34635 WIM Equipment_RFP_A_SamplePA.docx

Form C010-G062818

SAMPLE GOODS and SERVICES PRICE AGREEMENT Price Agreement Number:

Price Agreement Title: Weigh-In-Motion Equipment

1. CONTRACT PARTIES and OVERVIEW This Price Agreement 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 Price Agreement are identified in the table below. Each Party may change their respective Price Agreement Administrator designee by promptly sending written notice (e-mail acceptable) to the other Party.

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

Project/Delivery Location:

Per Work Order Contract Associated Request for Proposal Number: 34635

ODOT’s Price Agreement Administrator (for Price Agreement Coordination):

Blaine Van Dyke 455 Airport Rd SE Bldg. K Salem, OR 97301 503-986-3612 Blaine.Vandyke@odot.state.or.us

ODOT’s Contract Administrator (For Purchase Order Contracts):

Jason Shaddix 3700 SE 92nd Ave Portland, OR 97266 503-378-2914 Jason.P.SHADDIX@odot.state.or.us

Contractor’s Price Agreement Administrator:

Name, address & phone

EXHIBIT H - PROGRAMMING SERVICES…………………………………………………………………...23

2. DEFINITIONS

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

In addition:

“AVC” means automated vehicle classification “AVI” means automated vehicle identification “CCAD” means Commerce and Compliance Application Development “CCD” means Commerce and Compliance Division “Equipment” has the same meaning as “Goods” “ITS” means Intelligent Transportation Systems “LPR” means License Plate Reader “MOB” means Maintenance & Operations Branch “PA” means Price Agreement “POE” means Point of Entry “TSS” means Tire Safety Screening “VMS” means Variable Message Sign “WIM” means Weigh-In-Motion system “POC” means Purchase Order Contract, which is the ordering instrument ODOT will use for obtaining Goods and Services under the Price Agreement.

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 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.

4.2 PRICES: The following prices will apply for the equipment and Services specified below.

If additional, related Equipment or Services are required that are not listed below, ODOT will negotiate prices for the additional, related Equipment or Services with Contractor.

Bid Item No.

Bid Item Reference

PRICE TABLE 1.1

Mandatory WIM Equipment:

*See Attachment H – Mandatory Technical Specifications for additional information/requirements on these items.

2.1

Vehicle Weigh-in-Motion Sensor Cable

FT

PRICE TABLE 1.2

Desired WIM Equipment:

*See Attachment I – Desired Technical Specifications for additional information on these items.

1.1

4.4 PRICE INCREASES. Contractor may request a unit price increase reflecting increased operating and raw material costs by submitting a written request to ODOT, including appropriate price documentation to justify the increase. Provided, however, the initial pricing shall remain in effect for not less than the first 12 months of the PA, no more than one unit price increase shall be allowed during any twelve-month period, and any approved price increase shall generally be limited to the most recent (at the time of the request) year-over-year increase in the Consumer Price Index, Pacific division.

5. SPECIFICATIONS

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

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

6.2 RESERVED

6.3 INSPECTIONS. Goods and Services furnished under this PA shall be subject to inspection and test by ODOT at times and places determined by ODOT. If ODOT finds Goods or Services, or both, to be incomplete, not in compliance with PA requirements, or deficient in any way, ODOT, at its sole discretion, may either reject the Goods or Services, or both, require Contractor to correct any deficiencies without charge, or negotiate with Contractor to sell the Goods or Services, or both to ODOT at a reduced price, whichever ODOT deems equitable under the circumstances. ODOT will provide written notice of any rejected Goods or Services, or both, 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 or Services, or both, and cancel the PA or any POC, 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 or Services required under the PA shall not be construed to operate as a waiver of any rights under the PA or of any cause of action arising out of the Contractor’s performance, and Contractor shall be and shall remain liable to ODOT in accordance with applicable law for all damages to ODOT caused by Contractor’s performance or failure of any of the Goods furnished under the PA.

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

· Invoice date and invoice number

· PA and POC numbers;

· Project name

· Listing of Goods provided and Services performed including unit prices

· 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 Agency on one or more contracts or price agreements, Agency prefers making payments via ACH direct deposit. While not required, if Contractor has not previously authorized ACH direct deposit and would prefer ACH to expedite transfer of payments after invoices are approved, Contractor must complete a Vendor ACH Authorization form and submit to Agency 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 and Services required and in conformance with PA and POC requirements.

6.5.4 Expenses. All Contractor travel and other expenses, if any, are included in the unit price amounts 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. Non-Discriminatory Wage Rates. 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 each POC issued under the PA and a failure to comply constitutes a breach that entitles Agency to terminate the PA or any POC 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 provide the Goods and perform the Services 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 and Goods delivered under the PA are free and clear of any liens and encumbrances, that Contractor has full legal title to the materials and Goods, and that no other person has any right, title or interest in the materials or Goods, 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.

6.7.2 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:

a. 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;

b. Terminate the PA and any POCs entered into under the PA, in whole or in part, immediately upon written notice to Consultant or at such later date as ODOT may establish in such notice; or

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

6.7.3 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

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 POC 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 POC entered into under the PA) as directed by ODOT.

6.8.4 Contractor’s Right to Terminate for Cause: Contractor may terminate the PA, or any POC entered into under the PA, in whole or in part, upon 30 calendar days’ written notice to ODOT’s PA Administrator, or at such later date as Contractor may establish in such notice, upon ODOT's default of a material provision of the PA.

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; 6.14 False Claims; 6.16 Safety and Health Requirements; 6.18 Access to Records; 6.7 Remedies; and all other remedy provisions included in the PA. Other terms and conditions that shall survive termination of this PA and any POC are those which expressly or by their nature survive termination, including without limitation this Section 6.9, and Sections (i) 2, Definitions, (ii) 6.1, Conflicts of Interest, (iii) 6.15, Notices, (iv) 6.24, Severability, (v) 6.26, Third Party Beneficiaries, (vi) 6.27 Counterparts; (vii) 6.28, Merger, Waiver, Amendments, (viii) Section 9, Certifications, (ix) Exhibit A, Specifications,

6.10 COMPLIANCE WITH APPLICABLE LAWS AND STANDARDS. Due to federal funding for this PA, 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 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. 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 PA and any POC, including but not limited to (1) the activities of Contractor or its officers, employees, subcontractors, or agents, and (2) the Goods and Services provided by Contractor. However, the Oregon Attorney General must give written authorization to Contractor or any legal counsel purporting to act in the name of, or represent the interests of the State, its officers, employees and agents prior to such action or representation. Further, the State, acting by and through its Department of Justice, may assume its own defense, including that of its officers, employees and agents, at any time when in the State's sole discretion it determines that (i) proposed counsel is prohibited from the particular representation contemplated; (ii) counsel is not adequately defending the interests of the State, its officers, employees and agents; (iii) important governmental interests are at stake; or (iv) the best interests of the State are served thereby. Contractor's obligation to pay for all costs and expenses shall include those incurred by the State in assuming its own defense and that of officers, employees, and agents under (i) and (ii) above.

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

6.15 NOTICES. Except as otherwise expressly provided in the PA, any notices between the Parties shall be given in writing by e-mail, by personal delivery or mailing the same, postage prepaid, to the PA Administrator or 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 will be deemed given when the recipient responds with written acknowledgement of receipt, which may be autogenerated. To be effective against ODOT, Contractor must confirm by telephone with the ODOT contract administrator that such email notice was received. 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 12 calendar days after the date of mailing.

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 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, as required by OAR 437-002-0005 (adopting by reference 29 CFR 1910). 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 POCs 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 POCs 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)). Consultant 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. Agency reserves the right at any time to require the submission of the hard copy originals of any documents.

7. SPECIAL TERMS AND CONDITIONS

8. CONTRACT EXHIBITS

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

· EXHIBIT A – Specifications

· EXHIBIT B – Prevailing Wage Rates

· EXHIBIT C – Insurance

· EXHIBIT D – Title VI Non-Discrimination Provisions

· EXHIBIT E – Disadvantaged Business Enterprise (DBE) Provisions

· EXHIBIT F – Certified Small Business Aspirational Target Provisions

· EXHIBIT G – Purchase Order Contracts

· EXHIBIT H – Programming Services

9. CONTRACTOR CERTIFICATIONS and SIGNATURES

A. Any individual 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) S/he is authorized to act on behalf of Contractor, s/he has authority and knowledge regarding Contractor’s payment of taxes, and to the best of her/his 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 a State tax imposed by ORS 320.005 to 320.150 and 403.200 to 403.250, ORS Chapters 118, 314, 316, 317, 318, 321, and 323; and local taxes administered by the Department of Revenue under ORS 305.620.

B. Any individual signing on behalf of Contractor hereby certifies they are 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 PA, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," 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 (HB 3060, 2017), 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).

(7) Contractor is an independent contractor as defined in ORS 670.600 and as described in IRS Publication 1779.

(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(s)

__________________________________ Title: _______________________________Date: _____________

DOJ REVIEW: (Approved by Ellen D. Taussig Conaty via e-mail April 12, 2021) Reviewed by Assistant Attorney General ODOT (Procurement Authority)

Signature Print Name Date ODOT (Expenditure Decision Authority)

Signature Print Name Date

EXHIBIT A – SPECIFICATIONS

Mandatory Specifications are described in Attachment H of the RFP.

EXHIBIT B – PREVAILING WAGE RATES

1. The Contractor and all subcontractors shall comply with the provisions of ORS 279C.800 through 279C.870, relative to Prevailing Wage Rates (PWR) and the required Public Works bond. Oregon’s Bureau of Labor and Industries (“BOLI”) views all projects under a PA as one project for purposes of determining applicability of prevailing wage requirements. Therefore, because the PA is expected to exceed the $50,000 exemption threshold over its term, prevailing wage requirements apply for every POC issued under the PA, regardless of the dollar amount of any specific POC.

2. Before starting Work the Contractor shall file with the Construction Contractors Board, and maintain in full force and effect, the separate Public Works bond required by ORS 279C.836 and OAR 839-025-0015, unless otherwise exempt under those provisions. The Contractor shall also include in every subcontract a provision requiring the Subcontractor to have a Public Works bond filed with the Construction Contractors Board before starting Work, unless otherwise exempt, and shall verify that the Subcontractor has filed a Public Works bond before permitting the Subcontractor to start Work.

3. All POCs issued under the PA are subject to the following Bureau of Labor and Industries (“BOLI”) wage rate requirements (regardless of the value of each individual POC) and the prevailing wage rates set forth in the booklet identified below, as amended, which while not physically attached, is incorporated herein by reference with the same force and effect as though fully set forth herein, and is available at the following website:

The “PREVAILING WAGE RATES for Public Works Contracts in Oregon” dated January 1, 2019.

These BOLI wage rates are available on line at:

https://www.oregon.gov/boli/WHD/PWR/Pages/pwr_state.aspx

If any federal funds are used in payment of the POC, federal Davis-Bacon Act requirements apply. If ODOT indicates in a POC that Davis-Bacon Act requirements apply, Contractor must comply with the following:

Because the project involves federal funds, this Price Agreement (and any applicable POCs) is subject to federal Davis-Bacon Act requirements in addition to BOLI requirements. The Contractor shall pay the higher of the BOLI wage rates and fringe benefits, as identified in the above BOLI wage rate booklet, or the federal wage rates and fringe benefits listed in the publication “General Wage Determinations Issued Under the Davis-Bacon and Related Acts” that is last published prior to the effective date of this Price Agreement. Bidders may obtain the applicable federal rates through the following U.S. Department of Labor link: https://www.wdol.gov/

5. Any fees required by ORS 279C.825(1) will be paid by ODOT to the Commissioner of the Bureau of Labor and Industries under the administrative rules of the Commissioner.

EXHIBIT C – INSURANCE REQUIREMENTS

Contractor shall obtain at Contractor’s expense the insurance specified in 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. 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. Contractor shall pay for all deductibles, self-insured retention and self-insurance, if any.

INSURANCE REQUIREMENT REVIEW

Contractor agrees to periodic review of insurance requirements by ODOT under this PA and to provide updated requirements as mutually agreed upon by Contractor and ODOT.

SUBCONTRACTORS:

Contractor shall require that all of its subcontractors carry insurance coverage that the Contractor deems appropriate based on the risks of the subcontracted work. Contractor shall obtain proof of the required insurance coverages, as applicable, from any subcontractor providing Services related to the PA.

WORKERS’ COMPENSATION & EMPLOYERS’ LIABILITY

Required by ODOT of Contractors with subject workers, as defined by ORS 656.027.

All employers, including Contractor, that employ subject workers, as defined in ORS 656.027, shall comply with ORS 656.017 and shall provide Workers' Compensation Insurance coverage for those workers, unless they meet the requirement for an exemption under ORS 656.126(2). The coverage shall include Employer’s Liability Insurance with limits not less than $500,000 each accident. Contractor shall require compliance with these requirements in each of its subcontracts.

PROFESSIONAL LIABILITY

|_| Required |X| Not required Professional liability insurance must cover damages caused by negligent acts, errors or omissions of Contractor and Contractor’s subcontractors, agents, officers or employees related to the professional Services to be provided under the Price Agreement.

COMMERCIAL GENERAL LIABILITY

|X| Required |_| Not required Commercial General Liability insurance must be issued on an “occurrence basis” covering “bodily injury” and “property damage” and shall include personal and advertising injury liability, products and completed operations, and contractual liability coverage.

· Coverage shall be written on an occurrence basis in an amount of not less than |_| $500,000 |X| $1,000,000 |_| $2,000,000 |_| $5,000,000 per occurrence.

· Annual aggregate limits shall not be less than |_| $1,000,000 |X| $2,000,000 |_| $4,000,000 |_| 10,000,000.

AUTOMOBILE LIABILITY

|X| Required |_| Not required Automobile Liability insurance covering Contractor’s business-related automobile use covering all owned, non-owned, or hired vehicles for “bodily injury” and ”property damage”, with a combined single limit of not less than |_| $500,000 |X| $1,000,000 |_| $2,000,000 |_| $5,000,000.

EXCESS/UMBRELLA INSURANCE:

A combination of primary and excess/umbrella insurance may be used to meet the required limits of insurance.

NOTICE OF CHANGE OR CANCELLATION:

The Contractor or its insurer must provide at least 30 days’ written notice to ODOT before cancellation of, material change to, potential exhaustion of aggregate limits of, or non-renewal of the required insurance coverage(s).

CERTIFICATE(S) AND PROOF OF INSURANCE:

Contractor shall provide to ODOT Certificate(s) of Insurance for all required insurance before delivering any Goods or performing any Services required under the PA. The Certificate(s) shall:

· List the “State of Oregon, the Oregon Transportation Commission and the Department of Transportation, and their respective officers, members, agents and employees” as a Certificate holder and as an endorsed Additional Insured.

· Specify that all liability insurance coverages shall be primary and non-contributory with any other insurance and self-insurance, with exception of Professional liability and Workers’ compensation

· Confirm that either an extended reporting period of at least 24 months is provided on all claims made policies or that tail coverage is provided.

· If excess/umbrella insurance is used to meet the minimum insurance…