City's storm water system capacity is not exceeded or damaged.
I. Flushing of water system and other Franchisee activities not
identified in paragraph H above shall not require advance notification. Any
Franchisee water discharged to the City's storm water system must comply with
all applicable federal and state water quality standards and the City's NPDES
permit relating to the City's storm water system. The Franchisee will employ
appropriate BMPs to ensure City's storm water system capacity is not exceeded
or damaged.
Section 7. Repair and Restorations
A. If the City Engineer determines that Franchisee's Facilities or
Franchisee's construction, maintenance, repair, relocation, or replacement of
facilities within the Franchise Area is the cause of damage, degradation, failure, or
substandard condition of a Street, during the term of this Franchise, the City will
notify Franchisee by email or written notice and Franchisee will repair or replace
the subject Street in accordance with City Engineering Design Standards and
subject to applicable permits, within ninety (90) calendar days of the City's
notification unless granted additional time by the City Engineer. If the City
determines the subject Street condition poses an immediate threat to health,
safety, vital traffic operations, property, or critical areas, Section 8 shall apply.
B. For purposes of this Section, "street" shall mean all City owned
improvements within a public way, including, but not limited to, the following:
pavement, sidewalks, curbing, above and below -ground utility facilities, traffic
control devices, landscape areas, and vegetation in unopened rights -of -way.
Section 8. Emergency Repair Work
A. In the event of an emergency, the Franchisee may commence repair
and emergency response work as required under the circumstances. The
Franchisee will notify the City telephonically during normal business hours (at 253-
931-3010) and during non -business hours (at 253-876-1985) as promptly as
possible, before such repair or emergency work commences, and in writing as
soon thereafter as possible. Such notification shall include the Franchisee's
emergency contact phone number for corresponding response activity.
B. The City may commence emergency response work, at any time,
without prior written notice to the Franchisee, but will notify the Franchisee, by
email or in writing, as promptly as possible under the circumstances. Franchisee
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will reimburse the City for the City's actual cost of performing emergency response
work.
Section 9. Damages to City and Third -Party Property
Franchisee agrees that if any of its actions, or the actions of any person,
agent, or contractor acting on behalf of the Franchisee under this Franchise
impairs or damages any City property, survey monument, or property owned by a
third -party, Franchisee will restore, at its own cost and expense, the property to a
safe condition. Upon returning the property to a safe condition, the property shall
then be returned to the condition it was in immediately prior to being damaged (if
the safe condition of the property is not the same as that which existed prior to
damage). All repair work shall be performed and completed to the satisfaction of
the City Engineer.
Section 10. Location Preference
A. Any structure, equipment, appurtenance, or tangible property of a
utility or other franchisee, other than the Franchisee's, which was installed,
constructed, completed or in place prior in time to Franchisee's application for a
permit to construct or repair Franchisee's Facilities under this Franchise shall have
preference as to positioning and location with respect to the Franchisee's Facilities.
However, to the extent that the Franchisee's Facilities are completed and installed
before another utility or other franchisee's submittal of a permit for new or
additional structures, equipment, appurtenances, or tangible property, then the
Franchisee's Facilities will have priority. These rules governing preference shall
continue when relocating or changing the grade of any City road or public way. A
relocating utility or franchisee will not cause the relocation of another utility or
franchisee that otherwise would not require relocation. This Section will not apply
to any City facilities or utilities that may in the future require the relocation of
Franchisee's Facilities. Such relocations will be governed by Section 11.
B. When constructing new Franchisee Facilities, or replacing or
reconstructing Franchisee Facilities, Franchisee shall maintain minimum
underground separation requirements from all City water, sanitary sewer, and
storm water facilities in accordance with the City Engineering Design and
Construction Standards; provided, that for development of new areas, the City, in
consultation with Franchisee and other utility purveyors or authorized users of the
Franchise Area, will develop and follow the City's determination of guidelines and
procedures for determining specific utility locations, subject additionally to this
agreement.
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November 19, 2024
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Section 11. Relocation of Franchisee Facilities
A. Whenever the City causes a Public Improvement to be constructed
within the Franchise Area, and such Public Improvement requires the relocation of
Franchisee Facilities within the Franchise Area (for purposes other than those
described in Section 11.13 below):
1. The City shall provide Franchisee with written notice
requesting such relocation, along with review plans and/or other detailed
document(s) for the Public Improvement that are sufficiently complete as
determined by the City Engineer to allow for Franchisee's initial evaluation
and coordination of the relocation. The City shall provide the Franchisee
with the City's anticipated construction schedule and the date, either before
or during the construction of the Public Improvement, the City requires the
Franchisee to complete the relocation. If the Franchisee desires
clarification, alternatives to relocation, or a relocation schedule that varies
from that provided by the City, the Franchisee will provide written request
to the City within fourteen (14) calendar days of receiving the relocation
notice from the City and then Section 11.A.2 shall apply to the relocation,
otherwise, the Franchisee agrees to conduct the relocation as required by
the City and Section 11.A.2 shall not apply to the relocation.
2. Subject to the notice requirement of Section 11.A.1, the City
and Franchisee shall discuss relocation requirements and schedule, and
jointly identify and define the project requirements, schedule, and timeframe
of relocation that the Parties agree shall govern the relocation. The Parties
will document the mutual agreement of these terms in writing. Except as
approved otherwise in writing by the City, in no case shall the Franchisee's
relocation be completed more than 180 calendar days after initial
notification by the City.
3. Franchisee shall relocate such Franchisee Facilities within the
Franchise Area, at no charge to the City and in accordance with the
relocation schedule required by the City or otherwise mutually agreed upon
by the Parties per Section 11.A.2.
B. Whenever (i) any public or private development within the Franchise
Area, other than a Public Improvement, requires the relocation of Franchisee
Facilities within the Franchise Area to accommodate such development: or (ii) the
City requires the relocation of Franchisee Facilities within the Franchise Area for
the benefit of any person or entity other than the City (including, without limitation,
any conditions or requirement imposed by the City on such person or entity
pursuant to any contract or in conjunction with approvals or permits for zoning,
land use, construction or development), then in such event, Franchisee shall have
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the right as a condition of such relocation, to (i) require such developer, person or
entity to cause such relocation to occur at their own expense, subject to
Franchisee's review and approval of design plans prepared by such developer,
person or entity; or (ii) to require such developer, person or entity to make payment
to Franchisee, at a time and upon terms acceptable to Franchisee, for any and all
costs and expenses incurred by Franchisee in connection with such relocation of
Franchisee Facilities.
C. Subject to the terms of this Section 11 and consistent with Section
14 and to the maximum extent provided by applicable law, Franchisee shall
reimburse the City for any costs, expenses, and/or damages incurred as a result
of: 1) The Franchisee not providing the City accurate or sufficient location or other
information regarding Franchise Facilities during design or construction of the
Public Improvement, or 2) Franchisee's delay in meeting the mutually -established
schedule for the relocation work required to accommodate a Public Improvement
to the extent the delay is directly caused by Franchisee's breach of its obligations
under this Section 11 with respect to the relocation of Franchisee Facilities in
accordance with the mutually established schedule for the relocation work.
D. Nothing in this Section 11 shall require Franchisee to bear any cost
or expense in connection with the location or relocation of any Franchisee Facilities
then existing pursuant to easement or such other rights not derived from this
Franchise.
E. In the event that a conflict with Franchise Facilities is discovered
during construction of a capital improvement, within seven (7) calendar days of this
determination, the City and Franchisee shall discuss relocation requirements and
schedule, and jointly identify and define the relocation requirements, schedule, and
timeframe of relocation that the Parties agree shall govern the relocation. The
Parties may agree to include relocation as part of the City's capital improvement
with Franchisee reimbursing the costs of design, City inspection time, and
relocation of Franchise Facilities. The Parties will document the mutual agreement
of these terms in writing. Additionally, any and all damages or costs associated
with the conflict shall be subject to Section 11.C.
Section 12. Abandonment and or Removal of Franchisee Facilities
A. Within one hundred and eighty (180) calendar days of Franchisee's
permanent cessation of use of any portion of the Franchisee Facilities, the
Franchisee will, at the City's discretion, either abandon in place or remove the
affected facilities.
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B. Franchisee may ask the City in writing to abandon, in whole or in
part, all or any part of the Franchisee Facilities. Any plan for abandonment of
Franchisee Facilities must be approved in writing by the City.
C. The parties expressly agree that this Section will survive the
expiration, revocation or termination of this Franchise.
Section 13. Franchisee Information
A. Franchisee agrees to supply, at no cost to the City, any information
requested by the City that the City determines is necessary to coordinate municipal
functions with Franchisee's activities and fulfill any municipal obligations under
state law. Said information will include, at a minimum, as -built drawings of
Franchisee's Facilities, installation inventory, and maps and plans showing the
location of existing or planned facilities within the City. Said information may be
requested either in hard copy or electronic format, compatible with the City's data
base system, including the City's Geographic Information System (GIS) data base.
Franchisee will keep the City informed of its long-range plans for coordination with
the City's long-range plans.
B. The parties understand that Chapter 42.56 RCW and other
applicable law may require public disclosure of information given to the City. In the
event the City receives a request under Chapter 42.56 RCW involving
Franchisee's information described in Section 13.A., the City shall provide email
notice to Franchisee at least ten (10) days prior to release of any records that either
1) Could be excluded from public records release to protect public safety and
security, including pump station and reservoir as -built records, system operating
plans, vulnerability assessments, and other records the City determines the
Franchisee may seek to exclude from public records release for this reason; or 2)
Records the Franchisee has labelled with the statement "DO NOT RELEASE
BEFORE NOTIFYING THE CITY OF KENT" or similar statement. The warning
statement shall also reference this agreement by number, be in red lettering, in 16
font or greater, and on the front of the electronic or paper document.
Section 14. Indemnification and Hold Harmless
A. Franchisee shall defend, indemnify, and hold harmless the City, its
officers, officials, employees and volunteers from and against any and all claims,
suits, actions, or liabilities for injury or death of any person, or for loss or damage
to property, which arises out of Franchisee's acts, errors or omissions, or from the
conduct of Franchisee's business, or from any activity, work or thing done,
permitted, or suffered by Franchisee arising from or in connection with this
Franchise, except only such injury or damage as shall have been occasioned by
the sole negligence of the City.
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However, should a court of competent jurisdiction determine that this Franchise is
subject to RCW 4.24.115, then, in the event of liability for damages arising out of
bodily injury to persons or damages to property caused by or resulting from the
concurrent negligence of the Franchisee and the City, its officers, officials,
employees, and volunteers, the Franchisee's liability hereunder shall be only to the
extent of the Franchisee's negligence. It is further specifically and expressly
understood that the indemnification provided herein constitutes the Franchisee's
waiver of immunity under Industrial Insurance, Title 51 RCW, solely for the
purposes of this indemnification. This waiver has been mutually negotiated by the
parties. The provisions of this Section shall survive the expiration or termination
of this Franchise.
B. The Franchisee will hold the City harmless from any liability arising
out of or in connection with any damage or loss to the Franchisee's Facilities
caused by maintenance and/or construction work performed by, or on behalf of,
the City within the Franchise Area or any other City road, public way, or other
property, except to the extent any such damage or loss is directly caused by the
negligence of the City, or its agent performing such work.
C. The Franchisee acknowledges that neither the City nor any other
public agency with responsibility for firefighting, emergency rescue, public safety
or similar duties within the City has the capability to provide trench, close trench or
confined space rescue. The Franchisee, and its agents, assigns, successors, or
contractors, will make such arrangements as Franchisee deems fit for the provision
of such services. The Franchisee will hold the City harmless from any liability
arising out of or in connection with any damage or loss to the Franchisee for the
City's failure or inability to provide such services, and, pursuant to the terms of
Section 14.A., the Franchisee will indemnify the City against any and all third -party
costs, claims, injuries, damages, losses, suits, or liabilities based on the City's
failure or inability to provide such services.
D. The Franchisee shall be solely and completely responsible to
perform all work related to this Franchise in compliance with all applicable law.
The Franchisee's attention is directed to the requirements of the Washington
Industrial Safety and Health Act, Chapter 49.17 RCW. The Franchisee shall be
solely and completely responsible for safety and safety conditions on its job sites
and for its work within the Franchise Area, including the safety of all persons and
property during performance of any works therein. The services of the City or
City's consultant personnel in conducting construction review of the Franchisee's
work relating to the Franchise is not intended to include review of the adequacy of
the Franchisee's work methods, equipment, scaffolding, or trenching, or safety
measures in, on or near such job site within the public way. The Franchisee shall
provide safe access for the City and its inspectors to adequately inspect the work
and its conformance with applicable law and the Franchise.
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E. Indemnification for Relocation. Franchisee will defend, indemnify,
and hold the City harmless for any damages, claims, additional costs or reasonable
expenses and attorneys' fees, including contractor construction delay damages,
assessed against or payable by the City and arising out of or resulting from
Franchisee's negligence or willful misconduct contributing to Franchisee's failure
to remove, adjust, or relocate any of its facilities in the public way in accordance
with any relocation required by the City, provided that Franchisee will not be liable
under this Section if Franchisee's failure to remove, adjust, or relocate any of its
facilities is the result of a Force Majeure Event.
Section 15. Insurance
A. The Franchisee shall procure and maintain for the duration of this
Franchise and as long as Franchisee has Facilities in the public way, insurance
against claims for injuries to persons or damage to property which may arise from
or in connection with this Franchise and use of the public way.
B. No Limitation. The Franchisee's maintenance of insurance as
required by this Franchise shall not be construed to limit the liability of the
Franchisee to the coverage provided by such insurance, or otherwise limit the
City's recourse to any remedy available at law or in equity.
C. Minimum Scope of Insurance. The Franchisee shall obtain
insurance of the types and coverage described below:
1. Commercial General Liability insurance shall be at least as
broad as Insurance Services Office (ISO) occurrence form CG 00 01 and
shall cover liability arising from premises, operations, stop gap liability,
independent contractors, products -completed operations, personal injury
and advertising injury, pollution liability, and liability assumed under an
insured contract. There shall be no exclusion for liability arising from
explosion, collapse, or underground property damage. The City shall be
named as an additional insured under the Franchisee's Commercial
General Liability insurance policy with respect this Franchise.
2. Automobile Liability insurance covering all owned, non -
owned, hired, and leased vehicles. Coverage shall be at least as broad as
ISO form CA 00 01.
3. Contractor's Pollution Liability insurance shall be in effect
throughout the entire Franchise covering losses caused by pollution
conditions that arise from the operations of the Franchisee. Contractor's
Pollution Liability shall cover bodily injury, property damage, cleanup costs,
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and defense, including costs and expenses incurred in the investigation,
defense, or settlement of claims.
4. Workers' Compensation coverage as required by the
Industrial Insurance laws of the State of Washington.
5. Excess or Umbrella Liability insurance shall be excess over
and at least as broad in coverage as the Franchisee's Commercial General
Liability and Automobile Liability insurance. The City shall be named as an
additional insured on the Franchisee's Excess or Umbrella Liability
insurance policy.
D. Minimum Amounts of Insurance. The Franchisee shall maintain
insurance that meets or exceeds the following limits:
1. Commercial General Liability insurance shall be written with
limits no less than $5,000,000 each occurrence, $5,000,000 general
aggregate.
2. Automobile Liability insurance with a minimum combined
single limit for bodily injury and property damage of $5,000,000 per
accident.
3. Contractors Pollution Liability insurance shall be written in an
amount of at least $2,000,000 per loss, with an annual aggregate of at least
$2,000,000.
4. Workers' Compensation coverage as required by the
Industrial Insurance laws of the State of Washington and employer's liability
insurance with limits of not less than $1,000,000.
5. Excess or Umbrella Liability insurance shall be written with
limits of not less than $5,000,000 per occurrence and annual aggregate.
The Excess or Umbrella Liability requirement and limits may be satisfied
instead through Franchisee's Commercial General Liability and Automobile
Liability insurance, or any combination thereof that achieves the overall
required limits.
E. Other Insurance Provisions. Franchisee's Commercial General
Liability, Automobile Liability, Excess or Umbrella Liability, Contractor's Pollution
Liability insurance policy or policies are to contain, or be endorsed to contain, that
they shall be primary insurance as respect to the City. Any insurance, self-
insurance, or self -insured pool coverage maintained by the City shall be excess of
the Franchisee's insurance and shall not contribute with it.
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F. Acceptability of Insurers. Insurance is to be placed with insurers with
a current A.M. Best rating of not less than A: VII.
G. Contractors and Subcontractors. The Franchisee shall cause each
and every contractor and subcontractor to provide insurance coverage that
complies with all applicable requirements of the Franchisee -provided insurance as
set forth herein, except that the Franchisee shall have sole responsibility for
determining the limits of coverage required to be obtained by contractors and
subcontractors. The Franchisee shall ensure that the City is an additional insured
on each and every contractor's and subcontractor's Commercial General liability
insurance policy using an endorsement as least as broad as ISO CG 20 26.
H. Verification of Coverage. The Franchisee shall furnish the City with
original certificates and a copy of the amendatory endorsements, including but not
necessarily limited to the additional insured endorsement, evidencing the
insurance requirements of this Franchise. Upon request by the City, the
Franchisee shall furnish certified copies of all required insurance policies, including
endorsements, required in this Franchise and evidence of all subcontractors'
coverage.
I. Notice of Cancellation. Franchisee shall provide the City with email
or written notice of any policy cancellation within five (5) calendar days of their
receipt of such notice.
J. Failure to Maintain Insurance. Failure on the part of the Franchisee
to maintain the insurance as required shall constitute a material breach of this
Franchise, upon which the City may, after giving five (5) calendar days' written
notice to the Franchisee to correct the breach, terminate the Franchise.
K. City Full Availability of Franchisee Limits. If the Franchisee maintains
higher insurance limits than the minimums shown above, the City shall be insured
for the full available limits of Commercial General and Excess or Umbrella liability
maintained by the Franchisee, irrespective of whether such limits maintained by
the Franchisee are greater than those required by this Franchise or whether any
certificate of insurance furnished to the City evidences limits of liability lower than
those maintained by the Franchisee.
L. Franchisee — Self -Insurance. Franchisee will have the right to self -
insure any or all of the above -required insurance. Any such self-insurance is
subject to approval by the City. If the Franchisee is self -insured or becomes self -
insured during the term of the Franchise, Franchisee or its affiliated parent entity
shall comply with the following: (1) Franchisee shall submit a letter to the City
stating which of the above required insurance provisions in this Section 15
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Franchisee proposes to self -insure; (2) provide the City, upon request, a copy of
Franchisee's or its parent company's most recent audited financial statements, if
such financial statements are not otherwise publicly available; (3) Franchisee or
its parent company is responsible for all payments within the self -insured retention;
and (4) Franchisee assumes all defense and indemnity obligations as outlined in
Section 14.
Section 16. Financial Security
Pursuant to the authority in ACC 20.02.280.A, the City's Public Works
Director has determined that the Franchisee shall not be required to provide the
City with financial security for this Franchise.
Section 17. Successors and Assignees
A. All the provisions, conditions, regulations, and requirements
contained in this Franchise are binding upon the successors, assigns of, and
independent contractors of the Franchisee, and all rights and privileges, as well as
all obligations and liabilities of the Franchisee will inure to its successors,
assignees and contractors equally as if they were specifically mentioned herein
wherever the Franchisee is mentioned.
B. This Franchise will not be leased, assigned or otherwise alienated
without the express prior consent of the City by ordinance.
C. Franchisee and any proposed assignee or transferee will provide
and certify the following to the City not less than ninety (90) calendar days prior to
the proposed date of transfer: (1) Complete information setting forth the nature,
term and conditions of the proposed assignment or transfer; (2) All information
required by the City of an applicant for a Franchise with respect to the proposed
assignee or transferee; and, (3) An application fee in the amount established by
the City's fee schedule, plus any other costs actually and reasonably incurred by
the City in processing, and investigating the proposed assignment or transfer.
D. Before the City's consideration of a request by Franchisee to consent
to a Franchise assignment or transfer, the proposed Assignee or Transferee will
file with the City a written promise to unconditionally accept all terms of the
Franchise, effective upon such transfer or assignment of the Franchise. The City
is under no obligation to undertake any investigation of the transferor's state of
compliance and failure of the City to insist on full compliance before transfer does
not waive any right to insist on full compliance thereafter.
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November 19, 2024
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Page 16 of 23
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Section 18. Dispute Resolution
A. In the event of a dispute between the City and the Franchisee arising
by reason of this Franchise, the dispute will first be referred to the operational
officers or representatives designated by City and Franchisee to have oversight
over the administration of this Franchise. The officers or representatives will meet
within thirty (30) calendar days of either party's request for a meeting, whichever
request is first, and the parties will make a good faith effort to achieve a resolution
of the dispute.
B. If the parties fail to achieve a resolution of the dispute in this manner,
either party may then pursue any available judicial remedies. This Franchise will
be governed by and construed in accordance with the laws of the State of
Washington. If any suit, arbitration, or other proceeding is instituted to enforce any
term of this Franchise, the parties specifically understand and agree that venue
will be exclusively in King County, Washington. The prevailing party in any such
action will be entitled to its attorneys' fees and costs.
Section 19. Enforcement and Remedies
A. If the Franchisee willfully violates or fails to comply with any of the
provisions of this Franchise through willful or unreasonable negligence or fails to
comply with any notice given to Franchisee under the provisions of this Franchise,
the City may, at its discretion, provide Franchisee with written notice to cure the
breach within thirty (30) calendar days of notification. If the City determines the
breach cannot be cured within thirty (30) calendar days, the City may specify a
longer cure period, and condition the extension of time on Franchisee's submittal
of a plan to cure the breach within the specified period, commencement of work
within the original thirty (30) calendar day cure period, and diligent prosecution of
the work to completion. If the breach is not cured within the specified time, or the
Franchisee does not comply with the specified conditions, the City may, at its
discretion, either (1) revoke the Franchise with no further notification, or (2) impose
liquidated damages of Two Hundred Fifty Dollars ($250.00) per day for every day
after the expiration of the cure period that the breach is not cured. The parties
agree that the actual damages to the City from Franchisee failing to cure are not
easily calculated and agree that the liquidated damages amount are a reasonable
forecast of just compensation.
B. If the City determines that Franchisee is acting beyond the scope of
permission granted in this Franchise for Franchisee Facilities and Franchisee
Services, the City reserves the right to cancel this Franchise and require the
Franchisee to apply for, obtain, and comply with all applicable City permits,
franchises, or other City permissions for such actions, and if the Franchisee's
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actions are not allowed under applicable federal and state or City laws, to compel
Franchisee to cease those actions.
C. If Franchisee fails to substantially comply with any one or more of the
provisions of this Franchise, Franchisee agrees to be responsible for any damages
the City suffers as a result of Franchisee's failure (including, but not limited to: City
staff time, material and equipment costs; compensation or indemnification of third
parties; and the cost of removal or abandonment of facilities). Franchisee also
specifically agrees that its failure to comply with the terms of this Section 19 will
constitute damage to the City in the monetary amount set forth in subsection A of
this Section.
Section 20. Compliance with Laws and Regulations
A. This Franchise is subject to, and the Franchisee will comply with all
applicable federal, state, and City laws, regulations, and policies (including all
applicable elements of the City's comprehensive plan), in conformance with federal
laws and regulations, affecting performance under this Franchise. The Franchisee
will be subject to the police power of the City to adopt and enforce general
ordinances necessary to protect the safety and welfare of the general public in
relation to the rights granted in the Franchise Area.
B. The City reserves the right at any time to amend this Franchise to
conform to any federal or state statute or regulation relating to the public health,
safety, and welfare, or relating to roadway regulation, or a City Ordinance enacted
pursuant to such federal or state statute or regulation enacted, amended, or
adopted after the effective date of this Franchise if it provides Franchisee with thirty
(30) calendar days written notice of its action setting forth the full text of the
amendment and identifying the statute, regulation, or ordinance requiring the
amendment. The amendment will become automatically effective on expiration of
the notice period unless, before expiration of that period, the Franchisee makes a
written call for negotiations over the terms of the amendment. If the parties do not
reach agreement as to the terms of the amendment within thirty (30) calendar days
of the call for negotiations, the City may enact the proposed amendment, by
incorporating the Franchisee's concerns to the maximum extent the City deems
possible.
C. The City may terminate this Franchise upon thirty (30) calendar days
written notice to the Franchisee if the Franchisee fails to comply with such
amendment or modification.
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Section 21. License, Tax and Other Charges
A. The City reserves the right to impose, to the extent authorized by
law, a utility tax on the Franchisee and/or to charge the Franchisee a reasonable
fee for services provided or rights granted under this Franchise.
B. The Franchisee agrees that it shall be subject to all authority now or
later possessed by the City or any other governing body having competent
jurisdiction to fix just, reasonable, and compensatory rates for services under this
Franchise.
C. This Franchise will not exempt the Franchisee from any future
license, tax, or charge which the City may adopt if authority is granted to it under
state or federal law for revenue or as reimbursement for use and occupancy of the
Franchise Area.
Section 22. Consequential Damages Limitation
Notwithstanding any other provision of this Franchise, in no event will either
party be liable for any special, incidental, indirect, punitive, reliance, consequential
or similar damages.
Section 23. Severability
If any portion of this Franchise is deemed invalid, the remainder portions
will remain in effect, unless doing so will deny a party valuable consideration.
Section 24. Titles
The Section titles are for reference only and should not be used for the
purpose of interpreting this Franchise.
Section 25. Implementation
The Mayor is authorized to implement those administrative procedures
necessary to carry out the directions of this legislation.
Ordinance No. 6962
November 19, 2024
Franchise Agreement No. FRN24-0003
Page 19 of 23
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Section 26. Effective Date
This Ordinance will take effect and be in force five (5) calendar days from
and after its passage, approval and publication as provided by law.
ATTEST:
Shawn Campbell, MMC, City Clerk
Published:
Ordinance No. 6962
November 19, 2024
Franchise Agreement No
Page 20 of 23
FRN24-0003
INTRODUCED:
PASSED:
APPROVED:
NANCY BACKUS, MAYOR
APPROVED AS TO FORM:
Jason, Whalen, City Attorney
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EXHIBIT "A"
Franchise Area
AREA A {KING COUNTY FRANCHISE 13083 AREA IN AUBURN INCLUDING
124TH AVENUE S NORTH OF BRIDGES}
THAT PORTION OF THE SOUTHEAST QUARTER OF SECTION 31,
TOWNSHIP 22 NORTH, RANGE 5 EAST, W.M., IN KING COUNTY,
WASHINGTON, LYING EAST OF THE WEST LINE OF THE GREEN RIVER;
ALSO, THAT PORTION OF THE SOUTHWEST QUARTER OF SECTION 32,
TOWNSHIP 22 NORTH, RANGE 5 EAST, W.M., IN KING COUNTY,
WASHINGTON, LYING EAST OF THE WEST LINE OF THE GREEN RIVER;
EXCEPT THAT PORTION WITHIN THE CITY OF KENT ACCORDING TO CITY
OF KENT ORDINANCE NUMBER 3171 RECORDED UNDER KING COUNTY
RECORDING NUMBER 9407281510;
ALSO, THE SOUTHEAST QUARTER OF SECTION 32, TOWNSHIP 22
NORTH, RANGE 5 EAST, W.M., IN KING COUNTY, WASHINGTON;
ALSO, THE SOUTHWEST QUARTER OF SECTION 33, TOWNSHIP 22
NORTH, RANGE 5 EAST, W.M., IN KING COUNTY, WASHINGTON; EXCEPT
THAT PORTION WITHIN THE CITY OF KENT LIMITS ACCORDING TO CITY
OF KENT ORDINANCE NUMBER 3171 RECORDED UNDER KING COUNTY
RECORDING NUMBER 9407281510;
ALSO, THE WEST 30 FEET OF THE SOUTH 700 FEET OF THE SOUTHEAST
QUARTER OF SECTION 33, TOWNSHIP 22 NORTH, RANGE 5 EAST, W.M.,
IN KING COUNTY, WASHINGTON;
AREA B {BRIDGES AND ADJACENT 124TH AVENUE S RIGHT OF WAY AND
SE 288T" STREET}
ALSO, BRIDGES, ACCORDING TO THE PLAT THEREOF, RECORDED IN
VOLUME 245 OF PLATS, PAGES 001 THROUGH 038, RECORDS OF KING
COUNTY, WASHINGTON;
ALSO, GOVERNMENT LOT 3, SECTION 4, TOWNSHIP 21 NORTH, RANGE 5
EAST, W.M., IN KING COUNTY, WASHINGTON;
ALSO, THE NORTH 26 FEET OF THE NORTHWEST QUARTER OF THE
NORTHWEST QUARTER OF SECTION 4, TOWNSHIP 21 NORTH, RANGE 5
EAST, W.M., IN KING COUNTY, WASHINGTON;
Ordinance No. 6962
November 19, 2024
Franchise Agreement No. FRN24-0003
Page 21 of 23
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ALSO, ALL OF 124TH AVE SE RIGHT OF WAY LYING NORTH OF THE
EASTERLY PROLONGATION OF THE SOUTHERLY RIGHT OF WAY LINE OF
THE 68 FOOT WIDE RIGHT OF WAY OF SE 292nd St LYING WITHIN THE
NORTHEAST QUARTER AND THE NORTHWEST QUARTER OF SECTION 4,
TOWNSHIP 21 NORTH, RANGE 5 EAST, W.M., IN KING COUNTY,
WASHINGTON, EXCEPT GOVERNMENT LOT 3;
AREA C {S 277T" STREET CORRIDOR}
ALSO, ALL OF SOUTH 277T" STREET RIGHT OF WAY BOUNDED ON THE
WEST BY THE WEST MARGIN OF CITY OF AUBURN CITY LIMITS AS
DESCRIBED IN CITY OF AUBURN ORDINANCE NUMBER 3420. AND
BOUNDED ON THE EAST BY THE EAST MARGIN OF THE CITY OF AUBURN
CITY LIMITS ACCORDING TO CITY OF AUBURN RESOLUTION NUMBER
5101 AS DESCRIBED IN KING COUNTY RECORDING NUMBER
20150623000988, LYING WITHIN THE NORTH HALF OF SECTION 36,
TOWNSHIP 22 NORTH, RANGE 4 EAST, W.M., AND THE NORTH HALF OF
SECTION 31, TOWNSHIP 22 NORTH, RANGE 5 EAST, W.M., IN KING
COUNTY, WASHINGTON.
Ordinance No. 6962
November 19, 2024
Franchise Agreement No. FRN24-0003
Page 22 of 23
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EXHIBIT "B"
STATEMENT OF ACCEPTANCE
City of Kent, for itself, its successors and assigns, hereby accepts and agrees to
be bound by all lawful terms, conditions and provisions of the Franchise attached
hereto and incorporated herein by this reference.
Franchisee Name
Address
City, State, Zip
By:
Name:
Title:
STATE OF )
)ss.
COUNTY OF )
Date:
On this day of 20_, before me the undersigned, a
Notary Public in and for the State of , duly commissioned and sworn,
personally appeared, of , the company that
executed the within and foregoing instrument, and acknowledged the said
instrument to be the free and voluntary act and deed of said company, for the uses
and purposes therein mentioned, and on oath stated that they are authorized to
execute said instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
on the date hereinabove set forth.
Signature
NOTARY PUBLIC in and for the State of
, residing at
MY COMMISSION EXPIRES:
Ordinance No. 6962
November 19, 2024
Franchise Agreement No. FRN24-0003
Page 23 of 23
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•
KENT
WASHINGTON
DATE: February 4, 2025
PUBLIC WORKS DEPARTMENT
Chad Bieren, P.E.
220 Fourth Avenue South
Kent, WA 98032
253-856-5600
TO: Kent City Council - Committee of the Whole
SUBJECT: Sale of City Parcel to King County - Authorize
MOTION: I move to authorize the Mayor to take all actions necessary and
sign all documents to sell the City of Kent surplus property located off 86th
Avenue South in unincorporated King County to King County Department of
Natural Resources and Parks, for $110,000, subject to final purchase terms
and conditions acceptable to the Public Works Director and City Attorney.
SUMMARY: King County Department of Natural Resources and Parks ("County")
has made an offer of $110,000.00 to purchase property owned by the City of Kent
("City") located off 86th Avenue South in unincorporated King County, also known
as King County Tax Parcel No. 302205-9060. The parcel is located adjacent to the
end of N.E. Auburn Creek where it flows into the Green River. The County intends
to incorporate this parcel into an environmental restoration project.
This parcel was acquired by the City in 1997, under threat of eminent domain for
the S.E. 272nd/277th Corridor Project, which was completed and opened to traffic
in 2000. Staff has determined that this property is no longer needed by the City for
any public purpose. The parcel area is 1.07 acres or 46,432 sq. ft. and is restricted
to agricultural or open space use. The property is impacted by a stream (NE Auburn
Creek) along the eastern boundary line, and the Green River forms the northern
boundary line. The County's offer was based on fair market value determined by a
licensed appraiser.
The sale of this property from the City to the County is exempt from the City's
surplus property process under Chapter 3.12 KCC. KCC 3.12.030(D) exempts
properties sold to a local, state, or federal agency from the surplus process.
Staff has reviewed and concurs with the appraisal report and recommends that
Council authorize the Mayor to sign the documents needed to complete the
transaction.
BUDGET IMPACT: Proceeds of the sale will go back into the Street Fund, as street
project funds were used for the original purchase.
SUPPORTS STRATEGIC PLAN GOAL:
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Sustainable Services - Providing quality services through responsible financial management,
economic growth, and partnerships.
ATTACHMENTS:
1. Purchase and Sale Agreement (PDF)
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KING COUNTY OPEN SPACE ACQUISITION
GREEN RIVER, HORSENECK FARMS
CITY OF KENT (MONK) PROPERTY
REAL ESTATE PURCHASE AND SALE AGREEMENT
This Real Estate Purchase and Sale Agreement ("Agreement") is made as of the date this
instrument is fully executed by and between the CITY OF KENT, a municipal corporation
("Seller"), and KING COUNTY, a home rule charter county and political subdivision of the State
of Washington ("Buyer"), for the purchase and sale of that certain property situated in King
County, Washington, described on Exhibit A, and all rights appurtenant ("the Property"). Seller
and Buyer may be collectively referred to herein as the "Parties" and individually as a "Party."
1. PURCHASE PRICE: The purchase price for the Property is One Hundred Ten
Thousand and No/100 Dollars (US $110,000.00) ("Purchase Price"). The Purchase Price is
payable at Closing in cash.
2. TITLE:
2.1 Deed: At Closing, Seller will execute and deliver to Buyer a Statutory Warranty Deed
conveying and warranting good and marketable title to the Property free and clear of all defects or
encumbrances except for the lien of real estate taxes and drainage service charges not yet due and
payable and those defects and/or encumbrances (if any) identified on Exhibit B (collectively,
"Permitted Exceptions").
2.2 Title Insurance: At Closing, Buyer shall receive (at Buyer's expense) an owner's Standard
ALTA policy of title insurance, dated as of the Date of Closing and insuring Buyer in the amount
of the Purchase Price against loss or damage by reason of defect in Buyer's title to the Property
subject only to the printed exclusions appearing in the policy form and any Permitted Exceptions.
3. CONTINGENCIES:
3.1 Due Diligence Inspection and Feasibility: Buyer shall satisfy itself by investigation and
inspection, at its cost and expense, in its sole and absolute discretion that the condition of the
Property for Buyer's contemplated use meets with its approval ("Due Diligence Contingency").
During the Due Diligence Period (as hereafter defined), Buyer may have a Phase I Environmental
Site Assessment ("ESA") of the Property performed by a qualified environmental consultant (the
"ESA Consultant"). If the ESA Consultant recommends further assessment or remediation of the
Property (including, but not limited to, a Phase II ESA) (the "Phase I Recommendations"), then
Buyer may provide Seller notice of the Phase I Recommendations and thereafter negotiate with
Seller regarding an appropriate "Corrective Action Plan." If Buyer and Seller are not able to agree
upon a Corrective Action Plan that would address the Phase I Recommendations to Buyer's
satisfaction, or if Buyer is not satisfied with the condition of the Property for any other reason, this
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Agreement shall terminate pursuant to Section 5.8. Seller hereby grants Buyer's employees,
agents, and contractors a right of entry onto the Property for any site inspections performed in
connection with this Due Diligence Contingency. In connection with such inspections, Buyer
agrees to hold harmless, indemnify and defend Seller, its officers, agents and employees, from and
against all claims, losses, or liability, for injuries, sickness or death of persons, including
employees of Buyer, caused by or arising out of any act, error, or omission of Buyer, its officers,
agents, contractors, subcontractors, or employees in entering the Property for the above purposes,
to the extent not caused by or arising out of any act, error, or omission of Seller, its officers, agents,
and employees.
3.2 Funding: The sale of the Property is contingent on receipt of grant funding and/or
appropriation by the Metropolitan King County Council, King County Executive's approval of
said appropriation, and spending authority of funds sufficient to close the sale.
3.3 Encroachment: The sale of the Property is contingent on resolution of the removal of that
certain encroachment associated with southerly adjacent property, parcel number 000040-0001.
The sufficiency of such resolution shall be in Buyer's sole and absolute discretion.
3.4 Removal of Contingencies: Buyer shall have a period of 120 days from the date all Parties
have signed this Agreement to remove all contingencies (the "Due Diligence Period"). Buyer may
remove such contingencies by sending written notice thereof to Seller pursuant to Section 7 herein.
If the contingencies are not removed within the Due Diligence Period, this Agreement will
terminate, and the Parties shall have no further obligations hereunder.
4. RISK OF LOSS: Seller will bear the risk of loss of or damage to the Property prior to
Closing. If such loss or damage occurs to the Property, Seller shall promptly notify Buyer thereof
and Buyer may, in its sole discretion, terminate this Agreement by giving notice of termination to
the Seller.
5. SELLER'S REPRESENTATIONS, WARRANTIES, AND COVENANTS: Seller
represents, warrants, and covenants to Buyer at the date of execution of this Agreement and the
Date of Closing that:
5.1 Authority: Seller, and the person(s) signing on behalf of Seller, have full power and
authority to execute this Agreement and perform Seller's obligations, and if Seller is a corporation,
all necessary corporate action to authorize this transaction has been taken.
5.2 No Leases: The Property is not subject to any leases, tenancies, or rights of persons in
possession and Seller shall not enter into or establish any leases, tenancies, or rights of persons in
possession prior to Closing.
5.3 No Material Defect: Seller is unaware of any material defect in the Property.
5.4 Debris and Personal Property: Prior to Closing, Seller shall remove all debris and
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personal property located on the Property (if any). Removal of all personal property and debris
shall be at Seller's cost and expense, and Seller will indemnify and hold Buyer harmless from all
claims and expenses arising from such removal.
5.5 Contamination: Seller hereby represents and warrants that (a) Seller has not caused or
allowed the generation, treatment, storage, or disposal of Hazardous Substances on the Property,
except in accordance with local, state, and federal statutes and regulations; (b) Seller has not caused
or allowed the release of any Hazardous Substance onto, at, or near the Property; (c) Seller is in
compliance with all applicable laws, rules, and regulations regarding the handling of Hazardous
Substances; (d) Seller has secured all necessary permits, licenses, and approvals necessary to its
operation on the Property, and is in compliance with such permits; (e) Seller has not received
notice of any proceedings, claims, or lawsuits arising out of its operations on the Property; and (f)
to the Seller's knowledge, the Property is not, nor has it ever been subject to the release of
Hazardous Substances. For the purposes of this Agreement, the term "Hazardous Substance"
means any waste, pollutant, contaminant, or other material that now or in the future becomes
regulated or defined under any local, state, or federal environmental law or regulation.
5.6 Fees and Commissions: Seller shall pay for any broker's and other commissions and fees
incurred by the Seller in connection with the sale of the Property and Seller shall indemnify and
hold Buyer harmless from all such claims for commission and fees.
5.7 Indemnification: Seller agrees to indemnify, defend, and hold harmless Buyer, its
employees, agents, heirs, and assigns, from and against any and all damage, claim, liability, or
loss, including reasonable attorney's and other fees, arising out of or in any way connected to the
breach of any representation or warranty contained herein. Such duty of indemnification shall
include, but not be limited to damage, liability, or loss pursuant to all federal environmental laws,
Washington State environmental laws, strict liability, and common law.
5.8 Termination: If Buyer determines in its sole and absolute discretion that any
representation, warranty, or covenant contained herein has been breached prior to Closing, Buyer
may elect to terminate this Agreement by sending written notice of the breach to Seller pursuant
to Section 7 herein.
6. CLOSING:
6.1 Time for Closing: The sale will be closed in the office of the Closing Agent not later than
twenty-one (21) days from the date all contingencies set forth in Section 3 herein have been
removed, or as soon thereafter as practicable.
Buyer and Seller shall deposit in escrow with the Closing Agent all instruments, documents, and
moneys necessary to complete the sale in accordance with this Agreement. As used in this
Agreement, "Closing" and "Date of Closing" means the date on which all appropriate documents
are recorded and proceeds of the sale are available for disbursement to Seller. The Closing Agent
shall be:
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Stewart Title Company
981 Powell Ave. SW, Ste 100
Renton, WA 98057
6.2 Prorations and Closing Costs: Seller will pay real estate excise taxes (if any are due) and
the full first half or second half real property tax installment due and owing, as determined by the
Date of Closing. Seller will receive a prorated refund directly from King County Treasury
Operations for the number of days post -Closing for the applicable installment period. Buyer will
pay the premium for its owner's title insurance policy, the cost of recording the Statutory Warranty
Deed from the Seller, and the Closing Agent's escrow fees.
6.3 Possession: Buyer shall be entitled to possession of the Property at Closing.
6.4 Seller Questionnaire: The "Seller Questionnaire" is attached to this Agreement as Exhibit
C and shall be completed by Seller and delivered to Buyer at the time this Agreement has been
executed by both Parties. Nothing in the Seller Questionnaire creates a representation or warranty
by Seller with respect to the Property, nor does it create any rights or obligations for the Parties.
7. NOTICES: Any notices required herein shall be given to the Parties: (a) personally, (b)
by certified mail with return receipt, or (c) electronically, with read receipt or delivery confirmation
or both. Notices shall be effective (a) upon personal delivery, (b) after five (5) calendar days
following deposit in the U.S. mail, or (c) immediately upon electronic transmittal to the email
addresses below. The Party providing notice shall bear the burden to prove the date that notice was
delivered.
TO SELLER:
City of Kent
Mike Mactutis
Environmental Engineering Manager
220 Fourth Avenue South
Kent, WA 98032
TO BUYER:
King County Water and Land Resources Division
Open Space Acquisitions
201 South Jackson Street, Suite 5600
Seattle, WA 98104
Attn: Lori King
mmactutis@kentwa.gov lori.king@kingcounty.gov
crolcik-wilcoxgkentwa. gov
8. DEFAULT AND ATTORNEYS' FEES:
8.1 Default by Buyer: If Closing does not occur due to default by Buyer, Seller's sole and
exclusive remedy shall be to terminate this Agreement.
8.2 Default by Seller: If Closing does not occur due to default of Seller, Buyer shall have the
right to bring an action for specific performance, damages, and any other remedies available at law
or in equity. In seeking any equitable remedies, Buyer shall not be required to prove or establish
that Buyer does not have an adequate remedy at law. Seller hereby waives the requirement of any
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such proof and acknowledges that Buyer would not have an adequate remedy at law for Seller's
breach of this Agreement.
8.3 Attorneys' Fees: In an action to enforce this Agreement, each Party shall bear its own
attorneys' fees and costs.
9. GENERAL: This is the entire agreement of the Buyer and Seller with respect to the
Property and supersedes all prior or contemporaneous agreements between them, written or oral.
This Agreement may be modified only in writing, signed by Buyer and Seller. Any waivers under
this agreement must be in writing. A waiver of any right or remedy in the event of a default will
not constitute a waiver of such right or remedy in the event of any subsequent default. This
Agreement is for the benefit of, and binding upon, Buyer and Seller and their heirs, personal
representatives, successors, and assigns. The invalidity or unenforceability of any provision of this
Agreement will not affect the validity or enforceability of any other provision. Time is of the
essence in this Agreement.
10. WASTE; ALTERATION OF PROPERTY: Seller shall not (a) commit waste on the
Property; (b) remove trees or other vegetation, coal, minerals, or other valuable materials; or (c)
substantially alter the surface or subsurface of the Property without the express written consent of
Buyer.
11. SURVIVAL OF WARRANTIES: The terms, covenants, representations, and warranties
shall not merge in the deed of conveyance but shall survive Closing.
12. LEGAL RELATIONSHIP: The Parties to this Agreement execute and implement this
Agreement solely as Seller and Buyer. No partnership, joint venture, or joint undertaking shall be
constructed from this Agreement.
13. GOVERNING LAW AND VENUE: This Agreement and all amendments hereto shall
be governed by and construed in accordance with the laws of the State of Washington applicable
to contracts made and to be performed therein, without giving effect to its conflicts of law rules or
choice of law provisions. In the event that either Party shall bring a lawsuit related to or arising
out of this Agreement, the Superior Court of King County, Washington, shall have exclusive
jurisdiction and venue.
14. COUNTERPARTS: To facilitate execution, this Agreement may be executed in as many
counterparts as may be convenient or required. It shall not be necessary that the signature of, or on
behalf of, each Party, or that the signature of all persons required to bind any Party, appear on each
counterpart. All counterparts shall collectively constitute a single instrument. It shall not be
necessary in making proof of this Agreement to produce or account for more than a single
counterpart containing the respective signatures of, or on behalf of, each Party hereto. Any
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signature page to any counterpart may be detached from such counterpart without impairing the
legal effect of the signatures thereon and thereafter may be attached to another counterpart identical
thereto except having attached to it additional signature pages.
15. TERMINATION OF OFFER: This offer shall terminate if not accepted by Seller on or
before October 25, 2024.
BUYER: King County, a home rule charter county and political subdivision
of the State of Washington.
Signed by:
BY: r_<;
EE594DFE99DB24FB
iviau,A, 1vKDiumn, Deputy Director
Department of Natural Resources and Parks
9/23/2024
Date:
SELLER: City of Kent
Date
Dana Ralph, Mayor
EXHIBITS: Exhibit A, Legal Description
Exhibit B, Permitted Exceptions
Exhibit C, Seller Questionnaire
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EXHIBIT A
LEGAL DESCRIPTION
That portion of Government Lot 4 in the Southwest quarter of Section 30, Township 22 North,
Range 5 East, W.M., lying Easterly of 86th Ave South (Kent -Thomas Road) and Westerly of the
following described line; commencing at the Northeast corner of the R.H. Beaty Donation Land
Claim;
Thence North 88°56'30" West along the North line of said Donation Claim a distance of 1735.30
feet to the centerline of an existing drainage channel and the point of beginning of said line;
Thence along said channel North 68° 12'46" West a distance of 15.79 feet;
Thence North 32°16'09" West a distance of 98.45 feet;
Thence North 71°38'46" West a distance of 61.36 feet;
Thence North 11'35'29" East 59.25 feet;
Thence North 10° 18'05" West a distance of 42.81 feet to a point on the line of ordinary high
water of the Green River;
Thence along the line of ordinary high water South 59°06'52" West a distance of 64.42 feet;
South 73°09'37" West a distance of 26.58 feet; South 85°48'14" West a distance of 32.56 feet;
South 72'29'15" West a distance of 80.95 feet; South 86°10'32" West a distance of 68.43 feet to
the Easterly margin of 86th Avenue South (Kent -Thomas Road);
Thence along said margin South 13°33'14" East a distance of 133.80 feet to the Northern margin
of the R.H. Beaty Donation Claim;
Thence South 88°56'30" East along said Donation Claim a distance of 348.59 feet to the point of
beginning.
Situate in the County of King, State of Washington.
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EXHIBIT B
PERMITTED EXCEPTIONS
Those special exceptions listed on Stewart Title Company Title Report #2279311 (Fourth
Report) dated July 17, 2024, and any supplements thereto (which Title Report and Supplements
are incorporated into this Agreement by this reference) numbered 6 (Paid Current), 7, 18 and 19,
Schedule B-I and 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10, Schedule B-II.
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EXHIBIT C
Landowner Questionnaire
Title
1. Are there any encroachments, ❑ Yes ® No ❑ Don't know
boundary agreements, or boundary
disputes?
If yes, please explain:
2. Is there a private road or easement
agreement for access to the property?
3. Are there any written agreements for
joint maintenance of an easement or
road?
Annual Cost:
Utilities
1. The source of water for the property is
2. The property is served by:
3. Utilities are provided, as follows:
Oil:
Gas:
Electric:
Sewage:
Water:
4. List any leased equipment and terms:
Homeowner's Association
Is there a Homeowners' Association?
Name of Association:
Contact name:
Name of Association:
Contact phone number and/or address:
Annual membership dues:
Pending special assessments:
❑ Yes ® No ❑ Don't know
❑ Yes ® No ❑ Don't know
❑ Private or publicly owned water system
❑ Private well serving only the subject property
❑ Other water system:
❑ Public sewer system
❑ On -site septic system
❑ Other disposal system:
In 86th Ave. S.
❑ Yes ® No ❑ Don't know
a
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PUBLIC WORKS DEPARTMENT
Chad Bieren, P.E.
220 Fourth Avenue South
KENT Kent, WA 98032
WASHI NGTON 253-856-5600
DATE: February 4, 2025
TO: Kent City Council - Committee of the Whole
SUBJECT: 2024 PSRC Transportation Grants — South 212th Street
Preservation (59th to Place South to 72nd Avenue South) -
Accept
MOTION: I move to accept grant funds in the amount of $1,500,000 from
the Puget Sound Regional Council for the South 212th Street Preservation
project, amend the budget, authorize the expenditure of funds, and
authorize the Mayor to sign all necessary agreements and other
documents, subject to final terms and conditions acceptable to the Public
Works Director and City Attorney.
SUMMARY: The Puget Sound Regional Council's Regional Transportation
Improvement Program released a call for projects in 2024. The program awards
projects with a focus on improving local and regional mobility.
The City received $1,500,000 for the South 212th Street Preservation from 59th
Place South to 72nd Avenue South project. The preservation project would replace
failing pavement segments, overlay the street, and assess curb ramps and
pedestrian push buttons to meet ADA requirements.
The South 212th Street Preservation project is estimated at $3,346,000.
BUDGET IMPACT: Local match would be spent from Street Funds.
SUPPORTS STRATEGIC PLAN GOAL:
Evolving Infrastructure - Connecting people and places through strategic investments in physical
and technological infrastructure.
Thriving City - Creating safe neighborhoods, healthy people, vibrant commercial districts, and
inviting parks and recreation.
Sustainable Services - Providing quality services through responsible financial management,
economic growth, and partnerships.
Inclusive Community - Embracing our diversity and advancing equity through genuine community
engagement.
ATTACHMENTS:
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1. Kent 2024 Project Selection Award Letter (PDF)
2. Local Agency Agreement (PDF)
Packet Pg. 408
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Puget Sound Regional Council
1201 Third Avenue, Suite 500, Seattle, WA 98101-3055 1 psrc.org { 206--464-7090
December 18, 2024
The Honorable Dana Ralph
City of Kent
220 Fourth Ave. S
Kent, WA 98032
Dear Mayoor�alph:
Congratulations! I'm pleased to let you know that the City of Kent is receiving
$5,875,000 in PSRC funding for the following project(s):
AWARD
FUNDING
FUNDING
PROJECT
AMOUNT
SOURCE
DEADLINE
Meet Me on Meeker. Interurban
$2,500,000
FHWA
June 1, 2028
Trail to 6th Avenue S Connection
Earthworks Park to Downtown
$875,000
FHWA
June 1, 2027
Connection
South 212th Street Preservation
(59th PI S to 72nd Ave South)
$1,500,000
FHWA
June 1, 2027
S 196th Street Preservation
$1,500,000
FHWA
June 1, 2028
The PSRC Executive Board voted in October to award federal funds to priority projects
that will improve local and regional mobility. The projects are part of ❑ $9.5 billion
Regional Transportation Improvement Program over the next four years including
investments in transit, maintenance and preservation, bicycle and pedestrian facilities,
safety, and state and local roadways. Final approval by the state and federal funding
agencies is expected in early 2025.
Securing federal transportation funding for communities in the region is one of the
most important responsibilities of the Puget Sound Regional Council. Through our
merit -based project selection process, PSRC ensures that federal transportation funds
Packet Pg. 409
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Mayor Ralph
❑ecember 18, 2024
Page 2
are put to work on priority projects that meet focal needs and help achieve the
region's long-term goals for transportation, economic development and growth
planning. This year the project selection criteria were adapted to incorporate
recommendations from PSRC's Equity Advisory Committee ensuring equity is included
in all transportation funding decisions. Kudos to you and your staff for securing this
funding. r
Sincerely,
Josh Brown
Executive Director, Puget Sound Regional Council
Enclosure
cc:
Chad Bieren, Public Works Director
Packet Pg. 410
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CAWashington State
iDepartment of Transportation
Agency City of Kent
Address 220 Fourth Ave S
Kent, WA 98032
Local Agency Agreement
CFDA No. 20.205 - Highway Planning and Construction
(Catalog of Federal Domestic Assistance)
Project No.
Agreement No.
For WSDOT Use
The Local Agency having complied, or hereby agreeing to comply, with the terms and conditions set forth in (1) Title 23, U.S. Code
Highways, (2) the regulations issued pursuant thereto, (3) 2 CFR Part 200, (4) 2 CFR Part 180 — certifying that the local agency is not
excluded from receiving Federal funds by a Federal suspension or debarment, (5) the policies and procedures promulgated by the
Washington State Department of Transportation, and (6) the federal aid project agreement entered into between the State and Federal
Government, relative to the above project, the Washington State Department of Transportation will authorize the Local Agency to
proceed on the project by a separate notification. Federal funds which are to be obligated for the project may not exceed the amount
shown herein on line r, column 3, without written authority by the State, subject to the approval of the Federal Highway Administration.
All project costs not reimbursed by the Federal Government shall be the responsibility of the Local Agency.
Project Description
Name South 212th Street Preservation (59th PI S to 72nd Ave South) Length 1.0 Mi
Termini 59th Place South to 72nd Avenue South
Description of Work
Grind and overlay the roadway, replace failing pavement sections, and make ADA curb ramps and pedestrian push button
improvements.
Project Agreement End Date 2031 Claiming Indirect Cost Rate
Proposed Advertisement Date Nov 2027 ❑ Yes ✓ No
Type of Work
Estimate
of Fundin
(1)
Estimated Total
Project Funds
(2)
Estimated Agency
Funds
(3)
Estimated Federal
Funds
PE a.Aciency
206,000.00
206,000.00
b. Other
Federal Aid c. Other
Participation d. State Services
Ratio for PE
e. Total PE Cost Estimate a+h+c+d
206,000.00
206,000.00
0.00
Right of Way f. Agency
.Other
Federal Aid h. Other
Participation
Ratio for RW i. State Services
. Total R/W Cost Estimate f+ +h+i
0.00
0.00
0.00
Construction k. Contract
3,000,000.00
1,500,000.00
1,500,000.00
I. Other Contract (non -participating
m. Other Consultant - CM
Federal Aid n. Other Consultant -CM (non -part.
Participation
o.Agency
140,000.00
140,000.00
Ratio for CN
p. State Services
q. Total CN Cost Estimate k+l+m+n+o+
3,140,000.00
1,640,000.00
1,500,000.00
r. Total Pro'ect Cost Estimate a+'+
3,346,000.00
1,846,000.00
1,500,000.00
Agency Official
By
Title
Agency Date
Washington State Department of Transportation
By
Director, Local Programs
Date Executed
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DOT Form 140-039 Packet Pg. 411
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Construction Method of Financing (Check Method Selected)
State Ad and Award
Method A - Advance Payment - Agency Share of total construction cost (based on contract award)
Method B - Withhold from gas tax the Agency's share of total construction coast (line 5, column 2) in
the amount of
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at $
Local Force or Local Ad and Award
per month for
months.
Method C - Agency cost incurred with partial reimbursement
The Local Agency further stipulates that pursuant to said Title 23, regulations and policies and
procedures, and as a condition to payment of the federal funds obligated, it accepts and will
comply with the applicable provisions set forth below. Adopted by official action on
, Resolution/Ordinance No.
Provisions
I. Scope of Work
The Agency shall provide all the work, labor, materials, and services necessary to perform the project which is described and set
forth in detail in the "Project Description" and "Type of Work."
When the State acts for and on behalf of the Agency, the State shall be deemed an agent of the Agency and shall perform the
services described and indicated in "Type of Work" on the face of this agreement, in accordance with plans and specifications as
proposed by the Agency and approved by the State and the Federal Highway Administration.
When the State acts for the Agency but is not subject to the right of control by the Agency, the State shall have the right to perform
the work subject to the ordinary procedures of the State and Federal Highway Administration.
II. Delegation of Authority
The State is willing to fulfill the responsibilities to the Federal Government by the administration of this project. The Agency agrees
that the State shall have the full authority to carry out this administration. The State shall review, process, and approve documents
required for federal aid reimbursement in accordance with federal requirements. If the State advertises and awards the contract, the
State will further act for the Agency in all matters concerning the project as requested by the Agency. If the Local Agency advertises and
awards the project, the State shall review the work to ensure conformity with the approved plans and specifications.
III. Project Administration
Certain types of work and services shall be provided by the State on this project as requested by the Agency and described in the
Type of Work above. In addition, the State will furnish qualified personnel for the supervision and inspection of the work in progress. On
Local Agency advertised and awarded projects, the supervision and inspection shall be limited to ensuring all work is in conformance
with approved plans, specifications, and federal aid requirements. The salary of such engineer or other supervisor and all other salaries
and costs incurred by State forces upon the project will be considered a cost thereof. All costs related to this project incurred by
employees of the State in the customary manner on highway payrolls and vouchers shall be charged as costs of the project.
IV. Availability of Records
All project records in support of all costs incurred and actual expenditures kept by the Agency are to be maintained in accordance
with local government accounting procedures prescribed by the Washington State Auditor's Office, the U.S. Department of
Transportation, and the Washington State Department of Transportation. The records shall be open to inspection by the State and
Federal Government at all reasonable times and shall be retained and made available for such inspection for a period of not less than
three years from the final payment of any federal aid funds to the Agency. Copies of said records shall be furnished to the State and/or
Federal Government upon request.
V. Compliance with Provisions
The Agency shall not incur any federal aid participation costs on any classification of work on this project until authorized in writing
by the State for each classification. The classifications of work for projects are:
1. Preliminary engineering.
2. Right of way acquisition.
3. Project construction.
Once written authorization is given, the Agency agrees to show continuous progress through monthly billings. Failure to show
continuous progress may result the Agency's project becoming inactive, as described in 23 CFR 630, and subject to de -obligation of
federal aid funds and/or agreement closure.
If right of way acquisition, or actual construction of the road for which preliminary engineering is undertaken is not started by the
close of the tenth fiscal year following the fiscal year in which preliminary engineering phase was authorized, the Agency will repay to
the State the sum or sums of federal funds paid to the Agency under the terms of this agreement (see Section IX).
If actual construction of the road for which right of way has been purchased is not started by the close of the tenth fiscal year
following the fiscal year in which the right of way phase was authorized, the Agency will repay to the State the sum or sums of federal
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DOT Form 140-039 Packet Pg. 412
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funds paid to the Agency under the terms of this agreement (see Section IX).
The Agency agrees that all stages of construction necessary to provide the initially planned complete facility within the limits of this
project will conform to at least the minimum values set by approved statewide design standards applicable to this class of highways,
even though such additional work is financed without federal aid participation. Vj
The Agency agrees that on federal aid highway construction projects, the current federal aid regulations which apply to liquidated
damages relative to the basis of federal participation in the project cost shall be applicable in the event the contractor fails to complete
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the contract within the contract time.
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VI. Payment and Partial Reimbursement
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The total cost of the project, including all review and engineering costs and other expenses of the State, is to be aid b the Agency
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and by the Federal Government. Federal funding shall be in accordance with the Federal Transportation Act, as amended, 2 CFR Part
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200. The State shall not be ultimately responsible for any of the costs of the project. The Agency shall be ultimately responsible for all
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costs associated with the project which are not reimbursed by the Federal Government. Nothing in this agreement shall be construed as
a promise by the State as to the amount or nature of federal participation in this project.
The Agency shall bill the state for federal aid project costs incurred in conformity with applicable federal and state laws. The agency
shall minimize the time elapsed between receipt of federal aid funds and subsequent payment of incurred costs. Expenditures by the
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Local Agency for maintenance, general administration, supervision, and other overhead shall not be eligible for federal participation
unless a current indirect cost plan has been prepared in accordance with the regulations outlined in 2 CFR Part 200 - Uniform Admin
Requirements, Cost Principles and Audit Requirements for Federal Awards, and retained for audit.
The State will pay for State incurred costs on the project. Following payment, the State shall bill the Federal Government for
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reimbursement of those costs eligible for federal participation to the extent that such costs are attributable and properly allocable to
this project. The State shall bill the Agency for that portion of State costs which were not reimbursed by the Federal Government (see
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Section IX).
1. Project Construction Costs
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Project construction financing will be accomplished by one of the three methods as indicated in this agreement.
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Method A — The Agency will place with the State, within (20) days after the execution of the construction contract, an advance in the
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amount of the Agency's share of the total construction cost based on the contract award. The State will notify the Agency of the exact
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amount to be deposited with the State. The State will pay all costs incurred under the contract upon presentation of progress billings
from the contractor. Following such payments, the State will submit a billing to the Federal Government for the federal aid participation
share of the cost. When the project is substantially completed and final actual costs of the project can be determined, the State will
present the Agency with a final billing showing the amount due the State or the amount due the Agency. This billing will be cleared by
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either a payment from the Agency to the State or by a refund from the State to the Agency.
Method B — The Agency's share of the total construction cost as shown on the face of this agreement shall be withheld from its
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monthly fuel tax allotments. The face of this agreement establishes the months in which the withholding shall take place and the exact
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amount to be withheld each month. The extent of withholding will be confirmed by letter from the State at the time of contract award.
Upon receipt of progress billings from the contractor, the State will submit such billings to the Federal Government for payment of its
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participating portion of such billings.
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Method C — The Agency may submit vouchers to the State in the format prescribed by the State, in duplicate, not more than once
per month for those costs eligible for Federal participation to the extent that such costs are directly attributable and properly allocable
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to this project. Expenditures by the Local Agency for maintenance, general administration, supervision, and other overhead shall not be
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eligible for Federal participation unless claimed under a previously approved indirect cost plan.
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The State shall reimburse the Agency for the Federal share of eligible project costs up to the amount shown on the face of this
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agreement. At the time of audit, the Agency will provide documentation of all costs incurred on the project. The State shall bill the
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Agency for all costs incurred by the State relative to the project. The State shall also bill the Agency for the federal funds paid by the
State to the Agency for project costs which are subsequently determined to be ineligible for federal participation (see Section IX).
VII. Audit of Federal Consultant Contracts
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The Agency, if services of a consultant are required, shall be responsible for audit of the consultant's records to determine eligible
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federal aid costs on the project. The report of said audit shall be in the Agency's files and made available to the State and the Federal
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Government.
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An audit shall be conducted by the WSDOT Internal Audit Office in accordance with generally accepted governmental auditing
standards as issued by the United States General Accounting Office by the Comptroller General of the United States; WSDOT Manual
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M 27-50, Consultant Authorization, Selection, and Agreement Administration; memoranda of understanding between WSDOT and
FHWA; and 2 CFR Part 200.501 - Audit Requirements.
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If upon audit it is found that overpayment or participation of federal money in ineligible items of cost has occurred, the Agency shall
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reimburse the State for the amount of such overpayment or excess participation (see Section IX).
Vill. Single Audit Act
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The Agency, as a subrecipient of federal funds, shall adhere to the federal regulations outlined in 2 CFR Part 200.501 as well as all
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applicable federal and state statutes and regulations. A subrecipient who expends $750,000 or more in federal awards from all sources
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during a given fiscal year shall have a single or program -specific audit performed for that year in accordance with the provisions of 2
CFR Part 200.501. Upon conclusion of the audit, the Agency shall be responsible for ensuring that a copy of the report is transmitted
DOT Form 140-039 Packet Pg. 413
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4.K.b
promptly to the State.
IX. Payment of Billing
The Agency agrees that if payment or arrangement for payment of any of the State's billing relative to the project (e.g., State force
work, project cancellation, overpayment, cost ineligible for federal participation, etc.) is not made to the State within 45 days after Ui
the Agency has been billed, the State shall effect reimbursement of the total sum due from the regular monthly fuel tax allotments to Q
the Agency from the Motor Vehicle Fund. No additional Federal project funding will be approved until full payment is received unless
otherwise directed by the Director, Local Programs.
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Project Agreement End Date - This date is based on your projects Period of Performance (2 CFR Part 200.309). r-
Any costs incurred after the Project Agreement End Date are NOT eligible for federal reimbursement. All eligible costs incurred prior
to the Project Agreement End Date must be submitted for reimbursement within 60 days after the Project Agreement End Date or they N
become ineligible for federal reimbursement. d
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X. Traffic Control, Signing, Marking, and Roadway Maintenance
The Agency will not permit any changes to be made in the provisions for parking regulations and traffic control on this project
without prior approval of the State and Federal Highway Administration. The Agency will not install or permit to be installed any signs,
signals, or markings not in conformance with the standards approved by the Federal Highway Administration and MUTCD. The Agency
will, at its own expense, maintain the improvement covered by this agreement.
XI. Indemnity
The Agency shall hold the Federal Government and the State harmless from and shall process and defend at its own expense
all claims, demands, or suits, whether at law or equity brought against the Agency, State, or Federal Government, arising from the
Agency's execution, performance, or failure to perform any of the provisions of this agreement, or of any other agreement or contract
connected with this agreement, or arising by reason of the participation of the State or Federal Government in the project, PROVIDED,
nothing herein shall require the Agency to reimburse the State or the Federal Government for damages arising out of bodily injury to
persons or damage to property caused by or resulting from the sole negligence of the Federal Government or the State.
XII. Nondiscrimination Provision
No liability shall attach to the State or Federal Government except as expressly provided herein.
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The Agency shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of any USDOT-
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assisted contract and/or agreement or in the administration of its DBE program or the requirements of 49 CFR Part 26. The Agency
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shall take all necessary and reasonable steps under 49 CFR Part 26 to ensure nondiscrimination in the award and administration of
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USDOT-assisted contracts and agreements. The WSDOT's DBE program, as required by 49 CFR Part 26 and as approved by USDOT,
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is incorporated by reference in this agreement. Implementation of this program is a legal obligation and failure to carry out its terms
shall be treated as a violation of this agreement. Upon notification to the Agency of its failure to carry out its approved program, the
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Department may impose sanctions as provided for under Part 26 and may, in appropriate cases, refer the matter for enforcement under
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18 U.S.C. 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31 U.S. C. 3801 et seq.).
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The Agency hereby agrees that it will incorporate or cause to be incorporated into any contract for construction work, or modification
thereof, as defined in the rules and regulations of the Secretary of Labor in 41 CFR Chapter 60, which is paid for in whole or in part with
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funds obtained from the Federal Government or borrowed on the credit of the Federal Government pursuant to a grant, contract, loan,
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insurance, or guarantee or understanding pursuant to any federal program involving such grant, contract, loan, insurance, or guarantee,
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the required contract provisions for Federal -Aid Contracts (FHWA 1273), located in Chapter 44 of the Local Agency Guidelines.
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The Agency further agrees that it will be bound by the above equal opportunity clause with respect to its own employment
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practices when it participates in federally assisted construction work: Provided, that if the applicant so participating is a State or Local
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Government, the above equal opportunity clause is not applicable to any agency, instrumentality, or subdivision of such government
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which does not participate in work on or under the contract.
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The Agency also agrees:
(1) To assist and cooperate actively with the State in obtaining the compliance of contractors and subcontractors with the equal
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opportunity clause and rules, regulations, and relevant orders of the Secretary of Labor.
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(2) To furnish the State such information as it may require for the supervision of such compliance and that it will otherwise assist the
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State in the discharge of its primary responsibility for securing compliance.
(3) To refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with
a contractor debarred from, or who has not demonstrated eligibility for, government contracts and federally assisted construction
contracts pursuant to the Executive Order.
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(4) To carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors
and subcontractors by the State, Federal Highway Administration, or the Secretary of Labor pursuant to Part II, subpart D of the
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Executive Order.
In addition, the Agency agrees that if it fails or refuses to comply with these undertakings, the State may take any or all of the
following actions:
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(a) Cancel, terminate, or suspend this agreement in whole or in part;
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(b) Refrain from extending any further assistance to the Agency under the program with respect to which the failure or refusal
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occurred until satisfactory assurance of future compliance has been received from the Agency; and
DOT Form 140-039 Packet Pg. 414
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(c) Refer the case to the Department of Justice for appropriate legal proceedings.
XIII. Liquidated Damages
The Agency hereby agrees that the liquidated damages provisions of 23 CFR Part 635, Subpart 127, as supplemented, relative to
the amount of Federal participation in the project cost, shall be applicable in the event the contractor fails to complete the contract within Ui
the contract time. Failure to include liquidated damages provision will not relieve the Agency from reduction of federal participation in Q
accordance with this paragraph.
XIV. Termination for Public Convenience
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The Secretary of the Washington State Department of Transportation may terminate the contract in whole, or from time to time in 0
part, whenever:
(1) The requisite federal funding becomes unavailable through failure of appropriation or otherwise.
(2) The contractor is prevented from proceeding with the work as a direct result of an Executive Order of the President with
respect to the prosecution of war or in the interest of national defense, or an Executive Order of the President or Governor of
the State with respect to the preservation of energy resources.
(3) The contractor is prevented from proceeding with the work by reason of a preliminary, special, or permanent restraining
order of a court of competent jurisdiction where the issuance of such order is primarily caused by the acts or omissions of
persons or agencies other than the contractor.
(4) The Secretary is notified by the Federal Highway Administration that the project is inactive.
(5) The Secretary determines that such termination is in the best interests of the State.
XV. Venue for Claims and/or Causes of Action
For the convenience of the parties to this contract, it is agreed that any claims and/or causes of action which the Local Agency
has against the State of Washington, growing out of this contract or the project with which it is concerned, shall be brought only in the
Superior Court for Thurston County.
XVI. Certification Regarding the Restrictions of the Use of Federal Funds for Lobbying
The approving authority certifies, to the best of his or her knowledge and belief, that:
(1) No federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or
attempting to influence an officer or employee of any federal agency, a member of Congress, an officer or employee of Congress, or
an employee of a member of Congress in connection with the awarding of any federal contract, the making of any federal grant, the
making of any federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment,
or modification of any federal contract, grant, loan, or cooperative agreement.
(2) If any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to
influence an officer or employee of any federal agency, a member of Congress, an officer or employee of Congress, or an employee
of a member of Congress in connection with this federal contract, grant, loan, or cooperative agreement, the undersigned shall
complete and submit the Standard Form - LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions.
(3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at
all tiers (including subgrants, and contracts and subcontracts under grants, subgrants, loans, and cooperative agreements) which
exceed $100,000, and that all such subrecipients shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into.
Submission of this certification as a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S.
Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such failure.
XVII. Assurances
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Local agencies receiving Federal funding from the USDOT or its operating administrations (i.e., Federal Highway Administration,
Federal Transit Administration, Federal Aviation Administration) are required to submit a written policy statement, signed by the Agency E
Executive and addressed to the State, documenting that all programs, activities, and services will be conducted in compliance with 0)
Section 504 and the Americans with Disabilities Act (ADA).
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Additional Provisions
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DOT Form 140-039 Packet Pg. 415
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Instructions
1. Agency Name and Billing Address — Enter the Agency of primary interest which will become a party to the agreement
2. Project Number — Leave blank. This number will be assigned by WSDOT.
3. Agreement Number — Leave blank. This number will be assigned by WSDOT.
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4.
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a. Project Description — Enter the project name, total length of the project (in miles), and a brief description of the termini. Data
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entered here must be consistent with the name, length, and termini noted in the STIP and Project Prospectus
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Example: Name "Regal Road", (Length) 1.2 miles", Termini Smith Road to Main Street"
p (Name) g ( 9 )" (Termini)
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b. Description of Work — Enter a concise statement of the major items of work to be performed. Statement must be consistent
with the description of work noted in the STIP and Project Prospectus.
Example: "Overlay Regal Road; install curb, gutter, and sidewalk; illumination; and traffic signal at the intersection of Regal
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Road and Dakota Avenue."
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c. Project Agreement End Date — Enter the Project Agreement End Date (mm/dd/yy). This date is based on the project's Period
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of Performance (2 CFR 200.309).
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For Planning Only projects — WSDOT recommends agencies estimate the end of the project's period of performance and add
three years to determine the "Project Agreement End Date".
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For PE and RW — WSDOT recommends agencies estimate when the phase will be completed and add three years to
determine the "Project Agreement End Date". For Construction — WSDOT recommends agencies estimate when construction
will be completed and add three years to determine the "Project Agreement End Date".
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d. Proposed Advertisement Date — At construction authorization only, enter the proposed project advertisement
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date (mm/dd/yy).
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e. Claiming Indirect Cost Rate — Check the Yes box if the agency will be claiming indirect costs on the project. For those
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projects claiming indirect costs, supporting documentation that clearly shows the indirect cost rate being utilized must be
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provided with the local agency agreement. Indirect cost rate approval by your cognizant agency or through your agency's
self -certification and supporting documentation is required to be available for review by FHWA, WSDOT and /or State Auditor.
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Check the No box if the agency will not be claiming indirect costs on the project. See section 23.5 for additional guidance.
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4. Type of Work and Funding (Round all dollar amounts to the nearest whole dollar)
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a. PE — Lines a through d show Preliminary Engineering costs for the project by type of work (e.g., consultant, agency, state
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services, etc.).
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*Federal aid participation ratio for PE — enter ratio for PE lines with amounts in column 3.
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• Line a — Enter the estimated amount of agency work in columns 1 through 3.
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• Line b & c — Identify user, consultant, etc., and enter the estimated amounts in columns 1 through 3.
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• Line d — State Services. Every project must have funding for state services. Enter the estimated amounts in columns 1
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through 3.
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• Line e — Total of lines a + b + c + d.
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b. Right of Way — If a Right of Way phase is authorized on the project, the appropriate costs are shown in lines f through i.
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*Federal aid participation ratio for RW — enter ratio for RW lines with amounts in column 3.
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• Line f — Enter the estimated amount of agency work in columns 1 through 3.
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• Line g & h — Identify user, consultant, etc., and enter the estimated amounts in columns 1 through 3.
• Line i — State Services. Every project must have funding for state services. Enter the estimated amounts in columns 1
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through 3.
• Line j — Total of lines f + g + h + i.
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c. Construction — Lines k through p show construction costs for the project by type of work (e.g., contract, consultant, agency,
state services, etc.). Q
*Federal aid participation ratio for CN — enter ratio for CN lines with amounts in column 3.
DOT Form 140-039 Packet Pg. 416
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• Line k — Enter the estimated cost of the contract.
• Lines I, m, & n — Enter other estimated costs such as utility and construction contracts or non -federally matched
contract costs.
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• Line o — Enter estimated costs of all construction related agency work.
• Line p — State Services. Every project must have funding for state services. Enter the estimated amounts in columns 1
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through 3. N
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• Line q — Total Construction Cost Estimate. Total of lines k + I + m + n + o +p. o
d. Total Project Cost Estimate
• Line r — Total Cost Estimate of the Project. Total of lines e + j + q.
'Please remember, if the federal aid participation rate entered is not the maximum rate allowed by FHWA, then the
participation rate entered becomes the maximum rate allowed.
6. Signatures —An authorized official of the local agency signs the agreement and enters their title and date of signature (mm/dd/
yy). Note: Do NOT enter a date on the Date Executed line.
7. Method of Construction Financing — Choose the method of financing for the construction portion of the project.
a. Method "A" is used when the state administers the contract for the agency.
b. Method "B" is also used when the state administers the contract for the agency.
c. Method "C" is used with projects administered by the local agency. The agency will submit billings monthly through the
state to FHWA for all eligible costs. The billings must document the payment requests from the contractor. If state -force
work, such as audit and construction engineering, is to receive federal participation, it will be billed to the agency and FHWA
simultaneously at the indicated ratio. To show continuous progress agencies should bill monthly until agreement is closed.
8. Resolutions/Ordinances — When someone other than the County Executive/Chairman, County Commissioners/Mayor is
authorized to sign the agreement, the agency must submit to WSDOT with the agreement a copy of the Resolution/Ordinance
designating that individual.
Parties to the Agreement — Submit one originally signed agreement form to the Region Local Programs Engineer. It is
the responsibility of the local agency to submit an additional, originally signed agreement form if they need an executed
agreement for their files. The agreement is first executed by the agency official(s) authorized to enter into the agreement.
It is then transmitted to the state for execution by Local Programs. The agreement is dated at the time of final execution by
Local Programs.
DOT Form 140-039 Packet Pg. 417
Revised 04/2022
4.L
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4^4�
KENT
WASH NGTON
DATE: February 4, 2025
PUBLIC WORKS DEPARTMENT
Chad Bieren, P.E.
220 Fourth Avenue South
Kent, WA 98032
253-856-5600
TO: Kent City Council - Committee of the Whole
SUBJECT: 2024 PSRC Grant — South 196th Street Preservation Project -
Accept
MOTION: I move to accept grant funds in the amount of $1,500,000 from
the Puget Sound Regional Council for the South 196th Street Preservation
project, amend the budget, authorize the expenditure of funds, and
authorize the Mayor to sign all necessary agreements and other
documents, subject to final terms and conditions acceptable to the Public
Works Director and City Attorney.
SUMMARY: The Puget Sound Regional Council's Regional Transportation
Improvement Program released a call for projects in 2024. The program awards
projects with a focus on improving local and regional mobility.
The City received $1,500,000 for the South 196th Street Preservation project from
2000 ft west of 68th Avenue South (SR 181) to East Valley Highway (84th Avenue
South). The preservation projects would replace failing pavement segments,
overlay the street, and assess curb ramps and pedestrian push buttons to meet
ADA requirements.
The South 196th Street Preservation estimated at $3,800,000.
BUDGET IMPACT: Local match would be spent from Street Funds.
SUPPORTS STRATEGIC PLAN GOAL:
Evolving Infrastructure - Connecting people and places through strategic investments in physical
and technological infrastructure.
Thriving City - Creating safe neighborhoods, healthy people, vibrant commercial districts, and
inviting parks and recreation.
Sustainable Services - Providing quality services through responsible financial management,
economic growth, and partnerships.
Inclusive Community - Embracing our diversity and advancing equity through genuine community
engagement.
ATTACHMENTS:
Packet Pg. 418
4.L
1. 2024 Project Selection Award Letter (PDF)
2. Local Agency Agreement (PDF)
Packet Pg. 419
4.L.a
ft
Puget Sound Regional Council
1201 Third Avenue, Suite 500, Seattle, WA 98101-3055 1 psrc.org { 206--464-7090
December 18, 2024
The Honorable Dana Ralph
City of Kent
220 Fourth Ave. S
Kent, WA 98032
Dear Mayoor�alph:
Congratulations! I'm pleased to let you know that the City of Kent is receiving
$5,875,000 in PSRC funding for the following project(s):
AWARD
FUNDING
FUNDING
PROJECT
AMOUNT
SOURCE
DEADLINE
Meet Me on Meeker. Interurban
$2,500,000
FHWA
June 1, 2028
Trail to 6th Avenue S Connection
Earthworks Park to Downtown
$875,000
FHWA
June 1, 2027
Connection
South 212th Street Preservation
(59th PI S to 72nd Ave South)
$1,500,000
FHWA
June 1, 2027
S 196th Street Preservation
$1,500,000
FHWA
June 1, 2028
The PSRC Executive Board voted in October to award federal funds to priority projects
that will improve local and regional mobility. The projects are part of ❑ $9.5 billion
Regional Transportation Improvement Program over the next four years including
investments in transit, maintenance and preservation, bicycle and pedestrian facilities,
safety, and state and local roadways. Final approval by the state and federal funding
agencies is expected in early 2025.
Securing federal transportation funding for communities in the region is one of the
most important responsibilities of the Puget Sound Regional Council. Through our
merit -based project selection process, PSRC ensures that federal transportation funds
Packet Pg. 420
4.L.a
Mayor Ralph
❑ecember 18, 2024
Page 2
are put to work on priority projects that meet focal needs and help achieve the
region's long-term goals for transportation, economic development and growth
planning. This year the project selection criteria were adapted to incorporate
recommendations from PSRC's Equity Advisory Committee ensuring equity is included
in all transportation funding decisions. Kudos to you and your staff for securing this
funding. r
Sincerely,
Josh Brown
Executive Director, Puget Sound Regional Council
Enclosure
cc:
Chad Bieren, Public Works Director
Packet Pg. 421
4.L.b
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CAWashington State
iDepartment of Transportation
Agency City of Kent
Address 220 Fourth Ave S
Kent, WA 98032
Local Agency Agreement
CFDA No. 20.205 - Highway Planning and Construction
(Catalog of Federal Domestic Assistance)
Project No.
Agreement No.
For WSDOT Use
The Local Agency having complied, or hereby agreeing to comply, with the terms and conditions set forth in (1) Title 23, U.S. Code
Highways, (2) the regulations issued pursuant thereto, (3) 2 CFR Part 200, (4) 2 CFR Part 180 — certifying that the local agency is not
excluded from receiving Federal funds by a Federal suspension or debarment, (5) the policies and procedures promulgated by the
Washington State Department of Transportation, and (6) the federal aid project agreement entered into between the State and Federal
Government, relative to the above project, the Washington State Department of Transportation will authorize the Local Agency to
proceed on the project by a separate notification. Federal funds which are to be obligated for the project may not exceed the amount
shown herein on line r, column 3, without written authority by the State, subject to the approval of the Federal Highway Administration.
All project costs not reimbursed by the Federal Government shall be the responsibility of the Local Agency.
Project Description
Name S 196th Street Preservation Length 1.0 mi
Termini Approx. 50 Feet East of 68th Avenue (SR 181) to East Valley Highway (84th Ave S)
Description of Work
Grind and overlay the roadway, replace failing pavement sections, and make ADA curb ramps and pedestrian push button
improvements.
Project Agreement End Date 2032 Claiming Indirect Cost Rate
Proposed Advertisement Date Mar 2028 ❑ Yes ✓ No
Type of Work
Estimate
of Fundin
(1)
Estimated Total
Project Funds
(2)
Estimated Agency
Funds
(3)
Estimated Federal
Funds
PE a.Aciency
200,000.00
200,000.00
b. Other
Federal Aid c. Other
Participation d. State Services
Ratio for PE
e. Total PE Cost Estimate a+h+c+d
200,000.00
200,000.00
0.00
Right of Way f. Agency
.Other
Federal Aid h. Other
Participation
Ratio for RW i. State Services
. Total R/W Cost Estimate f+ +h+i
0.00
0.00
0.00
Construction k. Contract
3,000,000.00
1,500,000.00
1,500,000.00
I. Other Contract (non -participating)
m. Other Consultant - CM
Federal Aid n. Other Consultant -CM (non -part.)
Participation
o.Agency
400,000.00
400,000.00
Ratio for CN
p. State Services
q. Total CN Cost Estimate k+l+m+n+o+
3,400,000.00
1,900,000.00
1,500,000.00
r. Total Pro'ect Cost Estimate a+'+
3,600,000.00
2,100,000.00
1,500,000.00
Agency Official
By
Title
Agency Date
Washington State Department of Transportation
By
Director, Local Programs
Date Executed
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Revised 04/2022
Packet Pg. 422
4.L.b
Construction Method of Financing (Check Method Selected)
State Ad and Award
Method A - Advance Payment - Agency Share of total construction cost (based on contract award)
Method B - Withhold from gas tax the Agency's share of total construction coast (line 5, column 2) in
the amount of
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at $
Local Force or Local Ad and Award
per month for
months.
Method C - Agency cost incurred with partial reimbursement
The Local Agency further stipulates that pursuant to said Title 23, regulations and policies and
procedures, and as a condition to payment of the federal funds obligated, it accepts and will
comply with the applicable provisions set forth below. Adopted by official action on
, Resolution/Ordinance No.
Provisions
I. Scope of Work
The Agency shall provide all the work, labor, materials, and services necessary to perform the project which is described and set
forth in detail in the "Project Description" and "Type of Work."
When the State acts for and on behalf of the Agency, the State shall be deemed an agent of the Agency and shall perform the
services described and indicated in "Type of Work" on the face of this agreement, in accordance with plans and specifications as
proposed by the Agency and approved by the State and the Federal Highway Administration.
When the State acts for the Agency but is not subject to the right of control by the Agency, the State shall have the right to perform
the work subject to the ordinary procedures of the State and Federal Highway Administration.
II. Delegation of Authority
The State is willing to fulfill the responsibilities to the Federal Government by the administration of this project. The Agency agrees
that the State shall have the full authority to carry out this administration. The State shall review, process, and approve documents
required for federal aid reimbursement in accordance with federal requirements. If the State advertises and awards the contract, the
State will further act for the Agency in all matters concerning the project as requested by the Agency. If the Local Agency advertises and
awards the project, the State shall review the work to ensure conformity with the approved plans and specifications.
III. Project Administration
Certain types of work and services shall be provided by the State on this project as requested by the Agency and described in the
Type of Work above. In addition, the State will furnish qualified personnel for the supervision and inspection of the work in progress. On
Local Agency advertised and awarded projects, the supervision and inspection shall be limited to ensuring all work is in conformance
with approved plans, specifications, and federal aid requirements. The salary of such engineer or other supervisor and all other salaries
and costs incurred by State forces upon the project will be considered a cost thereof. All costs related to this project incurred by
employees of the State in the customary manner on highway payrolls and vouchers shall be charged as costs of the project.
IV. Availability of Records
All project records in support of all costs incurred and actual expenditures kept by the Agency are to be maintained in accordance
with local government accounting procedures prescribed by the Washington State Auditor's Office, the U.S. Department of
Transportation, and the Washington State Department of Transportation. The records shall be open to inspection by the State and
Federal Government at all reasonable times and shall be retained and made available for such inspection for a period of not less than
three years from the final payment of any federal aid funds to the Agency. Copies of said records shall be furnished to the State and/or
Federal Government upon request.
V. Compliance with Provisions
The Agency shall not incur any federal aid participation costs on any classification of work on this project until authorized in writing
by the State for each classification. The classifications of work for projects are:
1. Preliminary engineering.
2. Right of way acquisition.
3. Project construction.
Once written authorization is given, the Agency agrees to show continuous progress through monthly billings. Failure to show
continuous progress may result the Agency's project becoming inactive, as described in 23 CFR 630, and subject to de -obligation of
federal aid funds and/or agreement closure.
If right of way acquisition, or actual construction of the road for which preliminary engineering is undertaken is not started by the
close of the tenth fiscal year following the fiscal year in which preliminary engineering phase was authorized, the Agency will repay to
the State the sum or sums of federal funds paid to the Agency under the terms of this agreement (see Section IX).
If actual construction of the road for which right of way has been purchased is not started by the close of the tenth fiscal year
following the fiscal year in which the right of way phase was authorized, the Agency will repay to the State the sum or sums of federal
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Revised 04/2022
4.L.b
funds paid to the Agency under the terms of this agreement (see Section IX).
The Agency agrees that all stages of construction necessary to provide the initially planned complete facility within the limits of this
project will conform to at least the minimum values set by approved statewide design standards applicable to this class of highways,
even though such additional work is financed without federal aid participation.
The Agency agrees that on federal aid highway construction projects, the current federal aid regulations which apply to liquidated
damages relative to the basis of federal participation in the project cost shall be applicable in the event the contractor fails to complete
the contract within the contract time.
VI. Payment and Partial Reimbursement
The total cost of the project, including all review and engineering costs and other expenses of the State, is to be paid by the Agency
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and by the Federal Government. Federal funding shall be in accordance with the Federal Transportation Act, as amended, 2 CFR Part
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200. The State shall not be ultimately responsible for any of the costs of the project. The Agency shall be ultimately responsible for all
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costs associated with the project which are not reimbursed by the Federal Government. Nothing in this agreement shall be construed as
a promise by the State as to the amount or nature of federal participation in this project.
d
The Agency shall bill the state for federal aid project costs incurred in conformity with applicable federal and state laws. The agency
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shall minimize the time elapsed between receipt of federal aid funds and subsequent payment of incurred costs. Expenditures by the
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Local Agency for maintenance, general administration, supervision, and other overhead shall not be eligible for federal participation
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unless a current indirect cost plan has been prepared in accordance with the regulations outlined in 2 CFR Part 200 - Uniform Admin
Requirements, Cost Principles and Audit Requirements for Federal Awards, and retained for audit.
The State will pay for State incurred costs on the project. Following payment, the State shall bill the Federal Government for
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reimbursement of those costs eligible for federal participation to the extent that such costs are attributable and properly allocable to
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this project. The State shall bill the Agency for that portion of State costs which were not reimbursed by the Federal Government (see
Section IX).
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1. Project Construction Costs
Project construction financing will be accomplished by one of the three methods as indicated in this agreement.
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Method A — The Agency will place with the State, within (20) days after the execution of the construction contract, an advance in the
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amount of the Agency's share of the total construction cost based on the contract award. The State will notify the Agency of the exact
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amount to be deposited with the State. The State will pay all costs incurred under the contract upon presentation of progress billings
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from the contractor. Following such payments, the State will submit a billing to the Federal Government for the federal aid participation
share of the cost. When the project is substantially completed and final actual costs of the project can be determined, the State will
present the Agency with a final billing showing the amount due the State or the amount due the Agency. This billing will be cleared by
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either a payment from the Agency to the State or by a refund from the State to the Agency.
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Method B — The Agency's share of the total construction cost as shown on the face of this agreement shall be withheld from its
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monthly fuel tax allotments. The face of this agreement establishes the months in which the withholding shall take place and the exact
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amount to be withheld each month. The extent of withholding will be confirmed by letter from the State at the time of contract award.
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Upon receipt of progress billings from the contractor, the State will submit such billings to the Federal Government for payment of its
participating portion of such billings.
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Method C — The Agency may submit vouchers to the State in the format prescribed by the State, in duplicate, not more than once
per month for those costs eligible for Federal participation to the extent that such costs are directly attributable and properly allocable
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to this project. Expenditures by the Local Agency for maintenance, general administration, supervision, and other overhead shall not be
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eligible for Federal participation unless claimed under a previously approved indirect cost plan.
The State shall reimburse the Agency for the Federal share of eligible project costs up to the amount shown on the face of this
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agreement. At the time of audit, the Agency will provide documentation of all costs incurred on the project. The State shall bill the
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Agency for all costs incurred by the State relative to the project. The State shall also bill the Agency for the federal funds paid by the
State to the Agency for project costs which are subsequently determined to be ineligible for federal participation (see Section IX).
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VII. Audit of Federal Consultant Contracts
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The Agency, if services of a consultant are required, shall be responsible for audit of the consultant's records to determine eligible
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federal aid costs on the project. The report of said audit shall be in the Agency's files and made available to the State and the Federal
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Government.
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An audit shall be conducted by the WSDOT Internal Audit Office in accordance with generally accepted governmental auditing
standards as issued by the United States General Accounting Office by the Comptroller General of the United States; WSDOT Manual
M 27-50, Consultant Authorization, Selection, and Agreement Administration; memoranda of understanding between WSDOT and
FHWA; and 2 CFR Part 200.501 - Audit Requirements.
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If upon audit it is found that overpayment or participation of federal money in ineligible items of cost has occurred, the Agency shall
reimburse the State for the amount of such overpayment or excess participation (see Section IX).
Vill. Single Audit Act
The Agency, as a subrecipient of federal funds, shall adhere to the federal regulations outlined in 2 CFR Part 200.501 as well as all
applicable federal and state statutes and regulations. A subrecipient who expends $750,000 or more in federal awards from all sources
during a given fiscal year shall have a single or program -specific audit performed for that year in accordance with the provisions of 2
CFR Part 200.501. Upon conclusion of the audit, the Agency shall be responsible for ensuring that a copy of the report is transmitted
DOT Form 140-039 Packet Pg. 424
Revised 04/2022
4.L.b
promptly to the State.
IX. Payment of Billing
The Agency agrees that if payment or arrangement for payment of any of the State's billing relative to the project (e.g., State force
work, project cancellation, overpayment, cost ineligible for federal participation, etc.) is not made to the State within 45 days after
the Agency has been billed, the State shall effect reimbursement of the total sum due from the regular monthly fuel tax allotments to
the Agency from the Motor Vehicle Fund. No additional Federal project funding will be approved until full payment is received unless
otherwise directed by the Director, Local Programs.
Project Agreement End Date - This date is based on your projects Period of Performance (2 CFR Part 200.309).
Any costs incurred after the Project Agreement End Date are NOT eligible for federal reimbursement. All eligible costs incurred prior
to the Project Agreement End Date must be submitted for reimbursement within 60 days after the Project Agreement End Date or they
become ineligible for federal reimbursement.
X. Traffic Control, Signing, Marking, and Roadway Maintenance
The Agency will not permit any changes to be made in the provisions for parking regulations and traffic control on this project
without prior approval of the State and Federal Highway Administration. The Agency will not install or permit to be installed any signs,
signals, or markings not in conformance with the standards approved by the Federal Highway Administration and MUTCD. The Agency
will, at its own expense, maintain the improvement covered by this agreement.
XI. Indemnity
The Agency shall hold the Federal Government and the State harmless from and shall process and defend at its own expense
all claims, demands, or suits, whether at law or equity brought against the Agency, State, or Federal Government, arising from the
Agency's execution, performance, or failure to perform any of the provisions of this agreement, or of any other agreement or contract
connected with this agreement, or arising by reason of the participation of the State or Federal Government in the project, PROVIDED,
nothing herein shall require the Agency to reimburse the State or the Federal Government for damages arising out of bodily injury to
persons or damage to property caused by or resulting from the sole negligence of the Federal Government or the State.
XII. Nondiscrimination Provision
No liability shall attach to the State or Federal Government except as expressly provided herein.
The Agency shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of any USDOT-
assisted contract and/or agreement or in the administration of its DBE program or the requirements of 49 CFR Part 26. The Agency
shall take all necessary and reasonable steps under 49 CFR Part 26 to ensure nondiscrimination in the award and administration of
USDOT-assisted contracts and agreements. The WSDOT's DBE program, as required by 49 CFR Part 26 and as approved by USDOT,
is incorporated by reference in this agreement. Implementation of this program is a legal obligation and failure to carry out its terms
shall be treated as a violation of this agreement. Upon notification to the Agency of its failure to carry out its approved program, the
Department may impose sanctions as provided for under Part 26 and may, in appropriate cases, refer the matter for enforcement under
18 U.S.C. 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31 U.S. C. 3801 et seq.).
The Agency hereby agrees that it will incorporate or cause to be incorporated into any contract for construction work, or modification
thereof, as defined in the rules and regulations of the Secretary of Labor in 41 CFR Chapter 60, which is paid for in whole or in part with
funds obtained from the Federal Government or borrowed on the credit of the Federal Government pursuant to a grant, contract, loan,
insurance, or guarantee or understanding pursuant to any federal program involving such grant, contract, loan, insurance, or guarantee,
the required contract provisions for Federal -Aid Contracts (FHWA 1273), located in Chapter 44 of the Local Agency Guidelines.
The Agency further agrees that it will be bound by the above equal opportunity clause with respect to its own employment
practices when it participates in federally assisted construction work: Provided, that if the applicant so participating is a State or Local
Government, the above equal opportunity clause is not applicable to any agency, instrumentality, or subdivision of such government
which does not participate in work on or under the contract.
The Agency also agrees:
(1) To assist and cooperate actively with the State in obtaining the compliance of contractors and subcontractors with the equal
opportunity clause and rules, regulations, and relevant orders of the Secretary of Labor.
(2) To furnish the State such information as it may require for the supervision of such compliance and that it will otherwise assist the
State in the discharge of its primary responsibility for securing compliance.
(3) To refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with
a contractor debarred from, or who has not demonstrated eligibility for, government contracts and federally assisted construction
contracts pursuant to the Executive Order.
(4) To carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors
and subcontractors by the State, Federal Highway Administration, or the Secretary of Labor pursuant to Part II, subpart D of the
Executive Order.
In addition, the Agency agrees that if it fails or refuses to comply with these undertakings, the State may take any or all of the
following actions:
(a) Cancel, terminate, or suspend this agreement in whole or in part;
(b) Refrain from extending any further assistance to the Agency under the program with respect to which the failure or refusal
occurred until satisfactory assurance of future compliance has been received from the Agency; and
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DOT Form 140-039 Packet Pg. 425
Revised 04/2022
4.L.b
(c) Refer the case to the Department of Justice for appropriate legal proceedings.
XIII. Liquidated Damages
The Agency hereby agrees that the liquidated damages provisions of 23 CFR Part 635, Subpart 127, as supplemented, relative to
the amount of Federal participation in the project cost, shall be applicable in the event the contractor fails to complete the contract within
the contract time. Failure to include liquidated damages provision will not relieve the Agency from reduction of federal participation in
accordance with this paragraph.
XIV. Termination for Public Convenience
The Secretary of the Washington State Department of Transportation may terminate the contract in whole, or from time to time in
part, whenever:
(1) The requisite federal funding becomes unavailable through failure of appropriation or otherwise.
(2) The contractor is prevented from proceeding with the work as a direct result of an Executive Order of the President with
respect to the prosecution of war or in the interest of national defense, or an Executive Order of the President or Governor of
the State with respect to the preservation of energy resources.
(3) The contractor is prevented from proceeding with the work by reason of a preliminary, special, or permanent restraining
order of a court of competent jurisdiction where the issuance of such order is primarily caused by the acts or omissions of
persons or agencies other than the contractor.
(4) The Secretary is notified by the Federal Highway Administration that the project is inactive.
(5) The Secretary determines that such termination is in the best interests of the State.
XV. Venue for Claims and/or Causes of Action
For the convenience of the parties to this contract, it is agreed that any claims and/or causes of action which the Local Agency
has against the State of Washington, growing out of this contract or the project with which it is concerned, shall be brought only in the
Superior Court for Thurston County.
XVI. Certification Regarding the Restrictions of the Use of Federal Funds for Lobbying
The approving authority certifies, to the best of his or her knowledge and belief, that:
(1) No federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or
attempting to influence an officer or employee of any federal agency, a member of Congress, an officer or employee of Congress, or
an employee of a member of Congress in connection with the awarding of any federal contract, the making of any federal grant, the
making of any federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment,
or modification of any federal contract, grant, loan, or cooperative agreement.
(2) If any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to
influence an officer or employee of any federal agency, a member of Congress, an officer or employee of Congress, or an employee
of a member of Congress in connection with this federal contract, grant, loan, or cooperative agreement, the undersigned shall
complete and submit the Standard Form - LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions.
(3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at
all tiers (including subgrants, and contracts and subcontracts under grants, subgrants, loans, and cooperative agreements) which
exceed $100,000, and that all such subrecipients shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into.
Submission of this certification as a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S.
Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such failure.
XVII. Assurances
Local agencies receiving Federal funding from the USDOT or its operating administrations (i.e., Federal Highway Administration,
Federal Transit Administration, Federal Aviation Administration) are required to submit a written policy statement, signed by the Agency
Executive and addressed to the State, documenting that all programs, activities, and services will be conducted in compliance with
Section 504 and the Americans with Disabilities Act (ADA).
Additional Provisions
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DOT Form 140-039 Packet Pg. 426
Revised 04/2022
4.L.b
Instructions
1. Agency Name and Billing Address — Enter the Agency of primary interest which will become a party to the agreement.
2. Project Number — Leave blank. This number will be assigned by WSDOT.
3. Agreement Number — Leave blank. This number will be assigned by WSDOT.
a.
Project Description — Enter the project name, total length of the project (in miles), and a brief description of the termini. Data
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entered here must be consistent with the name, length, and termini noted in the STIP and Project Prospectus
Example: (Name) "Regal Road", (Length) 1.2 miles", (Termini) "Smith Road to Main Street"
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b.
Description of Work — Enter a concise statement of the major items of work to be performed. Statement must be consistent
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with the description of work noted in the STIP and Project Prospectus.
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Example: "Overlay Regal Road; install curb, gutter, and sidewalk; illumination; and traffic signal at the intersection of Regal
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Road and Dakota Avenue."
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c.
Project Agreement End Date — Enter the Project Agreement End Date (mm/dd/yy). This date is based on the project's Period
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of Performance (2 CFR 200.309).
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For Planning Only projects — WSDOT recommends agencies estimate the end of the project's period of performance and add
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three years to determine the "Project Agreement End Date".
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For PE and RW — WSDOT recommends agencies estimate when the phase will be completed and add three years to
v)
determine the "Project Agreement End Date". For Construction — WSDOT recommends agencies estimate when construction
will be completed and add three years to determine the "Project Agreement End Date".
rn
d.
Proposed Advertisement Date — At construction authorization only, enter the proposed project advertisement
cn
date (mm/dd/yy).
i
e.
Claiming Indirect Cost Rate — Check the Yes box if the agency will be claiming indirect costs on the project. For those
c
projects claiming indirect costs, supporting documentation that clearly shows the indirect cost rate being utilized must be
provided with the local agency agreement. Indirect cost rate approval by your cognizant agency or through your agency's
W
self -certification and supporting documentation is required to be available for review by FHWA, WSDOT and /or State Auditor.
a-
Check the No box if the agency will not be claiming indirect costs on the project. See section 23.5 for additional guidance.
N
4. Type
of Work and Funding (Round all dollar amounts to the nearest whole dollar)
0
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a.
PE — Lines a through d show Preliminary Engineering costs for the project by type of work (e.g., consultant, agency, state
N
services, etc.).
v
*Federal aid participation ratio for PE — enter ratio for PE lines with amounts in column 3.
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• Line a — Enter the estimated amount of agency work in columns 1 through 3.
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• Line b & c — Identify user, consultant, etc., and enter the estimated amounts in columns 1 through 3.
Q
• Line d — State Services. Every project must have funding for state services. Enter the estimated amounts in columns 1
through 3.
y
• Line e — Total of lines a + b + c + d.
am
Q
b.
Right of Way — If a Right of Way phase is authorized on the project, the appropriate costs are shown in lines f through i.
p
J
*Federal aid participation ratio for RW — enter ratio for RW lines with amounts in column 3.
• Line f — Enter the estimated amount of agency work in columns 1 through 3.
a�
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• Line g & h — Identify user, consultant, etc., and enter the estimated amounts in columns 1 through 3.
t
Q
• Line i — State Services. Every project must have funding for state services. Enter the estimated amounts in columns 1
through 3.
• Line j — Total of lines f + g + h + i.
c. Construction — Lines k through p show construction costs for the project by type of work (e.g., contract, consultant, agency,
state services, etc.).
*Federal aid participation ratio for CN — enter ratio for CN lines with amounts in column 3.
DOT Form 140-039 Packet Pg. 427
Revised 04/2022
4.L.b
• Line k — Enter the estimated cost of the contract.
• Lines I, m, & n — Enter other estimated costs such as utility and construction contracts or non -federally matched
contract costs.
• Line o — Enter estimated costs of all construction related agency work.
• Line p — State Services. Every project must have funding for state services. Enter the estimated amounts in columns 1
through 3.
• Line q — Total Construction Cost Estimate. Total of lines k + I + m + n + o +p.
d. Total Project Cost Estimate
• Line r — Total Cost Estimate of the Project. Total of lines e + j + q.
'Please remember, if the federal aid participation rate entered is not the maximum rate allowed by FHWA, then the
participation rate entered becomes the maximum rate allowed.
6. Signatures —An authorized official of the local agency signs the agreement and enters their title and date of signature (mm/dd/
yy). Note: Do NOT enter a date on the Date Executed line.
7. Method of Construction Financing — Choose the method of financing for the construction portion of the project.
a. Method "A" is used when the state administers the contract for the agency.
b. Method "B" is also used when the state administers the contract for the agency.
c. Method "C" is used with projects administered by the local agency. The agency will submit billings monthly through the
state to FHWA for all eligible costs. The billings must document the payment requests from the contractor. If state -force
work, such as audit and construction engineering, is to receive federal participation, it will be billed to the agency and FHWA
simultaneously at the indicated ratio. To show continuous progress agencies should bill monthly until agreement is closed.
8. Resolutions/Ordinances — When someone other than the County Executive/Chairman, County Commissioners/Mayor is
authorized to sign the agreement, the agency must submit to WSDOT with the agreement a copy of the Resolution/Ordinance
designating that individual.
Parties to the Agreement — Submit one originally signed agreement form to the Region Local Programs Engineer. It is
the responsibility of the local agency to submit an additional, originally signed agreement form if they need an executed
agreement for their files. The agreement is first executed by the agency official(s) authorized to enter into the agreement.
It is then transmitted to the state for execution by Local Programs. The agreement is dated at the time of final execution by
Local Programs.
DOT Form 140-039 Packet Pg. 428
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4.M
•
KENT
WASHINGTON
DATE: February 4, 2025
PUBLIC WORKS DEPARTMENT
Chad Bieren, P.E.
220 Fourth Avenue South
Kent, WA 98032
253-856-5600
TO: Kent City Council - Committee of the Whole
SUBJECT: 2024 PSRC Grant - Earthworks Park to Downtown Connection
— Accept
MOTION: I move to accept grant funds in the amount of $375,000 from the
Puget Sound Regional Council for Earthworks Park to Downtown
Connection, amend the budget, authorize the expenditure of funds, and
authorize the Mayor to sign all necessary agreements and other
documents, subject to final terms and conditions acceptable to the Public
Works Director and City Attorney.
SUMMARY: The Puget Sound Regional Council's Regional Transportation
Improvement Program released a call for projects in 2024. The program awards
projects with a focus on improving local and regional mobility.
The City received $375,000 for Earthworks Park to Downtown Connection. This
project involves the creation of a plan for, and complete preliminary design of, a
multimodal connection between Earthworks Park and Downtown with an estimated
cost of $430,000.
BUDGET IMPACT: Local match would be spent from Street Funds and/or
Transportation Improvement Funds.
SUPPORTS STRATEGIC PLAN GOAL:
Evolving Infrastructure - Connecting people and places through strategic investments in physical
and technological infrastructure.
Thriving City - Creating safe neighborhoods, healthy people, vibrant commercial districts, and
inviting parks and recreation.
Sustainable Services - Providing quality services through responsible financial management,
economic growth, and partnerships.
Inclusive Community - Embracing our diversity and advancing equity through genuine community
engagement.
ATTACHMENTS:
1. Kent 2024 Project Selection Award Letter (PDF)
2. Local Agency Agreement (PDF)
Packet Pg. 429
4.M.a
ft
Puget Sound Regional Council
1201 Third Avenue, Suite 500, Seattle, WA 98101-3055 1 psrc.org { 206--464-7090
December 18, 2024
The Honorable Dana Ralph
City of Kent
220 Fourth Ave. S
Kent, WA 98032
Dear Mayoor�alph:
Congratulations! I'm pleased to let you know that the City of Kent is receiving
$5,875,000 in PSRC funding for the following project(s):
AWARD
FUNDING
FUNDING
PROJECT
AMOUNT
SOURCE
DEADLINE
Meet Me on Meeker. Interurban
$2,500,000
FHWA
June 1, 2028
Trail to 6th Avenue S Connection
Earthworks Park to Downtown
$875,000
FHWA
June 1, 2027
Connection
South 212th Street Preservation
(59th PI S to 72nd Ave South)
$1,500,000
FHWA
June 1, 2027
S 196th Street Preservation
$1,500,000
FHWA
June 1, 2028
The PSRC Executive Board voted in October to award federal funds to priority projects
that will improve local and regional mobility. The projects are part of ❑ $9.5 billion
Regional Transportation Improvement Program over the next four years including
investments in transit, maintenance and preservation, bicycle and pedestrian facilities,
safety, and state and local roadways. Final approval by the state and federal funding
agencies is expected in early 2025.
Securing federal transportation funding for communities in the region is one of the
most important responsibilities of the Puget Sound Regional Council. Through our
merit -based project selection process, PSRC ensures that federal transportation funds
Packet Pg. 430
4.M.a
Mayor Ralph
❑ecember 18, 2024
Page 2
are put to work on priority projects that meet focal needs and help achieve the
region's long-term goals for transportation, economic development and growth
planning. This year the project selection criteria were adapted to incorporate
recommendations from PSRC's Equity Advisory Committee ensuring equity is included
in all transportation funding decisions. Kudos to you and your staff for securing this
funding. r
Sincerely,
Josh Brown
Executive Director, Puget Sound Regional Council
Enclosure
cc:
Chad Bieren, Public Works Director
Packet Pg. 431
4.M.b
Aft
CAWashington State
iDepartment of Transportation
Agency City of Kent
Address 220 Fourth Ave S
Kent, WA 98032
Local Agency Agreement
CFDA No. 20.205 - Highway Planning and Construction
(Catalog of Federal Domestic Assistance)
Project No.
Agreement No.
For WSDOT Use
The Local Agency having complied, or hereby agreeing to comply, with the terms and conditions set forth in (1) Title 23, U.S. Code
Highways, (2) the regulations issued pursuant thereto, (3) 2 CFR Part 200, (4) 2 CFR Part 180 — certifying that the local agency is not
excluded from receiving Federal funds by a Federal suspension or debarment, (5) the policies and procedures promulgated by the
Washington State Department of Transportation, and (6) the federal aid project agreement entered into between the State and Federal
Government, relative to the above project, the Washington State Department of Transportation will authorize the Local Agency to
proceed on the project by a separate notification. Federal funds which are to be obligated for the project may not exceed the amount
shown herein on line r, column 3, without written authority by the State, subject to the approval of the Federal Highway Administration.
All project costs not reimbursed by the Federal Government shall be the responsibility of the Local Agency.
Project Description
Name Earthworks Park to Downtown Connection
Termini From 6th Ave S to E Titus Street
Description of Work
Length 0.8 mi
Create a plan to improve multimodal connection between Earthworks Park and Downtown. Plan will include project development,
equitable community engagement, feasibility and alternatives analysis to inform a recommended design.
Project Agreement End Date 2029 Claiming Indirect Cost Rate
Proposed Advertisement Date NSA ❑ Yes V No
Estimate
of Fundin
(1)
(2)
(3)
Type of Work
Estimated Total
Estimated Agency
Estimated Federal
Project Funds
Funds
Funds
PE a.Aciency
81,000.00
14,000.00
67,000.00
b. Other Consultant
360,000.00
60,000.00
300,000.00
Federal Aid c. Other Consultant
Participation d. State Services
10,000.00
2,000.00
8,000.00
Ratio for PE
e. Total PE Cost Estimate a+h+c+d
451,000.00
76,000.00
375,000.00
Right of Way f. Agency
.Other
Federal Aid
h. Other
Participation
Ratio for RW i. State Services
. Total R/W Cost Estimate f+ +h+i
0.00
0.00
0.00
Construction k. Contract
1. Other
m. Other
Federal Aid n. Other
Participation o. A enc
Ratio for CN
p. State Services
q. Total CN Cost Estimate k+l+m+n+o+
0.00
0.00
0.00
r. Total Pro'ect Cost Estimate a+'+
451,000.00
76,000.00
375,000.00
Agency Official
By
Title
Agency Date
Washington State Department of Transportation
By
Director, Local Programs
Date Executed
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Construction Method of Financing (Check Method Selected)
State Ad and Award
Method A - Advance Payment - Agency Share of total construction cost (based on contract award)
Method B - Withhold from gas tax the Agency's share of total construction coast (line 5, column 2) in
the amount of
$ at $ per month for months.
Local Force or Local Ad and Award
Method C - Agency cost incurred with partial reimbursement
The Local Agency further stipulates that pursuant to said Title 23, regulations and policies and
procedures, and as a condition to payment of the federal funds obligated, it accepts and will
comply with the applicable provisions set forth below. Adopted by official action on
, Resolution/Ordinance No.
Provisions
I. Scope of Work
The Agency shall provide all the work, labor, materials, and services necessary to perform the project which is described and set
forth in detail in the "Project Description" and "Type of Work."
When the State acts for and on behalf of the Agency, the State shall be deemed an agent of the Agency and shall perform the
services described and indicated in "Type of Work" on the face of this agreement, in accordance with plans and specifications as
proposed by the Agency and approved by the State and the Federal Highway Administration.
When the State acts for the Agency but is not subject to the right of control by the Agency, the State shall have the right to perform
the work subject to the ordinary procedures of the State and Federal Highway Administration.
II. Delegation of Authority
The State is willing to fulfill the responsibilities to the Federal Government by the administration of this project. The Agency agrees
that the State shall have the full authority to carry out this administration. The State shall review, process, and approve documents
required for federal aid reimbursement in accordance with federal requirements. If the State advertises and awards the contract, the
State will further act for the Agency in all matters concerning the project as requested by the Agency. If the Local Agency advertises and
awards the project, the State shall review the work to ensure conformity with the approved plans and specifications.
III. Project Administration
Certain types of work and services shall be provided by the State on this project as requested by the Agency and described in the
Type of Work above. In addition, the State will furnish qualified personnel for the supervision and inspection of the work in progress. On
Local Agency advertised and awarded projects, the supervision and inspection shall be limited to ensuring all work is in conformance
with approved plans, specifications, and federal aid requirements. The salary of such engineer or other supervisor and all other salaries
and costs incurred by State forces upon the project will be considered a cost thereof. All costs related to this project incurred by
employees of the State in the customary manner on highway payrolls and vouchers shall be charged as costs of the project.
IV. Availability of Records
All project records in support of all costs incurred and actual expenditures kept by the Agency are to be maintained in accordance
with local government accounting procedures prescribed by the Washington State Auditor's Office, the U.S. Department of
Transportation, and the Washington State Department of Transportation. The records shall be open to inspection by the State and
Federal Government at all reasonable times and shall be retained and made available for such inspection for a period of not less than
three years from the final payment of any federal aid funds to the Agency. Copies of said records shall be furnished to the State and/or
Federal Government upon request.
V. Compliance with Provisions
The Agency shall not incur any federal aid participation costs on any classification of work on this project until authorized in writing
by the State for each classification. The classifications of work for projects are:
1. Preliminary engineering.
2. Right of way acquisition.
3. Project construction.
Once written authorization is given, the Agency agrees to show continuous progress through monthly billings. Failure to show
continuous progress may result the Agency's project becoming inactive, as described in 23 CFR 630, and subject to de -obligation of
federal aid funds and/or agreement closure.
If right of way acquisition, or actual construction of the road for which preliminary engineering is undertaken is not started by the
close of the tenth fiscal year following the fiscal year in which preliminary engineering phase was authorized, the Agency will repay to
the State the sum or sums of federal funds paid to the Agency under the terms of this agreement (see Section IX).
If actual construction of the road for which right of way has been purchased is not started by the close of the tenth fiscal year
following the fiscal year in which the right of way phase was authorized, the Agency will repay to the State the sum or sums of federal
DOT Form 140-039 Packet Pg. 433
Revised 04/2022
4.M.b
funds paid to the Agency under the terms of this agreement (see Section IX).
The Agency agrees that all stages of construction necessary to provide the initially planned complete facility within the limits of this
project will conform to at least the minimum values set by approved statewide design standards applicable to this class of highways,
even though such additional work is financed without federal aid participation.
The Agency agrees that on federal aid highway construction projects, the current federal aid regulations which apply to liquidated
damages relative to the basis of federal participation in the project cost shall be applicable in the event the contractor fails to complete
the contract within the contract time.
VI. Payment and Partial Reimbursement
The total cost of the project, including all review and engineering costs and other expenses of the State, is to be paid by the Agency
and by the Federal Government. Federal funding shall be in accordance with the Federal Transportation Act, as amended, 2 CFR Part
200. The State shall not be ultimately responsible for any of the costs of the project. The Agency shall be ultimately responsible for all
costs associated with the project which are not reimbursed by the Federal Government. Nothing in this agreement shall be construed as
a promise by the State as to the amount or nature of federal participation in this project.
The Agency shall bill the state for federal aid project costs incurred in conformity with applicable federal and state laws. The agency
shall minimize the time elapsed between receipt of federal aid funds and subsequent payment of incurred costs. Expenditures by the
Local Agency for maintenance, general administration, supervision, and other overhead shall not be eligible for federal participation
unless a current indirect cost plan has been prepared in accordance with the regulations outlined in 2 CFR Part 200 - Uniform Admin
Requirements, Cost Principles and Audit Requirements for Federal Awards, and retained for audit.
The State will pay for State incurred costs on the project. Following payment, the State shall bill the Federal Government for
reimbursement of those costs eligible for federal participation to the extent that such costs are attributable and properly allocable to
this project. The State shall bill the Agency for that portion of State costs which were not reimbursed by the Federal Government (see
Section IX).
1. Project Construction Costs
Project construction financing will be accomplished by one of the three methods as indicated in this agreement.
Method A — The Agency will place with the State, within (20) days after the execution of the construction contract, an advance in the
amount of the Agency's share of the total construction cost based on the contract award. The State will notify the Agency of the exact
amount to be deposited with the State. The State will pay all costs incurred under the contract upon presentation of progress billings
from the contractor. Following such payments, the State will submit a billing to the Federal Government for the federal aid participation
share of the cost. When the project is substantially completed and final actual costs of the project can be determined, the State will
present the Agency with a final billing showing the amount due the State or the amount due the Agency. This billing will be cleared by
either a payment from the Agency to the State or by a refund from the State to the Agency.
Method B — The Agency's share of the total construction cost as shown on the face of this agreement shall be withheld from its
monthly fuel tax allotments. The face of this agreement establishes the months in which the withholding shall take place and the exact
amount to be withheld each month. The extent of withholding will be confirmed by letter from the State at the time of contract award.
Upon receipt of progress billings from the contractor, the State will submit such billings to the Federal Government for payment of its
participating portion of such billings.
Method C — The Agency may submit vouchers to the State in the format prescribed by the State, in duplicate, not more than once
per month for those costs eligible for Federal participation to the extent that such costs are directly attributable and properly allocable
to this project. Expenditures by the Local Agency for maintenance, general administration, supervision, and other overhead shall not be
eligible for Federal participation unless claimed under a previously approved indirect cost plan.
The State shall reimburse the Agency for the Federal share of eligible project costs up to the amount shown on the face of this
agreement. At the time of audit, the Agency will provide documentation of all costs incurred on the project. The State shall bill the
Agency for all costs incurred by the State relative to the project. The State shall also bill the Agency for the federal funds paid by the
State to the Agency for project costs which are subsequently determined to be ineligible for federal participation (see Section IX).
VII. Audit of Federal Consultant Contracts
The Agency, if services of a consultant are required, shall be responsible for audit of the consultant's records to determine eligible
federal aid costs on the project. The report of said audit shall be in the Agency's files and made available to the State and the Federal
Government.
An audit shall be conducted by the WSDOT Internal Audit Office in accordance with generally accepted governmental auditing
standards as issued by the United States General Accounting Office by the Comptroller General of the United States; WSDOT Manual
M 27-50, Consultant Authorization, Selection, and Agreement Administration; memoranda of understanding between WSDOT and
FHWA; and 2 CFR Part 200.501 - Audit Requirements.
If upon audit it is found that overpayment or participation of federal money in ineligible items of cost has occurred, the Agency shall
reimburse the State for the amount of such overpayment or excess participation (see Section IX).
Vill. Single Audit Act
The Agency, as a subrecipient of federal funds, shall adhere to the federal regulations outlined in 2 CFR Part 200.501 as well as all
applicable federal and state statutes and regulations. A subrecipient who expends $750,000 or more in federal awards from all sources
during a given fiscal year shall have a single or program -specific audit performed for that year in accordance with the provisions of 2
CFR Part 200.501. Upon conclusion of the audit, the Agency shall be responsible for ensuring that a copy of the report is transmitted
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promptly to the State.
IX. Payment of Billing
The Agency agrees that if payment or arrangement for payment of any of the State's billing relative to the project (e.g., State force
work, project cancellation, overpayment, cost ineligible for federal participation, etc.) is not made to the State within 45 days after
the Agency has been billed, the State shall effect reimbursement of the total sum due from the regular monthly fuel tax allotments to
the Agency from the Motor Vehicle Fund. No additional Federal project funding will be approved until full payment is received unless
otherwise directed by the Director, Local Programs.
Project Agreement End Date - This date is based on your projects Period of Performance (2 CFR Part 200.309).
Any costs incurred after the Project Agreement End Date are NOT eligible for federal reimbursement. All eligible costs incurred prior
to the Project Agreement End Date must be submitted for reimbursement within 60 days after the Project Agreement End Date or they
become ineligible for federal reimbursement.
X. Traffic Control, Signing, Marking, and Roadway Maintenance
The Agency will not permit any changes to be made in the provisions for parking regulations and traffic control on this project
without prior approval of the State and Federal Highway Administration. The Agency will not install or permit to be installed any signs,
signals, or markings not in conformance with the standards approved by the Federal Highway Administration and MUTCD. The Agency
will, at its own expense, maintain the improvement covered by this agreement.
XI. Indemnity
The Agency shall hold the Federal Government and the State harmless from and shall process and defend at its own expense
all claims, demands, or suits, whether at law or equity brought against the Agency, State, or Federal Government, arising from the
Agency's execution, performance, or failure to perform any of the provisions of this agreement, or of any other agreement or contract
connected with this agreement, or arising by reason of the participation of the State or Federal Government in the project, PROVIDED,
nothing herein shall require the Agency to reimburse the State or the Federal Government for damages arising out of bodily injury to
persons or damage to property caused by or resulting from the sole negligence of the Federal Government or the State.
XII. Nondiscrimination Provision
No liability shall attach to the State or Federal Government except as expressly provided herein.
The Agency shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of any USDOT-
assisted contract and/or agreement or in the administration of its DBE program or the requirements of 49 CFR Part 26. The Agency
shall take all necessary and reasonable steps under 49 CFR Part 26 to ensure nondiscrimination in the award and administration of
USDOT-assisted contracts and agreements. The WSDOT's DBE program, as required by 49 CFR Part 26 and as approved by USDOT,
is incorporated by reference in this agreement. Implementation of this program is a legal obligation and failure to carry out its terms
shall be treated as a violation of this agreement. Upon notification to the Agency of its failure to carry out its approved program, the
Department may impose sanctions as provided for under Part 26 and may, in appropriate cases, refer the matter for enforcement under
18 U.S.C. 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31 U.S. C. 3801 et seq.).
The Agency hereby agrees that it will incorporate or cause to be incorporated into any contract for construction work, or modification
thereof, as defined in the rules and regulations of the Secretary of Labor in 41 CFR Chapter 60, which is paid for in whole or in part with
funds obtained from the Federal Government or borrowed on the credit of the Federal Government pursuant to a grant, contract, loan,
insurance, or guarantee or understanding pursuant to any federal program involving such grant, contract, loan, insurance, or guarantee,
the required contract provisions for Federal -Aid Contracts (FHWA 1273), located in Chapter 44 of the Local Agency Guidelines.
The Agency further agrees that it will be bound by the above equal opportunity clause with respect to its own employment
practices when it participates in federally assisted construction work: Provided, that if the applicant so participating is a State or Local
Government, the above equal opportunity clause is not applicable to any agency, instrumentality, or subdivision of such government
which does not participate in work on or under the contract.
The Agency also agrees:
(1) To assist and cooperate actively with the State in obtaining the compliance of contractors and subcontractors with the equal
opportunity clause and rules, regulations, and relevant orders of the Secretary of Labor.
(2) To furnish the State such information as it may require for the supervision of such compliance and that it will otherwise assist the
State in the discharge of its primary responsibility for securing compliance.
(3) To refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with
a contractor debarred from, or who has not demonstrated eligibility for, government contracts and federally assisted construction
contracts pursuant to the Executive Order.
(4) To carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors
and subcontractors by the State, Federal Highway Administration, or the Secretary of Labor pursuant to Part II, subpart D of the
Executive Order.
In addition, the Agency agrees that if it fails or refuses to comply with these undertakings, the State may take any or all of the
following actions:
(a) Cancel, terminate, or suspend this agreement in whole or in part;
(b) Refrain from extending any further assistance to the Agency under the program with respect to which the failure or refusal
occurred until satisfactory assurance of future compliance has been received from the Agency; and
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(c) Refer the case to the Department of Justice for appropriate legal proceedings.
XIII. Liquidated Damages
The Agency hereby agrees that the liquidated damages provisions of 23 CFR Part 635, Subpart 127, as supplemented, relative to
the amount of Federal participation in the project cost, shall be applicable in the event the contractor fails to complete the contract within
the contract time. Failure to include liquidated damages provision will not relieve the Agency from reduction of federal participation in
accordance with this paragraph.
XIV. Termination for Public Convenience
The Secretary of the Washington State Department of Transportation may terminate the contract in whole, or from time to time in
part, whenever:
(1) The requisite federal funding becomes unavailable through failure of appropriation or otherwise.
(2) The contractor is prevented from proceeding with the work as a direct result of an Executive Order of the President with
respect to the prosecution of war or in the interest of national defense, or an Executive Order of the President or Governor of
the State with respect to the preservation of energy resources.
(3) The contractor is prevented from proceeding with the work by reason of a preliminary, special, or permanent restraining
order of a court of competent jurisdiction where the issuance of such order is primarily caused by the acts or omissions of
persons or agencies other than the contractor.
(4) The Secretary is notified by the Federal Highway Administration that the project is inactive.
(5) The Secretary determines that such termination is in the best interests of the State.
XV. Venue for Claims and/or Causes of Action
For the convenience of the parties to this contract, it is agreed that any claims and/or causes of action which the Local Agency
has against the State of Washington, growing out of this contract or the project with which it is concerned, shall be brought only in the
Superior Court for Thurston County.
XVI. Certification Regarding the Restrictions of the Use of Federal Funds for Lobbying
The approving authority certifies, to the best of his or her knowledge and belief, that:
(1) No federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or
attempting to influence an officer or employee of any federal agency, a member of Congress, an officer or employee of Congress, or
an employee of a member of Congress in connection with the awarding of any federal contract, the making of any federal grant, the
making of any federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment,
or modification of any federal contract, grant, loan, or cooperative agreement.
(2) If any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to
influence an officer or employee of any federal agency, a member of Congress, an officer or employee of Congress, or an employee
of a member of Congress in connection with this federal contract, grant, loan, or cooperative agreement, the undersigned shall
complete and submit the Standard Form - LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions.
(3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at
all tiers (including subgrants, and contracts and subcontracts under grants, subgrants, loans, and cooperative agreements) which
exceed $100,000, and that all such subrecipients shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into.
Submission of this certification as a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S.
Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such failure.
XVII. Assurances
Local agencies receiving Federal funding from the USDOT or its operating administrations (i.e., Federal Highway Administration,
Federal Transit Administration, Federal Aviation Administration) are required to submit a written policy statement, signed by the Agency
Executive and addressed to the State, documenting that all programs, activities, and services will be conducted in compliance with
Section 504 and the Americans with Disabilities Act (ADA).
Additional Provisions
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DOT Form 140-039 Packet Pg. 436
Revised 04/2022
4.M.b
Instructions
1. Agency Name and Billing Address — Enter the Agency of primary interest which will become a party to the agreement.
2. Project Number — Leave blank. This number will be assigned by WSDOT.
3. Agreement Number — Leave blank. This number will be assigned by WSDOT.
a.
Project Description — Enter the project name, total length of the project (in miles), and a brief description of the termini. Data
entered here must be consistent with the name, length, and termini noted in the STIP and Project Prospectus
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Example: (Name)"Regal Road", (Length) .2 miles", (Termini)"Smith Road to Main Street"
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b.
Description of Work — Enter a concise statement of the major items of work to be performed. Statement must be consistent
with the description of work noted in the STIP and Project Prospectus.
Example: "Overlay Regal Road; install curb, gutter, and sidewalk; illumination; and traffic signal at the intersection of Regal
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Road and Dakota Avenue."
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c.
Project Agreement End Date — Enter the Project Agreement End Date (mm/dd/yy). This date is based on the project's Period
of Performance (2 CFR 200.309).
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For Planning Only projects — WSDOT recommends agencies estimate the end of the project's period of performance and add
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three years to determine the "Project Agreement End Date".
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For PE and RW — WSDOT recommends agencies estimate when the phase will be completed and add three years to
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determine the "Project Agreement End Date". For Construction — WSDOT recommends agencies estimate when construction
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will be completed and add three years to determine the "Project Agreement End Date".
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d.
Proposed Advertisement Date — At construction authorization only, enter the proposed project advertisement
date (mm/dd/yy).
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e.
Claiming Indirect Cost Rate — Check the Yes box if the agency will be claiming indirect costs on the project. For those
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projects claiming indirect costs, supporting documentation that clearly shows the indirect cost rate being utilized must be
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provided with the local agency agreement. Indirect cost rate approval by your cognizant agency or through your agency's
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self -certification and supporting documentation is required to be available for review by FHWA, WSDOT and /or State Auditor.
Check the No box if the agency will not be claiming indirect costs on the project. See section 23.5 for additional guidance.
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4. Type
of Work and Funding (Round all dollar amounts to the nearest whole dollar)
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a.
PE — Lines a through d show Preliminary Engineering costs for the project by type of work (e.g., consultant, agency, state
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services, etc.).
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*Federal aid participation ratio for PE — enter ratio for PE lines with amounts in column 3.
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• Line a — Enter the estimated amount of agency work in columns 1 through 3.
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• Line b & c — Identify user, consultant, etc., and enter the estimated amounts in columns 1 through 3.
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• Line d — State Services. Every project must have funding for state services. Enter the estimated amounts in columns 1
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through 3.
• Line e — Total of lines a + b + c + d.
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a)
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b.
Right of Way — If a Right of Way phase is authorized on the project, the appropriate costs are shown in lines f through i.
*Federal aid participation ratio for RW — enter ratio for RW lines with amounts in column 3.
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• Line f — Enter the estimated amount of agency work in columns 1 through 3.
• Line g & h — Identify user, consultant, etc., and enter the estimated amounts in columns 1 through 3.
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• Line i — State Services. Every project must have funding for state services. Enter the estimated amounts in columns 1
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through 3.
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• Line j — Total of lines f + g + h + i.
c.
Construction — Lines k through p show construction costs for the project by type of work (e.g., contract, consultant, agency,
state services, etc.).
*Federal aid participation ratio for CN — enter ratio for CN lines with amounts in column 3.
DOT Form
140-039
Packet Pg. 437
Revised
04/2022
4.M.b
• Line k — Enter the estimated cost of the contract.
• Lines I, m, & n — Enter other estimated costs such as utility and construction contracts or non -federally matched
contract costs.
• Line o — Enter estimated costs of all construction related agency work.
• Line p — State Services. Every project must have funding for state services. Enter the estimated amounts in columns 1
through 3.
• Line q — Total Construction Cost Estimate. Total of lines k + I + m + n + o +p.
d. Total Project Cost Estimate
• Line r — Total Cost Estimate of the Project. Total of lines e + j + q.
'Please remember, if the federal aid participation rate entered is not the maximum rate allowed by FHWA, then the
participation rate entered becomes the maximum rate allowed.
6. Signatures —An authorized official of the local agency signs the agreement and enters their title and date of signature (mm/dd/
yy). Note: Do NOT enter a date on the Date Executed line.
7. Method of Construction Financing — Choose the method of financing for the construction portion of the project.
a. Method "A" is used when the state administers the contract for the agency.
b. Method "B" is also used when the state administers the contract for the agency.
c. Method "C" is used with projects administered by the local agency. The agency will submit billings monthly through the
state to FHWA for all eligible costs. The billings must document the payment requests from the contractor. If state -force
work, such as audit and construction engineering, is to receive federal participation, it will be billed to the agency and FHWA
simultaneously at the indicated ratio. To show continuous progress agencies should bill monthly until agreement is closed.
8. Resolutions/Ordinances — When someone other than the County Executive/Chairman, County Commissioners/Mayor is
authorized to sign the agreement, the agency must submit to WSDOT with the agreement a copy of the Resolution/Ordinance
designating that individual.
Parties to the Agreement — Submit one originally signed agreement form to the Region Local Programs Engineer. It is
the responsibility of the local agency to submit an additional, originally signed agreement form if they need an executed
agreement for their files. The agreement is first executed by the agency official(s) authorized to enter into the agreement.
It is then transmitted to the state for execution by Local Programs. The agreement is dated at the time of final execution by
Local Programs.
DOT Form 140-039 Packet Pg. 438
Revised 04/2022