35953_Sample_PA Delineator Post.pdf

Form C010-G122723

OREGON DEPARTMENT OF TRANSPORTATION

SAMPLE GOODS PA

PA Number: (ORBuys Number: ) PA Title: Delineator Posts / Sight Posts (Galvanized Steel)

PA

1. PA PARTIES and OVERVIEW This PA is between the State of Oregon, acting by and through its Department of Transportation (“ODOT”) and ____________________, hereafter called “Contractor.” ODOT and Contractor together are also referred to as “Parties” and individually referred to as “Party.” The primary contacts for this PA are identified in the table below. Each Party may change 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:

ODOT Storeroom 455 Airport Rd SE, Bldg. K, Salem, OR 97301

Associated Invitation to Bid Number:

S-73000-00009670/35953

ODOT’s PA Administrator:

Lori Webb 455 Airport Rd SE, Bldg. K Salem, OR 97301 503-428-3076 Lori.webb@odot.oregon.gov

ODOT’s PA Alternate Contact:

Ken Steele 455 Airport Rd SE, Bldg. K Salem, Or 97301 503-986-2782 Kenneth.steele@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 PA Administrator:

Name, address & phone

Alternate Contact:

Name, address & phone mailto:Lori.webb@odot.oregon.gov mailto:Kenneth.steele@odot.oregon.gov mailto:Darren.s.schmidt@odot.oregon.gov

TABLE OF CONTENTS

1. PA PARTIES and OVERVIEW

2. DEFINITIONS

3. PA TERM

4. DELIVERY LOCATION, SCHEDULE and PRICING

5. SPECIFICATIONS

6. STANDARD TERMS AND CONDITIONS

7. RESERVED

8. PA EXHIBITS

9. CONTRACTOR CERTIFICATIONS and SIGNATURES

EXHIBIT A – SPECIFICATIONS

EXHIBIT B – STANDARD DRAWINGS

EXHIBIT C – INSURANCE REQUIREMENTS

EXHIBIT D - TITLE VI NON-DISCRIMINATION PROVISIONS

EXHIBIT E - RESERVED

EXHIBIT F – CERTIFIED SMALL BUSINESS ASPIRATIONAL TARGET PROVISIONS

EXHIBIT G – PURCHASE ORDERS & REPORTING REQUIREMENTS

2. DEFINITIONS

The following terms have the meaning provided in OAR 125-246-0110: “Business Day”, “PA”, “Contractor”, “Goods”, “OAR”, “ORS”, “Price Agreement” (“PA”), “Purchase Order” (“PO”), “Specification”, and “State”.

3. PA TERM

3.1 EFFECTIVE DATE AND EXPIRATION. This PA 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 PA is authorized until a PO has been issued (email acceptable) by ODOT. Unless otherwise extended or terminated, this PA shall expire 10 years from the date of execution, or when all Contractor obligations under the PA are completed in conformance with all applicable requirements and payment has been made in full, whichever is sooner.

4. DELIVERY LOCATION, SCHEDULE and PRICING

4.1 DELIVERY LOCATION: See table in Section 1

4.2 DELIVERY SCHEDULE AND PRICES. Delivery shall be completed within 45 calendar days following issuance of a PO from ODOT.

Early delivery is acceptable and encouraged. Any exceptions to this timeframe shall be at the discretion of ODOT. Contractor shall make an appointment with ODOT Storeroom, Monday – Friday between 7:30 am and 3:00 pm, for delivery date and time (See Section 1 - PA Parties and Overview).

Responsibility and liability for loss or damage shall remain with Contractor until final inspection and acceptance.

The contractor shall notify ODOT in writing (email acceptable), within five (5) business days of receipt of PO if delivery cannot be completed as required.

Pricing will be inserted here prior to Contract Execution.

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.

4.3.1 Should Contractor, during the term of the PA, enter into any contract, agreement or arrangement that provides lower prices, more favorable terms or greater benefits to any other such government unit or commercial customer, the PA will thereupon be deemed amended to provide the same price or prices, terms and benefits to ODOT. This provision applies to comparable services, and to purchase volumes by ODOT that are not less than the purchase volumes of the government unit or commercial customer that has received the lower prices, greater benefits or more favorable terms.

4.3.2 Donations of goods or services to charitable, nonprofit or government entities, if the donations are recognized as such and are deductible under the federal Internal Revenue Code, are not considered contracts, agreements, or arrangements with other government units or commercial customers that call for the application of this paragraph.

4.4 PRICE AND DELIVERY SCHEDULE ADJUSTMENTS.

4.4.1 Initial PA Pricing. Except as ODOT may otherwise approve under section 4.4.2, 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

4.4.2. Volatile Prices/Supply Disruptions. Notwithstanding the requirements of section 4.4.1, and if warranted by extreme market conditions, adjustments to increase or decrease prices or revise delivery schedule for any or all items may be requested in writing by either Party, subject to all of the following:

a. The initial pricing and delivery terms under the PA shall remain in effect for not less 6 months following PA execution. Following this initial period, Contractor may request price adjustments, delivery adjustments, or both, by submitting a written request to ODOT subject to the provisions of this section 4.4.2. No more than one price or delivery time increase request may be submitted during any 6 month period.

b. The volatility in price and availability is due to causes wholly beyond Contractor’s control.

https://www.bls.gov/regions/west/data/xg-tables/ro9xg01.htm

c. The volatility affects the marketplace or industry, not just the Contractor’s particular source of supply.

d. The marketplace volatility so affects the Contractor that continued performance of the PA without pricing or delivery schedule adjustment would result in a substantial loss.

e. No price or delivery schedule adjustments will be approved to compensate Contractor for inefficiency, errors or omissions in judgment, or for additional profit.

f. Appropriate documentation of market-based evidence to support price or delivery schedule adjustment(s) must be submitted with the requested adjustment. Contractor shall provide any additional documentation and evidence as may be requested by ODOT to support the request.

g. Periodically, throughout the term of the PA, ODOT may conduct market research, review pricing indexes, and use other resources to review and verify Contractor’s pricing or availability of items, Contractor requested increases, and Contractor provided information. ODOT may negotiate requested adjustments to price or delivery terms, including potential substitution of substantially equivalent items if available.

h. ODOT, at its sole discretion, may approve or deny the requested price increases, delivery adjustments, or substantially equal substitutions, in whole or in part, based on ODOT’s verification of the documentation submitted and available funding for the PA.

i. In the event market conditions result in a significant price decrease, ODOT shall be given full benefit of the price reduction for all orders on the effective date of the decrease and thereafter.

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 to be provided under the PA.

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

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 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 https://www.oregon.gov/ODOT/Business/Procurement/Pages/PSK.aspx 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. Contractor shall submit invoice(s) to ODOT’s Contract Administrator listed on page 1 after ODOT’s acceptance of Goods provided under this Contract. Contractor shall submit invoices by the 10th of each month for the Goods provided during the previous month. Invoices shall be submitted separately for each PO to the email address as indicated in the PO. Contractor’s invoice must include:

• PA number and PO number;

• The description and quantity of Goods ordered, the quantity of Goods delivered, the date

Goods were delivered, the price per unit, if applicable;

• The total amount due and the payment address.

6.5 COMPENSATION

6.5.1 Payment terms. No Payment shall be made for Goods provided before all necessary governmental approvals have been obtained, the PA is fully executed, and a PO has been issued by ODOT. Payment to Contractor for Goods provided will normally be made within 30 calendar days following the date the invoice (prepared in conformance with PA 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 shall not be compensated by any other agency or department of the State for Goods provided under the PA.

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.

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

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.

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 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.

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 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.

6.8 TERMINATION:

6.8.1 Mutual Consent: This PA or any PO entered into under the PA 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 PA or any PO entered into under the PA upon 30 calendar days prior written notice by ODOT to Contractor, except as otherwise provided for emergency response work in Exhibit G, section 1.3.

6.8.3 ODOT’S Right To Terminate For Cause: In addition to any other rights and remedies ODOT may have under the PA, ODOT may terminate this PA or any PO entered into under the PA 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 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.

6.8.4 Contractor: Contractor may terminate 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.

6.8.5 In the event that ODOT terminates this PA 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 PA shall be deemed to be a Termination for Convenience pursuant to section 6.8.2.

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.

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 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, facsimile, or mailing the same, postage prepaid, 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 e-mail during normal business hours on a Business Day shall be deemed received the Business Day it is sent. The recipient of any notice sent by e-mail shall reply by e-mail to confirm receipt of such notice. Any communication or notice made by personal delivery shall be deemed to be received when actually delivered. Any communication or notice properly addressed and mailed shall be deemed received 5 calendar days after the date of mailing. Any communication or notice delivered by facsimile shall be deemed received on the date of the notice of successful transmission generated by the transmitting machine.

6.16 SAFETY AND HEALTH REQUIREMENTS. Goods 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.

6.19 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 PA.

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 PA.

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 PA. ODOT may terminate the PA upon written notice after reasonably determining that such delay or default will likely prevent successful performance of the PA.

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.

6.25 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 Goods required by the PA, or in any manner assigning, selling or transferring any of its rights or interest under the PA or delegate any of its duties or performance under the PA.

6.25.2 Provisions for Subcontracts. Contractor shall include in any permitted subcontract a requirement to comply with the following PA 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 PA. The provisions of this PA 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 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.

7. RESERVED

8. PA EXHIBITS

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

• Exhibit A – Specifications

• Exhibit B – Standard Drawings

• Exhibit C – Insurance Requirements

• Exhibit D – Title VI Non-Discrimination Provisions

• Exhibit E – Reserved

• Exhibit F – Certified Small Business Aspirational Target Provisions

• Exhibit G – Purchase Order Provisions

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

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

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

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

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

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 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: ___________

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

DOJ REVIEW: (Reviewed by via e-mail dated )

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.irs.gov/pub/irs-pdf/p1779.pdf

EXHIBIT A – SPECIFICATIONS

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

EXHIBIT B – STANDARD DRAWINGS

Note: Exhibit B - Standard Drawings is not physically attached, but is incorporated by reference into this Contract with the same force and effect as though fully set forth herein, and is available for download from OregonBuys on the attachments tab.

EXHIBIT C – INSURANCE REQUIREMENTS

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

For purposes of this Exhibit C, the term “PA” is interchangeably used with “Work Order PA”, “WOC”, “Purchase Order” and “PO”. ODOT reserves the right to assess the risk for all WOCs or POs, as applicable, assigned under this PA to determine if additional insurance coverage is appropriate.

INSURANCE REQUIREMENT REVIEW:

Contractor agrees to periodic review of insurance requirements by ODOT under this agreement 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 subcontractor contracts.

All employers, including the Contractor and Subcontractor(s), if any, that are exempt under ORS 656.126(2) and subject to any other state’s Workers’ Compensation law, shall provide Workers’ Compensation Insurance coverage as required by applicable Workers’ Compensation laws. The coverage shall also include Employer’s Liability Insurance with limits not less than $500,000 each accident.

PROFESSIONAL LIABILITY

Required Not required

COMMERCIAL GENERAL LIABILITY

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 $1,000,000 $2,000,000 $5,000,000 per occurrence.

• Annual aggregate limits shall not be less than $2,000,000 $4,000,000 10,000,000.

AUTOMOBILE LIABILITY

Required Not required

EXCESS/UMBRELLA LIABILITY INSURANCE:

A combination of primary and Excess/Umbrella Liability 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 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 endorse as an 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

If Excess/Umbrella Liability insurance is used to meet the minimum insurance requirement, the Certificate of Insurance must include a list of all policies that fall under the Excess/Umbrella Liability insurance.

If ODOT has on file current certificates of insurance that meet all requirements of this Exhibit C, and ODOT provides such notification to Contractor, then submittal of certificates prior to execution of the PA will not be required. As proof of insurance, ODOT has the right to request copies of insurance policies, endorsements, self-insurance documents, and related insurance documents relating to the insurance requirements of this PA.

ENDORSEMENTS:

i. Additional Insured. The liability insurance coverages, except Professional Liability or Workers’

Compensation/Employer’s Liability, if included, required for performance of the PA must include an "additional insured" endorsement endorsing the “State of Oregon, the Oregon Transportation Commission and the Department of Transportation, and their respective officers, members, agents and employees.” Coverage shall be primary and non-contributory with any other insurance and self-insurance. Proof of additional insured status will include copies of endorsements or policy wording which must be submitted with the Certificate(s) of Insurance.

ii. Commercial General Liability must endorse the “State of Oregon, the Oregon Transportation Commission and the Department of Transportation, and their respective officers, members, agents and employees” as additional insureds with respect to liability arising out of work or completed operations performed by, or on behalf of, the Contractor including materials, parts, or equipment furnished in connection with such work or operations.