TE25003c Exhibit D Contract.docx

CONTRACT

NO. TE25003

TURNKEY TRUCK

By and Between

STATE OF WASHINGTON

DEPARTMENT OF DEPARTMENT OF TRANSPORTATION

and

Dated _____________________, 2025

CONTRACT NO. TE25003 – TURNKEY TRUCK 1

(Rev. 2020-03-11) CONTRACT Comment by Hoffert, Sean: This is an example of what the contract may look like. There is no need to submit this with your bid.

NO. TE25003

TURNKEY TRUCK

This Contract (“Contract”) is made and entered into by and between the State of Washington acting by and through the Department of Transportation, a Washington State governmental agency and ____________________, a ________________ (“Contractor”) and is dated and effective as of _______________ __, 2025.

R E C I T A L S A. Pursuant to Legislative direction codified in RCW chapter 39.26, Department of Transportation, on behalf of the State of Washington, is authorized to develop, solicit, and establish Contracts for goods and/or services for general use by Washington state agencies and certain other entities (eligible purchasers).

B. On behalf of the State of Washington, Department of Transportation, as part of a competitive governmental procurement, issued Competitive Solicitation No. TE25003 dated __________, 2025.

C. Department of Transportation evaluated all responses to the Competitive Solicitation and identified Contractor as the apparent successful bidder.

D. Department of Transportation has determined that entering into this Contract will meet the identified needs and be in the best interest of the State of Washington.

E. The purpose of this Contract is to enable eligible purchasers to purchase the goods as set forth herein.

A G R E E M E N T NOW THEREFORE, in consideration of the mutual promises, covenants, and conditions set forth herein, the parties hereto hereby agree as follows:

1. TERM. The term of this Contract is for five (5) years.

2. SCOPE – INCLUDED GOODS/SERVICES AND PRICE.

2.1. CONTRACT SCOPE. Pursuant to this Contract, Contractor is authorized to sell only those goods and/or services set forth in Exhibit A – Specifications/Prices for the prices set forth in Exhibit B – Special Terms & Conditions. Contractor shall not represent to any Purchaser under this Contract that Contractor has contractual authority to sell any goods and/or services beyond those set forth in Exhibit A – Specifications/Prices.

2.2. STATE’S ABILITY TO MODIFY SCOPE OF CONTRACT. Subject to mutual agreement between the parties, Department of Transportation reserves the right to modify the goods and/or services included in this Contract; Provided, however, that any such modification shall be effective only upon thirty (30) days advance written notice; and Provided further, that any such modification must be within the scope of this Contract.

2.3. ECONOMIC ADJUSTMENT. Beginning twelve (12) months after the effective date of this Contract and for every twelve (12) months thereafter, the prices set forth in Exhibit A shall be assessed, based upon the percent changes (whether up or down) in the United States Department of Labor, Bureau of Labor and Statistics (BLS) Consumer Price Index Inflation (CPI) Calculator. The calculator shall be used as an indicator for adjustment. If an increase is requested, it shall not exceed more than five (5) percent of the initial cost of $#######. described below, for the most recent year.

In addition, Contractor may, at least 60 days prior to each anniversary of this Contract, provide documentation to WSDOT that Contractor’s cost of materials, supplies, components, and/or parts have increased to support the CPI Calculator. The parties shall then have 45 days after such notice to mutually agree on a price increase in addition to the above Consumer Price Index Inflation (CPI) Calculator. If the parties are unable to agree on this additional price increase or decrease, then this Contract shall terminate as of the next anniversary date. Such termination shall not cancel existing orders which orders shall be filled on the terms previously agreed.

Global, national, and regional events, such as natural disasters, acts of God, acts of war or terrorism, political unrest, pandemics, and pestilence shall be taken into consideration when addressing price adjustments in the future. Should any of these matters disclosed above or to be addressed in the future have an impact in prices, supporting documentation shall be provided to the WSDOT TEF Contracting Manager for determination.

2.4. SURCHARGES. Washington State Department of Transportation (WSDOT) customers will obtain the surcharge from the bidder at the time of ********. The bidder shall give an estimate of the surcharge at the time of the order. This surcharge can be a dollar amount or percentage. This surcharge will not change once the order has shipped. The surcharge shall not increase more than 2% of the estimated surcharge. Surcharges are used to produce goods (raw material, labor rates, etc.) and shall be used on a pass-through basis not to increase profits. The bidder may be asked to show proof of the surcharge of the order in question.

2.5. PRICE CEILING. Although Contractor may offer lower prices to Purchasers, during the term of this Contract, Contractor guarantees to provide the Goods are no greater than the prices set forth in Exhibit B – Special Terms & Conditions (subject to surcharges as set forth herein).

2.6. CONTRACT INFORMATION. Department of Transportation shall maintain and provide information regarding this Contract, including scope and pricing, to eligible Purchasers.

3. CONTRACTOR REPRESENTATIONS AND WARRANTIES. Contractor makes each of the following representations and warranties as of the effective date of this Contract and at the time any order is placed pursuant to this Contract. If, at the time of any such order, Contractor cannot make such representations and warranties, Contractor shall not process any orders and shall, within three (3) business days notify Department of Transportation, in writing, of such breach.

3.1. QUALIFIED TO DO BUSINESS. Contractor represents and warrants that it is in good standing and qualified to do business in the State of Washington, that it is registered with the Washington State Department of Revenue and the Washington Secretary of State, that it possesses and shall keep current all required licenses and/or approvals, and that it is current, in full compliance, and has paid all applicable taxes owed to the State of Washington.

3.2. SUSPENSION & DEBARMENT. Contractor represents and warrants that neither it nor its principals or affiliates presently are debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in any governmental contract by any governmental department or agency within the United States.

3.3. QUALITY OF GOODS OR SERVICES. Contractor represents and warrants that any goods and/or services sold pursuant to this Contract shall be merchantable, shall conform to this Contract and Purchaser’s Purchase Order, shall be fit and safe for the intended purposes, shall be free from defects in materials and workmanship, and shall be produced and delivered in full compliance with applicable law. Contractor further represents and warrants it has clear title to the goods and that the same shall be delivered and the services provided free of liens and encumbrances and that the same do not infringe any third-party patent. Upon breach of warranty, Contractor will repair or replace (at no charge to Purchaser) any goods and/or services whose nonconformance is discovered and made known to the Contractor. If, in Purchaser’s judgment, repair or replacement is inadequate, or fails of its essential purpose, Contractor will refund the full amount of any payments that have been made. The rights and remedies of the parties under this warranty are in addition to any other rights and remedies of the parties provided by law or equity, including, without limitation, actual damages, and, as applicable and awarded under the law, to a prevailing party, reasonable attorneys’ fees and costs.

3.4. WAGE VIOLATIONS. Contractor represents and warrants that, during the term of this Contract and the three (3) year period immediately preceding the award of the Contract, it is not determined, by a final and binding citation and notice of assessment issued by the Washington Department of Labor and Industries or through a civil judgment entered by a court of limited or general jurisdiction, to be in willful violation of any provision of Washington state wage laws set forth in RCW chapters 49.46, 49.48, or 49.52.

3.5. PAY EQUALITY. Contractor represents and warrants that, among its workers, similarly employed individuals are compensated as equals. For purposes of this provision, employees are similarly employed if the individuals work for the same employer, the performance of the job requires comparable skill, effort, and responsibility, and the jobs are performed under similar working conditions. Job titles alone are not determinative of whether employees are similarly employed. Contractor may allow differentials in compensation for its workers based in good faith on any of the following: a seniority system; a merit system; a system that measures earnings by quantity or quality of production; a bona fide job-related factor or factors; or a bona fide regional difference in compensation levels. A bona fide job-related factor or factors may include, but not be limited to, education, training, or experience that is: consistent with business necessity; not based on or derived from a gender-based differential; and accounts for the entire differential. A bona fide regional difference in compensation level must be consistent with business necessity; not based on or derived from a gender-based differential; and account for the entire differential. Notwithstanding any provision to the contrary, upon breach of warranty and Contractor’s failure to provide satisfactory evidence of compliance within thirty (30) days, Department of Transportation may suspend or terminate this Contract and any Purchaser hereunder similarly may suspend or terminate its use of the Contract and/or any agreement entered into pursuant to this Contract.

3.6. EXECUTIVE ORDER 18-03 – WORKERS’ RIGHTS. Contractor represents and warrants, as previously certified in Contractor’s Bidder’s Certification, that Contractor does NOT require its employees, as a condition of employment, to sign or agree to mandatory individual arbitration clauses or class or collective action waivers. Contractor further represents and warrants that, during the term of this Contract, Contractor shall not, as a condition of employment, require its employees to sign or agree to mandatory individual arbitration clauses or class or collective action waivers.

3.7. PROCUREMENT ETHICS & PROHIBITION ON GIFTS. Contractor represents and warrants that it complies fully with all applicable procurement ethics restrictions including, but not limited to, restrictions against Contractor providing gifts or anything of economic value, directly or indirectly, to Purchasers’ employees.

3.8. WASHINGTON’S ELECTRONIC BUSINESS SOLUTION (WEBS). Contractor represents and warrants that it is registered in Washington’s Electronic Business Solution (WEBS), Washington’s contract registration system and that, all of its information therein is current and accurate and that throughout the term of this Contract, Contractor shall maintain an accurate profile in WEBS.

3.9. STATEWIDE PAYEE DESK. Contractor represents and warrants that it is registered with the Statewide Payee Desk, which registration is a condition to payment.

3.10. CONTRACT PROMOTION; ADVERTISING AND ENDORSEMENT. Contractor represents and warrants that it shall use commercially reasonable efforts both to promote and market the use of this Contract with eligible Purchasers and to ensure that those entities that utilize this Contract are eligible Purchasers. Contractor understands and acknowledges that neither Department of Transportation nor Purchasers are endorsing Contractor’s goods and/or services or suggesting that such goods and/or services are the best or only solution to their needs. Accordingly, Contractor represents and warrants that it shall make no reference to Department of Transportation, any Purchaser, or the State of Washington in any promotional material without the prior written consent of Department of Transportation.

3.11. CONTRACT TRANSITION. Contractor represents and warrants that, in the event this Contract or a similar contract, is transitioned to another contractor (e.g., Contract expiration or termination), Contractor shall use commercially reasonable efforts to assist Department of Transportation for a period of sixty (60) days to effectuate a smooth transition to another contractor to minimize disruption of service and/or costs to the State of Washington.

4. USING THE CONTRACT – PURCHASES.

4.1. ORDERING REQUIREMENTS. Eligible Purchasers shall order goods and/or services from this Contract, consistent with the terms hereof and by using any ordering mechanism agreeable both to Contractor and Purchaser but, at a minimum, including the use of a purchase order. When practicable, Contractor and Purchaser also shall use telephone orders, email orders, web-based orders, and similar procurement methods (collectively “Purchaser Order”). All order documents must reference the Contract number. The terms of this Contract shall apply to any Purchase Order, and, in the event of any conflict, the terms of this Contract shall prevail. Notwithstanding any provision to the contrary, in no event shall any ‘click-agreement,’ software or web-based application terms and conditions, or other agreement modify the terms and conditions of this Contract.

4.2. DELIVERY REQUIREMENTS. Contractor must ensure that delivery of goods and/or services will be made as required by this Contract, the Purchase Order used by Purchasers, or as otherwise mutually agreed in writing between the Purchaser and Contractor. The following apply to all deliveries:

(a) Contractor shall make all deliveries to the applicable delivery location specified in the Purchase Order. Such deliveries shall occur during Purchaser’s normal work hours and within the time period mutually agreed in writing between Purchaser and Contractor.

(b) Contractor shall ship all goods and/or services purchased pursuant to this Contract, freight charges prepaid by Contractor, FOB Purchaser’s specified destination with all transportation and handling charges included. Contractor shall bear all risk of loss, damage, or destruction of the goods and/or services ordered hereunder that occurs prior to delivery, except loss or damage attributable to Purchaser’s fault or negligence.

(c) All packing lists, packages, instruction manuals, correspondence, shipping notices, shipping containers, and other written materials associated with this Contract shall be identified by the Contract number set forth on the cover of this Contract and the applicable Purchaser’s Purchase Order number. Packing lists shall be enclosed with each shipment and clearly identify all contents and any backorders.

4.3. FREIGHT CHARGES. Freight costs will be calculated on a separate invoice from the shipper. A copy of an original “Bill of Lading” or “Freight Bill” shall be provided to indicate the origin, destination and amount to move the freight. Shipping will be paid to Dynatest to cover freight charges.

4.4. RECEIPT AND INSPECTION OF GOODS AND/OR SERVICES. Goods and/or services purchased under this Contract are subject to Purchaser’s reasonable inspection, testing, and approval at Purchaser’s destination. Purchaser reserves the right to reject and refuse acceptance of goods and/or services that are not in accordance with this Contract and Purchaser’s Purchase Order. Purchaser may charge Contractor for the cost of inspecting rejected goods. If there are any apparent defects in the goods and/or services at the time of delivery, Purchaser promptly will notify Contractor. At Purchaser’s option, and without limiting any other rights, Purchaser may require Contractor to repair or replace, at Contractor’s expense, any or all of the damaged goods and/or services or, at Purchaser’s option, Purchaser may note any damage to the goods and/or services on the receiving report, decline acceptance, and deduct the cost of rejected goods and/or services from final payment. Payment for any goods under such Purchase Order shall not be deemed acceptance of the goods.

4.5. ON SITE REQUIREMENTS. While on Purchaser’s premises, Contractor, its agents, employees, or subcontractors shall comply, in all respects, with Purchaser’s physical, fire, access, safety, and other security requirements.

5. INVOICING & PAYMENT.

5.1. CONTRACTOR INVOICE. Contractor shall submit to Purchaser’s designated invoicing contact properly itemized invoices. Such invoices shall itemize the following:

(a) Contract No.TE25003

(b) Contractor name, address, telephone number, and email address for billing issues (i.e., Contractor Customer Service Representative)

(c) Contractor’s Federal Tax Identification Number

(d) Date(s) of delivery

(e) Invoice amount; and

(f) Payment terms, including any available prompt payment discounts.

Contractor’s invoices for payment shall reflect accurate Contract prices. Invoices will not be processed for payment until receipt of a complete invoice as specified herein.

5.2. PAYMENT. Payment is the sole responsibility of, and will be made by, the Purchaser. Payment is due within thirty (30) days of invoice. If Purchaser fails to make timely payment(s), Contractor may invoice Purchaser in the amount of one percent (1%) per month on the amount overdue or a minimum of $1. Payment will not be considered late if a check or warrant is mailed within the time specified.

5.3. OVERPAYMENTS. Contractor promptly shall refund to Purchaser the full amount of any erroneous payment or overpayment. Such refunds shall occur within thirty (30) days of written notice to Contractor; Provided, however, that Purchaser shall have the right to elect to have either direct payments or written credit memos issued. If Contractor fails to make timely payment(s) or issuance of such credit memos, Purchaser may impose a one percent (1%) per month on the amount overdue thirty (30) days after notice to the Contractor.

5.4. NO ADVANCE PAYMENT. No advance payments shall be made for any products or services furnished by Contractor pursuant to this Contract.

5.5. NO ADDITIONAL CHARGES. Unless otherwise specified herein, Contractor shall not include or impose any additional charges including, but not limited to, charges for shipping, handling, or payment processing (credit card fee).

5.6. TAXES/FEES. Contractor promptly shall pay all applicable taxes on its operations and activities pertaining to this Contract. Failure to do so shall constitute breach of this Contract. Unless otherwise agreed, Purchaser shall pay applicable sales tax imposed by the State of Washington on purchased goods and/or services. Contractor, however, shall not make any charge for federal excise taxes and Purchaser agrees to furnish Contractor with an exemption certificate where appropriate.

6. CONTRACT MANAGEMENT.

6.1. CONTRACT ADMINISTRATION & NOTICES. Except for legal notices, the parties hereby designate the following contract administrators as the respective single points of contact for purposes of this Contract. Department of Transportation’ contract administrator shall provide Contract oversight. Contractor’s contract administrator shall be Contractor’s principal contact for business activities under this Contract. The parties may change contractor administrators by written notice as set forth below.

Any notices required or desired shall be in writing and sent by U.S. mail, postage prepaid, or sent via email, and shall be sent to the respective addressee at the respective address or email address set forth below or to such other address or email address as the parties may specify in writing:

Attn: Sean Hoffert Washington Dept. of Department of Transportation PO Box 47357 Olympia, WA 98504-7357 Tel: (360) 705-7862 Email: TEFBids@wsdot.wa.gov.

Attn: _________________________ Tel: (___) __________ Email: _______________

Notices shall be deemed effective upon the earlier of receipt, if mailed, or, if emailed, upon transmission to the designated email address of said addressee.

6.2. CONTRACTOR CUSTOMER SERVICE REPRESENTATIVE. Contractor shall designate a customer service representative (and inform Department of Transportation of the same) who shall be responsible for addressing Purchaser issues pertaining to this Contract.

6.3. LEGAL NOTICES. Any legal notices required or desired shall be in writing and delivered by U.S. certified mail, return receipt requested, postage prepaid, or sent via email, and shall be sent to the respective addressee at the respective address or email address set forth below or to such other address or email address as the parties may specify in writing:

Attn: Legal Services Manager Washington Dept. of Department of Transportation PO Box Olympia, WA 98504-7357 Email: TEFBids@wsdot.wa.gov.

Attn: _________________________ Email: _______________

Notices shall be deemed effective upon the earlier of receipt when delivered, or, if mailed, upon return receipt, or, if emailed, upon transmission to the designated email address of said addressee.

7. RECORDS RETENTION & AUDITS.

7.1. RECORDS RETENTION. Contractor shall maintain books, records, documents, and other evidence pertaining to this Contract and orders placed by Purchasers under it to the extent and in such detail as shall adequately reflect performance and administration of payments and fees. Contractor shall retain such records for a period of six (6) years following expiration or termination of this Contract or final payment for any order placed by a Purchaser against this Contract, whichever is later; Provided, however, that if any litigation, claim, or audit is commenced prior to the expiration of this period, such period shall extend until all such litigation, claims, or audits have been resolved.

7.2. AUDIT. Department of Transportation reserves the right to audit, or have a designated third-party audit, applicable records to ensure that Contractor has properly invoiced Purchasers. Accordingly, Contractor shall permit Department of Transportation, any Purchaser, and any other duly authorized agent of a governmental agency, to audit, inspect, examine, copy and/or transcribe Contractor’s books, documents, papers and records directly pertinent to this Contract or orders placed by a Purchaser under it for the purpose of making audits, examinations, excerpts, and transcriptions. This right shall survive for a period of six (6) years following expiration or termination of this Contract or final payment for any order placed by a Purchaser against this Contract, whichever is later; Provided, however, that if any litigation, claim, or audit is commenced prior to the expiration of this period, such period shall extend until all such litigation, claims, or audits have been resolved.

8. INSURANCE.

8.1. REQUIRED INSURANCE. During the Term of this Contract, Contractor, at its expense, shall maintain in full force and effect the insurance coverages set forth in Exhibit C – Insurance Requirements. All costs for insurance, including any payments of deductible amounts, shall be considered incidental to and included in the prices for goods/services and no additional payment shall be made.

8.2. WORKERS COMPENSATION. Contractor shall comply with applicable workers compensation statutes and regulations (e.g., RCW Title 51, Industrial Insurance). If Contractor fails to provide industrial insurance coverage or fails to pay premiums or penalties on behalf of its employees as may be required by law, Department of Transportation may terminate this Contract. This provision does not waive any of the Washington State Department of Labor and Industries (L&I) rights to collect from Contractor. In addition, Contractor waives its immunity under RCW Title 51 to the extent it is required to indemnify, defend, and hold harmless the State of Washington and its agencies, officials, agents, or employees.

9. CLAIMS.

9.1. ASSUMPTION OF RISKS; CLAIMS BETWEEN THE PARTIES. Contractor assumes sole responsibility and all risks of personal injury or property damage to itself and its employees and agents in connection with its operations under this Contract. Department of Transportation has made no representations regarding any factor affecting Contractor’s risks. Contractor shall pay for all damage to any Purchaser’s property resulting directly or indirectly from its acts or omissions under this Contract, even if not attributable to negligence by Contractor or its agents.

9.2. THIRD-PARTY CLAIMS; INDEMNITY. To the fullest extent permitted by law, Contractor shall defend, indemnify, and hold harmless Department of Transportation and any Purchaser and their employees and agents from and against all claims, demands, judgments, assessments, damages, penalties, fines, costs, liabilities or losses including, without limitation, sums paid in settlement of claims, attorneys’ fees, consultant fees, and expert fees (collectively “claims”) arising from any act or omission of Contractor or its successors, agents, and subcontractors under this Contract, except claims caused solely by Department of Transportation or any Purchasers’ negligence. Contractor shall take all steps needed to keep Purchaser’s property free of liens arising from Contractor’s activities, and promptly obtain or bond the release of any such liens that may be filed.

10. DISPUTE RESOLUTION. The parties shall cooperate to resolve any dispute pertaining to this Contract efficiently, as timely as practicable, and at the lowest possible level with authority to resolve such dispute. If, however, a dispute persists and cannot be resolved, it may be escalated within each organization. In such situation, upon notice by either party, each party, within five (5) business days shall reduce its description of the dispute to writing and deliver it to the other party. The receiving party then shall have three (3) business days to review and respond in writing. In the event that the parties cannot then agree on a resolution of the dispute, the parties shall schedule a conference between the respective senior managers of each organization to attempt to resolve the dispute. In the event the parties cannot agree, either party may resort to court to resolve the dispute.

11. SUSPENSION & TERMINATION; REMEDIES.

11.1. SUSPENSION & TERMINATION FOR DEFAULT. Department of Transportation may suspend Contractor’s operations under this Contract immediately by written cure notice of any default. Suspension shall continue until the default is remedied to Department of Transportation’ reasonable satisfaction; Provided, however, that, if after thirty (30) days from such a suspension notice, Contractor remains in default, Department of Transportation may terminate Contractor’s rights under this Contract. All of Contractor’s obligations to Department of Transportation and Purchasers survive termination of Contractor’s rights under this Contract, until such obligations have been fulfilled.

11.2. DEFAULT. Each of the following events shall constitute default of this Contract by Contractor:

(a) Contractor fails to perform or comply with any of the terms or conditions of this Contract.

(b) Contractor breaches any representation or warranty provided herein; or

(c) Contractor enters into proceedings relating to bankruptcy, whether voluntary or involuntary.

11.3. REMEDIES FOR DEFAULT.

(a) Department of Transportation’ rights to suspend and terminate Contractor’s rights under this Contract are in addition to all other available remedies.

(b) In the event of termination for default, Department of Transportation may exercise any remedy provided by law including, without limitation, the right to procure for all Purchasers replacement goods and/or services. In such event, Contractor shall be liable to Department of Transportation for damages as authorized by law including, but not limited to, any price difference between the Contract price and the replacement or cover price as well as any administrative and/or transaction costs directly related to such replacement procurement – e.g., the cost of the competitive procurement.

11.4. LIMITATION ON DAMAGES. Notwithstanding any provision to the contrary, the parties agree that in no event shall any party or Purchaser be liable to the other for exemplary or punitive damages.

11.5. GOVERNMENTAL TERMINATION.

(a) Termination for Withdrawal of Authority. Department of Transportation may suspend or terminate this Contract if, during the term hereof, Department of Transportation ’ procurement authority is withdrawn, reduced, or limited such that Department of Transportation , in its judgment, would lack authority to enter into this Contract; Provided, however, that such suspension or termination for withdrawal of authority shall only be effective upon twenty (20) days prior written notice; and Provided further, that such suspension or termination for withdrawal of authority shall not relieve any Purchaser from payment for goods and/or services already ordered as of the effective date of such notice. Except as stated in this provision, in the event of such suspension or termination for withdrawal of authority, neither Department of Transportation nor any Purchaser shall have any obligation or liability to Contractor.

(b) Termination for Public Convenience. Department of Transportation , for public convenience, may terminate this Contract; Provided, however, that such termination for public convenience must, in Department of Transportation ’ judgment, be in the best interest of the State of Washington; and Provided further, that such termination for public convenience shall only be effective upon sixty (60) days prior written notice; and Provided further, that such termination for public convenience shall not relieve any Purchaser from payment for goods and/or services already ordered as of the effective date of such notice. Except as stated in this provision, in the event of such termination for public convenience, neither Department of Transportation nor any Purchaser shall have any obligation or liability to Contractor.

11.6. TERMINATION PROCEDURE. Regardless of basis, in the event of suspension or termination (in full or in part), the parties shall cooperate to ensure an orderly and efficient suspension or termination. Accordingly, Contractor shall deliver to Purchasers all goods and/or services that are complete (or with approval from Department of Transportation, substantially complete) and Purchasers shall inspect, accept, and pay for the same in accordance with this Contract and the applicable Purchase Order. Unless directed by Department of Transportation to the contrary, Contractor shall not process any orders after notice of suspension or termination inconsistent therewith.

12. GENERAL PROVISIONS.

12.1. TIME IS OF THE ESSENCE. Time is of the essence for each provision of this Contract.

12.2. COMPLIANCE WITH LAW. Contractor shall comply with all applicable law.

12.3. INTEGRATED AGREEMENT. This Contract constitutes the entire agreement and understanding of the parties with respect to the subject matter and supersedes all prior negotiations, representations, and understandings between them. There are no representations or understandings of any kind not set forth herein.

12.4. AMENDMENT OR MODIFICATION. Except as set forth herein, this Contract may not be amended or modified except in writing and signed by a duly authorized representative of each party.

12.5. AUTHORITY. Each party to this Contract, and each individual signing on behalf of each party, hereby represents and warrants to the other that it has full power and authority to enter into this Contract and that its execution, delivery, and performance of this Contract has been fully authorized and approved, and that no further approvals or consents are required to bind such party.

12.6. NO AGENCY. The parties agree that no agency, partnership, or joint venture of any kind shall be or is intended to be created by or under this Contract. Neither party is an agent of the other party nor authorized to obligate it.

12.7. ASSIGNMENT. Contractor may not assign its rights under this Contract without Department of Transportation ’ prior written consent and Department of Transportation may consider any attempted assignment without such consent to be void; Provided, however, that, if Contractor provides written notice to Department of Transportation within thirty (30) days, Contractor may assign its rights under this Contract in full to any parent, subsidiary, or affiliate of Contractor that controls or is controlled by or under common control with Contractor, is merged or consolidated with Contractor, or purchases a majority or controlling interest in the ownership or assets of Contractor. Unless otherwise agreed, Contractor guarantees prompt performance of all obligations under this Contract notwithstanding any prior assignment of its rights.

12.8. BINDING EFFECT; SUCCESSORS & ASSIGNS. This Contract shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.

12.9. PUBLIC INFORMATION. This Contract and all related documents are subject to public disclosure as required by Washington’s Public Records Act, RCW chapter 42.56.

12.10. ASSIGNMENT OF ANTITRUST RIGHTS REGARDING PURCHASED GOODS/SERVICES. Contractor irrevocably assigns to Department of Transportation , on behalf of the State of Washington, 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 state or federal antitrust laws in connection with any goods and/or services provided in Washington for the purpose of carrying out the Contractor’s obligations under this Contract, including, at Department of Transportation ' option, the right to control any such litigation on such claim for relief or cause of action.

12.11. FEDERAL FUNDS. To the extent that any Purchaser uses federal funds to purchase goods and/or services pursuant to this Contract, such Purchaser shall specify, with its order, any applicable requirement or certification that must be satisfied by Contractor at the time the order is placed or upon delivery.

12.12. SEVERABILITY. If any provision of this Contract is held to be invalid or unenforceable, such provision shall not affect or invalidate the remainder of this Contract, and to this end the provisions of this Contract are declared to be severable. If such invalidity becomes known or apparent to the parties, the parties agree to negotiate promptly in good faith to amend such provision as nearly as possible to be consistent with the intent of this Contract.

12.13. WAIVER. Failure of either party to insist upon the strict performance of any of the terms and conditions hereof, or failure to exercise any rights or remedies provided herein or by law, or to notify the other party in the event of breach, shall not release the other party of any of its obligations under this Contract, nor shall any purported oral modification or rescission of this Contract by either party operate as a waiver of any of the terms hereof. No waiver by either party of any breach, default, or violation of any term, warranty, representation, contract, covenant, right, condition, or provision hereof shall constitute waiver of any subsequent breach, default, or violation of the same or other term, warranty, representation, contract, covenant, right, condition, or provision.

12.14. SURVIVAL. All representations, warranties, covenants, agreements, and indemnities set forth in or otherwise made pursuant to this Contract shall survive and remain in effect following the expiration or termination of this Contract, Provided, however, that nothing herein is intended to extend the survival beyond any applicable statute of limitations periods.

12.15. GOVERNING LAW. The validity, construction, performance, and enforcement of this Contract shall be governed by and construed in accordance with the laws of the State of Washington, without regard to its choice of law rules.

12.16. JURISDICTION & VENUE. If any action is brought to enforce any provision of this Contract, the parties agree to exclusive jurisdiction in Thurston County Superior Court for the State of Washington and agree that in any such action venue shall lie exclusively at Olympia, Washington.

12.17. ATTORNEYS’ FEES. Should any legal action or proceeding be commenced by either party in order to enforce this Contract or any provision hereof, or in connection with any alleged dispute, breach, default, or misrepresentation in connection with any provision herein contained, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs incurred in connection with such action or proceeding, including costs of pursuing or defending any legal action, including, without limitation, any appeal, discovery, or negotiation and preparation of settlement arrangements, in addition to such other relief as may be granted.

12.18. FAIR CONSTRUCTION & INTERPRETATION. The provisions of this Contract shall be construed as a whole according to their common meaning and not strictly for or against any party and consistent with the provisions contained herein in order to achieve the objectives and purposes of this Contract. Each party hereto and its counsel has reviewed and revised this Contract and agrees that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be construed in the interpretation of this Contract. Each term and provision of this Contract to be performed by either party shall be construed to be both a covenant and a condition.

12.19. FURTHER ASSURANCES. In addition to the actions specifically mentioned in this Contract, the parties shall each do whatever may reasonably be necessary to accomplish the transactions contemplated in this Contract including, without limitation, executing any additional documents reasonably necessary to effectuate the provisions and purposes of this Contract.

12.20. EXHIBITS. All exhibits referred to herein are deemed to be incorporated in this Contract in their entirety.

12.21. CAPTIONS & HEADINGS. The captions and headings in this Contract are for convenience only and are not intended to, and shall not be construed to, limit, enlarge, or affect the scope or intent of this Contract nor the meaning of any provisions hereof.

12.22. ELECTRONIC SIGNATURES. A signed copy of this Contract or any other ancillary agreement transmitted by facsimile, email, or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original executed copy of this Contract or such other ancillary agreement for all purposes.

12.23. COUNTERPARTS. This Contract may be executed in any number of counterparts, each of which shall be deemed an original and all of which counterparts together shall constitute the same instrument which may be sufficiently evidenced by one counterpart. Execution of this Contract at different times and places by the parties shall not affect the validity thereof so long as all the parties hereto execute a counterpart of this Contract.

EXECUTED as of the date and year first above written.

STATE OF WASHINGTON

Department of Department of Transportation a __________________

EXHIBIT A

SPECIFICATIONS & PRICES

[Insert at time of Contract award.]

Exhibit B

SPECIAL TERMS & CONDITIONS

General:

Equipment offered for this contract must be new (unused) and a current production model that, except as required by this Contract, require no manufacturer or dealership modifications. Units may be sold, prepared, and delivered to WSDOT, or its designated agent, by a dealer who is factory franchised for the specific makes and models of equipment offered.

All accessories and features listed herein shall be those supplied by the Original Equipment Manufacturer (OEM) or the Contractor. Any accessories, features, or operational performance required by FMVSS, Washington State Motor Vehicle Laws, OSHA or WISHA laws or mandates, that apply to the equipment being bid, shall be provided by the OEM or Contractor. All Button Trucks associated equipment required by this Contract shall be of the same design and quality unless in written agreement by both parties.

Failure to comply with the any specified requirement of the contract constitutes a breach of contract. WSDOT may cancel all or any part of this contract, without incurring any costs whatsoever, including delivery, shipping, or fees.

WSDOT may exercise the option to visit the location of the vehicle and or equipment being built and or assembled. This visit is to inspect the build quality and specifications as set forth in “Exhibit A Specification and Price”. WSDOT staff will ensure that the build is consistent with “Exhibit A Specification and Price”. Should specifications not be meet in this pre inspection, the vehicle and or equipment shall be remedied before final shipment to WSDOT. Such findings shall be verbal at the time of the inspection and shall be confirmed in writing by, the Contract Manager (WSDOT) citing what items need to be fixed prior to final shipment.

All visitors to Contractor’s manufacturing facilities shall be required to enter Contractor’s main visitor’s lobby. Upon entering, all visitors may be issued a visitor’s badge and will be required to sign a logbook at the receptionist desk. All visitors must follow Contractor’s designated safety policies and procedures while in the facility. All visitors must wear safety glasses when entering the production floor. Only safety glasses with side shields are permitted. Contractor will provide visitors with safety glasses if needed. Opened toed shoes are not permitted on the production floor. Shoes must cover both the front and back of the foot. High heels are also not permitted on the production floor. Visitors must stay with their designated tour guide throughout the tour. The tour guide will be responsible for ensuring the safety of all visitors while in our facility. Cell phones use is not permitted while touring the facility. This includes texting or receiving incoming calls. All forms of photography or video involving Contractor’s employees, equipment, or processes is prohibited.

Specification Clarification and Changes:

Clarification for any item in these specifications may be obtained from the WSDOT Transportation Equipment Fund (TEF) Contract Office.

Contracts for the purchase of WSDOT owned equipment are official documents that carry legal implications. After award, there shall be no deviations from any requirements stated in the contract during the manufacturing or assembly process of the equipment identified herein, without a contract change amendment by the WSDOT TEF Contract Office.

Delivery; and Acceptance:

WSDOT will require the successful vendor to provide the “Contractor Confirmation of Specification Compliance” at time of delivery. The “Contractor Confirmation of Specification Compliance” is required to ensure the vehicle meets the specifications and workmanship is satisfactory to WSDOT Technical Specifications. Final acceptance will depend on the Button Truck conforming to the agreed build scope in the contract. Contractors is responsible for ensuring that all equipment purchased, pursuant to this contract, complies with all of the requirements and specifications listed in the contract. If specifications and workmanship is not satisfactory, WSDOT will not accept final delivery and will delay payment. Contractor shall give one (1) weeks’ written notice if WSDOT staff will inspect the equipment at the site of build. A WSDOT representative will inspect the vehicle for final acceptance as well.

Contractor shall provide the following documents for review at time of delivery for each item:

1. The manufacturer’s line production sheet stating the equipment serial numbers and listing all of the equipment’s components.

2. Completed Invoice.

3. Contractor Confirmation of Specification Compliance.

4. The Manufacturer’s Statement of Origin (MSO).

5. Axle weight slips (for all units with axles).

6. A completed Washington State title application showing both the legal and registered owner as:

Washington State Department of Transportation 7345 Linderson Way S.W.

Tumwater WA 98501.

The mailing address is:

P.O. Box 47357, Olympia WA 98504.

Out of state Contractor(s) may contact WSDOT TEF Contract Office to obtain a Washington State title application.

Contractor must notify WSDOT via email (TEFBids@wsdot.wa.gov) forty-eight (48) hours prior to equipment delivery. This is to ensure that a WSDOT employee is available to sign and date the bill of lading (or other type delivery document) and receive the above-mentioned documents, to indicate WSDOT has accepted delivery of the equipment.

When the unit is ready for final delivery, it may be delivered to WSDOT facilities (as specified on the purchase order) between the hours of 7:00 am and 2:00 pm, Monday through Thursday. Deliveries shall not be made during other hours, on weekends or on legally recognized state and federal holidays.

WSDOT will not accept any responsibility for equipment that has been delivered to or left at a WSDOT facility, unless a WSDOT employee has signed and dated the bill of ladening or other delivery documents indicating WSDOT has accepted delivery of the equipment.

Contractor shall be solely liable for any equipment damages that occurred prior to WSDOT accepting delivery of the equipment.

Contractor Shall Meet the Delivery Terms of this Contract:

Should the Contractor become aware, in advance of an equipment delivery date, that the Contractor will be unable to meet the contract delivery date; the Contractor may make a written request to the WSDOT TEF Contract Office for a contract change order modifying the equipment delivery date. Should the Contractor fail to meet the contract equipment delivery date, liquidated damages will be assessed. The amount of liquidated damages will be calculated by using WSDOT’s established Equipment Rental Rate Schedule that is in effect as of the date of the contract or equipment order. Liquidated damages will be assessed at the established per day equipment rental rate for each late delivery day, not to exceed ten percent of the equipment’s purchase price. Damages will not be assessed unless an equipment rental actually occurs, and documentation is provided to the contractor. This assessment represents a reasonable forecast of WSDOT’s actual damages for having to rent replacement equipment. WSDOT shall deduct the liquidated damages for late delivery from Contractor’s invoice.

Warranty Services and Performance:

Equipment Contractors must provide technical support and equipment modifications for a period of 90 calendar days after the date the equipment is reported in service per manufacturer and/or factory warranty requirements. This is to ensure that the purchased equipment can perform the specified operational functions.

Contractors warranty details can be found on Exhibit D.

Warranty coverage will not commence until the date the completed equipment is placed into service as reported by WSDOT pursuant to the warranty requirements, or 30 days after final payment for the equipment, whichever occurs first.

Contractor represents and warranty that it shall be capable of and will provide repair parts and supply support at usual and customary prices and fees to WSDOT or Purchaser’s for a period of ten (10) years after the delivery date of the equipment.

During the warranty period Contractor must begin physical repairs on equipment failures within five business days after WSDOT has notified the Contractor of an equipment failure. Should the Contractor fail to begin equipment repairs within five days or receiving or accepting the vehicle, WSDOT may elect (based on operational requirements) to make the warranty repairs. Should WSDOT elect to make such warranty repairs, the Contractor agrees to fully reimburse WSDOT for all parts, materials, labor, shipping, and travel costs actually incurred by WSDOT for such warranty repairs. WSDOT shall provide Contractor with a detailed invoice, and Contractor agrees to remit payment to the WSDOT within thirty days (30) after receipt of the invoice. Failure to provide and complete warranty service/repair within two weeks (14 calendar days) of vehicle/equipment entering contractor’s facility may be sufficient grounds for WSDOT to deny the Contractor from bidding in future contracts due to poor performance.

During warranty period the Contractor may, upon notification of a warranty failure, authorize WSDOT equipment repair technicians to make warranty repairs when it advantages WSDOT and the Contractor. The Contractor shall reimburse WSDOT for all costs associated with the warranty repair at Contractor’s usual warranty repair fees and costs.

Training:

Contractor shall provide on-site instructor(s) to conduct eight (8) hours of operator training per unit delivered and eight hours of repair technician training per unit delivered. During the eight (8) hour training period, the length and number of training session(s) required may vary based on the equipment’s complexity and personnel experience levels. Training session(s) may be less than eight (8) hours should the WSDOT on-site supervisor or Equipment Training Manager determines that all personnel have completed training and the Contractor’s training obligation has been fulfilled.