35436_Attachment A_Sample PA~1.docx
DOCX document 152 KB Posted
- Attached to
- ODA Pavement Maintenance Program
- Solicitation number
- S-10900-00005121
- Issued by
- Marion County, Oregon
About this file
This document is an Attachment A to a Sample Price Agreement (PA) between the Oregon Department of Aviation (ODA) and a Professional Services Consultant. The PA outlines the terms for the ODA Pavement Maintenance Program, which provides architectural, engineering, and related services for pavement maintenance projects at various public-use airports throughout Oregon. The Scope of Services includes bid and construction administration, program development, pavement design, environmental documentation, and coordination with airport sponsors and the Pavement Evaluation Program consultant. The PA has a 3-year term for assignment of Work Order Contracts (WOCs), which may be extended depending on performance and available funding.
The compensation methods for the WOCs may include Cost Plus Fixed Fee, Fixed Price, Time and Materials, or Price Per Unit. Reimbursable expenses are limited to approved travel costs based on state guidelines. The PA has a shared maximum Not-to-Exceed amount of $6,000,000 for all awarded PAs. The Consultant must comply with various state and federal requirements, including licensing, insurance, records maintenance, and disadvantaged business enterprise provisions as applicable.
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| File | Type | Posted |
|---|---|---|
| 35436_Att_C.docx | DOCX document | |
| 35436_Notice of Intent to Award.pdf | ||
| 35436_RFP.docx | DOCX document | |
| HE1259-22 - Community Tobacco Prevention Project -Final.pdf |
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Text version
SOLICITATION NOTE: Proposer’s / Offeror’s are not required to complete this contract. Items have been left intentionally blank and will be completed with the successful proposer / offeror.
Attachment A to RFP #35436
SAMPLE PRICE AGREEMENT
OREGON DEPARTMENT OF AVIATION
PRICE AGREEMENT NO. BXXXXX
Professional Services and Related Services Price Agreement Title: ODA Pavement Maintenance Program
This “Price Agreement” or “PA” is between the State of Oregon, acting by and through its Department of Aviation (“Agency” or “ODA”) and __[legal company name as provided to IRS (and DBA name if applicable)]_______ a XXXXX corporation(“Consultant”). Agency and Consultant together are referred to as “Parties” and individually referred to as “Party.”
Agency’s designated Contract Administrator and Consultant’s contact for this PA (“PA Administrator”) are identified in Exhibit J, Contact Information and Key Persons. This PA sets forth the terms and conditions applicable to services that may be required under Work Order Contracts or “WOCs” entered into between the Parties under this PA. This PA does not guarantee that any WOCs will be entered between the Parties.
For purposes of this PA and any WOCs assigned under this PA:
a) “business days” means calendar days, excluding Saturdays, Sundays and all State of Oregon recognized holidays;
b) “calendar days” means any day appearing on the calendar, whether a weekday, weekend day, national holiday, State of Oregon holiday or other day;
c) “days” means calendar days;
d) “Airport Sponsor” or “Sponsor” means a public agency with control of a public-use airport or a private owner of a public-use airport;
e) “COBID” means Certification Office for Business Inclusion and Diversity;
f) “FAA” means Federal Aviation Administration;
g) “NEPA” means National Environmental Protection Act;
h) “NPIAS” means National Plan of Integrated Airport Systems;
i) “Professional Services” means architectural, engineering, photogrammetric mapping, transportation planning or land surveying services that must be procured using qualifications based selection procedures [see ORS 279C.100 and ORS 279C.110];
j) “Related Services” is defined in ORS 279C.100; and
k) “State” means State of Oregon.
PART I. GENERAL PRICE AGREEMENT PROVISIONS
The following provisions apply to this PA:
| 1. | Effective Date; Expiration and WOC Assignment Period; Termination. |
| a. | Effective Date. This PA shall become effective on the date this PA has been signed by the Parties and all required approvals have been obtained. |
| b. | Expiration and WOC Assignment Period |
| i. | Expiration. This PA shall have a limited WOC assignment period but will not expire until the later of the following occurs: (1) the expiration of the WOC assignment period, or (2) the expiration or termination of all WOCs assigned under this PA. |
| ii. | WOC Assignment Period. Unless this PA is sooner terminated, the WOC assignment period (which may be extended as provided in Part I, Section 5.b below) ends 3 years from the effective date of this PA. A WOC is considered assigned (for purposes of meeting the WOC Assignment Period limitation) when the WOC selection process is completed and the selection documentation has been submitted. All WOC assignments are tentative until negotiations are successfully completed, all required signatures have been obtained on the WOC, and Agency has issued a notice to proceed (“NTP”) to Consultant. |
| c. | Termination |
| i. | Termination by Mutual Consent. This PA may be terminated at any time by mutual written consent of the Parties. |
| ii. | Agency's Right to Terminate for Convenience. Agency may, at its sole discretion, terminate this PA, in whole or in part, upon 30 calendar days’ written notice to Consultant. |
| d. | Effect of Expiration or Termination. Expiration or termination of the PA shall not result in expiration or termination of any WOC issued before PA expiration or termination. Such WOCs shall remain in effect, and may be amended, until the particular WOC expires or terminates in accordance with its terms. |
2. Scope of Services Consultant shall perform all services and submit all deliverables as described in any WOCs executed under this PA (the “Services”). Services included in a WOC must be within the Scope or Menu of Services set forth in Exhibit A, attached and incorporated into this PA by this reference. Consultant agrees to provide Services required under each WOC in accordance with the terms and conditions for WOCs as set forth in this PA.
| 3. | Compensation |
| a. | Maximum Not-to-Exceed (“NTE”) Amount. There is no guarantee that any specific amount of work or overall dollar amounts will be assigned via WOCs under this PA. This PA does not have an individual NTE. Instead the collective maximum NTE compensation for all the WOCs issued under all of the PAs awarded from RFP #35436, including any allowable expenses, is $6,000,000.00. Agency will use this shared maximum NTE amount for assignment of WOCs under all of the PAs. |
| b. | Method of Compensation. The payment methodology and options available for each WOC are described in Exhibit B - Compensation. Each WOC will identify and incorporate from Exhibit B the agreed-upon payment methodology and options applicable to the specific WOC. |
| 4. | Price Agreement Documents. |
| a. | Exhibits Attached and Incorporated |
This PA includes the following exhibits, each of which is attached and incorporated into this PA by reference:
· Exhibit A – Scope of Services
· Exhibit B – Compensation
· Exhibit C – Insurance Requirements
· Exhibit D – Title VI Non-Discrimination Provisions
· Exhibit E – Disadvantaged Business Enterprise (“DBE”) Provisions (applicable to federally funded WOCs with DBE goal assigned)
· Exhibit E.1 - Disadvantaged Business Enterprise (“DBE”) Provisions, No-Goal (applicable to federally funded WOCs with no DBE goal assigned)
· Exhibit F – Work Order Contract Assignment and Requirements
· Exhibit G – Performance Evaluation
· Exhibit J – Contact Information and Key Persons
b. Exhibits incorporated by Reference from Website(s)--RESERVED
The full text of the above referenced exhibits may be reviewed and downloaded on line at the following address: https://www.oregon.gov/ODOT/Business/Procurement/Pages/PSK.aspx
EACH WOC INCORPORATES APPLICABLE PROVISIONS FROM THE THEN MOST CURRENT VERSIONS OF THE FOREGOING EXHIBITS (subsections a. and b.) AT THE TIME THE WOC IS EXECUTED. WOCS MAY EXCLUDE SOME EXHIBITS IN THEIR ENTIRETY IF THEY ARE NOT APPLICABLE TO A PARTICULAR WOC.
Revisions to the exhibits under subsections a. and b. made after execution of a WOC will apply to that WOC only if the revised exhibits are incorporated by amendment to the WOC under the provisions of Section 25 below.
5. Amendments to PA. Agency may amend this PA to the extent permitted by applicable statutes and administrative rules. Except as provided in Section 5.c below, any such amendments shall not be effective unless in writing, signed by the parties, and all approvals required by applicable law have been obtained.
a. Not-to-Exceed Amount. Reserved.
| b. | WOC Assignment Period. Depending on Consultant performance, need and available funding, PAs may be amended to extend the WOC assignment period beyond the initial WOC assignment period. |
| c. | Changes via Electronic Amendment. The following amendments to this PA, when such amendments do not include changes to scope of work or not-to-exceed amount of the PA, may be accomplished by electronic amendments (sent via e-mail) that documents agreement by Consultant and Agency: |
(i) The addition of or change in Consultant's subcontractors approved by Agency;
(ii) The addition of or changes to Escalated Salary Rates (“ESRs”), Direct Non-Labor Rates (“DNLs”) and Negotiated Billing Rates (“NBRs”) for Consultant and its subcontractors (see Exhibit B, Part 1 - Section H);
(iii) Correction of errors, inaccuracies and omissions in the ESRs, DNLs and NBRs or other cost schedules;
(iv) Revisions to the WOC assignment period (within the limitations set forth in the PA.); and
(v) Revisions to designated Contract Administrator for the PA.
Agency reserves the right to issue requirements for the electronic amendments, including but not limited to specific language that must be included to document agreement by Consultant and Agency.
6. Reserved
PART II. TERMS & CONDITIONS APPLICABLE TO AND INCORPORATED INTO WORK ORDER CONTRACTS, AND APPLICABLE GENERALLY TO THIS PRICE AGREEMENT.
The following provisions apply to and are incorporated into Work Order Contracts under this PA. The following provisions are also generally applicable to this PA, and where the context so requires, the reference in a provision to “Work Order Contract” or “WOC” shall be read to mean this PA for purposes of applying the provision to this PA:
| 1. | Independent Contractor; Conflict of Interest; Responsibility for Taxes and Withholding; Consultant Oversight. |
| a. | Consultant, by its signature on the PA and WOC, certifies that it is an independent contractor as defined in ORS 670.600 and as described in IRS Publication 1779, which is available at http://www.irs.gov/pub/irs-pdf/p1779.pdf . Consultant shall perform all required Services as an independent contractor. Although Agency reserves the right (i) to determine the delivery schedule (as mutually acceptable to ODA and Consultant) for the Services to be performed and (ii) to evaluate the quality of the completed performance, Agency cannot and will not control the means or manner of Consultant's performance. Consultant is responsible for determining the appropriate means and manner of performing the Services. Consultant is not an “officer”, “employee”, or “agent” of Agency, as those terms are used in ORS 30.265. |
| b. | The ODOT Conflict of Interest Guidelines for Procurements and Contracts (“COI Guidelines”), as may be revised from time to time by Agency, is hereby incorporated into this PA with the same force and effect as though fully set forth herein, and is available at https://www.oregon.gov/ODOT/Business/Procurement/Pages/PSK.aspx. Consultant, by its signature on the WOC, certifies that: (i) Consultant and, to the best of its information, knowledge and belief, its Associates are in compliance with the COI Guidelines, and (ii) if submittal of a Conflict of Interest Disclosure Form is required, the information Consultant provided through the Conflict of Interest Disclosure is true, accurate and complete as of the WOC effective date or if not, Consultant has submitted to Agency a Conflict of Interest Disclosure Form using the form available at the above Internet address, that is true, accurate and complete as of the WOC effective date. In addition, Consultant shall submit to Agency a Conflict of Interest Disclosure Form, using the form available at the above Internet address, that is updated, true, accurate and complete no later than 10 business days following the date that Consultant becomes aware of any staffing, organizational or other material changes that result in nonconformance with disclosure requirements of the COI Guidelines. |
| c. | Consultant shall be responsible for all federal or State taxes applicable to compensation or payments paid to Consultant under the WOC and, unless Consultant is subject to backup withholding, Agency will not withhold from such compensation or payments any amount(s) to cover Consultant's federal or State tax obligations. Throughout the duration of the PA and any WOCs, Consultant shall submit an updated W-9 form (http://www.irs.gov/pub/irs-pdf/fw9.pdf) to Agency whenever Consultant’s backup withholding status or any other information changes. Consultant is not eligible for any social security, unemployment insurance or workers' compensation benefits from compensation or payments paid to Consultant under the WOC, except as a self‑employed individual. |
| d. | Consultant shall not be responsible for or have control over the means, manner, methods or techniques required of or used by other consultants or contractors under contract with Agency who are performing services or construction work on projects within the scope of the WOC, unless otherwise expressly agreed to in writing by the Parties. The Parties agree, however, that these Section 1.d. provisions do not in any way revise or adjust Consultant’s professional responsibility to report to Agency any information pertaining to a project, or to performance by other consultants or contractors on a project, that would adversely affect Agency or a particular project, to the extent any such information may come to the attention of Consultant during the performance of Services within the scope of the WOC. |
| 2. | Subcontracts and Assignment; Successors and Assigns |
| a. | Consultant shall obtain Agency's written consent prior to entering into any subcontracts for any of the Services required by the WOC, or in any manner assigning, selling or transferring any of its rights or interest under the WOC or delegate any of its duties or performance under the WOC. In addition to any other provisions Agency may require, Consultant shall include, in any permitted subcontract under the WOC, contractual provisions that shall require any subcontractor (which may also be referred to as “subconsultant”) to comply with Part II Sections 5, 6, 7, 8, 9, 12, 19, and 24 of these WOC provisions and the limitations provided in Exhibit B Compensation, in the performance of the subcontractor’s Services that are the subject of the WOC, as if the subcontractor were Consultant. Agency’s consent to any subcontract shall not relieve Consultant of any of its duties or obligations under the WOC, including with respect to any Services, whether performed or to be performed by Consultant or a subcontractor. |
| b. | The provisions of the WOC shall be binding upon and shall inure to the benefit of the Parties hereto, and their respective successors and permitted assigns, if any. |
| c. | Any purported assignment, delegation or disposition in violation of subsection a. above is prohibited, whether voluntary or involuntary, by merger, consolidation, stock transfer, asset sale, change in control, dissolution, operation of law, or by any other manner. Any purported assignment, delegation, or disposition in violation of subsection a. above is void. |
3. No Third Party Beneficiaries. Agency and Consultant are the only Parties to the WOC and are the only Parties entitled to enforce its terms. Nothing in the WOC gives, is intended to give, or shall be construed to give or provide any benefit or right, whether directly, indirectly or otherwise, to third persons unless such third persons are individually identified by name in the WOC and expressly described as intended beneficiaries of the terms of the WOC.
4. Funds Available and Authorized; Payments. Consultant shall not be compensated for Services performed under the WOC by any other agency or department of the State of Oregon. Agency reasonably believes that, as of the effective date of the WOC, it has sufficient funds available and authorized for expenditure to finance the costs of the WOC within Agency's appropriation or limitation. Consultant understands and agrees that Agency's payment of amounts under the WOC is contingent on Agency receiving from the Oregon Legislative Assembly appropriations, limitations, or other expenditure authority sufficient to allow Agency, in the exercise of its reasonable administrative discretion, to continue to make payments under the WOC. In the event Agency staff responsible for oversight of the WOC become aware that sufficient funds are not available and authorized for expenditure to finance the costs of the WOC within Agency’s appropriation or limitation, Agency shall give prompt written notice to Consultant.
| 5. | Representations and Warranties. |
| a. | Consultant’s Representations and Warranties. |
Consultant represents and warrants to Agency, for this PA and the WOCs, that (i) Consultant has the power and authority to enter into and perform the WOC, (ii) the WOC, when executed and delivered is a valid and binding obligation of Consultant, enforceable in accordance with its terms, (iii) the Services under the WOC will be performed in accordance with the professional standard of care set forth in Section 6 below; (iv) Consultant is duly licensed to perform the Services, and if there is no licensing requirement for the profession or Services, is duly qualified and professionally competent to perform the Services; (v) Consultant is an experienced firm having the skill, legal capacity, professional ability and resources necessary to perform all the Services required under the WOC; and (vi) Consultant has no undisclosed liquidated and delinquent debt owed to the State or any department or agency of the State
b. Warranties Cumulative. The warranties set forth in this Section are in addition to, and not in lieu of, any other warranties provided.
| 6. | Professional Standard of Care; Responsibility of Consultant; Design Within Funding Limit. |
| a. | Professional Standard of Care. |
Consultant shall perform all Services under the WOC in accordance with the degree of skill and care ordinarily used by competent practitioners of the same professional discipline when performing similar services under similar circumstances, taking into consideration the contemporary state of the practice and the project conditions.
| b. | Responsibility of Consultant. |
| (i) | Consultant shall be responsible for the professional quality, technical accuracy, and coordination of all designs, drawings, specifications, and other Services and deliverables furnished by Consultant under the WOC, and all of the foregoing shall also be in accordance with Consultant’s approved Quality Plan. Consultant shall, without additional compensation, correct or revise any errors or deficiencies in its designs, drawings, specifications and other Services and deliverables. |
| (ii) | Agency’s review, approval or acceptance of, or payment for, the Services required under the WOC shall not be construed to operate as a waiver of any rights under the WOC or of any cause of action arising out of the performance of the WOC, and Consultant shall be and remain liable to Agency in accordance with applicable law for all damages to Agency caused by Consultant’s negligent performance of any of the Services furnished under the WOC or negligent failure to perform any of the Services under the WOC. |
| (iii) | The rights and remedies of Agency provided for under the WOC are in addition to any other rights and remedies provided by law. |
(iv) If Consultant is comprised of more than one legal entity (for example, a joint-venture or partnership), each such entity shall be jointly and severally liable under the WOC.
| c. | Design Within Funding Limit. |
| When the Services under the WOC include preparation of design plans for the project: |
(i) Consultant shall accomplish the design Services required under the WOC so as to permit construction of the project within Agency’s budget for construction as set forth in the WOC. Consultant shall promptly advise Agency’s Contract Administrator for the WOC if it finds the project being designed will exceed or is likely to exceed the funding limitations and it is unable to design a usable project within these limitations. Upon receipt of such information, the Contract Administrator for the WOC will review Consultant’s revised estimate of construction cost. Agency may, if it determines the estimated construction contract price set forth in the WOC is so low that award of a construction contract not in excess of such estimate is improbable, authorize a change in scope or materials as required to reduce the estimated construction cost to an amount within the estimated construction contract price set forth in the WOC, or Agency may adjust such estimated construction contract price.
(ii) Prior to releasing the bid for the construction contract, Agency will prepare an estimate of constructing the design submitted. If Agency’s estimator(s) determines Consultant’s design exceeds Agency’s budget for the construction contract as set forth in the WOC (and as may be revised per Section (i) above), then Consultant shall perform such redesign and other Services as are necessary to permit contract award within the funding limitation. Consultant shall perform these additional Services at no increase in the price of the WOC. However, Consultant will not be required to perform such additional Services at no cost to Agency if Consultant’s design exceeds Agency’s budget (as set forth in the WOC) as a result of conditions beyond Consultant’s reasonable control.
| 7. | Ownership of Work Product. |
| a. | Definitions. The following terms have the meanings set forth below: |
(i) “Consultant Intellectual Property” means any intellectual property owned by Consultant and developed independently from the WOC.
(ii) “Third Party Intellectual Property” means any intellectual property owned by parties other than Agency or Consultant.
(iii) “Work Product” means every invention, discovery, work of authorship, trade secret or other tangible or intangible item, and all intellectual property rights therein, that Consultant is required to deliver to Agency pursuant to the WOC.
| b. | Work Product. All Work Product created by Consultant pursuant to the WOC, including derivative works and compilations, and whether or not such Work Product is considered a “work made for hire,” shall be the exclusive property of Agency. Agency and Consultant agree that Work Product that constitutes original works of authorship (the “Original Work Product”) is “work made for hire” of which Agency is the author within the meaning of the United States Copyright Act. If for any reason Original Work Product created pursuant to the WOC is not “work made for hire,” Consultant hereby irrevocably assigns to Agency any and all of its rights, title, and interest in all Original Work Product created pursuant to the WOC, whether arising from copyright, patent, trademark, trade secret, or any other State or federal intellectual property law or doctrine. Upon Agency’s reasonable request, Consultant shall execute such further documents and instruments necessary to fully vest such rights in Original Work Product in Agency. Consultant forever waives any and all rights relating to Original Work Product created pursuant to the WOC, 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. However, see Sections 7.c., 7.d., 7.e. and 7.f. immediately below, for provisions applicable to Consultant Intellectual Property, Third Party Intellectual Property, Consultant Intellectual Property derivative works and Third Party Intellectual Property derivative works. |
| c. | Consultant Intellectual Property. In the event that any Work Product is Consultant Intellectual Property or a derivative work based on Consultant Intellectual Property or a compilation that includes Consultant Intellectual Property, or in the event any Consultant Intellectual Property is needed by Agency to reasonably enjoy and use any Work Product, Consultant hereby grants to Agency an irrevocable, non-exclusive, non-transferable, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display Consultant Intellectual Property and the pre-existing elements of the Consultant Intellectual Property employed in the Work Product, including the right of Agency to authorize contractors, consultants and others to do the same on Agency’s behalf. At the request of Consultant, Agency shall take reasonable steps to protect the confidentiality and proprietary interests of Consultant in any Consultant Intellectual Property licensed under this Section, within the limits of the Oregon Public Records Law (ORS 192.311 through 192.478) and the Oregon Uniform Trade Secrets Act (ORS 646.461 to 646.475). |
| d. | Third Party Intellectual Property. In the event that Work Product is Third Party Intellectual Property or a derivative work based on Third Party Intellectual Property or a compilation that includes Third Party Intellectual Property, or in the event any Third Party Intellectual Property is needed by Agency to reasonably enjoy and use any Work Product, Consultant shall secure on Agency’s behalf and in the name of Agency, an irrevocable, non-exclusive, non-transferable, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the Third Party Intellectual Property, including the right of Agency to authorize contractors, consultants and others to do the same on Agency’s behalf. |
| e. | Limited Agency Indemnity. To the extent permitted by the Oregon Constitution, Article XI, Section 7, and by the Oregon Tort Claims Act, ORS 30.260 through 30.400, Agency shall indemnify and hold Consultant harmless from liability arising out of Agency’s re-use or alteration of the Work Product. |
| f. | Consultant Use of Work Product. Notwithstanding anything to the contrary in this Section 7, Consultant may refer to the Work Product in its brochures or other literature that Consultant uses for advertising purposes and, unless specified otherwise in the WOC, Agency hereby grants to Consultant a non-exclusive, non-transferable, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display Agency-owned Work Product on other unrelated projects, except for any “Confidential Information” protected from disclosure under the provisions of Section 8 below, pertaining to Confidentiality and Non-Disclosure. |
| 8. | Confidentiality and Non-Disclosure |
| a. | Confidential Information. Consultant acknowledges that it and its employees and agents may, in the course of performing their responsibilities under the WOC, be exposed to or acquire information that is confidential to Agency. Any and all information that Agency provides to Consultant or its employees or agents in the performance of the WOC that Agency designates as confidential (either on the document itself or through related correspondence), as well as all reports and other documents and materials (including software) that result from Consultant’s use of such information and any other Work Product that Agency designates as confidential, is deemed to be confidential information of Agency (“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 Agency to others without restrictions similar to those imposed by the WOC; (iii) is rightfully in Consultant’s possession without the obligation of nondisclosure prior to the time of its disclosure under the WOC; (iv) is obtained from a source other than Agency without the obligation of confidentiality, (v) is disclosed with the written consent of Agency, or; (vi) is independently developed by employees or agents of Consultant who can be shown to have had no access to the Confidential Information. |
| b. | Non-Disclosure. Consultant agrees to hold Confidential Information in strict confidence, using at least the same degree of care that Consultant uses in maintaining the confidentiality of its own confidential information, and shall not, without Agency’s prior written consent, copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give, or disclose Confidential Information to third parties, or use Confidential Information for any purposes whatsoever, other than the provision of Services to Agency hereunder. Consultant shall advise each of its employees and agents of their obligations to keep Confidential Information confidential. Consultant shall use reasonable efforts to assist Agency in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Consultant shall advise Agency immediately if 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 Section 8(b), and Consultant shall, at its expense, cooperate with Agency in seeking injunctive or other equitable relief in the name of Agency against any such person. Consultant agrees that, except as directed by Agency, Consultant will not at any time during or after the term of the WOC disclose, directly or indirectly, any Confidential Information to any person, except in accordance with the WOC, and that upon termination of the WOC or at Agency’s request, Consultant shall turn over to Agency all documents, papers, and other matter in Consultant's possession that embody Confidential Information. In the event Consultant is required to disclose Confidential Information pursuant to a subpoena or other legal process, Consultant shall notify Agency of such subpoena or other legal process, provide Agency with copies of any subpoena, other legal process and any other written materials supporting the subpoena or other legal process, and otherwise cooperate with Agency in the event Agency decides to oppose the disclosure of the Confidential Information. In the event Agency decides not to oppose such subpoena or other legal process or Agency’s decision to oppose the subpoena or legal process has not been successful, Consultant shall be excused from the confidentiality provisions of this Section, to the extent necessary to meet the requirements of the subpoena or other legal process controlling the required disclosure. |
| 9. | INDEMNITY. |
| a. | CLAIMS FOR OTHER THAN PROFESSIONAL LIABILITY. Consultant shall indemnify, defend, save, and hold harmless the State of Oregon, the State Aviation Board and its members, the Oregon Department of Aviation, their officers, agents and employees from any and all claims, suits, actions, losses, liabilities, damages, costs and expenses, including attorney fees, of whatsoever nature, resulting from or arising out of the acts or omissions of Consultant or its subcontractors, or their respective agents or employees, under the WOC. |
| b. | CLAIMS FOR PROFESSIONAL LIABILITY. Consultant shall indemnify, defend, save, and hold harmless the State of Oregon, the State Aviation Board and its members, the Oregon Department of Aviation, their officers, agents and employees from any and all claims, suits, actions, losses, liabilities, damages, costs and expenses, including attorney fees, arising out of the professionally negligent acts, errors or omissions of Consultant or its subcontractors, or their respective agents or employees, in the performance of Consultant’s professional services under the WOC. |
| c. | INDEMNITY FOR INFRINGEMENT CLAIMS. Without limiting the generality of Section 9.a or 9.b, Consultant expressly agrees to indemnify, defend, save and hold harmless the State of Oregon, the State Aviation Board and its members, the Oregon Department of Aviation, their agencies, subdivisions, officers, directors, agents, and employees from any and all claims, suits, actions, losses, liabilities, damages, costs and expenses, including attorney fees, arising out of or relating to any claims that Consultant’s services, the Work Product or any other tangible or intangible items delivered to agency by Consultant that may be the subject of protection under any State or federal intellectual property law or doctrine, or agency’s use thereof, infringes any patent, copyright, trade secret, trademark, trade dress, mask work, utility design, or other proprietary right of any third party; provided, that State shall provide Consultant with prompt written notice of any infringement claim. Provided, however, Consultant shall not be obligated to indemnify, defend, save and hold harmless the State and Agency under this Section 9.c, based solely on the following: Consultant’s compliance with Agency specifications or requirements, including, but not limited to the required use of tangible or intangible items provided by Agency. |
| d. | DEFENSE QUALIFICATION. Notwithstanding Consultant’s foregoing defense obligations, neither Consultant nor any attorney engaged by Consultant 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. The State of Oregon may, at any time at its election assume its own defense and settlement in the event that it determines that Consultant is prohibited from defending the State of Oregon, or that Consultant is not adequately defending the State of Oregon's interests, or that an important governmental principle is at issue or that 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 Consultant if the State of Oregon elects to assume its own defense. |
| e. | AGENCY’S ACTS OR OMISSIONS. This Section 9 does not include indemnification by Consultant of the State of Oregon, the State Aviation Board, Oregon Department of Aviation and its officers agents and employees, for the acts or omissions of the State of Oregon, the State Aviation Board, Oregon Department of Aviation and its officers agents and employees, whether within the scope of the WOC or otherwise. |
10. Insurance. Consultant shall carry insurance as indicated on Exhibit C throughout the term of the WOC.
| 11. | Termination |
| a. | Termination by Mutual Consent. The WOC may be terminated at any time, in whole or in part, by mutual written consent of the Parties. |
| b. | Agency's Right to Terminate for Convenience. Agency may, at its sole discretion, terminate the WOC, in whole or in part, upon 30 calendar days’ prior written notice to Consultant. |
| c. | Agency's Right to Terminate for Cause. Agency may terminate the WOC, in whole or in part, immediately upon written notice to Consultant or at such later date as Agency may establish in such notice, upon the occurrence of any of the following events: |
| (i) | Agency fails to receive appropriations, limitations or other expenditure authority sufficient to allow Agency, in the exercise of its reasonable administrative discretion, to continue to make payments for Consultant’s Services; |
| (ii) | Federal, State or local laws, regulations or guidelines are modified or interpreted in such a way that either the Services under the WOC are prohibited or Agency is prohibited from paying for such Services from the planned funding source; |
(iii) Consultant no longer holds any license or certificate that is required to perform the Services;
(iv) Consultant has liquidated and delinquent debt owed to the State of Oregon or any department or agency of the State; or
| (v) | Consultant commits any material breach or default of any covenant, warranty, obligation, certification or agreement under the WOC, fails to perform the Services under the WOC within the time specified or any extension thereof, or so fails to perform the Services as to endanger Consultant's performance under the WOC in accordance with its terms, and such breach, default or failure is not cured within 14 calendar days after Agency's notice to Consultant, or such longer period as Agency may specify in such notice. |
| d. | Consultant's Right to Terminate for Cause. |
| (i) | Consultant may terminate the WOC by giving written notice to Agency if Agency fails to pay Consultant pursuant to the terms of the WOC and if Agency fails to cure within 14 calendar days after receipt of Consultant's written notice, or such longer period of cure as Consultant may specify in such notice. |
| (ii) | Consultant may terminate the WOC, for reasons other than nonpayment, if Agency commits any material breach or default of any covenant, warranty, obligation or agreement under the WOC, fails to perform under the WOC within the times specified, or so fails to perform as to endanger Consultant's performance under the WOC, and such breach, default or failure is not cured within 14 calendar days after Consultant's notice to Agency, or such longer period as Consultant may specify in such notice. |
| e. | Remedies. |
| (i) | In the event of termination pursuant to Sections 11(a), 11(b), 11(c)(i), 11(c)(ii) or 11(d), Consultant's sole remedy (except as otherwise required by applicable State or federal law) shall be a claim for the sum designated for performing the Services multiplied by the percentage of Services completed and accepted by Agency (with acceptance by Agency not to be unreasonably withheld), less previous amounts paid and any claim(s) which State has against Consultant, except in the event of a termination under Section 11(c)(i) where no payment will be due and payable for Services performed or costs incurred after the last day of the current appropriations or limitations, consistent with Section 4, Funds Available and Authorized; Payments. If previous amounts paid to Consultant exceed the amount due to Consultant under this subsection, Consultant shall pay all excess to Agency upon demand. |
| (ii) | In the event of termination pursuant to Section 11(c)(iii), 11(c)(iv) or 11(c)(v), Agency shall have any remedy available to it in law or equity. If it is determined for any reason that Consultant was not in default under Section 11(c)(iii), 11(c)(iv) or 11(c)(v), the rights and obligations of the Parties shall be the same as if the WOC was terminated pursuant to Section 11(b). |
(iii) In the event Consultant is in default under Section 11(c)(iv), Agency may:
1. Undertake collection by administrative offset, or garnishment if applicable, of all monies due for Services and Deliverables to recover liquidated and delinquent debt owed to the State of Oregon or any department or agency of the State. Offsets or garnishment may be initiated after Consultant has been given notice if required by law.
2. Pursue any or all of the remedies available under the PA, at law, or in equity.
(iv) 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, to the extent the remedies are not inconsistent.
f. Consultant's Tender Upon Termination/Retained Remedies of Agency. Upon receiving a notice of termination of the WOC, Consultant shall immediately cease all activities under the WOC, unless Agency expressly directs otherwise in such notice of termination. Upon termination of the WOC, Consultant shall deliver to Agency all documents, information, works-in-progress and other property that are or would be deliverables, had the WOC been completed. Upon Agency's request, Consultant shall surrender to anyone Agency designates all documents, information, research, works-in-progress, Work Product and other property that are deliverables, or would be deliverables had the WOC been completed, that are in Consultant’s possession or control and may be needed by Agency to complete the Services.
12. Records Maintenance; Access. Consultant, and its subconsultants, shall maintain all fiscal records relating to the WOC in accordance with generally accepted accounting principles. In addition, Consultant shall maintain all other records pertinent to the WOC and the project in such a manner as to clearly document Consultant's performance. Agency, the Oregon Secretary of State's Office, the federal grantor agency, the Comptroller General of the United States, and their duly authorized representatives shall have access, and Consultant shall permit the aforementioned entities and individuals access, to such fiscal records and other books, documents, papers, plans and writings of Consultant that are pertinent to the WOC to perform examinations and audits and make excerpts and transcripts. Consultant shall retain and keep accessible all such fiscal records, books, documents, papers, plans, and writings for a minimum of 6 years, or such longer period as may be required by applicable law, following final payment and expiration or termination of the WOC, or until the conclusion of any audit, controversy or litigation arising out of or related to the WOC, whichever date is later.
13. Performance Evaluations. Agency may conduct performance evaluation(s) on Consultant and any subconsultants during the PA term and the term of the WOC, which will be compiled and maintained by Agency, and become a written record of Consultant's performance, including information gained during an exit interview. Agency will provide copies of any performance evaluation documentation to the affected Consultant and upon request, to third parties, unless lawfully exempt from disclosure. The Performance Evaluation process is included in Exhibit G to this PA.
14. Compliance with Applicable Law. Consultant shall comply with all federal, State and local statutes, regulations, administrative rules, executive orders, ordinances and other laws applicable to the Services under the WOC, in effect at the time the WOC is executed and as may be amended, revised, enacted or adopted thereafter. Changes in these legal requirements after the execution of the WOC may or may not be the basis for modifications to Consultant’s schedule, scope and fee, depending on a reasonable assessment of the nature of the change, the extent to which the change was anticipated by Consultant or the Parties, and other circumstances then existing. Without limiting the generality of the foregoing, Consultant expressly agrees to comply with the following laws, regulations and executive orders to the extent they are applicable: (i) Title VI of the Civil Rights Act of 1964; (ii) Section V of the Rehabilitation Act of 1973; (iii) the Americans with Disabilities Act of 1990 and ORS 659A.142; (iv) all other applicable requirements of federal and State civil rights and rehabilitation statutes, rules and regulations; (v) the Clean Air Act (42 U.S.C. 7401-7671q); (vi) the Water Pollution Control Act as amended (33 U.S.C. 1251-1387); (vii) Executive Order 11738; (viii) Environmental Protection Agency regulations (40 CFR part 15); and (ix) and all applicable standards, orders, regulations and administrative rules established pursuant to the foregoing laws. Agency’s performance under the WOC is conditioned upon Consultant’s compliance with, and Consultant shall comply with, the obligations applicable to public contracts and intended for contractors under ORS 279C.520 and 279C.530, which are incorporated by reference herein. All rights and remedies available to Agency under applicable federal, State and local laws are also incorporated by reference herein and are cumulative with all rights and remedies under the PA and WOC. If conflicts are discovered among federal, State and local statutes, regulations, administrative rules, executive orders, ordinances and other laws applicable to the Services under the WOC, Consultant shall in writing request Agency to resolve the conflict. Consultant shall specify if the conflict(s) create a problem for the design or other Services required under the WOC.
| 15. | Permits and Licenses: |
| a. | Permits and licenses to conduct business. Unless otherwise specified in any WOC, Consultant shall obtain, hold, maintain and fully pay for during the term of the WOC all permits and licenses required by law for Consultant to conduct its business and perform the Services under the WOC. |
| b. | Permits and licenses required for the project. Unless otherwise specified in the WOC, Consultant shall obtain, hold and maintain during the term of the WOC all permits and licenses required for the project (for example, permits from regulatory authorities and use permits or licenses from owners of real and personal property), but Agency shall pay for such permits and licenses. Consultant shall review the project site and the nature of the Services that Consultant shall perform under the WOC. Consultant shall advise Agency throughout the course of the WOC as to the necessity of obtaining all project permits and licenses, the status of the issuance of any such permits and licenses, and any issues or impediments related to the issuance or continuation of any such permits and licenses. |
| 16. | Foreign Contractor. If Consultant is not domiciled in or registered to do business in the State of Oregon, Consultant shall promptly provide to the Oregon Department of Revenue and the Secretary of State Corporation Division all information required by those agencies relative to the WOC. |
17. Force Majeure. Neither Agency nor Consultant 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 other acts of political sabotage, or war where such cause was beyond the reasonable control of Agency or Consultant, respectively. Consultant 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 WOC.
18. Survival. All rights and obligations shall cease upon termination or expiration of the WOC, except for the rights and obligations set forth in Part I Section 4 and in Part II Sections 5, 6, 7, 8, 9, 11(e), 11(f), 12, 18, 19, 23, 24 and 27, and all other rights and obligations which, expressly or by their nature or context are intended to survive.
19. Time is of the Essence. Consultant agrees that time is of the essence in Consultant’s performance of its obligations under the WOC.
20. Notice. Except as otherwise expressly provided in the WOC, any communications between the Parties hereto or notices to be given hereunder shall be given in writing by e-mail, by personal delivery, facsimile, or mailing the same, postage prepaid, to Consultant or Agency at the e-mail address, the delivery address or facsimile number set forth in the WOC, or to such other addresses or numbers as either Party may hereafter indicate in writing to the other. Any notice or day-to-day communication sent by e-mail shall be deemed received when it is sent. The recipient of any notice sent by e-mail shall reply by e-mail to confirm receipt of such notice. Any communication or notice made by personal delivery shall be deemed to be received when actually delivered. Any communication or notice properly addressed and mailed shall be deemed received 5 calendar days after the date of mailing. Any communication or notice delivered by facsimile shall be deemed received on the date of the notice of successful transmission generated by the transmitting machine. To be effective, such facsimile transmission must be confirmed by telephone notice to Agency’s PA Administrator or Consultant’s representative, as applicable.
21. Severability. The Parties agree that if any term or provision of the WOC 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 WOC did not contain the particular term or provision held to be invalid. In such event, the Parties shall negotiate in good faith to agree on replacement language for the offending term or provision that will be consistent with the purposes of the WOC.
22. Counterparts. The WOC 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 the WOC so executed shall constitute an original.
| 23. | Dispute Resolution and Errors & Omissions Claims Process. In the event of a dispute between the Parties regarding any aspect of the PA, the WOC or performance under the WOC, the Parties agree to attempt in good faith to resolve any such dispute through direct communications and negotiations. |
| a. | Errors & Omissions Related. In the event those good faith efforts do not resolve disputes related to potential Errors and Omissions, the Parties agree to make good faith efforts to resolve the matter pursuant to the Errors & Omissions Claims Process (as may be revised from time to time by Agency), which is incorporated into this PA with the same force and effect as though fully set forth herein. The Errors & Omissions Claims Process is available at: https://www.oregon.gov/ODOT/Business/Procurement/Pages/PSK.aspx. |
| b. | Other Disputes. In the event good faith efforts do not resolve disputes unrelated to Errors & Omissions, the Parties agree to make a good faith effort to determine if mediation might be productive in resolving any such dispute. If the Parties determine that mediating the dispute would be productive, the Parties agree to use reasonable efforts to establish an agreement through which such mediation proceeding could take place. In the event such a mediation proceeding takes place, the Parties acknowledge and agree that any mediator or mediators retained to assist the Parties in resolving any dispute will not have the power to issue a decision that will bind the Parties, but will merely act as a facilitator in the process of the Parties’ attempting to resolve the dispute through mutual agreement. In the event that through good faith efforts or mediation proceedings (if entered into) it is determined that the dispute includes issues related to Errors and Omissions, the Errors & Omissions Claims Process shall be followed. |
24. Governing Law; Venue; Consent to Jurisdiction. The WOC shall be governed by, construed and enforced 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 (or any other agency or department of the State of Oregon) and Consultant that arises from or relates to the WOC 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, as mandated by federal law, be brought in a federal forum, then it shall be brought and conducted solely and exclusively within the…
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