S-25700-00002297 AttA.docx

S-25700-00002297 – STRUCTURAL PREP KIT EQUIPMENT MAINTENANCE Att A

ATTACHMENT A

SAMPLE PRICE AGREEMENT

PRICE AGREEMENT NO. ________ ("Price Agreement")

This Price Agreement is between the State of Oregon, acting by and through its Oregon State Police ("AGENCY") and _________________________________, a _____________ corporation ("Contractor").

A. AGENCY issued RFP XXXXX seeking proposals from qualified and responsible Proposers to provide XXXXX as described in this Price Agreement.

B. Contractor responded to the RFP offering to provide to AGENCY the Services and Goods according to the terms and conditions of this Price Agreement.

C. AGENCY has awarded Contractor this Price Agreement. AGENCY does not guarantee any purchases under this Price Agreement.

D. The resulting Price Agreement from solicitation XXXX shall not exceed $150,000 in maximum spend.

In consideration of the foregoing recitals and subject to the covenants, terms and conditions set forth below the parties agree as follows:

I. AGREEMENT

1.1. DEFINITIONS.

a. "Business Days" means 8:00 a.m. to 5:00 p.m., Pacific time, Monday through Friday, excluding State of Oregon holidays.

b. "Contract" means the entire agreement between the Contractor and the AGENCY, comprised of this Price Agreement and a signed Ordering Instrument.

c. "Goods" means the individual items and related services that are incidental to the purchase of Services supplied under this Price Agreement.

d. "Ordering Instrument" means the purchase document that is submitted by an AGENCY to Contractor which, together with this Price Agreement, creates a Contract between Contractor and AGENCY for the purchase of the Services described in the Ordering Instrument. An Ordering Instrument may consist of, but is not limited to a Purchase Order.

e. "Price Agreement" means this written agreement between the Contractor and AGENCY under which the Contractor agrees to hold prices, terms and conditions firm for a specified period of time for the benefit of AGENCY and with no guarantee of a minimum or maximum purchase.

f. "Services" means the Goods to be provided and the services to be performed by the Contractor in accordance with the Price Agreement.

1.2. PRICE AGREEMENT DOCUMENTS. This Price Agreement consists of the following documents, which are listed in descending order of precedence:

· this Price Agreement less all exhibits

· Exhibit A: Statement of Services

· Exhibit B: Compensation

· Exhibit C: Insurance

Exhibits A - C are attached hereto and incorporated herein by this reference.

1.3. SERVICES AND TERM OF PRICE AGREEMENT.

a. During the term of the Price Agreement, Contractor shall provide Services and Goods of the kind identified in Exhibit A, in the quantity requested and at the time and place requested by an AGENCY.

b. The initial term of the Price Agreement is XXXXX year, beginning on the date on which the Price Agreement has been signed by all the parties and all governmental approvals necessary for execution have been obtained (“Effective Date”), unless terminated sooner in accordance with its termination provisions. The parties may extend the term of this Price Agreement not to exceed a cumulative total of five (5) years.

AGENCY shall notify Contractor in writing if the AGENCY intends to extend the Price Agreement prior to the expiration of the then current term. If Contractor consents to the extension, it shall sign and return the Amendment to AGENCY within the time period specified therein. If the Contractor does not consent, the Price Agreement shall expire according to its terms, unless earlier terminated.

1.4. PROCESS.

a. AGENCY may purchase the Services specified in Exhibit A by issuing Ordering Instruments that create and become part of separate Contracts. The only parties to Contracts created by Ordering Instruments are the applicable AGENCY and Contractor. AGENCY is an intended beneficiary of each Contract created by an ordering instrument.

b. Contractor shall only accept Ordering Instruments that:

(i) comply with the requirements of this Section 1.4;

(ii) specify the type and quantity of Services and Goods ordered;

(iii) specify a delivery schedule, if any;

(iv) specify service or delivery location;

(v) specify invoicing address;

(vi) specify AGENCY and it’s authorized representative;

(vii) specify AGENCY Purchase Order number, if any;

(viii) specify request date and time;

(ix) specify description of work;

c. Contractor shall only accept Ordering Instruments that do not vary, amend, modify, or add Price Agreement provisions other than: changes to the AGENCY’s authorized representative; identification of Goods and Services offered under the terms of the Price Agreement; delivery schedules in accordance with the terms of the Price Agreement; and delivery destination and invoicing address. Each Ordering Instrument that Contractor accepts shall create a separate Contract between the parties, enforceable in accordance with the terms thereof and independent of all other such Contracts.

d. AGENCY shall use their own Ordering Instrument forms to order under the Price Agreement. The Mandatory Purchase Authorization Language set out in Section 1.4.e is required on the front page of each Ordering Instrument submitted to Contractor.

e. An Ordering Instrument shall contain the following mandatory Ordering Instrument language:

“THIS PURCHASE ORDER, IN ADDITION TO ANY EXHIBITS OR ADDENDA ATTACHED, IS PLACED AGAINST STATE OF OREGON SOLICITATION NUMBER ______ AND PRICE AGREEMENT _______. THE TERMS AND CONDITIONS CONTAINED IN THE PRICE AGREEMENT APPLY TO THIS PURCHASE AND TAKE PRECEDENCE OVER ALL OTHER CONFLICTING TERMS AND CONDITIONS, EXPRESS OR IMPLIED. THERE ARE NO UNDERSTANDINGS, AGREEMENTS OR REPRESNTATIONS, ORAL OR WRITTEN, NOT SPECIFIED HEREIN.”

1.5. COMPENSATION.

a. AGENCY shall pay Contractor at or below the rates described in Exhibit B except for Services subject to prevailing wage law as described in Section 1.5.b. AGENCY will not pay Contractor any amount in excess of that sum for completing the Services, unless it is a project based service with a not to exceed price. AGENCY, in accordance with the provisions of ORS 293.462(3), may pay up to a maximum rate of two-thirds of one percent per month (8% per annum) in accordance with the provision of ORS 293.462(4). AGENCY will pay only for completed Services that are accepted by the AGENCY.

c. Price Decrease. For Services performed other than those subject to prevailing wage law as described in Section 1.5,b, the AGENCY shall be given the immediate benefit of any price decrease. Contractor shall promptly notify AGENCY of the amount and effective date of each decrease. This decrease shall apply to orders placed on or after the effective date of the decrease. Invoices shall reflect prices in effect on the date the AGENCY’s Ordering Instrument document was written.

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

d. Price Increase. For Services performed other than those subject to prevailing wage law as described in Section 1.5.b, the Prices set forth in Exhibit B shall remain in force without change for at least the initial term of the Price Agreement. Thereafter, Contractor may request a price adjustment for some or all items at any time, provided however that any Price Adjustment granted by the AGENCY as a result of such request must remain in force without change for at least 1 year after the effective date of the price adjustment.

AGENCY may grant or deny the request in whole or in part. Grant or denial is solely within the discretion of AGENCY. If the Contractor disagrees with the decision of the AGENCY with respect to the price adjustment, and the parties are unable to resolve the disagreement, the Price Agreement shall expire according to its terms.

e. Invoicing. Contractor shall invoice for the completed and accepted Services by the AGENCY using an invoice format approved by the AGENCY. Contractor shall send invoices to the address specified by the AGENCY or to a different address as directed in writing by the AGENCY. Contractor shall meet other invoicing requirements contained herein.

Contractor shall include in its invoice the following:

a) Price Agreement number;

b) Purchase Order number;

c) Service date[s];

d) Service location;

e) Description of Services performed, including Quantity and Price;

f) Total amount due; and

g) Address to which payment is to be sent

f. Payment. AGENCY will pay Contractor within forty-five (45) calendar days all amounts due under Ordering Instrument upon AGENCY’s approval of Contractor’s invoice after AGENCY has determined that all required Services have been completed and accepted. AGENCY shall send payment to Contractor at the address specified in the invoice. Contractor’s claims to Agency for overdue payments on invoices are subject to ORS 293.462.

Contractor shall look solely to AGENCY for payment of all amounts that may be due under the Contract. AGENCY IS SOLELY RESPONSIBLE FOR PAYMENT UNDER THE CONTRACT.

g. Most Favorable Prices and Terms. Contractor represents that all prices, terms and benefits offered by Contractor under this Contract are equal to or better than the equivalent prices, terms and benefits being offered by Contractor to any other state or local government unit or commercial customer.

Should Contractor, during the term of the Contract, enter into any contract, agreement or arrangement that provides lower prices, more favorable terms or greater benefits to any other such government unit or commercial customer, this Contract shall thereupon be deemed amended to provide the same price or prices, terms and benefits to the State. This provision applies to comparable Services and Goods, and to purchase volumes by the State that are not less than the purchase volumes of the government unit or commercial customer that has received the lower prices, greater benefits or more favorable terms.

h. Funds Available and Authorized; Payments: AGENCY represents that it has sufficient funds available and authorized within its biennial appropriation or limitation to pay the cost of purchases under the Contract prior to the end of the current biennium. Contractor understands and agrees that such an AGENCY’s payment of amounts under the Contract attributable to purchases made after the last day of the current biennium is contingent on that AGENCY’s 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.

Section 1.5.g does not apply to donations of Services and Goods to charitable, nonprofit or government entities, if the donations are recognized as such and are deductible under the federal Internal Revenue Code, shall not be considered contracts, agreements, sales or arrangements with other government units or commercial customers that call for the application of section 5.g.

1.6. RESERVED

1.7. INSURANCE. Contractor shall obtain insurance specified in Exhibit C and shall maintain the insurance until all Contracts under this Agreement are terminated.

1.8. INCORPORATION OF TERMS AND CONDITIONS BY REFERENCE IN PRICE AGREEMENT. The following sections of Part II, STANDARD TERMS FOR CONTRACTS UNDER THIS AGREEMENT, shall also apply to the Price Agreement between AGENCY and Contractor: Sections 2.3, 2.4, 2.7, 2.11, 2.12, 2.14, 2.15, 2.20, 2.21, 2.22, and 2.23. When applied to the Price Agreement, with respect to these provisions, the term “Contract” shall mean “Price Agreement”.

1.9 MISCELLANEOUS.

a. 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.

b. 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.

c. 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.

d. Notices. Except as otherwise expressly provided in this Agreement, any communications between the parties, or notices to be given under this Agreement, are effective only if given in writing by personal delivery, express courier, facsimile, or United States Postal Service, postage prepaid, to Contractor or AGENCY at the address or number set forth below in the signature sections, or to such other addresses or numbers as either party may later indicate pursuant to this Section. Any communication or notice so addressed and mailed is deemed given five (5) days after mailing. Any communication or notice delivered by facsimile is deemed given on the day the transmitting machine generates a receipt of a successful transmission of the notice, if transmission was during normal business hours, or on the next business day, if transmission was outside normal business hours. To be effective against DAS Procurement Services, any notice transmitted by facsimile must be confirmed by telephone notice to DAS Procurement Services’ Contract Administrator. Any communication or notice given by personal delivery or express courier is deemed given immediately upon such delivery, provided such delivery is made to the person indicated below.

Contractor:

Name:

Attn:

Title:

Address:

Contact Telephone Number:

Fax Number:

E-Mail Address:

AGENCY:

Name:

Title:

Address:

Contact Telephone Number:

Fax Number:

E-Mail Address:

e. No Third Party Beneficiaries. DAS Procurement Services 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.

II. STANDARD TERMS FOR CONTRACTS UNDER THIS PRICE AGREEMENT

2.1 CONTRACT DOCUMENTS; ORDER OF PRECEDENCE. The Contract consists of the ordering instrument and the provisions in Sections 2 and 3. 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, payment is due from AGENCY within 45 calendar days after the date of the invoice.

2.3 REPRESENTATIONS AND WARRANTIES. Contractor represents and warrants that:

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

b. Contractor has the skill and knowledge possessed by well-informed members of its industry, trade or profession and Contractor will apply that skill and knowledge with care and diligence and perform Services in a timely, professional and workmanlike manner in accordance with the highest standards applicable to Contractor’s industry, trade or profession;

c. Contractor is and shall be, at all times during the term of this Contract, qualified, professionally competent, and duly licensed to perform Services and do business in the State of Oregon;

d. All Goods shall be new, unused, current production models, where applicable, and shall be free from defects in materials, design and manufacture for the duration of the warranty period;

e. All Goods are free and clear of any liens or encumbrances, and that Contractor has full legal title to the Goods, and that no other person has any right, title or interest in the Goods which shall be superior to or infringe upon the rights granted to the AGENCY hereunder.

f. 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 State Workers' Compensation Division.

g. Contractor shall have all manufacturer warranties covering the Goods and component parts, if any, transferred to the AGENCY.

h. The warranties specified in this section are in addition to, and not in lieu of, any other warranties provided. All warranties are cumulative and will be interpreted broadly to give Agency the greatest warranty protection available.

2.4 COMPLIANCE WITH APPLICABLE LAWS AND STANDARDS.

a. 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.

b. AGENCY’s performance under this Contract is conditioned upon Contractor’s compliance with the obligations intended for contractors under ORS 279B.220, 279B.225 (if applicable to this Contract), 279B.230 and 279B.235 (if applicable to this Contract), which are incorporated into this Contract by reference. Contractor shall, to the maximum extent economically feasible in the performance of this Contract, use recycled paper (as defined in ORS 279A.010(1)(gg)), recycled PETE products (as defined in ORS 279A.010(1)(hh)), and other recycled plastic resin products and recycled products (as “recycled product” is defined in ORS 279A.010(1)(ii)).

c. In the event of a conflict between the specifications in this Contract and applicable federal or State law, the law prevails. Contractor shall make any modifications required to achieve compliance with law. When Contractor is notified or becomes aware of any required modifications, Contractor shall immediately notify AGENCY.

d. 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, Contractor shall immediately notify AGENCY of the recall or non-compliance, and shall provide copies of the notice or other documentation. Upon notification, AGENCY may elect to do any of the following:

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

2.5 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 Contract. AGENCY may withhold final payment under the Contract until Contractor has met this requirement.

2.6 TIME IS OF THE ESSENCE. Time is of the essence for performance of Contractor’s performance obligations under this Contract.

2.7 FORCE MAJEURE. Neither AGENCY nor Contractor shall be held responsible for delay or default caused by fire, riot, acts of God, war, or any other cause which is beyond the party’s reasonable control. Contractor shall, 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. AGENCY may terminate this Contract upon written notice to Contractor after reasonably determining that such delay or default will likely prevent successful performance of the Contract.

2.8 RESERVED

2.9 INDEPENDENT CONTRACTOR STATUS; RESPONSIBILITY FOR TAXES AND WITHHOLDING.

a. Contractor is an independent contractor. Although the AGENCY reserves the right to determine (and modify) the delivery schedule for the Services and to evaluate the quality of completed performance, AGENCY 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.

b. 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, AGENCY 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.

2.10 INDEMNIFICATION.

a. CONTRACTOR SHALL DEFEND, SAVE, HOLD HARMLESS, AND INDEMNIFY THE AGENCY, THE STATE OF OREGON AND ITS OFFICERS, EMPLOYEES AND AGENTS FROM AND AGAINST ALL CLAIMS, SUITS, ACTIONS, PROCEEDINGS, LOSSES, DAMAGES, LIABILITIES, AWARDS AND COSTS OF EVERY KIND AND DESCRIPTION (INCLUDING REASONABLE ATTORNEY’S FEES AND EXPENSES AT TRIAL, ON APPEAL AND IN CONNECTION WITH ANY PETITION FOR REVIEW) (COLLECTIVELY, “CLAIM”) WHICH MAY BE BROUGHT OR MADE AGAINST ANY AGENCY, THE STATE, OR THEIR AGENTS, OFFICIALS, EMPLOYEES AND ARISING OUT OF OR RELATED TO (I) ANY PERSONAL INJURY, DEATH OR PROPERTY DAMAGE CAUSED BY ANY ALLEGED ACT, OMISSION, ERROR, FAULT, MISTAKE OR NEGLIGENCE OF CONTRACTOR, ITS EMPLOYEES, AGENTS, RELATED TO THIS CONTRACT, (II) ANY ACT OR OMISSION BY CONTRACTOR THAT CONSTITUTES A MATERIAL BREACH OF THIS 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 OR SERVICES. AGENCY OR STATE SHALL PROMPTLY NOTIFY CONTRACTOR IN WRITING OF ANY CLAIM OF WHICH AGENCY OR STATE BECOMES AWARE. CONTRACTOR’S OBLIGATION UNDER THIS SECTION SHALL NOT EXTEND TO ANY CLAIM PRIMARILY CAUSED BY (I) THE NEGLIGENT OR WILLFUL MISCONDUCT OF AGENCY, OR (II) AGENCY’S MODIFICATION OF GOODS WITHOUT CONTRACTOR’S APPROVAL AND IN A MANNER INCONSISTENT WITH THE PURPOSE AND PROPER USAGE OF SUCH GOODS OR SERVICES.

b. HOWEVER, 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, 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 THAT OF ITS OFFICERS, EMPLOYEES AND AGENTS, AT ANY TIME WHEN IN THE STATE’S SOLE DISCRETION IT DETERMINES THAT (I) PROPOSED COUNSEL IS PROHIBITED FROM THE PARTICULAR REPRESENTATION CONTEMPLATED; (II) 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 THAT OF ITS OFFICERS, EMPLOYEES, OR AGENTS UNDER (I) AND (II) ABOVE.

2.11 BREACH.

a. BY CONTRACTOR: Contractor breaches this Contract if:

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

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

(iii) Contractor commits any breach of any covenant, warranty, obligation or certification under this Contract, provided however that Contractor may cure the breach within the period specified in AGENCY’s notice of default when AGENCY determines the breach is curable by Contractor.

b. BY AGENCY: AGENCY breaches this Contract if:

(i) AGENCY fails to pay Contractor any amount pursuant to the terms of this Contract, and AGENCY 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; or

(ii) AGENCY commits any breach of any covenant, warranty, or obligation 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.

2.12 REMEDIES.

a. AGENCY’S REMEDIES: If Contractor is in breach under Section 2.11.a, in addition to the remedies afforded elsewhere in this Contract, the AGENCY 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:

(i) Termination of the Contract as provided in Section 2.14.a;

(ii) 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;

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

(iv) 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.

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

2.13 CONTRACTOR’S REMEDIES. If AGENCY terminates this Contract, or if AGENCY is in breach under Section 2.11.b and whether or not Contractor elects to exercise its right to terminate this Contract under Section 2.14.c, Contractor’s sole remedy is: (a) a claim against AGENCY for the unpaid purchase price for Goods delivered and accepted by AGENCY; (b) with respect to Services compensable on an hourly basis, a claim for unpaid invoices, hours worked but not yet billed and authorized expenses for services completed and accepted by AGENCY; and (c) with respect to deliverable-based Services, a claim for the sum designated for completing the deliverable multiplied by the percentage of services completed and accepted by AGENCY, less previous amounts paid and any claim(s) which AGENCY has against Contractor. If previous amounts paid to Contractor exceed the amount due to Contractor under this Section, Contractor shall pay any excess to AGENCY upon written demand.

2.14 TERMINATION.

a. BY MUTUAL CONSENT. This Contract may be terminated at any time by mutual written consent of AGENCY and Contractor.

b. RIGHTS OF AGENCY. AGENCY may, at its sole discretion, terminate this Contract for convenience with thirty (30) calendar days written notice. AGENCY may terminate this Contract immediately upon notice to Contractor, or at such later date as AGENCY may establish in such notice, upon the occurrence of any of the following events:

(i) AGENCY fails to receive funding, appropriations, limitations, allotments, or other expenditure authority sufficient to allow AGENCY, in the exercise of its reasonable administrative discretion, to meet its payment obligations under this Contract;

(ii) federal or state laws, regulations, or guidelines are modified or interpreted in such a way that either the purchase of the Goods or Services by AGENCY under the Price Agreement is prohibited, or AGENCY are prohibited from paying for such Goods or Services from the planned funding sources; or

(iii) Contractor is in breach of this Contract under Section 2.11.a. Upon receipt of written notice of termination, Contractor shall stop performance under this Contract if and as directed by AGENCY.

c. RIGHTS OF THE CONTRACTOR: Contractor may terminate this Contract with a minimum thirty (30) calendar days written notice to AGENCY, if AGENCY is in breach of this Contract as described in Section 2.11.b.

Contractor may not terminate if a good faith dispute exists with respect to the amount due Contractor.

2.15 ACCESS TO RECORDS. Contractor shall retain, maintain, and keep accessible all records relevant to this Contract (the “Records”) for a minimum of six (6) years, or such longer period as may be required by applicable law following expiration or termination of this Contract, or until the conclusion of any audit, controversy or litigation arising out of or related to this Contract, whichever date is later. Financial Records will also be kept in accordance with Generally Accepted Accounting Principles (GAAP). During the record-retention period established in this Section, Contractor shall permit AGENCY, 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.

2.16 NOTICES. All notices required under this Contract must be in writing and addressed to the party’s authorized representative. For AGENCY, the authorized representative is identified in the ordering instrument. Contractor’s authorized representative is Contractor’s Contract Administrator identified in the Price Agreement. Mailed notices will be deemed received five (5) business days after post marked, when deposited, properly addressed and prepaid, into the U.S. postal service. If a notice is sent by facsimile, upon receipt by the party giving the notice of an acknowledgment or transmission report generated by the machine from which the facsimile was sent indicating that the facsimile was sent in its entirety to the recipient’s facsimile machine and number. Personal delivery is effective upon delivery.

2.17 ORDERING INSTRUMENTS; ACKNOWLEDGEMENTS. The parties acknowledge and agree that other than designation of order quantities, types of Goods or Services, delivery destination, dates of order, and scheduled delivery of other performance, any purchase orders or acknowledgement documents are simply for the convenience of the parties to initiate or confirm an order of Goods or Services under this Contract and that no other terms or conditions contained in those documents are of any force or effect or are binding upon the parties.

2.18 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.

2.19 VENUE; CONSENT TO JURISDICTION. Any claim, action, suit or proceeding (collectively, “Claim”) between the AGENCY and Contractor that arises from or relates to this Contract shall be brought and conducted solely and exclusively within the Circuit Court of Marion County for the State of Oregon; provided, however, if a Claim must be brought in a federal forum, then unless otherwise prohibited by law it shall be brought and conducted solely and exclusively within the United States District Court for the 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 jurisdiction based thereon.

2.20 SURVIVAL. The following provisions survive termination or expiration of this contract: Sections 2.3, 2.4.d, 2.10, 2.12, 2.15, 2.18, 2.19, 2.21; and Section d. of Exhibit C (“TAIL” COVERAGE).

2.21 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.

2.22 ASSIGNMENTS, SUBCONTRACTS, AND SUCCESSORS.

Contractor shall not enter into any subcontracts for any of the Work required to be performed by “Class “A” Limited Energy Technician” and “General Journeyman Electrician”. For other than work performed by “Class “A” Limited Energy Technician” and “General Journeyman Electrician” Contractor shall not enter into any subcontracts unless AGENCY gives Contractor prior written consent. Contractor’s consent to any subcontract shall not relive Contractor of any of its duties or obligations under the Contract.

Contractor shall not assign, delegate, or transfer any of its rights or obligations under the Contract without AGENCY's prior written consent. AGENCY’s written consent does not relieve Contractor of any obligations under this Contract, and any assignee, transferee, or delegate is considered Contractor’s agent.

The provisions of the Contract shall be binding upon and shall inure to the benefit of the parties hereto, and their respective successors and permitted assigns, if any.

2.23 MERGER CLAUSE; AMENDMENT; WAIVER. This Contract constitutes the entire agreement between Contractor and AGENCY on the subject matter of this Contract. There are no understandings, agreements, or representations, oral or written, not specified in this Contract on the subject matter. No amendment of this Contract is valid unless it is in writing and signed by the parties. No waiver or consent is effective unless in writing and signed by the party against whom it is asserted. Waivers and consents are effective only in the specific instance and for the specific purpose given. The failure of the AGENCY to enforce any provision of this Contract is not a waiver by AGENCY of that or any other provision.

2.24 ASSIGNMENT OF ANTITRUST RIGHTS. Contractor irrevocably assigns to the State Of Oregon any claim for relief or cause of action which the Contractor now has or which may accrue to the Contractor in the future by reason of any violation of 15 U.S.C. § 1-15 or ORS 646.725 or ORS 646.730, in connection with any goods or services provided to the Contractor for the purpose of carrying out the Contractor's obligations under this Contract, including, at the State's option, the right to control any such litigation on such claim or relief or cause of action. Contractor shall require any subcontractors hired to perform any of Contractor's duties under this Agreement to irrevocably assign to the State of Oregon, as third party beneficiary, any right, title or interest that has accrued or which may accrue in the future by reason of any violation of 15 U.S.C. § 1-15 or ORS 646.725 or ORS 646.730, in connection with any goods or services provided to the subcontractor for the purpose of carrying out the subcontractor's obligations to the Contractor in pursuance of this Agreement, including, at the State's option, the right to control any such litigation on such claim or relief or cause of action.

III. SPECIAL TERMS FOR CONTRACTS UNDER THIS PRICE AGREEMENT

3.1 LICENSING AND CERTIFICATIONS. Contractor shall maintain, in current and valid form, all licenses and certificates required by law, regulation, or this Price Agreement when performing the Services. The Contractor shall also include in every subcontract a provision requiring the Subcontractor to have in current and valid form, all licenses and certificates required by law, regulation or this Price Agreement when performing the Services and shall verify that the Subcontractor has the licenses and certificates before permitting the Subcontractor to start work.

3.2 RESERVED

3.3 SERVICE REPRESENTATIVE. Contractor shall designate one (1) primary and one (1) backup person responsible for the Contractor's work under this Price Agreement. Contractor shall provide to the Price Agreement Authorized Representative for the AGENCY the names, addresses and telephone numbers, including after hours and emergency numbers of such persons and shall keep this information current with AGENCY at all times.

Primary Service Representative Name:

Title:

Address:

Contact Telephone Number:

Contact After Hours Telephone Number:

Contact Emergency Telephone Number:

Backup Service Representative Name:

Title:

Address:

Contact Telephone Number:

Contact After Hours Telephone Number:

Contact Emergency Telephone Number:

3.4 RESERVED

3.5 RESERVED

3.6 RESERVED

b. UPON COMPLETION: The AGENCY shall have 3 Business Days from date of notice of completion of performance by Contractor within which to conduct inspection and testing, and provide Contractor with written notification of acceptance or rejection. Notice of rejection shall include itemization of deficiencies, including but not limited to (a) discrepancies between the Services and Goods and the solicited for AGENCY specifications and Contractor's or manufacturer's specifications or literature, and (b) apparent defects in design, manufacture, materials, or workmanship, or (c) otherwise nonconforming Services or Goods (including late delivery).

c. CURE. In the event the AGENCY allows the Contractor an opportunity to cure defects, it shall so state in its notice of rejection. The Contractor shall make all corrections reasonably deemed necessary by the AGENCY within 3 calendar days of receipt of such notice. Failure to complete cure within the three (3) calendar days or such longer period as AGENCY may specify in such notice shall constitute a material default of the Contract Alternatively, AGENCY may, in its sole discretion, elect to have the Services performed by other forces and charge the cost to Contractor.

Notwithstanding the commencement of Contract payments, Services and Goods shall not be deemed accepted until the AGENCY has either confirmed acceptance in writing, or the inspection, testing, and notification period has expired, whichever occurs first.

CERTIFICATION AND SIGNATURE OF CONTRACTOR'S DULY AUTHORIZED REPRESENTATIVE

The undersigned acknowledges, attests and certifies individually and on behalf of the Contractor that:

(1) He/she is a duly authorized representative of the Contractor, has been authorized by Contractor to make all representations, attestations, and certifications contained in this Price Agreement, if any, issued, and to execute this Price Agreement on behalf of Contractor;

(2) The undersigned is authorized to act on behalf of Contractor and that Contractor is, to the best of the undersigned’s knowledge, not in violation of any Oregon Tax Laws. For purposes of this certification, “Oregon Tax Laws” means a state tax imposed by ORS 320.005 to 320.150 and 403.200 to 403.250 and ORS chapters 118, 314, 316, 317, 318, 321 and 323 and the elderly rental assistance program under ORS 310.630 to 310.706 and local taxes administered by the Department of Revenue under ORS 305.620.

(3) To the best of the undersigned’s knowledge, Contractor has not discriminated against and will not discriminate against minority, women or emerging small business enterprises certified under ORS 200.055 or against a business enterprise that is owned or controlled by or that employs a disabled veteran as defined in ORS 408.225 in obtaining any required subcontracts.

(4) Contractor and Contractor’s employees and agents are not included on the list titled “Specially Designated Nationals and Blocked Persons” maintained by the Office of Foreign Assets Control of the United States Department of the Treasury and currently found at http://www.treas.gov/offices/enforcement/ofac/sdn/t11sdn.pdf;

(5) Contractor is bound by and will comply with all requirements, terms and conditions contained in this Price Agreement (including all listed attachments and Exhibits, and amendments, if any).

(6) Contractor ___ is / ___ is not a nonresident alien as defined in 26 USC § 7701(b)(1) (check one).

Contractor (Type or Print Contractor’s name):

Business Address:

Authorized Signature:

By (Type or print name):

Title: Date:

Authorized Representative (Type or Print):

Authorized Representative’s Signature:

Authorized Representative’s Title:

Telephone Number: Fax Number:

E-mail Address:

SIGNATURE OF OREGON STATE POLICE’S AUTHORIZED REPRESENTATIVE

Authorized Signature:

By (Type or print name):

Title: Date:

Exhibit A

STATEMENT OF SERVICES

DEFINITIONS:

1. "Business Days" means 8:00 a.m. to 5:00 p.m., Pacific time, Monday through Friday, excluding State of Oregon holidays.

SERVICES:

Services shall be performed WORK REQUEST: AGENCY may request

RESPONSE TIME: ???

Exhibit B

PRICES

EXHIBIT C

INSURANCE

INSURANCE REQUIREMENTS:

Contractor shall obtain at Contractor’s expense the insurance specified in this Exhibit prior to performing under this Contract and shall maintain it in full force and at its own expense throughout the duration of this Contract, as required by any extended reporting period or continuous claims made coverage requirements, and all warranty periods that apply. Contractor shall obtain the following insurance from insurance companies or entities that are authorized to transact the business of insurance and issue coverage in the State of Oregon and that are acceptable to Agency. Coverage shall be primary and non-contributory with any other insurance and self-insurance, with the exception of Professional Liability and Workers’ Compensation. Contractor shall pay for all deductibles, self-insured retention and self-insurance, if any.

WORKERS’ COMPENSATION & EMPLOYERS’ LIABILITY

All employers, including Contractor, that employ subject workers, as defined in ORS 656.027, shall comply with ORS 656.017 and provide workers' compensation insurance coverage for those workers, unless they meet the requirement for an exemption under ORS 656.126(2). Contractor shall require and ensure that each of its subcontractors complies with these requirements. If Contractor is a subject employer, as defined in ORS 656.023, Contractor shall also obtain employers' liability insurance coverage with limits not less than $500,000 each accident. If Contractor is an employer subject to any other state’s workers’ compensation law, Contactor shall provide workers’ compensation insurance coverage for its employees as required by applicable workers’ compensation laws including employers’ liability insurance coverage with limits not less than $500,000 and shall require and ensure that each of its out-of-state subcontractors complies with these requirements.

COMMERCIAL GENERAL LIABILITY:

|X| Required Commercial General Liability Insurance covering bodily injury and property damage in a form and with coverage that are satisfactory to the State. This insurance shall include personal and advertising injury liability, products and completed operations, contractual liability coverage for the indemnity provided under this contract, and have no limitation of coverage to designated premises, project or operation. Coverage shall be written on an occurrence basis in an amount of not less than $1,000,000 per occurrence. Annual aggregate limit shall not be less than $2,000,000.

AUTOMOBILE LIABILITY INSURANCE:

|_| Required |_| Not required Automobile Liability Insurance covering Contractor’s business use including coverage for all owned, non-owned, or hired vehicles with a combined single limit of not less than $1,000,000 for bodily injury and property damage. This coverage may be written in combination with the Commercial General Liability Insurance (with separate limits for Commercial General Liability and Automobile Liability). Use of personal automobile liability insurance coverage may be acceptable if evidence that the policy includes a business use endorsement is provided.

EXCESS/UMBRELLA INSURANCE:

A combination of primary and excess/umbrella insurance may be used to meet the required limits of insurance.

ADDITIONAL INSURED:

All liability insurance, except for Workers’ Compensation, Professional Liability, and Network Security and Privacy Liability (if applicable), required under this Contract must include an additional insured endorsement specifying the State of Oregon, its officers, employees and agents as Additional Insureds, including additional insured status with respect to liability arising out of ongoing operations and completed operations, but only with respect to Contractor's activities to be performed under this Contract. Coverage shall be primary and non-contributory with any other insurance and self-insurance. The Additional Insured endorsement with respect to liability arising out of your ongoing operations must be on ISO Form CG 20 10 07 04 or equivalent and the Additional Insured endorsement with respect to completed operations must be on ISO form CG 20 37 07 04 or equivalent.

WAIVER OF SUBROGATION:

Contractor shall waive rights of subrogation which Contractor or any insurer of Contractor may acquire against the Agency or State of Oregon by virtue of the payment of any loss. Contractor will obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the Agency has received a waiver of subrogation endorsement from the Contractor or the Contractor’s insurer(s).

CONTINUOUS CLAIMS MADE COVERAGE:

If any of the required liability insurance is on a claims made basis and does not include an extended reporting period of at least 24 months, then Contractor shall maintain continuous claims made liability coverage, provided the effective date of the continuous claims made coverage is on or before the effective date of the Contract, for a minimum of 24 months following the later of:

1. Contractor ’s completion and Agency’s acceptance of all Services required under the Contract, or

1. Agency or Contractor termination of this Contract, or

1. The expiration of all warranty periods provided under this Contract.

CERTIFICATE(S) AND PROOF OF INSURANCE:

Contractor shall provide to Agency Certificate(s) of Insurance for all required insurance before delivering any Goods and performing any Services required under this Contract. The Certificate(s) shall list the State of Oregon, its officers, employees and agents as a Certificate holder and as an endorsed Additional Insured. The Certificate(s) shall also include all required endorsements or copies of the applicable policy language effecting coverage required by this Contract. If excess/umbrella insurance is used to meet the minimum insurance requirement, the Certificate of Insurance must include a list of all policies that fall under the excess/umbrella insurance. As proof of insurance Agency has the right to request copies of insurance policies and endorsements relating to the insurance requirements in this Contract.

NOTICE OF CHANGE OR CANCELLATION:

The Contractor or its insurer must provide at least 30 days’ written notice to Agency before cancellation of, material change to, potential exhaustion of aggregate limits of, or non-renewal of the required insurance coverage(s).

INSURANCE REQUIREMENT REVIEW:

Contractor agrees to periodic review of insurance requirements by Agency under this Contract and to provide updated requirements as mutually agreed upon by Contractor and Agency.

STATE ACCEPTANCE:

All insurance providers are subject to Agency acceptance. If requested by Agency, Contractor shall provide complete copies of insurance policies, endorsements, self-insurance documents and related insurance documents to Agency’s representatives responsible for verification of the insurance coverages required under this Exhibit.

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