174-21 Attachment A Sample Contract Collars for Pronghorn.pdf

ODFW Contract #: 635-174-21 OREGONBUYS Tracking #: 63500-00000262

ATTACHMENT A SAMPLE CONTRACT

STATE OF OREGON CONTRACT FOR THE PURCHASE OF GOODS &

SERVICES (“Contract”)

GPS Collars & Satellite Tracking for Mule Deer

This Contract is between the State of Oregon, acting by and through its Oregon Department of Fish and Wildlife, hereafter called “ODFW” or “Agency,”

And Contractor’s Name and Point of Contact

Address City, State Zip

Telephone Number: (XXX) XXX-XXXX Email Address: YOURNAMEHERE.com

Hereafter called “Contractor.”

Agency's Contract Administrator for this Contract is:

Donald Whittaker Oregon Department of Fish and Wildlife

ODFW Headquarters 4034 Fairview Industrial Dr. SE

Salem OR, 9797302 Telephone number: (503) 947-6325

Email address: don.whittaker@odfw.oregon.gov

This Contract is effective on the date it has been signed by all parties and all required State of Oregon approvals have been obtained. Unless extended or terminated earlier in accordance with its terms, this Contract terminates when Agency accepts Contractor's completed performance or on November 1st, 2024, whichever is sooner.

Contract termination will not extinguish or prejudice Agency’s right to enforce this Contract with respect to any default by Contractor that has not been cured.

TABLE OF CONTENTS

SECTION 1 - DEFINITIONS

SECTION 2 - STANDARD CONTRACT TERMS AND CONDITIONS

SECTION 3 - SPECIAL CONTRACT TERMS AND CONDITIONS

SECTION 4 - INSURANCE REQUIREMENTS

SECTION 5 - SPECIFICATIONS

SECTION 6 - PRICING

SECTION 7 - CERTIFICATION OF COMPLIANCE WITH NONDISCRIMINATION LAWS

SECTION 8 – CERTIFICATION OF COMPLIANCE WITH TAX LAWS

SECTION 9 – MWESB OUTREACH PLAN

Notice to Proposers: This Attachment B Sample Contract Form is provided for informational purposes only.

Please do not return any portion of this sample contract, including attached Exhibits, with your Proposals.

mailto:ckochanny@vectronic-aerospace.com mailto:don.whittaker@odfw.oregon.gov

SECTION 10 - CONTRACTOR'S SIGNATURE PAGE -SECTION

SECTION 11 - AWARD AND STATE SIGNATURE PAGE

ADDENDA

EXHIBITS

Exhibit 1 State of Oregon rider

CONTRACT

This Contract is between the State of Oregon, acting by and through its Department of Fish and Wildlife (“ODFW” or “Agency”) and the undersigned ("Contractor").

RECITALS

A. ODFW issued ITB #XXXXXXX seeking offers from qualified and responsible Offerors to provide Goods and Services, described in Sections 5 and 6 of this Contract; and

B. Contractor submitted an Offer in response to the ITB offering to provide the Goods and Services as set forth in Section 5 at the price set forth in Section 6 pursuant to the terms and conditions set forth herein; and

C. ODFW, by its execution of Section 10 hereof, has accepted Contractor's offer to the extent set forth in section 10.

AGREEMENT

In consideration of the foregoing recitals, contract price of $XX,XXX.xx, and subject to the covenants, terms and conditions set forth below Contractor agrees to sell and ODFW agrees to purchase the Goods and Services described herein.

SECTION 1 - DEFINITIONS:

1.2 "Contract" means the entire agreement between ODFW and Contractor consisting of (i) this document and all exhibits, (ii) and (iii) any amendments. It also includes the documentation, including but not limited to delivery orders and notices to proceed that are submitted to Contractor by ODFW initiating the purchase and delivery of Goods and Services under this Contract.

1.3 "Goods" means the individual items and related Services described in Sections 5 and 6.

1.4 "Services" means the services, described in Sections 5 and 6 to be performed by Contractor under the Contract that are incidental to the purchase of Goods.

1.5 "Specifications" means the specific attributes of the Goods to be purchased or Services to be performed, as described in Section 5.

1.6 “ODFW” means the State of Oregon acting by and through its Department of Fish and Wildlife.

1.7 Standard" means everything related to the Goods that the manufacturer or Contractor offers to the general public during the applicable model year as standard.

1.8 "State" means the State of Oregon and its boards, commissions, departments, institutions, branches, and agencies.

1.9 "UCC" means the Uniform Commercial Code as set forth in ORS chapters 71 and 72.

SECTION 2 - STANDARD CONTRACT TERMS AND CONDITIONS

2.1 ORDER OF PRECEDENCE: The printed terms and conditions set out in this Section 2 are the Standard Terms and Conditions for State of Oregon contracts for Goods. ODFW may also provide Special Contract Terms and Conditions in Section 3, which apply only to this Contract. Whenever possible, all terms and conditions are to be harmonized. In the event of a conflict between the Standard and Special Contract Terms and Conditions, the Special Contract Terms and Conditions take precedence, except in the event the Standard term in question is required by law. In the event of any other conflict, the Contract will be interpreted in the following order of precedence: (i) amendments,

(ii) addenda (iii) the Special Contract Terms and Conditions, (iv) Specifications, and (v) these Standard Contract Terms and Conditions.

2.2 PAYMENT: Contractor shall look solely to Agency for payment of all amounts that may be due under this Contract. Agency is solely responsible for payment under this Contract. Payment is due by Agency within forty- five (45) days after the date of the invoice.

2.3 OVERDUE CHARGES: All payments made by agency are subject to ORS 293.462.

2.4 PAYMENT ADDRESS: ODFW will issue Payment to Contractor at the address specified in Contractor’s invoice(s).

2.5 INVOICES: Contractor shall invoice Agency upon acceptance by Agency of the entire order.

Contractor shall include in its invoice the ITB#, Contract #, if any, Goods ordered and volume or quantity of Goods delivered, the price per item or quantity of Goods, the total amount due, and address to which payment is to be sent. See also Section 6.2.

2.6 MOST FAVORABLE PRICES AND TERMS: Contractor represents and warrants that all prices, terms and benefits, offered by Contractor under this Contract are equal to or better than the equivalent prices, terms and benefits being offered by Contractor to any other state or local government unit or commercial customer.

2.6.1 Should Contractor, during the term of the Contract, enter into any contract, agreement or arrangement that provides lower prices, more favorable terms or greater benefits to any other such government unit or commercial customer, this Contract will thereupon be deemed amended to provide the same price or prices, terms and benefits to ODFW and to Agency. This provision applies to comparable goods and services, and to purchase volumes by ODFW or by Agency that are not less than the purchase volumes of the government unit or commercial customer that has received the lower prices, greater benefits or more favorable terms.

2.6.2 Section 2.6.1 does not apply to donations of Goods to charitable, nonprofit or government entities, if the donations are recognized as such and are deductible under the federal Internal Revenue Code. Such donations will not be considered contracts, agreements, sales or arrangements with other government units or commercial customers subject to the application of section 2.6.1.

2.7 INSPECTIONS/ACCEPTANCE: The Agency has ten (10) calendar days from date of delivery of the entire order within which to inspect and accept or reject the Goods. If the Goods are rejected, ODFW will provide Contractor with written notification of rejection. Notice of rejection will include itemization of apparent defects, including but not limited to (i) discrepancies between the Goods and the applicable Specifications or warranties (including variance from demonstrations or sample characteristics where demonstrations or samples have been provided), or (ii) otherwise nonconforming Goods (including late delivery). Notice of rejection will also indicate whether cure will be allowed.

2.7.1 CURE: The Agency may permit Contractor to deliver substitute Goods. The Contractor shall deliver substitute conforming Goods within ten (10) calendar days of receipt of notice of rejection and opportunity to cure. Failure to complete cure within the ten (10) calendar-day period will constitute material default.

2.7.2 REMOVAL/REIMBURSEMENT: If the Goods are rejected or acceptance is revoked, the Contractor shall refund any Contract payments that have been made with regard to the Goods and shall (at Contractor's sole cost and expense) remove the Goods within seven (7) calendar days of receiving notice of rejection or revocation of acceptance.

Nothing contained in this Section 2.7 precludes ODFW from other remedies to which it may be entitled upon rejection or revocation of acceptance.

2.8 REPRESENTATIONS; WARRANTIES:

2.8.1 AUTHORITY; BINDING OBLIGATION. Contractor represents and warrants that Contractor has the power and authority to enter into and perform the Contract and that the Contract, when executed and delivered, is a valid and binding obligation of Contractor enforceable in accordance with its terms.

2.8.2 WARRANTY ON MATERIALS, DESIGN, MANUFACTURE. Contractor represents and warrants that all Goods will be new, unused, current production models, where applicable, and free from defects in materials, design and manufacture for the duration of the warranty period. Contractor further represents and warrants that all Goods are in compliance with and meet or exceed all Specifications set forth in section 5, Specifications.

2.8.3 WARRANTY ON SERVICE STANDARDS. Contractor represents and warrants that all Services, if any, will be performed in a good and workmanlike manner, and in the event that such Services are covered by professional or industry standards then the Services will be performed according to the highest applicable professional and industry standards.

2.8.4 WARRANTY OF TITLE. Contractor represents and warrants that all Goods are free and clear of any liens or encumbrances, and that Contractor has full legal title to the Goods, and that no other person has any right, title or interest in the Goods which is superior to or infringes upon the rights granted to ODFW or Agency hereunder.

2.8.5 WARRANTY ON SAFETY AND HEALTH REQUIREMENTS: Contractor represents and warrants that Goods provided under this Contract comply with all applicable federal health and safety standards, including but not limited to Occupational Safety and Health Administration (OSHA), and all Oregon safety and health requirements, including but not limited to those of the State Workers' Compensation Division.

2.8.6 WARRANTIES CUMULATIVE. The warranties set forth in this section are in addition to, and not in lieu of, any other warranties provided in this Contract. All warranties provided in the Contract are cumulative and will be interpreted expansively so as to afford ODFW and Agency the broadest warranty protection available.

2.8.7 MANUFACTURER WARRANTIES: Contractor shall have all manufacturer warranties covering the Goods and component parts, if any, transferred to the Agency at time of delivery at no charge.

2.8.9 WARRANTY ON UNDISCLOSED LIQUIDATED AND DELINGUENT DEBT: Contractor shall have no undisclosed liquidated and delinquent debt owed to the State or any department or agency of the State.

2.9 COMPLIANCE WITH APPLICABLE LAWS AND STANDARDS:

2.9.1 Contractor shall comply with all federal, state and local laws, regulations, executive orders and ordinances applicable to the Contract. Without limiting the generality of the foregoing, Contractor expressly agrees to comply with the following laws, regulations and executive orders to the extent they are applicable to the Contract: (i) Titles VI and VII of Civil Rights Act of 1964, as amended; (ii) Sections 503 and 504 of the Rehabilitation Act of 1973, as amended; (iii) the Americans with Disabilities Act of 1990, as amended; (iv) Executive Order 11246, as amended; (vi) the Age Discrimination in Employment Act of 1967, as amended, and the Age Discrimination Act of 1975, as amended; (vii) the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended; (viii) ORS Chapter 659, as amended; (ix) all regulations and administrative rules established pursuant to the foregoing laws; and (x) all other applicable requirements of federal and state civil rights and rehabilitation statutes, rules and regulations. These laws, regulations and executive orders are incorporated by reference herein to the extent that they are applicable to this Contract and required by law to be so incorporated. ODFW’s performance under the Contract is conditioned upon Contractor's compliance with the obligations of contractors under ORS 279B.220, 279B.230 and 279B.235, which are incorporated by reference herein. Contractor acknowledges the Oregon False Claims Act, ORS 180.750 to 180.785, applies to any action by Contractor pertaining to this Contract that constitutes a "claim" (as defined by ORS 180.750(1)).

2.9.2 RECYCLED PRODUCTS: Contractor shall use recycled and recyclable products to the maximum extent economically feasible in the performance of the Contract. These products must include recycled paper (as defined in ORS 279A.010 (1)(ee), recycled PETE products (as defined in ORS 79A.010(1)(ff), other recycled products(as “recycled product” is defined in ORS 279A.010(1)(gg), and other recycled plastic resin products.

2.9.3 In the event of a conflict between the Specifications and applicable federal or State laws, the federal or State laws prevail. Provided, however, in the event any conflict is based solely upon minimum standards, such as quality or safety, the higher or more stringent standard applies. Contractor shall be responsible for making any modifications required to achieve compliance with the required laws and standards. Contractor shall notify ODFW and Agency of any such required modifications upon receipt of knowledge or notification of such.

2.9.4 In the event any Good or component part is recalled by a regulatory body or the manufacturer, or discovered by Contractor not to be in compliance with the applicable standards, Contractor shall immediately notify ODFW and the Agency of the recall or non-compliance, and provide copies of the notice or other documentation. ODFW may elect to

(a) cancel any portion of the Contract, (b) reject the Goods, (c) revoke its acceptance of the Goods, or (d) terminate the Contract in whole or in part, based upon such recall or non-compliance. In the event of rejection or revocation of acceptance under this subsection, Contractor shall promptly remove the Goods at its sole cost and expense, and reimburse Agency for payments made.

2.10 FOREIGN CONTRACTOR: If the amount of the Contract exceeds ten thousand dollars ($10,000), and if Contractor is not domiciled in or registered to do business in the State, Contractor shall promptly provide to the Oregon Department of Revenue all information required by that Department relative to the Contract. Agency is entitled to withhold final payment under the Contract until Contractor has met this requirement.

2.11 MATERIAL SAFETY DATA SHEET: Contractor shall provide the Agency at time of delivery of the Goods with a Material Safety Data Sheet as defined by the Occupational Safety and Health Administration (OSHA) for any Goods provided under the Contract which may release or otherwise result in exposure to a hazardous chemical under normal conditions of use. In addition, Contractor shall properly label, tag or mark such Goods.

2.12 TIME IS OF THE ESSENCE: Contractor agrees that time is of the essence for Contractor's performance obligations under the Contract.

2.13 FORCE MAJEURE: Neither ODFW nor Contractor will be held responsible for delay or default caused by fire, riot, acts of God, terrorism, war, or any other cause which is beyond the party's reasonable control. Contractor shall, however, make all reasonable efforts to remove or eliminate such a cause of delay or default and shall, upon the cessation of the cause, diligently pursue performance of its obligations under the Contract. ODFW may terminate the Contract upon written notice after reasonably determining that such delay or default will likely prevent successful performance of the Contract.

2.14 INSURANCE: Contractor shall obtain prior to performing under the Contract, and maintain during the term of the Contract (including all warranty periods), the insurance required under Section

4. With regard to workers' compensation insurance, all employers, including Contractor, that employ subject workers who work under the Contract in the State of Oregon must comply with ORS 656.017 and provide the required workers' compensation coverage, unless such employers are exempt under ORS 656.126(2). Contractor shall require and ensure that each of its subcontractors, if any, complies with these requirements.

2.15 FUNDS AVAILABLE AND AUTHORIZED; PAYMENTS: Agency represents that it has sufficient funds available and authorized within its biennial appropriation or limitation to finance the cost of purchases under the Contract prior to the end of the current biennium. Contractor understands and agrees that Agency's payment of amounts under the Contract attributable to purchases made after the last day of the current biennium is contingent on Agency's receiving from the Oregon Legislative Assembly appropriations, limitations, or other expenditure authority sufficient to allow Agency, in the exercise of its reasonable administrative discretion, to continue to make payments under the Contract.

2.16 INDEPENDENT CONTRACTOR STATUS; RESPONSIBILITY FOR TAXES AND WITHHOLDING:

2.16.1 Contractor will perform all Services as an independent Contractor. Although ODFW reserves the right (i) to determine (and modify) the delivery schedule for the Goods to be delivered and Services to be performed and (ii) to evaluate the quality of the completed performance, ODFW cannot and will not control the means or manner of Contractor's performance. Contractor is responsible for determining the appropriate means and manner of performing any Services called for under this Contract.

2.16.2 If Contractor is currently performing work for the State of Oregon or the federal government, Contractor by signature to this Contract declares and certifies that: Contractor's performance of this Contract creates no potential or actual conflict of interest as defined by ORS 244 and no rules or regulations of Contractor's employing agency (state or federal) would prohibit Contractor's performance of this Contract. Contractor is not an "officer", "employee", or "agent" as those terms are used in ORS 30.265 of the State or Agency

2.16.3 Contractor is responsible for all federal and state taxes applicable to compensation or payments paid to Contractor under this Contract and, unless Contractor is subject to backup withholding, Agency will not withhold from such compensation or payments any amount(s) to cover Contractor's federal or state tax obligations. Contractor is not eligible for any social security, unemployment insurance or workers' compensation benefits from compensation or payments paid to Contractor under this Contract.

2.17 INDEMNIFICATION:

2.17.1 CONTRACTOR SHALL DEFEND, SAVE, HOLD HARMLESS, AND INDEMNIFY THE STATE

AND ITS OFFICERS, EMPLOYEES AND AGENTS FROM AND AGAINST ALL CLAIMS, SUITS,

ACTIONS, PROCEEDINGS, LOSSES, DAMAGES, LIABILITIES, AWARDS AND COSTS OF EVERY

KIND AND DESCRIPTION (INCLUDING REASONABLE ATTORNEY'S FEES AND EXPENSES AT

TRIAL, ON APPEAL AND IN CONNECTION WITH ANY PETITION FOR REVIEW) (COLLECTIVELY,

"CLAIM") WHICH MAY BE BROUGHT OR MADE AGAINST ANY AGENCY, THE STATE, OR THEIR

AGENTS, OFFICIALS, EMPLOYEES AND ARISING OUT OF OR RELATED TO (I) ANY PERSONAL

INJURY, DEATH OR PROPERTY DAMAGE CAUSED BY ANY ALLEGED ACT, OMISSION, ERROR,

FAULT, MISTAKE OR NEGLIGENCE OF CONTRACTOR, ITS EMPLOYEES, AGENTS, RELATED TO

THIS CONTRACT, (II) ANY ACT OR OMISSION BY CONTRACTOR THAT CONSTITUTES A

MATERIAL BREACH OF THIS CONTRACT, INCLUDING WITHOUT LIMITATION ANY BREACH OF

WARRANTY, OR (III) THE INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET OR

OTHER PROPRIETARY RIGHT OF ANY THIRD PARTY BY DELIVERY OR USE OF THE GOODS.

ODFW WILL PROMPTLY NOTIFY CONTRACTOR IN WRITING OF ANY CLAIM OF WHICH ODFW

BECOMES AWARE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CONTRACTOR

WILL HAVE NO OBLIGATION TO INDEMNIFY AGENCY OR THE STATE OF OREGON FROM AND

AGAINST ANY CLAIMS, SUITS, ACTIONS, LOSSES, DAMAGES, LIABILITIES, COSTS AND

EXPENSES ATTRIBUTABLE SOLELY TO THE ACTS OR OMISSIONS OF AGENCY OR THE STATE OF

OREGON, AND THEIR OFFICERS, EMPLOYEES OR AGENTS.

2.17.2 Contractor’s obligation to indemnify Agency as set forth in Section 2.17.1 is conditioned on Agency providing to Contractor prompt notification of any claim or potential claim of which Agency becomes aware that may be the subject of those Sections. Contractor will have control of the defense and settlement of any claim that is subject to Section 2.17.1;

however, neither Contractor nor any attorney engaged by Contractor will defend the claim in the name of the State of Oregon or any agency of the State of Oregon, nor purport to act as legal representative of the State of Oregon or any of its agencies, without the approval of the Attorney General, nor will Contractor settle any claim on behalf of the State of Oregon without the approval of the Attorney General. The State of Oregon may, at its election and expense, assume its own defense and settlement in the event that the State of Oregon determines that Contractor is prohibited from defending the State of Oregon, is not adequately defending the State of Oregon’s interests, or that an important governmental principle is at issue and the State of Oregon desires to assume its own defense.

2.18 EVENTS OF DEFAULT:

2.18.1 Default by Contractor. Contractor will be in default under this Contract if:

2.18.1.1 Contractor institutes or has instituted against it insolvency, receivership or bankruptcy proceedings, makes an assignment for the benefit of creditors, or ceases doing business on a regular basis; or

2.18.1.2 Contractor no longer holds a license or certificate that is required for Contractor to perform its obligations under this Contract and Contractor has not obtained such license or certificate within ten (10) business days after delivery of

Agency’s notice of default or such longer period as ODFW may specify in such notice;

or

2.18.1.3 Contractor commits any material breach or default of any covenant, warranty, obligation or certification under this Contract, and such breach, default or failure is not cured within ten (10) business days after delivery of Agency’s notice of default or such longer period as ODFW may specify in such notice.

2.18.1.4 Contractor has liquidated and delinquent debt owed to the State of Oregon or any department or agency of the State.

2.18.2 Default by ODFW. ODFW will be in default under this Contract if:

2.18.2.1 Agency fails to pay Contractor any amount pursuant to the terms of this Contract, and Agency fails to cure such failure within ten (10) business days after delivery of Contractor's notice of default or such longer period as Contractor may specify in such notice; or

2.18.2.2 ODFW commits any material breach or default of any covenant, warranty, or obligation under this Contract, fails to perform its commitments hereunder within the time specified or any extension thereof, and ODFW fails to cure such failure within ten (10) business days after delivery of Contractor's notice of default or such longer period as Contractor may specify in such notice.

2.19 REMEDIES:

2.19.1 State's Remedies. In the event Contractor is in default under Section 2.18.1, in addition to the remedies afforded elsewhere herein, the State is entitled to recover for any and all damages suffered as the result of Contractor's breach of Contract, including but not limited to direct, indirect, incidental and consequential damages, as provided in ORS 72.7110 to

72.7170. ODFW may, at its option, pursue any or all of the remedies available to it under this Contract and at law or in equity, including, but not limited to:

2.19.1.1 Termination of this Contract under Section 2.21.2;

2.19.1.2 Withholding all monies due invoiced for Goods and Services that Contractor is obligated but has failed to deliver or perform within any scheduled completion dates or has performed inadequately or defectively;

2.19.1.3 Initiation of an action or proceeding for damages, specific performance, declaratory or injunctive relief; and

2.19.1.4 Exercise of its right of setoff, and withholding of monies otherwise due and owing in an amount equal to its setoff, without penalty.

2.19.1.5 Agency’s Remedies for Contractor’s Default. In the event Contractor is in default under Section 2.18.1.4, Agency may, at its option, pursue any or all of the remedies available to it under this Contract and at law or in equity, including, but not limited to:

Undertaking collection by administrative offset, or garnishment if applicable, of all monies due for Services, Goods, and Deliverables to recover liquidated and delinquent debt owed to the State of Oregon or any department or agency of the State.

2.19.1.6 These remedies are cumulative to the extent the remedies are not inconsistent, and ODFW may pursue any remedy or remedies singly, collectively, successively or in any order whatsoever. If it is determined for any reason that Contractor was not in default under Sections 2.18.1, the rights and obligations of the parties will be the same as if this Contract was terminated pursuant to Section 2.21.2.1.

2.19.2 Contractor's Remedies. In the event ODFW terminates the Contract for convenience under Section 2.21.2, or in the event ODFW is in default under Section 2.18.2 and whether or not Contractor elects to exercise its right to terminate the Contract under Section 2.19.2, Contractor's sole remedy will be (a) a claim against Agency for the unpaid price for any Goods delivered and accepted by Agency (b) with respect to deliverable-based Services, a claim against Agency for the sum designated for completing the deliverable multiplied by the percentage completed and accepted by Agency, less previous amounts paid and any claim(s) which State has against Contractor. If previous amounts paid to Contractor exceed the amount due to Contractor under this Section, Contractor shall pay any excess to Agency upon written demand.

2.19.3 Agency’s indemnification or other liability under this Contract is limited by the provisions of Article XI, Section 7 of the Oregon Constitution, and applicable Oregon statutes.

2.20 ATTORNEYS' FEES: With the exception of defense costs and expenses pursuant to 2.17, neither party will be entitled to recover attorney's fees, court and investigative costs, or any other fees or expenses associated with pursuing a remedy for damages arising out of or relating to the Contract.

2.21 TERMINATION:

2.21.1 MUTUAL CONSENT: The Contract may be terminated at any time by mutual written consent of the parties.

2.21.2 ODFW:

2.21.2.1 ODFW may, at its sole discretion, terminate the Contract, for convenience upon 30 days written notice.

2.21.2.2 ODFW is excused from performance and may in its sole discretion terminate the Contract immediately upon notice to Contractor, or at such later date as ODFW may establish in such notice, upon the occurrence of any of the following events: (i) the Agency fails to receive funding, or appropriations, limitations or other expenditure authority at levels sufficient to pay for the Goods to be purchased under the Contract;

or (ii) federal or state laws, regulations, or guidelines are modified or interpreted in such a way that either the purchase of the Goods by the Agency under the Contract is prohibited, or the Agency is prohibited from paying for such Goods from the planned funding source; or (iii) Contractor commits any material breach of the Contract. Pursuant to this Section 2.21.2.2, upon receipt of written notice of termination, Contractor shall stop performance under the Contract as directed by

ODFW.

2.21.3 CONTRACTOR: Contractor may terminate the Contract immediately upon notice to ODFW, or at such later date as it may establish in such notice as set forth in Section 2.18.2.1, upon Agency's failure to pay for the Goods, in accordance with the terms of this Contract.

2.22 ACCESS TO RECORDS: Contractor shall retain, maintain, and keep accessible all records relevant to the Contract (the "Records") for minimum of six (6) years, or such longer period as may be required by applicable law following expiration or termination of the Contract, or until the conclusion of any audit, controversy or litigation arising out of or related to the Contract, whichever date is later.

Financial Records shall also be kept in accordance with generally accepted accounting principles.

During the Record-retention period established in this Section 2.22, the Contractor shall permit the State, its duly authorized representatives, and the federal government access to the Records at a reasonable time and place for purposes of examination and copying.

2.23 NOTICES: All notices required under the Contract must be in writing and addressed to the party's authorized representative. For the State, the authorized representative is the contact point identified in Section 10. Contractor's authorized representative is the individual identified in Section

10. Mailed notices are deemed received five (5) days after post marked, when deposited, properly addressed and prepaid, into the U.S. postal service. Faxed notices are deemed received upon electronic confirmation of successful transmission to the designated fax number. Personal delivery is effective upon delivery.

2.24 ACKNOWLEDGEMENTS: The parties acknowledge and agree that other than designation of order quantities, types of Goods, delivery destination, and dates of order and scheduled delivery of other performance, or acknowledgement documents are simply for the convenience of the parties to initiate or confirm an order of Goods under this Contract and that no terms or conditions contained in those documents will be of any force or effect or be binding upon the parties.

2.25 GOVERNING LAW: The Contract is governed by, construed, and enforced in accordance with the laws of the State of Oregon, without regard to principles of conflicts of laws. To the extent not modified by the terms of this Contract, the UCC govern s this transaction.

2.26 VENUE; CONSENT TO JURISDICTION: Any claim, action, suit or proceeding (collectively, "Claim") between the State and Contractor that arises from or relates to the Contract must brought and conducted solely and exclusively within the Circuit Court of Marion County for the State of Oregon;

provided, however, if a Claim must be brought in a federal forum, then unless otherwise prohibited by law, it must be brought and conducted solely and exclusively within the United States District Court for the District of Oregon. CONTRACTOR HEREBY CONSENTS TO THE IN PERSONAM JURISDICTION OF SAID COURTS AND WAIVES ANY OBJECTION TO VENUE IN SUCH COURTS, AND WAIVES ANY CLAIM THAT SUCH FORUM IS AN INCONVENIENT FORUM. Nothing herein may be construed as a waiver of the State's sovereign or governmental immunity, whether derived from the Eleventh Amendment to the United States Constitution or otherwise, or of any defenses to Claims or jurisdiction based thereon.

2.27 SURVIVAL: Any terms of this Contract, which by their nature are intended to survive termination or expiration including but not limited to warranty, indemnification, access to records, governing law, venue, consent to jurisdiction, termination and remedies provisions so survive the termination or expiration of this Contract.

2.28 SEVERABILITY: If any provision of the Contract is declared by a court of competent jurisdiction to be illegal or otherwise invalid, the validity of the remaining terms and provisions will not be affected, and the rights and obligations of the parties will be construed and enforced as if the Contract did not contain the particular provision held to be invalid.

2.29 ASSIGNMENT/SUBCONTRACT/SUCCESSORS: Contractor shall not assign, sell, transfer, or subcontract rights, or delegate responsibilities under the Contract, in whole or in part, without the prior written approval of ODFW. Further, no such written approval will relieve Contractor of any obligations under the Contract, and any assignee, transferee, or delegate will be considered the agent of Contractor. The provisions of the Contract will be binding upon and inure to the benefit the parties to the Contract and their respective successors and permitted assigns.

2.30 MERGER CLAUSE; AMENDMENT; WAIVER: This Contract constitutes the entire agreement between the parties on the subject matter thereof. There are no understandings, agreements, or representations, oral or written, not specified therein regarding the Contract. The Contract may be amended to the extent permitted by applicable statutes and administrative rules. No waiver, consent, or amendment of terms of the Contract will bind either party unless in writing and signed by both parties, and all necessary approvals have been obtained. Waivers and consents will be effective only in the specific instance and for the specific purpose given. The failure of the State to enforce any provision of the Contract will not constitute a waiver by the State of that or any other provision.

2.31 DELIVERY COMPONENTS: All deliveries must be F.O.B destination with all transportation and handling charges paid by Contractor, unless specified otherwise in the solicitation documents.

Responsibility and liability for loss or damage remains with Contractor until final inspection and acceptance when responsibility passes to the State except as to latent defects, fraud, and, Contractor's warranty obligations.

SECTION 3 - SPECIAL CONTRACT TERMS AND CONDITIONS

3.1 Contract Provisions for Non-Federal Entity Contracts under Federal Awards: Contractor is responsible to comply with the following federal laws, executive orders and regulations, as applicable. All subcontracts or lower-tier contracts entered into by Contractor shall contain the following provisions, requiring the lower-tier contractor to comply with such provisions, to the extent such lower-tier agreements are allowed by ODFW:

Appendix II to Part 200

A. Simplified Acquisition Threshold. Contracts for more than the simplified acquisition threshold currently set at $150,000, which is the inflation adjusted amount determined by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) as authorized by 41 U.S.C. 1908, must address administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms, and provide for such sanctions and penalties as appropriate.

B. Termination for Cause and Convenience. All contracts in excess of $10,000 must address termination for cause and for convenience by the non-Federal entity including the manner by which it will be effected and the basis for settlement.

C. Equal Employment Opportunity. Except as otherwise provided under 41 CFR Part 60, all contracts that meet the definition of “federally assisted construction contract” in 41 CFR Part 60-

1.3 must include the equal opportunity clause provided under 41 CFR 60-1.4(b), in accordance with Executive Order 11246, “Equal Employment Opportunity” (30 FR 12319, 12935, 3 CFR Part, 1964-1965 Comp., p. 339), as amended by Executive Order 11375, “Amending Executive Order 11246 Relating to Equal Employment Opportunity,” and implementing regulations at 41 CFR part 60, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor.”

D. Davis-Bacon Act, as amended (40 U.S.C. 3141-3148). When required by Federal program legislation, all prime construction contracts in excess of $2,000 awarded by non-Federal entities must include a provision for compliance with the Davis-Bacon Act (40 U.S.C. 3141-3144, and 3146-3148) as supplemented by Department of Labor regulations (29 CFR Part 5, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction”). In accordance with the statute, contractors must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. The non-Federal entity must place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The non-Federal entity must report all suspected or reported violations to the Federal awarding agency.

The contracts must also include a provision for compliance with the Copeland “Anti-Kickback” Act (40 U.S.C. 3145, as supplemented by Department of Labor regulations (29 CFR Part 3, “Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States”). The Act provides that each contractor or sub-recipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. The non-Federal entity must report all suspected or reported violations to the Federal awarding agency.

E. Contract Work Hours and Safety Standards Act (40 U.S.C. 327-333). Contractor shall include a provision for compliance with 40 U.S.C. 3702 and 3704 for contracts in excess of $100,000 that involve the employment of mechanics or laborers, as supplemented by Department of Labor regulations (29 CFR Part 5). Under 40 U.S.C. 3702 of the Act, each contractor shall be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. 3704 are applicable to construction work and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence.

F. Rights to Inventions Made Under a Contract or Agreement. If the Federal award meets the definition of “funding agreement” under 37 CFR §401.2 (a) and the recipient or subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that “funding agreement,” the recipient or subrecipient must comply with the requirements of 37 CFR Part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the awarding agency.

G. Clean Air Act (42 U.S.C. 7401- 7671q.) and the Federal Water Pollution Control Act (33 U.S.C.

1251- 1387), as amended—Contractor shall comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251-1387). Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA).

H. Debarment and Suspension (Executive Orders 12549 and 12689)—A contract award (see 2 CFR 180.220) must not be made to parties listed on the government-wide Excluded Parties List System in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 CFR Part 1986 Comp., p. 189) and 12689 (3 CFR Part 1989 Comp., p. 235), “Debarment and Suspension.” The Excluded Parties List System in SAM contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549.

I. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352)—Contractors that apply or bid for an award of $100,000 or more must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C.

1352. Each tier must also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the non-Federal award.

J. See §200.322 Procurement of recovered materials. Contractor shall comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act.

The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 CFR part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired by the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.

3.2 Other Provisions Required by Federal Agency:

A. 41 USC §4712 Enhancement of Recipient and Sub-recipient Employee Whistleblower Protection:

(a) This award, related sub-awards, and related contracts over the simplified acquisition threshold and all employees working on this award, related sub-awards, and related contracts over the simplified acquisition threshold are subject to the whistleblower rights and remedies established at 41 USC 4712.

(b) Recipients, their sub-recipients, and their contractors awarded contracts over the simplified acquisition threshold related to this award, shall inform their employees in writing, in the predominant language of the workforce, of the employee whistleblower rights and protections under 41 USC 4712.

(c) The recipient shall insert this clause, including this paragraph (c), in all sub-awards and in contracts over the simplified acquisition threshold related to this award.

B. 41 USC §6306 Prohibition on Members of Congress Making Contracts with Federal Government:

No member of or delegate to Congress or Resident Commissioner shall be admitted to any share of this award, or to any benefit that may arise therefrom; this provision shall not be construed to extend to an award made to a corporation for the public’s general benefit.

C. Executive Order 13513, Federal Leadership on Reducing Text Messaging while Driving:

Contractors are encouraged to adopt and enforce policies that ban text messaging while driving, including conducting initiatives of the type described in section 3(a) of the Order.

3.2 State of Oregon Rider to Software License and Support Agreement

If Contractor’s Goods and Services include one or more intellectual property license(s) (such as a software license or an end user license agreement) or maintenance and support agreement(s), then http://www.gpo.gov/fdsys/pkg/USCODE-2012-title41/pdf/USCODE-2012-title41-subtitleI-divsnC-chap47-sec4712.pdf http://www.gpo.gov/fdsys/pkg/USCODE-2011-title41/html/USCODE-2011-title41-subtitleII-chap63-sec6306.htm http://www.whitehouse.gov/the_press_office/Executive-Order-Federal-Leadership-on-Reducing-Text-Messaging-while-Driving/ such license(s) and support agreement(s) are subject to the terms and conditions of the appropriate State of Oregon rider, found online at: http://www.oregon.gov/DAS/EGS/ps/Pages/IT- Procurement.aspx. The parties will execute the relevant rider and include the rider and the affected license(s) and support agreement(s) as an exhibit to this Contract.

SECTION 4 – INSURANCE:

INSURANCE REQUIREMENTS:

Contractor shall obtain at Contractor’s expense the insurance specified in this section 4 prior to performing under this Contract and shall maintain it in full force and at its own expense throughout the duration of this Contract, as required by any extended reporting period or tail coverage requirements, and all warranty periods that apply. Contractor shall obtain the following insurance from insurance companies or entities that are authorized to transact the business of insurance and issue coverage in State and that are acceptable to Agency. Coverage shall be primary and non-contributory with any other insurance and self-insurance, with the exception of Professional Liability and Workers’ Compensation. Contractor shall pay for all deductibles, self-insured retention and self-insurance, if any.

WORKERS’ COMPENSATION & EMPLOYERS’ LIABILITY

All employers, including Contractor, that employ subject workers, as defined in ORS 656.027, shall comply with ORS 656.017 and provide workers' compensation insurance coverage for those workers, unless they meet the requirement for an exemption under ORS 656.126(2). Contractor shall require and ensure that each of its subcontractors complies with these requirements. If Contractor is a subject employer, as defined in ORS 656.023, Contractor shall also obtain employers' liability insurance coverage with limits not less than $500,000 each accident. If contractor is an employer subject to any other state’s workers’ compensation law, Contactor shall provide workers’ compensation insurance coverage for its employees as required by applicable workers’ compensation laws including employers’ liability insurance coverage with limits not less than $500,000 and shall require and ensure that each of its out-of-state subcontractors complies with these requirements.

COMMERCIAL GENERAL LIABILITY: Required Not required

Commercial General Liability Insurance covering bodily injury and property damage in a form and with coverage that are satisfactory to the State. This insurance shall include personal and advertising injury liability, products and completed operations, contractual liability coverage for the indemnity provided under this contract, and have no limitation of coverage to designated premises, project or operation. Coverage shall be written on an occurrence basis in an amount of not less than $1,000,000.00 per occurrence. Annual aggregate limit shall not be less than $2,000,000.00.

PROFESSIONAL LIABILITY: Required Not required

Professional Liability insurance covering any damages caused by an error, omission or any negligent acts related to the services to be provided under this Contract by the Contractor and Contractor’s subcontractors, agents, officers or employees in an amount not less than $1,000,000.00 per claim.

Annual aggregate limit shall not be less than $2,000,000.00. If coverage is on a claims made basis, then either an extended reporting period of not less than 24 months shall be included in the Professional Liability insurance coverage, or the Contractor shall provide Tail Coverage as stated below.

EXCESS/UMBRELLA INSURANCE:

http://www.oregon.gov/DAS/EGS/ps/Pages/IT-Procurement.aspx http://www.oregon.gov/DAS/EGS/ps/Pages/IT-Procurement.aspx

A combination of primary and excess/umbrella insurance may be used to meet the required limits of insurance.

ADDITIONAL INSURED:

All liability insurance, except for Workers’ Compensation, Professional Liability, and Network Security and Privacy Liability (if applicable), required under this Contract must include an additional insured endorsement specifying the State of Oregon, its officers, employees and agents as Additional Insureds, including additional insured status with respect to liability arising out of ongoing operations and completed operations, but only with respect to Contractor's activities to be performed under this Contract. Coverage shall be primary and non-contributory with any other insurance and self-insurance. The Additional Insured endorsement with respect to liability arising out of your ongoing operations must be on ISO Form CG 20 10 07 04 or equivalent and the Additional Insured endorsement with respect to completed operations must be on ISO form CG 20 37 04 13 or equivalent.

WAIVER OF SUBROGATION:

Contractor shall waive rights of subrogation which Contractor or any insurer of Contractor may acquire against the Agency or State of Oregon by virtue of the payment of any loss. Contractor will obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the Agency has received a waiver of subrogation endorsement from the Contractor or the Contractor’s insurer(s).

TAIL COVERAGE:

If any of the required insurance is on a claims made basis and does not include an extended reporting period of at least 24 months, Contractor shall maintain either tail coverage or continuous claims made liability coverage, provided the effective date of the continuous claims made coverage is on or before the effective date of this Contract, for a minimum of 24 months following the later of (i) Contractor’s completion and Agency’s acceptance of all Services required under this Contract, or, (ii) Agency or Contractor termination of contract, or, iii) The expiration of all warranty periods provided under this Contract.

CERTIFICATE(S) AND PROOF OF INSURANCE:

Contractor shall provide to Agency…