00012709 Sample Contract.docx

Form C010-G122723

ATTACHMENT A – SAMPLE CONTRACT

OREGON DEPARTMENT OF TRANSPORTATION

SAMPLE GOODS and SERVICES CONTRACT Contract Number:

Contract Title: Traffic Counting Equipment

1. CONTRACT PARTIES and OVERVIEW This Contract 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 Contract are identified in the table below. Each Party may change their respective Contract Administrator designee by promptly sending written notice via email to the other Party with a copy to ODOT’s Procurement Specialist for this Contract.

Project/Delivery Location:

63055 North Highway 97 Bend, OR 97703 Attention Paul Tiller Building K Associated Invitation to Bid Number: S-73000-00012709

ODOT’s Contract Administrator:

Chris Wright 355 Capitol St NE Salem, OR 97301 503-689-3962 Chris.wright@odot.oregon.gov

ODOT Project Manager:

Stacy Snider 355 Capitol St NE Salem, OR 97301 503-586-6167 Stacy.e.snider@odot.oregon.gov

Procurement Specialist:

Terri Sinclair-Olson 3500 NW Stewart Parkway Roseburg, OR 97470 541-530-9480 Terri.sinclair-olson@odot.oregon.gov

Contractor’s Contract Administrator:

Name, address & phone

TABLE OF CONTENTS

2. DEFINITIONS

The following terms have the meaning provided in OAR 125-246-0110: “Business Day”, “Contract”, “Contractor”, “Goods”, “OAR”, “ORS”, “Services”, “Specification”, “State”.

The term Short Term, Road Tube Classification Counters and Counters are used interchangeably throughout this Contract.

4.3 RESERVED

4.4 FIRM PRICES. Prices shall be held firm throughout the term of the Contract.

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 Contract.

Mandatory Features

a. Capable of utilizing 2 road tubes for collecting both traffic volume, and vehicle classification.

b. Capable of time stamp, per vehicle records.

c. Must be capable of exporting an MS2-readable format for upload. ODOT uses MS2 as their database of record.

d. Counter data memory to be downloaded utilizing external serial data cable to computer or in the field with a USB flash drive.

e. Counter must have a minimum 5-year lithium battery life or have a user replaceable battery.

f. Counter enclosure must be waterproof and tamperproof.

g. Counter must be capable of collecting Class, Speed and Volume data.

h. Software has an ongoing maintenance and support. Identify in Proposal if a fee is charged for ongoing maintenance and support.

i. Warranty - The Roadside Traffic Counter must be warranted for a period of not less than 12 months after received.

j. Short Term Road Classification Counters must meet the Vehicle Classifications Studies using FHWA Vehicle Classifications Standards “Scheme F” at a minimum.

k. Vendor must provide any necessary external programming software, cables, keys, or other external tools, or other to ensure system operation.

l. Equipment must operate effectively in a wide range of temperatures and weather conditions, including heat, cold and moisture levels.

Desired Features: This portion will be updated based on Vendor Selected.

a. Capability to log Lat/Long of machine stored in file. Desired to have on-board GPS or connect to GPS and store coordinates automatically.

b. Counter desired to have a minimum 4-line, LCD display screen.

c. The traffic counts desired to be displayed on the display screen/face plate.

d. Counter shall be user programmable via display/face plate without need of external devices.

e. Counter is capable of programming/selecting a 24-hour count period as a minimum with 48-hour preferable.

f. Programmable for a start time (for instance coordinating a two-counter site).

g. End User Updateable Firmware.

h. Traffic Count software to be Windows based.

i. User-adjustable classification algorithm.

j. Visual indicator (text display or illuminator light) that informs end user of counter status. Examples, but not limited to: battery level, count mode, vehicle detection.

k. Each Roadside Traffic Counter should be capable of recording data according to time interval options that shall include, but need not be limited to: 5, 15, 30, and 60 minutes. Time interval selection shall be selected by the operator after the survey data is collected. The Roadside Traffic Counter must be capable of performing hourly vehicle speed, classification and volume counts while also identifying the direction of traffic in each case.

l. Batteries – The Short Term Road Classification Counters/Recorders shall be able to collect and store data for a period of not less than 30 days of continuous use without downloading or clearing its memory. Rechargeable or non-rechargeable batteries shall power the Short Term Road Classification Counters/Recorders with enough capacity for 200 days of continuous use. Said batteries shall be of a type that can be replaced by the user without having to be sent back to the manufacturer or service shop for replacement. The user should be able to view the estimated number of days of battery life remaining and the unit should provide warning when battery is low.

m. Portable counting device to collect traffic data. Each single recorder shall be able to detect, separate and record vehicle information, time of day and date in both directions with the same setup with the use of 2 hoses. This shall be accomplished by one field installation and data collection allowing any of the following reports to be produced without having to reset Counter/Recorders.

n. Counter to provide the data for the following studies

a. Classification Studies

i. Speed Studies

ii. 13 Classification

iii. Average (Mean / Median) Speed

iv. 85th Percentile Speed

v. Record speed of each vehicle and place vehicles withing pre-selected speed range such as groupings of 5 mph, for reporting purposes.

vi. Posted Speed limit

b. Volume Studies

i. Volume on a pre-selected time interval of 5,10,15, and 60-minute intervals

ii. Identify peak volume periods

o. Reports shall be in a standard format and shall be capable of importing processed data directly to Microsoft software such as Excel, Access and Microsoft Word. Cutting and pasting of data from the processing software of the Roadside Counter to one of these programs is not an acceptable method of data transfer.

6.2 RESERVED 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 and Services furnished under this Contract 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 and Services to be incomplete, not in compliance with Contract 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 Contract 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 Contract shall not be construed to operate as a waiver of any rights under the Contract 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 Contract.

6.4 INVOICES. Contractor shall submit invoice(s) to ODOT’s Contract Administrator listed on page 1 after ODOT’s acceptance of Goods and Services provided under this Contract. . Contractor’s invoice must include:

· Contract number;

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

· A detailed description of Services and deliverables provided, including the name or names of the individuals who performed Services to which the invoice applies, the dates Services were performed, the rate or rates for Services performed, and the total cost of Services;

· Itemization of any expenses for which Contractor claims reimbursement, but only as authorized under the Contract or preauthorized in writing by ODOT’s Contract Administrator; 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 (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.

OPTION 1 – Full completion. 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 Contract requirements.

6.5.4 Expenses. All Contractor travel and other expenses, if any, are included in the fixed-price amount(s) established in the Contract and are not separately reimbursable under the Contract.

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, gender identity, national origin, marital status, veteran status, disability, or age. Contractor’s compliance with this section constitutes a material element of this Contract and a failure to comply constitutes a breach that entitles ODOT to terminate this Contract 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 Contract and that such Contract , 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 Contract. Any materials provided under the Contract shall be free from defects in materials and manufacture and shall meet the requirements of the Specifications/statement of work under the Contract.

c. Contractor is duly licensed to provide the Goods and Services specified in the Contract, 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 Contract.

d. Contractor shall have all manufacturer warranties covering any Goods (and component parts, where applicable) supplied under the Contract 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 Contract 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 Contract. All warranties provided in the Contract 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 Contract, 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 Contract, 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 Contract, 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 Contract under either Section 6.8.2 or 6.8.3, or in the event ODOT is in default of a material provision of the Contract and whether or not Contractor elects to exercise its right to terminate the Contract 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 Contract .

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 Contract;

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 Contract 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 Contract 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 Contract as directed by ODOT.

6.9 SURVIVAL. Termination of the Contract 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 Contract.

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 Contract or to Contractor’s obligations under this Contract, 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 Contract. 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 Contract:

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 Contract 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 Contract, the Uniform Commercial Code as codified in ORS Chapters 71 and 72 governs any Goods sold under this Contract.

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 Contract 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 180.785http://uscode.house.gov/) and to any liabilities or penalties associated with the making of a false claim under that Act. By its execution of the Contract, 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 Contract 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 Contract, any notices between the Parties shall be given in writing by e-mail, by personal delivery, or mailing the same, postage prepaid, to the Contract 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 Contract 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 Contract 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 Contract (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 Contract, or until the conclusion of any audit, controversy or litigation arising out of or related to the Contract, 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 Contract 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 Contract 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 Contract with express independent authority to enforce the terms and conditions of the Contract. Otherwise, there are no third-party beneficiaries of the Contract.

6.27 COUNTERPARTS. The Contract 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 Contract so executed shall constitute an original.

6.28 MERGER; AMENDMENT; WAIVER; INTERPRETATION. The Contract 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 Contract. This Contract 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 Contract (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 Contract shall not constitute a waiver by ODOT of that or any other provision. The characterization of provisions of the Contract as material provisions or the failure to comply with certain provisions as a material breach of the Contract shall in no way be construed to mean that any other provisions of the Contract are not material or that failure to comply with any other provisions is not a material breach of the Contract.

6.29 CERTIFIED SMALL BUSINESSES. Respecting certification as a disadvantaged business enterprise, minority-owned business, woman-owned business, business that a 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 Contract. If the Contractor or subcontractor was awarded the Contract 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 Contract, require the Contractor to terminate the subcontractor, or exercise any of remedies reserved for breach of the Contract (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 Contract 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

7.3. RESERVED ADDITIONAL WARRANTY PROVISIONS. The following provisions are in addition to the warranty provisions found elsewhere in this Contract:

7.3.1 Warranty on Goods, Design, Manufacture: Unless otherwise provided in the Specifications, Goods shall be new, unused, current production models, fit for its intended purpose, and free from defects in materials, design, and manufacture for the duration of the applicable manufacturer warranty periods, any portion of the standard warranty on any of the components that exceed these requirements apply. Where Specifications have been made a part of the ITB, Contractor further warrants that all Goods conform to the Specifications and meets or exceeds safety and quality standards established in the Contract.

7.3.2 Basic Warranty: The basic warranty on the Short Term Road Tube Classification Counters must be for a period of not less than 1 year. The basic warranty on all other components must be for a period of not less than 1 years. Any portions of the standard warranty on any of the components that exceed these requirements apply. Warranty periods for Contractor's warranties on materials, design, and manufacture will not start until the date the Unit is actually put into service, as established by ODOT's business records.

a. The warranty excludes consumables such as lamps, lights, belts, ground engagement tools, batteries and tires, except as warranted by the manufacturer of said items. It also excludes damage to the unit due to accident, misuse, abuse, vandalism or operator or maintenance neglect.

b. With prior Contractor approval and if the unit is urgently needed, the State may elect to have equipment transported by ODOT to the Contractor's authorized repair center for warranty work. The Contractor shall reimburse ODOT for all costs thereof.

c. The Contractor shall be responsible for all warranty adjustment expenses. Services / costs in excess of published flat rate may be negotiated. Applicable published flat rates must be provided to ODOT prior to warranty work.

d. If the Contractor is unable to furnish warranty repair within 14 calendar days, the Contractor shall furnish a replacement Unit until the warranty repair is completed and the repaired Unit is returned to ODOT.

7.3.3 Warranty Computer Software: Contractor warrants that the engine diagnostic software does not infringe, nor ODOT’s use of such software infringe, any license, copyright, patent, trade secret, or other proprietary right of any third party, and Contractor shall provide indemnification to ODOT against any such infringement of third party rights.

7.3.4 Warranty Repairs: If any equipment, or component thereof, should prove defective in workmanship, design, or materials during the relevant warranty period, the manufacturer or Contractor shall promptly repair or replace the equipment or component (“Warranty Repair”) at no cost to the State, including parts, labor, and expenses of any kind (testing, rental of substitute equipment, transportation and shipping costs, insurance, meals, accommodations, travel time, mileage, etc., to job sites) ("Warranty Costs"). Contractor shall be responsible for completing all necessary Warranty Repair within 48 hours of notice from ODOT. Such notice may be made by phone, fax, e-mail or other means reasonably calculated to reach Contractor. All Warranty Repair work will conform to ODOT workmanship standards as identified in this Contract. Mutually agreeable alternative arrangements may be made prior to warranty work.

a. ODOT Repair Option: With Contractor's prior approval, not to be unreasonably withheld, ODOT may perform Warranty Repair. In such case, ODOT will hold the failed parts for the Contractor's inspection, together with sufficient documentation to verify the repairs. Contractor shall reimburse ODOT for all Warranty Costs incurred by ODOT in making such repairs.

b. Emergency Repairs: In an emergency, if the Contractor is unable to furnish a service representative and parts to the on-site location of defective equipment within the time frame required by ODOT under the circumstances, ODOT may elect to have emergency Warranty Repairs completed by other means and hold the failed parts for the Contractor's inspection, together with sufficient documentation to verify the repairs. The Contractor shall reimburse ODOT for all Warranty Costs incurred by ODOT in completing such emergency repairs. In the alternative, ODOT may rent substitute equipment from another source until Warranty Repairs can be completed, and obtain from Contractor reimbursement for all costs incurred.

7.3.5 Upgrades / Recalls: Contractor shall ensure that all of the most recent, applicable upgrades and recalls have been conducted on the equipment prior to unit delivery.

7.3.6 Long Term. Contractor shall provide long term maintenance, support and warranty for the Short Term Road Tube Classification Counters, as follows:

Year 1: $Included

Year 2: $_________________

Year 3: $_________________

Year 4: $_________________

7.4.1 In the event any Good, component, or accessory is recalled by a regulatory body or the manufacturer, Contractor shall immediately notify ODOT of the recall, and shall provide copies of the notice or other documentation ODOT may require. Contractor (at Contractor’s sole cost and expense) shall complete all necessary modifications or provide substitute non-defective equipment and remove recalled equipment, wherever located, within 14 calendar days of receipt of such notice.

7.4.2 In the event required modifications impair the utility of equipment for its intended purpose or level of function in the reasonable opinion of ODOT, ODOT may elect to cancel any order or terminate the Contract, in whole or in part, at no cost or penalty to the State based on such recall. Contractor shall (at Contractor’s sole cost and expense) promptly remove all recalled equipment, wherever located, and reimburse ODOT all amounts paid for recalled Goods, less the value of the use of such recalled equipment while in ODOT's possession.

7.4.3 As used in this Section, "cost" includes substitute equipment, labor, transportation and shipping costs, insurance, travel, meals, accommodations, etc.

8. CONTRACT EXHIBITS

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

· Exhibit A – Specifications

· Exhibit B - RESERVED

· Exhibit C – Insurance Requirements

· Exhibit D – Title VI Non-Discrimination Provisions

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 Contract and that:

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

(2) Contractor understands and agrees that various Exhibits to the Contract 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 Contract 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 Contract complied with, and agrees that during the term of this Contract 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 Contract or during the term of the Contract is a default for which ODOT may terminate the Contract, exercise of the right of setoff, or garnishment if applicable, and seek damages and other relief available under the terms of the Contract or under applicable law.

(5) 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 Contract, to maintain the policy and practice in force during the entire Contract term (see additional information and sample policy template at https://www.oregon.gov/DAS/Procurement/Pages/hb3060.aspx).

(6) 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).

(7) In the event that Contractor is a general partnership or joint venture, Contractor signature(s) on this Contract 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 Contract.

CONTRACTOR SIGNATURE(s)

__________________________________ Title: _______________________________Date: ___________

__________________________________ Title: _______________________________Date: ___________ (2nd signature if necessary for Contractor)

ODOT (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 mailto:OPOAdministration@odot.oregon.gov phone #503-986-2710.

EXHIBIT A – SPECIFICATIONS

Note: A detailed Specification for the Goods and Services required under the Contract will be inserted here prior to Contract execution.

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 Contract and shall maintain it in force and at its own expense throughout the duration of the Contract, and as required by any extended reporting period or tail coverage requirements, and all warranty periods that may apply. Contractor shall obtain the following insurance from insurance companies or entities that are authorized to transact the business of insurance and issue coverage in the State of Oregon and that are acceptable to ODOT. Coverage shall be primary and non-contributory with any other insurance and self-insurance with exception of Professional Liability and Workers’ compensation.