23423c.Ennis.pdf

STATEWIDE CONTRACT

NO. 23423

FOR

WATERBORNE/WATER-BASED TRAFFIC MARKING PAINT

Categories: 1, 2, 3, 4, 5, & 6

For Use by Eligible Purchasers

By and Between

STATE OF WASHINGTON

DEPARTMENT OF ENTERPRISE SERVICES

and

ENNIS-FLINT, INC

Dated April 23, 2024

STATEWIDE CONTRACT NO. 23423– WATERBORNE TRAFFIC MARKING PAINT

(Rev. 2022-11-16)

STATEWIDE CONTRACT

NO. 23423

WATERBORNE/WATER-BASED TRAFFIC MARKING PAINT

CATEGORIES: 1, 2, 3, 4, 5, & 6

This Washington Statewide 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 Ennis-Flint, Inc., a North Carolina (“Contractor”) and is dated and effective as of April 23, 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. The Washington State Department of Transportation and other eligible purchasers (e.g., political subdivisions) have continuing operational needs to purchase and utilize certain specified types and volumes of low VOC waterborne/water-based traffic marking paints (collectively “Traffic Marking Paint”) for roadway and zone marking application to help depict navigational guidelines and directions. Accordingly, Enterprise Services, on behalf of the State of Washington, issued Competitive Solicitation No. 23423 dated January 16, 2024 to solicit bids to evaluate and award Contracts, by specified contract category, to provide a cost-effective and efficient enterprise procurement solution for Washington state agencies and other specified eligible purchasers to purchase Traffic Marking Paint using the terms and conditions of this Contract.

C. Enterprise Services evaluated all responses to the Competitive Solicitation and identified Contractor as the apparent successful bidder for the above-referenced contract categories.

D. 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.

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

A G R E E M E N T

NOW THEREFORE, in consideration of the mutual promises, covenants, and conditions set forth herein, the parties hereto hereby agree as follows:

1. TERM. The term of this Contract is twenty-four (24) months, beginning April 23, 2024 and ending April 23, 2026; Provided, however, that if Contractor is not in default and if, by September 30, 2025, in

(Rev. 2022-11-16)

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 the maximum term date of March 31, 2029. 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

Container Labeling:

Contractor properly meets the container labelling requirements for no less than 90% of the delivered containers over the Contract term to date.

Quality Check:

No less than 80% of the paint totes delivered by Contractor over the Contract term to date are delivered without issue and do not require an exchange.

Exchange and Resolution

Commitment:

Contractor has met their specified exchange timeframe of 5 days with a 70% rate over the Contract term to date.

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 shall not be eligible for a performance-based extension.

Contract Sales Reports:

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

Note: Contractor must provide the quarterly sales reports to Enterprise Services within thirty (30) calendar days of the quarter’s end. If Contractor is delinquent in providing the quarterly sales reports for three (3) or more quarters within the first nine (9) quarters of the Contract term, Contractor 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”):

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

(Rev. 2022-11-16)

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

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

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

Evergreen State College;

Community colleges; and

Technical colleges.

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

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

Federal governmental agencies or entities;

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

Federally recognized Indian Tribes located in the State of Washington.

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

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

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

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

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

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

3.3. ECONOMIC ADJUSTMENT. Beginning twelve (12) months after the effective date of this Contract and for every annual anniversary thereafter, the prices set forth in Exhibit B – Prices for

(Rev. 2022-11-16)

Goods/Services shall be adjusted, based upon the percent changes (whether up or down) in the United States Department of Labor, Bureau of Labor and Statistics (BLS) indices described below, for the most recent year. Economic adjustment shall lag one (1) calendar quarter past the Contract commencement date to allow for publication of BLS data. All calculations for the index shall be based upon the latest version of data published as of October each year.

Prices shall be adjusted on November. If an index is recoded (i.e., the recoded index is a direct substitute for the prior index according to the BLS), this Contract shall use the recoded index, as applicable. If an index becomes unavailable, Enterprise Services shall substitute a proxy index. If there is not a direct substitute, the next higher aggregate index available will be used. The economic adjustment shall be calculated as follows:

New Price = Old Price x (Current Period Index/Base Period Index).

DESCRIPTION PPI COST BREAKDOWN

Special purpose coatings, including all marine coatings and traffic marking paints

PCU32551032551072 90%

Truck Transportation PCU484---484--- 10%

Total 100%

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 economic or other 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; (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.

(Rev. 2022-11-16)

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.

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. 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.

4.9. 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.

4.10. 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.

(Rev. 2022-11-16)

4.11. 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.

4.12. CONTRACT PROMOTION; ADVERTISING AND ENDORSEMENT. Contractor represents and warrants that Contractor shall use commercially reasonable efforts both to promote and market the use of this Contract with eligible Purchasers and to ensure that those entities that utilize this Contract are eligible Purchasers. Contractor understands and acknowledges that neither Enterprise Services nor Purchasers are endorsing Contractor’s Goods and/or Services or suggesting that such Goods and/or Services are the best or only solution to their needs.

Accordingly, Contractor further represents and warrants that Contractor shall make no reference to Enterprise Services, any Purchaser, or the State of Washington in any promotional material without the prior written consent of Enterprise Services.

4.13. 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.

4.14. 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.

4.15. 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.

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

4.17. STATUTORY PREFERENCE FOR PCB-FREE PRODUCTS AND PRODUCTS-IN-PACKAGING. Contractor represents and warrants, as previously certified in Contractor’s Bidder’s Certification, that Contractor qualifies for the Statutory Preference for PCB-Free Products and Products-In- Packaging.

(Rev. 2022-11-16)

5. QUALITY; WARRANTY; REMEDIES.

5.1. GOODS WARRANTY. Contractor warrants that, for a period of thirteen (13) months from the date when the Goods are put into use, or eighteen (18) months after delivery of the Goods, whichever is later (“Goods Warranty Period”), the Goods: (a) are free from defects in design, material, and workmanship; (b) are fit and safe for the intended purposes and appropriate for the specified application(s) (if any); (c) are consistent with recognized industry quality standards; (d) comply with the requirements, specifications, drawings, standards, and descriptions included in this Contract; and (e) are produced and delivered in full compliance with applicable law (“Goods Warranty”). Contractor further warrants that it has good and marketable title to the Goods and shall keep Purchaser’s property free of liens. If Purchaser receives notice of a lien caused by Contractor, Purchaser may withhold any payment otherwise due Contractor until Contractor submits proof, in a form satisfactory to Purchaser, that all lienable claims have been fully paid or waived.

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

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

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

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

(Rev. 2022-11-16)

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

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

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

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

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

Contractor agrees to cooperate and assist Purchaser in any investigation of incidents.

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

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).

(Rev. 2022-11-16)

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

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

8. USING THE CONTRACT – PURCHASES.

8.1. ORDERING REQUIREMENTS. Eligible Purchasers shall order Goods and/or Services from this Contract, consistent with the terms hereof and by using any ordering mechanism agreeable both to Contractor and Purchaser but including, at a minimum, a purchase order. When practicable, Contractor and Purchaser also shall use telephone orders, email orders, web-based orders, and similar procurement methods (collectively “Purchaser Order”). All Purchase Orders must reference the Contract number. The terms of this Contract shall apply to any Purchase Order and, in the event of any conflict, the terms of this Contract shall prevail.

Notwithstanding any provision to the contrary, in no event shall any ‘click-agreement,’ software or web-based application terms and conditions, or any other agreement modify the terms and conditions of this Contract.

8.2. TRAINING REQUIREMENTS. Contractor shall provide technical assistance and training in the use of their product to achieve application compliance to stated standards. Contractor shall use product (M)SDS and application information as a part of the training for Purchasers.

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

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

(b) Delivery shall not be contingent on the return of totes for recycling and repurposing. Totes must be picked up by the Contractor in a timely manner, the cost of return is included in the delivered purchase price set forth in Exhibit B – Prices for Goods/Services. Contractor is required to collect all remaining paint containers within thirty (30) calendar days after notice from Purchaser. Unless otherwise agreed, the pickup location will be the same location as the delivery location.

(c) Delivery timetable:

i. Contractor shall deliver totes within 10 calendar days of Purchase

Order receipt.

ii. Contractor shall deliver 5-55 gallon containers within 10 calendar days for delivery based on date purchase order or other purchasing mechanism is received.

(Rev. 2022-11-16)

(d) Load sizes

i. Truckload deliveries shall be defined as a minimum of 3,000 gallons.

ii. Less than truckload deliveries shall be defined as under 3,000 gallons.

Contractor shall to the extent possible combine less than truckload Purchase Order quantities to maximize the truckload delivery prices.

(e) Contractor shall ship all Goods and/or Services purchased pursuant to this Contract, freight charges prepaid by Contractor, FOB Purchaser’s specified destination with all transportation and handling charges included.

Contractor shall bear all risk of loss, damage, or destruction of the Goods and/or Services ordered hereunder that occurs prior to delivery, except loss or damage attributable to Purchaser’s fault or negligence. Contractor may add a drop fee of $50.00 as a separate line item for second and subsequent drops per individual Purchaser’s Purchase Order.

(f) Contractor shall furnish, free of charge, any lifting tools, chains, hooks, etc.

necessary to load and unload trucks in the event the tote loading cannot be satisfactorily accomplished with State equipment. Totes that do not conform to the specification must be removed within 30 days, at no additional charge, regardless of the number of totes being removed

(g) Contractor offering a tote other than specified previously may designate a minimum order quantity for delivery and pickup of containers.

(h) There shall be no deposits required on any delivery container described herein. However, the Purchaser will be responsible for damages to totes after acceptance of the shipment (signed bill of lading).

(i) Contractor shall include the following information on a packing slip with each delivery:

i. Manufacturer;

ii. Destination;

iii. Color and Type of paint;

iv. Batch number;

v. Average weight and viscosity per gallon;

vi. Total gallons of paint delivered; and

vii. Number of bulk containers delivered.

(j) Contractor shall provide a certified weight ticket showing:

i. The specific container identification number;

ii. Tare weight;

iii. Loaded weight; and

iv. Quantity of paint contained in each container.

Random weighing of containers may be conducted by Purchaser to ensure compliance with Purchase Orders.

(k) Each container shall have a transparent, durable pouch/weather-proof label attached to the outside face of the container. The pouch shall be color coded to indicate color of paint inside the container. The pouch shall hold an information sheet with the following information:

(Rev. 2022-11-16)

i. Manufacturer;

ii. Paint Formula Number;

iii. Paint Color;

iv. Batch Number;

v. Weight per Gallon;

vi. Viscosity of the paint; and

vii. Dates showing paints/coatings not beyond expiration dates.

8.4. CONTAINER REQUIREMENTS

(a) Totes shall conform to Title 49 of the Code of Federal Regulations.

(b) Totes shall be new or reconditioned.

(c) Tote shall have outside dimensions not to exceed 48”.

(d) Shall be stackable a minimum of two high when completely filled with paint.

(e) Shall have either a hinged or bolted hatch and/or screw top.

(f) Containers with bolt down hatches shall have an additional screw top opening located on top.

(g) Shall have a 2-inch ball valve fitted with a male quick disconnect.

(h) The valves shall be 100% compatible with waterborne paint.

(i) No galvanized, copper, chrome or brass valves are allowed.

(j) No portion of the valve, including the in-place cap assembly, shall extend beyond the vertical plane of the tote sidewalls.

(k) Valves and quick disconnects shall be clean with no paint or skins remaining.

(l) Totes shall have a security feature that protects the valve from being opened by accident or by vandals. Bidder shall provide the customer the appropriate device to operate the safety feature at no additional charge.

(m) Totes shall be plainly labeled with the type, color, batch number, date of manufacture, tare weight of empty container, and quality of paint contained.

(n) Totes shall be 100% compatible with waterborne paint.

(o) Tote shall allow proper venting either by a vacuum relief valve or having an access port that can be opened without causing the paint to come in direct contact with air.

(p) Tote shall be UN/DOT certified for shipping and handling of bulk liquids with a maximum of 1.9 specific gravity as required by (CFR) Title 49.

(q) Tote shall be constructed such that the bottom is sloped toward the bottom fitting for optimal drainage. (slope ratio 1/2" to 1" from back of tote to valve)

(r) Drums and Pails shall have securely attached lids.

(s) Drums and Pails shall be lined in such a manner as to prohibit any direct contact of the paint to air or metal.

(t) The drum shall have a 2-inch screw top opening and a vent opening.

https://www.ecfr.gov/current/title-49/subtitle-B/chapter-I/subchapter-C/part-172/subpart-D/section-172.301

(Rev. 2022-11-16)

8.5. RECEIPT AND INSPECTION OF GOODS AND/OR SERVICES.

(a) Goods and/or Services purchased under this Contract are subject to Purchaser’s reasonable inspection, testing, 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 shall 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.

(b) Upon delivery and/or during use, totes will be inspected and subject to rejection if:

i. Valve assembly appears dirty or plugged;

ii. Valve will not open or does not release paint from the tote;

iii. Relief valve or top hatches will not open to allow paint to flow freely and prevent implosion of tote;

iv. Paint is dripping from loose or broken fittings; or

v. SDS is present with the shipment.

9. QUALITY CONTROL REQUIREMENTS. Contractor shall maintain a viable Quality Control Program that ensures that the paint supplied conforms to the Contract specifications. At a minimum, the program must include: (a) Routine verification of the type, quality, and purity of raw materials; (b) Sampling, testing, and record keeping on all batches produced; (c) A procedure for valve and tote checks for all reusable totes that are repurposed; and (d) A procedure to administer flow checks prior to shipping totes with valves to ensure no air bubbles or clogged totes. Quality control test run on each batch shall be sufficient to ensure that the paint meets specifications. All paint batches shall have a unique number assigned to them, which shall be used to correlate control test results and identify individual containers. Contractor shall allow Enterprise Services full access to all quality control process and records pertaining to the paints procured for this Contract.

10. INVOICING & PAYMENT.

10.1. 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. 23423;

(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) Applicable Goods and/or Services;

(Rev. 2022-11-16)

(f) Invoice amount; and

(g) 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.

10.2. PAYMENT. Payment is the sole responsibility of, and shall 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 percent (1%) per month on the amount overdue or a minimum of $1. Payment shall not be considered late if a check or warrant is mailed within the time specified.

10.3. 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.

10.4. 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.

10.5. 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.

10.6. 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.

11. CONTRACT MANAGEMENT.

11.1. 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.

(Rev. 2022-11-16)

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 Contracts Team Cedar Washington Dept. of Enterprise Services PO Box 41411 Olympia, WA 98504-1411 Tel: (360) 470-1500 Email:

DESContractsTeamCedar@des.wa.gov

Attn: Sonji Mock Ennis-Flint, Inc 4161 piedmont Parkway, Ste. 370 Greensboro, NC 27410 Tel: (800)331-8118 Email: smock@ppg.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.

11.2. 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.

11.3. LEGAL NOTICES. Any legal 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: Legal Services Manager Washington Dept. of Enterprise Services PO Box 41411 Olympia, WA 98504-1411 Email: greg.tolbert@des.wa.gov

Attn: Sonji Mock Ennis-Flint, Inc 4161 Piedmont Parkway, Ste. 370 Greensboro, NC 27410 Email: smock@ppg.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.

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

12.1. 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 shall 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 mailto:DESContractsTeamCedar@des.wa.gov mailto:smock@ppg.com mailto:greg.tolbert@des.wa.gov mailto:smock@ppg.com

(Rev. 2022-11-16) 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

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

12.2. 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) Enterprise Services shall 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.

(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, shall be cause for Enterprise Services, at its discretion 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.

(Rev. 2022-11-16)

(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.

12.3. ANNUAL CONTRACT SALES REPORT. Contractor shall provide to Enterprise Services a detailed annual Contract sales report. Such report shall include, at a minimum, the following:

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.

13. RECORDS RETENTION & AUDITS.

13.1. RECORDS RETENTION. Contractor shall maintain books, records, documents, and other evidence pertaining to this Contract 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 Contract or final payment for any order placed by a Purchaser against this Contract, 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.

13.2. 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 Contract or Purchase Orders placed by a Purchaser under this Contract 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 Contract or final payment for any order placed by a Purchaser against this Contract, 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.

13.3. 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 Contract 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

(Rev. 2022-11-16) 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.

14. INSURANCE.

14.1. 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 Goods and/or Services and no additional payment shall be made to Contractor.

14.2. 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 Contract. This provision does not waive any of the Washington State Department of Labor and Industries (L&I) rights to collect from Contractor.