Sample PA.docx

Form C010-G122920

SAMPLE GOODS and SERVICES CONTRACT PA Number:

PA Title: Region 1 On-Call Tree and Brush Cutting Services

GTS Contract/PA Contract No.: ________

1. CONTRACT 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 C-ontract Administrator designee by promptly sending written notice (e-mail acceptable) to the other Party with a copy to ODOT’s Procurement Specialist for this PA.

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

Project/Delivery Location:

Per Work Order Associated Invitation to Bid Number: S-73000-00000243

ODOT’s PA Administrator:

Ivory Williams ODOT Procurement Office, Region 1 123 NW Flanders Street Portland, OR 97209 503-986-2711Ivory.williams@odot.state.or.us

Contractor’s C_ontract Administrator:

Name, address & phone

Alternate Contact: Name, address & phone

2. DEFINITIONS

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

“PA” is an abbreviation for Price Agreement.

“PA Series” refers collectively to all PAs awarded under ITB 33141 and ITB 34022 which have not expired or been terminated, together with additional PAs awarded through subsequent solicitations as described in Section 1.

“ODOT Project Manager” means the ODOT representative named in a Work Order and assigned to act as ODOT’s contract administrator for that Work Order.

3.2 EXTENSIONS. Contingent upon ODOT’s need, availability of approved funding, and Contractor’s performance, ODOT may extend the PA for up to 4 additional years. The maximum term of this PA shall be 8 years. ODOT will notify Contractor in writing of ODOT's intent to extend the PA at least 30 calendar days prior to the expiration of the then-current term. If Contractor consents to the extension, ODOT will process an amendment to extend the term. If Contractor does not consent, the PA will expire according to its terms, unless earlier terminated. Notwithstanding the foregoing, ODOT reserves the right to extend the PA for up to two calendar months beyond any term without Contractor’s consent. Consecutive two-month extensions under this section are not allowed.

4.2 DELIVERY SCHEDULE AND PRICES

The delivery schedule for each Work Order will be specified in the Work Order (stated as a completion date).

OTHER BID ITEMS

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

5. SPECIFICATIONS

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

5.1 WORK TO BE PERFORMED: Work to be performed consists of trimming the sides and tops of trees and brush encroaching along the roadway and/or shoulder and removing trees and stumps entirely in some cases. Work may also include removing dead or damaged tree limbs and trunks to eliminate hazardous conditions, and mulching and chipping debris in place. Contractor shall perform all work in accordance with recognized and approved current arboriculture methods with emphasis on tree and brush health and symmetry, and with minimum damage to trees and brush that are intended to remain. Work may be required in close proximity to energized power lines.

5.2 MIGRATORY BIRD TREATY ACT: All work must conform, as applicable, to ODOT Directive ENV 01-01 regarding the Migratory Bird Treaty Act. Directive ENV 01-01 is available at: http://www.oregon.gov/ODOT/Engineering/Doc_TechnicalGuidance/ENV01_01.pdf

5.3 DISPOSAL: Contractor shall dispose of all vegetation and debris produced by the operations described above in the manner indicated in the Work Order. When chipping is used to dispose of trimmings, the ODOT Project Manager may approve the spreading of chips along certain sections of highway right of way. All other debris must be removed before payment is made. No burning or burying of debris on highway right of way will be allowed. All disposal must be performed in accordance with state, federal, and local environmental and waste disposal laws and regulations. ODOT will reimburse Contractor for fees charged at disposal sites so long as Contractor includes the charges on its invoice and provides a copy of weight slips or other documentation from the disposal site.

5.4 EQUIPMENT:

5.4.1 Contractor shall furnish all equipment in good operating condition and operated by properly-trained and qualified personnel. Equipment must be free of mud, debris, vegetation, oil leaks, and excessive lubricant accumulation at the start of work at each location. If Contractor arrives with equipment that does not meet these standards, ODOT may cancel the Work Order and no mobilization will be paid.

5.4.2 The operation of equipment that will cause damage to the roadway pavement or that will cause rutting to turf areas beyond the nominal will not be allowed for use unless prior written approval is granted by the ODOT Project Manager. In the event that damage does occur to either of these specified areas, Contractor shall make the necessary repairs as directed by ODOT, at Contractor’s expense.

5.4.3 Contractor’s vehicles must be equipped with at least one high intensity rotating or strobe light plainly visible from the front and the rear. The lens shall be clear amber glass. The bulb shall be a minimum of 1,000,000 candlepower. The light ray shall sweep at a rate of 60 flashes per minute over a 360-degree area. This signal system shall be in operation continuously while the vehicle is on any part of the travel lanes, ramps, or shoulders.

5.4.4 Contractor shall not park equipment on the right of way without the prior approval of the ODOT Project Manager. All staging areas in the right of way must be approved by the ODOT Project Manager.

5.5 LINE CLEARANCE TREE TRIMMING: Work performed under the PA can at times be in close proximity to energized power lines. It is Contractor’s sole responsibility to obtain all utility clearances required by law, regulation, ordinance, or rule. Equipment and personnel must meet the requirements in OSHA standards 1910.269(r) and 1926.550 in order to trim trees within ten feet of a power line that is energized by more than 750 volts.

5.6 CERTIFIED ARBORIST: For some projects, ODOT may require that one of Contractor’s employees on site be a Certified Arborist (certified through the International Society of Arboriculture). ODOT will indicate this requirement in the Work Order. There will be no additional payment when a Certified Arborist is required, but Contractor’s capacity to provide a Certified Arborist may be a factor in determining assignment of Work Orders.

5.7 RESPONSE TIME/HOURS OF WORK: Unless otherwise specified in the Work Order, Contractor is expected to start work no later than 5 calendar days after issuance of a Work Order, or no later than 24 hours after issuance of an emergency Work Order. Contractor shall confirm that it can meet the required response time upon receipt of a Work Order. If Contractor cannot meet the required response time, ODOT will cancel the Work Order and select another Contractor. Repeated, documented failure by a Contractor under PA to meet the required response time may result in Contractor not being considered for assignment of future Work Orders. Work hours will generally be 10 hours a day, 6 days per week for non-emergency work, and 7 days per week for emergency work. Specific work hours for each project will be determined by the ODOT Project Manager who will consider weather, daylight hours, traffic conditions, and other relevant factors.

5.8 SUPERVISION BY CONTRACTOR: At all times during the life of a Work Order job, Contractor shall designate one permanent employee who shall have the authority and capability for overall responsibility for the job, and who shall be personally available at the work site within 24 hours’ notice. Such employee shall be fully authorized to conduct all business with subcontractors, negotiate and execute all supplemental agreements, and execute the orders or directions of the ODOT Project Manager. At all times when work is actually being performed, Contractor shall have present at the work site one competent individual who is authorized to act in a supervisory capacity over all work on the project, including subcontracted work. The individual who has been so authorized must be experienced in the type of work being performed and be fully capable of: managing, directing, and coordinating the work; reading and thoroughly understanding the contract requirements; and receiving and carrying out directions from the ODOT Project Manager or his/her designee. Such individual must be an employee of Contractor unless otherwise approved by the ODOT Project Manager. Contractor may, at its option, designate one employee to meet the requirements of both positions; however, when the designated employee is absent from the work site, an authorized individual qualified to act in a supervisory capacity on the project must be present.

5.9 TRAFFIC CONTROL: If traffic control is required for a project, ODOT may provide the traffic control services or may request these services from Contractor at the unit prices listed for Traffic Control Equipment and Materials and Flaggers. If Contractor provides traffic control services, it shall do so in accordance with the latest edition of the ODOT Temporary Traffic Control Handbook for Operations of Three Days or Less: or develop a traffic control plan for operations lasting longer than three days in the same location. Law enforcement officers will be hired separately by ODOT if needed.

Any lane closure restrictions will be listed in the project Work Order.

Contractor shall ensure that temporary pedestrian routes are provided through or around any project work zone. Any such temporary pedestrian route shall include directional and informational signs, comply with ODOT standards, and include accessibility features equal to or better than the features present in the existing pedestrian facility. Contractor shall also ensure that advance notice of any temporary pedestrian route is provided in acessible format to the public, people with disabilities, and disability organizations at least 10 days prior to the start of construction.

Contractor shall contact the ODOT Region 1 Traffic Management Operations Center (TMOC) at 503-283-5859 when closing a shoulder and/or lane to begin a work shift and when the shoulder and/or lane are reopened.when a work shift is completed.

5.10 HOURLY RATES: Payment for hourly-rate pay items will be made based on actual operating hours. At the completion of work each day, Contractor and the ODOT Project Manager will come to an agreement on the number of hours of work performed that are to be submitted for payment. Operating times under one hour will be rounded up to the next one-half hour. Contractor will also include a description of the daily work completed with the invoice for payment.

5.11 PAY ITEMS: Payment will be made to the Contractor upon Contractor's submission of invoices for the actual quantities of pay items performed according to the PA terms. Descriptions and specifications for each pay item are listed below.

1. Emergency Callout Premium: This pay item is a one-time, lump sum, per-Work Order job payment for projects specified as “emergency” and therefore requiring a 24-hour response time. (See Section 5.7) Only one Emergency Callout Premium will be paid per Work Order job regardless of the number of crews/equipment required for the job.

2. Mobilization: Mobilization is a lump sum payment for Contractor’s cost to transport all required equipment and personnel to the jobsite and transport the equipment and personnel back to Contractor’s facility upon completion of the Work Order job. Mobilization will be paid for each crew/equipment pay item included in the Work Order. If more than one jobsite is included in the Work Order job, Mobilization will include transporting all required equipment and personnel to the first jobsite and transporting the equipment and personnel back to Contractor’s facility after completion of work at the last jobsite.

3. Standard Traffic Control Equipment and Materials: This pay item includes all materials and equipment necessary to effectively provide traffic control for a typical Stationary Lane Closure with Flagging - Two Flagger Operation, as per Diagram 320 on page 85 of the December 2011 edition of ODOT Oregon Temporary Traffic Control Handbook. This includes, but is not necessarily limited to, cones, signs, radios, stop/slow paddles, and vehicles used to transport materials and flaggers. Payment will be made at a daily rate. If additional traffic control equipment or materials are required, ODOT and Contractor must negotiate prices for such additional items, which must be listed in the Work Order or written amendment to the Work Order (which may be accomplished through email). ODOT will not be responsible for additional charges not documented in the Work Order or through written amendment.

4. Flagger: This pay item will be paid at an hourly rate per person to the nearest half hour for working time on the job site between the hours of 7am and 9pm including discussion of the site with the ODOT representative, installing and uninstalling traffic control devices, and performing flagging duties.

5. Equipment/Crew Pay Items:

(Only those pay items listed below for which Contractor submitted a Bid price are applicable.)

a. Climber and Two Ground Workers: This pay item includes a crew capable of removing trees and limbs as designated by ODOT from the edge of the roadway and adjacent to the right of way. This includes trees that have difficult access, for example hiking in several hundred yards from the roadside to a tree located on a steep hillside. Contractor shall provide a truck equipped with a chip box and a towed chipper that is capable of chipping 12-inch diameter limbs. Price includes all chain saws, ropes, cables, and other equipment needed for the operation. Labor consists of at least one climber and two ground workers. Payment will be made at an hourly rate plus the Climber and Two Grounds Workers Mobilization.

b. Bucket Truck and Crew: This pay item includes a bucket truck capable of reaching a minimum of 50 feet above the roadway and removing tree limbs as low as 6 feet above the ground and as far away as 30 feet from the edge of the roadway. Truck must also be equipped with a chip box and a towed chipper that is capable of chipping 12-inch diameter limbs. Price includes all chain saws, ropes, cables, and other equipment needed for the operation. Labor consists of one truck driver, one operator, and one ground worker. Payment will be made at an hourly rate plus the Bucket Truck and Crew Mobilization.

c. Feller Buncher and Operator: This pay item includes a feller buncher equipped with a saw blade mounted on a telescopic boom with a minimum reach of 40 feet. The vehicle must be equipped with rubber tires or tracks that will not damage the road surface. All cuts must be smooth saw cuts. Labor consists of one operator. Payment will be made at an hourly rate plus the Feller Buncher and Operator Mobilization.

d. Mulcher Mower and Crew: This pay item includes a mulcher mower designed and built to cut and mulch brush, debris, and trees into mulch that can be left in place as long as it is not blocking drainage areas. The mulcher mower must have the capability to direct mulch downward, thus making it safe for roadside use. Road shoulder must be firm and approximately 8 feet wide to operate safely. Labor consists of one operator and one grounds worker. Payment will be made at an hourly rate plus the Mulcher Mower and Crew Mobilization.

e. Log Grapple and Operator: This pay item includes a log grapple used for moving debris and logs and loading into trucks. The vehicle must be equipped with a grapple having a safe lift capacity of 3,000 lbs. Labor consists of one operator. Payment will be made at an hourly rate plus the Log Grapple with Operator Mobilization.

f. Brush Chipper and Crew: This pay item includes a whole-tree chipper having at least the capacity to chip up to 12” diameter logs and a standard two-ton truck with 10-cubic-yard chip box. Labor consists of one truck driver, one operator, and one grounds worker. Payment will be made at an hourly rate plus the Brush Chipper and Crew Mobilization.

g. Log Loader and Operator: This pay item includes a heavy-duty truck and an articulating boom used to load and transport logs from a job site. Labor to operate the above equipment consists of one operator. Payment will be made at an hourly rate plus the Log Loader and Operator Mobilization.

6. Per Diem: In the event that the work identified on a Work Order will take longer than one work shift AND the location is more than 100 miles away from the Contractor’s facility, the Contractor will be paid at the Price Agreement unit price, per person, per day, for Per Diem. Per Diem will be paid starting the second day of work. Per Diem will not be paid on days when work does not occur.

7. Additional items not listed: Payment for any services not specifically listed in the PA will only be made if:

a. the services are determined to be within the scope of the PA; and

b. the services are documented in a Work Order or written amendment to a Work Order (which may be accomplished through email).

Payment for additional items not listed will be based on negotiated fixed prices or reimbursement of actual costs with any agreed-upon markup, or any other method agreed upon between the Parties and documented in the Work

6.2 RESERVED

6.3 INSPECTIONS. Services furnished under this PA 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 PA 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 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 Services required under the PA shall not be construed to operate as a waiver of any rights under the PA or of any cause of action arising out of the Contractor’s performance, and Contractor shall be and shall remain liable to ODOT in accordance with applicable law for all damages to ODOT caused by Contractor’s performance or failure of any of the Goods furnished under the PA.

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

· PA number

· Invoice date and invoice number

· Project name

· Work Order date (listed at the top of the Work Order)

· ODOT Project Manager and District

· Disposal site weight slips or other documentation if applicable (see Section 5.3)

· Listing of pay items provided/performed including unit prices and total Work Order amount

· Remittance address

6.5.2 Direct Deposit via Automated Clearing House (“ACH”). For Contractors that receive ongoing monthly payments from Agency on one or more contracts or price agreements, Agency prefers making payments via ACH direct deposit. While not required, if Contractor has not previously authorized ACH direct deposit and would prefer ACH to expedite transfer of payments after invoices are approved, Contractor must complete a Vendor ACH Authorization form and submit to Agency per the instructions on the form.

6.5.3 Basis of Payment. Full completion. ODOT will pay all amounts due upon approval of Contractor’s invoice, but only after ODOT has determined that Contractor has provided and ODOT has accepted all Services required and in conformance with PA and Work Order requirements..

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

6.5.5 Retainage. ODOT may initiate, at any time, withholding of payment equal to 5% of the amount of each invoice submitted. ODOT will make final payment of any balance due to Contractor promptly upon verification by ODOT of completion and acceptance of all deliverables and will pay interest as required on retainage.

6.5.6 Pay Equity Compliance.

a. Discriminatory Wage Rates Prohibited. As required by ORS 279B.235, Contractor must comply with ORS 652.220 and shall not unlawfully discriminate against any of Contractor’s employees in the payment of wages or other compensation for work of comparable character on the basis of an employee’s membership in a protected class. “Protected class” means a group of persons distinguished by race, color, religion, sex, sexual orientation, 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 Agency to terminate this PA for cause.

b. Employee Discussions Regarding Compensation. As required by ORS 279B.235, Contractor may not prohibit any of its employees from discussing the employee’s rate of wage, salary, benefits or other compensation with another employee or another person and may not retaliate against an employee who discusses the employee’s rate of wage, salary, benefits or other compensation with another employee or another person.

a. Contractor has the power and authority to enter into and perform the PA and that such PA and any POs entered into under the Price Agreement, 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 Price Agreement.

c. Contractor is duly licensed to provide the Services 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 Services to be provided under the PA.

d. Contractor shall have all manufacturer warranties covering any Goods (and component parts, where applicable) supplied under the PA transferred to ODOT at time of delivery at no charge. Contractor shall be responsible for completing and processing any warranty registration paperwork required by manufacturer. If a conflict or inconsistency exists between a manufacturer’s warranty and Contractor’s warranty, the warranty that provides the greatest benefit and protection to State shall prevail.

e. Any materials 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.

6.7.2 In the event Contractor has liquidated and delinquent debt owed to the State of Oregon or any department or agency of the State, Agency may:

a. Undertake collection by administrative offset, or garnishment if applicable, of all monies due for Services and Deliverables to recover liquidated and delinquent debt owed to the State of Oregon or any department or agency of the State. Offsets or garnishment may be initiated after the Contractor has been given notice if required by law;

b. Terminate the PA and any Work Orders entered into under the Price Agreement, in whole or in part, immediately upon written notice to Contractor or at such later date as Agency may establish in such notice; or

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

6.7.3 These remedies are cumulative to the extent the remedies are not inconsistent, and Agency may pursue any remedy or remedies singly, collectively, successively, or in any order whatsoever, to the extent the remedies are not inconsistent.

6.7.4 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 (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.

6.7.5 ATTORNEYS' FEES: With the exception of defense costs and expenses pursuant to Section 6.13, neither party shall be entitled to recover attorney's fees, court and investigative costs, or any other fees or expenses associated with pursuing a remedy for damages arising out of or relating to the Contract.

a. ODOT fails to receive appropriations or other expenditure authority sufficient to allow ODOT, in the exercise of its reasonable administrative discretion, to continue to make payments for the Services to be provided under the PA;

b. Federal or State laws, regulations, or guidelines are modified or interpreted in such a way that either the purchase of Services under the PA or any PO entered into under the Price Agreement 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 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 Price Agreement) 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 C-ontract 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 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 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 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 Services provided by Contractor. However, the Oregon Attorney General must give written authorization to Contractor or any legal counsel purporting to act in the name of, or represent the interests of the State, its officers, employees and agents prior to such action or representation. Further, the State, acting by and through its Department of Justice, may assume its own defense, including that of its officers, employees and agents, at any time when in the State's sole discretion it determines that (i) proposed counsel is prohibited from the particular representation contemplated; (ii) counsel is not adequately defending the interests of the State, its officers, employees and agents; (iii) important governmental interests are at stake; or (iv) the best interests of the State are served thereby. Contractor's obligation to pay for all costs and expenses shall include those incurred by the State in assuming its own defense and that of officers, employees, and agents under (i) and (ii) above.

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

6.15 NOTICES. Except as otherwise expressly provided in the PA, any notices between the Parties shall be given in writing by e-mail, by personal delivery, facsimile, or mailing the same, postage prepaid, to the C_ontract 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 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 keep SDS on file at the location where products that include classified chemicals are used or stored by Contractor.. In addition, Contractor must label, tag or mark such products with the following information:

6.17.1 Identity of the hazardous chemical(s) which must include the product identifier used on the SDS;

6.17.2 Appropriate signal word, hazard statement(s), pictogram(s), and precautionary statement(s) specified in applicable regulations for each hazard class and associated hazard category; and

6.17.3 Name and address of the chemical manufacturer, importer or other responsible entity.

6.18 ACCESS TO RECORDS. Contractor shall maintain all fiscal and other records relevant to Contractor's performance under the PA (collectively, "Records") in accordance with generally-accepted accounting principles. ODOT, its duly authorized representatives, and the federal government shall have access to Records for purposes of examination and copying. Contractor shall retain and keep accessible all Records for a minimum of 6 years, or such longer period as may be required by applicable law following expiration or termination of the PA, or until the conclusion of any audit, controversy or litigation arising out of or related to the PA, whichever date is later.

6.23 CONTRACTOR PERSONNEL. Contractor shall exercise due care to choose and manage its personnel and ensure that permitted subcontractors choose and manage their personnel so that only suitably responsible, professionally competent, and disciplined representatives will be operating in any ODOT area, many of which have sensitive and critical activities.

6.24 SEVERABILITY. If any provision of the PA is declared by a court of competent jurisdiction to be illegal, the validity of the remaining terms and provisions shall not be affected, and the rights and obligations of the Parties shall be construed and enforced as if the PA did not contain the particular provision held to be invalid.

6.26 THIRD PARTY BENEFICIARIES. The State, the Oregon Transportation Commission and ODOT are intended third-party beneficiaries of the PA with express independent authority to enforce the terms and conditions of the PA. Otherwise, there are no third-party beneficiaries of the PA.

6.27 COUNTERPARTS. The PA may be executed in several counterparts, all of which when taken together shall constitute one agreement binding on all Parties, notwithstanding that all Parties are not signatories to the same counterpart. Each copy of the PA so executed shall constitute an original.

6.28 MERGER; AMENDMENT; WAIVER; INTERPRETATION. The PA and any POs entered into under the Price Agreement 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 Price Agreement. This PA may be amended, within the scope of this procurement, to the extent permitted by applicable statutes and administrative rules. No waiver, consent, modification or change of terms of the PA (collectively, "Amendment") shall bind either Party unless it is in writing and signed by both Parties and all necessary approvals have been obtained. Amendments shall be effective only in the specific instance and for the specific purpose given. The failure of ODOT to enforce any provision of the PA shall not constitute a waiver by ODOT of that or any other provision. The characterization of provisions of the PA as material provisions or the failure to comply with certain provisions as a material breach of the PA shall in no way be construed to mean that any other provisions of the PA are not material or that failure to comply with any other provisions is not a material breach of the PA.

6.29 CERTIFIED SMALL BUSINESSES. Respecting certification as a disadvantaged business enterprise, minority-owned business, woman-owned business, business that a service-disabled veteran owns or an emerging small business under ORS 200.055, as and when applicable, the Contractor shall maintain the certifications, and require in its subcontracts that subcontractors maintain the certifications required by ORS 279A.107 as a material condition of the PA. If the Contractor or subcontractor was awarded the PA or subcontract, as applicable, in the course of ODOT carrying out an affirmative action goal, policy or program under ORS 279A.100, and Contractor or subcontractor fails to maintain the required certification, ODOT may terminate the PA, require the Contractor to terminate the subcontractor, or exercise any of remedies reserved for breach of the PA (except as provided under ORS 279A.107(2)(c)). 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. Agency reserves the right at any time to require the submission of the hard copy originals of any documents.

7. RESERVED

8. CONTRACT EXHIBITS

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

· Exhibit A – RESERVED

· Exhibit B –Prevailing Wage Rates

· Exhibit C – Insurance

· Exhibit D – Title VI Non-Discrimination Provisions

· Exhibit E – RESERVED

· Exhibit F – RESERVED

· Exhibit G – Work Orders

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,…