RFPAttA_PriceAgreement.pdf

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ATTACHMENT A – SAMPLE PRICE AGREEMENT

STATE OF OREGON

PRICE AGREEMENT [PA NUMBER]

FOR

PREFABRICATED BUILDINGS

BETWEEN

STATE OF OREGON

DEPARTMENT OF ADMINISTRATIVE SERVICES

Price Agreement Contract Administrator: Kelly Mann, State Procurement Analyst

Address: 1225 Ferry Street SE, Salem, OR 97301 Phone: 971-349-2117 Email: Kelly.Mann@DAS.Oregon.gov

AND

[CONTRACTOR NAME]

Contract Administrator: [Name, Title] Address: [Street Address] Phone: [Phone] Email: [Email] mailto:Kelly.Mann@DAS.Oregon.gov

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TABLE OF CONTENTS

SECTION 1: AGREEMENT

1.1 PARTIES

1.2 DEFINITIONS

1.3 TERM OF AGREEMENT

1.4 TERMINATION OF AGREEMENT

1.5 ORDERING INSTRUMENTS

1.6 PRICES

1.7 INSURANCE

1.8 MISCELLANEOUS

SECTION 2: STANDARD TERMS FOR CONTRACTS UNDER THIS AGREEMENT

2.1 CONTRACT DOCUMENTS; ORDER OF PRECEDENCE

2.2 PAYMENT

2.3 OVERDUE CHARGES

2.4 PAYMENT ADDRESS

2.5 INVOICES

2.6 PRICES

2.7 CANCELLATION, INSPECTIONS AND ACCEPTANCE

2.8 REPRESENTATIONS AND WARRANTIES

2.9 COMPLIANCE WITH APPLICABLE LAWS AND STANDARDS

2.10 FOREIGN CONTRACTOR

2.11 SAFETY DATA SHEET

2.12 TIME IS OF THE ESSENCE

2.13 FORCE MAJEURE

2.14 FUNDS AVAILABLE AND AUTHORIZED

2.15 INDEPENDENT CONTRACTOR STATUS; RESPONSIBILITY FOR TAXES AND WITHHOLDING

2.16 INDEMNIFICATION

2.17 EVENTS OF DEFAULT

2.18 REMEDIES

2.19 TERMINATION

2.20 ACCESS TO RECORDS

2.21 NOTICES

2.22 ORDERING ACKNOWLEDGEMENTS

2.23 GOVERNING LAW

2.24 VENUE; CONSENT TO JURISDICTION

2.25 SURVIVAL

2.26 SEVERABILITY

2.27 ASSIGNMENTS, SUBCONTRACTS, AND SUCCESSORS

2.28 MERGER CLAUSE; AMENDMENT; WAIVER

2.29 ASSIGNMENT OF ANTITRUST RIGHTS

SECTION 3: SPECIAL TERMS FOR CONTRACTS UNDER THIS AGREEMENT

SECTION 4: SIGNATURE OF CONTRACTOR’S DULY AUTHORIZED REPRESENTATIVE

SECTION 5: SIGNATURE OF AGENCY

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LIST OF EXHIBITS

EXHIBIT A DESCRIPTION OF THE GOODS AND PRICES

EXHIBIT A-1 PREFABRICATED BUILDING SPECIFICATIONS

EXHIBIT B PURCHASE ORDER FORM

EXHIBIT C INSURANCE REQUIREMENTS

EXHIBIT D – FEDERAL TERMS AND CONDITIONS

EXHIBIT E – VENDOR COLLECTED ADMINISTRATIVE FEES AND VENDOR SUBMISSION

FORM.

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This Price Agreement (“Agreement’) is between the State of Oregon, acting by and through its Department of Administration, (“Agency”) and [insert Contractor’s name], a [insert state of incorporation] (“Contractor”).

During the term of this Price Agreement, Contractor agrees to provide prefabricated buildings, including delivery and offloading of those buildings, ordered by Authorized Purchasers throughout the state in accordance with the terms and conditions of this Price Agreement using authorized Ordering Instruments (defined in Section 1.5, below), which will create valid contracts under this Price Agreement.

AGREEMENT

1.1 PARTIES

The only parties to this Agreement are Agency and Contractor.

1.2 DEFINITIONS

“Agency” means the Department of Administrative Services.

“Agreement” or "Price Agreement" means this agreement between Contractor and Agency under which Contractor agrees to hold prices, terms and conditions firm for a specified period of time.

“Authorized Purchasers” means the State of Oregon agencies, boards, commissions and OrCPP members, all of which are allowed to make purchases under this Price Agreement.

“Business Day” means Monday through Friday, 8:00 a.m. to 5:00 p.m., Pacific Time, excluding State of Oregon holidays and business closure days.

“Calendar Day” means contiguous days.

"Contract" means the entire agreement between Contractor and Agency, comprised of a signed Ordering Instrument and this Price Agreement, including any exhibits and amendments.

“Contractor” means the business entity entered into this Price Agreement to provide the Goods and Services as outlined in this Price Agreement.

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

"Goods" means the individual items described in Exhibits A and A-1.

“OrCPP” means the Oregon Cooperative Procurement Program members.

“Ordering Instrument” means the Purchase Order form, and more specifically, Exhibit B of this Price Agreement.

“Protected Class” means a group of persons distinguished by race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability or age.

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"Services" means the services described in Exhibit A to be performed by Contractor under a Contract that are incidental to the purchase of Goods, including delivery and offloading.

“Site” means the location at which the prefabricated building(s) will be delivered and offloaded.

"Specifications" means the specific attributes of the Goods to be purchased or Services to be provided, if any, as described in Exhibit A-1.

"State" means the State of Oregon.

“VCAF” means Vendor Collected Administrative Fee

“VSR” means Volume Sales Report

1.3 TERM OF AGREEMENT

The initial term of this Agreement begins on the date this Agreement has been signed by Agency and Contractor and all required approvals have been obtained (the “Effective Date”) and ends on the second anniversary of the Effective date unless sooner terminated or extended as provided in this Agreement. Agency has the option to extend this Agreement for four (4) consecutive two-year terms. If an extension is desired, Agency will send Contractor a written notice exercising its option to extend approximately 30 Calendar Days before the expiration of the then-current term. The initial term and all extension terms are collectively referred to as the “Term” of this Agreement.

1.3.1 One month extension option: Notwithstanding the foregoing, DASPS reserves the right, in its sole discretion, to extend the Price Agreement for a maximum of one (1) calendar month beyond the end of any term. DASPS will notify Contractor in writing of the one-month extension prior to the expiration of the then current term.

Consecutive one-month extensions obtained under this section are not allowed.

1.4 TERMINATION OF AGREEMENT

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

1.4.2 Agency Right to Terminate for Convenience. Agency may, in its sole discretion, terminate this Agreement, in whole or in part, for any reason upon 30 Calendar Days written notice to Contractor.

1.4.3 Effect of Termination.

1.4.3.1 Once this Agreement is terminated, Contractor shall not accept new Ordering Instruments.

1.4.3.2 Termination of this Agreement does not terminate the rights or obligations of any party to an Ordering Instrument executed before termination of this Agreement.

1.5 ORDERING INSTRUMENTS

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1.5.1 A Contract created by an Ordering Instrument may contain only terms specified or required by this Agreement. Additional, different or conflicting terms and conditions in any Ordering Instrument(s) or any other Ordering Instrument of either an Authorized Purchaser or the Contractor will not vary the terms of this Agreement.

1.5.2 Subject to the terms of this Agreement, Contractor shall accept Ordering Instruments from an Authorized Purchaser that comply with the terms of this Agreement until this Agreement terminates. Contractor may, but is not required to, accept an Ordering Instrument requesting a delivery schedule less than any minimum lead time, if any, specified in Exhibit A.

1.5.3 An Ordering Instrument is deemed accepted by Contractor unless Contractor rejects an Ordering Instrument within five (5) Business Days after it is received.

Contractor may reject an Ordering Instrument:

i) using the same means as used to deliver the Ordering Instrument, or

ii) by e-mail if that information is evident on the Ordering Instrument.

Contractor shall specify the reason(s) for rejection to the Authorized Purchaser.

1.5.4 Accepted Ordering Instruments establish separate Contracts between Authorized Purchaser and Contractor and include the terms set forth in Sections 2 and 3. As used in the Contracts, “Price Agreement” means this Agreement.

1.5.5 Nothing in this Agreement obligates any Authorized Purchaser to place any Ordering Instrument.

1.5.6 Contractor shall reject an Ordering Instrument that does not meet the requirements of this Price Agreement.

1.5.7 Authorized Purchasers that are agencies of the State of Oregon, under DAS Procurement authority, may issue ordering instruments under this Price Agreement for any dollar amount without further delegation of procurement authority from DAS. Authorized Purchasers who are agencies of the State of Oregon must obtain all other necessary approvals, including but not limited to legal sufficiency approval as required.

1.5.8 Authorized Purchaser will specify in the Purchase Order the prefabricated building and any options and the address where the Goods must be delivered.

1.5.9 Any purchases under the Price Agreement must be authorized by a signed Ordering Instrument (Exhibit B) issued by Authorized Purchaser in accordance with the ordering procedures described.

1.6 PRICES

1.6.1 Except as provided in this Section, during the Term of this Agreement, Contractor shall offer Goods and related Services to Authorized Purchasers at prices that do

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1.6.2 Contractor and Authorized Purchasers may agree to lower prices for Goods and related Services. Those lower prices apply only to the applicable Contract between Contractor and Authorized Purchaser.

1.6.3 Price Decrease

Authorized Purchasers shall be given the immediate benefit of any price decrease Contractor offers to any other customer. Contractor shall promptly notify Authorized Purchaser of the amount and effective date of each decrease. This decrease applies to orders placed on or after the effective date of the decrease. Invoices must reflect prices in effect on the date Authorized Purchaser’s Ordering Instrument was signed.

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

1.6.3.1 Contractor shall subtract from prices charged to Authorized Purchaser any unit price decrease that has been achieved or gained by Contractor. Contractor shall give Authorized Purchaser the immediate benefit of the decrease. Contractor shall promptly notify Contract Administrator of the amount and effective date of the decrease.

1.6.4 Price Increase

Except as set forth in the previous Section 1.6.3, all pricing shall remain firm for the first full year of the Price Agreement Period. Subject to the following, either party to this Agreement may request a price adjustment, in whole or in part.

1.6.4.1 Contractor may request price increases from Agency no more often than yearly, commencing on the anniversary of the execution of this Price Agreement.

Contractor must submit a request to the Contract Administrator in writing at least 60 Calendar Days before the proposed effective date of the increase. The request must show all proposed increases by line item and include supporting documentation acceptable to Agency. Agency may require Contractor to provide U.S. Bureau of Labor Statistics Producer Price Index or Consumer Price Index data or any other relevant manufacturer or industry data substantiating the increase. However, a price increase may not produce a higher profit margin for Contractor than at the beginning of the initial term of this Agreement.

1.7 INSURANCE

For each Ordering Instrument accepted, Contractor shall obtain insurance coverage as specified in Exhibit C of the Ordering Instrument and shall maintain the insurance throughout the term of the Ordering Instrument.

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1.8 MISCELLANEOUS

1.8.1 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 Agreement, including, without limitation, its validity, interpretation, construction, performance, and enforcement.

1.8.2 Designation of Forum and Consent to Jurisdiction

Any party bringing a legal action or proceeding against any other party arising out of or relating to this 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.

1.8.3 Amendments

Agency may amend this Price Agreement to the extent permitted by applicable statutes and administrative rules. No amendment to this Price Agreement is effective unless it is in writing, signed by the applicable parties and has been approved as required by applicable law.

Authorized Purchasers may amend the Ordering Instrument to the extent permitted by applicable statutes and administrative rules. No amendment to a Contract is effective unless it is in writing, signed by the applicable parties and has been approved as required by applicable law.

1.8.4 Transfer

Contractor shall not assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without first obtaining the written consent of Agency. Agency’s consent to any subcontract (or other delegation of duties) does not relieve Contractor of any of its duties or obligations under this Agreement. This 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.

1.8.5 Counterparts

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

1.8.6 Force Majeure

Neither party is responsible for delay or default caused by an event beyond the control of the party whose performance is interfered with, and, which by the exercise of reasonable diligence, the party is unable to prevent. Agency may terminate this Agreement upon written notice after determining such delay or default will reasonably prevent successful performance of this Agreement.

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In the event of any such delay, Contractor’s obligations are suspended to the extent of and for the duration of such causes. However, Contractor shall take all good faith 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 Agreement will be extended to enable Contractor, once such causes have been removed, to fulfill its obligations hereunder.

1.8.7 Entire Agreement

This 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.

1.8.8 Notices

Except as otherwise expressly provided in this Agreement, any notices sent between the parties under this Agreement are effective only if in writing and addressed to the Contract Administrators at the addresses set forth on the Cover Page. A party may change its Contract Administrator upon written notice to the other party. The following methods of delivery between the parties may be used: Personal delivery, Email or United States Postal Service (“USPS”) with postage prepaid.

For confirmation of delivery to the recipient, sender guidelines are as follows:

When choosing Personal delivery, parties may consider their communication or notice received immediately. When choosing Email, parties may consider their communication received upon reply to email by the recipient. However, if using email, the use of “read receipt” is not a valid form of delivery confirmation. When choosing to use USPS, parties may consider their communication received five (5) Calendar Days after the date of the mailing.

1.8.9 Intended Beneficiaries

Agency and Contractor are the only parties to this Agreement and are the only parties entitled to enforce its terms. Nothing in this 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 Agreement.

1.8.10 Waiver

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

1.8.11 Certification of Compliance with Tax Laws

By signature on this Agreement, Contractor certifies that it has complied with the tax laws of this State and the applicable tax laws of any political subdivision of this State. Contractor

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(i) All tax laws of this State, including but not limited to ORS 305.620 and ORS chapters 316, 317, 318 and 319;

(ii) Any tax provisions imposed by a political subdivision of this State that apply to Contractor, to Contractor’s property, operations, receipts, or income, or to Contractor’s performance of or compensation for any work performed by Contractor;

(iii) Any tax provisions imposed by a political subdivision of this State that apply to Contractor, or to goods, services, or property, whether tangible or intangible, provided by Contractor; and

(iv) Any 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 1.8.11 constitutes a material breach of this Agreement and any Contract. Any failure to comply entitles Agency or Authorized Purchaser to terminate this Agreement or Ordering Instrument as applicable and to pursue and recover any and all damages that arise from the breach and the termination of this Agreement or Ordering Instrument, and to pursue any or all of the remedies available under this Agreement, at law, or in equity, including but not limited to:

• Termination of this Agreement or Ordering Instrument, as applicable, 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 Agency’s setoff right, without penalty;

and

• Initiation of an action or proceeding for damages, specific performance, declaratory or injunctive relief. Agency or Authorized Purchaser may recover any and all damages suffered as the result of Contractor's breach of this Agreement or Ordering Instrument, including but not limited to direct, indirect, incidental and consequential damages, costs of cure, and costs incurred in securing replacement Goods or Services.

1.8.12 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].

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

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STANDARD TERMS FOR CONTRACTS UNDER THIS

AGREEMENT

2.1 CONTRACT DOCUMENTS; ORDER OF PRECEDENCE

The Contract consists of the Ordering Instrument and the provisions in Sections 2 and 3 of this Agreement. In the event of a conflict between the Ordering Instrument and provisions in Sections 2 and 3, the provisions in Sections 2 and 3 take precedence.

2.2 PAYMENT

Contractor shall look solely to Authorized Purchaser for payment of all amounts that may be due under this Contract. AUTHORIZED PURCHASER IS SOLELY RESPONSIBLE FOR PAYMENT UNDER THIS CONTRACT. Subject to Authorized Purchaser’s acceptance of Goods and related 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) or the maximum allowed by law.

2.4 PAYMENT ADDRESS

Authorized Purchaser must send payments to the address specified in the Contractor’s invoice.

2.5 INVOICES

Contractor shall invoice Authorized Purchaser only after delivery of all Goods and related Services ordered. Contractor shall send all invoices to the address provided by Authorized Purchaser for that purpose. Contractor shall include all of the following in its invoice:

• Price Agreement number.

• Ordering Instrument number.

• Goods and related Services ordered.

• Date delivered.

• Volume or quantity of Goods delivered and related Services performed.

• The price per item of Goods and related Services.

• The total amount invoiced.

• The address to which payment is to be sent.

2.6 PRICES

Contractor represents all prices for Goods and related Services under the Contract are equal to or better than the prices listed in Exhibit A of the Agreement.

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2.7 CANCELLATION, INSPECTIONS AND ACCEPTANCE

Authorized Purchaser may cancel an order in whole or in part before the draft shop drawings are approved. 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 and related Services. If the Goods and related Services are rejected, Authorized Purchaser shall provide Contractor with written notice of rejection. Notice of rejection must include itemization of apparent defects, including but not limited to (i) discrepancies between the Goods and related Services and the applicable specifications or warranties (including variance from demonstrations or sample characteristics where demonstrations or samples have been provided), or (ii) otherwise nonconforming Goods (including late delivery) and related Services. Notice of rejection must also specify when cure will be allowed.

2.7.1 Authorized Purchaser may elect to have Contractor deliver substitute conforming Goods at no additional cost to Authorized Purchaser. In such an event, Contractor shall deliver substitute conforming Goods within ten (10) Calendar Days of receipt of notice of rejection.

2.7.2 If the Goods and related Services are rejected or acceptance is revoked, Contractor shall refund any Contract payments that have been made for the rejected Goods and related Services and shall (at Contractor’s sole cost and expense) remove the Goods within ten (10) Calendar Days of receiving notice of rejection or revocation of acceptance.

2.7.3 Nothing contained in Section 2.7 precludes Agency or Authorized Purchaser from other remedies to which it may be entitled upon rejection or revocation of acceptance.

2.8 REPRESENTATIONS AND WARRANTIES

2.8.1 Officer Status, Insurance

Contractor represents and warrants that it is not an “officer,” “employee,” or “agent” of Agency, as those terms are used in ORS 30.265. Contractor represents and warrants that Contractor has obtained and will maintain during the term of this Contract all insurance required by the Agreement.

2.8.2 Debt Owed

Contractor represents and warrants that it has no undisclosed liquidated and delinquent debt owed to the State or any agency, board, commission, department or division of the State.

2.8.3 Warranty on Materials, Design, Manufacture

Contractor represents and warrants that all Goods are new, unused, current production models, and are free from defects in materials, design and manufacturer for a one-year period. Contractor further represents and warrants that all Goods are in compliance with and meet or exceed all specifications in Exhibit A to the Price Agreement.

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2.8.4 Warranty on Service Standards

Contractor warrants that all Services required to be performed, if any, shall be performed in a good and workmanlike manner in accordance with standards prevalent in the industry.

2.8.5 Warranty of Title

Contractor represents and warrants that all Goods are free and clear of any liens or encumbrances, that Contractor has full legal title to the Goods, and that 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 Agency and Authorized Purchaser under this Contract.

2.8.6 Warranty on Safety and Health Requirements

Contractor represents and warrants that Goods provided under this Contract comply with all applicable federal health and safety standards, including but not limited to, Occupational Safety and Health Administration (OSHA), and all Oregon safety and health requirements, including, but not limited to, those of the Oregon Consumer and Business Services Department.

2.8.7 Manufacturer Warranties

Contractor shall have all manufacturer warranties covering the Goods and component parts, if any, transferred to Authorized Purchaser at time of delivery at no charge.

2.8.8 Warranties are Cumulative

Contractor’s warranties provided in this Section 2.8 are in addition to and not in lieu of any other warranties provided elsewhere in the Contract. All warranties provided for in this Contract are cumulative, will be deemed consistent and not in conflict, are intended to be given full force and effect and to be interpreted expansively to give the broadest warranty protection to Agency and Authorized Purchasers.

2.9 COMPLIANCE WITH APPLICABLE LAWS AND STANDARDS

Contractor shall comply with all federal, state and local laws, regulations, and ordinances applicable to this Contract as they may be adopted or amended from time to time, including but not limited to ORS 918, Prefabricated Construction.

2.9.1 Noncompliant Goods

In the event of a conflict between the specifications in this Contract and applicable federal or State law, the law prevails over the specifications. In the event any conflict is based solely upon minimum standards such as quality or safety, the higher or more stringent standard shall apply. Contractor shall make any modifications required to achieve compliance with laws and industry standards. When Contractor is notified or becomes aware of any required modifications, Contractor shall immediately notify Agency and Authorized Purchaser.

2.9.2 Recalled Goods or Components

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In the event any Goods or component parts are recalled by a regulatory body or the manufacturer or discovered by Contractor not to be in compliance with the applicable specifications or law, Contractor shall immediately notify 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:

• Cancel any portion of the Ordering Instrument.

• Reject the Goods.

• Revoke its acceptance of the Goods.

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

• Terminate the Ordering Instrument.

• Notify the Contractor to promptly achieve compliance when applicable.

In the event of rejection or revocation of acceptance under this subsection, Authorized Purchaser reserves the right to acquire Goods outside of this Price Agreement. The Contractor shall then reimburse the Authorized Purchaser for payments made.

2.10 FOREIGN CONTRACTOR

If the amount of the Contract exceeds ten thousand dollars ($10,000), and if Contractor is not domiciled in or registered to do business in the State, Contractor shall promptly provide to the Oregon Department of Revenue all information required by that Department relative to the Ordering Instrument. Authorized Purchaser may withhold final payment under the Contract until Contractor has met this requirement.

2.11 SAFETY DATA SHEET

Contractor shall provide Authorized Purchaser at time of delivery with a Safety Data Sheet (SDS), if any, as defined by the Occupational Safety and Health Administration (OSHA) for any Goods provided under the 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.

2.12 TIME IS OF THE ESSENCE

Time is of the essence for Contractor’s performance obligations under this Contract.

2.13 FORCE MAJEURE

Neither Authorized Purchaser nor Contractor shall be held responsible for delay or default caused by an event which is beyond the party’s reasonable control. Contractor shall, however, make all reasonable efforts to remove or eliminate such a cause of delay or default and shall, upon the cessation of the cause, diligently pursue performance of its obligations under this Contract. Authorized Purchaser may terminate an Ordering Instrument upon written notice to Contractor after reasonably determining that such delay or default will likely prevent successful performance of the Contract.

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2.14 FUNDS AVAILABLE AND AUTHORIZED

Authorized Purchaser represents that it has sufficient funds available and authorized within its biennial appropriation or limitation to pay the cost of the purchases ordered by the Ordering Instrument prior to the end of the biennium. Contractor understands and agrees that Authorized Purchaser’s payment of amounts under a Contract attributable to purchases made after the last day of the current biennium is contingent on Authorized Purchasers receiving from the Oregon Legislative Assembly appropriations, limitations or other expenditure authority sufficient to allow it in the exercise of its reasonable administrative discretion, to continue to make payments under the Contract.

2.15 INDEPENDENT CONTRACTOR STATUS; RESPONSIBILITY FOR TAXES AND WITHHOLDING

2.15.1 Contractor is an independent contractor. Although Authorized Purchaser reserves the right to:

(i) determine (and modify) the delivery schedule for the Goods and related Services; and,

(ii) to evaluate the quality of completed performance.

Agency and Authorized Purchasers 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.

2.15.2 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.

2.16 INDEMNIFICATION

2.16.1 Contractor shall defend, save, hold harmless, and indemnify Agency, Authorized Purchaser, the State and their officers, employees and agents from and against all third party claims, suits, actions, proceedings, losses, damages, statutory penalties, liabilities, awards and costs of every kind and description (including reasonable attorney’s fees and expenses at trial, on appeal and in connection with any petition for review) (collectively, “Claim”) which may be brought or made against any Agency, the State, or their officers, employees or agents, arising out of or related to

(i) any personal injury, death or property damage caused by any defect in the Goods or any alleged act, omission, error, fault, mistake or negligence of Contractor, its employees, agents, related to this Contract,

(ii) any act or omission by Contractor that constitutes a material breach of this

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Contract, including without limitation any breach of warranty, or

(iii) the infringement of any patent, copyright, trade secret or other proprietary right of any third party by delivery or use of the Goods. Authorized Purchaser or State shall promptly notify Contractor in writing of any claim of which Authorized Purchaser or State becomes aware. Contractor’s obligation under this section shall not extend to any Claim primarily caused by the negligent or willful misconduct of Authorized Purchaser, or Authorized Purchaser’s modification of Goods without Contractor’s approval and in a manner inconsistent with the purpose and proper usage of such Goods.

2.16.2 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 or its officers, Authorized Purchasers, employees and agents prior to such action or representation. Further, the State, acting by and through its Department of Justice, may assume its own defense, including its officers, employees and agents, at any time when, in the State’s sole discretion, it determines:

(i) proposed counsel is prohibited from the particular representation contemplated;

(ii) counsel is not adequately defending or able to defend the interests of the State, its officers, employees or agents;

(iii) important governmental interests are at stake; or

(iv) the best interests of the State are served thereby. Contractor’s obligation to pay for all costs and expenses shall include those incurred by the State in assuming its own defense and its officers, employees, or agents under (i) and (ii) above.

2.17 EVENTS OF DEFAULT

2.17.1 By Contractor

Contractor will be in default of the provisions of a Contract if:

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

• Contractor has undisclosed liquidated and delinquent debt owed to the State or any agency, board, commission, department or division of the State; or

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

• Contractor fails to comply with its obligations in Section 2.27, Prompt Payment, and has not cured the non-performance within thirty (30) Calendar Days of Authorized Purchaser’s written notice to cure.

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• Contractor violates any provision, covenant, warranty, obligation or certification or fails to perform under this Contract, provided however that Contractor may cure the default within the period specified in Agency’s notice of default when Authorized Purchaser determines the default is curable by Contractor.

• Contractor attempts to modify or alter terms of this Price Agreement, including the Ordering Instrument, without first obtaining an executed amendment, signed by both parties.

2.17.2 By Agency

Agency and Authorized Purchasers will be in default of this Price Agreement and Contract/s if:

• Agency violates any provision, covenant, warranty, or obligation or fails to perform under this Contract and such breach is not cured within ten (10) Business Days after delivery of Contractor’s notice of breach or such longer period as Contractor may specify in such notice.

2.17.3 By Authorized Purchaser

Authorized Purchaser will be in default of Contract if:

• Authorized Purchaser fails to pay Contractor any amount pursuant to the terms of this Contract, and Authorized Purchaser fails to cure such failure within ten (10) Business Days after delivery of Contractor’s notice or such longer period as Contractor may specify in such notice.

• Authorized Purchaser attempts to modify or alter terms of this Price Agreement, including the Ordering Instruments, without first obtaining an executed amendment of the Ordering Instrument, signed by both parties.

2.18 REMEDIES

2.18.1 Agency’s Remedies

If Contractor is in default under Section 2.17.1, in addition to the remedies afforded elsewhere in this Contract, Agency or Authorized Purchaser may recover any and all damages suffered as the result of Contractor’s breach, including but not limited to direct, indirect, incidental and consequential damages, as provided in ORS 72.7110 to 72.7170.

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

• Stop Work or Suspend delivery of Goods or performance of related Services as provided in Section 2.19.2; or

• Termination of the Contract as provided in Section 2.19.1 or 2.19.2; or

• Initiation of an action or proceeding for damages, specific performance, declaratory or injunctive relief including, but not limited to, temporary suspension of work or permanent work stoppage until such relief has been restored to the satisfaction of the Agency; or

• Undertaking collection by administrative offset, or garnishment if applicable, of all

DAS Procurement Services, Version 2.0 – June 3, 2021 Page 18 of 37 monies due for Good to recover liquidated and delinquent debt owed to the State or any department or agency of the State. Offsets or garnishment may be initiated only after the Contractor has been given: i) written notice of the type and amount of the debt, the intention of the State to use administrative offset or garnishment to collect the debt, and an explanation of the debtor's rights under applicable law; and ii) the opportunity to make a written agreement to repay the debt; or

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

Agency may pursue any remedy or remedies singly, collectively, successively or in any order whatsoever.

2.18.2 Authorized Purchaser’s Remedies

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

• Initiation of an action or proceeding for damages, specific performance, declaratory or injunctive relief including, but not limited to, temporary suspension of work or permanent work stoppage until such relief has been restored to the satisfaction of the Authorized Purchaser; or

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

2.18.3 Contractor’s Remedies

If Agency or Authorized Purchaser terminates a Contract, or if Agency is in default under Section 2.17.2, or Authorized Purchaser under Section 2.17.3 and whether or not Contractor elects to exercise its right to terminate this Contract under Section 2.19.3, Contractor’s sole remedy is a claim against Agency or Authorized Purchaser for the unpaid purchase price for Goods delivered and related Services performed and accepted by Agency or Authorized Purchaser. If previous amounts paid to Contractor exceed the amount due to Contractor under this Section, Contractor shall pay any excess to Authorized Purchaser immediately upon written demand.

2.19 TERMINATION AND STOP WORK

2.19.1 By Mutual Agreement

This Price Agreement may be terminated at any time by mutual agreement of the Agency and Contractor.

A Contract may be terminated at any time by mutual agreement of Authorized Purchaser and Contractor.

2.19.2 Rights of Agency

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• Agency may, in its sole discretion, terminate this Price Agreement for convenience upon thirty (30) Calendar Days prior written notice.

2.19.3 Rights of Authorized Purchaser

• Authorized Purchaser may, in its sole discretion, send Contractor a notice to stop work or to suspend delivery of Goods or performance of related Services for a period of up to ninety (90) Calendar Days after the date of the notice, or for any further period to which the parties may agree.

Upon receipt of the notice, Contractor shall immediately comply with the Stop-Work Order terms and take all necessary steps to minimize the incurrence of costs allocable to the work affected by the Stop Work Order notice. Within a period of ninety (90) Calendar Days after issuance of the written notice, or within any extension of that period to which the parties have agreed, Authorized Purchaser will either cancel or modify the Stop Work Order by a supplementary written notice and amend the Ordering Instrument.

• Authorized Purchaser may, at its sole discretion, terminate an Ordering Instrument if Contractor is in default of the Contract under Section 2.17.1 and has failed to cure the default. Upon receipt of written notice of termination, Contractor shall stop performance under the Ordering Instrument if, and as, directed by Authorized Purchaser.

2.19.4 Rights of the Contractor

Contractor may terminate this Price Agreement upon thirty (30) Calendar Days prior written notice to the Agency, if Agency is in default of a Contract as described in Section 2.17.2.

Contractor may terminate an Ordering Instrument upon fifty (50) Calendar Days prior written notice to the Authorized Purchaser, if Authorized Purchaser is in default of a Contract as described in Section 2.17.3.

2.20 ACCESS TO RECORDS

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

2.21 NOTICES

Except as otherwise expressly provided in this Price Agreement, any notices sent between Agency or Authorized Purchaser and Contractor are effective only if in writing and addressed to

DAS Procurement Services, Version 2.0 – June 3, 2021 Page 20 of 37 the assigned Authorized Representatives of both parties as designated in Contract documents. A party may change its Authorized Representative upon written notice to the other party. The following methods of delivery may be used: Personal delivery, Email or United States Postal Service (“USPS”). For confirmation of delivery to the recipient, sender guidelines are as follows:

When choosing Personal delivery, parties may consider their communication or notice received immediately. When choosing Email, parties may consider their communication received upon reply to email by the recipient. However, if using email, the use of “read receipt” is not a valid form of delivery confirmation. When parties choose to use USPS, parties may consider their communication received five (5) Calendar Days after the date of the mailing.

2.22 ORDERING ACKNOWLEDGEMENTS

The parties acknowledge and agree other than designation of order quantities, types of Goods and related Services, delivery destination, dates of order, and scheduled delivery of other performance, any Ordering Instruments initiate or confirm an order of Goods and related services under this Contract and no other terms or conditions contained in those documents are of any force, effect or are binding upon the parties.

2.23 GOVERNING LAW

This Contract is governed by and construed in accordance with the laws of the State of Oregon, without regard to principles of conflicts of laws.

2.24 VENUE; CONSENT TO JURISDICTION

STATE OF OREGON AGENCIES, BOARDS AND COMMISSIONS; CONSENT TO JURISDICTION:

Any Claims between Agency, Authorized Purchaser and Contractor arising 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 District of Oregon. CONTRACTOR

HEREBY CONSENTS TO THE IN PERSONAM JURISDICTION OF SAID COURTS AND WAIVES

ANY OBJECTION TO VENUE IN SUCH COURTS, AND WAIVES ANY CLAIM THAT SUCH FORUM

IS AN INCONVENIENT FORUM. Nothing herein shall be construed as a waiver of the State’s sovereign or governmental immunity, whether derived from the Eleventh Amendment to the United States Constitution or otherwise, or of any defenses to Claims or consent to jurisdiction based thereon.

ORCPP CONTRACT VENUE; CONSENT TO JURISDICTION: Any Claims between Contractor and an ORCPP Authorized Purchaser that arise from or relate to the Contract shall be brought and conducted solely and exclusively within the Circuit Court of the county in which such ORCPP Authorized Purchaser resides, or at the ORCPP Authorized Purchaser's option, within such other county as the ORCPP Authorized Purchaser shall be 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 shall be brought and conducted solely and exclusively within the United States District Court for the District in which such ORCPP Authorized Purchaser resides. CONTRACTOR HEREBY CONSENTS TO THE IN PERSONAM

JURISDICTION OF SAID COURTS AND WAIVES ANY OBJECTION TO VENUE IN SUCH COURTS

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AND WAIVES ANY CLAIM THAT SUCH FORUM IS AN INCONVENIENT FORUM. Nothing herein shall be construed as a waiver of ORCPP or 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.

2.25 SURVIVAL

The following provisions survive termination or expiration of this Contract: Sections 2.8, 2.9.1, 2.9.2, 2.20, 2.23, 2.24, 2.26, 2.27; “TAIL COVERAGE” as defined in Exhibit C, Insurance.

2.26 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 the Contract did not contain the particular provision held to be invalid.

2.27 ASSIGNMENTS, SUBCONTRACTS, AND SUCCESSORS

Contractor shall not assign, sell, transfer, or subcontract rights, or delegate responsibilities under this Contract, in whole or in part, without the prior written approval of the Agency.

Further, no such written approval shall relieve Contractor of any obligations under the Contract, and any assignee, transferee, or delegate shall be considered the agent of Contractor. The provisions of this Contract are binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns.

2.27.1 Prompt Payments to Subcontractors

Contractor shall make prompt payments to its subcontractors supplying the Goods or Services identified for delivery under this Agreement.

2.27.1.1 “Prompt payment(s)” are Contractor’s payment(s) to its subcontractor(s) for satisfactory performance or delivery that are issued by Contractor within fifteen

(15) Calendar Days of Contractor’s receipt of the related payment from Authorized Purchaser, unless a different payment schedule is otherwise agreed upon in the applicable subcontractor agreement, in which case the payment schedule in the applicable subcontractor agreement establishes “prompt payment(s).”

2.27.1.2 Prompt payment includes Contractor’s receipt of an acceptable invoice from the subcontractor.

2.27.1.3 Contractor’s prompt payment obligations do not extend to amounts that are subject to a good faith dispute between Contractor and the subcontractor.

2.27.1.4 Contractor’s invoices to Authorized Purchaser must include a written certification that Contractor is in compliance with its prompt payment obligations under this Contract.

2.27.1.5 Contractor shall include, in each subcontract for the Services delivered under

DAS Procurement Services, Version 2.0 – June 3, 2021 Page 22 of 37 this Agreement, provisions that require the subcontractor to comply with the prompt payment obligations of this Agreement with…