20422 Trio.pdf

COOPERATIVE PURCHASING AGREEMENT

WASHINGTON/OREGON COOPERATIVE

CONTRACT NO. 20422

COMMUNICATIONS & MARKETING SERVICES

CATEGORIES 1 ADVERTISING & MARKETING CAMPAIGNING,

AND 5 GRAPHIC DESIGN

For Use by Eligible Purchasers

By and Between

STATE OF WASHINGTON

DEPARTMENT OF ENTERPRISE SERVICES

and

TRIO NORTHWEST BUSINESS SOLUTIONS, INC.

Dated March 1, 2024.

STATEWIDE CONTRACT NO. 20422 – COMMUNICATIONS & MARKETING SERVICES 1

(Rev. 2023-05-15)

COOPERATIVE PURCHASING AGREEMENT

WASHINGTON/OREGON COOPERATIVE

CONTRACT NO. 20422

COMMUNICATION & MARKING SERVICES

CATEGORIES 1 ADVERTISING & MARKETING CAMPAIGNING,

AND CATEGORY 5 GRAPHIC DESIGN

This 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 Trio Northwest Business Solutions, Inc., a Washington profit corporation (“Contractor”) and is dated and effective as of March 1, 2024.

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 also has authorized Enterprise Services to participate in, sponsor, conduct, or administer cooperative purchasing agreements. See RCW 39.26.050(1). Accordingly, pursuant to Washington’s Procurement Code for Goods/Services, RCW 39.26, and the Interlocal Cooperation Act, RCW 39.34, Enterprise Services, and the State of Oregon have entered into an Interstate Cooperative Agreement for Joint Participation in Each State’s Purchasing Program. See WA/OR Interstate Cooperative Agreement No. DASPS-56815-14 (dated January 1, 2015). The WA/OR Interstate Cooperative Agreement enables specified eligible purchasers to utilize certain of each state’s designated competitively solicitated Contracts. The WA/OR Interstate Cooperative Agreement creates the opportunity for procurement efficiencies and cost savings as well as increasing potential use and marketplace incentives for vendors to contract with the states.

C. Enterprise Services, on behalf of the State of Washington, in collaboration with the State of Oregon, as part of a competitive governmental procurement, issued Competitive Solicitation No. 20422 dated August 30, 2023 to establish Cooperative Purchasing Agreements for various specified categories and subcategories of Communications & Marketing Services to enable eligible purchasers to procure specified Communications & Marketing Services from the qualified awarded Contractors in a cost effective, efficient manner using the terms and conditions of the Cooperative Purchasing Agreement.

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

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E. Enterprise Services has determined that entering into this Cooperative Purchasing Agreement will meet the identified needs and be in the best interest of the State of Washington.

F. The purpose of this Cooperative Purchasing Agreement is to enable eligible purchasers to purchase the above referenced categories 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 Contract is twenty-four (24) months, commencing March 1, 2024 and ending February 28, 2026; Provided, however, that if Contractor is not in default and if, by February 28, 2025, in Enterprise Services’ reasonable judgment, Contractor satisfactorily has met the performance-based goals for contract extension, Enterprise Services shall extend the term of this Contract, by written amendment, for up to thirty-six (36) additional months. Such extension amendment shall be on the same terms and conditions as set forth in this Contract. To earn the performance-based Contract term extension, Contractor must achieve the following performance-based metrics:

PERFORMANCE METRIC PERFORMANCE REQUIREMENT FOR CONTRACT EXTENSION

Insurance Endorsements:

Contractor timely provides to Enterprise Services at the designated address, without exception, annual insurance endorsements for the insurance coverages required by this Contract. See Exhibit C – Insurance Requirements at § 4.

Vendor Management Fee:

Contractor timely remits to Enterprise Service, with no less than a 75% on time rate over the contract term, the applicable Vendor Management Fee (VMF).

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 will 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 will 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”):

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

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

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

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

Evergreen State College;

Community colleges; and Technical colleges.

2.3. ORCPP MEMBERS. Oregon Cooperative Purchasing Program (ORCPP) Members, which include the following Oregon entities:

Cities, counties, school districts, and special districts;

Qualified rehabilitation facilities and residential programs in contract with the Oregon Department of Human Services;

Quasi-state agencies and independent state agencies with their own procurement authority;

Public bodies created as governmental entities but not considered a unit of local or municipal government;

Oregon constitutional offices;

Specified Public Benefit Nonprofit Corporations; and American Indian tribes or agencies.

ORCPP Members do not include Oregon state agencies subject to the Oregon Department of Administrative Services’ procurement authority.

2.4. 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., § 501(c)(3) nonprofit corporations that receive federal, state, or local funding); and Federally-recognized Indian Tribes located in the State of

Washington.

3. SCOPE – INCLUDED COMMUNICATION & MARKETING SERVICES AND PRICE.

3.1. CONTRACT SCOPE. Pursuant to this Cooperative Purchasing Agreement, Contractor is authorized to sell and provide only those Communication & Marketing Services set forth in Exhibit A – Included Communication & Marketing Services for the prices set forth in Exhibit B

– Prices for Communication & Marketing Services. Contractor shall not represent to any

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Purchaser under this Cooperative Purchasing Agreement that Contractor has contractual authority to sell or provide any goods and/or services beyond those set forth in Exhibit A – Included Communication & Marketing Services.

For purposes of this Cooperative Purchasing Agreement, Communication & Marketing Services means the specified categories of Communication & Marketing Services set forth in in Exhibit A – Included Communication & Marketing Services of any nature ordered by Purchaser pursuant to this Cooperative Purchasing Agreement and as identified in the Purchase Order. Where applicable, specifications for Communication & Marketing Services are detailed in this Cooperative Purchasing Agreement and the Purchase Order.

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 Communication & Marketing Services included in this Cooperative Purchasing Agreement; 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 Cooperative Purchasing Agreement.

3.3. ECONOMIC ADJUSTMENT. (For Categories 1) Beginning twenty-four (24) months after the effective date of this Contract and for every annual anniversary thereafter, the prices set forth in Exhibit B – Prices shall be adjusted, annually, to increase by 2%. Prices shall be adjusted on April 1st of each year. The economic adjustment shall be calculated as follows:

New Price = Old Price + (Old Price x 2%)

3.4. ECONOMIC ADJUSTMENT. (For Category 5) Beginning twenty-four (24) months after the effective date of this Contract and for every annual anniversary thereafter, the prices set forth in Exhibit B – Prices shall be adjusted, annually, to Increase by 3% Prices shall be adjusted on April 1st of each year. The economic adjustment shall be calculated as follows:

New Price = Old Price + (Old Price x 3%)

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 Communication & Marketing Services at no greater than the prices set forth in Exhibit B – Prices for Communication &Marketing Services (subject to economic adjustment as set forth herein).

3.6. CONTRACT INFORMATION. Enterprise Services shall maintain and provide to eligible Purchasers information regarding this Cooperative Purchasing Agreement, 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 Cooperative Purchasing Agreement 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 Cooperative Purchasing Agreement and at the time any order is placed pursuant to this Cooperative Purchasing Agreement. 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.

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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 Cooperative Purchasing Agreement all required licenses, certifications, permits, authorizations, and approvals necessary for Contractor’s proper performance of this Cooperative Purchasing Agreement.

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. WAGE VIOLATIONS. Contractor represents and warrants as previously certified in Contractor’s Bidder’s Certification, that during the term of this Cooperative Purchasing Agreement and the three (3) year period immediately preceding the award of the Cooperative Purchasing Agreement, 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.

4.6. 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.

4.7. EXECUTIVE ORDER 18-03 – WORKERS’ RIGHTS. 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 Cooperative Purchasing Agreement, Contractor shall not, as a condition of employment, require its employees to sign or agree to mandatory individual arbitration clauses or class or collective action waivers.

4.8. 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.

4.9. PUBLIC CONTRACTS AND PROCUREMENT FRAUD. Contractor represents and warrants that, within the three (3) year period prior to this Cooperative Purchasing Agreement, 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

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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.

4.10. 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.

4.11. 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 Cooperative Purchasing Agreement, Contractor shall maintain an accurate profile in WEBS.

4.12. 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.

4.13. 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 Cooperative Purchasing Agreement with eligible Purchasers and to ensure that those entities that utilize this Cooperative Purchasing Agreement are eligible Purchasers.

Contractor understands and acknowledges that neither Enterprise Services nor Purchasers are endorsing Contractor’s Communication & Marketing Services or suggesting that such Communication & Marketing 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.

4.14. CONTINGENT FEES. Contractor represents and warrants that no person or selling agent has been employed or retained to solicit or secure this Cooperative Purchasing Agreement 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.

4.15. 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 Communication & Marketing Services that are the subject of this Cooperative Purchasing Agreement.

4.16. 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 Cooperative Purchasing Agreement.

4.17. CONTRACT TRANSITION. Contractor represents and warrants that, in the event this Cooperative Purchasing Agreement 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

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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 Cooperative Purchasing Agreement for the sixty (60) day period immediately before such transition.

4.18. WASHINGTON STATE ENTERPRISE LEADERSHIP COMPETENCIES – DIVERSITY, EQUITY, & INCLUSION.

Contractor represents and warrants, as previously certified in Contractor’s Bidder’s Certification, that Contractor will follow the Washington State Enterprise Leadership Competencies, and if utilizing subcontractors, will ensure that such subcontractors also follow the Washington State Enterprise Leadership Competencies.

4.19. 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, in the States of Washington & Oregon.

4.20. WORK FOR HIRE. Contractor represents and warrants, as previously certified in Contractor’s Bidder’s Certification, that Contractor’s materials produced under this contract shall be considered “works for hire” as defined by the U.S. Copyright Act and will be owned by Purchaser. Purchaser shall be considered the author of such Materials. If the Materials are not considered “works for hire” under the U.S. Copyright laws, Contractor hereby irrevocably assigns all right, title, and interest in such Materials, including all intellectual property rights, to Purchaser effective from the moment of creations of such Materials.

5. QUALITY; WARRANTY; REMEDIES.

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

5.2. SERVICES REMEDY. If Communication & Marketing 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 Communication & Marketing Services at no additional cost to Purchaser or refund the amounts paid for the Communication & Marketing Services.

5.3. 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 the Communication & Marketing Services, in which case Contractor shall reimburse Purchaser for its actual costs or, at Purchaser’s option, Purchaser will offset the costs incurred from amounts owing to Contractor.

5.4. 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.

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6. SAFETY; SECURITY. Contractor’s failure to comply with any of the requirements in this Section shall be cause for termination.

6.1. REGULATORY REQUIREMENTS/SAFETY. Communication & Marketing Services supplied by Contractor shall meet all OSHA and other safety-related federal, state, local, and/or tribal regulatory requirements applicable to such services.

6.2. CLEAN-UP. If Contractor, its agents, employees, or subcontractors perform onsite Communication & Marketing Services, Contractor, at its cost, will remove all excess materials, equipment, packaging, and garbage within the scope of its performance of such 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 will have the right to remove the materials and set off the cost of clean up against amounts owed to Contractor.

6.3. ACCIDENT AND INJURY REPORTING. If Contractor, its agents, employees, or subcontractors are present at Purchaser’s premises, Contractor promptly will 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 in any Purchaser investigation of incidents.

6.4. ON SITE REQUIREMENTS. While on Purchaser’s premises, Contractor, its agents, employees, or subcontractors shall comply, in all respects, with Purchaser’s physical, fire, access, safety, and other 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 will be adequately trained and at all times comply with Purchaser’s requirements.

7. SUBCONTRACTORS.

7.1. CONTRACTOR RESPONSIBILITY. Notwithstanding any provision to the contrary, in the event Contractor elects to utilize subcontractors to perform this Cooperative Purchasing Agreement, Contractor shall: (a) incorporate Contractor’s responsibilities under this Cooperative Purchasing Agreement 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 Cooperative Purchasing Agreement; (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 Cooperative Purchasing Agreement, 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) will 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.

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7.3. SUBCONTRACTOR REPRESENTATIONS AND CERTIFICATIONS. Any Contractor representations or certifications set forth in this Cooperative Purchasing Agreement 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 will pay such subcontractor directly.

8. USING THE COOPERATIVE PURCHASING AGREEMENT – PURCHASES.

8.1. ORDERING REQUIREMENTS. Eligible Purchasers shall order Communication & Marketing Services from this Cooperative Purchasing Agreement, 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 Cooperative Purchasing Agreement shall apply to any Purchase Order, and, in the event of any conflict, the terms of this Cooperative Purchasing Agreement 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 Cooperative Purchasing Agreement.

8.2. DELIVERY REQUIREMENTS. Contractor must ensure that the Communication & Marketing Services are delivered or provided as required by this Cooperative Purchasing Agreement, the Purchase Order used by Purchaser, and as otherwise mutually agreed in writing between Purchaser and Contractor.

8.3. RECEIPT AND INSPECTION OF COMMUNICATION & MARKETING SERVICES. Communication & Marketing Services purchased under this Cooperative Purchasing Agreement are subject to Purchaser’s reasonable inspection, testing, and approval at Purchaser’s destination. Purchaser reserves the right to reject and refuse acceptance of Communication & Marketing Services that are not in accordance with this Cooperative Purchasing Agreement and Purchaser’s Purchase Order.

If there are any apparent defects in the Communication & Marketing Services at the time of delivery, Purchaser promptly will notify Contractor. At Purchaser’s option, and without limiting any other rights, Purchaser may require Contractor to repair or replace, at Contractor’s expense, any, or all of the defective Communication & Marketing Services or, at Purchaser’s option, Purchaser may note any such damage on the receiving report, decline acceptance, and deduct the cost of rejected Communication & Marketing Services from final payment. Payment for any Communication & Marketing Services under such Purchase Order shall not be deemed acceptance.

9. INVOICING & PAYMENT.

9.1. CONTRACTOR INVOICE. Contractor shall submit properly itemized invoices to Purchaser’s designated invoicing contact for Communication & Marketing Services delivered under this Cooperative Purchasing Agreement. Such invoices shall itemize the following:

(a) Contract No. 20422;

(b) Contractor name, address, telephone number, and email address for billing issues (i.e., Contractor Customer Service Representative);

(c) Contractor’s Federal Tax Identification Number;

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(d) Date(s) of delivery;

(e) Applicable Communication & Marketing Services;

(f) Invoice amount; and

(g) Payment terms, including any available prompt payment discounts.

Contractor’s invoices for payment shall reflect accurate Cooperative Purchasing Agreement prices. Invoices will not be processed for payment until receipt of a complete invoice as specified herein.

9.2. PAYMENT. Payment is the sole responsibility of, and will be made by, the Purchaser.

Purchaser’s obligation to pay invoices is subject to receipt of a timely and accurate invoice and conforming Communication & Marketing Services. Unless Contractor has provided a prompt payment discount set forth in Exhibit B – Prices for Communication & Marketing Services, Purchaser’s payment is due within thirty (30) calendar days of invoice. Purchaser retains the right of setoff for any amount due or owing to Purchaser. Purchaser may make payments electronically (e.g., ACH payments). Contractor shall provide information necessary to facilitate electronic payments. If Purchaser fails to make timely payment(s), Contractor may invoice Purchaser in the amount of one percent (1%) per month on the amount overdue or a minimum of $1. Payment will not be considered late if a check or warrant is mailed within the time specified.

9.3. OVERPAYMENTS. Contractor promptly shall refund to Purchaser the full amount of any erroneous payment or overpayment. Such refunds shall occur within thirty (30) calendar days of written notice to Contractor; Provided, however, that Purchaser shall have the right to elect to have either direct payments or written credit memos issued. If Contractor fails to make timely refunds of overpayment(s) (either directly or by credit memo), Contractor shall pay Purchaser interest at the rate of one percent (1%) per month on the amount overdue thirty

(30) calendar days after notice to Contractor.

9.4. ADVANCE PAYMENT PROHIBITED. Except as authorized by law, Contractor shall not request or receive advance payment for any Communication & Marketing Services furnished by Contractor pursuant to this Cooperative Purchasing Agreement.

9.5. NO ADDITIONAL CHARGES. Unless otherwise specified herein, Contractor shall not include or impose any additional charges including, but not limited to, charges for shipping, handling, insurance, or payment processing.

9.6. TAXES/FEES. Contractor promptly shall pay all applicable taxes on its operations and activities pertaining to this Contract. Failure to do so shall constitute breach of this Contract. Unless otherwise agreed, Purchaser shall pay applicable sales tax imposed by the State of Washington on purchased Goods and/or Services. Contractor’s invoices shall separately state

(a) taxable and non-taxable charges and (b) sales/use tax due by jurisdiction. In regard to federal excise taxes, Contractor shall include federal excise taxes only if, after thirty (30) calendar days written notice to Purchaser, Purchase has not provided Contractor with a valid exemption certificate from such federal excise taxes.

9.7. TRAVEL. Contractor must comply with the Washington State Administrative and Accounting Manual (SAAM) Chapter 10 for all relevant travel policies and procedures. Notwithstanding any provision to the contrary, Contractor shall not invoice Purchaser for any travel costs unless such costs are agreed to in writing between the Contractor and Purchaser and set forth in Purchaser’s Purchase Order.

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10. CONTRACT MANAGEMENT.

10.1. CONTRACT ADMINISTRATION & NOTICES. Except for legal notices, the parties hereby designate the following contract administrators as the respective single points of contact for purposes of this Cooperative Purchasing Agreement. Enterprise Services’ contract administrator shall provide contract oversight. Contractor’s contract administrator shall be Contractor’s principal contact for business activities under this Cooperative Purchasing Agreement. The parties may change contract administrators by written notice as set forth below.

Any notices required or desired shall be in writing and sent by U.S. mail, postage prepaid, or sent via email, and shall be sent to the respective addressee at the respective address or email address set forth below or to such other address or email address as the parties may specify in writing:

Enterprise Services Contractor Attn: DES Team Apple Washington Dept. of Enterprise Services PO Box 41411 Olympia, WA 98504-1411 Tel: (360) 407-8008 Email: DESContractsTeamApple@des.wa.gov

Attn: Sue Daniels Trio Northwest Business Solutions, Inc 10700 SE 174th St.

Renton, WA 98055 Tel: (206) 728-8181 Email: sue@triogroupnw.com

Notices shall be deemed effective upon the earlier of receipt, if mailed, or, if emailed, upon transmission to the designated email address of said addressee.

10.2. CONTRACTOR CUSTOMER SERVICE REPRESENTATIVE. Contractor shall designate a customer service representative (and inform Enterprise Services of the same) who shall be responsible for addressing Purchaser issues pertaining to this Cooperative Purchasing Agreement.

10.3. LEGAL NOTICES. Any legal notices required or desired shall be in writing and delivered by U.S.

certified mail, return receipt requested, postage prepaid, or sent via email, and shall be sent to the respective addressee at the respective address or email address set forth below or to such other address or email address as the parties may specify in writing:

Enterprise Services Contractor Attn: Legal Services Manager Washington Dept. of Enterprise Services PO Box 41411 Olympia, WA 98504-1411 Email: greg.tolbert@des.wa.gov

Attn: Sue Daniels Trio Northwest Business Solutions, Inc 10700 SE 174th St.

Renton, WA 98055 Tel: (206) 728-8181 Email: sue@triogroupnw.com

Notices shall be deemed effective upon the earlier of receipt when delivered, or, if mailed, upon return receipt, or, if emailed, upon transmission to the designated email address of said addressee.

mailto:DESContractsTeamApple@des.wa.gov mailto:sue@triogroupnw.com mailto:greg.tolbert@des.wa.gov mailto:sue@triogroupnw.com

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11. CONTRACTOR SALES REPORTING; VENDOR MANAGEMENT FEE; & CONTRACTOR REPORTS.

11.1. CONTRACT SALES REPORTING. Contractor shall report total Contract sales quarterly for this Cooperative Purchasing Agreement to Enterprise Services, as set forth below.

(a) Contract Sales Reporting System. Contractor shall report quarterly Contract sales in Enterprise Services’ Contract Sales Reporting System. Enterprise Services will provide Contractor with a login password and a vendor number. The password and vendor number will be provided to the Sales Reporting Representative(s) listed on Contractor’s Bidder Profile.

(b) Data. Each sales report must identify every authorized Purchaser by name as it is known to Enterprise Services and its total combined sales amount invoiced during the reporting period (i.e., sales of an entire agency or political subdivision, not its individual subsections). The “Miscellaneous” option may be used only with prior approval by Enterprise Services. Upon request, Contractor shall provide contact information for all authorized Purchasers specified herein during the term of the Contract. If there are no Contract sales during the reporting period, Contractor must report zero sales.

(c) Due dates for Contract Sales Reporting. Quarterly Contract Sales Reports must be submitted electronically by the following deadlines for all Contract sales invoiced during the applicable calendar quarter:

QUARTER FOR SALES MADE IN

CALENDAR QUARTER ENDING

CONTRACT SALES REPORT

DUE BY PAST DUE

1 January 1 – March 31 April 30 May 1

2 April 1 – June 30 July 31 August 1

3 July 1 – September 30 October 31 November 1

4 October 1 – December 31 January 31 February 1

11.2. VENDOR MANAGEMENT FEE. Contractor shall pay to Enterprise Services a vendor management fee (“VMF”) of 1.25 percent on the purchase price for all Contract sales (the purchase price is the total invoice price less applicable sales tax) under this Cooperative Purchasing Agreement.

(a) The sum owed by Contractor to Enterprise Services as a result of the VMF is calculated as follows:

Amount owed to Enterprise Services = Total Contract sales invoiced (not including sales tax) x .0125.

(b) The VMF must be rolled into Contractor’s current pricing. The VMF must not be shown as a separate line item on any invoice unless specifically requested and approved by Enterprise Services.

(c) Enterprise Services will invoice Contractor quarterly based on Contract sales reported by Contractor. Contractor is not to remit payment until Contractor receives an invoice from Enterprise Services. Contractor’s VMF payment to Enterprise Services must reference this Contract number, the year and quarter for which the VMF is being remitted, and Contractor’s name as set forth in this Contract, if not already included on the face of the check.

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(d) Contractor’s failure to report accurate total net Contract sales, to submit a timely Contract sales report, or to remit timely payment of the VMF to Enterprise Services, may be cause for Enterprise Services to suspend Contractor or terminate this Contract or exercise remedies provided by law.

Without limiting any other available remedies, the parties agree that Contractor’s failure to remit to Enterprise Services timely payment of the VMF shall obligate Contractor to pay to Enterprise Services, to offset the administrative and transaction costs incurred by the State to identify, process, and collect such sums, the sum of $200.00 or twenty-five percent (25%) of the outstanding amount, whichever is greater, or the maximum allowed by law, if less.

(e) Enterprise Services reserves the right, upon thirty (30) calendar days advance written notice, to increase, reduce, or eliminate the VMF for subsequent purchases, and reserves the right to renegotiate Contract pricing with Contractor when any subsequent adjustment of the VMF might justify a change in pricing.

11.3. ANNUAL CONTRACT SALES REPORT. Contractor shall provide to Enterprise Services a detailed annual Contract sales report for this Cooperative Purchasing Agreement. Such report shall include, at a minimum: the Goods and/or Services sold (including, as applicable, item number or other identifier), per unit quantities sold, items and volumes purchased by Purchaser, shipment/delivery locations by Purchaser, and Contract price. This report must be provided in an electronic format that can be read by Microsoft (MS) Excel. Such report is due within thirty (30) calendar days of the annual anniversary of the effective date of this Contract.

12. RECORDS RETENTION & AUDITS.

12.1. RECORDS RETENTION. Contractor shall maintain books, records, documents, and other evidence pertaining to this Cooperative Purchasing Agreement and orders placed by Purchasers under it to the extent and in such detail as shall adequately reflect contract performance and administration of purchases, payments, taxes, and fees. Contractor shall retain such records for a period of six (6) years following expiration or termination of this Cooperative Purchasing Agreement or final payment for any order placed by a Purchaser against this Cooperative Purchasing Agreement, whichever is later; Provided, however, that if any litigation, claim, or audit is commenced prior to the expiration of this period, such period shall extend until all such litigation, claims, or audits have been resolved.

12.2. AUDIT. Enterprise Services reserves the right to audit, or have a designated third-party audit, applicable records to ensure that Contractor properly has invoiced Purchasers, and that Contractor has paid all applicable vendor management fees to Enterprise Services.

Accordingly, Contractor shall permit Enterprise Services, any Purchaser, and any other duly authorized agent of a governmental agency, to audit, inspect, examine, copy and/or transcribe Contractor’s books, documents, papers, and records directly pertinent to this Cooperative Purchasing Agreement or Purchase Orders placed by a Purchaser under this Cooperative Purchasing Agreement for the purpose of making audits, examinations, excerpts, and transcriptions. This right shall survive for a period of six (6) years following expiration or termination of this Cooperative Purchasing Agreement or final payment for any order placed by a Purchaser against this Cooperative Purchasing Agreement, whichever is later; Provided, STATEWIDE CONTRACT NO. 20422 – COMMUNICATIONS & MARKETING SERVICES 14 however, that if any litigation, claim, or audit is commenced prior to the expiration of this period, such period shall extend until all such litigation, claims, or audits have been resolved.

12.3. OVERPAYMENT OF PURCHASES OR UNDERPAYMENT OF FEES. Without limiting any other remedy available to any Purchaser, Contractor shall (a) reimburse Purchasers for any overpayments inconsistent with the terms of this Cooperative Purchasing Agreement or Purchase Orders placed thereunder, at a rate of 125% of any such overpayments, found as a result of the examination of Contractor’s records; and (b) reimburse Enterprise Services for any underpayment of vendor management fees, at a rate of 125% of such fees found as a result of the examination of Contractor’s records (e.g., if Contractor underpays the Vendor Management Fee by $500, Contractor would be required to pay to Enterprise Services $500 x 1.25 = $625); Provided, however, that, in the event Contractor timely discovers and corrects any Purchaser overpayment or Contractor underpayment of vendor management fees and does so prior to the initiation of any audit, Contractor shall be entitled to reimburse Purchaser or pay to Enterprise Services the actual amount of such Purchaser overpayment or such underpayment of vendor management fees.

13. INSURANCE.

13.1. REQUIRED INSURANCE. Contractor, at its expense, shall maintain in full force and effect the insurance coverages set forth in Exhibit C – Insurance Requirements. All costs for insurance, including any payments of deductible amounts, shall be considered incidental to, and included in the prices for Communication & Marketing Services and no additional payment shall be made to Contractor.

13.2. WORKERS COMPENSATION. Contractor shall comply with applicable workers compensation statutes and regulations (e.g., RCW Title 51, Industrial Insurance). If Contractor fails to provide industrial insurance coverage or fails to pay premiums or penalties on behalf of its employees as may be required by law, Enterprise Services may terminate this Cooperative Purchasing Agreement. This provision does not waive any of the Washington State Department of Labor and Industries (L&I) rights to collect from Contractor. If Contractor performs Services on Purchaser’s behalf in the State of Washington, and only to the extent of claims against Contractor by Purchaser under the Indemnity obligations in this Cooperative Purchasing Agreement, Contractor expressly waives any immunity it may be granted under the Washington State Industrial Insurance Act, Title 51 RCW. Contractor’s indemnification obligation will not be limited in any way by any limitation on the amount or type of damages, compensation, or benefits payable to or for any third party under workers’ compensation acts, disability benefit acts, or other employee benefit acts. The parties expressly acknowledge and certify that the waiver of immunity under Title 51 RCW was mutually negotiated and agreed upon.

14. CLAIMS.

14.1. ASSUMPTION OF RISKS; CLAIMS BETWEEN THE PARTIES. Contractor assumes sole responsibility and all risks of personal injury or property damage to itself and its employees and agents in connection with its operations under this Cooperative Purchasing Agreement. Enterprise Services has made no representations regarding any factor affecting Contractor’s risks.

Contractor shall pay for all damage to any Purchaser’s property resulting directly or indirectly from Contractor’s acts or omissions under this Contract.

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14.2. THIRD-PARTY CLAIMS; GENERAL INDEMNITY. To the fullest extent permitted by law, Contractor shall defend, indemnify, and hold Enterprise Services and any Purchaser and their employees and agents harmless from and against all claims, demands, judgments, assessments, damages, penalties, fines, costs, liabilities, or losses including, without limitation, sums paid in settlement of claims, attorneys’ fees, consultant fees, and expert fees (collectively “Claims”) arising out of Contractor’s or its successors’, agents’, or subcontractors’ negligence, other tortious fault, or intentional misconduct under this Cooperative Purchasing Agreement;

Provided, however, that no right to indemnity will exist as to that portion of a Claim resulting from the sole negligence, tortious fault, or intentional misconduct of Enterprise Services or Purchaser. The parties agree that if there are any limitations of Contractor’s liability, including a limitation of liability clause for anyone for whom the Contractor is responsible, such limitations of liability shall not apply to injuries to persons (including death), damages to property, data breach, and/or intellectual property infringement. Contractor shall take all steps needed to keep Purchaser’s property free of liens arising from Contractor’s activities, and promptly obtain or bond the release of any such liens that may be filed.

14.3. INTELLECTUAL PROPERTY INDEMNITY. To the fullest extent permitted by law, Contractor shall defend, indemnify, and hold Enterprise Services and any Purchaser and their employees and agents harmless from against any and all Claims resulting from allegations of infringement of any patents, copyrights, trade secret, or similar intellectual property rights covering the Communications & Marketing Services provided, or the use of the Communications & Marketing Services under this Cooperative Purchasing Agreement. If Purchaser’s use of the Communication & Marketing Services provided by Contractor is enjoined based on an intellectual property infringement Claim, Contractor shall, at its own expense, either procure for Purchaser the right to continue using the Communications & Marketing Services or, after consulting with Purchaser and obtaining Purchaser’s consent, replace or modify the Communications & Marketing Services with substantially similar and functionally equivalent non-infringing Communications & Marketing Services.

15. DISPUTE RESOLUTION. The parties shall cooperate to resolve any dispute pertaining to this Cooperative Purchasing Agreement efficiently, as timely as practicable, and at the lowest possible level with authority to resolve such dispute. If, however, a dispute persists and cannot be resolved, it may be escalated within each organization. In such situation, upon notice by either party, each party, within five (5) business days shall reduce its description of the dispute to writing and deliver it to the other party. The receiving party then shall have three (3) business days to review and respond in writing.

In the event that the parties cannot then agree on a resolution of the dispute, the parties shall schedule a conference between the respective senior managers of each organization to attempt to resolve the dispute. In the event the parties cannot agree, either party may resort to court to resolve the dispute.

16. TERMINATION; EXPIRATION; SUSPENSION; & REMEDIES.

16.1. TERMINATION. This Cooperative Purchasing Agreement may be terminated: (a) upon the mutual written agreement of the parties; (b) by the non-breaching party where the breach is not cured within thirty (30) calendar days after written notice of breach is delivered…