Sample Price Agreement~4.docx

Form C010-G122723

Do not submit this document with your application. This is a sample of the price agreement (on-call contract) that you and ODOT will sign if you meet all requirements and submit sufficient insurance certificate(s). When you sign your application, you will be agreeing to the terms and conditions in this document – please make sure you are familiar with them before applying. Exhibit C describes the required insurance coverages. Instructions for submitting the insurance certificate(s) will be emailed to you once your application is approved.

OREGON DEPARTMENT OF TRANSPORTATION

SAMPLE GOODS PRICE AGREEMENT (“PA”)

PA Number:

PA Title: Maintenance Asphalt

1. 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 PA administrator designee by promptly sending written notice via email to the other Party’s PA administrator.

Non-Exclusive Agreement. This PA is one of a series of PAs established for the convenience of ODOT. Exhibit G describes the method ODOT will use to select from suppliers (contractors) within the PA series. ODOT makes no guarantee of any minimum or maximum purchases under this PA or the PA series. ODOT reserves the right to contract for the purchase of similar services outside of this PA and the PA series in accordance with applicable law.

ODOT’s PA Administrator:

Joanne Robinson ODOT Procurement Office, Region 2 Joanne.m.robinson@odot.oregon.gov 503-569-8015

ODOT’s Contract Administrator:

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

Contractor’s PA Administrator:

Name, address & phone

Contractor Contact for Placement of Orders:

TABLE OF CONTENTS

“RESERVED” indicates a section or exhibit that is not used for this Price Agreement.

2. DEFINITIONS

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

Listed price means the price provided by Contractor and listed in its Price Agreement before escalation or de-escalation is applied.

“MACMP” means Monthly Asphalt Cement Material Price and is an index price established by ODOT each month and published on its website: https://www.oregon.gov/odot/business/pages/asphalt-fuel-price.aspx. The MACMP will be used to determine monthly price adjustments for escalation and de-escalation of asphalt cement material market prices.

“PA Series” refers collectively to all active PAs awarded under solicitation number S-73000-000xxxx or through subsequent solicitations.

“PO” means Purchase Order as defined in OAR 125-246-0110.

3. PA TERM. 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 by ODOT. Unless otherwise terminated, this PA shall expire 12/31/2034. Any POs still in effect when the PA expires or is terminated (unless the PO is also terminated) remain in effect until all requirements under the PO are fulfilled.

4. LISTED PRICES, PRICE ADJUSTMENTS, AND DELIVERY LOCATION and SCHEDULE.

4.1 LISTED PRICES. The following listed prices, as may be updated through amendments over time, are the prices that will be used to determine the final invoice price for each product after any escalation/de-escalation adjustments are applied (see Section 4.2):

Plant Name:

Plant Location:

March 15 – September 30

WINTER PRICE PER TON

October 1 – March 14

Level 2, 3/4 inch Dense ACP

Level 2, 1/2 inch Dense ACP

Level 2, 3/8 inch Dense ACP

Level 3, 3/4 inch Dense ACP

Level 3, 1/2 inch Dense ACP

Level 3, 3/8 inch Dense ACP

PG 64-22 Asphalt Binder

PG 64-28 Asphalt Binder

Emulsified Asphalt Tack Coat

Minimum order restrictions or charges?

Start up fees or winter closures?

· If the MACMP is within ± 5% of the Base, there will be no adjustment.

· If the MACMP is more than 105% of the Base, then:

Adjustment factor = (MACMP) - (1.05 x Base)

· If the MACMP is less than 95% of the Base, then:

Adjustment factor = (MACMP) - (0.95 x Base)

4.2.3 Adjusted price (invoice price) for ACP. The adjusted price for ACP will be determined by multiplying the adjustment factor by 6% (.06) and adding it to the listed price.

4.2.4 Adjusted price (invoice price) for Asphalt Binder and Emulsified Tack Coat. The adjusted price for asphalt binder and emulsified asphalt tack coat products will be determined by adding the adjustment factor to the listed price.

4.4 DELIVERIES: ODOT anticipates that it will pick up most Goods purchased under the PA from Contractor’s plant(s). However, if ODOT requests Goods to be delivered for a particular order, and if Contractor can accommodate the request, Contractor shall provide a delivery price for the order which will be included as a factor in ODOT’s determination of best value (See Exhibit G.)

4.5 PICKUP/DELIVERY SCHEDULE. Required delivery or pickup schedule will be indicated in each PO.

5. TECHNICAL 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.

5.1 CERTIFIED WEIGHT: Contractor must have certified weight scales to determine the weight of each load. Contractor shall provide a certified weight slip to ODOT’s driver for each load.

5.2 NON-CONFORMANCE WITH SPECIFICATIONS: ODOT reserves, through its engineer or designee for the project, the right to refuse delivery of material that does not meet gradation specifications, is not properly mixed, or for other reasons is unsatisfactory. Any material considered unacceptable by the engineer or designee will be returned to Contractor's plant, and ODOT shall not be charged for the load or hauling costs. Failure of Contractor to provide Goods as outlined in these specifications could result in ODOT acquiring and hauling materials from another vendor and may result in cancellation of Contractor’s Price Agreement or Purchase Orders entered into thereunder, in addition to other remedies available to ODOT.

5.3 STANDARD SPECIFICATIONS: The 2024 edition of the Oregon Standard Specifications for Construction (“Standard Specifications”) includes detailed technical specifications in Sections 00200 and beyond that apply to order placed under this PA. Some sections of the technical specifications are identified and modified below. Sections of the technical specifications not identified remain applicable according to their original terms.

Sections in Part 00100 of the Standard Specifications (General Conditions) are not applicable to the Contract except:

· the conventions and definitions in Section 00110 apply when needed for context or clarification

· if an applicable technical specification section references a section from Part 00100, that section from Part 00100 applies for purposes of supporting and giving full effect to the specification that referenced it.

The Standard Specifications are available online at:

http://www.oregon.gov/ODOT/Business/Pages/Standard_Specifications.aspx

5.3.1 SECTION 00744 – ASPHALT CONCRETE PAVEMENT

Comply with Section 00744 of the Standard Specifications supplemented and/or modified as follows:

00744.00 Scope - Replace this subsection with the following:

“00744.00 Scope - This work consists of manufacturing Asphalt Concrete Pavement (ACP) and supplying asphalt binder in accordance with these specifications.”

00744.11(a) Asphalt Cement – Add the following to the end of this subsection:

“When the paving location is west of the Cascade Mountain Range, provide PG 64-22 asphalt cement. When the paving location is east of the Cascade Mountain Range, provide PG 64-28 asphalt cement.”

00744.13 Job Mix Formula (JMF) Requirements - Replace the first paragraph with the following:

“If requested by the Engineer, provide documentation that the JMF meets the criteria set forth below. The JMF shall have been developed according to the ODOT Contractor Mix Design Guidelines for Asphalt Concrete or verified according to the ODOT Mix Design Verification process.”

00744.16 – Delete this subsection.

00744.17 Acceptance – Replace this subsection with the following:

“00744.17 Acceptance – The mixture will be accepted by visual inspection by ODOT. If the mixture is considered suspect, the Agency may verify that the mixture is within tolerances and limits of 00744.14 and take corrective action when testing shows that ACP is not within tolerances and limits of 00744.14.”

00744.23, 00744.24, 00744.40 – Delete these subsections.

00744.41 Mixing Temperature - Replace the table with the following:

00744.42 - Delete this subsection.

00744.43 – Delete bullets (b) and (c).

00744.44, 00744.45, 00744.49 - Delete these subsections.

00744.60 Correction of Defects – Replace this subsection with the following:

“00744.60 Correction of Defects – Correct all defects in Materials, as directed, by removing and replacing any HMAC that:

· Is mixed with dirt.

· Shows visually too much or too little asphalt.

· Contains boils, slicks or oversized materials within the mixture.”

00744.70, and 00744.75 - Delete these subsections.

00744.80 Measurement - Replace this subsection with the following:

“00744.80 Measurement - The quantities of ACP and Asphalt Binder will be measured by the Ton. No deductions and no separate measurement will be made for asphalt cement, mineral filler, lime, anti-strip, or any other additive used in the mixture.“

00744.90 Payment - Replace this subsection with the following:

“00744.90 Payment – The accepted quantities of ACP purchased, whether or not recycled materials are used, will be paid for at the Contract unit price per ton, for the following items:

Pay Item Unit of Measurement

(a) Level ____, ______ ACP Mixture…………………………………………… Ton

(b) ____ Asphalt Binder……………………………………...................... Ton In item (a) the following will be inserted in the blanks:

· The level of ACP (2 or 3) will be inserted in the first blank.

· The type(s) of ACP, (3/4 inch Dense, 1/2 inch Dense, or 3/8 inch Dense) will be inserted in the second blank.”

In item (b) the performance graded asphalt binder (PG 64-22 or PG 64-28) will be inserted in the first blank.

No separate or additional payment will be made for asphalt cement, mineral filler, lime, anti-stripping material, or other additives.”

5.3.2 SECTION 00730 – EMULSIFIED ASPHALT TACK COAT:

Comply with Section 00730 of the Standard Specifications supplemented and/or modified as follows:

00730.00 Scope - Replace this subsection with the following:

“00730.00 Scope - This work consists of furnishing emulsified asphalt as specified.”

00730.11 Emulsified Asphalt - Replace the fifth paragraph of this subsection with the following:

“Asphalt tack coat will be sampled and tested at the discretion and expense of ODOT.”

00730.22, 00730.40, 00730.41, 00730.42, 00730.44 - Delete these subsections.

00730.80 Measurement - Replace this subsection with the following:

“00730.80 Measurement - The quantity of emulsified asphalt cement used as tack coat will be measured by the ton.”

00730.90 Payment - Replace the first paragraph of this subsection with the following:

“00730.90 Payment - The accepted quantities of asphalt cement used as tack coat will be paid for at the Contract unit price per ton for the item “Emulsified Asphalt Tack Coat”.”

5.4 Vehicle Clearance: Contractor must accommodate ODOT trucks with a minimum vertical clearance of 12 feet. Contractor operators at plants with a vertical clearance of less than 12 feet shall provide assistance to assure safety while backing under the plant and retention of their appropriate turn to load.

5.5 Release Agents in ODOT Vehicles: Contractor's plant/facility shall be designed such that release agent(s) (diesel NOT allowed) can be sprayed into ODOT truck beds without having to climb onto the vehicle. Contractor shall submit for approval to the ODOT District Manager (DM) any manufacturer specifications for the release agent(s) used. Only those release agents approved by the DM shall be authorized for use on ODOT trucks. All operations shall meet OSHA and other federal, state and local guidelines and safety regulations.

5.6 Delivered Temperatures: When ACP is picked up at the plant site and loaded into ODOT vehicles, the material must be at a temperature acceptable to ODOT and between 320 and 350 degrees Fahrenheit.

When Contractor is required to deliver ACP to a job site, the material must be at a temperature acceptable to ODOT and between 285 and 325 degrees Fahrenheit.

ACP will be rejected before placing if one or more of the following is found:

· Below specified placing temperature limit (when Contractor delivers)

· Slumping or separating

· Solidifying or crusting

· Absorbing moisture

· Non-spec gradation

· Grayback (improper coating)

· Burnt

Rejected loads will be disposed of at the Contractor's expense.

6.2 DELIVERY TERMS. If delivery is included in a PO, all Goods shall be provided F.O.B. destination with all transportation and handling charges paid by Contractor, unless otherwise agreed to in writing by ODOT. Responsibility and liability for loss or damage shall remain with Contractor until final inspection and acceptance.

6.3 INSPECTIONS. Goods furnished under this PA shall be subject to inspection and test by ODOT at times and places determined by ODOT. ODOT may request to have a pre-delivery inspection at Contractor's location to ensure specification compliance PRIOR TO DELIVERY. If ODOT finds Goods to be incomplete, not in compliance with PA requirements, or deficient in any way, ODOT, at its sole discretion, may either reject the Goods , require Contractor to correct any deficiencies without charge, or negotiate with Contractor to sell the Goods to ODOT at a reduced price, whichever ODOT deems equitable under the circumstances. ODOT will provide written notice of any rejected Goods that, at a minimum, itemizes the apparent deficiencies. If Contractor is unable or refuses to cure any deficiencies within a time deemed reasonable by ODOT, ODOT may reject the Goods and cancel the PA, the PO, or both, in whole or in part. Nothing in this paragraph shall in any way affect or limit ODOT’s rights as Buyer under the Uniform Commercial Code including but not limited to the rights and remedies relating to rejection under ORS 72.6020 and revocation of acceptance under ORS 72.6080. ODOT’s review, approval or acceptance of, or payment for, the Goods required under the PA shall not be construed to operate as a waiver of any rights under the PA or of any cause of action arising out of the Contractor’s performance, and Contractor shall be and shall remain liable to ODOT in accordance with applicable law for all damages to ODOT caused by Contractor’s performance or failure of any of the Goods furnished under the PA.

6.4 INVOICES. Contractor shall submit invoices by the 10th of each month for the Goods provided during the previous month. Contractor shall submit a separate invoice for each PO, which may include multiple pickups/deliveries, to the purchaser as indicated in the PO. Contractor’s invoice must include:

· PO number (if provided by ODOT)

· Contractor’s PA number (PO-73000-000xxxxx);

· Date of each pickup or delivery included in the PO

· Pay items and quantities purchased

· Price per unit and total price, including any price adjustments for escalation/de-escalation.*

· Name and address of person who placed the order

*Contractor shall not bill separately for escalation/de-escalation charges

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 ordered and in conformance with PA and PO requirements.

6.5.4 Reserved

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

6.5.6 Pay Equity Compliance.

a. Discriminatory Wage Rates Prohibited. As required by ORS 279B.235, Contractor must comply with ORS 652.220 and shall not unlawfully discriminate against any of Contractor’s employees in the payment of wages or other compensation for work of comparable character on the basis of an employee’s membership in a protected class. “Protected class” means a group of persons distinguished by race, color, religion, sex, sexual orientation, gender identity, national origin, marital status, veteran status, disability, or age. Contractor’s compliance with this section constitutes a material element of this PA and a failure to comply constitutes a breach that entitles ODOT to terminate this PA for cause.

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

a. Contractor has the power and authority to enter into and perform the PA and that such PA and any POs entered into under the PA, when executed and delivered, shall be valid and binding obligations of Contractor enforceable in accordance with their terms.

b. All express and implied warranties that are applicable to goods under ORS Chapter 72 apply to any Goods delivered under this PA. Any materials provided under the PA shall be free from defects in materials and manufacture and shall meet the requirements of the Specifications/statement of work under the PA and any POs entered into under the PA.

c. Contractor is duly licensed to provide the Goods specified in the PA, and if there is no licensing requirement, Contractor is duly qualified and competent to perform in accordance with the highest standards prevalent in the industry or business most closely involved in providing the Goods to be provided under the PA.

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

e. Any materials provided under the PA are free and clear of any liens and encumbrances, that Contractor has full legal title to the materials, and that no other person has any right, title or interest in the materials which shall be superior.

f. Contractor has no undisclosed liquidated and delinquent debt owed to the State or any department or agency of the State.

6.6.2 Warranties Cumulative. The warranties set forth in this section are in addition to, and not in lieu of, any other warranties provided in the PA. All warranties provided in the PA shall be cumulative and shall be interpreted broadly to give ODOT the greatest warranty protection available.

a. In addition to the remedies afforded elsewhere herein, ODOT shall be entitled to recover any and all damages suffered as a result of Contractor's breach of the PA or any PO entered into under the PA, including but not limited to direct, indirect, incidental and consequential damages. ODOT may also be entitled to any equitable remedies to which it may show itself entitled.

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

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

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

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

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

6.7.2 Contractor's Remedies. In the event ODOT terminates the PA or any PO entered into under the PA under either Section 6.8.2 or 6.8.3, or in the event ODOT is in default of a material provision of the PA or any PO entered into under the PA and whether or not Contractor elects to exercise its right to terminate the PA under Section 6.8.4, Contractor's sole remedy shall be (a) a claim against ODOT for the unpaid price for any Goods delivered and accepted by ODOT, (b) with respect to Services compensable on an hourly basis, a claim against ODOT for unpaid invoices, hours worked but not yet billed, and authorized expenses for Services completed and accepted by ODOT, or (c) with respect to deliverable-based Services, a claim against ODOT for the sum designated for completing the deliverable multiplied by the percentage of work completed and accepted by ODOT, less previous amounts paid and any claim(s) which State has against Contractor. If previous amounts paid to Contractor exceed the amount due to Contractor under this section, Contractor shall pay any excess to ODOT upon written demand. In no circumstance shall Contractor be entitled to lost profits for work not performed due to termination.

6.7.3 Attorney’s Fees. With the exception of defense costs and expenses pursuant to Section 6.13, neither Party shall be entitled to recover attorney's fees, court and investigative costs, or any other fees or expenses associated with pursuing a remedy for damages arising out of or relating to the PA or any PO entered into under the PA.

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

b. Federal or State laws, regulations, or guidelines are modified or interpreted in such a way that either the purchase of Goods under the PA or any PO entered into under the PA is prohibited or ODOT is prohibited from paying for such Goods from the planned funding source;

c. Contractor has liquidated and delinquent debt owed to the State of Oregon or any department or agency of the State; or

d. Contractor commits any material breach or default of any covenant, warranty, obligation, certification or agreement under the PA and such breach is not cured within 14 calendar days after ODOT's notice to Contractor, or such longer period as ODOT may specify in the notice. Pursuant to this section, upon receipt of written notice of termination, Contractor shall stop performance under the PA (or any PO entered into under the PA) as directed by ODOT.

6.9 SURVIVAL. Termination of the PA shall not extinguish or prejudice ODOT's right to enforce the following provisions: 6.6 Representations and Warranties; 6.10 Compliance with Applicable Laws and Standards, 6.11 Governing Law; 6.12 Venue, Consent to Jurisdiction; 6.13 Indemnification; 6.18 Access to Records; 6.7 Remedies; and all other remedy provisions included in the PA.

6.10 COMPLIANCE WITH APPLICABLE LAWS AND STANDARDS. Contractor shall comply with all federal, State, and local laws, regulations, executive orders and ordinances applicable to this PA or to Contractor’s obligations under this PA, as they may be adopted or amended from time to time. All rights and remedies available to ODOT under applicable federal, State and local laws are also incorporated by reference herein and are cumulative with all rights and remedies under the PA. Without limiting the generality of the foregoing, ODOT’s performance is conditioned upon Contractor’s compliance with the following laws, regulations and executive orders (as amended from time to time) to the extent they are applicable to the PA:

a. (Non-discrimination) Titles VI and VII of Civil Rights Act of 1964; Sections 503 and 504 of the Rehabilitation Act of 1973; the Americans with Disabilities Act of 1990; Executive Order 11246; The Age Discrimination in Employment Act of 1967, and the Age Discrimination Act of 1975; The Vietnam Era Veterans’ Readjustment Assistance Act of 1974;

b. ORS 279B.020 Maximum hours of labor on public contracts; holidays; exceptions; liability to workers; rules;

c. ORS 279B.220 – Prompt payment to suppliers and subcontractors; payment of contributions or amounts due the Industrial Accident Fund; liens or claims against the State on account of any labor or material furnished; payment of withholding to the Department of Revenue under ORS 316.167;

d. ORS 279B.230 – Payment for medical care and providing workers’ compensation;

e. ORS 279B.235 Condition concerning hours of labor;

f. all regulations and administrative rules established pursuant to the foregoing laws.

6.11 GOVERNING LAW. The PA shall be governed by and construed in accordance with the internal laws of the State without regard to principles of conflicts of law. To the extent not modified by the terms of this PA, the Uniform Commercial Code as codified in ORS Chapters 71 and 72 governs any Goods sold under this PA.

6.12 VENUE; CONSENT TO JURISDICTION. Any claim, action, suit or proceeding (collectively, "Claim") between ODOT and Contractor that arises from or relates to the PA shall be brought and conducted solely and exclusively within the Circuit Court of Marion County for the State; provided, however, if a Claim must be brought in a federal forum, then unless otherwise prohibited by law it shall be brought and conducted solely and exclusively within the United States District Court for the District of Oregon. CONTRACTOR HEREBY CONSENTS TO THE IN PERSONAM JURISDICTION OF SAID COURTS. Nothing herein shall be construed as a waiver of the State's sovereign or governmental immunity, whether derived from the Eleventh Amendment to the United States Constitution or otherwise, or of any defenses to Claims or jurisdiction based thereon.

6.13 INDEMNIFICATION. Contractor shall defend, save, hold harmless, and indemnify the State, the Oregon Transportation Commission, ODOT, and its officers, employees and agents from and against all claims, suits, actions, losses, damages, liabilities, costs and expenses, including attorney fees, of any nature whatsoever resulting from, arising out of, or relating to the contract, including but not limited to (1) the activities of Contractor or its officers, employees, subcontractors, or agents, and (2) the Goods provided by Contractor. However, the Oregon Attorney General must give written authorization to Contractor or any legal counsel purporting to act in the name of, or represent the interests of the State, its officers, employees and agents prior to such action or representation. Further, the State, acting by and through its Department of Justice, may assume its own defense, including that of its officers, employees and agents, at any time when in the State's sole discretion it determines that (i) proposed counsel is prohibited from the particular representation contemplated; (ii) counsel is not adequately defending the interests of the State, its officers, employees and agents; (iii) important governmental interests are at stake; or (iv) the best interests of the State are served thereby. Contractor's obligation to pay for all costs and expenses shall include those incurred by the State in assuming its own defense and that of officers, employees, and agents under (i) and (ii) above.

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

6.17 SAFETY DATA SHEET (SDS) AND PRODUCT LABELING. Contractor shall comply with hazard communication requirements set forth in 29 CFR 1910.1200. Contractor shall provide ODOT with an SDS [as defined by the Occupational Safety and Health Administration (OSHA) and the Globally Harmonized System of Classification and Labelling of Chemicals (GHS)] for any Goods provided or products used under the PA which may release or otherwise result in exposure to a hazardous chemical under normal conditions of use. Contractor shall keep SDS on file at the location where products that include classified chemicals are used or stored by Contractor. In addition, Contractor must label, tag or mark such products with the following information:

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

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

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

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

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

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

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

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

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

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

6.30 ELECTRONIC SIGNATURES. The Parties agree that signatures showing on PDF documents, including but not limited to PDF copies of the PA and amendments, submitted or exchanged via email are “Electronic Signatures” under ORS Chapter 84 and bind the signing Party and are intended to be and can be relied upon by the Parties. ODOT reserves the right at any time to require the submission of the hard copy originals of any documents.

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 – RESERVED

· Exhibit B – RESERVED

· Exhibit C – Insurance Requirements

· Exhibit D – Title VI Non-Discrimination Provisions

· Exhibit E – RESERVED

· Exhibit F – RESERVED

· Exhibit G – Purchase Order Provisions

“RESERVED” indicates an exhibit is not used for this Price Agreement.

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 templateat 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…