Mower Attachments & Zero Turn Mowers

Invitation No.: 208-20 Location: Statewide Commodity: Mower Attachments & Zero Turn Mowers Multiple Award Pricing: http://www.dot.state.oh.us/Divisions/ContractAdmin/Contracts/PurchDocs/208pricing.xls INVITATION TO BID (ITB) State of Ohio, Department of Transportation Office of Contract Sales, Purchasing Services Jack Marchbanks, Ph. D., Director Bid Submission Deadline (Bid Opening Date): September 17, 2019 at 2:00 p.m. eastern time Submitted by: Company Name: Federal Tax ID No.: Physical/Mailing Address: Remit to Payment Address: Street Address: P.O. Box: City: St: Zip: Contact Person and Phone Number: (authorized to answer questions about your company’s bid) E-Mail Address (required): (person who filled out bid) E-Mail Address (required): (for notification of future bid opportunities) Telephone Number 800 Number Fax Number Return Properly Marked,

Complete Bid Packages To: Ohio Department of Transportation Office of Contract Sales, Purchasing Services, 1st floor 1980 West Broad St. Mail Stop 4110 Columbus, OH 43223 BIDDERS MUST SUBMIT ANY QUESTIONS, CLARIFICATIONS, OR INQUIRIES REGARDING THIS INVITATION TO BID VIA THE FOLLOWING WEBSITE: http://www.dot.state.oh.us/Divisions/ContractAdmin/Contracts/Pages/PurchasePBQ.aspx Contents REQUIREMENTS/SPECIFICATIONS .......................................................................................................................... 4 State of Ohio, Department of Transportation (ODOT) ........................................................................................... 13 Terms and Conditions for Submitting Excel Pricing File in Bid Package .......................................................... 13 INSTRUCTIONS, TERMS AND CONDITIONS FOR BIDDING ................................................................................. 14 GENERAL DEFINITIONS........................................................................................................................................... 22 STANDARD CONTRACT TERMS AND CONDITIONS ............................................................................................ 24 ODOT COOPERATIVE PURCHASING PROGRAM REQUIREMENTS ................................................................... 35 DISTRICT MAP .......................................................................................................................................................... 36 SIGNATURE PAGE .................................................................................................................................................... 37 Mower Attachments & Commercial Zero Turn Mowers 09/04/2019 REQUIREMENTS/SPECIFICATIONS Section 1: Intent The purpose of this invitation to bid is to establish term contracts with qualified suppliers of Mowing Attachments & Zero Turn Mowers. Quantities and types of units to be purchased by ODOT and Political Subdivisions through this contract are undefined. Purchases will be made on an as needed basis. Section 2: Contract Duration The effective duration of this contract shall be for twelve (12) months from the Date of Award. Section 3: Price Adjustments Price increases during the term of this contract will only be approved for Federal mandates. A price increase request must be made in writing to the Office of Contract Sales and include all documentation that supports the need for the price increase. ODOT reserves the right to cancel the contract if the price increase is considered unacceptable. If acceptable, new pricing will take effect 30 days after the date of the acceptance letter. Section 4: Free on Board (F.O.B.) Destination The net unit bid prices submitted shall include delivery charges, Free on Board (F.O.B.) Place of Destination to any of ODOT’s twelve (12) Districts and eighty-eight (88) county destination locations in the State of Ohio, as per the enclosed map: NOTE: Purchase orders/ordering documents when issued, will detail specific destination points. District 1 - Lima District 7 - Sidney District 2 - Bowling Green District 8 - Lebanon District 3 - Ashland District 9 - Chillicothe District 4 - Akron District 10 - Marietta District 5 – Jacksontown District 11 – New Philadelphia District 6 – Delaware District 12 – Garfield Heights Central Garage – Columbus (CG) OPI/CCI – Chillicothe Section 5: Delivery Delivery of all placed orders must be completed within one hundred and fifty (150) calendar days upon receipt of a Purchase Order. 5.1 Delivery Hours All deliveries made to a Department of Transportation facility must be made between the hours of 8:00 a.m. and 2:00 p.m., Monday through Friday, unless special permission is granted by the Department to temporarily waive or adjust this requirement. 5.2 Proto-type unit During bid evaluation, the Department may require a bidder to provide a proto-type unit within ten (10) calendar days to be inspected by ODOT personnel at manufacturer’s plant or factory authorized dealer located within the boundaries of the State of Ohio. The proto- type unit will be inspected and tested by the Department for specification compliance before an award will be made. Units not passing inspection will be rejected and not eligible for award of this invitation to bid. The Department of Transportation reserves the right, in its sole discretion, to waive the above proto-type inspection process. 5.3 Fuel and Diesel Exhaust Fluid Units purchased through this contract must be delivered with a full tank of fuel and diesel exhaust fluid, if applicable. Section 6: Purchase Orders The awarded vendor must be able to provide the awarded vehicles through this contract and accept purchase orders throughout the entire duration of any resulting contract. Section 7: Multiple Award ODOT will accept all responsive bids submitted on or before the specified bid opening date and make an award to all responsive bidders pursuant to O.R.C. 5513.02. Section 8: Dealers and Service It will be the responsibility of the awarded vendor/manufacturer to provide a list of authorized onsite service providers or authorized dealers in the State of Ohio to provide warranty and service repair. ODOT is not responsible for incurring travel expenses. Section 9: Fluids & Lubricants Vendor must fill out “FLUIDS & LUBRICANTS” tab to the manufacture’s standard recommendation. Must fill out accordingly to the equipment being bid through this contract. The vendor may add more rows & columns if there are more fluids or lubricants not covered in the spreadsheet. Section 10: Trade-In The Ohio Department of Transportation (and Political Subdivisions) reserves the right to offer used, operational mower attachments as trade-ins. The trade-in attachments will be complete and in running condition. The Administrator of the Office of Equipment Management reserves the right to reject or refuse any trade-in allowances offered if it is determined by ODOT that refusal will be in ODOT’s best interest. Section 11: Identification Number With invoicing, provide description and serial/vin number for each commodity being built. Section 12: Options List All bidders are required to provide a complete manufacturer’s options list for the make and model being bid as well as the attachments. Provide these options in the Ohio Dept. of Transportation excel pricing options list. Section 13: Mower Integration All attachments below must, but not limited to, integrate with all units on ODOT contract 207. Section 14: Product Specifications All parts not specifically mentioned, which are necessary to provide a complete unit, or normally furnished as standard equipment shall be furnished. The parts shall conform in strength, quality of material and workmanship to what is normally provided in the industry. Equipment provided through this contract must meet all applicable Federal and State regulations. Bidders should submit with their bids, the latest literature that fully describes the units being bid and complete the attached Specification and Documentation of Compliance Sheet. Should a bidder fail to submit the literature and/or complete the attached Specification and Documentation of Compliance sheet, the bid may not be considered for award. The signing of this bid shall be considered a certification that the model as bid herein is the latest current model and will include the manufacturer’s latest engineering changes. The Ohio Department of Transportation will consider performance history of similar equipment, vendor’s service and vendor’s overall responsiveness to the Department of Transportation’s utility of the products. The Bidder of the machine which is considered for award shall, at the request of the Ohio Department of Transportation, demonstrate the equipment at a location chosen by the Department Personnel to prove any feature or performance capabilities which may be in question. Should the Demonstration Machine fail to meet Department requirements, the machine shall be adjudged as non-conforming to bid specifications. (Specifications continue on next page) ITEM NO. MINIMUM EQUIPMENT SPECIFICATIONS SECTION 1: SINGLE-WING REAR ROTARY MOWER A. GENERAL: 1A. The equipment will meet all federal and state regulations. 2A. Hitch Pull-Type Rotary mower. 3A. All mounting labor and unit kits must be included in the mower’s purchase price. B. MOWER DECK: 1B. Cutting Width: Minimum 120 in. 2B. Deck Thickness: Minimum 7GA or approved equal. 3B. Cutting Height: Approximately 1 in. – 16 in. 4B. Blade Tip Speed: 540 RPM/ 1000 RPM. 5B. Manufacture’s standard Jack Stand or approved equal. 6B. Provide ALL options/pricing for tires & wheels in ODOT excel pricing page. 7B. Manufacture’s standard wing lift hydraulics controlled in operator’s cab. 8B. LED manufacture’s standard light kit or approved equal. 9B. Chain Guard Safety Deflectors. C. DISCOUNT PRICING: 1C. Please specify a discount for the purchase of one or more mowers by the Ohio Dept. of Transportation. D. WARRANTY: 1D. Manufacture’s Standard warranty on all parts and service. Provide pricing in options page for extended warranty. ITEM NO. MINIMUM EQUIPMENT SPECIFICATIONS SECTION 2: DOUBLE-WING REAR ROTARY MOWER A. GENERAL: 1A. The equipment will meet all federal and state regulations. 2A. Hitch Pull-Type Rotary mower. 3A. All mounting labor and unit kits must be included in the mower’s purchase price. B. MOWER DECK: 1B. Cutting Width: Minimum 180 in. 2B. Deck Thickness: Minimum 7GA or approved equal. 3B. Cutting Height: Approximately 1 in. – 16 in. 4B. Blade Tip Speed: 540 RPM/ 1000 RPM. 5B. Manufacture’s standard Jack Stand or approved equal. 6B. Provide ALL options/pricing for tires & wheels in ODOT excel pricing page. 7B. Manufacture’s standard wing lift hydraulics controlled in operator’s cab. 8B. LED manufacture’s standard light kit or approved equal. 9B. Chain Guard Safety Deflectors. C. DISCOUNT PRICING: 1C. Please specify a discount for the purchase of one or more mowers by the Ohio Dept. of Transportation. D. WARRANTY: 1D. Manufacture’s Standard warranty on all parts and service. Provide pricing in options page for extended warranty. ITEM NO. MINIMUM EQUIPMENT SPECIFICATIONS SECTION 3: REAR FLAIL MOWER A. GENERAL: 1A. The equipment will meet all federal and state regulations. 2A. Hitch Pull-Type Flail mower. 3A. All mounting labor and unit kits must be included in the mower’s purchase price. B. MOWER DECK: 1B. Cutting Width: 72 in. – 96 in. 2B. Must be able to be attached to the ODOT specified tractor(s). C. DISCOUNT PRICING: 1C. Please specify a discount for the purchase of one or more mowers by the Ohio Dept. of Transportation. D. WARRANTY: 1D. Manufacture’s Standard warranty on all parts and service. Provide pricing in options page for extended warranty. ITEM NO. MINIMUM EQUIPMENT SPECIFICATIONS SECTION 4: MID-MOUNT RIGHT SIDE FLAIL MOWER A. GENERAL: 1A. The equipment will meet all federal and state regulations. 2A. Right Side Mid-Mount Flail Mower Assembly. 3A. All mounting labor and unit kits must be included in the mower’s purchase price. B. MOWER DECK: 1B. Minimum length 60 in. (Provide option and pricing for all available mower sizes in ODOT excel pricing page) 2B. Must be able to be attached to the ODOT specified tractor(s). C. DISCOUNT PRICING: 1C. Please specify a discount for the purchase of one or more mowers by the Ohio Dept. of Transportation. D. WARRANTY: 1D. Manufacture’s Standard warranty on all parts and service. Provide pricing in options page for extended warranty. ITEM NO. MINIMUM EQUIPMENT SPECIFICATIONS SECTION 5: MID-MOUNT RIGHT SIDE ROTARY MOWERS A. GENERAL: 1A. The equipment will meet all federal and state regulations. 2A. Right Side Mid-Mount Rotary Mower Assembly. 3A. All mounting labor and unit kits must be included in the mower’s purchase price. B. MOWER DECK: 1B. Minimum 60 in. cutting width (Provide all options for mower in ODOT excel pricing page) 2B. Minimum 72 in. cutting width (Provide all options for mower in ODOT excel pricing page) C. DISCOUNT PRICING: 1C. Please specify a discount for the purchase of one or more mowers by the Ohio Dept. of Transportation. D. WARRANTY: 1D. Manufacture’s Standard warranty on all parts and service. Provide pricing in options page for extended warranty. ITEM NO. MINIMUM EQUIPMENT SPECIFICATIONS SECTION 6: REAR-MOUNT OFFSET FLAIL MOWER A. GENERAL: 1A. The equipment will meet all federal and state regulations. 2A. Rear 3-point mount offset mower assembly. 3A. All mounting labor and unit kits must be included in the mower’s purchase price. 4A. Fully adjustable cutting height. 5A. Full rubber deflector for restricted spreading of clippings or approved equal. B. MOWER DECK: 1B. Minimum 60 in. cutting width (Provide all options for mower in ODOT excel pricing page) 2B. Minimum 72 in. cutting width (Provide all options for mower in ODOT excel pricing page) 3B. Flexibility cutting positions. Must have ability to cut roadside ditch banks while keeping tractor in a level position. C. DISCOUNT PRICING: 1C. Please specify a discount for the purchase of one or more mowers by the Ohio Dept. of Transportation. D. WARRANTY: 1D. Manufacture’s Standard warranty on all parts and service. Provide pricing in options page for extended warranty. ITEM NO. MINIMUM EQUIPMENT SPECIFICATIONS SECTION 7: REAR-MOUNT 3-POINT HITCH MOWER A. GENERAL: 1A. The equipment will meet all federal and state regulations. 2A. Rear-Mount Mower utilizing the 3-point assembly provided on tractor. 3A. All mounting labor and unit kits must be included in the mower’s purchase price. B. MOWER DECK: 1B. Boom: Minimum length 18 ft. (Provide option and pricing for all available boom lengths in ODOT excel pricing page) 2B. Flail: Minimum 44” Flail mower head. (Provide option pricing for all available mower head sizes in ODOT excel pricing page) 3B. Rotary: Minimum 48” Rotary mower head. (Provide option pricing for all available mower head sizes in ODOT excel pricing page) C. DISCOUNT PRICING: 1C. Please specify a discount for the purchase of one or more mowers by the Ohio Dept. of Transportation. D. WARRANTY: 1D. Manufacture’s Standard warranty on all parts and service. Provide pricing in options page for extended warranty. ITEM NO. MINIMUM EQUIPMENT SPECIFICATIONS SECTION 8: ZERO TURN MOWER A. GENERAL: 1A. The equipment will meet all federal and state regulations. 2A. Zero turn commercial type mower. 3A. Manufacture’s standard Roll Over Protective System (ROPS). 4A. All mounting labor and unit kits must be included in the mower’s purchase price. B. MOWER DECK: 1B. Cutting Width: 60” – 66”. 2B. Deck Thickness: Minimum 7-gauge steel. 3B. Cutting Height: Approx. 1 in. – 16 in. 4B. Traveling speed 0 mph to 16 mph. 5B. Provide ALL options/pricing for tires & wheels in ODOT excel pricing page. 6B. Foot Operated deck lift. 7B. Suspension seat. Provide all suspension seat options in ODOT excel pricing page. C. DISCOUNT PRICING: 1C. Please specify a discount for the purchase of one or more mowers by the Ohio Dept. of Transportation. D. WARRANTY: 1D. Manufacture’s Standard warranty on all parts and service. Provide pricing in options page for extended warranty. ITEM NO. MINIMUM EQUIPMENT SPECIFICATIONS SECTION 9: ZERO TURN MOWER A. GENERAL: 1A. The equipment will meet all federal and state regulations. 2A. Zero turn commercial type mower. 3A. Manufacture’s standard Roll Over Protective System (ROPS). 4A. All mounting labor and unit kits must be included in the mower’s purchase price. B. MOWER DECK: 1B. Cutting Width: 67” – 75”. 2B. Deck Thickness: Minimum 7-gauge steel. 3B. Cutting Height: Approx. 1 in. – 16 in. 4B. Traveling speed minimum 8 mph to maximum 16 mph. 5B. Provide ALL options/pricing for tires & wheels in ODOT excel pricing page. 6B. Foot Operated deck lift. 7B. Suspension seat. Provide all suspension seat options in ODOT excel pricing page. C. DISCOUNT PRICING: 1C. Please specify a discount for the purchase of one or more mowers by the Ohio Dept. of Transportation. D. WARRANTY: 1D. Manufacture’s Standard warranty on all parts and service. Provide pricing in options page for extended warranty. ITEM NO. MINIMUM EQUIPMENT SPECIFICATIONS SECTION 10: DITCHING ATTACHMENT A. GENERAL: 1A. The equipment will meet all federal and state regulations. 2A. Boom-Type Ditcher Attachment B. DITCHER DIMENSIONS: 1B. Cutting Width: Minimum 22 in. 2B. Hydraulic Deflector chute or approved equal. C. DISCOUNT PRICING: 1C. Please specify a discount for the purchase of one or more mowers by the Ohio Dept. of Transportation. D. WARRANTY: 1D. Manufacture’s Standard warranty on all parts and service. Provide pricing in options page for extended warranty. Section 15: Required Ohio Shared Services Vendor Registration All vendors that are deemed awarded any portion of this invitation to bid are required to be registered through the Ohio Shared Services Office to obtain an OAKS Vendor Identification Number, if they have not already obtained one, in order for an award of this invitation to occur. An award of this invitation cannot be completed until this vendor registration process has taken place and an OAKS Vendor Identification Number has been assigned. It is strongly encouraged that prospective bidders submit their vendor registration paperwork to Ohio Shared Services as soon as possible before the day of the bid opening of this invitation to bid. This will avoid delays in the awarding of this invitation to bid and allow contract purchasing to commence sooner. The required forms to become registered through Ohio Shared Services can be found by following the link below: http://ohiosharedservices.ohio.gov/SupplierOperations/Forms.aspx Completed forms are required to be submitted directly to Ohio Shared Services, per the submission instructions on the forms. Completed forms or questions regarding this vendor registration process should not be directed to ODOT. Any questions regarding this registration process should be directed to Ohio Shared Services Customer Service by calling 1-877-644-6771. PLEASE NOTE: THIS VENDOR REGISTRATION PROCESS DOES NOT APPLY TO VENDORS WHO REGULARLY PARTICIPATE ON ODOT PURCHASING CONTRACTS. IF THE DEPARTMENT HAS ISSUED TO YOUR COMPANY A PURCHASE ORDER IN THE PAST SEVERAL YEARS, AS A DIRECT RESULT OF AN AWARDED PURCHASING CONTRACT SUCH AS THIS ONE, YOU WOULD HAVE ALREADY OBTAINED AN OAKS VENDOR IDENTIFICATION NUMBER THROUGH OHIO SHARED SERVICES. IF THERE IS A QUESTION AS TO WHETHER OR NOT YOUR COMPANY IS REGISTERED WITH OHIO SHARED SERVICES, PLEASE CONTACT THE ODOT PURCHASING SECTION BY EMAIL AT: CONTRACTS.PURCHASING@DOT.STATE.OH.US http://ohiosharedservices.ohio.gov/SupplierOperations/Forms.aspx mailto:CONTRACTS.PURCHASING@DOT.STATE.OH.US State of Ohio, Department of Transportation (ODOT) Office of Contract Sales, Purchasing Services Terms and Conditions for Submitting Excel Pricing File in Bid Package (Last Revised 02/2019) 1. DOWNLOADING THE EXCEL PRICING FILE: Bidders can access and download the most current Excel Pricing File for this invitation to bid by following the hyperlink provided below: http://www.dot.state.oh.us/Divisions/ContractAdmin/Contracts/PurchDocs/208pricing.xls 2. SUBMISSION OF EXCEL PRICING FILE: Bidders should submit both a media device with the completed electronic Excel pricing file (.xls) and a hard copy print out of the completed Excel file in their submitted bid package. The media device should be marked with the bidder’s name and the Invitation to Bid number. “Media Device”- Compact Disc (CD), DVD (Digital Versatile Disc), or Flash Drive Failure to submit this media device with a completed Excel price sheet from the Department’s Microsoft Excel file and the hard copy print out of the completed Excel price sheet may result in a bid being deemed non-responsive by the Department. 3. DISCPREPANCIES IN SUBMITTED INFORMATION: In the event there is a discrepancy between the information submitted on the media device and the hard copy Excel price sheet, the information submitted on the media device will take precedence. 4. NON-FUNCTIONAL MEDIA DEVICE: The Department shall not be held liable in the event a bidder’s media device is not functional, is broken, or is unable to be accessed/downloaded by the Department for any reason. Bidders should take care to ensure all submitted media devices are properly protected during transport. 5. UNAPPROVED ALTERATIONS TO EXCEL PRICING FILE: Bidders who materially alter the original content of the Excel pricing file (e.g. specifications, formulas, etc.) issued by the Department may be found non-responsive and ineligible for award of this invitation to bid. 6. CHANGES TO EXCEL PRICING FILE: The Department will only make modifications to the Excel pricing file by written addendum only. Where changes are necessary to the Excel pricing page, the Department will issue a new Excel pricing page indicating the revisions made and a revision date for the changes. It is the sole responsibility of the bidder to check for issued addenda prior to submitting a bid package to ensure the most updated Excel pricing file is being utilized. 7. DESCRIPTIVE LITERATURE: Bidders may electronically, on their submitted media device, provide any descriptive literature (e.g. brochures, spec/cut sheets, drawings, MSDS, etc.) regarding the products and/or services offered by the bidder. As this literature may be publicly posted for viewing by purchasers, bidders must not submit any literature electronically in which they consider to be a trade secret, proprietary, or confidential in any way. (the remainder of this page has been left intentionally blank) http://www.dot.state.oh.us/Divisions/ContractAdmin/Contracts/PurchDocs/208pricing.xls State of Ohio, Department of Transportation (ODOT) Office of Contract Sales, Purchasing Services INSTRUCTIONS, TERMS AND CONDITIONS FOR BIDDING (Last revised 02/2019) 1. BIDDER REGISTRATION: The Department requires awarded bidder(s) to successfully register as a State of Ohio Supplier with the Department of Ohio Shared Services and successfully obtain an OAKS vendor identification number (OAKS ID) within fourteen (14) calendar days from the date of contract award and execution. The Department cannot utilize awarded Contracts to purchase from a bidder who cannot obtain an OAKS ID from Ohio Shared Services. In the event an awarded bidder is unable to obtain an OAKS ID, the Department shall reserve the right to revoke its award to the bidder and immediately cancel any resulting Contract. A Supplier Information Form and W-9 must be completed and sent back directly to Ohio Shared Services in order to register and apply for an OAKS ID. The following website can be accessed by bidders to obtain both the forms and specific instructions for obtaining an OAKS ID: http://ohiosharedservices.ohio.gov/SupplierOperations/Forms.aspx It is strongly recommended that all interested bidders not already registered with Ohio Shared Services submit the above paperwork prior to the bid submission deadline. 2. HOW BIDS MUST BE PACKAGED: All submitted bids in response to this Invitation to Bid (ITB) must be submitted in a sealed envelope or box (envelope means any type of sealed, opaque container) marked with the ITB number, the title of the ITB, bid submission deadline (bid opening date), and bidder (company) name clearly marked on the outside of the envelope/box. If a bidder is using an “Express Mail” or similar type of service, the bid response must be contained in a sealed envelope within the “Express” mailer (the bid number must be listed on the exterior of the sealed envelope contained within the “Express” mailer). A bid that is not properly and clearly marked and is inadvertently opened, before the scheduled bid opening time, may be disqualified, at the Department’s discretion, without additional consideration for award of the contract. Below is an example to illustrate how the outer surface of the bid package should be labeled: Invitation to Bid #: (insert bid number) Commodity/Service: (insert title of bid) Bid Submission Deadline: (insert due date) Company Name: (insert company name) 3. WHAT NEEDS INCLUDED IN BID PACKAGE: Submitted bid packages should include, at a minimum, a completed Signature Page, a hard copy print out of this entire invitation to bid document, media device with a completed Excel pricing page, hard copy of the completed Excel pricing page, and all necessary supportive documentation, forms, and any other information required herein. The Department may deem a bid non-responsive for failure to submit any of the documents requested above. 4. PREBID QUESTIONS, DISCREPANCIES, AND CLARIFICATIONS: Any discrepancies, omissions, ambiguities, or conflicts in or among the bidding documents or doubts as to the meaning shall be brought to the Department’s attention by the bidder no less than three (3) business days prior to the bid submission deadline. All questions, discrepancies, clarifications, etc. must be submitted electronically (hyperlink below). During the competitive bidding process, bidders (and their agents) are prohibited from contacting any ODOT office, including District offices, other than the Office of Contract Sales, Purchasing Services section to obtain responses to any questions. The Department may find a bidder non-responsive for failing to adhere to any of the above requirements. Pre-bid questions/inquiries must be submitted electronically through the following website: http://www.dot.state.oh.us/Divisions/ContractAdmin/Contracts/Pages/PurchasePBQ.aspx http://ohiosharedservices.ohio.gov/SupplierOperations/Forms.aspx http://www.dot.state.oh.us/Divisions/ContractAdmin/Contracts/Pages/PurchasePBQ.aspx Answers to Pre-Bid Questions/Inquiries will be posted on the following document available for download at the following website: http://www.dot.state.oh.us/Divisions/ContractAdmin/Contracts/Purchase/PBQ-Answers.doc It is each bidder’s sole responsibility to check the website for updates to pre-bid questions and answers before submitting its bid package to the Department. 5. MODIFICATIONS TO THE BIDDING DOCUMENTS: When it is deemed necessary to modify these bidding documents, the Department will only do so by written addendum. The issuance of an addendum is dependent upon the information received and the impact on the competitive bid process. All issued addenda will be posted to the Department’s Upcoming ITB’s website and shall be automatically incorporated into the bidding/contract documents: http://www.dot.state.oh.us/Divisions/ContractAdmin/Contracts/Lists/PurchaseUpcomingITBs/UpI TBs.aspx In addition to posting on the above website, the Department also may email addenda information out to all known bidders for convenience purposes only. The Department shall not be held responsible for a bidder’s failure to receive the email with the addenda information. It is the sole responsibility of all interested bidders to diligently visit the above-listed website to see if any addenda have been issued prior to submitting their bid to the Department. Those interested in obtaining addenda information via email for a particular invitation to bid must send the Department its request in writing to the following email address: Contracts.Purchasing@dot.ohio.gov 6. PRE-BID CONFERENCES: The Department reserves the right to hold mandatory or optional pre-bid conferences at its discretion. Conferences may be held either in-person or via webinar/phone conference formats. Bidders will be required to sign-in at all pre-bid conferences. The sign-in sheet for all pre-bid conferences is considered a public record, will be kept in the bid file, and will be shared with any requesting party. Additionally, any business cards collected during any pre-bid conference shall be considered public records and may be distributed out to all conference attendees. Any changes to the requirements or specifications of an invitation to bid, as a result of the pre-bid conference content, will be made by written addendum and publicly posted. For mandatory pre-bid conferences, the Department requires that those companies intending on submitting a bid be in attendance for the entire duration of the pre-bid conference. Mandatory pre-bid conferences will officially begin five (5) minutes after the scheduled date and start time at the location specified in the Special Terms and Conditions. Those bidders not in attendance at that time will be considered ineligible to submit a bid. The conference will be considered adjourned and complete when a representative of the Office of Contract Sales, Purchasing Services section indicates so. To be considered in attendance and eligible to bid, a bidder must have at least one representative of the company in attendance. A single representative cannot be present on behalf of two or more companies (bidders). Each company (bidder) must send its own representative on behalf of their organization. It is the sole responsibility of the bidder to ensure that the representative follows the sign-in procedures to properly document the bidder’s attendance. The Department shall not be held responsible for a bidder’s failure to arrive at the meeting on time, properly sign-in, or failure to stay for the entire duration of the meeting. 7. WHERE BIDS MUST BE DELIVERED TO: The Department only accepts hand delivered and mailed bid packages. Bids submitted via email, telephone, electronic facsimile (fax), or any other mode of electronic transmission will not be considered a responsive bid submission. Bids must be in possession of the ODOT Office of Contract Sales, Purchasing Services section, on or prior to 2:00 p.m. eastern time, on the scheduled date of the bid submission deadline (public bid opening) as listed on the cover of this Invitation to Bid (ITB). Properly labeled bid packages must be either hand delivered by the bidder to the Office of Contract Sales, Purchasing Services section or mailed to the following EXACT address: http://www.dot.state.oh.us/Divisions/ContractAdmin/Contracts/Purchase/PBQ-Answers.doc http://www.dot.state.oh.us/Divisions/ContractAdmin/Contracts/Lists/PurchaseUpcomingITBs/UpITBs.aspx http://www.dot.state.oh.us/Divisions/ContractAdmin/Contracts/Lists/PurchaseUpcomingITBs/UpITBs.aspx mailto:Contracts.Purchasing@dot.ohio.gov Ohio Department of Transportation, Office of Contract Sales, Purchasing Services, 1st floor 1980 West Broad St. Mail Stop 4110 Columbus, OH 43223 (614) 644-7870 or (614) 752-9017 Main Office Line: 1-800-459-3778 OFFICE HOURS: 7:30-3:30, M-F (excluding State of Ohio recognized holidays) For hand delivery of bids, the Office of Contract Sales, Purchasing Services section is located on the 1st floor of ODOT Central Office (same address as where bids will be received). Bidders will be required to sign-in at the front desk of the building and then must be escorted back to the Office of Contract Sales, Purchasing Services section in order to drop off their bid. It is the responsibility of the bidder to ensure enough time is allotted to allow for all sign in and security procedures prior to the 2:00 p.m. bid submission deadline. Delivery of bids to any other location (including the ODOT mailroom), does not constitute receipt by the Purchasing Services section. Bids delivered to the ODOT mail room by a courier service must be delivered so as to leave a reasonable amount of time for the transfer of the bid to the Purchasing Services section. The ODOT mail room delivers received mail to Purchasing Services at scheduled times during normal office hours. 8. LATE BIDS: A bid received after 2:00 p.m. eastern time, on the bid submission deadline (bid opening date) established, shall be deemed “Late” and will not be considered for award of this invitation to bid. The late bid package will be marked as late, remain sealed, and will be kept in the Department’s bid file to serve as official record of a late bid having been received. Note: The Office of Contract Sales, Purchasing Services timeclock takes precedence over any other timekeeping device (e.g. cell phones, other ODOT clocks, wrist watches, etc.) and will be utilized by the Department to determine whether or not a bid was received by the 2:00 p.m. deadline. 9. PUBLIC BID OPENING PROCEDURE: All bids in possession of the Purchasing Services section shall be publicly opened, at ODOT Central Office, Office of Contract Sales, Purchasing Services section, 1st floor, starting at 2:01 p.m. on the scheduled date of public bid opening (bid submission deadline). All bids will be opened and read to any interested parties in attendance. At the conclusion of the public bid opening, bids may no longer be shared with interested parties until after a contract award has been made. 10. BIDS FIRM: Once publicly opened, all bids are firm and cannot be altered by the bidder. Once a Contract is awarded and executed, the Vendor shall deliver all products and/or services at the bid prices and terms contained in the Contract. All submitted bids shall remain valid for a period of sixty (60) calendar days after the date of the public bid opening. Beyond sixty (60) calendar days, bidders will have the option to either honor their submitted bid or make a written request to withdraw their bid from consideration. The Ohio Department of Transportation shall receive the benefit of any decrease in price during the sixty (60) day period. 11. WITHDRAWAL OF BIDS: A bidder may, by way of written notice to the Purchasing Services section, request to withdraw their bid response prior to the bid submission deadline. The request must be received by the Purchasing Services Section PRIOR to the start of the public bid opening (beginning at 2:01 p.m.) on the date of the bid submission deadline. Such written notice must set forth the specific reasons for the bid withdrawal. For requests to withdrawal a bid after the public bid opening has begun, the bidder may request to withdraw their bid response from consideration if the unit bid price(s) submitted are unreasonably lower than the other bids received, provided the bid was submitted in good faith, and the reason for the unit bid price(s) being substantially lower was due to an unintentional and substantial arithmetical error or unintentional omission of a substantial quantity of material or labor in the compilation of the bid. Written notice of any such request to withdraw after the bid opening must be received by the Purchasing Services section within no later than forty-eight (48) hours of the scheduled public bid opening. The decision to allow a bid to be withdrawn is at the sole discretion of the Purchasing Services section. If the bid is to be awarded by category, lot, or group the withdrawal request will apply to all items within the category, lot, or group. All documents and conversations relating to any withdrawal request will become a part of the permanent bid file. 12. MODIFICATION OF SUBMITTED BIDS PRIOR TO PUBLIC BID OPENING: A bidder may request to modify their bid response prior to the scheduled date and time set for the public bid opening (i.e. bid submission deadline). To modify a bid response, the bidder must provide an alternate, complete bid package containing all required forms and necessary documents. The alternate bid package must be marked somewhere on the outer packaging as “REVISED”. Purchasing Services will not return the original bid package to the bidder. The original bid package will be kept in the contract file. In order to protect the integrity of the bidding process, bids shall not be prepared on the premises of ODOT. Any bid which is prepared on the premises of ODOT may be immediately disqualified and receive no further consideration for award. 13. UNIT BID PRICES: The unit bid price(s) submitted shall govern the award of this invitation to bid unless otherwise specified in the bid evaluation criteria. The unit bid price should be entered for each required bid item on the Department’s pricing page. Use of ditto marks, arrows, or other markings in lieu of the actual unit price may result in a non-responsive bid determination. Lot or group prices listed in the unit bid price area shall be considered as the unit price unless clearly identified as the lot price. Unless specifically allowed in the contract’s terms and conditions, requests to change or alter unit bid prices after the public bid opening are prohibited. The following requirements also apply to unit bid prices: a. DECIMAL POINT: Bidders should not insert a unit cost of more than two (2) digits to the right of the decimal point. Digit(s) beyond two (2) will be dropped and not recognized by the Department for the purposes of bid evaluation or contract award. b. CREDIT CARD FEES: Bidders must incorporate into their unit bid price(s) submitted all costs and fees associated with the State’s use of a payment (credit) card. c. DISCOUNTS: While bidders may offer to the Department discounts for prompt payment and other similar incentives, discounts and incentives these will not be used to alter the submitted unit bid price(s) for purposes of bid evaluation and contract award. This section only applies to bids awarded to the lowest responsive and responsible bidder either by individual bid item or group of bid items and does not include bids which are awarded to all responsive and responsible bidders (i.e. Multiple Award Contracts). d. MULTIPLE AWARD CONTRACTS: Pursuant to Ohio Revised Code 5513.02, the Department may award Contracts to all responsive and responsible bidders for articles (i.e. bid items) meeting the general specifications provided. These are referenced by the Department as ‘Multiple Award Contracts’. Unit bid prices submitted for Multiple Award Contracts shall be considered by the Department as an amount-not-to-exceed unit bid price for the entire duration of the Contract. These awarded, amount-not-to-exceed bid prices often do not reflect potential quantity discounts, freight discounts, nor other similar discounts/incentives offered periodically by a distributor, manufacturer, or supplier. Where like or similar bid items are being offered by two or more awarded Vendors (bidders) on the awarded Contract, the Department reserves the right to obtain quotes from all awarded bidders on the Contract in order to achieve the best and most up-to-date pricing available to the Department at the time of ordering. e. UNBALANCED BIDS: The Department will not accept unit bid prices that are deemed to be either materially or mathematically unbalanced. The final determination of an unbalanced unit bid price shall be at the Department’s sole discretion. f. TIE BID PROCESS: If two or more responsive bids offer the same unit bid price, ODOT may break the tie as follows: during the bid evaluation process, the bidders that submitted tie bids will be contacted and given up to three (3) business days to submit a written revised unit price for the affected item or items. Bidders are not required to submit a revised unit price. In the event a tie still exists after the above-prescribed deadline has passed, ODOT will schedule a coin flip to be conducted in the presence of both bidders. The winner of the coin flip will be deemed awarded the affected bid item(s). 14. PREFERENCE FOR OHIO/BORDER STATE PRODUCTS: The bid award for this invitation to bid may be subject to the domestic preference provisions of the Buy America Act, 41 U.S.C.A., 10a-10d, as amended, and to the preference for Ohio products under O.R.C. Sections 125.09 and 125.11 and Ohio Administrative Code Rule 123:5-1-06. A bidder must complete the enclosed Buy Ohio/Buy America Certification Statement form to be eligible to receive any applicable bid preferences. 15. RESPONSIVE BIDDER: A bidder is responsive if its bid responds to the bid specifications in all material respects and contains no irregularities or deviations from the specifications that would affect the amount of the bid or otherwise give the bidder an unfair competitive advantage. 16. MINOR INFORMALITIES OR IRREGULARITIES IN BIDS: A minor informality or irregularity is one that is merely a matter of form and not of substance. It also pertains to some immaterial defect in a bid or variation of a bid from the exact requirements of the invitation that can be corrected or waived without being prejudicial to other bidders. The defect or variation is immaterial when the effect on price, quantity, quality, or delivery is negligible when contrasted with the total cost or scope of the supplies or services being acquired. The Department either shall give the bidder an opportunity to cure any deficiency resulting from a minor informality or irregularity in a bid or waive the deficiency, whichever is to the advantage of the Department. 17. BIDDER RESPONSIBILITY: The Department will only award this invitation to bid to what it deems to be a responsible bidder. The Department’s determination of a bidder’s responsibility includes, but is not limited to, the following factors: a) experience of the bidder; b) bidder’s financial condition; c) bidder’s conduct and performance on previous contracts; d) the bidder’s facilities; e) the bidder’s management skills; f) the bidder’s employees; g) past experience and/or quality of bidder’s proposed subcontractors; h) the bidder’s ability to execute the contract; i) review of Federal and Department debarment lists; j) bidder has history of successful performance on contracts of similar size and scope; and k) current or impending legal actions against a bidder. 18. APPARENT CLERICAL MISTAKES: Clerical mistakes apparent on the face of the bid may be corrected, at the Department’s discretion, before contract award. The Department first shall obtain from the bidder a verification of the information intended and will attach written verification of the mistake by the bidder in the contract file and award documents. Example of apparent clerical mistakes are: (1) Obvious misplacement of a decimal point or comma; (2) Obvious incorrect discount factor; or (3) Transcription error in Part Number. 19. ADDITIONAL INFORMATION: The Department reserves the right to request additional information to evaluate a bidder’s responsiveness to the Invitation to Bid’s requirements and/or to evaluate a bidder’s overall responsibility. These requests may require the bidder’s submission of confidential materials (e.g. financial statements). If a bidder does not provide all of the requested information within the prescribed timeframe, the Department may find the bid non-responsive and ineligible for award. 20. PRODUCT SAMPLES: The Department may require bidders, by Invitation to Bid or by request during bid evaluation, to provide sample supplies or equipment or examples of work, at the Bidder’s expense. Samples must clearly identify the Bidder, the bid number, and the item the sample represents in the bid. The Department will return samples that are not destroyed by testing, at the Bidder's expense, upon the Bidder’s timely request. The Department may keep the samples of the Bidder awarded the contract until the completion of the contract. Unsolicited samples submitted in response to this Invitation to Bid will not be evaluated and the Department may dispose of them in any way it chooses. 21. SPECIFICATIONS: The Department is authorized by Sections 5513 and/or 125.02(B) of the Ohio Revised Code to prepare specifications and establish contracts to obtain the supplies, equipment, and/or services referenced within this invitation to bid. The purpose of the provided specifications is to describe the supplies, equipment, and/or services to be purchased and will serve as a fair and equitable basis for comparison of submitted bids. The Department may use any form of specification it determines to be in the best interest of the Department and that best describes the supplies or services to be purchased. Specifications may be in the form of a design specification or a combination thereof. If the department determines that a design, performance or a combination specification is not in the best interest of the Department, it may use brand name or equal specifications. Unless otherwise specified in this Invitation to Bid, all products, equipment, supplies, etc. offered by bidders must be in a new condition. A ‘new’ product is one that will be first used by the Department after it has been manufactured or produced. Used, reconditioned, or previously titled products, supplies, or equipment will not be considered for award of this Invitation to Bid. The Department uses qualified products list (QPL) and/or approved products lists (APL) developed by either itself or other qualified institutions to specify acceptable products and supplies that have been through proper application and testing procedures to verify conformance with technical and/or performance specifications. Where the Department requires products and supplies to be included on a specific QPL/APL listing, the Department will not accept bids for products/supplies that are not included on a specified QPL/APL at the time of public bid opening. A bidder may not be compensated for damages arising from inaccurate or incomplete information in the Invitation to Bid specifications or from inaccurate assumptions based upon the specifications. 22. USE OF BRAND NAMES: Unless otherwise provided in this solicitation, the name of a certain brand, make, or manufacturer does not restrict bidders to the specific brand, make, or manufacturer named, but conveys the general style, type, character, and quality of the article desired. Any article which the Department, in its sole discretion, determines to be the equivalent of that specified, considering quality, workmanship, economy of operation, or suitability for the purpose intended, may be accepted. The bidder is responsible to clearly and specifically identify the product being offered and to provide sufficient descriptive literature, catalog cuts and technical detail to enable the Department to determine if the product offered meets the requirements of the solicitation. Failure to furnish adequate data for evaluation purposes may result in declaring a bid nonresponsive. Unless the bidder clearly indicates in its bid that the product being offered is an equivalent product, such bid will be considered to offer the exact brand, make, or manufacturer name referenced in the bid solicitation. 23. DEVIATIONS: Statements or modifications made by a bidder in their submitted bid package that deviate from this Invitation to Bid’s terms, conditions, specifications and requirements may render a bid non- responsive and ineligible for award. Acceptance of any deviations or modifications will be confirmed by the Department in writing, if accepted. If the Department does not specifically approve submitted deviations or modifications in writing, an award of this invitation to bid shall not constitute acceptance of the bidder’s submitted modifications. 24. ESTIMATED QUANTITIES: Any purchase estimates indicated for bid item(s) are to be considered as estimates only. The Department makes no representation or guarantee as to the actual amount of item(s) to be purchased by the Department or Political Subdivisions. 25. OVERLAPPING CONTRACT ITEMS: The products and/or services included in this solicitation may be available from other State of Ohio contracts and/or other contracts made available for the Department’s use. The existence of these contracts containing like or similar products and/or services could be either known or unknown to the Department at the time this Invitation to bid has been published. Unless otherwise stated in this contract, the Department may acquire these products and/or services from any available source. The Department will make purchases from sources that are deemed to be in the best interest of the Agency. 26. REJECTION/PARTIAL AWARD OF BIDS: The Department reserves the right to reject any or all bid responses, award partial contracts, or choose to rebid when: (1) Product, supplies and/or services are not in compliance with the requirements, specifications, and terms and conditions set forth in this Invitation to Bid; or (2) Pricing offered is determined to be excessive in comparison with existing market conditions, or exceeds the available funds of the Department; or (3) Only one bid is received, and the Department cannot determine the reasonableness of the bid prices submitted; or (4) It is determined that the award of any or all items would not be in the best interest of the Department; or (5) The Department, in its opinion, did not achieve the desired amount of competition amongst qualified bidders for the products, supplies, and/or services being offered in the bid solicitation; or (6) Inadequate or ambiguous specifications were cited in the bidding documents; or (7) The Department determines that specifications and/or requirements were missing from the bidding documents; or (8) A bidder imposes additional terms and conditions against the Department. 27. NOTICE TO BIDDERS OF REJECTED BIDS: When the Department deems it necessary to reject a bid, the Department will notify each affected bidder and the reasons for such actions. 28. BID PROTESTS: Any bidder either deemed not responsible or whose bid has been deemed non- responsive shall be notified by the Department of that determination and the reasons for it. The notification will be provided by the Department in writing and sent by certified U.S. mail and at the email address provided on the front cover of this bid. The bidder will have five (5) calendar days after receipt (by mail or email confirmation) of this notification to file a written, valid protest of the Department’s determination. A valid written protest must contain substantive information and evidence so as to refute the Department’s asserted claims against either the bid’s responsiveness or bidder’s responsibility, whichever apply. The Department will only review and respond to valid written protests containing substantive information and evidence. After review of the valid written protest, the Department will either affirm or reverse its original determination. If a valid written protest is not received by the Department within five (5) calendar days of receipt, the Director of ODOT will move forward awarding the Contract and the affected bidder will have effectively waived its right to protest the Department’s decision. For the purposes of this paragraph, “receipt” shall be defined as verification (via either certified mail return receipt or electronic read or delivery receipt) that the apparent low bidder has received the Department’s written determination against the affected bidder. Upon the bidder’s receipt, the five (5) calendar day response deadline shall commence. 29. DELAYS IN CONTRACT AWARD: Delays in the award of this Invitation to Bid beyond the anticipated Contract start date may result in a change in the contract period as indicated in the Special terms and conditions of this bid solicitation. In these instances, ODOT shall reserve the right to award a contract covering a period equal to or less than the initial contract term than originally specified in this bid solicitation. 30. CONTRACT AWARD AND FORMATION: Successful bidder(s) will receive via U.S. regular mail and/or email a Notice of Contract Award letter as well as a photocopy version of the Signature Page executed by both Parties. These documents shall serve to form the Contract between the Parties. The Signature Page must be executed by both the bidder and the Director of ODOT for the Contract to be deemed valid and enforceable. The Department will maintain in the Contract file the Signature Page document containing each parties’ original signature(s). Upon award of an Invitation to Bid, the bid invitation number (e.g. Invitation No. 999-16) will subsequently become the number assigned to the resulting Contract (e.g. ODOT Contract number 999-16) and will be referenced by the Department in all matters and documents related to said Contract. Upon award of an invitation to bid, successful bidders will thereafter be referenced as “Vendor” or “Contractor” by the Department in all matters and documents related to the resulting Contract. 31. PUBLIC POSTING OF AWARDED CONTRACTS: All Contracts awarded by the Office of Contract Sales, Purchasing Services section are posted to the Department’s website. Successful bidders and awarded Contract pricing can be found by viewing the Contract’s award tab (Excel file). Award tabs can be accessed via the following website: http://www.dot.state.oh.us/Divisions/ContractAdmin/Contracts/Lists/PurchaseCurrentContracts/C urrentKs.aspx 32. PUBLIC RECORD: All opened bids and their contents are subject to the Public Records Law, Section 149.43 of the Ohio Revised Code. Copies of bid responses must be requested and will be provided within a reasonable period of time and at a fee established by the Director of ODOT. To expedite and properly respond to such public records requests, a written request must be submitted to the Department. To prevent delays in evaluating bids and awarding contracts, such requests for recently opened bids, will be honored after a Contract has been executed. Bidders may request that specific information, such as trade secrets or proprietary data, be designated as confidential and not considered as public record. Material so designated shall accompany the bid and be in a sealed container duly marked, and shall be readily separable from the bid in order to facilitate public inspection of non-confidential portion. Prices, makes, models, catalog numbers of items offered, deliveries and terms of payment cannot be considered as confidential. The decision as to whether or not such trade secrets or proprietary data shall be disclosed at the bid opening rests solely with the Department. Requests to view previously submitted bids must be submitted in writing to either of the following addresses: Contracts.Purchasing@dot.ohio.gov Ohio Department of Transportation Office of Contract Sales, Purchasing Services 1980 West Broad St. Mail Stop 4110 Columbus, OH 43223 (the remainder of this page has been left intentionally blank) http://www.dot.state.oh.us/Divisions/ContractAdmin/Contracts/Lists/PurchaseCurrentContracts/CurrentKs.aspx http://www.dot.state.oh.us/Divisions/ContractAdmin/Contracts/Lists/PurchaseCurrentContracts/CurrentKs.aspx mailto:Contracts.Purchasing@dot.ohio.gov State of Ohio, Department of Transportation (ODOT) Office of Contract Sales, Purchasing Services GENERAL DEFINITIONS When used in this Invitation to Bid or any ensuing contract, the following definitions shall apply. If a conflict exists between these definitions and any definition listed in the bid specifications, the bid specifications shall prevail. 1. AGENCY: Ohio Department of Transportation. 2. AUTHORIZED DISTRIBUTOR: The bidder/vendor who maintains written legal agreements with manufacturers/producers to act as their agent and provide supplies, materials, equipment or services listed in the bid/contract. The authorized distributor must maintain active and sufficient facilities necessary to perform the awarded contract, own title to the goods inventoried within these facilities and maintain a true stock of these goods on a continuing basis and in sufficient quantity to provide uninterrupted service to ordering agencies. 3. BIDDER: The company and/or authorized representative of the company who has signed and is submitting a bid response and who will be responsible to ensure proper performance of the contract awarded pursuant to the bid. 4. DEPARTMENT: Ohio Department of Transportation 5. EQUIPMENT: Items, implements and machinery with a predetermined and considerable usage life. 6. F.O.B. PLACE OF DESTINATION: meaning the Vendor pays, and includes the cost of such in their bid, and bears the risk for the transportation/delivery of goods delivered to the specified locations provided by the Purchaser. 7. INVITATION TO BID/CONTRACT: All documents, whether attached or incorporated by reference, utilized for soliciting bids. Upon completion of the evaluation and award of the bidder's response, the Invitation to Bid then becomes the contract between ODOT and the successful bidder, both governed by the laws of the State of Ohio. 8. INVOICE: An itemized listing showing delivery of the commodity or performance of the service described in the order, and the date of the purchase or rendering of the service, or an itemization of the things done, material supplied, or labor furnished, and the sum due pursuant to the contract or obligation. 9. LOWEST RESPONSIVE\RESPONSIBLE BIDDER: A bidder who offers the lowest cost for the goods or services listed in the bid; and whose proposal responds to bid specifications in all material respects and contains no irregularities or deviations from the specifications which would affect the amount of the bid or otherwise give him a competitive advantage; and whose experience, financial condition, conduct and performance on previous contracts, facilities, management skills evidences their ability to execute the contract properly. 10. MINORITY BUSINESS ENTERPRISE (MBE): means an individual, partnership, corporation or joint venture of any kind that is owned and controlled by U. S. Citizens and residents of Ohio, who are and have held themselves out as members of the following socially and economically disadvantaged groups: Blacks, American Indians, Hispanics and Asians. Only businesses certified by the State of Ohio Equal Opportunity Division in accordance with Section 123.151 of the Ohio Revised Code shall be recognized as being MBE certified within the purpose of this invitation. 11. MATERIALS: Items or substance of an expendable or non-expendable nature from which something can be made, improved or repaired. 13. PURCHASE: To buy, purchase, installment purchase, rent, lease, lease purchase or otherwise acquire equipment, materials, supplies or services. "Purchase" also includes all functions that pertain to obtaining of equipment, materials, supplies or services, including description of requirements, selection and solicitation of sources, preparation and award of contracts, and all phases of contract administration. 14. SERVICES: The furnishing of labor, time or effort by a person, not involving the delivery of a specific end product other than a report which, if provided, is merely incidental to the required performance. "Services" does not include services furnished pursuant to employment agreements or collective bargaining agreements. 15. SPECIFICATION: Any description of the physical or functional characteristics or of the nature of supplies, equipment, service, or insurance. It may include a description of any requirements for inspecting, testing, or preparing supplies, equipment, services, or insurance. 16. SUPPLIES: Provisions and items normally considered expendable or consumable.14. UNBALANCED: Any unit price contained in the bid schedule which is obviously unbalanced either above or below reasonable cost analysis and or unreasonably disproportionate to current market prices as determined by the Director of ODOT, or if such unbalanced prices are contrary to the interest of the department. 17. VENDOR: The bidder who, upon awarding of a contract, then becomes a Vendor who is considered to be a primary source for providing the goods and/or services included in the awarded contract and the party to whom payment will be made upon delivery of the goods and/or completion of the contract. 18. SUBVENDOR/SUBCONTRACTOR: An individual, firm or corporation to whom the Vendor sublets part of the contract to be performed. (the remainder of this page has been left intentionally blank) State of Ohio, Department of Transportation (ODOT) Office of Contract Sales, Purchasing Services STANDARD CONTRACT TERMS AND CONDITIONS (Last Revised 02/2019) 1. HEADINGS: The headings used in this Contract are for convenience only and shall not be used to affect the interpretation of any of the Contract terms and conditions. 2. ENTIRE CONTRACT: This Contract consists of the complete Invitation to Bid, including the Instructions, Terms and Conditions for Bidding, these Standard Contract Terms and Conditions, the Special Contract Terms and Conditions, ODOT Cooperative Purchasing Program Requirements, mutually executed Signature Page, Specifications and Requirements, awarded unit bid pricing, and any written addenda to the Invitation to Bid; the completed competitive sealed bid, including proper modifications, clarifications and samples; and applicable, valid State of Ohio purchase orders or other ordering documents (“Contract”). 3. APPROPRIATION OF FUNDS. Pursuant to the Constitution of the State of Ohio, Article II Section 22, ODOT’s funds are contingent upon the availability of lawful appropriations by the Ohio General Assembly. If the Ohio General Assembly fails at any time to continue funding for the payments or obligations due hereunder, the Work under this Contract that is affected by the lack of funding will terminate and ODOT will have no further obligation to make any payments and will be released from its obligations on the date funding expires. The current Ohio General Assembly cannot commit a future Ohio General Assembly to a future expenditure. If the term of this Contract extends beyond a biennium, the Contract will expire at the end of a current biennium and the State may renew this Contract in the next biennium by issuing written notice to the Vendor no later than July 1 of the new biennium. The operating biennium expires June 30th of each odd-numbered calendar year. 4. OBM CERTIFICATION: None of the rights, duties, or obligations in this Contract will be binding on the Department, and the Vendor will not begin its performance, until all of the following conditions have been met: 1. All statutory provisions under the O.R.C., including Section 126.07, have been met; and 2. All necessary funds are made available by the Ohio Office of Budget and Management; or 3. If ODOT is relying on Federal or third-party funds for this Contract the ODOT gives the Vendor written notice that such funds have been made available. 5. CONTRACT MODIFICATIONS: Amendments or modifications to this Contract must be executed in writing between the parties and signed by the Director of ODOT. Amendments or modifications to this Contract made between the Vendor and other Department personnel shall be void and unenforceable. 6. CONTRACT CONSTRUCTION: Any general rule of construction to the contrary notwithstanding this Contract shall be liberally construed in favor of the effect the purpose of this Contract and the policy and purposes of the Department. If any provisions in this Contract are found to be ambiguous, an interpretation consistent with the purpose of this Contract that would render the provision valid shall be favored over any interpretation that would render it invalid. 7. GOVERNING LAW / SEVERABILITY: This Contract shall be governed by the laws of the State of Ohio, and the venue for any disputes will be exclusively with the appropriate court in Franklin County, Ohio. If any provision of the Contract or the application of any provision is held by that court to be contrary to law, the remaining provisions of the Contract will remain in full force and effect. 8. ASSIGNMENT / DELEGATION: The Vendor will not assign any of its rights nor delegate any of its duties under this Contract without the written consent of the Director of ODOT. Any assignment or delegation not consented to may be deemed void by the Department. 9. PLACEMENT OF ORDERS/METHODS OF PAYMENT: The Department shall use either State of Ohio Purchase Order or State of Ohio Payment Card (i.e. credit card) to authorize performance under this Contract and to issue payments for supplies, products, and/or services acquired. Vendors are required to accept both forms of payment. For Department purchases over $2,500.00, an official State of Ohio purchase order must be generated and obtain approvals from the Office of Budget and Management, the Department of Administrative Services, and the Director of Transportation prior to its effectiveness. An approved State of Ohio purchase order will be sent to the Vendor and the Vendor will provide the goods and/or services listed on the ordering documents and in accordance with the Contract’s terms and conditions. Any order placed not using an approved ODOT purchase order or against a State payment card, shall not be considered a valid order and may result in denial of payment and/or return of goods at the Vendor's expense. 10. ACCEPTANCE OF ORDERS: The Vendor must accept orders placed by the Department pursuant to this Contract up through the last day of the Contract’s effectiveness, inclusive of any contract extensions exercised or agreed-upon between the Parties. 11. BLANKET PURCHASE ORDERS: The Department utilizes blanket purchase orders to pre-authorize funding for use on Contracts containing bid items that, due to the urgent nature of maintaining the Department’s highways and facilities, are critical to the Department executing its mission and objectives. The generation of blanket purchase orders are not used by the Department to place a specific order, rather as a means to make funding more readily available for use when Contract items are needed. The Vendor shall keep all blanket purchase orders on file and make them readily available for use by Department personnel to place orders against. When placing orders against a blanket purchase order, the Department will telephone or email orders referencing the blanket purchase order and its associated ODOT purchase order number. All of the Contract’s terms and conditions shall apply to the Department’s orders referencing a blanket purchase order. For all blanket purchase orders, quantities and amounts to be purchased from these purchase orders is unknown by the Department and Vendors must not construe these purchase orders as a commitment to purchase a specific amount of goods and/or services. Accordingly, the Department reserves the right to increase or decrease the available funding on these blanket purchase orders at its discretion. 12. DELIVERY INSPECTION AND ACCEPTANCE: Upon pick-up or delivery of any supplies, products, and/or services, ODOT retains the right to inspect the product/service prior to final acceptance and/or payment for the product/service. ODOT shall have sufficient and reasonable time to fully inspect supplies and/or services for compliance. The purpose of the inspection process is to ensure that the product/service is in compliance with the specifications set forth in the awarded contract. In the event that the product/service does not meet the specifications, ODOT shall notify the Vendor for removal/replacement of the product and/or service at the Vendor’s expense. ODOT shall retain all rights and remedies as described herein. Wherein products ordered by ODOT are delivered to a facility, which is not owned by ODOT and where ODOT has contracted with this facility to take delivery of products ordered by ODOT, acceptance will occur when the products have been inspected and accepted by ODOT within a reasonable amount of time after delivery to the facility. ODOT shall not be responsible for any storage costs incurred prior to the inspection and acceptance. 13. RETURN GOODS POLICY: The Department will apply the following Return Goods Policy on all purchases made under the Contract: (A) Return goods, when due to Vendor debar (i.e. over-shipment, defective merchandise, unapproved substitution, etc.) shall be returned to the Vendor, at the Vendor’s expense. The Vendor shall make arrangements to remove the return goods from the Department’s premises within five (5) calendar days after notification. The Vendor shall not apply any restocking or other charges to the Department. At the option of the Department, replacement items may be accepted and will be shipped within five (5) calendar days of notification. Failure of the Vendor to arrange for return of the items within the specified time will result in the items being deemed as abandoned property and the Department will dispose of accordingly. (B) For orders of custom manufactured items, the Vendor will provide a production sample of the item to the Department for acceptance. The production sample will be identical to the item to be provided. The Department will provide written acceptance of the item prior to the Vendor continuing with production. Once delivery and acceptance has been completed and the Department determines for any reason that any remaining quantities will not be used, the agency may request the return of the custom manufactured items. Acceptance of the return of custom manufactured items will be at the option of the Vendor. If the Vendor agrees to the return of these items, the Department will be responsible for all costs associated with packaging, shipment and transportation, to include the original shipment to the Department and subsequent return of goods to the location designated by the Vendor. The Vendor may assess restocking fees that are equivalent to restocking fees that are normally assessed to other customers or as published by the Vendor. Failure of the Vendor to provide a production sample and obtain written approval from the Department will result in the Vendor bearing all responsibility and costs associated with the return of these goods. (C) Return goods of regular catalog stock merchandise, when due to Department error (i.e. over purchase, discontinued use, inventory reduction, etc.) will be accepted by the Vendor if notice is given by the Department within six (6) months of delivery and acceptance. All items to be returned must be unused and in their original containers and in suitable condition for resale. The Department will be responsible for all transportation costs associated with both the original shipment of items to the agency and the subsequent return of the items to the location designated by the Vendor. The Vendor may assess a restocking fee (not to exceed 10%) associated with the return of the items to the location designated by the Vendor. Return of regular stock catalog merchandise, when delivery and acceptance exceed six (6) months will be at the option of the Vendor. 14. PRODUCT RECALLS: In the event product delivered has been recalled, seized, or embargoed and/or has been determined to be misbranded, adulterated, or found to be unfit for human consumption by the packer, processor, manufacturer or by any Department or Federal regulatory agency, the Vendor shall be responsible to notify the ODOT Office of Contract Sales, Purchasing Services section and all other ordering agencies/entities within two business days after notice has been given. Vendor shall, at the option of the Department, either reimburse the purchase price or provide an equivalent replacement product at no additional cost. Vendor shall be responsible for removal and/or replacement of the affected product within a reasonable time as determined by the ordering agency. At the option of the ordering agency, Vendor may be required to reimburse storage and/or handling fees to be calculated from time of delivery and acceptance to actual removal. Vendor will bear all costs associated with the removal and proper disposal of the affected product. Failure to reimburse the purchase price or provide equivalent replacement product will be considered a default. 15. PRODUCT SUBSTITUTION: In the event a specified product listed in the Contract becomes unavailable or cannot be supplied by the Vendor for any reason (except as provided for in the Force Majeure clause), a product deemed in writing by the Department to be equal to or better than the specified product must be substituted by the Vendor at no additional cost or expense to the Department. Unless otherwise specified, any substitution of product prior to the Department’s written approval may be cause for termination of Contract. The Department reserves the right to deny any substitution request that it is deemed to not be in the best interest of the Department. In these instances, the Department may seek substitute products from another supplier and assess the difference in cost, if any, as damages against the Vendor for their material breach. 16. INVOICE REQUIREMENTS: The Vendor must submit an original, proper invoice to the office designated on the purchase order as the “bill to” address. To be a proper invoice, the invoice must include the following information: 1. The ODOT purchase order number authorizing the delivery of products or services. 2. A description of what the Vendor delivered, including, as applicable, the time period, serial number, unit price, quantity, and total price of the products and services. 3. The Contract number pursuant to the deliverable. 17. DEFECTIVE INVOICES: In the event the Department is in receipt of defective or improper invoices, the Department shall postpone payment pursuant to Section 126.30 of the Ohio Revised Code. Invoices shall be returned to the Vendor noting areas for correction. If such notification of defect is sent, the required payment date shall be thirty (30) calendar days after receipt of the corrected invoice. 18. PAYMENT DUE DATE: Payments under this Contract will be due on the 30th calendar day after the date of actual receipt of a proper invoice in the office designated to receive the invoice, or the date the service is delivered and accepted in accordance with the terms of this Contract. The date of the warrant issued in payment will be considered the date payment is made. Interest on late payments will be paid in accordance with O.R.C. Section 126.30. 19. INSURANCE POLICIES: By way of provision in this Contract to maintain specific minimum levels of insurance coverage(s) (e.g. Commercial General liability, Auto liability, Public liability, Property Damage, etc.), the Vendor shall provide to Department upon request evidence of such insurance required to be carried by these provisions, including any endorsement affecting the additional insured status, is in full force and effect and that premiums therefore have been paid. Such evidence shall be furnished by the Vendor within two (2) business days and on the insurance industry's standard ACORD Form (Certificate of Insurance) or a certified copy of the original policy. The Certificate of Insurance or certified copy of the policy must contain an endorsement naming the State of Ohio, Department of Transportation, its officers, agents, employees, and servants as additionally insured, but only with respect to Work performed for the Department under this Contract, at no cost to Department. Vendor shall notify the Department within ten (10) calendar days of receipt of a notice of cancellation, expiration, or any reduction in coverage, or if the insurer commences proceedings or has proceedings commenced against it, indicating the insurer is insolvent. Vendor shall provide to the Department evidence of a replacement policy at least five (5) calendar days prior to the effective date of such cancellation, expiration, or reduction in coverage. All required insurance policies shall be maintained at Vendor’s sole expense and in full force for the complete term of the Contract, including any warranty periods. Reference 107.12 the Construction & Materials Specification handbook. 20. TAXATION: ODOT is exempt from federal excise taxes and all Department and local taxes, unless otherwise provided herein. ODOT does not agree to pay any taxes on commodities, goods, or services acquired from any Vendor. 21. CONTRACT TERMINATION: If a Vendor fails to perform any one of its obligations under this Contract, it will be in breach of contract and the Department may terminate this Contract in accordance with this section. Notices of contract termination shall be made in writing. The termination will be effective on the date delineated by the Department. a. Termination for Breach. If Vendor’s breach is unable to be cured in a reasonable time, the Department may terminate the Contract by written notice to the Vendor. b. Termination for Un-remedied Breach. If Vendor’s breach may be cured within a reasonable time, the Department will provide written notice to Vendor specifying the breach and the time within which Vendor must correct the breach. If Vendor fails to cure the specified breach within the time required, the Department may terminate the Contract. If the Department does not give timely notice of breach to Vendor, the Department has not waived any of the Department’s rights or remedies concerning the breach. c. Termination for Persistent Breach. The Department may terminate this Contract by written notice to Vendor for defaults that are cured, but persistent. “Persistent” means three or more breaches. After the Department has notified Vendor of its third breach, the Department may terminate this Contract without providing Vendor with an opportunity to cure. The three or more breaches are not required to be related to each other in any way. d. Termination for Endangered Performance. The Department may terminate this Contract by written notice to the Vendor if the Department determines that the performance of the Contract is endangered through no fault of the Department. e. Termination for Financial Instability. The Department may terminate this Contract by written notice to the Vendor if a petition in bankruptcy or a Federal or State tax lien has been filed by or against the Vendor. f. Termination for Delinquency, Violation of Law. The Department may terminate this Contract by written notice, if it determines that Vendor is delinquent in its payment of federal, Department or local taxes, workers’ compensation, insurance premiums, unemployment compensation contributions, child support, court costs or any other obligation owed to a Department agency or political subdivision. The Department also may cancel this Contract, if it determines that Vendor has violated any law during the performance of this Contract. However, the Department may not terminate this Contract if the Vendor has entered into a repayment agreement with which the Vendor is current. g. Termination for Subcontractor Breach. The Department may terminate this Contract for the breach of the Vendor or any of its subcontractors. The Vendor will be solely responsible for satisfying any claims of its subcontractors for any suspension or termination and will indemnify the Department for any liability to them. Subcontractors will hold the Department harmless for any damage caused to them from a suspension or termination. The subcontractors will look solely to the Vendor for any compensation to which they may be entitled. h. Termination for Vendor’s Failure to Pay Material Suppliers. Pursuant to Section 4113.61 of the Ohio Revised Code, Vendors shall promptly pay material suppliers, within ten (10) calendar days of receipt of payment from the State of Ohio, for materials ordered and delivered as a result of this contract. A Vendor unable to furnish bid items because of non-payment issues related to a material supplier shall constitute grounds for the Director of ODOT to terminate this contract immediately. A Vendor may, at the discretion of the Department, be given an amount of time, amount shall be specified by the Department in writing, to furnish past due payment to the material supplier before termination shall occur. j. Failure to Maintain MBE Certification. Pursuant to O.R.C. Section 125.081, the State may set aside a bid for supplies or services for participation only by minority business enterprises (MBE’s) certified by the State of Ohio, Equal Opportunity Coordinator. After award of the Contract, it is the responsibility of the MBE Vendor to maintain certification as a MBE. If the Vendor fails to renew its certification and/or is decertified by the State of Ohio, Equal Opportunity Coordinator, the State may immediately cancel the Contract. k. Failure to Maintain Licensure. The Vendor’s failure to maintain the proper license(s) to perform the services or provide the goods prescribed by this Contract shall be grounds to terminate this Contract without prior notice. l. Qualified Products Listing and Approved Products Listing. Any products or supplies removed from a specific qualified products listing/approved product listing, by either the Department, government, or governing body throughout the duration of the Contract shall be removed from the Contract effective on the date of removal from the respective listing. 22. NOTICE OF BREACH: Each party of this Contract has an obligation to provide written notice when it is determined by one party that the other party is in default of this Contract. A notice of ODOT’s default of this Contract must be sent to the Procurement Manager of the ODOT Office of Contract Sales. 23. CONTRACT SUSPENSION: A Vendor who fails to perform any one of its obligations under this Contract will be in breach. In these instances, ODOT may choose to suspend the Vendor from the contract rather than terminate the Contract. In the case of a suspension for ODOT’s convenience, the amount of compensation due the Vendor for work performed before the suspension will be determined in the same manner as provided in this section for termination for ODOT’s convenience or the Vendor may be entitled to compensation for work performed before the suspension, less any damage to ODOT resulting from the Vendor’s breach of this Contract or other fault. The notice of suspension, whether with or without cause, will be effective immediately on the Vendor’s receipt of the notice. The Vendor will immediately prepare a report and deliver it to ODOT which will include a detailed description of work completed, percentage of project completion, estimated time for delivery of all orders received to date, and costs incurred by the Vendor. 24. CANCELLATION FOR CONVENIENCE: The Department reserves the right to cancel and terminate this Contract, in whole or in part, without penalty, upon thirty (30) days written notice to an awarded vendor. In the event the initial contract period is for more than 12 months, the resulting contract may be terminated by either party, without penalty, after the initial 12 months of the contract period and upon a minimum of sixty (60) days written notice to the other party. Cancellations exercised in accordance with this section shall not relieve the Vendor of the obligation to deliver and/or perform on all outstanding orders issued prior to the effective date of cancellation. 25. CONTRACT DAMAGES: The Department may assess, at a minimum but not limited to, the following damages against a Vendor: A. ACTUAL DAMAGES: Vendor is liable to the State of Ohio for all actual and direct damages caused by Vendor’s breach. The Department may substitute supplies or services, from a third party, for those that were to be provided by Vendor. In accordance with Ohio Revised Code §5513.05(c), the Department may recover the costs associated with acquiring substitute supplies or services, less any expenses or costs saved by Vendor’s breach, from Vendor. B. LIQUIDATED DAMAGES: If actual and direct damages are uncertain or difficult to determine, the Department may recover liquidated damages in the amount of 1% of the value of the order, deliverable or milestone that is the subject of the breach for every day that the breach is not cured by the Vendor. If Delay of the cure is caused by ODOT, the delivery date shall be extended accordingly to offset such delays. Approval to extend any scheduled delivery date(s) shall be at the sole discretion of ODOT. C. DEDUCTION OF DAMAGES FROM CONTRACT PRICE: The Department may deduct all or any part of the damages resulting from Vendor’s breach from any part of the price still due on the contract, upon prior written notice issued to the Vendor by the Department. D. INCIDENTAL/CONSEQUENTIAL DAMAGES: Pursuant to Section 5513.05 of the Ohio Revised Code, the Department may recover from a Vendor who fails to promptly provide conforming articles, any incidental or consequential damages as defined in Section 1302.89 of the Ohio Revised Code, incurred by the Department in promptly obtaining the conforming articles. 26. CONTRACT TERM EXTENSIONS: ODOT reserves the right to unilaterally extend this Contract up to one (1) calendar month beyond the original contract expiration date at the original unit bid prices awarded. Contract extensions beyond one (1) calendar month shall be executed by means of written, mutual agreement with the Contract Vendor. 27. FIRM, FIXED PRICE CONTRACT: Unless otherwise specified in the bidding documents, this Contract is a Firm, Fixed-Price Contract. The Vendor will be required to provide to the Department with the materials, supplies, equipment and/or services at the awarded bid price(s) for the entire duration of the contract, and any extensions thereto. 28. FORCE MAJEURE: If the Department or Vendor is unable to perform any part of its obligations under this Contract by reason of force majeure, the party will be excused from its obligations, to the extent that its performance is prevented by force majeure, for the duration of the event. The party must remedy with all reasonable dispatch the cause preventing it from carrying out its obligations under this Contract. The term “force majeure” means without limitation: acts of God; such as epidemics; lightning; earthquakes; fires; storms; hurricanes; tornadoes; floods; washouts; droughts; any other severe weather; explosions; restraint of government and people; war; labor strikes; and other like events. 29. EQUAL EMPLOYMENT OPPORTUNITY: The Vendor will comply with all Department and federal laws regarding equal employment opportunity, including O.R.C. Section 125.111 and all related Executive Orders. 30. ANTITRUST ASSIGNMENT TO THE DEPARTMENT: Vendor assigns to the State of Ohio, through the Department of Transportation, all of its rights to any claims and causes of action the Vendor now has or may acquire under Department or federal antitrust laws if the claims or causes of action relate to the supplies or services provided under this Contract. Additionally, the State of Ohio will not pay excess charges resulting from antitrust violations by Vendor’s suppliers and subcontractors. 31. CONFIDENTIALITY: The Vendor may learn of information, documents, data, records, or other material that is confidential in the performance of this Contract. The Vendor may not disclose any information obtained by it as a result of this Contract, without the written permission of the Department. The Vendor must assume that all Department information, documents, data, records or other material is confidential. The Vendor’s obligation to maintain the confidentiality of the information will not apply where it: (1) was already in the Vendor’s possession before disclosure by the Department, and it was received by the Vendor without the obligation of confidence; (2) is independently developed by the Vendor; (3) is or becomes publicly available without breach of this Contract; (4) is rightfully received by the Vendor from a third party without an obligation of confidence; (5) is disclosed by the Vendor with the written consent of the Department; or (6) is released in accordance with a valid order of a court or governmental agency, provided that the Vendor (a) notifies the Department of such order immediately upon receipt of the order and (b) makes a reasonable effort to obtain a protective order from the issuing court or agency limiting disclosure and use of the confidential information solely for the purposes intended to be serviced by the original order of production. The Vendor will return all originals of any information and destroy any copies it has made on termination or expiration of this Contract. The Vendor will be liable for the disclosure of any confidential information. The parties agree that the disclosure of confidential information of the Department’s may cause the Department irreparable damage for which remedies other than injunctive relief may be inadequate, and the Vendor agrees that in the event of a breach of the obligations hereunder, the Department shall be entitled to temporary and permanent injunctive relief to enforce this provision without the necessity of providing actual damages. This provision shall not, however, diminish or alter any right to claim and recover. 32. DRUG-FREE WORKPLACE: The Vendor agrees to comply with all applicable Department and federal laws regarding drug-free workplace and shall make a good faith effort to ensure that all its employees, while working on Department property, will not purchase, transfer, use or possess illegal drugs or alcohol or abuse prescription drugs in any way. 33. WORKERS’ COMPENSATION: Workers’ compensation insurance, as required by Ohio law or the laws of any other Department where work under this Contract will be done. The Vendor will also maintain employer’s liability insurance with at least a $1,000,000.00 limit. 34. OHIO ETHICS LAW: Vendor agrees that it is currently in compliance and will continue to adhere to the requirements of Ohio Ethics law as provided by Section 102.03 and 102.04 of the Ohio Revised Code. 35. PUBLICITY: The Vendor will not advertise that it is doing business with the Department or use this Contract as a marketing or sales tool without prior, written consent of the Department. This provision includes marketing or sales tools related to the ODOT Cooperative Purchasing Program. 36. STRICT PERFORMANCE: The failure of either party, at any time to demand strict performance by the other party of any of the terms of this Contract, will not be construed as a waiver of any such term and either party may at any time demand strict and complete performance by the other party. 37. SUBCONTRACTING. The Department recognizes that it may be necessary for the Vendor to use subcontractors to perform portions of the work under the Contract. In those circumstances, the Vendor shall submit a list identifying its subcontractors or joint venture partners performing portions of the work under the Contract. If any changes occur during the term of the Contract, the Vendor shall supplement its list of subcontractors or joint venture business partners. In addition, all subcontractors or joint venture business partners agree to be bound by all of the Terms and Conditions and specifications of the Contract. The Department reserves the right to reject any subcontractor submitted by the Vendor. All subcontracts will be at the sole expense of the Vendor and the Vendor will be solely responsible for payment of its subcontractors. The Vendor assumes responsibility for all sub-contracting and third party manufacturer work performed under the Contract. In addition, Vendor will cause all subcontractors to be bound by all of the Terms and Conditions and specifications of the Contract. The Vendor will be the sole point of contact with regard to all contractual matters. 38. SURVIVORSHIP: All sections herein relating to payment, confidentiality, license and ownership, indemnification, publicity, construction warranties, limitations of warranties and limitations on damages shall survive the termination of this Contract. 39. GENERAL REPRESENTATIONS AND WARRANTIES: The Vendor warrants that the recommendations, guidance, and performance of the Vendor under this Contract will: 1. Be in accordance with the sound professional standards and the requirements of this Contract and without any material defect. 2. No services, products or supplies will infringe on the intellectual property rights of any third party. 3. All warranties are in accordance with Vendor’s standard business practices attached. 4. That the products or supplies hereunder are merchantable and fit for the particular purpose described in this contract. Additionally, with respect to the Vendor’s activities under this Contract, the Vendor warrants that: 5. The Vendor has the right to enter into this Contract. 6. The Vendor has not entered into any other contracts or employment relationships that restrict the Vendor’s ability to perform under this Contract. 7. The Vendor will observe and abide by all applicable laws and regulations, including those of the Department regarding conduct on any premises under the Department’s control. 8. The Vendor has good and marketable title to any products or supplies delivered under this Contract and which title passes to the Department. 9. The Vendor has the right and ability to grant the license granted in products or supplies in which title does not pass to the Department. If any services of the Vendor or any products or supplies fails to comply with these warranties, and the Vendor is so notified in writing, the Vendor will correct such failure with all due speed or will refund the amount of the compensation paid for the services, products or supplies. The Vendor will also indemnify the Department for any direct damages and claims by third parties based on breach of these warranties. 40. VENDOR’S WARRANTY AGAINST AN UNRESOLVED FINDING FOR RECOVERY: Vendor warrants that it is not subject to an unresolved finding for recovery under O.R.C. Section 9.24. If the warranty was false on the date the parties signed this Contract, the Contract is void ab initio. 41. LIMITATION OF LIABILITY: Notwithstanding any limitation provisions contained in the documents and materials incorporated by reference into this contract, the Vendor agrees that the Vendor shall be liable for all direct damages due to the fault or negligence of the Vendor. 42. INDEMNITY: The Vendor will indemnify the Department for any and all claims, damages, lawsuits, costs, judgments, expenses, and any other liabilities resulting from bodily injury to any person (including injury resulting in death) or damage to property that may arise out of or are related to Vendor’s performance under this Contract, providing such bodily injury or property damage is due to the negligence of the Vendor, its employees, agents, or subcontractors. Reference 107.12 the Construction & Materials Specification handbook. The Vendor will also indemnify the Department against any claim of infringement of a copyright, patent, trade secret, or similar intellectual property rights based on the Department’s proper use of any products or supplies under this Contract. This obligation of indemnification will not apply where the Department has modified or misused the products or supplies and the claim of infringement, is based on the modification or misuse. The Department agrees to give the Vendor notice of any such claim as soon as reasonably practicable and to give the Vendor the authority to settle or otherwise defend any such claim upon consultation with and approval by the Office of the Department Attorney General. If a successful claim of infringement is made, or if the Vendor reasonably believes that an infringement claim that is pending may actually succeed, the Vendor will take one (1) of the following four (4) actions: 1. Modify the products or supplies so that is no longer infringing; 2. Replace products or supplies with an equivalent or better item; 3. Acquire the right for the Department to use the infringing products or supplies as it was intended for the Department to use under this Contract; or 4. Remove the products or supplies and refund the fee the Department paid for the products or supplies and the fee for any other products or supplies that required the availability of the infringing products or supplies for it to be useful to the Department. 43. AUDITS: The Vendor must keep all financial records in a manner consistent with generally accepted accounting principles. Additionally, the Vendor must keep separate business records for this Contract, including records of disbursements and obligations incurred that must be supported by contracts, invoices, vouchers and other data as appropriate. During the period covered by this Contract