Exhibit D-Contract.docx

CONTRACT

NO. 2024-0904

FOR

HIGHWAY SPEED CAMERA PILOT PROGRAM

By and Between

WASHINGTON STATE DEPARTMENT OF TRANSPORTATION

and

Dated _____________________, 2024

CONTRACT NO. 2024-0904 – HIGHWAY SPEED CAMERA PILOT PROGRAM 27

(Rev. 2024-04-24)

CONTRACT

NO. ____

FOR

This Contract (“Contract”) is entered into by and between the State of Washington, acting by and through the Department of Transportation, an agency of Washington State government (“WSDOT”) located at 7345 Linderson Way, Tumwater, WA 98501 and ____________________, a ________________ (“Contractor”) and is dated and effective as of _______________ __, 20__.

R E C I T A L S A. Pursuant to Legislative direction codified in RCW 39.26, Procuring Agency is authorized to solicit and award contracts, through a competitive procurement process, to obtain goods and/or services for its use, including ________________ (“Goods and/or Services”).

B. WSDOT issued Solicitation #_______ dated __________, 2021, for the purpose of Procuring Agency, as part of a competitive governmental procurement, issued Competitive Solicitation No. K ____ dated ___________, 20__.

C. Procuring Agency evaluated all responses to the Competitive Solicitation and identified Contractor as the apparent successful bidder.

D. The purpose of this Contract is to enable Procuring Agency to purchase the Goods and/or Services as set forth herein.

A G R E E M E N T NOW THEREFORE, in consideration of the mutual promises, covenants, and conditions set forth herein, the parties hereto hereby agree as follows:

1. TERM. The term of this Contract is ___________ (__) months, commencing _____________, 20__ and ending _____________, 20__; Provided, however, that if Contractor is not in default and if, by __________, 20__, in Procuring Agency’s reasonable judgment, Contractor satisfactorily has met the performance-based goals for contract extension, Procuring Agency shall extend the term of this Contract, by written amendment, for up to __________ (__) additional months. Such extension amendment shall be on the same terms and conditions as set forth in this Contract. To earn the performance-based Contract term extension, Contractor must achieve the following performance-based metrics:

2. SCOPE – INCLUDED GOODS AND/OR SERVICES AND PRICE.

2.1. CONTRACT SCOPE. Pursuant to this Contract, Contractor is authorized to sell and provide only those goods and/or services (“Goods and/or Services”) set forth in Exhibit A – Included Goods/Services for the prices set forth in Exhibit B – Prices for Goods/Services.

(a) Goods. For purposes of this Contract, “Goods” means all equipment, materials, supplies, ancillary parts, accessories, components and other items purchased as defined in this Contract.

(b) Services. For purposes of this Contract, “Services” means all services of any nature ordered by Procuring Agency pursuant to this Contract.

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

2.2. PROCURING AGENCY’S ABILITY TO MODIFY SCOPE OF CONTRACT. Subject to mutual agreement between the parties, Procuring Agency reserves the right to modify the Goods and/or Services included in this Contract; Provided, however, that any such modification shall be effective only upon ten (10) days advance written notice; and Provided further, that any such modification must be within the scope of the Competitive Solicitation for this Contract.

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

3. CONTRACTOR REPRESENTATIONS AND WARRANTIES. Contractor makes each of the following representations and warranties as of the effective date of this Contract and at the time of performance pursuant to this Contract. If, at the time of performance, Contractor cannot make such representations and warranties, Contractor shall not perform and shall, within three (3) business days notify Procuring Agency, in writing, of such breach.

3.1. QUALIFIED TO DO BUSINESS. Contractor represents and warrants that Contractor is (a) in good standing; (b) qualified to do business in the State of Washington; and (c) registered with the Washington State Department of Revenue and the Washington Secretary of State.

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

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

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

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

3.6. CIVIL RIGHTS. Contractor represents and warrants that Contractor complies with all applicable requirements regarding civil rights. Such requirements prohibit discrimination against individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity, or national origin.

3.7. EXECUTIVE ORDER 18-03 – WORKERS’ RIGHTS [IF APPLICABLE]. Contractor represents and warrants, as previously certified in Contractor’s Bidder’s Certification, that Contractor does NOT require its employees, as a condition of employment, to sign or agree to mandatory individual arbitration clauses or class or collective action waivers. Contractor further represents and warrants that, during the term of this Contract, Contractor shall not, as a condition of employment, require its employees to sign or agree to mandatory individual arbitration clauses or class or collective action waivers.

3.8. WASHINGTON SMALL BUSINESS [IF APPLICABLE]. Contractor represents and warrants, as previously certified in Contractor’s Bidder Certification, that Contractor qualifies as a Washington Small Business as defined and set forth in Contractor’s Bidder’s Certification.

3.9. CERTIFIED VETERAN-OWNED BUSINESS [IF APPLICABLE]. Contractor represents and warrants, as previously certified in Contractor’s Bidder Certification, that Contractor qualifies as a Certified Veteran-Owned Business as defined and set forth in Contractor’s Bidder’s Certification.

3.10. PUBLIC CONTRACTS AND PROCUREMENT FRAUD. Contractor represents and warrants that, within the three (3) year period prior to this Contract, neither Contractor nor its principals or affiliates: (a) have been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offence in connection with obtaining, attempting to obtain, or performing a public (federal, state or local) contract under a public contract; (b) have been in violation of federal or state antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements or receiving stolen property; (c) are presently indicted for or otherwise criminally or civilly charged by a government entity (federal, state or local) with commission of any of the offense enumerated in subsection (b) of this provision; or (d) had one or more public contracts (federal, state or local) terminated for cause or default.

3.11. PROCUREMENT ETHICS & PROHIBITION ON GIFTS. Contractor represents and warrants that Contractor complies fully with all applicable procurement ethics restrictions including, but not limited to, restrictions against Contractor providing gifts or anything of economic value, directly or indirectly, to Washington State employees.

3.12. WASHINGTON’S STATEWIDE PAYEE DESK. Contractor represents and warrants that Contractor is registered with Washington’s Statewide Payee Desk, which registration is a condition to payment.

3.13. ADVERTISING AND ENDORSEMENT. Contractor understands and acknowledges that neither Procuring Agency nor the State of Washington are endorsing Contractor’s goods and/or services or suggesting that such goods and/or services are the best or only solution to their needs. Accordingly, Contractor further represents and warrants that Contractor shall make no reference to Procuring Agency or the State of Washington in any promotional material without the prior written consent of Procuring Agency.

3.14. CONTINGENT FEES. Contractor represents and warrants that no person or selling agent has been employed or retained to solicit or secure this Contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established agents as defined in the Federal Acquisition Regulations.

3.15. FINANCIALLY SOLVENT. Contractor represents and warrants that Contractor has not commenced bankruptcy proceedings and that there are no judgment, liens, or encumbrances of any kind affecting title to any Goods and/or Services that are the subject of this Contract.

3.16. OPERATIONAL CAPABILITY. Contractor represents and warrants, as previously certified in Contractor’s Bidder’s Certification, that Contractor has the operational and financial capability to perform the Contract.

3.17. ACCESS EQUITY – CONTRACT REPORTING (if utilizing subcontractors). Contractor represents and warrants, as previously certified in Contractor’s Bidder’s Certification, that Contractor, if utilizing subcontractors to perform this Contract, shall register and report monthly, as Contractor, through Access Equity, Washington’s secure online business diversity vendor management system (B2Gnow), which is managed by Washington’s Office of Minority and Women’s Business Enterprises (OMWBE), any payments to subcontractors pertaining to the Contract. Contractor further represents and warrants, as previously certified in Contractor’s Bidder’s Certification, that Contractor shall use commercially reasonable efforts to ensure that such subcontractors also utilize Access Equity to verify such payment information as reported by Contractor.

3.18. CONTRACT TRANSITION. Contractor represents and warrants that, in the event this Contract is transitioned to another contractor (e.g., Contract expiration or termination), Contractor shall use commercially reasonable efforts to assist Procuring Agency for a period of sixty (60) days to effectuate a smooth transition to another contractor to minimize disruption of service and/or costs to the State of Washington.

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

3.20. [PLACEHOLDER]. Contractor represents and warrants, as previously certified in Contractor’s Bidder’s Certification, that Contractor __________.

4. QUALITY; WARRANTY; REMEDIES.

4.1. GOODS WARRANTY. Contractor warrants that, for a period of twelve (12) months from the date when the Goods are put into use, or eighteen (18) months after delivery of the Goods, whichever is later (“Goods Warranty Period”), the Goods: (a) are free from defects in design, material, and workmanship; (b) are fit and safe for the intended purposes and appropriate for the specified application(s) (if any); (c) are consistent with recognized industry quality standards; (d) comply with the requirements, specifications, drawings, standards, and descriptions included in this Contract; and (e) are produced and delivered in full compliance with applicable law (“Goods Warranty”). Contractor further warrants that it has good and marketable title to the Goods and shall keep Procuring Agency property free of liens. If Procuring Agency receives notice of a lien caused by Contractor, Procuring Agency may withhold any payment otherwise due Contractor until Contractor submits proof, in a form satisfactory to Procuring Agency, that all lienable claims have been fully paid or waived.

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

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

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

4.5. IT WARRANTY. Contractor warrants, that all hardware, software, and firmware associated with Goods or Services (“IT Goods” and “IT Services”, respectively) shall not: (a) contain any viruses, malicious code, Trojan horse, worm, time bomb, self-help code, back door, or other software code or routine designed to: (i) damage, destroy, or alter any software or hardware; (ii) reveal, damage, destroy, or alter any data; (iii) disable any computer program automatically; or (d) permit unauthorized access to any software or hardware; (b) contain any third party software (including software that may be considered free software or open source software) that (i) may require any software to be published, accessed, or otherwise made available without the consent of Procuring Agency, or (ii) may require distribution, copying, or modification of any software free of charge; and (c) infringe on any patent, copyright, trademark, or other proprietary or intellectual property right of any third party or misappropriate any trade secret of any third party (“IT Warranty”). The IT Warranty shall expire twelve (12) months after the date IT Goods are delivered or IT Services are complete, as applicable.

4.6. IT REMEDY. If IT Goods or IT Services do not comply with the IT Warranty, or if any defect or non-conformance develops during the IT Warranty Period, Contractor, at Procuring Agency election, promptly shall: (a) remedy the defect by removing, repairing, correcting or replacing, and/or reinstalling any defective IT Goods; (b) re-perform or correct the non-conforming IT Services at no additional cost to Procuring Agency; or (c) refund the amounts paid for IT Services and IT Goods.

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

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

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

5.1. REGULATORY REQUIREMENTS/SAFETY. Goods and/or Services supplied by Contractor shall meet all applicable health, safety, and other federal, state, and/or local regulatory agency requirements applicable to the Goods and/or Services.

5.2. MATERIAL SAFETY DATA SHEETS. As applicable, Contractor shall provide Procuring Agency with all appropriate current Material Safety Data Sheets (“MSDS”) at the time of delivery of each shipment of Goods which requires such compliance and/or and for materials used by Contractor while performing Services pursuant to this Contract.

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

5.4. ACCIDENT AND INJURY REPORTING. If Contractor, its agents, employees, or subcontractors are present at Procuring Agency’s premises, Contractor promptly shall report in writing all injuries, accidents, property damage, near-miss incidents, or any claims regarding damages or injury involving Contractor, its agents, employees, or subcontractors occurring at such premises. Contractor agrees to cooperate and assist Procuring Agency in any investigation of incidents.

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

5.6. IT SECURITY POLICIES. Contractor, its agents, employees, or subcontractors shall comply with all Washington State IT security policies and standards which shall be made available to Contractor upon request.

6. SUBCONTRACTORS.

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

(a) Incorporate Contractor’s responsibilities under this Contract into its subcontracts;

(b) Be fully responsible for the performance of any such subcontractors (regardless of tier) and ensure that subcontractors comply with each and every Contractor obligation set forth in this Contract;

(c) Be the sole point of contact for Procuring Agency regarding all contractual matters;

(d) Ensure that such subcontractors are registered in WEBS;

(e) Ensure that such subcontractors comply with the Access Equity requirements applicable to subcontractors as set forth in this Contract; and

(f) Defend, indemnify, and hold Procuring Agency harmless in case of negligence, other tortious fault, or intentional misconduct by any such subcontractors (regardless of tier).

Prior to utilizing any subcontractor to perform this Contract, Contractor shall provide written notice to Procuring Agency’s contract administrator. For each such subcontractor, such notice shall confirm that such subcontractor is:

· Registered in WEBS; and

· Identified by Contractor in Access Equity.

6.2. ACCESS EQUITY. If Contractor utilizes subcontractors to perform this Contract, this section applies. In such circumstances, this Contract is subject to compliance tracking using Access Equity, Washington’s online business diversity vendor management system (B2Gnow), which is managed by Washington’s Office of Minority and Women’s Business Enterprises (OMWBE). Access Equity is web-based and can be accessed at https://omwbe.diversitycompliance.com/. User guides and documentation related to Contractor and subcontractor access to and use of Access Equity are available online at https://omwbe.wa.gov/access-equity-help-center. Contractor may contact the Contract Administrator for technical assistance in using the Access Equity system.

(a) Contract Payment Reporting & Verification. Contractor and any subcontractors utilized by Contractor to perform this Contract shall utilize Access Equity to report and confirm receipt of payments made to Contractor by Procuring Agency and to each subcontractor.

(b) Contractor Requirements.

1. Registration. Contractor, within fifteen (15) calendar days of the effective date of this Contract, shall register in Access Equity and enter all required subcontractor information. In the event Contractor subcontracts to perform this Contract after the effective date of this Contract, Contractor shall update Access Equity within fifteen (15) calendar days of such subcontract.

2. Training. Contractor, within twenty (20) calendar days of the effective date of this Contract (or later engagement of a subcontractor), shall complete the required Access Equity user training (two (2) one-hour online sessions).

3. Subcontractors. Contractor shall require any subcontractor(s) utilized by Contractor to perform this Contract to:

· Register in Access Equity;

· Complete the required Access Equity user training;

· Use Access Equity to verify the amount and date of receipt of each payment from Contractor or, if applicable, a higher tier subcontractor;

· Use Access Equity to report payments made by subcontractor to any lower tier subcontractor(s), if any, in the same manner as specified herein;

· Promptly respond to any requests or instructions from Contractor or system-generated messages to check or provide information in Access Equity; and

· When necessary, promptly coordinate with Contractor and/or Procuring Agency to resolve any discrepancies between reported and received payments.

4. Reporting. Contractor, quarterly shall report the amount and date of:

· All payments received from Procuring Agency; and

· All payments paid to subcontractor(s);

Provided, however, that Contractor shall mark as “final” and report final subcontractor payments no later than thirty (30) calendar days after final payment is due to subcontractor(s).

5. Monitor & Respond. Contractor shall monitor contract payments and respond promptly to any requests or instructions from Procuring Agency or system-generated messages to check or provide information in Access Equity.

6. Resolve Discrepancies. When necessary, promptly coordinate with subcontractor(s) and/or Procuring Agency to resolve any discrepancies between reported and received payments.

(c) Right to withhold Payment for Noncompliance. In the event Contractor or subcontractors, if any, fails to comply with this section, Procuring Agency may, in addition to any other lawful remedy, upon written notice of such noncompliance, withhold payment to Contractor until such time as such noncompliance is cured.

6.3. REPORTING. If Contractor is required to report to Procuring Agency, such report(s) shall include subcontractor data, by subcontractor, for any data that Contractor is required to report as well as a consolidated ‘rollup’ report combining Contractor and subcontractor data.

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

7. DELIVERY & INSTALLATION.

7.1. DELIVERY REQUIREMENTS. Contractor must ensure that the Goods and/or Services are delivered or provided as required by this Contract or as otherwise mutually agreed in writing between Procuring Agency and Contractor. The following apply to all deliveries:

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

(b) Contractor shall ship all Goods and/or Services purchased pursuant to this Contract, freight charges prepaid by Contractor, FOB Procuring Agency’s specified destination with all transportation and handling charges included. Contractor shall bear all risk of loss, damage, or destruction of the Goods and/or Services ordered hereunder that occurs prior to delivery and installation, except loss or damage attributable solely to Procuring Agency’s fault or negligence.

(c) All packing lists, packages, instruction manuals, correspondence, shipping notices, shipping containers, and other written materials associated with this Contract shall be identified by the Contract number set forth on the cover of this Contract.

7.2. RECEIPT AND INSPECTION OF GOODS AND/OR SERVICES. Goods and/or Services purchased under this Contract are subject to Procuring Agency’s reasonable inspection, testing, and approval at Procuring Agency’s destination. Procuring Agency reserves the right to reject and refuse acceptance of Goods and/or Services that are not in accordance with this Contract. If there are any apparent defects in the Goods and/or Services at the time of delivery, Procuring Agency promptly shall notify Contractor. At Procuring Agency’s option, and without limiting any other rights, Procuring Agency may require Contractor to repair or replace, at Contractor’s expense, any or all of the damaged Goods and/or Services or, at Procuring Agency’s option, Procuring Agency may note any damage to the Goods and/or Services on the receiving report, decline acceptance, and deduct the cost of rejected Goods and/or Services from final payment.

7.3. CUSTOMER SERVICE. ______________

8. PERFORMANCE OF SERVICES.

8.1. OWNERSHIP OF DELIVERABLES. Notwithstanding any provision to the contrary, the parties understand and agree that Procuring Agency shall own all rights to any plans, reports, or other deliverables provided to Procuring Agency pursuant to this Contract. The copyright in all works of authorship created pursuant to this Contract shall be owned by the State of Washington. All such works or portions of works created by the Contractor are hereby agreed to be "works made for hire" within the meaning of 17 U.S.C. § 201. If, however, the State of Washington is not able to obtain copyright ownership under the statutory provisions for "works made for hire," then Contractor hereby assigns to State of Washington all right, title, and interest in: (a) the copyright to Contractor’s work of authorship ("Work") and contribution to any such Work ("Contribution"); (b) any registrations and copyright applications, along with any renewals and extensions thereof, relating to the Contribution or the Work; (c) all works based upon, derived from, or incorporating the Contribution or the Work; (d) all income, royalties, damages, claims and payments now or hereafter due or payable with respect to the Contribution or the Work; (e) all causes of action, either in law or in equity, for past, present, or future infringement of copyright related to the Contribution or the Work, and all rights corresponding to any of the foregoing, throughout the world. In addition, to the extent any applicable law or treaty prohibits the transfer or assignment of any moral rights or rights of restraint the Contractor has in the Contribution or the Work, the Contractor waives those rights as to State of Washington, its successors, licensees, and assigns.

8.2. CONTRACTOR KEY STAFF CHANGES. Except in the case of a leave of absence, sickness, death, termination of employment or unpaid or paid leave of absence, agreed upon Key Staff must not be changed during the term of this Contract. Otherwise, any change in Key Staff must be agreed in writing between the parties. During the term of the Contract, Procuring Agency reserves the right to approve or disapprove of Contractor and Subcontractor Key Staff assigned to perform services as required by this Contract, or to require the removal or reassignment of any Contractor or Subcontractor Key Staff found unacceptable by Procuring Agency, subject to Procuring Agency’s compliance with applicable laws and regulations. Contractor must provide Procuring Agency with a resume of any member of its Key Staff or a Subcontractor’s Key Staff assigned to or proposed for any aspect of performance under this Contract prior to commencing any Services.

In the event that proposed Contractor resources are unavailable to deliver the work, Contractor must staff the project with resources with equal or greater skills and capabilities, subject to approval from Procuring Agency.

Procuring Agency must be notified of any change in Contractor Key Staff as soon as practicable but in no event less than five (5) working days after removal of such staff from their duties in support of this Contract. Contractor must provide resumes and describe the roles and responsibilities of any replacement staff to Procuring Agency as soon as practicable but in no event less than five (5) working days prior to the date that such staff begin work under this Contract. Procuring Agency reserves the right, in its sole judgement, to approve or reject such replacement staff. Procuring Agency’s approval of such staff shall not be unreasonably withheld.

9. INVOICING & PAYMENT.

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

(a) Contract No. 2024-0904

(b) Contractor name, address, telephone number, and email address for billing issues (i.e., Contractor Customer Service Representative);

(c) Contractor’s Federal Tax Identification Number;

(d) Date(s) of delivery;

(e) Applicable Goods and/or Services;

(f) Invoice amount;

(g) Applicable taxes; and

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

9.2. PAYMENT. Procuring Agency’s obligation to pay invoices is subject to receipt of a timely and accurate invoice and conforming Goods and/or Services. Unless Contractor has provided a prompt payment discount set forth in Exhibit B – Prices for Goods/Services, Procuring Agency’s payment is due within thirty (30) days of invoice. Procuring Agency retains the right of setoff for any amount due or owing to Procuring Agency. Procuring Agency may make payments electronically (e.g., ACH payments). Contractor shall provide information necessary to facilitate electronic payments. If Procuring Agency fails to make timely payment(s), Contractor may invoice Procuring Agency in the amount of one percent (1%) per month on the amount overdue or a minimum of $1. Payment shall not be considered late if a check or warrant is mailed within the time specified.

9.3. OVERPAYMENTS. Contractor promptly shall refund to Procuring Agency the full amount of any erroneous payment or overpayment. Such refunds shall occur within thirty (30) calendar days of written notice to Contractor; Provided, however, that Procuring Agency shall have the right to elect to have either direct payments or written credit memos issued. If Contractor fails to make timely refunds of overpayment(s) (either directly or by such credit memo), Contractor shall pay Procuring Agency interest at a rate of one percent (1%) per month on the amount overdue thirty (30) calendar days after notice to Contractor.

9.4. ADVANCE PAYMENT PROHIBITED. Except as authorized by law, Contractor shall not request or receive advance payment for any Goods and/or Services furnished by Contractor pursuant to this Contract.

9.5. NO ADDITIONAL CHARGES. Unless otherwise specified herein, Contractor shall not include or impose any additional charges including, but not limited to, charges for shipping, handling, insurance, or payment processing.

9.6. TAXES/FEES. Contractor promptly shall pay all applicable taxes on its operations and activities pertaining to this Contract. Failure to do so shall constitute breach of this Contract. Unless otherwise agreed, Procuring Agency shall pay applicable sales tax imposed by the State of Washington on purchased goods and/or services. Contractor’s invoices shall separately state (a) taxable and non-taxable charges and (b) sales/use tax due by jurisdiction. In regard to federal excise taxes, Contractor shall include federal excise taxes only if, after thirty (30) calendar days written notice to Procuring Agency, Procuring Agency has not provided Contractor with a valid exemption certificate from such federal excise taxes.

10. CONTRACT MANAGEMENT.

10.1. CONTRACT ADMINISTRATION & NOTICES. Except for legal notices, the parties hereby designate the following contract administrators as the respective single points of contact for purposes of contract administration for this Contract. Procuring Agency’s contract administrator shall provide contract administrative oversight. Contractor’s contract administrator shall be Contractor’s principal contact for invoice/billing activities under this Contract. The parties may change contract administrators by written notice as set forth below.

Any notices required or desired shall be in writing and sent by U.S. mail, postage prepaid, or sent via email, and shall be sent to the respective addressee at the respective address or email address set forth below or to such other address or email address as the parties may specify in writing:

Attn: Contract Services 7345 Linderson Way SE Tumwater, WA 98501 Tel: (___) ______________ _ Email: ___________@wsdot.wa.gov Attn: _________________________ Tel: (___) __________ Email: _______________

Notices shall be deemed effective upon the earlier of receipt, if mailed, or, if emailed, upon transmission to the designated email address of said addressee.

10.2. CONTRACTOR CUSTOMER SERVICE REPRESENTATIVE. Contractor shall designate a customer service representative (and inform Procuring Agency of the same) who shall be responsible for addressing Procuring Agency’s issues pertaining to this Contract.

10.3. LEGAL NOTICES. Any legal notices required or desired shall be in writing and sent by U.S. mail, postage prepaid, or sent via email, and shall be sent to the respective addressee at the respective address or email address set forth below or to such other address or email address as the parties may specify in writing:

Attn: Contract Services 7345 Linderson Way SE Tumwater, WA 98501 Tel: (___) ______________ _ Email: ___________@wsdot.wa.gov Attn: _________________________ Email: _______________

Notices shall be deemed effective upon the earlier of receipt if mailed, or, if emailed, upon transmission to the designated email address of said addressee.

11. RECORDS RETENTION & AUDITS.

11.1. RECORDS RETENTION. Contractor shall maintain books, records, documents, and other evidence pertaining to this Contract to the extent and in such detail as shall adequately reflect contract performance and administration of purchases, payments, taxes and fees. Contractor shall retain such records for a period of six (6) years following expiration or termination of this Contract or final payment, whichever is later; Provided, however, that if any litigation, claim, or audit is commenced prior to the expiration of this period, such period shall extend until all such litigation, claims, or audits have been resolved.

11.2. AUDIT. [Procuring Agency reserves the right to audit, or have a designated third-party audit, applicable records to ensure that Contractor properly has invoiced Procuring Agency. Accordingly, Contractor shall permit Procuring Agency and any other duly authorized agent of a governmental agency, to audit, inspect, examine, copy and/or transcribe Contractor’s books, documents, papers and records directly pertinent to this Contract for the purpose of making audits, examinations, excerpts, and transcriptions. This right shall survive for a period of six (6) years following expiration or termination of this Contract or final payment, whichever is later; Provided, however, that if any litigation, claim, or audit is commenced prior to the expiration of this period, such period shall extend until all such litigation, claims, or audits have been resolved.

12. INSURANCE.

12.1. REQUIRED INSURANCE. Contractor, at its expense, shall maintain in full force and effect the insurance coverages set forth in Exhibit C – Insurance Requirements. All costs for insurance, including any payments of deductible amounts, shall be considered incidental to and included in the prices for Goods and/or Services and no additional payment shall be made to Contractor.

12.2. WORKERS COMPENSATION. Contractor shall comply with applicable workers compensation statutes and regulations (e.g., RCW Title 51, Industrial Insurance). If Contractor fails to provide industrial insurance coverage or fails to pay premiums or penalties on behalf of its employees as may be required by law, Procuring Agency may terminate this Contract. This provision does not waive any of the Washington State Department of Labor and Industries (L&I) rights to collect from Contractor. If Contractor performs Services on Procuring Agency’s behalf in the State of Washington, and only to the extent of claims against Contractor by Procuring Agency under the Indemnity obligations in this Contract, Contractor expressly waives any immunity it may be granted under the Washington State Industrial Insurance Act, Title 51 RCW. Contractor’s indemnification obligation shall not be limited in any way by any limitation on the amount or type of damages, compensation, or benefits payable to or for any third party under workers’ compensation acts, disability benefit acts, or other employee benefit acts. The parties expressly acknowledge and certify that the waiver of immunity under Title 51 RCW was mutually negotiated and agreed upon.

13. CLAIMS.

13.1. ASSUMPTION OF RISKS; CLAIMS BETWEEN THE PARTIES. Contractor assumes sole responsibility and all risks of personal injury or property damage to itself and its employees and agents in connection with Contractor’s operations under this Contract. Procuring Agency has made no representations regarding any factor affecting Contractor’s risks. Contractor shall pay for all damage to any WSDOT’s property resulting directly or indirectly from Contractor’s acts or omissions under this Contract.

13.2. THIRD-PARTY CLAIMS; GENERAL INDEMNITY. To the fullest extent permitted by law, Contractor shall defend, indemnify, and hold Procuring Agency and its employees and agents harmless from and against all claims, demands, judgments, assessments, damages, penalties, fines, costs, liabilities or losses including, without limitation, sums paid in settlement of claims, attorneys’ fees, consultant fees, and expert fees (collectively “Claims”) to the extent arising out of Contractor’s or its successors’, agents’, and subcontractors’ negligence, other tortious fault, or intentional misconduct under this Contract. The parties agree that if there are any limitations of Contractor’s liability, including a limitation of liability clause for anyone for whom the Contractor is responsible, such limitations of liability shall not apply to injuries to persons, including death, or to damages to property. Contractor shall take all steps needed to keep Procuring Agency’s property free of liens arising from Contractor’s activities, and promptly obtain or bond the release of any such liens that may be filed.

13.3. INTELLECTUAL PROPERTY INDEMNITY. To the fullest extent permitted by law, Contractor shall defend, indemnify, and hold Procuring Agency and its employees and agents harmless from and against any and all Claims resulting from allegations of infringement of any patents, copyrights, trade secret, or similar intellectual property rights covering the Goods and/or Services provided, or the use of the Goods and/or Services under this Contract. If Procuring Agency’s use of the Goods and/or Services provided by Contractor is enjoined based on an intellectual property infringement Claim, Contractor shall, at its own expense, either procure for Procuring Agency the right to continue using the Goods and/or Services or, after consulting with Procuring Agency and obtaining Procuring Agency’s consent, replace or modify the Goods and/or Services with substantially similar and functionally equivalent non-infringing Goods and/or Services.

14. DISPUTE RESOLUTION. The parties shall cooperate to resolve any dispute pertaining to this Contract efficiently, as timely as practicable, and at the lowest possible level with authority to resolve such dispute. If, however, a dispute persists and cannot be resolved, it may be escalated within each organization. In such situation, upon notice by either party, each party, within five (5) business days shall reduce its description of the dispute to writing and deliver it to the other party. The receiving party then shall have three (3) business days to review and respond in writing. In the event that the parties cannot then agree on a resolution of the dispute, the parties shall schedule a conference between the respective senior manager of each organization to attempt to resolve the dispute. In the event the parties cannot agree, either party may resort to court to resolve the dispute.

15. SUSPENSION; EXPIRATION; TERMINATION; REMEDIES.

15.1. TERMINATION. This Contract may be terminated: (a) upon the mutual written agreement of the parties; (b) by the non-breaching party where the breach is not cured within thirty (30) calendar days after written notice of breach is delivered to the breaching party, unless a different time for cure is otherwise stated in this Contract; and (c) as otherwise expressly provided for in this Contract. This Contract shall terminate automatically and without further action if a party becomes insolvent or is placed in receivership, reorganization, liquidation, or bankruptcy. In addition to any other available remedies, the non-breaching party may terminate this Contract as provided in subsection (b) above without further liability by written notice to the breaching party. A termination for breach shall not affect rights or obligations accrued or owed before the effective date of the termination notice.

15.2. TERMINATION FOR NONAPPROPRIATION OR REDUCTION OF FUNDS OR CHANGES IN LAW. Procuring Agency may suspend or terminate this Contract, at the sole discretion of Procuring Agency or, as applicable, if Procuring Agency reasonably determines that: (a) a change in Federal or State legislation or applicable laws materially affects the ability of either party to perform under the terms of this Contract; or (b) that a change in available funds affects Procuring Agency’s ability to pay Contractor. A change of available funds as used in this section includes, but is not limited to, a change in Federal or State funding, whether as a result of a legislative act or by order of the President or the Governor. If a written notice is delivered under this provision, Procuring Agency shall reimburse Contractor for Goods properly ordered and/or Services properly performed until the effective date of said notice. Except as stated in this provision, in the event of termination for nonappropriation or reduction of funds or changes in law, Procuring Agency shall have no obligation or liability to Contractor.

15.3. TERMINATION FOR PUBLIC CONVENIENCE. Procuring Agency, for public convenience, may terminate this Contract; Provided, however, that such termination for public convenience must, in Procuring Agency’s judgment, be in the best interest of the State of Washington; and Provided further, that such termination for public convenience shall only be effective upon sixty (60) days prior written notice; and Provided further, that such termination for public convenience shall not relieve Procuring Agency from payment for Goods and/or Services already ordered as of the effective date of such notice. Except as stated in this provision, in the event of such termination for public convenience, Procuring Agency shall not have any obligation or liability to Contractor.

15.4. EXPIRATION – PROCURING AGENCY’S OBLIGATIONS. Upon expiration of this Contract, Procuring Agency’s shall accept and take delivery of all outstanding and not yet fulfilled orders and pay Contractor the price as set out in the Contract.

15.5. EXPIRATION OR TERMINATION – CONTRACTOR’S OBLIGATIONS. Upon expiration or termination of this Contract, Contractor shall: (a) continue to fulfill its warranty obligations with respect to any Goods and/or Services sold hereunder and all provisions of the Contract that, by their nature, would continue beyond the expiration, termination, or cancellation of the Contract shall so continue and survive; and (b) promptly return to Procuring Agency all keys, badges, and other materials supplied by Procuring Agency pursuant to this Contract.

15.6. DEFAULT. Any of the following events shall constitute cause for Procuring Agency to declare Contractor in default of this Contract:

(a) Contractor fails to perform or comply with any of the terms or conditions of this Contract;

(b) Contractor fails to maintain the insurance coverages specified herein or timely provide to Procuring Agency the Certificate of Insurance and updates thereto specified herein;

(c) Contractor breaches any representation or warranty provided herein; or

(d) Contractor enters into proceedings relating to bankruptcy, whether voluntary or involuntary.

15.7. SUSPENSION & TERMINATION FOR DEFAULT. Procuring Agency may suspend Contractor’s operations under this Contract immediately by written cure notice of any default. Suspension shall continue until the default is remedied to Procuring Agency’s reasonable satisfaction; Provided, however, that, if after twenty (20) days from such a suspension notice, Contractor remains in default, Procuring Agency may terminate Contractor’s rights under this Contract. All of Contractor’s obligations to Procuring Agency survive termination of Contractor’s rights under this Contract, until such obligations have been fulfilled.

15.8. REMEDIES FOR DEFAULT.

(a) Procuring Agency’s rights to suspend and terminate Contractor’s rights under this Contract are in addition to all other available remedies.

(b) In the event of termination for default, Procuring Agency may exercise any remedy provided by law including, without limitation, the right to procure replacement Goods and/or Services. In such event, Contractor shall be liable to Procuring Agency for damages as authorized by law including, but not limited to, any price difference between the Contract price and the replacement or cover price as well as any administrative and/or transaction costs directly related to such replacement procurement – e.g., the cost of the competitive procurement.

15.9. LIMITATION ON DAMAGES. Notwithstanding any provision to the contrary, the parties agree that in no event shall any party be liable to the other for exemplary or punitive damages; Provided, however, that nothing contained in this Section shall in any way exclude or limit: (a) a party’s liability…