00014879_Sample PA.docx

Form C010-G122723

OREGON DEPARTMENT OF TRANSPORTATION

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

PA Title: Solid Sodium Chloride for Winter Maintenance

1. PA PARTIES and OVERVIEW This PA is between the State of Oregon, acting by and through its Department of Transportation (“ODOT”) and ____________________, a xxxxx corporation, 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.

Project/Delivery Location:

Specified per order; see section 4 for delivery locations Associated Invitation to Bid Number: S-73000-00014879

ODOT’s PA Administrator:

Joanne Robinson ODOT Procurement Office Joanne.m.robinson@odot.oregon.gov 503-569-8015

ODOT Business Line Contact:

Patti Caswell Maintenance Environmental Program Manager Patti.caswell@odot.oregon.gov 503-913-9221

ODOT Contract Administrator:

The contract administrator for each Purchase Order is the purchaser named in the Purchase Order.

Contractor’s PA Administrator:

Name, address & phone

Alternate Contact: [If applicable, provide alternate contact info.] Name, address & phone

TABLE OF CONTENTS

2. DEFINITIONS

The following terms have the meaning provided in OAR 125-246-0110: “Business Day”, “PA”, “Contractor”, “Goods”, “OAR”, “ORS”, “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 7 additional years. The maximum term of this PA shall be 10 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. DELIVERY LOCATION, SCHEDULE and PRICING Contractor shall furnish all Goods, including all required equipment, labor, and transportation charges, in accordance with the PA terms, conditions, and Specifications, on the basis of the unit prices shown below.

4.1 DELIVERY LOCATION: Delivery locations and prices are listed below. The delivery location for each order will be specified in the order.

Contractor must be able to deliver Goods inside ODOT salt storage buildings as described in Section 7.7.12. The delivery locations included in this PA have salt storage buildings that are either an arch type/fabric covered or steel sided with a hard roof and concrete bunker inside. Each shed is generally 100 feet long, and 60 feet wide, with a vertical clearance of 27 feet or more at center span. There will be at least one door opening at one end of the structure with a minimum vertical clearance of 19 feet and a minimum width of 19 feet.

West side of I-5, Exit 66 (W1)

42.565528 – 123.374897

100 SE Wanapa Cascade Locks, OR 97014 42.671811, -121.880045

100 Ruckles Dr Myrtle Creek, OR 97457 43.063039, -123.345886

5443 Eagle Valley Rd Yoncalla, OR 97499 43.634397, -123.299294

1100 SE Goldfish Farm Rd

Holman 105th Avenue and Simpson Street Portland OR

9200 SE Lawnfield Rd Clackamas, OR 97015

8498 SW Hall Blvd Beaverton OR 97008 45.460138, -122.785856

I-5 MP/exit 199, east side of interstate

South side of I-84, Exit 168 45.832021, -119.622356

South side of I-84, Exit 193 45.746122, -119.111914

South side of I-84, Exit 216 45.642971, -118.692244

64462 Old Oregon Trail Rd, Meacham

3014 Island Ave, La Grande

Baker 19975 Hwy 86, Baker City

541 Stanton Blvd, Ontario

701 Bassett Street, Jordan Valley

US Route 95, MP 91.48, Basque 42.412215, -117.863163

I-84, Exit 268, 64100 Hot Lake Lane 45.246515, -118.011272

1840 S. Hwy 395 45.822147, -199.270595

7120 WA-14 (Lewis and Clark Hwy), Goldendale, WA 45.6974138,-120.8207971

1520 Hwy 19

3313 N. Bret Clodfelter Way

350 West Linden Way Heppner, OR 97836

4.2 ADDITIONAL DELIVERY LOCATIONS. Throughout the term of the PA, ODOT may request deliveries to locations not listed in this section within the specified service area. Pricing for locations not listed will be agreed upon between ODOT and Contractor using either the price for Goods delivered to the nearest location, or a negotiated price that is reasonably consistent with other PA pricing. When Contractor provides Goods at a negotiated price, Contractor and ODOT shall maintain documentation of the negotiation in the contract file. For added delivery locations that are expected to require Goods on an ongoing basis, ODOT will process a PA amendment adding the location to this Section 4. Added delivery location storage structures may vary in design, with non-standard overall dimensions and vertical clearance inside the structure. Prior to the first delivery for any new delivery location, Contractor shall coordinate with the ODOT employee that placed the order to ensure Contractor can deliver Goods as per the requirements outlined in Section 7.7.12.

4.4 PRICE ADJUSTMENTS.

The initial pricing shall remain in effect for not less than the first 12 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

5.1 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 to be provided under the PA.

5.2 All Goods provided under this PA must conform to the technical specifications for non- corrosion inhibited solid sodium chloride products listed on the most up to date Clear Roads Qualified Products List (QPL), Category 8B (Non Corrosion Inhibited Solid Sodium Chloride, Maximum 10% Insoluble Material, and Maximum 5.0% Moisture of ). The Specifications include Clear Roads general specifications and the Clear Roads chemical product category 8 and 8B for non-corrosion inhibited solid sodium chloride specifications. The Clear Roads QPL and Clear Roads specifications are available on the Clear Roads website at: http://www.clearroads.org

All Goods provided during the term of this PA must meet the specifications on the detailed product sheet for the named product on the QPL list as of the effective date of the 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. See Section 7 – Special Terms and Conditions.

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. 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 required and in conformance with PA and PO requirements.

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, gender identity, 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 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 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 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 under the PA or any PO entered into under the PA is prohibited or ODOT is prohibited from paying for such Goods 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. 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 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.

a. “INDEMNITY FOR INFRINGEMENT CLAIMS.” CONTRACTOR EXPRESSLY AGREES TO INDEMNIFY, DEFEND, SAVE AND HOLD HARMLESS THE STATE OF OREGON, THE OREGON TRANSPORTATION COMMISSION AND ITS MEMBERS, THE DEPARTMENT OF TRANSPORTATION AND THEIR AGENCIES, SUBDIVISIONS, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES FROM ANY AND ALL CLAIMS, SUITS, ACTIONS, LOSSES, LIABILITIES, DAMAGES, COSTS AND EXPENSES, INCLUDING ATTORNEYS FEES, ARISING OUT OF OR RELATING TO ANY CLAIMS THAT CONTRACTOR’S SERVICES, THE WORK PRODUCT OR ANY OTHER TANGIBLE OR INTANGIBLE ITEMS DELIVERED TO AGENCY BY CONTRACTOR THAT MAY BE THE SUBJECT OF PROTECTION UNDER ANY STATE OR FEDERAL INTELLECTUAL PROPERTY LAW OR DOCTRINE, OR AGENCY’S USE THEREOF, INFRINGES ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK, TRADE DRESS, MASK WORK, UTILITY DESIGN, OR OTHER PROPRIETARY RIGHT OF ANY THIRD PARTY; PROVIDED, THAT STATE SHALL PROVIDE CONTRACTOR WITH PROMPT WRITTEN NOTICE OF ANY INFRINGEMENT CLAIM. PROVIDED, HOWEVER, CONTRACTOR SHALL NOT BE OBLIGATED TO INDEMNIFY, DEFEND, SAVE AND HOLD HARMLESS THE STATE AND AGENCY UNDER THIS SECTION 6.13(a), BASED SOLELY ON CONTRACTOR’S COMPLIANCE WITH AGENCY SPECIFICATIONS OR REQUIREMENTS INCLUDING, BUT NOT LIMITED TO, THE REQUIRED USE OF TANGIBLE OR INTANGIBLE ITEMS PROVIDED BY AGENCY.

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 PA, Contractor certifies the truthfulness, completeness, and accuracy of any statement or claim it has made, it makes, or it may make or cause to be made that pertains to the PA or the Goods 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 by email, personal delivery, or pre-paid US Mail, to the 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 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 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.

6.31 OWNERSHIP OF WORK PRODUCT.

a. Definitions. The following terms have the meanings set forth below:

(i) “Contractor Intellectual Property” means any intellectual property owned by Contractor and developed independently from the Contract.

(ii) “Third Party Intellectual Property” means any intellectual property owned by parties other than Agency or Contractor.

(iii) “Work Product” means every invention, discovery, work of authorship, trade secret or other tangible or intangible item, and all intellectual property rights therein, that Contractor is required to deliver to Agency pursuant to the Contract.

b. Work Product. All Work Product created by Contractor pursuant to the Contract, including derivative works and compilations, and whether or not such Work Product is considered a “work made for hire,” shall be the exclusive property of Agency. Agency and Contractor agree that Work Product that constitutes original works of authorship (the “Original Work Product”) is “work made for hire” of which Agency is the author within the meaning of the United States Copyright Act. If for any reason Original Work Product created pursuant to the Contract is not “work made for hire,” Contractor hereby irrevocably assigns to Agency any and all of its rights, title, and interest in all Original Work Product created pursuant to the Contract, whether arising from copyright, patent, trademark, trade secret, or any other state or federal intellectual property law or doctrine. Upon Agency’s reasonable request, Contractor shall execute such further documents and instruments necessary to fully vest such rights in Original Work Product in Agency. Contractor forever waives any and all rights relating to Original Work Product created pursuant to the Contract, including without limitation, any and all rights arising under 17 USC §106A or any other rights of identification of authorship or rights of approval, restriction or limitation on use or subsequent modifications. However, see Sections 6.30.c., 6.30.d., 6.30.e. and 6.30.f. immediately below, for provisions applicable to Contractor Intellectual Property, Third Party Intellectual Property, Contractor Intellectual Property derivative works and Third Party Intellectual Property derivative works.

c. Contractor Intellectual Property. In the event that any Work Product is Contractor Intellectual Property (Contractor Intellectual Property that is applicable to the Services being performed by Contractor under the Contract or included in Work Product deliverable to Agency under the Contract), or in the event any Contractor Intellectual Property is needed by Agency to reasonably enjoy and use any Work Product, Contractor hereby grants to Agency an irrevocable, non-exclusive, non-transferable, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display Contractor Intellectual Property, including the right of Agency to authorize contractors, consultants and others to do the same on Agency’s behalf. At the request of Contractor, Agency shall take reasonable steps to protect the confidentiality and proprietary interests of Contractor in any Contractor Intellectual Property licensed under this Section, within the limits of the Oregon Public Records Law (ORS 192.410 through 192.505) and the Oregon Uniform Trade Secrets Act (ORS 646.461 to 646.475).

d. Third Party Intellectual Property. In the event that Work Product is Third Party Intellectual Property (Third Party Intellectual Property that is applicable to the Services being performed by Contractor under the Contract or included in Work Product deliverable to Agency under the Contract), or in the event any Third Party Intellectual Property is needed by Agency to reasonably enjoy and use any Work Product, Contractor shall secure on Agency’s behalf and in the name of Agency, an irrevocable, non-exclusive, non-transferable, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the Third Party Intellectual Property, including the right of Agency to authorize contractors, consultants and others to do the same on Agency’s behalf.

e. Contractor Intellectual Property-Derivative Work. In the event that Work Product created by Contractor under the Contract is a derivative work based on Contractor Intellectual Property, or is a compilation that includes Contractor Intellectual Property, Contractor hereby grants to Agency an irrevocable, non-exclusive, non-transferable, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the pre-existing elements of Contractor Intellectual Property employed in the Work Product, including the right of Agency to authorize others to do the same on Agency’s behalf.

f. Third Party Intellectual Property-Derivative Work. In the event that Work Product created by Contractor under the Contract is a derivative work based on Third Party Intellectual Property, or is a compilation that includes Third Party Intellectual Property, Contractor shall secure on Agency’s behalf and in the name of Agency an irrevocable, non-exclusive, non-transferable, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the pre-existing elements of the Third Party Intellectual Property employed in the Work Product, including the right to authorize others to do the same on Agency’s behalf.

g Limited Agency Indemnity. To the extent permitted by the Oregon Constitution, Article XI, Section 7, and by the Oregon Tort Claims Act, ORS 30.260 through 30.400, Agency shall indemnify and hold Contractor harmless from liability arising out of Agency’s re-use or alteration of the Work Product.

7. SPECIAL TERMS AND CONDITIONS

7.1 CONTRACTOR TRAINING AVAILABILITY: Contractor shall provide training to ODOT personnel regarding proper usage of the Goods as reasonably requested by ODOT at dates, times, and locations mutually agreed upon by ODOT and the Contractor. If training is requested, training sessions will be four hours each, and will be paid at the price Contractor provided in its Bid, or as negotiated. ODOT typically holds winter maintenance training sessions in September, October and November of each year.

7.1.1 Requested training sessions may include, but are not limited to, the following subjects:

· Concepts of anti-icing and de-icing using solid salt (sodium chloride) and other deicing products

· Application rates for different weather and pavement conditions

· When to apply product, when not to apply product or when to use alternative treatments

· Comparison of product effectiveness between solid and liquid products

· Stockpile treatments

· Storage issues

· Receiving shipments

· Sampling procedures

· Understanding the eutectic temperature chart and how it is used in regards to chemical deicers

· Overview of the Specifications

· Realistic expectation of the Goods

7.1.2 Contractor shall use only training materials approved in advance by ODOT for each session. Contractor shall allow ODOT to reproduce and use all training materials and handouts furnished to training participants. (See Section 6.30 for additional information regarding ownership of work product.)

7.2 NON-INTERFERENCE WITH WORK SITE: Contractor shall perform its work activities in such a manner that it will not interfere with ODOT’s work activities at the facility where delivery is made. Contractor shall not block access to the facility and shall maintain a safe passage for ODOT activities.

7.3 PRODUCT REJECTION AND PRICE ADJUSTMENTS: ODOT may elect to reject Goods that do not comply with the Specifications, or accept the non-complying Goods and pay the Contractor an adjusted price (see Section 7.7.6 regarding price reductions for non-complying Goods.)

7.4 REJECTED GOODS: If ODOT rejects the delivered Goods based on visual inspection or laboratory test results, Contractor shall remove and replace any Goods that are rejected with Goods that meet the Specifications of Section 5, at no additional cost to ODOT, including handling and transportation charges. Removal includes the removal of any material contaminated by the rejected Goods. ODOT will establish the amount of material contaminated. The contractor shall promptly take custody of and dispose of the rejected material within 3 calendar days. If the contractor fails to remove the material within 3 calendar days, ODOT may dispose of the material and deduct all costs associated with the removal and disposal from any future payments to the Contractor.

7.5 MATERIAL INSPECTION AND TESTING; PRICE ADJUSTMENT: ODOT may, at its discretion and at no charge to Contractor, test Goods for compliance with the Specifications described in Section 5 and compliance with the most up to date Clear Roads Snow and Ice Control Chemical Product Program, Guidance Document for Material Qualified Products List, Specifications, Test Methods, and Product Purchasing Clear Roads for Category 8 and 8B (Non-Corrosion Inhibited Solid Sodium Chloride, Maximum 10% Insoluble Material and Maximum 5.0% Moisture). For any test of Goods for compliance, ODOT will use Clear Roads test protocols for Category 8 and 8B products. ODOT will visually inspect all goods at the point of delivery to ensure they are free from any foreign materials. Residue from truck beds such as grain, coal, gravel, or other materials not germane to sodium chloride may be cause for rejection. Any residue materials used in the production of the product or any oversized materials or excessive clumping found in the delivered Goods may be cause for rejection.

a. Visual Inspection. At the time of delivery, if foreign materials or excessive clumping are found in the load, ODOT has the option to reject or accept the load. Loads that are accepted will be assessed a 15% penalty. ODOT shall document each load by writing “FOREIGN MATERIALS” on the bill of lading, and take a picture of the of the bill placed on the on the load. The pictures must be attached to any invoice where the penalty is assessed.

b. Failure of Goods to meet specifications. Based on laboratory testing, delivered Goods that fail to meet any of the Clear Roads specifications and requirements, with the exception of requirements concerning moisture content, are…