Att A_Sample Price Agreement_Final_DOJ Approved~1.pdf

DAS Procurement Services, Version 2.0 – June 3, 2021 Page 1 of 37

ATTACHMENT A

SAMPLE PRICE AGREEMENT

STATE OF OREGON

PRICE AGREEMENT [PA NUMBER]

FOR

USDA CHILD NUTRITION PROGRAM FOOD DISTRIBUTION

AGREEMENT

BETWEEN

THE DEPARTMENT OF ADMINISTRATIVE SERVICES, STATE

PROCUREMENT SERVICES (“DAS SPS”), ON BEHALF OF THE OREGON

DEPARTMENT OF EDUCATION (“ODE”)

Price Agreement Contract Administrator: Jordan Sim, State Procurement Analyst 375 Ferry Street SE Salem, OR 97301 971-375-5451 jordan.r.sim@das.oregon.gov

AND

[CONTRACTOR NAME]

Contract Administrator: [Name, Title] Address: [Street Address] Phone: [Phone] Email: [Email]

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TABLE OF CONTENTS

SECTION 1: AGREEMENT

1.1 PARTIES

1.2 DEFINITIONS

1.3 TERM OF AGREEMENT

1.4 TERMINATION OF AGREEMENT

1.5 ORDERING INSTRUMENTS

1.6 PRICES

1.7 INSURANCE

1.8 MISCELLANEOUS

SECTION 2: STANDARD TERMS FOR CONTRACTS UNDER THIS AGREEMENT

2.1 CONTRACT DOCUMENTS; ORDER OF PRECEDENCE

2.2 PAYMENT

2.3 OVERDUE CHARGES

2.4 PAYMENT ADDRESS

2.5 INVOICES

2.6 PRICES

2.7 CANCELLATION, INSPECTIONS AND ACCEPTANCE

2.8 REPRESENTATIONS AND WARRANTIES

2.9 COMPLIANCE WITH APPLICABLE LAWS AND STANDARDS

2.10 FOREIGN CONTRACTOR

2.11 SAFETY DATA SHEET

2.12 TIME IS OF THE ESSENCE

2.13 FORCE MAJEURE

2.14 FUNDS AVAILABLE AND AUTHORIZED

2.15 INDEPENDENT CONTRACTOR STATUS; RESPONSIBILITY FOR TAXES AND WITHHOLDING

2.16 INDEMNIFICATION

2.17 EVENTS OF DEFAULT

2.18 REMEDIES

2.19 TERMINATION

2.20 ACCESS TO RECORDS

2.21 NOTICES

2.22 ORDERING ACKNOWLEDGEMENTS

2.23 GOVERNING LAW

2.24 VENUE; CONSENT TO JURISDICTION

2.25 SURVIVAL

2.26 SEVERABILITY

2.27 ASSIGNMENTS, SUBCONTRACTS, AND SUCCESSORS

2.28 MERGER CLAUSE; AMENDMENT; WAIVER

2.29 ASSIGNMENT OF ANTITRUST RIGHTS

SECTION 3: SPECIAL TERMS FOR CONTRACTS UNDER THIS AGREEMENT

SECTION 4: SIGNATURE OF CONTRACTOR’S DULY AUTHORIZED REPRESENTATIVE

SECTION 5: SIGNATURE OF AGENCY

LIST OF EXHIBITS

EXHIBIT A: DESCRIPTION OF THE GOODS AND PRICES

EXHIBIT B: PURCHASE ORDER FORM

EXHIBIT C: INSURANCE REQUIREMENTS

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EXHIBIT D: INDEPENDENT CONTRACTOR CERTIFICATION

EXHIBIT E: CERTIFICATION REGARDING FEDERAL MATTERS

EXHIBIT F: CIVIL RIGHTS ASSURANCE FOR VENDOR CONTRACTS

EXHIBIT G: SUSPENSION AND DEBARMENT CERTIFICATION

EXHIBIT H: CERTIFICATION REGARDING LOBBYING

EXHIBIT I: BUY AMERICAN

EXHIBIT J: WAIVER REQUEST FOR FOREIGN FOOD PRODUCTS

EXHIBIT K: CLEAN AIR AND WATER CERTIFICATE

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This Price Agreement (“Agreement’) is between the State of Oregon, acting by and through its Department of Administrative Services (DAS SPS), on behalf of the Oregon Department of Education (“Agency”) and [insert Contractor’s name], a [insert state of incorporation] (“Contractor”).

AGREEMENT

1.1 PARTIES

1.1.1. The only parties to this Agreement are Agency and Contractor.

1.1.2. Recipient Agencies (“RA”) may purchase goods and related services specified in Exhibit A (“Goods”) by issuing ordering instruments that create and become part of separate contracts (“Contracts”). The only parties to Contracts created by ordering instruments are the applicable RA and Contractor.

1.1.3. As used in this Agreement, “Recipient Agency” or “RA” means: the State Agency or ORCPP participant that has the ability to submit a Purchase Order to Contractor for purchase of Goods.

1.2 DEFINITIONS

“Agreement” or "Price Agreement" means this agreement between Contractor and Agency under which Contractor agrees to hold prices, terms and conditions firm for a specified period of time for the benefit of Agency.

“Business Day” means Monday through Friday, 8:00 a.m. to 5:00 p.m., Pacific Time, excluding State of Oregon holidays and business closure days.

“Calendar Day” means contiguous days.

"Contract" means the entire agreement between Contractor and Agency or RA, comprised of a signed Purchase Order and this Price Agreement, including any exhibits and amendments.

"Goods" means the individual items described in Exhibit A.

“Protected Class” means a group of persons distinguished by race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability or age.

"Purchase Order" means the ordering instrument between RA and Contractor substantially in the form attached as Exhibit B. "Services" means the services, if any, described in Exhibit A to be performed by Contractor under a Contract that are incidental to the purchase of Goods.

"Specifications" and “characteristics” means the specific attributes of the Goods to be purchased or Services to be provided, if any, as described in Exhibit A.

"State" means the State of Oregon.

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1.3 TERM OF AGREEMENT

The initial term of this Agreement begins on the date this Agreement has been signed by Agency and Contractor and all required approvals have been obtained (the “Effective Date”) and ends on MM/DD/YYYY unless sooner terminated or extended as provided in this Agreement. Agency has the option to extend this Agreement in 1 year terms. The maximum life of this Agreement is 5 years. Agency must send Contractor a written notice exercising its option to extend no later than 60 Calendar Days before the expiration of the then-current term. The initial term and all extension terms are collectively referred to as the “Term” of this Agreement.

1.4 TERMINATION OF AGREEMENT

1.4.1 Parties’ Right to Terminate by Mutual Consent. This Agreement may be terminated at any time by mutual written consent of Agency and Contractor.

1.4.2 Agency Right to Terminate for Convenience. Agency may, in its sole discretion, terminate this Agreement, in whole or in part, for any reason upon 30 Calendar Days written notice to Contractor.

1.4.3 Effect of Termination.

1.4.3.1 Once this Agreement is terminated, Contractor shall not accept new Contracts or Purchase Orders.

1.4.3.2 Termination of this Agreement does not terminate the rights or obligations of any party to a Contract executed before termination of this Agreement.

1.4.3.3 Termination of this Agreement terminates Contracts or “blanket” Purchase Orders in which Contractor is not legally required to deliver specific quantities of Goods at specific times.

1.5 ORDERING INSTRUMENTS

1.5.1 A Contract created by an ordering instrument consists only of the terms specified or required by this Agreement. Additional, different or conflicting terms and conditions in any Purchase Order(s) or any other ordering instrument of either an Agency or the Contractor shall not vary the terms of this Agreement. Unless otherwise expressly agreed, Contractor’s online ordering terms and conditions will not change the terms and conditions of this Agreement or any Contract.

1.5.2 Subject to the provisions of this Agreement, Contractor shall accept ordering instruments from RA that comply with the provisions of this Agreement until this Agreement terminates. Contractor may, but is not required to, accept an ordering instrument requesting a delivery schedule less than any minimum lead time, if any, specified in Exhibit A.

1.5.3 An ordering instrument is deemed accepted by Contractor unless Contractor rejects an ordering instrument within 3 Business Day after it is received. Contractor may reject an ordering instrument: i) using the same means as were used to deliver the

DAS Procurement Services, Version 2.0 – June 3, 2021 Page 6 of 37 ordering instrument, or ii) by e-mail or facsimile if that information is evident on the ordering instrument. Contractor shall specify the reason(s) for rejection.

1.5.4 Accepted ordering instruments establish separate Contracts between RA and Contractor and include the terms set forth in Sections 2 and 3. As used in the Contracts, “Price Agreement” means this Agreement.

1.5.5 Nothing in this Agreement obligates any Agency or RA to place any ordering instrument.

1.5.6 Contractor shall reject an ordering instrument that does not meet the requirements of this Agreement.

1.6 PRICES

1.6.1 Except as provided in this Section, during the Term of this Agreement, Contractor shall offer Goods and related Services to RA at prices that do not exceed the prices listed in Exhibit A.

1.6.2 Contractor and RA may agree to lower prices for Goods and related Services. Those lower prices apply only to applicable Contract between Contractor and RA.

1.6.3 Price Decrease

Agency and all RA’s shall be given the immediate benefit of any price decrease Contractor offers to any other customer. Contractor shall promptly notify Agency of the amount and effective date of each decrease. This decrease applies to orders placed on or after the effective date of the decrease. Invoices must reflect prices in effect on the date RA’s Purchase Order document was written.

Should such decreased prices again increase during the term of the Price Agreement, including extensions, Agency shall honor the increase if acceptable documentation verifying the increase is submitted to Agency. Agency shall determine what constitutes acceptable documentation.

1.6.3.1 Contractor shall subtract from prices charged to Agency any unit price decrease that has been achieved or gained by Contractor, whether through the manufacturer or otherwise. Contractor shall give Agency the immediate benefit of the decrease. Contractor shall promptly notify Contract Administrator of the amount and effective date of the decrease.

1.6.4 Price Adjustment

Subject to the following, either party to this Agreement may request a price adjustment, in whole or in part.

Contractor may request price increases from Agency at time of Contract renewal, no more often than once every12 calendar months, commencing on date of execution. Contractor must submit a request to the Contract Administrator in writing at least 60 Calendar Days before the proposed effective date of the increase. The request must show all proposed

DAS Procurement Services, Version 2.0 – June 3, 2021 Page 7 of 37 increases by line item and include supporting documentation acceptable to Agency. Agency requires Contractor to provide supporting documentation for any price increase exceeding the identified Consumer Price Index (CPI). The CPI to be used will be the CPI-U-All Urban Consumers: US City Average Food Away From Home for the most recent 12 month period reported at time of renewal. However, a price increase may not produce a higher profit margin for Contractor than at the beginning of the initial term of this Agreement. Agency reserves the right to accept or reject any proposed price changes, in the best interest of the Agency.

1.7 INSURANCE

Contractor shall obtain insurance coverage as specified in Exhibit C and shall maintain the insurance throughout the term of this Agreement and all Contracts.

1.8 MISCELLANEOUS

1.8.1 Choice of Law

The laws of the State of Oregon (without giving effect to its conflicts of law principles) govern all matters arising out of or relating to this Agreement, including, without limitation, its validity, interpretation, construction, performance, and enforcement.

1.8.2 Designation of Forum and Consent to Jurisdiction

Any party bringing a legal action or proceeding against any other party arising out of or relating to this Agreement shall bring the legal action or proceeding in the Circuit Court of the State of Oregon for Marion County. Each party hereby consents to the exclusive jurisdiction of such court, waives any objection to venue, and waives any claim that such forum is an inconvenient forum.

1.8.3 Amendments

No amendment to this Agreement is valid unless it is in writing and signed by all necessary parties.

1.8.4 Transfer

Contractor shall not assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without first obtaining the written consent of Agency. Agency’s consent to any subcontract (or other delegation of duties) does not relieve Contractor of any of its duties or obligations under this Agreement. This Agreement is binding upon and inures to the benefit of each of the parties, and, except as otherwise provided, their permitted legal successors and assigns.

1.8.5 Counterparts

This Agreement may be executed in two or more counterparts, each of which is an original, and all of which together are deemed one and the same instrument, notwithstanding that all parties are not signatories to the same counterpart.

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1.8.6 Force Majeure

Neither party is responsible for delay or default caused by an event beyond the control of the party whose performance is interfered with, and, which by the exercise of reasonable diligence, the party is unable to prevent. Agency may terminate this Agreement upon written notice after determining such delay or default will reasonably prevent successful performance of this Agreement.

In the event of any such delay, Contractor’s obligations are suspended to the extent of and for the duration of such causes. However, Contractor shall take all good faith efforts to eliminate the cause of any such delay, and upon the cessation of such cause, shall resume performance of Contractor’s obligations with all reasonable diligence. If necessary, the period for performance under this Agreement will be extended to enable Contractor, once such causes have been removed, to fulfill its obligations hereunder.

1.8.7 Entire Agreement

This Agreement, together with the attached exhibits, constitutes the entire agreement between the parties and merges all prior and contemporaneous communications with respect to the subject matter.

1.8.8 Notices

Except as otherwise expressly provided in this Agreement, any notices sent between the parties under this Agreement are effective only if in writing and addressed to the Contract Administrators at the addresses set forth on the Cover Page. A party may change its Contract Administrator upon written notice to the other party. The following methods of delivery between the parties may be used: Personal delivery, Email or United States Postal Service (“USPS”) with postage prepaid.

For confirmation of delivery to the recipient, sender guidelines are as follows:

When choosing Personal delivery, parties may consider their communication or notice received immediately. When choosing Email, parties may consider their communication received upon reply to email by the recipient. However, if using email, the use of “read receipt” is not a valid form of delivery confirmation. When choosing to use USPS, parties may consider their communication received five (5) Calendar Days after the date of the mailing.

1.8.9 Intended Beneficiaries

Agency and Contractor are the only parties to this Agreement and are the only parties entitled to enforce its terms. Nothing in this Agreement gives, is intended to give, or will be construed to give or provide, any benefit or right, whether directly, indirectly, or otherwise, to third persons unless such third persons are individually identified by name herein and expressly described as intended beneficiaries of the terms of this Agreement.

1.8.10 Waiver

The failure of Agency to enforce any provision of this Agreement or the waiver of any violation or nonperformance of this Agreement in one instance does not constitute a waiver by Agency of that or any other provision nor is it a waiver of any subsequent violation or

DAS Procurement Services, Version 2.0 – June 3, 2021 Page 9 of 37 nonperformance. Such failure to enforce or waiver, if made, is effective only in the specific instance and for the specific purpose given.

1.8.11 Certification of Compliance with Tax Laws

By signature on this Agreement, Contractor certifies that it has complied with the tax laws of this State and the applicable tax laws of any political subdivision of this State. Contractor shall, throughout the duration of this Agreement and any Contract and any extensions thereof, comply with all tax laws of this State and all applicable tax laws of any political subdivision of this State. For the purposes of this Section, “tax laws” includes: (i) All tax laws of this State, including but not limited to ORS 305.620 and ORS chapters 316, 317, 318 and 319; (ii) Any tax provisions imposed by a political subdivision of this State that apply to Contractor, to Contractor’s property, operations, receipts, or income, or to Contractor’s performance of or compensation for any work performed by Contractor; (iii) Any tax provisions imposed by a political subdivision of this State that apply to Contractor, or to goods, services, or property, whether tangible or intangible, provided by Contractor; and (iv) Any rules, regulations, charter provisions, or ordinances that implemented or enforced any of the foregoing tax laws or provisions.

Any failure to comply with the provisions of this subsection 1.8.11 constitutes a material breach of this Agreement and any Contract. Any failure to comply entitles Agency to terminate this Agreement or Contract, as applicable and to pursue and recover any and all damages that arise from the breach and the termination of this Agreement or Contract, and to pursue any or all of the remedies available under this Agreement or Contract, at law, or in equity, including but not limited to:

• Termination of this Agreement or Contract, as applicable, in whole or in part;

• Exercise of the right of setoff, and withholding of amounts otherwise due and owing to Contractor, in an amount equal to State’s or Agency’s setoff right, without penalty;

and

• Initiation of an action or proceeding for damages, specific performance, declaratory or injunctive relief. Agency or Agency may recover any and all damages suffered as the result of Contractor's breach of this Agreement or Contract, including but not limited to direct, indirect, incidental and consequential damages, costs of cure, and costs incurred in securing replacement Goods or Services.

1.8.12 Contractor shall, to the maximum extent economically feasible in the performance of this Agreement, use recycled products where possible. This includes paper, “PETE” and other materials as defined in ORS 279A.010 [1][gg], [hh] and [ii].

1.8.13 Contractor shall retain, maintain, and keep accessible all records relevant to this Agreement (the “Records”) for a minimum of six (6) years, or such longer period as may be required by applicable law following expiration or termination of the Agreement, or until the conclusion of any audit, controversy or litigation arising out of or related to the Contract, whichever date is later. Financial Records will be kept in accordance with Generally Accepted Accounting Principles (GAAP). During the record-retention period established in this Section, Contractor shall permit Agency and its duly authorized representatives, and the federal government access to the Records at a reasonable time and place for purposes of examination and copying.

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1.8.14 Performance Evaluations

Agency may conduct evaluations of Contractor’s performance during the term of this Agreement. Agency will compile and maintain completed evaluations, which will become a written record of Contractor’s performance. Agency may also maintain as part of that written record information obtained from Contractor during an exit interview following Agreement termination. Agency may provide copies of any documents in the written record to the Contractor and third parties upon request. Agency may use performance evaluations in any way it deems necessary, in its sole discretion, including but not limited to making responsibility determinations and decisions to award contracts.

1.8.15 Reporting

This Agreement and Contract(s) of Agency will be reported to the Oregon Department of Revenue. The Department of Revenue may take any and all actions permitted by law relative to the collection of taxes due to the State of Oregon or a political subdivision, including (i) garnishing Contractor’s compensation under this Agreement or Contract or (ii) exercising a right of setoff against Contractor’s compensation under this Agreement or Contract for any amounts that may be due and unpaid to the State of Oregon or its political subdivisions for which the Department of Revenue collects debts.

1.8.16 Volume Sales Reports

1.8.16.1 Content: Contractor shall furnish to Agency annual reports of sales made under this Price Agreement . The reports shall identify the Price Agreement number and shall provide information in the following specific categories:

• Bid item number

• RA’s name

• RA’s purchase order number or Contract number

• Date ordered

• Quantity of each bid item ordered

• Unit purchase price and extended total price for each bid item ordered

1.8.16.2 Reporting Dates: Volume sales reports are due at the time of each annual Price Agreement renewal.

1.8.16.3 Report Format: Contractor shall provide reports in a format approved by Agency.

Reports submitted via flash drive, CD or by email are preferred; however, hard copy reports are acceptable.

1.8.17 Price Agreement Documents

Order of Precedence: This Price Agreement consists of the following documents, listed in descending order of precedence. The Exhibits are attached and incorporated by this reference.

• This Price Agreement less all exhibits;

• Exhibit A – Description of the Goods and Prices

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• Exhibit B – Purchase Order Form;

• Exhibit C – Insurance Requirements;

• Exhibit D – Independent Contractor Certification Federal requirements:

o Exhibit E – Certification Regarding Federal Matters;

o Exhibit F – Civil Rights Assurance for Vendor Contracts;

o Exhibit G – Suspension and Debarment Certification;

o Exhibit H – Certification Regarding Lobbying;

o Exhibit I – Buy American;

o Exhibit J – Waiver Request for Foreign Food Products;

o Exhibit K – Clean Air and Water Certificate;

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STANDARD TERMS FOR CONTRACTS UNDER THIS

AGREEMENT

2.1 CONTRACT DOCUMENTS; ORDER OF PRECEDENCE

The Contract consists of the ordering instrument and the provisions in Sections 2 and 3 of this Agreement. In the event of a conflict between the ordering instrument and provisions in Sections 2 and 3, the provisions in Sections 2 and 3 take precedence. All references to Agency in this Section 2 of the Agreement apply to the RA in the resulting Contract.

2.2 PAYMENT

Contractor shall look solely to RA for payment of all amounts that may be due under this Contract.

RA IS SOLELY RESPONSIBLE FOR PAYMENT UNDER THIS CONTRACT. Subject to RA’s acceptance of Goods and related Services, payment is due from RA within 45 Calendar Days after the date of the invoice.

2.3 OVERDUE CHARGES

At Contractor’s option, it may assess overdue account charges to RA up to a maximum rate of two-thirds of one percent per month (8% per annum) or the maximum allowed by law.

2.4 PAYMENT ADDRESS

RA must send payments to the address specified in the Contractor’s invoice.

2.5 INVOICES

Contractor shall invoice RA only after delivery of all Goods and related Services ordered.

Contractor shall send all invoices to the address provided by RA for that purpose. Contractor shall include all of the following in its invoice:

• Price Agreement number.

• Ordering instrument number.

• Goods and related Services ordered.

• Date delivered.

• Volume or quantity of Goods delivered and related Services performed.

• The price per item of Goods and related Services.

• The total amount invoiced.

• The address to which payment is to be sent.

2.6 PRICES

Contractor represents all prices for Goods and related Services under the Contract are equal to or better than the prices listed in Exhibit A of the Agreement.

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2.7 CANCELLATION, INSPECTIONS AND ACCEPTANCE

RA may cancel an order in whole or in part before Goods and related Services are delivered or performed. RA has three (3) Calendar Days from date of delivery of the entire order within which to inspect and accept or reject the Goods and related Services. If the Goods and related Services are rejected, RA shall provide Contractor with written notice of rejection. Notice of rejection must include itemization of apparent defects, including but not limited to (i) discrepancies between the Goods and related Services and the applicable specifications or warranties (including variance from demonstrations or sample characteristics where demonstrations or samples have been provided), or (ii) otherwise nonconforming Goods (including late delivery) and related Services.

Notice of rejection must also specify when cure will be allowed.

2.7.1 RA may elect to have Contractor deliver substitute conforming Goods at no additional cost to RA. In such an event, Contractor shall deliver substitute conforming Goods within ten (10) Calendar Days of receipt of notice of rejection.

2.7.2 If the Goods and related Services are rejected or acceptance is revoked, Contractor shall refund any Contract payments that have been made with regard to the rejected Goods and related Services, and shall (at Contractor’s sole cost and expense) remove the Goods within ten (10) Calendar Days of receiving notice of rejection or revocation of acceptance.

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

2.8 REPRESENTATIONS AND WARRANTIES

2.8.1 Officer Status, Insurance

Contractor represents and warrants that it is not an “officer,” “employee,” or “agent” of Agency, as those terms are used in ORS 30.265. Contractor represents and warrants that Contractor has obtained and will maintain during the term of this Contract all insurance required by the Agreement.

2.8.2 Debt Owed

Contractor represents and warrants that it has no undisclosed liquidated and delinquent debt owed to the State or any agency, board, commission, department or division of the State.

2.8.3 Warranty on Service Standards

Contractor warrants that all Services required to be performed, if any, shall be performed in a good and workmanlike manner in accordance with standards prevalent in the industry.

2.8.4 Warranty of Title

Contractor represents and warrants that all Goods are free and clear of any liens or encumbrances, that Contractor has full legal title to the Goods, and that no other person or entity has any right, title or interest in the Goods which is superior to or infringes upon the rights granted to Agency under this Contract.

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2.8.5 Warranty on Safety and Health Requirements

Contractor represents and warrants that Goods provided under this Contract comply with all applicable federal health and safety standards, including but not limited to, Occupational Safety and Health Administration (OSHA), and all Oregon safety and health requirements, including, but not limited to, those of the Oregon Consumer and Business Services Department.

2.8.6 Manufacturer Warranties

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

2.8.7 Warranties are Cumulative

Contractor’s warranties provided in this Section 2.8 are in addition to and not in lieu of any other warranties provided elsewhere in the Contract. All warranties provided for in this Contract are cumulative, will be deemed consistent and not in conflict, are intended to be given full force and effect and to be interpreted expansively to give the broadest warranty protection to Agency.

2.9 COMPLIANCE WITH APPLICABLE LAWS AND STANDARDS

Contractor shall comply with all federal, state and local laws, regulations, and ordinances applicable to this Contract as they may be adopted or amended from time to time. Contractor shall comply with USDA Food Regulation 7 CFR § 250.1(b) that states “Donated foods cannot be sold, exchanged, or used for payment unless approved by FNS and must be used only for authorized purposes.”.

2.9.1 Noncompliant Goods

In the event of a conflict between the specifications in this Contract and applicable federal or State law, the law prevails over the specifications. Contractor shall make any modifications required to achieve compliance with law. When Contractor is notified or becomes aware of any required modifications, Contractor shall immediately notify Agency.

2.9.2 Recalled Goods or Components

In the event any Goods or component parts are recalled by a regulatory body or the manufacturer, or discovered by Contractor not to be in compliance with the applicable specifications or law, Contractor shall immediately notify Agency of the recall or non-compliance, and shall provide copies of the notice or other documentation. Upon notification, Agency may elect to do any of the following:

• Cancel any portion of the ordering instrument.

• Reject the Goods.

• Revoke its acceptance of the Goods.

• Require Contractor to complete necessary modifications, where applicable, in a timely

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• Terminate the Contract.

In the event of rejection or revocation of acceptance under this subsection, Contractor shall promptly remove the Goods at its sole cost and expense and reimburse Agency for any payments made.

2.10 FOREIGN CONTRACTOR

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

2.11 SAFETY DATA SHEET

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

Additionally, Contractor shall deliver EPA labels and SDS information if available and as requested by Agency.

2.12 TIME IS OF THE ESSENCE

Time is of the essence for Contractor’s performance obligations under this Contract.

2.13 FORCE MAJEURE

Neither Agency nor Contractor shall be held responsible for delay or default caused by an event which is beyond the party’s reasonable control. Contractor shall, however, make all reasonable efforts to remove or eliminate such a cause of delay or default and shall, upon the cessation of the cause, diligently pursue performance of its obligations under this Contract. Agency may terminate this Contract upon written notice to Contractor after reasonably determining that such delay or default will likely prevent successful performance of the Contract.

2.14 FUNDS AVAILABLE AND AUTHORIZED

If Agency is an agency of the State of Oregon, payment obligations under this Contract are conditioned upon Agency’s receiving funding, appropriations, limitations, allotments, or other expenditure authority sufficient to allow Agency, in the exercise of its reasonable administrative discretion, to meet its payment obligations under this Contract. At the time the ordering instrument was issued, Agency had sufficient funds available and authorized to make payments under this Contract.

2.15 INDEPENDENT CONTRACTOR STATUS; RESPONSIBILITY FOR TAXES AND WITHHOLDING

2.15.1 Contractor is an independent contractor. Although Agency reserves the right (i) to

DAS Procurement Services, Version 2.0 – June 3, 2021 Page 16 of 37 determine (and modify) the delivery schedule for the Goods and related Services and

(ii) to evaluate the quality of completed performance, Agency cannot and will not control the means or manner of Contractor’s performance. Contractor is responsible for determining the appropriate means and manner of performing any obligations required by this Contract.

2.15.2 Contractor is responsible for all federal and state taxes applicable to compensation or payments paid to Contractor under this Contract and, unless Contractor is subject to backup withholding, Agency will not withhold from such compensation or payments any amount(s) to cover Contractor’s federal or state tax obligations.

Contractor is not eligible for any social security, unemployment insurance or workers’ compensation benefits from compensation or payments paid to Contractor under this Contract, except as a self-employed individual.

2.16 INDEMNIFICATION

2.16.1 Contractor shall defend, save, hold harmless, and indemnify Agency, the State and their officers, employees and agents from and against all third party claims, suits, actions, proceedings, losses, damages, statutory penalties, liabilities, awards and costs of every kind and description (including reasonable attorney’s fees and expenses at trial, on appeal and in connection with any petition for review) (collectively, “Claim”) which may be brought or made against any Agency, the State, or their officers, employees or agents, arising out of or related to (i) any personal injury, death or property damage caused by any defect in the Goods or any alleged act, omission, error, fault, mistake or negligence of Contractor, its employees, agents, related to this Contract, (ii) any act or omission by Contractor that constitutes a material breach of this Contract, including without limitation any breach of warranty, or (iii) the infringement of any patent, copyright, trade secret or other proprietary right of any third party by delivery or use of the Goods. Agency or State shall promptly notify Contractor in writing of any claim of which Agency or State becomes aware. Contractor’s obligation under this section shall not extend to any Claim primarily caused by (i) the negligent or willful misconduct of Agency, or (ii) Agency’s modification of Goods without Contractor’s approval and in a manner inconsistent with the purpose and proper usage of such Goods.

2.16.2 The Oregon Attorney General must give written authorization to any legal counsel purporting to act in the name of, or represent the interests of, the State or its officers, employees and agents prior to such action or representation. Further, the State, acting by and through its Department of Justice, may assume its own defense, including its officers, employees and agents, at any time when, in the State’s sole discretion, it determines (i) proposed counsel is prohibited from the particular representation contemplated; (ii) Counsel is not adequately defending or able to defend the interests of the State, its officers, employees or agents; (iii) important governmental interests are at stake; or (iv) the best interests of the State are served thereby. Contractor’s obligation to pay for all costs and expenses shall include those incurred by the State in assuming its own defense and its officers, employees, or agents under (i) and (ii) above.

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2.17 EVENTS OF DEFAULT

2.17.1 By Contractor

Contractor will be in default of the provisions of a Contract if:

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

• Contractor has undisclosed liquidated and delinquent debt owed to the State or any agency, board, commission, department or division of the State; or

• Contractor no longer holds a license or certificate that is required for Contractor to perform Contractor’s obligations under this Contract; or

• Contractor fails to comply with its obligations in Section 2.27, Prompt Payment, and has not cured the non-performance within thirty (30) Calendar Days of Agency’s written notice to cure.

• Contractor violates any provision, covenant, warranty, obligation or certification or fails to perform under this Contract, provided however that Contractor may cure the default within the period specified in Agency’s notice of default when Agency determines the default is curable by Contractor.

2.17.2 By Agency

Agency will be in default of a Contract if:

• Agency fails to pay Contractor any amount pursuant to the terms of this Contract, and Agency fails to cure such failure within ten (10) Business Days after delivery of Contractor’s notice or such longer period as Contractor may specify in such notice; or

• Agency violates any provision, covenant, warranty, or obligation or fails to perform under this Contract and such breach is not cured within ten (10) Business Days after delivery of Contractor’s notice of breach or such longer period as Contractor may specify in such notice.

2.18 REMEDIES

2.18.1 Agency’s Remedies

If Contractor is in default under Section 2.17.1, in addition to the remedies afforded elsewhere in this Contract, Agency may recover any and all damages suffered as the result of Contractor’s breach, including but not limited to direct, indirect, incidental and consequential damages, as provided in ORS 72.7110 to 72.7170. Agency may, at its option, pursue any or all of the remedies available to it under this Contract and at law or in equity, including, but not limited to:

• Stop Work or Suspend delivery of Goods or performance of related Services as provided in Section 2.19.2; or

• Termination of the Contract as provided in Section 2.19.1 or 2.19.2; or

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

• Initiation of an action or proceeding for damages, specific performance, declaratory or injunctive relief including, but not limited to, temporary suspension of work or permanent work stoppage until such relief has been restored to the satisfaction of the Agency; or

• Undertaking collection by administrative offset, or garnishment if applicable, of all monies due for Good to recover liquidated and delinquent debt owed to the State or any department or agency of the State. Offsets or garnishment may be initiated only after the Contractor has been given: i) written notice of the type and amount of the debt, the intention of the State to use administrative offset or garnishment to collect the debt, and an explanation of the debtor's rights under applicable law; and ii) the opportunity to make a written agreement to repay the debt; or

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

• Withholding of Amounts Due Subcontractors. If Contractor does not satisfy its prompt payment obligations to a subcontractor within thirty (30) Calendar Days after receiving written notice from Agency of Contractor’s failure to perform its prompt payment obligations, Agency may withhold, from any amounts otherwise payable and due to Contractor, an amount equal to 10 percent of an amount not paid to a subcontractor in accordance with Contractor’s prompt payment obligations, plus interest at 9% per annum.

• Agency may pay, from the withheld amounts, amount due to the subcontractor plus interest. An Agency payment under this section is a deduction from Agency’s payment obligation to Contractor under this Contract/Price Agreement, and Contractor will have no claim against Agency for any amounts paid to its subcontractor under this section.

This subsection imposes no obligation on Agency to withhold any sums, or to pay any sums to any subcontractor, and creates no third-party beneficiary status or right to enforce on the part of any subcontractor.

Agency may pursue any remedy or remedies singly, collectively, successively or in any order whatsoever.

2.18.2 Contractor’s Remedies

If Agency terminates a Contract, or if Agency is in default under Section 2.17.2 and whether or not Contractor elects to exercise its right to terminate this Contract under Section 2.19.3, Contractor’s sole remedy is: (a) A claim against Agency for the unpaid purchase price for Goods delivered and related Services performed and accepted by Agency, (b) with respect to Services compensable on an hourly basis, a claim for unpaid invoices, hours worked but not yet billed and authorized expenses for services completed and accepted by Agency, and (c) with respect to deliverable-based Services, a claim for the sum designated for completing the deliverable multiplied by the percentage of Services completed and accepted by Agency, less previous amounts paid and any claim(s) which Agency has against Contractor. If previous

DAS Procurement Services, Version 2.0 – June 3, 2021 Page 19 of 37 amounts paid to Contractor exceed the amount due to Contractor under this Section, Contractor shall pay any excess to Agency immediately upon written demand.

2.19 TERMINATION AND STOP WORK

2.19.1 By Mutual Agreement

A Contract may be terminated at any time by mutual agreement of Agency and Contractor.

2.19.2 Rights of Agency

• Agency may, in its sole discretion, send Contractor a notice to stop work or to suspend delivery of Goods or performance of related Services for a period of up to ninety (90) Calendar Days after the date of the notice, or for any further period to which the parties may agree.

Upon receipt of the notice, Contractor shall immediately comply with the Stop-Work Order terms and take all necessary steps to minimize the incurrence of costs allocable to the work affected by the Stop Work Order notice. Within a period of ninety (90) Calendar Days after issuance of the written notice, or within any extension of that period to which the parties have agreed, Agency will either cancel or modify the Stop Work Order by a supplementary written notice and amend the Contract; or terminate the work the Contract.

• Agency may, in its sole discretion, terminate a Contract for convenience upon thirty

(30) Calendar Days prior written notice.

• Agency may terminate a Contract immediately upon notice to Contractor, or at such later date as Agency may establish in such notice, upon the occurrence of any of the following events: (a) Agency fails to receive funding, appropriations, limitations, allotments, or other expenditure authority sufficient to allow Agency, in the exercise of its reasonable administrative discretion, to meet its payment obligations under a Contract; (b) federal or state laws, regulations, or guidelines are modified or interpreted in such a way that either the purchase of the Goods by Agency under the Agreement is prohibited, or Agency is prohibited from paying for such Goods from the planned funding sources; or (c) Contractor is in default of the Contract under Section

2.17.1 and has failed to cure the default. Upon receipt of written notice of termination, Contractor shall stop performance under the Contract if, and as, directed by Agency.

2.19.3 Rights of the Contractor

Contractor may terminate a Contract upon thirty (30) Calendar Days prior written notice to the Agency, if Agency is in default of a Contract as described in Section 2.17.2.

2.20 ACCESS TO RECORDS

Contractor shall retain, maintain, and keep accessible all records relevant to this Contract (the “Records”) for a minimum of six (6) years, or such longer period as may be required by applicable law following expiration or termination of the Contract, or until the conclusion of any audit, controversy or litigation arising out of or related to the Contract, whichever date is later. Financial Records will be kept in accordance with Generally Accepted Accounting Principles (GAAP).

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

2.21 NOTICES

Except as otherwise expressly provided in this Contract, any notices sent between Agency and Contractor are effective only if in writing and addressed to the assigned Authorized Representatives of both parties as designated in the Contract. A party may change its Authorized Representative upon written notice to the other party. The following methods of delivery may be used: Personal delivery, Email or United States Postal Service (“USPS”) with postage prepaid. For confirmation of delivery to the recipient, sender guidelines are as follows:

When choosing Personal delivery, parties may consider their communication or notice received immediately. When choosing Email, parties may consider their communication received upon reply to email by the recipient. However, if using email, the use of “read receipt” is not a valid form of delivery confirmation. When parties choose to use USPS, parties may consider their communication received five (5) Calendar Days after the date of the mailing.

2.22 ORDERING ACKNOWLEDGEMENTS

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

2.23 GOVERNING LAW

This Contract is governed by and construed in accordance with the laws of the State of Oregon, without regard to principles of conflicts of laws.

2.24 VENUE; CONSENT TO JURISDICTION

Any Claims between Agency and Contractor arising from or relates to this Contract shall be brought and conducted solely and exclusively within the Circuit Court of Marion County for the State of Oregon; provided, however, if a Claim must be brought in a federal forum, then unless otherwise prohibited by law it shall be brought and conducted solely and exclusively within the United States District Court for the District of Oregon. CONTRACTOR HEREBY CONSENTS TO

THE IN PERSONAM JURISDICTION OF SAID COURTS AND WAIVES ANY OBJECTION TO VENUE

IN SUCH COURTS, AND WAIVES ANY CLAIM THAT SUCH FORUM IS AN INCONVENIENT

FORUM. Nothing herein shall be construed as a waiver of the State’s sovereign or governmental immunity, whether derived from the Eleventh Amendment to the United States Constitution or otherwise, or of any defenses to Claims or consent to jurisdiction based thereon.

2.25 SURVIVAL

The following provisions survive termination or expiration of this Contract: Sections 2.8, 2.9.1, DAS Procurement Services, Version 2.0 – June 3, 2021 Page 21 of 37

2.9.2, 2.20, 2.23, 2.24, 2.26, 2.27; “TAIL COVERAGE” as defined in Exhibit C, and Insurance.

2.26 SEVERABILITY

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

2.27 ASSIGNMENTS, SUBCONTRACTS, AND SUCCESSORS

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

2.27.1 Prompt Payments to Subcontractors

Contractor shall make prompt payments to its subcontractors supplying the Goods or Services identified for delivery under this Agreement

2.27.1.1 “Prompt payment(s)” are Contractor’s payment(s) to its subcontractor(s) for satisfactory performance or delivery that are issued by Contractor within fifteen

(15) Calendar Days of Contractor’s receipt of the related payment from Agency, unless a different payment schedule is otherwise agreed upon in the applicable subcontractor agreement, in which case the payment schedule in the applicable subcontractor agreement establishes “prompt payment(s).”

2.27.1.2 Prompt payment includes Contractor’s receipt of an acceptable invoice from the subcontractor.

2.27.1.3 Contractor’s prompt payment obligations do not extend to amounts that are subject to a good faith dispute between Contractor and the subcontractor.

2.27.1.4 Contractor’s invoices to Agency must include a written certification that Contractor is in compliance with its prompt payment obligations under this Contract.

2.27.1.5 Contractor shall include, in each subcontract for the Services delivered under this Agreement, provisions that require the subcontractor to comply with the prompt payment obligations of this Agreement with respect to its contractors supplying the Services identified for delivery under this Contract.

2.27.1.6 If Contractor fails to meet its prompt payment obligations under this section, Agency may suspend its performance without being in default under this Contract on written notice to Contractor, may issue a Stop Work Order under Section 2.19.2, or both.

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2.28 MERGER CLAUSE; AMENDMENT; WAIVER

This Contract constitutes the entire agreement between Contractor and Agency on the subject matter of this Contract. There are no understandings, agreements, or representations, oral or written, not specified in this Contract on the subject matter. No amendment of this Contract is valid unless it is in writing and signed by the parties. No waiver or consent is effective unless in writing and signed by the party against whom it is asserted. Waivers and consents are effective only in the specific instance and for the specific purpose given.