04824-02 Exhibit D - Contract.docx

STATE COOPERATIVE PURCHASING SCHEDULE

CONTRACT

NO. 04824-02

TRANSIT BUSES

CATEGORY: LIGHT/MEDIUM

For Use by For Use by Washington State Transit Bus Cooperative Purchasers and other Eligible Purchasers

By and Between

STATE OF WASHINGTON

DEPARTMENT OF ENTERPRISE SERVICES

and

Dated _____________________, 20__

CONTRACT NO.04824-01 –TRANSIT BUSES (HEAVY DUTY) 0

(Rev. 2025-01-22)

CONTRACT NO.04824-02 –TRANSIT BUSES (MEDIUM/LIGHT DUTY) 0

(Rev. 2025-01-22)

STATE COOPERATIVE PURCHASING SCHEDULE

COOPERATIVE CONTRACT

NO. 04824-02

TRANSIT BUSES

CATEGORY: LIGHT AND MEDIUM DUTY

This Washington Cooperative Purchasing Agreement (Cooperative Purchasing Agreement or “Contract”) is made and entered into by and between the State of Washington acting by and through the Department of Enterprise Services, a Washington State governmental agency (“Enterprise Services”) and ____________________, a ________________ (“Contractor”) and is dated and effective as of _______________ __, 20__.

R E C I T A L S A. Pursuant to Legislative authorization, Enterprise Services, on behalf of the State of Washington, is authorized to develop, solicit, and establish enterprise procurement solutions, including statewide contracts, for goods and/or services to support Washington state agencies (“Contract”). See RCW 39.26.050(1). The Washington State Legislature also has authorized Enterprise Services to make these contracts available, pursuant to an agreement in which Enterprise Services ensures full cost recovery, to other local or federal government agencies or entities, public benefit nonprofit organizations, and any tribes located in the State of Washington. See RCW 39.26.050(1) & (2).

B. The Washington State Legislature has also authorized Enterprise Services to participate in, sponsor, conduct, or administer cooperative purchasing agreements. See RCW 39.26.050(1) and RCW 39.26.060.

C. Pursuant to Section 3019 of the FAST Act, the State of Washington acting by and through Enterprise Services, may enter into a cooperative procurement contract with one or more vendors if the contractors agree to provide an option to purchase rolling stock and related equipment to such State government and any other Purchaser and such State government acts throughout the term of the contract as the lead procurement agency.

D. The State of Washington, acting by and through Enterprise Services, is a member of and the lead procurement for the Washington State Transit Bus Cooperative. The Washington State Transit Bus Cooperative is a cooperative purchasing agreement for eligible Purchasers to procure transit buses through a competitively solicited and awarded Cooperative Purchasing Agreement.

E. Enterprise Services, on behalf of the State of Washington, as part of competitive governmental procurement, issued Competitive Solicitation No. _____ dated __________, 2025 for transit buses.

F. Enterprise Services evaluated all responses to the Competitive Solicitation and identified the Contractor as the apparent successful bidder.

G. Enterprise Services has determined that entering into this Contract will meet the identified needs and be in the best interest of the State of Washington.

H. The purpose of this Contract is to enable eligible Purchasers to purchase the Goods and/or Services as set forth herein.

A G R E E M E N T NOW THEREFORE, in consideration of the mutual promises, covenants, and conditions set forth herein, the parties hereto hereby agree as follows:

1. TERM. The term of this Cooperative Purchasing Agreement is twenty-four (24) months, commencing April 1, 2026 and ending March 31, 2028; Provided, however, that if Contractor is not in default and if, by January 31, 2028, in Enterprise Services’ reasonable judgment, Contractor satisfactorily has met the performance-based goals for contract extension, Enterprise Services shall extend the term of this Cooperative Purchasing Agreement, by written amendment, for up to thirty-six (36) additional months, for a maximum contract term of sixty (60) months Such extension amendment shall be on the same terms and conditions as set forth in this Cooperative Purchasing Agreement. To earn the performance-based term extension, Contractor must achieve the following performance-based metrics:

Note: Contractor must pay the VMF within thirty (30) calendar days of invoice from Enterprise Services. If Contractor is delinquent in timely paying the VMF for three (3) or more quarters within the first nine (9) quarters of the Contract term, Contractor shall not be eligible for a performance-based extension.

Contract Sales Reports:

Contractor timely provides to Enterprise Services, with no less than a 75% on-time rate over the contract term, the required Contract quarterly sales reports.

Note: Contractor must provide the quarterly sales reports to Enterprise Services within thirty (30) calendar days of the quarter’s end. If Contractor is delinquent in providing the quarterly sales reports for three (3) or more quarters within the first nine (9) quarters of the Contract term, Contractor shall not be eligible for a performance-based extension.

2. ELIGIBLE PURCHASERS. This Contract may be utilized by any of the following types of entities (each an eligible “Purchaser”):

2.1. WASHINGTON STATE AGENCIES. All Washington state agencies, departments, offices, divisions, boards, and commissions.

2.2. WASHINGTON STATE INSTITUTIONS OF HIGHER EDUCATION. Any the following institutions of higher education (colleges) in Washington:

· State universities – i.e., University of Washington & Washington State University;

· Regional universities – i.e., Central Washington University, Eastern Washington University, & Western Washington University

· Evergreen State College;

· Community colleges; and

· Technical colleges.

2.3. CONTRACT USAGE AGREEMENT PARTIES. Any of the following types of entities that have executed a Contract Usage Agreement with Enterprise Services:

· Political subdivisions (e.g., counties, cities, school districts, public utility districts) in the State of Washington;

· Federal governmental agencies or entities;

· Public-benefit nonprofit corporations (i.e., public benefit nonprofit corporations as defined in RCW 24.03A.245) who receive federal, state, or local funding); and

· Federally recognized Indian Tribes located in the State of Washington.

2.4. WASHINGTON COOPERATIVE CONTRACT USAGE AGREEMENT PURCHASERS. Any of the following types of entities that have executed a Washington Cooperative Contract Usage Agreement with Enterprise Services:

· State agency of any state of the United States; including the State of Hawaii and its participating jurisdictions.

· Local governments, local government agencies, or political subdivisions (e.g., counties, cities, school districts, public utility districts) of any state of the United States;

· Federal governmental agencies or entities;

· Federally recognized Indian Tribes located outside of the State of Washington.

3. SCOPE: INCLUDED GOODS AND/OR SERVICES & PRICES.

3.1. CONTRACT SCOPE. Pursuant to this Contract, Contractor is authorized to sell and provide only those Goods and/or Services set forth in Exhibit A – Included Goods/Services for the prices set forth in Exhibit B – Prices for Goods/Services. Contractor shall not represent to any Purchaser under this Contract that Contractor has contractual authority to sell or provide any Goods and/or Services beyond those set forth in Exhibit A – Included Goods/Services.

(a) Goods. For purposes of this Contract, “Goods” means all equipment, materials, supplies, ancillary parts, accessories, components and other items purchased by Purchaser pursuant to this Contract and as identified in the Purchase Order.

(b) Services. For purposes of this Contract, “Services” means all services of any nature ordered by Purchaser pursuant to this Contract and as identified in the Purchase Order.

(c) Specifications. Where applicable, specifications for Goods and/or Services are detailed in this Contract and the Purchase Order. Unless otherwise specified in the Purchase Order, all Goods and/or Services provided shall be new and unused of the latest model or design.

3.2. STATE’S ABILITY TO MODIFY SCOPE OF CONTRACT. Subject to mutual agreement between the parties, Enterprise Services reserves the right to modify the Goods and/or Services included in this Contract; Provided, however, that any such modification shall be effective only upon thirty (30) calendar days advance written notice; and Provided further, that any such modification must be within the scope of the Competitive Solicitation for this Contract.

3.3. PURCHASER CHANGE ORDERS.

(a) Purchasers may, at any time, by written order designated or indicated to be a change order, make changes in their Purchase Order within the general scope of this Contract, including changes:

(1) In the specifications;

(2) In the method or manner of performance of the work;

(3) In the Government-furnished facilities, equipment, materials, services, or site; or

(4) Directing acceleration in the performance of the work.

(b) Any other written or oral order (which includes direction, instruction, interpretation, or determination) from the Purchaser that causes a change shall be treated as a change order under this clause; provided, that Contractor gives the Purchaser written notice stating (1) the date, circumstances, and source of the order and (2) that Contractor regards the order as a change order.

(c) Except as provided in this clause, no order, statement, or conduct of the Purchaser shall be treated as a change under this clause or entitle Contractor to an equitable adjustment.

(d) If any change under this clause causes an increase or decrease in Contractor’s cost of, or the time required for, the performance of any part of the work under this Contract, whether or not changed by any such order, the Purchaser will make an equitable adjustment and modify the Purchase Order in writing. However, except for an adjustment based on defective specifications, no adjustment for any change under this clause shall be made for any costs incurred more than twenty (20) days before Contractor gives written notice as required. In the case of defective specifications for which the Purchaser is responsible, the equitable adjustment shall include any increased cost reasonably incurred by the Contractor in attempting to comply with the defective specifications.

(e) Contractor will assist Purchaser in obtaining all of the requested cost details as may be required for FTA-assisted purchases. Failure to respond or provide needed details may be grounds for the Purchaser to cancel the purchase without penalty.

(f) The Contractor must assert its right to an adjustment under this clause within 30 days after

1. Receipt of a written change order under paragraph (a) of this clause or

2. The furnishing of a written notice under paragraph (b) of this clause, by submitting to the Contracting Officer a written statement describing the general nature and amount of the proposal, unless this period is extended by the Purchaser. The statement of proposal for adjustment may be included in the notice under paragraph (b) above.

(g) No proposal by the Contractor for an equitable adjustment shall be allowed if asserted after final payment under this Contract.

(h) This clause does not supersede FTA Circular C 4220.1G.

3.4. ECONOMIC PRICE ADJUSTMENT. Starting October 1, 2026 contractor may request price adjustments, including Options, to the prices set forth in Exhibit B – Prices for Goods/Services, on October 1 and April 1. Requests must be made between September 20th and September 30th, and between March 20th and March 30th, respectively. Contracts that do not request an adjustment during this time waive their price adjustment for that period, future adjustments will not include adjustment for the non-requested time period. The prices shall be adjusted as set forth below, based upon the percent changes (whether up or down) in the United States Department of Labor, Bureau of Labor and Statistics (BLS) indices described below, for the most recent year. All calculations for the index shall be based upon the latest version of data published as of biannual anniversary each year. If an index is recoded (i.e., the recoded index is a direct substitute for the prior index according to the BLS), this Contract will use the recoded index, as applicable. If an index becomes unavailable, Enterprise Services shall substitute a proxy index. If there is not a direct substitute, the next higher aggregate index available shall be used. Prices will be adjusted on October 1 and April 1 each year through Enterprise Services updating Exhibit B – Prices for Goods/Services through this process without a contract amendment and posting the new prices on the public facing webpage. The economic adjustment shall be calculated as follows:

BLS Index: Truck and Bus Bodies, Series No. WPU 1413, New Price = Old Price x (Current Period Index/Base Period Index).

3.5. PRICE CEILING. Although Contractor may offer lower prices to Purchasers, during the term of this Cooperative Purchasing Agreement, Contractor guarantees to provide the Heavy Duty Transit Buses at no greater than the prices set forth in Exhibit B – Prices (subject to economic or other adjustment as set forth herein).

3.6. TEMPORARY PRICE ADJUSTMENT FOR UNEXPECTED TARIFF COSTS. Contractor, in regard to any Goods included in the Contract as specified in Exhibit A - Included Goods/Services, may request a temporary price adjustment for such Goods to address unexpected tariff costs as set forth herein.

(a) Contractor Request. Any temporary price adjustment for unexpected tariff costs must be requested, in writing, by Contractor.

(b) Basis for Contractor’s Request. Contractor’s request for a temporary price adjustment for unexpected tariff costs must identify and document each of the following:

(1) Goods: The Goods included in the Contract for which the price adjustment is requested. Contractor shall provide documentation to establish that Contractor acquired such Goods after the Tariffs became effective and that such Goods were in fact subject to the Tariffs (e.g., the Goods were not acquired in advance of the Tariffs, stockpiled, or exempted from the Tariffs).

(2) Current Prices: The current contractual prices for such Goods.

(3) Tariff Costs: The precise Tariffs that are impacting the current contractual prices for the Goods, including the following:

i. The applicable Tariffs;

ii. The date the Tariffs became effective;

iii. The exact amount of the Tariffs;

iv. The percentage of the Goods for which the Tariffs apply; and

v. The percentage of the current contractual prices for the Goods impacted by the Tariffs.

(4) Proposed Tariff-Based Prices: The proposed contractual prices that include the applicable price impacts from the Tariffs for such Goods and evidence of the cost impact on the Contractor’s costs (e.g., invoices, manufacturer quotes, shipping labels).

(5) Universal Application to Contractor’s Customers: Contractor’s confirmation that, prior to requesting the proposed Tariffs-based prices, Contractor has in fact already raised prices for such goods to all of its other customers/purchasers (and such other customers/purchasers do in fact pay such prices without rebate, discount, or any other price adjustment of any kind).

(c) Price Adjustment. Following receipt of Contractor’s request for a temporary price adjustment for unexpected tariff costs and appropriate documentation of all of the items set forth in subsection (b) above, Enterprise Services shall consider Contractor’s request. Such requests will be granted if, in Enterprise Services judgment, the following factor are satisfied:

(1) Tariff Must Be Unexpected: The Tariffs were unexpected by the marketplace and reasonably were not incorporated into the Contract pricing of any awarded contractor. Accordingly, Enterprise Services will consider whether the Goods previously were subject to tariffs as well as whether the unexpected tariffs were publicly announced such that, for example, businesses could hedge such tariff risk by purchasing in advance or modifying their supply chain to avoid or reduce such tariff impacts.

(2) No Other Contractual Price Adjustment: The Contract must not include any other price adjustment that, in effect, would result in ‘double paying’ for tariff impacts. For example, if the Contract includes an economic adjustment to prices, whether a fixed percentage or a third-party inflationary measure, any impact for tariffs will need to be reduced so as to preclude double paying.

(3) Time Limit. The proposed temporary price adjustment for unexpected tariff costs must be temporary. Accordingly, such adjustment, if any, shall be limited to a maximum length of twelve (12) months.

(4) Forward Application. In the event Enterprise Services grants Contractor’s request for a temporary price adjustment for unexpected tariff costs, such adjustment shall apply only to Purchaser Orders dated after Enterprise Services grants such price adjustment and only if such Orders include Goods provided by Contractor to Purchaser that have in fact been subject to tariffs as set forth herein.

(d) Change in Tariffs. Contractor, acting in good faith, must notify Enterprise Services, within five (5) business days if the raw materials, components, or goods utilized for the Goods included in this Contract are no longer subject to the tariff(s) for which Contractor received a temporary price adjustment for unexpected tariff costs as set forth herein or such tariff(s) have been reduced. In such event, Contractor shall cooperate with Enterprise Services to adjust the Contract prices for such Goods as expeditiously as possible. Enterprise Services may request, once a quarter, that Contractor provide evidence of the tariffs continued impact with similar information from the request. Failure to timely provide information will result in removal of the temporary price adjustment.

(e) Pricing Exhibit. In the event the Contract prices for Goods are adjusted as allowed in this section, Enterprise Services, upon such adjustment, shall delete the Contract’s existing Exhibit B – Prices for Included Goods/Services in its entirety and replace it with a revised Exhibit B – Prices for Included Goods/Services and provide Contractor with a copy of the same. Thereafter, any reference to Exhibit B – Prices for Included Goods/Services shall be deemed to be a reference to the revised Exhibit B – Prices for Included Goods/Services.

3.7. GOODS AND SERVICES ADDITION. Contractor may offer new goods and services, including options, within the scope of the authorized goods set forth in Exhibit A – Included Goods/Services to Purchasers to implement new technology solutions or meet specific Purchaser requirements. Goods and services added to purchase orders under the Contract must be commercially available at the time they are added and fall within the original scope of the Contract.

3.8. PRICING OF GOODS AND SERVICE ADDITIONS. Prices for additional Transit Bus goods and services performed under this Contract follow cost reimbursement rules under 4220.1G Ch VI, 2.c(1). Cost-reimbursement provides for payment of the Contractor’s allowable incurred costs, to the extent agreed to in the Contractor’s agreement with the Purchaser. Purchasers are required to include FAR Part 31 cost principles in their cost-reimbursement contracts for the purpose of determining allowable costs under the contract. Contract shall comply with Purchasers’ requests in determining reasonable prices, including but not limited to providing a breakdown of relevant incurred costs or individual component pricing to Purchaser upon request. A dispute on the reimbursement costs will follow the dispute procedures of this Contract.

3.9. CONTRACT INFORMATION. Enterprise Services shall maintain and provide to eligible Purchasers information regarding this Contract, including scope, pricing, and lowest responsive, responsible bidder designation. In addition, Enterprise Services identifies awarded contractors who qualify as Washington Small Businesses, Certified Veteran-Owned Businesses, or that, pursuant to the Contract provide Goods/Services that meet specified state procurement priorities as set forth in the Competitive Solicitation.

4. CONTRACTOR REPRESENTATIONS AND WARRANTIES. Contractor makes each of the following representations and warranties as of the effective date of this Contract and at the time any order is placed pursuant to this Contract. If, at the time of any such order, Contractor cannot make such representations and warranties, Contractor shall not process any orders and shall, within three (3) business days notify Enterprise Services, in writing, of such breach.

4.1. QUALIFIED TO DO BUSINESS. Contractor represents and warrants that Contractor is (a) in good standing; (b) qualified to do business in the State of Washington; and (c) registered with the Washington State Department of Revenue and the Washington Secretary of State.

4.2. TAXES. Contractor represents and warrants that Contractor is current, in full compliance, and has paid all applicable taxes owed to the State of Washington.

4.3. LICENSES; CERTIFICATIONS; AUTHORIZATIONS; & APPROVALS. Contractor represents and warrants that Contractor possesses and shall keep current during the term of this Contract all required licenses, certifications, permits, authorizations, and approvals necessary for Contractor’s proper performance of this Contract.

4.4. SUSPENSION & DEBARMENT. Contractor represents and warrants as previously certified in Contractor’s Bidder’s Certification, that neither Contractor nor its principals or affiliates presently are nor have ever been debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in any governmental contract by any governmental department or agency within the United States.

4.5. CIVIL RIGHTS. Contractor represents and warrants that Contractor complies with all applicable requirements regarding civil rights. Such requirements prohibit discrimination against individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity, or national origin.

4.6. WASHINGTON STATE WAGE THEFT PREVENTION. Contractor represents and warrants as previously certified in Contractor’s Bidder’s Certification, that during the term of this Contract and the three (3) year period immediately preceding the award of the Contract, Contractor has not been determined, by a final and binding citation and notice of assessment issued by the Washington Department of Labor and Industries or through a civil judgment entered by a court of limited or general jurisdiction, to be in willful violation of any provision of Washington state wage laws set forth in RCW 49.46, 49.48, or 49.52.

4.7. WASHINGTON STATE WORKERS’ RIGHTS (EXECUTIVE ORDER 18-03). Contractor represents and warrants, as previously certified in Contractor’s Bidder’s Certification, that Contractor does NOT require its employees, as a condition of employment, to sign or agree to mandatory individual arbitration clauses or class or collective action waivers. Contractor further represents and warrants that, during the term of this Contract, Contractor shall not, as a condition of employment, require its employees to sign or agree to mandatory individual arbitration clauses or class or collective action waivers.

4.8. WASHINGTON STATE PAY EQUALITY FOR ‘SIMILARLY EMPLOYED’ INDIVIDUALS. Contractor represents and warrants, as previously certified in Contractor’s Bidder’s Certification, that, among Contractor’s employees, ‘similarly employed’ individuals are compensated as equals. For purposes of this provision, employees are similarly employed if the individuals work for the same employer, the performance of the job requires comparable skill, effort, and responsibility, and the jobs are performed under similar working conditions. Job titles alone are not determinative of whether employees are similarly employed. Contractor may allow differentials in compensation for Contractor’s workers based in good faith on any of the following: a seniority system; a merit system; a system that measures earnings by quantity or quality of production; a bona fide job-related factor or factors; or a bona fide regional difference in compensation levels. A bona fide job-related factor or factors may include, but is not limited to, education, training, or experience that is: consistent with business necessity; not based on or derived from a gender-based differential; and accounts for the entire differential. A bona fide regional difference in compensation level must be consistent with business necessity; not based on or derived from a gender-based differential; and account for the entire differential. Notwithstanding any provision to the contrary, upon breach of warranty and Contractor’s failure to provide satisfactory evidence of compliance within thirty (30) days, Enterprise Services may suspend or terminate this Contract and any Purchaser hereunder similarly may suspend or terminate its use of the Contract and/or any agreement entered into pursuant to this Contract.

4.9. WASHINGTON SMALL BUSINESS. Contractor represents and warrants, as previously certified in Contractor’s Bidder’s Certification, that Contractor qualifies as a Washington Small Business as defined and set forth in Contractor’s Bidder’s Certification.

4.10. CERTIFIED VETERAN-OWNED BUSINESS. Contractor represents and warrants, as previously certified in Contractor’s Bidder’s Certification, that Contractor qualifies as a Certified Veteran-Owned Business as defined and set forth in Contractor’s Bidder’s Certification.

4.11. PUBLIC CONTRACTS AND PROCUREMENT FRAUD. Contractor represents and warrants that, within the three (3) year period prior to this Contract, neither Contractor nor its principals or affiliates: (a) have been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offence in connection with obtaining, attempting to obtain, or performing a public (federal, state, local, or tribal) contract or purchase order under a public contract; (b) have been in violation of federal or state antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements or receiving stolen property; (c) have been indicted for or otherwise criminally or civilly charged by a government entity (federal, state, local, or tribal) with commission of any of the offense enumerated in subsection (b) of this provision; or (d) had one or more public contracts (federal, state, local, or tribal) terminated for cause or default.

4.12. PROCUREMENT ETHICS & PROHIBITION ON GIFTS. Contractor represents and warrants that Contractor complies fully with all applicable procurement ethics restrictions including, but not limited to, restrictions against Contractor providing gifts or anything of economic value, directly or indirectly, to Enterprise Services and Purchasers’ employees.

4.13. WASHINGTON’S ELECTRONIC BUSINESS SOLUTION (WEBS). Contractor represents and warrants that Contractor is registered in Washington’s Electronic Business Solution (WEBS), Washington’s contract registration system and that, all of Contractor’s information therein is current and accurate and that throughout the term of this Contract, Contractor shall maintain an accurate profile in WEBS.

4.14. WASHINGTON’S STATEWIDE PAYEE DESK. Contractor represents and warrants that Contractor is registered with Washington’s Statewide Payee Desk, which registration is a condition to payment.

4.15. CONTRACT PROMOTION; ADVERTISING AND ENDORSEMENT. Contractor represents and warrants that Contractor shall use commercially reasonable efforts both to promote and market the use of this Contract with eligible Purchasers and to ensure that those entities that utilize this Contract are eligible Purchasers. Contractor understands and acknowledges that neither Enterprise Services nor Purchasers are endorsing Contractor’s Goods and/or Services or suggesting that such Goods and/or Services are the best or only solution to their needs. Accordingly, Contractor further represents and warrants that Contractor shall make no reference to Enterprise Services, any Purchaser, or the State of Washington in any promotional material without the prior written consent of Enterprise Services.

4.16. CONTINGENT FEES. Contractor represents and warrants that no person or selling agent has been employed or retained to solicit or secure this Contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established agents as defined in the Federal Acquisition Regulations.

4.17. FINANCIALLY SOLVENT. Contractor represents and warrants that Contractor has not commenced bankruptcy proceedings and that there are no judgment, liens, or encumbrances of any kind affecting title to any Goods and/or Services that are the subject of this Contract.

4.18. OPERATIONAL CAPABILITY. Contractor represents and warrants, as previously certified in Contractor’s Bidder’s Certification, that Contractor has the operational and financial capability to perform the Contract.

4.19. CONTRACT TRANSITION. Contractor represents and warrants that, in the event this Contract or a similar contract, is transitioned to another contractor (e.g., Contract expiration or termination), Contractor shall use commercially reasonable efforts to assist Enterprise Services (including the Purchasers hereunder) for a period of sixty (60) calendar days to effectuate a smooth transition to another contractor to minimize disruption of service and/or costs to the State of Washington and such Purchasers; Provided, however, that, if costs are incurred, Contractor shall be compensated for such costs consistent with the terms and conditions pertaining to this Contract for the sixty (60) day period immediately before such transition.

4.20. COOPERATIVE PURCHASING AGREEMENT. Contractor represents and warrants, as previously certified in Contractor’s Bidder’s Certification, that Contractor is able to and shall service all Eligible Purchasers, as specified herein.

4.21. VEHICLE TITLE & REGISTRATION. Contractor represents and warrants that upon payment in full, Contractor shall convey to Purchaser all necessary paperwork, including a “manufacturer’s statement of origin” (MSO) and applicable state title application to register the Transit Bus with the Purchaser’s applicable state licensing authority at the time of delivery.

5. QUALITY; WARRANTY; REMEDIES.

5.1. GOODS WARRANTY. Contractor warrants that, for a period of twelve (12) months from the date when the Goods are put into use, or eighteen (18) months after delivery of the Goods, whichever is later (“Goods Warranty Period”), the Goods: (a) are free from defects in design, material, and workmanship; (b) are fit and safe for the intended purposes and appropriate for the specified application(s) (if any); (c) are consistent with recognized industry quality standards; (d) comply with the requirements, specifications, drawings, standards, and descriptions included in this Contract; and (e) are produced and delivered in full compliance with applicable law (“Goods Warranty”). Contractor further warrants that it has good and marketable title to the Goods and shall keep Purchaser’s property free of liens. If Purchaser receives notice of a lien caused by Contractor, Purchaser may withhold any payment otherwise due Contractor until Contractor submits proof, in a form satisfactory to Purchaser, that all lienable claims have been fully paid or waived.

5.2. GOODS REMEDY. If Goods do not comply with the Goods Warranty or any defects develop during the Goods Warranty Period under normal use, at Purchaser’s election, Contractor promptly shall remedy the defect by removing, repairing, correcting, or replacing, and/or reinstalling any defective Goods. Contractor’s Goods Warranty support shall include, at Contractor’s sole expense, all technical support, parts, materials and equipment, and labor, including freight and “in/out” costs required to address the defect. If, in Purchaser’s judgment, repair or replacement is inadequate, or fails of its essential purpose, Contractor shall refund the full amount of any payments that have been made. The rights and remedies of the parties under this warranty are in addition to any other rights and remedies of the parties provided by law or equity, including, without limitation, actual damages, and, as applicable and awarded under the law, to a prevailing party, reasonable attorneys’ fees and costs.

5.3. SERVICES WARRANTY. Contractor warrants that: (a) Services shall be performed in a timely, efficient, and professional manner; (b) all Contractor personnel assigned to perform Services shall have the necessary skill and training; and (c) Services shall be performed in a manner consistent with the standard of care in the industry (“Services Warranty”). The Services Warranty shall survive for a period of twelve (12) months after the date when Services are completed (“Services Warranty Period”).

5.4. SERVICES REMEDY. If Services do not comply with the Services Warranty or are in any manner found to be nonconforming during the Services Warranty Period, Contractor promptly shall remedy the non-conformance, or at Purchaser’s election, Contractor shall re-perform or correct the nonconforming Services at no additional cost to Purchaser or refund the amounts paid for the Services.

5.5. IT WARRANTY. Contractor warrants, that all hardware, software, and firmware associated with Goods or Services (“IT Goods” and “IT Services”, respectively) shall not: (a) contain any viruses, malicious code, Trojan horse, worm, time bomb, self-help code, back door, or other software code or routine designed to: (i) damage, destroy, or alter any software or hardware; (ii) reveal, damage, destroy, or alter any data; (iii) disable any computer program automatically; or (iv) permit unauthorized access to any software or hardware; (b) contain any third party software (including software that may be considered free software or open source software) that (i) may require any software to be published, accessed, or otherwise made available without the consent of Purchaser, or (ii) may require distribution, copying, or modification of any software free of charge; and (c) infringe on any patent, copyright, trademark, or other proprietary or intellectual property right of any third party or misappropriate any trade secret of any third party (“IT Warranty”). The IT Warranty shall expire twelve (12) months after the date IT Goods are delivered or IT Services are complete, as applicable.

5.6. IT REMEDY. If IT Goods or IT Services do not comply with the IT Warranty, or if any defect or non-conformance develops during the IT Warranty Period, Contractor, at Purchaser’s election, promptly shall: (a) remedy the defect by removing, repairing, correcting or replacing, and/or reinstalling any defective IT Goods; (b) re-perform or correct the non-conforming IT Services at no additional cost to Purchaser; or (c) refund the amounts paid for IT Services and IT Goods.

5.7. FAILURE TO REMEDY. If Contractor does not remedy a defect or nonconformity within ten (10) calendar days after receipt of written notice from Purchaser, or if an emergency exists rendering it impossible or impractical for Purchaser to have Contractor provide a remedy, Purchaser may, without prejudice to any other rights or remedies available to it, make or cause to be made required modifications, adjustments, or repairs, or may replace Goods, Services, IT Goods, or IT Services, in which case Contractor shall reimburse Purchaser for its actual costs or, at Purchaser’s option, Purchaser shall offset the costs incurred from amounts owing to Contractor.

5.8. TECHNICAL SUPPORT. During any applicable warranty period, Contractor shall provide all warranty service and telephone support, including after-hour technical support, at its own cost. Contractor shall maintain a technical support hotline to address breakdowns and safety incidents.

6. SAFETY; SECURITY; CONTRACTOR REQUIREMENTS WHILE ON PURCHASER’S PREMISES. Contractor’s failure to comply with any of the requirements in this Section shall be cause for termination.

6.1. REGULATORY REQUIREMENTS/SAFETY. Goods and/or Services supplied by Contractor shall meet all applicable health, safety, and other federal, state, local, and/or tribal regulatory requirements applicable to the Goods and/or Services.

6.2. MATERIAL SAFETY DATA SHEETS. As applicable, Contractor shall provide Purchaser with all appropriate current Material Safety Data Sheets (“MSDS”) at the time of delivery of each shipment of Goods which requires such compliance and/or and for materials used by Contractor while performing Services pursuant to this Contract.

6.3. CLEAN-UP. If Contractor, its agents, employees, or subcontractors perform on-site Services, Contractor, at its cost, shall remove all excess materials, equipment, packaging, and garbage within the scope of its performance of Services and leave that portion of the premises in which the work was performed in a clean condition. Should Contractor fail to clean up a Site after completion of work, Purchaser shall have the right to remove the materials and set off the cost of clean up against amounts owed to Contractor.

6.4. ACCIDENT AND INJURY REPORTING. If Contractor, its agents, employees, or subcontractors are present at Purchaser’s premises, Contractor promptly shall report in writing all injuries, accidents, property damage, near-miss incidents, or any claims regarding damages or injury involving Contractor, its agents, employees, or subcontractors occurring at such premises. Contractor agrees to cooperate and assist Purchaser in any investigation of incidents.

6.5. ON-SITE REQUIREMENTS. As applicable, while on Purchaser’s premises or while interacting with Purchaser and/or Enterprise Services’ personnel, Contractor, its agents, employees, or subcontractors shall comply, in all respects, with Purchaser’s physical, fire, access, safety, health, and security requirements and not interfere with Purchaser’s operations. Contractor represents and warrants that Contractor, its agents, employees, or subcontractors who access Purchaser’s premises shall be adequately trained and at all times comply with Purchaser’s requirements.

6.6. IT SECURITY POLICIES. Contractor, its agents, employees, or subcontractors shall comply with all Washington State IT security policies and standards which shall be made available to Contractor upon request.

7. SUBCONTRACTORS.

7.1. CONTRACTOR RESPONSIBILITY. Notwithstanding any provision to the contrary, in the event Contractor elects to utilize subcontractors to perform this Contract, Contractor shall: (a) incorporate Contractor’s responsibilities under this Contract into its subcontracts; (b) be fully responsible for the performance of any such subcontractors (regardless of tier) and ensure that subcontractors comply with each and every Contractor obligation set forth in this Contract; (c) be the sole point of contact for Enterprise Services and any Purchasers regarding all contractual matters; (d) ensure that such subcontractors are registered in WEBS; and (e) defend, indemnify, and hold Enterprise Services and Purchasers harmless in case of negligence, other tortious fault, or intentional misconduct by any such subcontractors (regardless of tier). Prior to utilizing any subcontractor to perform this Contract, Contractor shall provide written notice to Enterprise Services’ contract administrator. Such notice shall confirm that the subcontractor is registered in WEBS and provide the necessary information for Enterprise Services’ contract administrator to include such subcontractor(s) in Washington’s Purchasing Contract Management System (PCMS).

7.2. REPORTING. If Contractor is required to report to Purchaser and/or Enterprise Services, such report(s) shall include subcontractor data, by subcontractor, for any data that Contractor is required to report as well as a consolidated ‘rollup’ report combining Contractor and subcontractor data.

7.3. SUBCONTRACTOR REPRESENTATIONS AND CERTIFICATIONS. Any Contractor representations or certifications set forth in this Contract shall apply to subcontractors (at any tier) and Contractor shall not utilize any subcontractors (at any tier) who cannot provide such representations or certifications, excepting the certification to be registered with Washington’s Statewide Payee Desk, unless Purchaser shall pay such subcontractor directly.

8. USING THE CONTRACT – PURCHASES.

8.1. ORDERING REQUIREMENTS. Eligible Purchasers shall order Goods and/or Services from this Contract, consistent with the terms hereof and by using any ordering mechanism agreeable both to Contractor and Purchaser but including, at a minimum, a purchase order. When practicable, Contractor and Purchaser also shall use telephone orders, email orders, web-based orders, and similar procurement methods (collectively “Purchaser Order”). All Purchase Orders must reference the Contract number. The terms of this Contract shall apply to any Purchase Order and, in the event of any conflict, the terms of this Contract shall prevail. Notwithstanding any provision to the contrary, in no event shall any ‘click-agreement,’ software or web-based application terms and conditions, or any other agreement modify the terms and conditions of this Contract.

8.2. FEDERAL FUNDS. To the extent that any Purchaser uses federal funds to purchase Goods and/or Services pursuant to this Contract, such Purchaser shall specify, with its Purchase Order, any applicable requirement or certification that must be satisfied by Contractor at the time the Purchase Order is placed or upon delivery of such Goods and/or Services to Purchaser.

Purchasers who receive federal funding from a pass-through entity must comply with all federal terms and conditions applicable to the federal funding. The acceptance of the grant funds shall not be construed as acceptance of any terms and conditions that are vague; contrary to the Constitution, statute, regulation, or caselaw; or that are otherwise arbitrary or capricious in form or implementation. Compliance shall be consistent with any court order applicable to the terms and conditions that are applicable to this grant. Purchasers expressly reserve all rights to challenge in any appropriate venue any term, condition, or other requirement unlawfully imposed or unlawfully exercised in implementing the grant.

8.3. APPROVAL OF PURCHASES. Enterprise Services and, if the Purchaser is using FTA funds, the Purchaser’s respective authorization authority for use of those FTA funds shall approve the Purchaser’s initial Purchase Order. Enterprise Services shall review the Purchase Order and approve that the purchase is within the Scope of the Cooperative Purchasing Agreement. The Purchaser’s respective authorization authority for use of those FTA funds will approve the purchase according to their own policies and procedures. Purchaser and Contractor shall provide timely information as requested by Enterprise Services for the approval process.

8.4. CONTRACTOR COOPERATIVE USE APPROVAL. Pursuant to RCW 39.26.060, the intent of this Contract is to allow for cooperative procurement to the maximum extent possible. Accordingly, any authorized entity that has executed a Washington State Transit Bus Cooperative Purchasing Agreement with Enterprise Services may place orders under this contract. Participation in the cooperative is voluntary. If agreed to by Contractor, this Contract may be used by any Purchaser in the cooperative to procure the Transit Buses. Contractor has the right to refuse initial orders by cooperative Purchasers on a capacity basis if the Contractor cannot fulfill the complete order based on delivery deadlines. Orders under this Contract will be fulfilled on a first come, first-served basis of the initial order date. If the Contractor rejects for capacity, Enterprise Services may request additional information from the Contract regarding Contractor’s capacity to fulfill orders.

8.5. FTA PRE-AWARD AND POST-DELIVERY CERTIFICATIONS. Contractor shall take all reasonable steps to assist Purchasers in completing all required pre-award and post-delivery certifications required by federal or state law or policy for purchases under this Contract. Contractor shall provide all requested information to complete the certifications in a reasonable time to ensure certifications are completed in a timely manner.

8.6. DELIVERY REQUIREMENTS. Contractor must ensure that the Goods and/or Services are delivered or provided as required by this Contract, the Purchase Order used by Purchaser, and as otherwise mutually agreed in writing between Purchaser and Contractor. The following apply to all deliveries:

(a) Contractor shall make all deliveries to the applicable delivery location specified in the Purchase Order. Such deliveries shall occur during Purchaser’s normal work hours and within the time period mutually agreed in writing between Purchaser and Contractor.

(b) Contractor shall deliver all buses with a full tank of fuel and clean inside and out. For any bus not meeting this requirement, the Contractor will be assessed a one-time fee of $600. When Goods and/or Services are delivered, certificates or releases signed by Purchaser simply acknowledge receipt of the Goods and/or Services and do not constitute acceptance by the Purchaser of the condition of the Goods and/or Services, or their conformance with the terms of the Contract or Purchaser’s Purchase Order. Acceptance by Purchaser occurs subsequent to final inspection when Purchaser provides Contractor with a written Notice of Acceptance.

(c) Contractor shall ship all Goods and/or Services purchased pursuant to this Contract, freight charges prepaid by Contractor, FOB Purchaser’s specified destination with all transportation and handling charges included. Contractor shall bear all risk of loss, damage, or destruction of the Goods and/or Services ordered hereunder that occurs prior to delivery, except loss or damage attributable to Purchaser’s fault or negligence.

(d) All packing lists, packages, instruction manuals, correspondence, shipping notices, shipping containers, and other written materials associated with this Contract shall be identified by the Contract number set forth on the cover of this Contract and the applicable Purchaser’s Purchase Order number. Packing lists shall be enclosed with each shipment and clearly identify all contents and any backorders.

8.7. PROTOTYPE BUSES. If requested by Purchaser, Contractor shall produce one prototype bus for each type of bus with respect to the Purchase Order for inspection and testing at the Purchaser’s facilities. The prototype bus will demonstrate that the bus fully meets all requirements of the Purchase Order. Contractor shall produce and deliver the prototype bus to Purchaser for inspection and testing a minimum of one hundred twenty (120) days prior to initiation of any production activities for the remaining buses unless otherwise authorized in writing by Purchaser. The cost of transporting the prototype bus to and from the Purchaser’s facilities shall be at the expense of Contractor. Contractor shall schedule the prototype review with the Purchaser when a vehicle has been completed with all equipment and furnishings installed, but early enough so that design changes resulting from the review will not delay production or cause scrapping of production material.

In the event of nonconformity, Purchaser shall, to the extent practicable, notify Contractor of said nonconformity. No later than seven (7) days after the end of the fourteen (14) day test, Purchaser shall issue a written report to the Contractor that advises the Contractor of any noncompliance issues and/or any proposed modifications or changes required on the remaining vehicles. Any failure by Purchaser to detect any defects or omissions in this testing period will in no way relieve Contractor from fully complying with the specifications of the Contract and Purchaser Order. All prototype buses shall be brought up to the final production bus configuration in all respects at no additional cost to Purchaser, except as may be agreed by change orders.

8.8. NOTIFICATION OF DELAY. Contractor shall provide prompt notice to Purchaser and Enterprise Services for any delay in the manufacturing process that will affect the expected delivery date. Contractor will provide notice of the delay within fourteen (14) days of discovery of the potential delay. This notice of delay must include a reasonable expectation of when the delay will be resolved, the reason for the delay, whether the delay will cause the delivery to exceed the delivery date, and any other applicable information regarding the delay.

· Purchaser shall provide Contractor with notice of acceptance of the reasonable delay or notice that the delay is determined to be non-excusable within seven (7) days of receipt of the notice of delay.

· If there is a dispute between Contractor and Purchaser as to whether the delay is reasonable, Contractor may appeal Purchaser’s decision to Enterprise Services within seven (7) days of receipt of the notice…