ITB Attachment 3 Sample Price Agreement.pdf

ATTACHMENT #3

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STATE OF OREGON

PARKS AND RECREATION DEPARTMENT

Price Agreement #9219

Firewood and Delivery Services for Prineville Reservoir State Park

This price agreement (“Agreement”) is between the State of Oregon, acting by and through the Oregon

Parks and Recreation Department (“OPRD”), and [selected contractor] (“Contractor”).

RECITALS

OPRD issued Invitation to Bid 9219 and OregonBuys Bid #S-63400-00005858 (the “ITB”) seeking bids for the

Goods described in Section 5 below.

Contractor submitted its bid on [date]. Following OPRD’s evaluation of bids submitted, Contractor’s bid was selected for award.

OPRD and Contractor desire to enter this Agreement to establish the terms and conditions for future contracts for Goods.

Therefore, OPRD and Contractor agree as follows:

1. AGREEMENT EFFECTIVE DATE AND DURATION

This Agreement is effective on the date it is signed by OPRD and Contractor (“Effective Date”), and expires on (Enter DATE). Expiration shall not extinguish or prejudice OPRD’s right to enforce this Agreement with respect to any breach of a Contractor warranty or any default or defect in Contractor performance that has not been cured. The duration of this Agreement may be extended for additional time as agreed to by the parties.

2. PURPOSE OF AGREEMENT AND NONBINDING NATURE

The purpose of the Agreement is to establish the terms and conditions applicable to, and the general form of ordering instrument to be used for, contracts for Goods entered into between OPRD and Contractor according to section 6 below. This Agreement, by itself, is not a binding contract, and OPRD makes no promise or representation that OPRD will request any Goods from Contractor.

3. NON-EXCLUSIVE AGREEMENT

This is a non-exclusive Agreement. This Agreement is not a guarantee that any specific level of Goods are or will be required under this Agreement, nor does this Agreement constitute a promise that OPRD will enter into one or more Contracts with Contractor. Notwithstanding this Agreement, OPRD reserves the right to acquire Goods through any process authorized by law, or to provide the Goods itself.

4. AGREEMENT DOCUMENTS

This Agreement consists of the following documents, which are interpreted in the following order of precedence: (1) the Agreement less all exhibits; (2) Exhibit A, Contract Terms; (3) Exhibit B, Pricing, Specifications, and Special Provisions.

5. GENERAL DESCRIPTION OF GOODS

This Agreement is for firewood delivered to Prineville Reservoir State Park. (the “Park”) according to the provisions described in Exhibit B, Pricing, Specifications, and Special Provisions (the “Goods”).

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6. CONTRACTING PROCESS AND BINDING EFFECT

OPRD and Contractor may in the future enter into binding and enforceable contracts for Goods by OPRD sending Contractor an ordering instrument in the form of a standard OPRD purchase order by email or fax. Each purchase order must specify the particular Goods to be delivered, the required delivery date(s) and location(s), and the price for the Goods. Each purchase order must contain the following mandatory language: “This purchase is submitted pursuant to OPRD Price Agreement 9219. The terms of the Price

Agreement, including all its exhibits, are hereby incorporated by reference and shall apply to this purchase and shall take precedence over all other conflicting terms and conditions, express or implied.”

Contractor shall reject an ordering instrument that does not comply with the provisions of this

Agreement.

Contract means the purchase order and entire Price Agreement (with exhibits). Each purchase order issued according to this Agreement creates a separate contract between OPRD and Contractor that is enforceable according to its terms and independent of all other Contracts. A properly completed and signed purchase order creates a Contract upon the earlier of the date Contractor confirms in writing receipt of the purchase order or the date Contractor begins performance under the purchase order.

7. PRICE CHANGES

Following the initial term of the Agreement, OPRD and Contractor may negotiate price changes but no more often than once in a 12-month period. Contractor must submit to OPRD supporting documentation with any price change request. Revised pricing is not effective until added to this Agreement by amendment.

If the Parties are not able to agree on a price change, the Price Agreement may be terminated in accordance with Section 10, Termination. Notwithstanding the expiration of the Price Agreement, Contractor shall complete performance of all outstanding Contracts.

8. PAYMENT

8.1 OPRD will pay Contractor only for Goods that meet the specifications and requirements set forth in

Exhibit B and are delivered according to the applicable Contract.

8.2 Upon verification of delivery of firewood by OPRD, Contractor will present or mail to the Prineville

Reservoir management unit office, an invoice, which includes the date and location of delivery, quantity delivered, and total amount due. OPRD will pay Contractor within 30 days after OPRD has received a correct invoice and determined that Contractor has completed all required goods and services, and deliverables subject to the invoice.

9. INSURANCE

Contractor shall obtain and maintain the required insurance coverage throughout the term of this

Agreement and all Contracts. The types and amounts of required insurance are specified in Exhibit A, Contract Terms, Section 9, Insurance. Contractor shall obtain and maintain all required insurance in a form and with a surety satisfactory to OPRD.

10. TERMINATION

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

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10.2 OPRD’s Right to Terminate for Convenience. OPRD may, at its sole discretion, terminate this

Agreement, in whole or in part, upon 30 Calendar Days written notice to Contractor.

11. DEFINITIONS

In addition to the terms defined in this Agreement, all other capitalized terms used but not defined in this

Agreement are defined in the Attorney General’s Model Public Contract Rules (OAR Chapter 137), and if not defined there, then in the Public Contracting Code (ORS Chapters 279A, 279B and 279C).

12. AMENDMENTS

OPRD may amend this Price Agreement to the extent permitted by applicable statutes and administrative rules, including but not limited to OAR 137-047-0800. To be effective, an amendment to this Price Agreement must be in writing signed by the Parties and contain all approvals required by applicable law.

13. NOTICES

Any communications between the parties hereto or notices to be given hereunder shall be given in writing by e-mail, personal delivery of, facsimile transmission of, or mailing the same, postage prepaid, to

Contractor at the address or number set forth below and to OPRD at the address or number set forth below, or to such other addresses or numbers as either party may hereafter indicate pursuant to this

Section 13. Any communication or notice so addressed and mailed shall be deemed to be received five (5) calendar days after the date of mailing. Any communication or notice delivered by either e-mail or facsimile shall be deemed to be received when the transmitting computer or machine generates receipt of the transmission. To be effective against OPRD, such e-mail and facsimile transmissions must be confirmed by telephone notice to the OPRD Authorized Representative. Any communication or notice by personal delivery shall be deemed to be received when actually received by the appropriate Authorized

Representative.

13.1 Contractor’s Authorized Representative

Name, Title (PHONE)

Company (EMAIL)

Address

13.2 OPRD’s Authorized Representative

Name, Title (Phone)

Oregon Parks and Recreation Department (Email)

725 Summer Street NE, Suite C

Salem, OR 97301

14. AUTHORIZED SIGNATURES

XXXXXXX (Contractor) ________________________________________SAMPLE DO NOT SIGN_______________________________________________ By (Name/Title) Date

STATE OF OREGON acting by and through its Oregon Parks and Recreation Department (OPRD) By (Name/Title) Date

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Price Agreement #9219

EXHIBIT A

Contract Terms

1. GOODS PAYMENT OBLIGATION

OPRD will pay only for Goods that meet the specifications and performance standards specified in this

Contract. If OPRD determines that any Goods do not meet these specifications or performance standards, OPRD shall notify Contractor of OPRD’s rejection of the Goods. Upon receipt of notice of non-acceptance, Contractor shall remove and replace rejected Goods at Contractor’s sole expense within 3 days to ensure that the Goods meet such specifications or performance standards, and shall notify OPRD in writing that it has completed such modifications or replacements and re-tender them to OPRD. OPRD shall thereafter review the modified or replaced Goods within 5 business days of receipt of Contractor's delivery. Failure of the Goods to meet the specifications and performance standards after the re-tender following OPRD’s initial rejection of the Goods shall constitute a default by Contractor. Upon such default, OPRD may either

(i) notify Contractor of such default and instruct Contractor to modify or replace the Goods or (ii) notify

Contractor of such default and instruct Contractor to cease work, in which case Contractor shall refund to

OPRD all amounts paid by OPRD related to such Goods. Such refund is in addition to, and not in lieu of, any other remedies OPRD may have for Contractor’s default.

2. COMPENSATION AND RELATED PROVISIONS

2.1 Pricing

A. OPRD shall pay Contractor according to the pricing set forth in Exhibit B, Pricing, Specifications and

Special Provisions, for Goods delivered. OPRD will not pay Contractor any amounts in excess of the prices specified in Exhibit B, Pricing, Specifications and Special Provisions, for delivering the Goods.

B. If the rates are increased by amendment of this Agreement, the amendment must be fully effective before Contractor provides the Goods subject to the amendment.

C. OPRD shall not reimburse Contractor for any expenses under this Agreement.

2.2 Invoicing

A. Contractor shall submit invoices according to the invoicing schedule set forth in the Contract. If no invoicing schedule is set forth in the Contract, Contractor shall submit a single invoice to OPRD requesting payment for the full Contract amount only after all Goods have been delivered to and accepted by OPRD.

B. Contractor shall submit invoice(s) to the OPRD Contract Administrator identified in the Contract.

Contractor may submit invoices to OPRD by mail, e-mail or fax.

C. Contractor shall include with, or on, each invoice the Price Agreement number 9219 the OPRD purchase order number, and sufficient detailed information of the Goods delivered for OPRD to reconcile the invoice to the initial order and any amendments and the delivery tickets required in

Section 2.3(G) of Exhibit B, Pricing, Specifications and Special Provisions.

2.3 Payments. For purposes of this Contract, “Business Days” means Monday through Friday, 8:00 a.m. to

5:00 p.m., Pacific Time, excluding State of Oregon holidays.

A. OPRD will pay only for Goods accepted according to Section 1.

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B. OPRD will not pay for Goods delivered before the Contract Effective Date or after the termination or expiration of the Contract.

C. OPRD will pay Contractor within 30 days after OPRD has received a correct invoice and determined that Contractor has delivered and OPRD has accepted all required Goods subject to the invoice. OPRD shall send payment to Contractor at the address specified in the invoice.

D. OPRD will use best efforts to notify Contractor within ten (10) Business Days after receipt of each invoice if revisions or corrections to the invoice are necessary. If revisions or corrections are necessary, OPRD will pay Contractor no later than 30 days after receipt of the corrected invoice.

E. Any interest for overdue payment is subject to ORS 293.462.

F. The State of Oregon’s payment obligations under this Contract are conditioned upon OPRD’s receiving funding, appropriations, limitations, allotments, or other expenditure authority sufficient to allow OPRD, in the exercise of its reasonable administrative discretion, to meet its payment obligations under this Contract. Contractor is not entitled to receive payment under this

Contract from any part of Oregon state government other than OPRD. Nothing in the Agreement or this Contract is to be construed as permitting any violation of Article XI, section 7 of the Oregon

Constitution or any other law regulating liabilities or monetary obligations of the State of Oregon.

2.4. Title and Risk of Loss. Except in the case of latent defects, Contractor’s fraudulent activity or

Contractor’s warranty obligations, the risk of loss or damage to the Goods remains with Contractor until

Contractor has delivered the Goods to OPRD and OPRD has accepted those goods. Title to Goods passes to

OPRD upon delivery of the Goods to OPRD.

3. EFFECT OF CONTRACT EXPIRATION OR TERMINATION

Contract expiration does not terminate any other contract between OPRD and Contractor, or the

Agreement. If the Agreement expires or is terminated prior to Contract expiration, this Contract will remain in effect for the outstanding term of the Contract, unless this Contract is terminated earlier according to its terms. The terms of the Agreement will continue to be incorporated into this Contract and will remain in effect solely for such purpose.

4. REPRESENTATIONS AND WARRANTIES

The warranties specified in this section are in addition to, and not in lieu of, any other warranties provided. All warranties are cumulative and will be interpreted broadly to give OPRD the greatest warranty protection available. Contractor represents and warrants that:

4.1 Contractor has the authority to enter into and perform according to this Contract and that this Contract, when executed and delivered, is a valid and binding obligation of Contractor enforceable according to its terms;

4.2 Contractor has sufficient resources, including, without limitation, staffing and equipment, to provide the

Goods as ordered by OPRD at any time during the year, and especially during peak delivery seasons of

May through September.

4.3 All Goods will materially conform to the requirements and specifications set forth in this Contract, and will be free from defect that materially impairs their use; and

4.4 Except as described in this Contract, all Goods will be transferred to OPRD free and clear of any and all restrictions on or conditions of transfer and free and clear of any and all liens, claims, mortgages, security interests, liabilities, and encumbrances of any kind.

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5. COMPLIANCE WITH APPLICABLE LAWS AND STANDARDS

5.1 Contractor shall comply with all federal, state and local laws, regulations, and ordinances applicable to this Contract or to Contractor’s obligations under this Contract, as those laws, regulations and ordinances may be adopted or amended from time to time.

5.2 OPRD’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 by reference herein.

5.3 Contractor shall, to the maximum extent economically feasible in the performance of this Contract, use recycled paper (as defined in ORS 279A.010(1)(gg)), recycled PETE products (as defined in ORS

279A.010(1)(hh)), and other recycled plastic resin products and recycled products (as “recycled product” is defined in ORS 279A.010(1)(ii)).

6. AMENDMENTS

6.1 Contract Amendments. OPRD and Contractor may amend this Contract to: extend the expiration date of the Contract, add to or make changes in the Goods to be delivered and the related compensation due, make any other changes allowed by applicable Oregon statute and administrative rule, or make any changes required by changes in federal, state, or local law.

6.2 Amendment Method. No amendment to this Contract is effective unless it is in writing signed by OPRD and Contractor, and all approvals required by applicable law have been obtained.

7. TIME IS OF THE ESSENCE

Contractor agrees that time is of the essence in the performance of its obligations under this Contract.

8. FORCE MAJEURE

Neither OPRD nor Contractor are responsible for any failure to perform or for any delay in the performance of any obligation under this Contract caused by fire, riot, acts of God, terrorism, war, or any other cause which is beyond the breaching party's reasonable control. Contractor shall, however, make all reasonable efforts to remove or eliminate the cause of Contractor’s delay or breach and shall, upon the cessation of the cause, continue performing under this Contract. OPRD may terminate this Contract upon written notice to Contractor after OPRD reasonably determines that the delay or breach will likely prevent successful performance of this Contract.

9. INSURANCE

Contractor shall obtain at Contractor’s expense the insurance specified in this Exhibit B prior to performing under the Contract and shall maintain it in full force and at its own expense throughout the duration of the Contract, as required by any extended reporting period or tail coverage requirements, and all warranty periods that apply. Contractor shall obtain the following insurance from insurance companies or entities that are authorized to transact the business of insurance and issue coverage in

Oregon and that are acceptable to OPRD. Coverage shall be primary and non-contributory with any other insurance and self-insurance, with the exception of Professional Liability and Workers’ Compensation.

Contractor shall pay for all deductibles, self-insured retention and self-insurance, if any.

9.1 Workers Compensation. All employers, including Contractor, that employ subject workers, as defined in

ORS 656.027, shall comply with ORS 656.017 and provide workers' compensation insurance coverage for those workers, unless they meet the requirement for an exemption under ORS 656.126(2). Contractor shall require and ensure that each of its subcontractors complies with these requirements. If Contractor is

OregonBuys S-63400-00005858 7 of 17 a subject employer, as defined in ORS 656.023, Contractor shall also obtain employers' liability insurance coverage with limits not less than $500,000 each accident. If Contractor is an employer subject to any other state’s workers’ compensation law, Contactor shall provide workers’ compensation insurance coverage for its employees as required by applicable workers’ compensation laws including employers’ liability insurance coverage with limits not less than $500,000 and shall require and ensure that each of its out-of-state subcontractors complies with these requirements.

9.2 Commercial General Liability Insurance covering bodily injury and property damage in a form and with coverage satisfactory to OPRD. This insurance shall include personal and advertising injury liability, products and completed operations, contractual liability coverage for the indemnity provided under the

Contract, and have no limitation of coverage to designated premises, project or operation. Coverage shall be written on an occurrence basis in an amount of not less than $1,000,000 per occurrence. Annual aggregate limit shall not be less than $2,000,000.

9.3 Automobile Liability Insurance covering Contractor’s business use including coverage for all owned, non-owned, or hired vehicles with a combined single limit of not less than $1,000,000 for bodily injury and property damage. This coverage may be written in combination with the Commercial General

Liability Insurance (with separate limits for Commercial General Liability and Automobile Liability). Use of personal automobile liability insurance coverage may be acceptable if evidence that the policy includes a business use endorsement is provided.

9.4 Excess/Umbrella Insurance. A combination of primary and excess/umbrella insurance is acceptable to meet the minimum insurance requirements. If Excess/Umbrella coverage is used, the Certificate of

Insurance must include a list of the policies that fall under the Excess/Umbrella insurance. For example:

“The Excess/Umbrella policy is excess over General Liability, Auto Liability, etc.”

9.5 Additional Insured. The Commercial General Liability insurance and Automobile Liability insurance required under this Contract shall include the State of Oregon, its officers, employees and agents as

Additional Insureds but only with respect to Contractor's activities to be performed under this Contract.

Coverage shall be primary and non-contributory with any other insurance and self-insurance.

9.6 Certificate(s) of Insurance. Contractor shall provide to OPRD, at the following address, Certificate(s) of

Insurance for all required insurance before delivering any Goods and performing any Services required under this Contract.

Physical/Mailing Address: Name, Title Oregon Parks and Recreation Department

Procurement Division 725 Summer Street NE Suite C Salem, OR 97301 Email: @oprd.oregon.gov (preferred method)

The Certificate(s) must specify (i) the Price Agreement #9219 and (ii) all entities and individuals who are endorsed on the policy as Additional Insured (or Loss Payees). Contractor shall pay for all deductibles, self-insured retention and self-insurance, if any. Contractor shall immediately notify OPRD of any change in insurance coverage.

10. INDEPENDENT CONTRACTOR STATUS; RESPONSIBILITY FOR TAXES AND WITHHOLDING

10.1 Contractor shall provide all Goods as an independent contractor. Although OPRD has the right (i) to determine and modify the delivery schedule for the Goods to be provided and (ii) to evaluate the quality of the completed performance, OPRD cannot and will not control the means or manner of Contractor's performance. Contractor is responsible for determining the appropriate means and manner of mailto:margie.a.becker@oprd.oregon.gov

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Contractor’s performance under this Contract. Contractor certifies, represents and warrants that

Contractor is an independent contractor of OPRD under all applicable State and federal law. Contractor is not an "officer", "employee", or "agent" as those terms are used in ORS 30.265 of State or OPRD. Neither party shall make any statements, representations, nor commitments of any kind or to take any action binding on the other except as provided for herein or authorized in writing by the party to be bound.

10.2 If Contractor is currently performing work for State or the federal government, Contractor by signature to this Contract or acceptance of an electronic ordering device, represents and warrants: Contractor's performance of this Contract creates no potential or actual conflict of interest as defined by ORS 244 and that no rules or regulations of Contractor's employing agency (state or federal) would prohibit

Contractor's performance of this Contract.

10.3 Contractor is responsible for all federal and state taxes applicable to compensation or payments paid to

Contractor under this Contract, and OPRD will not withhold from compensation or payments to

Contractor any amount(s) to cover Contractor's federal or state tax obligations unless Contractor is subject to backup withholding. Contractor is not eligible for any social security, unemployment insurance or workers' compensation benefits from compensation or payments paid to Contractor under this

Contract.

10.4 If Contractor is a nonresident alien as defined in 26 USC § 7701(b)(1)(B), then Contractor shall, upon execution of this Contract, deliver to OPRD a completed and signed W-8 form,8233 form, or W-9 form, as applicable, from the Internal Revenue Service (“IRS”), as evidence that OPRD is not required by 26 USC

1441 to withhold part of Contractor's payment. Such forms are currently available at http://www.irs.gov.

OPRD may withhold payments to Contractor pending OPRD's receipt from Contractor of the applicable, completed and signed form. If OPRD does not receive the applicable, completed and signed form from

Contractor, or if the IRS provides notice to OPRD that Contractor's information on the form provided is incorrect, OPRD will withhold as federal income tax 30% of all amounts OPRD owes to Contractor under this Contract.

11. INDEMNIFICATION; LIMITATION OF LIABILITY

11.1 General Indemnity. Contractor shall defend, save, hold harmless, and indemnify State, its agencies, officers, directors, agents and employees from and against all claims, suits, actions, losses, damages, liabilities, costs and expenses of any nature whatsoever (“Claims”) resulting from, arising out of, or relating to the acts or omissions of Contractor or its officers, employees, subcontractors, or agents under this Contract.

11.2 State shall reasonably cooperate in good faith, at Contractor’s reasonable expense, in the defense of Claims, and Contractor shall select counsel reasonably acceptable to the Oregon attorney general to defend such Claims and shall bear all costs of such counsel. Counsel must accept appointment as a special assistant attorney general under ORS chapter 180 before counsel may act in the name of, or represent the interests of, State, its agencies, officers, employees or agents.

State may elect to assume its own defense with an attorney of its own choice and at its own expense at any time State determines important governmental interests are at stake. Subject to the limitations noted above, Contractor may defend such Claims with counsel of its own choosing provided that no settlement or compromise of any such Claims shall occur without the consent of

State, which consent shall not be unreasonably withheld, conditioned or delayed.

11.3 Except for liability arising out of or related to (i) section 11.1 or (ii) claims for personal injury, including death, or damage to real property or tangible personal property or violation of the obligations of confidentiality set forth in section 17, arising from the negligence, reckless conduct http://www.irs.gov/

OregonBuys S-63400-00005858 9 of 17 or intentional acts of Contractor, its officers, employees or agents, Contractor's liability for damages to the State for any cause whatsoever is limited to the not-to-exceed compensation amount under this Contract.

12. ASSIGNMENT OF ANTITRUST RIGHTS

12.1 Contractor irrevocably assigns to State any claim for relief or cause of action which Contractor now has or which may accrue to Contractor in the future by reason of any violation of 15 U.S.C. § 1-

15 or ORS 646.725 or ORS 646.730, in connection with any Goods provided to Contractor for the purpose of carrying out Contractor’s obligations under this Contract, including, at State’s option, the right to control any such litigation on such claim for relief or cause of action.

12.2 Contractor shall require any subcontractors hired to perform any of Contractor’s duties under this Contract to irrevocably assign to State, as third party beneficiary, any right, title or interest that has accrued or which may accrue in the future by reason of any violation of 15 U.S.C. § 1-15 or

ORS 646.725 or ORS 646.730, in connection with any Goods provided to the subcontractor for the purpose of carrying out the subcontractor’s obligations to Contractor in pursuance of this

Contract, including, at State’s option, the right to control any such litigation on such claim for relief or cause of action.

13. EVENTS OF BREACH

13.1 Breach by Contractor. Contractor breaches 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 its obligations under this Contract and Contractor has not obtained the license or certificate within 10 business days after OPRD delivers notice of breach to Contractor or a longer period as OPRD may specify in the notice; or

C. Contractor commits any material breach of any covenant, warranty, obligation or certification under this Contract, fails to perform its obligations under this Contract within the time specified or any extension of that time, and Contractor fails to cure the breach within 3 business days after OPRD delivers notice of breach to Contractor or a longer period as OPRD may specify in the notice.

D. OPRD may at their sole discretion immediately terminate this contract if they have notified the

Contractor of more than one breach of contract during the duration of the contract.

13.2 Breach by OPRD. OPRD breaches this Contract if:

A. OPRD fails to pay Contractor any amount pursuant to the terms of this Contract and fails to cure the failure to pay within 30 calendar days after Contractor delivers notice of breach to OPRD or a longer period as Contractor may specify in the notice; or

B. OPRD commits any material breach of any covenant, warranty, or obligation under this Contract, fails to perform its obligations hereunder within the time specified or any extension thereof, and OPRD fails to cure the breach within 30 calendar days after Contractor delivers notice of breach to OPRD or a longer period as Contractor may specify in the notice.

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14. REMEDIES

14.1 State's Remedies. If Contractor is in breach under section 13, then State may, at OPRD’s option, pursue any or all of the remedies available under this Contract and at law or in equity, including, but not limited to:

A. Termination of this Contract under section 15;

B. Withholding payment of all amounts in Contractor’s invoices for Goods that Contractor is obligated to but has failed to deliver 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; or

D Exercise of the right of setoff, and withholding of amounts otherwise due and owing to Contractor in an amount equal to State’s setoff right, without penalty.

These remedies are cumulative to the extent the remedies are not inconsistent, and State may pursue any remedy or remedies singly, collectively, successively or in any order whatsoever. If it is determined for any reason that Contractor was not in breach under section 13, the rights and obligations of the parties shall be the same as if this Contract was terminated pursuant to section 15.

14.2 Contractor's Remedies. If OPRD terminates this Contract under section 15.1, or if OPRD is in breach under section 13 and whether or not Contractor elects to exercise its right to terminate this Contract under section 15.2, Contractor's sole remedy is a claim against OPRD for unpaid invoices for Goods delivered and accepted by OPRD, less any claims OPRD has against Contractor.

14.3 Damages. Neither party is liable to the other for any indirect, consequential, special, incidental, reliance, or punitive damages of any kind or nature whatsoever (including, but not limited to any lost profits, lost revenues, lost savings, or harm to business), regardless of the foreseeability thereof. Each party hereby releases the other party, its subsidiaries and affiliates, and their respective officers, directors, managers, employees, and agents from any such claim.

14.4 Attorneys' Fees. Except for defense costs and expenses pursuant to section 11, neither OPRD nor

Contractor is entitled to recover attorney's fees, court and investigative costs, or any other fees or expenses associated with pursuing a remedy for damages arising out of or relating to this Contract.

15. TERMINATION

15.1 OPRD

Contractor shall stop performance under this Contract as directed by OPRD in any written notice of termination delivered to Contractor under this section 15.1.

A. OPRD may, at its sole discretion, terminate this Contract without cause upon 30 days written notice by OPRD to Contractor.

B. OPRD may, in its sole discretion, terminate this Contract, immediately upon notice to Contractor, or at a later date as OPRD may establish in the notice, upon the occurrence of any of the following events:

i) OPRD fails to receive funding, appropriations, limitations, allotments or other expenditure authority at levels sufficient to pay for the Goods or the Services; or

ii) Federal or state laws, regulations, or guidelines are modified or interpreted in a way that either the purchase of Goods or Services by OPRD under this Contract is prohibited, or OPRD is prohibited from paying for the Goods or the Services from the planned funding source.

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C. OPRD may terminate this Contract upon written notice to Contractor, or at a later date as OPRD may establish in the notice, if Contractor is in breach under section 13.

15.2 Contractor. Contractor may terminate this Contract upon 30 days written notice to OPRD, or at a later date as Contractor may establish in the notice, if OPRD is in breach pursuant to section 13.

15.3 Effect of Termination. Contract termination shall not extinguish or prejudice OPRD’s right to enforce this Contract with respect to any breach of a Contractor warranty or any default or defect in Contractor’s performance that has not been cured. Contract termination, for any reason, does not terminate any other contract between OPRD and Contractor, or the Agreement. If the Agreement is terminated prior to

Contract termination, this Contract will remain in effect for the outstanding term of the Contract, unless terminated earlier according to its terms. The terms of the Agreement will continue to be incorporated into this Contract and will remain in effect solely for such purpose.

15.4 Payment. In the event this Contract is terminated by OPRD for any reason, except for Contractor breach, OPRD will, consistent with section 14.2, compensate Contractor for all accepted Goods delivered to OPRD per section 1.

16. ACCESS TO RECORDS

Contractor shall retain, maintain, and keep accessible all records relevant to the Agreement and this

Contract ("Records") for minimum of six (6) years, or a longer period as may be required by applicable law, following Contract termination or full performance, or until the conclusion of any audit, controversy or litigation arising out of or related to the Agreement or this Contract, whichever ending is later.

Contractor shall maintain all financial Records according to Generally Accepted Accounting Principles.

During this Record-retention period, Contractor shall permit State, its duly authorized representatives, and the federal government access to the Records at reasonable times and places for purposes of examination and copying.

17. CONFIDENTIAL INFORMATION

To the extent this Contract requires OPRD to keep any Contractor materials or information confidential, Contractor acknowledges and agrees that OPRD’s obligations to do so are subject to the Oregon Public

Records Laws, ORS 192.410 through ORS 192.505.

18. NOTICES

Except as otherwise expressly provided in this Contract, any communications between the parties hereto or notices to be given hereunder shall be given in writing by e-mail, personal delivery of, facsimile transmission of, or mailing the same, postage prepaid, to Contractor at the address or number set forth below and to OPRD at the address or number set forth below, or to such other addresses or numbers as either party may hereafter indicate pursuant to this Section 18. Any communication or notice so addressed and mailed shall be deemed to be received five (5) calendar days after the date of mailing. Any communication or notice delivered by either e-mail or facsimile shall be deemed to be received when the transmitting computer or machine generates receipt of the transmission. To be effective against OPRD, such e-mail and facsimile transmissions must be confirmed by telephone notice to the OPRD Contract

Administrator. Any communication or notice by personal delivery shall be deemed to be received when actually received by the appropriate authorized representative.

18.1 Contractor’s Authorized Representative

To be completed upon award of price agreement.

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18.2 OPRD’s Contract Administrator

Prineville Reservoir State Park 19020 SE Parkland Dr Prineville, OR 97754 Phone #541- @oprd.oregon.gov

19. GOVERNING LAW

This Contract and the Agreement are governed by and construed according to the laws of State of Oregon, without regard to principles of conflicts of laws.

20. VENUE; CONSENT TO JURISDICTION

Any claim, action, or suit (collectively, “Proceeding”) between State and Contractor that arises from or relates to the Agreement or this Contract will be brought and conducted within the Circuit Court of the

State of Oregon for Marion County; provided, however, if a Proceeding must be brought in a federal forum, then unless otherwise prohibited by law, it will be brought and conducted within the United States

District Court for the District of Oregon. CONTRACTOR HEREBY CONSENTS TO THE IN PERSONAM

JURISDICTION OF THESE COURTS AND WAIVES ANY OBJECTION TO VENUE IN THESE COURTS AND

ANY CLAIM THAT THE FORUM IS AN INCONVENIENT FORUM. Nothing in these provisions shall be construed as a waiver of State's sovereign or governmental immunity, whether derived from the Eleventh

Amendment to the United States Constitution or otherwise, or a waiver of any defenses to Proceedings or jurisdiction based thereon.

21. SUBCONTRACTS; ASSIGNMENT; SUCCESSORS

21.1 Subcontracts

A. Approval of Subcontracts. Contractor shall not enter into any subcontracts for any Goods required under this Contract without prior written notice to OPRD.

B. Subcontractor Obligations. In addition to any other provisions OPRD may require, Contractor shall include in any permitted subcontract provisions to ensure that OPRD will receive the benefit of subcontractor’s performance as if the subcontractor were Contractor with respect to section 4, Representations and Warranties; section 5, Compliance with Applicable Laws and Standards; section

7, Time is of the Essence; section 9, Insurance; section 11, Indemnification; Limitation of Liability;

section 12, Assignment of Antitrust Rights; section 16, Access to Records; section 17, Confidentiality;

and section 21, Subcontracts; Assignment; Successors.

C. Contractor Obligations. OPRD’s consent to any subcontract shall not relieve Contractor of any of its duties or obligations under this Contract.

21.2 Contractor shall not assign, delegate or transfer any of its rights or obligations under this Contract without State’s prior written consent. OPRD’s written consent does not relieve Contractor of any obligations under this Agreement or any Contract, and any assignee, transferee, or delegate is considered

Contractor’s agent.

21.3 The provisions of this Contract are binding upon, and inure to the benefit the parties and their respective successors and permitted assigns, if any.

mailto:@oprd.oregon.gov

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22. THIRD PARTY BENEFICIARIES

State and Contractor are the only parties to this Contract and are the only parties entitled to enforce the terms of this Contract. Nothing in this Contract gives, is intended to give, or will be construed to give or provide any benefit or right not held by or made generally available to the public, whether directly, indirectly or otherwise, to third persons unless the third persons are individually identified by name herein and expressly described as intended beneficiaries of the terms of this Contract. OPRD is an intended beneficiary of the terms of this Contract.

23. SEVERABILITY

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

24. COUNTERPARTS

This Contract may be executed in several counterparts, all of which when taken together constitute one agreement binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. Each copy of this Contract so executed constitutes an original.

25. SURVIVAL

In addition to all provisions which by their nature extend beyond Contract termination or full performance, the following provisions remain in effect beyond any contract termination or full performance: section 2.3, Payments; subsection 4.4 of section 4, Representations and Warranties;

subsection 10.3 of section 10, Independent Contractor Status; Responsibility for Taxes and Withholding;

section 11, Indemnification, Limitation of Liability; section 12, Assignment of Antitrust Rights; section 14, Remedies; subsections 16.3 and 16.4 of section 15, Termination; section 16, Access to Records; section

16, Confidential Information, section 19, Governing Law; section 20, Venue; Consent to Jurisdiction;

section 22, Third Party Beneficiaries; Section 25, Survival.

26. WAIVER

No waiver of or consent to terms of this Contract binds either party unless in writing and signed by OPRD and Contractor, and all necessary approvals have been obtained. Waivers and consents are effective only in the specific instance and for the specific purpose given. The failure of either party to enforce any provision of this Contract is not a waiver by such party of that or any other provision.

27. INTEGRATION AND MERGER

This Contract (including the Purchase Order, the Price Agreement and Price Agreement Exhibits) and its attachments constitute the entire agreement between the parties on the subject matter thereof. There are no understandings, agreements, or representations, oral or written, not specified herein regarding this

Contract.

28. CONTRACTOR CERTIFICATIONS

The undersigned, if this Contract is a signed hard copy, or the individual accepting and fulfilling this

Contract, if it is in a form other than hard copy (together, “Contractor Representative”), certifies under penalty of perjury both individually and on behalf of Contractor that:

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28.1 The undersigned is a duly authorized representative of Contractor, has been authorized by Contractor to make all representations, attestations, and certifications contained in this Contract and to execute this

Contract on behalf of Contractor;

28.2 The undersigned is authorized to act on behalf of Contractor and that Contractor is, to the best of the undersigned’s knowledge, not in violation of any Oregon tax laws, including without limitation, those tax laws listed in ORS 305.380(4), namely ORS Chapters 118, 314, 316, 317, 318, 320, 321 and 323 and

Sections 10 to 20, Chapter 533, Oregon Laws 1981, as amended by Chapter 16, Oregon Laws 1982 (first special session); the elderly rental assistance program under ORS 310.630 to 310.706; and any tax provisions imposed by a political subdivision of the State of Oregon;

28.3 To the best of the undersigned’s knowledge, Contractor has not discriminated against and will not discriminate against minority, women or emerging small business enterprises certified under ORS

200.055 in obtaining any required subcontracts;

28.4 Contractor and Contractor’s employees and agents are not included on the list titled “Specially Designated

Nationals and Blocked Persons” maintained by the Office of Foreign Assets Control of the United States

Department of the Treasury and currently found at http://www.treas.gov/offices/enforcement/ofac/sdn/t11sdn.pdf;

28.5 Contractor is bound by and will comply with all requirements, terms and conditions contained in this

Contract; and

28.6 Contractor is not a nonresident alien as defined in 26 USC § 7701(b)(1).

http://www.treas.gov/offices/enforcement/ofac/sdn/t11sdn.pdf

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Price Agreement #9219

EXHIBIT B

Pricing, Specifications, and Special Provisions

1. PRICING

OPRD shall pay Contractor for Goods provided under a Contract at the prices not to exceed those specified in this Section 1.

Pricing for Goods to be inserted upon selection of price agreement contractor based on the selected bid.

2. SPECIFICATIONS

Contractor shall provide firewood according to the following specifications.

2.1 Firewood. All firewood must be:

A. Natural wood, non-treated natural wood power poles and kiln dried wood. Presto-style logs, pressure-treated wood, treated-power poles, milled lumber, planed wood, manufacture wood, and any other forms of non-natural, or treated wood are not acceptable.

B. Fully seasoned, free of rot and mold, and dry with a moisture content of less than 20%, verifiable by end grain testing with a digital moisture meter of OPRD’s choice. OPRD may refuse any pallet when mold or rot is found or that is found to have wood that exceeds the 20% moisture reading. Contractor shall remove the problem pallet and deliver a replacement within three business days at the days and times specified for delivery at no additional cost to OPRD.

C. The deadly Emerald Ash Borer has decimated ash tree populations around the country and is now in

Oregon. The invasive species wipes out entire ash tree populations in as little as six years once detected. In order to curb the movement of this insect around the state, acceptable fire wood shall;

• Not contain ash species of any type unless,

• Ash wood is certified USDA heat treated to the T314-a standards, (60° C/140° F for 60 minutes) as described in the USDA APHIS Treatment Manual.

2.2 Kindling Bundles. All kindling bundles must be:

A. Bundles may vary from approximately 3/8” x 1.5” to ¾” x 3/4” in size.

B. Must be dry and ready to burn.

C. Bundles must be dense, neat, consistent in appearance, tightly wrapped, and clean.

2.3 Packaging. Firewood must be provided in bundles. Each bundle must:

A. Be no less than one cubic foot in volume, tightly packed with minimal air space between pieces;

B. Contain pieces of firewood with mixed sizes that are no more than 18 inches in length, no shorter than

16 inches; and no more than six inches in diameter and no less than three inches in diameter.

C. Contain at least two pieces of six-inch diameter firewood; and contain at least 5 pieces of wood.

D. Be securely bound with twine, rubber bands, or minimal shrink-wrapping so as to prevent the bundle from losing wood when handled.

2.4 Delivery

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A. Contractor shall deliver firewood to the location(s) and according to the delivery schedule set forth in the purchase order.

B. Due to limited space in the Park, Contractor’s overall delivery vehicle and equipment combined cannot exceed fifty-three feet (53’) tall.

B. Unless otherwise specified in the purchase order, Contractor shall deliver firewood within five (5) business days from date of delivery requested and all deliveries must be made between 8:00 AM and

3:00 PM, Monday through Friday. OPRD shall be allowed up to six (6) emergency firewood deliveries each year. Emergency firewood orders must be delivered by 2 PM within two (2) day following the request.

C. Each load of firewood delivered to the Park will be no less than 400 bundles and not more than 500 bundles unless a smaller delivery is approved by the Park Manager.

D. Bundled firewood must be delivered on pallets containing a minimum of 40 bundles and a maximum of 50 bundles per pallet. The bundled palletized firewood must remain on the pallet(s) and placed directly into the designated storage area(s).

E. Bundled firewood must be firmly secured on the pallets with straps or minimal netting or bands to reduce plastic waste and allow moisture to escape.

F. Bundled firewood must be delivered on pallets containing approximately 50 to 70 bundles per pallet.

Park staff will unload palletized firewood using the Park’s forklift from the Contractors delivery vehicle. It is the Contractor’s responsibility to ensure that the product is stacked and packaged to allow the park staff to remove and store the firewood safely with the equipment available.

G. Contractor’s delivery driver shall provide a delivery ticket for each delivery to the OPRD Authorized

Representative or designee at time of delivery.

H. Unless specifically authorized by the OPRD Authorized Representative or designee, Contractor shall not block any roadways in the Park, including without limitation Park entrances and exits. During deliveries, Contactor shall place safety cones in their work area to keep visitors clear.

3. SPECIAL PROVISIONS

3.1 Contractor’s Responsibilities. The following provisions apply to Contractor’s performance under a

Contract:

A. Contractor shall comply with the provisions of OAR 603-052-1080 Firewood Restrictions To Prevent

Transportation Of Invasive Species.

B. Contractor, and its employees, officers, agents, and subcontractors, if any, shall access the Park for the sole purpose of completing performance of the Contract. Contractor, and its employees, officers, agents, and subcontractors, if any, shall not handle, move, remove, or otherwise disturb any OPRD property not related to the performance of the Contract.

C. Contractor shall not permit a spill or release of, or dispose of, oil, gas, or hazardous materials or substances on OPRD property. In the event of such incident, Contractor shall notify the OPRD

Authorized Representative for the Contract and all other authorities as applicable. Contractor shall correct any such conditions and provide proof of all required remediation and approvals by government agencies. Contractor shall make available to OPRD all records and documentation pertaining to such incidents.

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D. Contractor shall immediately notify the OPRD Authorized Representative for the Contract, or designee, by phone or in person, when an unusual occurrence, malfunction, or property damage occurs or is noted. Contractor shall follow up within 24 hours with a written report submitted to the

OPRD…