Sample PA.pdf

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STATE OF OREGON

PRICE AGREEMENT PO-10700-00XXXXXX

FOR

WINDOW WASHING SERVICES

BETWEEN

STATE OF OREGON DEPARTMENT OF ADMINISTRATIVE

SERVICES, STATE PROCUREMENT SERVICES, ON BEHALF OF

THE DEPARTMENT OF ADMINISTRATIVE SERVICES,

ENTERPRISE ASSET MANAGEMENT DIVISION

Price Agreement Contract Administrator: Yulia Niece, Procurement Contract

Specialist Address: 1225 Ferry St., SE, Salem, OR 97301 Phone: (971) 719-3087 Email: yulia.niece@das.oregon.gov

AND

[CONTRACTOR NAME]

Contract Administrator: [Name, Title] Address: [Street Address] Phone: [Phone] Email: [Email]

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TABLE OF CONTENTS

AGREEMENT

1.1 PARTIES

1.2 DEFINITIONS

1.3 TERM OF AGREEMENT; RENEWALS AND EXTENSIONS

1.4 TERMINATION OF AGREEMENT

1.5 ORDERING INSTRUMENTS, PURCHASE ORDERS

1.6 PRICES

1.7 INSURANCE

1.8 MISCELLANEOUS

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 AND STOP WORK

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

2.30 OREGON FALSE CLAIMS

SPECIAL TERMS FOR CONTRACTS UNDER THIS AGREEMENT

3.1 LICENSING AND CERTIFICATIONS

3.2 KEY PERSONNEL CONTACTS

3.3 ACCESS CARDS; KEYS

3.4 CONTRACTOR’S EMPLOYEES; SUBCONTRACTORS

3.5 CONFIDENTIALITY

3.6 PARKING

SIGNATURE OF CONTRACTOR’S DULY AUTHORIZED

REPRESENTATIVE

SIGNATURE OF AGENCY

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LIST OF EXHIBITS:

EXHIBIT A DESCRIPTION OF THE SERVICES AND PRICES…………………………………………………..28

EXHIBIT A-1 – SELECT SERVICE LOCATIONS CLEANING

REQUIREMENTS…………………………………………………………………….32

EXHIBIT A-2 – SERVICE LOCATIONS AND PRICING……………………………………….36

EXHIBIT B PURCHASE ORDER FORM…………………………………………………………………………………41

EXHIBIT C INSURANCE REQUIREMENTS…………………………………………………………………………….42

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This Price Agreement (“Agreement’) is between the State of Oregon, acting by and through its Department of Administrative Services, State Procurement Services (“Agency” or “DAS SPS”), on behalf of the Department of Administrative Services, Enterprise Asset Management Division (“Authorized Purchaser” or “DAS EAM”) and [insert Contractor’s name], a [insert state of incorporation] (“Contractor”).

AGREEMENT

1.1 PARTIES

1.1.1 The only parties to this Agreement are Agency and Contractor.

1.1.2 Authorized Purchaser may order Services and related Goods, if any, as specified in Exhibit A by issuing Purchase Orders that create and become part of separate contract (“Contract”). The only parties to Contract created by Purchase Order are the Authorized Purchaser and Contractor.

Agency is an intended beneficiary of each Contract created by an ordering instrument.

1.2 DEFINITIONS

“Agency” means Department of Administrative Services, State Procurement Services (also referred as “DAS SPS”).

“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 and Authorized Purchaser.

“Authorized Purchaser” means Department of Administrative Services, Enterprise Asset Management Division (also referred as “DAS EAM”).

“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.

“Business Hours” 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, Agency, and Authorized Purchaser, comprised of a signed Purchase Order and this Price Agreement, including any exhibits and amendments.

“DAS EAM” means Department of Administrative Services, Enterprise Asset Management (also referred to as “Authorized Purchaser”).

“DAS SPS” means Department of Administrative Services, State Procurement Services (also referred as “Agency”).

"Goods" means the individual items, if any, described in Exhibit A to be purchased by Contractor under a Purchase Order that are incidental to the Services.

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

"Purchase Order" means the ordering instrument between Authorized Purchaser and Contractor substantially in the form attached as Exhibit B.

"Services" means the services, described in Exhibit A to be performed by Contractor under a Contract.

“Service Locations” means buildings, structures, offices, and other real property owned by Department of Administrative Services located in Salem, Eugene, and Portland and surrounding areas and as listed in Exhibit A-2, where Services to be provided.

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

"State" means the State of Oregon.

“Writing” or “Written” means letters, characters and symbols inscribed on paper by hand, print, type or other method of impression, intend to represent or convey particular ideas or meanings. “Writing” or “Written” when required or permitted by law, or required or permitted in a Solicitation Document, also means letters, characters and symbols made in electronic form and intended to represent or convey particular ideas or meanings.

1.3 TERM OF AGREEMENT; RENEWALS AND EXTENSIONS

1.3.1 Initial Term of the 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/2028 unless sooner terminated or extended as provided in this Agreement.

1.3.2 Renewals and Extensions

The parties may extend this Agreement for additional two (2)-year terms. If Agency desires to extend this Agreement, then ninety (90) Calendar Days before the expiration of the then-current term, Agency shall cause Authorized Purchaser to send a Written notice (“Renewal Notice”) to Contractor’s Primary Contact identified in Section 3.3.2 presenting three (3) options: (a) no extension; (b) extend with no price increase; or (c) extend with price increase.

Contractor shall select one (1) option and respond directly to Authorized Purchaser’s key person (designated per Section 3.3.1) for the management of this Agreement by signing and returning the Renewal Notice within the time period specified therein. If the Contractor does not consent to the extension, this Agreement shall expire according to its terms, unless earlier terminated. If Contractor desires a price increase, Contractor shall submit the documentation specified in Section 1.6.4. The maximum term of this Agreement including any extensions (including extension under Section 1.3.3 below) shall not exceed ten (10) years and one (1) month at Agency’s discretion. The initial term and all extension terms are collectively referred to as the “Term” of this Agreement.

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1.3.3 One Month Extension Option

Agency has the right , in its sole discretion, to extend the term of this Agreement for not more than one (1) calendar month beyond its ten (10)-year term. Agency will notify Contractor in Writing that the Agency intends to add the one (1) month extension at least thirty (30) Calendar Days before the ten (10)-year term expires. Contractor shall not increase pricing or decrease Services during the one (1) month extension under this Section 1.3.3.

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 thirty (30) Calendar Days Written notice to Contractor.

1.4.3 Effect of Termination.

Once this Agreement is terminated, Contractor shall not accept new Contracts or Purchase Orders.

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

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

1.5 ORDERING INSTRUMENTS, PURCHASE ORDERS

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 Purchase Order(s) or any other ordering instrument of Authorized Purchaser 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 Purchase Orders from Authorized Purchaser that comply with the provisions of this Agreement until this Agreement terminates. Accepted Purchase Orders must contain all required information provided in Exhibit B, Purchase Order Form, including, but not limited to the following:

• Price Agreement #;

• Purchase Order #;

• Service Location(s);

• Description of requested Services;

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• Service schedule and/or delivery date;

• Authorized Purchaser’s accounts payable address for invoicing;

• Authorized Purchaser’s Authorized Representative contact information.

1.5.3 A Purchase Order 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 Purchase Order, or ii) by e-mail if that information is evident on the Purchase Order. Contractor shall specify the reason(s) for rejection.

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

1.5.5 Authorized Purchaser shall issue an individual Purchase Order for all Services specified in Exhibit A on an as-needed basis. Nothing in this Agreement obligates Authorized Purchaser to place any Purchase Order.

1.5.6 Contractor shall reject a Purchase Order from any entity that is not an Authorized Purchaser under this Agreement.

1.6 PRICES

1.6.1 Except as provided in this Section, during the Term of this Agreement, Contractor shall offer Services and related Goods, if any, to Authorized Purchaser at prices that do not exceed the prices listed in Exhibit A-2, Service Locations and Pricing.

1.6.2 Contractor and Agency may agree to lower prices for Services and related Goods, if any. Those lower prices apply only to applicable Contracts between Contractor and Authorized Purchaser.

1.6.3 Price Decrease

Agency shall be given the immediate benefit of any price decrease 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 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.

Contractor shall subtract from prices charged to Authorized Purchaser 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 Price Agreement Contract Administrator of the amount and effective date of the decrease.

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1.6.4 Price Adjustment

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

All prices are firm for the initial term of this Price Agreement. Contractor may request price increases from Agency only at the time of the renewal by responding to a Renewal Notice in the manner described in Section 1.3.2. The request must show all proposed increases by line item and include supporting documentation acceptable to Agency. Agency may require Contractor to provide U.S. Bureau of Labor Statistics Producer Price Index or Consumer Price Index data or any other relevant industry data substantiating the increase. However, a price increase may not produce a higher profit margin for Contractor than at the beginning of the initial term of this Agreement.

1.7 INSURANCE

Contractor shall obtain insurance coverage 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.

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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: email or United States Postal Service (“USPS”) with postage prepaid.

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

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.

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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 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 this 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

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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 Purchase Order and the provisions in Sections 2 and 3 of this Agreement. In the event of a conflict between the Purchase Order and provisions in Sections 2 and 3, the provisions in Sections 2 and 3 take precedence.

2.2 PAYMENT

Contractor shall look solely to Authorized Purchaser for payment of all amounts that may be due under the Contract. AUTHORIZED PURCHASER IS SOLELY RESPONSIBLE FOR PAYMENT UNDER THE CONTRACT. Subject to Authorized Purchaser’s acceptance of Services and related Goods, if any, payment is due from Authorized Purchaser within 45 Calendar Days after the date of the invoice.

2.3 OVERDUE CHARGES

At Contractor’s option, it may assess overdue account charges to Authorized Purchaser up to a maximum rate of two-thirds of one percent per month (8% per annum) or the maximum allowed by law.

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2.4 PAYMENT ADDRESS

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

2.5 INVOICES

2.5.1 Contractor shall invoice Authorized Purchaser only for completed and accepted Services and/or related Goods. Invoices must be separated by Service Location as listed in Exhibit A- 2, Service Locations and Pricing. Contractor shall send all invoices to the address provided by Authorized Purchaser for that purpose.

2.5.2 Contractor shall include all of the following in its invoice:

• Price Agreement number.

• Purchase Order number.

• Service Location(s) (separated by site #/Service area).

• Description and volume or quantity of Services performed.

• Delivery Date of Services.

• The total amount invoiced.

• The address to which payment is to be sent.

2.5.3 Submit Invoices To. Contractor shall submit all invoices to the following contact:

DEPARTMENT OF ADMINISTRATIVE SERVICES

ENTERPRISE ASSET MANAGEMENT DIVISION

ADMINISTRATION – CONTRACTS SERVICES

ATTN: CONTRACTS – ACCOUNTS PAYABLE

1225 FERRY STREET SE, U100

SALEM, OR 97301

PHONE: 503-881-6505

EMAIL: EAM.CONTRACTS@DAS.OREGON.GOV

2.5.4 Contractor shall provide receipts or vouchers showing payments on all materials, labor, and subcontracts. Authorized Purchaser reserves the right to withhold all or part of the payment until Authorized Purchaser accepts the Services.

2.6 PRICES

Contractor represents all prices for Services and related Goods, if any, under the Contract are equal to or better than the prices listed in Exhibit A-1 of the Agreement.

2.7 CANCELLATION, INSPECTIONS AND ACCEPTANCE

Authorized Purchaser may cancel an order in whole or in part before Services are performed.

Authorized Purchaser has fourteen (14) Calendar Days from date of completion of Services to inspect and accept or reject the Services. If the Services are rejected, Authorized Purchaser shall provide Contractor with Written notice of rejection. Notice of rejection must include itemization of apparent defects, including but not limited to (i) discrepancies between the Services provided mailto:EAM.CONTRACTS@DAS.OREGON.GOV

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2.7.1 Authorized Purchaser may elect to have Contractor cure defects and make all corrections reasonably deemed within the timeframe specified in the notice of rejection. Failure to complete cure within the specified timeframe constitute a material default of the Contract.

Alternatively, Authorized Purchaser may, in its sole discretion, elect to have the Services performed by other forces and charge the cost to Contractor.

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

2.7.3 Notwithstanding the commencement of Contract payments, Services and related Goods shall not be deemed accepted until the Authorized Purchaser has either confirmed acceptance in Writing, or the inspection and notification period has expired, whichever occurs first.

2.7.4 Contractor’s failure to deliver the Services in accordance with the requirements of the Contract is a material breach of this Agreement.

2.8 REPRESENTATIONS AND WARRANTIES

2.8.1 Officer Status, Insurance

Contractor represents and warrants that it is not an “officer,” “employee,” or “agent” of Agency or Authorized Purchaser, as those terms are used in ORS 30.265. Contractor represents and warrants that Contractor has obtained and will maintain during the term of the 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 Service Standards

Contractor warrants that all Services required to be performed shall be performed in a good and workmanlike manner in accordance with standards prevalent in the industry and shall be in compliance with and meet or exceed all specifications in Exhibit A to the Price Agreement.

2.8.4 Warranty of Title

Contractor represents and warrants that all Goods, if any, 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 Authorized Purchaser under the Contract.

2.8.5 Warranty on Safety and Health Requirements

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Contractor represents and warrants that Goods provided, if any, or materials used for the Services under the 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.

2.8.6 Warranties are Cumulative

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

2.9 COMPLIANCE WITH APPLICABLE LAWS AND STANDARDS

Contractor shall comply with all federal, state and local laws, regulations, and ordinances applicable to the Contract as they may be adopted or amended from time to time.

2.9.1 Noncompliant Goods

In the event of a conflict between the specifications in the Contract and applicable federal or State law, the law prevails over the specifications. 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 Authorized Purchaser.

2.10 FOREIGN CONTRACTOR

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

2.11 SAFETY DATA SHEET

Contractor shall provide Authorized Purchaser at time of delivery with a Safety Data Sheet (SDS) as defined by the Occupational Safety and Health Administration (OSHA) for Goods provided, if any, or materials used under the Contract which may release or otherwise result in exposure to a hazardous chemical under normal conditions of use. In addition, Contractor must properly label, tag or mark such Goods or materials. Additionally, Contractor shall deliver Environmental Protection Agency labels and SDS information if available and as requested by Authorized Purchaser.

2.12 TIME IS OF THE ESSENCE

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

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2.13 FORCE MAJEURE

Neither Authorized Purchaser, nor Contractor shall be held responsible for delay or default caused by an event which is beyond the party’s reasonable control. In the event of any such delay, Contractor’s obligations are suspended to the extent of and for the duration of such causes.

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 the Contract. Authorized Purchaser may terminate the Contract upon Written notice to Contractor after reasonably determining that such delay or default will likely prevent successful performance of the Contract.

2.14 FUNDS AVAILABLE AND AUTHORIZED

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

2.15 INDEPENDENT CONTRACTOR STATUS; RESPONSIBILITY FOR TAXES AND WITHHOLDING

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

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

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

2.16 INDEMNIFICATION

2.16.1 Contractor shall defend, save, hold harmless, and indemnify the State, Authorized Purchaser, and their officers, employees and agents from and against all third party claims, suits, actions, proceedings, losses, damages, statutory penalties, liabilities, awards and costs of every kind and description (including reasonable attorney’s fees and expenses at trial, on appeal and in connection with any petition for review) (collectively, “Claim”) which may be brought or made against the State, Authorized Purchaser, or their officers, employees or agents, arising out of or related to (i) any personal injury, death or property damage caused by any defect in the Goods or any alleged act, omission, error, fault, mistake or negligence of Contractor, its employees, agents, related to the Contract, (ii) any act or omission by Contractor that constitutes a material breach of the 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 Services or by delivery or use of related Goods, if any. Authorized

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Purchaser or State shall promptly notify Contractor in Writing of any claim of which Authorized Purchaser or State becomes aware. Contractor’s obligation under this section shall not extend to any Claim primarily caused by (i) the negligent or willful misconduct of Authorized Purchaser, or (ii) Authorized Purchaser’s modification to Services or related Goods, if any, without Contractor’s approval and in a manner inconsistent with the purpose of the Services and proper usage of related Goods.

2.16.2 The Oregon Attorney General must give Written authorization to any legal counsel purporting to act in the name of, or represent the interests of, the State or its officers, employees and agents prior to such action or representation. Further, the State, acting by and through its Department of Justice, may assume its own defense, including its officers, employees and agents, at any time when, in the State’s sole discretion, it determines (i) proposed counsel is prohibited from the particular representation contemplated; (ii) Counsel is not adequately defending or able to defend the interests of the State, its officers, employees or agents; (iii) important governmental interests are at stake; or (iv) the best interests of the State are served thereby. Contractor’s obligation to pay for all costs and expenses shall include those incurred by the State in assuming its own defense and its officers, employees, or agents under (i) and (ii) above.

2.17 EVENTS OF DEFAULT

2.17.1 By Contractor

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

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

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

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

• Contractor fails to comply with its obligations in Section 2.27.1, Prompt Payment to Subcontractor, and has not cured the non-performance within the period specified in Authorized Purchaser’s Written notice of rejection or notice to cure.

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

2.17.2 By Authorized Purchaser

Authorized Purchaser will be in default of a Contract if:

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

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• Authorized Purchaser violates any provision, covenant, warranty, or obligation or fails to perform under the 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.

2.18 REMEDIES

2.18.1 Authorized Purchaser’s Remedies

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

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

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

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

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

• Undertaking collection by administrative offset, or garnishment if applicable, of all monies due for performed Services or delivered Goods to recover liquidated and delinquent debt owed to the State or any department or agency of the State. Offsets or garnishment may be initiated only after the Contractor has been given: i) Written notice of the type and amount of the debt, the intention of the State to use administrative offset or garnishment to collect the debt, and an explanation of the debtor's rights under applicable law; and ii) the opportunity to make a Written agreement to repay the debt; or

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

• Withholding of Amounts Due Subcontractors. If Contractor does not satisfy its prompt payment obligations to a subcontractor within thirty (30) Calendar Days after receiving Written notice from Authorized Purchaser of Contractor’s failure to perform its prompt payment obligations, Authorized Purchaser may withhold, from any amounts otherwise payable and due to Contractor, an amount equal to 100 percent of an amount not paid to a subcontractor in accordance with Contractor’s prompt payment obligations, plus interest at 8 % per annum.

o Authorized Purchaser may pay, from the withheld amounts, amount due to the subcontractor plus interest. Authorized Purchaser payment under this section is a deduction from Authorized Purchaser’s payment obligation to Contractor under the

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Contract, and Contractor will have no claim against Authorized Purchaser for any amounts paid to its subcontractor under this section.

This subsection imposes no obligation on Authorized Purchaser to withhold any sums, or to pay any sums to any subcontractor, and creates no third-party beneficiary status or right to enforce on the part of any subcontractor.

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

2.18.2 Contractor’s Remedies

If Authorized Purchaser terminates a Contract, or if Authorized Purchaser is in default under Section 2.17.2 and whether or not Contractor elects to exercise its right to terminate the Contract under Section 2.19.3, Contractor’s sole remedy is: (a) A claim against Authorized Purchaser for the unpaid Services performed and accepted by Authorized Purchaser, (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 Authorized Purchaser, 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 Authorized Purchaser, less previous amounts paid and any claim(s) which Authorized Purchaser has against Contractor. If previous amounts paid to Contractor exceed the amount due to Contractor under this Section, Contractor shall pay any excess to Authorized Purchaser immediately upon Written demand.

2.19 TERMINATION AND STOP WORK

2.19.1 By Mutual Agreement

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

2.19.2 Rights of Authorized Purchaser

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

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

• Authorized Purchaser may, in its sole discretion, terminate the Contract for convenience upon thirty (30) Calendar Days prior Written notice.

• Authorized Purchaser may terminate a Contract immediately upon notice to Contractor, or at such later date as Authorized Purchaser may establish in such notice, upon the

DAS Procurement Services, Version 2.0 – June 3, 2021 Page 19 of 45 occurrence of any of the following events: (a) Authorized Purchaser fails to receive funding, appropriations, limitations, allotments, or other expenditure authority sufficient to allow Authorized Purchaser, in the exercise of its reasonable administrative discretion, to meet its payment obligations under a Contract; (b) federal or state laws, regulations, or guidelines are modified or interpreted in such a way that either the purchase of the Services by Authorized Purchaser under the Contract is prohibited, or Authorized Purchaser is prohibited from paying for such Services from the planned funding sources;

or (c) Contractor is in default of the Contract under Section 2.17.1 and has failed to cure the default. Upon receipt of Written notice of termination, Contractor shall stop performance under the Contract if, and as, directed by Authorized Purchaser.

2.19.3 Rights of the Contractor

Contractor may terminate a Contract upon thirty (30) Calendar Days prior Written notice to the Authorized Purchaser, if Authorized Purchaser is in default of a Contract as described in Section 2.17.2.

2.20 ACCESS TO RECORDS

Contractor shall retain, maintain, and keep accessible all records relevant to the 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 the Contract, or until the conclusion of any audit, controversy or litigation arising out of or related to the Contract, whichever date is later. Financial Records will be kept in accordance with Generally Accepted Accounting Principles (“GAAP”).

During the record-retention period established in this Section, Contractor shall permit the State, Authorized Purchaser, their duly authorized representatives, and the federal government access to the Records at a reasonable time and place for purposes of examination and copying.

2.21 NOTICES

Except as otherwise expressly provided in the Contract, any notices sent between Authorized Purchaser and Contractor are effective only if in Writing and addressed to the assigned Contract Administrator or Authorized Representatives of the parties as designated in the Contract. A party may change its Contract Administrator or Authorized Representative upon Written notice to the other party. The following methods of delivery may be used: Email or United States Postal Service (“USPS”) with postage prepaid. For confirmation of delivery to the recipient, sender guidelines are as follows:

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

2.22 ORDERING ACKNOWLEDGEMENTS

The parties acknowledge and agree other than designation of order quantities, types of 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 Services under the Contract and no other terms or conditions contained in

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2.23 GOVERNING LAW

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

2.24 VENUE; CONSENT TO JURISDICTION

Any Claims between Authorized Purchaser and Contractor arising from or relates to the Contract shall be brought and conducted solely and exclusively within the Circuit Court of Marion County for the State of Oregon; provided, however, if a Claim must be brought in a federal forum, then unless otherwise prohibited by law it shall be brought and conducted solely and exclusively within the United States District Court for the District of Oregon. CONTRACTOR HEREBY CONSENTS TO

THE IN PERSONAM JURISDICTION OF SAID COURTS AND WAIVES ANY OBJECTION TO VENUE IN

SUCH COURTS, AND WAIVES ANY CLAIM THAT SUCH FORUM IS AN INCONVENIENT FORUM.

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

2.25 SURVIVAL

The following provisions survive termination or expiration of the Contract: Sections 2.8, 2.9, 2.19, 2.20, 2.23, 2.24, 2.26, 2.27; “CONTINUOUS CLAIMS MADE COVERAGE” as defined in Exhibit C, Insurance Requirements.

2.26 SEVERABILITY

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

2.27 ASSIGNMENTS, SUBCONTRACTS, AND SUCCESSORS

Contractor shall not assign, sell, transfer, or subcontract rights, or delegate responsibilities under the Contract, in whole or in part, without the prior Written approval of the Authorized Purchaser.

Further, no such Written approval shall relieve Contractor of any obligations under the Contract, and any assignee, transferee, or delegate shall be considered the agent of Contractor.