ITB_12203_Attachment_A_Price_Agreement_Final.pdf

ATTACHMENT A

State of Oregon Price Agreement No. PO-10700-000 “XXXXX”

With

[Contractor Name] to provide the following:

Supply and Delivery of Bulk Propane, Tanks, Related Goods and Services

Price Agreement No. “XXXX” (“Price Agreement”) is created as a result of a qualifying and acceptable submission to Solicitation No. S-10700-00012203 and is between the State of Oregon (the “State”), acting by and through its Department of Administrative Services – State Procurement Services (“SPS”), on behalf of all Oregon state agencies and ORCPP members and [Contractor’s name], a [State of Incorporation] Corporation (“Contractor”).

Section 1 –Agreement

1.1 Parties

1.1.1 The only parties to this Price Agreement are SPS and Contractor.

1.1.2 AUTHORIZED PURCHASERS may purchase Goods or Services (“Goods or Services”), services (“Services”) or related products specified in Exhibit D by issuing ordering instruments creating separate contracts (“Contracts”). The only parties to each of these Contracts are the Authorized Purchaser and Contractor. SPS is an intended beneficiary of each Contract.

1.2 Process

1.2.1 AUTHORIZED PURCHASERS may order Goods or Services during the Term of this Price Agreement using any of the following ordering instruments:

1. DAS-approved Purchase Order form. See Sample as Exhibit A to this Price Agreement.

2. Authorized Purchaser’s standard form

3. State P-card of Oregon Transaction System [“SPOTS”] Card

Each ordering instrument must specify, at a minimum, the following details:

1. Price Agreement No. “XXXX”.

2. The specific Goods or Services and quantity of each item ordered.

3. The net price.

4. The requested delivery schedule.

5. The delivery location(s).

6. The invoicing address.

7. Authorized Purchaser’s authorized representative and relevant contact information including e-mail address.

1.2.2 A Contract created by an ordering instrument consists only of the terms specified or required by this Price Agreement. Additional, different or conflicting terms and conditions in any ordering instrument or any other form used by an Authorized Purchaser or Contractor may not vary the terms of a Price Agreement. Additional, different or conflicting terms and conditions on a purchase order or other form are of no effect.

1.2.3 Authorized Purchaser(s) who are State of Oregon agencies may issue Purchase Orders for any value under this Price Agreement.

1.2.4 Contractor shall accept ordering instruments from AUTHORIZED PURCHASERS complying with the provisions of this Price Agreement until the termination or expiration of this Price Agreement.

1.2.5 An ordering instrument deemed accepted by Contractor unless Contractor rejects the ordering instrument within two (2) business days after received. Contractor may reject an ordering instrument: i) using the same means used to deliver the ordering instrument, or ii) by e-mail, provided the email address is evident on the ordering instrument. Contractor shall specify the reason(s) for rejection.

1.2.6 Accepted ordering instruments establish separate Contracts between AUTHORIZED

PURCHASERS and Contractor and include the terms set forth in Sections 2 and 3. When used in Contracts, “Price Agreement” means specifically Price Agreement No. “XXXX”.

1.2.7 SPS is not obligated or liable under any Contract unless SPS is acting as the

Authorized Purchaser of the Goods or Services, Services or related products.

1.2.8 Nothing in this Price Agreement obligates SPS or AUTHORIZED PURCHASERS to purchase any Goods, Services or related products at any time during the Term of this Price Agreement.

1.2.9 Contractor shall reject an ordering instrument from any entity not identified as an Authorized

Purchaser under this Price Agreement unless an amendment executed prior to the order allowing such entity to purchase materials specifically listed in this Price Agreement.

1.2.10 Contractor shall reject any ordering instrument not meeting the requirements of this Price

Agreement.

1.2.11 SPS reserves the right to add locations to this Price Agreement as they become available by an agency of the State of Oregon.

1.3 Pricing

1.3.1 During the Term of this Agreement, Contractor shall offer Goods to Authorized Purchasers at prices that do not exceed the prices listed in Exhibit D – Goods, Prices and Locations.

1.3.2 Contractor understands and agrees the prices listed for each County are Not-to-Exceed (“NTE”) prices but may negotiate lower prices with an Authorized Purchaser for a specific location within each County. In such cases, the negotiated lower prices only apply to Contracts between Contractor and such Authorized Purchaser.

1.3.3 Contractor shall subtract from prices charged to Authorized Purchasers any unit price decrease achieved or gained by Contractor whether through the manufacturer or otherwise. Contractor shall give Authorized Purchasers the immediate benefit of the decrease. Contractor shall promptly notify the SPS Contract Administrator of the amount and effective date of the decrease.

1.3.4 Either party to this Price Agreement may request a price adjustment for some or all the Goods, subject to the restrictions specified below. Contractor may request unit price increases no more than once in any 12-month period, provided no such requests are made prior to October 1, 2026.

Contractor must submit a request to the Contract Administrator in writing at least 60 days prior to the proposed effective date of the increase. The request must show all proposed increases by line item and include, at a minimum, support documentation from the U.S. Bureau of Labor Statistics Producer Price Index and/or Consumer Price Index and documented increases in costs to Contractor. Other relevant manufacturers or industry data substantiating the increase is encouraged and accepted for consideration. SPS reserves the right in its sole discretion to determine whether to agree to a price increase. SPS reserves the right to require additional documentation or independently verify the basis and validity of any proposed price increase utilizing its internal price review and analysis protocols. SPS may accept or reject the requested increase or offer some lesser amount.

In addition, Contractor may request a price adjustment for some or all the Goods in connection with each extension of the Price Agreement pursuant to Section 1.5. Any such adjustment must have support documentation from the U.S. Bureau of Labor Statistics Producer Price Index and/or Consumer Price Index and documented increases in costs to Contractor. SPS reserves the right in its sole discretion to determine whether to agree to a price increase for an extension period. SPS reserves the right to require additional documentation or independently verify the basis and validity of any proposed price increase utilizing its internal price review and analysis protocols. SPS may accept or reject the requested increase or offer some lesser amount. In the event SPS offers some compromise amount or rejects the requested price increase, Contractor may elect to agree to the proposed extension period under those conditions or allow the Price Agreement to expire. However, Contractor has no right to receive, or claim for failure to receive, a price increase for any extension period.

Notwithstanding the foregoing, no more than one price increase will be allowed during any twelve-month period within the Term of the Price Agreement or extension period. Accordingly, if there has been a price adjustment during the 12-month period preceding the commencement of an extension period, any price adjustment agreed to for such extension period shall not take effect until a period of 12 months from the effective date of such prior adjustment has elapsed.

1.4 Contractor Reporting and Payment Requirements

Contractor must generate and submit to SPS, quarterly sales reports based on sales generated by Authorized Purchasers. Contractor must pay an administrative fee of $ .02/gallon (two cents per gallon) sold to any Authorized Purchaser. These Fees are to be included in the delivered price of each gallon. Below is a brief outline of these fees. Additional instructions and information provided in Exhibit C of this Price Agreement.

(1) Volume Sales Report (VSR) / Vendor Collected Administrative Fee (VCAF)

Contractor shall generate and submit to SPS a quarterly Volume Sales Report (“VSR”) detailing total dollar in sales generated by each Authorized Purchaser to SPS, along with a Vendor Collected Administrative Fee (“VCAF”) paid directly to SPS. The VCAF amount for this Price Agreement is equal to $ 0.02 cent per gallon sold, as documented in the VSR and paid quarterly.

1.5 Term of Agreement; Termination

1.5.1 The initial Term of this Price Agreement begins on the date this Price Agreement has been signed by SPS and Contractor, and all required approvals have been obtained (“Effective Date”), and terminates on the 4th anniversary of the Effective Date unless sooner terminated or extended as allowed in this Price Agreement. SPS has, in its sole discretion, the option to extend the Term of this Price Agreement for up to three additional, two-year extension periods, provided the maximum Term of this Price Agreement does not exceed 10 years. SPS will exercise the option to extend, if at all, by giving Contractor written notice no later than 30 calendar days before the expiration of the then-current term. The initial term, and all extension terms collectively, is considered the “Term” of this Price Agreement.

1.5.2 Upon termination or expiration of this Price Agreement, Contractor shall not accept new ordering instruments.

1.5.3 Termination of this Price Agreement also terminates any outstanding ordering instrument under which an Authorized Purchaser and Contractor agreed to have Contractor deliver specific quantities of Goods or Services on a pre-determined, future date or schedule. The intent is to terminate Blanket Purchase Order(s) or “BPOs”, if any exist at time of termination.

1.5.4 Except as provided in Section 1.5.3, termination of this Price Agreement does not terminate any right or obligation of a party under a Contract or ordering instrument accepted by Contractor before termination of this Price Agreement.

1.5.5 Parties’ Right to Terminate for Mutual Consent. This Price Agreement allows termination any time by mutual written consent of SPS and Contractor.

1.5.6 SPS Right to Terminate. SPS may, in its sole discretion, terminate this Price Agreement, in whole or in part, for any reason upon 30 Calendar Days’ written notice to Contractor.

1.6 Insurance

Contractor must obtain and maintain all insurance specified in Exhibit B for the Term of this Price Agreement and through the full performance of all Contracts entered into under this Price Agreement.

1.7 Miscellaneous

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

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

1.7.3 Amendment(s). No amendment of this Price Agreement is valid unless it is in writing and signed by both SPS and Contractor.

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

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

1.7.6 Force Majeure. Neither SPS nor Contractor will be held responsible for delay or default caused by fire, riot, acts of God, war, or any other cause not within the control of the party whose performance is interfered with, and which delay or default such party is unable to prevent by the exercise of reasonable diligence. SPS may terminate this Price Agreement upon written notice after determining whether such delay or default will reasonably prevent successful performance of this Price Agreement within a time period that is acceptable to SPS.

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

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

1.7.8 Notices. Except as otherwise expressly provided in this Price Agreement, any communications between the parties, or notices to be given under this Price Agreement, are effective only if given in writing by personal delivery, email or United States Postal Service, postage prepaid, to the Contract Administrator for Contractor or SPS at the address or number set forth below in Section 4, as applicable, or to such other addresses or numbers as either party may later indicate pursuant to this Section. Any communication or notice via the United States Postal Service is deemed given five (5) days after mailing. Any communication or notice by personal delivery is deemed given immediately upon such delivery. Any communication or notice by email is deemed given when the recipient, by an email sent to the email address for the sender or by a notice given by another method in accordance with this section, acknowledges having received that email, with an automatic “read receipt” not constituting acknowledgment of an email for purposes of this section.

1.7.9 No Third-Party Beneficiaries. SPS and Contractor are the only parties to this Price Agreement and are the only parties to enforce its terms. Nothing in this Price Agreement gives is intended to give, or will be construed to give or provide, any benefit or right, whether directly, indirectly, or otherwise, to third persons unless such third persons are individually identified by name herein and expressly described as intended beneficiaries of the terms of this Price Agreement.

This section is not intended to, and shall not, limit the rights and benefits of any Authorized Purchaser under Contracts or other ordering instruments entered into with Contractor pursuant to this Agreement.

1.7.10 Waiver. The failure of SPS to enforce any provision of this Price Agreement or the waiver of any violation or nonperformance of this Price Agreement in one instance does not constitute a waiver by SPS of that or any other provision nor is it a waiver of any subsequent violation or nonperformance. Such failure to enforce waiver, if made, is effective only in the specific instance and for the specific purpose given.

1.7.11 Certification of Compliance with Tax Laws. Contractor has complied with the tax laws of the State and the applicable tax laws of any political subdivision of the State. Contractor shall comply with all tax laws of the State and all applicable tax laws of any political subdivision of the State, for the term of this Price Agreement. For the purposes of this subsection, “tax laws” include: (i) all tax laws of the State, including but not limited to ORS 305.620 and ORS chapters 316, 317 and 318;

(ii) all tax provisions imposed by a political subdivision of the State that applied to Contractor, to Contractor’s property (whether tangible or intangible), operations, receipts, or income, or to Contractor’s performance of, or compensation for, any work performed by Contractor; (iii) all tax provisions imposed by a political subdivision of the State that applied to Goods or Services provided by Contractor; and (iv) all rules, regulations, charter provisions, or ordinances that implemented or enforced any of the foregoing tax laws or provisions.

Any failure to comply with the provisions of this subsection 1.7.11 constitutes a material default under this Price Agreement. Such default entitles SPS to terminate this Price Agreement and pursue and recover any and all damages arising from the default or termination of the Price Agreement, and to pursue any or all remedies available under this Price Agreement, at law, or in equity, including but not limited to:

• Termination of this Price Agreement, in whole or in part;

• Exercise of the right of setoff, and withholding of amounts otherwise due and owing to

Contractor, in an amount equal to State’s or Authorized Purchaser’s setoff right, without penalty; and

• Initiation of an action or proceeding for damages, specific performance, declaratory or injunctive relief.

SPS may recover any, and all, damages suffered as the result of Contractor's default under this subsection or under any other provision of this Price Agreement, including but not limited to direct, indirect, incidental and consequential damages, costs of cure, and costs incurred in securing replacement Goods or Services.

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

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

1.7.14 Performance Evaluations: SPS may conduct evaluations of Contractor’s performance during the

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

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

1.7.16 Pay Equity Compliance: If selected for award, Bidder shall submit to Agency a true and correct copy of an unexpired Pay Equity Compliance Certificate issued to the Bidder by the Oregon Department of Administrative Services.

For more information on Pay Equity Certification, visit https://www.oregon.gov/das/Procurement/Pages/PayEquity.aspx

1.7.17 Survival: All rights and obligations cease upon termination or expiration of this Price

Agreement, except for the rights and obligations and declarations which expressly or by their nature survive termination of this Price Agreement, including without limitation this Section 1.7.17, and provisions regarding warranties and liabilities, independent Contractor status and taxes and withholding, compensation, Contractor’s representations and warranties, control of defense and settlement, remedies, dispute resolution, order of precedence, maintenance and access to records, notices, severability, successors and assigns, third party beneficiaries, waiver, headings, and integration.

Section 2 – Standard Terms for Contracts under this Price Agreement

2.1 Contract Documents and Order of Precedence: The Contract consists of the ordering instrument and the provisions in Sections 2 and 3 of the Price Agreement. In the event of a conflict https://www.oregon.gov/das/Procurement/Pages/PayEquity.aspx between the ordering instrument and provisions in Sections 2 and 3, the provisions in Sections 2 and 3 take precedence.

2.2 Payment: Authorized Purchaser is solely responsible for payment under this Contract.

Contractor shall look solely to Authorized Purchaser for payment of all amounts due under this Contract. Subject to Authorized Purchaser’s acceptance of Goods or Services, payment is due from Authorized Purchaser within 45 calendar days after the date of the invoice.

2.3 Overdue Charges: At Contractor’s option, it may assess overdue account charges to Authorized Purchaser up to a maximum rate of two-thirds of one percent per month (8% per annum).

2.4 Demurrage Compensation: Contractor may apply for Demurrage Compensation if the Authorized Purchaser is responsible for undue delays in Contractor delivering Goods per the Contract requirements. In such cases, both parties will review the matter in good faith. If mutually agreed, Authorized Purchaser shall reimburse Contractor based on an hourly rate billable in less-than hourly increments. The duration of the delay and reimbursement method to be agreed Contractor and Authorized Purchaser on a case-by-case basis. The hourly rate used for purposes of Demurrage Compensation shall be $ . . Hourly rate fixed for the initial term of the Price Agreement. Rates may be decreased or increased every two years provided both parties agree.

2.5 Delivery: Delivery is complete when the purchased Goods are in the Authorized Purchaser’s fuel tanks. If Goods are not delivered within the terms and time frame cited in the Contract, substitute comparable products may be purchased by the Authorized Purchaser from another source and the Contractor shall be required to pay any additional costs incurred by the Authorized Purchaser in doing so.

Late or non-complying delivery may also result in termination of the Contract by the Authorized Purchaser.

2.6 Ordering Practices: Authorized Purchaser may require Contractor to comply with any of the following propane ordering methods:

a) KEEP FULL: When Authorized Purchaser chooses, Contractor may schedule deliveries at its convenience to ensure that there is always sufficient propane in the Authorized Purchaser’s tank or tanks provided the Authorized Purchaser approve scheduled deliveries, in advance, in writing.

b) ROUTINE SINGLE ORDERS: Deliveries during normal working hours and within three calendar days after receipt of order.

c) EMERGENCY: Deliveries must be made within 24 hours after notification of need.

Contractor may add a flat rate charge up to $150.00 per delivery to cover additional costs, if applicable. All emergency charges agreed to prior to delivery. Emergency charges must be a separate line item on the invoice.

Contractor shall provide a copy of the loading, meter or similar document certifying actual volume dispensed when delivery is complete.

2.8 SPILLS and SPILL CLEAN UP:

2.8.1 Contractor shall be solely responsible for remediation of the spillage area, and for all costs and damages resulting from such remediation, for all fuel spills that may occur during transit or unloading operations.

2.8.2 Contractor shall be knowledgeable of and shall comply with all federal, state and local laws, codes, regulations and ordinances applicable to fuel delivery and pollution prevention.

2.8.3 Contractor shall take all reasonable measures to prevent any spillage typically associated with Contractor’s equipment and shall utilize proper equipment to prevent fuel spillage during delivery (such as the use of drip buckets under hose fittings).

2.8.4 Contractor shall follow all posted spill prevention procedures at Authorized Purchaser’s fueling sites.

2.8.5 Contractor shall use wheel chocks, other physical barriers, or a warning system to prevent truck departure prior to complete disconnection of flexible or fixed fuel transfer lines.

2.8.6 Contractor shall inspect its vehicles prior to each departure to make a delivery for discharges from the lowermost drain and all outlets of such vehicles and shall remediate the cause of any such discharges prior to departure

2.8.7 Contractor shall immediately report and clean up any spillage and shall comply with any related requirements under applicable law, including, but not limited to, ORS 466.605 through 466.680. In the event of Contractor’s failure to do so, the Authorized Purchaser may take any or all corrective action deemed necessary to restore the impacted area to its original condition, and the Contractor shall be liable for all related costs, including any litigation and mitigation costs incurred to restore the impacted area or to recover such costs.

2.9 Payment Address: Payments by Authorized Purchaser must be sent to the address specified on

Contractor’s invoice.

2.10 Invoices: Contractor shall invoice Authorized Purchaser only after valid acceptance of Goods or Services has been confirmed in writing by Authorized Purchaser. Invoices must be sent to the address provided by Authorized Purchaser and must include, at a minimum, the following:

2.1.1 Price Agreement No.

2.1.2 Purchase Order No.

2.1.3 Quantity of Goods or Services

2.1.4 Unit Price of Goods or Services

2.1.5 Total Invoice Value

2.11 Prices: Contractor represents all prices for Goods or Services under this Contract are equal to or better than the prices listed in the Price Agreement.

2.12 Cancellation, Inspections and Acceptance: Authorized Purchaser may cancel an order as a whole or in part before the cancelled Goods or Services described in the order are delivered.

Authorized Purchaser has ten (10) calendar days from date of delivery of the entire order within which to inspect and accept or reject the Goods or Services. If Authorized Purchaser rejects the Goods or Services, Authorized Purchaser will provide Contractor with written notice of such rejection. Notice of rejection must include itemization of apparent defects, including but not limited to discrepancies between the Goods or Services and the applicable specifications or warranties (including variance from demonstrations or sample characteristics where demonstrations or samples have been provided), or otherwise nonconforming Goods or Services (including late delivery). If Authorized Purchaser elects to provide Contractor with an opportunity to cure the rejected Goods or Services, notice of rejection must also specify the period in which such cure must be completed.

Authorized Purchaser may elect to have Contractor deliver substitute conforming Goods or Services at no additional cost within 14 calendar days of Contractor’s receipt of notice of rejection or other acceptable timeline, if warranted, and agreed to by both parties.

If Goods or Services are rejected or the acceptance of such Goods or Services is revoked, Contractor shall refund any payments made regarding the rejected Goods or Services and shall, at Contractor’s sole cost and expense, remove the Goods or Services within seven (7) calendar days of Authorized Purchaser’s notice of rejection or revocation of acceptance.

Nothing contained in Section 2.12 precludes Authorized Purchaser from other remedies to which it may be entitled upon rejection, or revocation of acceptance, of Goods or Services.

2.13 Contractor’s Representations and Warranties:

2.13.1 Employee Status: Contractor warrants that it and its personnel are not “officers,” “employees,” or “agents” of Authorized Purchaser, as those terms are used in ORS 30.265.

2.13.2 Warranty on Materials, Design & Manufacture: Contractor represents and warrants that all Goods supplied are new, unused, of current production models and free from defects in materials, design and manufacture. Contractor further represents and warrants all Goods are in compliance and meet or exceed all specifications listed in Attachment D.

2.13.3 Warranty on Service Standards: Contractor warrants that all Services shall be performed in a good, workman-like manner in accordance with highest standards prevalent in the industry.

2.13.4 Warranty of Title: Contractor represents and warrants all Goods are free and clear of any liens or encumbrances and that Contractor has full legal title to the Goods. Contractor further warrants no other person or entity has any right, title or interest in the Goods, which is superior to, or infringes upon, the rights granted to the Authorized Purchaser upon acceptance of Goods.

2.13.5 Warranty on Safety and Health Requirements: Contractor represents and warrants that Goods or Services provided under this Contract comply with all applicable federal health and safety standards including, but not limited to, Occupational Safety and Health

Administration (OSHA) and all Oregon safety and health requirements, including but not limited to those of the Oregon Consumer and Business Services Department.

2.13.6 Manufacturer Warranty: Contractor shall have all manufacturer warranties covering the Goods and component parts, if any, transferred to the Authorized Purchaser and provide warranty documents to Authorized Purchaser at time of delivery at no charge.

2.13.7 Warranties Cumulative: The warranties set forth in Section 2.13 are in addition to, and not in lieu of, any other warranties provided under the Price Agreement or the Contract.

All warranties provided are cumulative and intended to afford Authorized Purchaser the broadest warranty protection available.

2.14 COMPLIANCE WITH APPLICABLE LAWS AND STANDARDS:

2.14.1 Contractor shall comply with all federal, state and local laws, regulations, and ordinances applicable to this Contract as adopted or amended from time to time.

2.14.2 STATUTORY TERMS: Authorized Purchaser’s performance under this Contract is conditioned upon Contractor’s compliance with the obligations intended for contractors under ORS 279B.220, 279B.225 (if applicable to this Contract), 279B.230 and 279B.235 (if applicable to this Contract), which are incorporated into this Contract by reference.

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

2.14.3 NONCOMPLIANT GOODS: In the event of a conflict between the specifications in this Contract and applicable federal or state law, the law prevails. Contractor shall make any modifications required to achieve compliance with applicable law. When Contractor is notified, or becomes aware, of any required modifications, Contractor shall immediately notify SPS and Authorized Purchaser.

2.14.4 RECALLED GOODS, SERVICES OR COMPONENTS: In the event any Goods, Services or component parts are recalled by a regulatory body or the manufacturer or discovered by Contractor not to be following the applicable specifications, Contractor shall immediately notify SPS and Authorized Purchaser of the recall or non-compliance and shall provide copies of the notice or other documentation. Upon notification, Authorized Purchaser may elect to do any of the following:

a) Cancel any portion of the ordering instrument.

b) Reject Goods or Services.

c) Revoke its acceptance of the Goods or Services.

d) Require Contractor to complete necessary modifications, where applicable, in a timely manner, at no charge to Authorized Purchaser.

e) Terminate the Contract.

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

2.15 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 with respect to the Contract. Authorized Purchaser may withhold final payment under the Contract until Contractor has met this requirement.

2.16 SAFETY DATA SHEET: Where applicable, Contractor shall provide Authorized Purchaser at time of delivery with a Safety Data Sheet (“SDS”) as defined by the Occupational Safety and Health Administration (OSHA) for any Goods provided under the Price Agreement, which may release or otherwise result in exposure to a hazardous chemical under normal conditions of use. In addition, Contractor must properly label, tag or mark such Goods. Additionally, Contractor shall deliver EPA labels and SDS information if available and as requested by Authorized Purchaser.

2.17 TIME IS OF THE ESSENCE: Time is of the essence for performance of Contractor’s obligations under this

Contract.

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

2.19 FUNDS AVAILABLE AND AUTHORIZED; PAYMENTS: If Authorized Purchaser is an agency of the State of

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

2.20 INDEPENDENT CONTRACTOR STATUS; RESPONSIBILITY FOR TAXES AND WITHHOLDING:

2.20.1 Contractor is an independent contractor. Although the Authorized Purchaser reserves the right (i) to determine (and modify) the delivery schedule for Goods or Services and (ii) to evaluate the quality of completed performance, Authorized Purchaser cannot and will not control the means or manner of Contractor’s performance. Contractor is responsible for determining the appropriate means and manner of performing any obligations required by this Contract.

2.20.2 Contractor is responsible for all federal and state taxes applicable to compensation or payments paid to Contractor under this Contract and, unless Contractor is subject to backup withholding, Authorized Purchaser will not withhold from such compensation or payments any amount(s) to cover Contractor’s federal or state tax obligations. Contractor is not eligible for any social security, unemployment insurance or workers’ compensation benefits from compensation or payments paid to Contractor under this Contract, except as a self-employed individual.

2.21 INDEMNIFICATION:

2.21.1 Contractor shall defend, save, hold harmless, and indemnify Authorized Purchaser, the

State of Oregon 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 Authorized Purchaser, the State of Oregon or any agencies thereof, or the agents, officials or employees of any of the foregoing, 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 default of this Contract, including without limitation any default 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 or Services. Authorized Purchaser or the State of Oregon will promptly notify Contractor in writing of any claim of which Authorized Purchaser, or the State becomes aware. Contractor’s obligations under this section do not extend to any claim solely caused by (i) the negligent or willful misconduct of Authorized Purchaser, or (ii) Authorized Purchaser’s modification of Goods or Services without Contractor’s approval and in a manner inconsistent with the purpose and proper usage of such Goods or Services.

2.21.2 The Oregon Attorney General must give written authorization to any legal counsel purporting to act in the name of, or represent the interests of, the State of Oregon or its officers, employees or agents prior to such action or representation. Further, the State of Oregon, 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) proposed counsel is not adequately defending or able to defend the interests of the State of Oregon, its officers, employees or agents; (iii) important governmental interests are at stake; or (iv) the best interests of the State of Oregon are served thereby. Contractor’s obligation to pay for all costs and expenses includes those incurred by the State of Oregon in assuming its own defense and that of its officers, employees, or agents under this section.

2.22 DEFAULT:

2.22.1 BY CONTRACTOR: Contractor is in default under this Contract if:

a) 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;

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

c) Contractor commits any default of any covenant, representation warranty, obligation or certification under this Contract, provided Contractor may cure the default within the period specified in Authorized Purchaser’s notice of default when Authorized Purchaser determines the default is curable by Contractor within a period that is acceptable to Authorized Purchaser.

2.22.2 BY AUTHORIZED PURCHASER: Authorized Purchaser is in default of this Contract if:

a) Authorized Purchaser fails to pay Contractor any amount pursuant to the terms of this Contract, and Authorized Purchaser fails to cure such failure within twenty (20) business days after delivery of Contractor’s notice of nonpayment or such longer period as Contractor may specify in such notice; or

b) Authorized Purchaser commits any default of any covenant, representation, warranty, or obligation under this Contract and such default is not cured within twenty (20) business days after delivery of Contractor’s notice of default or such longer period as Contractor may specify in such notice.

2.23 DEFAULT REMEDIES:

2.23.1 AUTHORIZED PURCHASER’S REMEDIES: If Contractor is in default under Section 2.22.1, in addition to the remedies afforded elsewhere in this Contract, Authorized Purchaser may recover all damages suffered as the result of Contractor’s default, including but not limited to direct, indirect, incidental and consequential damages, as provided in ORS 72.7110 to

72.7170. Authorized Purchaser may, at its option, pursue any or all the remedies available to it under this Contract and at law or in equity, including, but not limited to:

a) Termination of the Contract as provided in Section 2.24.

b) Withholding all monies due for invoiced Goods or Services that

Contractor is obligated but has failed to deliver or perform within any scheduled completion dates or has performed inadequately or defectively.

c) Initiation of an action or proceeding for damages, specific performance, declaratory or injunctive relief; and

d) Exercise of its right of setoff and withholding of monies otherwise due and owing in an equal amount to Authorized Purchaser’s setoff without penalty to Authorized Purchaser.

These remedies are cumulative to the extent the remedies are not inconsistent, and Authorized Purchaser may pursue any remedy or remedies singly, collectively, successively or in any order whatsoever.

2.23.2 CONTRACTOR’S REMEDIES: If Authorized Purchaser terminates this Contract, or if Authorized Purchaser is in default under Section 2.22.2 and whether or not Contractor elects to exercise its right to terminate this Contract under Section 2.24, Contractor’s sole remedy is a claim against Authorized Purchaser for the unpaid purchase price for Goods or Services delivered and accepted by Authorized Purchaser, less previous amounts paid and the amount of any claim(s) which Authorized Purchaser has against Contractor. If previous amounts paid to Contractor exceed the amount due to Contractor under this section, Contractor shall pay any excess to Authorized Purchaser upon written demand.

2.24 TERMINATION:

2.24.1 BY MUTUAL CONSENT: This Contract may be terminated at any time by mutual written consent of Authorized Purchaser and Contractor.

2.24.2 RIGHTS OF AUTHORIZED PURCHASER. Authorized Purchaser may, at its sole discretion, terminate a Contract or other ordering instrument for convenience with thirty (30) calendar days’ written notice. Authorized Purchaser may terminate a Contract or other ordering instrument immediately upon notice to Contractor, or at such later date as Authorized Purchaser may establish in such notice, upon the occurrence of any of the following events: (a) Authorized Purchaser fails to receive funding, appropriations, limitations, allotments, or other expenditure authority sufficient to allow Authorized Purchaser, in the exercise of its reasonable administrative discretion, to meet its payment obligations under this Contract; (b) federal or state laws, regulations, or guidelines are modified or interpreted in such a way so as to prohibit either the purchase of the Goods or Services by Authorized Purchaser under the Price Agreement, or Authorized Purchaser’s payment for such Goods or Services from the planned funding sources; or

(c) Contractor is in default under this Contract under Section 2.22.1. Upon receipt of written notice of termination, Contractor shall stop performance under this Contract if and as directed by Authorized Purchaser.

2.24.3 RIGHTS OF CONTRACTOR: Contractor may terminate a Contract with a minimum twenty (20) calendar-days written notice to Authorized Purchaser, if Authorized Purchaser is in default of the subject Contract as described in Section 2.22.2.

2.25 ACCESS TO RECORDS: Contractor shall retain, maintain and keep accessible all records relevant to this Contract (the “Records”) for a minimum of six (6) years. Longer periods may apply if or such longer if required by law following expiration, termination of 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 must be kept in accordance with Generally Accepted Accounting Principles (GAAP). During the record-retention period established in this section, Contractor shall permit SPS, Authorized Purchaser, duly authorized representatives and the federal government access to the Records at a reasonable time and place for purposes of examination and copying.

2.26 NOTICES: Except as otherwise expressly provided in this Contract, any communications between the parties, or notices given under this Contract, are effective only if given in writing by personal delivery, facsimile, email or United States Postal Service, postage prepaid, to the party’s authorized representative.

For Authorized Purchaser, the authorized representative and the address or number for notices or communications to given to that authorized representative are as identified in the ordering instrument or as later indicated by Authorized Purchaser pursuant to this section. For Contractor, the authorized representative and the address or number for notices or communications to given to that authorized representative are as identified in the Price Agreement or as later indicated by Contractor pursuant to this section. Any communication or notice via the United States Postal Service deemed given five (5) days after mailing. Any communication or notice by personal delivery deemed given immediately upon such delivery. Any communication or notice by email deemed given when the recipient, by an email sent to the email address for the sender or by a notice given by another method in accordance with this section, acknowledges having received that email, with an automatic “read receipt” not constituting acknowledgment of an email for purposes of this section.

2.27 ORDERING INSTRUMENTS; ACKNOWLEDGEMENTS: The parties acknowledge and agree, other than designation of quantities, types of Goods or Services, destination, dates and dates and scheduled delivery of other performances, purchase orders are for the convenience of the parties to initiate and confirm order of Goods or Services under this Contract. No other terms or conditions are of any force, effect or binding upon the parties.

2.28 GOVERNING LAW: This Contract is governed and construed in accordance with the laws of the State of

Oregon, without regard to principles of conflicts of laws.

2.29 VENUE; CONSENT TO JURISDICTION:

2.29.1 STATE CONTRACT VENUE; CONSENT TO JURISDICTION: Any claim, action, suit or proceeding (collectively, “Claim”) between an Authorized Purchaser that is an agency of the State of Oregon and Contractor that arises from or relates to this Contract shall be brought and conducted solely and exclusively within the Circuit Court of Marion County for the State of Oregon; provided, however, if a Claim must be brought in a federal forum, then unless otherwise prohibited by law it shall be brought and conducted solely and exclusively within the United States District Court for the State 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 forums are inconvenient. Nothing herein may be construed as a waiver of the State of Oregon’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.

ORCPP CONTRACT VENUE; CONSENT TO JURISDICTION: Any Claims between Contractor and an Authorized Purchaser other than an agency of the State of Oregon that arise from or relate to this Contract order must be brought and conducted solely and exclusively within the Circuit Court of the county in which such Authorized Purchaser resides, or at the Authorized Purchaser’s option, within such other county as the Authorized Purchaser is entitled under the laws of the relevant jurisdiction to bring or defend Claims. If any such Claim must be brought in a federal forum, then unless otherwise prohibited by law it must be brought and conducted solely and exclusively within the United States District Court for the District in which such Authorized Purchaser resides.

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 forums are inconvenient. Nothing herein may be construed as a waiver of Authorized Purchaser’s sovereign or governmental immunity, if any, whether derived from the Eleventh Amendment to the United States Constitution or otherwise, or of any defenses to Claims or jurisdiction based thereon.

2.30 SURVIVAL: All rights and obligations cease upon termination or expiration of this Contract, except for the rights and obligations and declarations which expressly or by their nature survive termination of this Contract, including without limitation this Section 2.30, and provisions regarding warranties and liabilities, independent Contractor status and taxes and withholding, compensation, Contractor’s representations…