21-014 Attachment A - Sample Agreement.pdf

ATT A

AGENCY #21-014-X

STATE OF OREGON

PREQUALIFIED LIST AGREEMENT FOR STATE ENERGY EFFICIENT DESIGN ENERGY

ANALYST SERVICES

This “Prequalified List Agreement for Energy Analyst Services” (the “Agreement”) is between the State of Oregon, acting by and through its Department of Energy, hereafter called “Agency” and:

Company: Contract #:

Address:

City, State Zip: Email:

Phone: Federal Tax ID #:

hereafter called “Energy Analyst.” Collectively Agency and Energy Analyst are referred to as the “Parties.”

The purpose of this Agreement is to ensure that energy analyst firms qualified under RFQ #21-014 maintain the qualifications needed to provide Energy Analyst Services. The services of an Energy Analyst are required for all State Energy Efficient Design (SEED) Class 1 building projects.

Agency is required to establish a list of prequalified Energy Analysts for the SEED program (OAR 330-130-0090).

This list will provide state agencies with a source for prequalified Energy Analysts firms that have experience and expertise in energy consumption analysis. State agencies must only select persons or firms that are qualified to perform energy consumption analysis by choosing from the prequalified list or by ensuring that the Energy Analyst meets the requirements of SEED Guidelines, Appendix C, and obtains ODOE approval prior to award.

This Agreement does not guarantee that any contracts will be awarded to Energy Analyst by Contracting Agencies.

This Agreement shall become effective on the date the Agreement is signed by the Parties and all required state of Oregon approvals have been obtained (the “Effective Date”). Unless otherwise terminated or extended, this Agreement shall expire two years from its Effective Date. The Agreement may be renewed for up to one, two-year period, at Energy Analyst’s request and AGENCY’s discretion.

This Agreement consists of this document and the following, which are incorporated into this Agreement:

EXHIBIT A: Standard Terms & Conditions EXHIBIT B: Scope of Services EXHIBIT C: Qualified Personnel Request for Qualifications (RFQ) #21-014 Energy Analyst’s Proposal

In the event of a conflict between two or more of the documents comprising this Agreement, the language in the document with the highest precedence shall control. The precedence of each of the documents comprising this Agreement is as follows, listed from highest precedence to lowest precedence: this Agreement without exhibits, Exhibit A, Exhibit B, the Request for Qualifications (RFQ), Energy Analyst’s Submission.

THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES ON THE SUBJECT MATTERS ADDRESSED HEREIN. THE TERMS OF THIS AGREEMENT CANNOT BE WAIVED, ALTERED, MODIFIED, SUPPLEMENTED OR AMENDED, IN ANY MANNER WHATSOEVER, EXCEPT BY WRITTEN INSTRUMENT SIGNED BY THE PARTIES AND CONTAINING ALL REQUIRED STATE OF OREGON APPROVALS. ANY SUCH WAIVER, ALTERATION, MODIFICATION, SUPPLEMENTATION OR AMENDMENT SHALL BE EFFECTIVE ONLY IN THE SPECIFIC INSTANCE AND FOR THE SPECIFIC PURPOSE GIVEN. THERE ARE NO UNDERSTANDINGS, AGREEMENTS, OR REPRESENTATIONS, ORAL OR WRITTEN, REGARDING THIS AGREEMENT EXCEPT AS CONTAINED, INCORPORATED OR REFERENCED HEREIN. ENERGY ANALYST, BY THE SIGNATURE BELOW OF ITS AUTHORIZED REPRESENTATIVE, HEREBY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS THIS AGREEMENT, AND AGREES TO BE BOUND BY ALL OF THIS AGREEMENT’S TERMS AND CONDITIONS. THIS AGREEMENT, AND ANY

AMENDMENTS TO IT, MAY BE EXECUTED IN COUNTERPARTS (EACH OF WHICH SHALL BE AN ORIGINAL AND ALL OF WHICH SHALL CONSTITUTE BUT ONE AND THE SAME INSTRUMENT) OR IN MULTIPLE ORIGINALS. A FAXED FORM OF THIS AGREEMENT OR ANY AMENDMENT THERETO, EXECUTED BY ONE OR MORE OF THE PARTIES, WILL CONSTITUTE A COUNTERPART HEREOF, AS LONG AS THE COUNTERPART BEARING THE PARTY’S ORIGINAL SIGNATURE IS PROMPTLY TRANSMITTED TO THE OTHER PARTY AND RECEIVED BY THAT PARTY FORTHWITH.

Agreed To and Signed By:

Energy Analyst: Date:

Name/ Title

Agency: Date:

Janine Benner, Director

Date:

Danae Hammitt, Designated Procurement Officer

Date:

Alan Zelenka, Division Administrator

EXHIBIT A

STANDARD TERMS & CONDITIONS

1. Energy Analyst’s Responsibilities; Representations and Warranties.

1.1. Energy Analyst agrees that:

1.1.1. The phrase “Standard of Care” that is used in this Agreement is defined as follows: the same professional skill, care, diligence and standards as other professionals performing similar services under similar conditions (the “Standard of Care”);

1.1.2. Energy Analyst shall perform all services in accordance with the Standard of Care;

1.1.3. Energy Analyst shall prepare, in accordance with the Standard of Care, all deliverables and other documents so that they accurately reflect, fully comply with and incorporate all applicable laws, rules, and regulations, and so that they are complete and functional for the purposes intended, except as to any deficiencies which are due to causes beyond the control of Energy Analyst;

1.1.4. Energy Analyst shall be responsible for correcting any inconsistencies, errors or omissions in the reports, deliverables and other documents prepared by Energy Analyst at no additional cost to the Contracting Agency;

1.1.5. Agency’s review or acceptance of documents shall not be deemed as approval of the adequacy of the reports, deliverables and other documents. Any review or acceptance by Agency will not relieve Energy Analyst of any responsibility for complying with the Standard of Care;

1.2. Energy Analyst represents and warrants to Agency that:

1.2.1. Energy Analyst has the power and authority to enter into and perform this Agreement; the persons executing this Agreement on behalf of Energy Analyst have the actual authority to bind Energy Analyst to the terms of this Agreement;

1.2.2. When executed and delivered, this Agreement shall be a valid and binding obligation of Energy Analyst enforceable in accordance with its terms; the provisions of this Agreement do not conflict with or result in a default under any agreement or other instrument binding upon Energy Analyst and do not result in a violation of any law, regulation, court decree or court order or other legal process applicable to Energy Analyst;

1.2.3. Energy Analyst shall, at all times during the term of this Agreement, be duly licensed to perform the services, and if there is no licensing requirement for the profession or services, be duly qualified and competent;

1.2.4. Energy Analyst has the capabilities and resources necessary to perform Energy Analyst's obligations under this Agreement;

1.2.5. All services shall be performed in accordance with the Standard of Care.

2. Indemnity.

2.1. CLAIMS FOR OTHER THAN PROFESSIONAL LIABILITY. ENERGY ANALYST SHALL INDEMNIFY, DEFEND, SAVE, AND HOLD HARMLESS THE STATE OF OREGON AND AGENCY, AND THEIR OFFICERS, AGENTS, AND EMPLOYEES, FROM AND AGAINST ALL CLAIMS, SUITS, ACTIONS, LOSSES, DAMAGES, LIABILITIES, COSTS

AND EXPENSES OF WHATSOEVER NATURE RESULTING FROM OR ARISING OUT OF THE ACTS OR

OMISSIONS OF ENERGY ANALYST UNDER THIS AGREEMENT.

2.2. CLAIMS FOR PROFESSIONAL LIABILITY. ENERGY ANALYST SHALL INDEMNIFY, DEFEND, SAVE, AND HOLD HARMLESS THE STATE OF OREGON AND AGENCY, AND THEIR OFFICERS, AGENTS, AND EMPLOYEES, FROM AND AGAINST ALL CLAIMS, SUITS, ACTIONS, LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES OF WHATSOEVER NATURE ARISING OUT OF THE PROFESSIONALLY NEGLIGENT ACTS, ERRORS OR OMISSIONS OF ENERGY ANALYST IN THE PERFORMANCE OF PROFESSIONAL SERVICES UNDER THIS

AGREEMENT.

2.3. Agency Defense Requirements. Notwithstanding the obligations under Sections 3.1 and 3.2, neither Energy Analyst nor any attorney engaged by Energy Analyst shall defend any 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 prior written consent of the Oregon Attorney General. Agency may, at any time and at its election, assume its own defense and settlement of any claims in the event that: it determines that Energy Analyst is prohibited from defending the State of Oregon; Energy Analyst is not adequately defending the State of Oregon's interests; an important governmental principle is at issue; or it is in the best interests of the State of Oregon to do so. The State of Oregon reserves all rights to pursue any claims it may have against Energy Analyst if the State of Oregon elects to assume its own defense.

2.4. Agency’s Actions. This Section 3 does not include indemnification by Energy Analyst of the State of Oregon or Agency or their officers, agents, and employees, for the acts or omissions of the State of Oregon, Agency or their officers, agents, and employees, whether within the scope of the Agreement or otherwise.

3. Energy Analyst’s Status.

3.1. Energy Analyst shall perform all services as an independent contractor. Although Agency reserves the right to set the delivery schedule for the services to be performed and to evaluate the quality of the completed performance, Agency cannot and will not control the means and manner of Energy Analyst’s performance.

3.2. Energy Analyst is not a contributing member of the Public Employees’ Retirement System and will be responsible for any federal, state or other taxes applicable to any compensation or payments paid to Energy Analyst under this Agreement. Energy Analyst will not be eligible for any benefits from any payments made under this Agreement for federal Social Security, unemployment insurance, or worker’s compensation, except as a self-employed individual. If any payment under this Agreement is to be charged against federal funds, Energy Analyst certifies that it is not currently employed by the federal government.

4. Successors & Assignments. The provisions of this Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and assigns. After the original Agreement is executed, Energy Analyst shall not enter into any Sub-Energy Analyst agreements for any of the services or assign or transfer any of its interest in this Agreement.

5. Compliance with Applicable Law. Energy Analyst shall comply with all federal, state and local laws, regulations, executive orders and ordinances applicable to the services. Agency’s performance under this Agreement is conditioned upon Energy Analyst's compliance with the provisions of ORS 279C.505, 279C.515, 279C.520, and 279C.530, which are hereby incorporated by reference.

6. Governing Law; Jurisdiction; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Oregon without regard to principles of conflicts of law. Any claim, action, suit or proceeding (collectively “Claim”) between Agency and Energy Analyst that arises from or relates to this Agreement shall 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 shall be brought and conducted solely and exclusively within the United States District Court for the District of Oregon. In no event shall this “Governing Law; Jurisdiction; Venue” section be construed as a waiver by the State of Oregon of any form of defense or immunity, whether based on sovereign immunity, governmental immunity, immunity based on the Eleventh Amendment to the United States Constitution or otherwise.

ENERGY ANALYST, BY EXECUTION OF THIS AGREEMENT, HEREBY CONSENTS TO THE IN PERSONA

JURISDICTION OF SAID COURTS.

7. Severability. The Parties agree that if any term or provision of this Agreement is declared by a court of competent jurisdiction to be illegal or in conflict with any law, the validity of the remaining terms and provisions shall not be affected and the rights and obligations of the Parties shall be construed and enforced as if the Agreement did not contain the particular term or provision held to be invalid.

8. Force Majeure. Neither party shall be held responsible for delay or default in the performance of its obligations due to a cause beyond its reasonable control, including, but not limited to fire, riot, acts of God, terrorist acts or war where such cause was beyond such party's reasonable control. Each party shall, however, make all reasonable efforts to remove or eliminate such a cause of delay or default and shall, upon the cessation of the cause, diligently pursue performance of its obligations under the Agreement.

9. Waiver. The failure of Agency to enforce any provision of this Agreement shall not constitute a waiver by Agency of that or any other provision.

10. Ownership of Work Product. Work products that are created using state funds will be considered the property of the Contracting Agency and the state of Oregon, and as such, shall be subject to the Oregon Public Records Law and other public information laws. Contracts may include provisions to protect intellectual property rights, on a case-by-case basis and consistent with applicable law.

11. Termination.

11.1. Parties Right to Terminate by Agreement. This Agreement may be terminated at any time, in whole or in part, by written mutual consent of the Parties.

11.2. Parties Right to Terminate for Convenience. Either Party may, at its sole discretion, terminate this Agreement, by written notice to the other Party providing at least 30 days and specifying the termination date of the Agreement.

11.3. Agency’s Right to Terminate for Cause. Agency may terminate this Agreement immediately, in whole or in part, upon written notice to Energy Analyst, or such later date as Agency may establish in such notice, upon the occurrence of any of the following events:

11.3.1. Energy Analyst fails to maintain the qualifications used to qualify under Agency RFQ #21-014 or no longer holds all licenses or certificates that are required to perform the services; or

11.3.2. Energy Analyst fails to perform any of the provisions of this Agreement; or so fails to perform the services as to endanger performance of this Agreement in accordance with its terms, and after receipt of written notice from Agency, does not correct such failures within the time that Agency specifies (which shall not be less than 10 calendar days, except in the case of emergency); or

11.3.3. Energy Analyst fails to meet or deviates from the Energy Analysts requirements as specified in Agency RFQ #21-014 and SEED Guidelines; or

11.3.4. Energy Analyst fails to respond to Agency’s comments during the review process. Examples of such failure to respond include, but are not limited to:

11.3.4.1. Energy Analyst fails to resolve technical and program issues or to make corrections to the Energy Analyst Report as directed by Agency;

11.3.4.2. Energy Analyst’s documentation lacks sufficient detail to support recommendations

11.3.5. Energy Analyst fails to retain qualified staff. Only those staff members identified in Exhibit C may perform services under the Agreement. If qualified personnel leave the firm, Energy Analyst must demonstrate that the remaining or new personnel continue to meet the requirements of Agency RFQ #21-014 regarding qualifications and experience. Agency may terminate this Agreement if Energy Analyst does not notify Agency of replacement personnel or does not have a current Agreement prior to entering into a contract with a Contracting Agency. Changes to personnel must be approved by Agency in writing before they become effective; or

11.3.6. Energy Analyst submits Energy Analyst Reports bearing unauthorized signatures; or

11.3.7. Energy Analyst is determined to be not responsible by a Contracting Agency during their procurement.

12. False Claims Act.

12.1. The Energy Analyst acknowledges that the Oregon False Claims Act, ORS 180.750 to 180.785, applies to any action or conduct by the Energy Analyst pertaining to this Agreement that constitutes a “claim” (as defined by the Oregon False Claims Act, ORS 180.750(1)). By its execution of this Agreement, the Energy Analyst certifies the truthfulness, completeness, and accuracy of any statement or claim it has made, it makes, it may make, or causes to be made that pertains to this Agreement or to the Project for which the Agreement work is being performed. In addition to other penalties that may be applicable, Energy Analyst further acknowledges that if it makes, or causes to be made, a false claim or performs a prohibited act under the Oregon False Claims Act, the Oregon Attorney General may enforce the liabilities and penalties provided by the Oregon False Claims Act against Energy Analyst.

Nothing in this section or this Agreement may be construed as limiting or derogating from any authority granted the Oregon Attorney General under 180.750 to 180.785.

12.2. The Energy Analyst shall immediately report in writing, to Agency, any credible evidence that a principal, employee, agent, or subcontractor of the Energy Analyst, or any subgrantee or other person, has made a false claim or committed a prohibited act under the Oregon False Claims Act, or has committed a criminal or civil violation of laws pertaining to fraud, bribery, gratuity, conflict of interest, or similar misconduct in connection with this Agreement or moneys paid by Agency under this Agreement.

12.3. The Energy Analyst must include all subsections of this section in each subcontract or subgrant the Energy Analyst may award in connection with the performance of this Agreement. In doing so, the Energy Analyst may not modify the terms of those subsections, except to identify the subcontractor or sub-grantee who will be subject to those provisions.

EXHIBIT B

SCOPE OF SERVICES

Energy Analyst’s Responsibilities. For the duration of this Agreement, Energy Analyst shall be responsible for the following:

1. Maintaining qualifications and abilities. Energy Analyst shall maintain the qualifications used to qualify under

Agency RFQ #21-014 as well as the ability to perform the services specified in Agency RFQ #21-014.

2. Maintaining qualified staff. Staff members deemed qualified by Agency are listed by name in Exhibit C. Only those staff members authorized by Agency can provide energy analyst services under this Agreement.

Energy Analyst may request to add additional staff members to this list by submitting their qualifications to

Agency. Any changes to Energy Analyst’s list of qualified staff members must be reported to Agency with 30 days of the change.

Representatives of the Parties for this Agreement are:

Energy Analyst: Phone: Email:

Agency: Phone: Email:

EXHIBIT C

QUALIFIED PERSONNEL

Only those staff members identified in this Exhibit C are authorized to provide energy analyst services under this Agreement.

Name Degree Years of Modeling Experience

Energy Projects Role in Energy Project