28223c Royal Restrooms.pdf

CONTRACT

NO. 28223

PORTABLE SANITATION SERVICES

Category 3 – Portable Showers

For use in the Following Counties:

Statewide – All counties

For Use by Eligible Purchasers

By and Between

STATE OF WASHINGTON

DEPARTMENT OF ENTERPRISE SERVICES

and

SALISH SEA MARINE LLC DBA ROYAL RESTROOMS

Dated April 25, 2024.

STATEWIDE CONTRACT NO. 28223 – PORTABLE SANITATION SERVICES 1

(Rev. 2022-11-16)

CONTRACT

NO. 28223

PORTABLE SANITATION SERVICES

Category 3 – Portable Showers

For use in the following Counties:

Statewide – All counties

This Goods/Services Contract (“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 Salish Sea Marine dba Royal Restrooms of Washington, a Washington Limited Liability Company (“Contractor”) and is dated and effective as of April 25, 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. 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. Washington state agencies and other eligible purchasers have periodic or ongoing operational needs to rent portable toilets, handwashing stations, and/or portable shower trailers and ancillary services (e.g., delivery, maintenance, and pickup) for such goods.

Accordingly, Enterprise Services, on behalf of the State of Washington, as part of a competitive governmental procurement, issued Competitive Solicitation No. 28223 dated December 6, 2023. The Competitive Solicitation was designed to enable eligible purchasers to rent specified categories of portable toilets, handwashing stations, and/or portable shower trailers and ancillary services for each category of such goods (collectively and categorically “Portable Sanitation Services”) from awarded Contractors in a cost effective, efficient manner using the terms and conditions of this Contract.

C. The Competitive Solicitation was structured to result in Contract awards by category of Goods/Services and geographically, by County. The Competitive Solicitation reserves the right to award additional Contracts to a qualified Washington Small Business and/or Certified Veteran-Owned Business.

D. Enterprise Services evaluated all responses to the Competitive Solicitation and identified Contractor as an apparent successful bidder for the above-referenced category(ies) and County(ies).

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

F. The purpose of this Contract is to enable eligible purchasers to obtain the Goods and/or Services as set forth herein.

STATEWIDE CONTRACT NO. 28223 – PORTABLE SANITATION SERVICES 2

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 April 25, 2024 and ending April 24, 2026; Provided, however, that if Contractor is not in default and if, by April 25, 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.

Damage Reports:

Contractor timely provides to Enterprise Services the detailed quarterly damage report as required in Section 11.4.

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

STATEWIDE CONTRACT NO. 28223 – PORTABLE SANITATION SERVICES 3

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

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

2.2. WASHINGTON STATE INSTITUTIONS OF HIGHER EDUCATION (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. 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 GOODS AND/OR SERVICES AND PRICE.

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

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

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

(c) Specifications. Where applicable, specifications for Goods and/or Services are detailed in this Contract and the Purchase Order.

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

STATEWIDE CONTRACT NO. 28223 – PORTABLE SANITATION SERVICES 4

3.3. PRICE ADJUSTMENT. The Contract prices are the maximum prices the Contractor may charge.

Pricing shall remain firm and fixed for one (1) year from the Contract’s effective date.

Beginning twelve (12) months after the effective date of this Contract and for every anniversary thereafter, the prices set forth in Exhibit B shall be increased by 3.5%. This fixed percentage increase is based on the average Consumer Price Index for All Urban Consumers in the West over the last five years as published by the United States Department of Labor, Bureau of Labor and Statistics (BLS).

3.4. PRICE CEILING. Although Contractor may offer lower prices to Purchasers, during the term of this Contract, Contractor guarantees to provide the Goods and/or Services at no greater than the prices set forth in Exhibit B – Prices for Goods/Services (subject to price adjustment as set forth herein).

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

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

4.1. QUALIFIED TO DO BUSINESS. Contractor represents and warrants that Contractor is (a) in good standing and has been in business for a minimum of one (1) year; (b) qualified to do business in the State of Washington; and (c) registered with the Washington State Department of Revenue and the Washington Secretary of State.

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

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

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

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

STATEWIDE CONTRACT NO. 28223 – PORTABLE SANITATION SERVICES 5

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 Contract, Contractor shall not, as a condition of employment, require its employees to sign or agree to mandatory individual arbitration clauses or class or collective action waivers.

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

4.10. 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 Contract, 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 Contract with eligible Purchasers and to ensure that those entities that utilize this Contract are eligible Purchasers. Contractor understands and acknowledges that neither Enterprise Services nor Purchasers are endorsing Contractor’s Goods and/or Services or suggesting that such Goods and/or Services are the best or only solution to their needs.

Accordingly, Contractor further represents and warrants that Contractor shall make no

STATEWIDE CONTRACT NO. 28223 – PORTABLE SANITATION SERVICES 6

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 Contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established agents as defined in the Federal Acquisition Regulations.

4.15. 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 Goods and/or Services that are the subject of this Contract.

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 Contract.

4.17. HAZARDOUS WASTE. Contractor represents and warrants, as previously certified in Contractor’s Bidder’s Certification, that, during the past five (5) years, Contractor has not been sanctioned or penalized by any governmental authority for improper disposal of hazardous waste/materials or any violations of law pertaining to hazardous waste/materials.

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

5. QUALITY; WARRANTY; REMEDIES.

5.1. GOODS WARRANTY. Contractor warrants that, during the term of the Contract (“Goods Warranty Period”), the Goods: (a) are free from defects in design, material, and workmanship; (b) are fit and safe for the intended purposes and appropriate for the specified application(s) (if any); (c) are consistent with recognized industry quality standards;

(d) comply with the requirements, specifications, drawings, standards, and descriptions included in this Contract; and (e) are delivered in full compliance with applicable law (“Goods Warranty”).

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

STATEWIDE CONTRACT NO. 28223 – PORTABLE SANITATION SERVICES 7

limitation, actual damages, and, as applicable and awarded under the law, to a prevailing party, reasonable attorneys’ fees, and costs.

5.3. SERVICES WARRANTY. Contractor warrants that: (a) Services 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”).

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

5.5. FAILURE TO REMEDY. If Contractor does not remedy a defect or nonconformity within ten (10) calendar days after receipt of written notice from Purchaser, or if an emergency exists rendering it impossible or impractical for Purchaser to have Contractor provide a remedy, Purchaser may, without prejudice to any other rights or remedies available to it, make or cause to be made required modifications, adjustments, or repairs, or may replace Goods or 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.

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. Goods and/or Services supplied by Contractor shall meet all OSHA and other safety-related federal, state, local, and/or tribal regulatory requirements applicable to the Goods and/or Services.

6.2. MATERIAL SAFETY DATA SHEETS. If requested, Contractor shall provide Purchaser with all appropriate Material Safety Data Sheets (“MSDS”) at the time of delivery of each shipment of Goods which requires such compliance and/or and for materials used by Contractor while performing Services and any updates of the same.

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

6.4. ACCIDENT AND INJURY REPORTING. If Contractor, its agents, employees, or subcontractors are present at Purchaser’s premises, Contractor promptly 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.

6.5. 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

STATEWIDE CONTRACT NO. 28223 – PORTABLE SANITATION SERVICES 8

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. Contractors’ employees will perform in a professional manner, respect the purchaser’s property, roads, signs, and structures. Contractor may be required to comply with conditions prior to gaining access to certain Purchaser locations (i.e., background checks, searches, etc.).

6.6. POTENTIALLY DANGEROUS MATERIALS. Potentially Dangerous Materials is based on a contractor’s reasonable judgement that the material found possesses a threat to an employee or environment (i.e., explosives, drug residue, syringes and needles, and firearms). Contractor is responsible for Contractor’s use of potentially dangerous materials when servicing a unit or any other operations. See section 8.5 (a) for Contractor’s responsibilities when potentially dangerous materials are discovered in or on rented equipment.

6.7. SPILL RESPONSIBILITY. Notwithstanding any provision to the contrary, in the event of a spill, leak, or release in violation of applicable law (“Regulated Spill”), Contractor agrees to: (a) evacuate and warn those persons who may be impacted; (b) immediately contact emergency response agencies (i.e., call 911); (c) contact Purchaser representative and provide all notifications and reports as specified by applicable law; and (d) clean up such Regulated Spill in a manner that complies with applicable law.

7. SUBCONTRACTORS.

7.1. CONTRACTOR RESPONSIBILITY. Notwithstanding any provision to the contrary, in the event Contractor elects to utilize subcontractors to perform this Contract, Contractor shall:

(a) incorporate Contractor’s responsibilities under this Contract into its subcontracts; (b) be fully responsible for the performance of any such subcontractors (regardless of tier) and ensure that subcontractors comply with each and every Contractor obligation set forth in this Contract; (c) be the sole point of contact for Enterprise Services and any Purchasers regarding all contractual matters; (d) ensure that such subcontractors are registered in WEBS; and

(e) defend, indemnify, and hold Enterprise Services and Purchasers harmless in case of negligence, other tortious fault, or intentional misconduct by any such subcontractors (regardless of tier). Prior to utilizing any subcontractor to perform this Contract, Contractor shall provide written notice to Enterprise Services’ contract administrator. Such notice shall confirm that the subcontractor is registered in WEBS and provide the necessary information for Enterprise Services’ contract administrator to include such subcontractor(s) in Washington’s Purchasing Contract Management System (PCMS).

7.2. REPORTING. If Contractor is required to report to Purchaser and/or Enterprise Services, such report(s) 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.

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

8. USING THE CONTRACT.

STATEWIDE CONTRACT NO. 28223 – PORTABLE SANITATION SERVICES 9

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

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

(a) Contractor shall make all deliveries of rental equipment to the applicable delivery location within the specified response time (see Section 8.10 Response Time) from the date of order unless Purchaser requires an emergency, weekend, holiday delivery or date mutually agreed in writing between Purchaser and Contractor. Such deliveries shall occur during Purchaser’s normal work hours. Contractor promptly shall notify Purchaser in writing and/or phone of any anticipated or actual delay in Contractor’s performance, reason(s) for the delay, and the actions being taken by Contractor to overcome or minimize the delay.

(b) Contractor shall bear all risk of loss, damage, or destruction of the Goods and/or Services ordered hereunder that occurs prior to delivery, except loss or damage attributable to Purchaser’s fault or negligence and damages as specified in section 8.4 Damage to Goods.

(c) Contractor shall pickup Goods from delivery location within the time period mutually agreed in writing between Purchaser and Contractor.

8.3. RECEIPT AND INSPECTION OF GOODS AND/OR SERVICES. Goods and/or Services provided under this Contract are subject to Purchaser’s reasonable inspection and approval at Purchaser’s destination. Purchaser reserves the right to reject and refuse acceptance of Goods and/or Services that are not in accordance with this Contract and Purchaser’s Purchase Order. If there are any apparent defects in the Goods and/or 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 damaged Goods and/or Services or, at Purchaser’s option, Purchaser may note any such damage on the receiving report, decline acceptance, and deduct the cost of rejected Goods and/or Services from final payment. Payment for any Goods and/or Services under such Purchase Order shall not be deemed acceptance.

8.4. DAMAGE TO GOODS. This Contract is designed to be a cost-effective and efficient procurement solution both for Purchasers who rent Portable Sanitation Services and Contractors who provide Portable Sanitation Services. Accordingly, Enterprise Services, Purchasers, and Contractor understand and acknowledge that Portable Sanitation Services equipment (Goods), when used, are subject to normal, routine, anticipated wear and tear that is factored

STATEWIDE CONTRACT NO. 28223 – PORTABLE SANITATION SERVICES 10

into the rental pricing for such Portable Sanitation Services. Enterprise Services, Purchasers, and Contractor also understand and acknowledge that Portable Sanitation Services equipment (Goods), when used, may be subject to significant loss (e.g., vandalism, theft, and/or destruction) that is not factored into the rental pricing for such Portable Sanitation Services. Because of the unique nature of Portable Sanitation Services, the lack of cost-effective third-party risk management solutions (e.g., insurance), and the potential for consequential damages (e.g., a unit is destroyed and cannot be rented to Purchaser or another third-party), the parties desire to allocate potential damages (and price the Portable Sanitation Services accordingly) as follows:

(a) Routine Damages. Contractor shall be responsible for routine damages (e.g., normal, routine, and anticipated wear & tear damages) to Goods and, upon observation or notice, timely shall repair or replace impacted Goods.

(1) Contractor, at its expense, shall repair any routine damages or replace any unit that becomes unsuitable for use within 24 hours, unless otherwise agreed in writing by Purchaser and Contractor.

(2) Routine damages include:

Portable Toilets:

o Repair/replacing a coat hook, shelf, mirror, toilet seat, hand sanitizer dispenser, vent screen, toilet paper holder.

o Minor graffiti.

Hand washing Stations:

o Repair/replacing foot pedal, paper towel dispenser, soap dispenser.

o Minor graffiti.

Portable Showers:

o Repair/replacing shower head, shower curtain.

o Minor graffiti.

(b) Significant Loss Damages. Purchaser shall be responsible for significant loss damages. Significant loss damages are damages that, for example, result from vandalism, theft, and/or destruction and are (i) greater than routine damages; and (ii) because of the estimated cost to repair/replace such damage, result in a total loss of the Goods (i.e., the cost to repair/replace the Goods is equal to or exceeds the replacement cost).

(1) Contractor promptly will notify Purchaser of any significant loss damages and the estimated repair/replacement costs prior to repair/replacement.

If the unit is deemed a total loss, Contractor’s total loss replacement fee, payable by Purchaser, shall be the unit’s cost, paid by Contractor at the time of acquisition. The cost shall not be adjusted upwards for a markup or downward for depreciation. Labor related to acquiring new unit, such as picking up from manufacturer or distributor, or any additional

STATEWIDE CONTRACT NO. 28223 – PORTABLE SANITATION SERVICES 11

fees cannot be billed to the Purchaser. Contractor shall provide a copy of the unit’s invoice to the Purchaser at the time of invoicing for any total loss replacement fee.

(2) Purchaser, within thirty (30) days, shall compensate Contractor as set forth herein for significant loss damages.

If the unit is a total loss (e.g., the unit is stolen, destroyed, or the estimated cost to repair the damage equals or exceeds the unit replacement cost), Purchaser shall compensate Contractor for the unit replacement cost.

If the damage to the unit is less than a total loss, but greater than routine damages, Purchaser shall compensate Contractor for the unit repair; Provided, however, that in no event shall such repair cost equal or exceed the unit replacement cost. Prior to repairing such unit, Contractor shall provide Purchaser with a repair estimate.

(3) Contractor promptly shall replace any unit that is stolen, destroyed, or becomes unsuitable for use within 24 hours, unless otherwise agreed in writing by Purchaser and Contractor.

8.5. SERVICING REQUIREMENTS. Contractor shall service Goods within the time period mutually agreed in writing between Purchaser and Contractor. Contractor shall follow servicing guidelines set forth in Exhibit A – Included Goods/Services.

(a) Contractor shall service equipment with the specified response time (See Section 8.10 Response Time) or time mutually agreed in writing between Purchaser and Contractor. Contractor shall promptly notify Purchaser in writing and/or phone of any anticipated or actual delay in Contractor’s performance, reasons(s) for the delay, and the actions being taken by Contractor to overcome or minimize the delay.

(b) Contractor shall immediately notify Purchaser and/or the proper authorities of any Potentially Dangerous Materials, as defined in Section 6.6, that is found in or on rented equipment. Contractor will secure the equipment until arrangements have been made for cleanup/removal of Potentially Dangerous Materials. Contractor will work with Purchaser and/or the proper authorities to determine when equipment should be unsecured for cleanup/removal of Potentially Dangerous Materials.

(c) Purchaser is responsible to compensate Contractor for Contractor’s cost pertaining to any such clean up or removal.

(d) Purchasing entity is responsible for following state, local, federal laws for the cleanup and removal of hazardous materials.

8.6. EMERGENCY SERVICE. Emergency Service is defined as delivery, removal, or service of equipment same business day, after-hours, on holidays or weekends. Same business day is considered

STATEWIDE CONTRACT NO. 28223 – PORTABLE SANITATION SERVICES 12

Monday thru Friday 7:30 a.m. to 5 p.m. After-hours is considered Monday thru Friday from 5 p.m. to 7:30 a.m.

(a) Contractor shall provide Purchaser an emergency contact number.

(b) Contractor shall use commercially reasonable effort to provide Emergency

Services within the specified response time (see Section 8.10 Response Time) or time mutually agreed in writing between Purchaser and Contractor. Emergency service costs shall not exceed the prices set forth in Exhibit B – Prices for Goods/Services.

(c) Equipment delivery is subject to Contractor’s inventory availability (see Section 8.9 Order Fulfillment and Substitutions).

8.7. CUSTOMER SERVICE. Contractor shall provide friendly and professional customer service during normal business hours (7:30 a.m. – 5 p.m.) Monday thru Friday. Contractor shall respond to Purchaser messages (email and telephone) the same business day.

8.8. FORCE MAJEURE. Except for the obligation to pay amounts when due under the Contract, neither party will be liable to the other for damages due to a failure to carry out its obligations under this Contract when that failure is in whole or part caused by fire, hurricane, flood, earthquake, lightning, or other natural event or disaster; freight embargo; governmental or administrative prohibition; riot; strike (other than at the affected party’s operations or that of its suppliers); acts of public enemies or terrorists; sabotage; or other events beyond that party’s reasonable control (a “force majeure event”). A party affected by a force majeure event immediately shall notify the other, describing the event and estimating its duration.

The parties shall cooperate in good faith to mitigate the effects of the force majeure event;

Provided, however, that, if Contractor is unable to perform in a timely fashion, Purchaser may purchase replacement Goods or obtain substitute Services from another vendor without penalty. Alternatively, Enterprise Services may elect to terminate the Contract (and Purchasers may elect to terminate applicable Purchase Orders). Unless Contractor is excused from performing due to a force majeure event, if Purchaser is required to acquire replacement Goods and substitute Services from another supplier because Contractor is unable to timely perform on the agreed schedule, Contractor shall reimburse Purchaser for all commercially reasonable additional costs and expenses incurred to obtain the replacement Goods and substitute Services.

8.9. ORDER FULFILLMENT AND SUBSTITUTIONS. Contractor is expected to receive and fulfill all orders placed unless Contractor does not have inventory to fulfill such request. Contractor must notify Purchaser at time of order placement if Contractor is unable to provide equipment due to inventory availability and give timeline when order can be completed. However, Contractor may offer a similar product at the same price. Any substitutions must be preapproved in writing between Contractor and Purchaser prior to order placement. If no product is available, Purchaser may use other methods to procure the product(s).

8.10. RESPONSE TIMES.

a) Standard Delivery: Contractor shall deliver equipment to Purchaser’s desired location within

(36) hours of order.

b) Same Business Day/After-Hours Emergency: If Purchaser has a same business day or an after-hour emergency, Contractor shall deliver to, remove from, or service equipment at Purchaser’s desired location within (12) hours.

STATEWIDE CONTRACT NO. 28223 – PORTABLE SANITATION SERVICES 13

c) Weekend or Holiday Emergency: If Purchaser has an emergency on the weekend or a holiday, Contractor shall deliver to, remove from, or service equipment at Purchaser’s desired location within (12) hours.

d) Administrative Concerns: If Purchaser has administrative concerns during the performance of this Contract, Contractor must respond to the agency within (24) hours from notice of the concern.

e) Notice of Deficiency: If a deficiency is discovered by the Purchaser, Contractor shall correct the deficiency within (24) hours from the time they were notified of the deficiency.

8.11. IDENTIFICATION. While supplying Goods and/or Services under this Contract, Contractor, its agents, employees, and subcontractors shall have visible company identification. Visible company identification includes but is not limited to: Contractor uniform, I.D. badge, or any visible identifier that easily distinguishes Contractor.

9. INVOICING & PAYMENT.

9.1. CONTRACTOR INVOICE. Contractor shall submit properly itemized invoices to Purchaser’s designated invoicing contact for Goods and/or Services delivered under this Contract. Such invoices shall itemize the following:

(a) Contract No. 28223;

(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;

(d) Date(s) of delivery;

(e) Contractor to itemize each fee as applicable (Rental Fee, Setup Fee, Removal Fee, Service Fee, Hourly Transportation Fee, and Utility Hook-up fee)

(f) Vehicle Mileage Fee must include the total mileage along with the mileage fee, if applicable.

(g) Damage Fee, Total Loss Replacement Fee, and any additional fees, if applicable, shall be described along with associated cost.

(h) Total Invoice amount; and

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

Contractor’s invoices for payment shall reflect accurate Contract 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 Goods and/or Services. Unless Contractor has provided a prompt payment discount set forth in Exhibit B – Prices for Goods/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

STATEWIDE CONTRACT NO. 28223 – PORTABLE SANITATION SERVICES 14

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 Goods and/or Services furnished by Contractor pursuant to this Contract.

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.

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 Contract. Enterprise Services’ contract administrator shall provide Contract oversight.

Contractor’s contract administrator shall be Contractor’s principal contact for business activities under this Contract. 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: Kathy Paterson Washington Dept. of Enterprise Services PO Box 41411 Olympia, WA 98504-1411 Tel: (360) 407-2213 Email:

DESContractsTeamFir@des.wa.gov

Attn: Ross Dorn Salish Sea Marine LLC dba Royal Restrooms of Washington 26828 Maple Valley-Black Diamond Rd SE #282 Maple Valley, WA 98038 Tel: (206) 372-0777 Email: rdorn@royalrestroomswa.com

STATEWIDE CONTRACT NO. 28223 – PORTABLE SANITATION SERVICES 15

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 Contract.

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: Ross Dorn Salish Sea Marine LLC dba Royal Restrooms of Washington 2628 Maple Valley-Black-Diamond Rd. SE #282 Maple Valley, WA 98038 Email: rdorn@royalrestroomswa.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.

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

11.1. CONTRACT SALES REPORTING. Contractor shall report total Contract sales quarterly 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.

STATEWIDE CONTRACT NO. 28223 – PORTABLE SANITATION SERVICES 16

(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).

(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) Damage charges or damage waiver fees are not considered to be Contract sales and are not subject to VMF.

(d) 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.

(e) 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…