00011290_CDSR_Attach A_Sample Contract_Final.docx

ATTACHMENT A -

IT Professional Services Master Price and Services Agreement SAMPLE WORK ORDER CONTRACT # / (ORBuys PO # ) Independent Quality Management Services for CDSR Contract This Work Order Contract (“Contract”) is entered into on the Effective Date (defined below) by and between the state of Oregon, acting by and through its Department of Transportation (“ODOT” or “Authorized Purchaser”) and Public Knowledge, LLC, (“Consultant”).

RECITALS

AGREEMENT

In consideration of the foregoing recitals and the mutual terms and conditions set forth below, Authorized Purchaser and Consultant agree as follows:

1. INCORPORATION OF MASTER PRICE AND SERVICES AGREEMENT; DEFINITIONS.

This Contract is subject to and incorporates the provisions of the MPSA. Capitalized terms not specifically defined in this Contract are defined in MPSA.

EIS means Enterprise Information Services.

ODOT means Oregon Department of Transportation, also referred to as Authorized Purchaser.

2. TERM. This Contract is effective _______________, or the date on which this Contract is fully executed and approved according to applicable laws, rules and regulations, whichever is later (“Contract Effective Date”) and terminates on October 23, 2025, (“Initial Term”) unless otherwise terminated or extended in accordance with its terms. The parties may extend the term of this Contract, upon written notice given to the other party at least thirty (30) Calendar Days prior to the end of the then current term, for additional one, two or three year terms (“Renewal Terms”), provided, however, that the total term of this Contract will not be more than four (4) years from the Effective Date.

3. PERFORMANCE AND DELIVERY.

3.1 Responsibilities of Consultant. Consultant shall perform the Services for Authorized Purchaser as set forth in the Contract Statement of Work, in accordance with the current, Project Plan and Schedule and the standards and methodologies set forth in the Statement of Work and elsewhere in this MPSA and Contract. Consultant agrees to perform the Services employing a methodology that conforms to the standards established by the Project Management Institute (“PMI”) as described in the Project Management Body of Knowledge (“PMBOK”), most current edition (PMBOK Guide, https://www.pmi.org/pmbok-guide-standards), supplemented by standards set forth in International Standards Organization (“ISO”) standard 12207 as well as standards established for quality assurance and quality management services. EIS statewide policies are found online at:

https://www.oregon.gov/das/oscio/pages/index.aspx Consultant also agrees to perform the Services in accordance with the standards established for consultant performance by the Basecamp Vendor Management Program as set forth in the Contractor Onboarding Guide found at:

http://www.oregon.gov/basecamp/Documents/New_Vendor_Onboarding_Guide_V.1.pdf and the Vendor Management Performance Metrics and Standards attached hereto as Attachment I. The policies, metrics and performance standards may be updated from time to time. DAS shall post notice of any such updates. Consultant shall have thirty (30) days from the date of such notice to object to any change. If Consultant does not object, all changes will be incorporated into this MPSA and Consultant agrees to the revised metrics and standards.

3.2 Responsibilities of Authorized Purchaser. If this Contract requires Authorized Purchaser to provide any resources, and Authorized Purchaser fails to provide the requisite quality or quantity of such resources, or fails to provide such resources in a timely manner for a period that does not exceed thirty (30) Calendar Days, Consultant's sole remedy is an extension of the applicable delivery dates corresponding to the delay caused by Authorized Purchaser. If Authorized Purchaser's failure to provide such resources exceeds thirty (30) Calendar Days and Consultant can show to the reasonable satisfaction of Authorized Purchaser, that the Authorized Purchaser's failure has resulted in an unavoidable increase in the cost of the Services required for the Statement of Work then Consultant will be entitled to recover from Authorized Purchaser the reasonable amount of such increased costs. Consultant's right to delay applicable delivery dates or recover for increased costs may be exercised only if Consultant provides Authorized Purchaser with reasonable notice of Authorized Purchaser's failure and Consultant uses commercially reasonable efforts to perform notwithstanding Authorized Purchaser's failure to perform.

3.3 Delivery and Review of Deliverables.

3.3.1 Consultant shall deliver Deliverables and complete Milestones as set forth in the Statement of Work by no later than the date or dates set for delivery in the Statement of Work. Delivery dates, both critical and non-critical, are set forth in the Statement of Work and are subject to Authorized Purchaser performing its responsibilities in a timely manner. In addition to all other delivery requirements in this Contract, the Consultant shall comply with applicable provisions under ORS 276A.223(5)(a) and DAS Statewide Procedures 107-004-030, Independent Quality Management Services for Information Technology, in delivering copies of any preliminary quality assurance services Deliverable or final Deliverable to the following persons for whom contact information is provided in Exhibit 3:

3.3.1.1 The State Chief Information Officer, or designee;

3.3.1.2 The Director of the Oregon Department of Administrative Services, or designee;

3.3.1.3 The Legislative Fiscal Officer; and

3.3.1.4 Authorized Purchaser’s Director, or designee.

3.3.2 Consultant shall provide written notice to Authorized Purchaser upon delivery of a completed Deliverable to Authorized Purchaser. By no later than (i) fifteen (15) Business Days after receipt of such notice, or (ii) the date set forth for Authorized Purchaser’s review in the current Accepted Project Implementation Plan and Schedule, Authorized Purchaser will determine whether the Deliverable meets Acceptance Criteria set forth in the Contract. Acceptance Criteria includes all requirements for a Deliverable and associated Services described in the Statement of Work, and the Performance Warranties in Section 10. If Authorized Purchaser determines that the Deliverable meets, in all material respects, Acceptance Criteria, Authorized Purchaser will notify Consultant of Authorized Purchaser’s Acceptance in writing.

3.3.3 If the Authorized Purchaser determines that a Deliverable does not meet the Acceptance Criteria in all material respects, Authorized Purchaser will notify Consultant in writing of Authorized Purchaser’s rejection of the Deliverable, and describe in reasonable detail in such notice the Authorized Purchaser’s basis for rejection of the Deliverable. Upon receipt of notice of non-acceptance, Consultant shall, within a fifteen (15) Business Day period, modify or improve the Deliverable at Consultant’s sole expense so that the Deliverable meets, in all material respects, the Acceptance Criteria, and notify the Authorized Purchaser in writing that it has completed such modifications or improvements and re-tender the Deliverable to Authorized Purchaser. Authorized Purchaser will thereafter review the modified or improved Deliverable within fifteen (15) Business Days of receipt of the Consultant's delivery of the Deliverable. Failure of the Deliverable to meet the Acceptance Criteria in all material respects after the second submission will constitute a default by Consultant. In the event of such default, Authorized Purchaser may either (i) notify Consultant of such default and instruct Consultant to modify or improve the Deliverables as set forth in this section 3.3.3, or (ii) notify Consultant of such default and pursue its remedies for default under Section 16 of this Contract.

3.3.4 Final Acceptance. “Final Acceptance” means Authorized Purchaser has Accepted all Deliverables and Change Orders in accordance with Section 3.3.

3.3.5 Transition Services. Consultant shall provide transition services to support a responsible and secure transition of Services and Authorized Purchaser data to another service provider or to Authorized Purchaser (“Transition Services”).

3.3.5.1 Upon receipt of a notice prior to expiration that Authorized Purchaser will engage Consultant’s Transition Services, or receipt of notice of termination and notwithstanding the reason for termination (whether for cause or without cause and whether by Consultant or Authorized Purchaser, and whether for all or some Services), Consultant shall continue to provide Services and shall provide Transition Services as described in the Transition Plan (defined below) for the period (the “Transition Period”) set in the notice and in the subsequent Transition Plan, on the following conditions:

3.3.5.2 Authorized Purchaser is up-to-date with its undisputed payment obligations at the commencement of the Transition Period, and

3.3.5.3 Authorized Purchaser pays all undisputed invoices during the Transition Period in accordance with its obligations referenced in Section 6.

3.3.6 If during the Transition Period Consultant believes Authorized Purchaser is not in compliance with the foregoing conditions, Consultant shall give Authorized Purchaser written notice of such noncompliance and Authorized Purchaser will have fifteen (15) Business Days, or such longer period to which the parties may agree, to correct the noncompliance before Consultant may end the Transition Period and move to the Wind-Down Phase described below.

3.3.7 Following receipt of the notice of termination (whether or not Consultant or Authorized Purchaser initiated the termination), Consultant shall not, without Authorized Purchaser’s prior written consent, which will not be unreasonably withheld, transfer, reassign, or otherwise redeploy any of Consultant’s personnel from providing Services under this Contract.

3.3.8 Transition Plan. Consultant and Authorized Purchaser will outline a Transition Plan, which may be requested pursuant to a notice of termination or in anticipation of the Contract terminating in accordance with its terms. The Transition Plan must address at least:

1. The respective Tasks and Deliverables to be completed by each party in connection with the Transition Plan,

2. A schedule pursuant to which such Tasks and Deliverables will be completed, and

3. A schedule identifying which party is responsible for paying the cost (if any) related to each Task and Deliverable. This schedule may include Transition Services that will not exceed the current Contract NTE. If the parties agree Transition Services require new or additional Services that cause an increase in the Contract NTE, the Transition Plan will be in the form of a Contract amendment.

3.3.9 The parties will cooperate in good faith with each other in connection with their obligations under this Section 3.3 and will perform their obligations under the Transition Plan. If the Transition Period extends beyond the Contract term, the provisions of this Contract will remain in effect for the duration of the Transition Period and will apply to all Services provided by Consultant during such period.

3.3.10 Consultant shall complete the transition of any the Services from Consultant and its subcontractors to Authorized Purchaser and to any providers that Authorized Purchaser designates, without causing any unnecessary interruption of or adverse impact on the Services.

3.3.11 Without limiting the generality of the aforementioned obligations, Consultant shall:

1. Cooperate with Authorized Purchaser and any Authorized Purchaser-designated provider by promptly taking all steps required to assist Authorized Purchaser in completing the Transition related to the Services it had previously performed and Deliverables previously delivered.

2. Provide Authorized Purchaser and any Authorized Purchaser-designated provider with all information regarding the Services and Deliverables that these parties will need to perform the Transition.

3. Promptly and orderly conclude all Services as Authorized Purchaser may direct. This may include the documentation of work in progress and other measures to provide an orderly transition to Authorized Purchaser and any Authorized Purchaser-designated provider.

3.3.12 Wind-Down. Upon the later of (a) the termination of this Contract or (b) termination of the Transition Period, Consultant will cease to perform Services, and Authorized Purchaser will pay Consultant all amounts payable to Consultant for Deliverables and Services delivered, and pre-approved expenses incurred through the end of the Contract or Transition Period; provided, however, when such termination is due to the breach or bankruptcy of Consultant, Authorized Purchaser will not be required to pay any amounts claimed by Consultant to be due until Authorized Purchaser determines what, if any, setoffs are required and the remedies owed to Authorized Purchaser are either agreed upon by Consultant through a settlement or ordered by a court of competent authority.

4. CONSULTANT’S PERSONNEL.

4.1. Key Persons. Consultant acknowledges and agrees that Authorized Purchaser selected Consultant, and is entering into this Contract, because of the special qualifications of Consultant's Key Persons identified in Exhibit 3.

4.2. Project Manager. Consultant shall designate one of the Key Persons as Project Manager of the Services. The Project Manager shall be familiar with Authorized Purchaser’s business operations and objectives, shall perform the Services in accordance with the warranties in the MPSA and this Contract. The Project Manager will participate with Authorized Purchaser in periodic review sessions and will provide at Authorized Purchaser’s request, detailed progress reports that identify completed tasks and the status of the remaining Services.

4.3. Consultant’s other staff. Consultant’s other staff are listed on Exhibit 3.

5. NO PARTNERSHIP; TAXES AND WITHHOLDING.

5.1. No Partnership. This Contract is not intended, and will not be construed, to create a partnership or joint venture between Authorized Purchaser and Consultant. Nothing in this Contract will be construed to make Authorized Purchaser and Consultant partners or joint venture participants.

5.2. Declaration and Certification. Consultant by execution of this Contract declares and certifies that (i) its performance of the Services creates no potential or actual conflict of interest as defined by ORS Chapter 244, for Consultant or any Consultant personnel who will perform Services under this Contract, and (ii) in the event that Consultant or its personnel are either employed by or performing services for the federal government, that no rules or regulations of the Authorized Purchaser for which Consultant or its personnel work or are employed prohibit Consultant or its personnel from providing the Services under this Contract. Consultant also declares and certifies by execution of this Contract that it is not an “officer,” “employee,” or “agent” of Authorized Purchaser, as those terms are used in ORS 30.265. Further, if Consultant is providing independent quality management services for Authorized Purchaser pursuant to this Contract, Consultant shall not provide any other services to Authorized Purchaser related to this project or transaction.

5.3. Responsible for Taxes. Consultant shall be responsible for all federal and state taxes applicable to compensation and other payments paid to Consultant under this Contract and, unless Consultant is subject to backup withholding, Authorized Purchaser will not withhold from such compensation and payments any amount to cover Consultant’s federal or state tax obligations. Consultant is not eligible for any social security, unemployment insurance, or workers’ compensation benefits from compensation or payments paid to Consultant under this Contract, except as a self-employed individual.

6. COMPENSATION.

6.1. Maximum Payment Amount. Notwithstanding any other provision of this Contract to the contrary, the maximum, not-to-exceed compensation that Authorized Purchaser will pay to Consultant is $547,600 (the “Maximum Not-To-Exceed Compensation”), as set forth in Exhibit 1, which includes payment for any allowable expenses for which Consultant may request reimbursement under this Contract.

6.2. Payments. Payments are subject to Section 6.3 and 6.6.

6.3. Retention Amount. Authorized Purchaser may hold back an amount (the " Retention Amount") of not more than ten percent (10%) of any amount that is payable by Authorized Purchaser to Consultant. Authorized Purchaser will pay the then-accrued Retention Amount to Consultant within thirty (30) Calendar Days following Final Acceptance.

6.4. Expenses. Authorized Purchaser will not pay or reimburse any expenses incurred by Consultant during the completion of the Services except as authorized in the Statement Work, Exhibit 1. Any such authorized travel expenses must comply with the Oregon Travel Policy.

6.5. Invoices. Authorized Purchaser will pay Consultant not more than once each month upon Consultant’s submission of a detailed invoice that sets forth the Services performed and Deliverables Accepted by Authorized Purchaser. Such invoices must comply with the requirements of Sections 6.2, 6.3, and 6.4, identify the Deliverables completed and Accepted for which Consultant seeks compensation including applicable rates and number of hours per person providing Services for each Deliverable, and itemize and explain all authorized expenses for which reimbursement is claimed. The invoices must also include the total amount invoiced to date by Consultant prior to the current invoice. Consultant shall submit invoices to Authorized Purchaser’s Authorized Representative. Authorized Purchaser will have the right to review each such invoice for compliance with the requirements of this section and any other relevant provisions of this Contract. All payments to Consultant are subject to ORS 293.462.

6.6. Limit on Payments. Consultant shall not submit invoices for, and Authorized Purchaser will not pay, any amount in excess of the Maximum Not-To-Exceed Compensation. If this maximum amount is increased by amendment of this Contract, pursuant to Section 9 of the MPSA, the amendment must be fully effective before Consultant performs Services or delivers goods subject to the amendment. No payment will be made for any Services performed or goods delivered before the Effective Date or after termination of this Contract.

6.7. Funds Available and Authorized. Consultant will not be compensated for Services performed under this Contract by any other agency or department of the State of Oregon. Authorized Purchaser believes it has sufficient funds currently available and authorized for expenditure to finance the costs of this Contract within Authorized Purchaser’s biennial appropriation or limitation. Consultant understands and agrees that Authorized Purchaser’s payments under this Contract are contingent on Authorized Purchaser receiving appropriations, limitations, or other expenditure authority sufficient to allow Authorized Purchaser, in the exercise of its reasonable administrative discretion, to continue to make payments under this Contract.

7. AMENDMENT AND CHANGE CONTROL.

7.1 Amendments. This Contract may be amended, modified, or supplemented only by a written amendment signed by Authorized Purchaser and Consultant that, if required by applicable law, has been approved by DAS and for legal sufficiency by DOJ. Any amendment that provides for additional goods or Services may only provide for goods or Services directly related to the scope of goods and Services described in the RFP, and no amendment will be effective until all requisite signatures and approvals are obtained. Either Authorized Purchaser or Consultant may request a change to this Contract, including all Exhibits hereto, by submitting a written proposal describing the desired change to the other party.

7.2 Change Control. Subject to the conditions above, amendments to the Statement of Work and related costs may be managed through an Authorized Purchaser-authorized change control process that reflects at least the processes described in this section. Either Authorized Purchaser or Consultant may request a change by submitting a written proposal describing the requested change to the other party. Authorized Purchaser’s and Consultants’ Authorized Representatives will review the written change request and either mutually approve it for further analysis or reject it.

7.2.1 Analysis of Change Requests; Change Orders. The parties will analyze each change request (that has not been rejected) in accordance with the authorized change control process to determine the effect that the implementation of the change will have on the Statement of Work and related costs. If the analyzed change request is mutually approved, the agreed-upon party will prepare a written change order, detailing all modifications to the Statement of Work and related costs (the “Change Order”). A Change Order at a minimum must contain:

1. The effective date of the Change Order;

2. A detailed description of the Services to be performed under the Change Order;

3. The particular Task or Deliverable in the Contract which will be altered, and the precise scope of that alteration;

4. Whether the Change Order modifies critical path Deliverables or Milestones;

5. Any change in the cost of the Services to be performed pursuant to the Change Order; and

6. The cumulative cost changes of all Change Orders previously issued.

7.2.2 A Change Order may alter only that portion of the Statement of Work and related costs to which it expressly relates and must not otherwise affect the terms and conditions of this Contract. Both parties must sign the Change Order to authorize the Services described therein and incorporate the changes into this Contract. No Services may be performed pursuant to the Change Order and no payment will be made on account of the Change Order until the Change Order is fully executed and all required State of Oregon approvals are received.

7.2.3 Payments. Subject to the foregoing provisions of this Section and performance of the Services, Authorized Purchaser will pay for Services performed pursuant to a Change Order according to the acceptance and payment procedures set forth in this Contract.

8. OWNERSHIP AND LICENSE IN DELIVERABLES.

8.1. Authorized Purchaser Intellectual Property; Data and Background Information. Authorized Purchaser owns all Authorized Purchaser Intellectual Property and Authorized Purchaser data and background information provided to Consultant pursuant to this Contract. Authorized Purchaser grants Consultant a non-exclusive, royalty-free, world-wide license to use, copy, display, distribute, transmit and prepare derivative works of Authorized Purchaser Intellectual Property, Authorized Purchaser data and background information, and Work Product only to fulfill the purposes of this Contract. Authorized Purchaser’s license to Consultant is limited by the term of the Contract and the confidentiality obligations of this Contract.

8.2. No Rights. Except as expressly set forth in this Contract, nothing in this Contract may be construed as granting to or conferring upon Consultant any right, title, or interest in any intellectual property that is now owned or subsequently owned by Authorized Purchaser. Except as expressly set forth in this Contract, nothing in this Contract may be construed as granting to or conferring upon Authorized Purchaser any right, title, or interest in any Consultant Intellectual Property that is now owned or subsequently owned by Consultant.

8.3. Neither party grants the other the right to use its trademarks, trade names, service marks or other designations in any promotion or publication without prior written consent. Each party grants only the licenses and rights specified in this Contract.

9. CONSULTANT’S DUTIES CONFIDENTIALITY AND NON-DISCLOSURE.

9.1. Confidential Information. Consultant acknowledges that it and its employees or agents may, in the course of performing the Services under this Contract, be exposed to or acquire information that is confidential to Authorized Purchaser or Authorized Purchaser’s clients. Any and all information of any form obtained by Consultant or its employees or agents in the performance of this Contract is deemed to be confidential information of Authorized Purchaser (“Confidential Information”). Consultant shall treat any reports or other documents or items (including software) that result from the use of the Confidential Information in the same manner as the Confidential Information. Confidential Information does not include information that (i) is or becomes (other than by disclosure by Consultant) publicly known; (ii) is furnished by Authorized Purchaser to others without restrictions similar to those imposed by this Contract; (iii) is rightfully in Consultant’s possession without the obligation of nondisclosure prior to the time of its disclosure under this Contract; (iv) is obtained from a source other than Authorized Purchaser without the obligation of confidentiality, (v) is disclosed with the written consent of Authorized Purchaser, or; (vi) is independently developed by employees, agents or subcontractors of Consultant who can be shown to have had no access to the Confidential Information.

9.2. Non-Disclosure. Consultant shall hold Confidential Information in confidence, using the highest standard of care applicable, and shall not copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give, or disclose Confidential Information to third parties (other than its authorized subcontractors), or use Confidential Information for any purposes whatsoever other than the provision of Services to Authorized Purchaser hereunder, and shall advise each of its employees and agents of their obligations to keep Confidential Information confidential. Consultant shall assist Authorized Purchaser in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the generality of the foregoing, Consultant shall advise Authorized Purchaser immediately in the event Consultant learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Contract, and Consultant will at its expense cooperate with Authorized Purchaser in seeking injunctive or other equitable relief in the name of Authorized Purchaser or Consultant against any such person. Consultant shall not at any time during or after the term of this Contract, except as directed by Authorized Purchaser, disclose, directly or indirectly, any Confidential Information to any person, except in accordance with this Contract, and that upon termination of this Contract or at Authorized Purchaser’s request, Consultant shall deliver to Authorized Purchaser all documents, papers, and other matter in Consultant's possession that embody Confidential Information. Notwithstanding the foregoing and unless otherwise specified in this Contract, Consultant may keep one copy of such Confidential Information necessary for quality assurance, audits and evidence of performance of the Services.

9.3 Security Policies / Non-Disclosure Agreement / Criminal Background Check. Consultant shall comply at all times with Authorized Purchaser’s security policies attached hereto as Exhibit 4 or otherwise made available to Consultant.

9.4 Injunctive Relief. Consultant acknowledges that breach of this Section 9, including disclosure of any Confidential Information, will cause irreparable injury to Authorized Purchaser that is inadequately compensable in damages. Accordingly, Authorized Purchaser may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies that may be available. Consultant acknowledges and agrees that the covenants contained herein are necessary for the protection of the legitimate business interests of Authorized Purchaser and are reasonable in scope and content.

10. CONSULTANT’S REPRESENTATIONS AND WARRANTIES. In addition to the representations and warranties in the MPSA Consultant represents and warrants to Authorized Purchaser that:

10.1 Consultant has the skill and knowledge possessed by well-informed members of its trade or profession and Consultant will apply that skill and knowledge with care and diligence so Consultant and Consultant’s employees and any authorized subcontractors perform the Services described in this Contract in accordance with the highest standards prevalent in the industry or business most closely involved in providing the Services that Consultant is providing to Authorized Purchaser pursuant to this Contract.

10.2 Consultant shall comply with the standards established by the PMI as described in the PMBOK, Current Edition, the Software Engineering Institute and the Control Objectives for Information and related Technology (“COBIT®”) objectives, as well as standards established by DAS for quality assurance services.

10.3 Consultant shall comply with the applicable requirements set forth in DAS Oregon Statewide IT and Information Security Policies, found at:

http://www.oregon.gov/DAS/op/Pages/policies.aspx, as those policies are amended from time to time. In the event of a DAS IT Policy amendment that impacts the System or the Services, the required change will be managed according to the Change Control process in Section 7 of this Contract.

10.4 Except as otherwise set forth in this Contract, any subcontractors performing work for Consultant under this Contract have assigned all of their rights in the Deliverables to Consultant or Authorized Purchaser and no third party has any right, title or interest in any Deliverables supplied to Authorized Purchaser under this Contract.

10.5 Consultant will maintain, operate and enforce, prior to the receipt of, and during the period in which Consultant has possession of or access to, any Personal Information, an active and effective information security program that at minimum complies with the requirements of the Oregon Identity Theft Protection Act (ORS 646A. 122 et. seq.) to preserve the security and confidentiality of all Personal Information that is contained in any document, record, compilation of information or other item to which Consultant receives access, possession, custody or control.

WARRANTIES EXCLUSIVE; DISCLAIMERS. THE WARRANTIES SET FORTH IN THIS CONTRACT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, AND CONSULTANT EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.

11. INDEMNITIES.

11.1. General Indemnity. Consultant shall defend, save, hold harmless, and indemnify the State of Oregon and Authorized Purchaser and their officers, employees and agents from and against all third party claims, suits, actions, losses, damages, liabilities, statutory penalties, costs and expenses of any nature whatsoever, including personal injury, death, damage to real property and damage to tangible or intangible personal property resulting from, arising out of, or relating to the intentional, reckless or negligent acts or omissions of Consultant or its officers, employees, subcontractors, or agents under this Contract, including: (i) any claim that Consultant, a subcontractor, or Consultant’s staff or a subcontractor’s staff are employees of the State or Authorized Purchaser for any reason, and (ii) any claim against the State or Authorized Purchaser, which, if true, would constitute a breach by Consultant of any of the representations, warranties, or covenants set forth in this Contract. Without limiting the generality of the foregoing, Consultant will have no obligation to indemnify Authorized Purchaser or the State of Oregon from and against any claims, suits, actions, losses, damages, liabilities, costs and expenses attributable solely to the acts or omissions of Authorized Purchaser or the State of Oregon, and their officers, employees or agents.

11.2. Control of Defense and Settlement. Consultant’s obligation to indemnify Authorized Purchaser as set forth in Section 11.1 is conditioned on Authorized Purchaser providing to Consultant prompt notification of any claim or potential claim of which Authorized Purchaser becomes aware that may be the subject of those Sections. Consultant will have control of the defense and settlement of any claim that is subject to Section 11.1; however, neither Consultant nor any attorney engaged by Consultant will defend the claim in the name of the State of Oregon or any agency of the State of Oregon, nor purport to act as legal representative of the State of Oregon or any of its agencies, without the approval of the Attorney General, nor will Consultant settle any claim on behalf of the State of Oregon without the approval of the Attorney General. The State of Oregon may, at its election and expense, assume its own defense and settlement in the event that the State of Oregon determines that Consultant is prohibited from defending the State of Oregon, is not adequately defending the State of Oregon’s interests, or that an important governmental principle is at issue and the State of Oregon desires to assume its own defense.

11.3. Damages to Authorized Purchaser Property and Employees. Consultant shall be liable for all claims, suits, actions, losses, damages, liabilities, costs and expenses for personal injury, including death, damage to real property and damage to tangible personal property of the State of Oregon or any of its employees resulting from, arising out of, or relating to the intentional, reckless or negligent acts or omissions of Consultant or its officers, employees, subcontractors or agents under this Contract.

11.4. Data and Network Services. Except to the extent that a claim or loss results from the negligent, reckless or intentional acts or omissions of Authorized Purchaser, Consultant shall assume liability for all claims or losses related to data loss or breach of security caused directly or indirectly by or resulting from the Services provided by Consultant.

11.5. Insurance. If applicable and required by Authorized Purchaser, Consultant shall provide such additional insurance or self-insurance as required by Exhibit 2.

12. EVENTS OF DEFAULT.

12.1. Default by Consultant. Consultant will be in default under this Contract if:

12.1.1. Consultant institutes or has instituted against it insolvency, receivership or bankruptcy proceedings which are not dismissed within sixty (60) Calendar Days of their commencement, makes an assignment for the benefit of creditors, or ceases doing business on a regular basis; or

12.1.2. Consultant no longer holds a license or certificate that is required for Consultant to perform the Services and Consultant has not obtained such license or certificate within thirty (30) Calendar Days after delivery of Authorized Purchaser’s notice or such longer period as Authorized Purchaser may specify in such notice; or

12.1.3. Consultant commits any material breach of any covenant, warranty, obligation or certification under this Contract, fails to perform the Services in conformance with the specifications and warranties provided herein, or clearly manifests an intent not to perform future obligations under this Contract, and such breach or default is not cured, or such manifestation of an intent not to perform is not corrected by reasonable written assurances of performance within thirty (30) Calendar Days after delivery of Authorized Purchaser’s notice or such longer period as Authorized Purchaser may specify in such notice.

12.2. Default by Authorized Purchaser. Authorized Purchaser will be in default under this Contract if:

12.2.1. Authorized Purchaser fails to pay Consultant any amount pursuant to the terms of this Contract, and Authorized Purchaser fails to cure such failure within thirty (30) Calendar Days after delivery of Consultant’s notice or such longer period as Consultant may specify in such notice; or

12.2.2. Authorized Purchaser commits any material breach or default of any covenant, warranty, or obligation under this Contract, fails to perform its commitments hereunder within the time specified or any extension thereof, and Authorized Purchaser fails to cure such failure within thirty (30) Calendar Days after delivery of Consultant’s notice or such longer period as Consultant may specify in such notice.

13. REMEDIES FOR DEFAULT.

13.1. Authorized Purchaser’s Remedies. In the event Consultant is in default under Section 12, Authorized Purchaser may, at its option, pursue any or all of the remedies available to it under this Contract and at law or in equity, which include, without limitation:

13.1.1. Stopping work under this Contract;

13.1.2. Termination of this Contract;

13.1.3. Withholding or offsetting payment for erroneous invoices or for Services that Consultant is obligated but has failed to perform in accordance with this Contract;

13.1.4. Exercise of its right of setoff.

13.2. Remedies Cumulative. These Authorized Purchaser remedies are cumulative to the extent the remedies are not inconsistent, and Authorized Purchaser may pursue any remedy or remedies singly, collectively, successively or in any order whatsoever.

13.3. Consultant’s Remedies. In the event Authorized Purchaser is in default under Section 12.2 and whether or not Consultant elects to exercise its right to terminate the Contract, Consultant’s sole monetary remedy will be a claim for (i) any unpaid invoices for Deliverables completed, delivered and Accepted; and, (ii) for incomplete Deliverables an amount calculated by determining the percentage of Services completed for each unpaid Deliverable and applying that percentage to the fixed price for the Deliverable as set forth in the Statement of Work and any authorized expenses incurred. If previous amounts paid to Consultant exceed the amount due to Consultant under this section, Consultant shall pay any excess to Authorized Purchaser upon written demand.

14. TERMINATION.

14.1. Authorized Purchaser’s Right to Terminate. Authorized Purchaser may, at its sole discretion, terminate this Contract, as follows:

14.1.1. Authorized Purchaser may terminate this Contract upon at least thirty (30) Calendar Days prior written notice to Consultant.

14.1.2. Authorized Purchaser may terminate this Contract if Authorized Purchaser fails to receive funding, appropriations, limitations or other expenditure authority at levels sufficient to pay for Consultant’s Services;

14.1.3. Authorized Purchaser may terminate this Contract if federal or state laws, regulations, or guidelines are modified or interpreted in such a way that the performance of the Services under this Contract is prohibited or Authorized Purchaser is prohibited from paying for such Services from the planned funding source;

14.2. Authorized Purchaser’s Right to Terminate for Cause. In addition to any other rights and remedies Authorized Purchaser may have under this Contract, Authorized Purchaser may terminate this Contract, in whole or in part, immediately upon written notice to Consultant of Consultant’s default.

14.3. Consultant’s Right to Terminate for Cause. Consultant may terminate this Contract upon Authorized Purchaser’s default.

14.4. Mutual Termination. The parties may agree to terminate this Contract upon written agreement.

14.5. Return of Property. Upon termination of this Contract for any reason whatsoever, Consultant shall immediately deliver to Authorized Purchaser all of Authorized Purchaser’s property (including without limitation Authorized Purchaser’s Confidential Information or any Deliverables for which Authorized Purchaser has made payment in whole or in part) that are in the possession or under the control of Consultant in whatever stage of development and form of recordation such Authorized Purchaser property is expressed or embodied at that time. Any property or Deliverable returned or delivered to Authorized Purchaser pursuant to this section may be provided without the warranties, unless the Deliverable is Accepted.

15. Stop-Work Order. Authorized Purchaser may, at any time, by written notice to Consultant, require Consultant to stop all or any part of the work required by this Contract for a period of up to ninety (90) Calendar Days after the date of the notice, or for any further period to which the parties may agree through a duly executed amendment. Upon receipt of the notice, Consultant shall immediately comply with the Stop-Work Order terms and take all necessary steps to minimize the incurrence of costs allocable to the work affected by the Stop Work Order notice. Within a period of ninety (90) Calendar Days after issuance of the written notice, or within any extension of that period to which the parties have agreed, Authorized Purchaser will either:

a. Cancel or modify the Stop Work Order by a supplementary written notice; or

b. Terminate the work.

If the Stop Work Order is canceled, Authorized Purchaser may, after receiving and evaluating a request from Consultant, make an adjustment in the time required to complete this Contract and the Contract price by a duly executed amendment, inclusive of any ramp-up time required for Consultant to resume Services.

16. COMPLIANCE WITH APPLICABLE LAW.

16.1. Compliance with Law Generally. In addition to the compliance provisions in the MPSA, Consultant shall comply with all of Authorized Purchaser’s laws, rules, and ordinances.

16.2. Tax Compliance. As set forth on Exhibit E of the MPSA, Consultant has complied with the tax laws of this state and the applicable tax laws of any political subdivision of this state. Consultant shall, throughout the duration of this Contract and any extensions, comply with all tax laws of this state and all applicable tax laws of any political subdivision of this state. For the purposes of this Section, “tax laws” includes: (i) All tax laws of this state, including but not limited to ORS 305.380(4), ORS 305.620 and ORS chapters 316, 317, and 318; (ii) Any tax provisions imposed by a political subdivision of this state that applied to Consultant, to Consultant’s property, operations, receipts, or income, or to Consultant’s performance of or compensation for any work performed by Consultant; (iii) Any tax provisions imposed by a political subdivision of this state that applied to Consultant, or to goods, services, or property, whether tangible or intangible, provided by Consultant; and (iv) Any rules, regulations, charter provisions, or ordinances that implemented or enforced any of the foregoing tax laws or provisions.

Any violation of this subsection 16.2 constitutes a material breach of this Contract. Further, any violation of Consultant’s warranty set forth in Exhibit E of the MPSA also shall constitute a material breach of this Contract. Any violation shall entitle DAS or Authorized Purchaser, as applicable to terminate this Contract, to pursue and recover any and all damages that arise from the breach and the termination of this Contract, and to pursue any or all of the remedies available under this Contract, as applicable at law, or in equity, including but not limited to:

1. Termination of this Contract, as applicable in whole or in part;

2. Exercise of the right of setoff, and withholding of amounts otherwise due and owing to Consultant, in an amount equal to Authorized Purchaser’s setoff right, without penalty; and

3. Initiation of an action or proceeding for damages, specific performance, declaratory or injunctive relief. Authorized Purchaser may recover any and all damages suffered as the result of Consultant's breach of this Contract, as applicable, including but not limited to direct, indirect, incidental and consequential damages, costs of cure, and costs incurred in securing replacement Services and applications.

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

17. DISPUTE RESOLUTION; LITIGATION.

17.1 Dispute Resolution. In the event that the parties have any disagreement, dispute, breach or claim of breach, non-performance, or repudiation arising from, related to or in connection with this Contract or any of the terms or conditions thereof, or any transaction hereunder including but not limited to either party’s failure or alleged failure to comply with any of the provisions of the Contract (hereinafter collectively the “Dispute”), other than one related to the release of Confidential Information, the parties shall first conduct the following procedure in an attempt to resolve the Dispute:

1. The parties shall make every effort to settle any Dispute through their respective managers, within five (5) Calendar Days of one party notifying the other party of a Dispute.

2. If the Dispute is not resolved between the managers, then either party may initiate formal dispute resolution discussions by advising the other party in writing. The contact point for these discussions shall be the parties’ Authorized Representatives. The parties shall attempt to resolve the Dispute within five (5) Calendar Days of the notice from a party that they are initiating this second level of Dispute resolution discussions. If the parties mutually agree in writing that there has been substantial progress toward resolution of the Dispute, this second level may be extended for an additional five (5) Business Day period which shall commence at the conclusion of the first five (5) Business Day period.

3. If the Dispute is not resolved between the Authorized Representatives, then either party may initiate formal dispute resolution discussions by advising the other party in writing. The contact point for these discussions shall be the DAS Contract Manager and Consultant’s Authorized Representative. The parties shall attempt to resolve the Dispute within five (5) Calendar Days of the notice from a party that they are initiating this second level of Dispute resolution discussions. If the parties mutually agree in writing that there has been substantial progress toward resolution of the Dispute, this second level may be extended for an additional five (5) Business Day period which shall commence at the conclusion of the first five (5) Business Day period.

4. If the parties are unable to resolve the Dispute, the parties may file suit as set forth below.

Nothing in this section 17.1: (a) will in any way limit a party’s rights to seek injunctive relief of any kind, at any time, with respect to any matter; (b) in any way limit Authorized Purchaser’s or Consultant’s right to suspend or terminate the Contract or pursue other remedies available under the Contract, by law or otherwise; (c) remove the requirement to provide notices or filings to meet deadlines otherwise required by law; or (d) constitute a waiver of the sovereign immunity of the State of Oregon.

17.2 Litigation. Any claim, action, suit, or proceeding (collectively, “Claim”) between Authorized Purchaser (or any other agency or department of the State of Oregon) and Consultant that arises from or relates to this Contract must be brought and conducted solely and exclusively within the Circuit Court of Marion County for the State of Oregon; provided, however, if a Claim must be brought in a federal forum, then it must be brought and conducted solely and exclusively within the United States District Court for the District of Oregon. CONSULTANT BY EXECUTION OF THIS CONTRACT HEREBY CONSENTS TO THE IN PERSONAM JURISDICTION OF THE COURTS REFERENCED IN THIS SECTION 17. In no event may this section be construed as (i) a waiver by the State of Oregon of any form of defense or immunity, whether sovereign immunity, governmental immunity, immunity based on the eleventh amendment to the Constitution of the United States or otherwise, from any claim or (ii) consent by the State of Oregon to the jurisdiction of any court.

18. GOVERNING LAW. This Contract is governed by and construed according to the laws of the State of Oregon without regard to principles of conflict of laws.

19. ORDER OF PRECEDENCE. This Contract consists of the following documents that are listed in descending order of precedence:

1) The terms and conditions of the MPSA and its Attachments pursuant to the Order of Precedence therein;

2) The terms and conditions of this Contract, less its Exhibits;

3) Exhibit 1, Statement of Work;

4) Exhibit 2, Additional Insurance, if any;

5) Exhibit 3, Consultant Personnel and Authorized Purchaser Personnel; and

6) Exhibit 4, Security Policies The aforementioned Exhibits are by this reference incorporated into this Contract. To the extent provisions contained in more than one of the foregoing documents apply in any given situation, the parties agree: (i) to read such provisions together whenever possible to avoid conflict, and (ii) to apply the foregoing order of precedence only in the event of an irreconcilable conflict.

20. RECYCLING. To the maximum extent economically feasible in the performance of the Contract Consultant shall use recycled paper (as defined in ORS 279A.010(1)(gg)), recycled PETE products (as defined in ORS 279A.010(1)(hh)), and other recycled plastic resin products and recycled…