DOUGLAS COUNTY'S GENERAL PROVISIONS FOR PROCUREM ENT OF EQUIPM ENT AND GOO DS
1 DEFINITIONS AND INTERPRETATION:
1.1 Unless particular provisions of the Contract Docum ents state otherwise, the following definitions apply to all Contract Docum ents:
1.1.1 "Addendum " m eans a docum ent issued by the County before Bids are due that changes the Solicitation Docum ents.
1.1.2 "Agreem ent" m eans the Contract Docum ent signed by the Parties that incorporates all other Contract Docum ents by reference.
1.1.3 "Am endm ent" m eans a written agreem ent between the Parties that changes provisions of the Contract Docum ents.
1.1.4 "Applicable Laws" m eans all statutes, rules, regulations, orders, ordinances, and other legal requirem ents of Governm ental Agencies that affect any aspect of the sale, transportation, storage, or use of the Goods or perform ance of Services.
1.1.5 "Bid" m eans the written offer to sell the Goods and to perform Services in connection with the sale, including a "Bid Schedule" and other docum ents subm itted by Seller in response to Solicitation Docum ents. If a Request for Proposals was issued,"Bid" is synonym ous with "Proposal."
1.1.6 "Bidder" m eans a person or an entity who subm its a Bid. 1.1.7 "Board" m eans the Board of County Com m issioners. 1.1.8 "Buyer" or "County" m eans Douglas County.
1.1.9 "Contract Adm inistrator" m eans the person authorized by the Board to adm inister the Contract for the County.
1.1.10 "Contract Docum ents" m ean the docum ents that govern the contractual rights and obligations of the Parties concerning the Goods and Services, including these General Provisions, Special Provisions, Specifications, Drawings, Addenda pertaining to other Contract Docum ents, the Bid accepted by the County, the Agreem ent, Purchase Order(s), and Am endm ents.
1.1.11 "Contract Price" m eans the total am ount payable to Seller for the Goods and Services as determ ined by the Contract Docum ents.
1.1.12 "Contract Tim e" m eans the tim e during which Seller m ust deliver the Goods and perform the Services which m ay be stated as a certain num ber of days or a certain date by which the Goods will be delivered and Services will be com pleted or as a term of m onths or years during which Goods and Services will be provided on a periodic basis.
1.1.13 "County" m eans Douglas County.
1.1.14 "County Accountant" m eans the person appointed by the Board pursuant to ORS Chapter 210 and Douglas County Code Chapter 3.04.
1.1.15 "County Counsel" m eans an attorney or a paralegal in the Office of the County Counsel established by Douglas County Code Chapter 2.08.
1.1.16 "Docum ent" and "Record" m ean any book, paper, photograph, drawing, m odel, video or sound recording, electronic record, or other m aterial which contains verbal, num erical, or graphic inform ation.
1.1.17 "Drawings" m eans Contract Docum ents which illustrate the design, dim ensions, and details of Goods in pictorial or graphic form .
1.1.18 "Environm ental Laws" m eans Applicable Laws pertaining to hazardous substances, environm ental health hazards, environm ental pollution, or preservation of natural resources.
1.1.19 "Equipm ent" m eans any m achinery, equipm ent, hardware, apparatus, and other m echanism s.
1.1.20 "Goods" m eans Goods, as defined in ORS 72.1050, that Seller will sell to the County, including Equipm ent.
1.1.21 "Governm ental Agency" m eans any federal, state, or local governm ental body or agency with jurisdiction over the Goods or Services.
1.1.22 "Hazardous Substance" m eans any substance regulated by an Environm ental Law which m ay pose a hazard to hum an health or the environm ent, including "Hazardous Substances" as defined in ORS 465.200 and "Hazardous Chem icals" regulated by ORS 654.750 et seq. or OAR Chapter 437, Division 4.
1.1.23 "Lum p Sum " and the abbreviation "L.S." m ean an undivided fixed price for a Pay Item that is not m easured by units.
1.1.24 "Party" or "Parties" m eans the County or Seller or both.
1.1.25 "Pay Item " m eans a part of the Goods and Services for which a specific Unit Price or Lum p Sum is listed in the Bid Schedule.
1.1.26 "Prem ises" m eans real property, including land and structures attached to land. 1.1.27 "Product Data" m eans illustrations, schedules, perform ance charts, instructions, brochures, diagram s, and other docum ents provided by the Seller that contain technical inform ation concerning Goods and Services.
1.1.28 "Proprietary Product" m eans Goods which are described in the Specifications by brand nam e or which are held under patent or tradem ark by a particular person or entity.
1.1.29 "Purchase Order" or "Order" m eans a Contract Docum ent issued by the County to Seller which requires Seller to provide certain Goods at the Contract Price stated in the Bid.
1.1.30 "Seller" m eans the successful Bidder who has entered into an Agreem ent with the County for providing Goods and perform ing Services.
1.1.31 "Services" m eans all personal services and labor that the Seller will provide in connection with the sale of Goods.
1.1.32 "Sole Source Product" m eans Goods that m ust be obtained from a particular source, vendor, or m anufacturer for sale to the County.
1.1.33 "Solicitation Docum ents" m eans all docum ents issued by the County to solicit Bids or Proposals, including the Instructions to Bidders or the Request for Proposals, proposed Contract Docum ents, and Addenda.
1.1.34 "Special Provisions" m eans a Contract Docum ent that supplem ents, m odifies, and supersedes these General Provisions.
1.1.35 "Specifications" m eans a Contract Docum ent that contains technical descriptions of the Goods and Services.
1.1.36 "Specified Product" m eans a Sole Source Product, Proprietary Product, or generic Goods with specific features, com ponents, constituents, or qualities that are described in the Specifications at the tim e the Agreem ent is signed.
1.1.37 "Subcontractor" m eans a person or entity who enters into a written "Subcontract" with Seller or another Subcontractor at another tier for perform ing Services.
1.1.38 "Substitute" m eans Goods that the Seller proposes to provide instead of a Specified Product.
1.1.39 "Third-Party Claim " m eans any dem and, claim , action, or other adversarial
proceeding that is asserted, filed, prosecuted, or appealed against a Party by a person or entity other than a Party and any resulting expenses and liabilities, including dam ages, penalties, judgm ents, attorney fees, m ediation costs, arbitration costs and litigation costs.
1.1.40 "Unit Price" m eans the price for a Pay Item that is m easured by units which will vary in quantity. Goods and Services covered by a Unit Price are called "Unit Price Item s."
1.2 Generally, unless particular provisions of the Contract Docum ents state otherwise, or unless the context indicates otherwise, the following provisions will be applied in interpretation of the Contract
Docum ents:
1.2.1 W ords defined in the Contract Docum ents are capitalized.
1.2.2 References to specific sections or subsections will be capitalized and will m ean the sections and the subsections of the Contract Docum ent in which the references are m ade.
1.2.3 W ords in the present tense include the future and vice versa. W ords and phrases used as nouns include the singular and plural form s.
1.2.4 A word or phrase that is not defined in the Contract Docum ents will have the definition stated in Applicable Laws, and if there is no definition in the Contract Docum ents or Applicable Laws, the m eaning accepted in Seller's trade.
1.2.5 "Shall," "will," and "m ust" signify m andatory obligations. "May" signifies a discretionary or perm issive act.
1.2.6 The phrase "without lim itation" will be deem ed to follow the words "include," "includes," and "including" when referring to a list, class, or group of persons, entities, things, conditions, acts, om issions, events, obligations, rights, rem edies, or liabilities.
1.2.7 Modifying words such as "all" and "any" and articles such as "the" and "an" m ay be om itted, but including or om itting an article or m odifier should not affect the interpretation of a provision of the Contract Docum ents.
2 CONTRACT DO CUM ENTS:
2.1 The Contract Docum ents supersede Solicitations Docum ents that are not expressly
incorporated in the Contract Docum ents by the Agreem ent. The Contract Docum ents constitute the entire agreem ent between the Parties concerning the Goods and Services. References to "this Contract" or "the Contract" in any Contract Docum ent will include all Contract Docum ents.
2.2 Special Provisions that are incorporated in the Contract Docum ents by the Agreem ent supplem ent, m odify, and supersede the General Provisions.
2.3 An exhibit or other docum ent incorporated by reference in a Contract Docum ent will be an integral part of that Contract Docum ent.
2.4 If the Specifications om it details of the technical characteristics of the Goods or Services, details consistent with the intended use of the Goods, as described in the Contract Docum ents, will be inferred.
2.5 The Contract Docum ents are intended to be com plem entary, but inconsistencies m ay occur. Unless a particular provision of the Contract Docum ents states otherwise, inconsistencies within the Contract Docum ents will be resolved by the following order of priority (the docum ent nam ed in Subsection 2.5.1 takes priority over all others and so on in descending order):
2.5.1 Am endm ents. 2.5.2 Agreem ent.
2.5.3 Addenda pertaining to the Contract Docum ents. 2.5.4 Special Provisions. 2.5.5 General Provisions. 2.5.6 Specifications. 2.5.7 Drawings. 2.5.8 Purchase Orders. 2.5.9 Seller's Bid.
2.6 Addenda and Am endm ents of a later date will take priority over those of an earlier date.
2.7 If Specifications are inconsistent, the docum ent or provision that will result in the better quality of Goods and Services will take priority.
2.8 Provisions of the Contract Docum ents regarding Purchase Orders or Orders apply only to requirem ents contracts, output contracts, and other contracts which allow the County to procure Goods and Services in units or lots by issuing a discrete Purchase Order during the Contract Tim e for each unit or lot.
2.9 Seller shall notify the Contract Adm inistrator of am biguities or inconsistencies in the Contract Docum ents. If the Contract Adm inistrator determ ines that there is an am biguity or inconsistency, the
Contract Adm inistrator will issue a written interpretation that is consistent with the provisions of this section to clarify the m atter which will be an integral part of the Contract Docum ent that it interprets.
3 ADM INISTRATION OF CONTRACT:
3.1 The Contract Adm inistrator is nam ed in the Agreem ent. The Board m ay designate a new Contract Adm inistrator at any tim e. Subject to lim itations stated in the Contract Docum ents, the Contract Adm inistrator m ay delegate authority to other representatives of the County, and references to the Contract Adm inistrator in the Contract Docum ents will include such representatives. The Board or the Contract Adm inistrator will give Seller notice of any delegation of or change in authority that is m ade pursuant to this subsection. Seller will not rely on any directive, decision, or action that is m ade by anyone who is not authorized to act on behalf of the County in accordance with the Contract Docum ents.
3.2 Unless particular provisions of the Contract Docum ents state otherwise all actions and decisions of the County under the Contract Docum ents will be taken or m ade by the Contract Adm inistrator. The Contract Adm inistrator cannot take any actions or m ake any decisions that change the Contract Price.
3.3 Subject to lim itations in the County’s Local Contract Review Board Rules and other Applicable Laws:
3.3.1 The Board m ay execute an Am endm ent for any am ount.
3.3.2 The County Accountant m ay execute an Am endm ent if it will not increase the Contract Price by m ore than $25,000.
3.3.3 The County Accountant m ay approve assignm ent of Seller’s interest in the Contract Docum ents.
3.4 Seller shall designate at least one representative of Seller who is authorized take actions and m ake decisions necessary for adm inistration of the Contract. Seller shall give the Contract Adm inistrator notice of the nam es of Seller's representatives and the scope of their authority.
4 AM ENDM ENTS: Unless particular provisions of the Contract Docum ents state otherwise, the
Contract Docum ents m ay be changed only by written Am endm ents that are signed by authorized representatives of the Parties and not by oral agreem ents.
5 SEVERANCE: If a provision of the Contract Docum ents is held to be invalid, it will not affect the
validity of any other provision. The Contract Docum ents will be construed as if the invalid provision had never been included.
6 W AIVER: Com pliance with requirem ents of the Contract Docum ents m ay be waived only by a written waiver signed by the Party waiving its rights. W aiver of one requirem ent will not be deem ed to waive any other requirem ent.
7 APPROVALS: If any act, thing, or docum ent is subject to the approval of the Contract Adm inistrator
or the County Accountant under the Contract Docum ents, the approval m ust be given in the sam e m anner as notices under Section 8 unless a particular Contract Docum ent states otherwise. Approval will not be
withheld arbitrarily.
8 NOTICES:
8.1 Notices required by the Contract Docum ents m ust be written and m ust be given by personal delivery, m ail, or facsim ile transm ission, unless a particular m ethod of notice is required by Applicable Law.
8.2 The Parties’ addresses and facsim ile num bers for notices are stated in the Agreem ent. Each Party will notify the other of any change of address or facsim ile num ber.
8.3 Notices m ailed within Oregon will be deem ed given on the second day following the date postm arked. Notices m ailed outside Oregon will be deem ed given upon the fifth day following the date postm arked.
9 SUCCESSORS:
9.1 The successors, assigns and legal representatives of Seller and the County will be subject to all provisions of the Contact Docum ents.
9.2 Seller will not assign any of Seller's rights or responsibilities under the Contract Docum ents without the prior approval of the County Accountant.
10 SELLER'S RECORDS: Seller shall allow representatives of the County to exam ine and copy records
that are pertinent to the Contract at reasonable tim es while the Contract is in effect, within six years after term ination of the Contract, and while any dispute between the Parties concerning the Contract is unresolved.
11 M ERCHANT STATUS: Seller is and the County is not a "m erchant" of the Goods within the m eaning
given that term by ORS Chapter 72.
12 GOODS:
12.1 Goods provided by Seller m ust conform to the Specifications and Drawings, subject to Am endm ents for substitutions m ade pursuant to Section 18.
12.2 Equipm ent m ust be new, current m odels of standard production. Equipm ent m ust be cleaned, conditioned, installed, and connected in accordance with instructions of the m anufacturer.
13 W ARRANTIES:
13.1 Standard warranties of m anufacturers of Goods provided by the Seller will apply to the extent that they enhance warranty protection for the County.
13.2 Goods will be subject to the warranties provided by ORS 72.3120, 72.3130, and 72.3140. If the Contract Docum ents state the County’s intended use of the Goods, the County will rely on Seller’s skill or judgem ent to furnish suitable Goods and ORS 72.3150 will apply to the Goods.
13.3 Any disclaim ers of warranties in docum ents provided by Seller will not dim inish Seller's obligations under warranties stated in this section or other provisions of the Contract Docum ents.
14 SERVICES:
14.1 Seller is responsible for all Services required by the Contract Docum ents. Seller shall: 14.1.1 Furnish and pay for all equipm ent, tools, labor, personal services, docum ents, and incidentals that are required by the Contract Docum ents, or that should be inferred from the Contract Docum ents as necessary to perform the Services;
accepted trade standards and practices; and
14.1.3 Determ ine and control the m eans or m ethods used for the Services unless the Contract Docum ents require specific m eans or m ethods.
14.2 Seller shall provide and properly supervise com petent, qualified workers. W orkers m ust have any licenses and certificates required by law for perform ing Services to which they are assigned.
15 PREM ISES:
15.1 Provisions referring to the Prem ises apply only to Services that are perform ed at Prem ises owned or occupied by the County.
15.2 The County will allow Seller to have access to and use of the Prem ises to the extent necessary for perform ance of the Services. Seller shall confine the Services to the areas specified in the Contract Docum ents. If practicable, Seller shall not interfere with regular use of the Prem ises. Upon com pletion of Services, Seller shall leave the Prem ises clean and ready for use by the County.
16 SAFETY AND PROTECTION OF PROPERTY:
16.1 Seller, at Seller’s expense, shall im plem ent reasonable precautions to prevent injury to persons and dam age to property that m ay result from the Services, including safety m easures and facilities required by Applicable Laws.
16.2 Seller will be responsible for all dam age to the County’s real and personal property resulting from the Services, and Seller shall com pensate the County im m ediately following receipt of notice from the Contract Adm inistrator describing the dam age and stating the costs of repairing or restoring such dam age.
17 SUBCONTRACTORS:
17.1 Services that are perform ed by a person who is not an em ployee of Seller m ust be perform ed with a Subcontractor who qualifies as an independent contractor under ORS 670.600 or an em ployee of a Subcontractor. Seller shall not enter into Subcontracts for Services or allow a Subcontractor to assign its interest in a subcontract or to enter into a subcontract at a lower tier without the approval of the County Accountant. Seller will be responsible for Services perform ed by a Subcontractor.
17.2 Subcontractors will not perform Services at the Prem ises until they provide the sam e proof of liability insurance coverage and proof of workers' com pensation coverage that is required of Seller under the Contract Docum ents.
18 SUBSTITUTES:
18.1 References to the Goods in the Contract Docum ents will m ean the Specified Product unless a Substitute is approved pursuant to this section. Seller m ust request approval of a Substitute before delivery. The Contract Adm inistrator will not approve a Substitute that could have resulted in lower bids from all bidders if approval had been requested during the bidding process. Seller shall provide a written explanation of Seller's reasons for not requesting approval of the Substitute before bidding.
18.2 A request for substitution m ust include Product Data required by the Contract Adm inistrator for evaluation of the proposed Substitute including the following inform ation:
18.2.1 Technical characteristics of the Substitute;
18.2.2 Past perform ance and reliability of the Substitute when used for the sam e purpose as the intended use for the Specified Product.
18.2.3 Costs of providing, using, and m aintaining the Substitute; and
18.2.4 W arranties, requirem ents for m aintenance of the Substitute, and availability of m aintenance and repair service.
18.3 Seller shall certify that all inform ation regarding the Substitute provided by the Seller is true and com plete and that the perform ance of the Substitute will be equal or superior to the Specified Product.
18.4 The Contract Adm inistrator has com plete discretion to approve or reject a Substitute. Approval of a Substitute will be docum ented by an Am endm ent. The Contract Adm inistrator m ay revoke approval of the Substitute, and require Seller, at Seller's expense, to replace the Substitute if it does not conform to Seller’s representations after it is in use.
18.5 Seller shall pay all costs arising from a request for substitution regardless of whether the request is approved, including costs incurred by the County in reviewing the request.
18.6 If the cost of using an approved Substitute is less than the cost of using the Specified Product, the Contract Price will be reduced accordingly by an Am endm ent. The Contract Price will not be increased for use of the Substitute unless substitution was unavoidable.
19 DELIVERY: Seller will deliver the Goods F.O.B. to the County's address as stated in the Contract
Docum ents. Shipm ent with any reservation is prohibited. The Goods m ust be delivered by the tim e stated in the Purchase Order, or if there will be a single delivery, by the tim e stated in the Agreem ent. Item ized
packing slips m ust accom pany all deliveries. The County's Purchase Order num ber or contract num ber m ust be on Seller's invoice, packing slips, and all shipping containers.
20 RISK O F LOSS: Seller will have the risk of loss until the Goods have been delivered to the County
and are approved after inspection by the Contract Adm inistrator.
21 PATENTED O R CO PYRIGHTED ITEM S:
21.1 Seller warrants that the County's use of the Goods will not infringe upon any patent, copyright, or any other proprietary right of any third party.
21.2 Seller shall pay all license fees, royalties, and other costs required by Applicable Laws or otherwise for use of the Goods or any com ponent or constituent of the Goods that is subject to patent or copyright held by a third party. Seller shall subm it a nonexclusive, perpetual license for County to use com puter software incorporated in the Goods.
22 CANCELLATION: The County m ay cancel any Purchase Order by written notice to Seller before the
Goods are delivered. Upon receipt of the notice Seller shall stop perform ance. If the County cancels a Purchase Order under this provision, Seller will be entitled only to reasonable expenses incurred in stopping delivery and for care, custody, and transportation of the Goods after receipt of the County's notice. Seller will not be entitled to recover lost profits.
23 INSPECTION AND TESTING:
23.1 If the Specifications require that Goods be tested prior to acceptance, Seller shall have the tests conducted at Seller's expense by a third-party approved by the Contract Adm inistrator. Seller shall provide the test results to the Contract Adm inistrator prior to or concurrent with delivery.
23.2 Goods furnished under the Contract Docum ents will be subject to inspection and testing by the County at tim es and places determ ined by the County. If the Contract Adm inistrator determ ines that the Goods are not in com pliance with the Specifications, the Contract Adm inistrator m ay reject the Goods and require Seller to either cure defects or m ake an equitable price reduction. If Seller refuses to cure defects within a tim e deem ed reasonable by the Contract Adm inistrator, the County m ay enforce the County's rem edies for default. Nothing in this provision im pairs the County's rights to enforce warranties, revoke acceptance of the Goods or enforce any other rem edies under ORS Chapter 72.
24 COM PLIANCE W ITH APPLICABLE LAW S:
24.1 The Contract Docum ents will be interpreted and construed in accordance with the laws of the State of Oregon.
24.2 Seller shall com ply with all Applicable Laws regardless of whether they are cited or stated verbatim in the Contract Docum ents.
24.3 Pursuant to ORS 279B.220, Seller shall:
24.3.1 Make paym ent prom ptly, as due, to all persons providing to Seller labor or m aterial for the Goods and Services.
24.3.2 Pay all contributions or am ounts due the Industrial Accident Fund from Seller or any Subcontractor incurred in the perform ance of the Services.
24.3.3 Not perm it any lien or claim to be filed or prosecuted against the County on account of any labor or m aterial furnished.
24.3.4 Pay to the Departm ent of Revenue all sum s withheld from em ployees pursuant to ORS 316.167.
24.4 Pursuant to ORS 279C.515, if Seller fails, neglects, or refuses to m ake prom pt paym ent of any claim for Services furnished to Seller or a Subcontractor by any person in connection with the Contract as such claim becom es due, the County m ay pay such claim to the person furnishing the Services and charge the am ount of the paym ent against funds due or to becom e due Seller by reason of the Contract. The paym ent of a claim in the m anner authorized in this subsection will not relieve Seller from Seller's obligations with respect to any unpaid claim s.
24.5 Pursuant to ORS 279B.020 and ORS 279B.235, no person will be em ployed for the Services for m ore than 10 hours in any one day, or 40 hours in any one week, except in cases of necessity,
em ergency, or where the public policy absolutely requires it. Persons em ployed to provide the Services will be paid at least tim e and a half pay for legal holidays specified in a collective bargaining agreem ent or in ORS 279C.540 (1)(b)(B) to (G) and for tim e worked in excess of 10 hours a day or in excess of 40 hours a week, whichever is greater.
24.6 Pursuant to ORS 279B.230, Seller shall prom ptly, as due, m ake paym ent to any person or entity that furnishes m edical, surgical, and hospital care or other needed care and attention, incident to sickness or injury, to the em ployees of Seller, of all sum s which Seller agrees to pay for such services and all m oneys which Seller collected or deducted from the wages of Seller's em ployees pursuant to any law, contract or agreem ent for the purpose of providing or paying for such service.
24.7 Seller shall not provide or offer to provide any appreciable pecuniary or m aterial benefit in connection with this Contract to any officer or em ployee of the County in violation of ORS Chapter 244 or Douglas County Personnel Rule 20.
25 HAZARDOUS SUBSTANCES:
25.1 Seller shall com ply with all Environm ental Laws. Seller shall not bring Hazardous Substances to the Prem ises other than the Goods and Hazardous Substances that are required for the Services, as approved by the Contract Adm inistrator.
25.2 If Seller or a Subcontractor causes a release of a Hazardous Substance, contam ination of the Prem ises, or any other condition that violates an Environm ental Law, Seller shall im m ediately notify the Contract Adm inistrator and give notice to any Governm ental Agencies that is required by Environm ental Laws. Seller shall perform all rem edial acts required by Environm ental Laws, including containm ent and cleanup. The notice to the Contract Adm inistrator m ust describe the nature, location, and tim e of the occurrence; containm ent and cleanup actions; contacts with Governm ental Agencies; actions taken by Governm ental Agencies; and any injuries to persons or dam age to property.
25.3 If the Goods contain Hazardous Chem icals regulated by ORS 654.750 or OAR Chapter 437, Division 4, m aterial safety data sheets for those Goods m ust be subm itted to the Contract Adm inistrator before the Goods are delivered. Before Services begin at the Prem ises, the Parties will exchange m aterial safety data sheets, label inform ation, and instructions for precautionary m easures for Hazardous Chem icals that are at kept at the Prem ises by the County or that will be used for the Services by Seller or a
Subcontractor. Seller shall im plem ent precautions required to protect persons who perform the Services and other persons at the Prem ises from exposure to Hazardous Chem icals that m ay result from the Services.
25.4 Seller shall bear all expenses for precautionary and rem edial actions required by this section.
26 NO THIRD PARTY BENEFICIARIES: Subcontractors and the principals and em ployees of Seller
and Subcontractors are not third party beneficiaries of this Contract. Notwithstanding Subsection 24.4 and ORS 279C.515, the County is not obligated to pay any person or entity who perform s Services other than Seller.
27 LIABILITY OF CO UNTY'S OFFICERS, EM PLOYEES, AND AGENTS: Officers, em ployees, and
agents of the County will not have any direct, personal liability to Seller for actions taken on behalf of the County.
28 NO AGENCY: Seller, Subcontractors, and their principals, em ployees, and agents are not agents of
the County as that term is used in ORS 30.265.
29 INDEM NIFICATION:
29.1 Except as provided in Subsection 30.2, or as otherwise provided by Applicable Law, Seller will be responsible for, and shall defend and indem nify the County and its officers, em ployees, and agents from
Third-Party Claim s arising from the Services, including Third-Party Claim s arising from : 29.1.1 Injury to any person or dam age to property;
29.1.2 Defects in the Goods that are extant at the tim e the Goods are delivered, regardless of whether the County inspects or accepts the Goods;
29.1.3 Breach of Seller's obligations under the Contract Docum ents or subcontracts; 29.1.4 Infringem ent of any interest described in Subsection 21.2; or
29.1.5 Violation of Applicable Law by Seller or a Subcontractor.
29.2 Seller will not be responsible for Third-Party Claim s resulting solely from the negligence or other wrongful acts or om issions of the County or the County's officers, em ployees, or agents.
30 LIABILITY INSURANCE:
30.1 At all tim es while Seller is providing Services, Seller shall, at its own expense, m aintain in force a com m ercial general liability policy and a com prehensive autom obile liability policy.
30.2 The coverage under each policy m ust be equal to or greater than the lim its for claim s m ade under the Oregon Tort Claim s Act (ORS 30.260 to 30.302) with m inim um coverage as follows:
30.2.1 Com m ercial general liability lim its of at least $1,000,000 com bined single lim it per occurrence and $2,000,000 in the aggregate.
30.2.2 Autom obile liability lim its of at least $1,000,000 com bined single lim it per accident. 30.3 Unless the Special Provisions allow "claim s m ade" coverage, "occurrence" coverage m ust be provided. Each policy m ust be issued by a responsible insurance com pany that is licensed to do business in the State of Oregon.
30.4 Insurance provided pursuant to this section will be prim ary insurance for all Third-Party Claim s. Douglas County and the County's officers, em ployees, and agents m ust be nam ed as additional insureds.
30.5 Prior to starting the Services, Seller shall provide a certificate of insurance for each policy. If the insurance certificate(s) requires an endorsem ent in order for the county to be an additional insured, then Contractor shall provide a separate written endorsem ent that contains the correct policy num ber(s) and effective additional insured provisions. The County Counsel m ay reject a certificate which states that the issuing com pany will m erely "endeavor to m ail" written notice. Seller shall keep certificates current until final paym ent for the Services.
31 W ORKERS' COM PENSATION:
31.1 Seller is a "subject em ployer" as defined in ORS 656.005 and shall com ply with ORS 656.017. All persons perform ing Services m ust be covered by workers' com pensation insurance regardless of whether they are classified as "nonsubject workers" under ORS 656.027.
31.2 Before Services are perform ed, Seller shall provide to the Contract Adm inistrator a certificate of insurance for workers' com pensation coverage in a form acceptable to the County Counsel.
32 TAXES: The County generally is not subject to taxation. Seller will be responsible for paying all taxes
on the sale of the Goods.
33 CONTRACT TIM E AND SCHEDULE:
33.1 Tim e is of the essence of this Contract. Seller shall deliver the Goods and com plete the Services within the Contract Tim e and in accordance with any perform ance schedule stated in the Contract Docum ents.
33.2 The Contract Adm inistrator will consider an Am endm ent extending the Contract Tim e if the Contract Adm inistrator determ ines that delivery of the Goods or perform ance of the Services are delayed by occurrences beyond Seller's control. The Contract Tim e will not be extended because of inadequate labor, equipm ent, or m aterials; negligence or fault of Seller, Seller's suppliers, or Subcontractors; or other
deficiencies within Seller's control or responsibility.
34 CONTRACT PRICE:
34.1 The Contract Price constitutes the total com pensation payable to Seller for all com ponents and constituents of Goods and Services provided by Seller. The Contract Price will include only Pay Item s listed in the Bid Schedule.
34.2 The Contract Price m ay be stated as a Lum p Sum or in Unit Prices or as a com bination of one or m ore Lum p Sum s and Unit Prices.
34.3 If the Bid Schedule specifies "Lum p Sum " paym ent, Seller will be paid only the am ount stated in the Bid Schedule for that Pay Item .
34.4 The quantities appearing in the Bid Schedule for Unit Price Item s are approxim ate, and the County does not warrant that the actual quantities will correspond with the Bid Schedule. The am ount payable for a Unit Price Item will be equal to the actual quantity of the Unit Price Item provided by Seller tim es the Unit Price stated in the Bid Schedule.
35 PAYM ENT:
35.1 Seller is entitled to paym ent under this section only for Goods and Services provided in accordance with the Contract Docum ents as determ ined by the Contract Adm inistrator. By m aking a
paym ent the County will not be deem ed to have accepted defective Goods or Services or to have waived any breach of contract.
35.2 Seller shall subm it invoices to the Accounting Section, Departm ent of Managem ent and Finance, Room 302, Douglas County Courthouse, 1036 SE Douglas Ave., Roseburg, OR 97470 as soon as possible following the end of each calendar m onth, but no later than thirty days following the end of the calendar m onth in which the Goods or Services were provided. Progress paym ents for invoices approved by the Contract Adm inistrator will be m ade m onthly within 30 days after receipt of the invoice.
35.3 If ORS 279A.120 applies to Seller, prior to the final paym ent, Seller m ust certify to the Contract Adm inistrator that upon signing the Agreem ent, Seller reported to the Oregon Departm ent of Revenue the total Contract Price, the term of the Contract, and such other inform ation required by the Departm ent of Revenue.
35.4 The County m ay withhold from paym ents liquidated dam ages, the cost of correcting defective Goods and Services, and other am ounts for which Seller is responsible under the Contract Docum ents.
35.5 The County's obligation to m ake paym ents is conditioned upon appropriation of funds pursuant to the Oregon Local Budget Law. The County has appropriated funds for the Contract for the fiscal year that ends on June 30 following the date the Agreem ent is signed. If the County determ ines that funds will not be appropriated for any subsequent fiscal year, the County will term inate the Contract by notice to Seller.
35.6 Any provision of the Contract Docum ents that creates an obligation in violation of the debt lim itation im posed by Article XI, Section 10 of the Oregon Constitution will be void.
36 LIQUIDATED DAM AGES:
36.1 If the Goods are not delivered or the Services are not com pleted within the Contract Tim e, the County will suffer inconvenience and m onetary dam age, but ascertaining the actual loss sustained by the County m ay be difficult. In the absence of liquidated dam ages, the County m ay not have an adequate rem edy if perform ance is delayed by Seller.
36.2 The Agreem ent m ay establish reasonable liquidated dam ages which Seller shall pay to the County for failure to deliver Goods or perform Services within the Contract Tim e or in accordance with any perform ance schedule. If liquidated dam ages are not specified, the County will be entitled to recover actual dam ages resulting from avoidable delays caused by Seller.
37 DEFAULT:
37.1 A Party will be in default under the Contract Docum ents if that Party fails to com ply with any provision of the Contract Docum ents within fifteen days after the other Party gives notice specifying the breach. If the breach specified in the notice cannot be com pletely cured within the fifteen day period, no default will occur if the Party receiving the notice begins curative action within the fifteen day period and diligently proceeds to cure the breach.
37.2 Notwithstanding Subsection 37.1, the County m ay declare a default im m ediately by notice to Seller if the Contract Adm inistrator determ ines that:
Docum ents; or
37.2.2 Seller's breach of contract creates an unreasonable risk of injury to any person or dam age to property.
37.3 If a default occurs, before either Party m ay proceed with litigation, the Parties m ust first seek in good faith to resolve the dispute through negotiation or m ediation.
37.4 If a default occurs and it is not resolved under Subsection 37.3, the Party injured by the default m ay enforce its rights under the Contract Docum ents by any equitable or legal rem edies available under Oregon law. Exercising one rem edy will not im pair any other rem edy. Either Party m ay term inate the Contract for default, but enforcem ent of any other rem edy will not be construed as an election to term inate unless notice of term ination is given.
37.5 The Board reserves exclusive authority to initiate litigation on behalf of the County. Litigation arising out of the Contract Docum ents m ust be conducted in Circuit Court of the State of Oregon for Douglas County.
38 TERM INATION W ITHOUT DEFAULT:
38.1 In addition to the County's rights to term inate under Subsection 35.5, Section 37.4, and Applicable Laws, the County m ay term inate the Contract if the Board determ ines that term ination is in the best interest of the public. The County will endeavor to give Seller written notice thirty days prior to term ination under this section, but failure to give such notice will not affect the County's action.
38.2 Term ination under this section will not affect the rights of the Parties existing at the tim e of term ination. If Seller is not in default, Seller will be paid only for Services perform ed prior to term ination and reasonable expenses incurred in stopping delivery and for care, custody, and transportation of the Goods after receipt of the County's notice. Seller will not be entitled to paym ent for lost profits for any Goods or Services that are not provided prior to term ination.
39 ACTION UPON TERM INATION: Unless the Contract Adm inistrator directs otherwise, upon
receiving a notice of term ination, Seller shall stop the Services, term inate Subcontracts, stop orders for Goods, vacate the Prem ises, and deliver to the Contract Adm inistrator all docum ents in Seller’s possession and control concerning the Goods and Services.
