RFQ

STATE OF OREGON

DEPARTMENT OF ENVIRONMENTAL QUALITY (DEQ)

REQUEST FOR QUOTE (RFQ) #S-34000-00003364

Yellow Springs Instruments (YSI) brand name or equal Equipment, Parts, and Supplies

SECTION A – GENERAL INFORMATION

The purpose of this Request for Quote (RFQ) is to establish a Contract for the purchase of YSI (Yellow Springs Inc.) brand name or equal equipment for the Department of Environmental Quality (DEQ) Laboratory and Environmental Assessment Division (LEAD). YSI is a developer and manufacturer of sensors, instruments, software, and data collection platforms for environmental water quality monitoring and testing. This contract covers each of these product types in the EXO, 6-series, WaterLog and the water quality sampling product lines (EcoSense, ProSeries, ProDigital, and ODO RTU).

DEQ intends to purchase at least 2 - 4 multiparameter datasondes, 5-10 handheld water quality sampling instruments and miscellaneous on-going replacement supplies and parts during the next five years. DEQ does not imply or guarantee that any purchases will be made during the course of any term of the resulting Contract. Purchases will be based on program needs and funding availability.

The initial price agreement term will be for one (1) year during which time the pricing will remain fixed.

If the parties agree, the contract may be extended for additional terms, but the total term shall not exceed five (5) years. By submitting an Offer to this RFQ, Contractor agrees to hold pricing to these conditions for the initial term beginning on the date the Contract has been signed by all parties.

DEQ reserves the right to amend the contract to include additional related items and equipment.

The Mandatory Specifications: Delivery Requirements and Delivery Schedule for this RFQ are outlined in Section B. The Sample Price Agreement (Attachment 3) contains the terms and conditions that will govern any contract between DEQ and the successful Bidder.

DEQ is issuing this RFQ pursuant to its authority under Oregon Administrative Rule (OAR) 125-246- 0170(2).

1. OregonBuys

This solicitation, including addenda, is posted on the OregonBuys state procurement platform.

OregonBuys provides access to procurement and contracting information issued by the State of Oregon, local governments, and political subdivisions. Offerors that wish to view or download a procurement opportunity need to be registered at https://oregonbuys.gov/bso/view/login/login.xhtml

2. COBID Participation

Pursuant to Oregon Revised Statute (ORS) Chapter 200, and as a matter of commitment, DEQ encourages the participation of minority, women, and emerging small business enterprises in all contracting opportunities. DEQ also encourages joint ventures or subcontracting with minority, women, and emerging small business enterprises. All businesses that are to be counted as a minority, women, or emerging small business must be registered with the Certification Office of Business Inclusion and Diversity (COBID). For more information please visit http://www.oregon4biz.com/How-We-Can- Help/OMWESB/.

https://oregonbuys.gov/bso/view/login/login.xhtml http://www.oregon4biz.com/How-We-Can-Help/OMWESB/ http://www.oregon4biz.com/How-We-Can-Help/OMWESB/

3. Pay Equity Training ORS 279A.167 requires pay equity training requirements for Oregon businesses who bid on public contracts. Businesses with one or more employees must provide proof that they are properly trained on Oregon’s pay equity laws.

To comply, Bidder must complete the State’s online Pay Equity Training and provide proof of completion by submitting a copy of the training certificate with their bid.

Pay Equity Training: https://ilearn.oregon.gov/Default.aspx

To learn more please visit the Department of Administrative Services Pay Equity webpage at https://www.oregon.gov/das/Procurement/Pages/PayEquity.aspx

4. Submittal Requirements, Due Date and Questions

Bidders must complete and return the following 3 documents no later than 5:00 PM (PT) June 22, 2022 to: bidsdeq@deq.oregon.gov

1. Attachment 1 (Cost Submittal Form)

2. Attachment 2 (Bidder Cover Sheet)

3. Pay Equity Training Certificate (see Section A, #3)

Questions or requests for clarification regarding this RFQ must be submitted to bidsdeq@deq.oregon.gov. The closing date and time are subject to change. Changes, if any, will be posted to OregonBuys by written Addenda.

5. Bid Evaluation and Contractor Selection

To be considered responsive, bids must substantially comply with all requirements of this RFQ and all prescribed public solicitation procedures. Bids that do not comply with the requirements of this RFQ or meet all prescribed solicitation procedures will be deemed non-responsive. In making such evaluation, DEQ may waive minor informalities and irregularities.

DEQ will award a Contract to the responsive, responsible Bidder with the lowest price.

6. Brand Name Specifications

Any product brand name listed in the Specifications as "or equal" or "or equivalent" shall establish the minimum requirements for quality, utility, durability, function, purpose, etc. When the brand name is followed by "or equal" or "or equivalent" other product brands be offered that are equal to or better than the minimum requirements established by product brand named. Bidder may show cost differences, alternates and options in the space provided in the RFQ. AGENCY DETERMINES, IN ITS SOLE

DISCRETION, WHETHER A PRODUCT OFFERED IS "EQUAL.”

7. Attachments Attachment 1 – Cost Submittal Form Attachment 2 – Bid Cover Sheet (Parts I-V) Attachment 3 – Sample PRICE AGREEMENT with the following exhibits

EXHIBIT A - DESCRIPTION OF THE GOODS AND PRICES

EXHIBIT B - CONTRACT ORDER DOCUMENT (COD)

EXHIBIT C - INSURANCE REQUIREMENTS

EXHIBIT D - INDEPENDENT CONTRACTOR CERTIFICATION

https://ilearn.oregon.gov/Default.aspx https://www.oregon.gov/das/Procurement/Pages/PayEquity.aspx mailto:bidsdeq@deq.oregon.gov mailto:bidsdeq@deq.oregon.gov

SECTION B – SPECIFICATIONS/STATEMENT OF WORK; DELIVERY REQUIREMENTS;

DELIVERY SCHEDULE; AND ACCEPTANCE CRITERIA

1. Equipment Specifications

1.1 Equipment Specifications

Bidder must be the original equipment manufacturer or an authorized distributor or reseller of YSI equipment, instruments, parts and supplies. Bidder must provide new, unused YSI brand name or equal equipment capable of meeting DEQ’s water quality data collection needs.

The water quality monitoring section at DEQ’s laboratory is responsible for conducting most of the monitoring needs related to water quality issues for the agency. The category of water quality data needed determines what type of instruments must be used. The water quality data types are.

1. Discrete spot sample at the water’s surface or in a grab sample taken from the water.

2. Vertical and/or horizontal water column profiles,

3. Short term unattended continuous data collection often only a few days, but could go up to 14 days using a multiparameter instrument with internal power and data logging capability, and

4. Long term continuous data collection for months up to years at one fixed location. This requires a multiparameter instrument with a base station that provides external power, wireless communication, and data logging capability.

Each type of assessment has different equipment needs. Currently our instruments for profiles and continuous data are manufactured by YSI inc. Furthermore, the majority of our discrete field monitoring is conducted with YSI products. All these instruments need to be maintained and kept field ready to meet monitoring demands. Keeping monitoring equipment maintained and field ready requires OEM supplies and parts because these instruments are not compatible with other brands.

DEQ also has the need to purchase new equipment to meet future monitoring demands and to replace older equipment that is no longer serviceable. We prefer to use the same brand of equipment when possible so that we maintain compatibility between our instruments, saving us time and money.

The YSI water monitoring equipment can be broken down into 3 instrument product lines.

1. Handheld water quality sampling meters

a. ProDigital

b. EcoSense

c. ProSeries

2. Environmental monitoring system multiparameter sondes and parts

a. 6-series models

b. EXO models

3. Advanced monitoring systems and accessories

a. WaterLOG products

The equipment in the resulting contract will be restricted to these 3 categories. This equipment will provide DEQ the ability to monitor in the field the parameters listed below.

Ammonia Dissolved Oxygen Total Suspended Solids Ammonium ORP/Redox Turbidity

Barometric Pressure pH Blue-Green Algae Biochemical Oxygen Demand Resistivity CDOM-fDOM Chloride Salinity Rhodamine Conductivity Specific Conductance Level Depth Temperature Oil, Hydrocarbon

2. Ordering Process

2.1 The contractor will provide DEQ with published list prices for products to calculate product costs.

Based on the cost calculation specified in the contract and the provide list price for each item, the DEQ will place orders for Goods by submitting a signed Contract Order Document (Attachment 3, Exhibit B) via email to the Contractor. The Contractor will confirm contract pricing and submit the order, or if there is an error in the DEQ’s order form, contact the DEQ to resolve the issue before ordering.

2.2 DEQ reserves the right to modify the Contract Order Document as internal changes and need arises, but the ordering process elements will remain the same.

3. Shipping and Delivery Requirements

3.1. Contractor shall ship Goods to the DEQ Laboratory at: 7202 NE Evergreen Parkway, Suite #150, Hillsboro, OR 97124.

3.2. Contractor shall ship Goods FOB destination. Contractor shall retain the risk of loss of Goods until

Agency accepts Goods in accordance with Attachment 3, Exhibit A.

3.3. Contractor shall use a common carrier (Example: USPS, FedEx, UPS) to ship all Goods.

3.4. Contractor shall pay shipping fees for all “non-rush” orders (e.g., 3+ day shipping, ground).

Contractor shall pre-pay and add no more than actual shipping costs for “rush” orders (e.g., overnight, 2-day, 3-day shipping) to invoices. DEQ Contract Administrator will authorize all “rush” orders in writing.

3.5. All Goods shall be delivered no later than 14 business days after order is placed, unless the item is not available in current inventory. In the event of a backorder, the Contractor will notify the DEQ Contract Administrator in writing no later than 2 business days after the order is placed of the status of the requested item. Repeated failure of Contractor to provide timely delivery may result in contract termination. No substitutions will be allowed on any order except when written authorization is provided by DEQ Contract Administrator, or designee, in advance of shipment.

3.6. If the Goods are delivered with damaged packaging and DEQ suspects the Goods may have suffered internal or external damage, the shipment will be refused and the Contractor will be responsible for all return shipping costs and any associated fees. The Contractor shall also be responsible for all costs associated with shipping the replacement Goods.

3.7. If the Goods are delivered and accepted by Agency in accordance with Attachment 3, Exhibit A, the

Contractor will invoice the agency as described in Attachment 3, Section 2.

DAS Procurement Services, Version 2.0 – June 3, 2021

ATTACHMENT 1

COST SUBMITTAL FORM

The bidder must be the original equipment manufacturer or an authorized distributor or reseller of all YSI products in the EMS, WQS and WaterLog product lines. However, because these products are modular, and the full product list includes hundreds of items, only a reduced list of items likely to be purchased in the next five years by DEQ are included in Table 1 below. The Bidder must be able to provide every item in Table 1. The Bidder must provide the purchase cost in the Single Unit Cost column of the table in US dollars. This cost represents the purchase price for one of the items listed in the respective row. The Bidder must meet this cost under the terms of the contract. Price comparisons between bids will be compared by extending the single unit cost by the Projected Count number to estimate the total purchases over the five-year period. The projected count serves only as a method for comparison and is not expected to be a real calculation of total expenditures on the contract.

Discounts from list price should be described in Table 2. The table provides columns to identify the product line or other category to which the discount applies. For example, a product line could be “EXO sondes and parts”. The Cost Condition column describes when a cost calculation would apply. Commonly, bulk purchases may result in different discount rate. For example, the cost calculation for EXO sondes and parts may be different if only 1-5 items are ordered, compared to if 6 or more items are ordered. The Cost Calculation column should describe how the cost of product line items are determined, for example 10% off list price. If there are more than one Cost Calculations for a product line, please provide each calculation in separate rows of the table. Note that this contract will not specify how may of each item will be purchased over the period the contract; therefore, any bulk discounts should be applied only on a per order basis.

Table 1 Cost Submittal Table. Bidder must be able to provide each item in the table below. In each row with a YSI brand name or equal item listed, the Bidder must provide the cost for a single unit purchase in the cost column.

Item YSI Item

No Description Projected Count

Single Unit Cost

EXO Sondes

1 599502-02

EXO2 Sonde, 100 meter Depth, 7 Sensor Ports, Central Wiper Compatible

- Depth range: 0-100 meters

- AUX port for future expansion

- Contains: Sonde, 4 "D" Batteries, Calibration Cup, Tool Kit, 4 port plugs, USB drive loaded with User Manual and KOR software

2 599503-02

EXO3 Sonde, 100 meter Depth, 5 Sensor Ports, Central Wiper Compatible

- Depth range: 0-100 meters

- No AUX Port / Compact Battery Compartment

- Contains: Sonde, 2 "D" Batteries, Calibration Cup, Tool Kit, 3 port plugs, USB drive loaded with User Manual and KOR software

EXO Sensors

3 599870

EXO Conductivity/Temperature Sensor, Ti

- Compatible with any EXO sonde

- New flow channel design and high accuracy temperature

- Incorporates wet-mate connector and welded titanium housing

Item YSI Item

No Description Projected Count

Single Unit Cost

4 577602

EXO pH Sensor Assembly, Unguarded, Ti

- Compatible with any EXO sonde

- Patented user replaceable sensor head

- Incorporates wet-mate connector and welded titanium housing

5 599100-01

EXO Optical DO Sensor, Ti

- Compatible with any EXO sonde

- User replaceable sensor cap (installed)

- Incorporates wet-mate connector and welded titanium housing

6 599101-01

EXO Turbidity Sensor, Ti

- Compatible with any EXO sonde

- Wide range Sensor reads from 0-4000 FNU

- Incorporates wet-mate connector and welded titanium housing

7 599102-01

EXO Total Algae - PC Sensor, Ti

- Optimized for freshwater use - Phycocyanin

- Includes cholorphyll and blue green alage sensors in a single Sensor

- Incorporates wet-mate connector and sealed welded titanium design

8 599090-01

EXO Central Wiper, EXO2, Ti

- Installs in center wiper port on EXO2 or EXO3 sonde only

- Includes two wiper brushes and installation tool

- Used in unattended monitoring deployments to reduce bio-fouling

9 599104-01 EXO fDOM Sensor, Ti

- AKA CDOM or UV Fluorometer

EXO Replacement Modules and Caps

10 599795-02 EXO pH Sensor Replacement Module, Un-Guarded

- User replaceable tip for 599702

11 599110

DO Sensor Cap Replacement Kit

- Replacement sensor cap for EXO optical dissolved oxygen sensor includes 599118, hydrating cap, and quick start guide

EcoSense Meter Kit

12 606068 Kit, EC300A Conductivity,TDS, Salinity,Temp Instrument, 1M Probe/Cable and Carrying Case

PRO SERIES INSTRUMENTS

13 6050030 Conductivity, Salinity, TDS and Temperature Handheld 3

CABLE/PROBE ASSEMBLIES

14 60530-1 Cond/Temp 1-meter cable assembly 2 15 60530-4 Cond/Temp 4-meter cable assembly 2 16 60530-10 Cond/Temp 10-meter cable assembly 1 17 626250-4 ODO Digital probe assy with 4 meter cable 3

ProDigital Handheld Instruments 18 626650 ProSolo Handheld 2 19 626870-1 ProDSS Handheld, No GPS 2 20 626870-2 ProDSS Handheld with GPS 2

ProDSS 4-port Cable Assemblies 21 626909-1 DSS-1 Meter 4 port Cable Assembly, No Depth 2 22 626909-4 DSS-4 Meter 4 port Cable Assembly, No Depth 3 23 626911-50 DSS-50 Meter 4 port Cable Assembly, With Depth 2

ProDigital Replacement Modules & ODO Caps 24 626963 Replacement pH Module 40

Item YSI Item

No Description Projected Count

Single Unit Cost

25 626964 Replacement pH/ORP Modules 5 26 626890 Replacement DSS ODO Sensor Cap 15

ProDSS Smart Sensors 27 626900 ProDSS ODO Optical Dissolved Oxygen Sensor 8 28 626902 ProDSS Conductivity and Temperature Sensor 8 29 626903 ProDSS pH Sensor with Module 7 30 626904 ProDSS pH/ORP Sensor with Module 2 31 626210 ProDSS Total Algae-Phycocyanin (TAL-PC) Sensor 2

ProDSS Replacement Parts 32 626990 Maintenance kit, ProDSS 4-port cable 2

Table 2 Discount Rates Table. Bidder to provide costing criteria for different YSI brand name or equal product lines.

For bulk discounts, or other conditions where more than one cost calculation applies to a product line, please use separate lines in the table for each different cost calculation. Attach additional rows if needed. Comments may be used to reference attached lists or provide other clarifications.

Product Line Cost Condition (i.e. bulk discount %)

Cost Calculation Comments/ exceptions

ATTACHMENT 2

BID COVER SHEET

PART 1 – GENERAL INFORMATION

RFQ #: __________________

Organization Name (tax filing): ___________________________________________________________

Primary Contact: __________________________________ Title: ________________________________ (Print Name)

Street Address: ____________________________________ City, State, Zip: ________________________

Telephone: _______________________ E-mail Address: ________________________________________

OregonBuys #: _____________________ (Contractor Only) Oregon Business ID#: __________________

COBID #: _____________________ (Contractor Only: If certified by the Certification Office of Business Inclusion and Diversity (COBID) as a Disadvantaged Business Enterprise, Minority Business Enterprise/Women Business Enterprise, or Emerging Small Business.)

Delivery Method. Please check the applicable box below. If Bidder is using a common carrier to deliver the goods identified in the RFP or subcontractor any part of the work bidder must provide company information for each subcontractor with the Bid. Bidder must state whether or not the subcontractor is registered with the Oregon Office of Minority, Women’s and Emerging Small Business Enterprises and provide the certification number.

□ My company will be shipping the goods by common carrier.

□ My company will be shipping the goods using our company fleet and understand I must meet the insurance types and limits and provide proof of insurance as outlined in Attachment 2 Part IV upon request.

Provide below the name and title of the person(s) authorized to sign any Contract that may result.

Authorized Representative:

Signature (Print Name) Title

Authorized Signer(s):

Signature (Print Name) Title

PART II – REPRESENTATIONS, ATTESTATIONS, AND CERTIFICATIONS: The undersigned further acknowledges, attests and certifies individually and on behalf of the Bidder that:

1. No attempt has been made or shall be made by the Bidder to induce any other person or organization to submit or not submit a Bid.

2. Information and prices included in this Bid shall remain valid for sixty (60) days after the bid due date or until a Contract is approved, whichever comes first.

3. The Bidder understands that all Bids not withdrawn prior to the RFQ Close Date become the property of the State of Oregon as of the Bid due date and Bidder grants the State the right to use all information contained therein.

4. The Bidder acknowledges receipt of all Addenda issued under the RFQ.

5. Bidder does not discriminate in its employment practices with regard to race, creed, age, religious affiliation, sex, disability, sexual orientation or national origin, nor has Bidder or will Bidder discriminate against a subcontractor in the awarding of a subcontract because the subcontractor is a minority, women or emerging small business enterprise certified under

ORS 200.055.

6. The Bidder, acting through its authorized representative, has read and understands all RFQ instructions, specifications, and terms and conditions contained within the RFQ, including those in the Sample Contract.

7. The Bidder agrees to and shall comply with, all requirements, specifications and terms and conditions contained within the RFQ, including all Addenda, if any;

8. The Bid submitted is in response to the specific language contained in the RFQ, and Bidder has made no assumptions based upon either (a) verbal or written statements not contained in the RFQ, or (b) any previously-issued RFQ, if any.

9. The Bidder agrees that if awarded the Contract, Bidder shall be authorized to do business in the State of Oregon at the time of the award;

10. Agency shall not be liable for any claims or be subject to any defenses asserted by Bidder based upon, resulting from, or related to, Bidder’s failure to comprehend all requirements of the RFQ.

11. The Agency shall not be liable for any expenses incurred by Bidder in either preparing or submitting its Bid, or in participating in any evaluation/selection process, if any.

12. Bidders shall use recyclable products to the maximum extent economically feasible in the performance of the Contract and of the Work set forth in this document.

13. Bidder, acting through its authorized representative, has knowledge regarding Contractor’s payment of taxes, and to the best of Bidders knowledge the Contractor is not in violation of any Oregon tax laws, including, without limitation, ORS 305.620 and ORS chapters 316, 317 and 318. Bidder understands and agrees to provide written notice to Agency within two business days of any change to the Bidder’s status of tax law compliance.

PART III – OFFICE OF FOREIGN ASSETS CONTROL AND US DEPARTMENT OF

STATE: Bidder and Bidder’s employees and agents are not included on:

a. The list entitled “Specialty 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 https://www.treasury.gov/resource-center/sanctions/SDN- List/Pages/default.aspx or

b. The list entitled “Current List of Designated Foreign Terrorist Organizations of the US Department of State” and currently found at https://www.state.gov/j/ct/rls/other/des/123085.htm

Part IV – INSURANCE REQUIREMENTS: Offeror agrees to meet the insurance requirements outlined below that will be included as a part of any Contract issued in response to this RFQ. Refer to Attachment 3 Exhibit C for requirements.

PART V – SIGNATURE: The signatory of this Bidder Cover sheet is a duly authorized representative of the Bidder, has been authorized by Bidder to make all a representations, attestations, and certifications contained in this bid document and all Addenda, if any, issued, and to execute this Bid document on behalf of Bidder.

By signature below, the undersigned Authorized Representative hereby certifies on behalf of Bidder that all contents of this Bidder Cover sheet and the submitted Bid are truthful, complete and accurate. The undersigned Authorized Representative further agrees to have knowledge regarding Bidder’s payment of taxes, and to the best of the Authorized Representative’s knowledge, Bidder is not in violation of any change to the Bidder’s status of tax law compliance. Failure to provide information required by the RFQ may ultimately result in rejection of the Bid.

THIS COVER PAGE MAY NOT BE ALTERED. THIS COVER PAGE MUST BE SIGNED

IN BLUE OR BLACK INK BY AN AUTHORIZED REPRESENTATIVE OF THE BIDDER.

Authorized Signature:

Print Name:

Title:

https://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx https://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx https://www.state.gov/j/ct/rls/other/des/123085.htm

ATTACHMENT 3

SAMPLE PRICE AGREEMENT

STATE OF OREGON

PRICE AGREEMENT [PA NUMBER]

FOR

[PRICE AGREEMENT TITLE]

BETWEEN

OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY

Price Agreement Contract Administrator:

Steve Hanson, Natural Resource Specialist

Address: 7202 NE Evergreen Parkway, Suite 150, Hillsboro OR 97124 Phone: (503) 693-5737 Email: Steve.Hanson@deq.oregon.gov

AND

[CONTRACTOR NAME]

Contract Administrator: [Name, Title] Address: [Street Address] Phone: [Phone] Email: [Email] mailto:Steve.Hanson@deq.oregon.gov

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

LIST OF EXHIBITS:

EXHIBIT A DESCRIPTION OF THE GOODS AND PRICES

EXHIBIT B CONTRACT ORDER DOCUMENT (COD)

EXHIBIT C INSURANCE REQUIREMENTS

EXHIBIT D (INDEPENDENT CONTRACTOR CERTIFICATION)

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

AGREEMENT

1.1 PARTIES

The only parties to this Agreement are Agency and Contractor.

1.2 DEFINITIONS

“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 for the benefit of Agency.

“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 Purchase Order and this Price Agreement, including any exhibits and amendments.

"Contract Order Document (COD)" means the ordering instrument between Agency and Contractor substantially in the form attached as Exhibit B.

"Goods" means the individual items described in Exhibit A.

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

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

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

"State" means the State of Oregon.

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 MM/DD/YYYY unless sooner terminated or extended as provided in this Agreement. The initial term and all extension terms are collectively referred to as the “Term” of this Agreement.

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 Contracts or Purchase Orders.

1.4.3.2 Termination of this Agreement does not terminate the rights or obligations of any party to a Contract executed before termination of this Agreement.

1.4.3.3 Termination of this Agreement terminates Contracts or “blanket” Purchase Orders in which Contractor is not legally required to deliver specific quantities of Goods at specific times.

1.5 ORDERING INSTRUMENTS

1.5.1 A Contract created by an ordering instrument consists only of the terms specified or required by this Agreement. Additional, different or conflicting terms and conditions in any Contract Order Document(s) or any other ordering instrument of either an Agency or the Contractor shall not vary the terms of this Agreement.

Unless otherwise expressly agreed, Contractor’s online ordering terms and conditions will not change the terms and conditions of this Agreement or any Contract.

1.5.2 Subject to the provisions of this Agreement, Contractor shall accept ordering instruments from Agency that comply with the provisions 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 were used to deliver the ordering instrument, or ii) by e-mail or facsimile if that information is evident on the ordering instrument. Contractor shall specify the reason(s) for rejection.

1.5.4 Accepted ordering instruments establish separate Contracts between Agency 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 Agency to place any ordering instrument.

1.5.6 Contractor shall reject an ordering instrument that does not meet the requirements of this Agreement.

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 Agency at prices that do not exceed the prices listed in Exhibit A.

1.6.2 Contractor and Agency may agree to lower prices for Goods and related Services.

Those lower prices apply only to applicable Contract between Contractor and Agency.

1.6.3 Not to exceed compensation. The maximum, not-to-exceed compensation payable to contractor under this contract, which includes any allowable expenses, is $149,000.00. Agency will not pay contractor any amount in excess of the not-to-exceed compensation of this contract and will not pay for services performed before the effective date or after the expiration or termination of this contract. If the maximum compensation is increased by amendment of this contract, the amendment must be fully effective before contractor performs services subject to the amendment.

1.6.4 Price Decrease

Agency shall be given the immediate benefit of any price decrease in Contractor offers to any other customer. Contractor shall promptly notify Agency 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 Agency’s Purchase Order document was written.

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.

1.6.4.1 Contractor shall subtract from prices charged to Agency any unit price decrease that has been achieved or gained by Contractor, whether through the manufacturer or otherwise. Contractor shall give Agency the immediate benefit of the decrease. Contractor shall promptly notify Contract Administrator of the amount and effective date of the decrease.

1.6.5 Price Adjustment

Subject to the following, either party to this Agreement may request a price adjustment, in whole or in part.

Contractor may request price increases from Agency when new list prices are published. A price increase should be commensurate with contractor expenses and may not produce a higher profit margin for Contractor than at the beginning of the initial term of this Agreement. However, Contractor must submit a request to the Contract Administrator in writing at least 90 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. When Agency identifies cost increases inconsistent with past changes and macro-economic conditions, 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.

1.7 INSURANCE

Contractor shall obtain Commercial General Liability insurance coverage 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 as specified in Exhibit C and shall maintain the insurance throughout the term of this Agreement and all Contracts.

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

No amendment to this Agreement is valid unless it is in writing and signed by the parties.

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.

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 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 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 shall, throughout the duration of this Agreement and any Contract and any extensions thereof, comply with all tax laws of this State and all applicable tax laws of any political subdivision of this State. For the purposes of this Section, “tax laws” includes: (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 to terminate this Agreement or Contract, as applicable and to pursue and recover any and all damages that arise from the breach and the termination of this Agreement or Contract, and to pursue any or all of the remedies available under this Agreement or Contract, at law, or in equity, including but not limited to:

• Termination of this Agreement or Contract, 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 Agency may recover any and all damages suffered as the result of Contractor's breach of this Agreement or Contract, 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.

1.8.14 Performance Evaluations

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

1.8.15 Reporting

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

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 Agency for payment of all amounts that may be due under this Contract. AGENCY IS SOLELY RESPONSIBLE FOR PAYMENT UNDER THIS CONTRACT. Subject to Agency’s acceptance of Goods and related Services, payment is due from Agency 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 Agency 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

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

2.5 INVOICES

Contractor shall invoice Agency only after delivery of all Goods and related Services ordered.

Contractor shall send all invoices to the address provided by Agency for that purpose.

Contractor shall include all of the following in its invoice:

• Price Agreement number.

• Ordering instrument number (i.e. item # or part #).

• Date ordered and delivered.

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

• Description of Goods and services ordered and performed

• The unit price per item and extended price of Goods and related Services.

• The total amount invoiced.

• The address to which payment is to be sent.

Contractor shall send all invoices to DEQEXP@deq.state.or.us

DEQ shall review invoice for completeness and accuracy prior to approval for payment.

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.

2.7 CANCELLATION, INSPECTIONS AND ACCEPTANCE

Agency may cancel an order in whole or in part before Goods and related Services are delivered or performed. Agency 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, Agency 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 Agency may elect to have Contractor deliver substitute conforming Goods at no additional cost to Agency. 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 with regard to 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 from other remedies to which it may be entitled upon rejection or revocation of acceptance.

2.8 REPRESENTATIONS AND WARRANTIES

mailto:DEQEXP@deq.state.or.us

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 manufacture. 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.

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 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 Agency at time of delivery at no charge.

2.8.8 Software License

To the extent the Goods contain software, Contractor hereby grants to Agency, or shall ensure that Agency receives, a perpetual, irrevocable, non-exclusive, non-transferable, royalty-free license to use the operating system software (and documentation and associated manuals) (the “Software”) for the Goods.

In the event the Goods include third party intellectual property and unless otherwise agreed, Contractor shall ensure that Agency receives a license to use the software sufficient to fulfill the business objectives, requirements and specifications identified in this Agreement.

Agency shall have the right to review the proposed license agreement and negotiate terms with the licensor; upon agreement to the terms, Agency will be bound by such license agreement. If Agency and licensor cannot reasonably agree to terms, Agency, in its sole discretion, may return the Goods to Contractor (without incurring any termination liability), and Contractor shall provide a full refund including any shipping and handling charges.

2.8.9 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.