Price Agreement No. XXXXX
Page 1 of 23
Awarded Date:
/ /OREGON DEPARTMENT OF TRANSPORTATION
ATTACHMENT A – SAMPLE PRICE AGREEMENT
/This Price Agreement (“PA”) is between the State of Oregon, acting by and through its Department of Transportation, hereafter called “ODOT”, and __(legal name)______, [ENTER THE STATE OF INCORPORATION IF CONTRACTOR IS A CORPORATION] a _(enter state) corporation, hereafter called “Contractor”. ODOT and Contractor together are referred to as “Parties” and individually referred to as “Party”. ODOT’s designated “Price Agreement Administrator” and Contractor’s key personnel for this Price Agreement and resulting Contracts are identified in Exhibit J, Contact Information and Key Persons.
ODOT’s designated “Price Agreement Administrator” and “Contractor Contract Administrator” for this Price Agreement are identified in Exhibit J, Contact Information and Key Persons. This PA sets forth the terms and conditions applicable to Goods that may be required under Contracts entered into between the Parties under this PA. This PA does not guarantee that any Contracts will be entered between the Parties.
NOTE TO ODOT PERSONNEL: This is a mandatory use Price Agreement and all purchases of the Goods listed under the Price Agreement must be purchased through this Price Agreement. If the Authorized Purchaser believes that they have just cause to purchase the Goods from another source, they are required to submit a written request for an exemption from purchasing under the Price Agreement to the Price Agreement Administrator for review and approval.
RECITALS:
A. ODOT issued Invitation to Bid (“ITB”) # 23869 seeking Bids from qualified and responsible vendors to provide a Price Agreement, described in Exhibit A of this Price Agreement; and
B. Contractor submitted a Bid in response to the ITB offering to provide the Price Agreement as set forth in Exhibit A at the prices set forth in Section K of the ITB pursuant to the terms and conditions set forth therein; and
C. ODOT, by its execution of Section 2.32 hereof, has accepted Contractor's Bid to the extent set forth in Section 2.32.
AGREEMENT:
In consideration of the foregoing recitals and subject to the covenants, terms and conditions set forth below Contractor agrees to sell and ODOT agrees to purchase the Goods described herein.
1. CONTRACT EFFECTIVE DATE AND TERM:
This Price Agreement is effective on the date it has been signed by the Parties and all required State of Oregon approvals have been obtained. The Price Agreement for which ODOT requires the Contractor to supply Goods as described in Exhibit A, Specifications. Contractor shall perform its obligations according to this Price Agreement and resulting Contracts through final delivery and acceptance of all Goods ordered under the Contract, unless the Contract or Price Agreement is terminated or suspended.
1.2 TERM OF PRICE AGREEMENT: The initial term of the Price Agreement shall be 2 years, beginning on the date the Price Agreement is awarded. Upon concurrence of the parties, the Price Agreement may be extended for additional terms ("Extension Terms"). Provided, however, that the maximum duration of the Price Agreement, including all extensions, shall be 5 years.
a. EXTENSIONS: ODOT shall notify Contractor in writing of ODOT's intent to extend the Price Agreement ("Renewal Notice") at least 30 days prior to the expiration of the then-current term. If Contractor consents to the extension, it shall sign and return the Renewal Notice to ODOT within the time period specified therein. If Contractor does not consent, the Price Agreement shall expire according to its terms, unless earlier terminated.
b. ONE MONTH EXTENSION OPTION: Notwithstanding the foregoing SECTIONS 1.2 and 1.2.a, ODOT reserves the right in its sole discretion to extend the Price Agreement for a maximum of 1 calendar month beyond any term. ODOT shall notify Contractor in writing of the one-month extension prior to the expiration of the then-current term. Price adjustments are not available for one-month extensions obtained pursuant to this Section, consecutive one-month extensions under this Section are not allowed.
c. EXTENSION TERM PRICE ADJUSTMENTS: Contractor may seek a Unit price increase reflecting increased operating and raw material costs ("Production Costs") for an Extension Term by submitting a written request to ODOT, including all appropriate price documentation, within the period specified in the Renewal Notice. If approved, the Unit price increase shall be firm for the duration of the Extension Term. Provided, however, no more than one Unit price increase shall be allowed during any twelve-month period regardless of the number of Extension Terms entered into during that time.
2. Specifications:
Contractor shall supply all Goods as described in Exhibit A, Specifications. Contractor shall not provide any Goods until the Price Agreement has been signed by all Parties, all necessary State of Oregon approvals have been obtained, and ODOT has issued a notice to proceed to Contractor.
3. Compensation:
The payment methodology and basis for payment to Contractor is described in Exhibit B, Compensation.
4. Price Agreement Documents:
Definitions:
For purposes of this Price Agreement and resulting Contracts:
a. “Authorized Purchaser” means any ODOT personnel authorized by ODOT to make purchases under the Price Agreement. Sales to any other state or governmental agency shall not be permitted under the Price Agreement.
b. “Calendar Days” means any day appearing on the calendar, whether a weekday, weekend day, national holiday, State holiday or other day;
c. “Contract” means the Purchase Order or “PO” submitted by an Authorized Purchaser to purchase Goods under the Price Agreement.
d. “Business Days” means calendar days, excluding Saturdays, Sundays and all State recognized holidays.
In addition to the above, the definitions contained in Section A.1 of the Invitation to Bid shall also apply to the Price Agreement.
4.1 Exhibits:
This Price Agreement includes the following exhibits, each of which is attached and incorporated into this Price Agreement and resulting Contracts as though fully set forth herein:
a. / Exhibit A / Specificationsb. / Exhibit B / Compensation
c. / Exhibit C / Insurance
d. / Exhibit F / Contract (“Purchase Order”) Requirements
e. / Exhibit G / Performance Evaluation
f. / Exhibit H / Conflict of Interest Disclosure
g. / Exhibit J / Contact Information and Key Persons
h. / Exhibit L / Special Terms and Conditions
4.3 Exhibits Incorporated by Reference From Website(s):
This Price Agreement includes the following exhibits, each of which, although not physically attached, is incorporated by this reference into this Price Agreement with the same force and effect as though fully set forth herein:
a. / Exhibit D / Influence and Debarment Provisions (Sep 2007)b. / Exhibit E / (RESERVED)
c.
d. / Exhibit I
Exhibit K / (RESERVED)
(RESERVED)
The full text of the above referenced exhibits may be reviewed and downloaded on line at the following address: http://www.oregon.gov/ODOT/CS/OPO/AE.shtml##Contract_Docs
5. Order of Precedence:
Unless a different order is required by law, this Price Agreement and all resulting Contracts shall be interpreted in the following order of precedence:
1. / This Price Agreement, including all Amendments (if any) less all attachments, exhibits and other material incorporated into this Price Agreement by reference;2. / Exhibit A / Specifications
3. / Exhibit B / Compensation
4. / Exhibit C / Insurance
5. / Exhibit L / Special Terms and Conditions
6. / Exhibit H / Conflict of Interest Disclosure
7. / Exhibit D / Influence and Debarment Provisions
8. / Exhibit G / Performance Evaluations
9. / Exhibit E / Disadvantaged Business Enterprise (“DBE”) Required Provisions
10. / Exhibit J / Contact Information and Key Persons
11. / Exhibit K / RESERVED
12. / Exhibit F / Contract (“Purchase Order”) Requirements
EACH CONTRACT INCORPORATES APPLICABLE PROVISIONS FROM THE FOREGOING EXHIBITS AND MAY EXCLUDE SOME EXHIBITS IN THEIR ENTIRETY IF THEY ARE NOT APPLICABLE TO A PARTICULAR CONTRACT. EACH CONTRACT INCORPORATES ALL PROVISIONS SET FORTH UNDER PART 2, BELOW.
6. Amendments to PA: ODOT may amend this PA to the extent permitted by applicable statutes and administrative rules. Any such amendments shall not be effective unless in writing, signed by the parties, and all approvals required by applicable law have been obtained.
PART 1 – GENERAL PRICE AGREEMENT PROVISIONS
1.1 GOODS TO BE FURNISHED: During the term of the Price Agreement, Contractor agrees to deliver all Goods ordered by ODOT in accordance with the terms and conditions of the Price Agreement.
a. ODOT makes no representation or guarantee whatsoever as to the amount or type of purchases to be made under this Price Agreement. All estimated quantities listed in the ITB, including those listed in SECTION K PRICING PROPOSAL, are estimates of the quantities that will be ordered by ODOT during the initial term of the Price Agreement. These figures are intended to serve only as a general guide to Bidders and a method for bid evaluation, and are not be construed as a representation or guarantee of the number or quantity of items that will actually be purchased by ODOT during the initial term of the Price Agreement. By submitting a bid, the Contractor thereby expressly waives and relinquishes any claim it may have, under the Price Agreement, which arise out of or is related to the quantity of items ODOT actually purchases under this Price Agreement.
1.2 MOST FAVORABLE PRICES AND TERMS: Contractor represents that all prices, terms and benefits offered by Contractor under this Price Agreement 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.
a. Should Contractor, during the term of the Price Agreement, 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, this Price Agreement shall thereupon be deemed amended to provide the same price or prices, terms and benefits to the State. This provision applies to comparable Goods, and to purchase volumes by the State 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.
b. Section 1.2 does not apply to donations of Goods to charitable, nonprofit or government entities, if the donations are recognized as such and are deductible under the federal Internal Revenue Code, shall not be considered contracts, agreements, sales or arrangements with other Government units or commercial customers that call for the application of section 1.2.
1.3 PRICE DECREASE: The Authorized Purchaser shall be given the immediate benefit of any price decrease. Contractor shall promptly notify the Price Agreement Administrator of the amount and effective date of each decrease. This decrease shall apply to orders placed on or after the effective date of the decrease. Invoices shall reflect prices in effect on the date the Authorized purchaser’s Contract document was written.
a. Should such decreased prices again increase during the term of the Price Agreement, including extensions, OPO shall honor the increase if acceptable documentation verifying the increase is submitted to the Price Agreement Administrator. The Price Agreement Administrator shall determine what constitutes acceptable documentation.
b. Fixed Terms, Conditions and Prices. A Price Agreement constitutes a firm offer by the Contractor regardless of whether any order or purchase has been made or any performance has been tendered under the Price Agreement. A Price Agreement is enforceable for the period stated in the Price Agreement and, notwithstanding ORS 72.2050, obligations there under are not revocable by the Contractor per ORS 279B.140.
PART 2. TERMS & CONDITIONS APPLICABLE TO AND INCORPORATED INTO CONTRACTS, AND APPLICABLE GENERALLY TO THIS PRICE AGREEMENT.
EACH CONTRACT INCORPORATES APPLICABLE PROVISIONS FROM THE FOREGOING EXHIBITS AND MAY EXCLUDE SOME EXHIBITS IN THEIR ENTIRETY IF THEY ARE NOT APPLICABLE TO A PARTICULAR CONTRACT. EACH CONTRACT INCORPORATES ALL PROVISIONS SET FORTH UNDER PART 2, BELOW.
The following provisions apply to and are incorporated into all Contracts entered into under this Price Agreement. The following provisions are also generally applicable to this PA, and where the context so requires, the reference in a provision to Contract shall be read to mean this PA for purposes of applying the provision to this PA:
2.1 Conflict of Interest: Contractor, by its signature on the Price Agreement, declares and certifies under penalty of perjury that: (i) Contractor and its Associates are in compliance with the ODOT Conflict of Interest Guidelines (as may be revised from time to time) available at: http://www.oregon.gov/ODOT/CS/OPO/AE.shtml#Misc, and (ii) if submittal of a Conflict of Interest Disclosure Form is required, the information Contractor provided through the Conflict of Interest Disclosure Form is true, accurate and complete as of the Price Agreement effective date or if not, Contractor has submitted to ODOT a Conflict of Interest Disclosure Form in the form required by ODOT that is updated, true, accurate and complete as of the Price Agreement effective date. In addition, Contractor shall submit to ODOT a true, accurate and complete Conflict of Interest Disclosure Form, in the form required by ODOT, no later than 10 business days following the date Contractor becomes aware of any staffing, organizational or other material changes that result in nonconformance with disclosure requirements of the ODOT Conflict of Interest Guidelines.
2.2 Responsibility for Taxes: Contractor shall be responsible for all federal or state taxes applicable to compensation or payments paid to Contractor under the Price Agreement and, unless Contractor is subject to backup withholding, ODOT will not withhold from such compensation or payments any amount(s) to cover Contractor's federal or state tax obligations. Contractor is not eligible for any social security, unemployment insurance or workers' compensation benefits from compensation or payments paid to Contractor under the Price Agreement, except as a selfemployed individual.
2.3 Subcontracts and Assignment; Successors and Assigns:
a. Contractor shall not enter into any subcontracts for any of the Goods required by the Price Agreement, or in any manner assign or transfer any of its rights or interest under the Price Agreement or delegate any of its duties or performance under the Price Agreement, without ODOT's prior written consent, except for subcontracts necessary to comply with any DBE requirements, when applicable. In addition to any other provisions ODOT may require, Contractor shall include, in any permitted subcontract under the Price Agreement, contractual provisions that shall require any subcontractor (which may also be referred to as “Subcontractor”) to comply with Sections 2.4, 2.5, 2.6, 2.7, 2.11, 2.17, and 2.22 of these Price Agreement provisions and the limitations provided in Exhibit B - Compensation, in the performance of the subcontractor’s services that is the subject of the Price Agreement, as if the subcontractor were the Contractor. ODOT’s consent to any subcontract shall not relieve Contractor of any of its duties or obligations under the Price Agreement, including with respect to any services, whether performed or to be performed by Contractor or a subcontractor.