AttA-Sample Price Agreement .pdf

Motor Fuel Quality Testing Services ODA-4598-PA

PCA 32001

PRICE AGREEMENT

BETWEEN THE

STATE OF OREGON,

ACTING BY AND THROUGH ITS

DEPARTMENT OF AGRICULTURE (“ODA” or “Agency”)

AND

TBD

("Contractor")

FOR

MOTOR FUEL QUALITY TESTING SERVICES

Contact Information for Oregon Department of Agriculture Heather Hawes, Procurement and Contract Specialist

635 Capitol Street NE Salem, OR 97301

Phone: (503) 986-4581 Fax: (503) 986-4746 heather.hawes@oda.oregon.gov

Contact Information for Contractor

Company name Company contact name

Street address City, State, Zip

Phone Email

Table of Contents

SECTION 1 - DEFINITIONS

SECTION 2 - PRICE AGREEMENT TERMS AND CONDITIONS

SECTION 3 - STANDARD CONTRACT TERMS AND CONDITIONS

SECTION 4 - SPECIAL CONTRACT TERMS AND CONDITIONS

SECTION 5 - INSURANCE REQUIREMENTS

SECTION 6 - SPECIFICATIONS

SECTION 7 - PRICING

SECTION 8 - CERTIFICATION OF COMPLIANCE WITH TAX LAWS

SECTION 9 - CERTIFICATION OF COMPLIANCE WITH NONDISCRIMINATION LAWS

SECTION 10 - CONTRACTOR'S SIGNATURE PAGE -SECTION

SECTION 11 - AWARD AND STATE SIGNATURE PAGE

PRICE AGREEMENT

This Price Agreement is between the State of Oregon, acting by and through its Oregon Department of Agriculture ("ODA" or “Agency”) and the undersigned ("Contractor").

RECITALS

A. ODA issued Open Market Bid S-60300-00013160 seeking offers from qualified and responsible vendors to provide Goods, described in Sections 6 and 7 of this Price Agreement; and

B. Contractor submitted an Offer in response to the ITB offering to provide the Goods as set forth in Section 6 at the price set forth in Section 7 pursuant to the terms and conditions set forth herein; and

C. ODA, by its execution of Section 12 hereof, has awarded Contractor a Price Agreement for the Goods and Prices as set forth in Sections 6 and 7 of the ITB.

AGREEMENT

In consideration of the foregoing recitals and subject to the covenants, terms and conditions set forth below Contractor agrees to sell and ODA agrees to purchase the Goods described herein.

SECTION 1 DEFINITIONS

1.1 "Agency" means the Oregon Department of Agriculture (ODA) who has entered into this Price Agreement for the purchase of the Goods.

1.2 "Contract" means the entire agreement between ODA and Contractor consisting of this Price

Agreement, including any addenda and amendments, and a signed Purchase Order.

1.3 "Goods" means the individual items and related Services described in Sections 6 and 7.

1.4 “F.O.B” has the meaning found in ORS 72.3190.

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

1.6 "Purchase Order" or "Order" means the documentation, including but not limited to purchase orders, delivery orders and notices to proceed that are submitted to Contractor by ODA or Agency initiating the purchase and delivery of Goods under this Contract.

1.7 "Services" means the services, if any, described in Sections 6 and 7 to be performed by

Contractor under the Contract that are incidental to the purchase of Goods.

1.8 "Specifications" means the specific attributes of the Goods to be purchased or Services to be performed, if any as described in Section 6.

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

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

1.11 “State Agency” or “State Agencies” means boards, commissions, departments, or agencies of the State of Oregon, whose costs are paid, in whole or in part from funds held in the State Treasury.

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

SECTION 2. PRICE AGREEMENT TERMS AND CONDITIONS

2.1 PRICE ADJUSTMENTS:

2.1.1 PRICE INCREASES: Contractor may seek a Unit price increase reflecting increased operating or raw material costs or both (“Production Costs”) by submitting a written request to the ODA, including all appropriate supporting price documentation. If approved, the Unit price increase shall be firm for the duration of the Term until another Production Cost increase is requested and approved. Provided, however, no more than one Unit price increase shall be allowed during any twelve-month period.

2.1.1.1 The maximum percentage increase based upon increased Production Costs shall not exceed the percentage of increase in manufacturer’s then current list price over the prior year’s list price.

2.1.1.2 The ODA reserves the right in its sole discretion to determine whether to agree to a price increase. It further reserves the right to require additional documentation, or to independently verify the basis for and validity of any proposed price increase utilizing its internal price review and analysis protocols. The ODA may accept or reject a requested increase or offer a lesser amount.

2.1.1.3 In the event the ODA counter offers or rejects the requested price increase, Contractor may elect to accept the price increase under those conditions, or allow the ODA to terminate the Price Agreement under section 2.6. However, Contractor has no right to receive, or claim for failure to receive, a price increase.

2.1.2 PRICE DECREASE: ODA shall be given the immediate benefit of any price decrease.

Contractor shall promptly notify ODA of the amount and effective date of each decrease.

This decrease shall apply to orders placed on or after the effective date of the decrease.

Invoices shall reflect prices in effect on the date ODA’s purchase order was written.

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

2.2 Fixed Terms, Conditions and Prices.

2.2.1 A Price Agreement constitutes a firm offer by the Contractor regardless of whether any order or purchase has been made or any performance has been tendered under the Price Agreement.

2.2.2 A Price Agreement is enforceable for the period stated in the Price Agreement and, notwithstanding ORS 72.2050, obligations there under are not revocable by the contractor. ORS 279B.140.

2.3 TERM OF PRICE AGREEMENT. The initial Price Agreement Term shall be for 3 years beginning on the date that ODA signs the Price Agreement. ODA and Contractor may extend the term of the Price Agreement for an additional three (3) year period, with the aggregate Price Agreement term not to exceed ten (10) years, unless terminated earlier in accordance with the termination provisions set forth herein or up to $250,000.00 whichever comes first.

2.4 EXTENSIONS. ODA shall notify Contractor in writing if ODA intends to extend the Price

Agreement (“Renewal Notice”) at least thirty (30) days prior to the expiration of the then current term. If Contractor consents to the extension, it shall sign and return the Renewal Notice to ODA within the time period specified therein. If the Contractor does not consent, the Price Agreement shall expire according to its terms and conditions, unless earlier terminated.

2.5. ONE MONTH EXTENSION OPTION. Notwithstanding the foregoing, ODA reserves the right in its sole discretion to extend the Price Agreement for a maximum of one (1) calendar month beyond the end of any term. ODA shall notify Contractor in writing of the one (1) calendar month extension prior to the expiration of the then current term. Consecutive one-month extensions obtained under this Section are not allowed.

2.6 TERMINATION.

2.6.1 ODA and Contractor may terminate the Price Agreement at any time by mutual written consent.

2.6.2. ODA may, at its sole discretion, terminate the Price Agreement upon thirty (30) days written notice to Contractor including for the reasons set forth in ORS 279B.140.

2.6.3 ODA may terminate the Price Agreement if Contractor is in default under any Contract.

2.7 PURCHASE ORDERS: Contractor shall only accept purchase orders that: (a) contain the mandatory purchase order language set forth in Section 2.7.1, below, (b) specify the quantity of Goods ordered; (c) specify a delivery schedule, if any; (d) specify delivery location; (e) specify invoicing address; and (f) specify ODA’s authorized representative (“Purchase Order”). Contractor shall only accept Purchase Orders that do not vary, amend, modify, or add Contract provisions other than changes to the ODA’s authorized representative, identification of Goods and order quantities, optional Services, equipment and accessories offered under the terms of the Price Agreement, delivery schedules in accordance with the terms of the Price Agreement, delivery destination and invoicing address. Each such Purchase Order Contractor accepts shall create a separate Contract between the parties, enforceable in accordance with the terms thereof and independent of all other such Contracts.

2.7.1 MANDATORY PURCHASE ORDER LANGUAGE:

THIS PURCHASE IS SUBMITTED PURSUANT TO STATE OF OREGON PRICE

AGREEMENT #ODA-4598-PA. THE PRICE AGREEMENT INCLUDING CONTRACT

TERMS AND CONDITIONS AND SPECIAL CONTRACT TERMS AND CONDITIONS (T'S

& C'S) CONTAINED IN THE PRICE AGREEMENT ARE HEREBY INCORPORATED BY

REFERENCE AND SHALL APPLY TO THIS PURCHASE AND SHALL TAKE

PRECEDENCE OVER ALL OTHER CONFLICTING T'S AND C'S, EXPRESS OR

IMPLIED.

2.7.2 Notwithstanding any other provision of this Price Agreement, in the event that ODA uses a credit card to pay for an order, an ODA generated Purchase Order is not a necessary document to the transaction. In lieu of a Purchase Order document, a Contractor order acknowledgement document will become a part of the Contract. However, in no event will an order acknowledgement, web order page or other Contractor generated document used to acknowledge the order such modify or provide additional terms and conditions of this Contract.

2.7.3 In the event a court of competent jurisdiction determines that a Purchase Order constitutes an offer rather than an acceptance, then acceptance by Contractor shall be limited to the terms and conditions of the Contract as set forth in this Price Agreement.

2.8 RESTRICTIONS: Contractor shall be responsible for maintaining a listing of the current State of Oregon issued Price Agreements, to include any Price Agreements for similar products with differing delivery specifications than those stipulated under this Price Agreement.

2.9 TRAVEL: Travel expenses incurred by the Contractor shall not be reimbursed to the Contractor by ODA.

SECTION 3. STANDARD CONTRACT TERMS AND CONDITIONS

3.1 ORDER OF PRECEDENCE: The printed terms and conditions set out in this Section 3 are the Standard Terms and Conditions for State of Oregon contracts for Goods. ODA may also provide Special Contract Terms and Conditions in Section 4, which apply only to this Contract. Whenever possible, all terms and conditions are to be harmonized. In the event of a conflict between the Standard and Special Contract Terms and Conditions, the Special Contract Terms and Conditions take precedence, except in the event the Standard term in question is required by law. In the event of any other conflict, the Contract will be interpreted in the following order of precedence: (i) amendments, (ii) addenda (iii) the Special Contract Terms and Conditions, (iv) Specifications, and (v) these Standard Contract Terms and Conditions, and (vi) Price Agreement Terms and Conditions.

3.2 PAYMENT: Contractor shall look solely to Agency for payment of all amounts that may be due under this Contract. Agency is solely responsible for payment under this Contract. Payment is due by Agency within forty-five (45) days after the date of the invoice pursuant to ORS 293.462.

3.3 OVERDUE CHARGES: At Contractor's option, it may assess overdue account charges, in accordance with the provisions of ORS 293.462(3), up to a maximum rate of two-thirds of one percent per month (8% per annum) in accordance with the provision of ORS 293.462(4).

3.4 PAYMENT ADDRESS: Payment shall be sent to Contractor at the address specified in the invoice.

3.5 INVOICES: Contractor shall invoice Agency upon delivery and acceptance by Agency of the entire order. Invoices shall be sent to the Bill To specified in the Purchase Order. Contractor shall include in its invoice:

3.5.1 Price Agreement #,

3.5.2 Purchase Order #,

3.5.3 Goods ordered

3.5.4 Volume or quantity of Goods delivered

3.5.5 Price per item or quantity of Goods,

3.5.6 Total amount due,

3.5.7 Address to which payment is to be sent.

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

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

3.6.2 Section 3.6.1 does not apply to donations of Goods to charitable, nonprofit or government entities, if the donations are recognized as such and are deductible under the federal Internal Revenue Code. Such donations shall not be considered contracts, agreements, sales or arrangements with other government units or commercial customers subject to the application of section 3.6.1.

3.7 INSPECTIONS/ACCEPTANCE: The Agency may reject any shipment and cancel any Purchase Order which does not meet all of the requirements of the specifications and warranties. The Agency shall have ten (10) calendar days from date of delivery of the entire order within which to inspect and accept or reject the Goods. If the Goods are rejected, the Agency shall provide Contractor with written notification of rejection. Notice of rejection shall include itemization of apparent defects, including but not limited to (i) discrepancies between the Goods and the applicable Specifications or warranties (including variance from demonstrations or sample characteristics where demonstrations or samples have been provided), (ii) other apparent defects in design, materials, or manufacture, (iii) missing parts, components, or accessories, (iv) damage to Goods, including damage occurring during shipment, or (v) otherwise nonconforming Goods (including late delivery). Notice of rejection shall also indicate whether cure will be allowed.

3.7.1 CURE: The Agency may permit Contractor to deliver substitute Goods that comply with the Contract specifications and warranties. The Contractor shall deliver substitute conforming Goods within ten (10) calendar days of receipt of notice of rejection and opportunity to cure.

Failure to complete cure within the ten (10) calendar-day period shall constitute material default.

3.7.2 REMOVAL/REIMBURSEMENT: If the Goods are rejected or acceptance is revoked, the

Contractor shall refund any Contract payments that have been made with regard to the Goods, and shall (at Contractor's sole cost and expense) remove the Goods within seven (7) calendar days of receiving notice of rejection or revocation of acceptance.

Nothing contained in this Section 3.7 precludes ODA from other remedies to which it may be entitled upon rejection or revocation of acceptance.

3.8 REPRESENTATIONS; WARRANTIES:

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

3.8.2 WARRANTY ON MATERIALS, DESIGN, MANUFACTURE: Contractor represents and warrants that all Goods shall be new, unused, current production models, where applicable, and shall be free from defects in materials, design and manufacture for the duration of the manufacturer’s warranty period specified in Section 4. Contractor further represents and warrants that all Goods are in compliance with and meet or exceed all Specifications set forth in section 6, Specifications.

3.8.3 WARRANTY ON SERVICE STANDARDS: Contractor represents and warrants that all

Services, if any, shall be performed in a good and workmanlike manner, and in the event that such Services are covered by professional or industry standards then the Services shall be performed according to the highest applicable professional and/or industry standards.

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

3.8.5 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), State and Federal Motor Vehicle Safety Standards, and all Oregon safety and health requirements, including, but not limited to, those of the State Workers' Compensation Division.

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

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

3.8.8 CONTRACTOR WARRANTY PERIODS: Warranty periods for Manufacturer and

Contractor’s warranties on materials, design, and manufacture covering components and accessories, if any, shall not start until the date the Unit is actually put into service, as established by receiving the ODA’s business records.

3.9 COMPLIANCE WITH APPLICABLE LAWS AND STANDARDS:

3.9.1 Contractor shall comply with all federal, state and local laws, regulations, executive orders and ordinances applicable to the Contract. Without limiting the generality of the foregoing, Contractor expressly agrees to comply with the following laws, regulations and executive orders to the extent they are applicable to the Contract: (i) Titles VI and VII of Civil Rights Act of 1964, as amended; (ii) Sections 503 and 504 of the Rehabilitation Act of 1973, as amended; (iii) the Americans with Disabilities Act of 1990, as amended; (iv) Executive Order 11246, as amended; (v) The Age Discrimination in Employment Act of 1967, as amended, and the Age Discrimination Act of 1975, as amended; (vi) The Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended; (vii) ORS Chapter 659, as amended;

(viii) all regulations and administrative rules established pursuant to the foregoing laws; (ix) all other applicable requirements of federal and state civil rights and rehabilitation statutes, rules and regulations; and (x) all federal and state laws governing the handling, processing, packaging, storage, labeling, and delivery of food products, if applicable. All laws, regulations and executive orders applicable to the Contract are incorporated by reference where so required by law. The State's' performance is conditioned upon Contractor's compliance with ORS 279B.220, 279B.225, 279B.230, 279B.235, and 279B.270, as applicable, the terms of which are incorporated by reference into such Contracts.

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

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

As used in this section, “cost” includes substitute equipment, labor, transportation and shipping costs, insurance, travel, meals, accommodations, etc..

3.9.4 In the event any Good or component part is recalled by a regulatory body or the manufacturer, or discovered by Contractor not to be in compliance with the applicable standards, Contractor shall immediately notify the Agency of the recall or non-compliance, and shall provide copies of the notice or other documentation. ODA may elect to (a) cancel any portion of the Contract, (b) reject the Goods, (c)revoke its acceptance of the Goods, or

(d) terminate the Contract in whole or in part, based upon such recall or non-compliance. In the event of rejection or revocation of acceptance under this subsection, Contractor shall promptly remove the Goods at its sole cost and expense, and reimburse Agency for payments made within thirty (30) days of written notification by Agency.

3.10 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 shall be entitled to withhold final payment under the Contract until Contractor has met this requirement. Vendors can register via the internet at: http://www.oregon.gov/DCBS/

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

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

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

3.14 INSURANCE: Contractor shall obtain prior to performing under the Contract, and maintain during the term of the Contract (including all warranty periods), the insurance required under Section 5. With regard to workers' compensation insurance, all employers, including Contractor, that employ subject workers who work under the Contract in the State of Oregon shall comply with ORS 656.017 and provide the required workers' compensation coverage, unless such employers are exempt under ORS 656.126(2). Contractor shall require and ensure that each of its subcontractors, if any, complies with these requirements.

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

3.16 INDEPENDENT CONTRACTOR STATUS; RESPONSIBILITY FOR TAXES AND WITHHOLDING:

3.16.1 Contractor shall perform all Services as an independent Contractor. Although Agency reserves the right (i) to determine (and modify) the delivery schedule for the Goods to be delivered and Services to be performed and (ii) to evaluate the quality of the completed performance, 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 Services called for under this Contract.

3.16.2 If Contractor is currently performing work for the State of Oregon or the federal government, Contractor by signature to this Contract declares and certifies that:

Contractor's performance of this Contract creates no potential or actual conflict of interest as defined by ORS 244 and no rules or regulations of Contractor's employing agency (state or federal) would prohibit Contractor's performance of this Contract.

Contractor is not an "officer," "employee," or "agent" as those terms are used in ORS

30.265 of the State or Agency.

3.16.3 Contractor shall be 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.

3.17 INDEMNIFICATION:

3.17.1 CONTRACTOR SHALL DEFEND, SAVE, HOLD HARMLESS, AND INDEMNIFY THE

STATE AND ITS OFFICERS, EMPLOYEES AND AGENTS FROM AND AGAINST ALL

CLAIMS, SUITS, ACTIONS, PROCEEDINGS, LOSSES, DAMAGES, LIABILITIES, AWARDS

AND COSTS OF EVERY KIND AND DESCRIPTION (INCLUDING REASONABLE

ATTORNEY'S FEES AND EXPENSES AT TRIAL, ON APPEAL AND IN CONNECTION

WITH ANY PETITION FOR REVIEW) (COLLECTIVELY, "CLAIM") WHICH MAY BE

BROUGHT OR MADE AGAINST ANY AGENCY, THE STATE, OR THEIR AGENTS,

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

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

ERROR, FAULT, MISTAKE OR NEGLIGENCE OF CONTRACTOR, ITS EMPLOYEES,

AGENTS, RELATED TO THIS CONTRACT, (II) ANY ACT OR OMISSION BY

CONTRACTOR THAT CONSTITUTES A MATERIAL BREACH OF THIS CONTRACT,

INCLUDING WITHOUT LIMITATION ANY BREACH OF WARRANTY, OR (III) THE

INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET OR OTHER

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

AGENCY SHALL PROMPTLY NOTIFY CONTRACTOR IN WRITING OF ANY CLAIM OF

WHICH AGENCY 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, THE STATE, OR THEIR AGENTS,

OFFICIALS OR EMPLOYEES, 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.

3.17.2 PROVIDED, HOWEVER, 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 AND/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 THAT OF ITS OFFICERS, EMPLOYEES

AND AGENTS, AT ANY TIME WHEN IN THE STATE'S SOLE DISCRETION IT

DETERMINES THAT (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 AND/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/OR THAT OF ITS OFFICERS, EMPLOYEES, OR AGENTS UNDER

(I) AND (II) ABOVE.

3.18 EVENTS OF DEFAULT:

3.18.1 Default by Contractor. Contractor shall be in default under this Contract if:

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

3.18.1.2 Contractor no longer holds a license or certificate that is required for Contractor to perform its obligations under this Contract and Contractor has not obtained such license or certificate within ten (10) business days after delivery of Agency’s notice of default or such longer period as Agency may specify in such notice; or

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

3.18.2 Default by Agency. Agency shall be in default under this Contract if:

3.18.2.1 Agency fails to pay Contractor any amount pursuant to the terms of this Contract, and

Agency fails to cure such failure within ten (10) business days after delivery of Contractor's notice of default or such longer period as Contractor may specify in such notice; or

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

3.19 REMEDIES:

3.19.1 State's Remedies. In the event Contractor is in default under Section 3.18.1, in addition to the remedies afforded elsewhere herein, Agency, shall be entitled to recover for any and all damages suffered as the result of Contractor's breach of Contract, including but not limited to direct, indirect, incidental and consequential damages, as provided in ORS 72.7110 to

72.7170. 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:

3.19.1.1 Termination of this Contract under Section 3.21.2;

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

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

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

3.19.1.5 These remedies are cumulative to the extent the remedies are not inconsistent, and

Agency may pursue any remedy or remedies singly, collectively, successively or in any order whatsoever. If it is determined for any reason that Contractor was not in default under Sections 3.18.1, the rights and obligations of the parties shall be the same as if this Contract was terminated pursuant to Section 3.21.2.1.

3.19.2 Contractor's Remedies. In the event Agency terminates the Contract for convenience under

Section 3.21.2, or in the event Agency is in default under Section 3.18.2 and whether or not Contractor elects to exercise its right to terminate the Contract under Section 3.21.3, Contractor's sole remedy shall be (a) A claim against Agency for the unpaid price for any Goods delivered and accepted by Agency (b) with respect to Services compensable on an hourly basis, a claim against Agency for unpaid invoices, hours worked but not yet billed and authorized expenses for Services completed and accepted by Agency (c) with respect to deliverable-based Services, a claim against Agency for the sum designated for completing the deliverable multiplied by the percentage of Work completed and accepted by Agency, less previous amounts paid and any claim(s) which State has against Contractor. If previous amounts paid to Contractor exceed the amount due to Contractor under this Section, Contractor shall pay any excess to Agency upon written demand.

3.20. ATTORNEYS' FEES: With the exception of defense costs and expenses pursuant to 3.17, neither party shall be entitled to recover attorney's fees, court and investigative costs, or any other fees or expenses associated with pursuing a remedy for damages arising out of or relating to the Contract.

3.21 TERMINATION:

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

3.21.2 AGENCY:

3.21.2.1Agency may, at its sole discretion, terminate the Contract, for convenience upon 30 days written notice.

3.21.2.2Agency is excused from performance and may in its sole discretion terminate the

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: (i) the Agency fails to receive funding, or appropriations, limitations or other expenditure authority at levels sufficient to pay for the Goods to be purchased under the Contract; or

(ii) federal or state laws, regulations, or guidelines are modified or interpreted in such a way that either the purchase of the Goods by the Agency under the Contract is prohibited, or the Agency is prohibited from paying for such Goods from the planned funding source; or (iii) Contractor commits any material breach of the Contract. Pursuant to this Section 3.21.2.2, upon receipt of written notice of termination, Contractor shall stop performance under the Contract as directed by Agency.

3.21.3 CONTRACTOR: Contractor may terminate the Contract immediately upon notice to Agency, or at such later date as it may establish in such notice as set forth in Section 3.18.2.1, upon Agency's failure to pay for the Goods, in accordance with the terms of this Contract.

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

Record retention period established in this Section 3.22, the Contractor shall permit the State, its duly authorized representatives, and the federal government access to the Records at a reasonable time and place for purposes of examination and copying.

3.23 NOTICES: All notices required under the Contract shall be in writing and addressed to the party's authorized representative. For the State, the authorized representative is the contact point identified in Section 11. Contractor's authorized representative shall be the individual identified in Section 10. Mailed notices shall be deemed received five (5) days after post marked, when deposited, properly addressed and prepaid, into the U.S. postal service. Faxed notices shall be deemed received upon electronic confirmation of successful transmission to the designated fax number. Personal delivery shall be effective upon delivery. Email notices shall be deemed received upon electronic confirmation of message sent. If confirmation occurs outside of a Business Day, receipt will be the first Business Day thereafter.

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

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

3.26 VENUE; CONSENT TO JURISDICTION: Any claim, action, suit or proceeding (collectively, "Claim") between the State and Contractor that arises from or relates to the Contract 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 jurisdiction based thereon.

3.27 SURVIVAL: All rights and obligations shall cease upon termination or expiration of this Contract, except for the rights and obligations set forth in Sections 2.1 (Price Adjustments), 2.2 (Fixed Terms, Conditions and Prices), 2.3 (Term of Price Agreement), 2.4 (Extensions), 2.5 (One Month Extension Option), 2.6 (Termination), Sections 3.2 (Payment), 3.5 (Invoices), 3.6 (Most Favorable Prices and Terms), 3.10 (Foreign Contractor), 3.12 (Time is of the Essence), 3.13 (Force Majeure), 3.8 (Representations and Warranties), 3.14 (Insurance), 3.15 (Funds Available & Authorized; Payment), 3.16 (Independent Contractor Status; Responsibility for Taxes and Withholding), 3.17 (Indemnification), 3.18 (Events of Default), 3.19 (Remedies), 3.20 (Attorney's Fees), 3.21 (Termination), 3.22 (Access to Records), 3.23 (Notices), 3.25 (Governing Law), 3.26 (Venue; Consent to Jurisdiction), 3.27 (Survival),

3.28 (Severability), 3.29 (Assignment/Subcontract/Successors), 3.30 (Merger Clause; Amendment;

Waiver), and 4.16 (Warranty on Materials, Design, and Manufacture).

3.28 SEVERABILITY: If any provision of the Contract is declared by a court of competent jurisdiction to be illegal or otherwise invalid, the validity of the remaining terms and provisions 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.

3.29 ASSIGNMENT/SUBCONTRACT/SUCCESSORS: Contractor shall not assign, sell, transfer, or subcontract rights, or delegate responsibilities under the Contract, in whole or in part, without the prior written approval of 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 the Contract shall be binding upon, and shall inure to the benefit the parties to the Contract and their respective successors and permitted assigns.

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

SECTION 4 SPECIAL CONTRACT TERMS AND CONDITIONS

4.1 EQUIPMENT STANDARDS: Contractor must meet the highest standards prevalent in the industry or business most closely involved in providing the Supplies that ODA is purchasing under Sections 6 and 7 of this ITB.

4.2 RESERVED

4.3 DELIVERY:

4.3.1 Motor fuel quality test results shall be delivered within 2 business days from of receipt by Contractor. An order shall be deemed “received” by Contractor in accordance with section

3.23 of this Contract.

4.3.2 Motor fuel quality test results shall be delivered same day when specified by Weights and

Measures staff upon receipt by Contractor. An order shall be deemed “received” by Contractor in accordance with section 3.23 of this Contract.

4.3.3 Motor fuel quality test results shall be delivered via email to Agency staff as specified.

4.4 RISK OF LOSS: Delivery shall not be considered complete, and risk of loss shall remain with Contractor, until acceptance by the Agency or expiration of the inspection period, whichever occurs last.

4.5 PACKAGING MATERIALS: All packaging and packing methods and materials shall be in accordance with the best commercial practice.

4.5.1 All shipping containers shall comply with the relevant National Motor Freight Classification and Uniform Freight Classification requirements/standards, and must be sufficiently sturdy to prevent crushing, bruising, or other damage to Goods, and to prevent breakage of shipping container itself.

4.5.2 Commercial cartons must be used for all boxed Goods. All cartons must be sufficiently sturdy to prevent crushing, bruising, or other damage to the contents, and to prevent breakage of the carton itself.

4.5.3 All shipping cartons must be labeled with contents (including brand name) and volume.

4.6 PRICE AGREEMENT:

4.6.1 The Price Agreement shall be a price agreement for the Goods and Services specified herein. Except as otherwise provided herein, ODA agrees to order from Contractor all its actual requirements for the Goods and Services specified and Contractor agrees to provide the Goods and Services as ordered. However, ODA and Contractor understand and agree that the quantities of Goods and Services are estimates only and, except as otherwise provided herein, if ODA’s actual requirements during the Initial Term or any Extension Term of this Contract do not result in orders in the quantities described as “estimated”, that fact shall not constitute the basis for an equitable price adjustment.

4.6.2 Delivery or performance shall be made only as authorized by Purchase Orders issued in accordance with Section 4.7 Method of Ordering. Contractor shall furnish to Agency all Goods and Services specified as ordered in conformance with the terms and conditions of this Contract.

4.6.3 If ODA urgently requires delivery of certain Goods or Services prior to the earliest date that delivery may be specified under this Contract, and if the Contractor will not accept an order providing for the accelerated delivery, ODA may acquire the urgently required Goods or Services from another source without liability to Contractor.

4.6.4 Any Purchase Order issued during the Initial Term or any Extension Term of this Contract and not completed within the Initial Term or Extension Term shall be completed by the Contractor within the time specified in the Purchase Order. The Contract shall govern the Contractor's and ODA’s rights and obligations with respect to that order to the same extent as if the order were completed during the Initial Term or Extension Term; provided, however, that the Contractor shall not be required to make any deliveries under this Contract after the last day of the Initial Term or any Extension Term unless Agency has exercised the option to further extend the Contract as provided herein.

4.7 METHOD OF ORDERING: ODA shall issue Purchase Orders against the Price Agreement.

Purchase Orders will indicate the item, volume, delivery date and any special delivery destination/instructions. Provided, however, that no Purchase Order or Contractor confirmation form or pre-printed Contractor form shall contain any language varying, adding or deleting the terms or conditions contained in the Contract, and any such language shall be of no effect.

4.7.1 Contractor shall send Agency written confirmation of all orders within forty-eight (48) hours of receiving order. Confirmation shall be emailed to Agency Contact for each order. Order confirmation will include the Purchase order number, contractor order number, and estimated delivery date.

4.8 PRIOR NOTICE OF ORDER SHORTAGES: The Contractor shall notify ODA ordering personnel within twenty-four (24) hours of receiving an order whenever the Contractor determines that a Good will not be available for shipment on its scheduled delivery day. This includes a notice to ODA’s ordering personnel whenever a particular Good will be short-shipped. Notice of unavailability or projected short-shipment will not eliminate ODA’s right to pursue all available remedies.

4.9 RETURNS: ODA will notify the Contractor to correct any discrepancies that occur concerning any shipment pertaining to damage to Goods, rejections, nonconformity, errors or any other conditions which would make the delivery of the Goods unacceptable. The Contractor shall correct any discrepancies that occur concerning any damage, nonconformity, errors or any other conditions that would make the Goods unacceptable within ten (10) days of notification. The Contract shall correct the discrepancy by replacing the unacceptable Goods with acceptable Goods within ten (10) days.

4.10 RETURNED GOODS POLICY: Contractor shall accept returned Goods when one or more of the following conditions is present:

4.10.1 Breakage, spoilage or other damage has occurred from shipment or otherwise, when the Goods have been handled by ODA personnel with reasonable care;

4.10.2 Goods, quality, packaging, appearance, or other feature is not as specified in the Contract or as sampled;

4.10.3 Goods supplied was the result of Contractor error, and ODA is not willing to keep the shipment of Goods.

4.11 SUBSTITUTION: No brand substitutions will be allowed without prior written permission of ODA to Contractor.

4.12 PERFORMANCE: Contractor shall deliver all Goods and perform all Services required by this Contract within the time specified, including extensions. All Services shall be performed in the most highly professional manner, and in accordance with the highest industry standards. Unless the means or methods of performing a task are specified elsewhere in the Contract, Contractor shall employ methods that are generally accepted and used by the industry. Any performance that is found unacceptable will be documented and the Contractor will be given written notice to correct the problem within a specified period. If the problem continues beyond the specified period the Contractor may be found in breach of the Contract, and the Contract shall be canceled.

4.13 DEFAULT: If the Contractor fails to deliver on schedule or fails to replace items within the agreed time, ODA may purchase such items on the open market to replace those not delivered and reserves the right to deduct any excess in price specified in the contract from monies owed by the Contractor to the ODA.

4.14 RESERVED

4.15 PRICE: The price for each item will be for the item only. Delivery charges shall be true costs and shown as a separate line item on the invoice.

4.16 WARRANTY ON MATERIALS, DESIGN, MANUFACTURE. Contractor represents and warrants that all Goods shall be new, unused, current production models, where applicable, fit for their intended purpose, and shall be free from defects in materials, design and manufacturer for the life of the manufacturer’s original warranty, as well as any extended warranties offered by Contractor.

4.17 AMENDMENTS. This Price Agreement may be amended, modified, or supplemented only by a written amendment signed by the ODA and Contractor that has been approved by the ODA and the Oregon Department of Justice, if required by applicable law (“Amendment”). Any Amendment that provides for additional Goods or Services may only provide for Goods or Services directly related to the scope of Goods or Services described in the Price Agreement and no Amendment shall be effective until all requisite signatures and approvals are obtained.

4.17.1 AMENDMENT REQUESTS. Either the ODA or Contractor may submit an Amendment request to amend this Price Agreement, including all Exhibits hereto, by submitting to the ODA Price Agreement Administrator a written Amendment request describing the change requested. The ODA and Contractor’s Authorized Representatives will review the written Amendment request and will mutually approve it for either amendment, further refinement, or reject it. In the event an Amendment request is approved for further refinement the parties agree that it may be refined by mutual agreement and submitted as an Amendment, or rejected.

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