HomeMy WebLinkAboutC 2025-006 Sanderson Ford - signed1
Contract No. 2025-006
COOPERATIVE PURCHASING AGREEMENT
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
DON SANDERSON FORD, INC.
DBA
SANDERSON FORD
THIS COOPERATIVE PURCHASING AGREEMENT (this “Agreement”) is entered into as of July 1, 2024, between the Town of Fountain Hills, an Arizona municipal corporation (the
“Town”), and Don Sanderson Ford, Inc., an Arizona corporation, dba Sanderson Ford (the
“Contractor”).
RECITALS
A. After a competitive procurement process, the State of Arizona, through its
Department of Transportation (“Arizona Department of Transportation” or “ADOT” or “State”),
entered into Contract No. CTR059316, dated March 17, 2022, as amended (collectively, the “State
Contract”) for the Contractor to provide new vehicles. A copy of the State Contract is incorporated
herein by reference, to the extent not inconsistent with this Agreement.
B. The Town is permitted, pursuant to Section 3-3-27 of the Town Code, to make
purchases under the State Contract, at its discretion and with the agreement of the awarded
Contractor, and the State Contract permits its cooperative use by other public entities, including
the Town.
C. The Town and the Contractor desire to enter into this Agreement for the purpose of
(i) acknowledging their cooperative contractual relationship under the State Contract and this
Agreement, (ii) establishing the terms and conditions by which the Contractor may provide the
Town with new vehicles (the “Materials and Services”), and (iii) setting the maximum aggregate
amount to be expended pursuant to this Agreement related to the Materials and Services.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing introduction and recitals, which
are incorporated herein by reference, the following mutual covenants and conditions, and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Town and the Contractor hereby agree as follows:
1. Term of Agreement. This Agreement shall be effective as of the date first set forth
above and attested to by the Town Clerk pursuant to Section 3-3-31 of the Town Code, shall remain
in full force and effect until March 16, 2025 (the “Initial Term”), unless terminated as otherwise
provided in this Agreement or the State Contract. After the expiration of the Initial Term, this
Agreement may be renewed for up to four successive one-year terms (the “Renewal Term”) if: (i)
it is deemed in the best interests of the Town, subject to availability and appropriation of funds for
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renewal in each subsequent year, (ii) the term of the State Contract has not expired or has been
extended, (iii) at least 30 days prior to the end of the then-current term of this Agreement, the
Contractor requests, in writing, to extend this Agreement for an additional one-year term and (iv)
the Town approves the additional one-year term in writing (including any price adjustments
approved as part of the State Contract), as evidenced by the Town Manager’s signature thereon,
which approval may be withheld by the Town for any reason. The Contractor’s failure to seek a
renewal of this Agreement shall cause this Agreement to terminate at the end of the then-current
term of this Agreement; provided, however, that the Town may, at its discretion and with the
agreement of the Contractor, elect to waive this requirement and renew this Agreement. The Initial
Term and any Renewal Term(s) are collectively referred to herein as the “Term.” Upon renewal,
the terms and conditions of this Agreement shall remain in full force and effect.
2. Scope of Work. This is an indefinite quantity and indefinite delivery Agreement for
Materials and Services under the terms and conditions of the State Contract attached hereto as
Exhibit A and incorporated herein by reference. The Town does not guarantee that any minimum
or maximum number of purchases will be made pursuant to this Agreement. Purchases will only
be made when the Town identifies a need and proper authorization and documentation have been
approved. For purchase(s) determined by the Town to be appropriate for this Agreement, the
Contractor shall provide the Materials and Services to the Town in such quantities and
configurations agreed upon between the parties, in a written invoice, quote, work order or other
form of written agreement describing the work to be completed (each, a “Work Order”). Each
Work Order approved and accepted by the parties pursuant to this Agreement shall (i) contain a
reference to this Agreement and the State Contract and (ii) be attached hereto as Exhibit B and
incorporated herein by reference. Work Orders submitted without referencing this Agreement and
the State Contract will be subject to rejection.
2.1 Inspection; Acceptance. All Materials and Services are subject to final
inspection and acceptance by the Town. Materials failing to conform to the requirements of this
Agreement and/or the State Contract will be held at Contractor’s risk and may be returned to the
Contractor. If so returned, all costs are the responsibility of the Contractor. Upon discovery of a
non-conforming Materials or Services, the Town may elect to do any or all of the following by
written notice to the Contractor: (i) waive the non-conformance; (ii) stop the work immediately; or
(iii) bring the Materials or Services into compliance and withhold the cost of same from any
payments due to the Contractor.
2.2 Cancellation. The Town reserves the right to cancel Work Orders within a
reasonable period of time after issuance. Should a Work Order be canceled, the Town agrees to
reimburse the Contractor, but only for actual and documentable costs incurred by the Contractor
due to and after issuance of the Work Order. The Town will not reimburse the Contractor for any
costs incurred after receipt of Town notice of cancellation, or for lost profits, shipment of product
prior to issuance of Work Order or for anything not expressly permitted pursuant to this Agreement.
3. Compensation. The Town shall pay Contractor for the Term amount not to exceed
$50,000 for the Materials and Services at the rates that shall be agreed upon by the parties. The
aggregate amount per renewal term shall not exceed $50,000 in any case unless the Agreement is
affirmed and ratified via an executed amendment. All remaining terms and conditions of the
Agreement shall remain in full force and effect.
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4. Payments. The Town shall pay the Contractor monthly (and the Contractor shall
invoice monthly), based upon acceptance and delivery of Materials and/or Services performed and
completed to date, and upon submission and approval of invoices. Each invoice shall (i) contain a
reference to this Agreement and the State Contract and (ii) document and itemize all work
completed to date. The invoice statement shall include a record of materials delivered, time
expended, and work performed in sufficient detail to justify payment. Additionally, invoices
submitted without referencing this Agreement and the State Contract will be subject to rejection
and may be returned.
5. Records and Audit Rights. To ensure that the Contractor and its subcontractors are
complying with the warranty under Section 6 below, Contractor’s and its subcontractors’ books,
records, correspondence, accounting procedures and practices, and any other supporting evidence
relating to this Agreement, including the papers of any Contractor and its subcontractors’
employees who perform any work or services pursuant to this Agreement (all of the foregoing
hereinafter referred to as “Records”), shall be open to inspection and subject to audit and/or
reproduction during normal working hours by the Town, to the extent necessary to adequately
permit evaluation of the Contractor’s and its subcontractors’ compliance with the Arizona
employer sanctions laws referenced in Section 6 below. To the extent necessary for the Town to
audit Records as set forth in this Section, Contractor and its subcontractors hereby waive any rights
to keep such Records confidential. For the purpose of evaluating or verifying such actual or
claimed costs or units expended, the Town shall have access to said Records, even if located at its
subcontractors’ facilities, from the effective date of this Agreement for the duration of the work
and until three years after the date of final payment by the Town to Contractor pursuant to this
Agreement. Contractor and its subcontractors shall provide the Town with adequate and
appropriate workspace so that the Town can conduct audits in compliance with the provisions of
this Section. The Town shall give Contractor or its subcontractors reasonable advance notice of
intended audits. Contractor shall require its subcontractors to comply with the provisions of this
Section by insertion of the requirements hereof in any subcontract pursuant to this Agreement.
6. E-verify Requirements. To the extent applicable under ARIZ. REV. STAT. § 41-
4401, the Contractor and its subcontractors warrant compliance with all federal immigration laws
and regulations that relate to their employees and their compliance with the E-verify requirements
under ARIZ. REV. STAT. § 23-214(A). Contractor’s or its subcontractors’ failure to comply with
such warranty shall be deemed a material breach of this Agreement and may result in the
termination of this Agreement by the Town.
7. Israel. Contractor certifies that it is not currently engaged in and agrees for the
duration of this Agreement that it will not engage in a “boycott,” as that term is defined in ARIZ.
REV. STAT. § 35-393, of Israel
8. China. Pursuant to and in compliance with A.R.S. § 35-394, Vendor hereby agrees
and certifies that it does not currently, and agrees for the duration of this Agreement that Vendor
will not, use: (1) the forced labor of ethnic Uyghurs in the People’s Republic of China; (2) any
goods or services produced by the forced labor of ethnic Uyghurs in the People’s Republic of
China; or (3) any contractors, subcontractors or suppliers that use the forced labor or any goods or
services produced by the forced labor of ethnic Uyghurs in the People’s Republic of China. Vendor
also hereby agrees to indemnify and hold harmless the Town, its officials, employees, and agents
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from any claims or causes of action relating to the Town’s action based upon reliance upon this
representation, including the payment of all costs and attorney fees incurred by the Town in
defending such as action.
9. Conflict of Interest. This Agreement may be canceled by the Town pursuant to
ARIZ. REV. STAT. § 38-511.
10. Applicable Law; Venue. This Agreement shall be governed by the laws of the State
of Arizona and a suit pertaining to this Agreement may be brought only in courts in Maricopa
County, Arizona.
11. Agreement Subject to Appropriation. The Town is obligated only to pay its
obligations set forth in this Agreement as may lawfully be made from funds appropriated and
budgeted for that purpose during the Town’s then current fiscal year. The Town’s obligations
under this Agreement are current expenses subject to the “budget law” and the unfettered
legislative discretion of the Town concerning budgeted purposes and appropriation of funds.
Should the Town elect not to appropriate and budget funds to pay its Agreement obligations, this
Agreement shall be deemed terminated at the end of the then-current fiscal year term for which
such funds were appropriated and budgeted for such purpose and the Town shall be relieved of
any subsequent obligation under this Agreement. The parties agree that the Town has no obligation
or duty of good faith to budget or appropriate the payment of the Town’s obligations set forth in
this Agreement in any budget in any fiscal year other than the fiscal year in which this Agreement
is executed and delivered. The Town shall be the sole judge and authority in determining the
availability of funds for its obligations under this Agreement. The Town shall keep Contractor
informed as to the availability of funds for this Agreement. The obligation of the Town to make
any payment pursuant to this Agreement is not a general obligation or indebtedness of the Town.
Contractor hereby waives any and all rights to bring any claim against the Town from or relating
in any way to the Town’s termination of this Agreement pursuant to this section.
12. Conflicting Terms. In the event of any inconsistency, conflict or ambiguity among
the terms of this Agreement, any Town-approved work orders, the State Contract, and invoices,
the documents shall govern in the order listed herein. Notwithstanding the foregoing, and in
conformity with Section 2 above, unauthorized exceptions, conditions, limitations or provisions in
conflict with the terms of this Agreement or the State Contract (collectively, the “Unauthorized
Conditions”), other than the Town’s project-specific requirements, are expressly declared void and
shall be of no force and effect. Acceptance by the Town of any work order or invoice containing
any such Unauthorized Conditions or failure to demand full compliance with the terms and
conditions set forth in this Agreement or under the State Contract shall not alter such terms and
conditions or relieve Contractor from, nor be construed or deemed a waiver of, its requirements
and obligations in the performance of this Agreement.
13. Rights and Privileges. To the extent provided under the State Contract, the Town
shall be afforded all of the rights and privileges afforded to State and shall be “State” (as defined
in the State Contract) for the purposes of the portions of the State Contract that are incorporated
herein by reference.
14. Indemnification; Insurance. In addition to and in no way limiting the provisions set
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forth in Section 12 above, the Town shall be afforded all of the insurance coverage and
indemnifications afforded to State to the extent provided under the State Contract, and such
insurance coverage and indemnifications shall inure and apply with equal effect to the Town under
this Agreement including, but not limited to, the Contractor’s obligation to provide the
indemnification and insurance. In any event, the Contractor shall indemnify, defend and hold
harmless the Town and each council member, officer, employee or agent thereof (the Town and
any such person being herein called an “Indemnified Party”), for, from and against any and all
losses, claims, damages, liabilities, costs and expenses (including, but not limited to, reasonable
attorneys’ fees, court costs and the costs of appellate proceedings) to which any such Indemnified
Party may become subject, under any theory of liability whatsoever (“Claims”), insofar as such
Claims (or actions in respect thereof) relate to, arise out of, or are caused by or based upon the
negligent acts, intentional misconduct, errors, mistakes or omissions, in connection with the work
or services of the Contractor, its officers, employees, agents, or any tier of subcontractor in the
performance of this Agreement.
15. Laws and Regulations. Consultant shall keep fully informed and shall at all times
during the performance of its duties under this Agreement ensure that it and any person for whom
the Consultant is responsible abides by, and remains in compliance with, all rules, regulations,
ordinances, statutes or laws affecting the Services, including, but not limited to, the following: (A)
existing and future Town and County ordinances and regulations; (B) existing and future State and
Federal laws; and (C) existing and future Occupational Safety and Health Administration
standards.
16. Notices and Requests. Any notice or other communication required or permitted to
be given under this Agreement shall be in writing and shall be deemed to have been duly given if
(i) delivered to the party at the address set forth below, (ii) deposited in the U.S. Mail, registered
or certified, return receipt requested, to the address set forth below or (iii) given to a recognized
and reputable overnight delivery service, to the address set forth below:
If to the Town: Town of Fountain Hills
16705 East Avenue of the Fountains
Fountain Hills, Arizona 85268
Attn: Rachael Goodwin, Town Manager
With copy to: Town of Fountain Hills
16705 East Avenue of the Fountains
Fountain Hills, Arizona 85268
Attn: Aaron D. Arnson, Town Attorney
If to Contractor: Don Sanderson Ford, Inc., dba
Sanderson Ford
6400 N. 51st Ave
Glendale, Arizona 85301
Attn: Caleb Haley
or at such other address, and to the attention of such other person or officer, as any party may
designate in writing by notice duly given pursuant to this subsection. Notices shall be deemed
received: (i) when delivered to the party, (ii) three business days after being placed in the U.S.
6
Mail, properly addressed, with sufficient postage or (iii) the following business day after being
given to a recognized overnight delivery service, with the person giving the notice paying all
required charges and instructing the delivery service to deliver on the following business day. If a
copy of a notice is also given to a party’s counsel or other recipient, the provisions above governing
the date on which a notice is deemed to have been received by a party shall mean and refer to the
date on which the party, and not its counsel or other recipient to which a copy of the notice may
be sent, is deemed to have received the notice.
[SIGNATURES APPEAR ON FOLLOWING PAGES]
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ATTESTED TO:
_______________________________
Linda G. Mendenhall, Town Clerk
APPROVED AS TO FORM:
________________________________
Aaron D. Arnson, Town Attorney
“Town”
TOWN OF FOUNTAIN HILLS,
an Arizona municipal corporation
FOR THE TOWN OF FOUNTAIN HILLS:
____________________________________
Rachael Goodwin, Town Manager
FOR THE CONTRACTOR:
By:
Name
Title: ______________________________
Caleb Haley (May 20, 2024 12:48 PDT)
Caleb Haley
Caleb Haley
Government Sales Manager
Aaron Arnson (May 20, 2024 13:27 PDT)
Aaron Arnson
Rachael Goodwin (May 28, 2024 07:34 PDT)
Rachael Goodwin
EXHIBIT A TO COOPERATIVE SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND DON SANDERSON FORD, INC. DBASANDERSON FORD[State Contract]
See following pages.
ARIZONA DEPARTMENT OF TRANSPORTATION
1655 W. Jackson Street, MD 100P
Phoenix, AZ 85007
Contract Amendment Summary
CONTRACTOR: Don Sanderson Ford AMENDMENT NO.: Two (2)
DESCRIPTION: CTR059316 - New Vehicles Purchases
Rev. 04/2020
Procurement
Pursuant to the Uniform Terms and Conditions, Section 5, Contract Changes, the above referenced contract is
amended. Summary of changes is as follows:
1. Amendment Two (2) to mutually extend this contract from March 17, 2024 through March 16, 2025
unless terminated, canceled or extended as otherwise provided in the contract.
2. The executed SPO205 Forced Labor of Ethnic Uyghurs Ban form is hereby included with this
amendment.
3. All other terms, conditions and provisions of this contract remain unchanged.
/.\DOT FORCED LABOR OF ETHNIC UYGHURS BAN
Procurement
Forced Labor of Ethnic Uyghurs Ban
Please note that if any of the following apply to the Contractor, then the Offeror shall select the "Exempt Contractor"
option below:
•Contractor is a sole proprietorship;
•Contractor has fewer than ten (10) employees; OR
•Contractor is a non-profit organization.
Pursuant to A.R.S. § 35-394, the State of Arizona prohibits a public entity from entering into or renewing a contract with a
company unless the contract includes written certification that the company does not use the forced labor, or any goods or
services produced by the forced labor, of ethnic Uyghurs in the People's Republic of China.
Under A.R.S. §35-394:
1."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.
2."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.
In compliance with A.R.S. §§ 35-394 et seq., all offerors must select one of the following:
The Company submitting this Offer does not use, and agrees not to use during the term of the contract, any of the
following: , •Forced labor of ethnic Uyghurs in the People's Republic of China;
•Any goods or services produced by the forced labor of ethnic Uyghurs in the People's Republic of China; or
•Any Contractors, Subcontractors, or suppliers that use the forced labor or any goods or services produced by
the forced labor of ethnic Uyghurs in the People's Republic of China.
0 The Company submitting this Offer does participate in use of Forced Uyghurs Labor as described in A.R.S. § 35-394.
I Exempt Contractor.
Indicate which of the following statements applies to this Contractor (may be more than one):
OJ 0 Contractor is a sole proprietorship;
I □Contractor has fewer than ten (10} employees; and/or□Contractor is a non-profit organization.
Company Name Signature of Person Authorized to Sign
�Ljoo tJ, s-;sr /ffl�
Printed Name Address
/12
Clty' State Zip
Solicitation No:
6,o.t.rll�T Sa./..s v
Date
Available online at
https://app.az.gov
Page 1 of 1
SPO Form 105 {rev09-l0ll)
ARIZONA DEPARTMENT OF TRANSPORTATION
1655 W. Jackson Street, MD 100P
Phoenix, AZ 85007
602.712.7211
Contract Amendment Summary
CONTRACTOR: Don Sanderson Ford Inc. AMENDMENT NO.: One (1)
DESCRIPTION: New Vehicle Purchases
Rev. 04/2020
Procurement
Pursuant to the Uniform Terms and Conditions, Section 5, Contract Changes, the above referenced contract is
amended. Summary of changes is as follows:
1. Amendment One (1) to mutually extend this contract from March 17, 2023 through March 16,
2024, unless terminated, canceled or extended as otherwise provided in the contract.
2. All other terms, conditions and provisions of this contract remain unchanged.
DON SANDERSON FORD, INC.
6400 N 51ST AVE
GLENDALE ARIZONA 85301
DHARRIS@SANDERSONFORD.COM
DAVE HARRIS 1-19-2022
GOVERNMENT SALES MANAGER
623-930-5961
623-930-5966SAME
DocuSign Envelope ID: 7AE6D603-F496-4243-9920-A7948B4C771C
March17th 22
CTR059316
3/10/2022
Rev. 04/2020
Procurement
STATE OF ARIZONA
ARIZONA DEPARTMENT OF TRANSPORTATION
1739 W. Jackson St., Ste. A
Phoenix, AZ 85007
REQUEST FOR PROPOSAL
SOLICITATION NUMBER: BPM004157
DESCRIPTION: New Vehicle Purchases
QUESTIONS: Inquiries regarding the solicitation are to be submitted online through the State’s e-Procurement
system, Arizona Procurement Portal (APP) (https://app.az.gov/) using the Discussion Forum tab.
OFFERORS ARE STRONGLY ENCOURAGED TO READ THE ENTIRE SOLICITATION.
Thomas Kornell
Procurement Officer
Phone: 602-712-8520
Email: Tkornell@azdot.gov
This solicitation is issued in accordance with A.R.S. §41-2534 and A.A.C. R2-7-C301 et seq., Competitive Sealed
Proposals.
“An Equal Opportunity Agency”
The Arizona Department of Transportation, in accordance with the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252.42 U.S.C. §§
2000d-4) and the Americans with Disabilities Act (ADA), hereby notifies all bidders that it will affirmatively ensure that any contract entered into
pursuant to this advertisement, disadvantaged business enterprises will be afforded full and fair opportunity to submit bids in response to this
invitation and will not be discriminated against on the grounds of race, color, national origin in consideration for an award.
Persons that require a reasonable accommodation based on language or disability should contact ADOT’s Procurement Office by phone (602)
712-2089. Requests should be made as early as possible to ensure the State has an opportunity to address the accommodation.
Las personas que requieran asistencia (dentro de lo razonable) ya sea por el idioma o discapacidad deben ponerse en contacto con ADOT (602)
712-2089.
TABLE OF CONTENTS
Solicitation No: BPM004157 Available online at
https://app.az.gov/
Page 2 of 81
Procurement
SECTION PAGE
Notice 1
Table of Contents 2
Scope of Work 3
Special Terms and Conditions 7
Uniform Terms and Conditions 19
Federal Provisions 29
EXHIBITS
1 - Title VI/Non-Discrimination Assurances Appendix A 73
2 - Title VI/Non-Discrimination Assurances Appendix E 74
3- Usage Report Exhibit 3 75
4- On-site Manufacturer inspection Compliance Certification Exhibit 4 76
5- Pre-Award Audit and Certification Exhibit 5 77
6- Purchaser’s Pre-Award Requirements Certification Exhibit 6 78
7- Post-Award Certification and Requirements Exhibit 7 79
8- Purchaser’s Post-Award Requirements Certification Exhibit 8 81
SCOPE OF WORK
Solicitation No: BPM004157 Available online at
https://app.az.gov/
Page 3 of 81
Procurement
1. Statement of Need
1.1. Pursuant to the Arizona Procurement Code, A.R.S. §41-2501 et seq., the State of Arizona
Department of Transportation (Department), has a requirement for New Vehicle Purchase.
2. Introduction and Background
2.1 The State of Arizona Department of Transportation (Department) is seeking to contract with a
qualified vendor(s) who can provide new vehicles (all fuel types, hybrid, and full electric) including
but not limited to: Sedans, Trucks up to 19,500 GVWR, Vans, Sport Utility Vehicles (SUVs), and
Crossovers for the State of Arizona and participating Eligible Agencies. These vehicles will be used to
support official organizational goals. These vehicles will be used on highways, city/county roads and
shall be designed to operate under typical Arizona ambient temperatures.
2.2 Background: The State and its Eligible Agencies currently spend an estimated twenty-one million
dollars in the purchase of new vehicles annually.
2.3 The following are the Three Categories covered in this Scope of Work:
Category One: Phase One (1) Vehicle Purchases
Category Two: Phase Two (2) Vehicle Purchases
Category Three: FTA Funded Vehicles
3 General Requirements
3.1 Vehicles shall be new and supplied with all equipment and accessories indicated as standard
equipment in the manufacturer’s published literature (or website). Optional equipment necessary
to meet the minimum requirements shall be included.
3.2 All vehicles ordered through Phase 1 (off the line) shall be Manufacturer's current year models in
production throughout the term of this contract and shall be serviced completely by the vendor
before delivery and ready in all respects for use. For the initial contract period; vehicles shall be
new model year 2022 or greater.
3.3 Vehicles ordered through Phase 2 (on the lot) shall have less than 100 original odometer miles and
be new (have never been previously owned) unless pre-approved in writing by the Eligible Agency.
3.4 All vehicles shall meet requirements of applicable Arizona Motor Vehicle laws and all other
applicable Federal Motor Vehicle Safety Standards (including the Federal Bridge Formula),
whether or not such requirements are specified in detail.
3.5 For Phase Two (2) vehicles, the Contractor shall supply a quote within five (5) calendar days after
receiving a request from the Eligible Agency. The quotation shall include but not be limited to the
following information: State contract number, vehicle availability and delivery lead-time, Vehicle
Identification Number (VIN), dealer stock number, vehicle base bid price, itemized options,
applicable tax, delivery cost, total price, and point of contact. For vehicles requiring up-
fit/modifications, all applicable cost may be included in quotation or as a separate quotation.
SCOPE OF WORK
Solicitation No: BPM004157 Available online at
https://app.az.gov/
Page 4 of 81
Procurement
3.6 Delivery location shall be identified on the issuing agency purchase order. Deliveries shall be made
within 120 days of receipt of purchase orders, unless factory delays make this impossible. Dealer
shall notify the ordering agency of such delays along with a revised delivery estimate from the
factory immediately after it becomes known. If the manufacturer has a website available to check
order status, this information will be shown in space provided on Offer Response Form.
3.7 All deliveries shall be made Monday through Friday from 8:00 A.M. to 2:00 P.M. The Contractor
shall be required to give the using agency a minimum of 24-hour notification prior to delivery with
the anticipated time of delivery and number of units to be delivered.
3.8 All vehicles shall be delivered with four (4) entrance tools and a full tank(s) of fuel, less delivery
fuel.
3.9 The following documents shall be provided upon delivery of the vehicle(s):
3.9.1 M.S.O. (Manufacturer Statement of Origin) that includes the odometer statement
3.9.2 Warranty Document
3.9.3 Manufacturers unaltered invoice
3.9.4 Delayed warranty / in service start request form (if requested by ordering entity)
3.9.5 Level 1 Inspection if applicable, completed before delivery
3.10 For Phase One (1) the Contractor shall provide the Eligible Agency copies of the manufacturer's
vehicle identification numbers (VIN#) to confirm vehicles have been ordered unless impossible
due to manufacture delay within ninety (90) calendar days after receipt of a purchase order. If
confirmation of manufacturer’s VIN #(s) is not received within this timeframe the Eligible Agency
has the option to award to the second lowest bidder meeting specifications. This shall be
considered a mandatory requirement and the timeframe must be met unless there is a
manufacture delay. Failure to provide this document for each vehicle ordered may be cause for
determination of default of contract.
4 Specific Requirements
4.1 The Contractors are encouraged to provide a full line of new vehicles (gasoline, hybrid, full
electric) including but not limited to the following categories: Sedans, Trucks up to 19,500 GVWR,
Vans (cargo, passenger, transit, etc.), Sport Utility Vehicles (SUVs), and Crossovers. Eligible
Agencies throughout the State will have varying vehicle needs. Contractors are to provide a full
line of manufactured new vehicles and all subsequent variants of each vehicle; including but not
be limited to: models and manufacturer options, trim package, etc. to meet each need of an
Eligible Agency.
4.2 As new model year vehicles become available, vendor shall submit pricing at either the same rate
as the previous model, or submit a request for an increase or decrease based only on the
manufacturer’s increase or decrease. Documentation must be submitted to the Procurement
Officer within 30 days of the effective date of change. New model year vehicles cannot be offered
without approval from the Procurement Officer.
4.3 The following fuel types are allowable under this contract are to include but are not limited too.
4.3.1 Flexible Fuel Vehicles (FFV) also called Ethanol or E85
4.3.2 Diesel
SCOPE OF WORK
Solicitation No: BPM004157 Available online at
https://app.az.gov/
Page 5 of 81
Procurement
4.3.3 Gasoline
4.3.4 Compressed Natural Gas (CNG): CNG systems must be O.E.M. or O.E.M. approved
4.3.5 Hybrid-Electric Vehicles (HEV)
4.3.6 Plug-in Hybrid Electric Vehicles (PHEV)
4.3.7 Electric Vehicles (EV) also called Battery Electric Vehicles (BEV)
4.3.8 Fuel Cell Vehicles (FCV)
4.4 Vehicle Up-fit / Modifications
4.4.1 The Eligible Agency may request the awarded Contractor(s) to up-fit/modify any vehicle for
specific organizational needs. For example, the cab and chassis of ½ ton, ¾ ton, and/or up to
19,500 GVW trucks may require a specialized body (i.e.: dump body, landscape body, etc.).
Other vehicles may require interior and/or exterior modifications per the individual Eligible
Agency.
4.4.2 The Eligible Agency will supply all up-fit/modification requests to the Contractor. The
Contractor shall identify any conditions that apply to the up-fit/modification on a quotation
to the Eligible Agency for review before any work commences.
4.5 Minimum Vehicle Requirements: All prices shall include the following equipment:
4.5.1 All standard factory equipment
4.5.2 Automatic transmission [maximum towing/payload capacity shall be provided upon request)
4.5.3 Bluetooth capabilities
4.5.4 AM/FM radio
4.5.5 Cruise Control
4.5.6 Power Door Locks/Power Windows
4.5.7 Power Mirrors when available
4.5.8 Four (4) entrance tools (in any combination allowed; keyless entry remotes, integrated or
smart keys, standard cut keys) per vehicle.
a. Type of keys to be provided shall be indicated on quote.
4.5.9 Air conditioning
a. Rear air conditioning on all vehicles, when available
4.5.10 Cloth seats
4.5.11 Rear view mirrors including on driver and passenger doors
a. FOR TRUCKS: Rear view mirrors on driver front and passenger front doors, largest
available without upgrading vehicle options package.
b. Back up Camera
4.5.12 Spare tire
a. Full size standard steel wheel with matching Original Equipment Manufacturer spare tire
identical to standard equipment with the trim level of the delivered vehicle.
b. If full spare is not available due to space or manufacturer standards, an alternative shall
be provided and noted on quote provided.
4.5.13 Floor Mats
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a. O.E.M. floor mat sets installed in all seating rows where the vehicle comes with
carpeted floors.
b. Fixed driver floor mat
4.5.14 Arizona legal tinted glass
4.5.15 Minimum of 2 USB charging Ports
4.6 Specific Requirements for Trucks (when available)
4.6.1 Anti-slip differential for two-wheel drive pickup trucks, ¾ ton, up to 19,500 GVW.
4.6.2 Skid plate package and anti-slip differential for four-wheel drive vehicles
4.6.3 Front tow hooks
5 Contractor’s Responsibilities
Contractor shall be responsible for processing the registration, licensing, title and plating of all new
vehicles ordered only if requested by the Eligible Agency.
6 Department’s Responsibilities
The Eligible Agencies will provide final acceptance and approval of any equipment and services delivered
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1. CONTRACT TERM
The term of any resultant contract shall commence on the effective day of award and shall continue for
a period of twelve months (12) thereafter, unless terminated, cancelled or extended as otherwise
provided herein.
2. CONTRACT EXTENSION
By mutual written contract amendment, any resultant contract may be extended for supplemental
periods of up to a maximum of forty-eight (48) months.
3. ELIGIBLE AGENCIES
This contract shall be for the use of all State of Arizona departments, agencies and boards. In addition,
eligible universities, political subdivisions and nonprofit educational or public health institutions may
participate at their discretion. In order to participate in any resultant contract, a university, political
subdivision or nonprofit educational or public health institution must have entered into a cooperative
purchasing agreement with the State Procurement Office as required by Arizona Revised Statutes §41-
2632.
4. NON-EXCLUSIVE CONTRACT
This contract shall be for the sole convenience of the Department. The Department reserves the right to
obtain like goods or services from another source when necessary. The Off-Contract Purchase
Authorization and subsequent procurement shall be consistent with the Arizona Procurement Code.
5. ORDERING PROCESS
The Department shall issue a purchase order to the Contractor. Each purchase order must cite the
contract number. This purchase order shall be the only document required for the Department to order
and the Contractor to deliver the material and/or service.
Any attempts to represent any material and/or service not specifically awarded as being under contract
is a breach of the contract and a violation of the Arizona Procurement Code. Any such action is subject
to the legal and contractual remedies available to the State inclusive of but not limited to contract
cancellation, suspension and/or debarment of the Contractor.
6. SHIPPING TERMS
Delivery shall be F.O.B. Destination to the location designated herein. Contractor shall retain title and
control of all goods until they are delivered. All risk of transportation and related charges shall be the
responsibility of the Contractor. All claims for visible or concealed damage shall be filed by the
Contractor. The Department will notify the Contractor promptly of any damaged goods and shall assist
the Contractor in arranging for inspection.
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7. DELIVERY
Contract prices shown for each vehicle include delivery cost within a sixty (60) mile radius of Phoenix.
For the purpose of this contract, the address used for mapping the radius within Phoenix will be as
follows:
Equipment services shop/ADOT
2225 S 22nd Ave, Phoenix, AZ 85009
Delivery costs for each county outside of the Phoenix area shall be indicated on Offer Response form.
This will be an added cost to the contract price.
Deliveries shall be completed In accordance with the requirements of the contract.
Delivery of the product does not constitute acceptance.
8. INSPECTION AND ACCEPTANCE
Each item delivered shall be subject to a complete inspection by the Department within 10 days after
delivery. Inspection criteria shall include, but not be limited to, conformity to the specifications,
workmanship, quality and materials.
If the delivered product is not accepted and returned for corrective action, an additional fifteen (15)
calendar days shall be allowed for inspection of the corrected or replacement product.
The Contractor shall be responsible for the transport of the material to and from the Department for the
correction of items or workmanship not in compliance with the specifications.
Product returned for corrective action may delay payment. Invoices will be processed for payment only
after the product is accepted.
9. INVOICING and PAYMENT
Contractor shall submit all billing notices or invoices to the Eligible Agency or Co-Op Buyer at the address
Indicated on the applicable Order document.
Separate invoices are required for each shipment of product or delivery of service and shall include at a
minimum:
Department Location’s Name and Address
Vendor Name, Remit to Address and Contact Information
Contract Number
Purchase Order Number
Invoice Number and Date
Date the items were shipped to the Department
Applicable payment terms
Contract Line Item Number
Line Item Description or Item or Service
Quantity Purchased
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Line Item Unit of Measure
Price per Unit and Total per Unit
Catalog or Other Discount (if applicable)
Net Unit Price and Total per Unit (if applicable)
Applicable taxes (as a separate invoice line item)
Applicable Shipping/Freight Charges etc. (as a separate invoice line item) Materials only.
Total Invoice Amount Due
Invoices not sent to the proper address, or not containing the necessary and required information may
delay payment. A Contractor whose payments are delayed due to improper invoicing shall make no claim
against the Department or the State for late or finance charges.
The Department will make every effort to process payment for the purchase of product within thirty (30)
calendar days after the Department has conducted the necessary reviews, inspections and acceptance as
described herein.
The department acceptance date will be the valid date for starting the thirty (30) calendar day payment
period.
Payment due dates, including discount periods, will be computed from the date of acceptance or date of
correct invoice (whichever is later) to the date the Department’s warrant is mailed.
10. ESTIMATED USAGE
The Department anticipates considerable usage under this contract. The Department reserves the right
to increase or decrease actual quantities ordered as circumstances may require. No guarantees are
made concerning actual purchases under this contract.
11. PRICING
1 Phase 1 and 2 pricing for vehicles shall be a minimum Percentage off MSRP, less the manufacturer’s
rebates and any additional discounts available for that model/power-train combination.
a. Contractor shall provide a copy of manufacturer’s invoice to the ordering agency upon request.
The manufacturer’s invoice shall be unaltered to include original pricing from the manufacturer.
b. Transportation costs to transfer a vehicle from another dealer for a Phase 2 or purchase from
stock may be added to the cost of the vehicle. The justification for this cost is at the discretion of
the Eligible Agency.
c. Any reference to Phase 1 pricing shall be in reference to vehicles ordered prior to the factory
cut-off date.
d. Any reference to Phase 2 pricing shall be in reference to vehicles purchased from stock or “on
the lot”.
e. Phase 2 pricing shall receive the same cost considerations as Phase 1 pricing, all discounts and
rebates should be passed onto the Eligible Agency.
f. All vehicles are to be billed at prices in effect at the time of order, not the date of shipment.
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g. Pricing for vehicles shall include all discounts and deductions, less Federal and State taxes.
Pricing shall be firm for life of contract unless amended by way of contract change order.
2 CONTRACTOR’S BEST PRICING: Supplier warrants that, for the term of the Contract, the prices and
discounts set out in the Pricing Documents, including any subsequent agreed amendment to it (the
“Contract Pricing”), will be equal to or better than the lowest prices and largest discounts, both
separately and in combination, at which Contractor sells equivalent items of equipment and
materials.
2.1 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.
2.2 If Contractor’s Best Pricing for equivalent items of equipment and materials is better than the
Contract Pricing, then Contractor agrees to adjust the Contract Pricing to match the Contractor’s
Best Pricing for all sales related to the Contractor made after the date when the Contractor’s
Best Pricing was first better than the Contract Pricing.
2.3 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
Supplier 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 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 Contractor 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.
4 LARGE VOLUME DISCOUNT PRICING: An Eligible Agency 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 Agency for large volume purchases.
5 A price reduction adjustment may be offered at any time during the term of a contract and shall
become effective upon notice through a written contract amendment.
12. PRICE INCREASE
The Department will review fully documented requests for price increases for any contract which will or
has been in effect for twelve (12) months. The request shall be submitted no less than 60 days prior to
the contract renewal date. The Contractor shall provide fully documented information which supports
the price increase request. Fully documented means that the request shall present detailed information
and calculations that make it clear how the claimed increase has an impact on the contract unit prices.
All assumptions regarding cost factors that have an impact on the requested increase shall also be
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clearly identified and justified. The requested price increase must be based upon a cost increase that
was clearly unpredictable at the time of the offer and can be shown to directly affect the price of the
item concerned. Any price increase adjustment request prior to the time of contract extension will be a
factor in the extension review process. The Department will determine whether the requested price
increase or an alternate option, is in the best interest of the State. All pricing should reflect the
minimum percentage of MSRP.
13. SAFETY STANDARDS
Items supplied under this contract shall comply with all current applicable safety standards and
regulations including the Occupational Safety and Health Standards of the State of Arizona Industrial
Commission, the National Electric Code and the National Fire Protection Association Standards.
14. WARRANTY
The Contractor warrants:
1. That all services performed hereunder shall conform to the requirements of this contract and shall be
performed by qualified personnel in accordance with the highest professional standards.
2 At a minimum all equipment supplied under these specifications shall be fully warranted by the
vehicle manufacturer against mechanical and electrical defects for a minimum period of thirty-six
(36) months from the date vehicle is placed in service.
3 This warranty shall cover such items as actual repair labor, parts, and shipping charges to and from
the nearest service facility or other designated repair depot.
4 Any defects of design, workmanship or material, shall be fully corrected by the vendor without cost
to the state agency or political subdivision.
5 The written warranty shall be included with the delivered vehicles to the Eligible Agency. The
warranty terms shall be stated on Attachment 3-A, where indicated. Failure to provide this general
information may result in the offer being rejected.
6 Hybrid / Electric Vehicle Warranty: Hybrid-related components including catalytic convertor,
electronic control unit, onboard emissions diagnostic device, high voltage battery, transmission,
DC/DC convertor for hybrid vehicles shall be covered for 8 years/100,000 miles, battery for electric
vehicles shall be 8/years/100,000 miles and bidder shall indicate limitation of warranty due to
voltage and amps. The warranty terms shall be stated where indicated on Attachment 3-A. Failure to
provide this general information may result in the bid being rejected.
15. CURRENT PRODUCTS
All products supplied under this contract shall be in current and ongoing production; shall have been
formally announced for general marketing purposes; shall be a model or type currently functioning in a user
(paying customer) environment and capable of meeting or exceeding all specifications and requirements set
forth in the contract.
16. PRODUCT DISCONTINUANCE
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In the event that a product or model is discontinued by the manufacturer, the Department at its sole
discretion may allow the Contractor to provide a substitute for the discontinued item. The Contractor
shall request authorization to substitute a new product or model and provide the following:
1. A formal announcement from the manufacturer that the product or model has been
discontinued.
2. Documentation from the manufacturer that names the replacement product or model.
3. Documentation that provides clear and convincing evidence that the replacement meets or
exceeds all specifications required by the original solicitation.
4. Documentation that provides clear and convincing evidence that the replacement will be
compatible with all the functions or uses of the discontinued product or model.
5. Documentation confirming that the price for the replacement is the same as or less than the
discontinued product or model.
17. CONTRACT ADMINISTRATION
The Contractor shall contact the assigned Procurement Officer for guidance or direction in matters of
contract interpretation or questions regarding the terms, conditions or scope of the contract.
18. NOTICES
All notices, requests, demands, consents, approvals, and other communications which may or are
required to be served or given hereunder (for the purposes of this provisions collectively called
“Notices”), shall be in writing and shall be sent by certified United States mail, return receipt requested,
or by any other method that provides evidence of receipt, addressed to the party or parties to receive
such notice as follows:
A. If intended for the State, to:
Arizona Department of Transportation, Procurement Group
1739 W. Jackson Street, MD 100P
Phoenix, Arizona 85007-3276
B. If intended for the Contractor, to the address as identified in the Contractor’s electronic vendor
profile. Or to such other address as either party may from time to time furnish in writing to the other
by notice hereunder. Any notice so mailed shall be deemed to have been given as of the date such
notice is received as shown on the return receipt. Furthermore, such notice may be given by
delivering personally such notice, if intended for the State, to the Arizona Department of
Transportation, Procurement Officer and, if intended for the Contractor, to the person named on the
Offer & Contract Award of this contract, or to such other person as either party may from time to
time furnish in writing to the other by notice hereunder. Any notice so delivered shall be deemed to
have been given as of the date such notice is personally delivered to the other party.
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19. CANCELLATION FOR POSSESSION OF WEAPONS ON ADOT PROPERTY
This contract may be cancelled if Contractor or any subcontractors or others in the employ or under the
supervision of the Contractor or subcontractors is found to be in possession of weapons.
Possession of weapons (firearms, explosive device, knife or blade of more than three inches, or any
other instrument designed for lethal or disabling use) is prohibited on ADOT property.
Further, if the Contractor or any subcontractors or others in the employ or under the supervision of the
Contractors or subcontractors are asked by an ADOT official to leave the ADOT property, they are
advised that failure to comply with such a request shall result in cancellation of the contract and anyone
who refuses, whether armed or not, is subject to prosecution under A.R.S. § 13-1502, "Criminal trespass
in the third degree; classification."
20. INDEMNIFICATION CLAUSE
To the fullest extent permitted by law, Contractor shall defend, indemnify, and hold harmless the State
of Arizona, and its departments, agencies, boards, commissions, universities, officers, officials, agents,
and employees (hereinafter referred to as “Indemnitee”) from and against any and all claims, actions,
liabilities, damages, losses, or expenses (including court costs, attorneys’ fees, and costs of claim
processing, investigation and litigation) (hereinafter referred to as “Claims”) for bodily injury or personal
injury (including death), or loss or damage to tangible or intangible property caused, or alleged to be
caused, in whole or in part, by the negligent or willful acts or omissions of Contractor or any of its
owners, officers, directors, agents, employees or subcontractors. This indemnity includes any claim or
amount arising out of, or recovered under, the Workers’ Compensation Law or arising out of the failure
of such Contractor to conform to any federal, state, or local law, statute, ordinance, rule, regulation, or
court decree. It is the specific intention of the parties that the Indemnitee shall, in all instances, except
for Claims arising solely from the negligent or willful acts or omissions of the Indemnitee, be indemnified
by Contractor from and against any and all claims. It is agreed that Contractor will be responsible for
primary loss investigation, defense, and judgment costs where this indemnification is applicable. In
consideration of the award of this contract, the Contractor agrees to waive all rights of subrogation
against the State of Arizona, its officers, officials, agents, and employees for losses arising from the work
performed by the Contractor for the State of Arizona. This indemnity shall not apply if the contractor or
sub-contractor(s) is/are an agency, board, commission or university of the State of Arizona.
21. INSURANCE REQUIREMENTS
21.1 Contractor and subcontractors shall procure and maintain, until all of their obligations have
been discharged, including any warranty periods under this Contract, insurance against claims
for injury to persons or damage to property arising from, or in connection with, the
performance of the work hereunder by the Contractor, its agents, representatives, employees
or subcontractors.
21.2 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
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warrants that the minimum limits contained herein are sufficient to protect the Contractor
from liabilities that arise out of the performance of the work under this Contract by the
Contractor, its agents, representatives, employees or subcontractors, and the Contractor is
free to purchase additional insurance.
21.3 Minimum Scope and Limits of Insurance Contractor shall provide coverage with limits of
liability not less than those stated below.
21.3.1 Commercial General Liability (CGL) – Occurrence Form
The Contractor shall furnish Certificate(s) of Insurance inclusive of the following
requirements to the Department. Certificate(s) shall be received within 10 calendar
days of notification of contract award by the Procurement Officer.
Policy shall include bodily injury, property damage, 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.
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.
21.3.2 Business Automobile Liability
Bodily Injury and Property Damage for any owned, hired, and/or non-owned
automobiles used in the performance of this Contract.
• 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, 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
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automobiles owned, 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.
21.3.3 Workers’ Compensation and Employers' Liability
• Workers' Compensation Statutory
• Employers' Liability
o Each Accident $1,000,000
o Disease – Each Employee $1,000,000
o 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 or Independent Contractor).
21.4 Additional Insurance Requirements The policies shall include, or be endorsed to include, as
required by this written agreement, the following provisions:
21.4.1 The Contractor's policies, as applicable, shall stipulate that the insurance afforded the
Contractor shall be primary and that any insurance carried by the Department, its
agents, officials, employees or the State of Arizona shall be excess and not contributory
insurance, as provided by A.R.S. § 41-621 (E).
21.4.2 Insurance provided by the Contractor shall not limit the Contractor’s liability assumed
under the indemnification provisions of this Contract.
21.5 Notice of Cancellation Applicable to all insurance policies required within the Insurance
Requirements of this Contract, Contractor’s insurance shall not be permitted to expire, be
suspended, be canceled, or be materially changed for any reason without thirty (30) days prior
written notice to the State of Arizona. Within two (2) business days of receipt, Contractor
must provide notice to the State of Arizona if they receive notice of a policy that has been or
will be suspended, canceled, materially changed for any reason, has expired, or will be
expiring. Such notice shall be sent directly to the Department and shall be mailed, emailed,
hand delivered or sent by facsimile transmission to (State Representative’s Name, Address &
Fax Number).
21.6 Acceptability of Insurers Contractor’s insurance shall be placed with companies licensed in the
State of Arizona or hold approved non-admitted status on the Arizona Department of
Insurance List of Qualified Unauthorized Insurers. Insurers shall have an “A.M. Best” rating of
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not less than A- VII. The State of Arizona in no way warrants that the above-required minimum
insurer rating is sufficient to protect the Contractor from potential insurer insolvency.
21.7 Verification of Coverage Contractor shall furnish the State of Arizona with certificates of
insurance (valid ACORD form or equivalent approved by the State of Arizona) evidencing that
Contractor has the insurance as required by this Contract. An authorized representative of the
insurer shall sign the certificates.
21.7.1 All such certificates of insurance and policy endorsements must be received by the
State before work commences. The State’s receipt of any certificates of insurance or
policy endorsements that do not comply with this written agreement shall not waive
or otherwise affect the requirements of this agreement.
21.7.2 Each insurance policy required by this Contract must be in effect at, or prior to,
commencement of work under this Contract. Failure to maintain the insurance
policies as required by this Contract, or to provide evidence of renewal, is a material
breach of contract.
21.7.3 All certificates required by this Contract shall be sent directly to the Department. The
State of Arizona project/contract number and project description shall be noted on
the certificate of insurance. The State of Arizona reserves the right to require
complete copies of all insurance policies required by this Contract at any time.
21.8 Subcontractors Contractor’s certificate(s) shall include all subcontractors as insureds under its
policies or Contractor shall be responsible for ensuring and/or verifying that all subcontractors
have valid and collectable insurance as evidenced by the certificates of insurance and
endorsements for each subcontractor. All coverages for subcontractors shall be subject to the
minimum Insurance Requirements identified above. The Department reserves the right to
require, at any time throughout the life of the Contract, proof from the Contractor that its
subcontractors have the required coverage.
21.9 Approval and Modifications the Contracting Agency, in consultation with State Risk, reserves
the right to review or make modifications to the insurance limits, required coverages, or
endorsements throughout the life of this contract, as deemed necessary. Such action will not
require a formal Contract amendment but may be made by administrative action.
21.10 Exceptions In the event the Contractor or subcontractor(s) is/are a public entity, then the
Insurance Requirements shall not apply. Such public entity shall provide a certificate of self-
insurance. If the Contractor or subcontractor(s) is/are a State of Arizona agency, board,
commission, or university, none of the above shall apply.
22. USAGE REPORT
The Contractor shall furnish Two (2) Usage reports, the first to the Department on a quarterly basis
showing purchasing activity under this contract. This usage report shall be provided in a form
substantially equivalent to Exhibit 03. Usage reports shall be submitted to the Procurement Officer no
later than 30 days after the end of each quarter.
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Usage report quarters shall be defined as follows:
January through March – Report due April 30
April through June – Report due July 30
July through September – Report due October 30
October through December – Report due January 30
Contractor shall submit the second to the State documenting all Contract sales to both Eligible Agencies
and Co-Op Buyers, itemized separately. A Quarterly Usage Report shall still be submitted; even if there
have been no sales to either Eligible Agencies and/or Co-Op Buyers. Contractor shall further itemize
divisions, groups or areas within a given Eligible Agency if they place Orders independently of each
other. Failure to submit the report is a material breach of contract, and will entitle State to its remedies
under Article 8 and its right to terminate for default under Article 9. Contractor shall submit the report
using the forms and following the instructions on the State Procurement Office website:
https://spo.az.gov/contractor-resources/statewide-contracts-administrative-fee
23. CONTRACT ORDER OF PRECEDENCE
In the event of a conflict in the provisions of the Contract, as accepted by the Department and as
they may be amended, the following shall prevail in the order set forth below:
Federal Provisions
Special Terms and Conditions
Uniform Terms and Conditions
Statement or Scope of Work
Specifications
Attachments
Exhibits
Special Instructions to Offerors
Uniform Instructions to Offerors
Other documents referenced or included in the Solicitation
24. LICENSES, PERMITS, CERTIFICATIONS
Contractor, at their expense, shall maintain in current status without any violations, complaints, or
suspensions during the term of this contract all Federal, State and Local licenses, permits and
certifications required for the operation of a business conducted by the Contractor.
25. CO-OP USAGE
Contractor shall verify if an ordering entity is a bona fide Co-Op Buyer before selling Materials to or
providing Services for them under the Contract. The current list of Co-Op Buyers is available on the State
Procurement Office website:
https://spo.az.gov/contractor-resources/statewide-contracts-administrative-fee
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Contractor shall sell to Co-Op Buyers at the same price, and with the same lead times and other terms
and conditions under which it sells to Eligible Agencies. With the sole exception of any legitimate
additional costs for extraordinary shipping, or delivery requirements, if the Co-Op Buyer is having
Materials delivered or installed or Services performed at locations not contemplated in the contracted
pricing (e.g. delivery to a location outside Arizona).
Contractor shall acknowledge each Order from Co-Op Buyers in conformance with each buyer’s
instructions given at the time of ordering or in any supplemental participating agreement Contractor
might have with them. Orders from Co-Op Buyers create no obligation on State’s part, since they are
entirely between the Co-Op Buyer and Contractor. That notwithstanding, Contractor’s obligation under
the Contract is to service Co-Op Buyers commercially as though they were with an Eligible Agency, and
Contractor’s refusal to do so would be a material breach of the Contract.
26. POST AWARD MEETING
At the discretion of the Department, the Contractor, at their expense, shall attend and participate in
post award meetings as scheduled by the Procurement Officer.
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1. Definition of Terms
As used in this Solicitation and any resulting Contract, the terms listed below are defined as
follows:
1.1. “Attachment” means any item the Solicitation requires the Offeror to submit as part of
the Offer.
1.2. “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 Amendment" means a written document signed by the Procurement Officer
that is issued for the purpose of making changes in the Contract.
1.4. “Contractor” means any person who has a Contract with the State.
1.5. “Days” means calendar days unless otherwise specified.
1.6. “Exhibit” means any item labeled as an Exhibit in the Solicitation or placed in the
Exhibits section of the Solicitation.
1.7. “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” 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 Officer” means the person, or his or her designee, duly authorized by the
State to enter into and administer Contracts and make written determinations with
respect to the Contract.
1.10. “Services” means the furnishing of labor, time or effort by a contractor or subcontractor
which does not involve the delivery of a specific end product other than required
reports and performance, but does not include employment agreements or collective
bargaining agreements.
1.11. “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 re quired for the
performance of the Contract.
1.12. “State” means the State of Arizona and Department or Agency of the State that
executes the Contract.
1.13. “State Fiscal Year” means the period beginning with July 1 and ending June 30.
2. Contract Interpretation
2.1. Arizona Law. The Arizona law applies to this Contract including, where applicable, the
Uniform Commercial Code as adopted by the State of Arizona and the Arizona
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Procurement Code, Arizona Revised Statutes (A.R.S.) Title 41, Chapter 23, and its
implementing rules, Arizona Administrative Code (A.A.C.) Title 2, Chapter 7.
2.2. Implied Contract Terms. Each provision of law and any terms required by law to be in
this Contract are a part of this Contract as if fully stated in it.
2.3. Contract Order of Precedence. In the event of a conflict in the provisions of the
Contract, as accepted by the State and as they may be amended, the following shall
prevail in the order set forth below:
Federal Provisions
Special Terms and Conditions
Uniform Terms and Conditions
Statement or Scope of Work
Specifications
Attachments
Exhibits
Special Instructions to Offerors
Uniform Instructions to Offerors
Other documents referenced or included in the Solicitation
2.4. Relationship of Parties. The Contractor under this Contract is an independent
Contractor. Neither party to this Contract shall be deemed to be the employee or agent
of the other party to the Contract.
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. 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.
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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 and Materials Testing. The Contractor agrees to permit access to its
facilities, subcontractor facilities and the Contractor’s processes or services, at
reasonable times for inspection of the facilities or materials covered under this Contract.
The State shall also have the right to test, at its own cost, the materials to be supplied
under this Contract. Neither inspection of the Contractor’s facilities nor materials
testing shall constitute final acceptance of the materials or services. If the State
determines non-compliance of the materials, the Contractor shall be responsible for the
payment of all costs incurred by the State for testing and inspection.
3.5. 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 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, Publishing and Promotion of Contract. The Contractor shall not use,
advertise or promote information for commercial benefit concerning this Contract
without the prior written approval of the Procurement Officer.
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 Intellectual Property. Any and all intellectual property, including but not
limited to copyright, invention, trademark, trade name, service mark, and/or trade
secrets created or conceived pursuant to or as a result of this contract and any related
subcontract (“Intellectual Property”), shall be work made for hire and the State shall be
considered the creator of such Intellectual Property. The agency, department, division,
board or commission of the State of Arizona requesting the issuance of this contract
shall own (for and on behalf of the State) the entire right, title and interest to the
Intellectual Property throughout the world. Contractor shall notify the State, within
thirty (30) days, of the creation of any Intellectual Property by it or its subcontractor(s).
Contractor, on behalf of itself and any subcontractor(s), agrees to execute any and all
document(s) necessary to assure ownership of the Intellectual Property vests in the
State and shall take no affirmative actions that might have the effect of vesting all or
part of the Intellectual Property in any entity other than the State. The Intellectual
Property shall not be disclosed by contractor or its subcontractor(s) to any entity not the
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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 and Nationality Act. The contractor shall comply with all federal,
state and local immigration laws and regulations relating to the immigration status of
their employees during the term of the contract. Further, the contractor shall flow down
this requirement to all subcontractors utilized during the term of the contract. The State
shall retain the right to perform random audits of contractor and subcontractor records
or to inspect papers of any employee thereof to ensure compliance. Should the State
determine that the contractor and/or any subcontractors be found noncompliant, the
State may pursue all remedies allowed by law, including, but not limited to; suspension
of work, termination of the contract for default and suspension and/or debarment of
the contractor.
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 of Work Prohibited.
Any services that are described in the specifications or scope of work that directly serve
the 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.
4. Costs and Payments
4.1. Payments. Payments shall comply with the requirements of A.R.S. Titles 35 and 41, Net
30 days. Upon receipt and acceptance of goods or services, the Contractor shall submit
a complete and accurate invoice for payment from the State within thirty (30) days.
4.2. Delivery. Unless stated otherwise in the Contract, all prices shall be F.O.B. Destination
and shall include all freight delivery and unloading at the destination.
4.3. Applicable Taxes.
4.3.1. Payment of Taxes. The Contractor shall be responsible for paying all applicable
taxes.
4.3.2. State and Local Transaction Privilege Taxes. The State of Arizona is subject to all
applicable state and local transaction privilege taxes. Transaction privilege taxes
apply to the sale and are the responsibility of the seller to remit. Failure to
collect such taxes from the buyer does not relieve the seller from its obligation
to remit taxes.
4.3.3. Tax Indemnification. Contractor and all subcontractors shall pay all Federal,
state and local taxes applicable to its operation and any persons employed by
the Contractor. Contractor shall, and require all subcontractors to hold the
State harmless from any responsibility for taxes, damages and interest, if
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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 for the Next State fiscal year. Funds may not presently be available
for performance under this Contract beyond the current state fiscal year. No legal
liability on the part of the State for any payment may arise under this Contract beyond
the current state fiscal year until funds are made available for performance of this
Contract.
4.5. Availability of Funds for the current State fiscal year. Should the State Legislature enter
back into session and reduce the appropriations or for any reason and these goods or
services are not funded, the State may take any of the following actions:
4.5.1. Accept a decrease in price offered by the contractor;
4.5.2. Cancel the Contract; or
4.5.3. Cancel the contract and re-solicit the requirements.
5. Contract Changes
5.1. Amendments. This Contract is issued under the authority of the Procurement Officer
who signed this Contract. The Contract may be modified only through a Contract
Amendment within the scope of the Contract. Changes to the Contract, including the
addition of work or materials, the revision of payment terms, or the substitution of work
or materials, directed by a person who is not specifically authorized by the procurement
officer in writing or made unilaterally by the Contractor are violations of the Contract and
of applicable law. Such changes, including unauthorized written Contract Amendments
shall be void and without effect, and the Contractor shall not be entitled to any claim
under this Contract based on those changes.
5.2. Subcontracts. The Contractor shall not enter into any Subcontract under this Contract for
the performance of this contract without the advance written approval of the
Procurement Officer. The Contractor shall clearly list any proposed subcontractors and
the subcontractor’s proposed responsibilities. The Subcontract shall incorporate by
reference the terms and conditions of this Contract.
5.3. Assignment and Delegation. The Contractor shall not assign any right nor delegate any
duty under this Contract without the prior written approval of the Procurement Officer.
The State shall not unreasonably withhold approval.
6. Risk and Liability
6.1. Risk of Loss: The Contractor shall bear all loss of conforming material covered under this
Contract until received by authorized personnel at the location designated in the
purchase order or Contract. Mere receipt does not constitute final acceptance. The risk
of loss for nonconforming materials shall remain with the Contractor regardless of
receipt.
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6.2. Indemnification
6.2.1. Contractor/Vendor Indemnification (Not Public Agency) The parties to this
contract agree that the State of Arizona, its departments, agencies, boards and
commissions shall be indemnified and held harmless by the contractor for the
vicarious liability of the State as a result of entering into this contract. However,
the parties further agree that the State of Arizona, its departments, agencies,
boards and commissions shall be responsible for its own negligence. Each party
to this contract is responsible for its own negligence.
6.2.2. Public Agency Language Only Each party (as 'indemnitor') agrees to indemnify,
defend, and hold harmless the other party (as 'indemnitee') from and against
any and all claims, losses, liability, costs, or expenses (including reasonable
attorney's fees) (hereinafter collectively referred to as 'claims') arising out of
bodily injury of any person (including death) or property damage but only to the
extent that such claims which result in vicarious/derivative liability to the
indemnitee, are caused by the act, omission, negligence, misconduct, or other
fault of the indemnitor, its officers, officials, agents, employees, or volunteers."
6.3. Indemnification - Patent and Copyright. The Contractor shall indemnify and hold
harmless the State against any liability, including costs and expenses, for infringement of
any patent, trademark or copyright arising out of Contract performance or use by the
State of materials furnished or work performed under this Contract. The State shall
reasonably notify the Contractor of any claim for which it may be liable under this
paragraph. If the contractor is insured pursuant to A.R.S. § 41-621 and § 35-154, this
section shall not apply.
6.4. Force Majeure.
6.4.1 Except for payment of sums due, neither party shall be liable to the other nor
deemed in default under this Contract if and to the extent that such party’s
performance of this Contract is prevented by reason of force majeure. The term
“force majeure” means an occurrence that is beyond the control of the party
affected and occurs without its fault or negligence. Without limiting the
foregoing, force majeure includes acts of God; acts of the public enemy; war;
riots; strikes; mobilization; labor disputes; civil disorders; fire; flood; lockouts;
injunctions-intervention-acts; or failures or refusals to act by government
authority; and other similar occurrences beyond the control of the party
declaring force majeure which such party is unable to prevent by exercising
reasonable diligence.
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
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6.4.2.3. Inability of either the Contractor or any subcontractor to acquire or
maintain any required insurance, bonds, licenses or permits.
6.4.3. If either party is delayed at any time in the progress of the work by force
majeure, the delayed party shall notify the other party in writing of such delay,
as soon as is practicable and no later than the following working day, of the
commencement thereof and shall specify the causes of such delay in such
notice. Such notice shall be delivered or mailed certified-return receipt and
shall make a specific reference to this article, thereby invoking its provisions.
The delayed party shall cause such delay to cease as soon as practicable and
shall notify the other party in writing when it has done so. The time of
completion shall be extended by Contract Amendment for a period of time
equal to the time that results or effects of such delay prevent the delayed party
from performing in accordance with this Contract.
6.4.4. Any delay or failure in performance by either party hereto shall not constitute
default hereunder or give rise to any claim for damages or loss of anticipated
profits if, and to the extent that such delay or failure is caused by force majeure.
6.5. Third Party Antitrust Violations. The Contractor assigns to the State any claim for
overcharges resulting from antitrust violations to the extent that those violations
concern materials or services supplied by third parties to the Contractor, toward
fulfillment of this Contract.
7. Warranties
7.1. Liens. The Contractor warrants that the materials supplied under this Contract are free
of liens and shall remain free of liens.
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 With Applicable Laws. The materials and services supplied under this
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Contract shall comply with all applicable Federal, state and local laws, and the
Contractor shall maintain all applicable license and permit requirements.
7.6. Survival of Rights and Obligations after Contract Expiration or Termination.
7.6.1. Contractor's Representations and Warranties. All representations and
warranties made by the Contractor under this Contract shall survive the
expiration or termination hereof. In addition, the parties hereto acknowledge
that pursuant to A.R.S. § 12-510, except as provided in A.R.S. § 12-529, the
State is not subject to or barred by any limitations of actions prescribed in
A.R.S., Title 12, Chapter 5.
7.6.2. Purchase Orders. The Contractor shall, in accordance with all terms and
conditions of the Contract, fully perform and shall be obligated to comply with
all purchase orders received by the Contractor prior to the expiration or
termination hereof, unless otherwise directed in writing by the Procurement
Officer, including, without limitation, all purchase orders received prior to but
not fully performed and satisfied at the expiration or termination of this
Contract.
8. State's Contractual Remedies
8.1. Right to Assurance. If the State in good faith has reason to believe that the Contractor
does not intend to, or is unable to perform or continue performing under this Contract,
the Procurement Officer may demand in writing that the Contractor give a written
assurance of intent to perform. Failure by the Contractor to provide written assurance
within the number of Days specified in the demand may, at the State’s option, be the
basis for terminating the Contract under the Uniform Terms and Conditions or other
rights and remedies available by law or provided by the contract.
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 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 Remedies. The rights and the remedies of the State under this Contract
are not exclusive.
8.4. Nonconforming Tender. Materials or services supplied under this Contract shall fully
comply with the Contract. The delivery of materials or services or a portion of the
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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. Contract Termination
9.1. Cancellation for Conflict of Interest. Pursuant to A.R.S. § 38-511, the State may cancel
this Contract within three (3) years after Contract execution without penalty or further
obligation if any person significantly involved in initiating, negotiating, securing, drafting
or creating the Contract on behalf of the State is or becomes at any time while the
Contract or an extension of the Contract is in effect an employee of or a consultant to
any other party to this Contract with respect to the subject matter of the Contract. The
cancellation shall be effective when the Contractor receives written notice of the
cancellation unless the notice specifies a later time. If the Contractor is a political
subdivision of the State, it may also cancel this Contract as provided in A.R.S. § 38-511.
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 Debarment. The State may, by written notice to the Contractor,
immediately terminate this Contract if the State determines that the Contractor has
been debarred, suspended or otherwise lawfully prohibited from participating in any
public procurement activity, including but not limited to, being disapproved as a
subcontractor of any public procurement unit or other governmental body. Submittal of
an offer or execution of a contract shall attest that the contractor is not currently
suspended or debarred. If the contractor becomes suspended or debarred, the
contractor shall immediately notify the State.
9.4. Termination for Convenience. The State reserves the right to terminate the Contract, in
whole or in part at any time when in the best interest of the State, without penalty or
recourse. Upon receipt of the written notice, the Contractor shall stop all work, as
directed in the notice, notify all subcontractors of the effective date of the termination
and minimize all further costs to the State. In the event of termination under this
paragraph, all documents, data and reports prepared by the Contractor under the
Contract shall become the property of and be delivered to the State upon demand. The
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Contractor shall be entitled to receive just and equitable compensation for work in
progress, work completed and materials accepted before the effective date of the
termination. The cost principles and procedures provided in A.A.C. R2-7-701 shall apply.
9.5. Termination for Default.
9.5.1. In addition to the rights reserved in the contract, the State may terminate the
Contract in whole or in part due to the failure of the Contractor to comply with
any term or condition of the Contract, to acquire and maintain all required
insurance policies, bonds, licenses and permits, or to make satisfactory progress
in performing the Contract. The Procurement Officer shall provide written
notice of the termination and the reasons for it to the Contractor.
9.5.2. Upon termination under this paragraph, all goods, materials, documents, data
and reports prepared by the Contractor under the Contract shall become the
property of and be delivered to the State on demand.
9.5.3. The State may, upon termination of this Contract, procure, on terms and in the
manner that it deems appropriate, materials or services to replace those under
this Contract. The Contractor shall be liable to the State for any excess costs
incurred by the State in procuring materials or services in substitution for those
due from the Contractor.
9.6. Continuation of Performance Through Termination. The Contractor shall continue to
perform, in accordance with the requirements of the Contract, up to the date of
termination, as directed in the termination notice.
10. 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. 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. 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 201, Phoenix, Arizona,
85007.
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1. INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA) TERMS
The following provisions include, in part, certain Standard Terms and Conditions required by DOT,
whether or not expressly set forth in the preceding contract provisions. All contractual provisions
required by DOT, as set forth in FTA Circular 4220 available at:
https://www.transit.dot.gov/regulations-and-guidance/fta-circulars/third-party-contracting-
guidance are hereby incorporated by reference. Anything to the contrary herein notwithstanding,
all FTA mandated terms shall be deemed to control in the event of a conflict with other provisions
contained in this Agreement. The Contractor shall not perform any act, fail to perform any act, or
refuse to comply with any (name of grantee) requests which would cause (name of grantee) to be
in violation of the FTA terms and conditions.
The Federal Terms and Conditions under this Contract shall be incorporated in any sub-contractor,
or lower-tier agreement for any federally-funded task assignment / project awarded under this
Contract.
2. NO FEDERAL GOVERNMENT OBLIGATIONS TO THIRD PARTIES
The Department and Contractor acknowledge and agree that, notwithstanding any concurrence b
the Federal Government in or approval of the solicitation or award of the underlying contract,
absent the express written consent by the Federal Government, the Federal Government is not a
party to this contract and shall not be subject to any obligations or liabilities to the Department,
Contractor, or any other party (whether or not a party to that contract) pertaining to any matter
resulting from the underlying contract.
The Contractor agrees to include the above clause in each subcontract financed in whole or in part
with Federal assistance provided by Federal Funding Agency. It is further agreed that the clause
shall not be modified, except to identify the subcontractor who will be subject to its provisions.
3. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED ACTS
Contractor acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as
amended, 31 USC 3801 et seq. and USDOT regulations, "Program Fraud Civil Remedies," 49 CFR 31,
apply to its actions pertaining to this project.
Upon execution of the underlying contract, contractor certifies or affirms the truthfulness and
accuracy of any statement it has made, it makes, it may make, or causes to be made, pertaining to
the underlying contract or FTA assisted project for which this contract work is being performed. In
addition to other penalties that may be applicable, contractor further acknowledges that if it
makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submittal, or
certification, the US Government reserves the right to impose the penalties of the Program Fraud
Civil Remedies Act (1986) on contractor to the extent the US Government deems appropriate.
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The Contractor also acknowledges that if it makes, or causes to be made, a false, fictitious, or
fraudulent claim, statement, submission, or certification to the Federal Government under a
contract connected with a project that is financed in whole or in part with Federal assistance
originally awarded by FTA under the authority of 49 U.S.C. § 5307, the Government reserves the
right to impose the penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5307(n)(1) (5323(I)) on the
Contractor, to the extent the Federal Government deems appropriate.
Contractor shall include the above two clauses in each subcontract financed in whole or in part
with FTA assistance. The clauses shall not be modified, except to identify the subcontractor who
will be subject to the provisions.
4. ACCESS TO RECORDS AND REPORTS
The following access to records requirements apply to this Contract:
1. Where the Purchaser is not a State but a local government and is the FTA Recipient or a
subgrantee of the FTA Recipient in accordance with 49 C. F. R. 18.36(i), the Contractor shall -
provide the Purchaser, the FTA, the US Comptroller General or their authorized representatives
access to any books, documents, papers and contractor records which are pertinent to this
contract for the purposes of making audits, examinations, excerpts and transcriptions.
Contractor shall also , pursuant to 49 C. F. R. 633.15, provide authorized FTA representative
including any PMO Contractor access to Contractor's records and construction sites pertaining
to a capital project, defined at 49
U.S.C. 5302(a)1, which is receiving assistance through the programs described at 49 U.S.C.
5307, 5309 or 5311.
2. Where the Purchaser is a State and is the FTA Recipient or a subgrantee of the FTA Recipient in
accordance with 49 C.F.R. 633.15, Contractor shall provide the Purchaser, authorized FTA
representatives, including any PMO Contractor, access to the Contractor's records and
construction sites pertaining to a major capital project, defined at 49 U.S.C. 5302(a)1, which
receives FTA assistance through the programs described at 49 U.S.C. 5307, 5309 or 5311. By
definition, a major capital project excludes contracts of less than the simplified acquisition
threshold currently set at
$250,000.00.
3. Where the Purchaser enters into a negotiated contract for other than a small purchase or
under the simplified acquisition threshold and is an institution of higher education, a hospital
or other non- profit organization and is the FTA Recipient or a subgrantee of the FTA Recipient
in accordance with 49 C.F.R. 19.48, Contractor shall provide the Purchaser, FTA, the US
Comptroller General or their authorized representatives with access to any books, documents,
papers and record of the Contractor which are directly pertinent to this contract for the
purposes of making audits, examinations, excerpts and transcriptions.
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4. Where a Purchaser which is the FTA Recipient or a subgrantee of the FTA Recipient
in accordance with 49 U.S.C. 5325(a) enters into a contract for a capital project
or improvement (defined at 49 U.S.C. 5302(a)1) through other than competitive
bidding, the Contractor shall make available records related to the contract to the
Purchaser, the Secretary of USDOT and the US Comptroller General or any
authorized officer or employee of any of them for the purposes of conducting an
audit and inspection.
5. Contractor shall permit any of the foregoing parties to reproduce by any means
whatsoever or to copy excerpts and transcriptions as reasonably needed.
6. The Contractor shall retain, and shall require its subcontractors at all tiers, all
books, records, accounts and reports required under this contract for a period of
not less than five years after the date of termination or expiration of this contract,
except in the event of litigation or settlement of claims arising from the
performance of this contract, in which case Contractor agrees to maintain same
until the Purchaser, the FTA Administrator, the Comptroller General, or any of
their duly authorized representatives, have disposed of all such litigation, appeals,
claims or exceptions related thereto. Reference 49 CFR 18.39(i)(11).
5. TERMS OF THE MASTER AGREEMENT AND COMPLIANCE
Contractor shall at all times comply with all applicable Federal Funding Agency laws,
regulations, policies, procedures and directives, including without limitation those
listed directly or by reference in the Master Agreement, available at
https://www.transit.dot.gov/funding/grantee-resources/sample-fta- agreements/fta-
grant-agreements, between the Department and FTA, as they may be amended or
promulgated from time to time during the term of this contract. This Master
Agreement does not have an Expiration Date. This Master Agreement continues to
apply to the Recipient and its Underlying Agreement, until modified or superseded by
a more recently enacted or issued applicable federal law, regulation, requirement, or
guidance, or amendment to this Master Agreement or the Underlying Agreement. To
assure compliance the Recipient must take measures to assure that other participants
in its Underlying Agreements (e.g., Third Party Participants) comply. Contractor's
failure to so comply shall constitute a material breach of this contract.
All contractual provisions required by the U.S. Department of Transportation are
hereby incorporated by reference. In the event of additional funding provided by
FHWA, the applicable requirements of the Stewardship Agreement, available at
https://www.fhwa.dot.gov/federalaid/stewardship, between the Department and
FHWA are incorporated by reference.
6. CIVIL RIGHTS REQUIREMENTS
The AGENCY is an Equal Opportunity Employer. As such, the AGENCY agrees to comply
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with all applicable Federal civil rights laws and implementing regulations. Apart from
inconsistent requirements imposed by Federal laws or regulations, the AGENCY
agrees to comply with the requirements of 49 U.S.C. § 5323(h) (3) by not using any
Federal assistance awarded by FTA to support procurements using exclusionary or
discriminatory specifications.
Under this Agreement, the Contractor shall at all times comply with the following
requirements and shall include these requirements in each subcontract entered into
as part thereof.
Equal Employment Opportunity
1. Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended,
42 U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended,
42 U.S.C. § 6102, section 202 of the Americans with Disabilities Act of 1990, 42
U.S.C. § 12132, and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees
that it will not discriminate against any employee or applicant for employment
because of race, color, religion, national origin, sex(including sexual orientation
and gender identity), age, or disability. In addition, the Contractor agrees to
comply with applicable Federal implementing regulations and other implementing
requirements Federal Funding Agency may issue.
2. Race, Color, religion, National Origin, Sex - In accordance with Title VII of the Civil
Rights Act, as amended, 42 U.S.C. § 2000e, and Federal transit laws at 49 U.S.C. §
5332, the Contractor agrees to comply with all applicable equal employment
opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations,
"Office of Federal Contract Compliance Programs, Equal Employment Opportunity,
Department of Labor," 41 C.F.R. Parts 60 et seq., (which implement Executive
Order No. 11246, "Equal Employment Opportunity," as amended by Executive
Order No. 11375, "Amending Executive Order 11246 Relating to Equal
Employment Opportunity," 42 U.S.C. § 2000e note), and with any applicable
Federal statutes, executive orders, regulations, and Federal policies that may in
the future affect construction activities undertaken in the course of the Project.
The Contractor agrees to take affirmative action to ensure that applicants are
employed, and that employees are treated during employment, without regard to
their race, color, creed, national origin, sex, or age. Such action shall include, but
not be limited to, the following: employment, upgrading, demotion or transfer,
recruitment or recruitment advertising, layoff or termination; rates of pay or other
forms of compensation; and selection for training, including apprenticeship. In
addition, the Contractor agrees to comply with any implementing requirements
Federal Funding Agency may issue.
3. Age - In accordance with section 4 of the Age Discrimination in Employment Act of
1967, as amended, 29 U.S.C. § 623 and Federal transit law at 49 U.S.C. § 5332, the
Contractor agrees to refrain from discrimination against present and prospective
employees for reason of age. In addition, the Contractor agrees to comply with
any implementing requirements Federal Funding Agency may issue.
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4. Disabilities - In accordance with section 102 of the Americans with Disabilities Act, as
amended, 42
U.S.C. § 12112, the Contractor agrees that it will comply with the requirements of
U.S. Equal Employment Opportunity Commission, "Regulations to Implement the
Equal Employment Provisions of the Americans with Disabilities Act," 29 C.F.R.
Part 1630, pertaining to employment of persons with disabilities. In addition, the
Contractor agrees to comply with any implementing requirements Federal Funding
Agency may issue.
The Contractor also agrees to include these requirements in each subcontract
financed in whole or in part with Federal assistance provided, modified only if
necessary to identify the affected parties.
7. TERMINATION
Termination of the contract shall be in accordance with the Uniform Terms and
Conditions, Section 9., paragraph 9.1 through 9.6.
8. DEBARMENT OR SUSPENSION
This contract is a covered transaction for purposes of 49 CFR Part 29. As such, the
contractor is required to verify that none of the contractor, its principals, as defined at
49 CFR 29.995, or affiliates, as defined at 49 CFR 29.905, are excluded or disqualified
as defined at 49 CFR 29.940and 29.945. The contractor is required to comply with 49
CFR 29, Subpart C and must include the requirement to comply with 49 CFR 29,
Subpart C in any lower tier covered transaction it enters into.
As such, the Contractor shall verify that its principals, affiliates, and subcontractors are
eligible to participate in this federally funded contract and are not presently declared
by any Federal department or agency to be:
a) Debarred from participation in any federally assisted Award;
b) Suspended from participation in any federally assisted Award;
c) Proposed for debarment from participation in any federally assisted Award;
d) Declared ineligible to participate in any federally assisted Award;
e) Voluntarily excluded from participation in any federally assisted Award; or
f) Disqualified from participation in ay federally assisted Award.
By signing and submitting its bid or proposal, the bidder or proposer certifies as follows:
The certification in this clause is a material representation of fact relied upon by the
Department. If it is later determined that the bidder or proposer knowingly rendered
an erroneous certification, in addition to remedies available to the Department, the
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Federal Government may pursue available remedies, including but not limited to
suspension and/or debarment. The bidder or proposer agrees to comply with the
requirements of 49 CFR 29, Subpart C while this offer is valid and throughout the
period of any contract that may arise from this offer. The bidder or proposer further
agrees to include a provision requiring such compliance in its lower tier covered
transactions.
8.1 GOVERNMENT-WIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
The Contractor agrees to the following:
(1) It will comply with the requirements of 2 C.F.R. part 180, subpart C, as
adopted and supplemented by U.S. DOT regulations at 2 C.F.R. part 1200,
which include the following:
(a) It will not enter into any arrangement to participate in the development or
implementation of the Project with any Third Party Participant that is
debarred or suspended except as authorized by: 1 U.S. DOT regulations,
“Nonprocurement Suspension and Debarment,” 2 C.F.R. part 1200, 2
U.S. OMB, “Guidelines to Agencies on Government wide Debarment and
Suspension (Nonprocurement),” 2 C.F.R. part 180, including any
amendments thereto, and 3 Executive Orders Nos. 12549 and 12689,
“Debarment and Suspension,” 31 U.S.C. § 6101 note,
(b) It will review the U.S. GSA “System for Award Management,”
https://www.sam.gov, if required by U.S. DOT regulations, 2 C.F.R. part
1200, and
(c) It will include, and require each of its Third Party Participants to include, a
similar provision in each lower tier covered transaction, ensuring that each
lower tier Third Party Participant:
(1) Will comply with Federal debarment and suspension
requirements, and 2 Reviews the “System for Award
Management” at https://www.sam.gov, if necessary to
comply with U.S. DOT regulations, 2 C.F.R. part 1200, and
If the Department suspends, debars, or takes any
similar action against a Third Party Participant or
individual, the Department will provide immediate
written notice to the:
(a) FTA Regional Counsel for the Region in which
the Recipient is located or implements the
Project,
(b) FTA Project Manager if the Project is
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administered by an FTA Headquarters Office,
or
(c) FTA Chief Counsel.
9. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL WATER
POLLUTION CONTROL ACT Clean Water
Contractor shall comply with all applicable standards, orders or regulations issued
pursuant to the Federal Water Pollution Control Act, as amended, 33 USC 1251 et seq.
Contractor shall report each violation to the recipient and understands and agrees
that the recipient shall, in turn, report each violation as required to FTA and the
appropriate EPA Regional Office. Contractor shall include these requirements in each
subcontract exceeding $150,000 financed in whole or in part with FTA assistance.
Clean Air
1) Contractor shall comply with all applicable standards, orders or regulations
pursuant to the Clean Air Act, 42 USC 7401 et seq. Contractor shall report each
violation to the recipient and understands and agrees that the recipient will, in
turn, report each violation as required to FTA and the appropriate EPA
Regional Office.
2) Contractor shall include these requirements in each subcontract exceeding
$150,000 financed in whole or in part with FTA assistance.
10. BUY AMERICA
In any task assignment / project for construction, acquisition of goods, or rolling stock
valued at more than $150,000, the contractor agrees to comply with 49 U.S.C. 5323(j)
and 49 C.F.R. part 661, which provide that Federal funds may not be obligated unless
all steel, iron, and manufactured products used in FTA funded projects are produced in
the United States, unless a waiver has been granted by FTA or the product is subject to
a general waiver. General waivers are listed in 49 C.F.R. § 661.7. Separate
requirements for rolling stock are set out at 49 U.S.C. 5323(j)(2)(C) and 49 C.F.R. §
661.11.
Contractor shall comply with 49 USC 5323(j) and 49 CFR 661, stating that Federal funds
may not be obligated unless steel, iron, and manufactured products used in FTA-
funded projects are produced in the United States, unless a waiver has been granted
by FTA or the product is subject to a general waiver. General waivers are listed in 49
CFR 661.7, and include software, microcomputer equipment and small purchases
(currently less than $150,000) made with capital, operating, or planning funds.
Separate requirements for rolling stock are stated at 5323(j)(2)(C) and 49 CFR
661.11. Rolling stock must be manufactured in the US and have a minimum 65%
domestic content for FY2019 and a minimum 70% domestic content for FY2020 and
beyond. A bidder or offeror shall submit appropriate Buy America certification to the
recipient with all bids on FTA-funded contracts, except those subject to a general
waiver. Proposals not accompanied by a completed a certification shall be rejected as
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nonresponsive. This requirement does not apply to lower tier subcontractors.
11. BREACHES AND DISPUTE RESOLUTION
The duties and obligations imposed by the Contract Documents and the rights and
remedies available thereunder shall be in addition to and not a limitation of any
duties, obligations, rights and remedies otherwise imposed or available by law. No
action or failure to act by the (Recipient), (Architect) or Contractor shall constitute a
waiver of any right or duty afforded any of them under the Contract, nor shall any
such action or failure to act constitute an approval of or acquiescence in any breach
thereunder, except as may be specifically agreed in writing.
Disputes arising in the performance of this contract which are not resolved by
agreement of the parties shall be decided in writing by the Department. This decision
shall be final and conclusive unless within ten days from the date of receipt of its copy,
contractor mails or otherwise furnishes a written appeal to the Department. In
connection with such appeal, contractor shall be afforded an opportunity to be heard
and to offer evidence in support of its position. The decision of the Department shall
be binding upon contractor and contractor shall abide by the decision. FTA has a
vested interest in the settlement of any violation of Federal law including the False
Claims Act, 31 U.S.C. § 3729.
Performance During Dispute - Unless otherwise directed by the recipient, contractor
shall continue performance under this contract while matters in dispute are being
resolved. Claims for Damages - Should either party to the contract suffer injury or
damage to person or property because of any act or omission of the party or of any of
its employees, agents or others for whose acts it is legally liable, a claim for damages
therefore shall be made in writing to such other party within ten days after the first
observance of such injury or damage.
Remedies - Unless this contract provides otherwise, all claims, counterclaims, disputes
and other matters in question between the Department and contractor arising out of
or relating to this agreement or its breach will be decided by arbitration if the parties
mutually agree, or in a court of competent jurisdiction within the residing State.
Rights and Remedies - Duties and obligations imposed by the contract documents and
the rights and remedies available thereunder shall be in addition to and not a
limitation of any duties, obligations, rights and remedies otherwise imposed or
available by law. No action or failure to act by the Department or contractor shall
constitute a waiver of any right or duty afforded any of them under the contract, nor
shall any such action or failure to act constitute an approval of or acquiescence in any
breach thereunder, except as may be specifically agreed in writing.
12. LOBBYING
The Contractor agrees to comply with the provisions of Title 31, U.S. C 1352 as
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amended by the Lobbying Disclosure Act of 1995, P.L. 104-65 [to be codified at 2
U.S.C. 1601, et seq.] and (Public Law 101.121) as codified in Title 48, Federal
Acquisition Regulations Subpart 3.8 and Subpart 52.203-11. The legislation prohibits
Federal funds from being expended by a recipient or any lower tier sub- recipients of
a Federal contract, grant, loan, or cooperative agreement to pay any person for
influencing or attempting to influence a Federal agency or Congress in connection
with the award of any Federal contract, the making of any Federal grant or loan, or
entering into any cooperative agreement, including the extension, continuation,
renewal, amendment or modification of any Federal contract, grant, loan or
cooperative agreement. All disclosure statements are to be furnished to the
Department.
Contractors who apply or propose/bid for an award of $100,000 or more in value shall
file the attached Lobbying Certification {01Lobbying Certification document} required
by 49 CFR part 20, "New Restrictions on Lobbying." 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 shall also disclose the name of any
registrant under the Lobbying Disclosure Act of 1995 who has made lobbying contacts
on its behalf with non-Federal funds with respect to that Federal contract, grant or
award covered by 31 U.S.C. 1352. Such disclosures are forwarded from tier to tier up
to the recipient.
13. FLY AMERICA
The Contractor agrees to comply with 49 U.S.C. 40118 (the "Fly America" Act) in
accordance with the General Services Administration's regulations at 41 CFR Part
301-10, which provide that recipients of Federal funds and their contractors are
required to use U.S. Flag air carriers for U.S Government- financed international air
travel and transportation of their personal effects or property, to the extent such
service is available, unless travel by foreign air carrier is a matter of necessity, as
defined by the Fly America Act. The Contractor shall submit, if a foreign air carrier
was used, an appropriate certification or memorandum adequately explaining why
service by a U.S. flag air carrier was not
available or why it was necessary to use a foreign air carrier and shall, in any event,
provide a certificate of compliance with the Fly America requirements. The
Contractor agrees to include the requirements of this section in all subcontracts that
may involve international air transportation.
14. ENERGY CONSERVATION
The contractor agrees to comply with mandatory standards and policies relating to
energy efficiency, stated in the state energy conservation plan issued in compliance
with the Energy Policy and Conservation Act.
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15. CONFLICTS OF INTEREST / EMPLOYMENT OF FEDERAL PERSONNEL
Contractors will maintain a written code of standards of conduct governing the
performance of their employees engaged in the award and administration of
contracts. No employee, officer or agent of the Department or the Federal funding
agency shall participate in selection, or in the award or administration of a contract
supported by Federal funds if a conflict of interest, real or apparent, would be
involved. Such a conflict would arise when: The employee, officer or agent, any
member of his immediate family, His or her partner, or an organization which
employs, or is about to employ, any of the above, has a financial or other interest in
the firm selected for award. Department officers, employees or agents will neither
solicit nor accept gratuities, favors or anything of monetary value from contractors,
potential contractors, or parties to subagreements.
16. COPYRIGHT AND PATENT
To the extent permitted by A.R.S. § 41-621 and § 35-154, the Contractor shall
indemnify and hold harmless ADOT against any liability, including costs and expenses,
for infringement of any patent, trademark or copyright arising out of this contract
performance or use by ADOT of materials furnished or work performed under this
contract. ADOT shall reasonably notify the Contractor of any claim for which it may be
liable under this paragraph.
Copyrights pursuant to 23 CFR 420.121 (b): The Department, as a State DOT may
copyright any books, publications, or other copyrightable materials developed in the
course of the project, and does herein exercise that right. The federal funding agency
reserves a royalty-free, nonexclusive and irrevocable right to reproduce, publish, or
otherwise use, and to authorize others to use, the work for Government purposes.
Patents pursuant to 23 CFR 420.121 (i): The Department, as a State DOT is subject to
the provisions of 37 CFR part 401 governing patents and inventions and must include
or cite the standard patent rights clause at 37 CFR 401.14, except for §401.14(g), in all
subgrants or contracts. In addition, State DOTs must include the following clause,
suitably modified to identify the parties, in all subgrants or contracts, regardless of
tier, for experimental, developmental or research work: “The subgrantee or contractor
will retain all rights provided for the State in this clause, and the State will not, as part
of the consideration for awarding the subgrant or contract, obtain rights in the
subgrantee's or contractor's subject inventions.”
Standard Patent Rights required pursuant to 37 CFR 401.14:
(a) Definitions
(1) Invention means any invention or discovery which is or may be patentable or
otherwise protectable under Title 35 of the United States Code, or any novel variety of
plant which is or may be protected under the Plant Variety Protection Act (7 U.S.C.
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2321 et seq.).
(2) Subject invention means any invention of the contractor conceived or first actually
reduced to practice in the performance of work under this contract, provided that in
the case of a variety of plant, the date of determination (as defined in section 41(d) of
the Plant Variety Protection Act, 7 U.S.C. 2401(d)) must also occur during the period of
contract performance.
(3) Practical Application means to manufacture in the case of a composition or
product, to practice in the case of a process or method, or to operate in the case o f a
machine or system; and, in each case, under such conditions as to establish that the
invention is being utilized and that its benefits are, to the extent permitted by law or
government regulations, available to the public on reasonable terms.
(4) Made when used in relation to any invention means the conception or first actual
reduction to practice of such invention.
(5) Small Business Firm means a small business concern as defined at section 2 of Pub. L.
85-536 (15
U.S.C. 632) and implementing regulations of the Administrator of the Small Business
Administration. For the purpose of this clause, the size standards for small business
concerns involved in government procurement and subcontracting at 13 CFR 121.3-8
and 13 CFR 121.3-12, respectively, will be used.
(6) Nonprofit Organization means a university or other institution of higher education
or an organization of the type described in section 501(c)(3) of the Internal Revenue
Code of 1954 (26 U.S.C. 501(c) and exempt from taxation under section 501(a) of the
Internal Revenue Code (25 U.S.C. 501(a)) or any nonprofit scientific or educational
organization qualified under a state nonprofit organization statute.
(7) The term statutory period means the one-year period before the effective filing
date of a claimed invention during which exceptions to prior art exist per 35 U.S.C.
102(b) as amended by the Leahy-Smith America Invents Act, Public Law 112-29.
(8) The term contractor means any person, small business firm or nonprofit
organization, or, as set forth in section 1, paragraph (b)(4) of Executive Order 12591,
as amended, any business firm regardless of size, which is a party to a funding
agreement.
(b) Allocation of Principal Rights
The Contractor may retain the entire right, title, and interest throughout the world to
each subject invention subject to the provisions of this clause and 35 U.S.C. 203. With
respect to any subject invention in which the Contractor retains title, the Federal
government shall have a nonexclusive, nontransferable, irrevocable, paid-up license to
practice or have practiced for or on behalf of the United States the subject invention
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throughout the world.
(c) Invention Disclosure, Election of Title and Filing of Patent Application by Contractor
(1) The contractor will disclose each subject invention to the Federal Agency within
two months after the inventor discloses it in writing to contractor personnel
responsible for patent matters. The disclosure to the agency shall be in the form of a
written report and shall identify the contract under which the invention was made and
the inventor(s). It shall be sufficiently complete in technical detail to convey a clear
understanding to the extent known at the time of the disclosure, of the nature,
purpose, operation, and the physical, chemical, biological or electrical characteristics
of the invention. The disclosure shall also identify any publication, on sale or public use
of the invention and whether a manuscript describing the invention has been
submitted for publication and, if so, whether it has been accepted for publication at
the time of disclosure. In addition, after disclosure to the agency, the Contractor will
promptly notify the agency of the acceptance of any manuscript describing the
invention for publication or of any on sale or public use planned by the contractor.
(2) The contractor will elect in writing whether or not to retain title to any such
invention by notifying the Federal agency within two years of disclosure to the Federal
agency. However, in any case where a patent, a printed publication, public use, sale,
or other availability to the public has initiated the one year statutory period wherein
valid patent protection can still be obtained in the United States, the period for
election of title may be shortened by the agency to a date that is no m ore than 60
days prior to the end of the statutory period.
(3) The contractor will file its initial patent application on a subject invention to which
it elects to retain title within one year after election of title or, if earlier, prior to the
end of any statutory period wherein valid patent protection can be obtained in the
United States after a publication, on sale, or public use. If the contractor files a
provisional application as its initial patent application, it shall file a non-provisional
application within 10 months of the filing of the provisional application. The contractor
will file patent applications in additional countries or international patent offices
within either ten months of the first filed patent application or six months from the
date permission is granted by the Commissioner of Patents to file foreign patent
applications where such filing has been prohibited by a Secrecy Order.
(4) For any subject invention with Federal agency and contractor co-inventors, where
the Federal agency employing such co-inventor determines that it would be in the
interest of the government, pursuant to 35 U.S.C. 207(a)(3), to file an initial patent
application on the subject invention, the Federal agency employing such co-inventor,
at its discretion and in consultation with the contractor, may file such application at its
own expense, provided that the contractor retains the ability to elect title pursuant to
35 U.S.C. 202(a).
(5) Requests for extension of the time for disclosure, election, and filing under
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paragraphs (1), (2), and (3) of this clause may, at the discretion of the Federal agency,
be granted. When a contractor has requested an extension for filing a non-provisional
application after filing a provisional application, a one-year extension will be granted
unless the Federal agency notifies the contractor within 60 days of receiving the
request.
(d) Conditions When the Government May Obtain Title
The contractor will convey to the Federal agency, upon written request, title to any subject
invention—
(1) If the contractor fails to disclose or elect title to the subject invention within the
times specified in paragraph (c) of this clause, or elects not to retain title.
(2) In those countries in which the contractor fails to file patent applications within the
times specified in paragraph (c) of this clause; provided, however, that if the
contractor has filed a patent application in a country after the times specified in
paragraph (c) of this clause, but prior to its receipt of the written request of the
Federal agency, the contractor shall continue to retain title in that country.
(3) In any country in which the contractor decides not to continue the prosecution of
any non- provisional patent application for, to pay a maintenance, annuity or renewal
fee on, or to defend in a reexamination or opposition proceeding on, a patent on a
subject invention.
(e) Minimum Rights to Contractor and Protection of the Contractor Right to File
(1) The contractor will retain a nonexclusive royalty-free license throughout the world
in each subject invention to which the Government obtains title, except if the
contractor fails to disclose the invention within the times specified in (c), above. The
contractor's license extends to its domestic subsidiary and affiliates, if any, within the
corporate structure of which the contractor is a party and includes the right to grant
sublicenses of the same scope to the extent the contractor was legally obligated to do
so at the time the contract was awarded. The license is transferable only with the
approval of the Federal agency except when transferred to the sucessor of that party
of the contractor's business to which the invention pertains.
(2) The contractor's domestic license may be revoked or modified by the funding
Federal agency to the extent necessary to achieve expeditious practical application of
the subject invention pursuant to an application for an exclusive license submitted in
accordance with applicable provisions at 37 CFR part 404 and agency licensing
regulations (if any). This license will not be revoked in that field of use or the
geographical areas in which the contractor has achieved practical application and
continues to make the benefits of the invention reasonably accessible to the public.
The license in any foreign country may be revoked or modified at the discretion of the
funding Federal agency to the extent the contractor, its licensees, or the domestic
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subsidiaries or affiliates have failed to achieve practical application in that foreign
country.
(3) Before revocation or modification of the license, the funding Federal agency will
furnish the contractor a written notice of its intention to revoke or modify the license,
and the contractor will be allowed thirty days (or such other time as may be
authorized by the funding Federal agency for good cause shown by the contractor)
after the notice to show cause why the license should not be revoked or modified. The
contractor has the right to appeal, in accordance with applicable regulations in 37 CFR
part 404 and agency regulations (if any) concerning the licensing of Government-
owned inventions, any decision concerning the revocation or modification of the
license.
(f) Contractor Action to Protect the Government's Interest
(1) The contractor agrees to execute or to have executed and promptly deliver to the
Federal agency all instruments necessary to (i) establish or confirm the rights the
Government has throughout the world in those subject inventions to which the
contractor elects to retain title, and (ii) convey title to the Federal agency when
requested under paragraph (d) above and to enable the government to obtain patent
protection throughout the world in that subject invention.
(2) The contractor agrees to require, by written agreement, its employees, other than
clerical and nontechnical employees, to disclose promptly in writing to personnel
identified as responsible for the administration of patent matters and in a format
suggested by the contractor each subject invention made under contract in order that
the contractor can comply with the disclosure provisions of paragraph (c) of this
clause, to assign to the contractor the entire right, title and interest in and to each
subject invention made under contract, and to execute all papers necessary to file
patent applications on subject inventions and to establish the government's rights in
the subject inventions. This disclosure format should require, as a minimum, the
information required by paragraph (c)(1) of this clause. The contractor shall instruct
such employees through employee agreements or other suitable educational
programs on the importance of reporting inventions in sufficient time to permit the
filing of patent applications prior to U.S. or foreign statutory bars.
(3) For each subject invention, the contractor will, no less than 60 days prior to the
expiration of the statutory deadline, notify the Federal agency of any decision: Not to
continue the prosecution of a non- provisional patent application; not to pay a
maintenance, annuity or renewal fee; not to defend in a reexamination or opposition
proceeding on a patent, in any country; to request, be a party to, or take action in a
trial proceeding before the Patent Trial and Appeals Board of the U.S. Patent and
Trademark Office, including but not limited to post-grant review, review of a business
method patent, inter partes review, and derivation proceeding; or to request, be a
party to, or take action in a non-trial submission of art or information at the U.S.
Patent and Trademark Office, including but not limited to a pre-issuance submission, a
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post-issuance submission, and supplemental examination.
(4) The contractor agrees to include, within the specification of any United States
patent applications and any patent issuing thereon covering a subject invention, the
following statement, “This invention was made with government support under
(identify the contract) awarded by (identify the Federal agency). The government has
certain rights in the invention.”
(g) Subcontracts
(1) The contractor will include this clause, suitably modified to identify the parties, in
all subcontracts, regardless of tier, for experimental, developmental or research work
to be performed by a subcontractor.. The subcontractor will retain all rights provided
for the contractor in this clause, and the contractor will not, as part of the
consideration for awarding the subcontract, obtain rights in the subcontractor's
subject inventions.
(2) The contractor will include in all other subcontracts, regardless of tier, for
experimental developmental or research work the patent rights clause required by
(cite section of agency implementing regulations or FAR).
(3) In the case of subcontracts, at any tier, when the prime award with the Federal
agency was a contract (but not a grant or cooperative agreement), the agency,
subcontractor, and the contractor agree that the mutual obligations of the parties
created by this clause constitute a contract between the subcontractor and the
Federal agency with respect to the matters covered by the clause; provided, however,
that nothing in this paragraph is intended to confer any jurisdiction under the Contract
Disputes Act in connection with proceedings under paragraph (j) of this clause.
(h) Reporting on Utilization of Subject Inventions
The Contractor agrees to submit on request periodic reports no more frequently than
annually on the utilization of a subject invention or on efforts at obtaining such
utilization that are being made by the contractor or its licensees or assignees. Such
reports shall include information regarding the status of development, date of first
commercial sale or use, gross royalties received by the contractor, and such other data
and information as the agency may reasonably specify. The contractor also agrees to
provide additional reports as may be requested by the agency in connection with any
march-in proceeding undertaken by the agency in accordance with paragraph (j) of
this clause. As required by 35 U.S.C. 202(c)(5), the agency agrees it will not disclose
such information to persons outside the government without permission of the
contractor.
(i) Preference for United States Industry
Notwithstanding any other provision of this clause, the contractor agrees that neither
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it nor any assignee will grant to any person the exclusive right to use or sell any subject
inventions in the United States unless such person agrees that any products
embodying the subject invention or produced through the use of the subject invention
will be manufactured substantially in the United States. However, in individual cases,
the requirement for such an agreement may be waived by the Federal agency upon a
showing by the contractor or its assignee that reasonable but unsuccessful efforts
have been made to grant licenses on similar terms to potential licensees that would be
likely to manufacture substantially in the United States or that under the
circumstances domestic manufacture is not commercially feasible.
(j) March-in Rights
The contractor agrees that with respect to any subject invention in which it has
acquired title, the Federal agency has the right in accordance with the procedures in
37 CFR 401.6 and any supplemental regulations of the agency to require the
contractor, an assignee or exclusive licensee of a subject invention to grant a
nonexclusive, partially exclusive, or exclusive license in any field of use to a responsible
applicant or applicants, upon terms that are reasonable under the circumstances, and
if the contractor, assignee, or exclusive licensee refuses such a request the Federal
agency has the right to grant such a license itself if the Federal agency determines
that:
(1) Such action is necessary because the contractor or assignee has not taken, or is not
expected to take within a reasonable time, effective steps to achieve practical
application of the subject invention in such field of use.
(2) Such action is necessary to alleviate health or safety needs which are not
reasonably satisfied by the contractor, assignee or their licensees;
(3) Such action is necessary to meet requirements for public use specified by Federal
regulations and such requirements are not reasonably satisfied by the contractor,
assignee or licensees; or
(4) Such action is necessary because the agreement required by paragraph (i) of this
clause has not been obtained or waived or because a licensee of the exclusive right to
use or sell any subject invention in the United States is in breach of such agreement.
(k) Special Provisions for Contracts with Nonprofit Organizations
If the contractor is a nonprofit organization, it agrees that:
(1) Rights to a subject invention in the United States may not be assigned without the
approval of the Federal agency, except where such assignment is made to an
organization which has as one of its primary functions the management of inventions,
provided that such assignee will be subject to the same provisions as the contractor;
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(2) The contractor will share royalties collected on a subject invention with the
inventor, including Federal employee co-inventors (when the agency deems it
appropriate) when the subject invention is assigned in accordance with 35 U.S.C.
202(e) and 37 CFR 401.10;
(3) The balance of any royalties or income earned by the contractor with respect to
subject inventions, after payment of expenses (including payments to inventors)
incidental to the administration of subject inventions, will be utilized for the support
of scientific research or education; and
(4) It will make efforts that are reasonable under the circumstances to attract
licensees of subject inventions that are small business firms and that it will give a
preference to a small business firm when licensing a subject invention if the contractor
determines that the small business firm has a plan or proposal for marketing the
invention which, if executed, is equally as likely to bring the invention to practical
application as any plans or proposals from applicants that are not small business firms;
provided, that the contractor is also satisfied that the small business firm has the
capability and resources to carry out its plan or proposal. The decision whether to give
a preference in any specific case will be at the discretion of the contractor. However,
the contractor agrees that the Federal agency may review the contractor's licensing
program and decisions regarding small business applicants, and the contractor will
negotiate changes to its licensing policies, procedures, or practices with the Federal
agency when the Federal agency's review discloses that the contractor could take
reasonable steps to implement more effectively the requirements of this paragraph
(k)(4). In accordance with 37 CFR 401.7, the Federal agency or the contractor may
request that the Secretary review the contractor's licensing program and decisions
regarding small business applicants.
17. RECOVERED MATERIALS
The Contractor agrees to provide a preference for those products and services that
conserve natural resources, protect the environment, and are energy efficient by
complying with and facilitating compliance with Section 6002 of the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. § 6962, and U.S. Environmental
Protection Agency (U.S. EPA), “Comprehensive Procurement Guideline for Products
Containing Recovered Materials,” 40 C.F.R. part 247.
18. SAFE OPERATION OF MOTOR VEHICLES
a. Seat Belt Use. The Recipient agrees to implement Executive Order No. 13043,
“Increasing Seat Belt Use in the United States,” April 16, 1997, 23 U.S.C. § 402 note,
(62 Fed. Reg. 19217), by:
(1) Adopting and promoting on-the-job seat belt use policies and programs for
its employees and other personnel that operate company-owned vehicles,
company-rented vehicles, or personally operated vehicles, and
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(2) Including a “Seat Belt Use” provision in each third party agreement related to the
Award.
b. Distracted Driving, Including Text Messaging While Driving. The Recipient agrees to comply
with:
(1) Executive Order No. 13513, “Federal Leadership on Reducing Text
Messaging While Driving,” October 1, 2009, 23 U.S.C. § 402 note, (74 Fed.
Reg. 51225),
(2) U.S. DOT Order 3902.10, “Text Messaging While Driving,” December 30, 2009, and
(3) The following U.S. DOT Special Provision pertaining to Distracted Driving:
(a) Safety. The Recipient agrees to adopt and enforce workplace
safety policies to decrease crashes caused by distracted drivers,
including policies to ban text messaging while using an electronic
device supplied by an employer, and driving a vehicle the driver owns
or rents, a vehicle Recipient owns, leases, or rents, or a privately-
owned vehicle when on official business in connection with the
Award, or when performing any work for or on behalf of the Award,
(b) Recipient Size. The Recipient agrees to conduct workplace safety
initiatives in a manner commensurate with its size, such as
establishing new rules and programs to prohibit text messaging while
driving, re-evaluating the existing programs to prohibit text messaging
while driving, and providing education, awareness, and other outreach
to employees about the safety risks associated with texting while
driving, and
(c) Extension of Provision. The Recipient agrees to include the
preceding Special Provision of section 34.b(3)(a) – (b) of this Master
Agreement in its third party agreements, and encourage its Third Party
Participants to comply with this Special Provision, and include this
Special Provision in each third party subagreement at each tier
supported with federal assistance.
19. CERTIFICATION AND ASSURANCES
The FTA Certifications and Assurances are incorporated herein by reference. Upon
award or contract renewal, the Contractor must agree to comply with the most
current FTA Certifications and Assurances by signing and submitting the signature
page provided by the Department. In the event FTA issues new Certifications and
Assurances, the Department reserves the right to require submission of a new
signature page agreeing to comply; to be added to the terms and conditions by
Amendment. All such requests are a condition of continued award.
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20. DISADVANTAGED BUSINESS ENTERPRISES
1.0 Policy:
The Arizona Department of Transportation (hereinafter the Department) has
established a Disadvantaged Business Enterprise (DBE) program in accordance with
the regulations of the U.S. Department of Transportation (USDOT), 49 CFR Part 26. The
Department has received Federal financial assistance from the U.S. Department of
Transportation and as a condition of receiving this assistance, the Department has
signed an assurance that it will comply with 49 CFR Part 26.
It is the policy of the Department to ensure that DBEs, as defined in Part 26, have an
equal opportunity to receive and participate in USDOT-assisted contracts. It is also the
policy of the Department:
1. To ensure nondiscrimination in the award and administration of USDOT-assisted
contracts;
2. To create a level playing field on which DBEs can compete fairly for USDOT-assisted
contracts;
3. To ensure that the DBE program is narrowly tailored in accordance with applicable law;
4. To ensure that only firms that fully meet 49 CFR Part 26 eligibility standards
are counted as DBEs;
5. To help remove barriers to the participation of DBEs in USDOT-assisted contracts;
6. To assist in the development of firms that can compete successfully in the
market place outside the DBE program; and
7. To promote the use of DBEs in all types of federally-assisted contracts and
procurement activities.
It is also the policy of the Department to facilitate and encourage participation of
Small Business Concerns (SBCs), as defined herein, in USDOT-assisted contracts. The
Department encourages contractors to take reasonable steps to eliminate obstacles to
SBCs’ participation and to utilize SBCs in performing contracts.
2.0 Assurances of Non-Discrimination:
The contractor, subrecipient, or subcontractor shall not discriminate on the basis of
race, color, sex or national origin in the performance of this contract. The contractor
shall carry out applicable requirements of 49 CFR Part 26 in the award and
administration of DOT assisted contracts. Failure by the contractor to carry out these
requirements is a material breach of this contract, which may result in the termination
of this contract or such other remedy as the Department deems appropriate, which
may include, but are not limited to:
1. Withholding monthly progress payments;
2. Assessing sanctions;
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3. Liquidated damages;
4. Suspension or Debarment per Uniform Terms and Conditions Paragraph 9.3 of
the contractor from future bidding; and/or
5. Cancellation, termination, or suspension of the Contract, in whole or in part.
The contractor, subrecipient, or subcontractor shall ensure that all subcontract
agreements contain this non-discrimination assurance.
3.0 Definitions:
(A) Commercially Useful Function (CUF): Commercially Useful Function is
defined fully in 49 CFR 26.55, which definition is incorporated herein by
reference.
(B) Disadvantaged Business Enterprise (DBE): a for-profit small business
concern which meets both of the following requirements:
(1) Is at least 51 percent owned by one or more socially and economically
disadvantaged individuals or, in the case of any publicly owned
business, at least 51 percent of the stock is owned by one or more
such individuals; and,
(2) Whose management and daily business operations are controlled by
one or more of the socially and economically disadvantaged
individuals who own it.
(C) NAICS Code: The North American Industry Classification System (NAICS) is
the standard used by Federal statistical agencies in classifying business
establishments for the purpose of collecting, analyzing, and publishing
statistical data related to the U.S. business economy.
(D) Non-DBE: any firm that is not a DBE.
(E) Race-Conscious (RC): a measure or program focused specifically on
assisting only DBEs, including women-owned DBEs.
(F) Race-Neutral (RN): a measure or program used to assist all small
businesses. For the purposes of this part, race-neutral includes gender-
neutrality.
(G) Small Business Concern (SBC): a business that meets all of the following
conditions:
(1) Operates as a for-profit business registered to do business in Arizona;
(2) Operates a place of business primarily within the U.S., or makes a
significant contribution to the U.S. economy through payment of taxes
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or use of American products, materials, or labor;
(3) Is independently owned and operated;
(4) Is not dominant in its field on a national basis; and
(5) Does not have annual gross receipts that exceed the Small Business
Administration size standards average annual income criteria for its
primary North American Industry Classification System (NAICS) code.
(H) Socially and Economically Disadvantaged Individuals: any individual who
is a citizen (or lawfully admitted permanent resident) of the United States
and who is:
(1) Any individual who is found to be a socially and economically
disadvantaged individual on a case-by-case basis.
(2) Any individual in the following groups, members of which are
rebuttably presumed to be socially and economically disadvantaged:
(i) "Black Americans," which includes persons having origins in any of
the Black racial groups of Africa;
(ii) "Hispanic Americans," which includes persons of Mexican, Puerto
Rican, Cuban, Dominican, Central or South American, or other
Spanish or Portuguese culture or origin, regardless of race;
(iii) "Native Americans," which includes persons who are enrolled
members of federally or State recognized Indian tribe, Alaskan
Natives or Native Hawaiians;
(iv) “Asian-Pacific Americans,” which includes persons whose origins
are from Japan, China, Taiwan, Korea, Burma (Myanmar),
Vietnam, Laos, Cambodia (Kampuchea), Thailand, Malaysia,
Indonesia, the Philippines, Brunei, Samoa, Guam, the U.S. Trust
Territories of the Pacific Islands (Republic of Palau), the Republic
of the Northern Marianas Islands, Macao, Fiji, Tonga, Kiribati,
Tuvalu, Nauru, Federated States of Micronesia, or Hong Kong;
(v) “Subcontinent Asian Americans,” which includes persons whose
origins are from India, Pakistan, Bangladesh, Bhutan, the Maldives
Islands, Nepal or Sri Lanka;
(vi) "Women;"
(vii) Any additional groups whose members are designated as socially
and economically disadvantaged by the Small Business
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Administration (SBA), at such time as the SBA designation
becomes effective.
4.0 Working with DBEs:
The Department works with DBEs and assists them in their efforts to participate in the
highway construction. All proposers should contact the Department’s Business
Engagement and Compliance Office (BECO) by phone, through email, or at the address
shown below, for assistance in their efforts to use DBEs in the highway construction
industry. BECO contact information is as follows:
Arizona Department of
Transportation Business
Engagement and Compliance
Office 1801 W. Jefferson St.,
Ste. 101, Mail Drop 154A
Phoenix, AZ 85007
Phone (602) 712-7761
FAX (602) 712-8429
Email: contractorcompliance@azdot.gov Website: www.azdot.gov/bec
4.01 Mentor-Protégé Program:
The Department has established a Mentor- Protégé program as an initiative to
encourage and develop disadvantaged businesses in the highway construction
industry. The program encourages prime contractors to provide certain types of
assistance to certified DBE subcontractors. ADOT encourages contractors and certified
DBE subcontractors to engage in a Mentor-Protégé agreement under certain
conditions. Such an agreement must be mutually beneficial to both parties and to
ADOT in fulfilling requirements of 49 CFR Part 23. For guidance regarding this program
refer to the Mentor-Protégé Program Guidelines available on the BECO website.
The Mentor-Protégé program is intended to increase legitimate DBE activities. The
program does not diminish the DBE rules or regulations, and participants may not
circumvent these rules.
5.0 Applicability:
The Department has established an overall annual goal for DBE participation on
Federal aid contracts. The Department intends for the goal to be met with a
combination of race conscious efforts and race neutral efforts. Race conscious
participation occurs when the contractor uses a percentage of DBEs, as defined herein,
to meet the contract specified goal. Race neutral efforts are those that are, or can be,
used to assist all small businesses or increase opportunities for all small businesses.
The regulation, 49 CFR 26, defines race neutral as when a DBE wins a prime contract
through customary competitive procurement procedures or is awarded a subcontract
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on a prime contract that does not carry a DBE contract goal.
Prime contractors are encouraged to obtain DBE participation even if a DBE goal was
not established on a contract.
The DBE provisions are applicable to all contractors including DBE contractors.
6.0 Certification and Registration:
6.1 DBE Certification:
Certification as a DBE shall be predicated on:
(1) The completion and execution of an application for certification as a "Disadvantaged
Business Enterprise".
(2) The submission of documents pertaining to the firm(s) as stated in the application(s),
including but not limited to a statement of social disadvantage and a personal financial
statement.
(3) The submission of any additional information which the Department or the applicable
Arizona Unified Certification (UCP) agency may require to determine the firm's
eligibility to participate in the DBE program.
(4) The information obtained during the on-site visits to the offices of the firm and to active
job-sites.
Applications for certification may be filed online with the Department or the
applicable UCP agency at any time through the Arizona Unified Transportation
Registration and Certification System (AZ UTRACS) website at
http://www.azutracs.com.
DBE firms and firms seeking DBE certification shall cooperate fully with requests for
information relevant to the certification process. Failure or refusal to provide such
information is a ground for denial or removal of certification.
ADOT is a member of the AZ Unified Certification Program (AZUCP). Only DBE firms
that are certified by the AZUCP are eligible for credit on ADOT projects. A list of DBE
firms certified by AZUCP is available on the internet at http://www.azutracs.com/. The
list will indicate contact information and specialty for each DBE firm, and may be
sorted in a variety of ways. However, ADOT does not guarantee the accuracy and/or
completeness of this information, nor does ADOT represent that any licenses or
registrations are appropriate for the work to be done.
The Department’s certification of a DBE is not a representation of qualifications and/or
abilities nor does it mean that a DBE firm is guaranteed or entitled to receive or be
awarded a contract. Being certified simply means that a firm has met the criteria for
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DBE certification as outlined in 49 CFR Part 26. The contractor bears all risks of
ensuring that DBE firms selected by the contractor are able to perform the work.
6.2 SBC Registration:
To comply with 49 CFR Part 26.39, ADOT’s DBE Program incorporates contracting
requirements to facilitate participation by Small Business Concerns (SBCs) in federally
assisted contracts. SBCs are for- profit businesses authorized to do businesses in
Arizona that meet the Small Business Administration (SBA) size standards for average
annual revenue criteria for its primary North American Industry Classification System
(NAICS) code.
While the SBC component of the DBE program does not require utilization of goals on
projects, ADOT strongly encourages contractors to utilize small businesses that are
registered in AZ UTRACS on their contracts, in addition to DBEs meeting the
certification requirement. The contractor may use the AZ UTRACS website to search
for certified DBEs and registered SBCs that can be used on the contract. However,
SBCs that are not DBEs will not be counted toward DBE participation.
SBCs can register online at the AZ UTRACS website.
The Department’s registration of SBCs is not a representation of qualifications and/or
abilities nor does it mean that an SBC firm is guaranteed or entitled to receive or be
awarded a contract. Being SBC registered simply means that a firm has met the
criteria for SBC registration as outlined in 49 CFR Part
26. The contractor bears all risks of ensuring that SBC firms selected by the contractor
are able to perform the work.
7.0 DBE Financial Institutions:
The Department thoroughly investigates the full extent of services offered by financial
institutions owned and controlled by socially and economically disadvantaged
individuals in its service area and makes reasonable efforts to use these institutions.
The Department encourages prime contractors to use such institutions on USDOT
assisted contracts. However, use of DBE financial institutions will not be counted
toward DBE participation.
The Department encourages prime contractors to research the Federal Reserve Board
website at www.federalreserve.gov to identify minority-owned banks in Arizona
derived from the Consolidated Reports of Condition and Income filed quarterly by
banks (FFIEC 031 and 041) and from other information on the Board’s National
Information Center database.
8.0 Time is of the Essence:
TIME IS OF THE ESSENCE IN RESPECT TO THE DBE PROVISIONS.
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9.0 Computation of Time:
In computing any period of time described in this DBE special provision, such as
calendar days, the day from which the period begins to run is not counted, and when
the last day of the period is a Saturday, Sunday, or Federal or State holiday, the period
extends to the next day that is not a Saturday, Sunday, or Federal or State holiday. In
circumstances where the Department’s offices are closed for all or part of the last day,
the period extends to the next day on which the Department’s offices are open.
10.0 Contractor and Subcontractor Requirements:
10.1 General:
Each contractor shall establish a program that will ensure nondiscrimination in the
award and administration of contracts and subcontracts.
Agreements between the bidder and a DBE in which the DBE promises not to provide
subcontracting quotations to other bidders are prohibited.
10.2 DBE Liaison:
The contractor shall designate a DBE Liaison responsible for the administration of the
contractor’s DBE program. The name of the designated DBE Liaison shall be included in
the DBE Intended Participation Affidavit Summary.
11.0 DBE Goals
The Department has not established contract goals for DBE participation in this contract.
Contractors are still encouraged to employ reasonable means to obtain DBE
participation. Contractors must retain records in accordance with these DBE
specifications. The contractor is notified that this record keeping is important to the
Department so that it can track DBE participation where only race neutral efforts are
employed.
11.1 Race Neutral Contract (With No DBE Goal)
The Department has established a Disadvantaged Business Enterprise (DBE) program
in accordance with the regulations of the U.S. Department of Transportation (USDOT),
49 CFR Part 26. ADOT has received federal financial assistance from the USDOT and as
a condition of receiving this assistance, ADOT has signed an assurance that it shall
comply with 49 CFR Part 26.
It is ADOT’s policy to ensure that DBEs, as defined in 49 CFR Part 26, have an equal
opportunity to receive and participate in federally-funded contracts.
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NO CONTRACT DBE GOAL HAS BEEN ESTABLISHED FOR DBE PARTICIPATION ON THIS
CONTRACT.
Contractors are still encouraged to employ reasonable means to obtain DBE
participation. Contractors must retain records in accordance with these DBE
specifications. The consultant is notified that this record keeping is important to the
Department so that it can track DBE participation where only race neutral efforts are
employed.
12.0 Bidders/Proposers List and AZ UTRACS Registration Requirement:
Under Title 49 CFR of the Code of Federal Regulations, Part 26.11, DOTs are required
to collect certain information from all contractors and subcontractors who seek to
work on federally-assisted contracts in order to set overall and contract DBE goals.
ADOT collects this information when firms register their companies on the Arizona
Unified Transportation Registration and Certification System (AZ UTRACS) web portal
at http://www.azutracs.com/ a centralized database for companies that seek to do
business with ADOT. This information will be maintained as confidential to the extent
allowed by federal and state law.
Prime contractors and all subcontractors, including DBEs listed in the offer must be
registered in AZUTRACS. Proposers may verify that their firm and each subcontractor
is registered using the AZUTRACS website.
Proposers may obtain additional information at the AZ UTRACS website or by contacting BECO.
All proposers shall create a Bidders/Proposers list in the AZ UTRACS by selecting all
firms, service providers, and vendors that expressed interest or submitted proposals
or quotes for this contract. The Bidders/Proposers List form must be complete and
must include the names for all subcontractors, service providers, and vendors that
submitted proposals or quotes on this project regardless of the proposer’s intentions
to use the those firms on the project.
All proposers must complete and submit the Bidders/Proposers List online at AZ
UTRACS prior to Offer submittal. A confirmation email will be generated by the
system. This email confirmation shall be submitted with the Offer.
13.0 Payment Reporting:
The contractor shall report on a monthly basis indicating the amounts paid to all
subcontractors, of all tiers, working on the project. Reporting shall be in accordance
with below.
Subcontracts:
a. Sub-Contract Terms:
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1. The Contractor agrees to execute a written Contract with all Subcontractors
for work to be completed under this Contract. The executed Contract shall
include Subcontractor’s Scope of Work and all the Uniform Terms and
Conditions set forth in this Contract.
2. The Contractor shall provide electronic copies of signed subcontract
agreements with all Subcontractors to ADOT Business Engagement and
Compliance Office (BECO) by uploading them to the BECO’s online DBE
Contract & Labor Compliance Management System (DBE System) at
https://adot.dbesystem.com. Subcontract agreements shall include all
required assurances and required clauses as outlined in this Contract. Each
agreement and required attachment shall be dated and signed by the
Subcontractor in order for the subcontract to be considered valid.
3. The Contractor may be in breach of this Contract if the Contractor materially
modifies the federal regulations and State statutes in its subcontract
agreements terms and conditions with its Subcontractors. Deviations from
the terms of this Contract may result in termination of the Contract, or any
other such remedy as deemed appropriate by the Department.
b. Sub-Contract Payments
1. Retention: If the prime contract does not provide for retention, the
contractor and each subcontractor of any tier shall not withhold retention
on any subcontract. If the prime contract provides for retention, the prime
contractor and each subcontractor of any tier shall not retain a higher
percentage than the Department may retain under the prime contract.
Retainage shall be paid to the subcontractor within 7 days of satisfactory
completion of the work performed by the subcontractor.
2. No Set-offs Arising from Other Contracts: If a subcontractor is performing
work on multiple contracts for the same contractor or subcontractor of any
tier, the contractor or subcontractor of any tier shall not withhold or reduce
payment from its subcontractors on the contract because of disputes or
claims on another contract.
3. Partial Payment: The contractor and each subcontractor of any tier shall
make prompt partial payments to its subcontractors within seven days of
receipt of payment from the Department. Notwithstanding any provision of
Arizona Revised Statutes Section 28-411, the parties may not agree
otherwise.
4. Final Payment: The contractor and each subcontractor of any tier shall make
prompt final payment to each of its subcontractors. The contractor and each
subcontractor of any tier shall pay all monies, including retention, due to its
subcontractor within seven days of receipt of payment. Notwithstanding any
provision of Arizona Revised Statutes Section 28-411, the parties may not
agree otherwise.
5. Payment Reporting: For the purposes of this subsection “Reportable
Contracts” means any subcontract, of any tier, DBE or non-DBE, by which
work shall be performed on behalf of the contractor and any contract of any
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tier with a DBE material or service supplier.
The requirements of this subsection apply to all Reportable Contracts.
Payment Reporting for all Reportable Contracts shall be done through the
Department’s web- based DBE System. The DBE System can be accessed
from the Department’s BECO website. No later than fifteen calendar days
after the Notice to Proceed is issued, the contractor shall log into the
Department’s web based DBE System and enter or verify the name, contact
information, and subcontract amounts for Reportable Contracts on the
project. As Reportable Contracts are approved over the course of the
contract, the contractor shall enter them in the system. Reportable
contracts shall be entered into the system no later than five calendar days
after approval by the Department.
The contractor shall report on a monthly basis indicating the amounts
actually paid and the dates of each payment under any Reportable Contract
on the project. In addition, the contractor shall require that all participants
in any Reportable Contract electronically verify receipt of payment on the
contract by the last day of the month and the contractor shall actively
monitor the Department’s DBE System to ensure that the verifications are
input. The contractor shall proactively work to resolve any payment
discrepancies in the DBE System between payment amounts it reports and
payment confirmation amounts reported by others.
The contractor shall ensure that all Reportable Contract activity is reported
to the Department. This includes all lower-tier Reportable Contracts,
regardless of whether a DBE is involved or not.
The contractor shall maintain records for each payment explaining the
amount requested by the subcontractor, and the amount actually paid
pursuant to the request, which may include but are not limited to,
estimates, invoices, pay requests, copies of checks or wire transfers, and lien
waivers in support of the monthly payments in the DBE System.
The contractor shall provide information for payments made on all
Reportable Contracts during the previous month by the 15th day of the
current month. In the event that no payments were made during a given
month, the contractor shall identify that by entering a dollar value of zero. If
the contractor does not pay the full amount of any invoice from a
subcontractor, the contractor shall note that and provide the reasons in the
comment section of the Monthly Payment Audit of the DBE System.
For each Reportable Contract on which the contractor fails to submit timely
payment information the Department will retain $1,000.00 as liquidated
damages, from the monies due to the contractor. Liquidated damages will
be deducted each month for each Reportable Contract on which the
contractor fails to submit payment information until the contractor provides
the required information as described herein. After 90 consecutive days of
non- reporting, the liquidated damages will increase to $2,000.00 for each
subsequent month, for each Reportable Contract on which the contractor
fails to report until the information is provided. These liquidated damages
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shall be in addition to all other retention or liquidated damages provided for
elsewhere in the contract.
Payment reporting requirements apply to all contracts, federal and non-federal
funded.
The contractor shall ensure that a copy of this Subsection is included in
every Reportable Contract of every tier.
(a) Sanctions for Inadequate Reporting:
For each Reportable Contract on which the contractor fails to submit timely
and complete payment information the Department will retain $1,000.00 as
liquidated damages, from the monies due to the contractor. Liquidated
damages will be deducted each month for each Reportable Contract on
which the contractor fails to submit payment information until the
contractor provides the required information as described herein. After 90
consecutive days of non-reporting, the liquidated damages will increase to
$2,000.00 for each subsequent month, for each Reportable Contract on
which the contractor fails to report until the information is provided. These
liquidated damages shall be in addition to all other retention or liquidated
damages provided for elsewhere in the contract.
6. Completion of Work: A subcontractor’s work is satisfactorily completed
when all the tasks called for in the subcontract have been accomplished,
documented, and accepted by the Department.
7. Disputes: If disputes arise regarding payment of subcontractors, the
contractor shall immediately provide the ADOT Project Manager with a
written, verifiable explanation if:
The contractor does not pay the full amount of any invoice from a
subcontractor within seven days of receipt of a progress payment from
the Department, or
The monthly estimate does not include all work claimed by a
subcontractor to have been performed.
The Department will determine whether the contractor has acted in good
faith concerning any such explanations. The Department reserves the right
to request and receive documents from the contractor and all
subcontractors of any tier, in order to determine whether termination
requirements were met. The contractor shall implement and use the dispute
resolution process outlined in the subcontract, as described in Uniform
Terms and Conditions Paragraph, to resolve payment disputes.
8. Non-Compliance: Failure to make prompt partial payment or prompt final
payment including any retention, within the time frames established in this
contract, will result in remedies, as the Department deems appropriate,
which may include, but are not limited to:
Liquidated Damages: These liquidated damages shall be in addition to all
other retention or liquidated damages provided for elsewhere in the
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contract.
(i) The Department will withhold two times the disputed dollar
amount not paid to each subcontractor.
(ii) If full payment is made within 30 days of the Department’s
payment to the contractor, the amount withheld by the
Department will be released.
(iii) If full payment is made after 30 days of the Department’s
payment to the contractor, the Department will release 75
percent of the funds withheld. The Department will retain 25
percent of the monies withheld as liquidated damages.
Additional Remedies: If the contractor fails to make prompt payment for
three consecutive months, or any four months over the course of one
project, or if the contractor fails to make prompt payment on two or
more contracts within 24 months, the Department may, in addition,
invoke the following remedies:
(i) Withhold monthly progress payments until the issue is resolved
and full payment has been made to all subcontractors and
vendors subject to the requirements outlined under “Liquidated
Damages” above,
(ii) Terminate the contract for default in accordance with this Contract,
and/or
(iii) Suspension or Debarment per Uniform Terms and Conditions
Paragraph 9.3 of the contractor from future bidding temporarily
or permanently, depending on the number and severity of
violation.
(iv) Reflect the contractor’s performance in submitting payment
reports and making subcontractor payments utilizing the
Department’s Vendor Performance Report.
14.0 Crediting DBE Participation:
14.01 General Requirements:
To count toward DBE participation, the DBE firms must be certified at the time of Offer
submission in each NAICS code applicable to the kind of work the firm will perform on
the contract. NAICS for each DBE can be found on the AZ UTRACS website. General
descriptions of all NAICS codes can be found at http://www.naics.com/search/.
Credit is given only after the DBE has been paid for the work performed.
The entire amount of a contract that is performed by the DBE’s own forces, including
the cost of supplies and materials purchased by the DBE for the work on the contract
and equipment leased by the DBE will be credited toward DBE participation. Supplies
and equipment the DBE subcontractor purchases or leases from the prime contractor
or its affiliate will not be credited toward DBE participation.
The contractor bears the responsibility to determine whether the DBE possesses the
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proper contractor’s license(s) to perform the work and, if DBE credit is requested, that
the DBE subcontractor is certified for the requested type of work.
The Department’s certification is not a representation of a DBE’s qualifications and/or
abilities. The contractor bears all risks that the DBE may not be able to perform its
work for any reason.
A DBE may participate as a prime contractor, subcontractor, or as a vendor of
materials or supplies. The dollar amount of work to be accomplished by DBEs,
including partial amount of a lump sum or other similar item, shall be on the basis of
subcontract, purchase order, hourly rate, rate per ton, etc., as agreed to between
parties.
DBE credit may be obtained only for specific work done for the project, supply of
equipment specifically for physical work on the project, or supply of materials to be
incorporated in the work. DBE credit will not be allowed for costs such as overhead
items, capital expenditures (for example, purchase of equipment), and office items.
The contractor may credit second-tier subcontracts issued to DBEs by non-DBE
subcontractors. Any second-tier subcontract to a DBE must meet the requirements of
a first-tier DBE subcontract.
A prime contractor may credit the entire amount of that portion of a contract that is
performed by the DBE’s own forces. The cost of supplies and materials obtained by
the DBE for the work of the contract can be included so long as that cost is reasonable.
Leased equipment may also be included. No credit is permitted for supplies purchased
or equipment leased from the prime contractor or its affiliate(s).
When a DBE subcontracts a part of the work of its contract to another firm, the value
of the subcontract may be credited towards DBE participation only if the DBE’s
subcontractor is itself a DBE and performs the work with its own forces. Work that a
DBE subcontracts to a non-DBE firm does not count toward DBE participation.
A prime contractor may credit the entire amount of fees or commissions charged by a
DBE firm for providing a bona fide service, such as professional, technical, consulting,
or managerial services, or for providing bonds or insurance specifically required for the
performance of a USDOT-assisted contract, provided the fees are reasonable and not
excessive as compared with fees customarily allowed for similar services.
14.02 DBE Prime Contractor:
When a certified DBE firm proposes on a contract/Task Assignment all the work that is
performed by the DBE contractor or any other DBE subcontractors and DBE suppliers
will count toward DBE participation.
14.03 Effect of Loss of DBE Eligibility:
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For On-Call Task Assignment contracts, if a DBE is deemed ineligible (decertified) or
suspended by ADOT or one of its UCP Partner Agencies in accordance with 49 CFR
26.87 and 26.88, the DBE may not be count toward DBE participation on a new Task
Assignment, but may be considered for the contract/Task Assignment DBE
participation if a subcontract or contract modification for the work to be completed on
the Task Assignment was executed before the DBE suspension or decertification is
effective.
A subcontract or contract modification for work on the task assignment means, any
subcontract or agreement for the task assignment, which includes a specific ADOT
TRACS/Project Number, defined scope, duration and budget for the work to be
completed under the Task Assignment that is duly signed by the contractor/contractor
and subcontractor/subcontractor.
When the contractor/contractor intents to use an ineligible DBE firm or ADOT made a
commitment to use an ineligible DBE prime contractor/contractor, but a subcontract
or Contract Modification for the work to be completed on the Task Assignment has
not been executed before a decertification notice is issued to the DBE firm by its
certifying agency, the ineligible firm does not count toward DBE participation. When a
subcontract or contract modification is executed with the DBE firm for the work to be
completed on the Task Assignment before ADOT notified the firm of its ineligibility,
the DBE’s work on the Task Assignment may continue to be credited toward DBE
participation for the firm’s work.
14.04 Notifying the Contractor of DBE Certification Status:
Each DBE contract at any tier shall require any DBE subcontractor or supplier that is
either decertified or certified during the term of the contract to immediately notify the
contractor and all parties to the DBE contract in writing, with the date of
decertification or certification. The contractor shall require that this provision be
incorporated in any contract of any tier in which a DBE is a participant.
14.05 Commercially Useful Function:
A prime contractor can credit expenditures to a DBE subcontractor only if the DBE
performs a Commercially Useful Function (CUF).
A DBE performs a CUF when it is responsible for execution of the work of a contract
and carries out its responsibilities by actually performing, managing, and supervising
the work involved. To perform a commercially useful function, the DBE must also be
responsible, with respect to materials and supplies on the contract, for negotiating
price, determining quality and quantity, ordering the material, and installing (where
applicable) and paying for the material itself that it uses on the project. To determine
whether a DBE is performing a commercially useful function, the Department will
evaluate the amount of work subcontracted, industry practices, whether the amount
the firm is to be paid under the contract is commensurate with the work it is actually
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performing and the DBE credit claimed for its performance of the work, and other
relevant factors.
A DBE will not be considered to perform a commercially useful function if its role is
limited to that of an extra participant in a transaction, contract, or project through
which funds are passed in order to obtain the appearance of DBE participation. In
determining whether a DBE is such an extra participant, the Department will examine
similar transactions, particularly those in which DBEs do not participate.
If a DBE does not perform or exercise responsibility for at least 30 percent of the total
cost of its contract with its own work force, or if the DBE subcontracts a greater
portion of the work of a contract than would be expected on the basis of normal
industry practice for the type of work involved, the Department will presume that the
DBE is not performing a commercially useful function.
When a DBE is presumed not to be performing a commercially useful function as
provided above, the DBE may present evidence to rebut this presumption. The
Department will determine if the firm is performing a CUF given the type of work
involved and normal industry practices.
The Department will notify the contractor, in writing, if it determines that the
contractor’s DBE subcontractor is not performing a CUF. The contractor will be
notified within seven calendar days of the Department’s decision.
Decisions on CUF may be appealed to the Chief Procurement Officer (CPO). The appeal
must be in writing and personally delivered or sent by certified mail, return receipt
requested, to the CPO. The appeal must be received by the CPO no later than seve n
calendar days after the decision of BECO. BECO’s decision remains in place unless and
until the CPO reverses or modifies BECO’s decision. CPO will promptly consider any
appeals under this subsection and notify the contractor of CPO’s findings and
decisions. Decisions on CUF matters are not administratively appealable to USDOT.
The BECO may conduct project site visits on the contract to confirm that DBEs are
performing a CUF. The contractor shall cooperate during the site visits and the BECO’s
staff will make every effort not to disrupt work on the project.
15.0 Required Provisions for DBE Subcontracts:
All subcontracts of any tier, all supply contracts, and any other contracts in which a
DBE is a participant shall include as a physical attachment, DBE Subcontractor
Compliance Assurances refer to the Federal Attachments and Exhibits.
Contractors executing agreements with subcontractors, DBE or non-DBE, that
materially modify federal regulation and state statutes such as, prompt payment and
retention requirements, through subcontract terms and conditions will be found in
breach of contract which may result in termination of the contract, or any other such
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remedy as the deemed appropriate as outlined in DBE Subsection 2.0 of these DBE
provisions.
The Department reserves the right to conduct random reviews of DBE and non-DBE
subcontract documentation to ensure compliance with federal requirements.
The contractor shall ensure that all subcontracts or agreements with DBEs to supply
labor or materials require that the subcontract and all lower tier subcontracts be
performed in accordance with 49 CFR Part 26 provisions.
The Contractor shall provide electronic copies of subcontract agreements with all
Subcontractors by uploading them within 15 calendar days of an executed contract to
the ADOT DBE System. Subcontract agreements shall include all required assurances
and clauses as outlined in DBE Subcontractor Compliance Assurances refer to the
Federal Attachments and Exhibits of the Contract. Each agreement and required
attachment shall be dated and signed by the Subcontractor in order for the
subcontract to be considered valid.
The Contractor shall be in breach of this Contract if the Contractor materially modifies
the federal regulations and State statutes in its subcontract agreements terms and
conditions with its Subcontractors. Deviations from the terms of this Contract may
result in termination of the Contract, or any other such remedy as deemed
appropriate by the Department
16.0 Certification of Final DBE Payments:
DBE participation on the contract is measured by actual payments made to the DBEs.
The contractor shall submit the “Certification of Final DBE Payments” form for each
DBE firm working on the contract. This form shall be signed by the contractor and the
relevant DBE, and submitted to the Engineer no later than 30 days after the DBE
completes its work.
The contractor will not be released from the obligations of the contract until the
”Certification of Final DBE Payments” forms are received and deemed acceptable by
the Engineer and BECO.
17.0 False, Fraudulent, or Dishonest Conduct:
In addition to any other remedies or actions, the Department will bring to the
attention of the US Department of Transportation any appearance of false, fraudulent,
or dishonest conduct in connection with the DBE program, so that USDOT can take
steps such as referral to the Department of Justice for criminal prosecution, referral to
the USDOT Inspector General for possible initiation of suspension and debarment
proceedings against the offending parties or application of “Program Fraud and Civil
Penalties” rules provided in 49 CFR Part 31.
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21. NONDISCRIMINATION
1. During the performance of this Contract, the Consultant, for itself, its
Subconsultants, assignees and successors shall:
a. Not discriminate on the basis of race, color, national origin, or sex and shall
carry out applicable requirements of 49 CFR Part 26 in the performance of this
Contract. Failure by the Consultant to carry out these requirements is a
material breach of this Contract, which may result in the termination of this
Contract, disqualification from proposing on other Contracts or other remedy
as the State deems appropriate.
b. Comply with Executive Order 2009-09, "Prohibition of Discrimination in
Employment by Government Contractors and Subcontractors," which is
hereby included in its entirety by reference and considered a part of this
Contract.
c. Comply with the provisions of Executive Order 11246, entitled "Equal
Employment Opportunity," as amended by Executive Order 11375, and as
supplemented in Department of Labor Regulations (41 CFR Part 60). Said
provisions are made applicable by reference and are hereinafter considered a
part of this Contract.
d. Post in conspicuous places available to employees and applicants for
employment, the following notice:
“It is the policy of this company not to discriminate against any employee, or
applicant for employment, because of race, color, religion, creed, national
origin, sex, age, handicapped, or disabled veterans and Vietnam era
veterans. Such actions shall include, but are not limited to: employment,
upgrading, demotion, transfer, recruitment, or recruitment advertising;
laying- off or termination; rates of pay or other compensation; and selection
for training, and on-the- job training. Also, it is the policy to ensure and
maintain a working environment free of harassment, intimidation and
coercion.”
e. Comply with the Regulations relative to nondiscrimination in Federally-assisted
programs of the
U.S. Department of Transportation (hereinafter USDOT), 49 CFR Part 21, as
they may be amended from time to time, (hereinafter referred to as the
Regulations), which are herein incorporated by reference and made a part of
this Contract.
f. Not discriminate on the grounds of race, color, sex, or national origin in the
selection and retention of Subconsultants, including procurement of materials
and leases of equipment. The Consultant shall not participate either directly or
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indirectly in the discrimination prohibited by Section 21.5 of the Regulations,
including employment practices.
g. In all solicitations either by competitive bidding or negotiations made by the
Consultant for work to be performed under a subcontract, including
procurement of materials or leases of equipment, notify each potential
Subconsultant or supplier of the Consultant’s obligations under this Contract
and the Regulations relative to nondiscrimination on the ground of race, color,
or national origin.
h. Provide all information and reports required by the Regulations or directives
issued pursuant thereto, and shall permit access to its books, records,
accounts, other sources of information and its facilities as may be determined
by the State to be pertinent to ascertain compliance with such Regulations,
orders and instructions. Where any information required of a Consultant is in
the exclusive possession of another who fails or refuses to furnish this
information, the Consultant shall so certify to the State as appropriate, and
shall set forth what efforts it has made to obtain the information.
2. In the event of the Consultant’s noncompliance with the NONDISCRIMININATION
provision (Section A) of this Contract, the State shall impose such Contract
sanctions as the State or FHWA may determine to be appropriate, including but
not limited to:
a. Withholding of payments to the Consultant under the Contract until the
Consultant complies,
and/or;
b. Cancellation, termination, or suspension of the Contract, in whole or in part.
3. The Consultant shall include the provisions of paragraph 1.a. through 1.h. in every
subcontract with Subconsultants, DBEs and non-DBEs, including procurement of
materials and equipment leases, unless exempt by the Regulations or directives
issued pursuant thereto.
4. The Consultant shall take such action with respect to any Subconsultants or
procurement as the State or the Federal Aviation Administration (FAA), FHWA and
the Federal Transit Administration (FTA) may direct as a means of enforcing such
provisions including sanctions for noncompliance. Provided, however, that in the
event the Consultant becomes involved in or is threatened with litigation with a
Subconsultant or supplier as a result of such direction, the Consultant may request
the State to enter into such litigation to protect the interests of the State, and in
addition, the Consultant may request the United States to enter into such
litigation to protect the interests of the United States.
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22. AFFIRMATIVE ACTION
Contractor shall take the following affirmative action steps with respect to securing
supplies, equipment, or services under the terms of this contract:
a. Include qualified firms owned by socially and economically disadvantaged
individuals on solicitation lists.
b. Assure that firms owned by socially and economically disadvantaged
individuals are solicited whenever they are potential sources.
c. When economically feasible, divide total requirements into smaller tasks
or quantities so as to permit maximum participation by firms owned by
socially and economically disadvantaged individuals.
d. Where the requirement permits, establish delivery schedules which will
encourage participation by firms owned by socially and economically
disadvantaged individuals.
e. Use the services and assistance of the Small Business Administration, the
Office of Minority Business Enterprise of the Department of Commerce,
and the Community Services Administration, as required.
23. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT
The following clauses apply to any Federal-aid contract in an amount in excess of
$100,000 and subject to the overtime provisions of the Contract Work Hours and
Safety Standards Act. These clauses shall be inserted in addition to the clauses
required by 29 CFR 5.5(a) or 29 CFR 4.6. As used in this paragraph, the terms laborers
and mechanics include watchmen and guards.
Overtime requirements. No contractor or subcontractor contracting for any part of
the contract work which may require or involve the employment of laborers or
mechanics shall require or permit any such laborer or mechanic in any workweek in
which he or she is employed on such work to work in excess of forty hours in such
workweek unless such laborer or mechanic receives compensation at a rate not less
than one and one-half times the basic rate of pay for all hours worked in excess of
forty hours in such workweek.
Violation; liability for unpaid wages; liquidated damages. In the event of any violation
of the clause set forth in paragraph (1.) of this section, the contractor and any
subcontractor responsible therefor shall be liable for the unpaid wages. In addition,
such contractor and subcontractor shall be liable to the United States (in the case of
work done under contract for the District of Columbia or a territory, to such District or
to such territory), for liquidated damages. Such liquidated damages shall be computed
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with respect to each individual laborer or mechanic, including watchmen and guards,
employed in violation of the clause set forth in paragraph (1.) of this section, in the
sum of $10 for each calendar day on which such individual was required or permitted
to work in excess of the standard workweek of forty hours without payment of the
overtime wages required by the clause set forth in paragraph (1.) of this section.
Withholding for unpaid wages and liquidated damages. The FHWA or the contacting
agency shall upon its own action or upon written request of an authorized
representative of the Department of Labor withhold or cause to be withheld, from any
moneys payable on account of work performed by the contractor or subcontractor
under any such contract or any other Federal contract with the same prime
contractor, or any other federally-assisted contract subject to the Contract Work
Hours and Safety Standards Act, which is held by the same prime contractor, such
sums as may be determined to be necessary to satisfy any liabilities of such contractor
or subcontractor for unpaid wages and liquidated damages as provided in the clause
set forth in paragraph (2.) of this section.
Subcontracts. The contractor or subcontractor shall insert in any subcontracts the
clauses set forth in paragraph (1.) through (4.) of this section and also a clause
requiring the subcontractors to include these clauses in any lower tier subcontracts.
The prime contractor shall be responsible for compliance by any subcontractor or
lower tier subcontractor with the clauses set forth in paragraphs (1.) through (4.) of
this section.
24. FEDERAL CHANGES
The Contactor and its sub-contractors shall comply with all applicable FTA regulations,
policies, procedures and directives, including without limitation those listed directly or
by reference in the Master Agreement between the Department and FTA, as they be
amended or promulgated from time to time during the term of the contract.
Contractor’s failure to comply shall constitute a material breach of the contract.
25. PROMPT PAY
The prime contractor agrees to pay each subcontractor under this prime contract for
satisfactory performance of its contract no later than 30 days from the receipt of each
payment the prime contract receives from the Recipient. The prime contractor agrees
further to return retainage payments to each subcontractor within 30 days after the
subcontractors work is satisfactorily completed. Any delay or postponement of
payment from the above referenced time frame may occur only for good cause
following written approval of the Recipient. This clause applies to both DBE and non-
DBE subcontracts.
26. FULL AND OPEN COMPETITION
In accordance with 49 U.S.C. § 5325(h) all procurement transactions shall be
FEDERAL PROVISIONS
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conducted in a manner that provides full and open competition.
27. PROHIBITION AGAINST EXCLUSIONARY OR DISCRIMINATORY SPECIFICATIONS
Apart from inconsistent requirements imposed by Federal statute or regulations, the
contractor shall comply with the requirements of 49 USC 5323(h)(2) by refraining from
using any FTA assistance to support procurements using exclusionary or discriminatory
specifications.
28. CONFORMANCE WITH ITS NATIONAL ARCHITECTURE
Contractor shall conform, to the extent applicable, to the National Intelligent
Transportation Standards architecture as required by SAFETEA-LU Section 5307(c), 23
U.S.C. Section 512 note and follow the provisions of FTA Notice, “FTA National
Architecture Policy on Transit Projects,” 66 Fed. Reg.1455 et seq., January 8, 2001, and
any other implementing directives FTA may issue at a later date, except to the extent
FTA determines otherwise in writing.
29. ACCESS REQUIREMENTS FOR PERSONS WITH DISABILITIES
Contractor shall comply with 49 USC 5301(d), stating Federal policy that the elderly
and persons with disabilities have the same rights as other persons to use mass
transportation services and facilities and that special efforts shall be made in planning
and designing those services and facilities to implement that policy.
Contractor shall also comply with all applicable requirements of Sec. 504 of the
Rehabilitation Act (1973), as amended, 29 USC 794, which prohibits discrimination on
the basis of handicaps, and the Americans with Disabilities Act of 1990 (ADA), as
amended, 42 USC 12101 et seq., which requires that accessible facilities and services
be made available to persons with disabilities, including any subsequent amendments
thereto.
30. NOTIFICATION OF FEDERAL PARTICIPATION
To the extent required by law, in the announcement of any third party contract award
for goods and services (including construction services) having an aggregate value of
$500,000 or more, contractor shall specify the amount of Federal assistance to be
used in financing that acquisition of goods and services and to express that amount of
Federal assistance as a percentage of the total cost of the third party contract.
31. INTEREST OF MEMBERS OR DELEGATES TO CONGRESS
No members of, or delegates to, the US Congress shall be admitted to any share or
part of this contract nor to any benefit arising therefrom.
FEDERAL PROVISIONS
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32. INELIGIBLE CONTRACTORS AND SUBCONTRACTORS
Any name appearing upon the Comptroller General’s list of ineligible contractors for
federally-assisted contracts shall be ineligible to act as a subcontractor for contractor
pursuant to this contract. If contractor is on the Comptroller General’s list of ineligible
contractors (https://www.sam.gov/SAM/) for federally financed or assisted
construction, the recipient shall cancel, terminate or suspend this contract.
33. OTHER CONTRACT REQUIREMENTS
To the extent not inconsistent with the foregoing Federal requirements, this contract
shall also include those standard clauses attached hereto, and shall comply with the
recipient’s Procurement Guidelines, available upon request from the Department.
34. COMPLIANCE WITH FEDERAL REGULATIONS
Any contract entered pursuant to this solicitation shall contain the following
provisions: All USDOT- required contractual provisions, as set forth in FTA Circular
4220, are incorporated by reference. Anything to the contrary herein notwithstanding,
FTA mandated terms shall control in the event of a conflict with other provisions
contained in this Agreement. Contractor shall not perform any act, fail to perform any
act, or refuse to comply with any grantee request that would cause the recipient to be
in violation of FTA terms and conditions. Contractor shall comply with all applicable
FTA regulations, policies, procedures and directives, including, without limitation,
those listed directly or incorporated by reference in the Master Agreement between
the recipient and FTA, as may be amended or promulgated from time to time during
the term of this contract. Contractor’s failure to so comply shall constitute a material
breach of this contract.
35. REAL PROPERTY
Any contract entered into shall contain the following provisions: Contractor shall at all
times comply with all applicable statutes and USDOT regulations, policies, procedures
and directives governing the acquisition, use and disposal of real property, including,
but not limited to, 49 CFR 18.31-18.34, 49 CFR 19.30-19.37, 49 CFR Part 24, 49 CFR
5326 as amended by Map-21, 49 CFR part 18 or 19, 49 USC 5334, applicable FTA
Circular 5010, and FTA Master Agreement, as they may be amended or promulgated
during the term of this contract. Contractor’s failure to so comply shall constitute a
material breach of this contract.
36. ACCESS TO SERVICES FOR PERSONS WITH LIMITED ENGLISH PROFICIENCY
To the extent applicable and except to the extent that FTA determines otherwise in
writing, the Recipient agrees to comply with the policies of Executive Order No. 13166,
"Improving Access to Services for Persons with Limited English Proficiency," 42 U.S.C. §
2000d 1 note, and with the provisions of U.S. DOT Notice, “DOT Guidance to
Recipients on Special Language Services to Limited English Proficient (LEP)
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Beneficiaries,” 70 Fed. Reg. 74087, December 14, 2005.
37. ENVIROMENTAL JUSTICE
Except as the Federal Government determines otherwise in writing, the Recipient
agrees to promote environmental justice by following: (1) Executive Order No. 12898,
“Federal Actions to Address Environmental Justice in Minority Populations and Low-
Income Populations,” February 11, 1994, 42
U.S.C. § 4321 note, as well as facilitating compliance with that Executive Order, and (2)
DOT Order 5610.2, “Department of Transportation Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations,” 62 Fed. Reg. 18377,
April 15, 1997, and (3) The most recent and applicable edition of FTA Circular 4703.1,
“Environmental Justice Policy Guidance for Federal Transit Administration Recipients,”
August 15, 2012, to the extent consistent with applicable Federal laws, regulations,
and guidance,
38. ENVIRONMENTAL PROTECTIONS
Compliance is required with any applicable Federal laws imposing environmental and
resource conservation requirements for the project. Some, but not all, of the major
Federal laws that may affect the project include: the National Environmental Policy Act
of 1969; the Clean Air Act; the Resource Conservation and Recovery Act; the
comprehensive Environmental response, Compensation and Liability Act; as well as
environmental provisions with Title 23 U.S.C., and 49 U.C. chapter 53. The U.S. EPA,
FHWA and other federal agencies may issue other federal regulations and directives
that may affect the project. Compliance is required with any applicable Federal laws
and regulations in effect now or that become effective in the future.
39. GEORGRAPHIC INFORMATION RELATED TO SPATIAL DATA
Any project activities involving spatial data or geographic information systems
activities financed with Federal assistance are required to be consistent with the
National Spatial Data Infrastructure promulgated by the Federal Geographic Data
Committee, except to the extent that FTA determines otherwise in writing.
40. GEOGRAPHIC PREFERENCE
Pursuant to 2 CFR 200.319(b), all procurements must be conducted in a manner that
prohibits the use of statutorily or administratively imposed state, local, or tribal
geographical preferences in the evaluation of bids or proposals, except in those cases
where applicable Federal statutes expressly mandate or encourage geographic preference.
Nothing in this section preempts state licensing laws. When contracting for architectural
and engineering (A/E) services, geographic location may be a selection criterion provided
its application leaves an appropriate number of qualified firms, given the nature and size
of the project, to compete for the contract).
41. ORGANIZATIONAL CONFLICTS OF INTEREST
FEDERAL PROVISIONS
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The Recipient agrees that it will not enter into a procurement that involves a real or
apparent organizational conflict of interest described as follows:
(1) When It Occurs. An organizational conflict of interest occurs when the Project work,
without appropriate restrictions on certain future activities, results in an unfair
competitive advantage:
(a) To that Third Party Participant or another Third Party Participant performing
the Project work, and
(b) That impairs that Third Party Participant’s objectivity in performing the Project
work, or
(2) Other. An organizational conflict of interest may involve other situations resulting in
fundamentally unfair competitive conditions,
(3) Disclosure Requirements. Consistent with FTA policies, the Recipient must disclose to
FTA, and each of its Subrecipients must disclose to the Recipient:
(a) Any instances of organizational conflict of interest, or
(b) Violations of federal criminal law, involving fraud, bribery, or gratuity
violations potentially affecting the federal award, and
(4) Failure to Disclose. Failure to make required disclosures can result in remedies for
noncompliance, including debarment or suspension.
42. VETRANS PREFERENCE
As provided by 49 U.S.C. § 5325(k), to the extent practicable, the Recipient agrees and
assures that each of its Subrecipients:
(1) Will give a hiring preference to veterans, as defined in 5 U.S.C. § 2108, who have the
skills and abilities required to perform construction work required under a third party
contract in connection with a Capital Project supported with federal assistance
appropriated or made available for 49 U.S.C. chapter 53, and
(2) Will not require an employer to give a preference to any veteran over any equally
qualified applicant who is a member of any racial or ethnic minority, female, an
individual with a disability, or a former employee.
43. CATALOG OF FEDERAL DOMESTIC ASSISTANCE (CFDA) IDENTIFICATION NUMBER
The municipal project sponsor is required to identify in its accounts all Federal awards
received and expended, and the Federal programs under which they were received.
Federal program and award identification shall include, as applicable, the CFDA title
and number, award number and year, name of the Federal agency, and name of the
pass-through entity.
FEDERAL PROVISIONS
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44. AMERICANS WITH DISABILITIES ACT (ADA)
The contractor agrees to comply with the requirements of 49 U.S.C. § 5301 (d), which
states the Federal policy that the elderly and persons with disabilities have the same
right as other persons to use mass transportation service and facilities, and that special
efforts shall be made in planning and designing those services and facilities to
implement that policy. The contractor also agrees to comply with all applicable
requirements of section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §
794, which prohibits discrimination on the basis of handicaps, with the Americans with
Disabilities Act of 1990 (ADA), as amended, 42 U.S.C. §§ 12101 et seq., which requires
that accessible facilities and services be made available to persons with disabilities,
including any subsequent amendments to that Act, and with the Architectural Barriers
act of 1968, as amended, 42 U.S.C. §§ 4151 et seq., which requires that buildings and
public accommodations be accessible to persons with disabilities, including any
subsequent amendments to that Act. In addition, the contractor agrees to comply with
any and all applicable requirements issued by the FTA, DOT, DOJ, U.S. GSA, U.S. EEOC,
U.S. FCC, any subsequent amendments thereto and any other nondiscrimination
statute(s) that may apply to the Project.
45. BYRD ANTI-LOBBYING AMENDMENT
Contractors who apply or bid for an award of $100,000 or more shall 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 m ember of Congress in
connection with obtaining any Federal contract, grant, or any other award covered by
31 U.S.C. § 1352. Each tier shall also disclose any lobbying with nonfederal funds that
takes place in connection with obtaining any Federal award. Such disclosures are
forwarded from tier to tier up to the Agency.”
46. NO GOVERNMENT OBLIGATION TO THIRD PARTIES
The Agency and Contractor acknowledge and agree that, notwithstanding any concurrence by
the Federal Government in or approval of the solicitation or award of the underlying Contract,
absent the express written consent by the Federal Government, the Federal Government is not
a party to this Contract and shall not be subject to any obligations or liabilities to the Agency,
Contractor or any other party (whether or not a party to that contract) pertaining to any matter
resulting from the underlying Contract. The Contractor agrees to include the above clause in
each subcontract financed in whole or in part with Federal assistance provided by the FTA. It is
further agreed that the clause shall not be modified, except to identify the subcontractor who
will be subject to its provisions.
44. BUS TESTING
The operator of the bust testing facility is required to provide the resulting test report
to the entity that submits the bus for testing. The manufacturer or dealer of a new bus
FEDERAL PROVISIONS
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model or a bus produced with a major change in component or configuration is
required to provide a copy of the corresponding full bus testing report and any
applicable partial testing report(s) to the Agency during the point in the procurement
process specified by the Agency, but in all cases before final acceptance of the first bus
by the Agency. The complete bus testing report requirements are provide in 49 C.F.R.
§ 665.11.
45. CARGO PREFERENCE REQUIREMENTS
The contractor agrees:
a. to use privately owned United States-Flag commercial vessels to ship at least
50 percent of the gross tonnage (computed separately for dry bulk carriers, dry
cargo liners, and tankers) involved, whenever shipping any equipment,
material, or commodities pursuant to the underlying contract to the extent
such vessels are available at fair and reasonable rates for United States-Flag
commercial vessels;
b. to furnish within 20 working days following the date of loading for shipments
originating within the United States or within 30 working days following the
date of loading for shipments originating outside the United States, a legible
copy of a rated, "onboard" commercial ocean bill-of-lading in English for each
shipment of cargo described in the preceding paragraph to the Division of
National Cargo, Office of Market Development, Maritime Administration,
Washington, DC 20590 and to the FTA Recipient (through the contractor in the
case of a subcontractor's bill-of-lading.); and
c. to include these requirements in all subcontracts issued pursuant to this
contract when the subcontract may involve the transport of equipment,
material, or commodities by ocean vessel.
46. PRE-AWARD AND POST-DELIVERY AUDITS OF ROLLING STOCK PURCHASES
The Contractor agrees to comply with 49 U.S.C. § 5323(m) and FTA's implementing regulation at
49 C.F.R. part 663. The Contractor shall comply with the Buy America certification(s) submitted
with its proposal/bid. The Contractor agrees to participate and cooperate in any pre-award and
post-delivery audits performed pursuant to 49 C.F.R. part 663 and related FTA guidance.
EXHIBIT 1
Title VI/Non-Discrimination Assurances
Appendix A
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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:
1. Compliance with Regulations: The contractor (hereinafter includes consultants) will comply with the Acts
and the Regulations relative to Non-discrimination in Federally-assisted programs of the U.S. Department of
Transportation, the Federal Highway Administration, as they may be amended from time to time, which are
herein incorporated by reference and made a part of this contract.
2. Non-discrimination: The contractor, with regard to the work performance 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.
3. 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 Regulations relative to Non-discrimination on the grounds of race, color, or national origin.
4. Information and Reports: The contractor will provide all information and reports required by the Acts, the
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 by the Recipient or the Federal
Highway Administration to be pertinent to ascertain compliance with such Acts, 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 Recipient or the Federal
Highway Administration, as appropriate, and will set forth what efforts it has made to obtain the
information.
5. Sanctions for Noncompliance: In the event of a contractor's noncompliance with the Non-discrimination
provisions of this contract, the Recipient will impose such contract sanctions as it or the Federal Highway
Administration ,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.
6. Incorporation of Provisions: The contractor will include the provisions of paragraphs one through six in every
subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts, the
Regulations and directives issued pursuant thereto. The contractor will take action with request to any
subcontract or procurement as the Recipient or the Federal Highway Administration may direct as a means of
enforcing such provisions including sanctions for noncompliance. Provided, that if the contractor becomes
involved in, or is threatened with litigation by a subcontractor or supplier because of such direction, the
contractor may request the Recipient to enter into any litigation to protect the interests of the Recipient. In
addition, the contractor may request the United States to enter into the litigation to protect the interests of the
United States.
EXHIBIT 2
Title VI/Non-Discrimination Assurances
Appendix E
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During the performance of this contract, the contractor, for itself, its assignees, and successors in interest
(hereinafter referred to as the "contractor") agrees to comply with the following non-discrimination statutes
and authorities; including but not limited to:
Pertinent Non-Discrimination Authorities:
• 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.
• 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);
• Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 etseq.), (prohibits discrimination on the basis of sex);
• 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;
• The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), (prohibits discrimination on the
basis of age);
• 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);
• 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);
• 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;
• 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);
• Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-
Income Populations, which ensures 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;
• 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 compliance with Title VI, you must take reasonable steps to ensure that LEP
persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100);
• 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. 1687 et. seq).
EXHIBIT 3
ADOT Procurement Quarterly Usage Report
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This exhibit outlines the content required for the quarterly usage report. Usage reports will be submitted to the appropriate Procurement Officer in accordance with the
requirements specified in Special Terms and Conditions. The Department reserves the rig ht to make additions, deletions and changes as deemed necessary.
Reporting Period:
Contract ID/Code: Contact Name: Alternate Contact Name:
Contract
Label/Description:
Contact Phone
Number:
Alternate Contact Phone
Number:
Contractor: Contact Email: Alternate Contact Email:
Contractor Address:
Agency/Org/Unit Customer
Name Delivery Address
PO Number
or Identify as
“P-Card”
Order
Date
Contract
Item
Number
Contract Item
Description Quantity Unit of
Measure
Contract
Unit
Price
Contract
Extended
Price
Invoice
Number
EXHIBIT 4
ON-SITE MANUFACTURER INSPECTION
COMPLIANCE CERTIFICATION
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(Post-Delivery purchaser’s requirement, in compliance with the federal requirements of 49 U.S.C. Section
5323(m))
ON-SITE MANUFACTURER INSPECTION COMPLIANCE CERTIFICATION
(Rolling Stock Procurements for more than 10 vehicles for areas >200,000 in population)
As required by 49 CFR Part 663Subpart C, the
_________________________________________________________________________________________
(Recipient’s name)
Certifies that a resident inspector,
_________________________________________________________________________________________
(Name of inspector)
Was at
_________________________________________________________________________________________
(the manufacturer’s)
manufacturing site during the period of manufacture of the buses,
_________________________________________________________________________________________
(description of buses).
The inspector visually inspecting the buses, the _________________________________________ (the
recipient) has reviewed the inspection documentation, maintains a copy of this report, and certifies that the
buses meet the contract specifications.
ON-SITE MANUFACTURER INSPECTION COMPLIANCE CERTIFICATION
(Rolling Stock Procurements for more than 20 vehicles for areas < 200,000 in population)
As required by 49 CFR Part 663 Subpart C, the
_________________________________________________________________________________________
(Recipient’s name)
Certifies that a resident inspector,
_________________________________________________________________________________________
(Name of inspector)
Was at
_________________________________________________________________________________________
(the manufacturer’s)
manufacturing site during the period of manufacture of the buses,
_________________________________________________________________________________________
(description of buses).
The inspector visually inspecting the buses, the
_____________________________________________________ (the recipient) has reviewed the inspection
documentation, maintains a copy of this report, and certifies that the buses meet the contract specifications.
Signature _________________________________________________ Date ______/ ______/ ______
Title ______________________________________________________________________________
EXHIBIT 5
PRE-AWARD AUDIT AND CERTIFICATION
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EXHIBIT 6
PURCHASER'S PRE-AWARD REQUIREMENTS
CERTIFICATION
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EXHIBIT 7
PURCHASER'S POST-AWARD REQUIREMENTS
CERTIFICATION
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EXHIBIT 7
PURCHASER'S POST-AWARD REQUIREMENTS
CERTIFICATION
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EXHIBIT 8
PURCHASER'S POST-AWARD REQUIREMENTS
CERTIFICATION
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Procurement
ARIZONA DEPARTMENT OF TRANSPORTATION
1739 W. Jackson Street, MD 100P
Phoenix, AZ 85007
602.712.7211
Solicitation Amendment Summary
SOLICITATION NO.: BPM004157 AMENDMENT NO.: One (1)
DESCRIPTION: New Vehicles Purchase
Rev. 04/2020
Pursuant to the Uniform Instructions to Offerors, Item B.6, Solicitation Amendments, the above referenced
solicitation shall be amended as follows:
1. The solicitation due date has been changed from January 17, 2022 at 3:00 PM MST to January 19, 2022
at 3:00 PM MST.
2. All other terms, conditions and provisions of this solicitation remain unchanged.
Procurement
ARIZONA DEPARTMENT OF TRANSPORTATION
1739 W. Jackson Street, MD 100P
Phoenix, AZ 85007
602.712.7211
Solicitation Amendment Summary
SOLICITATION NO.: BPM004157 AMENDMENT NO.: Two (2)
DESCRIPTION: New Vehicles Purchases
Rev. 04/2020
Pursuant to the Uniform Instructions to Offerors, Item B.6, Solicitation Amendments, the above referenced
solicitation shall be amended as follows:
1. Specifications
The following sections are hereby modified to read:
a. Paragraph 2.1 “The State of Arizona Department of Transportation (Department) is seeking to
contract with a qualified vendor(s) who can provide new vehicles (all fuel types, hybrid, and full
electric) including but not limited to: Sedans, Trucks up to 19,500 GVWR, Vans, Sport Utility
Vehicles (SUVs), and Crossovers for the State of Arizona and participating Eligible Agencies.
These vehicles will be used to support official organizational goals. These vehicles will be used
on highways, city/county roads and shall be designed to operate under typical Arizona ambient
temperatures.”
b. Paragraph 3.3.1, 3.5.1 and 3.5.2 is hereby removed.
c. Paragraph 4.1: “The Contractors are encouraged to provide a full line of new vehicles (gasoline,
hybrid, full electric) including but not limited to the following categories: Sedans, Trucks up to
19,500 GVWR, Vans (cargo, passenger, transit, etc.), Sport Utility Vehicles (SUVs), and
Crossovers. Eligible Agencies throughout the State will have varying vehicle needs. Contractors
are to provide a full line of manufactured new vehicles and all subsequent variants of each
vehicle; including but not be limited to: models and manufacturer options, trim package, etc. to
meet each need of an Eligible Agency.”
d. Paragraph 4.1.1 is hereby removed.
e. Paragraph 4.4.1:” The Eligible Agency may request the awarded Contractor(s) to up-fit/modify
any vehicle for specific organizational needs. For example, the cab and chassis of ½ ton, ¾ ton,
and/or up to 19,500 GVW trucks may require a specialized body (i.e.: dump body, landscape
body, etc.). Other vehicles may require interior and/or exterior modifications per the individual
Eligible Agency. “
f. Paragraph 4.6.1: ” Anti-slip differential for two-wheel drive pickup trucks, ¾ ton, up to 19,500
GVW.”
2. Special Terms and Conditions
The following sections are hereby modified to read:
a. Paragraph 11.1, (a-g): “Phase 1 and 2 pricing for vehicles shall be a minimum Percentage off MSRP,
less the manufacturer’s rebates and any additional discounts available for that model/power-train
combination.
a. Contractor shall provide a copy of manufacturer’s invoice to the ordering agency upon
request. The manufacturer’s invoice shall be unaltered to include original pricing from the
manufacturer.
Procurement
ARIZONA DEPARTMENT OF TRANSPORTATION
1739 W. Jackson Street, MD 100P
Phoenix, AZ 85007
602.712.7211
Solicitation Amendment Summary
SOLICITATION NO.: BPM004157 AMENDMENT NO.: Three (3)
DESCRIPTION: New Vehicles Purchases
Rev. 04/2020
Pursuant to the Uniform Instructions to Offerors, Item B.6, Solicitation Amendments, the above referenced
solicitation shall be amended as follows:
1. Specifications
The following sections are hereby modified to read:
a. Paragraph 3.5 “For Phase Two (2) vehicles, the Contractor shall supply a quote within five (5)
calendar days after receiving a request from the Eligible Agency. The quotation shall include but
not be limited to the following information: State contract number, vehicle availability and
delivery lead-time, Vehicle Identification Number (VIN), dealer stock number, vehicle base bid
price, itemized options, applicable tax, delivery cost, total price, and point of contact. For
vehicles requiring up-fit/modifications, all applicable cost may be included in quotation or as a
separate quotation.”
b. Paragraph 3.10: “For Phase One (1) the Contractor shall provide the Eligible Agency copies of
the manufacturer's vehicle identification numbers (VIN#) to confirm vehicles have been ordered
unless impossible due to manufacture delay within ninety (90) calendar days after receipt of a
purchase order. If confirmation of manufacturer’s VIN #(s) is not received within this timeframe
the Eligible Agency has the option to award to the second lowest bidder meeting specifications.
This shall be considered a mandatory requirement and the timeframe must be met unless there
is a manufacture delay. Failure to provide this document for each vehicle ordered may be cause
for determination of default of contract.”
2. All other terms, conditions and provisions of this solicitation remain unchanged.
Procurement
ARIZONA DEPARTMENT OF TRANSPORTATION
1739 W. Jackson Street, MD 100P
Phoenix, AZ 85007
602.712.7211
Solicitation Amendment Summary
SOLICITATION NO.: BPM004157 AMENDMENT NO.: Two (2)
DESCRIPTION: New Vehicles Purchases
Rev. 04/2020
b. Transportation costs to transfer a vehicle from another dealer for a Phase 2 or purchase
from stock may be added to the cost of the vehicle. The justification for this cost is at the
discretion of the Eligible Agency.
c. Any reference to Phase 1 pricing shall be in reference to vehicles ordered prior to the
factory cut-off date.
d. Any reference to Phase 2 pricing shall be in reference to vehicles purchased from stock or
“on the lot”.
e. Phase 2 pricing shall receive the same cost considerations as Phase 1 pricing, all discounts
and rebates should be passed onto the Eligible Agency.
f. All vehicles are to be billed at prices in effect at the time of order, not the date of
shipment.
g. Pricing for vehicles shall include all discounts and deductions, less Federal and State taxes.
Pricing shall be firm for life of contract unless amended by way of contract change order. “
b. Paragraph 22 is hereby replaced with the following: “The Contractor shall furnish Two (2) Usage
reports, the first to the Department on a quarterly basis showing purchasing activity under this contract.
This usage report shall be provided in a form substantially equivalent to Exhibit 03. Usage reports shall
be submitted to the Procurement Officer no later than 30 days after the end of each quarter.
Usage report quarters shall be defined as follows:
January through March – Report due April 30
April through June – Report due July 30
July through September – Report due October 30
October through December – Report due January 30
Contractor shall submit the second to the State documenting all Contract sales to both Eligible
Agencies and Co-Op Buyers, itemized separately. A Quarterly Usage Report shall still be
submitted; even if there have been no sales to either Eligible Agencies and/or Co-Op Buyers.
Contractor shall further itemize divisions, groups or areas within a given Eligible Agency if they
place Orders independently of each other. Failure to submit the report is a material breach of
contract, and will entitle State to its remedies under Article 8 and its right to terminate for
default under Article 9. Contractor shall submit the report using the forms and following the
instructions on the State Procurement Office website:
https://spo.az.gov/contractor-resources/statewide-contracts-administrative-fee”
c. Paragraph 25: Co-op administrative fee has hereby been removed.
Procurement
ARIZONA DEPARTMENT OF TRANSPORTATION
1739 W. Jackson Street, MD 100P
Phoenix, AZ 85007
602.712.7211
Solicitation Amendment Summary
SOLICITATION NO.: BPM004157 AMENDMENT NO.: Two (2)
DESCRIPTION: New Vehicles Purchases
Rev. 04/2020
3. Offer Response Form is hereby replaced with Revision Two (2) attachment.
4. All other terms, conditions and provisions of this solicitation remain unchanged.
Procurement
ARIZONA DEPARTMENT OF TRANSPORTATION
1739 W. Jackson Street, MD 100P
Phoenix, AZ 85007
602.712.7211
Solicitation Amendment Summary
SOLICITATION NO.: BPM004157 AMENDMENT NO.: Three (3)
DESCRIPTION: New Vehicles Purchases
Rev. 04/2020
Pursuant to the Uniform Instructions to Offerors, Item B.6, Solicitation Amendments, the above referenced
solicitation shall be amended as follows:
1. Specifications
The following sections are hereby modified to read:
a. Paragraph 3.5 “For Phase Two (2) vehicles, the Contractor shall supply a quote within five (5)
calendar days after receiving a request from the Eligible Agency. The quotation shall include but
not be limited to the following information: State contract number, vehicle availability and
delivery lead-time, Vehicle Identification Number (VIN), dealer stock number, vehicle base bid
price, itemized options, applicable tax, delivery cost, total price, and point of contact. For
vehicles requiring up-fit/modifications, all applicable cost may be included in quotation or as a
separate quotation.”
b. Paragraph 3.10: “For Phase One (1) the Contractor shall provide the Eligible Agency copies of
the manufacturer's vehicle identification numbers (VIN#) to confirm vehicles have been ordered
unless impossible due to manufacture delay within ninety (90) calendar days after receipt of a
purchase order. If confirmation of manufacturer’s VIN #(s) is not received within this timeframe
the Eligible Agency has the option to award to the second lowest bidder meeting specifications.
This shall be considered a mandatory requirement and the timeframe must be met unless there
is a manufacture delay. Failure to provide this document for each vehicle ordered may be cause
for determination of default of contract.”
2. All other terms, conditions and provisions of this solicitation remain unchanged.
EXHIBIT B TOCOOPERATIVE SERVICES AGREEMENT BETWEENTHE TOWN OF FOUNTAIN HILLS ANDDON SANDERSON FORD, INC.DBASANDERSON FORD [Quote or Work Order]
See following pages.
Dave Harris (623) 930-5961 dharris@sandersonford.com
Marty Tritschler (623) 930-5963 mtritschler@sandersonford.com
Jerry Becker (623) 842-8795 jbecker@sandersonford.com
Caleb Haley (623) 842-8618 chaley@sandersonford.com
Department Fax: (623) 930-5966
Date:
Customer:FAX:
Base Price:$38,335.00
1.N/C
2.Included
3.Included
4.Included
5.Included
6.Included
7.Included
8.Included
9.N/C
10.No Charge Add
11.$152.00
12.-$1,917.00
13.Included
14.Included
15.
16.
17.$5,486.00
Upgrade Options Total:$3,721.00
Bid Price (w/options):$42,056.00
Sales Tax (8.5%):$3,574.76
Tire Tax:$5.00
Ford Extended Service Plan:
Total Delivered Price:$45,635.76
Opened. 2025 Pricing Currently Unavailable. Estimated +/- 15% Increase.
Sandstone w/Cloth Captain's Chairs (7N)
Wheels: 18" 5-Spoke Silver-Painted Aluminum
119.1" Wheelbase
Monotone Paint Application | Oxford White (YZ)
Front License Plate Bracket (153)
Front & Second Row Floor Liners (16A)
State Contract 5% Discount
3.58 Non-Limited-Slip Rear Axle Ratio
Tires: P255/65R18 AS BSW
AZ Legal Window Tint per State Contract
Four(4) Key Fobs per State Contract
*** 2024 Model Year Explorer Order Bank Closed For Government
& Commercial Orders. Will Have To Order As 2025 When Order Bank Is
2024 Explorer 4dr 4x2 Base Oxford White (YZ) (K7B)
***### State of Arizona Contract CTR059316
Government Fleet Sales Managers
Transmission: 10-Speed Automatic (44T)
Upgrade Options:
Equipment Group 100A
Engine: 2.3L EcoBoost I-4 (99H)
Town of Fountain Hills
4/29/2024
Vehicle Description: