22-013 Attachment A - Sample Contract~1.pdf

Contract #:______________________

Contractor:______________________

STATE OF OREGON PERSONAL/PROFESSIONAL SERVICES CONTRACT #

This Contract is between the State of Oregon, acting by and through Department of Energy, hereafter called Agency, and

Name

Company Name

Address

Phone

Email

Hereafter called Contractor.

Agency's Contract Administrator for this Contract is

Roger Kainu

Oregon Department of Energy

550 Capitol St NE

Salem, OR 97301

503-378-2697

Roger.Kainu@energy.oregon.gov

1. Contract Period. This Contract is effective on the date it has been signed by all parties and all required State of Oregon approvals have been obtained. This Contract expires on June 30, 2024 or when Agency accepts the final deliverable, whichever date occurs last. Contract termination shall not extinguish or prejudice Agency’s right to enforce this Contract with respect to any default by Contractor that has not been cured.

2. Statement of Work. Contractor agrees to perform, and Agency agrees to pay for, the services and deliverables (the

“Work”) as set forth in the Statement of Work, which includes the delivery schedule for such Work, and that is attached hereto as Exhibit A. Contractor shall perform the Work in accordance with the terms and conditions of this Contract.

3. Consideration

a. The maximum, not-to-exceed compensation payable to Contractor under this Contract, which includes any allowable expenses, is $50,000.00. Agency will not pay Contractor any amount in excess of the not-to-exceed compensation of this

Contract for completing the Work and will not pay for Work performed before the date this Contract becomes effective or after the termination of this Contract. If the maximum compensation is increased by amendment of this Contract, the amendment must be fully effective before Contractor performs Work subject to the amendment.

b. Interim payments to Contractor shall be subject to ORS 293.462, and shall be made in accordance with the payment schedule and requirements in Exhibit A.

c. Agency will pay only for completed Work that is accepted by Agency.

d. Contractor shall submit monthly invoices to the Agency for Work performed. The invoices shall describe all Work performed with reference to the Statement of Work (Exhibit A), specifying the time period covered by the invoice, and by whom the work was performed and shall itemize and explain all expenses that this Contract requires Agency to pay and for which Contractor claims reimbursement. Each invoice also shall include the total amount invoiced to date by

Contractor prior to the current invoice. Contractor shall send invoices to Agency’s Contracts Coordinator as follows:

mailto:Roger.Kainu@energy.oregon.gov

Contracts Payable

550 Capitol St NE

Salem, OR 97301

Odoe.invoices@energy.oregon.gov

4. Contract Documents. This Contract consists of the following documents, which are listed in descending order of precedence: this Contract less all exhibits, attached Exhibit A (the Statement of Work), Exhibit B (Required Insurance), Exhibit C (USDOE Home Energy Score Partnership Agreement), Exhibits A-C are attached hereto and incorporated herein by this reference.

5. Independent Contractor; Responsibility for Taxes and Withholding

a. Contractor shall perform all Services as an independent Contractor. Although Agency has the right to (a) determine and modify the delivery schedule for Services to be performed and (b) evaluate the quality of the completed performance, Agency cannot and will not control the means or manner of Contractor's performance. Contractor is responsible for determining the appropriate means and manner of performing any Services required under this Contract. Contractor certifies, represents and warrants that Contractor is an independent contractor of Agency under all applicable State and federal law. Contractor is not an "officer", "employee", or "agent" of Agency as those terms are used in ORS 30.265.

b. If Contractor is currently performing work for State or the federal government, Contractor by signature to this Contract represents and warrants: Contractor's performance of this Contract creates no potential or actual conflict of interest as defined by ORS 244 and that no rules or regulations of Contractor's employing agency (state or federal) would prohibit

Contractor's performance of this Contract.

c. Contractor is responsible for all federal and state taxes applicable to compensation or payments paid to Contractor under this Contract, and unless required by prevailing federal law or regulations, Agency will not withhold from compensation or payments to Contractor any amount(s) to cover Contractor's federal or state tax obligations unless

Contractor is subject to backup withholding. Contractor is not eligible for any social security, unemployment insurance or workers' compensation benefits from compensation or payments paid to Contractor under this Contract.

6. Subcontracts, Successors, and Assignments

a. Contractor shall not enter into any subcontracts for any of the Work required under this Contract without Agency's prior written consent. In addition to any other provisions Agency may require, Contractor shall include in any permitted subcontract provisions to ensure that Agency will receive the benefit of subcontractor’s performance as if the subcontractor were the Contractor with respect to Sections 5, 6, 9, 10, 11, 16, 19, 23, and Exhibit A. Acceptance Criteria and Process.

Agency’s consent to any subcontract shall not relieve Contractor of any of its duties or obligations under this Contract.

b. The provisions of this Contract shall be binding upon and inure to the benefit of the parties, their respective successors, and permitted assigns, if any.

c. Contractor shall not assign, delegate or transfer any of its rights or obligations under this Contract without Agency’s prior written consent. Agency’s written consent does not relieve Contractor of any obligations under this Contract, and any assignee, transferee, or delegate is considered Contractor’s agent.

7. No Third Party Beneficiaries. Agency and Contractor are the only parties to this Contract and are the only parties entitled to enforce the terms of this Contract. Nothing in this Contract gives, is intended to give, or shall be construed to give or provide any benefit or right not held by or made generally available to the public, whether directly, indirectly or otherwise, to third persons unless such third persons are individually identified by name herein and expressly described as intended beneficiaries of the terms of this Contract. Agency is an intended beneficiary of the terms of the Contract.

mailto:Odoe.invoices@energy.oregon.gov

8. Funds Available and Authorized; Payments. Contractor shall not be compensated for Work performed under this

Contract by any other agency or department of the State of Oregon. Agency has a request pending limitation under the agency’s budget process. Contractor understands and agrees that Agency's payment of amounts under this Contract is contingent on Agency receiving appropriations, limitations, allotments or other expenditure authority sufficient to allow

Agency, in the exercise of its reasonable administrative discretion, to continue to make payments under this Contract.

9. Representations and Warranties.

a. Contractor’s Representations and Warranties. All express and implied warranties that are applicable to goods under

ORS Chapter 72 apply to the Goods delivered under this Contract. Contractor represents and further warrants that:

1. Contractor has the authority to enter into and perform in accordance with this Contract and that this Contract, when executed and delivered, is a valid and binding obligation of Contractor that is enforceable in accordance with its terms;

2. Contractor has the skill and knowledge possessed by well-informed members of its industry, trade or profession and Contractor will apply that skill and knowledge with care and diligence and perform the Work in a timely, professional and workmanlike manner in accordance with standards applicable to Contractor’s industry, trade or profession;

3. Contractor is and shall be, at all times during the term of this Contract, qualified, professionally competent, and duly licensed to perform the Work; and

4. When used as authorized by this Contract, no Work Product infringes nor will Agency’s use, duplication or transfer of the Work Product infringe any copyright, patent, trade secret or other proprietary right of any third party.

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

10. Ownership of Work Product.

a. Definitions. As used in this Section 10, and elsewhere in this Contract, the following terms have the meanings set forth below:

1. “Contractor Intellectual Property” means any intellectual property owned by Contractor and developed independently from the Work.

2. “Open Source Elements” means any Work Product subject to any open source initiative certified license, including

Work Product based upon any open source initiative certified licensed work.

3. “Third Party Intellectual Property” means any intellectual property owned by parties other than Agency or

Contractor.

4. “Work Product” means all Services and Goods Contractor delivers or is required to deliver to Agency pursuant to this Contract.

b. New Works. All intellectual property rights in the Work Product created by Contractor under this Contract shall be the exclusive property of Agency. All Work Product authored by Contractor under this Contract shall be deemed "works made for hire" to the extent permitted by the United States Copyright Act. To the extent Agency is not the owner of the intellectual property rights in such Work Product, Contractor hereby irrevocably assigns to Agency any and all of its rights, title, and interest in such Work Product. Upon Agency’s reasonable request, Contractor shall execute such further documents and instruments reasonably necessary to fully vest such rights in Agency. Contractor forever waives any and all rights relating to such Work Product created under this Contract, including without limitation, any and all rights arising under 17 USC §106A or any other rights of identification of authorship or rights of approval, restriction or limitation on use or subsequent modifications.

c. Contractor Intellectual Property. Intellectual property rights are subject to 2 CFR 200.315 (e.g. institution of higher education or nonprofit organizations) or 2 CFR 910.362 (e.g. for-profit).

Foreign National Access

The Recipient may be required to provide information to DOE in order to satisfy requirements for foreign nationals’ access to DOE sites, information, technologies, equipment, programs or personnel. A foreign national is defined as any person who is not a U.S. citizen by birth or naturalization. If the Recipient (including any of its subrecipients, contractors or vendors) anticipates involving foreign nationals in the performance of its award, the Recipient may be required to provide DOE with specific information about each foreign national to ensure compliance with the requirements for access approval. National laboratory personnel already cleared for site access may be excluded. The University will be required to notify ODOE of involvement of Foreign Nationals under this agreement prior to their participation.

Publications

The University is required to include the following acknowledgement in publications arising out of, or relating to, work performed under this Award, whether copyrighted or not:

• Acknowledgment: “This material is based upon work supported by the U.S. Department of Energy’s Office of

Energy Efficiency and Renewable Energy (EERE) under the State Energy Program Award Number DE-

0009484.”

• Full Legal Disclaimer: “This report was prepared as an account of work sponsored by an agency of the United

States Government. Neither the United States Government nor any agency thereof, nor any of their employees, makes any warranty, express or implied, or assumes any legal liability or responsibility for the accuracy, completeness, or usefulness of any information, apparatus, product, or process disclosed, or represents that its use would not infringe privately owned rights. Reference herein to any specific commercial product, process, or service by trade name, trademark, manufacturer, or otherwise does not necessarily constitute or imply its endorsement, recommendation, or favoring by the United States Government or any agency thereof. The views and opinions of authors expressed herein do not necessarily state or reflect those of the United States Government or any agency thereof.”

Abridged Legal Disclaimer: “The views expressed herein do not necessarily represent the views of the U.S.

Department of Energy or the United States Government.”

The University should make every effort to include the full Legal Disclaimer. However, in the event that recipients are constrained by formatting and/or page limitations set by the publisher, the abridged Legal

Disclaimer is an acceptable alternative.

Nondisclosure and Confidentiality Agreements Assurances

A. By entering into this agreement, the University attests that it does not and will not require its employees or contractors to sign internal nondisclosure or confidentiality agreements or statements prohibiting or otherwise restricting its employees or contactors from lawfully reporting waste, fraud, or abuse to a designated investigative or law enforcement representative of a Federal department or agency authorized to receive such information.

B. The Contractor further attests that it does not and will not use any Federal funds to implement or enforce any nondisclosure and/or confidentiality policy, form, or agreement it uses unless it contains the following provisions:

i. ‘‘These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.’’

ii. The limitation above shall not contravene requirements applicable to Standard Form 312, Form 4414, or any other form issued by a Federal department or agency governing the nondisclosure of classified

Notwithstanding provision listed in paragraph (a), a nondisclosure or confidentiality policy form or agreement that is to be executed by a person connected with the conduct of an intelligence or intelligence-related activity, other than an employee or officer of the United States Government, may contain provisions appropriate to the particular activity for which such document is to be used. Such form or agreement shall, at a minimum, require that the person will not disclose any classified information received in the course of such activity unless specifically authorized to do so by the United States

Government. Such nondisclosure or confidentiality forms shall also make it clear that they do not bar disclosures to

Congress, or to an authorized official of an executive agency or the Department of Justice, that are essential to reporting a substantial violation of law.

If intellectual property rights in the Work Product are Contractor Intellectual Property, Contractor hereby grants to Agency an irrevocable, non-exclusive, perpetual, royalty-free license to use, make, reproduce, prepare derivative works based upon, distribute copies of, perform and display the Contractor Intellectual Property, and to authorize others to do the same on

Agency’s behalf.

d. Third Party Intellectual Property. To the extent Contractor has the authority, Contractor shall sublicense or pass through to Agency all Third-Party Intellectual Property. Contractor represents and warrants that is has provided written disclosure to Agency of all Third-Party Intellectual Property that must be independently licensed by Agency to fully enjoy the benefit of the Work Product. If Contractor failed to provide such written disclosure, Contractor shall secure on the

Agency’s behalf and in the name of the Agency, an irrevocable, non-exclusive, perpetual, royalty-free license to use, make, reproduce, prepare derivative works based upon, distribute copies of, perform and display the Third Party Intellectual

Property, and to authorize others to do the same on Agency’s behalf.

e. Open Source Approval and Notice. Any Open Source Elements in the Work Product must be approved in advance and in writing by Agency. If Agency approves the use of Open Source Elements, Contractor shall:

i. Notify Agency in writing that the Work Product contains Open Source Elements;

ii. Identify the specific portion of the Work Product that contain Open Source Elements; and

iii. Provide a copy of the applicable license for each Open Source Element to Agency.

11. Indemnity; Assignment of Antitrust Rights.

a. GENERAL INDEMNITY. CONTRACTOR SHALL DEFEND, SAVE, HOLD HARMLESS, AND INDEMNIFY

STATE, ITS AGENCIES, OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES FROM AND AGAINST ALL

CLAIMS, SUITS, ACTIONS, LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES OF ANY NATURE

WHATSOEVER (“CLAIMS”) RESULTING FROM, ARISING OUT OF, OR RELATING TO THE ACTS OR

OMISSIONS OF CONTRACTOR OR ITS OFFICERS, EMPLOYEES, SUBCONTRACTORS, OR AGENTS UNDER

THIS CONTRACT.

b. INDEMNITY FOR INFRINGEMENT CLAIMS. WITHOUT LIMITING THE GENERALITY OF SECTION 3.I.i, CONTRACTOR SHALL DEFEND, SAVE, HOLD HARMLESS AND INDEMNIFY STATE, ITS AGENCIES, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES FROM AND AGAINST ALL CLAIMS, SUITS, ACTIONS, LOSSES, DAMAGES, LIABILITIES, COSTS, AND EXPENSES, INCLUDING ATTORNEYS FEES, ARISING OUT

OF OR RELATING TO ANY CLAIMS THAT THE WORK, THE WORK PRODUCT OR ANY OTHER TANGIBLE

OR INTANGIBLE ITEM DELIVERED UNDER THIS CONTRACT BY CONTRACTOR THAT MAY BE THE

SUBJECT OF PROTECTION UNDER ANY STATE OR FEDERAL INTELLECTUAL PROPERTY LAW OR

DOCTRINE, OR AGENCY’S REASONABLE USE THEREOF, INFRINGES ANY PATENT, COPYRIGHT, TRADE

SECRET, TRADEMARK, TRADE DRESS, MASK WORK, UTILITY DESIGN, OR OTHER PROPRIETARY RIGHT

OF ANY THIRD PARTY (“INFRINGEMENT CLAIM”); PROVIDED, THAT STATE SHALL PROVIDE

CONTRACTOR WITH PROMPT WRITTEN NOTICE OF ANY INFRINGEMENT CLAIM.

c. CONTROL OF DEFENSE AND SETTLEMENT. STATE SHALL REASONABLY COOPERATE IN GOOD

FAITH, AT CONTRACTOR’S REASONABLE EXPENSE, IN THE DEFENSE OF CLAIMS AND INFRINGEMENT

CLAIMS, AND CONTRACTOR SHALL SELECT COUNSEL REASONABLY ACCEPTABLE TO THE OREGON

ATTORNEY GENERAL TO DEFEND SUCH CLAIMS AND INFRINGEMENT CLAIMS AND SHALL BEAR ALL

COSTS OF SUCH COUNSEL. COUNSEL MUST ACCEPT APPOINTMENT AS A SPECIAL ASSISTANT

ATTORNEY GENERAL UNDER ORS CHAPTER 180 BEFORE COUNSEL MAY ACT IN THE NAME OF, OR

REPRESENT THE INTERESTS OF, STATE, ITS AGENCIES, OFFICERS, EMPLOYEES OR AGENTS. STATE

MAY ELECT TO ASSUME ITS OWN DEFENSE WITH AN ATTORNEY OF ITS OWN CHOICE AND AT ITS OWN

EXPENSE AT ANY TIME STATE DETERMINES IMPORTANT GOVERNMENTAL INTERESTS ARE AT STAKE.

SUBJECT TO THE LIMITATIONS NOTED ABOVE, CONTRACTOR MAY DEFEND SUCH CLAIMS AND

INFRINGEMENT CLAIMS WITH COUNSEL OF ITS OWN CHOOSING PROVIDED THAT NO SETTLEMENT OR

COMPROMISE OF ANY SUCH CLAIMS AND INFRINGEMENT CLAIMS SHALL OCCUR WITHOUT THE

CONSENT OF STATE, WHICH CONSENT SHALL NOT BE UNREASOABLY WITHHELD, CONDITIONED OR

DELAYED.

d. ASSIGNMENT OF ANTITRUST RIGHTS.

i. CONTRACTOR IRREVOCABLY ASSIGNS TO STATE ANY CLAIM FOR RELIEF OR CAUSE OF ACTION

WHICH CONTRACTOR NOW HAS OR WHICH MAY ACCRUE TO CONTRACTOR IN THE FUTURE BY

REASON OF ANY VIOLATION OF 15 U.S.C. § 1-15 OR ORS 646.725 OR ORS 646.730, IN CONNECTION

WITH ANY GOODS OR SERVICES PROVIDED TO CONTRACTOR FOR THE PURPOSE OF CARRYING

OUT CONTRACTOR’S OBLIGATIONS UNDER THIS CONTRACT, INCLUDING, AT STATE’S OPTION, THE

RIGHT TO CONTROL ANY SUCH LITIGATION ON SUCH CLAIM FOR RELIEF OR CAUSE OF ACTION.

ii. CONTRACTOR SHALL REQUIRE ANY SUBCONTRACTORS HIRED TO PERFORM ANY OF

CONTRACTOR’S DUTIES UNDER THIS CONTRACT TO IRREVOCABLY ASSIGN TO STATE, AS THIRD

PARTY BENEFICIARY, ANY RIGHT, TITLE OR INTEREST THAT HAS ACCRUED OR WHICH MAY

ACCRUE IN THE FUTURE BY REASON OF ANY VIOLATION OF 15 U.S.C. § 1-15 OR ORS 646.725 OR ORS

646.730, IN CONNECTION WITH ANY GOODS OR SERVICES PROVIDED TO THE SUBCONTRACTOR FOR

THE PURPOSE OF CARRYING OUT THE SUBCONTRACTOR’S OBLIGATIONS TO CONTRACTOR IN

PURSUANCE OF THIS CONTRACT, INCLUDING, AT STATE’S OPTION, THE RIGHT TO CONTROL ANY

SUCH LITIGATION ON SUCH CLAIM FOR RELIEF OR CAUSE OF ACTION.

12. Insurance. Contractor shall obtain the insurance required as set forth in Exhibit B prior to performing under this

Contract and shall maintain insurance throughout the duration of this Contract and all warranty periods.

13. Breach; Remedies; Termination.

a. Breach by Contractor. Contractor breaches this Contract if:

1. Contractor institutes or has instituted against it insolvency, receivership or bankruptcy proceedings, makes an assignment for the benefit of creditors, or ceases doing business on a regular basis;

2. Contractor no longer holds a license or certificate that is required for Contractor to perform its obligations under this Contract and Contractor has not obtained the license or certificate within fourteen (14) calendar days after

Agency delivers notice of breach to Contractor or a longer period as Agency may specify in the notice; or

3. Contractor commits any material breach of any covenant, warranty, obligation or certification under this Contract, fails to perform its obligations under this Contract within the time specified or any extension of that time, and

Contractor fails to cure the breach within fourteen (14) calendar days after Agency delivers notice of breach to

Contractor or a longer period as Agency may specify in the notice.

b. Agency’s Remedies for Contractor’s Breach. If Contractor is in breach under Section 13.a, then in addition to the remedies afforded elsewhere in this Contract, Agency shall be entitled to recover for any and all damages suffered as the result of Contractor’s breach of this Contract, including, but not limited to direct, indirect, incidental and consequential damages. Agency may, at Agency’s option, pursue any or all of the remedies available under this Contract and at law or equity, including, but not limited to:

1. termination of this Contract under Section 13.e.2;

2. withholding payment of all amounts in Contractor’s invoices for Services that Contractor is obligated to but has failed to deliver or perform within any scheduled completion dates or has performed inadequately or defectively;

3. initiation of an action or proceeding for damages, specific performance, declaratory or injunctive relief; or

4. exercise of the right of setoff and withholding of amounts otherwise due and owing to Contractor in an amount equal to Agency’s setoff right, without penalty.

These remedies are cumulative to the extent the remedies are not inconsistent, and Agency may pursue any remedy or remedies singly, collectively, successively or in any order whatsoever. If it is determined for any reason that Contractor was not in breach under Section 13.a, the rights and obligations of the parties shall be the same as if this Contract was terminated pursuant Section 13.e.1.

c. Breach by Agency. Agency breaches this Contract if:

1. Agency fails to pay Contractor any amount pursuant to the terms of this Contract, and Agency fails to cure its failure to pay within fourteen (14) calendar days after Contractor delivers notice of breach to Agency or a longer period as Contractor may specify in the notice; or

2. Agency commits any material breach of any covenant, warranty, or obligation under this Contract, fails to perform its obligations hereunder within the time specified or any extension thereof, and Agency fails to cure the breach within fourteen (14) calendar days after Contractor delivers notice of breach to Agency or a longer period as Contractor may specify in the notice.

d. Contractor’s Remedies for Agency’s Breach. If Agency terminates this Contract for convenience under Section

13.e(i), or if Agency is in breach under Section 13.c and whether or not Contractor elects to exercise its right to terminate this Contract under Section 13.e.3, Contractor’s sole remedy is one of the following, as applicable:

1. For services compensable on an hourly basis, a claim against Agency for unpaid invoices, hours worked but not yet invoiced, and authorized expenses for services completed and accepted by Agency less any claims Agency has against Contractor;

2. For deliverable-based services, a claim against Agency for the sum designated for completing the deliverable multiplied by the percentage of services completed and accepted by Agency, less previous amounts paid and any claims Agency has against Contractor.

If previous amounts paid to Contractor for services and goods exceed the amount due to Contractor under this Section

13.d, Contractor shall pay the excess amount to Agency immediately upon written demand.

e. Termination.

1. MUTUAL CONSENT. This Contract may be terminated at any time by mutual written consent of the parties.

2. AGENCY.

i. Agency may, at its sole discretion, terminate this Contract for its convenience upon 30 days written notice by

Agency to Contractor.

ii. Agency may, in its sole discretion, terminate this Contract, immediately upon notice to Contractor, or at a later date as Agency may establish in the notice, upon the occurrence of any of the following events:

A. Agency fails to receive funding, appropriations, limitations, allotments or other expenditure authority at levels sufficient to pay for Services;

B. Federal or state laws, regulations, or guidelines are modified or interpreted in a way that either the purchase of Services by Agency under this Contract is prohibited, or Agency is prohibited from paying for Services from the planned funding source; or

C. Contractor is in breach under section 13a.

Contractor shall stop performance under this Contract as directed by Agency in any written notice of termination delivered to Contractor under this section 13.e.

3. CONTRACTOR. Contractor may terminate this Contract immediately upon written notice to Agency, or at a later date as Contractor may establish in the notice, if Agency is in breach pursuant to section 13.c.

14. Records Maintenance; Access. Contractor shall retain, maintain, and keep accessible all records relevant to this

Contract ("Records") for minimum of six (6) years, or a longer period as may be required by applicable law, following

Contract termination or full performance, the period required by applicable law following Contract termination or full performance, or until the conclusion of any audit, controversy or litigation arising out of or related to this Contract, whichever ending is later. Contractor shall maintain all financial Records in accordance with generally accepted accounting principles. During this Record-retention period, Contractor shall permit State, its duly authorized representatives, and the federal government access to the Records at reasonable times and places for purposes of examination and copying.

15. Compliance with Applicable Laws and Standards.

a. Contractor shall comply with all federal, state and local laws, regulations, and ordinances applicable to this Contract or to Contractor’s obligations under this Contract, as those laws, regulations and ordinances may be adopted or amended from time to time.

b. Agency’s performance under this Contract is conditioned upon Contractor's compliance with the obligations intended for contractors under ORS 279B.220, 279B.225 (if applicable to this Contract), 279B.230 and 279B.235 (if applicable to this Contract), which are incorporated by reference herein. Contractor shall, to the maximum extent economically feasible in the performance of this Contract, use recycled paper (as defined in ORS 279A.010(1)(ee)), recycled PETE products (as defined in ORS 279A.010(1)(ff)), and other recycled plastic resin products and recycled products (as “recycled product” is defined in ORS 279A.010(1)(gg)).

16. Foreign Contractor. If Contractor is not domiciled in or registered to do business in the State of Oregon, Contractor shall promptly provide to the Oregon Department of Revenue and the Secretary of State Corporation Division all information required by those agencies relative to this Contract. Contractor shall demonstrate its legal capacity to perform the Work under this Contract in the State of Oregon prior to entering into this Contract.

17. Force Majeure. Neither Agency nor Contractor shall be responsible for any failure to perform or for any delay in the performance of any obligation under this Contract caused by fire, riot, acts of God, terrorism, war, or any other cause which is beyond the breaching party's reasonable control. Contractor shall, however, make all reasonable efforts to remove or eliminate the cause of Contractor’s delay or breach and shall, upon the cessation of the cause, continue performing under this Contract. Agency may terminate this Contract upon written notice to Contractor after reasonably determining that the delay or breach will likely prevent successful performance of this Contract.

18. Survival. In addition to all provisions which by their nature extend beyond Contract termination or full performance, the following provisions shall remain in effect beyond any Contract termination or full performance: 1, 3, 7, 8, 9, 10, 11, 12, 13, 14, 17, and 23.

19. Time is of the Essence. Contractor agrees that time is of the essence in the performance of this Contract.

20. Notices. All notices required under this Contract shall be in writing and addressed to the party's authorized representative. For State, the authorized representative is the Agency contact person identified in section 7. Contractor's authorized representative is the contact person identified in section 6. Mailed notices are deemed received five (5) days after the post mark date when properly addressed and deposited prepaid into the U.S. postal service. Faxed notices are deemed received upon electronic confirmation of successful transmission to the designated fax number. Notices delivered by personal delivery are deemed received when delivered to the address specified for the receiving party’s authorized representative.

21. Severability. If any provision of this Contract is declared by a court of competent jurisdiction to be illegal or otherwise invalid, 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 this Contract did not contain the particular provision held to be invalid.

22. Counterparts. This Contract may be executed in several counterparts, all of which when taken together shall constitute one agreement binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. Each copy of this Contract so executed shall constitute an original.

23. Governing Law; Venue; Consent to Jurisdiction.

a. Governing Law. This Contract is governed by and construed in accordance with the laws of the State of Oregon, without regard to principles of conflicts of law. To the extent not modified by the terms of this Contract, the Uniform Commercial

Code as codified in ORS Chapters 71 and 72 governs the Goods sold under this Contract.

b. Venue; Consent to Jurisdiction. Any claim, action, suit or proceeding (collectively, “Proceeding”) between State and

Contractor that arises from or relates to this Contract shall be brought and conducted solely and exclusively within the

Circuit Court of State for Marion County; provided, however, if a Proceeding must be brought in a federal forum, then unless otherwise prohibited by law, it shall be brought and conducted solely and exclusively within the United States

District Court for the District of Oregon. CONTRACTOR HEREBY CONSENTS TO THE IN PERSONAM

JURISDICTION OF THESE COURTS AND WAIVES ANY OBJECTION TO VENUE IN THESE COURTS AND

ANY CLAIM THAT THE FORUM IS AN INCONVENIENT FORUM. Nothing in these provisions shall be construed as a waiver of State's sovereign or governmental immunity, whether derived from the Eleventh Amendment to the United

States Constitution or otherwise, or a waiver of any defenses to Proceedings or jurisdiction based thereon.

24. Integration and Merger. This Contract constitutes the entire agreement between the parties on the subject matter hereof. There are no understandings, agreements, or representations, oral or written, not specified herein regarding this

Contract.

25. Amendments; Waiver. This Contract may be amended to the extent permitted by applicable statutes and administrative rules and as the amendment scope and process may be further described in Exhibit A, Statement of Work. No waiver, consent, or amendment of terms of this Contract shall bind either party unless in writing and signed by Agency and Contractor, and all necessary approvals have been obtained. Waivers and consents shall be effective only in the specific instance and for the specific purpose given. The failure of State to enforce any provision of this Contract shall not constitute a waiver by State of that or any other provision.

27. Contractor Data and Certification.

a. Contractor Tax Identification Information. Contractor shall provide Contractor's Social Security number or Contractor’s federal tax ID number and the additional information set forth below. This information is requested pursuant to ORS 305.385 and OAR 125-246-0330(3). Social Security Numbers provided pursuant to this Section will be used for the administration of state, federal and local tax laws.

Name (tax filing):

Address:

Business Designation (check one):

[ ] Corporation [ ] Professional Corporation [ ] Partnership [ ] Limited Partnership [ ] Limited Liability Partnership [ ] Limited Liability Company [ ] Sole Proprietorship [ ] Other

Federal Tax ID: or SSN:

Agency may report the information set forth above to the Internal Revenue Service (IRS) under the name and social security number or taxpayer identification number provided.

b. Certification. The individual signing on behalf of Contractor hereby certifies and swears under penalty of perjury that: (a) the number shown on this form is Contractor’s correct taxpayer identification; (b) Contractor is not subject to backup withholding because (i) Contractor is exempt from backup withholding, (ii) Contractor has not been notified by the IRS that Contractor is subject to backup withholding as a result of a failure to report all interest or dividends, or (iii) the IRS has notified Contractor that Contractor is no longer subject to backup withholding; (c) s/he is authorized to act on behalf of Contractor, s/he has authority and knowledge regarding Contractor’s payment of taxes, and to the best of her/his knowledge, Contractor is not in violation of any Oregon tax laws named in ORS 305.380(4), including without limitation the state inheritance tax, gift tax, personal income tax, withholding tax, corporation income and excise taxes, amusement device tax, timber taxes, cigarette tax, other tobacco tax, 9-1-1 emergency communications tax, the homeowners and renters property tax relief program and local taxes administered by the Department of Revenue, including the Multnomah County Business Income Tax, Lane Transit District Tax, Tri-Metropolitan Transit District Employer Payroll Tax, and Tri-Metropolitan District Self-Employment Tax; (d) Contractor is an independent contractor as defined in ORS 670.600; and (e) the supplied Contractor data is true and accurate.

28. Oregon False Claims Act.

a. The Contractor acknowledges that the Oregon False Claims Act, ORS 180.750 to 180.785, applies to any action or conduct by the Contractor pertaining to this Contract that constitutes a “claim” (as defined by the Oregon False Claims Act, ORS 180750 (1)). By its execution of this Contract, the Contractor certifies the truthfulness, completeness, and accuracy of any statement or claim it has made, it makes, it may make, or cause to be made that pertains to this Contract or the project for which the Contract work is being performed. In addition to other penalties that may be applicable, Contractor further acknowledges that if it makes, or cause 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 Contractor. Nothing in this Section or this Contract may be construed as limiting or derogating from any authority granted the Oregon Attorney General under

180.750 to 180.785.

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

c. The Contractor must include subsections (a) through (b) of this section in each subcontract or sub grant the Contractor may award in connection with the performance of this Contract. In doing so, the Contractor may not modify the terms of those subsections, except to identify the subcontractors or sub grantee that will be subject to those provisions.

CONTRACTOR, BY EXECUTION OF THIS CONTRACT, HEREBY ACKNOWLEDGES THAT CONTRACTOR

HAS READ THIS CONTRACT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND

CONDITIONS.

CONTRACTORS: YOU WILL NOT BE PAID FOR SERVICES RENDERED PRIOR TO NECESSARY STATE

APPROVALS.

SIGNATURES

CONTRACTOR OREGON DEPARTMENT OF ENERGY

Signature/ Title Date Janine Benner Date Director

Print: __________________________ __________________________________ Maxwell Woods Date Division Administrator

Danae Hammitt Date Designated Procurement Officer

EXHIBIT A

STATEMENT OF WORK

PERSONAL/PROFESSIONAL SERVICES CONTRACT #

Part I. General Information.

Since 2016, the Oregon Home Energy Score, (OHES) has been provided to homeowners through a public-private partnership involving AGENCY as the Home Energy Score Partner and some combination of private-sector firms, non-profit organizations, and individual home energy assessors. Oregon cities such as Portland, Hillsboro and

Milwaukie have instituted ordinances that mandate home energy scores at the time an owner-occupied home is listed for sale, resulting in over 35,000 scores to date within cities with mandatory scoring policies. The city of

Bend has recently voted to adopt a mandatory home energy scoring policy, as well. Home scoring is an additional work task taken on by cities interested in promoting energy efficiency and consumer education and is seen as a valuable tool for communities to promote education and awareness of residential property performance.

To date, home energy scoring in Oregon has not focused on rental properties, due to the design of local city ordinances that require a score when owner occupied homes are listed for sale. To reach the rental property market, serving landlords as well as tenants of these properties, the AGENCY is requesting private sector expertise in conducting program design work, to inform a home energy scoring program for rental properties. This design work is expected to integrate with the current OHES statewide program and city level policies.

The objectives of this public-private partnership are to:

• Assist rental and affordable housing markets with publicly available, energy score information.

• Encourage the distribution of energy scoring information and education as well as building improvements, while maintaining rental fee levels and low tenant displacement.

• Combine rental property score operations seamlessly into Oregon’s current Home Energy

Score program.

Part II. Work; Acceptance Criteria; Deliverables and Delivery Schedule.

The Oregon Department of Energy is seeking private-sector parties who are prepared to fulfill the following roles:

• Development of a Best Practices Guide – research and report – that includes examination of practices used nationally and locally. Minimum key items to include:

• Landlord engagement to determine issues, barriers and opportunities.

• City engagement to determine issues, barriers and opportunities.

• Rental property tracking options.

• Methods for seamless integration with the Oregon Home Energy Score program, USDOE Home Energy Score system and local city ordinances.

• Options for providing score information publicly, such as Apartments.com, prior to properties being listed for rent or sale.

• Understanding of local jurisdiction policy requirements, to ensure city interests are met.

• Understanding of how to operate as a technical advisor to all Oregon jurisdictions, to support home energy score education and advancement of rental property scoring policies.

• Understanding of necessary coordination with local Multiple Listing Services and rental property listing services to share score data and broaden the use of home energy score

Part III. Special Considerations. Reserved.

Part IV. Payment Provisions. The total amount available for payment and authorized for reimbursement to Contractor under section IV.A is $50,000.00.

A.

Contractor shall submit monthly invoices to the Agency for Work performed. The invoices shall describe all Work performed with reference to the Statement of Work (Exhibit A), specifying the time period covered by the invoice, and by whom the work was performed and shall itemize and explain all expenses that this Contract requires Agency to pay and for which Contractor claims reimbursement. Each invoice also shall include the total amount invoiced to date by Contractor prior to the current invoice and include the contract number 22-050. Contractor shall send invoices to:

Contracts Payable

550 Capitol St NE Salem, OR 97301-3737

Odoe.Invoices@energy.oregon.gov

Each invoice shall state the following: “By signing this invoice, the undersigned individual certifies that the individual understands that all statements and representations contained in or attached to this document are subject to the Oregon False Claims Act, ORS 180.750 to 180.785.” and be followed by the signature of a person employed by Contractor with the authority to certify the above statement.

Part V. Travel and Other Expenses.

Agency will reimburse travel and other expenses of the Contractor at the rates set forth in the Oregon Accounting Manual as of the date Contractor incurred the travel or other expenses. The Oregon Accounting Manual is available at http://www.oregon.gov/das/Financial/Acctng/Pages/OAM.aspx.

Part VI. Contract Amendments.

The Agency reserves the right to amend the Contract, in accordance with paragraph 26 of the Contract and OAR 125-247-0805 and OAR 125-248-0340.

mailto:Odoe.Invoices@energy.oregon.gov http://www.oregon.gov/das/Financial/Acctng/Pages/OAM.aspx

EXHIBIT B

INSURANCE REQUIREMENTS

PERSONAL/PROFESSIONAL SERVICE CONTRACT #__________

A. REQUIRED INSURANCE. Contractor shall obtain the insurance specified in this Exhibit B prior to performing under this Contract and shall maintain it in full force and at its own expense throughout the duration of this Contract and all warranty periods. Contractor shall obtain the following insurance from insurance companies or entities that are authorized to transact the business of insurance and issue coverage in State and that are acceptable to Agency.

i. WORKERS COMPENSATION. All employers, including Contractor, that employ subject workers who work under this Contract in State shall comply with ORS 656.017 and shall provide workers' compensation coverage, unless the employers are exemption under ORS 656.126(2). Contractor shall require each of its subcontractors, if any, to comply with, and shall ensure that each of its subcontractors, if any, complies with these requirements.

ii. PROFESSIONAL LIABILITY

Required by Agency Not required by Agency.

Professional Liability Insurance covering any damages caused by an error, omission or any negligent acts related to the professional services to be provided under this Contract. Contractor shall provide proof of insurance of not less than the following amounts as determined by the Agency:

iii. COMMERCIAL GENERAL LIABILITY.

Commercial General Liability Insurance covering bodily injury, death and property damage in a form and with coverages that are satisfactory to the State. This insurance shall include personal and advertising injury liability, products liability and completed operations liability. Coverage may be written in combination with

Automobile Liability Insurance (with separate limits) Contractor shall provide proof of insurance of not less than the following amounts as determined by the Agency:

iv. AUTOMOBILE LIABILITY INSURANCE: AUTOMOBILE LIABILITY.

Automobile Liability Insurance covering all owned, non-owned, or hired vehicles. This coverage may be written in combination with the Commercial General Liability Insurance (with separate limits for “Commercial

General Liability” and “Automobile Liability”). Contractor shall provide proof of insurance of not less than the following amounts as determined by the Agency:

v. EMPLOYERS’ LIABILITY.

If Contractor is a subject employer, as defined in ORS 656.023, Contractor shall obtain employers' liability insurance coverage with combined single limit per occurrence of not less than $500,000, and annual aggregate limits of not less than $1 million.

vi. POLLUTION LIABILITY.

Pollution Liability Insurance covering Contractor’s liability for bodily injury, property damage and environmental damage resulting from either sudden or gradual accidental pollution and related cleanup costs incurred by

Contractor, all arising out of the Goods delivered or Services (including transportation risk) performed under this

Contract.

B. ADDITIONAL INSURED. The Commercial General Liability insurance and Automobile Liability insurance required under this Contract shall include the State of Oregon, its officers, employees and agents as Additional

Insureds but only with respect to Contractor's activities to be performed under this Contract. Coverage shall be primary and non-contributory with any other insurance and self-insurance.

C. "TAIL" COVERAGE. If any of the required professional liability insurance is on a "claims made" basis, Contractor shall either maintain either “tail" coverage or continuous "claims made" liability coverage, provided the effective date of the continuous “claims made” coverage is on or before the effective date of this Contract, for a minimum of 24 months following the later of (i) Contractor’s completion and Agency’s acceptance of all Services required under this Contract, or, (ii) The expiration of all warranty periods provided under this Contract. Notwithstanding the foregoing 24-month requirement, if Contractor elects to maintain “tail” coverage and if the maximum time period

“tail” coverage reasonably available in the marketplace is less than the 24-month period described above, then Contractor shall maintain “tail” coverage for the maximum time period that “tail” coverage is reasonably available in the marketplace for the coverage required under this Contract. Contractor shall provide to Agency, upon Agency’s request, certification of the coverage required under this section 4.C.

D. NOTICE OF CANCELLATION OR CHANGE. There shall be no cancellation, material change, potential exhaustion of aggregate limits or non-renewal of insurance coverage(s) without 30 days' written notice from this

Contractor or its insurer(s) to Agency. Any failure to comply with the reporting provisions of this clause shall constitute a material breach of Contract and shall be grounds for immediate termination of this Contract by Agency.

E. CERTIFICATE(S) OF INSURANCE. Contractor shall provide to Agency Certificate(s) of Insurance for all required insurance before delivering any Goods and performing any Services required under this Contract. The

Certificate(s) must specify all entities and individuals who are endorsed on the policy as Additional Insured (or Loss

Payees). Contractor shall pay for all deductibles, self-insured retention and self-insurance, if any.