35850_Sample Contract.pdf

OREGON DEPARTMENT OF TRANSPORTATION

SAMPLE SERVICES CONTRACT

Contract Number: (ORBuys Number: ) Contract Title: Utility Locating Services for Region 2

Electrical

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:

ODOT Region 2 – Various Locations

Associated Invitation to Bid Number:

S-73000-00008548/35850

ODOT’s Contract Administrator:

William Kelso Region2 Electrical Manager 455 Airport Rd SE, Bldg. B Salem, OR. 97301 503-602-2897 William.j.kelso@odot.oregon.gov

Procurement Specialist:

Darren Schmidt 355 Capitol Street NE, MS #5-1 Salem, OR. 97301 503-910-9195 Darren.s.schmidt@odot.oregon.gov

Contractor’s Contract Administrator:

Name, address & phone

Alternate Contact:

Name, address & phone

TABLE OF CONTENTS

1. CONTRACT PARTIES and OVERVIEW

2. DEFINITIONS

3. CONTRACT TERM

4. DELIVERY LOCATION, SCHEDULE and PRICING

5. SPECIFICATIONS

6. STANDARD TERMS AND CONDITIONS

7. SPECIAL TERMS AND CONDITIONS

8. CONTRACT EXHIBITS

9. CONTRACTOR CERTIFICATIONS and SIGNATURES mailto:William.j.kelso@odot.oregon.gov mailto:Darren.s.schmidt@odot.oregon.gov

EXHIBIT A – STATEMENT OF WORK

EXHIBIT B – RESERVED

EXHIBIT C – INSURANCE REQUIREMENTS

EXHIBIT D - TITLE VI NON-DISCRIMINATION PROVISIONS

EXHIBIT E – RESERVED

EXHIBIT F – CERTIFIED SMALL BUSINESS ASPIRATIONAL TARGET PROVISIONS

ATTACHMENT 1 – OREGON DEPARTMENT OF TRANSPORTATION REGION 2 MAP

ATTACHMENT 2 – OREGON DEPARTMENT OF TRANSPORTATION MAINTENANCE DISTRICT

MAPS

ATTACHMENT 3 – ODOT ADM 05-08-01 ACCEPTABLE USE OF STATE INFORMATION

SYSTEMS AND INFORMATION ASSETS

2. DEFINITIONS

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

2.2 CONTRACT-SPECIFIC DEFINITIONS:

“Emergency” – Any condition constituting a clear and present danger to life, health or property, or a customer service outage.

“Excavation” – Any operation in which earth, rock or other material on or below the surface of the ground is moved or otherwise displaced by any means (except the tilling of soil for agricultural purposes, or railroad, or road and ditch maintenance that does not change the existing railroad grade, road grade and/or ditch flow line, or operations related to exploration and production of crude oil or natural gas, or both).

“Excavation Site” – The area where an Excavator intends to perform or actually performs Excavation.

“Excavator” – Any Person who engages directly in Excavation and/or the design of Excavation and who requests the location of Owner’s Underground Facilities.

“Excavator Notification” or “Excavation Notice” – Notification given to the Excavator that Underground Facilities are not present at the Excavation Site.

“Identified, But Un-locatable” – An Underground Facility, the presence of which is known, but cannot be field-marked with Reasonable Accuracy.

“Locate” or “Locating” – The process of detecting Underground Facilities through the use of inductive or conductive equipment and marking the surface of the ground to identify the existence and location of Underground Facilities.

“Locate Request” means either:

“Normal Locate Request” – A request to locate received at least forty-eight (48)hours, but no more than 15 business days, prior to the commencement of excavation, excluding Saturdays, Sundays and state and federal holidays.

Or

“Emergency Locate Request” – A request to locate which demands immediate action to prevent significant environmental damage or loss of life, health, property or essential public services, including the re-erecting of critically needed traffic control signs or devices.

“Marking” – Application of paint, flags, stakes, or other clearly identifiable material to clearly identify on a horizontal plane the location of ODOT’s Underground Facilities within the tolerances set forth in the OUNC Standards Manual.

“Normal Business Hours” – Defined as Monday through Friday between 6:00 a.m. and 4:30 p.m.

“Notifications Requesting Design Information” (AKA “Pre-survey”) – a Locate Request to OUNC for design and/or excavation purposes where excavation may or may not take place. Pre-surveys shall be located within 10 days of notification (OAR 952-001-0080).

“OUNC” – the Oregon Utility Notification Center.

“Reasonable Accuracy” means location, within twenty-four (24) inches of the outside lateral dimensions of both sides of an underground facility (also refer to the examples in OUNC Standards Manual page 22 and page 29).

“Underground Facility” – Any item buried or placed below the surface of the ground for use in connection with the storage or conveyance of water, sewage, electronic communications, cablevision, electric energy, petroleum products, gas, gaseous vapors, hazardous liquids or other substances, including, but not limited to, pipes, sewers, conduits, cables, valves, lines, wires, manholes, attachments and those parts of poles or anchors below ground.

3. CONTRACT TERM

3.1 EFFECTIVE DATE AND EXPIRATION. This Contract is effective on the date it has been signed by the Parties and all required approvals have been obtained. No work or compensation under the Contract is authorized until notice to proceed has been issued in writing (email acceptable) by ODOT.

Unless otherwise extended or terminated, this Contract shall expire 1 year after the effective or when all Contractor obligations under the Contract are completed in conformance with all applicable requirements and payment has been made in full, whichever is sooner.

3.2 EXTENSIONS. Contingent upon ODOT’s need, availability of approved funding, and Contractor’s performance, ODOT may extend the Contract for up to 4 additional years. The maximum term of this Contract shall be 5 years. ODOT will notify Contractor in writing of ODOT's intent to extend the Contract 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 Contract will expire according to its terms, unless earlier terminated. Notwithstanding the foregoing, ODOT reserves the right to extend the Contract 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

4.1 DELIVERY LOCATION: Various Locations in ODOT’s Region 2 (see attached ODOT Region 2 map).

4.2 PRICES: This is a labor-hours Contract. (Prices will be entered prior to execution)

• Contractor will be paid $_______per hour for work performed during Normal Business Hours.

• Contractor will be paid $_______per hour for work performed outside of Normal Business Hours, or as part of an Emergency Locate Request.

• Contractor will be paid a travel rate of $________ per hour; provided, however, that the first hour of travel time (roundtrip), per Locate Request, is free of charge.

• Contractor will be paid a travel rate of $_______ per hour for travel performed outside of Normal Business Hours or for Emergency Locate Requests provided, however, that the first hour of travel time (roundtrip), per Emergency Locate Request, is free of charge.

4.3 MOST FAVORABLE PRICES AND TERMS. Contractor represents that all prices, terms and benefits offered by Contractor are equal to or better than the equivalent prices, terms and benefits being offered by Contractor to any other state or local government unit or commercial customer.

4.4 PRICE ADJUSTMENTS. The initial pricing shall remain in effect for not less than the first 12 months of the Contract. 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 Services provided under the Contract. 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.

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 Services to be provided under the Contract.

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

6. STANDARD TERMS AND CONDITIONS

6.1 CONFLICT OF INTEREST (COI). Contractor shall comply with the ODOT Conflict of Interest Guidelines for Procurements and Contracts (“COI Guidelines”), as may be revised from time to time, available at: https://www.oregon.gov/ODOT/Business/Procurement/Pages/PSK.aspx. Contractor shall immediately submit to ODOT an accurate and complete Conflict of Interest Disclosure Form (available at the above website) if any disclosures are required per the ODOT COI Guidelines.

6.2 RESERVED

6.3 INSPECTIONS. Services furnished under this Contract shall be subject to inspection and test by ODOT at times and places determined by ODOT. If ODOT finds Services to be incomplete, not in compliance with Contract requirements, or deficient in any way, ODOT, at its sole discretion, may either reject the Services, require Contractor to correct any deficiencies without charge, or negotiate with Contractor to sell the Services to ODOT at a reduced price, whichever ODOT deems equitable under the circumstances. ODOT will provide written notice of any rejected 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 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 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 Services provided under this Contract. Contractor shall submit invoices to ODOT’s Contract Administrator listed on page 1 by the 10th of each month for the Services provided during the previous month. Contractor’s invoice must include:

• Contract number;

• 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 COMPENSATION

6.5.1 Payment terms. No Payment shall be made for Services provided before all necessary governmental approvals have been obtained, the Contract is fully executed, and a Notice-To- Proceed has been issued by ODOT. Payment to Contractor for Services provided will normally be made within 30 calendar days following the date the invoice (prepared in conformance with Contract requirements) is received. After 45 calendar days, Contractor may assess overdue account charges to ODOT on unpaid invoices only in accordance with ORS 293.462. Contractor https://www.oregon.gov/ODOT/Business/Procurement/Pages/PSK.aspx shall not be compensated by any other agency or department of the State for Goods or Services provided under the Contract.

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. Monthly progress payments for completed Services. ODOT will pay monthly progress payments upon approval of Contractor’s invoice, but only after ODOT has determined that Contractor has provided and ODOT has accepted all Services invoiced for the billing period.

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, 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.

6.6 REPRESENTATIONS AND WARRANTIES.

6.6.1 Contractor represents and further warrants that:

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.

https://www.oregon.gov/ODOT/Forms/2ODOT/7310781.pdf

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 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 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.

6.7 REMEDIES.

6.7.1 ODOT’s Remedies.

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 .

6.8 TERMINATION:

6.8.1 Mutual Consent: This Contract may be terminated at any time by mutual written consent of the Parties.

6.8.2 ODOT’s Right To Terminate For Convenience: ODOT may, at its sole discretion, terminate this Contract upon 30 calendar days prior written notice by ODOT to Contractor, .

6.8.3 ODOT’S Right To Terminate For Cause: In addition to any other rights and remedies ODOT may have under the Contract, ODOT may terminate this Contract immediately upon written notice by ODOT to Contractor, or at such later date as ODOT may establish in such notice, or upon expiration of the time period specified in such notice, upon occurrence of any of the following events:

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 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 Services under the Contract is prohibited or ODOT is prohibited from paying for such 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.

6.8.4 Contractor: Contractor may terminate the Contract, in whole or in part, upon 30 calendar days written notice to ODOT’s Contract Administrator, or at such later date as

Contractor may establish in such notice, upon ODOT's default of a material provision of the Contract.

6.8.5 In the event that ODOT terminates this Contract pursuant to section 6.8.3 and a court of competent jurisdiction later determines that Contractor was not in default, ODOT’s termination of this Contract shall be deemed to be a Termination for Convenience pursuant to section 6.8.2.

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 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 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 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, facsimile, 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. 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 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.

6.19 FOREIGN CONTRACTOR. If Contractor is not domiciled in or registered to do business in the State, Contractor shall promptly provide to the Oregon Department of Revenue and the Secretary of State Corporations Division all information required by those agencies relative to the Contract.

6.20 RECYCLED PRODUCTS. Contractor shall use recycled and recyclable products to the maximum extent economically feasible in the performance of all Contracts with ODOT.

6.21 TIME IS OF THE ESSENCE. Contractor agrees that time is of the essence for Contractor's performance obligations under the Contract.

6.22 FORCE MAJEURE. Neither ODOT nor Contractor shall be held responsible for delay or default caused by fire, riot, acts of God, war, or any other cause which is beyond the Party's reasonable control. Contractor shall, however, make all reasonable efforts to remove or eliminate such a cause of delay or default and shall, upon the cessation of the cause, diligently pursue performance of its obligations under the Contract. ODOT may terminate the Contract upon written notice after reasonably determining that such delay or default will likely prevent successful performance of the Contract.

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.

6.25 SUBCONTRACTS AND ASSIGNMENT; SUCCESSORS AND ASSIGNS

6.25.1 Written Consent. Contractor shall obtain ODOT's written consent prior to entering into any subcontracts for any of the Services required by the Contract, or in any manner assigning, selling or transferring any of its rights or interest under the Contract or delegate any of its duties or performance under the Contract.

6.25.2 Provisions for Subcontracts. Contractor shall include in any permitted subcontract a requirement to comply with the following Contract 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, 6.18 Access To Records, and, if applicable, Exhibit B – Prevailing Wage Rates. ODOT’s consent to any subcontract shall not relieve Contractor of any of its duties or obligations under this Contract. The provisions of this Contract shall be binding upon and shall inure to the benefit of the Parties hereto, and their respective successors and permitted assigns, if any.

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 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 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

7.1 CONTRACTOR PERSONNEL. In order to successfully perform the Services required under this Contract, Contractor shall provide an adequate amount of personnel and coverage in order to complete all Locate Requests in accordance with Exhibit A - Statement of Work. This includes the ability to provide additional support during periods of unusually high volume of Locate Requests;

periods of time where Contractor personnel are unexpectedly unavailable or incapable of performing Services; and any other similar situations where additional personnel are required in order to perform Services within the required timeframe.

Contractor shall assign primary personnel to each district. This change in personnel must be approved by ODOT’s Contract Administrator prior to the reassignment becoming effective.

7.2 USE OF STATE INFORMATION SYSTEMS AND INFORMATION ASSETS. During the term of this Contract, Contractor personnel will be granted access to ODOT information systems and assets to retrieve Locate Requests and perform the Services. In doing so, all Contractor personnel assigned work under this Contract are subject to Attachment 3 - ODOT policy #ADM 05-08-01. Contractor Personnel may not access ODOT information systems until they review and understand the policy and sign the Acceptable Use Agreement.

7.3 OUNC “ONE CALL” SYSTEM. ODOT will work with Contractor to arrange for the OUNC “One Call” system to send all Locate Requests directly to Contractor. ODOT shall pay the OUNC “One Call” system invoices for Locate Request transmittals.

7.4 DAMAGES FOR NON-COMPLETION. Contractor agrees that time is of the essence in its performance under this Contract. Contractor shall complete all required Services for a given task within the timeframes required under this Contract (as provided in Exhibit A – Statement of Work), by ODOT, and in accordance with the OUNC standards. Failure to perform Services within the timeframe required may result in damages to ODOT. Contractor shall be responsible for any and all damages resulting from its non-performance of the Services. Remedies for such damages are provided in Section 6.7 of this Contract.

7.5 FACILITY DAMAGE REVIEW PROCESS. Contractor and ODOT shall follow the review process for damaged Underground Facilities described in Exhibit A – Statement of Work. Both Parties will make good faith efforts in determining if such damage is the fault of Contractor’s performance. ODOT may exercise its discretion to hold Contractor harmless in the event that damage is caused to particularly “difficult-to-identify” (as determined solely by ODOT) Locates; provided, however, that in so doing ODOT does not waive any of its rights or otherwise modify any written expectations provided for the benefit of ODOT under this Contract.

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 – Statement of Work

• Exhibit B –RESERVED

• Exhibit C – Insurance Requirements

• Exhibit D – Title VI Non-Discrimination Provisions

• Exhibit E – RESERVED

• Exhibit F – Certified Small Business Aspirational Target Provisions

• Attachment 1 – ODOT Region 2 Map

• Attachment 2 – ODOT District 1, 3, 4 and 5 Maps

• Attachment 3 – ODOT Policy #ADM 05-08-01: Acceptable use of State Information Systems and

Information Assets.

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)

DOJ REVIEW: Reviewed by Janet Borth via e-mail dated 12/18/2023

ODOT (Procurement Authority)

Signature Print Name Date

ODOT (Expenditure Decision 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 OPOAdministration@odot.oregon.gov phone #503-986-2710.

https://www.oregon.gov/DAS/Procurement/Pages/hb3060.aspx https://www.irs.gov/pub/irs-pdf/p1779.pdf

EXHIBIT A – STATEMENT OF WORK

Part 1: General Information

A. Introduction

The purpose of this Contract is for Contractor to perform all services related to underground utility locates received through the One Call system.

B. Background

ODOT’s Region 2 covers most of the middle and northern valley, including the coast range. The exception is the Portland metro area, which is part of Region 1. ODOT Region 2’s electrical crew has worked with contractors in the past to perform locates. ODOT now has the Contractor perform all locates within Region 2, including requested work as described in Part 2 - Section A.11 below.

C. Scope

The scope of this Contract includes normal and emergency locate requests; performing project-specific locates at the direction of ODOT; third-party damage investigations; and record keeping duties, including updating ODOT’s utility maps. Contractor personnel will have access to ODOT information systems and assets to perform its duties under this Contract. Furthermore, Contractor will receive locate requests through the One Call System on Contractor information assets (such as personnel laptops). This ensures Contractor will have timely notice to perform all locates, including emergency locate requests.

D. Applicable Documents

The following documents include standards that apply to this Contract and are incorporated herein.

Contractor shall comply with the requirements provided in the following documents:

Oregon Utilities Coordinating Council, together with the Oregon Utility Notification Center, Standards Manual revised January 2019.

http://www.oucc.net/downloads/2019_StandardManual.pdf

Attachment 3 - ODOT Policy #ADM 05-08-01: Acceptable use of State Information Systems and Information Assets.

Attachment 1 -Oregon Department of Transportation Region 2 Map.

Part 2: Work Requirements

A. Technical Requirements

1 Contractor will receive and shall respond to all Excavation Notices directed to ODOT through the

“One Call” system in accordance with current State laws. Contractor shall provide such Markings and protection as may be required. Such Markings shall include painting, flagging or staking in http://www.oucc.net/downloads/2019_StandardManual.pdf accordance with the current State laws governing the protection of Underground Facilities and ODOT’s specifications.

2 All Underground Facilities must be electronically located by Contractor, unless doing so is not feasible.

3 Contractor shall provide and maintain, at all locations where work is being performed, adequate and suitable warning signs, all necessary suitable guards, and appropriate warning signals of any hazards in connection with the work, in order to prevent accidents and other safety hazards during the course of the work.

4 Contractor shall document the facilities that were located by drawing a simple diagram on the locate ticket and taking digital photos of the locate paint and/or flag marks. All photos taken must be date and time stamped. The digital photos will be transferred and/or saved to ODOT information systems in a mutually agreed upon manner.

5 Contractor shall retrieve and record Locate Requests from the “One Call” system by use of the Contractor’s personal device to be used remotely (cell phone, laptop, etc.).

6 Contractor shall complete the requirements for Pre-survey Locate Requests (Requests for Design Information) within ten business days after notification (refer to OUNC Standards Manual pg. 46, OAR 952-001-0080).

7 Contractor shall complete the requirements of a Normal Locate Request within two business days of receiving the Locate Request (refer to OUNC Standards Manual pg. 43, OAR 952-001-0070).

8 All Emergency notices shall be responded to within two hours of receipt by Contractor, unless otherwise required by law or regulation to be…