00006399_Att A_Sample PA.docx

Form C010-G082322

ATTACHMENT A

OREGON DEPARTMENT OF TRANSPORTATION

SAMPLE GOODS and SERVICES PA PA Number: (ORBuys Number: ) PA Title: Variable Message Signs

1. PA 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 its Contract/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.

Delivery Location:

The delivery location will be specified in each Purchase Order issued under the PA Associated Invitation to Bid Number:

S-73000-00006399 (PCMS No. 35616)

ODOT’s Contract/PA Administrator:

Doug Spencer, PE ODOT Systems Operations and ITS 2040 Laura St.

Springfield, OR 97477 503-856-6528

Procurement Specialist:

Joanne Robinson ODOT Procurement Office 503-986-2665 Joanne.m.robinson@odot.oregon.gov

Contractor’s Contract/PA Administrator:

Name, address & phone

Alternate Contact: Name, address & phone

ODOT issued RFP (Request for Proposals) No. S-73000-0006399 seeking offers for the Goods and Services described in this PA. Contractor submitted an offer in response to the RFP offering to provide the Goods and Services in strict accordance with the terms and conditions set forth in this PA and each Purchase Order issued under the PA. Therefore, ODOT and Contractor hereby enter into this PA in accordance with the following terms and conditions:

TABLE OF CONTENTS

2. DEFINITIONS

The following terms have the meaning provided in OAR 125-246-0110: “Business Day”, “Price Agreement” (“PA”), “Contractor”, “Goods”, “OAR”, “ORS”, “Public Works”, “Purchase Order” (“PO”), “Specification”, “Services”, “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 5 additional years. The maximum term of this PA shall be 15 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 DELIVERY SCHEDULE. ODOT intends to negotiate details of this section with the successful Proposer. Contractor shall complete delivery of all Goods and Services ordered within 120 days of ODOT’s issuance of an authorized PO. Contractor’s failure to complete delivery within the time required may result in assessment of liquidated damages (See Section 7.2) or cancellation of the PO. Repeated failure to meet the delivery requirements may result in termination of the PA.

4.3 PRICING: Contractor shall provide the Goods and Services at the following prices:

[Pricing will be placed here once the final PA is negotiated.]

4.4 PRICE ADJUSTMENTS.

The initial pricing shall remain in effect for not less than the first 24 months of the PA. Following this initial period, Contractor may request price adjustments by submitting a written request to ODOT. Any such request must include appropriate justification that documents factors beyond the Contractor’s control, such as increased operating and raw material costs directly impacting items provided under the PA. No more than one price increase request may be submitted during any 12-month period. ODOT may conduct any market research it deems necessary to determine reasonableness of the request, and each request is subject to negotiation. 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.

The Specifications applicable to any Goods and Services provided under the PA are set forth in Exhibit A to this PA.

6.2 DELIVERY TERMS. All Goods shall be provided F.O.B. destination with all transportation and handling charges paid by Contractor, unless otherwise agreed to in writing by ODOT. Responsibility and liability for loss or damage shall remain with Contractor until final inspection and acceptance.

6.3 INSPECTIONS. Goods furnished under this PA shall be subject to inspection and test by ODOT at times and places determined by ODOT. ODOT may request to have a pre-delivery inspection at Contractor's location to ensure specification compliance PRIOR TO DELIVERY. If ODOT finds Goods to be incomplete, not in compliance with PA requirements, or deficient in any way, ODOT, at its sole discretion, may either reject the Goods , require Contractor to correct any deficiencies without charge, or negotiate with Contractor to sell the Goods to ODOT at a reduced price, whichever ODOT deems equitable under the circumstances. ODOT will provide written notice of any rejected Goods 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 cancel the PA, the PO, 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 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. This section may change based on Negotiations with the successful Proposer regarding delivery schedule. 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 PO to the email address as indicated in the PO. Contractor’s invoice must include:

· PA number and PO number;

· The description and quantity of Goods or Services, or both, ordered, the quantity of Goods delivered and Services performed, the date Goods were delivered and Services were performed, the price per unit, if applicable;

· 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 (https://www.oregon.gov/ODOT/Forms/2ODOT/7310781.pdf) and submit to ODOT per the instructions on the form.

6.5.3 Basis of Payment. This section may change based on Negotiations with the successful Proposer regarding delivery schedule. ODOT will pay Contractor 80% of the unit price per sign upon ODOT’s approval of Contractor’s invoice.

ODOT will pay Contractor the remaining 20% upon ODOT’s approval of Contractor’s invoice after each sign has undergone complete sign commissioning performed by Contractor and witnessed by ODOT, but in no event later than 120 days after the date of delivery, unless the commissioning has not been completed due to Contractor’s failure to perform or supply acceptable Goods. If any sign fails commissioning, ODOT will not pay the remaining 20% until Contractor corrects all identified deficiencies. If Contractor fails to correct all deficiencies ODOT may reject the sign, cancel the PO, and demand a full refund of all payments previously made for the rejected sign.

6.5.4 Expenses. All Contractor travel and other expenses, if any, are included in the fixed-price amount(s) established in the PA and are not separately reimbursable under 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 POs 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 POs entered into 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 PO entered into 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 POs entered into 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 any PO entered into 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 PO entered into 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. In no circumstance shall Contractor be entitled to lost profits for Work not performed due to termination.

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 attorney's 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 PO entered into 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 PO entered into 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 PO entered into 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. Due to federal funding for this Contract, applicable federal requirements govern in the event of conflicts among federal, State and local laws. 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 Services being provided, including but not limited to Contractor’s Bid and any invoices, correspondence, reports, or other deliverables. In addition to the Oregon False Claims laws, if this PA or any PO incudes Federal funding, Contractor understands and acknowledges Contractor is subject to the Federal False Claims Act, 31 U.S.C. Sections 3729 – 3733, and to any liabilities or penalties associated with the making of a false claim under either Act.

6.15 NOTICES. Except as otherwise expressly provided in the PA, any notices between the Parties shall be given in writing by email, personal delivery, facsimile, or postage-prepaid US Mail, to the Contract/PA 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 email 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 email shall reply by email 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 POs entered into 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 POs entered into 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.

7.1.1 Buy America Requirements - Contractor shall limit the quantity of foreign materials to be incorporated into the work as follows. Section 635.410 of Title 23, Code of Federal Regulations, and the Intermodal Surface Transportation Efficiency Act require that all iron or steel manufacturing processes, including, without limitation, the casting of ingots, for iron or steel materials permanently incorporated into the project shall occur in the United States, unless the cost of foreign-origin iron or steel materials does not exceed one-tenth of one percent (0.1%) of the project amount or $2,500, whichever is greater. Contractor shall not incorporate foreign-origin iron or steel materials in excess of this amount into the project. All foreign-origin iron or steel materials incorporated in the project in excess of the amount indicated above shall be removed and replaced with domestic iron or steel materials at Contractor's expense. For purposes of this section, the cost of foreign-origin iron or steel materials shall be the value of the iron or steel products as of the date they are delivered to ODOT.

Manufacturing processes include without limitation the application of coatings to finished iron or steel products or components. Coatings include epoxy coating, galvanizing, painting, and any other coating that protects or enhances the value of the steel or iron product or component.

Contractor shall provide ODOT or its designee with a Certificate of Materials Origin, on a form furnished by ODOT, before delivering any iron or steel products to be incorporated into the project. Unless a Certificate of Materials Origin has been provided to ODOT or its designee, the materials shall be considered of foreign origin.

Contractor shall retain manufacturers' certificates verifying the origin of all domestic iron or steel materials for 3 years after the date of final payment for the purchase and shall furnish copies to ODOT upon request.

7.1.2 Build America Buy America Act Requirements - If federal highway funds are involved on the project for which a VMS is purchased under this PA, Contractor shall comply with the Build America Buy America Act and implementing regulations (Infrastructure Investment and Jobs Act (“IIJA”), Pub. L. No. 117-58, which includes the Build America, Buy America Act (“the Act”). Pub. L. No. 117-58, Sections 70901-70941). 00160.30 51 All of the manufacturing processes must occur in the United States for the applicable construction materials permanently incorporated in the project as listed below.

Construction materials include an article, material, or supply that is or consists primarily of:

· non-ferrous metals;

· plastic and polymer-based products (including polyvinylchloride, composite building materials, and polymers used in fiber optic cables);

· glass;

· lumber;

· or drywall.

Contractor shall provide ODOT with a Certificate of Materials Origin, on a form furnished by ODOT, before delivering Goods. Unless a Certificate of Materials Origin has been provided to ODOT, the products and materials shall be considered of foreign origin.

No de minimis amount has been established for applicable construction materials permanently incorporated into the project. Strict compliance is required.

Contractor shall retain manufacturers' certificates verifying the origin of all applicable construction materials for 3 years after the date of final payment for the purchase, and shall furnish copies to ODOT upon request.

Manufactured products assembled outside the construction project site are not subject to the Build America Buy America requirements. Manufactured products are items that consist of two or more of the listed construction materials that have been combined together through a manufacturing process, and items that include at least one of the listed construction materials combined with a material that is not listed through a manufacturing process, and should be treated as manufactured products, rather than as construction materials.

Iron and steel materials are subject to Section 7.1.1.

The Contractor shall include this provision in all subcontracts.

7.1.3 Cargo Preference Act Requirements - If federal funds are involved on the project for which the Goods are being supplied, Contractor shall comply with the Cargo Preference Act and implementing regulations (46 CFR Part 381) for use of United States flag ocean vessels transporting materials or equipment acquired specifically for the project. Strict compliance is required, including, but not limited to, the clauses in 46 CFR 381.7(a) and (b), which are incorporated by reference. Contractor shall also include this provision in all subcontracts.

7.2 LIQUIDATED DAMAGES. [This section will be negotiated with the selected Proposer]

7.3 WARRANTIES. [Based on Proposal response.]

8. PA EXHIBITS

This PA includes the following exhibits, each of which is incorporated into this PA as though fully set forth herein:

· Exhibit A – Specifications

· Exhibit B – RESERVED

· Exhibit C – Insurance Requirements

· Exhibit D – Title VI Non-Discrimination Provisions

· Exhibit E – DISADVANTAGED BUSINESS ENTERPRISE (“DBE”) PROVISIONS

· Exhibit F – RESERVED

· Exhibit G – Purchase Orders & Reporting Requirements

9. CONTRACTOR CERTIFICATIONS and SIGNATURES A. Any individual (the undersigned) signing on behalf of Contractor hereby certifies under penalty of perjury:

(1) Contractor has provided its correct TIN to ODOT.

(2) Contractor is not subject to backup withholding because (a) Contractor is exempt from backup withholding, (b) Contractor has not been notified by the IRS that Contractor is subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified Contractor that Contractor is no longer subject to backup withholding.

(3) The undersigned is authorized to act on behalf of Contractor, the undersigned has authority and knowledge regarding Contractor’s payment of taxes, and to the best of the undersigned’s knowledge, Contractor is not in violation of any Oregon Tax Laws or any applicable tax laws of political subdivisions of this State. For purposes of this certification, “Oregon Tax Laws” means: (i) all tax laws of this state, including but not limited to ORS 305.380(4), ORS 305.620 and ORS chapters 316, 317, and 318; and (ii) any tax provisions imposed by a political subdivision of this state that apply to Contractor, to Contractor’s property, operations, receipts, or income, or to Contractor’s performance of or compensation for any work performed by Contractor; and (iii) any tax provisions imposed by a political subdivision of this state that apply to Contractor, or to goods, services, or property, whether tangible or intangible, provided by Contractor; and (iv) any rules, regulations, charter provisions, or ordinances that implement or enforce any of the foregoing tax laws or provisions.

B. Any individual (the undersigned) signing on behalf of Contractor hereby certifies the undersigned is authorized to sign this PA and that:

(1) Contractor has read this PA, understands it, and agrees to be bound by its terms and conditions.

(2) Contractor understands and agrees that various Exhibits to the PA are not physically attached, but are incorporated by reference in Part I, Section 4 and have the same force and effect as if fully set forth herein.

(3) Contractor understands and has provided to all Associates the ODOT COI Guidelines and COI Disclosure Form available at: https://www.oregon.gov/ODOT/Business/Procurement/Pages/PSK.aspx. Contractor and (to the best of the undersigned’s information, knowledge and belief) Contractor’s Associates are in compliance with the disclosure requirements of the COI Disclosure Form and have no conflicts of interest to disclose. If disclosures regarding this PA or the related Project are required per the COI Disclosure Form, Contractor has made such disclosures to ODOT on a properly prepared and submitted form and, if determined necessary by ODOT, a mitigation plan has been approved by ODOT.

(4) Contractor represents and warrants and attests that Contractor has for the six years preceding the effective date of this PA complied with, and agrees that during the term of this PA shall comply with Oregon Tax Laws and applicable tax laws of political subdivisions of this State as provided in subsection A.(3) above. Contractor’s false attestation or failure to comply with Oregon Tax Laws or the applicable tax laws of political subdivisions of this State for the six years before the Contractor executed the PA or during the term of the PA is a default for which ODOT may terminate the PA, exercise of the right of setoff, or garnishment if applicable, and seek damages and other relief available under the terms of the PA or under applicable law.

(5) (a) No Federal appropriated funds have been paid or will be paid, by or on behalf of Contractor, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.

(b) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Contract, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," (https://www.gsa.gov/cdnstatic/SFLLL_1_2_P-V1.2.pdf?forceDownload=1) in accordance with its instructions.

(c) This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.

(d) Contractor shall require that the language of this certification be included in all subcontracts in excess of $100,000 at all tiers and that all such subcontractors shall certify and disclose accordingly.

(6) Contractor has a written policy and practice that meets the requirements described in ORS 279A.112, of preventing sexual harassment, sexual assault and discrimination against employees who are members of a protected class. Contractor agrees, as a material term of the PA, to maintain the policy and practice in force during the entire PA term (see additional information and sample policy template at https://www.oregon.gov/DAS/Procurement/Pages/hb3060.aspx).

(7) Contractor is an independent contractor as defined in ORS 670.600 and as described in IRS Publication 1779 (https://www.irs.gov/pub/irs-pdf/p1779.pdf).

(8) In the event that Contractor is a general partnership or joint venture, Contractor signature(s) on this PA constitutes certifications to the above statements pertaining to the partnership or joint venture, as well as certifications of the above statements as to any general partner or joint venturer signing this PA.

CONTRACTOR SIGNATURE:

__________________________________ Title: _______________________________Date: ___________

DOJ REVIEW: (Approved by via email dated )

ODOT AUTHORIZED SIGNATURE (Procurement Authority)

Signature Print Name Date

Accessibility: 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 OPOAdmin@odot.oregon.gov or phone #503-986-2710.

EXHIBIT A – SPECIFICATIONS

(Specifications for the Goods any associated Services will be inserted here in the final, negotiated PA, and will largely be based on the specifications in RFP Attachment H combined with Contractor’s Proposal responses to Attachment H.)

EXHIBIT B – RESERVED

EXHIBIT C – INSURANCE REQUIREMENTS

Contractor shall obtain at Contractor’s expense the insurance specified in this Exhibit C prior to performing under the PA and shall maintain it in force and at its own expense throughout the duration of the PA, and as required by any extended reporting period or tail coverage requirements, and all warranty periods that may apply.