Buyer Attachemnt E Sample Goods Agreement - Google Docs.pdf

CAO 06/01/2023

RIP-9-2026 Library Cards on a Requirements Basis Attachment E Sample Goods Contract Terms and Conditions

MULTNOMAH COUNTY REQUIREMENTS CONTRACT FOR GOODS

This Requirements Contract for Goods (the “Contract”) is between Multnomah County(“County”) and[[ Name (Primary Second Party) ]](“Contractor”), each of whom is a “Party” and collectively theyarethe “Parties.” The Contract is comprised of theStandardTerms and Conditionsand:

Exhibit 1Bid Pages Exhibit 2Specifications and Additional Contract Requirements Exhibit 3Certification Statement for Corporationor Independent Contractor

The Contract may only be amended or supplemented by a writing that is signed by adulyauthorized representativeofeachParty,clearlyrecitestheParties’understandingandintenttoamendtheContract, and clearly and with specificity describes the terms to be amended or supplemented.

The Parties agree as follows:

Standard Terms And Conditions

1. EffectiveDateandTerminationDate.The“EffectiveDate”ofthiscontractshallbe[[StartDate ]]or the date, on which each party hassignedthisContract,whicheverislater.Thetermination date shall be [[ End Date ]] unless this contract is terminated earlier underSection 14, below.

2. Contractor’sAgreementtoSellGoods.ContractoragreestoselltoCountyonarequirements basistheitemsdescribedinExhibit 1(the“Goods”)inaccordancewiththetermsandconditions of this Contract and theExhibit 2.

3. CountyPurchasesNotRequiredandSubjecttoChange.Countyisnotrequiredtomakeany purchasesunderthisContract.CountymayaddproductstothisContractatpricesagreedupon by County and Contractor.

4. CountytoPurchasefromPrimaryVendor;Exceptions.IfContractoristheprimaryvendorfor theGoods,CountyshallpurchasethatitemfromContractorunless,foraparticularpurchase,that itemisnotavailablefromContractororbecauseofthegeographiclocationofContractororother reason it is in the County’s economic interest to purchase that item fromanothercontractor.If Contractor is shown as the secondary vendor for the Goods, County shall purchase that item from Contractor rather than the primary vendor only when that item is not available from the primary vendor, or becauseofthegeographiclocationofContractororotherreason,itisinthe County’s economic interest to purchase that Good from Contractor.

5. Payments From County. County shall pay Contractor for the Goods at the pricessetforthin Exhibit 1. The invoice shall be mailed to:

[[Your Multnomah County Billing Address]]

EachinvoiceshalldescribetheGoodsprovided,theitemnumbersandthequantityprovided.The invoice shall also identify each purchase order covered by the invoice by the number of the purchase order, the date, and the name of the person placing the order. All Goods shall be invoiced based on the same unit of measure shown onExhibit 1.

County shall pay the invoice within 30 days unlessotherwiseprovidedinExhibit 2.Contractor shallbillCountyasprovidedinExhibit 1.Countyshallhavetherighttowithholdfrompayments dueContractorsuchsumsasarenecessaryinCounty’ssoleopiniontoprotectCountyfromany loss,damage,orclaimwhichmayresultfromContractor’sfailuretoperforminaccordancewith the terms of the Contract.

a. Discounts for Early Payment. IftheCountyisentitledtoacashdiscountforpayment withinaparticularperiodoftime,thetimeperiodshallstartonthedatetheentireorderis delivered or the date the invoice is received whichever is later.

6. Delivery, Inspection, Acceptance of Goods.

a. Nosubcontracting.IfContractoriscreatingtheGoodsspecificallyforCounty,underthe termsoftheContract,thenContractorshallnotsubcontractanyaspectofthecreationof such Goods without the County’s prior written consent.

b. GeneralRequirements.AllGoodsdeliveredshallbeinfirstclassconditionandconform withContractspecifications.AcceptancebytheCountyshallbesubjecttoinspectionand approval, as further described in Section 6(c), below. In case of conflict between Exhibit 2andtheseStandardTermsandConditions,thetermsinExhibit 2shallprevail.

The apparent silence of the Standard Terms and Conditions and Exhibit 2 as to any detail or the apparent omission of a detailed description concerning any pointshallbe regardedasmeaningthatonlybestcommercialpracticeistoprevailandthatonlyGoods manufacturedwithmaterialandworkmanshipoffirstqualityaretobesupplied.AllGoods delivered shall be of identical style, quality and appointments as those offered to the trade in general during the course of the model year. All items delivered shall benew currentmodels,freeandclearofallliensandencumbrances.Unlessotherwiseprovided inExhibit 2,Goodsshall,whereappropriate,bepreparedfordeliverytoandusebythe Countybyafactoryfranchisedagent.EachGooddeliveredshallbeaccompaniedbyall pre-deliveryinspectionsheets,coupons,certificates,descriptiveliterature,warrantycards and information provided by the manufacturerandfurnishedtothetradeingeneral.All such documents shall be properly completed and signed in accordance with industry standards. All GoodsrequiredbyExhibit 2tobeULlistedshallindicatethecurrentUL listingontheitem.AllGoodsthatarerequiredbyExhibit 2tohaveanyothercertification shall indicate that certification on the Good or in its accompanying documentation.

c. Delivery. All deliveries shall be FOB destination specified in Exhibit 2 with all transportation and handling charges paid by Contractor, unless otherwise specified in Exhibit 2. Liability for loss or damage shall remain with the Contractor until final inspection and acceptance by the County.

d. Inspection and Acceptance. Goods furnished under this Contract shall be subject to inspection and test by theCountyattimesandplacesdeterminedbytheCounty.Ifthe CountyfindsanyoftheGoodsfurnishedtobeincompleteornotincompliancewiththe Contract, the County, at its sole discretion, may eitherrejectsomeoralloftheGoods, require Contractortocorrectanydefectswithoutcharge,ornegotiatewithContractorto selltheGoodstotheCountyatareducedprice,whichevertheCountydeemsequitable under the circumstances.IfContractorisunableorrefusestocureanydefectswithina timedeemedreasonablebytheCounty,theCountymayrejecttheGoodsandcancelthe Contract in whole or inpart.NothinginthisSection 6(d)shallinanywayaffectorlimit the County's rights as buyer under the UniformCommercialCode (UCC),includingthe rights and remedies relating to rejection under ORS 72.6020 and revocation of acceptance under ORS 72.6080.

e. Liens.ContractorshallnotpermitanyclaimtobefiledorprosecutedagainsttheCounty oranylienagainstthepropertypurchasedinconnectionwiththisContractandagreesto assume responsibility should such lien or claim be filed.

f. WarrantyandService.ContractorwarrantsallGoodsdeliveredtobefreefromdefects inlabor,materialandmanufactureandtobeincompliancewiththespecificationssetout in this Contract. All implied and express warranty provisions of the UCC are hereby incorporatedbyreference.Further,ContractorrepresentsandwarrantsthatthisContract, when executed and delivered, shall be a valid and binding obligation of Contractor enforceable in accordance with its terms. All items delivered shall carry either the standard manufacturer’s warranty or service policy providing thatwarrantyworkwillbe performed by any authorized manufacturer's dealer, or if specified in Exhibit 2, the warranty andservicepolicycalledforinthespecifications.Inaddition,unlessotherwise noted in Exhibit 2, the warranty and service policy indicated above shall include the following terms and conditions:

i. There shall be no distance or time limitations, not applicable to the trade in general, on either standard or extended warranty or labor. All franchised or authorized dealers of the item in the state shall honor warranty. Warranty maintenance requirements, when performed by County, shall be acceptable to dealer when said work performance meets or exceeds the dealer certification requirements. County shall provide evidence of such work performance upon request, as required by the manufacturer. Any extended warranty period customarily granted shall be made available to County at no additional cost, and

ii. Countyshallbeadvisedofallproductrecallsonalloranypartoftheitematno additional cost.Allproductrecallinformation,replacementpartsandlabor,shall be provided to the County as soon as available to Contractor.

7. HazardousMaterials.ContractorwarrantsthatGoodsprovidedunderthisContractcomplywith all federal Occupational Safety and Health Administration (OSHA) requirements and with all OregonsafetyandhealthrequirementsincludingthoseoftheGoodsCompensationDivision.All Goodsthatincludehazardousmaterialsshallbelabeledinaccordancewithlawwiththenames of the hazardous ingredients, the hazards of the materials and the appropriate precautions.

Contractor shall provide a Material Safety Data Sheet as defined by OSHA for any Goods providedunderthisContractwhichmayrelease,orotherwiseresultinexposureto,ahazardous substance under normal conditions ofuse.Inaddition,ContractorshallensuresuchGoodsare labeled, tagged, or otherwise appropriately marked. Those materials for which toxicological or hazarddataareunavailableshallcarryalabelstating:“Toxicologicalandotherhazardsunknown.

Handle as extremely hazardous.”

8. Recyclable Products. Contractor shall use recycled and recyclable products to the maximum extent economically feasible.

9. Quarterly Reports. Contractor shall provide quarterly reportstoCountywhichshoweachitem purchasedfromCountyinthepriorquarter,theindividualcostofeachitem,andthetotalcostof all Goods purchased in the quarter.

10. Time is of the Essence. Time is of the essence inthe performance of this Contract.

11. NoAssignment.ContractorshallnottransferanyofitsinterestinthisContract,withouttheprior written consent of County.

12. No Third-Party Beneficiaries. County andContractoraretheonlyPartiestothisContractand are the only Parties entitled toenforceitsterms.NothinginthisContractgivesorprovidesany benefit or right, whether directly, indirectly, or otherwise, to third-persons unless such third personsareindividuallyidentifiedbynameinthisContractandexpresslydescribedasintended beneficiaries of this Contract.

13. Successors in Interest. The provisions ofthisContractshallbebindinguponandinuretothe benefit of the Parties and their successors and approved assigns, if any.

14. Early Termination. This Contract may be terminated as follows:

a. CountyandContractor,bymutualwrittenagreement,mayterminatethisContractatany time.

b. County in its sole discretion may terminate this Contract for any reason on 30 days written notice to Contractor.

c. Either County or ContractormayterminatethisContractintheeventofabreachofthe Contractbytheother.Priortosuchterminationthepartyseekingterminationshallgiveto theotherpartywrittennoticeofthebreachandintenttoterminate.Ifthepartycommitting thebreachhasnotentirelycuredthebreachwithin15daysofthedateofthenotice,then thepartygivingthenoticemayterminatetheContractatanytimethereafterbygivinga written notice of termination.

d. Notwithstanding Section 14(c), County may terminate this Contract immediately by written notice to Contractor upon denial, suspension, revocation ornon-renewalofany license, permit or certificate that Contractor must hold to provide services under this Contract.

15. Payment on Early Termination. Upon termination pursuant to Section 14, payment shall be made as follows:

a. If terminated under Sections 14(a) or 14(b) for the convenience of the County, the County shall pay Contractor for Goods delivered prior to the termination date if such Goods were provided in accordance with the Contract and accepted by County.

Countyshallnotbeliablefordirect,indirectorconsequentialdamages.Terminationshall not result in a waiver of any other claim County may have against Contractor.

b. IfterminatedunderSection 14(c)bytheContractorduetoabreachbytheCounty,then the County shall pay the Contractor for Goodsdeliveredpriortotheterminationdateif such Goods were provided in accordance with the Contract and accepted by County.

c. If terminated under Sections 14(c) or 14(d) by the County due to a breach by the Contractor, then the County shall pay the Contractor for Goods delivered prior to the termination date provided such Goods were provided in accordance with the Contract and accepted by County, less any setoff to which the County is entitled.

16. Remedies. In the event of breach of this Contractthe Parties shall have the following remedies:

a. If terminatedunderSection 14(c)bytheCountyduetoabreachbytheContractor,the County may purchase goods the same as or substantially similar to the Goods from another supplier. If the cost of such coverage of goods over theremainingtermofthe ContractexceedsthecostthatCountywouldhavepaidunderthetermsofthisContractif Contractor had not breached the Contract, then the ContractorshallpaytotheCounty the difference between the cost of the coverage goods and the Goods.

b. In addition to the remedies in Sections 15 and 16 for a breach by theContractor,the County also shall be entitled to any other equitable and legal remedies that are available.

c. IftheCountybreachesthisContract,Contractor’sremedyshallbelimitedtotermination of the Contract and receipt of Contract payments to which Contractor is entitled.

17. AccesstoRecords.Contractorshallretain,maintainandkeepaccessibleallrecordsrelevantto this Contract (“Records”) for a minimum of six years, following Contract termination or full performanceoranylongerperiodasmayberequiredbyapplicablelaw,oruntiltheconclusionof any audit, controversy or litigation arising out of or related to this Contract, whichever is later.

ContractorshallmaintainallfinancialRecordsinaccordancewithgenerallyacceptedaccounting principles.AllotherRecordsshallbemaintainedtotheextentnecessarytoclearlyreflectactions taken. During this record retention period, Contractor shall permit the County’s authorized representatives access to the Records at reasonable times and places for purposes of examinationandcopying.InadditiontoaccesstoRecords,Contractorshallpermitthemembers of the County Auditor’s Office with reasonable access to its employees, properties, and equipment relevant to its performances under the Contract.

18. CompliancewithApplicableLaw.Contractorshallcomplywithallfederal,state,andlocallaws applicable to the Goods under this Contract, and all regulations and administrative rules established pursuant to those laws, including, without limitation ORS 279B.020 and the following:

a. Pursuant to ORS 279B.220, Contractor shall: (i) make payment promptly,asdue,toall persons supplying to the ContractorlaborormaterialfortheperformanceoftheGoods provided for in the Contract; (ii) pay all contributions or amounts due the Industrial Accident Fund from the Contractor or subcontractor incurred intheperformanceofthe Contract;(iii) notpermitanylienorclaimtobefiledorprosecutedagainstthestateora county, school district, municipality, municipal corporation or subdivision thereof, on accountofanylaborormaterialfurnished;and(iv) paytotheDepartmentofRevenueall sums withheld from employees under ORS 316.167.

b. Pursuant to ORS 279B.225, Contractor shall, if providing lawn and landscape maintenance services, salvage, recycle, compost or mulch yard waste material at an approved site, if feasible and cost-effective.

c. InaccordancewithORS 279B.230,Contractorshallpromptly,asdue,makepaymentto any person, co-partnership, association or corporation furnishing medical, surgical and hospital careservicesorotherneededcareandattention,incidenttosicknessorinjury, totheemployeesoftheContractor,ofallsumsthattheContractoragreestopayforthe services and all moneys and sums that the Contractor collected or deducted from the wagesofemployeesunderanylaw,contractoragreementforthepurposeofprovidingor paying for the services. All subject employers working undertheContractwarrantthey are either employers that will comply with ORS 656.017 or employers that areexempt under ORS 656.126.

d. Pursuant to ORS 279B.235, Contractor shall not employ any person for more than 10 hours in any one day, or 40 hours in any one week, except in cases of necessity, emergency,orwherethepublicpolicyabsolutelyrequiresit.Thelaborershallbepaidat leasttimeandahalfpaywhen:(i) overtimeisinexcessofeighthoursadayor40hours in anyoneweekwhentheworkweekisfiveconsecutivedays,MondaythroughFriday;

(ii) overtimeisinexcessof10hoursadayor40hoursinanyoneweekwhenthework week is four consecutive days,MondaythroughFriday;and(iii) servicesareperformed on Saturday and any legal holiday specified in a collective bargaining agreement or ORS 279B.020.Therequirementtopayatleasttimeandahalfforallovertimeworkedin excess of 40 hours in any one week, shall not apply to individuals who are excluded under ORS 653.010 to 653.261 or under 29 U.S.C. sections201to219fromreceiving overtime.

19. Indemnity.Contractorshalldefend,save,holdharmless,andindemnifyCountyanditsofficers, employees and agents from and against all claims, suits, actions, losses, damages, liabilities, costsandexpensesofanynaturewhatsoever,includingattorneysfees,resultingfrom,arisingout of, or relatingtotheactivitiesofContractororitsofficers,employees,subcontractors,oragents underthisContract.Contractorshallhavecontrolofthedefenseandsettlementofanyclaimthat is subject to this section. However, neither Contractor nor anyattorneyengagedbyContractor shalldefendtheclaiminthenameofCountyoranydepartmentofCounty,norpurporttoactas legal representative of County or any of its departments, without first receiving from the Multnomah County Attorney’s Office authority to act as legal counsel for County, nor shall Contractor settle any claim on behalf of County without theapprovaloftheMultnomahCounty Attorney’s Office. County may, at its election and expense, assume its own defense and settlement.

To avoid ambiguity, under this Section 19, Contractor agrees to indemnify and hold harmless Countyagainstallclaimsforpatentinfringementarisingfromthepurchase,installation,oruseof any Goods it delivers to County under the Contract and to assume all expenses, including attorney fees and pay all damages arising from such claim.

20. Insurance. Contractor shall ensure that insurance coverages consistent with the following requirements are in place during the term of the Contract:

a. Workers Compensation insurance in compliance with ORS 656.017 together with Employer’s Liability insurance with coverage limits of not less than $500,000.

b. CommercialGeneralLiabilityinsurance,onanoccurrencebasis,withacombinedsingle limitofnotlessthan$1,000,000,eachoccurrenceforbodilyinjuryandpropertydamage, with an annual aggregate limit of $2,000,000. This insurance shall include contractual liability coverage.

c. Automobile Liability insurancewithacombinedsinglelimit,ortheequivalentofnotless than $1,000,000 each occurrence for bodily injury and property damage, including coverage for owned, hired or non-owned vehicles.

CoveragemustbeprovidedbyaninsurancecompanyadmittedtodobusinessinOregon orratedA-orbetterbyBest’sInsuranceRating. Contractor’scoveragewillbeprimaryin the event of loss. Contractor shall pay all deductibles and retentions. A cross-liability clause or separation of insureds condition will be included in all commercial general liability policies required by this Contract.

ContractorshallfurnishaCertificateofInsurancetotheCountywiththesignedContract.

The Certificate shall provide that there shall be no cancellation, termination, material change, or reduction of limits of the insurance coveragewithout30dayswrittennotice fromtheContractor’sinsurertotheCounty.TheCertificateshallalsostatethedeductible orretentionlevel. Ifrequested,completecopiesofinsurancepoliciesshallbeprovidedto the County.

IfContractordeliversGoodstoCountybycommoncarrierandwillnotmakedeliveriesto the County using its own employees, then proof of insurance as set forth in this Section 20will not be required.

21. Waiver.ThefailureoftheCountytoenforceanyprovisionofthisContractshallnotconstitutea waiverbytheCountyofthatoranyotherprovision.WaiverofanydefaultunderthisContractby County shall not be deemed to be a waiver of any subsequentdefaultoramodificationofthe provisions of this Contract.

22. GoverningLaw/Venue.TheprovisionsofthisContractshallbeconstruedinaccordancewiththe laws of the State of Oregon and ordinances of Multnomah County, Oregon. Any legal action involvinganyquestionarisingunderthisContractmustbebroughtinMultnomahCounty,Oregon.

If the claim must be brought in a federal forum, then it shall be brought and conductedinthe United States District Court for the District of Oregon.

23. Severability. If any term or provision of this Contract is declared by a court of competent jurisdiction to be illegal or in conflict with any law, the validity of the remaining terms and provisions shall notbeaffected,andtherightsandobligationsofthePartiesshallbeconstrued and enforced as if the Contract did not contain the particular term or provision held invalid.

24. Merger Clause. The cover page, these Standard Terms and Conditions, and the attached exhibits that constitute the Contract are the entire agreement between the Parties. All understandings and agreements between the Parties and representations by either party concerning this Contract are contained in this Contract. No waiver, consent, modification or change in the terms of this Contract shall bind either party unless in writing signed by both Parties.Anywrittenwaiver,consent,modificationorchangeshallbeeffectiveonlyinthespecific instance and for the specific purpose given.

25. Anti-discriminationClause.Contractorshallnotdiscriminatebasedonrace,religion,color,sex, maritalstatus,familialstatus,nationalorigin,age,mentalorphysicaldisability,sexualorientation, gender identity, sourceofincome,orpoliticalaffiliationinprograms,activities,services,benefits or employment. Contractor shall not discriminate against minority-owned, women-owned or emerging small businesses. Contractor shall include a provision in each subcontract requiring subcontractors to comply with the requirements of this clause.

26. Intergovernmental Agreement. Pursuant to ORS 279A.215, other public agencies may establish contracts or price agreements directlywiththeContractorundertheterms,conditions and prices consistent with this Contract.

27. FederalFundsSubrecipient.TheAssistanceListingNumber(s)(ALN),title(s)andamount(s)of theFederalfundsareshownbelowalongwithotherrequiredinformationabouttheFederalaward per 2 CFR 200, Subpart D – Post Federal Award Requirements Standards for Financial and Program Management, Section 200.331 (see Attachment F).

28. Fiscal Requirements. If this Contract is a subaward (making Contractor a subrecipient of Federal funds), or if Contractor is a “Pass-through Provider”, defined as a non-federal organization that receives federal dollars and passes thosedollarsalongtoSub-recipients,(as indicated by the presence of an ALN# in the table above), Contractor agrees to the following requirements:

a. Use, Contractor agrees to use, document, and maintain accounting policies, practices and procedures, andcostallocations,andtomaintainfiscalandotherrecordspertinent tothisContractconsistentwithGenerallyAcceptedAccountingPrinciples(GAAP),Office of Management and Budget (OMB) Uniform Administrative Requirements, Cost PrinciplesandAuditRequirementsforFederalAwards(2CFRChapterI,ChapterII,Part 200), Oregon Administrative Rules, and County financial procedure in the Countywide Provider’s Fiscal Policies and Procedures Manual for contractors located at:

http://web.multco.us/finance/fiscal-compliance.

b. Accountingrecordswillbeup-to-dateandwillaccuratelyreflectallrevenuebysource,all expenses by object of expense and all assets, liabilities, and equities consistent with GAAP, Oregon Administrative Rules, and County procedures. Reports and fiscal data generated by Contractor under this Contract will be accessible to County upon request.

c. Contractor will be subject to a County fiscal compliance review to monitor compliance with County’s financial reporting and accounting requirements. The review will be completed periodically, as described in the Countywide Fiscal PoliciesandProcedures Manualforcontractors.IfContractor’scorporateheadquartersareoutofstate,Contractor agrees to pay travel costs incurred by County to conduct fiscal review. These costs include, but are not limited to, transportation to corporate headquarters, lodging, and meals.

d. Contractor shall conduct an audit as described under 2 CFR 200.500-521 (which replaces OMB Circular A-133) if such an audit is required by Federal regulations.

i. Limited scope and full audits, includingtheManagementLetterassociatedwith theaudit,ifissued,andallspecificationsidentifiedinCounty’sFiscalPoliciesand ProcedureManualwillbesubmittedtoCountywithin30daysfromthedateofthe report, butinnocaselaterthanninemonthsaftertheendofContractor’sfiscal year. Failure to submit required audits and Management Letter by specified

ALN # Program Title Program Amount [[ALN:AssistanceListing Number (ALN) Number ]]

[[ ALN: Program Name ]] [[ ALN: Dollar Amount ]] deadlines will be cause for withholding of Contract payments until audits are submitted.

ii. ContractoragreesthatauditsmustbeconductedbyCertifiedPublicAccountants whosatisfytheindependencerequirementsoutlinedintherulesoftheAmerican Institute of Certified Public Accountants (Rule 101 of the AICPA Code of Professional Conduct, and related interpretation and rulings),theOregonState Board of Accountancy, the independence rules contained within Government Auditing Standards (2003 Revision), and ruled promulgated by other Federal, State, and local government agencies with jurisdiction over Contractor. Those rulesrequirethattheCertifiedPublicAccountantbeindependentinthoughtand action withrespecttoorganizationswhoengagethemtoexpressanopinionon Financial Statements or to perform other services that require independence.