00000731_Sample Price Agreement.docx

OREGON DEPARTMENT OF TRANSPORTATION

SAMPLE GOODS and SERVICES CONTRACT PRICE AGREEMENT (“PA”) PA Number:

PA Title: Rock Scaling Service for ODOT Regions 1 - 4

1. CONTRACT PARTIES and OVERVIEW This PA is between the State of Oregon, acting by and through its Department of Transportation (“ODOT”) and , hereafter called “Contractor.” ODOT and Contractor together are also referred to as “Parties” and individually referred to as “Party.” The primary contacts for this PA are identified in the table below. Each Party may change their respective PA Administrator designee by promptly sending written notice via email to the other Party with a copy to ODOT’s Procurement Specialist for this PA.

Non-Exclusive Agreement. This PA is established for the convenience of ODOT. ODOT makes no guarantee of any minimum or maximum purchases under this PA. ODOT reserves the right to contract for the purchase of similar services outside of this PA in accordance with applicable law.

Accessibility and Accommodation Requests: The Oregon Department of Transportation is committed to complying with all statutory requirements to ensure that it is providing information that is more accessible to people with disabilities, as required by Section 508 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794d), and 36 C.F.R. 1194 Appendix A. To request reasonable accommodation for access, due to a disability, to information related to this document, please contact the Oregon Department of Transportation’s Procurement Office at 3930 Fairview Industrial Drive SE Salem, OR 97302-1166, phone #503-986-2710 or OPOAdmin@odot.state.or.us.

Project/Delivery Location:

Per Purchase Order Associated Invitation to Bid Number:

S-73000-00000731

ODOT’s Price Agreement Administrator:

Pete Castro, Senior Geotechnical Engineer

Procurement Specialist:

Joanne Robinson 503-986-2665 Joanne.m.robinson@odot.state.or.us

Contractor’s Price Agreement Administrator:

Name, address & phone

Alternate Contact:

Name, address & phone

2. DEFINITIONS

The following terms have the meaning provided in OAR 125-246-0110: “Business Day”, “Contract”, “Contractor”, “Goods”, “OAR”, “ORS”, “Public Works”, “Purchase Order” (“PO”), “Price Agreement” (“PA”), “Services”, “Specification”, “State”.

3.2 EXTENSIONS. Contingent upon ODOT’s need, availability of approved funding, and Contractor’s performance, ODOT may extend the PA for up to 3 additional years. The maximum term of this PA shall be 6 years. ODOT will notify Contractor in writing of ODOT's intent to extend the PA at least 30 calendar days prior to the expiration of the then-current term. If Contractor consents to the extension, ODOT will process an amendment to extend the term. If Contractor does not consent, the PA will expire according to its terms, unless earlier terminated. Notwithstanding the foregoing, ODOT reserves the right to extend the PA for up to two calendar months beyond any term without Contractor’s consent. Consecutive two-month extensions under this section are not allowed.

4.2 PRICES. Below are the maximum unit prices Contractor may charge for any Services or Goods provided under the PA. [Contractor’s pricing will be inserted below.]

PRICE

4.4 PRICE INCREASES. Contractor may request a unit price increase reflecting increased operating and raw material costs by submitting a written request to ODOT, including appropriate price documentation to justify the increase. Provided, however, the initial pricing shall remain in effect for not less than the first 24 months of the PA, no more than one unit price increase shall be allowed during any twelve-month period, and any approved price increase shall generally be limited to the most recent (at the time of the request) year-over-year increase in the Consumer Price Index, Pacific division.

5. SPECIFICATIONS

The apparent silence of the Specifications (including any supplemental Specifications) as to any detail, or the apparent omission of a detailed description concerning any point, shall be regarded as meaning that Contractor shall meet the highest standards prevalent in the industry or business most closely involved in providing the Goods and Services to be provided under the PA.

5.1 Scope of Work: The Services required under this PA are hand scaling, rockfall screen and fence repairs, and related incidental work on rock slopes adjacent to state highways. The Services will consist of removing loose rock on the slope by using hand scaling methods, removing vegetation from the slope, spraying cut vegetation, and repairing screen and/or fence installations on the slope. Rock removal with special equipment may sometimes be required. All scaling equipment, including special equipment, tools, supplies, special materials, mobilization, and skilled personnel to perform the specified Services will be provided by Contractor. Services under this PA are intended be performed within the boundaries of ODOT Regions 1, 2, 3, and 4; however, ODOT personnel in ODOT Region 5 may order Services under the PA with the agreement of Contractor. Contractor is under no obligation to accept orders from Region 5, but if Contractor agrees to do so, all requirements under the PA will apply, and compensation under pay items #2 – 10 will apply. If Region 5 requests Services, Contractor shall supply a site mobilization/de-mobilization price for the order.

A map of ODOT Regions is available online: https://www.oregon.gov/odot/Data/Documents/Region_RegionMap.pdf

5.2 Minimum Requirements for Scaling Operations: Contractor shall provide trained scalers to work on the slope and, when appropriate, a ground support person for communication and safety. Contractor must provide its own communication equipment. Each scaler must be capable of ascending and descending slopes with the aid of proper equipment, must have received training on scaling in a responsible manner, and must have 500 hours of experience scaling. Contractor shall provide a lead scaler for each project, who must be on the project at all times. The lead scaler must have 1500 hours of experience scaling. If the lead scaler on any project is other than a person whose experience was included as part of Contractor’s original bid for the PA, Contractor must provide evidence to ODOT of the lead scaler’s experience prior to the start of work on the project. One scaling trainee will be allowed on a project in lieu of a scaler. Each scaling trainee must be capable of ascending and descending slopes with the aid of proper equipment, and must have received training on scaling in a responsible manner. Any Contractor personnel performing herbicide applications must possess an appropriate license, in accordance with ORS Chapter 634. Contractor must have proper licensing to apply herbicides, in accordance with ORS Chapter 634.

5.3 ODOT-Provided Services and Supplies:

· ODOT may provide traffic control services or may request these services from Contractor. Contractor may choose to offer these services with any combination of Contractor personnel and equipment, rental equipment, and subcontractors.

· ODOT may clean up rock and vegetation on the roadway generated by the scaling and repair operations or may request these services from Contractor. Contractor may choose to offer these services with any combination of Contractor personnel and equipment, rental equipment, and subcontractors.

· ODOT will provide an ODOT inspector to direct the work to be accomplished.

5.4 Daily Work Log: Contractor shall keep a daily log of the unit quantities performed/provided for each pay item described in Section 5.5 Pay Items/Payments. The log must be reconciled with the ODOT inspector each day.

5.5 Pay Items/Payments: Payment will be made to the Contractor upon Contractor’s submission of invoices for the actual quantities of pay items performed according to the PA terms. A minimum payment of four hours per person per project site will be provided for project sites which require less than four hours of work.

5.5.1 Pay items 1 through 10 for this PA are listed in Section 4 and are described as follows:

a. Site Mobilization/demobilization: Contractor shall provide project mobilization consisting of of moving all Contractor-owned equipment, tools, and personnel not included in the pay item “Scalers” required to complete the Services as specified in each order from Contractor’s facility to the project site. For the purposes of this PA, each project site may include multiple highway cut sections within a single twenty mile roadway section, which may include multiple highways. The unit price for site mobilization/demobilization will be a lump sum amount per project site.

b. Scaler: This pay item will be paid at an hourly rate per person, representing payment in full for all wages, benefits, materials, equipment, tools, labor, and incidentals necessary to complete the Services. At no additional cost to ODOT, Contractor shall provide the standard materials, equipment, and tools on all projects that include, but are not limited to, ropes, harnesses, pry bars, come-alongs, jacks, shovels, pliers, wrenches, hammers, screwdrivers, hand saws, chain saws, air bags, boulder busters or chemical breaking compounds, compressors, and hand held rock drills.

a. Herbicide applicators shall be available to projects when required. (See the “Materials” section regarding payment for herbicide chemicals.) Contractor shall use a 100% solution of Triclopyr herbicide (with at least 40% Triclopyr as the active ingredient) within 2 minutes of cutting each tree or shrub.

c. Scaler, weekends/holidays: This pay item is identical to pay item #2, Scalers, except that it is for work performed on Saturday, Sundays, or the following state-recognized holidays:

i. New Year’s Day on January 1

ii. Martin Luther King Day on the third Monday in January

iii. Presidents’ Day on the third Monday in February

iv. Memorial Day on the last Monday in May

v. Juneteenth on June 19

vi. Independence Day on July 4

vii. Labor Day on the first Monday in September

viii. Veterans Day on November 11

ix. Thanksgiving Day on the fourth Thursday in November

x. The Friday after Thanksgiving

xi. Christmas Day on December 25

d. Scaler Trainee: This pay item is identical to pay item #2, Scalers, except that it is for an employee that does not have 500 hours of experience scaling.

e. Scaler Trainee, weekends/holidays: This pay item is identical to pay item #4, except that it is for work performed on Saturdays, Sundays, or the state-recognized holidays listed in pay item #3, above.

f. Ground Support Person: The unit price is an hourly rate, inclusive of all wages, benefits, materials, and equipment. This is a person who observes the scaling operation from a position below the cut section for safety compliance, tends equipment, and provides communication between the ODOT inspector and the scalers.

g. Ground Support Person, weekends/holidays: This pay item is identical to pay item #6, Ground Support Person, except that it is for work performed on Saturdays, Sundays, or the state-recognized holidays listed in pay item #3, above.

h. Miscellaneous Work: This is work required to obtain special materials or rental equipment needed for scaling or screen or fence repairs that occurs after the initial mobilization. The unit price will be an hourly rate, inclusive of all wages, benefits, mileage, and equipment.

i. Standby Time: Standby time will be paid at an hourly rate per person to the nearest half of an hour, with a maximum of eight hours or the balance of an eight-hour shift in any 24-hour period, whichever is less. Standby time includes all time during which Contractor is unable to perform work as a result of a directive from ODOT that is not related to the Contractor’s performance or lack of adherence to the PA or an order placed under the PA. Standby includes delays in work (other than Force Majeure, including weather, see Section 6.22) directed by ODOT. Standby time taken for other reasons will be incurred at Contractor’s expense unless written authorization is provided by ODOT.

j. Site Visit: Payment for site visits will be paid at an hourly rate for one lead scaler to visit a site before scaling operations at the request of ODOT. Time paid includes time on site used to evaluate a project with ODOT and reasonable travel time to and from Contractor’s office. Mobilization/demobilization and per diem are not relevant to this pay item.

5.5.2 ODOT will reimburse Contractor for materials, equipment, and labor required for the project outside of the standard bid items provided Contractor obtains approval from ODOT in advance.

a. Materials: Contractor will be paid for materials actually used in the work, other than the standard tools, materials, and incidentals included in the pay item “Scalers,” at Contractor’s actual costs plus 17%. Examples of items to be paid for include hardware to repair existing screening and fences, Boulder Buster supplies (primers and boosters), chemical breaking compounds, and herbicide chemicals. ODOT will make the final determination as to what constitutes materials to be paid for in this manner. Receipts or other proof of purchase price for all special materials must be submitted with the invoice. Any materials paid for by ODOT become the property of ODOT, and may be made available, at ODOT’s discretion, for use on other projects performed under this PA.

b. Equipment Rental: ODOT will reimburse Contractor for rented equipment, including necessary transportation by a third party, required for the project other than the standard tools, materials, and incidentals included in the pay item “Scalers” in Section 5.5.1.b when equipment rental is approved in advance by ODOT. Invoice amount for rental equipment may not exceed cost plus 17%. Receipts or other proof of payment for all equipment rentals must be submitted with invoice.

c. Contractor-owned Equipment: ODOT will reimburse Contractor for equipment required for the project other than the standard tools, materials, and incidentals included in the pay item “Scalers” in Section 5.5.1.b only during the hours it is operated or on standby and only when such equipment is approved in advance by ODOT. ODOT will reimburse Contractor for such equipment and attachments at the rates published in Penton Media Inc.’s Rental Rate Blue Book (Blue Book) on an hourly basis according to the following formula. Hourly Rate = (Monthly Base Rate x Rate Adjustment Factor / 176 hours/month) + Hourly Operating Rate. The Blue Book “Regional Adjustment Factor” shall not apply. If approved by ODOT, standby time for the equipment will be paid at 40% of the Hourly Rate. The actual cost to transport the equipment to and from the work location will be allowed as an additional item of expense. A markup of 17% will be allowed for the transportation costs.

d. Labor: ODOT will reimburse Contractor for personnel required for the project that do not fall into regular bid items. Examples might be flaggers or equipment operators. Invoiced labor rates may not exceed Contractor’s actual costs incurred (comprised of wages, required contributions, and required benefits) plus 22%.

e. Subcontractors: ODOT will reimburse Contractor for subcontracted work required for the project outside of the standard bid items when the subcontracted work and price basis is approved in advance by ODOT. Contractor will be allowed a supplemental markup of 8%. Invoices from the subcontractor must be submitted with the invoice.

5.5.3 Per Diem. Per diem for lodging and “meals and incidentals” (as defined by the U.S. General Services Administration (“GSA”)) will be paid when specifically authorized on an order form and in accordance with this section. Charges for per diem will only be authorized during instances of overnight travel resulting in commercial lodging expenses as follows:

a. Per Diem will not be paid when the project site is within 50 miles of the Contractor’s office.

b. For project site(s) which is (are) more than 50 miles away from Contractor’s office: Per Diem will be paid starting the second day of work for weeks with two or more consecutive days of work;

c. For project site(s) which is (are) more than 100 miles away from Contractor’s office: Per Diem will be paid starting the first day of work for weeks with two or more consecutive days of work;

d. Contractor’s charges for per diem shall not exceed the rates established by the GSA and published on their Per Diem Rates website, currently: https://www.gsa.gov/travel/plan-book/per-diem-rates, except that lodging taxes may additionally be submitted.

e. Per diem for meals and incidentals will be paid per person, per day, for scalers, scaler trainees, and ground support persons, in accordance with GSA standards, upon receipt of an associated lodging invoice and/or receipt. Receipts for meals are not required. Per Diem for lodging will be paid up to the maximum rate(s) established by the GSA, upon a correct invoice and/or receipt.

f. Payment of partial per-diem for a portion of non-worked days for extended duration work sites (defined as multiple contiguous work weeks) is applicable when work is progressed for at least 2 days prior to, and 2 days after a work break of not more than two days in duration. In such instances the Agency will allow for 50% of the per-diem rate for not more than one non-worked day.

g. In the instance that commercial lodging is shared by multiple employees, the full meal per-diem is permissible for each employee and a pro rata share (depending on how many employees share a single shared lodging) of payment of partial lodging per-diem for a portion of non-worked days for extended duration work sites. Only one commercial lodging per-diem charge is eligible for shared lodging.

6.2 RESERVED

6.3 INSPECTIONS. Goods furnished under this PA shall be subject to inspection and test by ODOT at times and places determined by ODOT. If ODOT finds Goods and Services to be incomplete, not in compliance with PA requirements, or deficient in any way, ODOT, at its sole discretion, may either reject the Goods and Services, require Contractor to correct any deficiencies without charge, or negotiate with Contractor to sell the Goods and Services to ODOT at a reduced price, whichever ODOT deems equitable under the circumstances. ODOT will provide written notice of any rejected Goods and Services that, at a minimum, itemizes the apparent deficiencies. If Contractor is unable or refuses to cure any deficiencies within a time deemed reasonable by ODOT, ODOT may reject the Goods and Services and cancel the PA, the order, or both, in whole or in part. Nothing in this paragraph shall in any way affect or limit ODOT’s rights as Buyer under the Uniform Commercial Code including but not limited to the rights and remedies relating to rejection under ORS 72.6020 and revocation of acceptance under ORS 72.6080. ODOT’s review, approval or acceptance of, or payment for, the Goods and Services required under the PA shall not be construed to operate as a waiver of any rights under the PA or of any cause of action arising out of the Contractor’s performance, and Contractor shall be and shall remain liable to ODOT in accordance with applicable law for all damages to ODOT caused by Contractor’s performance or failure of any of the Goods furnished under the PA.

6.4 INVOICES. Contractor shall submit invoices by the 10th of each month for the Goods and Services provided during the previous month. Invoices shall be submitted separately for each order to the email address as indicated in the PA Order Form. Contractor’s invoice must include:

· PA number and order number;

· A detailed description of Services and any Goods provided, including dates provided, prices of the Services and any Goods, and the total cost for all Services and Goods under the order;

· Itemization of any expenses for which Contractor claims reimbursement, but only as authorized under the PA or preauthorized in writing by ODOT’s PA Administrator or the person who placed the order; and

· The total amount due and the payment address.

6.5.2 Direct Deposit via Automated Clearing House (“ACH”). For Contractors that receive ongoing monthly payments from ODOT on one or more contracts or price agreements, ODOT prefers making payments via ACH direct deposit. While not required, if Contractor has not previously authorized ACH direct deposit and would prefer ACH to expedite transfer of payments after invoices are approved, Contractor must complete a Vendor ACH Authorization form and submit to ODOT per the instructions on the form.

6.5.3 Basis of Payment. ODOT will pay all amounts due upon approval of Contractor’s invoice, but only after ODOT has determined that Contractor has provided and ODOT has accepted all Goods and Services required and in conformance with requirements of the PA and the order placed under the PA.

6.5.4 Expenses. Other than allowable per diem charges as described in the Pay Items section, all Contractor travel and other expenses, if any, are included in the fixed-price amount(s) established in the PA.

6.5.5 Retainage. ODOT may initiate, at any time, withholding of payment equal to 5% of the amount of each invoice submitted. ODOT will make final payment of any balance due to Contractor promptly upon verification by ODOT of completion and acceptance of all deliverables and will pay interest as required on retainage.

6.5.6 Pay Equity Compliance.

a. Discriminatory Wage Rates Prohibited. As required by ORS 279B.235, Contractor must comply with ORS 652.220 and shall not unlawfully discriminate against any of Contractor’s employees in the payment of wages or other compensation for work of comparable character on the basis of an employee’s membership in a protected class. “Protected class” means a group of persons distinguished by race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability, or age. Contractor’s compliance with this section constitutes a material element of this PA and a failure to comply constitutes a breach that entitles ODOT to terminate this PA for cause.

b. Employee Discussions Regarding Compensation. As required by ORS 279B.235, Contractor may not prohibit any of its employees from discussing the employee’s rate of wage, salary, benefits or other compensation with another employee or another person and may not retaliate against an employee who discusses the employee’s rate of wage, salary, benefits or other compensation with another employee or another person.

a. Contractor has the power and authority to enter into and perform the PA and that such PA and any PA Order Forms entered into under the PA, when executed and delivered, shall be valid and binding obligations of Contractor enforceable in accordance with their terms.

b. All express and implied warranties that are applicable to goods under ORS Chapter 72 apply to any Goods delivered under this PA. Any materials provided under the PA shall be free from defects in materials and manufacture and shall meet the requirements of the Specifications/statement of work under the PA and any orders placed under the PA.

c. Contractor is duly licensed to provide the Goods and Services specified in the PA, and if there is no licensing requirement, Contractor is duly qualified and competent to perform in accordance with the highest standards prevalent in the industry or business most closely involved in providing the Goods and Services to be provided under the PA.

d. Contractor shall have all manufacturer warranties covering any Goods (and component parts, where applicable) supplied under the PA transferred to ODOT at time of delivery at no charge. Contractor shall be responsible for completing and processing any warranty registration paperwork required by manufacturer. If a conflict or inconsistency exists between a manufacturer’s warranty and Contractor’s warranty, the warranty that provides the greatest benefit and protection to State shall prevail.

e. Any materials delivered under the PA are free and clear of any liens and encumbrances, that Contractor has full legal title to the materials, and that no other person has any right, title or interest in the materials which shall be superior.

f. Contractor has no undisclosed liquidated and delinquent debt owed to the State or any department or agency of the State.

6.6.2 Warranties Cumulative. The warranties set forth in this section are in addition to, and not in lieu of, any other warranties provided in the PA. All warranties provided in the PA shall be cumulative, and shall be interpreted broadly to give ODOT the greatest warranty protection available.

a. In addition to the remedies afforded elsewhere herein, ODOT shall be entitled to recover any and all damages suffered as a result of Contractor's breach of the PA or any orders placed under the PA, including but not limited to direct, indirect, incidental and consequential damages. ODOT may also be entitled to any equitable remedies to which it may show itself entitled.

b. In the event Contractor has liquidated and delinquent debt owed to the State of Oregon or any department or agency of the State, ODOT may:

i. Undertake collection by administrative offset, or garnishment if applicable, of all monies due for Services and Deliverables to recover liquidated and delinquent debt owed to the State of Oregon or any department or agency of the State. Offsets or garnishment may be initiated after the Contractor has been given notice if required by law;

ii. Terminate the PA and any orders placed under the PA, in whole or in part, immediately upon written notice to Contractor or at such later date as ODOT may establish in such notice; or

iii. Pursue any or all of the remedies available under the PA, at law, or in equity.

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

6.7.2 Contractor's Remedies. In the event ODOT terminates the PA or cancels any order placed under the PA under either Section 6.8.2 or 6.8.3, or in the event ODOT is in default of a material provision of the PA or any order placed under the PA and whether or not Contractor elects to exercise its right to terminate the PA under Section 6.8.4, Contractor's sole remedy shall be (a) a claim against ODOT for the unpaid price for any Goods delivered and accepted by ODOT, (b) with respect to Services compensable on an hourly basis, a claim against ODOT for unpaid invoices, hours worked but not yet billed, and authorized expenses for Services completed and accepted by ODOT, or (c) with respect to deliverable-based Services, a claim against ODOT for the sum designated for completing the deliverable multiplied by the percentage of Work completed and accepted by ODOT, less previous amounts paid and any claim(s) which State has against Contractor. If previous amounts paid to Contractor exceed the amount due to Contractor under this Section, Contractor shall pay any excess to ODOT upon written demand.

6.7.3 Attorney’s Fees. With the exception of defense costs and expenses pursuant to Section 6.13, neither party shall be entitled to recover attorneys’ fees, court and investigative costs, or any other fees or expenses associated with pursuing a remedy for damages arising out of or relating to the PA or any order placed under the PA.

a. ODOT fails to receive appropriations or other expenditure authority sufficient to allow ODOT, in the exercise of its reasonable administrative discretion, to continue to make payments for the Goods and Services to be provided under the PA;

b. Federal or State laws, regulations, or guidelines are modified or interpreted in such a way that either the purchase of Goods and Services under the PA or any order placed under the PA is prohibited or ODOT is prohibited from paying for such Goods and Services from the planned funding source;

c. Contractor has liquidated and delinquent debt owed to the State of Oregon or any department or agency of the State; or

d. Contractor commits any material breach or default of any covenant, warranty, obligation, certification or agreement under the PA and such breach is not cured within 14 calendar days after ODOT's notice to Contractor, or such longer period as ODOT may specify in the notice. Pursuant to this section, upon receipt of written notice of termination, Contractor shall stop performance under the PA (or any order placed under the PA) as directed by ODOT.

6.9 SURVIVAL. Termination of the PA shall not extinguish or prejudice ODOT's right to enforce the following provisions: 6.6 Representations and Warranties; 6.10 Compliance with Applicable Laws and Standards, 6.11 Governing Law; 6.12 Venue, Consent to Jurisdiction; 6.13 Indemnification; 6.18 Access to Records; 6.7 Remedies; and all other remedy provisions included in the PA.

6.10 COMPLIANCE WITH APPLICABLE LAWS AND STANDARDS. Contractor shall comply with all federal, State and local laws, regulations, executive orders and ordinances applicable to this PA or to Contractor’s obligations under this PA, as they may be adopted or amended from time to time. All rights and remedies available to ODOT under applicable federal, State and local laws are also incorporated by reference herein and are cumulative with all rights and remedies under the PA. Without limiting the generality of the foregoing, ODOT’s performance is conditioned upon Contractor’s compliance with the following laws, regulations and executive orders (as amended from time to time) to the extent they are applicable to the PA:

a. (Non-discrimination) Titles VI and VII of Civil Rights Act of 1964; Sections 503 and 504 of the Rehabilitation Act of 1973; the Americans with Disabilities Act of 1990; Executive Order 11246; The Age Discrimination in Employment Act of 1967, and the Age Discrimination Act of 1975; The Vietnam Era Veterans’ Readjustment Assistance Act of 1974;

b. ORS 279B.020 Maximum hours of labor on public contracts; holidays; exceptions; liability to workers; rules;

c. ORS 279B.220 – Prompt payment to suppliers and subcontractors; payment of contributions or amounts due the Industrial Accident Fund; liens or claims against the State on account of any labor or material furnished; payment of withholding to the Department of Revenue under ORS 316.167;

d. ORS 279B.230 – Payment for medical care and providing workers’ compensation;

e. ORS 279B.235 Condition concerning hours of labor;

f. all regulations and administrative rules established pursuant to the foregoing laws.

6.11 GOVERNING LAW. The PA shall be governed by and construed in accordance with the internal laws of the State without regard to principles of conflicts of law. To the extent not modified by the terms of this PA, the Uniform Commercial Code as codified in ORS Chapters 71 and 72 governs any Goods sold under this PA.

6.12 VENUE; CONSENT TO JURISDICTION. Any claim, action, suit or proceeding (collectively, "Claim") between ODOT and Contractor that arises from or relates to the PA shall be brought and conducted solely and exclusively within the Circuit Court of Marion County for the State; 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. Nothing herein shall be construed as a waiver of the State's sovereign or governmental immunity, whether derived from the Eleventh Amendment to the United States Constitution or otherwise, or of any defenses to Claims or jurisdiction based thereon.

6.13 INDEMNIFICATION. Contractor shall defend, save, hold harmless, and indemnify the State, the Oregon Transportation Commission, ODOT, and its officers, employees and agents from and against all claims, suits, actions, losses, damages, liabilities, costs and expenses, including attorney fees, of any nature whatsoever resulting from, arising out of, or relating to the contract, including but not limited to (1) the activities of Contractor or its officers, employees, subcontractors, or agents, and (2) the Goods and Services provided by Contractor. However, the Oregon Attorney General must give written authorization to Contractor or any legal counsel purporting to act in the name of, or represent the interests of the State, its officers, employees and agents prior to such action or representation. Further, the State, acting by and through its Department of Justice, may assume its own defense, including that of its officers, employees and agents, at any time when in the State's sole discretion it determines that (i) proposed counsel is prohibited from the particular representation contemplated; (ii) counsel is not adequately defending the interests of the State, its officers, employees and agents; (iii) important governmental interests are at stake; or (iv) the best interests of the State are served thereby. Contractor's obligation to pay for all costs and expenses shall include those incurred by the State in assuming its own defense and that of officers, employees, and agents under (i) and (ii) above.

6.14 FALSE CLAIMS. Contractor understands and acknowledges it is subject to the Oregon False Claims Act (ORS 180.750 to 180.785) and to any liabilities or penalties associated with the making of a false claim under that Act. By its execution of the PA, Contractor certifies the truthfulness, completeness, and accuracy of any statement or claim it has made, it makes, it may make, or cause to be made that pertains to the PA or the Goods and Service being provided, including but not limited to Contractor’s Bid and any invoices, correspondence, reports, or other deliverables.

6.15 NOTICES. Except as otherwise expressly provided in the PA, any notices between the Parties shall be given in writing and delivered by e-mail, personal delivery, facsimile, or US Mail, postage prepaid, to the C_ontract Administrator listed for each Party in Section 1, or to such other person and address as either Party may hereafter indicate in writing to the other. Any communication or notice sent by e-mail during normal business hours on a Business Day shall be deemed received the Business Day it is sent. The recipient of any notice sent by e-mail shall reply by e-mail to confirm receipt of such notice. Any communication or notice made by personal delivery shall be deemed to be received when actually delivered. Any communication or notice properly addressed and mailed shall be deemed received 5 calendar days after the date of mailing. Any communication or notice delivered by facsimile shall be deemed received on the date of the notice of successful transmission generated by the transmitting machine.

6.16 SAFETY AND HEALTH REQUIREMENTS. Goods and Services provided under this PA must comply with all federal Occupational Safety and Health Administration (OSHA) requirements and with all Oregon Occupational Safety and Health Administration requirements, including those of the State Workers’ Compensation Division. Contractor shall take every precaution to instruct employees about and otherwise safeguard them against any possible injuries associated with chemicals or equipment as well as other potential hazards within the facility.

6.17 SAFETY DATA SHEET (SDS) AND PRODUCT LABELING. Contractor shall comply with Hazard Communication requirements set forth in 29 CFR 1910.1200. Contractor shall provide ODOT with an SDS [as defined by the Occupational Safety and Health Administration (OSHA) and the Globally Harmonized System of Classification and Labelling of Chemicals (GHS)] for any Goods provided or products used under the PA which may release or otherwise result in exposure to a hazardous chemical under normal conditions of use. Contractor shall keep SDS on file at the location where products that include classified chemicals are used or stored by Contractor.. In addition, Contractor must label, tag or mark such products with the following information:

6.17.1 Identity of the hazardous chemical(s) which must include the product identifier used on the SDS;

6.17.2 Appropriate signal word, hazard statement(s), pictogram(s), and precautionary statement(s) specified in applicable regulations for each hazard class and associated hazard category; and

6.17.3 Name and address of the chemical manufacturer, importer or other responsible entity.

6.18 ACCESS TO RECORDS. Contractor shall maintain all fiscal and other records relevant to Contractor's performance under the PA (collectively, "Records") in accordance with generally-accepted accounting principles. ODOT, its duly authorized representatives, and the federal government shall have access to Records for purposes of examination and copying. Contractor shall retain and keep accessible all Records for a minimum of 6 years, or such longer period as may be required by applicable law following expiration or termination of the PA, or until the conclusion of any audit, controversy or litigation arising out of or related to the PA, whichever date is later.

6.23 CONTRACTOR PERSONNEL. Contractor shall exercise due care to choose and manage its personnel and ensure that permitted subcontractors choose and manage their personnel so that only suitably responsible, professionally competent, and disciplined representatives will be operating in any ODOT area, many of which have sensitive and critical activities.

6.24 SEVERABILITY. If any provision of the PA is declared by a court of competent jurisdiction to be illegal, 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 PA did not contain the particular provision held to be invalid.

6.26 THIRD PARTY BENEFICIARIES. The State, the Oregon Transportation Commission and ODOT are intended third-party beneficiaries of the PA with express independent authority to enforce the terms and conditions of the PA. Otherwise, there are no third-party beneficiaries of the PA.

6.27 COUNTERPARTS. The PA may be executed in several counterparts, all of which when taken together shall constitute one agreement binding on all Parties, notwithstanding that all Parties are not signatories to the same counterpart. Each copy of the PA so executed shall constitute an original.

6.28 MERGER; AMENDMENT; WAIVER; INTERPRETATION. The PA and any order placed under the PA constitutes the entire agreement between the Parties on the subject matter thereof. There are no understandings, agreements, or representations, oral or written, not specified therein regarding the PA or any order placed under the PA. This PA may be amended, within the scope of this procurement, to the extent permitted by applicable statutes and administrative rules. No waiver, consent, modification or change of terms of the PA (collectively, "Amendment") shall bind either Party unless it is in writing and signed by both Parties and all necessary approvals have been obtained. Amendments shall be effective only in the specific instance and for the specific purpose given. The failure of ODOT to enforce any provision of the PA shall not constitute a waiver by ODOT of that or any other provision. The characterization of provisions of the PA as material provisions or the failure to comply with certain provisions as a material breach of the PA shall in no way be construed to mean that any other provisions of the PA are not material or that failure to comply with any other provisions is not a material breach of the PA.

6.29 CERTIFIED SMALL BUSINESSES. Respecting certification as a disadvantaged business enterprise, minority-owned business, woman-owned business, business that a service-disabled veteran owns or an emerging small business under ORS 200.055, as and when applicable, the Contractor shall maintain the certifications, and require in its subcontracts that subcontractors maintain the certifications required by ORS 279A.107 as a material condition of the PA. If the Contractor or subcontractor was awarded the PA or subcontract, as applicable, in the course of ODOT carrying out an affirmative action goal, policy or program under ORS 279A.100, and Contractor or subcontractor fails to maintain the required certification, ODOT may terminate the PA, require the Contractor to terminate the subcontractor, or exercise any of remedies reserved for breach of the PA (except as provided under ORS 279A.107(2)(c)). Contractor shall promptly provide written notice to ODOT if Contractor or any of its subcontractors fail to maintain an applicable certification under this provision.

6.30 Electronic Signatures. The Parties agree that signatures showing on PDF documents, including but not limited to PDF copies of the PA and amendments, submitted or exchanged via email are “Electronic Signatures” under ORS Chapter 84 and bind the signing Party and are intended to be and can be relied upon by the Parties. ODOT reserves the right at any time to require the submission of the hard copy originals of any documents.

7. SPECIAL TERMS AND CONDITIONS

ODOT may place orders under the PA that include federal funds. If ODOT indicates on a PA Order Form that federal funds are involved, Contractor must comply with the following federal provisions. For purposes of this section, “the project” means all Goods and Services provided under a placed order.

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