Att-A-Sample-Contract S-10900-00015976~1.pdf

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“A&E Related Services Agreement

CONTRACT NO.: P-10900-000XXXXX

Resulting from OregonBuys Solicitation #: S-10900-00015976

Project Name: Oregon Aviation Update – Phase 1 – Chapter 8 – Economic Impact of Oregon Airports

(Contract includes federal funds): Yes Expenditure Account (“EA”) #: Aviation AIP Grant #: 3-14-0000-024-2026

This Contract is between the State of Oregon, by and through its Oregon Department of Aviation the “Owner” or “ODAV” and

Company Contract # Address PCA Project/Phase City, State Zip Phone E-mail

(the “Consultant”) (collectively Owner and Consultant are referred to as the "Parties" and individually as a “Party”). The Owner’s Representative identified below will perform all project management services and contract administration on behalf of Agency. The Owner’s Representative shall be Consultant’s primary contact for the Project, including for notice and invoicing purposes.

Alex Thomas, Planning, Policy, & Programs Manager

3040 25th St. SE, Salem, OR. 97302

Phone: 971-375-2357 E-mail: Alex.R.Thomas@ODAV.Oregon.Gov

This Contract is for Services related to completion of the up Oregon Aviation Plan Chapter 8 Update project more particularly described as follows (the “Project”):

This project is to update Chapter 8, Economic Impact of Oregon Airports, of the Oregon Aviation Plan (OAP) to reflect current and future aviation system needs, evaluate airport roles, and support statewide and regional decision-making. The update will assist the FAA and the Oregon Department of Aviation (ODAV) in identifying system priorities and future infrastructure investment needs. ODAV intends to operate its system planning projects in alignment with the FAA’s Continuous State Aviation System Plan (CSASP) guidelines, ensuring that planning efforts remain current, data-driven, and responsive to the evolving needs of Oregon’s aviation system.

1. Contract Effective Date and Term. This Contract shall become effective on the date the Contract is fully executed by the Parties and all required State of Oregon approvals have been obtained (the “Effective Date”). No Services shall be performed prior to the Effective Date. Consultant shall perform its obligations according to this Contract including, https://www.oregon.gov/aviation/airports/planning-and-programs/Documents/OAP/2019/10OAP-Ch8-Economic-Impact.pdf https://www.oregon.gov/aviation/airports/planning-and-programs/Pages/Planning-Programs-Overview.aspx

P-10900-000XXXXX Page 2 of 31 as applicable, through final completion of the project unless this Contract is terminated or suspended. Unless otherwise amended or terminated, this Contract shall expire ________________. The required schedule for performance under the Contract is specified in Exhibit A, Statement of Work and Exhibit E: Delivery Schedule

2. Statement of Work. Generally, the Services to be performed by Consultant on the Project consist of the following (the “Services”):

This aviation system planning effort is to update Chapter 8 of the OAP, titled "Economic Impact of Oregon Airports", to reflect the current role and value of Oregon’s aviation system within the state economy. Updating the OAP from its 2018 version to reflect current data is essential to ensure that the state's aviation infrastructure and policies align with current needs and future challenges.

Key objectives include:

• Update and Expand Economic Impact Analysis:

• Assess Sector-Specific Impacts:

• Incorporate Equity and Geographic Distribution:

• Identify Economic Risks and Opportunities:

• Support Legislative and Funding Justification:

• Alignment with the Oregon Aviation Plan:

The Services are more specifically described in the EXHIBIT A, Statement of Work.

3. Compensation and Payment. The maximum amount payable to Consultant under this Contract, which includes the amount of any allowable and reimbursable expenses, is $__________, as detailed further in Exhibit B, Compensation.

No payment shall be made for Services that are performed before: i) the Contract Effective Date and ii) a notice to proceed (“NTP”) has been issued by Owner.

Owner reasonably believes that, as of the Effective Date of this Contract, it has sufficient funds available and authorized for expenditure to finance the costs of the Contract within Owner's appropriation or limitation. Consultant understands and agrees that Owner's payment of amounts under the Contract is contingent on Owner receiving from the Oregon Legislative Assembly appropriations, limitations, or other expenditure authority sufficient to allow Owner, in the exercise of its reasonable administrative discretion, to continue to make payments under the Contract. In the event Owner staff responsible for oversight of the Contract become aware that sufficient funds are not available and authorized for expenditure to finance the costs of the Contract within Owner’s appropriation or limitation, Owner shall give prompt written notice to Consultant.

4. Definitions. For purposes of this Contract:

a) “Business Days” means 8:00 a.m. to 5:00 p.m., Pacific Time, Monday through Friday, excluding State of Oregon 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, unless Business Days is specified;

d) “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];

e) “Related Services” is defined in ORS 279C.100; and

f) “State” means State of Oregon.

5. Contract Documents and Order of Precedence. This Contract includes following exhibits, each of which is attached hereto and incorporated herein by this reference:

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EXHIBIT A: Statement of Work EXHIBIT E: Delivery Schedule EXHIBIT B: Consultant Compensation EXHIBIT F: Key Personnel & Rate Schedule EXHIBIT C: Insurance Requirements EXHIBIT G: FAA Procurement Provisions EXHIBIT D: RESERVED EXHIBIT H: FAA Contract Provisions

Unless a different order is required by law, this Contract shall be interpreted in the following order of precedence: this Contract (including all amendments, if any) less all Exhibits, attachments and other documents/information incorporated into this Contract, then the Statement of Work, then all Exhibits, then any other attachments or documents/information incorporated into this Contract by reference.

6. Professional Standard of Care; Responsibility of Consultant; Representations and Warranties.

a. Professional Standard of Care. Consultant shall perform all Services under the Contract 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 Contract. Consultant shall prepare, in accordance with the Standard of Care, all drawings, plans, specifications, deliverables and other documents so they accurately reflect, fully comply with and incorporate all applicable laws, rules, and regulations, and so that they are complete and functional for the purposes intended, except as to any deficiencies due to causes beyond the control of Consultant.

Consultant shall, without additional compensation, correct or revise any errors or deficiencies in its designs, drawings, specifications and other Services.

ii. Owner’s review, approval or acceptance of, or payment for, the Services required under the Contract shall not be construed as an approval of the adequacy of the Services or to operate as a waiver of any rights under the Contract or of any cause of action arising out of the performance of the Contract, and Consultant shall be and remain liable to Owner in accordance with applicable law for all damages to Owner caused by Consultant’s negligent performance of any of the Services furnished under the Contract or negligent failure to perform any of the Services under the Contract.

iii. The rights and remedies of Owner provided for under the Contract 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 Contract.

v. Permits and Licenses:

1. Permits and licenses to conduct business. Unless otherwise specified in Exhibit A, Statement of Work, Consultant shall obtain, hold, maintain and fully pay for during the term of the Contract all permits and licenses required by law for Consultant to conduct its business and perform the Services under the Contract.

2. Permits and licenses required for the Project. Unless otherwise specified in Exhibit A, Statement of Work, Consultant shall obtain, hold and maintain during the term of the Contract 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 Owner shall pay for such permits and licenses. Consultant shall review the Project site, if applicable, and the nature of the Services that Consultant shall perform under the Contract. Consultant shall advise Owner throughout the course of the Project 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.

c. Consultant represents and warrants to Owner that:

i. Consultant has the power and authority to enter into and perform this Contract and the persons executing the Contract on behalf of Consultant has the actual authority to bind Consultant to the terms of this Contract;

ii. this Contract, when executed and delivered is a valid and binding obligation of Consultant, enforceable in accordance with its terms;

iii. the provisions of this Contract do not conflict with or result in a default under any agreement or other instrument binding upon Consultant and do not result in a violation of any law, regulation, court decree or court order or other legal process applicable to Consultant;

iv. the Services under the Contract will be performed in accordance with the professional standard of care set forth in this Section;

v. Consultant is duly licensed to perform the Services, and if there is no licensing requirement for the

P-10900-000XXXXX Page 4 of 31 profession or Services, is duly qualified and professionally competent to perform the Services;

vi. Consultant is an experienced firm having the skill, legal capacity, professional ability and capabilities and resources necessary to perform all the Services required under the Contract;

vii. Consultant is, or shall become, in a manner consistent with the Standard of Care, familiar with all current laws, rules, and regulations which are applicable to the performance of the Services; and

viii. Consultant has no undisclosed liquidated and delinquent debt owed to the State or any department or agency of the State.

d. Warranties Cumulative. The warranties set forth in this Section are in addition to, and not in lieu of, any other warranties provided.

7. Key Persons.

a. Consultant acknowledges and agrees that Owner selected Consultant and is entering into the Contract because of the special qualifications of Consultant’s key personnel (“Key Persons” or “Key Personnel”), which may include specific staff agreed upon during Contract negotiations. In particular, Owner, through the Contract is engaging the expertise, experience, judgment and personal attention of the Key Persons listed in Exhibit F.

b. No Key Person may delegate performance of any management powers or other responsibilities the Key Person is required to provide under the Contract to another of Consultant’s or subconsultant’s personnel without first obtaining the written consent of Owner. Further, Consultant shall not re-assign or transfer any Key Person to other duties or positions such that the Key Person is no longer available to provide Owner with the Key Person’s expertise, experience, judgment, and personal attention according to any schedule established under the Contract without first obtaining Owner's prior written consent to such re-assignment or transfer. Notification of request to change a Key Person shall be in writing (via e-mail or other form as may be required by Owner.) Throughout the term of the Contract, Consultant shall provide updated information (if requested by Owner) to demonstrate the continuing qualifications of any staff working on Owner projects, including those approved as Key Persons.

c. Reassignment or Transfer of Key Person. In the event Consultant requests that Owner approve a reassignment or transfer of a Key Person:

i. Consultant shall provide a resume for the proposed substitute demonstrating that the proposed replacement has qualifications that are equal to or better than the qualifications of the person being replaced.

ii. Owner shall have the right to interview, review the qualifications of, and approve or disapprove the proposed replacement(s) for the Key Person.

iii. Any substitute or replacement for a Key Person must be approved in writing (e-mail acceptable) and shall be deemed to be a Key Person under the Contract.

iv. Consultant agrees that the time/costs associated with the transfer of knowledge and information for a Key Person replacement is not a cost borne by Owner and shall not be billed to Owner. This includes labor hours spent reviewing Contract/Project documentation, participation in meetings with personnel associated with the Contract/Project, and participating in site visits to become familiar with the Project.

8. Subconsultants.

a. Consultant shall provide a list of all sub-consultants which Consultant intends to utilize on the Project (the “Sub-Consultants”). This list shall include such information on the qualifications of the Sub-Consultants as may be requested by Owner. Owner reserves the right to review the Sub-Consultants proposed. Consultant shall not retain a Sub-Consultant to which Owner has a reasonable objection. Consultant shall obtain Owner's written consent prior to entering into any subcontracts for any of the Services required by the Contract.

b. In addition to any other provisions Owner may require, Consultant shall include, in any permitted subcontract under the Contract, contractual provisions that shall require any subcontractor (which may also be referred to as “subconsultant”) to comply with Sections 6, 10, 12, 13, 16(g), 16(k), and 16(o) of these Contract provisions and the limitations provided in Exhibit B Compensation, in the performance of the subcontracted Services under the Contract, as if the subcontractor were the Consultant. Owner’s consent to any subcontract shall not relieve Consultant of any of its duties or obligations under the Contract, including with respect to any Services, whether performed or to be performed by Consultant or a subcontractor.

c. Consultant shall pay all Sub-Consultants and other subcontractors as required by Consultant’s contracts with those Sub-Consultants and subcontractors. Consultant agrees that Owner has no direct or indirect contractual obligation or other legal duty whatsoever to pay the Sub-Consultants and other subcontractors of Consultant or otherwise ensure that Consultant makes full and timely payment to those Sub-Consultants and subcontractors for services performed on the Project.

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9. Design Within Funding Limit. Reserved.

10. 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 Contract.

ii. “Third Party Intellectual Property” means any intellectual property owned by parties other than Owner 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 Owner pursuant to the Contract.

b. Work Product. All Work Product created by Consultant pursuant to the Contract, 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 Owner. Owner and Consultant agree that Work Product that constitutes original works of authorship (the “Original Work Product”) is “work made for hire” of which Owner is the author within the meaning of the United States Copyright Act. If for any reason Original Work Product created pursuant to the Contract is not “work made for hire,” Consultant hereby irrevocably assigns to Owner any and all of its rights, title, and interest in all Original Work Product created pursuant to the Contract, whether arising from copyright, patent, trademark, trade secret, or any other state or federal intellectual property law or doctrine. Upon Owner’s reasonable request, Consultant shall execute such further documents and instruments necessary to fully vest such rights in Original Work Product in Owner. Consultant forever waives any and all rights relating to Original Work Product created pursuant to the 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. However, see Sections 10.c, 10.d, 10.e and 10.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 Owner to reasonably enjoy and use any Work Product, Consultant hereby grants to Owner 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 Owner to authorize contractors, consultants and others to do the same on Owner’s behalf. At the request of Consultant, Owner 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 Owner to reasonably enjoy and use any Work Product, Consultant shall secure on Owner’s behalf and in the name of Owner, 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 and the pre-existing elements of the Third Party Intellectual Property employed in the Work Product, including the right of Owner to authorize contractors, consultants and others to do the same on Owner’s behalf.

e. Limited Owner 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, Owner shall indemnify and hold Consultant harmless from liability arising out of Owner’s re-use or alteration of the Work Product.

f. Consultant Use of Work Product. Notwithstanding anything to the contrary in this Section 10, Consultant may refer to the Work Product in its brochures or other literature that Consultant uses for advertising purposes and, unless specified otherwise in Exhibit A – Statement of Work, Owner 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 Owner-owned Work Product on other unrelated projects, except for any “Confidential Information” protected from disclosure under the provisions of Section 12 below, pertaining to Confidentiality and Non-Disclosure.

11. Certified Firms and Certified Firm Outreach Plan.

a. Certified Firms. Respecting certification as a disadvantaged business enterprise, minority-owned business, woman-owned business, business that a veteran owns or an emerging small business under ORS 200.055 (a “Certified Firm”), as and when applicable, the Consultant shall maintain any certifications applicable to the

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Consultant, and require in its subcontracts that Sub-Consultants and subcontractors maintain any applicable certifications required by Section 2, Chapter 325, Oregon Laws 2015, as amended by Section 26, Chapter 565, Oregon Laws 2015 as a material condition of the Contract.

b. If the Consultant, Sub-Consultant, or subcontractor was awarded the Contract or any underlying subcontract, as applicable, in the course of the Owner’s carrying out an affirmative action goal, policy or program under ORS 279A.100 – 279A.107, and fails to maintain the required certification, Owner may terminate the Contract, require the Consultant to terminate the Sub-Consultant or subcontractor, or exercise any of the remedies reserved for breach of the Contract. Pursuant to ORS 279A.110, Consultant shall not discriminate against a Certified Firm, in the awarding of subcontracts under this Contract; and

c. Certified Firm Outreach Plan. Consultant’s Certified Firm Outreach Plan submitted as part of the procurement process for this Contract is incorporated by reference into this Contract as though fully set forth herein, and Consultant shall conduct the outreach, subcontracting and assistance efforts included in Consultant’s Certified Firm Outreach Plan.

12. Confidentiality and Nondisclosure.

a. Confidential Information. Consultant acknowledges that it and its employees and agents may, in the course of performing their responsibilities under the Contract, be exposed to or acquire information that is confidential to Owner. Any and all information that Owner provides to Consultant or its employees or agents in the performance of the Contract that Owner 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 Owner designates as confidential, is deemed to be confidential information of Owner (“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 Owner to others without restrictions similar to those imposed by the Contract; (iii) is rightfully in Consultant’s possession without the obligation of nondisclosure prior to the time of its disclosure under the Contract; (iv) is obtained from a source other than Owner without the obligation of confidentiality, (v) is disclosed with the written consent of Owner, 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 Owner’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 Owner 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 Owner in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Consultant shall advise Owner 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 12(b), and Consultant shall, at its expense, cooperate with Owner in seeking injunctive or other equitable relief in the name of Owner against any such person. Consultant agrees that, except as directed by Owner, Consultant will not at any time during or after the term of the Contract disclose, directly or indirectly, any Confidential Information to any person, except in accordance with the Contract, and that upon termination of the Contract or at Owner’s request, Consultant shall turn over to Owner 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 Owner of such subpoena or other legal process, provide Owner with copies of any subpoena, other legal process and any other written materials supporting the subpoena or other legal process, and otherwise cooperate with Owner in the event Owner decides to oppose the disclosure of the Confidential Information. In the event Owner decides not to oppose such subpoena or other legal process or Owner’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.

c. Injunctive Relief. Consultant acknowledges that breach of this Section, including but not limited to, disclosure of any Confidential Information, will give rise to irreparable injury to Owner that is inadequately compensable in damages. Accordingly, Owner may seek and obtain injunctive relief against the breach or threatened breach of this Section, in addition to any other legal remedies that may be available. Consultant acknowledges and agrees that the covenants contained herein are necessary for the protection of the legitimate business interests of Owner and are reasonable in scope and content;

d. Publicity, Media and Third Party Contacts. Consultant shall provide no news release, press release, or any other statement to a member of the news media, any third party or the public regarding this Project, without Owner’s prior written authorization.

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e. Security. Consultant shall comply with all virus-protection, access control, back-up, password, and other security and other information technology policies of Owner when using, having access to, or creating systems for any of Owner’s computers, data, systems, personnel, or other information resources, or when accessing the Owner’s buildings and real property.

13. Indemnity.

a. CLAIMS FOR OTHER THAN PROFESSIONAL LIABILITY. Consultant shall indemnify, defend, save, and hold harmless the State of Oregon, its agencies, 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 Contract.

b. CLAIMS FOR PROFESSIONAL LIABILITY. To the fullest extent permitted by law, and except to the extent prohibited under ORS 30.140(4), Consultant shall indemnify, defend, save, and hold harmless the State of Oregon, its agencies, 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 Contract.

c. INDEMNITY FOR INFRINGEMENT CLAIMS. Without limiting the generality of Section 13.a or 13.b, Consultant expressly agrees to indemnify, defend, save and hold harmless the State of Oregon, and its 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 Owner by Consultant that may be the subject of protection under any state or federal intellectual property law or doctrine, or Owner’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 13.c, based solely on the following: Consultant’s compliance with Owner specifications or requirements, including, but not limited to the required use of tangible or intangible items provided by Owner.

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. OWNER’S ACTS OR OMISSIONS. This Section does not include indemnification by Consultant of the State of Oregon or Owner or their officers, agents, and employees, for the acts or omissions of the State of Oregon, Owner or their officers, agents, and employees, whether within the scope of the Contract or otherwise.

14. Insurance. Consultant shall maintain in effect for the duration of this Contract, or any other periods required herein, the insurance set forth in Exhibit C.

15. Termination.

a. Termination by Mutual Consent. The Contract may be terminated at any time, in whole or in part, by mutual written consent of the Parties.

b. Owner's Right to Terminate for Convenience. Owner may, at its sole discretion, terminate this Contract, in whole or in part, when such termination is in the public interest of the Owner, upon written notice to Consultant specifying the scope of the termination and the termination date of the Contract.

c. Owner may terminate this Contract immediately, in whole or in part, upon written notice to Consultant, or such later date as Owner may establish in such notice, upon the occurrence of any of the following events:

i. Owner fails to receive appropriations, limitations or other expenditure authority sufficient to allow Owner, 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 Contract are prohibited or Owner 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

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v. Consultant commits any material breach or default of any covenant, warranty, obligation, certification or agreement under the Contract, fails to perform the Services under the Contract within the time specified or any extension thereof, or so fails to perform the Services as to endanger Consultant's performance under the Contract in accordance with its terms, and such breach, default or failure is not cured within 30 calendar days after Owner's notice to Consultant, or such longer period as Owner may specify in such notice.

d. Cessation of Services. Upon receiving a notice of termination, and except as otherwise directed in writing by Owner, Consultant shall immediately cease all activities related to the Services or the Project.

e. Consultant’s Right to Terminate for Cause.

i. Consultant may terminate this Contract if Owner fails to make any payment to Consultant required under this Contract within forty-five (45) calendar days after receiving written notice from Consultant of such failure; or

ii. Consultant may terminate this Contract, for reasons other than non-payment, if Owner commits any material breach or default of any covenant, warranty, obligation or agreement under this Contract, fails to perform under the Contract within the time specified, or so fails to perform as to endanger Consultant’s performance under this Contract, and such breach, default or failure is not cured within thirty (30) calendar days after delivery of Consultant’s notice, or such longer period as Consultant may specify in such notice.

f. Delivery of Work Product/Retained Remedies of Owner. As directed by Owner, Consultant shall, upon termination, promptly deliver to Owner all documents, information, works in progress, Work Product and other property that are deliverables or would be deliverables if the Contract had been completed. By Consultant's signature on this Contract, Consultant allows Owner to use Work Product and other property for Owner's intended use. The rights and remedies of Owner provided in this are not exclusive and are in addition to any other rights and remedies provided by law or under this Contract.

g. Payment upon Termination.

i. In the event of termination pursuant to Sections 15(a), 15(b), 15(c)(i), 15(c)(ii) or 15(e), Consultant’s sole remedy shall be a claim for the sum designated for accomplishing the Services multiplied by the percentage of Services completed and accepted by Owner plus Consultant’s reasonable Contract close-out costs, less previous amounts paid and any claim(s) which Owner has against Consultant, except in the event of a termination under Section 15(c)(i), where no payment will be due and payable for Services performed or costs incurred after the last day of the current biennium, consistent with Section 3. Within thirty (30) days after termination, Consultant shall submit an itemized invoice for all un-reimbursed Services completed before termination and all Contract close-out costs actually incurred by Consultant. Owner shall not be obligated to pay for any such costs invoiced to and received by Owner later than thirty (30) days after termination. If previous amounts paid to Consultant exceed the amount due to Consultant under this subsection, Consultant shall promptly refund any excess amount upon demand; or

ii. In the event of termination pursuant to Sections 15(c)(iii), 15(c)(iv), 15(c)(v), Owner shall have any remedy available to it in law or equity, including, but not limited to, undertaking collection by administrative offset, or garnishment if applicable, of all monies due for Services to recover liquidated and delinquent debt owed to the State of Oregon or any department or agency of the State of Oregon. Offsets or garnishment may be initiated after the Contractor has been given notice, if required by law. Such remedies may be pursued separately, collectively or in any order whatsoever.

If it is determined for any reason that Consultant was not in default under Sections 15(c)(iii), 15(c)(iv), or 15(c)(v), the rights and obligations of the Parties shall be the same as if the Contract was terminated pursuant to Section 15(b).

16. General Provisions.

a. Contract Performance. Consultant shall at all times perform the Services in accordance with the terms and conditions of this contract, diligently and without delay, to carry out the project and to achieve Owner’s objectives. Consultant shall punctually fulfill all Contract requirements consistent with the schedule for the performance of Services set forth in Exhibits A and E. Expiration or termination of the Contract shall not extinguish, prejudice, or limit either party's right to enforce this Contract with respect to any default or defect in performance.

b. Owner’s Separate Contracts. Owner may retain the services of an independent project manager and other consultants as needed to fulfill Owner’s objectives.

c. Independent Contractor; Responsibility for Taxes and Withholding; Consultant Oversight.

i. Consultant, by its signature on the Contract, certifies that it is an independent contractor as defined in ORS 670.600 and as described in IRS Publication 1779, which is available at:

https://www.irs.gov/pub/irs-pdf/p1779.pdf. Consultant shall perform all required Services as an independent contractor. Although Owner reserves the right (i) to determine the delivery schedule (as mutually acceptable to Owner and Consultant) for the Services to be performed and (ii) to

P-10900-000XXXXX Page 9 of 31 evaluate the quality of the completed performance, Owner 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 Owner, as those terms are used in ORS 30.265.

ii. Consultant shall be responsible for all federal or state taxes applicable to compensation or payments paid to Consultant under the Contract and, unless Consultant is subject to backup withholding, Owner 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 Contract, Consultant shall submit an updated W-9 form (https://www.irs.gov/pub/irs-pdf/fw9.pdf) to Owner 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 Contract, except as a self-employed individual. If any payment under this Contract is to be charged against federal funds, Consultant certifies that it is not currently employed by the federal government.

iii. 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 Owner who are performing services or construction work on projects within the scope of the Contract, unless otherwise expressly agreed to in writing by the Parties. The Parties agree, however, that this provision does not in any way revise or adjust Consultant’s professional responsibility to report to Owner any information pertaining to a project, or to performance by other consultants or contractors on a project, that would adversely affect Owner 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 Contract.

d. Compliance with Conditions Concerning Hours of Labor (ORS 279C.520)

i. Consultant shall not prohibit any of its employees from discussing the employee’s rate of wage, salary, benefits or other compensation with another employee or another person and may not retaliate against an employee who discusses the employee’s rate of wage, salary, benefits or other compensation with another employee or another person.

ii. Consultant shall pay employees at not less than time and one-half for all overtime worked in excess of 40 hours in any one week and for work on legal holidays, except for individuals who are excluded from receiving overtime under personal services contracts pursuant to ORS 653.010 to

653.261 or under other applicable law.

iii. Consultant shall give notice in writing to employees who work on this contract, either at the time of hire or before work begins on the contract, or by posting a notice in a location frequented by employees, of the number of hours per day and days per week that the contractor may require the employees to work.

e. Prohibition on Discriminatory Wage Rates. Consultant shall comply with the prohibitions set forth in ORS 652.220, and shall not discriminate against any of Consultant’s employees in the payment of wages or other compensation for work of comparable character, the performance of which requires comparable skills, or pay any employee at a rate less than another for comparable work, based on an employee’s membership in a “protected class.” For purposes of this provision, a “protected class” means a group of persons distinguished by race, color, religion, sex, sexual orientation, gender identity, national origin, marital status, veteran status, disability or age. Consultant’s failure to comply with these requirements is a breach of the Contract that entitles the Owner to terminate the Contract for cause.

f. Compliance with Applicable Law. Consultant shall comply with all federal, state and local laws, regulations, executive orders and ordinances applicable to the Services. Owner's performance under this Contract is conditioned upon Consultant's compliance with the provisions of ORS 279C.505, 279C.515, 279C.520, and 279C.530, which are hereby incorporated by reference. Consultant, the Sub-Consultants, if any, and all employers providing Services, labor or materials under this Contract are subject employers under the Oregon workers' compensation law and shall comply with ORS 656.017. All rights and remedies available to the Owner under applicable federal, state and local laws are also incorporated by reference herein and are cumulative with all rights and remedies under the Contract.

g. Successors and Assigns. The provisions of this Contract shall be binding upon and shall inure to the benefit of the Parties and their respective successors and assigns. After the original Contract is executed, Consultant shall not enter into any Sub-Consultant agreements for any of the Services, assign or transfer any of its interest in this Contract or delegate any of its duties or performance under this Contract, without the prior written consent of Owner. Any purported assignment, delegation or disposition, without the prior written consent of Owner 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

P-10900-000XXXXX Page 10 of 31 assignment, delegation, or disposition, without the prior written consent of Owner, is void.

h. No Third Party Beneficiaries. Nothing contained in this Contract shall create a contractual relationship with or a cause of action in favor of a third party against Owner or Consultant. Consultant's Services under this Contract shall be performed solely for Owner's benefit and no other entity or person shall have any claim against Consultant because of this Contract for the performance or nonperformance of Services hereunder.

i. Access to Records. For not less than six (6) years after the Contract’s expiration or termination, Owner, the Secretary of State's Office of the State of Oregon, the federal government, and their duly authorized representatives shall have access to the books, documents, papers, and records of Consultant and the Sub- Consultants which pertain to the Contract for the purpose of making audits, examination, excerpts, and transcripts. If, for any reason, any part of this Contract, any Project-related consultant contract or any Project-related construction contract(s) is involved in litigation, Consultant shall retain all pertinent records for not less than three years or until all litigation is resolved, whichever is longer. Consultant shall provide Owner and the other entities referenced above with full access to these records in preparation for and during litigation.

j. 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 Contract. Consultant shall demonstrate its legal capacity to perform the Services under this Contract in the State of Oregon prior to executing this Contract.

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

l. Survival. All rights and obligations shall cease upon termination or expiration of the Contract, except for the rights and obligations set forth in Sections 5, 6, 10,12,13,15(d), 15(g), 16(g),16(j), 16(k), 16(o) and all other rights and obligations which expressly or by their nature or context are intended to survive.

m. Time is of the Essence. Consultant agrees that time is of the essence in Consultant’s performance of its obligations under the Contract.

n. Notice. Except as otherwise expressly provided in this Contract, any notices to be given hereunder shall be given in writing by personal delivery, e-mail, or first class mail, postage prepaid, to Consultant or Owner at the address or number set forth on Exhibit A, or to such other address or number as either party may provide pursuant to this “Notice” section. Any notice delivered by mail shall be deemed to be given five (5) calendar days after the postmark. Any notice by personal delivery shall be deemed to be given when actually delivered. Regular, day-to-day communications between the Parties may be transmitted through one of the methods set forth above, in person, by telephone, by e-mail, or by other similar electronic transmission.

o. Severability. The Parties agree that if any term or provision of this Contract 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 Contract did not contain the particular term or provision held to be invalid.

p. Counterparts. The 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 the Contract so executed shall constitute an original.

q. Governing Law; Venue; Consent to Jurisdiction. This Contract shall be governed by, construed in accordance with 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 Owner and Consultant that arises from or relates to this Contract shall be brought and conducted solely and exclusively within the Circuit Court of Marion County for the State of Oregon; provided, however, if a Claim must be brought in a federal forum, then it shall be brought and conducted solely and exclusively within the United States District Court for the District of Oregon. In no event shall this “Governing Law; Jurisdiction; Venue” section be construed as a waiver by the State of Oregon of any form of defense or immunity, whether based on sovereign immunity, governmental immunity, immunity based on the Eleventh Amendment to the United States Constitution or otherwise. CONSULTANT, BY EXECUTION OF THIS CONTRACT, HEREBY

CONSENTS TO THE IN PERSONAM JURISDICTION OF SAID COURTS.

r. Amendments. Owner may amend the Contract to the extent permitted by applicable statutes and administrative rules and as mutually agreed upon by Owner and Consultant. Consultant shall not commence any Services authorized under an amendment, and the amendment is not effective, unless it is in writing, signed by the Parties, and all approvals required by applicable law have been obtained.

s. Merger Clause; Waiver; Interpretation. The Contract, including everything incorporated by reference, constitutes the entire agreement…