Arizona Administrative Code › Title 7 - EDUCATION › Chapter 2 - STATE BOARD OF EDUCATION › Article 10 - SCHOOL DISTRICT PROCUREMENT › Part XII - GENERAL CONTRACT REQUIREMENTS › Section R7-2-1087 - Contract Clauses

Current through Register Vol. 30, No. 28, July 12, 2024
A. The school
				  district shall include in solicitations and contracts all contract clauses
				  necessary to ensure the school district's interests are addressed. The school
				  district may modify clauses for inclusion in any particular school district
				  contract, provided that any variations are supported by a written determination
				  that states the circumstances justifying the variation and provided that notice
				  of any material variation is stated in the solicitation.
B. All contract clauses shall be consistent
				  with the provisions of Articles 10 and 11.
C. The school district may permit or require
				  the inclusion of clauses providing for appropriate remedies, adjustments in
				  prices, time of performance or other contract provisions.
D. A contract for the procurement of
				  construction or construction services shall include a provision for the
				  recovery of damages related to expenses incurred by the contractor for a delay
				  for which the school district is responsible, that is unreasonable under the
				  circumstances and that was not within the contemplation of the parties to the
				  contract. This subsection does not void any provision in the contract that
				  requires notice of delays, provides for arbitration or any other procedure for
				  settlement or provides for liquidated damages.
E. A provision, covenant, clause or
				  understanding in, collateral to or affecting a construction contract or design
				  professional service contract that makes the contract subject to the laws of
				  another state or that requires any litigation, arbitration or other dispute
				  resolution proceeding arising from the contract to be conducted in another
				  state is against the public policy of this state and is void and
				  unenforceable.
F. A provision or
				  clause for contract termination in accordance with A.R.S. §
										38-511.
				  The school district may cancel the Contract within three 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 school district 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 party to the 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.
G. A provision or clause for
				  contract termination if it appears that any person has not complied with A.R.S.
				  §
										15-213(O).
				  The school district or school purchasing cooperative may, by written notice,
				  terminate the Contract, in whole or in part, if the school district or school
				  purchasing cooperative determines that any person or vendor has offered,
				  conferred or agreed to confer any personal gift or benefit on any employee of
				  the school district or school purchasing cooperative who supervised or
				  participated in the planning, recommending, selecting or contracting of the
				  Contract.
H. A provision or clause
				  for contract termination for gratuities. The school district or school
				  purchasing cooperative may, by written notice, terminate the Contract in whole
				  or in part, if the school district or school purchasing cooperative 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 school
				  district or school purchasing cooperative 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 making of
				  any determination or decision about contract performance.
I. A
				  covenant, clause or understanding in, collateral to or affecting a construction
				  contract or subcontract or a design professional services contract or
				  subcontract that purports to indemnify, to hold harmless or to defend the
				  promisee of, from or against liability for loss or damage resulting from the
				  negligence of the promisee or the promisee's agents, employees or indemnitee is
				  against the public policy of this state and is void.
J. If a design
				  professional provides work, services, studies, planning, surveys or other
				  preparatory work in connection with a public building or improvement, the
				  school district or property owner may require that the design professional
				  services contract or subcontract require the design professional to indemnify
				  and hold harmless the school district or property owner, and its officers and
				  employees, from liabilities, damages, losses and costs, including reasonable
				  attorney fees and court costs, but only to the extent caused by the negligence,
				  recklessness or intentional wrongful conduct of such design professional or
				  other persons employed or used by such design professional in the performance
				  of the contract or subcontract.
K. A design
				  professional services subcontract entered into in connection with a public
				  building or improvement may also require any design professional to indemnify
				  and hold harmless the school district or property owner and the indemnified
				  design professional who executed the subcontract, and their respective owners,
				  officers and employees, from liabilities, damages, losses and costs, including
				  reasonable attorney fees and court costs, but only to the extent caused by the
				  negligence, recklessness or intentional wrongful conduct of such design
				  professional, or persons employed or used by the indemnifying design
				  professional in connection with the subcontract.
L. Nothing in this
				  Section shall prohibit the requirement of insurance coverage that complies with
				  this Section, including the designation of the school district or property
				  owner as an additional insured on a general liability insurance policy or as a
				  designated insured on an automobile liability policy provided in connection
				  with a construction contract or subcontract or design professional services
				  contract or subcontract.
M. Notwithstanding
				  subsection (I), a contractor who is responsible for the performance of a
				  construction contract or subcontract may fully indemnify a person, firm,
				  corporation, state or other agency for whose account the construction contract
				  or subcontract is not being performed and that, as an accommodation, enters
				  into an agreement with the contractor that permits the contractor to enter on
				  or adjacent to its property to perform the construction contract or subcontract
				  for others.
N. Except as provided in subsections (J), (K) and (L),
				  a design professional services contract or subcontract entered into in
				  connection with a public building or improvement shall not require that a
				  design professional defend, indemnify, insure or hold harmless the school
				  district or property owner or its employees, officers, directors, agents,
				  contractors or subcontractors from any liability, damage, loss, claim, action
				  or proceeding, and any contract provision that is not permitted by subsections
				  (J), (K) and (L) is against the public policy of this state and is
				  void.
O. If any provision or condition contained in this
				  Section conflicts with any provision of a contract between the school district
				  and the federal government, such provision shall not apply to any construction
				  contract or subcontract, or design professional services contract or
				  subcontract to the extent such conflict exists, but all provisions of this
				  Section with which there is no such conflict, shall apply.
P. In
				  this Section:
1. "Construction contract or
				  subcontract" means a written or oral agreement relating to the construction,
				  alteration, repair, maintenance, relocation, moving, demolition or excavation
				  of a structure, street or roadway, appurtenance, facility, development, or
				  other improvement to land.
2.
				  "Design professional services" means architect services, engineer services,
				  land surveying services, geologist services or landscape architect services or
				  any combination of those services performed by or under the supervision of a
				  design professional or any person employed by the design
				  professional.
3. "Design
				  professional services contract or subcontract" means a written or oral
				  agreement relating to the planning, design, construction administration, study,
				  evaluation, consulting, inspection, surveying, mapping, material sampling,
				  testing or other professional, scientific or technical services furnished in
				  connection with any actual or proposed study, planning, survey, environmental
				  remediation, construction, improvement, alteration, repair, maintenance,
				  relocation, moving, demolition or excavation of a structure, street or roadway,
				  appurtenance, facility, development or other improvement to land.
4. "Other persons employed or used" means a
				  subcontractor to a contractor or design professional in any tier, or any other
				  person or entity who performs work or design professional services, or provides
				  labor, services, materials or equipment in connection with a construction
				  contract or subcontract or design professional service contract or subcontract
				  subject to this Section.